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CHAPTER – 1 1
1.1 Introduction
Circumstantial evidence is evidence is evidence that relies on an inference an inference to connect it to a
conclusion of fact — — like like a fingerprint at the scene of a crime. By contrast, direct contrast, direct evidence supports the truth of an assertion directly — i.e., i.e., without need for any additional evidence or inference. On its own, circumstantial evidence allows for more than one explanation. Different pieces of circumstantial evidence may be required, so that each corroborates each corroborates the conclusions drawn from the others. Together, they may more strongly support one particular inference inference over another. An explanation involving circumstantial evidence becomes more likely once alternative explanations have been ruled out. Circumstantial evidence allows a a trier of fact to infer that a fact exists 1. In criminal law, the inference is made by the trier of fact in order to support the truth of an assertion (of guilt or absence of guilt). Testimony can be direct evidence or it can be circumstantial. For instance, a witness saying that she saw a defendant a defendant stab a victim a victim is providing direct evidence. By contrast, a witness who says that she saw the defendant enter a house, that she heard screaming, and that she saw the defendant leave with a bloody knife gives circumstantial evidence. It is the necessity for inference, and not the obviousness of a conclusion, that determines whether evidence is circumstantial. Forensic evidence supplied by an expert an expert witness is usually treated as circumstantial evidence. For instance, a forensic scientist may provide results of ballistic ballistic tests proving that the defendant’s firearm fired the bullets that killed the victim, but not necessarily that the defendant fired the shots. Circumstantial evidence is especially important in civil and criminal cases where direct evidence is lacking.
1
Transnational principle used in international commercial arbitration: Trans-Lex.org
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1.2 Research Objectives
1) To study about circumstantial evidence in detail and to seek its historical background. 2) To observe the relevance of circumstantial evidence i n India.
1.3 Literature Review
Article – 1) Robert W. Fogel, Circumstantial Evidence in Scientific and Traditional History This article aims to represent the methodological issues arising from the employment of circumstantial evidence in historical research. It argues that the two types of evidence often tightly interwoven and integral to each other. It shows a historical approach regarding circumstantial evidence and its relation with direct evidence. Books – 1) Abhinandan Malik, Vepa P. Sarathi’s Law of Evidence, 7 th edition, EBC This book clarifies and explains the complicated rules governing the law of evidence in an easily comprehensible style and is up to date with case laws and amendments have been discussed exhaustively. 2) Ratanlal and Dhirajlal, The Law of Evidence, 21 st edition reprint 2010, Lexisnexis/Butterworth This book, in its scholastic wealth, had provided with apt definitions with their meanings and explained in precise detail. It also helps with various illustrations and relevant case laws.
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3) Ian Dennis, The Law of Evidence, Fifth edition, Sweet and Maxwell This textbook provides thorough analysis of the law of evidence, while placing the subject within its theoretical context. The information is presented in a logical structure following the explanation of basic concepts through to the exclusionary rules of the law of evidence.
1.4 Research Methodology
Given a study of this kind, this research project has been written using the doctrinal or principled method of research, which involves the collection of data from secondary sources, like articles found in journals and websites .
1.5 Source of Data
Accumulation of the information on the topic includes various secondary sources such as books, e-articles, etc. The matter from these sources has been complied and analysed to understand the topic in a better way.
1.6 Research Questions
1) What is a circumstantial evidence and how it has been used since time? 2) Is there any recognition of circumstantial evidence in India?
1.7 Scope and Limitation
The project is an attempt to study circumstantial evidence and its significance in India with cases and appropriate provisions.
