Defence Evidence — DW Listing

Once the prosecution case is closed and the accused has been examined under section 313 of the Code, the trial enters its final evidentiary phase — the defence. A well-drafted criminal judgment must record, with the same discipline applied to prosecution witnesses, whether the accused chose to lead evidence, which witnesses were examined as DWs, what documents were exhibited on the defence side, and crucially, how that material was weighed. This chapter explains the statutory architecture of defence evidence under section 233 (Sessions) and section 243 (warrant cases) of the Code of Criminal Procedure, 1973 and their successors in the Bharatiya Nagarik Suraksha Sanhita, 2023, the special rules of burden under section 105 of the Evidence Act, and the judicial discipline a court must observe while listing and appreciating defence witnesses in the body of its judgment.

Where DW Listing Sits in the Judgment

In the anatomy of a criminal judgment, defence evidence occupies a fixed place: it follows the recital of the prosecution evidence and precedes the discussion and findings. A judgment that has set out the statement of the prosecution case, the charge framed against the accused and the plea of the accused must, after narrating the prosecution witnesses (PW-1, PW-2 and so on) and exhibits, turn to whether the accused led any evidence. The standard formulation is a short paragraph: "In his defence, the accused examined DW-1 (…), DW-2 (…) and produced documents Ext. D-1 to Ext. D-3." If no defence evidence was led, the judgment must say so expressly — "The accused led no evidence in defence" — because that fact is itself relevant to the reasoning. This skeleton is examined in the chapter on the structure of a criminal judgment, and the present chapter drills into the defence-evidence cell of that structure. For the larger architecture, see the Criminal Judgment Writing hub.

The listing is not a clerical exercise. The Supreme Court has repeatedly cautioned that defence evidence must be set out and discussed, not ignored or brushed aside; a conviction recorded without adverting to the defence material is vulnerable in appeal. The judgment must show, on its face, that the court applied its mind to the defence version.

The placement also matters for the logical flow of the judgment. Defence evidence is led only after the prosecution has closed its case and the accused has been examined under section 313 on the incriminating circumstances. The DW listing therefore presupposes that the court has already identified, in the section 313 examination, the prosecution circumstances the accused now seeks to meet. A judgment that lists defence evidence without first having properly put the case to the accused exposes a procedural gap that the appellate court will notice. The sequence — prosecution evidence, section 313 examination, defence evidence, then findings — is not interchangeable, and the DW paragraph is the hinge between the two evidentiary halves of the trial.

Statutory Basis: Section 233 CrPC / Section 256 BNSS

The right of the accused to lead defence evidence in a Sessions trial flows from section 233 of the Code of Criminal Procedure, 1973. Where the accused is not acquitted under section 232 (no case to answer), he "shall be called upon to enter on his defence and adduce any evidence he may have in support thereof." Sub-section (2) obliges the Judge, on the accused's application, to issue process for compelling the attendance of any witness or the production of any document or thing, "unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." Sub-section (3) permits refusal where, after the witness's appearance is felt unnecessary, recording reasons.

Under the Bharatiya Nagarik Suraksha Sanhita, 2023, the corresponding provision is section 256, which reproduces section 233 substantially verbatim. A judgment writer in a Sessions case therefore cites section 233 of the 1973 Code (for trials governed by it) or section 256 BNSS (for trials under the new Sanhita) as the source of the accused's right to lead, and the court's duty to record, defence evidence. The Allahabad High Court in Inderpal Singh v. State of U.P. reaffirmed that the right to summon defence witnesses under section 233 belongs to the accused and the court's power to refuse is narrow — confined to vexation, delay or defeating the ends of justice, with reasons recorded in writing.

Statutory Basis in Warrant Cases: Section 243 CrPC / Section 266 BNSS

In a warrant case tried by a Magistrate, the corresponding provision is section 243 of the Code of Criminal Procedure, 1973. Sub-section (1) directs that the accused "shall then be called upon to enter upon his defence and produce his evidence", and any written statement put in shall be filed with the record. Sub-section (2) carries the same mandatory tenor as section 233(2): on the accused's application the Magistrate "shall issue" process for the attendance of a witness or production of a document, the only permissible grounds of refusal being that the application is for the purpose of vexation or delay or for defeating the ends of justice, such ground to be recorded in writing. The proviso allows the Magistrate to require the reasonable expenses of the witness to be deposited in court before summoning.

