Mastering Criminal Appeals: Expert Guide on Drafting and Arguing

well the vision of the judge has to be holistic and not myopic the spirit of the judge must be liberal not

conservative the mind of the judge has to be flexible not rigid the vice city of judicial thought should be like water

it cannot be like rock crystallized wipers juices and vices so we should be guided by its mandate the constitution

of india and its philosophy we should be inspired by its streams and its preamble because the preamble contains the ten

commandments to deviate from these commandments is to commit a jurisprudential cardinal spin sin

those were the golden words from honorable justice to hansa's superannuation speech and uh so hello

everyone you're watching the virtual amicus and i am jai huda well quoting justice johan's extracts before him is a

matter of great honor because joining us today on the virtual micros is former chief justice of uttarakhand high court

former chief justice of telangana high court former judge of the high court

so today we are joined by honorable mrs this is absolutely no introduction someone who

boasts of a brilliant english vocabulary a tremendous legal acumen and a wonderful temperament as a judge he has

had a tremendous judicial career a wonderful legal career and under uh his cheese justice ship he's also

flagged off the five mobile e-court vans that were equipped with internet connectivity in computers for various

districts to start the mobile e-course in remote villages so that it's easy for everyone to access have access to the

internet to courts so and today he'll be doing a special session on criminal appeals how to pursue how to draft and

how to argue so thank you so much sir for taking our time for doing the session uh anything that you wish to say

before you start with this session sir no in fact i'm grateful to you for giving me this opportunity

of being able to address the young and dynamic lawyers the young lawyers are

the hope of our future therefore it is imperative that they be well prepared well stocked and should know how to

argue in the court during the course of my speech of course i'll reveal some

nuggets and some secrets of how a judge's mind works which is what

is the thing that the lawyers must learn to understand uh before they appear before a judge

i think it just makes the job a lot easier for a lord to know what is expected of him and what is

not expected often so we'll begin with this

lecture on uh how to prepare an articulation appeal very well so you may proceed sir okay

thank you thank you uh good evening to everyone and uh let me just briefly give you a bird's eye

view of the lecture that i have prepared

on the topic how to prepare an article criminal appeal which can be a rather daunting task where especially when

you're a young lawyer and you do not have too much of experience so briefly i'll be covering about 11

points first is the first principles of criminal law naturally you cannot

argue a criminal appeal effectively until and unless you are well aware of and understand what are

the first principles of criminal law number two how many different kinds of offenses do

we have and why is it that they have been classified into different buckets number

three how does one draft in a criminal appeal before one can be expected to argue the

first question is the drafting of a criminal appeal while you're sitting in your office

fourthly what are the grounds which are available to any to a lawyer in a criminal appeal

fifthly how to prepare for a criminal appeal how do you go through the reports of a criminal

appeal how do you decipher it how do you organize it sixthly

what happens when you have to argue an appeal not on behalf of the accused or the

offender but on behalf of the victim or the complainant because the very mode of argument

and the method you will use will completely change when you change your site from that of an accused to that of

a being in uh counsel for the complainant or the victim

your hat-trick changes your hat is no longer that of a defense counsel but now you

wear the head of a complainant or victim seventhly how do i argue uh an appeal before the court how does one begin the

opening of the case what is to be expected when you open a case

and eightly how do you prepare for the future cases

and lastly how does one point how it went down a court

there are certain tricks that one should know uh you may have a very tough judge to

deal with and there are judges who can be skeptical cynical hype or technical in

their approach now the question before the council would be

how do i make sure that i can die down this court and tie down this judge so that he gives a judgment in my favor

uh so these are the broad points that i'll be covering uh in my lecture

now when we talk about preparing a criminal appeal or appeal of any sport

as you well know when you appear before the courts there are two things that are happening

simultaneously one is your knowledge of law and second is experience of life

and that is what is going to be showcased before the court it is not only that your knowledge of

law is relevant at times what is relevant is your experience of life how deeply have you

studied life uh how deeply have you studied characters how deeply have you studied

people how deeply you have studied circumstances which

are brought forth while you're arguing a criminal appeal and when you appear in the court please

remember what aristotle said aristotle in his book says

that there are different ways of addressing a gathering and he says there are three different

ways of addressing any given gathering and he gives us three separate examples he says when you address the public at

large as a political leader would the gist of his argument is

emotional he has to steer the people emotions therefore he speaks about

the history the present what is happening what are the issues how do you resolve these issues and he may even

play on the fears of the people therefore he what he's trying to do is to whip up the emotions of the people

and take the example of mark anthony's famous speech in julius caesar when he addresses

