Circumstantial Evidence

Circumstantial Evidence

53. As already noted, all evidence let in before the court of law are classified either as direct or circumstantial evidence. “Direct evidence” means when the principal fact is attested directly by witnesses, things or documents. For all other forms, the term “circumstantial evidence” which is “indirect evidence” is referred, whether by witnesses, things or documents, which can be received as evidence. This is also of two kinds namely, conclusive and presumptive. Conclusive is when the connection between the principal and evidentiary facts – the factum probandum and factum probans - is a necessary consequence of the laws of nature; “presumptive” is when the inference of the principal fact from the evidence is only probable, whatever be the degree of persuasion which it may generate (Best, 11th Edition, Section 293). Thus, circumstantial evidence is evidence of circumstances as opposed to what is called direct evidence. The prosecution must take place and prove all necessary circumstances constituting a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence vide Navaneethakrishnan vs. State by Inspector of Police AIR 2018 SC 2027 (“Navaneethakrishnan”). 22 54. The principal fact can be proved indirectly by means of certain inferences drawn from its existence or its connection with other circumstantial evidence. It is often said that witnesses may lie but not the circumstances. However, the court must adopt a cautious approach while basing its conviction purely on circumstantial evidence. Inference of guilt can be drawn only when all incriminating facts and circumstances are found to be incompatible with the innocence of an accused. In other words, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that, taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. 55. It is trite law that in cases dependent on circumstantial evidence, the inference of guilt can be made if all the incriminating facts and circumstances are incompatible with the innocence of the accused or any other reasonable hypotheses than that of his guilt, and provide a cogent and complete chain of events which leave no reasonable doubt in the judicial mind. When an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. If the combined effect of all the proven facts taken together is conclusive in establishing the guilt of the accused, a conviction would be justified even though any one or more of those facts by itself is not decisive. (Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 (“Sharad Birdhichand Sarda”) as reiterated in Prakash vs. State of Rajasthan (2013) 4 SCC 668 (“Prakash”)). 56. In Kundan Lal Rallaram vs. The Custodian, Evacuee Property Bombay AIR 1961 SC 1316 (“Kundan Lal Rallaram”), this Court speaking though K. Subba Rao, J. observed that the rules of evidence pertaining to burden of proof are embodied in Chapter 7 of the Evidence Act. The phrase “burden of proof” has two meanings :- one, the burden of proof as a matter of law and pleading and the other, the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by opposite party; it may comprise of circumstantial evidence or presumptions of law or fact. Analysis: 57. In the case of B. Jayaraj, the complainant did not support the prosecution case. In P. Satyanarayana Murthy, the complainant had died prior to letting in his evidence in the case. In M. Narasinga Rao, the question was whether a legal presumption could be based on a factual presumption. In Hazari Lal, this Court through O. Chinnappa Reddy, J. observed that it is not necessary that the passing of money should be proved by direct evidence, it could also be proved by circumstantial evidence. Furthermore, in Madhukar Bhaskarrao Joshi vs. State of Maharashtra (2000) 8 SCC 571 (“Madhukar Bhaskarrao Joshi”), it was observed that in order to draw a presumption under Section 20 of the Act, the premise is that there was payment or acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted as a “motive or reward” for doing or forbearing to do any official act. 58. P. Satyanaratana Murthy has been referred to in State vs. Dr. Anup Kumar Srivastava (2017) 15 SCC 560 (“Dr. Anup Kumar Srivastava”) by observing that what constitutes illegal gratification is a question of law; whether on the evidence let in, crime 23 has been committed or not is a question of fact. If, therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established. The court also made observations regarding framing of charge in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. It was also held that proof of demand is an indispensable mandate for the offence under Sections 7 and 13 of the Act. On the facts of the said case, it was held that the same was absent and the accused was liable to be acquitted. 59. In all the cases leading to the reference, it is either the death or the refusal to support the prosecution case that has led to the legal presumption under Section 20 of the Act not being raised and not bringing home the guilt of the accused. 60. Learned ASG and counsel also drew our attention to the following precedents: (i) In the case of State of Andhra Pradesh vs. V. Vasudeva Rao (2004) 9 SCC 319 (“V. Vasudeva Rao”), this Court, in the absence of the complainant due to his death proceeded to convict the accused based on the evidence available on record and further held that for the purpose of reaching a conclusion, the court can rely on factual presumption under section 114 of the Evidence Act. A fact may also be proved by direct testimony or by circumstantial evidence. (ii) In Kishan Chand Mangal, this Court upheld the conviction based on the evidence of the shadow witnesses. Similarly in State of Andhra Pradesh vs. P. Venkateshwarlu (2015) 7 SCC 283 (“P. Venkateshwarlu”), when the complainant died during the pendency of the trial, this Court convicted the accused by relying upon the evidence of the other witnesses, as the factum of demand, acceptance and recovery of the tainted money was proved by the prosecution. (iii) In contradiction to the aforesaid cases, our attention was drawn to Selvaraj vs. State of Karnataka (2015) 10 SCC 230 (“Selvaraj”), wherein on the death of the complainant, acquittal was ordered as the accused was relieved from his duty and was not competent to transact any official business apart from the fact that there was contradiction in the version of witnesses. (iv) In A. Subair, the acquittal was based on the ground that there was no other evidence to fall back upon in the absence of the complainant letting in evidence. 