Can an accused argue that the Punjab and Haryana High Court must review the entire trial record before upholding a jury’s verdict in an arson case linked to a land ownership dispute?

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Suppose a dispute arises over a vacant parcel of land on the outskirts of a mid‑size town where two parties claim ownership, and the contention escalates into a violent confrontation that results in the burning of a makeshift shelter and stored agricultural produce. The complainant, a married farmer who has cultivated the land for several years, files an FIR alleging that a group of individuals, including the accused, deliberately set fire to the shelter and the stored grain, thereby causing loss of livelihood. The investigating agency registers the case under the provisions dealing with mischief by fire and proceeds to charge the accused with the relevant offences. The matter is taken up before a Sessions Court that, at the request of the prosecution, conducts a trial before a jury. After hearing the evidence, the jury returns a majority verdict of guilt, and the Sessions Judge imposes a term of rigorous imprisonment on each of the accused.

Following the conviction, the Sessions Judge, mindful of the complex question of ownership and possession that underpinned the incident, refers the matter to the Punjab and Haryana High Court under the procedural provision that allows a High Court to examine the correctness of a jury’s verdict. The High Court, however, confines its review to the narrow issue of whether the charge framed for the jury was defective, accepts the jury’s finding without a full appraisal of the evidential record, and affirms the conviction. The accused, now in custody, contends that the High Court’s limited enquiry violates the statutory mandate that requires a comprehensive assessment of the entire evidence and a balanced consideration of the Sessions Judge’s and jury’s opinions before confirming a conviction.

The legal problem, therefore, is not merely the factual dispute over land ownership but the procedural infirmity in the High Court’s handling of the reference. The accused’s ordinary factual defence—asserting a right to the property and denying the intention to commit arson—does not address the procedural defect that the High Court failed to fulfil its duty under the relevant provision of the Code of Criminal Procedure. Because the High Court’s affirmation was based on an incomplete examination, the conviction is vulnerable to being set aside on the ground of procedural impropriety, irrespective of the merits of the underlying property dispute.

To remedy this defect, the appropriate course of action is to file a revision petition before the Punjab and Haryana High Court, seeking a writ of certiorari under Article 226 of the Constitution to quash the conviction and the sentence. A revision petition is the statutory mechanism that enables a higher court to examine whether a subordinate court or tribunal has exercised its jurisdiction correctly and complied with procedural requirements. In this context, the revision petition would specifically argue that the High Court, while acting as the revising authority, did not consider the whole record as mandated, thereby breaching the procedural safeguard intended to protect the accused from an erroneous conviction.

The petition would be drafted by a lawyer in Punjab and Haryana High Court who highlights the statutory duty to give due weight to the Sessions Judge’s findings and to assess whether the evidence could reasonably support the jury’s verdict. The counsel would cite precedents establishing that a High Court must not merely address the technicality of a charge but must undertake a holistic review of the material evidence. By invoking the jurisdiction of the High Court to issue a writ of certiorari, the petition seeks to nullify the conviction on the basis that the procedural lapse renders the judgment unsustainable.

In preparing the revision, the accused’s legal team would also rely on the expertise of lawyers in Chandigarh High Court who have successfully challenged similar procedural oversights in criminal matters. These practitioners understand how to frame the argument that the High Court’s limited enquiry contravenes the principle that a conviction must rest on a record that could convince a reasonable jury after a full evidentiary assessment. Their experience ensures that the petition is articulated with precision, emphasizing that the failure to examine the contested issue of possession and the circumstances of the fire amounts to a denial of natural justice.

Once the revision petition is filed, the Punjab and Haryana High Court will be required to scrutinise the entire trial record, including the statements of witnesses, the evidence of possession, and the conduct of the accused during the incident. The court will then determine whether a reasonable body of men could have arrived at the jury’s conclusion of guilt based on the evidence. If the court finds that the evidence does not meet this threshold, it will have the authority to set aside the conviction and direct a fresh trial or acquittal, as appropriate. This outcome would rectify the procedural defect and uphold the integrity of the criminal justice process.

The strategic choice of a revision petition, rather than a direct appeal on the merits, is dictated by the procedural posture of the case. Since the conviction was affirmed by the High Court in its capacity as a revising authority, the only viable remedy is to approach the same court again, invoking its power to correct its own error. The remedy aligns with the legal principle that a High Court must not merely rubber‑stamp a jury’s verdict but must engage in a thorough evidentiary analysis before confirming a conviction.

