KASAB Judgment by Supreme Court

Kasab Judgment

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
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  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.
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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
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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.
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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
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.
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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.
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.
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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, 3
rd
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
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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
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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
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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 subsection 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
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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.
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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.
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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
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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-eToiba 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
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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.
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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-urRehman 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].
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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-urRehman 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
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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’.
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[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 busstand 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
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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
20 | P a g ePage 21
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:
21 | P a g ePage 22
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 AlKama. 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.
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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 incharge 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.
23 | P a g ePage 24
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
24 | P a g ePage 25
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 (13
th
) 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
25 | P a g ePage 26
“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
26 | P a g ePage 27
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 (27
th
)
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”.
27 | P a g ePage 28
[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, Zakiur-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.
28 | P a g ePage 29
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
29 | P a g ePage 30
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
30 | P a g ePage 31
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 (15
th
) 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.  
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60. On the day of the sixteenth (16
th
) 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 (17
th
) 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 (18
th
) 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
32 | P a g ePage 33
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 (20
th
) 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.
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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].
34 | P a g ePage 35
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
35 | P a g ePage 36
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
36 | P a g ePage 37
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
37 | P a g ePage 38
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,
38 | P a g ePage 39
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
39 | P a g ePage 40
(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.
40 | P a g ePage 41
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
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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 speedboat. 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-
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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 speedboat. 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.
43 | P a g ePage 44
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
44 | P a g ePage 45
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.
45 | P a g ePage 46
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 irongrill 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
46 | P a g ePage 47
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
47 | P a g ePage 48
‘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
48 | P a g ePage 49
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
49 | P a g ePage 50
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
50 | P a g ePage 51
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,
51 | P a g ePage 52
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,
52 | P a g ePage 53
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
53 | P a g ePage 54
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
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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
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.  
55 | P a g ePage 56
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
56 | P a g ePage 57
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
57 | P a g ePage 58
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.
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
58 | P a g ePage 59
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 handgrenades at the railway station.
59 | P a g ePage 60
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
60 | P a g ePage 61
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
61 | P a g ePage 62
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
62 | P a g ePage 63
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
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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
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)
64 | P a g ePage 65
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
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.
65 | P a g ePage 66
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
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).
66 | P a g ePage 67
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.
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.
67 | P a g ePage 68
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.
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.  
68 | P a g ePage 69
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.
69 | P a g ePage 70
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
70 | P a g ePage 71
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
71 | P a g ePage 72
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.
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
72 | P a g ePage 73
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
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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.
74 | P a g ePage 75
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
75 | P a g ePage 76
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
76 | P a g ePage 77
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
77 | P a g ePage 78
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
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.
78 | P a g ePage 79
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.
79 | P a g ePage 80
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.
80 | P a g ePage 81
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 footoverbridge, 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
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.
81 | P a g ePage 82
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
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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 antenatal 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
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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.
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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.
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
85 | P a g ePage 86
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 faceto-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
86 | P a g ePage 87
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
87 | P a g ePage 88
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.
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.
88 | P a g ePage 89
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.
89 | P a g ePage 90
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
90 | P a g ePage 91
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
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.
91 | P a g ePage 92
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 6
th
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
92 | P a g ePage 93
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.
93 | P a g ePage 94
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.
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.
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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
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.
95 | P a g ePage 96
others went back to Azad Maidan police station where they collected two bulletproof 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
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.
96 | P a g ePage 97
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
97 | P a g ePage 98
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,
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)  
98 | P a g ePage 99
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
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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
100 | P a g ePage 101
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.
101 | P a g ePage 102
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
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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
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.
103 | P a g ePage 104
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
104 | P a g ePage 105
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).
105 | P a g ePage 106
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
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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 bulletproof (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
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.
107 | P a g ePage 108
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
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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
109 | P a g ePage 110
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.
110 | P a g ePage 111
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.
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.
111 | P a g ePage 112
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
112 | P a g ePage 113
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.
113 | P a g ePage 114
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.
114 | P a g ePage 115
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
115 | P a g ePage 116
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 Tshirt (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.
116 | P a g ePage 117
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,
117 | P a g ePage 118
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.
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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
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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
120 | P a g ePage 121
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
121 | P a g ePage 122
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.
122 | P a g ePage 123
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 twentysix (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
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.
123 | P a g ePage 124
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
124 | P a g ePage 125
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
125 | P a g ePage 126
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,
32
Their identity was established by DNA profiling of the remains of the bodies found in the destroyed taxi.
126 | P a g ePage 127
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
33
  All calls established through mobile call records.
127 | P a g ePage 128
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,
128 | P a g ePage 129
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,
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.
129 | P a g ePage 130
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.
130 | P a g ePage 131
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.
