After the charge is framed and the plea of the accused recorded, the trial moves into its evidentiary heart: the prosecution leads its witnesses. In the judgment, this stage is captured in the segment that lists and summarises the prosecution witnesses — conventionally numbered PW1, PW2, PW3 and so on — together with the documents and material objects they prove. Getting this section right is not mere book-keeping. It is the spine on which the later discussion and finding rests, because a court can only convict on evidence it has correctly catalogued, attributed and appreciated. This chapter explains the statutory basis for recording prosecution evidence, how to list and number the PWs, how to mark exhibits, and the settled principles — quality over quantity, treatment of interested, hostile and chance witnesses, and the consequences of non-examination — that govern how a judgment-writer must handle this segment.

Where PW Listing Sits in the Judgment

A criminal judgment is not written in the order in which a trial unfolds, but it does broadly track that sequence. Following the cause-title, the statement of the prosecution case and the charge, the judgment turns to the evidence actually led. The prosecution-evidence segment is where the judge records, in a compact narrative or tabular form, who deposed for the prosecution, in what capacity, and what each witness proved. This is distinct from the later appreciation of evidence: at the listing stage the court is cataloguing, while in the discussion the court is weighing. A well-drafted judgment keeps the two functions visible — first a faithful inventory of PW1 to PWn, then a reasoned analysis. Treating the PW list as a mechanical roll-call, without identifying which witnesses are eye-witnesses, formal witnesses, medical or investigating officers, leaves the reader unable to follow the reasoning that follows. The structure of a criminal judgment therefore demands that the PW listing be organised by the function each witness serves in the prosecution narrative.

Statutory Basis: Recording Prosecution Evidence

The duty to take prosecution evidence in a sessions trial flows from Section 231 of the Code of Criminal Procedure, 1973 — now re-enacted as Section 265 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 231(1) directs that on the date fixed, “the Judge shall proceed to take all such evidence as may be produced in support of the prosecution,” while Section 231(2) gives the Judge discretion to defer the cross-examination of any witness until others have been examined, or to recall any witness for further cross-examination. For warrant trials before a Magistrate the parallel provision is Section 242 CrPC (now Section 266 BNSS). The manner of examining each witness is governed by the evidence statute: Section 137 of the Indian Evidence Act, 1872 — now Section 142 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — defines examination-in-chief, cross-examination and re-examination, and prescribes that a witness is first examined-in-chief by the party calling him, then cross-examined by the adverse party, and finally re-examined if necessary. When the judgment lists a PW, it is recording the product of this three-stage process, and a competent judgment-writer should be conscious that the deposition before the court is the consolidated record of all three stages, not merely the chief. A further procedural development under the BNSS regime bears on this segment: Section 265 BNSS (the successor to Section 231 CrPC) is to be read with the provisions mandating audio-video recording of the evidence of certain witnesses and permitting evidence by electronic means, a feature absent from the 1973 Code. For the listing the practical consequence is that the judgment may now have to record the mode in which a witness was examined — in person, or through video-conferencing — and the prosecution’s obligation to furnish the accused, before evidence begins, with copies of the statements and documents it proposes to rely on (Section 230 BNSS, formerly Section 207 CrPC) underpins the fairness of the entire evidence-recording exercise.

Numbering and Describing the Witnesses

Prosecution witnesses are listed and numbered in the order in which they are examined: the first witness sworn for the prosecution is PW1, the second PW2, and so on. The judgment should, for each witness, record the name, a short description of the role (complainant, injured eye-witness, panch/independent witness, medical officer, investigating officer, formal witness), and a crisp summary of what the witness deposed. Numbering is significant because all later references in the judgment — “as spoken to by PW3”, “the FIR lodged by PW1” — turn on it; an inconsistent or mis-stated PW number can render a finding unintelligible on appeal. The listing should also flag which witnesses turned hostile and were cross-examined by the prosecution with the court’s permission under Section 154 of the Evidence Act (Section 157 BSA), and which witnesses were tendered for cross-examination only. A disciplined PW list lets the appellate court reconstruct the trial without re-reading the depositions, which is precisely its purpose.

It is good practice to capture, in a single compact paragraph or table at the head of this segment, the full roster — PW1 through the last PW — before discussing any of them in detail. This gives the reader an immediate map of the prosecution’s evidentiary footprint: how many eye-witnesses, whether the investigating officer was examined, whether the doctor who conducted the post-mortem deposed, and whether the independent seizure witnesses were called or dropped. The detailed, witness-by-witness summary then follows. Where a witness was examined in part and recalled, or where the chief was recorded on one date and the cross on another, the listing should reflect that history, because gaps and adjournments in recording prosecution evidence frequently surface as grounds of appeal alleging that the defence was denied a fair opportunity to cross-examine.

