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Can Adverse Inference Be Drawn From Silence Of Accused ?

Sanskriti Gupta
7 Feb 2021 7:09 AM GMT
Doctrine of Legitimate Expectation and Promissory Estoppel
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Jurisprudentially, section 313 of the Cr.P.C.[1] envisages rules of natural justice.[2] In this regard, the Apex court has held that section 313 is not merely a notion of audi alteram partem[3] or a statutory right but also a Constitutional right to a fair trial under article 21 of the Constitution.[4] However, practically, this section gains much more significance due to rampant poverty, lack of adequate or competent representation and illiteracy. These are some of the social realities and undeniable features of the Indian legal system.
[5]
These factors can cause serious prejudice to the accused if he isn't made aware of the evidence against him by the judge and given a fair chance to establish his innocence.

Thus, section 313(1)(b) castes an imperative duty upon the court to give the accused an opportunity to explain any incriminating circumstances or inculpatory evidence put by the prosecution against him.[6] This provision, primarily, seeks to "establish a direct dialogue between the court and the accused."[7] Further, it "can be used to test the veracity"[8] of the prosecution's case. However, by virtue of 313 (3), the accused can refuse to or provide false answers during the examination.

This article seeks to examine whether an adverse inference can be drawn from such silence of the accused under 313 examination. In Part I, using case laws, the argument made is that the courts can draw an adverse inference in certain circumstances which are discussed in detail. Part II focuses on the distinction between adverse inference and deducing the guilt from the silence of the accused. Based on this, in Part III, I contend that such adverse inference does not conflict with the 'right to silence' granted to the accused under 313 (by virtue of Article 20(3) of the Constitution).

Part I

In the scheme of a criminal trial, the Cr.P.C. gives the accused an absolute 'right to silence'. This essential safeguard in criminal procedure emanates from Article 20(3) of the Constitution[9] as a right against self-incrimination or 'testimonial compulsion'. This right has developed from common law jurisprudence and furthers the cardinal principle of criminal law that the accused is presumed to be innocent until proven guilty. It is imperative to note that the burden of proving the guilt of the accused lies on the prosecution.

Section 313 gains paramount importance as a 'procedural safeguard' where the prosecution argues circumstantial evidence against the accused. 313(1)(b) mandates the court to question the accused "generally" in such a manner so as to enable him to explain all relevant evidence against him. Here, the accused can either furnish an explanation or refuse to answer such questions under 313(3). The silence of the accused means his refusal to answer or a bare denial to the questions put to him without any explanation.

Time and again, the Apex court has held that while the accused has the 'right to silence', he must also explain the incriminating evidence against him else adverse inference can be drawn. In the case of Phula Singh v. State of H.P.,[10] the appellant, charged with bribery under Prevention of Corruption Act, 1988, refused to provide any explanation as to the circumstances against him and evaded the questions with bare denials. While appreciating the right to silence, in view of the 313 statement of the accused, the court held that:

"The accused has a duty to furnish an explanation…regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent… or even remain in complete denial…However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law."[11]

Similarly, in Sanatan Naskar v. State of W.B.[12], the appellants were known to the deceased and their personal belongings were also recovered near the dead body amongst other crucial evidence to which they refused to give an explanation. The Apex held that:

"it was expected of the accused to provide some reasonable explanation in regard to various circumstances leading to the commission of the crime…The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime…In both these circumstances the Court would be entitled to draw adverse inference against the accused."[13]

To arrive at this reasonable principle, in State of West Bengal v. Mir Mohammad[14], the court, aptly, puts an analogy to the senior counsel for the accused that suppose a boy is kidnaped from under his lawful guardians. Witnesses see the accused kidnap the child, then, "what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy."[15] Here, even the learned counsel conceded that adverse inference would be drawn if the accused refuses to explain otherwise or remains silent.

Similarly, in Prahlad v. State of Rajasthan[16], an 8-year-old girl was lured away by the accused on the pretext of her giving her chocolates from her house. The girl knowing the accused as her family acquaintance readily goes with him and this fact is noted by the family of the girl and the chocolate shop owner as well. Her dead body is found the next day. Under these established circumstances, the accused under section 313, furnishes no explanation, not even when "he parted company with the young girl" or what happened after he got chocolates for the victim. The court aptly holds that:

"The silence on the part of the Accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the Accused."

In this context, the court in Mir Mohammad[17], invokes an important legal principle from section 106 of the Evidence Act[18] that :"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." The court says that this does not mean that the prosecution should not discharge its burden beyond reasonable doubt.

But that when they have successfully proved the facts from "which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation"[19] such adverse inference can be drawn. This becomes an important standard for drawing adverse inference in those cases where the accused "especially" withholds the knowledge that is impossible for the prosecution to prove and only the accused knows the truth of the matter.

In Munish Mubar v. State of Haryana,[20] the accused persons were known to the victim, one of whom goes to receive him at the airport. Later, he is found dead. The prosecution evidence links the accused persons to have been the perpetrators of the crime. Under their 313 examination, the accused firstly claim to have been falsely implicated and that their belongings were planted. Further, they are questioned about other incriminating evidence such as the car parked at the airport, phone call records, an illicit relationship between the accused and the deceased, blood of the accused at the crime scene amongst other incriminating evidence. The accused persons failed to furnish any explanation whatsoever in relation to these.

