IMPORTANT POINTS
1. The freedom of expression, like all other freedoms under Article 19, is subject to reasonable restrictions. An action tending to violate another persons right to life guaranteed under Article 21 or putting the national security in jeopardy can never be justified by taking the plea of freedom of speech and expression.
2. The right to access to a lawyer in India is not based on the Miranda principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws.
3. The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing.
4. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute.
5. The protection of the privilege of the accused against self- incrimination is cast as a mandatory duty upon the magistrate, a judicial authority, under sub-sections (2), (3) and (4) of Section 164 of Crpc.
6. Voluntary statements are not proscribed by Article 20(3) and do not amount to violation of the privilege against self-incrimination.
7. The provisions of the CrPC and the Evidence Act fully incorporate the Constitutional guarantees, and that the statutory framework for the criminal process in India affords the fullest protection to personal liberty and dignity of an individual.
8. The transcripts are by no means any confessional statements made under arrest and they are fully covered by the provisions of Section 10 of the Indian Evidence Act.

Headnote:Indian Penal Code,1860-Section 120B read with Section 302 , Sections 121,34,109 - Unlawful Activities (Prevention) Act, 1967- Section 16 -Prosecution of appellant along with two others for engaging in conspiracy to wage war against the Government of India ,for collecting arms with the intention of waging war against Government of India, for waging and abetting the waging of war against the Government of India,for commission of terrorist acts,for criminal conspiracy to commit murder,for criminal conspiracy, common intention and abetment to commit murder ,for committing murder of a number of persons,for attempting to murder with common intention,for criminal conspiracy and abetment,for abduction for murder,for robbery/dacoity with an attempt to cause death or grievous hurt; and for causing explosions punishable under the Explosive Substance Act, 1908- Conviction by Trial Court awarding appellant death sentence on five counts, life-sentence on five other counts, as well as a number of relatively lighter sentences of imprisonment for the other offences-Trial Court however acquitted other two accused persons-Appeals thereagainst -Dismissed by High Court-Appeals- Evidence on record that terrorist attack on Mumbai was in pursuance of a larger conspiracy of which the appellant was as much part as the nine dead accused and the other wanted accused- Confession by the appellant was quite voluntary - No violation of any Constitutional or legal right of appellant in recording of the confession- No reason for not taking the confession into consideration to judge the charges against the appellant- Evidence sufficient to bring home the charges relating to conspiracy against appellant- Appellant rightly held guilty of waging war against the Government of India and rightly convicted under Sections 121, 121A and 122 of the Penal Code-Appeals dismissed (Paras 540 t0 553)
        Constitution of India,1950- Article 22 (1) -Denial of right to counsel at the earliest-Plea that appellant was not made aware of his Constitutional right to counsel under Article 22(1) of the Constitution at the time of his arrest and production before the Judicial Magistrate in remand proceedings-Appellant was offered a lawyer at the time of his arrest by the police officer making the arrest but he declined the offer- Appellant demanded to be represented by Pakistani lawyer- No question of any violation of any of the rights of the appellant under the Indian Constitution- Appellant was offered the services of a lawyer at the time of his arrest and at all relevant stages in the proceedings- Absence of a lawyer at the pre-trial stage was not only as per the wishes of the appellant himself, but that this absence also did not cause him any prejudice in the trial (Paras 494 to 497)
        Right against self-incrimination -Scope and ambit-Right against self-incrimination under Article 20(3) does not exclude any voluntary statements made in exercise of free will and volition-Right against self- incrimination under Article 20(3) is fully incorporated in the provisions of the CrPC (Sections 161, 162, 163 and 164) and the Evidence Act, 1872, as manifestations of enforceable due process, and thus compliance with these statutory provisions is also equal compliance with the Constitutional guarantees-The protection to the accused against any self-incrimination guaranteed by the Constitution is very strongly built into the Indian statutory framework -No reason to draw any help from the Miranda principles for providing protection against self- incrimination to the accused (Paras 454, 455, 468)
        Criminal Procedure Code,1973-Section 164- Confession -Admissibility of -The test to judge the Constitutional and legal acceptability of a confession recorded under Section 164 CrPC is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession- The true test is whether or not the confession is voluntary- If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 it has to be trashed- But if a confession is established as voluntary it must be taken into account, not only constitutionally and legally but also morally (Para 467)
        Constitution of India,1950-Article 21-Right to access to legal aid- Right to access to legal aid, to consult and to be defended by a legal practitioner, arises when a person arrested in connection with a cognizable offence is first produced before a magistrate- It is the duty and obligation of the magistrate before whom a person accused of committing a cognizable offence is first produced to make him fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at the expense of the State- The right flows from Articles 21 and 22(1) of the Constitution and needs to be strictly enforced (Para 484)
        Right of accused to be represented by lawyer-Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial- Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a lawyer before commencing the trial- Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused- But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial- It may have other consequences like making the delinquent magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid- But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial- That would have to be judged on the facts of each case (Paras 487 ,488)
        Transcripts - Admissibility of in evidence against appellant-Instantly phase of planning the attack and training for it, which form the core of the conspiracy, took place in Pakistan, and the terrorists, including the appellant, came to Mumbai in execution of the main objects of the conspiracy- The appellant was apprehended while he was on a killing spree in execution of the objects of the conspiracy and the transcripts of the phone conversation of the other terrorists, associates of the appellant and their foreign collaborators, relate to a time when the speakers were not only free but were actively involved in trying to fulfil the objects of the conspiracy- The transcripts are by no means any confessional statements made under arrest and they are fully covered by the provisions of Section 10 of the Indian Evidence Act- There was no reason not to take them into consideration in support of the charge of conspiracy against the appellant (Paras 534)
