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Case Analysis Essay

The appellant, Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (hereinafter referred to as â the appellantâ or as â Kasabâ ), who is a Pakistani national, has earned for himself five death penalties and an equal number of life terms in prison for committing multiple crimes of a horrendous kind in this country. Some of the major charges against him were: conspiracy to wage war against the Government of India; collecting arms with the intention of waging war against the Government of India; waging and abetting Indian Kanoon – http://indiankanoon.org/doc/78874723/

Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra on 29 August, 2012

the waging of war against the Government of India; commission of terrorist acts; criminal conspiracy to commit murder; criminal conspiracy, common intention and abetment to commit murder; committing murder of a number of persons; attempt to murder with common intention; criminal conspiracy and abetment; abduction for murder; robbery/dacoity with an attempt to cause death or grievous hurt; and causing explosions punishable under the Explosive Substance Act, 1908.

He was found guilty of all these charges besides many others and was awarded the death sentence on five counts, life-sentence on five other counts, as well as a number of relatively lighter sentences of imprisonment for the other offences. 2. Apart from the appellant, two other accused, namely Fahim Ansari and Sabauddin Ahamed, both Indian nationals, were also arraigned before the trial court and indicted on the same charges as the appellant. 3. At the end of the trial, however, the appellant was convicted and sentenced to death as noted above (vide judgment and order dated May 3/6, 2010 passed by the Addl. Sessions Judge, Greater Mumbai in Sessions Case No. 175 of 2009).

The other two accused were acquitted of all charges. The trial court gave them the benefit of the doubt as regards the charges of conspiracy and abetment of other offences by conspiracy, and further held that the prosecution completely failed to establish those other charges that were made directly against them.

4. The judgment by the trial court gave rise to a reference to the Bombay High Court under Section 366 of the Code of Criminal Procedure (CrPC), registered as Confirmation Case No. 2 of 2010. In addition to the reference, two appeals also came to the High Court from the judgment and order passed by the trial court, one by the appellant against his conviction and sentences (Criminal Appeal No. 738 of 2010) and the other by the State of Maharashtra against the acquittal of the other two accused (Criminal Appeal No. 606 of 2010).

The High Court, by its judgment and order dated February 21, 2011, confirmed the death sentences given to the appellant by the trial court and dismissed both the appeals. The High Court upheld the judgment and order passed by the trial court in all material aspects: it sustained the appellantâ s conviction and confirmed the punishments given him by the trial court, but at the same time it did not interfere with the acquittal of the other two accused.

5. From the judgment of the High Court two appeals have come to this Court: one is a jail appeal by Kasab and the other is by the State of Maharashtra. The Stateâ s appeal seeks to challenge the acquittal of the other two accused by the trial court and affirmed by the High Court. The other two accused are impleaded in the Stateâ s appeal as Respondents No. 1 and 2. Kasab was unrepresented in the appeal preferred by him from jail and this Court, therefore, appointed Mr. Raju Ramachandran, senior advocate, assisted by Mr. Gaurav Agrawal, to represent him.

He was thus able to get legal assistance of a standard and quality that is not available to a majority of Indian nationals approaching this Court against their conviction and sentence. 6. We may also state here that since it is a case of death sentence, we intend to examine the materials on record first hand, in accordance with the time-honoured practice of this Court, and come to our own conclusions on all issues of facts and law, unbound by the findings of the trial court and the High Court. 7. According to the prosecution, a sinister conspiracy was hatched in Pakistan and in furtherance of that conspiracy a savage attack was unleashed on Mumbai by a team of ten terrorists, including Kasab, who landed on the cityâ s shores via the Arabian Sea.

The attack began on November 26, 2008 at about 9.15 PM and it ended when the last of the attackers, who was holed up in Hotel Taj Mahal Palace, was killed by Indian security forces at about 9.00 AM on November 29. The brutal assault left Mumbai scarred and traumatized and the entire country shocked. The terrorists killed one hundred and sixty-six (166) people and injured, often grievously, two hundred and thirty-eight (238) people.[1] The loss to property resulting from the terrorist attack was assessed at over Rupees one hundred and fifty crores (Rs. 150 Cr.). The dead included eighteen (18) policemen and other security personnel and twenty-six (26) foreign nationals.

The injured included thirty-seven (37) policemen and other security personnel and twenty-one (21) foreign nationals. Of those dead, at least seven (7) were killed by the appellant personally, seventy-two (72) were killed by him in Indian Kanoon – http://indiankanoon.org/doc/78874723/

Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra on 29 August, 2012

furtherance of the common intention he shared with one Abu Ismail (deceased accused no.1) and the rest were victims of the conspiracy to which he was a party along with the nine (9) dead accused and thirty-five (35) other accused who remain to be apprehended and brought to court.[2] 8. The case of the prosecution is based, of course, on investigations by the police, but a good deal of it also comes from the confessional statement of the appellant recorded under Section 164 of the CrPC.

The confession of the appellant may be broadly divided into two parts, one relating to the conspiracy, planning and preparation for the attack, and the other relating to the actual attack on Mumbai, in execution of the conspiracy of which the appellant along with his â buddiaâ [3], the accomplice Abu Ismail, was a part. So far as the attack on Mumbai is concerned, every statement made by the appellant is corroborated over and over again by objective findings and evidences gathered by the prosecution.

