This is the Article written by Dr. T. Srinivasa Rao, M.A.LL.M.,PGD IRPM.PhD.(Gold Medal) V Addl. District Judge, Ranga Reddy District.
A Focus on Circumstantial Evidence
Introduction:
Most of the heinous crimes are generally committed within four-walls of a house and many times in secrecy. Independent eye-witnesses of other direct evidence are scarcely available to the prosecution.
Of late we notice the homicidal deaths are being committed against aged persons staying in apartments lonely, and children after kidnapping for ransom, besides honour killings, Dowry Deaths, Murders for gain, Rape & murder, Murder by husband suspecting fidelity of wife, Murder by wife along with her paramour. In all these cases usually we don’t find direct evidence but circumstantial evidence. The usual difference between these two types of evidences is, in a criminal case based on circumstantial evidence the task of an Investigating officer, Public Prosecutor and Judicial officer is a little bit heavy because they have to verify whether the chain of events is complete? If so, whether it points to the guilt of the accused person and to none others. Whereas in cases of direct evidence, there is no such scope to suspect the others but the fact remains that is “Men may lie but the circumstances can’t”. And like cheque bounce cases in certain cases when the prosecution proves certain facts than the burden shifts to the accused u/s.106 I.E.Act to explain the facts which are in his exclusive and special knowledge failing which adverse inference can be drawn.
1. What is circumstantial evidence:
For a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probandum, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. So circumstantial evidence is evidence in a case which can be used to draw inferences about series of events.
2. When a case rests upon circumstantial evidence, the following circumstances have to be proved by the prosecution: In view of the decision reported in Sharad Biridhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 wherein it is held thus: “
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ 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 the act must have been done by the accused.”
3. What is the standard of proof: In view of the decision reported in Gurpreet Singh vs State of Haryana, AIR 2002 SC 3217 wherein it is held: The chain of events must, thus, be complete in such a way so as to point to the guilt of the accused person and to none others–it is not a mere matter of surmise or conjecture but the events ought to be so tell-tale and one cannot be come to the conclusion that the accused is the guilty person. Standard of proof has, thus, to be at a much higher decree lest an innocent person gets the blame therefor. The approach of the Court, thus ought to be extremely cautious and upon proper circumspection as regards the appraisal of the available evidence on record. It is held in Subhash Chand vs State of Rajasthan (2002)1 SCC 702: Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so formed as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused. The Supreme Court has held time and again that between may be true, and must be true there is a long istance
to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned as a convict.” It is settled law that each and every circumstance must be established beyond all reasonable doubt. And however strong the suspicion may be, it can’t take place proof.
4. Then what is beyond reasonable doubt? It is held in Krishnan vs State, AIR 2003 SC 2978: Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt.
5. Then what are the circumstances that are to be proved in a case based on circumstantial evidence: It is held in Bodhraj vs State of Jammu and Kashmir, AIR 2002 SC 3164: With regard to
number of circumstances and value of circumstances there is no straight jacket formula but ultimately “The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, that 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 the act must have been done by the accused.”
The following are the circumstances culled out from various cases: Last seen theory: It is held in Babu s/o Raveendran vs Babu s/o Bahuleyan (2003) 7 SCC 37: “That the accused and the deceased were last seen together. To put it tersely, both of them slept together by retiring to the room that night. Last seen together in legal parlance ordinarily refers to the last seen together in the street, at a public place, or at any place frequented by the public. But here, the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room. There was no evidence of an intruder. In such a situation, the circumstances leading to the death of the deceased were shifted to the accused. It is he who knows in what manner and in what circumstances the deceased had met her end and as to how the body with strangulation marks found its way into the nearby well. All the aforesaid circumstances, taken together cumulatively, lead and unerringly point only to the guilt of the accused.
(ii) It is held in Damodar vs State of Karnataka, AIR 2000 SC 50: The prosecution has satisfactorily established that the appellant was last seen with the deceased on 30.4.1991. The appellant either in his S.313, Cr.P.Code statement or by any other evidence has not established when and where he and the deceased parted company after being last seen.
(iii) When the last seen theory is established beyond all reasonable doubt ? On this aspect it was held in Shyamal Ghosh Vs. State of West Bengal, 2012 (4) Supreme 481 that the gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body is quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased. Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive. The accused persons have failed to render any reasonable/plausible explanation in this regard.
