Appeal Against Conviction in the Delhi High Court

What an appeal against conviction actually does

A first appeal against conviction is a full rehearing of the case on the record. The Delhi High Court reads the evidence of every witness, the documents exhibited at trial, the statement of the accused and the trial judge's reasoning, and decides for itself whether the prosecution proved guilt beyond reasonable doubt. It is not limited to errors of law. A conviction can be set aside because the court reads the evidence differently from the trial judge.

Under Section 427 BNSS (old Section 386 CrPC), the High Court in an appeal from conviction can reverse the finding and acquit, order a retrial, alter the finding to a lesser offence, or keep the conviction and reduce the sentence. It can enhance the sentence only after giving the accused notice and a chance to argue against it. Most appeals end in one of three ways: acquittal, conviction upheld, or conviction upheld with a reduced sentence, often to the period already undergone.

This right is given by statute, and it matters because it is usually the last full look at the facts. After the High Court, the Supreme Court hears criminal cases mainly by special leave and does not ordinarily reassess evidence. The quality of the High Court appeal, the grounds taken and the way the record is presented, often decides the case.

Which court hears your appeal

Section 415 BNSS sets out the route. A person convicted at a trial held by a Sessions Judge or Additional Sessions Judge appeals to the High Court. So does a person convicted by any other court where a sentence of more than seven years has been passed on him or a co-accused at the same trial. In Delhi, that means convictions from the Sessions Courts at Tis Hazari, Patiala House, Saket, Karkardooma, Rohini, Dwarka and Rouse Avenue come to the Delhi High Court at Sher Shah Road.

A conviction by a Magistrate, where the sentence is seven years or less, is appealed to the Sessions Court, not the High Court. Against the Sessions Court's decision in that appeal, the remedy in the High Court is a revision, explained on our page on criminal revision in the Delhi High Court. Special courts under the POCSO Act, the NDPS Act and the Prevention of Corruption Act function as Courts of Session for this purpose, so their convictions also come to the High Court in appeal.

Some laws have their own appeal provisions. Appeals from special courts under the NIA Act lie to a Division Bench within 90 days (see UAPA and NIA appeals), and the SC/ST (Prevention of Atrocities) Act has its own appeal route under Section 14A. Within the Delhi High Court, criminal appeals are listed according to the roster; appeals in cases of life imprisonment are generally heard by a Division Bench, and other appeals by a single judge. A death sentence cannot be carried out unless the High Court confirms it, so those cases come up on a reference as well as the appeal.

The provisions that govern a criminal appeal

The 60-day deadline and late appeals

Count sixty days from the date the sentence was pronounced, not the date of conviction if the two were on different days. Apply for the certified copy at once. The accused is entitled to a free copy of the judgment under Section 404 BNSS (old Section 363 CrPC), but families usually apply for a certified copy as well, and the days spent waiting for it are added to the sixty days. Our guide on getting certified copies explains the process for court records.

If the deadline has passed, the appeal can still be filed with an application to condone delay under Section 5 of the Limitation Act, explaining each period of delay. Courts are generally more lenient in criminal appeals where the appellant is in jail, poor, or depended on legal aid, because liberty is at stake. Delay caused by a family's lack of money, by a lawyer's inaction, or by the convict's inability to give instructions from jail is often explained successfully, but the explanation must be honest and supported by documents.

Do not let the deadline slip because a family member is still trying to decide which lawyer to engage. Even an appeal filed with basic grounds can be amended later to add grounds once the full record is studied. A missed deadline adds a hurdle that need not exist.

How a criminal appeal moves through the Delhi High Court

1. Collect the judgment and the trial record

   Get the certified copy of the judgment and order on sentence. Then collect the trial court record: chargesheet, depositions of witnesses, exhibited documents, the statement of the accused under Section 351 BNSS (old Section 313 CrPC), and the order sheets. The appeal is only as good as the counsel's reading of this record.

2. Read the evidence against the judgment

   Counsel compares what each witness actually said with how the judgment describes it. Gaps between the two, overlooked contradictions, and evidence the judgment never discussed are the raw material of the grounds of appeal.

3. Draft the appeal and the suspension application

   The memorandum of appeal sets out the facts, the grounds and the relief. It is filed along with an application under Section 430 BNSS for suspension of sentence and bail, and, if late, an application for condonation of delay. A convict in custody can sign the vakalatnama in jail, or file through the jail superintendent.

