Supreme Court of India
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU MUJAHIDversusSTATE OF MAHARASHTRA
- Citation
- 2012 INSC 357
- Decided
- 29 August 2012
- Disposal
- Dismissed
- Bench
- AFTAB ALAM
Holding
The appellant's conviction and death sentence are affirmed because the evidence conclusively proves he was a participant in a conspiracy to wage war against India and committed multiple murders, and the case falls within the rarest of rare category warranting the death penalty.
Summary
The appellant, Mohammed Ajmal Mohammad Amir Kasab, was one of ten Pakistani terrorists who launched a coordinated attack on Mumbai on November 26, 2008, killing 166 people and injuring 238. He was convicted by the trial court on multiple charges including waging war against the Government of India, murder, and terrorist acts, and was sentenced to death five times. The High Court confirmed the convictions and sentences. The Supreme Court, in this appeal, examined the evidence including ocular testimony, forensic evidence, the appellant's confessional statement, and intercepted phone calls. The Court held that the appellant was part of a larger conspiracy hatched in Pakistan to wage war against India, and that his actions were not isolated but part of a coordinated attack. The Court affirmed the death sentence, finding it to be the rarest of rare cases due to the scale, brutality, and lack of remorse. The Court also upheld the acquittal of two other accused (Fahim Ansari and Sabauddin Ahmed) for lack of credible evidence.
Issues considered
- Whether the appellant's trial was vitiated by denial of due process, including the right to counsel and protection against self-incrimination?
- Whether the confessional statement of the appellant was voluntary and admissible?
- Whether the charge of waging war against the Government of India under Section 121 IPC was established?
- Whether the death sentence imposed on the appellant was appropriate in the facts of the case?
- Whether the acquittal of accused No. 2 and 3 (Fahim Ansari and Sabauddin Ahmed) was correct?
Legislation cited
- Arms Act, 1959
- Code of Criminal Procedure, 1973s. 161, s. 162, s. 163, s. 164, s. 303, s. 304
- Constitution of Indias. 20(3), s. 21, s. 22(1), s. 39-A
- Explosives Act, 1884
- Explosive Substances Act, 1908
- Indian Evidence Act, 1872s. 10, s. 25, s. 26, s. 27, s. 32
- Indian Penal Code, 1860s. 109, s. 120-B, s. 121, s. 121-A, s. 122, s. 302, s. 34
- Unlawful Activities (Prevention) Act, 1967s. 16
Subjects
terrorist attackwaging wardeath penaltyconfessionright to counselself-incriminationconspiracyrarest of raredue processevidencecriminal trialMumbai attacks26/11Lashkar-e-ToibaPakistannational securitymedia coveragejudicial model
Judgment
[2012] 8 S.C.R. 295
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ A
ABU MUJAHID
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 1899-1900 of 2011 etc.)
AUGUST 29, 2012 B
[AFTAB ALAM AND CHANDRAMAULI
KR. PRASAD, JJ.]
PENAL CODE, 1860: c
ss. 302, 302 read with s.34 and s.302 read with ss.109,
120-B, 121, 121-A and 122 /PC and s.16 of Unlawful Activities
(Prevention) Act, 1967 - 26111 (2008) terrorists' attack on
Mumbai at targeted places by appellant (A-1) along with 9 D
other terrorists (dead accused), in furtherance of a conspiracy
to wage war against Government of India - 166 people killed
and 238 injured - Trial court holding the appellant guilty of
the offences charged and awarding him five death sentences
- Convictions and sentences confirmed by High Court - Held: E
On the basis of ocular evidence alone, the appellant
personally and jointly with deceased accused-1 (DA-1) is
directly responsible for killing 72 persons and causing injuries
of various kinds to 130 persons - He was also found guilty
along with other dead accused as a co-conspirator -
Conviction and sentences awarded by trial court and F
confirmed by High Court are affirmed - As regards A-2 and
A-3, when the attack on Mumbai took place, they were in
custody of U.P. Police in connection with a different terrorist
attack - Both the courts have analyzed the prosecution
evidence in regard to A-2 and A-3 at great length and have G
given very good reasons to hold the prosecution evidence
unworthy of reliance with respect to such grave charges
against the two accused - Both the courts have rightly
295 H
296 SUPREME COURT REPORTS [2012] 8 S.C.R.
A acquitted A-2 and A-3 of all the charges - Unlawful Activities
(Prevention) Act, 1967 - s.16.
ss. 120-8, 121, 121-A and 302- Criminal conspiracy and
conspiracy to wage war against Government of India -
8 Terrorists' attack in furtherance of conspiracy to wage war
against Government of India - 10 terrorists dividing
themselves in 5 teams of 2 each and attacking at targeted
places in Mumbai - Plea that appellant's case should be
considered only with respect to the incidents in which he was
C personally involved - Held: In view of the incidents at the
venues of terrorists' attack and the conspirators across the
border being in constant contact with terrorists, it is obvious
that all the ten terrorists were bound together and each team
was acting in execution of a common conspiracy - In view of
the enormous evidence of all possible kinds including the
D recoveries made, it is clear that the terrorists' attack on
Mumbai was in pursuance of a larger conspiracy of which the
appellant was as much part as the 9 dead accused and other
wanted accused persons - The attacks at all the targets were
integrally connected with each other and the appellant and his
E deceased accomplice are as much part of the offences
committed at other places as they are responsible for the
offences committed by them directly - The most clinching
evidence regarding conspiracy comes from recording of
intercepted telephone calls between the terrorists and their co-
F conspirators and collaborator sitting in a foreign land, which
in the light of all facts and circumstances of the case can only
be Pakistan - Evidence Act, 1872 - s.10.
ss.121, 121-A and 122 - "Waging war against the
G Government of India" - Conspiracy -Terrorists' attack on
Mumbai - Expressions "offences against the State" and ''in
like manner and by like means as a foreign enemy would do"
- Connotation of - Held: The expression "Government of
India''. as appearing in s.121, must be held to mean the State
H or interchangeably the people of the country as the repository
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 297
MUJAHID v. STATE OF MAHARASHTRA
of the sovereignty of India which is manifested and expressed A
through the elected Government - It does riot matter that the
target assigned to the appellant and DA-1 was a public
building where they killed a large number of people - What
matters is that the attack was aimed at India and Indians - It
was by foreign nationals - People were killed for no other s
reason than they were Indians - In case of foreigners, they
were killed because their killing on Indian soil would
embarrass India - The conspiracy, in furtherance of which the
attack was made, was, inter alia, to hit at India; to hit at its
financial centre; to try to give rise to communal tensions and c
create internal strife and insurgency; to demand that India
should withdraw from Kashmir; andto dictate its relations with
other countries - It was in furtherance of those objectives that
the attack was made, causing the loss of a large number of
people and injury to an even greater number of people - D
Nothing could have been more "in like manner and by like
means as a foreign enemy would do" - Appellant has been
rightly held guilty of waging war against Government of India
and rightly convicted u/ss 121, 121-A and 122 - Death penalty
for an offence u/s 121, upheld - International Law.
E
SENTENCE/SENTENCING:
Terrorists' attack on Mumbai - Trial court sentencing the
appellant to death - High Court confirming the sentence -
Held: The case has shocked the collective conscience of F
Indian people - It was a case of waging war against
Government of India - The number of persons killed and
injured is staggeringly high - The number of policemen and
security forces killed and injured in the course of their duty
by the appeJlant and his accomplice and 8 other co- G
conspirators would hardly find a match in any other cases -
The offence committed by the appellant show a degree of
cruelty, brutality and depravity as in very few other cases - The
appellant and his co-conspirators used highly lethal weapons
and explosives - It is a case of terrorists' attack from across H
298 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the borer - It has a magnitude of unprecedented enormity on
all scales - In terms of loss of life and property and, more
importantly in its traumatizing effect, this case stands alone
or at/east it is the vety rarest of rare to come before the Court
since the birth of republic - Therefore, it should also attract
s the rarest of rare punishment - Appellant never showed any
repentance or remorse, which is the first sign of any possibility
of reform and rehabilitation - The only mitigating factor is
appellant's young age, but that is completely offset by the
absence of any remorse on his part and the resultant finding
C that in his case, there is no possibility of any reformation or
rehabilitation - In the facts of the case, death penalty is the
only sentence that can be given to the appellant - The
convictions and sentences of the appellant passed by trial
court and confirmed by High Court are affirmed.
D CONSTITUTION OF IND/A, 1950:
Arts. 20(3), 21 of the Constitution and s.164, CrPC - Right
against self-incrimination - Voluntaty confession - Held: Right
against self-incrimination under Art. 20(3) has been statutorily
E incorporated in the provisions of ss.161, 162, 163 and 164
CrPC and the Evidence Act, as manifestations of enforceable
due process, and thus compliance with statutoty provision is
also compliance with constitutional requirements - Right
against self-incrimination under Art. 20(3) does not proscribe
F vo/untaty statements made in exercise offree will and volition
- Code of Criminal Procedure, 1973 - ss.161, 162, 163 and
164 - Evidence Act, 1872 - ss.25, 26 and 32.
Arts. 21, 22(1), 39-A of the Constitution, and ss. 303 and
304 CrPC - Right to consult and be defended by a legal
G practitioner - Held: Right of person accused of an offence to
access to legal aid, to consult and to be defended by a legal
practitioner arises when a person arrested in connection with
a cognizable offence is first produced before a magistrate - It
needs to be clarified that the right to consult and be defended
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 299
MUJAHID v. STATE OF MAHARASHTRA
by a legal practitioner is not to be construed as sanctioning A
or permitting the presence of a lawyer during police
interrogation, as the role of a lawyer is mainly focused on court
proceedings - Accused would need a lawyer to resist remand
to police or judicial custody and for granting of bail; to clearly
explain to him the legal consequences in case he intended B
to make a confessional statement in terms of s. 164 CrPC, to
represent him when the court examines the charge-sheet
submitted by the police and decide upon the future course of
proceedings and at the stage of the framing of charges; and,
for the trial - The right to access to a lawyer flows from the c
provisions of the Constitution and the statutes, and is only
intended to ensure that those provisions are faithfully adhered
to in practice - Every accused unrepresented by a lawyer has
to be provided a lawyer at the commencement of the trial to
represent him during the entire course of the trial - Even if D
the accused does not ask for a lawyer or he remains silent, it
is the Constitutional duty of the court to provide him with a
lawyer before commencing the trial - But the failure to provide
a lawyer to the accused at the pre-trial stage may not have
the same consequence of vitiating the trial, unless it is shown
that failure to provide legal assistance at the pre-trial stage E
had resulted in some material prejudice to the accused in the
course of the trial - That would have to be judged on the facts
of each case - In the instant case, there has been no violation
of any of the rights of the appellant under the Constitution -
He was offered the services of a lawyer at the time of his F
arrest, and at all relevant stages in subsequent proceedings
- The absence of a lawyer at the pre-trial stage was not only
as per the wishes of the appellant himself, but this absence
also did not cause him any prejudice in the trial -Code of
Criminal Procedure, 1973 - ss. 303 and 304. G
Arts. 21, 22(1) of the Constitution and ss. 303 and 304
Cr.P. C. - Right of person accused of an offence to consult and
be defended by a legal practitioner - Duty of Magistrate
concerned - Held: The provisions of the CrPC and the H
300 SUPREME COURT REPORTS (2012] 8 S.C.R.
A Evidence Act fully incorporate the Constitutional guarantees,
and that the statutory framework for the criminal process in
India affords the fullest protection to personal liberty and
dignity of an individual, but the Court takes judicial notice that
there is a great hiatus between what the law stipulates and the
s realities on the ground in the enforcement of the law - It is the
duty and obligation of the magistrate to make the accused
fully aware that it is his right to consult and be defended by a
legal practitioner and, in case he has no means to engage a
lawyer of his choice, that one would be provided to him from
c legal aid at th<:) expense of the State - The right flows from
Arts. 21 and 22(1) of the Constitution and needs to be strictly
enforced - The Court, accordingly, directs all the Magistrates
in the country to faithfully discharge the said duty and
obligation and further make it clear that any failure to fully
discharge the duty would amount to dereliction in duty and
0
would make the Magistrate concerned liable to departmental
proceedings - Administration of criminal justice - Judicial
notice.
CODE OF CRIMINAL PROCEDURE, 1973:
E
S. 164 - Confessional statement - Held: In the instant
case, the confession made by the appellant was voluntary -
The Magistrate gave sufficient time to the appellant to reflect
and reconsider the matter, and cautioned him of the
F consequences; and after satisfying herself that the appellant
was making the statement on his own free will and volition,
proceeded to record his statement u/s 164 - The statement
was recorded in accordance with the procedure prescribed and
there was no violation of any constitutional or legal right of the
G appellant in recording the confession - In the instant case, to
say that the confessional statement was intended to confirm
the investigation is actually to blame the police for an
excellent investigation - Further, police was fully justified in
producing the appellant for confession only after completing
its investigation - The Court is clearly of the view that the
H
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 301
MUJAHID v. STATE OF MAHARASHTRA
confessional statement recorded by the Magistrate is A
voluntary and truthful, except in so far as it relates to A-2 and
A-3 - There was no violation of any constitutional and legal
rights of the appellant in recording of the cofession - There is
no reason for not taking the confession into consideration to
judge the charges against the appellant - Investigation. B
CRIMINAL TRIAL:
Proceedings before trial court - Held: The manner in
which the trial Judge conducted the trial proceedings and
maintained the record, is exemplary - The Court seriously C
recommends that the trial court records of this case be
included in the curriculum of the National Judicial Authority
and the Judicial Authorities of the States as a model for
criminal trial proceedings.
D
MEDIA:
Incidents relating to national security, and safety of public
and security forces -26111 (2008) terrorists' attack on Mumbai
- Security forces fighting terrorists - Live telecast by T. V.
Channels - Held: Court can take judicial notice of the fact that E
terrorists' attacks at all the places, in the goriest details, were
shown live on the Indian TV from beginning to end almost
non-stop - The reckless coverage of the terrr>rists' attack by
the channels gave rise to a situation where on the one hand
the terrorists were completely hidden from the security forces F
and they had no means to know their exac. sition or even
the kind of firearms and explosives they possessed and, on
the other hand, the positions of the security forces, their
weapons and all their operational movements were being
watched by the collaborators across the border on TV screens G
and being communicated to the terrorists, thus, making the
task of the security. forces not only Pxceedingly difficult but
also dangerous and risky - Any attempt to justify the conduct
of TV channels by citing the right to freedom of speech and
H
302 SUPREME COURT REPORTS (2012] 8 S.C.R.
A expression would be totally wrong and unacceptable in such
a situation - The freedom of expression, like all other
freedoms under Art. 19, is subject to reasonable restrictions -
An action tending to violate another person's right to life
guaranteed under Art. 21 or putting the national security in
8 jeopardy can never be justified by taking the plea of freedom
of speech and expression - The shots and visuals that were
shown live by TV channels could have been shown after all
the terrorists were neutralized and the security operations were
over - It must, therefore, be held that by covering live the
C terrorists attack on Mumbai in the way it was done, Indian TV
channels were not serving any national interest or social
cause - On the contrary, they were acting in their own
commercial interests putting the national security in jeopardy
- Constitution of India, 1950 - Arts. 19 and 21 - Judicial notice.
D The appellant-accused(A-1) in Crl. A. Nos. 1899-1900
of 2011 was one of the gang of 10, who, in furtherance
of a sinister conspiracy hatched in Pakistan to wage war
against the Government of India, struck terrorist attack
on Mumbai at targeted places on 26.11.2008 at about 9.50
E P.M. that lasted till 9.00 A.M. on 29.11.2008. In the said
attack 166 people were killed and 238 were injured. Both
the injured and the dead included police and security
personnel as also foreign nationals, besides a large
number of Indian citizens. The appellant and his
F accomplice deceased-accused-1 (D-A1) were
apprehended by police; whereas the 8 other terrorists
were killed in the operation which had been handed over
to MARCOS (Naval) Commandos and National Security
Guards. D-A1 was declared brought dead in the hospital.
G 35 other co-conspirators and collaborators (wanted
accused) remained to be apprehended and brought to
court. The prosecution case, as revealed from the
investigation and the confessional statement of the
appellant made u/s 164 CrPC, was that the appellant was
H imparted rigorous and extensive training in terrorist
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 303
MUJAHID v. STATE OF MAHARASHTRA
activities by the members of Lashkar-e-Toiba and Jamat- A
ul- Cava in Pakistan. He was an active member of the
group, who hatched the conspiracy in Pakistan to wage
war against India by attacking her major cities. In
furtherance of that conspiracy he and 9 other terrorists
sailed from Karachi armed with sophisticated fire arms B
and explosives in huge quantity to strike attack on
Mumbai. On the way, they captured and boarded an
Indian fishing boat ('Kuber') and with the help of its
navigator they reached near the shore of Mumbai, (where
the appellant himself cut the neck of the navigator of c
'Kuber' and hid his body in the engine room), and in an
inflatable rubber speed-boat they reached the Mumbai
shore near Badhwar Park at about 9.00 P.M. on
26.11.2008. PW-28 witnessed their arrival at the said
place and time. They divided themselves into 5 groups
0
of two each and headed for the assigned targets. '
The appellant and his accomplice (D-A1) hired a taxi
for CST. On the way the appellant fixed a bomb under
the seat of the driver. On reaching CST, they left the taxi.
(Subsequently, the said taxi was blown up by the bomb E
blast at Vile Parle at 10.45 p.m. killing its two occupants,
the driver and a passenger. It was witnessed by PWs.
490 and 491 who were injured in the incident). Following
the appellant and D-A1, D-A4 and D-A 9 took a taxi from
Badhwar Park for Leopold Cafe. (They also planted an F
ROX bomb in the taxi, which subsequently exploded in
the Mazgaon area at about 10:30 PM killing its driver, and
two passengers, and causing injuries to 19 people on the
road). They were followed by D-A5 and D-A8 who went
to Hotel Taj by taxi. After them, D-A2 and D-A3 went to G
Nariman House on foot. After these 8 terrorists had left,
the remaining two, namely, D-A7 and D-A6 sailed the
rubber boat to Nariman Point from where they walked into
Hotel Oberoi. PW-29 noticed the said abandoned rubber
boat. He along with others towed it to Badhwar Park and H
304 SUPREME COURT REPORTS [2012) 8 S.C.R.
A informed the Coast Guard about it.
The appellant and D-A 1, after entering CST, opened
indiscriminate firing from their AK-47 rifles and hurled
hand grenades leaving many dead and several injured
including the police and RPF personnel. From there they
8
went to Carna Hospital and killed and injured several
persons there including the police personnel. They
overcame any efforts by the police to stop them. After
corning out from Carna Hospital they attacked the car
meant for a high official of the State Government and
C injured its driver. Thereafter, they attacked a police Qualis
and killed 3 senior Police Officers and three other
occupants of the vehicle, and grabbed that vehicle.
However, they were unable to go very far in the Qualis
as one of its wheel was destroyed in the gunfire. They
D then commandeered a Skoda car from its occupants at
gun point. They were driving the Skoda on Marine Drive
when they were finally apprehended by police at Vinoli
Chowpaty. In exchange of firing, DA1 and the appellant
also received injuries. Both were taken to hospital, where
E DA1 was declared brought dead.
D-A4 and D-A9 launched an attack on Leopold Cafe
with grenades and gunfire from AK-47 rifles and left it
within minutes, leaving behind 11 dead of whom 2 were
F foreign nationals and 28 injured (of whom 9 were foreign
nationals). They walked to Hotel Taj to join the other two
terrorists, namely, D-A 5 and D-A 8.
D-A 5 and D-A 8, on reaching Hotel Taj, first put one
ROX bomb near a tree at a distance of about 50 metres
G from the porch of the New Taj Hotel. This bomb did not
explode and was recovered and seized along with the
bomb planted by the Leopold-team under the
Panchnarna Ext. no. 736. They then entered the hotel and
started firing with their AK-47 rifles on burst mode. On the
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 305
MUJAHID v. STATE OF MAHARASHTRA
fifth floor of the hotel they planted the second ROX bomb, A
placing it under the central dome so as to cause
maximum damage to the building. They took PW-184,
PW-188, PW-224 and two others as hostages (all of whom
escaped subsequently). Later, they were joined by 0-A
4 and 0-A 9. All the while, the terrorists had long B
conversation with their collaborators and handlers on a
mobile phone; these handlers were constantly urging
them to throw grenades and to set fire to the hotel
building. They gave a tough fight to the security forces
till they were finally killed on the morning of November C
29, 2008. By that time, the four terrorists had killed 36
people (of whom 9 were foreign nationals) and caused
injuries to 30 others (of whom 5 were foreign nationals).
O-A2 and D-A3 had gone to Nariman House from
Badhwar Park on foot. On reaching near Nariman House .. D
they first planted an ROX bomb at Petrol Pump. From
there they proceeded to Nariman House, where they
planted the second ROX bomb near the staircase on the
ground (parking level area). These bombs exploded
causing considerable damage. From Nariman House E
they made random firings in all directions and threw
hand grenades at adjoining buildings, roads and lanes
that resulted in death of two and injuries to several others.
The two terrorists, 0-A 2 in particular, were in regular
contact on the mobile phone with their handlers and F
corroborators across the border. At one stage, the
controllers even tried to use one of their hostages, (a
Mexican citizen, later killed), as an intermediary in an
attempt to start some sort of 'negotiation' with the Indian
authorities.0-A 2 and D-A 3 were finally killed by security G
forces in the night of November 28, 2008. But, by then,
they had been able to kill 9 people (of whom 5 were
foreign nationals) and injure 7 others.
O-A7 and O-A6 entered Hotel Oberoi at about 21 :55
H
306 SUPREME COURT REPORTS [2012] 8 S.C.R.
A hours on 26.11.2008 and started firing indiscriminately
from their AK-47 rifles. They fought the security forces
till they were finally killed at about 7.00 AM on November
28, 2008. They left behind 35 people as dead (of whom
10 were foreign nationals) and 24 injured (of whom 7
B were foreign nationals).
On November 27, 2008, at 13:00 hours, PW-42
recorded disclosure statement of the appellant in the
presence of PW-48 and two panch witnesses including
PW-25, which led to the recovery of the Indian boat
C ('Kuber') on the sea and the dead body of its navigator,
a satellite phone, a GPS and a notebook in the said
fishing boat.
Respondents no. 1 and 2(A-2 and A-3 respectively)
o in Crl. A. No. 1961 of 2011 also faced trial along with the
appellant (A-1) in Crl. A. No. 1899-1900 of 2011, on the
basis of conspiracy, on the same charges. The case of
the prosecution was that A-2 prepared, by hand, maps of
various places of Mumbai to facilitate the attack by the
E terrorists and one such map was recovered from the
trouser-pocket of D-A 1. A-2 was said to have handed
over the said maps to A-3 in Nepal and the latter sent/
delivered those maps to the perpetrators of the crime in
Pakistan. Further, A-2, in order to provide logistical
F support to the terrorists landing in Mumbai, was stated
to have made arrangements for his stay in South
Mumbai.
The trial court convicted the appellant (A-1) of the
offences charged and awarded him 5 death sentences;
G for offence punishable (i) u/s 1208 IPC read with s.302
IPC for conspiracy to commit murder; (ii) u/s 121 IPC for
waging war against the Government of India; (iii) u/s 16
of the Unlawful Activities (Prevention) Act, 1967; (iv) u/s
302 IPC for committing murder of 7 persons; (v) u/s 302
H read with s.34 and s.302 IPC read with s.109 and 120-B
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 307
MUJAHID v. STATE OF MAHARASHTRA
IPC. However, A-2 and A-3 were acquitted of all the A
charges. The High Court confirmed the death sentences
of the appellant and also upheld the acquittal of A-2 and
A-3. Crl. A. Nos. 1899-1900 of 2011 were filed as jail
appeals against the conviction of the appellant and Crl.
A. No. 196 of 2011 was filed by the State against acquittal B
of A-2 and A-3.
Dismissing the appeals, the Court
HELD: (Per Aftab Alam, J.)
1.1. In regard to the CST episode, like all other parts C
of the case, the prosecution has gathered a very large
amount of evidence: ocular, forensic and of other kinds,
e.g., CCTV recordings. They have documented
practically every action and movement of the two killers
(the appellant and D-A 1) from the point when DA-1 threw D
the first hand grenade at the passengers on the platform
till they went out of CST through the foot-overbridge on
the side of platform no.1 of the local lines. On the basis
of the ocular evidence alone (not taking into account for
the moment the other evidences) the prosecution has E
presented before the court a vivid and photographic
(figuratively and actually) account of the CST events.
[Para 103] [387-B-D]
1.2. PW-49 is the Informant in connection with the
offences committed at CST. At the time of the assault on F
CST he was an Assistant Inspector of Police attached to
the CST Railway Police Station situated within the
premises of CST. On the night of November 26 and 27,
he was on duty at the police station. At about 21.50
hours, while he was coming out of the PS, he heard the G
sound of firing from the main hall of the main line railway
station. He proceeded to the main hall. Police Inspector
'SS' (one of the policemen killed in the attack), proceeded
to the hall. On coming to the main hall PW-49 saw the
two terrorists indiscriminately firing from AK-47 rifles at H
308 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the passengers sitting in the main hall. He was injured
by the bullets of the terrorists. He intimated the railway
police helpline about the assault by the terrorists and
asked for additional force. He also intimated the
Commissioner of Police, Railways, on his walkie-talkie.
B His statement was recorded at the hospital and on that
basis an FIR in regard to CST episode was registered.
[Paras 105, 109 and 113] [388-E-H; 389-A; 390-A-G]
1.3. PW-54, PW-58, PW-59, PW-60, PW-62, PW-63 and
PW-66 are the other policemen or members of RPF who
C heard the explosion and firing from different places of
their duty and tried to tackle the assailants and some of
them were seriously injured. [Para 136] [397-F-G; 398-A-
C]
1.4. PW-65 was the railway announcer on duty at the
D time of terrorists' attack on CST. At about 9.55 PM he
heard a big explosion. He guessed that it was a bomb
and looked outside the window of his cabin. He saw
passengers from the main line hall running towards the
local lines. Among them some were bleeding. Some
E were trying to rescue others who were unable to flee or
move on account of injuries. He saw two terrorists
coming from the direction of platform no.7. Both were
firing. He then gave a description of the two terrorists
and identified the appellant as the person who loaded his
F rifle sitting down on the floor of the main hall and who
t~rew away his bag. He was then shown the identity card,
Article 61. He identified the photograph as that of the taller
terrorist who was accompanying the appellant. He was
shown a black haversack, Article 219. He identified it as
G the bag that the appellant had thrown away in the main
hall of the local lines. [Para 116,117,118 & 120] [391-C, G-
H; 392-A-B, E-F]
1.5. The evidence of PWs 61 and 102 is extraordinary
in that they did not only witness the incidents but also
H made a visual record of the events by taking pictures of
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 309
MUJAHID v. STATE OF MAHARASHTRA
the two killers in action and also of their victims. The A
pictures taken by these two witnesses, without anything
else, are sufficient to conclude the issue of identification
of the appellant and DA-1 as the killers of CST. Both the
witnesses are professional photographers working with
a national newspaper. Both of them, caring little for their B
own safety and displaying exemplary professionalism,
followed the killers practically at their heels. Their ocular
testimony together with the photographs taken by them
provides a graphic picture of the carnage at CST. PW-
61 prepared a CD of the photographs from the memory c
card, to produce in court. The print-outs were taken from
the CD. [Paras 121,122 and 128] [392-G-H; 393-A-B; 395-
C]
1.6. PW-50 and his daughter, aged about 10 years,
(PW-51); PW-52; PW-53; PW-86 and her h~usband PW-87; D
and PW-88, are some of the passenger witnesses. They
were in the main hall of the main lines waiting for their
respective trains. They were jolted out of whatever they
might be doing or thinking at that moment by the
explosion of the first grenade thrown by DA-1 and from E
that moment they watched, in abject horror, the appellant
and his companion firing indiscriminately at the group of
passengers in the main hall; DA-1 throwing the second
grenade and. then the two moving around on the
platforms in different directions until the spray of bullets F
and the shrapnel from the exploding grenades hit them
or one of their group. Some of them were injured in the
incident. [Para 150-158] [404-C-E]
1.7. After coming out of CST, the appellant and DA-1 G
entered Cama Hospital, and killed 16 persons and injured
17 persons in the hospital and while coming out of it. The
killed and injured ones included the police personnel.
The prosecution, with the aid of 11 eye-witnesses,
namely, PWs 101,103;105,107,106,109,111,118, ~
310 SUPREME COURT REPORTS [2012) 8 S.C.R.
A 138,128,141 has traced practically every step taken by the
appellant and DA-1 from the moment they came out of
CST, entered Cama hospital and eventually left the
hospital. These were the witnesses who were either
themselves injured by the two terrorists or their relatives
B were either shot dead or injured by the terrorists. PW
118, an IPS Officer had an encounter with the two
terrorists in the terrace of the hospital building. PWs 138,
128 and 141 were the other police personnel who saw the
two terrorists, namely, the appellant and DA-1, who after
c coming out of Cama Hospital shot dead a police officer
who was directing the persons coming from CST not to
proceed further but to go back. They tried to tackle the
terrorists but were injured by them. [paras 159-188] [407-
A; 406-H; 414-A; 418-C]
D 1.8. PW-138 stated that he saw the appellant and DA-
1 firing at a white car with a red beacon and DA-1 also
throwing a hand grenade towards the car. PW-139 was
the driver of the said car who was injured by the bullets
of the two terrorists. PW-139 also stated before the court
E that he saw the two terrorists approaching the "High
Rise Building" by taking cover behind bushes. At the
same time, a police vehicle approached his vehicle and
as soon as the police vehicle came close to the two
terrorist, who were hiding in the bushes, they started
F firing at the police vehicle. There was an exchange of fire
from the police vehicle also and when firing from police
vehicle stopped, the two terrorists went to the vehicle,
pulled down bodies of its occupants and drove away in
the said vehicle. [para 194-196] [419-8-C, E; 420-F-G]
G
1.9. PW-136 was one of the member of the police
team in the Qualis which was attacked by the two
terrorists and he was badly injured in the attack. As the
two terrorists approached the vehicle, he kept on lying
in the rear seat of the vehicle pretending to be dead. The
H ta!!er one drove the vehicle while the shorter one
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 311
MUJAHID v. STATE OF MAHARASHTRA
occupied the other front seat. After sometime, he heard A
the sound of firing. The tyre of the vehicle was
punctured. The vehicle stopped. The two terrorists left
that vehicle and left in another car. PW-144, PW-147 and
his wife were the three occupants of the white Skoda car
that the appellant and DA-1 snatched at gun-point. [Paras B
203, 206, 207, 208, 210, 213, 215, 216] [422-E; 424-C-F;
426-B-C]
1.10. PW-1, the Sub-Inspector of Police stated that on
26.11.2008, at about 22.00 hours, the Senior Police
Inspector told him that terrorists had attacked some parts C
of South Mumbai and directed him to go to Vinoli
Chowpaty along with members of the Crime Detection
Branch and to do a nakabandi there by putting up
barricades. Accordingly, he accompanied by 6 members
of the Detection Branch, proceeded to Vinoli Chowpaty. D
On reaching there, they found API, PW-3, alongwith other
police personnel already present there and barricades
already put up. After some time, API, PW-2 (injured) and
an ASI (killed), along with some other policemen, also
arrived at the nakabandi. At about 00.30 hours they E
spotted a Skoda car on Marine Drive coming from South
Bombay towards Chowpaty. Having been alerted in
regard to the Skoda, all the policemen, including PW-1,
signalled to the driver to stop the car. In the exchange
of firing two policemen and both the terrorists were F
injured. All the injured were taken to hospital where DA-
1 was declared brought dead and the appellant was
admitted in the hospital for treatment. Subsequently, one
of the two policemen also died in the hospital. The FIR
of PW-1 was recorded by PW-31 at 2.10 hours, giving rise G
to CR no. 305/2008 (later converted into DCB CID CR no.
182/2008). [Para 223-224, 228, 230 and 237] [429-E-H;
430-B; 431-D-H]
1.11. PW-2 was another member of the police team
at Vinoli Chowpaty that took the appellant in custody. His H
312 SUPREME COURT REPORTS [2012] 8 S.C.R.
A deposition was similar to that of PW-1. He was one of
the two policemen who were injured by the bullets of the
two terrorists. He survived whereas the other died
subsequently in the hospital. PW-3 was another
Assistant Police Inspector present at the nakabandi at
B Vinoli Chowpaty on the direction of Senior Police
Inspector. His narration of the occurrence was similar to
that of PW-1 and PW-2. [Para 240, 241 and 245, 247] [433-
H; 434-A, 435-G-H]
1.12. All the witnesses (except those relating to the
C Vile Parle and Mazgaon Taxi blasts) had a life and death
encounter with the appellant and his associate, (D-A1) at
close quarters. The physical appearance of the two
terrorists .was etched on their minds. All the witnesses
gave a detailed description of the two terrorists to the
D court. They described them by their complexion, age,
body-built and height, stating that one of them was tall
and the other was short. All of them identified the
appellant in court as the shorter of the two assailants.
They also identified DA1 from the photograph on the fake
E identity card, Article 61. They also stated before the court
that they had identified the appellant in the test
identification parades held. This Court accepts their
testimony without any hesitation. [Para 263] [441-G; 442-
A-C]
F 1.13. On the basis of the ocular evidence alone, the
appellant, personally and jointly with D-A 1, is directly
responsible for killing at least 72 people and causing
injuries of various kinds to 130 people. [Para 262] [441-
E-F]
G 1.14. Besides the depositions of the prosecution
witnesses, the prosecution has an enormous volume of
other evidence such as: articles recovered and seized
from places through which the two terrorists passed, and
the places where they stopped; the vehicles-they used
H until they were finally caught; medical and forensic
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 313
MUJAHID v. STATE OF MAHARASHTRA
reports, CCTV recordings, phone call records, Station A
Diary entries, police logs, etc. (Para 262] (441-D-E]
1.15. From the forensic evidence it further appears
that of the 72 dead, at least 6 persons fell to shots fired
by the appellant. Therefore, he is held guilty of multiple
murders, murders with common intention and abetment, 8
attempts to murder with common intention and abetment,
abducting in order to murder, robbery with attempt to
cause death or grievous hurt, and several other allied
offences under the Penal Code, committing terrorist act
u/s 16 of Unlawful Activities (Prevention) Act, 1967, as well C
as offences under the Explosives Act, 1884, Explosive
Substances Act, 1908, and Arms Act, 1959. [Para 264]
(442-D-E]
OTHER INCIDENTS OF TERRORISTS' ATTACK: D
2.1. The prosecution has documented the episodes
at Leopld Cafe, Hotel Taj, Hotel Oberoi, and Nariman
House, as well as Mazgaon Taxi Blast as exhaustively as
it has documented the incidents at "CST", "Cam a
Hospital", snatching of SKODA car and incident at Vinoli E
Chowpaty relating to the appellant and D-A 1. PWs 478,
479, 176, 179, 184, 224, 188,,239, 206, 255, 182,C-W 3, 239,
201, 202, 200, 212, 215, 250 and 208 are substantive
witnesses of the incidents at these places. [para 304-308]
[458-A-H; 458-A-B] F
CONSPIRACY:
2.2. The suggestion that the appellant should only be
held liable for acts committed by him in the company of G
the deceased accused(D-A1) based on the premise that
the two were acting independently and separately from
the other terrorists who, on arriving at Mumbai, went to
four different targets, cannot be accepted. There is no
basis for the assumption that the five pairs were not
connected to each other by a common conspiracy and H
314 SUPREME COURT REPORTS [2012] 8 S.C.R.
A that they were not acting in furtherance of a conspiracy
that was keeping them bound together even after they
had separated physically in order to execute their
assigned roles under the conspiracy. Further, it would be
wrong to proceed on such an assumption even without
B taking into account the evidence of conspiracy that the
prosecution has presented with reference to the other
aspects of the case and the other venues of the terrorist
attack. [para 267) [444-C-D, E-G]
2.3. Keeping in view the incident at the venues of the
C terrorists' violence, it cannot be said that the appellant
and his dead accomplice (D-A 1), were acting separately
and that their actions were not connected in any manner
with the offences committed at the other places by the
other 8 terrorists with whom they jointly made the sea
D journey to Mumbai's shore. It is significant to note that
the nine dead accused could only be known by their
respective names after the appellant identified them
through photographs of their dead bodies. Further, the
names of the four terrorists at Hotel Taj also came in the
E evidence of PW-224 and PW-242. Also the names of the
terrorists who went to Hotel Oberoi and Nariman House
came through in the transcripts of their intercepted
phone calls, in which they are talking with their
collaborators. It is obvious that all 5 teams were bound
F together and each team was acting in execution of a
common conspiracy. [para 272 and 309) [446-D-F; 459-
C-D]
2.4. The landing site for the terrorists at Badhwar Park
was selected with great care and the selection of the
G targets for attack was made with even greater care. The
attacks at all five targets appear to be integrally
connected with each other and the appellant and DA-1
are as much part of the offences committed at the other
places as they are responsible for the offences committed
H by them directly. Therefore, it cannot be said that for the
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 315
MUJAHID v. STATE OF MAHARASHTRA
purpose of the instant appeal, there is no need to go A
beyond the acts directly attributed to the appellant and
his dead associate. [para 310 and 315) [459-E; 461-D-E]
2.5. The evidence of conspiracy brought on record
may be broadly classified under three heads: (i) the B
confessional statement by the appellant; (ii) the objective
findings in the vessel 'Kuber', the inflatable rubber
dinghy, the different places of attack by the other groups
of terrorists and the locations of bomb explosions in the
two taxis; and (iii) the transcripts of the phone
conversations between the terrorists and their C
collaborators and handlers from across the border. The
evidence under any of these three heads is sufficient to
bring home the charges relating to conspiracy against
the appellant. [para 532) [595-C-D]
D
2.6. The phase of planning the attack and training for
it, which form the core of the conspiracy, took place in
Pakistan, and the terrorists, including the appellant, came
to Mumbai in execution of the main objects of the
conspiracy. The appellant was apprehended while he E
was on a killing spree in execution of the objects of the
conspiracy and the transcripts of the phone conversation
of the other terrorists, associates of the appellant and
their foreign collaborators, relate to a time when the
speakers were not only free but were actively involved
in trying to fulfil the objects of the conspiracy. The F
transcripts are by no means any confessional statements
made under arrest and they are fully covered by the
provisions of s.10 of the Evidence Act. There is no
reason not to take them into consideration in support of
the charge of conspiracy against the appellant. [para 533) G
[597-A-C]
State v. Nalini 1999 (3) SCR 1 =(1999) 5 sec 253 -
distinguished.
2.7. On the basis of the disclosure statement of the H
316 SUPREME COURT REPORTS [2012] 8 S.C.R.
A appellant recorded by PW-42 at 13.00 hrs on 27.11.2008,
a search was mounted for "the abandoned Indian boat"
('Kuber') and it was found and brought to Sassoon Dock
in Mumbai with the assistance of the Coast Guard. Two
police officers, namely, PW-48 and PW-42, took the
B appellant and the two witnesses of the disclosure
statement Panchnama, namely, 'PAH' and PW-25, near a
wooden boat brought from the sea that was anchored
near the jetty. The appellant identified the wooden boat
as "the Indian boat" in which he, along with his nine
c associates, had approached the Mumbai shore and on
which he had killed the 'Nakhva' of the boat, whose body
he had kept in the engine room. The appellant then led
the police team and the panchas to the engine room and
showed them the dead body of the 'Nakhva' that was
kept in the corner. The appellant then took out a satellite
0
phone, a GPS and a notebook that were kept concealed
under a wooden plank in the engine room on the left side
of the dead body, and handed them to the police team.
The note book contained, inter alia, entries regarding
guard roster, phone numbers, satellite number, maps,
E GPS, arms and ammunitions, and certain places in
Mumbai. [para 318-325 and 329-334] [463-E; 465-D-G]
2.8. The Thuraya satellite phone and the GARMIN
GPS recovered from 'Kuber', along with four other GPS
F devices recovered from the other sites of terrorist
violence, were sent for forensic examination to the United
States Federal Bureau of Investigation (FBI) where the
data stored in the GPS devices were analyzed by PW-152.
The route shown on page No.36 of the annexure to his
G report showed the intermediate waypoints stored by the
user and those waypoints were between Karachi and
Mumbai. The first waypoint was in the ocean of the Gulf
of Karachi and the last waypoint was in Mumbai. He
added that page No.38 of the annexure to his report
H showed the track back route from Mumbai to the Gulf of
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 317
MUJAHID v. STATE OF MAHARASHTRA
Karachi. Page No.38 showed the waypoints of the journey A
of the user from 'OCEN1' to 'OCENA'. He explained that
'OCEN1' was the coast of Pakistan and 'OCENA' was the
coast of Mumbai. PW-161 explained that the 'OCENS'
waypoints showed the route from south of Pakistan to
south Mumbai. The JALA waypoints showed the route B
from Gujarat to South Mumbai. [para 341-344] [471-H; 472-
A; 473-C-E; 474-D]
2.9. The other articles recovered from 'Kuber', namely,
blankets, shawls and many other items of clothing
contained the stains of sweat, saliva and other bodily C
secretions which were subjected to DNA profiling and,
excepting D-A2, D-A5, D-A7, D-A9, the rest of the six
accused were connected with those articles. The
appellant's DNA matched the DNA profile from a sweat
stain detected on one of the jackets. [para 345] [474-D-F] D
2.10. PW-34 and another person ('PKN') witnessed the
seizure of the rubber dinghy under Panchnama Ext. no.
162. From the seizure Panchnama it appears that 14
articles were seized along with the rubber dinghy. Of
these, the Yamaha outboard machine that was fitted to the E
rubber dinghy is of special significance for the case.
From the evidence of PW-154, whose evidence was
recorded through audio-video linkage while he was sitting
in the office of the FBI at Los Angeles, USA, and PW-153
who was working as a Special Agent of FBI, the F
prosecution has established that the Yamaha outboard
machine fitted to the inflatable rubber boat, was exported
to Pakistan. (para 346-349] (475-B-C-G; 476-F; 477-B]
2.11. At CST a piece of pink coloured foam was G
found, which inseparably connects the appellant to the
other eight terrorists. The pink foam runs like a thread
through all the episodes and connecting them as integral
pieces of one single, horrible drama. The pink foam
pieces recovered from 'Kuber' and found in the bags that
were picked up from CST, the terrace of the Cam a Hospital H
318 SUPREME COURT REPORTS [2012) 8 S.C.R.
A building and the two bags containing unexploded IEDs
found near Hotel Taj and seized under the Panchnama,
Ext. no. 736, were sent for chemical examination at the
Forensic Science Laboratory. PW-247, the forensic
expert, deposed before the court that all the foam pieces
B tallied with each other in respect of hue (appearance) and
physico-thermal characteristics. He concluded that the
source of all the foam pieces was the same. It is obvious
that the foam was used to provide padding and cushion
to the IEDs and the hand grenades kept in the bags so
c as to prevent them exploding accidentally while the
terrorists were carrying them on their person. [para 350,
352-359) [478-H; 479-A; 481-G-H; 482-A-C]
2.12. The most clinching evidence regarding
conspiracy comes from the recordings of intercepted
D telephone calls between the terrorists and their co-
conspirators and collaborators sitting in a foreign land
that, in light of the over all facts and circumstances of the
case, can only be Pakistan. Unlike the appellant and his
dead companion (D-A1), who were constantly on the
E move, the other terrorists had gone to Hotel Taj, Hotel
Oberoi and Nariman House and were holed up there, even
taking hostages for some time. From their respective
positions they were in regular contact with their
collaborators and were constantly receiving moral
F support, tactical advice and guidance from them by
means of mobile phones. The phone calls made by the
terrorists from Hotel Taj, Nariman House and Hotel Oberoi
came to be noticed and were intercepted by a watchful
member of the Anti Terrorist Squad i.e PW-242. At midnight
G of 26.11.2008, he received information that terrorists were
making regular calls from mobile phone no.9910719424.
PW 242 stated before the court that the first conversation
recorded by him from that mobile number commenced at
01:04 hours on November 27, 2008, and the last call from
H that mobile number was recorded by him at 10:27 hours
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 319
MUJAHID v. STATE OF MAHARASHTRA
of November 27, 2008. He stated that the conversation A
was being heard by him personally and being recorded
on t~e hard disk of the computer simultaneously. He
stated that, from the conversations made from mobile
phone number 9910719424, he could make out that the
callers from that phone were speaking from Hotel Taj. He B
named the said callers. He also named the two persons
on the other end. In course of the night, PW 242 came
across two other mobile phone numbers, 9820704561 and
9819464530. The first of these two was being used by the
terrorists at Hotel Oberoi and the second by those at c
Nariman House. PW 242 intercepted and recorded the
conversations made from those two phone numbers also.
He stated that the interception of these calls by him
commenced at 01 :04 hours on November 27, 2008, and
the last call from one of these numbers concluded at
0
08:52 hours on November 28, 2008. The total recordings
of intercepted phone calls were spread over 12 hours and
33 minutes. The CD recordings of the intercepted phone
conversations were played in court on a laptop.
Significantly, PW 242 told the court that all the calls from
the said three mobile phones were made to a single E
number, 012012531824, which later investigation revealed
to be the number of private Corporation based in New
Jersey, USA, with the domain name Callphonex. [para
360-370] [482-E-F; 483-A-D; 484-D-H; 485-A-E]
F
2.13. PW-242 told the court that the collaborators of
the terrorists appeared to be speaking from telephone
number 012012531824. As the international code would
indicate, the number was based in the US. Clarification
about the number comes from the evidence of PW-156. G
The evidence of this witness was recorded through
audio-video linkage, through the Special Agent of FBI,
PW-153. PW 156 stated before the court that he was the
owner of International Connection Services (ICS) in New
Jersey. Services of PW 156 were 'thus used by a bunch H
320 SUPREME COURT REPORTS [2012] 8 S.C.R.
A of terrorists for the mass killing of innocent people.
According to him, he realized that a false account was
opened with him for unlawful purposes, only after the
massacre in Mumbai. [para 371, 379-381) [485-F-H; 490-
E]
B
2.14. A great many mobile phones were collected
and seized from the various places through which the
terrorists had passed as also from the vehicles used by
the appellant and his dead companion, for moving
through the city, but out of these, 5 mobile phones were
C relevant, 2 of which were recovered from Hotel Taj, 2 from
Nariman House and 1 from Hotel Oberoi. The two phones
that were recovered from Hotel Taj are mentioned in
Exhibit nos. 749 and 760. Both were Nokia 1200. One of
them, a Nokia 1200 phone had the IMEI No.
D 353526025840890. It had a Sim card purchased from PW-
259, a retailer in Delhi, in the name of a fictitious person
('SP') and, on calls being made from this phone, the
number that was displayed on the receiving phone would
be 9910719424, the first number that had come to the
E notice of PW-242. Two Nokia 1200 phones were also
recovered from Nariman House and they found mention
in Exhibit no. 771. One of them, a Nokia 1200 phone had
the IMEI No.353526025842235. It had a Sim card
belonging to 'GH', who was first taken hostage and was
F later killed by the terrorists. It appears that the terrorists
had taken away the mobile phone of 'GH', took out the
Sim card from his mobile and put it in their own mobile
phone. A call made through the Sim card of 'GH' would
display this number on the receiving phone: 9819464530.
G This was one of the two numbers that later came to the
notice of PW-242. The fifth Nokia 1200 was recovered
from Hotel Oberoi vide Ext. no. 790. Its IMEI number was
353526025933620. This mobile phone had a Sim card
issued in the name of one of the victims killed by the
H terrorists at Hotel Oberoi. It appears that her mobile
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 321
MUJAHID v. STATE OF MAHARASHTRA
phone was also taken away by the terrorists at Hotel A
Oberoi, who took out the Sim card from her mobile and
used it to make calls from their own mobile. Any call made
through the said Sim card would display the number
9820704561 on the receiving phone. This was the third
number that had come to the notice of PW-242. [para 383- B
385] [491-A-H; 492-A-C]
2.15. It is thus clear that the terrorists at Hotel Taj
were using a Sim card that was obtained in India under
a fictitious name 'SP' on the basis of fake identity C
documents. The terrorists at Nariman House and Hotel
Oberoi used Sim cards snatched from their respective
victims, which they used to make calls from their own
mobile phones. From the materials brought on record, it
is evident that all the five Nokia 1200 mobile phones were
manufactured in China and were shipped to Pakistan. D
Exhibit no. 606 is a communication dated February 12,
2009, authenticated by ACP, Enforcement Manager I
Americas Nokia Inc. (PW-155) addressed to SA, of F.B.I.
(PW-153). The mobile phones and the SIM cards have
been produced by the prosecution, by means of which E
the terrorists holed up in the places targeted by them
were calling their collaborators across the border and
also the medium through which the exact location of the
collaborators was hidden. [para 386-388] [492-C-E; 494-
F~ F
2.16. The attack on Mumbai, killing and wounding
scores of innocent people was a wicked act, and the
conversations between the terrorists and their
collaborators while the attack was underway appear to G
be its ugliest and most hateful part. Those conversations
unveil warped minds conceiving perverted objectives and
trying to realize those objectives through vicious and
dastardly means. The conversation between the terrorists
and the collaborators evidenced: (1) Exhortation to fight
in the name of Islam against heresy, and the allurement H
322 SUPREME COURT REPORTS [2012] 8 S.C.R.
A of martyrdom; (2) Deception that the terrorists were
Indians and were venting the grievance of the Indian
Muslims; also an attempt to involve Israel; (3) Rejoicing
over the killing of the high police officers; (4) Advising the
terrorists on tactics to deal with the security forces, who
B were called in to neutralize them; (5) Killing of the
hostages. The sum and substance of the transcripts of
talks from Hotel Taj, Hotel Oberoi and Naiman House was
exactly on the lines that the terrorists from Nariman
House talked to India TV as the transcripts of those
c interviews would indicate. The deception, the falsehood
that the terrorists were Indian Muslims coming from
Hyderabad and were connected with some fictitious
organization called Mujaheddin, Hyderabad Deccan, is
one of the most ominous and distressing part of the
o conspiracy. If the appellant had not been caught alive and
the investigating agencies had not been able to unravel
the conspiracy fully and in all its devious ways, the
terrorists might have passed as Indian Muslims which
could easily evoke communal violence that would be
E difficult to contain. The deception was ominous because
it aimed at destabilising Indian society and its
governments. [para 389,390, 392-400] [494-H; 495-A; 496-
B-E; 510-C-F; 511-B]
2.17. In view of the enormous evidence of all possible
F kinds it is clear that the terrorist attack on Mumbai was
in pursuance of a larger conspiracy of which the
appellant was as much part as the nine dead accused and
the other wanted accused. From the evidence on record
it is further clear that the conspiracy did not stop with the
G group of 10 terrorists leaving the Pakistani shore. It
continued developing and growing even while the larger
conspiracy was under execution. In course of execution
of the larger conspiracy by the ten terrorists in Mumbai,
they were being advised and guided to meet the
H contingencies arising at those three different places.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 323
MUJAHID v. STATE OF MAHARASHTRA
Thus, newer conspiracies were being hatched even in A
course of execution of the larger conspiracy and the
conspiracies came to an end only when all the remaining
eight terrorists were killed at the three places where they
were holding up. [para 401] [532-C-F]
B
WAGING WAR AGAINST GOVERNMENT OF INDIA:
3.1. The appellant has also been convicted on the
charge of waging war against the Government of India
and is awarded the death penalty u/s 121 IPC. In addition,
he is separately convicted, u/s 121A IPC, for conspiracy C
to commit offences punishable bys. 121 and s.122 IPC
for collecting arms with intention of waging war against
the Government of India, and given life sentences under
these two Sections. [para 534] [597-D-F]
3.2. The offences concerning "waging war" are in D
Chapter VI of the Penal Code under the heading "OF
OFFENCES AGAINST THE STATE". Section 121 uses the
phrase 'Government of India' and it provides that
whoever, wages war against the Government of India, or
attempts to wage such war, or abets the waging of such E
war, shall be punished with death, or imprisonment for
life and shall also be liable to fine. Section 121A makes a
conspiracy to commit offences punishable by s.121 per
se an offence punishable with imprisonment for life or for
a period that may extend to 10 years. The explanation to F
the Section makes it clear that the offence is complete
even without any act or illegal omission occurring in
pursuance of the conspiracy. This Section uses the
expression 'the Central Government or any State
Government'. Section 122 similarly makes collection of G
arms witl:l intention of "waging war" per se an offence,
regardless of whether or not the arms were put to actual
use. This Section again uses the expression
"Government of India". [para 540-542] [599-F-H; 600-A-F]
3.3. The expression "Government of India" is used H
324 SUPREME COURT REPORTS [2012] 8 S.C.R.
A ins. 121 to imply the Indian State, the juristic embodiment
of the sovereignty of the country that derives its
legitimacy from the collective will and consent of its
people. The use of the phrase "Government of India" to
signify the notion of sovereignty is consistent with the
s 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. Thus, the expression "Government of
India", as appearing in s.121, must be held to mean the
c State or interchangeably the people of the country as the
repository of the sovereignty of India which is manifested
and expressed through the elected Government. [para
545-546) [601-G-H; 602-A-C]
3.4. The expression, "in like manner and by like
D means as a forei{j_n enemy would do" ( as explained in
Navjot Sandhu) is very significant to understand the
nature of the violent acts that would amount to waging
war. In "waging war", the intent of the foreign enemy is
not only to disturb public peace or law and order or to
E kill many people. A foreign enemy strikes at the
sovereignty of the State, and his conspiracy and actions
are motivated by that animus. As explained in Navjot
Sandhu, a "terrorist act" and an act of "waging war
against the Government of India" may have some
F overlapping features, but a terrorist act may not always
be an act of waging war against the Government of India,
and vice-versa. The provisions of Chapter IV of the
Unlawful Activities (Prevention) Act and those of Chapter
VI of the Penal Code, including s.121, basically cover
G different areas. [para 547-548 and 550) [602-G-H; 603-A;
604-F-G]
State (NCT of Delhi) v. Navjot Sandhu 2005 (2) Suppl.
=
SCR 79 (2005) 11 sec 600- relied on
Mohd. Arif v. State of Delhi 2011 (8) SCALE 328-
H referred to.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 325
MUJAHID v. STATE OF MAHARASHTRA
Report of Indian Law Commission with regard to Draft A
Panel Code in 1847 - referred to.
3.5. In the case in hand, the primary and the first
offence that the appellant and his co-conspirators
committed was the offence of waging war against the 8
Government of India. It does not matter that the target
assigned to the appellant and DA-1 was CST Station
(stated to be no more than a public building) where they
killed a large number of people. What matters is that the
attack was aimed at India and Indians. It was by foreign C
nationals. People were killed for no other reason than
they were Indians; in case of foreigners, they were killed
because their killing on Indian soil would embarrass
India. The conspiracy, in furtherance of which the attack
was made, was, inter alia, to hit at India; to hit at its
financial centre; to try to give rise to communal tensions D
and create internal strife and insurgency; to demand that
India should withdraw from Kashmir; and to dictate its
relations with other countries. It was in furtherance of
those objectives that the attack was made, causing the
loss of a large number of people and injury to an even E
greater number of people. Nothing could have been
more "in like manner and by like means as a foreign
enemy would do". [para 551] [604-H; 605-A-D]
3.6. The transcripts of the conversations between the F
terrorists and their collaborators across the border, the
passages of the appellant's confessional statement made
before the magistrate stating about instructions given by
wanted accused no. 1, wanted accused no. 2, and others
in connection with the main purpose of the attack and a G
number of passages from the transcripts of
conversations between the terrorists and their
collaborators across the border would show that the
attack was clearly an enemy action. [para 552] [605-E-G]
3.7. On a careful consideration of the materials on H
326 SUPREME COURT REPORTS [2012] 8 S.C.R.
A record this Court has no hesitation in holding that the
appellant has been rightly held guilty of waging war
against the Government of India and rightly convicted u/
ss 121, 121A and 122 of the Penal Code. [para 553] (605-
H; 606-A]
B
Due Process:
4.1. There is no doubt that the right to silence and the
right to the presence of an attorney granted by the
Miranda decision to an accused as a measure of
C protection against self-incrimination have no application
under the Indian system of law. The US Supreme Court
has clearly acknowledged and pointed out that the
measures to protect the accused against self-
incrimination evolved by it under the Miranda rules were
D already part of the Indian statutory scheme. [para 450 and
453] (557-B-C; 558-C]
Miranda v. Arizona 384 US 436 (1966) - held
inapplicable
E Sarwan Singh v. State of Punjab 1957 SCR 953 =AIR
1957 SC 637 (644) - referred to.
4.2. A bare reference to the statutory provisions
namely, ss.161(2), 162(1), 163 and 164 CrPC read with ss.
F 25,26, 27 and 32 of the Evidence Act would show that
those provisions are designed to afford complete
protection to the accused against self-incrimination. It is
thus clear that the protection to the accused against any
self-incrimination guaranteed by the Constitution is very
G strongly built into the Indian statutory framework and
there is absolutely no reason to draw any help from the
Miranda principles for providing protection against self-
incrimination to the accused. The right against self-
incrimination under Art. 20(3) of the Constitution of India
does not exclude any voluntary statements made in
H exercise of free will and volition. The right against self-
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 327
MUJAHID v. STATE OF MAHARASHTRA
incrimination under Art. 20(3) is fully incorporated in the A
provisions of the CrPC (s.161, 162, 163 and 164) and the
Evidence Act, as manifestations of enforceable due
process, and thus compliance with these statutory
provisions is also equal compliance with the
Constitutional guarantees. [para 454, 455 and 468] [558- 8
D; 559-C-D; 566-D-E]
4.3. It is significant to note that the law of the
Prevention of Terrorism Act, 2002 (POTA) is a major
departure from the common criminal law process in this
country. One can almost call the POTA and a few other C
Acts of its ilk as exceptions to the general rule. In the
severe framework of the POTA, certain constitutional
safeguards are built into s.32, and to some extent in s.52,
of the Act. But the mainstream criminal law procedure in
India, which is governed by the CrPC and the Evidence D
Act, has a fundamentally different and far more liberal
framework, in which the rights of the individual are
protected, in a better and more effective manner, in
different ways. It is, therefore, incorrect to say that what
is said in the context of the POTA should also apply to E
the mainstream criminal law procedure. [para 465] [565-
D-F]
4.4. It is incorrect to say that Art. 22(1) of the
Constitution merely allows an arrested person to consult F
a legal practitioner of his choice and the right to be
defended by a legal practitioner crystallizes only at the
stage of commencement of the trial in terms of s.304
CrPC. Art.22(1) was a part of the Constitution as it came
into force on 26.1.1950. Code of Criminal Procedure
Code, 1973 that substituted the Code of 1898, came into G
force on 1.4.1974. It incorporated the constitutional
provisions regarding the protection of the accused
against self-accusation. The CrPC also had a provision
in s. 304 regarding access to a lawyer. The Constitution
and the body of laws comprise an organic structure H
328 SUPREME COURT REPORTS [2012] 8 S.C.R.
A developing and growing like a living organism. Art. 39-
A came to be inserted in the Constitution by the
Constitution (42nd Amendment Act, 1976) with effect from
3.1.1977 as part of the 'Directive Principles of the State
Policy'. In furtherance to the ideal of Art. 39-A, Parliament
8 enacted the Legal Services Authorities Act, 1987, that
came into force from 9.11.1995. All this development
clearly indicates the direction in which the law relating
to access to lawyers/legal aid has developed and
continues to develop. It is now rather late in the day to
C contend that Art. 22(1) is merely an enabling provision
and that the right to be defended by a legal practitioner
comes into force only on the commencement of trial as
provided u/s 304 of the CrPC. [para 469-470, 471,473 and
475] [566-G-H; 567-8-D; 568-8-C, F; 569-D-E]
D State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284
=AIR 1952 SC 75 - relied on.
4.5. The obligation to provide legal aid to the accused
as soon as he is brought before the magistrate is very
E much part of our criminal law procedure, but for reasons
very different from the Miranda rule, aimed at protecting
the accused against self-incrimination. And it cannot be
accepted that any failure to provide legal aid to the
accused at the beginning, or before his confession is
F recorded u/s 164 CrPC, would inevitably render the trial
illegal. [para 464] [565-8-C]
Directorate of Revenue Intelligence v. Jugal Kishore
Samra 2011 (7) SCR 889 = (2011) 12 SCC 362 Poolpandi
v. Superintendent, Central Excise 1992 (3) SCR 247 = (1992)
G 3 SCC 259; Nandini Satpathy v. P. L. Dani 1978 (3) SCR
608 = (1978) 2 SCC 424; D.K. Basu v State of West Bengal
1996 (10) Suppl. SCR 284 = (1997) 1 SCC 416; Karlar
Singh v. State of Punjab 1994 (2) SCR 375 = (1994) 3 SCC
569 - referred to.
H
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB @ABU 329
MUJAHID v. STATE OF MAHARASHTRA
4.6. It can also not be said that providing a lawyer at A
the stage of trial would provide only incomplete
protection to the accused in case the accused had
already made a confession u/s 164 CrPC. The object of
the criminal law process is to find out the truth and not
to shield the accused from the consequences of his B
wrongdoing. A defense lawyer has to conduct the trial on
the basis of the materials lawfully collected in the course
of investigation. The true test to judge the Constitutional
and legal acceptability of a confession recorded u/s 164
CrPC is whether or not the confession is voluntary. If a c
doubt is created regarding the voluntariness of the
confession, notwithstanding the safeguards stipulated in
s. 164 it has to be trashed; but if a confession is
established as voluntary it must be taken into account,
not only constitutionally and legally but also morally. o
[para 466-467] [565-G-H; 566-A-C]
4.7. The provisions of the CrPC and the Evidence Act
fully incorporate the Constitutional guarantees, and that
the statutory framework for the criminal process in India
affords the fullest protection to personal liberty and E
dignity of an individual, but the Court takes judicial notice,
that there is a great hiatus between what the law
stipulates and the realities on the ground in the
enforcement of the law. The abuses of the provisions of
the CrPC are perhaps the most subversive of the right to F
life and personal liberty, the most precious right under the
Constitution, and the human rights of an individual.
Access to a lawyer is, therefore, imperative to ensure
compliance with statutory provisions, which are of high
standards in themselves and which, if duly complied G
with, will leave no room for any violation of Constitutional
provisions or human rights abuses. [para 476] [569-F-H;
570-A-B]
4.8. The right to access to legal aid, to consult and
to be defended by a legal practitioner, arises when a H
330 SUPREME COURT REPORTS (2012] 8 S.C.R.
A person arrested in connection with a cognizable offence
is first produced before a magistrate. Accordingly, it is the
duty and obligation of the magistrate before whom a
person accused of committing a cognizable offence is
first produced to make him fully aware that it is his right
B to consult and be defended by a legal practitioner and,
in case he has no means to engage a lawyer of his
choice, that one would be provided to him from legal aid
at the State expense. The right flows from Arts. 21 and
22(1) of the Constitution and needs to be strictly enforced.
c This Court accordingly, directs all the magistrates in the
country to faithfully discharge the said duty and
obligation and further make it clear that any failure to fully
discharge the duty would amount to dereliction in duty
and would make the concerned magistrate liable to
departmental proceedings. [para 484] [573-E-H]
0
Hussainara Khatoon (IV) v. Home Secretary, State of
=
Bihar 1979 (3) SCR 532 (1980) 1 sec 98; Khatri (II) v.
=
State of Bihar 1981 (2) SCR 408 (1981) 1 SCC 627- relied
on.
E
4.9. However, it needs to be clarified that the right to
consult and be defended by a legal practitioner is not to
be construed as sanctioning or permitting the presence
of a lawyer during police interrogation. According to our
F system of law, the role of a lawyer is mainly focused on
court proceedings. The accused would need a lawyer to
resist remand to police or judicial custody and for
granting of bail; to clearly explain to him the legal
consequences in case he intended to make a
confessional statement in terms of s.164 CrPC; to
G represent him when the court examines the chargesheet
submitted by the police and decides upon the future
course of proceedings and at the stage of the framing of
charges; and beyond that, of course, for the trial. It is thus
to be seen that the right to access to a lawyer in this
H country is not based on the Miranda principles, as
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 331
MUJAHID v. STATE OF MAHARASHTRA
protection against self-incrimination, for which there are A
more than adequate safeguards in Indian laws. The right
to access to a lawyer is for very Indian reasons; it flows
from the provisions of the Constitution and the statutes,
and is only intended to ensure that those provisions are
faithfully adhered to in practice. [para 485] [574-A-D] B
4.10. Every accused unrepresented by a lawyer has
to be provided a lawyer at the commencement of the trial,
engaged to represent him during the entire course of the
trial. Even if the accused does not ask for a lawyer or he
remains silent, it is the Constitutional duty of the court to C
provide him with a lawyer before commencing the trial.
Unless the accused voluntarily makes an informed
decision and tells the court, in clear and unambiguous
words, that he does not want the assistance of any lawyer
and would rather defend himself personally, the D
obligation to provide him with a lawyer at the
commencement of the trial is absolute, and failure to do
so would vitiate the trial and the resultant conviction and
sentence, if any, given to the accused. [para 487] [574-F-
H; 575-A] E
Suk Das v. UT of Arunachal Pradesh 1986 (1) SCR 590
=(1986) 2 sec 401 - relied on.
4.11. But the failure to provide a lawyer to the
accused at the pre-trial stage may not have the same F
consequence of vitiating the trial. It may hav11 other
consequences like making the delinquent magistrate
liable to disciplinary proceedings, or giving the accused
a right to claim compensation against the State for failing
to provide him legal aid. But it would not vitiate the trial G
unless it is shown that failure to provide legal assistance
at the pre-trial stage had resulted in some material
prejudice to the accused in the course of the trial. That
would have to be judged on the facts of each case. [para
488] [575-B-C] H
332 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 4.12. In the instant case, the appellant was arrested
on November 27, 2008, at 10.45PM. At the time of his
arrest the appellant stated that he was a Pakistani
national and he did not have any friend or relative in India.
PW-48, accordingly, made a note in "the Record of
B Formalities to be Followed at the time of Arrest" that
intimation of his arrest could not be given to anyone h::i
India but information about his relatives was being
procured for giving intimation to them (in Pakistan). He
also noted in the Arrest Panchnama that the appellant
c belonged to an economically weaker section. The note
in "the Record of Formalities" states that the appellant
refused the offer of legal aid made to him. From the
records, it is evident that the appellant was offered a
lawyer at the time of his arrest by the police officer making
the arrest. He declined the offer. He then wrote a letter to
0
the Pakistani High Commission asking to be provided
with a lawyer. He made a similar request in a second letter
that was handed over to the Additional Chief Metropolitan
Magistrate. In the second letter, there is an assertion that
he did not want to be represented by an Indian lawyer. It
E is thus clear that, in his mind, the appellant was still at
war with India, and he had no use for a lawyer from the
enemy country. Moreover, the negative assertion that he
did not want an Indian lawyer itself implies that he had
received offers of legal counsel. But those offers were not
F acceptable to him. The appellant's refusal to accept the
services of an Indian lawyer and his demand for a lawyer
from his country cannot be anything but his own
independent decision. He was acting quite independently
and, in his mind, he was a "patriotic" Pakistani at war with
G this country. [para 489, 494 and 495] [575-D-G; 579-B-F]
4.13. On March 23, 2009, the appellant finally asked
for a lawyer, apparently convinced by then that no help
would come from Pakistan or anywhere else. He was
H then immediately provided with a set of two lawyers. In
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 333
MUJAHID v. STATE OF MAHARASHTRA
the facts of the case, this Court is firmly of the view that A
there has been no violation of any of the rights of the
appellant under the Indian Constitution. He was offered
the services of a lawyer at the time of his arrest and at all
relevant stages in the proceedings. The absence of a
lawyer at the pre-trial stage was not only as per the B
wishes of the appellant himself, but this absence also did
not cause him any prejudice in the trial. [para 496-497]
[579-F-H; 580-A]
Zahira Habibullah Sheikh (5) v. State of Gujarat 2006 (2) C
SCR 1081 = (2006) 3 sec 374 T. Nagappa v. Y.R.
=
Muralidhar 2008 (6) SCR 959 (2008) 5 SCC 63, Noor Aga
=
v. State of Punjab 2008 (10) SCR 379 (2008) 16 sec 417,
NHRC v. State of Gujarat (2008) 16 SCC 497; Jayendra
Vishnu Thakur v. State of Maharashtra 2009 (8) SCR 591 =
(2009) 7 SCC 104; and G. Someshwar Rao v. Samineni 0
Nageshwar Rao 2009 (11) SCR 676 = (2009) 14 SCC 677;
Behram Khursheed v. State of Bombay (1955) 1. SCR 613
and Olga Tellis v. Bombay Municipal Corp. 1985 (2) Suppl.
SCR 51 = (1985) 3 SCC 545; Se/vi and others v. State of
=
Karnataka 2010 (5) SCR 381 (2010) 7 SCC 263; State of E
Bombay v. Kathi Kalu Oghad [1962] 3 SCR 10 - cited.
Davis v. United States 512 US 452 (1993); Berghuis,
Warden v. Thompkins 130 S.Ct. 2250 (2010); Dietrich v. R.
[1992] 177 CLR 292; R. v. Sinclair [2010] 2 S.C.R. (Canada) F
31 O; Sa/duz v. Turkey (2009) 49 EHRR 19; Ambrose v.
Harris (Procurator Fiscal, Oban) (Scotland) [2011] UKSC 43
and McGowan, (Procurator Fiscal, Edinburgh) v. B (Scotland)
[2011] UKSC 54- cited.
Time allowed to the lawyer for preparation: G
4.14. The counsel was appointed on 16.4.2009 to
represent the appellant and on his application dated
21.4.2009, the court allowed him 8 days' time, which
cannot be said to be unreasonable. From the chart H
334 SUPREME COURT REPORTS [2012) 8 S.C.R.
A showing not only the day-to-day developments in the trial
but also giving details of the hours of the court
proceedings on each day, it is evident that the counsel
for the appellant was allowed ample time for preparation.