uh the gathering of roman citizens immediately after julius caesar is assassinated in his

dead bodies lying and he addresses them as friends country and romans friends and countrymen

and he talks about the critical moment in roman history he says now we are faced with a critical

moment he wants to denounce the culprits but he cannot openly do so so he is appealing

to the emotions of the people aristotle says then there is an address which you give

in a parliament in a senate and he says there emotions really do not work what works

is in your rhetoric in your speeches what is good for the nation number one and what is good for the political party

number two number three a man may be addressing a court of law

they're neither the nation counts nor the emotions what counts are the cold facts of a case

the ingredients of the law the logic that needs to be marshaled out the logical arguments

therefore he says that you have to custom tell your speech depending on whom you're addressing and where you're

standing in which forum are you standing now before we go into how does one prepare and argue a

criminal appeal let us first deal with the first principles of jungle law because these are the cardinal

principles of criminal law which you will be dealing with day in and day out

the very first and foremost principle of criminal law is that every person is presumed to be innocent proven guilty

therefore in a common law country unlike a continental law country the burden of proving the guilt of an

offender lies on the shoulder of the state it does not lie on the shoulder of anyone else

therefore there are certain things principles which will now flow from this first

principle first of all every man is presumed to be responsible

for his act which we term as the individual liability of an offender secondly

when that offender is part of a group whether it be two persons or more than five what we

call under section 34 of ipc when two or up to four people are

involved we are looking for the common intention in under section 149 when you

become a member of an unlawful assembly which is five or more persons we are looking at the common object of the

assembly therefore we enter into from individual liability we enter into the next stage called the vicarious

liability under yks liability you're not only responsible for your own act more so you

are responsible for the act of others you may not be the person offender who has committed the murder

with stabbed the deceased but nonetheless your very presence at the scene of the crime will make you liable

for the liability of that person who had stabbed the disease and this is part of

vicarious liability number four every criminal offense has two parts to

it what we call the act which is in latin term is called actor serious and secondly the mental part which we

call menstrua or the intention but intention has many different forms in which it can be expressed it can be

expressed as knowledge as rashness

negligence fraudulent intention in case of cheating therefore we would have to prove the

prosecution would have to prove the existence of the menseria if the manceria does not exist

then off obviously the no offense is made out however there's another part of liability called

the strict liability and yes we have a strict liability case even in criminal law for example

kidnapping for example a

statutory rape with a minor there the intention of the person is not

so important in fact even if the intention is not proven the fact is the offense is still deemed to be completed

the other thing we must know about offenses is the different types of offenses which are in place in different

buckets especially in the ipc there are offenses against property

such as theft trespass extortion robbery then there's the second bucket called offenses against the body such as

assault hurt devious hurt rape murder culpable homicide culpable homicide not amounting to

then there are certain offenses which are against the state they need not be against an individual

as such or against a given community but our offenses under the state such as citizen waging war against the state

surprisingly there are even offenses against the judiciary for example perjury

giving its testimony under an oath or submitting false document knowing the

documents to be forged or to be false while during the course of the trial these are her offenses against the

judiciary there's a third categorization of offenses which is under the crpc

offenses have been classified under the crpc as bailable non-available cognizable or non-cognitive and this is

readily available in the schedule that is attached with the cnc in the clpc so if you whenever you're dealing with any

offense the first thing is please refer to that schedule and see the nature of the offense

is it cognizable is it non-cognizable is it bailable is it non-available what is the sentence prescribed for that

particular where is it tribal is it tribal by magistrate or tribal by the court of

sessions so this will give you a broad outlook of what sort of offense are we going to

deal with now this brings you to the next stage which is the drafting of the criminal

appeal and fortunately in rajasthan we are very fortunate as

high court lawyers or even as a district court lawyers when appeals come to us for in rajasthan we have a good

tradition that the complete record of the criminal trial is brought to us by our colleagues from the trial court

which is not the case as i've noticed in the state of karnataka while i was sitting there as a judge or even in the

state of telangana many a times when i would ask my lawyers in telangana high court

that please show me this document they'll say sir this document is not available with us because it was never

sent by our colleagues in the trial court but here you will in rajasthan you will

have the benefit of a complete record before you and it will be as voluminous

possibly as the entire record of the case coming from the trial code now when you

have that file before you the question is how are you going to go through that file how are you going to

analyze that file what do you read the first thing in that file my advice is that first begin with the

first and fire would be available readily as exhibit p1 uh most likely at the copy of the

complaint or the formal fr that is registered on the basis of that complaint would be as expected b1 or p2

and that documents which have been handed over to you the reason why i am asking you to go

