First Appellate Court to Independently Assess the Evidence, Even If No Ground is Taken in Appeal Memorandum

Saji Koduvath, Advocate, Kottayam.

Abstract

  • The first appeal court must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.
  • First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law.
  • The first appellate court must, being the final court of fact, give reasons for its decision on each point independently to that of the trial court.
  • The first appellate court must consider, and discuss the entire evidence in detail.
  • The first appeal is a valuable right of the parties and unless restricted by law.
  • In the first appeal, the parties have a right to be heard both on questions of law and on facts and the judgment.

CIVIL CASES: First Appellate Court To Independently Assess The Evidence

In B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 10 SCC 551, the Supreme Court of India held as under:

  • “The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put- forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and Others vs. Sangram and Others, (2001) 4 SCC 756].” (Quoted in: H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492; 2011-4 SCC 240)

In H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492; 2011-4 SCC 240, it is held as under:

  • “18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evidence from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate courts judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing.  It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.
    • (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh, AIR 1963 SC 146;
    • Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124;
    • G. Amalorpavam  v. R.C. Diocese of Madurai, (2006) 3 SCC 224;
    • Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and
    • Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary, AIR 2007 SC 2380)

CRIMINAL CASES: First Court of Appeal Must Re-Appreciated The Entire Evidence

In State of Punjab v. Bhag Singh, AIR 2004 SC 1203; 2004-1 SCC 547  (Doraiswamy Raju, Dr. Arijit Pasayat, JJ.), it is held as under:

  • “5. The trial Court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial Court was at lapse in this regard the High Court was obliged to undertake such an exercise by entertaining the appeal. The trial Court on the facts of this case did not perform its duties, as was enjoined on it by law. The High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. It has failed to do so. The questions involved were not trivial. The requirement of independent witness and discarding testimony of official witnesses even if it was reliable, cogent or trustworthy needed adjudication in appeal. The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal, by the appellate forum, has been lost once and for all. The manner in which appeal against acquittal has been dealt with by the High Court leaves much to be desired. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable.” (Also See: State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794; 2004-5 SCC 568, Doraiswamy Raju, Dr. Arijit Pasayat, JJ.)

In Ghurey Lal v. State of U.P., (2008) 10 SCC 450, as follows:

  • “1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law.
  • 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent.
  • 3. Due or proper weight and consideration must be given to the trial court’s decision. This is especially true when a witness’ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
  • In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court’s acquittal:
  • The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so.
  • A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court’s decision. “Very substantial and compelling reasons” exist when:
    • The trial court’s conclusion with regard to the facts is palpably wrong;The trial court’s decision was based on an erroneous view of law;The trial court’s judgment is likely to result in “grave miscarriage of justice”;The entire approach of the trial court in dealing with the evidence was patently illegal;The trial court’s judgment was manifestly unjust and unreasonable; The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
    • This list is intended to be illustrative, not exhaustive.”

Reasons For Interference Against Trial Court’s Acquittal

In S. Anil Kumar v. State of Karnataka, (2013) 7 SCC 219, it is held as under:

  • “Only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal.”

In Rohtash v. State of Haryana, (2012) 6 SCC 589: AIR 2012 SC 2297, it was observed as under:

  • “The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
  • (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : AIR 2011 SC 2271 : 2011 AIR SCW 3889
  • Govindaraju v. State, (2012) 4 SCC 722 : AIR 2012 SC 1292 : 2012 AIR SCW 1994).”

If two views possible, one favourable to accused not be disturbed

In Ramaiah @ Rama v. State of Karnataka, 2014 (9) SCC 365, it has been held by Hon’ble Apex Court that if two views are possible on the evidence adduced and the one favourable to the accused has been taken by the trial court, it should not be disturbed.

  • “30. This very principle of law was formulated by the Court in M. Madhusudhan Rao (supra) in the following manner:
  • “13. There is no embargo on the appellate court to review, reappreciate or reconsider the evidence upon which the order of acquittal is founded. Yet, generally, the order of acquittal is not interfered with because the presumption of innocence, which is otherwise available to an accused under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a court of law, gets further reinforced and strengthened by his acquittal. It is also trite that if two views are possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. Nevertheless, where the approach of the lower court in considering the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to the characterised as perverse, then, to prevent miscarriage of justice, the appellate court is obliged to interfere.
  • 14. All these principles have been succinctly culled out by one of us (C.K. Thakker, J.) in Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415 : AIR 2007 SC (Supp) 111 : 2007 AIR SCW 1850″.
  • 31. In Chandrappa (supra), which was followed in the aforesaid case, the Court had observed:
  • “44. In our view, if in the light of above circumstances, the trial court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of the appellate court are as wide as that of the trial court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. In this case, a possible view on the evidence of prosecution had been taken by the trial court which ought not to have been disturbed by the appellate court. The decision of the appellate court (the High Court), therefore, is liable to be set aside.”

