Legal Tips for Tendering Evidence in Defence by an accused in a Criminal case: Lawyers Advice

In India, Evidence tendered by an accused in a criminal case is of paramount importance for the judicial bodies to adjudicate correctly. Further, Section 105 of the Indian Evidence Act, 1872 states that when a person is accused of any offence, the burden of proving that the present circumstances falls within any of the General Exceptions is upon him, and the Court shall presume the absence of the said circumstances.
In Raj Kumar vs. State of Maharashtra (2009) 15 SCC 292, the Hon’ble Supreme Court held that if the accused took a plea of self-defence, burden was on them under Section 105 of the Indian Evidence Act, 1872 to prove that their case would come under any of the general exceptions under the IPC.

In a Criminal Trial, the Court starts with the presumption that such circumstances did not exist and then both parties have to produce their evidence. At that time both the parties can turn the presumed facts and circumstances in his favour, with the help of evidence.

In any criminal case, the complainant must prove beyond any reasonable doubt that the accused is guilty of the said offence. The responsibility of proof of the defendants is not of such nature. If the defendant accused can satisfy the court that whatever he wanted to prove is probable by tendering the evidence in his favour, it would suffice. In any case, an accused can be convicted or punished only when the complainant has proved his case beyond a reasonable doubt. An accused should still be granted the benefit of fair doubt.

Section 313 of the Code of Criminal Procedure, 1973 states that,
In every inquiry or trial, to give the accused, chance to explain the circumstances and evidence against him, the Court-
a) may at any stage, without any previous warning to the accused, ask any questions to him as the Court considers necessary;
b) shall, after the examination of prosecutions’ witness and before examination of the accused, question him generally on the case.
c) when the accused is examined under subsection (1), he is not to administer any oath.
d) the answers given by the accused can be considered in the inquiry or trial, and put in evidence for or against him, in any other inquiry into, or trial for, any other offence which such answers, given by the accused, may tend to show that he has committed those offences.

On reading the provision, it becomes clear that the purpose of the section is to give the accused, a chance to explain any incriminating circumstances that may exist in the evidence tendered by the prosecution against him.
Recently in Reena Hazarika v State of Assam 2018 SCC OnLine SC 2281, the Hon’ble Supreme Court held that Courts have to adequately consider Defence of the Accused under Section 313 of The Code of Criminal Procedure; Non-Consideration of the Defence Evidence can vitiate Conviction.

In another Judgement by the Hon’ble Supreme Court in Samsul Haque vs. State of Assam (2019) SCC Online 1093, the observed, “The evidence that is incriminating must be presented to the accused so that the accused gets a reasonable chance to defend himself. That’s in appreciation of the audi alteram partem values.”

In case, where the accused is not being acquitted, An opportunity is given to him to produce such evidence so as to defend his case. The defence can produce oral as well as documentary evidence in his favour.
● Oral Evidence – It means and includes all statements made by the witnesses in the court.
● Documentary Evidence – A document to prove the genuineness of the facts stated by the party. This can be any document including the photocopies of a document.

Section 62 of the Indian Evidence Act, 1872 defines the term “Primary Evidence” as any document submitted before the court for inspection. Whereas, “Secondary Evidence” has been defined in Section 63 of the same act as documents including,
(1) certified copies tendered before the court;
(2) Copies made from the original documents by mechanical processes.
(3) counterparts of documents against the opposite parties, who did not execute them;
(4) oral accounts of the contents of a document given by the person who has himself verified the contents.

The defence after the statement of the accused, produces oral and documentary evidence. This provision is mentioned under in the Code of Criminal Procedure, 1973 (Section 233 for Sessions Trial, Section 243 for Warrant Trial, Section 254 (2) for Summons Trial).

The Hon’ble Delhi High Court in Shyam Manohar Saxena Vs Central Bureau of Investigation and Ors. 2019 SCC OnLine Del 8961 observed that, “According to the provisions mentioned under Section 243 of the Code of Criminal Procedure, 1973, the Trial Court is obligated to grant the permission, when the accused tries to subpoena some witness or any record in his defense. The only reason for denying such an application is whether the same was meritless, overdue or would hinder the ends of justice.”

In a criminal trial, the accused himself is also a competent witness and any statement made by him during the trial can be Cross Examined by the Prosecution. After the cross-examination and re-examination of all the witnesses and evidence tendered before the Court, the Trial moves toward the Final Stage. The accused can also apply for the process which compels the attendance of any witness or the production of any document. All the evidence whether oral or documentary can be cross-examined by the prosecution at any time of the trial.
Authored By: Adv. Anant Sharma & Chhatresh Kumar Sahu