Is Closure Closer?

n May 6—525 days after Mohammed Ajmal Amir Kasab and his nine accomplices went on a killing spree in Mumbai—he was sentenced to hang until death. As Kasab heard the chilling denouement of that mission, he shuddered, almost wept and asked for a glass of water. The special trial court judge M.L. Tahiliyani pronounced the death sentence at 1.30 pm—the death penalty for four offences and life term in five others. In all, Kasab was held guilty in 80 of 86 offences brought against him. For four of these—murder, conspiracy to murder, unlawful activities and waging war against the nation—he faces the gallows. But will Kasab—described by the prosecution lawyer Ujwal Nikam as “the killing machine (with) manufacturing factory in Pakistan”—be hanged? And, when?

Answers to these questions cannot come from the super-secured courtroom in Mumbai’s Arthur Road jail premises where judge Tahiliyani heard opening arguments on the 26/11 case, presided over the examination and cross-examination of 657 witnesses, read out his verdict and the sentence. The answers now lie elsewhere—in the high court that must now confirm the sentence as required by the Criminal Procedure Code, in the Supreme Court that might hear Kasab’s appeal against the sentence, and finally in Rashtrapati Bhavan should Kasab file for clemency. Between the death sentence and the gallows lies a long and rocky road that traverses over not just the criminality of the 60 hours beginning the night of November 26, 2008, but over the difficult Indo-Pak terrain, geopolitical realities that involve the US, and India’s desire to send out a message about not being a “soft state”.

Kasab, as former Mumbai police commissioner M.N. Singh said, was indeed the face of the 26/11 attacks, but he was also the embodiment of “Pakistan’s designs on India”. This part of the equation could cloud the purely criminal element in Kasab’s case, not in the judicial process but at the executive level where the sentence, if confirmed, will have to be carried out. Kasab’s defence counsel K.P. Pawar, appointed by the special court, kept options open about appealing against the sentence. Noted lawyers say it could take months before the judicial process can be completed. If the death sentence is upheld by the Supreme Court, Kasab can still knock on the doors of the President of India.

“I know he won’t be hanged tomorrow, but I wish he was,” says Vaishali, daughter of assistant sub-inspector Tukaram Ombale who plunged on Kasab with a mere lathi that November night, making his capture possible. Kasab had pumped his AK-47 into Ombale’s stomach; the mere thought of it still gives Vaishali nightmares, but like many others directly impacted by 26/11, she welcomed the sentence “as an obvious thing because how could he not get death?” Ragini Sharma, wife of ticket inspector Sushil Kumar Sharma who was gunned down by Kasab or his accomplice Abu Ismail at CST that night, best represents the sentiment: “There’s some peace within me today that justice is done, but it won’t erase our wounds and scars”.

Nothing, not even hanging Kasab or getting his Pakistani handlers to face trial in India, can bring back the 166 lives lost in that attack. Yet, the guilty verdict and death sentence allowed many in Mumbai, perhaps elsewhere too, a moment of collective catharsis; they would have found their own sentiments in judge Tahiliyani’s words that Kasab “showed exceptional depravity—words cannot express the brutality” of his mission. Nikam, while arguing for death sentence, had variously referred to Kasab as poisonous snake, mad dog, donkey, horse and wolf to emphasise his cruelty. Liberals disagree with the judge’s observations that Kasab “lost his right to humanitarian treatment” citing the old arguments against capital punishment. But in the light of the evidence presented, two days earlier, reading out the operative part of his 1,522-page judgement, the judge had declared that the 26/11 attack “was not an ordinary conspiracy...(it) was waging war” and that Kasab and nine others were stationed in Pakistan where “preparations were made for a type of war”. Accordingly, the court held LeT honchos including Zaki-ur-Rehman Lakhvi, Zarar Shah and Hafeez Saeed guilty as well.

The judgement acquitted two Indian co-accused—Fahim Ansari and Sabauddin Ahmed—in the case. While letting them off, the judge declared that the hand-sketched map found in slain terrorist Abu Ismail’s pocket was surprisingly unstained and the prosecution witness was “unreliable”. This was the 32-year-old Jeevan Kulabkar who operates a public telephone booth at Machimar Nagar, Cuffe Parade, not far from where the ten killers alighted from their rubber dinghy on 26/11. Kulabkar told the court: Ansari had met him almost a year before the attack and wanted him to find a flat on rent, Ansari had given him Rs 5,000 to cover the househunt expenses, and had called him several times on the mobile phone. The prosecution argued that details of these calls from Ansari’s phone records helped the police track down Kulabkar.

The acquittal will be challenged, say police sources, though a final decision will be taken “at the highest levels”. The grounds for appeal are many. Among them, the hand-sketched map matches similar maps found with David Coleman Headly and accepted by the US authorities as evidence. While it is reasonable to argue that the conspirators have access to sophisticated technology like Googlemaps and Wikimaps, it is unreasonable to expect that terrorists would go around with an open laptop and live connection to guide them during an operation—they would have maps in their pockets. Also, if Kasab’s confession was the basis to implicate LeT’s Hafeez Saeed when the investigating authority has little material evidence against him directly, then it would be improper to let off Ansari and Ahmed against whom there is material evidence.

The acquittal, though, allows New Delhi to cast 26/11 as a “pure Pakistan conspiracy” and build further pressure on it to dismantle its terror mechanism. Sources say the Indian duo was not the only route to establish LeT and/or Saeed as masterminds; that link could well be established through Headley. Indian investigators have been given access to Headley later this month and the case against LeT/Saeed could be pursued from that angle. Nailing them would bring some succour. Smita Salaskar, wife of slain cop Vijay Salaskar, echoes the thought of many for now.  he Kasab’s fate, she says, was sealed but the masterminds still remain scot-free.