This article is written by Somya Jain, from the Vivekananda Institute of Professional Studies. The article analyses the judgment of State of Odisha v. Banabihari Mohapatra (2021) concerning the scope of substantive evidence. The article extensively deals with various legal principles underlying the judgment.


A judgment in any criminal matter is concerned with the weightage that a piece of evidence carries in the eyes of law. Conviction of the accused, when the charges are grievous, should be holistically viewed, keeping in mind the rights of the accused as well. Under the pretext of being accused, the offender should not be declared guilty of the offence before cogently and comprehensively construing the evidence. The general practice of law in India has been observed by following the principle of ‘innocent until proven guilty’. Therefore, without the prevalence of substantive evidence against the accused which would make them culpable of the offence, they cannot be considered an offender of the same. The commission of the offence along with the evidence must conclusively establish the guilt of the accused behind such an offence. There must be no suspicion left while interpreting the evidence at large. Thereby, the evidence produced must be substantial, and not merely corroborating or contradicting which creates a probability of alternatives. Evidence should be such that it would directly cause the judges to opine the guilt of the accused and not establish secondary thoughts.

As far as the scope of proving the guilt of the accused is concerned, a plethora of precedents has clarified the position on the same. The intricacies of what forms part of the substantive evidence and on what conditions the accused is upheld guilty have been time and again observed by the court. One such recent judgment delivered in the case of State of Odisha v. Banabihari Mohapatra and another (2021) has clarified the position on the grounds to be looked at before convicting the accused in atrocious cases involving only circumstantial evidence.

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The background of the case of State of Odisha v. Banabihari Mohapatra and another

In the present case, a Special Leave Petition was filed by the State of Odisha against the order passed by the High Court of Orissa, dismissing an application for leave to appeal in the judgment that was given by the Sessions Judge thereby acquitting the respondents from the charges under Section 302/201 read with Section 34 of the Indian Penal Code. The petitioner state contended that the High Court failed miserably to impart justice by dismissing the application for leave to appeal in such a grievous case of murder. The Supreme Court expressed that the High Court was correct in giving this order as even though the order was based on the delay of 41 days, it was passed only after appreciating the merits of the case. Since the petitioner state failed to establish the guilt of the accused after considering the evidence and the statements of the witnesses, the court found it appropriate to not interfere with the decision of the Trial Court and the High Court. 

An overview of the factual matrix

The facts of the case are:

  • An FIR was filed by Gitanjali Tadu (hereinafter referred to as the complainant) that her husband Bijay Kumar Tadu (hereinafter referred to as the deceased), who worked in Home Guard, Chandabali and was deputed at Chandabali Police Station, had been murdered by Banabihari Mohapatra (hereinafter referred to as the first accused) and his son Luja, along with other accomplices. 
  • According to the complainant, the deceased used to roam about with the first accused who owned an electric sales and repairing shop named, “Raja Electricals” at ferry ghat near Chandabali bus stand. 
  • It was alleged that on 23rd June 2014 at around 7:30 in the morning, the first accused approached the residence of the complainant and informed her about her husband being in a state of dormancy. Later Luja also told the complainant about the motionless state of the deceased.
  • The complainant rushed to the said place along with her family members and found her husband lying dead in a locked room, with a burn injury on his right foot which was caused due to electric shock. It was alleged by the complainant that the accused, along with his accomplices had caused the death of her husband by giving electric shock after administering some poisonous substance to him. 
  • The Sessions Judge Bhadrak framed charges against the accused and his son relating to the causing of murder and disappearance of evidence and are thus guilty of offences under Sections 302/201 read with Section 34 of the IPC.
  • The judgment of the sessions judge was in favour of the accused as the prosecution failed to prove the charges against the accused. The accused was thereby acquitted under Section 235(1) of the Code of Criminal Procedure

The issues which were established by the court in the case were:

  1. Whether suspicion can constitute established evidence for the commission of a crime? 
  2. Can a case against the accused be established with only circumstantial evidence? 

Analysing the evidence given by the parties

It is pertinent to understand and analyse the evidence which has been appreciated by the courts before delivering the judgment of acquittal as it forms the basis of the judgment. The entire case was however based on circumstantial evidence and no such substantive proof was available for perusal. Some of the interpretations of evidence given by the court are:

