Law & Policy
The Statement That Is Not Evidence: What a Criminal Trial Does With the Accused's Own Account
23 August 2026 · 14 min read
Of everyone whose account of the facts is heard in a criminal trial, one gives it without an oath, without any penalty for stating it falsely, and without the law calling what he says evidence. That person is the accused, and the occasion is his examination by the court after the prosecution witnesses have been heard.
In practice the occasion is treated as an interruption. A list of questions is prepared, often from a template, the circumstances appearing in the evidence are read out in compressed form, and the answers come back as denials — false, incorrect, I have been implicated. The statement is signed, the file moves to defence evidence, and nothing about the exercise suggests that anything turned on it.
The drafting suggests otherwise. Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is a short provision of five sub-sections, and the first thing to notice about it is how much of its length is spent taking things away. No oath. No liability for a false answer. No place in the definition of evidence. A provision drafted mostly as a set of exclusions is usually protecting a premise, and it is worth identifying which one.
What the section provides
Section 351(1) states the purpose before it states the power. In every inquiry or trial, "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him", the court may at any stage, without previously warning the accused, put such questions to him as the court considers necessary; and shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case. A proviso allows the mandatory examination to be dispensed with in a summons-case where the court has already dispensed with the accused's personal attendance.
The remaining sub-sections are subtractions. No oath shall be administered to him. He shall not render himself liable to punishment by refusing to answer, or by giving false answers. The answers may be taken into consideration in that inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which those answers may tend to show he has committed. The court may take the help of the prosecutor and defence counsel in framing the questions, and may permit a written statement to be filed as sufficient compliance.
The section corresponds to Section 313 of the Code of Criminal Procedure, 1973. In a recodification that renumbered the whole of criminal procedure and rewrote a good deal of it, this provision was carried across without change of substance — five sub-sections in the same order, doing the same work.
Why there is no oath
The absence of an oath is usually explained as a concession. It is better read as a consequence.
Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. Whatever the outer limits of that protection, it settles at least this: the court cannot require the accused to answer. An oath is not a solemnity attached to speech for its own sake. It is the device by which a statement becomes punishable if false, and it is administered to persons who are under an obligation to answer in the first place. Administering one to a man who may decline to answer at all would attach a sanction to nothing.
So sub-sections (2) and (3) are the same decision expressed twice. Once the answer cannot be compelled, the oath has no work to do, and once the oath is gone, perjury has no foothold. The section does not confer an indulgence on the accused. It declines to build a machinery that Article 20(3) has already disabled.
The classification that follows is textual. Section 2(1)(e) of the Bharatiya Sakshya Adhiniyam, 2023 defines evidence as all statements, including statements given electronically, which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry, together with all documents produced for the court's inspection. An accused examined under Section 351 is not a witness — he has not been sworn, tendered, or made subject to cross-examination. His answers therefore fall outside the definition, not because the law distrusts them, but because the category was drawn around a role he has not taken.
Considered, but not evidence
That leaves sub-section (4), which is the difficult part. Having placed the answers outside the definition of evidence, the section directs that they "may be taken into consideration".
The distinction is real and follows from the classification already made. Evidence is material on which a finding may be founded. Something merely taken into consideration is material the court is entitled to read alongside the evidence when deciding what that evidence establishes. Because the answers are not evidence, they cannot themselves supply a missing link in the prosecution case, and a denial cannot be weighed as testimony would be. What the statement does is fix what the accused says about the case, so that the prosecution's version is assessed against a stated alternative rather than against silence. That is a narrower function than proof, and a real one.
The asymmetry inside sub-section (4) is more revealing than the phrase itself. In the trial where the statement is made, the answers are only "taken into consideration". In any other inquiry or trial, for any other offence which those answers may tend to show the accused has committed, they may be "put in evidence for or against him". The same words carry a lower status in the proceeding that produced them and a higher status everywhere else.
