LAW OF EVIDENCE PROJECT

TOPIC – CIRCUMSTANTIAL EVIDENCE

SUBMITTED BY –
JATIN KUMAR
7TH SEM., REGULAR
B. A. LL.B.(HONS)
 TABLE OF CONTENTS

 INTRODUCTION

 DIRECT & CIRCUMSTANTIAL EVIDENCE

 CIRCUMSTANTIAL EVIDENCE

 THE VALUE OF CIRCUMSTANTIAL EVIDENCE IN A

CRIMINAL TRIAL

 SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE IN A

CRIMINAL CASE

 CONCLUSION

 BIBLIOGRAPHY
INTRODUCTION
Evidence is that which tends to prove the existence or nonexistence of some fact.1 The evidence
of a fact is that which tends to prove it – something which may satisfy an enquirer of the fact’s
existence. Courts of law usually have to find that certain facts exist before pronouncing on the
rights, duties and liabilities of the parties.2 In criminal cases, the critical facts that require proof
are whether a crime actually occurred and if the accused was responsible for having committed
that crime.

As per Section 3 of The Indian Evidence Act, 1872 evidence means and includes both oral and
written evidence. Oral evidence includes all the statements which the court permits or requires to
be made before it by witnesses, in relation to matters of fact under inquiry. Documentary
evidence includes all documents including electronic records produces for the inspection of
court.

The evidence is any matter of fact that a party to the lawsuit offers to prove or disprove on a
particular issue in a particular case. It can be said as the system of rules and norms or an
arrangement of principles and norms that is utilized to figure out which certainties might be
conceded, and to what degree a judge or jury may think about those realities, as verification of a
specific issue in a lawsuit.
There are many types of evidence such as:-

 Eyewitness
 Participants
 Prior Statements by the defendants
 Documents
 Physical Evidence
 Scientific Evidence such as fingerprints, DNA etc.
Apart from these, there are two basic forms of evidence, under which the abovementioned kinds
of evidence are generally covered. They are:-

 Direct Evidence, and

 Circumstantial Evidence( commonly called Indirect Evidence)

1
Oxford Dictionary of Law 7th edition
2
Cross, R. (1974). Cross on Evidence (4th Ed) at p.1
DIRECT & CIRCUMSTANTIAL EVIDENCE
DIRECT EVIDENCE
“Direct Evidence” is evidence that establishes a particular fact without the need to make an
inference in order to connect the evidence to the fact. It supports the truth of an assertion (in
criminal law, an assertion of guilt or of innocence) directly, i.e., without the need for an
intervening inference. It directly proves or disproves the fact.

So Direct Evidence is real, tangible, or clear evidence of a fact, happening, or thing that requires
no thinking or consideration to prove its existence. It does not require any type of reasoning or
inference to arrive at the conclusion.

Drawback of Direct Evidence

Though Direct evidence is considered to be superior to Circumstantial evidence, one of the main
drawbacks of Direct evidence is relying on the evidence completely without any thinking or
reasoning to prove its existence. For example in the case of an eyewitness, he/she may lie or may
not be able to understand if the event occurs quickly or at the time of high stress to the
eyewitness. Also, it can happen that the eyewitness may maliciously testify i.e., intentionally
testifies wrongly(though he may get prosecuted for perjury i.e., lying under an oath, that can
happen only when the judge or jury orders to counter examine the testification of the witness.

CIRCUMSTANTIAL EVIDENCE
Unlike direct evidence, which relies on personal knowledge or observation and yields a definite
conclusion, circumstantial evidence is based largely on inference and uses inductive reasoning.
That is, circumstantial evidence is evidence that indirectly proves a fact or supports a theory.
Indirect or circumstantial evidence implies that the defendant was involved in the crime, and is
typically sufficient to convict a defendant if the evidence and inferences drawn from the
evidence can be used to establish that the defendant is guilty beyond a reasonable doubt.

Does direct evidence have more probative value than circumstantial evidence?
The most common form of direct evidence is “eyewitness testimony”, where the witness
describes exactly the scenario what happened in the situation. For example – assume a person
who is looking out from his door and is seeing a person killing someone else. If he/she testifies
this before the court then, it will be the direct evidence because he saw the murder happening in
front of his eyes and can identify the murderer.