4. Admission hearing

   At the first listing the court decides whether to admit the appeal. Most first appeals against conviction in serious cases are admitted. The court issues notice on the suspension application, calls for the nominal roll from the jail showing the custody period and conduct, and orders the trial court record to be sent.

5. Decision on suspension of sentence

   After the State's reply and the nominal roll arrive, the court hears the bail application. If the sentence is suspended, the convict is released on furnishing bonds before the trial court or as the order directs, often with conditions on travel and appearance.

6. Preparation of paper books and listing

   The record is digitised and paper books are prepared. The appeal then waits for regular listing. Appellants still in custody can apply for an early hearing; appellants on bail usually wait longer.

7. Final hearing and judgment

   Counsel takes the court through the evidence witness by witness and argues the grounds. The State replies. Judgment may be pronounced the same day or reserved. If the appeal is dismissed and the appellant was on bail, the court usually directs surrender to serve the remaining sentence.

Getting out of jail while the appeal is pending

For most families, release on bail during the appeal is the first priority, because a final hearing can be years away. The law treats a fixed-term sentence and a life sentence differently. Where the sentence is for a fixed term, the Supreme Court said in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) that the appellate court should ordinarily suspend it, unless there are exceptional reasons, since the appeal may otherwise become pointless by the time it is heard.

Where the sentence is life imprisonment, suspension is harder. The court looks at whether there is something clearly arguable in the appeal, the time already spent in custody, the likely time before the appeal is heard, and the conduct in jail. Courts have long accepted, since Kashmira Singh v. State of Punjab (1977), that keeping a person in jail for years while his appeal waits, only to acquit him later, is a serious injustice. The nominal roll showing custody and conduct is often the most important document in such applications.

When Advocate B.K. Singh prepares a suspension application for a convict serving life, he does not repeat the whole appeal. He picks the two or three points in the evidence that are most clearly arguable, places them on a single page with references to the depositions, and pairs them with the custody period and the jail conduct report. Judges hearing a crowded bail list respond to a short, verifiable case far better than to a long one.

If the sentence is three years or less and the convict was on bail during trial, the trial court can itself grant bail for a period so that the appeal can be filed. After that, bail must be continued by the High Court. Detailed guidance is on our page on suspension of sentence and bail during appeal.

Grounds that are often argued in Delhi appeals

Every appeal turns on its own record, but the same kinds of weakness come up repeatedly. These are the points counsel looks for first.

• Contradictions in the prosecution witnesses. Not every minor difference matters, but contradictions on the core facts, such as who struck the blow, the time of the incident or the presence of the witness, can create reasonable doubt.
• Delay in the FIR without explanation. A long, unexplained gap between the incident and the FIR leaves room for embellishment and consultation, and courts examine it closely.
• Doubtful recovery. Recoveries made on the disclosure of the accused, without independent witnesses or with witnesses who turn hostile, are frequently challenged. The time and place of recovery, sealing and deposit in the malkhana must all line up.
• Broken chain of custody. Where samples, weapons or drugs move between the spot, the malkhana and the forensic laboratory without proper records, the link between the accused and the article is weakened.
• Electronic evidence without the required certificate. CCTV footage, call records and phone data need a certificate under Section 63 of the Bharatiya Sakshya Adhiniyam (old Section 65B of the Evidence Act). The Supreme Court in Arjun Panditrao Khotkar (2020) held that the certificate is mandatory for secondary electronic evidence.
• Identification problems. Identification of a stranger for the first time in court, without a test identification parade, or after the accused was shown to the witness at the police station, carries little weight.
• Incriminating circumstances not put to the accused. Every circumstance used against the accused must be put to him in his statement under Section 351 BNSS. If it was not, it generally cannot be relied upon.
• Defence evidence ignored. A judgment that does not discuss defence witnesses or documents at all is open to challenge on that ground alone.
• Parity with co-accused. Where co-accused facing the same evidence were acquitted, or have had their sentences reduced in an earlier appeal, the court is asked to explain why the appellant should be treated differently. Parity is a strong argument both on bail and at final hearing, though it does not apply where the roles were clearly different.

Appealing only against the sentence

Some convicts accept that the evidence is strong but believe the sentence is out of proportion. An appeal can be confined to sentence. The court looks at the age of the accused, first offence or not, family responsibilities, health, conduct in jail, the role played compared to co-accused, compensation paid to the victim, and the time since the incident.

