LexMOHAMMED AJMAL MOHAMMAD AMIR KASAB @ ABU MUJAHID versus STATE OF MAHARASHTRA
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[2012] 8 S.C.R. 295 MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ A ABU MUJAHID v. STATE OF MAHARASHTRA (Criminal Appeal Nos. 1899-1900 of 2011 etc.) AUGUST 29, 2012 B [AFTAB ALAM AND CHANDRAMAULI KR. PRASAD, JJ.] PENAL CODE, 1860: c ss. 302, 302 read with s.34 and s.302 read with ss.109, 120-B, 121, 121-A and 122 /PC and s.16 of Unlawful Activities (Prevention) Act, 1967 - 26111 (2008) terrorists' attack on Mumbai at targeted places by appellant (A-1) along with 9 D other terrorists (dead accused), in furtherance of a conspiracy to wage war against Government of India - 166 people killed and 238 injured - Trial court holding the appellant guilty of the offences charged and awarding him five death sentences - Convictions and sentences confirmed by High Court - Held: E On the basis of ocular evidence alone, the appellant personally and jointly with deceased accused-1 (DA-1) is directly responsible for killing 72 persons and causing injuries of various kinds to 130 persons - He was also found guilty along with other dead accused as a co-conspirator - Conviction and sentences awarded by trial court and F confirmed by High Court are affirmed - As regards A-2 and A-3, when the attack on Mumbai took place, they were in custody of U.P. Police in connection with a different terrorist attack - Both the courts have analyzed the prosecution evidence in regard to A-2 and A-3 at great length and have G given very good reasons to hold the prosecution evidence unworthy of reliance with respect to such grave charges against the two accused - Both the courts have rightly 295 H 296 SUPREME COURT REPORTS [2012] 8 S.C.R. A acquitted A-2 and A-3 of all the charges - Unlawful Activities (Prevention) Act, 1967 - s.16. ss. 120-8, 121, 121-A and 302- Criminal conspiracy and conspiracy to wage war against Government of India - 8 Terrorists' attack in furtherance of conspiracy to wage war against Government of India - 10 terrorists dividing themselves in 5 teams of 2 each and attacking at targeted places in Mumbai - Plea that appellant's case should be considered only with respect to the incidents in which he was C personally involved - Held: In view of the incidents at the venues of terrorists' attack and the conspirators across the border being in constant contact with terrorists, it is obvious that all the ten terrorists were bound together and each team was acting in execution of a common conspiracy - In view of the enormous evidence of all possible kinds including the D recoveries made, it is clear that the terrorists' attack on Mumbai was in pursuance of a larger conspiracy of which the appellant was as much part as the 9 dead accused and other wanted accused persons - The attacks at all the targets were integrally connected with each other and the appellant and his E deceased accomplice are as much part of the offences committed at other places as they are responsible for the offences committed by them directly - The most clinching evidence regarding conspiracy comes from recording of intercepted telephone calls between the terrorists and their co- F conspirators and collaborator sitting in a foreign land, which in the light of all facts and circumstances of the case can only be Pakistan - Evidence Act, 1872 - s.10. ss.121, 121-A and 122 - "Waging war against the G Government of India" - Conspiracy -Terrorists' attack on Mumbai - Expressions "offences against the State" and ''in like manner and by like means as a foreign enemy would do" - Connotation of - Held: The expression "Government of India''. as appearing in s.121, must be held to mean the State H or interchangeably the people of the country as the repository MOHAMMED AJMAL MOHAMMAD AMIR KASAB @ABU 297 MUJAHID v. STATE OF MAHARASHTRA of the sovereignty of India which is manifested and expressed A through the elected Government - It does riot matter that the target assigned to the appellant and DA-1 was a public building where they killed a large number of people - What matters is that the attack was aimed at India and Indians - It was by foreign nationals - People were killed for no other s reason than they were Indians - In case of foreigners, they were killed because their killing on Indian soil would embarrass India - The conspiracy, in furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its financial centre; to try to give rise to communal tensions and c create int
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