Yakub Abdul Razak Memon v. State Of Maharashtra Through Cbi, Bombay.

Criminal Appeal No. 1728 of 2007

Yakub Abdul Razak Memon v. State of Maharashtra

P. Sathasivam, J.— This appeal and the connected matters have been directed against the final orders and judgments of conviction and sentence passed on various dates by the Presiding Officer of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short “TADA”) for Bombay Bomb Blast Cases, Greater Bombay in BBC No. 1 of 1993. These appeals have been filed under Section 19 TADA by the accused against their conviction and sentence and by CBI for confirmation of the death sentence and against the acquittal of some of the accused persons.

Brief facts

2. The case of the prosecution is as follows: Babri Masjid at Ayodhya was demolished on 6-12-1992. After its demolition, violence broke out throughout the country. In order to take revenge for the said demolition, Tiger Memon (AA) and Dawood Ibrahim, a resident of Dubai, formulated a conspiracy to commit a terrorist act in the city of Bombay. In pursuance of the said object, Dawood Ibrahim agreed to send arms and ammunition from abroad. Tiger Memon, in association with his men, particularly the accused persons, received those arms and ammunition through the seacoasts of Bombay. In continuation of the said conspiracy, Tiger Memon sent some of the accused persons to Dubai and from there to Pakistan for training and handling in arms and ammunition.

3. On 12-3-1993, the commercial hub of the country, the city of Bombay, witnessed an unprecedented terrorist act sending shock waves throughout the world. In a span of about two hours i.e between 1333 hrs to 1540 hrs, a series of twelve bomb explosions took place one after the other at the following twelve places in Bombay, namely, Bombay Stock Exchange, Katha Bazaar, Sena Bhavan, Century Bazaar, Mahim Causeway, Air India Building, Zaveri Bazaar, Hotel Sea Rock, Plaza Theatre, Juhu Centaur Hotel, Airport Bay-54 and Airport Centaur Hotel. In the abovesaid incident of serial bombings, 257 human lives were lost, 713 persons were seriously injured and properties worth about Rs 27 crores were destroyed. This was the first ever terrorist attack in the world where RDX (Research Department Explosive) was used on a large scale basis after World War II.

4. The aforesaid calculated act of terror was carried out with utter disregard to human life and dignity. The object of the crime was to incite communal violence and to overawe and weaken the Government, disturb social harmony and to break up the social, political and economic order of the country. This overt act of violence not only caused physical and mental damage but also left a psychological impact on society as a whole as the lives of several citizens were completely destroyed.

5. The conspiratorial acts leading to one of the aforesaid object began on or before 6-1-1993 at a meeting in Hotel Persian Darbar, Panvel, wherein the following accused persons viz. Mohd. Ahmed Dossa (AA), Mohd. Salim Mira Moiddin Shaikh alias Salim Kutta (A-134), Mohd. Kasam Lajpuria (A-136), Ranjitkumar Singh Baleshwar Prasad (A-102) and Mohd. Sultan Sayyed (A-90) met and organised the landing of firearms and ammunition and hand grenades which was to take place on the coast of Dighi Jetty in Raigad District of State of Maharashtra on 9-1-1993. On the said date, Mohd. Dossa (AA) smuggled and sent a consignment of arms and ammunition at Dighi Jetty, Raigad in connivance with Mohd. Sultan Sayeed (A-90), who received illegal gratification for the same.

6. The following persons were also involved in the landing at Dighi Jetty, namely, Uttam Shantaram Poddar (A-30), Abdulla Ibrahim Surti (A-66), Ashok Narayan Muneshwar (A-70), Faki Ali Faki Ahmed Subedar (A-74), Janardhan Pandurang Gambas (A-81), Jaywant Keshav Gurav (A-82), Krishna Sadanand Mokal (A-83), Krishna Tukaram Pingle (A-84), Manohar Mahadeo More (A-87), Mohd. Sultan Sayyed (A-90), Pandharinath Madhukar Mahadik (A-99), Ramesh Dattatray Mali (A-101), Ranjitkumar Singh Baleshwar Prasad (A-102), Sayed alias Mujju Ismail Ibrahim Kadri (A-104), Sayed Ismail Sayed Ali Kadri (A-105), Srikrishna Yeshwant Pashilkar (A-110), Somnath Kakaram Thapa (A-112), Sudhanwa Sadashiv Talwadekar (A-113), Vijay Krishnaji Patil (A-116), Jamir Sayyed Ismail Kadri (A-133), Mohd. Salim Mira Moiddin Shaikh alias Salim Kutta (A-134) and Mohd. Kasam Lajpuria (A-136). The said meeting dated 6-1-1993 was not a sudden meeting, but was pre-arranged and pre-planned.

7. On 19-1-1993, another meeting was held at Dubai wherein Dawood alias Dawood Taklya Mohammed Phanse alias Phanasmiyan (A-14), Dawood Ibrahim and Tiger Memon (both absconding) were present and detailed discussions were held whereafter Tiger Memon agreed to arrange for landing of arms and ammunition and explosives which were to be sent to India by sea route for the purpose of committing the aforesaid terrorist act. Pursuant to the above, between 2-2-1993 to 8-2-1993, two more such landings of arms and ammunition, detonators, hand grenades and explosives like RDX took place at Shekhadi Coast under Taluka Shrivardhan in Raigad District through landing agent A-14, Sharif Abdul Gafoor Parkar alias Dadabhai (A-17) (deceased) and Rahim Abbas Karambelkar alias Rahim Laundrywala.

8. In the abovesaid landing, the following persons also played an active role, namely, Mohd. Shoaib Mohammed Kasam Ghansar (A-9), Asgar Yusuf Mukadam (A-10), Abdul Gani Ismail Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12), Dawood alias Dawood Taklya Mohammed Phanse alias Phanasmiyan (A-14), Imtiyaz Yunusmiya Ghavte (A-15), Mohd. Farooq Mohammed Yusuf Pawale (A-16), Sharif Abdul Gafoor Parkar alias Dadabhai (A-17), Suleman Mohammed Kasam Ghavate (A-18), Yeshwant Nago Bhoinkar (A-19), Munna alias Mohd. Ali Khan alias Manojkumar Bhavarlal Gupta (A-24), Muzammil Umar Kadri (A-25), Raju Laxmichand Jain alias Raju Kodi (A-26), Rashid Umar Alware (A-27), Sayyed Abdul Rehman Shaikh (A-28), Shahnawaz Abdul Kadar Qureshi (A-29), Abdul Aziz Haji Gharatkar (A-34), Ashfaq Kasim Havaldar (A-38), Khalil Ahmed Sayed Ali Nasir (A-42), Mohd. Rafiq alias Rafiq Madi Musa Biyariwala (A-46), Sardar Shahwali Khan (A-54), Sarfaraz Dawood Phanse (A-55), Shahjahan Ibrahim Shaikhdare (A-56), Shaikh Ali Shaikh Umar (A-57), Shaikh Mohammed Ethesham Haji Gulam Rasool Shaikh (A-58), Sharif Khan Abbas Adhikar (A-60), Sajjad Alam alias Iqbal Abdul Hakim Nazir (A-61), Tulsiram Dhondu Surve (A-62), Abu Asim Azmi (A-63), Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64), Gulam Hafiz Shaikh alias Baba (A-73), Jaywant Keshave Gurav (A-82), Liyakat Ali Habib Khan (A-85), Mohd. Sultan Sayyed (A-90), Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Ranjitkumar Singh Baleshwar Prasad (A-102), Somnath Kakaram Thapa (A-112), Sudhanwa Sadashiv Talwadekar (A-113), Shahnawaz Khan s/o Faiz Mohammed Khan (A-128), Mujib Sharif Parkar (A-131), Mohd. Shahid Nizamuddin Quresh (A-135) and Eijaz Mohammed Sharif alias Eijaz Pathan alias Sayyed Zakir (A-137).

9. Between February to March 1993, the following persons were sent to Pakistan via Dubai by Tiger Memon (AA) and Dawood Ibrahim (AA) for receiving training in handling of firearms, use of rocket launchers and explosives, in particular, RDX for achieving the common object of the conspiracy, namely, Farooq Mohammed Yusuf Pawale (A-16), Shahnawaz Abdul Kadar Qureshi (A-29), Zakir Hussain Noor Mohammed Shaikh (A-32), Abdul Khan alias Yakub Khan Akhtar Khan (A-36), Firoz alias Akram Amani Malik (A-39), Nasim Ashraf Shaikh Ali Barmare (A-49), Salim Rahim Shaikh (A-52), Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64), Salim Bismilla Khan alias Salim Kurla (dead) (A-65), Faroow Iliyas Motorwala (A-75), Fazal Rehman Abdul Khan (A-76), Gul Mohammed alias Gullu Noor Mohammed Shaikh (A-77), Mohd. Hanif Mohammed Usman Shaikh (A-92), Mohd. Rafiq Usman Shaikh (A-94), Mohd. Sayeed Mohammed Issaq (A-95), Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98), Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Shaikh Ibrahim Shaikh Hussain (A-108), Sayed Ismail Sayed Ali Kadri (A-105) and Usman Man Khan Shaikh (A-115). All the abovesaid accused persons were received at Dubai Airport by Ayub Abdul Razak Memon (AA) and Tahir Mohammed Merchant alias Tahir Taklya [recently deported to India and arrested by CBI in the case being No. RC 1(s) of 1993].

10. Another batch, comprising of the following accused persons, namely, Shaikh Mohammed Ethesham Haji Gulam Rasool Shaikh (A-58), Manzoor Ahmed Mohammed Qureshi (A-88), Shaikh Kasam alias Babulal Ismail Shaikh (A-109), Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul Kader (A-126), Mohd. Iqbal Ibrahim s/o Shaikh Ibrahim (A-127), Shahnawaz Khan s/o Fair Mohammed Khan (A-128), Murad Ibrahim Khan (A-130) and Mohd. Shahid Nizammudin Qureshi (A-135) went to Pakistan for a similar training, however, the said training programme was aborted and they had to return from Dubai.

11. In March 1993, a weapons' training programme was also conducted at Andheri and Borghat at the behest of Tiger Memon (AA). In the said camp, training was imparted by Tiger Memon (AA), Anwar Theba (AA) and Javed Tailor alias Javed Chikna (AA) to the following persons, namely, Abdul Gani Ismail Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12), Bashir Ahmed Usman Gani Khairulla (A-13), Sharif Abdul Gafoor Parkar alias Dadabhai (A-17), Suleman Mohammed Kasam Ghavate (A-18), Mohd. Iqbal Mohammed Yusuf Shaikh (A-23), Munna alias Mohd. Ali Khan alias Manojkumar Bhavarlal Gupta (A-24), Mohd. Moin Faridulla Qureshi (A-43), Sardar Shahwali Khan (A-54), Shaikh Ali Shaikh Umar (A-57), Issaq Mohammed Hajwani (A-79), Shahnawaz alias Shahjahan Dadamiya Hajwani (A-106) and Sikander Issaq Hajwani (A-111). After completing the said training programme, A-17 and A-79 attempted to destroy the evidence by disposing off the hand grenades in Andheri Creek on or about 8-3-1993 to aid and abet the above offenders.

12. On 4-3-1993, Tiger Memon called for a preparatory meeting at Taj Mahal Hotel which was attended by Javed Chikna (AA), Mohd. Mushtaq Moosa Tarani (A-44), Sardar Shahwali Khan (A-54), Shaikh Ali Shaikh Umar (A-57), Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98) and Mohd. Usman Jan Khan (PW 2) (approver). They conducted reconnaissance of some of the targets on 4-3-1993 as well as on 5-3-1993.

13. In order to achieve the said object, vehicles were purchased for planting explosives by Tiger Memon, Mohd. Shafi Zariwala and Munaf Halari (all three absconding). Three scooters were purchased through Munaf Halari (AA) who was a close friend of Tiger Memon (AA). Three Commander jeeps were also purchased through Mohd. Shafi Zariwala (AA) and he also bought two Maruti vans and one Ambassador car. Mohd. Shafi Zariwala arranged all these vehicles through Suleman Mohammed Lakdawala (PW 365). Two Maruti vans of blue and red colour were also purchased through PW 365.

14. On 7-3-1993, another meeting was held at the house of Shafi where Tiger Memon formed separate groups for reconnaissance of the targets. PW 2, A-64 and A-100 were in one group which was assigned the task to survey Shiv Sena Bhawan and Sahar Airport. On 8-3-1993, another meeting was held at the residence of Babloo where Tiger Memon called Javed Chikna, Irfan Chougule, Salim Mujahid, Bashir Khan, Babloo and PW 2 in the flat and selected the following places as targets, namely, Air India Building, Nariman Point, Bharat Petroleum Refinery, Chembur, Share Market near Fountain, Zaveri Bazaar near Mohd. Ali Road and Pydhonie, five star hotels, cinema theatres, Shiv Sena Bhavan, Shivaji Park, Dadar, Bombay Municipal Corporation building, V.T, Sahar Airport, Passport Office, Worli, Mantralaya and others places.

15. Again, on 10-3-1993, a meeting was held at the house of Mobina alias Baya Moosa Bhiwandiwala (A-96) where PW 2 met Tiger Memon, Javed Chikna, Salim Rahim Shaikh (A-52), Bashir Khan, Zakir Hussain Noor Mohammed Shaikh (A-32), Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64), Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Mohd. Moin Faridulla Qureshi (A-43), Mohd. Iqbal Mohammed Yusuf Shaikh (A-23), Sardar Shahwali Khan (A-54), Bashir Ahmed Usman Gani Khairulla (A-13) and Nasim Ashraf Shaikh Ali Barmare (A-49). In the second meeting, Tiger Memon distributed Rs 5000 to each one of them and again formed the groups. PW 2 also told Tiger Memon about the survey of Chembur Refinery. The following persons also participated in the said meeting, namely, Yakub Abdul Razak Memon (A-1), Essa alias Anjum Abdul Razak Memon (A-3), Yusuf Abdul Razak Memon (A-4), Abdul Razak Suleman Memon (dead) (A-5), Hanifa Abdul Razak Memon (A-6), Rahin Yakub Memon (A-7), Rubeena Suleman alias Arif Memon (A-8), Mohd. Shoaib Mohammed Kasam Ghansar (A-9), Asgar Yusuf Mukadam (A-10), Abdul Gani Ismail Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12), Bashir Ahmed Usman Gani Khairulla (A-13), Mohd. Farooq Mohammed Yusuf Pawale (A-16), Mohd. Iqbal Mohammed Yusuf Shaikh (A-23), Shahnawaz Abdul Kadar Qureshi (A-29), Zakir Hussain Noor Mohammed Shaikh (A-32), Firoz alias Akram Amani Malik (A-39), Mohd. Moin Faridulla Qureshi (A-43), Nasim Ashraf Shaikh Ali Barmare (A-49), Sardar Shahwali Khan (A-54), Shaikh Ali Shaikh Umar (A-57), Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64), Mohd. Rafiq Usman Shaikh (A-94), Mobina alias Baya Moosa Bhiwandiwala (A-96), Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98) and Parvez Mohammed Parvez Zulfikar Qureshi (A-100).

16. Another meeting had taken place during the intervening night between 11-3-1993/12-3-1993 at Al-Hussaini Building, Dargah Street, Mahim, in which a final touch to the proposed plan of serial bomb blasts was given. The co-conspirators stored explosives like RDX and firearms in the garages owned by the Memons and their relatives at Al-Hussaini Building and utilised these garages and open places outside the same for making bombs during the said night. The following persons were also present there at that time and had actively participated in the work of filling of RDX in the vehicles and suitcases for the said purpose, namely, A-9, A-10, A-11, A-12, A-13, A-16, A-23, A-32, A-36, A-43, A-49, A-52, A-54, A-57, A-64 and A-100.

17. On 12-3-1993, bombs and other explosive substances were planted at various places by the following persons in the following sequence:

17.1 Firstly, Mohd. Farooq Mohammed Yusuf Pawale (A-16), Mohd. Tainur Phansopkar (AA) and Irfan Chougule planted bomb and caused explosion at Bombay Stock Exchange at 1330 hrs wherein 84 persons were killed and 218 persons were injured;

17.2 Secondly, Parvez Nazir Ahmed Shaikh (A-12) planted bomb and caused explosion at Katha Bazaar at 1415 hrs wherein 4 persons were killed and 21 persons were injured;

17.3 Thirdly, Mohd. Usman Jan Khan (PW 2) and Mohd. Farooq Mohammed Yusuf Pawale (A-16) planted bomb and caused an explosion at Lucky Petrol Pump near Shiv Sena Bhavan wherein 4 persons were killed and 50 persons were injured;

17.4 Fourthly, Abdul Gani Ismail Turk (A-11) planted bomb and caused an explosion at Century Bazaar at 1445 hrs wherein 88 persons were killed and 160 persons were injured;

17.5 Fifthly, Bashir Ahmed Usman Gani Khairulla (A-13), Zakir Hussain Noor Mohammed Shaikh (A-32), Abdul Khan alias Yakub Khan Akhtar Khan (A-36), Firoz alias Akram Amani Malik (A-39), Mohd. Moin Faridulla Qureshi (A-43), Salim Rahim Shaikh (A-52) and Ehsan Mohammed Tufel Mohammed Qureshi (A-122) threw hand grenades and caused explosions at Fisherman Colony, Mahim at 1445 hrs wherein 3 persons were killed and 6 persons were injured;

17.6 Sixthly, Mohd. Farooq Mohammed Yusuf Pawale (A-16), Mohd. Tainur (AA) and Irfan Chougule planted bomb and caused explosion at Air India Building at 1500 hrs wherein 20 persons were killed and 84 persons were injured;

17.7 Seventhly, Mohd. Shoaib Mohammed Kasam Ghansar (A-9) planted bomb and caused explosion at Zaveri Bazaar at 1505 hrs wherein 17 persons were killed and 57 were injured;

17.8 Eighthly, Parvez Nazir Ahmed Shaikh (A-12) planted bomb and caused explosion at Hotel Sea Rock at 1510 hrs;

17.9 Ninthly, Asgar Yusuf Mukadam (A-10) and Shahnawaz Abdul Kadar Qureshi (A-29) planted explosives and caused explosion at 1513 hrs at Plaza Cinema wherein 10 persons were killed and 37 were injured;

17.10 Tenthly, Mohd. Mustaq Moosa Tarani (A-44) planted bomb and caused explosion at Hotel Centaur, Juhu at 1520 hrs which resulted in injury to three persons;

17.11 Eleventhly, Mohd. Iqbal Mohammed Yusuf Sheikh (A-23) and Nasim Ashraf Shaikh Ali Barmare (A-49) planted bomb and caused explosion at Sahar Airport at 1530 hrs and;

17.12 Twelfthly, Anwar Theba (AA) caused explosion at 1540 hrs at Centaur Hotel, Airport wherein 2 persons were killed and 8 persons were injured.

18. In addition to the above, at various other places viz. Naigaum Cross Road, Dhanji Street and Sheikh Memon Street, etc., bombs were planted by accused persons which were defused in time on the basis of information received by the police. Thus, the object behind the said conspiracy was achieved and commercial hub of the country, Bombay was rocked by a series of blasts. Thereafter, a first information report (FIR) was lodged and pursuant thereto several arrests were made. After the arrest of Altaf Ali Mustaq Ali Sayed (A-67), he made a disclosure under Section 27 of the Evidence Act, 1872 and led Mr Anil Prabhakar Mahabole (PW 506), Police Officer and pancha, Suresh Jagaganath Satam (PW 37) to the residence of Mohd. Hanif from where the following articles were recovered and taken into possession vide panchnama, Ext. 109. A suitcase (Article 42) was found containing 65 hand grenades and 100 electronic detonators. In addition, one VIP suitcase (Article 43) was found containing 40 hand grenades and 50 electronic detonators. During the examination, only 85 grenades were found in the two suitcases which were marked as Article 44 (1-84) and one hand grenade which was sent to the Forensic Science Laboratory was marked as Article 45.

19. Further, on 12-3-1993, one maroon-coloured Maruti van was found in an abandoned condition near Siemens Factory, Worli bearing No. MFC 1972. When the police party came to know about the abandoned vehicle, a search was conducted and it was seized by Police Officer, Dinesh P. Kadam (PW 371) in the presence of Narayan Dattaram More (PW 46) vide panchnama, Ext. 190. The seizure included seven AK-56 rifles, a plastic bag and fourteen magazines which were forwarded to FSL. One more plastic bag and four hand grenades were also recovered from the van and were sent to FSL. FSL report, Ext. 2439-A establishes that these hand grenades were capable of causing explosion. During investigation, it was found that in the abovesaid van, the following persons were sitting viz. A-57, Javed Chikna (AA), Bashir Khan and Nasir alias Babloo and were proceeding towards BMC office near V.T for the purpose of killing BJP and Shiv Sena Corporators but they left the vehicle because of the damage caused to the car during the explosion at Century Bazaar.

20. On 26-3-1993, the following items were recovered from Khalil Ahmed Sayed Ali Nasir (A-42), namely, a single 7.62 mm pistol without magazine (Article 87), a single 7.65 mm pistol without magazine having Body No. 352468 made in Czechoslovakia marked as Article 88, four empty magazines, thirteen cartridges, seven cartridges of 7.65 mm pistol, four KF 7.65 mm cartridges, two SBP 7.65 mm cartridges and eight cartridges of 7.62 mm pistol. On 26-3-1993, Investigating Officer (PW 506), in the presence of Lakshan Loka Karkare (PW 45) searched the house of accused Mujammil Umar Kadri (A-25) at Village Mhasla, Taluq Shrivardhan and seized certain articles vide Ext. 158, namely, thirteen AK-56 rifles, twenty-six empty magazines and three gunny bags (Article 86).

21. During the investigation, on 27-3-1993, at the instance of accused Ashrafur Rehman Azimulla Shaikh alias Lallu, Shivaji Shankar Sawant (PW 524) and Abdul Kadar A. Khan (PW 323) prepared the disclosure panchnama, Ext. 439 in the presence of Sayyed Badshah Gaus Mohiuddin (PW 85). In pursuance of the said disclosure panchnama, the police recovered hand grenades, white tubes, detonators tied together and live cartridges.

22. On 2-4-1993, at the instance of Mohd. Yunus Gulam Rasul alias Bota Miya (A-47), Eknath Dattatraya Jadhav (PW 606), in the presence of PW 34, prepared the disclosure panchnama, Ext. 93. In pursuance of the same, the police seized vide seizure panchnama, Ext. 94 dated 2-4-1993, a single 7.62 mm assault short rifle without magazine, .32 bore empty rifle, magazines, rounds of 7.62 mm rifles, goni, rexine bag and six swords from Raziya Manzil near Ram Shyam Theatre, Jogeshwari, West.

23. On 26-4-1993, at the instance of Mohd. Moin Faridulla Qureshi (A-43), Eknath Dattatraya Jadhav (PW 606), in the presence of Krishnanad Jacob Alwin (PW 41), prepared the disclosure panchnama, Ext. 133 and in pursuance of the said disclosure panchnama seized seventeen hand grenades vide seizure panchnama, Ext. 134. The said hand grenades were defused with the help of Bomb Detection and Disposal Squad (BDDS).

24. On 14-4-1993, at the instance of Manoj Kumar Bhawarlal Gupta alias Munna (A-24), Ramrao Mahadev Desai (PW 512), in the presence of Pradeep Atmaram Ire (PW 42), prepared the disclosure panchnama, Ext. 138 and in pursuance of the said disclosure panchnama seized a single .45 pistol with magazine, thirteen rounds of .45 pistol, a single 7.62 mm pistol with magazine, six cartridges, one .38 revolver, nineteen cartridges, one single barrel country-made revolver and four cartridges of .315 bore.

25. On 25-3-1993, at the instance of Parvez Nazir Ahmed Shaikh (A-12), Anil Prabhakar Mahabole (PW 506), in the presence of Padmakar Krishna Bhosle (PW 43), prepared the disclosure panchnama, Ext. 146 and in pursuance of the said disclosure panchnama seized a single Revolver No. A-85525, five cartridges and six more cartridges vide seizure panchnama, Ext. 479. Besides the aforesaid items, one rexine pouch, one revolver case and arms licence and one permit in the name of Tiger Memon were also recovered.

26. On 2-4-1993, at the instance of Ayub Patel (A-72), Eknath Dattatraya Jadhav (PW 606), in the presence of PW 44 prepared the disclosure panchnama, Ext. 154 and in pursuance of the said disclosure panchnama seized thirteen dismantled hand grenades and three more hand grenades vide seizure panchnama, Ext. 155 and marked under various article numbers.

27. On 26-3-1993, PW 506, in the presence of Laksham Loka Karkare (PW 45), searched the house of Sharif Parkar at Andheri, District Raigad and seized two AK-56 rifles, two empty magazines of AK-56 rifle and one gunny bag.

28. On 1-4-1993, at the instance of Ibrahim Mussa Chauhan alias Baba (A-41), Anil Prabhakar Mahabole (PW 506), in the presence of (PW 45), prepared the disclosure panchnama, Ext. 171 and seized a single 7.72 mm assault short rifle without magazine, ten empty rifle magazines, 564 cartridges and twenty hand grenades. In addition, a blue-coloured rexine bag was also recovered.

29. On 18-4-1993, at the instance of Ahmed Birya (A-35), Uttam Khandoji Navghare (PW 545), in the presence of Manohar Balchandra Tandel (PW 56), prepared the disclosure panchnama, Ext. 226 and seized six rifles and twelve black-coloured magazines.

30. On 13-4-1993, at the instance of Salim Rahim Shaikh (A-52), Shivaji Tukaram Kolekar (PW 526), in the presence of Sakharam Kishan (PW 35), prepared the disclosure panchnama, Ext. 101 and seized one pistol of black colour and 48 intact 7.62 mm cartridges.

31. On 4-4-1993, at the instance of Ehsan Mohammed Tufel Mohammed Qureshi (A-122), Prakash Dhanaji Khanvelkar (PW 513), in the presence of Rohitkumar Ramsaran Chaurasia (PW 39), prepared the disclosure panchnama, Ext. 119 and seized one 7.62 mm pistol with magazine and fourteen intact and two test fired cartridges.

32. On 10-4-1993, at the instance of Nasim Ashraf Shaikh Ali Barmare (A-49), Srirang Vyas Nadgauda (PW 597), in the presence of Ranjeet Kumar Surender Nath Das (PW 38), prepared the disclosure panchnama, Ext. 115 and seized a five chambered country-made revolver.

33. On 8-4-1993, at the instance of Asif Yusuf Shaikh (A-107), Ratan Singh Kalu Rathod (PW 600), in the presence of Chandrakant Atmaram Vaidya (PW 40), prepared the disclosure panchnama, Ext. 126 and seized a single 3.62 mm pistol with magazine as well as 32 cartridges. On 5-4-1993, at the instance of Shaikh Aziz (A-21), Vijay D. Meru (PW 561), in the presence of Bhaskar Baburao Jadhav (PW 57), had prepared the disclosure panchnama, Ext. 245 and seized a single .30 US carbine, twenty-eight cartridges and three magazines.

34. On 17-4-1993, at the instance of Ahmed Shah Durani (A-20), Shivaji Shankar Sawant (PW 524), in the presence of Mohd. Ayub Mohammed Umer (PW 72), prepared the disclosure panchnama, Ext. 378 and in pursuance of the said panchnama seized one AK-56 rifle and two magazines. On 9-4-1993, at the instance of Mohd. Dawood Mohammed Yusuf Khan (A-91), PW 522, in the presence of Ashok Kumar Hari Vilas Pande (PW 59), had prepared the disclosure panchnama, Ext. 265 and seized nine empty black-coloured magazines and three AK-56 guns.

35. On 22-3-1993, at the instance of Mohd. Shoaib Mohammed Kasam Ghansar (A-9), PW 615, in the presence of Dinesh Dharma Sarvan (PW 53), prepared the disclosure panchnama, Ext. 216 and seized one folded blackened cardboard, one folded cardbox explosive, Packer Package Ltd. Lahore and one number plate bearing No. MP 13 D 0380.

36. On 12-3-1993, after the blast, one Maruti van bearing No. MFC 1972 was found abandoned. During the course of search, xerox copies of registration papers of the said vehicle in the name of Rubina Suleman alias Arif Memon (A-8) were found which led the police party to Flats Nos. 22, 25 and 26 of Memons' at Al-Hussaini Building. As the involvement of Memons' had come to light in the incidents, the said flats were searched by the Police Officer, namely, Dinesh P. Kadam (PW 371), in the presence of Uday Narayan Vasaikar (PW 67) and vide seizure panchnama, Ext. 337, the police party seized the passport of Shabana Memon, five key bunches, two keys 449, rubber slipper of right foot, brown leather chappal of right foot, pista-coloured chappal, carpet pieces, rubber slipper and a pink piece of scrap.

37. On 1-5-1993, at the instance of Yusuf Nulwalla (A-118), Suresh S. Walishetty (PW 680), in the presence of Gangaram B. Sawant (PW 265), prepared the disclosure panchnama, Ext. 1100 and seized one plastic bag of Metro Co. and 57 intact bullets.

38. During the investigation, the following items were recovered from the compound of Al-Hussaini Building in the presence of Leoneison D'Souza (PW 52), namely, 31 gunny cloth pieces, 25 black cardboard pieces and 34 blackened polythene papers.

39. Sanjay Dutt (A-117) received three AK-56 rifles and ammunition from accused Abu Salem, who visited his residence along with A-53 and A-41. After sometime, he returned two AK-56 rifles to the co-accused and kept one with him. He also purchased one 9 mm pistol from one Qayoom, a close associate of Dawood. When the news of his involvement came to light, he telephoned A-118 to destroy the AK-56 rifle and the pistol. During the course of investigation, A-117 made a disclosure statement, Ext. 1068 which was recorded as Ext. 1068-A. He led the police party to A-118. A-118 made a disclosure statement which was recorded as Ext. 1068-B and led the police party to Kersi Adajania (A-124). A-124 made a disclosure statement which is Ext. 1068-C and from him one iron rod and one iron spring were recovered. Thereafter, A-124 led the police party to A-125. A-125 made a disclosure which was recorded in panchnama, Ext. 1068-D and led the police party to A-120 who produced one pistol which is Article 384-D which came to be recovered vide Ext. 1068-E drawn by Suresh S. Walishetty (PW 680) in the presence of Shashikant R.S (PW 211).

40. On 18-4-1993, at the instance of Noor Mohammed (A-50), Prakash Dhanaji Khanvelkar (PW 513), in the presence of PW 33, prepared the disclosure panchnama, Ext. 88 and seized one olive green bag, one khaki bag and a blackish lamp. During the course of investigation, Shankar Sadashiv Kamble (PW 503), in the presence of PW 55, recovered one rifle from the residence of Abdul Rashid Khan (AA) at Dreamland Cooperative Society, Marol, Bombay.

41. On 7-4-1993, at the instance of Faki Ali Faki Ahmed Subedar (A-74), PW 588, in the presence of PW 88, recovered 12 AK-56 rifles, 36 magazines and cartridges.

42. At the instance of Janu Kamlya Vetkoli, PW 588, in the presence of PW 89, recovered six military-coloured bags containing 9000 rounds and three wooden boxes containing 44 magazines vide panchnama, Ext. 503. In the court, the said articles were marked as below:

(i) 750 cartridges marked as Article 296-B;

(ii) 6000 cartridges marked as Articles 297(A-i) to (A-viii);

(iii) 549 cartridges marked as Article 297[A-ix(b)];

(iv) 750 cartridges marked as Article 297[A-x(b)]; and

(v) 850 cartridges marked as Article No. 294-D (colly).

43. On 25-5-1993, PW 670 forwarded twelve AK-56 rifles, eighty magazines and 100 cartridges with forwarding letter vide Ext. 2471 to the chemical analyser.

44. At the instance of Sayeed alias Mujju Ismail Ibrahim Kadri (A-104), PW 573, in the presence of PW 91, recovered five plastic jars containing explosives and detonators from the lavatory in the courtyard of the accused.

45. The accused persons had undertaken firing practice at Chinchechamal, District Raigad. Nandev P. Mahajan (PW 587), in the presence of PW 103, seized certain articles, namely, three broken branches, pieces of cardboard, three empties, six lead pieces and pieces of stones. Out of the aforesaid articles, the following articles were sent to FSL vide Ext. 2112 i.e three empties, six lead shots, three tree branches and pieces of target, stones, cardboard and twelve empties recovered on 1-4-1993, 2-4-1993 and 3-4-1993.

46. At the instance of Issaq Mohammed Hajwani (A-79), PW 587, in the presence of PW 104, recovered 13 hand grenades and 79 empties from Andheri Jetty. The articles were marked in the court as per the details given below:

(i) 12 empties Article 307(v) (colly) (ii) 67 empties Article 308-B (colly) (iii) One hand grenade Article 309-A(i) (iv) White, yellow and green explosive powder and a cap which was removed from the hand grenade. (v) PW 598 defused the hand grenades at Goregaon P.S and issued the defusal certificate. The carbon copy of the defusal certificate is marked as Ext. 2055. (vi) 12 defused hand grenades Article 310-B (colly); (vii) On 21-6-1993, Shashinath Raghunath Chavan (PW 676) sent a letter, Ext. 2517 to FSL along with 67 empties for opinion. (viii) CA Report dated 5-8-1993 vide M.L Case No. BL 643 of 1993, 447 of 1993, 385 of 1993 and 568 of 1993 through MA No. 382 of 2000 dated 17-10-2000.

47. During the course of investigation, Shashikant Eknath Shinde (PW 519), in the presence of Dilip Manekrao Dawalekar (PW 65), recovered 57 gunny bags filled with RDX and gelatine from Nangla Creek on 2-4-1993. Out of 57 bags, 37 were found to be loaded with RDX and the remaining 20 bags to be loaded with gelatine. A-50, A-24, A-59, A-69 and A-121 having admitted dumping of the said bags in Nangla Creek in their confessional statements.

48. Thereafter, 27 criminal cases were registered in relation to the said incidents at various police stations in Bombay City, District Thane and District Raigarh. Upon completion of the investigation, a single charge-sheet was filed against 189 accused persons including 44 absconding accused persons on 4-11-1993. Subsequently, further investigation of the case was transferred to the respondent, CBI who filed 19 supplementary charge-sheets under Section 173(8) of the Code of Criminal Procedure, 1973 (in short “the Code”) and the trial of 123 accused persons was concluded on 23-11-2003.

49. In order to enquire into the matter and render speedy justice, a Special Judge (TADA) was nominated and recording of evidence started in 1995 and the said process was concluded in the year 2002. A total of 687 witnesses were examined and the Special Court pronounced the judgment on 12-9-2006/27-7-2007 awarding death sentence to 11 persons and life sentence and other sentences for the offences under TADA, the Penal Code, 1860 (in short “IPC”), the Arms Act, 1959 and the Explosives Act, 1884. By way of the impugned judgment, the trial court has convicted 100 persons and acquitted 23 persons of all the charges. The judgment under consideration pertains to the trial of 123 accused persons involved in the said blasts. In cases of death sentence, the Special Judge referred the matter to this Court for confirmation. In total, 51 appeals have been filed by the accused against their conviction ranging from various sentences up to life imprisonment. Against the order of acquittal, the State of Maharashtra through CBI has filed 48 appeals.

Yakub Abdul Razak Memon (A-1)

50. At the first instance, let us consider the charges, materials placed by the prosecution, defence and details regarding conviction and sentence insofar as A-1 is concerned.

Charges

51. The following charges were framed against A-1, namely:

“… During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit the following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 TADA Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), 4(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

52. In addition to the abovesaid principal charge of conspiracy, the appellant A-1 was also charged on the following counts:

“At head secondly, for commission of the offence under Section 3(3) of TADA Act, for in pursuance to the conspiracy in India, Dubai and Pakistan, during the period between December 1992 and April 1993, having conspired, advocated, abetted, advised and knowingly facilitated the commission of terrorist acts and acts preparatory to terrorist acts i.e serial bomb blasts in Bombay and its suburbs on 12-3-1993 by:

(i) arranging finance and managing the disbursement by generating the same through Mulchand Shah Choksi (A-97) and from the firm M/s Tejarat International owned by Ayub Memon (AA) for achieving the objective of conspiracy to commit the terrorist act;

(ii) arranging air tickets through Altaf Ali Mushtaq Ali Sayyed (A-67), East West Travels and others to enable the co-conspirators and accused in the case to undergo weapons' training in Pakistan and for having made arrangement for their lodging and boarding;

(iii) purchasing motor vehicles for the purpose of preparing them for being used as bombs and for planting them at important locations in furtherance of the objective of conspiracy to commit terrorist act; and

(iv) requesting the discharged Amjad Ali Meharbux and A-67 to store suitcases containing arms and ammunition, hand grenades which were part of consignment smuggled into India by the absconding accused Tiger Memon and other co-conspirators.

At head thirdly, for commission of the offence under Section 5 of TADA Act, on the count of unauthorisedly, within the notified area of Greater Bombay, from 3-2-1993 onwards, by being in possession of hand grenades, detonators which were the part of the consignment of arms, ammunition and explosives smuggled into the country by Tiger Memon and his associates for committing the terrorist acts.

At head fourthly, for commission of the offence under Section 6 of TADA Act, on the count of unauthorisedly, within the area of Greater Bombay, with an intent to aid terrorists, from 3-2-1993 onwards, being in possession of hand grenades, detonators which were the part of the consignment of arms, ammunition and explosives smuggled into the country by Tiger Memon and his associates for committing the terrorist act and thereby having contravened the provisions of the Arms Act, 1959, the Explosives Act, 1884, the Explosive Substances Act, 1908 and the Explosives Rules, 2008 by keeping the same in his possession and by transporting and distributing the same to different persons.

At head fifthly, for commission of the offences under Sections 3 and 4 read with Section 6 of the Explosive Substances Act on the count of, from 3-2-1993 onwards, providing premises, having procured, concealed, aided and abetted Tiger Memon and his associates for smuggling arms, ammunition and explosives into the country for commission of terrorist acts and also by having in his possession and control explosive substances like hand grenades and detonators with an intent, and by means thereof, to endanger the lives and for causing serious damage to property in India and to enable his co-conspirators to do such acts.”

53. The appellant (A-1) has been convicted and sentenced for the abovesaid charges as follows:

53.1 The appellant, A-1 has been convicted and sentenced to death under Section 3(3) TADA and Section 120-B IPC read with the offences mentioned in the said charge. In addition, the appellant was ordered to pay a fine of Rs 25,000. (charge firstly)

53.2 The appellant (A-1) was sentenced to rigorous imprisonment for life along with a fine of Rs 1,00,000, in default, to further undergo rigorous imprisonment for two years under Section 3(3) TADA. (charge secondly)

53.3 The appellant was sentenced to rigorous imprisonment for ten years along with a fine of Rs 1,00,000, in default, to further undergo rigorous imprisonment for two years under Section 5 TADA. (charge thirdly)

53.4 The appellant was sentenced to rigorous imprisonment for fourteen years along with a fine of Rs 1,00,000, in default, to further undergo rigorous imprisonment for two years under Section 6 TADA. (charge fourthly)

53.5 The appellant was sentenced to rigorous imprisonment for ten years with a fine of Rs 50,000, in default, to further undergo rigorous imprisonment for one year under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fifthly)

54. Heard Mr Jaspal Singh, learned Senior Counsel for the appellant and Mr Gopal Subramanium, learned Senior Counsel duly assisted by Mr Mukul Gupta, learned Senior Counsel and Mr Satyakam, learned counsel for the respondent CBI.

Contentions raised by A-1

55. Mr Jaspal Singh, learned Senior Counsel, after taking us through the charges framed against A-1, prosecution witnesses, documents and all other materials raised the following contentions:

55.1 The impugned judgment is not a “judgment” in terms of Sections 353, 354, 362 and 363 of the Code since reasons for conviction and sentence were not provided to the appellant (A-1) along with the order of conviction and sentence dated 12-9-2006 and 27-7-2007 respectively. Inasmuch as only the “operative portion” was read out and after hearing the accused the conviction and sentence was imposed, it is not permissible in law. He further pointed out that as per the “operative portion”, A-1 was convicted and sentenced to death, rigorous imprisonment along with fine for commission of the offences mentioned in charges at head firstly to fifthly. In the absence of the entire judgment in terms of the abovementioned provisions, the conviction and sentence imposed on A-1 cannot be sustained.

