Can Adverse Inference Be Drawn From Silence Of Accused ?

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...

Can Adverse Inference Be Drawn From Silence Of Accused ?

Sanskriti Gupta

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