Absconding of Accused: It is held in Amrik Singh, Satnam Singh Vs. State of Rajasthan, [1994] 1 SCC 563: The prosecution placed strong reliance during the trial of Amrik Singh on his
absconding. Indeed absconding by itself may not be of any conclusive evidentiary value but it is a circumstance which cannot be ignored while considering other evidence connecting the
accused with the crime. Where the other evidence is convincing and reliable, absconding assumes some importance.
It is held in Khanala Venkata Krishna Yadav Vs. State of A.P.,[2005] 2 ALD(Cri) 376: No doubt, absconding of accused for a variety of reasons may not by itself is sufficient to arrive at a conclusion that the crime was committed by the accused, but it can be taken as an additional link in the chain of circumstances. In the absence of any explanation, this circumstance can be taken as a link in the chain of circumstantial evidence.
It is held in Joshinder Yadav vs. State of Bihar in Crl.Appeal No.259/2009 decided on 20-01-2014 (SC): All the accused absconded from their house with their belongings and that the house was completely empty, lead to an irresistible conclusion that the accused were responsible for the death of Bindula Devi.
It is held in S.Anwar Basha Vs. State of A.P., [1998] 1 ALT(Cri) 543: “When husband and wife are in the same house, the normal presumption is that the wife and husband slept in the same room or portion of the house unless it is brought out through evidence that one of them slept in a different portion. In this case, the evidence of PW3 and the admission of the accused when he was examined under Section 313 of Cr. PC, goes to show that the accused was undoubtedly present in the house. The accused claimed that in the early hours of 1-2-1993, he was taken to the doctor – PW4 for treatment. Thus, in the absence of any explanation given by the husband, and when the husband and wife alone are in the house and the wife is found dead, presumption under Section 106 of the Evidence Act could be drawn that the husband is responsible for the death of his wife. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the Supreme Court has held that the facts so established should be consistent only with the hypothesis of the guilt of the accused. There must be a chain of evidence complete as not leave any reasonable ground for so 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. When all various links in the chain had been satisfactorily proved by the prosecution and the circumstances point out to the guilt of the accused with reasonable definiteness, absence of explanation by the accused regarding the circumstances leading to the death of the deceased, who is his wife, could be an additional link which completes the chain.
6. What part of the statement is admissible U/sec.27:
(i) It is held in Bodh Raj Vs. State of J & K 2002(6) Supreme 154: The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
(ii) It is held in State of Karnataka v. David Razario, 2002 Cr.L.J.4127:The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered after a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section.
(iii) It is held in Limbaji Vs. State of Maharashtra, [2002] 0 AIR(SC) 491: Let us then turn to the question whether the statement of the appellant to the effect that ‘he had hidden them (the
ornaments)’ and ‘would point out the place’ where they were is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not the part where he stated that he had hidden the ornaments. Alter referring to the well known case of Pulukuri Kotayya vs. King-Emperor (AIR 1947 PC 67), the question was answered as follows:
The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S.27 of the Indian Evidence Act. The words ‘where he had hidden them’ are not on a par with the words ‘with which I stabbed the deceased’ in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement.
7. Motive: Motive is not sine qua non in each and every case:
(i) It is held in Surinder Pal Jain Vs. Delhi Administration,AIR 1993 SC 1723: 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.
(ii) Undoubtedly, in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear, it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the ink in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
8. When accused supplies the missing link:
I. It is held in Gurpreet Singh Vs. State of Haryana, AIR 2002 SC 3217: Non-explanation or giving false explanation:The appellant-accused has not offered any reason nor explanation except a plea of alibi which the High Court ascribed to be as false denial. The chain of events dispels any doubt and there seems to be sufficient evidence on record to connect the appellant with a brutal killing of wife, the motive of which is apparent.
II. Conduct of accused: It is held in Joshinder Yadav vs. State of Bihar (supra):The fact that the accused did not lodge any complaint about missing of Bindula Devi is supplying the missing link.
III. It is held in Lekhraj Hari Singh vs. State of Gujarat, AIR 1998 SC 242: It was clearly established by the prosecution that the accused and the deceased had come together to the house of Jarnail Singh on 22.12.1981 and that they had stayed together in one room in the said house. It further held that it was established beyond reasonable doubt that the dead body which was found from the said room on 27th morning was that of deceased, Ram Singh who had come as a guest along with the accused. The accused had denied all these facts as false. As the accused had falsely denied these facts, the High Court was right in holding that it supplied the missing link in the chain and that the chain of circumstances being complete, it was reasonable and safe to conclude that it was the accused who had committed murder of the deceased.