131 | P a g ePage 132
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
132 | P a g ePage 133
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
133 | P a g ePage 134
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
134 | P a g ePage 135
‘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
37
See letter dated January 5, 2009 from the Chief Investigating Officer to the Police Surgeon, Mumbai, Article 991
135 | P a g ePage 136
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.
38
See Wasim Ahmed Bashiruddin Shaikh (PW-225) and Mohammad Rabiul Mohammad Kiramal Shaikh (PW-176)
136 | P a g ePage 137
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
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.
137 | P a g ePage 138
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
“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”.
138 | P a g ePage 139
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).
42
This was in all probability the explosion of the RDX bomb placed by the terrorists themselves on the fifth floor of
the hotel.
139 | P a g ePage 140
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 residentialcum-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.
43
Both the bombs planted by the terrorists exploded causing considerable damage; see Rambuval Chandrapati
Yadav (PW-202).
140 | P a g ePage 141
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
44
See the evidence of Kazi Zakir Hussain (PW-239).
141 | P a g ePage 142
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.
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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.
143 | P a g ePage 144
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
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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
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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:
146 | P a g ePage 147
293. Exhibit No. 744
1. Seven (7) magazines of black colour. Of them, six (6) contained live rounds
and one (1) was empty
2. One  (1)  cotton  bag  containing  one  hundred  and  thirty-two  (132)  live
cartridges
3. Five (5) hand grenades
4. One (1) bullet bayonet
294. Exhibit No. 746
1) One hundred and fifty (150) pistol empties
2) Six (6) big empties
3) Twenty-eight (28) bullets
4) Ten (10) small empties
5) Twelve (12) big empties
6) Five (5) bullets
7) One (1) grenade pin
8) One (1) small empty
295. Exhibit No. 751
1. Three (3) empties
296. Exhibit No. 752
147 | P a g ePage 148
1. One (1) pistol with magazine
2. One (1) pistol with empty magazine
297. Exhibit No. 757
1. One (1) tin box of size two by four (2x4) inches of explosives
2. Seven (7) empties
298. Exhibit No. 760
1. Four (4) AK-47 (damaged) rifles – one (1) rifle was with magazine
2. Eight (8) magazines of AK 47
3. Two (2) pistols of Star make with one (1) magazine each
4. One (1) separate pistol magazine
5. Eight (8) 9 mm loose cartridges
6. Six (6) 7.62 mm cartridges
7. One (1) 7.62 mm empty
299. Exhibit No. 763
1. One (1) bayonet
2. Two (2) magazines were found in a bag lying in the debris. One of the
magazines contained five (5) live rounds and another magazine contained two
(2) live rounds.
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300. Exhibit No. 910
1. Twenty-one (21) empty cartridges
2. Three (3) live cartridges
3. Six (6) metal pieces
301. Exhibit No. 1125
1. One  (1)  pistol  manufactured  by  Khyber  Arms  Manufacturing  Company,
Peshawar
2. Five (5) magazines of AK-47 rifle, two (2) of them tied with plastic adhesive
tape and the other three (3) loose and in rusted condition
3. Twelve (12) live cartridges
4. Two (2) bayonets
302. The seizure Panchnamas from the other venues of violence are no less full.
303. It may also be noted here that once the terrorists had taken position at their
respective targets of attack it did not prove easy to neutralise them or to take them
out. The Maharashtra police was quite unequal to the task and, consequently,
MARCOS (Naval) Commandos were called in at Hotel Taj. Finally, the whole
operation at all the three places, Hotel Taj, Hotel Oberoi and Nariman House, was
handed over to the National Security Guards who were able to clear the sites but
not  before  the  terrorists  gave  them  a  stiff  resistance.  The  second  of  the  two
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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 twentyseven (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
150 | P a g ePage 151
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
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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
152 | P a g ePage 153
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,
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
153 | P a g ePage 154
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.
and catch him and not allow him to flee.
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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
155 | P a g ePage 156
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
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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
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.
157 | P a g ePage 158
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.
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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
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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
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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*
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.
161 | P a g ePage 162
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:
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.
162 | P a g ePage 163
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.
163 | P a g ePage 164
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)
51
Vermicelli
164 | P a g ePage 165
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)
165 | P a g ePage 166
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:
166 | P a g ePage 167
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
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).
167 | P a g ePage 168
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.
168 | P a g ePage 169
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
169 | P a g ePage 170
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
170 | P a g ePage 171
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.
171 | P a g ePage 172
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
172 | P a g ePage 173
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
173 | P a g ePage 174
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
174 | P a g ePage 175
Federal Bureau of Investigation
11000 Wilshire Blvd., 17
th
 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
175 | P a g ePage 176
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
176 | P a g ePage 177
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
177 | P a g ePage 178
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
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.
178 | P a g ePage 179
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.
