By Akash Mukherjee
Introduction
The right to silence is a vital right of the accused recognized by the law around the globe. It germinates from the right to protection against self-incrimination embodied in the Indian Constitution under Article 20(3). It is buttressed by the cardinal principle of criminal law that it is the duty of the prosecution to prove the guilt of the accused as he is presumed to be innocent until proven guilty. The criminal law of India has guaranteed the right to silence to its citizens through various provisions. In this Article, we are concerned with Section 313 of the Code of Criminal Procedure, 1973 and the practice of drawing adverse inferences from the silence of the accused, which has become a controversial issue in light of the recent case of Prahlad v. State of Rajasthan.[1] This Article would outline the various judicial interpretations of the said Section by the Indian courts emphasizing on the law of drawing adverse inferences andthe constitutional validity of such a practice with regard to the legislative intent of the framers of the Code of Criminal Procedure, 1973.
The Prahlad Dilemma
The aforementioned case was concerning the rape and murder of an eight-year old girl child. The accused charged with the same was the last person seen with her while purchasing sweets for her from a shop, shortly after which she went missing. Her corpse was discovered next morning. The Trial Court convicted the accused for offences under Section 302 of the Indian Penal Code [hereinafter referred to as the “IPC”] and Section 4 of the Protection of Children from Sexual Offences Act 2012 [hereinafter referred to as the “POCSO”]. The decision was affirmed by the High Court. The accused challenged his conviction and filed an appeal in the Supreme Court. The Supreme Court acquitted him of the POCSO charges due to lack of reliable material against him. However, he was convicted for murder. The conviction was based on an adverse inference drawn by the Court from the failure of the accused to provide an explanation for the events which followed after he bought the sweets for the girl. Apart from the fact that the accused was the last person seen with the girl, the Court solely relied on the adverse inference drawn from the silence of the accused to convict him for her murder. A circumstance of last seen together does not by itself lead to the inference that the accused had committed the crime and a mere non-explanation by the accused with regard to the same cannot lead to the same inference.[2] Thus, the issue which arises from the judgment is that it sets a precedent for conviction on criminal charges based on adverse inferences drawn from the silence of the accused under Section 313 of the Code of Criminal Procedure, 1973.
Section 313 and the Right to Silence
Section 313 provides the accused with the ‘right to silence’ at the stage of trial. The Section stipulates the power of the Court to question the witness at any stage of the trial about circumstances appearing in the evidence against him. The accused is not administered an oath when he is examined under sub-clause (3) of this Section and is not liable to be punished for not answering or providing a false answer during such an examination. The legislative scheme of the provision is to allow the accused to explain circumstances which appear to be incriminating him.[3] However, there is no express provision which mandates an explanation from the accused. Moreover, the Section embodies the right to silence of the accused when it provides that the refusal to answer by the accused is not punishable. Also, it can be inferred from the non-administration of the oath to the accused before such examination that the accused is not under any compulsion to answer any questions made under this Section. Thus, Section 313, in spirit, acts as an aid to the accused to explain or rebut any incriminating evidence against him if he deems fit. The Section also provides that answers given by the accused may be taken into consideration by the Court. This makes it even more important that the accused must answer only when he is certain that his answer could not be used as evidence against him and further displays the significance of his right to silence.
Jurisprudence on drawing adverse inferences
The jurisprudence on drawing adverse inferences against the accused from his silence while being questioned under Section 313 has been dealt with by the Court on several occasions. The Courts have vacillated on this issue and there have been judgments both prohibiting and allowing for the same. However, recent judgments have been inclined towards allowing such inferences to be drawn by the Court. In Ramnaresh & Ors. v. State of Chattisgarh,[4] it was held that, “the Court would be entitled to draw an inference, including adverse inference, as may be acceptable to it in accordance with law.” It was observed that even though the accused under Section 313 was permitted to maintain silence at the time of trial it did not preclude the Court from drawing such an inference. In Munish Mubar v. State of Haryana[5], it was held that it is obligatory for the accused to furnish an explanation with respect to implicating circumstances associated with him, the failure of which could lead to adverse inferences being drawn from the silence of the accused. In Brajendra Singh v. State of M.P.,[6] the Court held, that even though the statement of the accused under Section 313 cannot be solely relied upon to convict him but where such a statement is in line with the case of the prosecution, then the heavy onus of providing adequate proof on the prosecution, is to some extent, reduced. In Raj Kumar Singh @ Raju v. State of Rajasthan,[7] it was noted that, “an adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same.” The recent decision in Prahlad v. State of Rajasthan, however, showed that reliance on such an adverse inference can be placed even to the extent of causing conviction of the accused.
Constitutional Right under Article 20(3)
The right to silence of the accused in India emanates from Article 20(3) of the Constitution which states that no one can be compelled to be a witness against himself. The provision embodies a fundamental canon of law- the privilege against self-incrimination. The characteristics of this privilege are: (a) that the accused is presumed to be innocent; (b) that it is for the prosecution to establish his guilt; and (c) that the accused need not make any statement against his will.[8] Article 20(3) strikes at ‘testimonial compulsion’ at any stage of the criminal process.[9] As per the interpretation given by the Courts in the aforementioned decisions the accused is compelled to give an explanation to the incriminating circumstances against him as a failure to do so would lead to the Court drawing an adverse inference against him which could, as illustrated by the Prahlad judgment, lead to conviction. The presumption of innocence of the accused cannot be discarded merely on the exercise of the right to remain silent by the accused as such an application would debilitate the legal relevance of the presumption. Moreover, the reliance on adverse inferences to convict the accused is in stark contrast of the principle that it is the duty of the prosecution to establish the guilt of the accused. It will be against the due process model followed by our nation. Thus, drawing adverse inferences from the silence of the accused is in violation to the fundamental right guaranteed by the Constitution under Article 20(3).
