AJN 141210-CRI-APPLN3.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3 OF 2010 IN CONFIRMATION CASE NO.2 OF 2010 ALONG WITH CRIMINAL APPEAL NO.738 OF 2010 The State of Maharashtra. ... Complainant Vs. Mohammed Ajmal Amir Kasab. ... Applicant-Accused Mr. Ujjwal Nikam, Special Public Prosecutor with Mr. Shahajirao Shinde, Additional Public Prosecutor for the complainant. Mr. Amin Solkar with Ms. Farhana Shah appointed advocates for the applicant-accused. CORAM: MRS. RANJANA DESAI & RANJIT V. MORE, JJ. DATED : 15TH DECEMBER, 2010. P.C.:- 1. When the hearing of the confirmation case and the appeal filed by A1-Kasab was almost concluded and rejoinder of learned Special Public Prosecutor was about AJN 141210-CRI-APPLN3.10 2 to end, an application is preferred on behalf of A1-Kasab praying that this court may refer him to a Medical Board consisting of eminent psychologists to obtain a report on the psychological profile, mental state and motivations of A1-Kasab and that this court may commission a home study report of A1-Kasab through NGOs working jointly in India and Pakistan. 2. We have heard Mr. Solkar, learned counsel for A1- Kasab, at some length. The basic reliance of Mr. Solkar is on Section 235(2) of the Code of Criminal Procedure, 1973 (for short, “the Code”). Section 235 of the Code reads as under: “235. Judgment of acquittal or conviction. - (1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.” AJN 141210-CRI-APPLN3.10 3 3. Mr. Solkar submitted that on 3/5/2010, learned Sessions Judge convicted A1-Kasab and adjourned the hearing on the point of sentence to 4/5/2010. The Rozanama of 4/5/2010 shows that the arguments of both sides on sentence were heard and the matter was adjourned to 6/5/2010 for final orders. On 6/5/2010, final order on sentence was passed and A1-Kasab was, inter alia, sentenced to death. Mr. Solkar submitted that it was obligatory for learned Sessions Judge to give A1-Kasab more time to reflect on his conviction. He submitted that a day’s time can hardly be described as adequate opportunity. He submitted that A1-Kasab having been convicted, inter alia, for offence under Section 302 of the Indian Penal Code (for short, “the IPC”) for several murders, he must be obviously under mental shock and, therefore, learned Sessions Judge should have given him sufficient time to come out of the mental shock of conviction and then address the court on the point of sentence. Learned Sessions Judge should have followed Section 235(2) of the Code in letter and spirit. Relying on AJN 141210-CRI-APPLN3.10 4 the judgments of the Supreme Court to which we shall soon advert, counsel submitted that learned Sessions Judge has acted contrary to law laid down by the Supreme Court and, thus, has caused great injustice to A1-Kasab. Mr. Solkar also submitted that if this court comes to a conclusion that indeed A1-Kasab is guilty of mass murders and other offences, then from the manner in which the offences are alleged to have been committed, it is apparent that they were committed at the instance of his handlers in Pakistan. A1-Kasab was merely used as a tool. There is no indication in the evidence that he acted on his own. He submitted that A1-Kasab was brainwashed and, therefore, his mental and psychological condition needs to be examined. It is possible, submitted Mr. Solkar, that on account of unstable mental condition and acting under some psychological stress, the offence has been committed. Mr. Solkar submitted that inquiry as to his mental condition is, necessary from the point of view of the sentence which this court would impose on A1- Kasab in case it concurs with learned Sessions Judge that AJN 141210-CRI-APPLN3.10 5 A1-Kasab has indeed committed the crimes. 4. In support of his submissions, Mr. Solkar has placed reliance on the judgments of the Supreme Court in Durga Domar v. State of M.P. (2002) 10 SCC 193, Ram Deo Chauhan alias Raj Nath Chauhan v. State of Assam, AIR 2001 SC 2231 and Jagdish v. State of Madhya Pradesh (2009) 9 SCC 495. Counsel also relied on the judgment of Justice A.K. Ganguly in Rameshbhai Chandubhai Rathod v. State of Gujarat (2009) 5 SCC 740. It must be noted at this stage that in this case, there was difference of opinion between two learned Judges of the Supreme Court on the point of sentence and the matter was referred to a Larger Bench. Certain observations made by Justice Ganguly are pointed out to us. We are informed that the Reference is pending in the Supreme Court and final judgment is not yet delivered. It is also necessary to note that considering the fact that it is a differing judgment, Mr. Solkar restricted his reliance to the judgments of the Supreme Court quoted by Justice Ganguly in his judgment and not AJN 141210-CRI-APPLN3.10 6 his Lordship's observations. 