Baig files appeal in HC against death sentence - Pune sessions court had handed down five-time death sentence to the Indian Mujahideen operative from Beed two months ago

Vijay ChavanPosted On Friday, June 21, 2013 at 08:06:04 AM

Two months after being awarded a five-time death sentence, Indian Mujahideen (IM) operative from Beed, Mirza Himayat Inayat Baig (32), has filed an appeal in the Bombay High Court (HC) against his conviction by the Pune sessions court.

Considering it as the rarest or rare crime, the court of additional sessions judge N P Dhote had awarded the death sentence to Baig on April 18 for playing a major role in the blast at the German Bakery blast on the busy North Main Road in Koregaon Park.

The blast, that had ripped through the popular eatery on February 13, 2010, had killed 17 people and injured over 60 others. Baig filed the appeal through his lawyers, advocates A Rehman and Kainat Shaikh.

Shaikh confirmed that they have filed the appeal, adding, “We are waiting for the HC to admit the appeal on the next date, which is yet to be confirmed. We are hopeful that the judicial procedure will be completed as soon as possible to give some relief to the convict with reduction in the sentence awarded to him.” Shaikh said, “Baig is yet to receive notice from the HC since the state government has filed an application of confirmation of his death penalty.

As per rules, this is mandatory.” On being asked about the grounds on which the appeal has been filed, Shaikh said it would be too soon now to reveal all the details that they are going to put before the court during the appeal hearing.

The court had awarded the capital punishment to Baig under sections 302 and 120(B) of the Indian Penal Code (IPC), 16(A) of Unlawful Activities (Prevention) Act (UAPA), and section 3 of Explosive Substances Act.

Baig, the lone arrested accused, was found guilty of terrorist activities such as planting the bomb and hatching a conspiracy against the nation. The court had accepted the prosecution’s contention that it was a “carefully planned and executed attack, calculated to terrorise the public in general by causing extensive damage to life and property.

Its primary objective was to undermine and reduce faith of the common citizen in the elected government and destabilise the system of law”.

Main culprits still at large.

The ATS has named six other accused —Ahmad Siddibappa Zarar alias Yasin Bhatkal, Riyaz Ismail Shahbandri alias Riyaz Bhatkal, Iqbal Ismail Shahbandri alias Iqbal Bhatkal, Mohsin Choudhary, Fayyaz Kagzi alias Zulfikar Fayyaz Ahmad and Sayyad Zabiuddin Sayyad Zakiuddin Ansari alias Zabi. Ansari was recently arrested in the 26/11 Mumbai terror attack case.

Source : http://www.punemirror.in/article/2/2013062120130621080610324333dd325/Baig-files-appeal-in-HC-against-death-sentence.html?pageno=1

Death penalty for Maya Kodnani: SIT moves SC against Gujarat govt's withdrawal of consent

Saeed Khan, TNN Jun 27, 2013, 03.24PM IST

AHMEDABAD: After Gujarat government withdrew its consent to seek death penalty for former minister Maya Kodnani and others in the Naroda Patia massacre case, the Supreme Court-appointed SIT has made a representation before the Supreme Court and questioned the reason put forth by the government.
The state government suspended its consent given to the SIT to seek enhancement of punishment for Kodnani, Babu Bajrangi and eight others, who were sentenced to 28 years and 31 years respectively for their active roles in killing of 97 persons on February 28, 2002.
The SIT on its own cannot move the high court to question the trial court order or even to seek higher punishment for convicts. It requires the state government to file the appeal and the SIT can join in the proceeding later. The government consented the SIT to seek higher punishment for Kodnani and others more than seven months after pronouncement of verdict by the special court. The SIT appointed prosecutors also and prepared for filing an appeal, but the government asked SIT to suspend the process on the pretext that it was still seeking advocate general's opinion in this matter.
In its application, the SIT has submitted before the SC that the state government has claimed that it has sought the opinion of advocate general on whether death penalty could be sought for Kodnani and others. But the advocate general's opinion can be sought only in case of challenging acquittal, and the top legal officer is not even entitled to opine on the issue of death penalty, said a senior SIT official.
The official also said that the SIT moved the SC during the vacation and it may take a little long before the issue is discussed in the apex court, since this issue will be taken up by the larger bench that looks into this case. "We are waiting for the bench to sit and take up the case, but since it is a larger bench, the judges do not sit together frequently," the officer said adding that the SIT is confident that the apex court would ask the state government not to create such hurdles in judicial proceeding.
On August 29 last year, special judge Jyotsna Yagnik sentenced 32 to life imprisonment in the Naroda Patia case. Since then, the appeals are not filed by the government, though stipulated time for it is just 90 days. 

