REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1899-1900 OF 2011
MOHAMMED AJMAL MOHAMMAD
AMIR KASAB @ ABU MUJAHID … APPELLANT
VERSUS
STATE OF MAHARASHTRA … RESPONDENT
WITH
CRIMINAL APPEAL NO.1961 OF 2011
STATE OF MAHARASHTRA … APPELLANT
VERSUS
FAHIM HARSHAD MOHAMMAD YUSUF
ANSARI & ANOTHER … RESPONDENTS
AND
TRANSFER PETITION (CRIMINAL) NO.30 OF 2012
RADHAKANT YADAV … PETITIONER
VERSUS
UNION OF INDIA & OTHERS … RESPONDENTS
J U D G M E N T
Aftab Alam, J.
1. The appellant, Mohammed Ajmal 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 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 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 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.
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.
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 Addl. Sessions Judge, Greater Mumbai in Sessions Case
No. 175 of 2009). The other two accused were acquitted of all charges. 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.
4. The judgment by the trial court 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 came to the High Court from the judgment and
order passed 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 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 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 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 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.
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 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 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 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 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 in furtherance of the common intention he shared
with one Abu Ismail (deceased accused no.1) and the rest were victims of
the conspiracy to which he was a party along with the nine (9) dead accused
and thirty-five (35) other accused who remain to be apprehended and brought
to court.[2]
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 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 Abu Ismail, was a part. So far as the attack on Mumbai is
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 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 prosecution by
beginning with the appellant’s confessional statement.
THE RECORDING OF THE CONFESSIONAL STATEMENT:
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, Addl. Chief
Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, before 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.
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 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 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 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 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, 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 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.
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 brought to her and in
reply he said that he wanted to make a confessional statement. She asked
for which 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 making the confession came to him when he was arrested by the
police. He added that he had absolutely no regret for 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 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 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 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
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 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 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 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 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 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 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 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 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 prosecution that
was speaking through his mouth. We, therefore, scan the confession as it
is, in full, unabridged and unadorned.
THE KASAB NARRATIVE:
Family background:
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
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 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 addresses.
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
Yar Chishti, Pathankot, district Okara, Pakistan. He also named a fourth
paternal uncle, younger to his father, who lived with the appellant’s
father.
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.
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 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. 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 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 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
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
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 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 going from door to door under the name of Jamaat-ul-Dava,
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 were fighting for the liberation of Kashmir and they,
too, should do something for their people. When they were working at 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
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 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 “Daura-E-Suffa, Markaz-e-Toiba,
Muridke” written on it. He gave them directions for Muridke 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, 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.
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 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 course of the training, Ustad Abu Kafa (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 (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
Kafa told them that Abu Umar Sayeed arranged the training camps of Lashkar-
e-Toiba.
[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 Sayeed exhorted them by saying that all
Mujahedeens must fight for the independence 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 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
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 “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 person at the gate and were allowed into
the office. The person in the office wrote down detailed information
concerning them 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 physical
exercises and practiced running and climbing over mountains. They were also
given training in dismantling and assembling ‘Kalashan’, rifles and pistols
and taught how to fire these weapons.
[Here the magistrate asked him the meaning of ‘Kalashan’. 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.
Further Training:
31. Kasab told the magistrate that after the Daura-e-Amma training a
Mujahid could go home if he so wished; alternatively, he could remain for
three months of ‘Khidmat’.
[The magistrate asked him what ‘Khidmat’ 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].
32. He said that he remained to do ‘Khidmat’ of the Mujahedeens. The
‘Ustad’ for the trainees who came there during Kasab’s ‘Khidmat’ were Abu
Abdul Rehman (wanted accused No. 9), Yusuf (wanted accused No. 15), Abu
Anas (wanted accused No. 10) and Abu Bashir (wanted accused No. 11). Kasab
did ‘Khidmat’ 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 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 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 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 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 ‘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 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 and a half
months in course of which they were turned into solid ‘Jihadis’. 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 satellite phones, GPS
systems and map-reading. The physical 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 Daura.
36. During that training, a person unknown to Kasab visited the camp. At
that time, Ameer Hafiz Sayeed, Zaki-Ur-Rehman Lakhvi and Kafa were present
there. Ameer Hafiz Sayeed and Zaki-Ur-Rehman Lakhvi embraced the visitor,
and ‘Ustad’ Abu Muavia and Abu Hanzala saluted him in soldier style. Kafa
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 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 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.
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 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, Kafa
and Abu Al-Kama. The 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.
39. Ameer Hafiz Sayeed selected them and gave them new names. He named
Kasab ‘Abu Mujahid’ and Imran 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 ‘Bada’
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, were similarly given
pseudonyms by Hafiz Sayeed.
40. On the same day in the evening they were taken to the office of
Baitul Mujahedeen.
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, 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 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.
43. Abu Kafa and Imran (wanted accused No. 12) were 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 in 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 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 mohalla. It was there
in the month of September, 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’ 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 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 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’ 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’ 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, 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 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 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 Ameer Hafiz 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’.
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 Imran Babar, everyone shot the target. Ameer Hafiz Sayeed rebuked
Imran Babar severely. Major General Saab, too, told Imran Babar to practice
shooting 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 he had destroyed the target entirely. He told the others that
they 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 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 Ameer of 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, 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.
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 ‘Buddiya’ meant a
pair].
51. The Buddiyas were: 1. Kasab & Ismail Khan; 2. Imran Babar & Nasir; 3.
Soheb & Nazir Ahmed; 4. Hafiz Arshad alias Hayaji & Javed; and 5. Abdul
Rehman (Chhota) & Fahadullah.
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
that Hindustani boat. He added that the “maali halat” of Hindustan was
based on “videshi sailaniyon”. Therefore, in order to weaken the “maali
halat” of Hindustan it was necessary to attack, among other places, those
places frequented by “videshi sailaniyon”.
[At this point the magistrate interrupted to ask the meanings of “maali
halat” 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 “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 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
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 RDX bombs around their targets. The
bomb blasts would 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 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 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 easily successful in their mission. And the threads on their wrists
would deceive the police.
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 would do the firing at Hotel Taj; Fahadullaah and
Abdul Rehman (Chhota) at Hotel Oberoi; Imran 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 RDX bomb under the driver’s seat in the taxi; Nazir Ahmed
and Javed would 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 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.
56. Ameer Hafiz said Abu Hamza would teach them how to plant RDX bombs
and how to cause blasts.
57. Ameer Hafiz Sayeed, Zaki-ur-Rehman Lakhvi, Muzammil alias Yusuf, Abu
Al-Kama, Abu Umar Sayeed, Kafa, 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 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. Kafa used Google Earth on a laptop to show
them how to go from Badhwar Park in Mumbai 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 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 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 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 Muzaffarabad. There they practiced how
to take position and fire with Kalashans. They were also taught how to make
the tiffin bomb from RDX, 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 Imran 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, 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 them to Karachi
city by train and there they went to a house in Azizabad mohalla. Lying in
the house was an Urdu magazine 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 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 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. Ismail’s ID card
described him as Naresh Verma son of Vilas 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 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 “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 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
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 Imran Babar would make them repeat the
names on their ID cards. Of them, Imran 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 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 house for almost a month and a half. On November
18, Kafa left, taking Nasir and Nazir Ahmed with him.
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 Shah, Abu Hamza, Kafa, Nasir and
Nazir Ahmed were already present there. Zaki-ur-Rehman Lakhvi had made
Ismail Khan the ‘Ameer’ 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) and eatables.
[The magistrate asked what “Aslaha” is. Kasab replied: weapons].
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 Indian
currency. They divided it between themselves. All the other ‘buddies’ were
also given Indian money. Then Zarar Shah 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 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 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 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 “chourai” also noted in his
diary. 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 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 batteries
along with a charger. He also gave each of them an RDX 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 their goods and cleaned and serviced the “Kalashan”
and the pistol; put thirty (30) rounds in each magazine of their “Kalashan”
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 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.
71. At night, Abu Hamza and Kafa 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.
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 Kafa 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 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 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 and Malabar
Hill. Zaki-ur-Rehman instructed them to tear up the maps after reaching
their destinations. Thereafter, Zaki-ur-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 so that it would sink into the 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 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 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 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.
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 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].
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 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 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 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 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, with the help
of GPS and the “tul” and “chourai” that were given to them, and with the
assistance of Amarchand Solanki, the Nakhva of Kuber.
77. On Kuber, Imran Babar was assigned the work of 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 Sayeed.
78. After sailing for some distance, they tied the “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 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 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 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 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 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, Javed and Nazir Ahmed began inflating
the rubber speed-boat with the pump. 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. 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 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. 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) 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, 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. Imran 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 and Javed to
place RDX 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 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 off the
boat, Kasab put on his shoes. Following Kasab and 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 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:
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. 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 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 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 small bag
containing the 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 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 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.
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.
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 in that lane. At that time heavy police firing
started and they decided to enter the opposite building (which happened to
be Cama 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 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
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 all the doors were closed from inside and the iron-grill doors
outside were also closed. They were unable to open any of the 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 the wall and came out on the road.
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
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 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 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 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 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 Ismail’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 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 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 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, 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.
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 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 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 and were asking them to switch off
the headlights.
94. Looking around, Kasab saw that the road divider on 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 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 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
opened the door of the car and got hold of his ‘Kalashan’. The police had
started firing. A policeman tried to snatch the ‘Kalashan’ 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 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 Ismail’s names to the police and the doctors and also told
them that they were 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 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 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.
THE LANDING:
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 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 attackers
themselves but by someone else among the conspirators. The 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 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 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 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 Café 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 eight had
alighted at Badhwar Park, is 0.55 nautical miles (1 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.
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 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
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 (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 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 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 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 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 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 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 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 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. Kasab told the magistrate that he
occupied the back seat of the taxi and, on the way to CST, had put the RDX
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, presently under the
marginal heading “The Vile Parle Blast”. But, for the present, the
appellant and his ‘buddy’ are on a spree 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 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 grenade[5] 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 (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
photographic (figuratively and 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 construct a broad picture of the
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 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 (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 witnesses called them
“lamboo” (tall) and “butka” or “tingu” (short).
105. Now the witnesses:
Bharat Ramchandra Bhosale (PW-49) is the Informant in 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
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 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 indiscriminately firing from AK-
47 rifles at the passengers sitting in the main hall. Many people were
lying injured in pools of 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 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. Bhosale then proceeded to give a description of the two terrorists.
He said that one of them was short, aged about 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. He was
aged about twenty-two to 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 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 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 he was fired at by the terrorists. One
of the bullets pierced through his right upper arm and struck the wall near
the table 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.
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.
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 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 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 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 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 the
appellant in the test identification parade held at Arthur Road Prison on
December 28, 2008.
115. In reply to a court question, Bhosale 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 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 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 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 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.
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
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.
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 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.
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 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 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. 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 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
professional photographers working with the Times of India group. Both of
them, caring little for their 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.
122. Sabastian Barnal 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 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 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 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 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, 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 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.
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.
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 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 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 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 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 from behind a pillar was collectively marked Ext. no.
240[10]. 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 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 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).
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.
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.
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 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 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 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 Nikon D200 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. 410-C[12] were the first photographs 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 from the main hall to platform no.1. The hand
grenade was thrown on DN Road 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-overbridge. They were lobbing 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 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-D[13]) as the photograph taken by him by using flash. He 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 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.
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 Protection Force.
At the time of occurrence, they were on duty 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 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
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 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 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
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. At that point, Jillu 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 the main hall of the local station and loading
his rifle with a magazine. Yadav asked Patil to fire at the terrorist. He
did not know that Patil’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, 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 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 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.
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. 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 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 without waiting for
him. Nardele saw Shinde proceeding in the direction of the main hall of the
main line accompanied by ASI Pandarkar[14], a police constable[15] and a
photographer[16]. 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 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 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.
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 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 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 followed by firing, and he
saw many passengers running wildly. In the meantime, Shashank Shinde came
to the Police Help 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 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 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 PI Shinde went towards platform no.7 through platform no.6 and
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 unfortunately they were not as lucky as Pandarkar. They succumbed
to their injuries.
142. In the course of his deposition Pandarkar was shown the three (3)
photographs collectively marked Ext. no. 239. He 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 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 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 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 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
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 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 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 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 before the court that the recording on the DVR is stored
for a period of seven days. At the end of the seventh day the first 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 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 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-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.
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 Bhosale (PW-49), PSI Khandale and
other policemen went towards the main hall of the main lines. She 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
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 in getting
back on his feet. At that time, she saw both the terrorists proceeding in
the direction of the local railway 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.
150. Now, some of the passengers:
Natwarlal Gigaji Rotawan (PW-50) and his daughter Devika Natwarlal
Rotawan, aged about ten (10) years, (PW-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 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 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.
151. Natwarlal 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 remained bedridden for four to six (4-6) months. When
she 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 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 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 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-servant, lost her six
(6) year 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 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 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 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 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, Saudagar was asked to
identify the appellant from among the three (3) accused in the dock. He
identified the appellant as 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 In[18]: Seven (7) dead and ten (10) injured[19]
159. Kasab and Abu Ismail were seen exiting CST via the foot-overbridge
and coming down the bridge in the evidence of Vernekar (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 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
Badruddin Tayabji Marg runs along the back of its premises. The
prosecution, with the aid of eleven (11) eye-witnesses, has traced
practically every step taken by Kasab and Abu Ismail 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.
160. Bharat Budhabhai Waghela (PW-103) worked as a Safai Kamgar with
Voltas. 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
Waghela (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
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 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. He heard his brother cry out. He saw
the lamboo 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 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, 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 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.
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 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 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 a hospital servant, Hira Jadhav. She was
immediately removed to the casualty ward on the ground floor of the
hospital. Kulathe 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. 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.
165. She further stated before the court that the noise of 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.
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 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 him.
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 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 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 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 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.
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 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 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 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.
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, Shrivardhankar
went to the Urs at the saint’s Durgah (shrine), situated behind Metro
Cinema. He left the Durgah at 10.30 PM and proceeded to CST via the Metro
subway and St. Xavier’s College to catch a train home. On 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
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 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 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. 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,
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]
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 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. 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.
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 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 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”). Therefore, 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 asked him the way
out from the hospital. Tikhe told them that there was only one staircase
that alone could be used to exit 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. 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 Kailash (PW-111), was also with the policemen and he
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.
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 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 and the
officers were also injured by the second explosion and the firing.
178. At this point, Tikhe came down to the second floor. He was
accompanied by two policemen and by Kailash. One of these policemen went
further down but the other stayed with 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 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 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 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 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 terrace[22]. There, he had
an encounter with the two terrorists who were at that time on the terrace
of the building, holding Tikhe there.
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 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 Kailash (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 and then fired over his head towards the terrace.
That forced the terrorists to go back to the terrace. Taking advantage of
the situation, Tikhe came down to the sixth floor landing. In the 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 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 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 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 thrown, which caused injuries to
almost all officers who were present there, including Date. The injured
police officers, policemen and staff members of Cama Hospital were asked to
go down. More (killed) could not go down because he was badly injured and
unconscious. Police constable Khandekar (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. 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 pursue them because of his leg injury.
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 below armpit, and in his throat, right knee and left ankle.
Cama Out[23]: 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 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 Ismail coming out of Cama Hospital from its
front side on 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 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 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 information had arrived by then that the
terrorists had reached the terrace of Cama 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 ammunition.
190. Returning to the scene of firing, they decided to go to the front
gate of Cama Hospital (instead of going to the back side), expecting the
terrorists to exit the hospital from its main gate. Kadam stated that he
was accompanied by PI Thorawade (PW-128), PSI Shelke (PW-141), and police
constables Utekar and Rathore. Constable Gawade was driving the Bolero
vehicle (called Peter-I[26] Azad Maidan) in which they came there. The
vehicle was parked on the left side of the road facing Metro junction and
they took position by the side of the vehicle.
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 ‘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 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 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 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 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 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 in that vehicle. The person who was sitting on the right side
was firing at the large crowd assembled at Metro junction. One policeman
and another person were injured due to firing from that vehicle.[27]
194. In the meanwhile, Kadam had remained in front of 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
lamboo and the butka fired at that car. One of them also 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 the lamboo. 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.
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 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, 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 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
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 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 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, 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 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 man went to
the vehicle and opened its right front door, pulling the driver on to the
road. He also pulled down another person 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 lamboo fellow occupied the
driver’s seat and the butka took the front left seat.
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
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 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. 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, 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
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 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 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. 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 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.
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 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.
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 from the back of the hospital. He told the assembled
officers that Date and some other police officers were lying injured on 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 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 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 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. 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 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 lamboo 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 carbine fell from his hands on the
vehicle’s floor. The terrorists continued to fire at them. By now, all the
policemen had 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 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 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.
