A self professed terrorist:
We are unable to accept the submission that the appellant was a mere tool in the hands of the Lashkar-e-Toiba. He joined the Lashkar-e-Toiba around December 2007 and continued as its member till the end, despite a number of opportunities to leave it. This shows his clear and unmistakable intention to be a part of the organization and participate in its designs. Even after his arrest he regarded himself as a “watan parast”, a patriotic Pakistani at war with this country. Where is the question of his being brain-washed or acting under remote control? We completely disagree that the appellant was acting like an automaton. During the past months while we lived through this case we have been able to make a fair assessment of the appellant’s personality. It is true that he is not educated but he is a very good and quick learner, has a tough mind and strong determination. He is also quite clever and shrewd. Unfortunately, he is wholly remorseless and any feeling of pity is unknown to him. He kills without the slightest twinge of conscience. Leaving aside all the massacre, we may here refer only to the casualness with which the appellant and his associate Abu Ismail shot down Gupta Bhelwala and the shanty dwellers Thakur Waghela and Bhagan Shinde at Badruddin Tayabji Marg; the attempt to break into the wards of Cama Hospital to kill the women and children who were crying and wailing inside; and the nonchalance with which he and Abu Ismail gunned down the police officer Durgude on coming out of Cama Hospital.
The saddest and the most disturbing part of the case is that the appellant never showed any remorse for the terrible things he did. As seen earlier, in the initial weeks after his arrest he continued to regard himself as a “watan parast”, a patriotic Pakistani who considered himself to be at war with this country, who had no use for an Indian lawyer but needed a Pakistani lawyer to defend him in the court. He made the confessional statement before the magistrate on February 17, 2009, not out of any sense of guilt or sorrow or grief but to present himself as a hero. He told the magistrate that he had absolutely no regret for whatever he had done and he wanted to make the confession to set an example for others to become Fidayeen like him and follow him in his deeds.
Even in the course of the trial he was never repentant and did not show any sign of contrition. The judge trying him had occasion to watch him closely and has repeatedly observed about the lack of any remorse on the part of the appellant. The High Court, too, has noticed that the appellant never showed any remorse for the large-scale murder committed by him. This, to our mind, forecloses the possibility of any reform or rehabilitation of the appellant. The alternative option of life sentence is thus unquestionably excluded in the case of the appellant and death remains the only punishment that can be given to him.
Rarest of rare case for death sentence:
This case has the element of conspiracy as no other case. The appellant was part of a conspiracy hatched across the border to wage war against the Government of India and lethal arms and explosives were collected with the intention of waging war against the Government of India. The conspiracy was to launch a murderous attack on Mumbai regarding it as the financial centre of the country; to kill as many Indians and foreign nationals as possible; to take Indians and foreign nationals as hostages for using them as bargaining chips in regard to the terrorists’ demands; and to try to incite communal strife and insurgency; all with the intent to weaken the country from within.
The case presents the element of previous planning and preparation as no other case. For execution of the conspiracy, the appellant and the nine (9) other dead accused, his accomplices, were given rigorous and extensive training as combatants. The planning for the attack was meticulous and greatly detailed. The route from Karachi to Mumbai, the landing site at Mumbai, the different targets at Mumbai were all predetermined. The nature of the attack by the different teams of terrorists was planned and everyone was given clear instructions as to what they were supposed to do at their respective targets. All the terrorists, including the appellant, actually acted according to the previous planning. A channel of communication between the attacking terrorists and their handlers and collaborators from across the border, based on advanced computer technology and procured through deception, was already arranged and put in place before the attack was launched.
This case has the element of waging war against the Government of India and the magnitude of the war is of a degree as in no other case. And the appellant is convicted on the charge, among others, of waging war against the Government of India.
This case has shocked the collective conscience of the Indian people as few other cases have.
The number of persons killed and injured is not only staggeringly high but also as in no other or in extremely few cases. The terrorists killed one hundred and sixty-six (166) people and injured, often grievously, two hundred and thirty-eight (238) people. The dead included eighteen (18) policemen and other security personnel and twenty-six (26) foreign nationals. The injured included thirty-seven (37) policemen and other security personnel and twenty-one (21) foreign nationals. Of those dead, at least seven (7) were killed by the appellant personally, about seventy-two (72) were killed by him in furtherance of the common intention he shared with one Abu Ismail (deceased accused no. 1), and the rest were victims of the conspiracy to which he was a party along with the nine (9) dead accused and thirty-five (35) other accused who remain to be apprehended and brought to court.
The number of policemen and members of security forces killed and injured in course of their duty by the appellant and his accomplice Abu Ismail and the eight (8) other co-conspirators would hardly find a match in any other cases. Tukaram Ombale was killed by the appellant personally at Vinoli Chowpaty. Durgude, Hemant Karkare, Ashok Kamte, Vijay Salaskar and the other policemen in the Qualis van were killed jointly by the appellant and Abu Ismail. The policemen at Cama Hospital were injured, several of them grievously, jointly by the appellant and Abu Ismail. The rest of the policemen and law enforcement officers, including the NSG Commando Major Sandeep Unnikrihsnan, were killed as part of the larger conspiracy to which the appellant was a party.
The loss of property caused by the attack is colossal, over Rupees one hundred and fifty crores (Rs. 150Cr.), again of a scale as in no other case.
The offences committed by the appellant show a degree of cruelty, brutality and depravity as in very few other cases.
The appellant, as also the other nine (9) terrorists, his co- conspirators, used highly lethal weapons such as AK-47 rifles, 9 mm pistols, and grenades and RDX bombs.
As to the personality of the victims, all the persons killed/injured at CST, Badruddin Tayabji Marg and Cama Hospital were harmless, defenceless people. What is more, they did not even know the appellant and the appellant too had no personal animus against them. He killed/injured them simply because they happened to be Indians.
It is already seen above that the appellant never showed any repentance or remorse, which is the first sign of any possibility of reform and rehabilitation.
In short, this is a case of terrorist attack from across the border. It has a magnitude of unprecedented enormity on all scales. The conspiracy behind the attack was as deep and large as it was vicious. The preparation and training for the execution was as thorough as the execution was ruthless. In terms of loss of life and property, and more importantly in its traumatizing effect, this case stands alone, or it is at least the very rarest of rare to come before this Court since the birth of the Republic. Therefore, it should also attract the rarest of rare punishment.
Against all this, the only mitigating factor is the appellant’s young age, but that is completely offset by the absence of any remorse on his part, and the resultant finding that in his case there is no possibility of any reformation or rehabilitation.
In this country death as a penalty has been held to be Constitutionally valid, though it is indeed to be awarded in the “rarest of rare cases when the alternative option (of life sentence) is unquestionably foreclosed”. Now, as long as the death penalty remains on the statute book as punishment for certain offences, including “waging war” and murder, it logically follows that there must be some cases, howsoever rare or one in a million, that would call for inflicting that penalty. That being the position we fail to see what case would attract the death penalty, if not the case of the appellant. To hold back the death penalty in this case would amount to obdurately declaring that this Court rejects death as lawful penalty even though it is on the statute book and held valid by Constitutional benches of this Court.
We are thus left with no option but to hold that in the facts of the case the death penalty is the only sentence that can be given to the appellant.