The reason is that the two situations are not alike. In the trial at hand, the answers are a response to the court's own questions about the evidence in that case, and their function is to explain it — so they are read alongside the evidence rather than counted as part of it. In another prosecution, for an offence those answers happen to disclose, the statement is not a response to anything before that court. It is a prior statement of the accused's own, tendered and proved like any other material, and there is no reason for it to carry a special exemption there.
That is a consequence worth understanding before an accused is advised to explain a circumstance rather than simply deny it. Section 351 protects him against being compelled and against being punished for a false answer. It does not protect him against a true one, and what he volunteers to close one case may open another.
The door the accused may open
Section 353 supplies what Section 351 withholds. Any person accused of an offence before a criminal court is a competent witness for the defence and may give evidence on oath in disproof of the charges against him or against a co-accused tried with him. A single proviso, in two clauses, governs the entry: he shall not be called as a witness except on his own request in writing, and his failure to give evidence shall not be made the subject of any comment by any party or by the court, or give rise to any presumption against him or a co-accused.
Read together, the two sections do not overlap; they divide. Section 351 is the court's question and produces an unsworn statement that is not evidence. Section 353 is the accused's own application and produces sworn evidence that is — with cross-examination and the ordinary consequences of falsehood attached. The Sanhita therefore offers the accused two ways of speaking, distinguished by who initiates and what follows, and gives him the choice of which to use.
The written-request requirement is what keeps the choice his. If the accused could be called as a defence witness at anyone else's instance — counsel's, a co-accused's, the court's — Article 20(3) would be circumvented by procedure. The writing is not a formality about record-keeping. It is the only reliable record that the step was taken by the person entitled to take it.
The second clause completes the arrangement. A right that may be exercised freely but whose non-exercise can be commented on is not exercised freely. By forbidding comment and forbidding any presumption, the section ensures that declining to become a witness costs nothing, which is what makes becoming one a genuine election rather than a forced move.
The channels that are closed
The significance of Section 351 is easier to see once it is noticed how few openings the law leaves for the accused's own words.
What he said to the police during investigation is governed by Section 181 of the Sanhita, which reproduces Section 162 of the 1973 Code. No statement made to a police officer in the course of investigation shall, if reduced to writing, be signed by the person making it, and no such statement or record or any part of it may be used for any purpose at the inquiry or trial, save as the section itself provides. What it provides is narrow: where a witness is called for the prosecution, part of his earlier statement may be used by the accused — and by the prosecution only with the court's permission — to contradict him in the manner provided by Section 148 of the Bharatiya Sakshya Adhiniyam. Sub-section (2) then carves out two things the section does not touch: statements falling within clause (a) of Section 26 of the Adhiniyam, and the proviso to Section 23(2).
The shape of that exception is what matters here. It is built around a person who takes the witness box for the prosecution. The accused does not, so nothing he himself told the investigating officer becomes usable through this route.
A confession is closed more firmly still. Section 23(1) of the Bharatiya Sakshya Adhiniyam provides that no confession made to a police officer shall be proved against a person accused of any offence, and Section 23(2) that no confession made by a person in the custody of a police officer, unless made in the immediate presence of a Magistrate, shall be proved against him. What survives is the proviso preserving so much of the information as relates distinctly to a fact thereby discovered — an exception about discoveries, not about admissions.
Set against those exclusions, Section 351 stands out for what it uniquely is: the only occasion on which the court itself asks the accused to speak. The other openings depend on him — a confession he chose to make before a Magistrate, or a request in writing to enter the witness box under Section 353. If he does nothing, Section 351 is the whole of his voice in the record.
That is why the mandatory limb in sub-section (1) is worded as it is. The purpose clause says the object is to enable the accused "personally to explain any circumstances appearing in the evidence against him". A circumstance the prosecution relies on but the court never puts to him is a circumstance he was given no opportunity to explain, and the defect then lies in the trial rather than in the answer. What consequences follow from such an omission have been worked out in decided cases and are beyond a reading of the text, but the text by itself is enough to show that the omission is not a clerical one.