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 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 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 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 that the
lamboo was six (6) feet tall, of strong built and fair complexion, and aged
twenty-two to twenty-five (22-25) years. 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. 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 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 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 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 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 that the lamboo had pulled Salaskar and the appellant had
pulled 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 (jacket). He further 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 ROBBERY[29]:
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
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 (Chhota) and Fahadullah, 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 Inox
multiplex, which is a few minutes’ walking distance from the Oberoi. When
Ajgaonkar called him on the telephone, Umashankar asked him to come to Inox
and take him away from there. Ajgaonkar contacted Arasa and asked him to
come with his car so that they could go to Inox 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 Inox with
Arasa driving, 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.
215. They reached Rajani Patel Road, Nariman Point, at 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 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 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 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
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, when 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 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 appellant sat on the front left seat. The taller
fellow, however, 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 appellant. Thereafter,
both of them drove away in the Skoda car. The terrorists proceeded towards
Inox theatre.
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 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 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 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 SEO and two panchas.
VINOLI CHOWPATY[30]: ONE DEAD, ONE INJURED
221. Kasab and Abu Ismail along with eight (8) others (the dead accused)
were seen landing on the shore of Mumbai on 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 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 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.
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
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 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. 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.
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 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 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 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 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 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. 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 assailant. Tukaram Ombale and
Govilkar were injured by shots from the AK-47 rifle. Other members of
Ombale’s and Govilkar’s 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 PI Mali, PI Sawant
(PW-31), PI 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, were sent to
hospital in the Peter Mobile Van. PI 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.
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 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 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. Station diary entry was also made
in regard to this information.
229. The FIR of Kadam was recorded by PI Sawant at 2.10 hours, giving rise
to CR no. 305/2008 (later converted into DCB CID CR no. 182/2008). The FIR
was shown to him in the 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 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.
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.
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 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 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
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 as being the
same AK-47 rifle with which the appellant had fired at the deceased Tukaram
Ombale. He also identified the other 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.
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 (Article 16) as the same two pistols seized from the place of
occurrence by PI 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 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 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.
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.
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
PI Mali, he arrived at Chowpaty in front of Ideal Café for nakabandi around
00.05 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, 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 (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 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 unarmed policemen proceeded to tackle a
desperate terrorist armed with an AK-47 rifle and a pistol.
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. Govilkar and Tukaram Ombale attempted
to catch hold of the weapon. The terrorist fell down on the road and
started firing at them while lying down on the road. Both Govilkar and
Tukaram Ombale sustained injuries from the firing. Tukaram Ombale was
seriously injured. Govilkar 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 fallen terrorist with lathis and it
was only then that he was brought under control and could be disarmed. The
AK-47 rifle was snatched away by Govilkar and other policemen. Govilkar
could see the terrorist clearly in the street light. He claimed that he
could identify the terrorist and he identified the appellant as the
terrorist who was holding the AK-47 rifle and who had fired at him and ASI
Tukaram Ombale. Govilkar was then shown AK-47 rifles (Articles 10 and 12).
He identified Article 10 as the AK-47 rifle that the appellant was holding
and from which he had fired at them.
243. Govilkar further stated before the court that the 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.
244. Govilkar 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 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, 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-
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 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 Govilkar: the arrival of the Skoda car at the
nakabandi at about 00:30 hours on November 27, 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 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, Kadam and other policemen
who were trying to approach him. The bullets missed Bavthankar and 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) 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
Ombale, API Sanjay Govilkar and other policemen. Ombale and Govilkar had
both been shot and injured by this person. The other policemen, who were
with Govilkar and Ombale, disarmed and apprehended him. Bavthankar told the
court that he could identify the person sitting on the left front seat of
the 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. Bavthankar further stated before the court that, in the course of
inspecting the car, the Bomb Detection and Disposal Squad (BDDS) 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 BDDS removed the hand
grenade and proceeded towards Girgaon Chowpaty. Bavthankar told the court
that he could identify the AK-47 rifle found in the leg space of the car.
Articles 10 and 12 were shown to the witness. He identified Article 12 as
the AK-47 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.
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. Bavthankar
further 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.
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 (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 PI Sawant (PW-31)
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 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 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 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-47 rifle and the magazine were issued to Ashok Kamte, Additional
Commissioner of Police on 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.
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
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 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.
VILE PARLE BLAST: TWO DEAD, THREE INJURED
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 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 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. 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 Shaikh and Laxminarayan
Goyal[32] 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 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 and of the passenger that on that chaotic
night in Mumbai, when death seemed to be lurking around every corner, he
had thought 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 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 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.
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 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, was called by his
friend Irshad Ahmed Shaikh (PW-169) on his mobile at about 10:00 PM on
November 26, 2008. Irshad 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 licence for renewal had not
brought it back and added that in view of all the disturbances in the city
it was good that he (Irshad Ahmed Shaikh) would not be driving on that
night. At this Irshad, asked him why, in that case, was he proceeding to
Kandivali with a passenger in his taxi? Umar told him that it was only
because 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, Irshad 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 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 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 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
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 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 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, 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 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
appellant.[36] We, therefore, see no difficulty 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), 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.
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. He urged that, for the purpose of this
appeal, the court need 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 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.
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
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 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 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) 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 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 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 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 (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 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. 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 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 to see what the prosecution has to offer
by way of evidence of 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 trial.
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 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 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.
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 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 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
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 Café. They were followed by Abdul
Rahman ‘Bada’ @ Hajazi (deceased accused no.5) and Javed @ Abu Ali
(deceased accused no.8) who went to Hotel Taj by taxi. After them, Imran
Babar @ Abu Aqsa (deceased accused no.2) and Nasir @ Abu Umar (deceased
accused no.3) went to Nariman 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.
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
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
Sunil 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
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 Café: eleven (11) dead and twenty-eight (28) injured and the
Mazgaon blast: three (3) dead and nineteen (19) injured
273. Nazir (deceased accused no.4) and Shoaib (deceased accused no.9)
launched an attack on Leopold Café with grenades and gunfire from AK-47
rifles and left it within minutes, leaving behind eleven (11) dead (of whom
two (2) were foreign nationals) and twenty-eight (28) injured (of whom 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 directly to the Hotel by taxi from Badhwar Park.
274. Nazir and Shoaib were carrying two RDX bombs, one of which they had
planted in the taxi they took from Badhwar Park to Leopold Café.[38] The
bomb in the taxi exploded at about 10:30 PM while it was going through the
Wadi Bunder Road in the Mazgaon Area of the city, killing its driver,
Fulchandra Ramchandra Bind, and its two passengers, Zarina Shamsuddin
Shaikh and her daughter Reema Mohammad Rabiul Shaikh (the mother-in-law and
wife, respectively, of Mohammad Shaikh (PW-176)) and causing injuries to
nineteen (19) people on the road.
275. The other RDX bomb they planted while on way from Leopold Café to
Hotel Taj, in Gokul Wine Shop Lane behind Hotel Taj, near Gokul Restaurant
in front of the State Bank of 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
276. Abdul Rahman ‘Bada’ (deceased accused no.5) and Javed (deceased
accused no.8), on reaching Hotel Taj, first put their RDX bomb near a tree
at a distance of about fifty (50) metres from the porch of the New Taj
Hotel. This bomb, too, did not explode and was recovered and seized along
with the bomb planted by the Leopold-team under the Panchnama Ext. no. 736.
They then entered the lobby of the hotel and started 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, they
proceeded to the sixth floor where they took Kuttalam Rajgopalan
Ramamoorthy (PW-184) into captivity. Ramamoorthy was the non-Executive
Chairman of ING Vysya Bank[40] and he had gone to Mumbai in connection with
a board meeting of one of the companies. He was staying at Hotel Taj Palace
in Room no.632 on the sixth floor.
277. Abdul Rahman ‘Bada’ and Javed also took four employees of the hotel
as hostages, namely, Adil Rohinton Irani[41] (PW-188), Sunil Jadhav (PW-
224), Rajendra Bagade and Swapnil. In room no.632, Abdul Rahman ‘Bada’ and
Javed were joined by Nazir and Shoaib, coming from Leopold Café. 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 Adil’s 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 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
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. 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 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 (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 of various kinds to thirty (30)
others (of whom five (5) were foreign nationals).
Nariman House: nine (9) killed and seven (7) injured
278. Imran 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 near Nariman House they first planted an RDX bomb at the
Express Petrol Pump on SBS Road, Colaba. From there they proceeded to
Nariman House, where they planted the second RDX bomb near the staircase on
the ground (parking level area).[43]
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 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 time of the occurrence on November 26,
2008.
280. On the date of the occurrence there were four guests, two males and
two females, staying with the Holtzberge couple 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 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 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 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 Station.[44]
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.
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 to use them as bargaining chips to start some sort of negotiation
with the Indian authorities but, when they were 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 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 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 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 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 part of the judgment. From
Nariman House the two terrorists, Imran Babar in 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 Robinovich (a Mexican citizen, 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 further not to disclose the number of hostages
taken by them but to persuade the Indian authorities to stop the operation
by 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, Imran Babar also engaged
in dialogues with India TV, a popular news 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, Imran Babar @ Abu Aqsa
and Nasir @ Abu Umar, were finally killed 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.
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
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 saw them firing in
Tiffin Restaurant. At that time 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 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
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 Bengalorkar (PW-212).
They threatened them that they would kill them if they tried to run away.
Then they 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 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
Bengalorkar 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. Bengalorkar entered the lift, as
bidden by the terrorists, 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.
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 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 Commandos headed by Colonel
Rathi and Lt. Colonel Sharma in the final encounter with the terrorists.
Before Fahadullah and Abdul Rahman ‘Chhota’ were killed, 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:
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:
293. Exhibit No. 744
1. Seven (7) magazines of black colour. Of them, six (6) contained live
rounds and one (1) was empty
2. One (1) cotton bag containing one hundred and thirty-two (132) live
cartridges
3. Five (5) hand grenades
4. One (1) bullet bayonet
294. Exhibit No. 746
1) One hundred and fifty (150) pistol empties
2) Six (6) big empties
3) Twenty-eight (28) bullets
4) Ten (10) small empties
5) Twelve (12) big empties
6) Five (5) bullets
7) One (1) grenade pin
8) One (1) small empty
295. Exhibit No. 751
1. Three (3) empties
296. Exhibit No. 752
1. One (1) pistol with magazine
2. One (1) pistol with empty magazine
297. Exhibit No. 757
1. One (1) tin box of size two by four (2x4) inches of explosives
2. Seven (7) empties
298. Exhibit No. 760
1. Four (4) AK-47 (damaged) rifles – one (1) rifle was with magazine
2. Eight (8) magazines of AK 47
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
6. Six (6) 7.62 mm cartridges
7. One (1) 7.62 mm empty
299. Exhibit No. 763
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 rounds and another magazine contained
two (2) live rounds.
300. Exhibit No. 910
1. Twenty-one (21) empty cartridges
2. Three (3) live cartridges
3. Six (6) metal pieces
301. Exhibit No. 1125
1. One (1) pistol manufactured by Khyber Arms 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
3. Twelve (12) live cartridges
4. Two (2) bayonets
302. The seizure Panchnamas from the other venues of 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, 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 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.
304. The prosecution has documented the episodes at Leopold Café, 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 and his
dead companion Abu Ismail.
305. In regard to Leopold Café, 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 (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.
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 Adil Rohintan Irani (PW-188), 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 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 examined nine (9) witnesses
of whom Kazi Zakir Hussain (PW-239), Kamal Liladhar Singh (PW-201),
Rambuval Chandrapati Yadav (PW-202) and Hanmant Vishnu Bhandalkar (PW-200)
are substantive eye-witnesses. Another substantive witness is Mohd. Salim
Harharwala (PW-206), whose parents, as we have seen above, succumbed to
shots fired by the terrorists.
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 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 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) 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 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 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 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 Café and then to the Taj
Hotel, and the other to the Oberoi Hotel. Leopold Café is a highly popular
eating and drinking establishment, frequented not only by Mumbaikars but
also by domestic and international tourists in large numbers. The Café is
open to the pavement, and it is known as a place where one 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 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 Café
had a dual purpose. First, the killing of wealthy and powerful Indians and
foreigners 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] there; this would, they
believed, enable them to negotiate with 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 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 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 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 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 associate, Abu
Ismail. The real and far more tangible evidence of conspiracy is yet to
unfold in the following part of the judgment.
KUBER:
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 at Vinoli Chowpaty first
came to light when he made a statement at Nair Hospital at 01:30 hours on
November 27, 2008, disclosing his name, age and address and those of his
accomplice, the dead Abu Ismail.
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 PI 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, PI Prashant Kashinath Marde of CB-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
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:
“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 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 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 the very Indian boat and have left the
said Indian boat in the sea. My nine associates and I with the rifles,
bombs and grenades bags boarded the rubber 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 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)
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
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 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 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]
321. “The abandoned boat” was undeniably an Indian fishing boat called ‘MV
Kuber’. It was registered with the port authorities at Porbandar, Gujarat,
and bore the registration no. PBR2342. Its registered owner was one
Heeralal Masani of Porbandar.[48]
322. Deepakkumar Vishwanath Dave (PW-46), who was 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 its Tandel was Amarsingh
Solanki.
323. Vinod Babulal 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 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 the Kuber. The Tandel of Maa only said that the 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 him to come over to Mumbai. He went to Mumbai
on December 2, 2008, and found the boat anchored at Melat 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.
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, Marde took him in his custody. Marde brought the appellant to the
office of the DCB-CID, Unit 3, Lower Parel, 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
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
Panchnama, namely, Pravin Ashok Hargude and Bhavesh Mahadeo Takalkar (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 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 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 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 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; IMEI no.352884-00-054152-6; 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-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.
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 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
2) Fourteen (14) blankets
3) Two (2) shawls
4) One (1) mattress
5) One (1) empty bottle of cold drink*
6) One (1) scarf used at the time of Namaj
7) Four (4) caps
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”)
10) One (1) shirt[49]
11) Fifteen (15) jackets
12) Seven (7) tooth brushes
13) Shaving razors
14) One (1) tube of shaving cream*
15) One (1) tube of tooth paste *
16) One (1) empty sugar bag*
17) One (1) empty paper bag of wheat flour*
18) Two (2) air pumps
19) Four (4) packets of detergent powder (Brand name ‘PAK’)*
20) Empty containers of Nestle milk powder*[50]
21) Eight (8) cans of oil having a capacity of fifty-five (55)
litres each (One of the cans had markings of ‘Gulf’ and
‘Karachi’)
22) Five (5) barrels of diesel (One of them was empty)
23) Five (5) containers of colour spray
24) One (1) dagger
25) One (1) knife
26) One (1) pair of scissors
27) Three (3) boat covers made of tarpaulin
28) Floor cleaning brush (made in Pakistan)*
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
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
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 side
4) Pieces of silver foil used to consume drugs
5) One match-box with the mark ‘Hockey’ of Fazal Sons match
industries, Pakistan
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 Urdu
328. It may be added here that Vinod Babulal Masni (PW-43), on being shown
the satellite phone, the GPS and the other articles recovered from Kuber
and seized under the two Panchnamas (Ext. nos. 138 and 182), told the court
that those 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 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 roster under
the heading ‘24 Hours – Entire Journey’. The guard roster is made in the
following manner:
Fahadulla + Saqib + Sohaib – morning 6 to 8
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 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:
1) Biscuit (Candy + Bakery)
2) Sewayyan[51] fine
3) Flour red
4) Drum (for luggage with lock)
333. On the left side there is another list of the following:
1) Phone number of this place
2) Satellite number of this place
3) Photocopies of maps
4) SIMs for mobile sets
5) T-T Pistol 2 in number
6) Mineral water Aquafina
7) Dates good (quality) 10 kilo
8) Current store charger
9) GPS or navigator
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)
2) Civil Boat Bhai log (Brothers)
3) Navy Boat Yaar log (Friends)
4) Navy Ship Yaar logon ka group (Group of
friends)
5) Engine Machine
6) Madad (help) Maal (Goods)
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.
336. And below that there is a reminder that the satellite 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
2) Magazine – 8 in number
3) Grenade – 8 in number
4) GPS – Group – 1
5) Dagger – 1 in number
6) Additional rounds
7) Mobile + Batteries
338. On the next two pages there are some figures indicating degrees,
minutes and seconds.
339. On the next page, there is the number 23270972879217 written on the
top and below it the names of the following places in Mumbai:
Qulaba Cuff Parade Macchlimaar Nagar Rajabhai
Tower Regal Chowk Nathalal Marg Nariman Point WTC
Regal Cinema.
