CIVIL

How to write Judgment in criminal cases – Instructions for judges

Introduction

In the State of Uttar Pradesh vs. Mohammad Naim, [AIR 1964 SC 703] it has also been held that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve. In Gurmit Singh vs. State of Punjab, [(1974) 2 SCC 260] the following observations were made:-

“10. A judgment is an affirmation of a relation between a particular predicate and a particular subject. So, in law, it is the affirmation by the law of the legal consequences attending a proved or admitted state of facts. It is always a declaration that a liability, recognised as within the jural sphere, does or does not exist. A judgment, as the culmination of the action, declares the existence of the right, recognises the commission of the injury, or negatives the allegation of one or the other (Black on Judgments, Vol.I, end ed. Pp 1-2)

11. A judgment of a court is an affirmation, by the authorised societal agent of the State, speaking by warrant of law and in the name of the State, of the legal consequences attending a proved or admitted state of facts. Its declaratory, determinative and adjudicatory function is its distinctive characteristic. Its recording gives an official certification to a pre-existing relation or establishes a new one on pre-existing grounds [Borchard, “Declaratory judgments” 2nd ed. Pp. 8-10]”

Supreme Court has laid down guidelines for the Courts, to be followed while writing judgments, in Joint Commissioner of Income Tax Surat Vs. Saheli Leasing & Industries Ltd., [(2010) 6 SCC 384]which are as under:

“4. This Court, time and again, reminded the courts performing judicial functions, the manner in which judgments / orders are to be written but, it is, indeed, unfortunate that those guidelines issued from time to time are not being adhered to.

5. No doubt, it is true that brevity is an art but brevity without clarity likely to enter into the realm of absurdity, which is impermissible. This is what has been reflected in the impugned order which we would reproduce hereinafter.

6. We, therefore, before proceeding to decide the matter on merits, once again would like to reiterate few guidelines for the Courts, while writing orders and judgments to follow the same.

7. These guidelines are only illustrative in nature, not exhaustive and can further be elaborated looking to the need and requirement of a given case:-

(a) It should always be kept in mind that nothing should be written in the judgment/order, which may not be germane to the facts of the case; It should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment / order.

(b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion.

(c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader.

(d) Appropriate care should be taken not to load it with all legal knowledge on the subject as citation of too many judgments creates more confusion rather than clarity. The foremost requirement is that leading judgments should be mentioned and the evolution that has taken place ever since the same were pronounced and thereafter, latest judgment, in which all previous judgments have been considered, should be mentioned. While writing judgment, psychology of the reader has also to be borne in mind, for the perception on that score is imperative.

(e) Language should not be rhetoric and should not reflect a contrived effort on the part of the author.

(f) After arguments are concluded, an endeavour should be made to pronounce the judgment at the earliest and in any case not beyond a period of three months. Keeping it pending for long time, sends a wrong signal to the litigants and the society.

(g) It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society.

8. Aforesaid are some of the guidelines which are required to be kept in mind while writing judgments. In fact, we are only reiterating what has already been said in several judgments of this Court.”

Judgment, Its Contents, Composition And Quality

Of the several functions which the Court is called upon to discharge, the most onerous and important one is the writing of judgment. Its significance  cannot be overemphasised when it is manifest the whole edifice of public confidence in Courts is built on the quality of judgment that the Courts produce. The Judgment should, therefore, be a product of clear sustained thinking, sound analysis of facts, application of correct legal principles and condensed commonsense and ripe experience of men and matters. It should represent the best that can be drawn from human thought and mind on the subject.

The judgment in criminal cases concerned, as it is, with life, liberty, honour and property of a citizen, must necessarily be clear and systematic. Sections 353 & 354 of Criminal Procedure Code, 1973, provides inter alia for the contents of judgments.

A judgment should contain:

(1) A concise statement of facts.
(2) The point or points for determination,
(3) The decision thereon.
(4) The reasoning for such decision.
(5) If there is conviction, it should specify the offence of which and the section of law under which the accused is convicted and the punishment is inflicted.
(6) If the conviction is under the Indian Penal Code and it is doubtful under which of two sections or two parts of the same section the offence falls, it should be distinctly specified and the judgment should be passed in the alternative.