        Criminal Trial-Death Sentence-Whether justified-Plea that since appellants trial was compromised on due process he ought not be given the death sentence-Appellant joined the Lashkar-e-Toiba around December 2007 and continued as its member till the end, despite a number of opportunities to leave it- This showed his clear and unmistakable intention to be a part of the organization and participate in its designs- Even after his arrest he regarded himself as a "watan parast", a patriotic Pakistani at war with this country- Appellant never showed any remorse for the terrible things he did- This, forecloses the possibility of any reform or rehabilitation of appellant- The alternative option of life sentence hence held to be unquestionably excluded in the case of the appellant and death remained the only punishment that could be given to him-The only mitigating factor was the appellants young age, but that was completely offset by the absence of any remorse on his part- In the facts of the case ,hence held that death penalty was the only sentence that could be given to appellant- Appeals dismissed (Paras 581 to 587)
        Criminal Trial-Conspiracy to wage war against the Government of India-Instantly appellant was part of a conspiracy hatched across the border to wage war against the Government of India and lethal arms and explosives were collected with the intention of waging war against the Government of India- The conspiracy was to launch a murderous attack on Mumbai regarding it as the financial centre of the country; to kill as many Indians and foreign nationals as possible; to take Indians and foreign nationals as hostages for using them as bargaining chips in regard to the terrorists demands; and to try to incite communal strife and insurgency; all with the intent to weaken the country from within- For execution of the conspiracy, appellant and the nine other dead accused, his accomplices, were given rigorous and extensive training as combatants- The planning for the attack was meticulous and greatly detailed- The route from Karachi to Mumbai, the landing site at Mumbai, the different targets at Mumbai were all predetermined- The nature of the attack by the different teams of terrorists was planned and everyone was given clear instructions as to what they were supposed to do at their respective targets- All the terrorists, including the appellant, actually acted according to the previous planning- A channel of communication between the attacking terrorists and their handlers and collaborators from across the border, based on advanced computer technology and procured through deception, was already arranged and put in place before the attack was launched- This case has the element of waging war against the Government of India and the magnitude of the war is of a degree as in no other case- And the appellant was convicted on the charge, among others, of waging war against the Government of India (Paras 570 to 572)
       Facts of the Case :
        A sinister conspiracy was hatched in Pakistan and in furtherance of that conspiracy a savage attack was unleashed on Mumbai by a team of ten terrorists, including appellant , who landed on the citys shores via the Arabian Sea. The attack began on November 26, 2008 at about 9.15 PM and it ended when the last of the attackers, who was holed up in Hotel Taj Mahal Palace, was killed by Indian security forces at about 9.00 AM on November 29. The brutal assault left Mumbai scarred and traumatized and the entire country shocked. The terrorists killed one hundred and sixty-six (166) people and injured, often grievously, two hundred and thirty-eight (238) people.[1] The loss to property resulting from the terrorist attack was assessed at over Rupees one hundred and fifty crores (Rs. 150 Cr.). The dead included eighteen (18) policemen and other security personnel and twenty-six (26) foreign nationals. The injured included thirty-seven (37) policemen and other security personnel and twenty-one (21) foreign nationals. Of those dead, at least seven (7) were killed by the appellant personally, seventy-two (72) were killed by him in furtherance of the common intention he shared with one deceased accused no.1 and the rest were victims of the conspiracy to which he was a party along with the nine (9) dead accused and thirty-five (35) other accused who remain to be apprehended and brought to court.
        B.Trial Court convicted appellant for engaging in conspiracy to wage war against the Government of India ,for collecting arms with the intention of waging war against Government of India, for waging and abetting the waging of war against the Government of India,for commission of terrorist acts,for criminal conspiracy to commit murder,for criminal conspiracy, common intention and abetment to commit murder ,for committing murder of a number of persons,for attempting to murder with common intention,for criminal conspiracy and abetment,for abduction for murder,for robbery/dacoity with an attempt to cause death or grievous hurt; and for causing explosions punishable under the Explosive Substance Act, 1908.Appeals thereagainst were dismissed by High Court.
        C.Present appeals have been preferred against impugned judgement of High Court.
       Findings of the Court :
        A Evidence on record that terrorist attack on Mumbai was in pursuance of a larger conspiracy of which the appellant was as much part as the nine dead accused and the other wanted accused. Confession by the appellant was quite voluntary .There was No violation of any Constitutional or legal right of appellant in recording of the confession. No reason for not taking the confession into consideration to judge the charges against the appellant. Evidence was sufficient to bring home the charges relating to conspiracy against appellant. Appellant was rightly held guilty of waging war against the Government of India and was rightly convicted under Sections 121, 121A and 122 of the Penal Code.
        B.Appellant joined the Lashkar-e-Toiba around December 2007 and continued as its member till the end, despite a number of opportunities to leave it. This showed his clear and unmistakable intention to be a part of the organization and participate in its designs. Even after his arrest he regarded himself as a "watan parast", a patriotic Pakistani at war with this country.Appellant never showed any remorse for the terrible things he did. This, forecloses the possibility of any reform or rehabilitation of appellant. The alternative option of life sentence hence held to be unquestionably excluded in the case of the appellant and death remained the only punishment that could be given to him.The only mitigating factor was the appellants young age, but that was completely offset by the absence of any remorse on his part. In the facts of the case ,hence held that death penalty was the only sentence that could be given to appellant.
       Result : Appeals dismissed

