MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU MUJAHID v. STATE OF MAHARASHTRA

Citation: [2012] 8 S.C.R. 295

Court: Supreme Court of India

Bench: AFTAB ALAM, C.K. PRASAD

Case summary

MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU MUJAHID v. STATE OF MAHARASHTRA.pdf

Judgment text

[2012] 8 S. C. R. 295 MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU MUJAHID v. STATE OF MAHARASHTRA (Criminal Appeal Nos. 1899-1900 of 2011 etc. ) AUGUST 29, 2012 [AFTAB ALAM AND CHANDRAMAULI KR. PRASAD, JJ. ] PENAL CODE, 1860: ss. 302, 302 read with s. 34 and s. 302 read with ss. 109, 120-B, 121, 121-A and 122 /PC and s.

16 of Unlawful Activities (Prevention) Act, 1967 - 26111 (2008) terrorists' attack on Mumbai at targeted places by appellant (A-1) along with 9 other terrorists (dead accused), in furtherance of a conspiracy to wage war against Government of India - 166 people killed and 238 injured - Trial court holding the appellant guilty of the offences charged and awarding him five death sentences - Convictions and sentences confirmed by High Court - Held: On the basis of ocular evidence alone, the appellant personally and jointly with deceased accused-1 (DA-1) is directly responsible for killing 72 persons and causing injuries of various kinds to 130 persons - He was also found guilty along with other dead accused as a co-conspirator - Conviction and sentences awarded by trial court and confirmed by High Court are affirmed - As regards A-2 and A-3, when the attack on Mumbai took place, they were in custody of U. P.

Police in connection with a different terrorist attack - Both the courts have analyzed the prosecution evidence in regard to A-2 and A-3 at great length and have given very good reasons to hold the prosecution evidence unworthy of reliance with respect to such grave charges against the two accused - Both the courts have rightly acquitted A-2 and A-3 of all the charges - Unlawful Activities (Prevention) Act, 1967 - s. 16. ss.

120-8, 121, 121-A and 302- Criminal conspiracy and conspiracy to wage war against Government of India - Terrorists' attack in furtherance of conspiracy to wage war 8 against Government of India - 10 terrorists dividing themselves in 5 teams of 2 each and attacking at targeted places in Mumbai - Plea that appellant's case should be considered only with respect to the incidents in which he was personally involved - Held: In view of the incidents at the venues of terrorists' attack and the conspirators across the border being in constant contact with terrorists, it is obvious that all the ten terrorists were bound together and each team was acting in execution of a common conspiracy - In view of the enormous evidence of all possible kinds including the recoveries made, it is clear that the terrorists' attack on Mumbai was in pursuance of a larger conspiracy of which the appellant was as much part as the 9 dead accused and other wanted accused persons - The attacks at all the targets were integrally connected with each other and the appellant and his deceased accomplice are as much part of the offences committed at other places as they are responsible for the offences committed by them directly - The most clinching evidence regarding conspiracy comes from recording of intercepted telephone calls between the terrorists and their coconspirators and collaborator sitting in a foreign land, which in the light of all facts and circumstances of the case can only be Pakistan - Evidence Act, 1872 - s.

10. ss. 121, 121-A and 122 - "Waging war against the Government of India" - Conspiracy -Terrorists' attack on Mumbai - Expressions "offences against the State" and ''in like manner and by like means as a foreign enemy would do" - Connotation of - Held: The expression "Government of India''. as appearing in s. 121, must be held to mean the State or interchangeably the people of the country as the repository MUJAHID v.

STATE OF MAHARASHTRA of the sovereignty of India which is manifested and expressed through the elected Government - It does riot matter that the target assigned to the appellant and DA-1 was a public building where they killed a large number of people - What matters is that the attack was aimed at India and Indians - It was by foreign nationals - People were killed for no other s reason than they were Indians - In case of foreigners, they were killed because their killing on Indian soil would embarrass India - The conspiracy, in furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its financial centre; to try to give rise to communal tensions and create internal strife and insurgency; to demand that India should withdraw from Kashmir; andto dictate its relations with other countries - It was in furtherance of those objectives that the attack was made, causing the loss of a large number of people and injury to an even greater number of people - Nothing could have been more "in like manner and by like means as a foreign enemy would do" - Appellant has been rightly held guilty of waging war against Government of India and rightly convicted u/ss 121, 121-A and 122 - Death penalty for an offence u/s 121, upheld - International Law.

SENTENCE/SENTENCING: Terrorists' attack on Mumbai - Trial court sentencing the appellant to death - High Court confirming the sentence - Held: The case has shocked the collective conscience of Indian people - It was a case of waging war against Government of India - The number of persons killed and injured is staggeringly high - The number of policemen and security forces killed and injured in the course of their duty by the appeJlant and his accomplice and 8 other coconspirators would hardly find a match in any other cases - The offence committed by the appellant show a degree of cruelty, brutality and depravity as in very few other cases - The appellant and his co-conspirators used highly lethal weapons and explosives - It is a case of terrorists' attack from across the borer - It has a magnitude of unprecedented enormity on all scales - In terms of loss of life and property and, more importantly in its traumatizing effect, this case stands alone or at/east it is the vety rarest of rare to come before the Court since the birth of republic - Therefore, it should also attract s the rarest of rare punishment - Appellant never showed any repentance or remorse, which is the first sign of any possibility of reform and rehabilitation - The only mitigating factor is appellant's young age, but that is completely offset by the absence of any remorse on his part and the resultant finding that in his case, there is no possibility of any reformation or rehabilitation - In the facts of the case, death penalty is the only sentence that can be given to the appellant - The convictions and sentences of the appellant passed by trial court and confirmed by High Court are affirmed.

CONSTITUTION OF IND/A, 1950: Arts. 20(3), 21 of the Constitution and s. 164, CrPC - Right against self-incrimination - Voluntaty confession - Held: Right against self-incrimination under Art. 20(3) has been statutorily incorporated in the provisions of ss. 161, 162, 163 and 164 CrPC and the Evidence Act, as manifestations of enforceable due process, and thus compliance with statutoty provision is also compliance with constitutional requirements - Right against self-incrimination under Art. 20(3) does not proscribe vo/untaty statements made in exercise offree will and volition - Code of Criminal Procedure, 1973 - ss. 161, 162, 163 and 164 - Evidence Act, 1872 - ss. 25, 26 and 32. Arts. 21, 22(1), 39-A of the Constitution, and ss.

303 and 304 CrPC - Right to consult and be defended by a legal practitioner - Held: Right of person accused of an offence to access to legal aid, to consult and to be defended by a legal practitioner arises when a person arrested in connection with a cognizable offence is first produced before a magistrate - It needs to be clarified that the right to consult and be defended MUJAHID v. STATE OF MAHARASHTRA by a legal practitioner is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation, as the role of a lawyer is mainly focused on court proceedings - Accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences in case he intended to make a confessional statement in terms of s.

