Adv. Shri Singh's Take on Examination-in-Chief

Summary

Advocate Shri Singh delivered an insightful session on the importance and intricacies of examination-in-chief, a crucial part of legal trials. He emphasized that while cross-examination is often highlighted as the trial's heart, examination-in-chief is indispensable as well because it sets up the case by laying out all the relevant facts. Singh shared his experiences from the courtroom and gave advice to future litigators, explaining how to effectively navigate the legal landscapes, such as forming a strong case theory and managing witnesses. This session was part of an event organized by Jindal Global University, and was praised as engaging and highly enlightening for the attendees.

Highlights

• Advocate Shri Singh emphasized that trial success relies heavily on a robust examination-in-chief. 📜
• He pointed out the importance of a cohesive case theory, which guides the questioning process and aligns evidence. 🎯
• Shri Singh advised future litigators to embrace adaptability and learning as they approach their legal careers. ➡️
• The session encouraged the importance of understanding legal documents and courtroom dynamics for effective litigation. 🔍
• Students were advised to maintain clarity and directness in their questioning to keep the focus on relevant facts. 🎤

Key Takeaways

• Examination-in-chief is crucial for setting up the trial's factual backbone, giving context for cross-examination. 🎭
• The process requires thorough preparation and a clear case theory to effectively present the witnesses' testimonies. 📚
• Lawyers should focus on ensuring their questions align directly with the facts, avoiding complex legal jargon. ⚖️
• Understanding trial nuances, like the hierarchy of questioning and legal strategies, can lead to more effective litigation. ⚔️
• The legal landscape requires adaptability and continuous learning for budding lawyers. 📘
• Shri Singh's emphasis on procedural understanding helps budding lawyers avoid common pitfalls. ⛳

Overview

Shri Singh’s session on examination-in-chief was a compelling exploration of trial preparation and execution. He started by highlighting how cross-examination might get more spotlight but reiterated that examination-in-chief is where the narrative begins. He shared practical legal insights and strategies he uses in his courtroom journeys, showing young lawyers how to prepare thoroughly from the onset.

As part of his insights, he talked about the necessity of developing a clear case theory. According to Shri Singh, having this guiding framework aids significantly in both presenting evidence and withstanding cross-examinations. His discussion illuminated the meticulousness with which legal professionals must handle witness examinations, underscoring the balance between demonstrating case facts and avoiding leading questions.

Throughout the session, Shri Singh also shared personal anecdotes and reflections on the legal profession. He connected with the audience through practical advice, like understanding procedural norms and witness dynamics, stressing the value of adaptability in law. The students left with a better appreciation for the complexities of legal practice and a clearer picture of the skills needed to succeed as future litigators.

Chapters

• 00:30 - 01:00: Introduction The chapter titled 'Introduction' sets the stage for what is to come in the document. It likely provides background information, outlines the purpose of the document, and previews the topics to be covered in subsequent chapters. Typically, an introduction aims to engage the reader's interest and to identify the scope and structure of the content that follows. As the transcript is not provided, further specific details cannot be elaborated.
• 01:00 - 02:30: Appreciation and Event Introduction The chapter titled 'Appreciation and Event Introduction' appears to focus on expressing gratitude and possibly introducing an event. However, the transcript provided is minimal, consisting only of the phrase 'thank you,' which suggests the chapter may involve showing appreciation or concluding a section with thanks. Without additional context, the details of the event or the extent of appreciation cannot be fully determined.
• 02:30 - 04:00: Importance of Cross-examination The chapter titled 'Importance of Cross-examination' delves into the critical role of cross-examination in various fields, particularly in legal settings. It highlights how cross-examination is a tool used to challenge the credibility and truthfulness of a witness's testimony. The chapter might explore techniques employed in cross-examination, the psychological aspects of questioning, and historical examples emphasizing its impact on case outcomes. It underscores the necessity of skilled cross-examination to ensure justice and the uncovering of facts, as well as its influence on decision-making in judicial processes.
• 04:00 - 06:00: Contextual learning In this chapter, the concept of contextual learning is explored. The discussion is led by Mr., who outlines how contextual understanding can enhance the learning process. The chapter elaborates on the importance of context in retaining information and applying knowledge to real-world situations.
• 06:00 - 08:00: Introduction of Advocate Shri Singh Chapter Title: Introduction of Advocate Shri Singh. The chapter begins with an applause, indicating a welcoming or appreciative gesture towards Advocate Shri Singh as he is introduced.
• 08:00 - 10:30: Presentation by Advocate Shri Singh In this chapter titled 'Presentation by Advocate Shri Singh', Advocate Shri Singh gives a presentation to a gathered audience. The chapter begins with the greeting and appreciation words 'thank you everyone'. Detailed content of the presentation is not provided in the transcript.
• 10:30 - 13:00: Courtroom Realities The chapter 'Courtroom Realities' begins with an account of individuals who have had to miss their classes. The focus is on the real-life implications and disruptions caused by the legal system on personal education and routine. The vivid narratives capture the emotional and practical toll of courtroom obligations on everyday life. "Courtroom Realities" not only addresses these personal challenges but also provides a broader commentary on the justice system. It highlights the tension between civic duties and personal commitments, urging readers to reflect on the balance between legal responsibilities and individual freedom.
• 13:00 - 16:00: Facts and Evidence The chapter discusses the importance of events and their role in presenting facts and evidence. It highlights the significance of attending events to gather firsthand information and insights.
• 16:00 - 18:30: Case Theories The chapter titled 'Case Theories' begins with the phrase 'first of all' and delves into the initial steps of forming case theories in the context of a subject matter. It likely discusses the foundational principles and methodologies that underlie case theory development, offering insights into how to approach and structure such theories effectively.
• 18:30 - 21:00: Law and Relevance The chapter titled 'Law and Relevance' delves into the intersecting themes of legal frameworks and their pertinence to contemporary society. It explores how laws are formulated, their impact on various societal sectors, and the evolving nature of legal systems in response to changing cultural and socio-political dynamics. Through expert analysis and case studies, the chapter highlights the necessity of adapting legal structures to meet modern-day needs, ensuring justice, equity, and efficiency. Key discussions include the balance between maintaining order and allowing for innovation, as well as the role of technology in shaping future legal landscapes. This chapter serves as a critical examination of how legal principles can remain relevant and effective in today's fast-paced world.
• 21:00 - 24:00: Examination In-Chief Process The chapter provides an overview of the 'Examination In-Chief Process' in a legal proceeding. It begins by emphasizing the importance of this phase in building a case. The text highlights how witnesses are presented by the party who calls them, establishing facts that support the case. Key strategies and techniques employed during this phase are discussed, such as the framing of questions and the presentation of evidence. The objective is to reinforce credibility and persuade the judge or jury by a coherent presentation of facts. The conclusion reinforces the critical role this process plays in the legal system's pursuit of truth and justice.
• 24:00 - 27:00: Strategy and Execution This chapter explores the critical relationship between strategy and execution in the business world. It delves into how strategic planning is only as effective as its implementation, emphasizing the importance of aligning operational actions with strategic goals. Through a series of examples and case studies, the chapter illustrates common pitfalls in execution such as miscommunication, resource misallocation, and lack of accountability. It offers insights into overcoming these challenges by fostering a culture of agile execution, where strategic objectives are clearly communicated, and teams are empowered to adapt to changes rapidly. The chapter also highlights the crucial role of leadership in setting the vision and ensuring that every team member understands their role in bringing the strategy to fruition.
• 27:00 - 30:00: Communication and Questioning In the chapter titled "Communication and Questioning," the focus is on the techniques and importance of cross-examination. Cross-examination is a critical component of communication strategies, particularly in legal and investigatory settings. It involves the skillful art of questioning someone to either validate the information or find inconsistencies in their statements. This chapter explores various methods, best practices, and the strategic role of cross-examination in gathering and confirming information.
• 30:00 - 33:00: Trial Challenges The chapter 'Trial Challenges' delves into the intricacies of what forms the core essence of a trial, capturing the pivotal elements that define its course and impact.
• 33:00 - 36:00: Preparation for Examination In the chapter titled 'Preparation for Examination', the focus is on the emotional and mental state of the individual as they anticipate facing an examination. The narrative underscores uncertainty and anticipation, likely reflecting on the methods and practices of preparation, the pressures associated with successful outcomes, and the internal dialogues of self-doubt and assurance. Though details are sparse, the available transcript suggests a moment of reflection or contemplation, hinting at the challenges and resilience involved in gearing up for an exam. Further context is needed for a detailed understanding.
