Appeals court can't judge witness's 'vibe' if trial judge didn't write it down

The trial judge didn't write down how the witness acted on the stand. So when the appeals court called him 'evasive,' the Supreme Court had one thing to say: that judgment was "an exercise in air."

The witness took the stand. He answered questions. The trial judge watched him—his face, his pauses, the way he held himself. But the judge wrote none of it down. Years later, an appeals court picked up the transcript. They read the words. They called the witness "evasive." That single word reversed the verdict. And then the Supreme Court asked: who gave them the right to see what the trial judge never recorded?

The answer came in R. Palanisamy v. State By Inspector Of Police. A trial judge's eyes are the only ones that see a witness in person. If those eyes fail to write down what they saw, no higher court can invent it from paper.

When the trial judge stayed silent

In the trial court, R. Palanisamy faced charges brought by the State through the Inspector of Police. A key witness gave testimony that the prosecution believed was crucial. The trial judge heard the witness, watched him answer questions, observed his demeanour (the way a person behaves, speaks, and reacts while testifying), and then delivered a verdict.

But the judge's written record contained no note about how that witness behaved. No observation about confidence or nervousness. No remark about hesitation. The deposition (the written transcript of what the witness said) was there. The non-verbal context was missing.

The case moved to an appellate court (a higher court that reviews the trial court's decision). The appeals court read the transcript, studied the evidence, and concluded the witness had been "evasive." That word carried weight. It suggested the witness was dodging questions, hiding something, not to be trusted. Based partly on that assessment, the appeals court reversed the trial court's decision.

Why the Supreme Court stopped the appeals court

R. Palanisamy approached the Supreme Court. The question was simple: Could an appellate court, sitting years later and reading only a transcript, decide that a witness had been evasive when the trial judge—who actually saw the witness—had never recorded any such observation?

The Supreme Court's answer was a firm no.

The court pointed to a fundamental principle of evidence law: the trial judge is the only person who physically observes the witness. They see the witness walk into the courtroom. They watch the face as questions are asked. They hear the tone of voice, the pauses, the changes in posture. All of this—what the law calls "demeanour evidence"—is invisible in a written transcript. A transcript records only words. It cannot capture the sweat on a forehead, the tremor in a voice, or the long silence before a carefully rehearsed answer.

The law requires the trial judge to make a contemporaneous recording (a note written at the time of the examination) about the witness's demeanour. This note becomes part of the official record. It tells the appellate court: "I was there. I saw this witness. Here is what I observed." Without that note, any later assessment of demeanour is guesswork.

The Supreme Court put it bluntly: appreciating evidence based on demeanour, "in the absence of the trial court's recording in the deposition itself about the nature of his demeanor," is merely "an exercise in air." The court added that such retroactive appreciation "will not be judicial way of appreciating the quality of the evidence of a witness."

What the law actually demands from a trial judge

This ruling rests on Section 280 of the CrPC (the Code of Criminal Procedure, which governs how criminal trials are conducted). Section 280 says that when a witness gives evidence, the judge "may" record remarks about the witness's demeanour. The word "may" has often been treated as optional. But the Supreme Court's judgment in R. Palanisamy makes clear that this is not a mere formality. It is a critical duty.

Think of it this way: a trial is not just about what was said. It is about how it was said. Two witnesses can say exactly the same words. One might be telling the truth. The other might be lying. The difference lies in demeanour—the hesitation, the eye contact, the confidence or lack of it. Only the trial judge, who is present in the room, can perceive that difference. And only by writing it down can they preserve it for the record.

Without that written note, an appellate court reading the transcript sees only the words. They cannot see the witness. They cannot judge credibility from a page. Any attempt to do so, the Supreme Court held, is not judicial reasoning—it is speculation dressed up as judgment.

Why this matters for every trial lawyer

For practising lawyers, this judgment carries a practical lesson. If you are appearing before a trial court and a witness's demeanour is important to your case—whether because the witness seemed truthful and confident, or because they appeared evasive and rehearsed—you must ensure the trial judge records that observation at the time of examination.

This is not something you can fix on appeal. By the time the case reaches a higher court, the witness is gone. The moment has passed. The appellate judges will never see that witness's face. If the trial judge did not write it down, the demeanour evidence is lost forever.

The same logic applies in reverse. If you are on the losing side and the trial judge made no demeanour note, you can argue on appeal that any adverse demeanour finding by the trial court was unsupported. The record must speak for itself.

THE PLAY: At the end of every witness examination, ask the trial judge to record a specific demeanour note—or object if the judge relies on demeanour without having recorded it.

The record is all that travels upstairs

An appellate court does not re-hear witnesses. It reads the record. That record—the transcript, the exhibits, the judge's notes—is the only thing that travels from the trial court to the higher court. If the demeanour of a witness was not captured in that record, it does not exist for the appellate court. Calling a witness "evasive" based on a transcript alone is not judicial appreciation. It is, as the Supreme Court said, an exercise in air.

The trial judge's pen, in that moment, is the only instrument that can preserve what the eyes saw and the ears heard.