55.2 The prosecution mainly relied on the evidence of Mohd. Usman Jan Khan (PW 2), who turned approver. According to the learned Senior Counsel, there is no provision for pardoning an accused and permitting him to become an approver under TADA. He further pointed out that neither under TADA nor under the Code it can be said that PW 2 has been validly pardoned. In any event, according to him, his statement needs to be corroborated and conviction based on his sole testimony cannot be sustained.

55.3 The Special Judge heavily relied on the confessional statements of A-10, A-11, A-46, A-67 and A-97. Among them, except A-97 others have retracted their statements. Since the prosecution case rests entirely upon the confessional statements of those accused persons, in view of their retraction statements, the conviction and sentence cannot be sustained.

55.4 Several recoveries were made by the prosecution on the statement of Mohd. Hanif (PW 282) and in the absence of strict adherence to the procedure, those recoveries are inadmissible in evidence. He further pointed out that seizure panchnamas were not in accordance with the procedure and, more particularly, Section 27 of the Evidence Act, 1872.

55.5 All the confessional statements are exculpatory and not inculpatory. In view of the same, the entire statements made are not acceptable.

55.6 There is no material to prove that there was a conspiracy among the accused persons pursuant to the demolition of Babri Masjid.

55.7 In any event, the prosecution failed to pin point the specific role of A-1. A-1 had no knowledge of the conspiracy and of the ultimate bomb blasts on 12-3-1993. Even the confessional statements cannot be used against A-1 since the same were recorded before the amendment of Section 3(5) TADA. Considering the entire evidence against him, the prosecution failed to point out any specific role, accordingly, the death sentence is not warranted and other sentences are also liable to be set aside.

Reply by CBI

56. Mr Gopal Subramanium, learned Senior Counsel for CBI duly assisted by Mr Mukul Gupta, learned Senior Counsel and Mr Satyakam, learned counsel met all the points raised by Mr Jaspal Singh. He pointed out the following evidence against the appellant (A-1), namely,

(i) confessional statements made by co-accused;

(ii) testimonies of prosecution witnesses; and

(iii) documentary evidence.

57. According to Mr Subramanium, it is incorrect to state that conviction was based solely on the evidence of the approver (PW 2). He pointed out that the prosecution has placed enough materials to substantiate “conspiracy” and the ultimate role played by each one of the accused persons, particularly A-1, in the commission of the offence. He further pointed out that all the confessions made by the accused, namely, A-10, A-11, A-46, A-67 and A-97 are admissible, and on the other hand, their alleged retractions cannot be accepted. He further pointed out that apart from the confession of those accused, the prosecution has established several incriminating materials connecting all the accused in the commission of offence. He pointed out various recoveries made against the accused which clearly show the seriousness of the matter. Amongst all the accused persons, A-1, brother of Tiger Memon, was in charge of the entire financial management, sending persons to Pakistan via Dubai for training in arms and ammunition, securing air tickets and travel documents such as passports, visas, etc. He further pointed out that there was no flaw in the procedure adopted by the Special Court in delivering the judgment. There is no merit in the appeal filed by A-1 and prayed for confirmation of the death sentence.

58. We have carefully considered the entire materials, oral and documentary evidence and the submissions made by either side.

Validity of the impugned judgment by the Special Court

59. Among various points raised, since the argument relating to the impugned judgment is paramount, we intend to take up the said issue at the foremost. Mr Jaspal Singh, learned Senior Counsel for A-1, took us through the impugned judgment which contains two parts. According to him, in the absence of the whole judgment for perusal of the accused, the sentence imposed cannot be sustained. In support of the above claim, he relied on Sections 353, 354, 362 and 363 of the Code. He further pointed out that only the “operative portion” was read out and after hearing the accused, conviction and sentence was imposed. As per the operative portion, A-1 was convicted under Sections 3(3), 5 and 6 TADA read with Section 120-B IPC and Sections 3, 4 and 6 of the Explosive Substances Act, 1984. He further pointed out that after convicting and sentencing A-1, the Presiding Officer stated that the reasons will be given within two months which shows that, admittedly, the judgment was not ready on the date of the pronouncement.

60. In view of the above, it is desirable to go through the relevant provisions of TADA. TADA contains: (a) judgment; and (b) orders, admittedly, it is not defined anywhere that what is meant by judgment/order. It is the claim of the learned Senior Counsel for the appellant that if it is not a complete judgment, the accused cannot be convicted and sentenced. In the absence of specific provision in TADA with regard to the same, we have to look into the relevant provisions of the Code.

61. Chapter 27 of the Code speaks about “judgment”. The relevant provisions are Sections 353, 354, 362 and 363 which are as under:

“353. Judgment.—(1) The judgment in every trial in any criminal court of original jurisdiction shall be pronounced in open court by the Presiding Officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders—

(a) by delivering the whole of the judgment; or

(b) by reading out the whole of the judgment; or

(c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.

(2) Where the judgment is delivered under clause (a) of sub-section (1), the Presiding Officer shall cause it to be taken down in short-hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open court.

(3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub-section (1), as the case may be, it shall be dated and signed by the Presiding Officer in open court, and if it is not written with his own hand, every page of the judgment shall be signed by him.

(4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost.

(5) If the accused is in custody, he shall be brought up to hear the judgment pronounced.

(6) If the accused is not in custody, he shall be required by the court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted:

Provided that, where there are more accused than one, and one or more of them do not attend the court on the date on which the judgment is to be pronounced, the Presiding Officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.

(7) No judgment delivered by any criminal court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place.

(8) Nothing in this section shall be construed to limit in any way the extent of the provisions of Section 465.

354. Language and contents of judgment.—(1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353—

(a) shall be written in the language of the court;

(b) shall contain the point or points for determination, the decision thereon and the reasons for the decision;

(c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced;

(d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty.

(2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under which of the two sections, or under which of the two parts of the same section, of that Code the offence falls, the court shall distinctly express the same, and pass judgment in the alternative.

(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.

(4) When the conviction is for an offence punishable with imprisonment for a term of one year of more, but the court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the court or unless the case was tried summarily under the provisions of this Code.

(5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.

(6) Every order under Section 117 or sub-section (2) of Section 138 and every final order made under Section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision.

***

362. Court not to alter judgment.— Save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall after or review the same except to correct a clerical or arithmetical error.

363. Copy of judgment to be given to the accused and other persons.—(1) When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost.

(2) On the application of the accused, a certified copy of the judgment, or when he so desires, a translation in his own language if practicable or in the language of the court, shall be given to him without delay, and such copy shall, in every case where the judgment is appealable by the accused, be given free of cost:

Provided that where a sentence of death is passed or confirmed by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applies for the same.

(3) The provisions of sub-section (2) shall apply in relation to an order under Section 117 as they apply in relation to a judgment which is appealable by the accused.

(4) When the accused is sentenced to death by any court and an appeal lies from such judgment as of right, the court shall inform him of the period within which, if he wishes to appeal, his appeal should be preferred.

(5) Save as otherwise provided in sub-section (2), any person affected by a judgment or order passed by a criminal court shall, on an application made in this behalf and on payment of the prescribed charges, be given a copy of such judgment or order of any deposition or other part of the record:

Provided that the court may, if it thinks fit for some special reason, give it to him free of cost.

(6) The High Court may, by rules, provide for the grant of copies of any judgment or order of a criminal court to any person who is not affected by a judgment or order, on payment, by such person, of such fees, and subject to such conditions, as the High Court may, by such rules, provide.”

62. By drawing our attention to Sections 353(1)(a), 1(b), 1(c), it is contended by the learned Senior Counsel for the appellant that it is incumbent on the part of the trial Judge to provide the whole judgment. In the absence of reasoning and the discussion in the form of full judgment, it is contended that the conviction and sentence under various provisions are not permissible. He also pointed out that in case of death sentence, special reasons have to be assigned. According to Mr Jaspal Singh, in terms of Section 353 of the Code, the judgment means the whole judgment signed by the Judge. He elaborated that when the Code permits the court to hear the accused on sentence, he must be provided with the whole judgment including the reasons. According to him, though A-1 was awarded death sentence, no special reasons were assigned by the Designated Court and he was not even furnished the whole judgment. By highlighting various aspects on the issue, in view of the fact that the judgment pronounced is not a “full judgment” in terms of the abovesaid provisions, Mr Jaspal Singh prayed for remand to the Special Court to go through all the reasoning and hear afresh on the question of sentence.

63. Though Mr Gopal Subramanium met all the submissions relating to the alleged defect in the impugned judgment, first let us consider the decisions relied on by Mr Jaspal Singh in support of the above proposition.

64. In Shambhu v. State AIR 1956 All 633, learned Single Judge of the High Court with regard to the words “judgment” and “order” has held as under: (AIR p. 634, para 4)

“4. The argument sounds plausible; nevertheless I have no hesitation in holding it to be untenable. A study of the provisions of the Code of Criminal Procedure discloses that the expression of the opinion of the criminal court on any matter at issue arrived at after due consideration of the evidence and of the arguments (if any) falls into two categories: judgments and orders. Nonetheless neither of these terms has been defined either in the Code of Criminal Procedure or the Penal Code.

There is, however, no controversy as to what a ‘judgment’ is. As held by the Federal Court in Hori Ram Singh v. Crown Hori Ram Singh v. Crown, 1939 1 FCR 159 and S. Kuppuswami Rao v. R. 1947 9 FCR 180, it is used ‘to indicate the termination of the case by an order of conviction or acquittal of the accused’, and to this, by virtue of Section 367(6) CrPC must be added orders under Section 118 or Section 123(3), orders which bear the character of a conviction. Chapter XXVI of the Code deals exclusively with judgments and on the basis of its exhaustive provisions there can be no difficulty in recognising a criminal court's ‘judgment’.”

65. In Baldeo v. Deo Narain AIR 1954 All 104, there was discussion about how the judgment should to be in terms of the provisions of the Code. The relevant para is as under: (AIR p. 106, para 14)

“14. … Under Section 367 CrPC every judgment must contain:

(1) the points for determination;

(2) the decision thereon; and

(3) the reasons for such decision.

Where the reasons given by the trial court are such as cannot be supported by the evidence on record, they are not reasons for the decision, but reasons against the decision. To constitute a legal appreciation of evidence, the judgment should be such as to indicate that the Court has applied its mind to it. Every portion of the judgment of the trial court seems to indicate non-application of mind by the Court to the evidence on record. The third requirement laid down in Section 367 CrPC viz. the reasons for the decision, is an important ingredient of a judgment. Compliance with law in this regard should not be merely formal but substantial and real, for it is this part of the judgment alone which enables the higher court to appreciate the correctness of the decision, the parties to feel that the Court has fully and impartially considered their respective cases and the public to realise that a genuine and sincere attempt has been made to mete out even-handed justice. It is in the way the Court discharges its duty in this regard that it is able to instil confidence in its justice and to inspire that respect and reverence in the public mind which is its due. Reasons form the substratum of the decision and their factual accuracy is a guarantee that the Court has applied its mind to the evidence in the case. Where the statement of reasons turn out to be a mere hollow pretension of a baseless claim of application of mind by the Court, the judgment is robbed of one of its most essential ingredients and forfeits its claim to be termed a judgment in the eye of the law.”

66. In Surendra Singh v. State of U.P AIR 1954 SC 194, this Court has interpreted the word “judgment”. The following conclusion is relevant which reads as under: (AIR pp. 196-97, paras 10-11 & 14)

“10. In our opinion, a judgment within the meaning of these sections is the final decision of the court intimated to the parties and to the world at large by formal ‘pronouncement’ or ‘delivery’ in open court. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there: that can neither be blurred nor left to inference and conjecture nor can it be vague. All the rest—the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the sealing, all the rules designed to secure certainty about its content and matter—can be cured; but not the hard core, namely, the formal intimation of the decision and its contents formally declared in a judicial way in open court. The exact way in which this is done does not matter. In some courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.

11. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the court as it is at the time of pronouncement. We lay no stress on the mode of manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open court. But however it is done it must be an expression of the mind of the court at the time of delivery. We say this because that is the first judicial act touching the judgment which the court performs after the hearing. Everything else up till then is done out of court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the ‘judgment’.

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14. As soon as the judgment is delivered, that becomes the operative pronouncement of the court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.”

67. In Ratia Mohan v. State of Gujarat AIR 1969 Guj 320, the following paragraph is pressed into service: (AIR pp. 323-24, para 9)

“9. In this connection, I was referred to a decision in Athipalayan, In re7, wherein it was held that the irregularity even in pronouncing the judgment in open court and signing and dating the same would amount to an illegality vitiating the conviction and sentence passed in the case. While saying so, it has been observed thus: (AIR p. 508, para 4)

‘4. … it is one of the glorious principles of our criminal jurisprudence that we do not try or sentence people in absentia and we do not also convict and sentence people without judgments being pronounced in open court and signed and dated then and there. It may be different in the continental system of criminal jurisprudence.’

It was a case in which a sentence was announced before the judgment, which was the final decision of the court intimated to the parties and the world at large by formal pronouncement of delivery in open court by the trial Judge and signing and dating it simultaneously and thereby terminating the criminal proceedings finally. In Nathusing Vridhsingh v. Vasantlal R. Shah AIR 1968 Guj 210, the question arose whether the order of dismissal of a complaint under Section 203 of the Criminal Procedure Code without recording any reasons amounts to an irregularity or illegality curable under Section 537 of the Criminal Procedure Code and it was held that the order was one in contravention of that provision and such a breach of the provision renders the order void and ineffective. It was not curable under Section 537 of the Criminal Procedure Code. Some observations made by the Supreme Court in Willie (William) Slaney v. State of M.P AIR 1956 SC 116, were quoted to say that ‘the complainant is entitled to know why his complaint has been dismissed with a view to consider an approach to a revisional Court. Being kept in ignorance of the reasons clearly prejudices his right to move the Revisional Court and where he takes a matter to the Revisional Court renders his task before that Court difficult, particularly in view of the limited scope of the provisions of Sections 438 and 439 of the Code of Criminal Procedure’. Those observations may well apply in the present case particularly when the accused has a right of appeal against the order of conviction and sentence passed in the case and he would obviously be at a disadvantage to assail the reasons which were in the mind of the learned Magistrate and which came out so late as on 6-2-1968. The appellant-accused had a right to know the reasons which led the learned Magistrate to come to that conclusion. It may well happen that after coming to know about the accused going in appeal, the learned Magistrate may try to record a proper judgment which otherwise he may later on do in some other manner. In any event, the learned Magistrate has clearly contravened the imperative provisions contained in Section 264 of the Criminal Procedure Code by passing the sentence without recording the judgment in the case and has that way acted illegally. Such an illegality cannot be treated as an irregularity contemplated under Section 537 or an omission as urged by Mr Nanavati so as to become curable one. Even if it were to be treated as such as coming within the ambit of Section 537, it can easily be said that it had occasioned failure of justice in the circumstances of the case. In any view of the matter, the order is, therefore, liable to be set aside.”

68. The other decision relied on is State of Orissa v. Ram Chander Agarwala 1979 2 SCC 305. We have gone through the factual position and the ratio laid down therein. Inasmuch as it is only a general observation, the same is not helpful to the case on hand.

69. Another decision relied on is Jhari Lal v. Emperor AIR 1930 Pat 148. While considering Sections 367 and 369 of the Code, the Court held that pronouncing sentence before completing the judgment, that is to say, before preparing the essential part of it, such as the statement of points for determination and the reasons for the decision makes the sentence illegal and vitiates conviction.

70. In State of Punjab v. Jagdev Singh Talwandi 1984 1 SCC 596, while considering how the final order/judgment is to be pronounced, this Court pointed out as under:

“30. We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.”

71. The next decision relied on is Krishna Swami v. Union of India AIR 1993 SC 1407, which is a Constitution Bench decision. We have gone through the factual position and the ratio laid down therein. According to us, the said decision is neither helpful nor applicable to the case on hand.

72. The other decision relied on by Mr Jaspal Singh is reported in K.V Rami Reddi v. Prema 2009 17 SCC 308, which arose out of a civil proceeding. It is not in dispute that Section 2(9) of the Civil Procedure Code, 1908 defines “judgment”. Order 20 Rules 1(1) and (2) of the Civil Procedure Code (Madras amendment) refer to “judgment when pronounced” and “judgment to be signed”. In para 9, this Court has held as under:

“9. Order 20 Rule 5 on which great emphasis was laid by the learned counsel for the appellant says that in suits in which issues have been framed, the court shall state its finding or decision with the reason therefore, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.”

In the light of the definition clause, namely, “judgment” though the same has not been explained in the Code, the procedure to be followed both in the civil and criminal cases are all acceptable.

73. By pointing out that when the judgment does not contain the material case of the prosecution, defence and discussion on conclusion, according to the learned Senior Counsel, it not only vitiates the principles of natural justice but also infringes the right under Article 21 of the Constitution. He heavily relied on a Constitution Bench decision of this Court reported in Sarojini Ramaswami v. Union of India 1992 4 SCC 506. In para 142, the Constitution Bench has held as under:

“142. … It is now settled law that the principles of natural justice are an integral part of constitutional scheme of just and fair procedure envisaged under Article 14 of the Constitution.”

74. In M. Nagaraj v. Union of India 2006 8 SCC 212 which is also a decision of a Constitution Bench, the following conclusion is pressed into service:

“20. … Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that ‘procedure established by law’ means any procedure established by law made by Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K Gopalan17 and held in its landmark judgment in Maneka Gandhi v. Union of India 1978 1 SCC 248 that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression ‘life’ in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part III on the principle that certain unarticulated rights are implicit in the enumerated guarantees. For example, freedom of information has been held to be implicit in the guarantee of freedom of speech and expression. In India, till recently, there was no legislation securing freedom of information. However, this Court by a liberal interpretation deduced the right to know and right to access information on the reasoning that the concept of an open Government is the direct result from the right to know which is implicit in the right of free speech and expression guaranteed under Article 19(1)(a).”

75. In Confederation of Ex-Servicemen Associations v. Union of India 2006 8 SCC 399 which is also a Constitution Bench judgment, this Court held as under:

“61. It cannot be gainsaid that the right to life guaranteed under Article 21 of the Constitution embraces within its sweep not only physical existence but the quality of life. If any statutory provision runs counter to such a right, it must be held unconstitutional and ultra vires Part III of the Constitution.”

76. Now, let us consider the decisions relied on by Mr Gopal Subramanium, learned Senior Counsel for CBI with regard to the contentions raised. In Iqbal Ismail Sodawala v. State of Maharashtra 1975 3 SCC 140, this Court considered almost a similar question. It was argued before the Bench that the allegation of the petitioner therein that the judgment in the case under Sections 392 and 397 IPC against the petitioner was not pronounced by the learned Sessions Judge but by his Sheristadar. It was urged that the procedure adopted in this respect by the learned Sessions Judge was not in accordance with law. This submission was not acceptable to the Bench. The following observation and conclusion are relevant:

“6. … The report of Shri Gupte shows that he dictated the judgment in the case against the petitioner in open court. The judgment included, as it must, the concluding part relating to the conviction and sentence awarded to the petitioner. The petitioner who apparently did not know English was thereafter apprised by the Sheristadar of the Court of the concluding part of the judgment relating to his conviction and sentence. Although normally the trial Judges should themselves convey the result of the trial to the accused, the fact that the learned Judge in the present case did not do so and left it to the Sheristadar would not introduce an infirmity in the procedure adopted by him. The Sheristadar in the very nature of things must have translated to the petitioner what was contained in the concluding part of the judgment. It was, in our opinion, the dictation of the concluding part of the judgment in open court by the learned Sessions Judge which should in the circumstances be taken to be tantamount to the pronouncement of the judgment.

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8. The question then arises as to whether the appellant can be said to be not properly imprisoned if the trial Judge had merely dictated the judgment but not signed it because of its not having been transcribed at the time he pronounced it. So far as this aspect is concerned, we find that Section 537 of the Code of Criminal Procedure provides, inter alia, that subject to the other provisions of the Code, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission, irregularity has in fact occasioned a failure of justice. This section is designed to ensure that no order of a competent court should in the absence of failure of justice be reversed or altered in appeal or revision on account of a procedural irregularity. The Code of Criminal Procedure is essentially a code of procedure and like all procedural law, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. At the same time it has to be borne in mind that it is procedure that spells much of the difference between the rule of law and rule by whim and caprice. The object of the Code is to ensure for the accused a full and fair trial in accordance with the principles of natural justice. If there be substantial compliance with the requirements of law, a mere procedural irregularity would not vitiate the trial unless the same results in miscarriage of justice. In all procedural laws certain things are vital. Disregard of the provisions in respect of them would prove fatal to the trial and would invalidate the conviction. There are, however, other requirements which are not so vital. Non-compliance with them would amount to an irregularity which would be curable unless it has resulted in a failure of justice.”

77. The next decision relied on by the learned Senior Counsel for CBI is reported in Rama Narang v. Ramesh Narang 1995 2 SCC 513 wherein it was held that a judgment becomes complete and appealable only after conviction is recorded and also sentence is awarded.

78. In view of the above discussion, it is useful to refer the relevant provision of the Code with regard to right of hearing.

Right of hearing under Section 235(2) of the Code

79. The right of hearing to the accused on the question of sentence is provided under Section 235(2) of the Code and this provision was introduced in view of the 48th Report of the Law Commission of India*†. Section 235(2) of the Code reads as under:

“235. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.”

The purpose of adding the provision is recognition of the new trend in penology and awarding of sentence taking into consideration various factors such as the prior criminal record of the offender, his age, employment, educational background, sociological backdrop, family background, financial position, antecedents, social adjustment, emotional and mental condition and the prospects of his returning to normal path in conformity with law. It is in fact a humanist principle of individualising punishment to suit the person and his circumstances and, therefore, a hearing is required before imposition of penalty. In order to understand the concept more clearly, it is useful to refer some of the decisions of this Court directly on the point in issue.

80. In Santa Singh v. State of Punjab 1976 4 SCC 190, this Court observed:

“10. … the provisions of Section 235(2) are very salutary and contain one of the cardinal features of natural justice, namely, that the accused must be given an opportunity to make a representation against the sentence proposed to be imposed on him.”

“7. … non-compliance with the requirement of Section 235(2) cannot be described as a mere irregularity in the course of the trial curable under Section 465. It is much more serious. It amounts to bypassing an important stage of the trial and omitting it altogether, so that the trial cannot be said to be that contemplated in the Code. It is a different kind of trial conducted in a manner different from that prescribed by the Code. This deviation constitutes disobedience to an express provision of the Code as to the mode of trial, and as pointed out by the Judicial Committee of the Privy Council in N.A Subramania Iyer v. King Emperor 1900-01 28 IA 257, such a deviation cannot be regarded as a mere irregularity. It goes to the root of the matter and the resulting illegality is of such a character that it vitiates the sentence. (Vide Pulukuri Kotayya v. King Emperor 1946-47 74 IA 65 and Magga v. State of Rajasthan AIR 1953 SC 174.) Secondly, when no opportunity has been given to the appellant to produce material and make submissions in regard to the sentence to be imposed on him, failure of justice must be regarded as implicit. Section 465 cannot, in the circumstances, have any application in a case like the present.

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11. … This obviously postulates that the accused must be given an opportunity of making his representation only regarding the question of sentence and for this purpose he may be allowed to place such materials as he may think fit but which may have bearing only on the question of sentence. The statute … seeks to achieve a socio-economic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society. The modern concept of punishment and penology has undergone a vital transformation and the criminal is now not looked upon as a grave menace to society which should be got rid of but as a diseased person suffering from mental malady or psychological frustration due to sub-conscious reactions and is, therefore, to be cured and corrected rather than to be killed or destroyed. There may be a number of circumstances of which the court may not be aware and which may be taken into consideration by the court while awarding the sentence, particularly a sentence of death, as in the instant case. It will be difficult to lay down any hard-and-fast rule, but the Statement of Objects and Reasons of the 1973 Code itself gives a clear illustration. It refers to an instance where the accused is the sole bread-earner of the family. In such a case if the sentence of death is passed and executed it amounts not only to a physical effacement of the criminal but also a complete socio-economic destruction of the family which he leaves behind. Similarly there may be cases, where, after the offence and during the trial, the accused may have developed some virulent disease or some mental infirmity, which may be an important factor to be taken into consideration while passing the sentence of death. It was for these reasons that Section 235(2) of the 1973 Code was enshrined in the Code for the purpose of making the court aware of these circumstances so that even if the highest penalty of death is passed on the accused he does not have a grievance that he was not heard on his personal, social and domestic circumstances before the sentence was given.”

81. In Ramdeo Chauhan v. State of Assam 2001 5 SCC 714 this Court examined the issue at length and held:

“33. … The requirement contained in Section 235(2) of the Code (the obligation of the Judge to hear the accused on the question of sentence) is intended to achieve a purpose. The said legislative provision is meant for affording benefit to the convicted person in the matter of sentence. But when the Sessions Judge does not propose to award death penalty to a person convicted of the offence under Section 302 IPC what is the benefit to be secured by hearing the accused on the question of sentence? However much it is argued the Sessions Judge cannot award a sentence less than imprisonment for life for the said offence. If a Sessions Judge who convicts the accused under Section 302 IPC (with or without the aid of other sections) does not propose to award death penalty, we feel that the Court need not waste time on hearing the accused on the question of sentence. We therefore choose to use this occasion for reiterating the legal position regarding the necessity to afford opportunity for hearing to the accused on the question of sentence [is as follows]:

(1) When the conviction is under Section 302 IPC (with or without the aid of Section 34 or 149 or 120-B IPC) if the Sessions Judge does not propose to impose death penalty on the convicted person it is unnecessary to proceed to hear the accused on the question of sentence. Section 235(2) of the Code will not be violated if the sentence of life imprisonment is awarded for that offence without hearing the accused on the question of sentence.

(2) In all other cases the accused must be given sufficient opportunity of hearing on the question of sentence.

(3) The normal rule is that after pronouncing the verdict of guilty the hearing should be made on the same day and the sentence shall also be pronounced on the same day.

(4) In cases where the Judge feels or if the accused demands more time for hearing on the question of sentence (especially when the Judge proposes to impose death penalty) the proviso to Section 309(2) is not a bar for affording such time.

(5) For any reason the court is inclined to adjourn the case after pronouncing the verdict of guilty in grave offences the convicted person shall be committed to jail till the verdict on the sentence is pronounced. Further detention will depend upon the process of law.”

82. In case, such an opportunity of hearing is not provided, the appellate court must remand the case to the trial court on a limited issue for re-trial on the question of sentence. (Vide Nirpal Singh v. State of Haryana 1977 2 SCC 131.) However, in exceptional circumstances, where remand is likely to cause delay, it is open to remedy the prejudice by giving a hearing to the accused on the question of sentence by the appellate court. (Vide Dagdu v. State of Maharashtra 1977 3 SCC 68, Tarlok Singh v. State of Punjab 1977 3 SCC 218 and Kamalakar Nandram Bhavsar v. State of Maharashtra 2004 10 SCC 192.) In case, at the time of trial, there was no objection for not providing sufficient time to the accused or in respect of a small fraction of the mandatory provision of Section 235(2) of the Code, he cannot be allowed to raise the plea of prejudice of such non-compliance at the appellate stage. (Vide Moti Lal v. State of M.P 2004 2 SCC 469)

83. Thus, in view of the above, it is evident that generally a judgment must be complete and it must have points for determination, decision thereon and reasons for such a decision. The basic requirement for such ingredients appears to be that the superior court (appellate/revisional) may be able to examine as to whether the judgment under challenge has been rendered in accordance with law and particularly, based on evidence on record. So, the purpose of recording reasons is to facilitate the superior court to examine the correctness of the judgment of the courts below.

84. So far as the grievance of the accused/convict that an opportunity of hearing was not given by the court below and, thus, he failed to address the court appropriately on the issue of sentence, may not have any substance for the reason that the legislative policy discernible under Section 235(2) read with Section 354(3) CrPC is that the quantum of punishment is to be determined on considerations and circumstances not merely connected with a particular crime but a court is also bound to give due consideration to the other circumstances of the criminal. It is for this reason that the court while hearing a convict on sentence is required to give a party an opportunity of producing evidence or materials relating to the various factors having some bearing on the question of sentence. The court, while determining the quantum of sentence, acts in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. Therefore, there is bifurcation of trial as an accused has a right of pre-conviction hearing under Section 234 and secondly, right of pre-sentence hearing under Section 235 of the Code. For pre-conviction hearing, the accused must be well informed as to what the exact prosecution case is and what evidence has been adduced by the prosecution to prove its case. It is for the prosecution to prove its case beyond reasonable doubt, as in case the pivot of the prosecution is not accepted, a new prosecution case cannot be made to imperil the defence. The prosecution as well as the convict has a right to adduce evidence to show aggravating grounds to impose severe punishment or mitigating circumstances to impose a lesser sentence. More so, appeal is a continuity of trial.

85. In Akhtari Bi v. State of M.P 2001 4 SCC 355 this Court explained the nature of appeal by observing as under:

“5. … Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction.”

86. Needless to say that the appellate court has a right of rehearing, re-appreciating the evidence and in exceptional circumstances even to permit a party to adduce additional evidence. Therefore, in a case where there has been some irregularity in delivering the judgment, it can be cured at the appellate stage.

87. As against the abovementioned decisions, it is also useful to refer to the following decisions which are directly on the point in issue.

88. Judgment indicates the termination of the case by an order of conviction or acquittal of the accused and judgment is to be rendered in strict adherence to the provisions of Chapter XXVII of the Code. (Vide Hori Ram Singh v. Crown and S. Kuppuswami Rao v. R.)

89. In view of the provisions of Section 354 of the Code, it is necessary that every judgment must contain:

(1) the points for determination;

(2) the decision thereon; and

(3) the reasons for such decision.

Where the reasons given by the trial court are such as cannot be supported by the evidence on record, they are not reasons for the decision. To constitute a legal appreciation of evidence, the judgment should be such as to indicate that the court has applied its mind to it. Every portion of the judgment must indicate application of mind by the court to the evidence on record. The reason for the decision is an important ingredient of a judgment. Compliance with the law in this regard should not be merely formal but substantial and real, for it is this part of the judgment alone which enables the higher court to appreciate the correctness of the decision, the parties to feel that the court has fully and impartially considered their respective cases and the public to realise that a genuine and sincere attempt has been made to mete out even-handed justice. Reasons form the substratum of the decision and their factual accuracy is a guarantee that the court has applied its mind to the evidence in the case. Where the statement of reasons turned out to be a mere hollow pretension of a baseless claim of application of mind by the court, the judgment is robbed of one of its most essential ingredients and forfeits its claim to be termed as judgment in the eye of the law.

90. In Bachan Singh v. State of Punjab Bachan Singh v. State of Punjab, 1980 2 SCC 684, this Court observed:( & 738-39, paras 151-52 & 162-63)

“151. … Accordingly, sub-section (3) of Section 354 CrPC provides:

‘354. (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.’

152. In the context, we may also notice Section 235(2) of the Code of 1973, because it makes not only explicit, what according to the decision in Jagmohan Singh v. State of U.P Jagmohan Singh v. State of U.P, 1973 1 SCC 20 was implicit in the scheme of the Code, but also bifurcates the trial by providing for two hearings, one at the pre-conviction stage and another at the pre-sentence stage. … By enacting Section 235(2) of the new Code, Parliament has accepted that recommendation of the Law Commission. Although sub-section (2) of Section 235 does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or the accused, or by both, the Judge should give the party or parties concerned an opportunity of producing evidence or material relating to the various factors bearing on the question of sentence.

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162. In this view, we are in accord with the dictum [laid down] in Balwant Singh v. State of Punjab 1976 1 SCC 425, wherein the interpretation of Section 354(3) first came up for consideration. …

‘4. … Under this provision the court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated. It would thus be noticed that awarding of the sentence other than the sentence of death is the general rule now and only special reasons, that is to say, special facts and circumstances in a given case, will warrant the passing of the death sentence. It is unnecessary nor is it possible to make a catalogue of the special reasons which may justify the passing of the death sentence in a case.’

163. … The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 IPC, the court should not confine its consideration ‘principally’ or merely*‡ to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.”

(emphasis supplied)

91. In Allauddin Mian v. State of Bihar 1989 3 SCC 5, this Court observed:

“10. … The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according to the accused an opportunity of being heard on the question of sentence and at the same time helps the court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality.”

92. In Muniappan v. State of T.N Muniappan v. State of T.N, 1981 3 SCC 11 this Court held that:

“2. … the obligation to hear the accused on the question of sentence which is imposed by Section 235(2) of the Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually [have a bearing] on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of a Judge to cast aside the formalities of the court scene and approach the question of sentence from a broad, sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. … The court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction.”

(emphasis supplied)

93. In Rameshbhai Chandubhai Rathod v. State of Gujarat 2009 5 SCC 740, this Court observed that:

“81. In a case where the court imposes the death sentence both the aforesaid provisions, namely, Section 235(2) and Section 354(3) of the Code assume signal significance. The constitutional validity of Section 354(3) was upheld in Bachan Singh as the learned Judges have said that the legislative policy in sentencing is discernable from those two sections. In a judgment, both those two sections supplement each other and in a case where death penalty is imposed, both the sections must be harmoniously and conjointly appreciated and read.”

94. “86. Section 235(2) as interpreted by this Court in Bachan Singh … provides for a ‘bifurcated trial’. It gives the accused (i) a right of pre-sentence hearing, on which he can (ii) bring on record material or evidence which may not be (iii) strictly relevant to or connected with the particular crime but (iv) may have a bearing on the choice of sentence. Therefore, it has to be a regular hearing like a trial and not a mere empty formality or an exercise in an idle ritual.

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91. Even without referring to Bachan Singh, in Muniappan a two-Judge Bench of this Court, emphasised the importance of hearing the accused on the question of sentence under Section 235(2) of the Code and came to the conclusion that the question of hearing the accused on sentence was not to be discharged without putting formal questions to the accused.” (Rameshbhai Chandubhai Rathod case)

95. This Court in Malkiat Singh v. State of Punjab 1991 4 SCC 341, while explaining the provisions under Section 235(2) of the Code, held as under:

“18. … Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the court facts and material relating to various factors on the question of sentence, and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.”

96. Therefore, fairness, justice and reasonableness which constitute the essence of guarantee of life and liberty epitomised in Article 21 of the Constitution also pervades the sentencing policy in Sections 235(2) and 354(3) of the Code. Those two provisions virtually assimilate the concept of “procedure established by law” within the meaning of Article 21 of the Constitution. Thus, a strict compliance with those provisions in the way they were interpreted in Bachan Singh having regard to the development of constitutional law by this Court is a must before imposing the death sentence.

97. It is clear that “judgment” is a formal intimation of the decision and its contents formally declare in a judicial way in open court. In other words, it is a declaration of the mind of the court at the time of pronouncement. It is also clear that passing sentence without recording the judgment would amount to illegality. Pronouncing sentence before completing the judgment, that is, before preparing the essential part makes the sentence illegal and vitiates the conviction.

98. We have already adverted to the fact that the word “judgment” has not been defined in IPC, and even in TADA. However, the Code, particularly Sections 353, 354, 362 and 363 make it clear that how the judgment is to be in a criminal trial, the language and contents and the procedure to be followed in furnishing a copy of the judgment immediately after pronouncement. It is also clear that the ultimate decision, namely, the judgment, shall be pronounced in the open court after the termination of the trial. Section 353(1) of the Code makes it clear that it is incumbent on the part of the Presiding Officer to deliver the whole of the judgment or by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.

99. We have already referred to the fact that the blasts occurred on 12-3-1993. Initially, the charge-sheet was filed by the State of Maharasthra on 4-11-1993 relating to 189 persons. Thereafter, CBI was asked to investigate further on 19-11-1993 and filed 19 supplementary charge-sheets. Finally, on 10-4-1995, the order framing charges was passed. Thereafter, recording of evidence began on 30-6-1995 by examining the first prosecution witness. Recording of the evidence continued till 18-10-2000. Thereafter, the arguments commenced from 9-8-2001 which continued up to 20-9-2003. After having voluminous record of evidence both oral and documentary, the Designated Court reserved for order on 23-11-2003 and the same position continued up till 12-9-2006. It is relevant to point out that in total 123 persons were tried as accused, out of which, 23 persons were acquitted of all the charges and the balance accused were convicted and sentenced under various charges.

100. The records produced show that on 12-9-2006, the Designated Court started reading the conclusion. On that day, the Court passed the following order in respect of A-1.

“For the reasons separately recorded the conclusion being reached of:

A-1. Yakub Abdul Razak Memon being found guilty for offences for which charge at head firstly is framed against him and for offence under Section 3(3) TADA Act for which charge at head secondly is framed against him and for offence under Section 5 TADA for which charge at head thirdly is framed against him and for offence under Section 6 TADA for which charge at head fourthly is framed against him and for offence punishable under Sections 3 and 4 read with Section 6 of the Explosives Act for which charge at head fifthly is framed against him.”

Since at this moment, we are concentrating only on A-1, we are not extracting the conclusion reached in respect of other accused.

101. After recording the above conclusion, the Designated Court has also recorded the following statements:

“The said accused were apprised regarding the offences for which they were found to be guilty.

In view of the court having reached to such findings A-3, A-4, A-8 who are on bail are taken into custody of this Court and their bail bonds stand cancelled.

For recording the statement of the accused who are found guilty about their say regarding quantum of the sentence to be imposed, the matter stands posted tomorrow.”

102. On 27-7-2007, the Designated Court again read the following conclusion in respect of A-1.

“82. (a) Accused 1. Yakub Abdul Razak Memon out of the remaining five accused at trial:

is found guilty of the offence of conspiracy for commission of such acts as found proved from charge firstly framed at trial and punishable under Section 3(3) of the TADA Act, 1987 and Section 120-B IPC read with the offences mentioned in the said charge and on the said count the said accused is hereby convicted and sentenced to suffer punishment of death and for the said purpose is ordered to be hanged by the neck till he is dead but subject to confirmation of the same by the Hon'ble Apex Court about said part of the sentence and is also ordered to pay a fine of Rs 25,000 (Rupees twenty-five thousand).

(b) is also found guilty of the offence punishable under Section 3(3) of the TADA Act, 1987 for commission of such acts as found proved from the charge at head secondly framed against him and on the said count the said accused is hereby convicted and sentenced to suffer RI for life and is ordered to pay a fine of Rs 1,00,000 (Rupees one lakh only) and in default of payment of fine is ordered to suffer further rigorous imprisonment for a period of 2 (two) years.

(c) is also found guilty of the offence punishable under Section 5 TADA for commission of such acts as found proved from charge at head thirdly framed against him and on said counts the said accused is hereby convicted and sentenced to suffer RI for 10 (ten) years and is ordered to pay a fine of Rs 1,00,000 (Rupees one lakh only) and in default of payment of fine is ordered to suffer further RI for a period of 2 (two) years.

(d) is also found guilty of the offence punishable under Section 6 TADA for commission of such acts as found proved from the charge at head fourthly framed against him and on said count the said accused is hereby convicted and sentenced to suffer RI for 14 (fourteen) years and is ordered to pay a fine of Rs 1,00,000 (Rupees one lakh only) and in default of payment of fine is ordered to suffer further RI for a period of 2 (two) years.

(e) is also found guilty of the offence punishable under Sections 3 and 4 read with Section 6 of the Explosives Act for commission of such acts as found proved from the charge at head fifthly framed against him and on said count the said accused is hereby convicted and sentenced to suffer RI for 10 (ten) years and is ordered to pay a fine of Rs 50,000 (Rupees fifty thousand only) and in default of payment of fine is ordered to suffer further RI for a period of 1 (one) year.