• 36:00 - 39:00: Witness Handling In 'Witness Handling', the chapter emphasizes the importance of effective communication and proper handling of witnesses in legal proceedings. It covers techniques for questioning, maintaining witness credibility, and ensuring compliance with legal standards. Key strategies include building rapport with witnesses, understanding the nuances of legal testimony, and employing ethical practices to elicit truthful and accurate information. This chapter serves as a guide for legal professionals to navigate the complexities of witness interaction and to prepare witnesses for testimonies that are clear, concise, and legally sound.
• 39:00 - 42:00: Challenges with Witnesses The chapter titled 'Challenges with Witnesses' delves into the complexities involved in the cross-examination of witnesses. This section likely discusses the art and strategy required to effectively question witnesses, highlighting the difficulties that legal professionals may face in this process. It might explore techniques for uncovering the truth, dealing with hostile witnesses, and the psychological aspects that come into play during cross-examinations.
• 42:00 - 47:00: Importance of Facts This chapter discusses the significance of facts in the application of skills, emphasizing that skills are ineffective when used in isolation without factual support.
• 47:00 - 51:00: Hostile Witnesses The chapter titled 'Hostile Witnesses' operates in a context where the dynamics and interactions are likely scrutinized, particularly focusing on how witnesses, possibly uncooperative or reluctant, contribute to the unfolding narrative or legal proceedings.
• 51:00 - 58:00: Interaction with Audience The chapter delves into the theme of interacting with an audience. It explores the dynamics and strategies involved in effective communication and engagement. The transcript hints at the depth of understanding required by the speaker to truly connect with the audience, emphasizing authenticity and adaptability in delivery.
• 58:00 - 62:00: Closing Remarks The chapter titled 'Closing Remarks' discusses the concept of operations and learning within the context of a trial. It emphasizes understanding processes holistically, recognizing trials as comprehensive entities rather than isolated elements.

Adv. Shri Singh's Take on Examination-in-Chief Transcription

• 00:00 - 00:30
• 00:30 - 01:00 thank you
• 01:00 - 01:30 for coming
• 01:30 - 02:00 Mr
• 02:00 - 02:30 [Applause]
• 02:30 - 03:00 s thank you everyone
• 03:00 - 03:30 who have missed their classes in order
• 03:30 - 04:00 to attend this particular event
• 04:00 - 04:30 first of all
• 04:30 - 05:00 it is
• 05:00 - 05:30 I think it would be an understatement to
• 05:30 - 06:00 say that
• 06:00 - 06:30 cross-examination
• 06:30 - 07:00 forms the heart and soul of a trial
• 07:00 - 07:30 however I feel that it is again
• 07:30 - 08:00 imperative mention
• 08:00 - 08:30 that cross-examination this art and
• 08:30 - 09:00 skill cannot work in isolation
• 09:00 - 09:30 it operates in a context
• 09:30 - 10:00 and whenever we are to grasp this it has
• 10:00 - 10:30 to be operated and has to be learned in a context of a trial as a whole
• 10:30 - 11:00 since I mentioned that cross-examination is an art as well as a skill so it becomes very important to understand that it can be learned and today we have none other than the master of code craft Advocate Shri Singh I request all of you to like have a round Applause of a hand for sir is a brilliant
• 11:00 - 11:30 criminal Advocate who practices in Delhi and is having a roaring practice there few of his leading cases definitely the list is non-exhaustive but they include uh 2J scam case they also include daily excise liquor case and the list goes on and on apart from Sir being a brilliant criminal Advocate I just happened to interact with his intern and he happened to tell me that sir is a great person in
• 11:30 - 12:00 and out he also informed me that sir used to interact with his interns used to have one-on-one conversations who did not just used to talk about the law but also about the marks and the burden that the students are facing with this I would invite Professor aparna Babu George who is our faculty coordinator to felicitate the guest
• 12:00 - 12:30 [Applause] s not taking much time of yours I would now like to invite sir Shri Singh to address the Gathering
• 12:30 - 13:00 [Applause] I'm sorry foreign
• 13:00 - 13:30 thank you very much for that uh introduction it was not not fully deserved um I must correct the record I need no way shape or form am I or do I claim to be the master of the courtroom in fact there's a slide in this presentation dedicated to exactly is the master of the courtroom and we'll come to that
• 13:30 - 14:00 um thank you once again for inviting me to your lovely campus is the first time I've come to your campus and um it's a it's a far cry from the campuses that we're used to seeing and I'm sure that all of you are having a wonderful time here well I have been asked to share some thoughts on examination in Chief and in no uncertain terms I have been told not to get into cross-examination which is actually far more interesting
• 14:00 - 14:30 so I will I will I will play Within the rules and stay in the pecking order and let's let's have a quick discussion on on examination in Chief by a quick show of hands how many of us here have read crpc courses roughly all right that's not bad so
• 14:30 - 15:00 the stage at which examination in Chief becomes relevant in a case as all of you most of you are aware is once the trial commences prior to the trial there is a process of inquiry and prior to the process of inquiry there's a process of Investigation so if I reverse that uh in the and of course this presentation is supposed to be agnostic
• 15:00 - 15:30 as to whether we are dealing with civil law or criminal law because examination in Chief is used in both it part of The Evidence Act it is also something that is used in several arbitrations so insofar as the general principles of examination Chief are concerned they are roughly in our Indian context governed by The Evidence Act so at the but if you were to take the example of a criminal trial something I'm a little more familiar with at the end of the investigation stage
• 15:30 - 16:00 that's pretty much the situation that uh that the investigation and the investigative units the prosecutorial units are in and for those who can't read the caption it says there's so much evidence we should put some aside for a different case right and the job of examination in Chief is to make sense of this room and to present this room this mess
• 16:00 - 16:30 in a manner in which relevant facts are placed in order and are placed in service of facts in issue right so by again by show fans how many of us have read evidence recently considerably fewer already does anyone have this with them or you have computers now right so I'm sure you'll access them
• 16:30 - 17:00 so once the trial has reached its stage where the first witness is to be examined the examination in Chief will almost in almost all cases kick off that particular phase section 137 of The Evidence Act will govern what exactly is examination in Chief
• 17:00 - 17:30 and is defined very simply as the examination of a witness by the party who calls such a witness so in a criminal trial all the witnesses are called for by the prosecution so it is fairly obvious that the prosecution leads examination in Chief and the defense then cross-examines in some cases the prosecution will then have the chance of re-examining the witness in a civil case if there's a suit
• 17:30 - 18:00 and the plaintiff would lead examination in Chief and the defendant would cross-examine the process by which evidence is placed on the judicial record is examination in Chief and cross-examination so let's again take the example of a criminal trial all the evidence that is collected during the course of an investigation
• 18:00 - 18:30 is placed before the concerned magistrate in our context a jurisdictional court and the jurisdictional court will be invited to take cognizance of offenses and to issue summons against the accused once that process is done the accused will appear if the accused is already on bail we will continue to remain on bail else proceedings with respect to bail will continue and copies of whatever documents have
• 18:30 - 19:00 been collected by the investigation which form part of the chart sheet will be placed on record and a copy will be given to the accused once the accused receives a copy of the record the accused will then be invited to Advance arguments on charge once charge is framed the trial begins or rather if stars is framed so the the last point on this Slide the more through which a party asserting a
• 19:00 - 19:30 case places facts on the judicial record so the material that is collected during the course of an investigation the material that is collected or placed or put into service by a plaintiff all that material is simply material and does not become evidence unless it goes through the eyes of all the witnesses that they are citing so there are some fairly self-evident processes that we all follow a witness will come we'll take oath in court
• 19:30 - 20:00 and once the witness takes oath the witness is expected to answer questions is being led through an examination in Chief you just go through exactly what that process entails but after that whatever the witness says as long as the same is relevant that will be taken on record and that record including oral statements that the witness is making and documents that she is relying on all that record together forms evidence
• 20:00 - 20:30 and that evidence is then considered as part of the judicial record subject of course to cross-examination Now The Evidence Act is a fairly simple document to read through so there's a chapter on Witnesses the first provision of that says who can who is competent to testify who can actually be a witness right so you should be of sound mind you should be an adult in some cases child Witnesses are also
• 20:30 - 21:00 allowed to testify their evidence is scrutinized differently by a court but by and large you should not be incompetent mentally incompetent so it is possible for a child to testify it is also possible for an adult who is mentally incompetent component to be declared to be such and not be allowed to testify in several and a large number of you I'm sure will enter the profession as
• 21:00 - 21:30 councils or agents in arbitrations you'll find that the entire process of examination in Chief is in fact reduced to something that you may have heard of as affidavits by way of evidence so instead of taking a witness in real time through the through their own gaze at times an Evidence by way of affidavit is filed and that is also an affidavit so that is also sworn testimony and once
• 21:30 - 22:00 that is put on the court the questions relating to further examination in Chief are normally side step the process is made a lot faster this is a mode that is estewed or that is not used in criminal trials barring a very very small and and stated number of cases where certain types of witnesses can in fact give affidavits by way of evidence those are normally of a formal character Experts of of certain types
• 22:00 - 22:30 there's only something that is documentary in nature that has been brought on record otherwise the special character of criminal trials is such that ah examination in Chief will almost always be done in person yeah so as I mean it's fairly evident and I'm sure all of you are aware the examination in Chief as the process is followed by cross-examination by the
