Mohammad Ajmal Amir Kasab v. State of Maharashtra

Name of the Case:Mohammad Ajmal Amir Kasab v. State of Maharashtra
Citation(2012) 9 SCC 1
Year of the case2012
AppellantMohd. Ajmal Mohd. Amir Kasab@ Abu Mujahid
RespondentState of Maharashtra
Bench/ JudgesAftab AlamChandramauli Kr. Prasad
Acts InvolvedIndian Penal Code, 1860.Evidence Act, 1872Criminal Procedure Code, 1973Constitution of IndiaArms Act, 1959Unlawful Activities (Prevention) Act, 1967Explosive Substances Act, 1908Passport Act, 1920Prevention of Damage to Public Property, 1984Railways Act,1989Customs Act, 1962Foreignness Act, 1946.
Important sectionsSection 164 of Cr.P.C Article 61 of Constitution of IndiaArticle 20(3) of Constitution of IndiaArticle 22(1) of Constitution of India

Abstract:

We all remembered the revenge attack on Glamorous Mumbai City on 26th November 2008 by ten terrorists of Pakistani terrorist group Lashkar-e-taiba Fidayeen squad. These terrorists firstly attacked in Chatrapati Shivaji Maharaj Terminus Railway station then in the Leopold café, and in the Taj Hotel. In this attack, terrorist brutally killed 166 innocent peoples including 26 foreigners. It was the first time when any terrorist who is considered to be mastermind of this heinous crime was captured alive. This case study makes a detailed analysis on how Ajmal Kasab was hanged. This case study also deals with the background of Ajmal Kasab and laws referred and cases taken in reference during the proceedings of the case.

Ø  Introduction:

Terrorism has become a great danger to the international security of any country. Mohd. Ajmal Kasab with his nine other partners illegally entered into the commercial capital of India i.e. Mumbai City on 26th November 2008. They attacked on various places of Mumbai especially the Leopold Café, the Taj hotel, Oberoi Trident hotel and the Nariman House. 

The terrorists started their journey from Karachi, Pakistan in a small boat and after that they captured vessel MV Kuber and as soon they reached Mumbai they killed the captain of the vessel Mr. Amar Singh Solanki. The terrorist worked for famous terrorist group of Pakistan named Lashkar-e-taiba Fidayeen. These terrorists after reaching to Mumbai were divided into five groups and attacked in various places of Mumbai and killed several innocent people in the name of Jihad. Kasab was the only terrorist who was caught alive after the attack. He was given death punishment by the Supreme Court of India in the year 2012 after 4 years of the Mumbai attack.

Ø  Background of the case:

  1. Ajmal Kasab was a member of Lashkar-e- Taiba, a terrorist group funded by Pakistan.
  2. Ajmak Kasab with Nine other terrorist of Lashkar-e-Taiba attacked on Mumbai, the commercial capital of India.
  3. Mumbai attack in 2008 was a series of heinous attacks in major places of Mumbai especially CST railway station Mumbai, the Leopold café, the Taj hotel, Oberoi trident hotel and the Nariman House.
  4. After 3 days struggle of Indian Police and soldiers, Ajmal Kasab was the only terrorist who was captured alive and his 9 partners were shot dead in the encounter.
  5. After the arrest of Ajmal Kasab, the prosecution on 25th February 2009, files a 100 pages charge sheet against him.
  6. Due to ethical reasons, most of the advocates denied to take the case of Ajmal Kasab. But after the denial by several advocates, Anjali Waghmare agreed to take the case of Ajmal Kasab.
  7. His first hearing of the case was scheduled to be held on 15th  April 2009 but due to conflict of interest, kasab’s lawyer Anjali Waghmare was replaced by Abbas Kazmi, the first hearing was postponed to 17th April 2009.
  8. The trial court awarded the death sentence to Ajmal Kasab which was upheld by the Bombay High Court on 21st February 2011.
  9. On 30th July 2011, Kasab challenged the conviction of death sentence awarded by the lower courts in the Supreme Court of India. The Supreme Court then appointed senior lawyer Raju Ramchandran as amicus curae to examine all the evidences.

Ø  Facts of the case:

Mumbai attack in November 2008 was a series of heinous terrorist attacks which creates terror in the minds of each and every citizen of the country. Ten members of lashkar-e-taiba on 26th November 2008 illegaly entered into the Mumbai city and attacked on various famous places of Mumbai like The Taj Hotel, the Leopold café, the Oberoi trident hotel, the Metro Theatre and the CST railway station and killed almost 166 people. These terrorists entered into the Mumbai through Arabian sea. In this attack only Ajmal Kasab who was actively involved in this attck was arrested alive. Rest of the terrorists was shot dead in the encountered.

A conspiracy of attacking India was to initiate a war against the Government of India, conspiracies to commit Murder was hatched in Pakistan. These attacks were planned during the period of December 2007 to November 2008. The terrorists were supplied with arms from Pakistan in order to Attack on  India. The terrorists were told before the attack that “ It is a right for Jiihad and if they died in this mission, they will get the place in heaven”. They were also told that Kashmir can only be required by weaken the Government of India from inside. This can only be done by attacking the big cities of India. Mohammad Ajmal kasab and 9 other terrorists killed almost 166 people and almost 238 people were seriously injured and property of millions worth was completely destroyed.

Ø  Legal Issues:

• Whether the appellant got a free and fair trial under Article 21 of the Indian Constitution of India before his conviction?

