The Art Of Writing Judgments [Part-II]

Criminal Cases

The general framework of a judgment in a criminal case is substantially similar to a civil case. The judgment must contain (i) the facts asserted by the prosecution and by the accused; (ii) the point or points for determination; and (iii) the decision on the points, with reasons therefor. The judgment in a criminal case must also set out the offence and the section of the Penal Code or other law under which the accused is convicted and must specify the sentence and or the fine imposed, as the case may be. Where the judgment is one of acquittal, the offence in respect of which the acquittal is recorded should be specified, and the judgment should direct that the accused be set at liberty. Where a conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of ten years, the judgment should state the reasons for the sentence awarded; and in case of a sentence of death, special reasons for such sentence must be carefully recorded (Sec.354 Cr.P.C.).

The critical judicial process in a criminal case commences with the framing of charges. A charge is intended to inform accurately and with certainty, the exact nature of the offence of which an accused is charged. He is entitled to be informed precisely what act he is alleged to have committed and under what provisions of the Penal Code or other law he is culpable. The charge should include: (i) A statement of offence(s) with which the accused is charged [Sec.211(1) Cr.P.C.]; (ii) If the law that creates that offence gives such offence a specific nomenclature, that name [Sec.211(2) Cr. P.C.]; (iii) If the offence is not given any specific nomenclature, so much of the definition of the offence as to give the accused notice of the offence of which he is charged [Sec. 211(3) Cr. P.C.]; (iv) The law and the specific provision under which the offence is alleged to have been committed [Sec.211(4)Cr. P.C.]; (v) Particulars of the time and place of the alleged offence and the person(s) (if any) against whom or the thing (if any) in respect of which, it was committed [Sec. 212(1)Cr.P.C]; and (vi) If the particulars mentioned above do not, in your view, provide the accused sufficient notice of the matter in respect of which he is charged, such particulars of the manner in which the alleged offence was committed as would be sufficient for that purpose [Sec. 213 Cr.P.C.].

In framing the charge, all necessary allegations and important aspects must be included, except those which are not necessary for the prosecution to prove. The charge should be precise and complete and should include particulars of all acts done and the law infringed. Expressions such as “etc” must be clearly avoided.

The Judgment:

A judgment must commence with the narration of facts pointing towards the offence(s) in respect of which the accused is charged and tried. The opening part of the judgment may also indicate whether the accused is prosecuted by the police or tried pursuant to a private complaint. Thereafter, the facts leading to the prosecution should be stated succinctly; but in sufficient detail to disclose the case of the prosecution. You should thereafter state whether the accused did or did not plead guilty and later set out, in brief, the facts offered by or on behalf of the accused as to indicate the case of the defence, where one is pleaded.

Before proceeding to discuss the evidence, the points of determination in the case should be set out. It would involve, to an extent, an analysis of the facts alleged by the prosecution and the defence if any, and the charges framed. The points for determination should be formulated so as to give a clear impression that nothing material has been overlooked. Reasons and Analysis:

In criminal, as in civil cases, reasons must be recorded for findings. The absence of reasons renders the conviction invalid and the judgment vulnerable to invalidation. Reasons should be recorded with clarity and precision to enable the appellate court to judge the sufficiency of the material before the trial court to support a conviction. The decision should be based on the evidence and not speculations or assumptions as to probabilities. A conviction based on surmises not supported by the evidence and which is neither the case of the prosecution nor of the defence would be illegal. Therefore, the evidence on the basis of which the conclusion is recorded must be set out in the judgment.

While discussing the evidence and recording final conclusions, the judgment must reveal the judge's awareness that in criminal cases normally, it is for the prosecution to prove the case, and the accused is not to be convicted merely since he offers an implausible explanation or fails to tell the truth in defence.

Where the accused claims to be tried, the judgment should note whether witnesses were examined in defence; if witnesses were summoned for the defence but not examined and the reasons, if any, for not examining witnesses. Where the defence is disbelieved, and the reasons why the defence was disbelieved, and the prosecution evidence preferred must be recorded. A judgment leading to conviction should not be based on a discussion of the defence evidence alone and must discuss the prosecution evidence as well.

In discussing the evidence and expressing a final opinion on the evidence, a consistent case throughout must be made. There must be no confusion in the analysis of evidence and in drawing conclusions therefrom. Where on, some aspects of the prosecution case and the evidence led thereon, adverse comments are recorded as to improbability, absence of veracity or probity, the judgment should clearly set out why, despite the improbabilities of those aspects of the prosecution case, the court is coming to the conclusion warranting a conviction.