It would be pertinent to note that the counsel for the
B appellant before the trial court never complained about
not being given sufficient time. It is also evident that, in
the course of the trial, when the counsel for he appellant
requested for adjournment for cross-examination of some
important witnesses, the court accommodated him on
c most occasions. Therefore, it cannot be said that the
defence was not allowed sufficient time for preparation
of the case and that denial of sufficient time vitiated the
trial. [para 500-503] [581-D-G; 582-A-C]
Ranchod Mathur Wasawa v. State of Gujarat 1974 ( 2)
D SCR 72; and Owais Alam v. State of U.P. Criminal Appeal
No.284 of 1968, decided on December 17, 1968 - cited
CONFESSION:
E 5.1. It is pertinent to note that though the appellant
was produced before the Additional Chief Metropolitan
Magistrate on 17.2.2009, the Magistrate after satisfying
herself that the appellant was willing to make the
confessional statement voluntarily and not under any
pressure, coercion or allurement by police or anyone
F else, gave him 24 hours time to reflect further on the matte
and remanded him to judicial custody. When the
appellant was brought back to the Magistrate on
18.2.2009, she had another long interaction with him and
cautioned him of the consequences of his statement by
G saying that he should make the statement only if he
wished to do so. The appellant said that he was aware
of the consequences and he wanted to make the
confession. The Magistrate again gave him a period of
48 hours for further reflection and to reconsider the matter
H with a composed mind. When the appellant was
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 335
MUJAHID v. STATE OF MAHARASHTRA
produced before the Magistrate on 20.2.2012, she again A
followed the procedure and after satisfying herself that
the appellant was willing to make the statement on his
volition proceeded to record his statement u/s 164 CrPC.
The statement was completed on 21.2.2009 in accordance
with the procedure prescribed. [para 10-15] [353-D; 354- B
A-G; 355-A-G]
5.2. From the text of appellant's confession, it is
impossible to hold that the confession is not voluntary
and is liable to be thrown out for that reason. However,
the censure regarding the mentions of the other two C
accused in the confessional statement is quite justified,
and the references to accused 2 and 3 at three places in
the confessional statement is highly unsatisfactory. The
reference to their destination being Malabar Hills when
DA-1 and the appellant were caught at Vinoli Chowpaty D
is equally vague, and that also is perhaps mentioned to
establish a connection with the alleged maps prepared
by accused 2 and 3. But so far as the rest of the very
detailed confession is concerned, there is absolutely no
reason to doubt that it was made voluntarily and without E
any influence or duress from any external agency. [para
516] [587-G-H; 588-A-C]
5.3. The detailed references by the appellant to his
parents and a larger number of his relatives, their F
addresses and the mobile phone numbers of some of
them, and his references to the different places in
Pakistan, appear to be directed against the Pakistani
authorities. In the statement that he made before the
magistrate on February 20, 2009, the appellant was G
making it clear that he was a Pakistani by birth and by
citizenship, and was making assertions that no one could
deny. [para 517] [588-0-G]
5.4. As to his knowing the names of many people in
Lashkar-e-Toiba, their respective positions in the hierarchy H
336 SUPREME COURT REPORTS [2012] 8 S.C.R.
A and their roles in the organization, again there is nothing
unusual about it. It is to be noted that the appellant was
not a mercenary hired for the operation. He was a highly
committed and devoted member of the organization and,
therefore, there is nothing strange or wrong in his
B coming to know many people in the organization during
the course of his training. Further, it is to be kept in mind
that his being caught alive was not part of the plan of the
handlers. Further, to say that the confessional statement
was intended to confirm the findings of the police
c investigation is actually to blame the police for an
excellent investigation. If the confessional statement
confirms the findings of the investigation that should go
to the credit of the investigation, and it cannot be said
that the confessional statement was recorded to confirm
the police investigation. [para 519] [589-E-G; 590-A-C]
0
5.5. Finalli, the production of the accused before the
magistrate on February 17, 2009, even though he had
expressed his willingness to make the confessional
statement in early December, 2008, is equally legitimate
E and understandable. The police could not afford to lose
custody of the appellant at that stage, as it was essential
in connection with their investigation, which was still
incomplete to a very large extent at that time. Once the
appellant was produced for recording of the confession
F u/s 164 CrPC, the law ordained the magistrate to send him
to judicial custody and not back on police remand. In
those circumstances, the police was fully justified in
producing the appellant for confession only after
completing its own investigation, when it no. longer
G needed the appellant in its custody. [para 520] [590-D-F]
5.6. The proof of the voluntariness and the
truthfulness of the confessional statement comes directly
from the appellant's own statements. On February 18,
2009, when the appellant was brought before the
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 337
MUJAHID v. STATE OF MAHARASHTRA
magistrate, she asked him when he first felt like making A
a confession, to which he had replied that the thought of
making the confession came to him when he was
arrested by the police; he then added that he had
absolutely no regret for whatever he had done. At another
stage in the proceedings, the magistrate once again B
asked why he wished to make the confessional
statement, to which he replied that he wanted to set an
.example for others to follow and to become Fidayeen like
him. It is thus clear that he was not making a
confessional statement from any position of weakness or c
resignation, or out of remorse. He was a hero in his own
eyes, and in those circumstances it is not possible to
hold that the confession was not voluntary. It may further
be noted that he did not say that the statements made
therein were untrue in any manner. [para 521] [590-G-H; 0
591-A-C]
5.7. It needs to be noted that, in the course of the trial,
after 58 prosecution witnesses had been examined and
the next witness, a Police Sub-Inspector was about to
enter the witness box on July 20, 2009, the appellant, after E
consulting his counsel, said that he was accepting his
guilt. The Special Public Prosecutor objected to
entertaining any plea of guilty at that stage, on the
grounds that the stage of s. 229 CrPC was already over.
The court, however, rightly overruling the objection, F
allowed the appellant to make a statement, which was
recorded after giving him due caution. Though
structurally and sequentially the statement made in the
court is completely different from the confessional
statement made before the magistrate, it has broadly the G
same contents. It is true that in the confessional
statement he presents himself as the central figure in
almost all the episodes while in the statement before the
court he appears to be perceptibly retreating to the
background. The lead role and the overt acts are H
338 SUPREME COURT REPORTS [2012] 8 S.C.R.
A attributed to others rather than to himself. Significantly,
however, as regards his joining of Lashkar-e-Toiba, the
formation of the conspiracy, the preparation and training
for the attack on Mumbai, as well as the identities of the
men in the organisation, there is hardly any omission in
B the appellant's statement made in the court. Further, in
the statement to the court, though there is mention of the
hand-prepared maps, there is no mention of their source.
There is no reference to accused nos. 2 and 3 as the
maker and the deliverer (respectively) of those maps.
c [para 522-524] [591-D-H; 592-C-G]
5.8. The trial court, of course, did not accept the
statement that was sought to be made as the plea of guilty
because it was a very diluted and partial admission of
only some of the charges. It, accordingly, proceeded with
D the trial. While dealing with the statements made by the
appellant, it may also be noted that, finally, in the
statement recorded u/s 313 of the CrPC, he denied the
entire prosecution case and also retracted his two
previous statements. It is evident that by the time the
E statement u/s 313 was recorded towards the end of
December 2009, the Jihadi sheen had worn off and the
desire to live was exerting its pull on the appellant. [para
527 -528] [593-D-F]
F 5.9. Therefore, the appellant's confessional statement
made before the magistrate cannot be eschewed
completely from consideration. This Court is clearly of
the view that the confessional statement recorded by the
magistrate is voluntary and truthful, except insofar as it
G relates to the other two accused, namely accused 2 and
3. There was no violation of any Constitutional or legal
right of the appellant in the recording of the confession.
Therefore, there is no reason for not taking the
confession into consideration to judge the charges
against the appellant. [para 529 and 532] [594-A-B; 595-
H B]
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 339
MUJAHID v. STATE OF MAHARASHTRA
SENTENCE: A
6.1. There was no lowering of the standard of
fairness and reasonableness in the appellant's trial and
it, therefore, follows that no mitigation in punishment can
be asked for on that score. [para 558] [607-D-E]
B
6.2. As to the charge of waging war against the
Government of India and the appellant being personally
responsible for the killing of 7 people, including the
navigator of Kuber, those are fully in accord with the
findings of this Court, arrived at independently and, C
therefore, the High Court was quite justified in taking
those facts into account for determining the punishment
for the appellant. [para 560] [608-A-B]
6.3. The actions of the appellant and the offences D
committed by him must be judged as expressions of his
free will, for which he alone is responsible and must face
the punishment. It cannot be said 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 E
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. Thus, there is no question of F
his being brain-washed or acting under remote control
or acting like an automaton. During the hearing of the
instant appeal, this Court has 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 G
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.
[para 562-563] [609-E-H; 610-A-B] H
340 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 6.4. The saddest and the most disturbing part of the
case is that the appellant never showed any remorse for
the terrible things he did. The judge trying him had
occasion to watch him closely and has repeatedly
observed about the lack of any remorse on the part of
B the appellant. The High Court, too, has noticed that the
appellant never showed any remorse for the large-scale
murders committed by him. This forecloses the
possibility of any reform or rehabilitation of the appellant.
The alternative option of life sentence is thus
c unquestionably excluded in the case of the appellant and
death remains the only punishment that can be given to
him. [para 564] [610-D-G; 611-A-B]
6.5. In Machhi Singh this Court observed that though
the "community" revered and protected life because "the
D very humanistic edifice is constructed on the foundation
of reverence for life principle" it may yet withdraw the
protection and demand death penalty. The Court
enumerated the kinds of cases in which protection to life
may be withdrawn and there may be demand for death
E penalty. The instant case would not only satisfy all the
conditions laid down in Machhi Singh for imposition of
death sentence but also present several other features
that could not have been conceived of by the Court in
Machhi Singh. Every single reason that this Court might
F have assigned for confirming a death sentence in the
past is to be found in this case in a more magnified way.
[para 567 and 569] [612-B; 614-D-E]
Machhi Singh v. State of Punjab 1983 ( 3) SCR 413 =
G (1983) 3 SCC 470; and Bachan Singh v. State of Punjab
1980) 2 sec 684 - relied on
6.6. In the instant case, the following features are
worth noticing:
H (i) This case has the element of conspiracy as no
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 341
MUJAHID v. STATE OF MAHARASHTRA
other case. The appellant was part of a conspiracy A
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 B
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 c
communal strife and insurgency; all with the intent
to weaken the country from within. [para 570) [614-
F-G]
(ii) The case presents the element of previous
planning and preparation as no other case. For D
execution of the conspiracy, the appellant and the 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 E
landing site at Mumbai, the different targets at
Mumbai were all predetermined. The nature of the
attack by the differeytt teams of terrorists was
planned and everyone ,was given clear instructions
as to what they 'were supposed to do at their F
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 G
advanced computer technology and procured
through deception, was already arranged and put in
place before the attack was launched. [para 571]
[614-H; 615-A-D]
H
342 SUPREME COURT REPORTS [2012] 8 S.C.R.
A (iii) 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. [para
B 572] (614-D-E]
(iv) This case has shocked the collective conscience
of the Indian people as few other cases have. [para
573] [615-E]
C (v) The number of persons killed and injured is not
only staggeringly high but also as in no other or in
extremely few cases. Out of 166 people killed and
238 injured, at least 7 were killed by the appellant
personally and 72 were killed by him in furtherance
D of the common intention he shared with D-A-1 and
the rest were victims of conspiracy to which he was
a party along with 9 dead accused and 35 other
accused who remained to be apprehended. [para
57 4] [615-F-G; 616-A]
E
(vi) The number of policemen and members of
security forces killed and injured in course of their
duty by the appellant and his accomplice DA-1 and
the eight (8) other co-conspirators would hardly find
a match in any other cases. [para 575] [616-B]
F
(vii) The offences committed by the appellant show
a degree of cruelty, brutality and depravity as in very
few other cases. [para 577] [616-E]
G (viii) The appellant, as also the other 9 terrorists, his
co-conspirators, used highly lethal weapons such as
AK-47 rifles, 9 mm pistols, and grenades and ROX
bombs. [para 578] (616-F]
(ix) The loss of property caused by the attack being
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 343
MUJAHID v. STATE OF MAHARASHTRA
over Rs.150 er. is colossal, again of a scale as in no A
other case. [para 576] [616-E]
(x) The appellant never showed any repentance or
remorse, which is the first sign of any possibility of
reform and rehabilitation. [para 580] [617-A]
B
(xi) 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 C
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 D
also attract the rarest of rare punishment. [para 581]
[617-A-B]
6.7. The only mitigating factor is the appellant's young
age, but that is completely offset by the absence of any E
remorse on his part, and the resultant finding that in his
case there is no possibility of any reformation or
rehal:>ilitation. [para 582] [617-D]
Mohd. Mannan V. State of Bihar 2011 (5) SCR 518 =
(2011) 5 SCC 317; Swamy Shraddananda (2) v. State of F
Karnataka 2008 (11) SCR 93 = (2008) 13 SCC 767; (iii)
Santosh Kumar Satishbhushan Bariyar v. State of
=
Maharashtra 2009 (9) SCR 90 (2009) 6 SCC 498; Mohd.
Farooq Abdul Gafur v. State of Maharashtra (2009) 11
SCALE 327; Rameshbhai Chandubhai Rathod v. State of G
Gujarat (2009) 5 SCC 740; (vi) Rameshbhai Chandubhai
Rathod (2) v. State of Gujarat 2011 (1) SCR 829 = (2011) 2
SCC 764; (vii) Mui/a and another v. State of Uttar Pradesh
2010 (2) scR 633 = (2010) 3 sec 508; (viii) Dilip
'Premnarayan Tiwari v. State of Maharashtra 2009 (16) SCR H
344 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 322 =(2010) 1 SCC 775; (ix) RS Budhwar v U0/ 1996 (2)
Suppl. SCR 528 = (1996) 9 SCC 502; and (x) State of
Maharashtra v. Bharat Chaganlal Raghani 2001 (3) SCR 840
= (2001) 9 sec 1 - distinguished
B 6.8. 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". In the
facts of the instant case, the death penalty is the only
sentence that can be given to the appellant. The
C convictions and sentences of the appellant passed by
the trial court and confirmed by the High Court are
affirmed. [para 585-586] (618-D-F-G]
Crl. A.No. 1961 of 2011
D
7. When the attack on Mumbai took place on
26.11.2008, A-2 and A-3 were in custody of U.P. Police in
connection with a terrorist attack on RPF camp at
Rampur. The trial court and the High Court have
E considered the evidences relating to A-2 and A-3 in far
greater detail. Both the courts have analysed the
prosecution evidence in regard to the two accused at
great length and have given very good reasons to hold
the prosecution evidence unworthy of reliance to level
such grave charges against the two accused. This Court
F is in full agreement with the reasons assigned by the trial
court and the High Court and both the courts have rightly
acquitted the two accused of all the charges. The view
taken by the trial court and the High Court is not only
correct but on the facts of the case, that is the only
G possible view. [para 593 and 596] [619-H; 620-A; 620-E-
G]
MEDIA
8.1. From the transcripts it is evident that the
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 345
MUJAHID v. STATE OF MAHARASHTRA
collaborators were watching practically every movement A
of the security forces that were trying to tackle the
terrorists under relentless gun fire and throwing of
grenades from their end. The Court can also take judicial
notice of the fact that the terrorists attacks at all the
places, in the goriest details, were shown live on the B
Indian TV from beginning to end almost non-stop. All the
channels were competing with each other in showing the
latest developments on a minute to minute basis,
including the positions and the movements of the security
forces engaged in flushing out the terrorists. The c
reckless coverage of the terrorist attack by the channels
thus gave rise to a situation where on the one hand the
terrorists were completely hidden from the security forces
and they had no means to know their exact position or
even the kind of firearms and explosives they possessed 0
and on the other hand the positions of the security
forces, their weapons and all their operational
movements were being watched by the collaborators
across the border on TV screens and being
communicated to the terrorists.In the instant appeals, it E
is not possible to find out whether the security forces
actually suffered any casualty or injuries on account of
the way their operations were being displayed on the TV
screen. But it is beyond doubt that the way their
operations were freely shown made the task of the
security forces not only exceedingly difficult but also F
dangerous and risky. [para 402-404) [534-A-F]
8.2. Any attempt to justify the conduct of the TV
channels by. citing the right to freedom of speech and
expression would be totally wrong and unacceptable in G
such a situation. The freedom of expression, like all other
freedoms under Art.19, is subject to reasonable
restrictions. An action tending to violate another person's
right to life guaranteed under Art. 21 or putting the national
security in jeopardy can never be justified by taking the H
346 SUPREME COURT REPORTS [2012) 8 S.C.R.
A plea of freedom of speech and expression. The shots and
visuals that were shown live by the TV channels could
have also been shown after all the terrorists were
neutralized and the security operations were over. [para
405-406] [534-G-H; 535-A]
B
8.3. It must, therefore, be held that by covering live
the terrorists attack on Mumbai in the way it was done,
the Indian TV channels were not serving any national
interest or social cause. On the contrary they were acting
C in their own commercial interests putting the national
security in jeopardy. [para 406] [535-B]
CRIMINAL TRIAL:
9. In the instant case, the trial Judge is a true flag
0 bearer of the rule of law in this country. The manner in
which he conducted the trial proceedings and maintained
the record is exemplary. This Court seriously
recommends that the trial court records of this case be
included in the curriculum of the National Judicial
E Authority and the Judicial Authorities of the different
States as a model for criminal trial proceedings. [para
603] [622-F-G]
Per Chandramauli Kr. Prasad, J. (Concurring)
F Hardly one come across a case, where court does
not resort to "certain probability" as working substitute
for proof beyond all reasonable doubt. However, the
instant case is an exception. From the evidence, oral and
documentary, it can be said that "absolute certainty"
G may not necessarily be a myth or fake in all cases and
can be a reality. Certainly, 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
H place at various places in the city of Mumbai, were
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 34 7
MUJAHID v. STATE OF MAHARASHTRA
executed by the appellant in furtherance thereof. [para 4- A
5] [650-0-F]
E.L. Dorado theory of "absolute proof" - referred to.
Case Law Reference:
B
2006 (2) SCR 1081 cited para 409
(2008 (6) SCR 959 cited para 409
2008 (10) SCR 379 cited para 409
2008 (16) sec 497 cited para 409 c
2009 (8) SCR 591 cited para 409
2009 (11) SCR 676 cited para 40
1985 (2) Suppl. SCR 51 cited para 409 D
1978 (3) SCR 608 referred to para 412
384 us 436 (1966) held inapplicable para 412
1981 (2) SCR 408 relied on para 413
E
2005 (2) Suppl. SCR 79 relied on para 414
1994 (2) SCR 375 referred to para 414
1996 (10) Suppl. SCR 284 referred to para 415
F
2010 (5) SCR 381 cited para 415
[1962] 3 SCR 10 cited para 432
512 us 452 (1993) cited para 439
130 S.Ct. 2250 (2010) cited para 440 G
[1992] 177 CLR 292 cited para 441
[2010] 2 S.C.R.(Canada) 310 cited para 441
(2009) 49 EHRR 19 cited para 441 H
348 SUPREME COURT REPORTS [2012] 8 S.C.R.
A (2011) UKSC 43 cited para 441
[2011) UKSC 54 cited para 441
1992 (3) SCR 247 referred to para 443
2011 (7) SCR 889 referred to para 443
B
1957 SCR 953 referred to para 452
1952 SCR 284 relied on para 471
1979 (3) SCR 532 relied on para 477
c
1986 (1) SCR 590 relied on para 487
Criminal Appeal No.284 of 1968
decided on December 17, 1968 cited para 499
D (1969) 1 SCR 32 cited para 499
1974 (2) SCR 72 cited para 499
1999 (3) SCR 1 distinguished para 533
E 2011 (8) SCALE 328 referred to para 539
1980) 2 sec 684 relied on para 565
1983 (3) SCR 413 relied on para 566
2011 (5) SCR 518 distinguished para 583
F
2008 (11) SCR 93 distinguished para 583
2009 (9) SCR 90 distinguished para 583
(2009) 11 SCALE 327 distinguished para 583
G
(2009) 5 sec 740 distinguished para 583
2011 (1) SCR 829 distinguished para 583
2010 (2) SCR 633 distinguished para 583
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 349
MUJAHID v. STATE OF MAHARASHTRA
2010 (2) SCR 633 distinguished para 583 A
2009 (16) SCR 322 distinguished para 583
1996 (2) Suppl. SCR 528 distinguished para 583
2001 (3) SCR 840 distinguished para 583 B
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1899-1900 of 2011.
From the Judgment & Order dated 21.02.2011 of the High
Court of Judicature at Bombay in Confirmation Case No. 2 of C
2010 along with Criminal Appeal No. 738 of 2_01 O along with
Criminal Appeal No. 606 of 2010 in Session Case No. 175 of
2009.
WITH
D
Criminal Appeal No. 1961 of 2011.
T.P. (Crl.) No. 30 of 2012.
Raju Ramachandran, Gopal Subramanium, Gaurav E
Agrawal, Rishad A. Chowdhury, Syed Burhanur Rahman,
Shankar Narayanan, Syed Mehdi Imam, Ujjawal D. Nikam,
Sanjay V. Kharde, Sachin J. Patil, Preshit Surshe, Shankar
Chillarge, Devansh Mohata, Anand Varma, Yakshay Chheda,
Lakshmeesh Karnath, Nishi! Agrawal, Asha G. Nair, M.S. Khan,
B.S. Billowria (for D.K. Garg), Gaurav Bhatia for the appearing F
parties.
The Judgment of the Court was delivered by
AFTAB ALAM, J. 1. The appellant, Mohammed Ajmal G
Mohammad Amir Kasab @ Abu Mujahid (hereinafter referred
to as. 'the appellant' or as 'Kasab'), who is a Pakistani national,
has earned for himself five death penalties and an equal
number of life terms in prison for committing multiple crimes of
a horrendous kind in this country. Some of the major charges H
350 SUPREME COURT REPORTS [2012] 8 S.C.R.
A against him were: conspiracy to wage war against the
Government of India; collecting arms with the intention of waging
war against the Government of India; waging and abetting the
waging of war against the Government of India; commission of
terrorist acts; criminal conspiracy to commit murder; criminal
B conspiracy, common intention and abetment to commit murder;
committing murder of a number of persons; attempt to murder
with common intention; criminal conspiracy and abetment;
abduction for murder; robbery/dacoity with an attempt to cause
death or grievous hurt; and causing explosions punishable
c under the Explosive Substance Act, 1908. He was found guilty
of all these charges besides many others and was awarded
the death sentence on five counts, life-sentence on five other
counts, as well as a number of relatively lighter sentences of
imprisonment for the other offences.
D 2. Apart from the appellant, two other accused, namely
Fahim Ansari and Sabauddin Ahamed, both Indian nationals,
were also arraigned before the trial court and indicted on the
same charges as the appellant.
E 3. At the end of the trial, however, the appellant was
convicted and sentenced to death as noted above (vide
judgment and order dated May 3/6, 2010 passed by the Addi.
Sessions Judge, Greater Mumbai in Sessions Case No. 175
of 2009). The other two accused were acquitted of all charges.
F The trial court gave them the benefit of the doubt as regards
the charges of conspiracy and abetment of other offences by
conspiracy, and further held that the prosecution completely
failed to establish those other charges that were made directly
against them.
G
4. The judgment by the trial ~ourt gave rise to a reference
to the Bombay High Court under Section 366 of the Code of
Criminal Procedure (CrPC), registered as Confirmation Case
No. 2 of 2010. In addition to the reference, two appeals also
H
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 351
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
came to the High Court from the judgment and order passed A
by the trial court, one by the appellant against his conviction and
sentences (Criminal Appeal No. 738 of 2010) and the other by
the State of Maharashtra against the acquittal of the other two
accused (Criminal Appeal No. 606 of 2010). The High Court,
by its judgment and order dated February 21, 2011, confirmed B
the death sentences given to the appellant by the trial court and
dismissed both the appeals. The High Court upheld the
judgment and order passed by the trial court in all material
aspects: it sustained the appellant's conviction and confirmed
the punishments given him by the trial court, but at the same c
time it did not interfere with the acquittal of the other two
accused.
5. From the judgment of the High Court two appeals have
come to this Court: one is a jail appeal by Kasab and the other
is by the State of Maharashtra. The State's appeal seeks to D
challenge the acquittal of the other two accused by the trial court
and affirmed by the High Court. The other two accused are
impleaded in the State's appeal as Respondents No. 1 and 2.
Kasab was unrepresented in the appeal preferred by him from
jail and this Court, therefore, appointed Mr. Raju E
Ramachandran, senior advocate, assisted by Mr. Gaurav
Agrawal, to represent him. He was thus able to get legal
assistance of a standard and quality that is not available to a
majority of Indian nationals approaching this Court against their
conviction and sentence. F
6. We may also state here that since it is a case of death
sentence, we intend to examine the materials on record first
hand, in accordance with the time-honoured practice of this
Court, and come to our own conclusions on all issues of facts G
and law, unbound by the findings of the trial court and the High
Court.
7. According to the prosecution, a sinister conspiracy was
hatched in Pakistan and in furtherance of that conspiracy a
savage attack was unleashed on Mumbai by a team of ten H
352 SUPREME COURT REPORTS [2012] 8 S.C.R.
A terrorists, including Kasab, who landed on the city's shores via
the Arabian Sea. The attack began on November 26, 2008 at
about 9.15 PM and it ended when the last of the attackers, who
was holed up in Hotel Taj Mahal Palace, was killed by Indian
security forces at about 9.00 AM on November 29. The brutal
B assault left Mumbai scarred and traumatized and the entire
country shocked. The terrorists killed one hundred and sixty-six
(166) people and injured, often grievously, two hundred and
thirty-eight (238) people 1. The loss to property resulting from
the terrorist attack was assessed at over Rupees one hundred
c and fifty crores (Rs. 150 Cr.). 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, seventy-two (72) were killed by him
0
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 court2 •
E
8. The case of the prosecution is based, of course, on
investigations by the police, but a good deal of it also comes
from the confessional statement of the appellant recorded under
Section 164 of the CrPC. The confession of the appellant may
F be broadly divided into two parts, one relating to the conspiracy,
planning and preparation for the attack, and the other relating
to the actual attack on Mumbai, in execution of the conspiracy
of which the appellant along with his "buddia" 3 , the accomplice
G 1. A complete list of people killed and injured is appended at the bottom of
the Judgment as Schedule No.1, forming part of the Judgment.
2. A complete list of the accused in three categories, i.e., (i) the three who
faced the trial, (ii) the nine who died in course of commission of the crimes
and (iii) the thirty five (35) who remain to be apprehended is appended at
the bottom of this judg111ent as Schedule No.II, forming part of the judgment.
H 3. A term used by the appellant; vernacular adaptation of buddy.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 353
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Abu Ismail, was a part. So far as the attack on Mumbai is A
concerned, every statement made by the appellant is
corroborated over and over again by objective findings and
evidences gathered by the prosecution. But the conspiracy and
the preparation for the attack took place in Pakistan and,
therefore, it was impossible for any agency of this country to B
make investigations in regard to that part of the case.
Nevertheless, the investigators have been able to gather
extensive material to corroborate even that part of the appellant's
confession.
9. It would thus be convenient to present the case of the
c
prosecution by beginning with the appellant's confessional
statement.
THE RECORDING OF THE CONFESSIONAL STATEMENT:
D
10. The appellant was brought before the Chief
Metropolitan Magistrate, Mumbai, on February 17, 2009, to
make his confessional statement. The Chief Metropolitan
Magistrate referred him to Mrs. Sawant-Wagule, Addi. Chief
Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, before E
whom he was presented for recording his confessional
statement in CR No. 198/08 of Detection of Crime Branch,
Mumbai (one of the twelve (12) cases registered in connection
with the offences committed by the invading group of terrorists)
at 10.45 AM on the same day.
F
11. Mrs. Sawant Wagule proceeded to take his statement
very slowly and with great circumspection. First of all, she had
the appellant completely insulated from the police. She explained
to him that from that point he was in her custody and not in the
custody of the police. She asked him whether he was ill-treated G
or abused by the police in any manner and why he wanted to
make the confessional statement. To her first question the
appellant replied in the negative, and as for the reasons for him
making a confession he said he would explain everything when
H
354 SUPREME COURT REPORTS (2012] 8 S.C.R.
A his statement was recorded in detail. The magistrate further
satisfied herself that the appellant was willing to make the
confessional statement voluntarily and not under any pressure,
coercion or allurement by the police or anyone else.
Nonetheless, she did not take his statement on that day but told
him that she wanted him to reflect further on the matter, for which
8
purpose she was giving him 24 hours' time. She then
remanded him to judicial custody where he was not accessible
to the police or any other agency.
12. When the appellant was brought back to her on
C February 18 at 11 AM, she had another long exchange with
him. In the preliminary exchanges on the previous day she had
found that the appellant had no difficulty in following or speaking
in Hindi; thus, the interaction between the magistrate and the
appellant took place, in question and answer form, in simple,
D everyday spoken Hindi. The magistrate, having satisfied herself
that the police had no contact with the appellant in the past 24
hours, began by telling the appellant that she had no concern
with the offences for which he was arrested or any connection
with the police that had arrested him. She explained to him that
E he was under no compulsion to make the confessional
statement and further, that whether he made the confessional
statement or not, he would not be handed back to the police.
She confirmed once again that the appellant wished to make
the statement of his own volition and not under any influence.
F 13. The appellant told her his name and gave his address
of a place in Pakistan. She asked him about his education and
where, when and how he was arrested by the police. She asked
him why was he ~rough! to her and in reply he said that he
wanted to make a confessional statement. She asked for which
G offence he wanted to make confession. He replied that on
November 26, 2008, he and his accomplices made a Fidayeen
attack on Mumbai city and he wanted to make a confession
about the attack and the conspiracy behind it. She asked when
he felt like making a confession. He told her that the thought of
H making the confession came to him when he was arrested by
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 355
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
the police. He added that he had absolutely no regret for A
whatever he had done. He wanted to make the confession to
set an example for others to become Fidayeen like him and
follow him in his deeds. The magistrate cautioned him by saying
that he should make the statement only if he wished to do so.
She further cautioned him by saying that any confessional B
statement made by him would be taken down in writing and it
would be used as evidence against him and that might lead to
his conviction. The appellant said he was aware of the
consequences. The magistrate again asked him whether the
police had given any inducement to him to make the c
confessional statement, such as by offering to make him an
approver. He replied in the negative. She then asked if he
needed an advocate while making the confession. Once again,
he answered in the negative.
14. Even after this lengthy and detailed interaction, the D
learned magistrate did not take his confession on that day but
gave him a period of 48 hours for further reflection, telling him
that during that period he would not be in police custody but
would be kept in jail in her custody. She advised him to
reconsider the matter with a composed mind. She then E
remanded him to judicial custody with the direction that he be
produced before her on February 20, 2009, at 11 AM.
15. The appellant was produced before the magistrate as
directed, on February 20 at 10.40 AM. The magistrate repeated F
the entire gamut of explanations and cautions at the end of
which the appellant said that he still wanted to make his
confession. It was only then did the learned magistrate proceed
to record the statement made by the appellant under Section
164 of the Code of Criminal Procedure. The statement could G
not be fully recorded on February 20 and it was resumed on
February 21 at 10.40 AM. On that date, the recording of the
statement was completed. The learned magistrate has
maintained a meticulous record of the proceedings before her
on all those dates, duly signed by the appellant. After recording H
356 SUPREME COURT REPORTS [2012) 8 S.C.R.
A his statement, she also gave such certificates as required under
sub-section 4 of Section 164 CrPC.
16. Coming now to the main body of the confessional
statement, it is in the form of a statement made by the appellant
with only minimal interjections by the learned magistrate. She
8
occasionally asked the appellant to clarify the meaning of some
uncommon words or code words used in the conspiracy. The
appellant's statement, made before the magistrate over two
days, is long and rambling, at points repetitive and full of
seemingly superfluous details that would appear quite
C unnecessary if one is to take a limited view of the case and
judge the culpability of the appellant only on the basis of the
events in Mumbai. To that end, it would be quite simple and
convenient to give a brief summary of the appellant's
confessional statement. But such an approach will not do justice
D to the case and we intend to take a look at the full statement of
the appellant with all its repetitions and details. We do so to
be fair to both the prosecution and the appellant. The details
given by the appellant have a bearing on the prosecution case,
according to which conspiracy, conspiracy to wage war against
E India and waging war against India are some of the main crimes
in the case, and the details given by the appellant throw a great
deal of light on the commission of those crimes. Further, the
details in the appellant's statement are relevant to the
submission that the confessional statement is not truly voluntary
F but that the appellant was manipulated into making that
statement. It is submitted on behalf of the appellant that no
accused making an admission of his guilt would refer to those
unnecessary details and that the great detail of the confessional
statement only shows that it was not the appellant but the
G prosecution that was speaking through his mouth. We,
therefore, scan the confession as it is, in full, unabridged and
unadorned.
THE KASAB NARRATIVE:
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 357
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Family background: A
17. The appellant started by giving his name as
Mohammed Ajmal Mohammad Amir Kasab. He was born on
September 13, 1987. He lived in Pakistan where his address
was village Faridkot, tehsil-Dipalpur, district Okara, Punjab 8
province, Pakistan. He attended the Urdu-medium Faridkot
Government Primary School up to class 4. He lived in the village
with his Abbu Mohammad Amir Shaban Kasab, his Ammi
Noor-e-Elahi, younger brother Munir and younger sister
Surraiya. He gave his father's mobile phone number. He had C
an elder sister and an elder brother, both of whom were
married. The sister lived with her husband at a village in
Pathankot, district Okara, and the brother lived in Lahore with
his wife. He gave the names of the spouses of the elder sister
and the elder brother and their respective add r,esses.
D
18. After the immediate family he gave the names of his
three paternal uncles, elder to his father, and their sons, who
lived in village Mohammad Var Chishti, Pathankot, district
Okara, Pakistan. He also named a fourth patern·a1 uncle,
" younger to his father, who lived with the appellant's father. E
• I
' 19. He then gave the names of his Mamoon (mother's
brother) and his three sons and a daughter and their address;
and the name of his Khaloo (mother's sister's husband), his
address and mobile phone number.
F
20. He gave the name of another sister of his mother whom
he called 'Mamo' and her address.
21. He had two paternal aunts who were married. He gave
their names 'and their addresses. He said that his Mamoon and G
Mousi (mother's brother and sister) had grown-up children.
22. Kasab added that his house at Faridkot had been
taken by his father who earned his livelihood by plying carts.
Kasab was fond of watching TV and Hindi movies; he named
a number of popular Indian films that he had seen many times. H
358 SUPREME COURT REPORTS [2012] 8 S.C.R.
A He was in the habit of chewing tobacco. He was good friends
with the village doctor, Mazhar, who had a dispensary near
Faridkot bus stop.
23. After dropping out of school in the year 2000, Kasab
B and his friend Dittu started working as labourers in Faridkot. In
2001, he and his Abbu went to Lahore in search of employment.
In Lahore he lived with his father and uncle, Ghulam Rasool, in
a house they rented from Haji Qamar. He gave the detailed
address of the house. On his father's instructions, Kasab
started working as a labourer at "Mazdooron Ka Adda". He
C worked there for about five years. In the year 2005, his father
and uncle returned to their village. Kasab continued to stay in
Lahore alone, living in rented accommodation. During this
period he used to visit his village home. On one such visit, he
quarreled with his Abbu over the money earned by him. After
D the quarrel he left the home and started living at Ali Hajveri
Dargah in Lahore. Kasab's friend Shafique got him a job in
Welcome Tent Service. He gave the full address of the
establishment, the name of its owner and the mobile phone
numbers of the owner and his son. He added that the owner of
E the establishment used to call him "Balka". It was here that
Kasab met and befriended Muzaffar Lal Khan, who also worked
there.
Induction into Lashkar-E-Toiba, Indoctrination and
F Training for "Jihad":
24. In November 2007, Kasab and Muzaffar Lal Khan went
to Rawalpindi in search of better employment and took rented
accommodation in Bangash Colony. It was here, around the
month of December, that they saw members of Lashkar-e- Toiba
G going from door to door under the name of Jamaat-ul-Oava,
collecting hides of goats sacrificed on Eid-uz-Zoha. They were
asking people to donate the goat hides to help achieve
independence for Kashmir. Kasab and his friend developed
great respect for those people. They thought that those people
H were fighting for the liberation of Kashmir and they, too, should
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 359
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
do something for their people. When they were working at A
Sarai Alamgir members of Jamat-ul-Dava were organising
camps at different places where they would go to listen to their
speeches. He explained that after Lashkar-e-Toiba was
banned in 2002, it started its activities in the name of Jamat-
ul-Dava. At this time, Kasab and Muzaffar Lal Khan first thought B
of undergoing training for Jihad.
25. In December 2007, they took the address of the office
of Lashkar-e-Toiba from a moulvi and reached its office at Raja
Bazar, Rawalpindi. He added that the office was near Bangash
Colony. There were two persons in the office who asked them C
the purpose of their visit. They replied that they wanted to
undertake Jihad. The office people took their address in full and
asked them to come the following day, with their clothes and
other belongings. They returned the following day. On that day,
a person in the office gave them a slip of paper with "Oaura- D
E-Suffa, Markaz-e-Toiba, Muridke"written on it. He gave them
directions for fy'luridke and told them to go there. They left for
Muridke and, after traveling by bus for six hours, they reached
Muridke bus stand. From there, they walked for about a
kilometer and a half to reach the camp site. To the person there, E
they showed the letter and said that they had come for Daura-
e-Suffa. After subjecting them to a search, he took them inside
the office. There they showed the letter to a person called
Fahadullah (wanted accused No. 8). He wrote down their names
and addresses and admitted them for the training. F
26. Daura-e-Suffa training lasted twenty one (21) days.
There were thirty (30) other boys, apart from Kasab and his
friend, doing the training. During this, they were first converted
from Sunni (sect of Islam) to Ahl-e-Hadis and were given
lessons in the Hadis (a study of the things said by the Prophet G
Muhammad and descriptions of his daily life). An Ustad
conducted physical exercises. Besides, they were given lectures
and lessons on Jihad. In those sessions Fahadullah and Mufti
Sayeed (wanted accused No. 13) were the Ustad. The training
took place between December 2007 and January 2008. In the H
360 SUPREME COURT REPORTS [2012] 8 S.C.R.
A course of the training, Ustad Abu Kata (wanted accused No.
5) introduced them to Hafiz Sayeed, the Ameer of Lashkar-e-
Toiba (wanted accused No. 1), Operational Commander Zaki-
ur-Rehman Lakhvi (wanted accused No. 2), Area Commander
Abu Al-Kama (wanted accused No. 4), Muzzamil alias Yusuf
B (wanted accused No. 6), Training-in-charge Abu Umar Sayeed
(wanted accused No. 18) and Abu Hamza (wanted accused
No. 3). Kasab added that Zaki-ur-Rehman Lakhvi was known
as 'Chacha' and Lakhvi. At that time Kata told them that Abu
Umar Sayeed arranged the training camps of Lashkar-e-Toiba.
c [At this point the learned magistrate interrupted him to ask
the meaning of the word Ameer. He said it meant leader].
27. Kasab said that Ameer Hafiz Sayee<;I exhorted them
by saying that all Mujahedeens must fight for the independence
D of Kashmir; Zaki-ur-Rehman announced that the time had come
for Jihad, adding that their orgainsation had been fighting in
Kashmir for the last fifteen (15) years but the Hindustani
Government was not allowing Kashmir to be independent. It
had, therefore, become necessary to fight a war against
E Hindustan to capture Kashmir. Zaki-ur-Rehman Lakhvi asked
them if they were ready to wage the war. They all said they were
ready for the war. At that time, Abu Al-Kama told them that they
had to attack the major cities of Hindustan; that they would wage
war against Hindustan from within, so that it is weakened from
F the inside. He added that anyone who would die in this war
would go to paradise. In response, Kasab and all his associates
said that they were ready to launch an attack on Hindustan.
28. In February 2008, they were selected for Daura-e-
Amma training. Ustad Fahadullah gave them a letter saying
G "Bhai Vasool Daura-e-Amma", and sent them to Mansera
Markaz Aksa. They traveled for twelve (12) hours by bus to
reach Mansera bus-stand from where they had to walk into the
hilly region. There, at the entrance to the camp they were
subjected to a search. They showed Fahadullah's note to the
H person at the gate and were allowed into the office. The person
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 361
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
in the office wrote down detailed information concerning them A
in a register. After staying there for the day, they were taken to
Buttel village in a van. From there the driver of the van led them
to the top of the hill on foot - a walk of about thirty (30) minutes.
29. In this second training of twenty-one (21) days they did 8
physical exercises and practiced running and climbing over
mountains. They were also given training in dismantling and
assembling 'Ka/ashan', rifles and pistols and taught how to fire
these weapons.
[Here the magistrate asked him the meaning of 'Kalashan'. C
He said 'Kalashan' meant AK 47 rifle].
The Saving of Muzaffar:
30. During this training, Muzzafar's elder brother came and
took him from there. 0
Further Training:
31. Kasab told the magistrate that after the Daura-e-Amma
training a Mujahid could go home if he so wished; alternatively, E
he could remain for three months of 'Khidmar.
[The magistrate asked him what 'Khidmar meant, to which
he replied that it meant keeping watch on the new Mujahids who
came for training, preparing food for them in the kitchen and
generally looking after them]. F
32. He said that he remained to do 'Khidmar of the
Mujahedeens. The 'Ustad' for the trainees who came there
during Kasab's 'Khidmar were Abu Abdul Rehman (wanted
accused No. 9), Yusuf (wanted accused No. 15), Abu Anas G
(wanted accused No. 10) and Abu Bashir (wanted accused No.
11). Kasab did 'Khidmar during March, April and May, 2008.
33. Kasab's 'Ustad', Abu Abdul Rehman, then asked him
to go along with the other 'Mujahedeens' to the office of H
362 SUPREME COURT REPORTS [2012] 8 S.C.R.
A Lashkar-e-Toiba at Model Town, District Okara for 'Daura-e-
Khassa'. As instructed, they went to Mansera bus-stand in the
'Lashkar-e-Toiba' van. After traveling from there by bus for
twelve (12) hours they reached Lahore Lorry Adda (bus-stand).
From there they went to Okara bus-stand by bus and, after
B walking for about one kilometer, they reached the office of
'Lashkar-e-Toiba' near a Masjid at the corner of a lane in Model
Town. They told the people there that they had come to obtain
the note for 'Daura-e-Khassa'. After making inquiries of them
and after making verifications on the telephone, the person
c present there wrote a letter saying "Bhai Vasool". He stamped
this with the flag of the 'Lashkar-e-Toiba' and gave it to them.
He also gave them the address of the 'Lashkar-e-Toiba'
training camp at Muzzafarabad.
34. All of them travelled 16/17 hours in a bus to
D Muzzafarabad. Kasab added that Muzzaffarabad is in POK.
From there they walked for about an hour and, passing through
a 'Lashkar-e-Toiba' hospital called Neelam Dariya, they
reached Sevai Nala. At that place there were 10/12 houses and
a masjid of Lashkar-e-Toiba and the settlement was called
E 'Baitul Mujahedeen'. They gave the Rukka (chit) to a person
called Sayeed and entered the training camp, which was also
called 'Maskar Aksa'. The camp was situated on Chehalbandi
Hills of Muzzaffarabad. There was high security in this training
camp and restrictions on moving in or out of the camp without
F the permission of the 'Ustad'. Abu Muavia (wanted accused No.
28) was the 'Ustad' of this training, which was conducted in the
months of May, June and July, 2008.
35. Kasab told the magistrate that this training was of two
G and a half months in course of which they were turned into solid
'Jihacfls'. They were given lessons in Hadis, Namaz and Quran.
In addition, they were taught to dismantle and assemble
Kalashans and many kinds of rifles and pistols, and to fire from
those weapons, to operate rocket launchers and the use of
hand grenades. They were also given training in the use of
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 363
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
satellite phones, GPS systems and map-reading. The physical A
exercise comprised staying without food for 60 hours while
climbing mountains with heavy loads on the back. He added
that the training was very arduous, so much so that ten (10)
Mujahedeens fled the training camp. Abu Muavia and Abu
Hanzala (wanted accused No. 31) were the 'Ustad' for this B
Daura.
36. During that training, a person unknown to Kasab
visited the camp. At that time, Ameer Hafiz Sayeed, Zaki-Ur-
Rehman Lakhvi and Kata were present there. Ameer Hafiz
Sayeed and Zaki-Ur-Rehman Lakhvi embraced the visitor, and C
'Ustad' Abu Muavia and Abu Hanzala saluted him in soldier
style. Kata introduced him to the trainees as Major General
Saab (wanted accused No. 20) adding that the persons who
were giving them training were his men. Major General Saab
asked them their names and inquired about their training. He D
asked whether they had any complaints. They all answered that
they had none. Major General Saab left after talking to them
for about an hour.
[At this point, the magistrate asked Kasab for the name E
of Major General Saab. He said they were not told his name]
37. Kasab said that after completion of the training his
'Ustad' Muavia gave him Rupees one thousand and three
hundred (Rs.1,300/-) and asked him to go home and then to
Ameer Hafiz Sayeed's office at Baitul Mujahedeen.
F
Preparation for attack on India:
38. Kasab stayed at his village for one week and then,
towards the end of July, 2008, he reached the office of Hafiz G
Mohammad Sayeed at Baitul Mujahedeen. From there 'Ustad'
Muavia took him to Selection Point at Sevai Nala, where 20/
22 Mujahedeens like him were already present. Also present
were Ameer Hafiz Mohammad Sayeed, Muzammil, Abu
Hamza, 'Ustad' Muavia, Kata and Abu Al-Kama. The
H
364 SUPREME COURT REPORTS [2012] 8 S.C.R.
A Mujahedeens were shown a CD on the laptop demonstrating
how Salauddin had made a 'Fidayeen' attack in Kashmir.
Thereafter, Abu Al-Kama explained to them in detail how
'Fidayeen' attacks were made in Kashmir.
B 39. Ameer Hafiz Sayeed selected them and gave them
new names. He named Kasab 'Abu Mujahid' and lmran Babar
from Multan of Punjab region 'Abu Aqsa'; Nasir of Faisalabad
was named 'Abu Umar' and Nazir Ahmed 'Abu Omair'; Hafiz
Arshad of Multan Road, Punjab, was called Abdul Rehman
C 'Sada' alias Hayaji; Abdul Rehman (Chhota) of Multan Road,
Arabwala, was called 'Saqib'; Soheb from Narowala, Shakkar
Garh, Punjab, was given the name 'Abu Soheb'. Some other
colleagues of Kasab, who came from different places in
Pakistan and whose names he did not recall but whom he
identified with reference to the places from which they came,
D were similarly given pseudonyms by Hafiz Sayeed.
40. On the same day in the evening they were taken to the
office of Baitul Mujahedeen.
E 41. The fifteen (15) selected persons then left for Markaz-
e-Toiba, Muridke, for the Daura-e-Ribat training. In this session,
which lasted one month, they were given intelligence training,
such as gathering knowledge about the target, keeping watch
on him, following him and dodging if someone were to follow
them. Kasab described one of these tricks to the magistrate,
F telling her that if they suspected that they were being followed,
they would switch on the indicator light on the right and then
suddenly take a left turn. That is how they would find out if they
were being followed. They learnt how to use fake identities while
on a mission. Training in-charge Abu Sayeed gave special
G attention to this training. He would frequently come to them and
make queries about the training.
42. During the training two of Kasab's colleagues, Nasad
and Abu Muavia, left the camp and went away.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 365
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
43. Abu Kafa and lmran (wanted accused No. 12) were A
the Ustad of this Dauara. During this training, Major General
Saab came there twice. He watched them train and encouraged
them. The Daura was completed ih the end of August, 2008.
At that time Muzammil alias Yusuf and Abu Al-Kama had also
come there. Major Saab asked them if they could swim, to B
which they answered in the affirmative. Then Major Saab asked
Kafa to give them marine training. Kafa said he would do so.
44. A few days later, in September, 2008, Kafa took them
to Karachi by train. There they were lodged in a house in
Azizabad mohal/a. It was there in the month of September, C
2008, that Ramzan started. Kafa took all the thirteen (13)
Mujahedeens to the creek from where they all sailed to the sea
at Karachi on two small boats. Here, they were put on a boat
with an engine attached to it. On that boat a person called
Hakim Saab (wanted accused No. 14) gave them three days' D
marine training. During the marine training they were taught to
read and use maps, to fathom the depths of the sea, to use
GPS for marine-ways, to cast fishing nets and to sail.
[At this point the magistrate asked Kasab why they were E
taught to cast fishing nets. He replied that in order to deceive
the naval officers of the enemy they would say they were
fishermen].
45. After the marine training, Kafa took them back to Baitul
F
Mujahedeen. There, Ameer Hafiz Sayeed and Zaki-ur-Rehman
Lakhvi asked them about the marine training.
46. Three days later, Ameer Hafiz Sayeed and Zaki-ur-
Rehman Lakhvi sent six (6) Mujahedeens from among them
(whose names Kasab told the magistrate) for a 'Fidayeen' G
attack in Kashmir. On the following day, Abu Hamza introduced
three men to their group: Ismail Khan from Dera Ismail Khan,
Punjab, Fahadulla, and Javed from Okara, Punjab. Hafiz
Sayeed named them Abu Ismail, Abu Fahadullah and Abu Ali.
Abu Hamza told the group that these three were 'Fidayeens' H
366 SUPREME COURT REPORTS [2012] 8 S.C.R.
A like them; they had also taken training like them and they were
also going with them to carry out the attack on Hindustan.
47. On the thirteenth (13th) Roza Hafiz Sayeed, Zaki-ur·
Rehman Lakhvi, Muzammil alias Yusuf, Al Kama, Abu Hasan,
B Abu Kafa and Abu Umar Sayeed called them into the office of
Baitul Mujahid. Ameer Hafiz Sayeed addressed them there.
He said that the time for 'Jihad' had come and they were now
required to consider how best to launch the attack on Hindustan.
After him Zaki-ur-Rehman Lakhvi spoke and said that the
economic strength of Hindustan lay in Bombay and it was
C therefore necessary to direct the attack on Bombay. He added
that they had taken good marine training and hence they would
attack Bombay from the sea route. Major General Saab also
came to this meeting. He embraced Ameer Hafiz and Zaki-ur-
Rehman Lakhvi and they talked to each other at some distance
D from the rest of the group. After a while they came to the group
and Zaki-ur-Rehman Lakhvi said that Major General Saab
wanted to see their preparedness. Immediately, each of them
was given a 'Kalashan' and a loaded magazine. Major General
Saab asked Ameer Hafiz to have the targets fixed at which
E AmeerHafiz directed Kafa to fix ten (10) targets. Major General
Saab said that when he shouted "fire" they should fire a single
shot and when he shouted "fire" twice they were to make 'rapid
firing'.
F 48. All of them took position. Major General Saab watched
them taking position and then he shouted "fire". Each of them
fired a single shot. Except lmran Babar, everyone shot the
target. Ameer Hafiz Sayeed rebuked lmran Babar severely.
Major General Saab, too, told lmran Babar to practice shooting
G properly. Major General Saab then asked everybody to take
position. They all resumed position and Major General Saab
shouted "fire" twice. All of them emptied their magazines. Major
General Saab then walked upto the targets and inspected them
closely. He asked who had fired at (target) No.4. Kasab said
it was he. Major General Saab complemented him saying that
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 367
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
he had destroyed the target entirely. He told the others that they A
had to destroy the target fully using minimum bullets and then,
pointing at Kasab, he told the others that this is the way firing
should be done. He then left and went away.
49. Then Kafa introduced them to a person called Zarar B
Shah (wanted accused No. 7). Kasab and Ismail asked him
about Zarar Shah, at which he told them that Zarar Shah and
Ibrahim were the Ameerof the media wing of their organization.
Zarar Shah was a computer expert. He could use computer
technology to make a call from Pakistan appear, deceptively, C
as if it was being made from some other country. Zarar Shah
and Ibrahim had set up a high technology media room. In this
room they had collected maps, CDs and other information
concerning the major cities of every country in the world on the
basis of which they selected the targets and advised Zaki-ur-
Rehman Lakhvi. D
50. Ameer Hafiz Sayeed and Zaki-ur-Rehman Lakhvi then
divided the ten (10) 'Mujahedeens' into five (5) 'buddiyas'.
[The magistrate asked what a 'Buddiya' was. Kasab said E
'Buddiya' meant a pair].
51. The Buddiyas were: 1. Kasab & Ismail Khan; 2. lmran
Babar & Nasir; 3. Soheb & Nazir Ahmed; 4. Hafiz Arshad alias
Hayaji & Javed; and 5. Abdul Rehman (Chhota) & Fahadullah.
F
52. Then, Zaki-ur-Rehman Lakhvi told them that on the
twenty-seventh (27th) Roza they were to go and make the
"Fidayeen" attack on Bombay. Ameer Hafiz Sayeed said to
them that for going from Karachi to Bombay, a Hindustani boat
would have to be hijacked and they would go to Bombay by G
that Hindustani boat. He added that the "maali ha/at" of
Hindustan was based on "videshi sai/aniyon". Therefore, in
order to weaken the "maali ha/at" of Hindustan it was
necessary to attack, among other places, those places
frequented by "videshi sai/aniyon ". H
368 SUPREME COURT REPORTS [2012] 8 S.C.R.
A [At this point the magistrate interrupted to ask the meanings
of "maali halal" and "videshi sailani". Kasab translated the two
expressions as "money power" and "foreign tourists'].
53. Ameer Hafiz Sayeed told them that they would fire from
B "Kalashan" while also throwing hand grenades at VTS, Malabar
Hill, Taj Hotel at Colaba, Leopold Hotel, Oberoi Hotel and
Nariman House Building where Israelis stayed in Bombay. He
added that while firing they should specially target the
Americans, the British and the Israelis because those people
had greatly oppressed the Muslims. At VTS there would be a
C very large crowd and while firing there they should not think of
whether their targets were Muslims or Hindus. They should just
open 'brush fire' without any thought as to who they targeted.
However, while firing at the hotels they should take care that
no Muslim was killed in their attack. Then, Zaki-ur-Rehman
D Lakhvi asked the two "buddies" who were assigned the attack
on the Taj Hotel and the Oberoi Hotel to set the two hotels on
fire and to cause damage to them on a large scale. Zaki-ur-
Rehman Lakhvi said that before launching the attack they must
fix the ROX bombs around their targets. The bomb blasts would
E cause traffic jams and slow down the movement of the police
coming to the rescue, and would thus make it easier for them
to kill the policemen, besides many other people.
54. Ameer Hafiz Sayeed fixed the time for the attacks at
F 7.30 PM. When Kasab asked why the attack should take place
at that particular time, Hafiz Sayeed explained that this was the
time when the targeted places would be most crowded, and
insisted that the attack must take place at 7.30 PM. Kafa told
them that the ten (10) "Mujahedeens", would be given ID cards
G with fake Hindu names and that they would go to Hindustan with
those fake ID cards. On the way, they would also tie sacred
threads around their wrists like Hindus do. When Ismail asked
about the need for ID cards and threads, Kafa replied that with
those ID cards nobody could stop them and they would be
H easily successful in their mission. And the threads on their
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 369
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
wrists would deceive the police. A
55. Continuing his story, Kasab told the magistrate that at
that meeting they decided that he and Ismail would begin firing
at VTS to make piles of dead bodies. From VTS they would
go to Malabar Hill and start firing there. Hafiz Arshad and Javed B
would do the firing at Hotel Taj; Fahadullaah and Abdul Rehman
(Chhota) at Hotel Oberoi; lmran Babar and Nasir at Nariman
House; while Soheb and Nazir would begin firing at Hotel
Leopold and then join Hafiz Arshad and Javed at the Taj Hotel.
Further, while going to VTS he would plant an ROX bomb under
the driver's seat in the taxi; Nazir Ahmed and Javed would C
similarly place the bombs in the taxis they would hire to Leopold
Hotel and Taj Hotel respectively. The taxis used by them would
thus explode at some other place and no one would have any
clue regarding how they came and where they came from. The
Buddiyas at Nariman House, Oberoi Hotel and Taj Mahal Hotel D
would talk to the media and falsely tell them that they had taken
some people hostage and (on that strength) would ask the
Hindustan Government to allow Kashmir to be free. They would
deceive the media into believing that they were Hindustani
Muslims in large numbers and would thus generate fear. E
56. Ameer Hafiz said Abu Hamza would teach them how
to plant ROX bombs and how to cause blasts.
57. Ameer Hafiz Sayeed, Zaki-ur-Rehman Lakhvi,
Muzammil alias Yusuf, Abu Al-Kama, Abu Umar Sayeed, Kata, F
Abu Hamza and Zarar Shah then took the ten (10)
"Mujahedeens" to a big hall. In that hall there were two or three
TVs. Zarar Shah told them that this was the control room of the
media wing. Zarar Shah showed them the different roads of
Bombay and their different targets on a big TV screen. He G
showed VTS and Malabar Hill to Kasab and Ismail Khan on a
CD. He also gave them detailed information about the roads
leading to VTS and Malabar Hill. Kata used Google Earth on
a laptop to show them how to go from Badhwar Park in Mumbai
H
370 SUPREME COURT REPORTS [2012) 8 S.C.R.
A to VTS and from VTS to Malabar Hill. Kafa also showed them
some maps that were drawn by hand and told them that Fahim
Ansari and Sabauddin Ahmed in Hindustan (Accused 2 &3)
had prepared those maps and sent them from there. He said
that with the help of those maps they would easily reach the
B places targeted by them. Having told them how the maps were
obtained, Kafa explained the maps to them. Kasab asked
where Sabauddin and Fahim were. Kafa said both of them
were arrested in Hindustan. Kasab asked why they were
arrested, to which Kafa replied that they were arrested in
C connection with an attack made on a police camp at Rampur
in India. Then, on the basis of one of the maps, he explained
how long it would take them to go from Badhwar Park to VTS
and from there to Malabar Hill. Kafa told them that Cooperage
Ground and Azad Maidan fall on the way to VTS and told them
to mention those places to the taxi driver. Kafa gave similar
0
information to the other "Buddiyas" on the basis of the CD,
Google Earth and the maps sent by Sabauddin and Fahim.
58. On the day of the fifteenth (15th) Roza, Abu Hamza and
Kafa took the ten (10) Mujahedeens to the hills of
E Muzaffarabad. There they practiced how to take position and
fire with Kalashans. They were also taught how to make the tiffin
bomb from ROX, how to fix a blast timer into it and how to set
off the bomb. At that time, on the instructions of Ameer Hafiz
Sayeed, Abu Hamza and Kafa gave more firing practice to
F lmran Babar.
59. The same night they returned to Baitul Mujahedeen.
60. On the day of the sixteenth (16th) Roza, Kafa asked
them to shave and cut their hair. They were given new clothes,
G shoes and socks. On Kafa's instruction they cut off the labels
of the new clothes. Kafa also gave them watches set to Indian
time. On the same day, Kafa had their photographs taken.
61. On the day of the seventeenth (17th) Roza, Kafa took
H them to Karachi city by train and there they went to a house in
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB @ABU 371
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Azizabad mohalla. Lying in the house was an Urdu magazine A
called "Taibat" that featured the names of the six (6)
"Mujahedeens" who had gone on the Kashmir Mission and
been martyred there. Kasab asked Kafa about them. Kafa said
that their colleagues had become martyrs in the encounter with
the Hindustani army and that Allah would rest their souls in B
heaven.
62. On the day of the eighteenth (18th) Roza, Kafa brought
ten (10) timers and explained to them how to fix a battery in
the timer and how to set the time. On Kafa's instructions they C
affixed their names on one timer each, after which Kafa took
the timers back from them. At that time, according to the plan,
Kafa also gave all of them ID cards with their Hindu names.
Kasab's ID card showed him as Sameer Choudhary son of
Dinesh Choudhary of Arunodaya Degree College, Bangalore.
lsmail's ID card described him as Naresh Verma son of Vilas D
Verma of Arunodaya Degree College, Hyderabad. All the ID
cards were of Arunodaya College. Kasab listed the different
fake Hindu names given to the rest of his colleagues.
63. Kafa took them back to the Karachi harbour and they E
stayed on the sea for one day. On that expedition, Hakim Saab
taught them how to dismantle, assemble and run a small
inflatable boat. He showed them how to take out the sea valve
and sink a boat. He explained to them about "tul" and "chourai".
[Here the magistrate asked him to explain "tul" and F
"chourai". He explained that "tuls" were the vertical and
"chourais" were the horizontal lines on a map]
64. On the twentieth (20th) day of Roza, Lakhvi came there
and said that the work had been stopped for some time. At this G
Kasab said to Lakhvi that there was no need for them to wait.
He could make their mission successful, according to the plan,
and there was no need for him to worry. Kasab further said that
he had longed for it for so many years and asked Lakhvi not to
create any obstructions. At this, Zaki-ur-Rehman Lakhvi started H
372 SUPREME COURT REPORTS [2012] 8 S.C.R.
A laughing and said that he knew from the beginning that he was
a firm "Jihadi", but he asked him to wait for some time. The
next day Zaki-ur-Rehman Lakhvi left, though the Mujahedeens
continued to stay in the Azizabad house. During those days
lmran Babar would make them repeat the names on their ID
B cards. Of them, lmran Babar alone was properly educated and
he could, therefore, read and write English.
65. They celebrated 'Ramzan Eid' in the Azizabad house.
During this period Abu Hamza taught them how to plant a bomb
C under the seat in a moving car and gave training to Kasab,
Javed and Nazir Ahmed on how to plant a bomb under the
(driver's) seat while sitting in the back seat of the car. They were
in the Azizabad hous!:l for almost a month and a half. On
November 18, Kafa left, taking Nasir and .Nazir Ahmed with
him.
D
Arming for the Invasion:
66. On November 21 they were driven from Azizabad in a
car to a house near a creek. Zaki-ur-Rehman Lakhvi, Zarar
E Shah, Abu Hamza, Kafa, Nasir and Nazir Ahmed were already
present there. Zaki-ur-Rehman Lakhvi had made Ismail Khan
the 'Amee!' of the mission. In the house near the creek there
were a number of boxes containing the 'goods'. Those boxes
were opened in their presence and all the 'goods' were handed
over to Ismail. The 'goods' were Aslaha, barood (explosives)
F and eatables.
[The magistrate asked what "Aslaha" is. Kasab replied:
weapons].
G 67. Abu Hamza had explained to Ismail how the "Aslaha"
and "Barood" were to be distributed. Ismail noted down all the
instructions in his diary and took all the articles in his
possession. Thereafter Abu Hamza gave Kasab and Ismail
Rupees ten thousand and eight hundred (Rs.10800=00) in
H Indian currency. They divided it between themselves. All the
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 373
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
other 'buddies' were also given Indian money. Then Zarar Shah A
gave each of them a mobile phone. Ismail asked which place
the numbers belonged to. Zarar Shah replied that those
numbers were of Hindustan. He added that they had obtained
the SIM cards from Hindustan by tricking some people there.
He added that the SIM cards would get activated on reaching B
Bombay. He asked them to use the phones on reaching
Bombay. Kasab asked about the numbers on which they could
talk to them. Zaki-ur-Rehman Lakhvi said that Zarar had fed
their numbers in the mobiles and that on punching the green
button twice the phone would be connected to them and they c
would be able to report to them about the work.
68. He then gave some (telephone) numbers to Ismail and
asked him to note down those numbers in his diary. Ismail
noted down the numbers in the diary which he always kept with
him. Zaki-ur-Rehman Lakhvi also gave the names of some D
areas of Bombay, like Colaba, WTC etc., which names, too,
Ismail noted down in his diary. During the training, Abu Hamza
had given them some codes so that no one would suspect while
they communicated on the phone. Ismail had those codes and
the details of "tul" and "chou rai" also noted in his diary. E
Thereafter, Zaki-ur-Rehman gave a satellite phone to Ismail and
left.
69. Ismail then distributed the weapons and the explosives.
He gave a large sack to all the "Mujahedeens". He also gave F
each of them one (1) 'Kalashan', eight (8) magazines, two
hundred and forty (240) rounds, eight (8) hand grenades, one
bayonet (Kasab called it "Sangeen'), one (1) pistol with three
(3) magazines, twenty-one (21) rounds, one (1) water bottle, one
(1) Kg raisins, one (1) headphone and three (3) nine (9) volt G
batteries along with a charger. He also gave each of them an
ROX bomb of eight (8) Kg that was kept in a tiffin box in a small
sack. He also gave each 'buddy' a GPS system and a small
pouch to everyone to tie around the waist.
70. All of them took th.eir goods and cleaned and serviced H
374 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the "Kalashan" and the pistol; put thirty (30) rounds in each
magazine of their "Ka/ashan" and seven (7) in those of the
pistol. As trained, they joined two (2) magazines together with
tape so as to easily replace the magazine being emptied while
firing from "Kalashan". They then packed all the "aslaha", the
B other goods and their new clothes in the large sack. Everyone's
sack, containing the bombs and the goods, was kept for the
night in the Lashkar-e-Toiba's car. Ismail asked all of them to
keep their ID cards with Hindustani names in their pockets, and
they did as instructed.
c 71. At night, Abu Hamza and Kata told Ismail to note down
the "tul" and "chourai" while on their way to Bombay so that they
could reach Bombay with the help of GPS without difficulty.
Ismail made the notes in his diary, as instructed by them, in
Kasab's presence.
D
The Journey to Mumbai by Sea:
72. On November 22, they woke at six (6) in the morning
and offered Namaz. Then they left for Karachi, along with Kata
E and Abu Hamza, to make the "Fidayeen" attack on Bombay.
After walking for about thirty (30) minutes they reached a creek.
Zaki-ur-Rehman Lakhvi was present there. He told them that
the "Aaqa" (master) Hafiz Sayeed and all of them had worked
very hard for that mission. Their efforts must bear fruit. They had
been trained fully in every skill. They must not be let down. That
F was their responsibility. Zaki-ur-Rehman further told them to
switch on the mobile phones on reaching Bombay. He said that
the "buddiyas" targeting Nariman House, Taj Hotel and Oberoi
Hotel would communicate with the media. They (Zaki-ur-
Rehman and the other conspirators) would tell them afterwards
G what to say to them. They (Zaki-ur-Rehman and the other
conspirators) would also send e-mail to the media and
challenge the Hindustani government. Zaki-ur-Rehman then
handed over to each 'buddy' the maps sent by Sabauddin and
Fahim. Ismail kept the map that showed the way to reach VTS
H and Malabar Hill. Zaki-ur-Rehman instructed them to tear up the
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 375
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J]
maps after reaching their destinations. Thereafter, Zaki-ur- A
Rehman prayed for them saying that he put them under the
protection of Allah and Allah would protect them. He further
prayed that Allah might let them complete the desired work fully.
He then gave instruction to Ismail to take out the sea valve
before leaving the Hindustani boat s6 that it would sink into the s
sea. Zaki-ur-Rehman then took Ismail aside and talked to him
privately.
73. At around seven (7:00 AM) in the morning a small
wooden boat arrived to take them. After sailing in that boat for C
an hour and a half, they were transferred to a bigger boat and
the small boat went back. Hakim Saab and his three colleagues
were also there in the big boat. At about 9:00 PM they boarded
an even bigger vessel, Al-Hussaini, while Hakim Saab and his
three colleagues returned in the second boat. There were seven
(7) persons on the Al-Hussaini from before, of whom three were D
called Murshad (wanted accused No. 16), Aaquib (wanted
accused No. 17) and Usman (wanted accused No. 19). They
were all members of Lashkar-e-Toiba. Murshad gave them the
sacks containing the bombs, and the "Kalashan" that were
packed in the Karachi house. Murshad also gave Ismail a E
rubber speed boat, a pump to fill air in the rubber boat, life
jackets, blankets, rice, flour, oil, pickle, milk powder, match
boxes, detergent powder, tissue papers, bottles of Mountain
Dew cold drink, dental cream, spray paint, towels, shaving kits,
tooth brushes, etc. F
They spent that night on Al-Hussaini.
74. [At this point the court time was over but Kasab's
statement was incomplete. The magistrate, therefore, sent him
back to judicial custody. He was again produced before her on G
the following day, February 21, 2009, at 10.40 AM. The
magistrate once again satisfied herself that he had been
insulated from any external influence and would make the
statement completely voluntarily. She then resumed taking
down his statement]. H
376 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 75. Continuing the narrative where he stopped on the
previous day, Kasab said that on November 23, at about 12.00
PM they had traveled by Al-Hussaini for about half an hour (sic)
when they saw a boat coming towards them. Usman waved a
broken engine belt, indicating to the people on that boat that
B they were in need of help and, on the pretext of seeking their
help in changing the broken belt, they approached that boat and
captured it. The name of the Hindustani boat was "Kuber". Four
persons on that boat were taken hostage by Hakim Saab and
Usman and were brought aboard the Al-Hussaini. They also
C brought from the Kuber TV set and VCR and some other
articles lying on it to the Al-Hussaini. Then all ten (10)
"Fidayeens" along with all their belongings boarded the Kuber.
The "Nakhva" (navigator) of "Kuber" was also put in their
custody. Then, on Hakim Saab's instructions, Ismail checked
the amount of diesel on Kuber. The "Nakhva" told him that there
0
were seven hundred (700) liters of diesel in its tank and another
four (4) drums filled with diesel on board. Ismail asked him
whether that would be sufficient to take them to Bombay to
which he replied that that may not be sufficient to carry them to
Bombay. Hakim Saab told Ismail that there might arise the need
E for more diesel, and asked his three colleagues to transfer the
iron drums and plastic cans filled with diesel from Al-Hussaini
to Kuber.
76. Thereafter, according to plan, they sailed for Bombay,
F with the help of GPS and the "tu/" and "chourai" that were given
to them, and with the assistance of Amarchand Solanki, the
Nakhva of Kuber.