5. Mr. Nikam, learned Special Public Prosecutor, on the other hand submitted that the judgments in Durga Domar and Ram Deo Chauhan are not applicable to the present case because in those cases, the sentence rested on circumstantial evidence. There was no motive and the accused was caught near the dead bodies of the victims and, therefore, it was expressed that there must have been some provocation which persuaded the accused to take such extreme step. Mr. Nikam submitted that such are not the facts in this case and, therefore, the above judgments are not applicable to it. Mr. Nikam submitted that in this case, the sentence was not declared on the same day. A day’s time was given to A1-Kasab and his counsel to apply their mind to the order of sentence. He submitted that no time was asked for either by A1-Kasab or his counsel from learned Sessions Judge. He submitted that there is sufficient compliance of Section 235(2) of the Code. Mr. Nikam drew our attention to the proviso to AJN 141210-CRI-APPLN3.10 7 Section 309 of the Code. Section 309 relates to power of the court to adjourn the proceedings. The proviso on which Mr. Nikam has placed reliance states that no adjournment shall be given for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Counsel submitted that despite this proviso, learned Sessions Judge did grant a day's time and that should be treated as sufficient compliance in the facts and circumstances of this case. 6. Mr. Nikam placed reliance on the affidavit in reply filed by Ramesh Mahale, Senior Inspector of Police attached to DCB, CID, Unit-I, Mumbai, in which it is stated that he was the Deputy Chief Investigating Officer of the case. He has stated that during the investigation as well as during the trial, A1-Kasab was mentally fit and was alert and was also giving instructions on many occasions to his lawyer in the trial court; that A1-Kasab also took various defences during his examination under Section 313 of the Code and made several allegations against the AJN 141210-CRI-APPLN3.10 8 Investigating Officers while retracting his confessional statement and plea of guilt and that the conduct of A1- Kasab during the investigation and during the trial did not show any symptoms of metal illness and, on the contrary, he was very alert about his rights as an accused person. Mr. Nikam submitted that in view of this, there is absolutely no need to get any report from any NGOs either from Pakistan or from India or any other report from Medical Board about the psychological profile and mental state of A1-Kasab. He submitted that this is an attempt to delay the hearing of the confirmation case and, this court, should not entertain this application. 7. We have already noted that learned Session Judge delivered the order of conviction on 3/5/2010 and adjourned the case to 4/5/2010 for hearing as to sentence. The Rozanama shows that learned Sessions Judge had heard counsel for A1-Kasab and learned Special Public Prosecutor on sentence. Learned Sessions Judge then adjourned the case to 6/5/2010 on which day he AJN 141210-CRI-APPLN3.10 9 passed the final order of sentence. We do not find any noting made by learned Sessions Judge that either A1- Kasab or his counsel made any application that they should be given further time as they wanted to address the court on the point of sentence nor is it urged before this court that indeed such an application was made and learned Sessions Judge rejected it. Nothing prevented A1- Kasab or his counsel from asking for time. Admittedly, both were present in the court. 8. We shall now refer to the judgment on which Mr. Solkar has placed reliance. So far as Durga Domar is concerned, it is specifically observed by the Supreme Court that there was no motive evident for the massacre. All the five children who were killed were close relatives of the accused. Learned Judges observed that looking at the conspectus of the facts of the case, they had a feeling that they should first exercise their mind on the question whether the accused was mentally sound or not at the relevant time. The Supreme Court further observed that AJN 141210-CRI-APPLN3.10 10 the accused had no occasion to communicate to his counsel and consequently, counsel who had defended the case would not have had any occasion to ascertain the mental disposition of the accused either at the relevant time or during the succeeding periods. Such are not the facts here. In this case, learned Sessions Judge had ensured that the services of counsel are made available to A1-Kasab. A1-Kasab had all the opportunity to communicate with him. Learned Judge in the facts of the case appears to have felt no need to find out whether the accused was mentally sound or not. From the nature of the crimes and the attendant circumstances, we are also unable to form an opinion that A1-Kasab was not mentally sound when he committed the offence. Durga Domar is, therefore, not applicable to the present case. 9. In Ram Deo Chauhan also, the case rested on circumstantial evidence. After committing murders of four inmates of the house, the accused continued to remain in the house. It appears that during the pendency of the appeal, it was suggested that the appellant- AJN 141210-CRI-APPLN3.10 11 accused might have been deprived of his senses at the time of occurrence or caused the deaths on account of sudden provocation. The Supreme Court observed that as the accused had been convicted and sentenced to death, in the interest of justice, a report was called from the expert as regards his mental condition. Undoubtedly, therefore, it is the court dealing with the case which has to form an opinion whether it is necessary to call for a report from a medical officer to ascertain whether a person could be deprived of his senses at the time of occurrence of offence. Not in all cases, we feel that routinely such course is to be followed. We reiterate that the facts of this case do not warrant referring A1-Kasab to an expert to find out whether he was mentally ill when he committed the offence. 