HC admits Kasab's appeal against death sentence

Justices Ranjana Desai and R V More said the appeal would be heard along with the matter pertaining to confirmation of death sentence imposed on Kasab by the trial court for killing 166 people in the dastardly attacks.
The judges, however, deferred till October 6 their ruling on who should be asked to open arguments -- the state or the defence.

The bench said there are judgements to show that the prosecution should open the arguments first and then the convict would have an opportunity to defend himself.
Kasab's lawyer Amin Solkar said the state should argue first on confirmation of death sentence and he would follow later with submissions on appeal filed by his client.

However, government counsel Ujjwal Nikam argued that precedents in judgements cited by the court were wrong and said that it were the defence who should start arguments on appeal. He said logically it should be the appeal which should be decided first and only if it fails the question of confirmation of death sentence would come up.

Kasab has sought acquittal on 57 grounds saying he had been wrongly convicted as the judge had erred in law by not properly appreciating evidence. He said eyewitnesses had identified him in the court because his photographs appeared in media immediately after the incident.

Eyewitnesses, who had identified Kasab as a terrorist committing terror act on November 26, 2008, have contradicted each other on material and vital aspects of the prosecution's case, the 25-page appeal argued.

Kasab's appeal said his confession had been accepted partially by the trial judge who had erred in doing so. A confession has to be either fully accepted or discarded and cannot be accepted on a piece-meal basis. He also denied that it was true and voluntary.
The appeal said the trial court had failed to consider that the alleged confession of Kasab was just a narration of events giving entire history instead of admission of his guilt and therefore cannot be termed as a confession but rather a statement before police which is hit by section 162 of CrPc.

Kasab said the trial judge had failed to consider that he had retracted his confession. Moreover, the confession was recorded in the chambers of the Magistrate and not in open court where the atmosphere is free from any force or pressure.
The appeal said the trial court had failed to consider that the conspiracy, hatched in Pakistan, was to kill maximum number of foreigners belonging to America, Britain and Israel and accordingly four targets were chosen. Hence, the question of attacking sovereignty of India to overawe the government or wage war against the nation did not arise.

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