The successor provision in the Bharatiya Nagarik Suraksha Sanhita, 2023 is section 266, which mirrors section 243. The Delhi High Court has held, construing section 243(2), that an application for defence evidence cannot be rejected unless it is vexatious, delayed or would defeat the ends of justice — the court has no roving discretion to refuse merely because it doubts the utility of the witness. A judgment recording defence evidence in a warrant case should therefore anchor the DW listing to section 243 CrPC / section 266 BNSS and, if any defence application was refused, must reflect the reasons recorded for that refusal.

Summons Cases and the Two Categories of Defence Witnesses

In summons cases tried by a Magistrate, the procedure under sections 251 to 259 does not contain a discrete "enter upon defence" section, but the accused's right to lead evidence is implicit and the Magistrate records DW evidence in the ordinary course; the residuary power under section 311 (section 348 BNSS) to summon any material witness also operates. The judgment writer in a summons case lists DWs in the same disciplined fashion.

A point frequently tested is the two categories of witnesses contemplated by section 243(2) / section 266 BNSS. The first category is fresh witnesses the defence wishes to produce. The second is witnesses already examined during prosecution evidence whom the defence wishes to recall for further examination or cross-examination. A judgment listing defence evidence should be precise about which category a recalled witness falls in, because a recalled prosecution witness summoned on the defence application is still listed and weighed as part of the defence's case-building, even though the deposition number may continue in the PW series. Clarity here avoids the common drafting error of conflating recall with fresh defence examination.

The Accused as His Own Witness: Section 315 CrPC

A distinct strand of defence evidence is the accused stepping into the witness box. Section 315 of the Code of Criminal Procedure, 1973 makes any person accused of an offence "a competent witness for the defence" who "may give evidence on oath in disproof of the charges made against him" — but only "on his own request in writing." The corresponding provision under the new code is section 358 BNSS. Two protections accompany this right. First, the accused cannot be compelled; he testifies only on his written request. Second, his failure to give evidence shall not be the subject of comment by any party or the court, nor give rise to any presumption against him or a co-accused.

For the judgment writer, this has a concrete consequence: where the accused has examined himself, he is generally listed as DW-1 and his sworn testimony is appreciated like any other defence evidence, subject to the obvious caution that he is the person most interested in the outcome. Where the accused has not testified, the judgment must scrupulously avoid drawing any adverse inference from that silence — a recurring error that vitiates findings. This distinguishes a section 315 deposition from the statement under section 313, which is not evidence on oath; the chapter on the plea of the accused develops the contrast between the examination under section 313 and sworn defence testimony.

Burden of Proof and the Standard for Defence Evidence

The single most important principle a judgment must apply while weighing defence evidence is that the standard demanded of the defence is not proof beyond reasonable doubt. The prosecution's general burden — to establish guilt beyond reasonable doubt — never shifts. But where the accused sets up a general or special exception under the Penal Code, section 105 of the Indian Evidence Act, 1872 (now section 108 of the Bharatiya Sakshya Adhiniyam, 2023) places on him the burden of proving the existence of circumstances bringing his case within that exception, and directs the court to "presume the absence of such circumstances."

The classic exposition is Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563, where the Supreme Court, speaking through Subba Rao J., explained the interplay of the general and special burdens in a plea of insanity. The Court held that the accused discharging his burden under section 105 need only establish his exception on a preponderance of probabilities, as in a civil proceeding; and even if he fails to discharge that burden, the evidence he leads, taken with the rest of the material, may still create a reasonable doubt about the prosecution case — in which event he is entitled to acquittal. A judgment that demands the defence prove its exception beyond reasonable doubt misapplies Dahyabhai and is liable to reversal.

Section 105 in Action: The Nanavati Principle

The leading authority on section 105 is K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605. The Supreme Court held that when an accused relies on a general or special exception, section 105 raises a presumption against him and casts on him the burden to rebut it — but this presumption and shifting of burden does not relieve the prosecution of its own burden of proving the ingredients of the offence, which never shifts. The accused may discharge his section 105 burden either by leading positive defence evidence or by relying on probabilities arising from the prosecution evidence itself.

A judgment appreciating defence evidence in an exception case (private defence, grave and sudden provocation, insanity, accident) must therefore reason in three steps: first, has the prosecution proved the actus reus and mens rea beyond reasonable doubt; second, has the accused, on the lower civil standard, made out the exception; and third — and this is the step most often omitted — even if the exception is not affirmatively established, does the defence material, cumulatively, raise a reasonable doubt about guilt. The Supreme Court reiterated in Vijayee Singh v. State of U.P., AIR 1990 SC 1459, that where the accused fails to prove the exception but the material is sufficient to create a reasonable doubt as to an ingredient of the offence, he is entitled to the benefit of that doubt. The judgment must visibly perform this calibration.

