# ABU MUJAHID v. STATE OF MAHARASHTRA

- **Citation:** [2012] 8 S.C.R. 295
- **Court:** Supreme Court of India
- **Decided:** 2012-08-29
- **Case number:** Criminal Appeal Nos. 1899-1900 of 2011
- **Bench:** Aftab Alam, Chandramauli Kr. Prasad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abu-mujahid-v-state-of-maharashtra-28512
- **Pages:** 356

## Headnote

PENAL CODE, 1860:
c
ss. 302, 302 read with s.34 and s.302 read with ss.109,
120-B, 121, 121-A and 122 /PC and s.16 of Unlawful Activities
(Prevention) Act, 1967 - 26111 (2008) terrorists' attack on
Mumbai at targeted places by appellant (A-1) along with 9 D
other terrorists (dead accused), in furtherance of a conspiracy
to wage war against Government of India - 166 people killed
and 238 injured - Trial court holding the appellant guilty of
the offences charged and awarding him five death sentences
- Convictions and sentences confirmed by High Court - Held: E
On the basis of ocular evidence alone, the appellant
personally and jointly with deceased accused-1 (DA-1) is
directly responsible for killing 72 persons and causing injuries
of various kinds to 130 persons - He was also found guilty
along with other dead accused as a co-conspirator -
Conviction and sentences awarded by trial court and
F
confirmed by High Court are affirmed - As regards A-2 and
A-3, when the attack on Mumbai took place, they were in
custody of U.P. Police in connection with a different terrorist
attack - Both the courts have analyzed the prosecution
evidence in regard to A-2 and A-3 at great length and have G
given very good reasons to hold the prosecution evidence
unworthy of reliance with respect to such grave charges
against the two accused - Both the courts have rightly
295
H
296
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A acquitted A-2 and A-3 of all the charges - Unlawful Activities
(Prevention) Act, 1967 - s.16.
ss. 120-8, 121, 121-A and 302- Criminal conspiracy and
conspiracy to wage war against Government of India -
8
Terrorists' attack in furtherance of conspiracy to wage war
against Government of India -
10 terrorists dividing
themselves in 5 teams of 2 each and attacking at targeted
places in Mumbai - Plea that appellant's case should be
considered only with respect to the incidents in which he was
C personally involved - Held: In view of the incidents at the
venues of terrorists' attack and the conspirators across the
border being in constant contact with terrorists, it is obvious
that all the ten terrorists were bound together and each team
was acting in execution of a common conspiracy - In view of
the enormous evidence of all possible kinds including the
D recoveries made, it is clear that the terrorists' attack on
Mumbai was in pursuance of a larger conspiracy of which the
appellant was as much part as the 9 dead accused and other
wanted accused persons - The attacks at all the targets were
integrally connected with each other and the appellant and his
E deceased accomplice are as much part of the offences
committed at other places as they are responsible for the
offences committed by them directly - The most clinching
evidence regarding conspiracy comes from recording of
intercepted telephone calls between the terrorists and their coF conspirators and collaborator sitting in a foreign land, which
in the light of all facts and circumstances of the case can only
be Pakistan - Evidence Act, 1872 - s.10.
ss.121, 121-A and 122 - "Waging war against the
G Government of India" - Conspiracy -Terrorists' attack on
Mumbai - Expressions "offences against the State" and ''in
like manner and by like means as a foreign enemy would do"
- Connotation of - Held: The expression "Government of
India''. as appearing in s.121, must be held to mean the State
H or interchangeably the people of the country as the repository
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 297
MUJAHID v. STATE OF MAHARASHTRA
of the sovereignty of India which is manifested and expressed A
through the elected Government - It does riot matter that the
target assigned to the appellant and DA-1 was a public
building where they killed a large number of people - What
matters is that the attack was aimed at India and Indians - It
was by foreign nationals - People were killed for no other s
reason than they were Indians -
In case of foreigners, they
were killed because their killing on Indian soil wo

## Text

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[2012] 8 S.C.R. 295
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @
A
ABU MUJAHID
v.
STATE OF MAHARASHTRA
(Criminal Appeal Nos. 1899-1900 of 2011 etc.)
AUGUST 29, 2012
B
[AFTAB ALAM AND CHANDRAMAULI
KR. PRASAD, JJ.]