What sub-section (5) gives up
Sub-section (5) is the newest part of the provision. It was not in the 1973 Code as enacted; it was inserted into Section 313 by the Code of Criminal Procedure (Amendment) Act, 2008, and then carried into the Sanhita intact. It does two distinct things, and they are not of equal weight.
Permitting the court to take the help of the prosecutor and defence counsel in preparing the questions is a straightforward improvement. The questions must reflect what actually appears in the evidence against the accused, and the people who know what appears in the evidence are the people who led and met it. Framing the examination with their assistance makes it more likely that the circumstances put are the real ones.
Permitting a written statement to be filed "as sufficient compliance" is a different kind of provision. It is a concession to time, and courts carrying long lists need one. But the purpose named in sub-section (1) is enabling the accused personally to explain, and a written statement settled in an office and filed across the counter is not that. What sub-section (1) contemplates is an exchange in which the court puts a circumstance, hears what is said about it, and can put the next one in light of the answer. A document prepared in advance answers questions that were framed in advance; it cannot answer a question the first answer made necessary.
The provision is permissive — the court "may permit" — and the difference between the two routes is a reason to consider when to permit. A written statement is well suited to a case whose incriminating circumstances are documentary and settled, and poorly suited to one where the accused's account of a particular moment is the contested thing.
An examination the electronic-mode provision does not name
One question the new Sanhita raises is left open by its own text, and it is worth stating as a question rather than as an answer.
Section 530 provides that all trials, inquiries and proceedings under the Sanhita may be held in electronic mode, by use of electronic communication or audio-video electronic means, and then lists what this includes: issuance, service and execution of summons and warrants; examination of complainant and witnesses; recording of evidence in inquiries and trials; and all appellate proceedings or any other proceeding.
The enumeration names the examination of the complainant and of witnesses. The accused examined under Section 351 is neither, and the Sanhita keeps those categories apart elsewhere — Section 353 exists precisely because an accused is not a witness until he asks to become one. Whether the residuary words "any other proceeding" carry an examination whose stated purpose is to enable the accused to explain matters personally is not answered by the enumeration itself.
That is as far as the text goes, and it is as far as this post will go. How the question is in fact handled — under rules framed for the Sanhita, under the video-conferencing rules of a particular High Court, or in decided cases — is not something I have verified, and nothing here should be read as a claim that it is unsettled. The narrow observation is that the enabling provision lists the participants whose examination it covers and this one is not among them, and that in a section drafted as carefully as Section 351 about the difference between an accused and a witness, the distinction is unlikely to be accidental.
Conclusion
Section 351 looks like an exception to the ordinary rules of proof and is better read as their consequence. Every other participant in a criminal trial speaks under an obligation: witnesses are sworn and may be prosecuted for perjury, counsel are bound by their duties to the court, and the prosecution bears a burden it must discharge on evidence. The accused is the one participant whose speech the law will neither compel nor punish, and once that is fixed, the rest of the section is arithmetic. No compulsion means no oath; no oath means no perjury and no evidence; and no evidence, if the section stopped there, would mean that the person with most at stake in the trial could say nothing the court was entitled to notice unless he surrendered the protection and became a witness. Sub-section (4) prevents that outcome by letting the answers be considered without letting them be proof.
What the arrangement is for is worth stating plainly. A criminal trial is an attempt to decide whether a set of circumstances, established by the prosecution, admits of an innocent explanation. The person best placed to offer one is the accused, and he is also the person the State may not compel to speak. Section 351 is the mechanism by which the court can hear the explanation without extracting it, and Section 353 is the door he may choose to walk through if he wants the explanation to count as evidence.
For anyone conducting a defence, two things follow. The examination is not the tail end of the prosecution case; it is the last opportunity to place the accused's own account on the record without exposing him to cross-examination, and the questions put to him therefore deserve the attention given to a cross-examination rather than the attention given to a form. And an answer that is safe in this trial is not necessarily safe elsewhere, because sub-section (4) has already provided for the rest.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.