Thus, the fictional scenario mirrors the core legal issue of the analysed judgment: a High Court’s failure to give due weight to the entire evidential record when reviewing a jury’s verdict. By filing a revision petition before the Punjab and Haryana High Court, the accused seeks to invoke the court’s jurisdiction to quash the conviction on procedural grounds, ensuring that the principles of fair trial and comprehensive judicial scrutiny are upheld.

Question: Did the Punjab and Haryana High Court, when acting as the revising authority on the jury’s verdict, have a statutory duty to scrutinise the whole trial record rather than limit its enquiry to the alleged defect in the charge framed for the jury?

Answer: The factual matrix shows that the accused were convicted after a jury returned a majority finding of guilt on the charge of mischief by fire. The Sessions Judge, uneasy about the ownership dispute that underlay the incident, referred the matter to the Punjab and Haryana High Court under the procedural provision that empowers a higher court to examine the correctness of a jury’s verdict. The statutory scheme governing such references obliges the revising court to consider the entire evidential record and to give due weight to the opinions of both the Sessions Judge and the jury before confirming a conviction. In the present case, the High Court confined its review to the narrow question of whether the charge was defective, thereby sidestepping the comprehensive assessment required by law. This procedural shortcut contravenes the legislative intent to safeguard the accused from a conviction that may not be supported by the full body of evidence. A lawyer in Punjab and Haryana High Court would argue that the High Court’s limited enquiry defeats the purpose of the revising provision, which is to ensure that a conviction rests on a record that could convince a reasonable jury after a full evidentiary appraisal. The practical implication for the accused is that the conviction, though affirmed, rests on a procedural infirmity that renders it vulnerable to being set aside. For the prosecution, the narrow focus risks an unwarranted reversal of a verdict that, on the face of the evidence, might have been sustainable. Consequently, the High Court’s failure to fulfil its statutory duty opens the door for the accused to seek a higher remedy, such as a revision petition, on the ground that the court did not perform the mandated holistic review of the trial material.

Question: What is the most appropriate legal remedy for the accused to challenge the conviction, given the procedural defect identified in the High Court’s handling of the reference?

Answer: The procedural defect—namely, the High Court’s failure to examine the whole record—creates a viable ground for the accused to approach the same High Court again, this time invoking its jurisdiction under the constitutional provision that permits a writ of certiorari. The appropriate instrument is a revision petition filed before the Punjab and Haryana High Court, seeking a writ of certiorari under Article 226 of the Constitution to quash the conviction and the sentence. This remedy is distinct from a direct appeal on the merits because the conviction was affirmed by the High Court in its capacity as a revising authority, and the procedural lapse pertains to the manner of that review. A lawyer in Chandigarh High Court would advise that the revision petition must specifically allege that the High Court did not comply with the statutory mandate to consider the entire evidential material and to balance the Sessions Judge’s and jury’s opinions. The practical consequence of filing such a petition is that the High Court will be compelled to reopen the record, scrutinise the statements of witnesses, the evidence of possession, and the conduct of the accused, and determine whether a reasonable body of men could have arrived at the jury’s verdict. If the court finds that the evidence does not meet this threshold, it has the authority to set aside the conviction, order a fresh trial, or direct an acquittal. For the prosecution, the filing of a revision petition forces a re‑evaluation of the procedural compliance, potentially overturning the conviction despite the substantive allegations. For the complainant, it means that the relief sought—punishment for the alleged arson—may be delayed or denied pending the High Court’s fresh assessment.

Question: How does the principle that the High Court must give due weight to the Sessions Judge’s opinion influence the review of a jury’s verdict in a case involving contested land ownership?

