In a criminal trial, the prosecution tries to prove the guilt of the accused and presents Inculpatory evidence which can potentially secure the conviction of the accused beyond reasonable doubt. ‘Inculpatory evidence’ refers to the evidence that proves the guilt of the accused.
Whereas, the job of the defense is to create doubt in the mind of the Judge regarding the guilt of the accused.
It is one of the cardinal principles of Criminal Jurisprudence that an accused is assumed to be innocent until proven Guilty. Hence, the accused does not need to prove his/her innocence. He only needs to have the preponderance of probability in his favor by casting a doubt on his guilt. Since, the fate of a criminal trial is based on proving the guilt of the accused, prosecution stresses on the Inculpatory evidence. However, there is a type of evidence in a criminal trial which has the potential to exonerate the accused from the guilt. Such type of evidence is called ‘Exculpatory Evidence’. Exculpatory evidence is the evidence which helps the defense by creating that very doubt in the mind of the court or proves innocence of the accused, though such proof of innocence is not mandatory.
The Evidence Act, the principal legislation dealing in Types of evidence and their proof, does not define the term ‘Exculpatory’. However, the meaning can be derived from the term defined in various Legal Dictionaries. Black’s law dictionary defines Exculpatory evidence as “Evidence tending to establish a criminal defendant’s innocence”1. The word ‘exculpate’ has the meaning of ‘to free from blame or accusation’. The evidence which can potentially result in these outcomes can be termed as ‘exculpatory 2.
JUDICIAL TREATMENT TOWARDS DIFFERENT KINDS OF EXCULPATORY EVIDENCES
The statements given by the accused can be inculpatory (Self harming) or exculpatory (Self-serving). Sometimes, they also can be a mixture of both. For e.g. A admits that he killed B in self-defense.
Here, killing B is inculpatory but killing in self-defense is exculpatory.
It was decided in the case of Pakala Narayan Swami v. Emperor3 that self-exculpatory statement cannot amount to confession. Further, in case of Palvinder Kaur v. State of Punjab4, Supreme court held that if a statement given by an accused contains exculpatory as well as inculpatory elements, the entire statement as a whole should be considered as confession or it should be rejected. Selective consideration of inculpatory statements as confession and ignorance of exculpatory statements is not allowed.
However, this view was altered by the Supreme Court in the case of Nishi Kant Jha v. State of Bihar5. In this case, the court held that if the exculpatory part of the statement/ admission is inconsistent with the circumstantial evidence, then the exculpatory part will be rejected and the remaining inculpatory part will be considered as Confession to prove the accused's guilt.
It is a defense used where the accused claims to be somewhere else during the commission of crime. It is generally proved with the testimony of witnesses in the court. However, testimony by the defendant's friends or family may weaken the case for the defendant .
The judge might wonder if these people would willingly lie for the defendant. A testimony by a witness who is not close to or unknown to the defendant can be strong exculpatory evidence. CCTV/ Video footage, GPS records, phone records etc. are strongest alibis which are exculpatory in nature. However, the courts have cautioned the defense against relying on this type of Exculpatory evidence. One of the notable judgments is Nirmal Singh v. State of Haryana6. In this case, the high court had called alibi a ‘double edged weapon’. Because, if the accused fails to prove his presence elsewhere, his presence at the crime scene cannot be ruled out. Also, it tilts the case against the accused as a failed alibi can be seen as an act of hiding and lying about the whereabouts of the accused. However, the court clarified that, failed alibi does not automatically mean conviction as the burden of proof is still on the Prosecution.
DUTY OF PROSECUTION
In common law jurisdictions, a prosecutor’s role is not limited to securing convictions but it extends to bringing forward all the material evidence including the ones that fall in favor of the accused.
In the case of Sandeep Kumar Bafna v. State of Maharashtra7, the Supreme Court had held that, the public prosecutor is not expected to show thirst for conviction of the accused irrespective of the facts of the case. He should be fair towards the accused. Also, the concept of ‘fair trial’ which is the backbone of Natural Justice, underlines the principles of Knowledge of the accusation and providing adequate opportunity to the accused to defend themselves. As a result, the prosecution is bound to disclose all the charges, evidence against the accused to him including the evidence that may be exculpatory.
This has been reiterated in the Jurisprudence of the USA under the name of ‘Brady material’ after the precedent of Brady v. Maryland8. In this case, the petitioner and his companion named Boblit were convicted of Murder and sentenced to death. Petitioner admitted that he was involved in the murder but the actual crime was committed by his companion Boblit. His counsel requested for all material evidence from prosecution including the statement of Boblit. Boblit confessed to the actual killing.
This statement was exculpatory in nature for the petitioner Brady, which was not provided to him. The court held that this amounted to suppression of Exculpatory evidence with the motivation of securing conviction of the petitioner anyhow and hence termed it as violation of the rights of accused as well as due process.
