JAMIA MILLIA ISLAMIA

Circumstantial Evidence
-Its Elements and Application

“Circumstantial evidence is a very tricky thing. It may seem to point very straight to one

thing, but if you shift your own point of view a little, you may find it pointing in an equally

uncompromising manner to something entirely different”

― Arthur Conan Doyle, The Adventures of Sherlock Holmes

SUBMITTED TO: SUBMITTED BY:

Mr. Gaurav Gupta Sheenu John
BA. LLB. (Hons.)
4th year S/F
Roll No. 56
 ACKNOWLEDGEMENT

First of all, I’m grateful to The Almighty God for establishing me to complete this project.

I wish to express my sincere thanks to Dr. Sajid Z. Amani, Dean, Faculty of Law, Jamia

Millia Islamia, for providing me with all the necessary facilities.

I place on record, my sincere gratitude to Mr. Gaurav Gupta, Lecturer, Evidence Law,

Faculty of Law, for his constant encouragement and providing invaluable guidance,

comments and suggestions throughout the course of the project.

I take this opportunity to record my sincere thanks to all the faculty members of the

Department of Law, Jamia Millia Islamia, for their help and encouragement. I also thank my

parents for their unceasing encouragement and support.

I also place on record, my sense of gratitude to one and all who directly or indirectly, who

lend their helping hand in this venture.

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 ABSTRACT

Injustice anywhere is a threat to justice everywhere. Judiciary has the sole responsibility to

deliver justice by protecting the innocent and punishing the culprits. But the task of

differentiating innocent and culprit is not an easy option as the judge is never present at the

scene of crime and only becomes acquainted with the case once it is presented before the

court. In such situation judges rely on the evidences presented by the parties. Hence, evidence

has a very crucial role in determining the rights and liabilities of parties of the case. This

paper aims to explore and analyse circumstantial evidence and its necessary elements that

needs to be fulfilled along with some case references.

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 Basic Introduction to Circumstantial Evidence

Circumstantial evidence is the evidence based on inference and not in personal knowledge or

information.1 Peter Murphy defines it as “evidence from which the desired conclusion may be

drawn but which requires the tribunal of fact not only to accept the evidence presented but

also draw an inference from it”2

Circumstantial evidence also known as indirect evidence is evidence that give rise to a logical

inference that such a fact does exist. It relates to a series of facts other than the particular fact

sought to be proved.3 It is the evidence that is drawn not from direct observation of a fact at

issue but from events or circumstances that surround it. Circumstantial evidence is proof of a

fact, or a series of facts, which tends to show whether something is true.

Circumstantial evidence is evidence that relates to facts, other than those in issue, which by

human experience, have been found to be so associated with the fact in issue that the latter

must be reasonably inferred therefrom..4 Wills defined it as “ the evidence afforded not by the

direct testimony of an eye witness to the fact to be proved, but by the bearing upon that fact

or other and subsidiary facts which are relied upon and inconsistent with any result other than

truth of the principle fact.”5 Steve Uglow also defines it as “ circumstantial evidence ……

consists of evidence of circumstances, none if which speak directly to the fact in issue but

from which those facts may be inferred .” hence feelings of animosity towards the victim ,

presence in the area of attack, the victim’s blood on the accused’s clothing can all be

considered as circumstantial evidence.6

1
Bryan A. Garner, Blacks’s Law Dictionary, 9th edi. ( USA: West Publishing Co. 2011) 636
2
S.R. Myeni, The Law of Evidence, (Hyderabad: Asia Law House 2007), 20.
3
http://legal-dictionary.thefreedictionary.com/Circumstantial+Evidence accessed on 21st April, 2011.
4
Avatar Singh, Principles of The Law of Evidence, 17th edi. (Allahabad: Central Law Publications 2009), 34
5
Prakash Wasti, Evidence Law, 4th edi. (Kathmandu: Pairabi Prakashan 2053),58.
6
Myeni, n(3) 20.

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Some evidence proves a fact directly such as testimony of a witness who saw a jet plane

flying across the sky. Some evidence proves a fact indirectly such as testimony of a witness

who saw only the white trail that jet planes often leave. This indirect evidence is sometimes

referred to as "circumstantial evidence." In either instance the witness's testimony is evidence

that a jet plane flew across the sky.

Circumstantial evidence sometimes speaks as forcefully as the direct evidence. Although

direct evidence is always assumed as the best evidence but in cases where direct evidence is

unavailable, the whole case solely or largely depends on the circumstantial evidence. In such

situation the event needs to be reconstructed before the court with the help of the surrounding

circumstances such as the cause or the effects of the event. It is the duty of the lawyers and

court to carefully analyse the circumstances related to the event and draw inferences to prove

guilt or innocence of the accused.