Source : http://articles.timesofindia.indiatimes.com/2013-06-27/india/40232272_1_maya-kodnani-babu-bajrangi-apex-court

 

Two sentenced to death for rape and murder

Vaibhav Ganjapure, TNN Jun 29, 2013, 01.05AM IST

NAGPUR: Seven years after a 19-year-old girl from Kalmeshwar was raped and murdered in a gruesome manner, the court on Friday sentenced the perpetrators — two hardened criminals — to the gallows. Rakesh Kamble (25), a resident of Gaurakshan slums in Wardha, and Amarsing Thakur (27), from Bajrang Nagar in city, were convicted for kidnapping, murder, and rape of Kanchan Meshram, a resident of Lonara slums in Kalmeshwar on December 18, 2005.
These two join seven others in the 'death penalty' club of Nagpur court over the last five years.
Looking at the past criminal record of the accused duo, including fleeing from police custody, the third district and sessions judge Vibha Ingle had no hesitation in putting the dastardly act under "rarest of rare" category. "They be hanged by neck till dead," the court mentioned while reading out an operative order in the packed courtroom.

Apart from the capital punishment, the duo was awarded lifer for gang rape, 20 years rigorous imprisonment for kidnapping for murder and another 10 years for criminal intimidation and trespassing into house at night. They were also fined Rs 22,000 on various counts. All the jail terms will run concurrently, the court ordered.
However, the duo was acquitted of charges under the Arms Act and Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Citing testimony of 19 witnesses, including the girl's parents, brother and other villagers, assistant public prosecutor (APP) Kalpana Pande strongly advocated the maximum punishment, contending that the accused were serial offenders and showed no signs of reformation.
Security was tight inside and outside the courtroom, considering the fact that the accused duo had a history of fleeing from custody and had created trouble every time they were brought for a hearing. Even Sadar PI Rajratan Bansod was personally present. There was no remorse on the faces of the convicts when the verdict was announced and they even threatened media persons with dire consequences.
The night of horror
Pande said the history-sheeter duo were friends with a cousin of the deceased and used to tease her. A few days before the incident, Kanchan had even rapped Rakesh for indecent behaviour and thrown a slipper at him. An enraged Rakesh then decided to teach her a lesson. He barged into the girl's small hut with Amarsing at about 3am, when she was sleeping with her parents and brother. Both were armed with knives and a country-made revolver.
Sensing trouble, Kanchan's mother signalled her to escape. She ran away from home and took shelter under the bed in her uncle's house. However, the goons entered by breaking open the front door and dragged her out. Her parents and other villagers tried their best to stop them, but the goons brandished their weapons to keep them at bay while taking her away.
Next morning, Kanchan's naked body was found at a nearby farm with 14 injuries, including stab marks and scratches on her private parts. Her blood stained clothes were lying all over the farm and blood was found splattered at many places, providing ample testimony of the spine chilling torment she underwent. The post mortem report confirmed her rape and murder.
The accused had fled to an unknown place after committing the crime. After a complaint was lodged at Kalmeshwar police, Rakesh was arrested at Khamgaon in Buldhana on June 6, 2006, six months after the incident. However, it took over five years for the police to nab the other accused Amarsing on May 29, 2005. In fact, he was arrested by Gwalior police for some other offence and was brought to the city for this case.

Source : http://articles.timesofindia.indiatimes.com/2013-06-29/nagpur/40270825_1_duo-nagpur-court-slums