Marking and Exhibiting Documents and Material Objects

Witnesses do not merely speak; they prove documents and material objects, and the judgment must record the exhibit marks. By long-settled court practice, documents tendered by the prosecution are marked as exhibits in a running series — the first document proved is Exhibit P-1, the next P-2 — frequently linked to the witness who proves it (for example, a document proved through PW1 may be shown as Exhibit P-1/PW1). Defence documents are usually marked in a D-series and material objects (weapons, seized articles) as MOs. Listing exhibits alongside the PW who proves them is essential because the probative weight of a document often depends on the competence of the proving witness: an inquest report is only as good as the officer who prepared it, a post-mortem report only as good as the doctor who deposes to it. A judgment that lists exhibits divorced from their proving witnesses invites the criticism that documents were treated as proved merely by being marked, when in law a document marked as an exhibit is not automatically proof of its contents — its contents must still be established through admissible evidence.

Duty to Examine Material Witnesses

The prosecution is not free to pick and choose which witnesses to examine. In Habeeb Mohammad v. State of Hyderabad, AIR 1954 SC 51, the Supreme Court laid down that witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether or not the effect of their testimony favours the prosecution. There, the failure to examine the Deputy Commissioner of Police, who had accompanied the accused and witnessed the occurrence, was held not only to justify an adverse inference but to cast a serious reflection on the fairness of the trial, and the conviction was set aside. When a judgment lists the PWs, the judge should therefore notice whether any material witness whose presence at the scene is indicated by the record has been deliberately withheld, because that omission feeds directly into the later evaluation of the prosecution case under the discussion and finding section.

Quality, Not Quantity, of Witnesses

A recurring error in judgment-writing is to count witnesses rather than weigh them. Section 134 of the Evidence Act — now Section 139 BSA — enacts that no particular number of witnesses shall in any case be required for the proof of any fact; evidence is to be weighed, not counted. In Masalti v. State of U.P., AIR 1965 SC 202, the Supreme Court disapproved the mechanical “safe test” that at least a fixed number of consistent witnesses was needed before convicting, holding that it is the quality of the evidence and not the number of witnesses that matters, though a court may, as a measure of caution, look for a degree of corroboration in a given case. The same principle underlies Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, where the Court classified witnesses into three categories — wholly reliable, wholly unreliable, and neither wholly reliable nor wholly unreliable — and held that a conviction may rest even on the sole testimony of a wholly reliable witness, while for the third category corroboration in material particulars is required. A judgment that lists six PWs but identifies which of them are wholly reliable is worth more than one that simply totals the headcount.

The Sole Eye-Witness and the Injured Witness

Two categories of witness deserve special handling in the listing because their evidentiary weight is settled by authority. First, the sole eye-witness. Building on Vadivelu Thevar, the Supreme Court in Namdeo v. State of Maharashtra, (2007) 14 SCC 150, reaffirmed that a conviction can be founded on the testimony of a single eye-witness, provided that witness is wholly reliable; witnesses are to be weighed and not counted, and a competent court may rely fully on a solitary witness and record a conviction where the testimony is of sterling quality, though as a rule of prudence the court may seek corroboration. Second, the injured witness. In Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259, the Court held that where a witness to the occurrence has himself sustained injuries in the same incident, the testimony carries a “built-in guarantee” of the witness’s presence at the scene and is generally very reliable, since an injured witness is unlikely to spare the real assailant in order to falsely implicate someone else; convincing reasons are required to discredit such a witness. The same special status of injured witnesses was reiterated in State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324. When the judgment lists an injured PW or a solitary eye-witness, flagging that status alerts the reader to the heightened or self-proving weight the law attaches to the deposition.

Prosecution witnesses are frequently relatives of the victim, and judgment-writers must resist the twin errors of automatic rejection and uncritical acceptance. In Darya Singh v. State of Punjab, AIR 1965 SC 328, the Supreme Court held that the evidence of interested witnesses, such as relatives of the victim in a murder case, must be examined very carefully, with all infirmities taken into account, but is not to be rejected merely because the witnesses are related to the deceased. The Court has consistently drawn a distinction between a “related” witness and an “interested” witness: a related witness is one connected by blood or affinity, whereas an interested witness is one who has a motive to falsely implicate the accused. As reiterated in Harbans Kaur v. State of Haryana, (2005) 9 SCC 195, there is no proposition in law that relatives are to be treated as untruthful witnesses, and where the evidence of a related eye-witness inspires confidence it may be relied upon without insisting on corroboration in minute particulars. The PW listing should accordingly note the relationship of each witness to the victim, so that the later appreciation engages with partisanship honestly rather than reflexively.