Plea of Alibi and the Listing of Alibi Witnesses

A frequent species of defence evidence is the plea of alibi — that the accused was elsewhere when the offence was committed. The Supreme Court in Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283, clarified that alibi is not an exception under the Penal Code; it is a rule of evidence recognised by section 11 of the Indian Evidence Act, 1872 (section 9 of the Bharatiya Sakshya Adhiniyam, 2023). The burden of establishing the plea lies on the accused under section 103 of the Evidence Act, and the Court held that "the burden of the accused is undoubtedly heavy" — he must prove with such certainty as to exclude the possibility of his presence at the scene. Mere preponderance is not enough for alibi to displace direct eyewitness testimony.

For DW listing, this means alibi witnesses (often an employer, attendance-register custodian, or travel companion) and the supporting documents (Ext. D-series attendance sheets, tickets, registers) must be itemised and then tested against this strict standard. Importantly, Binay Kumar Singh also holds that failure to establish alibi does not, by itself, prove the prosecution case; the prosecution must still independently discharge its own burden. A judgment that treats a failed alibi as a confession of guilt commits a serious error of approach.

Equal Treatment of Defence Witnesses

The most quoted proposition on the appreciation of DW evidence comes from Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166. Repelling the trial court's mechanical rejection of the accused's alibi witnesses, the Supreme Court laid down that "defence witnesses are entitled to equal treatment with those of the prosecution. Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses." A judgment may not discard a DW's testimony merely because the witness is related to, or interested in, the accused — interestedness goes to scrutiny, not to automatic rejection, exactly as with an interested prosecution witness.

This principle was applied by the Supreme Court in State of U.P. v. Babu Ram and a line of subsequent cases, which warn against the asymmetry of accepting interested prosecution witnesses while reflexively rejecting interested defence witnesses. The judgment writer must therefore record, for each DW, a reasoned assessment — consistency, corroboration, demeanour as noted, and probability — rather than a blanket sentence dismissing the defence evidence as "got up" or "interested." A finding that rejects DW evidence must be supported by reasons that would equally justify rejecting a similarly placed prosecution witness.

The equal-treatment rule does not mean defence evidence is to be accepted uncritically; it means the same tests of credibility apply to both sides. If a DW's account is internally inconsistent, contradicted by reliable documentary evidence, or improbable on its face, the court is fully entitled to reject it — but it must say why, in terms that do not betray a starting presumption of falsehood. Equally, the court should be alert to defence witnesses who emerge for the first time at trial without any prior explanation for their silence, or whose presence at the scene is itself improbable; these are legitimate grounds of scrutiny, not prohibited ones. The vice that Dudh Nath Pandey condemns is the unreasoned, reflexive rejection — the judicial shrug — not a careful, reasoned disbelief. A judgment that engages each DW on the merits, accepting what is credible and rejecting what is not with stated reasons, is insulated from the charge of having pre-judged the defence.

Documentary Defence Evidence and Exhibit Marking

Defence documents are conventionally marked in a distinct series — Ext. D-1, D-2 and so on — to keep them separate from prosecution exhibits (Ext. P-series or Ext. PW-series) and court exhibits (Ext. C-series). The judgment's defence-evidence paragraph should list each defence exhibit with a one-line description ("Ext. D-1, attendance register of the factory for the relevant date") and indicate through which witness it was proved. A document merely produced but not formally proved through a competent witness — and not admitted by the opposite side — should be noted as such, because its evidentiary value is limited.

Care is required where a defence document is a public record or carries a statutory presumption; the judgment must apply the relevant presumption provisions of the Evidence Act / Bharatiya Sakshya Adhiniyam consistently for both sides. The discipline of accurate exhibit listing connects back to the foundational requirements set out in the chapter on the introduction, importance and statutory basis of judgment writing — an exhibit wrongly numbered or attributed to the wrong witness is a recurring ground of appellate criticism.

When No Defence Evidence Is Led

The accused is under no obligation to lead any defence evidence. The presumption of innocence and the rule that the prosecution must stand on its own legs mean that a court cannot convict because the defence led nothing. The judgment, where no DW is examined, must state the fact neutrally — "The accused did not lead any evidence in defence" — and must not convert that silence into a make-weight against the accused. Section 315's protection against comment on the accused's failure to testify reinforces this.