through the fire is because naturally it is the basis the foundation of the entire prosecution case the prosecution

cannot differ from its sapphire it cannot travel too far from its fire therefore a fire gives you the bird's

eye view of what the entire case of the prosecution would be one of the points you will notice at the

end is whether the prosecution begins to differ from its fire if it does it is in trouble

if it goes contrary to or comes up with a totally different story it is in trouble therefore affire is the

first document you should read and when you read an f

read it very closely don't just cursely go through it for two reasons number one the reading

of the fire would also tell you what are the possible arguments which

can be raised therefore first notice and then as i'll tell you later on how

to analyze nfi and how to make your notes from nfire notice who is the complainant

is it someone a member of the victim or is it as a police officer who has brought suicide entire criminal

machinery into motion number one number two what is the place of the occurrence what

is the time of the occurrence how far is the place of the occurrence from the police station

when the fire is lodged when did it reach the magistrate's court

number two who are the accused persons who are named are there name takers persons or

unknown persons whether their fire has been launched against unknown person because this will also help you while

you're arguing therefore also notice who are the named accused

also notice what has been assigned to the accused what weapons have been assigned what roles have been assigned

to the accused is it that accused is peripheral accused or is he the main excuse

so analyze the fire as much as you can for

your final argument before an appellate report would be that these are the ingredients which are

prescribed by the law these are the facts of the case as narrated by the prosecution

however the facts do not fit into the ingredients of the crime therefore

my client is innocent that's the ultimate argument that you will have to place

therefore fi is a fundamental document it's an essential document that you must have the details

of the fire on your fingertips next read the dire judgment do not go at this

point into the testimonies first read the judgment and then start analyzing the judgment and

ask yourself the following questions number one is it a case of direct evidence or is it

a case of circumstantial evidence your preparation on both these counts will be quite different as you will see later on

therefore ask your question am i dealing with a case where there are indeed eyewitnesses

or am i dealing with a case which is totally based on circumstances as there are no eyewitnesses or

there are certain rare cases which begin as a direct evidence case because there are witnesses end up

being circumstantial case because the witnesses have not been believed yet the conviction is on the basis of the

circumstances therefore first ask yourself this question what sort of cases am i dealing

with number two how strong is the prosecution case

against my client and this is the crux of analysis

you will have to first read when we are dealing with the prosecution case what evidence out of the prosecution case has

been read against your client therefore look at the importance of the circumstantial evidence case and

especially in a circumstantial evidence look at the evidence which was read a is it the evidence of last seen

b is it the recovery from the accused c is the recovery corroborated by the fsl or the chemical report

or by the postmortem report how much corroboration is there d is there an extra judicial confession

is there a report which says yes the blood of the disease was found on the clothes of the accused

therefore what are the circumstances which have been added as almost as links number of links forming the chain

and ask yourself does the chain unknowingly point to the guilt of the person or

there are missing links which make no sense which may create sufficient doubt in the

mind of the court to disbelieve the prosecution therefore read your

judgment very carefully also ask yourself question number three has the prosecution brought in a

believable or an unbelievable case before the court and i'll give you two examples

we had one case which is the case from kushwada which was decided by a division venture of the rajasthan i quote it was

quite a sensational case i don't know whether many of you even remember that case

it was it was a sensational case from quota where it was alleged that the accused

had murdered his girlfriend whom he had taken out for a ride apparently they both had cold drink

there were allegations that he may have tried to mishandle her physically exploit her

but she resisted and he killed her so this was one strand one story that the prosecution was bringing however

when the case was being argued and the way the trial court had proceeded it turns out from

the record of the case the surprising the prosecution did not come up with just one history and that

is the requirement of law that prosecution must come up only with one story it cannot give me give the judges

three different options but unfortunately in that case prosecution did not come with single

story it came with three options option number one according to the testimony of the father

and according to their fiat the father said my daughters has gone missing

she may have been taken to a hostel where she may have been gang-raped and then murdered

that was the gist of that fire therefore now you have a story of a gang rape and a possible murder

or a possible kangaroo and a known murder story number two

and these were prosecution witnesses produced by the prosecution who said

we don't know anything about the young lady but all we know is that angkor shwada met with a car accident he

was lying in the car he was semi-conscious when we asked him what happened he said my car has a stuck

and there's an accident i need a glass of water can somebody please get me glass

therefore there was a question of an accident possible death of the young lady

through an accident and not even through a murder then there was a third

version and the version was that the cbi introduced a witness who was the younger sister of the deceased

who says no i sang kashwadua take my elder sister with him in the evening from the temple after that my sister

never came back and the police version that actually it was a case of murder now when you come