The benefit of the doubt:

Where the evidence is ambiguous and inadequate to record a conviction or there are circumstances which do not clearly indicate, beyond a reasonable doubt, indicate that the accused might have committed the offence, he is entitled to the benefit of the doubt. However, this expression is not a magic formula for abdicating the obligation of analyzing the facts and recording clear and definite conclusions. Where there is a volume of acceptable evidence which is sought to be rebutted by the defence, you must apply your mind to those facts, analyse the evidence to ascertain whether the prosecution has affirmatively proved its case while juxtaposing the defence, for testing whether the prosecution's case could be true. Only thereafter and if there is a reasonable doubt that the offence has not been established by the accused, the benefit of doubt could be recorded in favour of the accused.

Identification evidence:

Identification proceedings constitute an important aspect in the proof or disproof of guilt. The value of identification however depends on two critical factors: (a) that the witnesses who identified an accused did not have an opportunity to see him after the commission of the offence; and (b) no mistake was made by these witnesses in the identification, or such errors are negligible. The evidence of identification must be subjected to close and critical scrutiny. It must be ascertained whether the accused was previously known to the witnesses or were complete strangers at the time of the occurrence. The state of light and visibility, the opportunities which the witnesses had to identify the accused, and the range and distance from which they saw the accused, are critical factors to the scrutiny. Where the accused was the only person presented for identification, the evidence on such identification is worthless. The lesser the number of persons who were present for identification along with the accused, the greater and more rigorous the scrutiny to ascertain whether proper standards for identification were maintained.

Identification of property:

Where the question of guilt or otherwise of the accused turns upon identification of the property, the substance of the evidence on this aspect must include the facts upon which witness(es) base their conclusions as to the identity of that property.

The Sentence:

Where a judgment records a conviction, it must be followed by the sentence. This last portion of the judgment is as important as the earlier parts. The judge must bear in mind the provisions of law under which the punishment is prescribed for the offence, the maximum and minimum sentence permissible under the law, and where the legal provision provides for a spectrum of punishments, you must record reasons why the quantum of sentence has been imposed. There are several types of punishments which could be inflicted for offences. These are death; imprisonment for life; imprisonment for various terms - rigorous or simple; forfeiture of property and/or fine. Combinations of the punishments are therefore numerous. You must therefore invariably and carefully look at the appropriate provisions of the law under which the accused is being convicted, to ascertain what the law mandates to be the punishment.

There are several provisions in the Code of Criminal Procedure and in other special enactments which circumscribe or describe the jurisdiction of the court to award a particular punishment. There are also limitations to jurisdiction as well. You must acclimatize yourself with these substantive provisions relating to jurisdiction while awarding the punishment. The objects of recording a punishment are several. It is just retribution for the culpable conduct, for protection of the society, and for the reformation of the offender. Reformation and rehabilitation of the offender is the current policy of penal legislation and not merely deterrence. When the law provides discretion to the judge to choose among the range of various punishments, you must remember that the discretion of the judge is the discretion of the law and not your personal and subjective discretion. It is not to be exercised arbitrarily, whimsically or fancifully. The sentence, within the authorized range of punishments, should be proportional to the nature and gravity of the culpable conduct established.

If the punishment is determined on a lenient view, the judgment must record the extenuating circumstances of the case which were considered for taking a lenient view. Similarly, when a serious view of the offence is taken, the gravity of the circumstances must be recorded to justify a severe punishment. In short, all extenuating and aggravating circumstances of the case must be considered and recorded as the reasons for the sentence imposed. A sentence must be recorded in plain language and be complete so that the concerned official who has to execute the warrant is clearly informed as to how and for what period the sentence is imposed.

A fine is a lenient form of punishment. For some offences, only a fine may be imposed, while in many other cases, the offence is punishable with imprisonment, a fine or both. In some cases, a fine is compulsory and must be imposed in addition to other sentences.

The judge must, therefore, carefully study the provisions of the law under which the accused is convicted before passing the sentence. In imposing a fine, the court must have regard to the fact that the fine should be proportionate to the means of the offender while duly considering the gravity of the offence established. A fine should not be inflicted vindictively. A substantial fine could be awarded where it is intended to compensate the complainant or the victim or where the accused has financially benefitted from the culpable conduct. If there are more than one accused, the fine should be imposed separately on the accused and in proportion to the gravity of their culpability and in proportion to their means.

