“CIRCUMSTANTIAL EVIDENCE”
By:
MUHAMMAD TAQI KHAN
Advocate Supreme Court of
Circumstantial Evidence
means a combination of fact creating a network from which, there is no escape
for the accused, because a fact's taken as a whole do not admit any influence,
but the guilt of accused. In other words the circumstance as a whole must be
thoroughly inconsistent with the hypothesis or the innocence of accused.
“Distinction between Direct and Circumstantial
Evidence”
The destination between
direct and circumstantial evidence which logically flows from a long catena of
cases decided by the Supreme Court as well as the other High Courts can be
summarized as under:--
1. Direct evidence is that
which goes to the very root of point, such as the evidence of witness who
actually saw the commission of offence, whereas circumstantial evidence is
evidence which without going directly to prove the existence of a fact, give
rise to the logical inference that such fact does not exist.
2. What is meant by direct
evidence and by circumstantial evidence is that as proof one goes directly to
establish the culpability of the accused person in the commission of offence,
the other brings guilt home to him, by placing circumstances from which the
inference is absolutely irristable that the accused
has committed the offence.
3. Circumstantial Evidence
ordinarily means a fact from which some other fact is inferred, whereas, direct
evidence means testimony given by a person as to what he has himself perceived
by his own senses. Circumstantial Evidence means is the testimony of witness to
other fact, the fact other than those in issues which are course relevant facts
from the which the fact in issue may be inferred. As
to admissibility both forms of evidence stand on the same footing, and the
testimony whether the factum probandum'
or the 'facts probatia' is equally as original and
direct.
Chief Justice Abbot observed! "In a great
portion of trials as they occur in practice, no direct proof that the party
accused actually committed the crime is or can be given; the man who is charged
with the theft is rarely seen to break the house or take the goods: in case of
murder, it rarely happens that the eye of any witness sees the fatal blow
struck, or the poisonous ingredient pured into the
cup."
The fundamental principal is
that the inculpatory facts must be absolutely
incompatible with the innocence of accused. The following rules covering
admissibility and use of circumstantial can be enumerated:--
1. The facts alleged as the
basis of any legal inference must be clearly proved and indubitably connected
with the factum probandum.
2. The burden of proof is
always on the party which asserts the existence of any fact which inference
legal accountability.
3. In all cases whether direct
or circumstantial evidence, the best evidence must be adduced which the nature
of 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 guilt of accused, he is entitled as of right to be acquitted.
Broadly speaking the
circumstances evidence based on last seen, extra judicial confession, recovery
of stolen goods, waj taker evidence, recovery of
incriminating material, that is weapon of offence, pointation
of dead body at instance of accused, recovery of articles belonging to
deceased.
There is no cavil to this
proposition of law, that extra judicial confession last seen evidence, waj taker evidence, merely recovery at the instance of
accused always considered to be weakest type of evidence but they are cases in
which conviction of accused upheld by the superior courts on the extra judicial
confession, last seen evidence, recovery of weapon of offence, it depends upon
facts and circumstances of each case.
However in the following
cases the murder charge has been established:--
(i) The
deceased wearing golden ornaments went to the house of the accused to buy pan
which she usually did.
(ii) A half chewed pan was
recovered from the dead body concealed under water.
(iii) The accused sold a
valuable ornament shortly after the murder which the deceased was wearing whom
she went to the house of accused for the last time.
(iv) The accused was murdered within
a few hours after she had left for the house of accused.
(v) The accused kept a cash, Rs.1485 in an
obscure place.
Circumstantial evidence comes into prominence in all
such cases as the same constitutes the means for tracing out the real culprits
and enabling their conviction in such case which would have otherwise gone unpunished.
Such evidence, it may be noted, it may be as convincing as direct evidence, and
the cumulative effect of such evidence may be an overwhelming proof of guilt.
Principles applicable in
appreciating circumstantial evidence and in adopting such evidence as the sole
basis of conviction
The principles to be
followed in weighing and appreciating circumstantial evidence and in adopting
such evidence as the sole basis of conviction are now well-settled by judicial
pronouncements. In this connection reference may be made at the very outset to
the following observations of Lord Coleridge in his summing up to the Jury in
the trial of Dikman:
"Now
circumstantial evidence varies infinitely in its strength in proportion to the
character and variety, the cogency, the independence of one from, another, of
the circumstances. I think one might describe it as a network of facts cast
round the accused man. That network might be a mere gossamer thread as light
and unsubstantial as the very air itself. It may vanish at a touch. It may be
that as strong as it is in part, it leaves great gaps and holes through which
the accused I entitled to pass in safely. It may be so close, so stringent, so coherent in its structure that no efforts on the part of
the accused can break through. It may come to nothing. On the other hand it may
be absolutely convincing. If we find a variety of circumstances all pointing in
the same directions, convincing in proportion to the number and variety of
circumstances, and they are independent of one another, although each separate
piece of evidence standing by itself may admit of innocent interpretation yet
the cumulative effect of such evidence may be an overwhelming proof of
guilt."
Reference may now be made to
the decision of the Supreme Court in Hanumant Govind's case as the principles laid down in this case have
been followed in subsequent decisions:
Per MAHAJAN, J. (para 10,
p.345, AIR) 1952 SC 343.
