CONVICTION ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE
Authored by: Ajay Kumar Sareen
1.1 INTRODUCTION: –
In this research paper, I’ll be discussing about the meaning of evidence, its definitions, types and the importance of circumstantial evidence in conviction. I would be starting from the meaning of evidence Law according to different sources and its various definitions. evidence Law is the most crucial and important law which has constructed the way for criminal law. As it is impossible to find direct evidence in each and every case. The criminal is not so dumb that he’ll leave evidence every time. Thus, circumstantial evidence plays an important role to know the truth as much as possible. I’ll discuss the meaning and definitions of evidence, various types of evidences with focus on circumstantial evidence and conviction based on circumstantial evidence.
Further, I’ll move on to the principles laid by the Hon’ble Supreme Court in various cases including landmark Judgements focusing on the admissive value of circumstantial evidence. The conviction trend followed by the Supreme Court during time. How conviction can be held on the basis of circumstantial evidence and when acquittal is given. How, the benefit of doubt affects it as the Prosecution has to establish its case beyond any reasonable doubt.
1.2 EVIDENCE : MEANING, DEFINITIONS
“Evidence forms the building blocks of the investigative process and for the final product to be built properly, evidence must be recognized, collected, documented, protected, validated, analysed, disclosed, and presented in a form which is acceptable to the Court.” 
- All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.
- All documents including electronic records produced for the inspection of the Court.
The word ‘evidence’ has been derived from the Latin word ‘evidere’ which means to show distinctly, to make clear to view or sight, to discover clearly, to make plainly certain, to certain, to ascertain, to prove. According to Sir Blackstone, ‘evidence’ signifies that which demonstrates, makes clear or ascertain the truth of the facts or points in issue either on one side or the other.
According to Sir Taylor, Law of evidence means through argument to prove or disprove any matter of fact. The truth of which is submitted to judicial investigation.
The expression “evidence”, as it relates to investigation, addresses a wide scope of data sources that may in the long run inform the Court to prove or disprove points at issue before the trier of fact. Sources of evidence includes anything from the observations of witnesses to the examination and assessment of physical items. It can even include the spatial relationships between people, places, and objects within the course of events. From the various types of evidence, the Court can draw inferences and reach conclusions to determine if a charge has been proven beyond a reasonable doubt.
Thinking about the idea of evidence within the Court framework, there are a wide variety of definitions and protocols that have advanced to direct the way evidence is characterized for consideration by the Court.
The general English meaning of evidence is “matter produced before a Court of law in an attempt to prove or disprove a point in issue, such as the statements of witnesses, documents , material objects, etc.”
1.2.1 TYPES OF EVIDENCE:-
220.127.116.11 Oral and Documentary evidence
- Oral evidence – Section 60 of the Indian evidence Act, 1872 prescribed the provision of recording oral evidence. All those statements which the Court permits or expects the witnesses to make in his presence regarding the truth of the facts are called Oral evidence. Oral evidence is that evidence which the witness has personally seen or heard. Oral evidence must always be direct or positive. evidence is direct when it goes straight to establish the main fact in issue.
- Documentary evidence – Section 3 of The Indian evidence Act says that all those documents which are presented in the Court for inspection such documents are called documentary evidences. In a case like this it is the documentary evidence that would show the actual attitude of the parties and their consciousness regarding the custom is more important than any oral evidence.
- Primary evidence – Section 62 of The Indian evidence Act says primary evidence is the Top-Most class of evidences. It is that proof which in any possible condition gives the vital hint in a disputed fact and establishes through documentary evidence on the production of an original document for inspection by the Court. It means the document itself produced for the inspection of the Court. In Lucas v. Williams Privy Council held “primary evidence is evidence which the law requires to be given first and secondary evidence is the evidence which may be given in the absence of that better evidence when a proper explanation of its absence has been given.”
- Secondary evidence – Section 63 says secondary evidence is the inferior evidence. It is evidence that occupies a secondary position. It is such evidence that on the presentation of which it is felt that superior evidence yet remains to be produced. It is the evidence which is produced in the absence of the primary evidence therefore it is known as secondary evidence. If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by Section 66 of the evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.”
