This article has been written by Ishaan Banerjee, studying in Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article explores circumstantial evidence and the conditions for its admissibility. This article also delves deep into the concept of admissibility of evidence in subsequent proceedings. 

Introduction

Almost everyone must have seen movies where lawyers establish their points using the circumstances of a situation. If a theft had occurred, and the suspect was seen on a shopping spree soon after, then the lawyer would probably try to use this fact to prove that the suspect did commit the theft. These kinds of situations, wherein the circumstances surrounding the case are analyzed and used to make points, happen in the courts everyday. This article will take a closer look at the concept of circumstantial evidence and on what basis it is admissible in a court of law. The article looks into the circumstances when evidence from an earlier case can be admitted in a later case, or at a later stage of that case. 

What is the condition for allowing a piece of evidence to be admissible?

According to Section 5 of the Indian Evidence Act, 1872, the general condition for some evidence to be considered admissible is that it should be relevant. In R.M. Malkani v. State of Maharashtra AIR S.C.157 (1973) it was stated that even illegally obtained evidence has been held to be admissible in court. However, the value of this evidence may be affected through cautious analysis of that evidence. The source of the evidence does not matter for now, but with the ‘Right to Privacy’ being declared a fundamental right in Justice K.S. Puttaswamy v. Union of India 1 SCALE 10 2017, there may be changes in the future. 

Section 6 of the Indian Evidence Act, 1872, contains the doctrine of res gestae. Res gestae facts are part of one and the same transaction. If any act fails to form a linkage with the transaction, then it is not considered res gestae and therefore, is not part of the transaction. This doctrine does not have any exact translation. 

Facts, other than the facts in issue, may be proved to be res gestae, but both these sets of facts should be connected to each other. Though hearsay evidence is not admissible, when it is part of res gestae, it may be admissible. This is due to the fact that the spontaneity and immediacy of the statement would be such that there is hardly any time for concoction. So, such statement must be contemporaneous with the acts which constitute the offence or at least immediately thereafter.Under this doctrine, a test had been laid down for admissibility wherein it can be decided whether a hearsay statement made by a bystander or the victim which indicates the identity of the attacker is admissible or not:

1. Whether the identification was relevant?
2. Whether it was spontaneous?
3. Was there an opportunity for concoction?
4. Whether there existed any real possibility of error?

What is circumstantial evidence?

Evidence, in general, can be referred to as ‘fact findings’. Therefore, evidence helps to determine what actually happened. It allows the court to gain insight into the depths of the case. 

Circumstantial evidence can be defined as that evidence which attempts to prove the facts in dispute by proving other facts. These facts revolve around the circumstances surrounding the case. Circumstantial evidence is generally not taken as full proof, but it usually serves as a guide to establishing the rest of the facts, which could actually serve as hard and full proof. Therefore, circumstantial evidence works on deduction. It is precisely due to these reasons that circumstantial evidence is also called indirect evidence. 

Most criminals obviously try their best to leave no direct and incriminating evidence, therefore the prosecution often depends on circumstantial evidence to prove their side or to prove that the criminal did the act knowingly and intentionally. Only if there is a chain between the facts which are being proven by the circumstantial evidence and the other main facts of the dispute, then the conviction will succeed on the basis of circumstantial evidence. In Ashok Kumar v. State of Madhya Pradesh AIR 1989 SC 1890, it was held by the Supreme Court that there should be a complete chain of events and it should establish the guilt of the accused beyond reasonable doubt, that he committed the offence without any possibility of an alternative.

For example: A, B and C live in the same house. B is woken up by a loud commotion coming from A’s room. B hurries over to A’s room and sees C coming out of that room covered in blood and holding a knife. A is later found to be dead. 

In this situation, B’s evidence about C carrying a knife and being covered in blood will be treated as circumstantial evidence as B did not actually see C killing A. It can only be inferred from this evidence that C killed A. 