Thane: Court awards death penalty to man who raped, murdered 5-year-old girl

Press Trust of India | Updated Jun 07, 2013 at 05:36pm IST

Thane: In a speedy trial, a 53-year-old man was on Friday sentenced to death by a court here for raping and murdering a five-year-old girl in January 2013. Thane Additional Sessions Judge PH Mali while pronouncing the verdict observed that the case fell under the "rarest of rare" category as the girl had been done to death in the most cruel manner and a young life was snuffed out.
Prosecutor Sangeeta Phad had sought death penalty for accused Dattu Ambo Rokade, from Koprigaon in Vashi, stating that such an inhuman act deserved nothing less than capital punishment. Also, circumstantial evidence and statement of the wife and son of Rokade, that he was capable of committing such a heinous act, nailed him.
The crime took place on January 22 this year when the minor girl was playing in the ground near her house while her elder brother and sister were watching TV. Her parents had gone to work, investigating officer in the case API Pushpa Chavan-Dighe told the court.
Rokade lured the girl to his house and then sexually assaulted her, Dighe said. When the parents of the victim were unable to trace her, they lodged a police complaint. The following day, during the early hours, they found their dead daughter dumped at their house entrance in a disrobed state.
The accused, after raping the girl, had strangulated her to death and packed her in a gunny bag. He hid the body in a garbage bin before leaving her in front of her house, the court was told.
The accused was charged under sections 302, 376, 377, 201 and 367 of IPC and also under section 4 and 5 of The Protection of Children from Sexual Offences Act. A total of 27 witnesses were examined in the case. During the trial, the court was told by locals that they had seen a old man carry a gunny bag into the building compound that day.
The accused was staying near the house of the victim and took care of his widowed daughter's kids. He was reportedly driven out of Murbad in Thane, where he attempted rape on a school teacher.
This is the second capital punishment awarded by a Thane court in less than a month. On May 16, an industrial worker Shekar Gupta, (22) who was found guilty of sexually assaulting and killing an eight-year-old, was given death by Additional Sessions Judge AA Sayeed.

Source :  http://ibnlive.in.com/news/thane-court-awards-death-penalty-to-man-who-raped-murdered-5yearold-girl/397022-3-237.html

Why the death penalty must end

Lawmakers are eager to appear resolute in the fight against crime, but seem to forget that certainty of punishment, not severity, is the real deterrent

“An eye for an eye makes the whole world blind,” said Mahatma Gandhi.

The death penalty is unjust and inhuman. Its continued use is a stain on a society built on humanitarian values, and it should be abolished immediately.

Many think that there could be nothing wrong with the death penalty as the Indian Constitution allows for capital punishment, which means that the founding fathers of this country must have also fully approved of it. In reality, several members of the Constituent Assembly were firmly opposed to the death penalty.

The architect of the Constitution, Babasaheb Ambedkar, admitted in the Constituent Assembly that people may not follow non-violence in practice but “they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as far as they possibly can.” With this in mind, he said, “the proper thing for this country to do is to abolish the death sentence altogether.”

On June 3, 1949, Professor Shibbanlal Saxena, a freedom fighter who had been on death row for his involvement in the Quit India Movement, spoke in the Constituent Assembly of how he had seen innocent people being hanged for murder during his days in prison. Proposing the abolition of the death penalty, he said that the avenue of appealing to the Supreme Court “will be open to people who are wealthy, who can move heaven and earth, but the common people who have no money and who are poor will not be able to avail themselves” of it.

Miscarriage of justice is, in fact, one of the biggest concerns about the death penalty. Is it possible that someone could be wrongly hanged in 21st century India? The answer, unfortunately, is yes. Studies conducted by Amnesty International and the People’s Union for Civil Liberties have shown that the process of deciding who should be on death row is arbitrary and biased. The Supreme Court has itself admitted on several occasions that there is confusion and contradiction in the application of the death penalty.

Instances of innocence

Last year, 14 eminent retired judges wrote to the President, pointing out that the Supreme Court had erroneously given the death penalty to 15 people since 1996, of whom two were hanged. The judges called this “the gravest known miscarriage of justice in the history of crime and punishment in independent India.”

Some argue that the death penalty is the only way to deter heinous crime, especially violence against women and children. But a comprehensive study done last year in the United States found that there is no credible evidence that the death penalty has any deterrent effect on crime.

The “Innocence Project” in the United States [a national litigation and public policy organisation dedicated to exonerating wrongfully convicted individuals through DNA testing and reforming the criminal justice system] has found, on the other hand, several cases where innocent people were given the death sentence. One such case is that of Cameron Todd Willingham, who was executed in 2004 for the deaths of his three young daughters. In 2009, reinvestigation of the case raised serious doubts in the appreciation of forensic evidence in the case and the judge concluded that Willingham was wrongfully convicted. Another case is that of Carlos DeLuna who was executed in 1989 for the murder of a young woman some years before. In 2004, a study by Columbia Law School students brought to light the wrongful conviction of Carlos DeLuna, which turned out to be a case of mistaken identity of the actual perpetrator of the murder. Lawmakers in India find it convenient to hold up the death penalty as a symbol of their resolve to tackle crime, and choose to ignore more difficult but more effective solutions like social education and police or judicial reform. The certainty of punishment, not severity, is the real deterrent.

Rajiv Gandhi case

The death penalty is little more than judicially sanctioned murder. Justice K.T. Thomas, who headed the three member bench in the Rajiv Gandhi assassination case, has said that executing Perarivalan, Murugan and Santhan, convicted and sentenced to death in the case, would amount to punishing them twice for the same offence, as they had already spent 22 years in jail, the equivalent of life imprisonment.

