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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NOS.1899-1900     OF     2011   

MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU MUJAHID … APPELLANT

VERSUS

STATE OF MAHARASHTRA … RESPONDENT

WITH

CRIMINAL     APPEAL     NO.1961     OF     2011   

STATE OF MAHARASHTRA … APPELLANT

VERSUS

FAHIM HARSHAD MOHAMMAD YUSUF ANSARI & ANOTHER … RESPONDENTS

AND

TRANSFER     PETITION     (CRIMINAL)     NO.30     OF     2012   

RADHAKANT YADAV … PETITIONER

VERSUS

UNION OF INDIA & OTHERS … RESPONDENTS

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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.  6 | P a g e

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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, 3rd Court, Esplanade, Mumbai, before whom he was  

presented for recording his confessional statement in CR No. 198/08 of Detection  

of Crime Branch, Mumbai (one of the twelve (12) cases registered in connection  

with the offences committed by the invading group of terrorists) at 10.45 AM on  

the same day.  

11. Mrs. Sawant Wagule proceeded to take his statement very slowly and with  

great circumspection. First of all, she had the appellant completely insulated from  

the police. She explained to him that from that point he was in her custody and not  

in the custody of the police. She asked him whether he was ill-treated or abused by  

the police in any manner and why he wanted to make the confessional statement.  

To her first question the appellant replied in the negative, and as for the reasons for  

him making a confession he said he would explain everything when his statement  

was recorded in detail. The magistrate further satisfied herself that the appellant  

was willing to make the confessional statement voluntarily and not under any  

pressure, coercion or allurement by the police or anyone else. Nonetheless, she did  

not take his statement on that day but told him that she wanted him to reflect  7 | P a g e

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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  9 | P a g e

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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 sub-

section 4 of Section 164 CrPC.  

16. Coming now to the main body of the confessional statement, it is in the form  

of a statement made by the appellant with only minimal interjections by the learned  

magistrate. She occasionally asked the appellant to clarify the meaning of some  

uncommon words or code words used in the conspiracy. The appellant’s statement,  

made before the magistrate over two days, is long and rambling, at points repetitive  

and full of seemingly superfluous details that would appear quite unnecessary if  

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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  13 | P a g e

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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-e-

Toiba going from door to door under the name of Jamaat-ul-Dava, collecting hides  

of goats sacrificed on Eid-uz-Zoha. They were asking people to donate the goat  

hides to help achieve independence for Kashmir. Kasab and his friend developed  

great respect for those people. They thought that those people were fighting for the  

liberation of Kashmir and they, too, should do something for their people. When  

they were working at Sarai Alamgir members of Jamat-ul-Dava were organising  

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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-ur-

Rehman Lakhvi (wanted accused No. 2), Area Commander Abu Al-Kama (wanted  

accused No. 4), Muzzamil alias Yusuf (wanted accused No. 6), Training-in-charge  

Abu Umar Sayeed (wanted accused No. 18) and Abu Hamza (wanted accused No.  

3). Kasab added that Zaki-ur-Rehman Lakhvi was known as ‘Chacha’ and Lakhvi.  

At that time Kafa told them that Abu Umar Sayeed arranged the training camps of  

Lashkar-e-Toiba.

[At this point the learned magistrate interrupted him to ask the meaning of the  

word Ameer. He said it meant leader].

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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-ur-

Rehman Lakhvi asked them if they were ready to wage the war. They all said they  

were ready for the war. At that time, Abu Al-Kama told them that they had to  

attack the major cities of Hindustan; that they would wage war against Hindustan  

from within, so that it is weakened from the inside. He added that anyone who  

would die in this war would go to paradise. In response, Kasab and all his  

associates said that they were ready to launch an attack on Hindustan.

28. In February 2008, they were selected for Daura-e-Amma training. Ustad  

Fahadullah gave them a letter saying “Bhai Vasool Daura-e-Amma”, and sent them  

to Mansera Markaz Aksa. They traveled for twelve (12) hours by bus to reach  

Mansera bus-stand from where they had to walk into the hilly region.  There, at the  

entrance to the camp they were subjected to a search. They showed Fahadullah’s  

note to the person at the gate and were allowed into the office. The person in the  

office wrote down detailed information concerning them in a register. After staying  

there for the day, they were taken to Buttel village in a van. From there the driver  17 | P a g e

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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 bus-

stand by bus and, after walking for about one kilometer, they reached the office of  

‘Lashkar-e-Toiba’ near a Masjid at the corner of a lane in Model Town. They told  

the people there that they had come to obtain the note for ‘Daura-e-Khassa’. After  

making inquiries of them and after making verifications on the telephone, the  

person present there wrote a letter saying “Bhai Vasool”. He stamped this with the  

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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  

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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.

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38. Kasab stayed at his village for one week and then, towards the end of July,  

2008, he reached the office of Hafiz Mohammad Sayeed at Baitul Mujahedeen.  

From there ‘Ustad’ Muavia took him to Selection Point at Sevai Nala, where 20/22  

Mujahedeens like him were already present. Also present were Ameer Hafiz  

Mohammad Sayeed, Muzammil, Abu Hamza, ‘Ustad’ Muavia, Kafa and Abu Al-

Kama. The Mujahedeens were shown a CD on the laptop demonstrating how  

Salauddin had made a ‘Fidayeen’  attack in Kashmir. Thereafter, Abu Al-Kama  

explained to them in detail how ‘Fidayeen’ attacks were made in Kashmir.  

39. Ameer Hafiz Sayeed selected them and gave them new names. He named  

Kasab ‘Abu Mujahid’ and Imran Babar from Multan of Punjab region ‘Abu Aqsa’;  

Nasir of Faisalabad was named ‘Abu Umar’ and Nazir Ahmed ‘Abu Omair’; Hafiz  

Arshad of Multan Road, Punjab, was called Abdul Rehman ‘Bada’  alias Hayaji;  

Abdul Rehman (Chhota) of Multan Road, Arabwala, was called ‘Saqib’; Soheb  

from Narowala, Shakkar Garh, Punjab, was given the name ‘Abu Soheb’. Some  

other colleagues of Kasab, who came from different places in Pakistan and whose  

names he did not recall but whom he identified with reference to the places from  

which they came, were similarly given pseudonyms by Hafiz Sayeed.

40. On the same day in the evening they were taken to the office of Baitul  

Mujahedeen.

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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 in-

charge Abu Sayeed gave special attention to this training. He would frequently  

come to them and make queries about the training.

42. During the training two of Kasab’s colleagues, Nasad and Abu Muavia, left  

the camp and went away.  

43. Abu Kafa and Imran (wanted accused No. 12) were the Ustad of this  

Dauara. During this training, Major General Saab came there twice. He watched  

them train and encouraged them. The Daura was completed in the end of August,  

2008. At that time Muzammil alias Yusuf and Abu Al-Kama had also come there.  

Major Saab asked them if they could swim, to which they answered in the  

affirmative. Then Major Saab asked Kafa to give them marine training. Kafa said  

he would do so.

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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  

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Javed from Okara, Punjab. Hafiz Sayeed named them Abu Ismail, Abu Fahadullah  

and Abu Ali. Abu Hamza told the group that these three were ‘Fidayeens’  like  

them; they had also taken training like them and they were also going with them to  

carry out the attack on Hindustan.    