up with three unbelievable stories naturally you have no other option as a judge but to give the benefit of doubt

to the accused and this is exactly what the high court of rajasthan did another case which i had dealt with in

london was in case based on a testimony of his soul eyewitness and as all of you will

know that soul eyewitness has to be a witness of sterling worth

the slightest doubt in the case of the prosecution should be thrown out at the first plush it appeared to be

very strong case because here was the sole eyewitness who was the son of the deceased and what he says in his

testimony is that the accused was repeatedly going and going through our

farmland repeatedly my father told him to stop going through our farmland in the morning he

trespassed into our farmland my father tried to stop in the evening when he came with his

tractor again my father tried to stop him and the accused got mad and he hit my father

with the tractor and killed him and i am the sole eyewitness

after this alleged murder the other farmers were near about they all came and they rushed after they heard my

human cry and that is how my father died certainly on the face of it it looks

like a solid case from the side of the prosecution because there is only the sole eyewitness

the question before us was is this soul eyewitness a believable witness or are there are

certain tracks in the armor of the prosecution which tell us that no prosecution is not coming with clean

ends this story is certainly unbelievable and when we started analyzing the case during the course of

hearing a we discovered that according to the site plan the dead body was not in his

form as claimed by the sole eyewitness that you'll find the dead body in our farm

in fact according to the site plan the dead body was lying on a kacha road adjacent to the farm

number two the iowa says according to the soul alleged murder had taken place at six

o'clock in the evening on the other hand the io says that at nine o'clock in the morning the next day

when i went i found the dead body line on that katja road

now the what struck all both of us in the division bench both the judges myself and my colleague

that the occurrence is said to be of the evening at six o'clock

the sun is there the villagers come would they leave the dead body and die night in a village

in a kacha road or would the first human contact would have been a normal human contact would

be to pick up the dead body from there and dress it either to the nearest hospital hoping to save the person

or if they're convinced that the person has actually expired to carry the dead body back home why is

the dead body lying on a culture road throughout the night and that too when there's a

possibility that the body may be attacked by wild animals by village dogs

the witness does not say the soul witness does not say that i stayed with the dead body the entire night

now these are the cracks which developed in the case of the prosecution therefore we concluded the prosecution is coming

with a story which is unbelievable and hence again the benefit of doubt goes to the accused

then ask yourself also is the prosecution hiding material facts or material witnesses from the court

because now you're about to analyze the judgment and looking at the prosecution you have sufficient amount of

information as to what prosecution is pleading what it is trying to have sort of evidence has brought forth

while going through the judgment judgments ask yourself is the prosecution hiding anything for

example if their injury marks on the accused is there an explanation or no

explanation especially if those injuries are of serious nature not a minor nature but if they're of serious nature now

suppose the accused has a injury on his head

or a stab injury on his body are these injuries being explained by

the prosecution if not that throws a grave doubt in the case of the

prosecution it may even throw a grave doubt on what we term as the genesis the beginning of the prosecution case

moreover is the prosecution hiding material documents for example suppose

there is an fsl report or suppose there is a dna report however the dna and fsl report is never produced

take an example that the recovery memo is not produced there is an

identification parade but the identification memo is not produced and naturally under section 114 of the

evidence act the court should be requested to draw adverse influence against the prosecution

moreover suppose the prosecution is not producing material witness then why is it hiding

the material witness will tell you exactly what happened again an adverse influence to be drawn

against the prosecution so ask yourself is the prosecution coming up with clean hands or unclean hands the moment you

find that it is coming up with unclean hands that will make your job a lot easier

dealing with cases where there are more than one person's ask yourself question are innocent people being dropped in

generally in the case of 149 ipc innocent people are rotating generally in a case of 304b

innocent people belonging to the family of the husband are dropped in so ask yourself are innocent people being roped

in or is it that it's a natural narration of the events and only those who are relevant as offenders are being

mentioned by the prosecution number seven ask yourself how much

corroboration there is against the case of the prosecution unfortunately what happens is

in a crashing hurry to convict a person the learned trial courts tend to look at the oral evidence

and they say yes pw number one to eight has said so therefore conviction recorded however

the learned trial court does not look at how much corroboration there is of the witnesses and that is where you

will find the biggest crack in the armor of the prosecution so ask yourself

what are the corroborative what is the corroborative evidence for example you may have a recovery witness who says yes

like you stuck us there he got this knife recovered from there the knife does have blood on it

and that's where he stops and that's where he is expected to stop now

the trial court says yes the weapon of offense recovered at the behest of the accused

therefore he is guilty but ask yourself and ask the court where is the official report on it is