77. On Kuber, lmran Babar was assigned the work of
G cooking and the other nine (9) men were divided by Ismail in
groups of three each for guard duty. Kasab was in the group
with Ismail Khan and Nasir. Each group was given guard duty
for two hours on rotation basis. Ismail also noted down in his
diary the hours assigned to each group, mentioning the
members of each group by the names given to them by Hafiz
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 377
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Sayeed. A
78. After sailing tor some distance, they tied :he "Nakhva's"
hands, blindfolded him and made him sit near the engine. The
three groups guarded the Kuber against any unfriendly intrusion
round the clock and they also kept a watch on Amarchand, the
"Nakhva". Ismail and Javed were sailing the boat with the help B
of the "Nakhva". During the voyage they were talking to Abu
Hamza on the satellite phone. And Ismail was verifying with the
aid of GPS that they were sailing in the right direction. They
were also feeding the "Nakhva". They filled diesel in the engine
of the Kuber thrice on the journey to Bombay, with help from C
the "Nakhva".
79. On November 26, at 11.00 AM, according to plan, they
tied red-yellow coloured threads around their wrists. Around
4.00 PM on that day they neared Bombay and its tall buildings o
came within into sight.
Kasab shames the Butcher:
80. According to plan, Kasab called Abu Hamza on the
satellite phone. He told him that they had reached Bombay and E
asked what was to be done with the "Nakhva". Abu Hamza
laughed and said he should do whatever he wanted. Kasab
then told Ismail that it would be better to kill the "Nakhva". Ismail
agreed with him. Kasab then asked Soheb and Nasir to hold
the "Nakhva" by the legs in the engine room. He himself yanked F
him by the hair and pulling his head down cut his neck. He then
hid his body in the engine room.
81. Meanwhile, Ismail, Fahadullah, Jayed and Nazir
Ahmed began inflating the rubber speed-boat with the pump. G
After half an hour, when the boat was filled with air, it was
lowered into the sea. They wore the new clothes purchased
from the market in Karachi. Kasab put on a red T-shirt and, over
it, a blue T-shirt with a cap attached to it and green cargo pants.
H
378 SUPREME COURT REPORTS [2012)? S.C.R.
A Like him, the others also put on the new clothes purchased from
the market in Karachi. They all put on red life jackets and yellow
waterproof trousers. They left behind the clothes they had
travelled in on the Kuber. Kasab left a white shalwar and a
white shirt that he had been wearing earlier. All of them offered
B namaz and then, according to plan, they all took out their mobile
phones from the bags and switched them on. But there was no
network on the sea. They unloaded all the articles for the attack
on to the speed- boat. While they were engaged in moving from
the Kuber to the speed-boat, they saw a boat approaching.
C They thought it was a 'navy' boat. Alarmed, they quickly got into
the speed-boat and set sail. In his haste, Ismail forgot to take
out the sea valve of the Kuber. He also forgot his satellite phone
on the Kuber.
82. They left the Kuber at a distance of about four (4)
D nautical miles from Bombay and sailed for Bombay on the
speed-boat. Ismail was sailing the speed-boat The speed-boat
had the engine of Yamaha Company. Nazir Ahmed, with the
aid of GPS, was showing the way to Bombay. On the way,
Ismail said that first he and Kasab would leave for VTS by taxi,
E then Soheb and Nazir Ahmad would go to Leopold Hotel by
taxi, and then Javed and Hafiz Arshad would go to the Taj Hotel
by taxi. Im ran Babar and Nasir would walk to Nariman House.
Last of all, Fahadullah and Abdul Rehman (Chhota) would go
to Oberoi Hotel in the speed-boat. Ismail asked Kasab, Soheb
F and Javed to place ROX bombs, according to plan, under their
taxi drivers' seats. He told the others to place their bombs near
the targets.
83. After sailing for about an hour and a half or two hours
they reached the Bombay shore. According to plan, Abu Ali
G jumped out and anchored the boat to the shore. First, Ismail
and Kasab alighted from the speed-boat. They took their bags.
Both Ismail and Kasab removed their life jackets and
waterproof trousers and threw them into the sea. After getting
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 379
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
off the boat, Kasab put on his shoes. Following Kasab and A
Ismail, the others also got off the speed boat. At that time it was
about 9.00 PM and according to the plan they were late by
about an hour and a half.
84. On getting down from the boat they came across two 8
persons. They asked them who they were and from where had
they come. Kasab told them that they were students. Ismail had
an altercation with them.
The Attack:
c
85. Ismail and Kasab took their bags and walked up to the
road. They took a taxi. Ismail sat in the front and Kasab sat in
the back seat. Ismail asked the driver to take them to VTS. He
started talking to the driver. Meanwhile Kasab fixed two nine
(9) volt batteries to the wire of the. timer in the bomb in the bag. D
He placed this bag, containing the bomb, under the driver's
seat. He had set the time of explosion for after an hour and
fifteen minutes.
86. They reached VTS within fifteen to twenty minutes and
were annoyed to find the crowd at the station far less than what E
they had seen on the CD. Ismail tried to communicate with Abu
Hamza on his mobile but the mobile did not show any network.
Ismail then tried to make the call from Kasab's mobile but his
mobile, too, did not work. Ismail kept Kasab's mobile with him
and both of them entered and came inside the passage. They F
saw the stairs going upwards. The people there had come with
large bags and from that they gathered that this platform was
for long-distance trains. There was a toilet nearby. Kasab gave
his bag to Ismail and went to the toilet. When he came back,
Ismail went to the toilet carrying the !!mall bag containing the G
bomb with him. Inside, according to plan, he fixed the batteries
in the bomb and came out with the bag containing the bomb.
Ismail put the bag containing the bomb among the passengers'
luggage. They then signaled to each other and decided to open
fire. Kasab took out the 'Kalashan' from his bag and Ismail took H
380 SUPREME COURT REPORTS [2012] 8 S.C.R.
A out a hand grenade from his bag. He removed its clip and threw
it at the people. At the same time both Kasab and Ismail
started firing on the people present there. After a while, Ismail
threw another grenade at the people. They continued firing from
their 'Kalashans'. As a result of the firing, many people were
B killed on the station. The people at the station were frightened
and started running in all directions. Within a short time, the
entire station was empty. Meanwhile the police had started firing
on them. Both of them fired back at the police, giving cover to
each other.
c 87. The police continued to fire at them and tried to stop
them. Ismail and Kasab shot the policemen dead and came
out of VT station through the stairs. (He refers to the foot-
overbridge on the side of platform No.1 of the local lines).
Kasab said that he fired almost six magazines at the station.
D
88. After coming down from the overbridge they looked for
a taxi in the lane (Badruddin Tayabji Marg). But they found none.
They tried to open the cars parked in the lane but were unable
to open any car. They moved ahead in the lane. They both fired
E in that lane. At that time heavy police firing started and they
decided to enter the opposite building (which happened to be
Gama Hospital), climb to its terrace and kill the policemen by
firing and throwing grenades at them from this higher position.
89. They jumped over a closed gate, entered the building
F and climbed up its floors. The police followed them into the
building. They fired at the police and the people and also threw
hand grenades at them. At that time the police was also firing
at them. They shot the policemen dead. Then, as the firing
stopped, they came down. They were in that building for almost
G an hour. Then they came to know that the building was a
hospital. They could hear the screams of women and cries of
children coming from the rooms of the building. They decided
to enter every room of the building and to kill the women and
children there. They tried to open the doors of the rooms but
H all the doors were closed from inside and the iron-grill doors
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 381
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
outside were also closed. They were unable to open any of the A
doors. They decided to get out from that building and go to their
last target. They came down from the building and moved
ahead, taking cover of a wall. After moving ahead, they jumped
over lhe wall and came out on the road.
B
90. They moved ahead on the road, keeping on the right
side, taking cover of the wall. They saw a policeman coming.
Kasab pointed his 'Kalashan' at him and fired, killing the
policeman on the spot. At that time they were fired at from the
opposite direction. They fired in retaliation and entered a lane.
They saw a white car with a red beacon light in the lane moving
c
backwards. Kasab fired at the car. The car moved for a little
distance and stopped. Ismail threw a hand grenade at the car
and Kasab again fired at it with a view to make the car move
away from there. But when they reached near the car and tried
to open its door they found all the window glasses raised and D
the doors locked and the driver lying dead inside the car. They
tried to open the door of the car but were unable to open it.
91. Then they saw a car with a yellow light coming towards
them from the opposite direction. Seeing that car, both of them E
hid in the bushes, taking the cover of the wall behind them. As
soon as that car came near them, they fired at it; at the same
time shots were fired from the car, hitting Kasab on both his
hands. When the firing from the car stopped they looked at the
car and found that the persons inside the car were policemen F
and all of them were dead. They tried to open the car's rear
door but it did not open. Kasab was injured and he stood
leaning on the vehicle, shaking his hands, while Ismail fired a
round of 'brush fire' on the road behind the car. Ismail then went
near the car and pulled out the dead bodies of the driver and G
the policeman sitting behind the driver. Kasab pulled out the
dead body of the policeman sitting next to the driver and threw
it on the ground. There were no rounds left in lsmail's 'Kalashan'
and, therefore, he picked up the policeman's 'Kalashan' from
the car. He started the car and drove at full speed. He told
H
382 SUPREME COURT REPORTS [2012] 8 S.C.R.
A Kasab that bullets had hit him on the legs and in the armpits.
92. After some time they reached the chowk and found a
large crowd comprising both policemen and the public. Ismail
fired at the policemen and the public while continuing to drive
B the car. After some time it appeared that the back right tyre of
their car was punctured. Ismail was, nevertheless, driving the
car at a very high speed. Then, on seeing a white car
approaching from the opposite direction, Ismail stopped their
car. Kasab fired from his 'Kalashan' in the air and both of them
got out of the car. He went towards the white car and, pointing
C the 'Kalashan' at the driver, asked him to stop the car. The
driver immediately stopped the car. Ismail pulled him out. At
the same time the person sitting next to the driver and the
woman sitting on the back seat also got out. All this while,
Kasab was giving cover to Ismail. Having thus snatched the car,
D Ismail sat on the driver's seat and Kasab quickly sat next to him
and they left. At this point Kasab asked Ismail where they had
to go. Ismail said they had to go to Malabar Hill. Kasab further
asked where exactly in Malabar Hill. Ismail said he would tell
him on reaching Malabar Hill.
E
93. After going for some distance, Kasab saw that they
were traveling on a road going along the sea and then he
realized that this road was shown in the map by Sabauddin and
Fahim as going towards Malabar Hill. While they were driving
F at full speed, going in the direction of Malabar Hill, they saw
the barricade on the road and policemen standing around the
barricade. The policemen had seen their car moving at great
speed from a long distance and were asking them to stop by
raising their hands and blowing their whistles. Realizing that it
G was impossible to cross the barricade by smashing against it,
Kasab asked Ismail to stop the car at some distance from the
barricade and to keep the headlights on so that the policemen
would not be able to see either them or the number of their car.
Ismail stopped the car at some distance from the barricade and
kept the headlights on. The policemen were shouting at them
H and were asking them to switch off the headlights.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 383
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
94. Looking around, Kasab saw that the road divider on A
his right was very low and thought they could cross it by driving
the car at very high speed. He advised Ismail accordingly. Ismail
immediately switched on the water spray on the wind screen
and started the wiper. He took the car a little ahead and turned
it to the right in the direction of the road divider. He drove at B
full speed but the car did not go over the divider and stopped
there. At the same time the policemen charged at them from
both sides. Realizing the gravity of the situation they both raised
their hands. But the policemen kept coming at them. Seeing
this Ismail tried to pick up the 'Kalashan' but it was kept below c
and he couldn't take it out. He then picked up his pistol, which
was kept on the seat, and fired at the policemen. At the same
time, Kasab saw a policeman coming towards him; he 6pened
the door of the car and got hold of his 'Kalashan'. The police
had started firing. A policeman tried to snatch the 'Kalashan' D
from him. In the struggle, Kasab fell down but he had his finger
on the trigger and he pressed it. The bullets hit a policeman
holding a rifle and he collapsed on the ground. The other
policemen beat him with lathis and snatched the 'Kalashan' from
his hands. Ismail was injured in the police firing and he too was E
overpowered.
95. Kasab said that he and Ismail were then brought to
the hospital in an ambulance. In the hospital he learnt that Ismail
died by police bullets. He gave his and lsmail's names to the
police and the doctors and also told them that they were F
Pakistanis.
96. He concluded his statement before the magistrate by
saying that the doctors in the hospital cleaned and bandaged
his wounds and got him admitted in the hospital. There the G
doctors took away his blood-smeared clothes and gave him
hospital clothes to wear. When the police asked him about his
colleagues and how they reached Bombay he told them
everything.
97. This is the appellant's account, as told by him to the H
384 SUPREME COURT REPORTS [2012) 8 S.C.R.
A magistrate. We now propose to take a brief look at the violent
crimes committed by the. appellant and his group of terrorists
in Mumbai through Indian eyes. And for that we shall follow the
bloody trails of the appellant and those of the other members
of the terrorist group.
B THE LANt>ING:
98. The inflatable rubber dinghy on which the terrorists
came to Mumbai landed at a place called Badhwar Park. The
dinghy's arrival at that particular place could not possibly be by
C accident or by chance. Badhwar Park was evidently selected
as the landing site for the terrorists with great care and with
consideration of its immense strategic potential for the attack
on their chosen targets. It is also clear that the selection of
Badhwar Park as their landing place was not made by the
D attackers themselves but by someone else among the
conspirators. Th& selection of the landing place for the dinghy
was clearly based on a good deal of reconnaissance and
survey work; and whoever selected the spot for landing had
undoubtedly made himself fully familiar not only with the Mumbai
E shore line but also the city.
99. Badhwar Park is a settlement of fishermen and at that
place the sea comes more deeply into the land mass, forming
a kind of a vesicle. Hence, the water is calm and, this being a
fishermen's colony, a group of young people arriving from the
F sea is not likely to arouse any suspicion or even attract much
attention. Further, the place abutts a main road. A sandy slope
from the water, not more than ten (10) metres in length, takes
one to the road where taxis are readily available. The CST
railway station is at distance of 3.5 kms from Badhwar Park
G and by a taxi it takes fifteen to twenty (15-20) minutes to reach
there. The Taj Hotel is at distance of 1 km and Leopold Cafe
nine hundred (900) metres. Nariman House, to which the two
(2) terrorist went walking, is at a distance of 0.5 km. Nariman
Point, where the last pair took the dinghy by sea after the other
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 385
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
eight had alighted at Badhwar Park, is 0.55 nautical miles (1 A
km) from there; and from the point where the last pair got off
the dinghy, Oberoi Hotel and Trident Hotel are at a distance of
three hundred (300) metres. The last pair walked to these ;
hotels.
B
100. Kasab had said to the magistrate that on getting
down from the boat they had come across two persons. They
had enquired about them and even while Abu Ismail tried to
rebuff them Kasab told them that they were students. One of
these two men that Kasab met was Bharat Dattatray Tamore
(PW-28). He lived in the Fisherman Colony, Cuffe Parade. He C
was a permanent employee of Hotel Taj Mahal, Colaba, where
he worked as Mukhadam. He lived in Chawl no.2 which was
situated very close to the sea shore at about fifteen (15) minutes
walking distance from the Taj Hotel. He deposed before the
court that since his Chawl was very close to the shore, for going D
anywhere he had to go along the shore quite close to the water. -
On November 26, 2008, he left his house at about 9.15 PM for
the hotel, where his duties commenced at 10.00 PM and ended
the following morning at 7.00 AM. On the way to the hotel he
saw an inflatable boat on the shore. In the boat there were ten E
(10) people who were in the age group of twenty to twenty five
(20-25) years. He saw eight out of them alighting from the boat.
Each of them was carrying a sack and a hand-bag. Two of
them proceeded towards the main road ahead of the others.
They appeared strangers to the place and he asked them where F
they came from. One of them said they were students while the
other responded by roughly asking in reply as to how he was
concerned about them. He added that the two persons who had
not alighted took the boat towards Nariman Point. He returned
to his home next morning at about seven (7:00 AM). On way G
he came across four (4) policemen near the Badhwar Park
Railway Officers' Colony who were talking about the inflatable
boat. He then told them what he had witnessed the previous
evening. He later identified the appellant in the test identification
parade held on December 28, 2008. He also identified the H
386 SUPREME COURT REPORTS [2012] 8 S.C.R.
A dead body of the other person at the mortuary of J.J. Hospital.
He also identified the appellant while deposing in court, as one
of the persons who had alighted from the boat.
101. There is another person called Prashant Hemnath
B Dhanu (PW-29) who lived in the fishermen's colony. He was
twenty-four (24) years old and a fisherman by profession. He
stated before the court that he had a fishing boat and on
November 26, 2008, at about 9.15 PM he, along with a few
relatives, had gone out to sea on his boat to fish. On nearing
Nariman Point around 9.45 PM they saw a seemingly
C abandoned rubber boat. There were some life jackets in the
boat and it was fitted with a Yamaha engine. Buffeted by the
sea waves, it was bouncing against the tetrapod. Lest the owner
of the boat might suffer its loss they towed it to their fishing
trawler and brought it to the jetty near the fishermen's colony at
D Badhwar Park (that is, to the point where it had first landed!).
He informed the coast guard about the abandoned boat found
by him. He further said that the police had arrived there and
they took charge of the boat under a Panchnama. We shall deal
with the seizure of the boat by the police and the articles found
E in it in due course. Suffice here to note that the rubber boat
(Article 156) was shown to the witness in court and he duly
identified it as the one that he had found abandoned at Nariman
Point and had towed back to the Fishermen's Colony, Badhwar
Park. He also indicated the yellow strip of paint on the black
F body of the boat, on the basis of which he was able to identify
it.
102. From Badhwar Park the appellant, Kasab, and his
accomplice, Abu Ismail, took a taxi and proceeded to CST.
G Kasab told the magistrate that he occupied the back seat of
the taxi and, on the way to CST, had put the ROX bomb under
the driver's seat, setting the time of blast for after an hour and
fifteen minutes. We shall see the fate of the taxi, its driver and
the passenger, who occupied it after Kasab and Abu Ismail,.
H presently under the marginal heading "The Vile Parle Blast".
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 387
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
But, for the present, the appellant and his 'buddy' are on a spree A
of mass killings at CST.
Slaughter at CST: Fifty two (52) dead and One hundred
and nine (109) injured:
103. In regard to the CST episode, like all other parts of B
the case, the prosecution has gathered a very large amount of
evidence: ocular, forensic and of other kinds, e.g., CCTV
recordings 4 • They have documented practically every action
and movement of the two killers from the point when Abu Ismail
threw the first hand grenade5 at the passengers on the platform c
till they went out of CST through the foot-overbridge on the side
of platform no.1 of the local lines (and thereafter. ... ). On the
basis of the ocular evidence alone (not taking into account for
the moment the other evidences) the prosecution has presented
before the court a vivid and photogrc;phic (figuratively and D
actually) account of the CST events. Here we propose to
examine in slightly greater detail four witnesses whose
evidence, in one way or another, has some special features,
and then to take an overview of some more witnesses to
E
4. To reconstruct the events at the CST the prosecution has examined fifty-
three (53) witnesses. Leaving aside the forensic experts and other
witnesses of a formal nature such as panch witness, the number of eye-
witnesses who gave ocular accounts of the events is not less than twenty-
five (25). Out of these, ten (10) are policemen and members of Railway F
Protection Force (RPF) and Home Guard; among them three (3) are injured
witnesses. Of the remaining fifteen(15), nine (9) are passengers, of whom
eight (8) are injured witnesses. Of the remaining six (6), four (4) are railway
employees, of whom two (2) are injured. The remaining two (2) are
photographers from the Times of India, one of the prime English dailies of
the Country.
5. According to the appellant's confessional statement before the magistrate, G
before lobbing the hand grand at the crowd of passengers, Abu Ismail had
placed the bag containing the ROX bomb, with the timer set for blast, among
the passengers' luggage. Fortunately, however, the bomb failed to explode.
The bomb along with the bag was later seized after it was diffused by the
bomb disposal squad, but that forms part of the forensic evidence to which
we will advert in due course. H
388 SUPREME COURT REPORTS [2012] 8 S.C.R.
A construct a broad picture ot tne massacre at CST.
104. Before proceeding to examine the witnesses it may
be appropriate to say a word about the way most of the
witnesses identified the appellant. The appellant, Kasab, and
his accomplice, Abu Ismail, seemed to make an odd pair in
8
that Abu Ismail was quite tall, about six (6) feet in height, and
Kasab is barely over five (5) feet. The difference in their height
appears to have struck almost anyone who saw them together.
Although different witnesses described them by their complexion
C (both Abu Ismail and Kasab are described as fair), age (Abu
Ismail is said to be between 22 and 25 years and Kasab
between 22 and 24 years), built of body (Abu Ismail as medium
built, Kasab as strongly built), their apparel and the bags they
were carrying, almost everyone referred to their heights, calling
Abu Ismail as "the taller" and Kasab as "the shorter'' one. Many
D witnesses called them "lamboo" (tall) and "butka" or "tingu"
(short).
105. Now the witnesses:
Bharat Ramchandra Bhosale (PW-49) is the Informant in
E connection with the offences committed at CST. At the time of
the assault on CST he was an Assistant Inspector of Police
attached to the CST Railway Police Station. The police station
is situated within the premises of CST in the passage between
the main hall of local lines and the main hall of main lines. On
F the night of November 26 and 27, he was on duty at the police
station and he reported for duty at 20.30 hours. At about 21.50
hours, while he was coming out of the PS, he heard the sound
of firing from the main hall of the main line railway station. The
main hall is at a distance of about fifty to sixty (50 - 60) feet
G from the PS. He proceeded to the main hall from the side of
the taxi stand (north). Police Inspector Shashank Shinde (one
of the policemen killed in the attack), who was also on duty at
that time, proceeded to the hall from the side of the SBI ATM
(south). On coming to the main hall he saw the two terrorists
H indiscriminately firing from AK-47 rifles at the passengers sitting
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 389
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J ]
in the main hall. Many people were lying injured in pools of A
blood; many of them were crying. Those who were still on their
legs were trying to flee the main hall. Bhosale said that he first
saw the two terrorists when they were firing from a spot near
the public toilet. He described the location of the public toilet
and went on to say that when he first saw the two terrorists they B
were in the main hall at a distance of about forty (40) feet. There
was sufficient light in the main hall for him to see them.
106. Bhosa/e then proceeded to give a description of the
two terrorists. He said that one of them was short, aged about c
twenty-two to twenty-four (22-24) years with long hair that came
down to his neck; he had a fair complexion and was strongly
built. He was wearing a blue T-shirt and was carrying a rexine
bag. He was holding an AK-47 rifle. The other terrorist was
taller than the first one. He was also fair and of medium built.
0
He was aged about twenty-two t<? twenty-five (22-25) years. He
was wearing a black T-shirt and he too was carrying a rexine
bag. He was also carrying an AK-47 rifle.
107. At this point, the witness paused in his narration to
identify the appellant as one of the two terrorists who was E
described by him as short, strong built and who was wearing
a blue T-shirt.
108. The witness was then shown the identity card
recovered from Abu Ismail (Article 61 )6 • He identified the F
photograph as that of the other terrorist, the accomplice of the
appellant.
109. The witness proceeded with his narration and said
that he rushed back to the police station to ask for additional
force. As he came near the entrance door of the police station G
he was fired at by the terrorists. One of the bullets pierced
through his right upper arm and struck the wall near the table
6. The fake identity card with Hindu name given to each member of the group
of terrrorists by Abu Kala before leaving for Mumbai. H
390 SUPREME COURT REPORTS [2012] 8 S.C.R.
A of the police station's House Officer. He intimated the railway
police helpline about the assault by the terrorists and asked for
additional force 7 . He also intimated the Commissioner of
Police, Railways, on his walkie-talkie.
B 110. He then came back to the main hall accompanied by
Police Constable Nalawade who had a carbine with him. He
saw Police Inspector Shinde lying injured near the SBI, ATM.
Also lying injured in the main hall were about one hundred to
one hundred and twenty-five (100-125) passengers.
C 111. By the time he came back to the main hall of the main
lines, the two terrorists had moved in the direction of the main
hall of the local railway station. Constable Nalawade fired three
rounds towards them from his carbine. Constable Nardele
(PW-58) also fired eight rounds at them from the main hall of
D the main lines while the terrorists were in the main hall of the
local lines. The appellant and his associate were, however, not
hit and they continued to proceed towards platform No. 1 of the
local lines. By then, the additional police force had come and
the public had also come to their help. The injured persons were
E being taken to hospitals. The witness himself was admitted to
St. George's Hospital for treatment of the firearm injury in his
right upper arm.
112. He later came to learn that Police Inspector Shinde
and MN Chaudhary of the RPF were also among those who
F were killed as a result of the firing by the two terrorists. He also
learnt that the appellant and his associate had also used hand-
grenades at the railway station.
113. His statement was recorded at the hospital and on
G that basis a formal FIR was drawn up in regard to the CST
episode. He identified his statement (Ext. no. 219) and the
formal FIR (Ext. no. 220).
114. He further told the court that he had earlier identified
H 7. Independently established through mobile phone call records.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 391
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
the appellant in the test identification parade held at Arthur A
Road Prison on December 28, 2008.
115. In reply to a court question, Bhosa/e said that though
he was carrying a 9mm pistol, loaded with nine rounds, he did
not fire at the terrorists because there was a strong risk of the
B
passengers getting killed or injured by his firing.
116. Vishnu Dattaram Zende (PW-65) is the railway
announcer. His job is to make announcements of the arrival and
departure of trains on a public address system. For that
purpose he sits with his colleagues in a cabin on the mezzanine C
floor, almost at the centre of the main hall of the local lines,
facing the full expanse of the main hall and beyond it up to
platforms 1 to 7 of the local lines. Perched in his office Zende
had a completely unobstructed view through the glass screen
of his cabin and he was able to see all that happening down D
below in the main hall and the local lines' platforms on the fateful
evening of November 26, 2008. Here it must also be noted that
showing great devotion to duty and remarkable presence of
mind Zende saved countless people from death or injury by
constantly announcing on the public address system that the E
railway station was under terrorist assault and by advising
passengers alighting from local trains that continued to arrive
at the station while the attack was underway to not go towards
the main hall but to exit through the rear side of the local lines'
platforms. F
117. Deposing before the court, he began with a succinct
description of CST from inside. He then proceeded to tell the
court that on November 26, 2008, he was on duty from 3.00
PM to 11.00 PM. At about 9.55 PM he heard a big explosion.
He guessed that it was a bomb and looked outside the window G
of his cabin. He saw passengers from the main line hall running
towards the local lines. Among them some were bleeding.
Some were trying to rescue others who were unable to flee or
move on account of injuries.
H
392 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 118. He further stated before the court that he saw two
terrorists coming from the direction of platform no. 7. He could
see one. of them from a distance of 15 to 20 feet as he came
near the entry gate of platform no. 4. The other was following
him. Both were firing. At that point he suspended his
B announcements because the terrorists, from where they were
at that time, could see him and fire at him. He then saw the
shorter of the two terrorists sit down on the floor of the main
hall, load his gun with a magazine, throw his bag in the hall and
resume firing.
c 119. Zende added that, to avoid being shot at by the
terrorists, he and his colleagues sat down on the floor of their
cabin. Nonetheless, shots were fired in the direction of their
cabin and one of the bullets smashed the glass pane and went
right through, piercing the plywood partition at the back of the
D cabin. They continued sitting on the floor for about an hour and
a half. All the while they were in contact with their officers on
the telephone.
120. He then gave a description of the two terrorists and
E identified Kasab as the person who loaded his rifle sitting down
on the floor of the main hall and who threw away his bag. He
was then shown the identity card, Article 61. He identified the
photograph as that of the taller terrorist who was accompanying
the appellant. He was shown a black haversack, Article 219.
F He identified it as the bag that the appellant had thrown away
in the main hall of the local lines.
121. While dealing with the CST episode we must take
note of two other witnesses. Their evidence is extraordinary in
that they did not only witness the incidents but also made a
G visual record of the events by taking pictures of the two killers
in action and also of their victims. The pictures taken by these
two witnesses, without anything else, are sufficient to conclude
the issue of identification of Kasab and Abu Ismail (deceased
accused no.1) as the killers of CST. Both the witnesses are
H professional photographers working with the Times of India
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 393
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
group. Both of them, caring little for their own safety and A
displaying exemplary professionalism, followed the killers
practically at their heels. Their ocular testimony together with
the photographs taken by them provides a graphic picture of
the carnage at CST.
8
122. Sabastian Barna/ D'Souza (PW-61) is one of the two
photographer witnesses. He stated before the court that on the
evening of November 26, 2008, he was in his office on the fourth
floor of the Times of India Building, which stands opposite the
CST railway station. The main gate of the Times of India
Building faces platform no.1 of the local railway station and one C
gate of CST railway station opens in front of the Times of India
Building. At about 9.50 PM he came to know from one of his
colleagues that a gunman had entered Taj Hotel and was firing
there randomly. On this information, two photographers
immediately proceeded to the Taj Hotel. D'Souza and his D
colleague also came out of the office. As they came out of the
main gate of the building, they heard the sound of firing at CST
railway station. D'Souza jumped over the road divider and
entered platform no.1 of the local railway station, carrying a
Nikon digital camera. The railway station was deserted and E
there were no passengers on the platforms. A local train was
standing on platform no.1. He crossed through the train and
reached platform no.2. There were no trains on platforms no. 2
and 3. He proceeded to the main hall of the local railway station
and walked up to the exit of platform no.6 in the main hall. There F
he found one policeman in uniform and another person
accompanying him in plain clothes. They were looking towards
the passage between the main line and the local line. It was at
this point that he saw, at a distance of about one hundred (100)
feet, in the passage between the main lines and the local lines, G
two persons who were firing from guns held by them. They were
near the booking window of local railway line in front of CST
police station while he himself was at the exit of platform no.6
of the local line. At this juncture, one of the policemen 8 fired at
8. As we shall see presently this was Assistant Sub-Inspector Sudama Aba H
Pandarkar (PW-62)
394 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the two gunmen.
123. At a nearby book-stall, the owner started to pull down
the shutter and, as he was doing so, he was hit by a bullet and
fell down. D'Souza took a picture of the fallen book-stall owner.
B 124. D'Souza then described the two gunmen and the way
they were dressed. He identified the appellant in the dock as
the shorter of the two gunmen. He added that both were carrying
guns.
c 125. He further said to the court that he wanted to take
photographs of the gunmen and, therefore, he entered one of
the compartments of the train standing on platform no.6. The
policeman in uniform and the other person accompanying him
in plain clothes were still there. He thought the man in plain
0 clothes was also a policeman. He saw the plainclothesman 9
taking the gun from the policeman in uniform and taking position
to fire at the appellant and his companion. He took pictures of
the policeman in uniform and the plainclothesman. He asked
the two policemen to enter the train compartment because he
E thought they had taken a position that was quite dangerous.
126. He further said that since the gunmen were coming
towards the local lines, he went to platform no.4. He told the
court that during the course of the incident he took over one
hundred (100) photographs but most of them were blurred. He
F was not using the flash-gun and the light was not good for taking
photographs. In course of the deposition he was shown the
photographs taken by him and he identified those photographs.
127. The photograph showing the book-stall owner felled
G by a bullet was marked Ext. no. 238. A set of three photographs
showing the policeman in uniform and the plainclothesman
taking aim with the rifle was marked collectively as Ext. no. 239.
A set of three photographs of the appellant taken by D'Souza
9. As well shall see presently this was Police Constable Ambadas Pawar
H (one of the policemen failing down to the terrorists bullets).
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 395
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
from behind a pillar was collectively marked Ext. no. 240 10 • A A
set of four photographs in which Kasab is shown with the other
gunman Abu Ismail (deceased accused no.1) was marked
collectively as Ext. no. 241. A photograph showing two persons
lying dead or injured was marked Ext. no. 242 11 . A set of 10
photographs taken by him after the gunmen had gone over to B
platform no.1 of the local lines, showing dead or wounded
passengers lying in the main hall of the main lines, was
collectively marked as Ext. no. 243.
128. He told the court that pictures taken by him were
saved in the memory card of his camera. He had prepared a C
CD of the photographs from the memory card, to produce in
court. The print-outs were taken from the CD. He produced the
memory card before the court (which the court, after it was
marked as Article 216, directed to be returned to the witness
for safe custody until further orders). D
129. He said that the CD was produced by him before the
police on January 7, 2009, in presence of panch witnesses and
then it was sealed. The CD was taken out of a sealed packet
(bearing no. 204) and was marked by the court as Article 217. E
130. Significantly, he also said before the court that while
at the station he heard the announcement on the public address
system warning passengers of incoming local trains not to alight
from the train and, in case they had to go out, not to come to
the main hall but to exit through the rear gate.
F
10. All the three pictures clearly show Kasab, carrying a haversack on his back
and an AK-47 in his hands. In the first picture he is shown moving forward,
with the left hand raised and the right had holding the Ak-47 with the barrel
pointing downwards. In the second picture he is raising the gun with the G
right hand and the left hand in coming down towards the gun for providing
support. In the third picture he is stepping forward with both hands holding
AK-47 at waist level in firing position.
11. As we shall see presently these two were Police Inspector Shashank
Shinde and Police Constable Ambadas Pawar (who fell down to the
terrorists' bullets). H
396 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 131. Sriram Ramakant Vernekar (PW-102), the other
photographer witness, works as a press photographer with the
Times of India. He stated before the court that on November
26, 2008, he-was in the office at the Times of India Building,
opposite CST railway station. At about 10.00 PM, on hearing
B the sound of firing, he picked up his camera and rushed towards
CST station. He approached the station from the subway gate.
He saw two persons firing in the directions of the railway office
and booking office. He took pictures of the two gunmen from
near the entrance to the main hall from the subway porch. As
c they were moving in his direction, he got out of the station and,
crossing the road divider, came on the side of the Times of
India Building.
132. He told the court that he had seen the two gunmen in
front of platform no.6 when he took their first photograph. He
D produced before the court four enlarged print-outs of the
photographs taken by him which were collectively marked, for
the purpose of identification only, as Ext. no. 410.
133. He also produced the original memory card of his
E Nikon 0200 camera containing more than ten (10) pictures
taken by him with that camera. The memory card was marked,
for the purpose of identification, as Ext. no. 411. The witness
explained that the three photographs bearing Ext. no. 410-A.
Ext. no. 410-B and Ext. no. 41 O-C 12 were the first photographs
F of the two gunmen taken by him.
He further stated before the court that one of them lobbed
a hand grenade while they were proceeding irom the main hall
12. Ext. nos. 410-A, 410-B and 410-C are pictures taken when Kasab and Abu
G Ismail were at CST. All the three pictures appear to be taken from the front.
In the picutres they appear behind what appears to be the frames of a set
of two metal detectors. In Ext. No. 410-A Kasab and Abu Ismail are standing
about three ft. apart peering ahead; in Ext. No. 410-B they appear standing
close together in the frame of the metal detector looking ahead. In Ext. No.
410-A. C Abu Ismail is hidden behind a pillar but Kasab is clearly shown
H carrying a haversack on his back and an AK-47 in both hands.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 397
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
to platform no.1. The hand grenade was thrown on ON Road A
in front of MCGM building. He went on to say that he saw the
two gunmen going from platform no.1 to the foot-overbridge.
Both of them were carrying bags on their shoulders. He was in
front of the Times of India Building at that time. Both of them
were firing towards the Times of India Building from the foot- B
overbridge. They were Jobbing hand grenades also. He wanted
to take their photographs and, therefore, he went to the second
floor of the Times of India Building from where the foot-over
bridge is clearly visible. He took about three to four (3-4)
photographs from there. Since the quality of photographs was c
not satisfactory, he took another photograph by using flash. As
a result, the shorter man, who was moving in front, got alerted
and he fired three to four (3-4) rounds at the Times of India
Building. The witness identified the fourth photograph (Ext. no.
410-0 13 ) as the photograph taken by him by using flash. He
0
further said that the photograph was taken when the shorter
fellow was getting down from the overbridge towards Badruddin
Tayabji Road.
134. Vernekar then identified the appellant as "the shorter
fellow". He also identified the appellant's partner from the E
photograph in the Identity Card Article 61.
135. Among the rest of the CST witnesses we shall take
a brief look first at some of the policemen and then at some of
the passenger witnesses. F
136. Jilu Baddu Yadav (PW-54 ), Mammath Motiral
Nardele (PW-58), Harshad Punju Patil (PW-59), Geetanjali
Krishnarao Gurav (PW-60), Sudama Aba Pandarkar (PW-62),
Pandurang Subrao Patil (PW-63) and Sandeep Tanaji
Khiratkar (PW-66) are policemen or members of the Railway G
Protection Force. At the time of occurrence, they were on duty
13. Ext. no. 410-D clearly shows Kasab coming down from the foot-over-bridge
The picture was taken with a flash and, therefore, it shows Kasab both
startled and angry with the haversack hanging from the shoulde and the
AK-47 held in both hands read" io fire. H
398 SUPREME COURT REPORTS [2012] 8 S.C.R.
A at different places in the vast premises of CST. On hearing the
explosion and the gun shots and on seeing the passengers
fleeing for their lives, they realized that a terrorist attack was
underway at the railway station and proceeded from their
respective stations towards the spot where the assault was
B launched. On the way, some of them came across each other.
A few were lucky to escape unharmed and some survived even
after receiving grave injuries to tell the story before the court;
some others laid down their lives while trying to tackle the
assailants either completely unarmed or carrying antiquated
c weapons that failed them at the most crucial moment.
137. Harshad Punju Patil (PW-59) was a police constable
and on that date he was on patrolling duty in the ladies'
compartment in the local trains. He was carrying a .303 rifle and
ten (10) rounds. When the terrorists' attack took place, he was
D waiting for the train on which he was on duty near the Police
Help Center in the main hall of the local lines, in front of platform
no.3. Soon after the firing started, Police Inspector Shashank
Shinde of the CST Railway Police Station came there and told
them that two terrorists were firing in the main hall of the main
E station. Police constables Nardele and Gavit were also there.
Both of them were carrying carbines. Shashank Shinde
proceeded towards the main line station accompanied by
Nardele and Gavit. Patil started loading the ten (10) rounds in
his rifle. He then saw the two terrorists coming towards the local
F railway station from the main lines' side. Taking cover of the
Police Help Centre he fired one round at them. But the shot
misfired because the cartridge was defective; the bolt was
jammed and he was unable to open it. By that time, the
terrorists had come in front of platform no.3 of the local lines.
G At that point, Jil/u Baddu Yadav (PW-54), a head constable
of the RPF, also arrived there, proceeding from his place of
duty at the General Manager Gate of the CST Railway Station.
He himself was unarmed but he saw Patil carrying a rifle with
him. He saw one of the assailants sitting down on the floor of
H the main hall of the local station and loading his rifle with a
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 399
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
magazine. Yadav asked Patil to fire at the terrorist. He did not A
know that Patif's rifle bolt had jammed and it would not open.
Thinking that Patil was trying to avoid firing at the terrorist,
Yadav took the rifle from him and tried to fire at the terrorist
who was sitting down on the station floor, loading the magazine
into the rifle, but the rifle did not fire as it had locked. Meanwhile, B
the other terrorist also arrived at the spot and they fired in the
direction of Yadav and Patil. He and Patil then took cover
behind a pillar from where he threw one plastic chair towards
the two terrorists. In retaliation they again fired back towards
them while proceeding in the direction of platform no.1 of the C
local railway station.
138. Patil identified the appellant as the one whom he had
described as the shorter of the two terrorists. He identified Abu
Ismail (deceased accused no. 1) from his photograph on the
fake identity card, Article 61. He said before the court that he D
had earlier identified the appellant in the test identification
parade held on January 14, 2009, at Arthur Road Prison.
Yadav identified the appellant as the person who was firing at
him from his AK-47 rifle and at whom he had thrown the plastic
chair. Yadav also identified Abu Ismail from Article 61. E
139. Mammath Motiral Nardele (PW-58) was a police
constable and on that date he was on anti-sabotage duty on
the foot-overbridge at platform no.1, opposite the Times of
India building. He was carrying a carbine with ten (10) rounds.
F
At about 9.45 PM, leaving his two other colleagues on duty, he
came to take his meal at the Police Help Centre situated in
front of platform no.3 of the local railway station. No sooner had
he reached there that he heard the noise of a bomb explosion
and gun shots from the direction of the main hall of the main G
lines and saw passengers running away from there. Shashank
Shinde came there and alerted him saying that terrorists were
firing in the main hall of the main line. Shinde asked Nardele
to accompany him. Nardele started loading the ten (10) rounds
in his carbine but Shinde proceeded towards the main line
H
400 SUPREME COURT REPORTS [2012] 8 S.C.R.
A without waiting for him. Nardele saw Shinde proceeding in the
direction of the main hall of the main line accompanied by ASI
Pandarkar14 , a police constable 15 and a photographer16 • He
went after them and heard the sound of firing on platform no. 7.
He entered a compartment of a local train on platform no.6 and
8 from there he saw two terrorists, each carrying an AK-47 rifle
and a hand-bag on their shoulders, proceeding towards the
local railway station. He fired eight (8) rounds from his carbine
(but the shots did not hit them). They retaliated but he was safe
inside the rail compartment. He again tried to fire, but in the
C meanwhile his carbine was locked. He could not fire from it any
longer. He then went to the armory, got his carbine unlocked
and loaded it with more rounds. But by the time he came back
to the main hall of the local lines, the terrorists had already left
the local railway station.
D 140. Nardele identified the appellant in court as the shorter
of the two terrorists. He also identified the clothes worn by the
two assailants. He also identified Abu Ismail (deceased
accused no.1) from Article 61. He further told the court that he
had earlier identified the appellant in the test identification
E parade held on December 28, 2008, at Arthur Road Prison,
Mumbai. He had also identified the dead body of the deceased
accused no.1 at the mortuary of JJ Hospital on January 6, 2009.
141. Sudama Aba Pandarkar (PW-62) was an Assistant
F Sub-Inspector of police and on November 26, 2008, he was
on patrolling duty on the local trains. He was carrying a .303
rifle and ten (10) rounds. The train on which he was on duty
arrived at CST on platforms no. 4 or 5 at 9.45 PM. He went to
the Police Help Center and made the entry concerning his
patrolling duty. Within a few minutes the explosion took place
G followed by firing, and he saw many passengers running wildly.
14. PW-62, Injured: shown in photograph Ext. No. 245.
15. Ambadas Pawar, killed; shown lying down the with Shashank Shinde in
photograph Ext. No. 242.
H 16. PW-61, D'souza.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 401
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
In the meantime, Shashank Shinde came to the Police Help A
Center. He told them that the railway station was under attack
by terrorists. Shinde asked Pandarkar to load his .303 rifle.
Pandarkar accompanied Shinde towards the main line. He
saw a terrorist who was about 6 feet in height coming from the
side of the taxi stand and firing towards the railway police B
station. At that time he was standing in front of the railway police
station. He fired two rounds at him from his .303 rifle but the
shots did not hit him. At this point, Police Constable Ambadas
Pawar, who was also accompanying Shinde, took the rifle from
Pandarkar and fired one round at the terrorist. At the same time C
Pandarkar saw the other terrorist (the appellant) coming
towards them from the side of platform no.8 (main line). He
was shorter in height than the other terrorist. He was firing from
his AK-47 rifle. Pandarkar, Constable Ambadas Pawar and Pl
Shinde went towards platform no.7 through platform no.6 and D
came near the ATM of Indian Bank. Both the terrorists started
firing at them from AK-47 rifles. One of the bullets pierced
through Pandarkar's left chest and exited from the back. He fell
down as a result of the bullet injury. Shashank Shinde and
Ambadas Pawar too were hit by the terrorists' shots and E
unfortunately they were not as lucky as Pandarkar. They
succumbed to their injuries.
142. In the course of his deposition Pandarkarwas shown
the three (3) photographs collectively marked Ext. no. 239. He
F
identified himself and the slain Constable Ambadas Pawar in
those photographs. In the photograph Ext. no. 242, he identified
Shashank Shinde and Ambadas Pawar lying prone after being
shot by the terrorists. In one of the photographs from Ext. no.
243 (collectively) he identified himself and Lau Kharat (PW-57),
who worked at the railway station, who is holding him by the G
arm after he was shot and helping him to be taken to St.
George's Hospital. This particular photograph from Ext. no. 243
(collectively) was separately marked Ext. no. 245.
143. Pandarkar identified the appellant as the shorter of H
402 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the two terrorists. He identified Abu Ismail from his photograph
on Article 61. He had earlier identified the appellant in the test
identification parade held on January 14, 2009.
144. Sandeep Tanaji Khiratkar (PW-66) was an Inspector
B in the Railway Protection Force. At the time of the occurrence
he was at his residence and was informed about the attack by
Jadhav (PW-54) by telephone. He rushed to the police station
on his motor-cycle and arrived there in five to seven (5-7)
minutes. He went to the RPF armory on the ground floor of the
C General Manager Office building and took out a .303 rifle and
twenty (20) rounds from the armory. He came out of the station
from the GM Porch abutting DN Road. SI Bhosale (PW-68) and
Inspector Kshirsagar were with him. They took position in the
GM Porch. At that time they saw two terrorists coming towards
the porch situated near the subway. Both the terrorists fired at
D them. They also retaliated and fired back at the terrorists. The
firing by Khiratkar and his men forced the terrorists to re-enter
the railway station and move in the opposite direction towards
platform no. 1 from where they went out of the railway station
through the foot-overbridge. When Khiratkar and his men
E reached near the gate of the foot-overbridge they were
informed that the terrorists had already left the railway station.
Khiratkar then went to the control room of the CCTV cameras
in the RPF office. There he found that on that date the CCTV
cameras of the main lines were shut down for maintenance but
F the movements of Kasab and Abu Ismail were recorded by the
CCTV cameras in the main hall and platform no.1 of the local
lines. At about 11.30 PM on the same day, he was informed
by Constable Jadhav that the movements of the terrorists had
been recorded on the Data Visual Recorder. Immediately
G thereafter he prepared from the DVR a CD of the visuals
captured by CCTV cameras of the main hall and other places
wherever the movements of the terrorists had been seen. The
CD was sealed by him immediately and it was later handed
over to an officer of DCB CID, Mumbai. He further stated
H before the court that the recording on the DVR is stored for a
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 403
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.)
period of seven days. At the end of the seventh day the first A
day's recording would get deleted to make space for the
recording of the eighth day.
145. Khiratkar identified the appellant as the shorter of the
two terrorists. He identified Abu Ismail (deceased accused B
no.1) from his photograph on Article 61. He had earlier
identified the appellant in the test identification parade held on
December 28, 2008, at Arthur Road prison, Mumbai.
146. Pandurang Subrao Patil (PW-63) was an Assistant
Sub-Inspector of Police on duty carrying a lathi. He told the court C
that he was fired at by the shorter terrorist (i.e., the appellant).
The bullet hit his left thigh and, passing through it, pierced his
right thigh and exited from the exterior portion of his right thigh.
He simply collapsed on to the floor. He further said that he had
seen the two terrorists from a distance of twenty-two to twenty- D
five (22 to 25) feet.
147. Patil identified the appellant as the shorter of the two
terrorists. He also identified Abu Ismail, (deceased accused
no.1) from his photograph on Article 61.
E
148. Geetanjali Krishnarao Gurav (PW-60) was on duty
at the CST local railway station near main gate no. 3. On
hearing the explosion and the gun shots she along with Shinde
(killed), API Bhosa/e (PW-49), PSI Khandale and other
policemen went towards the main hall of the main lines. She F
saw two terrorists in the main hall and she saw the taller of the
two throwing a hand grenade at a crowd of passengers. The
grenade exploded, causing injuries to a large number of
passengers. Both terrorists were continuously firing from AK-
47 rifles. She and Bhosale, therefore, proceeded towards the G
railway police station to call for additional force. While on way
to the police station, Bhosale was hit by a bullet in his left upper
arm and he fell down. She tied a handkerchief to his wound and
helped him )n getting back on his feet. At that time, she saw
both the terrorists proceeding in the direction of the local railway H
404 SUPREME COURT REPORTS [2012] 8 S.C.R.
A station. More than hundred (100) passengers lay badly injured
in the main hall of the main lines.
149. Geetanjali Gurav identified the appellant as the
shorter of the two terrorists. She also identified Abu Ismail
(deceased accused no.1) from his photograph on Article 61.
8
150. Now, some of the passengers:
Natwarlal Gigaji Rotawan (PW-50) and his daughter
Devika Natwarlal Rotawan, aged about ten (10) years, (PW-
C 51 }; 17 Farooqi Nasiruddin Khaliluddin (PW-52); Nafisa
Shadab Qureshi (PW-53); Sangeeta Niranjan Sardar(PW-86)
and her husband Niranjan Sadashiv Sardar (PW-87); and
Ansar Alabaksha Mohd. Hanif Saudagar (PW-88), are some
of the passenger witnesses. They were in the main hall of the
0 main lines waiting for their respective trains. They were jolted
out of whatever they might be doing or thinking at that moment
by the explosion of the first grenade thrown by Abu Ismail
(deceased accused no.1) and from that moment they watched,
in abject horror, the appellant and his companion firing
E indiscriminately at the group of passengers in the main hall; Abu
Ismail throwing the second grenade and then the two moving
around on the platforms in different directions until the spray of
bullets and the shrapnel from the exploding grenades hit them
or one of their group.
F 151. Natwarial Rotawan (PW-50) was lucky to escape
unhurt but his daughter, Devika Rotawan (PW-51), was hit by
a bullet on her right leg. She was treated as an indoor patient
in the hospital for about a month and a half and thereafter
G 17. Though Devika was not examined by the police earlier and she was only
a child aged 1O years, on an application made by prosecution the trial court
by order dated June 10, 2009 allowed her to be examined as one of the
prosecution witnesses under oath after being satisfied that she was
capable of understanding the meaning of oath. We feel that the trial court
was quite justified in examining Devika as one of the witnesses of the
occurrence.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 405
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J]
remained bedridden for four to six (4-6) months. When she A
came to depose in court after about 6 months of the
occurrence, she was still unable to walk properly.
152. Natwarlal identified the appellant as the "shorter one"
and said that his companion was not present in court. Devika
8
identified the appellant as the person who was firing at the VT
railway station.
153. Farooqi Nasiruddin Khaliluddin (PW-52) was at the
station with his son. Both of them were injured, the son far more
badly than the father, by the splinters from the second grenade c
thrown by Abu Ismail (deceased accused no. 1). Khaliluddin
told the court that the firing by the terrorists continued for about
fifteen to twenty (15-20) minutes. He further said that the taller
man had paused in the firing as he took out'a bomb from his
bag and threw it in their direction but that the other man (that D
is, the appellant) continued with the firing and he appeared to
be in a "joyous mood" on seeing the lethal effect of his firing.
Identifying the appellant in court, he once again said that he was
the same person whom he had seen in "joyous mood".
154. Nafisa Qureshi (PW-53), who worked as a maid- E
servant, lost her six (6) ~ar old daughter Afrin to the terrorists'
bullets. She was hit by a bullet on the back and died at the spot.
Nafisa herself sustained a bullet injury on her left leg.
155. She identified the appellant as one of the two persons F
who were firing at CST in all directions. The appellant was the
person whom she had, earlier in her deposition, referred to as
the "shorter one".
156. Sangeeta Sardar(PW-86) and her husband Niranjan
Sadashiv Sardar (PW-87) also sustained injuries as a result G
of the firing and throwing of grenades. Sangeeta was hit by
steel balls (from the hand grenade) that pierced her body, and
some of which were still lodged inside her body as she
deposed. Her husband, Niranjan, sustained two (2) bullet
injuries, one on the right side of the head and the other below H
406 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the right ear. Both of them remained indoor patients in the
hospital for weeks.
157. Sangeeta identified the appellant as the "butka" who
was firing at the CST railway station. She identified the "lamboo
B fellow" from his photograph on the identity card Article 61.
158. Ansar Alabaksha Mohd. Hanif Saudagar (PW-88)
was hit by a bullet on his right leg, below the knee joint. In court,
Saudagarwas asked to identify the appellant from among the
three (3) accused in the dock. He identified the appellant as
C the "butka" firing at the passengers at the CST railway station.
He also identified the person who was accompanying the
appellant from the photograph on Article 61.
Cama ln 18 : Seven (7) dead and ten (10) injured 19
D 159. Kasab and Abu Ismail were seen exiting CST via the
foot-overbridge and coming down the bridge in the evidence
of Vemekar (PW-102) and in the photograph of Kasab (Ext.
no. 410-D) taken by him. On descending from the foot-
overbridge, they came to Badruddin Tayabji Marg, which is a
E long, meandering road, a part of which runs along the premises
of Cama Hospital. Cama Hospital has large premises, on
which there are a number of buildings including a six-storey
structure called the New Hospital Building. The entry to Cama
Hospital is from Mahapalika Road on its western side, and
F Badruddin Tayabji Marg runs along the back of its premises.
The prosecution, with the aid of eleven (11) eye-witnesses, has
18. For this part of the case the prosecution examined thiry-two (32) witnesses.
Leaving aside the doctors, forensic experts and other witnesses of a formal
nature, such as panch witnesses, the number of eye witnesses who gave
G an ocular accout of the events is not less than eleven (11). Of the eleven
(11), two are policemen both of whom received injuries at the hands of
Kasab and Abu Ismail, five (5) are from the public of whom one (1) is
injured, and four (4) are hospital staff of whom two (2) are injured.
19. The number relates to the persons Killed a~d injured by Kasab and Abu
Ismail both in the before they entered Cama hospital and inside the
H hospital.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 407
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
traced practically every step taken by Kasab and Abu Ismail A
from the moment they came out of CST, entered Cama hospital
and eventually left the hospital. We, however, propose to
examine only some of these steps, to get a broad idea of how
the two were moving around killing people, completely
mindlessly. B
160. Bharat Budhabhai Waghela (PW-103) worked as a
Safai Kamgar with Valtas. He lived in a hut off Badruddin
Tayabji Marg. At about 9.30 PM on November 26, 2008, he
was sitting near the back gate of Cama Hospital on Badruddin
Tayabji Marg engaged in small talk with his friends Sandeep C
Waghe/a (PW-105), who lived on the premises of Cama
Hospital, and Bhagan Shinde, who lived in the same hutments
as Waghela. Gupta bhel-vendor was also near the gate selling
snacks of bhel-puri. At about 10.30 PM they saw two persons
coming on to Badruddin Tayabji Road from the direction of the D
Times of India Building. One of them was 'lamboo' (tall) and
the other was 'butka' (short). Both were carrying bags on their
shoulders. Suddenly, they started firing. The butka man fired
straight at them, and he shot Gupta bhelwala in full view of
Waghela. Waghela was frightened and ran towards his hut. His E
friends also ran away from the spot. Back in his hut, Waghela
told his mother about the incident. He shut the doors of his hut
and peeped out from the little gap between the frame of the
door and the panels. He saw the butka fellow standing near his
brother's shanty, adjoining Waghela's own hut, and firing at it. F
He heard his brother cry out. He saw the /amboo fellow firing
in the lane. After some time, he saw both of them going towards
the gate of Cama Hospital.
161. After a while, Waghela went to his brother, Thakur G
Waghela's shanty. He found his brother lying in a pool of blood.
His five (5) year old son was also there but his wife was not
present. Waghela took his brother to the GT Hospital where
he was declared dead by the doctors. Five minutes later,
H
408 SUPREME COURT REPORTS [2012] 8 S.C.R.
A Bhagan Shinde was brought to the hospital. He was also
declared dead.
162. Waghela identified the appellant as the gunman who
had shot Gupta bhelwala and fired at his brother's shanty. He
said before the court that he had identified the accused in the
8
test identification parade on December 27, 2008. He had also
identified the dead body of the "lamboo" when it was placed
among six (6) other dead bodies at the mortuary of JJ Hospital.
He then identified him from the photograph on the identity card,
Article 61.
c
163. Anjali Vijay Kulathe (PW-101) worked as a staff
nurse at Cama Hospital. On November 26, 2008, she arrived
for duty at 8.00 PM. She was on duty on the first floor of the
New Building. At about 10.30 PM she heard the sound of firing
D from the back of the hospital. She looked out from the back
window of the ante-natal care unit and saw two persons
climbing over the steel gate at the back of the hospital. One of
them was 'lamboo' (tall) and the other was 'butka' (short). She
could see them clearly in the light from the street lights. She
E further said that the gate was at the distance of ten to fifteen
(10-15) feet from the window from where she saw the intruders.
164. The two men jumped inside the Cama Hospital
premises. The tall man fired towards the window from where
she was looking at them. One of the bullets hit the right wrist of
F a hospital servant, Hira Jadhav. She was immediately removed
to the casualty ward on the ground floor of the hospital. Ku/athe
further said that she informed the CMO on duty, Dr. Archana,
that two terrorists had entered the hospital building. She then
rushed back to her ward and closed all the doors from inside.
G She also locked the ward's collapsible (iron grill) gate.
Moreover, since the ward had windows on all sides, all twenty
(20) patients who were in the ANC ward at that time were
moved to the pantry for their safety.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 409
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
165. She further stated before the court that the noise of A
firing and explosions went on for about two hours. She and all
the patients were frightened due to the continuous noise of
explosions and firing. She and the patients stayed inside the
pantry till 4.00 AM the following morning, when senior officers
came and took them out. B
166. She then identified the appellant as the butka man
who, along with his tall partner, had entered the Cama Hospital
premises by jumping over its back gate. She identified the tall
partner of the appellant from the photograph on the identity
card, Article 61. She further told the court that she had identified C
the appellant in the test identification parade on December 27,
2008, held by "judge" (sic) Sharad Vichare. She further said
that, on being identified by her, the appellant had said that
he was in fact Ajmal Kasab and she had correctly identified
h~. D
167. Raosaheb Changdev Funde (PW-107) is an ex-
serviceman and he worked as an unarmed security guard at
Cama Hospital. On November 26, 2008, his shift ended at
10.00 PM but he learnt that some incidents had taken place at E
CST and, therefore, decided not to go home but to stay back
for the night at the hospital. He stated before the court that, on
learning about the CST incidents, he returned to Cama
Hospital's main (front) gate, near the collapsible gate. Another
security guard, Baban Ugade, was also there. As Funde was F
standing with Ugade near the collapsible gate, he saw the
appellant and one other person coming towards them. The
appellant fired a shot at Ugade from his rifle. The shot hit
Ugade in the abdomen and he fell down. Funde was scared
and ran up the stairs to the fifth floor, where he took shelter in G
a ward, hiding behind a stand which is used for drying clothes.
The appellant, however, followed him there and, putting the
barrel of his rifle on his head, ordered him, "Utho" (get-up). The
appellant then asked Funde to proceed towards the bathroom.
Funde saw one person lying in a pool of blood in front of the H
410 SUPREME COURT REPORTS [2012] 8 S.C.R.
A bathroom with a tall man standing near him. The appellant made
him enter the bathroom where three (3) persons were already
confined 20 . The bathroom was then bolted from outside. After
two to three (2 or 3) hours, the police arrived there and opened
the bathroom. Funde narrated the incident to the police.
B
168. Funde then identified the appellant's partner from the
photograph on the identity card, Article 61. He further told the
court the he had identified the appellant at the test identification
parade on December 27, 2008. He had also identified the dead
c body of the appellant's partner on January 7, 2009, at JJ
Hospital.
169. Harishchandra Sonu Shrivardhankar (PW-106) was
the person whom Funde had seen lying in a pool of blood near
the door of the bathroom. His encounter with the two terrorists
D has something uncanny about it. Fate seemed to force his every
step towards meeting the terrorists and when he actually stood
face-to-face with them, quite certain of death, he did not go
down without fighting. Tough, two and a half times the age of
his opponents, completely unarmed and untrained in any kind
E of fighting, he put up a fight nonetheless. Unfortunately, his
attempt could not succeed against an armed and trained killer.
He was stabbed and shot and left behind by the terrorist in the
belief that he was dead or would soon die. Shrivardhankar,
however, survived to tell the story and to identify his assailant.
F
170. Shrivardhankar worked as a Senior Clerk at the
Mantralaya at the time. Apparently a devotee of Hazrat Sayyed
Shah Baba (a Muslim saint), after leaving his office at 6.00 PM
on November 26, 2008, Shrivardhankarwent to the Urs at the
G saint's Durgah (shrine), situated behind Metro Cinema. He left
the Durgah at 10.30 PM and proceeded to CST via the Metro
20. They were I. Timesh Narsing Chinnekar (PW-123) whose wife Gracy was
admitted in the hospital on November 22, 2008, for deliver; 2. Thomas
Sidhappa Uledhar (PW-108), borther-in-law of Chinnekar; and 3 Soman, a
H friend of Uledhar.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 411
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
subway and St. Xavier's College to catch a train home. On A
approaching the gate of Cama Hospital at Mahapalika Road,
Shrivardhankar saw many people running in panic and learnt
about the incident of firings at CST. To avoid getting caught in
the firing, he sought refuge in Cama Hospital. On entering the
gate of the hospital he saw a dead body (Ugade) lying in front B
of the entrance to the main building. On seeing the dead body
he was scared and, suspecting that some incident must have
taken place on the premises of the hospital, he entered the
main building through the collapsible gate. There was complete
silence in the building and he found all the doors closed. He c
went up to the fourth floor; all the floors appeared to be deserted
and the doors of all the wards were closed.
171. As soon as he reached the fifth floor, the luckless man
found himself standing in front of a man holding a gun and a
knife, and carrying a bag on his shoulder. He was about five D
feet six inches (5' 6") tall and had short hair. He was wearing a
jacket. He put his knife on Shrivardhankar's neck.
Shrivardhankar realised that the man would kill him in any case
and, therefore, decided to fight. He tried to hit the man in the
groin with his knee and also attempted to hit him with his bag. E
The bag, however, slipped out of Shrivardhankar's hand and
the killer struck him two (2) times on the neck with his knife,
causing bleeding. The killer caught hold of Shrivardhankar's
collar and pushed him down. He inflicted a third knife blow on
his back and also shot a bullet in his back. By that time, F
Shrivardhankar had lost any strength to resist and fell
unconscious. He regained consciousness after three to four (3-
4) days at JJ Hospital and was treated as an indoor patient
for about three (3) months 21 •
G
21. The only issue on which the two judges hearing the case were unable to
agree completely was what would be the witnesses' feelings towards the
saint. The author of these lines felt that he would never again go to shrine
holding him responsible for getting nearly killed on November 26. The other
judge, on the other hand, maintained that the occurence would have greatly
enhance his devotion for the saint, whom the witness would see as his
savior. H
412 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 172. Shrivardhankar vividly recounted his encounter with
one of the terrorists. He also told the court that in the fight with
the killer his spectacles had fallen down. At that time he was
wearing brown slippers (footwear). Shrivardhankar told the
court that his footwear and spectacles were lost and he did not
B find them on regaining consciousness at JJ Hospital.
173. He then identified his assailant at Cama Hospital
from the photograph on the identity card, Article 61. He also
identified the assailant in the photographs Ext. no. 410-A & Ext.
C no. 410-B (part of Ext. no. 410 collectively).
174. He also identified his spectacles, Article 310
(recovered and seized from Cama Hospital and produced in
court as one of the case articles) but said that the slippers
shown to him as Article 309 did not belong to him.
D
175. Chandrakant Dnyandev Tikhe (PW-109) was the lift
operator at Cama Hospital. On November 26, 2008, he was
on duty as Generator Operator from 10.00 PM in the evening
till 7:00 AM the following morning. The generator room is
E situated on the terrace of the building. At about 10:00 PM, when
he was on the terrace, Tikhe heard the sound of firing from the
ground floor. On hearing the gunshots he immediately went
inside the enclosure where the solar system is installed and
locked its collapsible gate. He was still inside the enclosure
when, around 11 :00 PM, the two terrorists arrived on the
F terrace. He saw them clearly in the light of the electric bulb of
200 watts that was lit on the terrace. One of them was taller
and the other was shorter. The "butka" (short) fellow pointed his
rifle towards Tikhe and asked him to come out or else he would
blow him to bits ("Aage aao warna uda dunga'J. Therefore,
G Tikhe opened the gate and came out of the enclosure. The tall
man was also holding a gun. Tikhe then identified the appellant
as the short man who had pointed his gun at him.
176. When Tikhe came out of the enclosure, the appellant
H asked him the way out from the hospital. Tikhe told them that
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 413
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
there was only one staircase that alone could be used to exit A
the hospital. The tall fellow, who was keeping a watch, suddenly
shouted "Police!" and started firing towards the stairs. The
appellant held his gun against Tikhe's back and pushed him
towards the stairs. The appellant and his tall partner brought
Tikhe to the landing between the sixth floor and the terrace. B
From there, Tikhe saw three to four (3-4) policemen in front of
the lift on the sixth floor. Tikhe raised his hands apprehending
that he might be killed by the police if they suspected him of
being a terrorist. A staff member of Cama Hospital, namely
Kai/ash (PW-111 ), was also with the policemen and he c
identified Tikhe to the police as one of the hospital staff. The
police fired at the appellant and his tall partner forcing them to
retreat to the terrace. In that time, Tikhe escaped and came
down to the sixth floor landing. He told the police that there were
two terrorists.
D
177. The appellant then started firing at them from above.
He also threw a hand grenade on to the sixth floor. The splinters
from the hand grenade hit Tikhe on his neck and he sustained
a bleeding injury. Some policemen were also injured from the
explosion of the hand grenade. The appellant and his tall E
partner kept firing at the policemen. Tikhe saw a police officer
and another policeman getting shot and falling down in front of
the lift. After some time, the terrorists again threw down a hand
·grenade and fired indiscriminately in the direction of the lift. The
other policemen a1 ,d the officers were also injured by the F
second explosion and the firing.
178. At this point, Tikhe came down to the second floor.
He was accompanied by two policemen and by Kai/ash. One
of these policemen went further down but the other stayed with G
them. After being given first aid they were shifted to GT Hospital.
From there, Tikhe was taken to KEM Hospital for treatment as
hand grenade splinters were lodged in his neck. He was
treated as an indoor patient for seven (7) days.
179. He also told the court that he had identified the H
414 SUPREME COURT REPORTS [2012] 8 S.C.R.
A appellant in the test identification parade on December 27,
2008.
180. Sadanand Vasant Date (PW-118) is an IPS Officer
and, at the material time, he was posted as Additional
Commissioner of Police, Central Region, Mumbai. On
8
November 26, 2008, at about 10.00 PM, he was at his
residence when the assault at CST took place. CST did not
come within his jurisdiction but, on the request of his colleague
Dr. Vankatesham whose jurisdiction included CST, Date came
C out like any dutiful police officer. He first went to the Malabar
Hill Police Station, which was close to his residence, and
collected one carbine and twenty (20) rounds. On the way to
CST he got information about the movements of the terrorists
and, in light of this information, he and his team reached Cama
Hospital a little after 11.00 PM. Date came to learn that the
D terrorists had gone up to the terrace of Cama Hospital building
and, therefore, he took the lift to the sixth floor landing, from
where stairs led up to the terrace22 . There, he had an encounter
with the two terrorists who were at that time on the terrace of
the building, holding Tikhe there.
E
181. On reaching the sixth floor, instead of rushing to the
terrace, Date picked up an iron object lying there and threw it
towards the door of the terrace, to check the position of the
terrorists. In response, a burst of firing from an automatic
F weapon came from the terrace door. Shortly thereafter, Date
saw a bulky person (Tikhe) coming down to the landing on the
stairs between the terrace and the 6th floor. Date challenged
the bulky person but Kai/ash (PW-111) identified him as a
member of the hospital staff. The bulky person indicated that
there was somebody behind him. Date asked him to bend down
G and then fired over his head towards the terrace. That forced
the terrorists to go back to the terrace. Taking advantage of the
22. The New Hospital building of Cama Hospital had two lifts, apart from the
stairs, for going to the upper floors. The lifts could take one up to the sixth
H floor but the stairs would go beyond, right up to terrace of the building.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 415
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
situation, Tikhe came down to the sixth floor landing. In the A
meantime, a grenade was thrown from the terrace. It exploded
on the sixth floor in front of the lift causing injuries to some
police officers, including Date, and also to Tikhe.
182. Date's team comprised seven (7) police officers and B
policemen. All of them were armed with firearms. Date's
operator Tilekar and police constable Khandelkar had one
carbine each. Date himself was wearing a bullet-proof jacket
and he had a carbine with twenty (20) rounds. But all this did
not prove sufficient to take out Kasab and Abu Ismail or even C
to stop them. The two terrorists were able to overcome the
police and to escape from the tight spot in which they had
landed - the terrace that had only one (1) exit by the stairs. This
was because, besides having superior fire power, they had the
great advantage of hand grenades. Grenades exploding in the
very small landing area badly injured the policemen who had D
no cover or shelter there.
183. Date stated before the court that, after the first hand
grenade exploded, his officers continued to fire towards the
terrace. But shortly afterwards, another hand grenade was E
thrown, which caused injuries to almost all officers who were
present there, including Date. The injured police officers,
policemen and staff members of Gama Hospital were asked
to go down. More (killed) could not go down because he was
badly injured and unconscious. Police constable Khandekar F
(killed) also could not go down as he, too, was badly injured.
Date said before the court that he continued to fire towards the
terrace in retaliation of the firing from there. The exchange of
fire went on for about forty (40) minutes during which he had
taken cover behind a wall situated in front of the right side lift. G
After some time he sensed some movement and, as he came
out from behind the wall which he was using for cover, he found
that two persons had already gone down towards the fifth floor.
He fired two shots towards the two persons going away but was
unable to say whether or not they were hit. He was unable to
H
pursue them because of his leg injury.
416 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 184. He said it would be 11.50 PM at that time.
185. Accordingly, Date informed his superiors that two
persons had gone down from the sixth floor of the building and
that they had automatic weapons and hand grenades.
186. Date further said that the help came at about 00.45
AM and he was shifted to KEM Hospital, where he was
admitted for three (3) days. Apart from several minor injuries
he had sustained injuries from splinters and fragments of the
hand grenade in his right eye and on the left side of chest just
C below armpit, and in his throat, right knee and left ankle.
Cama Out23: Nine (9) dead, seven (7) injured 24
187. Date on the sixth floor landing was unable to stop
Kasab and Abu Ismail and, while he took shelter against the
D hail of bullets and shrapnel from the grenades behind a wall,
the two managed to sneak down the stairs.
188. Suresh Shantaram Kadam (PW-138) and Yashwant
Shankar Thorawade (PW-128) 25 next saw Kasab and Abu
E 23. For this part of the case the prosecution exaimned eighteen (18) witnesses.
