Circumstantial Evidence And The Principle Of ‘Last Seen Theory And Motive’

Rajib Deb : 

There is a wise saying that “Men may tell a lie, women may a tell lie, but circumstances do not tell a lie.” The Circumstantial Evidence is hallmark of criminal jurisprudence system in absence of eye witness during the commission of an offence. It plays a judicious role in the assessment of evidence and invites the unwarranted facts to be considered as ground of; either conviction or acquittal. To be mentioned, by virtue of long run principle “justice, equity and good conscience”, a new concept in regard to circumstantial evidence namely “last seen theory and motive” has been developed in the evidence assessment history.

Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact. It is evidence of circumstances which can be relied upon not as proving a fact directly but instead a point to its existence. For example – the fact that prior threats made to the victim; fingerprints found at the scene of the crime; testimony that a neighbour saw the accused in the neighborhood; the fact that the accused was the beneficiary of the victim’s life insurance policy; the accused was found with a large amount of money without being able to give any reason; forensic evidence supplied by an expert are all the instances of circumstantial evidence.

To go into deepest meaning of circumstantial evidence and to know what its characteristics is, what the conditions and ingredients are to apply this principle and what the last seen theory and motive is, I have travelled the domestic laws as well as the judgments pronounced by the Indian and Bangladesh Supreme court. At the travelling of the domestic enactments, I find that though Evidence Act, 1872 doesn’t prescribe any formal definition of circumstantial fact but section from sec 5 to 16, sec 32(1) provide the access and gateway as to how and when circumstantial evidence may be given in evidence because Chapter II; from sec 5 to 16 of this Act say about “Of the relevancy of facts” and sec 32(1) says about “When it relates to cause of death”. At the travelling of Indian Supreme court judgments and orders made in Sharad Birdhi Chand Sarda vs State Of Maharashtra (1985 SCR(1) 88), Hanumant Vs State of M.P. [1953] SCR 1091, Rameshbhai Chandubhai Rathod vs State Of Gujarat, Criminal Appeal No.- 575 of 2007 which refers to Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (ChapterVI), Ramreddy Rajeshkhanna Reddy & Anr vs State Of Andhra Pradesh, Appeal (Crl.)-997 of 2005, Anil Kumar Singh v. State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P. (2005) 7 SCC 603, I find that all these judgments and orders have highlighted the characteristics, conditions, ingredients of circumstantial evidence and set the principle of ” last seen theory and motive”. Again at the travelling of Bangladesh Supreme Court judgments and orders made in Sayed Sajjad Mainuddin Hasan vs state recorded in 70 DLR AD 2018, I also find that the apex court took the view that the prosecution has to prove that occurrence as thereby brought into the form of allegation must be the result of circumstantial evidence as thereby relied upon.

Having a careful regard to the domestic enactments as well as judicial pronouncements as thereby mentioned, the characteristics, conditions and ingredients of circumstantial evidence may be summarized as follows –

Characteristics – (a) This type of evidence is sometimes referred to as “indirect evidence,” (b) it may have more than one explanation or lead to more than one conclusion. (c) It is to some extent proof of facts offered as evidence from which other facts may be inferred. (d) It can be sole evidence for conviction. (e) Testimony can be direct evidence or it can be circumstantial. (f) Circumstantial evidence allows a trier of fact to infer that a fact exists.

Conditions and ingredients – All facts and circumstances in regard to pre and post sequences of fact in issue don’t necessarily form the conditions and ingredients of circumstantial evidence. Upon a strong travelling of judicial decisions in regard to circumstantial evidences, I find that before a case against an accused vesting on circumstantial evidence can be said to be fully established there must have reasonable explanation, reasonable doubt and beyond reasonable doubt.

The “last-seen theory” and “Motive” forms important ingredient of the circumstantial evidence. This theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible and in such a case courts should look for some corroboration. (State Of U.P vs Satish, Appeal (crl.) 256-257 of 2005).

The Indian Supreme Court has laid down various guidelines from time to time for its application for conviction – (a) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (b) The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (c) The circumstances should be of a conclusive nature and tendency; (d) They should exclude every possible; hypothesis except the one to be proved and (e) 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.

In our country, the most recent and discussed case on circumstantial evidence popularly known as Shajneen murder case (daughter of Transcom group chairman Latifur Rahman) recorded in 70 DLR 2018 (April, 2018 issue), where the trial court relying upon the circumstantial evidence has convicted all the rest four co- accused of death penalty which has been affirmed by the High court Division also. Upon jail appeal by the principle accused and criminal appeal by the four co-accused, the Appellate Division took the view that both the trial court and the High Court Division committed error in convicting the rest four co- accused relying upon the circumstantial evidence. Because the trial court considered the “birth room incident” as circumstantial evidence as alleged by the prosecution that one of the four co-accused made conspiracy to the principle accused Shahid to hatch the rape and murder of the victim. But the Appellate Division took the view that since “birth room incident” has been disclosed at the belated stage which appears not to be true, genuine and its credibility of the story has been in question, this Division relying upon sec 32(1) of Evidence Act, 1872 took opined that the prosecution failed to prove that the rape and murder was the result of the so called “birth room incident” and both the trial court and the High Court Division committed error in considering “birth room incident” as circumstantial evidence and accordingly this Division didn’t accept the circumstantial evidence and acquitted all the rest four co-accused. To be mentioned, the Appellate Division upheld the death penalty of the principle accused, Shahid.

Writer:  Judicial Magistrate, Senior Judicial Magistrate Court, Cox’s Bazar.