179 | P a g ePage 180
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  coconspirators 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
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
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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
181 | P a g ePage 182
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
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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.
183 | P a g ePage 184
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.
184 | P a g ePage 185
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
185 | P a g ePage 186
noted above, was (201)253-1824 in November, 2008). He explained that the carrier
could  suppress  the  number  but  the  user  had  no  control  over  their  number
[(201)253-1824]. He further said that they had numbers from different countries.
Some of them were US-based and their customers could make calls to mobile
numbers through VoIP.
374. He further said before the court that one person calling himself  Kharak
Singh (wanted accused No. 21) had contacted them through email and had told
them that he was a reseller of VoIP services. Kharak Singh had contacted them on
October 20, 2008, by email. After correspondence with  Kharak Singh on email
they had provided him fifteen (15) PC2Phone accounts, ten (10) Common Client
accounts and five (5) DID Austrian phone numbers. The email ID of Kharak Singh
was     Kharak-telco@yahoo.com. No  specific  address  was  provided  by  Kharak
Singh. He had only said that he was from India. The mails received from Kharak
Singh were replied to by Nizar Al Sharif personally. The first payment made by
Kharak Singh was of 250 US dollars and it was received through Moneygram from
Pakistan. The payment was made by some Mohammed Isfaq. On being shown a
copy of the receipt of the Moneygram, Al Sharif identified it and it was then taken
in evidence as Article 530. The second payment of 229 US dollars was received
through Western Union. He identified the receipt of this payment as well, which
was marked Article 531.
186 | P a g ePage 187
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. 27
th
 October, 2008, and copy
of Western Union receipt dt. 25
th
 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
187 | P a g ePage 188
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:-
188 | P a g ePage 189
“The FBI determined that the kharak_telco@yahoo.com account was
created  on  October  20,  2008,  via  Internet  Protocol  (IP)  address
66.90.73.125. Between October 20, 2008, and November 28, 2008, a
user  with  access  to  this account  logged in from the following  IP
addresses, which, according to open-source information, resolve to the
corresponding geographic locations:
IP Addresses Location
58.27.167.153 (Pakistan)
66.90.73.125 (U.S. – apparent proxy)
67.159.44.63 (U.S. – apparent proxy)
80.78.132.155 (Kuwait)
82.114.138.18 (Russia – apparent proxy)
82.114.141.99 (Russia – apparent proxy)
118.107.140.138 (Pakistan)
203.81.224.201 (Pakistan)
203.81.224.202 (Pakistan)
203.81.224.203 (Pakistan)
Singh’s Callphonex account has been inactive since November 28,
2008. Callphonex closed Singh’s account because there has been no
payment,  no  activity  and  no  communication  from  him  since
November 28, 2008.”
379. It is noted above that among the documents furnished by Nizar Al Sharif to
the FBI there were three chat logs between a representative of Callphonex and
Kharak Singh and the e-mails between Kharak Singh and Callphonex.
380. Mr. Gopal Subramanium, in his meticulous and painstaking way, took us
through the three chat logs and the e-mails exchanged between Kharak Singh and
Callphonex. We have no doubt that even in the three chat logs it is not the same
person who is chatting under the fictitious name of Kharak Singh. That the persons
189 | P a g ePage 190
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
190 | P a g ePage 191
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
191 | P a g ePage 192
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
192 | P a g ePage 193
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
2
nd
 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,
193 | P a g ePage 194
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.
194 | P a g ePage 195
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.
55
Described in the transcripts of intercepted calls from Hotel Taj: Talk no.2
195 | P a g ePage 196
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
196 | P a g ePage 197
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
197 | P a g ePage 198
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!]
198 | P a g ePage 199
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,
199 | P a g ePage 200
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?]
200 | P a g ePage 201
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.]
201 | P a g ePage 202
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.
202 | P a g ePage 203
(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.
203 | P a g ePage 204
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.
204 | P a g ePage 205
[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.]
205 | P a g ePage 206
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.
206 | P a g ePage 207
[(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.]
207 | P a g ePage 208
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.
208 | P a g ePage 209
[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.]
209 | P a g ePage 210
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.]
210 | P a g ePage 211
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.
211 | P a g ePage 212
[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.
212 | P a g ePage 213
[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.
213 | P a g ePage 214
[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.
214 | P a g ePage 215
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
215 | P a g ePage 216
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
216 | P a g ePage 217
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.
217 | P a g ePage 218
[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.
218 | P a g ePage 219
[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.
219 | P a g ePage 220
[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.
220 | P a g ePage 221
[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.
221 | P a g ePage 222
[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
222 | P a g ePage 223
[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.]
223 | P a g ePage 224
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.]
224 | P a g ePage 225
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.]
225 | P a g ePage 226
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.]
226 | P a g ePage 227
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.