(f) however, the aforesaid accused being found not guilty of all other offences for which the said accused was charged at trial vide charges framed at Ext. 4 the said accused is acquitted of all the said offences.

(g) the accused entitled for set off in accordance with law for the period for which he was in custody.

(h) the substantive sentence awarded to A-1 to run concurrently.

(i) A-1 is apprised of the sentence awarded to him. The said accused is again apprised that sentence of death awarded to him is subject to confirmation of the same by the Hon'ble Apex Court and for the said purpose the court would be making necessary reference to the Apex Court within 30 days from the day of completion of passing of the final order.

(j) The said accused is further apprised that it will take some time to complete the pronouncement of the final order of conviction and sentence of the remaining accused in this case and thus complete the judgment by getting the same transcribed, corrected and signed. The said accused is apprised that a copy of the judgment and order will be supplied to him free of cost after the same is completed and corrected in all respects and for the said purpose the said accused will be ordered to be produced before the Registrar of this Court on 26-9-2007 for supplying such copy subject to the same being by then ready.

(k) the Court Sheristadar to hand over the operative part of the order passed today to A-1.

(l) The Registrar to send A-1, A-3, A-4 and A-8 to Arthur Road Prison along with the appropriate warrant.

Dated: 27-7-2007 sd/- (P.D Kode) Presiding Officer of the Designated Court (Under TADA Act, 1987) For Bomb Blast Cases, Greater Bombay”

103. On perusal of the conclusion with regard to A-1, it is very much clear that he was apprised regarding the offences of which he was found to be guilty. While A-1 was awarded death sentence, it is clear from the conclusion that he was apprised that the sentence of death awarded to him is subject to the confirmation by the Apex Court and he was also informed that for the said purpose the court would be making necessary reference to the Apex Court within 30 days from the date of completion of passing of the final order. In the same order, the court has also apprised A-1 that it will take some time to complete the pronouncement of the final order of conviction and sentence of the remaining accused and complete the judgment by getting the same transcribed, corrected and signed. The court also directed the Sheristadar to hand over the “operative part” of the order passed on both these days i.e 12-9-2006 and 27-7-2007. In view of the above, it is useful to refer to the following decisions on the point.

104. In Rama Narang v. Ramesh Narang, it was held as under:

“12. … The trial, therefore, comes to an end only after the sentence is awarded to the convicted person.

13. … Thus a judgment is not complete unless the punishment to which the accused person is sentenced is set out therein.”

The Court further held in para 15:

“15. Under the provisions of the Code to which we have already referred there are two stages in a criminal trial before a Sessions Court, the stage up to the recording of a conviction and the stage post-conviction up to the imposition of sentence. A judgment becomes complete after both these stages are covered.”

(emphasis supplied)

105. In Lakdey Ashok v. Govt. of A.P 2009 6 An LT 677 (in paras 12, 13 and 15) it was held by the Andhra Pradesh High Court that the “judgment”, as contemplated under Section 353 is complete only after the order on sentence is pronounced. The High Court held that:

“It will thus be seen that under the Code after the conviction is recorded, Section 235(2) inter alia provides that a Judge shall hear the accused on the question of sentence and then pass sentence on him according to law. The trial, therefore, comes to an end only after the sentence is awarded to the convicted person. It will thus be seen from the above provisions that after the court records a conviction, the accused has to be heard on the question of sentence and it is only after the sentence is awarded that the judgment becomes complete and can be appealed against under Section 373 CrPC. Under the provisions of the Code to which we have already referred there are two stages in a criminal trial before the Sessions Court, the stage up to recording of a conviction and the stage post-conviction up to the imposition of sentence. A judgment becomes complete after both these stages are covered.”

(emphasis supplied)

106. It is clear that a conviction order is not a “judgment” as contemplated under Section 353 and that a judgment is pronounced only after the award of sentence.

107. In the case on hand, the Designated Judge pronounced the operative part of the judgment on 27-7-2007 and explained the substance of the judgment to the appellant in compliance with the requirements of Section 353(1)(c) of the Code. A perusal of the final judgment of the Designated Court shows that the Designated Judge has dealt with the issue of pronouncing the judgment under Section 353(1)(c) in detail. In para 5 of Part 46 of the final judgment, the Designated Judge explained the reasons for pronouncing the judgment under Section 353(1)(c) of the Code as follows:

“5. In the premises aforesaid but in light of (1) the events which had occurred in the past at the trial, (2) keeping in mind the attitude and conduct of the accused as disclosed during the course of trial, (3) mammoth subject-matter involved at the trial i.e charges framed thereon running into 512 with many of them containing in all 192 sub-charges, (4) delicacy and sensitivity of subject-matter involved at the trial due to numerous incidents involved and communal conflict said to be involved, (5) impact likely to be caused at/even after commencing the process of judgment within and even outside the court precincts, (6) impact likely to be caused at/after declaration of final order, (7) point of security and safety of concerns attending during the course of proceedings within or even outside the precincts of court and point of law and order within the city/State/nation, (8) large number of 123 accused about whom judgment was to be declared, (9) necessity of smoothly completing the process of judgment by taking due care to prevent/avoid occurrence of any event causing disturbance, interruptions, etc. during the same vitiating the decorum of the court, it was proper to deliver the judgment only in accordance with the provision of Section 353(1)(c) CrPC rather than adopting any other prescribed mode for delivery of the judgment. Needless to add that following the other method was bound to result in the trend of the judgment being known to the accused prior to delivery of the same and thus giving all the chance to the unscrupulous accused on bail to flee away and such accused in custody to create confusion/or indulge in activities, disrupting the ongoing work and thereby defeating the process of law. For the same reason it was also felt necessary to keep the judgment computerised and contents thereof protected by putting a password rather than taking a printout of the same.”

(emphasis supplied)

108. Since we have completely analysed the method followed by the Designated Judge, we are satisfied that the requirements of pronouncing a judgment under Section 353(1)(c) of the Code have been fully complied with. The above approach makes it clear that while pronouncing the operative part of the judgment, the Designated Court ensured that the substance of the judgment has been explained to the appellant in compliance with the requirement of Section 353. It is also relevant to point out that the said order dated 27-7-2007 was pronounced in open court and signed and dated by the Designated Judge in compliance with the requirements of the said section.

109. Regarding the requirement of providing a copy of the judgment immediately as required by the provisions of Section 363, the Designated Judge in para 61 of Part 46 of the final judgment has dealt with the same as follows:

“Having regard to the same, the word used ‘immediately’ in Section 363(1) CrPC will be required to be interpreted in context of the subject-matter involved in each of the case. In short in a case involving such huge subject-matter furnishing of such copy after reasonable time after completion of passing of final order would never be said to be an act offending the provisions of law or defeating the right of the accused.”

110. We have already pointed out that this was a joint trial of 123 accused persons. It is also brought to our notice that the copy of the final judgment was provided free of cost to the appellant after the pronouncement of the orders with respect to each of the accused by the Designated Judge. Further, as is evident from para (j) of the order dated 27-7-2007, the appellant was apprised of the fact that a copy of the final judgment would be provided after completion of the order as regards the sentence in respect of the remaining accused.

111. As pointed out earlier, the trial at the Designated Court involved 123 accused and findings were recorded for 512 charges and accordingly, the process of pronouncing sentence in respect of each accused and apprising the accused of the same could not have been completed in a day. Thus, the process of pronouncement of the judgment had to be carried out for all accused since it was a joint trial and accordingly a copy of the final judgment could be provided to each of the accused only after the sentence was pronounced in respect of all the accused persons.

112. The judgment also shows that detailed hearings on sentencing effectively commenced after all the conviction orders were pronounced and the counsel for the appellant/appellants made detailed submissions on it. It is evident from para 351 onwards of Part 46 of the final judgment that detailed submissions were made by the counsel by pointing out mitigating factors that were considered by the Designated Judge while sentencing the appellant and others accused at the trial.

113. It is also clear from the judgment that detailed submissions were made by the appellant (A-1) during the pre-sentence hearing and these submissions were considered and, accordingly, reasons have been recorded by the Designated Judge in Part 46 of the final judgment in compliance with the requirement of Section 235(2) and Section 353 of the Code. It is also relevant to mention that Section 354 makes it clear that “judgment” shall contain the punishment awarded to the accused. It is therefore, complete only after the sentence is determined.

114. Section 354(1)(c) states that every judgment referred to in Section 353 “shall specify the offence (if any) of which, and the section of the Penal Code (45 of 1860), or other law under which, the accused is convicted and the punishment to which he is sentenced”. In view of the same, the judgment under Section 353(1)(c) is to be pronounced only after the sentence in a case where conviction is determined. The process of delivery of judgment includes the determination of guilt, or otherwise, of an accused and in the event of such guilt being established, also includes the process of sentencing the accused.

115. In our case, it was pointed out that the judgment was reserved on 23-11-2003. Till 2006, the court proceeded to formulate its reasons and make judicial determination of guilt or otherwise in respect of each accused. The process of delivery of judgment commenced on 12-9-2006 when the court pronounced its verdict on the guilt or otherwise of the specific accused. Whilst doing so, the Designated Judge explained the offences for which the accused were being convicted and invited the accused persons to make their statements with reference to the quantum of sentence. It is evident that at this stage, the detailed reasoning may not have been finally communicated to the accused, but the determination of the court as well as the broad understanding of the operative part of the judgment was communicated. In case there is an objection on the part of the accused regarding not knowing the reasons for his conviction, it contextually means that he had not been made aware as to the specific pieces of evidence or marshalling of facts which led to his conviction.

116. In view of the same, there is no illegality or irregularity in the process followed and specifically under Sections 353, 354 and 235 keeping in mind the magnitude of the task before the Designated Judge inasmuch as he was trying 123 accused persons and had to deliver a judgment which runs to about 4300 pages. In view of the above, we hold that the pronouncement of the judgment was in compliance with the abovesaid provisions of the Code and does not violate any of the provisions of the Code as contended by the appellant.

117. It is also clear from the reasoning of the Designated Court that by adopting the same procedure, the Designated Judge conveyed the conclusion with regard to various charges levelled against other accused (convicted total accused 100) and also apprised each one of them including A-1 the reasoning and other materials for arriving at such a conclusion as well as their pleaders. He also apprised them that because the convicted accused are 100 in number and the common judgment is running into thousands of pages, it may require some time and as soon as the full judgment will be made ready, the same will be supplied to them free of cost. It does not mean that on the date of pronouncing the decision (decision was pronounced on various dates), the whole judgment was not ready or incomplete.

118. As the Code mandates that the accused are entitled to full/whole judgment, unless the conclusion relating to all the convicted accused is read over and explained to them, opportunity of hearing on sentence has been provided to them or their respective counsel and incorporation of both the conclusions relating to conviction and sentence has been done, the same cannot be supplied to the accused. Taking note of the number of persons involved, witnesses examined, documents marked/exhibited which are running into thousands of pages, unless the full/whole judgment containing all the details, the same cannot be supplied to the accused. In other words, the supplied copy of the judgment unless it contains the charges, materials both oral and documentary relied on by the prosecution, discussion, ultimate conclusion and the sentence, the same cannot be treated as full/whole judgment in terms of the procedure prescribed under the Code. Inasmuch as all these factual aspects, particularly the peculiar position about the number of accused and voluminous oral and documentary evidence, the Designated Judge not only apprised the accused regarding the offences for which they were found to be guilty but also of the reasoning adopted and the materials relied on by him.

119. It is also relevant to point out that on apprisal of various offences of which the accused were found to be guilty before hearing all the accused on sentence, their respective counsel took time for filing written arguments, in fact, filed written submissions on various dates conveying their views to the court. It is also clear that on consideration of the objections raised, the accused were awarded the sentence and the same were ultimately conveyed to all the accused.

120. It is not in dispute that neither the decision relating to ultimate conviction nor the sentence could be done in one day in respect of all the convicted 100 accused. Undoubtedly, it spread over to various dates and we are satisfied that the Designated Court completed its task by passing the impugned orders keeping in mind the procedural aspects to be followed in terms of the Code (vide Sections 353, 354, 362, 363, etc.) and at the same time, adhering to the principles of natural justice and the valuable right of the accused under Article 21 of the Constitution.

Whether the impugned judgment is in violation of Section 362 of the Code

121. It is also brought to our notice that several applications were made by various accused persons to amend the conviction orders which were dismissed as meritless by the Designated Court. In fact, the Designated Court dismissed the applications for amending the conviction orders of 99 accused persons. The learned Senior Counsel for A-1 relied upon Section 362 and contended that since judgment on the sentence had not been pronounced, the Designated Court could amend the conviction order to bring all convictions under IPC instead of convicting 99 accused persons under TADA.

122. In the light of the submissions made, we verified the records and the impugned final judgment, particularly, Part 46 and found that neither A-1 nor any other counsel pointed out the amendment, in particular, that would attract the provisions of Section 362 of the Code. On the other hand, as rightly pointed out by the counsel for CBI, there is no alteration and amendment that has been made in the judgment after its pronouncement as claimed by the counsel for the appellant.

123. The Code being essentially a code of procedure unlike all procedural laws is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure for the accused a full and fair trial in accordance with the principles of natural justice. From the materials placed and after verification of the decision, apprisal of the accused about the contents of the judgment, hearing all the accused and their pleaders regarding sentence, we are satisfied that the Designated Court has complied with the requirements of law and we are also satisfied that considering the voluminous nature of work, even if there is a mere procedural irregularity that would not vitiate the trial or the ultimate conclusion unless the same results in miscarriage of justice.

124. We are satisfied that the impugned judgment and procedure followed and adopted by the Designated Court fulfil the mandate of the Code and there is neither violation of principles of natural justice nor breach of Article 21 of the Constitution. Even otherwise, taking note of the fact that the present appeals are the only remedy for the appellants, we heard the counsel at length, perused and analysed all the oral and documentary evidence running into several volumes. Every opportunity was granted to all the counsel and all the issues were considered without any restriction. Accordingly, we reject the contention raised by the learned Senior Counsel for the appellant.

Conspiracy

125. Chapter 5-A of the Penal Code speaks about criminal conspiracy. Section 120-A defines criminal conspiracy which is as under:

“120-A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be done—

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.”

126. Section 120-B speaks about punishment of criminal conspiracy which is as under:

“120-B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”

Statement of Objects and Reasons of the 1913 Amendment

127. The abovementioned sections of the Penal Code were introduced by the amendment of 1913. It is important to notice the Statement of Objects and Reasons of the said amendment to understand that the underlying purpose of introducing Section 120-A was to make a mere agreement to do an illegal act or an act which is not illegal by illegal means, punishable. The Statement of Objects and Reasons are as follows:

“The sections of the Indian Penal Code which deal directly with the subject of conspiracy are those contained in Chapter V and Section 121-A of the Code. Under the latter provision, it is an offence to conspire to commit any of the offences punishable by Section 121 of the Indian Penal Code or to conspire to deprive the King of sovereignty of British India or any part thereof or to overawe by means of criminal force or show of criminal force the Government of India or any Local Government and to constitute a conspiracy under this section. It is not necessary that any act or illegal omission should take place in pursuance thereof. Under Section 107, abetment includes engaging with one or more person or persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing.. In other words, except in respect of the offences particularised in Section 121-A conspiracy per se is not an offence under the Indian Penal Code.

***

On the other hand, by the common law of England, if two or more persons agree together to do anything contrary to law, or to use unlawful means in the carrying out of an object not otherwise unlawful, the persons, who so agree, commit the offence of conspiracy. In other words, conspiracy in England may be defined as an agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means, and the parties to such a conspiracy are liable to indictment.

***

Experience has shown that dangerous conspiracies have entered into India which have for their object aims other than the commission of the offences specified in Section 121-A of the Indian Penal Code and that the existing law is inadequate to deal with modern conditions. The present Bill is designed to assimilate the provisions of the Indian Penal Code to those of the English law with the additional safeguard that in the case of a conspiracy other than a conspiracy to commit an offence some overt act is necessary to bring the conspiracy within the purview of the criminal law. The Bill makes criminal conspiracy a substantive offence, and when such a conspiracy is to commit an offence punishable with death, or rigorous imprisonment for a term of two years or upwards, and no express provision is made in the Code, provides a punishment of the same nature as that which might be awarded for the abetment of such an offence. In all other cases of criminal conspiracy the punishment contemplated is imprisonment of either description for a term not exceeding six months or with fine, or with both.”

128. Prior to the amendment of IPC and the introduction of Sections 120-A and 120-B, the doctrine of agency was applicable to ascertain the liability of the conspirators, however, conspiracy in itself was not an offence (except for certain offences). The amendment made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. Prior to the amendment, unless an overt act took place in furtherance of the conspiracy it was not indictable (it would become indictable by virtue of being abetment).

129. The proposition that the mere agreement constitutes the offence has been accepted by this Court in several judgments. Reference may be made to Major E.G Barsay v. State of Bombay Major E.G Barsay v. State of Bombay, AIR 1961 SC 1762 wherein this Court held that the gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. It is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. The Court in Barsay case has held as under: (AIR p. 1778, para 31)

“31. … Section 120-A of the Penal Code, 1860 defines ‘criminal conspiracy’ and under that definition,

‘When two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy’.

The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Penal Code, 1860 an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.”

Theory of Agency and Conspiracy

130. An important facet of the law of conspiracy is that apart from it being a distinct offence, all conspirators are liable for the acts of each other of the crime or crimes which have been committed as a result of the conspiracy. This principle has been recognised right from the early judgment in R. v. Murphy 1873 8 Car & P 297. In the said judgment Coleridge, J. while summing up for the jury stated as follows: (ER p. 508)

“… I am bound to tell you, that although the common design is the root of the charge, it is not necessary to prove that these two parties came together and actually agreed in terms to have this common design, and to pursue it by common means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, and the other another part of the same act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, ‘Had they this common design, and did they pursue it by these common means—the design being unlawful?’ … It is not necessary that it should be proved that these defendants met to concoct this scheme, nor is it necessary that they should have originated it. If a conspiracy be already formed, and a person joins it afterwards, he is equally guilty. You are to say whether, from the acts that have been proved, you are satisfied that these defendants were acting in concert in this matter. If you are satisfied that there was concert between them, I am bound to say, that being convinced of the conspiracy, it is not necessary that you should find both Mr Murphy and Mr Douglas doing each particular act, as, after the fact of a conspiracy is once established in your minds, whatever is either said or done by either of the defendants in pursuance of the common design, is, both in law and in common sense, to be considered as the act of both.”

131. Each conspirator can be attributed each other's actions in a conspiracy. The theory of agency applies and this rule existed even prior to the amendment of the Penal Code in India. This is reflected in the rule of evidence under Section 10 of the Evidence Act, 1872. Conspiracy is punishable independent of its fruition. The principle of agency as a rule of liability and not merely a rule of evidence has been accepted both by the Privy Council as well as by this Court. The following judgments are relevant for this proposition:

131.1 Babulal Choukhani v. King Emperor AIR 1938 PC 130, where the Privy Council held that: (IA p. 176)

“… if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it.”

131.2 State of A.P v. Kandimalla Subbaiah 1962 1 SCR 194, where this Court opined that where a number of offences are committed by several persons in pursuance of a conspiracy it is usual to charge them with those offences as well as with the offence of conspiracy to commit those offences, if the alleged offences flow out of the conspiracy, the appropriate form of charge would be a specific charge in respect of each of those offences along with the charge of conspiracy.

131.3 State of H.P v. Krishan Lal Pardhan 1987 2 SCC 17 where it was held that:

“8. … The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences.”

131.4 In Nalini46, this Court explained that conspiracy results in a joint responsibility and everything said, written or done in furtherance of the common purpose is deemed to have been done by each of them. The Court held:

“583. Some of the broad principles governing the law of conspiracy may be summarised though, as the name implies, a summary cannot be exhaustive of the principles.

(1) Under Section 120-A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.

(2) Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.

(3) Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.

(4) Conspirators may for example, be enrolled in a chain—A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrols. There may be a kind of umbrella-spoke enrolment, where a single person at the centre does the enrolling and all the other members are unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of a single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.

(5) When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and everyone who joins in the agreement. There have thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.

(6) It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.

(7) A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand ‘this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders’47.

(8) As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.

(9) It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.

(10) A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.”

132. The offence under Section 120-B is a crime between the parties to do a particular act. Association or relation to lead conspiracy is not enough to establish the intention to kill the deceased. To make it clear, to bring home the charge of conspiracy within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence.

133. Since conspiracy is hatched in secrecy, to bring home the charge of conspiracy, it is relevant to decide conclusively the object behind it from the charges levelled against the accused and the facts of the case. The object behind it is the ultimate aim of the conspiracy. Further, many means might have been adopted to achieve this ultimate object. The means may even constitute different offences by themselves, but as long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy.

134. In Ajay Aggarwal v. Union of India AIR 1993 SC 1637, this Court rejected the submission of the accused that as he was staying in Dubai and the conspiracy was initially hatched in Chandigarh and he did not play an active part in the commission of the acts which ultimately lead to the incident, thus, could not be liable for any offence, observing:

“8. … Section 120-A IPC defines ‘conspiracy’ to mean that when two or more persons agree to do, or cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated as ‘criminal conspiracy’. No agreement except an agreement to commit an offence shall amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement in furtherance thereof. Section 120-B IPC prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of ‘criminal conspiracy’ was stated first by Lord Denman in Jones case R. v. Jones, 1832 4 B & Ad 345 that an indictment for conspiracy must ‘charge a conspiracy to do an unlawful act by unlawful means’….”

The Court, thus, held that an agreement between two or more persons to do an illegal act or a legal act by illegal means is criminal conspiracy. Conspiracy itself is a substantive offence and is distinct from the offence to be committed, for which the conspiracy was entered into. A conspiracy is a continuing offence and continues to subsist and is committed wherever one of the conspirators does an act or series of acts. So long as its performance continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity. A crime is complete as soon as the agreement is made, but it is not a thing of the moment. It does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry into effect the design. (Vide Sudhir Shantilal Mehta v. CBI 2009 8 SCC 1.)

135. In Yash Pal Mittal v. State of Punjab 1977 4 SCC 540 the rule was laid down as follows:

“9. … The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal, several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the conspirators.”

136. For an offence under Section 120-B IPC, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. It is not necessary that each member of the conspiracy must know all the details of the conspiracy. The offence can be proved largely from the inferences drawn from the acts or illegal omissions committed by the conspirators in pursuance of a common design. Being a continuing offence, if any acts or omissions which constitute an offence are done in India or outside its territory, the conspirators continuing to be the parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain the sanction of the Central Government. All of them need not be present in India nor continue to remain in India. The entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. (Vide R.K Dalmia v. Delhi Admn. AIR 1962 SC 1821, Lennart Schussler v. Director of Enforcement 1970 1 SCC 152, Shivnarayan Laxminarayan Joshi v. State of Maharashtra 1980 2 SCC 465 and Mohd. Usman Mohammad Hussain Maniyar v. State of Maharashtra 1981 2 SCC 443.)

137. In Yogesh v. State of Maharashtra 2008 10 SCC 394 this Court held:

“25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement.”

138. In Nirmal Singh Kahlon v. State of Punjab AIR 2009 SC 984, this Court following Ram Lal Narang v. State (Delhi Admn.) AIR 1979 SC 1791, held that a conspiracy may be a general one and a separate one, meaning thereby, a larger conspiracy and a smaller one which may develop in successive stages.

139. In K.R Purushothaman v. State of Kerala 2005 12 SCC 631 this Court held:

“11. Section 120-A IPC defines ‘criminal conspiracy’. According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.

***

13. … The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy.”

140. In State of Maharashtra v. Som Nath Thapa AIR 1996 SC 1744, this Court held:

“24. … to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended … the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use.”

(emphasis in original)

141. In State v. Nalini, this Court held:( & 569, paras 583 & 663)

“583. … (1) … Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.

***

(6) It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. …

(7) … Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. … there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. …

(8) … it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.

***

663. The agreement, sine qua non of conspiracy, may be proved either by direct evidence which is rarely available in such cases or it may be inferred from utterances, writings, acts, omissions and conduct of the parties to the conspiracy which is usually done. In view of Section 10 of the Evidence Act anything said, done or written by those who enlist their support to the object of conspiracy and those who join later or make their exit before completion of the object in furtherance of their common intention will be relevant facts to prove that each one of them can justifiably be treated as a conspirator.”

[See also Kehar Singh v. State (Delhi Admn.) AIR 1988 SC 1883.]

142. In Firozuddin Basheeruddin v. State of Kerala 2001 7 SCC 596, this Court held:(-27)

“23. Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state. … the law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the completed offence, conspirators may be tried and punished for both the conspiracy and the completed crime. The rationale of conspiracy is that the required objective manifestation of disposition to criminality is provided by the act of agreement. Conspiracy is a clandestine activity. Persons generally do not form illegal covenants openly. In the interests of security, a person may carry out his part of a conspiracy without even being informed of the identity of his co-conspirators.

***

25. Conspiracy is not only a substantive crime, it also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts.

26. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. …

27. Thus conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confréres.”

[See also State (NCT of Delhi) v. Navjot Sandhu State NCT of Delhi v. Navjot Sandhu, 2005 11 SCC 600.]

143. In Ram Narayan Popli v. CBI 2003 3 SCC 641 this Court held:

“342. … The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. The law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design.”

144. In Mohd. Khalid v. State of W.B 2002 7 SCC 334 this Court held:

“27. Where trustworthy evidence establishing all links of circumstantial evidence is available the confession of a co-accused as to conspiracy even without corroborative evidence can be taken into consideration.”

145. In the present case, the conspiracy might have been started in Dubai but ultimately it continued here in India and a part of the object was executed in India and even in the conspiratorial meetings at Dubai, the matter was discussed with respect to India and amongst Indian citizens. Further, as far as the present accused is concerned, the fact that he was constantly present at Al-Hussaini Building, where the major part of the plans had been made and executed, is established, and his active involvement has also emerged from the evidence on record as to how he was dealing with the so-called men of Tiger, managing the ill-gotten money of Tiger, booking tickets and actively working for confirming them for the conspirators. Further, there is enough evidence of meeting with the co-accused and his actively working in furtherance of the conspiracy. The present accused need not have been present at each and every meeting for being held to be a part of the conspiracy.

146. Section 10 of the Evidence Act further provides a unique and special rule of evidence to be followed in cases of conspiracy. Section 10 reads as under:

“10. Things said or done by conspirator in reference to common design.—Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.

Illustration

Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.

The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.”

147. It is to be seen that there are three conditions in Section 10. One is, before utilising the section for admitting certain statements of the co-accused from a confession, there should be a reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong. According to this section, only when this condition is satisfied in a given case, then only the question of utilising the statement of an accused against the co-accused can be taken into consideration. Thus, as per Section 10, the following principles are agreed upon unanimously:

147.1 There shall be prima facie evidence affording a reasonable ground for the court to believe that two or more persons were part of a conspiracy to commit a wrongful act or offence;

147.2 Once this condition was fulfilled, anything said, done or written by any of its members, in reference to their common intention, will be considered as evidence against other co-conspirators;

147.3 This fact would be evidence for the purpose of existence of a conspiracy and that the persons were a part of such conspiracy.

148. This Court, in Nalini, observed as under:

148.1 Per Thomas, J.

The theory of agency, according to him, is the basic principle which underlines Section 10 of the Evidence Act. He says that the first condition for application of Section 10 is “reasonable ground to believe” that the conspirators have conspired together based on prima facie evidence. If this condition is fulfilled, anything said by any of the conspirators becomes substantive evidence for the purpose of corroboration if the statement is in reference to their common intention. (This is much wider than its English counterpart which uses the expression “in furtherance of the common object”.) The arrest of a conspirator will not cut off his connection with the conspiracy.

148.2 Per Wadhwa, J. (concurring)

He was of the opinion that before considering the principle of Section 10 and applying it to the facts and circumstances, it is necessary to ascertain the period of conspiracy because any statement made before or after the conspiracy is thatched will not be admissible under the aforesaid section. It would also be relevant against a person who entered or left the time-frame during the existence of the conspiracy.

148.3 Per Quadri, J.

Two conditions are to be followed: firstly, reasonable ground to believe conspiracy, and secondly, conspiracy is to commit an offence or an actionable wrong. If both the conditions exist, then anything said or done can be used as a relevant fact against one another, to prove the existence of conspiracy and that the person was a party to it.

149. In the case on hand, the first condition for applying Section 10 of the Evidence Act is satisfied by the evidence of PWs 1 and 2 (approvers). There are 77 confessions in this case which are voluntary and are corroborated with the other circumstances of the case. These confessions contain statements inculpating the makers as well as the co-accused. A common charge of conspiracy was framed against all the co-conspirators including A-1. This is evident from the charges framed by the Special Judge which we have already extracted. On all the aforesaid charges, the appellant was found guilty by the Designated Court. The evidence in respect of A-1 is in the nature of the confessions made by the co-accused persons, the testimony of prosecution witnesses and documentary evidence on record.

150. The law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. In order to achieve the ultimate object, parties may adopt many means. Such means may constitute different offences by themselves, but so long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy. For an offence of conspiracy, it is not necessary for the prosecution to prove that conspirators expressly agreed to do an illegal act, the agreement may be proved by necessary implication. It is also not necessary that each member of the conspiracy should know all the details of the conspiracy. Conspiracy is a continuing offence. Thus, if any act or omission which constitutes an offence is done in India or outside its territory, the conspirators continue to be the parties to the conspiracy. The conspiracy may be a general one and a smaller one which may develop in successive stages. It is an unlawful agreement and not its accomplishment, which is the gist/essence of the crime of conspiracy. In order to determine whether the conspiracy was hatched, the court is required to view the entire agreement and to find out as to in fact what the conspirators intended to do.

151. Mr Jaspal Singh, learned Senior Counsel for A-1, submitted that from the evidence of PW 2 (approver), it is evident that various meetings were held on and from 2-2-1993 till 11-3-1993 at various places in and around Bombay. By taking us through the entire evidence of PW 2, he submitted that neither PW 2 nor any other co-accused nor even any independent witness/evidence spoke about the role of A-1, either being aware of the said meetings or being present in them or having any knowledge about what conspired in the said meetings.

152. Though the learned Senior Counsel has vehemently contended that A-1 was neither involved in arranging for landing of arms and ammunition nor in conducting surveys and choosing targets nor in filling vehicles with RDX and arms nor in the meeting held at Al-Hussaini Building, the specific instances as stated by various prosecution witnesses amply prove his involvement.

153. Apart from the evidence of PW 2, several accused persons in their confessional statements and other witnesses examined on the side of the prosecution clearly implicate A-1 and his involvement in all the events which we are going to discuss under various heads.

154. It also emerged from the prosecution evidence that conspiratorial meetings were also held on 6-1-1993 at Hotel Persian Darbar, Panvel which were attended by A-136, A-90, A-102, A-134 and Mohd. Dossa, (AA), middle of January 1993 at Dubai attended by A-14 and Tiger Memon (AA) and Dawood Ibrahim (AA) leading to the landing of arms and ammunition at Dighi Jetty and Shekhadi. These meetings formed the genesis of the conspiracy and it was at these meetings that meeting of minds occurred and knowledge was obtained by the co-conspirators and their intention was expressed to further the cause of the said conspiracy. Since we have elaborately discussed the constituents relating to the conspiracy, there is no need to refer to the same in subsequent appeals before us. It is also evident that a common charge of conspiracy was framed against all the accused persons. In view of the above, we are satisfied that the prosecution has placed sufficient acceptable materials to prove the charge of conspiracy beyond reasonable doubt which we will analyse in the later part of our judgment.

Confession

155. In this heading, we have to consider the confessions made by the accused and co-accused persons relied on by the prosecution. Before going into the acceptability or otherwise and merits of the claim made by both the parties relating to the confession of the accused and co-accused, it is useful to refer to the relevant provisions of the Code as well as TADA.

156. Section 164 of the Code speaks about recording of confession and statement which is as under:

“164. Recording of confessions and statements.—(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect—

‘I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

sd/-

A.B Magistrate.’

(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such a manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.”

157. Insofar as interpretation relating to Section 164 of the Code, particularly, recording of the same and procedures to be adopted, this very Bench in Dara Singh v. Republic of India 2011 2 SCC 490 after considering a large number of judgments on the issue laid down the following principles:

“(i) The provisions of Section 164 CrPC must be complied with not only in form, but in essence.

(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.

(iv) The maker should be granted sufficient time for reflection.

(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.

(vii) Non-compliance with Section 164 CrPC goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.

(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.

(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.

(x) Confession of a co-accused is a weak type of evidence.

(xi) Usually the court requires some corroboration from the confessional statement before convicting the accused person on such a statement.”

(See also Kalawati v. State of H.P AIR 1953 SC 131, Dagdu v. State of Maharashtra, Davendra Prasad Tiwari v. State of U.P 1978 4 SCC 474, Shivappa v. State of Karnataka 1995 2 SCC 76, Nalini, State of Maharashtra v. Damu 2000 6 SCC 269, Bhagwan Singh v. State of M.P 2003 3 SCC 21, Gurjinder Singh v. State of Punjab 2011 3 SCC 530, Surendar Koli v. State of U.P 2011 4 SCC 80, Kulvinder Singh v. State of Haryana 2011 5 SCC 258 and Inspector of Police v. John David 2011 5 SCC 509.)

Law relating to confessions under TADA

158. Similar provision is there in TADA, namely, Section 15 which reads as under:

“15. Certain confessions made to police officers to be taken into consideration.—(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or soundtracks from out of which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator for an offence under this Act or rules made thereunder:

Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused.

(2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily.”

The bracketed words “[or co-accused, abettor or conspirator]” and the proviso to Section 15(1) above were added by way of an amendment on 22-5-1993. The amendments to TADA dated 22-5-1993 were not only in respect of Section 15(1) TADA but also with respect to Section 21 TADA (Presumption as to offences under Section 3).

159. The unamended Section 21 is reproduced as under for ready reference:

“21. Presumption as to offences under Section 3.—(1) In a prosecution for an offence under sub-section (1) of Section 3, if it is proved—

(a) that the arms or explosives or any other substances specified in Section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of similar nature, were used in the commission of such offence; or

(b) that by the evidence of an expert the fingerprints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence; or

[(c) that a confession has been made by a co-accused that the accused had committed the offence; or

(d) that the accused had made a confession of the offence to any person other than a police officer,]**

the Designated Court shall presume, unless the contrary is proved, that the accused had committed such offence.

(2) In a prosecution for an offence under sub-section 3 of Section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume, unless the contrary is proved, that such person has committed the offence under that sub-section.”

(emphasis supplied)

160. Admissibility of confession against co-accused under Section 15 TADA was considered in Nalini. This Court, while considering the provisions of Section 15 TADA and Rule 15 of the Terrorist and Disruptive Activities (Prevention) Rules, 1987 (in short “the Rules”) held:

“89. … the confession of one accused as against a co-accused to be substantive evidence against the latter, and in the absence of proof to the contrary, the Designated Court would have full power to base a conviction of the co-accused upon the confession made by another accused.”

This Court further held:

“424. In view of the above discussions, we hold the confessions of the accused in the present case to be voluntarily and validly made and under Section 15 TADA confession of an accused is admissible against a co-accused as a substantive evidence. Substantive evidence, however, does not necessarily mean substantial evidence. It is the quality of evidence that matters. As to what value is to be attached to a confession will fall within the domain of appreciation of evidence. As a matter of prudence, the court may look for some corroboration if confession is to be used against a co-accused though that will again be within the sphere of appraisal of evidence.”

161. In Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, 2009 7 SCC 254 this Court held that it is no more res integra that a confession recorded under Section 15 is a substantive piece of evidence against the accused and co-accused. However, in case of co-accused, as a rule of prudence, the court would look upon corroborative evidence as well.

162. In Jayawant Dattatraya Suryarao v. State of Maharashtra Jayawant Dattatraya Suryarao v. State of Maharashtra, 2001 10 SCC 109 this Court considered in detail the evidentiary value and admissibility of a confessional statement recorded under Section 15 TADA and held that it is a settled legal position that a confessional statement recorded by a police officer is a substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator so long as the requirements of Section 15 and the TADA Rules are complied with. It was observed:

“60. (2) Confessional statement before the police officer under Section 15 TADA is substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator for an offence punishable under the Act or the Rules. The police officer before recording the confession has to observe the requirement of sub-section (2) of Section 15. Irregularities here and there would not make such confessional statement inadmissible in evidence. If the legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used as evidence, it would not be just, reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith is reposed.”

It was further held by this Court in Jayawant Dattatraya case that minor irregularities do not make the confessional statement inadmissible as substantive evidence and observed as under:

“50. In this view of settled legal position, confessional statement is admissible in evidence and is substantive evidence. It also could be relied upon for connecting the co-accused with the crime. Minor irregularity would not vitiate its evidentiary value.”

163. In Ravinder Singh v. State of Maharashtra Ravinder Singh v. State of Maharashtra, 2002 9 SCC 55 this Court, while considering the reliability of a confession recorded under Section 15 TADA against the maker, as well as the co-accused, held that after State v. Nalini, Kalpnath Rai v. State 1997 8 SCC 732 does not reflect the correct position of law. It was observed: (Ravinder Singh case)

“13. In Kalpnath Rai v. State it was observed that the confession made by one accused is not substantive evidence against a co-accused. It has only a corroborative value. In the present case, we are, however, primarily concerned with the confession made by the maker i.e the appellant himself. Besides this confession, there is also a confession made by co-accused Nishan Singh which too implicates the appellant in commission of the offence of the bomb blast in the train. The observations made in Kalpnath Rai case were considered in State v. Nalini, a decision by a three-Judge Bench. It was held that the confession recorded under Section 15 of the TADA Act is to be considered as a substantive piece of evidence not only against the maker of it but also against its co-accused. In this view, the observations in Kalpnath Rai case do not represent the correct position of law.”

(emphasis supplied)

It was further held in Ravinder Singh case that:

“17. It is thus well established that a voluntary and truthful confessional statement recorded under Section 15 of the TADA Act requires no corroboration. Here, we are primarily concerned with the confessional statement of the maker. The weight to be attached to the truthful and voluntary confession made by an accused under Section 15 of the TADA Act came to be considered again in a recent three-Judge Bench decision in Devender Pal Singh v. State (NCT of Delhi) Devender Pal Singh v. State NCT of Delhi, 2002 5 SCC 234. It was held in the majority opinion that the confessional statement of the accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the accused himself.

18. There can be no doubt that a free and voluntary confession deserves the highest credit. It is presumed to flow from the highest sense of guilt. Having examined the record, we are satisfied that the confession made by the appellant is voluntary and truthful and was recorded, as already noticed, by due observance of all the safeguards provided under Section 15 and the appellant could be convicted solely on the basis of his confession.”

164. In Mohd. Amin v. CBI Mohd. Amin v. CBI, 2008 15 SCC 49, it was observed:

“28. In Devender Pal Singh case the majority of a three-Judge Bench made a reference to Gurdeep Singh case Gurdeep Singh v. State Delhi Admn., 2000 1 SCC 498 and Nalini case and held that whenever an accused challenges the voluntary character of his confession recorded under Section 15(1) of the Act, the initial burden is on the prosecution to prove that all the conditions specified in that section read with Rule 15 of the Rules have been complied with and once that is done, it is for the accused to show and satisfy the court that the confession was not made voluntarily. The Court further held that the confession of an accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the accused himself. However, as a matter of prudence the court may look for some corroboration if confession is to be used against a co-accused though that will be again within the sphere of appraisal of evidence.

29. In Jameel Ahmed case Jameel Ahmed v. State of Rajasthan, 2003 9 SCC 673 a two-Judge Bench after discussing, considering and analysing several precedents on the subject, including Devender Pal Singh case, culled out the following propositions: (Jameel Ahmed case)

‘(i) If the confessional statement is properly recorded, satisfying the mandatory provision of Section 15 of the TADA Act and the Rules made thereunder, and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient to base a conviction on the maker of the confession.

(ii) Whether such confession requires corroboration or not, is a matter for the court considering such confession on facts of each case.