Leaving aside the doctor, forensic expert and other witnesses for a formal
nature, such as panch witnesses, the number of eye witnesses who gave
an ocular account of the events is not less than seven (7). Out of the seven
(7), six (6) are policemen one (1) of whom received injuries at the hands
of Kasab and Abu Ismail and One (1} is the driver of a car who received
F gunshot injuries when his car was fired upon by the terrorists.
24. The number relates to the person killed and injured by Kasab and Abu
Ismail from the point they came out of Gama hospital and until they
snatched the Skoda car.
25. Thorawade (PW-128) was earlier examined on July 14, 2009, before Kadam
(PW-138) who was examined on July 27, 2009. But on July 14, 2009 he
G only stated before the cout that, from November 28, 2008 he was handing
the investigation of Crime No. 245-08 till it was taken over by DCB, CID on
December 2, 2008. Later, Kadam, in his deposition before the court, stated
that Thorawade was also among the policemen stationed in front of the
entrance to Gama Hospital when Kasab and Abu Ismail came out of the
Hospital, and he too had witnessed the whole incident. Thereupon, the
cour recalled Thorawade and he was re-examined by the court on
H November 23, 2009.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 417
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Ismail coming out of Gama Hospital from its front side on A
Mahapalika Road and immediately gunning down a police
officer.
189. Thorawade was a Police Inspector and, on the
evening of November 26, 2008, in the absence of the senior B
police inspector, he was holding charge of Azad Maidan police
station. Kadam was a constable attached to the same Police
Station. As Azad Maidan police station received information
that terrorists had entered CST and were firing there, the
policemen proceeded to the railway station in two police C
vehicles. On the way, they learnt that the terrorists had left the
railway station and were seen going in the direction of Metro
Cinema. Accordingly, they came to Metro junction where they
came across Additional Police Commissioner Date (PW-118).
Date asked them to go back and collect bullet-proof jackets
and arms and ammunition from Azad Maidan police station as D
' had reached
information had arrived by then that the terrorists
the terrace of Gama Hospital building and were firing from there.
As directed by Date, Kadam, Shelke (PW-141) and some
others went back to Azad Maidan police station where they
collected two bullet-proof jackets and some fire-arms and E
ammunition.
190. Returning to the scene of firing, they decided to go
to the front gate of Gama Hospital (instead of going to the back
side), expecting the terrorists to exit the hospital from its main F
gate. Kadam stated that he was accompanied by Pl
Thorawade (PW-128), PSI Shelke (PW-141), and police
constables Utekar and Rathore. Constable Gawade was
driving the Bolero vehicle (called Peter-1 26 Azad Maidan) in
which they came there. The vehicle was parked on the left side G
of the road facing Metro junction and they took position by the
side of the vehicle.
26. Peter Mobile is the name given to a vehicle fitted with a wireless system.
One such Peter Mobile is proided to each police station under the direct
control of the Sr. Pl in charge of the police station.
H
418 SUPREME COURT REPORTS [2012) 8 S.C.R.
A 191. At about 11 :45 PM, the policemen saw two persons
coming out of Cama Hospital. Kadam first saw them on the
footpath of Cama Hospital and Thorawade when they were near
the gate of St. Xavier's College adjoining the hospital. Kadam
said that one of them was 'lamboo' (tall) and the other was
B 'butka' (short). In the meantime, they saw a motor-cycle driving
on Mahapalika Road from Metro junction towards CST. It was
driven by a police constable and a police officer was on its
pillion. The officer got down near the gate of St. Xavier's
College and, according to Kadam, the motor-cycle went
c ahead. (According to Thorwade, the constable made a u-turn
and went back towards Metro). The officer who got down from
the motor-cycle started directing people coming from the
direction of CST to return. He seemed to have asked the
lamboo and the butka also not to proceed further but to go
back. But they continued moving towards him and fired at him
0
from a distance of about fifteen to twenty (15-20) feet. The
officer collapsed to the ground. This confirmed to Thorawade
and Kadam that the two persons who had come out from Cama
Hospital were the terrorists whom they had been watching for.
Thorawade started firing at them from his service pistol. Kadam
E also fired one round from his pistol and then he stopped
because Thorawade was firing at the terrorists. The terrorists
fired back in retaliation.
192. Thorawade told the court that he tried sending
F messages to South Control from the wireless installed in his
Bolero police vehicle but, due to heavy traffic on the network,
he was unable to send the message. Therefore, Thorawade
went to the Metro junction where two to three (2-3) police
vehicles were available. The message was sent from the
G wireless set of one of those vehicles.
193. There were many people at the metro junction. After
a short while, one police vehicle (Qualis) appeared from
Badruddin Tayabji Road and took right turn on Mahapalika
Road towards Metro junction. Thorawade saw the two terrorists
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 419
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
in that vehicle. The person who was sitting on the right side was A
firing at the large crowd assembled at Metro junction. One
policeman ard another person were injured due to firing from
that vehicle 27 •
194. In the meanwhile, Kadam had remained in front of B
Cama Hospital. He went on to state before the court that he
saw a white car with a red beacon approaching Mahapalika
Road from Badruddin Tayabji Road but, immediately thereafter,
he saw the car going backwards on Badruddin Tayabji Road.
The /amboo and the butka fired at that car. One of them also C
threw a hand-grenade towards the white car. Thereafter, both
of them proceeded towards Rang Bhavan Lane on (BT Road).
The officer who was shot near the gate of St. Xavier's College
was later identified from the name plate on his uniform as
Durgude. Kadam then identified Kasab in the dock as the
butka who had fired at Durgude and who was accompanying D
the /amboo. Kadam further stated that he had earlier identified
the appellant in the identification parade on December 27,
2008, and had also identified the dead body of the lamboo on
January 6, 2009, at the JJ Hospital mortuary.
E
195. Maruti Madhavrao Phad (PW-139) was the driver of
the "white car with red beacon" which Kadam had seen coming
from Badruddin Tayabji Road towards Mahapalika Road and
then going in the reverse direction. It was actually a white
Honda City car, a government vehicle allotted to one Bhushan F
Gagrani, IAS, Secretary Medical Education and Drugs
Department (PW-140). Phad was the driver on duty for the
vehicle. On November 26, 2008, at 6.30 PM the car was, as
usual, parked in the premises of "High Rise Building" situated
on Badruddin Tayabji Road. Between 11 :30 and 11 :45 PM, G
27. Abu Ismail was firing at the crowd assembled at the Metro junction while
driving the Qualis police vehicle which the two terrorists had snatched after
killing all but one of its occupants. Actually both the two person, namely,
police constable driver Chitte and a civilian Surendera Bindu Ram, were
. killed, vide PW-654 (Ashok Dattatraya Khedkar, Assistant Police Inspector). H
420 SUPREME COURT REPORTS [2012] 8 S.C.R.
A Phad received a call on his mobile from Gagrani, asking him
to bring the car to his residence to take him to Mantralaya to
attend an emergency meeting that seems to have been called
as news broke of the terrorists' attack on Mumbai As directed,
Phad took the car from its parking place on Badruddin Tayabji
B Road and proceeded towards Mahapalika Road on his way to
Gagrani's residence. As he approached Mahapalika Road,
Phad saw two persons, one tall and the other short, firing on
the road. He, therefore, stopped the car and began to reverse.
At this, those two persons fired at his vehicle. Phad's right hand
c was on the steering wheel. Two bullets pierced the car's
windscreen and hit him on his right hand. He continued to
reverse the vehicle, ducking down to save himself from the volley
of bullets, but a third bullet hit him on the left side of his waist.
He also realized that the left front wheel of the car was
punctured. He, therefore, locked all four doors of the car by
0
means of the central locking switch and, pretending to be dead,
lay down on the driver's seat. At this time, he heard an explosion
near the car. A little while later, the two terrorists came near
his car and tried to open its doors but they were unable to do
so as the doors were locked. After some time, he saw them
E from the rear windscreen of the car near the SBI office behind
him. His car was standing on the road in a slanting position but
there was enough space on both sides for vehicles to pass.
As the two terrorists approached "High Rise Building", they took
cover behind bushes abutting that building. At the same time,
F Phad saw a police vehicle approaching his vehicle from behind,
i.e., from the side of the SBI office on Badruddin Tayabji Road.
As soon as the police vehicle came close to the two persons
hiding in the bushes, they started firing indiscriminately at the
police vehicle. At the same time, the shorter fellow seemed to
G have sustained a bullet injury, probably from the firing from the
police vehicle. His gun fell down. The butka, however, picked
up the gun and resumed firing at the police vehicle.
196. Firing from the police vehicle stopped, and the taller
H man went to the vehicle and opened its right front door, pulling
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 421
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
the driver on to the road. He also pulled down another person A
from the vehicle's middle seat. The butka fellow went to the left
side of the vehicle and pulled down the person sitting on the
left front seat. The larnboo fellow occupied the driver's seat and
the butka took the front left seat.
B
197. Phad stated before the court that he had witnessed
the above incident from a distance of about one hundred and
fifty (150) feet. The police vehicle thus taken over by the two
terrorists proceeded towards Mahapalika Road. Apprehending
danger from those two persons, Phad pretended to be dead C
and continued lying in his vehicle. That vehicle crossed Phad's
vehicle and went towards Mahapalika Road. It was a Qualis
vehicle.
198. Phad stated before the court that as a result of the
injuries sustained by him he lost the ring finger on his right hand D
and two other fingers were not functioning properly. He was no
longer able to drive auto vehicles.
199. Phad gave a description to the court of the two
persons whom he had seen firing on Badruddin Tayabji Road.
E
The lamboo was six (6) feet in height, of fair complexion, and
was aged about twenty-two to twenty-five (22-25) years. The
butka was five feet three inches (5' 3") inches in height, of fair
complexion and strongly built. Phad said he could identify both
of them and added that one of them was present in court,
F
identifying the appellant as the butka. He further said that he
had identified the appellant in the identification parade on
December 27, 2008. He had identified the appellant from
amongst seven (7) persons put in line with him. SEO, Vichare
was conducting the test identification parade. He then identified
the lamboo from his photograph (Article 61) and stated that G
earlier he had identified his dead body at the JJ mortuary from
amongst ten (10) dead bodies.
200. In cross-examination Phad said that as he
approached Mahapalika Road he had seen a police vehicle H
422 SUPREME COURT REPORTS (2012] 8 S.C.R.
A parked near the bus-stop on Mahapalika Road and had also
seen the two terrorists firing on the police officers standing near
the vehicle.
201. Bhushan Ashok Gagrani, who was examined as
B PW-140, stated before the court that he called Phad between
11.30 and 11.45 PM, to bring the car to his residence at
Yashodhan Building and take him to Mantralaya. When the car
did not come, he again called Phad but he did not turn up.
Therefore, Gagrani went to Mantralaya in his personal vehicle.
C At about 12.15 AM he tried to contact Phad once again. This
time, he got a response from the driver who told him that he
had been fired at in the car; that the car was stranded in the
vicinity of Rang Bhavan; and that he was lying injured inside it.
Gagrani then tried to contact the police control room but could
not get through as the number was continuously engaged. He
D then contacted the Superintendent of GT Hospital and
requested him to provide help to Phad. After an hour he was
informed that Phad had been admitted to the hospital with bullet
injuries.
E 202. All the phone calls made by Gagrani from his mobile
phone to the mobile phone of Phad and to the hospital were
independently established from the mobile phones records.
203. Arun Dada Jadhav (PW-136) is a very special
F witness. He was in the extraordinary position of actually traveling
with the two terrorists, lying badly injured in the back side of
the Qualis vehicle that the terrorists had hijacked after killing
three (3) senior police officers and three (3) policemen on
Badruddin Tayabji Road.
G 204. In the time that Additional Commissioner of Police
Date (PW-118) was engaged in the encounter with the terrorists
on the sixth floor landing of the New Cama Hospital Building,
a number of senior officers and policemen had gathered at the
back of the hospital. At that time, an injured policeman emerged
H from the back of the hospital. He told the assembled officers
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU. 423
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM J.1
that Date and some other porrce officers were lying injured on A
the higher floors of the hospital. Thereupon, Kamate, Additional
Commissioner of Police (East Region), Karkare, Joint
Commissioner of Police (ATS) and Salaskar, Senior Police
Inspector, decided to go to the front gate of Cama Hospital,
anticipating that the terrorists would go out from that side. They B
took a Qualis police jeep of Pydhonie Division 28 that was
standing there. Salaskar took the driver's seat, Kamate
occupied the front left seat and Karkare sat on the middle seat
of the vehicle. Jadhav, who was attached to the Anti-Extortion
Cell of which Salaskar was the chief, sat in the extreme rear of c
the vehicle. The driver of the vehicle, Bhosale (killed), sat
alongside Jadhav. Two constables, namely Yogesh Patil
(killed) and Jaywant Patil (killed), occupied the rear seat,
opposite Jadhav and Bhosale. Yogesh Patil was the wireless
operator on duty for that vehicle and Jaywant Patil was the
0
wireless operator of Kamte's vehicle.
205. As they proceeded on Badruddin Tayabji Road
towards the SBI office, a message was received on wireless
that the two terrorists were hiding on Rang Bhavan Lane near
a red vehicle. Rang Bhavan Lane begins from the SBI office. E
Kamate directed Salaskar to slow down the vehicle and
proceed cautiously. Jadhav told the court that there were
bushes on the right side of the road, about five to five and a
half (5-5.5) feet in height. As the Qualis came near the bushes,
it was greeted by a burst of gun-fire. Jadhav looked out from F
the vehicle's window and saw one lamboo and one butka firing
at their vehicle with AK-47 rifles. Jadhav, Karkare, Kamate and
Salaskar also fired at the /amboo and the butka from the
windows of the vehicle. Jadhav sustained bullet injuries on his
right elbow and left shoulder. Because of the injuries, the G
carbine fell from his hands on the vehicle's floor. The terrorists
continued to fire at them. By now, all the policemen had
28. Pyodhonie Division Jeep was assigned to Shanitlal Arjun Bhamre,
Assistant Commissioner of Police, Pydhonie Division (PW-133) and he had
come there on that Jeep. H
424 SUPREME COURT REPORTS [2012] 8 S.C.R.
A suffered gunshots and were injured. Jadhav was unable to pick
up his carbine.
206. After some time, the firing stopped and the lamboo
tried to open the vehicle's rear side door. However, the door
did not open. Jadhav tried to pick up his weapon once again
8
but could not. The driver Bhosale was also badly injured and
he had fallen down on Jadhav. Yogesh Patil and Jaywant Patil
were also unable to move. Realising that it was not possible
for him to retaliate, Jadhav pretended to be dead. At this time
he heard a door of their vehicle opening and also heard the
C noise of the vehicle starting. He realised that the vehicle was
being driven, and he then saw that the driver's seat was
occupied by the lamboo. Karkare, Salaskar and Kamate were
no longer in the vehicle.
D 207. At the metro junction, Jadhav heard the sound of
firing but he continued pretending to be dead. He realised that
one of the vehicle's wheels was punctured. After some time,
he also realised that even the tube and tyre had come off the
punctured wheel. He could sense this as he was himself an
E experienced driver.
208. The vehicle stopped on the road behind the Vidhan
Bhavan. There was more firing and then he saw the two
terrorists leaving the Qualis and going to a car that had stopped.
They left in the other car, which looked like a Honda City. He
F could see them clearly in the street light.
209. After the terrorists had left, Jadhav informed the
Police Control Room on the vehicle's wireless that the two
terrorists had run away in a car and that he was lying injured in
G the vehicle of Pydhonie division (Able) in front of the State Bank
of Mysore. He was rescued by a team of policemen including
Amrute, Senior Police Inspector (PW-137).
210. Jadhav went on to describe the two terrorists. He said
H that the lamboo was six (6) feet tall, of strong built and fair
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 425
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
complexion, and aged twenty-two to twenty-five (22-25) years. A
The butka was about five feet three inches (5' 3") tall, of medium
built and fair complexion, and aged twenty to twenty-two (20-
22) years. He identified the appellant in court as the butka. He
added that he had identified the appellant in the identification
parade held on December 27, 2008, at Arthur Road Prison. B
On January 6, 2009, he had identified the dead body of the
lamboo from amongst seven (7) dead bodies.
211. He also identified the carbine and the magazine
(Article 444 collectively) which he had in his possession at the C
time of the occurrence.
212. In cross-examination on behalf of the appellant,
Jadhav stated that while proceeding on Badruddin Tayabji
Road he had seen one white car with a red beacon. The
exchange of fire between the occupants of the police vehicle D
and the terrorists had taken place in front of the ATM centre.
He further stated that, at the time of the exchange of fire, his
carbine was on single fire mode and he had no opportunity to
put it on burst fire mode. Jadhav, Salaskar, Karkare and
Kamate had fired at the terrorists in retaliation. The AK-47 held E
by the appellant had fallen down from Jadhav's firing. The
appellant, however, picked up the gun and resumed firing at
them. Jadhav also said that while the Qualis was being driven
by the terrorists, Yogesh Patil was lying on his knee. At that time
Patil's mobile rang. The appellant, who was sitting on the front F
left seat, shot a burst of bullets with the barrel of his gun pointing
backwards. The bullets pierced the middle seat and riddled the
body of Yogesh Patil and he died as a result. Jadhav was not
injured in that firing. Jadhav said that the appellant must have
fired ten to fifteen (10-15) shots in that burst. He also stated G
that the /amboo had pulled Salaskar and the appellant had
pu!led Kamate out of the vehicle. Karkare was pulled out by the
lamboo assisted by the appellant. While pulling him down from
the vehicle the appellant had cursed him, using foul language,
saying that he was wearing a bullet-proof Uacket). He further H
426 SUPREME COURT REPORTS [2012] 8 S.C.R.
A said that the whole incident, from the beginning of firing by the
terrorists until they took the vehicle lasted three to four (3-4)
minutes.
THE SKODA ROBBERY29 :
B 213. Sharan Arasa (PW-144), Samit Vijay Ajgaonkar
(PW-147) and his wife Megha were the three occupants of the
white Skoda car that Kasab and Abu Ismail snatched at gun-
point, and which Arun Dada Jadhav (PW-136), lying in the back
seat of the police Qualis, had thought to be a white Honda City
C car.
214. Arasa and Ajgaonkar had a common friend Siddharth
Umashankar (PW-238) who worked as Sales Manager in
Oberoi Hotel. When the two terrorists, namely Abdul Rehman
0 (Chhota) and Fahadul/ah, entered Oberoi Hotel and started
shooting there, Umashankar, along with other guests and staff
members, escaped through the exit door in the lobby area. They
went to lnox multiplex, which is a few minutes' walking distance
from the Oberoi. When Ajgaonkar called him on the telephone,
E Umashankar asked him to come to lnox and take him away
from there. A1gaonkarcontacted Arasa and asked him to come
with his car so that they could go to lnox to fetch Umashankar.
Thus, Arasa took the Skoda Car (of which his father was the
registered owner) and came to Ajgaonkar's house at Mahim.
From Mahim they proceeded to lnox with Arasa driving,
F Ajgaonkar occupying the front left seat and his wife Megha
sitting in the back. They were going to rescue Umashankar but
they themselves had a brush with death when they came across
the two terrorists face-to-face.
G 29. For this part of the case the prosecution examined six (6) witnesses. Of
these three (3) are policemen. One of them is formal, the other recorded
the statement of the perso from whom the car was taken away at gun-
point and, since he was not the jurisdictional policeman, he handed over
the recorded statment to the jurisdictional policeman who is the third police
witness. Of the remaining three (3), two (2) are the occupants of the car
and the third is the person whom they were going to rescue after he was
H evacuated from Oberoi Hotel.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB@ ABU 427
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
215. They reached Rajani Patel Road, Nariman Point, at A
about 00.15 hours on November 27, 2008. They saw a Qualis
police vehicle approaching them from the opposite direction.
When the Qualis was about sixty (60) feet away, someone from
the police vehicle shouted at them to stop. Simultaneously, a
shot was fired in the air from that vehicle. The Qualis stopped B
and two persons got down from it and approached their car.
The person who had got out from the left side of the police
vehicle came in front of their car. He asked Arasa to get out of
the vehicle. The other person, who had been driving the Qualis,
pulled Arasa out of the Skoda car, holding him by his collar. In c
the meantime, Samit and Megha had already left the car and
were sitting on the footpath. As Arasa got out of the car, he
realised that he was carrying the key. He, therefore, immediately
threw the key away.
216. The person who had come out of the Qualis from the D
left side was shorter than the other person. Arasa identified the
appellant in court as the same short person who had come to
him and asked for the car's key. When Arasa had thrown away
the key, it had landed near the car's rear right wheel. Arasa
picked up the key and gave it to the appellant. The two men E
drove away in the car: the appellant sat in the front left seat and
his partner drove the car.
217. Let us now see the description of the occurrence by
Ajgaonkar. He stated in his deposition before the court that, F
l,'Jhen the Qualis stopped, two persons got down from it and
approached their car. One of them was taller and the other was
shorter. He identified the appellant as the shorter person who
approached their car along with his associate who was taller
than him. The taller man approached Arasa while the appellant G
stood in front of the car. The appellant ordered them to get out
of the car ("Gadi se bahar aao"). The taller fellow pulled Arasa
out by his collar. In the meantime, Ajgaonkar and his wife got
down from the car and went to the footpath on the left side of
the car. The taller fellow occupied the driver's seat and the
H
appellant sat on the front left seat. The taller fellow, however,
428 SUPREME COURT REPORTS [2012] 8 S.C.R.
A could not find the car keys and, hence, the appellant got down
from the car and demanded the key from Arasa. Arasa picked
up the key which he had thrown near the car and gave it to the
c;ippellant. Thereafter, both of them drove away in the Skoda
car. The terrorists proceeded towards lnox theatre.
B
218. Arasa further told the court that, at about 3:00 PM on
November 27, 2008, he received a phone call from PSI Zende
(PW-148) of Marine Drive police station, asking him to come
to the police station. Accordingly, he went and reached there
at about 3:45 PM. He was taken to the spot from where the
C car was taken from him. A Panchnama was drawn up by the
police.
219. He was finally shown his vehicle on December 25,
2008, in the premises of the office of DCB CID. There was a
D bullet hole on the right front door. The car was badly damaged
on the right side. He told the court that the car was in proper
condition when it was snatched away from his custody.
220. As seen above, both Arasa and Ajgaonkar identified
the appellant in court. Both said that they had earlier identified
E him in the test identification parade. Arasa was one of the
witnesses in the test identification parade held on December
28, 2008, and Ajgaonkar on January 14, 2009. Both had
identified him in a group of seven (7) persons of similar height
and built. The identification was made in the presence of the
F SEO and two panchas.
VINOLI CHOWPATY30 : ONE DEAD, ONE !NJURED
221. Kasab and Abu Ismail along with eight (8) others (the
G 30. For this part of the case the prosecution has examined ten (10) witnesses.
LeaviAg aside two (2) panch witnesses and a formal police witness, there
are seven (7) police witnesses of whom three (3) are members of the team
that overpowered Kasab and Abu Ismail and took them in custody (One of
them is injured), two (2) reached the spot after Kasab was apprehended
and had taken him and Abu Ismail to hospital, one (1) maintained the police
H logs and the last secured the area after the incident.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 429
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
dead accused) were seen landing on the shore of Mumbai on A
November 26, 2008, between 9.15 and 9.30 PM. Kasab and
Abu Ismail snatched the Skoda car near Vidhan Sabha around
12.15 AM on November 27. They came to Mumbai armed to
the teeth; they had the great advantage of complete surprise
and were also aided by a lot of luck. They were thus able to B
have a free run for over three (3) hours, killing innocent people
and policemen at will. However, their run would soon come to
end as a team of policemen were waiting, determined to stop
them, caring little for their own lives. Abu Ismail was killed in
their last encounter with a police team, but Kasab was taken c
alive in custody.
222. We propose to examine here three (3) witnesses who
were members of the police team that stopped Kasab and Abu
Ismail travelling in the stolen Skoda car and took them in
custody. D
223. Bhaskar Dattatray Kadam (PW-1) was a Sub-
Inspector of Police attached to DB Marg Police Station. On
November 26, 2008, at about 22.00. hours, Senior Police
Inspector Nagappa Mali told him that terrorists had attacked E
some parts of South Mumbai and directed him to go to Girgaon
(Vinoli) Chowpaty along with members of the Crime Detection
Branch and to do a nakabandi there by putting up barricades.
As directed by Mali, Kadam proceeded to Vinoli Chowpaty
accompanied by six (6) members of the Detection Branch. On F
reaching there, he found API Hemant Bavthankar (PW-3), Peter
Mobile Operator Sanjay Patil, Peter Mobile Driver Chandrakant
Kamble, Girgaon Chowpaty Beat In-charge ASI Pawar, ASI
Kochale, Head Constable Chavan, PN Naik and some other
policemen already present there and barricades already put up. G
Kadam and the members of the Detection Branch joined the
police team already present there. After some time, API
Govilkar (PW-2; injured) and ASI Tukaram Ombale (killed),
along with some other policemen, also arrived at the
nakabandi.
H
430 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 224. The police team was receiving messages regularly
through wireless on the Peter Mobile Van. They received a
message that two terrorists were proceeding towards
Chowpaty from Vidhan Bhawan via Marine Drive in a Skoda
car. At about 00.30 hours they spotted a Skoda car on Marine
B Drive coming from South Bombay towards Chowpaty. Having
been alerted in regard to the Skoda, all the policemen,
including Kadam, signalled to the driver to stop the car. The
car stopped at a distance of about fifty (50) feet from the
barricades. The police team shouted to tell the driver that there
c was a nakabandi and they would check the car. They asked
the driver to put off the head lights and to put on the inside lights
of the car. Instead of following these directions, the driver of the
car did just the opposite. Not only were the head lights kept on
but the wipers and the water spray on the windscreen were also
switched on. Therefore, it became difficult to see anything inside
0
the car. Then, in a bid to escape, the driver tried to take a u-
turn just before the barricades. However, the car could not climb
over the road divider; it dashed against it and stopped. Kadam
and six (6) other policemen rushed towards the car and
E surrounded it. The driver and the other person who was sitting
on the front left seat raised their hands pretending surrender
but, when Kadam approached the driver, he started firing at
him through the lowered window. Kadam fired back from his
service revolver. At that time Kadam was about ten to twelve
(10-12) feet from the driver of the car. Kadam told the court that
F he shot the driver of the Skoda car and injured him.
225. The other occupant of the Skoda car, who was sitting
on the front left seat, opened the door on his side and got out
of the car. While getting out, he deliberately fell on the road.
G ASI Tukaram Ombale and API Sanjay Govilkar were
proceeding towards the car's front left door. The person who
had got out of the car from the front left door started firing at
Tukaram Ombale with an AK-47 rifle. Even as he was being
fired at, Tukaram Ombale threw himself bodily upon his
H assailant. Tukaram Ombale and Govilkarwere injured by shots
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 431
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
from the AK-47 rifle. Other members of Ombale's and Govilkar's A
team started hitting the assailant with lathis. They succeeded
in disarming him. His AK-47 rifle was snatched away from him
by policemen and he was taken into custody.
226. Within ten (10) minutes of this occurrence, Senior Pl B
Mali, Pl Sawant (PW-31), Pl Surulkar, API Yadav, API Gawade
(PW-4), PSI Gaikwad (PW-24) and PSI Warang (PW-27)
reached the spot. Two (2) ambulances also reached there
within the same time.
227. Ombale and Govilkar, who had sustained injuries, C
were sent to hospital in the Peter Mobile Van. Pl Surulkar and
API Gawade took one of the two terrorists (Abu Ismail) to
hospital in one of the ambulances and the other terrorist
(Kasab) was taken to hospital by PSI Warang (PW-27) and
some other policemen. D
228. Kadam further told the court that, on reaching the DB
Marg Police Station, he received a call from Gawade, speaking
from Nair Hospital, informing him that one of the terrorists (Abu
Ismail) had been declared brought dead by the hospital and E
that the other terrorist (Kasab) had been admitted for treatment.
Gawade also informed Kadam that the terrorist who was alive
had disclosed his name as Ajmal Amir Kasab, gave his age
as 21 years and address as Faridkot, Taluka Jipalpura, District
Ukhad, Punjab State, Pakistan. He also gave the name and
address of the deceased terrorist as Abu Ismail, aged 25 F
years, resident of Dera Ismail Khan, Punjab State, Pakistan.
Station diary entries (Ext. no. 150A) were made on the basis
of the information received from Gawade. After some time, API
Yadav called from Harkisandas Hospital to inform that ASI
Ombale had died as a result of injuries sustained by him. G
Station diary entry was also made in regard to this information.
229. The FIR of Kadam was recorded by Pl Sawant at
2.1 Ohours, giving rise to CR no. 30512008 (later converted into
DCB CID CR no. 18212008). The FIR was shown to him in the H
432 SUPREME COURT REPORTS [2012] 8 S.C.R.
A course of his deposition. He identified it and also identified his
signatures on all the pages. The FIR was then marked Ext. no.
57.
230. Kadam then identified the appellant in court as the
terrorist who was sitting on the Skoda's front left seat. He also
8
described the terrorist who was driving the car. He said that
he .was strongly built and about six (6) feet in height; he had
shallow complexion and was clean shaven. He had black hair.
He was wearing an ash-coloured T-shirt and blue cargo
trousers. .
c
231. He identified a pair of blue cargo trousers (Article 3)
and an ash-coloured T-shirt (Article 5) in court as the same as
those that the deceased driver of the Skoda car was wearing
at the time of the occurrence.
D
232. He then identified the appellant as the terrorist who
had fired at the deceased Ombale. He further said that the
appellant was wearing green cargo pants and a blue half T-shirt.
On these articles being produced in court, he identified the
E green cargo trousers (Article 7) and a blue T-shirt (Article 9)
as those that the appellant was wearing at the time of the
occurrence.
233. Kadam further said that in all four firearms (two AK-
47 rifles and two pistols) were seized from the place of the
F occurrence. Both the pistols were found on the road, one was
lying on the right side of the driver's seat on the road and the
other was lying on the left side of the car near the front left door.
One of the AK-47 rifles was found in the leg space below the
driver's seat and the other was found lying on the road on the
G left side of the car. He claimed that he could identify the AK-
47 rifle with which the appellant had fired at the deceased
Tukaram Ombale.
234. Kadam identified the AK-47 rifle (Article 10) in court
H as being the same AK-47 rifle with which the appellant had fired
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 433
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
at the deceased Tukaram Ombale. He also identified the other A
AK-47 rifle (Article 12) as the same AK-47 rifle that was found
in the leg space below the driver's seat of the Skoda car. He
added that Article 10 was found loaded with one magazine and
that another magazine was attached to the first one with
cellophane tape. B
235. Kadam further claimed that he could identify the
pistols seized from the spot. He identified the 9 mm pistol
(Article 14) and another 9 mm pistol that bore the name of its
. maker 'Diamond Nedi Frontiar Arms Company' Peshawar C
(Article 16) as the same two pistols seized from the place of
occurrence by Pl Sawant (PW-31) under a Panchnama.
236. Kadam proceeded to identify another 9 mm pistol
(Article 18) along with one (1) empty magazine (Article 20), five
(5) live cartridges (Article 21 collectively), two (2) empty D
cartridge cases (Article 22 collectively), and two (2) bullets
(Article 23 collectively) as the service pistol Kadam was
carrying and from which he had fired three rounds at the time
of the occurrence.
237. He also said that he had identified the appellant in E
the test identification parade held on December 27, 2008, at
Arthur Road Prison. He had also identified the dead body of
the deceased terrorist at the JJ Hospital mortuary on January
6, 2009. He had identified the dead body of the deceased
driver from amongst seven (7) dead bodies shown to him. F
238. He also said that the operation lasted for about four
(4) minutes and it was over by 00:30 hours or 00:35 hours.
239. The appellant and the deceased driver (Abu Ismail)
were taken to hospitals in two different ambulances. G
240. Sanjay Yashwant Govilkar (PW-2) was another
member of the police team at Vinoli Chowpaty that took Kasab
in custody. On the direction of Senior Pl Mali, he arrived at
Chowpaty in front of Ideal Cafe for nakabandi around 00.05 H
434 SUPREME COURT REPORTS [2012) 8 S.C.R.
A hours on November 27, 2008. His deposition was similar to
that of Kadam (PW-1): the arrival of the Skoda car at the
barricades at about 00:30 hours, the attempt by the occupants
of the car to confuse the police team by keeping the headlights
on and switching on the windscreen wipers and water spray,
B and the unsuccessful bid to escape by taking a u-turn before
the barricades. Govilkar told the court that when the car stopped
after dashing against the road divider, he, ASI Tukaram Ombale
and other policemen proceeded towards the left side of the car.
Simultaneously, API Bavthankar (PW-3), PSI Bhaskar Kadam
c (PW-1) and other policemen went towards the driver's side.
241. Though Govilkar was a Police Inspector, he was not
carrying any weapon at the time of the occurrence. He had
come to DB Marg Police Station only a few days ago and had
earlier been working in the immigration department where
D officers are not provided with any official firearms. He was yet
to get a weapon when the occurrence took place. Tukaram
Ombale was also unarmed. In short, these unanned policemen
proceeded to tackle a desperate terrorist armed with an AK-
4 7 rifle and a pistol.
E
242. When Govilkar and Tukaram Ombale reached near
the car's front left door, the terrorist sitting on that side opened
the door and came out holding an AK-47 rifle in his hand.
Govi/kar and Tukaram Om bale attempted to catch hold of the
weapon. The terrorist fell down on the road and started firing
F at them while lying down on the road. Both Govilkar and
Tukaram Ombale sustained injuries from the firing. Tukaram
Ombale was seriously injured. Govi/kar sustained only one injury
on the right side of his waist. Both policemen were bleeding
from their injuries. In the meanwhile, the other policemen hit the
G fallen terrorist with Jathis and it was only then that he was
brought under control and could be disarmed. The AK-47 rifle
was snatched away by Govi/kar and other policemen. Govi/kar
could see the terrorist clearly in the street light. He claimed that
he could identify the terrorist and he identified the appellant as
H the terrorist who was holding the AK-47 rifle and who had fired
MOHAMMED AJMAL MOHAMMAD AMIR KASAB@ ABU 435
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
at him and ASI Tukaram Ombale. Govi/karwas then shown AK- A
47 rifles (Articles 10 and 12). He identified Article 10 as the
AK-4 7 rifle that the appellant was holding and from which he
had fired at them.
243. Govilkar further stated before the court that the
8
appellant was wearing a blue T-shirt and green cargo trousers.
He was also wearing grey sports shoes. When these were
produced in court, Govilkar identified the pair of shoes (Article
25 collectively) as the same that were worn by the appellant at
the time of the occurrence.
c
244. Govi/kar and Tukaram Ombale were taken to
Harkisandas Hospital in Peter Mobile van. Tukaram Ombale
died there. Govilkar remained admitted in the hospital till
November 29, 2008.
245. Govilkar told the court that he had identified the D
appellant in the test identification parade held on December
27, 2008, at Arthur Road Prison. Special Executive Officer
Vichare conducted the parade.
246. In cross-examination on behalf of the appellant, E
Govilkar said that while getting out of the car, the appellant had
fallen down deliberately. Govilkar added that he continued to
hold the appellant's rifle despite sustaining injuries, and that
Tukaram Ombale had thrown himself bodily over the appellant
even after being shot. Replying to a question in the cross- F
examination, Govilkar said that he identified the AK-47 rifle
(Article 10) as belonging to the appellant because it had no
sling while the other AK-47 rifle (Article 12) had a sling.
247. Hemant Anant Bavthankar (PW-3) was another
Assistant Police Inspector present at the nakabandi at Vinoli G
Chowpaty on the direction of Senior Police Inspector Mali. He
had arrived at the nakabandi at about 21 :55 hours on November
26, 2008. His narration of events during the occurrence was
similar to that of Kadam and Govi/kar. the arrival of the Skoda
car at the nakabandi at about 00:30 hours on November 27, H
436 SUPREME COURT REPORTS [2012) 8 S.C.R.
A 2008; the driver's attempt to flee the barricades by trying to
make a u-turn; and the car getting stuck on the road divider.
Bavthankar added that he was standing on the road divider
when the car hit against the divider. The divider was about two
and a half (2.5) feet high and made of RCC. He was on the
B right side of the car at the divider. Kadam (PW-1) was about
fifteen (15) feet away from him on the eastern side of the road
meant for south-bound traffic.
248. Shouting at the terrorist, they tried to approach the
car. The driver of the car fired from his pistol at Bavthankar,
C Kadam and other policemen who were trying to approach him.
The bullets missed Bavthankarand he did not sustain any injury.
At that time he was on the road meant for north-bound traffic.
He went behind the Skoda car and fired three rounds from his
service pistol at the car's rear windscreen. Kadam (PW-1)
D also fired at the driver at the same time. The driver was injured
due to their firing. He was taken into custody by the police
officers/policemen who were present on the spot. In the
meantime, Bavthankar moved to the front left door of the car.
The person sitting on the front left seat had fired at ASI Tukaram
E Ombale, API Sanjay Govilkar and other policemen. Ombale
and Govi/kar had both been shot and injured by this person.
The other policemen, who were with Govilkar and Ombale,
disarmed and apprehended him. Bavthankartold the court that
he could identify the person sitting on the left front seat of the
F car. He said he was present in court and he identified the
appellant as the same person who had fired at Ombale and
Govilkar. He further said that he saw the whole incident in the
street lights.
249. Bavthankarfurther stated before the court that, in the
G course of inspecting the car, the Bomb Detection and Disposal
Squad (BODS) found one (1) hand grenade and two (2)
magazines of AK-47 rifle in a jacket lying on the rear seat of
the car. One AK-47 rifle was found in the leg space beneath
the driver's seat. PSI Ghodse (PW-9) of the BODS removed
H the hand grenade and proceeded towards Girgaon Chowpaty.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 437
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM,
J]
Bavthankar told the court thaf he could identify the AK-47 rifle A
found in the leg space of the car. Articles 10 and 12 were shown
to the Witness. He identified Article 12 as the AK-4 7 that was
found in the leg space below the driver's seat, and Article 10
as the AK-47 rifle which was held by the appellant.
B
250. He then proceeded to give a description of the
driver. He said that the driver had wheatish complexion, was
strongly built and was aged twenty-four to twenty-six (24-26)
years. He was about six (6) feet tall and was wearing an ash-
coloured half T-shirt and blue cargo trousers. Bavthankarfurther C
said that he had identified the dead body of the driver at the
mortuary of JJ Hospital on January 6, 2009. He had identified
the dead body from amongst seven (7) dead bodies placed
for identification. He added that he had identified the appellant
in the identification parade held on December 27, 2008, at
Arthur Road Prison. D
251. On these articles being produced in court,
Bavthankar identified one (1) pistol (Article 29), one (1)
magazine (Article 30), five (5) live cartridges (Article 31
collectively), two (2) empties (Article 32 collectively), and two E
(2) bullets (Article 33 collectively), and said this was the same
pistol that he had used at the time of the occurrence and which
he had handed over, along with the rounds, to Pl Sawant (PW-
31)
F
252. In cross examination, Bavthankar said that bullets
fired by him had hit the driver. He further said that he could not
say how many bullets might have hit him. The driver also
sustained injuries from firing by PSI Kadam (PW-1) 31 • The driver
G
31. According to the Post-Morterm of Abu Ismail (Ext. No. 97) there were six (6)
bullet wounds on his person; among the other parts of the body, he was
hit on the right eye and on the rear side of head, the front portion of the
arm of the right hand shoulder and also at a distance of seven (7) cm
down from the right hand shoulder. It would thus appear that he was hit by
shots fired by both, Kadam and Bavthankar. H
438 SUPREME COURT REPORTS [2012] 8 S.C.R.
A was removed from the seat by them. He was unconscious at
that time as he was injured by the bullets.
It needs to be clarified here that Article 12, the AK-47 rifle
which was identified by Kadam (PW-1), Govilkar (PW-2) and
B Bavthankar (PW-3) as having been recovered from the leg
space below the driver's seat of the Skoda car actually
belonged to the slain police officer Ashok Kamte, Additional
Police Commissioner. Abu Ismail evidently picked it up while
switching from the Qualis to the Skoda, leaving his own AK-47
C rifle in the damaged Qualis.
253. Arun Balkrishna Jande (PW-7) who was working at
Naigaon Police Armoury at the relevant time deposed before
the court that Article 12, the AK-4 7 rifle and the magazine were
issued to Ashok Kamte, Additional Commissioner of Police on
D August 4, 2008. He identified Article 12, the AK-47 rifle from
the number on its butt (94) and the body (LY8860) on the basis
of the entry (Ext. no. 76) made in the register maintained in the
armoury. The empty magazine with it also bore the same
number.
E
254. On the other hand the AK-47 rifle along with a
magazine (labelled Articles 427 and 428 respectively) that was
recovered from the damaged Qualis police vehicle under
seizure Panchnama (Ext. no. 529) belonged to Abu Ismail and
he had carried it with him from Pakistan. This becomes clear
F from the ballistic analysis of the bullets recovered from dead
bodies which shows that one Ashrafali, who was killed at CST
and Ashok Kamte, who was killed in the Qualis police vehicle
were hit by bullets fired from the AK-47 rifle, Article 427.This
is also in conformity with what the appellant stated in his
G confession before the magistrate that as they left the Qualis
police vehicle, Abu Ismail left behind his AK-47, the magazines
of which had emptied by then and picked up the AK-47 of one
of the officers lying dead in the vehicle.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 439
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
VILE PARLE BLAST: TWO DEAD, THREE INJURED A
255. Before concluding the narration of crimes directly
committed by Kasab in the company of Abu Ismail, we must
take note of another event. A taxi bearing registration number
MH-01-G-7792 was blown up by a bomb blast on western
8
express highway, Vile Parle (East), near Swan City Club at
slightly after 10:45 PM on November 26, 2008. The explosion
destroyed the vehicle and instantly killed its two occupants (the
driver and a passenger).
256. The explosion was witnessed by Shyamsunder C
Rambharat Choudhary (PW-171), Balkrushna Ramchandra
Bare (PW-490) and Sheldon Alman (PW-491). As a result of
the explosion, Choudhary suffered a bleeding injury on his right
shoulder, Bare sustained injuries on his face below the eyelid,
and on the forehead, nose and ear, and Alman on his left hand. D
Choudhary and Bare were admitted as indoor patients and
treated at Cooper Hospital, and Alman at Holy Spirit Hospital.
257. The two occupants of the taxi, i.e., the driver and the
passenger, who lost their lives in the explosion, were Umar E
Shaikh and Laxminarayan Goyal3 2 respectively.
258. In the narration of this painful and gory tale, one
comes across brutal and mindless killings at every step but
there are some killings, like the present one, that stand out as
especially sorrowful. Shaikh was a taxi driver eking out a F
livelihood by plying a taxi of which he was not even the owner,
and Goyal was a lawyer from Hyderabad who had come to
Mumbai in connection with some professional work. The only
fault of the taxi driver was that he was hired by the two
messengers of death to carry them from Badhwar Park to CST G
and of the passenger that on that chaotic night in Mumbai, when
death seemed to be lurking around every corner, he had thought
32. Their identity was established by DNA profiling of the remains of the bodies
found in the destroyed taxi. H
440 SUPREME COURT REPORTS [2012] 8 S.C.R.
A that a taxi would be a safer mode of transport than the local
trains.
259. As noted above, Goyal had come to Mumbai in
connection with some professional work and he was due to go
back to Hyderabad by a train leaving CST in the evening of
B November 26, 2008. He reached CST but missed the train. His
sister-in-law Usha Sharad Chaudhary (PW-168) lived in
Mumbai at Charkop, Kandivali (W). Goyal called her from his
mobile 33 phone to tell her that there was some incident of firings
at CST and he had missed his train and he was coming back
C to her place. On account of the city being under terrorist attack,
she asked him not to travel by any local train but to take a taxi.
After five (5) minutes, he called her again to tell her that he had
boarded a taxi and left CST.
D 260. Usha Sharad Chaudhary was quite anxious and
called Goyal from her mobile phone again at about 10:30 PM.
He told her that he had reached Dadar. At about 11 :45 PM,
Usha Sharad Chaudhary received a phone call from Goyal's
daughter Diksha, who stayed at Walkeshwar, Mumbai, saying
E that she had last spoken to her father at about 10:45 PM and
thereafter her father's phone was not reachable. That was the
last anyone spoke to or heard from Goyal. His mutilated body
was later found at Cooper Hospital.
261. Umar Sheikh, too, while carrying Goyal in his taxi,
F was called by his friend /rshad Ahmed Shaikh (PW-169) on
his mobile at about 10:00 PM on November 26, 2008. lrshad
had given his driving licence for renewal to Umar (the deceased)
and he was enquiring whether it had been renewed. Umar told
him that the friend to whom he had given the ticence for renewal
G had not brought it back and added that in view of all the
disturbances in the city it was good that he (lrshad Ahmed
Shaikh) would not be driving on that night. At this lrshad, asked
him why, in that case, was he proceeding to Kandivali with a
H 33. All calls established through mobile call records.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 441
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
passenger in his taxi? Umar told him that it was only because A
the passenger seemed to be in trouble and he had made a very
earnest request to take him to Kandivali by any means. In the
morning of November 27, 2008, lrshad Shaikh learnt from TV
news that there had been a bomb blast in a taxi at Vile Parle.
He and some friends went in search of Umar Shaikh and found B
his dead body at Coroner's Court at Cooper Hospital.
BEYOND VINOLI:
262. The above is a broad account of the havoc wrought
by Kasab and Abu Ismail over a period of slightly more than C
three (3) hours, beginning with their arrival at Badhwar Park and
ending with their being apprehended at Vinoli Chowpaty. It must,
however, be made clear that the above account is based only
on part of the ocular evidence led by the prosecution before
the trial court. Besides the depositions referred to above, the D
prosecution has an enormous volume of other evidence such
as: articles recovered and seized from places through which
the two terrorists passed, and the places where.they stopped;
the vehicles they used until they were finally caught; medical and
forensic reports, CCTV recordings, phone call records, Station E
Diary entries, police logs, etc. We see no reason, however, to
refer to all that evidence since, on the basis of the ocular
evidence discussed above alone, we have no doubt that the
appellant, personally and jointly with Abu Ismail, is directly
responsible for killing at least seventy-two (72) people 34 and F
causing injuries of various kinds to one hundred and thirty (130)
people 35 •
263. All the witnesses discussed above (except those
relating to the Vile Parle and Mazgaon Taxi blasts) had a life
G
34. One (1) the "Nakhva" on the Kuber; fifty two (52) at CST; seven (7), "Gama
in", nine (9)", "Gama out", one (1) at Vinoli Chowpaty; and two (2) in the
Vile Parle taxi blast.
35. One hundered and nine (109) at CST; ten (10), "Gama in", seven (7), "Gama
out", one (1) at Vinoli Chowpaty; and three (3) at Vile Parle taxi blast. H
442 SUPREME COURT REPORTS [2012] 8 S.C.R.
A and death encounter with the appellant and his associate, Abu
Ismail (deceased accused no.1 ), at close quarters. The
physical appearance of the two terrorists was etched on their
minds. All the witnesses gave a detailed description of the two
terrorists to the court. They described them by their complexion,
B age, body-built and height, stating that one of them was tall and
the other was short. All of them identified the appellant in court
as the shorter of the two assailants. They also identified Abu
Ismail from the photograph on the fake identity card Article 61.
They also stated before the court that they had identified the
c appellant in the test identification parades held. We accept their
testimony without any hesitation.
264. From the forensic evidence it further appears that of
the seventy-two (72) dead, at least six (6) persons fell to shots
fired by the appellant3 6 . We, therefore, see no difficulty
D whatsoever in holding him guilty of multiple murder, murder with
common intention and abetment, attempt to murder with
common intention and abetment, abducting in order to murder,
robbery with attempt to cause death or grievous hurt, and
several other allied offences under the Penal Code (IPC),
E committing terrorist act punishable under Section 16 of Unlawful
Activities (Prevention) Act, 1967, as well as offences under the
Explosives Act, 1884, Explosive Substances Act, 1908, and
Arms Act, 1959.
F 265. Nothing will please Mr. Raju Ramachandran, senior
counsel appearing for the appellant, more than stopping at this
stage. As a matter of fact, he made a fervent plea to segregate
the case of the appellant from the other eight (8) dead accused.
G 36. From the ballistic analysis of the AK-47 bullets recovered from dead bodies,
(only such that were not fragmented and were capable of identification),
it came to be established that at least six (6) persons, namely, Sitaram
Sakhare, Rahamtulla Ibrahim, Vined Mandanlal Gupta, Ambadas
Ramchandra Pawar, Abbas Raj ab Ansari (at CST) and Tukaram Gopal
Ombale (at Vinoli Chaupaty) were hit by shots from the AK-47 rifle. Article
10, held by the appellant. Ashok Kamte, according to the forensic evidence,
H was hit by shots fired from Article 427, the AK-47 rifle used by Abu Ismail.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 443
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
He urged that, for the purpose of this appeal, the court need A
not go into the offences committed by the eight (8) other dead
terrorists who, though, arrived together with the appellant and
Abu Ismail at Badhwar park, but went their separate ways from
there. The learned Counsel submitted that the appellant's
culpability should be judged, and the commensurate punishment B
for him should be determined only on the basis of the offences
directly attributable to him. In other words, he would like to
confine the case only to acts committed by the appellant along
with the dead Abu Ismail from the time the two landed at
Badhwar Park until they were caught at Vinoli Chowpaty. c
266. Mr. Gopal Subramanium, learned senior advocate
appearing for the State of Maharashtra, was quite shocked by
the suggestion made by Mr. Ramachandran. Mr. Subramanium
submitted that stopping at this stage of the case would amount
to shutting out the prosecution unheard. Learned Counsel D
submitted that the offences committed by the appellant in the
company of the dead Abu Ismail can never be properly
appreciated in isolation. The appellant and his companion, the
dead Abu Ismail, were part of a close-knit team of ten (10)
terrorists who arrived together on the soil of Mumbai in a highly E
organised way and attacked their various targets in furtherance
of a common conspiracy. The learned Counsel submitted that
the full magnitude of the case would only be clear as the
prosecution unfolds the evidence relating to conspiracy. He
submitted that, as the evidence relating to the other aspects of F
the case and the five (5) other venues of violence is set out
before the court, it would become clear that a much larger and
ominous conspiracy was hatched in Pakistan, the aim of which
was to destabilize the country and to wage war against the
Government of India. It would also be clear that all ten (10) G
terrorists, including Kasab and Abu Ismail, who spread out
from Badhwar Park in pairs, were acting in concert and in
execution of the larger conspiracy. Seen thus, the appellant
would appear equally culpable for the carnage and other
offences committed by the other terrorists of the team at H
444 SUPREME COURT REPORTS [2012) 8 S.C.R.
A different places, though admittedly he was not physically
present at the venues of those crimes. Mr. Subramanium
submitted that the course suggested by Mr. Ramachandran
would do grave injustice to the prosecution, nay to the people
of the country who came under a completely unprovoked attack
B and suffered a war waged against them that was encouraged,
monitored, and guided from minute to minute from a command
post based in a foreign land.
267. We are of the view that Mr. Subramanium is clearly
right. The suggestion made by Mr. Ramachandran that the
C appellant should only be held liable for acts committed by him
in the company of Abu Ismail is based on the premise that the
appellant and Abu Ismail were acting independently and
separately from the other terrorists who, on arriving at Mumbai,
went to four different targets. It is contended that though all ten
D (10) terrorists arrived in Mumbai together, on the same inflatable
rubber dinghy, each of the five pairs into which they divided
themselves must be held liable for the actions of the pair alone
and not for what the other four pairs might have done, because
each pair went in a different direction from the landing site. The
E underlying assumption is that the five pairs were not
connected to each other by a common conspiracy and that they
were not acting in furtherance of a conspiracy that was keeping
them bound together even after they had separated physically
in order to execute their assigned roles under the conspiracy.
F We find no basis for such an assumption, even in light of the
prosecution evidence discussed so far. Further, it would be
wrong to proceed on such an assumption even without taking
into account the evidence of conspiracy that the prosecution has
to present with reference to the other aspects of the case and
G the other venues of the terrorist attack.
268. We, therefore, deem it necessary to proceed with the
matter further and to examine the other venues of carnage. But
we propose to scrutinise the other aspects of the case and visit
the other four places of terrorist violence primarily with the view
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 445
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
to see what the prosecution has to offer by way of evidence of A
conspiracy and in support of the various other charges against
the appellant. We do not propose to discuss the evidence
relating to the offences committed by the other eight (8) dead
terrorists at those places in any great detail for the simple
reason that, being dead, they were not on tria I. B
269. After landing at Badhwar Park, the appellant and Abu
Ismail, the leader of the group (deceased accused no.1 ), went
to CST by a taxi. At the railway station they killed as many
people as they could and then left via the foot-overbridge to C
Badruddin Tayabji Marg. They overcame any efforts by the
police to stop them on the sixth floor of the Cama Hospital
building, at the main front gate of the hospital and on Badruddin
Tayabji Marg near Rang Bhavan Lane. In the process, they
killed, among many others, three (3) senior police officers and
grabbed the Qualis vehicle in which they were trying to intercept D
the two terrorists. They were unable to go very far in the Qualis
as one of its wheels was destroyed in the gun fire. They then
commandeered another vehicle, a Skoda, from its occupants
at gun-point. They were driving the Skoda on Marine Drive when
they were finally caught at Vinoli Chowpaty. E
270. The road on which they were travelling goes to
Malabar Hill and their car was headed in that direction. In his
statement before the magistrate, the appellant had said that as
they sat in the Skoda after seizing it from its occupants he had F
asked Abu Ismail where they had to go. Abu Ismail said they
had to go to Malabar Hill. The appellant further asked where
exactly in Malabar Hill, but Abu Ismail said that he would tell
him on reaching Malabar Hill. There is no other evidence that
their destination was actually Malabar Hill. It is also not clear G
as to where exactly they intended to go once they reached
Malabar Hill or who was/were their target(s) there. But it is worth
remembering that the Governor and the Chief Minister of
Maharashtra as well as the Chief Justice of Bombay High Court
all reside on Malabar Hill. It is quite possible that the two H
446 SUPREME COURT REPORTS (2012] 8 S.C.R.
A desperados had anyone among them as their next target.
271. Following the appellant and Abu Ismail, Nazir Ahmad
@ Abu Omair (deceased accused no.4) and Shoaib @ Abu
Soheb (deceased accused no. 9) took a taxi from Badhwar
Park for Leopold Cafe. They were followed by Abdul Rahman
8
Bada'@ Hajazi (deceased accused no.5) and Javed@ Abu
Ali (deceased accused no.8) who went to Hotel Taj by taxi. After
them, lmran Babar@ Abu Aqsa (deceased accused no.2) and
Nasir@ Abu Umar (deceased accused no.3) went to Nariman
C House on foot. After these eight (8) men had left, the remaining
two, namely, Fahadullah (deceased accused no.7) and Abdul
Rahman 'Chhota' @ Saqib (deceased accused no.6) sailed
the rubber boat to Nariman Point from where they just walked
into Hotel Oberoi.
D 272. Here it needs to be made clear that the nine (9) dead
accused could only be known by their respective names after
the appellant identified them through photographs of their dead
bodies 37 • Later he also named them and referred to their
respective roles in his confessional statement before the
E magistrate. Further, the fact that the four terrorists at Hotel Taj
were called Abu Soheb, Omair, Rahman and Abu Ali also
comes in the evidence of Suni/ Rajaram Jadhav (PW-224) and
Nivruti Tukaram Kadam (PW-242). Also, the names of the
terrorists who went to Hotel Oberoi and Nariman House come
F through in the transcripts of their intercepted phone calls, in
which they are talking with their collaborators and to which we
shall advert in due course.
Leopold Cafe: eleven (11) dead and twenty-eight (28)
injured and the Mazgaon blast: three (3) dead and
G nineteen (19) injured
273. Nazir (deceased accused no.4) and Shoaib
(deceased accused no.9) launched an attack on Leopold Cafe
37. See letter dated January 5, 2009 from the Chief Investigating Officer to the
H Police Surgeon, Mumbai, Article 991.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 44 7
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
with grenades and gunfire from AK-47 rifles and left it within A
minutes, leaving behind eleven (11) dead (of whom two (2) were
foreign nationals) and twenty-eight (28) injt:ffed-{ofwhom nine
(9) were foreign nationals). They walked to Hotel Taj, which is
at a distance of about hundred (100) metres to join Abdul
Rahman 'Bada' and Javed who had gone i:lirectly to the Hotel 8
by taxi from Badhwar Park.
274. Nazir and Shoaib were carrying two ROX bombs, one
of which they had planted in the taxi they took from Badhwar
Park to Leopold Cafe38 • The bomb in the taxi exploded at about
10:30 PM while it was going through the Wadi Bunder Road C
in the Mazgaon Area of the city, killing its driver, Fu/chandra
Ramchandra Bind, and its two passengers, Zarina
Shamsuddin Shaikh and her daughter Reema Mohammad
Rabiu/ Shaikh (the mother-in-law and wife, respectively, of
Mohammad Shaikh (PW-176)) and causing injuries to D
nineteen (19) people on the road.
275. The other ROX bomb they planted while on way from
Leopold Cafe to Hotel Taj, in Gokul Wine Shop Lane behind
Hotel Taj, near Gokul Restaurant in front of the State Bank of E
Hyderabad. The bomb, however, did not explode and it was
finally recovered and seized under the Panchnama Ext. no.
736.
Hotel Taj: thirty-six (36) dead and thirty (30) injured
F
276. Abdul Rahman 'Bada' (deceased accused no.5) and
Javed (deceased accused no.8), on reaching Hotel Taj, first put
their ROX bomb near a tree at a distance of about fifty (50)
metres from the porch of the New Taj Hotel. This bomb, too,
dfd not explode and was recovered and seized along with the G
bomb planted by the Leopold-team under the Pam;hnama Ext.
no. 736. They then entered the lobby of the hotel and started
38. See Wasim Ahmed Bashiruddin Shaikh (PW-225) and Mohammad Rabiul
Mohammad Kiramal Shaikh (PW-176) H
448 SUPREME COURT REPORTS (2012] 8 S.C.R.
A firing with their AK-47 rifles on burst mode. Leaving the
commotion behind, they went to the upper floors of the hotel
using its wide winding stairs 39 • On the fifth floor of the hotel they
planted the second RDX bomb, placing it under the central
dome so as to cause maximum damage to the building. Next,
8 they proceeded to the sixth floor where they took Kuttalam
Rajgopalan Ramamoorthy (PW-184) into captivity.
Ramamoorthywas the non-Executive Chairman of ING Vysya
Bank40 and he had gone to Mumbai in connection with a board
meeting of one of the companies. He was staying at Hotel Taj
c
39. All this can be witnessed in the CCTV recording of the Hotel.
40. After having taken Ramamoorthy captive, the terrorists were taking with their
handles and collaborators from across the border on a mobile phone. The
collaborators asked them to find out Ramamoorthy's identity so as to
ascertain whether he was sufficiently important to be used for any bargains
or negotiations with the Indian authorities, Ramamoorthy first said that he
D was a teacher at which the terrorists mocked him, saying how could he
stay at the Taj on a salary of Rupees twenty thousand a month. They
sarcastically asked him whether he was a smuggler and whether he was
teaching hi pupils how to kill Muslims. Ramamoorthy finally disclosed his
true identity.
Before he was able to escape, Ramamoorthy had a most harrowing time with
E his captors, and one may appreciate his plight by recalling a few verses
from a contemporary poem reflective the feelings of a person taken as one
of the hostages by the terrorists.
"I feel entrapped
Just like you do.
You by your acts
F and I by you.
"You target me
yet you are blind
product of an
imprisoned mind.
Your freedom comes
with your last breath
G _ for me. when I
escape from death.
No questions asked
when you wiJI die
those mourning me
will questions why."
(from 'Retaliate' by Kapil Sibal, in My World Within)
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 449
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J ]
Palace in Room no.632 on the sixth floor. A
277. Abdul Rahman 'Bada' and Javed also took four
employees of the hotel as hostages, namely, Adil Rohinton
/rant'' (PW-188), Sunil Jadhav (PW-224), Rajendra Bagade
and Swapnil. In room no.632, Abdul Rahman 'Bada' and Javed 8
were joined by Nazir and Shoaib, coming from Leopold Cafe.
At about 2.15 AM (on November 27, 2008) all four terrorists
came down to the fifth floor, bringing with them all five hostages,
with their hands tied behind their backs, and went into room
no.520. While they were in that room, a call came from Adi/'s C
wife on his mobile phone. Adil was then held captive by the
terrorists who had also taken away his mobile phone. The
terrorists talked to his wife menacingly and asked her to stop
security forces acting against them otherwise they would not
only kill Adil but wreak havoc. All the while, they were engaged
in a long conversation with their collaborators and handlers on D
a mobile phone; these handlers were constantly urging them
to throw grenades and to set fire to the hotel building. While
they were trying to build a fire by setting ablaze inflammable
articles in the room like sofa(s), foam mattresses, curtains, bed
sheets, etc., there was a major blast somewhere in the hotel E
building 42 and heavy smoke started to fill the room. When it
became difficult to breathe inside the room, the four terrorists
came out of the room and in that confusion the four hotel staff
were able to escape through room's window by tying up bed
sheets and curtains into a rope for climbing down. F
Ramamoorthy was unable to climb down by this 'rope' but he
too was able to escape and to reach a window from where he
-was finally rescued by the fire brigade personnel. Having lost
their hostages, the four terrorists settled down in the hotel, taking
G
41. On being questioned by the terrorists, Adil Rohinton Irani gave his name
as Adil, and said that he was a Muslim, in the hope that his eould endear
him to his captors. On the contrary, it only provoked the ire of the terrorists,
who were particularly rough with him, calling him a "traitor Musalman".
42. This was in all probability the explosion of the ROX bomb placed by the
terrorists themselves on the fifth floor of the hotel.
H
450 SUPREME COURT REPORTS [2012) 8 S.C.R.
A position for a long-drawn battle with security forces and
continued their attempts to set fire to the hotel and to destroy it
by whatever means they could. They gave a tough fight to the
security forces till they were finally killed on the morning of
November 29, 2008. The last of the four terrorists at Hotel Taj
B (Abdul Rahman 'Bada) was shot by security forces at 9:00 AM
on November 29, 2008. By that time, the four men had killed
thirty-six (36) people (of whom nine (9) were foreign nationals)
and caused injuries ot various kinds to thirty (30) others (of
whom five (5) were foreign nationals).
C Nariman House: nine (9) killed and seven (7) injured
278. lmran Babar@ Abu Aqsa (deceased accused no.2)
and Nasir @ Abu Umar (deceased accused no.3) had gone
to Nariman House from Badhwar Park on foot. On reaching
0 near Nariman House they first planted an ROX bomb at the
Express Petrol Pump on SBS Road, Colaba. From there they
proceeded to Nariman House, where they planted the second
ROX bomb near the staircase on the ground (parking level
area). 43
E
279. They then entered the upper floors of Nariman House
without difficulty. Nariman House is a six (6) storied (ground
plus five) building. It is a residential-cum-prayer house used by
Israeli people for temporary accommodation. An Israeli priest
F called Gabriel Holtzberge lived there permanently with his wife
Rivka and their two (2) year old son Moshe. They had two (2)
employees. One was Kazi Zakir Hussain (PW-239), who was
provided accommodation on the ground floor, and the other
was a woman called Sandra. Besides these two, they had a
watchman called Kesari who, however, was not present at the
G time of the occurrence on November 26, 2008.
280. On the date of the occurrence there were four guests,
43. Both the bombs planted by the terrorists exploded causing considerabloe
H damage; see Rambuval Chandrapati Tadav (PW-202).
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 451
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
two males and two females, staying with the Holtzberge couple A
at Nariman House.
281. Dinner, on November 26, 2008, was over by 8.00 PM.
And by 9.45 PM Hussain was going down to his
accommodation after he and Sandra had finished their day's
work. On the stairs he saw a person armed with a gun standing
B
on the landing area between the first and second floors. The
gunman fired a shot at Hussain but he was not hit. Hussain
immediately returned to the first floor where Sandra was still in
the hall. On entering the first floor hall, Hussain shut the door
from inside. Gabriel, Rivka and their four guests were at that C
time on the second floor. Hussain and Sandra hid themselves
in the store room, bolting the door from inside and putting off
the lights. They came out of the store room at 11.00 AM on
November 27, 2008. All through the night and in the morning
there had been sounds of gunshots being fired from inside the D
building. While they were trying to get out of the building, they
heard the child Moshe crying on the second floor. They went
up and found Moshe on the second floor hall. Sandra picked
up the boy and brought him out with them. On coming out of
Nariman House they were immediately taken to Colaba Police. E
Station••.
282. It was their exemplary courage, humanity and loyalty
to their employers that saved the child Moshe from certain death
at the hands of the two terrorists.
F
283. The Nariman House episode indeed presents a
shining example of good and proper human conduct in the face
of grave personal danger, but there were also many tragic
killings of innocent people at Nariman House. The two terrorists
took Gabriel, Rivka and their guests as hostages. They first tried G
to use them as bargaining chips to start some sort of
negotiation with the Indian authorities but, when they were
44. See the evidence of Kazi Zakir Hussain (PW-239). H
452 SUPREME COURT REPORTS [2012] 8 S.C.R.
A unable to start any negotiation and as they came under the heat
of the security forces' operation, they simply killed all their
hostages as being expendable baggage and encumbrances
in their fight against the security forces.
284. Apart from the inmates of Nariman House, two other
8 people lost their lives in the most tragic circumstances.
285. Mohammad Salim Harharwala (PW-206) lived along
with his family at 73/4 Faridun Court Building, SBS Road,
Colaba, which is very close to Nariman House. Apprehending
C danger and feeling insecure at Faridun Court because of the
incident of firings in Nariman House, he shifted with his family
to a flat on the fourth floor of Colaba Court, which is situated in
front of Nariman House. This, unfortunately, turned out to be a
fatal decision. In the Colaba flat, he and his parents were
o standing near a window facing Nariman House when, at about
10:30 PM, his parents were hit by bullets fired directly from
Nariman House. They were taken to ST George's hospital
where they were declared dead.
286. From Nariman House the terrorists made random
E firings in all directions and threw hand grenades at adjoining
buildings, roads and lanes that resulted in many injuries.
287. There is another aspect of the Nariman House
episode to which we shall advert in greater detail in the latter
F part of the judgment. From Nariman House the two terrorists,
lmran Babarin particular, were in regular contact on the mobile
phone with their handlers and corroborators across the border.
At one stage, the controllers even tried to use one of their
hostages, Norma Shvarzblat Rabinovich (a Mexican citizen,
G later killed), as an intermediary in an attempt to start some sort
of 'negotiation' with the Indian authorities. The collaborators
tried to tutor her as to what she should speak to the Indian
authorities on the telephone. She was told not to disclose her
own position or the position of her captors inside the house and
H further not to disclose the number of hostages taken by them
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 453
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
but to persuade the Indian authorities to stop the operation by A
the security forces and to negotiate with her captors in order
to save the lives of the hostages.
288. Apart from the collaborators and handlers, lmran
Babar also engaged in dialogues with India TV, a popular news 8
channel in the country, and with one Levi from the US who
apparently intervened as a self-styled mediator to try and save
the lives of the Jewish hostages.
289. The two terrorists holed up in Nariman House, lmran
Babar@ Abu Aqsa and Nasir @ Abu Umar, were finally killed C
by security forces in the night of November 28, 2008. But, by
then, they had been able to kill nine (9) people (of whom five
(5) were foreign nationals) and injure seven (7) people.
Hotel Oberoi: thirty-five (35) dead twenty-four (24) injured. 0
290. Fahadullah (deceased accused no.7) and Abdul
Rahman 'Chhota' @ Saqib (deceased accused no.6) entered
Hotel Oberoi at about 21 :55 hours on November 26, 2008 and
started burst firing in the hotel lobby. In the CCTV recording one
can clearly see a hotel-staff opening a door, coming out and E
going around the reception desk. He gets hit by shots fired by
the two terrorists and slumps down to the floor. They next went
to Tiffin Restaurant, situated in the main lobby of the Hotel, and
fired indiscriminately from their AK-47 rifles. The hotel staff in
Kandhar Restaurant, situated on the mezzanine floor, heard and F
saw them firing in Tiffin Restaurant. At that lime there were fifty
to sixty (50-60) guests in Kandhar Restaurant. The staff
members closed the door of Kandhar Restaurant and bolted it
from inside and started taking out the guests from the rear
(service) door. From Tiffin Restaurant the two terrorists G
proceeded towards Kandhar Restaurant but they found .the
restaurant's entrance door locked from inside. They fired at the
closed doors. One of the shots pierced through the glass pane
and hit Dinaj Sharma, one of the hotel staff, on her right forearm.
They eventually succeeded in breaking open the door and H
454 SUPREME COURT REPORTS [2012] 8 S. C.R.
A.entering Kandhar Restaurant but by that time, fortunately, all the
guests in the restaurant had been evacuated and the two
terrorists found only two hotel employees, namely Jorden and
Pradeep Rammurthy Bengatorkar (PW-212). They threatened
them that they would kill them if they tried to run away. Then they
B asked Bengalorkar to pour liquor on the tables and other items
of furniture from the bottles in the bar counter and handed a
lighter to Jorden, telling him to set fire to the furniture soaked
with liquor. The lighter did not work and they asked Jorden to
make the fire with matchsticks. Jorden took out a matchbox from
c his pocket and tried to set fire to the table cloth. The poor fellow
was so nervous that he was unable to start the fire but, in the
process, he burnt his own hands. As he was wringing his hands
and crying that his hands were burnt, one of the two terrorists,
evidently annoyed at his lack of efficiency as an arsonist, fired
a burst of bullets, killing him on the spot. They then asked
0
Benga/orkar to set the furniture on fire. He somehow
succeeded in setting fire to a table. The terrorists then asked
him to take them to the floor where the hotel's VIP guests were
staying. Bengalorkarentered the lift, as bidden by the terrorists,
E but as their attention was momentarily diverted in throwing hand
grenades he quickly pressed the down button of the lift. The lift
door thus closed and the lift started descending even as the
terrorists fired at its closed door. Bengalorkar thus gave the
slip to the terrorists and saved himself by his presence of mind.
