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How Kasab's fate was sealed in the court-room

Last updated on: May 06, 2010 20:58 IST

It was an unusual day in Mumbai's life. Almost everybody knew what the judgment in the 26/11 case would be.

Some said it crudely, some said it loudly and some wished it silently -- that Ajmal Kasab, who cruelly and mindlessly killed 72 people with his AK-47 and grenades, should be given the death penalty.

But, then, under the Indian law a judge also has the option to interpret the crime and Kasab's own circumstances to forward the justification for giving him life imprisonment.

All hell would have broken loose had Judge ML Tahaliyani done that but, legally, that option was available, even though it could have been challenged in the higher courts.

As it ended, it was a day without surprises.

The court started the proceedings at 12.45 pm. "Silence!" said the assistant to the judge before Tahaliyani entered the court-room. Accused number one in the 26/11 Mumbai terror case, Kasab, came to his box after the judge started the proceedings.

Some 150 reporters waited to hear that loaded sentence about "phansi ki saaza" that we Indians are accustomed to hear in Hindi films.

Judge Tahaliyani has handled the case with ease and a certain style. He is fully aware that reporters want to rush to their mobile phone, television cameras and to their computers to tell the world about Kasab's fate. One could not but think of how his parents must be waiting in a village in Pakistan for news about their son.

The judge told the policemen to lock the door to the court-room and not open it till further orders. Special public prosecutor Ujjwal Nikam informed the court that some documents have arrived from Lucknow in connection with Fahim Ansari and Sabauddin, two other accused who were acquitted on Monday by the court.

Then, the judge explained in detail why he gave the maximum punishment to Kasab.

Although the judge said, "He should be sentenced to death…He should be hanged by the neck till he is dead" at 1.35 pm, the first hint that Kasab has been awarded 'phansi' came quite early.

Before delivering his judgment the judge asked Kasab's lawyer K P Pawar, "Can I ask him if he wants to say anything?"

Pawar asked Kasab to stand up, and told him, "You may talk to the judge."

Kasab refused to say anything. He seems to have gone into a deep depression since the last one month. He doesn't move, doesn't talk, he looks pale and uninterested. It is possible that this is due to his solitary confinement.

His lawyer and the Mumbai police strongly deny that anything is wrong with Kasab.

"Aap ko kuch bolna hai sazaa ke baare mein? (Do you want to say something about your punishment)?" the judge asked Kasab. That was the time he tried to look at him properly.

Then, judge Tahaliyani added, "Teen offenses mein aapko phansi ki sazaa ho sakti hai (you could be given the noose for three offences)!" The entire court-room got the message as the judge uttered the words. He then narrated the three offences in Hindi to Kasab who was on his feet and covering his face with his palm. The three charges were -- murders, terrorism and waging war against India.

Kasab nodded his head, shook his palm and sat down.

One knew that now that the Kasab story was over.

This Pakistani boy who did the unthinkable and unpardonable will never be free again.

In the enclosure where policemen and lawyers were sitting, there was excitement.

Ujjwal Nikam stood up to request the court that the judge should also pass an order for compensation for loss of properties during the 26/11 attack, but the judge was reluctant.

He argued back, "It is under my purview. I can pass it, but who will pay? How will you recover it and from whom will you get the money?"

Looking at Kasab, Judge Tahaliyani then said, "(Pakistani) Diplomats have not come, even to engage a lawyer."

Nikam said that during the Mumbai attack Rs 155 crore worth of property was destroyed. 

However, the judge didn't pass any order for compensation since the money could not be recovered from the terrorist organisation Lashkar-e-Tayiba or Kasab.

Before giving the final verdict, the judge went into details of the merit of his decision to award the death penalty. The judge said prosecutor Nikam has relied upon judgments by Bachchan Singh and Machi Singh that laid down guidelines for the death penalty. Under that a balance sheet of 'aggravating' and 'mitigating' circumstances are to be prepared and only then can the maximum punishment be awarded.

Judge Tahaliyani said defence lawyer Pawar has argued that there were 'mitigating' circumstances in Kasab's case. Pawar said Kasab suffered from "mental disturbance," but the judge said, "I completely reject your argument. On the contrary, he appeared mentally prepared."

The second argument of the defence lawyer was about the possibility of reforming Kasab. When there is scope for reform and rehabilitation of a criminal, he can be given a lesser punishment.

But the judge said, "The probability of reform is ruled out. The way he has committed the offence doesn't give scope for it. The court has noted that this man has voluntarily gone to the doors of the LeT in Rawalpindi. He himself offered to become a mujahid."

The court says Kasab even refused to go to his native place in his early days, and said there is no chance of reform in his case. Pawar had said that Kasab committed the crime because he thought it was "morally justifying."

The judge rejected the argument saying there is no bona fide argument or evidence that Kasab did the act under duress or because of pressure from the LeT or its chief Hafeez Saeed. "There was no duress, no pressure on Kasab. Rather, when they were in Karachi, their travel got delayed. At that time Kasab was anxious to attack India."

Judge Tahaliyani, while awarding Kasab the death penalty, said he accepted Nikam's argument that "Kasab committed the murders with previous planning. It was a meticulous and systematic act. Modern equipment was used to ensure that the attack was successful."

Further arguing the decision to award the harshest penalty, the judge said, "Brutality is writ large in his act. I don't think any words are required to prove it. It was writ large on the faces of witnesses."

The special court in Mumbai also noted that Kasab had shown exceptional depravity.

At CST station, women and children had been killed, apart from many police officers. These two factors were noted by the court while deciding the quantum of punishment. The court said in unambiguous terms that it is difficult to prepare a balance sheet for Kasab. All the factors were going totally in favour of the prosecutor's case.

Judge Tahaliyani quoted from many Supreme Court judgments and said that "in this case it is impossible to mitigate any circumstances to favour the accused number one (Kasab)."

While quoting from a judgment he said, "It will be a mockery of justice to let the accused escape."

The judge said the harshest deterrent is necessary, otherwise the common man will lose faith in courts.  Quoting from judgment after judgment that dealt with the death penalty  Judge Tahaliyani said, "The court must not neglect the rights of criminals but the court must protect the rights of victims and society at large."

Judge Tahaliyani said due to previous Supreme Court judgments he was unable to give any other punishment to the accused.

The judge also noted that Kasab is a foreigner who voluntarily became a mujahid. He said there was clear instructions to all the accused to attack India, "They were determined to die," he said.

The judge surprised many when he recalled the Kandahar hijack of 1999 and pointed out that to release one prisoner, an airplane was hijacked and the government of India had to release the prisoner. Citing this incident, the judge said, "Keeping such a person alive will be a danger to society. It will be a constant challenge and a menace to society."

The court gave arguments and judgments in haste as reporters wanted to rush out and broadcast the news. Judge Tahaliyani listed out all the sections of the Indian Penal Code and various laws under which Kasab got four instances of death penalty and five of life imprisonment, and fines for many offences. The judge said the quantum of punishment is decided under the IPC's Section 120b read with Section 304, Sections 121 and 16 of the Unlawful Activities Prevention Act; Sections 302 of the IPC for the murder of policeman Tukaram Omble and others; Section 303 read with Section 34 of the IPC; and Section 302 read with Sections 109 and 123 of the IPC.

When Kasab was told by the judge, "Kasab, court ne kaha marte dum tak aapko phansi pe latkaya jaye (the court has decided that you be hanged till death)," he showed no reaction or emotion. He only told hawaldar Bangdeo Yedekar to allow him to escape to his solitary confinement.

Sheela Bhatt in Mumbai