Producing Photographs After Examination Under Section 315 CrPC Without the Accused Deposing as a Witness

A recurring procedural question in criminal trials is whether an accused, who has already been examined under Section 315 of the Code of Criminal Procedure, 1973, can later produce photographs or other documents and have them marked as exhibits without the accused himself being further examined as a defence witness. The question arises because Section 315 deals with the accused as a witness, while the production and marking of documents is governed by the general law of evidence. The two operate on different footings, and conflating them creates unnecessary confusion at the trial stage.

What Section 315 CrPC Actually Provides

Section 315(1) makes an accused person a competent witness for the defence:

Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial. 2010 7 Supreme 226

The provision is enabling, not compulsory. Two safeguards built into it are fundamental:

• The accused cannot be called as a witness except on his own request in writing.
• His failure to give evidence cannot be made the subject of any comment by any party or the Court, nor give rise to any presumption against him 2010 7 Supreme 226.

Courts have consistently emphasised that Section 315 permits an accused person to be a witness on his own volition and, being an exception carved out of the constitutional protection against self-incrimination under Article 20(3), it must be applied strictly

Abdul Razak @ Abu Ahmed, S/o. K. P. Ahmed Kunji VS Union of India

Why Marking a Photograph Does Not Require the Accused to Take the Oath

The production and marking of documents — including photographs — is not the same thing as the accused becoming a competent witness. The law of evidence separately regulates how documents are tendered and proved. For a document to be marked as an exhibit, a party must satisfy the Court, on a prima facie basis, that:

1. the contents of the document are proved (the document exists);
2. any signature or handwriting on it is proved (it is genuine);
3. where required, the person tendering it has personal knowledge of its contents; and
4. the document is not inherently inadmissible on some other ground, and is properly stamped if the law so requires 2025 0 Supreme(Pat) 81.

Crucially, the Supreme Court has cautioned that a trial court cannot mark document through any witness it chooses — the document must be tendered through someone competent to prove it 2025 0 Supreme(Pat) 81.

Applied to photographs, this means:

• Photographs can generally be marked through any competent witness who can speak to what they depict and how they came into existence — including a defence witness, or even through the accused if he chooses to depose under Section 315.
• The accused is not obliged to enter the witness box merely to get his documents marked. If he tenders a photograph without proving its contents through any witness, the document may be marked but may carry little or no evidentiary value unless proved through some admissible material.
• Marking and proof are distinct steps. A court may mark a document while its evidentiary worth is determined later, subject to objection and proof.

The Correct Sequence in a Criminal Trial

The practical sequence matters. Under Section 313 CrPC, the accused is questioned about the incriminating circumstances appearing against him, and this examination is of relevance for finding out the truth and examining the veracity of the case of the prosecution. After that questioning, the accused is entitled to take a call on the question of examining defence witnesses and leading other evidence 2025 0 Supreme(Pat) 81. This makes clear that defence evidence — witnesses and documents alike — follows the Section 313 examination, and the accused then decides whether to:

• lead defence evidence through other witnesses only;
• also offer himself for examination under Section 315 by a written request; or
• produce documents without personally deposing.

Where an accused does depose after the Section 313 examination, the resulting evidence is required to be considered in light of... Section 315 of Cr.P.C. and must be in disproof of the charges, not in aid of the prosecution case 2015 0 Supreme(Del) 367. But nothing in this framework makes personal deposition a precondition for marking documents.

Role of the Court's Power Under Section 311 CrPC

If a photograph surfaces late in the trial, the court's power under Section 311 CrPC becomes relevant. That provision exists as it is a voyage towards discovery of truth, and under it marking of document, examination, re-examination, cross-examination and further cross-examination can take place 2024 0 Supreme(Kar) 397. Courts have stressed, however, that this power must be exercised judiciously and not merely to fill lacunae in evidence 2026 0 Supreme(Ker) 194.

A related point: for electronic or digital photographs, a certificate under Section 65B of the Evidence Act is ordinarily required, but the Supreme Court has treated the absence of such a certificate at the time of production as a curable defect, holding that electronic evidence can be marked at any time during trial

Santhosh Shet VS State of Karnataka

Practical Takeaways for the Accused and Defence Counsel

• An accused may produce photographs as defence evidence without examining himself under Section 315; the written request under Section 315 is only needed if he wants to personally depose on oath 2010 7 Supreme 226.
• Marking alone is not proof; the photograph's contents should be established through a competent witness, failing which its value may be minimal 2025 0 Supreme(Pat) 81.
• The accused's election to lead or withhold defence evidence comes after the Section 313 examination 2025 0 Supreme(Pat) 81.
• If the accused does testify, false statements made on oath can be used against him as a relevant circumstance 2019 0 Supreme(Del) 2166.
• Digital photographs should ideally be accompanied by a Section 65B certificate, though its absence is curable

  Santhosh Shet VS State of Karnataka

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• Any unproved or unmarked material can still be brought on record through the court's Section 311 power, exercised judiciously 2026 0 Supreme(Ker) 194.

Conclusion

The better view is that an accused can have photographs marked as defence exhibits without first being examined as a witness under Section 315 CrPC, because Section 315 concerns the accused's competence and option to depose personally, while marking and proof of documents follow the ordinary rules of evidence. The practical risk lies not in marking but in proof — an unexplained photograph may sit on the record with little weight. Since trial practice varies and courts retain discretion over the manner of receiving evidence, parties should assess their specific case with a qualified criminal practitioner before deciding how to tender defence material.