(iii) In regard to the use of such confession as against a co-accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

(iv) The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the TADA Rules which contemplates a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. However, the court considering the case of direct transmission of the confessional statement to the Designated Court should satisfy itself on facts of each case whether such direct transmission of the confessional statement in the facts of the case creates any doubt as to the genuineness of the said confessional statement.’

30. In Abdulvahab Abdul Majid Shaikh case Abdulvahab Abdul Majid Shaikh v. State of Gujarat, 2007 9 SCC 293 this Court rejected the argument raised on behalf of the appellant that the confession made by him cannot be treated as voluntary because the same had been retracted and observed:

‘9. … The police officer was empowered to record the confession and in law such a confession is made admissible under the provisions of the TADA Act. The mere fact that A-9 Musakhan alias Babakhan retracted subsequently is not a valid ground to reject the confession. The crucial question is whether at the time when the accused was giving the statement he was subjected to coercion, threat or any undue influence or was offered any inducement to give any confession. There is nothing in the evidence to show that there was any coercion, threat or any undue influence on the accused to make the confession.’

31. The ratio of the abovenoted judgments is that if a person accused of an offence under the Act makes a confession before a police officer not below the rank of Superintendent of Police and the same is recorded by the officer concerned in writing or on any mechanical device like cassettes, tapes or soundtracks from out of which sounds or images can be reproduced, then such confession is admissible in the trial of the maker as also the co-accused, abettor or conspirator not only for an offence under the Act but also for offence(s) under other enactments, provided that the co-accused, abettor or conspirator is charged and tried in the same case along with the accused and the court is satisfied that requirements of the Act and the Rules have been complied with. Whether such confession requires corroboration depends on the facts of the given case. If the court is convinced that the probative value of the confession is such that it does not require corroboration then the same can be used for convicting the maker and/or the co-accused under the Act and/or the other enactments without independent corroboration.”

(emphasis in original)

165. After considering the confessions of the accused in Mohd. Amin case, it was held as under:

“81. Therefore, keeping in view the provisions of Section 15 of the Act as interpreted by this Court in Gurprit Singh case Gurprit Singh v. State of Punjab, 2002 10 SCC 201, Nalini case, S.N Dube case S.N Dube v. N.B Bhoir, 2000 2 SCC 254, Lal Singh case Lal Singh v. State of Gujarat, 2001 3 SCC 221, Devender Pal Singh case and Jameel Ahmed case, we hold that the appellants are guilty of offence under Section 302 read with Section 120-B IPC and no independent corroboration is required for sustaining their conviction.”

166. In Jameel Ahmed v. State of Rajasthan, this Court held that Section 30 of the Evidence Act has no role to play in deciding the admissibility of a confession recorded under Section 15 TADA. The Court held that:

“23. … it is relevant to note that Section 15 of the TADA Act by the use of non obstante clause has made confession recorded under Section 15 admissible notwithstanding anything contained in the Evidence Act or the Code of Criminal Procedure. It also specifically provides that the confession so recorded shall be admissible in the trial of a co-accused for offence committed and tried in the same case together with the accused who makes the confession. Apart from the plain language of Section 15 which excludes the application of Section 30 of the Evidence Act, this Court has in many judgments in specific terms held that Section 30 of the Evidence Act has no role to play when the court considers the confession of an accused made under Section 15 of the TADA Act either in regard to himself or in regard to his co-accused.”

167. In Ahmed Hussein Vali, this Court, while relying upon Nalini, held that if the confession made by an accused is voluntary and true, then it is admissible against the co-accused as a substantive piece of evidence, and that minor and curable irregularities in the recording of the confession like omission in obtaining the certificate of competent office with respect to confession do not affect the admissibility of the said evidence. It was further observed in Ahmed Hussein case that:

“74. … As far as the admissibility of the confessional statement of A-27 is concerned with regard to his co-accused in this case, it is not vitiated because of the amendment and it is rightly used as a major evidence for the trial of his co-accused by the Designated Court. As this confessional statement was made complying with all the procedural essentials as provided for by the TADA Act and the Rules it can be a valid ground for the conviction when corroborated with the confessional statement of the other four accused, namely, A-1, A-2, A-3 and A-20 respectively which have been made prior to the amendment of the Act.”

168. The amendment, by Act 43 of 1993 which came into force from 22-5-1993 deleted clauses (c) and (d) to sub-section (1) of Section 21. This Court considered the effect of the amendment in Nalini, and observed as follows:

“698. … The effect of the said clauses was that in the event of the co-accused making confession inculpating the accused or in the event of the accused himself making an extra-judicial confession to any person other than a police officer, the legal presumption that the accused had committed such offence would arise.”

In the event of unamended TADA as it stood prior to 22-5-1993 were to apply, there would be a presumption of guilt against the appellant pursuant to unamended Section 21 since confession of the other co-accused would implicate the appellant for the offence of conspiracy. The amendment of 1993 did not bring about any change as to the admissibility and applicability of the confession of the co-accused.

Admissibility of confessions recorded under Section 15 TADA prior to the amendment

169. The learned Senior Counsel for A-1 submitted that as the amendment of Section 15 TADA under which the said confessional statements were purported to have been recorded was brought into effect from 22-5-1993, the said confessional statements could not be used to adjudge the appellant guilty inasmuch as all the said confessional statements were recorded prior to the date of amendment. He further stated that the said confessional statements were obtained pursuant to prolonged police custody of the said accused persons, therefore, the same cannot be said to have been obtained voluntarily and further cannot be said to be free from taint and were wholly unreliable. The learned Senior Counsel has finally submitted that as the said confessional statements were recorded prior to the date of amendment of Section 15 TADA, the same have to be tested against the touchstone of Section 30 of the Evidence Act under the general law.

170. The prosecution heavily relied on the confessional statements of co-accused persons, namely, Asgar Yusuf Mukadam (A-10), Abdul Gani Ismail Turk (A-11), Mohd. Rafiq alias Rafiq Madi Musa Biyariwala (A-46), Altaf Ali Mustaq Ali Sayed (A-67) and Mulchand Sampatraj Shah alias Choksi (A-97). It was submitted by the Senior Counsel for A-1 that all the said statements were recorded prior to the date of amendment of the TADA Act on 22-5-1993. Till the said amendment, the statement of an accused person was admissible only against him. However, the amended Section 15 TADA made the statement of an accused person admissible in evidence against a co-accused, an abettor and a conspirator. It was submitted by the learned Senior Counsel that as the recording of statement of A-10 was completed on 20-4-1993, A-11 on 18-4-1993, A-46 on 23-4-1993, A-67 on 19-4-1993 and A-97 on 19-5-1993 i.e before the date on which the said Section 15 TADA was amended and in the absence of express intention making the said amendment retrospective, the same will have to be taken as prospective, as a result whereof, the said statements cannot be used against the appellant and cannot be the basis of adjudging him guilty.

171. It was submitted by the learned Senior Counsel that the law is well settled that an amendment which is procedural in nature may be applied retrospectively but an amendment which not only changes the procedure but also creates new rights and liabilities has to be construed to be prospective in nature unless otherwise provided either expressly or by necessary implication. It was further submitted by the learned Senior Counsel that a procedural amendment that imposes new duties or creates new disabilities or obligations in respect of transactions already accomplished cannot be said to be retrospective in nature.

172. It was urged by the learned Senior Counsel that as the said confessional statements were recorded prior to the amendment of TADA i.e on 22-5-1993 and the said amendment cannot be said to be retrospective in nature, it does not necessarily mean that the same will have to be totally discarded rather they will have to be appreciated in the light of Section 30 of the Evidence Act and can be used to lend assurance to independent materials collected by the investigating agency but cannot be made the sole basis of adjudging the appellant guilty as has purportedly been done in the instant case.

173. With regard to the same, reliance was placed on the decision of this Court in State of Rajasthan v. Ajit Singh 2008 1 SCC 601, which held as under in paras 15 and 16:

“15. It has accordingly been emphasised that the statement made by the accused could be used one against the other. Mr Sodhi has however pointed out that the decision in Jameel Ahmed case had been rendered without noticing that the words in Section 15(1) of the Act (which have been underlined above) that is ‘or co-accused, abettor or conspirator’ had been inserted in the Act in 1993 and as such could not be retrospectively applied to an incident of 12-8-1991. He has also referred us to State (NCT of Delhi) v. Navjot Sandhu to submit that this issue had been specifically raised and while noticing the addition made in 1993 it had been observed that a confessional statement recorded under Section 15 would be sufficient to base a conviction on the maker of the confession but on the other proposition whether such a confession could be used against a co-accused was another matter. …

16. It is, therefore, clear that the Division Bench in Navjot Sandhu case clearly repelled the contention raised by the State counsel that a confession made by an accused could be used as against a co-accused.”

174. Reliance was also placed on the decision of this Court in Ganesh Gogoi v. State of Assam 2009 7 SCC 404. Paras 21 and 24 are relevant which read as under:

“21. It appears that in the instant case the charge which was framed by the court against the appellant was under Section 3(5) of the said Act. But such a charge could not have been framed against him by the court inasmuch as on the alleged date of occurrence i.e in September 1991, Section 3(5) TADA was not brought on the statute. The framing of the charge was thus inherently defective. …

***

24. … It is clear from the perusal of Section 3 and its interpretation in Hitendra Vishnu Thakur90 that the requisite intention is the sine qua non of terrorist activity. That intention is totally missing in this case. It is not there in the charge and it has also not come in the evidence. Therefore, both the framing of charges against the appellant under Section 3(5) and his conviction under Section 3(2)(i) of the said Act are totally bad in law.”

175. In State (NCT of Delhi) v. Navjot Sandhu this Court held as under:

“49. … It is, however, the contention of the learned Senior Counsel Shri Gopal Subramanium that Section 32(1) can be so construed as to include the admissibility of confessions of the co-accused as well. The omission of the words in POTA ‘or co-accused, abettor or conspirator’ following the expression ‘in the trial of such person’ which are the words contained in Section 15(1) TADA does not make material difference, according to him. It is his submission that the words ‘co-accused’, etc. were included by the 1993 Amendment of TADA by way of abundant caution and not because the unamended section of TADA did not cover the confession of the co-accused. According to the learned Senior Counsel, the phrase ‘shall be admissible in the trial of such person’ does not restrict the admissibility only against the maker of the confession. It extends to all those who are being tried jointly along with the maker of the confession provided they are also affected by the confession. The learned Senior Counsel highlights the crucial words ‘in the trial of such person’ and argues that the confession would not merely be admissible against the maker but would be admissible in the trial of the maker which may be a trial jointly with the other accused persons. Our attention has been drawn to the provisions of CrPC and POTA providing for a joint trial in which the accused could be tried not only for the offences under POTA but also for the offences under IPC. We find no difficulty in accepting the proposition that there could be a joint trial and the expression ‘the trial of such person’ may encompass a trial in which the accused who made the confession is tried jointly with the other accused. From that, does it follow that the confession made by one accused is equally admissible against others, in the absence of specific words? The answer, in our view, should be in the negative. On a plain reading of Section 32(1), the confession made by an accused before a police officer shall be admissible against the maker of the confession in the course of his trial. It may be a joint trial along with some other accused; but, we cannot stretch the language of the section so as to bring the confession of the co-accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences [vide the observations of Ahmadi, J. (as he then was) in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya 1990 4 SCC 76, SCC at p. 86, which were cited with approval in Kartar Singh case Kartar Singh v. State of Punjab, 1994 3 SCC 569]. We would expect a more explicit and transparent wording to be employed in the section to rope in the confession of the co-accused within the net of admissibility on a par with the confession of the maker. An evidentiary rule of such importance and grave consequence to the accused could not have been conveyed in a deficient language. It seems to us that a conscious departure was made by the framers of POTA on a consideration of the pros and cons, by dropping the words ‘co-accused’, etc. These specific words consciously added to Section 15(1) by the 1993 Amendment of TADA so as to cover the confessions of the co-accused would not have escaped the notice of Parliament when POTA was enacted. Apparently, Parliament in its wisdom would have thought that the law relating to confession of the co-accused under the ordinary law of evidence, should be allowed to have its sway, taking a cue from the observations in Kartar Singh case at para 255. The confession recorded by the police officer was, therefore, allowed to be used against the maker of the confession without going further and transposing the legal position that was obtained under TADA. We cannot countenance the contention that the words ‘co-accused’, etc. were added in Section 15(1) TADA, ex majore cautela.”

176. In Harjit Singh v. State of Punjab 2011 4 SCC 441 at para 14, it was held:

“14. … However, the submission is not acceptable as it is a settled legal proposition that a penal provision providing for enhancing the sentence does not operate retrospectively. This amendment, in fact, provides for a procedure which may enhance the sentence. Thus, its application would be violative of restrictions imposed by Article 20 of the Constitution of India.”

177. The learned Senior Counsel also placed reliance on the following decisions viz. Virtual Soft Systems Ltd. v. CIT 2007 9 SCC 665, Sanjay Dutt v. State Sanjay Dutt v. State, 1994 5 SCC 410, Hitendra Vishnu Thakur v. State of Maharashtra, Fairey v. Southampton County Council 1956 2 QB 439, Colonial Sugar Refining Co. Ltd. v. Irving 1905 AC 369, Athlumney, In re, ex p Wilson98.

178. The issue of admissibility of confessions recorded under Section 15 TADA prior to the amendment on 22-5-1993 has been dealt with in detail by the Designated Judge in paras 1 to 8 of Part 3 of the final judgment.

179. The issue of admissibility against the co-accused of the confessions recorded prior to the amendment in Section 15 TADA was considered by this Court in Nalini wherein this Court concluded that confessions recorded under Section 15 TADA are substantive evidence and are accordingly admissible not only against the maker but also against the co-accused charged and tried in the same case together with the accused. It was further held:

“416. The term ‘admissible’ under Section 15 has to be given a meaning. When it says that confession is admissible against a co-accused it can only mean that it is substantive evidence against him as well as against the maker of the confession.”

It was further observed:

“421. … Confession of the accused is admissible with the same force in its application to the co-accused who is tried in the same case. It is primary evidence and not corroborative.”

We are in entire agreement with the same. Accordingly, we hold that the confession of the co-accused, namely, A-10, A-11, A-46, A-67 and A-97 are admissible as primary and substantive evidence against the appellant (A-1) notwithstanding the amendment by Act 43 of 1993.

180. To sum up, it can easily be inferred that the position of law on the evidentiary value of confession is as under†*:

180.1 If the confessional statement is properly recorded satisfying the mandatory provision of Section 15 TADA and the Rules made thereunder, and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient to base conviction on the maker of the confession.

180.2 Whether such confession requires corroboration or not, is a matter for the court to consider on the basis of the facts of each case.

180.3 With regard to the use of such confession as against a co-accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

180.4 The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement.

180.5 The requirement of sub-rule (5) of Rule 15 of the Rules which contemplates a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. However, the court considering the case of direct transmission of the confessional statement to the Designated Court should satisfy itself on the facts of each case whether such direct transmission of the confessional statement creates any doubt as to the genuineness of the said confessional statement.

181. Since we have elaborately discussed the contention raised by the learned Senior Counsel relating to the admissibility or otherwise of the confessional statements, there is no need to refer to the same in subsequent appeals before us.

182. In light of the above principles, let us discuss the confessions made by the co-accused persons.

(i) Confessional statement of Asgar Yusuf Mukadam (A-10)

183. The confessional statement of A-10 (Exts. 858 and 858-A) was recorded by Mr K.L Bishnoi (PW 193), the then DCP which referred to A-1 as under:

“(1) A-1 is the younger brother of Tiger Memon.

(2) When A-10 had telephoned at Tiger's residence, Yakub Memon (A-1) attended the call and asked him to come and meet him. On 10th/11th February, at his residence, A-1 handed over three tickets for Dubai and three passports to A-10 asking him to pick up Parvez Qureshi (A-100), Farooq (A-16) and Salim from Midland Hotel, hand over the said tickets and passports to them and drop at the airport by taxi which was duly performed by the confessing accused. The next day Tiger asked him to come and meet him. When he went to see Tiger, he was ready to go to the airport. At the airport, Tiger told him that he should stay in touch with A-1 and in case of requirement of money he should get the money from Choksi and give it to him.

(3) On 13th February, he directed the confessing accused to collect Rs 1 crore from Choksi for him which was done by the confessing accused with the help of co-accused Gani (A-11), Parvez (A-12), Mohd. Hussain, Salim and Anwar (AA).

(4) On 17-18th February, Yakub Memon directed the accused to remain with Rafiq Madi (A-46). Next day the accused and Rafiq Madi picked up Irfan Chougule (absconding) from Mahim and Shahnawaz and his companion from Bandra Reclamation and dropped them at the airport.

(5) On return to Tiger's residence, Yakub directed the confessing accused to talk to Tiger on phone (during the telephonic talks Tiger pulled up the deponent accused for not having contacted him on phone).

(6) On 9th March, he directed the confessing accused to transfer Rs 25 lakhs by transferring the same from Tiger's account to Irani's account and transfer Rs 10 lakhs to Ohalia's account which was done by the accused by contacting Choksi (A-97) on phone.

(7) In the morning, on 10th March, he again asked the confessing accused to transfer Rs 21 lakhs from Tiger's account to Irani's account which was duly got done by the deponent accused by instructing Choksi (A-97) on phone accordingly.”

(ii) Confessional statement of Abdul Gani Ismail Turk (A-11)

184. The confessional statement of A-11 (Exts. 818 and 818-A) was recorded by Mr P.K Jain (PW 189) which stated as under:

(1) “On 27th/28th January, A-1 was present at Al-Hussaini Building with co-accused Tiger, Anwar, (AA), Rafiq Madi (A-46), Imtiyaz (A-15), Parvez, Rahim (A-52) when the said co-accused left for Mhasla after taking the meals.

(2) On 7-3-1993, he was present in Al-Hussaini Building with Tiger, Shafi, Essa (A-3), Rahim (A-7) wife of A-1, A.R Memon (A-5) (since deceased), father of A-1 and Hanifa Memon (A-6), mother of A-1, when co-accused Gani visited Al-Hussaini.”

(iii) Confessional statement of Mohd. Rafiq Moosa Biyariwala (A-46)

185. The confessional statement of A-46 (Exts. 867 and 867-A) was recorded by Mr K.L Bishnoi (PW 193) which referred to the appellant as follows:

(1) “A-1 is the younger brother of Tiger Memon.

(2) He used to drive Tiger's blue Maruti 800 for attending business activities.

(3) On 8th/9th February, he handed over Rs 50,000 to Rafiq (A-46) which were made over to Altaf Passportwala by the latter.

(4) On 10th/11th February, he got the VIP suitcases taken out of the jeep in his garage through Anwar and he took the same to his house upstairs.

(5) On 13th February, he got the jeep after repairs brought to Meharbux's residence through the accused and Anwar.

(6) Between 14th/15th February, he got the brown-coloured round objects from the secret cavities of the jeep filled into three VIP suitcases which he got transported away from his garage by red Maruti van by Altaf (A-67).

(7) Next day, he handed over Rs 62,000 or Rs 63,000 to the accused to be given to Altaf.

(8) On 17th February, he handed over five passports and tickets to Anwar for Yeda Yakub and others for their departure to Dubai.

(9) Next day, on his directions, the accused dropped Irfan Chougule, Asgar and Shahnawaz at the airport for their departure to Dubai.

(10) On 14th, he was given Rs 4 lakhs by the accused after collecting the said amount from Choksi (A-97).”

(iv) Confessional statement of Altaf Ali Mustaq Ali Sayed (A-67)

186. The confessional statement of A-67 (Exts. 819 and 819-A) was recorded which referred to the appellant as under:

“(1) In the presence of Yakub Memon, Amjad (A-68) told Altaf that the goods belonging to Yakub are to be shifted to some other places as these got burnt in the riots.

(2) Yakub Memon asked accused Altaf Ali about whether the bags had been delivered to him by Amjad.

(3) Yakub Memon arranged for tickets for some co-accused through accused Altaf Ali by sending money and passport through accused Rafiq Madi.

(4) Yakub Memon sent three bags through Rafiq Madi to accused Altaf Ali for safe keeping. The bags contained arms/ammunition.

(5) Yakub instructed Altaf Ali over phone for sending the bags to Al-Hussaini Building i.e residence of Yakub Memon and his family members.

(6) Earlier, Yakub Memon had asked Altaf Ali to keep the bags since he was giving so much business. When Altaf Ali told Yakub that he may be implicated, Yakub replied that he need not worry.”

(v) Confessional statement of Mulchand Sampatraj Shah alias Choksi (A-97)

187. In his confessional statement, he narrated the role of A-1 as follows:

“It was emerged that Tiger Memon had a hawala account with him and in the said account, which was opened in November 1992, a sum of Rs 1,89,78,000 was deposited by A-26 Raju Laxmichand Jain alias Raju Kodi from November 1992 to December 1992. A-26, in his confessional statement, admitted having deposited the said amount in the account of Tiger Memon with A-97. A-10 Asgar Yusuf Mukadam has also stated in his confession about handling some transaction from the said account.”

188. In pursuance of the said disclosure, PW 513, in the presence of Pandharinath Ganpat Hanse (PW 70) recovered two chits i.e Articles 247 and 247-A from a diary in a pouch (Art. 248) vide panchnama, Ext. 373 which was found in the cupboard of Room No. 604, 6th Floor, Rajender Vihar, Guilder Lane, Grant Road, Bombay. The writings mentioned on the said two chits corroborate the figures given by A-97 in his confessional statement. The amounts deposited/withdrawn on the said two chits if seen in light of confessional statements of co-accused i.e A-10, A-26 and A-46 were the amounts deposited/withdrawn by accused Tiger Memon through his men on various dates.

189. A perusal of the above recitals in the form of confessional statements clearly establish the fact that Tiger had an account with A-97 in which various amounts totalling to Rs 161.48 lakhs were deposited by A-26 at the behest of Tiger Memon (AA) and which was also being controlled by A-1.

190. On 12-2-1993, at the time of departure to Dubai, Tiger Memon told A-10 that he should remain in touch with A-1 and in case of need of money by A-1, arrange the same from A-97. Tiger Memon further asked him to bring Rs 5 lakhs from A-97 and to pay the same to Sharif Abdul Gafoor Parkar alias Dadabhai (A-17) on account of landing charges. Accordingly, A-10 along with Parvez Nazir Ahmed Shaikh (A-12) brought the money from A-97 and paid it to A-17 at his residence. From the above, it can safely be inferred that the account maintained with A-97 by Tiger Memon was being used for meeting the expenses incurred for achieving the objects of criminal conspiracy and A-1 was handling it through other co-conspirators.

191. The confessional statements of A-10, A-11 and A-46 clearly reveal that the relevant role of collecting money was played by A-10 at the behest of A-1. In the said context, the material contained in the confession of A-10 that Tiger Memon while leaving for Dubai had told him to remain in touch with A-1 and having further said that in the event of A-1 requiring any money then he should collect the same from A-97 clearly reveals that A-1 himself having not collected the money from A-97 but he was handling it through other conspirators. The said matter is further clear from the confession of A-10 which reveals that when A-1 told him to bring an amount of Rs 1 crore from A-97, the manner in which the said amount was brought by A-10 by going to the house of A-97 along with A-11, A-12 and two more persons. The further materials in the confession of A-10 regarding the transaction of Rs 25 lakhs and Rs 10 lakhs effected on 9-3-1993 clearly reveals that the account of Tiger Memon was operated by A-1 through A-10. The same is also clear after considering the manner in which the transaction had taken place on 10-3-1993 by A-1.

192. It has come in the confessional statement of A-67 that A-1 had asked him to book air tickets to Dubai, and he agreed to do the same. It has also come in the confession of A-67 that he had booked around 10-12 tickets to Dubai at the instance of A-1 and A-46 used to bring the money for the same. From the above, it is evident that A-67 agreed to book the tickets to Dubai at the instance of A-1 and for which A-46 used to bring the cash. Further, from a perusal of the confessional statement of A-46, it is clear that on 8th/9th February, A-1 gave him Rs 50,000 for giving it to A-67 and he accordingly delivered the same to him. It has also come in the confession of A-46 that on 14th/15th February, he, along with A-10 brought Rs 4 lakhs from A-97 and gave the same to A-1. On 14th/15th February, he was given Rs 62,000-Rs 63,000 by A-1 to be delivered to A-67 which he, accordingly, delivered.

193. From the above recital of the confessional statement of A-46, it is evidently clear that out of Rs 4 lakhs i.e the amount which was brought by A-46 and A-10 from A-97 at the instance of A-1, Rs 62,000—Rs 63,000 were given to A-67 by A-46. It is also clear from the confession of A-67 that it was A-46 who used to bring the cash for the tickets he was booking for A-1 to Dubai. Asif Sultan Devji (PW 341) and Massey Fernandes (PW 311) have deposed about the booking of 12 tickets and 1 ticket respectively at the instance of A-67. A-67, in his Section 313 CrPC statement had admitted having booked the tickets to Dubai through the said witnesses.

194. Mohd. Usman Ahmed Jan Khan (PW 2), the approver, (about acceptability or reliability, we shall consider it in a separate heading) categorically stated that A-1, at the instance of Tiger Memon, handed over air tickets to Javed which were of Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Salim Rahim Shaikh (A-52), Mohd. Farooq Mohammed Yusuf Pawale (A-16), Zakir Hussain Noor Mohammed Shaikh (A-32), Salim Mujahid besides PW 2. It has also come in the confession of A-10 that on 9-3-1993, at the instance of A-1, A-10 got transferred Rs 25 lakhs from Tiger's account with A-97 to Irani's account and Rs 10 lakhs to Ohalia's account. Even on 10-3-1993, Rs 21 lakhs were transferred to the account of Irani from Tiger's account at the instance of A-1 by A-10.

195. The timing of these transfers, if seen in the context of activities being carried out contemporaneously, was for meeting the expenses for achieving the objects of the conspiracy, to meet the expenses incurred for ticketing of the co-conspirators and also to meet the expenses to be incurred during that period. As far as Tejarath International is concerned, it has come in the evidence of S.P Udyawar (PW 441) that at the instance of A-1, in January/March 1993, he booked tickets to Dubai for the following persons viz. Dawood alias Dawood Taklya Mohammed Phanse alias Phanasmiyan (A-14) Abdul Razak Memon (A-5), Hanifa Abdul Razak Memon (A-6), Yakub Abdul Razak Memon (A-1), Rahin Yakub Memon (A-7), Essa alias Anjum Abdul Razak Memon (A-3), Yusuf Abdul Razak Memon (A-4) and Tiger Memon (AA) vide Ext. 1421. PW 441 had categorically stated that the tickets booked by him were collected by a person from Tejarath International sent by A-1. Besides this, Ext. 1192 shows booking of tickets for A-49, A-98, A-94, A-39 and A-14. Ext. 1192 is a statement of Tejarath International maintained by the firm of PW 441.

196. The confessional statement of A-67 to the effect that in the second week of February, A-1 asked him to book tickets to Dubai, which he agreed to and he also admitted having booked 15-16 tickets for A-1 to Dubai in February 1993 and received money from A-46 for the same in the second week of February, 1993 itself, the time when the co-accused went to Dubai and then for training to Pakistan. The confessional statement of A-46 also shows payment of a sum of Rs 50,000 on 8th/9th February and Rs 62,000-Rs 63,000 on 14th/15th February by A-1 to be given to A-67.

197. The admission of A-67 in Section 313 CrPC statement is also evident from the booking of tickets to Dubai through PW 341, who was running a travel agency by the name of M/s ABC Travels and Massey Fernandes (PW 311) was working with Hans Air Services (P) Ltd. PW 341 deposed about booking 12 tickets for A-67 and the bills which were marked as under:

“Ext. 1246 — For booking to Dubai on 11-2-1993 for A-100, A-32, Javed Chikna and Mohd. Tainur Phansopkar.

Ext. 1247 — For 12-2-1993, for Javed Dawood Tailor.

Ext. 1248 — Emirates flight for 17th February, for Yeda Yakub, Anwar Theba, Bashir Ahmed Khan, Nasir Dakhla (A-64), Gul Mohammed (A-77) and Abdul Ahmed.

Ext. 1243 — On 11-2-1993 for Shahnawaz Abdul Kadar Qureshi (A-29) and Irfan Chougule.”

198. A-10, in his confession has stated that on 10th/11th February, A-1 gave three tickets and three passports and asked him to drop A-100 and A-16 to the airport. It is pertinent to note here that Ext. 1246 shows the booking of A-100 to Dubai on 11-2-1993. The said booking was done at the behest of A-67 who did it at the instance of A-1. A-46, in his confession stated that Javed Chikna (AA) accompanied Tiger to Dubai on 12-2-1993. Ext. 1247 shows the booking of Javed Dawood Tailor to Dubai for 12-2-1993 by Emirates Airlines. Immigration Officer (PW 205) stated that Javed Dawood Tailor left India by Emirates on 12-2-1993.

199. Further, in the confessional statement of A-46 it has come that on 17-2-1993, A-1 called Anwar Theba (AA) and handed over five passports and five tickets. Anwar asked A-46 to drop him and others at the airport for going to Dubai. Accordingly, he dropped Bashir, Gul Mohammed (A-77), Anwar Theba and Yeda Yakub. He also saw A-64 at the airport and all five of them left for Dubai. Ext. 1248 shows the booking of these persons for Dubai on 17-2-1993 by Emirates Airlines. Thus, this booking was done by A-67 at the instance of A-1. Immigration Officer (PW 221) stated that the abovementioned persons left by Emirates Airlines.

200. It has come in the confession of A-46 that A-1 had given him three passports and three tickets for dropping three persons at the airport. Accordingly, A-46 and A-10 dropped A-29, Irfan Chougule and one more person at the airport. Confessional statements of A-36 and A-29 show that he was the person who travelled with them. A-10 in his confession corroborates with A-46. Ext. 1243 shows the booking of A-29 and Irfan Chougule by Air India for going to Dubai. PW 197 stated that Irfan Chougule left by Air India on 18-2-1993. Passport of A-29 (Ext. 1731) shows his departure on 18-2-1993.

201. From the above, it is clear that the tickets booked by A-67 at the behest of A-1 were for the co-accused persons mentioned above, who first went to Dubai and, subsequently, to Pakistan for weapons' training as revealed in their confessional statements and evidence of PW 2. The above confessional statements by the co-accused/conspirators would show that A-1 was playing a key role in furtherance of the abovesaid conspiracy.

202. The funds of Tejarath International were also used for achieving the object of criminal conspiracy. It has come in the evidence of PW 441 that at the instance of A-1, he booked tickets for Dubai in January/March 1993 as under:

“Ext. 1421 — A-14, 18-1-1993 (Dawood Phanse)

Ext. 1422 — A-5, A-6, A-4

Ext. 1423 — A-7, A-3, A-1, March 1993

Ext. 1424 — Tiger Memon”

PW 441 had categorically stated that the tickets booked by him were collected by a person from Tejarath International sent by A-1. Besides this, Ext. 1192 shows booking of tickets for A-49, A-98, A-94, A-39 and A-14 which is a statement of Tejarath International maintained by the firm of PW 441. From the evidence of PW 441, it is clear that A-1 was managing the affairs of Tejarath International and had booked tickets on its account with the firm of PW 441. In light of the evidence of PW 441 about the reservation card of the firm and booking of tickets by A-1 in the account of Tejarath International coupled with the confession of the co-accused viz. A-14, A-94, A-49 and A-39 regarding their visits to Dubai during the relevant time, it is clear that A-1 had booked air tickets for the co-conspirators.

203. Vijayanti B. Dembla (PW 313) from East West Travels had deposed that he had been introduced by Samir Hingora (A-53) to Tiger Memon and was organising tickets for Tiger since March 1992. He named Nitin K. More (PW 310), who used to collect tickets on behalf of Tiger Memon. The prosecution has examined PW 310 and shows that it was A-1 who was booking tickets and would send his employee to collect the same from East West Travels. He is a convincing witness for the fact that A-1's firm office was burnt in the riots and that he had started working from his residence at Al-Hussaini Building. It is relevant to mention that practically there was no cross-examination of the witness.

204. It has come in evidence (confessional statements of A-67 and A-46) that four suitcases were kept in the jeep which was parked in the residential premises of Amjad Ali Meharbux (A-68, since discharged) by A-11 and Anwar Theba (AA) at the instance of A-1. Subsequently, A-67 took away the suitcases and kept them in his office at the instance of A-1. Later, A-46 brought three more suitcases and kept them at the office of A-67. Out of the total seven suitcases, A-67 delivered five suitcases to A-1 at Al-Hussaini Building. Thus, two suitcases remained in his possession. It has further been disclosed by A-67 that due to the involvement of A-1 in the matter, he kept the said suitcases at the residence of Mohd. Hanif (PW 282).

205. After the arrest of A-67, he made a disclosure under Section 27 of the Evidence Act and led the police and pancha (PW 37) to the residence of Mohd. Hanif from where the following articles were recovered and taken into possession vide panchnama, Ext. 109:

(a) One suitcase (Article 42) was found containing 65 hand grenades and 100 electronic detonators.

(b) One VIP suitcase (Article 43) was found containing 40 hand grenades and 50 electronic detonators. During the examination of Akbar Khan Abu Sama Khan (dead) (PW 37) in the court only 85 hand grenades were found in the two suitcases which were marked as Articles 44 to 84 and one hand grenade which was sent to FSL was marked as Article 45.

(c) The in-charge of the storeroom of CID, Crime Branch, P.I Pargunde has submitted the details of disposal in respect of remaining 20 defused hand grenades to the court. The recovered articles were forwarded to FSL and its report (Ext. 2439) proves the nature of articles recovered.

(d) Out of 150 electronic detonators, one is marked Article 46 (one) to (three) and the remaining 149 were forwarded to the Bomb Detection and Disposal Squad (BDDS) for defusal.

206. It is clear from the confession of A-67 that four bags were given to him at the first occasion which were containing ammunition, etc., by discharged accused Amjad Ali Meharbux at the instance of A-1. On the second occasion, A-46 had delivered three more suitcases to A-67 and on being asked, A-46 stated that the suitcases were containing round bombs, etc. Thus, A-67, in all had received seven bags from A-1 which contained arms/ammunition, etc. A-67, thereafter, returned five bags to A-1 that included four bags which were received on the first occasion and one of the three bags received on the second occasion. Thus in all, there remained two bags with A-67 which were recovered by PW 506. These facts were stated by A-67 in his confessional statement which has since been exhibited and read in evidence as substantive evidence. Moreover, the confessional statement of A-67 corroborated the evidence of PW 37, PW 506 and PW 282.

207. A-46, in his confessional statement, also stated about the delivery of three suitcases to A-67 by A-1, but there is a small discrepancy about the manner of receipt of three suitcases by A-67 wherein he stated that A-46 had delivered three suitcases to A-67. The manner of delivery of 3 suitcases is not of much importance, as it has clearly come in the confession of A-67 in respect of delivery of bags at the instance of A-1 and the subsequent recovery of two suitcases at the instance of A-67 which contained 105 hand grenades and 150 electronic detonators.

208. In the confessional statement of A-46, it was mentioned that on 13-2-1993 he along with Anwar Theba (AA) went to the residence of Amjad Ali Meharbux (since discharged). Accordingly, both of them brought the said jeep to Al-Hussaini Building and Anwar Theba went up and handed over the key of the jeep to A-1. On 14-2-1993/15-2-1993, when A-46 was present at Al-Hussaini Building along with Anwar Theba (AA), A-1 called Anwar upstairs and after sometime Anwar came down along with three suitcases. He also brought the key of a jeep kept inside the garage and Anwar Theba asked A-46 to unscrew the bolts of the floor of the jeep. A-46 accordingly unscrewed the bolts of the floor and when he was about to lift the floor, he was asked by A-1 to go to the office of A-67. He immediately went to the office of A-67 and when he found that A-67 was not there, he informed A-1 accordingly. At that time, A-46 saw that Anwar Theba was filling something in the said suitcases which was of light green colour and round in shape. At that time, A-1 asked A-46 to stand outside the garage and watch the movements of the people. He was apparently sent outside by A-1 so that he could not see the contents which were being filled in the suitcases. He was again sent by A-1 to see whether A-67 was available. Accordingly, he went to the office of A-67 and as A-67 was not present, he came back to Al-Hussaini. At that time, he saw A-67 keeping the said suitcases in his Maruti van. In the light of the evidence on record, it is clear that A-1 was in possession of hand grenades and electronic detonators which were concealed in the jeep and which were delivered to A-67 in three suitcases by A-1 through A-46.

209. PW 87, who was the driver working for Abdul Razak Suleman Memon (A-5), has deposed that A-5 was having four vehicles, namely, red Maruti van, blue Maruti car, white-coloured Maruti car and one red-coloured Maruti 1000. He also stated that A-5 was staying at 5/6th floor of Al-Hussaini Building along with his wife, daughters-in-law and sons, namely, Essa alias Anjum Abdul Razak Memon (Anjumbhai) (A-3), Yusufbhai (A-4) and Ayubbhai (AA). He also stated about taking his blue-coloured Maruti car to a service station opposite to Paradise Talkies on 2-3 occasions. He also identified his signatures (Exts. 444 and 445) on the bills (Exts. 444-A and 445-A) respectively. These signatures were affected by him at the time of taking the car for servicing. The said witness did not fully support the prosecution and was declared hostile.

210. PW 630, who was the Manager of Hind Automobile and Co., deposed that he had issued Exts. 444-A and 445-A to the driver who brought the Maruti car bearing No. MP 09 H 0672 for servicing on 3-1-1993 and 23-2-1993 respectively. He also stated that he had written the name of the owner of the car and the car number on the said bills on the basis of the information given by the driver who brought the car for servicing on the said two occasions. It is pertinent to note here that the driver who brought the vehicle for servicing was PW 87 as evident from his signatures on Exts. 444 and 445. Exts. 444-A and 445-A show that A-1 was mentioned as the owner of Vehicle No. MP 09 H 0672.

211. It has been proved that the said Maruti car of blue colour was planted at Bombay Stock Exchange which exploded at 0330 hrs killing 84 persons, injuring 217 persons and causing loss to property worth Rupees 5 crores. The number plate (Article 227) bearing No. MP 09 H 0672 was seized from the place of occurrence by Vipul Manubhai Vyas, Deputy Project Manager, Bombay Stock Exchange (PW 86). Engine No. F/8.BIN703676 and Chassis No. 481528 was seized by PW 86 and PW 370 respectively.

212. It is also evident that the Maruti 800 car bearing No. MP 09 H 0672 was purchased by Shafi Zariwala (AA) in the beginning of 1992 through Suleman Mohammed Lakdawala (PW 365), Shakeel S. Hasan (PW 366), Roopak Madanlal Malik (PW 628), Atmaram Ramchandra (PW 642), Rajkumar Kamal Chand Jain (PW 649) and this Maruti car was used to blast the Bombay Stock Exchange Building. Ultimately, this car was used by Tiger Memon and A-1 for explosion. This is evident from the evidence of PWs 87 and 630. It also finds mention in the confessional statement of A-46 that A-1 was using a blue-coloured Maruti car.

213. From the above, the following conduct of the appellant (A-1) along with the co-conspirator family members may be relevant:

213.1 At the time of blast, they all were living together in Dubai.

213.2 After the blasts, the Memons' fled to Pakistan from Dubai.

213.3 Their conduct of living together after fleeing from Bombay and not providing information about these blasts to the authorities concerned at Indian Embassy proves that the members of the Memon family were also co-conspirators in committing the said bomb blasts. With all the activities going on at Al-Hussaini Building, on the eve of blasts, the members of Memon family were aware of the activities.

213.4 They never disclosed the connection of Tiger Memon with the blasts to anybody.

213.5 In Pakistan, they had obtained Pakistani passports and national identity cards in assumed names.

213.6 They had acquired properties, started a business in the name and style of M/s Home Land Builders, acquired fictitious qualification certificates, driving licences, etc. to lead a comfortable life all of which will show that they have chosen a comfortable life in Pakistan after causing blasts in Bombay and were determined not to return to India in their original identity.

