Mohammad Ajmal Amir Kasab v. State of Maharashtra (2012) 9 SCC 1

Mauli Bisen

Name of Case: Mohammad Ajmal Amir Kasab v. State of Maharashtra
Citation (2012) 9 SCC 1
Year of the case 2012
Appellant Mohd. Ajmal Mohd. Amir Kasab@ Abu Mujahid
Respondent State of Maharashtra
Bench/ Judges Aftab Alam Chandramauli Kr. Prasad
Acts Involved Constitution of India, Indian Penal Code 1860, Criminal Procedure Act, Evidence Act, Unlawful Activities Prevention Act, Passport Act, Arms Act, Explosive Substance Act, Railways Act, Prevention of Damage to Public Property, Foreignness Act, Custom Act.
Important sections

Article 61, 20(3), 22(1) of Indian Constitution, Section 164 of Cr.P.C
We all remember the revenge attack on the Glamorous Mumbai City on 26 November 2008 by ten terrorist operatives of the Pakistani terrorist group Lashkar-e-taiba Fidayeen. These terrorists first attacked the Chatrapati Shivaji Maharaj Terminus Railway Station, then the Leopold Café, and the Taj Hotel. In this attack, 166 innocent people, including 26 foreigners, were brutally killed by the terrorists. It was the first time any terrorist who was considered the mastermind of this heinous crime had been captured alive. This case study provides a detailed analysis of how Ajmal Kasab was hung.

Terrorism has become a major threat to the international security of any country. Mohd. Ajmal Kasab and his nine other partners entered the commercial capital of India illegally, i.e. Mumbai City, November 26, 2008. They attacked the Leopold Café, the Taj Hotel, the Oberoi Trident Hotel, and the Nariman House in various parts of Mumbai.
Terrorists began their journey from Karachi, Pakistan, in a small boat, and after they captured the MV Kuber vessel, they killed Mr. Amar Singh Solanki, the captain of the vessel, as soon as they reached Mumbai. The terrorist was working for Pakistan's famous terrorist group, Lashkar-e-taiba Fidayeen. These terrorists, having reached Mumbai, were divided into five groups and attacked in various parts of Mumbai and killed several innocent people in the name of Jihad. Kasab was the only terrorist to have been caught alive after the attack. He was sentenced to death by the Supreme Court of India in 2012 after 4 years of the Mumbai attack.

Background of the case:
• Ajmal Kasab was a member of the Pakistan-funded terrorist group Lashkar-e-Taiba.
• Ajmal Kasab and Nine other Lashkar-e-Taiba terrorist operatives attacked Mumbai, India's commercial capital.
• The attack in Mumbai in 2008 was a series of heinous attacks in major parts of Mumbai, notably the CST railway station Mumbai, the Leopold café, the Taj hotel, the Oberoi Trident hotel, and the Nariman House.
• After 3 days of fighting by the Indian police and soldiers, Ajmal Kasab was the only terrorist who was captured alive and his 9 partners were shot dead.
• Following the arrest of Ajmal Kasab, the prosecution filed a 100-page charge sheet against him on 25 February 2009.
• For ethical reasons, most of the advocates refused to take the case of Ajmal Kasab. But after being denied by several advocates, Anjali Waghmare agreed to take the case of Ajmal Kasab.
• His first hearing of the case was scheduled to take place on 15 April 2009 but, due to a conflict of interest, Kasab's lawyer, Anjali Waghmare, was replaced by Abbas Kazmi, the first hearing was postponed to 17 April 2009.
• Ajmal Kasab was sentenced to death by the Court of Justice, which was upheld by the High Court of Bombay on 21 February 2011.
• On 30 July 2011, Kasab challenged the death sentence handed down by the lower courts of the Supreme Court of India. The Supreme Court then appointed Raju Ramchandran, a senior lawyer, as amicus curiae, to examine all evidence.