10. In Jagdish, when the appeal came up for hearing, a reference was made to Section 84 of the IPC. The Supreme Court observed that the benefit of this provision is available to a person who at the time when the act was done was incapable of knowing the nature of his act or AJN 141210-CRI-APPLN3.10 12 that what he was doing was wrong or contrary to law. It is pertinent to note that shaken by the sheer brutality of the crime, the Supreme Court at the stage of special leave petition felt that only a person of unsound mind could commit such a horrendous crime and it was thought prudent to have the matter re-examined and status report about the mental condition of the accused was called for. Thus, the view or the opinion of the court which is dealing with a person sentenced to death, is important. Indeed, if a court gets a feeling on the facts which are before it that the accused could have been of unsound mind at the time when he committed offence, it would be the duty of the court to call for a report about his mental state. In the facts before us, it is impossible to form an opinion that A1- Kasab could be of unsound mind when he committed the offence. Besides, in Jagdish also, there was no motive and the case depended entirely on circumstantial evidence. Jagdish, therefore, has no application to the present case. 11. We may now refer to the judgment of Supreme Court AJN 141210-CRI-APPLN3.10 13 in Rameshbhai Chandubhai Rathod. As already noted by us, in this case, two learned Judges of the Supreme Court differed on the question of sentence. Reference is made to a larger bench and judgment of the Supreme Court is awaited. Mr. Solkar has, therefore, relied on the Supreme Court judgments to which Justice Ganguly has made a reference in his judgment. We shall refer to those judgments. 12. Mr. Solkar pointed out two mitigating circumstances laid down by the Supreme Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684. They are as under : (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society; (4) The probability that the accused can be reformed and rehabilitated. 13. Mr. Solkar submitted that the Supreme Court has stated that the State must prove, by adducing evidence, that the accused does not satisfy clauses (3) and (4) of AJN 141210-CRI-APPLN3.10 14 the mitigating circumstances reproduced hereinabove. Thus according to Mr. Solkar, the State should have led evidence to prove that the accused would not commit criminal acts of violence in future and that there is all possibility that he can be reformed and rehabilitated. Mr. Solkar then referred to Section 235(2) of the Code and stated that Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre- sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlying Section 354(3) of the Code, a bearing on the choice of sentence. Mr. Solkar drew our attention to the observations of the Supreme Court that the court should not confine its consideration “principally” or “merely” to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal. Mr. Solkar also relied on the observations of the Supreme Court in Bachan Singh that the judges AJN 141210-CRI-APPLN3.10 15 should never be bloodthirsty and it is imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by the Supreme Court will discharge the onerous function with evermore scrupulous care and humane concern. 14. Mr. Solkar also drew our attention to the relevant observations in Muniappan 1981 SCC (Cri.) 617 that the Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. 15. Mr. Solkar also relied on Allauddin Mian v. State of Bihar, 1989 SCC (Cri.) 490 where the Supreme Court has referred to Section 235(2) of the Code and observed that the said provision satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time, helps the court to choose the sentence to be awarded. The Supreme Court has further observed that since the provision is intended to give the AJN 141210-CRI-APPLN3.10 16 accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence, there can be no doubt that the provision is salutary and must be strictly followed. Mr. Solkar submitted that this provision is clearly mandatory and should not be treated as a mere formality. 16. Mr. Solkar also relied on Malkiat Singh v. State of Punjab 1991 SCC (Cri.) 976 where the Supreme Court has held that hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as to the accused to place before the court facts and material relating to various factors on the question of sentence, and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. The Supreme Court has held that sufficient time must be given to the accused or the prosecution on the question of sentence. AJN 141210-CRI-APPLN3.10 17 17. Mr. Solkar also referred to yet another passage from Bachan Singh and stated that the Judges should not take upon themselves the responsibility of becoming oracles or spokesmen of public opinion: Not being representatives of the people, it is often better, as a matter of judicial restraint, to leave the function of assessing public opinion to the chosen representatives of the people in the legislature concerned. 