213.7 They failed to appear before the court in spite of issuing of proclamation and the same being widely published.

213.8 Instead of surrendering, they travelled to Bangkok and Singapore from Karachi for holidays in assumed names on Pakistani passports during April 1993.

213.9 They had not taken any steps to surrender before the Indian authorities or Thailand authorities on their arrival to Bangkok and Singapore.

213.10 Nor had they made any attempt to return to India.

213.11 Large amount of jewellery and cash was abandoned by the Memons at Al-Hussaini Building when they hurriedly left Bombay just before the blasts.

213.12 Further, recovery from the walls/portions of the lift at Al-Hussaini Building of RDX remnants on 22-3-1993 establishes the case of the prosecution of the activities being carried out by the appellant and the co-conspirators at the said place.

214. Apart from the above confessional statements and evidence, nine Indian passports and seven Pakistani passports belonging to the members of Memon family including the appellant which were found with A-1 were also seized by H.C Singh (PW 474), SP-STF, Delhi, CBI from his person at the time of arrest. A series of other documents were also seized from the appellant like a Pakistani driving licence, Pakistani identity card, chits having numbers of Karachi residents, address book, Pakistani computer education certificate and Pakistani national tax number certificate in favour of Home Land Builders.

215. The evidence of Kanjira Parambil (PW 473), Consulate General of India at Karachi further established that all the Pakistani passports (13 in number) including the one seized from A-1 are passports issued genuinely by the Pakistan Government. On perusal of the entries in the passports seized from the appellant (A-1), the following facts emerge:

(a) Indian Passport No. M-307804 in respect of A-1 establishes that A-1 left Dubai on 17-3-1993 and there is no arrival stamp of any country available on the said passport.

(b) Pakistani Passport No. AA-763242 in respect of Yusuf Ahmed Mohammed shows that the said passport holder left Karachi on 17-4-1993 and reached Bangkok on the same day. Again, the said passport holder left Bangkok on 29-4-1993. The passport holder left Karachi on 20-6-1994 and reached Dubai on the same day. Again, the passport holder left Dubai on 28-6-1994 but there is no entry stamp showing his arrival at any place. After seeing the Pakistani as well as Indian passports, it can be seen that Yusuf Ahmed Mohammed and A-1 are the same persons.

(c) Pakistani Passport No. AA-763651 in respect of Aftab Ahmed Mohammed (A-2) shows that the passport holder left Karachi on 16-4-1993 and reached Bangkok on 16-4-1993 itself. The said person left Bangkok on 27-4-1993. There is no arrival stamp of any country on the said passport. The said person again left Karachi on 17-6-1994 and entered Dubai on the same day. The said person left Dubai on 3-7-1994. Again, the said person left Karachi on 9-7-1994 and entered Dubai on 9-7-1994 itself. Again, the said passport holder left Dubai on 25-8-1994 and entered India on 25-8-1994 itself.

(d) Pakistani Passport No. AA-763650 in respect of Akhtar Ahmed Mohammed shows that the said passport holder left Karachi on 16-4-1993 and reached Bangkok on 16-4-1993 itself. The said passport holder left Bangkok on 27-4-1993. There is no arrival stamp of any country on the said passport. The said passport holder again left Karachi on 17-6-1994 and reached Dubai on 17-6-1994 itself. Again, the said passport holder left Dubai on 25-8-1994 and reached India on 25-8-1994 itself.

(e) Indian Passport No. C-340734 in respect of Yusuf Abdul Razak Memon (A-4) shows that the said person left Bombay on 11-3-1993 and reached Dubai on 11-3-1993. Further, he left Dubai on 17-3-1993. However, there is no arrival stamp of any country on the said passport.

(f) Pakistani Passport No. AA-763654 in respect of Imran Ahmed Mohammed reveals that the said passport holder left Karachi on 17-4-1993 and reached Bangkok on the same day. The said passport holder left Bangkok on 29-4-1993. There is no arrival stamp of any country on the said passport. Again, the said passport holder left Karachi on 20-6-1994 and entered Dubai on 20-6-1994 itself. The said passport holder left Dubai on 28-6-1994. There is no arrival stamp of any country on the passport. Again, the said passport holder left Karachi on 25-7-1994 and reached Dubai. The said person left Dubai on 10-8-1994 and re-entered Dubai on 11-8-1994. Again, the passport holder left Dubai on 25-8-1994 and arrived at New Delhi on 25-8-1994. From the Indian passport of Yusuf Abdul Razak Memon and Pakistani passport in respect of Imran Ahmed Mohammed, it is clear that Imran Ahmed Mohammed and Yusuf Abdul Razak Memon are the same persons.

(g) Indian Passport No. C-013120 in respect of Abdul Razak Memon (A-5) (dead) shows that the said person left Dubai on 17-3-1994 and there is no arrival stamp of any country after that. From the Indian passport and Pakistani passport, it is clear that Abdul Razak Memon and Ahmed Mohammed are the same persons.

(h) Pakistani Passport No. AA-763649 in respect of Ahmed Mohammed shows that the said passport holder left Karachi on 25-7-1994 and entered Dubai on the same day itself. The said passport holder left Dubai on 10-8-1994 and re-entered Dubai on 11-8-1994. Again, the said passport holder left Dubai on 25-8-1994 and reached India on 25-8-1994 itself.

(i) Indian Passport No. C-013796 in respect of Hanifa Abdul Razak Memon (A-6) shows that she left Dubai on 17-3-1993 and there is no arrival stamp of any country on the said passport.

(j) Pakistani Passport No. AA-763645 in respect of Zainab Ahmed Mohammed shows that she left Karachi on 25-7-1994 and reached Dubai on the same day itself. She again left Dubai on 10-8-1994 and re-entered Dubai on 11-8-1994. She again left Dubai on 25-8-1994 and entered India on 25-8-1994 itself. From the Indian passport and Pakistani passport, it is clear that Zainab Ahmed Mohammed and Hanifa Abdul Razak Memon are the same persons.

(k) Indian Passport No. N-307801 in respect of Rahin Yakub Memon (A-7) shows that she left Bombay on 11-3-1993 and reached Dubai on 11-3-1993 itself. She left Dubai on 17-3-1993 and there is no arrival stamp of any country on the said passport.

(l) Passport No. T-0-780 in respect of Rahin Yakub Memon shows that Rahin Yakub Memon reached Delhi on 5-9-1994 on the said passport.

(m) Indian Passport No. C-672378 in respect of Rubina Suleman Memon (A-8) shows that she left Dubai on 20-3-1993. There is no arrival stamp of any country available on the said passport.

(n) Pakistani Passport No. AA-763653 in respect of Mrs Mehtab Aftab Ahmed shows that she left Karachi on 16-4-1993 and reached Bangkok on 16-4-1993. Again, she left Bangkok on 27-4-1993. There is no arrival stamp of any country on the said passport.

(o) Pakistani Passport No. AC-001087 in respect of Mrs Mehtab Aftab Ahmed shows that she left Karachi on 25-7-1994 and entered Dubai on the same day. She left Dubai on 10-8-1994 and entered Dubai on 11-8-1994. Again, she left Dubai on 25-8-1994 and entered India on 25-8-1994. The passport shows that Rubina Suleman Memon and Mehtab Aftab Ahmed are the same persons.

216. The above evidence along with the confessions of various co-accused amply prove that the weapons' training was organised with the aid of the Government of Pakistan and also clearly shows a very deep involvement of A-1 in the organisation and conduct of serial bomb blasts in question.

Retractions

217. It has been contended by the learned Senior Counsel that all the confessions relied upon have been retracted and therefore, they are not trustworthy and it would not be safe to place reliance on them. It is also contended that those statements had been obtained under threat and coercion and were not voluntary, as such, those confessional statements could not be taken to be worthy of reliance. It was submitted by the prosecution that a voluntary and free confession, even if later retracted, can be relied upon. It was pointed out that the retractions were not made at the first available opportunity by the accused persons. It was also highlighted that after their arrest, the accused were brought before the Magistrate's Court several times in 1993 and 1994, however, the retractions were made many months after recording of the confessions.

218. This Court in Mohd. Amin v. CBI, considered several TADA cases where confession was recorded under Section 15 TADA and later retracted. This Court was pleased to observe:

“32. If a person accused of committing an offence under the Act challenges his confession on the ground that it was not made voluntarily, then the initial burden is on the prosecution to prove that all requirements under Section 15 of the Act and Rule 15 of the Rules have been complied with. Once this is done, the burden shifts on the accused person and it is for him to prove that the confession was not made voluntarily and that the same is not truthful and if he adduces evidence during the trial to substantiate his allegation that the confession was not voluntary then the court has to carefully scrutinise the entire evidence and surrounding circumstances and determine whether or not the confession was voluntary. The confession made under Section 15 of the Act cannot be discarded only on the ground of violation of the guidelines laid down in Kartar Singh case because the same have not been incorporated in the Act and/or the Rules.”

219. The Court, rejecting the contention that confession should not be relied upon further held in para 69 that: (Mohd. Amin case)

“69. If the confessions of the appellants are scrutinised in the light of the above enumerated factors, it becomes clear that the allegations made by them regarding coercion, threat, torture, etc. after more than one year of recording of confessions are an afterthought and products of ingenuity of their advocates. The statements made by them under Section 313 CrPC were also the result of an afterthought because no tangible reason has been put forward by the defence as to why Appellants A-4 to A-8 did not retract from their confessions when they were produced before the Magistrate at Ahmedabad and thereafter despite the fact that they had access to legal assistance in more than one way. Therefore, we hold that the trial court did not commit any error by relying upon the confessions of the Appellants A-4 to A-8 and A-10 and we do not find any valid ground to discard the confessions of Appellants A-4 to A-8 and A-10.”

220. This Court in Jameel Ahmed v. State of Rajasthan held that:

“48. … it happens very often and it is the common defence of a person making confessional statement to deny the same or retract from the same subsequently and to allege compulsion in making such statement.”

221. In State of Maharashtra v. Bharat Chaganlal Raghani 2001 9 SCC 1 this Court, while setting aside the judgment of acquittal recorded by the Designated TADA Court, observed as under:

“58. … There is no denial of the fact that the judicial confessions made are usually retracted. Retracted confessions are good confessions if held to have been made voluntarily and in accordance with the provisions of law…. Corroboration of the confessional statement is not a rule of law but a rule of prudence. Whether in a given case corroboration is sufficient would depend upon the facts and circumstances of that case.”

222. In Manjit Singh v. CBI 2011 11 SCC 578 this Court, while considering the question whether retracted confessions of co-accused could be relied upon to convict the accused, held that the retracted statements can be used against the accused as well as the co-accused provided such statements were truthful and voluntary when made. In the said case, the two accused who made confessional statements, subsequently retracted from their statements. This Court observed:

“87. A confessional statement given under Section 15 TADA shall not be discarded merely for the reason that the same has been retracted.”

Where the original confession was truthful and voluntary and has been recorded after strictly following the law and the prescribed procedure, the subsequent retraction and denial of such confessional statement in the statement of the accused under Section 313 CrPC was only as a result of an afterthought.

223. In Kalawati v. State of H.P it was said that “the amount of credibility to be attached to a retracted confession would depend upon the facts and circumstances of each case”.

224. In State of T.N v. Kutty AIR 2001 SC 2778 it was held:

“13. … The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it.”

Therefore, retracted confession may form legal basis for conviction if the court is satisfied the confession was true and was voluntarily made. (See also Navjot Sandhu.)

225. In Balbir Singh v. State of Punjab AIR 1957 SC 216, it was held that the rule of practice and prudence requires a retracted confession to be corroborated by independent evidence. [See also Parmananda Pegu v. State of Assam 2004 7 SCC 779, Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094, Kehar Singh v. State (Delhi Admn.) and Babubhai Udesinh Parmar v. State of Gujarat 2006 12 SCC 268.]

226. It is therefore clear that where the original confession was truthful and voluntary, the court can rely upon such confession to convict the accused in spite of a subsequent retraction and its denial in statement under Section 313.

227. Since we have elaborately discussed the contention with regard to retraction of statements, there is no need to refer to the same in respect of other appeals before us.

Corroboration of confession

228. Further, a contention was raised by the learned Senior Counsel for the appellant that there was no sufficient corroboration of the confessional statements made by the accused.

229. In reply to the above, the prosecution relied upon the following decisions.

230. In Wariyam Singh v. State of U.P 1995 6 SCC 458 this Court relied upon the confession made by the accused for convicting him. The confession was alleged to have been fabricated. In para 16 of the judgment, it was held that a part of the confession stood corroborated by the testimony of a witness and, hence, there was no reason to believe that the confession was fabricated. This Court held that the allegation of the confession being fabricated was without any basis and the confession could be taken into account while recording conviction.

231. In S.N Dube v. N.B Bhoir, this Court in para 34 observed that the confessions of the two accused being substantive evidence are sufficient for considering them and it also received corroboration from the confessions of others accused and also general corroboration as regards the other illegal activities committed by them from the evidence of other witnesses. On the basis of those confessional statements, this Court reversed the orders of acquittal passed by the High Court.

232. In Lal Singh v. State of Gujarat this Court upheld the conviction of the accused on the basis of the confessions. It was held that the nation has been “facing great stress and strain because of misguided militants and cooperation of the militancy” which was affecting the social security, peace and stability. Since the knowledge of the details of such conspiracies remains with the people directly involved in it and it is not easy to prove the involvement of all the conspirators, hence the confessional statements are reliable pieces of evidence. The Court in para 84 observed:

“84. … Hence, in case of conspiracy and particularly such activities, better evidence than acts and statements including that of co-conspirators in pursuance of the conspiracy is hardly available. In such cases, when there is confessional statement it is not necessary for the prosecution to establish each and every link as confessional statement gets corroboration from the link which is proved by the prosecution. In any case, the law requires establishment of such a degree of probability that a prudent man may on its basis, believe in the existence of the facts in issue. For assessing evidence in such cases, this Court in Collector of Customs v. D. Bhoormall 1974 2 SCC 544 dealing with smuggling activities and the penalty proceedings under Section 167 of the Sea Customs Act, 1878 observed that many facts relating to illicit business remain in the special or peculiar knowledge of the person concerned in it and held thus:

‘30. … that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and—as Prof. Brett felicitously puts it—‘all exactness is a fake’. El Dorado of absolute proof being unattainable, the law accepts for it probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case.

31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered—to use the words of Lord Mansfield in Blatch v. Archar 1774 1 Cowp 63 (Cowp at p. 65)—“according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted”.’”

233. In State of Maharashtra v. Bharat Chaganlal Raghani this Court relied mainly on the confessional statements of the accused which were also retracted. It was held that there was sufficient general corroboration of the confessional statements made by the accused. This Court found sufficient corroboration in the testimony of the witnesses and the recoveries made pursuant to the statements given by the accused. It was also held that once the confessional statements were found to have been made voluntarily, the test identification parade was not significant. It was further held that corroboration is not a rule of law but a rule of prudence.

234. In Devender Pal Singh v. State (NCT of Delhi) this Court was considering, among other things, whether the accused making the confessional statement can be convicted on the basis of the confession alone without any corroboration. It was held that once it is found that the confessional statement is voluntary, it is not proper to hold that the police had incorporated certain aspects in the confessional statement which were gathered during the investigation conducted earlier. It was held that the so-called retraction by the appellant was made long after he was taken into judicial custody. It was also observed that:(-55)

“51. Where trustworthy evidence establishing all links of circumstantial evidence is available, the confession of a co-accused as to conspiracy even without corroborative evidence can be taken into consideration. (See Baburao Bajirao Patil v. State of Maharashtra 1971 3 SCC 432.) It can in some cases be inferred from the acts and conduct of the parties. (See Shivnarayan Laxminarayan Joshi v. State of Maharashtra.)

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54. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh v. State (Delhi Admn.) 1978 4 SCC 161] Vague hunches cannot take the place of judicial evaluation.

‘[A] Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. … Both are public duties….’

(Per Viscount Simon in Stirland v. Director of Public Prosecution 1944 AC 315 quoted in State of U.P v. Anil Singh 1988 Supp SCC 686)

55. When considered in the aforesaid background, the plea that acquittal of the co-accused has rendered the prosecution version brittle, has no substance. Acquittal of the co-accused was on the ground of non-corroboration. That principle as indicated above has no application to the accused himself.”

235. In Ravinder Singh v. State of Maharashtra, this Court held that a confession does not require any corroboration if it relates to the accused himself. It was further held that there was enough evidence to provide general corroboration to the confessional statement. It was further held that minor contradictions in the statements of the accused were of no consequence once the confessions were held to be reliable.

236. In Jameel Ahmed v. State of Rajasthan the position of law was summed up by this Court as follows:

“35. To sum up our findings in regard to the legal arguments addressed in these appeals, we find:

(i) If the confessional statement is properly recorded, satisfying the mandatory provision of Section 15 of the TADA Act and the Rules made thereunder, and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient to base a conviction on the maker of the confession.

(ii) Whether such confession requires corroboration or not, is a matter for the court considering such confession on facts of each case.

(iii) In regard to the use of such confession as against a co-accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base a conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

(iv) The nature of corroboration required both in regard to the use of confession against the maker as also in regard to the use of the same against a co-accused is of a general nature, unless the court comes to the conclusion that such corroboration should be on material facts also because of the facts of a particular case. The degree of corroboration so required is that which is necessary for a prudent man to believe in the existence of facts mentioned in the confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the TADA Rules which contemplates a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. However, the court considering the case of direct transmission of the confessional statement to the Designated Court should satisfy itself on facts of each case whether such direct transmission of the confessional statement in the facts of the case creates any doubt as to the genuineness of the said confessional statement.”

237. In Nazir Khan v. State of Delhi 2003 8 SCC 461, this Court held that the confessional statements made by co-accused can be used to convict a person, and that it is only as a rule of prudence that the Court should look for corroboration elsewhere. It was held that:

“27. Applying the principles which can be culled out from the principles set out above to the factual scenario, the inevitable conclusion is that the trial court was justified in its conclusions by holding the accused-appellants guilty. When an accused is a participant in a big game planned, he cannot take the advantage of being ignorant about the finer details applied to give effect to the conspiracy hatched, for example, A-7 is stated to be ignorant of the conspiracy and the kidnapping. But the factual scenario described by the co-accused in the statements recorded under Section 15 of the TADA Act shows his deep involvement in the meticulous planning done by Umar Sheikh. He organised all the activities for making arrangements for the accused and other terrorists.”

238. In Sukhwant Singh v. State 2003 8 SCC 90, this Court upheld the conviction solely on the basis of the confession of the co-accused, without any corroboration, that too in a situation where the accused himself had not confessed. The judgment in Jameel Ahmed was relied upon. It was held: (Sukhwant Singh case)

“3. In the present case we are aware of the fact that the appellant has not made any confessional statement nor is there any corroboration of the confessional statement of the co-accused implicating this appellant from any other independent source but then we have held in the abovereported case that if the confessional statement of a co-accused is acceptable to the court even without corroboration then a confession of a co-accused can be the basis of conviction of another accused so implicated in that confession. Therefore the fact that the appellant herein has not confessed or the confessional statements made implicating him by A-1 and A-2 are not independently corroborated, will not be a ground to reject the evidence produced by the prosecution in the form of confessional statement of co-accused provided the confession relied against the appellant is acceptable to the court.”

239. In Mohd. Amin v. CBI, this Court convicted the accused on the basis of their confessions and confessional statements of co-accused. It was held that there is no requirement of corroboration if the confessions are proved to be made voluntarily, and the rules applicable have been complied with. The following observations are pertinent:

“31. The ratio of the abovenoted judgments is that if a person accused of an offence under the Act makes a confession before a police officer not below the rank of Superintendent of Police and the same is recorded by the officer concerned in writing or on any mechanical device like cassettes, tapes or soundtracks from out of which sounds or images can be reproduced, then such confession is admissible in the trial of the maker as also the co-accused, abettor or conspirator not only for an offence under the Act but also for offence(s) under other enactments, provided that the co-accused, abettor or conspirator is charged and tried in the same case along with the accused and the court is satisfied that requirements of the Act and the Rules have been complied with. Whether such confession requires corroboration depends on the facts of the given case. If the court is convinced that the probative value of the confession is such that it does not require corroboration then the same can be used for convicting the maker and/or the co-accused under the Act and/or the other enactments without independent corroboration.”

240. In Mohd. Ayub Dar v. State of J&K 2010 9 SCC 312, it was held that even though the guidelines in Kartar Singh have not been strictly followed, the confession of the accused recorded is admissible against him and can be relied upon solely to convict him. The following observations of this Court are pertinent: (Mohd. Ayub Dar case & 64)

“59. It would, therefore, be clear, as rightly contended by Shri Rawal that merely because the guidelines in Kartar Singh v. State of Punjab were not fully followed, that by itself does not wipe out the confession recorded. We have already given our reasons for holding that the confession was recorded by A.K Suri (PW 2) taking full care and cautions which were required to be observed while recording the confession.

60. In Ravinder Singh v. State of Maharashtra it has been observed in para 19 that if the confession made by the accused is voluntary and truthful and relates to the accused himself, then no further corroboration is necessary and a conviction of the accused can be solely based on it. It has also been observed that such confessional statement is admissible as a substantive piece of evidence. It was further observed that the said confession need not be tested for the contradictions to be found in the confession of the co-accused. It is for that reason that even if the other oral evidence goes counter to the statements made in the confession, one's confession can be found to be voluntary and reliable and it can become the basis of the conviction.

61. In this case, there is ample corroboration to the confession in the oral evidence as well as the documentary evidence in shape of a chit, which is referred to in the said confession. There is a clear reference that the Personal Assistant, who was a non-Kashmiri and kept a beard, had sent a slip inside. Ultimately, that slip was found by the police, which corroborates the contents in the confession. In our opinion, that is a sufficient corroboration to the confession.

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64. All these cases suggest that the only test which the court has to apply is whether the confession was voluntary and free of coercion, threat or inducement and whether sufficient caution is taken by the police officer who recorded the confession. Once the confession passes that test, it can become the basis of the conviction. We are completely convinced that the confession in this case was free from all the aforementioned defects and was voluntary.”

241. In view of the above, it can easily be inferred that with regard to the use of such confession as against a co-accused, as a matter of caution, a general corroboration should be sought for, but in cases where the court is satisfied that the probative value of such confession is such that it does not require corroboration then it may base conviction on the basis of such confession of the co-accused without corroboration. But this is an exception to the general rule of requiring corroboration when such confession is to be used against a co-accused.

Deposition of Mohd. Usman Jan Khan (PW 2) (approver)

242. In the light of the above principles, it is useful to analyse the entire evidence of PW 2 not only implicating A-1 but also other accused in respect of the incident that took place on 12-3-1993. PW 2, who turned approver, is a native of District Rampur, Uttar Pradesh. However, according to him, he is residing at Bombay for the last 28 years. He was working as an estate agent and property dealer. He was arrested on 10-5-1993 by Bombay Police in connection with the Bomb Blasts Case. He was arrested on the allegations that he was involved in the conspiracy, landing, planning, training and planting of bombs.

243. In his evidence, PW 2 admitted that he took training in handling of weapons in Pakistan for a period of ten days along with others. During the training, according to him, they were also imparted training for handling RDX. For the present, since we are concerned about the role of A-1 relating to conspiracy, we are constrained to refer his evidence relating to the said aspect. He admitted that he knew Javed Dawood Tailor (AA) known as Javed Chikna, Mushtaq alias Ibrahim Abdul Razak Memon known as Tiger Memon and Yakub Adbul Razak Memon as Yakub (A-1). While identifying the accused concerned in the court, PW 2 identified him in the fourth batch consisting of eight persons. He further stated that all the accused persons whom he identified before the court have worked with him and admitted that they were together in the bomb blasts. It was further stated that all the persons including A-1 were involved in planning, the conspiracy, training, landing and planting of bombs.

244. According to PW 2, when he met Tiger Memon and others at Hotel Big Splash on 2-2-1993, he (Tiger Memon) told them that in communal riots in Bombay and Surat, Muslims have suffered a lot and Babri Masjid has been demolished and that restrictions have been put even on “Azaan” and “Namaz”. He informed all of them that during the riots their mothers and sisters have been dishonoured and the Government is not extending any help to them. So, he wanted to take revenge and he requested all of them to help him in this regard. When this meeting was going on, two persons, namely, Yeda Yakub and Shahid also joined them in the meeting. Tiger Memon also told them that he had arranged for arms and explosives from Pakistan which were coming on that day and he also warned them that if any person betrayed him, he would finish him and his family.

245. PW 2 further deposed that on the same day, at about 4 p.m, all of them left for Shekhadi Coast in two Commander jeeps. In one jeep he was travelling along with Tiger Memon, Javed, Munna, Anwar, Akbar and Karimullah and others were in the second jeep driven by Shafi. According to him, at Shekhadi Coast, three agents of Tiger Memon, namely, Dadabhai, Dawood Taklya and Rahim Laundrywala along with 30/40 persons from the neighbouring village were present. At about 11 p.m, one speed boat came near the coast and passed over seven military-coloured bags containing guns, pistols and grenades of green colour having oval shape. The guns were AK-56 rifles. Tiger Memon distributed AK-56 rifles to Javed and Anwar and others including PW 2 were given hand grenades and pistols. PW 2 was also given a pistol. All the goods were loaded in a truck which was parked there. Tiger asked them to proceed towards Waghani Tower. When they reached Waghani Tower, PW 2 noticed that 2/3 jeeps and a Maruti car were parked there. He along with others unloaded the goods from the truck and brought them to the central room of Waghani Tower. On Tiger's instructions, he and others unpacked the bags. The bags were containing AK-56 rifles, hand grenades, pistols, round (cartridges), wires (detonators), magazines and RDX, etc. All these items were then kept in the cavities of the motor jeeps. One box of detonators was kept in a blue-coloured Commander jeep by Shafi to take to Hotel Persian Darbar on the instructions of Tiger Memon. He also explained about booking of a room in Hotel Persian Darbar at Panvel on 10-2-1993 in the name of Mohd. Usman Khan.

246. On 11-2-1993, Javed Chikna came to PW 2's residence and asked for his passport telling him that “Tigerbhai” has called for it. PW 2 handed over his passport to Javed Chikna. PW 2 informed the court that he had obtained the passport in January 1987 and his passport No. is B-751254. At about 1 p.m, he received a call from Javed Chikna informing him to come prepared for going to Dubai and to meet him at Hindustan Soda Factory, Mahim. At about 4 p.m, he met Javed Chikna at the said place and from there Javed took him to Al-Hussaini Building. In categorical terms, he asserted that Tiger Memon resides in Al-Hussaini Building at Mahim. On 11-2-1993, when PW 2 went there, Tiger Memon and Yakub Memon (A-1) were sitting together in the flat. Tiger Memon told Yakub Memon to give six air tickets to Javed Chikna (AA). Thereafter, Yakub Memon (A-1) gave six air tickets to Javed Chikna. PW 2 and Javed Chikna wished “Khuda Hafiz” to Tiger Memon and left the place. Thereafter, he along with others went to the airport to go to Dubai. He reached Dubai at 10.30 p.m At Dubai Airport, Ayub Memon (AA) had come to receive them. Ayub Memon is the brother of Tiger Memon. This was on 11-2-1993.

247. PW 2 also informed the court that on 13-2-1993, Tiger Memon and Ayub Memon met them at Dubai Airport. Tiger Memon gave seven air tickets of Pakistan International Airlines and their passports to Javed Chikna. Tiger Memon informed all of them that they need not worry about their journey to Pakistan. He also informed that one Jafar Saheb will receive them at Islamabad Airport and will take care of them. On reaching Islamabad Airport, Jafar Saheb escorted them and they were not required to pass through the immigration counter and various checks and they came out of the airport with their luggage without any problem. The airport officials saluted Jafar Saheb when he was escorting them out of the airport. He further explained that two jeeps were parked outside the airport and from there they were taken to a bungalow. On reaching the bungalow, Jafar Saheb collected their passports and air tickets and each one of them was given a fake name. He was named “Nasir”. Likewise, names of others were also changed. Jafar Saheb instructed them that during their stay in Pakistan they should call each other by these new names. They stayed in the bungalow for two days i.e 14th and 15th. Then on 16th, Jafar Saheb took all of them to a different place and introduced them to two persons and informed them that these persons would impart training in arms and ammunition and left the place.

248. On the next day, three more persons joined the training camp and all of them were given training in operating firearms like AK-56 rifles, pistols and they were also shown how to dismantle and reassemble the firearms. Training in firearms was given from 19-2-1993 to 21-2-1993. During this time, in the night, nine more persons came to the training camp viz. Yeda Yakub (AA-11), Nasir Dakhla (A-64), Anwar Theba (AA-8), Irfan Chougule (AA-12), Shahnawaz (A-29), Abdul Akhtar (A-36), Mohd. Rafiq (A-94), Gullu (A-77) and Bashir Khan (AA-15). These persons also joined them for training. According to PW 2, in all, there were 19 persons taking training at the relevant time. On the next day, Tiger Memon along with one Ahmed Sahab arrived at the training camp and stayed there. In the training, they were taught how to operate AK-56 rifles, pistols, hand grenades and the use of RDX for preparing bombs. They were given a practical demonstration of an RDX bomb which was fitted with a half-an-hour timer pencil detonator. The bomb explosion resulted in a deafening sound followed by huge black smoke and it blew up stones and earth. The next day, Tiger left the camp.

249. On 27-2-1993, they all returned from the training camp to the bungalow where they were kept on their arrival at Islamabad. All of them were escorted by Ahmed Sahab and Jafarbhai and without any checking they were given boarding cards and they left Islamabad by a PIA flight and reached Dubai at about 1.30 p.m to 2 p.m On reaching Dubai, Tiger took all of them to a bungalow situated at Al-Rashidia. After finishing their meals, they discussed the communal riots in Bombay and Surat where Muslims had suffered. Thereafter, Tiger directed Irfan Chougule (AA-12) to bring the holy Quran from the other room. Tiger administered oath to all of them by placing their hands on the holy Quran that they would not disclose anything about the training in Dubai and Pakistan to any person including their family members and about their proposed future plans and in the event that they were arrested by the police they would not disclose their plans and names of their associates. Thereafter, Tiger Memon distributed 200 Dirhams to each one of them for shopping, etc. Thereafter, they left Dubai in batches as and when they received their passports and tickets.

250. On 4-3-1993, they reached Sahar Airport, Bombay. The disembarkation card was filled by PW 2 in his own handwriting and he himself signed it. At the airport, he noted that one Ambassador car and one Maruti car had come to receive them. He further stated that Tiger Memon and Javed Chikna sat in the Maruti car which was driven away by Tiger Memon. He along with Bashir Khan sat in the Ambassador car in which Yakub Memon (A-1) and one more person was sitting. After reaching Mahim from there, he went to his house at 5 p.m

251. The critical analysis of the evidence of PW 2 makes it clear that though he did not mention about the participation of A-1 in all the meetings, however, he identified A-1 in court and asserted that he is the brother of Tiger Memon and it was he who assisted his brother at Al-Hussaini Building for all preparations viz. purchasing tickets, getting visas, making arrangements for the persons who were sent to Pakistan via Dubai for training in handling and throwing bombs, filling RDX in vehicles, etc., their stay at Dubai and comfortable return of such persons from Pakistan to Bombay, payments to various persons who underwent training which clearly prove the involvement of A-1 in the conspiracy as well as in subsequent events and actions along with his brother and other accused.

252. On the very same day i.e on 4-3-1993, all of them met at Taj Mahal Hotel. In the hotel, they went to the coffee shop, Shamiana. This was around 10.30 p.m to 10.45 p.m Tiger Memon, after discussion with one Farooqbhai took them towards Share Market Building in his car near Fountain and showed them the new and the old building of the Share Market. On the way, Tiger Memon told them to survey Bombay Municipal Corporation Building and to check its two entrances. After noticing the same from there, they returned to Taj Mahal Hotel. After dropping Tiger Memon at his residence i.e at Al-Hussaini Building, Mahim, they took his Maruti car and went to the residence of Sardar Shawali Khan (A-54) at Kurla. Bashir Khan then administered oath to A-54 stating that whatever they will do, they will do for Islam and would take revenge for the demolition of Babri Masjid and communal riots.

253. In respect of a question relating to the purpose of the survey, he answered that the purpose was to shoot down the Municipal Councillors of BJP and Shiv Sena Parties with AK-56 rifles by indiscriminately firing upon them. After conducting the survey, they went to meet Tiger Memon and briefed him and after that left for their houses. He explained that the third meeting was held on 7-3-1993 and in that meeting Javed Chikna (AA-7), Tiger Memon (AA-2), Nasim alias Yusuf (A-49), Kalu, Bashir Electrician (A-13), Moin (A-43), Parvez Kelewala (A-100), Nasir Dakhla (A-64) and he along with Bashir Khan, Salim Rahim Shaikh, Akram alias Firoz and some persons who were with them in the training and Sardar Shahwali Khan (A-54) and Lalli were also present. In the said meeting, Tiger organised separate groups for surveying targets. The task assigned to his group was to survey the Sena Bhavan and Sahar Airport. According to him, as directed by Tiger, after completion of the work, he and others briefed Tiger.

254. On 8-3-1993, a fourth meeting was held at Babloo's (AA-18) place between 10 and 10.30 p.m This meeting was held at a flat on the terrace portion. After calling them, including PW 2 inside the flat, Tiger Memon selected the targets. These targets included Air India Building, Nariman Point, Bharat Petroleum Refinery, Chembur, Share Market near Fountain, Zaveri Bazaar near Mohd. Ali Road and Pydhoni, five star hotels, cinema theatres, Shiv Sena Bhavan, Shivaji Park, Dadar, Bombay Municipal Corporation building, V.T, Sahar Airport, Passport Office, Worli, Mantralaya, etc. These were the places which were to be attacked by planting bombs, by using AK-56 rifles and by throwing hand grenades. Tiger Memon formed separate groups and gave instructions separately. About Bombay Municipal Corporation building, Tiger Memon also explained to them the entry and exit points of the said building for the purpose of attacking BJP and Shiv Sena Councillors with AK-56 rifles. After this, they came back to Mahim and left for their residence.

255. According to PW 2, another meeting was held on 10-3-1993 at Hindustan Soda Factory, Mahim in the evening. There he met Javed Chikna. At that time, Javed Chikna informed him that in the evening around 8 p.m there is a meeting at Shakil's place at Bandra and directed him to attend the said meeting. Pursuant to the same, PW 2 reached Shakil's residence at 8.30 p.m There he met Tiger Memon, Javed Chikna, Salim Bazarwala, Bashir Khan, Zakir, Nasir Dakhla, Parvez Kelewala, Moin, Iqbal, Sardar Shawali Khan, Bashir Electrician, Mehmood alias Kaloo and Nasim alias Yusuf. Tiger Memon also distributed Rs 5000 to each one of them in the said meeting. He explained to Tiger about the survey of Chembur Refinery.

256. On the next day i.e on 11-3-1993, they all gathered at Hindustan Soda Factory, Mahim at 8 p.m At 9.30 p.m, they received a phone call from Tiger Memon who directed all of them to reach Al-Hussaini Building immediately. Pursuant to the said direction, all of them including PW 2 went to the fifth floor of the said building i.e to Tiger's flat and he noticed several persons interacting with Tiger. Tiger called him to his bedroom. There, once again, he explained the survey of Chembur Refinery and informed him that there is very tight security, hence, it will be impossible to carry out the work there. On this, Tiger Memon cancelled the plan of Chembur Refinery. Tiger Memon instructed them that as they had learnt the work relating to detonators and timer pencils, they should fill RDX in the vehicles and place detonators and timer pencils in a proper way. They all agreed to do the same. Tiger Memon handed over some detonators and timer pencils to them. Tiger instructed them to go to Share Bazaar i.e Stock Exchange and Air India Building. Tiger also gave pencils to various persons and instructed Javed Chikna and Anwar Theba to pay Rs 5000 to each one of them and also directed that they had to act and work according to the directions of Javed Chikna and Anwar Theba.

257. PW 2 further informed the court that Tiger Memon conveyed to them that after the blasts in Bombay, there would be communal riots, so all of them should leave Bombay and they could contact him over the telephone. He gave his telephone number of Dubai as 27 27 28. Thereafter, Tiger Memon met all of them and left in a Maruti car with Anwar (AA-8), Asgar (A-10) and Shafi (AA-9). He also stated that in the garage Abdul Akhtar (A-36), Iqbal (A-23), Moin (A-43), Kalu alias Mehmood, Nasim alias Yusuf (A-49) were filling RDX in the dickey of the motor vehicles. PWs 2 and 6 met Farooq Pawale (A-16) and Javed Chikna instructed Farooq Pawale to take one Maruti car to Shiv Sena Bhavan, Dadar and park it near there. As directed, PW 2 accompanied A-16 in a white Maruti car and it was he who drove the Maruti car to Shiv Sena Bhavan. He further informed that one Hawaldar (constable) was sitting there who was not allowing them to park the car but with great difficulty he parked the Maruti car near the wall by the side of the service station within the campus of petrol pump. The said petrol pump was Lucky Petrol Pump and it had a common boundary wall with Shiv Sena Bhavan.

258. PW 2 also explained that after reaching Al-Hussaini Building, he went to the fifth floor to Tiger's flat. There he saw Javed Chikna was distributing hand grenades to some persons, namely, Salim Bazarwala (A-52), Abdul Akhtar (A-36), Kalu alias Mehmood, Moin (A-43) and Bashir Electrician (A-13). They all were given four hand grenades each by Javed Chikna. He instructed them that they would have to throw these hand grenades in Fisherman Colony, Mahim. He also gave four hand grenades each to Iqbal (A-23) and Nasim alias Yusuf (A-49) and directed them to throw the same at Sahar Airport.

259. As planned, several blasts took place at various places in Bombay. PW 2 contacted Tiger Memon and apprised him of the same and as directed left Bombay immediately and reached Calcutta. From there also, he contacted Tiger but he could not speak to him. He reached Delhi by train and went back to his village at Rampur, U.P PW 2 was arrested on 10-5-1993 and on the same day, he was brought to Bombay. About his statement to DCP Bishnoi, he deposed before the court on 25-6-1993 that the DCP had correctly recorded his statement. It bears his signature and is also countersigned by DCP Bishnoi.

260. On 20-9-1993, PW 2 wrote a letter to the Joint Commissioner of Police, Mr M.N Singh through the jail authorities. In this letter, he expressed that he was repenting the crime committed by him against his country and humanity and so he wanted to confess his crime before the court. At Killa Court, ACP Babar told him that if he was really repenting what he had done then he could be made a witness and could be given pardon if he would tell the truth before the court. On his statement, he was produced before the Chief Metropolitan Magistrate. The CMM asked him about his involvement in the Bombay Blasts which took place on 12-3-1993. He stated before the CMM about his involvement in the conspiracy and planting of bombs and expressed that he was repenting for what he had done. When the CMM asked him whether he would state the same in the court, PW 2 answered in the affirmative i.e Yes. At this, the CMM offered him pardon and he accepted it. The entire conversation between the CMM and PW 2 was recorded by the typist and read over to him. He also expressed that tender and acceptance of pardon was correctly recorded and it bears his signature. On 28-9-1993, when he was granted pardon in the Killa Court, he was brought back to the prison and kept in Ward No. 10.

261. In the cross-examination, PW 2 admitted that he had been a resident of Mahim since 1985. With regard to several questions put by various counsel, in his cross-examination, he admitted that he was involved in the case from the stage of conspiracy till planting of bombs and is responsible for the explosions. He also admitted that he participated in all the stages of conspiracy till the achievement of the object. He admitted that the blasts that took place on 12-3-1993 were very heinous and a serious crime.

262. When PW 2 was produced before the DCP, namely, Shri K.L Bishnoi (PW 193) on 25-6-1993, in categorical terms, he explained that the DCP had cautioned him that he was going to record his confession under Section 15 TADA and also warned him that he was not bound to make a statement before him and that the said statement would be used against him in the court during the trial.

