INDRAKUNWARversusTHE STATE OF CHHATTISGARH

                  [2023] 14 S.C.R. 959 : 2023 INSC 934



                             CASE DETAILS
                            INDRAKUNWAR
                                      v.
                   THE STATE OF CHHATTISGARH
                   (Criminal Appeal No. 1730 of 2012)
                            OCTOBER 19, 2023
           [ABHAY S. OKA AND SANJAY KAROL, JJ.]
                              HEADNOTES
      Issue for consideration: Whether, in explaining the purported
incriminating circumstance against her, the convict-appellant ought to have
disclosed, over and above denial of any relationship with the deceased
child, the specifics of her miscarriage and its aftermath; particularly when
the prosecution has failed to discharge its burden of establishing such
relationship between the deceased and the convict -appellant.
      Constitution of India – Right to Privacy – Personal life of a woman
accused of committing a crime – Failure of Prosecution to discharge
its duty:
       Held: The essence of a woman’s fundamental right to equality and
privacy, regarding private matters of bodily and psychological integrity is the
ability to make autonomous decisions about her own body and reproductive
choices – It is entirely within the realm of privacy of a woman to decide
whether or not to bear a child or abort her pregnancy (within the framework
of law) – In the instant case, the guilt has been placed on appellant-convict
without any solid foundation thereto since no relationship of any nature
whatsoever could be established between her and the deceased child
discovered in the dabri – The conclusion drawn is simply on the basis that
the convict-appellant was a woman living alone and had been pregnant (as
admitted in the statement u/s. 313 CrPC) – This, in the Court’s view, was in
itself suspect since she had been ‘deserted’ by her husband – Her statement,
nowhere reflects an answer to a question concerning the particulars of the
child that she was admittedly carrying but denied that the deceased was not
the one recovered from the dabri – Although there is a requirement by law

                                     959
960          SUPREME COURT REPORTS                          [2023] 14 S.C.R.


to disclose the aspects required to adjudicate in a criminal matter, such duty
cannot unreasonably and unwarrantedly step over the fundamental right of
privacy. [Paras 27, 36]
     Code of Criminal Procedure, 1973 – s. 313 – Principles as evolved
over period of time for statements u/s. 313 Cr.PC.:
      Held: 1. The object, evident from the Section 313 Cr.PC. itself, is to
enable the accused to themselves explain any circumstances appearing in
the evidence against them; 2. The intent is to establish a dialogue between
the Court and the accused – This process benefits the accused and aids the
Court in arriving at the final verdict; 3. The process enshrined is not a matter
of procedural formality but is based on the cardinal principle of natural
justice, i.e., audi alteram partem; 4. The ultimate test when concerned with
the compliance of the Section is to enquire and ensure whether the accused
got the opportunity to say his piece; 5. In such a statement, the accused may
or may not admit involvement or any incriminating circumstance or may
even offer an alternative version of events or interpretation – The accused
may not be put to prejudice by any omission or inadequate questioning; 6.
The right to remain silent or any answer to a question which may be false
shall not be used to his detriment, being the sole reason; 7. This statement
cannot form the sole basis of conviction and is neither a substantive nor
a substitute piece of evidence – It does not discharge but reduces the
prosecution’s burden of leading evidence to prove its case – They are to be
used to examine the veracity of the prosecution’s case; 8. This statement
is to be read as a whole – One part cannot be read in isolation; 9. Such a
statement, as not on oath, does not qualify as a piece of evidence u/s. 3 of
the Indian Evidence Act, 1872; however, the inculpatory aspect as may be
borne from the statement may be used to lend credence to the case of the
prosecution; 10. The circumstances not put to the accused while rendering
his statement under the Section are to be excluded from consideration as
no opportunity has been afforded to him to explain them; 11. The Court is
obligated to put, in the form of questions, all incriminating circumstances
to the accused so as to give him an opportunity to articulate his defence –
The defence so articulated must be carefully scrutinized and considered; 12.
Non-compliance with the Section may cause prejudice to the accused and
may impede the process of arriving at a fair decision. [Para 34]
    INDRAKUNWAR v. THE STATE OF CHHATTISGARH                                961


