Remarks Respecting the Demeanour of a Witness | BNSS 2023

Remarks Respecting the Demeanour of a Witness: Section 315 of the BNSS, 2023, the Trial Court’s Advantage and the Limits of an Impression

A written deposition records the words a witness spoke. It does not record the pause before he answered, the moment he looked at the accused, the confidence that left him in cross-examination, or the readiness with which he answered a question he could not have anticipated. All of that was visible to the judge who tried the case and to nobody else, and none of it survives on paper.

Section 315 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the single provision that permits it to survive. It is one sentence long, it is permissive rather than mandatory, and it is one of the least used sections in the Sanhita. It is also the only bridge between what the trial court saw and what the appellate court will ever know.

1. The Provision

Section 315, BNSS 2023

When a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.

Figure 1: Why the section exists, and how a remark is used

Element	What it means
“When he has recorded the evidence”	The remark is made at the time, as part of the exercise of recording the deposition — not in the judgment months later. A recollection of demeanour offered at the end of the trial is not what the section contemplates
“shall also record”	Where there is something material to record, the section is in mandatory terms. The discretion lies in whether there is anything material, not in whether to record it once there is
“such remarks (if any)”	The section does not invite a running commentary on every witness. Most witnesses call for no remark at all, and the words “if any” make that plain
“as he thinks material”	The test is materiality: does the manner of this witness genuinely bear on his credit, or on the weight to be given to what he said?
“respecting the demeanour”	The manner and bearing of the witness — what was observed, not the conclusion drawn from it
“whilst under examination”	What occurred in the witness box, during examination, cross-examination or re-examination. Not what the witness did outside the court

2. How a Remark Should Be Framed

The commonest error in applying the section is to record a conclusion instead of an observation. A conclusion tells the appellate court what the trial judge thought; an observation tells it what the trial judge saw, and allows it to form its own view of what follows.

Not this	But this
“The witness was untruthful”	“The witness hesitated for a considerable time before answering questions about the time of the incident, and looked repeatedly towards the accused before answering”
“The witness was reliable”	“The witness answered questions in cross-examination without hesitation, including questions he could not have anticipated, and did not vary his account”
“The witness was nervous”	“The witness spoke very softly throughout and had to be asked more than once to repeat his answers; he wept when describing the injuries to the deceased”
“The witness was evasive”	“The witness twice declined to answer a direct question until it was repeated by the Court, and on each occasion answered a different question from the one put”
“The witness appeared tutored”	“The witness used the same sequence of phrases as the previous witness, and on being asked to describe the scene in his own words was unable to add any detail”

⚠ Three cautions on recording a remark

Record the observation, not the verdict. The judge who writes “the witness was lying” has decided the case in the deposition sheet and told the appellate court nothing it can test.

A remark on demeanour is not a substitute for reasons. Where a finding is founded in part on demeanour, the judgment must still set out the other material that supports it. Demeanour strengthens a conclusion reached on the evidence; it does not replace one.

Be conscious of what demeanour is not evidence of. Nervousness in a witness box is ordinary, and is as consistent with truthfulness as with falsehood. Illiteracy, unfamiliarity with courts, distress at recalling an event, a language barrier and simple fear all produce a manner that can be mistaken for evasion.

3. The Trial Court’s Advantage

Figure 2: The advantage, and how it is reconciled with appellate review

📖 Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793

Facts: An appeal against acquittal raised the question of how far an appellate court may interfere with the assessment of witnesses made by the court that saw and heard them, and how the presumption of innocence and the trial court’s advantage bear on that question.

Held: The Supreme Court held that the appellate court has full power to review the evidence and to reach its own conclusion, but must give proper weight and consideration to the view of the trial Judge as to the credibility of witnesses, because he had the advantage of seeing and hearing them give evidence. That advantage is real and must not be disregarded. But the Court held equally that the advantage does not insulate the finding from scrutiny: the appellate court must examine the evidence itself, and where the conclusion of the trial court is against the weight of the evidence, or rests on a misreading of it, or ignores material considerations, it must be set aside. The Court made the observation, often quoted since, that the dangers of exaggerated devotion to the rule of benefit of doubt are as real as the dangers of a wrongful conviction, and that a judge does justice to the community as well as to the accused.

Ratio: An appellate court must give proper weight to the trial court’s assessment of credibility, because it saw and heard the witnesses. But the advantage does not insulate the finding, and a conclusion against the weight of the evidence will be set aside.

📖 Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225

Facts: The High Court, in an appeal against an acquittal, reappraised the evidence and substituted its own conclusion for that of the trial court. The question was the approach an appellate court should take in an appeal against acquittal, and how it should deal with the trial court’s view of the witnesses.

Held: The Supreme Court held that in an appeal against acquittal the appellate court must first record its conclusion on whether the findings of the trial court are illegal, or affected by an error of law or of fact, or perverse — and only if it so concludes may it proceed to reappraise the evidence and reach its own finding. It is not enough that the appellate court, on a fresh appraisal, would have taken a different view: where the view taken by the trial court is a reasonably possible one on the evidence, it must stand, even if another view is also possible. The Court emphasised that the trial court has the advantage of having watched the demeanour of the witnesses, and that an appellate court must address itself to the reasons that persuaded the trial court before displacing them.

