Coming straight to the point , it has been debated time and again since a long time that , “Can circumstantial evidence alone form the basis of conviction ?” In other words , “Is it fair to rely solely upon circumstantial evidence to convict anyone ?” First of all , it is imperative for us to understand what circumstantial evidence exactly is .
The word ‘circumstantial’ itself implies that what is evident directly from the circumstances in any particular case even though the evidence itself is not direct . We all know very well the time-tested and well established basic principle of law that a witness may lie but not the circumstances ! It is therefore not for nothing that many a times circumstantial evidence also becomes the only source for convicting a person ! Chief Justice M Monir in the book ‘Textbook On The Law Of Evidence’ on page 13 very elegantly differentiates between direct and circumstantial evidence and points out that , “English text-writers divide evidence into ( a ) direct or positive evidence and ( b ) indirect or circumstantial evidence . In this sense direct evidence is that which goes expressly to the very point in question and proves it , if believed , without aid from inference or deductive reasoning , e.g. , eye-witness to a murder is direct evidence . Circumstantial evidence does not prove the point in question directly , but establishes it only by inference . Thus , if there is no eye-witness to a murder the fact that A had the motive to murder B or that A was seen running away with a blood-stained knife from B’s room where B was found dead immediately after B’s cries were heard would be circumstantial evidence as against A .”
GS Pande who is Professor of Law ( Retd. ) in Lucknow University very rightly and lucidly explains what circumstantial evidence is all about in his enlightening book ‘Law Of Evidence’ on page 46 . He writes that , “Circumstantial evidence is that which relates to various circumstances which are associated with the real point in issue in such a way as to help the court in coming to a conclusion about the existence or non-existence of the facts in issue . It is often said that a witness may tell a lie but circumstances cannot . It is an exaggeration of its importance though it contains a grain of truth in so far as circumstances have no volition and they cannot have interest and motive which inspire a human being to give false evidence . However , circumstances can also mislead the court . Sometimes they can also be manipulated by human agency .” The last two lines of Prof GS Pande which I have just quoted is very important . All courts must before arriving at any judgment must take into account this crucial fact that circumstantial evidence is not manipulated by any human agency which includes police , CBI etc ! If they fail to take this into account , it will result in grave miscarriage of justice and an innocent person will wrongly be sent to the gallows for no fault except that circumstances implicate him/her in any given particular case !
Before convicting any person on circumstantial evidence alone , all the Courts including the Supreme Court are bound to take into account all the chain of circumstances which should directly point to the culpability of the accused and should not leave any straw of doubt because under no circumstances can the fundamental principle of law which states that no innocent person should ever be convicted even if it benefits an accused should not be violated and this is especially true in cases of death sentence as it is irreversible and cannot be cured after it is executed . This also explains why time and again human right lawyers keep raising their voice in support of abolition of death penalty . Even Judges of Supreme Court can err as they too are human and are not infallible which even they themselves very honestly and candidly admit for which I really admire them .
The evidentiary value of circumstantial evidence acquires immense significance when there is no direct evidence in any given particular case . It means a fact from which some other fact is inferred and deals with a fact on which an inference is to be founded . As there is the fallibility of inference , it is not considered the best type of evidence , is of an inferior type and it is a big gamble to rely exclusively on it and convict someone purely on circumstantial evidence alone ! This alone explains why we see huge controversies erupting when someone is sent to gallows on circumstantial evidence alone and the best example to cite here is that of Dhananjay Chatterjee case who was hanged in 2004 . This alone also explains why Supreme Court prefers to mostly acquit the accused in case there is no other evidence apart from circumstantial evidence and very rightly so .
Advocate Batuk Lal in his book ‘The Law Of Evidence’ in page 30 points out that , “Circumstantial evidence 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 .” It is also pointed out that circumstantial evidence is not to be confused with hearsay or secondary evidence . The circumstantial evidence is always direct and primary , i.e. , the facts from which the existence of the fact in issue to be inferred must be proved by direct evidence . BW Jone’s in his ‘The Law Of Evidence’ in 5th edition in Volume 1 on page 7 rightly points out that , “Circumstantial evidence refers to facts indirectly related to the fact in issue , these circumstances having been found by experience so associated with that fact that in the relation of cause and effect they lead to a satisfactory conclusion .”