340. On the last page there are once again some figures indicating
degrees, minutes and seconds.
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 of Investigation (FBI)[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 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 Q119, Q120, Q121, Q122,
Q123 and Q124. Q119 and Q120 were marks given by him to the satellite phone
and the GARMIN GPS device recovered from MV Kuber. Q123 and Q124 were the
other GARMIN GPS devices that were recovered from Taj Hotel. Q121 was, in
all probability, recovered from Nariman House and Q122 from Oberoi Hotel.
Q121 and Q122 were Magellan GPS devices and the data in those 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 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 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, in
court. He also identified the physical copy (“Derivative 2”) that 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
software on the basis of the waypoints retrieved from the GPS Q120.
343. Jackson said that “JALA 1” and “JALA 2” were the names used by the
user of GPS Q120. The waypoints list of Q120 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 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.
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 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 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 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 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 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.
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 secretions on those articles were subjected
to DNA profiling and, excepting Imran Babar (deceased accused no.2), Abdul
Rahman Bada (deceased accused no.5), Fahadullah (deceased accused no.7) and
Shoaib (deceased accused no.9), the rest of the six accused were connected
with various 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 from the Kuber is annexed at the end of the
judgment as Schedule No. III.
THE INFLATABLE RUBBER BOAT:
346. From Kuber, in order of sequence, we come to the inflatable rubber
dinghy on which the appellant and the other 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. At 23:00 hours on the same
day, the dinghy and the articles found in it were seized by Sub-Inspector
of Police Anil Kamble 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 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.
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.
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 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 boat.
The Yamaha outboard machine that was fitted to the rubber dinghy is of
special significance for the case.
347. Gatala (PW-30), who was a Marine Engineer and 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 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
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-
01F 8 T 411727 Y 09; and the sticker on the unit showed engine 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 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 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 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 manufacturing unit but outboard
machines were manufactured in Japan, not the US. He further stated that the
outboard 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 be more than one OBM
having the same last seven (7) digits of serial number for the same size of
machine. He further 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.
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
shown the letter Williams stated to the court that he knew Ms. Michelle
Tejeras who was the Assistant Manager (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 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:
“February 17, 2009
U.S. Department of Justice
Federal Bureau of Investigation
11000 Wilshire Blvd., 17th Floor
Los Angeles, CA 90403
Attention: Special Agent Geoffrey Maron
Re: File No. LA-252196
Dear Mr. Maron,
This letter is to confirm the conversation on February 13, 2009 between
our Yamaha representative and representatives from your location.
We have contacted Yamaha Motor Co., Ltd. regarding Yamaha Outboard
Enduro 40, model E40JMHL serial # 1020015 to confirm the following:
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 Corporation, I am
authorized to provide this information.
Sincerely,
Michelle Tejeras
Asst. Manager-Service Support
Cc: SR# 1-9130852.”
THE PINK-COLOURED FOAM, THE TERRORISTS’ SIGNATURE:
350. From the rubber dinghy that touched Mumbai’s shore 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 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 connects the appellant to the other eight
terrorists. As we 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 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 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-47 rifle, Abu Ismail, the dead companion of the
appellant Kasab, had put a 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 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. 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, 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!
353. From CST, the appellant and his dead associate had gone to the
terrace of the Cama 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 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. One of the articles seized from the terrace of the Cama
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 c.m. in size”.[53]
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 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, 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 metal container
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 mechanism electronic timing device, one white paper 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:
“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 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 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 Ishwar Mahadeo
Kolekar and Vaibhav Vilas Patil. In the Panchnama the bag is described as
follows:
“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 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 1½ feet in width in the bag.”
357. 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 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 in the bags that
were picked up from CST, the terrace of the Cama 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.
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
‘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]
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 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 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 support, tactical advice and guidance from them by means of mobile
phones.
361. 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.
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 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 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 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 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, 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, 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 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 landline could then be heard on
headphones or the speaker of a computer with the aid of appropriate
software. The ATS office had software called ‘Shogie’ installed in the
office computer for that purpose.
366. Kadam 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 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 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 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 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 the necessary permissions in regard to those two phone
numbers following the same procedure, Kadam 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 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.
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 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 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 Callphonex.
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 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 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 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 Corporation was situated in New Jersey. The brand name as
well as the domain name of the Corporation was Callphonex. The Callphonex
telephone number, in the month of November, 2008, until January 6, 2009,
was (201)253-1824. Al Sharif further stated before the court that they were
providing Voice 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 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 Callphonex number (which,
as noted above, was (201)253-1824 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.
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 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@yahoo.com. No specific
address was provided by Kharak Singh. He had only said that he was from
India. The mails received from Kharak Singh were replied to 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 Isfaq. On being shown a copy of the receipt of
the Moneygram, Al Sharif identified it and it was then taken 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 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).
“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;
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;
5) Copy of MoneyGram receipt dt. 27th October, 2008, and copy of
Western Union receipt dt. 25th November, 2008.
6) E-mails between Mr. Kharak Singh and Callphonex.”
376. He further deposed before the court that the last mail received by
him from Kharak Singh was on November 25, 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 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 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:
“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
payment was Muhammad Ishfaq. The sender used MoneyGram agent Paracha
International Exchange located at Road Anarkali Fayazuddin in Lahore,
Pakistan. According to MoneyGram records, Ishfaq provided an address
of Postoffice Mall Awn Teh Gujar K, Peshawer, 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 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.
The owner of Callphonex noticed that neither of the wire 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 communication,
the FBI Agent made the following observations:-
“The FBI determined that the kharak_telco@yahoo.com account was
created on October 20, 2008, via Internet Protocol (IP) address
66.90.73.125. Between October 20, 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:
IP Addresses Location
58.27.167.153 (Pakistan)
66.90.73.125 (U.S. – apparent proxy)
67.159.44.63 (U.S. – apparent proxy)
80.78.132.155 (Kuwait)
82.114.138.18 (Russia – apparent proxy)
82.114.141.99 (Russia – apparent proxy)
118.107.140.138 (Pakistan)
203.81.224.201 (Pakistan)
203.81.224.202 (Pakistan)
203.81.224.203 (Pakistan)
Singh’s Callphonex account has been inactive since 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 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 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 and their use of slang.
381. Perhaps Nizar Al Sharif’s commercial interest got the better of his
sense of discretion, or perhaps he was too naïve to see through the clear
deception. His services were thus used 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 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 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.
383. 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, 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 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 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 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.
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
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 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).
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 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. 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 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 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 /
Americas Nokia Inc. (PW-155) addressed to SA Geoffrey 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
11000 Wilshire Blvd
Los Angeles, CA 90024
In response to the FBI’s request via United States legal authority,
Nokia provides information from our records concerning the following
specific Nokia devices:
1. Nokia 1200, IMEI # 353526024049451 2. Nokia 1200, IMEI #
353526025828739
Manufactured: DongGuan, China Manufactured: DongGuan, China
Date shipped: June 28, 2008 Date shipped: June 26, 2008
Country shipped to: Pakistan Country shipped to: Pakistan
Vendor product sold to: United Mobile Vendor product sold to: I2
Pakistan (Pvt.) Ltd.
3. Nokia 1200, IMEI # 353526025842235 4. Nokia 1200, IMEI #
353526025840890
Manufactured: DongGuan, China Manufactured: DongGuan, China
Date shipped: June 26, 2008 Date shipped: June 26, 2008
Country shipped to: Pakistan Country shipped to: Pakistan
Vendor product sold to: I2 Pakistan (Pvt.) Ltd. Vendor product sold to:
I2 Pakistan (Pvt.) Ltd.
5. Nokia 1200, IMEI # 353526025933620
Manufactured: DongGuan, China
Date shipped: June 28, 2008
Country shipped to: Pakistan
Vendor product sold to: United Mobile
Further, our records reflect that at the time of shipment, I2 Pakistan
(Pvt.) Limited’s address was:
I2 Pakistan (Pvt.) Limited
2nd Typical Floor, Executive Tower
Dolmen City, Block 4, Clifton
Karachi Pakistan
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.
Sincerely,
Mary Lozano, ACP
Enforcement Manager/ Americas
Nokia Inc.
6021 Connection Drive, MS 2-5-520
Irving, Texas”
388. We have seen the mobile phones and the SIM cards 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.
THE TALKS:
389. 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 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.
390. In an early talk[55] 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 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 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 Ismail’s satellite 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.] 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 Nariman House and
the collaborators, one of the hostages, a Mexican citizen called Norma
Shvarzblat Robinovich, is brought to the phone and is threatened by the
collaborators that if she 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 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.
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 were called in to neutralize them.
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
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 ‘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.
[My friend, may Allah accept your deed. Balm has 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 rehna apni baaton mein,
apni baaton mein mazbooti paida karo. Aapne duniya ko chhoda
hai. Jannat Insha-allah iss se bahut behtar hai. Apne vaade
zaroor poore karna jo sachhe vaade hain. Hamare liye bhi dua
karna.
[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.]
TRANSCRIPTS FROM HOTEL OBEROI
Talk No. 4 (Ext. no. 979)
(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: Insha-allah, pata matlab yeh hai ki iss waqt Islam aur Kufr ka
mamla hai. Hum woh bande hain jisko Allah ne apne deen ke jahaan
ke liye bheja hai. Matlab shahadat ki maut 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 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 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.]
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!]
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.]
T-II: Insha-allah.
[God willing.]
UK: Insha-allah. Matlab Shaheed.
[God willing. What I mean is martyr.]
T-II: Insha-allah. Dua karo.
[God willing. Pray for me.]
UK-II: Unko bada maan hai Hindu bhai ko, unka maan khaak mein mila
dein.
[They have great pride those Hindu bhais. Let their pride be
trampled in mud.]
T: Insha-allah.
[God willing.]
UK-II: Sahi hai. Zikr karo Insha-allah kaamyaabi har taraf se aapki
hai. Aapki yeh kaamyaabi Allah kabool karle, theek hai. Sahi
Insha-allah, Allah-tala ne Jannat bilkul clear kar di. Aapke
liye shareer mahi hai. Insha-allah sabne jaana wahin par hai.
Jis raste se aap chal rahe ho woh himmatwala rasta hai. Insha-
allah, himmatwala kaam karna hai.
[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
strength. God willing. You have to do the courageous deed.]
T: Insha-allah.
[God willing.]
Talk No. 11 (Ext. no. 981)
(This is towards the conclusion perhaps the last minutes of Fahadullah).
T: Assalaam-Valeykum.
[Assalaam-Valeykum.]
UK: Valeykum Salaam, kya haal hai Fahadullah, mere yaar khairiyat
hai?
[Valeykum Salaam. How are you Fahadullah, my friend are you all
right?]
T: Abdul Rahman Bhaiyya Allah ko pyaare ho gaye.
[Abdul Rahman Bhaiyya has been taken away by God.]
UK: Achha, aapke paas hi hain?
[Well, is he near you?]
T: Haan jee; paas hi hain.
[Yes. He is near me.]
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.]
T: Insha-allah.
[God willing.]
UK: Haan. Allah madad karega.
[Yes. Allah will help you.]
UK: Theek hai mere yaar, himmat karo. Muquabla karo, josh se lado.
Theek hai. Dua karo, iss waqt karo, 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.]
Talk No. 12 (Ext. no. 982)
UK: Giraftaari waali shakl nahin hone deni. Yeh baat yaad rakhni
hai.
(There cannot be the eventuality of arrest. You have to remember
this.)
T: Nahin. Insha-allah, Insha-allah.
(No. God willing, god willing.)
UK: Himmat karni hai mere veer, ghabraana nahin hai, Insha-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 success.
God is waiting for you.)
T: Haan jee. Insha-allah.
(All right. God willing.)
Deception that the terrorists were Indians and were killing people to vent
the grievance of the Indian Muslims; also the attempt to involve Israel
393. (2) TRANSCRIPTS FROM NARIMAN HOUSE
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’)
UK-III: 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.]
T: Jee.
[Yes.]
UK-III: Hyderabad city ka theek hai.
[City of Hyderabad, understand.]
T: Hyderabad Deccan.
UK-III: Hyderabad city ka Hyderabad city ka hoon aur chowki ka mera
area hai.
[Hyderabad city, I am from Hyderabad city, from the Chowki area]
T: Chowki
UK-III: Tolee Chowki. Tolee Chowki.
T: Tolee Chowki theek hai.
[Tolee Chowki, all right.]
UK-III: Aur phir poochhey toh kehna Mujahedeen Hyderabad Deccan se mera
talluk hai. Theek hai.
[And if they ask further, say that you are associated with
Mujahedeen Hyderabad Deccan.]
T: Theek hai.
[All right]
UK-III: Mujahedeen Hyderabad Deccan ise hasi 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.
[Mujahedden 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 back and the
administration knocks on the head.]
T: Hukumat ki doshi policy. Hukumat peeth thapthapati hai.
[The wrong policy of the Government. The Government pats the
back.]
UK-III: Hukumat peeth thapthapati hai.
[The Government pats the back.]
T: Peeth thapthapati hai.
[Pats the back.]
UK-III: Aur prashasan jo hai sar par tole maarta hai.
[And the administration, such as it is, knocks on the head.]
T: Aur prashasan.
[And administration.]
UK-III: Sar par tole maarta hai. Uski taaza misaal Sachhar Committee ki
shifarishein, uski taaza misaal.
[Knocks on the head. Its recent example (is) the recommendations
of the Sachhar Committee.]
T: Uski taaza misaal.
[Its recent example.]
UK-III: Sachhar Committee shifarish. Jis taraf hukumat jo ye ailaan
karti hai aur darasal vajah prashasan Muslim yuvkon ko pakad
pakad kar giraftaar karti hai.
[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.]
T: Hukumat koi aur insaan karti hai.
[The Government makes another announcement.]
UK-III: Prashasan uska amal Muslim yuvkon ko giraftaar karke deta hai.
Saabit karta hai.
[(And) the administration implements it by arresting the Muslim
youth. This just shows.]
T: Muslim.
UK-III: Muslim yuvkon ko, Muslim jawaanon ko.
[The Muslim youth, the young Muslim.]
T: Nau jawaanon ko.
[The youngsters.]
UK-III: Giraftaar karke sabit karta hai.
[Makes it clear by arresting them.]
T: Haan.
[Yes.]
UK-III: Unka future barbaad karti hai. Unko ye ultimatum de denge hamra
abhi toh trailor hai abhi asal film to baaki hai. Hukumat ye
jaan le yeh trailor hai, asal film to baaki hai.
[Destroys their future. Give them the ultimatum that this is
only the trailor and the main film is yet to come. The
Government should know that this is only the trailor and the
main film still remains.]
T: Hukumat ye jaan le sarkaar ye jaan le yeh trailor hai asal film
to baaki hai.
[The Government should know, the Government should know that
this is the trailor and the real film is still remaining.]
UK-III: Yeh to abhi trailor hai.
[This is only the trialor.]
T: Yeh to abhi trailor hai.
[This is only the trialor.]
UK-III: Yeh to chhotta sa udaharan hai mein. Chhota sa example hai.
Trailor hai.
[This is only a small example, is a small example, is only the
trailor.]
T: Yeh trailor hai.
[This is only the trialor.]
UK-III: Yeh chhotta sa humne aapko dikhaya hai.
[We have shown you only this little thing.]
T: Film to abhi saara pada hai.
[The whole film is still there.]
UK-III: 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 time to come.]
T: Abhi hukumat dekhegi kya hota hai.
[The Government will see what happens now.]
UK-III: Theek hai.
[Alright.]
T: Theek hai. Theek hai.
[Alright. Alright.]
UK-III: Woh kahenge na aapka demand kaya hai. Hello.
[They will say what is your demand. Hello.]
T: Haan jee, haan jee.
[Yes jee, yes jee.]
UK-III: Jitne bhi jailon mein musalman qaid hain unko riha kiya jaaye.
Ek number.
[All the Musalmans who are languishing in jails should be
released. Number one.]
T: Saare musalman riha.
[All the Musalmans released.]
UK-III: Jitne bhi jailon mein band musalman hain unko riha kiya jaaye.
[All the Musalmans who are locked up in jails should be
released.]
T: Theek hai.
[Alright.]
UK-III: Theek hai. Number do.
[Alright. Number two.]
T: Jee.
[Yes.]
UK-III: Muslim state, Muslmanon ke hawaale kiya jaaye.
[Muslim state should be handed over to the Musalmans.]
T: State Musalmanon ke hawaale kiya jaaye.
[State should be handed over to the Musalmans.]
UK-III: Number teen. Kashmir se fauj bulayee jaaye. Unko unka haq diya
jaaye. Kashmiriyon ko unke haq diya haaye (jaaye).