47. On the thirteenth (13th) Roza Hafiz Sayeed, Zaki-ur-Rehman Lakhvi,  

Muzammil alias Yusuf, Al Kama, Abu Hasan, Abu Kafa and Abu Umar Sayeed  

called them into the office of Baitul Mujahid. Ameer Hafiz Sayeed addressed them  

there. He said that the time for ‘Jihad’  had come and they were now required to  

consider how best to launch the attack on Hindustan. After him Zaki-ur-Rehman  

Lakhvi spoke and said that the economic strength of Hindustan lay in Bombay and  

it was therefore necessary to direct the attack on Bombay. He added that they had  

taken good marine training and hence they would attack Bombay from the sea  

route. Major General Saab also came to this meeting. He embraced Ameer Hafiz  

and Zaki-ur-Rehman Lakhvi and they talked to each other at some distance from  

the rest of the group. After a while they came to the group and Zaki-ur-Rehman  

Lakhvi said that Major General Saab wanted to see their preparedness.  

Immediately, each of them was given a ‘Kalashan’ and a loaded magazine. Major  

General Saab asked Ameer Hafiz to have the targets fixed at which Ameer Hafiz  

directed Kafa to fix ten (10) targets. Major General Saab said that when he shouted  

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“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  

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country. Zarar Shah and Ibrahim had set up a high technology media room. In this  

room they had collected maps, CDs and other information concerning the major  

cities of every country in the world on the basis of which they selected the targets  

and advised Zaki-ur-Rehman Lakhvi.

50. Ameer Hafiz Sayeed and Zaki-ur-Rehman Lakhvi then divided the ten (10)  

‘Mujahedeens’ into five (5) ‘buddiyas’.

[The magistrate asked what a ‘Buddiya’ was. Kasab said ‘Buddiya’ meant a pair].

51. The Buddiyas were: 1. Kasab & Ismail Khan; 2. Imran Babar & Nasir; 3.  

Soheb & Nazir Ahmed; 4. Hafiz Arshad alias Hayaji & Javed; and 5. Abdul  

Rehman (Chhota) & Fahadullah.

52. Then, Zaki-ur-Rehman Lakhvi told them that on the twenty-seventh (27th)  

Roza they were to go and make the “Fidayeen” attack on Bombay. Ameer Hafiz  

Sayeed said to them that for going from Karachi to Bombay, a Hindustani boat  

would have to be hijacked and they would go to Bombay by that Hindustani boat.  

He added that the “maali halat” of Hindustan was based on “videshi sailaniyon”.  

Therefore, in order to weaken the “maali halat” of Hindustan it was necessary to  

attack, among other places, those places frequented by “videshi sailaniyon”.

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[At this point the magistrate interrupted to ask the meanings of “maali halat” and  

“videshi sailani”. Kasab translated the two expressions as “money power”  and  

“foreign tourists”].

53. Ameer Hafiz Sayeed told them that they would fire from “Kalashan” while  

also throwing hand grenades at VTS, Malabar Hill, Taj Hotel at Colaba, Leopold  

Hotel, Oberoi Hotel and Nariman House Building where Israelis stayed in  

Bombay. He added that while firing they should specially target the Americans, the  

British and the Israelis because those people had greatly oppressed the Muslims. At  

VTS there would be a very large crowd and while firing there they should not think  

of whether their targets were Muslims or Hindus. They should just open ‘brush  

fire’  without any thought as to who they targeted. However, while firing at the  

hotels they should take care that no Muslim was killed in their attack. Then, Zaki-

ur-Rehman Lakhvi asked the two “buddies” who were assigned the attack on the  

Taj Hotel and the Oberoi Hotel to set the two hotels on fire and to cause damage to  

them on a large scale. Zaki-ur-Rehman Lakhvi said that before launching the attack  

they must fix the RDX bombs around their targets. The bomb blasts would cause  

traffic jams and slow down the movement of the police coming to the rescue, and  

would thus make it easier for them to kill the policemen, besides many other  

people.  

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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 e

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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  

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them from there. He said that with the help of those maps they would easily reach  

the places targeted by them. Having told them how the maps were obtained, Kafa  

explained the maps to them. Kasab asked where Sabauddin and Fahim were. Kafa  

said both of them were arrested in Hindustan. Kasab asked why they were arrested,  

to which Kafa replied that they were arrested in connection with an attack made on  

a police camp at Rampur in India. Then, on the basis of one of the maps, he  

explained how long it would take them to go from Badhwar Park to VTS and from  

there to Malabar Hill. Kafa told them that Cooperage Ground and Azad Maidan  

fall on the way to VTS and told them to mention those places to the taxi driver.  

Kafa gave similar information to the other “Buddiyas”  on the basis of the CD,  

Google Earth and the maps sent by Sabauddin and Fahim.

58. On the day of the fifteenth (15th) Roza, Abu Hamza and Kafa took the ten  

(10) Mujahedeens to the hills of Muzaffarabad. There they practiced how to take  

position and fire with Kalashans. They were also taught how to make the tiffin  

bomb from RDX, how to fix a blast timer into it and how to set off the bomb. At  

that time, on the instructions of Ameer Hafiz Sayeed, Abu Hamza and Kafa gave  

more firing practice to Imran Babar.  

59. The same night they returned to Baitul Mujahedeen.     

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60. On the day of the sixteenth (16th) Roza, Kafa asked them to shave and cut  

their hair. They were given new clothes, shoes and socks. On Kafa’s instruction  

they cut off the labels of the new clothes. Kafa also gave them watches set to  

Indian time. On the same day, Kafa had their photographs taken.

61. On the day of the seventeenth (17th) Roza, Kafa took them to Karachi city by  

train and there they went to a house in Azizabad mohalla. Lying in the house was  

an Urdu magazine called “Taibat”  that featured the names of the six (6)  

“Mujahedeens”  who had gone on the Kashmir Mission and been martyred there.  

Kasab asked Kafa about them. Kafa said that their colleagues had become martyrs  

in the encounter with the Hindustani army and that Allah would rest their souls in  

heaven.

62. On the day of the eighteenth (18th) Roza, Kafa brought ten (10) timers and  

explained to them how to fix a battery in the timer and how to set the time. On  

Kafa’s instructions they affixed their names on one timer each, after which Kafa  

took the timers back from them. At that time, according to the plan, Kafa also gave  

all of them ID cards with their Hindu names. Kasab’s ID card showed him as  

Sameer Choudhary son of Dinesh Choudhary of Arunodaya Degree College,  

Bangalore. Ismail’s ID card described him as Naresh Verma son of Vilas Verma of  

Arunodaya Degree College, Hyderabad. All the ID cards were of Arunodaya  

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College. Kasab listed the different fake Hindu names given to the rest of his  

colleagues.

63. Kafa took them back to the Karachi harbour and they stayed on the sea for  

one day. On that expedition, Hakim Saab taught them how to dismantle, assemble  

and run a small inflatable boat. He showed them how to take out the sea valve and  

sink a boat. He explained to them about “tul” and “chourai”.