Answer: In the present dispute, the Sessions Judge highlighted that the ownership and possession of the parcel of land were unresolved, a factor that could materially affect the criminal liability for arson. The legal principle requiring the High Court to accord due weight to the Sessions Judge’s assessment ensures that the court does not merely rubber‑stamp a jury’s finding but balances it against the trial judge’s perspective on the evidential matrix. When the Sessions Judge raises a serious question—such as whether the accused had a legitimate claim to the property and thus lacked the requisite mens rea for malicious fire—the High Court must examine whether the evidence, viewed through the lens of the judge’s findings, could support a conviction. A lawyer in Punjab and Haryana High Court would stress that ignoring the Sessions Judge’s opinion undermines the statutory safeguard designed to prevent convictions based on an incomplete or skewed evidentiary appraisal. Practically, this principle obliges the revising court to revisit the contested issue of possession, evaluate the credibility of the complainant’s claim, and determine whether the accused’s actions were driven by a belief of ownership rather than an intent to cause unlawful damage. For the accused, the due‑weight requirement offers a strategic avenue to argue that the High Court’s affirmation was premature, as the judge’s concerns about ownership were not adequately considered. For the prosecution, it imposes a duty to demonstrate that, even assuming the ownership dispute, the evidence still establishes the requisite intent for the offence. Failure to give due weight could result in the High Court setting aside the conviction, thereby reinforcing the procedural balance between trial and appellate scrutiny.

Question: Considering the factual backdrop of a disputed land claim and alleged arson, what are the prospects of success for a revision petition seeking certiorari on procedural grounds?

Answer: The prospects are reasonably strong because the revision petition rests on a clear procedural infirmity rather than on the substantive merits of the arson allegation. The factual backdrop—an unresolved ownership dispute, the presence of a makeshift shelter, and the burning of stored grain—creates genuine doubt about the accused’s intent and the legality of the act. The High Court’s narrow focus on the charge, without a holistic review of the evidence, contravenes the statutory requirement that a revising authority must examine the entire record. A lawyer in Chandigarh High Court would argue that this breach is fatal to the validity of the affirmed conviction, as the High Court cannot rely solely on a technical assessment of the charge when the evidential context is contested. Moreover, the existence of a jury verdict does not immunise the conviction from being set aside if the higher court determines that the evidence could not reasonably support such a verdict. The practical implication for the accused is that the revision petition, if successful, will result in the quashing of the conviction and may lead to a fresh trial where the ownership issue can be fully explored. For the prosecution, the petition forces a re‑examination of the evidential foundation, potentially weakening their case if the ownership dispute undermines the element of malicious intent. The complainant may face delays in obtaining relief, but the procedural correctness of the criminal process will be upheld. Overall, the combination of a procedural defect and the contested factual matrix enhances the likelihood that the Punjab and Haryana High Court will grant the writ of certiorari.

Question: In what way does the unresolved dispute over land ownership affect the criminal liability for the alleged arson under the mischief‑by‑fire offence?

Answer: The unresolved ownership dispute directly bears on the mens rea component required for criminal liability in a mischief‑by‑fire offence. If the accused genuinely believed that the shelter and stored grain were his property, the requisite intention to cause unlawful damage may be absent, potentially negating the criminal element. The factual narrative indicates that the complainant, a farmer who had cultivated the land for years, claimed ownership, while the accused asserted a competing claim. The Sessions Judge’s observation that the property’s status was unsettled underscores the relevance of this issue. A lawyer in Punjab and Haryana High Court would contend that the prosecution must prove beyond reasonable doubt that the accused acted with the specific intent to destroy property belonging to another. The existence of a bona fide claim, even if later adjudicated, can raise reasonable doubt about the accused’s state of mind at the time of the fire. Practically, this means that the evidential record must be examined to ascertain whether the accused’s actions were motivated by a belief of ownership or by a malicious desire to cause loss. For the accused, this provides a factual defence that, if accepted, could lead to acquittal or reduction of the charge. For the prosecution, it imposes the burden of disproving any claim of ownership and establishing that the fire was set with malicious intent. The High Court’s failure to consider this pivotal issue in its limited review further weakens the conviction, reinforcing the need for a comprehensive re‑evaluation through a revision petition.

Question: In the present circumstances, is filing a revision petition before the Punjab and Haryana High Court the appropriate procedural step to challenge the limited enquiry of the High Court on the jury’s verdict, and why does a factual defence of ownership not suffice at this stage?