But suppose the person in the morning found a dead body lying on the road and now if he/she
testifies then that testimony would not be direct because he/she does not have any direct proof of
who is the murderer and how did it happen?
Under the Indian Evidence Act, “circumstantial evidence” is included under the expression
“relevant facts” and it is provided that all “relevant facts” require being proved by some
evidence oral or documentary, that is to say, by direct evidence.
Circumstantial evidence, to be relied upon, must not only point to the inference to be drawn by
the court, but it must be of such a nature that it can possibly lead to no other inference.

So the value of Direct Evidence is more than Circumstantial Evidence, as in the aforementioned
example, there is a direct proof of who killed the individual, unlike in the other situation where a
body was seen lying and no one knew who and how did the murder happen. But this is not
always true. There are many cases where solely on the basis of circumstantial evidence
conviction has happened.

Can someone be convicted on just circumstantial evidence?

On account of Chandmal v Province of Rajasthan3, the court has held that in circumstances
where the case is completely in light of the circumstantial proof the three conditions must be
satisfied:
1) The conditions on which we depend for proving must be built up immovably.

2) The conditions must be exact and they should point towards the blame of the individual who
is denounced.

3) When every one of the conditions taken in general they should shape a total chain and there
must be no escape clause in the chain. It must show that the blamed just could have carried out
the wrongdoing and no one else could have done it.

In the instance of Sathya Narayan v State4 it has been held that in specific cases it is conceivable
where no immediate proof or observer is accessible, in such a circumstance the court can grant
conviction exclusively on the premise of circumstantial proof if the accompanying five standards
are connected:

1) “The conditions from which the finish of blame is to be drawn ought to be completely built
up. The conditions must be or ought to and not might be built up.

2) The realities so settled ought to be predictable just with the speculation of the blame of the
denounced, in other words, they ought not to be clarified on some other theory aside from that
the charged is blameworthy.
3) The conditions ought to be of a decisive sort and propensity
4) They ought to avoid each conceivable theory aside from the one to be demonstrated

3
AIR 1976 SC 917.
4
2013 (80) ACC 138 (SC).
5) There must be a chain of confirmation so entire as not to leave any sensible ground for the
finish of the charged and should demonstrate that conflicting with the guiltlessness of the
blamed, what’s more, must demonstrate that in all human likelihood the demonstration probably
is finished by the accused.”

In another case of Khem Karan v State of U.P5, the court stated that:- “If all the circumstances
and the evidence point towards the guilt of the accused and there is no possibility of any other
alternative hypothesis then in such a situation only the accused can be convicted solely on the
basis of circumstantial evidence.”

Aarushi Talwar Case: Whether the Conviction of the parents was based on Circumstantial
Evidence?
In Aarushi Talwar Case the court has passed judgment on the premise of the conditional proof
yet has neglected to welcome the confirmation. To convict on the premise of circumstantial
proof the court must welcome every one of the confirmations of the conditions which point
towards the blame of the charged. Every one of the confirmations needs to point towards the
blame of the charged. In this case, it was not the situation. The reports of the two CBI groups
have the suspect totally unique arrangement of individuals. The principal CBI group speculates
the Servants as the prime suspects as they have conceded their essence in the event amid the
narco examination and the same has been demonstrated with the assistance of melody broadcast
on the news channel however that witness had not been conceded.

In the meantime when the case got exchanged to the new CBI group they suspected the
guardians and drew a total distinctive theory that Rajesh murdered Aarushi and Hemraj seeing
them in a trading off position and the correct part of the couple in the murder cannot be resolved
however it is assumed that Dr.Rajesh executed the two and his better half, Dr Nupur Talwar
helped him decimate the evidence. In this manner, the reports obviously recommend that there
are two conceivable outcomes and in such a circumstance when the conviction depends on
incidental proof the circumstance which supports the blamed must be acknowledged by the court
and the charged must be given the advantage of uncertainty.

Be that as it may, here the court has neglected to take after this and has sentenced the Talwar
couple on the premise of incidental confirmation without building up the same appropriately.
Along these lines, no advantage of uncertainty has been given to the charged, Talwar couple.

One can be convicted of murder or rape solely on the basis of circumstantial evidence. But the
reliability on public officials has to be made, and in turn, the work of public officials gets of
immense responsibility. The onus on public officials is huge and they had to investigate properly,
so that justice is rendered diligently, unlike in the Aarushi Talwar case where the parents were
convicted, which led to improper justice.

