[2012] 8 S.C.R. 295 296 SUPREME COURT REPORTS [2012] 8 S.C.R. MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ A A acquitted A-2 and A-3 of all the charges - Unlawful Activities ABU MUJAHID (Prevention) Act, 1967 - s.16. v. STATE OF MAHARASHTRA ss. 120-B, 121, 121-A and 302 - Criminal conspiracy and (Criminal Appeal Nos. 1899-1900 of 2011 etc.) conspiracy to wage war against Government of India - B B Terrorists' attack in furtherance of conspiracy to wage war AUGUST 29, 2012 against Government of India - 10 terrorists dividing [AFTAB ALAM AND CHANDRAMAULI themselves in 5 teams of 2 each and attacking at targeted KR. PRASAD, JJ.] places in Mumbai - Plea that appellant's case should be considered only with respect to the incidents in which he was personally involved - Held: In view of the incidents at the PENAL CODE, 1860: C C venues of terrorists' attack and the conspirators across the ss. 302, 302 read with s.34 and s.302 read with ss.109, border being in constant contact with terrorists, it is obvious 120-B,121, 121-A and 122 IPC and s.16 of Unlawful Activities that all the ten terrorists were bound together and each team (Prevention) Act, 1967 - 26/11 (2008) terrorists' attack on was acting in execution of a common conspiracy - In view of Mumbai at targeted places by appellant (A-1) along with 9 the enormous evidence of all possible kinds including the D D other terrorists (dead accused), in furtherance of a conspiracy recoveries made, it is clear that the terrorists' attack on to wage war against Government of India - 166 people killed Mumbai was in pursuance of a larger conspiracy of which the and 238 injured - Trial court holding the appellant guilty of appellant was as much part as the 9 dead accused and other the offences charged and awarding him five death sentences wanted accused persons - The attacks at all the targets were - Convictions and sentences confirmed by High Court - Held: integrally connected with each other and the appellant and his On the basis of ocular evidence alone, the appellant E E deceased accomplice are as much part of the offences personally and jointly with deceased accused-1 (DA-1) is committed at other places as they are responsible for the directly responsible for killing 72 persons and causing injuries offences committed by them directly - The most clinching of various kinds to 130 persons - He was also found guilty evidence regarding conspiracy comes from recording of along with other dead accused as a co-conspirator - intercepted telephone calls between the terrorists and their co- Conviction and sentences awarded by trial court and F F conspirators and collaborator sitting in a foreign land, which confirmed by High Court are affirmed - As regards A-2 and in the light of all facts and circumstances of the case can only A-3, when the attack on Mumbai took place, they were in be Pakistan - Evidence Act, 1872 - s.10. custody of U.P. Police in connection with a different terrorist ss.121, 121-A and 122 - "Waging war against the attack - Both the courts have analyzed the prosecution Government of India" - Conspiracy -Terrorists' attack on evidence in regard to A-2 and A-3 at great length and have G G Mumbai - Expressions "offences against the State" and "in given very good reasons to hold the prosecution evidence like manner and by like means as a foreign enemy would do" unworthy of reliance with respect to such grave charges - Connotation of - Held: The expression "Government of against the two accused - Both the courts have rightly India", as appearing in s.121, must be held to mean the State or interchangeably the people of the country as the repository 295 H H MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU 297 298 SUPREME COURT REPORTS [2012] 8 S.C.R. MUJAHID v. STATE OF MAHARASHTRA of the sovereignty of India which is manifested and expressed A A the borer - It has a magnitude of unprecedented enormity on through the elected Government - It does not matter that the all scales - In terms of loss of life and property and, more target assigned to the appellant and DA-1 was a public importantly in its traumatizing effect, this case stands alone building where they killed a large number of people - What or atleast it is the very rarest of rare to come before the Court matters is that the attack was aimed at India and Indians - It since the birth of republic - Therefore, it should also attract was by foreign nationals - People were killed for no other B B the rarest of rare punishment - Appellant never showed any reason than they were Indians - In case of foreigners, they repentance or remorse, which is the first sign of any possibility were killed because their killing on Indian soil would of