[Number three. The Army should be withdrawn from Kashmir. They
should be given their rights. Kashmiris should be given their
rights.]
T: Theek hai.
[Alright.]
UK-III: 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 immediately commence
for construction of the mosque. That spot should be handed over
to the Musalmans.]
T: Theek hai. Theek hai.
[Alright. Alright.]
UK-III: Uss jagah ko musalmanon ke hawaale kiya jaaye. Israel ke saath
gathbandhan na kiya jaaye.
[That spot should be handed over to the Musalmans. There should
be no collaboration with Israel.]
T: Israel ke saath gathbandhan na kiya jaaye.
[There should be no collaboration with Israel.]
UK-III: Israel ke saath gathbandhan na kiya jaaye.
[There should be no collaboration with Israel.]
T: Jee
[Jee.]
UK-III: Hello
[Hello.]
T: Haan jee.
[Yes jee.]
UK-III: Israel ko ye ultimatum diya jaaye ya bawar [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 Musalmans and Philippines too should
stop oppressing and harassing.]
T: Israel ko.
[To Israel.]
UK-III: Philippines ki musalmanon ke upar jaatati [jyadati] bandh kiya
jaaye.
[The harassment of the Musalmans of Philippines should stop.]
T: Israel musalman ke khoon se khelna chhod dein.
[Israel should stop playing with the blood of Musalmans.]
UK-III: Ha. (Whispers: Oberoi mein dhamakon ki awwaz) Theek hai.
[Ha. (Whispers to the colleagues with him: Sound of explosion in
Oberoi. Alright.]
T: Jee, Jee.
[Jee, Jee.]
UK-III: Agar Israel uss tarah nahin karegaa toh poore… Yahi hai bus
theek hai.
[If Israel does not do like this then all this… That is it and
alright.]
T: Jee, Jee.
[Jee, Jee.]
UK-III: Yahi kehna hai. Bus yahi kehna hai.
[This is to be said. Only this is to be said.]
T: Jee, Jee.
[Jee, Jee.]
UK-III: Israel jo yeh bharat ke musalmanon ke beech mein dakhal andaazi
nahin karein.
[Israel should not interfere with the Musalmans of Bharat.]
T: Theek hai.
[Alright.]
UK-III: Theek.
[Right.]
T: Salaam-Valeykum.
UK-II: Valeykum-assalaam.
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 with some fictitious organization
called Mujaheddin, Hyderabad Deccan, is one of the most ominous and
distressing parts of the 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 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
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 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 terrorist
attack on the railway station. Their first-hand, eye-witness accounts of
the carnage added to reports in the print 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 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 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
398. (3) TRANSCRIPTS FROM HOTEL TAJ
Talk No. 3 (Ext. no. 970)
(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’)
UK: Koi masla nahin mere yaar, pareshaan nahin hona mere yaar. Aap
kaam karo, Allah ki dua se saari 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.
[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 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.]
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 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 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 the hotel.]
T: Achha.
[Very well.]
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.
[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 rooms on fire so that the Minister should burn.
And 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 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.]
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 blessing of God. I told
you to find a hammer or an opener.]
T: Nahin, nahin mila.
[It is not found.]
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 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.
(Whisper) Sabse zyada zulm karnewala Commissioner maara gaya.
[What is its purpose.]
[(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 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.]
UK: Haa, Maine kaha yahan ka Bombay ka police. …
[Yes I said of this place, of Bombay police.]
T: Haa haa Pathan hai.
[Yes yes, he is pathan.]
UK: Yeh Bombay ka Chief maara gaya.
[The Bambay Chief is killed.]
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 region, which place?]
UK: Chief maara gaya hai. ATS chief maara gaya hai.
[The chief is killed. The ATS chief is killed.]
TRANSCRIPTS FROM NARIMAN HOUSE
Talk No. 18 (Ext. no. 988)
(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’)
T: Woh toh keh raha tha do bhai surrender ho gaye.
[He was saying two brothers have surrendered.]
UK: Nahi bakwaas kar rahe hain.
[No they are talking nonsense.]
T: Jee
[Jee]
UK: Surrender ho gaya. Bakwaas kar raha hai. Kal 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.]
T: Aur kya naam lete hain. Uska. Baaki bhai kahan tak pahunch gaye
hain.
[And what other names do they take. His. Till where 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.]
T: Haan jee.
[Yes jee.]
UK: Udhar hain. Allam Dulla woh toh sahi behtreen ladh rahe hain.
Kaam jaari hai. Insey 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 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 maut kubool karein. Dua
[Well well pray for me, the martyr’s death may be accepted.
Pray…]
Advising the terrorists on the tactics to deal with the security forces who
were called in to neutralize them
399. (4) TRANSCRIPTS FROM HOTEL TAJ
Talk No. 3 (Ext. no. 970)
(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: Baat suno.
[Listen.]
T3: Haan jee.
[Yes jee.]
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.]
T3: Haan haan.
[Yes yes.]
UK2: Hello.
[Hello.]
T3: Haan jee. Mein sun raha hoon.
[Yes jee. I am listening.]
UK2: Jis taraf aap mude ho aapka munh samudr ke paas 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 lekar aapke upar shisht lekar
firing kar rahe hain. Jis tarah aap gaye hain. Uske 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 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 understand?]
T3: Theek hai.
[All right.]
Talk No. 8 (Ext. no. 972)
UK: Kyaa haal mere yaar? Shift ho gaye neechey.
[How are you, my friend? Have you shifted below?]
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.]
UK: Upar aag laga di hai?
[Have you set fire upstairs?]
T: Grenade fenka hai. Grenade.
[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.
[The 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.
[So, (you) have started to lit the fire.]
UK: Jis kamre se nikal kar aaye ho upar waali manzil hai na?
[The room from where you’ve come (is) on the upper floor?]
T: Haan jee, haan jee.
[Yes jee, yes jee.]
UK: Usko mere yaar jaakar aag lagao.
[My friend, go and set fire to it]
T: Haan jee bhai.
[Yes jee, bhai.]
UK: Kamron ke beech pardey hain gadde hain unko ikathha karke aag
laga do.
[In the rooms there are curtains and cushions, Put them together
and set them on fire.]
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.
[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 naya clear karne
lage ho.
[Set fire, set fire my friend; are you clearing any new rooms?]
T: Haan jee.
[Yes jee]
UK: Pehle chalo aag lagao mere yaar upar ek banda bas ho gaya. Aag
lagake neechey aa jaao. Ek 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?]
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.
[No, two men are upstairs. Send the whole party to them. You
have the other phone?]
T: Haan jee.
[Yes jee.]
UK: Dono ikkatha karke aag lagake aao.
[Put them together and set the fire and come.]
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 is great.
One man is near the stairs, one man is sitting inside with the
hostage, and two men are keeping watch outside.]
----------
UK2: Fire hua hai.
[There has been a fire]
T2: Haan fire hua. Abhi apna darwaaza band rakhein?
[Yes, there has been a fire. Should we keep our door closed?]
UK: Nahin aap chaaron ek kamre mein nahin ikkatha hongein. Woh yaad
rakhein aapke kareeb koyi 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 then those (hostages) who are
sitting with you…]
T2: Haan.
[Yes]
UK: Jab aapko lage koyi hamarey kareeb pahunch gaye hain aur hamare
liye mushkil ho rahi hai. Tab 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).]
T2: Haan haan. Insha-allah. Khadka denge. Insha-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.]
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.]
----------
UK2: Yeh aap kis manzil par hain aap.
[On which floor are you?]
T2: Hum sabse upar waali chhodkar neecheywale pe.
[On the topmost but one.]
UK2: Sabse ooperwali chhodkar neechey wale pe. Bande 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 toh pehle band
karte hain phir aapse raafta (baat 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.]
UK2: Line mat kato hum sun rahe hain.
[Don’t cut the line, we are listening.]
T2: Ek minute.
[One minute.]
UK2: Position badlo. Position badlo.
[Change your position. Change your position.]
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 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 at (the direction from)
where they are coming. They are on the third floor.]
TRANSCRIPTS FROM HOTEL OBEROI
Talk No. 4 (Ext. no. 979)
(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 mazboot kar
rahi hain. Number ek.
[On the top of your building the soldiers are making their
position very strong. Number one (1).]
T: Jee, Jee.
[Jee, Jee.]
UK: Agar aapko manzil pe aawaaz aa rahi ho toh chhupo andar.
[If noises are coming on your floor then hide inside.]
T: Haan jee.
[Yes jee.]
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 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.
[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?
[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.]
UK: Army ne kiya na?
[Is it by the Army?]
T: Haan jee.
[Yes jee.]
UK: Saamne aapke manzil par se aa rahi hain kya aawaazein?
[Are noises coming from the front side of your floor?]
T: Haan jee, aa rahin hain.
[Yes jee, (noises) are coming.]
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 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.
[Four-five (4-5) are there.]
UK: Aapki magazine ko burst pe kar lo. Char char hain naa?
[Put your magazine on ‘burst’ mode. Each of you have four (4),
right?]
T: Haan jee.
[Yes jee.]
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.]
T: Sahi.
[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 hai. Zarase bhi nazdeek aayenge
to grenade fenko aur jaise grenade fenkoge tab aapne bahar nikal
kar saamne daayein baayein firing karni hai toh phir Fadullah.
[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 as
soon as you throw the grenade come out and fire in the front and
to the right and left and then… Fadullah!]
----------
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 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.]
UK: Aise baithen ke andar aate hain, aapke upar nazar nahin pade.
Aap kissi sofe ke peechhey bairal gun ki nikaal kar baitho. Yeh
ek andaaza hai. Khada banda nazar aa jaata hai. Aaap aise
position leke 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 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 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.
[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 ek bandene peechhey ho jaana hai. Achha, jaise
grenade khatam hoti hai bahar nikal ke dono taraf se fire shuru
karna. Jitna dushman marna ya bhaagna, poora floor kaabu kar
lena, Insha-allah. Uske baad ladhai chaalu hogi.
[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
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: Insha-Allah, theek hai.
[God-willing alright.]
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 kholkar fenko apne pairon mein nahin fenk lena. Lekin
yeh option hai. Magazine laga ke sab tarah se taiyar rakho.
Insha-allah jo ek banda milta hai Insha-allah chhodna nahin hai.
[I mean keep your position safe. If you have a bed 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 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 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 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.
[I have thrown both the grenades.]
UK: Grenade fenk diye hain?
[Have you thrown the grenades.]
T: Haan jee.
[Yes jee.]
UK: Ab kalashan magazine kitni hain tumhare paas?
[How many kalashan magazines do you have?]
T: Mere paas do hi hain.
[I have only two.]
UK: Giraftaari waali shakl nahin hone deni. Yeh baat yaad rakhni
hai.
[There should be no situation of arrest. You must remember
that.]
T: Nahin. Insha-alla, Insha-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 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 smoke bomb and later take you
(alive).]
T: Nahin.
[No.]
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 karo.
[That would be a great loss. You come forward and 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.]
T: Chalo, try karte hain, Insha-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 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 place.]
T: Theek hai jee.
[All right jee.]
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.
[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.]
T: Theek hai, Insha-allah.
[All right, God-willing]
UK: Himmat karni hai mere veer, ghabraana nahin hai, Insha-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 waiting for you.]
Killing of hostages
400. (5) TRANSCRIPTS FROM NARIMAN HOUSE
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’)
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 hostages are with
you, they will not fire at you. You understand me?]
T: Jee jee.
[Yes, yes]
UK.II: Inka faayda tabtak hai jabtak aapke upar fire aane se rok raha
hai.
[They are useful only until they are stopping any firing at
you.]
T: Fire jab open ho jaayga.
[When the firing starts.]
UK.II: Fire jab open ho jaayga toh aap unko khatm kar do.
[When the firing starts, finish them.]
T: Jee Jee
[Yes, yes]
UK.II: Baat samajh aayi aapko? Fire jab open ho jaayga to aap unko
khatm kar do. Theek hai.
[Do you understand? When the firing starts, then finish them.
All right.]
T: Insha-allah.
[God-willing]
UK.II : Jab aapne dekha ke aapke upar dabaav aa raha hai sabse pehle
inhein
khatm karo.
[When you feel that you are coming under pressure, then first of
all finish them]
T: Insha-allah.
[God-willing]
UK.II: Kisi army ka yeh daava hota hai ki koyi bhi bande ko taqleef na
hote hue kaam karna hota hai.
[Every army has this commitment to do their job without causing
any harm to anyone.]
T: Insha-allah. Insha-allah.
[God-willing, God-willing]
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.
[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. Insha-allah. Insha-allah.
[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 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 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 clear 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 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 only when all the remaining eight terrorists
were killed at the three places where they were holding up.
AN OBITER:
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. From the transcripts, especially those from Taj
Hotel and Nariman House, it is evident that the terrorists who were
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
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 body was found in Kuber was the leader of the terrorist group
whom his colleagues had killed for some reason before leaving the boat[56].
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 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 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 strong 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 belonged to the navy but was given 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 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 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 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 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.
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 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 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.
406. 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. 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 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.
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.
ARGUMENTS
I. Denial of Due Process
Mr. Raju Ramachandran:
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 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 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 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
Gujarat[61], T. Nagappa v. Y.R. Muralidhar[62], Noor Aga v. State of
Punjab[63], NHRC v. State of Gujarat[64] , Jayendra Vishnu Thakur v. State
of Maharashtra[65] and G. Someshwar Rao v. Samineni Nageshwar Rao[66]; and
in support of the second limb he relied upon the decisions in Behram
Khursheed v. State of Bombay[67] and Olga Tellis v. Bombay Municipal
Corp.[68].
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 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.
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 proceedings. Mr. Ramachandran submitted that a mere
offer of legal aid is not the same as being made aware that one has the
Constitutional right to consult, and to be defended by, 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 confession, he was not informed of such a right.[69]The
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 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 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 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.
412. The learned Counsel sought to buttress his submission by referring to
the decision in Nandini Satpathy v. P. L. Dani[70] and through Nandini
Satpathy to the decision of 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 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.
413. Apart from Nandini Satpathy, Mr. Ramachandran relied upon the
decision of this Court in Khatri (II) v. State of Bihar[72] 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 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 Sandhu[73]. He referred to paragraphs 159 to 164
of the judgment where the 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 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 Punjab[74] and D.K. Basu v State of West
Bengal[75], were in complete harmony with the observations of this Court in
Nandini Satpathy as well as the Miranda rule enunciated by the U.S. Supreme
Court. Mr. Ramachandran also referred to 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 Counsel
contended 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
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 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 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 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 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
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’ 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 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 accompli 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 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, 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 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 Selvi and others v. State of Karnataka[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 self-incrimination”;
paragraphs 113 to 119 under the marginal 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:
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 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 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 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 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 22(1) which are as
follows:
“20. Protection in respect of conviction for offences.
... ...
(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 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 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-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 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:
161. Examination of witnesses by police.— (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 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 to expose him to a criminal
charge or to a penalty or 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 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.
(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 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 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, 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 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 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 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.
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 such omission occurs and whether any omission
amounts to a contradiction in the particular context shall be a
question of fact.”
(Emphasis supplied)
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 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:
“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).
(2) But no police officer or other person shall prevent, by 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:
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 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 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 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 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 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 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 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 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 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 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.
(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 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:—
“I have explained to (name) that he is not bound to make 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 the
person making it and admitted by him to be correct, and it contains a
full and true account of the statement made by him.
(Signed) A.B.
Magistrate.”
(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 opinion of the Magistrate, best fitted to the
circumstances of the case; and the Magistrate shall have power 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 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 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-
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 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 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 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 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 (under Section 315 CrPC), wherein the accused is
examined on oath, and pointed out that the voluntary 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;
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 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 a voluntary statement. The former was condemned
and 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, 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[77], in which an 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 accused person by a
police officer, resulting in a voluntary statement, which may ultimately
turn out to be incriminatory, is not ‘compulsion’”.
432. In light of the decision in Kathi Kalu Oghad, Mr. 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 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 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 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 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 enduring nature of these protections by giving them
Constitutional status.
434. Dealing with the right to legal assistance, Mr. 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) 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 Mr.
Subramanium, Article 22(1) has thus two significant facets:
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.
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.
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 for his defence if the accused is not represented
by a pleader and it appears to the court that he may not have sufficient
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 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 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 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 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 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 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.
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 v. United States[78], 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 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 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 Miranda rights by an accused person in order to avoid difficulties of
proof and to provide guidance to officers.[80] 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 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.
441. Mr. Subramanium also submitted that the Miranda principles that gave
the accused the right to silence and an absolute right to counsel at the
stage of police interrogation have 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. Sinclair[82]. He also
referred to a decision of the European Court in Salduz v. Turkey[83], 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].
