Ajmal Kasab (Mumbai 26/11 Attacker) Case Judgement Details

BOMBAY HIGH COURT (D.B.)

Before: Mrs. Ranjana Desai and Ranjit More, JJ
Confirmation Case No. 2 of 2010

State of Maharashtra Versus Mohammed Ajmal Mohammad Amir Kasab, D/d. 21.2.2011

For the Complainant-State :- Ujjwal Nikam, Special Public Prosecutor with Shahajirao Shinde, Additional Public Prosecutor.
For the Respondent-accused :- Amin Solkar with Ms. Farhana Shah, appointed advocates, R.B. Mokashi, Syed Ejaz Abbs Naqvi, I.B. Dixit, Advocates.

A. Criminal Procedure Code, 1973, Sections 303 and 304 - Bombay High Court Criminal Manual, 1961, Chapter 5 Appendix B, Rules 6 and 7 - Terrorist attack - Trial - Legal aid to accused - Terrorist attack on important locations in Mumbai City after conspiracy being hatched in Pakistan - Nine terrorists killed and one captured alive - permissibility and validity of appointment of Defence Lawyer for accused who was not on panel of legal practitioners for legal aid - Considering nature of case, magnitude thereof and voluminous record of the case, it was found necessary to appoint competent lawyer though he was not on the panel of State of legal aid lawyers - Such action is permissible - Lawyer not on panel can be appointed for exceptional reasons to be recorded in writing. [Paras 86, 90 and 92]

B. Constitution of India Article 21 - Right to fair trial - Plea of accused terrorist that sufficient time was not given to his advocate to peruse the record - No time were sought for this purpose by the advocate of the accused - Trial went on for seven months - Advocate of the accused had sufficient time to peruse the record - Speedy trial is also a facet of victim's right safeguarded by Art. 21 - Court has to strike balance between right of accused and right of victims - No prejudice can be said to have been caused to the accused - Contention of accused rejected. [Paras 95 and 96]

C. Criminal Procedure Code, 1973, Section 311 - Evidence Act, 1872, Section 165 - Examination of witnesses - Trial of offence - Prosecution has to examine only those witnesses who would unfold and support prosecution story - It is not necessary for the prosecution to multiply the witnesses for the same purpose. [Para 98]

D. Evidence Act, 1872, Section 24 - Criminal Procedure Code, 1973, Section 164 - Retracted judicial confession - Evidentiary value of retracted confession of accused - Accused a terrorist of Mumbai attack made judicial confession - Sufficient time given to him for reflection and was explained that he was not bound to make confession and his confession may be used against him - No police or persons from investigating agency were present at the time of recording his confession which was also read over to the accused - His signature as well as his right hand thumb impression was taken on his confessional statement - Held that, the requirements of Section 164 Cr.P.C. stood complied with and that such a judicial confession even if retracted subsequently, can still be taken into consideration when corroborated by other evidence. [Paras 110, 111 and 112]

E. Criminal Procedure Code, 1973, Section 164 - Bombay High Court Criminal Manual, 1961, Rule 18(1) - Judicial confession - Procedure for - Recording of judicial confession - Provisions of Rule 18 providing that ordinarily a confession should be recorded in the open Court during the Court hours are directory and not mandatory - They are for guidance of the Magistrate. [Paras 118 and 119]

F. Criminal Procdure Code, 1974, Section 164 - Evidence Act, 1872, Section 24 - Retracted Judicial confession - Reliability of - Held that reliance can be placed even on retracted confession if it is satisfactorily established that the confession is true and voluntary and corroborated on all material particulars - It is open for the Court to reject exculpatory facts and take into consideration inculpatory facts out of the same. [Paras 123 and 127]

G. Criminal Procedure Code, 1973, Section 229 - Accused can plead of guilty at any subsequent stage, even after pleading not guilty to the charges and recording of evidence of witnesses. AIR 1992 SC 2100, Rel. on. [Para 153]

H. Criminal Procedure Code, 1973, Section 229 - Evidence Act, 1872, Section 21 - Plea of guilty retracted subsequently - Accused partially admitting guilt but not admitting all the charges - Shows that the plea of guilty was not made under any pressure - His statement admitting his guilt can be used as corroborative piece of evidence. [Para 162]

I. Evidence Act, 1872, Section 9 - Test identification parade - Photographs of accused shown on T.V. and in newspapers - Effect of - Unusual terrorist attack in various parts of the city - Large number of eye-witnesses including injured eye-witnesses - Proper care was taken while holding the Parade - Dummies who resemble accused were selected - Accused was allowed to change clothes and place and precaution was taken that accused was not seen by the witnesses prior to test identification parade - Held that, merely because photographs of the accused were shown on T.V. and in the news papers, it cannot be presumed that he was seen by all the witnesses - Evidence of identification of accused cannot be rejected on that ground. [Paras 163 and 178]

J. Evidence Act, 1872, Section 9 - Bombay High Court Criminal Manual, 1961 - Test Identification Parade - The guidelines contained in Bombay High Court Criminal Manual for holding T.I. Parade are only directory and not mandatory. 2000 (1) SCC 471, Rel. on. [Paras 165 and 172]

K. Evidence Act, 1872, Section 3 - Reliability of - Evidence of witnesses - Unusual terrorist attack in various parts of City of Mumbai when general public was caught unaware - Large number of eye-witnesses involved - People ran helter shelter to save their lives - Held that, in such circumstances, it will not be right to discard the evidence of a witness on the ground that he did not behave in a particular manner. [Para 182]

L. Criminal Procedure Code, 1973, Section 311 - Evidence Act, 1872, Sections 138 and 165 - Permissibility of recall and re-examination of witnesses and deferring of examination-in-chief - Case of terrorist attack in Mumbai city involving several incidents and having international ramifications - Several experts examined - Huge data had to be co-related - 650 witnesses were examined - Court can recall witnesses when certain clarification was necessary or certain necessary facts were not brought on record if It was necessary for just decision of the case - Such a process adopted, cannot be said to be done to fill in lacuna - There, is no provision in Criminal P. C. restraining Court from deferring the examination-in-chief - Wherever necessary in a given case. [Paras 189 and 190]

M. Indian Penal Code, 1860, Section 300 - Terrorist attack - Appreciation of evidence - Gun shot injury - Absence of singeing, blackening and tattooing around the wound suffered by police officer by itself would not affect the credibility of prosecution case that he was shot from very close quarters - Held that, it rifle comes in close contact with the skin, gun shot injury singeing, blackening and tattooing will not be present. [Paras 386 and 390]

N. Evidence Act, 1872 Section 45 - Experts evidence - If the evidence of eye-witness of the incident inspiring confidence, it will override the expert's evidence - In such a case, even if an expert was not examined, that will not have adverse impact on the prosecution case.[Para 394]

O. Evidence Act, 1872, Section 27 - Discovery at the instance of accused - Terrorist attack at various places of Mumbai City - Terrorists, 10 in number, trained in Pakistan came to Mumbai by hijacking fishing boat belonging to fisherman from Gujarat which was abandoned in the sea after reaching near Mumbai - Information given by the arrested terrorist to the Police regarding fishing boat hijacked by them and later on abandoned by killing navigator on boat - Pursuant to that information, police located the abandoned boat with the help of coastal guards and was brought to dock and body of killed navigator was also recovered - Held that, such a recovery would be the discovery at the instance of accused. [Paras 426 to 429 and 425]

P. Indian Penal Code, 1860 Sections 120-A, 120-B and 121 - Criminal conspiracy - Terrorist attack in various parts of Mumbai City by ten terrorists who came from Pakistan - One of them was arrested while others continued to attack in various places and Hotels - Whether the arrested accused had ceased to be a conspirator at any point of time or after his arrest is a matter to be decided on facts of case. [Para 559]

Q. Indian Penal Code, 1860, Section 120-A - Criminal conspiracy, is an independent of offence punishable separately Principles of - Stated. [Paras 563 and 564]

R. Indian Penal Code, 1860, Sections 121 and 121-A - Waging war against Government of India - Organizing or joining an insurrection against India is also a form of war - Held that, it is the intention to imperil safety of people, to destabilize the Government, to make Government helpless by adopting devious means like keeping people as hostages, trying to dictate terms to Government, destroying public property etc. which gives the offence the character of waging war against Government of India - Prosecution evidence clearly proving that accused were Pakistan nationals who came to city of Mumbai by sea route by hijacking a fishing boat and having fake identity cards showing them students in Bangalore college found on their persons - Recovery of AK 47 rifles, hand grenades, Pistols, RDX to prepare bombs, Mobile phones, GPS on which route from Karachi to Mumbai and Mumbai to Karachi was saved from their possession which shows that they had come fully equipped with arms and ammunition to attack the city as per their unlawful agreement - D.N.A. profile of accused matched with the sweat found on jackets and other articles seized from the boat hijacked by them - Interception of telephonic conversation and transcription of conversation between accused and their handlers in Pakistan showing that while carrying on the attack they were in constant touch with their handlers and were taking advice from their handlers - They were given telephone numbers of T.V. channels in India by their handlers pursuant to their conspiracy which shows that conspiracy was hatched in Pakistan - Held, that the Offence of conspiracy and waging war against Government of India proved. [Paras 670, 677, 700, 707, 714 and 737]

T. Indian Penal Code, 1860, Section 121 - Waging war against Government of India - When sovereign authority of Government is challenged, it amounts to waging of war - Held that, even a terrorist attack by a small group of people can partake the character of offence of 'waging war' against a country. [Paras 740 and 741]

U. Indian Penal Code, 1860, Sections 121 and 121-A - Conspiracy and waging war against Government of India - Terrorist attack by Pakistan nationals at various parts of city of Mumbai - One terrorist was arrested while attack by other terrorists continued - After he was arrested, co-conspirators tried to get him released by holding people hostages - Arrested terrorist never expressed any remorse - He never really severed his connection with conspiracy but loudly proclaimed his association with the same - He would be considered co-conspirator even after his arrest and guilty of offence of waging war against India. [Paras 745 and 746]

V. Railways Act, 1989, Sections 151 and 152 - Causing damage to railways property by making terrorist attack at railway station and death of persons present there - Accused would be guilty of offence under the Railways Act also. [Para 762]

W. Indian Penal Code, 1860, Sections 121 and 121-A - Conspiracy and waging of war against India - Allegations that accused were abettors and perpetrators of crime, provided sketch maps of various places of attack in Mumbai where terrorist attacks were carried on by the terrorists who were Pakistan nationals - They traveled to Nepal to hand over said maps to the terrorists - One of such map prepared by the accused recovered from the trouser pocket of the killed terrorist - However, the evidence of prosecution witness regarding visit of accused to Nepal found not reliable - Prosecution failed to prove that the maps were handed over to the terrorists - Blood-stains were found on the trouser of killed terrorist, no wrinkles or blood-stains were found on the map alleged to have been recovered from his trouser pocket - Accused held entitled to benefit of doubt. [Paras 776, 851 and 860]

X. Criminal Procedure Code, 1973, Section 366 -Indian Penal Code, 1860, Sections 300, 109, 120-B and 121 - Unlawful Activities (Prevention) Act, 1967, Section 16 - Death sentence - Confirmation of - Conspiracy to wage war against India, proved - Extreme brutality and cruelty shown by the arrested terrorist while carrying on the attack on innocent people - Accused planted bomb and committed multiple murders of innocent men, women and children without any provocation but for the motive which had no moral justification - Conduct of accused showing that his mental age overriding his physical age - Accused never showed any repentance and loudly proclaiming that he wants to create more Fidayeen attacks - Accused neither mentally unstable nor emotionally disturbed - The only mitigating circumstance was age of the accused stood mitigated - Any misplaced or unwarranted sympathy would be counter-productive in such cases - Therefore, the punishment must befit the crime, no doubt the rights of victims must also be kept in mind - Soft handling of such case would erode public confidence in the efficacy of law - It is rarest of rare case which would certainly attract death sentence - Death sentence confirmed - Appeal of accused/convicted dismissed. [Paras 893 to 898]