PENAL CODE, 1860:
c
ss. 302, 302 read with s.34 and s.302 read with ss.109,
120-B, 121, 121-A and 122 /PC and s.16 of Unlawful Activities
(Prevention) Act, 1967 - 26111 (2008) terrorists' attack on
Mumbai at targeted places by appellant (A-1) along with 9 D
other terrorists (dead accused), in furtherance of a conspiracy
to wage war against Government of India - 166 people killed
and 238 injured - Trial court holding the appellant guilty of
the offences charged and awarding him five death sentences
- Convictions and sentences confirmed by High Court - Held: E
On the basis of ocular evidence alone, the appellant
personally and jointly with deceased accused-1 (DA-1) is
directly responsible for killing 72 persons and causing injuries
of various kinds to 130 persons - He was also found guilty
along with other dead accused as a co-conspirator -
Conviction and sentences awarded by trial court and
F
confirmed by High Court are affirmed - As regards A-2 and
A-3, when the attack on Mumbai took place, they were in
custody of U.P. Police in connection with a different terrorist
attack - Both the courts have analyzed the prosecution
evidence in regard to A-2 and A-3 at great length and have G
given very good reasons to hold the prosecution evidence
unworthy of reliance with respect to such grave charges
against the two accused - Both the courts have rightly
295
H
296
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A acquitted A-2 and A-3 of all the charges - Unlawful Activities
(Prevention) Act, 1967 - s.16.
ss. 120-8, 121, 121-A and 302- Criminal conspiracy and
conspiracy to wage war against Government of India -
8
Terrorists' attack in furtherance of conspiracy to wage war
against Government of India -
10 terrorists dividing
themselves in 5 teams of 2 each and attacking at targeted
places in Mumbai - Plea that appellant's case should be
considered only with respect to the incidents in which he was
C personally involved - Held: In view of the incidents at the
venues of terrorists' attack and the conspirators across the
border being in constant contact with terrorists, it is obvious
that all the ten terrorists were bound together and each team
was acting in execution of a common conspiracy - In view of
the enormous evidence of all possible kinds including the
D recoveries made, it is clear that the terrorists' attack on
Mumbai was in pursuance of a larger conspiracy of which the
appellant was as much part as the 9 dead accused and other
wanted accused persons - The attacks at all the targets were
integrally connected with each other and the appellant and his
E deceased accomplice are as much part of the offences
committed at other places as they are responsible for the
offences committed by them directly - The most clinching
evidence regarding conspiracy comes from recording of
intercepted telephone calls between the terrorists and their coF conspirators and collaborator sitting in a foreign land, which
in the light of all facts and circumstances of the case can only
be Pakistan - Evidence Act, 1872 - s.10.
ss.121, 121-A and 122 - "Waging war against the
G Government of India" - Conspiracy -Terrorists' attack on
Mumbai - Expressions "offences against the State" and ''in
like manner and by like means as a foreign enemy would do"
- Connotation of - Held: The expression "Government of
India''. as appearing in s.121, must be held to mean the State
H or interchangeably the people of the country as the repository
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 297
MUJAHID v. STATE OF MAHARASHTRA
of the sovereignty of India which is manifested and expressed A
through the elected Government - It does riot matter that the
target assigned to the appellant and DA-1 was a public
building where they killed a large number of people - What
matters is that the attack was aimed at India and Indians - It
was by foreign nationals - People were killed for no other s
reason than they were Indians -
In case of foreigners, they
were killed because their killing on Indian soil would
embarrass India - The conspiracy, in furtherance of which the
attack was made, was, inter alia, to hit at India; to hit at its
financial centre; to try to give rise to communal tensions and c
create internal strife and insurgency; to demand that India
should withdraw from Kashmir; andto dictate its relations with
other countries - It was in furtherance of those objectives that
the attack was made, causing the loss of a large number of
people and injury to an even greater number of people -
D
Nothing could have been more "in like manner and by like
means as a foreign enemy would do" - Appellant has been
rightly held guilty of waging war against Government of India
and rightly convicted u/ss 121, 121-A and 122 - Death penalty
for an offence u/s 121, upheld - International Law.
E
SENTENCE/SENTENCING:
Terrorists' attack on Mumbai - Trial court sentencing the
appellant to death - High Court confirming the sentence -
Held: The case has shocked the collective conscience of F
Indian people - It was a case of waging war against
Government of India - The number of persons killed and
injured is staggeringly high - The number of policemen and
security forces killed and injured in the course of their duty
by the appeJlant and his accomplice and 8 other coG
conspirators would hardly find a match in any other cases -
The offence committed by the appellant show a degree of
cruelty, brutality and depravity as in very few other cases - The
appellant and his co-conspirators used highly lethal weapons
and explosives - It is a case of terrorists' attack from across
H
298
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A the borer - It has a magnitude of unprecedented enormity on
all scales - In terms of loss of life and property and, more
importantly in its traumatizing effect, this case stands alone
or at/east it is the vety rarest of rare to come before the Court
since the birth of republic - Therefore, it should also attract
s the rarest of rare punishment - Appellant never showed any
repentance or remorse, which is the first sign of any possibility
of reform and rehabilitation - The only mitigating factor is
appellant's young age, but that is completely offset by the
absence of any remorse on his part and the resultant finding
C that in his case, there is no possibility of any reformation or
rehabilitation - In the facts of the case, death penalty is the
only sentence that can be given to the appellant - The
convictions and sentences of the appellant passed by trial
court and confirmed by High Court are affirmed.
