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‘Does A Man Drown Peacefully? It’s His Right To Try.’

Former special TADA court judge P.D. Kode on questions his verdict as 1993 Bombay blasts trial judge raised.

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‘Does A Man Drown Peacefully? It’s His Right To Try.’
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Special TADA court judge P.D. Kode read over 13,000 pages of evidence and heard around 700 witnesses from 1996 onw­a­rds before delivering his judgement in ’07 in the trial of the 1993 Bombay blasts case. He was later elevated to the high court and retired this February, and is set to act as a judge in a Hindi film this year. He spoke to Prachi Pinglay-Plumber on questions his verdict as trial judge raised. Excerpts:

What were the offences for which Yakub  Memon was given the death sentence?

It was the first major terrorist attack and indicated that the time had come for  my country to commence a war against terrorism. For the first time, sophisticated arms—AK-56, AK-47 and explosives such as RDX—were used. Our investigating agencies weren’t even familiar with them. According to the law, when 10 people enter into a conspiracy, every one of them, irrespective of his overt acts, is liable for an act individually performed by the co-conspirators for furthering the object of the conspiracy. Yakub was part of the core, the nucleus. Not only was he part and parcel of the group that hatched the conspiracy, evidence revealed he had played an active role in assisting his brother to execute the conspiracy, through financing.

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Did it help that TADA allowed confessions by the co-accused to be used as evidence?

No sane criminal will hatch a conspiracy and keep witnesses. But evidence of conspiracy comes from information given by co-conspirators, through confessions, or from someone opting to turn approver. There were two approvers and there were the confessions of many co-accused. These were retracted, but the retractions were an afterthought.

Isn’t it ironical that the approver with a direct involvement is pardoned but Yakub Memon gets the death sentence?

Approvers may apply for pardon, but it is ascertained by the court at the end of the trial. An approver has to make full and true disclosure within his knowledge. In this case, his evidence was crucial.

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Is it right to absolve an approver who had a significant role?

Their roles were not very significant.

But did the approver attend the meeting of conspirators?

Yes, his evidence was the only evidence which provided details of the meeting.

You had raised doubts about his arrest? Was there any deal?

The accused is entitled to take several defences. But that doesn’t mean they are proven. He can claim whatever he likes, but could he prove it? The prosecution gave evidence about which officer arrested him, where and at what time. The evidence remained undented in cross-examination. In any case, whether he surrendered or was arrested—it does not impact the case.

Then why did the family return to India?

They took the gamble that their identity would not get revealed.... Who knows how they were treated there? Is it possible that they got out of house arrest and Pakistani police were not watching? He didn’t come through an embassy.

Does the fact that the main culprits,  Dawood Ibrahim and Tiger Memon, are still at large affect public perception?

Dawood left in 1987. Tiger was not a big criminal but only a small-time smuggler in Manish Market. They are not lawful residents of any country. It is not in the grain of our country to attack any other country. People expect that the ones who were caught should be punished. The ones who fled have not been able to come back to their home country. That is a punishment too.

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Aren’t there several guidelines that suggest that mentally ill people cannot be hanged?

Yakub Memon, Essa and one more brother’s case was considered for death, but I gave them life sentences, considering their health. But the way he behaves...who will call him ill? Are all the co-accused lying? He is still not willing to admit his guilt. No one mentioned he had schizophrenia.

What about depression?

Who doesn’t have depression? Even the authorities have depression. That doesn’t change his crime.

Does stringent punishment really deter crime or terror attacks?

Please understand. There were no attacks for years after this case, because all those who trained in Pakistan were arrested.

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What about the fresh mercy petitions and challenges to execution warrants?

Does a drowning man drown peacefully? It’s his right to try.

Do you believe in the death penalty?

If someone violates other innocent people’s right to life, why not? If it exists in the statute books, why shouldn’t it be used?

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