By Shailendra Shukla and Yash More
The word “appeal” is not defined in the Criminal Procedure Code, 1973 (“Cr.P.C”). As per the Black Law’s Dictionary[i], an appeal is defined as “a complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in which the error or injustice is sought to be corrected or reversed.” Section 378 of the Cr.P.C defines the avenue for presenting an appeal against acquittal. Section 378(1) empowers the State Government to direct the public prosecutor to present an appeal to the High Court from an original or appellate order passed by any Court other than High Court, or passed by the Court of Session in revision.
Even though the CrPC allows various appeals such as an appeal against conviction, against an order convicting the accused for a lesser offence and against an order imposing inadequate compensation, it is purported that an appeal against an order of acquittal under Section 378 has to generally meet a higher gauge for the court to reverse an acquittal. This article aims to delve into the reasons for such differential treatment of appeals, the difficulties faced by high courts in assessing evidence, especially witness statements and identify the possible outcomes of such appeals.
Reversal of Acquittal
The Supreme Court, in State of Rajasthan v. Shera Ram has very eloquently explained that:
“There is a very thin but fine distinction between an appeal against conviction and acquittal. The preponderance of judicial opinion of this Court is that there is no substantial difference between these two appeals except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction.”
In simpler words, there is a narrower scope of interference by the High Court in appeals against acquittal than an appeal against conviction. This is ostensibly why before the complainant or State can appeal against the acquittal, they have to obtain leave from the High Court, which is not a necessity in the case of convictions. This is owing to the reason that the presumption of innocence is strengthened by the verdict given by the lower Court, and the High Court has to take cognizance of said judgement as fortifying the position of the acquitted when deciding the case.
Following this line of criminal jurisprudence, the Supreme Court further elevated the standard for appeals against acquittal through a catena of judgements. In Raju Khima v. State of Saurasthra, it was held that “the High Court should not disturb acquittal if it’s based on reasonable and plausible grounds. Subsequently, in Harijana Thirupala v. Public Prosecutor, the High Court of Andhra Pradesh held that “The High Court would not interfere with the order of acquittal merely because it thinks that as a Trial Court it would have recorded conviction.” A more rigid and directive interpretation was found in Tota Singh v. State of Punjab, where the Supreme Court held that “Where two views are possible, interference with the order of acquittal is not proper, even if the view of the Trial Court is erroneous.” Thus, the High Court in an appeal has a very narrow scope of interference and rectification of the errors of the trial court, if any.
The Evidence Dilemma
It is imperative to realise that the High Court, in deciding an appeal has to ostensibly meet a higher degree of convincing, compared to if they were deciding as the trial court. However, what adds to the predicament is the fact that despite the need for meeting higher standards, they have a restrained ability to evaluate and appreciate existing evidence. When hearing an appeal, the Apex Court has laid down that the High Court shall have power to re-appreciate/review evidence.[ii] This power, however, comes with a caveat.
In Bir Singh v. State of UP, the Supreme Court held that though the appellate court has the power to take additional evidence in a suitable case, yet the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence. In Harijan Megha v. State of Gujarat, the Court stated that if the view taken by the trial court was borne out by evidence and reasonably possible, High Court cannot interfere with it by taking a different view of the evidence. Therefore, unless the High Court’s own analysis of the evidence leads to an unreservedly different conclusion, where no other outcome is possible, only then can they affect the reversal of an acquittal.
The primary difficulty is with regard to witness statements collected as evidence. Section 3 of the Evidence Act, 1872 includes two kinds of evidence, i.e. oral and documentary. Oral evidence generally is the statements given by witnesses. The court itself has a duty to judge the credibility of the witness as has been held in a plethora of judgements. In Ram Chandra Rambux v. Champabai & Ors., the Supreme Court relayed that,
“It is open to the court to look into surrounding circumstances. In order to judge the credibility of the witness, the court is not confined only to the way, in which the witnesses have deposed or to the demeanour of witnesses, but it is open to looking into the surrounding circumstances, as well as the probabilities’, so that it may be able to form a correct idea of the trustworthiness of the witnesses.”
Trial Courts and Demeanour Evidence
An integral part of evaluating witnesses is the concept of demeanour evidence, which refers to the non-verbal cues given by a witness while testifying, including voice tone, facial expressions, body language[iii], and other cues such as the manner of testifying, and the witness’s attitude while testifying. This review is carried out by the trial court, and the High Court has to confine itself to the analysis that the trial court forms on the basis of their judgement of the witnesses. At the same time, the High Court has to meet a higher standard of reasoning against acquittal with the second-hand review, and firm precedents which say that decisions on the basis of evidence must not be overturned, even if the High Court believes the trial court was erroneous, or the High Court itself would have reached a different verdict at that stage.
Demeanour Evidence has been assumed to be crucial for determining whether a witness is telling the truth or falsehood.[iv] However, most High Courts do not get the opportunity to review witnesses themselves, as recalling witnesses is a rare practice. In fact, it has been stated by the Supreme Court that the reinforcement of the presumption of innocence due to a trial court acquittal, should ideally make the appellate courts tread cautiously, especially because the trial courts had the advantage of seeing the witnesses and hearing their evidence, which is why the reversal can be only for substantial and compelling reasons.[v] This view was further reiterated in Ashok Kumar v. State of Rajasthan where the Court held that since the trial court had the occasion to watch the demeanour of witnesses, an acquittal would not be interfered with on mere probability or possibility but in perversity or misreading interference is imperative otherwise the existence of power shall be rendered meaningless.
Re-examination of Witnesses by Appellate Court
Section 311 of the Cr.P.C allows a Court to re-examine a witness, and this power is principally unfettered. In Manju Devi v. State of Rajasthan, the Supreme Court stated: “It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone.”
However, the prevailing opinion in the higher judiciary is to exercise such powers in a limited fashion. In Abdul Latif v. State of UP, the Supreme Court held that only such witnesses should be called by the High Court who is necessary for a just examination of the case. This approach of sparingly re-calling witnesses has been followed by and large by High Courts. So while the discretionary powers are unfettered, in principle, they have to be used prudently and only if necessary to do so for the cause of justice.
In reality, the High Court pragmatically only has the option of relying on the trial court analysis of witnesses and admissible evidence and evaluating the case on that basis. This is especially problematic with respect to witnesses at stages of scepticism and deliberation in a trial because the demeanour of a victim can reveal much to an experienced judge, and it is likely that the judge’s power of reviewing witness statements in view of their behaviour heavily factors into the consequent ruling.
It is quite evident that the High Courts face a substantial challenge in adjudicating upon an appeal against acquittal. What exacerbates this plight is that usually, the High Court verdict is final, as an appeal to Supreme Court is only valid under certain circumstances, usually when the accused is convicted and sentenced for more than 10 years or awarded the death penalty, or if the High Court deems a case to be fit for the Supreme Court. Additionally, the High Courts have often criticised trial courts for the faulty appreciation of evidence. With a limited ability to review witness-related evidence, it often leads to a long deliberation period for the high court and potentially inefficient justice for the appellants.
[The co-authors are second-year students at Gujarat National Law University, Gandhinagar.]
[i] A Dictionary of Law (7 ed.) Jonathan Law and Elizabeth A. Martin.
[ii] Girja Prasad v. State of MP (2007) 7 SCC 625
[iii] Gregory L. Ogden, The Role of Demeanor Evidence in Determining Credibility of Witnesses in Fact Finding: The Views of ALJs, 20 J. Nat’l Ass’n Admin. L. Judges. (2000)
[v] Surajpal Singh AIR 1952 SC 52