In recent months, the Government of India has shown an alarming tendency to implement the death penalty. It is a fallacy to think that one killing can be avenged with another. For, capital punishment is merely revenge masquerading as justice. When the government is trying to create a just society where there is less violence and murder, it cannot be allowed to commit the same crime against its citizens in the name of justice.

The DMK president, Kalaignar Karunanidhi, reiterated the party’s stand last month when he called upon the Government of India to commute the death sentences of the 16 men, including seven from Tamil Nadu, who are on death row. The DMK president had made similar pleas to the Centre in August 2011 and October 2006. This has been the party’s consistent position against this inhumane practice.

Rest of the world

The world is moving away from using the death penalty. The European Union has made “abolition of death penalty” a prerequisite for membership. The 65th United Nations General Assembly voted in December 2010, for the third time, in favour of abolishing the death penalty and called for a global moratorium on executions. Amnesty International reports that 140 countries — more than two-thirds of the world — do not use the death penalty any more. India needs to recognise this global trend, and act in step with it.

(Kanimozhi is a Member of Parliament.)

Source: http://www.thehindu.com/opinion/op-ed/why-the-death-penalty-must-end/article4782064.ece#.Ua7rUBUxTlE.gmail [accessed on 5th June 2013]

The curious case of Devendar Pal Singh Bhullar

On 12.04.2013 the Supreme Court of India rejected the Petition filed by Devendar Pal Singh Bhullar for commutation of his sentence from death to life imprisonment on the basis of long delay in deciding his mercy petition which has been pending before the President of India since 2002.

The Supreme Court also held that the principle laid down regarding the delay and commutation of sentence in the case of Triveniben by the Supreme Court was not applicable to cases under TADA or similar statutes. Thus the Supreme Court of India has created a new category of persons who cannot be given the benefit of delay in deciding their mercy petitions. The reasoning is not clear apart from the fact that it is a terrorist act and the person has been tried under special law.

In the case of Triveniben which was decided by the constitutional bench of the Supreme Court, it had held that ‘Undue long delay in execution of the sentence of death will entitle the condemned person to approach this Court under Article 32 but , this Court will only examine the nature of delay caused and circumstances ensued after sentence was finally confirmed by the judicial process and will have no jurisdiction to re-open the conclusion reached by the Court while finally maintaining the sentence of death. This Court, however, may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into Imprisonment for life.’ 

Thus the judgement in the case of Bhullar which has been decided by a 2 judge bench of the Supreme Court is contrary to the law laid down by the Constitutional bench in the case of Triveniben.

Though the facts of the case were not open for discussion at the stage of deciding the latest petition filed by Bhullar, it was important that various courts who had decided the case at various stages and the President of India who considered the mercy petition ought to have looked in the merits of the case.

When the Special Leave Petition of Bhullar was decided by the Supreme Court in 2002 Justice M.B. Shah who was one of the judges of a 3 judge bench which decided the case held that Bhullar should be acquitted. Yet the other 2 judges held that Bhullar should be given the death sentence. During the hearing of the review petition also Justice Shah held that death sentence should not be awarded and the other 2 judges again held that Bhullar should be sentenced to death. There should be a unanimous decision on the issue of sentence at least when one of the judges has held that Bhullar should have been acquitted.

Apart from a confession to a police officer, there is no evidence against Bhullar in this case. The incident occurred in 1993, and Bhullar was arrested from Airport after he was deported from Germany in 1995. Within a few hours of his arrest, it is alleged that he agreed to give a confessional statement. It is this very confessional statement which Justice Shah termed unreliable. Justice Shah, in his dissenting judgement observes that none of the facts laid down in the confessional statement have been corroborated by the testimony of any witnesses or any independent evidence. He also observes that Bhullar’s father and his father-in-law were arrested and tortured in police custody, and that this could have compelled Bhullar to make the confession.

Since the court had found the confessional statement of Bhullar unreliable and insufficient to convict his co-accused, though TADA permitted the use of his confessional statement even against his co-accused, it ought not to have convicted Bhullar solely on the basis of his uncorroborated, retracted and forced confessional statement.

 Confessional statements to police officers are inadmissible under Indian law and in this case it was admissible because the accused was charged with the draconian Terrorist And Disruptive Activities (Prvention), Act, which made confessions to police officers admissible.

It is a well known and documented fact that the police extract confessions on the basis of threats and inducements, and the courts have rightly held that confessional statements should be corroborated by other independent evidence.

Considering the overall circumstances, the evidence against him, and the mental condition of Bhullar, it is in the interest of justice that Bhullar’s death sentence is commuted to life imprisonment.