Essentials for conviction purely through circumstantial evidence

In the cases of State of Uttar Pradesh v. Ravindra Prakash Mittal AIR 1992 SC 2045 and Bodh Raj v. State of Jammu and Kashmir AIR 2002 SC 316, it was held that a conviction can happen purely on the basis of the circumstantial evidence if these essentials were fulfilled:

• The circumstances which establish the guilt of the accused have to be proven.
• The facts that have been established ought to be according to the hypothesis of the accused.
• The circumstances should be conclusive in nature and tendency.
• There should be a complete chain and linkage of proof which establishes beyond reasonable doubt, the guilt of the accused and also establishes that the act had been committed by the accused.
• The circumstances present must exclude all other hypotheses or scenarios or situations from happening, except the one which is being tested by the evidence.

Even in the famous Jessica Lal murder case, [Siddharth Vashisht alias Manu Sharma v. State of NCT of Delhi, 2010 (69) ACC 833 (SC)], the admissibility of the circumstantial evidence was called into question. The witnesses in this case had turned hostile, which compelled the Trial Court to give the decision in the favour of the defendant i.e Manu Sharma. The Trial Court also gave the reason that the police had failed to recover the weapon. There was also no proof to support the theory of the prosecution that two cartridges whose empty shells were found at the crime scene, were fired from the same gun. 

However, the High Court overturned the decision stating that the Trial Court did not consider the testimonies of witnesses properly and also established that the cartridges belonged to the accused. The Supreme Court also gave the same decision, stating that the presence of the accused at the crime scene had been established through several witness testimonies. The Court held that the circumstantial evidence wherein the vehicles and cartridges were connected to the accused and his conduct after the crime, wherein he absconded for a short period; all pointed to the fact that he was guilty beyond reasonable doubt. 

Similarly, in the case of Santosh Kumar Singh v. State Th. Cbi (2010) 9 SCC 747, otherwise known as the Priyadarshini Matto case, a student had committed rape of Priyadarshini Matto. The Trial Court erroneously held that there was no evidence to suggest that Santosh Kumar committed the rape. The High Court, and subsequently, the Supreme Court disagreed with the Trial Court’s decision and held the accused to be guilty under Section 302 and Section 376 of the Indian Penal Code, 1860. The Court also held that the evidence was incompatible with the innocence of the accused.

Admissibility in proceedings

Therefore, looking at the above criteria for admitting a piece of evidence to the Court, one can conclude that circumstantial evidence would certainly be admissible in Courts on the basis of its relevance in that particular case. Furthermore, there should be a chain and direct causage between the circumstances on which the prosecution has built its case and the rest of the facts and the act of the accused. Various judgments have laid down guidelines for the situation when circumstantial evidence can be used for conviction. 

Admissibility of evidence in subsequent proceedings

The question often arises: can evidence from a case be used in a separate case, or in a later stage of the same case? Section 33 of the Indian Evidence Act, 1872 has a provision for admissibility of certain evidence in a subsequent proceeding, for the purpose of proving the truth of the facts in that particular proceeding. 

Elements of Section 33

• The evidence given by a witness in an earlier proceeding or before any person authorised by law to take evidence can be used in subsequent proceedings. This is applicable in a subsequent proceeding when:

1. The witness is dead. 
2. The witness cannot be found. 
3. The witness is incapable of giving evidence.
4. The witness is kept out of the proceeding by the adverse party.
5. The witness’s presence cannot be obtained without an amount of delay or expense, which the Court finds unreasonable in the circumstances. 

This is also subject to three conditions:

1. The proceeding (the earlier proceeding) was between the same parties or between the same parties’ representatives.
2. The adverse party in the first proceeding had the right and the opportunity to cross examine.
3. The questions in issue were the same in the first and the second proceedings.

Whether parties to the latter proceeding should be parties or the representatives of the parties to the earlier proceeding or vice versa? 

