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The 26/11 Mumbai Terrorist Attack Case- A Brief Analysis .

Md. Ajmal Md. Amir Kasab .v. State of Maharashtra, 29 August 2012


Introduction


From earlier times, India has been the victim of numerous terrorist attacks. 26 November 2008 is recorded in their history as the black day. This was the day where a group of 10 trained Pakistanis infiltrated India illegally and carried in weapons to spread terror across Mumbai. The horrendous act left 166 people dead and 238 injured.

Facts of the case


The case is concerned with the death sentence levied on one of the convicted terrorists on 26 November in connection with the Mumbai terrorist attack in the Taj hotel. This resulted in 166 people being murdered and a further 238 people being injured, grievously. The victims included police officers, security workers, and foreigners. The damage to the property was estimated at over US$ 1.5 billion.

Ajmal Kasab and his companions entered India illegally, carried weapons and ammunition, fired indiscriminately, and killed hundreds of people. The militant organization Lashkar-e-Taiba, based in Pakistan, not only mastered, but also handled, instructed, and guided the terrorists. They were also attempting to wage war against the Government of India.


Issues

  1. Whether Ajmal Kasab had a free and fair trial before he was convicted?

  2. Whether it was appropriate to grant the death penalty to Kasab?

Judgment


An 11000-page charge sheet was filed against Kasab and two others before the Metropolitan Court of Esplanade on 25 February 2009. Kasab’s court began in Mumbai, India on 17 April 2009. Kasab retracted the confessions he had made to the leading Magistrate on the first day of his trial on the 20th and 21st of February 2009, claiming that they had done the act under duress. He also alleged at the time of the events, he was only 17 years old and was requested to be tried by the juvenile court. The court dismissed this last allegation on 29 April 2009 based on expert analyses and medical reports. The prosecution charged Kasab with 312 counts on 20 April 2009, notably the murder of 166 people, terrorist offenses, and the war against India, a crime punishable by death. The prosecution specified the charges on 6 May 2009 and lodged 86 charges against Kasab. 610 witnesses, documentary facts, and technical reports were submitted to the court in the next two months, and the main contribution among this evidences was the video footage of surveillance cameras at the train station. Kasab predictably pleaded guilty to all charges brought against him on 20 July 2009. The court found Kasab guilty of all charges on 6 May 2010 and sentenced him to death by hanging. The confirmation and appeal hearing commenced before the Bombay High Court on 18 October 2010. Kasab primarily argued that the trial court erroneously admitted his confession tape, that the jury was unfair, and that the prosecution either inaccurately or distorted some of the key evidence content. The Bombay High Court upheld his death penalty on 21 February 2011. Kasab appealed to the Supreme Court of India against the decision of the High Court. On 29th August 2012, the Supreme Court upheld the death sentence. India’s President rejected his plea of mercy on 5 November 2012 and Kasab was executed by hanging on 21 November 2012.


Analysis of the Case


Kasab court-appointed attorney S. G. Abbas Kazmi, because he was a juvenile, filed an inquiry under section 7(A) of the Juvenile Justice Act, 2001. The strength of democratic values was shown by ensuring a free trial of the Kasab. Kasab and his accomplices waged war on their political ‘jihad’ and Kashmir liberation purposes. But, under the internal rule, they cannot be treated as alien enemies, and the Indian constitution does not deprive anybody of their rights, even though they are alien. Under Article 22(1) and 22(2), Kasab enjoyed the same rights as an Indian citizen hence he received a free and fair trial.

Ajmal Kasab was sentenced to death under section 120(B) read in section 302 of the IPC, section 121 of the IPC and section 16 of the Law on Unlawful Activities (Prevention) Act, 1967. It was held that there was no scope for rehabilitation for a person who, in return, killed children, women, elderly people, and police officers. He also never showed any expression of guilt. Further, it was held that age could not always be the justification for a lesser penalty.


Conclusion


From the facts and given the possibility of the accused appellant’s reform being forbidden by his absence of remorse for the terrorist crimes committed, the Supreme Court believed the death penalty was fully justified.

ABOUT THE AUTHOR

Akshita Kesharwani is currently pursuing Law at Alliance University, Bangalore.

They can be contacted at akshitakesharwani06@gmail.com or

https://www.linkedin.com/in/akshita-kesharwani07aa511a4/?originalSubdomain=in

.Edited by: Swathi Ashok Nair

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