Vetting an Appeal Draft Against an Acquittal

1. 'Having been acquitted ... the appeal is filed by the State' - logical and grammatical. The participle must attach to the person acquitted, which is the accused, not the appeal and not the State. As drafted, it says the appeal was acquitted. This is not stylistic: the opening sentence of a memorandum must identify the appellant and the judgment appealed against.

2. 'the applicant, who was suffering from typhoid and his counsel was on leave' - logical, legally damaging. The relative pronoun governs only the illness, so the counsel's leave becomes a stray coordinate clause. The sentence ends up pleading only the appellant's illness as sufficient cause, which is a weaker case than the facts support, since the trial court record itself arrived late.

3. 'neither inordinate nor not explained' - grammatical, but the most dangerous. The double negative technically asserts that the delay is either inordinate or unexplained. It is an unintended admission in the appellant's own pleading.

4. 'the judgement which is contrary to the evidence on record and the material witnesses were not examined' - legal-substantive. Two distinct grievances are fused by 'and', the antecedent of 'which' is unclear, and no specific ground is stated. Grounds must be concise, numbered and under distinct heads, with no argument or narrative.

5. 'true to his knowledge and belief' - legal-substantive. Verification must separate what is known from what is believed. Fusing them makes the affidavit vulnerable.

Not a defect. 'may kindly be set aside' is conventional and correct in a prayer; the real defect is that the prayer identifies neither the finding nor any consequential relief.

The State prefers this appeal against the judgement dated 12 April passed by the learned trial court acquitting the accused.

Grounds

1. The finding of acquittal is contrary to the evidence of PW-1, PW-2 and PW-4 and to the medical evidence of PW-7.
2. The learned trial court erred in discarding the testimony of PW-4 without recording any reason for doing so.
3. The trial court erred in holding that the prosecution had failed to prove the recovery, although the seizure memo was duly proved by PW-5 and was not challenged in cross-examination.

Condonation. The appeal fell due on 2 June and is presented on 19 July, a delay of 47 days. The delay occurred because the trial court record was received in this office only on 30 June and because the certifying officer was on leave from 3 to 18 June. The delay is not inordinate, is bona fide and is explained in the accompanying application under Section 5 of the Limitation Act, 1963.

Prayer. Set aside the judgement dated 12 April and either convict the accused under Section 318(4) BNS or remit the case for retrial on the ground set out in paragraph 2.

Verification. Paragraphs 1 to 3 are true to my knowledge; paragraphs 4 and 5 are true to my information and belief. No part of it is false and nothing material has been concealed.

Note for the file: the sentence beginning 'Having been acquitted' is deleted because the participle attaches to the wrong noun; the double negative is deleted because it reverses the meaning; and the single fused sentence about evidence and witnesses is split into numbered grounds.

Framework. Section 5 of the Limitation Act, 1963 permits an appeal to be admitted after the prescribed period if the appellant satisfies the court that there was sufficient cause for not preferring it in time. For a State appellant the court is liberal, because the loss falls on the public, but indulgence stops where negligence or mala fides appears: the explanation must be plausible, the delay must not be inordinate, and each block of delay must be accounted for. Esha Bhattacharjee v. Managing Committee, Raghunathpur Nafar Academy (2013) 12 SCC 649 collects these principles: the State cannot be treated on the same footing as a private litigant for laxity, but the court may decide the appeal on merits where the record permits rather than shut it out on limitation.

What the application must show. The date the judgment was delivered and the date the certified copy was applied for and received, the period during which the trial court record was awaited, the dates of the certifying officer's leave, and a specific reason for each block. A bald reference to 'administrative reasons' or 'office delay' invites dismissal.

Affidavit. The Assistant Prosecution Officer has no personal knowledge of the investigation and cannot swear to the facts of the case. The affidavit should be sworn by the investigating officer or by the officer who has dealt with the file, and should follow the verification discipline of Order XIX CPC, separating what is true to knowledge from what is true to belief. The notary's attestation is ministerial and adds nothing to the content; a defective verification is curable, a false one is not.