164 CrPC, to represent him when the court examines the charge-sheet submitted by the police and decide upon the future course of proceedings and at the stage of the framing of charges; and, for the trial - The right to access to a lawyer flows from the provisions of the Constitution and the statutes, and is only intended to ensure that those provisions are faithfully adhered to in practice - Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial to represent him during the entire course of the trial - Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with lawyer before commencing the trial - But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial, unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial - That would have to be judged on the facts of each case - In the instant case, there has been no violation of any of the rights of the appellant under the Constitution - He was offered the services of a lawyer at the time of his arrest, and at all relevant stages in subsequent proceedings - The absence of a lawyer at the pre-trial stage was not only as per the wishes of the appellant himself, but this absence also did not cause him any prejudice in the trial -Code of Criminal Procedure, 1973 - ss.

303 and 304. Arts. 21, 22(1) of the Constitution and ss. 303 and 304 Cr. P. C. - Right of person accused of an offence to consult and be defended by a legal practitioner - Duty of Magistrate concerned - Held: The provisions of the CrPC and the Evidence Act fully incorporate the Constitutional guarantees, and that the statutory framework for the criminal process in India affords the fullest protection to personal liberty and dignity of an individual, but the Court takes judicial notice that there is a great hiatus between what the law stipulates and the s realities on the ground in the enforcement of the law - It is the duty and obligation of the magistrate to make the accused fully aware that it is his right to consult and be defended by a legal practitioner and, in case he has no means to engage a lawyer of his choice, that one would be provided to him from legal aid at th<:) expense of the State - The right flows from Arts.

21 and 22(1) of the Constitution and needs to be strictly enforced - The Court, accordingly, directs all the Magistrates in the country to faithfully discharge the said duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and 0 would make the Magistrate concerned liable to departmental proceedings - Administration of criminal justice - Judicial notice. CODE OF CRIMINAL PROCEDURE, 1973: S.

164 - Confessional statement - Held: In the instant case, the confession made by the appellant was voluntary - The Magistrate gave sufficient time to the appellant to reflect and reconsider the matter, and cautioned him of the consequences; and after satisfying herself that the appellant was making the statement on his own free will and volition, proceeded to record his statement u/s 164 - The statement was recorded in accordance with the procedure prescribed and there was no violation of any constitutional or legal right of the appellant in recording the confession - In the instant case, to say that the confessional statement was intended to confirm the investigation is actually to blame the police for an excellent investigation - Further, police was fully justified in producing the appellant for confession only after completing its investigation - The Court is clearly of the view that the MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 301 MUJAHID v.

STATE OF MAHARASHTRA confessional statement recorded by the Magistrate is voluntary and truthful, except in so far as it relates to A-2 and A-3 - There was no violation of any constitutional and legal rights of the appellant in recording of the cofession - There is no reason for not taking the confession into consideration to judge the charges against the appellant - Investigation. CRIMINAL TRIAL: Proceedings before trial court - Held: The manner in which the trial Judge conducted the trial proceedings and maintained the record, is exemplary - The Court seriously recommends that the trial court records of this case be included in the curriculum of the National Judicial Authority and the Judicial Authorities of the States as a model for criminal trial proceedings. MEDIA: Incidents relating to national security, and safety of public and security forces -26111 (2008) terrorists' attack on Mumbai - Security forces fighting terrorists - Live telecast by T. V.

Channels - Held: Court can take judicial notice of the fact that terrorists' attacks at all the places, in the goriest details, were shown live on the Indian TV from beginning to end almost non-stop - The reckless coverage of the terrr>rists' attack by the channels gave rise to a situation where on the one hand the terrorists were completely hidden from the security forces and they had no means to know their exac. sition or even the kind of firearms and explosives they possessed and, on the other hand, the positions of the security forces, their weapons and all their operational movements were being watched by the collaborators across the border on TV screens and being communicated to the terrorists, thus, making the task of the security.

forces not only Pxceedingly difficult but also dangerous and risky - Any attempt to justify the conduct of TV channels by citing the right to freedom of speech and expression would be totally wrong and unacceptable in such a situation - The freedom of expression, like all other freedoms under Art. 19, is subject to reasonable restrictions - An action tending to violate another person's right to life guaranteed under Art.

21 or putting the national security in jeopardy can never be justified by taking the plea of freedom 8 of speech and expression - The shots and visuals that were shown live by TV channels could have been shown after all the terrorists were neutralized and the security operations were over - It must, therefore, be held that by covering live the terrorists attack on Mumbai in the way it was done, Indian TV channels were not serving any national interest or social cause - On the contrary, they were acting in their own commercial interests putting the national security in jeopardy - Constitution of India, 1950 - Arts. 19 and 21 - Judicial notice. The appellant-accused(A-1) in Crl. A. Nos. 1899-1900 of 2011 was one of the gang of 10, who, in furtherance of a sinister conspiracy hatched in Pakistan to wage war against the Government of India, struck terrorist attack on Mumbai at targeted places on 26. 11. 2008 at about 9. 50 P. M. that lasted till 9. 00 A. M. on 29. 11. 2008.

In the said attack 166 people were killed and 238 were injured. Both the injured and the dead included police and security personnel as also foreign nationals, besides a large number of Indian citizens. The appellant and his accomplice deceased-accused-1 (D-A1) were apprehended by police; whereas the 8 other terrorists were killed in the operation which had been handed over to MARCOS (Naval) Commandos and National Security Guards. D-A1 was declared brought dead in the hospital. 35 other co-conspirators and collaborators (wanted accused) remained to be apprehended and brought to court. The prosecution case, as revealed from the investigation and the confessional statement of the appellant made u/s 164 CrPC, was that the appellant was imparted rigorous and extensive training in terrorist MUJAHID v. STATE OF MAHARASHTRA activities by the members of Lashkar-e-Toiba and Jamatul- Cava in Pakistan.

He was an active member of the group, who hatched the conspiracy in Pakistan to wage war against India by attacking her major cities. In furtherance of that conspiracy he and 9 other terrorists sailed from Karachi armed with sophisticated fire arms and explosives in huge quantity to strike attack on Mumbai. On the way, they captured and boarded an Indian fishing boat ('Kuber') and with the help of its navigator they reached near the shore of Mumbai, (where the appellant himself cut the neck of the navigator of 'Kuber' and hid his body in the engine room), and in an inflatable rubber speed-boat they reached the Mumbai shore near Badhwar Park at about 9. 00 P. M. on 26. 11. 2008. PW-28 witnessed their arrival at the said place and time. They divided themselves into 5 groups 0 of two each and headed for the assigned targets. ' The appellant and his accomplice (D-A1) hired a taxi for CST. On the way the appellant fixed a bomb under the seat of the driver.