Using circumstantial evidence is way of reasoning which draws probable conclusions from

facts that are known. The known facts lead to conclusion that are a reasonable step from the

known facts. . Circumstantial evidence relates to a series of facts other than the particular fact

sought to be proved. Circumstantial evidence is always in chain or network. It has even been

held that the accused cannot be convicted on the basis of circumstantial evidence if there is

missing link in the chain of events to prove the circumstances conclusively against the

accused.7

Furthermore, circumstantial evidence tends to prove one's case only by inference; that is,

circumstantial evidence permits the judge to infer that the advocate has established one or

more legal elements s/he is attempting to prove. Therefore, for circumstantial evidence to be

as persuasive as possible, the judges must not only accept it as true, they must also recognize

7
Manipur v Okram Jitan Singh 2005 Cr. L.J. 1646.

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and accept as valid an inferential connection between the evidence and what one contends it

proves.

Moreover, Circumstantial evidence consists of facts pointing in a particular direction-- facts

that are in harmony with one side or another, the hypothesis being analyzed, but standing

alone this related evidence is not sufficient to draw any definite conclusions. The inference

provoked from circumstantial evidence must flow logically, reasonably, and naturally from

the facts presented.

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 Elements of Circumstantial Evidence

Circumstantial evidence plays a crucial role in delivering justice. However it is to be taken in

great care that such evidence must fulfil the basic elements so as to admit it as evidence.

The supreme court of India held in a case8 that the circumstantial evidence can be the sole

basis for a conviction provided that the conditions precedent before conviction on

circumstantial evidence are fully established. The conditions 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 with the hypothesis of the guilt of the

accused.

3. Circumstances should be of conclusive nature and tendency.

4. They should exclude every possible hypothesis except the one to be proved.

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.

Similarly in another case9, the Supreme Court of India held the four things as essential to

prove guilt by circumstantial evidence:

1. That the circumstances from which guilt is established must be fully proved;

2. That all the facts must be consistent with the hypothesis of guilt and inconsistent with

innocence;

8
Bodh Raj v. State of Jammu Kashmir, AIR 2002, SC 316.
9
State of UP v. Ravindra Prakash Mittal, AIR 1992, SC 2045.

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3. That the circumstances must be of conclusive nature and tendency;

4. That the circumstances should, to a moral certainty, actually exclude every hypothesis

except the one proposed to be proved.

Similarly, the Supreme court of India also held that “The circumstantial evidence should not

only be consistent with the guilt of the accused, but should be inconsistent with his

innocence.”10 Moreover in another case regarding circumstantial evidence , it was held that

“it must appear that the inference of guilt is the only one that can fairly and reasonably be

drawn from the facts, and that the evidence excludes beyond a reasonable doubt every

reasonable hypothesis of innocence.”11

Hence C.J. Monir opines that Circumstantial evidence should be both exclusive and

conclusive i.e. it must exclude the hypothesis of innocence of the accused and must

conclusively establish his guilt.12 Thus the basic elements of circumstantial evidence can be

listed as:

1. There must be a chain of evidence showing that the act must have been done by the

accused.

2. All facts so established should be consistent only with the hypothesis of guilt and

inconsistent with innocence of the accused.

3. Circumstances should be of conclusive nature.

4. Circumstances should exclude the possibility of guilt of a person other than the accused.

10
Gambhir v. State of Maharastra, AIR 1982 SC 1157 (1159).
11
People v Sanchez, 61 N.Y.2d 1022, 1024 (1984).
12
M.Monir, Textbook on The Law of Evidence, 7th edi. (Delhi: Universal Law Publishing Co. 2008) 13.

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5. Circumstantial evidence should always be direct and not based on presumption.13

Application of Circumstantial Evidence in Nepal:

The Supreme court of Nepal, in past years has given verdict on various issues relying in the

circumstantial evidence. The following are some of those cases.

The Supreme Court of Nepal, in the case of Charles Sovaraj v. Nepal Government14, in case

of homicide held that, “analysing the process applied in committing and nature of crime, it

seems that the criminal had been fully aware and had committed the crime in a planned

manner. In such situation, the indirect evidence especially the circumstantial evidence

presented by the prosecutor should lead to the criminal and since the guilt seems to be proved

on the basic of such evidence, the criminal is to be convicted.”

Similarly, Supreme Court of Nepal, in the case of Malati Devi Kalwar v. Nepal

Government15, case of homicide has propounded that, “circumstantial evidence should

always be direct and not based on presumption. What are circumstantial evidence should be

clearly mentioned and the different facts related to the issue should be connected with each

other in chain….”