F 291. Fahadullah and Abdul Rahman 'Chhota' then went
to the upper floors of the hotel in search of any VIP guests
staying there. They were unable to find any but they got holed
up there and fought the security forces till they were finally killed
at about 7.00 AM on November 28, 2008. A complete and
G ocular account of the final encounter of the two terrorists with
the National Security Guard (NSG) Commando may be seen
in the evidence of Rajesh Ganpat Kadam (PW-215) who was
the Assistant Chief Security Officer, Hotel Oberoi, and who was
accompanying the NSG C0mmandos headed by Colonel Rathi
H and Lt. Colonel Sharma in the final encounter with the terrorists.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 455
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Before Fahadu//ah and Abdul Rahman 'Chhota' were killed, A
they had left behind thirty-five (35) people as dead (of whom
ten (10) were foreign nationals) and twenty-four 24 injured (of
whom seven (7) were foreign nationals).
THE FIREPOWER, THE TENACITY:
B
292. Just to have an idea of the fire power the terrorists
were carrying, we propose to take a look at the seizure
Panchnamas from Hotel Taj and we note below only some of
the firearms and ammunitions seized under those
Panchnamas: c
293. Exhibit No. 744
1. Seven (7) magazines of black colour. Of them, six
(6) contained live rounds and one (1) was empty
D
2. One (1) cotton bag containing one hundred and
thirty-two (132) live cartridges
3. Five (5) hand grenades
4. One (1) bullet bayonet
E
294. Exhibit No. 746
(1) One hundred and fifty (150) pistol empties
F
(2) Six (6) big empties
(3) Twenty-eight (28) bullets
(4) Ten (10) small empties
\
G
(5) Twelve (12) big empties
(6) Five (5) bullets
(7) One (1) grenade pin
H
(8) One (1) small empty
456 SUPREME COURT REPORTS (2012] 8 S.C.R.
A 295. Exhibit No. 751
1. Three (3) empties
296. Exhibit No. 752
B 1. One (1) pistol with magazine
2. One (1) pistol with empty magazine
297. Exhibit No. 757
c 1. One (1) tin box of size two by four (2x4) inches of
explosives
2. Seven (7) empties
298. Exhibit No. 760
D
1. Four (4) AK-47 (damaged) rifles - one (1) rifle was
with magazine
2. Eight (8) magazines of AK 47
E 3. Two (2) pistols of Star make with one (1) magazine
each
4. One (1) separate pistol magazine
5. Eight (8) 9 mm loose cartridges
F
6. Six (6) 7.62 mm cartridges
7. One (1) 7.62 mm empty
299. Exhibit No. 763
G
1. One (1) bayonet
2. Two (2) magazines were found in a bag lying in the
debris. One of the magazines contained five (5) live
H rounds and another magazine contained two (2) live
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 457
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.)
rounds. A
300. Exhibit No. 910
1. Twenty-one (21) empty cartridges
2. Three (3) live cartridges B
3. Six (6) metal pieces
301. Exhibit No. 1125
1. One (1) pistol manufactured by Khyber Arms C
Manufacturing Company, Peshawar
2. Five (5) magazines of AK-47 rifle, two (2) of them
tied with plastic adhesive tape and the other three
(3) loose and in rusted condition D
3. Twelve (12) live cartridges
4. Two (2) bayonets
302. The seizure Panchnamas from the other venues of E
violence are no less full.
303. It may also be noted here that once the terrorists had
taken position at their respective targets of attack it did not
prove easy to neutralise them or to take them out. The
Maharashtra police was quite unequal to the task and, F
consequently, MARCOS (Naval) Commandos were called in at
Hotel Taj. Finally, the whole operation at all the three places,
Hotel Taj, Hotel Oberoi and Nariman House, was handed over
to the National Security Guards who were able to clear the sites
but not before the terrorists gave them a stiff resistance. The G
second of the two terrorists at Hotel Oberoi was killed at about
7.00 A.M. on November 28, 2008. Nariman House was cleared
in the night of November 28 and Hotel Taj, thereafter, at about
9:00 AM on November 29.
H
458 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 304. The prosecution has documented the episodes at
Leopold Cate, Hotel Taj, Hotel Oberoi, and Nariman House, as
well as the Mazgaon Taxi Blast as exhaustively as it has
documented the incidents at CST, "Cama in", "Cama out",
Skoda robbery and "Vinoli Chowpaty" relating to the appellant
s and his dead companion Abu Ismail.
305. In regard to Leopold Cafe, the prosecution examined
ten (10) witnesses besides producing other kinds of evidence.
Of the ten (10) witnesses, three (3) are eye-witnesses of whom
Nilesh Mahendra Gandhi (PW-478) and Prakash Bharvani
C (PW-479) are injured witnesses. Sudhakar Dattu Deshmukh
(PW-179) is a Police Sub-Inspector of Colaba Police Station
who arrived at the spot shortly after the terrorists had left the
place and gone towards Hotel Taj.
D 306. In regard to the incidents at Hotel Taj, the prosecution
examined twenty-seven (27) witnesses besides two (2)
witnesses summoned by the trial court. Three of them, namely,
Kuttalam Rajgopalan Ramamoorthy (PW-184), Sunil
Rajaram Jadhav (PW-224) and Ad!/ Rohintan Irani (PW-188),
E are witnesses who were taken hostage by the terrorists and who
also suffered injuries at their hands. Annie Irani (PW-255) is
the wife of Adil Rohintan Irani who had called Adil on his mobile
while he was held captive and to whom the terrorists had talked
threateningly. Prakash Sampatrao Bhoite (PW-182) is a Police
F Inspector who discovered the two unexploded bombs planted
near Hotel Taj. Another substantive witness is Captain Anil
Jhakar (CW-3) who is an NSG Commando. The rest are formal
witnesses and panch witnesses.
307. Regarding Nariman House, the prosecution
G examined nine (9) witnesses of whom Kazi Zakir Hussain (PW-
239), Kamal Liladhar Singh (PW-201), Rambuval
Chandrapati Yadav (PW-202) and Hanmant Vishnu
Bhanda/kar (PW-200) are substantive eye-witnesses. Another
substantive witness is Mohd. Salim Harharwala (PW-206),
H whose parents, as we have seen above, succumbed to shots
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 459
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
fired by the terrorists. A
308. Regarding Hotel Oberoi, the prosecution examined
fourteen (14) witnesses of whom Pradeep Bengalorkar (PW-
212), Rajesh Kadam (PW-215) and Lisa Ringner (PW-250)
are substantive witnesses who had personal encounters with
8
the terrorists. The Police Inspector Bhagwat Kachru Bansode
(PW-208) is another substantive witness. The rest are formal
witnesses and panch witnesses.
309. Having thus examined the other venues of the
terrorists' violence, we fail to see how it can even be suggested C
that the appellant and his dead accomplice, Abu Ismail, were
acting separately and that their actions were not connected in
any manner with the offences committed at the other places by
the other eight (8) terrorists with whom they jointly made the sea
journey to Mumbai's shore. To us it is obvious that all five (5) D
teams were bound together and each team was acting in
execution of a common conspiracy.
310. Earlier it was observed that the landing site for the
terrorists at Badhwar Park was selected with great care. Here
E
it must be added that the selection of the targets for attack was
made with even greater care. CST is a place where people
would be present in large numbers, completely defenseless and
helpless, within a relatively small and confined space. The
appellant and Abu Ismail went to CST for numbers and,
according to plan, they were able to kill fifty-two (52) and wound
F
one hundred and nine (109) people. The intention was plainly
to shock and create terror.
311. From CST, the appellant and Abu Ismail were
headed for Malabar Hill, presumably with the intent to take G
captive some very important person there, which would put
enormous pressure on the Government of Maharashtra and the
Central Government.
312. Of the other two teams, one went to Leopold Cafe
H
460 SUPREME COURT REPORTS (2012] 8 S.C.R.
A and then to the Taj Hotel, and the other to the Oberoi Hotel.
Leopold Cafe is a highly popular eating and drinking
establishment, frequented not only by Mumbaikars but also by
domestic and international tourists in large numbers. The Cafe
is open to the pavement, and it is known as a place where one
B can sit at leisure over a cup of coffee or a glass of beer, and
watch bustling Mumbai pass by on the pavement and road just
outside. The attack on Leopold's was meant to kill in large
numbers, including foreign tourists.
313. Hotel Taj is an iconic hotel, part of the history of
C Mumbai 45 • Hotel Oberoi is a modern, super-luxury hotel. These
are places where the upper crust of the country rubs shoulders
with its colleagues and peers from across the globe. The attack
at those two hotels and at Leopold Cafe had a dual purpose.
First, the killing of wealthy and powerful Indians and foreigners
D would not only send shock waves across this country but would
also attract international attention, which is the greatest prize
and inducement for any terrorist group. Secondly the terrorists
hoped to take some 'very important people' as hostages 46
E 45. It is reported that it was at the Taj Mahal Hotel ballroom that, on February
20, 1918 as her eighteenth birthday party. Ruttie had accepted Mr. Jinnah's
hand in marriage while the band was playing the Chopin tune, So Deep is
the Night. It is also reported that both Mr. Jinnah, the creator of Pakistan,
and Mrs. Sarojini Naidu, the President of the Indian National Congress,
often held Court at Taj Mahal Hotel.
Mr. Jinnah also had an intimate connection with Mazgao, where the bomb
F planted by two terrorists in a taxi exploded, killing three (3) and wounding
nineteen (19) people. It is reported that Mr. Jinnah devoted Thursday
afternoons to visiting Iha grave of his wife Ruttie at the Khoja Shiite
lsna'ashri Cemetry, situated at Mazgao, Mumbai.
One wonders what Quaied-e-Azam would have thought of the terrorist
attack on his favourite city in the subcontinent and especially on Taj Mahal
G Hotel, with which he had a personal relationship of a very intimate kind.
46. In conversations (Talks no.3 and 4) on mobile phones between the
terrorists at Hotel Taj and their collaborators from across the border, the
later gleefully tell the former that a minister was trapped inside the hotel
and that, on the orders of the Prime Minister, a helicopter was likely to
come to his rescue, and further that the terrorists should find and catch
H him and not allow him to flee.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 461
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
there; this would, they believed, enable them to negotiate with A
the Indian authorities regarding some highly vague and fantastic
demands.
314. The attack at Nariman House was intended to
somehow involve Israel in the matter and to further
8
internationalize the issue by killing the Jewish and Israeli
citizens living there. For a short while, the terrorists who had
taken possession of Nariman House seemed to be succeeding
in their objective as they were able to establish contact with
someone called Levi in the US, who appears to have rushed C
in as a self-styled intermediary, negotiating to save the lives of
the people taken hostage by the terrorists.
315. Thus seen, the attacks at all five targets appear to
be integrally connected with each other and the appellant and
Abu Ismail are as much part of the offences committed at the D
other places as they are responsible for the offences committed
by them directly. It may even be said that even .if the appellant
was apprehended without firing a single shot and without
personally committing any offence on the soil of India, he would
still have been connected through conspiracy to the offences E
committed by the other four teams of terrorists in whose
company he came to Mumbai. But the above discussion is
meant only to reject the contention made on behalf of the
appellant that, for the purpose of this appeal, there is no need
to go beyond the acts directly attributed to him and his dead F
associate, Abu Ismail. The real and far more tangible evidence
of conspiracy is yet to unfold in the following part of the
judgment.
KU BER:
G
316. To look for evidence of conspiracy, let us go back to
the beginning, i.e., the MV Kuber.
317. It is seen above that the identity of the appellant and
his companion who was killed in the encounter with the police H
462 SUPREME COURT REPORTS [2012] 8 S.C.R.
A at Vinoli Chowpaty first came to light when he made a statement
at Nair Hospiial at 01 :30 hours on November 27, 2008,
disclosing his name, age and address and those of his
accomplice, the dead Abu Ismail.
B 318. In the morning of November 27, 2008, at 11 :00 hours,
Chandrakant Jabardast Jadhav (PW- 42) came to Nair
Hospital to interrogate the appellant, as directed by Pl Vinod
Pandurang Sawant (PW-31) who was till then the Investigating
Officer of the case relating to the occurrence at Vinoli
Chowpaty. At that time, Pl Prashant Kashinath Marde of CB-
C CID (PW-48) was also present at the hospital having gone there
on the direction of his superiors. Jadhav obtained the
necessary permission from the doctor treating the appellant
and, at 13:00 hours, recorded his disclosure statement in the
presence of Marde and two panch witnesses, namely, Pravin
D Ashok Hargude and Bhavesh Mahadeo Takalkar (PW-25).
The statement made by the appellant that first led to the recovery
of the Indian boat on the sea and then to the recovery of the
dead body of its navigator, Amar Singh Solanki, and of the
satellite phone, the GPS and the notebook is as under:
E
"My nine Pakistani associates and I, with an intention to
make Fidayeen attack in India started from Karachi Creek
in one small boat on the twenty-second of this month. We
got Al-Husaini boat in the sea. There were seven persons
F in Al-Husaini boat. Next day, in the afternoon, we caught
Indian boat. We dumped four persons of Indian boat into
Al-Husaini boat. My nine associates and I reached close
to Mumbai about four nautical miles away in Indian boat
with the 'Nakhva' (Navigator) of Indian boat, on the date
twenty-sixth in the afternoon. There my associates Abu
G
Soheb and Ismail and I took 'Nakhva' to engine room and
tied his hands and legs and covered his eyes with black
strip and I slit the neck of 'Nakhva' by a knife and killed
him. I have hidden 'Nakhva's dead-body there only. We
have kept our Satellite phone, G.P. S. and Note-Book in
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 463
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
the vel}' Indian boat and have left the said Indian boat in A
the sea. My nine associates and I with the rifles, bombs
and grenades bags boarded the r-ubber boat and reached
the shores of Mumbai. I will show the Indian boat in which
dead-body of 'Nakhva', Satellite phone, G.P. S. and note-
book are there and the place where 'Nakhva's dead-body B
is hidden and will take out Satellite phone, G.P.S. and
note-book."
(Emphasis added to indicate admissibility under Section
27 of the Evidence Act)
c
319. The disclosure statement recorded by Jadhav was
signed by him and the two panchas. The memo does not bear
the signature of the appellant but there is a certificate by Dr.
Vikaskumar Kashinath Kesari (PW-13) stating that the
appellant was unable to hold the pen due to injuries in his right D
hand (the writing hand) and he was not, therefore, in a position
to put his signature on paper.
320. On the basis of the information received from the
appellant a search was mounted for "the abandoned Indian
E
boat" and it was found and brought to Sassoon Dock in
Mumbai with the assistance of the Coast Guard. The
abandoned boat was first sighted at 16:40 hours at a distance
of six (6) nautical miles (south-west) from the Mumbai shore by
Commandant Malhotra (PW-26) of the Coast Guard, who
made a reconnaissance by helicopter at the request of the F
Additional Commissioner of Police Jagannathan (PW-37). He
kept a watch over the abandoned boat till the Coast Guard ship
"Sankalp-46" arrived there and brought the boat to Sassoon
Docks in Mumbai. 47
G
321. "The abandoned boat" was undeniably an Indian
fishing boat called 'MV Kuber'. It was registered with the port
47. See the evidence of Additional Commissioner of Police Saravanaswamy
Jagannathan (PW-37) and Commandant Prabhdeep Singh Malhotra (PW-
26), and Exhibits no. 172A and 140. H
464 SUPREME COURT REPORTS [2012] 8 S.C.R.
A authorities at Porbandar, Gujarat, and bore the registration no.
PBR2342. Its registered owner was one Heeralal Masani of
Porbandar48 .
322. Deepakkumar Vishwanath Dave (PW-46), who was
B the Superintendent of Customs, Porbandar, testified before the
court that Creek Pass No. CH/PBR/174 was issued to the
fishing vessel Kuber on August 16, 2008, for the period August
16 to December 31, 2008. He produced the office copy of the
Creek Pass bearing his signature (Exhibit 201 ). He further
stated that the owner of the vessel was one Hiralal Masani and
C its Tandel was Amarsingh Solanki.
323. Vinod Babula/ Masani (PW-43) stated that his was
a fishing family and.owned six (6) boats, including MV Kuber.
He added that he looked after the family business. Masani
D further stated that the Kuber and another fishing boat of the
family called Maa had gone out to the sea on November 14,
2008. Both boats were scheduled to return to Porbandar within
ten (10) to twelve (12) days. The boat Maa returned to
Porbandar on November 25 but there was no information about
E the Kuber. The Tande/ of Maa only said thatthe two boats had
separated as a result of a storm in the sea. Masani first heard
of the Kuber's fate at 5:00 PM on November 27, 2008, on
getting a phone call from a Coast Guard officer in Mumbai who
made a detailed enquiry from him about the boat and asked
F him to come over to Mumbai. He went to Mumbai on December
2, 2008, and found the boat anchored at Mela! Bandar,
Sewree, Mumbai, and came to learn that the Nakhva of the
boat, Amar Singh Solanki, had been killed by the terrorists who
had captured his boat on the sea.
G 324. While the Kuber was being searched and brought to
Sassoon Docks, the investigation of the case was assigned
to the Crime Branch and, at 21 :25 hours on November 27,
2008, when the appellant was discharged from Nair Hospital,
H 48. See Exhibit no. 160, the office copy, of the original registration certificate.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 465
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Marde took him in his custody. Marde brought the appellant to A
the office of the DCB-CID, Unit 3, Lower Pare!, where the
appellant was formally arrested by him between 22:30 and
22:45 hours in CR No.182/2008 (vide Arrest Memo Ext. no.
215). At 22:45 hours, Marde received a call from Jadhav
requesting him to bring the appellant to DB Marg Police Station B
where information was received in the meanwhile that the
vessel Kuber had been brought to Sassoon Docks. Marde
reached DB Marg Police Station along with the appellant at
23:10 hours and, at 23:30 hours, Marde and Jadhav, along with
the appellant and the two witnesses of the disclosure statement c
Panchnama, namely, Pravin Ashok Hargude and Bhavesh
Mahadeo Taka/kar (PW-25), left for Sassoon Docks and
reached there at 00:00 hours.
325. On reaching Sassoon Dock, they went near a
wooden boat brought from the sea that was anchored near the D
jetty, alongside a launch of the Yellow Gate Police Station called
'Amboli'. On seeing the two, the appellant identified the wooden
boat as "the Indian boat" in which he, along with his nine
associates, had approached the Mumbai shore and on which
he had killed the 'Nakhva' of the boat, whose body he had kept E
in the engine room. The appellant then led the police team and
the panchas to the engine room and showed them the dead
body of a male that was kept in the corner near the ladder. The
body's hands were tied at his back and the body was kept in
a supine position. The appellant then proceeded to take out a F
satellite phone, a GPS and a notebook that were kept
concealed under a wooden plank in the engine room on the left
side of the dead body. He took out these three articles and
handed them to the police team. The articles that were taken
out and produced by the appellant from the engine room of the G
Kuber and were seized under the panchnama (Ext. no. 138)
may be described as follows:
(1) One satellite phone in black cover, make:
HUGHES, THURAYA 7101; !MEI no.352884-00- H
466 SUPREME COURT REPORTS (2012] 8 S.C.R.
A 054152-6; assembled in EU; MCN: 8008211-
0006; SIM CARD-THURAYA 89882 05980 80530
6377; the battery had the words 'Assembled in
France' inscribed on it.
(2) One black colour GPS, make: GARMIN; model-
B
GPS 12 MAP S/N 98205626; made in Taiwan.
(3) One notebook with cover in faded green with
writings and jottings in Urdu on various pages.
c 326. Another seizure Panchnama, Exhibit no. 182, in
respect of all the other articles found on the boat, was drawn
up in the presence of panchas. Chandrakant Jabardast
Jhadhav (PW-42) deposed that nearly 145 articles were seized
and enumerated under the Panchnama Ext. no. 182. He also
0 gave a list to the court of those articles recovered from the
Kuber that are not normally found on a fishing boat. This list of
articles given by Jhadhav to the court is as under:
(1) Six (6) pieces of foam of pink colour
E (2) Fourteen (14) blankets
(3) Two (2) shawls
(4) One (1) mattress
F (5) One (1) empty bottle of cold drink*
(6) One (1) scarf used at the time of Namaj
(7) Four (4) caps
G (8) Six (6) T-shirts
(9) Six (6) pants (one of the pants was branded with
the name of a Pakistani manufacturing company,
i.e., "South Pole")
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 467
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
(10) One (1) shirt4 9 A
(11) Fifteen (15) jackets
(12) Seven (7) tooth brushes
(13) Shaving razors B
(14) One (1) tube of shaving cream*
(15) One (1) tube of tooth paste *
(16) One (1) empty sugar bag* c
(17) One (1) empty paper bag of wheat flour*
(18) Two (2) air pumps
(19) Four (4) packets of detergent powder (Brand name D
'PAK')*
(20) Empty containers of Nestle milk powder*
(21) Eight (8) cans of oil having a capacity of fifty-five
(55) litres each(One of the cans had markings of E
'Gulf and 'Karachi')
(22) Five (5) barrels of diesel (One of them was empty)
(23) Five (5) containers of colour spray
F
(24) One (1) dagger
(25) One (1) knife
49. It may be stated that the witness was giving the list of the articles from his G
memory. At this stage, in answer to a court question, he sought permission
to refer to the Panchnama Ext. no. 182 and, on referring to the Panchanama,
he said that there were fourteen (14) to fifteen (15) shirts.
• A reference to the panchnama, Ext. no. 182 would show that each of these
articles had markings/writings that unmistakably indicated that all the
articles originated in Pakistan.
H
468 SUPREME COURT REPORTS [2012) 8 S.C.R.
A (26) One (1) pair of scissors
(27) Three (3) boat covers made of tarpaulin
(28) Floor cleaning brush (made in Pakistan)*.
B 327. Of course, the panchnama Ext. no. 182 contains a
much longer list of articles that were recovered from the Kuber
and seized under the Panchnama. The following articles listed
in the Panchnama may be added to the list given by Jadhav
(PW-42), of articles that are not expected to be found on a
c fishing boat of Indian origin:
(1) Six (6) inch steel spanner with writings thereon in
Urdu, and spanners having pictures of a gun, as
well as a big knife with a four (4) inch wooden hilt
D (2) Empty packets of fifty (50) bullets for 30 bore pistol,
made in China
(3) Nylon rope meant for unloading goods from the big
ship to the small one, having a round knot on one
E side
(4) Pieces of silver foil used to consume drugs
(5) One match-box with the mark 'Hockey' of Fazal
Sons match industries, Pakistan
F
(6) One (1) white plastic container with a red lid
inscribed with the words 'National Food', and with
its contents listed in both English and Urdu
(7) One (1) khaki-coloured paper cover with writing in
G Urdu
328. It may be added here that Vinod Babula/ Masni (PW-
43), on being shown the satellite phone, the GPS and the other
articles recovered from Kuber and seized under the two
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 469
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Panchnamas (Ext. nos. 138 and 182), told the court that those A
articles did not belong to him nor were those articles on board
when the boat had sailed out to sea from Porbandar on
November 14, 2008.
329. One of the three articles that were produced by the B
appellant before the police after taking them out from their
hiding place on the Kuber, and that were then seized under the
Panchnama Ext. no. 138, is a thin notebook, loosely stitched
with a faded green cover (Ext. no. 174).
330. The first page of the notebook contains the guard duty C
roster under the heading '24 Hours - Entire Journey'. The guard
roster is made in the following manner:
Fahadulla + Saqib + Sohaib -morning 6 to 8
D
Ali + Hejazi + Umer - morning 8 to 10
Ismail + Mujahid + Umar - morning 10 to 12
331. At 12:00 PM, the first team would again take over for
the next two (2) hours followed by the second and third teams E
for two-hour shifts_ each, and the roster would thus go on till the
next morning.
332. On the second page on the right side there is a list
of the following articles:
F
(1) Biscuit (Candy + Bakery)
(2) Sewayyan 51 fine
(3) Flour red
G
(4) Drum (for luggage with lock)
333. On the left side there is another list of the following:
51. Vermicelli. H
470 SUPREME COURT REPORTS (2012] 8 S.C.R.
A (1) Phone number of this place
(2) Satellite number of this place
(3) Photocopies of maps
B (4) SIMs for mobile sets
(5) T-T Pistol 2 in number
(6) Mineral water Aquafina
C (7) Dates good (quality) 10 kilo
(8) Current store charger
(9) GPS or navigator
D (10) Satellite + Phone card
334. The third page contains a list of code words:
(1) Halat theek hain (All is well) Macchli
lag rahi hai (Fish are coming)
E
(2) Civil Boat Bhai log (Brothers)
3) Navy Boat Yaar log (Friends)
4) Navy Ship Yaar logon ka group (Group of
F friends)
5) Engine Machine
6) Madad (help) Maal (Goods)
G 7) Safar (journey) Barf (Ice)
335. Below the above codes it is written that the one who
gives GR would add three and the taker would himself deduct
three.
H
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 471
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
336. And below that there is a reminder that the satellite A
is to be kept open (10:00 AM to 10:00 PM).
337. On the next page there is another list of the following
articles:
(1) Gun - 1 in number B
(2) Magazine - 8 in number
(3) Grenade - 8 in number
(4) GPS - Group - 1 c
(5) Dagger - 1 in number
(6) Additional rounds
(7) Mobile + Batteries D
338. On the next two pages there are some figures
indicating degrees, minutes and seconds.
339. On the next page, there is the number E
23270972879217 written on the top and below it the names
of the following places in Mumbai:
Qulaba Cuff Parade
Macchlimaar Nagar Rajabhai Tower Reg a I
Chowk Nathalal Marg Nariman F
Point WTC
Regal Cinema.
340. On the last page there are once again some figures
indicating degrees, minutes and seconds. G
341. The Thuraya satellite phone and the GARMIN GPS
recovered from MV Kuber, along with four other GPS devices
recovered from the other sites of terrorist violence, were sent
for forensic examination to the United States Federal Bureau
H
472 SUPREME COURT REPORTS [2012] 8 S.C.R.
A of Investigation (FBl) 52 where the data stored in the GPS
devices were analyzed by Daniel Jackson (PW-152) who was
working in the FBI as Electronic Engineer/Forensic Examiner.
He had vast experience in his field of specialty, particularly
mobile phones, GPS devices, I-pods, etc., and he stated before
B the court that before examining the devices sent by the Mumbai
Police he had examined over a thousand electronic devices in
the Bureau's laboratory. He had marked the satellite phone and
the five (5) GPS devices sent for data retrieval and analysis
as 0119, 0120, 0121, 0122, 0123 and 0124. 0119 and
c 0120 were marks given by him to the satellite phone and the
GARMIN GPS device recovered from MV Kuber. 0123 and
0124 were the other GARMIN GPS devices that were
recovered from Taj Hotel. 0121 was, in all probability, recovered
from Nariman House and 0122 from Oberoi Hotel. 0121 and
0122 were Magellan GPS devices and the data in those
D devices were irretrievable as the internal batteries of the two
devices had discharged.
342. Jackson stated before the court that his examination
of the satellite phone and the five GPS received by him from
E the Mumbai Police commenced from February 11, 2009, and
was completed on February 18, 2009. He explained to the court
that to retrieve the data from a GPS device, the device must
be connected to a computer and the data is then copied on
the computer. Software is then used to examine the data copied
F on the computer. He stated that he had made his report after
examining all the devices. He had copied the data from the
GPS devices on the computer and, from the computer,
recorded the data on a CD. He identified the CD, Article 517,
G 52. It may be noted here that among the one hundred and sixty-six (166)
persons killed in the terrorist attack, six (6) were US citizens. Consequently,
FBI case no. LA252196 was instituted and investigations were also made
in America. This faciliated some coordination between the investigating
agencies in the two countries. The FBI rendered some forensic assistance
to investigators in India and also responded to some lettergatories sent
by the Indian court (See PW-153, Geoffrey Maron, Special Agent, FBI).
H
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 473
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
in court. He also identified the physical copy ("Derivative 2") that A
bore his signature and was marked Ext. no. 601 collectively.
He further explained to the court that the waypoints on the GPS
were locations that might be latitude and longitude and those
waypoints could be saved on the GPS. He further stated that
he had prepared the maps with the help of the GARMIN B
software on the basis of the waypoints retrieved from the GPS
0120.
343. Jackson said that "JALA 1" and "JALA 2" were the
names used by the user of GPS 0120. The waypoints list of C.
0120 showed that the waypoints between Karachi and Mumbai
were saved on the device. The route shown on page No.36 of
the annexure to his report showed the intermediate waypoints
stored by the user and those waypoints were between Karachi
and Mumbai. The first waypoint was in the ocean of the Gulf of
Karachi and the last waypoint was in Mumbai. He added that D
page No.38 of the annexure to his report showed the track back
route from Mumbai to the Gulf of Karachi. Page No.38 showed
the waypoints of the journey of the user from 'OCEN1' to
'OCENA'. He explained that 'OCEN1' was the coast of
Pakistan and 'OCENA' was the coast of Mumbai. E
344. The maps prepared by Jackson (PW-152) were
based on printouts of computer generated images. To make
the maps even more explicit, the prosecution examined
Sandeep Siddhlilngappa Shivangi (PW-161). Shivangi, who F
had completed the course of Master Marine in the year 1998,
was working at the relevant time as Professor (Nautical Officer)
in Lal Bahadur Shastri College for Advance Maritime Studies
and Research. He stated before the court that, on February 24,
2009, he was called to the office of DCB CID where Inspector G
Chavan had shown him the printouts taken from two GPS
devices. The printouts showed the waypoints. He was required
to plot those waypoints on maps. He had brought two maps
from his college and one printed map was purchased from the
market. On being shown pages No.3 & 54 of Ext. no. 601
H
474 SUPREME COURT REPORTS [2012] 8 S.C.R.
A collectively, he stated before the court that on page No.3 of the
Exhibit, the waypoints were described as JALA 1, JALA 2,
JALA 3 and JALA 4. He was required to plot those waypoints
on a printed map. He had plotted those waypoints by means
of a parallel ruler. The maps on which those points were plotted
B by him were shown to him in court. He said that the points were
in his handwriting and the map bore his signature. The map was
marked as Ext. no. 651. To have a closer view of the waypoints,
he had also plotted waypoints no. JALA 3 and JALA 4 on
another map (marked Ext. no. 652). The waypoints described
c as OCENS1, OCENS2, OCENS3 and OCENSA were also
plotted on the map Ext. no. 651. He explained that the 'OCENS'
waypoints showed the route from south of Pakistan to south
Mumbai. The JALA waypoints showed the route from Gujarat
to South Mumbai.
D THE DNA CONNECT:
345. It is seen above that among the articles recovered
from Kuber were a number of blankets, shawls and many other
items of clothing. The stains of sweat, saliva and other bodily
E secretions on those articles were subjected to DNA profiling
and, excepting lmran Babar (deceased accused no.2), Abdul
Rahman Bada (deceased accused no.5), Fahadul/ah
(deceased accused no.7) and Shoaib (deceased accused
no.9), the rest of the six accused were connected with various
F articles found and recovered from the Kuber. The appellant's
DNA matched the DNA profile from a sweat stain detected on
one of the jackets (see report Ext. no. 205-F). A chart showing
the matching of the DNA of the different accused with DNA
profiles from stains on different articles found and recovered
G from the Kuber is annexed at the end of the judgment as
Schedule No. Ill.
THE INFLATABLE RUBBER BOAT:
346. From Kuber, in order of sequence, we come to the
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 475
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
inflatable rubber dinghy on which the appellant and the other A
nine dead accused landed on Mumbai's shore. It is seen above
that Prashant Hemnath Dhanu (PW-29) had found the rubber
dinghy abandoned at Nariman Point and had towed it back to
Badhwar Park between 9:45 PM and 10:00 PM, on November
26, 2008, and informed the Coast Guard regarding the dinghy. B
At 23:00 hours on the same day, the dinghy and the articles
found in it were seized by Sub-Inspector of Police Anil Kamb/e
in the presence of two panch witnesses, namely, Parshuram
Kashinath Meher (PW-34) and Prakash Krishna Naik under
Panchnama Ext. no. 162. From the seizure Panchnama it c
appears that fourteen (14) articles were seized along with the
rubber dinghy. Of these, we may take note of the following:
1. A Yamaha Enduro outboard motor of 40
horsepower, fitted to the dinghy.
D
2. Eight (8) life jackets of saffron (red) colour on which
was written "Made in China, MYC 86-5 model,
make year 2006" bearing serial numbers 0404663,
0404725, 0404731, 0404766, 04404847,
0404974, 0404869 and 0404996. E
3. One (1) red fuel box on which was written
"GASOLINE".
4. One (1) glue tube in one (1) plastic bag, on which
was written "Samad Rubber Pvt. Ltd., Ferozpur F
Road, Lahore, Pakistan".
5. One (1) blue oil can with "Shell, Advance Sport HT
20 W 50 Motorcycle oil" written on it, of 0.7 litre and
one (1) plastic bag containing tools for repairing a G
boat.
The Yamaha outboard machine that was fitted to the
rubber dinghy is of special significance for the case.
347. Gata/a (PW-30), who was a Marine Engineer and H
476 SUPREME COURT REPORTS [2012) 8 S.C.R.
A who was working as Service Supervisor in George Maijo
Industries (P) Ltd., stated before the court that his company was
the authorized importer of Yamaha outboard machines (OBMs)
in India. The head office of the company maintained record of
all the OBMs imported and sold in India. He further stated before
B the court that he was called to the Crime Branch Office of the
Mumbai Police and there he had inspected one Yamaha OBM.
He was shown an inflatable rubber speed boat and the OBM
of Yamaha make by Inspector Kale (PW-47). He had inspected
the OBM and on examination he had found certain numbers on
C different parts of the engine. He had noted down the numbers
in his diary and he had brought the diary to the court and he
could tell those numbers from his diary (Ext. no. 147). He stated
before the court that the Engine Bracket Number of the OBM
shown to him was 67602E-3; the CDI number was 6F6-01 F 8
T 411727 Y 09; and the sticker on the unit showed engine
0
number as 1020015. The size of propeller was 11x15-G. He
further stated that his company was the sole authorized importer
and dealer of Yamaha OBMs in India. The verification of those
numbers from the company's head office confirmed that the
engine examined by him was not imported and sold by their
E company. He identified in court the OBM, Article 157 that was
examined by him.
348. The other witness in this connection was Pat Williams
(PW-154), whose evidence was recorded through audio-video
F linkage while he was sitting in the office of the FBI at Los
Angeles, USA. One Geoffrey Maron (PW-153) who was
working as a Special Agent of FBI identified Paul Orphanides
as an FBI Agent of Los Angeles Office. Paul Orphanides, in
turn, identified Pat Williams to the court. Pat Williams stated
G to the court that he was working as Senior Product Specialist
in Yamaha Motor Corporation. The head office of his company
was situated at Cypress California, US, and they were
manufacturers of outboard machines, motor cycles, scooters,
etc. Some of those items were manufactured at the US
H manufacturing unit but outboard machines were manufactured
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 4 77
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
in Japan, not the US. He further stated that the outboard A
machine could be identified on the basis of the serial numbers
on the motor bracket and the engine, and that the last seven
(7) digits of the number identified the motor boat. There would
never te mare than one OBM having the same last seven (7)
digits of serial number for the same size of machine. He further B
stated that Yamaha outboard machine Enduro 40 bearing serial
number #1020015 was dispatched to 'Business and
Engineering Trend' from Japan to Karachi Sea Port in Pakistan
on January 20, 2008.
c
349. A letter dated February 17, 2009, written on the letter
head of Yamaha Customer Support Group under the signature
of one Michelle Tejeras (Assistant Manager - Service Support)
and addressed to the US Department of Justice, Federal
Bureau of Investigation, was shown to Williams. On being D
shown the letter Williams stated to the court that he knew Ms.
Michelle Tejeras who was the Assistant Mapager (Service) of
Yamaha Motor Corporation, US, and with whom he had been
working for at least six to seven (6-7) years. He could identify E
her signature and he proceeded to identify the signature of Ms.
Tejeras on the aforesaid letter dated February 17, 2009,
whereupon it was marked Ext. no. 604. The letter of Ms Tejeras
Ext. no. 604 was as under:
F
"February 17, 2009
U.S. Department of Justice
Federal Bureau of Investigation
11000 Wilshire Blvd., 17th Floor
Los Angeles, CA 90403 G
Attention: Special Agent Geoffrey Maron
Re: File No. LA-252196
H
0
478 SUPREME COURT REPORTS [2012] 8 S.C.R.
A Dear Mr. Maron,
This letter is to confirm the conversation on February 13,
2009 between our Yamaha representative and
representatives from your location.
B
We have contacted Yamaha Motor Co., Ltd. regarding
Yamaha Outboard Enduro 40, model E40JMHL serial #
1020015 to confirm the following:
c Country of production: Japan
Destination for export: Islamic Republic of Pakistan
Distributor: Business
and Engineering Trend (BET)
Within the scope of my employment with Yamaha Motor
D
Corporation, I am authorized to provide this information.
Sincerely,
Michelle Tejeras
E
Asst. Manager-Service Support
Cc: SR# 1-9130852."
THE PINK-COLOURED FOAM, THE TERRORISTS'
SIGNATURE:
F
350. From the rubber dinghy that touched Mumbai's shor~
at Badhwar Park, we return to CST. We have earlier seen the
absolute mayhem created by the appellant and his associate,
the dead Abu Ismail, at CST railway station. We now re-visit
G the place looking for any evidence of conspiracy that might bind
them with the other eight terrorists who were on a similar
murderous spree at other venues in the city. What we find at
CST appears quite innocent, something as ordinary as a piece
of foam, pink coloured foam. But that piece of foam inseparably
H
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 479
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
connects the appellant to the other eight terrorists. As we A
proceed further, we will find the pink foam running like a thread
through all the episodes and connecting them as integral
pieces of one single, horrible drama.
351. We may recall here that the pink foam first appeared
B
among the many articles found and seized from MV Kuber. In
Ext. no. 182, the seizure Panchnama regarding the articles
found and seized from the Kuber, it is listed at serial no. 10 as
"Six (6) pieces of pink colour foam of different sizes". Serial
no.13 of the Panchnama mentions a "six (6) inch stainless steel C
pair of scissors".
352. The pink foam is also present at CST. While dealing
with the attack on CST in the earlier pages of the judgment, it
was noted that before opening fire from his AK-4 7 rifle, Abu
Ismail, the dead companion of the appellant Kasab, had put a D
bag carrying the RDX bomb among the passengers' luggage
in the waiting hall. Luckily, however, the bomb did not explode.
After the carnage was over, the authorities collected the
passengers' unclaimed belongings, lying scattered all over CST
Railway Station, and put them all at one place. It appears that E
the bag containing the bomb was also picked up and was kept
along with this collected baggage. In the process of returning
the luggage pieces to their respective owners who came
forward to claim their belongings by-and-by, a suspicious red-
and-black sack-bag was discovered lying in the baggage. F
When .the bag was inspected by police officials, it was found
that it contained explosives which were later diffused by
personnel of the Bomb Detection and Disposal Squad. A
seizure Panchnama, Ext. no. 269, was drawn up on December
3, 2008, at 19:00 hours in the presence of two panchas, G
namely, David Raj Thomas and Sham Ratan Dhake. From the
Panchnama it appears that inside the red-and-black nylon sack
bag, there was a locked square tin box containing the
indigenous explosive device (IED). The .tin box was covered
on all sides by a piece of pink colour foam!
H
480 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 353. From CST, the appellant and his dead associate had
gone to the terrace of the Gama Hospital building where they
had an encounter with Sadanand Vasant Date (PW-118) and
his team. After the episode was over, a search was made and
a large number of articles were collected and seized from the
B premises of the hospital and from different parts of the hospital
building, particularly its terrace, from where the appellant and
his dead accomplice had battled Date and his team. The
seizure of the articles found on the building's terrace was made
under the Panchnama dated November 27, 2008, Ext. no. 486.
c One of the articles seized from the terrace of the Gama Hospital
building was a blue, purple and black coloured rexine bag that
could be carried on the back by fastening the belts around the
shoulder and the waist. The bag had the words "CHANGING
THE TIDE" printed on it. Inside the bag, there were several
articles including a pink foam piece "51 c.m. x 193 c.m. x 1
0 53
c.m. in size".
354. It may further be noted that two (2) other bombs
placed by the terrorists near and around Taj Hotel had failed to
explode. One bag containing the explosive was picked up from
E near a tree near Quni Tourism Chowki at a distance of fifty (50)
metres from the porch of New Taj Hotel; and the other was found
near Gokul Restaurant in Gokul Wine Shop Lane in front of the
State Bank of Hyderabad. Both the bags containing explosives
were seized under the Panchnama dated November 27, 2008,
F Ext. no. 736, in the presence of panchas Hiteshchandra
Vijaykumar Awasthi and Amarnath Ramvilas Yadav. In the
Panchnama the description of the first explosive is given as
follows:
"One black colour carrying bag containing rectangular
G
metal coniainer approximately measuring 10" -10" 0-2, 5"
with a metal cover on the top and latch on the side,
covered by pink colour foam from all sides. The firing
53. The full description of the pink foam is given at Exhibit no. 32, in the
H Panchnama dated November 27, 2008, Ext. no. 486.
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 481
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
mechanism electronic timing device, one white paper A
written in Urdu and English stuck upon the electronic timer,
two 9-V durasale (sic.) batteries, 2 electrical
detonators ....... "
355. The description of the second explosive is as follows:
8
"One rectangular metal container approximately measuring
10"-10"-0-2.5" with a metal coveres (sic.) on the top and
latch on the side. Covered by pink colour foam from all
sides. The firing mechanism electronic timing device, one
white paper written in Urdu and English stuck upon the C
electronic timer, two 9-V durasale (sic.) batteries, 23
electrical detonators ...... "
356. The pink foam reappears in one of the bags of blue
and dark-blue colour that was found in Wasabi Harbour Bar D
1933 of the Taj Mahal Hotel. This bag is one of the articles
seized under the Panchnama dated November 29, 2008, Ext.
no. 749, in the presence of the panchas lshwar Mahadeo
Kolekar and Vaibhav Vilas Patil. In the Panchnama the bag
is described as follows:
E
"One blue and dark blue colour bag, of the height of about,
two and quarter feet and 1 foot in width having two belts
(strips) for carrying on the back and a blue (strip) of 5 inch
in width for tying around the waist bearing the words in
English as "CHANGING THE TIDE" in black colour and a F
picture in saffron, parrot green and blue colour on the bag
and light pink colour foam of the size of about 2 feet in
length and 1Y, feet in width in the bag."
357. It is obvious that the foam was used to provide G
padding and cushion to the IEDs and the hand grenades kept
in the bags so as to prevent them exploding accidentally while
the terrorists were carrying them on their person.
358. The foam pieces recovered from the Kuber and found
H
482 SUPREME COURT REPORTS [2012] 8 S.C.R.
A in the bags that were picked up from CST, the terrace of the
Gama Hospital building and the two bags containing
unexploded IEDs found near Hotel Taj and seized under the
Panchnama, Ext. no. 736, were sent for chemical examination
at the Forensic Science Laboratory.
B
359. Rajendra Ramchandra Mavle (PW-247) is the
forensic expert who deposed before the court that all the foam
pieces tallied with each other in respect of hue (appearance)
and physico-thermal characteristics. He further stated to the
court that the foam pieces were examined by him under
C 'Differential Thermal Analyser' and that they were found to be
similar in thermal characteristics. Mavle concluded that the
source of all the foam pieces was the same. He identified his
report before the court, marked as Ext. no. 1013.54
D INTERCEPTED PHONE CALLS RECORDS:
360. The most clinching evidence regarding conspiracy
comes from the recordings of intercepted telephone calls
between the terrorists and their co-conspirators and
E collaborators sitting in a foreign land that, in light of the over all
facts and circumstances of the case, can only be Pakistan.
Unlike the appellant and his dead companion, Abu Ismail
(deceased accused no.1), who were constantly on the move,
the other terrorists had gone to Hotel Taj, Hotel Oberoi and
F Nariman House and were holed up there, even taking hostages
54. See Ext. no. 182 and PW-41 Gorakh Nalawade (for seizure of the foam
pieces on Kuber), Ext. no. 269 a~d PW- 74 Pandharinath Yeram (for seizure
of the foam pieces from CST), Ext. no. 486 and PW-115 Nazimuddin Sheikh
(for seizure of the foam pieces from Gama Hospital) & Ext. no. 736 and
PW-182 Prakash Bhoite (for seizure of the foam pieces from Hotel Taj):
G The foam pieces were numbered in the forensic science laboratory as Ext.
no. 75 ofDNA-443B-08 in Ext. no. 1011 (on Kuber), Ext. no. 1 M. 494-08 in
Ext. no. 1012 (from CST), Ext. no. 53 of BL No. 990/C/08 in Ext. no. 1009
(from Gama Hospital) and Ext. no. 1 of M. 516-08 & Ext. no. 3 of M.516-08
in Ext. no. 1010 (from Hotel Taj): And finally see the deposition of the
Forensic Examiner Ramchandra Malve (PW-247) and his report Eel. no.
1013.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 483
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.J
for some time. From their respective positions they were in A
regular contact with their collaborators and were constantly
receiving moral support, tactical advice and guidance from them
by means of mobile phones.
361. The phone calls made by the terrorists from Hotel Taj,
8
Nariman House and Hotel Oberoi came to be noticed and were
intercepted by a watchful member of the Anti Terrorist Squad.
362. Nivruti Tukaram Kadam (PW-242) was an Inspector
of Police attached to the Anti Terrorist Squad (ATS), Mumbai.
He was looking after the technical wing of the ATS, which was C
assigned the tasks of collecting intelligence, phone
interceptions and data analysis. On the night of November 26
to November 27, 2008, he was on duty in his office at Nagpada,
Mumbai. At midnight of November 26, 2008, he received
information that terrorists were making regular calls from mobile D
phone no.9910719424.
363. In normal circumstances, a telephone interception can
only be done after getting sanction from the Government but in
an emergency, interception is permissible with the approval of E
the immediate superior who, in this case, was the officer in-
charge of the ATS.
364. Hemant Karkare, Special IG, was the chief of the
ATS and, as seen above, he was killed by the appellant and
Abu Ismail around midnight of November 26, 2008, when the F
two terrorists had snatched a Qualis police vehicle after killing
him and two other officers and policemen who were travelling
in that vehicle. Following the killing of Karkare, Param Bir
Singh (PW-241), Additional Commissioner of Police and
Karkare's deputy, had assumed charge in his place. Hence, G
Kadam (PW-242) obtained Param Bir Singh's written
permission for intercepting calls from mobile phone
No.9910719424. The permission granted by Param Bir Singh
was later accorded post-facto sanction by Chitkala Zutshi (PW-
253), who was at that time the Additional Chief Secretary, H
484 SUPREME COURT REPORTS [2012] 8 S.C.R.
A Home Department, Government of Maharashtra.
365. On the basis of the permission granted for
interception, directions were given to the service provider of the
aforesaid phone number (Bharti Airtel) and to all other service
providers, since the number was in 'roaming', to transfer all
8
calls from or to that number to the police landline number
02223053162. The calls made from or to the aforesaid mobile
number thus diverted to the police land line could then be heard
on headphones or the speaker of a computer with the aid of
appropriate software. The ATS office had software called
C 'Shogie' installed in the office computer for that purpose.
366. Kadam stated before the court that the first
conversation recorded by him from tha1 mobile number
commenced at 01 :04 hours on November 27, 2008, and the
D last call from that mobile number was recorded by him at 10:27
hours of November 27, 2008. He further stated before the court
that the conversation was being heard by him personally and
being recorded on the hard disk of the computer
simultaneously. The recordings from the hard disc of the
E computer were copied on to CDs and the conversations
recorded on the CDs were later transcribed on paper.
367. He further told the court that, from the conversations
made from mobile phone number 9910719424, he could make
out that the callers from that phone were speaking from Hotel
F Taj and that their names were Ali, Umar, Abdul Rehman and
Shoeb. The two persons on the other end were called
Vashibhai and Kafabhai.
368. In course of the night, Kadam came across two other
G mobile phone numbers, 9820704561 and 9819464530. The
first of these two was being used by the terrorists at Hotel
Oberoi and the second by those at Nariman House. After
obtaining th~ necessary permissions in regard to those two
phone numbers following the same procedure, Kadam
H intercepted and recorded the conversations made from those
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 485
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
two phone numbers also. He stated that the interception of these A
calls by him commenced at 01 :04 hours on November 27,
2008, and the last call from one of these numbers concluded
at 08:52 hours on November 28, 2008. The total recordings of
intercepted phone calls were spread over twelve (12) hours and
thirty-three (33) minutes. B
369. The CDs recording the intercepted phone
conversations were played in court on a laptop and, on
comparing the recorded voices with the written transcripts,
Kadam told the court that, except for a very, few minor errors,
the transcripts were accurate. He then proceeded to identify all C
the different CDs recording conversations from the three
different mobile numbers and the transcripts of conversations
made from those CDs.
370. Significantly, Kadam told the court that all the calls D
from the above three mobile phones were made to a single
number, 012012531824, which later investigation revealed to
be the number of private Corporation based in New Jersey,
USA, with the domain name Cal/phonex.
E
THE CALLPHONEX:
371. Kadam (PW-42) told the court that the collaborators
of the terrorists appeared to be speaking from telephone
number 012012531824. As the international code would
indicate, the number was based in the US. Clarification about F
the number comes from the evidence of Nizar Al Sharif, who
was examined by the prosecution as PW-156.
372. The evidence of this witness was recorded through
audio-video linkage. The witness was sitting in room no.222 G
of Hotel Fairfield Inn, Sudbury, Ontario, Canada, where video
conference facility was available. Geoffrey Maron, the Special
Agent of FBI who was earlier examined as PW-153, first
identified one David Shea on the screen as the FBI Agent in
Los Angeles. Shea in turn identified Nizar Al Sharif to the court H
486 SUPREME COURT REPORTS [2012] 8 S.C.R.
A on the screen.
373. Al Sharif stated before the court that he was the
owner of International Connection Services (ICS) which was a
Private Corporation incorporated in the year 1993 and
registered in the State of Delaware. The office of the
8
Corporation was situated in New Jersey. The brand name as
well as the domain name of the Corporation was Calfphonex.
The Callphonex telephone number, in the month of November,
2008, until January 6, 2009, was (201)253-1824. Al Sharif
C further stated before the court that they were providing Voic ·
over Internet Protocol (VoIP) Services in wholesale as well as
in retail. Any person, who wanted to avail of their services, in
case he was not in the US, could contact them through their
website. The customer had to register through email. After
getting the email from the customer, they would set up services
D in accordance with the customer's requirement. Pre-payment
was necessary in all cases. He further stated that ordinarily, in
case a customer availing their services made a call to any
phone that displayed caller ID, the screen would display the
Calfphonex number (which, as noted above, was (201)253-
E 1824 in November, 2008). He explained that the carrier could
suppress the number but the user had no control over their
number ((201 )253-1824]. He further said that they had numbers
from different countries. Some of them were US-based and their
customers could make calls to mobile numbers through VoIP.
F
374. He further said before the court that one person
calling himself Kharak Singh (wanted accused No. 21) had
contacted them through email and had told them that he was a
reseller of VoIP services. Kharak Singh had contacted them
G on October 20, 2008, by email. After correspondence with
Kharak Singh on email they had provided him fifteen (15)
PC2Phone accounts, ten (10) Common Client accounts and five
(5) DID Austrian phone numbers. The email ID of Kharak Singh
was Kharak-telco@vahoo.com. No specific address was
H provided by Kharak Singh. He had only said that he was from
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 487
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
India. The mails received from Kharak Singh were replied to A
by Nizar Al Sharif personally. The first payment made by
Kharak Singh was of 250 US dollars and it was received
through Moneygram from Pakistan. The payment was made by
some Mohammed lsfaq. On being shown a copy of the receipt
of the Moneygram, Al Sharif identified it and it was then taken B
in evidence as Article 530. The second payment of 229 US
dollars was received through Western Union. He identified the
receipt of this payment as well, which was marked Article 531.
375. More importantly, Al Sharif stated to the court that the C
services provided by him to Kharak Singh were used most
heavily from November 24 to 27, 2008. The initial use was only
for testing. He further informed the court that he had supplied
the following details to the FBI along with his letter of February
13, 2009 (Ext. No. 614).
D
"(1) Call Detail Records for sub-account 310000xx and
400000xx for client Mr. Kharak Singh;
(2) Callphonex Call Detail Records for calls to 5 DID
numbers;
E
(3) Voxbone Call Detail Records to DID numbers (that
Callphonex has access to and obtained on its own);
(4) Three (3) .chat logs between a representative of
Callphonex and Mr. Kharak Singh; F
(5) Copy of MoneyGram receipt dt. 27th October,
2008, and copy of Western Union receipt di. 25th
November, 2008.
(6) E-mails between Mr. Kharak Singh and G
Callphonex."
376. He further deposed before the court that the last mail
received by him from Kharak Singh was on November 25,
H
488 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 2008, at 12:08 PM and thereafter there was no contact between
him and Kharak Singh. The account of Kharak Singh was
closed after December 25, 2008.
377. It does not require much imagination to see that
"Kharak Singh", claiming to be from India, was a fake identity
8
created for the sole purpose of obtaining the VoIP services from
Callphonex. But this was made very clear by the investigation
made by the FBI as would appear from a communication dated
February 18, 2009, from the Special Agent of the Bureau (PW-
153) in response to the letter-o-gatory issued by the Court of
C the Additional Chief Metropolitan Magistrate, Esplanade,
Mumbai, on Miscellaneous Application No.1/2009. The
communication from the FBI dated February 18, 2009, is Ext.
no. 617-A and it states the following with regard to the two
payments made to Callphonex from Kharak Singh's account:
D
"Two payments were made to Callphonex for Singh's
accounts. On October 27, 2008, the initial payment of
$250.00 was wired to Callphonex via MoneyGram, receipt
number 80700471903880005473. The sender for this
E payment was Muhammad lshfaq. The sender used
MoneyGram agent Paracha International Exchange
located at Road Anarkali Fayazuddin in Lahore, Pakistan.
According to MoneyGram records, lshfaq provided an
address of Postoffice Mall Awn Teh Gujar K, Peshawer,
F Pakistan and telephone number 03455698566. Copies of
the MoneyGram receipts are attached.
On November 25, 2008, the second payment of $229.00
was wired to Callphonex via Western Union, receipt
number 8364307716-0. The sender of this payment was
G Javaid Iqbal. The sender used Western Union agent
Madina Trading, located in Bescia, Italy, to make the
payment to Callphonex. For identification, Iqbal provided
Madina Trading with Pakistani passport number
KC092481.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 489
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
The owner of Callphonex noticed that neither of the wire A
transfers were sent from India. On November 25, 2008, he
emailed Singh and asked why the transfers were not
coming from India, however, he received no response."
378. As to Kharak Singh being an Indian in the aforesaid B
communication, the FBI Agent made the following
observations:-
"The FBI determined that the kharak_telco@yahoo.com
account was created on Oci.... ::ier 20, 2008, via Internet
Protocol (IP) address 66.90.73.125. Between October 20, c
2008, and November 28, 2008, a user with access to this
account logged in from the following IP addresses, which,
according to open-source information, resolve to the
corresponding geographic locations:
D
IP Addresses Location
58.27.167.153 (Pakistan)
66.90.73.125 (U.S. - apparent proxy)
E
67.159.44.63 (U.S. - apparent proxy)
80.78.132.155 (Kuwait)
82.114.138.18 (Russia - apparent proxy)
F
82.114.141.99 (Russia - apparent proxy)
118.107.140.138 (Pakistan)
203.81.224.201 (Pakistan)
G
203.81.224.202 (Pakistan)
203.81.224.203 (Pakistan)
Singh's Callphonex account has been inactive since
H
490 SUPREME COURT REPORTS [2012] 8 S.C.R.
A November 28, 2008. Callphonex closed Singh's account
because there has been no payment, no activity and no
communication from him since November 28, 2008."
379. It is noted above that among the documents furnished
B by Nizar Al Sharif to the FBI there were three chat logs between
a representative of Callphonex and Kharak Singh and the e-
mails between Kharak Singh and Callphonex.
380. Mr. Gopal Subramanium, in his meticulous and
painstaking way, took us through the three chat logs and the
C e-mails exchanged between Kharak Singh and Callphonex.
We have no doubt that even in the three chat logs it is not the
same person who is chatting under the fictitious name of
Kharak Singh. That the persons chatting as Kharak Singh are
different persons is evident from the different styles of language
D and their use of slang.
381. Perhaps Nizar Al Sharifs commercial interest got the
better of his sense of discretion, or perhaps he was too narve
to see through the clear deception. His services were thus used
E by a bunch of terrorists for the mass killing of innocent people.
According to him, he realized that a false account was opened
with him for unlawful purposes only after the massacre in
Mumbai.
MOBILE NUMBERS 9910719424, 9820704561 AND
F 9819464530 AND THE MOBILE PHONES USING THOSE
NUMBERS:
382. We have seen how the collaborators of the terrorists
killing innocent people in India hid behind the phone number
G of Callphonex and tried to conceal the locations from which they
were making calls. We shall now take a brief look at the three
numbers from which the terrorists holed up in at Hotel Taj, Hotel
Oberoi and Nariman House were calling or receiving calls from
their collaborators.
H
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 491
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
383. A great many mobile phones were collected and A
seized from the various places through which the terrorists had
passed as also from the vehicles used by the appellant and his
dead companion, Abu Ismail, for moving through the city. But
of interest to us are only five (5) mobile phones, two (2) of which
were recovered from Hotel Taj, two (2) from Nariman House and B
one (1) from Hotel Oberoi. The two phones that were recovered
from Hotel Taj are mentioned in Exhibit nos. 749 and 760. Both
were Nokia 1200 and silver-and-black in colour. One of them
had the IMEI No.353526024049451 and an Airtel's Sim
No.8991310000200898887842. This phone was never used c
by the terrorists. The other Nokia 1200 phone had the IMEI No.
353526025840890. It had a Sim card purchased from Delhi
in the name of one Suresh Prasad and, on calls being made
from this phone, the number that was displayed on the receiving
phone would be 9910719424, the first number that had come D
to the notice of Kadam (PW-242). The investigation later
revealed that the Sim card for this phone was purchased from
Gurvinder Singh Bakshi (PW-259), a retailer in Delhi, by
producing fake identity documents. Suresh Prasad was a
fictitious person.
E
384. Two Nokia 1200 phones were also recovered from
Nariman House and they found mention in Exhibit no. 771. One
of the phones had the IMEI No.353526025828739. The phone
was without a Sim card and it was never used. The other Nokia
1200 phone had the IMEI No.353526025842235. It had a Sim F
card belonging to Gabriel Holtzberg, who was first taken
hostage and was later killed by the terrorists. It appears that
the terrorists had taken away the mobile phone of Gabriel
Holtzberg, took out the Sim card from his mobile and put it in
their own mobile phone. A call made through the Sim card of G
Gabriel Holtzberg would display this number on the receiving
phone: 9819464530. This was one of the two numbers that later
came to the notice of Kadam (PW-242).
H
492 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 385. The fifth Nokia 1200 of silver-and-black colour was
recovered from Hotel Oberoi vide Ext. no. 790. Its IMEI number
was 353526025933620. This mobile phone had a Sim card
issued in the name of one Rita Agarwal. She was among those
killed by the terrorists at Hotel Oberoi. It appears that, as with
B Gabriel Holtzberg, Rita Agarwal's mobile phone was also taken
away by the terrorists at Hotel Oberoi, who took out the Sim
card from her mobile and used it to make calls from their own
mobile. Any call made through the Sim card of Rita Agarwal
would display the number 9820704561 on the receiving phone.
c This was the third number that had come to the notice of Kadam
(PW-242).
386. It is thus clear that the terrorists at Hotel Taj were using
a Sim card that was obtained in India under a fictitious name
Suresh Praad on the basis of fake identity documents. The
D terrorists at Nariman House and Hotel Oberoi used Sim cards
snatched from their respective victims, which they used to make
calls from their own mobile phones.
387. From the materials brought on record, it is evident
E that all the aforementioned five Nokia 1200 mobile phones
were manufactured in DongGuan, China, and were shipped to
Pakistan. Exhibit no. 606 is a communication dated February
12, 2009, from Mary Lozano, ACP, Enforcement Manager I
Americas Nokia Inc. (PW-155) addressed to SA Geoffrey
F Maron of the Federal Bureau of Investigation (PW-153). In the
aforesaid communication it is stated as follows:-
"February 12, 2009.
SA Geoffrey Maron
Federal Bureau of Investigation
G 11000 Wilshire Blvd
Los Angeles, CA 90024
In response to the FBl's request via United States
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 493
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
legal authority, Nokia provides information from our A
records concerning the following specific Nokia devices:
1. Nokia 1200, IMEI # 353526024049451
Manufactured: DongGuan, China B
Date shipped: June 28, 2008
Country shipped to: Pakistan
Vendor product sold to: United Mobile
2. Nokia 1200, IMEI # 353526025828739 c
Manufactured: DongGuan, China
Date shipped: June 26, 2008
Country shipped to: Pakistan
Vendor product sold to: 12 Pakistan (Pvt.) Ltd. D
3. Nokia 1200, IMEI # 353526025842235
Manufactured: DongGuan, China
Date shipped: June 26, 2008
Country shipped to: Pakistan E
Vendor product sold to: 12 Pakistan (Pvt.) Ltd.
4. Nokia 1200, !MEI # 353526025840890
Manufactured: DongGuan, China F
Date shipped: June 26, 2008
Country shipped to: Pakistan
Vendor product sold to: 12 Pakistan (Pvt.) Ltd.
5. Nokia 1200, !MEI# 353526025933620 G
Manufactured: DongGuan, China
Date shipped: June 28, 2008
Country shipped to: Pakistan
H
494 SUPREME COURT REPORTS [2012) 8 S.C.R.
A Vendor product sold to: United Mobile
Further, our records reflect that at the time of shipment, 12
Pakistan (Pvt.) Limited's address was:
B 12 Pakistan (Pvt.) Limited
2nd Typical Floor, Executive Tower
Dolmen City, Block 4, Clifton
Karachi Pakistan
c Within the scope of my employment with Nokia, and
in compliance with United States law, I am authorized to
provide the above listed information derived from Nokia's
records.
D
Sincerely,
Mary Lozano, ACP
Enforcement Manager/ Americas
Nokia Inc.
E
6021 Connection Drive, MS 2-5-520
Irving, Texas"
388. We have seen the mobile phones and the SIM cards
F by means of which the terrorists holed up in the places targeted
by them were calling their collaborators across the border and
also the medium through which the exact location of the
collaborators was hidden. Now we come to the substance of
the conversations between the terrorists and their collaborators.
G
THE TALKS:
389. The attack on Mumbai killing and wounding scores
of innocent people was a wicked act, and the conversations
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 495
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
between the terrorists and their collaborators while the attack A
was underway appear to be its uglies~ and most hateful part.
Those conversations unveil warped minds conceiving perverted
objectives and trying to realize those objectives through vicious
and dastardly means.
B
390. In an early talk55 that took place between 01 :15:01 to
01:16:42 hrs. on November 27, 2008, between one of the
terrorists from Hotel Taj and the collaborators, the latter appear
quite anxious that the hotel building should be set on fire. They
constantly urge the terrorist to start the fire but this man seems C
to be a little nervous as he finds himself alone holding a hostage
(Ramamoorthy) while his other partners, who had gone on
reconnaissance and in search of more hostages, are delayed
in returning. Every time the collaborators ask him to start the
fire and throw grenades he complains that his partners have
not come back even though he had told them to come back D
quickly. The collaborators ask him many questions about the
sea journey and get answers that would not have made them
very happy as everything did not go as per instructions. The
terrorist in Hotel Taj told them that the Indian boat was not sunk
in the sea but was left afloat. What is more, Abu /smail's satellite E
phone and a GPS too were left in the boat. The only information
that seems to have pleased the collaborators was that the
navigator of the Indian boat was killed by cutting his neck. [But
on that score also the happiness was not complete because
his body was not thrown into the sea but left on the boat itself.) F
In the midst of getting all this information the collaborators keep
pressing the terrorist to start the fire but this man appears
unequal to the task.
391. In another conversation between the terrorists at G
Nariman House and the collaborators, one of the hostages, a
Mexican citizen called Norma Shvarzblat Rabinovich, is brought
to the phone and is threatened by the collaborators that if she
55. Described in the transcripts of intercepted calls from Hotel Taj: Talk no. 2. H
496 SUPREME COURT REPORTS [2012] 8 S.C.R.
A wanted to remain alive she must do their bidding and talk to
the Indian authorities as dictated by them. The poor woman
agreed to do all that they demanded and yet she was killed at
the end without the slightest qulams. As noted above, the
recording of the intercepted conversation extend over twelve
B and a half (12.5) hours. The transcripts of the recorded
conversations are accordingly long. We propose to take a look
at a few excerpts as samples under the following heads.
1. Exhortation to fight in the name of Islam against
heresy, and the allurement of martyrdom.
c
2. Deception that the terrorists were Indians and were
venting the grievance of the Indian Muslims; also an
attempt to involve Israel.
o 3. Rejoicing over the killing of the high police officers.
4. Advising the terrorists on tactics to deal with the
security forces, who were called in to neutralize
them.
E 5. Killing of the hostages
Exhortation to fight in the name of Islam against heresy,
and the allurement of martyrdom
392. (1) TRANSCRIPTS FROM HOTEL TAJ
F
Talk No. 3 (Ext. no. 970 Collectively)
(The collaborator talking from across the border is marked
as 'UK' and the terrorists holed up in Hotel Taj are marked as
G 'T')
UK 2: Allah yaar aapka kaam kabool kare. Bahot
saare logon ke zakhm par marham rakha gaya hai.
Jo dua aapko batayee thee na wo bhoolni nahi hai.
Jahan bhi baitho teen baar dua zaroor padhni hai.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 497
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
[My friend, may Allah accept your deed. Balm has A
been put on the wounds of many people. Do not
forget the prayer that we made you learn; wherever
you sit recite the prayer three times.]
UK 2: Baaki bhaiyon ko salaam kehna. Mazboot B
rehna apni baaton mein, apni baaton mein
mazbooti paida karo. Aapne duniya ko chhoda hai.
Jannat lnsha-allah iss se bahut behtar hai. Apne
vaade zaroor poore karna jo sachhe vaade hain.
Hamare liye bhi dua karna.
c
[Tell my 'Salaam' to the rest of the brothers. Be
strong in your actions; in your actions instill strength.
You have left this world. Paradise is far better than
this world. You must fulfil your promises, which are
true promises. Pray for us too.] D
TRANSCRIPTS FROM HOTEL OBEROI
Talk No. 4 (Ext. no. 979)
(The collaborator talking from across the border has been E
marked as 'UK' and the terrorists holed up in the Hotel Oberoi
are marked as 'T)
UK: lnsha-allah, pata matlab yeh hai ki iss waqt Islam
aur Kufr ka mamla hai. Hum woh bande hain jisko F
Allah ne apne deen ke jahaan ke liye bheja hai.
Matlab shahadat ki maul toh badi hai. Lekin hai
shahadat ka andaaz hai ki dushmanon ke dil mein
khauf bitha dein. Aur sahi andaaz hai matlab
shahadat. Matlab, na darne ki baat hai, shaheed ka G
paigaam aage rakhna hai.
(God willing, you know, what I mean is at this time
the issue is between Islam and heresy. We are the
slaves of God whom he has sent for expansion of
the true faith. I mean, death as a martyr is a big H
498 SUPREME COURT REPORTS [2012] 8 S.C.R.
A thing. But the style of martyrdom should be such as
to put fright in the heart of the enemies and that is
the style of martyrdom. What I mean is there is
nothing to fear, the message of the martyr must be
put forward.]
B
UK: Dua karo, dua ka waqt hai. Sahi Allah ke saath kiye
vaade poore karein. Theek hai.
[Pray. It is time for prayer and keep your promise
to Allah. All right!]
c
UK: Aisa ladna hai ki unhein maloom pade ki Allah ka
sher mere peechey pada hai.
[Fight in such a way, they should feel that Allah's lion
is after them.]
D
T-11: lnsha-allah.
[God willing.]
UK: lnsha-allah. Matlab Shaheed.
E
[God willing. What I mean is martyr.]
T-11: lnsha-allah. Dua karo.
[God willing. Pray for me.]
F
UK-II: Unko bada maan hai Hindu bhai ko, unka maan
khaak mein mila dein.
[They have great pride those Hindu bhais. Let their
G pride be trampled in mud.]
T: lnsha-allah.
[God willing.]
H UK-II: Sahi hai. Zikr karo lnsha-allah kaamyaabi har taraf
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 499
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
se aapki hai. Aapki yeh kaamyaabi Allah kabool A
karle, theek hai. Sahi lnsha-allah, Allah-tala ne
Janna! bilkul clear kar di. Aapke liye shareer mahi
hai. lnsha-allah sabne jaana wahin par hai. Jis raste
se aap chal rahe ho woh himmatwala rasta hai.
lnsha-allah, himmatwala kaam karna hai. B
[Remember Him and God willing success will be of
yours. May God accept your success. That is right.
Right, God willing. Allah has completely cleared
paradise for you. Everyone has to go there. The
path on which you are treading that is the path of
c
strength. God willing. You have to do the
courageous deed.)
T: lnsha-allah.
D
[God willing.]
Talk No. 11 (Ext. no. 981)
(This is towards the conclusion perhaps the last minutes
of Fahadullah). E
T: Assalaam-Valeykum.
[Assalaam-Valeykum.]
UK: Valeykum Salaam, kya haal hai Fahadullah, mere F
yaar khairiyat hai?
[Valeykum Salaam. How are you Fahadullah, my
friend are you all right?]
T: Abdul Rahman Bhaiyya Allah ko pyaare ho gaye. G
[Abdul Rahman Bhaiyya has been taken away by
God.]
UK: Achha, aapke paas hi hain?
H
500 SUPREME COURT REPORTS [2012) 8 S.C.R.
A [Well, is he near you?)
T: Haan jee; paas hi hain.
[Yes. He is near me.]