[Here the magistrate asked him to explain “tul” and “chourai”. He explained that  

“tuls” were the vertical and “chourais” were the horizontal lines on a map]

64. On the twentieth (20th) day of Roza, Lakhvi came there and said that the  

work had been stopped for some time. At this Kasab said to Lakhvi that there was  

no need for them to wait. He could make their mission successful, according to the  

plan, and there was no need for him to worry. Kasab further said that he had  

longed for it for so many years and asked Lakhvi not to create any obstructions. At  

this, Zaki-ur-Rehman Lakhvi started laughing and said that he knew from the  

beginning that he was a firm “Jihadi”, but he asked him to wait for some time. The  

next day Zaki-ur-Rehman Lakhvi left, though the Mujahedeens continued to stay  

in the Azizabad house. During those days Imran Babar would make them repeat  

the names on their ID cards. Of them, Imran Babar alone was properly educated  

and he could, therefore, read and write English.

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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].

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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 e

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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  

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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  

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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 e

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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  

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(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.

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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 speed-  

boat. While they were engaged in moving from the Kuber to the speed-boat, they  

saw a boat approaching. They thought it was a ‘navy’ boat. Alarmed, they quickly  

got into the speed-boat and set sail. In his haste, Ismail forgot to take out the sea  

valve of the Kuber. He also forgot his satellite phone on the Kuber.

82. They left the Kuber at a distance of about four (4) nautical miles from  

Bombay and sailed for Bombay on the speed-boat. Ismail was sailing the speed-

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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 speed-

boat. Ismail asked Kasab, Soheb and Javed to place RDX bombs, according to  

plan, under their taxi drivers’ seats. He told the others to place their bombs near the  

targets.

83. After sailing for about an hour and a half or two hours they reached the  

Bombay shore. According to plan, Abu Ali jumped out and anchored the boat to  

the shore. First, Ismail and Kasab alighted from the speed-boat. They took their  

bags. Both Ismail and Kasab removed their life jackets and waterproof trousers and  

threw them into the sea. After getting off the boat, Kasab put on his shoes.  

Following Kasab and Ismail, the others also got off the speed boat. At that time it  

was about 9.00 PM and according to the plan they were late by about an hour and a  

half.

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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  

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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.  

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They both fired in that lane. At that time heavy police firing started and they  

decided to enter the opposite building (which happened to be Cama Hospital),  

climb to its terrace and kill the policemen by firing and throwing grenades at them  

from this higher position.  

89. They jumped over a closed gate, entered the building and climbed up its  

floors. The police followed them into the building. They fired at the police and the  

people and also threw hand grenades at them. At that time the police was also  

firing at them. They shot the policemen dead. Then, as the firing stopped, they  

came down. They were in that building for almost an hour. Then they came to  

know that the building was a hospital.  They could hear the screams of women and  

cries of children coming from the rooms of the building. They decided to enter  

every room of the building and to kill the women and children there. They tried to  

open the doors of the rooms but all the doors were closed from inside and the iron-

grill doors outside were also closed. They were unable to open any of the doors.  

They decided to get out from that building and go to their last target. They came  

down from the building and moved ahead, taking cover of a wall. After moving  

ahead, they jumped over the wall and came out on the road.

90. They moved ahead on the road, keeping on the right side, taking cover of the  

wall. They saw a policeman coming. Kasab pointed his ‘Kalashan’  at him and  

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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 e

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‘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  

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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 e

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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  

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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,  

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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 e

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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 e

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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  54 | P a g e

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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  

grenade5 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.    

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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  

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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 e

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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 e

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110. He then came back to the main hall accompanied by Police Constable  

Nalawade who had a carbine with him. He saw Police Inspector Shinde lying  

injured near the SBI, ATM. Also lying injured in the main hall were about one  

hundred to one hundred and twenty-five (100-125) passengers.

111. By the time he came back to the main hall of the main lines, the two  

terrorists had moved in the direction of the main hall of the local railway station.  

Constable Nalawade fired three rounds towards them from his carbine. Constable  

Nardele (PW-58) also fired eight rounds at them from the main hall of the main  

lines while the terrorists were in the main hall of the local lines. The appellant and  

his associate were, however, not hit and they continued to proceed towards  

platform No. 1 of the local lines. By then, the additional police force had come and  

the public had also come to their help. The injured persons were being taken to  

hospitals. The witness himself was admitted to St. George’s Hospital for treatment  

of the firearm injury in his right upper arm.

112. He later came to learn that Police Inspector Shinde and MN Chaudhary of  

the RPF were also among those who were killed as a result of the firing by the two  

terrorists. He also learnt that the appellant and his associate had also used hand-

grenades at the railway station.  

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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  

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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  

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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  

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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  63 | P a g e

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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 policemen8 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 plainclothesman9 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)   

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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. 24010. 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.

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injured was marked Ext. no. 24211. 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).

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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-C12 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.   

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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-D13) 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.     

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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.

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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  

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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  

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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 Pandarkar14, a police constable15 and a photographer16. He  

went after them and heard the sound of firing on platform no.7. He entered a  

compartment of a local train on platform no.6 and 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 e

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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  73 | P a g e

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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  

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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 e

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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  

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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  

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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.

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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.  

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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.  

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Cama In18: Seven (7) dead and ten (10) injured19  

159. Kasab and Abu Ismail were seen exiting CST via the foot-overbridge and  

coming down the bridge in the evidence of Vernekar (PW-102) and in the  

photograph of Kasab (Ext. no. 410-D) taken by him. On descending from the foot-

overbridge, they came to Badruddin Tayabji Marg, which is a long, meandering  

road, a part of which runs along the premises of Cama Hospital. Cama Hospital has  

large premises, on which there are a number of buildings including a six-storey  

structure called the New Hospital Building. The entry to Cama Hospital is from  

Mahapalika Road on its western side, and Badruddin Tayabji Marg runs along the  

back of its premises. The prosecution, with the aid of eleven (11) eye-witnesses,  

has traced practically every step taken by Kasab and Abu Ismail from the moment  

they came out of CST, entered Cama hospital and eventually left the hospital. We,  

however, propose to examine only some of these steps, to get a broad idea of how  

the two were moving around killing people, completely mindlessly.  

160. Bharat Budhabhai Waghela (PW-103) worked as a Safai Kamgar with  

Voltas. He lived in a hut off Badruddin Tayabji Marg. At about 9.30 PM on  

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.

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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 ante-

natal care unit and saw two persons climbing over the steel gate at the back of the  

hospital. One of them was ‘lamboo’  (tall) and the other was ‘butka’  (short). She  

could see them clearly in the light from the street lights. She further said that the  

gate was at the distance of ten to fifteen (10-15) feet from the window from where  

she saw the intruders.  

164. The two men jumped inside the Cama Hospital premises. The tall man fired  

towards the window from where she was looking at them. One of the bullets hit the  

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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 confined20. 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

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168. Funde then identified the appellant’s partner from the photograph on the  

identity card, Article 61. He further told the court the he had identified the  

appellant at the test identification parade on December 27, 2008. He had also  

identified the dead body of the appellant’s partner on January 7, 2009, at JJ  

Hospital.  

169. Harishchandra Sonu Shrivardhankar (PW-106) was the person whom  

Funde had seen lying in a pool of blood near the door of the bathroom. His  

encounter with the two terrorists has something uncanny about it. Fate seemed to  

force his every step towards meeting the terrorists and when he actually stood face-

to-face with them, quite certain of death, he did not go down without fighting.  