263. In respect of a question relating to certain variations in his earlier statement (Ext. 25-A), PW 2 informed the court that “I cannot say why it is not recorded in my statement, Ext. 25-A”. Though the counsel appearing for the accused pointed out certain variations/omissions, if we consider the entire statement both in the examination-in-chief and his explanation in the cross-examination, we are of the view that those omissions do not materially affect his statement. In fact, he had admitted that he narrated the whole story to Mr Bishnoi and he recorded whatever was told to him. However, he admitted that certain statements had been incorrectly recorded in Ext. 25-A.

264. In cross-examination, PW 2 reiterated what he had stated in the examination-in-chief that he came into contact with Tiger in connection with property dealing through Javed Chikna. Thereafter, he admitted that he used to meet Tiger at Hindustan Soda Factory where Javed Chikna also used to visit. He informed the court that Javed Chikna was a “dada” and hatchman of Tiger. He was assured that there was no risk in participating in the landing of goods which were being smuggled by Tiger as Tiger was known for managing everyone. According to PW 2, Hindustan Soda Factory at Mahim was a den for all sorts of anti-social activities which was owned by the brother-in-law of accused Hanif Kandawala. In the meeting, he agreed to participate in the conspiracy because Tiger aroused his religious feelings mentioning about communal riots and demolition of the Babri Masjid. He admitted that on 12-3-1993, he left Al-Hussaini Building in a Maruti van bearing No. MFC 1972 in order to attack Bombay Municipal Corporation building which was the target entrusted to him and to his team.

265. When PW 2 was in custody, he came to know that most of the other accused had also made confessions like him. He also admitted that he was aware that they would be caught for the destruction caused by the bomb explosions and the maximum penalty would be death. Assistant Commissioner of Police, Mr Babar had told him in Killa Court that if he agreed to become a prosecution witness and make a true and full disclosure of events, he would be granted pardon to which he agreed. According to PW 2, he read the order, Ext. 27. The order was directed to be produced before the Metropolitan Magistrate, 13th Court, Dadar for recording a statement under Section 164. In para 215 of the cross-examination, in categorical terms, he admitted “my statement, Ext. 25-A is correctly recorded except small mistakes and so what I deposed before the court in my examination-in-chief and recorded on page 138 in para 88 to the effect that my statement recorded on 28-6-1993 and 29-6-1993 is correctly recorded, is correct.”

266. In para 233 of his cross-examination, PW 2 has admitted that “the contents of the retraction (Ext. D-2) are not his statements as it contains language and words of a qualified person conversant with legal terminology”. For another question, he specifically denied that prior to becoming an approver, he was trying to extract money from the other accused persons. He also denied the allegation as incorrect that on 5-10-1993 he expressed his unwillingness to become an approver and showed his anxiety to join the company of the other accused. He also denied the allegation that while he was in police custody, the police obtained his signature on blank sheets.

267. With regard to Al-Hussaini Building, PW 2 stated that there were certain open and closed garages. He described that Al-Hussaini Building is a multi-storeyed building and Mahim Police Station is situated at a walking distance of one minute from the said building. In para 243 of his statement, in categorical terms, he admitted that “I have participated in all the stages of conspiracy till Bombay Blasts on 12-3-1993 i.e in landing of arms and ammunition and explosives, weapons' training at Islamabad, survey of targets chosen for causing bomb explosions in various meetings held to plan things and also in planting of motor vehicle bombs near Shiv Sena Bhavan and in the unsuccessful attempt to attack i.e preparation by proceeding towards the goal in a Maruti van MFC 1972 to attack Councillors of BJP and Shiv Sena in BMC Building at V.T”

268. Regarding weapons' training, PW 2 mentioned in para 244 that “It is correct to say that for the first time in my life, I was given weapons' training in handling and operation of AK-56 rifles, 9 mm pistols, hand grenades and RDX explosives during the period 17-2-1993 to 27-2-1993. Before this, I have never operated any firearm. It is true that I was given a loaded pistol at Shekhadi Coast on the night of 2-2-1993 with clear instructions to attack any outsider who comes to the landing site, I did not tell Tiger Memon that I do not know how to operate pistol.” Regarding training and execution of work, he stated that “my object was to take training and participate in the acts in accordance with the instructions of Tiger Memon”.

269. About his reaction after Bombay Blasts, he stated in his deposition that “On 12-3-1993, after the successful explosion of bombs, my only desire was to run away and escape as otherwise if I was arrested by the police, my position would have been precarious.” Regarding landing of ammunition and explosives, he admitted that arms and ammunition and explosives were landed at Shekhadi in the intervening night between 2-2-1993 and 3-2-1993 and this consignment was carried out as per the instructions of Tiger Memon.

270. Regarding filling of RDX and other ammunition, PW 2 stated that the work of filling RDX in the motor vehicles started after half-an-hour of Tiger Memon's departure. According to him, there were about 10-12 motor vehicles like Ambassador cars, Maruti cars, Commander jeeps and scooters. He explained that a motor vehicle bomb can be prepared by loading RDX explosive in its dickey or at any place in the vehicle and by fixing it with a timer pencil and that it will explode at the time set in the timer pencil. The time of explosion will deviate and depend on the temperature. The timer pencil which he was shown in the training had a duration ranging from half-an-hour to five hours. He and others were trained in Pakistan to prepare motor vehicle bombs.

271. In para 322, PW 2 asserted that in his statement before PI Pharande, DCP Bishnoi and PI Chavan, he had stated the truth and made full and true disclosure of all the facts within his knowledge. In his statement before these officers, he reiterated that he had stated all the relevant and important events within his knowledge. He also admitted that “he was motivated to participate in this heinous crime by Tiger Memon by arousing his sentiments by administering oath on holy Quran for taking revenge of the demolition of Babri Masjid, riots in Bombay and Surat in which Muslim people had suffered a lot, destruction caused in communal riots in Bombay and Surat, restrictions imposed on “Azaan” and “Namaz” and dishonouring of their family members in riots and Government remaining silent and hence, he got prepared to participate in the crime to take revenge”.

272. With regard to the relationship of A-1 with his brother and others, it was stated by PW 2 that “In my statement before PI Chavan I have stated that Yakub Memon, with one more person had come to receive us at Sahar Airport on our return from Dubai as stated by me before the court which is recorded on p. 108 para 60. Similarly, I also stated that I along with Bashir Khan sat in the Ambassador car in which Yakub Memon and one more person were there, as stated by me before the court, but it is not recorded in my statement before PI Chavan, I cannot assign any reason why it is not recorded by PI Chavan.” He also reiterated that his confessional statement was recorded as per his narration and DCP Bishnoi (PW 193) used to dictate it to the typist as per his say.

273. PW 2 is also very well aware of the fact that giving false evidence in court is an offence and asserted that he is a law-abiding citizen. In para 364, he fairly accepted that after recording his statement and after its completion, he signed it on all the pages at the bottom and at the end of the statement before he came out of the office of the DCP. After his signature, DCP Bishnoi checked up his signature on all the pages and, thereafter, he also signed the same.

274. About PW 2's willingness to confess his guilt before the court, let us consider whether all the required formalities and procedures have been complied with by the investigating officer concerned and the court concerned.

275. The Chief Investigating Officer, Bomb Blast Case (CIO, BBC), in his letter dated 28-9-1993, addressed to the Chief Metropolitan Magistrate stated that after the Bombay Blasts that took place on 12-3-1993, one of the accused, namely, Mohd. Usman Ahmed Jan Khan (PW 2) who also participated right from the conspiracy ending with blasts on 12-3-1993 and who had been arrested has submitted an application from jail on 20-9-1993 expressing voluntary readiness and willingness to confess his guilt before the court. In the said letter, it was further stated that during the investigation, it has transpired that a conspiracy was hatched between the accused persons in Dubai and in pursuance of the said conspiracy, some of the accused persons involved in the blasts were sent to Pakistan for training in handling RDX explosives, firearms, grenades, etc. It further transpired during investigation that the said conspiracy was hatched in order to strike terror in people as well as to affect adversely the harmony between Hindus and Muslims and also to wage war against the Central and the State Government. In the said letter, it was further stated that except the participants, nobody had any personal knowledge of how, when, where and why the criminal conspiracy was hatched and how all the details were chalked out to perfect the said conspiracy, how different acts were carried out with determined intention of achieving the object of the said conspiracy including training in Pakistan, how RDX explosives and other firearms were smuggled into India, how the RDX laden vehicles were planted at different places in Bombay and how the bomb blasts took place.

276. The Chief Investigating Officer has further stated that the said accused (PW 2) has voluntarily expressed his desire to confess before the court out of repentance. Accordingly, he suggested that instead of his mere confession, his evidence before the court as a prosecution witness would help the prosecution to a great extent in collecting evidence against such other offenders. He also noted that inasmuch as the accused is repenting very much and is prepared to run the risk of giving a judicial confession, the said accused would be a very good witness as an approver if pardon is granted to him by this Court. Hence, it was urged that it is necessary to tender pardon to the said accused on the condition of his true and full disclosure of all the facts and circumstances within his knowledge so far as the conspiracy hatched in Dubai, training in Pakistan, smuggling of RDX and landing of the same at Dighi and Shekhadi Coasts, transportation of RDX to Bombay, filling of the vehicles with RDX and planting of the same at important places in Bombay on 12-3-1993 and other acts incidental thereto are concerned. With these particulars and details, the Chief Investigating Officer prayed before the court or such other Metropolitan Magistrate that he may kindly be directed to record his statement under Section 164 of the Code.

277. The said application of the Chief Investigating Officer, Bombay Bomb Blast Case on 28-9-1993 was submitted to the court through Special Public Prosecutor Shri Nikam. Shri Nikam has also produced the warrant issued by the Designated Court in Miscellaneous Application No. 632 of 1993 in TADA Special R.A No. 34 of 1993. In the said warrant, the Designated Court directed that the accused Mohd. Usman Jan Khan be produced and forwarded to the Court of the Chief Metropolitan Magistrate on 28-9-1993 at 1200 hrs with a direction to the said court to tender pardon to him on the condition of his true and full disclosure of facts pertaining to the Bombay blasts offences within his personal knowledge.

278. Thereafter, after fulfilling all the formalities, the said accused was first questioned by the Chief Metropolitan Magistrate, Bombay at 4.15 p.m The accused stated that he is aware that he is before the Court of the Chief Metropolitan Magistrate of Bombay. Thereafter, the Chief Metropolitan Magistrate showed the accused his handwritten application dated 20-9-1993 addressed by him from Bombay Central Prison to Shri M.N Singh, Joint Commissioner of Police, Bombay. The accused identified his handwriting and his signature. On being confronted with this letter, the accused stated that the letter was written by him voluntarily. The Chief Metropolitan Magistrate, thereafter, asked the accused as to whether he was aware as to why he was being produced before him. By way of reply, the accused stated that he was involved in the Bombay Blasts which took place in Bombay on 12-3-1993 along with other persons in a conspiracy and as he desires to disclose all these things in full detail, he is being produced before him. The Chief Metropolitan Magistrate further noted that he was prepared to make all the disclosures in detail. The accused also replied that he is ready and willing to stand as a witness for prosecution and would make all these disclosures if pardon is granted to him. The Chief Metropolitan Magistrate has also recorded that on going through the replies given by the accused to several queries, he was satisfied that the accused is ready and willing to give a full and true disclosure of all the circumstances within his knowledge relating to Bombay Bomb Blasts Case.

279. The Chief Metropolitan Magistrate has also carefully perused the report of the Chief Investigating Officer and was fully satisfied that it is a case of conspiracy and in pursuance of the said conspiracy, the accused and other persons had planted and caused explosion of bombs at various places in Bombay on 12-3-1993. Therefore, he was satisfied that the grounds given by the Chief Investigating Officer in his application were true and correct. After recording the same, on 28-9-1993 itself, he passed an order in view of the powers conferred on him under Section 306 of the Code and tendered pardon to the accused, Mohd. Usman Jan Khan (PW 2) on the condition of his making full and true disclosure of all the circumstances within his knowledge relating to the blasts which occurred on 12-3-1993 and also in respect of the offence of conspiracy and such other offences connected therewith in the commission thereof. The said order has been read over and explained to the accused in Hindi and he accepted the tender of pardon on the aforesaid condition. Pursuant to the same, the Superintendent, Central Jail, Bombay was directed to keep the accused (PW 2) in a separate cell under proper surveillance and to make him available for the purpose of producing him before the Metropolitan Magistrate for recording his statement under Section 164 of the Code as requested by the Chief Investigating Officer. The abovementioned letter of the Chief Investigating Officer dated 28-9-1993 and the consequential order passed by the Chief Metropolitan Magistrate dated 28-9-1993 giving pardon and recording his statement satisfy the procedure prescribed and there is no flaw with regard to the grant of pardon and the recording of his statement thereafter.

280. A perusal of the entire evidence of PW 2 clearly shows that at no point of time he acted under pressure to become an approver. It is also clear that after serious thought and due to repentance, he realised that in such a serious matter it is better to reveal all the details to the court. He withstood the lengthy cross-examination. PW 2's testimony runs into hundreds of pages and he covered all the aspects starting from initial conspiracy and ending with execution of blasts at various places in Bombay on 12-3-1993. We are also satisfied that his confessional statement before the Deputy Commissioner of Police and his statement before the Designated Court are not borne out of fear but due to his conscience and repentance. We are also satisfied that his statement is believable and merely because at one or two places, he made certain comments on the omission/addition in the statement recorded by the Chief Investigating Officer, it does not materially affect the statement. On the whole, his testimony is reliable and acceptable and the Designated Court rightly relied on his entire statement in support of the prosecution case.

281. It was further contended by the learned Senior Counsel that the evidence of the approver does not incriminate the appellant (A-1).

282. The deposition of PW 2 reveals several incriminating circumstances against the appellant (A-1) which may be summarised as follows:

(i) PW 2 identifies the appellant in court.

(ii) PW 2 has deposed that on being told by Tiger Memon (AA), the appellant gave six air tickets to Javed Chikna (AA) at Al-Hussaini Building on 11-2-1993 for going to Dubai. PW 2 and Asgar Mukadam (A-10) were also present at the flat of Tiger Memon where the appellant handed over the air tickets to Dubai. Further, the fact that three air tickets were given by the appellant to Javed Chikna instead of six has been expressly denied by PW 2.

(iii) These six air tickets were actually used by the accused persons to undergo training in Pakistan where they went via Dubai. The appellant was thus instrumental in achieving the ultimate object of conspiracy by arranging for and handing over the air tickets to the accused persons in the presence of Tiger Memon.

(iv) On return from arms' training in Pakistan, PW 2 states that Tiger Memon (AA), Javed Chikna (AA), Bashir Khan (AA) and he returned together from Dubai to Bombay on 4-3-1993 by Emirates Flight. At the airport, two cars were waiting to receive them and PW 2 sat in an Ambassador car in which the appellant was also present.

PW 2 stated that the tickets were given by the appellant to a co-conspirator which fact has been corroborated by A-10 in his confessional statement. If this evidence is considered along with the fact that these tickets were arranged by the appellant (A-1) and he was present in the meeting of the co-conspirators i.e in the meeting of Tiger Memon, PW 2, Javed Chikna and A-10, it very clearly establishes his unity with the object of the conspiracy.

283. The prosecution has established by evidence that arranging the tickets to Dubai was one of the responsibilities of A-1. It is very clear that the deposition of PW 2 to the extent that when PW 2 and other conspirators were called by Tiger Memon, Yakub Memon was also present there, who on being asked by Tiger Memon, handed over the tickets to a co-conspirator which clearly establishes the active participation of A-1 in the conspiracy. If it was a conspiracy only known to Tiger Memon and Yakub Abdul Razak Memon did not share the object of the conspiracy with Tiger Memon and other co-conspirators then Tiger Memon would not have met with the co-conspirators in the presence of A-1. The fact that the co-conspirators were called for the meeting in the presence of A-1 and were being given instructions by Tiger Memon about the conspiracy in his presence clearly establishes the active participation of A-1 in the conspiracy.

284. It has further come in evidence that when PW 2 returned from Dubai along with Tiger Memon and other co-conspirators, A-1 was present with the car at the airport and returned to Mahim along with other co-conspirators. In fact, if A-1 had gone to the airport to receive his brother only, he would then have returned in the car with his brother alone. However, he came back in the car with other co-conspirators which also show his familiarity with other co-conspirators.

285. It has also been contended by the learned Senior Counsel for A-1 that the evidence of an approver is very weak and reliance has been placed on various decisions of this Court to that effect.

286. In the light of the provisions of Section 133 read with Section 114 Illustration (b) of the Evidence Act this Court has held that the evidence of an approver needs to be corroborated in material particulars. The evidence of the approver has been corroborated in material particulars by way of primary evidence by the prosecution. The following Table may summarise the corroboration provided by various materials and evidence on record:

Sl. No. Deposition of PW 2 Corroborating evidence 1. Stay of co-accused and meeting at Hotel Big Splash by Tiger Memon Entries in the Big Splash Hotel (Register) Confession of co-accused A-24, A-12, A-15, A-29 and A-64. Employees of Hotel Big Splash — PWs 141 and 304. 2. (a) Participation in first landing — unloading and loading at Waghani Tower (b) Participation in second landing — stay at Persian Darbar Hotel — during transportation — visit of 2 Customs Officer. Confession of co-accused A-14, A-17, A-64, A-16, A-12, A-29, A-15, PW 108 and PW 137 (watchman of Waghani Tower), PW 145 (panch), PW 588 (IO) Confession of co-accused A-64, A-16, A-100, A-24, A-58, A-14, A-17 and A-11. Article 1. — Entries in hotel register by name M.V Khan, Ext. 20. A-14, A-82 and A-113. 3. Handing over of tickets by A-1 PWs 311, 341, 420 Confession of A-46, A-67 and A-10. 4. Departure to Dubai and from Dubai to Pakistan for training Ext. 21-A — Embarkation Card (Emirates) Confession of A-100, A-52, A-16 and A-32. Immigration Officers-Bill-1244 5. Assumed names given to the trainees co-accused Exts. 1243, 1244, 1247, 1245 A-52, A-100, A-32, A-36, A-49, A-98, A-16, A-64, A-29. 6. No checking at the time of arrival in Pakistan Passport of A-77, Ext. 1730 A-29, Ext. 1731. A-98, Ext. 648 7. No checking at the time of departure from Pakistan Confession of co-accused A-39, A-49, A-98, A-64, A-52 and A-16. 8. Administration of oath at Dubai by Tiger Memon Ext. 2487 — Tiger's presence at Dubai. Ext. 2490 — Ayub's passport. Confession of co-accused A-64, A-32, A-36, A-39, A-49, A-98, A-52 and A-16. 9. Arrival in India Disembarkation Card, Ext. 22 — Emirates and other Disembarkation Card and Immigration Officer. 10. Meeting at Taj Hotel Confession of co-accused A-44 11. Meeting at the residence of accused Mobina on 7-3-1993 Confession of co-accused A-32, A-52, A-49, A-13, A-64 and A-100. 12. Survey of Shiv Sena Bhavan and Sahar Airport Confession of co-accused A-100 and A-64. 13. Meeting at the residence of Babloo Confession of co-accused A-64, A-39, A-16 and A-98. 14. Selection of targets Confession of co-accused A-64, A-39, A-16 and A-98. 15. Meeting at the residence of Mobina Confession of co-accused A-52, A-64, A-100 and A-13.

16. Survey of Chembur Refinery Confession of co-accused A-39. 17. Meeting at the residence of Tiger Memon - Distribution of money Confession of co-accused A-64, A-13, A-52, A-100, A-49 and A-29. 18. Departure of Tiger Memon Ext. 2487-Tiger's passport. Confession of co-accused A-10 and A-9. 19. Filling of RDX Confession of co-accused A-57, A-12, A-39, A-49, A-64, A-23 and A-43. 20. Planting at Shiv Sena Bhawan Confession of A-16, PWs 11 and 12 identified PW 2 and A-16. PW 469 - SEM, TI Parade. Letter to FSL 2447, 2469. FSL opinion 2447-A, 2448. 21. Distribution of hand grenades for throwing at Mahim Confession of co-accused A-32, A-36, A-39, A-52, PWs 5 and 6 and PW 13. 22. Member of Maruti van No. MFC 1972 with other co-accused Seizure of van — PW 46 and PW 371. 23. Presence at Tonk Confession of co-accused A-20 and A-130. 24. Stay at Hotel Harry Palace, New Delhi in the name of Nasir Khan. Natraj — Howrah Article 2 Ext. 3. Article 3, Ext. 24.

287. It is further contended by the appellant (A-1) that the statement of approver dated 25-6-1993 given to DCP Bishnoi (PW 193) was subsequently retracted in terms of a letter dated 10-12-1993 and, accordingly, should not be relied upon.

288. The said statement dated 25-6-1993 has not been pressed into service by the prosecution during the course of trial against any accused person including the appellant. PW 2 has himself explained the episode leading to the drafting of the said retraction and stated that the said statement was drafted at the instance of one Hanif Kandawala and Samir Hingora. The witness remained unshaken about the said aspect in the deposition. PW 2 was clear that he was told in jail by Hanif Kandawala and Samir Hingora that unless PW 2 retracts his statement they would finish him and his family. The following extracts from the deposition are pertinent in this regard:

288.1 Para 142 of the cross-examination of PW 2:

“… (The attention of the witness is drawn to one letter tendered by Majeed Memon.) ‘This letter has been written by me at the instance of Hanif and Samir at the time I was made to write my retraction by them. The letter is marked as Ext. D-1. This letter Ext. D-1 was got prepared as a rough note on the basis of which my retraction was finalised on 10-12-1993. The application dated 10-12-1993 retraction is marked as Ext. D-2. At the time in my examination-in-chief on 21-7-1995 wherein I stated before the court that Ext. D-2 was obtained from me by Hanif Kandawala and Samir Hingora I did not mention that there was another letter or letters obtained by them like the letter, Ext. D-1. Witness volunteers that there were two/three such letters prepared and on the basis of all such letters the retraction, Ext. D-2 was finalised and produced before the court. I did not read it but have written Ext. D-1 as dictated to me by Hanif Kandawala and Samir Hingora. All these letters which were prepared before the retraction, Ext. D-1 were in possession of accused Hanif Kandawala and Samir Hingora. I did not want to die. Today I do not fear death. At this stage witness complains to the court that his family members are receiving repeated threats and on Saturday i.e 29-7-1995 in his jail mulaquat he was informed that the family is receiving threats, he suspects the threats are coming from Samir Hingora and Hanif Kandawala. The witness wants the court to take necessary action.’”

288.2 Para 143:

“… It is not correct to say that no threats have been received by my family members and that I am mentioning this in the court falsely. In my statement, Ext. 25-A recorded by DCP Bishnoi there is no mention of the names Hanif Kandawala and Samir Hingora because at that time I was not concerned with them. Till Friday 28-7-1995 I did not tell about these letters like Ext. D-1 and others to any authority or to the court as it was not asked. I had made a complaint to the court. I have made an oral complaint after 15/20 days of filing the retraction, Ext. D-2. I did not make any complaint to the court as I was with the accused persons in jail and I was afraid of them.”

288.3 Para 91:

“… I sign in Hindi and English as per my choice. I can read, write and understand English. … It is true that this application was written by me and is signed by me and it was forwarded to the court. This application is written in my hand. This application was not presented by me but it was presented by Hanif Kandawala and Samir Hingora. This application was obtained from me against my wish. I did not complain of this to the court at any time till today. I did not complain to the Superintendent, Jail about this application that it has been obtained from me by the other two accused against my wish either orally or in writing.

288.4 Para 233:

“The contents of the retraction, Ext. D-2 are not mine as it contains language and words of a qualified person conversant with legal terminology. The retraction, Ext. D-2 was written by me during the day on 9-12-1993 and was submitted in the court on 10-12-1993 through the Jailor. This was written by me when I was with the other accused persons in the circle. In my retraction Ext. D-2 there is no reference of Samir Hingora and Hanif Kandawala….”

Ans: “I did not tell the court because I was kept with the accused persons and was under their influence and pressure.”

288.5 Para 234:

“… It will be correct to say that Hanif Kandawala, Samir Hingora and Abdul Hamid Birya these three accused persons had filed an application before this Court on affidavit that I am demanding monies from them. I do not know what were the contents of the affidavit filed by these three accused persons before this Court. I was informed by these accused persons that they are going to file such an affidavit in the court before it was filed in the court on 1-10-1993. The accused Abdul Hamid Birya was not in it and he did not tell me that he was going to file such an affidavit. It is not correct to say that I demanded a huge sum of money from Hanif Kandawala and Samir Hingora for not becoming an approver. It is not correct to say that I also told them if they do not give me money I will falsely implicate them. It is not true that for these reasons the accused Hanif Kandawala and Samir Hingora filed an application on oath before this Court on 1-10-1993. It is not correct to say that similarly I have been demanding monies from other accused persons otherwise I threatened them of falsely implicating them in the case. It is not correct to say that at the instance of police I was pressurising the accused persons to turn approver like me….”

288.6 Para 235:

“… It is not correct to say that prior to becoming an approver I was trying to extract money from the other accused persons. It is not correct to say that as I did not get satisfactory response from the accused persons I turned to the police expressing my willingness to become an approver and negotiated terms and conditions with them. It is not correct to state that I made deliberate mistakes in my letter addressed to Mr M.N Singh i.e Ext. 26 in order to keep my options open. It is not correct to state that after making an half-hearted attempt of becoming an approver I again started demanding money from the accused to decide on the names of involvement and non-involvement in my evidence. It is not correct to state that immediately prior to my evidence in the court and during my evidence being recorded I coerced or induced the accused persons at the instance of police to turn approver in the case like me and failed. It is not correct to state that my evidence before the court and attribution of roles of various accused persons is guided by this consideration.”

288.7 Para 236:

“… It is not correct to state that retraction D-2 was prepared by me with the assistance of co-accused persons on my request and willingness. It is not correct to state that I approached the accused S.M Thapa, R.K Singh and Mr Sayyed of the Customs Department by requesting them to prepare an effective retraction. It is not correct to state that retraction, Ext. D-2 was read over and understood by me and I willingness signed it in the presence of the jailor for dispatch to this Court.”

288.8 Para 237:

“… It is correct to state that the co-accused facing trial in this case were unhappy on my becoming an approver. It is not correct to say that in order to convince the accused persons that in reality I have not become an approver and I have mislead the police by writing Ext. 26 in which I have deliberately made three important mistakes and that the accused should be rest assured that I am not an approver, I wrote the letter D-1 to be retained as a documentary proof of the above fact with the accused.”

288.9 Para 238:

“… It is not correct to state that on 28-9-1993 before I signed Ext. 27 the order was not read over to me or I read it. It is not correct to state that Hanif Kandawala and Samir Hingora never threatened me at any time. It is not correct to state that I did not write anything like D-2 under the threat or influence of Hanif and Samir. It is not correct to state that letter Ext. D-1 is not a preparatory note.”

288.10 Para 243:

“… It is not true to say that my confession Ext. 25-A is involuntary and my retraction Ext. D-2 is voluntary. It is not true to say that my letter Ext. D-1 is true expression of events written by me in the said letter on my own accord and independent of any external influence. It is not true to say that it is not possible for any co-accused to repeatedly give threats to other accused and extract any writings spread over several days. It is not correct to say that accused Hanif Kandawala and Samir Hingora never gave me any threats and never asked me to write anything against my wish anytime. It is not true to say that I am making false statement against Hanif and Samir because they refused to pay monies demanded by me.”

289. It has been further contended by the appellant (A-1) that there are variations in the statement given by PW 2 in relation to the air tickets to Dubai. PW 2, in his examination-in-chief has clearly stated that the appellant (A-1) gave six air tickets for Dubai to Javed Chikna (AA) on 11-2-1993, on the instructions of Tiger Memon. This statement has been clarified by PW 2 in his cross-examination where he confirms that “It did not happen that Tiger Memon told Yakub Memon to give six air tickets to Asgar and Yakub Memon gave six air tickets to Asgar. The air tickets were given to Javed Chikna by Yakub Memon as told by Tiger Memon … It is wrongly recorded in my statement Ext. 25-A. I cannot assign any reason why it is so recorded.” Further, PW 2 has clarified his statement and asserted that it was the appellant (A-1) who gave the air tickets. It is further submitted that there is no contradiction about the fact that such a meeting amongst the co-conspirators took place where the appellant (A-1) was present and he was asked to provide the tickets. The contradiction pointed out by the defence does not go to the root of the matter and is not a material contradiction.

290. In the light of the above discussion, we hold that the evidence of PW 2 very clearly implicates the appellant (A-1) in respect of his involvement in the conspiracy.

Grant of pardon under Section 306 of the Code to Mohd. Usman Ahmed Zan Khan (PW 2) (approver)

291. It was submitted by the learned Senior Counsel for A-1 that TADA is a complete Code containing provisions for setting up of Designated Courts, conduct of trials, awarding of punishment, etc. The said Act does not contain any provision for the grant of pardon as contained in the Code, namely, Sections 306, 307 and 308. It was submitted by the learned Senior Counsel that the power to grant pardon is a substantive power and not a procedural power, and as such, the same has to be conferred specifically and cannot be assumed to be an inherent power of a court. In the instant case, pardon has been granted by the Chief Metropolitan Magistrate, Bombay to PW 2 though there was no specific power of grant of pardon in TADA with the Chief Metropolitan Magistrate, and as such, the said pardon is ultra vires the scheme of TADA and the evidence of the said persons cannot be relied upon against the appellant.

292. In reply to the above contention, the learned Senior Counsel for CBI placed reliance on a three-Judge Bench decision of this Court in Harshad S. Mehta v. State of Maharashtra Harshad S. Mehta v. State of Maharashtra, 2001 8 SCC 257 wherein an identical objection was raised, namely, in the absence of specific provisions for grant of pardon, the Special Court has no power to grant pardon under the Special Court (Trial of offences relating to prosecutions in Securities) Act, 1992. Taking note of various provisions of the Code, particularly Chapter 24, this Court repelled the said contention.

293. Chapter 24 of the Code deals with general provisions as to inquiries and trials. Sections 306 and 307 of the Code deal with tender of pardon to an accomplice. Section 306 confers power upon the Magistrate and Section 307 on the court to which commitment is made. Section 308 provides for the consequences of not complying with the conditions of pardon by a person who has accepted tender of pardon made under Section 306 or Section 307.

294. The relevant provisions of the Code read as under:

“306. Tender of pardon to accomplice.—(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the First Class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

(2) This section applies to—

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952);

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub-section (1) shall record—

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the person to whom it was made,

and shall, on application made by the accused, furnish him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1)—

(a) shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case—

(a) commit it for trial—

(i) to the Court of Session if the offence is triable exclusively by that court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;

(ii) to a court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable exclusively by that court;

(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

307. Power to direct tender of pardon.—At any time after commitment of a case but before judgment is passed, the court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.

308. Trial of person not complying with conditions of pardon.—(1) Where, in regard to a person who has accepted a tender of pardon made under Section 306 or Section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence:

Provided that such person shall not be tried jointly with any of the other accused:

Provided further that such person shall not be tried for the offence of giving false evidence except with the sanction of the High Court, and nothing contained in Section 195 or Section 340 shall apply to that offence.

(2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under Section 164 or by a court under sub-section (4) of Section 306 may be given in evidence against him at such trial.

(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made; in which case it shall be for the prosecution to prove that the condition has not been complied with.

(4) At such trial, the court shall—

(a) if it is a Court of Session, before the charge is read out and explained to the accused;

(b) if it is the court of a Magistrate, before the evidence of the witnesses for the prosecution is taken,

ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made.

(5) If the accused does so plead, the court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall, notwithstanding anything contained in this Code, pass judgment of acquittal.”

295. In the case on hand, it was also contended that grant of pardon being a special power has to be conferred specifically.

296. After adverting to the abovementioned provisions of the Code and in the absence of any specific exclusion or bar for the application for grant of pardon by Special Courts in the Code, in Harshad S. Mehta, this Court has concluded:

“21. … But, it does not necessarily follow therefrom that the power to tender pardon under Sections 306 and 307 has not been conferred on the Special Court.”

In para 22, the Court has held as under: (Harshad S. Mehta case)

“22. The Special Court may not be a criminal court as postulated by Section 6 of the Code. All the same, it is a criminal court of original jurisdiction. On this count the doubt, if any, stands resolved by the decision of the Constitution Bench of this Court in A.R Antulay v. Ramdas Sriniwas Nayak A.R Antulay v. Ramdas Sriniwas Nayak, 1984 2 SCC 500. In Antulay case the Constitution Bench said that shorn of all embellishment, the Special Court is a court of original criminal jurisdiction and to make it functionally oriented some powers were conferred by the statute setting it up and except those specifically conferred and specifically denied, it has to function as a court of original criminal jurisdiction not being hidebound by the terminological status description of Magistrates or a Court of Session. Under the Code, it will enjoy all powers which a court of original criminal jurisdiction enjoys save and except the ones specifically denied.”

297. Posing these questions, the Bench in Harshad S. Mehta case analysed to see whether the power to grant pardon has been specifically denied to the Special Court established under the Act. The contention of the learned Senior Counsel was that the Act does not postulate commitment of the case to the Special Court and no provision having been inserted in the Act to empower the Special Court to tender pardon, hence, the impugned order granting pardon is without jurisdiction. In para 35, the Court has observed as under: (Harshad S. Mehta case)

“35. There cannot be any controversy that there is no express provision in the Act excluding therefrom the applicability of Sections 306 and 307 of the Code. Can it be said to be so, by necessary implication, is what we have to determine.”

298. The following conclusions in Harshad S. Mehta case are also relevant:

“51. The Code has been incorporated in the Act by application of the doctrine of legislation by incorporation. The power to grant pardon has not been denied expressly or by necessary implication. As earlier stated after decision in A.R Antulay it was not necessary to make specific provision in the Act conferring power on the Special Court to grant pardon at trial or pre-trial stage. The Special Court is a court of original criminal jurisdiction and has all the powers of such a court under the Code, including those of Sections 306 to 308 of the Code, the same not having been excluded specifically or otherwise.

52. There is no provision in the Act which negates the power of the Special Court to grant pardon. The Special Court has power to grant pardon at any stage of the proceedings. The power under Section 307 cannot be denied merely because no commitment of the case is made to the Special Court. The learned Solicitor General, in our view, rightly contends that the other statutes are only an external aid to the interpretation and to rely upon the omission of a provision which is contained in another different enactment, it has to be shown that the two Acts are similar which is not the position here. The scheme of the two Acts is substantially different as has been earlier noticed by us. It is also evident from Fernandes case 1968 1 SCR 695 as well.”

299. After arriving at such a conclusion, the Bench in Harshad S. Mehta case in para 55 held as under:

“55. In the present case, we are unable to find either any inconsistency or any provision which may indicate expressly or by necessary implication the exclusion of the provision of the Code empowering grant of pardon.”

After saying so, the Bench concluded as under:

“62. Our conclusion, therefore, is that the Special Court established under the Act is a court of exclusive jurisdiction. Sections 6 and 7 confer on that court wide powers. It is a court of original criminal jurisdiction and has all the powers of such a court under the Code including those of Sections 306 to 308.”

The above conclusion in Harshad S. Mehta case fully supports the stand taken by CBI and the ultimate decision arrived at by the Designated Court.

300. It was argued by the learned Senior Counsel appearing for CBI that the word “notwithstanding” appearing in various provisions of TADA shows that the Code would apply to all cases unless specifically provided for in TADA. He placed reliance on Section 4(2) of the Code which provides as follows:

“4. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

301. The other decision relied upon by the learned Senior Counsel for CBI to support his contention that the power of pardon does exist by necessary implication to cases under TADA is Lt. Commander Pascal Fernandes v. State of Maharashtra in which the question relates to tendering pardon to a co-accused under Section 8(2) of the Criminal Law Amendment Act of 1952. A three-Judge Bench of this Court, even after finding that Special Judge created under the Criminal Law Amendment Act, 1952 (46 of 1952) is not one established under the Code held: (AIR pp. 596-97, para 6)

“6. … For the cases triable by Special Judges under Criminal Law Amendment Act, a special provision is to be found in Section 8(2) of that Act, for tender of pardon to an accomplice, as part of the procedure and powers of Special Judges. … on the tender of pardon by the Special Judge the provisions of Sections 339 and 339-A of the Code will apply.”

302. It was submitted on behalf of the appellant that even if Section 306 of the Code is held to be applicable, power to grant pardon could be exercised only by the Designated Judge and not by the Chief Judicial Magistrate and as in the present case the power was exercised by the Chief Metropolitan Magistrate and not by the Designated TADA Judge, the said exercise of power was illegal and renders the grant of pardon bad in law.

303. The above contentions of Mr Jaspal Singh, learned Senior Counsel for A-1 are not acceptable since several provisions in TADA clearly show that the Code would apply to all cases.

304. In view of Section 4 of the Code, trial of all offences under the Penal Code or any other laws including TADA have to be investigated, enquired into, tried and dealt with according to the provisions contained in the Code which read as under:

“4. Trial of offences under the Indian Penal Code and other laws.—(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

Section 4(2) of the Code makes it clear that all the offences under any other law shall be investigated, inquired into, tried and dealt with according to the provisions of the Code but subject to specific clause/reference of the Special Act. It is also clear from Section 5 of the Code that in the absence of specific provisions in any enactment, the provisions of the Code shall govern for the purpose of investigation, enquiry, etc.

305. As per Section 2(1)(b) TADA, “Code” means the Code of Criminal Procedure, 1973 (2 of 1974). Section 7(3) TADA makes it clear that the provisions of the Code shall, so far as may be and subject to such modifications made in the Act, apply to the exercise of powers by the officer under sub-section (1). Section 7(1) TADA makes it further clear that notwithstanding anything contained in the Code or in any other provision of this Act (TADA), the Central Government, for proper implementation of the provisions of the Act confers upon any officer, the power to investigate and proceed under the Act. As per Section 9, the Central Government or the State Government may, by notification in the Official Gazette, constitute one or more Designated Courts for such area or areas or for such class or classes or group of persons by specifying in the notification.

306. The procedure and powers of Designated Courts have been mentioned in Section 14 TADA. Section 14(2) makes it clear that if any offence is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Designated Court may, notwithstanding anything contained in sub-section (1) of Section 260 or 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of Sections 263 to 265 of the Code shall apply to such trial. Section 14(3) TADA specifically confers upon the Designated Court all the powers that can be exercised by a Court of Session under the Code which includes the power to grant pardon under Section 306 of the Code.

307. Section 14 TADA provides as follows:

“14. Procedure and powers of Designated Courts.—(1) A Designated Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts.

(2) Where an offence triable by a Designated Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Designated Court may, notwithstanding anything contained in sub-section (1) of Section 260 or Section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of Sections 263 to 265 of the Code, shall, so far as may be, apply to such trial:

Provided that when, in the course of a summary trial under this sub-section, it appears to the Designated Court that the nature of the case is such that it is undesirable to try it in a summary way, the Designated Court shall recall any witnesses who may have been examined and proceed to rehear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation to a Designated Court as they apply to and in relation to a Magistrate:

Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Designated Court to pass a sentence of imprisonment for a term not exceeding two years.

(3) Subject to the other provisions of this Act, a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session.

(4) Subject to the other provisions of this Act, every case transferred to a Designated Court under sub-section (2) of Section 11 shall be dealt with as if such case had been transferred under Section 406 of the Code to such Designated Court.

(5) Notwithstanding anything contained in the Code, a Designated Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination.”

308. Section 18 TADA also makes it clear that after taking cognizance of any offence, if the Designated Court is of the opinion that the offence is not triable by it, or it shall notwithstanding that it had no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code and the court to which the case is transferred may proceed with the trial of offence as if it had taken cognizance of the offence. Section 20 TADA makes it clear that certain provisions of the Code are automatically applicable and the Designated Court is free to apply those provisions from the Code for due adjudication of the cases under the Act.

309. So, from the above, it is clear that no provision of TADA is inconsistent with the provisions of the Code of Criminal Procedure, 1973, for grant of pardon as envisaged under Sections 306 to 308.