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.
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 Kishore Samra[87], 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 completely different contexts. In D.K. Basu,
the Court was dealing with the use of compulsion during investigation and
the 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 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 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 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 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 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 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 pedestal
in Indian law, even prior to such judicial developments in the United
States. The learned Counsel submitted that the Constitutional provisions
of Article 20(3) and Article 22(1), read 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 Selvi, relied upon on behalf of
the appellant, and submitted that in Selvi this Court made the following
observations:-
“In Indian law, there is no automatic presumption that the custodial
statements have been extracted through compulsion. In short, there is
no requirement of additional 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 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 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 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 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.
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 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 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 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 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 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 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 these rights and agree to answer questions or make
a statement. But unless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence obtained as a
result of interrogation can be used against him.”
(Emphasis Added)
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 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:
“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 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 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.”
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[88] in 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: “[I]t would,
we think, be reasonable 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 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. 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 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. 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-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 the accused produced before the magistrate
declines to make the confession, the magistrate shall not authorize his
detention 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 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.
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 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 has declined to follow the Miranda rules.
457. Significant notice of the Miranda decision was first taken 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 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 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 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 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 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. If however an accused
expresses the wish to have his lawyer by his side at the time of
examination, this facility shall not be 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 involuntary
self-incrimination. 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 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 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 responsible non-partisan
official or non-official and allow 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 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 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 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 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 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 W.B. and Illias v. Collector of Customs, Madras, the stand of
the appellants cannot be accepted. The learned counsel 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.”
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
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 Poolpandi,
rejected the claim; but, in light of the decision in D.K. Basu and with
regard to the special facts 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 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 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 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, 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 as are permitted by law.”
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 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 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. 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 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)
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 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 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
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 paragraph 63 to the Miranda decision, observing as
follows:-
“In the United States, according to the decisions of the Supreme Court
viz., Miranda v. Arizona[90]; Escobedo v. Illinois[91] the prosecution
cannot make use of the statements stemming from custodial interrogation
unless 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
suspect/accused of his right to counsel and to remain silent. In
Miranda case (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-incrimination
and to ensure that the right to choose between silence and speech
remains unfettered 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.
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 against self-incrimination would remain incomplete and
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 legal aid to the accused as soon as he is brought
before the magistrate is very 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 to say that any failure to provide
legal aid to the accused at the beginning, or before his confession is
recorded under Section 164 CrPC, would inevitably render the trial illegal
is stretching the point to unacceptable extremes.
465. What seems to be overlooked in Mr. Ramachandran’s submission is that
the law of the POTA is a 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 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 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 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.
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 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 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 with the
submissions of Mr. Subramanium as formulated in paragraphs II and III 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 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.
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
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 and statutory provisions; and second, it overlooks the
socio-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 2 of 1974), that
substituted the earlier Code of 1898, 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 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 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 Sarkar[92] made the following observations:-
“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 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 and differing needs. I feel therefore that in each
case Judges must look straight into the heart of things and 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?”
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
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:-
“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 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 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 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.
(Emphasis Added)
474. Sections 12 and 13 in Chapter IV of the Act deal with 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 other
than the Supreme Court, and less than Rupees twelve thousand (Rs 12,000) if
the case is before the Supreme Court. As regards income, 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
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 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.
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 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 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
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 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, State of Bihar[93], 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 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”, 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
incommunicado situation and the State is under a mandate to provide a
lawyer to an accused person if the circumstances 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 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 no objection is raised
to such lawyer on behalf of such 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 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 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) case[94] which
was decided as far back as March 9, 1979 that the right to free legal
services is clearly an essential 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 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:
“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 personal liberty arises as soon as a person is arrested and
produced before a magistrate, for it is at that stage 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 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
the magistrate as also when he is remanded from time to time.”
480. In paragraph 6 of the judgment, this Court further said:
“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 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 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 be provided legal
representation at the cost of the State…….”
(Emphasis Added)
481. The resounding words of the Court in Khatri (II) are equally, if not
more, relevant today than when they were first 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.
482. As noted in Khatri (II) 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 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 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 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 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 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.
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 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 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 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.
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 any other similar reasons, to engage a
lawyer of his own choice?
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 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 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 (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 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 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.
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 “Kuber”), the appellant was arrested by Marde
(PW-48) at DCB-CID, Unit III, 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 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
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 appellant refused the offer of legal aid made to him.
490. We were also shown an undated letter written by the appellant to the
Pakistani Consulate/High Commission (“Pakistani Wakalat”), 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 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 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 arrangements
to take the dead body of Ismail to his home. He signed the letter as “Yours
Patriotic” (“Aapka Watan Parast”) Mohammad Ajmal.
491. Further, on December 26, 2008, on being produced before the
Additional Chief Metropolitan Magistrate, he handed 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 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 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 “Hon’ble Ambassador, Pakistan”, with a covering
letter under his seal and signature. Unfortunately for the appellant, the
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 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 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 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
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 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 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 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 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. From the
orders passed by the court in that 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 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 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 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
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 the Constitutional and legal principles, the rules
of natural justice demanded that the appellant be so informed.
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 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 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.
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 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.
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.
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 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:
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 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. 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 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, 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 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 relied upon the decision of this Court in Bashira v. State
of 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. 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 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 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.
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 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-complaining type, one who would suffer silently or
take things lying down. In the later stages of the trial, Mr. Kazmi raised
all 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 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.
II. The charges not established
504. Mr. Ramachandran feebly submitted that the evidence adduced by the
prosecution did not fully establish all the 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.
III. Confession Not Voluntary and Liable to be Eschewed from Consideration
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 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 it was full of unnecessary details that were
completely out of place, as those had no 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 phone
number of his father; the names of his younger siblings who lived with his
parents and those of his elder brother and 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 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
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-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 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 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 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 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 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 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 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” 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 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” (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 of the kind in
which the appellant was involved work strictly on 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, 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 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 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 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 prosecution’s case. Mr. Ramachandran
submitted that, if viewed objectively, those parts of the confession would
appear quite out of place and contrived. He also referred to some other
passages in the confessional statement, like the one where the members of
the terrorist squad are told that the SIM cards for 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 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.
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 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
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 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.
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 RDX 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
on the appellant, for which also there was otherwise no 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,
2009, before Mrs. Sawant-Wagule, 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
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 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 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 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 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
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 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
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, 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, 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 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 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 in mind that the appellant was making the
statement after being 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 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 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, 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 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 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 caught alive (which, as the phone transcripts indicate,
made his handlers quite anxious) that the Indian authorities were able to
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 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 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.
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 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 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.
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 the magistrate, she asked him when he first felt like making
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 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 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, 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 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 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 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 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
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 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 completely different 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 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 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 of the men in the organisation,
there is hardly any 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 (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 to seek. In
paragraph 40 of the statement recorded by the court 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 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 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 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 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 exerting its pull on the
appellant.
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
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 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;
2) Attempted to create instability in India by the aforesaid subversive
activities;
3) Terrorized the people in different parts of India by 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;
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.
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 been pressed by the prosecution to prove the
charges relating to conspiracy cannot be used against 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 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 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
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. 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 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
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.
Nalini[102]. We find no force or substance in the submission, and the
reliance placed on the decision in Nalini is quite misconceived. In
Nalini, 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. 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 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 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:-
“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 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 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. 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 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 transcripts are by no means any confessional statements
made under arrest and they 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
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 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 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.
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 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 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 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 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 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 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 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 provisions of
Section 121 of the Penal Code would cease to 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 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 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.
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 Delhi[103]. In Navjot Sandhu and Mohd. Arif, the
targets of attack were the Parliament building and the Red Fort, which this
Court 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 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. – 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.”
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 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 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 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.”
542. Section 122 similarly makes collection 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:-
“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 wage war against the Government of India, shall be
punished with imprisonment for life or imprisonment of either
description for a term not exceeding ten years, and shall also be
liable to fine.”
543. Section 123 deals with ‘Concealing with intent to facilitate design
to wage war against the Government of India’. 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’.
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 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 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 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 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 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 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 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
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.
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
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 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.”
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 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 kill many people. A foreign enemy
strikes at the sovereignty of the State, and his conspiracy and actions 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 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……
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, 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 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
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-
“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 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 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 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 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 “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 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 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 co-conspirators
committed was the offence of waging war 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 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
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 attack was made, causing the loss of a large number of
people and injury to an even greater number of people. 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 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 before the magistrate to the
passages where instructions are given by Amir Hafiz Sayeed (wanted accused
no. 1), Zaki-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 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 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.
VI. The Question of Sentence
554. The trial court has awarded five (5) death sentences to the appellant
for the offences punishable under:
i) Section 120B IPC read with Section 302 IPC for conspiracy to commit
murder;
ii) Section 121 IPC for waging war against the Government of India;
iii) Section 16 of the Unlawful Activities (Prevention) Act, 1967;
iv) Section 302 IPC for committing murder of 7 persons;
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.
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 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 appellant’s trial was compromised on due process
and, 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 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 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 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.
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
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 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)
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 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 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 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 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. 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 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 from his point of
view, the appellant may appear completely and dangerously wayward but his
motivation was good and 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 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 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 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 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. He joined the Lashkar-e-Toiba
around December 2007 and continued as its member till the end, despite a
number of opportunities to leave it. This shows his clear and unmistakable
intention to be a part of the organization and participate in its designs.
Even after his arrest he regarded himself as a “watan parast”, a patriotic
Pakistani at war with this country. Where is the question of his being
brain-washed or acting under remote control? We completely disagree that
the appellant was acting like an automaton. During the past months while we
lived through this case we have been able to make a fair assessment of the
appellant’s personality. It is true that he is not educated but he is a
very good and quick learner, has a tough mind and strong determination. He
is also quite clever and shrewd.[104] Unfortunately, he is wholly
remorseless and any feeling of pity is unknown to him. He kills without the
slightest twinge of conscience. Leaving aside all the massacre, we may here
refer only to the casualness with which the appellant and his associate Abu
Ismail shot down Gupta Bhelwala and the shanty dwellers Thakur Waghela and
Bhagan Shinde at Badruddin Tayabji Marg; the attempt to break into the
wards of Cama Hospital to kill the women and children who were crying and
wailing inside; and the nonchalance with which he and Abu Ismail gunned
down the police officer Durgude on coming out of Cama Hospital.
564. The saddest and the most disturbing part of the case is that the
appellant never showed any remorse for the terrible things he did. As seen
earlier, in the initial weeks after his arrest he continued to regard
himself as a “watan parast”, a patriotic Pakistani who considered himself
to be at war with this country, who had no use for an Indian lawyer but
needed a Pakistani lawyer to defend him in the court. He made the
confessional statement before the magistrate on February 17, 2009, not out
of any sense of guilt or sorrow or grief but to present himself as a hero.
He told the magistrate that he had absolutely no regret for whatever he had
done and he wanted to make the confession to set an example for others to
become Fidayeen like him and follow him in his deeds. Even in the course of
the trial he was never repentant and did not show any sign of contrition.
The judge trying him had occasion to watch him closely and has repeatedly
observed about the lack of any remorse on the part of the appellant. The
High Court, too, has noticed that the appellant never showed any remorse
for the large-scale murder committed by him. This, to our mind, forecloses
the possibility of any reform or rehabilitation of the appellant. The
alternative option of life sentence is thus unquestionably excluded in the
case of the appellant and death remains the only punishment that can be
given to him.
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 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. 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.”
(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 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 reason other than
they were related to one Amar Singh and his sister Piyaro Bai. The death
sentence awarded to Machhi Singh 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 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:
“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 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
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,
(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.
(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
34. When the murder is committed for a motive which 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 control of
the murderer or vis-à-vis whom the murderer is in a dominating position
or in a position of trust, or (c) a murder is committed in the course
for betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime
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 terrorise such persons and frighten them
into fleeing from a place or in order to deprive them of, or make them
surrender, lands or benefits conferred on them with a view to reverse
past injustices and in order to restore the social balance.
(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.
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 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 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-à-vis whom the murderer
is in a position of domination or trust (d) when the victim is a 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 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 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 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 lethal arms and explosives were
collected with the intention of waging war against the Government of India.
The conspiracy was to launch a murderous attack on Mumbai regarding it as
the financial centre of the country; to kill as many Indians and foreign
nationals as possible; to take Indians and foreign nationals as hostages
for using them as bargaining chips in regard to the terrorists’ demands;
and to try to incite communal strife and insurgency; all with the intent to
weaken the country from within.
571. The case presents the element of previous planning and preparation as
no other case. For execution of the conspiracy, the appellant and the nine
(9) other dead accused, his accomplices, were given rigorous and extensive
training as combatants. The planning for the attack was meticulous and
greatly detailed. The route from Karachi to Mumbai, the landing site at
Mumbai, the different targets at Mumbai were all predetermined. The nature
of the attack by the different teams of terrorists was planned and everyone
was given clear instructions as to what they were supposed to do at their
respective targets. All the terrorists, including the appellant, actually
acted according to the previous planning. A channel of communication
between the attacking terrorists and their handlers and collaborators from
across the border, based on advanced computer technology and procured
through deception, was already arranged and put in place before the attack
was launched.
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.
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 staggeringly
high but also as in no other or in extremely few cases. The terrorists
killed one hundred and sixty-six (166) people and injured, often
grievously, two hundred and thirty-eight (238) people. The dead included
eighteen (18) policemen and other security personnel and twenty-six (26)
foreign nationals. The injured included thirty-seven (37) policemen and
other security personnel and twenty-one (21) foreign nationals. Of those
dead, at least seven (7) were killed by the appellant personally, about
seventy-two (72) were killed by him in furtherance of the common intention
he shared with one Abu Ismail (deceased accused no. 1), and the rest were
victims of the conspiracy to which he was a party along with the nine (9)
dead accused and thirty-five (35) other accused who remain to be
apprehended and brought to court.
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, Hemant Karkare, Ashok Kamte, Vijay Salaskar and
the other policemen in the Qualis van were killed jointly by the appellant
and Abu Ismail. The policemen at Cama Hospital were injured, several of
them grievously, jointly by the appellant and Abu Ismail. The rest of the
policemen and law enforcement officers, including the NSG Commando Major
Sandeep Unnikrihsnan, were killed as part of the larger conspiracy to which
the appellant was a party.
576. The loss of property caused by the attack is colossal, over Rupees
one hundred and fifty crores (Rs. 150Cr.), again of a scale as in no other
case.
577. The offences committed by the appellant show a degree of cruelty,
brutality and depravity as in very few other cases.
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 RDX bombs.
579. As to the personality of the victims, all the persons killed/injured
at CST, Badruddin Tayabji Marg and Cama Hospital were harmless, defenceless
people. What is more, they did not even know the appellant and the
appellant too had no personal animus against them. He killed/injured them
simply because they happened to be Indians.
580. It is already seen above that the appellant never showed any
repentance or remorse, which is the first sign of any possibility of reform
and rehabilitation.
581. In short, this is a case of terrorist attack from across the border.
It has a magnitude of unprecedented enormity on all scales. The conspiracy
behind the attack was as deep and large as it was vicious. The preparation
and training for the execution was as thorough as the execution was
ruthless. In terms of loss of life and property, and more importantly in
its traumatizing effect, this case stands alone, or it is at least the very
rarest of rare to come before this Court since the birth of the Republic.
Therefore, it should also attract the rarest of rare punishment.
582. Against all this, the only mitigating factor is the appellant’s young
age, but that is completely offset by the absence of any remorse on his
part, and the resultant finding that in his case there is no possibility of
any reformation or rehabilitation.
583. In the effort to have the appellant spared of the death penalty Mr.
Ramachandran 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 Bihar[107]; (ii) Swamy Shraddananda (2) v. State of
Karnataka[108]; (iii) Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra[109]; (iv) Mohd. Farooq Abdul Gafur v. State of
Maharashtra[110]; (v) Rameshbhai Chandubhai Rathod v. State of
Gujarat[111]; (vi) Rameshbhai Chandubhai Rathod (2) v. State of
Gujarat[112]; (vii) Mulla and another v. State of Uttar Pradesh[113];
(viii) Dilip Premnarayan Tiwari v. State of Maharashtra[114]; (ix) R S
Budhwar v UOI[115]; and (x) State of Maharashtra v. Bharat Chaganlal
Raghani[116].
584. The observations relied upon by Mr. Ramachandran 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 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 unquestionably foreclosed”. Now, as long as the death
penalty remains on the statute book as punishment for certain offences,
including “waging war” and murder, it logically follows that there must be
some cases, howsoever rare or one in a million, that would call for
inflicting that penalty. That being the position we fail to see what case
would attract the death penalty, if not the case of the appellant. To hold
back the death penalty in this case would amount to obdurately declaring
that this Court rejects death as lawful penalty even though it is on the
statute book and held valid by Constitutional benches of this Court.
