Madras HC Acquits Two Attempted-Murder Convicts After Appeal Court Found Charge Unproved But Dismissed Their Appeal For Default

The petitioners, A2 and A3, and A1 were convicted by the Additional Assistant Sessions Judge, Tirunelveli, under Section 307 IPC and sentenced to five years’ rigorous imprisonment and a fine

They appealed in C.A. No. 15/2025.

The appellate court found that the prosecution had not proved the charge beyond reasonable doubt and acquitted A1, but dismissed the appeal against A2 and A3 for non-prosecution because they were absent and unrepresented

A2 and A3 challenged that dismissal in revision under Section 438 BNSS

Sections 385 and 386 CrPC require an appellate court, where an appeal is not summarily dismissed, to call for and consider the record and dispose of the appeal on its merits; they do not permit dismissal for non-prosecution simpliciter.

In Bani Singh v. State of U.P., (1996) 4 SCC 720, the Supreme Court held that criminal appeals must be decided on merits after scrutiny of the record

Madan Lal Kapoor v. Rajiv Thapar, (2007) 3 SCC (Cri) 437, reaffirmed that a criminal matter cannot be dismissed for default and must be decided on merits

K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721, held that an appeal cannot be dismissed for non-prosecution simpliciter, though the court need not adjourn when the appellant or counsel is absent and may decide the appeal after examining the record

The appellate court dismissed the petitioners’ appeal solely for non-prosecution, contrary to the governing rule that a criminal appeal must be considered on its merits

Moreover, its own judgment found that the prosecution had not proved the Section 307 IPC charge beyond reasonable doubt and that none of the three accused had committed the offence, yet it acquitted A1 while dismissing A2 and A3’s appeal for non-prosecution

The High Court held that this inconsistent disposition was erroneous and perverse and granted the petitioners relief on the basis of those findings

It also directed that they be set at liberty, ordered refund of any fine paid, and cancelled their bail bonds