IV. It is held in Jalasab Shaikh Vs. State of Goa, AIR 2000 SC 571:
(i) The appellant, his wife and the child were residing in the room of PW-2 Ganesh since about 12 days before the date of the incident;
(ii) Only those three persons were residing in that room;
(iii) The appellant used to return home in drunken condition in the evening and create nuisance;
(iv) In the evening at about 7 O’Clock, there was some disturbance in the room of the appellant.
(v) At about 7:00 a.m., next morning, the son of the appellant was found crying outside the room;
(vi) The appellant’s wife was found lying dead with a pick axe stuck over her head;
(5) (vii) The appellant had run away from that place and could be traced by the police after 10 days.
The explanation of the appellant, that he was not residing in one of the rooms in the house of PW-2, Ganesh Karma, and that he did not know how his wife was killed, as he was away in his own village, was rightly found to be false. If he was really away from that place then, on coming to know about the death of his wife, he would have immediately rushed to that village. On the contrary, the Police had to go in search of the appellant and he could be arrested only after 10 days. This false explanation given by the appellant, as rightly held by the Courts below, provides the missing link in the chain of circumstances.
V. It is held in Vasa Chandrasekhar Rao vs. Ponna Satyanarayana, AIR 2000 SC 2138: When these circumstances were put to the accused through his examination under S. 313 of the Cr.P.C., the accused merely denied the same and such denial would be an additional link in the chain of circumstances to bring home the charge against the accused.
VI. It is held in Anthony D’ Souza vs State of Karnataka,AIR 2003 SC 258: By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false answer in his examination under S.313 against the established facts that can be counted as providing a missing link for completing the chain.
VII. It is held in Subhasish Mondal @ Bijoy vs State of West Bengal in Crl.Appeal No.1391 of 2008, Decided on : 21-11-2013:Another facet is required to be addressed to. Though all the
incriminating circumstances which point to the guilt of the accused has been put to him, yet he chose not to give any explanation under S.313 of the Cr.P.C except choosing the mode of denial.
It is well settled in law that when the attention of the accused is drawn to the said circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false
answer, the same can be counted as providing a missing link for building the chain of circumstances… In the case at hand, though a number of circumstances were put to the accused, yet he has made a bald denial and did not offer any explanation whatsoever. Thus, it is also a circumstance that goes against him.
VIII. It is held in Munish Mabar v State of Haryana, AIR 2013 SC 912: It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances.
9. When burden Shifts to the accused U/sec. 106 of Indian Evidence Act:
(i) In our opinion, the prosecution having established that the accused treated the deceased with cruelty and that they subjected her to harassment for dowry, the accused ought to have disclosed
the facts which were in their personal and special knowledge to disprove the prosecution case that they murdered Bindula Devi. Section 106 of the Evidence Act covers such a situation. The
burden which had shifted to the accused was not discharged by them. In this connection, we may usefully refer to the judgment of this Court in Shambhu Nath Mehra v. State of Ajmer where this
Court explained how Section 101 and Section 106 of the Evidence Act operate. Relevant portion of the said judgment reads thus: “Section 106 is an exception to Section 101. Section 101 lays
down the general rule about the burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Illustration (a) says – A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime. This lays down the general rule that in a criminal case, the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience.” It is held in Baram Prasad Agrawal v. State of Bihar the prosecution had established the cruel conduct of the accused i.e., her husband and members of his family and the sufferings undergone by the deceased at their hands. The unbearable conduct of the accused ultimately resulted in her death by drowning in the well in the courtyard of the accused’s house. This court observed that what happened on the fateful night and what led to the deceased’s falling in the well was wholly within the personal and special knowledge of the accused. But they kept mum on this aspect.
(ii) It is held in Joshinder Yadav vs. State of Bihar (supra): the deceased was admitted in the custody of the accused. She disappeared from their house. As to how her dead body was found in the river was within their special and personal knowledge. They could have revealed the facts to disprove the prosecution case that they had killed Bindula Devi. They failed to discharge the burden which had shifted to them under Section 106 of the Evidence Act. The prosecution is not expected to give the exact manner in which the deceased was killed. Adverse inference needs to be drawn against the accused as they failed to explain how the deceased was found dead in the river in one foot deep water.
10. Duty of Court:
(i) It is not that every one of the inks must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. Circumstances of strong suspicion without, however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. In any event, on the availability of two inferences, the one in favour of the accused must be accepted.