D
CONSTITUTION OF IND/A, 1950:
Arts. 20(3), 21 of the Constitution and s.164, CrPC - Right
against self-incrimination - Voluntaty confession - Held: Right
against self-incrimination under Art. 20(3) has been statutorily
E incorporated in the provisions of ss.161, 162, 163 and 164
CrPC and the Evidence Act, as manifestations of enforceable
due process, and thus compliance with statutoty provision is
also compliance with constitutional requirements - Right
against self-incrimination under Art. 20(3) does not proscribe
F
vo/untaty statements made in exercise offree will and volition
- Code of Criminal Procedure, 1973 - ss.161, 162, 163 and
164 - Evidence Act, 1872 - ss.25, 26 and 32.
Arts. 21, 22(1), 39-A of the Constitution, and ss. 303 and
304 CrPC - Right to consult and be defended by a legal
G practitioner - Held: Right of person accused of an offence to
access to legal aid, to consult and to be defended by a legal
practitioner arises when a person arrested in connection with
a cognizable offence is first produced before a magistrate - It
needs to be clarified that the right to consult and be defended
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 299
MUJAHID v. STATE OF MAHARASHTRA
by a legal practitioner is not to be construed as sanctioning A
or permitting the presence of a lawyer during police
interrogation, as the role of a lawyer is mainly focused on court
proceedings - Accused would need a lawyer to resist remand
to police or judicial custody and for granting of bail; to clearly
explain to him the legal consequences in case he intended B
to make a confessional statement in terms of s. 164 CrPC, to
represent him when the court examines the charge-sheet
submitted by the police and decide upon the future course of
proceedings and at the stage of the framing of charges; and,
for the trial - The right to access to a lawyer flows from the c
provisions of the Constitution and the statutes, and is only
intended to ensure that those provisions are faithfully adhered
to in practice - Every accused unrepresented by a lawyer has
to be provided a lawyer at the commencement of the trial to
represent him during the entire course of the trial - Even if D
the accused does not ask for a lawyer or he remains silent, it
is the Constitutional duty of the court to provide him with a
lawyer before commencing the trial - But the failure to provide
a lawyer to the accused at the pre-trial stage may not have
the same consequence of vitiating the trial, unless it is shown
that failure to provide legal assistance at the pre-trial stage
E
had resulted in some material prejudice to the accused in the
course of the trial - That would have to be judged on the facts
of each case - In the instant case, there has been no violation
of any of the rights of the appellant under the Constitution -
He was offered the services of a lawyer at the time of his F
arrest, and at all relevant stages in subsequent proceedings
-
The absence of a lawyer at the pre-trial stage was not only
as per the wishes of the appellant himself, but this absence
also did not cause him any prejudice in the trial -Code of
Criminal Procedure, 1973 - ss. 303 and 304.
G
Arts. 21, 22(1) of the Constitution and ss. 303 and 304
Cr.P. C. - Right of person accused of an offence to consult and
be defended by a legal practitioner - Duty of Magistrate
concerned - Held: The provisions of the CrPC and the
H
300
SUPREME COURT REPORTS
(2012] 8 S.C.R.
A Evidence Act fully incorporate the Constitutional guarantees,
and that the statutory framework for the criminal process in
India affords the fullest protection to personal liberty and
dignity of an individual, but the Court takes judicial notice that
there is a great hiatus between what the law stipulates and the
s realities on the ground in the enforcement of the law - It is the
duty and obligation of the magistrate to make the accused
fully aware that it is his right to consult and be defended by a
legal practitioner and, in case he has no means to engage a
lawyer of his choice, that one would be provided to him from
c legal aid at th<:) expense of the State - The right flows from
Arts. 21 and 22(1) of the Constitution and needs to be strictly
enforced - The Court, accordingly, directs all the Magistrates
in the country to faithfully discharge the said duty and
obligation and further make it clear that any failure to fully
0 discharge the duty would amount to dereliction in duty and
would make the Magistrate concerned liable to departmental
proceedings - Administration of criminal justice - Judicial
notice.
E
CODE OF CRIMINAL PROCEDURE, 1973:
S. 164 - Confessional statement - Held: In the instant
case, the confession made by the appellant was voluntary -
The Magistrate gave sufficient time to the appellant to reflect
and reconsider the matter, and cautioned him of the
F consequences; and after satisfying herself that the appellant
was making the statement on his own free will and volition,
proceeded to record his statement u/s 164 - The statement
was recorded in accordance with the procedure prescribed and
there was no violation of any constitutional or legal right of the
G appellant in recording the confession - In the instant case, to
say that the confessional statement was intended to confirm
the investigation is actually to blame the police for an
excellent investigation - Further, police was fully justified in
producing the appellant for confession only after completing
its investigation - The Court is clearly of the view that the
H
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 301
MUJAHID v. STATE OF MAHARASHTRA
confessional statement recorded by the Magistrate is
A
voluntary and truthful, except in so far as it relates to A-2 and
A-3 - There was no violation of any constitutional and legal
rights of the appellant in recording of the cofession - There is
no reason for not taking the confession into consideration to
judge the charges against the appellant - Investigation.
