Circumstantial Evidence as a Mitigating Factor

Nidhi Agrawal

Sec. 354(3) of the Code of Criminal Procedure in 1973 introduced the requirement of courts to record “special reasons: for their choice of the death penalty or life imprisonment or imprisonment for a period of time if the offence provided for alternative offences. Rajendra Prasad v. State of Uttar Pradesh provided the first interpretation of “Special Reasons” which led to the establishment of the ‘criminal test’. The criminal test required the court to only focus on the circumstances of the criminal and not the factors of the crime known as Crime Test. Bachan Singh v. State of Punjab conjoined the criminal test with the crime test to shift the focus to a form of principled sentencing peculiar to each unique case before the court which came to be known as the ‘Rarest of the Rare framework’. However, However, while propounding this, the majority in Bachan Singh was cognizant of the arbitrariness that individualized sentencing could have on the Death Penalty jurisprudence. 

Consequently, the focus was on principled sentencing where the determination of aggravating and mitigating circumstances would be not on the basis of a ‘pick and choose’ approach by the judges grounded in their predilections but on an “evolutionary process of judicial precedents”. This meant that the mitigating circumstances would be determined on an individual basis and followed subsequently by courts in their sentencing process in order to avoid arbitrariness in sentencing. The failure of this effort to maintain consistency can be seen through the court’s approach in Macchi Singh v. State of Punjab by creating a ‘balance-sheet approach’ where the criminal test had to be set off against the crime test laying down the framework for aggravating and mitigating circumstances. This ‘balance-sheet’ was explicitly rejected by Bachan Singh by discarding (iv)(a) proposition provided in Jagmohan Singh v. State of U.P., although now this approach forms the status quo. This has led to inevitable inconsistency due to irregular interpretation and application of the R-R framework in subsequent cases.

The analysis of mitigating circumstances, therefore, lies at the heart of the possibility of the reformation of the accused. It allows the judges to provide for more individualized and contextual sentencing rooted in the biological, physiological and historical understanding of the accused’s life. Mitigating Circumstances do not provide a justification for the crime, rather they help the judges assess the culpability of the accused through a nuanced understanding of their socio-economic circumstances and the implication of life experiences on an individual to understand the quantum of punishment to be meted out. Ediga Anamma v. State of A.P and Santa Singh v. State of Punjab have provided some penological justification in considering mitigating circumstances observing that the consideration of the factors individualises the punishment so that “the reformist component is as much operative as the deterrent element”. However, even Bachan Singh failed to provide for this underlying normative understanding of mitigation which allows the judges to arbitrarily hold sentencing factors to be indeterminate.

Whether Circumstantial evidence falls within the scope of Mitigating factors? 

There has been a conflicting jurisprudence with regard to the meting out of the death penalty in light of circumstantial evidence. There are mainly three lines of reasoning that the Indian Jurisprudence has followed: 

A. Circumstantial Evidence (+)

“Circumstantial Evidence (+)” allows for the substitution of the death penalty in the cases of Circumstantial Evidence when there are additional mitigating factors present which are advantageous to the accused. This can be strengthened by Justice Reddy’s dissent in the recent case Ravi v. State of Maharashtra (2019-3J) which highlights the inconsistencies present in the death penalty meted out in cases of circumstantial evidence. He relies on Bishnu Prasad Sinha v. State of Assam, where the court held that circumstantial evidence has to be coupled with other factors advantageous to the convict for subverting a death sentence. 

This means that circumstantial evidence in itself would not be enough as an overruling mitigating factor but there is a requirement for other mitigating factors to be present for subverting the death sentence. It is pertinent to note that this position of “Circumstantial Evidence+” is itself full of inconsistencies. This is because of the ‘pick-and-choose’ approach for the + variable factors that are analysed by the court. 

Although, a similar line of reasoning was adopted in Sebastian @ Chevithiyan v. State of Kerala (2009-2J). This case held that circumstantial evidence along with the young age of the accused served as relevant mitigating circumstances to substitute the death penalty for life imprisonment. There is no clarification with regards to whether the court has to analyse the mitigating circumstances themselves as affirmed in Bachan Singh or whether it is the defence counsel’s duty to present the court with the mitigating circumstances as was held recently in Kushwinder Singh. Therefore, Circumstantial Evidence + Mitigating Factors again depends on judicial discretion which has not been clarified. 

B. Circumstantial Evidence as a Mitigating Factor

The second line of reasoning allows for circumstantial evidence to play the role of a mitigating factor. There is a conflict in how this jurisprudence has evolved. The first line of cases analysed focuses on the use of circumstantial evidence to be a relevant mitigating factor, while the latter focuses on circumstantial evidence to be an overruling mitigating factor. The difference is that the former would be subjected to the “Balance-Test” while the latter would overrule the crime test completely. 