Tough, two and a half times the age of his opponents, completely unarmed and  

untrained in any kind of fighting, he put up a fight nonetheless. Unfortunately, his  

attempt could not succeed against an armed and trained killer. He was stabbed and  

shot and left behind by the terrorist in the belief that he was dead or would soon  

die. Shrivardhankar, however, survived to tell the story and to identify his  

assailant.  

170. Shrivardhankar worked as a Senior Clerk at the Mantralaya at the time.  

Apparently a devotee of Hazrat Sayyed Shah Baba (a Muslim saint), after leaving  

his office at 6.00 PM on November 26, 2008, Shrivardhankar went to the Urs at  

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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 e

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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.

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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  

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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  

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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 terrace22. 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.  

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the two terrorists who were at that time on the terrace of the building, holding  

Tikhe there.

181. On reaching the sixth floor, instead of rushing to the terrace, Date picked up  

an iron object lying there and threw it towards the door of the terrace, to check the  

position of the terrorists. In response, a burst of firing from an automatic weapon  

came from the terrace door. Shortly thereafter, Date saw a bulky person (Tikhe)  

coming down to the landing on the stairs between the terrace and the 6th floor. Date  

challenged the bulky person but Kailash (PW-111) identified him as a member of  

the hospital staff. The bulky person indicated that there was somebody behind him.  

Date asked him to bend down and then fired over his head towards the terrace.  

That forced the terrorists to go back to the terrace. Taking advantage of the  

situation, Tikhe came down to the sixth floor landing. In the meantime, a grenade  

was thrown from the terrace. It exploded on the sixth floor in front of the lift  

causing injuries to some police officers, including Date, and also to Tikhe.  

182. Date’s team comprised seven (7) police officers and policemen. All of them  

were armed with firearms. Date’s operator Tilekar and police constable  

Khandelkar had one carbine each. Date himself was wearing a bullet-proof jacket  

and he had a carbine with twenty (20) rounds. But all this did not prove sufficient  

to take out Kasab and Abu Ismail or even to stop them. The two terrorists were  

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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  

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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 Out23: Nine (9) dead, seven (7) injured24

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.  

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others went back to Azad Maidan police station where they collected two bullet-

proof jackets and some fire-arms and ammunition.  

190. Returning to the scene of firing, they decided to go to the front gate of Cama  

Hospital (instead of going to the back side), expecting the terrorists to exit the  

hospital from its main gate. Kadam stated that he was accompanied by PI  

Thorawade (PW-128), PSI Shelke (PW-141), and police constables Utekar and  

Rathore.  Constable Gawade was driving the Bolero vehicle (called Peter-I26 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.  

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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  

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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)    

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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  

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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.

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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 Division28 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.  

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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  

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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).  

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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 bullet-

proof (jacket). He further said that the whole incident, from the beginning of firing  

by the terrorists until they took the vehicle lasted three to four (3-4) minutes.

THE SKODA ROBBERY29:

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.  

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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  

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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.  

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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 CHOWPATY30: 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.

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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  

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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.  

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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.

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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  

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car. He said that he was strongly built and about six (6) feet in height; he had  

shallow complexion and was clean shaven. He had black hair. He was wearing an  

ash-coloured T-shirt and blue cargo trousers.

231. He identified a pair of blue cargo trousers (Article 3) and an ash-coloured T-

shirt (Article 5) in court as the same as those that the deceased driver of the Skoda  

car was wearing at the time of the occurrence.

232. He then identified the appellant as the terrorist who had fired at the deceased  

Ombale. He further said that the appellant was wearing green cargo pants and a  

blue half T-shirt. On these articles being produced in court, he identified the green  

cargo trousers (Article 7) and a blue T-shirt (Article 9) as those that the appellant  

was wearing at the time of the occurrence.  

233. Kadam further said that in all four firearms (two AK-47 rifles and two  

pistols) were seized from the place of the occurrence. Both the pistols were found  

on the road, one was lying on the right side of the driver’s seat on the road and the  

other was lying on the left side of the car near the front left door. One of the AK-47  

rifles was found in the leg space below the driver’s seat and the other was found  

lying on the road on the left side of the car. He claimed that he could identify the  

AK-47 rifle with which the appellant had fired at the deceased Tukaram Ombale.

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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,  

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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  119 | P a g e

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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  

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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  

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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 e

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250. He then proceeded to give a description of the driver. He said that the driver  

had wheatish complexion, was strongly built and was aged twenty-four to twenty-

six (24-26) years. He was about six (6) feet tall and was wearing an ash-coloured  

half T-shirt and blue cargo trousers. Bavthankar further said that he had identified  

the dead body of the driver at the mortuary of JJ Hospital on January 6, 2009. He  

had identified the dead body from amongst seven (7) dead bodies placed for  

identification. He added that he had identified the appellant in the identification  

parade held on December 27, 2008, at Arthur Road Prison.   

251. On these articles being produced in court, Bavthankar identified one (1)  

pistol (Article 29), one (1) magazine (Article 30), five (5) live cartridges (Article  

31 collectively), two (2) empties (Article 32 collectively), and two (2) bullets  

(Article 33 collectively), and said this was the same pistol that he had used at the  

time of the occurrence and which he had handed over, along with the rounds, to PI  

Sawant (PW-31)  

252. In cross examination, Bavthankar said that bullets fired by him had hit the  

driver. He further said that he could not say how many bullets might have hit him.  

The driver also sustained injuries from firing by PSI Kadam (PW-1)31. The driver  

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.

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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  

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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  

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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 Goyal32  

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 e

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Kandivali (W). Goyal called her from his mobile33 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 e

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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,  

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is directly responsible for killing at least seventy-two (72) people34 and causing  

injuries of various kinds to one hundred and thirty (130) people35.   

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.

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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.

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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.  

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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 e

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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  

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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  

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‘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 bodies37. 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 e

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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)

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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 Bank40 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.

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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  Irani41 (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”.

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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 building42 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.

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Nariman House: nine (9) killed and seven (7) injured

278. Imran Babar @ Abu Aqsa (deceased accused no.2) and Nasir @ Abu Umar  

(deceased accused no.3) had gone to Nariman House from Badhwar Park on foot.  

On reaching near Nariman House they first planted an RDX bomb at the Express  

Petrol Pump on SBS Road, Colaba. From there they proceeded to Nariman House,  

where  they  planted  the  second  RDX  bomb  near  the  staircase  on  the  ground  

(parking level area).43

279. They then entered the upper floors of  Nariman House without difficulty.  

Nariman House is a six (6) storied (ground plus five) building. It is a residential-

cum-prayer house used by Israeli people for temporary accommodation. An Israeli  

priest called Gabriel Holtzberge lived there permanently with his wife  Rivka and  

their two (2) year old son Moshe.  They had two (2) employees. One was  Kazi  

Zakir Hussain (PW-239), who was provided accommodation on the ground floor,  

and the other was a woman called Sandra. Besides these two, they had a watchman  

called  Kesari who,  however,  was  not  present  at  the  time of  the occurrence on  

November 26, 2008.  

280. On the date of the occurrence there were four guests, two males and two  

females, staying with the Holtzberge couple at Nariman House.  

43 Both the bombs planted by the terrorists exploded causing considerable damage; see Rambuval Chandrapati  Yadav (PW-202).

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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).

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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.  

