The Balance Sheet and how it weighs against Kasab

The attack unleashed such a wave of terror that several victims were not even ready to come forward and depose in the court. Kasab is a threat to the society.

KILLING ON KUBER
It was Kasab who suggested that (Kuber) navigator Amarchand Solanki should be killed. Deceased Shoaib and deceased Nazir alias Abu Umar caught hold of Solanki’s legs. Kasab caught hold of his hair and slit his throat. This was a cold-blooded murder.

PERVERSE PLEASURE
Khaliluddin and his son were seriously injured at CST. He identified Kasab in the court as the person who was firing indiscriminately. He has stated that Kasab was in a joyous mood due to the result of his firing. He continued to fire at people for 15 to 20 minutes. It is evident that Kasab took perverse pleasure in killing innocent people.

Another incident (that shows) Kasab’s perversity is narrated by Thomas Uledhar,who was in Cama Hospital. He identified Kasab in the court. He has stated that the terrorists could not attack the patients because they were hiding in the toilets and sisters’ checkup room,but they were searching for patients. In his confessional statement,Kasab has stated that as they entered a building on BT Road… they realised that it was a hospital. They decided that they would go to hospital rooms and kill women and children. They tried to open the doors,but could not because they were closed from inside. This is indicative of Kasab’s warped mental attitude.

NOT SORRY
Before recording his confessional statement,Magistrate Sawant-Waghule asked Kasab why he wanted to make it. He stated that he wanted to do so because he was not sorry for what he had done. He stated that he wanted more Fidayeen like him to (emerge) after taking inspiration from his work. Thus,he never showed any remorse or repentance for what he had done,but loudly proclaimed that he wanted to be a role model for others.

WANTED TO KILL MORE
In his confessional statement,Kasab has stated that they had decided that he and Abu Ismail would go to VTS (CST),create heaps of dead bodies by firing at people and then they would proceed to Malabar Hill and fire. He has further stated that they reached Mumbai late by one-and-a-half hours. They found that the crowd at CST was much less than what they were shown on the CD and,therefore,they were unhappy. Kasab was obviously unhappy because they wanted to kill more people.

WILLING JIHADI
Kasab was not compelled by the Lashkar-e-Toiba (LeT) to fall in line with LeT’s ideology. His confessional statement shows that he voluntarily joined LeT. He willingly took extensive training for jihad. When wanted Zaki-Ur-Rehaman Lakhvi asked the trainees to stop the operation for a while,he told him that for years he had wanted to successfully carry out the mission and he should not stop now. He did not leave the camp when he was asked to go home for a while. Therefore,it is impossible to say that he was misguided by LeT,that he did not have a mind of his own or that he was merely used by the handlers as a tool. He is not a misguided person. He knew the consequences of his actions and voluntarily joined (the conspiracy).

WAR AGAINST INDIA
Perhaps the weightiest aggravating circumstance is that Kasab waged a war against the Government of India pursuant to a conspiracy which was hatched in Pakistan,the object of which was to,inter alia,destabilise the Government of India and to weaken India’s economic might. He indulged in mindless killing of innocent people with a view to overawing the Government of India and achieving cessation of a part of Indian territory. There was an attempt to damage its secular fabric.

Kasab along with co-conspirators killed policemen. He and his co-conspirators engaged the policemen and commandos in battle. An effort was made by the conspirators to keep people hostage so as to make the Government of India helpless and accede to their unlawful demands. They challenged the Indian Army and the State Police. Kasab targeted CST which is under the command of the Central Government… Kasab challenged the sovereign authority of the Republic of India,which offence calls for the severest punishment.

AGE
The only mitigating circumstance is Kasab’s age,but as stated by the Supreme Court (in earlier cases) age is not always a decisive factor for giving lesser penalty of life imprisonment. The extreme brutality and diabolic nature of the crime can override this consideration. The brutality,perversity and cruelty exhibited by Kasab… make this case a gravest case of extreme culpability. The conduct of Kasab shows that his mental age overrides his physical age. He has never shown any repentance,but proclaimed that he wants to create more Fidayeen by setting an example.

SANE,SCHEMING
It is impossible to agree with (defence lawyer) Solkar that Kasab is mentally unstable or that he has committed these crimes because he was emotionally disturbed. This submission was rejected by us by our reasoned order dated 15/12/2010. That order has assumed finality. In any case,in our short interaction with Kasab on videoconferencing,we observed his demeanour. He did not appear to be repentant at all. He was perfectly sane. All his actions,the manner in which he committed the crime,his cleverly trying to change his stand in the court and other attendant circumstances portray a scheming mind and not the mind of a mentally unstable person.