Chance Witnesses

A chance witness is one whose presence at the scene of occurrence is not the ordinary or expected consequence of their daily routine — a passer-by who happens upon a street crime. In Sachchey Lal Tiwari v. State of Uttar Pradesh, (2004) 11 SCC 410, the Supreme Court held that the evidence of a chance witness cannot be brushed aside lightly or viewed with suspicion merely because the witness is a chance witness, provided there is a satisfactory explanation for their presence at the place at the relevant time. Murders on a public road are not committed by appointment, and persons present on a busy thoroughfare cannot be disbelieved simply because they cannot be neatly slotted as residents or relatives. For the judgment-writer the practical takeaway is to record, when listing such a PW, the explanation offered for the witness’s presence, because the credibility of a chance witness turns precisely on the plausibility of that explanation.

Hostile Witnesses

When a prosecution witness resiles from the case and is cross-examined by the prosecutor with the court’s leave under Section 154 of the Evidence Act (Section 157 BSA), the witness is loosely called “hostile.” It is a serious mistake to treat such evidence as wholly washed out. In Bhagwan Singh v. State of Haryana, AIR 1976 SC 202, the Supreme Court held that the mere grant of permission to cross-examine one’s own witness does not completely efface that witness’s evidence, and the testimony remains admissible; a conviction may rest on those parts of a hostile witness’s deposition that are found reliable and are corroborated by other evidence. The judgment must therefore list a hostile PW as having been declared hostile, but must go on to identify which portions of the deposition, if any, survive scrutiny. A blanket statement that “PW4 turned hostile and is therefore discarded” is legally inaccurate and a frequent ground of appellate criticism.

Non-Examination of Witnesses and Adverse Inference

The flip side of the duty to examine material witnesses is the consequence of withholding them. In Takhaji Hiraji v. Thakore Kubersing Chamansing, (2001) 6 SCC 145, the Supreme Court held that the non-examination of a material witness may lead the court to draw an adverse inference under illustration (g) to Section 114 of the Evidence Act (Section 119 BSA), but the inference is not automatic. Where the witnesses examined are sufficient and reliable and the remaining witnesses would have been merely cumulative or overlapping, non-examination of the latter is of no consequence; the court must first assess the quality and adequacy of the evidence already on record. The crucial questions are whether the witness was material to unfolding the prosecution narrative, whether the witness was available, and whether the witness was deliberately withheld. The PW listing should make these factors visible — for instance by noting that an independent panch witness named in the seizure memo was not examined — so that the discussion can address the adverse-inference argument on a concrete factual footing rather than in the abstract.

Recall of Witnesses and Court Witnesses

The prosecution-evidence stage is not always closed when the last listed PW steps down. Section 311 CrPC — now Section 348 BNSS — empowers the court at any stage to summon any person as a witness, or to recall and re-examine any person already examined, and makes it obligatory to do so where the evidence appears essential to the just decision of the case. Witnesses summoned by the court itself are conventionally listed separately as court witnesses (CW1, CW2). The power is wide but is to be exercised with caution and for valid reasons, not to fill a lacuna in the prosecution case; courts have repeatedly cautioned that Section 311/Section 348 cannot be used to allow the prosecution to plug gaps it negligently left, while equally affirming that a genuinely essential witness must be summoned even if the prosecution omitted to examine them. When such evidence is recorded, the judgment must list these additional or recalled witnesses distinctly and explain the basis on which they were summoned, so the record reflects that the court acted to reach the truth and not to favour a party.

Presence of the Accused While Evidence Is Recorded

Prosecution evidence must ordinarily be recorded in the presence of the accused, an entitlement rooted in the fair-trial guarantee and reflected in the provisions requiring the accused’s presence at trial. The Supreme Court has, however, clarified that while the right to have evidence recorded in one’s presence is a valuable right, an infringement of it is curable and does not by itself vitiate the trial, provided no prejudice is shown. For the judgment-writer this means that if any part of the prosecution evidence — say the examination-in-chief of PW1 or PW2 — was recorded in the accused’s absence with cross-examination deferred, the judgment should note the circumstance and address whether any prejudice resulted, rather than ignore it. Recording such procedural facts in the PW-listing segment forestalls an appellate complaint that the irregularity was glossed over.

Structuring the PW-Listing Segment in Practice

In practice the PW-listing segment is best organised functionally rather than as an undifferentiated list. A sound approach groups the witnesses: first the eye-witnesses and injured witnesses who speak to the occurrence; then the formal and independent witnesses (panch witnesses to seizure, inquest and recovery); then the expert witnesses (medical officer who conducted the post-mortem, ballistics or forensic experts); and finally the investigating officer who proves the investigation and the documents generated in its course. Within each group the judgment records the PW number, name, role and the gist of the deposition, cross-referencing the exhibits proved. This functional grouping mirrors how the court will later test the case — ocular evidence against medical evidence, recovery against the seizure witnesses, and so forth — and it dovetails with the overall structure of the judgment. A reader who has absorbed the PW listing should be able to anticipate the issues the discussion will resolve, which is the surest sign that the segment has done its job.

