MEMORIAL

TEAM CODE: L-124 & L-125

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O M B AY

F O R O FF E NCE S C H ARG E D U NDE R T H E I N D IAN P E NAL C O DE , 1860

IN THE MATTER OF

State of Maharashtra Prosecution

___________ v.

Mohammed Ajmal Mohammed Amir Kasab

___________ Defense

S.C. N O . ____ O F 2015

MEMORANDUM ON BEHALF OF THE DEFENSE

Upon Submission to the Hon’ble Sessions Judge

I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {T A B L E O F C O N T E N T S }

TABLE OF CONTENTS TABLE OF CONTENTS .......................................................................................................[ii] LIST OF ABBREVIATIONS................................................................................................[iii] INDEX OF AUTHORITIES..................................................................................................[iv-v] STATEMENT OF JURISDICTION ......................................................................................[vi] STATEMENT OF FACTS .....................................................................................................[vii] STATEMENT OF ISSUES.....................................................................................................[viii] SUMMARY OF ARGUMENTS ...........................................................................................[ix] ARGUMENTS ADVANCED................................................................................................[1-6] [1] WHETHER THE ACCUSED IS VICTIM OF ABETMENT ?...............................................................[1-3] [1.1] THE

OFFENCE OF THE ABETMENT IS COMMITTED BY THE TERRORIST MASTERS WHO

INSTIGATED THE ACCUSED

[1.2] THE ACCUSED IS NOT GUILTY OF CRIMINAL CONSPIRACY AND WAGING WAR [2] WHETHER THE ACCUSED BE INFLICTED WITH THE DEATH PENALTY?.........................................[36] [2.1] THE DEATH PENALTY TO BE INFLICTED IN THE RAREST OF RARE CASES [2.2] THE ACT OF THE ACCUSED DOES NOT FALL UNDER THE PURVIEW OF RAREST OF RARE CASE

PRAYER………………………………………………………………………………….….[x]

[M E M O R A N D U M

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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {L I S T O F A B B R E V I ATI O N S }

LIST OF ABBREVIATIONS AIR

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All India Reporter

All

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Allahabad High Court

Cal

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Calcutta High Court

Cri LJ

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Criminal Law Journal

Cr.P.C.

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The Code of Criminal Procedure

Del

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Delhi High Court

Ed.

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Edition

Guj

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Gujarat High Court

I.P.C.

–

Indian Penal Code

Mad

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Madras High Court

P&H

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Punjab and Haryana High Court

SC

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Supreme Court

SCC

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Supreme Court Cases

Sec.

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Section

v.

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Versus


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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {I N D E X O F A U T H O R I T I E S }

INDEX OF AUTHORITIES JUDICIAL DECISIONS 1. Allaudin Mian & Ors. v. State of Bihar(1989) 3 SCC 5 2. Babu Lal v. State, 1999 CrLJ 3738 (ALL) 3. Bachan Singh v. State of Punjab, AIR 1982 SC 1325 4. Devendran v. State of Tamil Nadu, 1998 SCC (Cri) 220 5. Emperor v. Ganesh D. Savarkar, (1909) 12 Bom LR 105 6. Etim Ali Majumdar, (1900) 4 CWN 500 7. Furman v. Georgia, 408 U.S. 238 8. Gregg v. Georgia, 428 U.S. 153 9. In re Lakshmi Narayan Aiyer, AIR 1918 Mad 738 10. Kehar Singh v. The State (Delhi Admn.), AIR 1988 SC 1883 11. Machhi Singh v. State of Punjab AIR 1983 SC 957 12. Malan v. State of Maharashtra, AIR 1960 Bom 393 13. Mukund alias Kundu Mishra v. State of Madhya Pradesh, AIR 1997 SC 2622 14. Parimal Chatterji v. Emperor, (1932) 60 Cal 327 15. Purushothaman v. State of Kerala, 1989 CriLJ NOC 184 (Ker) 16. Rajaram Yadav v. State of Bihar, 1996 SCC (Cri) 1004 17. Randhir Singh and Another v. State of Punjab, AIR 2004 SC 5097 18. Ronald James Alwaris v. State of Maharashtra(1998) 3 SCC 625 19. Santosh Kumar Bariyar v. State of Maharashtra(2009) 6 SCC 498 20. Sheikh Abdul Hamid v. State of Madhya Pradesh, AIR 1998 SC 942 21. Sheikh Ishaque v. State of Bihar, (1995) SCW 2001 22. Shrilal v. State of M.P., AIR 1953 MP 155 23. State of U.P. v. Shri Krishna and Others, AIR 1980 SC 898 24. State v. Baisakha Singh1999 CrLj 1399 (Raj) 25. Suresh v. State of U.P., AIR 1981 SC 1122 26. Surjaram v. State of Rajasthan, AIR 1997 SC 18 27. Vashram Narshibhai Rajpara v. State of Gujarat(1996) 8 SCC 167