     Penal Code, 1860 – s. 302 – Prosecution case that the convict-
appellant had relations with a co-villager as a result of which she
conceived a child – She, upon giving birth, allegedly killed this child
and threw the corpse into a dabri (small water body- pond) – The High
Court upheld the conviction u/s. 302 IPC and the order of sentence
passed by the trial Court – Propriety:
       Held: It is established that negative inferences cannot be drawn for a
question or incriminating circumstance not put to an accused while making
a statement u/s. 313 Cr.P.C – Her statement, nowhere reflects an answer to
a question concerning the particulars of the child that she was admittedly
carrying but denied that the deceased was not the one recovered from the
dabri – It is a matter of record that none of the witnesses has seen the convict-
appellant throwing the deceased child into the dabri; as hitherto observed,
no conclusive proof, of any nature, of relationship had been put forth by the
prosecution; no evidence has been led to cast doubt upon the version of the
convict – The statement of the doctor is silent on the death of the deceased
having occurred prior to or after birth, although in examination in chief,
the doctor has deposed that the death of the deceased child was homicidal
in nature; however, in the cross-examination, it is admitted that such fact
does not form part of the record, thereby calling into question the conclusion
itself as it is a vital piece of information that has been omitted – Therefore,
the conviction recorded against the convict-appellant to be entirely based
on mere presumption, with the actual evidence on record failing to establish
the prosecution case much less beyond reasonable doubt. [Paras 36, 41, 43]
       LIST OF CITATIONS AND OTHER REFERENCES
     Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368 : [2018] 4 SCR 955;
S. Khushboo v. Kanniammal (2010) 5 SCC 600 : [2010] 5 SCR 322; K.S.
Puttaswamy (Privacy-9J.) v. Union of India (2017) 10 SCC 1: [2017] 10
SCR 569 – relied on.
     Geeta Devi v. State of U.P 2022 SCC OnLine 57; Shakti Vahini v.
Union of India (2018) 7 SCC 192 : [2018] 3 SCR 770; Suchita Srivastava v.
Chandigarh Admn. (2009) 9 SCC 1 : [2009] 13 SCR 989; X v. The Principal
Secretary, Health and Family Welfare Department, Government of NCT
of Delhi and Ors 2022 SCC OnLine SC 905; XYZ v. The State of Gujarat
962              SUPREME COURT REPORTS                       [2023] 14 S.C.R.


& Ors. Criminal Appeal No. /2023 (@ Slp (Crl.) Dy. No. 33790/2023) –
referred to.
         OTHER CASE DETAILS INCLUDING IMPUGNED
                ORDER AND APPEARANCES
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1730
of 2012.
    From the Judgment and Order dated 20.04.2010 of the High Court of
Chhattisgarh at Bilaspur in CRLA No. 605 of 2005.
       Appearances:
    Surya Narayan Singh, Sr. Adv., Naresh Kumar, Shantanu Sharma,
Advs. for the Appellant.
     Gautam Narayan, Ms. Asmita Singh, Harshit Goel, Ms. Akriti Arya,
Siddhant Singh, Advs. for the Respondent.
         JUDGMENT / ORDER OF THE SUPREME COURT

                                     JUDGMENT
       SANJAY KAROL J.,
       1. The questions arising for consideration in the present appeal are:
       1)     To what extent does the right to privacy shield the matters
              concerning the personal life of a woman accused of committing
              a crime, particularly when the prosecution has failed to discharge
              its duty?
       2)     To what extent are the rights or duties of the accused to explain
              the incriminating circumstances appearing against them in a
              statement under Section 313 of the Code of Criminal Procedure1?
     2. This appeal at the instance of the convict-appellant impugned a
judgment of the High Court of Chhattisgarh passed in Criminal Appeal
No.605 of 2005 dated 20th April 2010, whereby the judgment of conviction
under Section 302 of Indian Penal Code, 18602 and order of sentence


1     Hereinafter referred to as ‘CrPC’
2     Hereinafter referred to as ‘IPC’
    INDRAKUNWAR v. THE STATE OF CHHATTISGARH                             963
               [SANJAY KAROL, J.]

