Mumbai, Feb 21: Nine months after he was handed down death penalty by the trial court, the Bombay High Court today upheld the sentence of Pakistani terrorist Ajmal Amir Kasab for the "brutal and diabolical" 26/11 Mumbai attacks aimed at "destabilising" the government.
The court, however, upheld the trial court's acquittal of two alleged Indian co-conspirators Faheem Ansari and Sabauddin Ahmed for want of corroborative evidence.
Showing no signs of remorse, 24-year-old Kasab, clad in a white kurta and sporting a beard came on the screen five minutes before the bench sat and was seen smiling in the Arthur Road jail.
"Aapko sazaye maut yeh adalat barkarar karti hai. Ab aap Supreme Court mein appeal zahir kar sakte hai" (This court upholds your death sentence and you may appeal in Supreme Court)," Justice Ranjana Desai of the division bench also comprising Justice R V More told Kasab who appeared through video conference.
Dismissing an appeal filed by state Government against acquittal of Faheem and Sabauddin, the judges said, "We agree with the trial court that there is no corroborative evidence to prove their involvement. The evidence of witnesses are not credible and the main link is missing".
The court held that Kasab's crime fell under the rarest of rare category deserving capital punishment.
"It is rarest of the rare case and is an uncommon crime...there is no scope for reform or rehabilitation and a harsh penalty of death is required. Kasab has never shown any signs of remorse and we also have observed that he has not shown repentance whenever he appeared on video conference", the bench remarked.
In its 1208-page judgement, the court also observed that Kasab was not influenced by anyone and that he had applied his own mind and voluntarily joined Pakistan-based terror outfit Lashkar-e-Toiba (LeT).
Confirming the death penalty, the bench observed, "Kasab waged war against the Government of India pursuant to a conspiracy which was hatched in Pakistan, the object of which was to destabilise Government of India and weaken India's economic might."
"He indulged in mindless killings of people with a view to overawing Government of India and achieve cessation of a part of Indian territory. There was an attempt to create ill-will and disaffection between different religions so as to damage its secular fabric. They (terrorists) challenged the Indian Army and the State Police," the bench observed.
"He (Kasab) has a scheming mind and it is concluded that he is a fidayeen attacker and solely responsible for seven murders, including that of ATS chief Hemant Karkare and police officers Ashok Kamte and Vijay Salaskar", the judges said.
The court noted that Kasab in his confessional statement made it clear that he wants more 'fidayeens' like him to be created and proclaimed that he wanted to be a role model for others.
"We want those who are desirous of emulating him to know that courts do not take a kindly view of such people.
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," the judges noted, adding, "Soft handling of a crime like this will erode the public confidence in the efficacy of law."
Kasab's death penalty was upheld on charges of criminal conspiracy, waging war against the nation, IPC section related to murder and under sections of Unlawful Activities (Prevention) Act. The court also upheld his conviction on 19 counts under IPC, Arms Act, Explosives Act, Explosive Substances Act, Foreigners Act, Passport Act and Railway Act.
"The murders were committed in an extremely brutal grotesque, diabolical, revolting manner so as to arouse extreme indignation of the community. The crime is enormous in proportion. The magnitude of attack is indicative of the pre-planning. Kasab took perverse pleasure in killing people and is a threat to the society," it read.
The court disagreed with arguments of defence lawyer Amin Solkar that Kasab is mentally unstable and had committed the crime because he was emotionally disturbed.
"He was perfectly sane. He was in proper frame of mind. 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 a mind of a mentally unstable person," the judges noted.
The judgement mentioned the sacrifice made by some brave policemen and an NSG commando in fighting terrorists.
"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," it said.
Upholding the trial court's acquittal of Faheem and Sabauddin, the court observed, "The view taken by Sessions Judge regarding their involvement cannot be called unreasonable, palpably false, manifestly erroneous and demonstratively unsustainable which merits our interference."
Faheem and Sabauddin must get the benefit of the doubt, the bench remarked, adding in an appeal against acquittal unless the view taken by the trial court is totally perverse and unsustainable, it cannot be disturbed.
The judges discarded a portion of Kasab's confessional statement which referred to the involvement of the duo. "We find no difficulty in excluding that part of the confessional statement which refers to the duo's involvement as there is no sufficient corroboration to that part," they said.
The court also noted that the prosecution has not established beyond doubt the handing over of maps of 26/11 targets by Faheem to Sabauddin in Kathmandu in January 2008.
Mumbai police's elite crime branch was again left red-faced today after Bombay High Court dismissed its appeal challenging the acquittal of Fahim Ansari and Sabauddin Ahmed Shaikh in the 26/11 attacks case as co-conspirators.
With the prosecution's case linking the duo with the crime being rejected, Special Public Prosector Ujjwal Nikkam attempted to put a brave face saying he had already spoken to Maharashtra Chief Minister Prathviraj Chavan and Home Minister R R Patil for filing an appeal against the acquittal.
The division bench comprising Justice Ranjana Desai and Justice R V More while dismissing the plea of state government said "we are of the view that the view taken by learned Sessions Judge so far as involvement of Ansari and Shaikh in this case is concerned, cannot be called unreasonable, palpably false, manifestly erroneous and demonstratively unsustainable which merits our interference."
The division bench again pointed out in its judgment that the map allegedly handed over by Ansari, who is already an accused in a case of shooting down CRPF personnel at Rampur in Uttar Pradesh, to a person in Nepal could not be corroborated.
Prosecution had claimed that the same map was recovered from the pocket of Abu Ismail, a terrorist shot dead during an encounter that led to arrest of Ajmal Kasab.
The high court concurred with the view taken by Sessions Judge M L Tahaliyani that the map recovered from Ismail's pocket should have some wrinkles on it and blood spots as the Lashker-e-Taiba(LeT) terrorist was badly injured in the gun-fight.
The prosecution in its appeal had claimed that the sessions judge had erred in making this opinion. However, the High Court in its ruling said "we had a look at the cargo pant, particularly the pocket from where the map was recovered."
"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 blood stains on the corner of the right side of the pocket.
"There are two spots of blood on the upper portion. This fact is admitted in the appeal memo. Thus, the prosecution has also come with the case that there were blood stains on the corner and upper portion of the right side pocket. In such circumstances, the view taken by learned Sessions Judge on this aspect cannot be called perverse." PTI