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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {I N D E X O F A U T H O R I T I E S }

STATUTES 1. The Code of Criminal Procedure, 1973 2. The Constitution of India 3. The Indian Penal Code, 1860 BOOKS 1. GAUR, KD, CRIMINAL LAW: CASES AND MATERIALS, (6th Ed. 2009).

2. K.I. VIBHUTE, PSA PILLAI’S CRIMINAL LAW, (12th Ed. 2014). 3. P RAMANATHA, THE LAW LEXICON (2nd Ed. 2006).

4. RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE,1860 (33rd Ed. (2011).

DYNAMIC LINKS 1. www.lexisnexis.com last accessed on 08 May 2015 2. www.scconline.co.in last accessed on 06 May 2015 3. www.supremecourtofinida.nic.in last accessed on 07 May 2015 4. www.westlawindia.com last accessed on 08 May 2015


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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {S T ATE M E N T O F J U R I S D I C T I O N }

STATEMENT OF JURISDICTION

The Hon’ble Court has jurisdiction to try the instant matter under Section 177 read with Section 209 of the Code of Criminal Procedure, 1973.

Section 177: ‘177. Ordinary place of inquiry and trial- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.’ Read with Section 209: ‘209. Commitment of case to Court of Session when offence is triable exclusively by it- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall(a) commit the case to the Court of Session; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.’


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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {S T ATE M E N T O F F A C T S }

STATEMENT OF FACTS 1. Mohammed Ajmal Mohammad Amir Kasab (hereinafter referred to as the accused), born on September 13, 1987, lived in Pakistan and attended the Urdu-medium Faridkot Government Primary School up to class 4 In 2001. 2. Thereafter, he and his father went to Lahore in search of employment. The accused started working as a laborer and continued to stay in Lahore alone, living in rented accommodation. During this period he used to visit his village home. 3. On one such visit, he quarreled with his father over the money earned by him. After the quarrel he left the home and started living alone in Lahore. 4. It was here, around the month of December, that they saw members of Lashkar-e-Taiba going from door to door under the name of Jamaat-ul-Dava, collecting hides of goats sacrificed on Eid-uz-Zoha. 5. They were asking people to donate the goat hides to help achieve independence for Kashmir. Kasab and his friend developed great respect for those people. 6. In 2007, the accused joined Lashkar e Taiba. The accused and his team were given lessons in the Hadis. An Ustad conducted physical exercises. Besides, they were given lectures and lessons on Jihad. 7. Hafiz Sayeed and Zaki ur Rehman Lakhvi were their commanders and they have to work according to their instruction only. These commanders were the mastermind of the attack done in Bombay city. 8. It was Lakhvi who instigated them that anyone who would die in this war would go to paradise. In response, the accused and all his associates launched an attack on Mumbai in India on November 26, 2008.


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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {S T ATE M E N T O F I S S U E S }

STATEMENT OF ISSUES [1] WHETHER THE ACCUSED IS VICTIM OF ABETMENT ? [3] WHETHER THE ACCUSED BE INFLICTED WITH THE DEATH PENALTY?


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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {S U M M A RY O F A R G U M E N T S }

SUMMARY OF ARGUMENTS [1] THE ACCUSED IS VICTIM OF ABETMENT. The counsel humbly submits before the Hon’ble Court that the act of these terrorist masters falls substantially under the ambit of § 107 of I.P.C. in the form instigation as an abetment. These masters played a key role in the entire Mumbai attack and the accused in the case at hand was just utilized as the means to achieve the deadliest goals of them. Thus, the accused is just an another victim of the abetment by these key conspirators who uses these economically downtrodden young boys to execute the criminal plans in the name of Jihad and lure them with a little sum of money along with guaranteeing a place for them in paradise by giving them the status of a martyr. [2] THE ACCUSED SHOULD NOT BE INFLICTED WITH DEATH PENALTY. It is humbly submitted before the Hon'ble Court that the first exception of Section 300 describes culpable homicide not amounting to murder if the offender is deprived of self control by the sudden and grave provocation. However, in the instant case, the accused was not deprived of any self control and there was enough time before the accused to react to the situation. Thus, the accused murdered deceased with the full intention and knowledge. Hence, the act of the accused does not invite the first exception under Section 300.


