Appreciation of Circumstantial Evidence

Appreciation of Circumstantial Evidence

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Appreciation of Circumstantial Evidence
Appreciation of Circumstantial Evidence

Picking up one of the most important and critical issues of Criminal law, this Article traces the practical nuances of Appreciation of Circumstantial Evidence. Firstly, this Article stipulates the concept of the Circumstantial Evidence, Secondly, it discusses the very idea of Appreciation of the same.  Thirdly, this Article presents a brief overview of its facets and raises the practical issues involved in the appreciation of Circumstantial evidence.

“It is like this, take a word, split it up into letters, the letters, may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case”

(Justice K Subbarao)

K M Nanavati v. State of Maharashtra[1]

INTRODUCTION

Circumstantial Evidence means the evidence which is not drawn from direct observation of a fact in issue but it is inferred from the relevant facts. In other words, it can be said that when there is no direct evidence in respect of principle fact but certain circumstances are there which though not a fact in issue, but relevant to the fact in issue i.e., the principle fact and from the establishment of all such circumstantial evidence a safe inference of principle fact can be inferred or presumed., that is why it is termed as an ‘Inferential Evidence’. Circumstantial evidence is indirect information or secondary facts that allow a reasonable inference of the principal fact, without actually proving the Principal Fact.

For example, if it’s a case of murder and there is no direct evidence to speak the killing of that person but there are certain circumstances like motive of the accused to kill that person, evidence of seeing him last in the company of the accused within a close proximity of time and place, the recovery of weapon, blood smeared/ stained belongings of accused/deceased, Identification of Person/Property, the extra-judicial confession, the dying declaration, the autopsy report, Scientific Examination (Report of Forensic Science and Chemical Examiner), Ballistic Report, Expert Opinion, Call data Record, BTS Location and other connecting evidence etc., if such type of circumstances are fully established and from which it could be presumed that within all human probability, the murder was committed by the projected accused and none else.

In ‘A Treatise on Judicial Evidence’, Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the Direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:

a) The Factum probandum,or say, the principalfact (the fact the existence of which is supposed or proposed to be proved; &

b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).

It is a rule of law and prudence, as explained by Hon’ble Apex Court[2] in the aforementioned principles, that in a case solely based upon Circumstantial Evidence, every circumstance individually or in isolation must be proved beyond every shadow of reasonable doubt and if these are taken cumulatively, the only inference should be the guilt of the accused and non-else. The circumstantial evidence should be like spider’s web leaving no exit for the accused to slip away.

 

APPRECIATION OF CIRCUMSTANTIAL EVIDENCE

Appreciation of evidence is a matter of experience and knowledge of human affairs. It is a delicate task to be carried out by the adjudicating officer for weighing the evidence and drawing inferences. Each case presents its own peculiarities. Common sense and dexterity are also part of the tools. Basically, appreciation of evidence is subject to the knowledge of human dealings.[3] It is the most cognitively sturdy task carried out by the judges to draw inferences and consider evidence. Each case is like an everyday sunshine, carrying with it different rays every time it reaches the planet. It seems altogether a common sense which may prevail over law. Generally, it depends upon the general knowledge of a judge, his skills, intelligence, knowledge in various fields like Science, art, sociology, psychology, philosophy, anatomy, physiology, awareness regarding geographical condition prevailing at the place where the incident took place and its effect thereof, perception towards ordinary human conduct, thought process and relatively so more. It is the above-mentioned qualities which strengthens the view of an adjudicating officer to reach on a definite/correct conclusion while appreciating circumstantial evidence.

Although there can be no straight jacket formula for appreciation of circumstantial evidence but, to convict a person on the basis of circumstantial evidence, as laid down by Hon’ble Apex Court through a plethora of pronouncements[4], it must follow certain tests which are as follows:

  1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;
  2. those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;
  3. the circumstances, if taken cumulatively, should form 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; &
  4. the circumstantial evidence, in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence- in other words, the circumstances should exclude every possible hypothesis except the one to be proved.

