PEGASUS : THE WHODUNNIT QUESTION AND THE PRINCIPLES OF CIRCUMSTANTIAL EVIDENCE

THE WHODUNNIT QUESTION

#Pegasus. Some of my friends have been pointing out that there is nothing linking anyone to anything. Casually dismissive of clear evidence of the crime itself, they assert that it is pointless to waste the nation’s time “over nothing” as long as there is no perpetrator/s in sight. I am also helpfully reminded that “suspicion however strong is not proof“.

Surprisingly, many of them are lawyers. They should know that it is not necessary to know the identity of the perpetrator to commence an investigation. Indeed, one of the primary purposes of investigation is to ascertain the identity of the actual perpetrator.

The question is, are the facts reasonably sufficient to trigger an investigation/enquiry into the involvement of any particular individual or entity.

Interestingly enough, none disputes the facts involved. They are willing to concede that a crime has been committed or is being committed.

They are, they say, challenging me (almost triumphantly I might add) to link the crime to an individual/entity. They are posing the classical whodunnit question. Of course, I am not missing the smug sarcasm underlying the question. Nevertheless, let me indulge them.

But first, let it not be forgotten, it takes a robust investigation to gather evidence. I am not an investigator, I am a lawyer. I am not skilled or trained in the art of investigation and in the techniques of collection of evidence to present a prosecutable case. Let us leave that part to the specialists.

However, like most other lawyers, I do know something about correlating a bunch of facts that might collectively indicate a prosecutable crime. So, to humour my friends, for the record, let me state the facts they concede, and then the law that should be equally obvious to them as fellow practitioners themselves.

THE PEGASUS FACTS

In this whole Pegasus business, the following are incontestable facts, and to their credit, as already mentioned, my friends do not wish to contest them:

1. A crime was committed, or is being committed
2. The scale and complexity of it is such that it had/has to be a pre-meditated, well-considered, well-planned, well-coordinated organised crime
3. The weapon/device/technique employed to commit the crime is traceable to just one source of ownership
4. Without exception, the said owner provides the weapon/technique only to “vetted governments”
5. Without exception, all the victims fall into an easily distinguishable class – a class comprising of persons that has either involved in activities that are unfriendly to a particular entity, or, involved in activities, information of which may be valuable to that entity
6. The activities of those victims that qualify them as members of the distinguishable class cannot possibly be of such interest to any, but a particular entity (and this is important)

PRINCIPLES OF CIRCUMSTANTIAL EVIDENCE 

The above facts elicit a Pavlovian response from lawyers. We tend to look for the cumulative effect of those facts. This is because the principles of appreciation of “Circumstantial Evidence” were drilled into our heads since the time we sat for the lectures on the Law of Evidence and were thereafter recalled frequently in the course of our law practice, and, I might add, asserted time and time again by our Supreme Court and various High Courts.

Those foundational principles of appreciation of Circumstantial Evidence may be summarised as follows:

1. The “circumstances“ from which an inference of guilt is sought to be drawn must be cogently and firmly established;
2. Those circumstances should be of a definite tendency unerringly “pointing towards” the guilt of the accused; 
3. The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human “PROBABILITY” the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. (Please note, the principle says, “probability”, not certainty. Remember, our professors cautioned us against mixing up the meanings of human probability and clinical certainty).   

Incidentally, I have always associated the above principles with a somewhat similar deductive logic contained in an axiomatic statement in the Mahabharata when a very powerful General, also an almost invincible wrestler, was found slain. “If it’s Keechaka that was killed, it must surely be the work of Bhim”, said men that knew fully well that Bhim alone possessed the degree of skills and strength necessary to pull off that feat.

In conclusion my friends, coming back to the principles of Circumstantial Evidence, you cannot pretend to miss the obvious – that the very “circumstances”, the very “facts” that you concede as probably true, offer the “evidence” that you seek. The needle of suspicion unerringly points to just one entity given the existence of a plausible motive, the opportunity and an obvious capacity to do what was done at the scale and complexity involved.

A NOTE ON THE DICTUM “SUSPICION HOWEVER STRONG IS NOT PROOF”

Indeed, suspicion however strong is not proof. However, it has zero applicability to this issue.

Although the words “evidence” and “proof” are often used interchangeably in common parlance, in Jurisprudence they have separate and distinct meanings. Evidence may be roughly stated as all facts or materials that establish one or the other fact relevant to the matter under inquiry. Proof, on the other hand is the sum of all evidence. If all of the evidence fail to add up, the case will fail for want of adequate “proof” of guilt of the accused.

It is thus immediately clear that “Proof” is a matter that concerns the court at the fag end of a trial. The accused would have been charged, they would have stood trial, evidence against them would have been adduced, impeached or rebutted and it is after all of that exercise that the question of “Proof” arises. The court will then examine and evaluate all the evidence to see if the guilt of the accused is “proved” beyond reasonable doubt. It is at that stage that the dictum of “suspicion however strong is not proof” will weigh with the court.

The above dictum should not be mixed up with the requirements of initiating an investigation or enquiry. In order to initiate an investigation or enquiry, no more than prima facie material is necessary. In this case, there is much more than prima facie material.

Thus, the question if the facts are reasonably sufficient to trigger an investigation/enquiry is easily answered in the light of the principles of Circumstantial Evidence. After all, it is just a matter of corelation of facts and judging its cumulative effect. Do the math yourself and let me know your results.

My own personal opinion is this:

That the facts clearly probablise, if not strongly and irrefutably indicate the commission of high crimes (especially considering that Ministers and legislators were targeted) by some person/s holding public office or an entity that fits the description of public institution in India. As to who they could be is a ridiculously easy guess, but it is not necessary to engage in guesswork in this case.

That such facts more than measure up to the standards required for commencement of an investigation to ascertain the identity of the perpetrators and bring them before Justice or initiate such other motion against them as is contemplated by the law.

That, a failure to initiate appropriate proceedings in cases of High Crimes by itself may constitute an act of High Crime.

SATYAMEVA JAYATHE !

Or, if you prefer Latin, VERITAS VINCIT !