On reaching CST, they left the taxi. (Subsequently, the said taxi was blown up by the bomb blast at Vile Parle at 10. 45 p. m. killing its two occupants, the driver and a passenger. It was witnessed by PWs. 490 and 491 who were injured in the incident). Following the appellant and D-A1, D-A4 and D-A 9 took a taxi from Badhwar Park for Leopold Cafe. (They also planted an ROX bomb in the taxi, which subsequently exploded in the Mazgaon area at about 10:30 PM killing its driver, and two passengers, and causing injuries to 19 people on the road). They were followed by D-A5 and D-A8 who went to Hotel Taj by taxi. After them, D-A2 and D-A3 went to Nariman House on foot. After these 8 terrorists had left, the remaining two, namely, D-A7 and D-A6 sailed the rubber boat to Nariman Point from where they walked into Hotel Oberoi. PW-29 noticed the said abandoned rubber boat. He along with others towed it to Badhwar Park and informed the Coast Guard about it.

The appellant and D-A 1, after entering CST, opened indiscriminate firing from their AK-47 rifles and hurled hand grenades leaving many dead and several injured including the police and RPF personnel. From there they 8 went to Carna Hospital and killed and injured several persons there including the police personnel. They overcame any efforts by the police to stop them. After corning out from Carna Hospital they attacked the car meant for a high official of the State Government and injured its driver. Thereafter, they attacked a police Qualis and killed 3 senior Police Officers and three other occupants of the vehicle, and grabbed that vehicle. However, they were unable to go very far in the Qualis as one of its wheel was destroyed in the gunfire. They then commandeered a Skoda car from its occupants at gun point. They were driving the Skoda on Marine Drive when they were finally apprehended by police at Vinoli Chowpaty.

In exchange of firing, DA1 and the appellant also received injuries. Both were taken to hospital, where DA1 was declared brought dead. D-A4 and D-A9 launched an attack on Leopold Cafe with grenades and gunfire from AK-47 rifles and left it within minutes, leaving behind 11 dead of whom 2 were foreign nationals and 28 injured (of whom 9 were foreign nationals). They walked to Hotel Taj to join the other two terrorists, namely, D-A 5 and D-A 8. D-A 5 and D-A 8, on reaching Hotel Taj, first put one ROX bomb near a tree at a distance of about 50 metres from the porch of the New Taj Hotel. This bomb did not explode and was recovered and seized along with the bomb planted by the Leopold-team under the Panchnarna Ext. no. 736. They then entered the hotel and started firing with their AK-47 rifles on burst mode. On the MUJAHID v. STATE OF MAHARASHTRA fifth floor of the hotel they planted the second ROX bomb, placing it under the central dome so as to cause maximum damage to the building.

They took PW-184, PW-188, PW-224 and two others as hostages (all of whom escaped subsequently). Later, they were joined by 0-A 4 and 0-A 9. All the while, the terrorists had long conversation with their collaborators and handlers on mobile phone; these handlers were constantly urging them to throw grenades and to set fire to the hotel building. They gave a tough fight to the security forces till they were finally killed on the morning of November 29, 2008. By that time, the four terrorists had killed 36 people (of whom 9 were foreign nationals) and caused injuries to 30 others (of whom 5 were foreign nationals). O-A2 and D-A3 had gone to Nariman House from Badhwar Park on foot. On reaching near Nariman House .. they first planted an ROX bomb at Petrol Pump. From there they proceeded to Nariman House, where they planted the second ROX bomb near the staircase on the ground (parking level area). These bombs exploded causing considerable damage.

From Nariman House they made random firings in all directions and threw hand grenades at adjoining buildings, roads and lanes that resulted in death of two and injuries to several others. The two terrorists, 0-A 2 in particular, were in regular contact on the mobile phone with their handlers and corroborators across the border. At one stage, the controllers even tried to use one of their hostages, (a Mexican citizen, later killed), as an intermediary in an attempt to start some sort of 'negotiation' with the Indian authorities. 0-A 2 and D-A 3 were finally killed by security forces in the night of November 28, 2008. But, by then, they had been able to kill 9 people (of whom 5 were foreign nationals) and injure 7 others. O-A7 and O-A6 entered Hotel Oberoi at about 21 :55 hours on 26. 11. 2008 and started firing indiscriminately from their AK-47 rifles. They fought the security forces till they were finally killed at about 7. 00 AM on November 28, 2008.

They left behind 35 people as dead (of whom 10 were foreign nationals) and 24 injured (of whom 7 were foreign nationals). On November 27, 2008, at 13:00 hours, PW-42 recorded disclosure statement of the appellant in the presence of PW-48 and two panch witnesses including PW-25, which led to the recovery of the Indian boat ('Kuber') on the sea and the dead body of its navigator, satellite phone, a GPS and a notebook in the said fishing boat. Respondents no. 1 and 2(A-2 and A-3 respectively) o in Crl. A. No. 1961 of 2011 also faced trial along with the appellant (A-1) in Crl. A. No. 1899-1900 of 2011, on the basis of conspiracy, on the same charges. The case of the prosecution was that A-2 prepared, by hand, maps of various places of Mumbai to facilitate the attack by the terrorists and one such map was recovered from the trouser-pocket of D-A 1.

A-2 was said to have handed over the said maps to A-3 in Nepal and the latter sent/ delivered those maps to the perpetrators of the crime in Pakistan. Further, A-2, in order to provide logistical support to the terrorists landing in Mumbai, was stated to have made arrangements for his stay in South Mumbai. The trial court convicted the appellant (A-1) of the offences charged and awarded him 5 death sentences; for offence punishable (i) u/s 1208 IPC read with s. 302 IPC for conspiracy to commit murder; (ii) u/s 121 IPC for waging war against the Government of India; (iii) u/s 16 of the Unlawful Activities (Prevention) Act, 1967; (iv) u/s 302 IPC for committing murder of 7 persons; (v) u/s 302 read with s. 34 and s. 302 IPC read with s. 109 and 120-B MUJAHID v. STATE OF MAHARASHTRA IPC. However, A-2 and A-3 were acquitted of all the charges. The High Court confirmed the death sentences of the appellant and also upheld the acquittal of A-2 and A-3. Crl. A. Nos.

1899-1900 of 2011 were filed as jail appeals against the conviction of the appellant and Crl. A. No. 196 of 2011 was filed by the State against acquittal of A-2 and A-3. Dismissing the appeals, the Court HELD: (Per Aftab Alam, J. ) 1. 1. In regard to the CST episode, like all other parts of the case, the prosecution has gathered a very large amount of evidence: ocular, forensic and of other kinds, e. g. , CCTV recordings. They have documented practically every action and movement of the two killers (the appellant and D-A 1) from the point when DA-1 threw the first hand grenade at the passengers on the platform till they went out of CST through the foot-overbridge on the side of platform no. 1 of the local lines. On the basis of the ocular evidence alone (not taking into account for the moment the other evidences) the prosecution has presented before the court a vivid and photographic (figuratively and actually) account of the CST events. [Para 103] [387-B-D] 1. 2.