FACETS OF CIRCUMSTANTIAL EVIDENCE

  1. DYING DECLARATION[5]

The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement.[6]

Dying declaration is an exception to the general rule of excluding the hearsay evidence. Its admissibility is explained in Section 32 (1) of Indian Evidence Act, 1872.[7] Since the person making the statement is not taking oath in the court and his deposition is not tested by Cross-examination therefore due care and caution must be adopted while appreciating the evidence of dying declaration.

The declaration should be of such a nature as to inspire the full confidence of the court in its truthfulness and correctness. The court, however, has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination.[8]

Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base the conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.[9]

The Court has laid down in several judgments the principles governing dying declaration, which are:-

  1. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.[10]
  2. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.[11]
  3. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.[12]
  4. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.[13]
  5. Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.[14]
  6. A dying declaration which suffers from infirmity cannot form the basis of conviction.[15]
  7. Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.[16]
  8. Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted.[17]

 

  1. EXTRA JUDICIAL CONFESSION[18]

A free and voluntary confession is deserving of highest credit because it is presumed to flow from the highest sense of guilt. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. But, at the same time, no portion of evidence has invited so much careful scrutiny as the law of confessions.[19]

As to the extra-judicial confession, two questions arise: is it voluntary, and, if so, is it true? When the Court is satisfied that extra-judicial confession is both voluntary and true, it can be accepted.

The Principles as to Extra Judicial Confession summed up as follows:

  • The extra-judicial confession is weak evidence by itself. It has to be examined by the court with greater care and caution;
  • It should be made voluntarily and should be truthful; 
  • It should inspire confidence, that to whom it has been made and when it has been made;       
  • An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;
  • For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities;&
  • Such statement essentially has to be proved like any other fact and in accordance with law;

 

  1. THEORY OF ‘LAST SEEN’

Circumstances of “last seen together” do not by themselves and necessarily lead to the inference that it was accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. The time gap between last seen alive and the recovery of a dead body must be so small that the possibility of any person other than the accused being the author of the crime becomes impossible.[20] The doctrine of “last seen together” shifts the burden of proof on the accused requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard would give rise to a very strong presumption against him.[21]

 

The initial burden of proof is on the prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with the deceased, the prosecution is exempted to prove exact happening of the incident as accused himself would have special knowledge of the incident and thus would have the burden of proof as per Section 106, Evidence Act. But last seen together itself is not conclusive proof but along with other circumstances surrounding the incident like relations between accused and deceased, the enmity between them, previous history of hostility, recovery of weapon from accused, etc. non-explanation of the death of deceased, etc., may lead to a presumption of guilt of accused.[22]

 

  1. MOTIVE

Motive plays an important role in the cases hinging upon Circumstantial Evidence. The motive is the reason which induces and actuates a man to do a certain act. It is a sense of injury or a long cherished feeling of resentment which induces a person to commit an offense. Therefore motive is relevant under Section 8 of Indian Evidence Act,1872. However, motive, though an important factor, adequacy or absence of motive may not affect the merits of a case, if there is positive evidence as to the crime which brings home the guilt of the accused. Hon’ble Supreme Court says in a case based on circumstantial evidence, motive assumes pertinent significance as the existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.[23]

The suspicion, however it may grave, cannot take the place of legal proof. There is an inevitable long distance to travel between ‘may be true’ and ‘must be true’ and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. This basic and golden rule only helps to maintain the vital distinction between “conjectures” and “sure conclusions” to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.[24]

 

The motive is a subjective condition of mind and only the doer of the act knows the actual reason for his action. Presence of motive may lend support to the prosecution case, but its absence is not always fatal to it.[25] If the motive is pleaded, is one of the pieces of circumstantial evidence, it must be proved beyond a reasonable doubt like any other fact.