• Whether the appellant confessed without any inducement under Section 164 of CrPC?

Ø  Related Provisions:

Indian Penal Code, 1860

§ Section 34 – Acts done by several persons in furtherance of common intention,

§ Section 109 – Punishment of abetment if the act abetted is committed in consequences and where no express provision is made for its punishment,

§ Section 120B – Punishment of criminal conspiracy,

§ Section 121 – Waging, or attempting to wage war, or abetting waging of war, against the Government of India,

§ Section 121A – Conspiracy to commit offenses punishable by section 121,

§ Section 122 – Collecting arms, etc., with intention of waging war against the Government of India,

§ Section 123 – Concealing with intent to facilitate design to wage war,

§ Section 124 – Assaulting president, governor, etc., with intent to compel or restrain the exercise of any lawful power,

§ Section 124A – Sedition,

§ Section 125 – Waging war against any Asiatic Power in alliance with the Government of India,

§ Section 126 – Committing depredation on territories of Power at peace with the Government of India,

§ Section 302 – Punishment for murder,

§ Section 307 – Attempt to murder,

§ Section 324 – Voluntarily causing hurt by dangerous weapons or means,

§ Section 341 – Punishment for wrongful restraint,

§ Section 342 – Punishment for wrongful confinement,

§ Section 347 – Wrongful confinement to extort property, or constraint to an illegal act,

§ Section 364 – Kidnapping or abducting to murder

Criminal Procedure Code, 1973

§ Section 161 – Examination of witnesses by police,

§ Section 162 – Statements to police not to be signed: use of statements in evidence,

§ Section 163 – No inducement to be offered,

§ Section 164 – Recording of confessions and statements,

§ Section 173 – Report of the police officer on completion of investigation,

§ Section 229 – Conviction on a plea of guilty

Indian Evidence Act, 1872

§ Section 3 – Interpretation clause,

§ Section 5 – Evidence may be given of facts in issue and relevant facts,

§ Section 7 – Facts which are occasion, cause, and effect of facts in issue,

§ Section 16 – Existence of course of business when relevant,

§ Section 24 – Confession by inducement, threat or promise when irrelevant in criminal proceeding,

§ Section 27 – How much of information received from accused may be proved,

§ Section 35 – Relevance of entry in public [record or an electronic record] made in the performance of duty,

§ Section 45 – Opinions of experts,

§ Section 60 – Oral evidence must be direct,

§ Section 65B – Admissibility of electronic records

The Constitution of India, 1950

§ Article 20(3) – Self-incrimination,

§ Article 21 – Protection of life and personal liberty,

§ Article 22 – Protection against arrest and detention in certain cases,

§ Article 39A – Equal justice and free legal aid

Ø  Related Cases:

1.     Nandini Sathpathy v. P.L Dani:[1]

The court in this case said that when the accused is not providing with the lawyer of his choice due to unavailability of lawyers then the accused shall be produced by the Police in front of Magistrate. Mohd. Ajmal Kasab in this case was provided with a competent lawyer after the denial of Mumbai Bar Association to provide him with an advocate. Therefore, court concluded that the Kasab got a fair trial.

2.     Sarwan ingh v. State of Punjab:[2]

The appellant kasab wrote a letter to Pakistan authorities that he did not trust Indian lawyers to defend him so he wanted to appoint a Pakistani’s lawyer. But Pakistani authorities did not reply to this letter and denied him as a Pakistani Citizen. The court said that the Kasab’s demand of appointment of Pakistani’s lawyer cannot be fulfilled as Pakistani lawyer as Pakistani authorities did not give any reply to the plea. Later the appellant agreed to appoint Indian lawyer as his defense counsel.

7.     Judgment:

  • Initially the trial court awarded the death penalty to Ajmal Kasab. After the judgment of trial court Kasab challenged this judgment in the High Court but the High Court rejected the plea of Kasab and upheld the death penalty. Finally, Ajmal kasab approached to Supreme Court to cancel his death penalty but the bench of Supreme Court upheld the judgment of the lower courts on 29th August 2012.
  • On 5th November 2012, then President of India Mr. Pranab Mukherjee rejected the Mercy Petition filed by Ajmal Kasab.
  • Finally, on 21st November 2012 at 7:30 AM, Ajmal Kasab was hanged to death at Yerwada jail in Pune in a complete secrecy.

8.     Concept Highlighted;

 Under Article 21 of the Constitution of India, every person has given the right to free legal aid and fair trial. Free legal aid was provided to Mohammad Ajmal Kasab from India. He gave his confession with his free will. Under Section 164 of Cr.P.C, Judicial Magistrate had recorded the confession of Kasab. Ajmal Kasab first wrote a letter to Pakistani authorities to provide him with a Pakistani lawyer saying that he had no trust on Indian lawyers but Pakistani authorities denied to recognize him as their citizen. Even though kasab had committed several heinous offences and killed lots of innocent people, the Indian courts still provided him with a fair trial. 

References

  1. https://indiankanoon.org/doc/193792759/
  2. https://www.lawnn.com/ajmal-kasab-case-mohd-ajmal-amir-kasab-vs-state-maharashtra/
  3. https://www.wsj.com/amp/articles/BL-IRTB-17264?responsive=y
  4. https://en.m.wikipedia.org/wiki/Ajmal_Kasab

[1] AIR 1978 SC 1025.

[2] 1957 AIR 637 1957 SCR 953.

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