  • There were in total 9 prosecution witnesses and not even a single witness can be considered as an eye witness to the said incident. The deceased was found dead in a room that belonged to the first accused but neither of the accused absconded the crime scene and rather they were the ones who informed the complainant regarding her husband’s whereabouts. 
  • According to the postmortem report, the death of the deceased was due to electric shock. The examination doctor reported that the deceased was intoxicated as there was a presence of alcohol in his body. The doctor thereby suggested that the incident was either homicidal or accidental; not suicidal. Thus, there was no conclusive evidence that the death was homicidal.
  • The Court observed that the complaint was established purely on suspicion as no direct evidence was available proving the guilt of the accused. The complainant based his claim on the apprehension that since the deceased was found on the premise of the accused, the accused must have murdered the deceased. But merely the presence of this fact does not establish the guilt of the accused. 
  • Out of the nine witnesses, three witnesses were declared hostile by the court. Further, the wife, brother and sister of the deceased had many inaccuracies, apparent inconsistencies and inherent improbabilities in their statements. They contended that the accused had a motive to kill the deceased. The deceased was claimed to have taken a loan of Rs. 20,000 from the accused and did not repay it, even after continuous requests. However, such a claim did not find any place in the FIR and was given at a later stage. 
  • Further, the Court stated that no genuine efforts were made by the prosecution to enquire about the whereabouts of the deceased even after he was missing the whole night. This rather seems peculiar and unnatural. 

Judgment of the Court

The Supreme Court bench comprising Justice Indira Banerjee and Justice Hemant Gupta upheld the decision of the Trial Court and the High Court of Orissa to acquit the accused respondents as no substantive evidence was established before the court. 

The Court vindicated the accused by stating that the prosecution had failed miserably to establish the guilt of the accused. A conviction cannot be imparted merely on the grounds of suspicion. The prosecution has to prove the guilt of the accused beyond a reasonable doubt, without which he cannot be charged with any offence. Placing a strong foot on the law, the Court added that there were a plethora of judicial pronouncements which settled the issue thereby stating that suspicion, however strong, cannot take the place of proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt

Considering that the case is solely based on circumstantial evidence, a chain of evidence should be present to show in all human probability that the act has been committed by the accused only. The facts on which the conclusion of the guilt has to be drawn must be fully established and it should be consistent with the hypothesis of the guilt of the accused. There should be no reasonable doubt of the accused being innocent after perusing the evidence. 

The court, appreciating each issue in the case, held that the acquittal of the accused has been the right judgment delivered by the Trial Court and the High Court. There was a strong possibility that the death of the deceased was accidental and not homicidal, as the autopsy report showed signs of intoxication due to alcohol which thus established a strong possibility that the deceased might have accidentally touched a live electrical wire that eventually caused his death. Thus, the judgment of the High Court denying the appeal is not violative of Article 136 of the Constitution of India and thereby does not require any interference.  

Judgments supporting different legal aspects of law in the matter

While dealing with the matter, the court considered various judicial pronouncements which are settled on the issue at hand. Supporting the present case, these judgments form a part of the critical analysis of the matter. Some of the judgments referred by the court are:

Circumstantial evidence

As far as the basis of the present matter is concerned, it revolves entirely around circumstantial evidence. It becomes extremely necessary to observe each and every aspect of the established facts before convicting the accused. There have been numerous cases whereby the court has reiterated the essential principles that are to be observed while interpreting the circumstantial evidence. 

In the case of Shanti Devi v. State of Rajasthan (2012), the Court went on to enumerate the well-established principles which courts have to peruse before deciding the fate of the accused. These principles are:

  1. Firstly, the facts and the circumstances, which sought to establish the guilt of the accused, must be cogently and firmly substantiated. 
  2. Secondly, the circumstances should be conclusive and should unerringly point towards the guilt of the accused.
  3. Thirdly, there should be a conclusive proof while taking the circumstances cumulatively. There should be a chain of evidence established, leaving no human possibility that the crime was not committed by the accused. 
  4. Lastly, the court must ensure that the evidence so established must be complete and incapable of any other hypothesis on the guilt of the accused. Further, the circumstances must not only be corroborating with the guilt of the accused but should also be inconsistent with his innocence. 

The above five principles are considered the golden principles, constituting the “Panchsheel” of the proof of a case based on circumstantial evidence. 

In another case of Kali Ram v. State of Himachal Pradesh (1973), the Court observed that while administering justice in criminal cases, if a situation arises whereby the evidence adduced before the court establishes two views, one pointing at the guilt of the accused and the other pointing towards his innocence, then the view which is favourable to the accused must be undertaken by the courts. This principle is especially applicable in cases where the guilt of the accused is proved through circumstantial evidence. The Court further reiterates that if reasonable doubt regarding the guilt of the accused arises, then the benefit of doubt cannot be withheld from the accused. The yardstick to adjudge the guilt of the accused can only be rendered by perusing the evidence brought on record. Lastly, the Court also stated that the judicial system will be shaken when a wrongful conviction of an innocent person is observed. 