For the relevancy and importance of motive in the criminal trial, there are certain principles which may be deduced. They are as follows[26]:

  • It is not incumbent on the prosecution to prove the motive for the crime. It often happens that only the culprit himself knows what moved him to a certain course of action;
  • But where the crime is alleged to have been committed for a particular motive, it is relevant to consider whether the pattern of the crime fills in with the alleged motive;
  • In serious offences like murder, the court always searches for the motive and the motive always plays an important role;
  • Motive is of great importance in cases based on circumstantial evidence, and where there is absence of such motive, the court should carefully examine the absence of motive as a circumstance in favour of accused;
  • Where the motive is absent, it is always a circumstance in favour of the accused and against the prosecution;
  • Where there is clear, cogent and positive evidence connecting the accused with the crime, the question of motive is of no importance;
  • If motive is established, the adequacy of motive is not in all cases necessary;&
  • Motive, no matter how adequate, cannot sustain a criminal charge in the absence of clear and cogent evidence pointing to the guilt of the accused.

 

  1. RECOVERY

During the course of the investigation, in most of the cases, recoveries are said to be affected by the accused pursuant to the information furnished by him u/s 27 of the Evidence Act. Here, it is to be scrupulously appreciated that when the information was furnished and when the recovery was affected. The recovered article must be within the exclusive knowledge of the accused and if it is already in the knowledge of the other person then it would have no evidentiary value. Further, only the part of such information which distinctly relates to the fact discovered thereby may be proved. Since its an exception of Section 24, 25 & 26 of the Evidence Act, therefore, more caution is required while taking such information as a piece of evidence.[27]

Recoveries may be of various types, like a weapon, ornaments, belongings of the accused and deceased, whether blood stained/smeared or not, other articles. The fact of recoveries must be established beyond reasonable doubt. Any possibility of planted or farce recoveries must be wiped out.

It is the rule of caution and prudence that when the recovery is affected and the memos of recovery are prepared, it should be done in presence of independent witnesses of the locality, preferably. Clause 5 of Section 100 of Cr.P.C. further provides the mandate of law, so as to avoid the credibility and truthfulness of factum of recovery. The very purpose of requiring a Panch to witness the recovery is to see that independent witness vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found it is absolutely necessary for these Panch witnesses to see and observe from where exactly these articles were recovered.[28]

  1. IDENTIFICATION (OF PERSON & PROPERTY)

The identification of person and property is also a relevant fact as per Section 9 of the Indian Evidence Act 1872, which states that, Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant.” The fact of identification is essential to corroborate and to connect the fact of identification with the other relevant so that the court can reach on a just conclusion regarding the principal fact.

Identification process involves identification of a person as well as of property. While deciding the issue, the guiding rules of Rajasthan police Rules 1965, must be followed in the strict sense, especially Rule 7.31 for the identification of person and Rule 7.32 for identification of property.

The test of identification parade which belongs to the investigation stage is substantive evidence which is conducted to assure the investigating agency that the investigation is proceeding in the right direction and it minimize the chances of memory to identifying witnesses fading due to the long lapse of time.[29]

It is pertinent to note that Identification of the accused before the Court during trial is a Substantive piece of evidence. If an accused is identified by the witness during the course of the investigation but fails to do so during the course of the trial or in the court room such evidence is not of worth credence. In a catena of judgments, it has been propounded that if no test Identification Parade was conducted and the accused was first identified in the Court then the said identification would have no evidentiary value. Although, there are some judicial pronouncements which bring exception to this fundamental principle and says that in certain circumstances, reliance can be placed on the Identification Parade which is conducted for the first time in the Court, when the other circumstances inspire confidence of the Court.

Here, one thing should be kept in mind that right from the arrest of the accused and till the identification is conducted, the identity of the accused should not be disclosed otherwise the very purpose of the Identification would be defeated.

Likewise, when the question of Identity of Property is involved the recovered article should be seized at the spot and there should be no possibility of the witness to see the Articles before the Identification of Property is conducted.[30]

 

  1. DEATH BY POISONOUS SUBSTANCE

In the cases, of murder by administration of poison, the court must carefully scan the evidence and determine the four important circumstances which alone can justify a conviction:

  • there is a clear motive for an accused to administer poison to the deceased;
  • that the deceased died of poison said to have been administered;
  • that the accused had the poison in his possession;&
  • that he had an opportunity to administer the poison to the deceased.[31]

 

