Case Analysis Of Mohammad Ajmal Mohammad Amir Kasab @Abu Mujahid Versus State Of Maharashtra [AIR 2012 Supreme Court 3565] Submitted To- Ms. Apurva Verma [Faculty of Law] Submitted By- Aunnesha Dey Semester VII Section C Roll no. 38 Submitted On 24 th August, 2015
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Case Analysis Of
Mohammad Ajmal Mohammad Amir Kasab
@Abu Mujahid
Versus
State Of Maharashtra
[AIR 2012 Supreme Court 3565]
Submitted To-
Ms. Apurva Verma
[Faculty of Law]
Submitted By-
Aunnesha Dey
Semester VII Section C
Roll no. 38
Submitted On 24th August, 2015
Hidayatullah National Law University, Raipur (C.G.)
IN THE SUPREME COURT OF INDIA
Aftab Alam and C.K. Prasad, JJ.
Criminal Appeal Nos. 1899-1900 and 1961 of 2011 and Transfer
Appellants: Mohammed Ajmal Mohammad Amir Kasab @ Abu
Mujahid
Vs.
Respondent: State of Maharashtra
Facts of the Case
1. On November 26, 2008 terrorist masterminds execute an intricate attack on India’s
financial and entertainment capital, Mumbai. With a series of synchronized and
strategically placed bombs, India’s largest city is set ablaze killing 173 people and
wounding 308 more. The devastation is unprecedented causing authorities to fear that
the development of a terrorist group in South Asia is on the rise. In November 2008, 10
Pakistani members of Lashkar-e-Taiba, an Islamic militant organisation, carried out a
series of 12 coordinated shooting and bombing attacks lasting four days
across Mumbai.1 Ajmal Kasab, the only attacker who was captured alive, later confessed
upon interrogation that the attacks were conducted with the support of the Pakistan
government's intelligence agency, the ISI. The attacks, which drew widespread global
condemnation, began on Wednesday, 26 November and lasted until Saturday, 29
November 2008, killing 164 people and wounding at least 308.2 There were many
evidence retrieved by the police. The only controversial element in this part was the
confession statement of Ajmal Kasab was in the police custody and since it was not
deemed to be evidence under Indian Evidence Act.
2. Chattrapati Shivaji Terminal, Mumbai -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.3 They have documented practically
every action and movement of the two killers from the point when Abu Ismail threw the
1 Friedman, Thomas (17 February 2009). "No Way, No How, Not Here". The New York Times.Archived from the original on 20 April 2010. 2"HM announces measures to enhance security" (Press release). Press Information Bureau (Government of India). 11 December 2008. 3 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.
first hand grenade4at 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 the prosecution has presented before the court a
vivid and photographic (figuratively and actually) account of the CST events.
Assistant inspector of police attached to railway- Police station was within the
premise of CST. He heard the sound of firing and he came out running and he saw
two terrorist firing from a place near the public toilet. He said Kasab (appellant)
was wearing blue t shirt and had a rexine bag. The witness was then shown the
identity card recovered from Abu Ismail5. He identified the photograph as that of
the other terrorist, the accomplice of the appellant. While trying to inform the
railway force police he was struck by a bullet in his right arm.
Railway announcer - His job was to announce about the status of the train. 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 he
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. He constatntly started
announcing that CST under terrorist attack and ask people to move for the exit
doors. Then terrorist attack the cabin in which he and other announcers were
sitting and to avoided being hurt he ducked down and remain seated on the floor
for about half an hour and at that time he was in constant contact with officers on
telephone. 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. He identified the
photograph as that of the taller terrorist who was accompanying the appellant. He
4 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.5 The fake identity card with Hindu name given to each member of the group of terrorists by Abu Kafa before leaving for Mumbai
was shown a black haversack. He identified it as the bag that the appellant had
thrown away in the main hall of the local lines.
Photographers from Times of India - Their evidence is extraordinary in that they
did not only witness the incidents but also made a visual record of the events by
taking pictures of the two killers in action and also of their victims. The pictures
taken by these two witnesses, without anything else, are sufficient to conclude the
issue of identification of Kasab and Abu Ismail (deceased accused no.1) as the
killers of CST. Both the witnesses are professional photographers working with
the Times of India group. Both of them, caring little for their own safety and
displaying exemplary professionalism, followed the killers practically at their
heels. Their ocular testimony together with the photographs taken by them
provides a graphic picture of the carnage at CST.
3. Violi Chowpatty Mumbai- 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.
Witness
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. They also stated
before the court that they had identified the appellant in the test identification parades held.
4. Leopold café, Mumbai-Two terrorists 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 and two
passengers.
5. Hotel Tajmahal Palace, Mumbai- They then entered the lobby of the hotel and started
firing with their AK-47 rifles on burst mode.
Executive in a meeting- He was in a meeting and he was one of the hostage and he was
taken to room no 502 with his hand tied and he tried to escape from there when other
accused started building the fire in the room by burning the inflammable objects like
sofa, paper, curtains and it made it difficult for terrorist to breathe and see and they then
escaped by making a rope out of curtain and with the help of fire brigade.
6. Nariman House-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). Residential building cum prayer house for israelis. 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.
7. Oberoi and nearby- Terrorists 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.
8. 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. Eventually entered the
hotel but situation was under control then.
9. Encounter with NSG - The encounter of the two terrorists with the National Security
Guard (NSG) Commando ACSO may be seen in the evidence of Hotel Oberoi, and who
was accompanying the NSG Commandos headed by Colonel Rathi and Lt. Colonel
Sharma in the final encounter with the terrorists.
Issues Raised
1. Whether there was a discovery at the instance of the accused?
2. Whether electronic evidence can be taken into consideration while dealing with such
a horrendous case of mass murder and conspiracy?
Summary of Arguments
1. Whether there was a discovery at the instance of the accused?
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.6
2. Whether electronic evidence can be taken into consideration while dealing with such
a horrendous case of mass murder and conspiracy?
The use of closed circuit televisions (“CCTV”) to nab thieves and other miscreants has
increased in shopping complexes and other public places, where instead of guards being
posted at multiple places, one guard sits at a counter and keeps watch over the entire
place through the CCTV recordings. Thus, both in civil as well as criminal matters,
technology is assuming an increasingly important role to play.
In the case of electronic contracts, the proof of the transactions actually taking place is
available only on emails, often signed with electronic signatures. In criminal proceedings,
the prosecution can now use electronic evidence to prove the guilt of the accused.
However, the progression from an age of no technology to its admissibility in the court of
law has come gradually over a period of time, causing paradigm shifts in many
fundamental principles of the law of evidence.
6 Kasab disclosed 26/11 terror conspiracy hatched in Pakistan: Supreme Court told; The Economic Times; Feburary 15, 2012; Accessed on 23rd August, 2015; Retrieved from http://articles.economictimes.indiatimes.com/2012-02-15/news/31063350_1_mohammad-ajmal-amir-kasab-amar-singh-solanki-indian-boat