B UK: Allah kabool kare. Mere veer sabr karna hai,
himmat karni hai aur muquabla karna hai datt ke.
[May Allah accept him. My brother have
forbearance. Be brave, you have to fight
unrelentingly.)
c
T: lnsha-allah.
[God willing.]
UK: Haan. Allah madad karega.
D
[Yes. Allah will help you.]
UK: Theek hai mere yaar, himmat karo. Muquabla karo,
josh se lado. Theek hai. Dua karo, iss waqt karo,
E iss waqt ki dua badi kabool hoti hai.
[All right my friend. Be brave. Fight, fight with
passion. Alright. Pray, pray. Prayer at this time is
very readily accepted.]
F Talk No. 12 (Ext. no. 982)
UK: Giraftaari waali shakl nahin hone deni. Yeh baa!
yaad rakhni hai.
(There cannot be the eventuality of arrest. You have
G to remember this.)
T: Nahin. lnsha-allah, lrisha-allah.
(No. God willing, god willing.)
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 501
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
UK: Himmat karni hai mere veer, ghabraana nahin hai, A
lnsha-allah; goli lage toh kaamyaabi hai. Allah
intezaar kar raha hai.
(My brother you have to be strong. Do not be afraid.
God willing. If you are hit by a bullet, in that is your 8
success. God is waiting for you.)
T: Haan jee. lnsha-allah.
(All right. God willing.)
Deception that the terrorists were Indians and were killing
c
people to vent the grievance of the Indian Muslims; also
the attempt to involve Israel
393. (2) TRANSCRIPTS FROM NARIMAN HOUSE
D
Talk No. 7 (Ext. no. 984)
(The collaborator talking from across the border has been
marked as 'UK' and the terrorists holed up in the Nariman
House are marked as 'T')
E
UK-Ill: Aap woh poochhenge aap kahan ke hain.
Kehna mein Hyderabad Deccan ka hoon.
[Now they will ask where do you belong to?
Say, I am from Hyderabad Deccan.]
F
T: Jee.
[Yes.]
UK-Ill: Hyderabad city ka theek hai.
G
[City of Hyderabad, understand.]
T: Hyderabad Deccan.
UK-Ill: Hyderabad city ka Hyderabad city ka hoon aur
chowki ka mera area hai.
H
502 SUPREME COURT REPORTS [2012] 8 S.C.R.
A [Hyderabad city, I am from Hyderabad city, from
the Chowki area]
T: Chowki
UK-Ill: Tolee Chowki. Tolee Chowki.
B
T: Tolee Chowki theek hai.
[Tolee Chowki, all right.]
UK-Ill: Aur phir poochhey !oh kehna Mujahedeen
Hyderabad Deccan se mera talluk hai. Theek
c hai.
[And if they ask further, say that you are
associated with Mujahedeen Hyderabad
Deccan.]
D
T: Theek hai.
[All right]
UK-Ill: Mujahedeen Hyderabad Deccan ise hasi
E sangeen (sic tanzeem) se mera taluk hai. Aur
agar weh kehte hain ye action kyon ki hai. Hum
hukumat ki doshi policy hukumat ki dohri policy
hukumat peeth thapthapati hai. Aur prashasan
sar pe tole marti hai.
F [M ujahedden Hyderabad Deccan is the
organization to which I belong. And if they say
why did you do this action. (say) against the
wrong policy of the Government, the dual policy
of the Government. The Government pats the
G back and the administration knocks on the
head.]
T: Hukumat ki doshi policy. Hukumat peeth
thapthapati hai.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 503
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
[The wrong policy of the Government. The A
Government pats the back.]
UK-Ill: Hukumat peeth thapthapati hai.
[The Government pats the back.]
B
T: Peeth thapthapati hai.
[Pats the back.]
UK-111: Aur prashasan jo hai sar par tole maarta hai.
c
[And the administration, such as it is, knocks
on the head.]
T: Aur prashasan.
[And administration.] D
UK-Ill: Sar par tole maarta hai. Uski taaza misaal
Sachhar Committee ki shifarishein, uski taaza
misaal.
[Knocks on the head. Its recent example (is) the E
recommendations of the Sachhar Committee.]
T: Uski taaza misaal.
[Its recent example.] F
UK-Ill: Sachhar Committee shifarish. Jis taraf hukumat
jo ye ailaan karti hai aur darasal vajah
prashasan Muslim yuvkon ko pakad pakad kar
giraftaar karti hai.
G
[Sachhar Committee recommendations. On the
one hand the Government makes this
announcement and in reality in order to harass
them, the administration pursues Muslim youths
and arrests them.] H
504 SUPREME COURT REPORTS [2012] 8 S.C.R.
A T: Hukumat koi aur insaan karti hai.
[The Government makes another
announcement.]
UK-Ill: Prashasan uska amal Muslim yuvkon ko
B giraftaar karke deta hai. Saabit karta hai.
[(And) the administration implements it by arresting the
Muslim youth. This just shows.]
T: Muslim.
c
UK-Ill: Muslim yuvkon ko, Muslim jawaanon ko.
[The Muslim youth, the young Muslim.]
T: Nau jawaanon ko.
D
[The youngsters.]
UK-Ill: Giraftaar karke sabit karta hai.
[Makes it clear by arresting them.]
E T: Haan.
[Yes.]
UK-Ill: Unka future barbaad karti hai. Unko ye
ultimatum de denge hamra abhi toh trailer hai
F
abhi asal film to baaki hai. Hukumat ye jaan le
yeh trailer hai, asal film to baaki hai.
(Destroys their future. Give them the ultimatum
that this is only the trailer and the main film is
G yet to come. The Government should know that
this is only the trailer and the main film still
remains.]
T: Hukumat ye jaan le sarkaar ye jaan le yeh trailer
hai asal film to baaki hai.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 505
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
[The Government should know, the Government A
should know that this is the trailor and the real
film is still remaining.]
UK-Ill: Yeh to abhi trailor hai.
[This is only the trialor.] B
T: Yeh to abhi trailor hai.
[This is only the trialor.]
UK-Ill: Yeh to chhotta sa udaharan hai mein. Chhota c
sa example hai. Trailor hai.
[This is only a small example, is a small
example, is only the trailor.)
D
T: Yeh trailor hai.
[This is only the trialor.]
UK-Ill: Yeh chhotta sa humne aapko dikhaya hai.
E
[We have shown you only this little thing.]
T: Film to abhi saara pada hai.
[The whole film is still there.]
F
UK-Ill: Unko kaho ye chhota sa namoona hai. Abhi
hukumat ko dekhna hai. Aage aur kya kya hota
hai.
[Tell them this is only a small sample. The
Government is yet to see what happens in the G
time to come.]
T: Abhi hukumat dekhegi kya hota hai.
[The Government will see what happens now.]
H
506 SUPREME COURT REPORTS [2012] 8 S.C.R.
A UK-Ill: Theek hai.
[Alright.]
T: Theek hai. Theek hai.
B [Alright. Alright.]
UK-Ill: Woh kahenge na aapka demand kaya hai.
Hello.
[They will say what is your demand. Hello.]
c
T: Haanjee, haanjee.
[Yes jee, yes jee.]
UK-111: Jitne bhi jailon mein musalman qaid hain unko
D riha kiya jaaye. Ek number.
(All the Musalmans who are languishing in jails
should be released. Number one.]
T: Saare musalman riha.
E
[All the Musalmans released.]
UK-Ill: Jitne bhi jailon mein band musalman hain unko
riha kiya jaaye.
F
[All the Musalmans who· ·are locked up in jails
should be released.]
T: Theek hai.
G [Alright.]
UK-Ill: Theek hai. Number do.
[Alright. Number two.]
H T: Jee.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 507
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
[Yes.] A
UK-Ill: Muslim state, Muslmanon ke hawaale kiya
jaaye.
[Muslim state should be handed over to the
Musalmans.] B
T: State Musalmanon ke hawaale kiya jaaye.
[State should be handed over to the
Musalmans.]
c
UK-Ill: Number teen. Kashmir se fauj bulayee jaaye.
Unko unka haq diya jaaye. Kashmiriyon ko
unke haq diya haaye uaaye).
[Number three. The Army should be withdrawn D
from Kashmir. They should be given their rights.
Kashmiris should be given their rights.)
T: Theek hai.
[Alright.] E
UK-Ill: Babri Masjid ki jagah par fauran masjid ka
kaam shuru kiya jaaye. Uss Jagah ko
musalmanon ke hawaale kiya jaaye.
[At the site of Babri Masjid, work should F
immediately commence for construction of the
mosque. That spot should be handed over to
the Musalmans.]
T: Theek hai. Theek hai. G
[Alright. Alright.)
UK-Ill: Uss jagah ko musalmanon ke hawaale kiya
jaaye. Israel ke saath gathbandhan na kiya
jaaye. H
508 SUPREME COURT REPORTS [2012] 8 S.C.R.
A [That spot should be handed over to the
Musalmans. There should be no collaboration
with Israel.]
T: Israel ke saath gathbandhan na kiya jaaye.
B [There should be no collaboration with Israel.]
UK-Ill: Israel ke saath gathbandhan na kiya jaaye.
[There should be no collaboration with Israel.]
T: Jee
c
(Jee.]
UK-Ill: Hello
[Hello.]
D
T: Haan jee.
[Yes jee.]
UK-Ill: Israel ko ye ultimatum diya jaaye ya bawar
E (beware] kiya jaaye ki woh musalmanon par
zulm na kare. Philippines udhar zulm jaati
bandh kare.
[An ultimatum should be given to Israel; it should
be made to realize not to oppress the
F Musalmans and Philippines too should stop
oppressing and harassing.]
T: Israel ko.
[To Israel.]
G
UK-Ill: Philippines ki musalmanon ke upar jaatati
[jyadati] bandh kiya jaaye.
[The harassment of the Musalmans of
Philippines should stop.]
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 509
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
T: Israel musalman ke khoon se khelna chhod A
de in.
[Israel should stop playing with the blood of
Musalmans.]
UK-Ill: Ha. (Whispers: Oberoi mein dhamakon ki B
awwaz) T!oc:ek hai.
[Ha. (Whispers to the colleagues with him:
Sound of explosion in Oberoi. Alright.]
c
T: Jee, Jee.
[Jee, Jee.]
UK-Ill: Agar Israel uss tarah nahin karegaa toh
poore ... Yahi hai bus theek hai. D
[If Israel does not do like this then all this ...
That is it and alright.]
T: Jee, Jee.
E
[Jee, Jee.]
UK-Ill: Yahi kehna hai. Bus yahi kehna hai.
[This is to be said. Only this is to be said.]
F
T:. Jee, Jee.
[Jee, Jee.]
UK-Ill: Israel jo yeh bharat ke musalmanon ke beech
mein dakhal andaazi G
nahin karein.
[Israel should not interfere with the Musa/mans
of Bharat.]
H
510 SUPREME COURT REPORTS [2012] 8 S.C.R.
A T: Theek hai.
[Alright.]
UK-Ill: Th eek.
B [Right.]
T: Salaam-Valeykum.
UK-II: Valeykum-assalaam.
c 394. And it was exactly on these lines that the terrorists
from Nariman House talked to India TV as the transcripts of
those interviews would indicate.
395. The deception, the falsehood that the terrorists were
Indian Muslims coming from Hyderabad and were connected
D with some fictitious organization called Mujaheddin, Hyderabad
Deccan, is one of the most ominous and distressing parts of
!he conspiracy. If the appellant had not been caught alive and
the investigating agencies had not been able to unravel the
conspiracy fully and in all its devious ways, the terrorists might
E have passed as Indian Muslims and that would have led to
devastating short-term and equally debilitating long-term
consequences. It would have caused a cleavage of distrust and
suspicion between communities and disturbed the communal
peace and harmony of the country. It is not impossible that
F conflagrations would have erupted in different parts of the
country which the governments would have found difficult to
contain.
396. In this regard, the selection of CST as one of the
G targets for carnage assumes great importance. Trains leave for
many parts of the country from CST. Thus, as news of the
carnage spread across the country through the media, travelers
would start arriving in different parts of the country, some having
lost their near and dear ones at CST, some with a wounded
companion and others shell-shocked by the experience of a
H terrorist attack on the railway station. Their first-hand, eye-
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 511
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
witness accounts of the carnage added to reports in the print A
media and visuals in the electronic media could be highly
inflammable and could easily evoke communal violence that
would be difficult to contain.
397. The deception was ominous because it aimed at
B
destabilising Indian society and its governments. But it was
equally distressing for being so deeply untruthful. Indian Muslims
may have a long list of grievances against the establishment.
Some of the grievances may be fanciful, some may be of their
own making and some may be substantive. Nevertheless, no
Indian Muslim would even think of venting his grievance like an C
animal, killing, maiming and wounding innocent people; his own
countrymen. This is because he is not only loyal to his faith and
community but equally loves his country and fellow countrymen.
Rejoicing over the killing of high police officials D
398. (3) TRANSCRIPTS FROM HOTEL TAJ
Talk No. 3 (Ext. no. 970)
(The collaborator talking from across the border has been E
marked as 'UK' and the terrorists holed up in the Hotel Taj
are marked as 'T')
UK: Koi masla nahin mere yaar, pareshaan nahin hona
mere yaar. Aap kaam karo, Allah ki dua se saari
F
Bombay mein tabahi mach gayi hai. 260 bandhe
zakhmi hain aur kayee officer mare gayee hain,
pachaas fidayeen ghusey hain. Har terah choudah
jagah firing ho rahi hai. Sahi Allah ke dua se mahaul
bana raha hai. Koyee pareshaani ki baat nahin.
G
[There is no problem my friend, don't get worried
my friend. You do your work. By the blessing of God
there is destruction all around in the whole of
Bombay. Two hundred and sixty (260) people are
H
512 SUPREME COURT REPORTS [2012] 8 S.C.R.
A wounded and many officers are killed. Fifty (50)
fidayeens have entered. Firing is going on at
thirteen-fourteen (13-14) places. By the blessing of
God the right atmosphere is developing. There is
nothing to worry.]
B
T: Pareshaani wah bass hai. Do bhai gaye hain. Who
jaldi aa jaayein. Unko mein baar baar kehta hoon.
Jaldi aa jaao, jaldi aa jaana.
[The only worry is two brothers have gone. They
c should come quickly. I told them repeatedly:Come
quickly, come quickly.]
UK: Aapke yahan shayad koyee helicopter aayega.
Kyonki aapke yahan koyi wazeer fansey hain hotel
D mein? Hotel mein bhi media bata rahe hain ki
wazeer fansey hain.
[A helicopter may come to your place. Because
there is some Minister trapped in the hotel? The
media too informs that some Minister is caught in
E the hotel.]
T: Achha.
[Very well.]
F UK: Ab wazeer alam ye kaha hai. Helicopter bhejkar
woh wazeer logon nikalo. To aap aag laga do
darwaza nahin khol rahe hain. Parde nikalkar aag
lagao. Kamron ko aag lagao to wazeer jale. Aur
unki jaan jaayen.
G
[Now the Prime Minister has asked for sending a
helicopter to get that Minister (those Ministers?) out.
Then you set fire (if) they are not opening the doors.
Take the curtains and set them on fire. Set the
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 513
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
rooms on fire so that the Minister should burn. And A
get killed.]
T: Chalo koshish karte hain. Woh aa jaaye na yaar to
yeh masla hai. Hum donon rumaaliyon ke paas
bethe hain, woh aa jaate hain to hum ikattha 8
koshish karte hain.
[Very well, we'll try. The problem is that they're not
coming. I am sitting with the two hostages. When
they come back, we shall try (to start the fire)
together.] C
UK: Aur ek Commissioner maara gaya hai Allah ki dua
se. Aapko kaha hai ek hathoda opener dhoondo.
[And one commissioner is killed by the b!essing of
0
God. I told you to find a hammer or an opener.]
T: Nahin, nahin mila.
[It is not found.]
E
UK: Mere bhai jahan bhi deewaron par cylinder aag
bujhane ko lagaayein hain, udhar hathoda latkaay
rehtey hain. Har hotel mein rehta hai. Har manzil pe
rehta hai, har gali mein hota hai.
[My brother at all the points where cylinders are fixed F
for extinguishing fire a hammer would also be
hanging. It is there in every hotel. It is there on each
floor, it is in every corridor.]
T: Woh kis liye hota hai. G
(Whisper) Sabse zyada zulm karnewala
Commissioner maara gaya.
[What is its purpose.]
H
514 SUPREME COURT REPORTS [2012] 8 S.C.R.
A [(Whisper) The Commissioner who oppressed
most is killed.]
UK: Achha mere veer mere bhai jaldi se aag lagao jaise
maahol banega. Aur log ghabra jaayengein, aag ke
B sholey bahar nazar aa jaayengein.
(Alright my veer, my brother, please start the fire
quickly. That would set the scene and people will
panic, the flames would be visible from outside.]
C UK: Haa, Maine kaha yahan ka Bombay ka police ....
(Yes I said of this place, of Bombay police.]
T: Haa haa Pathan hai.
D (Yes yes, he is pathan.]
UK: Yeh Bombay ka Chief maara gaya.
[The Bambay Chief is killed.]
E T: Whisper (to the handler): Maharashtrya hai. (to the
hostage) Tu kidhar ka hai. Kis ilake ka hai tu kidhar
ka hai.
[Whisper (to the handler): He is Maharashtrian. (To
the hostage) Where do you belong? From which
F region, which place?]
UK: Chief maara gaya hai. ATS chief maara gaya hai.
(The chief is killed. The ATS chief is killed.]
G TRANSCRIPTS FROM NARIMAN HOUSE
Talk No. 18 (Ext. no. 988)
(The collaborator talking from across the border has been
H marked as 'UK' and the terrorists holed up in the Nariman
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 515
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
House are marked as 'T') A
T: Woh toh keh raha Iha do bhai surrender ho gaye.
[He was saying two brothers have surrendered.)
UK: Nahi bakwaas kar rahe hain. B
[No they are talking nonsense.]
T: Jee
[Jee] c
UK: Surrender ho gaya. Bakwaas kar raha hai. Kai se
lekar aaj tak unse koyi bhi jagah clear nahin hui hai.
[Surrendered! He is talking rubbish. From yesterday
till today no place has been cleared by them.] D
T: Aur kya naam lete hain. Uska. Baaki bhai kahan tak
pahunch gaye hain.
[And what other names do they take. His. Till where
E
the rest of the brothers have reached.]
UK: Sab jahaan jahaan apni apni jagah par gaye they
na.
[They all went where they were meant to go.] F
T: Haan jee.
[Yes jee.]
UK: Udhar hain. Allam Dulla woh toh sahi behtreen ladh G
rahe hain. Kaam jaari hai. lnsey ab tak koyi bhi
jagah clear nahin hui. Yeh koyi na kahe rahe humne
yeh jagah chudwa lee hai.
[They are there. Allah be praised they are fighting
H
516 SUPREME COURT REPORTS [2012] 8 S.C.R.
A excellently. The work is in progress. They have not
been able to clear any place. No one is saying that
they have got this place freed.]
T: Achha Achha dua karein, shahadat kee maul
kubool karein. Dua
B
[Well well pray for me, the martyr's death may be
accepted. Pray ... ]
Advising the terrorists on the tactics to deal with the
c security forces who were called in to neutralize them
399. (4) TRANSCRIPTS FROM HOTEL TAJ
Talk No. 3 (Ext. no. 970)
o (The collaborator talking from across the border has been
marked as 'UK' and the terrorists holed up in the Hotel Taj
are marked as 'T')
UK2: Baal suno.
E [Listen.]
T3: Haan jee.
[Yes jee.]
F UK2: Jahan se aap mudhkar aaye ho, aapka munh
samudr ke baaju hua.
[The spot from where you have returned, you should
be facing the sea.]
G T3: Haan haan.
[Yes yes.)
UK2: Hello.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 517
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
[Hello.] A
T3: Haan jee. Mein sun raha hoon.
[Yes jee. I am listening.]
UK2: Jis taraf aap mude ho aapka munh samudr ke paas B
hua. Wahan mod ke road ke upar ek building hai
civil logon ki. Woh asal mein Navy ki hai. Woh civil
ko di hai. Uskey taraf do jagah police waale khade
hain. Woh position leka~ aapke upar shisht lekar
firing kar rahe hain. Jis tarah aap gaye hain. Uske c
peechey se aakar aapko fire karna padhega.
· Theek hai.
[The way you have turned, you should be facing the
sea. There, at the corner of the road, there is a
building of civilian people. In reality that belongs to D
the Navy. It is given to the civilians. Over there,
policemen are standing at two places. They have
taken position and, taking aim at you, they are firing
at you. The way you have gone you would have to
come from behind and fire at them. You E
understand?]
T3: Theek hai.
[All right.]
F
Talk No. 8 (Ext. no. 972)
UK: Kyaa haal mere yaar? Shift ho gaye neechey.
[How are you, my friend? Have you shifted below?] G
T: Haan ji shift ho gaye hein aur doosare kamron mein
chale hain clear karne ke liye.
[Yes jee, we have shifted and are moving to clear
the other rooms.] H
518 SUPREME COURT REPORTS [2012) 8 S.C.R.
A UK: Upar aag laga di hai?
[Have you set fire upstairs?]
T: Grenade fenka hai. Grenade.
B [We have thrown a grenade. Grenade.]
UK: Grenade ki awaaz aa gayi hai. Grenade unhone
dikha diya hai. Dhamaka hua hai. Aadmi zakhmi
hue hain.
c [fhe sound of the grenade has come. They have
shown the grenade. The explosion has taken place.
People are wounded.]
T: Toh aag lagane lagey hain.
D
[So, (you) have started to lit the fire.)
UK: Jis kamre se nikal kar aaye ho upar waali manzil
hai na?
E [The room from where you've come (is) on the
upper floor?]
T: Haanjee, haanjee.
[Yes jee, yes jee.]
F
UK: Usko mere yaar jaakar aag lagao.
[My friend, go and set fire to it]
T: Haan jee bhai.
G
[Yes jee, bhai.]
UK: Kamron ke beech pardey hain gadde hain unko
ikathha karke aag laga do.
H [In the rooms there are curtains and cushions, Put
MOHAMMED AJMAL MOHAMMAll AMIR KASAB @ABU 519
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
them together and set them on fire.] A
T: Asal aag lagane mein bhi utni der lagati hai aur
rumaali dhondhne ko utni der lagati hai. Bataao ki
hum kya karein. Aage ki toh mauj laga denge
masha-allah.
B
[Actually it takes some time to start a fire, and it
takes as long to find hostages. Tell us what to do.
We'll create real fun, presently.]
UK: Aag laga do, aag laga do mere yaar, kamra koyi c
naya clear karne lage ho.
[Set fire, set fire my friend; are you clearing any new
rooms?]
T: Haan jee. D
[Yes jee]
UK: Pehle chalo aag lagao mere yaar upar ek banda
bas ho gaya. Aag lagake neechey aa jaao. Ek
E
banda hai na.
[First go and set a fire, my friend. One fellow (is
caught) upstairs, that is enough. Set fire and come
down. You have one fellow, don't you?]
F
T: Nahin do bandey hain.
[No there are two men.]
UK: Nahin do bandey toh upar, party poori bhej do unke
paas phone hai na doosra. G
[No, two men are upstairs. Send the whole party to
them. You have the other phone?]
. T: Haan jee .
H
520 SUPREME COURT REPORTS (2012) 8 S.C.R.
A [Yes jee.]
UK: Dono ikkatha karke aag lagake aao.
[Put them together and set the fire and come.]
B T: Asal mein hum seediyon ke paas ek kamra liya hai
bada jabardast, ek banda seediyon ke paas ek
banda andar mein baitha hai roomali ke saath aur
do bande baahar khyal rakhenge.
[Actually, we have taken a room near the stairs that
c is great. One man is near the stairs, one man is
sitting inside with the hostage, and two men are
keeping watch outside.]
D
UK2: Fire hua hai.
[There has been a fire]
T2: Haan fire hua. Abhi apna darwaaza band rakhein?
E
[Yes, there has been a fire. Should we keep our
door closed?]
UK: Nahin aap chaaron ek kamre mein nahin ikkatha
hongein. Wah yaad rakhein aapke kareeb koyi
F pahunchega toh aapke hain na jo aapke paas
baithey hue.
[No, all four of you should not be together in one
room. Keep in mind, if anyone comes close to you
G then those (hostages) who are sitting with you ... ]
T2: Haan.
(Yes]
H UK: Jab aapko lage koyi hamarey kareeb pahunch
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 521
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
gaye hain aur hamare liye mushkil ho rahi hai. Tab A
unko aapne khadka dena hai.
[When you feel someone has reached close to you
and its getting difficult for you, then you have to kill
them (the hostages).]
B
T2: Haan haan. lnsha-allah. Khadka denge. lnsha-allah
chaaron hum ek hi kamre mein hain hum log.
[Yes yes. God-willing, we shall kill them. God-willing
all four of us are in the same room.] c
UK: Haan yeh baat suno. Chaaron ek kamrey na hon.
Do kamron mein aapne intezaam karna hai.
[Yes, listen to this. All four of you, don't be in one
room. Make arrangements in two rooms.] D
UK2: Yeh aap kis manzil par hain aap.
[On which floor are you?] E
T2: Hum. sabse upar waali chhodkar neecheywale pe.
[On the topmost but one.]
UK2: Sabse ooperwali chhodkar neechey wale pe. F
Sande kitne hain aapke paas.
[On the topmost but one. How many hostages are
with you?]
T2: Ek minute jee. Sohaib ko fire maara hai unhon ne G
toh pehle band karte hain phir aapse raafta (baa!
kartey hain) kartey hain.
[One minute jee. Sohaib has been fired at by them so we
stop this talk and get connected with you later on.] H
522 SUPREME COURT REPORTS [2012] 8 S.C.R.
A UK2: Line mat kato hum sun rahe hain.
[Don't cut the line, we are listening.]
T2: Ek minute.
B [One minute.]
UK2: Position badlo. Position badlo.
[Change your position. Change your position.]
C T2: Achha achha. Sohaib ne maara hai un bandon ko
fire.
[All right, all right. Sohaib has shot at those men.]
UK2: Allam Dulla jagah badlo, position badlo, ikkattha
D mat baitho. Jahan se aa rahe hain wahan grenade
fenko. Teesri manzil pe baithe hain.
[Allah be praised, changed your place, change
your position, don't sit together. Throw a grenade
E at (the direction from) where they are coming.
They are on the third floor.]
TRANSCRIPTS FROM HOTEL OBEROI
Talk No. 4 (Ext. no. 979)
F
(The collaborator talking from across the border has been
marked as 'UK' and the terrorists holed up in the Hotel
Oberoi are marked as 'T')
UK: Aapki building ke upar fauji apni position bahut
G mazboot kar rahi hain. Number ek.
[On the top of your building the soldiers are
making their position very strong. Number one
(1).]
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 523
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
T: Jee, Jee. A
[Jee, Jee.]
UK: Agar aapko manzil pe aawaaz aa rahi ho toh
chhupo andar.
B
[If noises are coming on your floor then hide inside.]
T: Haan jee.
[Yes jee.]
c
UK: Aapko aawaaz nahin aa rahi ho to aap nikal kar
jahah aapko movement nazar aati hai wahan par
fire karo.
[If there are no noises coming to you then come
D
out and fire at the spot where you see any
movements.]
T: Aawaaz to khair aa rahi hai bahut jyaada balki
dhamaka bhi kiya hai.
E
[Definitely, there is a lot of noise, and there has also
been an explosion.]
UK: Pehli manzil par aa rahi hai aawaaz. Dhamaka,
dhamaka, kaun sa hua hai?
F
[The noise is coming on the first floor? Explosion,
explosion, what explosion happened?]
T: Pata nahin kaun sa hai.
[I don't know what (explosion) is this.]
G
UK: Army ne kiya na?
[Is it by the Army?]
H
524 SUPREME COURT REPORTS [2012] 8 S.C.R.
A T: Haan jee.
[Yes jee.]
UK: Saamne aapke manzil par se aa rahi hain kya
aawaazein?
B
[Are noises coming from the front side of your floor?]
T: Haan jee, aa rahin hain.
[Yes jee, (noises) are coming.]
c
UK: Haa, phir aap mazboot hokar dono iss tarah se
position lekar agar do - teen bande andar ikkathha
aate hain toh ... aapke paas magazine kitni hai?
[Ha, then be strong and the two of you should take
D
positions in a manner that in case two or three men
come inside together then ... how many magazines
do you have?]
T: Char - paanch hain.
E
[Four-five (4-5) are there.]
UK: Aapki magazine ko burst pe kar lo. Char char hain
naa?
F [Put your magazine on 'burst' mode. Each of you
have four (4), right?]
T: Haan jee.
[Yes jee.
G
UK: Aap magazine ko load kar, aap apni gun ko burst
par kar lo. Jab bhi fire karna hai.
(You load the magazine and put your gun on burst
when you have to fire.]
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 525
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
T: Sahi. A
[Right.]
UK: Phir control karke chhota karna hai kyonki jab entry
hogi toh ek ke baad doosra, doosre ke baad
teesra, aisa aana hai unhonein. Tab burst fire karna B
hai. Zarase bhi nazdeek aayenge to grenade fenko
aur jaise grenade fenkoge tab aapne bahar nikal
kar saamne daayein baayein firing kami hai toh phir
Fadullah.
c
[Then you have to control and make it smaller
because when they enter, the second would come
after first and the third after the second. They would
come like this. Then you have to fire the 'burst'. If
they come any closer, then throw the grenade and D
as soon as you throw the grena~e come out and
fire in the front and to the right and left and then ...
Fadullah!]
E
UK: Theek hai naa, hausle dena. Mere dost gun burst
par karlo. Matlab bilkul position set karke baitho.
Aap kissi aad se baithe ho ya khule baithe ho?
[Is it all right, give courage. My friend put the gun
F
on 'burst'. I mean sit in perfect position. Are you
sitting behind some cover or are you exposed?]
T: Side par baithe hain.
[We are sitting at one side.] G
UK: Aise baithen ke andar aate hain, aapke upar nazar
nahin pade. Aap kissi safe ke peechhey bairal gun
ki nikaal kar baitho. Yeh ek andaaza hai. Khada
banda nazar aa jaata hai. Aaap aise position leke
H
526 · SUPREME COURT REPORTS [2012] 8 S.C.R.
A baitho, unko andar aate hi unhein nazar ghumani
pade, unko clear karna pade, woh kamre clear kar
rahe hain. Sabse pehle unhone clear karna hai.
Aapke kamre mein bed aur saamaan kitna hai?
[Sit in a manner that you may not be within the sight
B
of someone coming inside. Sit behind some sofa
with the barrel of the gun sticking out. This is only a
suggestion. A standing man is easily sighted. Sit
at a position that on coming inside they may have
to look around, they may have to make clear. They
c are clearing the rooms. First of all they have to
clear. How many beds and other articles are there
in your room?]
T: Haan jee hai.
D
[Yes jee it is there.]
UK: Aapke kamre mein bed saamaan hai na unki aad
leke baitho toh aap uske peechhey dekhkar
baithna. Bahar jab aap grenade fenkna hai toh aap
E ek bandene peechhey ho jaana hai. Achha, jaise
grenade khatam hoti hai bahar nikal ke dono taraf
se fire shuru karna. Jitna dushman mama ya
bhaagna, poora floor kaabu kar lena, lnsha-allah.
Uske baad ladhai chaalu hogi.
F
[In your room there is bed and other articles. Make
sure that you sit behind them. When you are
throwing grenade outside, then one of you should
stand behind the other. And as the grenade's
G explosion dies down, go out and start firing on both
sides. Kill as many of the enemy as possible or
make them flee, control the entire floor, God-willing
and then the battle will begin.]
T: lnsha-Allah, theek hai.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 527
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.)
[God-willing alright.) A
UK: Matlab position safe rakho, agar aapke aage bed
hai na foam wagaira kaa, lakkad ka foam ka sofa
hai. Aisi cheez se aadh milegi agar aapko grenade
fenkna padta hai to fenko. Matlab aisa darwaza B
kholkar fenko apne pairon mein nahin fenk lena.
Lekin yeh option hai. Magazine laga ke sab tarah
se taiyar rakho. lnsha-allah jo ek banda milta hai
lnsha-allah chhodna nahin hai.
[I mean keep your position safe. If you have a bed c
in front of you of foam etc. or a sofa of foam or wood.
Such things will provide you cover, if you have to ·
throw the grenade then throw. I mean open the door
and throw it and don't throw it on your own feet. But
there is an option. Fix the magazine and be ready D
in all ways. God-willing, if you get hold of a person
God-willing he is not to be spared.]
Talk No. 12 (Ext. no. 982)
UK: Salaam vaaleykum. Fahadullah mere veer; ladayee E
ki koyi shikast banti nahin ki aap bahar aakar
ladain. Grenade fenk kar wahan se nikalne ki
koshish karein, kahin aur jaa sakein.
[Salaam vaaleykum Fahadullah my brother. You F
should come out and fight. Throw the grenade and
try to come out so that you may change your
position.]
T: Grenade fenk diye hain donon.
G
[I have thrown both the grenades.)
UK: Grenade fenk diye hain?
[Have you thrown the grenades.]
H
528 SUPREME COURT REPORTS [2012) 8 S.C.R.
A T: Haan jee.
[Yes jee.)
UK: Ab kalashan magazine kitni hain tumhare paas?
B [How many kalashan magazines do you have?]
T: Mere paas do hi hain.
[I have only two.]
C UK: Giraftaari waali shakl nahin hone deni. Yeh baat
yaad rakhni hai.
[rhere should be no situation of arrest. You must
remember that.)
D T: Nahin. lnsha-alla, lnsha-allah.
[No. God-willing, God-willing)
UK: Aur ladhna padhega toh hi maamla seedha hoga,
aisa na ho ki woh dhooein ka bomb fenk kar aap
E
behosh kar dein aur jaayein aur aapko uthalein.
[And it is only by fighting that the situation will be
straightened out. There should not be a situation
that they make you unconscious by throwing a
F smoke bomb and later take you (alive).)
T: Nahin.
[No.]
G UK: Woh badha nuksaan hai. Aap aagey badhkar
ladhein, aapko kaheen se bhi nazar aa jaate hain.
Khidkiyon se aap nahin dekh sakte, nazar aate hi
aap fire karo. Fire karo, burst maaro. Uske saath
halchal mach jayeegi toh aap nikalne ki koshish
H karo.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 529
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
[That would be a great loss. You come forward and A
fight if you see (them) from anywhere. Cannot you
see from the window? Fire as soon as you see
(them). Fire, shoot a burst. That would cause a
commotion and then you can try to get out.]
B
T: Chalo, try karte hain, lnsha-allah.
[Very well, I will try, God-willing.]
UK: Haan mere veer; gun ki barrel nikalein, burst
nikalein, ussi burst ke saath dono side nikale aur c
aap nikal kar jagah badalne ki koshish karo.
[Yes my brother, put the barrel of the gun outside
and fire a burst and with the firing of the burst come
out and fire on both sides and try to change your
D
place.]
T: Theek hai jee.
[All right jee.]
E
UK: Jahaan baithe hain aapko pata hai ki fire aata hai
udhar dono taraf se? Pandrah-bees goli nikal jaaye,
poori magazine khaali ho jaaye aur doosari
magazine aapke haath mein hai woh laga do aur
aap wahan se nikal jaao.
F
[From where you are sitting do you know that shots
are coming (at you) from both sides? Fire 15-20
bullets, empty your whole magazine, load the other
magazine that is in your hand, and get away from
that spot.] G
T: Theek hai, lnsha-allah.
[All right, God-willing]
H
530 SUPREME COURT REPORTS [2012) 8 S.C.R.
A UK: Himmat karni hai mere veer, ghabraana nahin hai,
lnsha-allah; goli lagey toh kaamyaabi hai Allah
intezaar kar raha hai.
[Be brave, my bother, don't worry. God-willing,
getting shot by a bullet is to be successful. Allah is
B
waiting for you.)
Killing of hostages
400. (5) TRANSCRIPTS FROM NARIMAN HOUSE
c Talk No. 26 (Ext. no. 990)
(The collaborator talking from across the border has been
marked as 'UK' and the terrorists holed up in the Nariman
House are marked as T)
D
UK.II : Achha, aap yeh khyaal rakhna; jo bandhi hain
naa, yeh jab tak aapke paas hain tab tak yeh
aapke upar fire nahin karenge. Samjha meri baat?
[Well keep this in mind, that as long as these
E hostages are with you, they will not fire at you. You
understand me?]
T: Jee jee.
F [Yes, yes]
UK.II: lnka faayda tabtak hai jabtak aapke upar fire aane
se rok raha hai They are useful only until they are
stopping any firing at you.]
G T: Fire jab open ho jaayga.
[When the firing starts.]
UK.II: Fire jab open ho jaayga toh aap unko khatm kar do.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 531
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
[When the firing starts, finish them.] A
T: Jee Jee
[Yes, yes]
UK.II: Baat samajh aayi aapko? Fire jab open ho jaayga B
to aap unko khatm kar do. Theek hai.
[Do you understand? When the firing starts, then
finish them. All right.]
T: lnsha-allah. c
[God-willing]
UK.II: Jab aapne dekha ke aapke upar dabaav aa raha
hai sabse pehle inhein khatm karo.
D
[When you feel that you are coming under pressure,
then first of all finish them]
T: lnsha-allah.
E
[God-willing]
UK.II: Kisi army ka yeh daava hota hai ki koyi bhi bande
ko taqleef na hate hue kaam karna hota hai.
[Every army has this commitment to do their job F
without causing any harm to anyone.]
T: lnsha-allah. lnsha-allah.
[God-willing, God-willing]
G
UK.II: Abhi baat yeh hai ki inn logon ko bachane ke liye
approach aa rahi hai. Agar yeh log maare jaate
hain toh unke desh ke saath taalukaat kharab ho
sakte hain. Shor bhi mach jaayga.
H
532 SUPREME COURT REPORTS (2012] 8 S.C.R.
A [Now the fact is that approaches are being made
to save those people (hostages). If they are killed
the relationship with their countries is likely to get
strained. There may be a lot of noise too.]
T. lnsha-allah. lnsha-allah.
B
[God-willing, God-willing.]
401. In view of the enormous evidence of all possible
kinds it is clear that the terrorist attack on Mumbai was
c in pursuance of a larger conspiracy of which the
appellant was as much part as the nine dead accused and
the other wanted accused. It will be futile even to suggest
that the appellant while he was shooting at CST and at
the other places along with Abu Ismail had no connection
0 with the attacks taking place at the other targets by the other
eight (8) members of the terrorist group. From the evidence on
record it is further cle bar that the conspiracy did not stop with
the group of 10 terrorists leaving the Pakistani shore. It
continued developing and growing even while the larger
E conspiracy was under execution. In course of execution of the
larger conspiracy by the ten terrorists in Mumbai, they were
being advised and guided to meet the contingencies arising
at those three different places. In other words, newer
conspiracies were being hatched even in course of execution
of the larger conspiracy and the conspiracies came to an end
F only when all the remaining eight terrorists were killed at the
three places where they were holding up.
AN OBITER:
G Role of the media:
402. Before parting with the transcripts, we feel compelled
to say a few words about the way the terrorist attacks on Taj
Hotel, Hotel Oberoi and Nariman House were covered by the
mainstream, electronic media and shown live on the TV screen.
H From the transcripts, especially those from Taj Hotel and
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 533
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.)
Nariman House, it is evident that the terrorists who were A
entrenched at those places and more than them, their
collaborators across the border were watching the full show on
TV. In the transcripts there are many references to the media
reports and the visuals being shown on the TV screen. The
collaborators sitting in their hideouts across the border came B
to know about the appellant being caught alive from Indian TV:
they came to know about the killing of high ranking police
officers also from Indian TV. At one place in the transcript, the
collaborators and the terrorists appear to be making fun of the
speculative report in the media that the person whose dead c
body was found in Kuber was the leader of the terrorist group
whom his colleagues had killed for some reason before leaving
the boat56 • At another place in the transcript the collaborators
tell the terrorists in Taj Hotel that the dome at the top (of the
building) had caught fire. The terrorists holed up in some room D
were not aware of this. The collaborators further advise the
terrorists that the stronger they make the fire the better it would
be for them 57 • At yet another place the terrorists at Hotel Taj tell
the collaborators that they had thrown a grenade. The
Collaborators reply, "the sound of the grenade has come, they E
have shown the grenade, the explosion has taken place, people
are wounded 58". At yet another place the collaborators tell the
terrorists at Hotel Oberoi that the troops were making their
position very s!rong on the roof of the building 59 • At yet another
place the collaborators tell the terrorists at Taj Hotel the exact
position taken by the policemen (close to a building that F
belonged to the navy but was giv!!n to the civilians) and from
where they were taking aim and firing at them (the terrorists)
and advised them the best position for them to hit back at those
policemen 60 • There are countless such instances to show that
G
56. Nariman House, Talk No. 26 (Ext. no. 990)
57. Hotel Taj, Talk No. 4 (Ext. no. 971)
58 Hotel Taj, Talk No. 8 (Ext. No. 972)
59. Hotel Oberoi, Talk No. 4 (Ext. no. 979)
60. Hotel Taj, Talk No. (Ext. No. 970) H
534 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the collaborators were watching practically every movement of
the security forces that were trying to tackle the terrorists under
relentless gun fire and throwing of grenades from their end.
403. Apart from the transcripts, we can take judicial notice
8 of the fact that the terrorists attacks at all the places, in the
goriest details, were shown live on the Indian TV from
beginning to end almost non-stop. All the channels were
competing with each other in showing the latest developments
on a minute to minute basis, including the positions and the
C movements of the security forces engaged in flushing out the
terrorists. The reckless coverage of the terrorist attack by the
channels thus gave rise to a situation where on the one hand
the terrorists were completely hidden from the security forces
and they had no means to know their exact position or even
the kind of firearms and explosives they possessed and on the
D other hand the positions of the security forces, their weapons
and all their operational movements were being watched by the
collaborators across the border on TV screens and being
communicated to the terrorists.
E 404. In these appeals, it is not possible to find out whether
the security forces actually suffered any casualty or injuries on
account of the way their operations were being displayed on
the TV screen. But it is beyond doubt that the way their
operations were freely shown made the task of the security
F forces not only exceedingly difficult but also dangerous and
risky.
405. Any attempt to justify the conduct of the TV channels
by citing the right to freedom of speech and expression would
be totally wrong and unacceptable in such a situation. The
G freedom of expression, like all other freedoms under Article 19,
is subject to reasonable restrictions. An action tending to violate
another person's right to life guaranteed under Article 21 or
putting the national security in jeopardy can never be justified
by taking the plea of freedom of speech and expression.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 535
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
406. The shots and visuals that were shown live by the TV A
channels could have also been shown after all the terrorists·
were neutralized and the security operations were over. But, in
that case the TV programmes would not have had the same
shrill, scintillating and chilling effect and would not have shot up
the TRP ratings of the channels. It must, therefore, be held that B
by covering live the terrorists attack on Mumbai in the way it
was done, the Indian TV channels were not serving any national
interest or social cause. On the contrary they were acting in their
own commercial interests putting the national security in
jeopardy. c
407. It is in such extreme cases that the credibility of an
institution is tested. The coverage of the Mumbai terror attack
by the mainstream electronic media has done much harm to
the argument that any regulatory mechanism for the media must
only come from within. D
ARGUMENTS
I. Denial of Due Process
Mr. Raju Ramachandran: E
408. In the face of the evidence stacked against the
appellant, overwhelming both in volume and in weight, Mr.
Ramachandran took a course that would neatly side-step
everything. He struck at the root. Mr. Ramachandran submitted F
that the appellant did not get a fair trial and added that the
denial of fair trial, for any reason, wittingly or unwittingly, would
have the same result: it would render the trial a nullity and no
conviction or sentence based on such a trial would be legal or
enforceable. Mr. Ramachandran prefaced his submissions by G
gently reminding the court that, having taken the path of the rule
of law, we must walk the full mile; we cannot stop halfway and
fall short of the standards we have set for ourselves.
409. The learned Counsel submitted that the right to fair
trial is an integral part of the right to life and personal liberty H
536 SUPREME COURT REPORTS [2012] 8 S.C.R.
A guaranteed under Article 21 of the Constitution of India, and
that the fundamental right under Article 21 was inalienable and
there can be no question of any waiver of the right by any
person. In support of the first limb of his submission, he referred
to the decisions in Zahira Habibullah Sheikh (5) v. State of
B Gujarat6 1, T. Nagappa v. Y.R. Muralidhal'3 2 , Noor Aga v. State
of Punjab 63 , NHRC v. State of Gujarat64 , Jayendra Vishnu
Thakur v. State of Maharashtra65 and G. Someshwar Rao v.
Samineni Nageshwar Rao66 ; and in support of the second limb
he relied upon the decisions in Behram Khursheed v. State
c of Bombay67 and Olga Tellis v. Bombay Municipal Corp. 66 .
410. Proceeding from the premise that fair trial is an
inalienable right of every person, Mr. Ramachandran submitted
that in case of the appellant the Constitutional guarantee
remained unsatisfied because of denial to him of two valuable
D Constitutional rights/protections: first, the right to counsel at the
earliest, as provided under Article 22 (1) of the Constitution;
and secondly, the right to protection against self-incrimination
as stipulated by Article 20(3) of the Constitution.
E 411. Elaborating the first submission regarding the right
to counsel at the earliest, Mr. Ramachandran said that the
appellant was not made aware of his Constitutional right to
counsel under Article 22(1) of the Constitution at the time of his
arrest and production before the Judicial Magistrate in remand
F proceedings. Mr. Ramachandran submitted that a mere offer
of legal aid is not the same as being made aware that one
61. (2006) 3 sec 374 (paragraphs 33-39 with special reference to paragraph
38
6~. (2008) 5 sec 633 (paragraph 8, page 636)
G 63. (2008) 16 sec 417 (paragraphs 71, 113, 114)
64. (2008) 16 sec 497 (paragraph 5, page 499)
65. (2009) 7 sec 104 (paragraph 53, page 127)
66. (2009) 14 sec 677 (paragraph 10, page 680)
67. (1955) 1 SCR 613 (page 653, 2'' paragraph, 654)
H 68. (1985) 3 sec 545 (paragraph 28 and 29, page 569, 570)
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 537
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J)
has the Constitutional right to consult, and to be defended by, A
a legal practitioner, and that simply the offer of legal aid does
not satisfy the Constitutional requirement. He stated that until
the appellant was produced before the Additional Chief
Metropolitan Magistrate on February 17, 2009, for recording
his c_onfession, he was not informed of such a right 69 .The B
learned magistrate also did not tell him that under the
Constitution he had the fundamental and inalienable right to
consult and be represented by a lawyer, but simply asked him
whether he wanted a lawyer. This, according to Mr.
Ramachandran, resulted in the confession being recorded c
without the appellant being made aware of his Constitutional
right against self-incrimination under Article 20(3). Mr.
Ramachandran further submitted that the repeated cautioning
administered by the learned magistrate to the appellant and her
admonitions to him about making the confession undoubtedly D
satisfied the requirements under Section 164 of the Code of
Criminal Procedure, but they fell far short of higher Constitutional
standards. The learned Counsel maintained that telling the
appellant that he was not bound to make the confession and
that it could be used against him did not amount to E
Constitutional compliance. The magistrate was required to
inform him of his rights under Article 22(1) and 20(3) of the
Constitution. It is only if an accused is so informed that he can
be said to have made a Constitutionally acceptable choice
either to have or not to have a lawyer or to make or not to make
a confession. F
412. The learned Counsel sought to buttress his
submission by referring to the decision in Nandini Satpathy v.
P. L. Dam70 and through Nandini Satpathy to the decision of
G
69. This satement is factually inaccurate but in fairness to Mr. Ramachandran
~ must be stated that, as the facts unfolded and the correct picture emerged,
he immediately corrected himself and adapted his submissions, as we
shall see in due course, to the correct facts.
70. (1978) 2 sec 424 H t
538 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the US Supreme Court in Miranda v. Arizona 71 . He referred to
paragraphs 42 to 44 of the judgment that contain the discussion
regarding the stage at which the right under Article 20(3) comes
into operation; paragraphs 62 to 65 that deal with the stage at
which the accused gets the right to have the assistance of a
B lawyer; and put particular stress on paragraphs 21 to 34 of the
judgment, where the right under Article 20(3) of the Constitution
and the provisions of Section 161(2) of the Code of Criminal
Procedure (said to be the parliamentary gloss on the
constitutional clause!) are seen through the Miranda prism.
c 413. Apart from Nandini Satpathy, Mr. Ramachandran
relied upon the decision of this Court in Khatri (II) v. State of
Bihar2 relating to the infamous case of blinding of prisoners
in Bihar. In Khatri, this Court reiterated that the right to free legal
aid is an essential ingredient of due process that is implicit in
D the guarantee of Article 21 of the Constitution. ·
414. Mr. Ramachandran also relied upon the decision of
this Court in State (NCT of Delhi) v. Navjot Sandhu73 . He
referred to paragraphs 159 to 164 of the judgment where the
E Court discussed the decision in Nandini Satpathy and the US
decision in Miranda and found that the safeguards and
protections provided to the accused under Sections 32 and 52
of the Prevention of Terrorism Act, 2002 (POTA), apart from
stemming directly from the guarantees enshrined in Articles 21
F and 22 (1) of the Constitution and embodying the guidelines
spelt out in the earlier decisions of this Court in Kartar Singh
v. State of Punjab74 and D.K. Basu v. State of West BengaF 5 ,
were in complete harmony with the observations of this Court
in Nandini Satpathy as well as the Miranda rule enunciated by
G 11. 384 us 436 (1966)
12. (1981) 1 sec 627
73. (2005) 11 sec 600
74. (1994) 3 sec 569
H 75. (1997) 1 sec 416
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 539
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
the U.S. Supreme Court. Mr. Ramachandran also referred to A
paragraphs 181, 182 and 185 of the judgment, where the Court
eschewed the confessional statement of the accused from
consideration on the grounds that they were not apprised of the
right to consult a legal practitioner either when they were initially
arrested or after POTA was introduced in the case. The learned B
Counsel contende.d that the reasons for which the Court held
that strict compliance with the Constitutional safeguards was
necessary in Navjot Sandhu would hold equally good in the
present case as well. As observed in that case, the protections
under Sections 32 and 52 of the POTA ultimately flow from c
Articles 20(3), 21 and 22(1) of the Constitution. It would,
therefore, be incorrect to contend that the magistrate recording
a confession under Section 164 of CrPC had no obligation to
comply with the Miranda rule or the requirements of Sections
32 and 52 of the POTA only because Miranda and Navjot
0
Sandhu are cases in which confessions to police officers were
admissible while, under the normal law of the land, confession
to police officers are not admissible in evidence. It is precisely
because the police cannot be expected to inform the accused
of his Constitutional rights that the magistrate must be required E
to do so when the accused is brought for recording his/her
confession. Mr. Ramachandran submitted that in Navjot
Sandhu the Court actually implanted the right to information
within articles 20(3), 21 and 22(1) and submitted that in order
to give any meaningful content to those three articles it was
necessary to read them along with Article 19(1) (a) of the F
Constitution. He submitted that unless a person is informed, in
clear terms, that it is his basic right to be defended by a lawyer
he would not be in a position to exercise the right under Article
22(1) in any informed and effective manner. He contended that
it should be obligatory for every authority responsible for G
deprivation of liberty of a person to inform him of his rights. It,
thus, followed that a magistrate, at the stage of recording a
confession under Section 164 CrPC, should mandatorily make
the accused aware of his rights under Articles 20(3) and 22(1 ).
Mr. Ramachandran submitted that in this case, though the H
540 SUPREME COURT REPORTS [2012] 8 S.C.R.
A magistrate (PW-218) asked the appellant whether he required
a lawyer, she was also bound to find out whether he was made
this offer earlier. He further submitted that even strict
compliance with Section 164 CrPC would not fulfil the
Constitutional requirements in the absence of a 'Constitutional'
B choice by the accused to avail or not to avail of a defence
lawyer. He pointed out that Section 304 of the CrPC makes it
mandatory to provide a defence lawyer at the trial stage and
this requirement of law cannot be waived by the accused. In
the same way, he argued, the administration of justice mandates
c the provision of a defence lawyer at the earliest because a
lawyer provided at the trial stage would be disabled from
offering any effective defence if he is presented with a fait
accomp/i in the form of a confession in which the accused
condemns himself. It is, therefore, imperative that a
Constitutionally acceptable choice is made by the accused
0
before a point of no return is reached. He further submitted that
a statutory caution administered by a magistrate, howsoever
carefully done in letter and spirit, cannot be a substitute for a
lawyer's advice. By the very nature of their differing professions,
E a judge and a lawyer perform different roles in this context. A
judge is required to be detached and can therefore only
administer cautions. The nature of legal advice is entirely
different.
415. Mr. Ramachandran further submitted that the omission
F to make the appellant aware of his Constitutional right to
consult, and be defended by, a legal practitioner resulted in the
denial of protection against self-incrimination guaranteed under
Article 20(3) of the Constitution. In support of the submission,
he relied upon a recent decision of this Court in Se/vi and
G others v. State of Kamataka 76 • He referred to paragraphs 92
to 101 under the marginal heading "Historical origins of 'the
right against self-incrimination"'; paragraphs 102 to 112 under
the marginal heading "Underlying rationale of the right against
H 76. (2010) 7 sec 263
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 541
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
self-incrimination"; paragraphs 113 to 119 under the marginal A
heading "Applicability of Article 20(3) to the stage of
investigation"; and paragraphs 120 to 144 under the marginal
heading "Who can invoke the protection under Article 20(3)?".
Mr. Gopal Subramanium: B
416. In reply to the submissions made on behalf of the
appellant, Mr. Subramanium submitted that all Constitutional
rights of the appellant, including the right to be defended by a
lawyer and protection against self-incrimination, were fully
secured and up-held and it is incorrect to say that the trial of C
the appellant was vitiated by denial of any Constitutional right
or privilege to him. Mr. Subramanium agreed that the
Constitution of India indeed accorded a primary status to the
rights of a person accused of committing any offences. Article
21 of the Constitution guaranteed the right to life and personal D
liberty in the widest amplitude, and other related provisions in
the Constitution provided for the safeguards essential to
preserve the presumption of innocence of the accused, as well
as for the trial of the accused in an adversarial system. He
further pointed out that the rights, privileges and protections E
accorded by the Constitution to a person accused of committing
a criminal offence were comprehensively translated into the
statutory scheme framed by Parliament; and that the relevant
provisions of the Criminal Procedure Code, 1973, and the
Indian Evidence Act, 1872, were crafted in such a way as to F
translate the Constitutional promises to the accused into reality
and to ensure that the rights, privileges and protections given
to the accused are, in fact, available to him in actual practice.
417. The Constitutional rights and protection referred to by
Mr. Ramachandran are to be found in Articles 20(3), 21 and G
22(1) which are as follows:
"20. Protection in respect of conviction for offences.
H
542 SUPREME COURT REPORTS [2012) 8 S.C.R.
A (3) No person accused of any offence shall be compelled
to be a witness against himself.
21 - Protection of life and personal liberty. - No person
shall be deprived of his life or personal liberty except
B
according to procedure established by law.
22. Protection against arrest and detention in certain
cases.-(1) No person who is arrested shall be detained
in custody without being informed, as soon as may be, of
the grounds for such arrest nor shall he be denied the right
c to consult, and to be defended by, a legal practitioner of
his choice."
418. Mr. Subramanium submitted that the Constitution
prescribed values and norms and set out standards of socio-
D political life, but for actual enforcement those norms and
standards were manifested in the provisions of the CrPC. He
submitted that in order to understand the true import and
contents of the provisions of the CrPC, one must look for the
Constitutional norms and standards incorporated in those
E provisions. Thus viewed, the provisions of the CrPC would
appear to be the Constitutional guarantees at work.
419. He referred to Section 161 of CrPC that provides as
follows:
F 161. Examination of witnesses by po/ice.-(1) Any police
officer making an investigation under this Chapter, or any
police officer not below such rank as the State Government
may, by general or special order. prescribe in this behalf.
acting on the requisition of such officer, may examine orally
G any person supposed to be acquainted with the facts and
circumstances of the case.
(2) Such person shall be bound to answer truly all questions
relating to such case put to him by such officer, other than
questions the answers to which would have a tendency
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 543
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
to expose him to a criminal charge or to a penalty or A
forfeiture.
(3) The police officer may reduce into writing any statement
made to him in the course of an examination under this
section; and if he does so, he shall make a separate and 8
true record of the statement of each such person whose
statement he records:
Provided that statement made under this sub-section may
also be recorded by audio-video electronic means.
c
(Emphasis supplied)
420. He pointed out that the provisions of sub-section (2)
of Section 161 that disallow incriminating answers to police
interrogations, are clearly an extension and application of the D
principle enshrined in Article 20(3).
421. A similar position obtains from the provisions of
Section 162, which reads as follows:
"162. Statements to police not to be signed: Use of E
statements in evidence.- (1) No statement made by any
person to a police officer in the course of an investigation
under this Chapter, shall, if reduced to writing, be signed
by the person making it; nor shall any such statement or
any record thereof, whether in a police diary or otherwise, F
or any part of such statement or record, be used for any
purpose, save as hereinafter provided, at any inquiry or
trial in respect of any offence under investigation at the
time when such statement was made:
Provided that when any witness is called for the prosecution G
in such inquiry or trial whose statement has been reduced
into writing as aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with the
permission of the Court, by the prosecution, to contradict
H
544 SUPREME COURT REPORTS [2012] 8 S.C.R
A such witness in the manner provided by Section 145 of the
Indian Evidence Act, 1872 (1 of 1872); and when any part
of such statement is so used, any part thereof may also
be used in the re-examination of such witness, but for the
purpose only of explaining any matter referred to in his
B cross-examination.
(2) Nothing in this section shall be deemed to apply to any
statement falling within the provisions of clause (1) of
Section 32 of the Indian Evidence Act, 1872 (1 of 1872),
or to affect the provisions of Section 27 of that Act.
c
Explanation.-An omission to state a fact or circumstance
in the statement referred to in sub-section (1) may amount
to contradiction if the same appears to be significant and
otherwise relevant having regard to the context in which
D such omission occurs and whether any omission amounts
to a contradiction in the particular context shall be a
question of fact."
(Emphasis supplied)
E 422. Mr. Subramanium stated that sub-section (1) of
Section 162, insofar as it makes any statement, in any form,
made to police officers inadmissible, is a mirror reflection of
the right against self-incrimination contained in Article 20(3). He
pointed out that sub-section (2) of Section 162 carves out only
F limited exceptions to sub-section (1), to the extent of statements
falling under the provisions of Sections 32(1) and 27 of the
Evidence Act, 1872.
423. Section 163 of CrPC is also significant in its import:
G "163. No inducement to be offered.- (1) No police officer
or other person in authority shall offer or make, or cause
to be offered or made, any such inducement, threat or
promise as is mentioned in Section 24 of the Indian
Evidence Act, 1872 (1 of 1872).
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 545
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
(2) But no police officer or other person shall prevent, by A
any caution or otherwise, any person from making in the
course of any investigation under this Chapter any
statement which he may be disposed to make of his own
free will:
B
Provided that nothing in this sub-section shall affect the
provisions of sub-section (4) of Section 164"
(Emphasis supplied)
424. Mr. Subramanium submitted that sub-section (1). of c
Section 163 contains the universally accepted principle,
enjoining against inducement or coercion etc.; but it is sub-
section (2) that rounds off and completes the provision by
introducing the distinction between a statement obtained by
inducement, coercion etc., and another made freely and D
voluntarily and separating the one from the other; sub-section
(2) upholds the individual volition of an accused person to
confess to an offence, as an attribute of his free will.
425. Mr. Subramanium further submitted that the scheme
of Sections 161 to 163 needs to be understood in the context E
of the investigation process in India. He stated that the
inadmissibility of statements by the accused to the police and
the resultant distancing of the police from the accused are
meant to adequately protect and uphold the rights and liberty
of the accused. Though primarily providing a procedural F
framework, the Code also contained provisions meant to be
substantive safeguards for an accused person. Under Indian
law, there is no concept of incriminatory statements whilst in
the course of police investigation (except as contemplated
under Section 162(2)). The law contemplates only judicial G
confession, recorded in accordance with Section 164 CrPC,
to be admissible as evidence.
426. Section 164 CrPC is another statutory incorporation
of the Constitutional privilege against self-incrimination and it H
546 SUPREME COURT REPORTS [2012] 8 S.C.R.
A reads as follows:
"164. Recording of confessions and statements.- (1) Any
Metropolitan Magistrate or Judicial Magistrate may,
whether or not he has jurisdiction in the case, record any
confession or statement made to him in the course of an
B
investigation under this Chapter or under any other law for
the time being in force, or at any time afterwards before
the commencement of the inquiry or trial:
1[Provided that any confession or statement made under
c this sub-section may also be recorded by audio-video
electronic means in the presence of the advocate of the
person accused of an offence:
Provided further that no confession shall be recorded by
D a police officer on whom any power of a Magistrate has
been conferred under any law for the time being in force.]
(2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is not
bound to make a confession and that, if he does so, it may
E be used as evidence against him; and the Magistrate shall
not record any such confession unless, upon questioning
the person making it, he has reason to believe that it is
being made voluntarily.
F (3) If at any time before the confession is recorded, the
person appearing before the Magistrate states that he is
not willing to make the confession, the Magistrate shall not
authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner
G provided in Section 281 for recording the examination of
an accused person and shall be signed by the person
making the confession; and the Magistrate shall make a
memorandum at the foot of such record to the following
effect:-
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 54 7
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
"I have explained to (name) that he is not bound to make A
a confession and that, if he does so, any confession he
may make may be used as evidence against him and I
believe that this confession was voluntarily made. It was
taken in my presence and hearing, and was read over to
tho person making it and admitted by him to be correct, B
and it contains a full and true account of the statement
made by him.
•
(Signed) A.B.
Magistrate." C
(5) Any statement (other than a confession) made under
sub-section (1) shall be recorded in such manner
hereinafter provided for the recording of evidence as is,
in the opin.ion of the Magistrate, best fitted to the
circumstances of the case; and the Magistrate shall have D
powe; to administer oath to the person whose statement
is so recorded.
(6) The Magistrate recording a confession or statement
under this section shall forward it to the Magistrate by E
whom the case is to be inquired into or tried."
(Emphasis supplied)
427. Mr. Subramanium pointed out that sub-section (1) of
Section 164 provides for the recording of a confession during F
the course of an investigation under Chapter XII of CrPC; sub-
section (2) of Section 164 mandates the magistrate to
administer the pre-confession caution to the accused and also
requires the magistrate to be satisfied, as a judicial authority,
about the confession being made voluntarily. Further, sub- G
section (2) has to be read with sub-section (3), wherein it is
provided that if, at any time before the confession is recorded,
the person appearing before the magistrate states that he is
not willing to make the confession, the magistrate shall not
H
548 SUPREME COURT REPORTS [2012] 8 S.C.R.
A authorise the detention of such person in police custody. The
post-confession safeguard is incorporated under sub-section
(4), wherein the magistrate is required to make a
memorandum at the foot of the confession regarding the
caution administered to the accused person and a certificate
B to the effect that the confession as recorded is a full and true
account of the statement made .
•
428. The protection of the privilege of the accused against
self-incrimination is thus cast as a mandatory duty upon the
C magistrate, a judicial authority, under sub-sections (2), (3) and
(4) of Section 164.
429. Mr. Subramanian further submitted that the confession
of the accused under Section 164 CrPC is not a statement
recorded under oath and, therefore, the proceedings retain their
D adversarial character and do not take any inquisitorial colour.
He contrasted the recording of a confession under Section 164
with the examination of the accused as a witness in support of
his own case (und~r Section 315 CrPC), wherein the accused
is examined on oath, and pointed out that the voluntary
E character of the judicial confession is, thus, ascertained at three
stages:
(i) Under Section 164(2), by the magistrate prior to the
recording of the confession;
F (ii) Under Section 164(4), by the magistrate
subsequent to the recording of the confession; and
(iii) Upon the examination of the magistrate, who
recorded the confession, on oath in course of the
G trial.
430. Mr. Subramanium argued that Indian law, in regard
to the investigation of crimes, recognised and put into
application the extremely important distinction between an
involuntary statement obtained by inducement or coercion and
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 549
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
a voluntary statement. The former was condemned and A
completely excluded from consideration as a piece of evidence
but the latter was accepted as a sign of respect for the
expression of free will. Thus, on the one hand, a confession or
a statement cannot be obtained by means of inducement, threat
or promise, as prohibited by sub-section (1) of Section 163, B
but, on the other hand, a confession made voluntarily as an
expression of free will and volition cannot be disallowed as
provided in sub-section (2) of Section 163 and Section 164.
431. Here Mr. Subramanium referred to the decision of this
Court in State of Bombay v. Kathi Kalu Oghad'7 , in which an C
eleven-Judge Bench of this Court examined the true import of
Article 20(3) and held that "an accused person cannot be said
to have been compelled to be a witness against himself
simply because he made a statement while in police custody
without anything more"; and that "the mere questioning of an D
accused person by a police officer, resulting in a voluntary
statement, which may ultimately tum out to be incriminatory,
is not 'compulsion"'.
432. 111 light of the decision in Kathi Kalu Oghad, Mr. E
Subramanium submitted that voluntary statements are not
proscribed by Article 20(3) and do not amount to violation of
the privilege against self-incrimination.
433. Having thus established the connections between the
provisions of the CrPC and the relevant Articles of the
F
Constitution, Mr. Subramanium contended that the provisions
of Section 161, 162, 163 and 164 CrPC are mirror images of
the Constitutional safeguards provided under Articles 20(3) and
21, and that compliance with the statutory provisions would·
amount to effective compliance with the Constitutional G
provisions. The provisions of the CrPC could naturally be tested
against these Constitutional safeguards, and the manner in
which the CrPC provisions are to be interpreted would be
77. [1962] 3 SCR 10. H
550 SUPREME COURT REPORTS [2012]·8 S.C.R
A informed by the Constitutional safeguards in Articles 20 to 22,
but once the CrPC provisions stand complied with, there is
no scope for a separate and distinct species of Constitutional
compliance. Thus, the provisions of the CrPC would be
amenable to be tested on the grounds of 'due process', but
B having passed such a test, compliance with the CrPC
would entail compliance with the various Constitutional
safeguards. The purpose of placing such safeguards in the
Constitution is not to create a separate level of
compliance, but to emphasize the importance and
c enduring nature of these protections by giving them
Constitutional status.
434. Dealing with the right to legal assistance, ML
Subramanium submitted that the right to legal aid and the stage
when the right comes into effect are to be found in Article 22(1)
D of the Constitution, which states that "no person who is arrested
. .. .. . shall be denied the right to consult, and to be defended
by, a legal practitioner of his choice". According to ML
Subramanium, Article 22(1) has thus two significant facets:
E (i) The enablement of an arrested person to consult
a legal practitioner of his choice;
(ii) The right of an arrested person to be represented
by a legal practitioner of his choice.
F 435. He submitted that the phrase "to be defended' made
it clear that the character of the right guaranteed under Article
22(1) transforms from an enablement to a positive right only
when an arrested person is put on trial.
G 436. In this regard, he made a reference to the provisions
of Section 304 CrPC. He called the provisions of Section 304
CrPC as the statutory enablement of the right to legal aid and
pointed out that the Section provides that, in a trial before the
Court of Session, a pleader may be assigned to the accused
H for his defence if the accused is not represented by a pleader
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 551
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
and it appears to the court that he may not have sufficient A
means to engage a pleader. The effectiveness of the right to
legal aid at the stage of trial is also buttressed by the provisions
of Section 169 CrPC, wherein an accused may be discharged
upon the completion of the process of investigation if there is
insufficient evidence or no reasonable ground of suspicion to B
justify the forwarding of the accused to a magistrate.
437. He added that the rationale behind the provision of
the right to legal aid must be understood in the context of the
Indian system of investigation. Unlike certain foreign
jurisdictions, Indian procedural and evidence laws do not permit C
statements made to the police to be admissible, and only
judicial confessions made to a magistrate in compliance with
the provisions of Section 164 are admissible. The same
position does not obtain in certain other jurisdictions, for
example, the United States of America and the United D
Kingdom, where statements made to police officers are fully
admissible and used as evidence against the accused. There
are, therefore, consequences attached to statements made
whilst in custody of the police in such jurisdictions; however, the
same consequences do not attach under the Indian scheme of E
investigation of crimes.
438. Dealing with the Miranda decision, Mr. Subramanium
submitted that the US decision was rendered in the context of
a system in which statements made to police officers are F
admissible and it has, therefore, no application insofar as the
Indian criminal process is concerned. Under Indian law, vide
chapter XII of the CrPC, read with Sections 24 and 25 of the
Evidence Act, 1872, statements made before the police are
per se inadmissible and a confession is considered as G
admissible only if made to a magistrate, in accordance with the
provisions of Section 164 of the CrPC. Indian law, therefore,
completely excludes the possibility of an extra-judicial
confession extracted by the police in the course of
incommunicado interrogation in which the accused is subjected
to threat, inducement or coercion. H
552 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 439. The learned Counsel further submitted that the
Miranda rule was substantially diluted even in the US and the
Miranda decision has not been consistently and uniformly
followed in the United States itself. In support of this submission,
he referred to the judgment of the US Supreme Court in Davis
B v. United States78 , in which it was held by that Court that the
suspect must unambiguously request for counsel and that the
police were not prohibited from continuing with the interrogation
if the request for counsel by the suspect did not meet the
requisite level of clarity. Significantly, it was observed by the
c US Supreme Court that "a suspect who knowingly and
voluntarily waives his right to counsel after having that right
explained to him has indicated his willingness to deal with the
police unassisted."