227 | P a g ePage 228
[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.
228 | P a g ePage 229
[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.
229 | P a g ePage 230
[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.]
230 | P a g ePage 231
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’)
231 | P a g ePage 232
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.]
232 | P a g ePage 233
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.]
233 | P a g ePage 234
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.]
234 | P a g ePage 235
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?
235 | P a g ePage 236
[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?]
236 | P a g ePage 237
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
237 | P a g ePage 238
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.
238 | P a g ePage 239
[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.
239 | P a g ePage 240
[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.
240 | P a g ePage 241
[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.
241 | P a g ePage 242
[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.
242 | P a g ePage 243
[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.
243 | P a g ePage 244
[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
244 | P a g ePage 245
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,
245 | P a g ePage 246
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
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)
246 | P a g ePage 247
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
59
Hotel Oberoi, Talk No. 4 (Ext. no. 979)
60
Hotel Taj, Talk No. 3 (Ext. No. 970)
247 | P a g ePage 248
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
248 | P a g ePage 249
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 sidestep 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
249 | P a g ePage 250
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
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, 2
nd
paragraph, 654)
68
(1985) 3 SCC 545 (paragraph 28 and 29, page 569, 570)
250 | P a g ePage 251
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.
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.
251 | P a g ePage 252
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
70
(1978) 2 SCC 424
71
384 US 436 (1966)
252 | P a g ePage 253
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
72
(1981) 1 SCC 627
73
(2005) 11 SCC 600
253 | P a g ePage 254
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
74
(1994) 3 SCC 569
75
(1997) 1 SCC 416
254 | P a g ePage 255
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
255 | P a g ePage 256
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
76
(2010) 7 SCC 263
256 | P a g ePage 257
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,
257 | P a g ePage 258
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.
258 | P a g ePage 259
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
259 | P a g ePage 260
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 reexamination 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:
260 | P a g ePage 261
“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
261 | P a g ePage 262
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,
262 | P a g ePage 263
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
263 | P a g ePage 264
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 subsections (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:
264 | P a g ePage 265
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
77
[1962] 3 SCR 10
265 | P a g ePage 266
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
266 | P a g ePage 267
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.  
267 | P a g ePage 268
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
268 | P a g ePage 269
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
78
512 US 452 (1993)
269 | P a g ePage 270
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.
79
130 S.Ct. 2250 (2010) [State Compilation 1, pg. 138]
80
130 S.Ct. 2250 at 2260 (2010) [State Compilation 1, pg. 151]
270 | P a g ePage 271
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,
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
271 | P a g ePage 272
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
86
(1992) 3 SCC 259
87
(2011) 12 SCC 362
272 | P a g ePage 273
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 selfincrimination 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
273 | P a g ePage 274
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.
274 | P a g ePage 275
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 selfincrimination 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.
275 | P a g ePage 276
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. … …   …
276 | P a g ePage 277
….. 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
88
AIR 1957 SC 637 (644)
277 | P a g ePage 278
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; subsection (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.
278 | P a g ePage 279
455. It is thus clear to us that the protection to the accused against any selfincrimination 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
279 | P a g ePage 280
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. Overreaching 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.”
280 | P a g ePage 281
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
281 | P a g ePage 282
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:
282 | P a g ePage 283
“…..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)
89
309 US 227: 84 L Ed 716: 60 S Ct 472 (1940)
283 | P a g ePage 284
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),
90
384 US 436: 16 L Ed 2d 694 (1966)
91
378 US 478: 12 L Ed 2d 977 (1964)
284 | P a g ePage 285
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 selfincrimination 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.
285 | P a g ePage 286
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
286 | P a g ePage 287
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
287 | P a g ePage 288
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
288 | P a g ePage 289
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 (42
nd
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
92
AIR 1952 SC 75
289 | P a g ePage 290
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.
290 | P a g ePage 291
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.
291 | P a g ePage 292
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.”
93
(1980) 1 SCC 98
292 | P a g ePage 293
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.”
94
Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, (1980) 1 SCC 98
293 | P a g ePage 294
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
294 | P a g ePage 295
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.
295 | P a g ePage 296
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?
296 | P a g ePage 297
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.
95
(1986) 2 SCC 401
297 | P a g ePage 298
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
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.
298 | P a g ePage 299
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
299 | P a g ePage 300
that the appellant had requested a Pakistani lawyer. On December 29, 2008, the
Additional Chief Metropolitan Magistrate 37
th
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,
300 | P a g ePage 301
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
301 | P a g ePage 302
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.  
302 | P a g ePage 303
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.
303 | P a g ePage 304
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
304 | P a g ePage 305
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
97
Criminal Appeal No.284 of 1968, decided on December 17, 1968
98
(1969) 1 SCR 32
305 | P a g ePage 306
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-
99
(1974) 3 SCC 581 (para 1)
306 | P a g ePage 307
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.