B
CRIMINAL TRIAL:
Proceedings before trial court - Held: The manner in
which the trial Judge conducted the trial proceedings and
maintained the record, is exemplary - The Court seriously C
recommends that the trial court records of this case be
included in the curriculum of the National Judicial Authority
and the Judicial Authorities of the States as a model for
criminal trial proceedings.
MEDIA:
Incidents relating to national security, and safety of public
and security forces -26111 (2008) terrorists' attack on Mumbai
D
- Security forces fighting terrorists - Live telecast by T. V.
Channels - Held: Court can take judicial notice of the fact that
E
terrorists' attacks at all the places, in the goriest details, were
shown live on the Indian TV from beginning to end almost
non-stop - The reckless coverage of the terrr>rists' attack by
the channels gave rise to a situation where on the one hand
the terrorists were completely hidden from the security forces
F
and they had no means to know their exac.
sition or even
the kind of firearms and explosives they possessed and, on
the other hand, the positions of the security forces, their
weapons and all their operational movements were being
watched by the collaborators across the border on TV screens
G
and being communicated to the terrorists, thus, making the
task of the security. forces not only Pxceedingly difficult but
also dangerous and risky - Any attempt to justify the conduct
of TV channels by citing the right to freedom of speech and
H
302
SUPREME COURT REPORTS
(2012] 8 S.C.R.
A expression would be totally wrong and unacceptable in such
a situation - The freedom of expression, like all other
freedoms under Art. 19, is subject to reasonable restrictions -
An action tending to violate another person's right to life
guaranteed under Art. 21 or putting the national security in
8
jeopardy can never be justified by taking the plea of freedom
of speech and expression - The shots and visuals that were
shown live by TV channels could have been shown after all
the terrorists were neutralized and the security operations were
over - It must, therefore, be held that by covering live the
C terrorists attack on Mumbai in the way it was done, Indian TV
channels were not serving any national interest or social
cause - On the contrary, they were acting in their own
commercial interests putting the national security in jeopardy
- Constitution of India, 1950 - Arts. 19 and 21 - Judicial notice.
D
The appellant-accused(A-1) in Crl. A. Nos. 1899-1900
of 2011 was one of the gang of 10, who, in furtherance
of a sinister conspiracy hatched in Pakistan to wage war
against the Government of India, struck terrorist attack
on Mumbai at targeted places on 26.11.2008 at about 9.50
E P.M. that lasted till 9.00 A.M. on 29.11.2008. In the said
attack 166 people were killed and 238 were injured. Both
the injured and the dead included police and security
personnel as also foreign nationals, besides a large
number of Indian citizens. The appellant and his
F accomplice
deceased-accused-1
(D-A1)
were
apprehended by police; whereas the 8 other terrorists
were killed in the operation which had been handed over
to MARCOS (Naval) Commandos and National Security
Guards. D-A1 was declared brought dead in the hospital.
G 35 other co-conspirators and collaborators (wanted
accused) remained to be apprehended and brought to
court. The prosecution case, as revealed from the
investigation and the confessional statement of the
appellant made u/s 164 CrPC, was that the appellant was
H imparted rigorous and extensive training in terrorist
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 303
MUJAHID v. STATE OF MAHARASHTRA
activities by the members of Lashkar-e-Toiba and JamatA
ul- Cava in Pakistan. He was an active member of the
group, who hatched the conspiracy in Pakistan to wage
war against India by attacking her major cities. In
furtherance of that conspiracy he and 9 other terrorists
sailed from Karachi armed with sophisticated fire arms
B
and explosives in huge quantity to strike attack on
Mumbai.
On the way, they captured and boarded an
Indian fishing boat ('Kuber') and with the help of its
navigator they reached near the shore of Mumbai, (where
the appellant himself cut the neck of the navigator of c
'Kuber' and hid his body in the engine room), and in an
inflatable rubber speed-boat they reached the Mumbai
shore near Badhwar Park at about 9.00 P.M. on
26.11.2008. PW-28 witnessed their arrival at the said
place and time. They divided themselves into 5 groups 0
of two each and headed for the assigned targets.
'
The appellant and his accomplice (D-A1) hired a taxi
for CST. On the way the appellant fixed a bomb under
the seat of the driver. On reaching CST, they left the taxi.
(Subsequently, the said taxi was blown up by the bomb
E
blast at Vile Parle at 10.45 p.m. killing its two occupants,
the driver and a passenger. It was witnessed by PWs.
490 and 491 who were injured in the incident). Following
the appellant and D-A1, D-A4 and D-A 9 took a taxi from
Badhwar Park for Leopold Cafe. (They also planted an
F
ROX bomb in the taxi, which subsequently exploded in
the Mazgaon area at about 10:30 PM killing its driver, and
two passengers, and causing injuries to 19 people on the
road). They were followed by D-A5 and D-A8 who went
to Hotel Taj by taxi. After them, D-A2 and D-A3 went to G
Nariman House on foot. After these 8 terrorists had left,
the remaining two, namely, D-A7 and D-A6 sailed the
rubber boat to Nariman Point from where they walked into
Hotel Oberoi. PW-29 noticed the said abandoned rubber
boat. He along with others towed it to Badhwar Park and
H
304
SUPREME COURT REPORTS
[2012) 8 S.C.R.