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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {A R G U M E N T S A D VAN C E D – C O N T E N T I O N I}

ARGUMENTS ADVANCED CONTENTION I WHETHER THE ACCUSED IS VICTIM OF ABETMENT 1. The counsel humbly submits before the Hon’ble Court that the accused is victim of Abetment. With reference to this issue, the submission here is twofold: Firstly, [1.1] THE

OFFENCE OF THE ABETMENT IS COMMITTED BY THE TERRORIST MASTERS WHO

INSTIGATED THE ACCUSED.

2. To constitute abetment under § 107 of I.P.C., it is not necessary that a perpetrator should have brought to the trial or convicted, or even that his identity should be known 1. However, it is necessary for the prosecution to prove that the accused abetted the commission of the principal offence, the principal offense was in fact committed and that the accused had intent to aid or encourage its commission.2 Thus, intentional aiding and active complicity is the gist of the offence of abetment.3 3. Thus, in the instant case, the accused was abetted by his masters in Pakistan for commission of crime in the financial capital of India, Mumbai. The key conspirators and masterminds for this intricate attack were Zaki-ur-Rehman Lakhvi (the military chief of Lashkar-e-Taiba group), Hafeez Saeed, Abu Hamza, Abu Al-Kama and several others. 4. Further, it is well known that an act of abetment may take place in the form of instigation, conspiracy or intentional aid.4 Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. 5 Instigation refers to provoke, incite, urge or

1 Purushothaman v. State of Kerala, 1989 CriLJ NOC 184 (Ker). 2 CROSS & JONES, INTRODUCTION TO CRIMINAL LAW, (9th ed. 2012). 3 Kehar Singh v. The State (Delhi Admn.), AIR 1988 SC 1883. 4 Malan v. State of Maharashtra, AIR 1960 Bom 393. 5 Randhir Singh and Another v. State of Punjab, AIR 2004 SC 5097. [M E M O R A N D U M

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encourage doing an act.6 Instigation necessarily connotes some active suggestion or support or stimulation to the commission of the act itself.7 5. Moreover, the instigation does not merely mean the placing of temptation to do a forbidden thing, but actively stimulating a person to do it.8 Instigation implies knowledge of the criminality

6 Parimal Chatterji v. Emperor, (1932) 60 Cal 327. 7 Emperor v. Ganesh D. Savarkar, (1909) 12 Bom LR 105. 8 In re Lakshmi Narayan Aiyer, AIR 1918 Mad 738. [M E M O R A N D U M

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of an act.9 It is the instigation to the commission of the act itself which constitutes the offence that is regarded as abetment.10 [1.2] THE ACCUSED IS NOT GUILTY OF CRIMINAL CONSPIRACY AND WAGING WAR Factual Arguendo 6. In the instant case, the accused along with 30 other persons were imparted with militant trainings in the name of Jihad and were instigated with a message that they were fighting for the independence of Kashmir. For this purpose during the training, they were highly brainwashed for three consecutive months to attack the major cities of India with a Jihadi message that whosoever amongst them will die in these attack will go to paradise and would be remembered as martyrs. 7. Furthermore, it is to be taken into consideration that the accused was a minor & uneducated while taking the trainings at these Jihadi camps run by the terrorist masters. The sole reason for the accused to join these Jihadi camps was to meet two square meals owing to the poor economical conditions of the family. 8. Moreover, these terrorist masters were continuously communicating with the accused to cause maximum devastations in Mumbai in order to seek a place in paradise. During this communication, these terrorist masters had their control over the activities of the accused and could have certainly asked them to stop. Thus, ultimately these were the terrorist masters who instigated the accused to carry on the criminal acts and thus these terrorist masters are liable for abetment and the accused in the case at hand is the victim of the master planning of these terrorist masters. Furthermore, the accused did not plan the attack in Mumbai. He was executing the deadliest plan framed by terrorist masters who instigated him to use weapons and deadly explosives against the masses. 9. To recapitulate, the act of these terrorist masters falls substantially under the ambit of § 107 of I.P.C. in the form instigation as an abetment. These masters played a key role in the entire Mumbai attack and the accused in the case at hand was just utilized as the means to achieve the deadliest goals of them. Thus, the accused is just an another victim of the abetment by these key conspirators who uses these economically downtrodden young boys to execute the criminal plans in the name of Jihad and lure them with a little sum of money along with guaranteeing a place for them in paradise by giving them the status of a martyr.

