In An Appeal Deserving Dismissal (Section 386 of CrPc)

Legal provisions regarding in an appeal deserving dismissal under section 386 of the Code of Criminal Procedure, 1973.

As per Section 386(1) of the Code, if the Appellate Court considers that there is no sufficient ground for interfering, it may dismiss the appeal.

Image Source: thestar.com

In an appeal from an order of acquittal:

According to Section 386(l)(a) of the Code, the Appellate Court may reverse the order of acquittal and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. An appeal against an order of acquittal can lie only to the High Court, and if the State does not appeal an acquittal, it becomes final.

The principles to be followed by Appellate Court in exercise of its powers in acquittal cases under Section 386(a) of the Code are:

(i) First, the Appellate Court has full powers to review the evidence upon which the order of acquittal is founded;

(ii) The appellate Court should give proper weight and consideration to such matters like, the view of the Trial Judges as to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of an appellate Court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witness.

(iii) The appellate Court in coming to its conclusion should not only consider every matter on record having a bearing on the questions of fact and the reason given by the Court below in support of its order of acquittal, but should also express those reasons to hold that the acquittal was not justified.

(iv) As the appellate Court has to give the benefit of doubt to the accused if there are two views of reasonably possible evidence, the view in favour of acquittal must prevail.

In an appeal from a conviction:

The appellate Court may choose anyone of the following courses in an appeal from a conviction:

(i) According to Section 386(b) (i) of the Code, the appellate Court may, in an appeal from a conviction reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial.

Retrial means continuation of the original trial. An order for retrial may be made only in exceptional cases. If the appellate Court is satisfied that the trial court had no jurisdiction to try the case or that the trial was vitiated by some serious illegality or irregularity, the accused should be put on his trial again.

(ii) As per Section 386(b) (ii) of the Code, the appellate Court, in an appeal from a conviction, may alter the finding, maintaining the sentence. Here ‘alter the finding’ means alter the finding of the conviction and not the finding of acquittal.

(iii) According to Section 386(b) (iii) of the Code, the appellate Court, in an appeal from a conviction, May with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. A sentence is said to be enhanced when it is made more severe.

In an appeal for enhancement of sentence:

According to Section 386(c) of the Code of Criminal Procedure, in an appeal for enhancement of sentence, the appellate Court may:

(i) Reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence; or

(ii) After the finding maintaining the sentence; or

(iii) With or without altering the finding, alter the nature or the extent or, the nature and extent, of the sentence, so as to enhance or reduce the same.

According to first proviso to Section 386 of the Code, the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Further, as per second proviso to Section 386 of the Code, the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

In an appeal from any order:

As per Section 386(d) of the Code, the appellate Court may in an appeal from any other order, alter or reverse such order.

Consequential or incidental order:

According to Section 386(e) of the Code, the appellate Court may make any amendment or any consequential or incidental order that may be just or proper.

Indication of reasons necessary for appellate Court reversing judgment of trial Court:

Arguments are not substitutes for reasoning. More so when the appellate Court upsets conclusions of lower Court. A party is not permitted to say that the arguments are what the Court intended to accept or to convey. When the appellate Court concurs with the views of the trial Court the necessity for elaborately dealing with various aspects may not always be necessary.

But when a view contrary to that of the lower Court is expressed, it is imperative that reasons therefore should be clearly indicated. There is no scope for any departure from this basic requirement. Therefore, the plea of the accused respondents that even though the judgment of the High Court is not very elaborately reasoned, yet it can be supplemented by arguments is a fallacious one.

Appeal against conviction—Trial Court committed a serious error in altering the finding:

Where it was shown by evidence on reading as a whole together with evidence of eyewitnesses that complainant was an eyewitness to the incident, held that trial Court had committed a serious error in arriving at a finding that complainant was not an eyewitness to such incident. Therefore, said finding was altered under Section 386 to effect that complainant was an eyewitness to the incident in question.

Interference by High Court disapproving course adopted by trial Court justified.—The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process. It is a compelling reason for interference.

The trial Court appears to have discarded the defence version highlighting unacceptability of the prosecution version, and came to a conclusion that the shot was made from a close range on the courtyard. This plea was taken at the argument stage by the prosecution, trying to read prosecution evidence in a manner so that the ocular evidence and medical evidence do not appear to be irreconcilable.

The High Court was right in disapproving the course adopted by the trial court. It is an established position in law that prosecution can succeed by substantially proving the version it alleges. It must stand on its own legs and cannot take advantage of the weakness in defence case.

The court cannot on its own make out a new case for the prosecution and convict the accused on that basis. Only when a conclusion is arrived at on the evidence and the substratum of the case is not changed, such a course is permissible.

The High Court noticed the medical evidence to be consistent with the defence version that the deceased was hit by the gunshot from a close range and that she was accidentally shot in the scuffle between the informant party and the accused. Coming to the acceptability of the dying declaration, the High Court has rightly discarded it.

Appeal against conviction—Appellate Court should not lean in favour of acquittal:

The High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none reasonably exists.

A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females or minor children. The Courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women, particularly of tender age and children.

Duty of Appellate Court—While reversing order passed by the trial Court it should assign reasons:

The High Court by recording the concessions shown by the counsel in the criminal proceedings refrain from assigning any reason even in orders by which it reverses the orders of the lower Courts. In our opinion, this is not proper if such orders are appealable, be it on the ground of concession shown by the learned counsel appearing for the parties or on the ground that assigning of elaborate reasons might prejudice the future trial before the lower Courts.

The High Court should not, unless for very good reasons desist from indicating the grounds on which their orders are based because when the matters are brought up in appeal, the Court of appeal has every reason to know the basis on which the impugned order has been made. It may be that while concurring with the lower Courts’ order, it may not be necessary for the said appellate Court to assign reasons but that is not so while reversing such orders of the lower Courts.

It may be convenient for the said Court to pass orders without indicating the grounds or basis but it certainly is not convenient for the Court of appeal while considering the correctness of such impugned orders. The reasons need not be very detailed or elaborate, lest it may cause prejudice to the case of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order. The need for delivering a reasoned order is a requirement of law which has to be complied with in all appealable orders.

In a murder case, the accused was acquitted disbelieving the evidence as to sequence of events in which deceased was assaulted. The incidents were found contradicted by the post-mortem report. Evidence of prosecution witnesses also contradicted the story as given in F.I.R. Acquittal recorded by disbelieving prosecution case. The High Court while dealing with an appeal from a judgment of acquittal had almost reproduced the F.I.R. as also the depositions of the prosecution witnesses.

The Supreme Court held that the judgment of the High Court cannot be sustained as the appellant Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt and further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court. The Supreme Court ordered that the appellant shall be released forthwith.

Appeal against inadequacy of sentence:

In appeal against inadequacy of sentence for dishonour of cheque could be filed only by the State before the High Court.