Let me explain what constitutes direct and circumstantial evidence and how they differ. Direct evidence is evidence of a fact based on a witness‘s personal knowledge or observation of that fact. A person’s guilt of a charged crime may be proven by direct evidence if, standing alone, that evidence satisfies a jury beyond a reasonable doubt of the person’s guilt of that crime. circumstantial evidence is direct evidence of a fact from which a person may reasonably infer the existence or nonexistence of another fact. A person’s guilt of a charged crime may be proven by circumstantial evidence, if that evidence, while not directly establishing guilt, gives rise to an inference of guilt beyond a reasonable doubt. Let me give you an example of the difference between direct evidence and circumstantial evidence. Suppose that in a trial one of the parties is trying to prove that it was raining on a certain morning. A witness testifies that on that morning she walked to the subway and as she walked she saw rain falling, she felt it striking her face, and she heard it splashing on the sidewalk. That testimony of the witness‘s perceptions would be direct evidence that it rained on that morning. Suppose, on the other hand, the witness testified that it was clear as she walked to the subway, that she went into the subway and got on the train and that while she was on the train, she saw passengers come in at one station after another carrying wet umbrellas and wearing wet clothes and raincoats. That testimony constitutes direct evidence of what the witness observed. And because an inference that it was raining in the area would flow naturally, reasonably, and logically from that direct evidence, the witness‘s testimony would constitute circumstantial evidence that it was raining in the area.
- Direct evidence is that evidence which is very important for the decision of the matter in issue. The main fact when it is presented by witnesses, things and witnesses is direct, evidence whereby main facts may be proved or established that is the evidence of person who had actually seen the crime being committed and has described the offence. We need hardly point out that in the illustration given by us, the evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police only is called circumstantial evidence of, complicity and not direct evidence in the strict sense.
Direct evidence is evidence that will prove the point in fact without interpretation of circumstances. (Justice Department Canada, 2017). It is any evidence that can show the Court that something occurred without the need for the Judge to make inferences or assumptions to reach a conclusion. An eyewitness who saw the accused shoot a victim would be able to provide direct evidence. Similarly, a security camera showing the accused committing a crime or a statement of confession from the accused admitting to the crime could also be considered direct evidence. Direct evidence should not be confused with the concept of direct examination, which is the initial examination and questioning of a witness at trial by the party who called that witness. And, although each witness who provides evidence could, in theory, be providing direct testimony of their own knowledge and experiences, that evidence is often not direct evidence of the offence itself.
- Circumstantial evidence:- There is no difference between circumstantial evidence and indirect evidence. circumstantial evidence attempts to prove the facts in issue by providing other facts and affords an instance as to its existence. It is that which relates to a series of other facts than the fact in issue but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion.
Indirect evidence, also called circumstantial evidence, is all other evidence, such as the fingerprint of an accused found at the crime scene. Indirect evidence does not by itself prove the offence, but through interpretation of the circumstances and in conjunction with other evidence may contribute to a body of evidence that could prove guilt beyond a reasonable doubt (Justice Department Canada, 2017). Strong circumstantial evidence that only leads to one logical conclusion can sometimes become the evidence the Court uses in reaching belief beyond a reasonable doubt to convict an accused. It requires assumptions and logical inferences to be made by the Court to attribute meaning to the evidence.
“When one or more things are proved, from which our experience enables us to ascertain that another, not proved, must have happened, we presume that it did happen, as well in criminal as in civil cases.” (MacDonell, 1820)
circumstantial evidence demonstrates the spatial relationships between suspects, victims, timelines, and the criminal event. These spatial relationships can sometimes demonstrate that an accused person had a combination of intent, motive, opportunity, and/or the means to commit the offence, which are all meaningful features of criminal conduct. circumstantial evidence of intent can sometimes be shown through indirect evidence of a suspect planning to commit the offence, and/or planning to escape and dispose of evidence after the offence. A pre-crime statement about the plan could demonstrate both intent and motive, such as, “I really need some money. I’m going to rob that bank tomorrow.” circumstantial evidence of conflict, vengeance, financial gain from the commission of the offence can also become evidence of motive.
circumstantial evidence of opportunity can be illustrated by showing a suspect had access to a victim or a crime scene at the time of the criminal event, and this access provided opportunity to commit the crime. circumstantial evidence of means can sometimes be demonstrated by showing the suspect had the physical capabilities and/or the tools or weapons to commit the offence.
Presenting this kind of circumstantial evidence can assist the Court in confirming assumptions and inferences to reach conclusions assigning probative value to connections between the accused and a person or a place and the physical evidence. These circumstantial connections can create the essential links between a suspect and the crime.
There are many ways of making linkages to demonstrate circumstantial connections. These range from forensic analysis of fingerprints or DNA that connect an accused to the crime scene or victim, to witness evidence describing criminal conduct on the part of an accused before, during, or after the offence. The possibilities and variations of when or how circumstantial evidence will emerge are endless. It falls upon the investigator to consider the big picture of all the evidence and then analytically develop theories of how events may have happened. Once a reasonable theory has been formed, evidence of circumstantial connections can be validated through further investigation and analysis of physical exhibits to connect a suspect to the crime.