310. While upholding the power of the special courts established under a Special Courts Act to grant pardon under Section 306 of the Code, this Court, in Harshad S. Mehta held thus:

“61. … It is also not possible to accept that it was intended by necessary implication that the Special Court under the Act shall not have the power to grant pardon. All powers of Sections 306 to 308 to the extent applicable and can be complied are available to the Special Court under the Act. The provisions of the Act and the Code can stand together. There is no inconsistency. The two statutory provisions can harmoniously operate without causing any confusion or resulting in absurd consequences and the scheme of the Code can, without any difficulty, fit in the scheme of the Act.”

311. Further, TADA does not preclude the applicability of Section 306 of the Code. As observed earlier, Section 306(2)(b) is clear in that it is specifically applicable to instances where the offence for which an accused is being tried is punishable with imprisonment extending to seven years or more. In the instant case, the approver was accused of offences which carried the maximum punishment as capital punishment.

312. The object of Section 306 is to tender pardon in cases where a grave offence is alleged to have been committed by several persons so that the offence could be brought home with the aid of evidence of the person pardoned. The legislative intent of this provision is, therefore, to secure the evidence of an accomplice in relation to the whole of circumstances, within his knowledge, related to the offence and every other person concerned.

313. In the light of the above analysis, we hold that the power to grant pardon under Section 306 of the Code also applies to the cases tried under the provisions of TADA and there was no infirmity in the order granting pardon to the approver (PW 2) in the facts and circumstances of the present case.

314. It is further contended on behalf of the appellant (A-1) that the deposition of PW 2 cannot be relied upon since the procedure laid down in Section 306(4)(a) of the Code was not followed. In the instant case, the CMM granted pardon to PW 2 on 28-9-1993 in compliance with the provisions of Section 306. Section 306(4)(a) requires that the Court of the Magistrate taking cognizance of the offence shall examine the witness. In the instant case, where the appellant has been charged with the offences under TADA, the Designated Court established under TADA alone has the jurisdiction to take cognizance of the offences under TADA. Section 14 TADA provides that a Designated Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such an offence or upon a police report of such facts. Section 306(5) CrPC contemplates committal of a case by the Magistrate taking cognizance of the offence to the court of appropriate jurisdiction. In the instant case, there did not arise an occasion for the Magistrate to commit the case to the Designated Court by virtue of the abovesaid provision contained under Section 14 TADA whereby the Designated Court had jurisdiction to take cognizance and try the offences under TADA.

315. This Court in Sardar Iqbal Singh v. State (Delhi Admn.) 1977 4 SCC 536, while dealing with a case where the offence was triable by the Special Judge who also took cognizance of the offence and like the present case, no committal proceedings were involved, held as under:

“5. From these provisions it would appear that where a person has accepted a tender of pardon under sub-section (1) of Section 337 at the stage of investigation in a case involving any of the offences specified in sub-section (2-B), the prosecution can file the charge-sheet either in the Court of a competent Magistrate or before the Special Judge who under Section 8(1) of the Criminal Law Amendment Act, 1952 has power to take cognizance of the offence without the accused being committed to him for trial. It follows that if the Magistrate takes cognizance of the offence, the approver will have to be examined as a witness twice, once in the Court of the Magistrate and again in the Court of the Special Judge to whom the Magistrate has to send the case for trial, but if the charge-sheet is filed directly in the Court of the Special Judge, he can be examined once only before the Special Judge. This means that in a case where the charge-sheet is filed in the Court of a Magistrate, the accused gets an opportunity of having the evidence of the approver at the trial tested against what he had said before the Magistrate; the accused is denied this opportunity where the charge-sheet is filed in the Court of the Special Judge. Whether the accused will get the advantage of the procedure which according to the appellant is more beneficial to the accused, thus depends on the Court in which the proceeding is initiated, and, it is contended, if the choice of forum is left to the prosecution, it will result in discrimination. Mr Sen submits that the only way to avoid this position is to read sub-sections (1), (2) and (2-B) of Section 337 of the Code and Section 8(1) of the Criminal Law Amendment Act, 1952 together and to construe them in a way to require that in every case where an accomplice is granted pardon, the charge-sheet must be filed in the Court of a Magistrate.

6. We are unable to accept the contention. It is clear from the scheme of Section 337 that what is required is that a person who accepts a tender of pardon must be examined as a witness at the different stages of the proceeding. Where, however, a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once. It is true that in such a case there would be no previous evidence of the approver against which his evidence at the trial could be tested, which would have been available to the accused had the proceeding been initiated in the Court of a Magistrate who under sub-section (2-B) of Section 337 of the Code is required to send the case for trial to the Special Judge after examining the approver. But we do not find anything in sub-section (2-B) of Section 337 to suggest that it affects in any way the jurisdiction of the Special Judge to take cognizance of an offence without the accused being committed to him for trial. Sub-section (2-B) was inserted in Section 337 in 1955 by Amendment Act 26 of 1955. If by enacting sub-section (2-B) in 1955 the legislature sought to curb the power given to the Special Judge by Section 8(1) of the Criminal Law Amendment Act, 1952, there is no reason why the legislature should not have expressed its intention clearly. Also, the fact that the approver's evidence cannot be tested against any previous statement does not seem to us to make any material difference to the detriment of the accused transgressing Article 14 of the Constitution. The Special Judge in any case will have to apply the well-established tests for the appreciation of the accomplice's evidence. This Court in Maganlal Chaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay 1975 1 SCC 339 held that the mere availability of two procedures would not justify the quashing of a provision as being violative of Article 14 and that

‘what is necessary to attract the inhibition of Article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other …’.

In our opinion, there is no such qualitative difference in the two procedures; whether a witness is examined once or twice does not in our opinion make any such substantial difference here that one of them could be described as more drastic than the other. The appeal is accordingly dismissed.”

316. In view of the above discussion and the rationes decidendi of the decisions of this Court, we are of the view that the provisions of sub-section (4) of Section 306 have not been violated and there is no illegality in not having examined the approver twice by the Designated Court.

Other witnesses

Evidence of Shri P.K Jain (PW 189)

317. PW 189 joined Maharashtra Police in January, 1983 as an Assistant Superintendent of Police. He was promoted as Superintendent of Police in April, 1985. The rank of Superintendent is equivalent to the rank of Deputy Commissioner of Police (DCP) in Greater Bombay. He is conversant and well versed with English, Hindi, Marathi and Punjabi languages and according to him, he is able to speak, read and write the said four languages. Since January 1993, he was posted as DCP, Zone IX, Bombay. In February 1993, Zone IX of Bombay was re-named as Zone X and he functioned as DCP for Zone X up till August, 1994.

318. PW 189 recorded the confessional statement of 96 accused persons in this case. First, he recorded the confessional statement of A-11. He explained before the court the relevant provisions of TADA for recording a confession, procedure to be followed, etc. He also deposed before the court that before recording a confession, he used to receive a letter of requisition for the same. He also explained that on each and every occasion, he explained his position to the accused who intended to make a confession and apprised him of the fact that there was no compulsion on the part of the accused to make a confessional statement and also informed the court that he had also explained to the accused that the confession would be used against him. He further explained that upon the production of each accused, he verified that the accused was not under compulsion and was free from any pressure either by the investigating agency or by anyone else. He also informed the court that after highlighting all the procedures and satisfying himself, he allowed every accused to have 48 hours' breathing time and asked the accused concerned that still if he was desirable to make such a statement he was free to appear before him in his office. His evidence also shows that whenever such accused was produced, he used to verify that no police personnel or anybody else was present inside his chamber and recorded his confessional statement after closing the door and only after proper verification.

319. PW 189 also informed the court that every accused who has made a statement before him was apprised of the fact of his position i.e DCP, Zone X. After making sure that the accused understood his position and after verifying the language, in which he desired to make a statement, recorded the same in his own handwriting. He also explained that no accused had raised any complaint/grievance against any police officer or police in general. He also said that he had asked all the accused who confessed before him “whether he was under any fear or pressure or given any inducement for making the confession”. After completion of his recording in his own handwriting and after explaining the same to the accused in the language known to him, he obtained the signature of the accused on all the pages. After satisfying the accused about the confessional statement made and the procedure followed, PW 189 used to hand over the custody of the said accused to the police officer concerned. Thereafter, the recorded confessions were sealed in one envelope and after preparing a covering letter, the same were sent to the Chief Metropolitan Magistrate. According to him, he also obtained the acknowledgement for receipt of the same in the said court through his subordinate officers.

320. PW 189 also informed the court that by following the said elaborate procedure, he recorded the confessional statements of various accused viz. A-11, A-67, A-17, A-12 and A-9. He also informed the court that he had issued the necessary certificate as required under Rule 15 of the Rules. He also issued a certificate regarding the voluntariness of the confession made by the accused and the correctness of the record of the same prepared by him. He also signed below the said certificates. He also produced and marked the letters of requisition received by him from various investigating officers for recording the confession.

321. In the cross-examination, PW 189 specifically informed the court that he had not investigated any offence under TADA. He also clarified that in his Zone i.e Zone-X, none of the bomb explosions had occurred and that no case was registered with regard to the same. He also stated that he was not asked to carry out any investigation in connection with LAC Case No. 389 of 1993 registered with Worli Police Station and according to him, the area under Worli Police Station does not fall within the jurisdiction of Zone X.

322. With regard to the allegation that the confession was recorded in the police station, PW 189 explained that he had recorded the confession in the chamber of DCP, Zone IV at Matunga. According to him, the said office is situated in the building in which Matunga Police Station is also housed. However, he explained that the office of DCP, Zone IV is on the fourth floor of the said building. For a further query, he also clarified that Zone IV office is a different office than the Matunga Police Station. He asserted that he had followed the procedures mentioned in the Rules and instructions while making the record of confession of all the accused whose confessions were recorded by him.

Evidence of Shri K.L Bishnoi (PW 193)

323. According to PW 193, he had joined the Police Department in January, 1986 as an Assistant Superintendent of Police. He was promoted as Superintendent of Police in January, 1990 and was posted at Latur as Superintendent of Police. He was posted as DCP in Bombay from April, 1992 up till December, 1995. He worked in Bombay City in various categories. He also informed the court that the post of Superintendent of Police in District is equivalent to Deputy Commissioner of Police (DCP) in Commissionerate area. He admitted that he had supervised one case registered with Worli Police Station then under his jurisdiction and one crime registered in connection with the serial bomb blasts which had occurred in the month of March 1993. He had recorded confessions of several accused persons arrested in the year 1993 in connection with the offences for which the crimes were registered in respect of the bomb blasts which had occurred in the month of March 1993 in Bombay.

324. PW 193 explained before the court the relevant provisions of TADA for recording a confession, procedure to be followed, etc. He also deposed before the court that before recording a confession, he used to receive a letter of requisition for the same. He also explained that on each and every occasion he had explained his position to the accused who intended to make a confession and had apprised him of the fact that there is no compulsion on the part of the accused to make a confessional statement and also informed the court that he had also explained to each accused that the confession would be used against him and there was no compulsion to make such a statement. He further explained that upon production of each accused, he verified that the accused was not under compulsion and was free from any pressure either by the investigating agency or by anyone else. He also informed the court that after highlighting all the procedures and satisfying himself, he allowed the accused to have 48 hours' breathing time and asked the accused concerned that still if he was desirable to make such a statement, he was free to appear before him in his office.

325. PW 193's evidence also shows that whenever such accused were produced, he would verify that no police personnel or anybody else was present in his chamber and recorded the confessional statements after closing the door and after proper verification that nobody was there inside. He also informed the court that every accused who made a statement was apprised of the fact of his position i.e DCP. After making sure that the accused understood his position and after verifying the language in which he desired to make a statement, he recorded the same in his own handwriting. He also used to tell the respective accused that during the said period of two days i.e 48 hours, he would be kept at another police station away from the influence of IO.

326. PW 193 further explained that he used to write the question after asking the same to the accused and record the answer to the said question after the same was given by the accused. He further made it clear that he was following the same procedure while making the record on the typewriter instead of writing the questions asked, he was dictating the same to the typist. After recording in the aforesaid manner, he would read over the whole confessional statement to the accused in the language known to him. He would also obtain signatures on all the pages of the accused concerned. After satisfying the accused about the confessional statement made and the procedure followed, he would hand over the custody of the said accused to the police officer concerned. Thereafter, the recorded confessions were sealed in one envelope and after preparing a covering letter, the same were sent to the Chief Metropolitan Magistrate. According to him, he also obtained the acknowledgement for receipt of the same in the said court through his subordinate officers.

327. PW 193 also informed the court that by following the said elaborate procedure, he recorded the confessional statements of the following accused, namely, Gul Mohammed (A-77), Asgar Yusuf Mukadam (A-10), Dawood Phanse (A-14), Shaikh Ali (A-57), Mobina (A-96), Imtiyaz Ghavate (A-15), Sanjay Dutt (A-117), Nulwalla, Kersi Bapu Adajania, Mohd. Usman Jan Khan (PW 2) and Raju Kodi (A-26).

328. In respect of a question asked regarding whether during the relevant period PW 193 was not only supervising the investigation of the said case (LAC No. 381 of 1993) but also coordinating the investigation, he admitted to the same. In para 584 of his evidence, in reply, he admitted that he had the recorded confessions of accused A-14, A-10 and Sujat Alam in a period when he was supervising the investigation of the case against them. However, he clarified that the Public Prosecutor has produced and marked an order dated 22-4-1993 passed by the Joint Commissioner of Police regarding the overall supervision of investigation of the Bombay Bomb Blast Case being given to DCB (CID).

Recording of confessions by police officers

329. Further, it is contended that confessions recorded before the police officers should be discarded since the same were recorded by the officers who were also supervising the investigation. To this, the prosecution pointed out that in the instant case, the confessions of the accused have been recorded after following all the safeguards as enumerated under Section 15 TADA and the Rules framed thereunder. It is further pointed out that the appellants have volunteered to confess their role in the crime and they were aware of the fact that they were under no compulsion to make a confession and that the same could be used against them.

330. Further, this Court in S.N Dube v. N.B Bhoir negated a similar contention and held that no illegality or impropriety persists in recording of a confession by an officer supervising the investigation:

“28. The confessions have been held inadmissible mainly on two grounds. The first ground given by the learned trial Judge is that the power under Section 15 of the TADA Act was exercised either mala fide or without proper application of mind. The second ground on which they are held inadmissible is that they were recorded in breach of Rules 15(2) and 15(3) of the TADA Rules and also in breach of the requirements of Section 164 and the High Court Criminal Manual. The learned trial Judge held that the TADA Act was applied in this case without any justification. The permission was granted in that behalf without any application of mind. According to the trial court there was no material on the basis of which the TADA Act could have been invoked at that stage and that most probably the said Act was invoked in order to defeat the bail application filed by two accused in the High Court. In our opinion the trial court was wrong in taking this view. We have already pointed out earlier that Deshmukh had collected enough material on the basis of which reasonable satisfaction could have been arrived at that the acts committed by the two gangs were terrorist acts. It is no doubt true that it was wrongly reported by Deshmukh that Section 5 was also applicable in this case and that without proper verification sanction was granted to proceed under that section also. The applicability of Section 5 depended upon the existence of a requisite notification by the State Government. It was wrongly reported by PI Deshmukh in his report that such a notification was issued and relying upon his statement the higher officer had given the sanction. Merely on this ground it cannot be said that Shinde has exercised the power under Section 15 of the TADA Act mala fide. The learned trial Judge has also held that it was not fair on the part of Shinde to record the confessions as he was also supervising the investigation. Shinde has clearly stated in his evidence that he had made attempts to find out if any other Superintendent of Police was available for recording the confessions and as others had declined to oblige him he had no other option but to record them. We see no illegality or impropriety in Shinde recording the confessions even though he was supervising the investigation. One more flimsy reason given by the trial court for holding that the power under Section 15 was exercised mala fide is that the accused making the confessions were not told that they had been recorded under the TADA Act. No such grievance was made by the accused in their statement under Section 313. On the other hand, it appears from the confessions themselves that the accused were made aware of the fact that those confessions were recorded under the TADA Act.”

331. Further, in Mohd. Amin v. CBI, this Court held as under:

“61. The question whether confessions of Appellants A-4 to A-8 and A-10 should be treated as non-voluntary and held inadmissible on the ground that the same were made before the officers who were supervising the investigation deserves to be considered in the backdrop of the following facts:

(i) Each of the confessing appellants had volunteered to confess his role in the crime.

(ii) Their confessions were recorded strictly in accordance with the manner and procedure prescribed in Section 15 of the Act and Rule 15 of the Rules.

(iii) In reply to the questions put by Shri A.K Majumdar and Shri Harbhajan Ram, each of the confessing appellants replied that he was aware of the fact that he was under no compulsion to make confession and that the same can be used against him and that there was no threat, coercion or allurement for making confession.

(iv) When Appellant A-10 was produced before the Chief Metropolitan Magistrate, Delhi on 25-7-1996, he did state that he has not made any confessional statement but did not utter a word about any threat, coercion, inducement or allurement by Shri Harbhajan Ram (PW 103) for making confession.

(v) At the end of the period specified in transit warrants, all the confessing appellants were produced before the Magistrate concerned at Ahmedabad with an application for their remand to judicial custody. None of them made any grievance of ill-treatment, torture (physical or mental), inducement or allurement by the investigating officers or supervising officers or claimed that he had made confession under any other type of compulsion. Even when they were in judicial custody, none of the appellants made a grievance that he was tortured, threatened or coerced by the investigating officers or supervising officers or that any allurement was given to him to make the confession.

(vi) All the confessing appellants were facing trial in a number of other cases [this is evident from the statement of PW 100, Mr Satyakant, the then Deputy Inspector General of Police, CID, Crime (Ext. 430)] in which they were duly represented by advocates but till the recording of the statements under Section 313 CrPC, neither they nor their advocates made a grievance regarding denial of legal assistance or alleged that any threat was given to either of them or they were subjected to physical or mental torture or that undue influence was exercised by the investigating officers or the supervising officers or any allurement was given for the purpose of making confession.

62. Both the investigating officers, namely, Shri R.K Saini (PW 122) and Shri O.P Chatwal (PW 123) were subjected to lengthy cross-examination. Shri R.K Saini denied the suggestion that Appellant A-10 Salimkhan was never willing to give any confessional statement and his statement was not recorded. He also denied the suggestion that Appellant A-10 had complained to the Chief Metropolitan Magistrate that he was ill-treated by the officers while in custody. In his cross-examination, Shri O.P Chatwal (PW 123) categorically denied the suggestion that Shri A.K Majumdar had instructed him to ill-treat the accused. He further stated that none of the accused was ill-treated mentally or physically by CBI. Shri Chatwal also denied the suggestion that the confessional statements of the accused were prepared by him and their signatures were obtained on the same. In reply to another question, he denied that the accused had sought for the presence of advocate but the same was declined.

63. In their statements, PW 103 Shri Harbhajan Ram and PW 104 Shri A.K Majumdar explained the details of the mode and manner in which confessions of the accused were recorded. Both of them categorically stated that before recording the confession each of the accused was told that he is not bound to make confession and that the same can be used against him and whether there was any threat, coercion or allurement for making confession. According to the two witnesses, each of the accused expressed unequivocal willingness to confess his role in the crime by stating that he knew that the confession can be used against him, that there was no threat, coercion or allurement and that he was making confession voluntarily.

64. According to PWs 103 and 104, the statements of the accused were recorded by the stenographers verbatim and each one of them appended signatures after satisfying that the same was correctly recorded. In reply to the suggestion made to him in cross-examination that the accused had been subjected to torture, PW 104 categorically stated that none of the accused was ill-treated by him or any other officer/official. The defence had made suggestion about the nature and extent of supervision exercised by PW 104 but it was not put to them that either instructed the investigating officers to torture the accused and forced them to confess their guilt. In this view of the matter, the confessions of Appellants A-4 to A-8 and A-10 cannot be held inadmissible on the premise that before recording of confessions they were in police custody and the statements were recorded by the officers supervising the investigation.”

332. Similarly, in Lal Singh v. State of Gujarat this Court was pleased to observe:

“91. The next contention that Rule 15 of the TADA Rules has not been followed also does not carry any weight. For this purpose, we would refer to the evidence of PW 128, PW 132 and PW 133. PW 128 Satishchandra Rajnarayanlal, who was SP, CBI II, Punjab Cell at New Delhi in 1992 stated that he registered the offence RC No. 6-SII/92. He recorded the confessional statements of A-1 Lal Singh, Ext. 620 and A-3 Tahir Jamal, Ext. 618 along with other accused. Before recording confessional statements, he ascertained from every accused whether they were voluntarily ready to give confessional statements. Necessary questions were put to them and time was given to them to think over the matter. After being satisfied that they were willing to give voluntary confessional statements, he recorded their confessional statements. PW 132 Padamchandra Laxmichandra Sharma, who was SP, CBI, SIC II at the relevant time stated that when he took over the charge of this case RC No. 6-(S)/92 from Mr Satishchandra, this case was in the last phase. Deputy SP, CBI, D.P Singh (PW 136) had produced A-2 Mohd. Sharief and A-20 Shoaib Mukhtiar before him on 8-7-1993 and 6-2-1994 for recording their voluntary confessional statements, which are Ext. 650 and Ext. 654 respectively. Before recording their statements, he warned them of the consequences of making confessional statements and further gave them time to think over the matter. On being satisfied that they wanted to give confessional statements, he recorded their statements. PW 133 Sharadkumar Laxminarayan, DIG Police, CBI, SIC II Branch, New Delhi stated that in the year 1992 he was SP in the same branch at New Delhi. On 5-11-1992 he was directed by DIG M.L Sharma to proceed to Ahmedabad in order to record statement of A-4 Saquib Nachan under Section 15 of the TADA Act. On 6-11-1992 after reaching Ahmedabad, Saquib Nachan was produced before him. He put necessary questions to A-4 Saquib Nachan. Before recording confessional statement, he ascertained from him whether he was voluntarily ready to give the confessional statement and warned him that if he made confessional statement, the same can be used against him. He also apprised the accused that he is not bound to make such statement. When the accused replied that he wanted to make clean admission of guilt, he recorded the confessional statement of A-4 Saquib Nachan. From the above evidence, it is clear that Rule 15 was fully followed by the witnesses, who recorded the confessional statements of the accused.”

333. Observations made in Lal Singh case in para 23 are also noteworthy:

“23. In view of the settled legal position, it is not possible to accept the contention of learned Senior Counsel Mr Sushil Kumar that as the accused were in police custody, the confessional statements are either inadmissible in evidence or are not reliable. Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The learned counsel further submitted that in the present case the guidelines suggested by this Court in Kartar Singh were not followed. In our view, this submission is without any basis because in the present case confessional statements were recorded prior to the date of decision in the said case i.e before 11-3-1994. Further, despite the suggestion made by this Court in Kartar Singh case, the said guidelines are neither incorporated in the Act nor in the Rules by Parliament. Therefore, it would be difficult to accept the contention raised by the learned counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in evidence, should not be relied upon for convicting the accused. Further, this Court has not held in Kartar Singh case that if suggested guidelines are not followed then confessional statement would be inadmissible in evidence. Similar contention was negatived by this Court in S.N Dube v. N.B Bhoir by holding that a police officer recording the confession under Section 15 is really not bound to follow any other procedure and the rules or the guidelines framed by the Bombay High Court for recording the confession by a Magistrate under Section 164 CrPC; the said guidelines do not by themselves apply to recording of a confession under Section 15 of the TADA Act and it is for the court to appreciate the confessional statement as the substantive piece of evidence and find out whether it is voluntary and truthful. Further, by a majority decision in State v. Nalini the Court negatived the contentions that confessional statement is not a substantive piece of evidence and cannot be used against the co-accused unless it is corroborated in material particulars by other evidence and the confession of one accused cannot corroborate the confession of another, by holding that to that extent the provisions of the Evidence Act including Section 30 would not be applicable. The decision in Nalini case was considered in S.N Dube case. The Court observed that Section 15 is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it and that the correct legal position is that a confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co-accused also.”

334. A perusal of the evidence of both the officers who recorded the confession of the accused clearly show that they were aware of the procedure to be followed before recording the confession of the accused and how the same is to be recorded. We are satisfied that before recording the confessional statements both the officers apprised the accused persons who wished to make the same that there is no compulsion on their part to make a confessional statement and thus also apprised them that the confessions would be used against them. It is also clear from their evidence that both of them had specifically verified whether such persons were under coercion, threat or promise at the time of making confession and all of them were given adequate time to think it over and make a confessional statement. It is also clear that after recording their confession, the same was explained to them in the language known to them and in token of the same, they put their signatures and the officers countersigned the same. Though in the cross-examination, both of them have admitted certain procedural violations, in the case of one or two persons, however, the verification of their entire evidence and the confessional statements of the accused concerned clearly show that there is no flagrant violation of any procedure. We are satisfied that the Designated Court was fully justified in relying upon the evidence of PW 189 and PW 193.

Special Executive Magistrates (SEM)

335. A contention was also raised that the SEMs were not Judicial Magistrates and their appointment was not made in accordance with law. It was contended that the SEMs who conducted the parades were not eligible to do so and so the entire evidence is vitiated. It is submitted that the Criminal Manual of the Bombay High Court in Chapter 1 expressly states that non-Judicial Magistrates or Honorary Magistrates should carry out identification parades. A Special Executive Magistrate is a non-Judicial Magistrate and is an honorary appointment by the Government.

336. Extracts of the relevant provisions from the said Criminal Manual are provided below:

“Identification parades

It is not desirable that Judicial Officers should associate themselves with identification parades. All Civil Judges and Judicial Magistrates are, therefore, directed that they should not participate in identification parades which are conducted by the police for investigation purposes.

In this connection, order in the Government Circular, Home Department, No. MIS. 1054/84588 dated 22-4-1955, is reproduced below for the information of the Civil Judges and Judicial Magistrates:

In the judgment delivered by the Supreme Court in Ramkishan Mithanlal Sharma v. State of Bombay AIR 1955 SC 104, it has been held that the statements made before police officers by witnesses at the time of identification parades are statements to the police, and as such are hit by Section 162 of the Code of Criminal Procedure, 1898. In view of that ruling, it is necessary that such parades are not conducted in the presence of police officers. The alternative is to take the help of the Magistrates or leave the matter in the hands of panch witnesses. There would be serious difficulties in panch witnesses conducting parades successfully.

In regard to Magistrates, it is not feasible to associate Judicial Magistrates with such parades. The only practicable course, therefore, is to conduct the parades under Executive Magistrates and Honorary Magistrates (not doing judicial work). The Government is accordingly pleased to direct that the police officers concerned should obtain the help of Executive Magistrates and Honorary Magistrates in holding identification parades.”

337. The Bombay High Court Criminal Manual requires that a non-judicial Magistrate (i.e including an SEM) should preferably conduct identification parades of accused persons. The Criminal Manual has adopted the principles enumerated by Archbold in his treatise Criminal Pleading, Evidence and Practice and states that such principles would apply mutatis mutandis to identification parades with suitable variations. These guidelines include:

(a) Identification parade should appear fair and precaution must be taken to exclude any suspicion of unfairness or risk of incorrect identification.

(b) Officer concerned with the suspect must not take part in the parade.

(c) Witnesses should be prevented from seeing the suspect before he is paraded.

(d) The suspect should be placed among persons of similar height, age, weight, etc. as far as possible.

(e) Witnesses should be introduced one by one and should be asked to identify the suspect. Witness should be free to touch any person.

(f) If parade takes place in a prison then the prison officer should be present throughout the parade.

(g) SEM should prepare a parade memorandum containing details of the time, place and date of the parade; details of panch witnesses; names of the persons standing in the parade; statements made by identifying witnesses, etc.

338. The particulars/materials placed by the prosecution show that the identification parades were carried out in compliance with the requirements of the Bombay High Court Criminal Manual.

339. It was further contended by the learned Senior Counsel for the accused that the identification parade should not have been conducted by the SEM. However, in the light of the provisions of the said Criminal Manual, identification parades should preferably be conducted by non-Judicial Magistrates (i.e Special Executive Magistrates) and that in the instant case identification parades were conducted by the Special Executive Magistrates in compliance with the provisions of the Criminal Manual.

340. The said Criminal Manual and the Government Circular, Home Department, No. MIS. 1054/84588 dated 22-4-1955 in clear terms require that non-Judicial Magistrates or Honorary Magistrates such as a Special Executive Magistrate should preferably conduct an identification parade and, accordingly, identification parades in the instant case were conducted by the Special Executive Magistrates.

Appointment of Special Executive Magistrates

341. It was further contended that Special Executive Magistrates are not trained Magistrates and they ought not to have conducted the proceedings. In this regard the law relating to the appointment of Special Executive Magistrates may be pertinent. Special Executive Magistrates (SEMs) are appointed by the State Government under Section 21 of the Code which states as follows:

“21. Special Executive Magistrates.—The State Government may appoint, for such term as it may think fit, Executive Magistrates, to be known as Special Executive Magistrates, for particular areas or for the performance of particular functions and confer on such Special Executive Magistrates such of the powers as are conferrable under this Code on Executive Magistrate, as it may deem fit.”

Section 21 is thus clear that the State Government can appoint SEMs for particular functions on such terms and conditions as it may deem fit.

342. Section 21 of the Code was enacted pursuant to the Thirty-seventh Report of the Law Commission of India which recommended creation of a special class of Magistrates for carrying out specific functions. This report also brought forth a draft of the new section for appointment of Special Magistrates for particular areas or for particular functions and confer upon them such powers as are conferrable on an Executive Magistrate under the Code. It may be noted that the Forty-first Report of the Law Commission*** did not approve of the creation of Special Magistrates. However, the Joint Select Committee of the Parliament agreed with the Thirty-seventh Report of the Law Commission and recommended amending the Code to provide for creation of a special class of Magistrates to carry out specific functions, upon whom powers exercised by an Executive Magistrate can be conferred. Accordingly, Section 21 was enacted.

343. Special Executive Magistrates are appointed by the State Government for a particular purpose and can exercise powers so conferred upon them by the State as are exercisable by an Executive Magistrate. It is useful to note that the legality of Section 21 of the Code which provides for appointment of Special Executive Magistrates was also considered by this Court in State of Maharashtra v. Mohd. Salim Khan 1991 1 SCC 550.

344. In Mohd. Salim Khan case, the State of Maharashtra appointed all Assistant Commissioner of Police (ACPs) in Greater Bombay area as Special Executive Magistrates. This Court, while upholding the appointment of ACPs as Special Executive Magistrates held as under:

“16. The purpose of empowering the State Government to appoint Special Executive Magistrates was evidently to meet the special needs of a particular area or to perform particular functions in a given area. Such appointments without adequate powers would be futile and the legislation without providing such powers would be pointless. It can be assumed that Parliament does not indulge in pointless legislation. Indeed, it has not done so in Section 21. A careful analysis of the section indicates very clearly that the Special Executive Magistrates are also Executive Magistrates.”

Provisions of TADA in this regard

345. Section 20 TADA provides for certain modifications to the provisions of the Code. One such modification was made to Section 21 of the Code which provides that a Special Executive Magistrate can also be appointed by the Central Government in addition to the State Government as provided for in the Code. Similarly, another modification provides that a Special Executive Magistrate may also record statements made under Section 164 of the Code.

346. Section 20 TADA provides as follows:

“20. Modified application of certain provisions of the Code.—(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act or any rule made thereunder, shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code, and ‘cognizable case’ as defined in that clause shall be construed accordingly.

(2) Section 21 of the code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modification that the reference to ‘the State Government’ therein shall be construed as a reference to ‘the Central Government or the State Government’.

(3) Section 164 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder, subject to the modification that the reference in sub-section (1) thereof to ‘Metropolitan Magistrate or Judicial Magistrate’ shall be construed as a reference to ‘Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate’.”

Section 20 TADA expressly permits that Section 21 of the Code applies in relation to an offence punishable under TADA. Accordingly, a Special Executive Magistrate may be appointed in a TADA case either by the State Government or the Central Government to perform such functions as the government may deem fit. Special Executive Magistrates may perform such functions as are required in a TADA case.

347. In the instant case, Special Executive Magistrates conducted identification parades of arrested accused persons in compliance with the provisions of the Criminal Manual of the Bombay High Court. Section 20 TADA read with Section 21 of the Code permits a Special Executive Magistrate to carry out such functions as are required in a TADA case and accordingly in the instant case Special Executive Magistrates, inter alia, conducted identification parades of the accused persons.

348. The constitutional validity of Section 20 TADA has been upheld by this Court in Kartar Singh v. State of Punjab, wherein this Court upheld that Special Executive Magistrates appointed under Section 21 of the Code can record confessional statements for offences committed under TADA and perform such other functions as directed. This Court held as follows:( & 696, paras 309 & 316)

“309. Therefore, merely because the Executive Magistrates and Special Executive Magistrates are included along with the other Judicial Magistrates in Section 164(1) of the Code and empowered with the authority of recording confessions in relation to the case under the TADA Act, it cannot be said that it is contrary to the accepted principles of criminal jurisprudence and that the Executive Magistrates and Special Executive Magistrates are personam outside the ambit of machinery for adjudication of criminal cases.

***

316. … Therefore, the contention of the learned counsel that the conferment of judicial functions on the Executive Magistrates and Special Executive Magistrates is opposed to the fundamental principle of governance contained in Article 50 of the Constitution cannot be countenanced. Resultantly, we hold that sub-section (3) of Section 20 of the TADA Act does not offend either Article 14 or Article 21 and hence this sub-section does not suffer from any constitutional invalidity.”

349. In the instant case, which involves offences punishable under TADA, Special Executive Magistrate can be appointed and carry out such functions, including conducting identification parades, as the Government may deem fit. In view of the same, contentions raised regarding SEMs are liable to be rejected.

Recoveries

350. Mr Jaspal Singh, learned Senior Counsel for A-1 submitted that based on the statement of Mohd. Hanif (PW 282) and other witnesses as well as confessional statements of the accused, several recoveries were made by the prosecution and in the absence of strict adherence to the procedure, those recoveries are inadmissible in evidence. He also pointed out that the seizure panchnama was not in accordance with the procedure and, more particularly, Section 27 of the Evidence Act. Now, let us consider how far the prosecution has established that the recovered articles/materials were either used or intended to be used for the bomb blasts on 12-3-1993 pursuant to the conspiracy hatched. Apart from the argument of Mr Jaspal Singh relating to a deficiency in the panchnama, Mrs Farhana Shah, learned counsel appearing for some of the accused has also raised the same contention.

351. Before going into the merits of the oral and documentary evidence led in by the prosecution, let us consider the salient features of a panchnama and whether the prosecution witnesses strictly adhered to the procedure contemplated for a valid panchnama.

Panchnama

352. The primary intention behind the panchnama is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search, with or without warrant and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. The legislative intent was to control and to check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of article.

Evidentiary value of panchnama

353. Panchnama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence/crime. However, it is not only the recordings of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is likely to be collected. The document so prepared needs to be signed by the investigating officer who prepares the same and at least by two independent and impartial witnesses called “panchas”, as also by the party concerned. The witnesses are required to be not only impartial but also “respectable”. “Respectable” here would mean a person who is not disreputed. One should also check if the witnesses are in their senses at the time of the panchnama proceedings. Only majors are to be taken as witnesses as minors' witnesses may not withstand the legal scrutiny.

354. Panchnama can be used as corroborative evidence in the court when that respectable person gives evidence in the court of law under Section 157 of the Evidence Act. It can also be used as evidence of the recorded transaction by seeing it so as to refresh their memory under Section 159 of the Evidence Act.

Provisions relating to panchnama in the Code

355. The word “panchnama” is nowhere stated in the Code, but it can be construed from the language of certain provisions under the Code. Sections 100 and 174 of the Code mandate the presence of respectable persons as witnesses at the time of search and investigation respectively.

“100. Persons in charge of closed place to allow search.—(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.

(2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of Section 47.

(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the court as a witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.

(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860).

***

174. Police to inquire and report on suicide, etc.—(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of inquiry as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

(2)-(4)***”

(emphasis supplied)

356. Section 100 of the Code was incorporated in order to build confidence and a feeling of safety and security among the public. Section 100 sub-sections (4) to (8) stipulate the procedure with regard to search in the presence of two or more respectable and independent persons preferably from the same locality. The following mandatory conditions can be culled out from Section 100 of the Code for a valid panchnama:

356.1 All the necessary steps for personal search of officer (inspecting officer) and panch witnesses should be taken to create confidence in the mind of court that nothing is implanted and true search has been made and things seized were found real.

356.2 Search proceedings should be recorded by the IO or some other person under the supervision of the panch witnesses.

356.3 All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the panchnama.

356.4 The IO can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the panchnama after the signature of the main IO.

356.5 Place, name of the police station, officer rank (IO), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the panchnama.

356.6 The panchnama should be attested by the panch witnesses as well as by the IO concerned.

356.7 Any overwriting, corrections, and errors in the panchnama should be attested by the witnesses.

356.8 If a search is conducted without warrant of court under Section 165 of the Code, the IO must record reasons and a search memo should be issued.

357. Section 174 of the Code enumerates the list of instances where the police officers are empowered to hold inquests, the proviso to this section mandates the inquest to be conducted in the presence of two or more respectable inhabitants of the neighbourhood.

Circumstances when the panchnama is inadmissible

358. The panchnama will be inadmissible in the court of law in the following circumstances:

358.1 The panchnama recorded by the IO under his supervision should not be hit by Section 162 of the Code. The procedure requires the IO to record the search proceedings as if they were written by the panch witnesses himself and the same should not be recorded in the form of examining witnesses as laid down under Section 161 of the Code.

358.2 The panchnama must be attested by the panch witnesses for it to be valid in the eye of the law. In case of a literate panch witness, he must declare that he has gone through the contents of panchnama and it is in tune with what he has seen in the places searched, whereas for an illiterate panch witness, the contents should be read over to him for his understanding and then the signature should be appended. If the abovesaid declaration is not recorded, then the panchnama document will be hit by Section 162 of the Code.

359. On any deviation from the procedure, the entire panchnama cannot be discarded and the proceedings are not vitiated. If any deviation from the procedure occurs due to a practical impossibility then that should be recorded by the IO in his file so as to enable him to answer during the time of his examination as a witness in the court of law. Where there is no availability of panch witnesses, the IO will conduct a search and seize the articles without panchas and draw a report of the entire such proceedings which is called as a “Special Report”.

360. In Pradeep Narayan Madgaonkar v. State of Maharashtra 1995 4 SCC 255, this Court upheld that:

“11. … the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible a corroboration of their evidence in material particulars should be sought. Their desire is to see the success of the case based on their investigation [and] requires greater care to appreciate their testimony.”

361. In Mohd. Hussain Babamiyan Ramzan v. State of Maharashtra 1994 Cri LJ 1020 Bom and Panalal Damodar Rathi v. State of Maharashtra 1979 4 SCC 526 it was held that normally, it is expected that the investigating officer will take independent panch witnesses and if knowingly he has taken pliable witnesses as panch witnesses then the entire raid would become suspect and in such a case it would not be possible to hold that the evidence of police witnesses by themselves would be sufficient to base conviction.

362. In M. Prabhulal v. Directorate of Revenue Intelligence 2003 8 SCC 449 and Ravindra Shantaram Sawant v. State of Maharashtra 2002 5 SCC 604, this Court came to the conclusion that mere non-examination of the panch witnesses, who are normally considered as independent witnesses, would not be sufficient to discard the evidence of the police witnesses, if their evidence is otherwise found to be trustworthy.

363. In Rameshbhai Mohanbhai Koli v. State of Gujarat 2011 11 SCC 111 this Court held that merely because the panch witnesses have turned hostile is no ground to reject their evidence in toto but the same can be accepted to the extent that their version was found to be dependable on a careful scrutiny.

364. Keeping the above principles in mind, let us consider the recoveries made through prosecution witnesses. Altaf Ali Mustaq Ali Sayed (A-67), in his confessional statement narrated about various articles and also identified the articles used for the preparation of the bombs. He made his confessional statement before Mr P.K Jain (PW 189), the then DCP, Zone X, Bombay. Since we are concerned about the recoveries, we are not adverting to his entire statement for the present.