"... In dealing with
circumstantial evidence the rules specially applicable
to such evidence must be borne in mind. In such cases there is always the
danger that conjecture and suspicion may take the place of legal proof and
therefore it is right to recall the warning addressed by Baron Alderson to the
jury in Reg v. Hodge' where he said:
"The
mind was apt to take a pleasure in adapting circumstances to one another, and
even in starting them a little, if need be, to force them to from parts of one
connected whole; and the more ingenious the mind of the individual, the more
likely was it, considering such matters, to overreach and mislead itself to
supply some little link that is wanting, to take for granted some fact
consistent with its previous theories and necessary to render them
complete."
It is well to remember that
in cases where the evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should in the first place be
fully established, and all the facts so established should be consistent only
with the hypothesis of the guilt of the accused. Again the circumstances should
be of a conclusive nature and tendency and they should be such as to exclude
every hypothesis but the one proposed to be proved. In other words, there must
be a chain of evidence so far complete as not to leave any reasonable ground
for a conclusion consistent with the innocence of the accused and it must be
such as to show that within all human probability the act must have been done
by the accused.
In the following cases,
conviction based on last seen evidence, extra-judicial confession was upheld:--
(i) Ss.302.
364-A & 201--Constitution of
(ii) 2002 P.Cr.LJ Page 551
(iii) 2002 MLD Page 1027
(iv) 2001 YLR Page 1924
(v) 2001 SCMR Page 1914
(vi) 2004 P.Cr.LJ Page 1479
In the following cases the (order of superior
courts) conviction was set aside:-
(i) Extra-judicial
confession 2008 SCMR 841
Judicial confession:
Judicial Confession of the accused had been recorded more than eleven months of
the occurrence, although he was not stated to be absconder. Acquitted by the
High Court--Leave refused. 2008 SCMR 329.
(ii) Confession--Acceptance and
rejection of confession statement as a whole where there was no other ocular or
circumstantial evidence was available.
(iii) 2008 MCD 74
(iv) 2004 SCMR 1808
(v) 1989 SCMR 61
(vi) NLR 2005 Page
782
(vii) 2005 PCr.LJ Page 1044
(viii) 2007 P.Cr.LJ Page 1605
(ix) 2000 YLR Page
803
(x) 2003 YLR Page
1481
"Conclusion"
The generally in trial of cases exclusively triable the Court of sessions the following circumstances
are treated as incriminating circumstances connecting the accused with the
crime or bridging the missing gap, chains or link between the accused and the
crime:--
(i) 111 will between the victim and the accused.
(ii) Concealing the clothes of deceased.
(iii) When victim was last seen with the accused.
(iv) Absconding of the accused.
(v) Recovery of blood stained clothes.
(vi) Presence of blood stained earth.
(vii) Recovery of dead body at the instance of accused.
(viii) Strongly revengeful
motive.
(ix) Recovery of blood stained weapon from the accused.
(x) Extra judicial confession of accused.
When the circumstantial evidence is consistent with
two theories, one favourable and the other unfavourable to the accused, the theory favourable
to the accused must be accepted. Items taken individually and separately may
not exclude possibility of innocence, but taken collectively may establish
guilt of the accused.
Circumstantial evidence like
all other evidence must satisfy the reliability test. Each of the circumstances
on which reliance is to be placed must be fully established.
The chain of evidence
furnished by the circumstances, that is the totality of the
circumstances, must be so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused; the same
should be wholly inconsistent with the innocence and consistent only with the
hypothesis of the guilt of the accused. In deciding the question of sufficiency
of the evidence, the Court has to consider the cumulative effect of all the
proved facts and whether the combined effect of all these facts taken together
establishes the guilt of the accused, "though each separate piece of
evidence standing by itself may admit of innocent interpretation". The
principle that the inculpatory facts must be incapable
of explanation of any hypothesis other than guilt of the accused does not mean
that any extravagant hypothesis would be sufficient to sustain the principle.
The hypothesis must be a reasonable one. See the decision in the case of Goginda Reddy and the case of State of
If the circumstances are
consistent both with the innocence of the accused and his guilt, the accused is
entitled to benefit of doubt.
In appreciating
circumstantial evidence the Court must have due regard to the warning given in Hanumant Govind's case (already
noted above) about guarding itself against straining the facts for making them
a connected whole or supplying some link which is missing or taking for granted
any fact without proof.
In a case in which only
circumstantial evidence is available, the question of motive and opportunity to
commit the crime may be strong enough for committing the crime and also
opportunity for committing the same, the circumstances which have been established
may be considered alongwith the explanations, if any,
given by the accused, for determining if the chain of evidence is so complete
as to show that, within all human probability, the crime must have been
committed by the accused. The absence of proof of motive, however, is not by
itself a sufficient ground for rejecting the circumstantial evidence, if that
evidence convincingly leads to the conclusion of guilt of the accused. This
matter has been further dealt with in the Chapter on "Motive" (Chapter
XIII) and reference has been made therein to cases of conviction circumstantial
evidence alone without proof of motive.