Judgement Key Points

Key Points from the Judgment

Freedom of expression under Article 19 is subject to reasonable restrictions; actions violating Article 21 rights or national security cannot be justified by free speech claims. (!)
Right to counsel in India is not based on Miranda principles but on protections against self-incrimination embedded in Indian statutes. (!)
Criminal justice aims to uncover truth, not shield the accused from consequences. (!)
Courts must provide counsel at trial commencement unless accused clearly waives it; failure vitiates trial. (!)
Magistrate has mandatory duty under CrPC Section 164(2)-(4) to protect against self-incrimination. (!)
Voluntary statements do not violate Article 20(3); statutory framework fully protects constitutional rights. (!)
CrPC and Evidence Act provisions embody constitutional guarantees for liberty and dignity. (!)
Phone transcripts of co-conspirators qualify under Evidence Act Section 10 as non-confessional evidence. (!)
Appellant convicted of conspiracy to wage war (IPC Section 120B r/w 302, 121, 34, 109), terrorist acts (UAPA Section 16), and murders; death on five counts, life on five others upheld. (!) [judgement_act_referred]
No Article 22(1) violation; appellant offered counsel at arrest, declined, demanded Pakistani lawyer; no prejudice shown. (!)
Article 20(3) fully safeguarded by CrPC Sections 161-164; Miranda irrelevant. (!)
Confession under CrPC Section 164 voluntary if proven; test is voluntariness, not lawyer's hypothetical advice. (!)
Legal aid right arises on first production before magistrate; magistrate must inform accused of right to counsel at state expense if indigent. (!)
Absolute duty to provide trial counsel unless clear waiver; pre-trial failure may not vitiate unless prejudice shown. (!)
Transcripts admissible under Evidence Act Section 10 against appellant as co-conspirator evidence. (!)
Death sentence justified: appellant unrepentant Lashkar-e-Toiba member; no reform possible; youth offset by lack of remorse. (!)
Conspiracy involved waging war via Mumbai attacks to kill, hostage-take, incite strife; meticulous planning from Pakistan. (!)
Facts: 10 terrorists from Pakistan attacked Mumbai 26-29 Nov 2008; 166 dead (18 police, 26 foreigners), 238 injured; appellant killed 7 personally, 72 with accomplice. (!)
Trial court convicted appellant on all counts (death x5, life x5); acquitted Ansari/Ahmed; High Court upheld. (!)
Prosecution based on police investigation and appellant's voluntary Section 164 confession detailing conspiracy/preparation/execution. [1000516030007]
Magistrate insulated appellant from police, gave reflection time (24+48 hrs), ensured voluntariness; confession detailed family, Lashkar joining, training, sea journey, Mumbai attacks. [1000516030009]-[1000516030015]
Appellant detailed Lashkar induction (Dec 2007), trainings (Daura-e-Suffa, Amma, Khassa, Ribat, marine), selection for fidayeen attack, targets (CST/VTS, hotels, Nariman House), fake IDs, arms distribution. [1000516030023]-[1000516030073]
Sea journey: Karachi to Mumbai via Al-Hussaini, hijacked Kuber, killed navigator Solanki, landed Badhwar Park 26 Nov ~9PM. [1000516030071]-[1000516030083]
CST attack: planted bomb (failed), fired AK-47s/grenades, killed 52, injured 109; identified by multiple eyewitnesses/police. [1000516030102]-[1000516030157]
Cama Hospital: entered, fired/grenades, killed/injured several; terrace encounter. [1000516030158]-[1000516030185]
Killed police in Qualis (Karkare, Kamte, Salaskar), snatched Skoda, caught Vinoli Chowpaty; Ombale killed by appellant. [1000516030186]-[1000516030253]
Vile Parle taxi blast: appellant/Ismail's taxi bomb killed 2, injured 3. [1000516030254]-[1000516030260]
Other sites: Leopold (11 dead), Taj (36 dead), Oberoi (35 dead), Nariman (9 dead); total 166 dead. [1000516030272]-[1000516030290]
Arms: AK-47s, pistols, grenades, RDX from Pakistan; pink foam links sites. [1000516030291]-[1000516030358]
Intercepted calls: handlers guided attacks, exhorted jihad, deceived as Indian Muslims, celebrated kills. [1000516030359]-[1000516030400]
Kuber: hijacked Indian boat, Solanki killed; GPS/satellite phone recovered per appellant's disclosure. [1000516030315]-[1000516030344]
No due process violation; voluntary confession; lawyer offered at arrest/trial. [1000516030407]-[1000516030488]
Waging war: attack as foreign enemy action against Indian sovereignty. [1000516030534]-[1000516030552]
Death penalty: rarest of rare; no reform possible; upheld. [1000516030553]-[1000516030586]
Ansari/Ahmed acquitted: unreliable evidence. [1000516030587]-[1000516030596]