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JUDGMENT

Smt. Ranjana Desai, J. - Accused 1 - Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid (for convenience, "A1-Kasab") was tried along with two others viz. Fahim Harshad Mohammad Yusuf Ansari @ Abu Jarar @ Sakib @ Sahil Pawarkar @ Samir Sheikh @ Ahmed Hasan (since acquitted) (for convenience, "A2-Ansari") and Sabauddin Ahamed Shabbir Ahmed Sheikh @ Saba @ Farhan @ Mubbashir @ Babar @ Sameer Singh @ Sanjiv @ Abu-Al- Kasim @ Iftikhar @ Murshad @ Mohammad Shafiq @ Ajmal Ali (since acquitted) (for convenience, "A3- Shaikh") in Sessions Case No.175 of 2009 by the Court of Sessions for Greater Mumbai for offences punishable under Sections 120-B, 121 r/w 120-B r/w 109, 121-A, 122 r/w 120-B r/w 109, 302 r/w 120-B r/w 109, 307 r/w 120-B r/w 109, 333 r/w 120-B r/w 109, 342 r/w 120-B r/w 109, 343 r/w 120-B r/w 109, 364 r/w 120-B r/w 109, 465 r/w 120-B r/w 109, 468 r/w 120-B r/w 109, 419 r/w 120-B r/w 109 of Indian Penal Code (for short, "IPC"), under Sections 25(1B)(a) of Arms Act r/w 120-B r/w 109 of the IPC 25(1A) of Arms Act r/w 120-B r/w 109 of IPC, 25(2)(3) of Arms Act r/w 120-B r/w 109 of IPC, 27 of Arms Act r/w 120-B r/w 109 of IPC, under Sections 10, 13, 16, 18 and 23 of the Unlawful Activities (Prevention) Act, 1967, under Sections 9-B(1)(a)(b) of Explosives Act r/w 120-B r/w 109 of IPC, under Sections 3 of the Explosives Substances Act r/w 120-B r/w 109 of IPC, under Sections 4(a) of Explosives Substances Act r/w 120-B r/w 109 of IPC, under Sections 3(3) of Passport (Entry into India) Act, 1920 r/w 120-B r/w 109 of IPC, under Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 r/w 120-B r/w 109 of IPC, under Sections 151, 152 and 153 of the Railways Act r/w 120-B r/w 109 of IPC, under Section 135 of the Customs Act r/w 120-B r/w 109 of IPC, under Section 14 of Foreigners Act r/w 120-B r/w 109 of IPC.
2. In addition to that, A1-Kasab was also charged for the offences punishable under Sections 302 r/w 34, 307 r/w 34, 333 r/w 34, 342 r/w 34, 343 r/w 34, 364 r/w 34, 465 r/w 34, 468 r/w 34, 419 r/w 34 of IPC under Sections 25(1B)(a) of Arms Act r/w 34 of IPC, under Section 25(1A) of the Arms Act r/w 34 of IPC, under Section 25(2)(3) of Arms Act r/w 34 of IPC, under Section 27 of Arms Act r/w 34 of IPC, under Section 9-B(1)(a)(b) of Explosives Act r/w 34 of IPC, under Section 3 of Explosives Substances Act r/w 34 of IPC, under Section 4(a) of Explosives Substances Act r/w 34 of IPC, under Section 3(3) of Passport (Entry into India) Act, 1920 r/w 34 of IPC, under Sections 3 and 4 of Prevention of Damage to Public Property Act, 1984 r/w 34 of IPC, under Sections 151, 152 and 153 of the Railway Act r/w 34 of IPC, under Section 135 of Customs Act r/w 34 of IPC, under Section 14 of Foreigners Act r/w 34 of IPC.
3. Further A1-Kasab was also charged independently for the offences punishable under Sections 302, 307, 333, 342, 343, 364, 465, 468, 419 and 397 of the IPC, under Sections 25(1B)(a), 25(1A), 25(2)(3), 27 of Arms Act, under Section 9-B(1)(a)(b) of Explosives Act, under Section 3 and 4(a) of Explosives Substances Act, under Section 3(3) of the Passport (Entry into India) Act, 1920, under Sections 3 and 4 of Prevention of Damage to Public Property Act, 1984, under Sections 151, 152 and 153 of the Railway Act, under Section 135 of the Customs Act, under Section 14 of the Foreigners Act.
4. A2-Ansari was also independently charged for the offences punishable under Sections 465 and 471 of the IPC.
5. For trying the accused under Sections 121, 121A and 122 of the IPC, for offences under the Unlawful Activities (Prevention) Act, 1967, for offences under the Customs Act and for offences under the Arms Act, sanctions were required under Sections 188 and 196 of the Code of Criminal Procedure, 1973 (for short, "the Code") under Section 39 of the Arms Act, under Section 45 of the Unlawful Activities (Prevention) Act, 1967 and under Section 135 of the Customs Act respectively. Consent of the District Magistrate for trying the accused for offences under the Explosive Substances Act, 1908 was necessary. Learned Sessions Judge has returned a finding that the necessary sanctions were taken. There is no challenge to this finding before us, hence it is not necessary for us to go into that aspect. In any case, we have perused the relevant evidence and, we are of the opinion that the said finding is correct.
6. By the impugned judgment and order dated 6/5/2010, A2-Ansari and A-3 Shaikh have been acquitted of all the charges and A-1 Kasab is convicted of the offence punishable under Section 120-B r/w Section 302 of the IPC and is sentenced to death and is further sentenced to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month.
He is further convicted of the offence punishable under Section 121 of the IPC and is sentenced to death and is further sentenced to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is also convicted of the offence punishable under Section 16 of the Unlawful Activities (Prevention) Act, 1967 and is sentenced to death and is further sentenced to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is further convicted of the offence punishable under Section 302 of the IPC for having committed murder of - (1) Amarchand Naran Solanki (deceased at Sr.No.129), (2) Sitaram Mallapa Sakhare (deceased at Sr.No.83), (3) Rahamuttal Ibrahim (deceased at Sr.No.84), (4) Vinod Madanlal Gupta (deceased at Sr.No.86), (5) Ambadas Ramchandra Pawar (deceased at Sr.No.93), (6) Abbas Rajjab Ansari (deceased at Sr.No.112), (7) Tukaram Ombale (deceased at Sr.No. 130) and is sentenced to death and is further sentenced to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month.
He is further convicted of the offence punishable under Section 302 r/w Section 34 of the IPC and under Section 302 r/w Sections 109 and 120-B of the IPC and is sentenced to death and is further sentenced to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is convicted of the offence punishable under Section 307 r/w Section 34 of the IPC and under Section 307 r/w Section 109 r/w Section 120-B of the IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is further convicted of the offence punishable under Section 392 r/w Section 34 of the IPC and is sentenced to suffer rigorous imprisonment for a term of 5 (five) years and to pay a fine of Rs. 5000/- (Rupees Five Thousand only) in default to suffer simple imprisonment for 15 days. He is also convicted of the offence punishable under Section 397 of the IPC and is sentenced to rigorous imprisonment for a term of 7 (seven) years and is sentenced to pay a fine of Rs. 5000/- (Rupees Five Thousand only) in default to suffer simple imprisonment for 15 days. He is convicted of the offence punishable under Section 364 of the IPC and is sentenced to suffer imprisonment for life and to pay a fine of Rs. 5000/- (Rupees Five Thousand only) in default to suffer simple imprisonment for 15 days. He is also convicted for the offence punishable under Section 333 r/w Section 34 of the IPC and under Section 333 r/w Section 109 r/w Section 120-B of the IPC and is sentenced to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 1000/- (Rupees One Thousand only) in default to suffer simple imprisonment for 15 days.
He is also convicted for the offence punishable under Section 332 r/w Section 34 of the IPC and under Section 332 r/w Section 109 r/w Section 120-B of the IPC and is sentenced to suffer rigorous imprisonment for 2 (two) years and to pay a fine of Rs. 1,000/- (Rupees One Thousand only) in default to suffer simple imprisonment for 15 days. He is further convicted of the offence punishable under Section 121-A of the IPC and is sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is further convicted of the offence punishable under Section 122 of the IPC and is sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is further convicted of the offence punishable under Section 25(1B) (a) of the Arms Act and is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/- (Rupees Five Hundred only) in default to suffer simple imprisonment for one week. He is further convicted of the offence punishable under Section 25(1A) of the Arms Act and is sentenced to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 1,000/- (Rupees One Thousand only) in default to suffer simple imprisonment for two weeks.
He is further convicted of the offence punishable under Section 27 of the Arms Act and is sentenced to suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Rs. 1,000/- (Rupees One Thousand only) in default to suffer simple imprisonment for one week. He is further convicted of the offence punishable under Section 9-B(1)(a)(b) of the Explosives Act and is sentenced to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/- (Rupees Five Hundred only) in default to suffer simple imprisonment for one week. He is further convicted of the offence punishable under Section 3(b) of the Explosive Substance Act, 1908 and is sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is further convicted of the offence punishable under Section 151 of the Railways Act and is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/- (Rupees One Thousand only) in default to suffer simple imprisonment for 15 days. He is further convicted of the offence punishable under Section 153 of the Railways Act and is sentenced to suffer rigorous imprisonment for one year. He is further convicted of the offence punishable under Section 3(3) of the Passport (Entry into India) Act, 1920 and is sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 100/- (Rupees One Hundred only) in default to suffer simple imprisonment for 7 (seven) days. He is also convicted of the offence punishable under Section 135(1)(a) of the Customs Act and is sentenced to suffer rigorous imprisonment for a term of 7 (seven) years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is also convicted of the offences punishable under Section 342 r/w Section 34 of the IPC and under Section 342 r/w Section 109 r/w Section 120-B of the IPC and is sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 100/- (Rupees One Hundred only) in default to suffer simple imprisonment for 7 (seven) days. He is also convicted of the offence punishable under Section 343 r/w Section 34 of the IPC and under Section 343 r/w Section 109 r/w Section 120-B of the IPC and is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 200/- (Rupees Two Hundred only) in default to suffer simple imprisonment for 15 days. He is also convicted of the offence punishable under Section 436 of the IPC and is sentenced to suffer rigorous imprisonment for a period of five years and to pay a fine of Rs. 5000/- (Rupees Five Thousand only) in default to suffer simple imprisonment for 15 days. He is also convicted of the offence punishable under Section 3 of the Prevention of Damage to Public Property Act and is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is also convicted of the offence punishable under Section 4 of the Prevention of Damage to Public Property Act and is sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is also convicted of the offence punishable under Section 13 of the Unlawful Activities (Prevention) Act, 1967 and is sentenced to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is also convicted of the offence punishable under Section 18 of the Unlawful Activities (Prevention) Act, 1967 and is sentenced to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is also convicted of the offence punishable under Section 20 of the Unlawful Activities (Prevention) Act, 1967 and is sentenced to suffer rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in default to suffer simple imprisonment for one month. He is also convicted of the offence punishable under Section 14 of the Foreigners Act and is sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/- (Rupees Five Hundred only) in default to suffer simple imprisonment for one week. No separate sentence is imposed for the conspiracy to commit other offences which are minor in nature as the sentence of death has already been awarded to the accused for the offence punishable under Section 120- B r/w Section 302 of the IPC. Similarly, offences committed in furtherance of common intention and similar offences abetted by A1-Kasab have been made punishable with one and the same punishment and no separate sentence is awarded for the same offence covered by Sections 34 and 109 r/w Section 120-B of the IPC.
7. As required by Section 366 of the Code, the present Reference has been submitted to this court by the Court of Sessions for Greater Mumbai.
8. A1-Kasab has preferred Criminal Appeal No.738 of 2010 which has been admitted by this court. Being aggrieved by the judgment and order of acquittal of A2- Ansari and A3-Shaikh, the State of Maharashtra has preferred Appeal No.606 of 2010, which has also been admitted by this court. Some arguments were advanced on the question as to whether we should hear the confirmation case first or we should hear the appeal filed by A1-Kasab first. Mr. Nikam, learned Special Public Prosecutor submitted that the appeal filed by A1-Kasab should be heard first. Mr. Solkar, learned appointed advocate for A1-Kasab submitted that the confirmation case should be heard first and the appeal may be heard thereafter. Since A1-Kasab wanted the confirmation case to be heard first and also in view of the judgment in Emperor v. Narayan Ramchandra Jarag (1948) 50 Bom.L.R. 151, by a reasoned order dated 7/10/2010, we took a decision to hear the confirmation case first. That order is not challenged. Since the confirmation case and appeal filed by the State of Maharashtra and the appeal filed by A1-Kasab arise out of the same facts and circumstances and arise out of the same Sessions Case, they are being disposed of by this common judgment and order.
9. It must be stated here that so far as order passed by learned Sessions Judge acquitting A2-Ansari and A3- Shaikh is concerned, it is not possible for us to disturb it because the view taken by learned Sessions Judge is a reasonably possible view. In our opinion, it cannot be called perverse. We shall give our reasons for this finding at the appropriate stage when we deal with the appeal filed by the State. We shall first deal with the confirmation case and the appeal filed by A1-Kasab and then go to the State appeal. As per the prosecution case, A1-Kasab and deceased A1-Abu Ismail had actually participated in the crime committed at various places. A1-Kasab being the only surviver, he is tried by learned Sessions Judge. This being a case of conspiracy, learned Sessions Judge had to also examine the involvement of deceased accused and he has given findings only as regards their involvement. So far as the wanted accused are concerned, they obviously cannot be tried for any offence in their absence. Again being a case of conspiracy, learned Sessions Judge had to consider their involvement while considering A1-Kasab's involvement. He has, therefore, considered their involvement. We find this course to be perfectly legal and valid.
10. Before we begin with the facts, we must note that A1-Kasab conveyed to us through his counsel Mr. Solkar that he wants to remain present in this court during the hearing of the confirmation case. An application was filed to that effect. The State filed its reply. By a detailed order dated 20/9/2010, considering the threat perception expressed by the police we rejected that prayer. Relying on the judgments of the Supreme Court in State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601 and Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr., (2005) 3 SCC 284, we directed the State to make arrangement for Video Conferencing so that A1-Kasab can see the court proceedings and can hear the arguments. Accordingly, arrangement has been made. A1-Kasab has intermittently availed of the Video Conferencing facility.
11. This confirmation case relates to the horrific terrorist attack made on important locations like Hotel Taj, Hotel Oberoi, Chatrapati Shivaji Terminus (for short, "CST") which are the pride of Mumbai, on the night of 26/11/2008. The terrorist attack continued upto early hours of 29/11/2008. In this terrorist attack, 166 persons died and 238 persons were injured. There was colossal property loss to the tune of about Rs. 155,56,77,105/-. The prosecution case is that this attack was masterminded by Pakistan based terrorist organization viz. Laskhar-e-Taiba (for short, "Let"), which is now known as Markaz-ud-Dawa-wal-Irshad. LeT has its training camps in Pakistan Occupied Kashmir (for short, "Pok").
12. In this terrorist attack, A1-Kasab, A2-Ansari and A3-Shaikh, nine deceased accused and 35 wanted accused were involved. The names of the nine deceased accused are as under :

1. Ismail Khan @ Abu Ismail. Resident of Dera Ismail Khan, Punjab, Pakistan.

2. Imran Babar @ Abu Aakasha. Resident of Multan, Punjab, Pakistan.

3. Nasir @ Abu Umar. Resident of Faislabad, Pakistan.

4. Nazir @ Abu Umer. Resident of Faislabad, Pakistan.

5. Hafiz Arshad @ Abdul Rehaman Bada @ Hayaji. Resident of Multan Road, Punjab, Pakistan.

6. Abadul Reheman Chhota @ Saakib. Resident of Arafwala, Multan Road, Punjab, Pakistan.

7. Fahad Ullah. Resident of Ujarashamnkam, Dipalpur, Harun Shaikh, Kasoor Road, Pakistan.

8. Javed @ Abu Ali. Resident of District Okara, Punjab, Pakistan.

9. Shoaib @ Abu Soheb. Resident of Naroral, Shakkar Road, Siakot, Punjab, Pakistan.

They shall be referred to as "deceased A1" to "deceased A9" respectively.

13. Names of 35 wanted accused are as under :

1. Hafeez Mohammad Saeed @ Hafiz @ Hafiz Saab

2. Zaki-Ur-Rehaman Lakhvi

3. Abu Hamza

4. Abu Al Kama @ Amjid

5. Abu Kaahfa

6. Mujja Mil @ Yusuf

7. Zarar Shah

8. Abu Fahad Ullah

9. Abu Abdul Rehman

10. Abu Anas

11. Abu Bashir

12. Abu Imran

13. Abu Mufti Saeed

14. Hakim Saab

15. Yusuf

16. Mursheed

17. Aakib

18. Abu Umar Saeed

19. Usman

20. Major General Saheb - (Name not known)

21. Kharaksing

22. Mohammad Ishfak

23. Javid Iqbal

24. Sajid Iftikhar

25. Col. R. Sadat Ullah

26. Khurram Shahdad

27. Abu Abdur Rehaman

28. Abu Mavia

29. Abu Anis

30. Abu Bashir

31. Abu Hanjla Pathan

32. Abu Saria

33. Abu Saif-Ur-Rehman

34. Abu Imran

35. Hakim Saheb.

They shall be referred to as "wanted A1" to "wanted A35" respectively.

