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The term ‘circumstantial evidence’ was first used by Sir James Stephen, stating circumstantial evidence to be facts that are relevant to the other fact, whose existence can prove by the existence of other fact. A ‘circumstantial evidence’ is the testimony of a witness to other relevant facts from which the fact in issue may be inferred. There must be a chain of independent evidence as complete and unbroken as to show that, within all human probability, the act must have been done by the accused. ‘Circumstantial evidence’ includes all the relevant facts. It is not secondary evidence; it is merely direct evidence applied indirectly.

The concept of circumstantial evidence has evolved through the interplay between statutes and judicial interpretation. Circumstantial evidence, also known as indirect evidence, is an unrelated chain of events which when put together formulates circumstances leading to the commission of the crime and can be used to derive a conclusion. Information pertaining to the said chain of events in civil or criminal cases establishes the existence of a fact or any assertion a party seeks to prove. Circumstantial evidence is supported by a significant amount of corroboration.

For example: - If police retrieves stolen goods from the house of a suspect, although it establishes that the suspect has stolen the good but does not necessarily establish guilty or the fact that he must have stolen the goods. Recovery of goods in the house of a suspect is a circumstantial evidence as the goods might be placed there by someone else, thus not establishing complete guilt but forming a chain of events. This would shift the burden of proof on the suspect to establish his innocence.

Circumstantial evidence can be sole basis for a conviction, if circumstances establish the chain of events leading to the guilt of the accused and commission of the crime without other possibilities. The Court should be satisfied that the said circumstances were clearly establishes and complete the chain of events and prove the guilt of the accused beyond reasonable doubt. Moreover, all the circumstances should indicate towards the guilt of the accused and should be inconsistent with his innocence.

The onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defense or plea. The chain of events or circumstances should be complete without gaps to the extent no other conclusion or inference apart from the guilt of the accused can be drawn.

However circumstances leading to “last seen together”, does not necessarily imply that it was the accused who has committed the crime. If the circumstances are limited to just “last seen together” without further corroboration, conviction cannot be based on the said assertion. The doctrine of “last seen together” shifts the onus onto the accused to establish his innocence. Thus, last seen together is not a conclusive proof establishing guilt, it is imperative to look at surrounding circumstances such as victim relationship, history of hostility, weapon recovery, relationship between the victim and the accused among others. The proximity between the time of death and last seen together is essential to conclude that the accused and deceased were last seen together without the probability of other persons coming in between exists.

In this case the Supreme Court gave following principles, which are known as 'Panch Sheel' of the proof of a case based on circumstantial evidence.

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
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.

Judgment delivered on 26th November, 2013.

The accused Dr. Rajesh Talwar and Dr. Nupur Talwar was convicted under Section 302 read with Section 34 and Section 201 read with Section 34 I.P.C by Session Court. Dr. Rajesh Talwar was also convicted under Section 203 I.P.C on the basis of circumstantial evidence. Later, Couple Talwar was acquitted by Allahabad High Court in year 2017.

The following circumstances, according to the Judge unerringly pointing out to the guilt of the accused and exclude every possible hypothesis on the innocence of the accused:

