criminal appeal

 How to prepare for a criminal appeal: justice chouhan : the virtual amicus

1. Individual responsibility : every man is responsible for his own actions

2. When offender is part of group sec 34 IPC two to four look for cimmin intention

3. Five ormore common object –

4. Vicarious liabililty – group act lies on one who is member , just presence is enough

5. Every criminal offence – actus reus, mens rea- intention can be knowledge, rashness, negligence, fraudulent intention in cheating – prove men rea

6. Liability of state to prove

7. Strick liability – kidnapping , statutory  rape of minor – intention is not proven still offence is deemed completed

8. Different buckets – property – theft robbery extortion dacoity

9. Body- assault, hurt, grievous hurt, rape, murder, culpable homicide amounting to murder, culpable homicide not amounting to murder

10. State – sedition, waging war against state,

11. Judiciary- perjury, false docs, false statement under oath

12. Crpc – bailable non bailable, cognizable non cognizable  refer to schedule, first place to check out

13. Where triable – magistrate, sessions – direct indirect route

14. Complete record of trial is brought to high court – Karnataka, Telangana is not sent to high court, rajasthan complete record is kept before you.

15. Read FIR, complaint – foundation of prosecution case, it gives limits to which prosecution can go, where prosecution differs from fir , it is in trouble – possible arguments that can be raised

16. Who is complainant , what is the place time of event, how far from PS, when it was lodged, when it reached magistrarte, accused persons are known or unknown , who they are , what weapons  linked collected from accused, found on him, seized from him or at his behest

17. Facts do not fit into ingredients – appeal grounds

18. Trial judgement – read analyze- direct evidence or circumstantial evidence, begin direct and later go on circumstantial evidence

19. How strong is the prosecution case against my client

20. What evidence against accused, look at circumstantial evidence offered, last seen, recovery from accused, recovery corroborated by FSL PM reports, extra judicial onfession, blood found on clothes of accused, - chain of evidence  events – any breaks in chain – belief or disbelief –

21. Believable or unbelievable case made by prosecution

22. Accused killed girl friend, had drinks, wanted to sex she refused and rape done, killed

23. Prosecution did not come out with single story but with three opotions, as per FIR, FATHER my daughter gangraped murdered

24. Story ii – witnesses – alibi, semi conscious and in car , semi conscious, death of lady by accident and not murder

25. Story iii- cbi younger sister – saw together last with accused – hence murder

26. Judge gavebenefit of doubt to accused

27. TS – sole eye witness – slightest doubt will kill the case – he is son of deceased – accused repeatedly trespassed – morning and evening – killed by tractor while trespassing

28. On face – solid

29. Is sole eye witness believable eye witness – per site plan , dead body was not in farm, it was on a kutcha road , witness six pm, nine am next dead body found on kutcha road, sun and villagers will they leave it entire night. Why not pick up and rush to hospital, or carry the dead body back home, why leave it to dogs and animlas,, witness did not stay with body entire night, story of prosecution is havings chinks

30. Prosecution is hiding – wht is is being shown and not showing – injury marks of accused – serious but not explained by prosecution ,- stab on body or hit on head – how explained and how it gels with prosecution  case

31. Is it hiding FSL REPORT DNA REPORT  not produced – identification parade done but memo not produced

32. Material witness is not produced – what is unclean hands and hiding

33. Group of persons – are innocent roped in – family of accused are roped in – releant persons or irrelevant persons – how much corroboration is there

34. Too much rely on oral evidence – how much corroboration between different witnesses

35. Recovered from them – blood, recovery of weapon at behest – ask for FSL report,  blood belongs to the deceased – not just knife , duty to prove the fact that blood belongs to deceased and not chicked on goat or of accused, corroboration is necessary – recovery alone , blood alone not sufficient – check up testimony of witnesses corroborated by the site plan

36. Men may lie circumstances documents do not lie, those made cotemporaneiously made, injury report, pm report, site plan, FIR,