the report saying that the blood belongs to the deceased

because it is the fundamental duty of the prosecution not only to show that the blood is stained knife is recovered

it is more so their duty to prove the fact that the blood belongs

to the deceased is does not belong to any other person nor to the accused

otherwise how do we know in sitting in the court that it is not blood belonging to a chicken or to a goat

how do we know it's human blood therefore the corroborative evidence is necessary to read that recovery if the

prosecution stops at the point of saying there was a recovery human blood is discovered even that is insufficient to

convict a person on the basis of that recovery therefore ask yourself what sort of corroboration is there in

cases of direct evidence checkup does the testimony are the testimonies

of the witnesses corroborated by the site plan because many times you will find there's

a clear-cut contradiction between what they have narrated and what the site plan tells us

and please remember one of the fundamental principles in criminal law is

men may lie circumstances documents do not and especially those documents which are

contemporaneously made with during the investigation therefore the inquest report the site

plan the recovery memo the identification period the injury reports the

post-mortem report they become relevant to see whether there is corroboration or not and that is what is going to help

you separate the wheat from the shaft that is what is going to ultimately help the judge from decided whether the

person is guilty or he is framed but he is an innocent person then also ask yourself whether what is

the defense taken by the accused because you are after all the defense counsel

so you cannot go against the defense taken before the lower court however there are certain defenses for example

the right of private defense the honorable supreme court has said in number of cases

even if this defense is not pleaded by the defense counselor during the trial but if the court comes to the

conclusion that yes it is the right of private defense which was exercised the benefit of such

defense must be given to the accused although never pleaded during the trial so please remember

and ask yourself is it a case of total denial

is it a case of silence are you pleading any of the general exceptions

given in the chapter an ipc on general exceptions are you pleading a specific exception

even to murder there are certain exceptions that will reduce it to culpable homicide not amounting to

murder what is your defense before the trial court

then also very carefully read the arguments of the defense counsel before the trial court because that is going to

be the skeleton of your appeal now once you have analyzed the judgment so thoroughly

the skeleton and the muscles of your appeal are ready in your mind therefore now the question is how do i

draft my p there are two schools of thoughts on this one school

of thought says that the criminal appeals should be done in very vague terms and general terms and should not

be full of specific information i as a judge disagree and i'll tell you

the reason why i disagree with this thought as a judge when i read a file i would

like to know not only the gist of the case of the prosecution i would like to know what is the case of the defense

and what are the points that it is going to raise tomorrow morning when the matter is

going to be argued what are the loopholes that it's going to point out

therefore i would like to see that in the appeal itself therefore i prefer to have a rather

detailed and in fact i think most of us judges would prefer to have a rather detailed criminal appeal placed before

us so at least we have some information some impression of what is going to be argued

and which way the case is likely to tilt it is not to say that when we read the files we make up our minds we do not a

good judge never would he will still step into the court hall with an open mind ready to listen to all

your arguments but while you drafting the appeal keep these points in mind number one

emphasize the contradictions especially between the witnesses or

between the witness and the documents or even between documents for example you could have a case where

the enquest report says there is no injury visible on the body and yet

postmodern which says there are 52 injuries on the body now how could that be when the body was

discovered at the scene of the crime there were no injuries and yet in postmortem 2 report it says that there

are 52 injuries therefore ask yourself are the documents contradicting each other

therefore analyze and emphasize the contradictions because you are now trying to do in your appeal is to tear

apart the case of the prosecution or at least create sufficient doubt in the mind of the judge in the mind of the

court that the prosecution case cannot be accepted as the cause for truth and these are the reasons that you must

state in your appeal then also emphasize on the documentary evidence the postmodern report the fsl

report the chemical report in cases especially in case of ndps ballistic report

find out how many arguments you can come up with through the post-modern report and that is why

it is imperative that all of you must read beyond criminal law other areas of law

for example you must read medical jurisprudence you must read ballistics you must read about poison how many

different types of poisons are there are the poisons organic inorganic veg vegetable poisons chemical poisons what

is the effect of a poison what what are the symptoms of a poison how long does it take person to die

in cyber crime you must know what a computer is how is the message transferred over the computer house how

does an internet actually work what is identity theft so you must read beyond

just ipc crpc and evidence criminal law is no longer confined to these things it deals with other aspects as well you

must read about psychology because that will also help you analyze and deal with a witness

not to mention it will certainly help you deal with it judge what sort of psychology of the judge am i facing so

you must acquaint yourself with these other areas then emphasize in your appeal the

quality of the witness is he interested witness is he hostile witness is a child witness

is he a stock witness is he a chance witness what sort of witness has the prosecution

