(I am delighted to present a guest post by Ms. Sregurupriya Ayappan, a Fourth Year student of the B.A. LL.B. (Hons.) program at NLSIU, Bangalore)
Recently, a three Justices’ bench of the Supreme Court rendered its decision in Prahlad v. State of Rajasthan [2018 SCC OnLine SC 2548] that could potentially be a dangerous precedent for the years to come. The facts, simply put, were this: The accused was alleged to have raped and murdered an eight-year old girl child. The child was last seen with him as he purchased sweets for her from a shop, shortly after which she went missing and her corpse was found next morning. The Trial Court convicted the accused for offences under Section 302 of the Indian Penal Code [IPC] and Section 4 of the Protection of Children from Sexual Offences Act 2012 [POCSO]; a verdict confirmed by the High Court, an appeal against which ended up before the Supreme Court.
Lack of Evidence and a Specious Leap in Reasoning
The evidence was purely circumstantial and the prosecution could establish little beyond the fact that the accused had, at some point on the same day the child went missing, taken her to a shop and bought her sweets [Para 5]. The medical examination revealed 5 injuries which, the medical expert stated on cross-examination, were “simple in nature and they are likely to be caused by falling.” [Para 11].
Based on this, the Supreme Court acquitted the accused of the POCSO charges as it found no “reliable material” to conclude otherwise [Para 11]. At the same time though, the Court found “ample material” against the accused to sustain a conviction for murder. What was this ample material? It was not anything that the prosecution offered as evidence. Instead, the Court found support in a different source – the statement of an accused tendered without oath under Section 313 of the Criminal Procedure Code 1973 [Cr.P.C.]:
“No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C. as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. 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.” [Para 9, emphasis mine]
In this post, I posit that this treatment by the Court of the statement under Section 313 Cr.P.C. has effectively equated silence of the accused to guilt and is problematic on several grounds.
What is Section 313 Cr.P.C.?
According to the legislative scheme of the provision, the accused can be examined at any stage of a trial or inquiry. All the incriminating material gathered against him are shown and he is given an opportunity to provide explanations and put forth his defence. Crucially, the accused is not put on oath at any point during this examination. He shall also not be liable to punishment for refusing to answer or even providing false answers. The answers may then be produced as evidence of record by either prosecution or defence and may be taken into consideration. In other words, the statute itself expressly provides for the right of accused to remain silent. Nowhere does it state that the accused is “expected to come out with an explanation”, as the Court in Prahlad required. [Para 9]
Judicial Bolstering of Section 313
Courts too have interpreted Section 313 Cr.P.C. in line with the legislative intent and have even strengthened the rights of the accused under this provision. They have clarified that the statement under Section 313 Cr.P.C. is not substantive evidence and is merely an aid for the Court to examine the evidence on record. It can neither be made the sole basis for conviction, nor can it be used to complete the missing links in the prosecution’s evidence. [Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722, Para 36] It has also beneficially interpreted it to observe that a court is bound to examine whether the defence, if any, put forth by the accused is a plausible narrative given the evidence on record. [M. Abbas v. State of Kerala, (2001) 10 SCC 103, Para 10] Further, courts have also read in the ‘rule against adverse influences’ and stated that no adverse inferences can be drawn from the silence of the accused in the examination under this provision. This has in fact been considered conjunctively with Article 20(3) of the Indian Constitution and is, hence, a facet of the fundamental right against self-incrimination. [Selvi v. State of Karnataka, (2010) 7 SCC 263, Paras 84, 126] This position has been reiterated time and again in a catena of cases. It is then evident that if even the answers of accused cannot be used as evidence against him, it is inconceivable that the silence of the accused, when he is constitutionally and statutorily guaranteed that rights, can be relied on to concoct a narrative that convicts him.
Undoing ‘Trite’ Law and the Rights of Accused in a Single Blow
As we can see, the object of the examination under Section 313 Cr.P.C. is to benefit the accused by providing him an opportunity to defend himself. He has the right to remain silent and the only way in which the provision can be used against the accused is if he has made a statement supporting the prosecution which the court may then use as aid while appreciating the evidence. The Court in Prahlad, however, has: (i) abridged the fundamental right to remain silence and reversed the burden of proof, (ii) overlooked the important fact that the accused is not put on oath when he is subjected to inquiry under this provision and (iii) finally, has exacerbated the divide between those who can and cannot afford good counsel.
