Guest Post: Circumstantial Evidence — Time to Reassess the "Panchsheel" Approach?

(This is a guest post by Anam Chowdhary)

A trial more often than not revolves around disputed facts – facts that one side would want to prove and the other would want to disprove. The Indian Evidence Act, 1872 (hereinafter ‘Act’) essentially works in the realm of two categories of facts – facts in issue and relevant facts. While Section 3 of the Act clearly defines these facts, in colloquial terms, it can be stated that facts in issue are those facts which underpin the entire trial, in the sense that if these facts are proved or disproved, the matter in enquiry would come to an end, and liabilities, rights, etc. would be put forth for the parties concerned. As an example, in a trial for murder, the facts of mens rea, actus reus, and causation, would be required to be proved in order to establish the guilt (liability) of the accused and thus these facts would be the facts in issue i.e once proved/disproved would answer the question of guilt or of any other liability or right. Relevant facts on the other hand are such facts which are connected to the facts in issue and when proved/disproved, lead to an inference about the facts in issue. Whether a fact is relevant or not is purely a question of law and has to be decided keeping in mind the instances of relevancy provided in the Act.

Facts are proved / disproved via evidence i.e. the existence / non-existence of facts shown through evidence. Section 5 of the Act makes it clear that the Act envisages evidence to be provided for only Facts in issue and Relevant facts. Thus, it can be stated that a party can provide direct evidence for a fact which is in issue and for a relevant fact. While providing evidence for a fact in issue would help determine the core question of rights or liabilities, evidence would be provided for relevant facts so that these facts would lead to an inference about the existence or non-existence of facts in issue, would prove / disprove the fact in issue. This is where circumstantial evidence enters the discourse of the Indian Evidence Act. By allowing evidence to be provided for relevant facts the Act, though not expressly, paves the way for these facts to become evidence for the facts in issue – these relevant facts then become circumstantial evidence for facts in issue. Thus, circumstantial Evidence can be defined as those unrelated facts (relevant to a facts in issue) which when considered together lead to an inference regarding a fact in issue. Circumstantial evidence can be the basis of conviction, and thus, is an integral part of criminal trials.

In this context, I want to deal with a simple issue that is often discussed: the parameters regulating what courts accept as “circumstantial evidence”. My argument is that the existing threshold, established by the Supreme Court, is flawed as it fails to properly filter out unreliable and irrelevant facts, while building up a chain of inferences towards proving guilt based on circumstantial evidence.

The Panchsheel Test (hereinafter ‘Test’)

The law on convictions based on circumstantial evidence has been put forth by the Supreme Court in form of a‘Panchsheel Test’: 

“(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.

(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.”

The usage of circumstantial evidence is largely based on inferential reasoning (read on) and this test attempts to provide a yardstick for this inference to go in the ‘right direction’. But, the loose wording and the subsequent application of the Test has shown that much of the jurisprudence around circumstantial evidence is still unclear, problematic, and left too susceptible to judicial discretion, as shall be discussed below.

Panchsheel - A Weak Gatekeeper of Facts

On a plain reading of the Test, one can make out that it governs the facts that can become a link in the chain of circumstantial evidence. Point (1) and (3) of the Test hint towards the proposition that the facts that form the basis of inference should be proved. This when read in consonance with the Section 5 of IEA, can be understood to include only relevant facts which have to be proved by evidence. The way courts have applied this Test shows that not much thinking has gone into these basic requirements that the facts must fulfil as the first step — relevancy and then being proved. Time and again irrelevant facts have been included as the links in the chain of circumstantial evidence using the Test, and often such facts have been included which have not been proved properly and can be discarded as ‘not proved’ under Section 3 of IEA. This poses a problem as the Courts can then include everything and anything as a link in the chain of circumstantial evidence which can ultimately prove fatal to the cause of justice.

In State of Uttar Pradesh v Rajesh Talwar, to ‘fill the missing links’ in a case revolving around circumstantial evidence, the trial court considered the denial of the incriminating circumstances by the accused persons under Section 313 of CrPC as a relevant fact whereas the section clearly mentions that false pleas would be used as evidence . By using false pleas as a missing link, the court considered it as a relevant fact when it was never a "fact" in the first place. This shows how facts which are not relevant or are not even facts, are made relevant for the sake of the Test. Another example could be the Priyadarshini Mattoo case, where the court made the mother’s suspicions about the accused relevant under Section 6 of the Act in a very unclear manner even though the fact did not lead to much of an inference about the fact in issue. The dissenting judgement in Sharad Birdichand Sarda [the progenitor of Panchsheel] throws light on the problem of how facts which are not even proved properly enter the realm of circumstantial evidence using the Test. The issue there was whether the husband had murdered his wife by poisoning her. The Court decided that the wife had committed suicide. The dissenting opinion points out how the majority opinion includes facts (like extra-marital affair of the husband, ill-treatment by in-laws, etc. to show why the woman would have committed suicide) which were not even proved, to complete the link in the chain of the circumstantial evidence. It can be said that such inclusion of facts can also be the result of the judge having drawn a conclusion beforehand (in this case, the conclusion that the woman committed suicide) based on the available facts and now trying to fill the missing links in a manner that could support that preconceived conclusion.

Thus the manner in which the Courts have acted in contravention to basic principles of IEA (relevancy and the need for the fact to be proved) to consider a fact as a link in the chain of circumstantial evidence is apparent. If it was not for the links in the chain and satisfying the Test, these facts would not have qualified as relevant facts or facts which are proved.