Let me point out here that Sir Alfred Wills in his book on ‘Circumstantial Evidence’ has very neatly and lucidly explained what all rules have to be kept in mind in the case of circumstantial evidence :
1. The facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum ;
2. The burden of proof is always on the party who asserts the existence of any fact which infers legal accountability ;
3. In all cases , whether of direct or circumstantial evidence , the best evidence must be adduced which the nature of the case admits ;
4. In order to justify the inference of guilt , the inculpatory fact must be incompatible with the innocence of the accused and incapable of explanation , upon any other reasonable hypothesis than that of his guilt ;
5. If there be any reasonable doubt of guilt of the accused , he is entitled of the right to be acquitted .
Underhill in his book ‘Criminal Evidence’ in 5th edition Volume 1 on page 16 elaborates on circumstantial evidence stating that , “It consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience . It is evidence which tends to establish the fact to be proved through inference based on human experience that facts exists when a certain circumstances or set of circumstances is present .” Baron Parke also accorded a higher degree of evidentiary value to circumstantial evidence and observed that , “Circumstantial evidence , if cogent and properly let in is of better probative value than direct evidence , for any scheming witnesses might concoct a well-knit story .” Salmond too endorsed what Baron said and I quote him saying that , “It is usually more difficult to fabricate a convincing chain of circumstance than to utter a direct lie .”
Before convicting a person on circumstantial evidence alone , the Court must fully satisfy itself that the circumstances point unerringly to the guilt of the accused and that the accused is unable to satisfactorily explain the circumstances that leave him/her in dock . In Hukum Singh v State of Rajasthan AIR 1977 SC 1063 , the Supreme Court too held that the circumstances from which the conclusion of guilt is drawn must be fully proved . In Eradu v State AIR 1956 SC 316 , it was held by Supreme Court that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused .
It is also imperative to point out here that if there is an element of doubt in the evidentiary value of circumstantial evidence , then needless to say that the benefit of doubt will go in favour of the accused and not against him/her . This is what Supreme Court which is the highest court of our country has in most of the cases held time and again which all the courts of our country must respect and abide by . In Sharad Birdichand Sarda v State of Maharashtra , AIR 1984 SC 1622 , the Supreme Court elaborated the five golden principles of circumstantial evidence laid down in Hanumant v State of M.P. , AIR 1952 SC 343 which has been strictly abided by the Supreme Court itself in various leading cases and therefore are very important ! These five golden principles are as follows : –
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established .
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused , that is to say , they should not be explainable on any other hypothesis except that the accused is guilty .
3. The circumstances should be of a conclusive nature and tendency .
4. They should exclude every possible hypothesis except the one to be proved , and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that act must have been done by the accused .
Let me also point out here that Justice Murtaza Fazal Ali in Sharad Birdichand Sarda case held that , “It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence . This is trite law . However , where various links in a chain are in themselves complete , then a false plea or a false defence may be called into aid only to lend assurance to the Court . In other words , before using the additional link , it must be proved that all the links in the chain are complete and do not suffer from any infirmity . It is not the law that where there is any infirmity or lacuna in the prosecution case , the same could not be cured or supplied by a false defence or a plea which is not accepted by a Court . Before a false explanation can be used as additional link , the following essential conditions must be satisfied :
1. Various links in the chain of evidence led by the prosecution have been satisfactorily proved ;
2. The said circumstance point to the guilt of the accused with reasonable definiteness and ;
3. The circumstances is in proximity to the time and situation .
If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise . On the facts and circumstances of the present case this does not appear to be such a case . There is a vital difference between an incomplete chain of circumstances and a circumstance , which , after the chain is complete , is added to it merely to reinforce the conclusion of the Court . Where the prosecution is unable to prove any of the essential principles laid down in Hanumant’s case , the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea .” For a circumstantial evidence to be relied upon , it must fulfill the following conditions : –
1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established .
2. Such circumstances must be conclusive in nature . They should point unerringly to the conclusion that it was the accused and the accused alone who perpetrated the crime and such circumstance should be incompatible with the innocence of the accused . The circumstances concerned ‘must or should’ and not ‘may be’ established . In Shivaji Sahebrao Babade v State of Maharashtra , AIR 1973 SC 2622 , it was observed by the Apex Court that , “Certainly , it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions . There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ .”
3. All the circumstances must be complete and not incomplete in sequence .
4. There should not be any gap left in the chain of evidence . It must be so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability , the act must have been done by the accused as was rightly held by the Supreme Court in Kusum Ankama Rao v State of A.P. , AIR 2008 SC 2819 .
5. Circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence . In short , the circumstances from which an inference is drawn must have to be shown to the closely linked with the principal fact sought to be inferred from the circumstances and this was held so in Nargundkar v State of MP AIR 1952 SC 343.
6. It is true that no chain should be left out but yet it is not necessary that every chain should be clear . Some of them may be inferred from proved facts .
7. If murder is caused by poison , it must be proved that death was caused by poison , that accused had poison in his possession and that accused had opportunity to administer the poison to the deceased .
In a catena of decisions , the Supreme Court has relied upon circumstantial evidence in convicting the accused . In NS Nagendra v State of Karnataka 2014 (1) Supreme 352 , it was held by the Supreme Court that when chain of circumstances is complete conviction cannot be interfered with . In Prakash v State of Rajasthan 2013 (2) Crimes 245 (SC) , prosecution establishing complete chain of circumstances from last seen theory to motive to recovery at the instance of accused persons . No infirmity in conviction and sentence . Conviction on circumstantial evidence . In State of Maharashtra v Bharat Fakira Dhiwar , AIR 2002 SC 16 , the Supreme Court held that where all the circumstantial evidence clearly and unerringly pointed to the guilt of the accused and the circumstances strongly lent the support to the evidence of child witness , ignoring and brushing aside those circumstance by the High Court and acquitting the accused was not proper . In Krishna Ghosh v State of West Bengal , AIR 2009 SC 2819 , the accused persons were convicted for offences punishable under Sections 498-A , 302 read with Section 34 of IPC . The High Court dismissed the appeal . The accused appealed to Apex Court on ground that the case rested on circumstantial evidence alone . The facts were that the deceased woman had died of injuries caused by the physical assault on her whose dead body was found in her matrimonial home . The death happened within one year and four months of the marriage . The accused were absconding soon after the incident . The Supreme Court held the appeal without merit and conviction was held to be proper . Dr Justice Arijit Pasayat observed that , “There is no doubt that the conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence as far back as in 1952 .” In Ram Avtar v State ( Delhi Administration ) , AIR 1985 SC 1692 , the Supreme Court said that in a case of murder , circumstantial evidence must be complete . The appellant was convicted under Section 302 of the IPC . He had committed murder of his wife . The case was wholly dependent upon circumstantial evidence . The prosecution had proved the chain completely and therefore he was convicted and his appeal was dismissed .
There are also a catena of landmark decisions where Supreme Court has refrained from convicting an accused on circumstantial evidence . In a recent case , KT Palanisamy v State of Tamil Nadu , AIR 2008 SC 1095 , the appellant was held not guilty of the offence of murder of the deceased due to the following reasons –
1. The dead body of the deceased was not recovered .
2. There was no evidence of death .
3. It was not shown that there was enough water in the river or current in the water so as to take a dead body away .
4. All the prosecution witnesses were related to the deceased therefore the chances of their deposing falsely could not be ruled out .
In this very case , Justice SB Sinha observed that , “It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone , indisputably all the links in the chain must be found to be complete…….” It was also held in this case by the Apex Court that a conviction can safely be based on circumstantial evidence provided it satisfies the following tests :
1. All the circumstances forming a chain of events must be fully established and no link in the chain should be found missing . It should be like a jigsaw puzzle whose pieces are correctly put in place .
2. The circumstantial evidence must be consistent with the hypothesis of the guilt only of the accused and of none others .
3. It must be of conclusive nature .
4. It should be inconsistent with the innocence of the accused .
5. It should exclude every other hypothesis except the guilt of the accused .
6. The corpus delicti ( dead body of the victim ) need not be proved but the fact of death must be proved in a murder case .
In Wakkar & Anr v State of UP , ( 2011 ) 3 SCC 306 , the Supreme Court observed that , “The Courts have to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes , unconsciously it may happen to be a short step between moral certainty and legal proof…. There is a long mental distance between ‘may be true’ and ‘must be true’ and the same divides conjectures from sure conclusions .” In Kanhaiya Lal v State of Rajasthan [ 2014 (137) AIC 266 ( S.C.) ] , it was held that inference of guilt justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person . Such circumstances have to be proved beyond reasonable doubt and shown to be closely connected with the principal fact sought to be inferred . Circumstance of last seen together by itself not enough to lead to inference of guilt of accused . Connectivity between the accused and the crime required to be established .
