11. This confirmation case relates to the horrific terrorist attack made on important locations like Hotel Taj, Hotel Oberoi, Chatrapati Shivaji Terminus (for short, “CST”) which are the pride of Mumbai, on the night of 26/11/2008. The terrorist attack continued upto early hours of 29/11/2008. In this terrorist attack, 166 persons died and 238 persons were injured. There was colossal property loss to the tune of about Rs.155,56,77,105/-. The prosecution case is that this attack was masterminded by Pakistan based terrorist organization viz. Laskhar-e-Taiba (for short, “LeT”), which is now known as Markaz-ud-Dawa-wal-Irshad. LeT has its training camps in Pakistan Occupied Kashmir (for short, “PoK”).
893. In the light of the Supreme Court judgments, we have now draw a balance sheet of aggravating and mitigating circumstances. After giving due weightage to mitigating circumstances, we must strike a just balance and exercise the option. For better appreciation, it would be appropriate to note the aggravating circumstances, which are clearly discernible.
(1) A1-Kasab is individually responsible for seven murders. He has committed more than 66 murders in furtherance of common intention of himself and deceased A1-Abu Ismail. He has committed rest of the murders by abetting them by conspiracy.(2) All murders display extreme brutality and cruelty. They are committed after previous planning. Innocent people are mercilessly killed by A1-Kasab with use of AK-47 rifles and explosives. Those killed include women, children, aged people and policemen. The murders were committed in an extremely brutal grotesque, diabolical, revolting or dastardly manner so as to arouse extreme indignation of the community.(3) The crime is enormous in proportion. The magnitude of the attack is indicative of the pre-planning. The attack unleashed such a wave of terror that several victims were not even ready to come forward and depose in the court. A1-Kasab is a threat to the society.(4) A1-Kasab has exhibited extreme perversity and depravity. It was he who suggested that navigator Amarchand Solanki should be killed. Deceased A9- Shoaib and deceased A3-Nazir @ Abu Umar caught hold of the legs of Amarchand Solanki. A1-Kasab caught hold of his hair and slit his throat. The postmortem notes of Amarchand Solanki and confessional statement of A1-Kasab bear this out. This was a cold blooded murder.(5) A1-Kasab planted RDX bomb in a taxi which exploded at Vile Parle killing the innocent passenger and the driver of the taxi and seriously injuring many.(6) PW-52 Khaliluddin and his son were seriously injured at CST due to firing and bomb blast. He identified A1-Kasab in the court as the person who was firing indiscriminately at the people at CST. He has stated that A1-Kasab, who was firing 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 A1- Kasab took perverse pleasure in killing innocent people.(7) Another incident of perversity of A1-Kasab is narrated by PW-108 Thomas Uledhar, who was in Cama Hospital at the relevant time. He had seen A1-Kasab from close quarters. He identified A1-Kasab in the court. He has stated that the terrorists could not attack the patients because they were hiding in the toilets and sister's check up room, but they were searching for patients. In his confessional statement, A1-Kasab has stated that as they entered a building at B.T. Road to avoid police firing, they realized that it was a hospital because he could hear women screaming and children crying. They decided that they would go to hospital rooms and kill women and children. They, therefore, tried to open the doors of the rooms, but could not succeed because they were closed from inside. This is indicative of A1-Kasab's warped mental attitude. He had no qualms about killing patients admitted in hospital .(8) Before recording his confessional statement, learned Magistrate PW-218 Ms. Sawant-Waghule asked A1-Kasab as to why he wanted to make a confessional statement. He stated that he wanted to make a confessional statement because he was not sorry for what he had done. He stated that he wanted more Fidayeens like him to be created 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.(9) In his confessional statement, A1-Kasab has stated that they had decided that he and deceased A1-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 half hour. They found that the crowd at CST was much less than what they were shown on the CD and, therefore, they were unhappy. A1-Kasab was obviously unhappy because they wanted to kill more people. He has, therefore, no value for human lives. He took devious pleasure in killing people.(10) A1-Kasab was not compelled by LeT to fall in line with LeT's ideology. His confessional statement shows that he willingly and voluntarily joined LeT. He had decided to take training for jehad. He willingly took extensive training for jehad. When wanted A2-Zaki-Ur-Rehaman Lakhvi asked the trainees to stop the operation for a while, he told him that for years he wanted to successfully carry out the mission and he should not stop it now. He did not leave the camp when he was asked to go home for a while but continued to serve the trainees. 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 he wanted to be a part of the conspiracy and voluntarily joined it.(11) Perhaps the weightiest aggravating circumstance is that A1-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, destabilize Government of India and to weaken India's economic might. He indulged in mindless killings of innocent 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 of India so as to damage its secular fabric. Waging war is a serious crime which calls for deterrent punishment.(12) A1-Kasab along with co-conspirators killed policemen. He and his co-conspirators engaged the policemen and commandos in a battle. Effort was made by the conspirators to keep people hostages so as to make the Government of India helpless and accede to their unlawful demands. They challenged the Indian Army and the State Police. A1-Kasab targetted CST which is under the command of the Central Government. The terrorist attack made by A1-Kasab was not like any other terrorist attack which merely results in the breach of police tranquility. It was an attack on the Government of India whose stability is most essential and crucial for the very existence of democratic India. A1-Kasab challenged the sovereign authority of Republic of India which offence calls for the severest punishment.
894. The only mitigating circumstance is the age of A1- Kasab, but as stated by the Supreme Court in the aforementioned cases age is not always a decisive factor for giving lesser penalty of life imprisonment. Extreme brutality and diabolic nature of the crime which arouses public indignation can override this consideration. The brutality, perversity and cruelty exhibited by A1-Kasab by 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. The conduct of A1-Kasab shows that his mental age overrides his physical age. He has never shown any repentance, but has loudly proclaimed that he wants to create more Fidayeen by setting an example by his conduct. It is impossible to agree with Mr. Solkar that A1-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 A1-Kasab on Video Conferencing, we observed his demeanour. He did not appear to be repentant at all. 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. It was argued that A1-Kasab is a Fidayeen, that he had come here to die, that his death will fulfill his desire, that he will become a martyr and that will encourage more people to take his path. We unhesitantly 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. We are of the confirmed opinion that any misplaced or unwarranted sympathy would be counterproductive. The argument that he will become a martyr and, therefore, death sentence should not be awarded to him does not deter us from confirming death sentence. We want those who are desirous of emulating him to know that Courts do not take a kindly view of such people.
895. There is hardly any scope for a person like A1-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 similar path. Strong arm of law must deal with A1-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.
896. We remind ourselves of the observations of the Supreme Court in Dhananjay Chatterjee, which are as under:
“In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment”.
897. Thus, the punishment must befit the crime. The punishment must reflect public abhorrence of the crime. The rights of the victims must also be kept in mind. 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 A1-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, a rarest of rare cases involving uncommon and unprecedented crime for which 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. In view of this, we hold that learned Sessions Judge is right in not imposing sentences for minor offences. He is right in not awarding separate sentences for the offences covered by Section 34 and Section 109 read with Section 120-B of the IPC.