The Obsession With The ‘Chain Metaphor’

It is quite apparent that the Test lays much emphasis on the completion of a chain by using the facts as the links. This has popularly been called the ‘chain metaphor’ in R v Exall. This metaphor gives importance to the completion of the chain but it is pertinent to mention here that not all cases are links in chain type of cases, some can even be ‘strands in a cable’ cases. The express mention of a chain metaphor in the Test excludes the possibilities of such cases being decided on the basis of circumstantial evidence, where the situation could not be proved by the chain metaphor but by the ‘strands in a cable’ metaphor as explained in the case of R v Exall.

If the Test only foresees the chain metaphor kind of cases, it might seem that for the ultimate inference to be drawn (as inferred from point (2) of the Test), all links must be there which would make the ‘story’ complete. Instead, using ‘strands in a cable’ metaphor would allow for having different facts which may not be links of a chain per se, but could then be considered in total to determine the inference to be drawn. Anyways, the inference has to be drawn not from one line of proof alone but from all the present lines of proofs which would make the whole story incriminating and including only the chain metaphor would be equivalent to narrowing the ambit of circumstantial evidence. Further, looking at the issue practically, the cable logic involves greater judicial discretion than what might be imagined while thinking within the chain logic. If we only limit the discretion to chain the metaphor, then it is more likely than not that for the sake of completion of the chain, bad decisions might be rendered which might be reversed in appeals – the Rajesh Talwar and Sharad Birdichand  are good examples of this. Therefore, usage of the cable metaphor might help to reduce the costs incurred in obtaining appellate reversals.

Having said that, it has to be understood that determining which metaphor applies to which case is not an easy task and sometimes, a case can be an amalgamation of the two metaphors — testimonies of fact would be under the chain metaphor and then other facts can be added to this fact using the cable metaphor. Keeping the issues in mind, it would be prudent that the Test should include not only the chain logic but the cable logic as well, to include every possible situation within the realm of circumstantial evidence and draw proper conclusions from the same.

The Question of Proof Beyond Reasonable Doubt

In Chamberlain v Queen, it was stated that all the constituent facts have to be proved beyond a reasonable doubt and this came to be known as the ‘Chamberlain direction’ which is also followed in India as can be seen in Sathya Narayan v State.

Contrary to this understanding, it is suggested that the Test should state that for the individual facts that make up the links of the chain or the strands of the cable, the standard of proof should be based on the requirements of Section 3 IEA and not necessarily beyond reasonable doubt. When the ultimate inference is to be drawn from the total set of facts and not these individual facts, it does make much sense to subject the individual facts to such a high degree of proof. It does nothing but make the entire situation unreasonably difficult from the side of the prosecution. The ultimate inference which would decide the question of guilt should be an independent stage where it should be necessary to subject the inference to the standard of proof beyond reasonable doubt. As a word of caution, it can be said that nothing much can be proved if each and every detail will have to be proved beyond reasonable doubt. Hence, it should be made clear in the Test that the standard of establishing the individual facts may not necessarily be the standard of beyond a reasonable doubt.

The Judge Judging Too Much – The Problem of Inference

The degree of inferential reasoning involved in circumstantial evidence is problematic as there are no yardsticks mentioned in the Test to judge the parameters of inferences drawn. The ‘Hodge warning’, which discussed the apprehension of conflation of conjecture with inference, has also been taken into consideration by Indian judgements in cases like Hanumant v State of Madhya Pradesh and this substantiates the claim that unchecked inferences can be dangerous.

While it is true that inference is at work even in the case of direct evidence, the journey from evidence to the fact-in-issue is longer in the case of circumstantial evidence, as presented below:

Figure 1:

Figure 2:

The personal biases of judges play a big role in the kind of inferences that they draw from a particular situation. ‘General experience’, ‘common sense’, ‘society’s knowledge’, etc. are all misnomers as basis of this knowledge or experience would vary according to the judge. Why this becomes an issue especially in circumstantial evidence cases is because in such cases the very basis of determining guilt is a story from which an inference has to be drawn and based on such inference that the judge might have already chosen, facts only bolstering these inferences would be allowed. I would argue that this phenomenon can be seen at play in Sharad Birdichand. The majority seems to have already drawn the inference that it was a case of suicide and then went on to infer other facts in light of the inference of suicide. For instance, it was held that the door was not closed from inside because the deceased wanted her husband to come into the room once she had committed suicide. This is nothing but a bootstrapping technique at play. The problem of inference in this case did not begin here actually, the very understanding of the facts have taken place from a dominantly male perspective which impacted the manner in which rest of the facts were understood as links in the chain of circumstantial evidence for suicide.

Conclusion

The issues mentioned above show that the Panchsheel test is in need of a revamp to set a definite standard to be used in cases of circumstantial evidence. The Test can be modified into its simpler yet more definite version as follows:

1. The circumstances (facts) from which the guilt is to be drawn should be relevant to the fact in issue, under Chapter II of the IEA, 1872;
2. Such facts must be proved using admissible evidence;
3. The standard of proof of such facts should be as per Section 3 of the IEA, 1872;
4. Depending upon the case in hand, the facts can make up links in the chain of circumstantial evidence or could act as strands in the final cable of circumstantial evidence, and;
5. The inference derived from the cumulative effect of the above mentioned facts must be such that it only leads to the inference of the inference of the guilt of the accused and does not leave any reasonable ground for an alternative hypothesis of the innocence of the accused.

It is true that such redefining of the Test still does not deal with the problem of inferences but the same can be regulated to some extent if the facts that are introduced as the links in the chain or strands in the cable are relevant and proved as required by the IEA. This would at least ensure that such facts enter the realm of circumstantial evidence, which are not randomly accepted by the judge. In any circumstance it cannot be said with certainty that inferences can be regulated. But there could certainly be systemic efforts to try and reduce the impact of biases on decision-making, bolstering the existing training for judges that already takes place. The need for it cannot be over-emphasised — for in several of these cases, a person's liberty is at stake.