CRIMINAL LAW

CIRCUMSTANTIAL EVIDENCE: CONVICTION PRINCIPLE

The Circumstantial Evidence is hallmark of criminal jurisprudence system in absence of eye witness during the commission of crime. The circumstantial evidence being not direct evidence, the Supreme Court has laid down various guideline from time to time for its application for conviction. The “last-seen theory” and “Motive” forms important ingredient of the circumstantial evidence.

In case of Sharad Birdhi Chand Sarda vs State Of Maharashtra (1985 SCR(1) 88) following was held:

3:3. Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat’s Vs State of M.P. [1953] SCR 1091]

  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 with the hypothesis of guilt and 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.

These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus deliciti.

In case of Ramreddy Rajeshkhanna Reddy & Anr vs State Of Andhra Pradesh, Appeal (Crl.)-997 of 2005 following was held:

 It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603].

 The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration.”

In Case of State Of U.P vs Satish, Appeal (crl.)  256-257 of 2005, with regard to last-seen theory following was held:

The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.

The other cases of Supreme Court based on last-seen theory is tabulated below for ease of appreciation and understanding:

S. No. Case Law Relevant Para
1. Bodh Raj @ Bodha v. State of Jammu and Kashmir, (2002) 8 SCC 45;

The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility ……………

2. Tipparam Prabhakar v. State of Andhra Pradesh, (2009) 13 SCC 534;

8. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility ………………

3. Rishi Pal v. State of Uttarakhand, (2013) 12 SCC 551;

18. Finally in Jaswant Gir v. State of Punjab (2005) 12 SCC 438, this Court held that it is not possible to convict Appellant solely on basis of ‘last seen’ evidence in the absence of any other links in the chain of circumstantial evidence, the Court gave benefit of doubt to accused persons.

4. Krishnan v. State of Tamil Nadu, (2014) 12 SCC 279;

24. In Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438, this Court held that in absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of “last seen together” even if version of the prosecution witness in this regard is believed.

5. Kiriti Pal v. State of West Bengal, (2015) 11 SCC 178;

14. From the evidence of PWs 6, 7 and 10, prosecution has thus established that Anjali was last seen alive in the company of first appellant Kiriti Pal on the evening of 11.11.2008 and that at about 10.00/10.30 p.m., first appellant Kiriti Pal came alone. The theory of “last seen alive” comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead was so small, the possibility of any other person committing the murder becomes impossible. ……………..

6. State of Karnataka v. Chand Basha, (2016) 1 SCC 501;

14. The prosecution story relies upon the ‘last seen together’ theory, which resulted into the death of Ganesh. This Court has time and again laid down the ingredients to be made out by the prosecution to prove the ‘last seen together’ theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established. Yet, the prosecution has failed to prove the evidence which establishes the ‘last seen together’ theory beyond reasonable doubt…………………………

7. Rambraksh v. State of Chhattisgarh, (2016) 12 SCC 251;

12. In the present case as noticed above the Sessions Court as well as the High Court convicted the appellant/ accused No.2 on the basis of last seen evidence, the correctness of which is also doubtful. The High Court had failed to appreciate the aforesaid fact and erred in affirming the judgment of conviction passed by the Sessions Court. We are satisfied that the conviction of the appellant cannot be sustained in law and liable to be set aside.

8. Anjan Kumar Sharma v. State of Assam, 2017 (6) SCALE 556

21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. ……………………….. 

In Trimukh Maroti Kirkan vs State of Maharashtra, Appeal (Crl.)-1341 of 2005 following was held:

 “16. In a case based on circumstantial evidence where no eye- witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)]

In Venkatesan vs State of Tamil Nadu, Criminal Appeal No.- 308 of 2001 following was stated:

” 7.Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed 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 facts 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 the guilt of the accused, he is entitled as of right to be acquitted.

In Sanjay Kumar Jain vs State of Delhi, Criminal Appeal No.-2400 of 2010 following was held:

“38. We find some merits in the statements of the learned senior counsel for the appellant that in a case of circumstantial evidence all circumstances must lead to the conclusion that the accused appellant was the only one who had committed the crime and none else. 

39. On following aspects there is no consistency in the prosecution version:

1) The door leading to the house of the deceased had free access and possibility of any other person entering the house of the deceased cannot be ruled out.

2) The landlord had clear access to the house of the deceased and non-examination of the landlord creates serious doubt in the prosecution version.

3) Injuries found on the body of the accused/appellant remained unexplained. No question was put to the accused to explain the alleged injuries on the person.

4) There is a material contradiction as to the ornaments which the deceased was wearing and were missing from her body.

5) The string and wicket (stump) were not seized by the Investigating Officer on the same day as they were lying near the dead body.