dated 4th July 2005 passed by the Additional Sessions Judge, Baikunthpur,
District Koriya (Chhattisgarh) in Sessions Trial No. 525 of 2004 was
upheld.
     BACKGROUND OF THE CASE
     3. Eschewing unnecessary details, the facts of the case put forward
by the prosecution are:
     3.1 The convict-appellant had relations with a co-villager, namely,
     Baiga Gond, as a result of which she conceived a child. She, upon
     giving birth, allegedly killed this child and threw the corpse into a
     dabri (small water body- pond).
     3.2 An FIR (First Information Report) dated 14th September 2004,
     the very day on which the alleged corpse of the newborn child of the
     convict-appellant was found, stood registered. After due investigation,
     the chargesheet was filed on 13th October 2004, and eventually, the
     accused was charged with committing an offence punishable under
     Section 302 of the IPC.
     4. The Trial Court, having recorded the statements of various witnesses,
observed that the case is the one resting upon circumstantial evidence.
     4.1 The prosecution declared five of the eight witnesses examined
     hostile, including Jai Mangal Singh - PW1, at whose instance the FIR
     was registered.
     4.2 The other witnesses,for instance, Sumitra – PW4, is recorded to be
     “guessing” about the convict-appellant being pregnant; Kuwarobai –
     PW8refused that she ever saw the convict-appellant pregnant as also
     that she would use a ‘chadar’ to hide her pregnancy.
     4.3 Yet, referring to the statements of PW1, Suraj Kumar Singh – PW2,
     Rambaran Singh – PW3, PW4, Ram Jhalako – PW5, Birhulia – PW6,
     Rambai – PW7, A.R. Manikpuri (Head Constable) – PW9 to establish
     the presence of the body of the deceased child in ‘Suraj ki dabri’ the
     statement under Section 313 CrPCof the convict-appellant along with
     the statement of Dr. Divya Rani Tigga – PW11 regarding the signs
     of recent delivery on the person of the convict-appellant found the
     following circumstances to have been proved: -
964               SUPREME COURT REPORTS                     [2023] 14 S.C.R.


             a)     The accused was living in the village alone as her husband
                    deserted her. Also that, she was pregnant.
             b)     In the dabri (small pond), the body of a newborn baby was
                    found on 14th September 2004, and a few days before that,
                    i.e., 2-3 days, the accused had delivered a child.
             c)     The accused did not state anything nor tell anyone about
                    the delivery.
       4.4 Given the above, the Trial Court found the offence punishable
       under Section 302 IPC to have been proved beyond reasonable doubt.
      5. The High Court, in the judgment impugned before us, taking note
of the testimony of PW11, who deposed that she had, upon examination,
found the convict-appellant to have delivered a child and that the deceased
had suffered injuries, convicted the accused. However, the doctor admits that
the death of the child being prior to or after the birth remains unmentioned.
The same was noted to be of no consequence as the injuries recorded on the
body of the deceased child established the death to be homicidal in nature.
In conclusion, the High Court held that the conviction under Section 302
IPC was warranted.
      6. It is observed that the Courts below, in holding the accused guilty,
primarily relied on the testimonies of eight independent witnesses, the
testimony of the doctor PW11, and the statement of the accused under
Section 313 Cr.P.C.
       OUR VIEW
     7. Awarding the punishment of life imprisonment requires due
appreciation of evidence and cannot be awarded mechanically and in a
perfunctory manner. The law requires that the High Court, must, only after
re-appreciation of evidence confirm or overturn the findings of fact returned
by the Trial Court. Recently, this Court in Geeta Devi v. State of U.P.3 has
succinctly dealt with this issue.



3     2022 SCC OnLine 57 (2-Judge Bench)
    INDRAKUNWAR v. THE STATE OF CHHATTISGARH                             965
               [SANJAY KAROL, J.]