9 Etim Ali Majumdar, (1900) 4 CWN 500. 10 Shrilal v. State of M.P., AIR 1953 MP 155. [M E M O R A N D U M

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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {A R G U M E N T S A D VAN C E D – C O N T E N T I O N II }

The accused, not being a key conspirator of the attack, was just a victim of abetment by instigation from the terrorist masters. Hence, the accused should not be held guilty under the offence of criminal conspiracy (§ 120 B) and waging war against the nation (§ 121) as the master terrorists would be guilty of all such offences in the capacity of the masterminds of these attacks. CONTENTION II WHETHER THE ACCUSED BE INFLICTED WITH THE DEATH PENALTY? 1. With respect to this issue, the Counsel humbly submits before this Hon’ble Court that the accused should not be granted the death sentence. The submission in this response is twofold: Firstly, [2.1] THE DEATH PENALTY TO BE INFLICTED IN THE RAREST OF RARE CASES11 2. In Bachan Singh Case12, the Supreme Court expressed some outstanding reasons relating wrongdoing and criminal by noting that “….in settling the level of discipline or settling on the decision of sentence for different offenses, including one under Section 302 of [the] Penal Code, the court ought not bind its thought “chiefly” or just to the circumstances associated with the specific wrongdoing, additionally give due attention to the circumstances of the criminal.” 3. Further, in Santosh Kumar Bariyar v. State of Maharashtra 13, the Supreme Court got an opportunity to explain this further. The Court explained that “The rarest of rare dictum entrenches the policy that life imprisonment is the rule and death punishment is an exception. It is a settled law of interpretation that exceptions are to be construed narrowly. That being the case, the rarest of rare dictum places an extraordinary burden on the court, in case it selects death penalty as the favored penalty, to carry out an objective assessment of facts to satisfy the exceptions ingrained in the rarest of rare dictum.” 4. Therefore, the general rule now is to award life imprisonment and death sentence is the exception to be awarded for special reasons in the rarest of rare cases. 14 Further, death sentence may be affirmed or imposed should be legislatively limited to those where the offender is found to be so depraved that it is not possible to reform him by any curative or rehabilitative therapy and even 11 Bachan Singh v. State of Punjab, AIR 1982 SC 1325. 12 Ibid. 13 (2009) 6 SCC 498 14 State of U.P. v. Shri Krishna and Others, AIR 1980 SC 898. [M E M O R A N D U M

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after his release he would be a serious menace to the society and therefore in the interest of the society he is required to be eliminated.15 5. Furthermore, the Court needs to draw a balance-sheet of aggravating and mitigating circumstances. Both aspects have to be given their respective weightage. 16 The Court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of `just deserts' that serves as the foundation of every criminal sentence that is justifiable. 17 In other words, the `doctrine of proportionality' has a valuable application to the sentencing policy under the Indian criminal jurisprudence. 6. Moreover in Machhi Singh v. State of Punjab18, the Court laid down certain guidelines while considering the possibility of award of death sentence. The guidelines included that before opting for the death penalty the circumstances of the offender also requires to be taken into consideration along with the circumstances of the crime. 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. 7. Furthermore, the guidelines laid down in Bachan Singh Case19 specified that the mitigating circumstances which could be considered by the Court while determining such serious issues of included firstly, that the offence was committed under the influence of extreme mental or emotional disturbance. Secondly, the age of the accused. If the accused is young or old, he shall not be sentenced to death. Thirdly, the accused acted under the duress or domination of another person.

15 Law Commission of India, Consultation Paper on Mode of Execution of Death Sentence and Incidental Matters, 41 (2014), available at http://lawcommissionofindia.nic.in/cpds1.pdf , last seen on 11/5/2015. 16 Sheikh Ishaque v. State of Bihar, (1995) SCW 2001. 17 Surjaram v. State of Rajasthan, AIR 1997 SC 18. 18 AIR 1983 SC 957 19 Supra Note 11 [M E M O R A N D U M

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8. In yet another case of Vashram Narshibhai Rajpara v. State of Gujarat20the Court held that the intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge and retaliation are also to be considered as the relevant factors. 9. Moreover in another judicial pronouncement, the Court commuted the death sentence to life imprisonment because of the reason that accused had lost the power of self control while