(ii) The Supreme Court has consistently held that when the evidence against the accused, particularly when he is charged with grave offence like murder consists of only circumstances, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from the probative force of facts and circumstances.
(iii) Undoubtedly, in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear, it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case.
(iv) It is held in Balwinder Singh vs State of Punjab, AIR (SC)-1996-0-607: In a case based on circumstantial evidence the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof. It is in the context of the above settled principles, that we shall analyze the evidence led by the prosecution.
11. What are sufficient circumstances to form the complete chain of events:
There is no hard and fast rule to lay down any formula as to when chain of events is complete and when not? But these are all examples of cases for our guidance.
I. Following are the examples in which circumstantial evidence was held to be sufficient to warrant theconviction:
(a) There was bitter enmity between the appellants and the deceased;
(b) The deceased died as a result of injuries inflicted on him by sharp cutting weapons like “Bhalas” and “ Pharsas”;
(c) The appellants and others were carrying the dead body;
(d) On hearing a hue and cry, the appellants dropped the dead body and ran away from the place;
(e) the appellants gave no explanation as to how they happened to carry the dead body of the deceased.
(f) that the witnesses saw the appellant with “ Bhalas” and “ Pharsas” and
(g) all the injuries on the person of the deceased could be caused by “ Bhalas” and “Pharsas”.
II. The circumstances, i.e., (i) evidence of last seen; (ii) misrepresentation and intentional false statement of the appellant as to the whereabouts of the deceased; (iii) evidence relating to
injuries on deceased; and (iv) discovery and seizure of incriminating articles; found to be established against the appellant form a complete chain of evidence as not to leave any reasonable ground for a conclusion consistent with the hypothesis of the innocence of the appellant but on the contrary the same are of exclusive nature consistent only with the hypothesis of the guilt of the appellant and conclusively lead to irresistible conclusion that it was the appellant and he alone who had committed murder of the girl after subjecting her to forcible sexual intercourse.
III. The prosecution relied upon the following circumstances against the appellant:
(i) the deceased was living in her-in-laws house all along at the relevant time of the occurrence; (ii) the relation between the deceased and her father-in-law, Girja Sao, was strained because he
wanted to consume the deceased sexually;
(iii) the death of the deceased was homicidal;
(iv) after her murder, her dead body was dropped into a well with the help of a Jhaggar;
(v) some blood-stains were found inside the room of the accused and also one blood-stained shawl was recovered from there; and
(vi) no information with regard to the death of the deceased was reported by any of her-in-laws.
IV. The following circumstances were proved against the accused-appellant:
(1) The accused and the deceased were last seen together on 15.11.1989 as spoken to by the prosecution.
(2) Recovery of one yellow colour full shirt (MO-IV). Ash colour full pant (MO-V) and one shawl (MO-VI) at the instance of the accused under S.27 of the Evidence Act on 18.11.1989 under Ex.13 in the presence of Pws-23, 25 and 30 and one Ishwar Panigrah. Pws-7 and 15 stated that the shirt (MO-IV) and pant (MO-V) were worn by the accused on 15.11.1989. The apparels seized under Ex.13 contained blood-stains.
(3) Recovery of the gold chain by PW-34 from one Sardar Kar Saraf on 30.11.1989 under Ex.9 in the presence of P.Ws -21 and 26.
(4) PWs 4 and 15 stated that the gold chain (MO-1) was being worn by the deceased.
(5) The statements of Pws-19, 20 and 27 made in connection with the transaction, sale of the gold chain at the request of the accused.
(6) The recovery of Kathury (kati) (MO-VII) by the I.O. at the instance of the accused under Ex.15 in the presence of PW-29.
(7) The opinion of the doctor PW-22, who conducted the autopsy on the possibility of the injuries of the deceased by weapon like kati ( MO-VII).
(8) Presence of human blood on cloths seized.
Conclusion:
So circumstantial evidence is no longer a weak piece of evidence but is exceptional cases stronger than direct evidence because the circumstances can’t speak lie. Secondly the accused is also having equal responsibility in certain exceptional cases to explain as to how the deceased found dead. So the cumulative circumstantial evidence provides a very strong case to determine the truth of a matter, and a suspect can be found guilty of a crime purely upon the strength of circumstantial evidence. That’s why university of Michigam Law professor Robert Precht said, “circumstantial evidence can be, and often is more powerful than direct evidence”.
By
Dr. T. Srinivasa Rao, M.A.LL.M.,PGD IRPM.PhD.(Gold Medal)
V Addl. District Judge, Ranga Reddy District