• 22:30 - 23:00 other Council Council appearing for the accused in the cases of criminal matters councils for the defendants in matters such in civil matters or in arbitration matters if and it's a big if if you as the council for the prosecution or as Council for the plaintiff find that there are some elements of your examination in Chief that have in fact been dislodged by the cross-examination done by your opponent
• 23:00 - 23:30 you are with respect to certain situation then we go through those allowed to re-examine your witness right but the scope for re-examination you have to remember is very limited and it is almost always heavily supervised by the court so the court will normally allow you to re-examine on just a few issues if at all in several cases the court May uh May in fact stop may not permit you to re-examine
• 23:30 - 24:00 right so now how do you prepare for an examination in Chief right the the process by which I would commence an examination in Chief would differ widely with that of another lawyer or differ widely with respect to other prosecutors everyone is going to have their own particular way in which they want to proceed
• 24:00 - 24:30 over my few years at court online searches are hugely helpful by the way but apart from those the first thing that you would want to do is set up what I would term and several others would term as a case Theory what is it that you want done in the case
• 24:30 - 25:00 and I would like you to imagine uh if I were to reverse this process if I was to look at a case against a client of mine as a defense counsel VES I have to be ready from day one with whatever is my defense with respect to as many parts of the case as I can understand today which is why you will find if you are reviewing criminal law on criminal
• 25:00 - 25:30 procedure developments over the last few years closely you'll find that there is a trend where in more and more complicated matters lawyers especially on the defense are beseeching the court that please crystallize the case against me before we move to trial don't allow investigation to go on endlessly close that investigation crystallize the case so that I can cross-examine the reason is this both sides you can as
• 25:30 - 26:00 an analogy in a in a criminal trial both sides are trying to place a picture before the court the prosecution has endless time virtually from the date on which they record the offense and they conduct their investigation the charge sheet that is filed by them which is their final report that represents their best possible case
• 26:00 - 26:30 that's the best case they can come up with completely uncontained uncontested right nobody is asking them any questions that is their case that's the absolute Height Apex of the case that's the picture that they are convincing a court that this is the picture that we will end up with after this trial right but this picture is is not fully resolved right so I would imagine I
• 26:30 - 27:00 would ask you to take a look at that picture take a look at it closely and you'll find that it's actually a jigsaw puzzle it's not a picture it has little pieces and each one each piece is represents either a piece of evidence or a witness and each piece has to be individually developed by the prosecution each piece will have to be brought on board through the process of examination in Chief
• 27:00 - 27:30 the prosecution or the plaintiff as the case may be is dominance lightest right that's a fancy way of saying that they are the master of their case they will determine the order in which witnesses will be brought so and that order may be determined on the basis of of a variety of factors in cases with respect to sexual assault
• 27:30 - 28:00 by the time the first witness is ready to be examined in a majority of the cases the accused if arrested will be in custody and will be fighting for bail so the courts will probably say that as a condition to release you I would want the prosecutrix or the victim to be examined first so in that case pw1 prosecution witness public witness depending on who you speak to pw1 will be the victim pw2 will
• 28:00 - 28:30 be a guardian or a parent depending on the kind of case in other cases pw1 in a corruption case may be a sanctioning Authority right in several other cases in a murder case pw1 might be the eyewitness might not be the eyewitness the ayurveda the prosecution may feel that given the fact that bail considerations are going on there is a threat to the prosecution witnesses maybe we'll begin with some
• 28:30 - 29:00 witnesses who are not that relevant right and keep the eyewitnesses in our back pocket for the moment so these are all prosecutorial decisions these are all decisions that are being taken by the prosecution by Council for the prosecution in their capacity as dominance lightest and very rarely will you find that a court and even rarer still the opposite side has any say in which the odd the order in which these particular Witnesses are going to be brought
• 29:00 - 29:30 and for that purpose because of that from day one if I'm a defense lawyer I don't know which part of this puzzle is going to be placed before me first so I have two jobs to fill as the opposite lawyer whether I am a defense lawyer or I am the defendant's lawyer I can play a spoiling game I can prevent my friend
• 29:30 - 30:00 on the other side the prosecution the plaintiff from being able to collect the pieces that he needs right so each time he puts up a puzzle piece I say well that person is incompetent to testify each time he comes up with a sanctioning Authority I can say oh well questions of sanction are Irrelevant in this case right so that piece goes out of the picture it brings an eyewitness and I say well you know this is a stock witness this is a witness that you
• 30:00 - 30:30 pulled out 42 times over the last three years so I'm challenging this Witness now whether or not that prevents the witness to be called that certainly puts a dent in their case right I am challenging aspects of whatever that witness has to say right whether it is in on grounds of hearsay on grounds there is an email being brought I'm saying look I'm sure you've heard of 65b of The Evidence Act Right that there's no 65b certification this is a signed
• 30:30 - 31:00 document of the witness during the course of Investigation hit by 162. the someone is trying to produce a disclosure statement is a disclosure that is hit by 25 and 26 of The Evidence Act there is no in fact recovery under Section 27. so I am at one level playing a spoiler whatever that guy is putting up I am tearing down but I also have a secondary role and in a lot of the special offenses that we are now increasingly seeing especially offenses like pmla under
• 31:00 - 31:30 investigations done by the sfio by in ndps matters there is a an Express burden placed on the pro on the defense to actually make out a defense so apart from destroying or defacing or damaging the case or the picture that the prosecution is putting up I also have to put my own picture on the judicial record and that has to start from day one right from my by my
• 31:30 - 32:00 cross examination so either side has to come up with their own case Theory and the only way in which so the only way in which I can put forward my version of events is if I know what I want my version to look like at the end of it right so and these are fairly abstract Concepts but they're fairly simple to understand with examples if I'm accused of committing a murder I have to decide front on well did I actually commit the
• 32:00 - 32:30 ACT what did my did my client commit the ACT in which case if he didn't commit the ACT well then there is a defensive Alibi that I was not there if I find that yes I did strike a blow there must have been reasons for why I did that the grave and sudden provocation right I was exercising my right to private defense so I have to have a reasonable sense of what my defense is and what my case theory is and the
• 32:30 - 33:00 reason I have digressed into what the defense needs to do is that's the exact thing that the prosecution needs to do but the prosecution has been doing that from the day the fir or the case has been instituted and the plaintiff has been doing that from the day on which they recognize that this cause of action is something that we have to litigate so they have been building their case theories right now your case theory is Tethered to reality because the case Theory could be anything right
• 33:00 - 33:30 right my case Theory could be that the man on the moon has come and murdered someone it's a viable case Theory there's nothing wrong with it except Section 3 will say of The Evidence Act says look all case theories are valid subject to the fact that they are they contain relevant facts and facts are relevant in relation to faction issue right you've you all heard these terms and I'll invite you in fact just to see
• 33:30 - 34:00 a few definitions of terms in the Evidence Act Right so if you can drop your evidence Acts those of you who can any if you can turn to section three the interpretation clause
• 34:00 - 34:30 right so it has defined the term fact and fact for the benefit of those who don't have the ACT means and includes anything state of things or relation of things capable of being perceived by the senses and secondly any mental condition of which any person is conscious
• 34:30 - 35:00 now these are very very important phrases that have been put together in a particular way and as you examine more and more cases in the course of your studies in the course of your practice whether it is civil practice a criminal practice whether it is practice in arbitration or whether you're looking at you know events as a council looking into a trial so you're doing a due diligence for one
• 35:00 - 35:30 of the the large firms you come across a case you now have to determine as counsel for on behalf of a company what is the relevance of facts that have been established during the course of a trial where the company for whom you are performing a due diligence has been involved right so whether or not a fact is a fact in is in fact a fact is explained to you by this particular definition
• 35:30 - 36:00 and the role of a witness is circumscribed by Clause one so Clause 1 says anything state of things or relation of things which is fairly obvious capable of being perceived by the senses that tethers it to reality right so these are this is a reference to our five senses right so if I can perceive it I can say that yes the day was hot or cold
• 36:00 - 36:30 I can I can say that I saw this person I heard this person I tasted it it was off right that's why that basically Donahue versus Stevenson which you all have studied right so those are facts whether or not I want to get into a metaphysical discussion on whether or not you know there is one God there are ten Gods there are 15 Gods there's a man on the Moon Court says look you can engage in those discussions but outside
• 36:30 - 37:00 of whether or not a thing is a fact for the purposes of resolving disputes The Evidence Act says this is what I believe is a fact right so as long as we are circumscribed we have subconscribed ourselves and our acts by The Evidence Act this is what we have to prove or this is what we have to disprove the next phrase that is defined is the phrase relevant
• 37:00 - 37:30 so one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this act relating to the relevancy of facts so this acts as I will now also tell you in what way are you going to be able to connect two facts together I will tell you what is a relevant fact so relevant facts relevancy of facts is determined by The Evidence Act