A informed the Coast Guard about it.
The appellant and D-A 1, after entering CST, opened
indiscriminate firing from their AK-47 rifles and hurled
hand grenades leaving many dead and several injured
8 including the police and RPF personnel. From there they
went to Carna Hospital and killed and injured several
persons there including the police personnel. They
overcame any efforts by the police to stop them. After
corning out from Carna Hospital they attacked the car
meant for a high official of the State Government and
C injured its driver. Thereafter, they attacked a police Qualis
and killed 3 senior Police Officers and three other
occupants of the vehicle, and grabbed that vehicle.
However, they were unable to go very far in the Qualis
as one of its wheel was destroyed in the gunfire. They
D then commandeered a Skoda car from its occupants at
gun point. They were driving the Skoda on Marine Drive
when they were finally apprehended by police at Vinoli
Chowpaty. In exchange of firing, DA1 and the appellant
also received injuries. Both were taken to hospital, where
E DA1 was declared brought dead.
D-A4 and D-A9 launched an attack on Leopold Cafe
with grenades and gunfire from AK-47 rifles and left it
within minutes, leaving behind 11 dead of whom 2 were
F foreign nationals and 28 injured (of whom 9 were foreign
nationals). They walked to Hotel Taj to join the other two
terrorists, namely, D-A 5 and D-A 8.
D-A 5 and D-A 8, on reaching Hotel Taj, first put one
ROX bomb near a tree at a distance of about 50 metres
G from the porch of the New Taj Hotel. This bomb did not
explode and was recovered and seized along with the
bomb planted by the Leopold-team under the
Panchnarna Ext. no. 736. They then entered the hotel and
started firing with their AK-47 rifles on burst mode. On the
H
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 305
MUJAHID v. STATE OF MAHARASHTRA
fifth floor of the hotel they planted the second ROX bomb,
A
placing it under the central dome so as to cause
maximum damage to the building. They took PW-184,
PW-188, PW-224 and two others as hostages (all of whom
escaped subsequently). Later, they were joined by 0-A
4 and 0-A 9. All the while, the terrorists had long
B
conversation with their collaborators and handlers on a
mobile phone; these handlers were constantly urging
them to throw grenades and to set fire to the hotel
building. They gave a tough fight to the security forces
till they were finally killed on the morning of November C
29, 2008. By that time, the four terrorists had killed 36
people (of whom 9 were foreign nationals) and caused
injuries to 30 others (of whom 5 were foreign nationals).
O-A2 and D-A3 had gone to Nariman House from
Badhwar Park on foot. On reaching near Nariman House .. D
they first planted an ROX bomb at Petrol Pump. From
there they proceeded to Nariman House, where they
planted the second ROX bomb near the staircase on the
ground (parking level area). These bombs exploded
causing considerable damage. From Nariman House
E
they made random firings in all directions and threw
hand grenades at adjoining buildings, roads and lanes
that resulted in death of two and injuries to several others.
The two terrorists, 0-A 2 in particular, were in regular
contact on the mobile phone with their handlers and
F
corroborators across the border. At one stage, the
controllers even tried to use one of their hostages, (a
Mexican citizen, later killed), as an intermediary in an
attempt to start some sort of 'negotiation' with the Indian
authorities.0-A 2 and D-A 3 were finally killed by security G
forces in the night of November 28, 2008. But, by then,
they had been able to kill 9 people (of whom 5 were
foreign nationals) and injure 7 others.
O-A7 and O-A6 entered Hotel Oberoi at about 21 :55
H
306
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A hours on 26.11.2008 and started firing indiscriminately
from their AK-47 rifles. They fought the security forces
till they were finally killed at about 7.00 AM on November
28, 2008. They left behind 35 people as dead (of whom
10 were foreign nationals) and 24 injured (of whom 7
B were foreign nationals).
On November 27, 2008, at 13:00 hours, PW-42
recorded disclosure statement of the appellant in the
presence of PW-48 and two panch witnesses including
PW-25, which led to the recovery of the Indian boat
C ('Kuber') on the sea and the dead body of its navigator,
a satellite phone, a GPS and a notebook in the said
fishing boat.
Respondents no. 1 and 2(A-2 and A-3 respectively)
o in Crl. A. No. 1961 of 2011 also faced trial along with the
appellant (A-1) in Crl. A. No. 1899-1900 of 2011, on the
basis of conspiracy, on the same charges. The case of
the prosecution was that A-2 prepared, by hand, maps of
various places of Mumbai to facilitate the attack by the
E terrorists and one such map was recovered from the
trouser-pocket of D-A 1. A-2 was said to have handed
over the said maps to A-3 in Nepal and the latter sent/
delivered those maps to the perpetrators of the crime in
Pakistan. Further, A-2, in order to provide logistical
F support to the terrorists landing in Mumbai, was stated
to have made arrangements for his stay in South
Mumbai.