Ratio: In an appeal against acquittal the appellate court must first find the trial court’s findings to be illegal, erroneous or perverse. Where the view taken is reasonably possible, it stands, and the trial court’s observation of demeanour is part of what must be addressed.

4. The Limits of Demeanour

It is one circumstance among many. A conclusion resting on demeanour alone, against the probabilities, the documents and the rest of the evidence, will not stand. Demeanour supports a finding; it does not carry one by itself.
The absence of a remark proves nothing. The section says “if any”. A judge who records no remark has not thereby found the witness impressive or unimpressive; he has recorded nothing, and no inference either way is available.
A remark is not a finding. It is an observation recorded contemporaneously, and the weight it carries is a matter for the court that reads it, in the light of everything else on the record.
Manner is a poor guide in many cases. Witnesses unfamiliar with courts, witnesses giving evidence through an interpreter, witnesses describing a traumatic event, children, and witnesses in fear of the accused all present a manner that can be misread. The more vulnerable the witness, the less safe the inference from manner.
And the advantage diminishes with distance. Where the evidence was recorded over years by more than one presiding officer, or where the judgment was written by a successor, the advantage the rule assumes may not exist at all — which is another reason for the remark to be recorded at the time.

⚠ Demeanour and the recording of evidence by electronic means

Section 310 and section 311 now expressly permit evidence to be recorded by audio-video electronic means, and section 530 permits proceedings to be held in electronic mode. That alters the position in a way the older cases did not have to consider.

Where evidence has been recorded on video, the manner of the witness is no longer confined to the memory of the trial judge. The appellate court can, in principle, see for itself what the trial court saw, and the advantage that justified the deference is to that extent available to both courts.

It follows that a recorded proceeding may make section 315 less necessary in practice — but it does not make it unnecessary. A remark made at the time still tells a later reader what struck the judge as material at the moment it occurred, which is not the same as a recording that shows everything and emphasises nothing.

5. Key Takeaways

The position stated shortly

1. Section 315: when a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination.

2. The section exists because the trial court saw and heard the witness and the appellate court will not. It is the only means by which that observation reaches the record.

3. The remark is made at the time the evidence is recorded, not in the judgment. A recollection of demeanour offered months later is not what the section contemplates.

4. It must be material. Most witnesses call for no remark, and the words “if any” make that plain. The section does not invite a commentary on every witness.

5. It should record what was observed, not the conclusion drawn — “hesitated at length before answering and looked repeatedly at the accused”, not “was untruthful”.

6. An appellate court must give proper weight to the trial court’s assessment of credibility, because of its advantage in seeing and hearing the witnesses: Shivaji Sahabrao Bobade.

7. But the advantage does not insulate the finding. A conclusion against the weight of the evidence, or resting on a misreading, will be set aside notwithstanding it.

8. In an appeal against acquittal, the appellate court must first find the findings to be illegal, erroneous or perverse; where the view taken is reasonably possible, it stands: Ramesh Babulal Doshi.

9. Demeanour is one circumstance among many. A finding resting on it alone, against the probabilities and the rest of the evidence, will not stand; and the absence of a remark proves nothing.

10. Manner is a poor guide in the case of witnesses who are unfamiliar with courts, distressed, speaking through an interpreter, children, or in fear of the accused. The more vulnerable the witness, the less safe the inference.

6. Frequently Asked Questions

What does section 315 require?

That when a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks, if any, as he thinks material respecting the demeanour of the witness whilst under examination.

Is a remark on demeanour compulsory for every witness?

No. The words “if any” make it clear that the section applies where there is something material to record. Most witnesses call for no remark. Where there is something material, however, the section is in mandatory terms.

When must the remark be recorded?

At the time the evidence is recorded, as part of that exercise. The section speaks of the judge who has recorded the evidence also recording the remark, and an impression recalled in the judgment months later is not what it contemplates.

How should a remark be worded?

It should record the observation rather than the conclusion — what the witness did, how he answered, what was visible in the box — so that the court reading it can form its own view of what follows. “The witness was untruthful” records a verdict; “the witness hesitated at length before answering and looked repeatedly at the accused” records an observation.

Can a conviction rest on the demeanour of a witness?

Demeanour is one circumstance among many and supports a conclusion reached on the evidence; it does not carry one by itself. A finding resting on demeanour alone, against the probabilities and the rest of the evidence, will not stand.

How much weight does an appellate court give to the trial court’s view?

Proper weight, because the trial court saw and heard the witnesses. But the advantage does not insulate the finding: where the conclusion is against the weight of the evidence or rests on a misreading it will be set aside. In an appeal against acquittal the appellate court must first find the findings illegal, erroneous or perverse, and a reasonably possible view stands.

Related Topics

Record of Evidence in Summons, Warrant and Sessions Cases
Evidence in Inquiries and Trials: Sections 307 to 336, BNSS
Appeals under the BNSS, 2023: Chapter XXXI
Judgment under the BNSS, 2023: Chapter XXIX
Electronic Mode of Proceedings: Section 530, BNSS
Examination of Witnesses by the Police: Sections 179 to 182