Section 2(9) of the CPC defines a “judgment” to mean the statement given by the Judge of the grounds for a decree or order. A mere order deciding the matter in dispute, not supported by reasons, is no judgment at all. It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy, which was tried to be settled by the Court and in what manner.

For civil Cases see Order 20 Rule 4(2)-Judgments of other Courts contain a (1) concise statement of the case,(2) the points for determination, (3)the decision thereon, and (4)the reasons for such decision. Again in suits in which issue, have been framed, the Court shall state its finding or decision, with the reasons therefore, upon separate issue, unless the finding upon any one or more of the issue is sufficient for the suit.(the same principles have to be applied in the criminal cases too)


These are the essentials which the judgments should contain. It is so not only in relation to the judgments of the trial Court but also of the appellate Court. Indeed, the judgments of the appellate Court must be independent. It should stand by itself without being supplementary to the judgments of the trial Court. It must contain a careful appraisal of the whole evidence on record and it must show that the appellate Court has applied its independent mind to all the circumstances from all aspects. It must be clear that every item of evidence, on which the findings of the trial Court are based has been carefully scrutinised and weighed.

“It is true that the learned Judge has made copious quotations verbatim from the evidence of the witnesses and his comment upon the evidence is not as full and detailed as might be expected but this practice of writing judgments in this way seems fairly general in Hyderabad though we cannot help saying that it is not to be commended. It is the obvious duty of the Court to give a summary of the evidence of material witnesses and to appraise the evidence with a view to arriving at the conclusion whether the testimony of the witness should-be believed”. [Aftab Ahmed Khan vs. State of Hyderabad (A.I.R. 1954 S.C.436)].

It is not sufficient if one is conversant with what the requisite contents of a judgment are. It is also necessary that he should be able to write good judgment, for after all, it is the quality of the judgment that is of paramount importance. Its composition is of no less significance.

Writing of judgments is an art which has to be cultivated and developed by regular study of judgments’ of eminent English and Indian Judges. Study helps a good deal. But ultimately the judgment depends upon individual talent, grasp of facts, command of legal principles, clarity of thought, power of expression and natural proclivities of elaboration or compensation. It is not possible to give precise or exact instructions of universal application as to the manner in which the judgment should be composed because the facts of each case coming up for discussion are never as a rule stereotyped. They may differ widely from each other. All that need be stressed upon is that the judgment should not be prolix or a mere mechanical reproduction of facts and evidence.

It should contain a concise and precise statement of facts chronologically arranged bringing to the fore points for determination. The narrative must be precise and clear. The marshalling of facts should be thorough. Repetition must be avoided so far as it is possible. All that happened at the time of the occurrence and the incidents which took place in so far as they are material, should be narrated in their natural sequence. While brevity is a great virtue, clarity of thought and expression should be the watchword. If the sequence is duly observed and facts are logically arranged, the narrative will be precise, clear and impressive.

It will be profitable if the following sequence in writing judgments so far as it is possible, is followed :

1. The Statement of facts.
2. The occurrence and the gist of the offence with some details.
3. Motive Forming the background of the offence.
4. First Information Report time of its despatch and receipt.
5. Post mortem or wound certificate, if any.
6. Anything worthy to mention with regard to investigation.
7. The plea of the accused and the defence that is set up.
8. The points for determination.
9. Discussion of the merits of the prosecution evidence.
10. Discussion of the defence evidence, if necessary.
11. Conclusion and Sentence to be passed.

After narrating the facts as gathered from the prosecution case and stating the plea of the accused, the points which require judicial determination should be clearly stated. The weight and value of evidence in support of the prosecution should then be considered and if it makes out a case, the defence evidence should be discussed. It should be judged whether the defence evidence does or does not rebut the prosecution evidence. All this involves appreciation of evidence both oral and documentary.

The function of appreciation of evidence is not an easy task. Its technique requires a separate chapter for due consideration. Therefore, it is dealt with in another chapter. So also the question of conviction, punishment and sentence.