• In English law, the parties to the latter proceeding must be the same as the parties or must legally represent the parties in the first proceeding. The Privy Council, in Krishnayya v. Venkata Kumar AIR 1933 PC 202, held that the section did not invert the normal principle of representation. However, jurists have argued that this section needs to be like the provision in English law.
• It has been noted in the 185th Report of the Law Commission of India, that while following the Indian statute, if parties in an earlier proceeding are slated to be the legal representatives of the parties in the latter proceeding, one must have regard to the limited span of human life. Therefore, this section would get restricted to cases where, in the earlier proceeding, younger people would be the representatives of the old people who would be parties in the later proceedings. Therefore, the principles of representation in this situation is wrong. 
• Therefore, the Commission has recommended amending Section 33, in accordance with Sir James Stephen’s Digest, wherein it has been stated that under English law, the the party to the latter proceeding must be party or representative in interest of the party in the earlier proceeding. 

Conflict when one case is civil in nature and the other is criminal in nature

The 185th Report of the Law Commission has discussed Section 33 in detail. Another problem regarding Section 33 is explained below-

• The explanation to Section 33 states that: ‘A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused’. For example: if a ditch dug by an independent contractor is left uncovered and without any warning signs, and a person falls in and injures himself, then he may claim damages from that contractor, and in that case the suit will be a private one. However, the State can also levy charges on the contractor for criminal negligence and other relevant Acts; then a criminal case is formed.
• Some of the witnesses who had appeared in the criminal case may be dead by the time the civil case comes up for trial. Therefore, if the evidence given in the criminal case is used in the civil case, it may be objected on the ground that the parties are different in the cases, with the parties being the State and the contractor in the criminal case, while the parties in the civil case would be the victim and the contractor.
• For the above ambiguity, the 69th Report of the Law Commission of India suggested that Section 33 be amended to include two parts wherein one would deal with a criminal case based on a private complaint and the other would deal with a suit instituted by the State.
• Therefore, it suggested that the criminal proceeding instituted by a private person should be deemed to be a proceeding between the victim and the accused, if the victim is permitted to prosecute the accused under Section 302 of the Code of Criminal Procedure, 1973, while the the case between the State and the accused would already amount to a criminal proceeding. 

Provision for adverse party to have the opportunity and right to cross examine 

• In the case of Dal Bahadur v. Bijoy AIR 1930 PC 79, the Privy Council has held that the adverse party must have the right and opportunity to cross examine. However, in some cases, like in Sundare v. Gopala AIR 1934 Mad 100, it has been held that if the opportunity was there but the cross examination had still not taken place, then the party cannot later claim that it had not cross examined and evidence would still be admissible in the subsequent proceeding.
• However, the Supreme Court, in V.M. Mathew v. V.S. Sharma 1995(6) SCC 122, supported the view of the Privy Council and stated that in ex parte proceedings against the defendant, he would not have the right and opportunity to cross examine the witness. However, since he would not have the right to cross examine, the evidence from the witness, against the defendant, would not be admissible in a subsequent proceeding.

Question in issue

• In re: Rama Reddi (1881) ILR Mad 48, it was held that a question in issue in the two criminal proceedings need not necessarily be identical, but it would be sufficient if they were substantially the same.

Inter admissibility of evidence between civil and criminal cases

• In Bal Gangadhar Tilak v. Shriniwas Pandit AIR 1915 PC 7, it was held when there was no proof that the conditions under Section 33 were satisfied, then the evidence given in the earlier civil proceedings would not be admissible in a later criminal proceeding.
• In Kottam v. Umar ILR 46 Mad 117, it was held that the conditions can be waived through consent in civil cases, but not in criminal cases. 

Other judgments 

• In R v. Scaife (1851) 20 L.J.M.C 229: Tay sec. 472 fn, the case involved three prisoners who were indicted for felony and a witness for the prosecution was absent as he had been induced by one of the prisoners. It was held that the evidence in the subsequent proceeding would be admissible only against the person who induced the witness to be absent. 

Conclusion 

Circumstantial evidence is admissible on the basis of its relevance, but is not taken as full proof, instead serving as a base for establishing the full proof evidence. Tests have been laid down by the courts for situations when circumstantial evidence can be the sole basis for conviction. This article also looked into the conditions for admissibility of evidence in subsequent proceedings and what are the problems and ambiguities in that provision. The Law Commission has recommended several changes to the wording of Section 33, but these have not been carried out; instead, various judgments have been given to clear ambiguities. 

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