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CHAPTER -2
2.1 Circumstantial Evidence – A Contextual Outline
“ Evidence that tends to prove a fact by proving other events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact at issue.”2
Circumstantial evidence is any evidence that requires some reasoning or inference in order to prove a fact. This type of evidence is sometimes referred to as “indirect evidence,” and it may have more than one explanation or lead to more than one conclusion. In many situations, more than one piece of circumstantial evidence may be used to draw the judge or jury to a specific conclusion.3
Circumstantial evidence is best explained by saying what it is not - it is not direct evidence from a witness who saw or heard something. Circumstantial evidence is a fact that can be used to infer another fact. Indirect evidence that implies something occurred but doesn't directly prove it; proof of one or more facts from which one can find another fact; proof of a chain of facts and circumstances indicating that the person is eit her guilty or not guilty. E.g., If a man accused of embezzling money from his company had made several bigticket purchases in cash around the time of the alleged embezzlement, that would be circumstantial evidence that he had stolen the money. The law makes no distinction between the weight given to either direct or circumstantial evidence. E.g., X is suing his wife, Y, for a divorce, claiming she is having an affair with Z. Z's fingerprints are found on a book in X and Y's bedroom. A judge or jury may infer that Z was in the bedroom. The fingerprints are circumstantial evidence of 2 3
https://www.merriam-webster.com/dictionary/circumstantial%20evidence https://legaldictionary.net/circumstantial-evidence/
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Z's presence in the bedroom. Circumstantial evidence is usually not as good as direct evidence (an eyewitness saw Z in the bedroom) because it is easy to make the wrong inference.
Y may have loaned Z the book and then carried it back to the bedroom herself after getting it back. Circumstantial evidence is generally admissible in court unless the connection between the fact and the inference is too weak to be of help in deciding the case. Many convictions for various crimes have rested lar gely on circumstantial evidence. Circumstances are the particulars which accompany the facts. The facts proved are either possible or impossible, ordinary and probable, or extraordinary and improbable, recent or ancient; they may have happened near us or afar off; they are public or private, permanent or transitory, clear and simple or complicated; they are always accompanied by circumstances which more or less influence the mind in forming a judgment. And in some instances these circumstances assume the character of irresistible evidence; where, for example, a woman was found dead in a room with every mark of having met with a violent death, the presence of another person at the scene of action was made manifest by the bloody mark of a left hand visible on her left arm. These points ought to be carefully examined in order to form a correct opinion. The first question ought to be; is the fact possible? If so, are there any circumstances which render it impossible? If the facts are impossible, the witness ought not to be credited. If, for example, a man should swear that he saw the deceased shoot himself with his own pistol and upon an examination of the ball which killed him it should be found too large to enter into the pistol, the witness ought not to be credited. Or if one should swear that another had been guilty of an impossible crime. The two areas in which circumstantial evidence is of most importance are civil and criminal cases where direct evidence is lacking.
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2.1.1 Civil law
Circumstantial evidence is used in civil courts to establish or refute liability. It is usually the most common form of evidence, for example in product liability cases and road traffic accidents. Forensic analysis of skid marks can frequently allow a reconstruction of the accident. By measuring the length of such marks and using dynamic analysis of the car and road conditions at the time of the accident, it may be found that a driver underestimated his or her speed. Forensic science and forensic engineering are common as much in civil cases as in criminal.
2.1.2 Criminal law
Circumstantial evidence is used in criminal courts to establish guilt or innocence through reasoning. With obvious exceptions (immature, incompetent, or mentally ill individuals), most criminals try to avoid generating direct evidence. Hence the prosecution usually must resort to circumstantial evidence to prove the existence of mens rea, or intent. The same goes for the plaintiff's establishing the negligence of tortfeasors in tort law to recover damages from them. One example of circumstantial evidence is the behaviour of a person around the time of an alleged offense. If someone was charged with theft of money and was then seen in a shopping spree purchasing expensive items, the shopping spree might be circumstantial evidence of the individual's guilt.