In the case of Ashutosh Verma v. CBI9, Delhi high court had held that, prosecution cannot pick and choose evidence and the accused must be supplied with those materials which supports his case and are ignored by prosecution. In the case of Jitendra Kumar @ Ajju v. State (NCT of Delhi)10, Delhi high court had focused on impartiality of the public prosecutor who needs to respect the rights of the accused.
In short, the jurisprudence is clear that, while securing the conviction of the accused is the primary duty of the prosecution, he cannot be biased and needs to put all the evidence, irrespective of it being inculpatory or exculpatory, on the table. However, he may choose to ignore exculpatory evidence. Nevertheless, it is his duty to provide exculpatory evidence to the accused to equip him to defend himself. Suppression of Exculpatory evidence is not an option even though this evidence may weaken the prosecution’s case.
EFFECT OF SUPPRESSION OF EXCULPATORY EVIDENCE
Suppression of exculpatory evidence leads to failure of justice. As mentioned earlier, suppression of evidence beneficial to the accused cripples the chance to prove himself innocent. Such trials cannot be called ‘fair trials’. As a result, justice is not served.
If the defense claims that there has been suppression of exculpatory evidence from the prosecution 's side, the burden of proof of the same lies on the defense. It is very difficult to prove suppressed evidence in the court for the obvious reason of it being suppressed or in some cases even destroyed. However, if the defense succeeds in proving that, evidence which could have proved or aided in proving the accused innocent is suppressed by the prosecution or investigating agencies, it may lead to reversal of conviction of the accused, dismissal of case or an order of a fresh trial depending on the nature and gravity of the suppressed evidence.
In a landmark case of Nitya Dharmananda v. Gopal Sheelum Reddy11, Supreme court paved way for accepting evidence off the police records/ charge sheet at a later stage in case it is satisfied that such material is of sterling quality which was suppressed or withheld by the prosecutor or investigator. Thus, such suppressed evidence could be examined by the court even though it is off the police grid or was not paid attention to by the prosecution while proving their claims.
The criminal law, from the very beginning, is already favorable for the accused as it assumes innocence of the accused until proven guilty and requires a higher standard of proof which proves the guilt of the accused beyond reasonable doubt.
Naturally, this puts prosecution at a disadvantage and hence they tend to stress on inculpatory material and ignore material having exculpatory tendencies. Procuring and proving exculpatory evidence is, rather, a difficult phenomenon as it shifts the onus of proof on the accused and also demands the quality of the evidence to be of Sterling quality. However, it is necessary to understand these concepts as suppression of exculpatory evidence leads to failure of justice and if proven, it serves as the best kind of defense for the accused.
1. Black’s Law Dictionary, 8th Ed., 2004, Pg. 1680
2. Ibid, Pg. 1710
3. AIR 1939 PC 47
4. AIR 1952 SC 354
5. (1959) SCR 1033
7. AIR 2014 SC 1745
8. 373 U.S. 83 (1963)
9. 2014 SCC OnLine 6931
10. 2000 (53) DRJ 707
11. 2017 SCC OnLine SC 1430
1. The Indian Evidence Act, 1872
2. The Code of Criminal Procedure, 1973
3. Indian Penal Code, 1860
1. Pakala Narayana Swami v. Emperor, AIR 1939 PC 47
2. Palvinder Kaur v. State of Punjab, AIR 1952 SC 354
3. Nishi Kant Jha v. State of Bihar, (1959) SCR 1033
4. Nirmal Singh v. State of Haryana, MANU/PH/0340/2019
12. Sandeep Kumar Bafna v. State of Maharashtra, AIR 2014 SC 1745
5. Brady v. Maryland, 373 U.S. 83 (1963)
6. Ashutosh Verma v. CBI, 2014 SCC OnLine 6931
7. Jitendra Kumar @ Ajju v. State (NCT of Delhi), 2000 (53) DRJ 707
8. Nitya Dharmananda v. gopal Sheelun Reddy, 2017 SCC OnLine SC 1430
Articles/ Books/ Blogs-
1. Bryan A. Garner, “Black’s Law Dictionary” (8th edn, Thomson Reuters, 2004)
2. Sahajpreet Bhusari, “Alibi: Origin, Meaning, Application and Important Case Laws”, (LegalBites, 31 July 2021), < https://www.legalbites.in/alibi/#_ftn2>
3. Amandeep Kaur, “Principles of Fair Trial”, (iPleaders, 30 May 2019), < https://blog.ipleaders.in/fair-trial-adversary-system-principles-of-fair-trial/>
4. Parul Soni, “Fair Trial and its Principles”, (LawTimesJournal,13 October 2018),
This article is written by Utkarsha Deshpande of Kishinchand Chellaram Law College, Mumbai.