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.
587. The appeals are accordingly dismissed.
CRIMINAL APPEAL NO.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) 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, 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 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 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 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 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 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, Police Inspector Prashant Marde (PW-
48), Jivan Gulabkar (PW-35), Rajendra Bhosale (PW-38), Ms. Shantabai
Bhosale (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 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 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.
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. 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.
597. We find no merit in the appeal and it is, accordingly, dismissed.
TRANSFER PETITION (CRIMINAL) NO.30 OF 2012
598. In view of the judgment in Criminal Appeal Nos. 1899-1900 of 2011,
the Transfer Petition does not survive and it is, 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.
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 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 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 weeks, not once were the
voices raised, not once was the 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 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 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. Ramachandran and their respective teams and we put our
gratitude on record.
602. In this case we came across heroes like Tukaram Ombale, Hemant
Karkare, Ashok Kamte, Vijay Salaskar and Sandeep Unnikrishnan, who lost
their lives in the fight against 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 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 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 suffered 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 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 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 Ramachandran and Rupees three lakh fifty
thousand to Mr. Gaurav Agrawal (Rs 3.5 Lakhs) as token remuneration for
their 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.
…………………………………… J.
(Aftab Alam)
…………………………………… J.
(Chandramauli Kr. Prasad)
New Delhi,
August 29, 2012
SCHEDULE I
LIST OF PERSONS KILLED
|Sr. No. |NAME |POLICE/ |NATIONALITY |
| | |SECURITY FORCE/ | |
| | |CIVILIAN | |
|KUBER |
|1 |Amarchand Naran Solanki |Civilian |Indian |
|CST |
|2 |Shashank Chandrasen Shinde|Police |Indian |
| | |(Inspector) | |
|3 |Hamina Begum Hamid Shaikh |Civilian |Indian |
|4 |Ashraf Ali Allahrakha |Civilian |Indian |
| |Shaikh | | |
|5 |Ajij Nabilal Rampure |Civilian |Indian |
|6 |Aakash Akhilesh Yadav |Civilian |Indian |
|7 |Mukesh Bhikaji Jadhav |Home Guard |Indian |
|8 |Sitaram Mallapa Sakhare |Civilian |Indian |
|9 |Rahamtulla Ibrahim |Civilian |Indian |
|10 |Mishrilal Mourya Shri |Civilian |Indian |
| |Garib Mourya | | |
|11 |Vinod Madanlal Gupta |Civilian |Indian |
|12 |Sunil Ashok Thackare |Civilian |Indian |
|13 |Haji Ejaj Bhai Imamsaheb |Civilian |Indian |
| |Dalal | | |
|14 |Mira Narayan Chattarji |Civilian |Indian |
|15 |Shirish Sawla Chari |Civilian |Indian |
|16 |Sushilkumar Vishwambhar |Civilian |Indian |
| |Sharma | | |
|17 |Murlidhar Laxman Choudhary|Railway |Indian |
| | |Protection Force | |
| | |(Constable) | |
|18 |Ambadas Ramchandra Pawar |Police |Indian |
| | |(Constable) | |
|19 |Jaikumar Durairaj Nadar |Civilian |Indian |
|20 |Deepali Janardhan Chitekar|Civilian |Indian |
|21 |Raju Janardhan Chitekar |Civilian |Indian |
|22 |Aditya Ashok Yadav |Civilian |Indian |
|23 |Isibul Raheman Faizuddin |Civilian |Indian |
| |Raheman Shaikh | | |
|24 |Prakash Janath Mandal |Civilian |Indian |
|25 |Harakha Lalji Solanki |Civilian |Indian |
|26 |Mohamed Amanat Mohamad Ali|Civilian |Indian |
|27 |Sarafraz Sallauddin Ansari|Civilian |Indian |
|28 |Ayub Yakub Qureshi |Civilian |Indian |
|29 |Afarin Shahadab Qureshi |Civilian |Indian |
|30 |Avadesh Sudama Pandit |Civilian |Indian |
|31 |Chandulal Kashinath Tandel|Civilian |Indian |
|32 |Manohar Sohani |Civilian |Indian |
|33 |Mohamad Hussain Mohamad |Civilian |Indian |
| |Alamgir Shaikh | | |
|34 |Murtaza Ansari Sallauddin |Civilian |Indian |
| |Ansari | | |
|35 |Mohamad Arif Mohamed Islam|Civilian |Indian |
| |Ansari | | |
|36 |Mohamad Mukhtar Malik |Civilian |Indian |
|37 |Abbas Rajjab Ansari |Civilian |Indian |
|38 |Unknown Male person |Civilian |Indian |
|39 |Mrs.Gangabai Baburao |Civilian |Indian |
| |Kharatmol | | |
|40 |Narul Islam Ajahar Mulla |Civilian |Indian |
|41 |Murgan Palaniya Pillai |Civilian |Indian |
|42 |Rakhila Abbas Ansari |Civilian |Indian |
|43 |Nitesh Vijaykumar Sharma |Civilian |Indian |
|44 |Fatmabi Rehaman Shaikh |Civilian |Indian |
|45 |Meenu Arjun Ansari |Civilian |Indian |
|46 |Mohamad Itihas Ansari |Civilian |Indian |
|47 |Mastan Munir Qureshi |Civilian |Indian |
|48 |M.V. Anish |Civilian |Indian |
|49 |Upendra Birju Yadav |Civilian |Indian |
|50 |Unknown Male person |Civilian |Indian |
|51 |Poonam Bharat Navadia |Civilian |Indian |
|52 |Baichan Ramprasad Gupta |Civilian |Indian |
|53 |Nathuni Parshuram Yadav |Civilian |Indian |
|CAMA-IN |
|54 |Prakash Pandurang More |Police |Indian |
| | |(Sub-Inspector) | |
|55 |Vijay Madhukar Khandekar |Police |Indian |
| | |(Constable) | |
|56 |Baban Balu Ughade |Civilian |Indian |
|57 |Bhanu Devu Narkar |Civilian |Indian |
|58 |Thakur Budha Waghela |Civilian |Indian |
|59 |Bhagan Gangaram Shinde |Civilian |Indian |
|60 |Shivashankar Nirant Gupta |Civilian |Indian |
|CAMA-OUT |
|61 |Hemant Kamlakar Karkare |Police |Indian |
| | |(Joint | |
| | |Commissioner, | |
| | |ATS) | |
|62 |Ashok Marutirao Kamate |Police |Indian |
| | |(Additional | |
| | |Commissioner – | |
| | |East Region) | |
|63 |Vijay Sahadev Salaskar |Police |Indian |
| | |(Inspector) | |
|64 |Bapurao Sahebrao Durgude |Police |Indian |
| | |(Sub-Inspector) | |
|65 |Balasaheb @ Nana |Police |Indian |
| |Chandrakant Bhosale |(Assistant | |
| | |Sub-Inspector) | |
|66 |Arun Raghunath Chite |Police |Indian |
| | |(Constable) | |
|67 |Jayawant Hanumant Patil |Police |Indian |
| | |(Constable) | |
|68 |Yogesh Shivaji Patil |Police |Indian |
| | |(Constable) | |
|69 |Surendrakumar Bindu Rama |Civilian |Indian |
|VINOLI CHOWPATY |
|70 |Tukaram Gopal Ombale |Police |Indian |
| | |(Assistant | |
| | |Sub-Inspector) | |
|VILE PARLE BLAST |
|71 |Mohabbat Umer Abdul Khalid|Civilian |Indian |
|72 |Laxminarayan Goyal |Civilian |Indian |
|LEOPOLD CAFÉ |
|73 |Subhash Vanmali Vaghela |Civilian |Indian |
|74 |Pirpashi Mehboobali Shaikh|Civilian |Indian |
|75 |Shahabuddin Sirajuddin |Civilian |Indian |
| |Khan | | |
|76 |Harishbhai Durlabbhai |Civilian |Indian |
| |Gohil | | |
|77 |Hidayatullah Anwarali Kazi|Civilian |Indian |
|78 |Malyesh Manvendra Banarjee|Civilian |Indian |
|79 |Gourav Balchand Jain |Civilian |Indian |
|80 |P.K. Gopalkrishnan |Civilian |Indian |
|81 |Kamal Nanakram Motwani |Civilian |Indian |
|82 |Jurgen Hienrich Rudolf |Civilian |German |
|83 |Daphne Hilary Schmidt |Civilian |German |
|MAZGAON BLAST |
|84 |Mrs. Jarina Samsuddin |Civilian |Indian |
| |Shaikh | | |
|85 |Fulchandra Ramchandra Bind|Civilian |Indian |
|86 |Mrs. Reema Mohamad Rabiul |Civilian |Indian |
|HOTEL TAJ |
|87 |Major Sandip Unnikrishnan |Security Force |Indian |
|88 |Rahul Subhash Shinde |Police |Indian |
| | |(Constable) | |
|89 |Zaheen Sayyed Nisar Ali |Civilian |Indian |
| |Jafary Mateen | | |
|90 |Andres Don Livera |Civilian |British |
|91 |Gunjan Vishandas Narang |Civilian |Indian |
|92 |Vishandas Giridharidas |Civilian |Indian |
| |Narang | | |
|93 |Vijayrao Anandrao Banja |Civilian |Indian |
|94 |Sadanand Ratan Patil |Civilian |Indian |
|95 |Thomas Verghese |Civilian |Indian |
|96 |Ravi Jagan Kunwar |Civilian |Indian |
|97 |Boris Mario Do Rego |Civilian |Indian |
|98 |Satpakkam Rahmatulla |Civilian |Indian |
| |Shaukatali | | |
|99 |Faustine Basil Martis |Civilian |Indian |
|100 |Kaizad Naushir Kamdin |Civilian |Indian |
|101 |Neelam Vishandas Narang |Civilian |Indian |
|102 |Rupinder Devenersing |Civilian |Indian |
| |Randhava | | |
|103 |Eklak Ahmed Mustak Ahmed |Civilian |Indian |
|104 |Maksud Tabarakali Shaikh |Civilian |Indian |
|105 |Feroz Jamil Ahmed Khan |Civilian |Indian |
|106 |Teitelbaum Aryeh Levish |Civilian |Israeli |
|107 |Duglas Justin Markell |Civilian |Australian |
|108 |Chaitilal Gunish |Civilian |Mauritius |
|109 |Willem Jan Berbaers |Civilian |Belgium |
|110 |Nitisingh Karamveer Kang |Civilian |Indian |
|111 |Samarveer Singh Karamveer |Civilian |Indian |
| |Singh Kang | | |
|112 |Udaysingh Karamveer Singh |Civilian |Indian |
| |Kang | | |
|113 |Sabina Saigal Saikia |Civilian |Indian |
|114 |Hemlata Kashi Pillai |Civilian |Malaysian |
|115 |Rajiv Omprakash Sarswat |Civilian |Indian |
|116 |Gutam Devsingh Gosai |Civilian |Indian |
|117 |Rajan Eshwar Kamble |Civilian |Indian |
|118 |Burki Ralph Rainer Jachim |Civilian |German |
|119 |Hemant Pravin Talim |Civilian |Indian |
|120 |Shoeb Ahmed Shaikh |Civilian |Indian |
|121 |Michael Stuart Moss |Civilian |British |
|122 |Elizabeth Russell |Civilian |Canadian |
|NARIMAN HOUSE |
|123 |Salim Hussain Harharwala |Civilian |Indian |
|124 |Mehzabin @ Maria Salim |Civilian |Indian |
| |Harharwala | | |
|125 |Rivka Gavriel Holtzberg |Civilian |Israeli |
|126 |Rabbi Gavriel Noach |Civilian |Israeli |
| |Holtzberg | | |
|127 |Gajendra Singh |Security Force |Indian |
|128 |Ben Zion Chroman |Civilian |Israeli |
|129 |Norma Shvarzblat |Civilian |Mexican |
| |Robinovich | | |
|130 |Rajendrakumar Baburam |Civilian |Indian |
| |Sharma | | |
|131 |Yokevet Mosho Orpaz |Civilian |Israeli |
|HOTEL OBEROI |
|132 |T. Suda Hisashi |Civilian |Japanese |
|133 |Murad Amarsi |Civilian |French |
|134 |Loumiya Hiridaji Amarsi |Civilian |French |
|135 |Scherr Alan Michael |Civilian |American |
|136 |Neomi Leiya Sher |Civilian |American |
|137 |Sandeep Kisan Jeswani |Civilian |American |
|138 |Lo Hawei Yen |Civilian |Singapore |
|139 |Jhirachant Kanmani @ Jina |Civilian |Thailand |
|140 |Altino D' Lorenjo |Civilian |Italian |
|141 |Brett Gilbert Tailor |Civilian |Australian |
|142 |Farukh Dinshaw |Civilian |Indian |
|143 |Reshama Sunil Parikh |Civilian |Indian |
|144 |Sunil Shevantilal Parekh |Civilian |Indian |
|145 |Ajit Shrichand Chabriya |Civilian |Indian |
|146 |Sanjay Vijay Agarwal |Civilian |Indian |
|147 |Rita Sanjay Agarwal |Civilian |Indian |
|148 |Mohit Kanhaiyalal Harjani |Civilian |Indian |
|149 |Monika Ajit Chabriya |Civilian |Indian |
|150 |Harsha Mohit Harjani |Civilian |Indian |
|151 |Ravi Dara |Civilian |Indian |
|152 |Uma Vinod Gark |Civilian |Indian |
|153 |Pankaj Somchand Shah |Civilian |Indian |
|154 |Ashok Kapoor |Civilian |Indian |
|155 |Anand Suryadatta Bhatt |Civilian |Indian |
|156 |Rohington Bajji Mallu |Civilian |Indian |
|157 |Kannubhai Zaverbhai Patel |Civilian |Indian |
|158 |Ami Bipinichandra Thaker |Civilian |Indian |
|159 |Jordan Geigy Fernandise |Civilian |Indian |
|160 |Neeta Prakash Gaikwad |Civilian |Indian |
|161 |Shaunak Jayawant |Civilian |Indian |
| |Chemburkar | | |
|162 |Wilson Baburao Mandalik |Civilian |Indian |
|163 |Sarjerao Sadashiv Bhosale |Civilian |Indian |
|164 |JasminMahendrasingh Burji |Civilian |Indian |
|165 |Sanjy Sambhajirao Surve |Civilian |Indian |
|166 |Bimolchand Maibam |Civilian |Indian |
LIST OF INJURED PEOPLE
|Sr. No.|NAME |POLICE/ |NATIONALITY |
| | |SECURITY FORCE/ | |
| | |CIVILIAN | |
|CST |
|1 |Mukesh Bhagwatprakash |Civilian |Indian |
| |Agarwal | | |
|2 |Nisha Anilkumar Yadav |Civilian |Indian |
|3 |JangamVithalrao Bokade |Civilian |Indian |
|4 |Parasnath Ramsoman Giri |Railway Protection |Indian |
| | |Force | |
| | |(Head Constable) | |
|5 |Firoz Khan Khushnur Khan |Railway Protection |Indian |
| |Ghouri |Force | |
| | |(Constable) | |
|6 |Raziyabegum Noor Qureshi |Civilian |Indian |
|7 |Sarita Shantaram |Civilian |Indian |
| |Harkulkar | | |
|8 |Neeta Gajanan Kurhade |Civilian |Indian |
|9 |Ajamat Ali Narhu Sha |Civilian |Indian |
|10 |Maltidevi Madan Gupta |Civilian |Indian |
|11 |Sulochana Chandrakant |Civilian |Indian |
| |Lokhande | | |
|12 |Vijay Ramchandra Khote |Civilian |Indian |
|13 |Mumtaz Mohd. Yusuf Khan |Civilian |Indian |
|14 |Pappu Laldev Jawahar |Civilian |Indian |
| |Laldev | | |
|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 |
|19 |Mahadev Datta Petkar |Civilian |Indian |
|20 |Santoshkumar Faujdarsing |Civilian |Indian |
| |Yadav | | |
|21 |Miraj Alam Ali Mulla |Civilian |Indian |
| |Ansari | | |
|22 |Abdul Rashid Abdul Aziz |Civilian |Indian |
|23 |Abdul Salam Shaikh S. |Civilian |Indian |
| |Qureshi | | |
|24 |Akhilesh Dyanu Yadav |Civilian |Indian |
|25 |Ramzan Sahrif Kadar |Civilian |Indian |
| |Sharif | | |
|26 |Mohd. Siddiqu Mohd. Sagir|Civilian |Indian |
| |Alam | | |
|27 |Sachinkumar Singh |Civilian |Indian |
| |Santoshkumar Singh | | |
|28 |Tejas Arjungi |Civilian |Indian |
|29 |Shamshad Dalal |Civilian |Indian |
|30 |Baby Ashok Yadav |Civilian |Indian |
|31 |Shital Upendra Yadav |Civilian |Indian |
|32 |Asha Shridhar Borde |Civilian |Indian |
|33 |Vatsala Sahadev Kurhade |Civilian |Indian |
|34 |Chandrakant Ganpatirao |Civilian |Indian |
| |Lokhande | | |
|35 |Abdul Razak Farukh |Civilian |Indian |
| |Nasiruddin | | |
|36 |Afroz Abbas Ansari |Civilian |Indian |
|37 |Dadarao Rambhoji Jadhav |Civilian |Indian |
|38 |Suryabhan Sampat Gupta |Civilian |Indian |