37. What is defence taken by accused – right of private defence , even if it is not pleaded court can give benefit on its own, general exception, specific exception, homicide not amounting to  murder at trial court

38. Read arguments of defence at trial court

39. How to draft

40. Vague terms method – judge disagrees, like to have full facts , I would like to know the expected line of defence, I need detailed line of argument of defence,

41. Open mind in court but still draft – emplansize contraditions witness to docs , docs, witnesses

42. No injuries while picked up – PM report says many injuries

43. Create sufficient bgrounds to doubt

44. Documentary evidence – reports ballistic ndps, fsl , PM report – read beyond criminal law, all FS subjects. Digital evidence, working of computer, psychology, judge psychology

45. Quality of witness – interested stock chance child compromised

46. Annual SCC topic index, criminal trial , on his table – all possible grounds which can be raised in criminal appeal

47. Rape – just bout being a major, bornder line , argue consent,

48. Index will give unusual grounds – id of person based on voice

49. While the person was id by body or by voice

50. Murder under moonlight how reliable to identify a person

51. Topic index gives all

52. Weapons, poisons, duty of prosecution

53. Grounds of appeal – limited grounds not more than twelve grounds – once one appealed , rest will follow

54. How to prepare an appeal – be very well done , master of facts, revolves around facts , law is relevant only rarely

55. Note books

56. Facts  alone, critically analyze evidence – 51 pc cased end up in acquittal

57. Analyze evidence, more of acquittals prosecution cases are weak, not investigated, not preseted properly- rarely come with water tight

58. Page 1 critical FIR

59. PAGE 2 complete list of witnesses in criminal file

60. Page 3 lis of documents entirely

61. Page 4 list of defence witnesses

62. Page 5 material articles produced by defence

63. Page 6 analyze testimonies – good vs great criminal lawyer

64. All witnesses , prosecution, defence

65. Jot down points, P VS D witnesses

66. Analyze – contradictions, exaggerations, note them down

67. Time line, sequence of events , steps in an event,

68. Pw testimonry star witness now see contradictions and how reliable is he

69. Chance recovery witness is stock witness

70. Recovery witness of police in sixty other cases

71. Do the same with docs

72. Donot note minor differences

73. Do not expect mathematical precision

74. Day vs night is good, ten v eleven is irrelevant – judge gets irritated

75. Note book character and kind of witness – hostile witness , how many , interested witness, child witness

76. Whether fake witness, extra judicial confession – fake wintess, pass three tests natural , made to person to person with faith, why to to this person to make extra jusicial confession

77. To a person in office during office hours and get in and give extra judisical confession, total stranger

78. Logic of the trial court, ultimate frontal attack

79. Looked at all evidence, mis interpreted, ignored releant, admitted irrelevant evidence,  made to police is treated as substantial piece of evidence, irrelevant is except sec 27 linked to recovery of weapon or evidence

80. Inadmissible piece of evidence – conjectures and surmises by judge  in trial – reproduced the testimony without analysis

81. Burden if beyond shadow of doubt..

82. What cogent evidence is read against you – on a piece of paper – argue in court

83. Judges do look for these items – appearance in court well groomed, etiquettes mannerism, shabby dress he has not interest in himself and in case, must exude positivity , clean shaven, donot come to court as if from bed to court

84. Court is a temple

85. Reputation of lawyer precedes

86. Mannerism brilliance logical arguments, v cantenkeour,s, shout at judge, safe guard reputation outside nad inside court

87. Be polite, at all times

88. FALI NARIMAN , SENIOR ADVOCATES IN YOUR COURT, THEY ARE ALL POLITE

89. Advocates are more competent than judges but they defer to the judge, I asked myself this question, and found not worth following it up with evidence

90. court and lawyer is that of almost king and courtier – never afford to irritate the king , if you do your head rolls

