Statement of Accused (Section 313 CrPC / Section 351 BNSS)

After the prosecution has closed its evidence, the criminal trial pauses for a uniquely Indian procedural ritual: the court itself, on oathless terms, puts every incriminating circumstance to the accused and invites an explanation. This is the examination of the accused under Section 313 of the Code of Criminal Procedure, 1973 — now re-enacted with refinements as Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023. For the judgment writer, the segment captioned “Statement of the Accused” is far more than a formality. It is the place where the court records what the accused said when each piece of evidence was confronted to him, and it is the foundation on which the later appreciation of evidence either stands or collapses. A judgment that fumbles this section invites reversal; one that handles it with care insulates the conviction. This chapter, part of the Criminal Judgment Writing series, explains the statutory scheme, the leading authorities, and exactly how to draft this portion of a criminal judgment.

What the “Statement of the Accused” Segment Records

In the architecture of a criminal judgment, the “Statement of the Accused” follows the recording of prosecution evidence and precedes the discussion of defence evidence and the court's own appreciation. It is the narrative counterpart of the procedural step taken under Section 313 CrPC / Section 351 BNSS: after the prosecution witnesses are examined and before the accused is called upon for his defence, the court questions him generally on the case and on every circumstance appearing against him in the evidence. The judgment must capture the substance of that examination — what was put, and what the accused answered.

This segment is conceptually distinct from the earlier plea of the accused recorded at the stage of framing of charge. The plea is a one-line response of guilty or not guilty taken at the threshold; the statement under Section 313 is a detailed, mid-trial confrontation taken after the evidence is in. A well-structured judgment keeps the two apart and does not collapse the later 313 statement into the early plea. As the broader structure of a criminal judgment demonstrates, each segment has a defined function, and the 313 statement is the hinge between the prosecution case and the court's reasoning.

The Statutory Scheme: Section 313 CrPC and Section 351 BNSS

Section 313(1) CrPC opens with the stated purpose — “for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him.” It then splits into two limbs. Under clause (a), the court “may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary.” This is discretionary. Under clause (b), the court “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.” This is mandatory. A proviso permits the court, in a summons case where it has dispensed with the personal attendance of the accused, to also dispense with examination under clause (b).

The remaining sub-sections are protective. Sub-section (2) directs that no oath shall be administered to the accused when he is examined — he speaks, but not as a witness. Sub-section (3) provides that the accused shall not render himself liable to punishment by refusing to answer or by giving false answers. Sub-section (4) permits the answers to be “taken into consideration” in the inquiry or trial and put in evidence for or against him in any other inquiry or trial for any other offence the answers may tend to show he committed. A proviso inserted in 2009 allows the court, in cases where attendance has been dispensed with, to take the assistance of the prosecutor and defence counsel and to permit the accused to file a written statement.

Section 351 BNSS, 2023 reproduces this scheme substantially verbatim — the same two limbs in sub-section (1), the same oathless character in (2), the same no-punishment protection in (3), and the same evidentiary value in (4). The notable codification is sub-section (5), which now expressly states that the court may take the help of the prosecutor and defence counsel in preparing the questions to be put to the accused, and may permit the filing of a written statement by the accused as sufficient compliance with the section. What was a 2009 proviso confined to dispensed-attendance cases has thus been elevated into a free-standing, generally applicable sub-section. For the judgment writer, the substance is unchanged; only the section number and the citation of the enabling sub-section differ depending on whether the trial is governed by the CrPC or the BNSS.

Object and Purpose: A Facet of Natural Justice

The animating idea is fairness. The accused must be given a chance to explain incriminating material before the court draws an inference of guilt from it. In Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468, the Supreme Court underlined that the examination of the accused is intended to give him an opportunity to explain the circumstances appearing against him, and that statements made by the accused in this examination can be used to test the prosecution case and to weigh his explanation. The provision is therefore not a trap; it is a safeguard.

The Supreme Court put this beyond doubt in Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740, holding that the provisions of Section 313 are not meant to nail the accused to any position but are intended for his benefit — a salutary provision conceived in the interest of the accused to afford him an opportunity of explanation. The Court traced the requirement to the principle audi alteram partem, recognising that no adverse inference should be drawn against an accused on a circumstance he was never asked to meet. This characterisation — examination under Section 313 as a facet of natural justice rather than a mere ritual — should inform how the judgment writer treats the segment: not as a box to be ticked, but as a record of a fair hearing actually given.

The Mandatory Character of Clause (b)

While clause (a) is discretionary, clause (b) is obligatory in every trial. Omission to examine the accused under clause (b) is an illegality that can vitiate the trial where prejudice is shown. The classic exposition is Tara Singh v. State, AIR 1951 SC 441, where the Supreme Court, dealing with the predecessor Section 342 of the 1898 Code, stressed that the provision must be observed faithfully and fairly, and that it is not proper compliance to read out a long string of committal-court questions and answers and merely ask the accused whether the statement is correct.