In Swamy Shraddananda v. State of Karnataka, Justice S. B. Sinha held that cases that rely on circumstantial evidence have a far greater likelihood of leading to wrongful convictions than cases grounded in more robust evidence [Para 87]. The court further warned that even ‘seemingly foolproof’ circumstantial evidence should not be considered so, and the presence of circumstantial evidence must remain an important factor in deciding whether a death penalty should be awarded or not. Appreciating the special ‘irrevocable’ nature of the death penalty, the court cautioned against solely relying on circumstantial evidence. 

The Court in Shankar Kisanrao Khade v. State of Maharashtra held circumstantial evidence alone to be a relevant mitigating factor to be considered and was affirmed by Swamy Shraddananda (2) v. State of Karnataka. In Sushil Sharma v. State (NCT of Delhi), the court relied on the use of circumstantial evidence in the sentencing as a factor in order to commute the death sentence to life imprisonment. The Court noted that the case rested largely on circumstantial evidence, which should not be used as the basis to impose the death penalty, regardless of the nature or brutality of the crime. 

The Court also noted the presence of other mitigating factors such as ‘extreme emotional disturbance’ and ‘extreme poverty and low social status’ in order to arrive at its decision to commute the death penalty. Similarly, in Mahesh Dhanaji Shinde v. State of Maharashtra, the court commuted the death penalty of the appellant to a life sentence because the case was based entirely on circumstantial evidence. In contrast to this reasoning, Aloke Nath Dutta and Ors. v. State of West Bengal, held that the death penalty should never be meted out in cases of circumstantial evidence. 

The Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra has also followed a similar position by substituting life imprisonment for the death penalty due to the presence of circumstantial evidence which relied on the testimony of an approver. Therefore, there still remains no clarification on whether circumstantial evidence plays a relevant role in the balancing of mitigating and aggravating circumstances due to the conflicting line of cases from Shankar Khade.

C. Circumstantial Evidence: The Sharad Birdhichand Sarda Test

The most recent and third line of reasoning allows for the death penalty to be given out in cases of circumstantial evidence by following two steps: (i) applying the Sharad Birdhichand Sarda test which laid down a four-prong test for holding an accused guilty in light of circumstantial evidence and (ii) balancing mitigating and aggravating factors. 

The Court in Shivaji v. State of Maharashtra held that circumstantial evidence had no role in the balancing of aggravating and mitigating circumstances and affirmed that the death sentence could be given out in cases with circumstantial evidence. Shivaji held that this would be possible when the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, which forms the foundation for conviction. However, this would have nothing to do with the question of the death sentence. There would be a requirement of balancing the mitigating circumstances and the aggravating circumstances where the fact that the case rests on circumstantial evidence has no role to play. 

“If the said evidence has been found to be credible, cogent and trustworthy for the purpose of recording conviction, to treat that evidence as a mitigating circumstance, would amount to consideration of an irrelevant aspect.” 

Similarly, in Sudam alias Rahul Kaniram Jadhav v. State of Maharashtra, the court held that the court was not precluded from pronouncing a death sentence merely because the cases relied on circumstantial evidence. This position was altered in Ashok Debbarma and subsequent cases, where a “higher standard” of the quality of evidence was deemed necessary in cases where the death penalty was passed. Interestingly, in Mohd. Manan v. State of Bihar, the use of circumstantial evidence due to its impeccable nature was considered sufficient to “tilt the balance of aggravating and mitigating factors” in favour of the petitioner.

This higher standard of scrutiny has been laid down as a four-prong test in the case of Sharad Birdhichand Sarda: 

“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.” 

(1) Consistency of the Hypothesis: The established facts must be consistent only with the guilt of the accused and must not be explainable by any other hypothesis except that the accused is guilty.

(2) Conclusive: The circumstances should be of a conclusive nature and tendency. 

(3) Exclusion: They should exclude every possible hypothesis except the one to be proved. 

(4) Chain of Linkages: There must be a chain of evidence which would not leave out any reasonable ground for the conclusion consistent with the accused’s innocence and must show that in all human probability the act must have been done by the accused.

This test was affirmed to be applicable to the cases of the death penalty with circumstantial evidence by Shatrughan Meshram v. State of Maharashtra. This is in conformity with the Kalu Khan and Dhananjay Chatterjee reasoning, which provides that while dealing with cases based on circumstantial evidence, for the imposition of a death sentence, higher or stricter standards must be insisted upon in matters concerning capital punishment.


Through this piece, I have attempted to chart out the conflicting jurisprudence revolving around the use of circumstantial evidence in the sentencing of the death penalty. I have analysed the three different types of reasoning that have been adopted by the court. The court either uses circumstantial evidence as an overruling mitigating factor, as one of the factors in the balancing test or of no relevance in the balancing with a higher scrutiny standard. The three lines of reasoning delineated above allow for judicial subjectivity which goes against the core of Article 21, a fair and reasonable procedure as laid down in Maneka Gandhi v. Union of India. There is a need for the court to adopt uniform reasoning which would allow for a fair and equitable procedure for sentencing in capital punishment cases.

[This article first appeared on Abhinav Sekhri’s blog, “The Proof of Guilt”]


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