JUDGMENT

Aftab Alam, J.

1. The appellant, Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (hereinafter referred to as ‘the appellant’ or as ‘Kasab’), who is a Pakistani national, has earned for himself five death penalties and an equal number of life terms in prison for committing multiple crimes of a horrendous kind in this country. Some of the major charges against him were: conspiracy to wage war against the Government of India; collecting arms with the intention of waging war against the Government of India; waging and abetting the waging of war against the Government of India; commission of terrorist acts; criminal conspiracy to commit murder; criminal conspiracy, common intention and abetment to commit murder; committing murder of a number of persons; attempt to murder with common intention; criminal conspiracy and abetment; abduction for murder; robbery/dacoity with an attempt to cause death or grievous hurt; and causing explosions punishable under the Explosive Substance Act, 1908. He was found guilty of all these charges besides many others and was awarded the death sentence on five counts, life-sentence on five other counts, as well as a number of relatively lighter sentences of imprisonment for the other offences.

2. Apart from the appellant, two other accused, namely Fahim Ansari and Sabauddin Ahamed, both Indian nationals, were also arraigned before the trial court and indicted on the same charges as the appellant.

3. At the end of the trial, however, the appellant was convicted and sentenced to death as noted above (vide judgment and order dated May 3/6, 2010 passed by the Addl. Sessions Judge, Greater Mumbai in Sessions Case No. 175 of 2009). The other two accused were acquitted of all charges. The trial court gave them the benefit of the doubt as regards the charges of conspiracy and abetment of other offences by conspiracy, and further held that the prosecution completely failed to establish those other charges that were made directly against them.

4. The judgment by the trial court gave rise to a reference to the Bombay High Court under Section 366 of the Code of Criminal Procedure (CrPC), registered as Confirmation Case No. 2 of 2010. In addition to the reference, two appeals also came to the High Court from the judgment and order passed by the trial court, one by the appellant against his conviction and sentences (Criminal Appeal No. 738 of 2010) and the other by the State of Maharashtra against the acquittal of the other two accused (Criminal Appeal No. 606 of 2010). The High Court, by its judgment and order dated February 21, 2011, confirmed the death sentences given to the appellant by the trial court and dismissed both the appeals. The High Court upheld the judgment and order passed by the trial court in all material aspects: it sustained the appellant’s conviction and confirmed the punishments given him by the trial court, but at the same time it did not interfere with the acquittal of the other two accused.

5. From the judgment of the High Court two appeals have come to this Court: one is a jail appeal by Kasab and the other is by the State of Maharashtra. The State’s appeal seeks to challenge the acquittal of the other two accused by the trial court and affirmed by the High Court. The other two accused are impleaded in the State’s appeal as Respondents No. 1 and 2. Kasab was unrepresented in the appeal preferred by him from jail and this Court, therefore, appointed Mr. Raju Ramachandran, senior advocate, assisted by Mr. Gaurav Agrawal, to represent him. He was thus able to get legal assistance of a standard and quality that is not available to a majority of Indian nationals approaching this Court against their conviction and sentence.

6. We may also state here that since it is a case of death sentence, we intend to examine the materials on record first hand, in accordance with the time-honoured practice of this Court, and come to our own conclusions on all issues of facts and law, unbound by the findings

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