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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 e

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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

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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 twenty-

seven (27) witnesses besides two (2) witnesses summoned by the trial court. Three  

of them, namely,  Kuttalam Rajgopalan Ramamoorthy (PW-184),  Sunil Rajaram  

Jadhav (PW-224)  and Adil  Rohintan  Irani  (PW-188),  are  witnesses  who were  

taken hostage by the terrorists and who also suffered injuries at their hands. Annie  

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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  

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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 Mumbai45. 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 hostages46 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  

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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.  154 | P a g e

Page 155

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  

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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 e

Page 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  159 | P a g e

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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  160 | P a g e

Page 161

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) shirt49

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.  

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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.  

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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.  

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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) Sewayyan51 fine

3) Flour red  

4) Drum (for luggage with lock)

51 Vermicelli 164 | P a g e

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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)

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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:

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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).

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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.  

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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 e

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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  

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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.  

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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  

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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 e

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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 e

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Federal Bureau of Investigation 11000 Wilshire Blvd., 17th Floor Los Angeles, CA 90403 Attention: Special Agent Geoffrey Maron

Re: File No. LA-252196

Dear Mr. Maron,

This letter is to confirm the conversation on February 13, 2009 between  our Yamaha representative and representatives from your location.  

We  have  contacted  Yamaha  Motor  Co.,  Ltd.  regarding  Yamaha  Outboard Enduro 40, model E40JMHL serial # 1020015 to confirm the  following:

Country of production: Japan Destination for export: Islamic Republic of Pakistan Distributor: Business and Engineering Trend (BET)

Within the scope of my employment with Yamaha Motor Corporation, I  am authorized to provide this information.

Sincerely,

Michelle Tejeras Asst. Manager-Service Support Cc: SR# 1-9130852.”

THE  PINK-COLOURED  FOAM,  THE  TERRORISTS’  SIGNATURE:

350. From the rubber dinghy that touched Mumbai’s shore at Badhwar Park, we  

return to CST. We have earlier seen the absolute mayhem created by the appellant  

and his associate, the dead Abu Ismail, at CST railway station. We now re-visit the  

place looking for any evidence of conspiracy that might bind them with the other  

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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  

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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 e

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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.

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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.

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359. Rajendra  Ramchandra  Mavle  (PW-247)  is  the  forensic  expert  who  

deposed before the court that all the foam pieces tallied with each other in respect  

of hue (appearance) and physico-thermal characteristics. He further stated to the  

court  that  the  foam pieces  were  examined by him under  ‘Differential  Thermal  

Analyser’ and that they were found to be similar in thermal characteristics. Mavle  

concluded that the source of all the foam pieces was the same. He identified his  

report before the court, marked as Ext. no. 1013.54

INTERCEPTED PHONE CALLS RECORDS:

360. The  most  clinching  evidence  regarding  conspiracy  comes  from  the  

recordings  of  intercepted  telephone  calls  between  the  terrorists  and  their  co-

conspirators and collaborators sitting in a foreign land that, in light of the over all  

facts and circumstances of the case, can only be Pakistan. Unlike the appellant and  

his dead companion, Abu Ismail (deceased accused no.1), who were constantly on  

the move, the other terrorists had gone to Hotel Taj, Hotel Oberoi and Nariman  

House and were holed up there, even taking hostages for some time. From their  

respective positions they were in regular contact with their collaborators and were  

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 e

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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.

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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.

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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 e

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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 e

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375. More importantly, Al Sharif stated to the court that the services provided by  

him to Kharak Singh were used most heavily from November 24 to 27, 2008. The  

initial use was only for testing. He further informed the court that he had supplied  

the following details to the FBI along with his letter of February 13, 2009 (Ext. No.  

614).  

“1) Call Detail Records for sub-account 310000xx and 400000xx  for client Mr. Kharak Singh;

2) Callphonex Call Detail Records for calls to 5 DID numbers;

3) Voxbone Call Detail Records to DID numbers (that Callphonex  has access to and obtained on its own);

4) Three (3) chat logs between a representative of Callphonex and  Mr. Kharak Singh;

5) Copy of MoneyGram receipt dt. 27th October, 2008, and copy  of Western Union receipt dt. 25th November, 2008.

6) E-mails between Mr. Kharak Singh and Callphonex.”

376. He further deposed before the court that the last mail received by him from  

Kharak Singh was on November 25, 2008, at 12:08 PM and thereafter there was no  

contact between him and Kharak Singh. The account of Kharak Singh was closed  

after December 25, 2008.  

377. It does not require much imagination to see that “Kharak Singh”, claiming to  

be from India, was a fake identity created for the sole purpose of obtaining the  

VoIP services from Callphonex. But this was made very clear by the investigation  

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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:-

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“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  

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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  

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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  

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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  

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February 12, 2009, from Mary Lozano, ACP, Enforcement Manager / Americas  

Nokia Inc.  (PW-155) addressed to SA Geoffrey Maron of the Federal Bureau of  

Investigation (PW-153). In the aforesaid communication it is stated as follows:-

“February 12, 2009.

SA Geoffrey Maron  Federal Bureau of Investigation 11000 Wilshire Blvd Los Angeles, CA 90024

In  response  to  the  FBI’s  request  via  United  States  legal  authority,  Nokia  provides  information from our records concerning the following specific Nokia devices:

1. Nokia 1200, IMEI # 353526024049451 2. Nokia 1200, IMEI # 353526025828739 Manufactured: DongGuan, China Manufactured: DongGuan, China Date shipped: June 28, 2008 Date shipped: June 26, 2008 Country shipped to: Pakistan Country shipped to: Pakistan Vendor product sold to: United Mobile Vendor product sold to: I2 Pakistan (Pvt.) Ltd.

3. Nokia 1200, IMEI # 353526025842235 4. Nokia 1200, IMEI # 353526025840890 Manufactured: DongGuan, China Manufactured: DongGuan, China Date shipped: June 26, 2008 Date shipped: June 26, 2008 Country shipped to: Pakistan Country shipped to: Pakistan Vendor product sold to: I2 Pakistan (Pvt.) Ltd. Vendor product sold to: I2 Pakistan (Pvt.) Ltd.

5. Nokia 1200, IMEI # 353526025933620 Manufactured: DongGuan, China Date shipped: June 28, 2008 Country shipped to: Pakistan Vendor product sold to: United Mobile

Further, our records reflect that at the time of shipment, I2 Pakistan (Pvt.) Limited’s address was:

I2 Pakistan (Pvt.) Limited 2nd Typical Floor, Executive Tower Dolmen City, Block 4, Clifton Karachi Pakistan

Within the scope of my employment with Nokia, and in compliance with United States  law, I am authorized to provide the above listed information derived from Nokia’s records.

Sincerely, 193 | P a g e

Page 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.

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390. In  an  early  talk55 that  took  place  between  01:15:01  to  01:16:42  hrs.  on  

November  27,  2008,  between  one  of  the  terrorists  from  Hotel  Taj  and  the  

collaborators, the latter appear quite anxious that the hotel building should be set  

on fire. They constantly urge the terrorist to start the fire but this man seems 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 e

Page 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

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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

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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 e

Page 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,  

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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?]

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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.]

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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.

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(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.  

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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.  

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[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.]

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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.  

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[(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 e

Page 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.

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[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.]

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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.]

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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.  

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[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.  

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[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.  

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[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 e

Page 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 e

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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  

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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.  

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[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.  

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[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.  

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[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.

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[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.  

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[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

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[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.]

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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.]

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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.]