In State of UP v Ashok Kumar Srivastava 1992 Cri LJ 1104 , it was pointed out by Apex Court that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences , the one in favour of the accused must be accepted . It was also pointed out that the circumstances relied upon must be found to have fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt . In Ram Das v State of Maharashtra , AIR 1977 SC 1164 , it has been held by Supreme Court that where circumstantial evidence is susceptible of two possible inferences the court should accept that inference which favours the accused rather than an inference which goes in favour of the prosecution . It has been held by Supreme Court that where circumstantial evidence is susceptible of two possible inferences the court should accept that inference which favours the accused rather than an inference which goes in favour of the prosecution . In Palvinder Kaur v State of Punjab , AIR 1952 SC 354 , the Supreme Court has pointed out that in cases depending on circumstantial evidence Courts should safeguard themselves against the danger of basing their conclusion on suspicions , no matter howsoever strong .
In Chandrakant Ganpat Sovitkar v State of Maharashtra , ( 1975 ) 3 SCC 16 , the Apex Court observed that , “It is well settled that no one can be convicted on the basis of mere suspicion , though strong it may be . It also cannot be disputed that when we take into account conduct of an accused , his conduct must be looked at in its entirety .” In SN Kulkarni v State of Maharashtra , AIR 1981 SC 34 , 38 , it was held by Supreme Court that where a case is based on circumstantial evidence alone all facts must indicate the innocence of the accused . There should be no fact which establishes his innocence . In Lakhan Pal v State of MP , AIR 1979 SC 1620 , the Supreme Court held that from the fact that accused and his brother ( the deceased ) , were seen together in the field before the event cannot be irresistible conclusion that accused had committed his murder . The Court set aside the judgment of Madhya Pradesh High Court and acquitted the accused . In State of Himachal Pradesh v Raj Kumar 2014 (2) Crimes 219 (SC) , it was held by Supreme Court that , “In case of circumstantial evidence , accused cannot be convicted unless and until chain of circumstances is not so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused .”
Speaking for myself , I too very strongly feel that in case of circumstantial evidence , if two views are possible , the benefit of doubt must go always to the accused and not the other way around . This is more so in cases where death penalty is the ultimate punishment because as I said earlier once it is executed , there can be no turnaround and an innocent executed can never come back to life again . Therefore Courts must be liberal in not pronouncing death penalty in cases where conviction is solely on basis of circumstantial evidence alone . Our Supreme Court too has taken this liberal view in many cases and it is not possible for me to enumerate all of them here even though I have mentioned a few above ! But I do agree that death penalty may be given in an exceptional case also where circumstantial evidence alone proves beyond a straw of doubt accused’s culpability in the heinous crime as we have seen even our Supreme Court awarding the same where it found it necessary to award the same . But before awarding death penalty or even any other sentence of conviction in case of circumstantial evidence , it is the bounden duty of all the Courts from bottom to top to make ensure that all the parameters as the Apex Court have laid down in various landmark cases are fully satisfied and all the circumstances very strongly implicates the accused and who has no convincing defence to counter them in any manner whatsoever ! Let me now conclude by again citing Supreme Court . It held in MG Agarwal v State of Maharashtra , AIR 1963 SC 200 that , “Although circumstantial evidence is very helpful in establishing facts , yet its importance is exaggerated by saying that witnesses may tell a lie but circumstances cannot . Their use needs some guidance . To form basis of a conviction in criminal cases the circumstantial evidence must be of such a character that it is wholly inconsistent with the innocence of the guilt and is consistent only with his guilt .” It also held in Harendra Narain Singh v State of Bihar , AIR 1991 SC 1842 , 1845 that , “There is this basic rule of criminal jurisprudence that if two views are possible on the evidence adduced in a case of circumstantial evidence , one pointing to the guilt of the accused and the other to his innocence , the court should adopt the view favourable to the accused .” Finally in Ashish Batham v State of MP , AIR 2002 SC 3206 at p. 3212 , the Supreme Court held that , “In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind . In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore , it is right to recall the warning addressed by Baron Alderson to the jury in Reg v Hodge , (1838) 3 Lewin 2271 , where he said : ‘The mind was apt to take a pleasure in adapting circumstances to one another , and even in straining them a little , if need be , to force them to form parts of one connected whole ; and the more ingenious the mind of the individual , the more likely was it , considering such matters , to overreach and mislead itself , to supply some little link that is wanting to take for granted some fact inconsistent with its previous theories and necessary to render them complete’ .”
Sanjeev Sirohi