307 | P a g ePage 308
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
308 | P a g ePage 309
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
309 | P a g ePage 310
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
310 | P a g ePage 311
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.
311 | P a g ePage 312
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
312 | P a g ePage 313
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.
313 | P a g ePage 314
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
314 | P a g ePage 315
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
315 | P a g ePage 316
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.
316 | P a g ePage 317
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
317 | P a g ePage 318
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.
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.
318 | P a g ePage 319
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
319 | P a g ePage 320
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 SubInspector 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.
320 | P a g ePage 321
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
321 | P a g ePage 322
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 handprepared 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.”
322 | P a g ePage 323
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
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.
323 | P a g ePage 324
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 firearms 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.
324 | P a g ePage 325
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.
325 | P a g ePage 326
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 coconspirators 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
102
(1999) 5 SCC 253 (para 111)
326 | P a g ePage 327
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
327 | P a g ePage 328
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
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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
329 | P a g ePage 330
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
330 | P a g ePage 331
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
103
2011 (8) SCALE 328
331 | P a g ePage 332
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
332 | P a g ePage 333
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
333 | P a g ePage 334
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
334 | P a g ePage 335
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:
335 | P a g ePage 336
 “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.”
336 | P a g ePage 337
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
337 | P a g ePage 338
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.
338 | P a g ePage 339
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.
339 | P a g ePage 340
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.
340 | P a g ePage 341
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
341 | P a g ePage 342
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 twentyone (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
342 | P a g ePage 343
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-eToiba 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
343 | P a g ePage 344
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
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.
344 | P a g ePage 345
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
345 | P a g ePage 346
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
105
(1980) 2 SCC 684
106
(1983) 3 SCC 470
346 | P a g ePage 347
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
347 | P a g ePage 348
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.”
348 | P a g ePage 349
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.
349 | P a g ePage 350
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.  
350 | P a g ePage 351
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
351 | P a g ePage 352
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
352 | P a g ePage 353
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
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
353 | P a g ePage 354
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
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
354 | P a g ePage 355
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
355 | P a g ePage 356
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.
356 | P a g ePage 357
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.
357 | P a g ePage 358
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