brought forth then come the most important part of your appeal

the grounds of ep and it's very simple we tend to think that it's very complicated but i'll tell

you the secret how to make it simplified or to simplify the procedure take your annual scc

manual that you get the annual volume of scc

go to the topic index open the topic index

if you go through the topic index there's a complete topic called criminal trial

and every criminal lawyer must have this protested copy of this on his table and especially the young ones

for in that topic index under criminal trial are given all the grounds possible grounds

which can be raised in a criminal appeal for example you're dealing with a case of rape

and especially case where the prosecutrix happens to be say just about to be a major 17 and a

half therefore the age will become very imperative

and in trade cases age always is because if she is on a borderline case you're trying to argue that no actually she's

an adult therefore it's case of consent not of rape beginning with the topic age

that index will give you all the other grounds and sometimes such unusual grounds

such as identification of person through his voice

now this comes in handy if you're dealing with a murder case where the murder had taken

place at the dead of the night and yet the prosecution is trying to say well the person was identified by the

witnesses by his voice can a person really be identified by his voice or even such rare topics as

moonlight murder under moonlight how the libel is a moonlight to identify a person

so you will get all sorts of from very general defenses to very specific to

very bizarre defenses and it's all available and mentioned in that topic index so please study the topic index

carefully it will talk about weapons it will talk about other circumstances death by

poisoning what is the duty of the prosecution when you're dealing with a case where murder has

occurred death by poisoning so it's all available there so keep that in mind you can keep that

in front when you're drafting and dictating your appeals and believe me in criminal appeal as in repetitions uh

there are only limited grounds that we can come forth they're not more than 12 crowns

in any criminal appeal so it always rotates and revolves around the same set of grounds

and once you're prepared one murder appeal thoroughly you will be ready to argue

and prepare your next murder peace you know with a lot of sense of ease now

how does one prepare an appeal that is the most important part because unless your

preparation is very well done you will not be able to present your case and please remember

in a criminal appeal you're the master of the facts and most criminal appeals revolve only on facts

they don't really generally revolve around interpretation of law it's reality that you'll get a criminal

appeal where the interpretation of law will become relevant

but basically it's a case based on facts the first thing i would do as a criminal

lawyer is to buy myself 10 notebooks and i'll tell you why i'm asking you to buy notebooks because this

is how you're going to prepare your criminal appeal and this is the gist of my entire lecture

you have to deal with the facts and the reason why i'm asking you to thoroughly

critically analyze the evidence is very simple if you look at the rate of conviction in

our country 48.8 of the cases end up in conviction that means still almost 51 percent of

cases end up in equitable that means majority of our cases are still ending up in equitable in fact

you'll find that the more you analyze in evidence the more you go through the file

the more you will be convinced that it's a case of acquittal and not of conviction eighty percent of the

prosecution cases are so weak because the investigation done

extremely poorly the prosecution has not presented his case properly

therefore go with the confidence that you are going to win the case not lose the case

it's a rarity to come across cases where the prosecution has come up with a watertight case

now when you have this notebook down to page one and again go back to the fire

as i said critically analyze their fire and jot down everything from that fire the name of the complainant place of

occurrence time of occurrence all that we had said earlier put that in page one

page two come up with a complete list of witnesses which is readily available in

any criminal file that will be readily available even in the record that you have already have

page three write the list of documents that the prosecution relies upon and

i'll tell you why i'm asking you to write all these things once you do that then also write the

list of page four right the list of defense witnesses because you're going to

emphasize on the defense witnesses also write down if there are any documents or any material

articles produced by the defense then begins the critical analysis of the testimonies and this is where you have

to really slog and it's a time consuming uh exercise but this is what will make

you a great criminal lawyer and will distinguish you from a good and a great criminal lawyer to an ordinary criminal

lawyer begin charting down with the examination in chief of each witness

jotting down each sentence of his testimony no matter how long that testimony may be

but before you jot down just do yourself a favor fold the left part left side of the page

leave two inches and fold it there after two inches and i'll deal with why i'm asking you to leave that as blank space

on each page jot down each one of his line and under the line write down the line number the

page number the paragraph number please also note whether it is from top of the page or bottom of the page and i'll tell

you we'll deal with it when we talk about your argument

in the quote why this information is critical do that with all the witnesses from pw1s

to let's say pw8 if there are only eight prosecution witnesses having done that go on to the defense

witness if any do the same thing with them now you have

the gist of the entire record with you and now begins the analysis and this is

where the hand side will now come into prominence start

reading each witness and lo and behold you will start noticing the contradictions between the

testimonies the omissions and the testimonies the exaggerations and the testimonies

