“CIRCUMSTANTIAL EVIDENCE” By: MUHAMMAD TAQI KHAN Advocate Supreme Court of Pakistan Circumstantial Evidence means a combination of fact creating a network from which, there is no escape for the accused, because a facts 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 Govinds 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. Case Law In the following cases, conviction based on last seen evidence, extra-judicial confession was upheld:-- (i) Ss.302. 364-A & 201--Constitution of Pakistan (1973), Art. 185(3)—Deceased was last seen with the accused before he was found missing--Prosecution witness before whom the accused had made extra-judicial confession had supported the prosecution case in unequivocal terms who had no malice, ill-will or animosity against the accused to falsely implicate him in the case--Accused had pointed out the place where he had thrown the deceased in the canal and had led to the recovery of the shirt of the deceased which had further corroborated the prosecution case--Courts below had correctly appreciated the evidence on record--Impugned judgment was based on good reason and the law laid down by Supreme Court and was not open to any exception--Leave to appeal was declined to accused accordingly. [p.207] A, B & C (2004 SCMR 204). (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 Madhya Pardesh v. I.B.S. Prasada Rao, noted hereafter). 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 Govinds 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.
Posted on: Mon, 22 Sep 2014 16:25:32 +0000
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