For offences not punishable with death or life imprisonment, the court can release a first offender on probation of good conduct under Section 401 BNSS (old Section 360 CrPC) or under the Probation of Offenders Act 1958, instead of sending him back to jail. In many older cases where the appellant has already spent a substantial period in custody, the court maintains the conviction and reduces the sentence to the period already undergone. Where a minimum sentence is fixed by statute, however, the court cannot go below it.

Time already spent in custody during investigation and trial is set off against the sentence (old Section 428 CrPC). Make sure the jail's nominal roll reflects every period of custody correctly; mistakes are common, and they affect both bail and release dates.

Time and cost for a criminal appeal

These ranges are based on general experience in the Delhi High Court. They vary with the bench and the volume of pending appeals, and no date can be promised.

Documents needed for the appeal

What happens if you cannot afford a lawyer

A convict who cannot afford counsel is entitled to free legal aid. The Delhi High Court Legal Services Committee assigns panel lawyers to appellants in custody, and jail legal aid clinics help prisoners file appeals through the jail superintendent. Our guide on free legal aid in the Delhi High Court explains eligibility.

Families who engage a private lawyer later can substitute counsel in a pending legal aid appeal by filing a fresh vakalatnama. The legal aid lawyer's file, including any paper book, should be collected. Changing counsel is common and does not affect the appeal itself.

If you are the victim or the State

A victim has a statutory right of appeal under Section 413 BNSS (old proviso to Section 372 CrPC) against an acquittal, a conviction for a lesser offence, or inadequate compensation. The State can appeal against acquittal under Section 419 and against an inadequate sentence under Section 418 (old Section 377). Our page on appeals against acquittal covers those routes, and the guide on a victim's rights in a criminal appeal explains how a victim can take part in the accused's appeal.

When the accused's appeal is pending, the victim does not automatically get notice, but the court can hear the victim, particularly on suspension of sentence in serious cases such as sexual offences. If the victim wants the sentence enhanced, a separate appeal or revision is needed, and the accused must get notice before any enhancement.

Mistakes families make after a conviction

• Waiting for the 'right time' to file. The sixty days run regardless. Filing early also brings the bail application forward.
• Filing without the trial record. An appeal drafted from the judgment alone repeats the trial judge's summary. The grounds that win are usually in the depositions.
• Overloading the appeal with weak grounds. Thirty grounds of which twenty-five are formal can bury the five that matter. Judges appreciate an appeal that goes straight to the point.
• Ignoring sentence arguments. Even in a strong appeal on facts, an alternative plea on sentence, with supporting documents, should be ready.
• Not checking the nominal roll. Wrong custody periods delay bail and later release.
• Breaking bail conditions after release. Missing dates or travelling without permission can lead to cancellation of the suspension and a return to jail.

After the High Court decides

If the High Court dismisses the appeal, the next step is a special leave petition in the Supreme Court under Article 136, filed within 90 days through an Advocate-on-Record. The Supreme Court does not rehear evidence as a matter of course, so the petition must show a clear error of law or a serious failure to consider evidence. If the appellant was on bail, the High Court usually directs surrender, and the Supreme Court may grant exemption from surrendering while it hears the petition. See our page on Supreme Court SLP from a Delhi High Court judgment.

A criminal court cannot review its own final judgment except to correct a clerical or arithmetical error (Section 403 BNSS, old Section 362 CrPC). So an unhappy result in the High Court cannot be reopened there by a review petition in the way civil judgments sometimes can.

If the conviction stands and the convict is serving the sentence, parole and furlough become relevant for family needs, explained on our page on parole and furlough for Delhi prisoners.

What to do this week

Apply for the certified copy of the judgment and the order on sentence, and note the date of sentence on paper so the sixty days are clear to everyone in the family. Collect whatever trial papers the trial lawyer has: the chargesheet, depositions and order sheets. Ask the jail for the nominal roll. Gather medical records if health is an issue.

When Advocate B.K. Singh takes up a criminal appeal, the first thing he does is read the cross-examination of the main prosecution witnesses, before the judgment. The judgment tells you what the trial court believed; the cross-examination tells you what the witnesses actually conceded. Many appeals are won on pages the trial judgment never mentioned.

For advice on a conviction, the deadline in your case or updates on appeal practice in the Delhi High Court, contact Advocate B.K. Singh.