440. Mr. Subramanium further submitted that the principle
D of waiver of the privilege against self-incrimination and the right
to counsel was further elaborated upon by the US Supreme
Court in its recent judgment in the matter of Berghuis, Warden
v. Thompkins 79 . In the said judgment, the US Supreme Court
reiterated the requirement of an unambiguous invocation of the
E Miranda rights by an accused person in order to avoid
difficulties of proof and to provide guidance to officers80 • The
US Supreme Court has therefore developed a parallel
jurisprudence with respect to the assessment of the waiver by
the accused of his Miranda rights and has stated in Berghuis
F that a waiver must be voluntary, i.e. the product of a free and
deliberate choice rather than of intimidation, coercion or
deception, and made with full awareness of both the nature of
the right being abandoned and the consequences of the
decision to abandon it. ·
G 441. Mr. Subramanium also submitted that the Miranda
principles that gave the accused the right to silence and an
78. 512 us 452 (1993)
79. 130 S. Ct. 2250 (2010) [State Compilation 1, pg. 138]
H 80. [130 S.Ct. 2250 at 2260 (2010) [State Compilation 1, pg. 151]
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 553
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J]
absolute right to counsel at the stage of police interrogation have A
not been uniformly followed in several other jurisdictions. He
pointed out that the Miranda principle has been held to be
inapplicable in Australia in a judgment of the High Court of
Australia in Dietrich v. R. 81 . In this regard, he also referred to
the judgment of the Supreme Court of Canada in R. v.
8
Sinclair82 . He also referred to a decision of the European Court
in Salduz v. Turkey8 3 , and two decisions of the UK Supreme
Court in Ambrose v. Harris (Procurator Fiscal, Oban)
(Scotland} 84 and McGowan, (Procurator Fiscal, Edinburgh) v.
B (Scotland). 85
c
442. Mr. Subramanium also referred to a number of
academic articles and papers to contend that, in the United
States itself, the Miranda principles have been considerably
eroded by later case laws.
D
443. Next, dealing with the issue of the right to counsel, as
claimed on behalf of the appellant in light of the decision in
Nandini Satpathy, Mr. Subramanium pointed out that at least
in two cases, namely, Poolpandi v. Superintendent, Central
Excise 86 and Directorate of Revenue Intelligence v. Jugal E
Kishore Samra87 , this Court had expressly declined to follow
Nandini Satpathy.
444. Miranda and Nandini Satpathy, which draws heavily
upon the former, are, of course, referred with approval in D.K.
Basu and in Navjot Sandhu, but those decisions were in F
completely different contexts. In D.K. Basu, the Court was
dealing with the use of compulsion during investigation andthe
81. [1992] 177 CLR 292
82. [2010] 2 S.C.R. 310
G
83. (2009) 49 EHRR 19
84. [2011] UKSC 43
85. [2011] UKSC 54
86. (1992) 3 sec 259
87. (2011) 12 sec 352
H
554 SUPREME COURT REPORTS [2012) 8 S.C.R.
A need to insulate the accused from any coercive measures. It
was in that connection that this Court issued guidelines
incorporating the requirements that "the arrestee may be
permitted to meet his lawyer during interrogation, though not
throughout the interrogation". Mr. Subramanium submitted that
8 the decision in D.K. Basu has construed Article 22(1) as an
enablement and not as a mandatory right.
445. Navjot Sandhu was the case of a terrorist attack on
the Parliament of India and, in that case, this Court considered
the import of the right to counsel in the context of the provisions
C of the Prevention of Terrorism Act, 2002. Mr. Subramanium
submitted that a comparison of the provisions of the POTA with
the Miranda principle was quite apt, in that the statutory scheme
of the POTA, like US law, allowed confessions made to police
to be admissible. With respect to the right to counsel, this Court
D made the following observation in paragraph 160 of the
judgment, after analyzing the judgments in Miranda and
Nandini Satpathy:
"Based on the observations in Nandini Satpathy case it is
E possible to agree that the constitutional guarantee under
Article 22(1) only implies that the suspect in the police
custody shall not be denied the right to meet and consult
his lawyer even at the stage of interrogation. In other words,
if he wishes to have the presence of the lawyer, he shall
not be denied that opportunity. Perhaps, Nandini Satpathy
F
does not go so far as Miranda in establishing access to a
lawyer at the interrogation stage."
446. Mr. Subramanium submitted that the Miranda
principle has no application to normal criminal procedure in
G India because similar safeguards and precautions with respect
to the rights of the accused are expressly recognized in India
under the law. He emphasized that the rights of the accused
(including the right against self-incrimination and the right to
legal representation) have been placed on a much higher
H pedestal in Indian law, even prior to such judicial developments
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 555
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Constitutional provisions of Article 20(3) and Article 22(1 ), read A
with the statutory protections under Sections 161, 162, 163 and
164 CrPC as well as Sections 24 and 25 of the Evidence Act,
1872, make the rights of an accused ·sacrosanct.
447. He also referred to the decision in Se/vi, relied upon
8
on behalf of the appellant, and submitted that in Se/vi this Court
made the following observations:-
"ln Indian law, there is no automatic presumption that the
custodial statements have been extracted through
compulsion. In short, there is no requirement of additional C
diligence akin to the administration of Miranda warnings."
448. Summing up his submissions, Mr. Subramanium
formulated them into the following points:-
(i) The right to legal assistance under Article 22(1) is D
not a mandatory right upon arrest, but an
enablement to be exercised by the person arrested.
(ii) The right against self-incrimination under Article
20(3) does not proscribe voluntary statements E
made in exercise of free will and volition.
(iii) The right against self-incrimination under Article
20(3) has been statutorily incorporated in the
provisions of CrPC (i.e. Sections 161, 162, 163 and
F
164) and the Evidence Act, 1872, as
manifestations of enforceable due process, and
thus compliance with statutory provisions is also
compliance with Constitutional requirements.
(iv) The right to counsel as contemplated in the G
judgment of Miranda has not been followed in
either the United States or in other jurisdictions,
particularly due to the qualification of intelligent and
voluntary waiver.
H
556 SUPREME COURT REPORTS [2012] 8 S.C.R.
A THE COURT:
449. Let us first put aside the Miranda decision that
seems to have entered into the discussions of this case as a
red herring. The Miranda decision was rendered under a
system of law in which an utterance made by a suspect before
8
the police could lead to his conviction and even the imposition
of the death penalty. From the judgment in the Miranda case it
further appears that the police would subject the suspect to
incommunicado interrogation in a terribly oppressive
atmosphere. The interrogator would employ all the intimidation
C tactics and interrogations skills at his command, not to find out
the truth but to somehow crack the suspect and make him
'confess' to his guilt. It was in such a situation that the US
Supreme Court evolved the Miranda rules, in order to provide
necessary protection to the accused against self-accusation
D and to ensure the voluntary nature of any statement made
before the police, and came to hold and direct as under:
"To summarize, we hold that when an individual is taken
into custody or otherwise deprived of his freedom by the
E authorities in any significant way and is subjected to
questioning, the privilege against self-incrimination is
jeopardized. Procedural safeguards must be employed to
protect the privilege, and unless other fully effective means
are adopted to notify the person of his right of silence and
to assure that the exercise of the right will be scrupulously
F honored, the following measures are required. He must be
warned prior to any questioning that he has the right to
remain silent; that anything he says can be used against
him in a court of law, that he has the right to the presence
of an attorney, and that if he cannot afford an attorney
G one will be appointed for him prior to any questioning if
he so desires. Opportunity to exercise these rights must
be afforded to him throughout the interrogation. After such
warnings have been given, and such opportunity afforded
him, the individual may knowingly and intelligently waive
H these rights and. agree to answer questions or make a
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 557
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
statement. But unless and until such warnings and waiver A
are demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against
him."
(Emphasis Added)
B
450. We have not the slightest doubt that the right to
silence and the right to the presence of an attorney granted by
the Miranda decision to an accused as a measure of protection
against self-incrimination have no application under the Indian
system of law. Interestingly, an indication to this effect is to be c
found in the Miranda judgment itself. Having set down the
principle, extracted above, that Court proceeded in the next part
(Part IV) of the judgment to repel the arguments advanced
against its view and to find support for its view in other
jurisdictions. Part IV of the judgment begins as under: D
"A recurrent argument made in these cases is that
society's need for interrogation outweighs the privilege.
This argument is not unfamiliar to this Court ...... "
451. Rejecting the argument, the Court pointed out that very E
firm protections against self-incrimination were available to the
accused in several other jurisdictions, in which connection it
also made a reference to Indian laws. The Court observed:
'The experience in some other countries also suggests that
F
the danger to law enforcement in curbs on interrogation is
overplayed. ... .. ......... In India, confessions
made to police not in the presence of a magistrate have
been excluded by rule of evidence since 1872, at a time
when it operated under British law."
G
452. The Court then noticed Sections 25 and 26 of the
Indian Evidence Act and then referred to the decision of the
Indian Supreme Court in Sarwan Singh v. State of Punjab"" in
88. AIR 1957 SC 637 (644)
H
558 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the following words:
"To avoid any continuing effect of police pressure or
inducement, the Indian Supreme Court has invalidated a
confession made shortly after police brought a suspect before
a magistrate, suggesting: "[l]t would, we think, be reasonable
8
to insist upon giving an accused person at least 24 hours to
decide whether or not he should make a confession."
453. The US Supreme Court, thus, clearly acknowledged
and pointed out that the measures to protect the accused
C against self-incrimination evolved by it under the Miranda rules
were already part of the Indian statutory scheme.
454. Moreover, a bare reference to the provisions of the
CrPC would show that those provisions are designed to afford
complete protection to the accused against self-incrimination.
0
Section 161 (2) of the CrPC disallows incriminating answers to
police interrogations. Section 162(1) makes any statements,
in any form, made to police officers inadmissible excepting
those that may lead to discovery of any fact (vide Section 27
E of the Evidence Act) and that may constitute a dying declaration
(vide Section 32 of the Evidence Act). Coupled with these
provisions of the CrPC is Section 25 of the Evidence Act that
makes any confession by an accused made to a police officer
completely inadmissible. Section 163 of the CrPC prohibits the
use of any inducement, threat or promise by a police officer.
F And then comes Section 164 CrPC, dealing with the recording
of confessions and statements made before a magistrate. Sub-
section (1) of Section 164 provides for recording any
confession or statement in the course of an investigation, or at
any time before the commencement of the inquiry or trial; sub-
G section (2) mandates the magistrate to administer the pre-
confession caution to the accused and also requires him to be
satisfied, as a judicial authority, about the confession being
made voluntarily; sub-section (3) provides one of the most
important protections to the accused by stipulating that in case
H the accused produced before the magistrate declines to make
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 559
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
the confession. the magistrate shall not authorize his detention A
in police custody; sub-section (4) incorporates the post-
confession safeguard and requires the magistrate to make a
memorandum at the foot of the confession regarding the
caution administered to the accused and a certificate to the
effect that the confession as recorded is a full and true account B
of the statement made. Section 164 of the CrPC is to be read
along with Section 26 of the Evidence Act, which provides that
no confession made by any person whilst he is in the custody
of a police officer, unless it be made in the immediate presence
of a magistrate, shall be proved as against such person. c
455. It is thus clear to us that the protection to the accused
against any self-incrimination guaranteed by the Constitution is
very strongly built into the Indian statutory framework and we
see absolutely no reason to draw any help from the Miranda
principles for providing protection against self-incrimination to D
the accused.
456. Here it will be instructive to see how the Miranda
decision has been viewed by this Court; in what ways it has
been referred to in this Court's decisions and where this Court E
has declined to follow the Miranda rules.
457. Significant notice of the Miranda decision was first
takan by a three-Judge bench of this Court in Nandini
Satpathy. The appellant in that case, a former Chief Minister
of Orissa. was summoned to the police station in connection
F
With a case registered against her under Section 5(1) and (2),
Prevention of Corruption Act, 1947, and Sections 161/165,
120-B and 109 of the Penal Code, and was interrogated with
reference to a long string of questions given to her in writing.
On her refusal to answer, a complaint was filed against her G
under Section 179 of the Penal Code and the magistrate took
cognizance of the offence. She challenged the validity of the
proceedings before the High Court. The High Court dismissed
the petition following which the Chief Minister came to this
Court in appeal against the order passed by the High Court. It H
560 SUPREME COURT REPORTS (2012] 8 S.C.R.
A was in that context that this Court made a glowing reference to
the Miranda decision; however, in the end, this Court refrained
from entirely transplanting the Miranda rules into the Indian
criminal process and, with regard to the Indian realities,
"suggested" certain guidelines that may be enumerated as
B under:
"(a) Under Article 22(1 ), the right to consult an advocate
of"his choice shall not be denied to any person who is
arrested. Articles 20(3) and 22(1) may be telescoped by
making it prudent for the police to permit the advocate of
c the accused to be present at the time he is examined.
Over-reaching Article 20(3) and Section 161 (2) will be
obviated by this requirement. But it is not as if the police
must secure the services of a lawyer, for, that will lead to
'police station-lawyer' system with all its attendant vices.
D If however an accused expresses the wish to have his
lawyer by his side at the time of examination, this facility
shall not ti~ denied, because, by denying the facility, the
police will be exposed to the serious reproof that they are
trying to secure in secrecy and by coercing the will an
E involuntary self-incriminatiorf. It is not as if a lawyer's
presence is a panacea for all problems of self-
incrimination, because, he cannot supply answers or
whisper hints or otherwise interfere with the course of
questioning except to intercept where intimidatory tactics
F are tried and to caution his client where incrimination is
attempted and to insist on questions and answers being
noted where objections are not otherwise fully appreciated.
The lawyer cannot harangue the police, but may help his
client and complain on his behalf. The police also need not
G wait for more than a reasonable time for the advocate's
arrival.
(b) Where a lawyer of his choice is not available, after the
examination of the accused, the police officer must take
him to a magistrate, a doctor or other willing and
H
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 561
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
responsible non-partisan official or non-official and allow A
a secluded audience where he may unburden himself
beyond the view of the police and tell whether he has
suffered duress, in which case he should be transferred
to judicial or other custody where the police cannot reach
him. The collocutor communicate the relevant conversation B
to the nearest magistrate."
458. In later decisions, Nandini Satpathy guidelines and
the Miranda rule are referred to, approved and followed in an
ancillary way when this Court moved to protect or expand the C
rights of the accused against investigation by lawless means,
but we are not aware of any decision in which the Court might
have followed the core of the Nandini Satpathy guidelines or
the Miranda rule.
459. In Poolpandi, the appellants before this Court, who D
were called for interrogation in course of investigation under the
provisions of the Customs Act, 1963, and the Foreign
Exchange Regulation Act, 1973, claimed the right of presence
of their lawyer during interrogation, relying strongly on Nandini
Satpathy. The question before the Court was thus directly E
whether a person summoned for interrogation is entitled to the
presence of his lawyer during questioning. But a three-judge
bench of this Court rejected the appeal, tersely observing in
paragraph 4 of the judgment as under:
"Both Mr. Salve and Mr. Lalit strongly relied on the
F
observations in Nandini Satpathy v. P.L. Dani. We are
afraid, in view of two judgments of the Constitution Bench
of this Court in Ramesh Chandra Mehta v. State of WB.
and 11/ias v. Collector of Customs, Madras, the stand of
the appellants cannot be accepted. The learned counsel G
urged that since Nandini Satpathy case was decided
later, the observations therein must be given effect to by
this Court now. There is no force in this argument."
H
562 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 460. More recently in Directorate of Revenue Intelligence,
(to which one of us, Aftab Alam J., is a party) the question
before the Court was, once again, whether a person summoned
for interrogation by the officers of the Directorate of Revenue
Intelligence in a case under the Narcotic Drugs and
B Psychotropic Substances Act, 1985, had the right of the
presence of his lawyer at the time of interrogation. The Court,
after discussing the decision in Nandini Satpathy and relying
upon the decision in Poo/pandi, rejected the claim; but, in light
of the decision in D.K. Basu and with regard to the special facts
C and circumstances of the case, directed that the interrogation
of the respondent may be held within sight of his advocate or
any person duly authorized by him, with the condition that the
advocate or person authorized by the respondent might watch
the proceedings from a distance or from beyond a glass
D partition but he would not be within hearing distance, and the
respondent would not be allowed to have consultations with him
in the course of the interrogation.
461. But, as has been said earlier, Nandini Satpathy and
Miranda may also be found referred quite positively, though in
E a more general way, in several decisions of this Court. In D.K.
Basu, this Court, while dealing with the menace of custodial
violence, including torture and death in the police lock-up,
condemned the use of violence and third-degree methods of
interrogation of the accused, and described custodial death as
F one of the worst crimes against the society. In paragraph 22
of its judgment, the Court observed:
•..... Any form of torture or cruel, inhuman or degrading
treatment would fall within the inhibition of Article 21 of the
Constitution, whether it occurs during investigation,
G
interrogation or otherwise ...... The precious right
guaranteed by Article 21 of the Constitution of India cannot
be denied to convicts, under-trials, detenus and other
prisoners in custody, except according to the procedure
established by law by placing such reasonable restrictions
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 563
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
as are permitted by law." A
462. In that connection, the Court examined international
conventions and declarations on the subject and visited other
jurisdictions, besides relying upon earlier decisions of this
Court, and laid down a set of guidelines to be strictly followed
8
in all cases of arrest or detention as preventive measures.
While dealing with the question of striking a balance between
the fundamental rights of the suspect-accused and the necessity
of a thorough investigation in serious cases that may threaten
the very fabric of society, such as acts of terrorism and C
communal riots etc. this Court, in paragraph 32 of the judgment,
referred to the opening lines of Part IV of the judgment in
Miranda.
"A recurrent argument, made in these cases is that
society's need for interrogation outweighs the privilege. D
This argument is not unfamiliar to this Court. [See e.g.,
Chambers v. Florida 89 , US at pp. 240-41: L Ed at p. 724:
60 S Ct 472 (1940)]. The whole thrust of our foregoing
discussion demonstrates that the Constitution has
prescribed the rights of the individual when confronted E
with the power of Government when it provided in the Fifth
Amendment that an individual cannot be compelled to be
a witness against himself. That right cannot be abridged."
(Emphasis Original)
F
463. Navjot Sandhu is a case under the Prevention of
Terrorism Act, 2002 (in short "POTA"). The law of the POTA is
a major departure from the ordinary mainstream criminal law
of the country. Under Section 32 of the Prevention of Terrorism
Act, 2002, contrary to the provisions of the CrPC and the G
Evidence Act, as noted above in detail, a confession made by
an accused before a police officer, not lower in rank than a
Superintendent of Police, is admissible in evidence though
89. 309 US 227: 84 L Ed 716: 60 S Ct 472 (1940) H
564 SUPREME COURT REPORTS [2012] 8 S.C.R.
A subject, of course, to the safeguards stipulated in sub-sections
(2) to (5) of Section 32 and Section 52 that lay down the
requirements to be complied with at the time of the arrest of a
person. Insisting on a strict compliance with those safeguards,
the Court in Navjot Sandhu pointed out that those safeguards
B and protections provided to the accused were directly relatable
to Articles 21 and 22(1) of the Constitution and incorporated
the guidelines spelled out by this Court in Kartar Singh and D.K.
Basu. In that regard, the Court also referred in paragraph 55
of the judgment to the decision in Nandini Satpathy, and in
c paragraph 63 to the Miranda decision, observing as follows:-
"ln the United States, according to the decisions of the
Supreme Court viz., Miranda v. Arizona90; Escobedo v.
l/linois 91 the prosecution cannot make use of the
statements stemming from custodial interrogation unless
D it demonstrates the use of procedural safeguards to
secure the right against self-incrimination and these
safeguards include a right to counsel during such
interrogation and warnings to the suspecVaccused of his
right to counsel and to remain silent. In Miranda case
E (decided in 1966), it was held that the right to have counsel
present at the interrogation was indispensable to the
protection of the Vth Amendment privilege against self-
i ncri mi nation and to ensure that the right to choose
between silence and speech remains unfettered
F throughout the interrogation process. However, this rule is
subject to the conscious waiver of right after the individual
was warned of his right."
464. As we see Navjot Sandhu, it is difficult to sustain Mr.
G Ramachandran's submission made on that basis. To say that
the safeguards built into Section 32 of the POTA have their
source in Articles 20(3), 21 and 22(1) is one thing, but to say
that the right to be represented by a lawyer and the right
90. 384 US 436: 16 L Ed 2d 694 (1996)
H 91. 378 us 478: 12 L Ed 2d 977 (1964)
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 565
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
against self-incrimination would remain incomplete and A
unsatisfied unless those rights are read out to the accused
and further to contend that the omission to read out those
rights to the accused would result in vitiating the trial and the
conviction of the accused in that trial is something entirely
different . As we shall see presently, the obligation to provide 8
legal aid to the accused as soon as he is brought before the
magistrate is very much part of our criminal Jaw procedure,
but for reasons very different from the Miranda rule, aimed at
protecting the accused against self-incrimination. And to say
that any failure to provide legal aid to the accused at the C
beginning, or before his confession is recorded under Section
164 CrPC, would inevitably render the trial illegal is stretching
the point to unacceptable extremes.
465. What seems to be overlooked in Mr.
Ramachandran's submission is that the law of the POTA is a D
major departure from the common criminal law process in this
country. One can almost call the POTA and a few other Acts of
its ilk as exceptions to the general rule. Now, in the severe
framework of the POTA, certain constitutional safeguards are
built into Section 32, and to some extent in Section 52, of the E
Act. But the mainstream criminal law procedure in India, which
is governed by the CrPC and the Indian Evidence Act, has a
fundamentally different and far more liberal framework, in which
the rights of the individual are protected, in a better and more
effective manner, in different ways. It is, therefore, wrong to F
argue that what is said in context of the POTA should also apply
to the mainstream criminal law procedure.
466. We are also not impressed by Mr. Ramachandran's
submission that providing a lawyer at the stage of trial would
provide only incomplete protection to the accused because, in G
case the· accused had already made a confession under
Section 164 CrPC, the lawyer would be faced with a fait
accompli and would be defending the accused with his hands
tied.
H
566 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 467. The object of the criminal law process is to find out
the truth and not to shield the accused from the consequences
of his wrongdoing. A defense lawyer has to conduct the trial
on the basis of the materials lawfully collected in the course of
investigation. The test to judge the Constitutional and legal
B acceptability of a confession recorded under Section 164 CrPC
is not whether the accused would have made the statement had
he been sufficiently scared by the lawyer regarding the
consequences of the confession. The true test is whether or not
the confession is voluntary. If a doubt is created regarding the
C voluntariness of the confession, notwithstanding the safeguards
stipulated in Section 164 it has to be trashed; but if a confession
is established as voluntary it must be taken into account, not
only constitutionally and legally but also morally.
468. In light of the above discussion, we are in agreement
D with the submissions of Mr. Subramanium as formulated in
paragraphs II and Ill of his summing up. We accept that the right
against self-incrimination under Article 20(3) does not exclude
any voluntary statements made in exercise of free will and
volition. We also accept that the right against self-incrimination
E under Article 20(3) is fully incorporated in the provisions of the
CrPC (Sections 161, 162, 163 and 164) and the Evidence Act,
1872, as manifestations of enforceable due process, and thus
compliance with these statutory provisions is also equal
compliance with the Constitutional guarantees.
F
469. But on the issue of the right of the suspect or the
accused to be represented by a lawyer, we find Mr.
Subramanium's submissions equally unacceptable. Mr.
Subramanium contends that Article 22(1) merely allows an
G arrested person to consult a legal practitioner of his choice and
the right to be defended by a legal practitioner crystallizes only
at the stage of commencement of the trial in terms of Section
304 of the CrPC. We "feel that such a view is quite incorrect
and insupportable for two reasons. First, such a view is based
on an unreasonably restricted construction of the Constitutional
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 567
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
and statutory provisions; and second, it overlooks the socio- A
economic realities of the country.
470. Article 22(1) was part of the Constitution as it came
into force on January 26, 1950. The Criminal Procedure Code,
1973 (Act 2of1974), that substituted the earlier Code of 1898, B
came into force on April 1, 1974. The CrPC, as correctly
explained by Mr. Subramanium in his submissions,
incorporated the Constitutional provisions regarding the
protection of the accused against self-accusation. The CrPC
also had a provision in Section 304 regarding access to a C
lawyer, to which Mr. Subramanium alluded in support of his
submission that the right to be defended by a legal practitioner
would crystallize only on the commencement of the trial.
471. But the Constitution and the body of laws are not
frozen in time. They comprise an organic structure developing D
and growing like a living organism. We cannot put it better than
in the vibrant words of Justice Vivian Bose, who, dealing with
the incipient Constitution in State of West Bengal v. Anwar Ali
Sarkar82 made the following observations:-
E
"I find it impossible to read these portions of the
Constitution without regard to the background out of which
they arose. I cannot blot out their history and omit from
consideration the brooding spirit of our times. They are not
just dull, lifeless words static and hide-bound as in some
F
mummified manuscript, but, living flames intended to give
life to a great nation and order its being, tongues of
dynamic fire, potent to mould the future as well as guide
the present. The Constitution must, in my judgment, be
left elastic enough to meet from time to time the altering
conditions of a changing world with its shifting emphasis G
and differing needs. I feel therefore that in each case
Judges must look straight into the heart of things and
92. AIR 1952 SC 75 H
568 SUPREME COURT REPORTS [2012] 8 S.C.R.
A regard the facts of each case concretely much as a jury
would do; and yet, not quite as a jury, for we are considering
here a matter of law and not just one of fact: Do these 'laws'
which have been called in question offend a still greater
law before which even they must bow?"
B
472. In the more than four decades that have passed
since, true to the exhortation of Justice Bose, the law, in order
to serve the evolving needs of the Indian people, has made
massive progress through Constitutional amendments,
legislative action and, not least, through the pronouncements
C by this Court. Article 39-A came to be inserted in the
Constitution by the Constitution (42nd Amendment Act, 1976)
with effect from 3.1.1977 as part of the 'Directive Principles of
the State Policy'. The Article reads as under:-
D "Article 39-A. Equal justice and free legal aid: The State
shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and
shall, in particular, provide free legal aid, by suitable
legislation or schemes or in any other way, to ensure that
E opportunities for securing justice are not denied to any
citizen by reason of economic or other disabilities."
473. In furtherance to the ideal of Article 39-A, Parliament
enacted the Legal Services Authorities Act, 1987, that came
into force from 9.11.1995. The Statement of Objects and
F Reasons of the Act, insofar as relevant for the present, reads
as under:-
"Article 39A of the Constitution provides that the State shall
secure that the operation of the legal system promotes
G justice on a basis of equal opportunity, and shall, in
particular, provide free legal aid, by suitable legislation or
schemes or in any other way, to ensure that opportunities
for securing justice are not denied to any citizen by
reason of economic or other disabilities.
H (Emphasis Added)
MOHAMMED .AJMAL MOHAMMAD AMIR KASAB @ABU 569
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J]
474. Sections 12 and 13 in Chapter IV of the Act deal with A
entitlement to legal services, and provide for legal services
under the Act to a very large class of people, including members
of Scheduled Castes and Scheduled Tribes, women and
children and persons in receipt of annual income less than
Rupees nine thousand (Rs 9,000/-) if the case is before a court B
other than the Supreme Court, and less than Rupees twelve
thousand (Rs 12,000) if the case is before the Supreme Court.
As regards incom~. an affidavit made by the concerned person
would be regarded as sufficient to make him eligible for
entitlement to legal services under the Act. In the past C
seventeen (17) years since the Act came into force, the
programme of legal aid had assumed the proportions of a
national movement.
475. All this development clearly indicates the direction in
which the law relating to access to lawyers/legal aid has D
developed and continues to develop. It is now rather late in the
day to contend that Article 22(1) is merely an enabling provision
and that the right to be defended by a legal practitioner comes
into force only on the commencement of trial as provided under
Section 304 of the CrPC. E
476. And this leads us to the second ground for not
accepting Mr. Subramanium's submission on this issue. Mr.
Subramanium is quite right and we are one with him in holding
that the provisions of the CrPC and the Evidence Act fully
F
incorporate the Constitutional guarantees, and that the statutory
framework for the criminal process in India affords the fullest
protection to personal liberty and dignity of an individual. We
find no flaws in the provisions in the statutes books, but the devil
lurks in the faithful application and enforcement of those G
provisions. It is common knowledge, of which we take judicial
notice, that there is a great hiatus between what the law
stipulates and the realities on the ground in the enforcement
of the law. The abuses of the provisions of the CrPC are
H
570 SUPREME COURT REPORTS [2012) 8 S.C.R.
A perhaps the most subversive of the right to life and personal
liberty, the most precious right under the Constitution, and the
human rights of an individual. Access to a lawyer is, therefore,
imperative to ensure compliance with statutory provisions, which
are of high standards in themselves and which, if duly complied
B with, will leave no room for any violation of Constitutional
provisions or human rights abuses.
477. In any case, we find that the issue stands settled long
ago and is no longer open to a debate. More than three
decades ago, in Hussainara Khatoon (IV) v. Home Secretary,
C State of Bihar93 , this Court referring to Article 39-A, then newly
added to the Constitution, said that the article emphasised that
free legal aid was an unalienable element of a "reasonable, fair
and just" procedure, for without it a person suffering from
economic or other disabilities would be deprived from securing
D justice. In paragraph 7 of the judgment the Court observed and
directed as under:
"7 ........ The right to free legal services is, therefore, clearly
an essential ingredient of "reasonable, fair and just",
E procedure for a person accused of an offence and it must
be held implicit in the guarantee of Article 21. This is a
constitutional right of every accused person who is unable
to engage a lawyer and secure legal services on account
of reasons such as poverty, indigence or
F
incommunicado situation and the State is under a
mandate to provide a lawyer to an accused person if the
circum3tances of the case and the needs of justice so
require, provided of course the accused person does not
object to the provision of such lawyer. We would,
therefore, direct that on the next remand dates, when the
G
under-trial prisoners, charged with bailable offences, are
produced before the Magistrates, the State Government
should provide them a lawyer at its own cost for the
purpose of making an application for bail, provided that
H 93. (1980) 1 sec 98
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 571
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
no objection is raised to such lawyer on behalf of such A
under-trial prisoners and if any application for bail is made,
the Magistrates should dispose of the same in accordance
with the broad outlines set out by us in our judgment dated
February 12, 1979. The State Government will report to the
High Court of Patna its compliance with this direction within B
a period of six weeks from today."
478. Two years later, in Khatri (II) relating to the infamous
case of blinding of prisoners in Bihar, this Court reiterated that
the right to free legal aid is an essential ingredient of due C
process, which is implicit in the guarantee of Article 21 of the
Constitution. In paragraph 5 of the judgment, the Court said:
"This Court has pointed out in Hussainara Khatoon (IV)
case94 which was decided as far back as March 9, 1979
that the right to free legal services is clearly an essential D
ingredient of reasonable, fair and just procedure for a
person accused of an offence and it must be held implicit
in the guarantee of Article 21 and the State is under a
constitutional mandate to provide a lawyer to an accused
person if the circumstances of the case and the needs of E
justice so require, provided of course the accused person
does not object to the provision of such lawyer."
479. Then, brushing aside the plea of financial constraint
in providing legal aid to an indigent, the Court went on to say:
F
"Moreover, this constitutional obligation to provide free
legal services to an indigent accused does not arise only
when the trial commences but also attaches when the
accused is for the first time produced before the
magistrate. It is elementary that the jeopardy to his G
personal liberty arises as soon as a person is arrested
and produced before a magistrate, for it is at that stage
94. Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC
w. H
572 SUPREME COURT REPORTS [2012) 8 S.C.R.
A that he gets the first opportunity to apply for bail and
obtain his release as also to resist remand to police or
jail custody. That is the stage at which an accused person
needs competent legal advice and representation and no
procedure can be said to be reasonable, fair and just
B which denies legal advice and representation to him at
this stage. We must, therefore, hold that the State is
under a constitutional obligation to provide free legal
services to an indigent accused not only at the stage of
trial but also at the stage when he is first produced before
c the magistrate as also when he is remanded from time
to time."
480. In paragraph 6 of the judgment, this Court further
said:
D "But even this right to free legal services would be illusory
for an indigent accused unless the Magistrate or the
Sessions Judge before whom he is produced informs him
of such right. . . .. . . . . . .. . ..... .
..... The Magistrate or the Sessions Judge before whom
E the accused appears must be held to be under an
obligation to inform the accused that if he is unable to
engage the services of a lawyer on account of poverty or
indigence, he is entitled to obtain free legal services at
the cost of the State....... We would, therefore, direct the
F Magistrates and Sessions Judges in the country to inform
every accused who appears before them and who is not
represented by a lawyer on account of his poverty or
indigence that he is entitled to free legal services at the
cost of the State. Unless he is not willing to take advantage
of the free legal services provided by the State, he must
G
be provided legal representation at the cost of the
State ...... ."
(Emphasis Added)
H 481. The resounding words of the Court in Khatri (II) are
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 573
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
equally, if not more, relevant today than when they were first A
pronounced. In Khatri (II) the Court also alluded to the reasons
for the urgent need of the accused to access a lawyer, these
being the indigence and illiteracy of the vast majority of Indians
accused of crimes.
B
482. As noted in Khatri(//) as far back as in 1981, a
person arrested needs a lawyer at the stage of his first
production before the magistrate, to resist remand to police or
jail custody and to apply for bail. He would need a lawyer when
the chargesheet is submitted and the magistrate applies his C
mind to the chargesheet with a view to determine the future
course of proceedings. He would need a lawyer at the stage
of framing of charges against him and he would, of course,
need a lawyer to defend him in trial.
483. To deal with one terrorist, we cannot take away the D
right given to the indigent and under-privileged people of this
country by this Court thirty one (31) years ago.
484. We, therefore, have no hesitation in holding that the
right to access to legal aid, to consult and to be defended by a E
legal practitioner, arises when a person arrested in connection
with a cognizable offence is first produced before a magistrate.
We, accordingly, hold that it is the duty and obligation of the
magistrate before whom a person accused of committing a
cognizable offence is first produced to make him fully aware
F
that it is his right to consult and be defended by a legal
practitioner and, in case he has no means to engage a lawyer
of his choice, that one would be provided to him from legal aid
at the expense of the State. The right flows from Articles 21 and
22(1) of the Constitution and needs to be strictly enforced. We,
accordingly, direct all the magistrates in the country to faithfully G
discharge the aforesaid duty and obligation and further make
it clear that any failure to fully discharge the duty would amount
to dereliction in duty and would make the concerned
magistrate liable to departmental proceedings.
H
574 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 485. It needs to be clarified here that the right to consult
and be defended by a legal practitioner is not to be construed
as sanctioning or permitting the presence of a lawyer during
police interrogation. According to our system of law, the role
of a lawyer is mainly focused on court proceedings. The
B accused would need a lawyer to resist remand to police or
judicial custody and for granting of bail; to clearly explain to him
the legal consequences in case he intended to make a
confessional statement in terms of Section 164 CrPC; to
represent him when the court examines the chargesheet
c submitted by the police and decides upon the future course of
proceedings and at the stage of the framing of charges; and
beyond that, of course, for the trial. It is thus to be seen that the
right to access to a lawyer in this country is not based on the
Miranda principles, as protection against self-incrimination, for
0 which there are more than adequate safeguards in Indian laws.
The right to access to a lawyer is for very Indian reasons; it flows
from the provisions of the Constitution and the statutes, and is
only intended to ensure that those provisions are faithfully
adhered to in practice.
E 486. At this stage the question arises, what would be the
legal consequence of failure to provide legal aid to an indigent
who is not in a position, on account of indigence or ai:iy other
similar reasons, to engage a lawyer of his own choice?
F 487. Every accused unrepresented by a lawyer has to be
provided a lawyer at the commencement of the trial, engaged
to represent him during the entire course of the trial. Even if the
accused does not ask for a lawyer or he remains silent, it is
the Constitutional duty of the court to provide him with a lawyer
G before commencing the trial. Unless the accused voluntarily
makes an informed decision and tells the court, in clear and
unambiguous words, that he does not want the assistance of
any lawyer and would rather defend himself personally, the
obligation to provide him with a lawyer at the commencement
H of the trial is absolute, and failure to do so would vitiate the trial
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 575
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
and the resultant conviction and sentence, if any, given to the A
accused (see Suk Das v. UT of Arunachal Pradesh 95 ).
488. But the failure to provide a lawyer to the accused at
the pre-trial stage may not have the same consequence of
vitiating the trial. It may have other consequences like making B
the delinquent magistrate liable to disciplinary proceedings, or
giving the accused a right to claim compensation against the
State for failing to provide him legal aid. But it wouid not vitiate
the trial unless it is shown that failure to provide legal assistance
at the pre-trial stage had resulted in some material prejudice C
to the accused in the course of the trial. That would have to be
judged on the facts of each case.
489. Having thus enunciated the legal position, we may
examine the facts of the appellant's case. As noted in the
earlier part of the judgment (under the marginal heading D
"Kuber"), the appellant was arrested by Marde (PW-48) at
DCB-CID, Unit Ill, on November 27, 2008, at 10.45PM. At the
time of his arrest the appellant stated that he was a Pakistani
national and he did not have any friend or relative in India.
Marde, accordingly, made a note in "the Record of Formalities E
to be Followed at the time of Arrest" 96 that intimation of his
arrest could not be given to anyone in India but information
about his relatives was being procured for giving intimation to
them (in Pakistan). He added that information about his arrest
was duly given to the Crime Branch, the Control Room and the F
superior officers. He also noted in the Arrest Panchnama that
the appellant belonged to an economically weaker section, with
an annual income of under Rupees twenty thousand
(Rs.20,000/-) per annum. What is important for the present,
however, is the note in "the Record of Formalities ..... "that the G
appellant refused the offer of legal aid made to him.
95. (1986) 2 sec 401
96. A detailed form prescribed after this Court's decision in D.K. Basu, which
wvery police officer in Maharashtra is required to fill up at the time of making
arrest in compliance with the directions of this Court. H
576 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 490. We were also shown an undated letter written by the
appellant to the Pakistani Consulate/High Commission
("Pakistani Waka!af'), New Delhi. The letter is in broken Urdu
and is written in half-literate handwriting. The appellant handed
over the letter to Marde on December 10. 2008. Marde passed
B the letter to his superiors, and the ACP (Crime), Mumbai,
forwarded it to the Joint Secretary (Foreigners), Ministry of
Home Affairs, Government of India, on December 11, 2008,
with a request to arrange Consular access for the appellant. In
this letter, the appellant asserts his Pakistani identity and
c nationality, and states that after having received armed training
at different places in Pakistan, he and his associates made an
attack on India. In the exchange of firing with the police, Ismail
was killed and he received gun-shot injuries. He requested legal
aid and asked that the Pakistani authorities should make
D arrangements to take the dead body of Ismail to his home. He
signed the letter as "Yours Patriotic" ("Aapka Watan Paras!")
Mohammad Ajmal.
491. Further, on December 26, 2008, on being produced
before the Additional Chief Metropolitan Magistrate, he handed
E a similar letter, written by him in Urdu, to the magistrate. In this
letter, he once again asserted his Pakistani identity and
nationality, and requested a Pakistani lawyer. In this letter, he
clearly said that he did not want any Indian lawyer for his
defence. He also said that he had already written a letter to the
F Pakistani Consulate/High Commission, requesting a lawyer,
but he failed to get any reply from there. He requested the
magistrate to make a request on his behalf to the Pakistani
Consulate/High Commission for providing him legal aid. On that
date, the court remanded him to magisterial custody for the
G purposes of an identification parade, recording in the order
sheet that the appellant had requested a Pakistani lawyer. On
December 29, 2008, the Additional Chief Metropolitan
Magistrate 37th Court, Esplanade, Mumbai, took the rather
unusual step of directly forwarding the appellant's letter to the
H "Hon'ble Ambassador, Pakistan", with ~ covering letter under
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 577
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
his seal and signature. Unfortunately for the appellant, the A
country of his nationality was in a mode of complete denial at
that stage, and there does not seem to be even an
acknowledgement of his letters requesting a Pakistani lawyer.
On February 17, 2009, the appellant was produced before the
Additional Chief Metropolitan Magistrate for recording his B
confession under Section 164 of the CrPC, and we have
already seen in great detail the proceedings of the next four
dates till February 21, 2009. On February 25, 2009, a
chargesheet was submitted in the case, and on March 23,
2009, the appellant was produced before the Sessions Court c
through electronic video linkage for the first time. He then made
a request to be given a lawyer at the expense of the State. On
March 30, 2009, the court appointed Ms. Anjali Waghmare to
represent the appellant from the panel of lawyers maintained
by the court. Moreover, since the appellant was charged with D
offences carrying the death penalty, under legal-aid rules he
was entitled to be defended by a senior lawyer assisted by a
junior. The court, therefore, appointed Mr. Pawar as the junior
counsel to represent the appellant on April 1, 2009. At this
stage, one Kaikhushru Lam, who had been clamouring for
some time to be allowed to represent Kasab, filed a petition E
against the appointment of Ms. Anjali Waghmare, stating that
she was representing a victim of the terrorist attack and a
potential witness in the trial for compensation for the victim, in
a separate civil proceeding. When this fact came to light, the
trial judge revoked the appointment of Ms. Anjali Waghmare F
by a reasoned order passed on April 15, 2009, observing that
there was a possibility of conflict of interests. Then, after careful
consideration and consultations with a number of senior
advocates, the court finally chose Mr. Abbas Kazmi, advocate,
to represent the appellant. The court selected Mr. Kazmi in G
consultation with the President of the Bar, and taking into
account the magnitude of the case and the competence and
experience of Mr. Kazmi. Mr.Kazmi was then provided a
chamber on the first floor of the court building and was given
all the facilities to conduct the case properly and without any H
578 SUPREME COURT REPORTS [2012] 8 S.C.R.
A difficulty (including round-the-clock armed security!).
492. On April 17, 2009, the confession of the appellant
recorded by the Judicial Magistrate was opened before the
court and copies were given to the Special Public Prosecutor
and Mr. Kazmi. On that very day, Mr. Kazmi submitted an
8
application (Exhibit 18) stating that the appellant retracted from
the confession recorded before the magistrate. On the same
day, the prosecution opened its case. It is another matter that,
towards the end of the trial, Mr. Kazmi picked repeated quarrels
with the court. Fram the orders passed by the court in that
C regard, it is clear that Mr. Kazmi was bent upon delaying the
trial proceedings and was raising groundless objections at
every step, trying to make it impossible for the court to proceed
with the trial. As a result, the court was eventually forced to
remove Mr. Kazmi from the trial. Mr. Kazmi challenged the
D court's order removing him from the trial before the High Court,
but the High Court affirmed the order of the trial court. It may
be noted here that even Mr. Ramachandran did not find any fault
with the decision of the court to remove Mr. Kazmi from the court
proceedings. From that stage, the appellant was represented
E by Mr. Pawar, who seems to have handled the case as well as
anyone could have done in face of the evidence against the
appellant.
493. On the basis of the appellant's two letters in which
F he sought the help of the Pakistani Consulate/High Commission
to provide him with a Pakistani lawyer, Mr. Ramachandran
submitted that it is clear that the appellant wanted a lawyer but
he wanted a lawyer who should be Pakistani. He contended that
it was, therefore, the duty of the court either to make
G arrangements for him to be represented by a Pakistani lawyer
or to tell him clearly that his request could not be acceded to,
but that under the Constitution of India he had the right to be
defended by a lawyer and, in case he so wished, he would be
given adequate legal representation. He argued that apart from
H the Constitutional and legal principles, the rules of natural justice
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 579
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
demanded that the appellant be so informed. .A
494. We feel that Mr. Ramachandran is taking the matter
to unacceptable extremes. It is seen above that the appellant
was offered a lawyer at the time of his arrest by the police officer
making the arrest. He declined the offer. He then wrote a letter B
to the Pakistani High Commission asking to be provided with
a lawyer. He made a similar request in a second letter that was
handed over to the Additional Chief Metropolitan Magistrate.
In the second letter, there is an assertion that he did not want
to be represented by an Indian lawyer. It is thus clear that, in C
his mind, the appellant was still at war with India, and he had
no use for a lawyer from the enemy country. Moreover, the
negative assertion that he did not want an Indian lawyer itself
implies that he had received offers of legal counsel: But those
offers were not acceptable to him.
D
495. The appellant's refusal to accept the services of an
Indian lawyer and his demand for a lawyer from his country
cannot be anything but his own independent decision. The
demand for a Pakistani lawyer in those circumstances, and
especially when Pakistan was denying that the appellant was E
even a Pakistani citizen, might have been impractical, even
foolish, but the man certainly did not need any advice from an
Indian court or authority as to his rights under the Indian
Constitution. He was acting quite independently and, in his
mind, he was a "patriotic" Pakistani at war with this country. F
496. On March 23, 2009, the appellant finally asked for a
lawyer, apparently convinced by then that no help would come
from Pakistan or anywhere else. He was then immediately
provided with a set of two lawyers.
G
497. In the aforesaid facts we are firmly of the view that
there is no question of any violation of any of the rights of the
appellant under the Indian Constitution. He was offered the
services of a lawyer at the time of his arrest and at all relevant
stages in the proceedings. We are also clear in our view that H
580 SUPREME COURT REPORTS (2012] 8 S.C.R.
A the absence of a lawyer at the pre-trial stage was not only as
per the wishes of the appellant himself, but that this absence
also did not cause him any prejudice in the trial.
Too little time allowed to the lawyer for preparation:
B 498. Mr. Ramachandran submitted that after Mr. Kazmi
was appointed by the court to represent the appellant, he filed
an application on April 21, 2009, requesting for grant of four
weeks' time to prepare a reply to the submissions made by the
Special PP under Section 226 CrPC. His application was only
C partly allowed and he was given only eight days' time, till May
2, 2009, to prepare a reply to the address of the Special PP.
On that date, Mr. Kazmi submitted an application raising the
issue of the juvenility of the appellant, which was rejected by
the court after it held an enquiry into the matter. Mr.
D Ramachandran submitted that the time of eight days given by
the trial court to the court-appointed lawyer was unreasonably
short, considering that Mr. Kazmi had made a reasonable
request for four weeks' time. The learned Counsel submitted
that justice is not only to be done but also to be seen to be
E done, and the short time granted to the defence counsel fell foul
of this principle and thus affected fair trial. He pointed out that
while appointing Mr. Kazmi the court itself recognized that he
was a lawyer of some standard and would be required to adjust
his other commitments. Mr. Ramachandran, therefore,
F submitted that the trial procedure was also vitiated and that it
cannot be said to be just, fair and reasonable because of the
denial of sufficient time to the defence lawyer to prepare his
case.
499. In support of the submission, Mr. Ramachandran
G relied upon an unreported decision of this Court in Owais Alam
v. State of U.P. 97 , in which this Court observed that an Amicus
may feel hesitation in asking for time but the court itself must
allow adequate time to him for preparing the case. He also
H 97. Criminal Appeal No. 284 of 1968. decided on December 17. 1968.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 581
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
relied upon the decision of this Court in Bashira v. State of A
U.P. 98 . In that case, the court had proceeded with the trial on
the same day on which it appointed the Amicus to represent
the accused. This Court held that the defence was not given
sufficient time and, accordingly, set aside the judgments of the
courts below and remanded the case for re-trial. Mr. B
Ramachandran relied upon yet another decision of this Court
in Ranchod Mathur Wasawa v. State of Gujarat.99 . In this case,
though this Court held that sufficient time was given to the
counsel representing the accused, it observed that the courts
should adopt a sensitive approach to see that the accused felt c
confident that the counsel chosen for him by the court has had
adequate time and material to defend him properly.
500. Mr. Kazmi was appointed to represent the appellant
on April 16, 2009, and he made an application for time on April
21, 2009. The court allowed him eight (8) days' time, which D
cannot be said to be unreasonable. It is true that during those
eight (8) days some very brief hearings were held on 2-3 days
on the issue of the juvenility of the appellant. But that does not
mean that the counsel for the appellant was not given sufficient
time to prepare for the case. E
501. Mr. Subramanium gave us a chart showing not only
the day-to-day developments in the trial but also giving details
of the hours of the court proceedings on each day, and from
this chart we are satisfied that Mr. Kazmi was allowed ample F
time for preparation.
502. It would be pertinent to note here that Mr. Kazmi
himself never complained about not being given sufficient time.
We may further note that, from the record of proceedings of the
trial court, Mr. Kazmi does not appear to be the non- G
complaining type, one who would suffer silently or take things
lying down. In the later stages of the trial, Mr. Kazmi raised all
98. (1969) 1SCR 32
99. (1974 3 sec 581 (para 1) H
582 SUPREME COURT REPORTS [2012] 8 S.C.R.
A kinds of objections and left no opportunity to noisily protest
against the procedural decisions of the trial court, yet he never
complained that he was given insufficient time for preparation.
503. We further find that, in the course of the trial, when
Mr. Kazmi requested for adjournment for cross-examination of
8
some important witnesses, the court accommodated him on
most occasions. We are, therefore, unable to agree with Mr.
Ramachandran that the defence was not allowed sufficient time
for preparation of the case and that denial of sufficient time
vitiated the trial.
c
II. The charges not established
504. Mr. Ramachandran feebly submitted that the evidence
adduced by the prosecution did not fully establish all the
0 charges against the appellant. But finding us not inclined to
even listen to this he moved on to his other submissions trying
to chip away at the prosecution case in different ways.
Ill. Confession Not Voluntary and Liable to be Eschewed
from Consideration
E
505. Mr. Raju Ramachandran submitted that the confession
by the appellant was not voluntary but that it was a tutored
statement to suit the prosecution's case. The very language,
tone and tenor of the confession showed that it was not
F voluntary in nature. There were many indicators in the
confession itself showing that it was made at the instance of
the investigating agency. Mr. Ramachandran submitted that the
confession was inordinately long and ii was full of unnecessary
details that were completely out of place, as those had no
G connection or relevance to the offences in regard to which the
confession was being made. The learned Counsel pointed out
that the confession started by giving the address of the village
where the appellant was born and where he spent his childhood.
The appellant then gave the names of his parents and the mobile
H phone number of his father; the names of his younger siblings
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 583
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
who lived with his parents and those of his elder brother and A
sister who were married and lived at different places, along with
their addresses. After the names of the immediate family, he
went on to give the names and addresses of his uncles and
aunts and cousins, both on the paternal and maternal sides.
Those were people whom the appellant had left long before B
joining the Lashkar-e-Toiba and taking on the mantel of a
Jihadi. Mr. Ramachandran submitted that there was no reason
to mention all of them in a confession regarding the terrorist
attack on Mumbai. He further pointed out that the appellant
seems to exhibit a phenomenal memory in the confessional c
statement, naming a large number of persons with their aliases
and their home towns, with street names as well as the names
given to them by the Jihadi group, along with the Hindu names
assigned to them for the purpose of the attack on Mumbai. In
regard to his visits to the different offices of the Lashkar-e-
0
Toiba at different places, the appellant would mention not only
the mode of transport but also the time taken in travelling from
one place to another. He would give the name of the person
whom he met at the gate of the office and then of the person
whom he met inside the office. He would say what was written
on the slips of paper given by one office while sending him to E
the other office or training camp. According to Mr.
Ramachandran, all those details were quite unnecessary in a
confession and a person making a confession with regard to
the Mumbai attack would normally not go into all those
particulars on his own unless prompted by some external F
agency.
506. He further submitted that the confession as recorded
by the magistrate was too tightly organized, well-structured and
properly sequenced to be the true and honest narrative of the G
appellant. who was merely a semi-literate rustic. The confession
started with the childhood days of the appellant at his village
Faridkot. tehsil Dipalpur, district Okara, Punjab Province,
Pakistan, and ended with his arrest at Vinoli Chowpaty in
Mumbai, and all the intervening circumstances were detailed H
584 SUPREME COURT REPORTS [2012] 8 S.C.R.
A one after the other in a highly structured and properly
sequenced manner. He submitted that a person of the
appellant's education, when making an oral confessional
statement, was bound to slightly ramble and many parts in the
narrative would be out of sequence, but that was not so in the
B appellant's confessional statement as produced before the
court.
507. Mr. Ramachandran next pointed out that there were
certain words occurring in the confessional statement which
could not possibly have been used by the appellant and which
C show that the confessional statement was not in his own words.
For instance, he referred to the record of proceedings dated
February 18, 2009, before the learned magistrate, Mrs. Sawant-
Wagule (PW-218), who recorded his confessional statement.
The magistrate· asked (vide question number 14) him the
D offence about which he wanted to make a confessional
statement. In reply, the appellant is shown to have said that he
wanted to make the confessional statement in connection with
the Fidayeen attack on Bombay by him along with his
associates on November 26, 2008, as well as the "Sahzish"
E behind the attack. Mr. Ramachandran said that "Sahzish" is an
Urdu word which would be roughly translated into English as
"conspiracy" but that it has negative connotations. To the
appellant, the preparation and the training for launching the
attack on India were a patriotic duty and not "Sahzish". He also
F referred to the passage in the confession about the training
camp at Muzzaffarabad. In the confessional statement the
appellant is shown to have described Muzaffarabad as being
situated in "POK". Mr. Ramachandran submitted that for the
appellant, unlike for an Indian, this region was not "POK"
G (Pakistan Occupied Kashmir) but rather it was "Azad Kashmir",
and contended that the appellant could not have used the words
"Sahzish" or "POK" and several other similar words that occur
in his confessional statement.
508. Mr. Ramachandran further submitted that operations
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 585
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
of the kind in which the appellant was involved work strictly on A
a "need to know basis", such that individual operatives are given
information limited to what is essential for execution of the role
assigned to them. This is for their own safety and for the safety
of the larger group, as also for the success of the conspiracy.
But in this case it would appear that, in the course of his training, B
the appellant was being freely introduced to all and sundry in
the organization and was also told about their respective
positions in the hierarchy of the organization and their special
skills. As an instance, Mr. Ramachandran referred to the
passage in the confessional statement where the appellant is c
taken to the media room of the organization and Kafa tells him
about Zarar Shah being the head of the media wing of the
organization.
509. Mr. Ramachandran pointed out that the appellant
describes a number of events in the course of his training in D
Pakistan in the minutest detail. He not only recalls what
someone said at that time but actually. reproduces long
statements made by someone else in direct speech, which is
recorded by the magistrate within inverted commas. The
learned Counsel submitted that this feature of the confessional E
statement was itself sufficient to discredit it.
510. He further pointed out that, at several places, in
course of some discussion in a group, the appellant asks a
question to elicit an answer that would fit exactly into the F
prosecution's case. Mr. Ramachandran submitted that, if
viewed objectively, those parts of the coflfession would appear
quite out of place and contrived. He also referrecUo some other
passages in the confessional statement, like the one where the
members of the terrorist squad are told that the SIM cards for G
their mobile phones were procured from India by fooling some
people there, and characterised these passages as quite
contrived and out of place.
511. Mr. Ramachandran further submitted that the
introduction of Fahim and Sabauddin (accused 2 and 3) with H
586 SUPREME COURT REPORTS [2012] 8 S.C.R.
A the maps allegedly prepared by them, in the confessional
statement, was clearly fabricated. He said that the other two
accused were mentioned in the confession at three places and
at each place the reference appeared to be more incongruous
than at the other.
B
512. Mr. Ramachandran submitted that, beginning from
the Kuber right up to his being taken into custody at Vinoli
Chowpaty, the appellant seems to be narrating events so as
to confirm all the findings of the investigation. Mr.
Ramachandran referred to the passage where Abu Ismail and
C the appellant proceed in the Skoda car, having snatched the
vehicle from its owner at gun-point. At this point, the appellant
asks Abu Ismail where they are going and Abu Ismail vaguely
replies that they are going to Malabar Hill and, on being asked
again, tells the appellant that he would tell him the exact
D destination only after reaching Malabar Hill. And then, as they
pass through the road by the sea, the appellant recalls that this
was the same road as was shown in the maps prepared by
the other two accused, as going towards Malabar Hill. Mr.
Ramachandran said that if Malabar Hill was actually the area
E they were headed for, it is impossible to believe that he would
not know their exact target there, or that Abu Ismail would hold
it back from him till they reached there. The learned Counsel
contended that the whole passage was clearly an untrue
insertion for filling up the blanks in the prosecution case.
F
513. Mr. Ramachandran also referred to two other
passages in the confession, one relating to the terrorists'
encounter with two persons as they came ashore at Badhwar
Park, and the other regarding the appellant's planting of an ROX
G bomb in the taxi by which the appellant and Abu Ismail came
to CST. Mr. Ramachandran submitted that the first passage
was intended to prop up the evidence of Bharat Dattatrya
Tamore (PW-28), who was just a chance witness and whose
credibility was otherwise wholly unsupported; and the other
passage was to foist the killings in the taxi blast at Vile Parle
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 587
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
on the appellant, for which also there was otherwise no A
evidence.
514. Mr. Ramachandran further submitted that the appellant
had wanted to make a confession as soon as he was
apprehended (see his answer to question no. 9 by the
magistrate in the record of proceedings dated February 18, 8
2009, before Mrs. Sawant-Wagu/e, PW-218). Even Ramesh
Padmanabh Mahale, the Chief Investigating Officer (PW-607),
said in his deposition in court that he realised in the first week
of December 2008 that the appellant was willing to give a
confession before a magistrate (vide Paragraph 25 of his C
deposition before the court). And yet, he was brought before
the magistrate for making the confession as late as February
17, 2009. That the appellant was produced before the
magistrate only after the investigation was complete is evident
from the fact that the recording of the confession was completed D
on February 21, 2009, and the chargesheet was filed on
February 25, 2009. Mr. Ramachandran submitted that after the
investigation was over, the police wanted the appellant to
confirm all the findings made in course of the investigation and
that the appellant was produced before the magistrate with that E
objective.
515. Mr. Ramachandran submitted that for the reasons
pointed out by him, this Court should keep the appellant's
confessional statement completely out of consideration. And if F
the confessional statement is put aside then his conviction, at
least for the murder committed on the Kuber and the killings in
the Vile Parle taxi blast, cannot be sustained.
516. We have read the appellant's confession a number
of times in light of its denunciation by Mr. Ramachandran as G
not being a voluntary statement. But we find it impossible to hold
that the confession is not voluntary and is liable to be thrown
out for that reason. Indeed, some of the criticisms by Mr.
Ramachandran appear, at first sight, quite convincing, but a little
H
588 SUPREME COURT REPORTS [2012] 8 S.C.R.
A reflection would show that there is not much force in any of
those criticisms. Before proceeding further, however, we may
state that his censure regarding the mentions of the other two
accused in the confessional statement is quite justified, and we
too find the references to accused 2 and 3 at three (3) places
B in the confessional statement highly unsatisfactory. We are also
of the view that the reference to their destination being Malabar
Hills when Abu Ismail and the appellant were caught at Vinoli
Chowpaty is equally vague, and that also is perhaps mentioned
to establish a connection with the alleged maps prepared by
C accused 2 and 3. But so far as the rest of the very detailed
confession is concerned, there is absolutely no reason to doubt
that it was made voluntarily and without any influence or duress
from any external agency.
517. Taking Mr. Ramachandran's criticisms one by one,
D the detailed references by the appellant to his parents and a
larger number of his relatives, their addresses and the mobile
phone numbers of some of them, and his references to the
different places in Pakistan, appears to us to be directed
against the Pakistani authorities. It is the appellant's assertion,
E made consciously or subconsciously, of his Pakistani identity
and nationality. It is noted above that, shortly after his arrest,
he had sent two letters (one undated, handed over to Marde;
the other dated December 26, 2008, and handed over to the
Additional Chief Metropolitan Magistrate; both addressed to the
F Pakistani High Commission asking for a Pakistani lawyer).
Those two letters were not even acknowledged and, for all
intents and purposes, he was disowned by the country to which
he belongs. Thus, in the statement that he made before the
magistrate on February 20, 2009, the appellant was making it
G clear that he was a Pakistani by birth and by citizenship, and
was making assertions that no one could deny.
518. Proceeding to the structure of the statement the
sequence of events narrated therein and the use of some words
that prima facie seem unnatural in his mouth. It needs to be kept
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 589
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
in mind that the appellant was making the statement after being A
in police custody for several months. The police, in the course
of countless sessions of interrogations, would have turned him
inside out, and he would have earlier made the very same
statements in the same sequence before the police many a
times. Under relentless police interrogations, he would have B
recalled the smallest details of his past life, specially relating
to the preparation and training for the attack on Mumbai. (The
statements made before the police were not, however,
admissible in evidence as being barred by the various
provisions of the CrPC and the Evidence Act, as discussed in c
detail above.) But when the appellant went to the magistrate to
make his confession, everything would be completely fresh in
his mind. He would also have unconsciously picked up those
words pointed out by Mr. Ramachandran from his interrogators,
and these would have become part of his own vocabulary. We, D
therefore, find nothing surprising in his uttering words like
"Sahzish" or "POK".
519.As to his knowing the names of many people in
Lashkar-e-Toiba, their respective positions in the hierarchy and
their roles in the organization, again there is nothing unusual E
about it. It is to be noted that the appellant was not a mercenary
hired for the operation. He was a highly committed and devoted
member of the organization and, therefore, there is nothing
strange or wrong in his coming to know many people in the
organization during the course of his training. Further, it is to F
be kept in mind that his being caught alive was not part of the
plan of the handlers. According to the plan, he, like the other
nine terrorists in the team, was supposed to die in the course
of the attack, and with his death everything. would have
remained unknown 100 • It was only thanks to the fact of his being G
caught alive (which, as the phone transcripts indicate, made his
handlers quite anxious) that the Indian authorities were able to
100. We may recall here the injuction by the collaborators to the terrorists
against being caught alive as appearing in the transcripts of their phone
~Is. H
590 SUPREME COURT REPORTS [2012] 8 S.C.R.
A learn the names of the other people in the organization, their
specific roles and their positions in the organization. As to the
recording of certain statements within quotes by the learned
magistrate, that is only a manner of how the appellant spoke.
The appellant would say a long sentence and then add that this
B was what so-and-so said. The magistrate would then record the
statement within inverted commas even though the sentences
would be made by the appellant himself, paraphrasing the
words of others. Further, to say that the confessional statement
was intended to confirm the findings of the police investigation
c is actually to blame the police for an excellent investigation. If
the confessional statement confirms the findings of the
investigation that should go to the credit of the investigation,
and it cannot be said that the confessional statement was
recorded to confirm the police investigation.
D 520. Finally, the production of the accused before the
magistrate on February 17, 2009, even though he had
expressed his willingness to make the confessional statement
in early December, 2008, is equally legitimate and
understandable. The police could not afford to lose custody of
E the appellant at that stage, as it was essential in connection
with their investigation, which was still incomplete to a very
large extent at that time. Once the appellant was produced for
recording of the confession under Section 164 of the CrPC, the
law ordained the magistrate to send him to judicial custody and
F not back on police remand. In those circumstances, the police
was fully justified in producing the appellant for confession only
after completing its own investigation, when it no longer needed
the appellant in its custody.
G 521. Leaving aside Mr. Ramachandran's criticisms, the
proof of the voluntariness and the truthfulness of the
confessional statement comes directly from the appellant's own
statements. It is noted in the earlier part of the judgment that,
on February 18, 2009, when the appellant was brought before
H the magistrate, she asked him when he first felt like making a
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 591
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
confession, to which he had replied that the thought of making A
the confession came to him when he was arrested by the
police; he then added that he had absolutely no regret for
whatever he had done. At another stage in the proceedings,
the magistrate once again asked why he wished to make the
confessional statement, to which he replied that he wanted to B
set an example for others to follow and to become Fidayeen
like him. It is thus clear that he was not making a confessional
statement from any position of weakness or resignation, or out
of remorse. He was a hero in his own eyes, and in those
circumstances it is not possible to hold that the confession was C
not vpluntary. It may further be noted that, though Mr.
Ramachandran questioned the voluntariness of the confession,
he did not say that the statements made therein were untrue in
any manner.
522. It needs to be noted here that, in the course of the D
trial, after fifty-eight (58) prosecution witnesses had been
examined and the next witness, Police Sub-Inspector Chavan
was about to enter the witness box on July 20, 2009, the
appellant in the dock expressed a desire to have a word with
his Counsel. After a brief consultation that lasted for about half E
a minute, Mr. Kazmi informed the court that the appellant wanted
to say something to the court directly. On being asked to speak
by the court, the appellant said that he was accepting his guilt.
The Special Public Prosecutor objected to entertaining any plea
of guilty at that stage, on the grounds that the stage of Section F
229 CrPC was already over. The court, however, rightly
overruling the objection, allowed the appellant to make a
statement, which was recorded after giving him due caution.
523. This is once again a long statement but it does not
have the organized structure that Mr. Ramachandran pointed G
out in respect of the confessional statement recorded by the
magistrate. In his statement before the court the appellant began
the story from CST station, where both he and Abu Ismail fired
from AK-47 rifles and Abu Ismail threw hand grenades at a
H
592 SUPREME COURT REPORTS (2012] 8 S.C.R.
A crowd of passengers. Starting from CST he went up to Vinoli
Chowpaty, where he and Abu Ismail were finally caught. From
there, he went back to the point when they had started their sea
journey from Karachi for Mumbai, recounting their journey first
on the small boat, then on the larger vessels Al-Hussaini and
B Kuber, until he came to the landing at Badhwar Park on the
inflatable rubber boat. He then went back again to the various
kinds of trainings that he had received at different places in
Pakistan. However, what is of importance is that, though
structurally and sequentially the statement made in the court is
C completely ~ifferent from the confessional statement made
before the magistrate, it has broadly the same contents. It is
true that in the confessional statement he presents himself as
the central figure in almost all the episodes while in the
statement before the court he appears to be perceptibly
retreating to the background. The lead role in and the overt acts
D are attributed to others rather than to himself. In all the offences
that he committed in Mumbai along with Abu Ismail, it is now
the latter who is in the lead and he himself is simply following
behind him. The killing of Amarchand Solanki on the boat Kuber
that he owned up to almost with pride before the magistrate is
E now assigned to Abu Soheb with Kasab not even present in
the engine room. Significantly, however, as regards his joining
of Lashkar-e-Toiba, the formation of the conspiracy, the
preparation and training for the attack on Mumbai, as well as
the identities otthe men in the organisation, there is hardly any
F omission in the appellant's statement made in the court.
524. Further, in the statement to the court, though there is
mention of the hand-prepared maps, there is no mention of their
source. There is no reference to Fahim and Sabauddin
G (accused nos. 2 and 3) as the maker and the deliverer
(respectively) of those maps.
525. In the appellant's statement before the court there is
no reference at all to his family but the reason for this is not far
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 593
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
fo seek. In paragraph 40 of the statement recorded by the court A
the appellant said as follows:
"I wanted to confess the offence. Since Pakistan had been
disowning, I was not confessing. I have now learnt that
Pakistan has accepted that I am Pakistani National and
8
that they are ready to prosecute the offenders. Therefore,
I am voluntarily confessing to the charges framed against
me. I have made the statement voluntarily without being
influenced by any extraneous source or reason."
526. His Pakistani identity and nationality having been C
acknowledged 101 there was no need for the appellant to remind
the Pakistani establishment of his nationality by giving details
of his family and their addresses.
527. The court, of course, did not accept the statement that D
was sought to be made as the plea of guilty because it was a
very diluted and partial admission of only some of the charges.
It, accordingly, proceeded with the trial.
528. While dealing with the statements made by the
appellant, it may also be noted that, finally, in the statement E
recorded under Section 313 of the CrPC, he denied the entire
prosecution case and also retracted his two previous
statements. It is evident that by the time the statement under
Section 313 was recorded towards the end of December 2009,
the Jihadi sheen had worn off and the desire to live was again F
exerting its pull on the appellant.
101. On an enquiry made by the court as to how the appellant, being under
judicial remand, came to learn that Pakistan had acknowledged him to be G
his national, it came to light that the appellant learnt abount the fact from
guards on duty.
Actually, on February 12, 2009, the Interior Minister of Pakistan
acknowledged that the appellant is a citizen of Pakistan in a press
conference. But the appellant came to know about it much later and used
it as an excuse to make a statement before the Court.
H
594 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 529. In light of the discussions made above, we are unable
to accept Mr. Ramachandran's submission to eschew the
appellant's confessional statement made before the magistrate
completely from consideration. We are clearly of the view that
the confessional statement recorded by the magistrate is
B voluntary and truthful, except insofar as it relates to the other
two accused, namely, Fahim and Sabauddin.
IV. Conspiracy
530. Mr. Ramachandran submitted that the charge of
C conspiracy cannot be said to have been fully established
against the appellant. He pointed out that the appellant was
charged with a larger conspiracy and he was alleged to have:-
(1) Attempted to destabilize the Government of India
by engineering violence in different parts in India;
D
(2) Attempted to create instability in India by the
aforesaid subversive activities;
(3) Terrorized the people in different parts of India by
E indulging in wanton killings and destruction of
properties through bomb attacks and use of fire-
arms and lethal weapons;
(4) Conspired to weaken India's economic might;
F (5) Conspired to kill foreign nationals with a view to
cause serious damage to tourism business of India;
(6) Conspired to adversely affect harmony between
various communities and religions in India.
G 531. The learned Counsel submitted that if the appellant's
confession is excluded from consideration there is not enough
evidence brought by the prosecution to prove the aforesaid
allegations beyond all reasonable doubts. He further submitted
that the transcripts of the telephonic conversation which have
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 595
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J ]
been pressed by the prosecution to prove the charges relating A
to conspiracy cannot be used agains_t the appellant.
532. We find no force in the submission. Earlier it is found
that the confession by the appellant was quite voluntary and
there was no violation of any Constitutional or legal right of the
8
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. Moreover, in the earlier
pages of this judgment we had examined the evidence of
conspiracy in considerable detail, which may be broadly
classified under three heads: (i) the confessional statement by C
the appellant; (ii) the objective findings in the vessel Kuber, the
inflatable rubber dinghy, the different places of attack by the
other groups of terrorists and the locations of bomb explosion
in the two taxis; and (iii) the transcripts of the phone
conversations between the terrorists and their collaborators and D
handlers from across the border. In our view, evidence under
any of these three heads is sufficient to bring home the charges
relating to conspiracy against the appellant.
533. At this stage, however, we must address Mr. E
Ramachandran's point regarding the admissibility of the
transcripts in evidence against the appellant. Mr.
