A

s Justice Katjus plea for

Sanjay Dutt against the jail
term awarded to him is being
pleaded to be lessened
ignoring the gravity of the
whole act and the circumstantial/direct
evidences against him, some light needs to
be thrown on the conviction of Afzal Guru
which solely depended on circumstantial
evidence and as many have put, the same
was a grave travesty of justice. At the same
time it is mooted to be not that burlesque.
It is also clamorous to note that Gurus
judgment is heavily dependent on the
interpretation of the Evidence Act. Most of
the evidences in Gurus case were
circumstantial in nature, the most exigent
of which was that Guru knew the terrorists
who attacked the Parliament on that
dreaded day. Reliance has to be made to
Chapter II of the Indian Evidence Act, more
so, if we do not have a parochial approach
to the same, then Section 21, wherein
admission made by person on behalf of the
main executors and Section 114 wherein
the court may presume the existence of
certain facts may form an important source,
but the whole wagon stops at a point
wherein we ask that can the vanguards of
the Indian Judicial system go ahead in
awarding death penalty based on
circumstantial evidence?
Placing reliance on Swamy Shraddhanand
Vs. State of Karnatakas[(2007) 12 SCC 288]
in which the Supreme Court had cleared
some cloud on the same by stating that
there is no such absolute rule that where
conviction is based on circumstantial
evidence, death sentence cannot be
awarded. It is also a point of view that
since the attack was on the highest seat of
the Indian Constitution and was an attack
on the sovereignty, hence it falls in the
category of rarest of rare and even though
Gurus presence in executing the attack is
ruled out by any means, the same may be
clubbed in the rarest of rare category. By
saying so I also do not wish to undermine
the fact that I am against any kind of
retribution or deterrence of such or any
terrorist acts or any criminal activity as
such and I also do not wish to sound to be
only on the reformative side by any means,
but the only relevant question which needs
to be sufficed to, is the cloud regarding
circumstantial evidence, which needs some
fixed guidelines. India doesnt have a
sentencing policy as such unlike some other
countries, like England has the policy of
guideline judgments which is considered
as a judge managed sentencing model
rather than a statute induced one and in
our country each case has to be considered
on its own merit. Any characteristic of trial,
such as conviction solely resting on
circumstantial evidence, which contributes
to the uncertainty in culpability calculus,
must attract negative attention while
deciding maximum penalty. However there
are no universal rule laid down and there
may be cases where even on circumstantial
evidence a death penalty may be obtruded
but the offence must be proved beyond
doubt. In case of only circumstantial
evidence being the backbone of the
prosecution story, the chain of
circumstances also becomes an integral
factor for the dissection of the case. In a
more recent judgment of Sanaullah Khan
Vs. State of Bihar [(2013) 3 SCC 52] the
Supreme Court took a more benign view in
reducing the punishments to life from death
just because the prosecution story was only
based on circumstantial evidence. At the
same time in Gurus case the mere fact that
the Apex court had ruled that in order to
satisfy collective conscience but the same
has to be weighed in consonance with the
settled precedence.
At such a critical juncture wherein the
interpretation forms such a decisive factor,
especially in case of circumstantial
evidence, a more expressive law is needed
to settle such dilemma.
About Author
Cha%an Sarkar i !he Par!ner a! KIAA, LLP. He i alo an
honorar% arbi!ra!or a! !he Willem C Vi In!erna!ional
Commercial Arbi!ra!ion Moo!, Hong Kong. C"rren!l% he i
handling Ci#il/Criminal li!iga!ion and Arbi!ra!ion ma!!er of
KIAA, LLP b"! ha alo made himelf compe!en! and ha
$orked in ci#il and IPR ma!!er.
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A Lex Witness Reader Connect Initiative
special
April 2013 | Lex WITNESS | 31
Concept of Circumstantial Evidence in
the Light of the Judgment of Afzal Guru
Chayan Sarkar
Page 31 Special KIAA_La!ot 1 06-Apr-13 1:07 PM Page 31