The trial court convicted the appellant (A-1) of the
offences charged and awarded him 5 death sentences;
G for offence punishable (i) u/s 1208 IPC read with s.302
IPC for conspiracy to commit murder; (ii) u/s 121 IPC for
waging war against the Government of India; (iii) u/s 16
of the Unlawful Activities (Prevention) Act, 1967; (iv) u/s
302 IPC for committing murder of 7 persons; (v) u/s 302
H read with s.34 and s.302 IPC read with s.109 and 120-B
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 307
MUJAHID v. STATE OF MAHARASHTRA
IPC. However, A-2 and A-3 were acquitted of all the
A
charges. The High Court confirmed the death sentences
of the appellant and also upheld the acquittal of A-2 and
A-3. Crl. A. Nos. 1899-1900 of 2011 were filed as jail
appeals against the conviction of the appellant and Crl.
A. No. 196 of 2011 was filed by the State against acquittal
B
of A-2 and A-3.
Dismissing the appeals, the Court
HELD: (Per Aftab Alam, J.)
1.1. In regard to the CST episode, like all other parts
C
of the case, the prosecution has gathered a very large
amount of evidence: ocular, forensic and of other kinds,
e.g., CCTV recordings. They have documented
practically every action and movement of the two killers
(the appellant and D-A 1) from the point when DA-1 threw D
the first hand grenade at the passengers on the platform
till they went out of CST through the foot-overbridge on
the side of platform no.1 of the local lines. On the basis
of the ocular evidence alone (not taking into account for
the moment the other evidences) the prosecution has
E
presented before the court a vivid and photographic
(figuratively and actually) account of the CST events.
[Para 103] [387-B-D]
1.2. PW-49 is the Informant in connection with the
offences committed at CST. At the time of the assault on
F
CST he was an Assistant Inspector of Police attached to
the CST Railway Police Station situated within the
premises of CST. On the night of November 26 and 27,
he was on duty at the police station. At about 21.50
hours, while he was coming out of the PS, he heard the
G
sound of firing from the main hall of the main line railway
station. He proceeded to the main hall. Police Inspector
'SS' (one of the policemen killed in the attack), proceeded
to the hall. On coming to the main hall PW-49 saw the
two terrorists indiscriminately firing from AK-47 rifles at
H
308
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A the passengers sitting in the main hall. He was injured
by the bullets of the terrorists. He intimated the railway
police helpline about the assault by the terrorists and
asked for additional force. He also intimated the
Commissioner of Police, Railways, on his walkie-talkie.
B His statement was recorded at the hospital and on that
basis an FIR in regard to CST episode was registered.
[Paras 105, 109 and 113] [388-E-H; 389-A; 390-A-G]
1.3. PW-54, PW-58, PW-59, PW-60, PW-62, PW-63 and
PW-66 are the other policemen or members of RPF who
C heard the explosion and firing from different places of
their duty and tried to tackle the assailants and some of
them were seriously injured. [Para 136] [397-F-G; 398-AC]
1.4. PW-65 was the railway announcer on duty at the
D time of terrorists' attack on CST. At about 9.55 PM he
heard a big explosion. He guessed that it was a bomb
and looked outside the window of his cabin. He saw
passengers from the main line hall running towards the
local lines. Among them some were bleeding. Some
E were trying to rescue others who were unable to flee or
move on account of injuries. He saw two terrorists
coming from the direction of platform no.7. Both were
firing. He then gave a description of the two terrorists
and identified the appellant as the person who loaded his
F rifle sitting down on the floor of the main hall and who
t~rew away his bag. He was then shown the identity card,
Article 61. He identified the photograph as that of the taller
terrorist who was accompanying the appellant. He was
shown a black haversack, Article 219. He identified it as
G the bag that the appellant had thrown away in the main
hall of the local lines. [Para 116,117,118 & 120] [391-C, GH; 392-A-B, E-F]
1.5. The evidence of PWs 61 and 102 is extraordinary
in that they did not only witness the incidents but also
H made a visual record of the events by taking pictures of
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 309
MUJAHID v. STATE OF MAHARASHTRA
the two killers in action and also of their victims. The A
pictures taken by these two witnesses, without anything
else, are sufficient to conclude the issue of identification
of the appellant and DA-1 as the killers of CST. Both the
witnesses are professional photographers working with
a national newspaper. Both of them, caring little for their B
own safety and displaying exemplary professionalism,
followed the killers practically at their heels. Their ocular
testimony together with the photographs taken by them
provides a graphic picture of the carnage at CST. PW61 prepared a CD of the photographs from the memory c
card, to produce in court. The print-outs were taken from
the CD. [Paras 121,122 and 128] [392-G-H; 393-A-B; 395C]
1.6. PW-50 and his daughter, aged about 10 years,
(PW-51); PW-52; PW-53; PW-86 and her h~usband PW-87; D
and PW-88, are some of the passenger witnesses. They
were in the main hall of the main lines waiting for their
respective trains. They were jolted out of whatever they
might be doing or thinking at that moment by the
explosion of the first grenade thrown by DA-1 and from
E
that moment they watched, in abject horror, the appellant
and his companion firing indiscriminately at the group of
passengers in the main hall; DA-1 throwing the second
grenade and. then the two moving around on the
platforms in different directions until the spray of bullets
F
and the shrapnel from the exploding grenades hit them
or one of their group. Some of them were injured in the
incident. [Para 150-158] [404-C-E]
1.7. After coming out of CST, the appellant and DA-1
G
entered Cama Hospital, and killed 16 persons and injured
17 persons in the hospital and while coming out of it. The
killed and injured ones included the police personnel.