Answer: The factual matrix shows that the accused were convicted after a jury trial and that the Punjab and Haryana High Court, acting as the revising authority, confined its scrutiny to the technical question of whether the charge framed for the jury was defective. Under the procedural provision that empowers a High Court to examine the correctness of a jury’s verdict, the court is mandated to consider the whole evidential record and to give due weight to the Sessions Judge’s opinion before confirming a conviction. Because the High Court failed to fulfil this statutory duty, the procedural defect is distinct from the merits of the land‑ownership dispute. A defence that the accused owned the parcel and therefore did not intend to commit arson addresses only the substantive allegation of mischief by fire; it does not remedy the failure of the revising court to undertake a comprehensive review. Consequently, the appropriate remedy is a revision petition that specifically alleges that the High Court acted ultra vires the procedural provision by not examining the entire record. The petition must request a writ of certiorari under Article 226 to set aside the conviction on the ground of procedural impropriety. Engaging a lawyer in Punjab and Haryana High Court who is experienced in criminal revisions is essential because such counsel can frame the petition to highlight the statutory requirement of a holistic evidentiary assessment, cite precedents where the High Court’s limited enquiry was struck down, and argue for the quashing of the conviction. The revision route is the only avenue that directly addresses the procedural lapse, whereas a factual defence alone would be insufficient to overturn the judgment that was affirmed without the mandated full‑scale review.

Question: What legal basis supports the issuance of a writ of certiorari under Article 226 of the Constitution in this case, and how does the procedural defect justify such extraordinary relief?

Answer: The constitutional provision authorises a High Court to issue a writ of certiorari to quash an order that is illegal, arbitrary or exceeds jurisdiction. In the present scenario, the order of the Punjab and Haryana High Court affirming the conviction was rendered without the required comprehensive appraisal of the evidential material, thereby violating the procedural safeguard embedded in the criminal procedure code. The High Court’s limited enquiry into the alleged charge defect, without assessing whether a reasonable body of men could have arrived at the jury’s conclusion, constitutes a jurisdictional error. This error is not merely a matter of legal interpretation but a breach of the mandated process that ensures fairness and prevents miscarriage of justice. Because the High Court’s own statutory duty was disregarded, the order is susceptible to being set aside by a writ of certiorari. Moreover, the accused remain in custody, and the conviction carries a rigorous imprisonment term; the stakes are high enough to warrant extraordinary relief. A lawyer in Chandigarh High Court, familiar with the jurisprudence on certiorari applications, can assist in drafting a petition that emphasises the procedural infirmity, the failure to consider the entire record, and the consequent denial of natural justice. The petition would also request that the court stay the execution of the sentence pending disposal of the revision, thereby protecting the accused from further deprivation of liberty. By anchoring the relief on the constitutional power to correct jurisdictional errors, the petition aligns the procedural defect with the extraordinary remedy of certiorari, ensuring that the High Court’s oversight is rectified and the accused’s right to a fair trial is restored.

Question: How does the pending civil dispute over ownership of the land influence the criminal proceedings, and why must the accused seek procedural redress rather than rely solely on asserting a right to the property?

Answer: The civil contention over possession of the parcel is the factual backdrop that gave rise to the alleged arson, but it does not alter the criminal liability framework. The investigating agency charged the accused with mischief by fire, an offence that is cognisable and non‑compoundable, and the trial proceeded on that basis. When the Punjab and Haryana High Court reviewed the jury’s verdict, it was required to examine whether the evidence, including the ownership dispute, could support a conviction. By limiting its review to the technicality of the charge, the High Court ignored the substantive interplay between the civil claim and the criminal allegation. Consequently, the accused’s assertion that they were rightful owners and therefore lacked criminal intent addresses only the substantive element of the offence; it does not cure the procedural flaw that the High Court failed to assess the entire evidential matrix. Procedural redress through a revision petition is necessary because the High Court’s order is predicated on an incomplete record, rendering the conviction vulnerable to being set aside. Engaging lawyers in Punjab and Haryana High Court who possess expertise in navigating the intersection of civil and criminal law ensures that the petition can articulate how the ownership dispute was inadequately considered and why this omission undermines the validity of the conviction. The petition can also argue that the High Court’s omission amounts to a denial of the accused’s right to a fair trial, as the court did not balance the Sessions Judge’s observations with the jury’s verdict in light of the ownership issue. Thus, procedural redress is indispensable; it targets the structural defect in the appellate process, whereas a factual defence alone cannot overturn a judgment that was affirmed without the mandated comprehensive review.

Question: What immediate procedural measures should the accused undertake to preserve bail and avoid further incarceration while the revision petition is pending, and why might they consult lawyers in Chandigarh High Court for interim relief?