1. That irrefragably on the fateful night of May 15 and 16, 2008 both the accused were last seen with both the deceased in Flat No. L-32, Jalvayu Vihar at about 9.30 P.M. by Umesh Sharma, the driver of Rajesh Talwar;
2. That on the morning of May 16, 2008 at about 6.00 A.M. Aarushi was found murdered in her bed-room which was adjacent to the bedroom of the accused and there was only partition wall between two bed-rooms;
3. That the dead body of the servant Hemraj was found lying in the pool of blood on the terrace of flat no. L-32, Jalvayu Vihar on May 17, 2008 and the door of terrace was found locked from inside;
4. That there is a close proximity between the point of time when both the accused and the deceased persons were last seen together alive and the deceased were murdered in the intervening night of May 15 and 16, 2008 and as such the time is so small that possibility of any other person(s) other than the accused being the authors of the crime becomes impossible;
5. That the door of Aarushi's bed-room was fitted with automatic click-shut lock. Mahesh Kumar Mishra, the then S.P. (City), NOIDA has deposed that when he talked to Rajesh Talwar on May 16, 2008 in the morning, he had told him that in the preceding night at about 11.30 P.M. he had gone to sleep with the key after locking the door of Aarushi's bed-room from outside. Both the accused have admitted that door of Aarushi's bed-room was having automatic-clickshut lock like that of a hotel, which could not be opened from outside without key but could be opened from inside without key. No explanation has been offered by the accused as to how the lock of Aarushi's room was opened and by whom.
6. That the internet remained active in the night of the gory incident suggesting that at least one of the accused remained awake;
7. That there is nothing to show that an outsider(s) came inside the house in the said night after 9.30 P.M.;
8. That there was no disruption in the supply of electricity in that night;
9. That no person was seen loitering near the flats in suspicious circumstances during that night;
10. That there is no evidence of forcible entry of any outsider(s) in the flat in the night of occurrence;
11. That there is no evidence of any larcenous act in the flat;
12. That in the morning of May 16, 2008 when the maid came to the flat for the purpose of cleaning and mopping, a false pretext was made by Nupur Talwar that door might have been locked from outside by the servant Hemraj although it was not locked or latched from outside;
13. That the house maid Bharti Mandal has nowhere stated that when she came inside the flat both the accused were found weeping;
14. That from the testimony of Bharti Mandal it is manifestly clear that when she reached the flat and talked to Nupur Talwar then at that time she had not complained about the murder of her daughter and rather she told the maid deliberately that Hemraj might have gone to fetch milk from Mother dairy after locking the wooden door from outside. This lack of spontaneity is relevant under section 8 of the Evidence Act;
15. That the clothes of both the accused were not found soaked with blood. It is highly unnatural that parents of deceased Aarushi will not cling to and hug her on seeing her murdered;
16. That no outsider(s) will dare to take Hemraj to the terrace in severely injured condition and thereafter search out a lock to be placed in the door of the terrace;
17. That it is not possible that an outsider(s) after committing the murders will muster courage to take Scotch whisky knowing that the parents of the deceased Aarushi are in the nearby room and his top priority will be to run away from the crime scene immediately.
18. That no outsider(s) will bother to take the body of Hemraj to the terrace. Moreover, a single person cannot take the body to the terrace;
19. That the door of the terrace was never locked prior to the occurrence but it was found locked in the morning of May 16, 2008 and the accused did not give the key of the lock to the police despite being asked to give the same;
20. That the accused have taken plea in the statements under section 313 Cr.P.C. that about 8-10 days before the occurrence painting of cluster had started and the navvies used to take water from water tank placed on the terrace of the flat and then Hemraj had started locking the door of the terrace and the key of that lock remained with him. If it was so then it was not easily possible for an outsider to find out the key of the lock of terrace door;
21. That if an outsider(s) may have committed the crime in question after locking the door of terrace and had gone out of the flat then the outer most mesh door or middle mesh door must have been found latched from outside;
22. That the motive of commission of the crime has been established;
23. That it is not possible that after commission of the crime an outsider(s) will dress-up the crime scene;
24. That golf-club No.5 was thrown in the loft after commission of the crime and the same was produced after many months by the accused Rajesh Talwar;
25. That pattern of head and neck injuries of both the accused persons are almost similar in nature and can be caused by golf-club and scalpel respectively; and
26. That the accused Rajesh Talwar was a member of the Golf-Club NOIDA and golf- clubs were produced by him before the CBI and scalpel is used by the dentists and both the accused are dentists by profession.

In this case, court awarded accused life imprisonment for the murder of Jessica Lal, on the grounds of circumstantial evidence. The conduct of the accused after the incident (absconding), ballistic report, presence at the scene of crime established by various testimonies and the circumstantial evidence connecting the vehicle and the cartridges during the commission of crime formed a chain of impenetrable evidence pointing towards the guilt of the accused.

Judgment delivered in February 2019. In this case, Supreme Court held that the inability of the prosecution to establish motive in a case of circumstantial evidence is not always fatal to the prosecution case.

The appellant before the SC was a police officer, who was convicted under Section 302 IPC for murder, on the basis of circumstantial evidence. It was argued on behalf of the motive assumes great significance in a case of circumstantial evidence, and the prosecution's failure to establish it affects the case. The Court noted that there was testimony to the effect that the deceased was last seen in the company of the accused. Further, the bullet recovered from the dead body matched with the service revolver of the accused.

The bench of Justices A M Khanwilkar and K M Joseph held so while dismissing a criminal appeal.

“We would think that while it is true that if the prosecution establishes a motive for the accused to commit a crime it will undoubtedly strengthen the prosecution version based on circumstantial evidence, but that is far cry from saying that the absence of a motive for the commission of the crime by the accused will irrespective of other material available before the court by way of circumstantial evidence be fatal to the prosecution”.

On the basis of forensic evidence the Court also observed

“The only inevitable conclusion we can reach is that the gun was recovered from him and the bullet which has been found to have caused the fatal injury to the deceased and which was recovered from the body of the deceased has been fired from the appellant's gun”.

The defence of the appellant that his service revolver was surrendered during the relevant time as he was under suspension was not accepted by the bench, as he had not produced evidence of suspension, except making a statement during Section 313 examination.

• Adv. Abhishek Gupta (Natraj Legal Solutions)
• Delhi High Court
• Ph: 9999052336,8700521407
• E-mail: adv.abhishek3995@gmail.com