we'll start seeing the contradiction between a witness and the document and start noting down all these

contradictions for example pw1 says that pw3 made the following statement at the

scene of the crime pw3 is absolutely silent that he made no

there's no evidence in his testimony saying he made any statement bw2 tells the court that pw5 came to my

house and said your father has been killed therefore rushed

to the scene of the crime pw5 is absolutely silent that he ever went to the house of pwp

to tell him that your father has been killed and that is what prompted pw2 to rush to

the scene of the crime start jotting down all these contradiction on that left

space that you're left out because when you present a testimony let's say i'm analyzing i say yes during

my argument i said the star witness pw8 so i read out the testimony and then i tell the judges

he's the star witness now kindly consider the contradictions in his testimonies now kindly see what

he is doing is he a reliable witness suppose it's a recovery witness but he happens to be a chance witness

suppose he is a recovery witness and i can prove through his testimony that he is a stock witness

he has not only had the police in one case he has been there recovery witness and plenty more

in the famous case of women around here this is one of the point that bothered us while we were hearing the appeal

the recovery witness was a recovery witness for the police in 60 other cases rather surprising that the police keeps

on finding the same recovery witness every time there's a recovery they just locate one person in a large city called

jaipur and they go and grab that person and say now become our recovery witness what

sort of recovery witness do you have therefore start writing all the contradictions on that left hand side

do the same thing with the documents also note whether the documents have any contradictions between them

but do not note the minor omissions many times especially the young lawyers when they argue the in the

quote they say sir one witness said it was 10 30 the other witness said 11 o'clock

honorable supreme court says forget about it mathematical precisions cannot be had from witnesses you

as far as the witness say that yes the occurrence occurred at the daytime in the morning that is sufficient

yes the concrete contradiction would be if somebody says the fence occurred in broad daylight and another witnesses

know it occurred at the death of the night but the difference between 10 30 and 11 that's a minor contradiction so

please do not emphasize on that and let me tell you one thing that irritates the judges if somebody keeps on emphasizing

only on minor contradiction rather than showing the major contradiction then also write in your notebook

the character and kind of witness for example if he is a hostile witness in that index you are made of witnesses

write down hostile so you'll know how many witnesses have

turned hostile during the course of the trial write downward is a recovery witness

where there is an interested witness where there is a child witness so that should be available readily

available in your index itself and this will help you while you're arguing your case

also ask yourself and jot down whether the witness happens to be a fake witness for example in circumstantial evidence

cases what happens is in order to strengthen the prosecution case prosecution will always come up with

this story oh well there was an extra judicial confession so now you have a fake witness being

implanted into the by the investigating agency will come and say yes yes that man came and made

an extra judicial confession to me ask yourself

does it pass the three tests for acceptance of an extra judicial

confession a is it natural b

is it made to a person in whom the offender would have an implicit faith whether he is his relative whether his

dear friend of his why does this offender go to this person to make a confession

and that to an extra judicial confession now in one of the cases in telangana this is exactly what happened the entire

prosecution rested only on that basis of extrajudicial confession and the extra judicial profession surprisingly was

made to a person sitting at 430 in his office by the accused the accused happened to

merely walk into his office and said by the way i want to make an extra judicial confession and let me tell you i

murdered so and so the question is is it natural for someone to go enter into a bureaucratic

office and tap the person sitting at the desk and say sir i like to make an extra

judicial confession that person is neither his relative nor a friend nor anyone close to him

he is a total stranger and this is what the witness admitted in his cross-examination that this man was a

total stranger walked into my office now that cross-examination demolishes the entire case of the prosecution

and that is the reason why the offender was finally acquitted by us then also emphasize and note down in

your notebook the logic of the trial quote because this is the ultimate frontal

attack of yours will be on the logic of the trial called judgment therefore ask yourself

has the london trial court judge looked at the relevant evidence

has he interpreted or misinterpreted this in evidence whether he has ignored relevant evidence

whether he has admitted inadmissible evidence for example in telangana unfortunately

most of my judicial officers have this uncanny habit of reading the confession made to a police

at a police station as a substantial piece of evidence therefore that interrogation record is

read as a substantive piece of evidence which is prohibited by the evidence act but unfortunately the judicial officers

of telangana did not know that till i started asking them on what basis are you reading this evidence sir it's

an ad inadmissible except under section 27 of the evidence act that is a very limited part of his statement given to

the police that part which will lead to the discovery of a fact can be read nothing else

therefore stop reading the interrogation part of his uh statement when he said to the police

well this is how i killed him that cannot be read therefore please ask yourself and emphasize in your notebook