But the conspiracy and the preparation for the attack took place in Pakistan and, therefore, it was impossible for any agency of this country to make investigations in regard to that part of the case. Nevertheless, the investigators have been able to gather extensive material to corroborate even that part of the appellantâ s confession. 9. It would thus be convenient to present the case of the prosecution by beginning with the appellantâ confessional statement.

THE RECORDING OF THE CONFESSIONAL STATEMENT:
10. The appellant was brought before the Chief Metropolitan Magistrate, Mumbai, on February 17, 2009, to make his confessional statement. The Chief Metropolitan Magistrate referred him to Mrs. Sawant-Wagule, Addl. Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, before whom he was presented for recording his confessional statement in CR No. 198/08 of Detection of Crime Branch, Mumbai (one of the twelve (12) cases registered in connection with the offences committed by the invading group of terrorists) at 10.45 AM on the same day.

11. Mrs. Sawant Wagule proceeded to take his statement very slowly and with great circumspection. First of all, she had the appellant completely insulated from the police. She explained to him that from that point he was in her custody and not in the custody of the police. She asked him whether he was ill-treated or abused by the police in any manner and why he wanted to make the confessional statement. To her first question the appellant replied in the negative, and as for the reasons for him making a confession he said he would explain everything when his statement was recorded in detail.

The magistrate further satisfied herself that the appellant was willing to make the confessional statement voluntarily and not under any pressure, coercion or allurement by the police or anyone else. Nonetheless, she did not take his statement on that day but told him that she wanted him to reflect further on the matter, for which purpose she was giving him 24 hoursâ time. She then remanded him to judicial custody where he was not accessible to the police or any other agency. 12.

When the appellant was brought back to her on February 18 at 11 AM, she had another long exchange with him. In the preliminary exchanges on the previous day she had found that the appellant had no difficulty in following or speaking in Hindi; thus, the interaction between the magistrate and the appellant took place, in question and answer form, in simple, everyday spoken Hindi.

The magistrate, having satisfied herself that the police had no contact with the appellant in the past 24 hours, began by telling the appellant that she had no concern with the offences for which he was arrested or any connection with the police that had arrested him.

She explained to him that he was under no compulsion to make the confessional statement and further, that whether he made the confessional statement or not, he would not be handed back to the police. She confirmed once again that the appellant wished to make the statement of his own volition and not under any influence. 13.

The appellant told her his name and gave his address of a place in Pakistan. She asked him about his education and where, when and how he was arrested by the police. She asked him why was he brought to her and in reply he said that he wanted to make a confessional statement. She asked for which offence he wanted to make confession. He replied that on November 26, 2008, he and his accomplices made a Fidayeen attack Indian Kanoon – http://indiankanoon.org/doc/78874723/

Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra on 29 August, 2012

on Mumbai city and he wanted to make a confession about the attack and the conspiracy behind it. She asked when he felt like making a confession. He told her that the thought of making the confession came to him when he was arrested by the police. He added that he had absolutely no regret for whatever he had done.

He wanted to make the confession to set an example for others to become Fidayeen like him and follow him in his deeds. The magistrate cautioned him by saying that he should make the statement only if he wished to do so. She further cautioned him by saying that any confessional statement made by him would be taken down in writing and it would be used as evidence against him and that might lead to his conviction. The appellant said he was aware of the consequences.

The magistrate again asked him whether the police had given any inducement to him to make the confessional statement, such as by offering to make him an approver. He replied in the negative. She then asked if he needed an advocate while making the confession. Once again, he answered in the negative.

14. Even after this lengthy and detailed interaction, the learned magistrate did not take his confession on that day but gave him a period of 48 hours for further reflection, telling him that during that period he would not be in police custody but would be kept in jail in her custody. She advised him to reconsider the matter with a composed mind. She then remanded him to judicial custody with the direction that he be produced before her on
February 20, 2009, at 11 AM.

15. The appellant was produced before the magistrate as directed, on February 20 at 10.40 AM. The magistrate repeated the entire gamut of explanations and cautions at the end of which the appellant said that he still wanted to make his confession. It was only then did the learned magistrate proceed to record the statement made by the appellant under Section 164 of the Code of Criminal Procedure. The statement could not be fully recorded on February 20 and it was resumed on February 21 at 10.40 AM. On that date, the recording of the statement was completed.

The learned magistrate has maintained a meticulous record of the proceedings before her on all those dates, duly signed by the appellant. After recording his statement, she also gave such certificates as required under sub-section 4 of Section 164 CrPC. 16. Coming now to the main body of the confessional statement, it is in the form of a statement made by the appellant with only minimal interjections by the learned magistrate. She occasionally asked the appellant to clarify the meaning of some uncommon words or code words used in the conspiracy.