In estimating the proper term of imprisonment, due regard must be given to the period during which the accused has remained in custody as an under-trial. Where the accused is tried for two or more offences, convicted, and sentenced for imprisonment separately for different offences, the sentences would run consecutively unless the judge specifies to the contrary. Therefore, whenever it is intended that the different sentences must run concurrently and not consecutively, the judgment should make it clear that the sentence should run concurrently in the operative portion of the judgment. Whether the sentence should run concurrently or consecutively is left to the discretion of the court. However, as in all judicial discretion, it should be exercised judiciously and not whimsically. One must not blindly order the sentence to run concurrently as though there was no alternative. In determining the appropriate punishments/sentences, within the range of various punishments, the nature of the offence, the gender of the accused, the age, the motive and other surrounding circumstances, the degree of deliberation shown by the accused, the provocation he received, should all be considered, judiciously.

Note: Where several accused are involved in the trial, the judgment must analyze the individual case of each accused separately, and findings must be recorded as regards the act(s) proved to have been committed by each accused.

The judgment must disclose that the evidence has been analyzed with care and thoroughness. Reasons must be recorded as to why you believe or disbelieve a particular witness. The judgment must contain intelligent and intelligible discussion on the pros and cons of the case with a summary of the evidence of the material witnesses. Do not ever attempt to make out a case against the accused stronger than it is justified by the evidence, merely to ensure that your judgment is upheld in appeal.

It is often noticed in several judgments that a summary of the evidence or of the oral testimony recorded at trial is passed on as a discussion or analysis of the evidence. This is a wrong, inelegant, and wholly avoidable method of drafting a judgment. You must not record a mere summary of evidence or furnish a catalogue of the documents filed in evidence. This would amount to mere collection in the judgment of the statement of witnesses who give evidence at trial or of the documents marked, if any. A proper judgment must disclose a careful and critical analysis and appraisal of the evidence. Mere copious or elaborate quotations from the evidence of the witnesses without complete and detailed comments on the testimony are useless and illustrate demonstrable non-application of mind.

While considering the evidence as a whole to arrive at certain conclusions on the basis of such evidence, there are three aspects which are to be borne in mind: (i) the volume of evidence; (ii) the weight of the evidence; and (iii) the probability of the evidence. It is the cumulative effect of all these three aspects of evidence that eventually determines a certain question of fact, though the extent to which each one of these aspects may influence a decision may be materially different.

In assessing the weight of the evidence, it is not the weight of the witness or the volume of the testimony that is important. The mere quantity of the evidence is irrelevant. The judge must not be overwhelmed by the number of witnesses or what is called the quantity of evidence. It is the judge's task to go behind the volume and discover the quality or what is called the weight of the evidence. A useful illustration of this aspect is where there is an expert medical evidence of the doctor who attended to the deceased and was with him around the time of his demise. This sole witness, whose testimony is otherwise unimpeachable, deposes that the death was caused on account of an injury to the head. As against this testimony, a dozen lay persons testify that the death occurred on account of pneumonia. In the absence of any supervening or special circumstances appearing from the evidence, clearly, the evidence of the doctor, though the sole witness, must outweigh the testimony of the dozen lay witnesses, as to the cause of the death. This is a simple illustration of quality prevailing over quantity. You must remember that Section 134 of the Evidence Act does not insist on any particular number of witnesses. For a useful discussion of this aspect see Vadivelu Thevar vs State of Madras [AIR 1957, S.0 614).

The entire evidence in criminal cases may usefully be considered under four different heads; (i) direct; (ii) circumstantial; (iii) technical; and (iv) formal. In discussing the evidence relating to any particular instance you may deal first with the direct evidence and then refer to circumstantial evidence, which goes to strengthen the conclusions drawn from the direct evidence or to indicate the weaknesses thereof. Technical or expert evidence in the shape of an injury report, statement of the doctor who examined the injured or conducted a post-mortem examination of the corpse, report of the chemical examiner or the serologist, report or the deposition of a handwriting or thumb impression expert, etc., form one class of evidence and should be discussed at the proper place in the judgment and the effect indicated. The formal investigation such as of the I.O., generally comes last and should be indicated in brief, to the extent necessary for filling up the gap in the story taken as a whole. It should never be allowed to occupy more than the minimum place in the judgment.

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Author is a former Judge of the High Court for the (composite) State of Andhra Pradesh, President of CESTAT, and Director of the National Judicial Academy, Bhopal.