      8. The judgment under challenge, which we are constrained to observe,
makes only general and sketchy observations, unlike the appreciation of
evidence as is required by law, in respect of testimonies of the witnesses
and other evidence. This approach cannot be appreciated, especially when
the conviction rendered is for a serious offence, that is, Section 302 IPC. In
Geeta Devi (supra), the Court found it fit to remand the matter to the High
Court for consideration afresh, but in the present case, such course will not
be prudent given that this appeal dates back to the year 2010. Hence, we
proceed to examine the evidence on record.
      9. The testimony of Jai Mangal Singh – PW1, who was Sarpanch at the
time of the incident, also reveals that he was informed by a villager about
the dead body of a newborn child found in the pond but did not know to
whom it belonged to. Also, he had no knowledge about the pregnancy of
the accused. He did not know when and by whom the child was thrown. In
his cross-examination, he stated that there were houses belonging to other
people near the dabri where the dead body was found. Significantly, we find
none of them stands examined, testifying to the presence of the accused near
the pond, nor does this witness testify to such an effect.
      10. Suraj Kumar Singh - PW2, who saw the dead body of a child in
his dabri, admits the place to be open from all sides, having access by all.
He further deposes that he did not see any woman, much less the accused,
throw the child.
     11. Rambaran Singh -PW3, who was informed by PW2 of the dead
body of a child lying in the dabri, admits having no knowledge as to whom
the child belonged to. His testimony reveals the reason for suspicion and
doubting the accused, for she being the only one without a husband.
      12. Smt. Sumitra - PW4, in her testimony, only discloses the factum
of the accused being pregnant. The testimonies of PW5 and PW6 are also
to similar effect.
      13. Similarly, though, Smt. Rambai - PW7 denies any knowledge of
the accused being pregnant but only adds that the accused’s body looked
as though she had just delivered a child. However, the latter part is denied
by PW8.
966           SUPREME COURT REPORTS                          [2023] 14 S.C.R.


     14. The testimony of the Investigating Officer - PW10 is only to the
effect of spot verification and conduct of procedural formalities.
      15. PW11 is the Medical Officer who examined the child’s dead body
and the accused person. She gave her opinion that the child was delivered
prematurely, i.e., prior to 9 months. She also stated that the child died within
45 to 50 hours of the medical examination, and its death was homicidal in
nature. On examination, she found the accused to be physically weak. She
admitted not to have mentioned as to whether the child had died before or
after birth. She did not even mention if the child belonged to the accused
person.
      16. Thus, none of these witnesses could prove, much less beyonda
reasonable doubt, the prosecution case of the accused having thrown the
child in the dabri after delivery or having caused the death.
      17. In her defense, the convict-appellant categorically denied the
accusation of having killed any child, much less the child in question.
She states that Baiga Gond, who had fathered the child she was carrying,
in an endeavor to get rid of the child, forcibly tried to have her take some
medicine. He pushed her into ‘Suraj ki dabri’ on her refusal, leading to her
miscarriage. The further defence set up by her was that she had not killed
the child and was being falsely implicated.
      18. A perusal of the statement of the convict-appellant gives rise to
the question as to whether she had admitted her guilt? Whether upon such
a statement, the onus on the prosecution stood shifted? Whether it could be
said that the convict-appellant was obliged to disclose her pregnancy, if so,
and what became of such child that she was allegedly carrying?
     19. Further, what must be considered is whether the convict-appellant
has no right of privacy of not disclosing the prosecution or the Court as to
what happened to her child which she was carrying in her womb, particularly
when the prosecution failed to discharge the initial burden and onus of
establishing the deceased, in any manner to be related to the accused?
     20. Is not, inherent in a lady the right of confidentiality and privacy in
matters concerning her personal life, of not disclosing any circumstances,
as may be required by law?
    INDRAKUNWAR v. THE STATE OF CHHATTISGARH                                967
               [SANJAY KAROL, J.]

     LAW ON PRIVACY
      21. In searching for answers to the questions above, it is pertinent for us
to intervene when structures of injustice and persecution deeply entrenched
in patriarchy are destructive of constitutional freedom.4 The right to privacy
is the underpinning of human dignity and is fundamental to the realization
of human rights.
      22. Right to Privacy is regarded as one of the most crucial human
rights in the contemporary day. In many different countries and civilizations,
privacy is cherished. It is also protected by numerous international and
regional human rights treaties, including the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights,
and many more.
     23. The importance of this right was underscored by U.S. Supreme
Court as far as the year 19585 by quoting William Pitt, Earl of Chatham:
     “The poorest man may in his cottage bid defiance to all the force of
     the Crown. It may be frail; its roof may shake, the wind may blow
     through it, the storms may enter; the rain may enter but the King of
     England cannot enter, all his forces dare not cross the threshold of the
     ruined tenement.”
     24. In K.S. Puttaswamy (Privacy-9J.) v. Union of India,6 this Court,
speaking through Dr. D.Y. Chandrachud, J. (as the learned Chief Justice then
was) while discussing the essential nature of privacy observed:
     “297. What, then, does privacy postulate? Privacy postulates the
     reservation of a private space for the individual, described as the
     right to be let alone. The concept is founded on the autonomy of
     the individual. The ability of an individual to make choices lies at
     the core of the human personality. The notion of privacy enables
     the individual to assert and control the human element which is
     inseparable from the personality of the individual. The inviolable
     nature of the human personality is manifested in the ability to make