14. The gist of the prosecution story as evident from the direct and circumstantial evidence adduced by the prosecution and by the confessional statement of A1- Kasab recorded under Section 164 of the Code which according to the prosecution is broadly corroborated by the other evidence and events on record, is as under.
15. A1-Kasab is a Pakistani national. A2-Ansari is a permanent resident of Goregaon, Mumbai and A3-Shaikh is a permanent resident of Bihar. According to the prosecution a conspiracy was hatched within Pakistan and India by the 35 wanted accused, 9 deceased accused and arrested accused A1-Kasab, A2-Ansari and A3-Shaikh during the period between December, 2007 and November, 2008 to wage war against the Government of India to allegedly liberate Kashmir and to that end to commit various offences punishable under the IPC and other enactments. The accused collected arms and ammunition within and outside India to achieve the object of the conspiracy. They conspired to overawe by means of criminal force and by show of criminal force, the Central Government and the Government of Maharashtra.
16. A1-Kasab and 9 deceased accused were trained by the wanted accused at Muridake and Manshera in PoK. A2-Ansari and A3-Shaikh did not take part in actual training but their role was to assist the other accused by providing them with sketch maps of various places of Mumbai. A2-Ansari had prepared sketch maps of various locations of Mumbai and he had travelled to Nepal from Mumbai to handover the said sketch maps to A3-Shaikh. A3-Shaikh had delivered the said maps to the perpetrators of the crime in Pakistan. The attack on India was led by wanted A1-Hafeez Mohammad Saeed acting as Major of LeT. Wanted A2-Zaki-Ur-Rehaman Lakhvi, a senior leader of LeT has also acted as a key figure in this attack.
17. We have already referred to the confessional statement of A1-Kasab. We shall deal with all legal submissions advanced in respect of the said statement at the appropriate stage. We shall narrate the relevant portion thereof after we deal with every incident. For the present, we may only state that the following part of the prosecution story is drawn from the confessional statement of A1-Kasab which according to the prosecution is the catalogue of events and naturally fits in with the rest of the evidence and surrounding circumstances. A1-Kasab hails from Village Faridcot, Zilla Okara, District Punjab, Pakistan. He has studied upto 4th standard in Urdu Medium School in Pakistan. In 2000, he left the school and went to Lahore with his father to find a job. A1-Kasab was staying in Lahore with his father. He was doing labour work. Due to some quarrel between him and his father over money, he started staying independently. A1-Kasab came in contact with one Shafiq. They started working with Welcome Tent Service. There, A1-Kasab came in contact with Mujjafar Lal Khan. A1-Kasab and Mujjafar Lal Khan left Lahore for Rawalpindi in 2007 for a better job. They started staying at Bangash colony. They were impressed by persons belonging to LeT because they appeared to be fighting for so called liberation of Kashmir in the name of Jamat-Ul-Dawa. A1- Kasab and Mujjafar Lal Khan attended camps organized by persons belonging to Jamat-Ul-Dawa, who were associated with LeT. They attended the camps and decided to take training for Jihad. In December, 2007, they went to the office of LeT at Raza Bazar, Rawalpindi for that purpose. They were asked to go to Daura-e-Sufa, Markaz Taiba Muridake. Accordingly, they reached the camp of LeT. Wanted A8-Fahad Ullah gave them entry at Daura-e-Sufa. Wanted A8-Fahad Ullah and wanted A13- Abu Mufti Saeed trained them for 21 days. Wanted A1, A2, A3, A4, A6 and A18 were introduced to A1-Kasab and other trainees. Wanted A1-Hafeez and wanted A2-Zaki- Ur-Rehaman told them that it was time for Jihad and Kashmir could be acquired only after waging war against India. Wanted A4-Abu Al Kama told the trainees that big cities of India were to be targeted. By such attacks, India could be weakened from inside and that, one who dies in Jihad would get place in heaven. Due to such indoctrination, the trainees were prepared to attack India. In February, 2008, they were chosen for Daura-e-Aam training. Wanted A8-Abu Fahad Ullah gave them a note and sent them to Mansera Markaz Aksa. From there, they were sent to Battal village. Thereafter, the trainees were given further rigorous training for 21 days at Battal which included use of arms and ammunition, training in folding and unfolding weapons, etc. After this training, the trainees were permitted to go home or serve the other trainees. A1-Kasab did not go home but chose to serve the other trainees. The other trainees were trained by wanted A9, A10, A11 and A15. After that training, A1- Kasab and others were told to go to the office of LeT in Model Town at Okara for Daura-e-Khas. Accordingly, they went to LeT office at Model Town. From Model Town, they got the address of LeT office of Mujjafarabad. They went to the office of LeT camp at Mujjafarabad. Mujjafarabad is in PoK. They went to that camp. They were further trained at Maskar Aksa, Mujjafarabad in PoK for 60 days. Wanted A28 was the trainer during this period. They were trained in using arms and ammunition like AK-47, use of launchers, satellite phones, hand grenades, map reading (G.P.S.), etc. Wanted A31 also trained them. During this training, one stranger, wanted A20-Major General came there. Wanted A5-Abu Kaahfa told them that he was Major General and the trainers were his people. Major General's name was not told to them. Wanted A20-Major General talked to them. He enquired about their training. After this training, wanted A28-Abu Mavia gave A1-Kasab money, asked him to go home and on his way back, go to the office at Baitul. A1- Kasab accordingly went home and on his return journey went to Baitul. From there, A1-Kasab was then taken to selection point by wanted A28. About 20 to 22 trainees were present at the selection point. A CD was shown to the trainees as to how a Fidaeen attack was carried out in Kashmir. P> Wanted A4 addressed the trainees about how Fidaeen attacks are carried out successfully in Kashmir.
18. Wanted A1 selected 15 persons including A1-Kasab for Fidaeen attacks. They were given different names. A1-Kasab was named Abu Mujahid. The said 15 persons were sent for training known as Daura-e-Ribat. This training was inter alia for intelligence collection, harbouring knowledge of targets, keeping watch on targets and escaping in case of target attacks. They were also trained to misguide people by giving false identity. Wanted A18 was supervising the training. The training was given by wanted A5 and wanted A34. During this training, wanted A20-Major General came there twice. He directed that they should be given marine training. This training got over in August, 2008. In September, 2008, Ramzan month started. They were then taken to Karachi by wanted A5 and marine training was given to them by wanted A35 for 3 days. They were trained to read maps, use G.P.S. to ascertain routes in the sea, etc.
19. On the 13th day of Ramzan, wanted A1 Hafeez Mohammad Saeed and wanted A2-Zaki-Ur-Rehman Lakhvi and other wanted accused called the trainees to their office at Baitul Mujahid. Thereafter, they were taken back to Baitul. Some of them were sent to Kashmir for terrorist attack and three more persons were admitted in their group. They are deceased A1-Abu Ismail, A7-Abu Fahadulla, A8-Abu-Ali. The trainees were told that time for Jihad had come. The financial strength of India depends on the income of commercial capital Mumbai and, therefore, it was necessary to attack Mumbai and they had to reach Mumbai by sea. At that time, wanted A20- Major General came there. He asked them to give a demonstration of firing. He appreciated the firing of A1- Kasab and, he went away. Thereafter, they were introduced to wanted A7-Zarar Shah, a computer expert, who trained them to misguide people by showing a phone call made from Pakistan as a call made from some other country. They were told that wanted A7 had installed a hi-tech media room where maps, CDs and other information of other countries is collected and kept. He selects targets from them and informs wanted A2.
20. Thereafter, wanted A1-Hafeez Saeed and wanted A2- Zaki-Ur-Rehaman made five pairs of the 10 trainees. At that time, wanted A2-Zaki-Ul-Rehman told them that on Friday, the 27th, they have to launch a terror attack on Mumbai. Wanted A1-Hafeez Saeed told them that one Indian boat needs to be hijacked to go to Mumbai from Karachi. He told them that they have to attack people at CST, Malabar Hill, Hotel Taj, Hotel Leopold and Nariman House where Israeli people live. American, British and Israeli people have to be selected and killed because they have inflicted miseries on them. They were asked to explode RDX bombs near targets so that police who come to help and other people will be killed due to traffic jam. They were asked to launch the attack at 7.30 p.m. because at that time there will be huge crowd. The trainees were told that they would be given identity cards bearing Hindu names and they had to tie a thread on their wrists which is normally tied by Hindus in India.
21. It was decided that A1-Kasab and deceased A1-Abu Ismail would carry out attack at CST and Malabar Hill, deceased A5-Hafiz Arshad @ Abdul Rehman Bada @ Hayaji and deceased A8-Javed @ Abu Ali would attack Taj Hotel, deceased A7-Fahad Ullah and deceased A6-Abdul Rehman Chhota @ Saakib would attack Hotel Oberoi and deceased A2-Imran Babar @ Abu Akasha and deceased A3-Nasir @ Abu Umar would attack Nariman House. It was also decided that deceased A9-Shoaib @ Abu Sohib and deceased A4-Nazir @ Abu Umer would after firing at Hotel Leopold join deceased A5-Hafiz Arshad and deceased A8-Javed @ Abu Ali at Hotel Taj. It was further decided that A1-Kasab would plant a bomb in a taxi which he would be hiring to reach CST Station and deceased A4- Nazir @ Abu Umer would plant a bomb in a taxi which he would be hiring for going to Hotel Leopold. The other trainees were also directed to plant bombs near the proposed places of attack. The strategy was that the attackers of Nariman House and Taj Hotel would keep some persons as hostages and speak to media. They would disclose their identity as Indian Muslims and throw challenge to the Indian Government for liberating Muslims. Thereafter, preparation was made for the proposed attack on Mumbai. They were shown maps of various places of Mumbai like CST and Malabar Hill.
22. Maps drawn by A2-Ansari were shown to the trainees. On 15th day of Ramzan, they were given practice of firing from AK-47 rifles. They were trained to prepare tiffin bombs of RDX and to install timers in these bombs. On the next day, they were directed to remove their mustache and beard. Their photographs were taken for identity cards. On the 17th day of Ramzan, they were taken to the same house at Karachi where they were staying. On the 18th day of Ramzan, all the trainees were directed to put their names on the labels affixed to the timers of bombs and they were kept by wanted A5-Abu Kaafa in his custody. The identity cards bore their photographs, Hindu names and fake particulars. They were trained to inflate inflatable boat and to remove it's valve. They were also trained as to how bomb could be placed below driver's seat in a running car.
23. On 21/11/2008, all of them came to a house near a creek. Wanted A2, A3, A7 and A5, deceased A3 and A4 were there. Wanted A2 declared deceased A1-Abu Ismail as the leader of this mission. Wanted A3 handed over arms and ammunition which were kept in the boxes to deceased A1-Abu Ismail. Wanted A3 gave money to each pair. Wanted A7 gave each one of them one mobile. Wanted A7 told them that in order to misguide Indian people, Indian Sim cards have been put in the mobiles and they should be activated when they reach Mumbai. They were told by wanted A2 that their numbers (handlers numbers) were fed in the said mobiles on which they (handlers) could be contacted by pressing the green button. He gave one number to deceased A1-Abu Ismail which he noted in his diary. A1-Abu Ismail noted particulars about areas of Mumbai in the diary. Wanted A2 gave one satellite phone to deceased A1-Abu Ismail and he went away.
24. Deceased A1-Abu Ismail gave each one of them one big sack, one AK-47, 8 magazines, 240 rounds, 8 hand grenades, 1 rifle, 1 pistol and 3 magazines thereof, 21 rounds, 1 headphone, batteries and 1 charger. He then gave them one small sack each with RDX bomb kept in a tiffin bomb inside the same. He gave each pair GPS system and one pouch.
25. They cleaned their AK-47 rifles and pistols. They inserted 30 rounds in the magazines of AK-47. They inserted 7 rounds in each pistol. They tied 2 magazines to their AK-47 with tapes. In the night, they kept the bags in the vehicle of LeT. Deceased A1-Abu Ismail asked each one them to keep their Indian identity cards in their respective pockets which they did. In the night, wanted A3 and A5 asked them to note the latitude and longitude so that with the help of GPS they can easily reach Mumbai. They did as directed.
26. On 22/11/2008 A1-Kasab and nine deceased accused proceeded to the creek where wanted A2-Zaki-Ur- Rehaman Lakhvi was present. He told them that the pairs of terrorists who would be occupying Nariman House, Hotel Taj, Hotel Oberoi, would try to contact the media. They were given the sketch maps prepared by A2-Ansari and A3-Shaikh. A1-Kasab and deceased A1-Abu Ismail were given the sketch map indicating road map leading to CST and Malabar Hill. They were told to tear off the maps after reaching their destination. Around 7.00 p.m., A1- Kasab and the nine deceased accused were taken to a big marine vessel in high sea where wanted A14-Hakim Saab was present along with his three associates. The haversacks containing arms and ammunition and other articles to be carried by A1-Kasab and the deceased accused were transported to seashore in a separate vehicle. They were also loaded in the said big marine vessel. At about 9.00 p.m., A1-Kasab and the deceased accused were transferred from the said marine vessel to another ship by name Al-Hussaini. The haversacks were also transferred to Al-Hussaini. Wanted A14-Hakim Saab and his three associates stayed back in the said big marine vessel. Seven persons including wanted A16- Mursheed, wanted A17-Aakib and wanted A19-Usman were present on board of Al-Hussaini. The haversacks were handed over to A1-Kasab and the nine deceased accused. They were also given life saving jackets, blankets and other necessary articles. With these equipments, arms, ammunition and articles required for the journey A1-Kasab and the nine deceased accused started their journey in Al-Hussaini along with the said seven persons including three wanted accused named above.
27. On 23/11/2008 at about 12.00 noon a fishing vessel viz. M.V. Kuber was hijacked by them in the high sea. Four out of five fishermen of the hijacked vessel were brought to vessel Al-Hussaini. The articles which were loaded on Al-Husaini were transferred to fishing vessel M.V. Kuber. The fifth fisherman, who was navigator of M.V. Kuber was taken hostage by A1-Kasab and the nine deceased accused. The diesel already loaded on Al- Husaini was also transferred to M.V. Kuber.
28. After taking the navigator of M.V. Kuber as hostage on board, A1-Kasab and the nine deceased accused started their journey towards Mumbai seashore. With the help of GPS and the navigator Amarchand Solanki, A1- Kasab and the nine deceased accused successfully navigated the boat. During their journey, they were communicating with wanted A3-Abu Hamza on a satellite telephone. They tied threads to their respective wrists to hide their identity as Pakistani nationals. The vessel M.V. Kuber reached Indian territorial waters at about 4.00 p.m. on 26/11/2008.
29. Deceased A1-Abu Ismail after reaching Mumbai sea water, received certain instructions on satellite phone. A1-Kasab told deceased A1-Abu Ismail that it is advisable to kill the said navigator Amarchand Solanki. A1-Kasab asked deceased A9-Shoaib @ Abu Soheb and deceased A3-Nasir @Abu Umar to catch hold his leg. Thereafter, A1-Kasab caught hold of the hair of navigator Amarchand Solanki and pulled his neck. A1-Kasab slit his neck in the engine room of M.V. Kuber. Thereafter, deceased A1-Abu Ismail, deceased A3-Nasir @ Abu Umar, deceased A7- Fahad Ullah and deceased A8-Javed @Abu Ali pumped air into the inflatable boat and the said boat, after reassembling, was downed in the sea. A1-Kasab and the nine deceased accused changed their clothes. They put on life saving jackets as well as waterproof trousers. Their earlier clothes were left in M.V. Kuber. The arms and ammunition were also transferred to the inflatable boat. At this point of time, they saw one vessel approaching from the opposite direction. They thought it was a naval vessel and, therefore, they hurriedly jumped into the inflatable boat speedily. Therefore, they could not remove the sea valve of M.V. Kuber as decided earlier. With the use of GPS, they reached seashore of Mumbai at Badhwar Park, Cuffe Parade. A1-Kasab and deceased A1-Abu Ismail got out of the inflatable boat. They collected their haversacks and the bags containing RDX bombs. The time was around 9.00 p.m. Some of the fishermen staying in the fishermen colony at Badhwar Park inquired from A1- Kasab and others regarding their identity and the purpose of their being in the said locality. A1-Kasab told them that they were students. A1-Kasab sharply reacted to the inquiry made by the fishermen.
30. From Badhwar Park, the five pairs proceeded to their targets. A1-Kasab and deceased A1- Abu Ismail hired a taxi to go to CST. During the course of their journey from Badhwar Park to CST, A1-Kasab installed a timer on a RDX bomb and placed it below the driver's seat. Within 15 to 20 minutes, they reached CST from Badhwar Park. They tried to contact wanted A3-Abu Hamza but could not succeed. Both of them were in the main line waiting hall at the CST. Deceased A1-Abu Ismail went to toilet situated near the waiting hall and installed timer on the bomb which was in his custody and left the same in the luggage of passengers lying in the waiting hall. Thereafter A1-Kasab and deceased A1-Abu Ismail went on a killing spree with their AK-47 rifles. Deceased A1-Abu Ismail took out hand grenade from his bag and threw it in the direction of passengers in the waiting hall. Immediately thereafter, another hand grenade was thrown by him. Thereafter A1-Kasab and deceased A1- Abu Ismail took out their AK-47 rifles and started firing indiscriminately at the passengers. The police officers who tried to retaliate the firing, were also shot at. Some of the policemen were killed during the firing. After killing large number of passengers, A1-Kasab and deceased A1- Abu Ismail proceeded towards the waiting hall of local journey trains. While crossing the passage between the main waiting hall of long journey trains and waiting hall of local journey trains, they killed one of the police officers on duty. They had also killed one book stall owner. After reaching the local railway waiting hall, A1-Kasab and deceased A1-Abu Ismail fired on the policemen belonging to Government Railway Police (for short, "GRP"). Some of the Railway Protection Force Jawans (for short, "RPF jawans") and GRP attempted to capture or kill A1-Kasab and deceased A1- Abu Ismail. The policemen had used carbines and pistols but unfortunately neither A1-Kasab nor his associate deceased A1-Abu Ismail could be caught or injured during the exchange of fire. A1-Kasab and deceased A1-Abu Ismail also fired at the announcer who was sitting in the public announcement room on the mezzanine floor of the local railway waiting hall. During this period two photographers of Times of India Group who were in their office which is situated across the road opposite CST, had entered CST and taken photographs of A1-Kasab and deceased A1-Abu Ismail. In connection with this incident, C.R. No.155 of 2008 was registered at V.T. Railway Police Station on the complaint of API Bharat Bhosale. Investigation of this crime was later on handed over to DCB, CID. On transfer to DCB, CID, a fresh C.R. No.213 of 2008 came to be registered. Further investigation was done by PI Gangawane. In the CST incident, 53 persons were killed and 110 persons were injured.