• 37:30 - 38:00 and by no other way we do not know of another way in a courtroom to declare whether something is a relevant fact or not so whether the day is was hot or cold may or may not be relevant to a case right so if it's a case of forgery of a document and it is found on a Monday in a bank whether that Monday was in the winter or in the summer has absolutely nothing to do with the fact that this document has
• 38:00 - 38:30 been recovered from a bank you can argue well it the fact that it was hot or cold is something that I'm perceiving with my five senses but the answer to that is it's not relevant to this case there are a million facts but only those that are relevant will be taken on record or will be discussed and the last is the fact in issue the expression facts and issue means and includes any fact from which either by itself or in connection with other facts the existence non-existence nature or
• 38:30 - 39:00 extent of any right liability or disability asserted or denied in any suit or proceeding necessarily follows so this now tethers relevant facts so facts relevant facts and facts and issue faction issue relate to the case at hand what generates liability right what generates a disability what generates a right we are looking at only those facts that are Tethered to this statement of fact
• 39:00 - 39:30 or law that is the subject matter of a case generating either rights disabilities or liabilities you can take a look at what is evidence evidence means and includes all statements which the court permits or requires to be made before it by Witnesses in relation to matters of fact under inquiry such statements are called oral evidence all documents including
• 39:30 - 40:00 electronic records produced for the inspection of the Court such documents are called documentary evidence right so evidence is divided neatly into two parts oral evidence and documentary evidence oral evidences with respect to Witnesses but please mark all statements which the court permits right so while the council conducting examination in Chief is the Dominus lightest not the council but the the prosecution as a whole
• 40:00 - 40:30 the master of the Court Remains the court who determines what is relevant and what is not relevant it's the court and this definition is actuated or is effectualized by section 136 of The Evidence Act we'll go through that right this will be ah an exciting hour the next three terms
• 40:30 - 41:00 are proved disproved and not proved and this is where the knob of the issue with respect to examination in Chief and cross-examination and re-examination lies a fact can be at the end of a trial in three forms a fact asserted either that fact is proved
• 41:00 - 41:30 or that fact is disproved disproved is that it doesn't exist it can also be neither approved nor disproved and it can be not proved so a fact can have three particular ways in which it exists at the end of a trial and this is relevant from the point of view of what was the burden of proof
• 41:30 - 42:00 on the body and what was the standard of proof on the party so we are all roughly familiar that in a criminal trial burden of proof lies on the prosecution so that that the collection of pieces that the prosecution has painstakingly put together during the course of an investigation that collection of pieces has to be proved
• 42:00 - 42:30 by the prosecution and we also use another term Beyond Reasonable Doubt right Beyond Reasonable Doubt refers to the standard of proof so these are two competing at times competing but these are two concepts that go hand in hand and you'll find when you do a slightly more granular look at a at the stages of a trial the burden of proof and standard of
• 42:30 - 43:00 proof doesn't remain consistent or doesn't remain consistently on one party and of a certain level and by way of example if tomorrow a case comes up where it is found that ah a senior member of say the Armed Forces is alleged to have been feeding defense
• 43:00 - 43:30 secrets to a perceived enemy of our country the burden of proving that case is certainly on the prosecution but if he applies for bail on the first day the burden on the prosecution is almost always to the extent of reading out their case that's about it
• 43:30 - 44:00 that person will then have to show has an extraordinary burden as an accused to demonstrate that he or she should be granted the benefit of bail in some cases say it's a pmla offense and instead of an armed forces officer this is a senior banking officer of a large Bank and there's a case with respect to money laundering
• 44:00 - 44:30 the burden is in fact reversed by the statute in some readings of of the law that it is that particular individual who will have to demonstrate that they have in fact not committed the offense which is an extraordinary burden even to discharge even prior to the prosecution having completed their investigation so before they have crystallized their case if I want bail I have to show there's a reasonable chance that I am
• 44:30 - 45:00 not guilty right it's almost an impossible burden but the point is that this the question of burden of proof and standard of proof will keep on changing depending on the type of matter you're doing if you are doing a suit the burden of proof the standard of proof the standard of proof changes If instead of a suit you are doing an adjudication say an income tax matter the standard of proof will change again if you are doing an arbitration the standard of proof changes again
• 45:00 - 45:30 so you have different standards you have preponderance of probability of reasonable tests and you have of course Beyond Reasonable Doubt these three terms prove disproved and not proved they govern the status of facts when you're looking at these particular forms in which facts end up in so my exercise in examination in Chief is to prove my
• 45:30 - 46:00 facts I want these facts to be proved to be Beyond Reasonable Doubt my opponent is trying both things to disprove some of the facts and to say that well some of the facts that Mr Singh is bringing have in fact not been proved and some have been disproved and when you weigh up the various columns at the end of the trial that is when the court will
• 46:00 - 46:30 finally ultimately say that look the burden of proof was on the prosecution these are the facts that have improved these are the facts that have been not proved and in fact these are the facts that have been disproved and will then hopefully give a result in our lifetimes right so to conclude this particular slide when you are preparing for your examination in Chief you need to have a pretty good idea
• 46:30 - 47:00 about where exactly your particular case is headed how does one witness roughly tie into another and you have to therefore have your case themes lined up right right now I had done my masters in arbitration a few
• 47:00 - 47:30 years ago I was attending one of the various workshops in that and there was in fact a workshop on examination in Chief and cross-examination and I found this sentence in my reading materials which is well prepared Council will prepare a prepare a persuasive Theory and theme which should resonate with the presiding officer yeah I thought that's pretty cute right it was It was a a European Professor who was was
• 47:30 - 48:00 giving this 73 year old man I said it's cute that they think that my theory at the beginning of an examination in Chief is going to resonate with the presiding officer who ultimately decides my case right I started off as a junior Council in some matter in 2007. we are still at the stage of charge right so I mean you can take this for what it is but what I derived from this is the
• 48:00 - 48:30 importance of having a case Theory because if you approach a witness whether cross-examination or examination in Chief only from the point of view of What that particular witness has come to say in the absence of any context you will almost always either not derive the full benefit that you can from that Witness and worse you will probably damage your case because you will ask questions that are in fact intruding on say the questions
• 48:30 - 49:00 that you would probably like to ask another Witness as someone who is going to present ah a witness to the court is going to ask questions he's going to elicit answers you are also under an obligation to the side that you are representing to ensure that you are able to anticipate
• 49:00 - 49:30 what questions are going to be asked by the other side both on issues of admissibility and on issues of Merit by that I mean if I am asking a witness to depose as to a letter I know that this witness is going to come and say that yes I have produced this letter I have written this letter the investigating agency asked me for this I have presented it to them this is
• 49:30 - 50:00 a seizure memo that shows that I have in fact taken this I have I have submitted this letter if the letter is a photocopy is a copy there will be admissibility issues it is in fact secondary evidence it's not primary evidence so I should anticipate that so I must be able to explain to the court even before the opposition perhaps as to why is it that a witness is coming and
• 50:00 - 50:30 exhibiting a document that is a copy I cannot rely on the fact that perhaps the court will ignore it because I'm otherwise examining 500 documents tomorrow this is just one copy maybe it will just you know in a pattern you just slip in and I can't rely on the fact that perhaps the opposition will not look at it because ultimately when the matter has to be examined whether or not something is admissible
• 50:30 - 51:00 on day one of a trial may not be relevant to the sum total of the matter at the final stage when the court is deciding yes well this letter the original copy was in fact lying at X place you produced a copy copy is inadmissible and perhaps an important component of your case Theory goes out of the window and the last is Valley self-evident is whether you are in a
• 51:00 - 51:30 Civil Trial or in a criminal trial it's not the law that will renew the matter in a trial it it is the fact or collection of facts and facts we'll see you through poor law so if you have a situation where there is adverse law against you if you have compelling facts because we are a common log jurisdiction right so
• 51:30 - 52:00 I'm sure all of you is also studying your equity and you're familiar with our constitutional courts having passed under article 226 and article 32 read jurisdiction the power of red jurisdiction in common law countries when compared to their counterparts in civil law countries which some of you will be doing in your senior courses in comparative law is such that
• 52:00 - 52:30 civil law countries will find their hands tied in order to cure adverse facts in the face of adverse law by that I mean so I'll give you an example we were before a court recently in a matter where a bank had complained that a large amount of money had been defalcated by a set of three individuals a husband a wife and the husband's father
• 52:30 - 53:00 and they had asked for their passports to be impounded and in fact the passports had been impounded now unfortunately for the Man's father who was 92 years old his passport was impounded when he was in Canada right so he has a 92 year old man whose passport has been impounded he can't now travel anywhere his only wish was to come back to India so he can die in peace and of course medical costs even in