Answer: Preservation of liberty is a paramount concern once the conviction has been affirmed. The accused should promptly file an application for a stay of execution of the sentence under the constitutional power of the High Court to grant interim relief pending the determination of the revision petition. This application must demonstrate that the conviction is tainted by a procedural defect and that the accused continues to be detained despite the pending challenge. Simultaneously, the accused should move for a suspension of the rigorous imprisonment term, invoking the principle that a person should not be deprived of liberty on a judgment that may be set aside for lack of jurisdictional compliance. Engaging a lawyer in Chandigarh High Court, who is adept at securing interim orders, can be advantageous because the jurisdiction of the High Court extends to granting such relief, and counsel familiar with local practice can efficiently navigate the procedural requisites for a stay. The lawyer can also advise on filing a separate petition for bail revision, highlighting that the accused’s custody is premised on a conviction that has not undergone the full evidentiary scrutiny required by law. By securing a stay, the accused remains out of prison, mitigating the hardship of incarceration while the substantive revision proceeds. Additionally, the counsel can prepare a detailed affidavit outlining the procedural irregularities, the pending civil dispute, and the potential miscarriage of justice, thereby strengthening the case for interim relief. These steps ensure that the accused’s liberty is protected during the pendency of the revision, and they underscore the necessity of procedural challenges over mere factual defences in safeguarding the accused’s rights.

Question: How can the procedural defect that the High Court limited its review to the charge framed for the jury be used to challenge the conviction and what are the practical implications for the accused?

Answer: The core defect lies in the failure of the revising court to fulfil the statutory duty to examine the whole evidential record before confirming a conviction. The law requires that, when a reference is made under the procedural provision governing jury verdicts, the High Court must weigh the Sessions Judge’s findings, the jury’s opinion and the totality of the material evidence. By restricting its enquiry to the narrow issue of whether the charge was defective, the court bypassed the mandated holistic assessment. This breach opens a clear ground for a revision petition seeking a writ of certiorari. The accused can argue that the judgment was rendered ultra vires the procedural safeguard designed to prevent an erroneous conviction. Practically, the defect creates a vulnerability that may lead the court to set aside the conviction, order a fresh trial or even direct an acquittal if the evidence does not meet the threshold of a reasonable jury. For the accused, the immediate benefit is the prospect of relief from the rigorous imprisonment term and the restoration of liberty. However, the strategy must also consider the risk that the court may deem the record sufficient and merely remand for a limited rehearing, which could prolong detention. A lawyer in Punjab and Haryana High Court will need to scrutinise the reference order, the charge sheet, the jury’s verdict form and the Sessions Judge’s report to pinpoint the exact procedural lapse. The counsel must also prepare a detailed comparative analysis showing how the High Court’s limited approach deviates from the statutory requirement, thereby strengthening the petition. If successful, the procedural defect can overturn the conviction irrespective of the merits of the underlying property dispute, providing a robust defensive avenue for the accused.

Question: Which documents and evidentiary materials should be gathered to support a revision petition and how can they be used to demonstrate the need for a full evidential review?

Answer: The first step is to obtain the complete trial record, which includes the FIR, the charge sheet filed by the investigating agency, the statements of all witnesses, the forensic report on the fire, and the property documents that establish the ownership and possession dispute. The jury’s verdict form, the Sessions Judge’s opinion, and the reference order issued by the High Court are also essential. These documents together illustrate the factual matrix and the procedural history. The accused’s counsel must also secure the bail order, any medical reports relating to custody, and the minutes of the jury trial if available. By juxtaposing the witness testimonies that speak to the accused’s claim of ownership with the prosecution’s narrative of intentional arson, the petition can highlight inconsistencies that the High Court ignored. The forensic report may reveal whether the fire was accidental or deliberately set, which directly impacts the element of mens rea. Property title deeds, tax receipts and cultivation records can substantiate the accused’s long‑standing possession, thereby challenging the prosecution’s assertion of malicious intent. Lawyers in Chandigarh High Court have experience in assembling such comprehensive dossiers and can advise on the admissibility of each piece of evidence. The petition should attach certified copies of each document, annotate them to point out gaps in the High Court’s review, and request that the court examine the entire record as mandated. By presenting a full evidential picture, the revision petition demonstrates that the High Court’s limited focus on the charge was insufficient and that a proper assessment could lead to a different conclusion on guilt.