PLANNED RETURN
It was argued that Kasab is a Fidayeen,that he had come here to die,that he will become a martyr and that will encourage more people to take his path. We unhesitatingly reject this argument. It is important to note that on the GPS,the terrorists had saved the routes from Mumbai to Karachi. There was,therefore,a desire to go back after successfully achieving the despicable target and embark upon similar activities… The argument that he will become a martyr and that,therefore,death sentence should not be awarded to him does not deter us from confirming the death sentence. We want those who are desirous of emulating him to know that courts do not take a kindly view of such people.

NO HOPE
There is hardly any scope for a person like Kasab to be rehabilitated or reformed. In any event,in some cases,the harsh penalty of death is necessary to warn those who may want to take a similar path… Soft handling of a crime like this will erode the public confidence in the efficacy of law.

NO ALTERNATIVE
Examined in the light of the settled principles and after drawing the balance sheet,we are of the considered opinion that in this case,the lone mitigating circumstance i.e. young age of Kasab,must recede in the background. Even after according maximum weightage to the age factor,we feel that there is no alternative but to confirm the death sentence. This is,indeed,(among the) rarest of rare cases involving an uncommon and unprecedented crime for which a sentence of life imprisonment is inadequate. We feel that we would never be as confident as we are today in confirming the death sentence. We are of the opinion that the death sentence must be confirmed.

DUTY TO VICTIMS
Before we part with the judgment,we must mention that in this terror attack,some brave policemen and an NSG commando have laid down their lives for the people. Some of them were seriously injured while dealing with the terrorists. We will be failing in our duty if we do not acknowledge their sacrifice. We close this judgment by expressing our deepest sense of gratitude to them.

Hence,the following order:
(A) The appeal field by Kasab being Criminal Appeal No.738 of 2010 is dismissed.
(B) Death sentence of Kasab is confirmed and Confirmation Case No. 2 of 2010 is disposed of accordingly.
(C) The appeal filed by the State of Maharashtra being Criminal Appeal No. 606 of 2010 (against acquittal of Fahim) is dismissed.

Blood on Ismail’s pocket,none on map: why Fahim stays acquitted
alleged role

(According to Kasab confession) they were also shown a few sketch maps and were told these maps were prepared by Sabauddin Ahmed Shaikh and Fahim Ansari of Indian origin,who are in custody in connection with an incident of firing at Rampur Police Camp.

UNRELIABLE WITNESS
The star witness of the prosecution is Naruddin Shaikh (of Goregaon). He claims Ansari is his childhood friend. He is a driver by profession. In our opinion,his statement that he went to Nepal as a tourist with Bharat Thakur cannot be accepted without corroboration. He does not appear to be a person who can afford to go on pleasure trips to foreign countries frequently.

SPOTLESS MAP
The sessions judge has disbelieved the prosecution case that the map was found in the right side pocket of the cargo pants worn by deceased Abu Ismail on the ground that considering the fact that Ismail was carrying this map with him for a long period of time,(it) would have been soiled. Since the map is a thin paper,there would have been wrinkles. Ismail had received serious injuries and blood was oozing from those injuries; therefore,there would have been bloodstains on the map. Ismail was kept on a stretcher which is C-shaped. Therefore,the blood gathered in the curve of the stretcher must have percolated through the trousers. Since there are no bloodstains (on the map),the prosecution story must be rejected.

CARGO PANTS
It is true that on the right leg of Ismail,there were no injuries. There was only one abrasion. It is also true that since the map was kept in the front pocket,which is on the upper thigh,blood which might have collected in the curved portion of the stretcher could not have reached there. But… we had a look at the cargo pants. There are small spots of blood on the border of the pocket. We find that the appeal memo contains a sketch of the pocket. It shows that there were bloodstains.

MISSING LINK
In the ultimate analysis,we feel that… though it is possible to hold that Ansari did stay in Shantabai Bhosale’s house in South Mumbai by impersonating as Sahil Pawaskar,and it is also possible to hold that he did take admission in Softpro Computer Education,Fort,Mumbai by impersonating as Sahil Pawaskar,this evidence does not help the prosecution because it has not established beyond doubt the handing over of maps by Ansari to Shaikh in Kathmandu in January 2008.

So far as absence of wrinkles and bloodstains on the map is concerned,the view taken by the sessions judge is a reasonably possible view. Ansari’s acquittal must,therefore,be upheld.

BENEFIT OF DOUBT
The prosecution has not been able to establish its case against Shaikh… In fact,once we hold that Shaikh’s evidence is not corroborated and,therefore,the prosecution case about the exchange of maps in Kathmandu cannot be accepted,Shaikh cannot be convicted. Ansari and Shaikh must get the benefit of doubt.