  1. 8. DEATH BY HANGING OR STRANGULATION

Due care is required to be taken while appreciating the question to ascertain whether it is a case of hanging or strangulation. For the ascertainment of the fact whether the death is caused by hanging or strangulation the adjudicating authority should take assistance of the salient features enumerated in the ‘Modi’s Medical Jurisprudence’[32] some broad features are as under;

  • Hangings cases are more suicidal while strangulations are mostly homicidal;.
  • In hanging, face usually pale and petechiae rare while in strangulation face congested livid and marked with petechiae.;
  • Saliva, dribbling out of the mouth down on the chin and chest in hanging cases while no such dribbling in strangulation matters;
  • External signs of asphyxia, usually not well marked in hanging cases while in strangulation it is well marked;
  • In hanging the bleeding from the nose, mouth and ears are very rare in juxtaposition it may be found in strangulation cases;
  • ligature marks are found oblique, not continues placed high up in the neck between the chin and larynx, the base of the groove or furrow being hard, yellow and parchment-like in hanging cases while in strangulation cases ligature marks are found horizontal or transverse or continuous round the neck, low down in the neck below the thyroid the base of the groove or furrow being soft and reddish;
  • fracture of the larynx and trachea are found very rare in hanging but in strangulation, it is found often; &
  • also some other distinct features are to be taken note of.  

 

  1. INTENTION

Since it’s a mental state of the accused therefore there may be no physical evidence of it, it has to be inferred from the some of the circumstances given below;

  • Number of injuries;
  • nature of injuries;
  • part of the body;
  • kind of weapon;
  • time and place of the incident;
  • previous animosity;
  • whether the accused acted in a cruel or in an unusual manner;
  • the dominating position of the accused or the helplessness of the victim;&
  • or, the other circumstances from which the mens rea can be attributed.

******

Last but not the least, the aforementioned facets of Circumstantial Evidence would suffice, though not dealt with exhaustively but sincere efforts have been made to put it succinctly. Although, there are various aspects/facets of the circumstances and its appreciation but the facets dealt here in the article normally forms the basis in the cases based upon the circumstantial evidence. The Appreciation of Circumstantial evidence varies from one judicial mind to another judicial mind. Every case has its own peculiar facts and circumstances therefore should be appreciated with due diligence, great care and caution. Although, there cannot be any Straight Jacket formula in appreciating the Circumstantial evidence but, I have put my sincere efforts to bring forth the various dimensions/facets of the circumstantial evidence in the present Article which I have observed and experienced from my last 25 years as a practicing Advocate.

This Article has been written by Mr. Farzand Ali, Practising Advocate before Hon’ble Rajasthan High Court, Jodhpur.

Footnotes:

[1] 1962 AIR(SC) 605.

[2] Hon’ble Apex court has used these principles in hundreds of judgments and they are serving as pillars in all the cases based on circumstantial evidence. Many landmark judgments in the history of Indian Judicial System are based upon circumstantial evidence and a few of them are likes of Hanumant Govind Nargundkar (1952); Nishikant Jha (1969); Sharad Birdhi Chand Sharda (1984); Jessica Lal Murder Case (1999); Priyadarshini Mattoo Murder Case (1996); Nalini’s Case (1999); Ashish Batham(2002); Nitish Katara Murder Case (2002) and many more.

[3] Sardul Singh v. State of Haryana (2002)

[4] Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343; Sharad Bridhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116; State of Rajasthan v. Raja Ram, (2003) 8 SCC 180; State of Goa v. Pandurang Mohite, AIR 2009 SC 1066; Baldev Singh v. State of Haryana, AIR 2009 SC 963  Vijay Kumar v. State of Rajasthan, (2014) 3 SCC 412; Dhanraj v. state of Haryana, (2014) 6 SCC 745; Dharam Deo Yadav v. State of UP, (2014) 5 SCC 509 ; Vijay Kumar v. State of Rajasthan, (2014) 3 SCC 412;  Bhim Singh v. State of Uttarakhand, (2015) 4 SCC 281.

[5] Some useful rulings for daily reference of Judicial Officers and Advocates:- P.Mani v. State of T.N (2006) 3 SCC 161; Laxman v. State of Maharashtra (2002 SCC (Cri.) 1491); Samadhan Dhudka Koli v. State of Maharashtra 2008 (8) SC 719; S.Panneerselvam v. State of Tamil Nadu 2008 Cri.L.J 3531

[6] Laxman  v. State of Maharashtra, 2002 6 SCC 710

[7] According to this section, when the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made this was expecting death or not.