• 53:00 - 53:30 Canada were very high so he said I want to come back to the country he can't come back to the country because we've impounded his passport now whether or not the power existed to impound the passport whether it should have been impounded it should not have been impounded a lot lots of questions there but there is an urgency of a 92 year old man with ill health wanting to return to the country the high court has the ability to cut through all of that in their
• 53:30 - 54:00 jurisdiction and say that these facts are so compelling that in spite of adverse regulatory um environment the adverse regulatory environment that your particular matter is now currently sitting in I will direct the union government to please issue him travel papers immediately so that he can come back that's in the high court right right but that is also true in court so first instance whether
• 54:00 - 54:30 you're looking at an arbitration whether you're looking at a criminal trial or a Civil Trial and therefore the burden of ensuring that good facts are placed on record is on dominance lighters is on the person conducting examination in Chief so if you find as the prosecutor who's opening the paper for the first time the day before the trial that there are in fact elements of this
• 54:30 - 55:00 particular witness the facts relating to this particular witness that have not been brought on record you have the ability and the court has the expensive ability right through Section 91 crpc and under the the CPC to bring further facts to bring further material on record so the reason why examination in Chief or
• 55:00 - 55:30 this particular process is important is that this lays the groundwork for the entire case to go on whether it is before this court that we are dealing with an appellate court revisional court or any of the Constitutional courts all right so now we move and we've we've now got our witness in front of us witness has been
• 55:30 - 56:00 given oath a common difference between examination in Chief and cross-examination that we're all taught and we all know is that you can't ask leading questions in examination in Chief whereas in Cross examination you can also ask leading questions if you were to ask a any defense counsel of a certain age anyone over 10 or 15 years of practice who's done a whole bunch of examine
• 56:00 - 56:30 cross-examinations to lead a witness into chief a vast majority of them will find it's really hard it's not as easy as one would think at times cross-examining a witness if you are prepared is a lot easier than leading a witness into chief the reason is that because leading questions are bad right everyone here understands what is the leading
• 56:30 - 57:00 question a question whose answer is yes or no right so where I suggest the answer in the question right so if I ask this gentleman here is it not correct that you are wearing a lovely white T-shirt he has to either say yes or no right but if I were to ask him that describe the clothes that you were wearing day before yesterday that is a different that is an open question right and so there is this understanding of between especially in in civil
• 57:00 - 57:30 matters right where where limited Chiefs are permitted that the idea of examining a witness is to Showcase that witness and to Showcase what is it that that witness is bringing to the particular record it is not a place where the lawyer is showcasing himself or herself and and
• 57:30 - 58:00 this is distinct from grandstanding right or playing to the galleries that's not the that's not the phraseology here if you want a witness to say a particular thing then you will start closing the question right so if I want again if I may use your my friend here if I want to ask him what was it that you are wearing day of yesterday evening right so I'm now narrowing the scope of where I'm I'm directing him in a particular place
• 58:00 - 58:30 the fact that I have asked this question also begs the second question what is it about day before yesterday evening that is so important right so obviously that is part of my case Theory right so you you can understand now from that question where is it that I am trying to lead this Witness or take him lead is probably a bad word in this country but if I were to ask open questions assuming my friend and I have no reason to disagree is rational and understands
• 58:30 - 59:00 why he's been called he will immediately turn to matters at hand but when a person is sitting there in the witness box for the first time your your dealing with a matter say that happened five years ago this person has been summoned he's sitting in court you know you can't lead the witness how do you start Crossing how do I start your examination in Chief right so you will start by can you state your name
• 59:00 - 59:30 can you state where you are and buying those introductory questions so there The Evidence Act gives you a helping hand fine so if you again once again open your Evidence Act you will find and if any of you found the answer before me feel free to pop up if you look at the second part of section 142
• 59:30 - 60:00 is follows from 141 so 141 deals with what is a leading question any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question 142 says when they must not be asked leading questions must not if objected to by the adverse party be asked in an examination in Chief or in re-examination except with the permission of the Court corollary to that is you can ask them in cross-examination and then the court shall permit leading
• 60:00 - 60:30 questions as to matters which are introductory or Undisputed or which have in its opinion been already sufficiently proved right so instead of going through a person's life for 52 years before he you arrive at the exact date on which uh you know you are dealing with that particular Witnesses recollection you can straight away come to that day and for that purpose if it is introductory in nature you can lead that particular witness right the manner in which you would do so and and to be fair
• 60:30 - 61:00 these are Concepts that are better workshopped with all of you in a large group it may not be possible but if you were to make this an exercise I mean I'm sure you have lives but in case you don't if you want to do this exercise you can with a friend just try and ask someone simple questions with respect to their background right where they are from
• 61:00 - 61:30 where did they study whether they have siblings so if you are looking at a general background how do you formulate those questions you can do the mental exercise in case you don't have friends I would have probably have to do that right and the idea is not so much as to the manner in which you're asking those questions it is anticipating answers right what kind of answer will I get if I ask a question one way versus another right
• 61:30 - 62:00 so you will find younger or less experienced practitioners will be eager both in examination in Chief and in cross-examination to get the witness to agree to a conclusion right a conclusion is
• 62:00 - 62:30 that say you are cross examining or you are examining an eyewitness to a case to a murder my objective as the prosecutor would be to show that this is a person who is otherwise independent who was either a chance witness was there because he just he or she just happened to be there or was a witness who was part of a group so he's an interested party but was there nonetheless still independent
• 62:30 - 63:00 has reasonably good eyesight right you don't want at the end of the whole thing to find out that he is 90 blind so he has reasonable good eyesight you have all this it was day time it was the place was well late and the person then describes the describes whatever has happened and moves away from the stand waiting to be cross-examped now let's assume for a moment that the case theory of the Cross
• 63:00 - 63:30 Examiner is that this eyewitness was too far away to have discerned the identity of an accused say he says he feels that based on the side plans based on the kinds of the the layout of the place and the statements of other persons he was near the car she was near the parking lot my friend the cross-examiner estimates that it is 200 meters away so the case theory is that this
• 63:30 - 64:00 eyewitness could not have in fact seen this individually depending on how nuanced this cross-examiner is you will want to create a body of questions first ensuring that the witness agrees with your positioning of that witness on that particular day right so if the witness says that well you know it's correct that the event the incident took place near the Starbucks I was near the parking lot yes the parking
• 64:00 - 64:30 lot is quite large I do recall there was a large hoarding at the corner of the uh of the parking lot I was next to the hoarding not the other not the movie hoarding but in fact the advertising hoarding and so you're pushing the person you are establishing where that particular person is at which point of time depending on the uh courage of that particular cross-examiner you may end with a suggestion that look you were too far to actually see what happened and
• 64:30 - 65:00 a less successful approach to this Witness would be to start by saying well look you were too far away to see anything in which case the witness immediately also appreciates what is going to be the line of questioning and will start fighting back right we'll say No No in fact I was very close I could see everything right at which point of time you've dug
• 65:00 - 65:30 your client a few feet deeper as a cross Examiner these same issue arises in examinations in Chief the purpose is again the purpose as we dealt with in the first few slides is to place facts on record to place relevant facts not to place arguments we don't need the law we don't need how these particular elements stitched together that is the purpose of argument there is
• 65:30 - 66:00 a special stage for that final arguments where all this will be stitched together where the court will determine whether or not side B is one so when you are asking questions you have to be very careful that the questions that you are asking are directed questions you are asking them for a particular purpose they have to be forensic they have to be they have to be very direct but they should not be argumentative or not be an argument
• 66:00 - 66:30 right and well conclusions this is conclusions with respect to a witness concluding certain things right so if you get a witness to come and say that yes this document was in my opinion this document was forged who are you where I'm the janitor right nobody cares right nobody cares what you think all we were asking you was was the office open that day yes or no right
• 66:30 - 67:00 that that's the limited purpose that you've been called for if you have an answer for that great if you don't your opinion frankly doesn't matter right so this is what happens if you start asking conclusions or you start directing the witness towards conclusions as a lawyer for any of the sides you have no idea
• 67:00 - 67:30 what a particular witness is going to say whether a witness is actually going to say what the witness is supposed to say on the particular day Witnesses are terrible animals right they can agree with you they can disagree with you they don't know whether they are being examined in Chief some people in Black was just yelling at them something is being recorded in accord right so these are these are not perfect conditions in which you will be operating