4   Joseph Shine v Union of India 2019 3 SCC 39 (5-Judge Bench)
5   Miller v United States 357 U.S. 301(1958)
6   (2017) 10 SCC 1
968           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      decisions on matters intimate to human life. The autonomy of the
      individual is associated over matters which can be kept private.
      These are concerns over which there is a legitimate expectation
      of privacy. The body and the mind are inseparable elements of the
      human personality. The integrity of the body and the sanctity
      of the mind can exist on the foundation that each individual
      possesses an inalienable ability and right to preserve a private
      space in which the human personality can develop. Without the
      ability to make choices, the inviolability of the personality would be
      in doubt. Recognising a zone of privacy is but an acknowledgment
      that each individual must be entitled to chart and pursue the course
      of development of personality. Hence privacy is a postulate of human
      dignity itself. Thoughts and behavioural patterns which are intimate
      to an individual are entitled to a zone of privacy where one is free of
      social expectations. In that zone of privacy, an individual is not judged
      by others. Privacy enables each individual to take crucial decisions
      which find expression in the human personality. It enables individuals
      to preserve their beliefs, thoughts, expressions, ideas, ideologies,
      preferences and choices against societal demands of homogeneity.
      Privacy is an intrinsic recognition of heterogeneity, of the right of the
      individual to be different and to stand against the tide of conformity
      in creating a zone of solitude. Privacy protects the individual from
      the searching glare of publicity in matters which are personal to his
      or her life. Privacy attaches to the person and not to the place where
      it is associated. Privacy constitutes the foundation of all liberty
      because it is in privacy that the individual can decide how liberty
      is best exercised. Individual dignity and privacy are inextricably
      linked in a pattern woven out of a thread of diversity into the
      fabric of a plural culture.
      298. Privacy of the individual is an essential aspect of dignity.
      Dignity has both an intrinsic and instrumental value. As an intrinsic
      value, human dignity is an entitlement or a constitutionally protected
      interest in itself. In its instrumental facet, dignity and freedom are
      inseparably intertwined, each being a facilitative tool to achieve
      the other. The ability of the individual to protect a zone of privacy
      enables the realisation of the full value of life and liberty. Liberty has
    INDRAKUNWAR v. THE STATE OF CHHATTISGARH                                      969
               [SANJAY KAROL, J.]

     a broader meaning of which privacy is a subset. All liberties may not
     be exercised in privacy. Yet others can be fulfilled only within a private
     space. Privacy enables the individual to retain the autonomy of the
     body and mind. The autonomy of the individual is the ability to
     make decisions on vital matters of concern to life. Privacy has not
     been couched as an independent fundamental right. But that does not
     detract from the constitutional protection afforded to it, once the true
     nature of privacy and its relationship with those fundamental rights
     which are expressly protected is understood. Privacy lies across the
     spectrum of protected freedoms. …The intersection between one’s
     mental integrity and privacy entitles the individual to freedom of
     thought, the freedom to believe in what is right, and the freedom of
     self-determination. When these guarantees intersect with gender, they
     create a private space which protects all those elements which are
     crucial to gender identity. The family, marriage, procreation and
     sexual orientation are all integral to the dignity of the individual…
     The freedoms under Article 19 can be fulfilled where the individual
     is entitled to decide upon his or her preferences. ... Dignity cannot
     exist without privacy. Both reside within the inalienable values of
     life, liberty and freedom which the Constitution has recognised.
     Privacy is the ultimate expression of the sanctity of the individual.
     It is a constitutional value which straddles across the spectrum
     of fundamental rights and protects for the individual a zone of
     choice and self-determination.”
                                                              (Emphasis supplied)
      25.. In matters concerning women, this Court has repeatedly stated
that much is left to be desired in securing constructive equality. We may
refer to what Krishna Iyer J. has stated7:
     “The fight is not for woman’s status but for human worth. The claim
     is not to end inequality of women but to restore universal justice. The
     bid is not for loaves and fishes for the forsaken gender but for cosmic
     harmony which never comes till woman comes”.



