Identification by Photograph and Evidence in Digital photography

Source: Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra (2013)3SCC(Cri)481

While dealing with the CST episode we must take note of two other witnesses. Their evidence is extraordinary in that they did not only witness the incidents but also made a visual record of the events by taking pictures of the two killers in action and also of their victims. The pictures taken by these two witnesses, without anything else, are sufficient to conclude the issue of identification of Kasab and Abu Ismail (deceased accused no.1) as the killers of CST. Both the witnesses are professional photographers working with the Times of India group. Both of them, caring little for their own safety and displaying exemplary professionalism, followed the killers practically at their heels. Their ocular testimony together with the photographs taken by them provides a graphic picture of the carnage at CST.

122. Sabastian Barnal D’Souza (PW-61) is one of the two photographer witnesses. He stated before the court that on the evening of November 26, 2008, he was in his office on the fourth floor of the Times of India Building, which stands opposite the CST railway station. The main gate of the Times of India Building faces platform no.1 of the local railway station and one gate of CST railway station opens in front of the Times of India Building. At about 9.50 PM he came to know from one of his colleagues that a gunman had entered Taj Hotel and was firing there randomly. On this information, two photographers immediately proceeded to the Taj Hotel. D’Souza and his colleague also came out of the office. As they came out of the main gate of the building, they heard the sound of firing at CST railway station. D’Souza jumped over the road divider and entered platform no.1 of the local railway station, carrying a Nikon digital camera. The railway station was deserted and there were no passengers on the platforms. A local train was standing on platform no.1. He crossed through the train and reached platform no.2. There were no trains on platforms no. 2 and 3. He proceeded to the main hall of the local railway station and walked up to the exit of platform no.6 in the main hall. There he found one policeman in uniform and another person accompanying him in plain clothes. They were looking towards the passage between the main line and the local line. It was at this point that he saw, at a distance of about one hundred (100) feet, in the passage between the main lines and the local lines, two persons who were firing from guns held by them. They were near the booking window of local railway line in front of CST police station while he himself was at the exit of platform no.6 of the local line. At this juncture, one of the policemen[8] fired at the two gunmen.

123. At a nearby book-stall, the owner started to pull down the shutter and, as he was doing so, he was hit by a bullet and fell down. D’Souza took a picture of the fallen book-stall owner.

124. D’Souza then described the two gunmen and the way they were dressed. He identified the appellant in the dock as the shorter of the two gunmen. He added that both were carrying guns.

125. He further said to the court that he wanted to take photographs of the gunmen and, therefore, he entered one of the compartments of the train standing on platform no.6. The policeman in uniform and the other person accompanying him in plain clothes were still there. He thought the man in plain clothes was also a policeman. He saw the plainclothesman[9] taking the gun from the policeman in uniform and taking position to fire at the appellant and his companion. He took pictures of the policeman in uniform and the plainclothesman. He asked the two policemen to enter the train compartment because he thought they had taken a position that was quite dangerous.

126. He further said that since the gunmen were coming towards the local lines, he went to platform no.4. He told the court that during the course of the incident he took over one hundred (100) photographs but most of them were blurred. He was not using the flash-gun and the light was not good for taking photographs. In course of the deposition he was shown the photographs taken by him and he identified those photographs.

127. The photograph showing the book-stall owner felled by a bullet was marked Ext. no. 238. A set of three photographs showing the policeman in uniform and the plainclothesman taking aim with the rifle was marked collectively as Ext. no. 239. A set of three photographs of the appellant taken by D’Souza from behind a pillar was collectively marked Ext. no. 240[10]. A set of four photographs in which Kasab is shown with the other gunman Abu Ismail (deceased accused no.1) was marked collectively as Ext. no. 241. A photograph showing two persons lying dead or injured was marked Ext. no. 242[11]. A set of 10 photographs taken by him after the gunmen had gone over to platform no.1 of the local lines, showing dead or wounded passengers lying in the main hall of the main lines, was collectively marked as Ext. no. 243.

128. He told the court that pictures taken by him were saved in the memory card of his camera. He had prepared a CD of the photographs from the memory card, to produce in court. The print-outs were taken from the CD. He produced the memory card before the court (which the court, after it was marked as Article 216, directed to be returned to the witness for safe custody until further orders).

129. He said that the CD was produced by him before the police on January 7, 2009, in presence of panch witnesses and then it was sealed. The CD was taken out of a sealed packet (bearing no. 204) and was marked by the court as Article 217.

130. Significantly, he also said before the court that while at the station he heard the announcement on the public address system warning passengers of incoming local trains not to alight from the train and, in case they had to go out, not to come to the main hall but to exit through the rear gate.

131. Sriram Ramakant Vernekar (PW-102), the other photographer witness, works as a press photographer with the Times of India. He stated before the court that on November 26, 2008, he was in the office at the Times of India Building, opposite CST railway station. At about 10.00 PM, on hearing the sound of firing, he picked up his camera and rushed towards CST station. He approached the station from the subway gate. He saw two persons firing in the directions of the railway office and booking office. He took pictures of the two gunmen from near the entrance to the main hall from the subway porch. As they were moving in his direction, he got out of the station and, crossing the road divider, came on the side of the Times of India Building.

132. He told the court that he had seen the two gunmen in front of platform no.6 when he took their first photograph. He produced before the court four enlarged print-outs of the photographs taken by him which were collectively marked, for the purpose of identification only, as Ext. no.

410.

133. He also produced the original memory card of his Nikon D200 camera containing more than ten (10) pictures taken by him with that camera. The memory card was marked, for the purpose of identification, as Ext. no. 411. The witness explained that the three photographs bearing Ext. no. 410-A, Ext. no. 410-B and Ext. no. 410-C[12] were the first photographs of the two gunmen taken by him.

He further stated before the court that one of them lobbed a hand grenade while they were proceeding from the main hall to platform no.1. The hand grenade was thrown on DN Road in front of MCGM building. He went on to say that he saw the two gunmen going from platform no.1 to the foot-overbridge. Both of them were carrying bags on their shoulders. He was in front of the Times of India Building at that time. Both of them were firing towards the Times of India Building from the foot-overbridge. They were lobbing hand grenades also. He wanted to take their photographs and, therefore, he went to the second floor of the Times of India Building from where the foot-over bridge is clearly visible. He took about three to four (3-4) photographs from there. Since the quality of photographs was not satisfactory, he took another photograph by using flash. As a result, the shorter man, who was moving in front, got alerted and he fired three to four (3-4) rounds at the Times of India Building. The witness identified the fourth photograph (Ext. no. 410-D[13]) as the photograph taken by him by using flash. He further said that the photograph was taken when the shorter fellow was getting down from the overbridge towards Badruddin Tayabji Road.

Kasab and Abu Ismail along with eight (8) others (the dead accused) were seen landing on the shore of Mumbai on November 26, 2008, between 9.15 and 9.30 PM.

All the witnesses discussed above (except those relating to the Vile Parle and Mazgaon Taxi blasts) had a life and death encounter with the appellant and his associate, Abu Ismail (deceased accused no.1), at close quarters. The physical appearance of the two terrorists was etched on their minds. All the witnesses gave a detailed description of the two terrorists to the court. They described them by their complexion, age, body-built and height, stating that one of them was tall and the other was short. All of them identified the appellant in court as the shorter of the two assailants. They also identified Abu Ismail from the photograph on the fake identity card Article 61. They also stated before the court that they had identified the appellant in the test identification parades held. We accept their testimony without any hesitation.