2006 Mumbai train blasts: Defence examines its last witness

While advancing his defence arguments in the 2006 serial train blast case, senior advocate Yug Chaudhari said: "As per Supreme Court's rulings, the main criterion to award death penalty is that the quality of evidence has to be higher than expected. The evidence should be beyond reasonable doubt and above certainty." Meanwhile, the defence examined its last witness, Arun Ferreira, whom it had called to testify on the conduct of convicts in the prison.

Advocate Chaudhari restricted his arguments on a number of findings laid down by the apex court, wherein the court had described the conditionswhich attract capital punishment. "It has been observed that especially in Mumbai (court's) the application of death is much alarming than what is envisaged in the known Bachan Singh's case (Bachan Singh vs State of Punjab, 1980). The court while awarding the death penalty needs to be very clear on its reasoning. The prosecution needs to exhaust all of its options which would prove that there is no chance of reformation of the convict.

The defence had pleaded the court to call for reports from the probation officer, which would give a clear picture to the court to decide if there was any chance for the accused to reform. However, the court had rejected the application. "The fact remains that the entire burden to prove that there is no scope of reformation left with the convicts is with the prosecution; however, it has not been done in this case," argued Chaudhari.

"As per the Supreme Court's findings, the term 'rarest of rare' is not attracted with respect to the crime aspect of the case, but with the criminal's aspect. The person has to be a menace to the society and that he has a heinous mindset, with no scope of reformation. However, conditions when the crime was heinous or brutal, cannot attract the criteria of rarest of rare case," argued Chaudhari.

The senior advocate further argued on the quality of evidence recorded by the prosecution. Advocate Chaudhari said that the prime aspect for the court to award the convicts with death penalty is that the evidence which the prosecution has brought on record has to be higher than expectation. "The main point in this case is that can the death penalty be based on the confessional statement, which was not recorded before the magistrate, but was recorded by the deputy commissioner of police? Also, we cannot forget that the police officials who were investigating the case, their names have been popped up in certain criminal cases," he said.

Citing from the latest Law Commission report of August 2015, advocate Chaudhary pointed out that over 95 per cent of death sentences awarded by the trial courts either resulted in acquittals at the Supreme Court or were commuted to life. Only 4.3 per cent of the death penalties were upheld by the apex court. "Only if the accused is a threat to society is the death penalty given. In more than 95 per cent of the cases the trial courts have wrongly given the death sentence. Especially in Mumbai, the

application of the death sentence is alarmingly high," he said.

Meanwhile, the last witness in the case, was examined by the defence advocate to testify in favour of the accused. Arun Ferreira, formerly accused and later acquitted under the Unlawful Activities (Prevention) Act for alleged Maoist activities, vouched for the helpful nature of 10 of the accused persons.