31. After killing many persons at the CST, A1-Kasab and deceased A1-Abu Ismail went out of CST via foot over bridge and landed in a bylane known as Badruddin Tayyabji Marg (for short, "B.T. Marg/B.T. Road"). PW-102 Vernekar, photographer of Times of India Group, who had earlier taken photographs at CST, noticing that the accused were going out of CST via foot over bridge, immediately went to the Times of India building which is at the corner of B.T. Marg. He knew that he could take photographs of A1-Kasab and his associate from the second floor of Times of India building when they were passing over the foot over bridge. He, therefore, went to the second floor of the Times of India building. He took at least two photographs of A1-Kasab holding AK-47 rifle in his hand and violently moving forward on foot over bridge.
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EVIDENCE OF THE PROSECUTION WITNESSES AND REASONING:
811. We shall first go to the evidence of PW-160 Naruddin Shaikh, who is a resident of Goregaon. According to him, A2-Ansari is a resident of Motilal Nagar, Goregaon (West), Mumbai and he is known to him since childhood. According to this witness, one Bharat Thakur, who hails from Nepal and who is a rickshaw driver is also known to him. Bharat Thakur comes from Purana Dahineshwar, Pashupatinath Mandir, Kathmandu, Nepal. This witness has stated that in the month of January, 2008, he had gone along with Bharat Thakur to Kathmandu. According to him, Dahineshwar is at a distance of 30 kilometers from Kathmandu. He stayed with Bharat Thakur for about ten to twelve days at Dahineshwar. After about twelve days, Bharat Thakur fell sick. He therefore, told Bharat Thakur that he would visit Kathmandu alone. He stayed in a small guest house, situated at New Road, Kathmandu. He stated that he did not remember the exact date of his departure from Mumbai and arrival in Nepal. According to him, while he was visiting places at Kathmandu, he suddenly met A2-Ansari at New Road. Both of them thereafter visited a hotel and had a cup of tea. On inquiry being made by A2-Ansari, he told him that he had come to Kathmandu on a pleasure trip. A2-Ansari asked him to visit his guest house so that they could chat. He, therefore, went along with A2-Ansari to his room in a guest house situated at New Road. According to this witness, at about 8.30 p.m. A3-Shaikh visited the room of A2-Ansari. A3-Shaikh was introduced to him by A2-Ansari. After sometime, A3-Shaikh inquired with A2-Ansari whether he had completed the work assigned to him by Lakhvi. A2-Ansari took out some papers from his bag and handed over the same to A3-Shaikh. According to him, while the papers were being handed over to A3-Shaikh, they fell down and he could see that they were maps. He, therefore, asked A2-Ansari whether he had started business of preparing maps. A2-Ansari did not respond. However, A3-Shaikh told him that his friends from Pakistan wanted to visit Mumbai and, therefore, they wanted some maps. According to him, he told A3-Shaikh that the maps were freely available and why it was necessary to prepare the maps. A2-Ansari said that the information in the maps available in the market is not correct and, therefore, the maps had been prepared by him. He then had dinner with A2-Ansari and A3-Shaikh in the hotel room of A2-Ansari and left for his hotel at about 11.00 p.m.
812. According to this witness, on the next day, A3-Shaikh was seen by him on New Road. He inquired about A2- Ansari. A3-Shaikh told him that A2-Ansari had gone for some work. This witness claims that he stayed at Kathmandu for three days and left for Dahineshwar. He returned to Mumbai on 2/2/2008. He has stated that he could identify the maps which, he had seen in the hotel room of A2-Ansari. He has stated that he had seen maps on 8 to 10 pages. They were on school note book papers. When map (Art.101) was shown to him, he stated that the said map looked like the maps seen by him in the hotel room of A2-Ansari when they were being handed over to A3-Shaikh.
813. This witness has been extensively cross-examined. He has stated in the cross-examination that his wife is working as a home-guard. He has admitted that two criminal cases were pending against his brother - Shafi. He has denied that his brother Lala was arrested in a rape case. He has stated that his brother Lala was never arrested by Goregaon police. He has denied all suggestions about his alleged involvement in robbery of ornaments from possession of owner of K.K. Jewellers, Kandivali, or that he was wanted by the police in any case. He has stated that he is a driver by profession and that he did not have any regular employment. He has admitted that he works on daily wages and the last job, which he had undertaken was in between 12/8/2009 and 15/8/2009. He has stated that he was not employed as a regular driver anywhere. He has denied that he had been visiting office of the Crime Branch since February, 2009 regularly and that he was being paid Rs. 6,000/- per month by Crime Branch. According to him, he did not know that A2-Ansari had been arrested by U.P. Police about one year ago from the date of incident on 26/11/2008. He has stated that he knew that A2-Ansari had been arrested in this case before his statement was recorded by the police. He has stated that he read about it in a newspaper. He clarified that he does not read newspaper and he had been told about it by his friends who read newspapers.
814. He has further stated that he did not have any railway ticket or guest house receipt to establish that he visited Nepal. He has stated that the police did not ask him the date of his visit to Nepal, by which train he had travelled, the source of his expenditure or the name of guest house in which he had stayed. He has stated that he did not remember the name of the guest house where he had stayed. He has stated that he had crossed from Sonavali border while going to Nepal and had exchanged currency there. He has admitted that a record is kept at Sonavali border with regard to entry of any person from the border but, he did not remember the entry number and the date of his visit. He did not have the entry slip. He has admitted that he had not given the name of the guest house in which A2-Ansari had stayed in Nepal, to the police. He has admitted that he had not stated to the police that A3-Shaikh had told him that his friends wanted to visit Mumbai. According to him, he had stated that A3- Shaikh had told him that his friends from Pakistan wanted to visit India. He has stated that he did not tell the police that A2-Ansari had said that the maps were prepared by him. According to him, he had stated before the police that there were 8 to 10 papers of school notebook and if those papers are shown to him, he would be able to identify them. He has stated that he cannot say why this fact is not stated in his statement. He has admitted that Bharat Thakur stays at Laxmi Nagar, Goregaon and his family members were staying at his native place in Nepal, but Bharat Thakur does not have his own residence in Nepal. He has stated that he was approached by the Crime Branch on 5/12/2008 for recording of his statement and his statement was recorded on that day. He has stated that he was in Kathmandu for three days. However, he did not remember the dates. He has denied that he was an informer of Crime Branch and that A3- Shaikh was shown to him for the first time, when A3- Shaikh was in custody of Crime Branch. He has denied the suggestion that officers of Crime Branch told him that A3-Shaikh would be sitting at serial No.3 in a box and, therefore, he could identify A3-Shaikh.
815. PW-48 is PI Prashant Marde of DCB, CID. He has recorded the statement of PW-160 Naruddin Shaikh on 5/12/2008. He has stated that on 8/12/2008, he had applied for transfer warrants for A2-Ansari and A3-Shaikh, who were lodged in jail in connection with some other crime registered in U.P. A2-Ansari and A3-Shaikh were handed over to DCB, CID by the concerned courts on 17/12/2008. They were produced before the Magistrate on 18/12/2008 and were remanded to police custody till 31/12/2008. According to him, he had recorded the statement of Bharat Thakur on 22/12/2008. He has further stated that there were two sealed packets in the property handed over to him by D.B. Marg police. One of the packets contained a sketch map recovered from the dead body of deceased A1-Abu Ismail. Since it was required for further investigation, after obtaining permission from learned Magistrate, he opened the sealed packet by following necessary procedure. The English writing on the sketch map was given identification mark from Q-1 to Q-12 by means of red ball pen. The sketch map, after giving identification marks to the writing thereon, was scanned and copy thereof was prepared on the scanner in the office of DCB, CID. The original sketch map was again sealed in the presence of panchas. He has identified his signature as well as the signatures of panchas on the panchnama (Ex-155) drawn in respect of this exercise. When the sketch map (Art.101) was shown to him, he identified the same. He has stated that the identification marks in Marathi i.e. D;w&1 rs D;w&12 are in his handwriting. He has stated that the specimen handwriting of A2-Ansari was taken on three occasions in the presence of panchas. The specimen handwriting of A2-Ansari and the questioned document (Art.101) were sent to the Government Document Examiner. The opinion of the Document Examiner was received on 26/3/2009. The forwarding letter and the opinion of the Document Examiner are at Art.294 (Colly.). In the crossexamination, he has denied the suggestion that the sketch map (Art.101) has been fabricated after the arrest of A2-Ansari by Mumbai police. He has denied that the panchnama (Ex.155) is also a fabricated document. He has denied the suggestion that he took the specimen handwriting of A2-Ansari on the pretext that the Magistrate had ordered to take specimen handwriting.
816. As we have already stated, it is the case of the prosecution that in order to give logistic support to the coconspirators, A2-Ansari was trying to secure accommodation in South Mumbai and he had even taken admission in a computer institute viz. Softpro Computer Education. We shall now come to that evidence.
817. PW-35 is Jeevan Gulabkar. He runs a PCO under the name and style of 'Kushal Communication Center'. He stays in Fishermen colony, Badhwar Park. According to him, in 2007, one person had visited his PCO in the evening to inquire as to whether any room is available on rental basis in the colony. He told him that he was not an Estate Agent and, therefore, he could not help him. Upon that, the person insisted that he should help him to get a room on rental basis as, he knows many persons in the locality due to the nature of his business. That person gave him Rs. 5,000/-, which he could use to search for a room for him. Thereafter, that person was frequently visiting his PCO. Since, he was tired of his frequent visits and persistent inquiry, he refused to help him and returned him Rs. 4,500/-. He identified A2-Ansari in the court as the same person, who had visited the PCO and had given him Rs. 5,000/-. According to him, A2-Ansari was reluctant to accept Rs. 4,500/- back. He told him that he comes from Delhi and that his name was Sahil Pawaskar. Ultimately, A2-Ansari accepted Rs. 4,500/- from him. According to him, in the identification parade held at Arthur Road Prison on 18/2/2009, he identified A2-Ansari as the same person who had come to him for finding a room in Badhwar Park locality. In the cross-examination, he has denied the suggestion that A2-Ansari never came to him and gave him Rs. 5,000/-.
818. PW-38 is Rajendra Bhosale. He is a resident of Batata Chawl situate at Pathe Bapurao Marg, Mumbai. According to him, PW-40 Ms. Shantabai Bhosale is also staying in the same chawl in Room No.14. According to him, her son Mahadeo died in the year 2007. He has stated that PW-40 Shantabai had requested him to search for a tenant for her room as she was in need of money to repay the loan. He has stated that one Kumar Shivaji who was working as Estate Agent had brought one person to him who wanted accommodation on rental basis. He took the said person to PW-40 Ms. Shantabai. PW-40 Ms. Shantabai took a deposit of Rs. 60,000/- and monthly rent of Rs. 3,000/- for the room. The said person agreed to the terms and conditions of deposit and rent. An agreement was prepared on next day. According to him, it was signed by the said person and PW-40 Ms. Shantabai put her thumb impression thereon. According to him, though PW-40 Ms. Shantabai had quoted Rs. 50,000/- as deposit, she took Rs. 60,000/- as deposit at the time of agreement. The deposit was paid by the said person who disclosed his name as 'Sahil Pawaskar'. This witness identified A2-Ansari in the court as the said Sahil Pawaskar. He has further stated that A2-Ansari stayed in the said room for about one month and left the room suddenly without demanding back the deposit amount.
819. PW-40 is Ms. Shanta Bhosale, who rented her room to A2-Ansari. She has stated that she knew one Sahil Pawaskar, who was staying in her room at Batata Chawl as a tenant for about one month. According to her, he had given her deposit of Rs. 50,000/- and had agreed to pay another sum of Rs. 10,000/- after returning from his village. The monthly rent was fixed at Rs. 3,000/-. She has stated that Sahil Pawaskar was staying in the main room. The agreement was signed for eleven months. Sahil Pawaskar was introduced to her by her nephew PW-37 Rajendra Bhosale and one Estate Agent. She had put her thumb impression on the agreement. According to her, Sahil Pawaskar had signed the agreement. She has stated that the original agreement was taken from her by the police. She identified A2-Ansari in the court as the same Sahil Pawaskar. She stated that A2-Ansari had left the room after staying there for about a month. However, he did not return. When the agreement was shown to her, she stated that the thumb impressions on the said agreement were her thumb impressions. The thumb impressions are at Ex-180 (Colly.). There is no effective cross-examination of this witness.
820. We shall now turn to the witnesses who are examined to prove that A2-Ansari took admission in a computer institute at Fort Mumbai. PW-36 is Vivek Saxena. He was working as Manager since February, 2006 at Softpro Computer Education, situated at 2nd floor, Engineer Premises, 93, Mumbai Samachar Marg, Fort, Mumbai. According to him, there are many Diploma courses available in his institute. They are Diploma Information Technology (DIT), Desktop Publishing (DTP), Hardware (HW) and Diploma in Networking. According to him, one Sahil Pawaskar had taken admission in his institute. He identified A2-Ansari as the same Sahil Pawaskar. He has stated that A2-Ansari had visited his institute on 10/12/2007 and had taken admission for the abovestated four courses. According to this witness, the classes commenced on 12/12/2007. A2-Ansari had followed all the formalities while taking admission. When Inquiry form (Ex-168) was shown to him, he stated that it bears the signature of A2-Ansari. He stated that A2- Ansari had signed it in his presence. He acknowledged his own signature also. He was shown the admission / application form (Ex-169). According to him, this form was filled in by A2-Ansari and it bears his signature. He acknowledged his own signature thereon. He stated that the photograph on the said application was of A2-Ansari. The said application is at Ex-169. When he was shown copy of receipt (Ex-170), he stated that it was prepared by him and signed by A2-Ansari. He stated that the receipt is in his handwriting and is signed by him. According to him, the original receipt was given to A2-Ansari. He has been cross-examined at length. In his cross-examination, he has denied that A2-Ansari had never been a student of Softpro Computer Education. He has denied that A2- Ansari had not filled in any application form in his presence. He has denied that he was deposing at the instance of the police.
821. PW-47 is PI Sripad Kale. According to him, the specimen signatures and handwritings of A2-Ansari were taken on 10/2/2009, 11/2/2009 and 12/2/2009 in presence of two panchas. The documents A-1 to A-27 and B-1 to B-27 are the specimen handwritings and specimen signatures of A2-Ansari. According to him, each and every page of the specimen handwritings and signatures bears his signatures and the signatures of panchas. The specimen handwriting and signatures are at Ex-211 (Colly.). According to him, PW-265 Sharad Vichare conducted the identification parade in Arthur Road Prison on 18/2/2009 in which PW-35 Jeevan Gulabkar and PW-38 Rajendra Bhosale participated. On 24/2/2009, specimen handwritings and signatures of A2-Ansari and the questioned documents seized from PW-36 Vivek Saxena were sent to Addl. Chief State Examiner of Documents. The letter addressed to the Addl. C.P. along with the questionnaire are at Ex-213. He has not been crossexamined on this aspect.
822. PW-146 is Jayant Aher, who was working as State Examiner of Documents. According to him, on 10/2/2009, he had received a letter from Addl. C.P. along with a letter of Sr. PI of DCB CID Prashant Marde. He had also received a list of documents and a questionnaire and one sealed packet. He produced both the letters, which are at Ex-571 (Colly.). The sealed envelope contained documents (Art. 101 and Art.102). When the said documents were shown to him, he has stated that Art.101 was the questioned document and Art.102 were the specimen handwritings. His findings are at Ex-572 and the opinion is at Ex-573.
823. According to him, on 25/2/2009, he had received a list of documents, questionnaire and one sealed packet. The sealed packet contained two questioned documents i.e. Ex-168 and Ex-169. It may be noted here that they are the inquiry form and the application form respectively of Softpro Computer Education, which were produced by PW-36 Vivek Saxena. According to him, the questioned writings were found to be marked by the police as Q-1 to Q-2 in Ex-169 and Q-3 and Q-4 in Ex-168. The markings of police were in red ink. He had given similar markings to the questioned writings with green ink pen. According to him, he had also received specimen writings marked as A-1 to A-27 and B-1 to B-27. They were marked by him as S-1 to S-54 with green ink pen. He produced his findings which are at Ex-574. On the basis of the said finding, he came to the conclusion that the writings, figures and signatures in English marked Q-1 to Q-4 were written by the writer of S-1 to S-54. In the cross-examination, he has stated that the person who had written Q-1 to Q-12 in Art. 101 was not very good at English language. He has denied the suggestion that the writings i.e. Q-1 to Q-12 in Art.101 showed clear signs of duress.
824. PW-265 is Sharad Vichare, the SEO who had conducted the identification parade. He had conducted identification parade on 18/2/2009. According to him, the identifying witnesses were PW-38 Rajendra Bhosale and PW-35 Gulabkar and they identified A2-Ansari in the identification parade.
825. PW-14 is Shivaji Shivekar. He is pancha to panchnama (Ex-99) under which map (Art.101) was recovered from the right side pocket of cargo trouser (Art. 3) of deceased A1-Abu Ismail. He is also a pancha to inquest panchnama (Ex-97) of deceased A1-Abu Ismail. In the cross-examination, he has admitted that Ex-97 and Ex-99 were prepared one after another. He has admitted that two different pens were used for writing Ex-97 and Ex-99 and both the panchnamas (Ex-97 and Ex-99) were written by the same constable. He has denied that Ex-97 was prepared on 27/11/2008 and Ex-99 was prepared after about 2 to 3 weeks of the incident. He has denied that the police had not seized sketch map (Art.101) in his presence.
826. PW-27 is API Subhash Warang. He has drawn panchnamas (Ex-97 and Ex-99). He has identified Art.3 when shown to him in the court as the same cargo trouser, which was removed from the dead body of deceased A1-Abu Ismail. He has stated that the inquest panchnama of dead body of deceased A1-Abu Ismail was drawn by him in the trauma ward in the presence of two panchas. He has stated that Dr. Mohite was present at that time in the trauma ward. According to him, there were in all, seven injuries on the dead body. There was one bullet injury on right side of the right eye. There was one injury on left rear side of the head. There were two injuries 5 cm below the right shoulder on front portion. There was one injury on right index finger. There were two injuries below the left armpit. There was one injury on left thigh 5 cm above knee joint. There were abrasions on the right knee. There were blood stains on rear side of the underwear of deceased A1-Abu Ismail. It was seized. He has acknowledged his signature on the panchnama (Ex-97). He has described the cargo trouser (Art.3) of deceased A1-Abu Ismail as under:

1) One cargo trouser of dark blue colour having label of 'RAPIDFIRE Landon'. There were blood stains at some places on the said trouser. Blood stains were on left portion of the trouser. There was small hole just above the knee portion of the trouser.

827. He has stated that there were six pockets to the cargo trouser. Two were on the rear side and two each were on left and right side. According to him, the sketch map was recovered from the right side pocket of the cargo trouser. It was just above the knee portion of the trouser. The sketch map shows various locations of Mumbai city. When Art.101 was shown to him, he identified the same as the same sketch map recovered from Art.3. He has stated that the said map was seized during the course of panchnama (Ex-99). In the crossexamination, he has stated that there was only underwear on the dead body of deceased A1-Abu Ismail. The other clothes were removed before commencement of inquest panchnama. He has accepted that in inquest panchnama, it is not stated as to where the clothes of deceased A1- Abu Ismail were kept or stored during the course of inquest panchnama. He has accepted that it is not stated in the panchanama that the underwear was wrapped in a polythene bag and a label having his and panchas signatures was affixed on the polythene bag. He has admitted that in the panchnama, it is not stated as to whether the blood stains on the clothes of deceased A1- Abu Ismail were wet or dried. According to him, it took him around two to three minutes to complete examination of clothes of deceased A1-Abu Ismail. He has denied that there were wet blood stains on clothes of deceased A1- Abu Ismail. He has denied the suggestion that his hands were stained with blood during handling of clothes of deceased A1-Abu Ismail. He has stated that the statement made in the panchnama that the photographs of all the seized articles were taken from different angles is not correct. This witness volunteered and stated that it was written due to inadvertence on his part. He has further stated that the photographs of clothes of A1-Kasab and identity card were taken during the course of panchnama (Ex-99). No other photographs were taken during the course of panchnama (Ex-99). When the cargo trouser (Art.3) was shown to him, he stated that there appear to be blood stains on the corners of the pocket. He admitted that it is not stated in the panchnama as to whether the sketch map was found in upper right pocket or lower right pocket. He has denied the suggestion that there were more stains on right side of the trouser as compared to left side. He has stated that the sketch map (Art.101) was found in the trouser pocket on which there was label of 'RAPIDFIRE'. He has admitted that there were stains on left corner of the said pocket. He has denied that there were stains on other portion of the said pocket. He has stated that he did not find it necessary to seize the clothes during the course of inquest itself. According to him, the sealing of clothes of deceased A1-Abu Ismail was completed around 4.00 a.m. on 27/11/2008. He has stated that the clothes of deceased A1-Abu Ismail were not seized under the panchnama (Ex-97) because they were wet. The clothes were kept on a stretcher below the ceiling fan for drying. According to him, the blood stains on the underwear had dried by the time, the inquest panchnama was drawn. He has stated that there was no heavy blood on the stretcher where the dead body of deceased A1-Abu Ismail was kept. He has denied that the clothes had not dried till the time of panchnama. He has denied the suggestion that the clothes had not dried till 5.00 a.m. on 27/11/2008.
828. PW-213 Ashok Kumar Raghav is Addl. S.P. (Intelligence) of U.P. Police. At the relevant time, he was working as Addl. S.P., Special Task Force (STF) He was attached to Meerut Office of STF. He has stated that on 1/1/2008, there was a terror strike on CRPF camp. Seven CRPF jawans and one civilian were killed during the said attack. An offence was registered at Civil Lines Police Station, Rampur, vide Crime No.8-08. Since, he was attached to STF, he was to collect intelligence and to work out the case registered at Civil Lines Police Station, vide Crime No.8-08. During the course of investigation of the said crime, A2-Ansari was arrested near Rampur Bus Stand at 00.10 hours on 10/2/2008 along with two other persons. According to him, none of the persons from the locality had come forward to act as pancha. According to him, personal search of A2-Ansari and his associates was taken on the spot. During the search, a Pakistani passport bearing No.BM 6809341 issued in the name of Hassan Hammad, having photograph of A2-Ansari as its holder, one identity card issued by Hukumate Pakistan which had identity card number, nine maps on ruled notebook papers and one map on a plain white paper, two railway tickets - one from New Delhi to Mumbai dated 12/2/2008 and other one from Bandra Terminus to Muzzafarpur dated 10/1/2008 were recovered. According to him, all the articles were seized and sealed and panchnama was prepared on the spot. The panchnama is at Ex-197. He identified A2-Ansari as the same person who was arrested by him on 10/2/2008 at Rampur. When the seized articles, inter alia, the passport, identity card, maps, two notebook papers containing information relating to computer, etc. were shown to him in the court, he identified them as the same articles seized by him from A2-Ansari under panchnama (Ex-197). In his cross examination, he has denied that the documents seized from A2-Ansari were never sealed in any envelop. He has denied the suggestion that the documents have been fabricated.
829. PW-254 is Manpreet Vohra. He was working as Joint Secretary of Ministry of External Affairs. He was working as Deputy High Commissioner in Indian High Commission at Islamabad, Pakistan from February, 2007 to August, 2009. He has stated that the Government of Pakistan and the Government of India have been exchanging information about terror attack on Mumbai dated 26/11/2008. He has produced in the court office copy of the Dossier of A2-Ansari which was given to Pakistan Government by the Indian Government. The relevant pages of Dossier are at Ex-1063 (Colly.). According to him, on 11/7/2009, he had visited the office of Director General (South Asia) in Foreign Ministry of Government of Pakistan. The Director General had handed over the Dossier to him which included information about passport of Fahim Arshad Ansari @ Hammad Hassan issued by the Government of Pakistan. According to him, he was told that the passport bearing No.BM 6809341 was issued to Fahim Arshad Ansari (A2-Ansari) in the name of Hammad Hassan on the basis of fake identity and particulars. He produced the original Dossier given to him by the Director General (South Asia). He has produced the original Dossier. He has also produced the xerox copy of the cover page and paragraph No.31 of the Dossier. The original of the Dossier was returned to the witness. The xerox copy of note and xerox copies of cover page and paragraph No.31 of the Dossier are taken on record. They are at Ex-1064 (Colly.). There is no effective crossexamination of this witness.
830. PW-261 is Krantikumar Varma. He was working as Document Examiner at Forensic Science Laboratory, Lucknow. According to him, Dy. Inspector General of Police, Anti Terrorist Squad had sent him specimen handwritings and questioned documents for his opinion. There were twelve questioned documents which were required to be compared with the specimen documents. They are at Art.803 (Colly.) and Art.804 (Colly). They were marked as Q-1 to Q-16. The specimen handwritings received by him from the Dy. I.G. A.T.S. were marked as S-1 to S-32. They are at Art.990 (Colly.). According to him, the photographer of the laboratory had taken photographs of all the documents with a digital camera and a CD was prepared thereof. Thereafter, he started examination of original documents. He had examined the questioned documents and specimen documents and come to the conclusion that the author of Art.990 (Colly.) i.e. S-1 to S-32 was also the author of Art.803 (Colly.) and Art.804 (Colly.) i.e. Q-1 to Q-16. His opinion is at Ex-1085 and his reasons are at Ex-1086. There is no effective cross-examination of this witness.
831. PW-23 is Dr. Shailesh Mohite, who had done the postmortem of deceased A1-Abu Ismail. He has given the nature of injuries suffered by deceased A1-Abu Ismail. We have already noted the injuries of deceased A1-Abu Ismail. But, in the context of the present appeal, it is necessary to quote them again. They are as under:

"1. Circular lacerated wound of size 06x0.6 cm. inverted margins, over left occipital region of scalp, 8 cm above mastoid process. Circular abrasion collar, brownish black in colour seen around the central aperture; 0.1 cm in thickness. No evidence of burning, blackening, tattooing and singeing of hairs. (entry wound) . The wound was directed to the right, medially and forward.

2. Whole right eyeball lacerated with lacerations of upper and lower eyelids at the margins, 1 cm. away from the lateral canthus. The eyeball was collapsed, sunken and showed e/o hemorrhage in the eyeball (Exit wound).

3. Oval lacerated wound of size 2.08 cm. margins were inverted; seen over anteromedial aspect of right arm, middle 1/3rd, 15 cm above elbow joint. Elliptical abrasion collar, brownish black in colour seen around the central aperture; 01-0.2 cm in thickness. No evidence of burning, blackening, tattooing and singeing of hairs (entry wound). The wound was directed upwards and laterally. There was e/o bluish contusion seen around it.

4. Oval lacerated wound of size 1.6 X 0.8 cm; seen over anterolateral aspect of right arm, upper 1/3rd, 5 cm below acromion process. Elliptical abrasion collar, brownish black in colour seen around the central aperture; 0.1-0.2 cm in thickness. No evidence of burning, blackening and tattooing (Exit wound) On opening the track injury No.3 and 4 were communicating. Evidence of hemorrhages seen in the track. Track length 12 cm. Injury No.3 and 4 were surrounded by contusion in an area 12 X 5 cm bluish in colour. There was no fracture of underlying bone.

5. Oval lacerated wound of size 1 X 0.6 cm. inverted margins; seen over left lateral aspect of chest, 10 cm. below axilla in posterior axillary line. Abrasion collar seen around it, brownish black in colour, 0.1-0.2 cm. in thickness. No evidence of burning, blackening tattooing and singeing of hairs (Entry wound )

6. Oval lacerated wound of size 1 X 0.6 cm; seen over left lateral aspect of chest, 9 cm below axilla in midaxillary line No evidence of burning, blackening, tattooing and singeing of hairs (Exit wound). On opening the track injury No. 5 and 6 were communicating. Evidence of hemorrhages seen in the track. Track length 6 cm. Injury No.5 & 6 were surrounded by contusion of size 10 X 4 cm bluish in colour. There was no fracture of underlying ribs.

7. Abraded contusion of size 7 X2 cm. seen over medial aspect of left arm, middle 1/3rd , 10 cm below anterior axillary line, bluish in colour.

8. Oval lacerated wound of size 0.6 X 0.6 cm, inverted margins; seen over palmer aspect of right index finger between proximal and middle phalanges (Proximal IP joint.) Elliptical abrasion collar, brownish black in colour seen around the central aperture; 0.1-0.2 cm. in thickness. No evidence of burning , blackening tattooing and singeing of hairs (entry wound)

9. Irregular lacerated wound of size 1.2 X 0.6 cm, the margins were everted; seen over dorsal aspect of right index finger between proximal and middle phalanges (proximal IP joint). Injuries No.7 & 8 were communicating. The fractured underlying bones were palpated and seen, the fractured bone pieces were everted (exit wound).

10. Circular lacerated wound of size 0.6 X 0.6 cm. inverted margins, seen over lower 1/3 rd of left thigh anterolaterally , 5 cm above patella. Elliptical abrasion collar seen at upper border, brownish black in colour seen around the central aperture. No evidence of burning, blackening, tattooing and singeing of hairs (entry wound) .On opening the track, the bullet was recovered from left knee joint medial aspect; sub patellar region.

11. Abrasion of size 1X 0.8 cm. seen on left knee joint medial aspect, subpatellar region, brownish black in colour. The bullet was palpated beneath this injury."

832. In the cross-examination, he has stated that he was in the trauma ward along with 8 to 10 police officers. The photographs of deceased A1-Abu Ismail were taken during the course of postmortem examination. However, the photographs were not taken at the time of inquest panchnama. He has stated that he had not seen any photographer in trauma ward. He has stated that considering the number and nature of injuries, it can be said that there might be loss of large amount of blood. He has further stated that none of the wounds mentioned as external injuries would lead to profuse bleeding. He has stated that the injuries mentioned at serial Nos.2 and 4 as external injuries would lead to cascading bleeding. According to him, the total blood loss due to the said injuries could be around 500 ml. to 1000 ml. and the white bed sheet, in which the body was wrapped after inquest panchnama, was found soaked with blood at places. He has denied the suggestion that there was profuse bleeding from head to toe when he had seen the dead body in trauma ward. He has stated that there were blood stains only on left thigh. He has denied the suggestion that there were blood stains on both the thighs. He has stated that the stretcher was such that blood oozing from injuries would collect on the stretcher. He has further stated that the clothes were not immediately sealed after removal from the dead body.
GIST OF THE EXAMINATION OF A2-ANSARI AND A3- SHAIKH UNDER SECTION 313 OF THE CODE.
833. When A2-Ansari was asked while he was being examined under Section 313 of the Code, whether when he was arrested on 10/2/2008 by Rampur Police, Pakistani passport issued in the name of Hassan Hammad and identity card issued by Hukumate Pakistan having an identity card number, two railway tickets, one from New Delhi to Mumbai dated 12/2/2008 and the other from Bandra Terminus to Muzaffarpur dated 10/1/2008 and ten maps were recovered from him, he stated that it is false. When he was asked that PW-213 Ashok Kumar Raghav of U.P. Police has identified the passport (Art.801), the identity card (Art.802) and the maps [Art.803 (Colly.)], he stated that it is false. When he was asked that PW-261 Kranti Kumar Verma, Handwriting Expert has after examination of specimen handwriting and the maps [Art. 803 (Colly.)] had come to the conclusion that the specimen handwriting and the handwriting on Art.803 (Colly.) were of the same person, he stated that it is false. When he was asked whether he had to say anything more about the case, he stated that he was apprehended at Lucknow on 1/2/2008 by the Special Task Force of U.P. Police, he was then brought to Mumbai and interrogated in Mumbai and then he was sent back to U.P. He stated that he is not concerned with the incident of 26/11/2008. According to him, he was beaten by the officers of the Crime Branch and was forced to prepare a sketch map (Art.101) after his arrest.
834. Similarly, when A2-Ansari was asked whether he was in search of a residential accommodation at Colaba near Badhwar Park somewhere in the year 2007, whether he acquired a room belonging to PW-40 Shantabai Bhosale at Patthe Bapurao Marg, whether he had stayed in the said room for about one month, whether as stated by PW-36 Vivek Saxena, he had taken admission in the Softpro Computer Education situated at Fort, Mumbai by impersonating himself as Sahil Pawaskar, whether he had signed the inquiry form (Ex-168) and application form (Ex-169) in the presence of PW-36 Vivek Saxena and whether the signatures on Ex-168 and Ex-169 are his, he stated that all this is false. When he was asked whether his specimen signatures were taken and they were examined by PW-146 Jayant Aher, he stated that his specimen signatures were never taken. When he was asked whether the sketch map (Art.101) showing various locations of Mumbai city was recovered from the clothes of deceased A1-Abu Ismail on the intervening night of 26/11/2008 and 27/11/2008, he stated that it is false. When he was asked whether the said map and specimen signatures were sent to the Handwriting Expert for his opinion, he stated that it is false. When he was asked whether PW-146 Jayant Aher, the Handwriting Expert opined that the handwriting on the sketch map (Art.101) and his specimen handwriting were written by one and the same person, he stated that it is false.
835. In his statement recorded under Section 313 of the Code, A3-Shaikh has also denied all the allegations made by the prosecution against him.
836. The evidence led by the prosecution so far as involvement of A2-Ansari and A3-Shaikh is concerned, did not find favour with learned Sessions Judge and he acquitted A2-Ansari and A3-Shaikh.
THE GUIDING PRINCIPLES IN RESPECT OF APPEAL AGAINST ACQUITTAL AND REASONINGS.
837. We must first consider what is the scope and extent of powers of the High Court under Section 378 of the Code. The law in this regard is well settled by a catena of judgments of the Supreme Court. A Division Bench of this High Court in State of Maharashtra v. Haribhau Krishnaji 2003 (4) Mh.L.J. 1060 considered two decisions of the Privy Council and relevant judgments of the Supreme Court from 1952 to 1996 and deduced the following principles:

"22. In our opinion, the scope and extent of powers of the High Court under section 379 of the 1978 Code is well defined and has been disclosed by the above referred judgment of the Supreme Court of India. In our opinion, the consistent and well settled law on the point is that the High Court can interfere with the order of acquittal only when:

1. The appreciation of evidence by the trial Court is perverse or the conclusion drawn by it cannot be drawn on any view of the evidence.

2. Where the application of law is improperly done.

3. Where there is substantial omission to consider the evidence on record.

4. The view taken by the acquitting Court is impermissible on the evidence on record.

5. If the order of acquittal is allowed to stand it will result the miscarriage of justice."

838. In Jaswant Singh, the Supreme Court laid down the principles to be followed by the appellate courts while dealing with an appeal against acquittal. The Supreme Court observed that the order which is clearly unreasonable would justify interference. The relevant observations made by the Supreme Court read as follows:

" 21. The principle to be followed by appellate Courts considering an appeal against an order of acquittal is to interfere only when there are"compelling and substantial reasons" for doing so. If the order is "clearly unreasonable" it is a compelling reason for interference (See : Shivaji Sahabrao Bobade v. State of Maharashtra, [1973] 2 SCC 793). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat:(SCC p. 229 para 7)

"While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions." (See also George v. State of Kerala)

839. In Allarakha K. Mansuri, the Supreme Court again had an occasion to deal with the scope of High Court's power of interference with the order of acquittal. The Supreme Court held that where two views are possible, the one favouring the accused's innocence should be adopted. However paramount consideration should be to avoid miscarriage of justice. The relevant observations of the Supreme Court read as under:

"7.The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding."

840. In Aruvelu v. State (2009) 10 SCC (Cri.) 206, the Supreme Court referred to its earlier judgment in Ghurey Lal v. State of U.P. (2008) 10 SCC 450 and relying upon its other judgments observed as under:

"34. In Ghurey Lal v. State of Uttar

Pradesh [(2008) 10 SCC 450 , a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the appellate court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:

1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

2. The power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the appellate court must give due weight and consideration to the decision of the trial court.

3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.

4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either 'perverse' or wholly unsustainable in law."