358 | P a g ePage 359
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
359 | P a g ePage 360
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.
360 | P a g ePage 361
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
361 | P a g ePage 362
   SCHEDULE I
LIST OF PERSONS KILLED
Sr. No. NAME
POLICE/
SECURITY
FORCE/
CIVILIAN
NATIONALITY
KUBER
1 Amarchand Naran Solanki Civilian Indian
CST
2 Shashank Chandrasen Shinde
Police
(Inspector)
Indian
3 Hamina Begum Hamid Shaikh Civilian Indian
4 Ashraf Ali Allahrakha Shaikh Civilian Indian
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 Garib Civilian Indian
362 | P a g ePage 363
Mourya
11 Vinod Madanlal Gupta Civilian Indian
12 Sunil Ashok Thackare Civilian Indian
13 Haji Ejaj Bhai Imamsaheb Dalal Civilian Indian
14 Mira Narayan Chattarji Civilian Indian
15 Shirish Sawla Chari Civilian Indian
16
Sushilkumar Vishwambhar
Sharma
Civilian Indian
17 Murlidhar Laxman Choudhary
Railway Protection
Force
(Constable)
Indian
18 Ambadas Ramchandra Pawar
Police
(Constable)
Indian
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
Raheman Shaikh
Civilian Indian
24 Prakash Janath Mandal Civilian Indian
363 | P a g ePage 364
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
Alamgir Shaikh
Civilian Indian
34 Murtaza Ansari Sallauddin Ansari Civilian Indian
35
Mohamad Arif Mohamed Islam
Ansari
Civilian Indian
36 Mohamad Mukhtar Malik Civilian Indian
37 Abbas Rajjab Ansari Civilian Indian
38 Unknown Male person Civilian Indian
39
Mrs.Gangabai Baburao
Kharatmol
Civilian Indian
40 Narul Islam Ajahar Mulla Civilian Indian
364 | P a g ePage 365
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
(Sub-Inspector)
Indian
55 Vijay Madhukar Khandekar
Police
(Constable)
Indian
56 Baban Balu Ughade Civilian Indian
365 | P a g ePage 366
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
(Joint Commissioner,
ATS)
Indian
62 Ashok Marutirao Kamate
Police
(Additional
Commissioner – East
Region)
Indian
63 Vijay Sahadev Salaskar
Police
(Inspector)
Indian
64 Bapurao Sahebrao Durgude
Police
(Sub-Inspector)
Indian
65
Balasaheb @ Nana Chandrakant
Bhosale
Police
(Assistant SubInspector)
Indian
66 Arun Raghunath Chite
Police
(Constable)
Indian
67 Jayawant Hanumant Patil Police Indian
366 | P a g ePage 367
(Constable)
68 Yogesh Shivaji Patil
Police
(Constable)
Indian
69 Surendrakumar Bindu Rama Civilian Indian
VINOLI CHOWPATY
70 Tukaram Gopal Ombale
Police
(Assistant SubInspector)
Indian
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 Khan Civilian Indian
76 Harishbhai Durlabbhai Gohil Civilian Indian
77 Hidayatullah Anwarali Kazi Civilian Indian
78 Malyesh Manvendra Banarjee Civilian Indian
79 Gourav Balchand Jain Civilian Indian
367 | P a g ePage 368
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 Shaikh Civilian Indian
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
(Constable)
Indian
89
Zaheen Sayyed Nisar Ali Jafary
Mateen
Civilian Indian
90 Andres Don Livera Civilian British
91 Gunjan Vishandas Narang Civilian Indian
92 Vishandas Giridharidas Narang Civilian Indian
93 Vijayrao Anandrao Banja Civilian Indian
368 | P a g ePage 369
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
Shaukatali
Civilian Indian
99 Faustine Basil Martis Civilian Indian
100 Kaizad Naushir Kamdin Civilian Indian
101 Neelam Vishandas Narang Civilian Indian
102 Rupinder Devenersing Randhava Civilian Indian
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
369 | P a g ePage 370
111
Samarveer Singh Karamveer
Singh Kang
Civilian Indian
112
Udaysingh Karamveer Singh
Kang
Civilian Indian
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
Harharwala
Civilian Indian
125 Rivka Gavriel Holtzberg Civilian Israeli
370 | P a g ePage 371
126 Rabbi Gavriel Noach Holtzberg Civilian Israeli
127 Gajendra Singh Security Force Indian
128 Ben Zion Chroman Civilian Israeli
129 Norma Shvarzblat Robinovich Civilian Mexican
130 Rajendrakumar Baburam Sharma Civilian Indian
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
371 | P a g ePage 372
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
372 | P a g ePage 373
159 Jordan Geigy Fernandise Civilian Indian
160 Neeta Prakash Gaikwad Civilian Indian
161 Shaunak Jayawant Chemburkar Civilian Indian
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/
SECURITY
FORCE/
CIVILIAN
NATIONALITY
CST
1
Mukesh Bhagwatprakash
Agarwal
Civilian Indian
2 Nisha Anilkumar Yadav Civilian Indian
3 JangamVithalrao Bokade Civilian Indian
373 | P a g ePage 374
4 Parasnath Ramsoman Giri
Railway Protection
Force
(Head Constable)
Indian
5
Firoz Khan Khushnur Khan
Ghouri
Railway Protection
Force
(Constable)
Indian