Suspicion cannot replace proof

Acknowledging the underlying issue of whether courts can deliver orders of conviction based merely on suspicion, the Court has placed a strong holding that suspicion, however strong, cannot take the place of proof. Therefore, the mere presence of suspicion will not render the guilt of the accused to be established. The Court has referred to the judgment of Sujit Biswas v. State of Assam (2013)

In the above case, the Apex Court observed that suspicion, however grave it may be, cannot take the place of proof, as there is a large difference between something that ‘may be’ proved, and something that ‘will be proved’. The difference between the two leads to the division of vague conjectures and sure conclusions. Considering vague interpretations, without being backed by cogent and unimpeachable evidence, while convicting an accused, will lead to miscarriage of justice. It is substantial for any court to ensure complete and comprehensive appreciation of the facts and circumstances, in addition to analysis of the evidence brought on record. If reasonable doubt, not being trivial or merely a probable doubt, is present under the circumstances of the case, then the benefit of doubt must be provided to the accused at large. 

Other referred cases

The Court further discussed the scope of the appeal from conviction and appeal from acquittal. Referring to the case of Sadhu Saran Singh v. State of U.P. (2016), the Court observed that an appeal against an acquittal is kept on a different pedestal altogether, as compared to an appeal against a conviction. Speaking of the appeal from an acquittal where the innocence of the accused is reinforced, the Appellate Court would interfere with the order only when the law and the fact will be perverse. Thereby, facts and evidence, which are flimsy and untenable and do not directly establish the guilt of the accused, will not render the reversal of the judgement.

Analysing the requirements and scope for guilt to be proved in circumstantial evidence

Circumstantial evidence is in itself direct evidence that is applied indirectly. It mainly points towards reasonable inference made on the existence and non-existence of evidence. A person’s guilt may be proved while interpreting the circumstantial evidence, but rather than establishing the evidence directly, an inference of guilt beyond a reasonable doubt must be procured. 

A common misconception lures the halls of justice, stating that circumstantial evidence holds less value in the eyes of law when compared to direct evidence. But no such interpretation has been given by any court, rather, both direct evidence and circumstantial evidence are given equal weightage during the conviction of the accused. Thereby, even the prevalence of circumstantial evidence, which proves the guilt of the accused beyond a reasonable doubt, is enough for delivering a judicial pronouncement convicting an accused. 

The value that circumstantial evidence holds in the eyes of the law makes it all the more necessary to provide a basis for establishing such evidence. Not all circumstances are considered substantial for proving the guilt of the accused, as they form a part of vague and untenable circumstances. Thereby, courts have reiterated the position of the circumstantial evidence in a plethora of judicial pronouncements. The essential requirements for proving the guilt solely based on circumstantial evidence are:

  1. While analysing the circumstances, the court should ensure that all the facts are firmly established. They should be complete in their essence and no doubt or suspicion must be left in the minds of the judge. 
  2. There should be a complete chain of evidence undoubtedly pointing towards the guilt of the accused. This chain of events must conclude the guilt of the accused, leaving no probability of the innocence of the accused. 
  3. The circumstantial evidence so established must only produce a hypothesis of the guilt of the accused. No alternative probability should be prevalent while analysing the evidence as it would render the accused the benefit of doubt. 
  4. Further, the evidence-based on the circumstances and facts of the case must conform to the hypothesis of the guilt of the accused. It should be conclusive and definite in nature. 
  5. Suspicion or conjectures regarding the innocence of the accused, however strong, has to be rooted out before delivering the judgment of conviction. The possibility of suspicion creates the greatest benefactor for the accused in such cases. 
  6. As far as the onus of proving the guilt of the accused is concerned, the prosecution has the burden to establish a chain of circumstances exhaustively and comprehensively. (Sharad Birdhi Chand Sarda vs State Of Maharashtra 1984)
  7. While dealing with the case of an appeal against the acquittal of the accused, the appellate court must ensure the presence of perversity. (Anwar Ali and another. v. The State of Himachal Pradesh 2020)
  8. When circumstances are put forward before the accused for examination under Section 313 of the Criminal Procedure Code, the denial of the prosecution case without any explanation will be added to the additional chain of circumstances and will be further considered inconsistent with the innocence of the accused. (Ganeshlal v. State of Maharashtra 1992)
  9. The circumstantial evidence can form the sole basis for the conviction of the accused, provided that all the necessary conditions are fulfilled. Therefore, the mere presence of circumstantial evidence which proves the guilt of the accused beyond a reasonable doubt can convict the person. (Bodh Raj v. State of Jammu & Kashmir 2002)

Interpretation of the extent of substantive evidence to be considered by the courts

The present matter has highlighted the growing need to analyse the scope of substantive evidence. It has covered several legal aspects which form the basis of jurisprudential principle followed by the Indian courts from time immemorial. Some of these principles are discussed as follows:

A strong suspicion is not a ground for conviction

Time and again courts have reiterated the essentials for proving the guilt of the accused, in cases that are based solely on circumstantial evidence. For guilt to be proved a complete chain of events must be cogently placed. Even a slight doubt or a strong suspicion cannot be considered for convicting an accused. The courts are required to entertain the conviction of the accused where the prosecution has left no other hypothesis of guilt other than that of the accused. There should not be any human possibility left that would point towards the innocence of the accused. Suspicion, therefore, is disregarded by the courts as it creates an apprehension or conjecture of the innocence of the accused in the minds of the judges. 