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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 e

Page 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.

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[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.  

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[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.  

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[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.]

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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’)

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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 e

Page 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.]

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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.]

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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?  

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[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 e

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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  

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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.  

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[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.  

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[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.  

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[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.  

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[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.

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[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.

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[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  

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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,  

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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 boat56. At another place in the transcript  

the collaborators tell the terrorists in Taj Hotel that the dome at the top (of the  

building) had caught fire. The terrorists holed up in some room were not aware of  

this. The collaborators further advise the terrorists that the stronger they make the  

fire the better it would be for them57. 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 e

Page 247

the roof of the building59. 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 e

Page 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  

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on Mumbai in the way it was done, the Indian TV channels were not serving any  

national interest or social cause. On the contrary they were acting in their own  

commercial interests putting the national security in jeopardy.   

407. It is in such extreme cases that the credibility of an institution is tested. The  

coverage of the Mumbai terror attack by the mainstream electronic media has done  

much harm to the argument that any regulatory mechanism for the media must  

only come from within.

ARGUMENTS

I. Denial of Due Process

Mr. Raju Ramachandran:

408. In the face of the evidence stacked against the appellant, overwhelming both  

in volume and in weight, Mr. Ramachandran took a course that would neatly side-

step everything. He struck at the root. Mr. Ramachandran submitted that the  

appellant did not get a fair trial and added that the denial of fair trial, for any  

reason, wittingly or unwittingly, would have the same result: it would render the  

trial a nullity and no conviction or sentence based on such a trial would be legal or  

enforceable. Mr. Ramachandran prefaced his submissions by gently reminding the  

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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 Gujarat61, T. Nagappa v. Y.R. Muralidhar62, Noor Aga v. State of  

Punjab63, NHRC v. State of Gujarat64 , Jayendra Vishnu Thakur v. State of  

Maharashtra65 and G. Someshwar Rao v. Samineni Nageshwar Rao66; and in  

support of the second limb he relied upon the decisions in Behram Khursheed v.  

State of Bombay67 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, 2nd paragraph, 654)

68 (1985) 3 SCC 545 (paragraph 28 and 29, page 569, 570) 250 | P a g e

Page 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.69The  

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.

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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. Dani70 and through Nandini Satpathy to the  

decision of the US Supreme Court in Miranda v. Arizona71. 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 e

Page 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 Bihar72 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 Sandhu73. 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 e

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this Court in Kartar Singh v. State of Punjab74 and D.K. Basu v State of West  

Bengal75, 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 e

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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  

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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 Karnataka76.  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 e

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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 e

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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.

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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  

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hereinafter provided, at any inquiry or trial in respect of any offence  under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such  inquiry or trial whose statement has been reduced into writing as  aforesaid, any part of his statement, if duly proved, may be used by the  accused, and with the permission of the Court, by the prosecution, to  contradict such witness in the manner provided by Section 145 of the  Indian Evidence Act, 1872 (1 of 1872); and when any part of such  statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any  matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement  falling within the provisions of clause (1) of Section 32 of the Indian  Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27  of that Act.

Explanation.—An omission to state a fact or circumstance in the  statement referred to in sub-section (1) may amount to contradiction if  the same appears to be significant and otherwise relevant having regard  to the context in which such omission occurs and whether any omission  amounts to a contradiction in the particular context shall be a question of  fact.”

(Emphasis supplied)

422. Mr. Subramanium stated that sub-section (1) of Section 162, insofar as it  

makes any statement, in any form, made to police officers inadmissible, is a mirror  

reflection of the right against self-incrimination contained in Article 20(3). He  

pointed out that sub-section (2) of Section 162 carves out only limited exceptions  

to sub-section (1), to the extent of statements falling under the provisions of  

Sections 32(1) and 27 of the Evidence Act, 1872.

423. Section 163 of CrPC is also significant in its import: 260 | P a g e

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“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  

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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,  

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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 e

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is provided that if, at any time before the confession is recorded, the person  

appearing before the magistrate states that he is not willing to make the confession,  

the magistrate shall not authorise the detention of such person in police custody.  

The post-confession safeguard is incorporated under sub-section (4), wherein the  

magistrate is required to make a memorandum at the foot of the confession  

regarding the caution administered to the accused person and a certificate to the  

effect that the confession as recorded is a full and true account of the statement  

made.   

428. The protection of the privilege of the accused against self-incrimination is  

thus cast as a mandatory duty upon the magistrate, a judicial authority, under sub-

sections (2), (3) and (4) of Section 164.   

429. Mr. Subramanian further submitted that the confession of the accused under  

Section 164 CrPC is not a statement recorded under oath and, therefore, the  

proceedings retain their adversarial character and do not take any inquisitorial  

colour. He contrasted the recording of a confession under Section 164 with the  

examination of the accused as a witness in support of his own case (under Section  

315 CrPC), wherein the accused is examined on oath, and pointed out that the  

voluntary character of the judicial confession is, thus, ascertained at three stages:  

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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 Oghad77, in which an eleven-Judge Bench of this Court  

77 [1962] 3 SCR 10 265 | P a g e

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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  

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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 e

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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  

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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 States78, in which it was held by that Court that the suspect must  

unambiguously request for counsel and that the police were not prohibited from  

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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. Thompkins79. 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 e

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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. Sinclair82.  

He also referred to a decision of the European Court in Salduz v. Turkey83, 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 e

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Central Excise86 and Directorate of Revenue Intelligence v. Jugal Kishore Samra87,  

this Court had expressly declined to follow Nandini Satpathy.  

444. Miranda and Nandini Satpathy, which draws heavily upon the former, are,  

of course, referred with approval in D.K. Basu and in Navjot Sandhu, but those  

decisions were in 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 e

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to counsel, this Court made the following observation in paragraph 160 of the  

judgment, after analyzing the judgments in Miranda and Nandini Satpathy:

“Based on the observations in Nandini Satpathy case it is possible to  agree that the constitutional guarantee under Article 22(1) only implies  that the suspect in the police custody shall not be denied the right to meet  and consult his lawyer even at the stage of interrogation.  In other words,  if he wishes to have the presence of the lawyer, he shall not be denied  that opportunity. Perhaps, Nandini Satpathy does not go so far as  Miranda in establishing access to a lawyer at the interrogation stage.”

446. Mr. Subramanium submitted that the Miranda principle has no application to  

normal criminal procedure in India because similar safeguards and precautions  

with respect to the rights of the accused are expressly recognized in India under the  

law. He emphasized that the rights of the accused (including the right against self-

incrimination and the right to legal representation) have been placed on a much  

higher pedestal in Indian law, even prior to such judicial developments in the  

United States.  The learned Counsel submitted that the Constitutional provisions of  

Article 20(3) and Article 22(1), read with the statutory protections under Sections  

161, 162, 163 and 164 CrPC as well as Sections 24 and 25 of the Evidence Act,  

1872, make the rights of an accused sacrosanct.  

447. He also referred to the decision in Selvi, relied upon on behalf of the  

appellant, and submitted that in Selvi this Court made the following observations:-

“In Indian law, there is no automatic presumption that the custodial  statements have been extracted through compulsion. In short, there is no  

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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.