61. Learned senior counsel Shri Aristotle, further contended that in those cases, where the complainant becomes “hostile”, his evidence does not get effaced as the court must consciously ascertain as to what extent he has supported the case of the prosecution. The evidence of a “hostile” witness “complainant” stands on a different footing than the death of the complainant or the non-availability of the complainant. It was submitted that when the complainant turns “hostile”, the evidence of the shadow witness would play a vital role as he can also tender primary evidence with regard to the demand of illegal gratification. Similarly, Nayan Kumar Shivappa Waghmare vs. State of Maharashtra (2015) 11 SCC 213 (“Nayan Kumar Shivappa Waghmare”), was relied upon to buttress the fact that if the complainant turns “hostile”, the conviction is permissible on the basis of presumption and other evidence. On the other hand, in B. Jayaraj the acquittal was based on the fact that the complainant had turned “hostile” and there was no other witness to support the case of the prosecution and hence, there was lack of evidence against the accused. In C.P. Rao, the acquittal was based not merely on the nonavailability of the complainant but the fact that there was previous animosity between the complainant and the accused and also on the ground that money was thrust into the hands of the accused. Similarly, in N. 24 Sunkanna, the accused was acquitted on the ground that the witness had turned “hostile” and the demand was not proved. So also, in the case of M.R. Purushotam. 62. Learned counsel Shri Aristotle also made reference to C.M. Sharma wherein the conviction was upheld even though the shadow witness was not present when the demand for illegal gratification was made and the amount was paid and there was recovery of tainted money. So also, in Prakash Chand vs. State (Delhi Admn.) (1979) 3 SCC 90 (“Prakash Chand”) when the shadow witness turned “hostile”, the conviction was based on the evidence of other witnesses. Therefore, even in the absence of a complainant letting in his evidence or the complainant turning “hostile”, the case of the prosecution would not collapse and the prosecution can only prove the case beyond reasonable doubt if there is other evidence to prove the case. 63. Before answering the question under reference, we deem it necessary to clarify on one aspect of the matter and that is with regard to “hostile witness”. 64. Learned senior counsel Shri Nagamuthu submitted that the expression “hostile witness” must be read in the context of Section 154 of the Evidence Act. Section 154 of the Evidence Act states that the court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. It further states that the Section does not disentitle the person so permitted to rely on any part of the evidence of such witness. For immediate reference, Section 154 of the Evidence Act is extracted as under: “154. Question by party to his own witness.— (1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. (2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.” The said Section was amended with effect from 16.04.2006 and sub-section (2) of Section 154 was added from the said date while the original Section was renumbered as sub-section (1) of Section 154. 65. Learned senior counsel Shri Nagamuthu submitted that when the prosecution examines a witness who does not support the case of the prosecution he cannot be “declared” to be a “hostile witness” and his evidence cannot be discarded as a whole. Although, permission may be given by the Court to such a witness to be cross-examined by the prosecution as per sub-section (2) of Section 154 of the Evidence Act, it is not necessary to declare such a witness as a “hostile witness”. This is because a statement of a “hostile witness” can be examined to the extent that it supports the case of prosecutor. 66. In this regard, our attention was drawn to Sat Paul vs. Delhi Administration (1976) 1 SCC 727 (“Sat Paul”) which is a case arising under the 1947 Act wherein this Court speaking through Sarkaria, J. has made pertinent observations regarding the credibility of a hostile witness. It was observed in paragraph 30 of the judgment that the terms “hostile witness”, “adverse witness”, “unfavourable witness”, “unwilling witness” are all terms of English law. At Common law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. It was observed in paragraph 33 that the rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms “hostile witness” and “unfavourable witness” and by attempting to draw a distinction between the two categories. A “hostile witness” is 25 described as one who is not desirous of telling the truth at the instance of the party calling him, and an “unfavourable witness” is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact. In the context of Sections 142 and 154 of the Evidence Act, this Court observed in paragraphs 38 and 52 as under: “38. To steer clear of the controversy over the meaning of the terms “hostile” witness, “adverse” witness, “unfavourable” witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared “adverse” or “hostile”. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath vs. Prasannamoyi AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of “hostility”. It is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission it is preferable to avoid the use of such expressions, such as “declared hostile”, “declared unfavourable”, the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English courts. 52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.” 67. Therefore, this Court cautioned that even if a witness is treated as “hostile” and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.