7   V.R.Krishna Iyer, Law and Life, Vikas Publishing House, New Delhi, 1979, p. 31.
970          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


     26.. We also find this Court to have recognized, in Shakti Vahini v.
Union of India8, that the right to choose a partner is a fundamental right
under Article 19 and 21 of the Constitution of India. In the celebrated case,
Shafin Jahan v. Asokan K.M.9 it was observed:-
      “84. … The choice of a partner whether within or outside marriage lies
      within the exclusive domain of each individual. Intimacies of marriage
      lie within a core zone of privacy, which is inviolable.”
      In S. Khushboo v. Kanniammal10, this Court observed:
      “46. ... While there can be no doubt that in India, marriage is an
      important social institution, we must also keep our minds open to
      the fact that there are certain individuals or groups who do not hold
      the same view. To be sure, there are some indigenous groups within
      our country wherein sexual relations outside the marital setting are
      accepted as a normal occurrence. Even in the societal mainstream,
      there are a significant number of people who see nothing wrong in
      engaging in premarital sex. Notions of social morality are inherently
      subjective and the criminal law cannot be used as a means to
      unduly interfere with the domain of personal autonomy. Morality
      and criminality are not coextensive.”
                                                       (Emphasis supplied)
      27. The essence of a woman’s fundamental right to equality and
privacy, regarding private matters of bodily and psychological integrity
is the ability to make autonomous decisions about her own body and
reproductive choices. It is entirely within the realm of privacy of a woman
to decide whether or not to bear a child or abort her pregnancy (within the
framework of law).
     28. This Court in Suchita Srivastava v. Chandigarh Admn.11,
observed that the statutory right of a woman to consent or not, to a
termination of pregnancy in accordance with the Medical Termination of


8 (2018) 7 SCC 192 (3-Judge Bench)
9   (2018) 16 SCC 368 (3-Judge Bench)
10 (2010) 5 SCC 600(3-Judge Bench)
11 (2009) 9 SCC 1 (3-Judge Bench)
    INDRAKUNWAR v. THE STATE OF CHHATTISGARH                               971
               [SANJAY KAROL, J.]

Pregnancy Act, 1971 is deduced from a woman’s right to privacy, dignity
and bodily integrity.
       29. In X v. The Principal Secretary, Health and Family Welfare
Department, Government of NCT of Delhi and Ors.12, this Court observed
that the right of a woman to become pregnant is not married to her marital
status. It is a choice irrespective thereof. In case the pregnancy is warranted,
it is equally shared by both partners. However, in case of an unwanted or
incidental pregnancy, the burden invariably falls on the pregnant woman
affecting her mental and physical health. It was held that it is the woman’s
decision alone to undergo medical termination of pregnancy particularly
when it is her mental or physical health that is in question.
      30.. Recently, this Court in XYZ v. The State of Gujarat & Ors.13
in the context of abortion reiterated that the right of every woman to
make reproductive decisions, including the decision to terminate the
pregnancy, is within her competence and authority. The right of every
woman to make reproductive choices without undue interference from
the state is central to the idea of human dignity. Deprivation of access to
reproductive healthcare or emotional and physical well-being also injures
the dignity of women.
      31. The above discussion was only to point out that the right to privacy
is inviolable. Unfortunately, the view taken and the language adopted by
both the Courts below lays to waste such a right inherent in the convict-
appellant. It is apparent that the guilt has been placed on her without any
solid foundation thereto since no relationship of any nature whatsoever could
be established between her and the deceased child discovered in the dabri.
The conclusion drawn is simply on the basis that the convict-appellant was
a woman living alone and had been pregnant (as admitted in the statement
under 313 CrPC). This, in the Court’s view, was in itself suspect since she
had been ‘deserted’ by her husband.
     32. Such a view being taken, i.e., thrusting upon a woman the guilt
of having killed a child without any proper evidence, simply because she



12 2022 SCCOnLine SC 905(3-Judge Bench)
13 Criminal Appeal No. /2023 (@ Slp (Crl.) Dy. No. 33790/2023)
972            SUPREME COURT REPORTS                               [2023] 14 S.C.R.


was living alone in the village, thereby connecting with one another two
unrelated aspects; reinforces the cultural stereotypes and gendered identities
which this Court has explicitly warned against.14
     33. Keeping in view the understanding of the principles of privacy
and the propositions of law in regard thereto, we now travel to what, by
law, may be required of the convict-appellantin her statement under Section
313 Cr.P.C.
     34. A perusal of various judgments15 rendered by this Court reveals the
following principles, as evolved over time when considering such statements.
      34.1 The object, evident from the Section itself, is to enable the accused
to themselves explain any circumstances appearing in the evidence against
them.
      34.2 The intent is to establish a dialogue between the Court and the
accused. This process benefits the accused and aids the Court in arriving
at the final verdict.
      34.3 The process enshrined is not a matter of procedural formality but
is based on the cardinal principle of natural justice, i.e., audi alterum partem.