The appellantâ s statement, made before the magistrate over two days, is long and rambling, at points repetitive and full of seemingly superfluous details that would appear quite unnecessary if one is to take a limited view of the case and judge the culpability of the appellant only on the basis of the events in Mumbai. To that end, it would be quite simple and convenient to give a brief summary of the appellantâ s confessional statement. But such an approach will not do justice to the case and we intend to take a look at the full statement of the appellant with all its repetitions and details. We do so to be fair to both the prosecution and the appellant.

The details given by the appellant have a bearing on the prosecution case, according to which conspiracy, conspiracy to wage war against India and waging war against India are some of the main crimes in the case, and the details given by the appellant throw a great deal of light on the commission of those crimes.

Further, the details in the appellantâ s statement are relevant to the submission that the confessional statement is not truly voluntary but that the appellant was manipulated into making that statement. It is submitted on behalf of the appellant that no accused making an admission of his guilt would refer to those unnecessary details and that the great detail of the confessional statement only shows that it was not the appellant but the prosecution that was speaking through his mouth. We, therefore, scan the confession as it is, in full, unabridged and unadorned. THE KASAB NARRATIVE:

Family background:
17. The appellant started by giving his name as Mohammed Ajmal Mohammad Amir Kasab. He was born on September 13, 1987. He lived in Pakistan where his address was village Faridkot, tehsil-Dipalpur, district Okara, Punjab province, Pakistan. He attended the Urdu-medium Faridkot Government Primary School up to Indian Kanoon – http://indiankanoon.org/doc/78874723/

4

Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra on 29 August, 2012

class 4. He lived in the village with his Abbu Mohammad Amir Shaban Kasab, his Ammi Noor-e-Elahi, younger brother Munir and younger sister Surraiya. He gave his fatherâ s mobile phone number. He had an elder sister and an elder brother, both of whom were married. The sister lived with her husband at a village in Pathankot, district Okara, and the brother lived in Lahore with his wife. He gave the names of the spouses of the elder sister and the elder brother and their respective addresses. 18.

After the immediate family he gave the names of his three paternal uncles, elder to his father, and their sons, who lived in village Mohammad Yar Chishti, Pathankot, district Okara, Pakistan. He also named a fourth paternal uncle, younger to his father, who lived with the appellantâ s father. 19. He then gave the names of his Mamoon (motherâ s brother) and his three sons and a daughter and their address; and the name of his Khaloo (motherâ s sisterâ s husband), his address and mobile phone number. 20. He gave the name of another sister of his mother whom he called â

Mamoâ

and her address.

21. He had two paternal aunts who were married. He gave their names and their addresses. He said that his Mamoon and Mousi (motherâ s brother and sister) had grown-up children. 22. Kasab added that his house at Faridkot had been taken by his father who earned his livelihood by plying carts. Kasab was fond of watching TV and Hindi movies; he named a number of popular Indian films that he had seen many times. He was in the habit of chewing tobacco. He was good friends with the village doctor, Mazhar, who had a dispensary near Faridkot bus stop.

23. After dropping out of school in the year 2000, Kasab and his friend Dittu started working as labourers in Faridkot. In 2001, he and his Abbu went to Lahore in search of employment. In Lahore he lived with his father and uncle, Ghulam Rasool, in a house they rented from Haji Qamar. He gave the detailed address of the house. On his fatherâ s instructions, Kasab started working as a labourer at â Mazdooron Ka Addaâ . He worked there for about five years. In the year 2005, his father and uncle returned to their village.

Kasab continued to stay in Lahore alone, living in rented accommodation. During this period he used to visit his village home. On one such visit, he quarreled with his Abbu over the money earned by him. After the quarrel he left the home and started living at Ali Hajveri Dargah in Lahore. Kasabâ s friend Shafique got him a job in Welcome Tent Service. He gave the full address of the establishment, the name of its owner and the mobile phone numbers of the owner and his son. He added that the owner of the establishment used to call him â Balkaâ . It was here that Kasab met and befriended Muzaffar Lal Khan, who also worked there. Induction into Lashkar-E-Toiba, Indoctrination and Training for â

24. In November 2007, Kasab and Muzaffar Lal Khan went to Rawalpindi in search of better employment and took rented accommodation in Bangash Colony. It was here, around the month of December, that they saw members of Lashkar-e-Toiba going from door to door under the name of Jamaat-ul-Dava, collecting hides of goats sacrificed on Eid-uz-Zoha. They were asking people to donate the goat hides to help achieve independence for Kashmir. Kasab and his friend developed great respect for those people.

They thought that those people were fighting for the liberation of Kashmir and they, too, should do something for their people. When they were working at Sarai Alamgir members of Jamat-ul-Dava were organising camps at different places where they would go to listen to their speeches. He explained that after Lashkar-e-Toiba was banned in 2002, it started its activities in the name of Jamat-ul-Dava. At this time, Kasab and Muzaffar Lal Khan first thought of undergoing training for Jihad.

25. In December 2007, they took the address of the office of Lashkar-e- Toiba from a moulvi and reached its office at Raja Bazar, Rawalpindi. He added that the office was near Bangash Colony. There were two persons in the office who asked them the purpose of their visit. They replied that they wanted to undertake Jihad. The office people took their address in full and asked them to come the following day, with their clothes and other Indian Kanoon – http://indiankanoon.org/doc/78874723/


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