whether an inadequate piece of evidence has been brought in or ask yourself is the entire case decided

on the basis of conjectures and surmises and there are possibilities that many of our judicial officers started doing that

and it's unfortunately but it's happening um

where judicial officers just reproduce the testimonies of the witnesses

and record the conviction without analyzing the evidence so

then point out that in the entire case is a without any reasoning be based on conjunction surmises which

cannot be because the burden of proof and the extent of proof

is beyond a shadow of doubt therefore conjunctions or mices have no play in a criminal trial or in a

criminal uh judgment then ask yourself what cogent evidence has been read against you because you

will be asked this question what is the evidence that was read against you so jot that down on a piece of paper in

that notebook and that is how you will now begin your opening of the case

now the presentation of the appeal let me now deal first with the art of advocacy because that is the most

crucial thing that any lawyer must know and these are the things that the judges do look for although you do not realize

this is how the judge's mind works the first thing we look for in a council is

something which may appear very irrelevant to you but it becomes extremely crucial to us

your appearance in the court how well dressed are you how well groomed are you your etiquettes

your mannerism someone who comes to the court shabbily dressed

clearly shows that he has no interest to know his own self let alone in the interest of his client

someone who does not exude confidence positivity

is like not likely to get a favorable order from the court

therefore groom yourself make yourself presentable

go absolutely clean shaven before the court don't look like someone who just rolled

out of the bed and came to the court that is the most irritating thing to any judge because when we judges go to the

court we groom ourselves we spend time looking at ourselves we want to give a certain impression to the public at

large that now you have really entered the temple of justice therefore those who are the priests of this temple

namely the lawyers cannot afford to look like you know they're just rolled out of the bed

secondly we look at the reputation of a lawyer your reputation in fact precedes you even before you come to the diocese

we all know your reputation your reputation precedes you in the sense that as lawyers tend to dissect judges

we judges also love to dissect all of you and you are ruthlessly dissected in our common room when we meet for lunch

if your lawyer who is known for preparing his cases very well

who is known for keeping himself within the report who is known for his mannerism his

etiquettes his brilliance his logical arguments we applaud that lawyer in the common

room if you're a lawyer who is content chris who is always

foul-mouthed tends to shout in the court we know that even before you have approached the dials that we have a

headache coming our way therefore please safeguard your reputation

we know what your reputation outside the court is we certainly know what your reputation inside the court is

the biggest weapon of a lawyer is his politeness and if you observe any of the senior

councils whether of your own honorable high court or for the honorable supreme court what will impress you is their

politeness please go through the way and see how

mr feline used to appear or appears before the court even how

the learned senior advocates in your own high quality peer before the court

you'll find one common denominator they have an utter sense of politeness we as judges many times realize and we

are well aware of the fact that some of these senior advocates are far more brilliant than we are they're

specialists of their area we may not be and yet when they address us to do it do it with all sense of humility

and the command even when a judge may ask a question that may sound rather ridiculous

this will never tell a judge that it's ridiculous they'll simply say that

your lordship i ask myself this question which is a very polite way of reminding the judge that it's an important

question or question that should not really have been asked in the circumstances of the case

but he would never say that to a judge that i'm sorry your lordship you're not you have failed to appreciate my

arguments or you're off the record that never should be please remember the relationship between the court and the

lawyer is that of almost of the king and the courtier

the court here can never afford to irritate the king you irritate the king and you're out of

that fort or you will have your head taken off in the olden days in the feudal days

if you irritate a judge by whatever means you will not have a favorable

order therefore politeness is one quality that must be increased

the other thing we look for in a lawyer is intellectual honesty there are certain judgments which will

go against you there are certain circumstances which will work against you you must be able

to tackle that you must be able to tell the judge that i will not distinguish these judgments which are apparently

against me but now i will distinguish and show your lordship how they are inapplicable to the present case

therefore we want to see intellectual honesty if there are indeed judgments which are against you you should be

frank enough to say yes they are indeed against me and then want to persuade his lordship

to take different view the other thing that we look for is patience of the lord towards the judges

of course each judge and every judge must be patient towards the london members of the bar

and then the question is how patient are you towards us you have to realize we two are human

beings we do come at times we do come to the port with a head full of troubles of certain concerns which may

be personal which may be family which may be community which may be some news item which has upset us

there aren't moment when we do get tired especially at the end of the day and the question is how patient is the

judge being the how patient is the lawyer being with the bench

there are times when we give hints the lawyer refuses to take it perhaps when the hint is given it should

be immediately be picked up by the lawyer and then move on

if the judge is saying that i am not convinced mr counsel by your arguments argument number three there is no point