A worked illustration helps. Suppose in a murder trial the prosecution examines eight witnesses: PW1 the complainant-father and eye-witness, PW2 an injured eye-witness, PW3 a neighbour who is a chance witness, PW4 a panch to the recovery of the weapon who turns hostile, PW5 the doctor proving the post-mortem (Exhibit P-5/PW5), PW6 the photographer, PW7 a constable proving the inquest, and PW8 the investigating officer proving the FIR, seizure memos and charge-sheet. A sound listing groups these as ocular witnesses (PW1, PW2, PW3), formal/recovery witnesses (PW4, PW7), expert and documentary witnesses (PW5, PW6) and the investigator (PW8). The listing flags PW2 as an injured witness whose presence cannot lightly be doubted, PW3 as a chance witness whose explanation for presence must be assessed, and PW4 as hostile so that the later discussion knows to mine the surviving portions of his evidence rather than discard it wholesale. That single, well-organised inventory equips the discussion to test ocular against medical evidence and recovery against the seizure witnesses without re-reading a page of the record.

Common Errors to Avoid

Several recurring defects mar this segment. First, mis-numbering or inconsistently referencing PWs across the judgment, which confuses the appellate court. Second, listing exhibits without tying them to the proving witness, leaving the impression that documents were treated as proved merely by being marked. Third, dismissing hostile witnesses wholesale, contrary to Bhagwan Singh. Fourth, rejecting related witnesses reflexively, contrary to Darya Singh and Harbans Kaur. Fifth, counting witnesses instead of weighing them, contrary to Masalti and Vadivelu Thevar. Sixth, drawing an adverse inference mechanically from every non-examination, contrary to Takhaji Hiraji, or conversely ignoring the deliberate withholding of a genuinely material witness, contrary to Habeeb Mohammad. A judgment-writer who lists the PWs with these principles in mind produces a segment that is not only accurate but appeal-proof, laying clean foundations for the analysis that follows in the discussion and finding.

Frequently asked questions

What is the statutory basis for recording prosecution evidence in a sessions trial?

Section 231 of the CrPC, 1973 — now Section 265 of the BNSS, 2023 — requires the Judge to take all evidence produced in support of the prosecution, with discretion under sub-section (2) to defer cross-examination or recall a witness. The manner of examination is governed by Section 137 of the Evidence Act (Section 142 BSA).

How are prosecution witnesses numbered and exhibits marked?

Prosecution witnesses are numbered in the order examined as PW1, PW2 and so on. Documents are marked in a running P-series (Exhibit P-1, P-2), often linked to the proving witness (e.g. Exhibit P-1/PW1), defence documents in a D-series, and material objects as MOs. Marking a document as an exhibit does not by itself prove its contents.

Does the number of witnesses determine the strength of the prosecution case?

No. Section 134 of the Evidence Act (Section 139 BSA) provides that no particular number of witnesses is required for proof of any fact. In Masalti v. State of U.P. the Supreme Court held that quality, not quantity, governs, and in Vadivelu Thevar v. State of Madras it held that even a single wholly reliable witness can sustain a conviction.

Can a conviction rest on the evidence of a hostile witness?

Yes, in part. In Bhagwan Singh v. State of Haryana the Supreme Court held that permitting cross-examination of one’s own witness does not wholly efface the testimony; the reliable and corroborated portions of a hostile witness’s evidence remain admissible and can support a conviction. The judgment must identify which portions survive.

When is an adverse inference drawn for non-examination of a witness?

Under Takhaji Hiraji v. Thakore Kubersing Chamansing, non-examination of a material witness may invite an adverse inference under illustration (g) to Section 114 of the Evidence Act (Section 119 BSA), but not automatically. If the examined witnesses are adequate and the omitted ones merely cumulative, no inference follows; the witness must be material, available and deliberately withheld, as in Habeeb Mohammad v. State of Hyderabad.

How should a judgment treat related or interested prosecution witnesses?

Related witnesses are not to be rejected merely for their relationship. Darya Singh v. State of Punjab requires their evidence to be scrutinised carefully with all infirmities noted, and Harbans Kaur v. State of Haryana holds there is no rule that relatives are untruthful; where their evidence inspires confidence it may be accepted without corroboration in minute particulars. A related witness is distinct from an interested witness who has a motive to falsely implicate.