The prosecution, with the aid of 11 eye-witnesses,
namely,
PWs
101,103;105,107,106,109,111,118,
~
310
SUPREME COURT REPORTS
[2012) 8 S.C.R.
A 138,128,141 has traced practically every step taken by the
appellant and DA-1 from the moment they came out of
CST, entered Cama hospital and eventually left the
hospital. These were the witnesses who were either
themselves injured by the two terrorists or their relatives
B were either shot dead or injured by the terrorists. PW
118, an IPS Officer had an encounter with the two
terrorists in the terrace of the hospital building. PWs 138,
128 and 141 were the other police personnel who saw the
two terrorists, namely, the appellant and DA-1, who after
c coming out of Cama Hospital shot dead a police officer
who was directing the persons coming from CST not to
proceed further but to go back. They tried to tackle the
terrorists but were injured by them. [paras 159-188] [407A; 406-H; 414-A; 418-C]
D
1.8. PW-138 stated that he saw the appellant and DA1 firing at a white car with a red beacon and DA-1 also
throwing a hand grenade towards the car. PW-139 was
the driver of the said car who was injured by the bullets
of the two terrorists. PW-139 also stated before the court
E that he saw the two terrorists approaching the "High
Rise Building" by taking cover behind bushes. At the
same time, a police vehicle approached his vehicle and
as soon as the police vehicle came close to the two
terrorist, who were hiding in the bushes, they started
F firing at the police vehicle. There was an exchange of fire
from the police vehicle also and when firing from police
vehicle stopped, the two terrorists went to the vehicle,
pulled down bodies of its occupants and drove away in
the said vehicle. [para 194-196] [419-8-C, E; 420-F-G]
G
1.9. PW-136 was one of the member of the police
team in the Qualis which was attacked by the two
terrorists and he was badly injured in the attack. As the
two terrorists approached the vehicle, he kept on lying
in the rear seat of the vehicle pretending to be dead. The
H ta!!er one drove the vehicle while the shorter one
MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU
311
MUJAHID v. STATE OF MAHARASHTRA
occupied the other front seat. After sometime, he heard
A
the sound of firing. The tyre of the vehicle was
punctured. The vehicle stopped. The two terrorists left
that vehicle and left in another car. PW-144, PW-147 and
his wife were the three occupants of the white Skoda car
that the appellant and DA-1 snatched at gun-point. [Paras
B
203, 206, 207, 208, 210, 213, 215, 216] [422-E; 424-C-F;
426-B-C]
1.10. PW-1, the Sub-Inspector of Police stated that on
26.11.2008, at about 22.00 hours, the Senior Police
Inspector told him that terrorists had attacked some parts
C
of South Mumbai and directed him to go to Vinoli
Chowpaty along with members of the Crime Detection
Branch and to do a nakabandi there by putting up
barricades. Accordingly, he accompanied by 6 members
of the Detection Branch, proceeded to Vinoli Chowpaty.
D
On reaching there, they found API, PW-3, alongwith other
police personnel already present there and barricades
already put up. After some time, API, PW-2 (injured) and
an ASI (killed), along with some other policemen, also
arrived at the nakabandi. At about 00.30 hours they
E
spotted a Skoda car on Marine Drive coming from South
Bombay towards Chowpaty. Having been alerted in
regard to the Skoda, all the policemen, including PW-1,
signalled to the driver to stop the car. In the exchange
of firing two policemen and both the terrorists were
F
injured. All the injured were taken to hospital where DA1 was declared brought dead and the appellant was
admitted in the hospital for treatment. Subsequently, one
of the two policemen also died in the hospital. The FIR
of PW-1 was recorded by PW-31 at 2.10 hours, giving rise
G
to CR no. 305/2008 (later converted into DCB CID CR no.
182/2008). [Para 223-224, 228, 230 and 237] [429-E-H;
430-B; 431-D-H]
1.11. PW-2 was another member of the police team
at Vinoli Chowpaty that took the appellant in custody. His
H
312
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A deposition was similar to that of PW-1. He was one of
the two policemen who were injured by the bullets of the
two terrorists. He survived whereas the other died
subsequently in the hospital.