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2.2 Historical Background of Circumstantial Evidence
Circumstantial evidence is used in criminal courts to decide the fate of accused by establishing guilt or innocence through reasoning. According to Bentham witnesses are the "eyes and ears of justice". But testimony of witnesses is not always credible; therefore, facts are provable not only by witnesses but also by circumstances. 4 In the words of Stephen Leacock, “My evidence for this assertion is all indirect, it’s what we call circumstantial evidence the same the people are hang for …” Giving the importance of circumstantial evidence in criminal cases and discussing the present role of circumstantial evidence, in nailing the two most leading cases, of Manu Sharma and Santosh Kumar, the same evidence that the trial court had dismissed as being insufficient or inadequate for c onviction. Circumstantial evidence is not considered to be proof that something happened but it is often useful as a guide for further investigation. An example from genealogy would be that if census records showed several people with the same surname lived at the same address, likely relationships could be inferred from age and gender. Circumstantial evidence is used in criminal courts to establish guilt or innocence through reasoning. They also play an important role in civil courts to establish or deny liability. The distinction between direct evidence and circumstantial evidence had been a question in the history and has turned on the accuracy on several details. Time and again the interpretation of major historical events has been corrected by apparently trivial details. Since the reliability of simple facts, of mere background information is often the highest form of information required for the resolution. There are numerous instances, in all fields of history, when scholars were forced to settle for circumstantial procedures in order to establish details that could have been established by the use of direct evidence, if available. 4
Sudershani Ray, Circumstantial Evidence, (Last updated, Nov 2012) http://www.legalserviceindia.com/article/l136-Circumstantial-Evidence.html
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Tudor political and administrative history provides some of the finest examples for the use of circumstantial evidence and various scholars attempted to incur circumstantial evidence in their theories.5
2.3 Analysis of the term
‘Circumstantial Evidence’
Circumstantial evidence is unrelated facts that, when considered together, can be used to infer a conclusion about something unknown. Information and testimony presented by a party in a civil or criminal action that permit conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove. An example of circumstantial evidence is the behaviour of a person around the time of an alleged offense. If someone were charged with theft of money, and were then seen in a shopping spree purchasing expensive items, the shopping spree might be regarded as circumstantial evidence of the individual's guilt. Similarly if a witness arrives at a crime scene seconds after hearing a gunshot to find someone standing over a corpse and holding a smoking pistol, the evidence is circumstantial; since the person may merely be a bystander who picked up the weapon after the killer dropped it. The popular notion that one cannot be convicted on circumstantial evidence is false. Most criminal convictions are based, at least in part, on circumstantial
evidence
that
sufficiently
links
criminal
and
crime.
In fact, the U.S. Supreme Court has stated in H olland v. United States6 that "circumstantial evidence is intrinsically no different from testimonial [direct] evidence." Thus, the distinction between direct and circumstantial evidence has little practical effect in the presentation or admissibility of evidence in trials. Similarly in India the two leading case of Priyadarshani Matoo and Jessica Lal were heavily based on circumstantial evidence.
5 6
Robert W. Fogel, Circumstantial Evidence in “Scientific” a nd Traditional History, Pg 71-74 348 U.S. 121 (1954)
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Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence.7 For proof by circumstantial evidence four things are essential:-
That the circumstances from which the conclusion is drawn be fully established.
That all the facts should be consistent with the hypothesis.
That the circumstances should be of a conclusive nature and tendency.
That the circumstances, should, to moral certainty actually exclude every hypothesis but the one proposed to be proved. According to the Supreme Court it is an effect to say that “what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond ‘shadow of doubt’. In the first place, ‘shadow of doubt’, even in cases which depend on direct evidence is shadow of ‘reasonable’ doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonabl e doubt”. In case where two of the accused persons had intentionally caused death of the deceased, there is no reason to discard evidence of witnesses. In a prosecution for bribery the fact that money had been recovered from the bush shirt of the appellant, was, by itself held to be not sufficient, for convicting him, when the substantive evidence led to prove the offence was found to be not r eliable. The rule that facts are provable by circumstances as well as by direct testimony, has a considerable effect in preventing guilty or dishonest parties from tampering, or making way with witnesses and other instruments of evidence, which they would be more likely to do, if they knew that the only evidence which the law would receive against them was contained in a few easily-ascertained depositories.