Firstly, under Indian law, the accused has a right to silence and can remain silent through the entire process and furnish no evidence of his own. It is the duty of the prosecution to discharge the burden of proving that the accused is guilty beyond reasonable doubt. The prosecution must “stand or fall on its own legs and cannot derive any strength from the weakness of the defence.” [Sharad Birdhi Chand Sarda v. State Of Maharashtra, (1984) SCC 4 116] This is provided for in Section 101 of the Indian Evidence Act, 1872 [IEA]. Mere silence cannot shift the onus upon the accused even under Section 106, IEA unless the prosecution has first established a case against him. If not, the benefit of doubt must be given to the accused due to the presumption of innocence which works in favour. By drawing adverse inferences from the silence during the examination under Section 313 Cr.P.C., the Court in Prahlad has decreased the scope of the right against self-discrimination and is effectively asking the accused to prove his innocence.
Secondly, the statement under Section 313 Cr.P.C. is taken without administration of oath to the accused. Oath is an integral element for the statement to be relied on as evidence since it puts the maker of the statement on notice that s/he can be prosecuted for perjury. This increases the reliability of the evidence considerably whereas in this provision, the inverse is true given the statutory leeway to lie. Further, the accused is not subject to cross-examination for the statement made under Section 313 Cr.P.C.. This effectively means that two out of the three safeguards, the last being demeanor, which the Court can rely upon to ascertain the truth is absent in the case of a Section 313 Cr.P.C. statement. It is for this reason that the Supreme Court has itself observed that this statement “cannot be treated as evidence within the meaning of Section 3 of the Evidence Act, as the accused cannot be cross-examined with reference to such statement.” [Sujit Biswas v. State of Assam, (2013) 12 SCC 406, Para 12]
Lastly, how advantageously the accused uses the opportunity afforded to him in Section 313 Cr.P.C. and what statements he makes to point out his innocence depends on whether he has access to effective counsel. Given the large number of cases in which accused with poor means have to rely on disinterested and negligent legal aid lawyers, more often than not, they squander away this right – either by remaining silent where they have a cogent alternative explanation for the evidence on record, or by making incriminatory statements when they should have exercised this right to silence. It is then incumbent upon the Court to beneficially interpret Section 313 Cr.P.C. so that the accused is ensured a fair trial instead of using it as a tool to implicate the potentially innocent.
Reena Hazarika and the Precedent Problem
In stark contrast to the disappointing decision in Prahlad, a two Justices’ bench of the Court in Reena Hazarika v. State of Assam [2018 SCC OnLine SC 2281] interpreted Section 313 Cr.P.C. in consonance with the precedents and legislative intent I discussed above. In this case, a woman was had allegedly murdered her husband and the evidence of record, entirely circumstantial, only established the presence of the accused with the deceased the night he died. The Court relied on the statement of the accused under Section 313 Cr.P.C. which presented a plausible alternative and explained her presence with the deceased to acquit her. The Court reiterated that Section 313 Cr.P.C. enshrined the constitutional right to fair trial under Article 21. It was faithful to the text of the provision as it reiterated that the accused could put forth a defence under Section 313 Cr.P.C. at any stage of the trial, even after the prosecution evidence is closed. It went on to state that if the defence of the accused is not considered at all by the Court, then the conviction itself stands vitiated. [Para 16]
Unfortunately, Reena Hazarika and the many cases before which have safeguarded the rights of the accused are rendered by smaller benches and could stand overruled by Prahlad. Even Selvi, also by a 3 Justices’ bench, does not come to our rescue given the lack of judicial clarity regarding what would be considered precedent when there are conflicting decisions rendered by co-equal benches (discussed here).
Conclusion
As we can see, the ramifications that this decision could potentially have given its interpretation of Section 313 Cr.P.C. are grave. Not only has Prahlad transferred the burden of proof from the prosecution to the accused and violated the principle of presumption of innocence, but it has gone against the text of the provision concerned itself and abridged the right against self-incrimination under Article 20(3) of the Constitution.
It bodes ill that Prahlad may not be considered per incuriam and could be the law binding on all courts as stipulated by Article 141 of the Constitution. What is even more ominous is that this trend of doing away with the ‘rule against adverse inferences’ in the Supreme Court seems likely to continue with Justice Lokur recently making remarks similar to the reasoning in Prahlad in a matter reserved for judgment. This could result in yet another 3 Justices’ bench decision affirming the dilution of the right against self-incrimination under Section 313 Cr.P.C.
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