Bombay HC admits Kasab`s appeal against death

The Bombay HC today admitted an appeal filed by Ajmal Kasab challenging the death sentence.

Mumbai: The Bombay High Court today
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 October 6 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 November 26, 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.