5
AIR 1974 SC 1567 (3JJ).
CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence, sometimes called indirect evidence, is so called because the truth is
discovered through inferences of probabilities arising from an association of facts.
Circumstantial evidence has been defined as “that which is applied to the principal fact,
indirectly, or through the medium of other facts, from which the principal fact is inferred6.”

One judge stated that the only difference between direct and circumstantial evidence is that direct
evidence is more immediate and has fewer links in the chain of connection between the premise
and the conclusion. It should be noted that circumstantial evidence has the same value, force, and
weight as direct evidence.

According to the Oxford Dictionary of Law, circumstantial evidence is defined as “evidence

from which the judge or jury may infer the existence of a fact in issue but which does not prove
the existence of the fact directly.7” It has also been further defined as “any fact (sometimes called
an “evidentiary fact”, “factum probans” or “fact relevant to the issue”) from the existence of
which the judge or jury may infer the existence of a fact in issue (sometimes called a “principle
fact” or “factum probandum”).8

A typical instance is afforded by the statement of a witness at a trial that he saw the accused
carrying a blood-stained knife at the door of the house in which the deceased was found mortally
wounded.9 The prosecutor invites the judge first, to assume that the witness is speaking the truth,
and secondly, to infer that the accused inflicted the mortal wound with the knife.

Thus, evidence need not prove that the defendant is absolutely guilty or guilty beyond any
question, but rather that there are no other logical explanations resulting from the case facts that
anyone other than the defendant could have committed the crime. Guilt can be proven using a
process of logical deduction.

6
Ingram, J.L. (2009). Criminal Evidence. (10th ed.) at p. 25
7
7th Edition
8
Cross, R. (1974). Cross on Evidence (4th Ed) at p.8
9
Ibid
THE VALUE OF CIRCUMSTANTIAL EVIDENCE IN A CRIMINAL
TRIAL
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 mens rea levels of "purposely" or "knowingly." One
example of circumstantial evidence is the behavior 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.

Both direct and circumstantial evidence are equally admissible, but it is impossible to make any
absolute comparison of their cogency. If the evidence is circumstantial there is an uncertainty as
to what is the correct inference. The weight of circumstantial evidence therefore, depends largely
upon the number of independent facts which support the same inferences, and where there are
many such facts it will be as cogent as the testimony of one or two witnesses giving direct
evidence.10 It is not necessary for the evidence to provide an answer to all of the questions raised
in a case, nor is it necessary that each fact upon which the prosecution relies, taken individually,
prove that the defendant is guilty. In R v. Exall11, Pollock explained circumstantial evidence as a
rope consisting of several cords. He remarked thus: “It has been said that circumstantial
evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but
that is not so, for then, if any one link breaks, the chain would fall. It is more like the case of a
rope comprised of several cords. One strand of the cord might be insufficient to sustain the
weight, but three stranded together may be quite of sufficient strength. Thus it may be in
circumstantial evidence-there may be a combination of circumstances, no one of which would
raise a reasonable conviction or more than a mere suspicion; but the three taken together may
create a conclusion of guilt with as much certainty as human affairs can require or admit of."

It is important however in criminal trials to look at circumstantial evidence with the greatest of
care. First of all, such evidence can be fabricated. Secondly, it is important to see whether or
not there exists one or more circumstances which are not merely neutral in character but which
are inconsistent with any other conclusion than that the Defendant is guilty. This is particularly
important because of the tendency of the human mind to look for (and often slightly distort) facts
in order to establish a proposition, whereas a single circumstance which is inconsistent with the
Defendant’s guilt is more important than all the others because it destroys the conclusion of guilt
on the part of the Defendant. Professor Nokes in the 2nd edition of his book “An introduction to
Evidence” at page 467 states the defects in circumstantial evidence as follows: “The possible