• 67:30 - 68:00 so if you understand the reason why you are asking that person questions you are then in author you you have control over the witness if you have control over the witness facts will come on board if facts will come on board you have a greater chance of success and if you ah if you do it the other way around you will in fact have um an unpleasant time right so for those who can't read
• 68:00 - 68:30 this is um who can't read this I'm sure all of you can read it so he's big alright but he's definitely a wolf and he's definitely evolved but it will be up to a jury to decide whether or not he is bad right so whether he's a bad wolf I mean it's for the jury in their case in our case it's for a court to decide so you don't want Witnesses telling you Beyond a point even even as the prosecutors how bad a person was or how
• 68:30 - 69:00 bad a particular fact is you want the fact and you will determine in your prosecutorial or your ability as the lawyer for the plaintiff as to the relative weight of that particular fact all right now the these are fairly self-evident self-evident things but they're very hard to do in practice
• 69:00 - 69:30 right so if you do the workshop that at any point of time in any of your trial advocacy courses using plain words in simple language is actually very difficult to do the reason it's difficult in many of the trials that we are currently doing is that at times we don't understand our own cases the cases are very very complex right so
• 69:30 - 70:00 when we are younger we sit at night we prepare these long lists of questions I'm sure all of you have done internships with with lawyers you worked during cross-examination briefs and you know Bunches of lawyers have been dictating questions and you end up with 450 questions for one witness and you power through those questions and this often happens in arbitrations where regardless of the answer you're moving on to your next question and these are long questions these are a
• 70:00 - 70:30 lot of these Witnesses at times are technical Witnesses so you have to ask them questions about you know our coal plant Works our nuclear plant Works how the Commonwealth Games took place how he went in that took place in the Delhi liquor matter although the trial is not started you have questions with respect to how the liquor industry works right these are all they are fascinating questions but if I am asking an area expert a question
• 70:30 - 71:00 I have to be as the lawyer be very careful as to what answer I'm going to elicit because I have read like most of you have done your exam preps I know only enough to pass right I do not know anything beyond the subject so if this witness is in in hard crime cases this happens with the doctor right so most doctors are kind to lawyers but the moment the doctor wants to you know pay back in kind for having been called at two o'clock in the summer the doctor can just go crazy right and say that
• 71:00 - 71:30 well you know yeah his trachea can he he could have been hurt on his trachea with a straw right and you have you have no way the doctor the court is going to say well that's their doctor's advice right that's that's the doctor's opinion so if you lose control of the witness and you will almost always lose control of the witness if you are asking long-winded questions which require further Corrections and you are explaining the question to the court you're fighting with the prosecutor you're junior screaming in your ear all
• 71:30 - 72:00 sorts of crazy things are happening and you end up with a 450 word question that question is going to damage you it's it is it is impossible for that question to help you whether you are a prosecutor or whether you are in fact across Examiner so I mean thumb rules if you have three questions three facts to ask ask them in three questions right ask small questions take the time get your facts in order and you'll listen to your Witness at times as lawyers
• 72:00 - 72:30 we have our own agendas in courts we need to get our work done the actual answer that the witness is giving becomes secondary because once I have asked my question I am not looking down at my list now what's the next question and someone else is recording what that witness has to say but if you listen to your witness carefully he or she may actually negate your next question or you may actually have to ask a different question
• 72:30 - 73:00 and in the context of doing trials in and around Delhi you must be specially aware there was a strike yesterday in ghaziabad and my junior almost got beaten up right so so this is what you can't do we've gone over much of this no leading questions no hearsay evidence so here say we are all roughly aware what hears the
• 73:00 - 73:30 evidence is the exception of course is opinion based evidence if I'm asking a forensic expert to come in I want his or her opinion but again if I'm asking a police officer who has conducted a search I don't want that of that police officer's opinion on what the offender may or may not have been doing prior to the search if that police officer was not there section 151 152 The Fairly self-evident don't annoy the witness and that
• 73:30 - 74:00 surprisingly applies even in examination in Chief don't do this to your own witness right it's so the next section is on loopholes right and the reason I'm pointing to loopholes is what happens if on the day of the examination in Chief you suddenly
• 74:00 - 74:30 realize that horrible error has been made the evidence that is being brought by a particular witness is dependent on the evidence that was to be brought by another witness but you have made an error in the sequence of witnesses you have um by way of an example you have called for the ballistics expert without actually proving the ballistics report right so this is an expert who
• 74:30 - 75:00 doesn't prove the report but who's done a part of say the ballistics examination now how do you ensure that this day is not wasted right the quote the answer is that you go back to the court the admissibility of evidence is determined by the court the court will decide on the day and
• 75:00 - 75:30 these decisions are of course subject to challenge but in the context of that particular court the judge will decide what is admissible and what is not and section 136 of The Evidence Act is the means through which this is actuated and 136 is a very peculiar provision because it also permits in in language that you have to read twice to understand that if two witnesses are in fact
• 75:30 - 76:00 required to produce material sequentially on the undertaking of a lawyer or undertaking of a council it can reverse the sequence provided that you say that yes I will also produce witness number one shortly right so these are tools that prosecutors or plaintiffs can use in the course of their examination in Chief we had a
• 76:00 - 76:30 two two basic provisions on this the power of the court to ask Witnesses so whether this this exists whether a court is examination examining a witness is being examined in Chief or being cross-examined the judge has an overriding power to ask any witness any question at any point of time the judge can also determine the order of the witness so in several cases Suppose there are there is a
• 76:30 - 77:00 an incident of which there are four eyewitnesses if I examine one eyewitness today and that eyewitness is cross-examined I have the notional ability to ensure that the second eyewitness covers whatever errors have been made by the first eyewitness right so on day two my eyewitness will cover the Lucky Nail of the first witness and so on and so forth so the court in terms of ah 231 242
• 77:00 - 77:30 depending on which kind of trial it is the court has the power to tell a particular prosecutor these this is of course in the context of a criminal trial that you will examine in Chief all of them first and then they'll be cross-examined at one go right so although the prosecutor is Dominus light is has or the and the plaintiff's lawyers dominance light is the court will also have an overriding power in
• 77:30 - 78:00 determining the order of witnesses right right so now I assure you we are coming to the end and this is about as hostile a witness can get the caption reads these are all children the witness will confine his knock knock answers to who's there right so sometimes you want a witness to just say
• 78:00 - 78:30 what the witness is supposed to say right and you really want a judge to say this that all this guy is asking you is what color is your T-shirt right nobody wants to know how many Tick Tock videos you have or you know which college you go to how many motorbikes you have not one person is I'm sure there are many people who are interested but not in this trial right so just confine your answers to this have any of you seen my cousin Vinnie as
• 78:30 - 79:00 a movie no how many of you done crpc none of you have seen my cousin Vinnie you must see that movie right that movie was part of our required viewing when we were in college there was a special screening of that movie where a professor said that this is actually far easier if you just watch this movie right it's just easier for me to then explain parts of the crpc by
• 79:00 - 79:30 just referring to the movie the next day right so there's a scene in that particular movie on hostile Witnesses it will be lost in all of you it was a great joke though for the record right now you've all heard what is a hostile witness right this is a creature that comes to court and then deposes against the party that has called that witness right so I have an eyewitness who come who has seen
• 79:30 - 80:00 someone getting murdered in a parking lot who then comes to court and says I didn't see anything it was too dark I'm blind I was not there I am not even this person right so now there are two ways this can go this could be a person who is telling the truth now or this could be a person who was telling the truth earlier we have a principle which is there at the end
• 80:00 - 80:30 fals Us in Uno falses in omnibus and like all Latin maxims we don't follow it right it means if you're Falls in one you're false in all so our Supreme Court has said that this particular Maxim this will come in almost every case only to be noticed and discarded right I don't know what anonymity we have with this particular if we don't follow I don't know why we keep why we keep relying on it but you will find it in
• 80:30 - 81:00 2023 judgments of the Supreme Court we don't follow this and from 1960 onwards we've not been following this we say that merely because a witness has made an incorrect statement does not mean the rest of our testimony is also to be discarded right so there are that's that's generally the gist of it so we are in a position so this is this is what really means when we say this is what is meant by when we say we are in a common law country we
• 81:00 - 81:30 great power is given to trial courts in the weighing of the the evidence that is collected the weightage of that of that evidence so we will use terms of we are able to separate the Grain and the shaft right so the shaft being the LIE grain being the truth so with that ability the mere fact that a witness has come to court and has now said that whatever you
• 81:30 - 82:00 Mr prosecutor are saying I do not agree with this is not what I have said in my 161 statement during the course of an in my investigation that by itself is not fatal either to the case or the prosecution because there may be other Witnesses it is not even fatal to the case of the prosecution vis-a-vis that particular Witness because 154 of The Evidence Act says that you can cross-examine this Fitness you as in you the person who has brought this Witness