reform and rehabilitation - The only mitigating factor is embarrass India - The conspiracy, in furtherance of which the appellant's young age, but that is completely offset by the attack was made, was, inter alia, to hit at India; to hit at its absence of any remorse on his part and the resultant finding financial centre; to try to give rise to communal tensions and C C that in his case, there is no possibility of any reformation or create internal strife and insurgency; to demand that India rehabilitation - In the facts of the case, death penalty is the should withdraw from Kashmir; and to dictate its relations with only sentence that can be given to the appellant - The other countries - It was in furtherance of those objectives that convictions and sentences of the appellant passed by trial the attack was made, causing the loss of a large number of court and confirmed by High Court are affirmed. people and injury to an even greater number of people - D D Nothing could have been more "in like manner and by like CONSTITUTION OF INDIA, 1950: means as a foreign enemy would do" - Appellant has been Arts. 20(3), 21 of the Constitution and s.164, CrPC - Right rightly held guilty of waging war against Government of India against self-incrimination - Voluntary confession - Held: Right and rightly convicted u/ss 121, 121-A and 122 - Death penalty against self-incrimination under Art.20(3) has been statutorily for an offence u/s 121, upheld - International Law. E E incorporated in the provisions of ss.161, 162, 163 and 164 SENTENCE/SENTENCING: CrPC and the Evidence Act, as manifestations of enforceable due process, and thus compliance with statutory provision is Terrorists' attack on Mumbai - Trial court sentencing the also compliance with constitutional requirements - Right appellant to death - High Court confirming the sentence - against self-incrimination under Art. 20(3) does not proscribe Held: The case has shocked the collective conscience of F F voluntary statements made in exercise of free will and volition Indian people - It was a case of waging war against - Code of Criminal Procedure, 1973 - ss.161, 162, 163 and Government of India - The number of persons killed and 164 - Evidence Act, 1872 - ss.25, 26 and 32. injured is staggeringly high - The number of policemen and security forces killed and injured in the course of their duty Arts. 21, 22(1), 39-A of the Constitution, and ss. 303 and by the appellant and his accomplice and 8 other co- 304 CrPC - Right to consult and be defended by a legal G G conspirators would hardly find a match in any other cases - practitioner - Held: Right of person accused of an offence to The offence committed by the appellant show a degree of access to legal aid, to consult and to be defended by a legal cruelty, brutality and depravity as in very few other cases - The practitioner arises when a person arrested in connection with appellant and his co-conspirators used highly lethal weapons a cognizable offence is first produced before a magistrate - It and explosives - It is a case of terrorists' attack from across needs to be clarified that the right to consult and be defended H H MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU 299 300 SUPREME COURT REPORTS [2012] 8 S.C.R. MUJAHID v. STATE OF MAHARASHTRA by a legal practitioner is not to be construed as sanctioning A A Evidence Act fully incorporate the Constitutional guarantees, or permitting the presence of a lawyer during police and that the statutory framework for the criminal process in interrogation, as the role of a lawyer is mainly focused on court India affords the fullest protection to personal liberty and proceedings - Accused would need a lawyer to resist remand dignity of an individual, but the Court takes judicial notice that to police or judicial custody and for granting of bail; to clearly there is a great hiatus between what the law stipulates and the explain to him the legal consequences in case he intended B B realities on the ground in the enforcement of the law - It is the to make a confessional statement in terms of s.164 CrPC, to duty and obligation of the magistrate to make the accused represent him when the court examines the charge-sheet fully aware that it is his right to consult and be defended by a submitted by the police and decide upon the future course of legal practitioner and, in case he has no means to engage a proceedings and at the stage of the framing of charges; and, lawyer of his choice, that one would be provided to him from for the trial - The right to access to a lawyer flows from the C C legal aid at the expense of the State - The right flows from provisions of the Constitution and the statutes, and is only Arts.