|39 |Jagendrakumar |Civilian |Indian |
| |Kailashkumar Mishra | | |
|40 |Gopal Julena Prajapati |Civilian |Indian |
|41 |P. Nirmala |Civilian |Indian |
|42 |P. Ponuraj |Civilian |Indian |
|43 |Mohan Bharti |Civilian |Indian |
|44 |Sushant Nityanand Panda |Civilian |Indian |
|45 |Annasaheb Ambu Waghmode |Civilian |Indian |
|46 |T. Thavasi Parnal |Civilian |Indian |
|47 |Anand Bhimrao Arjun |Civilian |Indian |
|48 |Kanhayya Kedarnath Sahani|Civilian |Indian |
|49 |Vibha Ashokkumar Singh |Civilian |Indian |
|50 |Beti Alfonso |Civilian |Indian |
|51 |Indraraj Luise |Civilian |Indian |
|52 |Jayram Harilal Chawan |Civilian |Indian |
|53 |Sunita Upendra Yadav |Civilian |Indian |
|54 |Sushama Akhilesh Yadav |Civilian |Indian |
|55 |Raviranjan Shriram |Civilian |Indian |
| |Virendra | | |
|56 |Priyanka Chitaranjan Giri|Civilian |Indian |
|57 |Imran Shakur Bhagwan |Civilian |Indian |
|58 |Rekha Shyam Rathod |Civilian |Indian |
|59 |Barjrang Jaykaran |Civilian |Indian |
| |Prajapati | | |
|60 |Satyanand Karunakaro |Civilian |Indian |
| |Behra | | |
|61 |Manoj Prafulchandra |Civilian |Indian |
| |Kanojia | | |
|62 |Balaji Baburao Kharatmol |Civilian |Indian |
|63 |Mehboob Abbas Ansari |Civilian |Indian |
|64 |Asif Abdul Rafik Shaikh |Civilian |Indian |
|65 |Raghvendra Banvasi Singh |Civilian |Indian |
|66 |Ashok Keshwanand Singh |Civilian |Indian |
|67 |Radhadevi Bodhiram Sahani|Civilian |Indian |
|68 |Tapasi Taramniggam Nadar |Civilian |Indian |
|69 |Sayyed Shahnavaz Sayyed |Civilian |Indian |
| |Salim Mujawar | | |
|70 |Arvind Gopinath Bhalekar |Civilian |Indian |
|71 |Shivram Vijay Sawant |Civilian |Indian |
|72 |Ashok Shivram Patil |Civilian |Indian |
|73 |Bharat Ramchandra Bhosale|Government Railway |Indian |
| | |Police | |
| | |(Assistant | |
| | |Inspector) | |
|74 |Devika Natvarlal Rotawan |Civilian |Indian |
|75 |Farukh Nasiruddin |Civilian |Indian |
| |Khaliluddin | | |
|76 |Nafisa Sadaf Qureshi |Civilian |Indian |
|77 |Kishor Vinayak Kale |Civilian |Indian |
|78 |Sudama Aba Pandarkar |Government Railway |Indian |
| | |Police | |
| | |(Assistant | |
| | |Sub-Inspector) | |
|79 |Pandurang Subrao Patil |Government Railway |Indian |
| | |Police | |
| | |(Assistant | |
| | |Sub-Inspector) | |
|80 |Punamsingh Santosh Singh |Civilian |Indian |
|81 |Vishal Prakash Kardak |Civilian |Indian |
|82 |Sangita Niranjan Sardar |Civilian |Indian |
|83 |Niranjan Sadashiv Sardar |Civilian |Indian |
|84 |Ansarallh Saudaarallh |Civilian |Indian |
| |Baksh Mohd. Hanif | | |
|85 |Harshada Suhas Salaskar |Civilian |Indian |
|86 |Pappusing Mannusingh |Civilian |Indian |
|87 |Habibul Mohd. Sukurddin |Civilian |Indian |
| |Khan | | |
|88 |Anilkumar Rajendra Yadav |Civilian |Indian |
|89 |Laji Jagganath Pandye |Civilian |Indian |
|90 |Sanjay Nemchandra Yadav |Civilian |Indian |
|91 |Ratankumarji |Civilian |Indian |
| |Kanhayaprasad Yadav | | |
|92 |Shambunath Munai Yadav |Civilian |Indian |
|93 |Ganesh Sitaram Sakhare |Civilian |Indian |
|94 |Ashok Bhimappa Renetala |Civilian |Indian |
|95 |Alok Harilal Gupta |Civilian |Indian |
|96 |Ganpat Gangaram Shigwan |Civilian |Indian |
|97 |Fakir Mohd. Abdul Gafoor |Civilian |Indian |
|98 |Murlidhar Chintu Jhole |Police |Indian |
| | |(Head Constable) | |
|99 |Balu Bandu More |Police |Indian |
| | |(Constable) | |
|100 |Prakash Sohanlal Phalore |Civilian |Indian |
|101 |Ramji Yabad Napit |Railway Protection |Indian |
| | |Force | |
| | |(Assistant | |
| | |Sub-Inspector) | |
|102 |Vishveshwar Shishupal |Home Guard |Indian |
| |Pacharane | | |
|103 |Adhikrao Gyanu Kale |Government Railway |Indian |
| | |Police | |
| | |(Head Constable) | |
|104 |Uttam Vishnu Sasulkar |Home Guard |Indian |
|105 |Vijaya Ramkomal Kushwah |Civilian |Indian |
|106 |Bharat Shyam Nawadia |Civilian |Indian |
|107 |Anilkumar Dyanoji |Civilian |Indian |
| |Harkulkar | | |
|108 |Sadahiv Chandrakant Kolke|Civilian |Indian |
|109 |Prashant Purnachandra Das|Civilian |Indian |
| |
|CAMA-IN |
|110 |Harischandra Sonu |Civilian |Indian |
| |Shrivardhankar | | |
|111 |Chandrakant Gyandev Tikhe|Civilian |Indian |
|112 |Kailash Chandrabhan |Civilian |Indian |
| |Ghegadmal | | |
|113 |Vijay Abaji Shinde |Police |Indian |
| | |(Assistant | |
| | |Inspector) | |
|114 |Sadanand Vasant Date |Police |Indian |
| | |(Additional | |
| | |Commissioner) | |
|115 |Vijay Tukaram Powar |Police |Indian |
| | |(Assistant | |
| | |Inspector) | |
|116 |Sachin Dadasaheb Tilekar |Police |Indian |
| | |(Constable) | |
|117 |Mohan Gyanoba Shinde |Police |Indian |
| | |(Head Constable) | |
|118 |Hirabai Vilas Jadhav |Civilian |Indian |
|119 |Vinayak Chintaman |Police |Indian |
| |Dandgawhal |(Constable) | |
|CAMA-OUT |
|120 |Arun Dada Jadhav |Police |Indian |
| | |(Naik) | |
|121 |Maruti Mahdevrao Phad |Civilian |Indian |
|122 |Anil Mahadev Nirmal |Civilian |Indian |
|123 |Shankar Bhausaheb Vhande |Police |Indian |
| | |(Constable) | |
|124 |Prashant Sadashiv Koshti |Civilian |Indian |
|125 |Mohd. Asif Abdul Gani |Civilian |Indian |
| |Memon | | |
|126 |Kalpanth Jitai Singh |Civilian |Indian |
|VINOLI CHOWPATY |
|127 |Sanjay Yeshwant Govilkar |Police |Indian |
| | |(Assistant | |
| | |Inspector) | |
|VILE PARLE BLAST |
|128 |Roldan Glandson Ayman |Civilian |Indian |
|129 |Shyam Sunder Choudhary |Civilian |Indian |
|130 |Balkrishna Ramchandra |Civilian |Indian |
| |Bore | | |
|LEOPOLD CAFÉ |
|131 |Munira-ul Rayesi |Civilian |Oman |
|132 |Faizal Miran Sabil-ul |Civilian |Oman |
| |Gidgali | | |
|133 |Asma-un Rayesi |Civilian |Oman |
|134 |David John Kokar |Civilian |Australian |
|135 |Harnish Patel |Civilian |British |
|136 |Micheal Charles Murphy |Civilian |British |
|137 |Riyan Michael Murphy |Civilian |British |
|138 |Anamika Bholanath Gupta |Civilian |Indian |
|139 |Minakshi Raghubhai |Civilian |Indian |
| |Dattaji | | |
|140 |Bhaskar Paddu Dewadiga |Civilian |Indian |
|141 |Benjamin Jerold Methis |Civilian |German |
|142 |Pravin Pandurang Sawant |Police |Indian |
| | |(Naik) | |
|143 |Kunal Prakash Jaiswani |Civilian |Indian |
|144 |Ransale Gilbert |Civilian |Indian |
| |Santhumayor | | |
|145 |Ijas Abdul Karupadan |Civilian |Indian |
| |Kuddi | | |
|146 |Nilesh Mahendra Gandhi |Civilian |Indian |
|147 |Prakash Satan Bharwani |Civilian |Indian |
|148 |Ramchandra Selumadhav |Civilian |Indian |
| |Nair | | |
|149 |Bharat Sasuprasad Gujar |Civilian |Indian |
|150 |Rasika Krushna Sawant |Civilian |Indian |
|151 |Mohd. Parvez Aslam Ansari|Civilian |Indian |
|152 |Mohd. Ayub Mohd. Abdul |Civilian |Indian |
| |Ansari | | |
|153 |Manoj Bahadur Thakur |Civilian |Indian |
|154 |Fanishang Misha Bhishum |Civilian |Indian |
|155 |Naresh Mulchand Jumani |Civilian |Indian |
|156 |Prashant Vasant Tambe |Civilian |Indian |
|157 |Nivrutti Baburao Gavhane |Police |Indian |
| | |(Naik) | |
|158 |Katherin Austin |Civilian |Australian |
|MAZGAON BLAST |
|159 |Rajendraprasad Ramchandra|Civilian |Indian |
| |Maurya | | |
|160 |Abdul Salim Shaikh |Civilian |Indian |
|161 |Shahbaz Juber Khan |Civilian |Indian |
|162 |Sabira Majid Khan |Civilian |Indian |
|163 |Sohel Abdul Shaikh |Civilian |Indian |
|164 |Kabir Bablu Shaikh |Civilian |Indian |
|165 |Kulsum Babu Shaikh |Civilian |Indian |
|166 |Jasmin Babu Shaikh |Civilian |Indian |
|167 |Imran Mohd. Shafi Pathari|Civilian |Indian |
|168 |Manoharabegum Ali Ahmed |Civilian |Indian |
| |Shaikh | | |
|169 |Hawa Abdul Salim Shaikh |Civilian |Indian |
|170 |Sanju Kurshna Ghorpade |Civilian |Indian |
|171 |Manorabagum Ali Akbar |Civilian |Indian |
| |Shaikh | | |
|172 |Saiddiqui Firoz Shaikh |Civilian |Indian |
|173 |Shamin Rauf Shaikh |Civilian |Indian |
|174 |Rahaman Ali Akbar Shaikh |Civilian |Indian |
|175 |Heena China Shaikh |Civilian |Indian |
|176 |Mukhtar Shriniwas Shaikh |Civilian |Indian |
|177 |Kanhaikumar Harikishor |Civilian |Indian |
| |Paswan | | |
|HOTEL TAJ |
|178 |Deepak Narsu Dhole |Police |Indian |
| | |(Inspector) | |
|179 |Samadhan Shankar More |State Reserve |Indian |
| | |Police Force | |
|180 |Sanjay Uttam Gomase |State Reserve |Indian |
| | |Police Force | |
|181 |Rafal Godas |Civilian |Spanish |
|182 |Maria Roza Romero |Civilian |Spanish |
|183 |Simond Helis |Civilian |British |
|184 |Eyujin Tan Jhonsi |Civilian |Philippines |
|185 |Hanifa Bilakiya |Civilian |Indian |
|186 |Anjum Gaful Bilakiya |Civilian |Indian |
|187 |U.T Bernad |Civilian |German |
|188 |Vinay Keshavaji Kuntawala|Civilian |Indian |
|189 |Deepak Pramod Gupta |Civilian |Indian |
|190 |Pragati Deepak Gupta |Civilian |Indian |
|191 |Mohanlal Pratap Taware |Civilian |Indian |
|192 |Sunil Kumar Jodha |Security Force |Indian |
|193 |Vishvanath Maruti Gaikwad|State Reserve |Indian |
| | |Police Force | |
|194 |K.R. Rammurthi |Civilian |Indian |
|195 |Adil Rohengtan Irani |Civilian |Indian |
|196 |Ashish Ankush Patil |Civilian |Indian |
|197 |Nitin Digamber Kakade |Police |Indian |
| | |(Sub-Inspector) | |
|198 |Naushir Firoz Sanjana |Civilian |Indian |
|199 |Jagdish Waman Gujran |Civilian |Indian |
|200 |Nitin Satishkumar Minocha|Civilian |Indian |
|201 |Sajesh Narayan Nair |Civilian |Indian |
|202 |Rakesh Harischandra |Civilian |Indian |
| |Chawan | | |
|203 |Amit Raghnuath Khetle |Police |Indian |
| | |(Constable) | |
|204 |Ashok Laxman Pawar |Police |Indian |
| | |(Naik) | |
|205 |Arun Sarjerao Mane |Police |Indian |
| | |(Naik) | |
|206 |Saudagar Nivrutti Shinde |Police |Indian |
| | |(Constable) | |
|207 |Shankar Shamrao Pawar |Police |Indian |
| | |(Constable) | |
|NARIMAN HOUSE |
|208 |Prakash Rawji Surve |Civilian |Indian |
|209 |Bablu Rajsing Yallam |Civilian |Indian |
|210 |Sanjay Laxman Katar |Civilian |Indian |
|211 |Vijay Ankush Falke |Civilian |Indian |
|212 |Ashok Babu Sunnap |Civilian |Indian |
|213 |Pradosh Prakash Perekar |Civilian |Indian |
|214 |Anil Sakharam Varal |Civilian |Indian |
|HOTEL OBEROI & HOTEL TRIDENT |
|215 |Shabbir Tahirna Naruddin |Civilian |Indian |
|216 |Amardeep Harkisan Sethi |Civilian |Indian |
|217 |Sidharth Rajkumar Tyagi |Civilian |Indian |
|218 |Drrissuz Sobizutski |Civilian |Poland |
|219 |Linda Oricistala Rangsdel|Civilian |American |
|220 |Alisa Micheal |Civilian |Canadian |
|221 |Andolina Waokta |Civilian |American |
|222 |Helan Connolly |Civilian |Canadian |
|223 |Jahid Jibad Mebyar |Civilian |Jordanian |
|224 |Shi Fung Chen |Civilian |Japanese |
|225 |Reshma Sanjay Khiyani |Civilian |Indian |
|226 |C.M. Puri |Civilian |Indian |
|227 |Capt. A.K. Singh |Security Force |Indian |
|228 |Camando Manish |Security Force |Indian |
|229 |Apurva Natwarlal Parekh |Civilian |Indian |
|230 |Dinaj Puranchand Sharma |Civilian |Indian |
|231 |Chandresh Harjiwandas |Civilian |Indian |
| |Vyas | | |
|232 |Imran Jan Mohd. Merchant |Civilian |Indian |
|233 |Appasaheb Maruti Patil |Civilian |Indian |
|234 |Anil Bhaskar Kolhe |State Reserve |Indian |
| | |Police Force | |
|235 |Gangaram Suryabhan Borde |Civilian |Indian |
|236 |Ranjit Jagganath Jadhav |State Reserve |Indian |
| | |Police Force | |
|237 |Joseph Joy Pultara |Civilian |Indian |
|238 |Virendra Pitamber Semwal |Civilian |Indian |
SCHEDULE II
LIST OF ACCUSED PERSONS
|SR. No. |NAME |
|ACCUSED ON TRIAL |
|1 |Mohammad Ajmal Mohammad Amir Kasab @ Abu Mujahid |
|2 |Fahim Arshad Mohammad Yusuf Ansari @ Abu Jarar @ Sakib @ Sahil|
| |Pawaskar @ Sameer Shaikh@ Ahmed Hasan |
|3 |Sabauddin Ahmed Shabbir Ahmed Shaikh @ Saba @ Farhan @ |
| |Mubbashir @ Babar @ Sameer Singh @ Sanjiv @ Abu-Al-Kasim @ |
| |Iftikhar @ Murshad @ Mohammad Shafik@Ajmal Ali |
|ACCUSED WHO DIED IN COMMISSION OF OFFENCE |
|1 |Ismail Khan @Abu Ismail |
|2 |Imran Babar @ Abu Aqsa |
|3 |Nasir @ Abu Umar |
|4 |Nazir @ Abu Omair |
|5 |Hafiz Arshad @ Abdul Rehaman Bada @ Hayaji |
|6 |Abadul Reheman Chhota @ Saqib |
|7 |Fahad Ullah |
|8 |Javed @ Abu Ali |
|9 |Shoaib @ Abu Soheb |
|WANTED ACCUSED |
|1 |Hafeez Mohammad Saeed @ Hafiz @ Hafiz Saab |
|2 |Zaki-Ur-Rehaman Lakhvi |
|3 |Abu Hamza |
|4 |Abu Al Kama @ Amjid |
|5 |Abu Kaahfa |
|6 |Mujjamil @ Yusuf |
|7 |Zarar Shah |
|8 |Abu Fahad Ullah |
|9 |Abu Abdul Rehman |
|10 |Abu Anas |
|11 |Abu Bashir |
|12 |Abu Imran |
|13 |Abu Mufti Saeed |
|14 |Hakim Saab |
|15 |Yusuf |
|16 |Mursheed |
|17 |Aakib |
|18 |Abu Umar Saeed |
|19 |Usman |
|20 |Major General Sahab – Name not known |
|21 |Kharak Singh |
|22 |Mohammad Ishfak |
|23 |Javid Iqbal |
|24 |Sajid Iftikhar |
|25 |Col. R. Saadat Ullah |
|26 |Khurram Shahdad |
|27 |Abu Abdur Rehaman |
|28 |Abu Muavia |
|29 |Abu Anis |
|30 |Abu Bashir |
|31 |Abu Hanjla Pathan |
|32 |Abu Saria |
|33 |Abu Saif Ur Rehman |
|34 |Abu Imran |
|35 |Hakim Saheb |
SCHEDULE III
DNA EVIDENCE
|SR. NO. |NAME OF THE |FORWARDING LETTER |ARTICLES SEIZED DURING |OPINION |
| |TERRORIST |TO FSL FOR DNA |INVESTIGATION IN M.V. | |
| | |PROFILING |KUBER | |
|1. |Kasab |Exhibit No. 658 |Jacket (Art. 186 Colly.)|The DNA profile from the control |
| | | | |sample matched with the DNA profile |
| | | | |from sweat detected in jacket – |
| | | | |report is Exhibit No. 205-F |
|2. |Abu Ismail |Exhibit No. 216 |Blanket (Art. 184 |The DNA profile from the control |
| | | |Colly.) |sample matched with the DNA profile |
| | | | |from sweat detected on blanket – |
| | | | |report is Exhibit No. 205-B |
|3. |Imran Babar |Exhibit No. 683 |– |– |
|4. |Abu Umar |Exhibit No. 683 |Monkey Cap (Art. 187 |The DNA profile from the control |
| | | |Colly.) |sample matched with the DNA profile |
| | | | |from sweat detected on Monkey cap – |
| | | | |report is Exhibit No. 205-E |
|5. |Abu Omair |Exhibit No. 671 |Jacket (Art. 186 Colly.)|The DNA profile from the control |
| | |Colly | |sample matched with the DNA profile |
| | | | |from sweat detected on jacket – |
| | | | |report is Exhibit No. 205-G |