7
Kenchegowda v. P. Chaunaiya, 1953 Mys 22
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“The sentence of the law to the moral sentiment of the public in relation to any offence is what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment. The infliction of punishment by law gives definite expression and a solemn ratification and justification to the hatred which is excited by the commission of the offence, and which constitutes the moral or popular is distinguished from the conscientious sanction of that part of morality which is also sanctioned by the criminal law. The criminal law thus proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. This close alliance between criminal law and moral sentiment is in all ways healthy and advantageous to the community”….. Stephen. 8 It is well-settled principle that the prosecution evidence has to be weighed and not to be counted. It is just because pedestrian or resident of the vicinity has not been cited as witness will be no ground throws away the otherwise reliable testimony of the eye-witnesses which is natural and inspires confidence. It is not necessary that all eye-witnesses should specifically refer to the distinct acts of each member of an unlawful assembly. 9
8
Ian Dennis, The Law of Evidence, (5 th ed., 2015) 9 Ibid.
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CHAPTER – 3
3.1 Evidence as per Indian Law
Section 3 of Indian Evidence Act, 1872 defines evidence which is more definite meaning, wiz, the first one. Evidence thus signifies only the instruments by means of which relevant facts are brought before the Court .Evidence is generally divided into three categories facts are brought before the Court. Evidence is generally divided into three categories: 1) Oral or personal 2) Documentary, and 3) Material or real The definition of “evidence “must be read together with that of “proved”. The combine results of these two definition is that evidence under the Indian Evidence Act which is not only the medium of proof but there are in addition to this, number of other” matter” which the Courts has to take into consideration, when forming its conclusion. Thus the definition of “evidence” in the Indian evidence Act is incomplete and narrow. In State Of Maharashtra v. Dr . Praful B. D esai 10, the Supreme Court has held that under section 3 of the Indian Evidence Act, besides oral and documentary evidence, electronic record can also be admitted as evidence. The Court further stated that evidence ruled in criminal matters could be by way of electronic records, which would also include videoconferencing. Hence, “what is no evidence”: 1) A confession or the statement of one accessed under section 342 Code of Criminal Procedure, 1973. 10
(2003) 4 SCC 601
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2) Demeanour of witness (section 361 CrPC, O18, R12, CPC) 3) Local investigation or inspection (O.26,R,9);(O18,R18,CPC;sections 293 , 539B, CrPC) 4) Fact judicially noticeable without proof (Section 56, 57 Indian Evidence Act, 1872) 5) Material objects (Section 60)11
Further coming to the subject, English text writers has divided evidence into direct evidence and indirect and circumstantial evidence.12
In this sense direct evidence is the 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 is also known as indirect evidence. Circumstantial evidence is usually a theory, supported by a significant quantity of corroborating evidence. The distinction between direct and circumstantial evidence is important because, with the obvious exceptions (the immature, incompetent), nearly all criminals are careful to not generate direct evidence, and try to avoid demonstrating criminal intent. Therefore, to prove the mens rea levels of "purposely" or "knowingly," the prosecution must usually resort to circumstantial evidence. The same goes for tortfeasors in tort law, if one needs to prove a high level of mens rea to obtain punitive damages.
11
Ian Dennis, Law of Evidence (5 th ed, 2015) 12 Ibid
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3.2 Circumstantial Evidence: Soul Basis for Conviction Ordinarily circumstantial evidence cannot be regarded as direct evidence, and with this regard, there have been a popular misconception is that circumstantial evidence is less valid or less important than direct evidence. This is only partly true: direct evidence is generally considered more powerful, but successful criminal prosecutions often rely largely on circumstantial evidence, and civil charges are frequently based on circumstantial or indirect evidence. In practice, circumstantial evidence often has an advantage over direct evidence in that it is more difficult to suppress or fabricate. Thus the judiciary in following landmark judgment has ruled the important role played by circumstantial evidence which can later become the sole bases of conviction. In Ramawati D evi vs. State of Bihar 13 wherein it has been held as follows:“What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case........” As pointed out by Fazal Ali, J, in V.C. Shukla vs. State14 in most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.