A different question arises where the defence withholds a material witness clearly within its power to produce and on whose evidence its specific plea depends. Even then, the primary effect is only that the unproved plea fails for want of evidence; the adverse-inference rule under section 114, illustration (g) of the Evidence Act (section 119, illustration (g) of the Bharatiya Sakshya Adhiniyam) operates with great caution against an accused, given that the burden of proving guilt rests on the prosecution. The judgment should not invoke illustration (g) against the accused as a substitute for the prosecution's failure to prove its own case.

Judicial Discipline in Discussing DW Evidence

Appellate courts repeatedly set aside convictions where the trial judge listed defence witnesses but never discussed them in the findings. The governing discipline is that every DW examined, and every defence exhibit proved, must be adverted to in the discussion, and either accepted with reasons or rejected with reasons. A judgment that recites "DW-1 to DW-3 were examined" in the narrative but is silent about them when recording findings is, in substance, a non-speaking judgment on the defence case.

The Allahabad High Court, surveying sections 311 and 233 in the context of production of defence witnesses, underscored that the right of the accused under section 233 to produce his witnesses is part of the fundamental fair-trial guarantee of audi alteram partem; a corollary is that once such evidence is led, the court owes a reasoned engagement with it. The well-drafted judgment, after listing DWs and Ext. D-exhibits in the evidence recital, returns to them in the analytical portion — testing the alibi against Binay Kumar Singh, the exception against Dahyabhai and Nanavati, and the credibility of each DW against the equal-treatment rule in Dudh Nath Pandey — before recording its conclusion on guilt.

A Model Paragraph for DW Listing

By way of consolidation, a model defence-evidence recital in a Sessions judgment might read: "After the accused was examined under section 313 Cr.P.C., he was called upon under section 233 Cr.P.C. to enter on his defence. In support of his plea of alibi, the accused examined three witnesses — DW-1 (the establishment's time-keeper), DW-2 (a co-worker) and DW-3 (the accused himself, on his written request under section 315 Cr.P.C.) — and proved documents Ext. D-1 (the attendance register) and Ext. D-2 (the duty roster). The defence evidence is discussed in paragraphs … below." The analytical portion then engages each DW.

This structure satisfies four requirements: it anchors the listing to the correct statutory provision (section 233 / 256 BNSS or section 243 / 266 BNSS as applicable); it identifies each DW and exhibit precisely; it flags the accused's own testimony under section 315 with its written-request safeguard; and it promises — and must deliver — a reasoned discussion. Done well, the defence-evidence cell of the judgment demonstrates, on the face of the record, that the court gave the accused's version the equal and reasoned consideration that Dudh Nath Pandey and the fair-trial guarantee demand.

Frequently asked questions

Under which section does the accused get the right to lead defence evidence in a Sessions trial?

Section 233 of the Code of Criminal Procedure, 1973 (now section 256 of the Bharatiya Nagarik Suraksha Sanhita, 2023). The Judge must call upon the accused, if not acquitted under section 232, to enter on his defence, and must issue process for defence witnesses unless the application is for vexation, delay or to defeat the ends of justice, with reasons recorded.

What is the standard of proof for the defence when it sets up an exception?

Not proof beyond reasonable doubt. Under section 105 of the Evidence Act (section 108 BSA, 2023) the accused need only establish the exception on a preponderance of probabilities, as held in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563, and even a failed exception may still raise a reasonable doubt entitling him to acquittal.

Can the accused give evidence on oath in his own defence?

Yes. Section 315 CrPC (section 358 BNSS) makes the accused a competent witness for the defence, but only on his own request in writing. His failure to testify cannot be commented upon by any party or the court, nor give rise to any presumption against him.

How must a court treat defence witnesses who are relatives of the accused?

With equal treatment to prosecution witnesses. In Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166, the Supreme Court held that courts must overcome their instinctive disbelief in defence witnesses; interestedness goes to careful scrutiny, not automatic rejection — exactly as with an interested prosecution witness.

What is the burden on an accused pleading alibi?

A heavy one. Per Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283, alibi is a rule of evidence under section 11 of the Evidence Act (section 9 BSA); the accused must prove it under section 103 with such certainty as to exclude the possibility of his presence at the scene. Yet a failed alibi does not by itself prove the prosecution case.

Can a conviction be sustained if the judgment lists DWs but never discusses them?

Generally no. A judgment that records the defence witnesses in its narrative but is silent about them in its findings is effectively a non-speaking judgment on the defence case, and is vulnerable in appeal. Every DW examined and every defence exhibit proved must be adverted to and accepted or rejected with reasons.