6 Raziyabegum Noor Qureshi Civilian Indian
7 Sarita Shantaram Harkulkar Civilian Indian
8 Neeta Gajanan Kurhade Civilian Indian
9 Ajamat Ali Narhu Sha Civilian Indian
10 Maltidevi Madan Gupta Civilian Indian
11
Sulochana Chandrakant
Lokhande
Civilian Indian
12 Vijay Ramchandra Khote Civilian Indian
13 Mumtaz Mohd. Yusuf Khan Civilian Indian
14 Pappu Laldev Jawahar Laldev Civilian Indian
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
374 | P a g ePage 375
19 Mahadev Datta Petkar Civilian Indian
20
Santoshkumar Faujdarsing
Yadav
Civilian Indian
21 Miraj Alam Ali Mulla Ansari Civilian Indian
22 Abdul Rashid Abdul Aziz Civilian Indian
23 Abdul Salam Shaikh S. Qureshi Civilian Indian
24 Akhilesh Dyanu Yadav Civilian Indian
25 Ramzan Sahrif Kadar Sharif Civilian Indian
26
Mohd. Siddiqu Mohd. Sagir
Alam
Civilian Indian
27
Sachinkumar Singh
Santoshkumar Singh
Civilian Indian
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
375 | P a g ePage 376
Lokhande
35 Abdul Razak Farukh Nasiruddin Civilian Indian
36 Afroz Abbas Ansari Civilian Indian
37 Dadarao Rambhoji Jadhav Civilian Indian
38 Suryabhan Sampat Gupta Civilian Indian
39
Jagendrakumar Kailashkumar
Mishra
Civilian Indian
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
376 | P a g ePage 377
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 Virendra Civilian Indian
56 Priyanka Chitaranjan Giri Civilian Indian
57 Imran Shakur Bhagwan Civilian Indian
58 Rekha Shyam Rathod Civilian Indian
59 Barjrang Jaykaran Prajapati Civilian Indian
60 Satyanand Karunakaro Behra Civilian Indian
61 Manoj Prafulchandra Kanojia Civilian Indian
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
377 | P a g ePage 378
68 Tapasi Taramniggam Nadar Civilian Indian
69
Sayyed Shahnavaz Sayyed
Salim Mujawar
Civilian Indian
70 Arvind Gopinath Bhalekar Civilian Indian
71 Shivram Vijay Sawant Civilian Indian
72 Ashok Shivram Patil Civilian Indian
73 Bharat Ramchandra Bhosale
Government Railway
Police
(Assistant Inspector)
Indian
74 Devika Natvarlal Rotawan Civilian Indian
75 Farukh Nasiruddin Khaliluddin Civilian Indian
76 Nafisa Sadaf Qureshi Civilian Indian
77 Kishor Vinayak Kale Civilian Indian
78 Sudama Aba Pandarkar
Government Railway
Police
(Assistant SubInspector)
Indian
79 Pandurang Subrao Patil
Government Railway
Police
(Assistant SubInspector)
Indian
80 Punamsingh Santosh Singh Civilian Indian
81 Vishal Prakash Kardak Civilian Indian
378 | P a g ePage 379
82 Sangita Niranjan Sardar Civilian Indian
83 Niranjan Sadashiv Sardar Civilian Indian
84
Ansarallh Saudaarallh Baksh
Mohd. Hanif
Civilian Indian
85 Harshada Suhas Salaskar Civilian Indian
86 Pappusing Mannusingh Civilian Indian
87 Habibul Mohd. Sukurddin Khan Civilian Indian
88 Anilkumar Rajendra Yadav Civilian Indian
89 Laji Jagganath Pandye Civilian Indian
90 Sanjay Nemchandra Yadav Civilian Indian
91
Ratankumarji Kanhayaprasad
Yadav
Civilian Indian
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
379 | P a g ePage 380
98 Murlidhar Chintu Jhole
Police
(Head Constable)
Indian
99 Balu Bandu More
Police
(Constable)
Indian
100 Prakash Sohanlal Phalore Civilian Indian
101 Ramji Yabad Napit
Railway Protection
Force
(Assistant SubInspector)
Indian
102
Vishveshwar Shishupal
Pacharane
Home Guard Indian
103 Adhikrao Gyanu Kale
Government Railway
Police
(Head Constable)
Indian
104 Uttam Vishnu Sasulkar Home Guard Indian
105 Vijaya Ramkomal Kushwah Civilian Indian
106 Bharat Shyam Nawadia Civilian Indian
107 Anilkumar Dyanoji Harkulkar Civilian Indian
108 Sadahiv Chandrakant Kolke Civilian Indian
109 Prashant Purnachandra Das Civilian Indian
380 | P a g ePage 381
CAMA-IN
110
Harischandra Sonu
Shrivardhankar
Civilian Indian
111 Chandrakant Gyandev Tikhe Civilian Indian
112
Kailash Chandrabhan
Ghegadmal
Civilian Indian
113 Vijay Abaji Shinde
Police
(Assistant Inspector)
Indian
114 Sadanand Vasant Date
Police
(Additional
Commissioner)
Indian
115 Vijay Tukaram Powar
Police
(Assistant Inspector)
Indian
116 Sachin Dadasaheb Tilekar
Police
(Constable)
Indian
117 Mohan Gyanoba Shinde
Police
(Head Constable)
Indian
118 Hirabai Vilas Jadhav Civilian Indian
119
Vinayak Chintaman
Dandgawhal
Police
(Constable)
Indian
CAMA-OUT
120 Arun Dada Jadhav
Police
(Naik)
Indian
381 | P a g ePage 382
121 Maruti Mahdevrao Phad Civilian Indian
122 Anil Mahadev Nirmal Civilian Indian
123 Shankar Bhausaheb Vhande
Police
(Constable)
Indian
124 Prashant Sadashiv Koshti Civilian Indian
125 Mohd. Asif Abdul Gani Memon Civilian Indian
126 Kalpanth Jitai Singh Civilian Indian
VINOLI CHOWPATY
127 Sanjay Yeshwant Govilkar
Police
(Assistant Inspector)
Indian
VILE PARLE BLAST
128 Roldan Glandson Ayman Civilian Indian