PW-49 is the Informant in connection with the offences committed at CST. At the time of the assault on CST he was an Assistant Inspector of Police attached to the CST Railway Police Station situated within the premises of CST. On the night of November 26 and 27, he was on duty at the police station. At about 21. 50 hours, while he was coming out of the PS, he heard the sound of firing from the main hall of the main line railway station. He proceeded to the main hall. Police Inspector 'SS' (one of the policemen killed in the attack), proceeded to the hall. On coming to the main hall PW-49 saw the two terrorists indiscriminately firing from AK-47 rifles at the passengers sitting in the main hall. He was injured by the bullets of the terrorists. He intimated the railway police helpline about the assault by the terrorists and asked for additional force. He also intimated the Commissioner of Police, Railways, on his walkie-talkie.

His statement was recorded at the hospital and on that basis an FIR in regard to CST episode was registered. [Paras 105, 109 and 113] [388-E-H; 389-A; 390-A-G] 1. 3. PW-54, PW-58, PW-59, PW-60, PW-62, PW-63 and PW-66 are the other policemen or members of RPF who heard the explosion and firing from different places of their duty and tried to tackle the assailants and some of them were seriously injured. [Para 136] [397-F-G; 398-A- C] 1. 4. PW-65 was the railway announcer on duty at the time of terrorists' attack on CST. At about 9. 55 PM he heard a big explosion. He guessed that it was a bomb and looked outside the window of his cabin. He saw passengers from the main line hall running towards the local lines. Among them some were bleeding. Some were trying to rescue others who were unable to flee or move on account of injuries. He saw two terrorists coming from the direction of platform no. 7. Both were firing.

He then gave a description of the two terrorists and identified the appellant as the person who loaded his rifle sitting down on the floor of the main hall and who t~rew away his bag. He was then shown the identity card, Article 61. He identified the photograph as that of the taller terrorist who was accompanying the appellant. He was shown a black haversack, Article 219. He identified it as the bag that the appellant had thrown away in the main hall of the local lines. [Para 116,117,118 & 120] [391-C, G- H; 392-A-B, E-F] 1. 5. The evidence of PWs 61 and 102 is extraordinary in that they did not only witness the incidents but also made a visual record of the events by taking pictures of MUJAHID v. STATE OF MAHARASHTRA 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 the appellant and DA-1 as the killers of CST.

Both the witnesses are professional photographers working with a national newspaper. Both of them, caring little for their own safety and displaying exemplary professionalism, followed the killers practically at their heels. Their ocular testimony together with the photographs taken by them provides a graphic picture of the carnage at CST. PW- 61 prepared a CD of the photographs from the memory card, to produce in court. The print-outs were taken from the CD. [Paras 121,122 and 128] [392-G-H; 393-A-B; 395- C] 1. 6. PW-50 and his daughter, aged about 10 years, (PW-51); PW-52; PW-53; PW-86 and her h~usband PW-87; and PW-88, are some of the passenger witnesses. They were in the main hall of the main lines waiting for their respective trains.

They were jolted out of whatever they might be doing or thinking at that moment by the explosion of the first grenade thrown by DA-1 and from that moment they watched, in abject horror, the appellant and his companion firing indiscriminately at the group of passengers in the main hall; DA-1 throwing the second grenade and. then the two moving around on the platforms in different directions until the spray of bullets and the shrapnel from the exploding grenades hit them or one of their group. Some of them were injured in the incident. [Para 150-158] [404-C-E] 1. 7. After coming out of CST, the appellant and DA-1 entered Cama Hospital, and killed 16 persons and injured 17 persons in the hospital and while coming out of it. The killed and injured ones included the police personnel.

The prosecution, with the aid of 11 eye-witnesses, namely, PWs 101,103;105,107,106,109,111,118, ~ 138,128,141 has traced practically every step taken by the appellant and DA-1 from the moment they came out of CST, entered Cama hospital and eventually left the hospital. These were the witnesses who were either themselves injured by the two terrorists or their relatives were either shot dead or injured by the terrorists. PW 118, an IPS Officer had an encounter with the two terrorists in the terrace of the hospital building. PWs 138, 128 and 141 were the other police personnel who saw the two terrorists, namely, the appellant and DA-1, who after coming out of Cama Hospital shot dead a police officer who was directing the persons coming from CST not to proceed further but to go back. They tried to tackle the terrorists but were injured by them. [paras 159-188] [407- A; 406-H; 414-A; 418-C] 1. 8.

PW-138 stated that he saw the appellant and DA- 1 firing at a white car with a red beacon and DA-1 also throwing a hand grenade towards the car. PW-139 was the driver of the said car who was injured by the bullets of the two terrorists. PW-139 also stated before the court that he saw the two terrorists approaching the "High Rise Building" by taking cover behind bushes. At the same time, a police vehicle approached his vehicle and as soon as the police vehicle came close to the two terrorist, who were hiding in the bushes, they started firing at the police vehicle. There was an exchange of fire from the police vehicle also and when firing from police vehicle stopped, the two terrorists went to the vehicle, pulled down bodies of its occupants and drove away in the said vehicle. [para 194-196] [419-8-C, E; 420-F-G] 1. 9. PW-136 was one of the member of the police team in the Qualis which was attacked by the two terrorists and he was badly injured in the attack.

As the two terrorists approached the vehicle, he kept on lying in the rear seat of the vehicle pretending to be dead. The ta!! er one drove the vehicle while the shorter one MOHAMMEDAJMAL MOHAMMAD AMIR KASAB@ABU 311 MUJAHID v. STATE OF MAHARASHTRA occupied the other front seat. After sometime, he heard the sound of firing. The tyre of the vehicle was punctured. The vehicle stopped. The two terrorists left that vehicle and left in another car. PW-144, PW-147 and his wife were the three occupants of the white Skoda car that the appellant and DA-1 snatched at gun-point. [Paras 203, 206, 207, 208, 210, 213, 215, 216] [422-E; 424-C-F; 426-B-C] 1. 10. PW-1, the Sub-Inspector of Police stated that on 26. 11. 2008, at about 22. 00 hours, the Senior Police Inspector told him that terrorists had attacked some parts of South Mumbai and directed him to go to Vinoli Chowpaty along with members of the Crime Detection Branch and to do a nakabandi there by putting up barricades.

Accordingly, he accompanied by 6 members of the Detection Branch, proceeded to Vinoli Chowpaty. On reaching there, they found API, PW-3, alongwith other police personnel already present there and barricades already put up. After some time, API, PW-2 (injured) and an ASI (killed), along with some other policemen, also arrived at the nakabandi. At about 00. 30 hours they spotted a Skoda car on Marine Drive coming from South Bombay towards Chowpaty. Having been alerted in regard to the Skoda, all the policemen, including PW-1, signalled to the driver to stop the car. In the exchange of firing two policemen and both the terrorists were injured. All the injured were taken to hospital where DA- 1 was declared brought dead and the appellant was admitted in the hospital for treatment. Subsequently, one of the two policemen also died in the hospital. The FIR of PW-1 was recorded by PW-31 at 2. 10 hours, giving rise to CR no. 305/2008 (later converted into DCB CID CR no. 182/2008).