The court while propounding on the principle of circumstantial evidence linked with motive, elaborates that in such cases the accused is duty-bound to provide an explanation. It holds that, "merely making a bold statement that he was innocent" while a grave failure to explain all the evidence against him will lead to an adverse inference.

This being said, the prosecution's circumstantial evidence must be airtight in itself and no other reasonable possibility must be forthcoming. It can be concluded that, where each link in the chain of circumstances, unbroken, points to the accused and he cannot furnish an explanation regarding such evidence against him, his silence or denial can be justly used to draw an adverse inference.[21]

Part II

Another important factor in relation to such inference has been given in the case of Raj Kumar Singh.[22] In this case, a young girl goes missing and later her body is found on the terrace of a lonely house. The accused goes to the family of the girl asking for money to bring her back and there is no other evidence against him. Under his 313 examination, the accused is unable to furnish an explanation.

Here, the Apex court, reasons the principle that the silence of the accused cannot be used to fill the gap in the prosecution's evidence. This is because the statement of the accused is not evidentiary in nature and thus, not a substantive piece of evidence.[23] It must be noted that the accused has to explain circumstances proved by the prosecution against him and not prove his innocence in vacuum. The court lays down the law as:

"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. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."[24]

A criminal trial undertakes the provision of justice not only to the victim but also to the accused and society at large. Under section 313, by choosing not to answer, the accused does not render himself liable as no oath is administered to him. As noted earlier, since statements under 313 are not evidentiary in nature, drawing an adverse inference cannot be the same as deducing the guilt from the silence of the accused. Thus,"his is answers to the questions put to him under Section 313 Code of Criminal Procedure cannot be used to fill up the gaps left by the prosecution witnesses in their depositions."[25]

Drawing an adverse inference would mean that the silence of the accused adds to the prosecution's circumstantial case against him when he chooses not to refute it or explain such evidence. For example, why the accused was at a certain place at a certain time with the accused or how his belongings along with other evidence have been found in relation to the crime or the victim. On the other, hand deduction of guilt would be holding the accused guilty solely on his refusal to answer or explain in absence of such material circumstances.

In the case of State of Maharashtra v. Ashok Chotelal Shukla[26] the court held that even though the respondent failed to explain incriminating circumstances against him, the other circumstances do not coherently lead to the conclusion that he had caused the death of his wife. The court's decision reflects that an adverse inference is not the same as the guilt of the accused. Neither does one flow from the other necessarily.

Part III

The Apex court has deliberated that the questions under 313 judges/courts have to bring the attention of the accused to all incriminating material against him.[27] This plays a key role in preventing any prejudice and injustice being caused. If appropriate and comprehensive questions are not, or composite questions are, put to the accused, there is a fair chance that accused will not be able to explain his position or furnish a relevant explanation.[28] A plea of non-compliance thereof may not vitiate the conviction but the appellate court can remand the case back for re-trial and fresh examination of the accused under 313.[29]

Section 313 of the 1898 Code[30] in clause (2) stated that "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." In 1972, the code was amended and 313 omitted the latter part on drawing adverse inference. On a bare perusal, the legislative intent seems to be against drawing adverse inference from the silence of the accused.[31]

But while drawing adverse inference from the accused's silence, the courts have reiterated principles of natural justice and fairness with the aim of safeguarding the rights of the accused. The 'right to silence' granted under 313 (1)(3) flowing from the Constitutional provision Article 20(3)[32], is not violated.

Firstly, the right to remain silent under 20(3) envisages immunity to the accused from being compelled to give testimony against himself. So, when questioned under 313 the accused can choose to not answer and that discretion remains with the accused. In 2003, the Malimath Committee Report[33] analysed the right of silence in conjunction with various sections under the Cr.P.C and The Evidence Act. The committee notes that the power of questioning the accused with adverse inference comes after a prima facie case has been made out against him and the court can do so for the purpose of finding the truth. In relation to section 313, the committee noted that,

"Article 20(3) does not in terms speak of any immunity from drawal of appropriate inference when the accused refuses to answer. It is difficult to infer how immunity from drawal of appropriate inference including adverse inference flows from or is a part of the immunity against testimonial compulsions."[34]

Secondly, it is mostly in circumstantial evidence where furnishing such explanation becomes imperative. If every time an accused is put on spot as to the evidence against him and he refuses to answer or gives a bare denial, the courts will not be able to provide justice efficiently if they cannot draw an inference as required.

Finally, the 'right to silence' is not violated as the accused is not compelled, and can refuse to answer. If adverse inference was equal to deducing his guilt, the accused would've been forced to answer but silence only becomes a factor in the larger mitigating circumstances against him. As noted earlier, adverse inference from silence can not be made the sole basis for the conviction of the accused.[35]

The Apex court in a homogenous fashion, has reasoned that heavy reliance is first placed on the prosecution's evidence and its consistency. After which, if the accused instead of rebutting the evidence against him, adds to the prosecution's case by forthcoming with no explanation, an adverse inference can be drawn. And even then, the silence of the accused is not the sole factor in determining his guilt, only a contributing one.