PW-3 was another
Assistant Police Inspector present at the nakabandi at
B Vinoli Chowpaty on the direction of Senior Police
Inspector. His narration of the occurrence was similar to
that of PW-1 and PW-2. [Para 240, 241 and 245, 247] [433H; 434-A, 435-G-H]
1.12. All the witnesses (except those relating to the
C Vile Parle and Mazgaon Taxi blasts) had a life and death
encounter with the appellant and his associate, (D-A1) at
close quarters. The physical appearance of the two
terrorists .was etched on their minds. All the witnesses
gave a detailed description of the two terrorists to the
D court. They described them by their complexion, age,
body-built and height, stating that one of them was tall
and the other was short. All of them identified the
appellant in court as the shorter of the two assailants.
They also identified DA1 from the photograph on the fake
E identity card, Article 61. They also stated before the court
that they had identified the appellant in the test
identification parades held. This Court accepts their
testimony without any hesitation. [Para 263] [441-G; 442A-C]
F
1.13. On the basis of the ocular evidence alone, the
G
appellant, personally and jointly with D-A 1, is directly
responsible for killing at least 72 people and causing
injuries of various kinds to 130 people. [Para 262] [441E-F]
1.14. Besides the depositions of the prosecution
witnesses, the prosecution has an enormous volume of
other evidence such as: articles recovered and seized
from places through which the two terrorists passed, and
the places where they stopped; the vehicles-they used
H until they were finally caught; medical and forensic
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 313
MUJAHID v. STATE OF MAHARASHTRA
reports, CCTV recordings, phone call records, Station
A
Diary entries, police logs, etc. (Para 262] (441-D-E]
1.15. From the forensic evidence it further appears
that of the 72 dead, at least 6 persons fell to shots fired
by the appellant. Therefore, he is held guilty of multiple
murders, murders with common intention and abetment,
8
attempts to murder with common intention and abetment,
abducting in order to murder, robbery with attempt to
cause death or grievous hurt, and several other allied
offences under the Penal Code, committing terrorist act
u/s 16 of Unlawful Activities (Prevention) Act, 1967, as well
C
as offences under the Explosives Act, 1884, Explosive
Substances Act, 1908, and Arms Act, 1959. [Para 264]
(442-D-E]
OTHER INCIDENTS OF TERRORISTS' ATTACK:
D
2.1. The prosecution has documented the episodes
at Leopld Cafe, Hotel Taj, Hotel Oberoi, and Nariman
House, as well as Mazgaon Taxi Blast as exhaustively as
it has documented the incidents at "CST", "Cam a
Hospital", snatching of SKODA car and incident at Vinoli
E
Chowpaty relating to the appellant and D-A 1.
PWs 478,
479, 176, 179, 184, 224, 188,,239, 206, 255, 182,C-W 3, 239,
201, 202, 200, 212, 215, 250 and 208 are substantive
witnesses of the incidents at these places. [para 304-308]
[458-A-H; 458-A-B]
F
CONSPIRACY:
2.2. The suggestion that the appellant should only be
held liable for acts committed by him in the company of G
the deceased accused(D-A1) based on the premise that
the two were acting independently and separately from
the other terrorists who, on arriving at Mumbai, went to
four different targets, cannot be accepted. There is no
basis for the assumption that the five pairs were not
connected to each other by a common conspiracy and
H
314
SUPREME COURT REPORTS
[2012] 8 S.C.R.
A that they were not acting in furtherance of a conspiracy
that was keeping them bound together even after they
had separated physically in order to execute their
assigned roles under the conspiracy. Further, it would be
wrong to proceed on such an assumption even without
B taking into account the evidence of conspiracy that the
prosecution has presented with reference to the other
aspects of the case and the other venues of the terrorist
attack. [para 267) [444-C-D, E-G]
2.3. Keeping in view the incident at the venues of the
C terrorists' violence, it cannot be said that the appellant
and his dead accomplice (D-A 1 ), were acting separately
and that their actions were not connected in any manner
with the offences committed at the other places by the
other 8 terrorists with whom they jointly made the sea
D journey to Mumbai's shore. It is significant to note that
the nine dead accused could only be known by their
respective names after the appellant identified them
through photographs of their dead bodies. Further, the
names of the four terrorists at Hotel Taj also came in the
E evidence of PW-224 and PW-242. Also the names of the
terrorists who went to Hotel Oberoi and Nariman House
came through in the transcripts of their intercepted
phone calls, in which they are talking with their
collaborators. It is obvious that all 5 teams were bound
F together and each team was acting in execution of a
common conspiracy. [para 272 and 309) [446-D-F; 459C-D]
2.4. The landing site for the terrorists at Badhwar Park
was selected with great care and the selection of the
G targets for attack was made with even greater care. The
attacks at all five targets appear to be integrally
connected with each other and the appellant and DA-1
are as much part of the offences committed at the other
places as they are responsible for the offences committed
H by them directly. Therefore, it cannot be said that for the
MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 315
MUJAHID v. STATE OF MAHARASHTRA
purpose of the instant appeal, there is no need to go
A
beyond the acts directly attributed to the appellant and
his dead associate. [para 310 and 315) [459-E; 461-D-E]
2.5.