18. There can be no dispute about the propositions laid down by the Supreme Court. But we will have to confine ourselves to the prayers made in the application. The opinion expressed by the Supreme Court in the above judgments on the larger issues will have to be taken into consideration while dealing with the issue of sentence. Therefore, judgments in which other issues, apart from the requirement of medical examination of an accused, are involved need not be discussed at this stage. At the appropriate time, we can refer to them. We do not and cannot dispute that the accused must be given sufficient AJN 141210-CRI-APPLN3.10 18 opportunity to think and to consider the implications of the conviction and then advance arguments on sentence. It is true that as per second proviso to Section 309 of the Code, no adjournment should be granted for the purposes only of enabling the accused person to show cause against the sentence proposed to be imposed on him. But in the interest of the accused, we have kept aside this proviso and examined his case. We are of the opinion that learned Sessions Judge has not acted contrary to the view expressed by the Supreme Court. He has not ignored Section 235(2) of the Code. At the cost of repetition, we state that he did not declare the sentence on the very same day on which he declared the conviction. He gave a day's time to A1-Kasab and his lawyer. We have been informed that A1-Kasab was present in the court all throughout and so was his counsel. Nothing prevented him from asking further time from the court. No further time was sought. In the absence of such a prayer, we are not inclined to accept Mr. Solkar's submission that learned Sessions Judge was hasty or that AJN 141210-CRI-APPLN3.10 19 he did not give sufficient opportunity to A1-Kasab to apply his mind to the order of conviction or to come out of the shock of conviction. Indeed, A1-Kasab or his counsel could have requested the court that they wanted to lead evidence to prove that A1-Kasab would not commit criminal act of violence as would constitute a continuing threat to society or that he could be reformed and rehabilitated in the light of mitigating circumstances (3) and (4) as laid down in Bachan Singh. No such prayer was made and, hence, there was no question of learned Sessions Judge adjourning the matter for that purpose. 19. Having gone through the evidence on record and having read the confessional statement of A1-Kasab, we are not inclined to come to the conclusion that A1-Kasab needs to be examined by a Medical Board to find out whether he was mentally ill when he committed the offence or when he was put up for trial. This is a case which does not depend on circumstantial evidence unlike the cases on which Mr. Solkar has placed reliance. We AJN 141210-CRI-APPLN3.10 20 have before us evidence of eye-witnesses and several injured persons. We have before us circumstantial evidence and confessional statement of A1-Kasab. This is not a case were there is absence of motive. We must also mention that A1-Kasab has in his plea very cleverly changed his version from confessional statement and tried to take lesser role to himself and that plea was also subsequently retracted. In his statement under Section 313 of the Code, A1-Kasab has come out with a totally new case and he has said that he was not arrested by the police from Chowpaty but he was arrested by RAW and the injuries were inflicted by the police. These are not the signs of a person who is mentally ill. He has been cleverly changing his version. Apart from this, we must mention that when the hearing of the case began, A1-Kasab availed of the facility of video linkage. He appeared on the video linkage and talked to us. He expressed that he would like to remain present in the court. We explained to him the reasons why it is not possible for him to remain present in the court. We told him that we have passed a AJN 141210-CRI-APPLN3.10 21 reasoned order in the presence of his lawyer. When we had a dialogue with A1-Kasab, his lawyer was present in the court. A1-Kasab made a grievance about the justice delivery system in India and clearly told us that we should send him outside India to face the trial. We were completely satisfied that he was in proper frame of mind and perfectly sane. We watched his demeanor carefully. He did not appear to be imbalanced and he knew what he wanted. It is significant to note that when the hearing of the confirmation case and the appeal filed by A1-Kasab was almost concluded, A1-Kasab instructed his counsel to make two applications. One application was that he was a juvenile and his age may be re reconfirmed knowing full well that the said prayer was rejected by learned Sessions Judge by a reasoned order, after he was examined by a team of doctors. 20. This is one of the two applications made at the fag end of the hearing. The time at which these applications are made also indicates that there is nothing wrong with AJN 141210-CRI-APPLN3.10 22 A1-Kasab. He has instructed his lawyer to make these applications so that the hearing of his confirmation case will be delayed. In the peculiar facts and circumstances of the case, we are, therefore, of the opinion that absolutely no case is made out to refer A1-Kasab to a Medical Board consisting of eminent psychologists to obtain a report on his psychological profile, mental state and motivations. No case is also made out to commission a home study report of A1-Kasab through NGOs working jointly in India and Pakistan. 21. Application is rejected. [MRS. RANJANA DESAI, J.] [RANJIT V. MORE, J.]