10
Mclean, I. & Morrish, P. (2000). Harris’s Criminal Law (22nd ed)
11
(1866) 4 F & F 929
defects in circumstantial evidence…may…include not only those that occur in direct evidence
such as falsehood, bias or mistake on the part of witnesses but also the effect of erroneous
inference.” In R v. McGreevy12 Lowry LCJ said: “Therefore we consider that a judge ought to
point out the circumstances which tend to establish innocence and more especially
circumstances which are inconsistent with guilt …” similarly, in R v. Hodge13 Alderson B said
that the jury must be satisfied - “Not only that those circumstances were consistent with his
having committed the act but that they must also be satisfied that the facts were such as to be
inconsistent with any other rational conclusion than that the prisoner was the guilty person.”
Circumstantial evidence is valuable in a criminal trial and is in no way regarded as inferior
evidence, save for the extra caution addressed to it when drawing an inference therefrom. This
position is fortified by the case of The People v Mbinji14, wherein the court in the course of
delivering its judgment stated the following; “There is of course no direct evidence linking the
Accused to the offence as no one saw him set the house on fire. Therefore the Court has to look
elsewhere and that is in the direction of circumstantial evidence. Circumstantial evidence is
defined in The Blacks Law Dictionary as: “Evidence based on inference and not on personal
knowledge or observation.” Alexander M Burill in A Treatise on the Nature, Principles and
Rules of Circumstancial Evidence had this to say:

“Circumstantial evidence is that indirect evidence which is applied to the principal fact
indirectly through the medium of other facts establishing certain circumstances or minor facts
already described as evidentiary from which the principal fact is extracted and gathered by a
process of special inferences………..”

If the only evidence which could be adduced were that directly of facts in issue or what is known
as direct evidence, many claims would fail for lack of adequate proof. At some stage a resort
must always be had to circumstantial evidence from which a Court may infer the existence of a
fact in issue. Therefore circumstantial evidence derives its main force from the fact that it usually
consists of a number of items pointing to the same conclusion.”

12
[1972] NI 125
13
[1838] (2) H Lew CC 227
14
[2013] ZMHC 22
SUFFICIENCY OF CIRCUMSTANTIAL EVIDENCE IN A
CRIMINAL CASE
In the absence of direct evidence on a controverted issue, almost all jurisdictions require the
prosecution to prove that all the circumstances are consistent with guilt and inconsistent with any
reasonable hypothesis of innocence. Circumstantial evidence is therefore capable of being
convicted on if the only reasonable inference it permits is one of the guilt of the accused. The
case is the same even where the entire case against an accused hinges purely on circumstantial
evidence. In The People v. Inonge Anayawa and Lubinda Sinjambi15, it was held inter alia
that “it is competent for a court to convict on the basis of circumstantial evidence”. The leading
authority in Zambia on conviction based on circumstantial evidence can be said to be the case of
David Zulu v. The People16. The facts were that the appellant was convicted of the murder of a
woman in the course of a sexual assault; the injuries found on the body suggested that she had
struggled with her assailant. The evidence established that the appellant and the deceased had
been drinking beer together at a bar and were seen leaving the bar together at about midnight.
Between 0600 and 0700 hours the next day the deceased's partially undressed body was found.
The appellant was traced and when arrested was found to have scratches on the neck and chest.
He explained in evidence that the scratches were caused by flying pieces of iron at his place of
work, an explanation which was not rebutted. The trial court without any evidence to support the
finding said that the appellant had protective clothing at work and therefore that the flying
particles of iron could not penetrate such clothing; the trial court consequently inferred that the
scratches on the appellant were sustained during the struggle with the deceased. It was held, on
appeal, that: “Circumstantial evidence by its very nature it is not direct proof of a matter at issue
but rather is proof of facts not in issue but relevant to the fact in issue and from which an
inference of the fact in issue may be drawn. It is incumbent on a trial judge that he should guard
against drawing wrong inferences from the circumstantial evidence at his disposal before he can
feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the
case out of the realm of conjecture so that it attains such a degree of cogency which can permit
only an inference of guilt.”

