MUMBAI: "Apko di hui saza-e-maut barkarar rakkhi jaati hai (We have upheld your death sentence)." With these words the Bombay high court confirmed on Monday the death sentence awarded last May to gunman Ajmal Amir Kasab for his "diabolical" role in the 26/11 terror attacks.
Kasab's moods in court have fluctuated. On Monday, an unkempt Kasab was seen grinning through most of the hearing, during which the judges took 15 minutes to read the highlights of a 1,208-page judgment.
The court held Kasab, 23, individually responsible for seven murders and together with his accomplice Abu Ismail, responsible for 66 other killings on the night of November 26, 2008 when they went on the rampage from CST to Cama Hospital and Metro Junction to Chowpatty. He was also held guilty for abetting and conspiracy in the murders of the remaining 166 victims who died at the Taj, Oberoi and Trident and Nariman House.
However, in a continued setback to the state government, the bench of Justices Ranjana Desai and Ranjit More upheld the acquittal of co-accused Indians Faheem Ansari and Sabauddin Shaikh. The court said there was no conclusive corroborative evidence. The duo had been charged with facilitating the attack by furnishing a hand-drawn map of prominent targets in Mumbai to the gunmen at the behest of Lashkar-e-Toiba.
In an interesting development, the division bench differed with the trial court by accepting the police case that Malabar Hill was indeed the final destination of the terrorists. "(The confession statement) will show that these terrorists were proceeding via Chowpatty towards Malabar Hill, which was their final target," said the judges. Last year, the trial court had ruled out the possibility that Kasab and Ismail were proceeding to the upmarket Malabar Hill, where many VIPs stay, when Kasab was nabbed and Ismail was gunned down at Chowpatty.
Kasab was seen on the video-conference screen smiling in his prison cell. But he may have little to worry for a while. It could take years for a death sentence to be executed, even if Kasab moves the supreme court and it upholds the verdict. He can then file a mercy plea with the President.
Kasab, dressed in white prison attire and sporting a thin beard, looked slightly dishevelled but listened intently from the confines of his special high-security Arthur Road cell. However, he showed no anguish or remorse, but grinned and smiled when the verdict came.
Giving Ansari and Shaikh the "benefit of doubt", the HC ensured that it was a mixed bag for the state. "I have advised the chief minister to challenge the acquittals in the supreme court,'' special public prosecutor Ujjwal Nikam later said. He added he was elated with the death confirmation.
Calling Kasab`s crime the "rarest of rare``, the judges said they had no hesitation in awarding him the death penalty for the "brutal, grotesque and diabolical" murders. "Kasab is a threat to society," said the judges, adding, "Kasab waged a war against the government of India pursuant to a conspiracy which was hatched in Pakistan. The object was to destabilize (the country) and to weaken India`s economic might.... There is hardly any scope for a person like Kasab to be rehabilitated or reformed." The 26/11 attacks had caused damages to the tune of over Rs 150 crore, noted the court.
Kasab`s rampage at CST and Cama, which accounted for a majority of deaths—around 68—weighed heavy with the high court. "The brutality, perversity and cruelty exhibited by Kasab while committing multiple murders of innocent men, women, children, aged persons and policemen without provocation for a motive which has no moral justification makes this case a gravest case of extreme culpability," said the judges.
The court signalled a zero tolerance for terrorism and looked to send a strong message to deter any future terrorists. "The harsh penalty of death is necessary to warn those who may want to take a similar path. Strong arm of law must deal with Kasab firmly otherwise a wrong signal will be sent that the courts are ineffective in dealing with crimes as serious as this. Soft handling of a crime like this will erode the public confidence in the efficacy of law," the high court said.
Defence lawyers Amin Solkar and Farhana Shah had urged for leniency pointing out that Kasab was barely out of his teens, not sane, emotionally disturbed and a mere tool in the hands of the LeT. The high court refused to accept this, referring to his confessional statement where he expressed displeasure that more people could have been killed at CST if the killers arrived earlier. The judges noted that they had observed his demeanour during the hearing and Kasab had never shown any repentance or remorse. "He has never shown any repentance, but has loudly proclaimed that he wants to create more fidayeen by setting an example," said the judges.
The police theory that foreigners were targeted with an intention to "overawe" the country and harm its relations with other nations received a major fillip. The high court said the intercepted conversations of the terrorists holed up in the Taj and Nariman House "reflected anti-Jewish and anti-Israel sentiments. The terrorists attacked hotels where foreigners, India`s esteemed guests, stay because that would have adverse effects on India`s relations with foreign countries". The court further said that the attack on the crowded CST station, which was under the Union government, was a direct challenge to the Centre`s authority.
The court relied on Kasab`s own confession and the testimony of other witnesses to agree with the prosecution that Malabar Hill was the final destination of the two terrorists. "Deceased Abu Ismail told Kasab that he would tell him after he reaches Malabar Hill (about their target). This part of the confessional statement of Kasab fits in with the prosecution case deposed to by the witnesses. It is corroborated by them." Special judge M L Tahilyani had last year rapped the Mumbai police for its investigation into this aspect. The judge had then said that Kasab and Ismail were not planning to leave CST and had done so only after meeting with stiff resistance from the police. "Both terrorists were never destined to go to Chowpatty. By mistake they went there," the judge had observed.
On Monday, the high court upheld the 86 charges against Kasab, including 31 he is specifically charged with. He was sentenced to death on five counts -- waging war against India, murder, conspiracy to murder, common intention to commit murder and participating in an act of terror (the last under the Unlawful Activity Prevention Act).
Kasab was held guilty for individually murdering the Kuber`s navigator Amarchand Solanki, constables Ambadas Pawar and Tukaram Ombale, and CST commuters Sitaram Sakhare, Rahamutall Ibrahim, Vinod Gupta and Abbas Ansari. Along with Ismail, he killed 66 people, including ATS chief Hemant Karkare, and senior cops Ashok Kamte and Vijay Salaskar.
The court also convicted Kasab of robbery, dacoity, kidnapping, voluntarily causing hurt, grievously hurting a public servant, wrongful confinement and causing mischief with explosives (all Indian Penal Code); carrying unlicensed weapons and acquiring and using prohibited guns (Arms Act); possessing and using explosives, planting IED bombs at CST, lobbing hand grenades and causing explosions (Explosives Act); causing explosions to endanger life and property (Explosive Substances Act); damaging and destroying railway property and endangering passenger safety (Railways Act); entering the country without a passport and entering India illegally (Passports Act); and smuggling into India prohibited arms, pistols and ammunitions (Customs Act).