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THE COURT:

449. Let us first put aside the Miranda decision that seems to have entered into  

the discussions of this case as a red herring. The Miranda decision was rendered  

under a system of law in which an utterance made by a suspect before the police  

could lead to his conviction and even the imposition of the death penalty. From the  

judgment in the Miranda case it further appears that the police would subject the  

suspect to incommunicado interrogation in a terribly oppressive atmosphere. The  

interrogator would employ all the intimidation tactics and interrogations skills at  

his command, not to find out the truth but to somehow crack the suspect and make  

him ‘confess’  to his guilt. It was in such a situation that the US Supreme Court  

evolved the Miranda rules, in order to provide necessary protection to the accused  

against self-accusation and to ensure the voluntary nature of any statement made  

before the police, and came to hold and direct as under:

“To summarize, we hold that when an individual is taken into custody or  otherwise deprived of his freedom by the authorities in any significant  way and is subjected to questioning, the privilege against self- incrimination is jeopardized. Procedural safeguards must be employed to  protect the privilege, and unless other fully effective means are adopted  to notify the person of his right of silence and to assure that the exercise  of the right will be scrupulously honored, the following measures are  required.  He must be warned prior to any questioning that he has the  right to remain silent; that anything he says can be used against him  in a court of law, that he has the right to the presence of an attorney,  and that if he cannot afford an attorney one will be appointed for  him prior to any questioning if he so desires. Opportunity to exercise  these rights must be afforded to him throughout the interrogation.  

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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. … …   …  

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….. 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 Punjab88  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)

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to a police officer completely inadmissible.  Section 163 of the CrPC prohibits the  

use of any inducement, threat or promise by a police officer. And then comes  

Section 164 CrPC, dealing with the recording of confessions and statements made  

before a magistrate. Sub-section (1) of Section 164 provides for recording any  

confession or statement in the course of an investigation, or at any time before the  

commencement of the inquiry or trial; sub-section (2) mandates the magistrate to  

administer the pre-confession caution to the accused and also requires him to be  

satisfied, as a judicial authority, about the confession being made voluntarily; sub-

section (3) provides one of the most important protections to the accused by  

stipulating that in case the accused produced before the magistrate declines to  

make the confession, the magistrate shall not authorize his detention in police  

custody; sub-section (4) incorporates the post-confession safeguard and requires  

the magistrate to make a memorandum at the foot of the confession regarding the  

caution administered to the accused and a certificate to the effect that the  

confession as recorded is a full and true account of the statement made. Section  

164 of the CrPC is to be read along with Section 26 of the Evidence Act, which  

provides that no confession made by any person whilst he is in the custody of a  

police officer, unless it be made in the immediate presence of a magistrate, shall be  

proved as against such person.  

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455. It is thus clear to us that the protection to the accused against any self-

incrimination guaranteed by the Constitution is very strongly built into the Indian  

statutory framework and we see absolutely no reason to draw any help from the  

Miranda principles for providing protection against self-incrimination to the  

accused.  

456. Here it will be instructive to see how the Miranda decision has been viewed  

by this Court; in what ways it has been referred to in this Court’s decisions and  

where this Court has declined to follow the Miranda rules.  

457. Significant notice of the Miranda decision was first taken by a three-Judge  

bench of this Court in Nandini Satpathy. The appellant in that case, a former Chief  

Minister of Orissa, was summoned to the police station in connection with a case  

registered against her under Section 5(1) and (2), Prevention of Corruption Act,  

1947, and Sections 161/165, 120-B and 109 of the Penal Code, and was  

interrogated with reference to a long string of questions given to her in writing. On  

her refusal to answer, a complaint was filed against her under Section 179 of the  

Penal Code and the magistrate took cognizance of the offence. She challenged the  

validity of the proceedings before the High Court. The High Court dismissed the  

petition following which the Chief Minister came to this Court in appeal against  

the order passed by the High Court. It was in that context that this Court made a  

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glowing reference to the Miranda decision; however, in the end, this Court  

refrained from entirely transplanting the Miranda rules into the Indian criminal  

process and, with regard to the Indian realities, “suggested” certain guidelines that  

may be enumerated as under:

“(a) Under Article 22(1), the right to consult an advocate of his choice  shall not be denied to any person who is arrested.  Articles 20(3) and  22(1) may be telescoped by making it prudent for the police to permit the  advocate of the accused to be present at the time he is examined. Over- reaching Article 20(3) and Section 161(2) will be obviated by this  requirement.  But it is not as if the police must secure the services of a  lawyer, for, that will lead to ‘police station-lawyer’  system with all its  attendant vices.  If however an accused expresses the wish to have his  lawyer by his side at the time of examination, this facility shall not be  denied, because, by denying the facility, the police will be exposed to the  serious reproof that they are trying to secure in secrecy and by coercing  the will an involuntary self-incrimination.  It is not as if a lawyer’s  presence is a panacea for all problems of self-incrimination, because, he  cannot supply answers or whisper hints or otherwise interfere with the  course of questioning except to intercept where intimidatory tactics are  tried and to caution his client where incrimination is attempted and to  insist on questions and answers being noted where objections are not  otherwise fully appreciated.  The lawyer cannot harangue the police, but  may help his client and complain on his behalf.  The police also need not  wait for more than a reasonable time for the advocate’s arrival.   

(b) Where a lawyer of his choice is not available, after the  examination of the accused, the police officer must take him to a  magistrate, a doctor or other willing and responsible non-partisan official  or non-official and allow a secluded audience where he may unburden  himself beyond the view of the police and tell whether he has suffered  duress, in which case he should be transferred to judicial or other custody  where the police cannot reach him.  The collocutor communicate the  relevant conversation to the nearest magistrate.”

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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  

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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:   

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“…..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. Florida89, 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)

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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. Arizona90; Escobedo v. Illinois91 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)

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it was held that the right to have counsel present at the interrogation was  indispensable to the protection of the Vth Amendment privilege against  self-incrimination and to ensure that the right to choose between silence  and speech remains unfettered throughout the interrogation process.  However, this rule is subject to the conscious waiver of right after the  individual was warned of his right.”  

464. As we see Navjot Sandhu, it is difficult to sustain Mr. Ramachandran’s  

submission made on that basis. To say that the safeguards built into Section 32  

of the POTA have their source in Articles 20(3), 21 and 22(1) is one thing, but  

to say that the right to be represented by a lawyer and the right against self-

incrimination would remain incomplete and unsatisfied unless those rights are  

read out to the accused and further to contend that the omission to read out  

those rights to the accused would result in vitiating the trial and the conviction  

of the accused in that trial is something entirely different . As we shall see  

presently, the obligation to provide legal aid to the accused as soon as he is  

brought before the magistrate is very much part of our criminal law  

procedure, but for reasons very different from the Miranda rule, aimed at  

protecting the accused against self-incrimination. And to say that any failure  

to provide legal aid to the accused at the beginning, or before his confession is  

recorded under Section 164 CrPC, would inevitably render the trial illegal is  

stretching the point to unacceptable extremes.

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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  

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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  

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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  

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with the incipient Constitution in State of West Bengal v. Anwar Ali Sarkar92 made  

the following observations:-

“I find it impossible to read these portions of the Constitution without  regard to the background out of which they arose. I cannot blot out their  history and omit from consideration the brooding spirit of our times.  They are not just dull, lifeless words static and hide-bound as in some  mummified manuscript, but, living flames intended to give life to a great  nation and order its being, tongues of dynamic fire, potent to mould the  future as well as guide the present. The Constitution must, in my  judgment, be left elastic enough to meet from time to time the  altering conditions of a changing world with its shifting emphasis  and differing needs. I feel therefore that in each case Judges must look  straight into the heart of things and regard the facts of each case  concretely much as a jury would do; and yet, not quite as a jury, for we  are considering here a matter of law and not just one of fact: Do these  ‘laws’  which have been called in question offend a still greater law  before which even they must bow?”

