Supreme Court of India

Md.Ajmal Md.Amir Kasab @Abu Majahid vs State Of Maharashtra on 29 August, 2012

Equivalent citations: AIR 2012 SUPREME COURT 3565
Author: Aftab Alam
Bench: Aftab Alam, Chandramauli Kr. Prasad

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:

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
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
1. Three (3) empties
1. One (1) pistol with magazine
2. One (1) pistol with empty magazine
1. One (1) tin box of size two by four (2x4) inches of explosives
2. Seven (7) empties
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
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.
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-
[email protected]. 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 [email protected] 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