129 Shyam Sunder Choudhary Civilian Indian
130 Balkrishna Ramchandra Bore Civilian Indian
LEOPOLD CAFÉ
131 Munira-ul Rayesi Civilian Oman
132 Faizal Miran Sabil-ul Gidgali Civilian Oman
133 Asma-un Rayesi Civilian Oman
382 | P a g ePage 383
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 Dattaji Civilian Indian
140 Bhaskar Paddu Dewadiga Civilian Indian
141 Benjamin Jerold Methis Civilian German
142 Pravin Pandurang Sawant
Police
(Naik)
Indian
143 Kunal Prakash Jaiswani Civilian Indian
144 Ransale Gilbert Santhumayor Civilian Indian
145 Ijas Abdul Karupadan Kuddi Civilian Indian
146 Nilesh Mahendra Gandhi Civilian Indian
147 Prakash Satan Bharwani Civilian Indian
148 Ramchandra Selumadhav Nair Civilian Indian
149 Bharat Sasuprasad Gujar Civilian Indian
150 Rasika Krushna Sawant Civilian Indian
383 | P a g ePage 384
151 Mohd. Parvez Aslam Ansari Civilian Indian
152
Mohd. Ayub Mohd. Abdul
Ansari
Civilian Indian
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
(Naik)
Indian
158 Katherin Austin Civilian Australian
MAZGAON BLAST
159
Rajendraprasad Ramchandra
Maurya
Civilian Indian
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
384 | P a g ePage 385
166 Jasmin Babu Shaikh Civilian Indian
167 Imran Mohd. Shafi Pathari Civilian Indian
168
Manoharabegum Ali Ahmed
Shaikh
Civilian Indian
169 Hawa Abdul Salim Shaikh Civilian Indian
170 Sanju Kurshna Ghorpade Civilian Indian
171 Manorabagum Ali Akbar Shaikh Civilian Indian
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
Paswan
Civilian Indian
HOTEL TAJ
178 Deepak Narsu Dhole
Police
(Inspector)
Indian
179 Samadhan Shankar More
State Reserve Police
Force
Indian
180 Sanjay Uttam Gomase State Reserve Police Indian
385 | P a g ePage 386
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 Police
Force
Indian
194 K.R. Rammurthi Civilian Indian
195 Adil Rohengtan Irani Civilian Indian
196 Ashish Ankush Patil Civilian Indian
386 | P a g ePage 387
197 Nitin Digamber Kakade
Police
(Sub-Inspector)
Indian
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 Chawan Civilian Indian
203 Amit Raghnuath Khetle
Police
(Constable)
Indian
204 Ashok Laxman Pawar
Police
(Naik)
Indian
205 Arun Sarjerao Mane
Police
(Naik)
Indian
206 Saudagar Nivrutti Shinde
Police
(Constable)
Indian
207 Shankar Shamrao Pawar
Police
(Constable)
Indian
NARIMAN HOUSE
208 Prakash Rawji Surve Civilian Indian
209 Bablu Rajsing Yallam Civilian Indian
210 Sanjay Laxman Katar Civilian Indian
387 | P a g ePage 388
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
388 | P a g ePage 389
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 Vyas Civilian Indian
232 Imran Jan Mohd. Merchant Civilian Indian
233 Appasaheb Maruti Patil Civilian Indian
234 Anil Bhaskar Kolhe
State Reserve Police
Force
Indian
235 Gangaram Suryabhan Borde Civilian Indian
236 Ranjit Jagganath Jadhav
State Reserve Police
Force
Indian
237 Joseph Joy Pultara Civilian Indian
238 Virendra Pitamber Semwal Civilian Indian
389 | P a g ePage 390
   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
390 | P a g ePage 391
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
391 | P a g ePage 392
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
392 | P a g ePage 393
34 Abu Imran
35 Hakim Saheb
393 | P a g ePage 394
   SCHEDULE III
DNA EVIDENCE
SR. NO.
NAME OF THE
TERRORIST
FORWARDING
LETTER TO FSL
FOR DNA
PROFILING
ARTICLES SEIZED
DURING
INVESTIGATION IN
M.V. KUBER
OPINION
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 Colly.)
The DNA profile from the control 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 Colly.)
The DNA profile from the control sample
matched with the DNA profile from sweat
detected on Monkey cap – report is Exhibit No.
205-E
394 | P a g ePage 395
5. Abu Omair Exhibit No. 671 Colly Jacket (Art. 186 Colly.)
The DNA profile from the control sample
matched with the DNA profile from sweat
detected on jacket – report is Exhibit No. 205-G
6. Abdul Rehman Bada – – –
7.
Abdul Rehman
Chhota
Exhibit No. 665 Israeli Cap (Art. 187 Colly.)
The DNA profile from the control 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 Colly. Handkerchief (Art. 206)
The DNA profile from the control sample
matched with the DNA profile from sweat
detected on handkerchief – report is Exhibit No.
205-C
10. Abu Soheb Exhibit No. 671 Colly. – –
395 | P a g ePage 396
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
396 | P a g ePage 397
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
397 | P a g ePage 398
of Mumbai, were executed by the appellant in furtherance
thereof.
    …………………………………………………………J.
   (CHANDRAMAULI KR. PRASAD)
NEW DELHI,
AUGUST 29,2012.
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