New Delhi: The Supreme Court Wednesday upheld the death sentence of Ajmal Kasab, the only Pakistani terrorist caught alive after the 26/11 Mumbai strike that claimed 166 lives, saying he never showed any remorse.
"We...hold that in the facts of the case, the death penalty is the only sentence that can be given to the appellant. We hold accordingly and affirm the convictions and sentences of the appellant passed by the trial court and affirmed by the high court," the apex court bench of Justice Aftab Alam and Justice C.K. Prasad said.
The saddest and the most disturbing part of the case is that Kasab never showed any remorse for the terrible things he did, the court said.
"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," the judges noted.
Kasab, one of the 10 Pakistanis who sneaked into Mumbai on the night of Nov 26, 2008, for a terror strike in the city that ended on Nov 29 afternoon, had moved the apex court challenging the death sentence awarded to him by a trial court, which was later confirmed by the Bombay High Court.
The apex court rejected Kasab's contention that the terror attack was a war against the government of India and not against people.
"The primary and the first offence that the appellant and his co-conspirators committed was the offence of waging war against the government of India," the court said.
"It does not matter that the target assigned to the appellant (Kasab) was CST Station where they killed a large number of people...What matters is that the attack was aimed at India and Indians."
The court said the government of India was only the elected organ of the state and the embodiment of the sovereign powers.
"The use of the phrase 'government of India' to signify the notion of sovereignty is consistent with the principles of public international law, wherein sovereignty of a territorial unit is deemed to vest in the people of the territory and exercised by a representative government," the judges said.
Justice Prasad said that it was crystal clear that the conspiracy for the attack was hatched by Pakistanis in Pakistan.
"I am more than certain that the planning and conspiracy to commit the crime were hatched in Pakistan, the perpetrators of crime were Pakistanis trained at different centres in that country, and the devastation which took place at various places in the city of Mumbai, were executed by the appellant in furtherance thereof," he said.
The court rejected the contention by senior counsel Raju Ramachandran, who appeared for Kasab, that if his confession was excluded from consideration, then there was not enough evidence to prove the charge of larger conspiracy against him beyond reasonable doubts.
"...the confession by the appellant was quite voluntary and there was no violation of any constitutional or legal right of the appellant in the recording of the confession. Hence, there is no reason for not taking the confession into consideration to judge the charges against the appellant," the court observed.
"We are clearly of the view that the confessional statement recorded by the magistrate is voluntary and truthful, except insofar as it relates to the other two accused, namely, Fahim and Sabauddin."
The apex court did not accept Kasab's plea that not providing him a lawyer soon after his arrest vitiated the entire process, including his trial and consequent conviction and sentencing.
The court said that a trial was vitiated if the accused was not provided with legal assistance but the same did not hold in the case of not providing legal assistance in pre-trial stage.
"And to say that any failure to provide legal aid to the accused at the beginning, or before his confession is recorded under Section 164 CrPC, would inevitably render the trial illegal is stretching the point to unacceptable extremes," the court said.
It noted that efforts were made to provide Kasab a lawyer but he refused it every time, saying that he did not need an Indian lawyer.
Describing his demand for a Pakistani lawyer "foolish and impractical", especially when Pakistan was denying that he was their citizen, the court said: "There is no question of any violation of any of the rights of the appellant under the Indian constitution."
The court also rejected Kasab's plea that when he agreed to have legal assistance, his lawyer was not given sufficient time to prepare his defence.
The 400-plus page judgment said that the time given to Kasab's lawyer was "sufficient".
The court also upheld the acquittal of Fahim Ansari and Sabauddin Ahmed who were accused of providing topographical inputs to Kasab and his accomplices prior to the 26/11 attack.
The Maharashtra government had challenged the acquittal of Fahim and Sabauddin by the high court, which had upheld Kasab's death penalty Feb 21, 2011.
Kasab was sent to the gallows by a Mumbai trial court May 6, 2010.
An apex court had reserved the verdict on the conclusion of arguments that spread over nearly three months, starting Jan 31.
Kasab and his nine associates who had sailed from Karachi reached Mumbai after they hijacked private Indian ship M.B. Kuber and killed its navigator Amar Chand Solanki.