[Para 223-224, 228, 230 and 237] [429-E-H; 430-B; 431-D-H] 1. 11. PW-2 was another member of the police team at Vinoli Chowpaty that took the appellant in custody. His deposition was similar to that of PW-1. He was one of the two policemen who were injured by the bullets of the two terrorists. He survived whereas the other died subsequently in the hospital. PW-3 was another Assistant Police Inspector present at the nakabandi at Vinoli Chowpaty on the direction of Senior Police Inspector. His narration of the occurrence was similar to that of PW-1 and PW-2. [Para 240, 241 and 245, 247] [433- H; 434-A, 435-G-H] 1. 12. All the witnesses (except those relating to the Vile Parle and Mazgaon Taxi blasts) had a life and death encounter with the appellant and his associate, (D-A1) at close quarters. The physical appearance of the two terrorists . was etched on their minds. All the witnesses gave a detailed description of the two terrorists to the court.

They described them by their complexion, age, body-built and height, stating that one of them was tall and the other was short. All of them identified the appellant in court as the shorter of the two assailants. They also identified DA1 from the photograph on the fake identity card, Article 61. They also stated before the court that they had identified the appellant in the test identification parades held. This Court accepts their testimony without any hesitation. [Para 263] [441-G; 442- A-C] 1. 13. On the basis of the ocular evidence alone, the appellant, personally and jointly with D-A 1, is directly responsible for killing at least 72 people and causing injuries of various kinds to 130 people. [Para 262] [441- E-F] 1. 14.

Besides the depositions of the prosecution witnesses, the prosecution has an enormous volume of other evidence such as: articles recovered and seized from places through which the two terrorists passed, and the places where they stopped; the vehicles-they used until they were finally caught; medical and forensic MUJAHID v. STATE OF MAHARASHTRA reports, CCTV recordings, phone call records, Station Diary entries, police logs, etc. (Para 262] (441-D-E] 1. 15. From the forensic evidence it further appears that of the 72 dead, at least 6 persons fell to shots fired by the appellant.

Therefore, he is held guilty of multiple 8 murders, murders with common intention and abetment, attempts to murder with common intention and abetment, abducting in order to murder, robbery with attempt to cause death or grievous hurt, and several other allied offences under the Penal Code, committing terrorist act u/s 16 of Unlawful Activities (Prevention) Act, 1967, as well as offences under the Explosives Act, 1884, Explosive Substances Act, 1908, and Arms Act, 1959. [Para 264] (442-D-E] OTHER INCIDENTS OF TERRORISTS' ATTACK: 2. 1. The prosecution has documented the episodes at Leopld Cafe, Hotel Taj, Hotel Oberoi, and Nariman House, as well as Mazgaon Taxi Blast as exhaustively as it has documented the incidents at "CST", "Cam a Hospital", snatching of SKODA car and incident at Vinoli Chowpaty relating to the appellant and D-A 1.

PWs 478, 479, 176, 179, 184, 224, 188,,239, 206, 255, 182,C-W 3, 239, 201, 202, 200, 212, 215, 250 and 208 are substantive witnesses of the incidents at these places. [para 304-308] [458-A-H; 458-A-B] CONSPIRACY: 2. 2. The suggestion that the appellant should only be held liable for acts committed by him in the company of the deceased accused(D-A1) based on the premise that the two were acting independently and separately from the other terrorists who, on arriving at Mumbai, went to four different targets, cannot be accepted. There is no basis for the assumption that the five pairs were not connected to each other by a common conspiracy and that they were not acting in furtherance of a conspiracy that was keeping them bound together even after they had separated physically in order to execute their assigned roles under the conspiracy.

Further, it would be wrong to proceed on such an assumption even without taking into account the evidence of conspiracy that the prosecution has presented with reference to the other aspects of the case and the other venues of the terrorist attack. [para 267) [444-C-D, E-G] 2. 3. Keeping in view the incident at the venues of the terrorists' violence, it cannot be said that the appellant and his dead accomplice (D-A 1), were acting separately and that their actions were not connected in any manner with the offences committed at the other places by the other 8 terrorists with whom they jointly made the sea journey to Mumbai's shore. It is significant to note that the nine dead accused could only be known by their respective names after the appellant identified them through photographs of their dead bodies. Further, the names of the four terrorists at Hotel Taj also came in the evidence of PW-224 and PW-242.

Also the names of the terrorists who went to Hotel Oberoi and Nariman House came through in the transcripts of their intercepted phone calls, in which they are talking with their collaborators. It is obvious that all 5 teams were bound together and each team was acting in execution of a common conspiracy. [para 272 and 309) [446-D-F; 459- C-D] 2. 4. The landing site for the terrorists at Badhwar Park was selected with great care and the selection of the targets for attack was made with even greater care. The attacks at all five targets appear to be integrally connected with each other and the appellant and DA-1 are as much part of the offences committed at the other places as they are responsible for the offences committed by them directly. Therefore, it cannot be said that for the MUJAHID v. STATE OF MAHARASHTRA purpose of the instant appeal, there is no need to go beyond the acts directly attributed to the appellant and his dead associate. [para 310 and 315) [459-E; 461-D-E] 2. 5.

The evidence of conspiracy brought on record 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 explosions in the two taxis; and (iii) the transcripts of the phone conversations between the terrorists and their collaborators and handlers from across the border. The evidence under any of these three heads is sufficient to bring home the charges relating to conspiracy against the appellant. [para 532) [595-C-D] 2. 6. The phase of planning the attack and training for it, which form the core of the conspiracy, took place in Pakistan, and the terrorists, including the appellant, came to Mumbai in execution of the main objects of the conspiracy.

The appellant was apprehended while he was on a killing spree in execution of the objects of the conspiracy and the transcripts of the phone conversation of the other terrorists, associates of the appellant and their foreign collaborators, relate to a time when the speakers were not only free but were actively involved in trying to fulfil the objects of the conspiracy. The transcripts are by no means any confessional statements made under arrest and they are fully covered by the provisions of s. 10 of the Evidence Act. There is no reason not to take them into consideration in support of the charge of conspiracy against the appellant. [para 533) [597-A-C] State v. Nalini 1999 (3) SCR 1 =(1999) 5 sec 253 distinguished. 2. 7. On the basis of the disclosure statement of the appellant recorded by PW-42 at 13. 00 hrs on 27. 11. 2008, a search was mounted for "the abandoned Indian boat" ('Kuber') and it was found and brought to Sassoon Dock in Mumbai with the assistance of the Coast Guard.

Two police officers, namely, PW-48 and PW-42, took the appellant and the two witnesses of the disclosure statement Panchnama, namely, 'PAH' and PW-25, near a wooden boat brought from the sea that was anchored near the jetty. The appellant identified the wooden boat as "the Indian boat" in which he, along with his nine associates, had approached the Mumbai shore and on which he had killed the 'Nakhva' of the boat, whose body he had kept in the engine room. The appellant then led the police team and the panchas to the engine room and showed them the dead body of the 'Nakhva' that was kept in the corner. The appellant then took out a satellite 0 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, and handed them to the police team. The note book contained, inter alia, entries regarding guard roster, phone numbers, satellite number, maps, GPS, arms and ammunitions, and certain places in Mumbai.