Ramachandran submitted that the transcripts begin from 01.04
AM on November 27, 2008, whereas the appellant was taken
into custody at 00:30 hours on that date. In other words, the F
transcripts begin after the appellant was in police custody. He
contended that with the arrest of the appellant his link with the
other alleged conspirators was snapped, and it could no longer
be said that he continued to be a part of the conspiracy. In that
situation, the conversation among the alleged co-conspirators G
cannot be used against the appellant. In support of the
submission, he placed reliance on a three-Judge Bench of this
Court in State v. Na/ini 102 • We find no force or substance in the
submission, and the reliance placed on the decision in Nalini
102. (1999) 5 sec 253 (para 111) H
596 SUPREME COURT REPORTS [2012] 8 S.C.R.
A is quite misconceived. In Na/ini, the Court was examining the
question whether a confession made by an accused and
recorded under Section 32 of TADA, though a substantive
evidence against the maker thereof, could be used with the
same force against a co-accused being tried in the same case.
B The Court considered the question first in light of the
amendment of TADA by Act 43 of 1993, and came to hold and
find that while a confession is substantive evidence against its
maker, it cannot be used as substantive evidence against
another person, even if the latter is a co-accused, and can only
c be used as a piece of corroborative material to support other
substantive evidence. The State then fell back on Section 10
of the Evidence Act, arguing that the width of the provision is
so large as to render any statement made by a conspirator as
substantive evidence if it satisfies the other conditions of the
D Section. Rejecting the State's submission, the Court pointed
out that a confession can normally be made when an accused
is under arrest and his contact with the other conspirators has
snapped, and it was in that context that the Court held and
observed in paragraph 111 of the judgment as under:-
E "Whether a particular accused had ceased to be a
conspirator or not, at any point of time, is a matter which
can be decided on. the facts of that particular case.
Normally a conspirator's connection with the conspiracy
would get snapped after he is nabbed by the police and
F kept in their custody because he would thereby cease to
be the agent of the other conspirators. Of course we are
not unmindful of rare cases in which a conspirator would
continue to confabulate with the other conspirators and
persist with the conspiracy even after his arrest. That is
G precisely the reason why we said that it may not be
possible to lay down a proposition of law that one
conspirator's connection with the conspiracy would
necessarily be cut off with his arrest."
534. In the case in hand the situation is entirely different.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 597
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
The phase of planning the attack and training for it, which form A
the core of the conspiracy, took place in Pakistan, and the
terrorists, including the appellant, came to Mumbai in execution
of the main objects of the conspiracy. The appellant was
apprehended while he was on a killing spree in execution of
the objects of the conspiracy and the transcripts of the phone B
conversation of the other terrorists, associates of the appellant
and their foreign collaborators, relate to a time when the
speakers were not only free but were actively involved in trying
to fulfil the objects of the conspiracy. The transcripts are by no
means any confessional statements made under arrest and they C
are fully covered by the provisions of Section 10 of the Indian
Evidence Act. There is no reason not to take them into
consideration in support of the charge of conspiracy against.
the appellant.
V. Waging War Against the Government of India D
534. The appellant has been convicted on the charge of
waging war against the Government of India and is awarded
the death penalty under Section 121 of the Penal Code. In
addition, he is separately convicted, under Section 121A, for E
conspiracy to commit offences punishable by Section 121 of
the Code and Section 122 for collecting arms with intention of
waging war against the Government of India, and given life
sentences under these two Sections. Mr. Ramachandran stated
that the conviction under Section 121A pertains to the incidents
F
at venues where the appellant was not present, and in that
regard he has already made his submissions while dealing with
the question of conspiracy. In regard to the conviction under
Section 121, therefore, he would confine his submissions to the
offences directly attributable to the appellant.
G
535. Mr. Ramachandran was anxious to somehow rescue
the appellant from the grave charge of waging war against the
Government of India. His anxiety in regard to this particular
charge stems from the fact that the conviction for the offence
H
598 SUPREME COURT REPORTS [2012] 8 S.C.R.
A of "waging war" has been viewed by the High Court as the most
aggravating factor for awarding the death sentence to the
appellant. Mr. Ramachandran evidently hoped that if he
succeeded in getting the appellant acquitted of the charge of
"waging war" he would be in a better position to plead before
8 the Court for mitigation of the punishment and commutation of
his sentence to life imprisonment.
536. Mr. Ramachandran argued that killing of people, even
though in large numbers, within the precincts of CST, or the
other offences committed by the appellant, earlier described
C under the heads "Cama in", "Cama out", "Skoda robbery" and
"Vinoli Chowpaty", by no means amount to "waging war" within
the meaning of Section 121 of the Penal Code. To constitute
the offence of "waging war", there must be a challenge to the
sovereign authority of the Government of India, which is
D completely absent in the present case. The learned Counsel
submitted that the acts said to have been committed by the
appellant may constitute a terrorist act within the meaning of
Section 15 of the Unlawful Activities (Prevention) Act, 1967, but
not "waging war". He further submitted that if the views of the
E trial court and the High Court were to be upheld, it would amount
to equating every terrorist act with waging war.
537. Mr. Ramachandran submitted that even assuming that
the words "Government of India" in Section 121 of the Penal
F Code are to be read as synonymous with the Indian State, that
would not make the attack on CST Station "waging war" within
the meaning of that Section. The attack on CST was not an
attack directly targeting any important symbol of the State or
any vital establishment of the State or any important
functionaries of the State. The intent to weaken or terrorize the
G
State may render such an act a 'terrorist act' but it would still
not satisfy the ingredients of Section 121 of the Penal Code.
The learned Counsel went on to contend that, in any event, after
the enactment of the very comprehensive provisions in Chapter
IV of the Unlawful Activities (Prevention) Act, 1967, the
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 599
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
provisions of Section 121 of the Penal Code would cease to A
apply to terrorist attack on the Indian State on principles
analogous to those governing the implied repeal of statute.
538. Mr. Ramachandran further submitted that, similarly,
the mindless killing of persons in a public place would not
8
constitute the offence of "waging war" against the Indian State.
Any argument that an attack on a place which is no more than
the hub of a public transportation system amounts to an attack
on the State is, according to Mr. Ramachandran, quite
fallacious in the context of a criminal statute. The learned
Counsel submitted that to say that an attack on a very important C
and busy railway station or an attack on India's financial capital
or economic might would be an attack on the State would
amount to giving a greatly extended, expansive and liberal
meaning to a criminal statute, which is not permissible.
D
539. Mr. Ramachandran further submitted that on the
question of "waging war" the present case was not comparable
to the cases of Navjot Sandhu and Mohd. Arif v. State of
Oefht103 • In Navjot Sandhu and Mohd. Arif, the targets of attack·
were the Parliament building and the Red Fort, which this Court E
held were clearly symbols of the Indian State and its
sovereignty. According to Mr. Ramachandran, the same could
not be said of CST, which is only a public building.
540. The offences concerning "waging war" are in Chapter
VI of the Penal Code under the heading "of offences against F
the State". Section 121 uses the phrase 'Government of India'
and it provides as follows:-
"121. Waging, or attempting to wage war, or abetting
waging of war, against the Government of India. - G
Whoever, wages war against the Government of India, or
attempts to wage such war, or abets the waging of such
war, shall be punished with death, or imprisonment for life
and shall also be liable to fine."
103. 2011 (8) SCALE 328 H
600 SUPREME COURT REPORTS (2012] 8 S.C.R.
A 541. Section 121A makes a conspiracy to commit
offences punishable by Section 121 per se an offence
punishable with imprisonment for life or for a period that may
extend to ten (10) years. The explanation to the Section makes
it clear that the offence is complete even without any act or
8 illegal omission occurring in pursuance of the conspiracy. This
Section uses the expression 'the Central Government or any
State Government'. The Section reads as under:-
"121A. Conspiracy to commit offences punishable by
Section 121. - Whoever within or without India conspires
c to commit any of the offences punishable by Section 121,
or conspires to overawe, by means of criminal force or the
show of criminal force, the Central Government or any
State Government, shall be punished with imprisonment for
life, or with imprisonment of either description which may
D extend to ten years, and shall also be liable to fine.
Explanation.- To constitute a conspiracy under this section,
it is not necessary that any act or illegal omission shall take
place in pursuance thereof."
E
542. Section 122 similarly makes col!ection of arms with
intention of "waging war" per se an offence, regardless of
whether or not the arms were put to actual use. This Section
again uses the expression "Government of India" and it reads
as under:-
F
"122. Collecting arms, etc., with intention of waging war
against the Government of India. - Whoever collects men,
arms or ammunition or otherwise prepares to wage war
with the intention of either waging or being prepared to
G wage war against the Government of India, shall be
punished with imprisonment for life or imprisonment of
aither description for a term not exceeding ten years, and
shall also be liable to fine."
543. Section 123 deals with 'Concealing with intent to
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 601
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
facilitate design to wage war against the Government of India'. A
Section 125 deals with 'Waging war against any Asiatic Power
in alliance with the Government of India', and Section 126 deals
with 'Committing depredation on territories of Power at peace
with the Government of India'.
B
544. Here it may also be noted that Section 39 CrPC read
with Section 176 of the Penal Code makes it an offence for
any person who is aware of the commission of, or of the
intention of any person to commit, an offence under Sections
121 to 126, both inclusive (that is, offences against the State
specified in Chapter VI of the Code), to omit giving any notice C
or furnishing any information to any public servant. Moreover,
Section 123 of the Penal Code makes it an offence to conceal,
whether by act or omission, the existence of a design to "wage
war" against the Government of India, when intending by such
concealment to facilitate, or knowing it to be likely that such D
concealing will facilitate, the waging of such war.
545. The question that arises for consideration, therefore,
is what is the true import of the expression "Government of
India"? In its narrower sense, Government of India is only the E
executive limb of the State. It comprises a group of people, the
administrative bureaucracy that controls the executive functions
and powers of the State at a given time. Different governments,
in continuous succession, serve the State and provide the
means through which the executive power of the State is F
employed. The expression "Government of India" is surely not
used in this narrow and restricted sense in Section 121. In our
considered view, the expression "Government of India" is used
in Section 121 to imply the Indian State, the juristic embodiment
of the sovereignty of the country that derives its legitimacy from G
the collective will and consent of its people. 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
H
602 SUPREME COURT REPORTS [2012] 8 S.C.R.
A people of the territory and exercised by a representative
government.
546. It is important to note here that earlier the word used
in Section 121 (as well as all the other Sections referred to
above) was "Queen". After the formation of the republic under
8
the Constitution it was substituted by the expression
"Government of India" by the Adaption of Laws Order of 1950.
In a republic, sovereignty vests in the people of the country and
the lawfully elected government is simply the representative and
a manifestation of the sovereign, that is, the people. Thus, the
C expression "Government of India", as appearing in Section 121,
must be held to mean the State or interchangeably the people
of the country as the repository of the sovereignty of India which
is manifested and expressed through the elected.Government.
D 547. An illuminating discussion on the issue of "Waging
war against the Government of India" is to be found in this
Court's decision in Navjot Sandhu. In paragraph 272 of the
judgment P. Venkatarama Reddi, J., speaking for the Court,
referred to the report of the Indian Law Commission that
E examined the draft Penal Code in 1847 and quoted the
following passage from the report:
"We conceive the term ' wages war against the
Government' naturally to import a person arraying himself
in defiance of the Government in like manner and by like
F means as a foreign enemy would do, and it seems to
us, we presume it did to the authors of the Code that any
definition of the term so unambiguous would be
superfluous."
G 548. To us, the expression, "in like manner and by like
means as a foreign enemy" (highlighted by us in the above
quotation), is very significant to understand the nature of the
violent act~ that would amount to waging war. In "waging war",
the intent of the foreign enemy is not only· to disturb public peace
H or law and order or to kill many people. A foreign enemy strikes
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 603
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
at the sovereignty of the State, and his conspiracy and actions A
are motivated by that animus.
549. In Navjot Sandhu, the issue of "waging war" against
the Government of India has also been considered in relation
to terrorist acts and in that regard the Court observed and held
8
as follows:
"275. War, terrorism and violent acts to overawe the
established Government have many things in common. It
is not too easy to distinguish them ......
c
276. It has been aptly said by Sir J.F. Stephen:
"Unlawful assemblies, riots, insurrections, rebellions,
levying of war are offences which run into each other and
not capable of being marked off by perfectly definite
boundaries. All of them have in common one feature, D
namely, that the normal tranquility of a civilized society is,
in each of the cases mentioned, disturbed either by actual
force or at least by the show and threat of it."
277. To this list has to be added "terrorist acts" which are E
so conspicuous now-a-days. Though every terrorist act
does not amount to waging war, certain terrorist acts can
also constitute the offence of waging war and there is no
dichotomy between the two. Terrorist acts can manifest
themselves into acts of war. According to the learned F
Senior Counsel for the State, terrorist acts prompted by
an intention to strike at the sovereign authority of the State/
Government, tantamount to waging war irrespective of the
number involved or the force employed.
278. It is seen that the first limb of Section 3(1) of POTA- G
"with intent to threaten the unity, integrity, security or
sovereignty of India or to strike terror in the people or any
section of the people does any act or thing by using
H
604 SUPREME COURT REPORTS [2012] 8 S.C.R.
A bombs, dynamite or other explosive substances or
inflammable substances or firearms or other lethal
weapons or poisons or noxious gases or other chemicals
or by any other substances (whether biological or
otherwise) of a hazardous nature or by any other means
B whatsoever".
and the acts of waging war have overlapping features.
However, the degree of animus or intent and the
magnitude of the acts done or attempted to be done would
assume some relevance in order to consider whether the
c terrorist acts give rise to a state of war. Yet, the
demarcating line is by no means clear, much less
transparent. It is often a difference in degree. The
distinction gets thinner if a comparison is made of terrorist
acts with the acts aimed at overawing the Government by
D means of criminal force. Conspiracy to commit the latter
offence is covered by Section 121-A."
550. This answers Mr. Ramachandran's submissions to
the effect that if an offence comes within the definition of
E "terrorist act" under Section 15 of the Unlawful Activities
(Prevention) Act, it would automatically fall out of Section 121
of the Penal Code, as also his rather extreme submission that
the incorporation of Chapter IV of the Unlawful Activities
(Prevention) Act, 1967, should be viewed as deemed repeal
F of Section 121 of the Penal Code. As explained in Navjot
Sandhu, a "terrorist act" and an act of "waging war against the
Government of India" may have some overlapping features, but
a terrorist act may not always be an act of waging war against
the Government of India, and vice-versa. The provisions of
G Chapter IV of the Unlawful Activities (Prevention) Act and those
of Chapter VI of the Penal Code, including Section 121,
basically cover different areas.
551. Coming back to the facts of the case in hand, we find
that the primary and the first offence that the appellant and his
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 605
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
co-conspirators committed was the offence of waging war A
against the Government of India. It does not matter that the
target assigned to the appellant and Abu Ismail was CST
Station (according to Mr. Ramachandran, no more than a
public building) where they killed a large number of people or
that they killed many others on Badruddin Tayabji Marg and in s
Cama Hospital. What matters is that the attack was aimed at
India and Indians. It was by foreign nationals. People were killed
for no other reason than they were Indians; in case of foreigners,
they were killed because their killing on Indian soil would
embarrass India. The conspiracy, in furtherance of which the C
attack was made, was, inter alia, to hit at India; to hit at its
financial centre; to try to give rise to communal tensions and
create internal strife and insurgency; to demand that India should
withdraw from Kashmir; and to dictate its relations with other
countries. It was in furtherance of those objectives that the D
c;Uack was made, causing the loss of a larqe number of people
and injury to an even greater number of,. aople. Nothing could
have been more "in like manner and by like means as a foreign
enemy would do".
552. In this connection Mr. Gopal Subramanium has E
referred to the transcripts of the conversations between the
terrorists and their collaborators across the border. The learned
Counsel referred from the appellant's confessional statement
made bPfore the magistrate to the passages where instructions
are given by Amir Hafiz Sayc>ed (wanted accused no. 1), Zaki- F
ur-Rehman Lakhvi (wanted accused no. 2), and others in
connection with the main purpose of the attack. He also
referred to a number of passages from the transcripts of
conversations between the terrorists and their collaborators
across the border (which we have already referred to in the G
earlier part of the judgment), to show that the attack was clearly
an enemy action. We are of the view that the submission of Mr.
Subramanium is well-founded and fit to be accepted.
553. On a careful consideration of the submissions of the
H
606 SUPREME COURT REPORTS [2012] 8 S.C.R.
A two sides and the materials on record we have no hesitation
in holding that the appellant has been rightly held guilty of
waging war against the Government of India and rightly
convicted under Sections 121, 121A and 122 of the Penal
Code.
B
VI. The Question of Sentence
554. The trial court has awarded five (5) death sentences
to the appellant for the offences punishable under:
c (i) Section 1208 IPC read with Section 302 IPC for
conspiracy to commit murder;
(ii) Section 121 IPC for waging war against the
Government of India;
D (iii) Section 16 of the Unlawful Activities (Prevention)
Act, 1967;
(iv) Section 302 IPC for committing murder of 7
persons;
E (v) Section 302 IPC read with Section 34 and Section
302 IPC read with Sections 109 and 120-B IPC.
555. The High Court confirmed the death sentences given
to the appellant by the trial court.
F
556. Mr. Ramachandran, however, submitted that in no
case should the appellant be given the death penalty. The
learned Counsel submitted that no person can be deprived of
his life except according to procedure established by law. It is
G now well-established that the "procedure" must be fair, just and
reasonable, in other words following the "due process of law".
Hence, the Court must refrain from awarding the extreme
penalty of death, irrevocable and irreversible in nature, in a
case where there is the slightest doubt regarding the complete
fairness of the trial. The learned Counsel submitted that the
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 607
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
appellant's trial was compromised on due process and, A
therefore, he should not be given the death sentence.
557. Mr. Ramachandran's contention that the trial of the
appellant was less than completely fair is based on the same
grounds that he earlier advanced to suggest that the trial was
8
vitiated and nullified. He submitted that the appellant's
confession was recorded without adhering to the constitutional
safeguards and that the lawyer nominated to represent him was
not given a reasonable time to prepare the case. The learned
Counsel submitted that an unhappy compromise was struck
between the demands of speedy trial and the requirements of C
a fair trial in this case, and in that situation, prudence would
demand that this Court should not confirm the death penalty
given to the appellant but change it to life sentence.
558. In the earlier parts of the judgment we have already D
considered in detail both the submissions and found them not
worthy of acceptance. We have held that there was no lowering
of the standard of fairness and reasonableness in the
appellant's trial and it, therefore, follows that no mitigation in
punishment can be asked for on that score. E
559. Mr. Ramachandran next submitted that the High Court
has committed a serious error in balancing the aggravating and
the mitigating circumstances against the appellant. The High
Court has viewed the appellant's conviction for "waging war''
as the most aggravating circumstance for awarding him the F
death penalty after wrongly holding him guilty of the charge
relating to waging war against the Government of India. Further,
the High Court wrongly held the appellant "individually
responsible" for the murder of seven (7) persons, including
Amarchand Solanki. The High Court erroneously relied upon G
the testimony of a single witness (PW-52) who said that while
firing at the crowd of passengers at CST the appellant was in
a "joyous mood" (a fact which the witness did not mention in
his statement before the police)
H
608 SUPREME COURT REPORTS (2012] 8 S.C.R.
A 560.As to the charge of waging war against the
Government of India and the appellant being personally
responsible for the killing of seven (7) people, including
Amarchand Solanki, those are fully in accord with our own
findings, arrived at independently, and hence, the High Court
8 was quite justified in taking those facts into account for
determining the punishment for the appellant. As regards the
statement of PW-52 that the appellant was in "joyous mood",
nothing depends on that and we asked Mr. Ramachandran to
address us on the issue of sentence keeping that statement
C by PW-52 completely aside.
561. Mr. Ramachandran submitted that the strongest
reason for not giving the death penalty to the appellant was his
young age; the appellant was barely twenty-one (21) years old
at the time of the commission of the offences. And now he
D would be twenty-five (25) years of age. It is indeed correct that
'
the appellant is quite young, but having said that one would think
that nothing was left to be said for him. Mr. Ramachandran,
however, thinks otherwise and he has many more things to say
in the appellant's favour. Mr. Ramachandran submitted that the
E Court cannot ignore the family and educational background and
the economic circumstances of the appellant, and in
determining the just punishment to him the Court must take
those, too, into account. The learned Counsel submitted that
here is a boy who, as a child, loved to watch Indian movies.
F But he hardly had a childhood like other children. He dropped
out of school after class IV and was forced to start earning by
hard manual labour. Soon thereafter, he had a quarrel with his
father over his earnings and that led to his leaving his home.
At that immature age, living away from home and family and
G earning his livelihood by manual labour, he was allured by a
group of fanatic murderers seemingly engaged in social work.
He thought that he too should contribute towards helping the
Kashmiris, who he was led to believe were oppressed by the
Indian Government. Mr. Ramachandran submitted that, seen
H from his point of view, the appellant may appear completely and
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 609
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
dangerously wayward but his motivation was good and A
patriotic. Mr. Ramachandran further submitted that once
trapped by Lashkar-e-Toiba he was completely brain-washed
and became a tool in their hand. While executing the attack on
Mumbai, along with nine (9) other terrorists, the appellant was
hardly in control of his own mind. He was almost like an B
automaton working under remote control, a mere extension of
the deadly weapon in his hands.
562. Mr. Ramachandran submitted that, viewed thus, it
would appear wholly unjust to give the death penalty to the
appellant. The death penalty should be kept reserved for his C
handlers, who, unfortunately, are not before a court till now. If
the submission of Mr. Ramachandran is taken one step further
it would almost appear as if it was a conspiracy by destiny that
pushed the appellant to commit all his terrible deeds, and all
those who were killed or injured in Mumbai were predestined D
to be visited by his violence. We have no absolute belief in the
philosophical doctrine of predetermination and, therefore, we
are completely unable to accept Mr. Ramachandran's
submission. In this proceeding before this Court we must judge
the actions of the appellant and the offences committed by him E
as expressions of his free will, for which he alone is responsible
and must face the punishment.
563. We are unable to accept the submission that the
appellant was a mere tool in the hands of the Lashkar-e-Toiba. F
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 G
parasr, a patriotic Pakistani at war with this c;:ountry. 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
H
610 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 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 104 • Unfortunately, he is wholly remorseless and any
feeling of pity is unknown to him. He kills without the slightest
B 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
C of Gama 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 Gama Hospital.
564. The saddest and the most disturbing part of the case
D 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 parasf', 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
E 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
F 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
G remorse on the part of the appellant. The High Court, too, has
noticed that the appellant never showed any remorse for the
104. Recall here the "plea of guilty" statement made by him in the midst of
his trial. In this statement he artfully and very subtly changed his eartier
statement, recorded under Section 164 CrPC, thus cleverly offering himself
H for conviction but trying to escape the extreme penalty.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 611
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
large-scale murder committed by him. This, to our mind, A
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.
B
565. Coming back to the legalese of the matter:
The Constitutional validity of death penalty was tested in
Bachan Singh v. State of Punjab 105 and in that case a
Constitution Bench of this Court, while upholding the
Constitutional validity of death sentence, observed that the C
death penalty may be invoked only in the rarest of rare cases.
This Court stated that:
"209. .. .. For persons convicted of murder life
imprisonment is the rule and death sentence an exception.
0
A real and abiding concern for the dignity of human life
postulates resistance to taking a life through law's
instrumentality. That ought not to be done save in the
rarest of rare cases when the alternative option is
unquestionably foreclosed."
E
(Emphasis Supplied)
566. The Bachan Singh principle of the 'rarest of rare
cases' came up for consideration and elaboration in Machhi
Singh v. State of Punjab 106 • It was a case of extraordinary F
brutality (from normal standards but nothing compared to this
case!). On account of a family feud Machhi Singh, the main
accused in the case along with eleven (11) accomplices, in the
course of a single night, conducted raids on a number of villages
killing seventeen (17) people, men, women and children, for no G
reason other than they were related to one Amar Singh and his
·sister Piyaro Bai. The death sentence awarded to Machhi Singh
10s. (1980) 2 sec 684.
106. (1983) 3 sec 470 H
612 SUPREME COURT REPORTS [2012] 8 S.C.R.
A and two other accused by the trial court and affirmed by the High
Court was also confirmed by this Court.
567. In Machhi Singh this Court observed that though the
"community" revered and protected life because "the very
B humanistic edifice is constructed on the foundation of reverence
for life principle" it may yet withdraw the protection and demand
death penalty. The kind of cases in which protection to life may
be withdrawn and there may be the demand for death penalty
were then enumerated in the following paragraphs:
c "32. .. . It may do so "in rarest of rare cases" when its
collective conscience is so shocked that it will expect the
holders of the judicial power centre to inflict death penalty
irrespective of their personal opinion as regards
desirability or otherwise of retaining death penalty. The
D community may entertain such a sentiment when the crime
is viewed from the platform of the motive for, or the manner
of commission of the crime, or the anti-social or abhorrent
nature of the crime, such as for instance:
1. Manner of commission of murder
E
33. When the murder is committed in an extremely brutal,
grotesque, diabolical, revolting or dastardly manner so as
to arouse intense and extreme indignation of the
community. For instance,
F
(i) when the house of the victim is set aflame with the
end in view to roast him alive in the house.
(ii) when the victim is subjected to inhuman acts of
torture or cruelty in order to bring about his or her death.
G
, (iii) when the body of the victim is cut into pieces or.
his body is dismembered in a fiendish manner.
II. Motive for commission of murder
H
MOHAMMED AJMAL MOHAMMAD A.MIR KASAB @ABU 613
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
34. When the murder is committed for a motive which A
evinces total depravity and meanness. For instance when
(a) a hired assassin commits murder for the sake of money
or reward (b) a cold-blooded murder is committed with a
deliberate design in order to inherit property or to gain
control over property of a ward or a person under the B
control of the murderer or vis-a-vis whom the murderer is
in a dominating position or in a position of trust, or le) a
murder is committed in the course for betrayal 01 the
motherland.
111. Anti-social or socially abhorrent nature of the crime
c
35. (a) When murder of a member of a Scheduled Caste
or minority community, etc., is committed not for personal
reasons but in circumstances which arouse social wrath.
For instance when such a crime is committed in order to D
terrorise such persons and frighten them into fleeing from
a place or in order to deprive them of, or make them
surrender, i- :ids or benefits conferred on them with a view
to reverse past i :justices and in order to restore the social
balance. E
(b) In cases of "bride burning" and what are known
as "dowry deaths" or when murder is committed in order
to remarry for the sake of extracting dowry once again or
to marry another woman on account of infatuation.
F
IV. Magnitude of crime
36. When the crime is enormous in proportion. For
instance when multiple murders say of all or almost all the
members of a family or a large number of persons of a G
particular caste, community, or locality, are committed.
V. Personality of victim of murder
37. When the victim of murder is (a) an innocent child who
H
614 SUPREME COURT REPORTS [2012] 8 S.C.R.
A could not have or has not provided even an excuse, much
less a provocation, for murder (b) a helpless woman or a
person rendered helpless by old age or infirmity (c) when
the victim is a person vis-a-vis whom the murderer is in a
position of domination or trust (d) when the victim is a
B public figure generally loved and respected by the
community for the services rendered by him and the
murder is committed for political or similar reasons other
than personal reasons."
568. The above principles are generally regarded by this
C Court as the broad guidelines for imposition of death sentence
and have been followed by the Court in many subsequent
decisions.
569. If we examine the present case in light of the Machhi
D Singh decision, it would not only satisfy all the conditions laid
down in that decision for imposition of death sentence but also
present several other features that could not have been
conceived of by the Court in Machhi Singh. We can even say
that every single reason that this Court might have assigned
E for confirming a death sentence in the past is to be found in
this case in a more magnified way.
570. 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
F 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
G 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.
H 571. The case presents the element of previous planning
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 615
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J ]
and preparation as no other case. For execution of the A
conspiracy, the appellant and the nine (9) other dead accused,
his accomplices, were given rigorous and extensive training as
combatants. The planning for the att~ck was meticulous and
greatly detailed. The route from Karachi to Mumbai, the landing
site at Mumbai, the different targets at Mumbai were all B
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 c
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.
D
572. 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. E
573. This case has shocked the collective conscience of
the Indian people as few other cases have.
574. The number of persons killed and injured is not only F
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 G
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
H
616 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 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.
B 575. 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, Hemani Karkare, Ashok Kamte, Vijay
C 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 th<
appellant and Abu Ismail. The rest of the policemen and law
enforcement officers, including the NSG Commando Major
D Sandeep Unnikrihsnan, were killed as part of the larger
conspiracy to which the appellant was a party.
576. The loss of property caused by the attack is colossal,
over Rupees one hundred and fifty crores (Rs. 150Cr.), again
E of a scale as in no other case.
577. The offences committed by the appellant show a
degree of cruelty, brutality and depravity as in ;ry few other
cases.
F 578. 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 ROX bombs.
579. As to the personality of the victims, all the persons
G killed/injured at CST, Badruddin Tayabji Marg and Cama
Hospital were harmless, defenceless people. What is more, the·'
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.
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 617
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
580. It is already seen above that the appellant never A
showed any repentance or remorse, which is the first sign of
any possibility of reform and rehabilitation.
581. In short, this is a case of terrorist attack from across
the border. It has a magnitude of unprecedented enormity on
B
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 C
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.
582. Against all this, the only mitigatiQg factor is the
appellant's young age, but that is completely offset by the D
absence of any remorse on his part, and the resultant finding
that in his case there is no possibility of any reformation or
rehabilitation.
583. In the effort to have the appellant spared of the death E
penalty Mr. Rainachandran also relied upon several
observations and remarks made by this Court in a number of
judgments. He cited before the Court: (i) Mohd. Mannan V
State of Bihar101; (ii) Swamy Shraddananda (2) v. State of
Karnataka 108; (iii) Santosh Kumar Satishbhushan Bariyar v.
F
State of Maharashtra 100 ; (iv) Mohd. Farooq Abdul Gafur v.
State of Maharashtra110 ; (v) Rameshbhai Chandubhai Rathod
v. State of Gujarat11 1; (vi) Rameshbhai Chandubhai Rathod
(2) v. State of Gujarat112 ; (vii) Mui/a and another v. State of
107. (2011) 5 sec 317, paras 23-24 G
108. (2008) 13 sec 767, para 43, 48-53
109. (2009) 6 sec 498, para 64-66, 71-72, 80-89
110. (2009) 11 SCALE 327, para 11-23: (2010) 14 sec 641
111. (2009) 5 sec 740, para 83-84, 107-110
112. c2011) 2 sec 764 H
618 SUPREME COURT REPORTS [2012) 8 S.C.R.
A Uttar Pradesh 113 ; (viii) Dilip Premnarayan Tiwari v. State of
Maharashtra 114; (ix) R S Budhwar v U0/115; and (x) State of
Maharashtra v. Bharat Chaganlal Raghani116 .
584. The observations relied upon by Mr. Ramachandran
8 were made in the facts of those cases. As a matter of fact, in
some of the cases relied upon by Mr. Ramachandran, the Court
actually confirmed the death penalty given to the accused.
Moreover, the facts of those cases are totally incomparable to
the facts of the case in hand, and those decisions are of no
C help to the appellant.
585. Putting the matter once again quite simply, 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
D 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
E 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.
F 586. 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. We hold accordingly and affirm the
convictions and sentences of the appellant passed by the trial
court and affirmed by the High Court.
G
113. (201 O) 3 sec 508, para 80
114. (2010) 1 SCC T15, para 66-67
115. (1996) 9 sec 502, para 15
H 11e. (2001) 9 sec 1, para 1, 63
MOHAMMEDAJMALMOHAMMADAMIR KASAB@ABU 619
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
587. The appeals are accordingly dismissed. A
CRIMINAL APPEAL N0.1961 OF 2011
588. This appeal is filed at the instance of the State of
Maharashtra against the acquittal of Fahim Ansari and
Sabauddin Ahamed (accused Nos. 2 and 3 respectively) B
recorded by the trial court and affirmed by the High Court. As
noted, in the judgment in Criminal Appeal Nos.1899-1900 of
2011, these two accused faced the trial along with and on the
same charges as Kasab.
589. Their connection with the other accused in the case, C
according to the prosecution, was through conspiracy. Fahim
Ansari is said to have prepared, by hand, maps of various
places of Mumbai to facilitate the attack by the terrorists who
landed in the city. One such map was recovered from the
trouser pocket of Abu Ismail (deceased accused no.1) during D
inquest and was seized under the seizure panchnama (Ext. no.
99).
590. According to the prosecution case, Fahim Ansari
handed over the maps prepared by him to Sabauddin Ahamed
in Kathmandu, Nepal and the latter sent or delivered those E
maps to the perpetrators of the crime in Pakistan.
591. This part of the prosecution case is based on the
testimony of Naruddin Shaikh (PW-160).
592. It is further alleged that in order to provide ancillary F
logistical support to the terrorists landing in Mumbai, Fahim
Ansari had made arrangements for his stay in Colaba area of
South Mumbai. In order to stay in close proximity to Badhwar
Park he was searching for a place of residence in fishermen's
colony there and he had taken admission in a Computer G
Institute viz., "Softpro Computer Education" situated at Fort,
Mumbai, as an excuse for staying in that area.
593. However, when the attack took place on November
26, 2008, neither Fahim Ansari nor Sabauddin Ahamed were
H
620 SUPREME COURT REPORTS [2012] 8 S.C.R.
A present in Mumbai. They were in the custody of U.P. Police,
having been arrested earlier in connection with a terrorist attack
on the RPF Camp at Rampur.
594. In support of the second part of its case, the
prosecution has examined a number of witnesses, namely,
B Police Inspector Prashant Marde (PW-48), Jivan Gulabkar
(PW-35), Rajendra Bhosa/e (PW-38), Ms. Shantabai Bhosa/e
(PW-40), Police Inspector Shripad Kale (PW-47), Jayant
Bhosale (PW-146), Sharad Vichare (PW-265), Shivaji
Shivekar (PW-14), API Subhash Warang (PW-27), Ashok
C Kumar Raghav (PW-213), Manpreet Vohra (PW-254),
Krantikumar Varma (PW-61) and Dr. Shailesh Mohite (PW-
23).
595. We have gone through the evidence of Naruddin
Shaikh and the other witnesses very carefully. We are of the
D view that the evidence of Naruddin Shaikh is completely
unacceptable. The evidences of the other witnesses also do
not inspire confidence insofar as these two accused are
concerned.
E 596. The trial court and the High Court have considered
the evidences relating to these two accused in far greater detail.
Both the courts have analysed the prosecution evidence in
regard to the two accused at great length and have given very
good reasons to hold the prosecution evidence unworthy of
reliance to hold such grave charges against the two accused.
F We are in full agreement with the reasons assigned by the trial
court and the High Court for acquitting the two accused of all
the charges. The view taken by the trial court and the High Court
is not only correct but on the facts of the case, that is the only
possible view.
G
597. We find no merit in the appeal and it is, accordingly,
dismissed.
TRANSFER PETITION (CRIMINAL) N0.30 OF 2012
598. In view of the judgment in Criminal Appeal Nos. 1899-
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 621
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
1900 of 2011, the Transfer Petition does not survive and it is, A
accordingly, dismissed.
THE POSTSCRIPT
599. The decision in the appeal is over. But there are still
a few things for us to say before we finally close this matter. 8
600. At the beginning of the hearing of the appeal, Mr.
Gopal Subramanium avowed that, though appearing for the
prosecution, he would like the best for the appellant. He wished
that the case of the appellant be presented before the Court at
the highest level and that it should receive the most careful C
scrutiny by the Court. The solemnity and sincerity of his
declaration set the tone for the proceedings before the Court.
The discourses were luminous, warm and stimulating but
completely free from heat, rancour or anger, leave alone any
vengefulness. Mr. Subramanium, erudite and sensitive, was full o
of restraint; always down-playing the prosecution case a notch
or two and never making a statement of fact unless absolutely
certain of its correctness. Mr. Ramachandran, cool and clinical,
gently tried to persuade the Court to his point of view. In the
course of the hearing of the case, which was spread over 13 E
weeks, not once were the voices raised, not once was th·e
Counsel of the other side interrupted and contradicted on a
statement of fact. In my twenty years on the bench I have not
heard a serious case debated in such a congenial atmosphere
as created by Mr. Subramanium and Mr. Ramachandran in this F
case.
601. Mr. Ramachandran, appearing for the appellant, was
assisted by Mr. Gaurav Agrawal and a small team of juniors.
Mr. Subramanium, representing the State of Maharashtra, was
assisted by Mr. Ujjawal Nikkam, the Spl. PP who conducted G
the trial and a team of juniors. The juniors' teams also showed
remarkable preparation and resourcefulness. Any query on
facts was answered in no time with reference to volume number
and page number from the records that appeared like a small
mountain. We are indebted to Mr. Subramanium and Mr. H
622 SUPREME COURT REPORTS [2012) 8 S.C.R.
A Ramachandran and their respective teams and we put our
gratitude on record.
602. In this case we came across heroes like Tukaram
Ombale, Hemani Karkare, Ashok Kamte, Vijay Salaskar and
Sandeep Unnikrishnan, who lost their lives in the fight against
B terrorism. We salute every policeman, every member of the
security forces and others who laid down their lives saving
others and helping to catch or neutralise the ten terrorists. We
have great admiration for the courage and sense of duty shown
by the policemen and the members of the security forces who
C received injuries in discharge of their duties and we extend our
deepest sympathies to them for their injuries. We compliment
all those who showed great presence of mind and
professionalism and, caring little for their own safety, saved
countless lives or photographed the terrorists on their killing
D spree thus providing unimpeachable evidence for the court. We
mourn the death of 148 civilians, both Indians and foreign
nationals, who fell victim to the orgy of terror unleashed on the
city, and extend our heart-felt condolences to their families. We
also extend our deepest sympathies to all the 238 people who
E !,luffered injuries at the hands of the terrorists. We also greatly
complement the resilient spirit of Mumbai that, to all outward
appearances, recovered from the blow very quickly and was
back to business as usual in no time.
603. In the course of hearing of the appeal we also came
F to know the trial Judge Shri Tahiliani. From the records of the
case he appears to be a stern, no-nonsense person. But he is
a true flag bearer of the rule of law in this country. The manner
in which he conducted the trial proceedings and maintained the
record is exemplary. We seriously recommend that the trial court
G records of this case be included in the curriculum of the National
Judicial Authority and the Judicial Authorities of the different
States as a model for criminal trial proceedings.
604. We direct the Maharashtra Government to pay a sum
of Rupees eleven lakh (Rs. 11 Lakhs) to Mr. Raju
H Ramachandran and Rupees three lakh fifty thousand to Mr.
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 623
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Gaurav Agrawal (Rs 3.5 Lakhs) as token remuneration for their A
very valuable assistance to the Court. The payments should be
made within two months from today.
605. With this we come to the close of the matter and we
end here.
B
SCHEDULE I
LIST OF PERSONS KILLED
Sr. NAME POLICE/ NATIONALITY
No. SECURITY c
FORCE/
CIVILIAN
KU BER
1. Amarchand Naran Solanki Civilian Indian D
CST
2. Shashank Chandrasen Police Indian
Shinde (Inspector)
E
3 Hamina Begum Hamid Civilian Indian
Shaikh
4 Ashraf Ali Allahrakha Civilian Indian
Shaikh
5 Ajij Nabilal Rampure Civilian Indian F
6 Aakash Akhilesh Yadav Civilian Indian
7 Mukesh Bhikaji Jadhav Home Indian
Guard
G
8 Sitaram Mallapa Sakhare Civilian Indian
9 Rahamtulla Ibrahim Civilian Indian
10 Mishrilal Mourya Shri Civilian Indian
Garib Mourya
H
624 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 11 Vinod Madanlal Gupta Civilian Indian
12 Sunil Ashok Thackare Civilian Indian
13 Haji Ejaj Bhai lmamsaheb Civilian Indian
Dalal
B
14 Mira Narayan Chattarji Civilian Indian
15 Shirish Sawla Chari Civilian Indian
16 Sushilkumar Vishwambhar Civilian Indian
Sharma
c
17 Murlidhar Laxman Railway Indian
Choudhary Protection
Force
(Constable)
D 18 Ambadas Ramchandra Police Indian
Pawar (Constable)
19 Jaikumar Durairaj Nadar Civilian Indian
20 Deepali Janardhan Chitekar Civilian Indian
E 21 Raju Janardhan Chitekar Civilian Indian
22 Aditya Ashok Yadav Civilian Indian
23 lsibul Raheman Faizuddin Civilian Indian
Raheman Shaikh
F
24 Prakash Janath Manda! Civilian Indian
25 Harakha Lalji Solanki Civilian Indian
26 Mohamed Amanat Civilian Indian
Mohamad Ali
G
27 Sarafraz Sallauddin Ansari Civilian /Indian
28 Ayub Yakub Qureshi Civilian Indian
29 Afarin Shahadab Qureshi Civilian Indian
H 30 Avadesh Sudama Pandit Civilian Indian
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 625
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
31 Chandulal Kashinath Tande! Civilian Indian A
32 Manohar Sohani Civilian Indian
33 Mohamad Hussain Civilian Indian
Mohamad Alamgir Shaikh
B
34 Murtaza Ansari Sallauddin Civilian Indian
Ansari
35 Mohamad Arif Mohamed Civilian Indian
Islam Ansari
36 Mohamad Mukhtar Malik Civilian Indian c
37 Abbas Rajjab Ansari Civilian Indian
38 Unknown Male person Civilian Indian
39 Mrs.Gangabai Baburao Civilian Indian
Kharatmol D
40 Narul Islam Ajahar Mulla Civilian Indian
41 Murgan Palaniya Pillai Civilian Indian
42 Rakhila Abbas Ansari Civilian Indian
E
43 Nitesh Vijaykumar Sharma Civilian Indian
44 Fatmabi Rehaman Shaikh Civilian Indian
45 Meenu Arjun Ansari Civilian Indian
46 Mohamad ltihas Ansari Civilian Indian F
47 Mastan Munir Qureshi Civilian Indian
48 M.V. Anish Civilian Indian
49 Upendra Birju Yadav Civilian Indian
50 Unknown Male person Civilian Indian G
51 Poonam Bharat Navadia Civilian Indian
52 Baichan Ramprasad Gupta Civilian Indian
53 Nathuni Parshuram Yadav Civilian Indian
H
626 SUPREME COURT REPORTS [2012] 8 S.C.R.
A CAMA-IN
54 Prakash Pandurang More Police Indian
(Sub-
Inspector)
B 55 Vijay Madhukar Khandekar Police Indian
(Constable)
56 Saban Balu Ughade Civilian Indian
57 Bhanu Devu Narkar Civilian Indian
c 58 Thakur Budha Waghela Civilian Indian
59 Bhagan Gangaram Shinde Civilian Indian
60 Shivashankar Nirant Gupta Civilian Indian
D CAMA-OUT
61 Hemani Kamlakar Karkare Police
(Joint
Comm is- Indian
sioner,
E ATS)
62 Ashok Marutirao Kamate Police
(Additional
Comm is-
sioner - Indian
F East
Region)
63 Vijay Sahadev Salaskar Police Indian
(lnsp-
G -ector)
64 Bapurao Sahebrao Police Indian
Durgude (Sub-
Inspector)
65 Balasaheb @ Nana Police Indian
H Chandrakant Bhosale (Assistant
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 627
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Sub- A
Inspector)
66 Arun Raghunath Chite Police Indian
(Constable)
67 Jayawant Hanumant Patil Police Indian B
(Constable)
68 Yogesh Shivaji Patil Police Indian
(Constable)
69 Surendrakumar Bindu Rama Civilian Indian c
VINOLI CHOWPATY
70. Tukaram Gopal Ombale Police Indian
(Assistant
Sub- D
Inspector)
VILE PARLE BLAST
71 Mohabbat Umer Abdul Civilian Indian
Khalid
E
72 Laxminarayan Goyal Civilian Indian
LEOPOLD CAFE
73 Subhash Vanmali Vaghela Civilian Indian
74 Pirpashi Mehboobali Shaikh Civilian Indian F
75 Shahabuddin Sirajuddin Khan Civilian Indian
76 Harishbhai. Durlabbhai Civilian Indian
Gohil
G
77 Hidayatullah Anwarali Kazi Civilian Indian
78 Malyesh Manvendra Civilian Indian
Banarjee
79 Gourav Balchand Jain Civilian Indian
H
628 SUPREME COURT REPORTS (2012] 8 S.C.R.
A
80 P.K. Gopalkrishnan Civilian Indian
81 Kamal Nanakram Motwani Civilian Indian
82 Jurgen Hienrich Rudolf Civilian German
B 83 Daphne Hilary Schmidt Civilian German
MAZGAON BLAST
84 Mrs. Jarina Samsuddin Civilian Indian
Shaikh
c 85 Fulchandra Ramchandra Civilian Indian
Bind
86 Mrs. Reema Mohamad Civilian Indian
Rabiul
D HOTEL TAJ
87 Major Sandip Unnikrishnan Security Indian
Force
88 Rahul Subhash Shinde Police Indian
E (Constable)
89 Zaheen Sayyed Nisar Civilian Indian
Ali Jafary Mateen
90 Andres Don Livera Civilian British
F 91 Gunjan Vishandas Narang Civilian Indian
92 Vishandas Giridharidas Civilian Indian
Narang
93 Vijayrao Anandrao Banja Civilian Indian
G 94 Sadanand Ratan Patil Civilian Indian
95 Thomas Verghese Civilian Indian
96 Ravi Jagan Kunwar Civilian Indian
H
97 Boris Mario Do Rego Civilian Indian
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 629
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
98 Satpakkam Rahmatulla Civilian Indian A
Shaukatali
99 Faustine Basil Martis. Civilian Indian
100 Kaizad Naushir Kamdin Civilian Indian
101 Neelam Vishandas Narang Civilian Indian B
102 Rupinder Devenersing Civilian Indian
Randhava
103 Eklak Ahmed Mustak Civilian Indian
Ahmed c
104 Maksud Tabarakali Shaikh Civilian Indian
105 Feroz Jamil Ahmed Khan Civilian Indian
106 Teitelbaum Aryeh Levish Civilian Israeli
D
107 Duglas Justin Markell Civilian Australian
108 Chaitilal Gunish Civilian Mauritius
109 Willem Jan Berbaers Civilian Belgium
110 Nitisingh Karamveer Kang Civilian Indian E
111 Samarveer Singh Civilian Indian
Karamveer Singh Kang
112 Udaysingh Karamveer Civilian Indian
Singh Kang F
113 Sabina Saigal Saikia Civilian Indian
114 Hemlata Kashi Pillai Civilian Malaysian
115 Rajiv Omprakash Sarswat Civilian Indian G
116 Gutam Devsingh Gosai Civilian Indian
117 Rajan Eshwar Kamble Civilian Indian
118 Burki Ralph Rainer Jachim Civilian German
H
630 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 119 Hemani Pravin Talim Civilian Indian
120 Shoeb Ahmed Shaikh Civilian Indian
121 Michael Stuart Moss Civilian British
122 Elizabeth Russell Civilian Canadian
B
NARIMAN HOUSE
123 Salim Hussain Harharwala Civilian Indian
124 Mehzabin @ Maria Civilian Indian
Salim Harharwala
c
125 Rivka Gavriel Holtzberg Civilian Israeli
126 Rabbi Gavriel Noach Civilian Israeli
Holtzberg
D 127 Gajendra Singh Security Indian
Force
128 Ben Zion Chroman Civilian Israeli
129 Norma Shvarzblat Civilian Mexican
E Robinovich
130 Rajendrakumar Baburam Civilian Indian
Sharma
131 Yokevet Mosho Orpaz Civilian Israeli
F HOTEL OBEROI
132 T. Suda Hisashi Civilian Japanese
133 Murad Amarsi Civilian French
G 134 Loumiya Hiridaji Amarsi Civilian French
135 Scherr Alan Michael Civilian American
136 Neomi Leiya Sher Civilian American
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 631
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
137 Sandeep Kisan Jeswani Civilian American A
138 Lo Hawei Yen Civilian Singapore
139 Jhirachant Kanmani @ Jina Civilian Thailand
140 Altino D' Lorenjo Civilian Italian B
141 Brett Gilbert Tailor Civilian Australian
142 Farukh Dinshaw Civilian Indian
143 Reshama Sunil Parikh Civilian Indian
144 Sunil Shevantilal Parekh Civilian Indian c
145 Ajit Shrichand Chabriya Civilian Indian
146 Sanjay Vijay Agarwal Civilian Indian
147 Rita Sanjay Agarwal . Civilian Indian D
148 Mohit Kanhaiyalal Harjani Civilian Indian
149 Monika Ajit Chabriya Civilian Indian
150 Harsha Mohit Harjani Civilian Indian
151 Ravi Dara Civilian Indian
E
152 Uma Vinod Gark Civilian Indian
153 Pankaj Somchand Shah Civilian Indian
154 Ashok Kapoor Civilian Indian F
155 Anand Suryadatta Bhatt Civilian Indian
156 Rohington Bajji Mallu Civilian Indian
157 Kannubhai Zaverbhai Patel Civilian Indian
G
158 Ami Bipinichandra Thaker Civilian Indian
159 Jordan Geigy Fernandise Civilian Indian
160 Neeta Prakash Gaikwad Civilian Indian
161 Shaunak Jayawant Civilian Indian H
632 SUPREME COURT REPORTS
A Chemburkar
162 Wilson Baburao Mandalik Civilian Indian
163 Sarjerao Sadashiv Bhosale Civilian Indian
164 JasminMahendrasingh Burji Civilian Indian
B
165 Sanjy Sambhajirao Surve Civilian Indian
166 Bimolchand Maibam Civilian Indian
LIST OF INJURED PEOPLE
c
Sr. NAME POLICE/ NATION-
No. SECURITY ALITY
FORCE/
CIVILIAN
D CST
1 Mukesh ·Bhagwatprakash Civilian Indian
Agarwal'
2 Nisha Anilkumar Yadav Civilian Indian
E 3 Jangam Vithalrao Bokade Civilian Indian
4 Parasnath Ramsoman Giri Railway Indian
Protection
Force
F (Head
Constable)
5 Firoz Khan Khushnur Railway Indian
Khan Ghouri Protection
Force
G (Constable)
6 Raziyabegum Noor Qureshi Civilian Indian
7 Sarita Shantaram Harkulkar Civilian Indian
8 Neeta Gajanan Kurhade Civilian Indian
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 633
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM. J.]
9 Ajamat Ali Narhu Sha Civilian Indian A
10 Maltidevi Madan Gupta Civilian Indian
11 Sulochana Chandrakant Civilian Indian
Lokhande
B
12 Vijay Ramchandra Khote Civilian Indian
13 Mumtaz Mohd. Yusuf Khan Civilian Indian
14 Pappu Laldev Jawahar Civilian Indian
Laldev
c
15 Shabir Abdul Salam Dalal Civilian Indian
16 Laxman Shivaji Hundkeri Civilian Indian
17 Akshay Tanaji Supekar Civilian Indian
18 Nimba Shampuri Gosavi Civilian Indian D
19 Mahadev Datta Petkar Civilian Indian
20 Santoshkumar Faujdarsing Civilian Indian
Yadav
21 Miraj Alam Ali Mulla Ansari Civilian Indian E
22 Abdul Rashid Abdul Aziz Civilian Indian
23 Abdul Salam Shaikh Civilian Indian
S. Qureshi
F
24 Akhilesh Dyanu Yadav Civilian Indian
25 Ramzan Sahrif Kadar Sharif Civilian Indian
26 Mohd. Siddiqu Mohd. Civilian Indian
Sagir Alam •
G
27 Sachinkumar Singh Civilian Indian
Santoshkumar Singh
28 Tejas Arjungi Civilian Indian
29 Shamshad Dalal Civilian Indian H
634 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 30 Baby Ashok Yadav Civilia'n lndia.n
31 Shital Uper.dra Yadav Civilian Indian
32 Asha Shridhar Borde Civilian Indian
33 Vatsala Sahadev Kurhade Civilian Indian
B
34 Chandrakant Ganpatirao Civilian Indian
Lokhande
35 Abdul Razak Farukh Nasiruddin Civilian Indian
c 36 Afroz Abbas Ansari Civilian Indian
37 Dadarao Rambhoji Jadhav Civilian Indian
38 Suryabhan Sampat Gupta Civilian Indian
39 Jagendral<umar Civilian Indian
D Kailashkumar Mishra
40 Gopal Julena Prajapati Civilian Indian
41 P. Nirmala Civilian Indian
42 P. Ponuraj Civilian Indian
E
43 Mohan Bharti Civilian Indian·
44 Sushant Nityanand Panda Civilian Indian
45 Annasaheb Ambu Waghmode Civilian Indian
F 46 T. Thavasi Parnal Civilian Indian
47 Anand Bhimrao Arjun Civilian Indian
48 Kanhayya Kedarnath Sahani Civilian Indian
49 Vibha Ashokkumar Singh Civilian Indian
G
50 Seti Alfonso Civilian Indian
51 lndraraj Luise Civilian Indian
52 Jayram Harilal Chawan Civilian Indian
H 53 Sunita Upendra Yadav Civilian Indian
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 635
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J ]
A
54 Sushama Akhilesh Yadav Civilian Indian
55 Raviranjan Shriram Civilian Indian
Virendra
56 Priyanka Chitaranjan Giri Civilian Indian
B
57 lmran Shakur Bhagwan Civilian Indian
58 Rekha Shyam Rathod Civilian Indian
59 Barjrang Jaykaran Prajapati Civilian Indian
60 Satyanand Karunakaro Civilian Indian c
Behra
61 Manoj Prafulchandra Civilian Indian
Kanojia
62 Balaji Baburao Kharatmol Civilian Indian D
63 Mehboob Abbas Ansari Civilian Indian
64 Asif Abdul Rafik Shaikh Civilian Indian
65 Raghvendra Banvasi Singh Civilian Indian
E
66 Ashok Keshwanand Singh Civilian Indian
67 Radhadevi Bodhiram Civilian Indian
Sahani
68 Tapasi Taramniggam Nadar Civilian Indian
F
69 Sayyed Shahnavaz Civilian Indian
Sayyed Salim Mujawar
70 Arvind Gopinath Bhalekar Civilian Indian
71 Shivram Vijay Sawant Civilian Indian G
72 Ashok Shivram Patil Civilian Indian
73 Bharat Ramchandra Government Indian
Bhosale Railway
Police
H
636 SUPREME COURT REPORTS [2012] 8 S.C.R.
A (Assistant
Inspector)
74 Devika Natvarlal Rotawan Civilian Indian
75 Farukh Nasiruddin Civilian Indian
B Khaliluddin
76 Nafisa Sadaf Qureshi Civilian Indian
77 Kishor Vinayak Kale Civilian Indian
78 Sudama Aba Pandarkar Government Indian
c Railway
Police
(Assistant
Sub-
Inspector)
D
79 Pandurang Subrao Patil Government Indian
Railway
Police
(Assistant
Sub-
E
Inspector)
80 Punamsingh Santosh Singh Civilian Indian
81 Vishal Prakash Kardak Civilian Indian
F 82 Sangita Niranjan Sardar Civilian Indian
83 Niranjan Sadashiv Sardar Civilian Indian
84 Ansarallh Saudaarallh Civilian Indian
Baksh Mohd. Hanif
G 85 Harshada Suhas Salaskar Civilian Indian
86 Pappusing Mannusingh Civilian Indian
87 Habibul Mohd. Civilian Indian
Sukurddin Khan
H 88 Anilkumar Rajendra Yadav Civilian Indian
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 637
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
89 Laji Jagganath Pandye Civilian Indian A
90 Sanjay Nemchandra Yadav Civilian Indian
91 Ratankumarji Civilian Indian
Kanhayaprasad Yadav
B
92 Shambunath Munai Yadav Civilian Indian
93 Ganesh Sitaram Sakhare Civilian Indian
94 Ashok Bhimappa Renetala Civilian Indian
95 Alok Harilal Gupta Civilian Indian c
96 Ganpat Gangaram Shigwan Civilian Indian
97 Fakir Mohd. Abdul Gafoor Civilian Indian
98 Murlidhar Chintu Jhole Police Indian
(Head D
Constable)
99 Balu Bandu More Police Indian
(Constable)
100 Prakash Sohanlal Phalore Civilian Indian E
101 Ramji Yabad Napit Railway Indian
Protection
Force
(Assistant
Sub- F
Inspector)
102 Vishveshwar Shishupal Home Indian
Pacharane Guard
103 Adhikrao Gyanu Kale Government Indian G
Railway
Police
(Head
Constable)
H
638 SUPREME COURT REPORTS (2012] 8 S.C.R.
A 104 Uttam Vishnu Sasulkar Home Indian
Guard
105 Vijaya Ramkomal Kushwah Civilian Indian
106 Bharat Shyam Nawadia Civilian Indian
B 107 Anilkumar Dyanoji Harkulkar Civilian Indian
108 Sadahiv Chandrakant Kolke Civilian Indian
109 Prashant Purnachandra Das Civilian Indian
c CAMA-IN
110 Harischandra Sonu Civilian Indian
Shrivardhankar
111 Chandrakant Gyandev Tikhe Civilian Indian
D 112 Kailash Chandrabhan Civilian Indian
Ghegadmal
113 Vijay Abaji Shinde Police Indian
(Assistant
Inspector)
E
114 Sadanand Vasant Date Police Indian
(Additional
Comm is-
sioner)
F 115 Vijay Tukaram Powar Police Indian
(Assistant
Inspector)
116 Sachin Dadasaheb Tilekar Police Indian
(Constable)
G
117 Mohan Gyanoba Shinde Police Indian
(Head
Constable)
118 Hirabai Vilas Jadhav Civilian Indian
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 639
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
119 Vinayak Chintaman Police Indian A
Dandgawhal (Constable)
CAMA-OUT
120 Arun Dada Jadhav Police (Naik) Indian
B
121 Maruti Mahdevrao Phad Civilian Indian
122 Anil Mahadev Nirmal Civilian Indian
123 Shankar Bhausaheb Vhande Police Indian
(Constable)
c
124 Prashant Sadashiv Koshti Civilian Indian
125 Mohd. Asif Abdul Civilian Indian
Gani Memon
126 Kalpanth Jitai Singh Civilian Indian
D
VINOLI CHOWPATY
127 Sanjay Yeshwant Govilkar Police Indian
(Assistant
Inspector)
E
VILE PARLE BLAST
128 Roldan Glandson Ayman Civilian Indian
129 Shyam Sunder Choudhary Civilian Indian
130 Balkrishna Ramchandra Civilian Indian F
Bore
LEOPOLD CAFE
131 Munira-ul Rayesi Civilian Oman
132 Faizal Miran Sabil-ul Civilian Oman
G
Gidgali
133 Asma-un Rayesi Civilian Oman
134 David John Kakar Civilian Australian
H
640 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 135 Harnish Patel British
Civilian
136 Micheal Charles Murphy Civilian British
137 Riyan Michael Murphy Civilian British
B 138 Anamika Bholanath Gupta Civilian Indian
139 Minakshi Raghubhai Dattaji Civilian Indian
140 Bhaskar Paddu Dewadiga Civilian Indian
141 Benjamin Jerold Methis Civilian German
c 142 Pravin Pandurang Sawant Police Indian
(Naik)
143 Kunal Prakash Jaiswani Civilian Indian
144 Ransale Gilbert Civilian Indian
D Santhumayor
145 ljas Abdul Karupadan Civilian Indian
Kuddi
146 Nilesh Mahendra Gandhi Civilian Indian
E
147 Prakash Satan Bharwani Civilian Indian
148 Ramchandra Selumadhav Civilian Indian
Nair
149 Bharat Sasuprasad Gujar Civilian Indian
F
150 Rasika Krushna Sawant Civilian Indian
151 Mohd. Parv_ez Civilian Indian
Aslam Ansari
G 152 Mohd. Ayub Mohd. Civilian Indian
Abdul Ansari
153 Manoj Bahadur Thakur Civilian ·1ndian
154 Fanishang Misha Bhishum Civilian Indian
H 155 Naresh Mulchand Jumani Civilian Indian
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 641
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
156 Prashant Vasant Tambe Civilian Indian A
157 Nivrutti Baburao Gavhane Police Indian
(Naik)
158 Katherin Austin Civilian Australian
B
MAZGAON BLAST
159 Rajendraprasad Civilian Indian
Ramchandra Maurya
160 Abdul Salim Shaikh Civilian Indian
c
161 Shahbaz Juber Khan Civilian Indian
162 Sabira Majid Khan Civilian Indian
163 Schei Abdul Shaikh Civilian Indian
164 Kabir Bablu Shaikh Civilian Indian D
165 Kulsum Babu Shaikh Civilian Indian
166 Jasmin Babu Shaikh Civilian Indian
167 lmran Mohd. Shafi Pathari Civilian Indian
E
168 Manoharabegum Ali Civilian Indian
Ahmed Shaikh
169 Hawa Abdul Salim Shaikh Civilian Indian
170 Sanju Kurshna Ghorpade Civilian Indian F
171 Manorabagum Ali Civilian Indian
Akbar Shaikh
172 Saiddiqui Firoz Shaikh Civilian Indian
173 Shamin Rauf Shaikh Civilian Indian G
174 Rahaman Ali Akbar Shaikh Civilian Indian
175 Heena China Shaikh Civilian Indian
176 Mukhtar Shriniwas Shaikh Civilian Indian
H
642 SUPREME COURT REPORTS (2012] 8 S.C.R.
A
177 Kanhaikumar Harikishor Civilian Indian
Paswan
HOTEL TAJ
178 Deepak Narsu Dhole Police Indian
B (Inspector)
179 Samadhan Shankar More State Indian
Reserve
Police
Force
c
180 Sanjay Uttam Gomase State Indian
Reserve
Police
Force
D 181 Rafal Godas Civilian Spanish
182 Maria Roza Romero Civilian Spanish
183 Simond Helis Civilian British
184 Eyujin Tan Jhonsi Civilian Philippines
E
185 Hanifa Bilakiya Civilian Indian
186 Anjum Gaful Bilakiya Civilian Indian
187 U.T Bernad Civilian German
F 188 Vinay Keshavaji Kuntawala Civilian Indian
189 Deepak Pramod Gupta Civilian Indian
190 Pragati Deepak Gupta Civilian Indian
191 Mohanlal Pratap Taware Civilian Indian
G
192 Sunil Kumar Jodha Security Indian
Force
193 Vishvanath Maruti Gaikwad State Indian
Reserve
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 643
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Police A
Force
194 K.R. Rammurthi Civilian Indian
195 Adil Rohengtan Irani Civilian Indian
B
196 Ashish Ankush Patil Civilian Indian
197 Nitin Digamber Kakade Police Indian
(Sub-
Inspector)
198 Naushir Firoz Sanjana Civilian Indian c
199 Jagdish Waman Gujran Civilian Indian
200 Nitin Satishkumar Minocha Civilian Indian
201 Sajesh Narayan Nair Civilian Indian
D
202 Rakesh Harischandra Civilian Indian
Chawan
203 Amit Raghnuath Khetle Police Indian
(Constable)
E
204 Ashok Laxman Pawar Police Indian
(Naik)
205 Arun Sarjerao Mane Police Indian
(Naik)
F
206 Saudagar Nivrutti Shinde Police Indian
(Constable)
207 Shankar Shamrao Pawar Police Indian
(Constable)
NARIMAN HOUSE G
208 Prakash Rawji Surve Civilian Indian
209 Bablu Rajsing Yallam Civilian Indian
210 Sanjay Laxman Katar Civilian Indian
H
644 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 211 Vijay Ankush Falke Civilian Indian
212 Ashok Babu Sunnap Civilian Indian
213 Pradesh Prakash Perekar Civilian Indian
214 Anil Sakharam Varal Civilian Indian
B
HOTEL OBEROI & HOTEL TRIDENT
215 Shabbir Tahirna Naruddin Civilian Indian
216 Amardeep Harkisan Sethi Civilian Indian
c 217 Sidharth Rajkumar Tyagi Civilian Indian
218 Drrissuz Sobizutski Civilian Poland
219 Linda Oricistala Rangsdel Civilian American
D
220 Alisa Micheal Civilian Canadian
221 Andolina Waokta Civilian American
222 Helan Connolly Civilian Canadian
E
223 Jahid Jibad Mebyar Civilian Jordanian
224 Shi Fung Chen Civilian Japanese
225 Reshma Sanjay Khiyani Civilian Indian
F 226 C.M. Puri Civilian Indian
227 Capt. A.K. Singh Security Indian
Force
228 Camando Manish Security Indian
G Force
229 Apurva Natwarlal Parekh Civilian Indian
230 Dinaj Puranchand Sharma Civilian Indian
231 Chandresh Harjiwandas Civilian Indian
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 645
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Vyas
A
232 lmran Jan Mohd. Merchant Civilian Indian
233 Appasaheb Maruti Patil Civilian Indian
234 Anil Bhaskar Kolhe State Indian
·-
B
Reserve
Police
Force
235 Gangaram Suryabhan Civilian Indian
Borde c
236 Ranjit Jagganath Jadhav State Indian
Reserve
Police
Force
D
237 Joseph Joy Pullara Civilian Indian
238 Virendra Pitamber Semwal Civilian Indian
SCHEDULE II E
LIST OF ACCUSED PERSONS
SR. No. NAME
ACCUSED ON TRIAL
F
1 Mohammad Ajmal Mohammad Amir Kasab @ Abu
Mujahid
2 Fahim Arshad Mohammad Yusuf Ansari @ Abu
Jarar @ Sakib @ Sahil Pawaskar @ Sameer
G
Shaikh@ Ahmed Hasan
3 Sabauddin Ahmed Shabbir Ahmed Shaikh @ Saba
@ Farhan @ Mubbashir@ Babar@ Sameer Singh
@ Sanjiv @ Abu-Al-Kasim @ lftikhar @ Murshad @
Mohammad Shafik@Ajmal Ali H
646 SUPREME COURT REPORTS [2012) 8 S.C.R.
A ACCUSED WHO DIED IN COMMISSION OF OFFENCE
1 Ismail Khan @Abu Ismail
2 lmran Babar @ Abu Aqsa
B 3 Nasir @ Abu Umar
4 Nazir @ Abu Omair
5 Hafiz Arshad @ Abdul Rehaman Bada @ Hayaji
6 Abadul Reheman Chhota @ Saqib
c
7 Fahad Ullah
8 Javed @ Abu Ali
9 Shoaib @ Abu Soheb
D
WANTED ACCUSED
1 Hafeez Mohammad Saeed @ Hafiz @ Hafiz Saab
2 Zaki-Ur-Rehaman Lakhvi
E
3 Abu Hamza
4 Abu Al Kama @ Amjid
5 Abu Kaahfa
F 6 Mujjamil @ Yusuf
7 Zarar Shah
8 Abu Fahad Ullah
9 Abu Abdul Rehman
G
10 Abu Anas
11 Abu Bashir
12 Abu lmran
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 64 7
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
13 Abu Mufti Saeed A
14 Hakim Saab
15 Yusuf
16 Mursheed B
17 Aakib
18 Abu Umar Saeed
19 Usman
c
20 Major General Sahab - Name not known
21 Kharak Singh
22 Mohammad lshfak
23 Javid Iqbal D
24 Sajid lftikhar
25 Col. R. Saadat Ullah
26 Khurram Shahdad E
27 Abu Abdur Rehaman
28 Abu Muavia
29 Abu Anis
F
30 Abu Bashir
31 Abu Hanjla Pathan
32 Abu Saria
33 Abu Saif Ur Rehman G
34 Abu lmran
35 Hakim Saheb
H
648 SUPREME COURT REPORTS [2012] 8 S.C.R.
A SCHEDULE Ill
DNA EVIDENCE
SR. NAME FORWARDING ARTICLES OPINION
NO. OF THE LEDER TO SEIZED
TERRORIST FSL FOR DURING
B DNA PROFILING INVESTIGATION
IN M.V. KUBER
1. Kasab Exhibit No. 658 Jacket (Art. The DNA profile
186 Colly.) from the control
c sample matched
with the DNA
profile from sweat
detected in jacket
- report is Exhibit
No. 205-F
D
2. Abu Ismail Exhibit No. 216 Blanket (Art. The DNA profile
184 Colly.) from the control
sample matched
with the DNA
profile from sweat
E
detected on
blanket- report is
Exhibit No. 205-B
F 3. lmran Babar Exhibit No. 683 - -
4. Abu Umar Exhibit No. 683 Monkey Cap The DNA profile
(Art.187 Colly.) from the control
sample matched
G with the DNA
profile from sweat
detected on
Monkey cap -
report is Exhibit
No. 205-E
H
MOHAMMED .A.JMAL MOHAMMAD AMIR KASAB @ABU 649
MUJAHID v. STATE OF MAHARASHTRA [AFTAB ALAM, J.]
Jacket (Art. 186 The DNA profile A
5. Abu Omair Exhibit No. 671
Colly Colly.) from the control
sample matched
with the DNA
profile from sweat
detected on
jacket - report is B
Exhibit No. 205-G
6. Abdul - - -
Rehman
Bad a c
7. Abdul Exhibit No. 665 Israeli Cap (Art. The DNA profile
Rehman 187 Colly.) from the control
Chhota sample matched
with the DNA D
profile from sweat
detected on Israeli
cap - report is
Exhibit No. 205-D
E
8. Fahadullah Exhibit No. 666 - -
9. Abu Ali Exhibit No. 671 Handkerchief The DNA profile
Colly. (Art. 206) from the control
sample matched F
with the DNA
profile from sweat
detected on
handkerchief-
report is Exhibit
No. 205-C G
10. Abu Soheb Exhibit No. - -
671 Colly.
H
650 SUPREME COURT REPORTS [2012] 8 S.C.R.
A CHANDRAMAULI KR. PRASAD,J. 1. I agree.
2. However, I wish to add few words of my own.
3. In all human affairs absolute certainty is myth. Prof. Brett
B puts it, "all exactness is fake". Ordinarily, E.L.Dorado theory of
"absolute proof' being unattainable, the law accepts for it
probability as a working substitute.
4. Hardly one come across a case, where Court does not
resort to "certain probability" as working substitute for proof
C beyond all reasonable doubt. However, in the case in hand,
from the evidence, oral and documentary, reference of which
have copiously been made in the judgment by my noble and
learned Brother Aftab Alam, J. make me believe that "absolute
certainty"may not necessarily be a myth or fake in all cases and
o can be a reality.
5. The present case is an exception. Here, I am more than
certain that the planning and conspiracy to commit the crime
were hatched in Pakistan, the perpetrators of crime were
E Pakistani 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.
R.P. Appeals dismissed.
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