 In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 : AIR 2003 SC 3601, Court observed thus:

  • “7. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the 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, it is a compelling reason for interference.” (Emphasis Supplied).
  • 16. Therefore, the argument of the learned counsel for the appellant that the High Court has erred in reversing the acquittal of accused appellant, stands good. The Additional Sessions Judge was right in granting him benefit of doubt. The view which favours the accused/appellant has to be considered and we discard the opposite view which indicates his guilt.
  • 17. We are also of the view that the High Court should not have interfered with the decision taken by the Additional Session Judge, as the judgment passed was not manifestly illegal, perverse, and did not cause miscarriage of justice. On the scope of High Court’s revisional jurisdiction, this Court has held in Bindeshwari Prasad Singh v. State of Bihar, (2002) 6 SCC 650 : AIR 2002 SC 2907, “that in absence of any manifest illegality, perversity and miscarriage of justice, High Court would not be justified interfering with the concurrent finding of acquittal of the accused merely because on re-appreciation of evidence it found the testimony of PWs. to be reliable whereas the trial Court had taken an opposite view.” This happens to be the situation in the matter before us and we are of the view that the High Court was wrong in interfering with the order of acquittal of Upendra Pradhan passed by the Additional Sessions Judge.
  • 18. The Second ground pleaded before us by the counsel for the accused appellant, that the testimonies of P.W. 1 and P.W. 7 should not have been considered, as they were interested witnesses, holds no teeth. We are of the opinion that the testimonies of interested witnesses are of great importance and weightage. No man would be willing to spare the real culprit and frame an innocent person. This view has been supplemented by the decision of this Court in Mohd. Ishaque v. State of West Bengal, (2013) 14 SCC 581.
  • * *
  • 22. Therefore, in the light of the above discussion, we allow this appeal and set aside the impugned judgment and order passed by the High Court. The appellant has been released on bail vide this Court’s order dated 15.04.2014. His bail bonds are discharged.”

In V. Sejappa Vs. State AIR 2016 SC 2045, our Apex Court observed as under”:

  • “21. If the evaluation of the evidence and the findings recorded by the trial court does not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State through Inspector of Police, A.P. v. K. Narasimhachary, (2005) 8 SCC 364, this Court reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian v. State of T.N., (2006) 1 SCC 401.
  • 22. In Muralidhar alias Gidda and Anr. v. State of Karnataka, (2014) 5 SCC 730, this Court noted the principles which are required to be followed by the appellate court in case of appeal against order of acquittal and in paragraph (12) held as under:-
  • .”12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in
    • Tulsiram Kanu, AIR 1954 SC 1,
    • Madan Mohan Singh, AIR 1954 SC 637,
    • Atley, AIR 1955 SC 807,
    • Aher Raja Khima, AIR 1956 SC 217,
    • Balbir Singh, AIR 1957 SC 216,
    • M.G. Agarwal, AIR 1963 SC 200,
    • Noor Khan, AIR 1964 SC 286,
    • Khedu Mohton, (1970) 2 SCC 450,
    • Shivaji Sahabrao Bobade, (1973) 2 SCC 793,
    • Lekha Yadav, (1973) 2 SCC 424,
    • Khem Karan, (1974) 4 SCC 603,
    • Bishan Singh, (1974) 3 SCC 288,
    • Umedbhai Jadavbhai, (1978) 1 SCC 228,
    • K. Gopal Reddy, (1979) 1 SCC 355,
    • Tota Singh, (1987) 2 SCC 529,
    • Ram Kumar, (1995) Supp 1 SCC 248,
    • Madan Lal, (1997) 7 SCC 677,
    • Sambasivan, (1998) 5 SCC 412,
    • Bhagwan Singh, (2002) 4 SCC 85,
    • Harijana Thirupala, (2002) 6 SCC 470,
    • C. Antony, (2003) 1 SCC 1,
    • K. Gopalakrishna, (2005) 9 SCC 291,
    • Sanjay Thakran, (2007) 3 SCC 755 and
    • Chandrappa, (2007) 4 SCC 415.
  • It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
  • .(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
  • (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
  • (iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
  • (iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.”

Raghunath Laxman Makadwada v. State of Maharashtra, AIR 1986 SC 1070; 1986-2 SCC 90, observed as under:

  • “In Shivaji Narayan Bachhav v. State of Maharashtra, (1983) 4 SCC 129, we had referred to several of the earlier cases and stated :
  • “The appeal of the accused of the High Court was dismissed summarily with the one word dismissed, placing this Court in a most embarrassing position in dealing with the special leave petition under Article 136 of the Constitution. Such summary rejection of appeals by the High Court has been disapproved by this Court more than thirty years ago in Mushtak Hussein v. State of Bombay (AIR 1953 SC 282) and thereafter, over the years, in a series of cases from the same High Court :
    • Shreekantiah Ramayya v. State of Bombay, (AIR 1955 SC 287),
    • Vishwanath Shankar Beldar v. State of Maharashtra, (1969 (3) SCC 883),
    • Siddanna Apparao Patil v. State of Maharashtra, (AM 1970 SC 977),
    • Narayan Nathu Naik v. State of Maharashtra, (AIR 1971 SC 1656),
    • Govinda Kadtuji Kadam v. State of Maharashtra, (AIR 1970 SC 1033),
    • Shaikh Mohd. Ali v. State of Maharashtra, (AIR 1973 SC 43),
    • Kapurchand Kesrimal Jain v. State of Maharashtra, (AIR 1973 SC 243),
    • Jeewan Prakash v. State of Maharashtra (AIR 1973 SC 278),
    • Mushtaq Ahmed v. State of Gujarat, (AIR 1973 SC 1222),
    • Krishna Vithu Suroshe v. State of Maharashtra, (AIR 1974 SC 274),
    • Sampat Tatyada Shinde v. State of Maharashtra, (AIR 1974 SC 791),
    • Dagadu v. State of Maharashtra, (AIR 1981 SC 1218).
  • We are pained and not a little perturbed, that despite the long series of judgments all arising from cases from the same High Court has not chosen to correct itself and continues in the error of its ways. Except in certain cases when an accused person has pleaded guilty and in petty cases, every person convicted of an offence has a right of appeal under the Criminal Procedure Code. An appeal may be both against conviction and sentence and on facts and law. A convicted person is entitled to ask an appellate Court to reappraise the evidence and come to its own conclusion. An appellate Court has the undoubted power to dismiss an appeal in limine. Section 384 of the Criminal Procedure Code provides for it. But, it is a power which must be exercised sparingly and with great circumspection. One would think a conviction for murder and a sentence of imprisonment for life, as in the case before us, were serious enough matters for the High Court to warrant admission of the appeal and fair and independent consideration of the evidence by the High Court. Summary rejection of the appeal with the laconic expression dismissed seems to be a drastic step in such cases. To so reject an appeal is to practically deny the right of appeal. We cannot also over-emphasise the importance of the High Court making a speaking order when dismissing a criminal appeal in limine.
  • “The requirement of recording reasons for summary dismissal, however concise, serves to ensure proper functioning of the judicial process.” There must be some indication that the High Court addressed itself to the questions at issue and had the record before it. In the present case there is not even an indication whether the record had been called for and whether it was before the Court. We have little option but to set aside the order of the High Court. The High Court may now admit the appeal and deal with it according to law.”

In Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965, 2001 (3) SCC 179 (CJ, R.C. Lahoti, Briijesh Kumar), it is held as under:

  • “The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it.” (Quoted in: Madhukar v. Sangram, AIR 2001 SC 2171, 2001 (4) SCC 756)

Duty on the First Appellate Court

In L.N. Aswathama v. P. Prakash, (2009) 13 SCC 229 (Harjit Singh Bedi, R. V. Raveendran, JJ.), the duty of first Appellate court was quoted in para 8 of the judgment as follows:-

  • “The first appellate court can re-appreciate evidence and record findings different from those recorded by the trial court. It is well settled that if the appraisal of evidence by the trial court suffers from material irregularity, as for example when its decision is based on mere conjectures and surmises, or when its decision relies upon inadmissible evidence or ignores material evidence or when it draws inferences and conclusions which do not naturally or logically flow from the proved facts, the appellate court is bound to interfere with the findings of the trial court. It is equally well settled that where the trial court has considered the entire evidence and recorded several material findings, the first appellate court would not reverse them on the basis of conjectures and surmises or without analysing the relevant evidence in entirety. As the final court of facts, if the first appellate court is reversing the judgment of the trial court, it is bound to independently consider the entire evidence.”

Eschewing Relevant Evidence – Appeal Court Can Consider, Even If No Ground

In the decision in Retnamma v, Mehaboob, ILR 2013-2 Ker 613; 2013-2 KHC 670; 2013-2 KLT 648, the appellants had not challenged the commission report as per appeal memo in this second appeal and no ground was also raised regarding the validity of commission report. It was argued on the basis, Boodireddy Chandraiah v. Arigela Laxmi, 2007 (8) SCC 155, that in the absence of any ground being raised in the appeal memo and also in the absence of framing of an issue by this Court relating to commission report, it would be illegal to consider the same in the second appeal. The High Court said as under:

  • “75. The above question is a substantial question of law because to resolve the dispute between the parties, it would be essential to consider the same and the factual findings on the dispute will depend upon the answer to the above question. It will be inevitable to consider the question, even to resolve the question of identity of the property, which is crucial. Therefore, the above substantial question of law is involved in this appeal and hence, both sides are heard on the same, as permitted by Section 100, C.P.C.
  • 78. In this context, it is also relevant to make a reference to Rule 109 (4) of the Civil Rules of Practice. The said provision lay down that “no question regarding the admissibility of evidence shall be made the subject of an issue“. Therefore, such an issue may not arise before the trial court.”

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