2.1 JUDICIAL DECISIONS WITH REGARD TO CIRCUMSTANTIALEVIDENCE
i. In Hanumant V. State of Madhya Pradesh, The Hon’ble Supreme Court Observed, “In dealing with circumstantial evidence there is always the danger that suspicion may take the place of legal proof. It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance , be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In other words there can be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
ii. In the case of Ashok Kumar V. State of Madhya Pradesh, the Hon’ble Supreme Court held-
- The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.
- Those circumstances should be of a definite tendency unerringly pointing towards the guilt of accused.
- The circumstances, taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
- The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
iii. In the case of Kallu V. State of Uttar Pradesh, the accused was tried for the murder of the deceased by shooting him with a country made pistol. A cartridge was found near the bed of the deceased. The accused was arrested at a distance of 14 miles from the village which was the place of occurrence. He produced a pistol from his house which indicated that he could alone have known of its existence there. The fire-arms expert proved that it was the same pistol from which the shot was fired, and deceased was killed. The Hon’ble Supreme Court while convicting the accused held “circumstantial evidence has established that the death of the deceased was caused by the accused and no one else.”
iv. In Bishnu Prasad Sinha V. State of Assam, Supreme Court effectively accepted the proposition that ordinarily death penalty would not be awarded if the connection is proved by circumstantial evidence, coupled with some other factors that are advantageous to the convict. It was held as follows:
The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, Appellant 1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt.”
v. In Aloke Nath Dutta V. State of West Bengal the principle that death penalty should ordinarily not be awarded in a case arising out of circumstantial evidence was broadly accepted along with the rider that there should be some “special reason” for awarding the death penalty. It was held as follows:
There are some precedents of this Court e.g. Sahdeo V. State of U.P. and Sk. Ishaque V. State of Bihar  which are authorities for the proposition that if the offence is proved by circumstantial evidence ordinarily death penalty should not be awarded. We think we should follow the said precedents instead and, thus, in place of awarding the death penalty, impose the sentence of rigorous imprisonment for life as against Aloke Nath. Furthermore, we do not find any special reason for awarding death penalty which is imperative.”
vi. In Swamy Shraddananda the view taken by Justice S.B. Sinha was that on the facts of the case, death sentence was not warranted but that the appellant should be awarded life sentence which must be meant as sentence for life. However, Justice Markandey Katju differed on the sentence to be awarded and expressed the view that the case was one where the murder was cold-blooded, calculated and diabolic. The learned Judge was of opinion that the case fell within the category of rarest of rare cases and it would be a travesty of justice if the death sentence is not affirmed. Accordingly, the learned Judge affirmed the death sentence.
In view of the difference of opinion with regard to the quantum of punishment, the matter was referred to a larger Bench of three learned Judges. The decision of the larger Bench is reported as Swamy Shradddananda V. State of Karnataka.
The larger Bench took the view that the case was one of circumstantial evidence only. However, considering the entire facts of the case, the Bench expressed its opinion on the quantum of punishment taking into consideration the gap in imprisonment between life imprisonment (which is normally 14 years) and death. While considering this, it was held that in view of the gap, the Court might be tempted into endorsing the death penalty but that it would be far more just, reasonable and a proper course of action to expand the options and bridge the gap.
This would be a re-assertion of the Constitution Bench decision in Bachan Singh besides being in accord with the modern trends of penology. Consequently, the death sentence was unanimously substituted by life imprisonment with a direction that the convict must not be released from prison for the rest of his life or for the actual term as specified in the order, as the case may be. The view expressed by Justice S.B. Sinha was endorsed and it was directed that the convict shall not be released from prison till the rest of his life. The view expressed by this Court is reproduced below:
The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this Court carrying a death sentence awarded by the trial Court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate.
What then should the Court do? If the Court‘s option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the Court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years’ imprisonment and death. It needs to be emphasised that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years’ imprisonment would amount to no punishment at all.
Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh  besides being in accord with the modern trends in penology.
In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be.
In conclusion, we agree with the view taken by Sinha, J. We accordingly substitute the death sentence given to the appellant by the trial Court and confirmed by the High Court by imprisonment for life and direct that he shall not be released from prison till the rest of his life.
vii. In Santosh Kumar Satishbhushan Bariyar V. State of Maharashtra this Court clearly laid down the law to the effect that while there is no prohibition in law in awarding a death sentence in a case of circumstantial evidence, but that evidence must lead to an exceptional case. It was said:
“The entire Prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind. We will assume that in Swamy Shraddananda, this Court did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would not be permissible. But, even in relation thereto the question which would arise would be whether in arriving at a conclusion some surmises, some hypothesis would be necessary in regard to the manner in which the offence was committed as contradistinguished from a case where the manner of occurrence had no role to play. Even where sentence of death is to be imposed on the basis of the circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case.”
