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Why Kasab deserves the maximum punishment

By Sheela Bhatt and Prasanna D Zore
Last updated on: May 05, 2010 13:41 IST
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If Kasab's lawyer K P Pawar argued with vigour on Tuesday, then public prosecutor Ujwal Nikam was tenacious in seeking the highest possible punishment for the Pakistani terrorist. Nikam argued that it would be a travesty of justice if the noose is not awarded to Kasab. Sheela Bhatt and Prasanna D Zore track Tuesday's court proceedings.

Also Read: Why Kasab should get minimum punishment

The killing machine -- that is how Nikam describes Kasab -- deserves nothing, but the gallows.  

"Sir, I opt for, naturally, maximum punishment for Ajmal Kasab. My submission is not banking upon revenge. We do not seek eye for eye. I know that the law never likes to take revenge. But, we want justice."  That is what defence lawyer Ujwal Nikam said on Tuesday, while seeking death penalty to Ajmal Kasab, the main accused in the 26/11 Mumbai terror case.

"There has been a high degree of cruelty and Kasab had total disregard for life. Kasab is a killing machine and such machines are manufactured in Pakistan," the public prosecutor said.

"Such a monster should be given death penalty. He is an agent of devil himself,"  Nikam argued passionately.

So shaken was the court room when Nikam reminded eye witness Farooqui's statement that how Kasab was in a delirious mood when victims were writhing in pain and dying in pain at the Chhatrapati Shivaji Terminus in Mumbai.

Nikam said, "Kasab enjoyed killing innocent people."

In the year-long trial of the high-profile case, Tuesday's was a unique day where all the attention was on Kasab. The central question was whether he should get death penalty or life imprisonment. Under the Indian law, Nikam argued, there is no third option.

It was not easy for Nikam on a day where Kasab's lawyer K P Pawar was fumbling and making some clumsy arguments -- though determined-- to save Kasab from the gallows.

On May 3, Judge Tahaliyani has pronounced Kasab guilty of 80 charges that include murders, conspiracy and waging war against India. Kasab has been made responsible by Mumbai court for 166 killings out of which for seven killings he is found directly responsible. Today the "quantum" of his punishment was argued with both Nikam and Pawar quoting almost similar Supreme Court judgments.
Obviously, there was no professional competition between the two sides because Nikam had dozens of precedents of significant judgments of Indian courts before him.

As soon as he opened his argument, the public prosecutor cited at least nine previous judgments on basis of which he requested death penalty for Kasab.

Nikam gave legally sound presentation where he said according to Bachchan Singh versus State of Punjab and Macchi Singh versus State of Punjab judgments of Supreme Court, the procedure is laid down to decide the "quantum" of punishment.

Though Nikam doesn't speak 'elite' English, his well-researched arguments -- with detailed presentations-- drove home the point that how in Kasab's case, there is nothing to justify his action. Also present in the court room was Nikam's lawyer-son Aniket, who has been supporting his father outside the court. When a section of media was laughing at prosecutor's certain remarks and his English pronunciation, Nikam said, "They are immature."

Nikam quoted that how a balance sheet of aggravating and mitigating circumstances has to be accorded full weightage. Nikam said the equilibrium should be struck between the aggravating and mitigating circumstances before the option to award the death sentence is exercised.

Intervening at one stage, Judge Tahaliyani reminded the both sides that according to the Supreme Court judgment while awarding death sentence one of the factors that should be taken into account is "public outcry".
He was referring to Devender Pal Singh vs State of New Delhi  which said that " when the collective conscience of the community is sufficiently shocked by a crime, it will expect the holders of judicial powers to inflict the death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty."     
No one in the court room missed the point because since the last two days the demand for death penalty is quite loudly heard in the media.

Nikam demolished, one by one, all possible arguments that defence lawyer Pawar was expected to argue. Nikam laid before court past judgments that can support the argument for giving death penalty to Kasab.

Nikam said in the Simon and Others versus State of Karnataka case, Simon, an aide of dreaded forest brigand Veerappan, he had argued that he was forced to join the gang. Simon tired to mitigate arguments of prosecution that wanted to award him the death penalty. However, the Supreme Court didn't accept Simon's argument that he was "compelled" to join the gang of Veerappan who killed hundreds of innocent people and security men. Nikam ensured that Kasab can't get away by saying that he was compelled to get into Lashkar-e Taiba. 

Nikam's main argument against Kasab was that there are three special reasons for awarding the death sentence. One, It is not that he just murdered people, but the manner of murder itself is a special reason to punish him. Two, exceptionally cruel attitude of Kasab should be taken into account. And, three, Kasab has behaved in manner no one in the world would behave. He said, "Kasab's crime could shake the collective conscience of the society at large."

Nikam kept building his argument: "Is the present case the rarest of rare cases? Yes." The Bachchan Singh judgment laid the guidelines to decide the rarest of rare cases and also gave criteria to strike the equilibrium between benefit and burden of the case as per law of jurisprudence.

Nikam quoted from the case in the context.  He said he is aware that the number of deaths is not the sole criteria to call this case rarest of rare. More than anything, Nikam argued, Kasab enjoyed killing people.

"Kasab has lost the right to live. He was not happy even after killing 72 persons and wanted to kill more," Nikam said, making the case rarest of the rare.

He reminded the court how brutally Kasab killed Amarchand Solanki, sailor of the hijacked boat MV Kuber. Nikam said, "The way a butcher kills the goat, Kasab killed Solanki."

Nikam said Kasab didn't kill people for pecuniary or emotional gains. He quoted a Marathi poet who said that its easy to understand people who destruct for selfish reasons. They are called "manavrakshas" but those who destroy for no reason are impossible to comprehend.

After comparing Kasab to a serpent, Nikam soon corrected himself, saying, "Even a serpent would bother it if I compare it to Kasab. He is not a human being, but he is a human snake."  The comment evoked laughter among mediapersons and even Judge Tahaliyani too gave a smirk.

Nikam continued, "Kasab is an agent of devil, disgrace to society and human race." Quoting Ramayan, Mahabharat, shlokas and Shakespeare, he said a bit sarcastically, " I don't find proper words in my dictionary to describe Kasab."
Nikam said, "Kasab's murders were not cold-blooded, but they were frozen-blooded. E
ven God would say that I am overshadowed by Kasab's cruelty."

Nikam pleaded to court that Kasab must be given deterrent punishment because he wanted likeminded people to join him.

"There was no remorse and he said in his confession before the magistrate that he wanted to inspire future fidayeens. Kasab had offered himself to Lashkar-e-Taiba. In Pakistan, he told his friend, we should do something for our own people."

"If death is not awarded, it would be a mockery of justice," Nikam said. 

Nikam reminded the court that if the murder has been committed after advance planning then death penalty should be awarded. In the case of Kasab there are many aggravating circumstances. Fitting his arguments to give Kasab death sentence Nikam said Kasab killed 72 people, including 14 policemen.

"The victims were defenceless and helpless. Out of 72 people killed by Kasab and Abu Ismail, seven were children," he reminded the court.  
In his statement after his arrest, Nikam reminded, Kasab shamelessly said that he was unhappy that they arrived on the Indian shore quite late via sea route. Because they reached CST station after 9 pm, the crowd was not enough so that they could not kill many more people.

Kasab's nature is revealed when he told the police, "Hame bheed kam lagi. Humdono naraz huye.(There are not many people, and we are disappointed). Nikam informed the court.

Summing up, the public prosecutor said, "Kasab is incorrigible."

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Sheela Bhatt and Prasanna D Zore in Mumbai