[para 318-325 and 329-334] [463-E; 465-D-G] 2. 8. The Thuraya satellite phone and the GARMIN GPS recovered from '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) where the data stored in the GPS devices were analyzed by PW-152. 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 MUJAHID v. STATE OF MAHARASHTRA 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.

PW-161 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. [para 341-344] [471-H; 472- A; 473-C-E; 474-D] 2. 9. The other articles recovered from 'Kuber', namely, blankets, shawls and many other items of clothing contained the stains of sweat, saliva and other bodily secretions which were subjected to DNA profiling and, excepting D-A2, D-A5, D-A7, D-A9, the rest of the six accused were connected with those articles. The appellant's DNA matched the DNA profile from a sweat stain detected on one of the jackets. [para 345] [474-D-F] 2. 10. PW-34 and another person ('PKN') witnessed the seizure of the rubber dinghy under Panchnama Ext. no. 162. From the seizure Panchnama it appears that 14 articles were seized along with the rubber dinghy. Of these, the Yamaha outboard machine that was fitted to the rubber dinghy is of special significance for the case.

From the evidence of PW-154, whose evidence was recorded through audio-video linkage while he was sitting in the office of the FBI at Los Angeles, USA, and PW-153 who was working as a Special Agent of FBI, the prosecution has established that the Yamaha outboard machine fitted to the inflatable rubber boat, was exported to Pakistan. (para 346-349] (475-B-C-G; 476-F; 477-B] 2. 11. At CST a piece of pink coloured foam was found, which inseparably connects the appellant to the other eight terrorists. The pink foam runs like a thread through all the episodes and connecting them as integral pieces of one single, horrible drama. The pink foam pieces recovered from '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.

PW-247, the forensic expert, deposed before the court that all the foam pieces tallied with each other in respect of hue (appearance) and physico-thermal characteristics. He concluded that the source of all the foam pieces was the same. 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. [para 350, 352-359) [478-H; 479-A; 481-G-H; 482-A-C] 2. 12. The most clinching evidence regarding conspiracy comes from the recordings of intercepted telephone calls between the terrorists and their coconspirators and collaborators sitting in a foreign land that, in light of the over all facts and circumstances of the case, can only be Pakistan.

Unlike the appellant and his dead companion (D-A1), who were constantly on the move, the other terrorists had gone to Hotel Taj, Hotel Oberoi and Nariman House and were holed up there, even taking hostages for some time. From their respective positions they were in regular contact with their collaborators and were constantly receiving moral support, tactical advice and guidance from them by means of mobile phones. 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 i. e PW-242. At midnight of 26. 11. 2008, he received information that terrorists were making regular calls from mobile phone no. 9910719424. PW 242 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 MUJAHID v.

STATE OF MAHARASHTRA of November 27, 2008. He stated that the conversation was being heard by him personally and being recorded on t~e hard disk of the computer simultaneously. He stated 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. He named the said callers. He also named the two persons on the other end. In course of the night, PW 242 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. PW 242 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 0 08:52 hours on November 28, 2008.

The total recordings of intercepted phone calls were spread over 12 hours and 33 minutes. The CD recordings of the intercepted phone conversations were played in court on a laptop. Significantly, PW 242 told the court that all the calls from the said 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. [para 360-370] [482-E-F; 483-A-D; 484-D-H; 485-A-E] 2. 13. PW-242 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 PW-156. The evidence of this witness was recorded through audio-video linkage, through the Special Agent of FBI, PW-153. PW 156 stated before the court that he was the owner of International Connection Services (ICS) in New Jersey.

Services of PW 156 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. [para 371, 379-381) [485-F-H; 490- E] 2. 14. 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, for moving through the city, but out of these, 5 mobile phones were relevant, 2 of which were recovered from Hotel Taj, 2 from Nariman House and 1 from Hotel Oberoi. The two phones that were recovered from Hotel Taj are mentioned in Exhibit nos. 749 and 760. Both were Nokia 1200. One of them, a Nokia 1200 phone had the IMEI No. 353526025840890.

It had a Sim card purchased from PW- 259, a retailer in Delhi, in the name of a fictitious person ('SP') 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 PW-242. Two Nokia 1200 phones were also recovered from Nariman House and they found mention in Exhibit no. 771. One of them, a Nokia 1200 phone had the IMEI No. 353526025842235. It had a Sim card belonging to 'GH', who was first taken hostage and was later killed by the terrorists. It appears that the terrorists had taken away the mobile phone of 'GH', took out the Sim card from his mobile and put it in their own mobile phone. A call made through the Sim card of 'GH' would display this number on the receiving phone: 9819464530. This was one of the two numbers that later came to the notice of PW-242. The fifth Nokia 1200 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 of the victims killed by the terrorists at Hotel Oberoi. It appears that her mobile MUJAHID v. STATE OF MAHARASHTRA 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 said Sim card would display the number 9820704561 on the receiving phone. This was the third number that had come to the notice of PW-242. [para 383- 385] [491-A-H; 492-A-C] 2. 15. It is thus clear that the terrorists at Hotel Taj were using a Sim card that was obtained in India under a fictitious name 'SP' 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.

From the materials brought on record, it is evident that all the five Nokia 1200 mobile phones were manufactured in China and were shipped to Pakistan. Exhibit no. 606 is a communication dated February 12, 2009, authenticated by ACP, Enforcement Manager I Americas Nokia Inc. (PW-155) addressed to SA, of F. B. I. (PW-153). The mobile phones and the SIM cards have been produced by the prosecution, 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. [para 386-388] [492-C-E; 494- F~ 2. 16. 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. The conversation between the terrorists and the collaborators evidenced: (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. The sum and substance of the transcripts of talks from Hotel Taj, Hotel Oberoi and Naiman House was exactly on the lines that the terrorists from Nariman House talked to India TV as the transcripts of those interviews would indicate.

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 part of the o 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 which could easily evoke communal violence that would be difficult to contain. The deception was ominous because it aimed at destabilising Indian society and its governments. [para 389,390, 392-400] [494-H; 495-A; 496- B-E; 510-C-F; 511-B] 2. 17. In view of the enormous evidence of all possible kinds it is clear that the terrorist attack on Mumbai was in pursuance of a larger conspiracy of which the appellant was as much part as the nine dead accused and the other wanted accused.

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. MUJAHID v. STATE OF MAHARASHTRA Thus, 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. [para 401] [532-C-F] WAGING WAR AGAINST GOVERNMENT OF INDIA: 3. 1. The appellant has also been convicted on the charge of waging war against the Government of India and is awarded the death penalty u/s 121 IPC.