It is sufficient here if it be stated that reproduction of the evidence of each witness in the case in the judgment is of no use. The evidence should be discussed and evaluated. Corroboration and contradiction of material facts must necessarily be commented and reasons for believing or disbelieving the evidence must be stated and the findings on the points requiring decision must be recorded. It is of vital importance that the judgment must be temperate and sober. Commenting on the conduct of the parties should not go beyond what is really necessary. Damaging remarks against a witness should not be made without trustworthy proof of the record. Remarks prejudicial to the character of a person who is neither a party nor witness in the case should be wholly avoided. While coming to a decision various aspects of the matter as may present themselves should be fully discussed.

Just as it is the duty of a Criminal Court to get to the bottom of a case and see that every scrap of relevant evidence is brought before it so that justice be done, so also it is its duty to test the entire material and the various theories set up and points raised fully and satisfactorily and reach its conclusion. Each point should be dealt with fully before the other is taken up. Findings on the points must be precise and clear. The question of sentence should then be considered and appropriate sentence should be awarded.

Thus, the judgment must be comprehensive enough to cover all the aspects in the manner described above. Sometimes the Magistrates, before considering whether the prosecution has made out its case, proceed indiscreetly to comment on the witnesses for the defence and discuss the incredibility of the defence witnesses to declare the case of the accused as untrue. On that basis they accept the case set up by the prosecution as true. This approach is wholly wrong and is fraught with grave consequences. The legal presumption about the accused is that he is innocent till the guilt is brought home to him by positive and credible evidence. The onus of proving all that is necessary for the establishment of guilt is wholly on the prosecution.

If the prosecution evidence is doubtful or unsatisfactory, it cannot gain any strength from the weakness in the defence case as it should stand or fall on its own strength. If the guilt is not proved beyond reasonable doubt on the basis of the prosecution evidence, the accused is entitled to benefit of doubt and consequent acquittal. The defence evidence has to be discussed only if the prosecution has discharged the onus of proving the guilt and not otherwise. Of course, if the accused pleads the right of private defence or any other general or special exceptions under the Penal Law and the facts alleged by the prosecution are not disputed, it may not be necessary to discuss at length the prosecution evidence first. It will be sufficient to set out the main features of the prosecution case and take up the evidence for the defence. It should be noted that the standard of proof as required of the accused is not the same as that of the prosecution. He need not prove his defence beyond reasonable doubt. It is sufficient if there is preponderance of probability in his favour. Further, even through he might not have established his case quite satisfactorily, should the Court on a reading of the evidence on record as a whole i.e., of the prosecution together with the defence evidence, has reason to believe that there may be truth in what the accused says, the accused is entitled to acquittal.

The judgment, therefore in cases like these must contain full discussion from this point of view.

In connection with the judgment it must always be remembered that what is of essence is not the mere Form or composition of judgment but its quality. A judgment of quality postulates indeed sound knowledge of law and of rules of evidence. But that alone may not be sufficient. What is of vital importance and an essential requirement in judgments in criminal proceedings is the natural and acquired shrewdness and experience by which a Judge has to Form his opinion as to whether a witness is or is not lying. The rules of evidence may provide tests as to the quality of materials on which the judgment may proceed without any obvious objection. But they do not profess to enable the Judge to know whether a witness is telling the truth and what inference should be drawn from particular facts. That must depend on the natural sagacity, logical power and practical experience of the Presiding Officer and this, however, has to be developed to its full measure within one’s capacity to ensure satisfactory results. As this aspect is closely allied with the question of appreciation of evidence, it is appropriate that it may be dealt with in the relevant chapter.

Something, however, must need be said also as to the necessity of having a good command of law and of legal principles and requisite ability of correct application thereof to the facts of the case as that contributes a good deal to the quality of judgment. A thorough knowledge of substantive and procedural law is imperative for a good judgment Its right application to the facts is no less important. Obviously enough, unless the Presiding Officer is sure of law before he proceeds to apply it to the facts, he cannot hope to reach correct results. An element of slight approximation in facts will not do so much harm as uncertainty in law. The knowledge of law has to be exactly right The exactitude demanded is one of mathematical precision. Any flaw in the understanding of law will upset the whole judgment It may be remembered that a Magistrate combines in himself the dual capacity of a Judge of facts and of law. He has, therefore, to be careful in relation to both the aspects.