Question: In what ways does the current custody of the accused affect the timing, content and urgency of the relief sought in the revision petition?

Answer: The accused remains in custody serving a term of rigorous imprisonment, which creates an immediate urgency to obtain relief. While the conviction is under challenge, continued detention may cause irreversible prejudice, including loss of liberty, disruption of livelihood and potential impact on the accused’s family. The petition must therefore request interim relief, such as a stay of the sentence or immediate bail, to mitigate the hardship. The timing is critical because any delay in securing release could render the accused unavailable for further investigation or for participation in a fresh trial, thereby weakening the defence. Moreover, the court’s discretion to grant bail while the revision is pending hinges on the demonstration of procedural irregularity and the risk of injustice. The content of the petition should therefore emphasise the procedural defect, the lack of a full evidential review, and the fact that the accused’s continued custody is predicated on a judgment that may be set aside. A lawyer in Punjab and Haryana High Court will need to file an application for interim relief alongside the revision, citing the procedural lapse and the principle that a person should not be deprived of liberty on an unsound basis. The petition should also attach the bail order, if any, and highlight the absence of any substantial flight risk or threat to public order. By linking the custody issue directly to the procedural defect, the counsel can argue that the balance of convenience favours release pending a full hearing, thereby protecting the accused’s rights while the substantive challenge proceeds.

Question: How can the defence frame the accused’s role in the alleged arson in light of the underlying property dispute and what strategic arguments should be advanced to undermine the prosecution’s intent element?

Answer: The defence should foreground the contested ownership and possession of the land as the factual backdrop to the incident. By establishing that the accused has cultivated the parcel for several years, possesses title documents, and has been engaged in a pending title suit, the counsel can argue that the accused’s presence at the shelter was motivated by a claim of rights rather than a malicious desire to destroy property. The strategic narrative should portray the fire as an accidental consequence of a heated dispute, not a pre‑planned act of arson. Evidence such as cultivation records, tax receipts, and testimonies from neighbours confirming the accused’s long‑standing use of the land can be used to support this version. The prosecution’s case hinges on proving the specific intent to set fire deliberately, which requires a clear demonstration that the accused acted with malice aforethought. By highlighting the absence of any direct evidence linking the accused to the act of igniting the fire, and by pointing out that the only incriminating statements are from co‑accused who may have motives to shift blame, the defence can create reasonable doubt. Moreover, the defence can argue that the accused’s participation in the mob was limited to protecting his own property interests, not to facilitate the arson. A lawyer in Chandigarh High Court familiar with similar property‑related criminal defences can advise on how to weave these factual strands into a coherent argument that the requisite mens rea is missing. By undermining the intent element, the defence not only attacks the substantive charge but also reinforces the procedural claim that the High Court should have examined the full evidence before affirming guilt.

Question: What are the risks associated with pursuing a revision petition instead of a direct appeal on the merits and how can counsel mitigate those risks while preserving the chance of overturning the conviction?

Answer: The principal risk in filing a revision petition is that the court’s jurisdiction is limited to procedural irregularities, and it may refuse to entertain arguments that go to the merits of the case. If the petition is dismissed on the ground that no procedural defect exists, the accused loses the opportunity to raise substantive issues such as intent or ownership, and the conviction remains intact. Additionally, the revision route may be perceived as a tactical delay, which could invite criticism from the prosecution and affect the court’s willingness to grant interim relief. To mitigate these risks, counsel should meticulously document the procedural lapse, demonstrating that the High Court’s failure to consider the entire evidential record is a clear breach of statutory duty. The petition should be drafted with precise references to the reference order, the charge sheet and the jury verdict, showing how the limited enquiry contravenes the legal requirement for a holistic review. Simultaneously, the counsel can embed a concise statement of the substantive defence within the procedural argument, thereby preserving the ability to raise merit‑based issues if the court permits. Engaging a lawyer in Punjab and Haryana High Court who has experience in navigating revision petitions can ensure that the filing complies with procedural prerequisites and maximises the chance of a favorable outcome. If the revision is successful, the court may set aside the conviction and remit the matter for a fresh trial, thereby providing a renewed platform to argue the merits. Conversely, if the revision is dismissed, the counsel should be prepared to file a separate appeal on the merits, using the same evidential record, to avoid forfeiting the defence altogether.