Examination of Accused as a Defense Witness: Purpose and Procedure

Examination of Accused as a Defense Witness: Purpose and Procedure | Overview

• Introduction
• Accused as a Competent Witness
• Scope of Section 315
• Procedure to Examine the Accused as Witness
• Merits and Demerits of Examining the Accused

Introduction

This article discusses the Purpose and Procedure of Examination of Accused as a Defense Witness. According to Section 118 of the Indian Evidence Act, 1872 any person who is not disabled from understanding the questions put to him due to his extreme elderly age or tender years or childhood can be a competent witness in a court of law.

This provision entails that any person irrespective of his nature and role in the trial can be a witness. Now, criminal law constitutes three types of witnesses; i.e. Prosecution Witness, Defense Witness and Court Witness.

A person whom the prosecutor proposes to examine in the court for the purpose of giving evidence supposedly in his favour is called the prosecution witness, except the complainant or informant whose rank is of charge-sheet witness but he appears for the prosecutor.

On the contrary, the witnesses whom the accused proposes to examine in the court for giving evidence on his behalf and in his favour are called Defense Witnesses. Besides these, under Section 311, the court is empowered to call any person who is related to the case or acquainted with the facts of the case as a witness to testify and answer the questions that the court puts to him. Such person(s) is called Court Witness.

Accused as a Competent Witness

As already stated under section 118, every person is a competent witness if s/he can understand the questions put to her/him and the answers that s/he gives to the court and the consequences of such answers. Therefore, an accused is a competent witness according to the Evidence Act.

This is also contemplated under Section 315 of the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’). This provision avers that a person who is accused of an offence can be a competent witness for the defence and maybe examined in a court of law under oath.

Scope of Section 315

The provision gives that a blamed individual can be a lawful and proficient witness for the defence and like some other observer he is qualified for giving proof on vow in disproof of the body of evidence brought against him by the arraignment.

Where the accused person deliberately offers himself to be inspected as a Defense witness, the indictment is qualified to look at him and the proof so acquired might be utilized against other persons who have accused and/or tried with him, i.e. the accomplices.

In any case, the section bars or disables the Court from drawing any unpropitious derivation from the non-assessment of the accused person as a Defense witness. The superior courts have decreed in various cases that if a denounced person alongside others, willfully steps in the dock or the witness box as a competent witness, he is liable to interrogation by the prosecuting counsel and the proof brought out in such questioning can be utilized against his co-accused.

On the off chance that such an observer implicates his co-accused who are together tried with him, they reserve a privilege to interrogate him, on the off chance that they so want.

In Gajendra Singh v. State of Rajasthan[1], the accused, in the wake of getting his averments recorded under Section 313, got himself examined by the Magistrate and subsequently during the trial as a Defense witness under Section 315 of the Code.

His solicitation to create get certain documents marked by the court and brought on record was turned down by the trial court which was later reversed by the apex court. The Supreme Court observed that under Section 315, the accused is not only entitled to be examined as a witness but has all rights to produce any document as he deems necessary to substantiate his claims as to any other witnesses.

Procedure to Examine the Accused as Witness

The provision lays down certain specific procedure that needs to conformed to allow the examination of an accused as a witness in the court. The procedure can be explained in the form of enlisted pointers for brevity:

1. The Person must be Accused: It means that mere lodging of FIR or complaint does not amount to accusation against the person. The police must have conducted an investigation and on the basis of the investigation, there must be some reason to suspect his involvement in the offence committed. The person must be specifically named as an accused in the Final Report, i.e. the charge-sheet submitted by the investigating authority after the investigation is completed. Only when the person is named as an accused, s/he can be examined as a witness for defence under Section 315.
2. The Accused must be tried before a Criminal Court: this entails that the trial must be conducted before a criminal court. The provision does not mention specifically which courts but uses the general phrase ‘criminal court’. It means the section is valid when the trial is before the Magistrate’s court or Sessions court or even any CBI court or special court established for a particular prosecution. Thus, the vital requirement is that the trial must be for a criminal offence.
3. The Accused must be a Competent Witness: It connotes that the accused must be able to comprehend the questions which are put to him in the court by the counsels or the judge. The person must be able to understand the question, the nature of the question, the purpose behind asking such question and must be proficient to answer the question with utmost ease and in his favour or at least not in his adversity. If the accused is a minor or a lunatic or a person otherwise of an unsound mind, the court must satisfy itself that s/he is able to understand the questions and answers.
4. The Accused can Appear only for Defense: Under Section 315, the accused can be examined only as a Defense Witness. It means if the Defense does not want to examine the accused, the prosecution cannot ask any question to the accused and the case of the prosecution has to depend on its own witness and other defence witnesses. The purpose of the section is to give one last opportunity to the accused to explain himself or to bring any evidence he thinks is vital to defend him. Therefore, the prosecution cannot use this provision to cross-examine the accused unless he has been examined as a defense witness.
5. The Accused must give Written Consent to be Examined: The law requires that the accused must make a written request to the court to allow him to be examined as a witness for the defense. If the accused is examined as Defense Witness, it gives the prosecution all rights to cross-examine the accused on whatever he has stated in the court. The presumption of criminal law is always in favour of the innocence and therefore, subjecting the accused to cross-examination may be adverse for the accused’s case. Therefore, written permission of the court is necessary to examine the accused.
6. The Accused need not take Oath: The section contemplates that the accused “may” be examined on oath. The word ‘may’ gives discretion to the defence to decide whether he wants to examine the accused on oath or not. In general, practice, when the accused is examined to produce any document before the court, he need not be examined on oath because the contents of the document cannot be proved by his oral testimony even if given under oath.

Merits and Demerits of Examining the Accused

In general practice, an accused person is never examined in the court as a Defense witness. All he wants to say is averred during the 313 examinations by the Magistrate, save if there is urgent need or necessity to examine him in the court. Unless grave prejudice will be caused to the accused or when there is no chance of accused being acquitted and the accused wants to try his last resort of requesting the court himself, an accused is never examined in the court.

Examining the accused in court would subject him to rigorous cross-examination of the prosecution who sits like a predator waiting for this opportunity to grab its prey when it is at its weakest.

The prosecutor can have hundreds of questions for the accused; not only with respect to his involvement in the offence but also about the involvement of the co-accused as well. Any statement that the accused makes in his capacity as a charged person, can be used against his accomplices to entrap them and convict them.

Moreover, when the accused is examined in the court as a witness on oath, if he makes false assertions, this will subject him to penalty or prosecution for perjury and if he is not examined on oath, it affects the reliability of the averments made by him.

Further, the law does not allow the court to presume anything unfavourable nor does it allow the prosecutor to comment on the fact that the accused has not been examined as a witness by the defence. Therefore, the provision is very rarely used in practice but is of significant value when used.

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References

1. V. Kelkar, Lectures on Criminal Law (8th ed. 2016).
2. D. Basu, Criminal Procedure (6th ed. 2014).

[1] Gajendra Singh v. the State of Rajasthan, 1995 CriLJ 3347

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