As regards the facts, he has to be alert from the outset when he starts recording evidence and has to Form his own impressions as the case progresses and finalise his opinion at the end. At every stage he has to apply his commonsense and knowledge of men and matters to judge the questions of facts involved.

He has also to bear well in mind the substantive and procedural laws and rules of evidence while dealing with cases before him. He has, of course, to be fully conversant with statute law. So also he has to be familiar with the case law on the subject But the basic legal principles have to be necessarily assimilated by him. Or else it will not be possible for him to proceed further and discharge his functions efficiently. Besides, time and again, he has to refer to Sections of the law and study them very carefully. Commentaries will be helpful but he should know how to use them. Whether at the time of framing charge or awarding punishment he should keep the relevant Sections always in view to avoid possible mistake and should in no circumstances exclusively rely on memory. While referring to the relevant rulings he must not be merely guided by headlines or headnotes. He should go through the entire rulings carefully and have an analysis of the same so that he may be sure of the true scope and correct application thereof.

There may be a few other precautions which the Magistrate should take to impart fullness and soundness to his judgment. It is not necessary to dilate on this aspect any further as any amount of instruction given cannot be exhaustive and much depends on the natural capabilities of the Presiding Officer.

I may, however, invite attention to the following general principles which will be of immense help to the Courts while dealing with the guilt or innocence of the accused:

(1) The onus of proving everything essential for the establishment of the charge against the accused lies on the prosecution.

(2) The decision of the case must rest on legal grounds based on legal testimony or evidence, both oral and documentary; but never on speculative theory or upon suppositions or mere suspicions created by the circumstances in the evidence.

(3) The evidence to justify conviction should be such as to exclude to moral certainty every reasonable doubt as to the guilt of the accused. In case of doubt it is always safer to acquit than to condemn. Indeed the accused, in law, is always entitled to benefit of doubt.

(4) While coming to the conclusion as to the guilt or innocence of the accused, the Court should take the following circumstances into consideration;

(a) The circumstances in which the offence is said to have been committed.

(b) The motive for the offence or false accusation.

(c) The consistency of the story told by the prosecution, its probability or plausibility.

(d) The nature of evidence on behalf of the prosecution.

(e) Its credibility.

(f) The character, position and independence of the witnesses.

(g) How far their testimony is consistent with itself and conforms to experience and accords with collateral circumstances.

(h) Exaggeration and discrepancies in their statement; their cause and effect together with the explanation as offered by the witnesses or the counsel of the parties.

(i) The reasons for accepting or rejecting any portion of the statements ; its effect on the testimony.

(j) The value of confession, if any.

(k) The examination of the accused explaining the facts in the evidence against him.

(l) The evidence adduced in support of the defence theory.

As regards the recording of findings it is necessary that in the judgments findings on all charges must be clearly given. They should be recorded in distinct and definite terms so as to afford no room for doubt as to what they are and no scope for dispute that on the findings, no offence has been committed. Where there are several accused, the case of each accused should be dealt with in sufficient detail and the decision with regard to each with reasons therefor should be given. The names of the accused should be set out in the judgment In cases of conviction, as already stated, the judgment must specify the offence of which and the sections of the law under which the accused is convicted and also the punishment inflicted under each. In case the previous convictions are relevant and have been proved, they should be duly stated with the details of dates, and extent of punishment The reasons for the particular punishment also must be stated. If the conviction is under the Indian Penal Code and it is doubtful under which of the two sections or under which of two parts of the same section of the Code the offence falls, the Court must distinctly express the same, and pass judgment in the alternative. If the judgment is one of acquittal, the judgment shall state the offence of which the accused is acquitted.

These in short are the various features which require mention in connection with the judgments in criminal cases. It must be remembered that the purpose of instructions is merely to provide some guidelines. It must all depend upon the originality and accomplishments of the Presiding Officer to make his judgments not only thorough and interesting but also highly satisfactory and convincing.


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