841. In Satyavir Singh, the Supreme Court referred to its decision in Kunwar Bahadur Singh v. Shiv Baran Singh (2001) 9 SCC 149 and to its decision in Aruvelu and observed that unless the conclusions reached by the Court are palpably erroneous or contrary to law or are likely to result in injustice, the High Court may be reluctant to interfere with the judgment of acquittal. The Supreme Court referred to its observations in Kunwar Bahadur Singh that the Court should not hesitate to examine the matter on merits merely because there is a judgment of acquittal in favour of the accused and undue weightage should not be given if acquittal is based on surmises and conjectures and not substantiated by law and evidence on record. The Supreme Court concluded that the judgment of acquittal can be interfered with by the appellate court. However, exercise of judicial discretion would be guided by the settled principles. The Supreme Court further stated that it is neither permissible nor possible to enunciate any straitjacket formula which can be universally applied to all the cases. The court will have to exercise its discretion keeping in view the facts and circumstances of a given case. 842. In Lakhwinder Singh, while considering the judgment of the High Court acquitting the accused, the Supreme Court observed that the judgment of the High Court is based on surmises and conjectures and after reappreciating the evidence on record, the Supreme Court came to the conclusion that there are sufficient cogent grounds to disturb the acquittal. Accordingly, the judgment and order passed by the High Court was set aside and the order of trial court was restored. We shall examine this case in the light of the above principles.
843. The star witness of the prosecution is PW-160 Naruddin Shaikh. Learned Sessions Judge has not totally discarded his evidence but has held that he is neither a wholly reliable witness nor a wholly unreliable witness and, therefore, corroboration is necessary to his evidence. According to learned Sessions Judge, corroboration is absent in this case. We are inclined to agree with learned Sessions Judge. PW-160 Naruddin Shaikh is a resident of Goregaon. It appears that he stays in Goregaon with his family. He claims that A2-Ansari is his childhood friend. He is a driver by profession. He stays in a joint family. He has stated that he has not worked as a regular driver anywhere. He has stated that the last job he had undertaken was between 12/8/2009 and 15/8/2009 and that he does not have any regular employment anywhere. According to him, he works on daily wages whenever the work is available. In view of this evidence, in our opinion, learned Sessions Judge is right in observing that his evidence does not disclose that he has any regular source of income. In our opinion, PW-160 Naruddin Shaikh's statement that he went to Nepal as a tourist with Bharat Thakur cannot be accepted without corroboration. It is not the case of the prosecution that Bharat Thakur with whom he is supposed to have gone to Nepal had borne the expenses of his visit to Nepal. It was the duty of the prosecution to bring particulars about the source of income of PW-160 Naruddin Shaikh on record. We are not inclined to accept Mr. Nikam's submission that either PW-160 Naruddin Shaikh or the Investigating Officer should have been asked questions on this point because, it was the duty of the prosecution to unfold its case properly.
844. It is also necessary to note that PW-160 Naruddin Shaikh has not given any particulars as to the date when he left Mumbai for Nepal, date of his arrival in Nepal, by which train he went to Nepal and the name of the hotel where he stayed in Nepal. He has stated that at Sonavali border, a Register is kept where names of the persons crossing the border are noted. He has stated that he exchanged currency there. It was, therefore, the duty of the prosecution to bring relevant extract of the said Register on record or lead some other cogent evidence in that behalf. That, he exchanged currency at Sonavali boarder is also not substantiated by any evidence. Mr. Nikam is right when he says that being a tourist, PW-160 Naruddin Shaikh would not have foreseen that his ticket would be necessary for investigation in respect of some incident which might take place in future and, therefore, he was not expected to preserve the tickets. However, we are unable to accept Mr. Nikam's submission that PW-160 Naruddin Shaikh would not be able to remember even the name of the train by which he is alleged to have gone to Nepal or he would not remember the name of the hotel in which, according to him, he stayed. It is pertinent to note that he stayed in a hotel in Nepal for a sufficiently long time. He does not appear to be a person who can afford to go on pleasure trips to foreign countries frequently. Therefore, in the nature of things, one would expect him to remember the name of the train by which he travelled to Nepal and the name of the hotel where, he says, he stayed. He has not even given the approximate time when he went to Nepal. The argument that PW-160 Naruddin Shaikh did not remember these particulars is not palatable because, normally a person who visits a foreign country that too, for the first time, would not forget details of the train by which he travelled or the name of the hotel in which he stayed. It was, therefore, necessary for the prosecution to lead some evidence to establish PW-160 Naruddin Shaikh's alleged visit to Nepal.
845. Bharat Thakur would have provided a very vital corroborative piece of evidence. According to PW-160 Naruddin Shaikh, Bharat Thakur comes from Nepal. It is true that this fact is not disputed by the defence. It is not disputed that though Bharat Thakur does not have his own house in Nepal, his relatives reside in Nepal. If PW-160 Naruddin Shaikh went with Bharat Thakur to Nepal, then the prosecution should have examined Bharat Thakur particularly when his statement was recorded by the police. The prosecution has, in this connection, taken a stand that Bharat Thakur was unavailable though efforts were made to serve him and, therefore, the prosecution cannot be blamed for non-examination of Bharat Thakur. It is true that summons was issued to Bharat Thakur and effort was made to serve the summons on Bharat Thakur at his house. We have perused the record and we find that Bharat Thakur's wife was present when the summons was sought to be served. She appears to have told the police that Bharat Thakur had gone out. There is nothing on record to show that any further efforts have been made to contact Bharat Thakur.
846. Assuming that action under Sections 82 and 83 of the Code could not have been taken because warrant was not issued, the police could have made further attempts to serve Bharat Thakur. Bharat Thakur has a house in Goregaon where he is staying with his wife. It was, therefore, not impossible for the police to serve summons on him. The police ought to have made further efforts. Deposition of PW-160 Naruddin Shaikh was recorded on 29/9/2009. The prosecution knew the shortcomings of the evidence of PW-160 Naruddin Shaikh and, therefore, in order to corroborate his evidence, the prosecution ought to have taken all the possible steps to examine Bharat Thakur. If PW-160 Naruddin Shaikh's evidence was of sterling quality, we would not have insisted on examination of Bharat Thakur. But, we agree with learned Sessions Judge that though the evidence of PW-160 Naruddin Shaikh cannot be discarded as wholly unreliable, the prosecution story cannot be accepted on his sole testimony. Corroboration was needed to his evidence, which is absent in this case.
847. Once it is held that PW-160 Naruddin Shaikh's visit to Nepal is not established, then the entire story that A2- Ansari handed over the maps to A3-Shaikh which were similar to the map (Art.101) and PW-160 Naruddin Shaikh had occasion to see them and that he asked A2-Ansari whether he had started the business of preparing maps and that A3-Shaikh told him that his friends from Pakistan are coming and for that purpose, they needed the maps, cannot be held to be proved beyond doubt.
848. It must be noted, however, that learned Sessions Judge's conclusion that statement of PW-160 Naruddin Shaikh is anti-dated, is not correct. This conclusion is drawn on the basis of a stray statement made by PW-160 Naruddin Shaikh that A2-Ansari was arrested in this case before his statement was recorded by the police. PW-160 Naruddin Shaikh's statement was recorded on 5/12/2008. The evidence on record clearly establishes that A2-Ansari was arrested by Rampur Police on 10/2/2008 and he was arrested by the Mumbai Police in this case on 18/12/2008. This observation is, therefore, incorrect. We also find that there is no delay in recording his statement. Incident took place on 26/11/2008 and 27/11/2008. After carrying out investigation and obtaining necessary leads, statement of PW-160 Naruddin Shaikh was recorded on 5/12/2008. In the circumstances of the case, and looking to the nature of the offence, we do not find that there is any delay in recording statement of PW-160 Naruddin Shaikh.
849. We will now examine whether there is sufficient corroboration to PW-160 Naruddin Shaikh's evidence from the other evidence on record. According to the prosecution, A2-Ansari was arrested by PW-213 Ashok Kumar Raghav of U.P. Police at Rampur on 10/2/2008 and on his arrest a Pakistani passport (Art.801) bearing his photograph as holder of the same issued in the name of Hassan Hammad and identity card issued by Hukumate, Pakistan and maps showing locations of Mumbai city [Ex-803 (Colly.)] and two train tickets, one from Delhi to Mumbai having travel date of 12/2/2008 and another from Mumbai to Muzafarabad having travel date of 10/1/2008 were recovered. The date of issuance of the said passport is 10/11/2007 and the date of expiry of passport is 30/10/2012 and the entries on the said passport show that A2-Ansari left for Kathmandu on 15/11/2007 and he entered Nepal on the same day i.e. on 15/11/2007. According to the prosecution, the exchange of maps was in January, 2008. Thus, the passport (Art.801) supports the prosecution theory that near about the same time, the maps were exchanged by A2-Ansari to A3-Shaikh in Nepal. According to the prosecution, PW-213 Ashok Kumar Raghav is supported by PW-254 Manpreet Vohra, the Deputy High Commissioner in Indian High Commission, Islamabad, Pakistan.
850. We have carefully read the evidence of PW-213 Ashok Kumar Raghav, Addl. S.P. (Intelligence), Uttar Pradesh. It appears from his evidence that on 10/2/2008, A2-Ansari was arrested by Rampur Police in connection with terror attack on CRPF in which seven CRPF jawans and one civilian were killed. From A2-Ansari, a Pakistani passport issued in the name of Hassan Hammad (Art.801), identity card (Art.802) and maps [Art.803 (Colly.)] were recovered. We have seen maps [Art.803 (Colly.)] and we find that the maps contain important locations of Mumbai city. Cross-examination of this witness is totally ineffective. We have no reason to disbelieve this witness. We have also carefully read the evidence of PW-254 Manpreet Vohra, the then Dy. Commissioner in Indian High Commission at Islamabad. He has stated that the Government of India and Government of Pakistan exchange information in connection with investigation of cases pertaining to the terror attack on Mumbai which took place on 26/11/2008. He has stated that the Director General (South Asia) in Foreign Ministry of Government of Pakistan had handed over Dossier to him which included information about passport of Fahim Arshad Ansari @ Hammad Hassan issued by Government of Pakistan. He has stated that he was told that passport was issued to A2-Ansari in the name of Hassan Hammad on the basis of fake identity and particulars. He produced in the court the original Dossier given to him by the Director General (South Asia) in Foreign Ministry of Government of Pakistan. He produced xerox copy of the note, xerox copies of cover page and relevant paragraph 31 of the Dossier which are at Ex-1064 (Colly.). The original was returned to him. PW-254 Manpreet Vohra has also produced xerox copies of office copies of page Nos.11, 12 and 30 to 33 [Ex-1063 (Colly.)] of Dossier of A2-Ansari. Ex-1063 (Colly.) inter alia, contains the relevant pages of A2-Ansari's passport with photograph. It is indeed the photograph of A2-Ansari whom we have seen in the court. Cross-examination of this witness has not made any dent in his evidence. We have no reason to disbelieve this witness. While recording the statement of A2-Ansari under Section 313 of the Code, when he was asked that a passport issued in the name of Hassan Hammad and bearing his photograph as holder thereof and identity card issued by Hukumate, Pakistan were recovered from him, he stated that it is false. When he was asked that maps [Art.803 (Colly.)] were recovered from him and that PW-261 Krantikumar Varma, the Handwriting Expert, after examination of specimen handwriting and the handwriting on the maps [Art.803 (Colly.)] has come to the conclusion that the specimen handwriting and the handwriting on the maps [Art.803 (Colly.)] were of the same person i.e. A2- Ansari, he stated that this case is false. Thus, when A2- Ansari was asked about the maps [Art.803 (Colly.)] and the passport (Art.801), he has not given any explanation.
851. Now the question is even if we find that the evidence of PW-213 Ashok Kumar Raghav and PW-254 Manpreet Vohra cannot be discarded, how far can that help the prosecution in this case. We have already noted that the prosecution has not been able to establish that A2-Ansari handed over maps to A3-Shaikh in January, 2008 in Kathmandu, Nepal. If that link is not established, then finding of maps showing locations of Mumbai and Pakistani passport with A2-Ansari will not help the prosecution to hold A2-Ansari guilty in this case. We are informed that in this connection, a criminal case is pending before the Rampur Court. That court will decide as to whether A2-Ansari is guilty or not independently and in accordance with law. But, the prosecution cannot draw any advantage from this evidence in this case. The version of PW-213 Ashok Kumar Raghav and PW-254 Manpreet Vohra will have to be considered along with other evidence by the Rampur Court where the said criminal cases are pending.
852. Another circumstance on which great reliance is placed by the prosecution is that A2-Ansari wanted to give logistic support to the accused and, therefore, he was looking for a residential accommodation in South Mumbai and, in fact, he took residential accommodation on rent at Colaba near Badhwar Park somewhere in the year 2007 from PW-40 Shantabai Bhosale. The prosecution has adduced evidence of PW-35 Gulabkar, the PCO owner, who has stated that A2-Ansari had given him Rs. 5,000/- and was constantly asking him to find a place for him. He has stated that he could not find a place for A2-Ansari and ultimately, he returned Rs. 4,500/- to A2-Ansari. He has stated that A2-Ansari had impersonated himself as Sahil Pawaskar. He identified A2-Ansari in the identification parade as well as in the court as the person who contacted him for the residential accommodation. The prosecution has also relied upon the evidence of PW-38 Rajendra Bhosale, who has stated that one Kumar Shivaji, an Estate Agent, had brought A2-Ansari to him because A2-Ansari wanted a place to stay in South Mumbai. He, therefore, took both of them to PW-40 Shantabai Bhosale, who wanted to let out her premises and, thereafter, a leave and licence agreement was executed between them. A2-Ansari paid a deposit of Rs. 50,000/- and the rent was decided at Rs. 3,000/- per month. PW-40 Shantabai Bhosale rented her premises to A2-Ansari. PW-40 Shantabai Bhosale has supported this case and stated that A2-Ansari had, in fact, stayed in her premises and had left abruptly without taking his deposit amount from her. Copy of the leave and licence agreement dated 10/12/2007 is on record. In this connection, learned Sessions Judge has observed that the prosecution failed to bring on record the original leave and licence agreement. PW-40 Shantabai Bhosale has stated that she had handed over the original agreement to the police. Learned Sessions Judge has held that if that is so, the police ought to have produced the original agreement on record. Mr. Nikam submitted that learned Sessions Judge was not deciding a civil dispute and he should not have insisted on the original agreement. He should have only considered whether in fact, A2-Ansari stayed with PW-40 Shantabai Bhosale under the fictitious name of Sahil Pawaskar. In our opinion, even if this agreement is kept out of consideration, it is possible to hold on the basis of the evidence of PW-40 Shantabai Bhosale, PW-38 Rajendra Bhosale and PW-35 Jeevan Gulabkar that A2-Ansari did stay in the house of PW-40 Shantabai Bhosale under a fictitious name 'Sahil Pawaskar'. Examination of Estate Agent, Kumar Shivaji was not necessary considering the fact that PW-40 Shantabai Bhosale who rented her premises to A2-Ansari and PW-38 Rajendra Bhosale, who had taken Kumar Shivaji to her, have been examined. PW-38 Rajendra Bhosale and PW-35 Jeevan Gulabkar have identified A2-Ansari in the identification parade as well as in the court. PW-40 Shantabi has identified him in the court. There is no reason to disbelieve these witnesses.
853. To this case of the prosecution, corroboration is available from further evidence which the prosecution has adduced. It is the prosecution case that during the relevant period, A2-Ansari took admission in Softpro Computer Education at Fort, Mumbai. In this connection, the prosecution has examined PW-36 Vivek Saxena who is the manager of Softpro Computer Education. He has produced inquiry form (Ex-168) and the admission form (Ex-169), which are stated to have been filled in by A2- Ansari. The photograph of A2-Ansari is seen on the admission/application form (Ex-169). On the request made by Mr. Nikam, we had called A2-Ansari to our court. We found that the photograph on Ex-169 is the photograph of A2-Ansari. The prosecution has also led evidence of PW-146 Jayant Aher, who had examined the specimen handwriting of A2-Ansari and his handwriting on the inquiry form (Ex-168) and application/admission form (Ex-169) and has confirmed that they are in the handwriting of A2-Ansari. It is is not the case of A2-Ansari in the statement recorded under Section 313 of the Code that he was forced to fill in the inquiry form (Ex-168) and application/admission form (Ex-169) of Softpro Computer Education. He has merely stated that this case is false. It is pertinent to note that A2-Ansari has given PW-40 Shantabai Bhosale's address as his current address in the application/admission form (Ex-169).
854. We have no reason to disbelieve PW-36 Vivek Saxena, the Manager of Softpro Computer Education. He has stated that A2-Ansari had visited their institute on 10/12/2007. He has stated that A2-Ansari filled in the inquiry form (Ex-168). He has stated that A2-Ansari signed Ex-168 in his presence. He has also identified the signature of A2-Ansari on admission form (Ex-169). He has produced the receipt issued by him (Ex-170). In the cross-examination, he has stated that there were only 30 students in the institute in December, 2007. He has admitted that he was not in the teaching faculty, but he used to take rounds of the institute. It is suggested that since PW-36 Vivek Saxena was working on the administrative side, he would not remember the students. It is difficult to accept this submission. There were only 30 students in the institute in December, 2007. Therefore, this institute does not appear to have many students. It was, therefore, not difficult for PW-36 Vivek Saxena to remember the faces of the students. A2-Ansari had signed (Ex-168) in the presence of this witness. Both Ex-168 and Ex-169 bear signature of this witness and signature of A2-Ansari. Receipt was also issued by this witness. There is, therefore, no reason to disbelieve him. Cross-examination of this witness has not made any dent in his evidence.
855. We find no substance in Mr. Mokashi's submission that instead of producing the loose sheets, the prosecution should have produced the Register maintained by the Computer Institute, the muster roll and, if A2-Ansari had not attended the classes, a certificate to that effect from the said Computer Institute. Softpro Computer Education is not like a college or any other educational institution. Attendance in such classes is optional. It is not compulsory. When the inquiry form and admission form are produced, there was no need to produce the muster roll or attendance certificate.
856. It appears that in his examination under Section 313 of the Code, A2-Ansari was not confronted with his photograph on application/admission form (Ex-169). Mr. Nikam therefore requested us that we should put that question to him. We did not accede to his request. We are dealing with an appeal against acquittal. A2-Ansari has been asked whether as stated by PW-36-Vivek Saxena, he had taken admission in the Softpro Computer Education by impersonating himself as Sahil Pawaskar, whether he has signed the inquiry form (Ex-168) and application/admission form (Ex-169) in the presence of PW-36 Vivek Saxena and whether the signatures on Ex-168 and Ex-169 are his signatures. He has answered that this case is false. Therefore, in our opinion, it is not necessary to ask him any question about his photograph. Even if that photograph is kept out of consideration, it is possible to hold that A2-Ansari took admission in the Softpro Computer Education. The question is whether assuming A2-Ansari took admission in Softpro Computer Education, this finding of ours will help the prosecution in this case. The answer to this question is in the negative. Assuming he had stayed in the house of PW-40 Shantabai Bhosale and had taken admission in Softpro Computer Education that does not help the prosecution. It does not in any way link A2-Ansari with A1-Kasab and other conspirators in this case. It is not the prosecution case that after the accused landed in Mumbai, A2-Ansari helped them. As we have already noted the handing over of maps in Nepal itself is not proved. Therefore, these circumstances even if held to be proved will not help the prosecution.
857. That takes us to the map (Art.101) which according to the prosecution, was recovered from the right side pocket of cargo pant worn by deceased A1-Abu Ismail under panchnama (Ex-99). According to the prosecution, this map showed the locations of Mumbai city and it was handed over by wanted A5-Kaahfa to deceased A1-Abu Ismail in Pakistan as per the conspiracy.
858. Before we go to the merits of this part of the prosecution case, we must refer to the observations of learned Sessions Judge about the fact that inquest panchnama (Ex-97) and the seizure panchnama (Ex-99) are scribed in different ink. He has stated that that creates a doubt. We find no substance in this submission. Mr. Nikam has drawn our attention to various documents of the same day which are on record. They are prepared round about the same time. They are of the same police station. There is a difference in the ink used while writing those documents. Therefore, it is possible that different pens are used for writing Ex-97 and Ex-99 also. It is pertinent to note that there is ten minutes' gap between these two panchnamas. Therefore, not much importance can be given to the difference in ink. We are also not inclined to accept learned Sessions Judge's reasoning that when maps are available on Google website, it was not necessary for the terrorists to carry them. Printed maps may confuse a person because of the vast information contained therein. Manually prepared maps which may focus on certain special locations may be more useful. But, the question is whether map (Art.101) was found in the pocket of deceased A1-Abu Ismail?
859. Learned Sessions Judge has disbelieved the prosecution case that map (Art.101) was found in the right side pocket of the cargo pant worn by deceased A1- Abu Ismail on the ground that considering the fact that deceased A1-Abu Ismail was carrying this map with him for a long period of time on his journey from Pakistan to Badhwar Park, then to CST, then to Cama Hospital and then to Girgaum Chowpaty where he was shot dead, and considering the role played by deceased A1-Abu Ismail, the map (Art.101) would have been soiled. Since map (Art.101) is a thin paper, there would have been wrinkles on the map. According to him, deceased A1-Abu Ismail had received serious injuries and blood was oozing from those injuries, therefore, there would have been blood stains on the said map. He has observed that deceased A1-Abu Ismail was kept on a stretcher which is 'C' shaped. Therefore, the blood gathered in the curve of the stretcher must have percolated through the trouser and map would have got blood stains. Since there are no blood stains, the prosecution story must be rejected.
860. It is true that on the right leg of deceased A1-Abu Ismail, there were no injuries. There was only one abrasion. The postmortem notes, the inquest panchnama and evidence of PW-23 Dr. Mohite, and PW-14 Shivekar, the panch witness also indicate that there were no injuries on the right leg of deceased A1-Abu Ismail. It is also true that since map (Art.101) was kept in the front pocket of the trouser, which is on the upper thigh, blood which might have collected in the curved portion of the stretcher could not have reached there. But, in order to understand the rival submissions, we had a look at the cargo pant (Art.3), particularly the pocket from where the map (Art. 101) was recovered. There are small spots of blood on the boarder of the pocket. We find that the appeal memo contains a sketch of the pocket. It shows that there were blood stains on the corner of the right side of the pocket. There are two spots of blood on the upper portion. This fact is admitted in the appeal memo. Thus, the prosecution has also come with the case that there were blood stains on the corner and upper portion of the right side pocket. In such circumstances, the view taken by learned Sessions Judge on this aspect cannot be called perverse. Merely because some other view is possible that view cannot be disturbed. It also cannot be disputed that deceased A1-Abu Ismail played a major role in the attack. He threw hand grenades. He fired with AK-47 rifles. Along with A1-Kasab, he had jumped over the Cama Hospital rear gate. His movements were swift. It is true that the map (Art.101) may not be with A1-Abu Ismail right from the time it was given to him. Before he landed he has changed clothes twice. He must have kept it at a secured place looking to its importance. But once, they started from Badhwar Park, it was with him. We have seen map (Art.101). It is a map drawn on a thin paper. From Badhwar Park to Chowpaty, deceased A1-Abu Ismail's movements were packed with action. Therefore, the view taken by learned Sessions Judge that there should have been some wrinkles on the map (Art.101) cannot be called perverse or unreasonable. It is a reasonably possible view.
CONCLUSION
861. In the ultimate analysis, we feel that though evidence of PW-213 Ashok Kumar Raghav, the Addl. S.P. (Intelligence), Uttar Pradesh and PW-254 Manpreet Vorha, the Deputy High Commissioner, Pakistan cannot be discarded and though on the basis of evidence on record, it is possible to hold that A2-Ansari did stay in PW-40 Shantabai Bhosale's house situate in South Mumbai by impersonating himself as Sahil Pawaskar and it is also possible to hold that he did take admission in Softpro Computer Education, Fort, Mumbai by impersonating himself as Sahil Pawaskar, this evidence does not help the prosecution in this case because the prosecution has not established beyond doubt the handing over of maps by A2-Ansari to A3-Shaikh in Kathmandu in January, 2008. Stay of A2-Ansari in PW-40 Shantabai Bhosale's house or his taking admission in Softpro Computer Education by itself is not sufficient to link him with A1-Kasab and other conspirators in this case. So far as absence of wrinkles and blood stains on map (Art.101) is concerned, the view taken by learned Sessions Judge is a reasonably possible view. The view taken by him that the prosecution has not been able to establish beyond reasonable doubt that map (Art.101) was recovered from the right side pant packet of deceased A1-Abu Ismail because had it been recovered, it would have wrinkles and blood stains, cannot be called perverse. A2-Ansari's acquittal must, therefore, be upheld.
862. Once we come to a conclusion that the prosecution has not been able to establish its case against A2-Ansari beyond reasonable doubt, it must be held that the prosecution has also not been able to establish its case against A3-Shaikh. In fact, once we hold that PW-160 Naruddin Shaikh's evidence is not corroborated and, therefore, the prosecution case about the exchange of maps in Kathmandu, Nepal cannot be accepted, A3-Shaikh cannot be convicted in this case. As held by learned Sessions Judge, A2-Ansari and A3-Shaikh must get the benefit of doubt.
863. We have held that A1-Kasab's confessional statement is true and voluntary and can be relied upon because, it is corroborated by other evidence. The question is whether part of the statement which relates to involvement of A2-Ansari and A3-Shaikh can be kept out of consideration. We have at the outset noted all the principles underlying the evidentiary value of judicial confession. It is open to the court to accept the inculpatory part of the confessional statement and exclude the exculpatory part. It is open to the court to accept a part of the confessional statement which is corroborated by other evidence on record and exclude that part which is not corroborated. In view of this, we find no difficulty in excluding that part of the confessional statement which refers to the involvement of A2-Ansari and A3-Shaikh as there is no sufficient corroboration to that part.
864. In an appeal against acquittal unless the view taken by the trial court is totally perverse and unsustainable, it cannot be disturbed. Undoubtedly, some other view of the prosecution case about involvement of A2-Ansari and A3-Shaikh may be possible. But, merely because some other view is possible, if the view taken by the trial court is reasonably possible, it cannot be substituted by that other view. Examined on the touchstone of the principles which we have noted in the beginning, we are of the view that the view taken by learned Sessions Judge so far as involvement of A2-Ansari and A3-Shaikh in this case is concerned, cannot be called unreasonable, palpably false, manifestly erroneous and demonstratively unsustainable which merits our interference. The State Appeal will have to be, therefore, dismissed. We, however, make it clear that so far as the merits of the cases pending against A2- Ansari and A3-Shaikh in Rampur are concerned, we have not expressed any opinion. Nothing said by us in this judgment may be treated as our expression of opinion on the merits of those cases. The court seized of those cases shall dispose them of, independently in accordance with law. Having dealt with the State Appeal, we shall now go to the conviction and sentence of A1-Kasab.
865. We have dealt with each incident separately, we have confirmed the findings of learned Sessions Judge in respect of each incident after giving reasons for the same. We have held that the prosecution has successfully proved the offence of criminal conspiracy and waging war. We now proceed to the aspect of conviction and sentence.