13 14
AIR 1983 SC 164 1980 AIR 962
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Similarly in the famous case of Bodh R aj v. State of J ammu & Kashmir 15, Court held that circumstantial evidence can be a sole basis for conviction provided the conditions as stated below is fully satisfied. Conditions are: 1) The circumstances from which guilt is established must be fully proved; 2) That all the facts must be consistent with the hypothesis of the guilt of the accused; 3) That the circumstances must be of a conclusive nature and tendency ; 4) That the circumstances should, to a moral certainty , actually exclude every hypothesis expect the one proposed to be proved. 16 Supreme Court of India in Manivel and Ors. v. State of Tamil Nadu 17 held that while dealing with circumstantial evidence, it had been held that onus was on the proseturion to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, 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, 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 a ccused.
15
AIR 2002 SC 3164 Abhinandan Malik, Vepa P. Sarathi’s Law of Evidence, 7 th edition 17 AIR 1956 SC 316 16
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The principle for basing a conviction on the edifice of circumstantial evidence has also been indicated in a number of decisions of this Court and the law is well-settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. It has been indicated by this Court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions.
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CONCLUSION The whole discussion essentially brings us back to the fundamental question of whether circumstantial evidence is a sole base of conviction or not. Undeniable the conclusion would be affirmative in true spirit .Undoubtedly; circumstantial evidence plays a pivotal role in criminal case. heavily based on circumstantial evidence. Circumstantial evidence which helped prosecution nail in various landmark cases mentioned above was heavily based on circumstantial evidence. A popular misconception is that circumstantial evidence is less valid or less important than direct evidence. This is only partly true: direct evidence is generally considered more powerful, but successful criminal prosecutions often rely largely on circumstantial evidence, and civil charges are frequently based on circumstantial or indirect evidence. In practice, circumstantial evidence often has an advantage over direct evidence in that it is more difficult to suppress or fabricate. Where the case is not based entirely or substantially on circumstantial evidence, a modified direction in respect of circumstantial evidence may be appropriate when summing-up in respect of an element of the offence which is based entirely or substantially on circumstantial evidence.
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BIBLIOGRAPHY Primary Source:
Code of Criminal Procedure, 1973 Code of Civil Procedure, 1908 The Indian Evidence Act, 1872 Secondary Source: Books:
1) Abhinandan Malik, Vepa P. Sarathi’s Law of Evidence, 7 th edition, EBC 2) Ratanlal and Dhirajlal, The Law of Evidence, 21 st edition reprint 2010, Lexisnexis/Butterworth 3) Ian Dennis, The Law of Evidence, Fifth edition, Sweet and Maxwell Articles:
Circumstantial
Evidence,
Wikipedia,
(last
updated,
May
21 st,
2017),
https://en.wikipedia.org/wiki/Circumstantial_evidence#Criminal_law Sudershani Ray, Circumstantial Evidence, Legalservicesindia, (last updated, Nov. 25 th 2012) http://www.legalserviceindia.com/article/l136-Circumstantial-Evidence.html Circumstantial Evidence: The Law, legalblog, (last updated, April 25, 2011) http://www.legalblog.in/2011/04/circumstantial-evidence-law.html Sumit Kumar Suman, Concept and Historical Background of Evidence, Academike, (last updated,
Apr.
4,
2015)
https://www.lawctopus.com/academike/concept-historical-
background-evidence/#_edn13 Robert W. Fogel, Circumstantial Evidence in “Scientific” and Traditional History.
