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Why Kasab should get minimum punishment

Last updated on: May 05, 2010 02:46 IST

During Tuesday's hearings in the high-profile 26/11 case, key accused Ajmal Kasab's counsel K P Pawar went full throttle, steadfastly -- at times flimsily though -- arguing why least possible punishment should be given to his client. Sheela Bhatt and Prasanna D Zore, who were in the court through the day, capture the dramatic day's proceedings alive. 

Also Read: Why Kasab should get death penalty

Mohammad Ajmal Kasab's lawyer K P Pawar on Tuesday took the help of noted criminologist and penologist Dr N V Paranjpe and noted professor Dr M J Sethna to plead with Judge Tahaliyani that his client be given least punishment in the 26/11 trial.

While explaining the basis of mitigating the quantum of sentence that is to be delivered on May 6, Pawar argued Tahaliyani should consider Kasab's case on humanitarian grounds.

Pawar pleaded that Jamat Ul dawa and Hafiz Saeed were imposing their views on his client. Arguing Kasab was "blindfolded" by religion, Pawar said Kasab indulged in violence for religious reasons.
 
He continued, "Kasab is from a poor family; he is young, unemployed, almost uneducated and he was under the influence of his handlers in Pakistan. He was also under pressure from mental and emotional disturbances and he was not a hardened criminal when Kasab, along with his accomplice Abu Ismail, unleashed a reign of terror at the Chhatrapati Shivaji Terminus killing 52 people."

Pleading to court that Kasab is not a hardened criminal who has no past records of crime and he can be reformed and rehabilitated, Pawar said, "His relatives are not living in "our society".

He also quoted the Supreme Court judgment that said, "Life imprisonment is the rule and capital punishment is the exception."

Pawar kept insisting to court that the circumstances of Kasab should be taken into account. His age was raw and mental disturbances impaired his capacity to judge criminality of his action.

However, Tahaliyani disputed the argument of "mental disturbance", saying Kasab himself has said that he "knocked the door of Jamat Ul dawa."
 
Pawar argued that Kasab had no personal enmity with victims only religion blindfolded him. But, Judge Tahaliyani said that's not true because he fired indiscriminately at the railway station.
 
Pawar also pleaded with the court that Kasab believed he was morally justified in doing what he did on the night of November 26, 2008 and was under duress and domination of his handlers in Pakistan.
 
Citing Dr Paranjpe's thesis extensively on hardened criminals, Pawar pleaded before the Judge to consider the above mitigative circumstances.

If one goes by Dr Paranjpe's thesis on hardened criminal versus incidental criminals then Kasab could not be considered as a hardened criminal because the prosecution had failed to prove that Kasab had committed a series of criminal activities before the 26/11 carnage in Mumbai.

According to Dr Paranjpe's thesis, people fall prey to passion, anger and excitement and commit murders during agrarian riots and class conflicts, but these people who indulge in such murders could not be considered as hardened criminals.

Dr Paranjpe had also categorised criminals who indulge in criminal activities because they fall prey to religious, political, cultural and ethnical biases and acting under the influence of these biases indulge in murders and rioting.

Pawar stressed that since he is young there is scope for reform and rehabilitation. He is not threat to society in future. Importantly, Judge Tahaliyani asked Pawar, "Has he (Kasab) instructed you to say that he is repenting?" When Pawar replied in negative, the Judge said, "Then what?"

Pawar wanted to convey to the court through his arguments that Kasab had fallen prey to religious enmity etched in his mind by his masters in Pakistan by showing him tapes of Godhra incident in Gujarat and atrocities committed against Muslims in Kashmir.

However, Public Prosecutor Ujwal Nikam contested the claim, saying the Gujarat riots never affected Kasab.

Judge Tahaliyani intervened, saying, "No court would accept this argument. How can anyone come like this and challenge the country?"
 
Pawar also cited Dr M J Sethna's study that was drawn after researching 507 cases of homicides which concluded that only 26.28 per cent of such cases were pre-meditated, but 73.72 per cent of homicide cases non-pre-meditated.

He was trying to put forth that majority of homicide cases were non-pre-meditated and there could perhaps be the case for considering Kasab's acts as non-pre-meditated so that it could fall under the mitigative circumstances category.

While Nikam drew heavily on Machhi Singh and Others versus state of Punjab case of 1983 and Bachchan Singh and Others versus state of Punjab case of 1980 to show why aggravating circumstances in Kasab's case far outweighed mitigating circumstance, Pawar, too, extensively drew upon the same cases to plead before the judge that the Supreme Court had guidelines asked for a balance sheet to be drawn of aggravating and mitigating circumstances before arriving at a decision to award death penalty.
 
(This is what the Supreme Court Bench comprising Justice M P Thakkar, Syed Murtaza Fazalali and A Varadarajan had held while identifying "rarest of rare cases" which could then form the basis of capital punishment).

See the external link of the case: (http://www.indiankanoon.org/doc/545301/

Excerpts from the case:

The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception.

In other words, the death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
 
The earlier judgment said, "A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

And this was the gist of Pawar's arguments on Tuesday in favour of his client Kasab.
 
For Pawar other mitigating factors in Kasab's favour could be the fact that the prosecution had failed to provide any documentary evidence of Kasab's correct age and proof that could indicate that Kasab would indulge in acts of violence in future if minimum punishment is given.

The counsel argued that religious considerations blindfolded Kasab's sense of judgment and the latter had no knowledge of the implications of his actions. He hoped that Kasab would know his "real religion" and would improve.

Summing up his arguments, Pawar said in his defence, "We are civilized society. Retributive intention should not be there."

Sheela Bhatt & Prasanna D Zore in Mumbai
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