(1) In view of the reasons stated hereinabove, we confirm the conviction of A1-Kasab of the offence punishable under Section 120-B read with Section 302 of the IPC.

(2) We confirm the conviction of A1-Kasab of the offence punishable under Section 121 of the IPC.

(3) We confirm the conviction of A1-Kasab of the offence punishable under Section 16 of the Unlawful Activities (Prevention) Act, 1967.

(4) We confirm the conviction of A1-Kasab of the offence punishable under Section 302 of the IPC for having committed murders of;

a) Amarchand Narav Solanki

b) Sitaram Mallapa Sakhare

c) Rahamutall Ibrahim

d) Vinod Madanlal Gupta

e) Ambadas Ramchandra Pawar

f) Abbas Rajjab Ansari

g) Tukaram Ombale

(5) We confirm the conviction of A1-Kasab of the offences punishable under Section 302 read with Section 34 of the IPC and under Section 302 read with Sections 109 and 120-B of the IPC.

866. For all these offence A1-Kasab is sentenced to death. We have heard arguments of learned counsel for the State and learned counsel for A1-Kasab on the question whether death sentence of A1-Kasab should be confirmed or not. We will deal with that aspect after we deal with the conviction and sentence of other offences.

(1) We confirm the conviction and sentence of A1- Kasab for offences punishable under Section 307 read with Section 34 of the IPC and under Section 307 read with Section 109 read with Section 120-B of the IPC.

(2) We confirm the conviction and sentence of A1- Kasab for the offence punishable under Section 392 read with Section 34 of the IPC.

(3) We confirm the conviction and sentence of A1- Kasab for the offence punishable under Section 397 of the IPC.

(4) We confirm the conviction and sentence of A1- Kasab for the offence punishable under Section 364 of the IPC.

(5) We confirm the conviction and sentence of A1- Kasab for the offences punishable under Section 333 read with Section 34 of the IPC and under Section 333 read with Section 109 read with Section 120-B of the IPC.

(6) We confirm the conviction and sentence of A1- Kasab for the offences punishable under Section 332 read with Section 34 of the IPC and under Section 332 read with Section 109 read with Section 120-B of the IPC.

(7) We confirm the conviction and sentence of A1- Kasab for the offences punishable under Sections 121-A and 122 of the IPC.

(8) We confirm the conviction and sentence of A1- Kasab for the offences punishable under Section 25(1B)(a), under Section 25(1A) and under Section 27 of the Arms Act.

(9) We confirm the conviction and sentence of A1- Kasab for the offence punishable under Section 9-B(1)(a)(b) of the Explosives Act.

(10) We confirm the conviction and sentence of A1- Kasab for the offence punishable under Section 3(b) of the Explosives Substances Act, 1908.

(11) We confirm the conviction and sentence of A1- Kasab for the offence punishable under Section 151 and under Section 153 of the Railways Act.

(12) We confirm the conviction and sentence of A1- Kasab under Section 3(3) of Passport (Entry into India) Act, 1920.

(13) We confirm the conviction and sentence of A1- Kasab for the offence punishable under Section 135(1)(a) of the Customs Act.

(14) We confirm the conviction and sentence of A1- Kasab for the offences punishable under Section 342 read with Section 34 of the IPC and under Section 342 read with Section 109 read with Section 120-B of the IPC.

(15) We confirm the conviction and sentence of A1- Kasab for the offences punishable under Section 343 read with Section 34 of the IPC and under Section 343 read with Section 109 read with Section 120-B of the IPC.

(16) We confirm the conviction and sentence of A1- Kasab for the offence punishable under Section 436 of the IPC.

(17) We confirm the conviction and sentence of A1- Kasab for the offences punishable under Sections 3 and 4 of the Prevention of Damage to Public Property Act.

(18) We confirm the conviction of sentence of A1- Kasab for the offences punishable under Sections 13, 18 and 20 of Unlawful Activities (Prevention) Act , 1967.

(19) We confirm the conviction and sentence of A1- Kasab for the offence punishable under Section 14 of the Foreigners Act.

877. Learned Sessions Judge has not imposed separate sentence for offences which are minor in nature as the sentence of death has been awarded to the accused for the offences punishable under Section 120-B read with Section 302 of the IPC. He has made punishment for the offences committed in furtherance of common intention and similar offences abetted by A1-Kasab punishable with one and the same punishment. He has not awarded separate sentence for the offence covered by Section 34 and Section 109 read with Section 120-B of the IPC.
878. We shall now consider the question whether death sentence should be awarded to A1-Kasab for the offences punishable under Sections 120-B of the IPC read with Section 302 of the IPC, Section 121 of the IPC and Section 16 of the Unlawful Activities (Prevention) Act, 1967.
879. Mr. Nikam, learned Special Public Prosecutor submitted that the death sentence awarded to A1-Kasab deserves to be confirmed. He submitted that there are special circumstances which should persuade this court to confirm the death sentence. According to him, A1-Kasab has exhibited exceptional cruelty and brutality. The mode and the manner in which the murders are committed by A1-Kasab and his abnormal behaviour shocks the conscience. Mr. Nikam submitted that the murders are committed with previous planning. Evidence of the prosecution witnesses and A1-Kasab's confessional statement confirm this fact. Mr. Nikam submitted that extreme brutality is evident from the manner in which A1- Kasab killed navigator Solanki. It is not possible to say that A1-Kasab is a misguided soul or that he was brainwashed by his handlers. He has voluntarily joined the conspiracy. He has made it clear to PW-218 Ms. Sawant-Waghule, learned Magistrate who recorded his confessional statement that he wants more Fidayeens like him to be created. He waged war against the Government of India. He tried to overawe Government of India and the Government of Maharashtra by show of criminal force. Mr. Nikam submitted that such a person does not deserve any sympathy.
880. Mr. Nikam drew our attention to the judgment of the Supreme Court in Bachan Singh v. State of Punjab 1980 (2) SCC 684, where the Supreme Court has noted the aggravating and mitigating circumstances which the courts must consider while dealing with the question whether extreme penalty of death should be awarded to a person or not. He also drew our attention to the judgment of the Supreme Court in Machhi Singh & Ors. v. State of Punjab, 1983 (3) SCC 470 where after following the guidelines laid down in Bachan Singh the Supreme Court has stated that balance sheet should be drawn of aggravating and mitigating circumstances and a just balance has to be struck before exercising option. Mr. Nikam submitted that in this case except young age, there is no other mitigating circumstances, however, insofar as the age is concerned, A1-Kasab's actions show that his mental age overrides his physical age. Though he knew the consequences of his actions he persisted in killing people and proclaimed that he is a Fidayeen and he wanted to set an example for people to follow. Mr. Nikam submitted that in any case young age is not always the decisive factor. In this connection he drew our attention to the judgments of the Supreme Court in Sevaka Perumal & Anr. v. State of Tamil Nadu, 1991 SCC (Cri.) 724 and Amrutlal Someshwar Joshi v. State of Maharashtra, 1994 (3) Crimes 726. Mr. Nikam submitted that assuming A1-Kasab was forced to join LeT that will also not be a ground for giving a lesser punishment because he could have easily contemplated the disastrous effect of his actions. In this connection, he relied on Adu Ram v. Mukna & Ors., 2005 SCC (Cri.) 1635 and Krishna Mochi & Ors. v. State of Bihar, 2002 SCC (Cri) 1220. He submitted that, if the extreme penalty of death is not awarded to A1-Kasab that would amount to mockery of justice. He submitted that if a balance sheet is drawn in this case aggravating circumstances would far outweigh the mitigating circumstances. Mr. Nikam submitted that A1-Kasab has killed women, children, senior citizens and policemen. He has never shown any remorse. There is no scope for rehabilitation for a person like him. Victim's cry for justice will also have to be taken into consideration by this court and if, in a case like this, death sentence is not awarded there will be no deterrence. He, therefore, urged that the death sentence awarded to A1-Kasab be confirmed.
881. Mr. Solkar, learned counsel for A1-Kasab, on the other hand, submitted that A1-Kasab has no mind of his own. He acted like a robot. He was used as a tool by his handlers. He was brainwashed by the handlers. He was misguided and made to commit murders in the name of religion. He claims to be a Fidayeen. He is trained to die. Mr. Solkar submitted that his death will not deter people like him, but it will encourage them. He will become a martyr. In fact, A1-Kasab has stated that he wants to set an example for others. His death will fulfill his ideals and his religious beliefs and send signal across the border. Mr. Solkar submitted that the present trend in penology is to prefer rehabilitation to retribution. Considering A1- Kasab's age, which is a mitigating circumstance, it is possible to reform or to rehabilitate him. Mr. Solkar submitted that there are indications that A1-Kasab is mentally unstable. He committed the crime when he appears to have been emotionally and mentally unstable and, therefore, this court should not give him death sentence. Mr. Solkar submitted that public abhorrence of crime or public reaction should not weigh with this court while considering the question of sentence. Mr. Solkar submitted that this is a fit case where this court should substitute life imprisonment for death sentence.
882. It is necessary to first refer to the relevant judgments of the Supreme Court to which our attention is drawn. The landmark judgment on this point is delivered in Bachan Singh's case. In that case, the Supreme Court laid down the mitigating and aggravating circumstances which the court has to consider when it is called upon to decide whether death sentence should be awarded to a person or not. It would be appropriate to quote them. "Aggravating circumstances :

A court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure,k 1973, or who had rendered assistance to a magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code." "Mitigating circumstances:- In the exercise of its discretion in the above cases, the court shall take into account the following circumstances :-

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can

be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

The following observations of the Supreme Court are also material.