The accused is innocent until proven guilty

The first and the foremost principle in criminal jurisprudence is that the accused is always presumed to be innocent until he is proven guilty of the said offence. Our society believes what is told to them. Similarly, people form their opinion when any accused is presented before the court. But it is the judiciary that has to discern the rights of the accused. Thus our criminal justice is laid on the foundation of treating an accused innocent until his guilt has been proved before the court. 

The presumption of innocence was first established by Blackstone who observed that ten accused may go but no innocent should become a martyr. The concept of ‘innocent until guilty’ has been practised for a long time in India now. Though the principle finds no place in the Indian Constitution, it can be construed from Article 20(3) of the Indian Constitution, which provides the right to the accused against self-incrimination. If an accused is forced to give a statement against himself, it would prove to be ghastly for keeping both the parties on an equal footing. Further, Section 101 and 102 of the Indian Evidence Act provides that it is not the accused who has to prove his innocence, rather, it is the prosecution who needs to establish the guilt of the accused.  

Justice V.R Krishna Iyer, in the case of Shivaji Sahebrao Bobade and another v. State of Maharashtra (1973), held that in desperation to apply the principle of innocence of the accused, the criminal justice should not be diluted. The courts should adopt a pragmatic approach while dealing with such cases. He observed that the theory stating ‘a thousand guilty men may go, but one innocent martyr shall not suffer’ is a false dilemma. One cannot hide under the garb of doubts of him being an accused which are not reasonable in essence. This would negatively affect the faith of the people in the judiciary. Therefore, the presumption of innocence must be construed under criminal justice based on potent and realism.  

The involvement of the accused must be proved beyond reasonable doubt 

In the words of Justice Cookbur, “It is business of the prosecution to bring home the guilt of the accused to the satisfaction of the minds of the jury; but the doubt to the benefit of which the accused is entitled to must be such as rational thinking, sensible man fairly and reasonably entertain, not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism. There must be a doubt which a man may honestly and conscientiously entertain”. 

In a civil case, mere “preponderance of evidence” is essential. It establishes a lower degree of proof as compared to “proof beyond a reasonable doubt” adopted by the Indian courts in criminal cases. Thereby, the prosecution, having the burden of proof, has to prove the guilt of the accused beyond a reasonable doubt, leaving no probability for the innocence of the accused. If the prosecution fails to adduce such evidence, the accused will be granted the benefit of doubt. 

Delving into the concept of ‘proof beyond a reasonable doubt’, the Supreme Court has time and again explained what would be regarded as reasonable and its underlying scope. In the case of State of Madhya Pradesh v. Dharkole @ Govind Singh and others (2004), the Court reiterated that doubts will be regarded as reasonable when they are free from any speculation. Further, reasonable doubt should not be trivial, imaginary or a mere possible doubt, rather, it must be based on reason and common sense of the prudential person. Reasonable doubt must be interpreted from the evidence produced before the court and not from vague apprehensions. 

In another case, i.e., State of UP v. Krishna Gopal and another (1988), the Apex Court explained the concept of ‘reasonable doubt’. According to the Court, there should be a subjective evaluation of the degree of probability and the quantum of proof. There should be resilient common sense and trained intuitions of the judges that should define the scope of reasonable doubt.

However, it has to be understood that the benefit of doubt given to the accused should be perused in accordance with the caution not extending to a miscarriage of justice. The thread of reasonable doubt should not be stretched without any basis and thereby embracing even a hunch or hesitancy as being reasonable. Further, when the onus of proof shifts on the accused, the accused is not required to prove his innocence beyond a reasonable doubt, rather, he is expected to prove the preponderance of probability. Therefore, while acquitting or convicting an accused, the principle of ‘proof beyond a reasonable doubt’ should be established. 


The standpoint of the scope of substantive evidence has been cleared by the stance of the courts in several cases. There is no doubt in the application of established principles by the judiciary. Our criminal justice treats every individual with equality. Therefore, every accused has been granted the right to protect himself from the potent misrepresentation. When direct evidence is absent from any case and the entire case is based on circumstantial evidence, a greater degree of proof is required to convict the accused. Mere suspicion will not be the basis for conviction no matter how strong it is. Only a well-established and complete chain of circumstances that points directly towards the guilt of the accused, leaving no other hypothesis, will lead to a conviction. Therefore, the courts must ensure that a thorough and competent investigation, along with a cautious and proper appreciation of evidence, must be conducted to be in tune with the noble objective of criminal justice in India. 


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