Moreover, in the case of Chandrapraksah Joshi etal v. HMG16 the Supreme Court held that, “

by just convicting the offenders on the basis of circumstantial evidence does not mean that

they are not convicted in factual basis”

Similarly the Supreme Court in another case of Bahadur alias Dilip Singh Thakur v HMG17,

regarding homicide has propounded that, “ the statement given by the accused before the

police, if also supported by the circumstantial evidence can be accepted as an evidence.”

13
Malati Devi Kalwar v. Nepal Government, NKP 2064, P 1600.
14
NKP 2067, P 814.
15
NKP 2064, P 1600.
16
NKP 2055 P. 111

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Similarly, in another case of Bachhi Bista Chhetri v. Kabindra Bahadur Bista Chhetri18 the

Supreme Court held that, “the sexual activity done between a boy and a girl with their

consent is not a matter of public so normally no witness is found. Hence in such situation to

determine the sexual activity, the court should depend on the attitude of the parties and other

circumstantial evidence.”

Analysis and Conclusion

Analysis:

Monir has rightly opined evidence to include all means by which any alleged fact is proved or

disproved to the satisfaction of the court. Every case that comes before the court has a fact

behind it. And the judges, in order to deliver justice, have to analyse those facts by the use of

evidence presented. The evidences so presented may not always be direct. In such situation,

the court relies on the indirect or circumstantial evidence. Circumstantial evidence is often

regarded as weak type of evidence but it is not so. The only thing is that it should be used

with caution. Hence, circumstantial evidence need to fulfil certain elements. These elements

should be strictly followed by the court to decide any case. When the court relies on

circumstances it has to pay immense care because if it is not done so, then there lied a chance

of an innocent being the victim by the court, which is fact is against the very foundation of

justice. One of the basic elements is to prove the guilt beyond reasonable doubt. Similarly

there must be a chain of evidence showing that the act must have been done by the accused.

Circumstantial evidence is in fact, communication of facts, creating a network from which

there is no escape for the accused because the fact taken as a whole do not admit any

inference except that the guilt of the accused. Moreover before the court may draw an

17
NKP 2042, DN 2521, P 941.
18
NKP 2034, DN 1052, P 138.

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inference of guilt, however, that inference must be the only one that can fairly and reasonably

be drawn from the facts, it must be consistent with the proven facts, and it must flow

naturally, reasonably, and logically from them. Analysing the cases mentioned above, it is

well proved that the Nepalese court also rely on the circumstantial evidence. The courts seem

to closely analyse the circumstances in which the event had occurred and carefully draw

inferences to avoid any chances of miscarriage of justice. Courts entertain circumstantial

evidence in absence of any direct evidence and while doing so pay caution in order to avoid

any inconvenience to be aroused by it. Thus, circumstantial evidence seems to bear an

integral position in the law of evidence.

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 Conclusion

Every time any case is presented before the court, it gives verdict on the basis of evidence

presented by the parties. These evidence should be analysed with immense care as a single

mistake may lead to acquittal of perpetrator or conviction of innocent. Among many types of

evidence, circumstantial evidence which solely relies on circumstance is also an integral type

of evidence. It has certain basic elements which the court looks upon minutely. Fulfilling

those evidence might be a tedious work but once the elements are fulfilled, circumstantial

evidence becomes as authentic as or sometimes even more authentic than the direct evidence.

Moreover, it was even held in Billasia murder case that ,” men may tell lie, women may tell

lie, but circumstances do not tell lie”19 hence, circumstantial evidence has been a is key

concept to deliver justice in absence of any direct evidence and the courts entertain it with

great care and caution.

19
Narayan Prasad Lamsal, Law of Evidence,2nd edi., (Kathmandu: Sagha Prakashan 2030) 22.

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 Bibliography

1. Lamsal, Narayan Prasad , Law of Evidence,2 nd edi., (Kathmandu: Sagha Prakashan 2030)

2. Monir M., Textbook on The Law of Evidence, 7th edi. (Delhi: Universal Law Publishing

Co. 2008).

3. Myeni S.R., The Law of Evidence, (Hyderabad: Asia Law House 2007).

4. Singh Avatar, Principles of The Law of Evidence, 17th edi. (Allahabad: Central Law

Publications 2009).

5. Swarchha Adalatbata Pratipadit Praman Kanoonsambandhi Kehi Mahatyapurna Najirharu

(2015-2062), (Kathmandu: Supreme Court 2063).

6. Wasti Prakash, Evidence Law, 4 th edi. (Kathmandu: Pairabi Prakashan 2053).

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