Accused as a Competent Witness under Section 353 BNSS and Section 315 CrPC: Scope, Safeguards, and Judicial Interpretation
By Advocate Avichal Pandey, Allahabad High Court
The criminal justice system is founded on the principle that every accused person is presumed innocent until proven guilty. At the same time, the law recognizes that an accused may wish to personally enter the witness box and present evidence in support of his defence. To balance these considerations, the legislature has enacted provisions that permit an accused person to testify voluntarily while protecting him from any form of compulsion.
Section 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which corresponds to Section 315 of the Code of Criminal Procedure, 1973 (CrPC), embodies this principle by treating an accused as a competent witness for the defence.
Historical Background
Traditionally, under common law principles, an accused person was not considered a competent witness in his own trial. The rationale was that compelling an accused to testify could undermine the privilege against self-incrimination. Over time, criminal jurisprudence evolved to recognize that an accused should have the freedom to present his version of events directly before the court if he so chooses.
The Indian legislature adopted this progressive approach through Section 315 CrPC, now substantially retained in Section 353 BNSS.
Legal Framework
Section 353 BNSS
The provision enables an accused person to become a witness for the defence and give evidence on oath in disproof of the charges levelled against him or any co-accused.
However, this right is subject to important safeguards:
1. The accused cannot be compelled to testify.
2. A written request must be made by the accused expressing his desire to depose.
3. Failure to enter the witness box cannot be treated as evidence of guilt.
4. The prosecution cannot comment adversely merely because the accused chooses to remain silent.
These safeguards preserve the constitutional protection against self-incrimination guaranteed under Article 20(3) of the Constitution of India.
Competency versus Compellability
A crucial distinction exists between being a competent witness and being a compellable witness.
A competent witness is legally capable of giving evidence before the court. A compellable witness is one who can be legally forced to testify.
Section 353 BNSS makes the accused a competent witness but not a compellable one. Therefore, the choice to testify remains entirely voluntary.
This distinction ensures that the constitutional right to silence remains intact.
Requirement of a Written Request
One of the notable features of the provision is the requirement that the accused must make a written request before being examined as a witness.
The purpose behind this requirement is twofold:-
●To ensure that the decision is voluntary.
●To prevent allegations that the accused was pressured into giving evidence.
Once the request is made, the court may permit the accused to enter the witness box and depose on oath.
Effect of Testimony by the Accused
When an accused chooses to testify:-
●He becomes subject to cross-examination like any other witness.
●His credibility may be tested by the prosecution.
●His testimony is evaluated according to ordinary principles of evidence.
The court is not bound to accept the accused's statement merely because it comes from him. Rather, it assesses the testimony in light of the entire evidentiary record.
At the same time, if the accused provides a plausible and credible explanation that creates reasonable doubt, the benefit must go to him.
No Adverse Inference from Silence
●An equally important safeguard under Section 353 BNSS is that an accused's refusal to testify cannot automatically lead to an adverse inference.
●The burden of proving guilt remains on the prosecution throughout the trial. The accused is under no legal obligation to establish his innocence.
●Courts have repeatedly emphasized that silence by itself cannot substitute proof.
However, where the prosecution establishes strong incriminating circumstances and the accused fails to explain facts that are especially within his knowledge, the court may consider such silence while appreciating the evidence. Even then, conviction cannot rest solely on the accused's failure to testify.
Important Judicial Pronouncements
1.P.N. Krishna Lal v. Government of Kerala (1995)
In this landmark decision, the Supreme Court recognized that an accused is a competent witness and may voluntarily waive the protection available under Article 20(3) by choosing to depose in his own defence.
The judgment clarified that the constitutional protection is against compulsion and not against voluntary testimony.
2.Raj Kumar Singh v. State of Rajasthan (2013)
The Supreme Court reiterated that an adverse inference cannot be drawn merely because the accused does not enter the witness box.
The Court observed that such an inference becomes relevant only when the prosecution has first established a strong chain of incriminating circumstances and the accused fails to provide an explanation for facts particularly within his knowledge.
The decision reinforces the principle that the prosecution's burden never shifts completely onto the accused.
3.Relevance under the BNSS Regime
With the coming into force of the Bharatiya Nagarik Suraksha Sanhita, 2023, the legislative intent remains unchanged. Section 353 BNSS continues to preserve the delicate balance between:-
●The accused's right to defend himself;
●The constitutional guarantee against self-incrimination;
●The prosecution's burden to prove guilt beyond reasonable doubt.
The provision ensures that the accused has an opportunity to personally explain circumstances against him while simultaneously protecting him from coercion.
Practical Significance for Criminal Trials
In many criminal cases, particularly those involving documentary evidence, financial transactions, family disputes, and circumstantial evidence, the accused may find it beneficial to testify and place his version directly before the court.
However, such a decision must be taken cautiously because once the accused enters the witness box, he becomes vulnerable to rigorous cross-examination by the prosecution.
The choice should therefore be made only after careful legal assessment and strategic consideration of the evidence on record.
Conclusion
Section 353 BNSS, corresponding to Section 315 CrPC, is an important procedural safeguard in Indian criminal law. It empowers an accused person to become a witness in his own defence while preserving the fundamental right against self-incrimination.
The provision reflects a balanced approach: it grants the accused the freedom to speak but protects him from being compelled to do so. Judicial decisions have consistently upheld that silence cannot by itself establish guilt and that the burden of proof remains with the prosecution.
As criminal procedure in India transitions from the CrPC to the BNSS framework, the principle underlying this provision continues to serve as a cornerstone of fair trial rights, ensuring that justice is administered without compromising constitutional liberties.
Author: Avichal Pandey
Advocate
Allahabad High Court
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