14 In striking down Section 497 IPC, the Constitution Bench in Joseph Shine v Union of
   India (2019) 3 SCC 39 has engaged in an extensive discussion In regard to stereotypes
   and has found such stereotypes to be offending Article 14 of the Constitution of India.
15 Premchand v. State of Maharashtra (2023) 5 SCC 522 (2-Judge Bench);Jai Dev v.
   State of Punjab [AIR 1963 SC 612];Asraf Ali v. State of Assam (2008) 16 SCC 328
   (2-Judge Bench);Inspector of Customs v. Yashpal (2009) 4 SCC 769 (3-Judge Bench);
   Fainul Khan v. State of Jharkhand (2019) 9 SCC 549 (2-Judge Bench);Mohd. Firoz
   v. State of M.P. (2022) 7 SCC 443 (3-Judge Bench);Bishnu Prasad Sinha v. State of
   Assam (2007) 11 SCC 467 (2-Judge Bench; Dehal Singh v. State of H.P. (2010) 9
   SCC 85 (2-Judge Bench);Brajendrasingh v. State of M.P. (2012) 4 SCC 289 (2-Judge
   Bench);Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 (3-Judge
   Bench);Hate Singh Bhagat Singh v. State of Madhya Pradesh [1951 SCC 1060];Shamu
   Balu Chaugule v. State of Maharashtra (1976) 1 SCC 438; Paul v. State of Kerala
   (2020) 3 SCC 115 (2-Judge Bench);Kalicharan v. State of U.P. (2023) 2 SCC 583
   (2-Judge Bench);Nasib Singh v. State of Punjab (2022) 2 SCC 89 (3-Judge Bench);
   Jai Prakash Tiwari v. State of Madhya Pradesh 2022 SCC OnLine SC 966 (3-Judge
   Bench); Satbir Singh v. State of Haryana (2021) 6 SCC 1 (2-Judge Bench);Bable
   v. State of Chhattisgarh (2012) 11 SCC 181 (2-Judge Bench); andSelvi v. State of
   Karnataka (2010) 7 SCC 263 (3-Judge Bench).
    INDRAKUNWAR v. THE STATE OF CHHATTISGARH                              973
               [SANJAY KAROL, J.]

      34.4 The ultimate test when concerned with the compliance of the
Section is to enquire and ensure whether the accused got the opportunity
to say his piece.
     34.5 In such a statement, the accused may or may not admit involvement
or any incriminating circumstance or may even offer an alternative version
of events or interpretation. The accused may not be put to prejudice by any
omission or inadequate questioning.
      34.6 The right to remain silent or any answer to a question which may
be false shall not be used to his detriment, being the sole reason.
      34.7 This statement cannot form the sole basis of conviction and is
neither a substantive nora substitute piece of evidence. It does not discharge
but reduces the prosecution’s burden of leading evidence to prove its case.
They are to be used to examine the veracity of the prosecution’s case.
      34.8 This statement is to be read as a whole. One part cannot be read
in isolation.
     34.9 Such a statement, as not on oath, does not qualify as a piece of
evidence under Section 3 of the Indian Evidence Act, 1872; however, the
inculpatory aspect as may be borne from the statement may be used to lend
credence to the case of the prosecution.
     34.10 The circumstances not put to the accused while rendering his
statement under the Section are to be excluded from consideration as no
opportunity has been afforded to him to explain them.
      34.11 The Court is obligated to put, in the form of questions, all
incriminating circumstances to the accused so as to give him an opportunity
to articulate his defence. The defence so articulated must be carefully
scrutinized and considered.
     34.12 Non-compliance with the Section may cause prejudice to the
accused and may impede the process of arriving at a fair decision.
     ANSWERS TO THE QUESTIONS
    35. In light of the principles listed above, what we must consider is
whether, in explaining the purported incriminating circumstance against
974            SUPREME COURT REPORTS                       [2023] 14 S.C.R.