Facts of the Case
Mumbai's attack in November 2008 was a series of heinous terrorist attacks that created terror in the minds of every citizen of the country. Ten members of Lashkar-e-Taiba illegally entered the city of Mumbai on 26 November 2008 and attacked various famous places in Mumbai, such as the Taj Hotel, the Leopold Café, the Oberoi Trident Hotel, the Metro Theater, and the CST Railway Station killed nearly 166 people. They entered Mumbai through the Arabian Sea. Only Ajmal Kasab, who was actively involved in this attack, was arrested alive in this attack. The rest of the terrorists were shot dead.
The plot to attack India was to start a war against the Government of India, conspiring to commit murder in Pakistan. These attacks were planned for the period from December 2007 to November 2008. Terrorists were supplied with arms from Pakistan to attack India. Before the attack, the terrorists were told, "It's a right for Jihad, and if they died on this mission, they're going to get a place in heaven." They were also told that only by weakening the Government of India from within, can Kashmir be acquired. This can only be done by attacking India's big cities. Mohammad Ajmal Kasab and nine other terrorist operatives killed almost 166 people and nearly 238 people were seriously injured and millions of worth of property was destroyed.

Legal Issue
• Whether the appellant was given a free and fair trial under Article 21 of the Indian Constitution of India before his conviction?
• Whether the appellant has confessed without any incentive under Section 164 of the CrPC?

Related Provisions
Indian Penal Code, 1860
• Section 34 – Acts of several persons in support of a common intention;
• Section 109 – Punishment of abetting where the abetted act is committed in the event of 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 wage war against the Government of India,
• Section 121A – Conspiracy to commit offenses punishable by section 121;
• Section 122-Collecting arms, etc., with a view to waging war against the Government of India,
• Section 123 – Concealing with a view to facilitating the design of wage war,
• Section 124 – Assaulting president, governor, etc., with a view to forcing or restricting the exercise of any legal power,
• Section 124A – Sedition,
• Section 125 – The wage war against any Asian power in alliance with the Government of India;
• Section 126 – Depredation of the Territories of Power in Peace with the Government of India,
• Section 302 – Penalty for murder,
• Section 307 – Attempts to murder,
• Section 324 – Voluntarily causing harm to dangerous weapons or means;
• Section 341 – Penalty for wrongful restraint,
• Section 342 – Penalty for wrongful confinement,
• Section 347 – Incorrect confinement to extortion of property, or restriction to an unlawful act,
• Section 364 – Kidnapping or kidnapping for murder
Code of Criminal Procedure, 1973
• Section 161 – Police examination of witnesses,
• Section 162 – Statements not to be signed by the police: use of evidence,
• Section 163 – No incentive to be offered,
• Section 164 – Recording of confessions and declarations,
• Section 173 – Report of the police officer on completion of the investigation;
• Section 229 – Conviction on a plea of guilt
Indian Evidence Act, 1872
• Section 3 – Clause of interpretation,
• Section 5 – Evidence of the facts in question and the relevant facts may be provided;
• Section 7 – Facts which are the occasion, cause, and effect of the facts at issue;
• Section 16 – Existence of course of business where relevant,
• Section 24 – Confession by incitement, threat, or promise where it is irrelevant in criminal proceedings;
• Section 27 – How much of the information received from the accused can be established,
• Section 35 – Relevance of the entry into the public record or electronic record made in the performance of the duty;
• Section 45 – Expert opinions,
• Section 60 – Oral evidence must be direct;
• Section 65B-Admissibility of electronic records
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 assistance

• Initially, the court handed down the death penalty to Ajmal Kasab. After the judgment of the Court of Justice, Kasab challenged that judgment in the High Court, but the High Court rejected Kasab's plea and upheld the death penalty. Finally, Ajmal Kasab appealed to the Supreme Court to annul his death penalty, but the Supreme Court upheld the judgment of the lower courts on 29 August 2012.
• On 5 November 2012, the President of India, Mr. Pranab Mukherjee, rejected the Mercy Petition filed by Ajmal Kasab.
• Finally, at 7:30 a.m. on 21 November 2012, Ajmal Kasab was hanged to death in complete secrecy at Yerwada prison in Pune.

Concept Highlighted
Article 21 of the Constitution of India provides that every person has the right to free legal aid and a fair trial. Free legal assistance was provided to Mohammad Ajmal Kasab from India. With his free will, he gave his confession. Under Section 164 of the Cr.P.C., the Magistrate of the Judiciary had recorded the confession of Kasab. Ajmal Kasab first wrote a letter to the Pakistani authorities to provide him with a Pakistani lawyer saying that he had no trust in Indian lawyers, but the Pakistani authorities refused to recognize him as a citizen. Even though Kasab had committed several heinous crimes and killed a lot of innocent people, the Indian courts still handed him a fair trial.