[1] CODE CRIM. PROC. 1973 § 313.

[2] Nar Singh v. State of Haryana, (2015) 1 SCC 496 ¶ 16.

[3] The other side must be heard as well or no man should be condemned unheard.

[4] Renna Hazarika v. State of Assam, AIR 2018 SC 5361 ¶ 16.

[5] See Law Commission of India, 41st Report on The Code of Criminal Procedure 1898 , September 1969. The report made a finding in regards to section 342 (now, section 313 CrPC) of The Code Of Criminal Procedure ,1898. It said, "We have, after considering the various aspects of the matter as summarized above, come to the conclusion that S.342 should not be deleted. In our opinion the stage has not yet come for its being removed from the statute book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future." ¶ 24.45.

[6] See Pamma v. State of Uttarakhand, (2010) 10 SCC 439 ¶ 22; State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100.

[7] Sanatan Naskar v. State of West Bengal, AIR 2010 SC 3570 ¶ 10.

[8] Id.

[9] "No person accused of any offence shall be compelled to be a witness against himself", INDIAN CONST. art 20, § 3.

[10] Phula Singh v. State of Himachal Pradesh, AIR 2014 SC 1256.

[11] Id. 8.

[12] Santan Naskar, AIR 2010 SC 3570.

[13] Id. ¶ 10-11. For Contra. see Selvi v. State of Karnataka, AIR 2010 SC 1974 84.

[14] State of West Bengal v. Mir Mohammad Omar and Ors., AIR 2000 SC 2988 35. In this case, a young business man was abducted by the accused persons and they were last seen hunting him and subsequently, witnesses saw them taking him away violently. The next morning his dead body is found in the hospital.

[15] Id.

[16] Prahlad v. State of Rajasthan, 2018 SCC Online SC 2548. However, this judgement has been criticised by law students for using the 'last seen theory' callously without established circumstantial evidence; and that it moves away from the due process approach. For this contrary opinion, see Akash Mukherjee, A Case on Silence: Dissecting the Right to Silence of an Accused, THE CRIMINAL LAW BLOG, NLUJ (14th June 2020), https://criminallawstudiesnluj.wordpress.com/2019/05/15/a-case-on-silence-dissecting-the-right-to-silence-of-an-accused/#_ftn12; Indrashish Majumder, Right to Silence (A Grey Area in Criminal Jurisprudence) in the Light of Prahlad v. State of Rajasthan, CENTRE FOR CRIMINAL LAW, NUSRL RANCHI (14th June 2020), https://cclnusrl.wordpress.com/2020/04/14/right-to-silence-a-grey-area-in-criminal-jurisprudence-in-the-light-of-prahlad-v-state-of-rajasthan-vishwas-agarwal/.

[17] Mir Mohammad, AIR 2000 SC 2988.

[18] The Indian Evidence Act 1872 § 106.

[19] Mir Mohammad, AIR 2000 SC 2988 ¶ 37.

[20] Munish Mubar v. State of Haryana, AIR 2013 SC 912.

[21] For contrary opinion, see Nagraj v. State Rep. By Inspector of Police, (2015) 4 SCC 739 14-15.

[22] Raj Kumar Singh v. State of Rajasthan, AIR 2013 SC 3150.

[23] See also Mohan Singh v. Prem Singh and Anr. AIR 2002 SC 3582, where the court has reiterated that, "The statement of the accused under Section 313 Code of Criminal Procedure is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution."

[24] Id. ¶ 36.

[25] Munish Mubar, AIR 2013 SC 912.

[26] State of Maharashtra v. Ashok Chotelal Shukla, AIR 1997 SC 3111 30-31.

[27] See Rautu Bodra and Anr. v. State of Bihar, 1999 SCC (Cri) 1319.

[28] See Sharad Birdhi Chand Sara v. State of Maharashtra, 1984 AIR 1622.

[29] Nar Singh v. State of Haryana, (2015) 1 SCC 496.

[30] CODE CRIM. PROC. 1898 § 342.

[31] See. Law Commission of India, 41st Report on The Code of Criminal Procedure 1898 , September 1969 24.51- 24.52.

[32] INDIAN CONST. art 20, § 3.

[33] Justice Malimath Committee on Reforms of Criminal Justice System Government of India, Ministry of Home Affairs, Vol.1, March 2003 at 39-50. The report also critiques the approach taken by the 41st Law Commission report in terms of adverse inference being drawn. Contra. Prof. Upendra Baxi, Introductory Critique in The (Malimath) Committee on Reforms of Criminal Justice System: Premises, Politics and Implications for Human Rights, Amnesty International India, September 2003, https://www.legal-tools.org/doc/70d1c6/.

[34] Id. at 50 3.36.

[35] See Raj Kumar Singh v. State of Rajasthan AIR 2013 SC 3150; Brajendrasingh v. State of M.P., AIR 2012 SC 1552.


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