HC admits Kasab's appeal against death sentence

HC admits Kasab's appeal against death sentence

The Bombay High Court has admitted an appeal filed by Pakistani terrorist Ajmal Kasab challenging the death sentence awarded to him for his role in the 26/11 terror attacks.

Justices Ranjana Desai and R V More said the appeal would be heard along with the matter pertaining to confirmation of death sentence imposed on Kasab by the trial court for killing 166 people in the dastardly attacks.

The judges, however, deferred till 6^th October their ruling on who should be asked to open arguments -- the state or the defence.

The bench said there are judgements to show that the prosecution should open the arguments first and then the convict would have an opportunity to defend himself.

Kasab's lawyer Amin Solkar said the state should argue first on confirmation of death sentence and he would follow later with submissions on appeal filed by his client.

However, government counsel Ujjwal Nikam argued that precedents in judgements cited by the court were wrong and said that it were the defence who should start arguments on appeal.

He said logically it should be the appeal which should be decided first and only if it fails the question of confirmation of death sentence would come up.

Kasab has sought acquittal on 57 grounds saying he had been wrongly convicted as the judge had erred in law by not properly appreciating evidence.

He said eyewitnesses had identified him in the court because his photographs appeared in media immediately after the incident.

Eyewitnesses, who had identified Kasab as a terrorist committing terror act on 26^th November 2008, have contradicted each other on material and vital aspects of the prosecution's case, the 25-page appeal argued.

Kasab's appeal said his confession had been accepted partially by the trial judge who had erred in doing so.

A confession has to be either fully accepted or discarded and cannot be accepted on a piece-meal basis. He also denied that it was true and voluntary.

The appeal said the trial court had failed to consider that the alleged confession of Kasab was just a narration of events giving entire history instead of admission of his guilt and therefore cannot be termed as a confession but rather a statement before police which is hit by section 162 of CrPc.

Kasab said the trial judge had failed to consider that he had retracted his confession.

Moreover, the confession was recorded in the chambers of the Magistrate and not in open court where the atmosphere is free from any force or pressure.

The appeal said the trial court had failed to consider that the conspiracy, hatched in Pakistan, was to kill maximum number of foreigners belonging to America, Britain and Israel and accordingly four targets were chosen.

Hence, the question of attacking sovereignty of India to overawe the government or wage war against the nation did not arise.

Kasab's appeal said that media photographer Sebastian D'souza, who had taken over 100 photographs of the incident, had admitted in the cross-examination that his pictures had appeared in newspapers and television on the next day.

This admission wipes out identification parade and subsequent identification of Kasab in the court by witnesses.

The appeal said the trial judge had erred in relying upon evidence of Central Railway announcer Vishnu Zende, who said he had seen terrorist Kasab creating mayhem at CST railway station.

Police had delayed in recording Zende's statement and this created doubts about him having seen Kasab.

The Pakistani gunman said in his defence that Zende had deposed saying he had seen him (Kasab) throwing away a haver-sack bag while loading rifle.

This contradicts evidence of witness Chandrakant Tikhe, a lift operator at Cama hospital, who said Kasab was carrying a bag when he came to hospital from CST.

Another photographer Sriram Vernekar also said in evidence that he had seen both terrorists carrying bags on their shoulders while climbing down the staircase outside CST.

This contradicts evidence of Zende who said Kasab had thrown away the bag he was carrying.

The prosecution has said 21 out of 36 CCTV cameras installed at CST were not functioning on the day of the incident.

Hence, the possibility of footages of some other persons other than Kasab cannot be ruled out, the appeal said.

HC rejects Kasab's plea for closed-door interview with lawyers

Taking note of the past records and aggressive behaviour of Pakistani terrorist Ajmal Kasab, the Bombay High Court on Wednesday rejected his plea for a closed-door meeting with lawyers to take a stand on the confirmation of death sentence awarded to him for his role in the 26/11 attacks.

Justices Ranjana Desai and R V More, while dismissing the plea, said they had viewed a CD of CCTV footage submitted by Government Counsel Ujjwal Nikam which showed Kasab attacking prison personnel on 1st September and also considered the past experiences of Kasab on his aggressive posture in jail.

"Threat perception to Kasab cannot be questioned by this court in a case of this nature....National interest and safety outweighs all other considerations. Therefore, we reject Kasab's prayer seeking legal interview not within the hearing distance of jail staff and police," the two-judge bench observed.

Kasab's lawyer Amin Solkar argued that enough security had been provided in and around the jail where Kasab is lodged and said his client wanted to give him instructions in a free atmosphere and not in the presence of police and jail staff.

Nikam objected to Kasab's plea, saying he was a trained commando, and with swift movements he could pose a danger to his own life as well as to jail guards.

Presence of jail staff was necessary to control his aggressive movements.

He submitted confidential reports about Kasab's behaviour in jail during the trial and thereafter.