20 (1996) 8 SCC 167 [M E M O R A N D U M

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committing the murder.21 Similarly in the instant case, accused had lost the self control owing to extreme brainwash with the patriotism of Jihad. 10. The judges in the case of State v. Baisakha Singh22, awarded the life imprisonment to the accused instead of death penalty while taking into consideration the young age of the accused. 11. Further, in Ronald James Alwaris v. State of Maharashtra23, the Court while relying on the judgment of Allaudin Mian & Ors. v. State of Bihar 24converted death sentence into life imprisonment taking into consideration the young age of the accused and possibility of their reformation. The same has been upheld in the catena of judgments.25 Similarly, in the instant case the accused is of the young age of 21 years. 12. Moreover, the Constitution of India under Article 2126 enshrines the right to life and personal liberty to every person. However, death penalty denies due process of law 27. Its imposition is always arbitrary and irrevocable which forever deprives an individual of the opportunity to benefit from new evidence or new laws that might warrant the reversal of a conviction, or the setting aside of a death sentence.28 [2.2] THE ACT OF THE ACCUSED DOES NOT FALL UNDER THE PURVIEW OF RAREST OF RARE CASE Factual Arguendo 21 Babu Lal v. State, 1999 CrLJ 3738 (ALL). 22 1999 CrLj 1399 (Raj) 23 (1998) 3 SCC 625 24 (1989) 3 SCC 5 25 Suresh v. State of U.P., AIR 1981 SC 1122; A. Devendran v. State of Tamil Nadu, 1998 SCC (Cri) 220; Rajaram Yadav v. State of Bihar, 1996 SCC (Cri) 1004; Sheikh Abdul Hamid v. State of Madhya Pradesh, AIR 1998 SC 942; Mukund alias Kundu Mishra v. State of Madhya Pradesh, AIR 1997 SC 2622. 26 Art. 21, the Constitution of India: No person shall be deprived of his life or personal liberty except according to procedure established by law. 27 Furman v. Georgia, 408 U.S. 238. 28 Gregg v. Georgia, 428 U.S. 153. [M E M O R A N D U M

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13. The accused in the case at hand belongs to an economically downtrodden family and inhabited in a rural area. He did not even complete his basic elementary education. At the age of 16, the accused left his home and lacked the guidance and direction of parents for living the life. At the age of 17, he became acquainted with the Lashkar-e-Taiyaba militant terrorist group in order to seek the two square meals. 14. At these terrorist campaigns, the accused along with other young persons were imparted with the militant trainings along with creation of sense in their minds that they are fighting for religion and in case they die, they will secure a place a paradise and would be termed as martyrs.


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15. A person who lived a life of underprivileged human, who lacked the parental guidance and support at a young age, who struggled to obtain two square meals a day had no other option than to join such luring terrorist groups in order to survive and make a living. The accused joined the terrorist group at first instance under the wrong presumption that the group is fighting for the liberation of Kashmir which is a good cause for the benefit of his nation and he acted under the wrong influence of patriotism which was created by the this Jihadi terrorist group leaders in order to get their wrong motives fulfilled. 16. Thus, keeping in view the circumstances in which the offence was committed and the judicial precedents, the accused shall not be inflicted with the death penalty.


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I N T R A C L A S S C R I M I N A L L AW M O O T C O U RT C O M P E T I T I O N , 2015 {P R AYE R }

PRAYER

WHEREFORE, IN THE LIGHT OF FACTS STATED, ISSUES PRESENTED, ARGUMENTS ADVANCED AND AUTHORITIES CITED, THE DEFENSE RESPECTFULLY REQUESTS

THIS

HON’BLE COURT

TO:

[1] N o t t o c o n v i c t t h e a c c u s e d f o r t h e o f f e n s e o f c o n s p i r a c y a n d w a g i n g war under Sections 120 B and 121 of Indian Penal Code, 1860. [2] N o t t o d e c l a r e a s e n t e n c e o f d e a t h u n d e r S e c t i o n 3 0 2 o f I n d i a n P e n a l Code, 1860.

AND

TO

PASS

OF JUSTICE,

ANY SUCH

ORDER

AS THIS

HON’BLE COURT

MAY DEEM

FIT

IN THE INTEREST

EQUITY AND GOOD CONSCIENCE.

All of which is respectfully submitted Sd/- ______________________ COUNSEL FOR THE DEFENSE

PLACE: GREATER BOMBAY


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MEMORIAL

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