In addition, he is separately convicted, u/s 121A IPC, for conspiracy to commit offences punishable bys. 121 and s. 122 IPC for collecting arms with intention of waging war against the Government of India, and given life sentences under these two Sections. [para 534] [597-D-F] 3. 2. 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 that whoever, wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine. Section 121A makes a conspiracy to commit offences punishable by s. 121 per se an offence punishable with imprisonment for life or for a period that may extend to 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'. Section 122 similarly makes collection of arms witl:l 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". [para 540-542] [599-F-H; 600-A-F] 3. 3. The expression "Government of India" is used ins. 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 s 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. Thus, the expression "Government of India", as appearing in s. 121, must be held to mean the State or interchangeably the people of the country as the repository of the sovereignty of India which is manifested and expressed through the elected Government. [para 545-546) [601-G-H; 602-A-C] 3. 4. The expression, "in like manner and by like means as a forei{j_n enemy would do" ( as explained in Navjot Sandhu) 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. As explained in Navjot Sandhu, a "terrorist act" and an act of "waging war against the Government of India" may have some overlapping features, but a terrorist act may not always be an act of waging war against the Government of India, and vice-versa. The provisions of Chapter IV of the Unlawful Activities (Prevention) Act and those of Chapter VI of the Penal Code, including s. 121, basically cover different areas. [para 547-548 and 550) [602-G-H; 603-A; 604-F-G] State (NCT of Delhi) v. Navjot Sandhu 2005 (2) Suppl. SCR 79 =(2005) 11 sec 600- relied on Mohd. Arif v. State of Delhi 2011 (8) SCALE 328referred to. MUJAHID v. STATE OF MAHARASHTRA Report of Indian Law Commission with regard to Draft Panel Code in 1847 - referred to. 3. 5.

In the case in hand, the primary and the first offence that the appellant and his co-conspirators committed was the offence of waging war against the 8 Government of India. It does not matter that the target assigned to the appellant and DA-1 was CST Station (stated to be no more than a public building) where they killed a large number of people. What matters is that the attack was aimed at India and Indians. It was by foreign nationals. People were killed for no other reason than they were Indians; in case of foreigners, they were killed because their killing on Indian soil would embarrass India. The conspiracy, in furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its financial centre; to try to give rise to communal tensions and create internal strife and insurgency; to demand that India should withdraw from Kashmir; and to dictate its relations with other countries.

It was in furtherance of those objectives that the attack was made, causing the loss of a large number of people and injury to an even greater number of people. Nothing could have been more "in like manner and by like means as a foreign enemy would do". [para 551] [604-H; 605-A-D] 3. 6. The transcripts of the conversations between the terrorists and their collaborators across the border, the passages of the appellant's confessional statement made before the magistrate stating about instructions given by wanted accused no. 1, wanted accused no. 2, and others in connection with the main purpose of the attack and a number of passages from the transcripts of conversations between the terrorists and their collaborators across the border would show that the attack was clearly an enemy action. [para 552] [605-E-G] 3. 7.

On a careful consideration of the materials on record this Court has no hesitation in holding that the appellant has been rightly held guilty of waging war against the Government of India and rightly convicted u/ ss 121, 121A and 122 of the Penal Code. [para 553] (605- H; 606-A] Due Process: 4. 1. There is no 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. The US Supreme Court has clearly acknowledged and pointed out that the measures to protect the accused against selfincrimination evolved by it under the Miranda rules were already part of the Indian statutory scheme. [para 450 and 453] (557-B-C; 558-C] Miranda v. Arizona 384 US 436 (1966) - held inapplicable Sarwan Singh v. State of Punjab 1957 SCR 953 =AIR 1957 SC 637 (644) - referred to. 4. 2. A bare reference to the statutory provisions namely, ss.

161(2), 162(1), 163 and 164 CrPC read with ss. 25,26, 27 and 32 of the Evidence Act would show that those provisions are designed to afford complete protection to the accused against self-incrimination. It is thus clear that the protection to the accused against any self-incrimination guaranteed by the Constitution is very strongly built into the Indian statutory framework and there is absolutely no reason to draw any help from the Miranda principles for providing protection against selfincrimination to the accused. The right against selfincrimination under Art. 20(3) of the Constitution of India does not exclude any voluntary statements made in exercise of free will and volition. The right against self- MUJAHID v. STATE OF MAHARASHTRA incrimination under Art. 20(3) is fully incorporated in the provisions of the CrPC (s.

161, 162, 163 and 164) and the Evidence Act, as manifestations of enforceable due process, and thus compliance with these statutory provisions is also equal compliance with the Constitutional guarantees. [para 454, 455 and 468] [558- 8 D; 559-C-D; 566-D-E] 4. 3. It is significant to note that the law of the Prevention of Terrorism Act, 2002 (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. In the severe framework of the POTA, certain constitutional safeguards are built into s. 32, and to some extent in s. 52, of the Act. But the mainstream criminal law procedure in India, which is governed by the CrPC and the 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, incorrect to say that what is said in the context of the POTA should also apply to the mainstream criminal law procedure. [para 465] [565- D-F] 4. 4. It is incorrect to say that Art. 22(1) of the Constitution merely allows an arrested person to consult a legal practitioner of his choice and the right to be defended by a legal practitioner crystallizes only at the stage of commencement of the trial in terms of s. 304 CrPC. Art. 22(1) was a part of the Constitution as it came into force on 26. 1. 1950. Code of Criminal Procedure Code, 1973 that substituted the Code of 1898, came into force on 1. 4. 1974. It incorporated the constitutional provisions regarding the protection of the accused against self-accusation. The CrPC also had a provision in s. 304 regarding access to a lawyer. The Constitution and the body of laws comprise an organic structure developing and growing like a living organism. Art.

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'. In furtherance to the ideal of Art. 39-A, Parliament enacted the Legal Services Authorities Act, 1987, that 8 came into force from 9. 11. 1995. 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 Art. 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 u/s 304 of the CrPC. [para 469-470, 471,473 and 475] [566-G-H; 567-8-D; 568-8-C, F; 569-D-E] State of West Bengal v. Anwar Ali Sarkar 1952 SCR 284 =AIR 1952 SC 75 - relied on. 4. 5.

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 it cannot be accepted that any failure to provide legal aid to the accused at the beginning, or before his confession is recorded u/s 164 CrPC, would inevitably render the trial illegal. [para 464] [565-8-C] Directorate of Revenue Intelligence v. Jugal Kishore Samra 2011 (7) SCR 889 = (2011) 12 SCC 362 Poolpandi v. Superintendent, Central Excise 1992 (3) SCR 247 = (1992) 3 SCC 259; Nandini Satpathy v. P. L. Dani 1978 (3) SCR 608 = (1978) 2 SCC 424; D. K. Basu v State of West Bengal 1996 (10) Suppl. SCR 284 = (1997) 1 SCC 416; Karlar Singh v. State of Punjab 1994 (2) SCR 375 = (1994) 3 SCC 569 - referred to. MOHAMMEDAJMAL MOHAMMAD AMIR KASAB @ABU 329 MUJAHID v. STATE OF MAHARASHTRA 4. 6.

It can also not be said that providing a lawyer at the stage of trial would provide only incomplete protection to the accused in case the accused had already made a confession u/s 164 CrPC. The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing. A defense lawyer has to conduct the trial on the basis of the materials lawfully collected in the course of investigation. The true test to judge the Constitutional and legal acceptability of a confession recorded u/s 164 CrPC is whether or not the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in s. 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. o [para 466-467] [565-G-H; 566-A-C] 4. 7.