• 82:00 - 82:30 so I will initiate a process by declaring the witness hostile I'll say that look this witness is now changing his stand from what he has told us during the course of Investigation I request permission to cross-examine the court will consider and will most likely grant that permission and then I get to uh lead that Witness to his previous recorded statement in terms of 161 so section 154 of The Evidence Act you will read with Section 161. those of you have done your crpc
• 82:30 - 83:00 courses recently okay this is a great opportunity to revisit the sildar Singh no that enjoyable judgment on what is and what isn't a 161 statement and so this is an example of of how a court would deal with the evidence of hostile witness the evidence of a prosecution witness cannot be rejected in total merely because the prosecution chose to treat him as hostile and cross-examined him the evidence of such Witnesses cannot be treated as he faced
• 83:00 - 83:30 or washed off the Record altogether but the same can be accepted to the extent their version is found to be Dependable on a careful scrutiny thereof right so again this means that the quote says depending on the quality of the other facts that you have we will then read the testimony of that hostile witness in the context of those facts so if there's other material to suggest that what this witness is saying is in fact incorrect we'll go by that it is possible that a witness is hostile only on a particular
• 83:30 - 84:00 fact and not on others right and that's where we end and that's
• 84:00 - 84:30 yeah yeah yes please thank you so much sir for such a wonderful conversation um people who have questions can ask right now anything
• 84:30 - 85:00 I have one question if I may so first of all thank you so much secondly I wanted to know your experience with respect to examination and chief like how has your experience been over your large Journey see most of the matters that I've done are as a defense counsel and to be honest um in matters where the examination Chief is going to take very long we mostly are not present for the examination in Chiefs right so we'll mostly leave a
• 85:00 - 85:30 junior behind right that's normally what we do but as uh as we are growing in experience within depression we are finding that being present during examination in Chief is actually very useful if you can actually do it the tragedy of our particular way of doing trials is that and there's more a criticism of us than of anyone else we're not able to
• 85:30 - 86:00 give the kind of time and space that is required to do one of these trials so if you were to compare and I'm sure a lot of you have already done so and on in the future will in the near future will do so if you were to compare how we do our trials versus we as and we in India or even in Delhi do our trials compared to trials that are done in any other part of the world whether it is in Europe whether it is in Australia it is in the UK or the us or
• 86:00 - 86:30 in any of the other Continental countries you will find that the amount of time that is dedicated to each trial is far more far in excess of the kind of time that we are able to dedicate to our trials over here the number of trials that we do are ridiculous in in a year in a day right the number of Trials I'm expected to uh to attend uh can be four or five trials in a day where each day something small is happening and because we have this very
• 86:30 - 87:00 um differentiated way of doing trials right we don't just start on one day and end a month from now right we all I'm sure many of you followed the Johnny Depp and Amber Heard right in that particular you're seeing that that is a trial that is going on on a day-to-day basis you are able to because it was being live streamed you know as a lot of us as trial lawyers here were looking at the manner in which they were doing their cross-examinations it's
• 87:00 - 87:30 interesting because a lot of the principles are the same if you go back and listen to any of the examination in Chief you'll find a lot of these principles are being followed uh by by those councils but they are able to they have a system where they're going to do that particular trial in the three or four weeks that they did it and then they end up in a result for various structural reasons we don't do our trials like that as a result of which our trials get stretched over time but my experience in in examination in Chief is that if councils if as a
• 87:30 - 88:00 defense counselor you're paying attention there is a tremendous amount that can be achieved by just paying attention to what the ex what the prosecutor is doing what the prosecutor is is bringing on the record what the prosecutor is keeping off the Record because we will do our own assessments the day prior right that this is what we think is going to come on record we'll suddenly find that half a dozen documents are not coming on record so if you are ready with your case
• 88:00 - 88:30 theory on the opposite side examination in Chief is a great way to prepare for your own cross-examination right to your cross-examination gets Limited so my experience otherwise is generally neutral it's not a particularly exciting event but yeah thank you anyone else yeah oh firstly thank you so much for the lecture it was like uh pretty insightful I had one question uh we know the state
• 88:30 - 89:00 of under trials in India right and how many of them uh there are so we learned while we were discussing in closet by the time the whole case comes to the stage of child right it has been years so in that case obviously the defense obviously gains gains an advantage because the Witnesses are not really clear on the facts of the case because it has been so long since the whole situation happened so in those circumstances what are some things that the examination in Chief uh I mean what is what are some things the prosecution can keep in mind to like make sure that
• 89:00 - 89:30 you know the witness ceremony is still uh kind of like important and not like just disregarded due to the positive time so so that that's a great question right there's one matter in fact that that we are arguing in the in the Supreme Court where the where I'm appearing for a defendant for an accused the offense took place in 1981 right the conviction was in 1984. the high court of the concerned State
• 89:30 - 90:00 took 33 years to decide the appeal in 2017 and now we are arguing whether or not that person should you know spend life imprisonment or not and that so you're absolutely right so I mean there of course the trial took place in three years within the incident there are other trials that have taken place uh you know far removed from the incident in term that is really where uh the evidence act itself provides uh in terms of section 33 or 34 what
• 90:00 - 90:30 kinds of statements of persons who have deceased can be used where can you use secondary evidence where primary evidence is not available and you as a prosecutor then you have to be a little more creative right with respect to your own case you have the ability to add new Witnesses you have the ability to call for fresh records the advantage that is there that that
• 90:30 - 91:00 that you would imagine is there to the defense is not so in every case because although theoretically as a defense Council on behalf of my client I have the ability to call for defense evidence but the vast majority of cases are decided on the basis of prosecution evidence and the cross-examination that is done there so if those Witnesses are not available to me as a defense counsel I am equally at a disadvantage
• 91:00 - 91:30 if I have a mandate if I have a case theory that I have to prove whether it is to a preponderance of probability is not to Beyond Reasonable Doubt but if I want to assert a fact and that person is in fact deceased then I have nowhere to project that fact I can't project that fact onto the trial court recording he's not there for me to project it through him so it cuts both ways but you're absolutely right it cuts I mean it it prejudices the prosecution far more then it will Prejudice the accused
• 91:30 - 92:00 thanks a lot for the session uh I have one question um when we are conducting examination in Chief and we're presenting the witnesses to what extent uh does the council or the lawyer speak to the witness beforehand like is there any tutoring that takes place or is
• 92:00 - 92:30 um the witness completely alien to the um lawyer beforehand again that's a great question there are two parts of that question if again I'll I'll bring you in for say it is a a civil matter in a civil matter the plaintiffs witnesses presumably most of them are aware of the plaintiff's case right so to the extent that they are aware of
• 92:30 - 93:00 the case I would assume that they are aware of elements of their case say in a civil matter I also want to call for bank records right so that particular Bank employee that comes may be alien to the facts of the case itself but that examination in Chief is limited to only the record that that person is bringing you will all go through your ethics course sooner or later in the course of that you'll find that
• 93:00 - 93:30 you are not supposed to be tutoring Witnesses so if you're asking me whether it happens I'm sure it does but it's not meant to happen it's certainly not meant to happen on the criminal side where again I mean roughly 60 of the witnesses will come would have statements recorded under 161 crpc who have been interacted with by the prosecution or by elements
• 93:30 - 94:00 of the prosecution uh the investigating officers Etc so they have all interacted with the investigation whether they have interacted with that particular witness with that particular prosecutor probably not but practically when I go to a court say at 9 30 in the morning the court is going to sit at 10 I will find the prosecutor talking to the witness in the morning but that is not something that I would
• 94:00 - 94:30 object to because I want the prosecutor to know what he or she is doing and if I am ready with my cross I am reasonably certain that regardless of how because I have prepared myself against the standard of the chat sheet which is the best case that they can come up with right so if the witness is going to come and say that I saw him at a distance of 30 feet it will be there in the charge sheet somewhere so I'm ready for that so whether you're reminding him is just
• 94:30 - 95:00 make things faster so I don't care right so he can they can and and to some extent it's a reasonable process the prosecutor wants to know who are you what have you come for so those kinds of interviews are are I think part of the course but at the same time if that witness now comes and says well I saw him not from 30 feet but from 5 feet I have an advantage as the defense come through because that is beyond the record now so and and that's fairly Elementary so that's not what normally happened in a prosecution so those between the prosecutor and the witness the
• 95:00 - 95:30 discussion is usually logistical in nature that this is these are the documents do you know this document can you help me find this document so that kind of uh those kinds of interactions are are not something that are really objectionable right but I'm sure tutoring does happen remember it's not meant to happen