her, the convict-appellant ought to have disclosed, over and above denial
of any relationship with the deceased child, the specifics of her miscarriage
and its aftermath; particularly when the prosecution has failed to discharge
its burden of establishing such relationship between the deceased and the
convict -appellant.
      36. It is established that negative inferences cannot be drawn for a
question or incriminating circumstance not put to an accused while making
a statement under Section 313 Cr.P.C. Her statement, nowhere reflects an
answer to a question concerning the particulars of the child that she was
admittedly carrying but denied that the deceased was not the one recovered
from the dabri. Although there is a requirement by law to disclose the aspects
required to adjudicate in a criminal matter, such duty cannot unreasonably
and unwarrantedly step over the fundamental right of privacy.
     37. Before examining this case from the lens of circumstantial
evidence, it would be apposite to refer to the position in law.
      38. In Shailendra Rajdev Pasvan v. State of Gujarat16 this Court
observed that the courts ought to have a conscientious approach in a case
based on circumstantial evidence, and conviction ought to be recorded
only in cases where all the links of the chain are complete, pointing only
to the guilt of the accused and none else, also eliminating the element of
his innocence. Each link, unless connected together to form a chain, may
suggest suspicion, but the same, in itself, cannot take the place of proof and
will not be sufficient to warrant the conviction of the accused.
      39. In Munikrishna v. State 17 this Court, while following the
parameters laid down in Hanumant Govind Nargundkar v. State of
Madhya Pradesh18 and Sharad Birdhichand Sarda19, observed that in
cases based on circumstantial evidence, heavy onus and duty is cast upon
the prosecution to prove its case beyond reasonable doubt.



16    (2020) 14 SCC 750 (3-Judge Bench)
17    2022 SCC OnLine SC 1449 (3-Judge Bench)
18    (1952) 2 SCC 71 (3 Judge Bench)
19    (1984) 4 SCC 116(3-Judge Bench)
    INDRAKUNWAR v. THE STATE OF CHHATTISGARH                               975
               [SANJAY KAROL, J.]

      40. In Sharad Birdhichand Sarda (supra), while discussing the effect
of non-explanation, this Court observed that the absence of explanation or
a false explanation will amount to an additional link to complete the chain
provided the following essential conditions must be satisfied, that is to say,
various links in the chain of evidence led by the prosecution have been
satisfactorily proved;it should only point to the guilt of the accused with
reasonable definiteness, and proximity of the circumstance with the time
and situation.
      41. It is a matter of record that none of the witnesses has seen the
convict-appellant throwing the deceased child into the dabri; as hitherto
observed, no conclusive proof, of any nature, of relationship had been
put forth by the prosecution; no evidence has been led to cast doubt upon
the version of the convict. The statement of the doctor is silent on the
death of the deceased having occurred prior to or after birth, although in
examination in chief, the doctor has deposed that the death of the deceased
child was homicidal in nature; however, in the cross-examination, it is
admitted that such fact does not form part of the record, thereby calling
into question the conclusion itself as it is a vital piece of information that
has been omitted.
      42. Having considered the gaps mentioned above in the prosecution
case, we cannot agree with the learned Courts below that the circumstances
conclusively point to the guilt of the convict-appellant, Indrakunwar.
      43. Given the foregoing discussion, we find the conviction recorded
against the convict-appellant to be entirely based on mere presumption, with
the actual evidence on record failing to establish the prosecution case much
less beyond reasonable doubt. We are constrained to observe that the High
Court has confirmed the view of the Trial Court awarding life imprisonment
without supplying any cogent reasons therefor.
      44. In that view of the matter, the conviction returned by the Trial Court
in Session Trial No.52 of 2004 and affirmed by the High Court in Criminal
Appeal No.605 of 2005 is quashed and set aside. The convict-appellant is
acquitted of all charges and, if in jail in connection with the instant lis, is
set at liberty forthwith. Her bail bonds stand discharged.
976            SUPREME COURT REPORTS                         [2023] 14 S.C.R.


      45. The questions raised in the instant case are answered as above.
      46. The appeal is allowed in the aforesaid terms.
      47. Pending Interlocutory application(s), if any, shall stand disposed of.


Headnotes prepared by:                                            Appeal allowed.
Ankit Gyan