CIRCUMSTANTIAL EVIDENCE: A Critical Analysis of its Test

by | Jul 26, 2020 | Criminal Law, Evidence | 0 comments


Circumstantial evidence has always been regarded with profound skepticism by the layman, however, it has gone on to become increasingly acceptable in law through history.  Unlike direct evidence, circumstantial evidence is not exactly evidence, instead more of a logical deduction of ‘what must have happened’ based on unrelated facts, which when looked upon from a holistic point lead us to a certain conclusion of factual events. However, such an explanation sparks a doubt in the mind that how could the conclusion be absolutely certain. Of course, what circumstantial evidence actually gives us is an extremely high probability of the event taking place, but never ‘positively’ the confirmation of it. This core issue of circumstantial evidence makes it an evil necessity, which nevertheless needs to be adopted as the primary norm for evidence.

The International Standard

Before delving into how domestic law views circumstantial evidence, let us take a look at the international forum. The International Court of Justice puts less importance upon circumstantial evidence, nonetheless, its methods are fairly developed. The court usually ventures into circumstantial evidence only when one of the parties has “exclusive control of the evidence and the other party or the court cannot furnish any contradictory evidence”. Even then the court puts a standard of proof beyond reasonable doubt for findings. However, unlike domestic courts, the International Court of Justice does not have the power to compel the production of evidence in the court. Additionally, a Sovereign retains the right to keep evidence confidential (e.g. State secrets). In this regard the Court does “not permit a party to rely on circumstantial evidence just because the other party is keeping evidence confidential”. As a result, the court puts more weight on direct evidence, also an indirect way to force out evidence. The domestic evidentiary laws of a sovereign do not deal with such issues; hence they take a very different route with respect to circumstantial evidence.

Early View of the Courts

In the case of The Queen v. Mussamut Itwarya, The court had enough circumstantial evidence to conclude conviction of the accused. However, the court seemed quite hesitant on basing the conviction on the basis of circumstances alone. The court instead opted to find inaccuracy in the surrounding facts on probability of them being wrong, allowing them to find contradictions; The accused was let go. Although there was no precedent or law barring a conviction based purely on circumstantial evidence, the courts in the 1800’s seemed to admittedly hesitate a little to convict without positive evidence. Even though the judgement is at par with the tests and standards followed today, the courts today function more systematically, and such hesitation is not evident in their tone of writing.

At a superficial glance, this presumption of the courts appears reasonable, of believing hard evidence more than a probable story. Unfortunately, such a practice is a fallacy in reasoning. “In most cases of circumstantial evidence there is a possibility that the prisoner may be innocent, the same often holds in cases of direct evidence, where witnesses may err as to the identity of a person, or corruptly falsify” their testimony. In contrast Circumstantial evidence is based on logic derived from factual forensic or digital evidence. In this regard, it cannot be held in low estimation on the basis of it being conjectures.

On a deeper analysis, it becomes evident that more times than often, “circumstantial evidence is often more reliable and positive than direct proof. Capital crimes are so rarely committed under circumstances which lead to positive unequivocal evidence of them, that presumptions are necessarily founded upon the connection with certain facts”. The direct evidence in majority of serious criminal cases is so little that if the court were not to rely on circumstantial evidence, the whole process of adjudication would become infructuous. The courts themselves have not been in complete vanity from this fact. Soon after Independence, the judiciary became much active than before.

Post Independance Developments

In the 1951 case of Rameshwar v. State of Rajasthan, The court identified the necessity of establishing certain guidelines to be adhered while deciding on a conviction based on circumstantial evidence. This was a case of a rape of an eight-year-old where the Supreme court upheld the High court’s conviction based on Circumstantial Evidence by holding: –

1. The self-sufficiency of independent evidences to sustain conviction is not necessary. “Some additional evidence rendering it probable…” i.e. tying the story together “…is reasonable safe to act upon”

2. The Independent evidence must reasonably create a connection between the accused and the complainant’s testimony. The purpose here is to tie the accused to the story.

3. “The corroboration must come from independent sources… testimony of one accomplice would not be sufficient to corroborate that of another”. The aim is to address false testimony and more people proving different parts of the story will be more preferable.

4. “The corroboration need not be direct evidence… It is sufficient if it is merely circumstantial evidence” of the accused’s connection to the crime. The purpose of this was to avoid injustice in cases where the offence has been committed in secret, usually offences with females or children as in this case.

The court while establishing these guidelines also stated that the judge must act in a prudential manner and it is upon them to be satisfied that the guidelines have been followed to lead it to conviction.

A couple of years later, the Supreme court in US took a similar stance. In Holland v. United States, the court opined that “circumstantial evidence (was) intrinsically no different from testimonial evidence”. The court acknowledges that circumstantial evidence may lead to false convictions but asserts that so can testimonial evidence. An interesting point which the judge makes is that a case based solely on circumstantial inferences and estimations wholly, depends upon reasonable explanations of such circumstances provided by the defence. It is upon the jury to decide by weighing the probabilities, and if they are certain beyond reasonable doubt to give a verdict of conviction.

While the Indian judgement provides guidance to look at Independent evidences from a more rational and efficient way, The US judgement simply outlines a defence to circumstantial evidence which was already in practice, although it did form a basis for future improvements. The real issue here is that both of the judgements rely on the prudence of the judges and their personal experience to provide a healthy judgement. In practicality instead of applying true rationality in deciding the fate of a person, circumstantial evidence relies upon the judiciary’s ability to imagine such scenario presented. The case becomes less about the probability of the events taking place, and more about whether the judge’s personal experience allow him to believe the story.