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, but the Court takes 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. [para 476] [569-F-H; 570-A-B] 4. 8.

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. Accordingly, 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 State expense. The right flows from Arts. 21 and 22(1) of the Constitution and needs to be strictly enforced. This Court accordingly, directs all the magistrates in the country to faithfully discharge the said duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.

[para 484] [573-E-H] 0 Hussainara Khatoon (IV) v. Home Secretary, State of Bihar 1979 (3) SCR 532 =(1980) 1 sec 98; Khatri (II) v. State of Bihar 1981 (2) SCR 408 =(1981) 1 SCC 627- relied on. 4. 9. However, it needs to be clarified 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 s. 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 MUJAHID v. STATE OF MAHARASHTRA 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. [para 485] [574-A-D] 4. 10. 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. [para 487] [574-F- H; 575-A] Suk Das v. UT of Arunachal Pradesh 1986 (1) SCR 590 =(1986) 2 sec 401 - relied on. 4. 11. 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 hav11 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. [para 488] [575-B-C] 4. 12. In the instant case, the appellant was arrested 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. PW-48, accordingly, made a note in "the Record of Formalities to be Followed at the time of Arrest" that intimation of his arrest could not be given to anyone h::i India but information about his relatives was being procured for giving intimation to them (in Pakistan). He also noted in the Arrest Panchnama that the appellant belonged to an economically weaker section. The note in "the Record of Formalities" states that the appellant refused the offer of legal aid made to him.

From the records, it is evident 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 0 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. 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.

He was acting quite independently and, in his mind, he was a "patriotic" Pakistani at war with this country. [para 489, 494 and 495] [575-D-G; 579-B-F] 4. 13. 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. In MUJAHID v. STATE OF MAHARASHTRA the facts of the case, this Court is firmly of the view that there has been no 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. The absence of a lawyer at the pre-trial stage was not only as per the wishes of the appellant himself, but this absence also did not cause him any prejudice in the trial. [para 496-497] [579-F-H; 580-A] Zahira Habibullah Sheikh (5) v. State of Gujarat 2006 (2) SCR 1081 =(2006) 3 sec 374 T. Nagappa v. Y. R.

Muralidhar 2008 (6) SCR 959 =(2008) 5 SCC 63, Noor Aga v. State of Punjab 2008 (10) SCR 379 =(2008) 16 sec 417, NHRC v. State of Gujarat (2008) 16 SCC 497; Jayendra Vishnu Thakur v. State of Maharashtra 2009 (8) SCR 591 = (2009) 7 SCC 104; and G. Someshwar Rao v. Samineni 0 Nageshwar Rao 2009 (11) SCR 676 =(2009) 14 SCC 677; Behram Khursheed v. State of Bombay (1955) 1. SCR 613 and Olga Tellis v. Bombay Municipal Corp. 1985 (2) Suppl. SCR 51 =(1985) 3 SCC 545; Se/vi and others v. State of Karnataka 2010 (5) SCR 381 =(2010) 7 SCC 263; State of Bombay v. Kathi Kalu Oghad [1962] 3 SCR 10 - cited. Davis v. United States 512 US 452 (1993); Berghuis, Warden v. Thompkins 130 S. Ct. 2250 (2010); Dietrich v. R. [1992] 177 CLR 292; R. v. Sinclair [2010] 2 S. C. R. (Canada) 31 O; Sa/duz v. Turkey (2009) 49 EHRR 19; Ambrose v. Harris (Procurator Fiscal, Oban) (Scotland) [2011] UKSC 43 and McGowan, (Procurator Fiscal, Edinburgh) v. B (Scotland) [2011] UKSC 54- cited.

Time allowed to the lawyer for preparation: 4. 14. The counsel was appointed on 16. 4. 2009 to represent the appellant and on his application dated 21. 4. 2009, the court allowed him 8 days' time, which cannot be said to be unreasonable. From the 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, it is evident that the counsel for the appellant was allowed ample time for preparation. It would be pertinent to note that the counsel for the appellant before the trial court never complained about not being given sufficient time. It is also evident that, in the course of the trial, when the counsel for he appellant requested for adjournment for cross-examination of some important witnesses, the court accommodated him on most occasions. Therefore, it cannot be said that the defence was not allowed sufficient time for preparation of the case and that denial of sufficient time vitiated the trial.

[para 500-503] [581-D-G; 582-A-C] Ranchod Mathur Wasawa v. State of Gujarat 1974 ( 2) SCR 72; and Owais Alam v. State of U. P. Criminal Appeal No. 284 of 1968, decided on December 17, 1968 - cited CONFESSION: 5. 1. It is pertinent to note that though the appellant was produced before the Additional Chief Metropolitan Magistrate on 17. 2. 2009, the Magistrate after satisfying herself that the appellant was willing to make the confessional statement voluntarily and not under any pressure, coercion or allurement by police or anyone else, gave him 24 hours time to reflect further on the matte and remanded him to judicial custody. When the appellant was brought back to the Magistrate on 18. 2. 2009, she had another long interaction with him and cautioned him of the consequences of his statement by saying that he should make the statement only if he wished to do so. The appellant said that he was aware of the consequences and he wanted to make the confession.

The Magistrate again gave him a period of 48 hours for further reflection and to reconsider the matter with a composed mind. When the appellant was MUJAHID v. STATE OF MAHARASHTRA produced before the Magistrate on 20. 2. 2012, she again followed the procedure and after satisfying herself that the appellant was willing to make the statement on his volition proceeded to record his statement u/s 164 CrPC. The statement was completed on 21. 2. 2009 in accordance with the procedure prescribed. [para 10-15] [353-D; 354- A-G; 355-A-G] 5. 2. From the text of appellant's confession, it is impossible to hold that the confession is not voluntary and is liable to be thrown out for that reason. However, the censure regarding the mentions of the other two accused in the confessional statement is quite justified, and the references to accused 2 and 3 at three places in the confessional statement is highly unsatisfactory.

The reference to their destination being Malabar Hills when DA-1 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. [para 516] [587-G-H; 588-A-C] 5. 3. 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, appear to be directed against the Pakistani authorities. 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. [para 517] [588-0-G] 5. 4.

As to his knowing the names of many people in Lashkar-e-Toiba, their respective positions in the hierarchy and their roles in the organization, again there is nothing unusual about it. It is to be noted that the appellant was not a mercenary hired for the operation. He was a highly committed and devoted member of the organization and, therefore, there is nothing strange or wrong in his coming to know many people in the organization during the course of his training. Further, it is to be kept in mind that his being caught alive was not part of the plan of the handlers. 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.

[para 519] [589-E-G; 590-A-C] 0 5. 5. Finalli, 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 u/s 164 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. [para 520] [590-D-F] 5. 6. The proof of the voluntariness and the truthfulness of the confessional statement comes directly