Legislative Intent
The legislative intent regarding the practice of drawing adverse inferences from the accused’s silence can be found by merely comparing Section 313 of the Code Criminal Procedure, 1973 with Section 342 of the Code of Criminal Procedure, 1898. Section 342 (2) stated:
“The accused shall not render himself liable to punishment by refusing to answer questions or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks fit.”
Section 313(3) of the new Code states:
“The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.”
It is evident from the above that the framers of the new code did not wish to retain the practice of the Court to draw inferences from the refusal of the accused to answer questions posed to him under Section 313. The practice was, undoubtedly, dropped due to the introduction of Article 20(3) in the Indian Constitution which provided for protection against self-incrimination. Renowned jurist D.D. Basu in his commentary stated, while taking into account the dissenting opinion of the judges in Adamson v. California[10] that the constitutional implication of such a right under Article 20(3) is that, “if you cannot compel an accused to make a statement against himself, you cannot draw any inference against him because he remains silent, since that would obviously oblige him to speak, rather than remain silent.”[11] He further stated that, “to draw an adverse inference from the refusal to testify is indeed to punish a person who seeks to exercise his right under Art. 20(3). Just as no inference of guilt can be made from the fact that the accused is invoking the protection of Art. 20(3), so no inference of guilt can be made from the mere fact that he refuses to answer or to make a statement.”[12] Thus, the legislative intent of the framers of the Code was never to allow adverse inferences to be drawn to the detriment of the accused as it would compromise the fundamental right of the accused under Article 20(3).
Conclusion
Right to silence is a longstanding fundamental human right recognized by legislatures across the globe. However, its implementation differs in various countries and the set of principles and beliefs that they adhere to. Due process embodies the principles of liberalism. Indian judiciary adheres to due process and, thereby, propounds liberalism. However, there are times when it strays from the Due Process approach as in the case of Prahlad v. State of Rajasthan.
The jurisprudence with regard to drawing adverse inferences from the silence of the accused during questioning under Section 313 of the Code of Criminal Procedure, 1973 is flawed. Firstly, the provision itself, in spirit, was inserted to aid the accused in providing explanation for incriminating circumstances. It only allows the Court to draw inferences from the answers provided by the accused not from his silence. It expressly precludes the administration of oath to the accused so that the accused is not under any fear of punishment while making his statements. This affects the reliability of the statements made by the accused and, therefore, such a statement cannot be regarded as evidence under Section 3 of the Indian Evidence Act.[13] Thus, it is logically redundant to draw adverse inferences from the silence of the accused under Section 313 to the extent of solely relying on such evidence to convict the accused.
Also, the constitutional guarantee under Article 20(3) of the Constitution, further, reinforces the right to silence of the accused. The practice of drawing an adverse inference from the accused exercising his right to silence would amount to testimonial compulsion and would contravene Article 20(3). The legislative intent of the framers of the new Code while dropping the previous provision allowing adverse inferences to be drawn from the refusal of the accused to answer a question under Section 313 of Cr.P.C., 1973 demonstrates the same line of thought.
Thus, it is imperative that the judiciary recognizes the right to silence as an unbridled right which forms a part of the right to fair trial under Article 21 establishing its significance in criminal jurisprudence.
(The author is a second year student at National Law University, Jodhpur)
[1] Prahlad v. State of Rajasthan, 2018 SCC Online SC 2548 (The Supreme Court of India).
[2] Kanhaiya Lal v. State of Rajasthan, (2014) 4 SCC 715 (The Supreme Court of India).
[3] Bibhuti Bhusan Das Gupta And Anr vs State Of West Bengal, 1969 AIR 381 (The Supreme Court of India).
[4] Ramnaresh & ors v. State of Chattisgarh, 2012 4 SCC 257 (The Supreme Court of India).
[5] Munish Mubar v. State of Haryana, (2012) 10 SCC 464 (The Supreme Court of India).
[6] Brajendra Singh v. State of M.P., (2012) 4 SCC 289 (The Supreme Court of India).
[7] Raj Kumar Singh @ Raju v. State of Rajasthan, 2013 SCC OnLine Raj 2350 (The Supreme Court of India).
[8] MP Jain, Indian Constitutional Law, 7th ed. 2016
[9] Article 20(3), The Constitution of India, 1950 (The Union of India).
[10] Adamson v. California, 332 U.S. 46 (1947) (The United States Supreme Court).
[11] DD Basu, Commentary on the Constitution of India, vol. 2, 9th ed.(retrieved from- 180th Law Commission Report, May 2002)
[12] Id.
[13] Sri Sujit Biswas v. State of Assam, 2013 CrLJ (SC) 3140 (The Supreme Court of India).
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