(1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:
Provided that—
(a)he shall not be called as a witness except on his own request in writing;
(b)his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.
(2) Any person against whom proceedings are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as a witness in such proceedings:
Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject or any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry.
Comment
The purpose of Section 313 of the Code is set out in its opening words – ‘for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.’ In Hate Singh, Bhagat Singh vs. State of Madhya Pradesh, AIR 1953 SC 468) it has been laid down by Bose, J., that the statements of accused persons recorded under Section 313 of the Code ‘are among the most important matters to be considered at the trial’. It was pointed out that the statements of the accused recorded by the committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there.
The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.[(2009) 6 SCC 583]
Undoubtedly, the importance of a statement under Section 313 of the Code of Criminal Procedure in so far as the accused is concerned, can hardly be minimized. This statutory provision is based on the rules of natural justice for an accused must be made aware of the circumstances being put against him so that he can give a proper explanation and to meet that case. In Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 it was observed that:
the statements of an accused person recorded under Ss.208,209 and 342 are among the most important matters to be considered at a trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in Indian to take the place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in evidence and treated as evidence and be duly considered at the trial.
This means that they must be treated like any other piece of evidence coming from the mouth of a witness and matters in favour of the accused must be viewed with as much deference and given as much weigh as matters which tell against him. Nay more. Because of the presumption of innocence in his favour even when he is not in a position to prove the truth of his story, his version should be accepted if it is reasonable and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false. We feel that this fundamental approach has been ignored in this case.
It must be highlighted that the judgment in this case was rendered in the background that in the absence of any provision in law to enable an accused to give his part of the story in court, the statement under Section 342 (now 313 new code) was of the utmost important. The aforesaid observations have now been somewhat whittled down in the light of the fact that Section 315 of the Code of Criminal Procedure now makes an accused a competent witness in his defence. In Vikramjit Singh v. State of Punjab (2006) 12 SCC 306, supreme Court again dwelt on the importance of the 313 statement but we see from the judgment that it was primarily based on an overall appreciation of the evidence and the acquittal was not confined only to the fact that the statement of the accused had been defectively recorded. In Ranvir Yadav’s case (supra) the Court has undoubtedly observed that even after the incorporation of Section 315 in the Code of Criminal Procedure, the position remains the same, (in so far as the statements under Section 313 are concerned) but we find that the judgment was one of acquittal by the Trial Court and a reversal by the High Court and this was a factor which had weighed with this Court while rendering its judgment. In any case the latest position in law appears to be that prejudice must be shown by an accused before it can be held that he was entitled to acquittal over a defective and perfunctory statement under Section 313. [AIR 2011 SC 1748]
In Vijendrajit Ayodhya Prasad Goel v. State of Bombay, AIR 1953 SC 247 and S.P. Bhatnagar and Anr. v. The State of Maharashtra, AIR 1979 SC 826. This Court in the former case has observed that a statement under Section 342 of the Code of Criminal Procedure (now Section 313) cannot be regarded as evidence. The observations in the latter case are equally pertinent wherein it has been held that a defence taken by one accused cannot, in law, be treated as evidence against his co-accused. As already observed, Section 315 of the Code of Criminal Procedure now makes an accused a competent witness in his defence.
