Section 353 of BNSS, 2023 — Accused Person to be Competent Witness

Introduction

Section 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the right of an accused person to appear as a witness in their own defence. The provision recognises that an accused is competent to give evidence on oath to disprove the charges against them or against another person charged with them at the same trial.

However, this is a right of the accused and not a compulsory duty. The accused can choose whether to enter the witness box. The Court or prosecution cannot compel the accused to give evidence.

Section 353 substantially carries forward the principle contained in Section 315 of the Code of Criminal Procedure, 1973.

Meaning of Section 353

Section 353 allows a person accused of an offence before a Criminal Court to become a witness for the defence. The accused may give evidence on oath in order to disprove the charges brought against them or against a co-accused being tried in the same proceeding.

The provision therefore gives the accused an opportunity to personally place their version of the facts before the Court.

The important point is that the accused does not automatically become a witness merely because they are facing a criminal trial. They can be called as a witness only when they themselves request to do so in writing.

Statutory Basis

Section 353 of BNSS contains two main parts:

1. Section 353(1) deals with an accused person appearing as a witness in their defence.
2. Section 353(2) deals with persons against whom certain preventive or security proceedings have been instituted and permits them to offer themselves as witnesses.

Section 353(1): Accused as a Witness

Under Section 353(1), any person accused of an offence before a Criminal Court is a competent witness for the defence.

The accused may give evidence on oath for the purpose of disproving:

• the charges made against them; or
• the charges made against any person charged together with them at the same trial.

This means that the accused has the option of personally entering the witness box and presenting evidence in support of the defence.

Written Request of the Accused

The accused cannot be compelled to appear as a witness.

Section 353(1)(a) specifically provides that the accused shall not be called as a witness except on their own request in writing.

Therefore:

• the prosecution cannot force the accused to become a witness;
• the Court cannot compel the accused to give evidence as a defence witness;
• the decision must come from the accused themselves; and
• the request must be made in writing.

Failure of the Accused to Give Evidence

Section 353(1)(b) protects an accused who chooses not to enter the witness box.

The failure of the accused to give evidence:

• cannot be commented upon by the prosecution;
• cannot be commented upon by the Court;
• cannot be used to create a presumption against the accused; and
• cannot be used to create a presumption against another person charged together with the accused at the same trial.

Thus, exercising the right to remain silent as a witness cannot itself be treated as evidence of guilt.

Voluntary Nature of the Right

The central principle of Section 353 is that giving evidence is voluntary.

The accused has two choices:

• they may request in writing to give evidence and enter the witness box; or
• they may choose not to give evidence.

If the accused chooses not to testify, that decision cannot be treated as an admission of guilt.

This protection is particularly important because the burden of proving the prosecution’s case ordinarily remains on the prosecution.

Section 353(2): Persons in Certain Proceedings

Section 353(2) extends the right to offer oneself as a witness to certain persons against whom proceedings have been instituted before a Criminal Court.

It applies to proceedings under:

• Section 101;
• Section 126;
• Section 127;
• Section 128;
• Section 129;
• Chapter X;
• Part B of Chapter XI;
• Part C of Chapter XI; and
• Part D of Chapter XI.

A person against whom such proceedings have been instituted may offer themselves as a witness in those proceedings.

Protection in Certain Proceedings

There is an additional protection concerning proceedings under Sections 127, 128 and 129.

In such proceedings, failure of the person to give evidence cannot:

• be made the subject of comment by any party or the Court; or
• give rise to any presumption against that person or another person proceeded against together with them at the same inquiry.

Important Principles

1. The Accused is a Competent Witness

Section 353 expressly recognises the accused as a competent witness for the defence.

2. Giving Evidence is Optional

The accused is not required to give evidence. It is a voluntary choice.

3. Written Request is Necessary

The accused can be called as a witness only upon their own request in writing.

4. No Adverse Comment for Not Testifying

The Court and the parties cannot comment adversely on the accused’s failure to give evidence in circumstances covered by the provision.

5. No Presumption of Guilt

Failure to enter the witness box cannot by itself create a presumption of guilt against the accused.

6. Evidence is Given on Oath

When the accused chooses to become a witness under Section 353, they may give evidence on oath.

Section 353 and the Right Against Self-Incrimination

Section 353 should also be understood in the context of Article 20(3) of the Constitution of India, which protects a person from being compelled to be a witness against themselves.

The provision does not make testimony by the accused compulsory. Instead, it permits the accused to voluntarily become a witness for the defence.

Therefore, Section 353 operates as a right available to the accused, rather than a mechanism for compelling self-incriminating testimony.