91. intellectual honesty – for or against you, you should show how it is

92. be patient towards judges

93. judges are human

94. tired

95. when judge gives hints, lawyer should pick it up and move on

96. do not repeat argument which judge said not convinced , go to next argument

97. how well you know your judges , - their psychology of judge

98. technical, sceptical, cynical, weaknesses, pro labor, anti management, left leaning, gender issues , , depth of matter, only at periphery of matter, know you judges

99. accordingly modify arguments,

100. knowledge, read as much as possible, covers all subjects of human knowledge,

101. even satellite falling from sky – whom to sue, treaties laws on space

102. male lawyer read women magazine

103. triple talaaq – women criticized triple talaq , gender issues , domestic violence cases, child v profession, more gender issues , read their view point, be gender sensitive, patriarchical views are not relevant,

104. do not classify women, read their concerns – pregnant post delivery depression, mother can even kill a child post pregnancy

105. during pregnancy , post pregnancy , chemicals dictate particular behaviour

106. feed , protect,

107. judges do not like emotionalism

108. do not attack opponent counsel

109. do not exaggerate

110. no long speeches

111. do not moralise

112. morality is not relevant , stick what is legal

113. do not over exaggerate

114. know your judge

115. less emotion the better

116. what is difference between civil and criminal cases

117. civil – my rights, his duties, he breached, hence my right, my compensation, decree for specific performance, I am entitled to relief of restoration of property ,

118. criminal trial – law gives therse requrements, facts of case – they don’t fulfill the ingredients of the law , hence offence is not covered and hence my client is innocent

119. writ – positive , rights under coi, restrore, stop breach, give positive order in my facour

120. type of argument wich is needed

121. how to pen the case – read fir, charges sections analze fir, what evidence is given by prosecution, and break it down,

122. do not start with my client is innocent, leafe it to court

123. trial court evidence – defects, esp in circumstantial evidencde, false circulmstatnces against me id, extra jusicial confession, , search seizure, arrest

124. give summary of arguments  first, then give details, judge will bring you to point of importance, reduce scope of arguments,

125. take points one by one , have your note book

126. evidence contradiction , omission, exaggeration, give line , para no , from bottom of page, top of page, from mote book , exhibit, page no of papers, file, wirte line no para no, from top or bottom

127. each argument support with case law, one by law  SC held identificdation at the court for first itime is no identification at all

128. simplify for them, allow them to note down your references case law

129. cite full bench of other HC, in same court, only division bench not individual judge

130. persuasibe value , land mark judgement, last judgements only two for each point

131. must know rules of precedence,

132. do not have judgement which are already overruled

133. SCC will tell you in which point it is overruled

134. Weak ness of prosecuteion case, , logic of trial court , consistent flow of logic, any conjectures and sumises

135. If from side of victim complainant :

136. Arguments change , prep will be same

137. Facts do fit into offence as per law guilty and nothing else

138. Scope of interference in appeal is limited, if two interpreations possible say appellate court will not interfere, view of trial court is the correct v incorrect view , not tow interpeationa has to be told,

139. Reasoning of trial court judge, missed misinterpreted, be on positive side if from victim side

140. Prosecution has water tight case – argue not 304 per two, one of exceptions, specific exceptions, offence ok but sentence is shockingly disproportionate, already in jail enough to cover justice hence please release,

141. Death sentence case is only rarest of rare case, hang or life sentence will suffice

142. Reduce it to twenty years. Not fourteen years, not death , of till end of his natural loife

143. End – summrise your arguments, repeat eight points listed first

144. Tie down a judge -citation will tie him down, SC, OWN HC,  full bench of other HC

145. Submit written argumetns even in criminal cases.

146. It is part of judicial record, and use it in SC

147. Writ petition

148. Notice on first day listed for first admission, raise constitutional issue, judge cannot dismiss, or tax layers, raise constitutional validity of statute , no judge will exparte, he has to issue noticed to state,

149. Local hindi far ahead. As a language , ba vs va,