viii. In Sushil Sharma V. State (NCT of Delhi) this Court considered the peculiar facts of the case and did not award the death penalty since the only evidence was circumstantial and there were some factors that were to the advantage of the appellant. It was held as follows:
“We notice from the above judgments that mere brutality of the murder or the number of persons killed or the manner in which the body is disposed of has not always persuaded this Court to impose death penalty. Similarly, at times, in the peculiar factual matrix, this Court has not thought it fit to award death penalty in cases, which rested on circumstantial evidence or solely on approver’s evidence. Where murder, though brutal, is committed driven by extreme emotional disturbance and it does not have enormous proportion, the option of life imprisonment has been exercised in certain cases.”
xi. Finally, in Kalu Khan V. State of Rajasthan this Court referred to Swamy Shraddananda and it was held, on the facts of the case, that the balance of circumstances introduces an uncertainty in the “culpability calculus” and therefore there was an alternative to the imposition of the death penalty. Accordingly, the sentence was commuted to imprisonment for life.
The result of the above discussion is that ordinarily, it would not be advisable to award capital punishment in a case of circumstantial evidence. But there is no hard and fast rule that death sentence should not be awarded in a case of circumstantial evidence. The precautions that must be taken by all the Courts in cases of circumstantial evidence is this: if the Court has some doubt, on the circumstantial evidence on record, that the accused might not have committed the offence, then a case for acquittal would be made out; if the Court has no doubt, on the circumstantial evidence, that the accused is guilty, then of course a conviction must follow.
If the Court is inclined to award the death penalty then there must be some exceptional circumstances warranting the imposition of the extreme penalty. Even in such cases, the Court must follow the dictum laid down in Bachan Singh that it is not only the crime, but also the criminal that must be kept in mind and any alternative option of punishment is unquestionably foreclosed. The reason for the second precaution is that the death sentence, upon execution, is irrevocable and irretrievable. Insofar as the present case is concerned, learned counsel for the appellant did not lay much stress on commuting the death sentence to one of life imprisonment only on the basis of the circumstantial evidence on record. Therefore, we need not examine the nature of the crime and other factors or detain ourselves in this regard. We have referred to the various decisions cited by learned counsel only for completeness of the record and to reaffirm the view that ordinarily death sentence should not be awarded in a conviction based on circumstantial evidence.
xii. In the most famous Kathua case i.e Mohd. Akhtar V. State of Jammu &
The Judge , after relying on several Supreme Court judgments,
said, “If at all, at any point of time, there was a minor lapse in the
investigation, the benefit of the doubt cannot be given to the accused in the present trial which is very serious in
Deciding on the plea raised by the defence that there was no direct evidence against any accused, the Judge ruled that the Court was of the opinion that in the present case the circumstances from which an inference of guilt is sought to be drawn have been cogently and firmly established.” The circumstantial evidence led by the Prosecution is definite which unerringly point out towards the guilt of the accused. The circumstances taken cumulatively from a chain so complete that there is no escape from the conclusion that within all human probability that the crime was committed by the accused and none else.”The circumstantial evidence is complete in itself and is incapable of explanation of any other hypothesis that the of guilt of the accused and such evidence is consistent with the guilt of the accused,” the Judge said, adding that the circumstantial evidence led by Prosecution has to be given “due weightage in the case”.
The Law in most of the democratic countries is based on the principles, “Innocent until proven guilty”. It is the duty of Prosecution to prove beyond any reasonable doubt that the accused has committed the offence. circumstantialevidence, even though it is allowed in certain cases, it is not enough to prove a case beyond any reasonable doubt. The Prosecution has to rely on the material evidence to get a conviction. But it is impossible to produce direct evidence in every case as no criminal will want to leave behind any evidence after committing any act and will try to escape from his liability in order to avoid punishment or conviction. There are some evidence such as the hearsay evidence except in few circumstances. It is the duty of both the parties to provide the best evidence possible. Thus, it is important to know the collection and producing of evidence to utilize it to the utmost effect. In case of Sarbir Singh V. State of Punjab, it was held that in cases depending on circumstantialevidence, it is true that the chain of events proved by the Prosecution must show that within all human probability the offence has been committed by the accused, but the Court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the Prosecution which induced the accused to follow a particular path. In Brajendra Singh V. State of Madhya Pradesh, it was held that circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e the guilt of the accused. The circumstances should be conclusive and proved by the Prosecution. Then, it is on the discretion of the Judge s whether to rely upon circumstantialevidence or not depending on the facts and circumstances of each case which are different. In my opinion, if the direct evidence is not available or not adequate, one has to take in consideration circumstantialevidence in order to inquire about the facts as there is another proposition of law in the modern world, “No guilty should escape punishment and no innocent be held liable” rather than the old one that 100 guilty men should be set free rather than one innocent be punished
This disclaimer informs readers that the views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author’s employer, organization, committee or other group or individual.
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