The duty is the court's and cannot be delegated. The questions must be framed by the court — although under Section 313(5) BNSS the court may now take the assistance of counsel in preparing them — and the examination must be a genuine, intelligible confrontation, not a mechanical recital. In Basavaraj R. Patil the Court relaxed the rule of strict personal presence in exceptional circumstances (for example, where the accused is abroad or incapacitated) by allowing examination through counsel on an affidavit, but it reaffirmed that examination itself is mandatory; only the mode of securing the accused's response may be moderated. The judgment writer should therefore be able to demonstrate, on the face of the record, that the mandatory examination was in fact carried out.

Every Incriminating Circumstance Must Be Put Separately

The most litigated aspect of Section 313 is the requirement that each material incriminating circumstance be put to the accused separately, specifically and distinctly. A circumstance not put to the accused cannot be used against him; the court must exclude it from consideration. The locus classicus is Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the same decision that laid down the five “golden principles” (the panchsheel) of circumstantial evidence. There the Supreme Court held that circumstances not put to the accused under Section 313 must be completely excluded from consideration, because the accused had no opportunity to explain them.

The principle was authoritatively restated in Raj Kumar @ Suman v. State (NCT of Delhi), 2023 SCC OnLine SC 609, where the Court catalogued the governing propositions: the trial court has a duty to put each material circumstance appearing in evidence against the accused separately, specifically and distinctively; a material circumstance is one on the basis of which the prosecution seeks conviction; a circumstance not put to the accused must be eschewed from consideration; and failure to put a material circumstance is a serious irregularity that vitiates the trial if prejudice is shown. For the judgment writer, the practical consequence is sharp: when appreciating the evidence, the court can rely only on circumstances that were actually put to the accused. A judgment that convicts on a circumstance never confronted to the accused is exposed on appeal.

The requirement applies with particular rigour in cases resting wholly on circumstantial evidence, because there the cumulative force of the circumstances is the very thing that establishes guilt. If one of those circumstances was never put to the accused, the chain is broken at the point of fairness even if it appears complete on the evidence. Equally, where there are multiple accused, the questions must be tailored to the role attributed to each — a circumstance establishing the specific overt act of accused A cannot be presumed to have been put merely because a general question was asked of accused B. The judgment writer must therefore ensure that the 313 record is individuated, and that the circumstances relied upon in convicting a particular accused correspond to the questions actually put to that accused.

Prejudice, Curability and the Failure-of-Justice Test

Not every defect in the 313 examination is fatal. The law distinguishes between an irregularity that causes a failure of justice and one that does not. Where the omission to put a circumstance has occasioned no prejudice — for instance, because the accused was otherwise aware of it and had a full opportunity to meet it through other circumstances put to him — the defect is curable. This is the thrust of Nar Singh v. State of Haryana, (2015) 1 SCC 496, where the Supreme Court systematised the consequences of non-compliance: if the omission has not caused prejudice and has not resulted in a failure of justice, the irregularity is curable; if it has, the court must consider remitting the matter or excluding the tainted circumstance.

The burden of demonstrating prejudice ordinarily lies on the accused, and the objection is generally expected to be raised at the earliest stage rather than for the first time at the appellate level. Raj Kumar @ Suman applied this calibrated approach and, finding that two incriminating circumstances central to the shared common intention had not been put to the appellant, held that material prejudice was made out and the conviction could not stand on those circumstances. The judgment writer should therefore not treat every gap mechanically; the question is always whether a failure of justice has resulted.

Can the Defect Be Cured at the Appellate Stage?

An appellate or revisional court is not powerless when it finds a defective or absent 313 examination. The remedies range from remand for fresh examination, to recording the accused's statement at the appellate stage, to simply excluding the un-put circumstance. The Supreme Court in Aejaz Ahmad Sheikh v. State of Uttar Pradesh, 2025 INSC 529, emphasised that a court hearing a conviction appeal must examine the accused's Section 313 statement at the earliest stage and cure any defect promptly rather than allowing it to fester, and that an unexplained, prejudicial omission can entitle the accused to acquittal. The decision is a useful recent anchor for the proposition that the appellate court's duty to scrutinise the 313 examination is active, not passive.

For a trial judge writing the judgment, the lesson is preventive: it is far better to conduct a complete and careful examination at first instance than to leave a curable-or-fatal question for the appellate court. A clean 313 record removes one of the most common grounds of challenge to a conviction.

Evidentiary Value of the Accused's Answers

The answers given under Section 313 are not evidence in the strict sense — the accused is not on oath and is not cross-examined — yet they are not to be ignored. They may be “taken into consideration” under sub-section (4). The settled position is that the statement of the accused under Section 313 cannot, by itself, form the sole basis of conviction; it must be read along with the prosecution evidence. But where the accused offers a false or evasive explanation, or remains silent on a circumstance that, if true, was within his special knowledge, that conduct can supply an additional link in a chain of circumstantial evidence.

