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CHAPTER 1

1.1 Introduction

Circumstantial evidence is evidence that relies on an inference to connect it to a

conclusion of factlike a fingerprint at the scene of a crime. By contrast, direct
evidence supports the truth of an assertion directlyi.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 the
conclusions drawn from the others. Together, they may more strongly support one
particular inference over another. An explanation involving circumstantial evidence
becomes more likely once alternative explanations have been ruled out.

Circumstantial evidence allows a trier of fact to infer that a fact exists1. 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 stab 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 witness is usually treated as circumstantial

evidence. For instance, a forensic scientist may provide results of ballistic tests
proving that the defendants 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 in 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. Sarathis Law of Evidence, 7th 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, 21st 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 either guilty or not guilty.

E.g., If a man accused of embezzling money from his company had made several big-
ticket 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
https://www.merriam-webster.com/dictionary/circumstantial%20evidence
3
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 largely 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, its
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 conviction.

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
 Page |8

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 Holland 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
Robert W. Fogel, Circumstantial Evidence in Scientific and Traditional History, Pg 71-74
6
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 reasonable 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 reliable.

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, (5th 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. Desai10, 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
 P a g e | 12

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 (5th 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 Devi vs. State of Bihar13 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
AIR 1983 SC 164
14
1980 AIR 962
 P a g e | 14

Similarly in the famous case of Bodh Raj v. State of Jammu &Kashmir15, 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 Nadu17 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 accused.

15
AIR 2002 SC 3164
16
Abhinandan Malik, Vepa P. Sarathis Law of Evidence, 7 th edition
17
AIR 1956 SC 316
 P a g e | 15

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.
 P a g e | 16

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.
 P a g e | 17

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. Sarathis Law of Evidence, 7th edition, EBC

2) Ratanlal and Dhirajlal, The Law of Evidence, 21st edition reprint 2010,
Lexisnexis/Butterworth
3) Ian Dennis, The Law of Evidence, Fifth edition, Sweet and Maxwell

Articles:

Circumstantial Evidence, Wikipedia, (last updated, May 21st, 2017),

https://en.wikipedia.org/wiki/Circumstantial_evidence#Criminal_law

Sudershani Ray, Circumstantial Evidence, Legalservicesindia, (last updated, Nov. 25th

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.