MOHAMMED AJMAL AMIR KASAB V. STATE OF MAHARASHTRA (2012)



Citation: (2012) 9 SCC 1

Bench- Aftab Alan, Chandramauli Kr.Prasad

No. of Judges- 2

Appellant- Mohammad Ajmal Amir Kasab

Respondent- State of Maharashtra


Abstract

On 26th November,2008, a terrorist attack took place in Mumbai which left a lasting impact on the country. A group of 10 terrorists affiliated to the terrorist group of Pakistan called Lashkar-e-taiba Fidayeen entered Mumbai city through Arabian Sea. They attacked various famous places of Mumbai especially the Leopold Café, the Taj hotel, Oberoi Trident hotel and the Nariman House.

The first attack was in Chatrapati Shivaji Maharaj Terminus Railway station, then in the Leopold café, and in the Taj Hotel. Nearly 166 people were killed in this attack including 26 foreigners. Kasab was the only terrorist that was caught alive, the rest nine were shot dead.



Facts

  1. Ajmal Kasab was a member of the terrorist group Lashkar-e- Taiga which was funded by Pakistan.

  2. Ajmal Kasab was accompanied by nine other terrorist of Lashkar-e-Taiba when he attacked Mumbai on 26th November 2008.

  3. Mumbai attack was carried out as a series of terrible and lurid attacks in major places of Mumbai especially CST railway station in Mumbai, the Leopold café, the Taj hotel, Oberoi Trident Hotel and the Nariman House.

  4. After 3 days of struggle by Indian Police and soldiers, Ajmal Kasab was the only terrorist who was captured alive and the other nine terrorists were shot dead in the encounter.

  5. After the arrest of Ajmal Kasab, the prosecution on 25th February 2009, filed a 100 pages charge sheet against him.

  6. Most of the advocates refused to take the case of Ajmal Kasab citing ethical reasons. But after the denial by several advocates, on 1st April 2009,Anjali Waghmare agreed to take the case of Ajmal Kasab.


7. His trail was scheduled to be held on 15th April 2009. Due to conflict of interest, Anjali Waghmare was replaced by Advocate Abbas Kazmi, because of which 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.The bench consisted of Justice Ranjanaa Desai and Justice Ranjit More.


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 curiae to examine all the evidence and material on record.



Legal Issues

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


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


Judgment

Justice Aftab Alan delivered the 398-page judgment in this case.

1. Supreme Court upheld the judgment of death sentence by the lower court on August 29,2012.


2. President Pranab Mukherjee rejected the mercy petition filed by Kasab on November 5, 2012.


3. Ajmal Amir Kasab was hanged to death in Yerwada Jail, Pune on November 12, 2012 at 7:30 am in complete secrecy.



Statutory Provisions

  1. Section 302 r/w, section 120 –B, 121,121A, 122 to 126 and 109, & 34, and section 307, 397, 324,341,342, & 364 of Indian Penal Code

  2. Section 162, 163,164,304,315,366 Code of Criminal Procedure

  3. Section 27 and 7 Arms Act, 1959

  4. Section 16,15 & 2(K) and section 18 and 20 – Unlawful Activities (Prevention) Act,1967.

  5. Section 4,5,6,6-A,8,9,9-A,9-B – Explosives Act ,1884, Section 2 And 3 – Explosives Substances Act ,1908

  6. Section 60,45,35,65-B,3,5,7, 24 and 27 Evidence Act, 1872

  7. Article 21, 20, 19(1), 22, 39(A) Constitution of India, 1950

  8. Prevention of Terrorism Act

Cases referred

1. State of West Bengal v. Anwar Ali Sarkar [AIR 1952 SC 75] Para 461

2. Hussainara Khatoon (IV) v. Home Secretary, State of Bihar [(1980) 1 SCC 98] Para 467

3. Khatri And Others vs State Of Bihar & Ors (Khatri (2)) [(1981) 1 SCC 627] Para 468

4. Suk Das v. UT of Arunachal Pradesh [(1986) 2 SCC 401] Para 477



Conclusion

Considering the heinous acts committed by Kasab, a few lawyers refused to take up his case but the Supreme Court held that under Article 21 of the Constitution of India, every person has the right to free legal aid and fair trial. Therefore, free legal aid was provided to Mohammed Kasab.

Kasab's confession which was given by his free will was recorded by the Judicial Magistrate under section 164 of CrPC.

Kasab's death penalty was upheld on charges of criminal conspiracy, waging war against the nation and various other provisions of the Indian Penal Code and the anti-terror law-unlawful Activities (Prevention) Act.



This article is written by Saumya Tripathi of BhartiVidhyapeeth Deemed to be University New Law College, Pune, India.

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