This too flows from Sharad Birdhichand Sarda, which cautioned that a false explanation can be pressed into service only as an additional link to complete an otherwise complete chain, and never to fill a gap in the prosecution case. The court cannot convict on the strength of a false 313 answer where the prosecution has not independently established the foundational facts. Conversely, a plausible explanation that the prosecution fails to dislodge can tilt the balance towards the accused. The judgment writer must therefore weigh the 313 answers — accepting, rejecting, or treating them as a corroborative link — and must do so with reasons.

The Court's Duty to Consider the Defence Taken Under Section 313

A recurring error in poorly written judgments is silence on the explanation the accused actually offered. The Supreme Court has held that the court is duty-bound to consider the defence set up by the accused in his 313 statement and to either accept or reject it with reasons recorded in writing. In Reena Hazarika v. State of Assam, (2019) 13 SCC 289, the Court held that Section 313 is not a mere procedural formality but a facet of the fundamental right to a fair trial under Article 21, and that a solemn duty is cast on the court to consider the accused's explanation and either accept or reject it for reasons stated in writing. Non-consideration of the defence can itself vitiate a conviction.

The Court further clarified the standard of proof applicable to such a defence: where an accused offers an explanation under Section 313, he is not required to prove it beyond reasonable doubt but only by a preponderance of probabilities. If the explanation, tested against the evidence, is reasonably probable, the benefit must go to the accused. For the judgment writer, this translates into a concrete drafting obligation: the appreciation-of-evidence portion of the judgment must expressly engage with the accused's explanation and give reasons for accepting or rejecting it.

Written Statements and Assistance of Counsel

The 2009 amendment to the CrPC permitted, in cases where personal attendance had been dispensed with, the court to take the assistance of the prosecutor and defence counsel and to permit the accused to file a written statement as sufficient compliance with Section 313. The BNSS has generalised and clarified this through Section 351(5), which empowers the court to take the help of the prosecutor and defence counsel in preparing the relevant questions, and to permit the filing of a written statement by the accused as sufficient compliance. Where such a written statement is filed and accepted by the court, it forms part of the record and must be considered exactly as oral answers would be.

This procedural flexibility does not dilute the court's responsibility. The questions must still cover every material circumstance, and the written statement must still be weighed and addressed in the judgment. A court that permits a written statement and then ignores it in the reasoning repeats the very error condemned in Reena Hazarika. The judgment writer should note in the relevant segment whether the examination was oral or by written statement, and proceed to consider the content either way.

Drafting the Statement-of-Accused Segment in the Judgment

In a model criminal judgment the segment is concise but complete. After narrating the close of prosecution evidence, the judgment should state that the incriminating circumstances appearing in the evidence were put to the accused under Section 313 CrPC (or Section 351 BNSS), that the examination was conducted without oath, and that the accused was afforded an opportunity to explain. It should then summarise, circumstance by circumstance, what the accused said — typically that he denied the prosecution allegations, pleaded false implication, and either led defence evidence or chose not to. Where the accused set up a specific defence (alibi, self-defence, accident, lack of intention), the judgment must record it here verbatim or in substance, because the later appreciation section will have to engage with it.

A few drafting cautions follow from the case law. First, do not merely write “the accused was examined under Section 313 and denied the charge” without indicating that the material circumstances were actually put — Raj Kumar @ Suman requires the record to show that each material circumstance was confronted. Second, keep this segment factual; the assessment of whether the explanation is true belongs to the appreciation section, not here. Third, ensure consistency with the earlier statement of the prosecution case: every incriminating circumstance recorded there as forming part of the prosecution narrative should be traceable to a question put to the accused. This cross-referencing discipline is what separates a reversal-proof judgment from a vulnerable one.

Common Errors and How to Avoid Them

Several recurrent mistakes surface on appeal. The first is the omnibus question — putting a bundle of facts in one compound question so that the accused cannot meaningfully respond; Tara Singh and Raj Kumar @ Suman both condemn this and require separate, specific and distinct questions. The second is the un-put circumstance — relying in the judgment on a fact never confronted to the accused; Sharad Birdhichand Sarda requires such a circumstance to be excluded entirely. The third is the ignored explanation — failing to discuss the defence the accused actually offered; Reena Hazarika treats this as a vitiating omission. The fourth is over-reliance — convicting on the 313 answer alone, contrary to sub-section (4)'s limited “taken into consideration” standard.

A fifth, subtler error is treating the 313 segment as the place to evaluate the truth of the explanation. The segment should record what was put and what was answered; the question whether the explanation is credible belongs to the appreciation of evidence, where it must be tested against the standard of preponderance of probabilities recognised in Reena Hazarika. Mixing the two muddies the judgment and makes it harder for an appellate court to see whether the trial court actually applied the correct test.

The antidote in each case is the same: a faithful, complete examination at the trial stage and a judgment that records it accurately and engages with it in the reasoning. Because the 313 examination sits at the junction of procedure and substance, getting it right protects the entire judgment. Read together with the plea of the accused and the charge framed against the accused, the Statement of the Accused completes the triad of moments at which the criminal court formally hears from the person it is about to judge — and the quality of the judgment is measured, in no small part, by how seriously it takes that hearing.