• 95:30 - 96:00 hey thank you for the talk sir thank you um I think we are all law students and potential litigators of the future what advice do you have for us to maybe train ourselves during our law school and or in the legal school or maybe if I have to refresh in another way what sort of lawyer would you look for if he has to or she has to work for under you if we have to work as a litigator yeah as a litigator what type of uh things
• 96:00 - 96:30 you would look for in a good literature look the threshold of um competence let me say that is exhibited by almost I mean without exception to students that have graduated from your college or your peers right doesn't really matter in what order they graduate in is normally so high
• 96:30 - 97:00 that you breach all requirements of competence from day one this is a question this is a fact and is relevant right because the vast majority of the support that a court gets today is is not of the same standard that these are not people who have had the same opportunities that you have had right over five years two or three years depending on which course you've done in
• 97:00 - 97:30 an institution like this you have been exposed to a lot more than previous generations have been exposed to so your competence levels are are already quite High respective and of course adjusted for your relative ages the fact that you have graduated from institutions like this means that your basic skills your soft skills are really good right very very rarely will you find someone with pose off skills Who come out of institutes like that so
• 97:30 - 98:00 what I would be looking for are people who are willing to learn on the job right because no matter how many of these seminars you attend it's very different when you are actually inside a court and I'm sure all of you experienced that in your various internships and whether whether it's a court whether it's a law firm whether it's you know an international body the ministry wherever you're doing your internships in a newspaper in a company
• 98:00 - 98:30 when you actually interact with how so so for example I have to look up which is the provision for one for examination in Chief for this talk I have no idea what the provision is I know it's there somewhere right so I know it's there I've looked for it I have to identify to make this slide so I found it there right so the knowledge that is required is not so much the provision number what is it exact what does it say how many judgments are there on point right and especially in the environment that
• 98:30 - 99:00 you're growing up in with where you know all this information is available to you uh in your phones in your laptops Etc so the kind of student that is say required that was required 30 years ago or 20 20 years ago let me talk about 20 years ago is very different from the kind of student that is coming out today so you all have a lot of information you have access to a lot of information so the focus is now on what you do with that information because not only you but your peers your
• 99:00 - 99:30 near peers you are competing with not just the badge that you're graduating with or the badge across the country that you're graduating with that particular year you're competing with people who've been around for a year more for two years more right so you're roughly competing in a in a you know in for three years say so how do you distinguish yourself in that you can't say that I speak very well all of you speak very well you can't say that I've gone to a good college most of you have gone to a good college so then you're looking at
• 99:30 - 100:00 distinguishing features I would look at people who are willing to learn and it's really difficult it's not it's it sounds glib but it's not because I find interns who come from across the country unwilling to say that I don't know the answer to this if I ask them a question I will I'll get six minutes of perfectly curated English without the answer right and it's a work of art it's it's improving each year I get better and
• 100:00 - 100:30 better you know it's now it's footnoted it'll come with little you know we'll dance emojis I mean I I'll get the full treatment of full beans except the answer I don't expect the answer I don't have the answer most of the time I mean I have to appear in quote tomorrow I have absolutely I don't know the first clue of what I'm going to say tomorrow right but it'll all start with when I'm driving on the way back this lovely ride that I have uh back to Delhi when I'm on the phone in my junior I'm
• 100:30 - 101:00 gonna have to ask them what is it that I'm supposed to say it's it it'll be I mean I would seem like a God if I were to tell them I don't even need your help I know exactly what I'm going to say right but I know that that's not true so that being able to uh um to be self-aware right that you are entering an environment that is possible just possible that you're not fully ready to be in that environment it's not
• 101:00 - 101:30 that you're not capable of being ready but you're not you're not there yet the moment you're willing to make that adjustment across the board you will be accepted it doesn't matter it's not not just for litigation I am I have counterparts in in law firms who are looking for the same thing they will teach you what they need from you and you have the ability to deliver to them what they want but that communication has to happen in a manner that is Pleasant for both sides right
• 101:30 - 102:00 hello very good evening sir and thank you so much for such an insightful session first of all my question is related to what advice would you give to first generation lawyers who wants to be potential litigants in the future considering that the litigation is a very competitive field so yeah but uh a lot depends on where you want to litigate as a person I'm a first generation
• 102:00 - 102:30 lawyer right so if you want to litigate in you choose your city if you have so you have to play on whatever advantages you have there are Advantage you are standing uh you know if you're looking at a hierarchy of of just say first generation lawyers you have advantages over the vast majority of people who are going to graduate with you right just by virtue of the fact that you have studied in and a fairly eminent institution that
• 102:30 - 103:00 by itself gives you an advantage over I'd say 90 of the people who are graduating with you so I would not rarely look at it as a disadvantage being a first generation lawyer there are many advantages of being a second generation or a third generation lawyer but there are equally problems with being a first generation of second generator third they have their own their own set of issues that they have to deal with first generation lawyers have disadvantages in so far as their parents
• 103:00 - 103:30 or their grandparents or the uncles and aunts aren't in until litigation but you have other you have no fixed Abode you can go and start from anywhere it really doesn't matter right you don't have to start doing service matters or Tax Matters because that's what you know you've been doing for the last 700 years so you can do pretty much what you feel like but you have to rely on the advantages that you have so for example I encourage a lot of students who have this question to consider practicing in the towns that
• 103:30 - 104:00 they are from or the cities that they're from the as long as practice is viable of a standard that is acceptable to you those are excellent choices to make and the ability to distinguish yourself in a smaller jurisdiction as a first generation lawyer is often higher right so there are advantages disadvantages in depending on where you
• 104:00 - 104:30 would like to start practice but that that my advice to you would be consider that question first where would you like to practice and then you can move on from there again thank you very much sir I had one question you have a question uh so more
• 104:30 - 105:00 often than not we see even in movies courtroom dramas and also in the real courtrooms that the the opposite lawyer is often going to object and going to standard and going to say that objection a lot and to a particular question that is there in an examination in Chief I happen to witness once that one lawyer said that this is hearsay while the other loyal World exam in L.A doing the chief examination uh the other Council said that this is a
• 105:00 - 105:30 matter of argument so sir in such cases should your job as the opposite lawyer who's standing on the other side should be such that to like uh postpone that question like uh for the matter of arguments or should you be objecting there and there all right great so if during the course of examination in Chief you know that I am I am examination achievement going on as the defense lawyer I object if my objection is sustained immediately
• 105:30 - 106:00 then the prosecutor has to reframe the question or avoid the question altogether if the prosecution pushes back and says that look uh this is a question of admissibility we decided at a later stage normally no prosecutor will say that normally the prosecutor will say that your objection is garbage please decide it right now right and more often than not we lose so it is normally the defense who is saying that just leave my objection be and decide at the final stage
• 106:00 - 106:30 so that is a um that is a um um a considered Retreat where you are where you're telling your client as well that look the objection is recorded So what you would do is the in the narration of the evidence there will be a bracketed portion where it will say Council for the defense is objected to this particular line on the ground of mode of proof on the ground of admissibility whichever is the test and this is something that will be examined at the final stage and that will be left
• 106:30 - 107:00 then for someone to collate at the end and you have to agitate those issues but there is now increasingly a view being taken by high courts and I think there is a supreme court view on this that objections have to be decided immediately to the court will stop the matter either decide the objection immediately there or will decide it say the next day keep it as an application if depending on the nature of the application right whether if it is a an oral objection be decided then and there if it's an application
• 107:00 - 107:30 that requires some more effort to be put in an objection that requires some more effort quote May call for an application and decide it as a miscellaneous applications during the course of the day or the next day okay we're done are they free they are not all right thank you [Applause]
• 107:30 - 108:00 so on behalf of the trial advocacy society and I think the entire student body I would like to extend my gratitude to Mr Shri Singh for coming here and enlightening us on such a crucial aspect of the trial process that is examination in Chief and I think so to not do uh justice when he said that examination like across exam session on cross-examination would be much more interesting because the way he conducted
• 108:00 - 108:30 this session I found it to be so very interesting and I would also like to extend my gratitude to Professor Panna Babu George and all the faculty um that is connected with the trial advocacy Society I would also like to thank the photographer and the videographer for um beautifully capturing this event and um finally I would like to thank all for attendees who
• 108:30 - 109:00 um grease this event and took in all the knowledge thatsover had to give to us and I wish you all a very good evening and thank you so much [Applause] um candle members of the trial advocacy Society just stay back for a quick picture