472. In the more than four decades that have passed since, true to the exhortation  

of Justice Bose, the law, in order to serve the evolving needs of the Indian people,  

has made massive progress through Constitutional amendments, legislative action  

and, not least, through the pronouncements by this Court. Article 39-A came to be  

inserted in the Constitution by the Constitution (42nd Amendment Act, 1976) with  

effect from 3.1.1977 as part of the ‘Directive Principles of the State Policy’. The  

Article reads as under:-

“Article 39-A. Equal justice and free legal aid:  The State shall  secure that the operation of the legal system promotes justice, on a basis  of equal opportunity, and shall, in particular, provide free legal aid, by  suitable legislation or schemes or in any other way, to ensure that  

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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 e

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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 e

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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 Bihar93, this Court referring to Article 39-A, then newly  

added to the Constitution, said that the article emphasised that free legal aid was an  

unalienable element of a “reasonable, fair and just”  procedure, for without it a  

person suffering from economic or other disabilities would be deprived from  

securing 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.”

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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) case94 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.”

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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  

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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.   

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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?

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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 Pradesh95).  

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.   

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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.  

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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 e

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that the appellant had requested a Pakistani lawyer. On December 29, 2008, the  

Additional Chief Metropolitan Magistrate 37th Court, Esplanade, Mumbai, took the  

rather unusual step of directly forwarding the appellant’s letter to the “Hon’ble  

Ambassador, Pakistan”, with a covering letter under his seal and signature.  

Unfortunately for the appellant, the country of his nationality was in a mode of  

complete denial at that stage, and there does not seem to be even an  

acknowledgement of his letters requesting a Pakistani lawyer. On February 17,  

2009, the appellant was produced before the Additional Chief Metropolitan  

Magistrate for recording his confession under Section 164 of the CrPC, and we  

have already seen in great detail the proceedings of the next four dates till February  

21, 2009. On February 25, 2009, a chargesheet was submitted in the case, and on  

March 23, 2009, the appellant was produced before the Sessions Court through  

electronic video linkage for the first time. He then made a request to be given a  

lawyer at the expense of the State. On March 30, 2009, the court appointed Ms.  

Anjali Waghmare to represent the appellant from the panel of lawyers maintained  

by the court.  Moreover, since the appellant was charged with offences carrying the  

death penalty, under legal-aid rules he was entitled to be defended by a senior  

lawyer assisted by a junior. The court, therefore, appointed Mr. Pawar as the junior  

counsel to represent the appellant on April 1, 2009. At this stage, one Kaikhushru  

Lam, who had been clamouring for some time to be allowed to represent Kasab,  

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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 e

Page 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 e

Page 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.

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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  

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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 e

Page 306

Court in Ranchod Mathur Wasawa v. State of Gujarat99.  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 e

Page 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.  

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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  

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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 e

Page 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 e

Page 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.  

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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  

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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.   

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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 e

Page 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  

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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.  

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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 e

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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.  

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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 e

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set an example for others to follow and to become Fidayeen like him.  It is thus  

clear that he was not making a confessional statement from any position of  

weakness or resignation, or out of remorse.  He was a hero in his own eyes, and in  

those circumstances it is not possible to hold that the confession was not voluntary.  

It may further be noted that, though Mr. Ramachandran questioned the  

voluntariness of the confession, he did not say that the statements made therein  

were untrue in any manner.  

522. It needs to be noted here that, in the course of the trial, after fifty-eight (58)  

prosecution witnesses had been examined and the next witness, Police Sub-

Inspector Chavan was about to enter the witness box on July 20, 2009, the  

appellant in the dock expressed a desire to have a word with his Counsel.  After a  

brief consultation that lasted for about half a minute, Mr. Kazmi informed the court  

that the appellant wanted to say something to the court directly.  On being asked to  

speak by the court, the appellant said that he was accepting his guilt. The Special  

Public Prosecutor objected to entertaining any plea of guilty at that stage, on the  

grounds that the stage of Section 229 CrPC was already over.  The court, however,  

rightly overruling the objection, allowed the appellant to make a statement, which  

was recorded after giving him due caution.  

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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  

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that he owned up to almost with pride before the magistrate is now assigned to Abu  

Soheb with Kasab not even present in the engine room. Significantly, however, as  

regards his joining of Lashkar-e-Toiba, the formation of the conspiracy, the  

preparation and training for the attack on Mumbai, as well as the identities of the  

men in the organisation, there is hardly any omission in the appellant’s statement  

made in the court.

524. Further, in the statement to the court, though there is mention of the hand-

prepared maps, there is no mention of their source. There is no reference to Fahim  

and Sabauddin (accused nos. 2 and 3) as the maker and the deliverer (respectively)  

of those maps.

525. In the appellant’s statement before the court there is no reference at all to his  

family but the reason for this is not far to seek.  In paragraph 40 of the statement  

recorded by the court the appellant said as follows:  

“I wanted to confess the offence. Since Pakistan had been disowning, I  was not confessing. I have now learnt that Pakistan has accepted that I  am Pakistani National and that they are ready to prosecute the offenders.  Therefore, I am voluntarily confessing to the charges framed against me.  I have made the statement voluntarily without being influenced by any  extraneous source or reason.”

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526. His Pakistani identity and nationality having been acknowledged101 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.

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truthful, except insofar as it relates to the other two accused, namely, Fahim and  

Sabauddin.

IV. Conspiracy

530. Mr. Ramachandran submitted that the charge of conspiracy cannot be said to  

have been fully established against the appellant.  He pointed out that the appellant  

was charged with a larger conspiracy and he was alleged to have:-

1) Attempted to destabilize the Government of India by engineering violence in  

different parts in India;  

2) Attempted to create instability in India by the aforesaid subversive activities;  

3) Terrorized the people in different parts of India by indulging in wanton  

killings and destruction of properties through bomb attacks and use of fire-

arms and lethal weapons;  

4) Conspired to weaken India’s economic might;  

5) Conspired to kill foreign nationals with a view to cause serious damage to  

tourism business of India;  

6) Conspired to adversely affect harmony between various communities and  

religions in India.  

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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.  

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533. At this stage, however, we must address Mr. Ramachandran’s point  

regarding the admissibility of the transcripts in evidence against the appellant. Mr.  

Ramachandran submitted that the transcripts begin from 01.04 AM on November  

27, 2008, whereas the appellant was taken into custody at 00:30 hours on that date.  

In other words, the transcripts begin after the appellant was in police custody.  He  

contended that with the arrest of the appellant his link with the other alleged  

conspirators was snapped, and it could no longer be said that he continued to be a  

part of the conspiracy.  In that situation, the conversation among the alleged co-

conspirators cannot be used against the appellant.  In support of the submission, he  

placed reliance on a three-Judge Bench of this Court in State v. Nalini102.  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  

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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 e

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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  

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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  

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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 Delhi103. 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  

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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  

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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  

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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 e

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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:

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“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”.