6) The string and the wicket (stump) were not sent to Central Forensic Science Laboratory (CFSL) despite the opinion of the doctor telling the circumstances in favour of the accused for being used in the alleged crime.

7) The string (narrah) allegedly used for strangulating the deceased was 8 ½ inches in length and making it impossible to commit the offence in the manner alleged by the prosecution.

In Madhu vs State of Kerala, Criminal Appeal No. 522 of 2006 following was held:

“5. The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt. During the course of deliberations of the present controversy, we shall endeavour to evaluate the worthiness of circumstantial evidence produced by the prosecution to prove the guilt of the accused. But more importantly, our endeavour would be to evaluate the admissibility of the statements made by the accused to the police, during the course of their detention by the police, resulting in the discovery of the gold ornaments, belonging to Padmini Devi, after having committed her murder. This piece of evidence has been relied upon to connect the accused with the crime.………………. 

24. For the reasons recorded by us herein above, we are of the view, that the evidence produced by the prosecution does not, in any way, establish the guilt of the accused. The prosecution had endeavoured to prove the allegations levelled against the accused on the basis of circumstantial evidence. As noticed above, the mainstay of the prosecution evidence is the recovery of the gold ornaments belonging to the deceased Padmini Devi at the instance of the accused Madhu and Sibi. We have concluded that the statements made by the accused Madhu and Sibi (vide Exhibits P-10 and P-9 respectively) cannot be proved against the accused, or to their detriment. This by itself removes the most vital link in the chain of events sought to be established by the prosecution against the accused. Evidence produced to establish the presence of the accused near the place of occurrence, at or about the time of the commission of the crime has also been found to be irrelevant. This because, the accused were in any case neighbours of the deceased Padmini Devi. We have also found, that the theft of the golden ornaments worn by the deceased Padmini Devi was also doubtful. The explanation tendered by the prosecution of the earrings worn by the deceased Padmini Devi when her body was recovered, is also far from satisfactory. From the statement of Dr.Radhakrishnan PW20, and the surrounding facts, it cannot be positively inferred that the deceased Padmini Devi was first smothered and then drowned as has been alleged by the prosecution. We have also found serious contradictions in the deposition of the prosecution witnesses. The prosecution has failed to establish an unbroken chain of events lending to the determination, that the inference being drawn from the evidence is the only inescapable conclusion. In fact in our view the prosecution has not been able to connect the accused with the alleged crime in any manner whatsoever.

In Munna Kumar Upadhyaya @ Munna Upadhyaya vs State of A.P , Criminal Appeal No. 1316 of 2008 following was held:

  ” 10. There can be no doubt that the present case is one of circumstantial evidence. There is no witness to the commission of crime. Thus, there is a definite requirement of law that a heavy onus upon the prosecution be discharged to prove the complete chain of events and circumstances which will establish the offence and would undoubtedly only point towards the guilt of the accused. To prove this chain of events, prosecution had examined as many as 49 witnesses. This included the persons who were working at the bungalow, neighbours, the worker at the petrol pump from which Accused no.2 purchased petrol, the doctors, forensic experts, fingerprint expert and the only surviving member of the family i.e., daughter Meenal Seth, PW12. This ocular evidence is obviously in addition to the documentary and expert evidence brought by the prosecution on record. A case of circumstantial evidence is primarily dependent upon the prosecution story being established by cogent, reliable and admissible evidence. Each circumstance must be proved like any other fact which will, upon their composite reading, completely demonstrate how and by whom the offence had been committed. This Court has clearly stated the principles and the factors that would govern judicial determination of such cases. Reference can be made to the case of Sanatan Naskar and Anr Vs. State of West Bengal …………….

In Vivek Kalra vs State of Rajasthan, Criminal Appeal No.- 221 of 2007 following was held:

” 6. We have considered the submissions of the learned counsel for the parties and we agree with the learned counsel for the appellant that from the evidence of PW-11 one could not hold that the appellant had committed the murder of the deceased to take revenge on his uncle (PW- 11), who had not given him Rs.80,000/- kept in fixed deposit. We are, however, of the opinion that where prosecution relies on circumstantial evidence only, motive is a relevant fact and can be taken into consideration under Section 8 of the Indian Evidence Act, 1872 but where the chain of other circumstances establish beyond reasonable doubt that it is the accused and accused alone who has committed the offence and this is one such case the Court cannot hold that in the absence of motive of the accused being established by the prosecution, the accused cannot be held guilty of the offence. In Ujjagar Singh v. State of Punjab [(2007) 13 SCC 90], this Court observed:

“It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliché) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.”

Circumstantial evidence must be applied carefully and in case of any doubt on any circumstantial evidence, the benefit of doubt must pass on accused.

Rajni Sinha

Advocate Bombay High Court

Mobile No. 7738080174

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