Section 353 and Section 351 BNSS

Section 351 BNSS deals with the power to examine the accused, whereas Section 353 deals with the accused voluntarily becoming a witness for the defence.

These provisions should not be confused.

Section 351

The Court may examine the accused for the purpose of explaining circumstances appearing in the evidence against them.

Section 353

The accused may voluntarily offer themselves as a witness for the defence and give evidence on oath.

The two provisions serve different procedural purposes.

Section 353 and CrPC

The corresponding provision under the Code of Criminal Procedure, 1973 was Section 315, titled “Accused person to be competent witness.”

The basic principle has been carried forward under BNSS, with Section 315 of the CrPC corresponding to Section 353 of BNSS.

The principal change is the renumbering and updating of the cross-referenced provisions to correspond with the structure of BNSS.

The substantive principle remains substantially the same: an accused may voluntarily become a competent witness for the defence, but cannot be compelled to testify.

Important Case Law

Dehal Singh v. State of Himachal Pradesh

The Supreme Court considered the significance of an accused examining themselves as a witness under the corresponding Section 315 of the CrPC.

The Court recognised the distinction between a statement made by an accused during examination under the criminal procedure law and evidence given by the accused as a witness on oath.

The decision is relevant to Section 353 because it illustrates that where an accused seeks to discharge a burden through their own testimony, a statement made merely during examination of the accused is not automatically equivalent to sworn testimony as a defence witness.

The case was decided under the CrPC, but its principle concerning the accused’s voluntary appearance as a defence witness remains relevant to the substantially corresponding provision in Section 353 BNSS.

Constitutional Connection

Article 20(3)

Article 20(3) provides protection against compelled self-incrimination.

Section 353 is consistent with this constitutional safeguard because the accused cannot be compelled to enter the witness box. The decision to become a witness must originate from the accused.

Article 21

The provision also operates within the broader constitutional requirement of a fair criminal trial under Article 21. Allowing an accused to voluntarily give evidence in their defence provides an additional opportunity to explain their case before the Court.

Example

Suppose A is accused of causing grievous injury to B. During the trial, A believes that personal evidence from A would establish that A was somewhere else when the incident occurred.

A may submit a written request to the Court to appear as a defence witness and give evidence on oath.

However, if A decides not to enter the witness box, the Court cannot treat A’s failure to testify as an admission of guilt merely because A chose not to give evidence.

Common Confusions

Can the prosecution force the accused to become a witness?

No.

The accused can be called as a witness only on their own request in writing.

Can the Court make an adverse comment because the accused did not testify?

No.

Section 353 protects the accused from adverse comment based on their failure to give evidence.

Does the accused have a right to give evidence?

Yes.

An accused person is a competent witness for the defence and may give evidence on oath.

Is the accused automatically a witness after being charged?

No.

The accused becomes a defence witness only if they voluntarily choose to do so in accordance with Section 353.

Is Section 353 the same as examination of the accused by the Court?

No.

Section 351 concerns examination of the accused, whereas Section 353 concerns the accused voluntarily becoming a witness for the defence.

Topic at a Glance

• Section: 353, BNSS, 2023
• Subject: Accused person to be competent witness
• Corresponding CrPC provision: Section 315
• Nature: Voluntary right of the accused
• Written request: Required
• Evidence: May be given on oath
• Compulsion: Not permitted
• Failure to testify: Cannot by itself result in adverse comment or presumption in the situations specified by the section
• Constitutional connection: Article 20(3) and Article 21
• Related provision: Section 351 BNSS concerning examination of the accused

Quick Revision

• Section 353 BNSS deals with the accused person being a competent witness.
• The accused may give evidence on oath in their own defence.
• The accused may also give evidence to disprove charges against a co-accused being tried at the same trial.
• The accused cannot be compelled to become a witness.
• A written request from the accused is necessary.
• Failure to give evidence cannot be made the subject of adverse comment or create a presumption against the accused in the circumstances specified by Section 353.
• Section 353 substantially corresponds to Section 315 of the old CrPC.
• Section 351 and Section 353 are different: Section 351 concerns examination of the accused, while Section 353 concerns voluntary defence testimony.
• Article 20(3) provides the constitutional protection against compelled self-incrimination.
• The provision supports the accused’s opportunity to present their own defence.

ALSO READ: Section 352 – Oral arguments and memorandum of arguments

Conclusion

Section 353 BNSS recognises an accused person’s right to voluntarily become a witness for the defence. It balances this right with protection against compelled testimony by requiring a written request from the accused before they can be called as a witness. The provision also ensures that choosing not to testify does not, by itself, become a ground for adverse comment or an adverse presumption in the circumstances covered by the section. It therefore forms an important safeguard within the framework of a fair criminal trial.