|6. |Abdul Rehman Bada |– |– |– |
|7. |Abdul Rehman |Exhibit No. 665 |Israeli Cap (Art. 187 |The DNA profile from the control |
| |Chhota | |Colly.) |sample matched with the DNA profile |
| | | | |from sweat detected on Israeli cap – |
| | | | |report is Exhibit No. 205-D |
|8. |Fahadullah |Exhibit No. 666 |– |– |
|9. |Abu Ali |Exhibit No. 671 |Handkerchief (Art. 206) |The DNA profile from the control |
| | |Colly. | |sample matched with the DNA profile |
| | | | |from sweat detected on handkerchief –|
| | | | |report is Exhibit No. 205-C |
|10. |Abu Soheb |Exhibit No. 671 |– |– |
| | |Colly. | | |
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1899-1900 OF 2011
MOHAMMED AJMAL MOHAMMAD
AMIR KASAB @ ABU MUJAHID .... APPELLANT
VERSUS
STATE OF MAHARASHTRA ... RESPONDENT
WITH
CRIMINAL APPEAL NO. 1961 OF 2011
STATE OF MAHARASHTRA .... APPELLANT
VERSUS
FAMHIM HARSHAD MOHAMMAD YUSUF
ANSARI & ANOTHER ... RESPONDENTS
WITH
TRANSFER PETITION (CRIMINAL) NO. 30 OF 2012
RADHAKANT YADAV .... APPELLANT
VERSUS
UNION OF INDIA & OTHERS ... RESPONDENTS
JUDGMENT
CHANDRAMAULI KR. PRASAD,J.
I agree.
However, I wish to add few words of my own.
In all human affairs absolute certainty is myth. Prof. Brett 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.
Hardly one come across a case, where Court does not resort to
“certain probability” as working substitute for proof 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 can be a
reality.
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 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.
…………………………………………………………J.
(CHANDRAMAULI KR. PRASAD)
NEW DELHI,
AUGUST 29,2012.
-----------------------
[1] A complete list of people killed and injured is appended at the
bottom of the judgment as Schedule No. I, 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 judgment as Schedule No. II, forming part
of the judgment.
[3] A term used by the appellant; vernacular adaptation of buddy.
[4] To reconstruct the events at the CST the prosecution has examine
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
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, before lobbing the hand grand at the crowd of passengers, Abu
Ismail had placed the bag containing the RDX 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.
[6] The fake identity card with Hindu name given to each member of the
group of terrorists by Abu Kafa before leaving for Mumbai
[7] Independently established through mobile phone call records
[8] As we shall see presently this was Assistant Sub-Inspector Sudama
Aba Pandarkar (PW-62)
[9] As we shall see presently this was Police Constable Ambadas Pawar
(one of the policemen falling down to the terrorists’ bullets)
[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 hand holding the AK-47
with the barrel pointing downwards. In the second picture he is raising the
gun with the right hand and the left hand is 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).
[12] Ext. nos. 410-A, 410-B and 410-C are pictures taken when Kasab and
Abu Ismail were at CST. All the three pictures appear to be taken from the
front. In the pictures 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-C Abu Ismail is hidden behind a pillar but Kasab is clearly
shown carrying a haversack on his back and an AK-47 in both hands.
[13] Ext. no. 410-D clearly shows Kasab coming down form 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 shoulder and
the AK-47 held in both hands ready to fire.
[14] PW-62, Injured: shown in photograph Ext. no. 245
[15] Ambadas Pawar, killed; shown lying down with Shashank Shinde in
photograph Ext. no. 242
[16] PW-61, D’souza
[17] Though Devika was not examined by the police earlier and she was
only a child aged 10 years, on an application made by the 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.
[18] For this part of the case the prosecution examined thirty-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 an ocular account 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 and injured by Kasab and
Abu Ismail both in the lane before they entered Cama hospital and inside
the hospital.
[20] They were 1.Timesh Narsing Chinnekar (PW-123) whose wife Gracy was
admitted in the hospital on November 22, 2008, for delivery; 2. Thomas
Sidhappa Uledhar (PW-108), brother-in-law of Chinnekar; and 3. Soman, a
friend of Uledhar
[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 the
shrine holding him responsible for getting nearly killed on November 26.
The other judge, on the other hand, maintained that the occurrence would
have greatly enhanced his devotion for the saint, whom the witness would
see as his savior.
[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 floor but the stairs would go beyond, right up to the terrace of
the building.
[23] For this part of the case the prosecution examined eighteen (18)
witnesses. Leaving aside the doctor, forensic expert and other witnesses of
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 gunshot injuries when his car was fired upon by the terrorists.
[24] The number relates to the persons killed and injured by Kasab and
Abu Ismail from the point they came out of Cama 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
only stated before the court that, from November 28, 2008, he was handling
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 Cama Hospital when Kasab and Abu Ismail came out of the
Hospital, and he too had witnessed the whole incident. Thereupon, the court
recalled Thorawade and he was re-examined by the court on November 23,
2009.
[26] Peter Mobile is the name given to a vehicle fitted with a wireless
system. One such Peter Mobile is provided to each police station under the
direct control of the Sr. PI in charge of the police station.
[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
persons, namely, police constable driver Chitte and a civilian Surendra
Bindu Ram, were killed, vide PW-654 (Ashok Dattatraya Khedkar, Assistant
Police Inspector)
[28] Pydhonie Division Jeep was assigned to Shantilal Arjun Bhamre,
Assistant Commissioner of Police, Pydhonie Division (PW-133) and he had
come there on that Jeep.
[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 person from whom the car was taken away
at gun-point and, since he was not the jurisdictional policeman, he handed
over the recorded statement 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 evacuated from Oberoi Hotel.
[30] For this part of the case the prosecution has examined ten (10)
witnesses. Leaving 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 logs and the last secured the area after the
incident.
[31] According to the Post-Mortem of Abu Ismai (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.
[32] Their identity was established by DNA profiling of the remains of
the bodies found in the destroyed taxi.
[33] All calls established through mobile call records.
[34] One (1) the “Nakhva” on the Kuber; fifty-two (52) at CST; seven (7),
“Cama in”; nine (9), “Cama out”; one (1) at Vinoli Chowpaty; and two (2) in
the Vile Parle taxi blast.
[35] One hundred and nine (109) at CST; ten (10), “Cama in”; seven (7),
“Cama out”; one (1) at Vinoli Chowpaty; and three (3) at Vile Parle taxi
blast.
[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, Vinod Madanlal Gupta, Ambadas
Ramchandra Pawar, Abbas Rajab 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, was hit
by shots fired from Article 427, the AK-47 rifle used by Abu Ismail.
[37] See letter dated January 5, 2009 from the Chief Investigating
Officer to the Police Surgeon, Mumbai, Article 991
[38] See Wasim Ahmed Bashiruddin Shaikh (PW-225) and Mohammad Rabiul
Mohammad Kiramal Shaikh (PW-176)
[39] All this can be witnessed in the CCTV recordings of the Hotel.
[40] After having taken Ramamoorthy captive, the terrorists were talking
with their handlers 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 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 his pupils how to kill Muslims. Ramamoorthy finally disclosed his
true identity.
Before he was able to escape, Ramamoorthy had a most harrowing time
with his captors, and one may appreciate his plight by recalling a few
verses from a contemporary poem reflecting 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
and I by you.
“You target me
yet you are blind
product of an
imprisoned mind.
Your freedom comes
with your last breath
for me, when I
escape from death.
No questions asked
when you will die
those mourning me
will question why.”
(from ‘Retaliate’ by Kapil Sibal, in My World
Within)
[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 this would
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 RDX bomb placed by
the terrorists themselves on the fifth floor of the hotel.
[43] Both the bombs planted by the terrorists exploded causing
considerable damage; see Rambuval Chandrapati Yadav (PW-202).
[44] See the evidence of Kazi Zakir Hussain (PW-239).
[45] It is reported that it was at the Taj Mahal Hotel ballroom that, on
February 20, 1918, at 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 Mazgaon, where the
bomb 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 the grave of his wife Ruttie at the Khoja
Shiite Isna’ashri Cemetry, situated at Mazgaon, 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 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
latter 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 him and not allow him to flee.
[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.
[48] See Exhibit no. 160, the office copy of the original registration
certificate.
[49] It may be stated here that the witness was giving the list of the
articles from his 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 Panchnama, he said that there were fourteen (14) to fifteen (15)
shirts.
[50] * 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.
[51] Vermicelli
[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 facilitated 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
letterogatories sent by the Indian court (See PW-153, Geoffrey Maron,
Special Agent, FBI).
[53] The full description of the pink foam piece is given at Exhibit no.
32, in the Panchnama dated November 27, 2008, Ext. no. 486.
[54] See Ext. no. 182 and PW-41 Gorakh Nalawade (for seizure of the foam
pieces on Kuber), Ext. no. 269 and 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 Cama Hospital) & Ext. no. 736 and PW-182
Prakash Bhoite (for seizure of the foam pieces from Hotel Taj): The foam
pieces were numbered in the forensic science laboratory as Ext. no. 75 of
DNA-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 Cama
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 Mavle (PW-247) and his report Ext. no. 1013
[55] Described in the transcripts of intercepted calls from Hotel Taj:
Talk no.2
[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. 3 (Ext. No. 970)
[61] (2006) 3 SCC 374 (paragraphs 33-39 with special reference to
paragraph 38
[62] (2008) 5 SCC 633 (paragraph 8, page 636)
[63] (2008) 16 SCC 417 (paragraphs 71, 113, 114)
[64] (2008) 16 SCC 497 (paragraph 5, page 499)
[65] (2009) 7 SCC 104 (paragraph 53, page 127)
[66] (2009) 14 SCC 677 (paragraph 10, page 680)
[67] (1955) 1 SCR 613 (page 653, 2nd paragraph, 654)
[68] (1985) 3 SCC 545 (paragraph 28 and 29, page 569, 570)
[69] This statement is factually inaccurate but in fairness to Mr.
Ramachandran it 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 SCC 424
[71] 384 US 436 (1966)
[72] (1981) 1 SCC 627
[73] (2005) 11 SCC 600
[74] (1994) 3 SCC 569
[75] (1997) 1 SCC 416
[76] (2010) 7 SCC 263
[77] [1962] 3 SCR 10
[78] 512 US 452 (1993)
[79] 130 S.Ct. 2250 (2010) [State Compilation 1, pg. 138]
[80] 130 S.Ct. 2250 at 2260 (2010) [State Compilation 1, pg. 151]
[81] [1992] 177 CLR 292
[82] [2010] 2 S.C.R. 310
[83] (2009) 49 EHRR 19
[84] [2011] UKSC 43
[85] [2011] UKSC 54
[86] (1992) 3 SCC 259
[87] (2011) 12 SCC 362
[88] AIR 1957 SC 637 (644)
[89] 309 US 227: 84 L Ed 716: 60 S Ct 472 (1940)
[90] 384 US 436: 16 L Ed 2d 694 (1966)
[91] 378 US 478: 12 L Ed 2d 977 (1964)
[92] AIR 1952 SC 75
[93] (1980) 1 SCC 98
[94] Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1
SCC 98
[95] (1986) 2 SCC 401
[96] A detailed form prescribed after this Court’s decision in D.K. Basu,
which every police officer in Maharashtra is required to fill up at the
time of making arrest in compliance with the directions of this Court.
[97] Criminal Appeal No.284 of 1968, decided on December 17, 1968
[98] (1969) 1 SCR 32
[99] (1974) 3 SCC 581 (para 1)
[100] We may recall here the injunction by the collaborators to the
terrorists against being caught alive as appearing in the transcripts of
their phone calls.
[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 his
national, it came to light that the appellant learnt about the fact from
the 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.
[102] (1999) 5 SCC 253 (para 111)
[103] 2011 (8) SCALE 328
[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
earlier statement, recorded under Section 164 CrPC, thus cleverly offering
himself for conviction but trying to escape the extreme penalty.
[105] (1980) 2 SCC 684
[106] (1983) 3 SCC 470
[107] (2011) 5 SCC 317, paras 23-24
[108] (2008) 13 SCC 767, para 43, 48-53
[109] (2009) 6 SCC 498, para 64-66, 71-72, 80-89
[110] (2009) 11 SCALE 327, para 11-23: (2010) 14 SCC 641
[111] (2009) 5 SCC 740, para 83-84, 107-110
[112] (2011) 2 SCC 764
[113] (2010) 3 SCC 508, para 80
[114] (2010) 1 SCC 775, para 66-67
[115] (1996) 9 SCC 502, para 15
[116] (2001) 9 SCC 1, para 1, 63