"209. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society."

Nonetheless, it cannot be over-emphasized that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

883. In Machhi Singh, the Supreme Court reiterated the principles laid down in Bachan Singh and stated that the reasons why the community as a whole does not endorse the humanistic approach reflected in "death sentence-inno- case" doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of "reverence for life" principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The Supreme Court further observed that the very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. The Supreme Court emphasized that every member of the community owes a debt to the community for this protection and that when ingratitude is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The Supreme Court went on to observe that the community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime. The Supreme Court laid stress on 'the manner of commission of murder' and observed that when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community, the death penalty will be justified. It is pertinent to note that the manner in which the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death, was stated to be a ground for awarding death sentence. The Supreme Court then moved on to 'the motive for commission of murder' and stated that the death penalty would be justified when the murder is committed for a motive which evinces total depravity and meanness. A cold blooded murder committed for an unlawful purpose or a murder committed in the course of betrayal of motherland were stated to be aggravating circumstances. 884. The Supreme Court then referred to 'anti-social or socially-abhorrent nature of the crime'. The Supreme Court stated that when a murder is committed not for personal reasons but in circumstances which arouse social wrath, which can terrorize people can also be considered as a ground for imposing death penalty. 'Magnitude of crime' was also considered as one of the grounds which can prompt the court to impose the death penalty. The Supreme Court observed that when the crime is enormous in proportion for instance, when multiple murders of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed, it would be good enough ground to impose death penalty. 'Personality of victim of murder' will also be one of the circumstances. The Supreme Court laid down proposition which emerge from Bachan Singh's case as under:

(i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability;

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

885. The Supreme Court then stated that in order to apply the aforementioned guidelines, the following questions may be asked and answered.

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

886. The Supreme Court concluded that if upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.
887. In Devendra Pal Singh, the accused had used bombs. Nine persons died due to the bomb blast, several persons were injured and a number of vehicles caught fire and were destroyed on account of the perpetrated acts. The Supreme Court observed that the dastardly acts were diabolic in conception and cruel in execution. "Terrorists" who are sometimes described as "death merchants" have no respect for human life. Innocent persons lose their lives because of mindless killing by them. The Supreme Court observed that any compassion for such persons would frustrate the purpose of enactment and would amount to misplaced and unwarranted sympathy.
888. In Simon, life imprisonment was awarded by the Sessions Court to the accused and it was confirmed by the High Court. The accused were members of Veerappan gang. They had killed 22 persons and injured several persons by blasting land mines. The Supreme Court enhanced the sentence of each of the accused from life imprisonment to death penalty. While doing so, the Supreme Court observed that there was nothing to show that the appellants therein were compelled to fall in line with the criminal activity of accused 1 therein or that they joined his group on account of any duress or compulsion. The Supreme Court further observed that the manner in which the crime was committed clearly show that any person can contemplate the disastrous effect of blasting of landmines. It was evident that the crime was diabolically planned. The Supreme Court observed that the appellants therein are a threat and grave danger to the society at large. They must have anticipated that their activity would result in elimination of a large number of lives. The Supreme Court noted that as a result of criminal activities, the normal life of those living in the area has been totally shattered and it would be a mockery of justice if extreme punishment is not imposed. Having considered all the aggravating and mitigating circumstances, the Supreme Court held that there can hardly be a more appropriate case than the present one to award maximum sentence. The Supreme Court held that the court has to perform this onerous duty for self preservation i.e. preservation of persons who are living and working in the area where the appellants therein and their group operate.
889. In Krishna Mochi, a militant organization had attacked the members of a particular community in a village in Bihar and set fire to their houses. Thirty five persons were killed and several persons were injured. The accused were awarded death sentence. The Supreme Court confirmed the death sentence. The Supreme Court while confirming the death sentence, held that there cannot be any manner of doubt that the villagers were done to death in an extremely diabolic, revolting and dastardly manner and had affected the normal tempo of life of the community in the locality. The Supreme Court observed that 35 persons belonging to one community were massacred. The Supreme Court held that after taking into consideration the balance sheet of aggravating and mitigating circumstances, in which 35 persons have been deprived of their lives by the accused persons who were thirsty of their blood, it had no doubt in holding that culpability of the accused persons assumes the proportion of extreme depravity and a special reason can legitimately be said to exist within the meaning of Section 354(3) of the Code and it would be mockery of justice if extreme penalty of death is not imposed.
890. In Amrutlal Someshwar Joshi, the accused was claiming to be a juvenile. After considering the evidence on record, the Sessions Court convicted the appellant under Section 302 of the IPC and sentenced him to death. The High Court confirmed the death sentence. His appeal was dismissed by the Supreme Court. The appellant filed review petition and requested that his young age may be considered as a mitigating circumstance and requested that the death sentence may be converted into life sentence. The Supreme Court upon considering the material on record came to the conclusion that he was 20 years of age on the date of the incident. The Supreme Court dismissed the review petition by holding that there is no inflexible rule that a criminal aged about 17 or 18 years should never be sentenced to death irrespective of other circumstances, however aggravating they may be.
891. In Sevaka Perumal, the appellants therein had enticed innocent boys, taken them to far flung places and murdered them for gain in cold-blooded, premeditated and planned way. The Sessions Court sentenced them to death. The High Court confirmed the death sentence. The Supreme Court dismissed the appeal. It was contended, inter alia, before the Supreme Court that the appellants therein were young boys and they were the breadwinners of their family and, therefore, compassionate view may be taken and their sentence may be converted into life. The Supreme Court rejected this submission and confirmed the death sentence. The Supreme Court held that the fact that the appellants therein are young men and they are the breadwinners of their family are compassionate grounds which are always present in most cases and they are not relevant for interference.
892. In Adu Ram, the Supreme Court reiterated its observations in Sevaka Perumal and held that undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law and society could no longer endure under such serious threats. The Supreme Court observed that it is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc.
893. In the light of the Supreme Court judgments, we have now draw a balance sheet of aggravating and mitigating circumstances. After giving due weightage to mitigating circumstances, we must strike a just balance and exercise the option. For better appreciation, it would be appropriate to note the aggravating circumstances, which are clearly discernible.

(1) A1-Kasab is individually responsible for seven murders. He has committed more than 66 murders in furtherance of common intention of himself and deceased A1-Abu Ismail. He has committed rest of the murders by abetting them by conspiracy.

(2) All murders display extreme brutality and cruelty. They are committed after previous planning. Innocent people are mercilessly killed by A1-Kasab with use of AK-47 rifles and explosives. Those killed include women, children, aged people and policemen. The murders were committed in an extremely brutal grotesque, diabolical, revolting or dastardly manner so as to arouse extreme indignation of the community.

(3) The crime is enormous in proportion. The magnitude of the attack is indicative of the pre-planning. The attack unleashed such a wave of terror that several victims were not even ready to come forward and depose in the court. A1-Kasab is a threat to the society.

(4) A1-Kasab has exhibited extreme perversity and depravity. It was he who suggested that navigator Amarchand Solanki should be killed. Deceased A9- Shoaib and deceased A3-Nazir @ Abu Umar caught hold of the legs of Amarchand Solanki. A1-Kasab caught hold of his hair and slit his throat. The postmortem notes of Amarchand Solanki and confessional statement of A1-Kasab bear this out. This was a cold blooded murder.

(5) A1-Kasab planted RDX bomb in a taxi which exploded at Vile Parle killing the innocent passenger and the driver of the taxi and seriously injuring many.

(6) PW-52 Khaliluddin and his son were seriously injured at CST due to firing and bomb blast. He identified A1-Kasab in the court as the person who was firing indiscriminately at the people at CST. He has stated that A1-Kasab, who was firing was in a joyous mood due to the result of his firing. He continued to fire at people for 15 to 20 minutes. It is evident that A1- Kasab took perverse pleasure in killing innocent people.

(7) Another incident of perversity of A1-Kasab is narrated by PW-108 Thomas Uledhar, who was in Cama Hospital at the relevant time. He had seen A1-Kasab from close quarters. He identified A1-Kasab in the court. He has stated that the terrorists could not attack the patients because they were hiding in the toilets and sister's check up room, but they were searching for patients. In his confessional statement, A1-Kasab has stated that as they entered a building at B.T. Road to avoid police firing, they realized that it was a hospital because he could hear women screaming and children crying. They decided that they would go to hospital rooms and kill women and children. They, therefore, tried to open the doors of the rooms, but could not succeed because they were closed from inside. This is indicative of A1-Kasab's warped mental attitude. He had no qualms about killing patients admitted in hospital.

(8) Before recording his confessional statement, learned Magistrate PW-218 Ms. Sawant-Waghule asked A1-Kasab as to why he wanted to make a confessional statement. He stated that he wanted to make a confessional statement because he was not sorry for what he had done. He stated that he wanted more Fidayeens like him to be created after taking inspiration from his work. Thus, he never showed any remorse or repentance for what he had done, but loudly proclaimed that he wanted to be a role model for others.

(9) In his confessional statement, A1-Kasab has stated that they had decided that he and deceased A1-Abu Ismail would go to VTS (CST), create heaps of dead bodies by firing at people and then they would proceed to Malabar Hill and fire. He has further stated that they reached Mumbai late by one and half hour. They found that the crowd at CST was much less than what they were shown on the CD and, therefore, they were unhappy. A1-Kasab was obviously unhappy because they wanted to kill more people. He has, therefore, no value for human lives. He took devious pleasure in killing people.

(10) A1-Kasab was not compelled by LeT to fall in line with LeT's ideology. His confessional statement shows that he willingly and voluntarily joined LeT. He had decided to take training for jehad. He willingly took extensive training for jehad. When wanted A2-Zaki-Ur-Rehaman Lakhvi asked the trainees to stop the operation for a while, he told him that for years he wanted to successfully carry out the mission and he should not stop it now. He did not leave the camp when he was asked to go home for a while but continued to serve the trainees. Therefore, it is impossible to say that he was misguided by LeT; that he did not have a mind of his own or that he was merely used by the handlers as a tool. He is not a misguided person. He knew the consequences of his actions and he wanted to be a part of the conspiracy and voluntarily joined it.

(11) Perhaps the weightiest aggravating circumstance is that A1-Kasab waged a war against the Government of India pursuant to a conspiracy which was hatched in Pakistan, the object of which was to inter alia, destabilize Government of India and to weaken India's economic might. He indulged in mindless killings of innocent people with a view to overawing Government of India and achieve cessation of a part of Indian territory. There was an attempt to create ill-will and disaffection between different religions of India so as to damage its secular fabric. Waging war is a serious crime which calls for deterrent punishment.

(12) A1-Kasab along with co-conspirators killed policemen. He and his co-conspirators engaged the policemen and commandos in a battle. Effort was made by the conspirators to keep people hostages so as to make the Government of India helpless and accede to their unlawful demands. They challenged the Indian Army and the State Police. A1-Kasab targetted CST which is under the command of the Central Government. The terrorist attack made by A1-Kasab was not like any other terrorist attack which merely results in the breach of police tranquility. It was an attack on the Government of India whose stability is most essential and crucial for the very existence of democratic India. A1-Kasab challenged the sovereign authority of Republic of India which offence calls for the severest punishment.

894. The only mitigating circumstance is the age of A1- Kasab, but as stated by the Supreme Court in the aforementioned cases age is not always a decisive factor for giving lesser penalty of life imprisonment. Extreme brutality and diabolic nature of the crime which arouses public indignation can override this consideration. The brutality, perversity and cruelty exhibited by A1-Kasab by committing multiple murders of innocent men, women, children, aged persons and policemen without provocation for a motive which has no moral justification makes this case a gravest case of extreme culpability. The conduct of A1-Kasab shows that his mental age overrides his physical age. He has never shown any repentance, but has loudly proclaimed that he wants to create more Fidayeen by setting an example by his conduct. It is impossible to agree with Mr. Solkar that A1-Kasab is mentally unstable or that he has committed these crimes because he was emotionally disturbed. This submission was rejected by us by our reasoned order dated 15/12/2010. That order has assumed finality. In any case, in our short interaction with A1-Kasab on Video Conferencing, we observed his demeanour. He did not appear to be repentant at all. He was perfectly sane. He was in proper frame of mind. All his actions, the manner in which he committed the crime, his cleverly trying to change his stand in the court and other attendant circumstances portray a scheming mind and not a mind of a mentally unstable person. It was argued that A1-Kasab is a Fidayeen, that he had come here to die, that his death will fulfill his desire, that he will become a martyr and that will encourage more people to take his path. We unhesitantly reject this argument. It is important to note that on the GPS, the terrorists had saved the routes from Mumbai to Karachi. There was, therefore, a desire to go back after successfully achieving the despicable target and embark upon similar activities. We are of the confirmed opinion that any misplaced or unwarranted sympathy would be counterproductive. The argument that he will become a martyr and, therefore, death sentence should not be awarded to him does not deter us from confirming death sentence. We want those who are desirous of emulating him to know that Courts do not take a kindly view of such people.
895. There is hardly any scope for a person like A1-Kasab to be rehabilitated or reformed. In any event, in some cases, the harsh penalty of death is necessary to warn those who may want to take similar path. Strong arm of law must deal with A1-Kasab firmly otherwise a wrong signal will be sent that the courts are ineffective in dealing with crimes as serious as this. Soft handling of a crime like this will erode the public confidence in the efficacy of law.
896. We remind ourselves of the observations of the Supreme Court in Dhananjay Chatterjee, which are as under:

"In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment".

897. Thus, the punishment must befit the crime. The punishment must reflect public abhorrence of the crime. The rights of the victims must also be kept in mind. Examined in the light of the settled principles and after drawing the balance sheet, we are of the considered opinion that in this case, the lone mitigating circumstance i.e. young age of A1-Kasab must recede in the background. Even after according maximum weightage to the age factor, we feel that there is no alternative but to confirm the death sentence. This is, indeed, a rarest of rare cases involving uncommon and unprecedented crime for which sentence of life imprisonment is inadequate. We feel that we would never be as confident as we are today in confirming the death sentence. We are of the opinion that the death sentence must be confirmed. In view of this, we hold that learned Sessions Judge is right in not imposing sentences for minor offences. He is right in not awarding separate sentences for the offences covered by Section 34 and Section 109 read with Section 120-B of the IPC.
898. Before we part with the judgment, we must mention that in this terror attack, some brave policemen and one NSG commando have laid down their lives for the people. Some of them were seriously injured while dealing with the terrorists. We will be failing in our duty if we do not acknowledge their sacrifice. We close this judgment by expressing our deepest sense of gratitude to them.
899. Hence, the following order:

ORDER :

(A) The appeal field by A1-Kasab being Criminal Appeal No.738 of 2010 is dismissed.

(B) Death sentence of A1-Kasab is confirmed and Confirmation Case No.2 of 2010 is disposed of accordingly.

(C) The appeal filed by the State of Maharashtra being Criminal Appeal No.606 of 2010 is dismissed