If an accused person doesn't testify, it means they must be guilty.

The law explicitly forbids treating an accused's silence, or their choice not to give evidence, as any kind of proof of guilt, and forbids comment on it by the parties or the court.

Bharatiya Nagarik Suraksha Sanhita, 2023

Section 353

Accused person to be competent witness

(1) 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: Provided that—§

(a) he shall not be called as a witness except on his own request in writing;§

(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial.§

(2) Any person against whom proceedings are instituted in any Criminal Court under section 101, or section 126, or section 127, or section 128, or section 129, or under Chapter X or under Part B, Part C or Part D of Chapter XI, may offer himself as a witness in such proceedings: Provided that in proceedings under section 127, section 128, or section 129, the failure of such person to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry.§

Why this exists

This provision protects the accused's right to silence while still allowing them the option to testify in their own defence if they wish. It reflects the principle that the burden of proof lies on the prosecution, and an accused's choice not to testify should never be treated as an admission of guilt.

How courts read it

Courts interpreting the equivalent earlier provision have consistently held that an accused's failure to testify cannot be used to draw an adverse inference against them, reinforcing the presumption of innocence and the principle that it is for the prosecution to prove guilt, not for the accused to prove innocence.

Common misconceptions

Myth: If an accused person doesn't testify, it means they must be guilty.
Fact: The law explicitly forbids treating an accused's silence, or their choice not to give evidence, as any kind of proof of guilt, and forbids comment on it by the parties or the court.