As Justice Katju’s 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 Guru’s judgment is heavily dependent on the interpretation of the Evidence Act. Most of the evidences in Guru’s 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 Karnataka’s[(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 Guru’s 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 doesn’t 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 Guru’s 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.