SECTION 386 CrPC - Code of Criminal Procedure - Powers of the Appellate Court
After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such order 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;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter 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, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence—
(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) alter 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;
(d) in an appeal from any other order, alter or reverse such order; (3) make any amendment or any consequential or incidental order that may be just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that 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.
Comments
(i) A wrong and erroneous order of acquittal though irrevocable in the absence of appeal by State would not operate as a bar in recording constructive liability of co-accused when concerted action with common intention stands proved; Brathi alias Sukhdev Singh v. State of Punjab, (1991) 1 Crimes 74 (SC).
(ii) In absence of an appeal preferred by State Government against their acquittal High Court could not on an appeal by respondents against their conviction alter the acquittal nor there can be a splitting up of the trial; State of West Bengal v. Laisal Haque, (1989) Cr LJ 865 (SC): AIR 1989 SC 129.
(iii) The power of an Appellate Court to review evidence in appeal against acquittal is as extensive as its powers in appeal against convictions but Appellate Court should be slow in interfering with the order of acquittal; Lalit Kumar Sharma v. Superintendent and Remembrancer of Legal Affairs, Government of West Bengal, (1989) Cr LJ 2297: AIR 1989 SC 2134.
(iv) Where evidence examined by Appellate Court unmistakenly proves that appellant was guilty under section 34 having shared a common intention with other accused who are acquitted and that acquittal was bad there is nothing to prevent the Appellate Court from expressing that view and giving the finding and determining the guilt of the appellants before it on the basis of that finding; Brathi alias Sukhdev Singh v. State of Punjab, 1991 Cr LJ 402 (SC).
(v) Where view of Sessions Judge in acquitting accused was reasonably possible then the High Court is not justified to interfere with acquittal; Padman Meher v. State of Orissa, AIR 1981 SC 447 (1980) Cr LJ 1507: (1981) SCC (Cr) 259: (1981) Cr LR (SC) 681.
(vi) Finding of trial Court that fatal blow to deceased was not given in prosecution of common object of the assembly and acquitted accused, such finding cannot be said to be clearly erroneous; Surat Lal v. State of Madhya Pradesh, AIR 1982 SC 1224: (1982) Cr LJ 1577: (1982) 1 SCC 488: (1982) SCC (Cr) 260.
(vii) When medical evidence proved that injuries sustained by victim is sufficient to cause death in ordinary course of nature, its rejection by High Court is not justified; State of Uttar Pradesh v. Suresh, AIR 1982 SC 1076: (1982) Cr LJ 850: (1981) 3 SCC 635: (1981) SCC (Cr) 774 : (1981) Cr LR (SC) 409.
(viii) The law clearly expects the Appellate Court to dispose of the appeal on merits not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record; Mahendra Singh v. State of Rajasthan, (1997) 3 Crimes 102 (Raj).
(ix) Reducing a sentence to already undergone and imposing a substantial fine would be making a mockery of our criminal justice delivery system; Shriang shankar Lokhande v. State of Maharashtra, (1997) 1 Crimes 479 (Bom).
(x) It is duty of an Appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even it can be relied upon then whether the prosecution can be said to have proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by Appellate Court in drawing inference from proved and admitted facts; Padam Singh v. State of Uttar Pradesh, AIR 2000 SC 361.
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