[8] Ibid.

[9] Smt. Paniben v. State of Gujarat, AIR 1992 SC 1817

[10] Munnu Raja & Anr. v. The State of Madhya Pradesh (1976) 2 SCR 764)

[11] State of Uttar Pradesh v. Ram Sagar Yadav and Ors., AIR 1985 SC 416; Ramavati Devi v. State of Bihar,   AIR 1983 SC 164

[12] K. Ramachandra Reddy & Anr. v. The Public Prosecutor, AIR 1976 SC 1994

[13] Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC 264)]

[14] Kaka Singh v State of M.P. (AIR 1982 SC 1021)

[15]  Ram Manorath and Ors. v. State of U.P. (1981 (2) SCC 654)

[16] State of Maharashtra v. Krishnamurthi Laxmipati Naidu  (AIR 1981 SC 617)

[17] Mohanlal Gangaram Gehani v. State of Maharashtra (AIR 1982 SC 839)

[18] State of Punjab v. Bhajan Singh, AIR 1975 SC 258; Siva Kumar v. State, 2006 (1) SCC 714;  Narayan Singh & Anr v. State of M.P., AIR 1985 SC 1678; Maghar Singh v. State of Punjab, AIR 1975 SC 1320; Gura Singh v. State of Rajasthan ,(2001 (2) SCC 205); Jaswant Gir v. State of Punjab, 2005 (12) SCC 438); Chattar Singh & Anr. v. State of Haryana, 2008 (8) 178.

[19] Vishnu Dutt Sharma v. State 2006 4 RLW (Raj) 3248.

[20] State of Goa v. Pandurang Mohite, AIR 2009 SC 1066; Ramreddy Rajeshkhanna Reddy v. State of A.P., 2006 (10) SCC 172; State of U.P. v. Satish, 2005 (3) SCC 114; Sardar Khan v. State of Karnataka, (2004) 2 SCC 442; Mohibur Rahman v. State of Assam, 2002(2) JIC 972 (SC).

[21] Rohtas Kumar v. State of Haryana, 2013 (82) ACC 401 (SC) (para 25); Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 2(C)

[22] Ashok v. State of Maharashtra, (2015) 4 SCC 393

[23] Surinder Pal Jain v. Delhi Administration: 1993 AIR 1723

[24] Ashish Batham v. State of M.P., (2002) 7 SCC 317.

[25] State of Rajasthan v. Ishwar Dan (1983 Cr.L.R. (Raj.) 361 at 367)

[26] Nagaraj v. State, (2015) 4 SCC 739 (para 13); Wakkar v. State of U.P, 2011 (2) ALJ 452 (SC); Babu v. State of Kerala, (2010) 9 SCC 189; Ravinder Kumar v. State of Punjab, 2001(2) JIC 981 (SC); State of H.P. v. Jeet Singh, (1999) 4 SCC 370; Nathuni Yadav v. State of Bihar, (1998) 9 SCC 238; Sakha Ram v. State of M.P., 1992 CrLJ 861 (SC)

 

[27] State of Rajasthan v. Mangal SIngh, D.B. Criminal Leave to Appeal No. 94/2017.

[28] Mousam Singha Roy & Ors. V. State of West Bengal (2003)CCR 250(SC)

[29] Kanta Prasad v. Delhi Admn., AIR 1958 SC 350; Sheikh Hasib v. State of Bihar, (1972) 4 SCC 773

[30] Ramlal v. State of Rajasthan (Decided on 22.11.2017 in D.B. Cri. Appeal 452/2016) Also refer ‘Mr. Mridul Jain v. in Re’, Raj.(2015)

[31] Sharad Bridhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116.

[32] Modi’s Textbook of Medical Jurisprudence & Toxicology, Authored by JP Modi and NJ Modi, 10th edition,  published in the year of 1969, Published by- Bombay, N M Tripathi, 1969.

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