Kevin Heller talks about the “Wells Effect that indicates jurors’ willingness to acquit in a criminal case is determined by their ability to imagine a scenario in which the defendant is factually innocent. jury’s decision-making is based on the “simulation heuristic”-a cognitive mechanism individuals often employ to determine the probability of uncertain events.” It suggest that a person is not really convinced about happening of an event until they “feel confident in their gut” about the event. Since the odds are high in a criminal trial, the jurors trust their gut feeling more than ever which leads to “the paradox of circumstantial evidence”. Even when the judiciary knows that objectively the circumstantial evidence is enough to prove the defendant’s guilt, they are likely to acquit if they do not feel confident from the inside, and vice versa. The pressure of the decision and its effect on other people’s lives is a major contributing factor to the Wells effect.

The two judgements neither commented on the efficacy of the Independent evidence considered together, nor did it guide the judge’s modus operandi while considering circumstantial evidence. The 2002 case of Anil Kumar Singh v. State of Bihar made great strides in addressing these issues.

The case was a landmark in redefining the necessary requirements in conviction based on circumstantial evidence, which are relevant till date. In this case, previous conviction for a murder was set aside based on the new guidelines. The court held that “in order to base a conviction on circumstantial evidence –

1. Every piece of incriminating circumstance must be clearly established by reliable and clinching evidence.

2. The circumstance so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused.

3. The circumstances cannot be explained on any hypothesis other than the guilt of the accused.

4. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof. (Also held in Holland v. United States)

The judgement in theory fixes all the loopholes and goes on to provide an ironclad test for circumstantial evidence when read with the 1952 judgement (Rameshwar v. State of Rajasthan)

The Psychoanalytical Argument

A criminal conviction requires the presence of actus reus as well as mens rea. Traditionally Circumstantial evidence provides the motive and the mens rea in cases where direct evidence is present. However, in cases where conviction is being based only on circumstantial evidence, its primary function becomes that of proving the actus reus. Additionally, even though mens rea remains an essential principle, the judiciary have failed to address it explicitly in the guidelines time and again. The guideline instead of stating guilt singularly, should mention that the circumstantial evidence proves both the act as well as the intention of said act.

The previous hesitations about it being a non-positive evidence were silenced as the judgement did not allow for conviction if there was any reasonable doubt within the story. It forms upon the reasonable explanation stance of Holland v. United States and goes further to bar conviction if any conclusion other than guilt can be produced from the events. It becomes essential that no exculpatory evidence is presented that clashes with the story at any point.  The more important takeaway though remains the guidance to the thought process of decision making for the judges. Moral conviction(belief) which practically formed half the test for conviction was held to not be proof at all. The judges were no longer to use their subjective conscious for assessment, but instead rely completely on the rational and probable side of things.

The probing issue that still remains is the judiciary’s trust upon direct evidence as compared to circumstantial evidence. What the judiciary fails to recognise is that circumstantial evidence, when guidelines are followed, provide a more probable portrayal of chain of events than the ones created by direct evidence ever could. Occam’s razor would suggest that jurors simply underestimate the level of objectivity that circumstantial evidence offers by basing its reliance on deductive logic from DNA matches, fingerprint comparisons, and other forensic evidence as compared to human testimonies and memory in determining the probability of the defendant’s guilt. Till date circumstantial evidence fails if contradictory direct evidence is presented.

It is of importance that while considering every evidentiary item, we consider two things: –

  1. The probability of the defendant being guilty if the evidence turns out to be true.
  2. The probability of the evidence itself being true.

If the court were to consider these tests and acknowledge the purpose of taking in evidence for a trial in the first place, it will find that circumstantial evidence provides much more reliable evidence, which has a high probative value. It is again the human telling the story as part of a testimonial evidence that makes the judge and the jury believe the story more, and the subjective belief that is guiding the decision with respect to direct evidence as well.


Now since we understand that in the end the judiciary has to work on the basis of their belief and morals, all we can do is to select the system with produces more rational outputs and modify the system to make it more rational. The fact that law for circumstantial evidence includes guidelines which demotivate the judge to lay convictions or do otherwise on the basis of ‘gut feeling’ and rely more on probative value of the evidence so produced, makes it a more preferable form of evidence than direct evidence.

In this regard instead of simply discrediting circumstantial evidence when in contradiction to direct evidence, the judiciary should put both the evidences through a greater form of scrutiny, and then decide which of the evidence present a truer picture of the facts based on other proven evidences.

Human emotion is a strong force, and more than often humans act foolishly for noble purposes and create false evidences. Although in recent years there has been a trend of considering the testimony and leaving the emotion out of it while considering the evidence; however, the jury too is human and the trust it puts in another human can never be undone, it is one of the imperfections of being a human. What we can do nevertheless, is keep on modifying the justice system so that such imperfections do not form the part of trial proceedings.

Preferred Citation: Burman, Abhipriy., “Circumstantial Evidence: A Critical Analysis of its Test”, The Law Culture 2020

Abhipriy Burman

Abhipriy Burman

Author Profile

Abhipriy is a Managing Editor at The Law Culture. 

He is a fourth year student at Jindal Global Law School. He is primarily interested in Company law, IPR & Cyber laws



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