It can be noted that before the court can convict an accused solely on circumstantial evidence, (i)
the inference sought to be drawn must be consistent with the proved facts; (ii) the proved facts
must be such that they exclude every other reasonable inference save the one sought to be drawn
against the accused; otherwise there must be a doubt as to the accused’s guilt. In Kaluba Ilunga
and Another v. The People17 it was held inter alia therein that: “it is trite law that odd
coincidences if unexplained may be supporting evidence. An explanation which cannot
reasonably be true is in this connection no explanation at all.” Thus, in line with the case of

15
[2010] ZMHC 8
16
(1977) Z.R. 151 (S.C.)
17
(1981) ZR 102
David Zulu v. The People18, if there is no cogent (clear, logical and convincing) circumstantial
evidence led by the prosecution which takes the case against the accused out of the realm of
conjecture and permit an inference of guilt beyond reasonable doubt against him then such a one
ought to be acquitted. In Chimbini v. The People19 it was held: “Where the evidence against an
accused person is purely circumstantial and his guilt entirely a matter of inference, it is trite that
the inference of guilt may not be drawn unless it is the only inference which can reasonably be
drawn from the facts.” In Sakala v. The People20 the appellant was convicted of murder of a
boy aged four years, Rute with her child aged four years and the appellant had been travelling
together for about two hours. The appellant proposed love to Rute and on her refusal he assaulted
her so severely that she was rendered unconscious for about eight hours. On regaining
consciousness, she found that her suitcase had disappeared and the child was dead. There was no
dispute as to the appellant's identity nor was the assault challenged. The crucial issue was
whether the appellant caused the child's death. On appeal the appellant denied killing the child
and argued that there was no direct evidence connecting him with the offence. It was held that
circumstantial evidence must be so cogent and compelling that on no rational hypothesis other
than murder can the facts in the case be accounted for. The court, in convicting the appellant on
the circumstantial evidence further stated the test for its admittance and conviction arising
therefrom at page 209: “can it be said that there existed such circumstances as rendered the
commission of the crime by the Appellant certain and left no room for a reasonable doubt?”

The forgoing position was affirmed in the case of Mbinga Nyambe v. The People21 wherein it
was held inter alia: “Where a conclusion is based purely on inference, that inference may, be
drawn only if it is the only reasonable inference on the evidence; an examination of the
alternative and a consideration of whether they or any of them may, be said to be reasonably
possible cannot be condemned as speculation.” From the above decided cases it is very clear that
the inference must be drawn from the evidence which constitute facts. The judge should be able
to draw an inference of guilt with no other probable and logical inference of innocence capable
of being drawn in favour of an accused person before he or she can safely convict on
circumstantial evidence. Such certainty cannot be waived or derogated when dealing with a case
involving this type of evidence in a criminal trial. An illustration of the satisfaction of the
inference of guilt can be extracted from the judgment of the case of Isaac Zimba Mtonga v. The
People22, wherein Muyovwe, JS had this to say: “ Taking all these factors into consideration, we
find that we cannot fault the learned trial Judge when he arrived at the conclusion that the
circumstantial evidence was cogent and convicted the appellant as charged. Certainly there was

18
Supra note 13
19
(1973) Z.R. 191
20
(1980) Z.R. 205
21
(2011) 1 Z.R. 246
22
S.C.Z Appeal No.103/2013
no other inference that the learned trial Judge could come to. In the premises, we uphold the
judgment of the Court below and dismiss the appeal.”

It is imperative therefore before an inference of guilt can be made that there is very strong and
compelling circumstantial evidence i.e. there can really only be one logical conclusion drawn
from the circumstantial evidence, the courts are generally very reluctant to do so unless the
evidence is corroborated or supported by some other independent evidence. Thus, circumstantial
evidence, while admissible, is generally suspect and inconclusive unless it is strong and
compelling and/or corroborated. E.g. skid marks on the wrong side of a road that were made
immediately before an accident. This is evidence that one of the drivers was on the wrong side of
the road and traveling fast from which other facts can be deduced i.e. the driver of that car was in
the wrong. This can be corroborated by a police sketch of the scene.

CONCLUSION
Circumstantial evidence has already been defined as a fact from which the judge may infer the
existence of a fact in issue. The evidentiary fact usually has to be proved by testimony but it is an
independent item of evidence because the witness’s assertion may be perfectly true, and yet the
inference from the fact asserted to the fact in issue may be incorrect. In conclusion therefore,
circumstantial evidence having been adequately defined and explained in detail, one can note and
acknowledge its value in a criminal trial; which it undoubtedly important. It is a further
observance that this evidence is capable of being convicted on solely as has been illustrated
above and explained it detail.

BIBLIOGRAPHY

 https://blog.ipleaders.in/
 https://legalservicesindia.in/
 The Law of Evidence by Chief Justice M. Monir, Seventh Edition 2006