365. A-67 in his confessional statement implicated A-1 at many places. He informed the officer that A-1 asked him to get the tickets to Dubai confirmed on short notice since he was working as a recruiting agent. For this, he assured A-1 that it would be possible for him to arrange tickets even on short notice. Thereafter, when he returned to his office, in the evening, he received a call from Amjad telling him that as discussed in the morning with A-1, bags have been sent for keeping the same with him. After saying so, he brought four bags in which one was a big brown-coloured VIP bag, one small and one black-coloured VIP like bag and two handbags tied together, from a jeep parked in the compound and handed over the same to him. The next day, according to him, A-1 telephoned him and verified whether Amjad had handed over the bags to him. He answered in the affirmative, then he asked to book 4-5 tickets to Dubai. A-1 also sent the names with money through one Rafiq Madi (A-46), who was also a resident of Mahim and known to him for the last 10-12 years. He booked 15/16 tickets for them. Rafiq Madi, who used to bring the money every time, took the tickets.

366. In his further confession, A-67 stated that after 10-12 days Amjad handed over three bags through Rafiq for keeping the same with him (A-67), out of them, one was big and two were small and A-46 kept them in his office and told him that Yakub Memon had sent these bags and these were to be sent along with the persons going abroad. He gave them 5 tickets in the first week of March and all the persons went away but the bags remained lying there, then he spoke to Yakub Memon over phone and asked as to when he will take away the bags. For this, A-1 replied that he will take away the same in a couple of days. On the same day, in the afternoon, at 2 p.m, A-1 called him and directed him to send those bags to him since he had nobody with him. Then, at 6 o'clock, in the evening he put all those bags in his Maruti car and reached his building. He further explained that among those bags, four bags were given to him by Amjad and one small bag was given by Rafiq Madi. He could not give the other two bags due to their being heavy. When he asked the watchman to call Yakub bhai, at that time, a servant girl, aged about 10/12 years, came down with the keys of garage and put those bags inside the garage of Yakub bhai. When he returned to his house, he telephoned Yakub Memon (A-1) that he had given five bags to his watchman and he had put them in his garage.

367. Thereafter, A-67 went to Borivali where he heard that bombs had exploded at several places in Bombay on Friday i.e 12-3-1993. After 2-3 days, when he read the newspaper and came to know that Yakub Memon and his men were behind the blasts then he got very scared. The other two bags were lying in his office. He further stated before the DCP that during this period, Amjad had gone to Karachi and London on 21st/22nd March. He gave both the bags to Yakub Memon (A-1) through a taxi driver viz. Mohd. Hanif, who used to handle all his parties, etc. and told him to keep those bags with him and return as and when required or when he was asked for the same. He also stated that the police came to his office on 26-3-1993, at about 5 o'clock and inquired about the bags which Amjad had given to him and he explained to them in detail. Later, he realised and believed that the bags kept in his office by Yakub Memon through Amjad contained gunpowder, arms and ammunition and he and his men used all that for the bomb blasts in Bombay.

368. In his confessional statement before the recording officer, A-67 stated that, at first A-1 told him that it contained office documents but later he informed him that it contained weapons, etc. to take revenge against the loss of Muslims in Bombay riots. Later, he informed A-1 not to implicate him and not to create any problem for him. On this, A-1 told him to keep those two bags for few more days. After this, when Rafiq came to keep three bags with him, he asked him what was contained in these bags as they were very heavy, at that time, he told him that the bags contained bullets and grenades, etc. for some work in Bombay. He informed the officer that he had no other role except for keeping those bags in his office.

369. The next witness heavily relied upon by the prosecution is Mohd. Hanif Usman Shaikh (PW 282). According to him, he had been residing at Bombay for the last 30 years and had been plying a taxi for the last 10 years. He admitted in his evidence that he knows Altaf bhai (Altaf Passportwala) and he identified Altaf bhai in the court and also informed his full name as Altaf Ali Mustaq Ali Sayed. He further informed the court that Altaf bhai gave him 2 suitcases in his office when he had been to the said office at 9.00 p.m, on 22-3-1993. Both the said suitcases were given to him in a closed condition. Altaf bhai told him to keep the said suitcases and informed him that it contained fax machines. Both the said suitcases were of light brown colour. While describing further, it was stated that first suitcase was bigger in size while the other one was smaller in size. He further explained that since Altaf bhai was not having the place to keep the said suitcases, he had given the same to PW 282 for keeping the same for a few days. Accordingly, he brought the said suitcases to his house.

370. In continuation of his evidence, PW 282 stated that on 26-3-1993, at about 10.30 p.m, 4/5 policemen along with Altaf bhai came to his house. On seeing him, Altaf bhai told him to return the bags given by him. Though an objection was raised about the said question, the Designated Court has rightly clarified that the answer was allowed with the limited object to show only a fact that Altaf bhai had made a statement. Thereafter, PW 282 deposed that he took out the bags which were under the sofa and gave the same to the police persons who had accompanied Altaf bhai (A-67). Since he was not having the keys, he was unable to produce the same when he was asked by Police Officer Mahabale. Thereafter, the said officer called a mechanic and the mechanic opened both the bags by preparing the keys for the same. After opening the bags, the mechanic went away. Both the said bags were found to contain hand grenades. Both the bags also contained wire bundles. The bigger suitcase contained 65 hand grenades. The same also contained 10 bundles of wire. The smaller suitcase contained 40 hand grenades and 5 bundles of wire.

371. PW 282 further explained that the chits were affixed on each of the hand grenades in both the said bags. The bundles of wire from both the bags were kept together and wrapped in a paper. The said packet was tied by means of a string. A seal was also affixed upon the said packet. The hand grenades from both the bags were of similar size. The same were of green colour. Each bundle of wire contained wires of green, red and yellow colour. The witness deposed that he had seen the suitcases before this day. Accordingly, the suitcases were marked as Articles 42 and 43 after showing the same to him. He mentioned that he had seen both the said suitcases in the year 1993 and had seen both the said suitcases on 22-3-1993. He reiterated that he had seen the said suitcases on the said day in the office of Altaf bhai. Thereafter, the said suitcases were given to him by Altaf bhai. When a specific question was put, namely, whether Articles 42 and 43 shown to him had any connection with the suitcases given to him by Altaf bhai, he answered that the same were the suitcases like these suitcases. He again reiterated that suitcases, Articles 42 and 43 were the suitcases given to him by Altaf bhai.

372. In the cross-examination, PW 282 mentioned that the hand grenades from the bigger suitcase were counted in his presence and asserted that after counting the same they were found to be 65 in number. He also reiterated that thereafter 65 labels were prepared and signatures of panch witnesses were obtained upon each of the said labels. After affixing of the said 65 labels one by one on each of the said hand grenades, the labelled hand grenades were kept in a bigger suitcase. He also asserted that the said labelled hand grenades or any hand grenade out of them was not removed from the said bigger suitcase after the same were kept in the same up till the said bag was removed from his house by the police. Before removing the bigger suitcase from his house, he stated that the same was locked by means of a key which was prepared by the mechanic for opening the said suitcase. He also stated that the bigger suitcase was sealed in his presence in such a manner that contents thereof could not be removed by anybody without tampering or breaking the seal affixed on the said suitcase.

373. Regarding the smaller box, PW 282 stated that in the same manner 40 hand grenades were found from the smaller bag and after that the same were labelled. The said bag was also locked by means of a key prepared by the mechanic for opening the said bag. He also stated that the said bag was also sealed in such a manner that the contents thereof could not be taken out without damaging the intact seal affixed to the said bag or without breaking the said bag. He also stated that none of the labelled hand grenades kept in the said bag was removed after the same were kept in the said bag, after labelling and up till the said small bag (suitcase) was taken out of his house by the police.

374. PW 282 further stated that on the said night, he had seen only 105 hand grenades and out of them 65 hand grenades were kept in bigger suitcase and 40 hand grenades were kept in the smaller suitcase. Since he disputed the number of hand grenades, labelling and locking in cross-examination, with the permission of the court, the Special Public Prosecutor put questions regarding happenings at Mahim Police Station in the month of February/March 1993 and the circumstances in which the statement of the witness was recorded by the police and the reason for which he had deposed before the court. In respect of a suggestion that he had made such a wrong statement at the instance of accused Altaf bhai (A-67) and his agents, he denied the same. Regarding the acceptability or its evidentiary value regarding the number of hand grenades, is to be discussed in the coming paragraphs.

375. Regarding recoveries, the prosecution also relied on the evidence of Ramesh Manohar Parkunde (PW 541). According to him, in the month of March 1993, he was attached to DCB-CID, Unit VIII as PI. He deposed before the court that on 24-3-1993, Senior PI V.S Kumbhar of DCB-CID entrusted him with further investigation of CR No. 138 of 1993 registered with L.T Marg Police Station on 23-3-1993. After taking charge of the said investigation, he registered CR No. 77 of 1993 as a corresponding CR No. for the said crime. On going through the earlier papers of investigation, he noticed a panchnama dated 23-3-1993 affected at L.T Marg Police Station. He took charge of the articles recorded in the said panchnama and kept the same in the strongroom of DCB-CID. The said articles were suitcases, AK-56 rifles, ammunition and hand grenades, etc. He further informed that on 24-3-1993, he visited the place from where the said articles were seized and made a thorough inquiry regarding the manner in which the said articles came to the said spots. He further stated that on 27-3-1993, he handed over all live hand grenades seized under panchnama Ext. 728 to PI Chaugule of BDDS for defusing the same. On the same day, he had also given him all the detonators seized under the same panchnama for diffusing. He had requested the said squad for returning the said hand grenades and detonators after diffusing the same.

376. PW 541 forwarded the seized articles to FSL for examination by preparing necessary forwarding letter and described the articles sent therein. On going through the office copy of the said letter, he explained that on the said day, he had sent in all 11 sealed packets to FSL and out of them 4 articles were sealed gunny bag packets and the other 7 were sealed bags with each packet containing the articles as described in the said forwarding letter. The said articles were received on the same day by FSL and FSL has given the acknowledgement of receipt of the letter and articles. The letter shown to him containing the said acknowledgement of FSL is marked as Ext. 1846. According to him, since the said articles were in large quantity, he had personally taken those articles to FSL. On 2-4-1993, he had taken out the said articles from the strongroom. He asserted that the said articles were found in perfectly sealed, labelled and packed condition in which the same were deposited in the strongroom i.e they were in the same condition in which he had received them. He sent those articles in the same condition to FSL. On 27-4-1993, he received a report from the chemical analyser regarding the articles sent by him for examination. In the absence of any objection by the defence counsel, the chemical analyser report has been admitted in evidence and the same is marked as Ext. 1847.

377. Apart from the abovementioned evidence of PW 541, who is an officer in charge of the muddemal property, since 20 hand grenades were found less while recording his evidence, he filed an affidavit dated 11-10-1999 before the Designated Court which reads as under:

“In the Court of Designated TADA Act, BBC, Greater Mumbai

In

BBC No. 1 of 1993

State of Maharashtra/CBI, STF … Appellant

v.

Dawood Ibrahim Kaskar … Accused

AFFIDAVIT

I, Ramesh Manohar Pargunde, 52 years, Senior Inspector of Police, Kherwadi Police Station, Mumbai, do hereby solemnly affirm and say as under:

2. That I am filing this affidavit with a view to explaining the shortage of 20 hand grenades in muddemal property of this case.

3. I say that I was in charge of the store of muddemal property of Crime Branch, CID, Mumbai in the year 1993. On 22-5-1993, the Police Inspector of Worli Police Station had deposited 105 hand grenades and 150 detonators, which were seized in connection with LAC No. 389 of 1993 of Worli Police Station, Mumbai in DCB-CID CR No. 112 of 1993.

4. I say that I was informed that 20 hand grenades were found less in the muddemal property while recording the evidence of this case. I was, therefore, asked to check up the record of the above store of Crime Branch. I have personally checked and verified the said record. I say that 5 hand grenades were lying in the strongroom of Crime Branch, CID. I say that inadvertently the said 5 hand grenades were not deposited in the court when the said muddemal property was produced before the court. I say that the prosecution may be permitted to produce the said 5 hand grenades for which a separate application is being moved before this Hon'ble Court.

5. I say that I have verified the other record of the Crime Branch and found that the remaining hand grenades were given to the various authorities as per the orders of the superiors.

(a) Six hand grenades given to Intelligence Bureau by PI, BDDS on 10-6-1993.

(b) One hand grenade was given to DCP, CB, Hyderabad.

(c) Eight hand grenades have been given to the ballistic expert of Austria and Britain, as the said experts were called upon to opine on the origin of the said hand grenade.

I say that whatever stated in paras 3 and 4 is as per the record available in the office and whatever stated in paras 5 (a, b and c) is true as per my personal knowledge and as per the available records and I believe the same to be true.

Solemnly affirm.

This 11th day of October, 1999.

Deponent

(R.M Pargunde)

Identified by me

Special Public Prosecutor

CBI, STF, Mumbai”

378. The statements of various accused, particularly, A-10 and the evidence of PW 282 as well as PW 541 coupled with the affidavit sworn by PW 541 and in the light of the principles to be followed for a valid panchnama which we have discussed earlier, we are satisfied that though minor discrepancies are there, according to us, on this ground we cannot destroy the entire prosecution case. In view of the fact that the prosecution has led ample corroborative evidence, which we have discussed in the earlier paragraphs, we are of the view that the Designated Court was fully justified in relying on those recoveries while accepting the prosecution case.

Final analysis relating to A-1

379. From the total appreciation of the evidence as produced by the prosecution in support of the case against A-1, an offence of conspiracy is clearly made out. The evidence in respect of A-1 is in the nature of confessions made by the co-accused persons, the testimonies of the prosecution witnesses and documentary evidence on record and recoveries:

379.1 A-10 in his confessions has categorically stated that A-1 is the younger brother of Tiger Memon. It was A-1 who attended many telephone calls at Tiger's residence. On 10-2-1993/11-2-1993, A-1 handed over three tickets to Dubai and three passports to A-10 asking him to pick up A-100, A-16 and Salim from Midland Hotel and hand over the tickets and passports to them and also directed to drop them at the airport by taxi, all of which, was duly done by A-10. He further stated that at the airport, Tiger told them that he should keep in touch with A-1 and in case of any requirement of money he should get the money from Choksi (A-97). On 13th February, A-1 directed A-10 to collect Rs 1 crore from Choksi (A-97) for him. A-10 collected the said money along with co-accrued Abdul Gani (A-11), Parvez (A-12), Mohd. Hussain, Salim and Anwar Theba (AA). On 17th/18th February, A-1 directed A-10 to remain with Rafiq Madi (A-46). On the next day, A-10 and A-46 picked up Irfan Chougule (AA) from Mahim and Shahnawaz (A-29) and his companion from Bandra Reclamation and dropped them at the airport. It was A-1 who directed A-10 to transfer Rs 25 lakhs from Tiger's account to Irani's account and also to transfer Rs 10 lakhs to Ohalia's account which was duly done by A-10. The timing of these transfers if seen in the context of activities being carried out contemporaneously was for meeting the expenses for achieving the objects of conspiracy, to meet the expenses incurred for admitting of co-conspirators and also to meet the expenses to be incurred during the absconsion period.

379.2 In the same way, A-11, in his confession specifically stated that on 27th/28th January A-1 was present at Al-Hussaini Building with other co-accused i.e A-46, A-15, A-12 and A-52. On 7-3-1993, A-11 was present at Al-Hussaini Building along with Tiger, Shafi, Essa (A-3), A-7, A-5 and A-6.

379.3 A-46, in his confession referred to the role of A-1 apart from mentioning that he is the younger brother of Tiger Memon. He further confessed that he used to drive Tiger's blue Maruti 800 for attending to all business activities. On 8th or 9th February, he handed over Rs 50,000 to him which was in turn given to Altaf Passportwala. Between 14th/15th February, Anwar filled up brown-coloured substance in three VIP suitcases from the secret cavity of the jeep at the instructions of A-1 in his presence. The next day, A-1 gave Rs 62,000 to Rs 63,000 to him to be given to A-67. On 17th February, A-1 handed over five passports and tickets to Anwar for Yeda Yakub and others for their departure to Dubai. The next day, on the directions of A-1, A-46 dropped Irfan Chougule (AA), Asgar Yusuf Mukadam (A-10) and Shahnawaz at the airport for their departure to Dubai. On 14th, he was given Rs 4 lakhs by A-1 after collecting the said amount from Choksi (A-97).

379.4 A-67 in his confession referred to the role of A-1. A-1 asked A-67 about the bags that had been delivered to him by Ajmal. It was A-1 who arranged for tickets for some ten accused through him by sending money, etc. A-1 sent three bags through A-46 to accused A-67 for safe keeping of the same which contained arms and ammunition. A-1 instructed A-67 over phone for sending the bags to Al-Hussaini i.e residence of Memon's family. Earlier, A-1 had asked A-67 to keep the bags. When A-67 told A-1 that he may be implicated, A-1 replied that he need not worry.

379.5 The confessional statement of A-97 clearly establishes that Tiger had an account with him in which various amounts totalling about Rs 161.48 lakhs were deposited by A-26 at the behest of Tiger Memon (AA) which was also controlled by A-1. It is relevant to mention that on 12-2-1993, at the time of departure to Dubai, Tiger told A-10 that he should remain in contact with A-1 and should bring money for him from A-97 in case A-1 needed money. From the above, it could safely be inferred that the account maintained with A-97 by Tiger Memon was being used for meeting the expenses incurred for achieving the objects of criminal conspiracy and A-1 was handling it through the other co-conspirators.

380. The confessional statements of A-10, A-11 and A-46 clearly reveal that the relevant role of collecting money was played by A-10 at the behest of A-1. In the said context, the material contained in the confession of A-10 that while leaving for Dubai, Tiger Memon told him to remain in touch with A-1 and having further told him that in the event of A-1 requiring any money A-10 should collect the same from A-97 clearly reveals that A-1 himself having not collected the money from A-97 but he was using A-10 for the said purpose and was actively involved in day-to-day activities. The same is further clear in the confession of A-10 which reveals that after A-1 having told him to bring about an amount of Rs 1 lakh from A-97, the manner in which the said amount was brought by A-10 by going to the house of A-97 along with A-11, A-12 and two more persons.

381. Apart from the above evidence, Asif Sultan Devji (PW 341) and Massey Fernandes (PW 311) have deposed about booking of 12 tickets and 1 ticket respectively at the instance of A-67. It is relevant to note that A-67 in his statement under Section 313 of the Code has admitted having booked the tickets for Dubai through the said witnesses. PW 2, approver had categorically stated that A-1, at the instance of Tiger, gave air tickets to Javed which were of A-100, A-52, A-60, A-32 besides for himself.

382. It has also come in the evidence of S.P Udayavar (PW 441) that at the instance of A-1, in January and March 1993, he booked tickets for Dubai vide Ext. 1421. PW 441 had categorically stated that the tickets booked by him were collected by a person from Tejarath International sent by A-1. All the above details clearly show that the tickets booked by A-67 and others at the behest of A-1 were for the co-accused, who went to Dubai and, subsequently to Pakistan for weapons' training as revealed in their confessional statements and evidence of PW 2. All this information emanated not only from the accused in their confessional statements but also from the persons who were in charge of issuance of tickets at the travel agencies and airport. In the light of evidence of PW 441 about booking of tickets by A-1 in the account of Tejarath International coupled with the confession of co-accused A-14, A-94, A-49 and A-39 regarding their visits to Dubai during the relevant time, establish that A-1 had booked air tickets for the co-conspirators mentioned above.

383. The examination of Vijayanti B. Dembla (PW 313) and Nitin K. More (PW 310) establishes that it was A-1 who was booking tickets and used to send his employee to collect them from East West Travels. The examination further reveals that the office of his firm was burnt in the riots and he started working from his residence at Al-Hussaini Building.

384. It is also seen from the confession of A-67 that A-1 had given him four bags on the first occasion which were containing ammunition. On the second occasion, A-46 had delivered three more suitcases to A-67 and upon being asked by him, A-46 stated that the suitcases were containing round bombs, etc. Thus, A-67, in all had received 7 bags from A-1 through A-46 which were containing arms/ammunition, etc. A-67, thereafter, returned five bags to A-1 that included four bags which were received on the first occasion and one of the three received on the second occasion. The above confessional statement of A-67 corroborated the evidence of Akbar Khan Abusama Khan (A-37). A-46 in his confessional statement also stated about the delivery of three suitcases to A-67 by A-1. Though some discrepancies are there, in the light of the abundant materials, if we read the entire confessional statement of A-67, those were not of much importance.

385. It is further seen that in all important meetings with Tiger Memon, particularly, at the residence Al-Hussaini, A-1 used to interact with him. It is further clear that the confessional statement of A-67 corroborated the evidence of PW 37, PW 506 and PW 282. It has also come in evidence that A-1 was in possession of hand grenades and electronic detonators which were concealed in the jeep and which were delivered to A-67 in three suitcases by A-1 through A-46. It is also seen from the evidence of PW 87, driver working for A-5 and PW 630, Manager of Hind Automobile and Co. that the Maruti car bearing No. MP 09 H 0672 belonged to A-1 and the evidence also establishes that he is the owner of the said vehicle which was involved in the said bomb blast. It has been proved that the said Maruti car of blue colour was planted at Bombay Stock Exchange which exploded at 0330 hrs killing 84 persons, injuring 270 persons and causing loss of property worth Rs 5 crores. The number plate (Article 227) bearing No. MP 09 H 0672 was seized from the place of occurrence by Deputy Manager, Bombay Stock Exchange (PW 82). Engine No. and Chassis No. were seized by PW 86 and PW 370 respectively. The said Maruti car was purchased by Shafizarimal in the beginning of the year 1992 through Sulaiman Mohammed Lakdawala (PW 365) and thereafter, it was changed from hand to hand and this car was used to blast Bombay Stock Exchange Building. This car was used by Tiger Memon and A-1 for explosion. This is evident from the evidence of PWs 87 and 630.

386. We have already noted that the confessions of A-10, A-11, A-46 and A-97 are voluntary confessions and the same have been properly recorded by the recording officers and the same being not liable to be discarded. Merely because the confession of A-1 is not on record i.e the said accused having not made a confession, the same cannot be considered as a factor for terming other evidence led by the prosecution as a weak type of evidence.

387. The material portion in the confessions of A-10, A-11 and A-46 clearly reveal the relevant role of collecting money paid by the said accused at the behest of A-1. The oral and documentary evidence led in by the prosecution clearly prove that A-1 was not only associated with his brothers and other accused but had also participated in the conspiracy. Several co-accused, particularly A-10, A-11, A-46 and A-97 in their confessional statements unequivocally referred to the role of A-1 and his participation in all aspects. The prosecution has also proved recoveries of incriminating articles like hand grenades, etc., and also for the purchase of air tickets, getting passports and visas for the persons who went to Pakistan via Dubai for training in handling of arms and ammunition. Apart from the categorical statement of co-accused, the prosecution has also examined the independent witnesses from the travel agencies and other authorities. Apart from this, there is ample evidence to show that he was in charge of all money transactions and monitoring the activities of all the persons concerned in the movement. The prosecution has also established that A-1 owns a blue Maruti car which was used for carrying explosives and detonators one day before the blast took place on 12-3-1993. A-1 left for Dubai on 11-3-1993 on an Indian passport and thereafter he entered Pakistan on a Pakistani passport. Though he was not one among the persons who carried arms and ammunition used for the blast but it was he who stood behind them from starting till the end viz. conspiracy, planning and making all the arrangements for sending certain persons to Pakistan for training in handling of arms and ammunition.

388. We are satisfied that the prosecution has established all the charges levelled against A-1 and the Designated Court, after analysing all the materials including oral and documentary evidence and the independent witnesses, rightly convicted him.

389. A perusal of the above confessions by the co-conspirators would show that the appellant (A-1) was playing a key role in furtherance of the abovesaid conspiracy. The above evidence along with further material relied on by the prosecution show that A-1 also played an active role in generation and management of funds for achieving the object behind the conspiracy and in all subsequent events.

Criminal Appeals Nos. 609-10 of 2008

Zakir Hussain Noor Mohammed Shaikh (A-32), Abdul Khan alias Yakub Khan Akhtar Khan (A-36) & Firoz alias Akram Amani Malik (A-39) v. State of Maharashtra

390. Mr Priyadarshi Manish, learned counsel appeared for the appellants (A-32, A-36 and A-39) and Mr Gopal Subramanium, learned Senior Counsel, duly assisted by Mr Mukul Gupta, learned Senior Counsel and Mr Satyakam, learned counsel for the respondent.

391. The present appeals are directed against the final judgment and order of conviction and sentence dated 4-12-2006 and 24-7-2007 respectively whereby the appellants (A-32, A-36 and A-39) have been convicted and sentenced to death by the Designated Court under TADA for the Bombay Bomb Blast Cases, Greater Bombay in BBC No. 1 of 1993.

Charges

392. The following common charge of conspiracy was framed against all the co-conspirators including the appellants herein. The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit the following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India, to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay and thereby committed offences punishable under Section 3(3) of the TADA Act, 1987 and Section 120-B of the Penal Code read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), 4(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

393. In addition to the abovesaid principal charge of conspiracy, the appellants were also charged on the following counts:

At head secondly, each of the appellants (A-32, A-36 and A-39) committed an offence punishable under Section 3(3) TADA by doing the following acts:

(i) They received training in handling of arms, ammunition and explosives in Pakistan along with co-conspirators.

(ii) They attended meetings at the residences of Nazir Ahmed Shaikh alias Babloo (AA) and Mobina alias Baya Musa Bhiwandiwala (A-96) where plans for committing terrorist acts were discussed and chalked out.

(iii) They participated in preparation of vehicle bombs on the night of 11-3-1993 at Al-Hussaini Building.

At head thirdly, each of the appellants along with the other co-accused went to Mahim Slope on 12-3-1993 in a Maruti van bearing Registration No. MP 13 D 0385, and threw hand grenades on the hutments, which exploded causing death of three persons and injuries to six persons and damage to property worth Rs 50,000 and thereby committed an offence punishable under Sections 3(2)(i), 3(2)(ii) TADA read with Section 149 IPC.

At head fourthly, each of the appellants along with the other co-accused persons formed unlawful assembly as mentioned above, while throwing the hand grenades at the said hutments at Mahim Causeway, which resulted into death, injuries and damage to properties and thereby committed an offence punishable under Section 148 IPC.

At head fifthly, each of the appellants, by causing the death of three persons as mentioned above by throwing hand grenades, committed an offence punishable under Section 302 read with Section 149 IPC.

At head sixthly, each of the appellants, by causing the aforesaid explosion by throwing hand grenades which resulted into injuries to various persons, committed an offence punishable under Section 307 read with Section 149 IPC.

At head seventhly, each of the appellants, by causing the aforesaid explosion by throwing hand grenades, which resulted into injuries, committed an offence punishable under Section 324 read with Section 149 IPC.

At head eighthly, each of the appellants, by causing the aforesaid explosion by throwing hand grenades, which resulted into damage to the properties worth Rs 50,000 committed an offence punishable under Section 436 read with Section 149 IPC.

At head ninthly, A-39, by causing the aforesaid explosion by throwing hand grenades, along with the other co-accused persons at Mahim Causeway, which resulted into death, injuries and destruction of properties, also committed an offence punishable under Sections 3, 4 read with Section 6 of the Explosive Substances Act, 1908 read with Section 149 IPC.

Conviction and Sentence

394. The charges mentioned above were proved against all the appellants (A-32, A-36 and A-39). The appellants have been convicted and sentenced for the abovesaid charges as under:

394.1 The appellants have been sentenced to death under Section 3(3) TADA and Section 120-B IPC read with the offences mentioned in the said charge. In addition, the appellants were also ordered to pay a fine of Rs 25,000 each. (charge firstly)

394.2 A-36 and A-39 have also been sentenced to suffer RI for 10 years while A-32 has been sentenced to RI for 14 years for the offence punishable under Section 3(3) TADA. The appellants were also ordered to pay a fine of Rs 25,000 each. (charge secondly)

394.3 The appellants have been sentenced to death for the offence punishable under Sections 3(2)(i) and 3(2)(ii) TADA read with Section 149 IPC and were also ordered to pay a fine of Rs 25,000 each. (charge thirdly)

394.4 The appellants were also sentenced to RI for three years under Section 148 IPC. (charge fourthly)

394.5 The appellants have been further sentenced to RI for life under Section 302 read with Section 149 IPC accompanied with a fine of Rs 25,000 each, in default, to further undergo RI for 6 months. (charge fifthly)

394.6 The appellants were sentenced to RI for 14 years under Section 307 read with Section 149 IPC accompanied with a fine of Rs 10,000 each, in default, to further undergo RI for 3 months. (charge sixthly)

394.7 The appellants were sentenced to RI for 2 years under Section 324 read with Section 149 IPC. (charge seventhly)

394.8 The appellants were sentenced to RI for 10 years accompanied with a fine of Rs 5000 each, in default, to further undergo RI for 1 month under Section 436 read with Section 149 IPC. (charge eighthly)

394.9 A-39 has been sentenced to RI for 10 years accompanied with a fine of Rs 5000 each, in default, to further undergo RI for 1 month, under Sections 3, 4 read with Section 6 of the Explosive Substances Act, 1908 read with Section 149 IPC. (charge ninthly)

Evidence

395. The evidence against the appellants is in the nature of their own confessions, confessions made by other co-accused, the testimonies of prosecution witnesses, including eyewitnesses and documentary evidence on record. A brief account of the evidence brought on record in respect of each of the appellant is as under.

396. Mr Manish, learned counsel for the appellants, after taking us through the relevant materials submitted that the appellants joined the company of Tiger Memon and had gone to Dubai and Pakistan due to circumstance and by force. He also submitted that they had no intention to go to Dubai and to attend weapons' training at Islamabad. Their main aim was to secure some job at Dubai. He also pointed out that though they participated in the smuggling activities of Tiger Memon group, they had no intention to involve in the terrorist act as claimed by the prosecution.

397. According to the appellants' counsel, though the prosecution has relied on their own confessional statements inasmuch as all of them have retracted from their statements, there is no need to give importance to those confessions. He also prayed that considering their poverty and also that at the relevant time they were in search of some job for their livelihood, the death sentence imposed by the Special Court is not warranted.

398. On the other hand, the learned Senior Counsel for CBI, after taking us through their confessional statements, confessional statements of other co-accused, the evidence of PW 2 (approver), eyewitnesses and recoveries as well as the loss of lives and damage to properties submitted that the Special Court was justified in awarding capital punishment.

Conspiracy

399. The appellants have attended several conspiratorial meetings including the meeting at the residence of Babloo (AA) where targets were selected and at Al-Hussaini Building where RDX and other explosive materials were filled up in vehicles and suitcases in pursuance of the said terrorist act. The participation of the appellants (A-32, A-36 and A-39) in these meetings is a physical manifestation of the agreement. The agreement to commit an illegal act can also be inferred from the acts committed by the appellants viz. receiving training in Pakistan, participating in filling RDX in vehicles in the intervening night between 11-3-1993/12-3-1993 and throwing of hand grenades at Fisherman Colony, Mahim on 12-3-1993 causing death of 3 persons and injuring 6 others.

400. The object behind the conspiracy is the ultimate aim of the conspiracy and many means may be adopted to achieve this ultimate object. The means may even constitute different offences by themselves, but as long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer to the same once again.

Confessional statements

Confessional statement of Zakir Hussain Noor Mohammed Shaikh (A-32)

401. The confessional statement of A-32 under Section 15 TADA has been recorded on 16-5-1993 (1125 hrs) and 19-5-1993 (1730 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confession, he made the following assertions:

(i) He knew Javed Chikna (AA) “very well”.

(ii) He travelled to Dubai on 11-2-1993 along with the other co-accused and they were received by Ayub Memon (AA), brother of Tiger Memon, at Dubai Airport.

(iii) He met Tiger Memon at a flat in Dubai and did not protest when he was told by Javed Chikna that he had come for training in handling arms and making bombs.

(iv) He left for Islamabad from Dubai by a Pakistan International Airlines flight.

(v) They were taken out of Islamabad Airport without any checking.

(vi) He was renamed as “Shakir” and other co-accused were also given fake names when they were in Pakistan.

(vii) Tiger Memon also joined them in training at Pakistan and stayed with them for two days.

(viii) He was trained in firing AK-56 rifle, preparation of bombs using RDX (black soap), using detonator and to throw hand grenades.

(ix) After returning from Pakistan, he along with A-36, A-39 and other conspirators met in a flat where Tiger Memon brought a copy of holy Quran and everyone including him, took an oath to keep the training in Pakistan a secret and that after reaching Bombay they would take revenge. Tiger Memon also delivered a lecture on communal riots in Bombay.

(x) On 7-3-1993, he attended the meeting in the house of Babloo (AA) in Bombay where Tiger Memon ordered them to cause riots.

(xi) On 10-3-1993, after the meeting in the house of Mobina alias Baya Moosa Bhiwandiwala (A-96), he along with A-39 and other co-accused went to survey Bharat Petroleum Refinery as a prospective target for blasts.

(xii) On the same day, Tiger Memon told them to throw hand grenades at Fisherman Colony, Mahim.

(xiii) Each of the appellants (A-32, A-36 and A-39) filled RDX in vehicles at Al-Hussaini Building on the night of 11-3-1993.

(xiv) On 12-3-1993, at 2.30 p.m, A-32, A-36 and A-39 along with Bashir (A-13), Mahmood, Salim Dandekar and Moin (A-43) left Al-Hussaini Building; thereafter, they all threw hand grenades at Fisherman Colony, Mahim. He threw two hand grenades and saw many people getting injured.

Reference to A-36 and A-39

(i) A-36 and A-39 joined the training camp in Pakistan.

(ii) A-36 and A-39 also took oath on holy Quran to keep the fact about receiving training in Pakistan a secret and to take revenge after their return to Bombay.

(iii) A-36 and A-39 participated in filling RDX at Al-Hussaini Building and in throwing hand grenades at Fisherman Colony, Mahim.

Confessional statement of Abdul Khan Akhtar alias Yakub Khan Akhtar Khan (A-36)

402. The confessional statement of A-36 under Section 15 TADA has been recorded on 19-5-1993 (1740 hrs) and 21-5-1993 (1820 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confession, he made the following assertions:

(i) He knew Shahnawaz Qureshi (A-29) very well and also knew that he was a well-known criminal.

(ii) He went to Dubai in February 1993 along with Shehnawaz and Irfan Chougule (AA) and met Gullu alias Gul Mohammed (A-77) at Dubai Airport. They were received by Ayub Memon (AA), brother of Tiger Memon at the airport.

(iii) He met Tiger Memon at Dubai, and thereafter, left for Pakistan to receive training in use of arms and explosives.

(iv) He along with A-32 were given training in handling AK-56 rifles, pistols, detonators, safety fuse, hand grenades, rocket launchers, use of RDX in making bombs and petrol bombs.

(v) After return from Pakistan, he along with other co-accused took an oath on holy Quran to keep the training in Pakistan a secret and to wage “Jehad”.

(vi) In the intervening night between 11-3-1993/12-3-1993, he and other co-accused, filled RDX in vehicles at Al-Hussaini Building.

(vii) On 12-3-1993, he along with A-32, A-39, Bashir (A-13), Moin (A-43), Mehmud and Salim drove to Fisherman Colony, Mahim and threw hand grenades.

Reference to A-32 and A-39

(i) A-32 and A-39 took training in Pakistan

(ii) A-32 and A-39 took oath on holy Quran to wage “Jehad” in Bombay.

(iii) A-32 and A-39 threw hand grenades at Fisherman Colony, Mahim.

Confessional statement of Feroz alias Akram Amani Malik (A-39)

403. The confessional statement of A-39 under Section 15 TADA has been recorded on 19-4-1993 (2230 hrs) and 23-4-1993 (2050 hrs) by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. In his confessional statement, he made the following assertions:

(i) He deposed that he was the brother-in-law of co-accused Fazal Abdul Rehman (A-76). He left for Dubai on 8-2-1993 along with Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98).

(ii) He and other co-accused were received by Ayub Memon (AA), brother of Tiger Memon, at Dubai Airport. He also met Nasim Ashraf Shaikh Ali Barmare (A-49) at Dubai.

(iii) He left for Pakistan from Dubai in a PIA flight along with other co-accused where a person took them out of Islamabad Airport without any immigration check.

(iv) He was renamed as “Akram” in Pakistan and he received weapons' training along with others where they were trained to assemble guns and throw bombs.

(v) Tiger Memon attended training in Pakistan and told the co-accused that they have to blast bombs at Bombay.

(vi) When they returned to Dubai, he and other co-accused took oath on holy Quran to keep the training in Pakistan a secret.

(vii) On 10-3-1993, he along with PW 2 went in a car to Shiv Sena Bhawan and a petrol pump nearby to survey the prospective targets. He also went to Chembur Refinery along with PW 2 to survey the target.

(viii) On 12-3-1993, he along with A-32, A-36, Bashir (A-13) Moin, (A-43), Salim and Mahmud threw hand grenades at Fisherman Colony, Mahim.

Reference to A-32 and A-36

(i) A-32 and A-36 joined A-39 for training in Pakistan.

(ii) A-39 went along with A-32 to survey Chembur Refinery.

(iii) A-32 and A-36 also threw hand grenades at Fisherman Colony, Mahim.

404. On perusal of the confessional statements made by the appellants, it is established that the appellants:

(a) attended training camp in Pakistan;

(b) took oath on holy Quran to do Jehad;

(c) attended meetings at the residence of Babloo (AA) and Mobina; and

(d) threw hand grenades at Fisherman Colony, Mahim.

405. It is also clear that the confessions made by the appellants are truthful and voluntary and were made without any coercion. All safeguards enumerated under Section 15 TADA and the Rules framed thereunder have been duly complied with while recording the confessions of the appellants.

Retraction statements

406. It is contended by the learned counsel for the appellants that the abovementioned confessions should not be relied upon since they were subsequently retracted by A-32 and A-39 and the denial of the voluntariness of the confessional statement made by A-36 has been recorded by the Designated Court in the statement under Section 313 of the Code. In the instant case, it was brought to our notice that retractions were not made at the first available opportunity by the accused persons. After arrest, the accused persons were produced before the court a number of times in 1993 and 1994. While the confessions were recorded in April and May 1993, retractions have been made only in May 1994 i.e after a gap of one year. Since we have elaborately discussed the contention raised by the learned counsel with regard to the same in the main appeal, there is no need to refer the same once again.

Confessional statements of co-accused

Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)

407. The confessional statement of A-13 under Section 15 TADA has been recorded on 16-5-1993 (1030 hrs) and 18-5-1993 (1715 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The prosecution submits that the confession of A-13 is pertinent since he was one of the co-accused who accompanied the appellants to Fisherman Colony, Mahim on 12-3-1993. His confession corroborates the confessions of the appellants in material aspects.

407.1 Reference to A-32

(i) A-32 attended a conspiratorial meeting on 10-3-1993 at the residence of Mobina.

(ii) On 11-3-1993, at 11.00 p.m, A-32 took him to the house of Tiger Memon at Al-Hussaini Building.

(iii) He along with A-32, A-39, A-36, Saleem, Mehmood and Moin went to throw hand grenades at Mahim Slope Causeway on 12-3-1993.

407.2 Reference to A-36

(i) A-36 actively participated in preparation of vehicle bombs by using RDX at Al-Hussaini Building compound in the intervening night between 11-3-1993/12-3-1993.

(ii) In the morning of 12-3-1993, A-36 was present at Al-Hussaini Building to execute his job of throwing hand grenades as assigned by Tiger Memon.

(iii) He along with A-36, A-32, A-39, Saleem Dandekar and Mehmood went to Mahim Slope Causeway and threw hand grenades at hutments.

407.3 Reference to A-39

He along with A-39, A-32, A-36, Saleem, Mehmood and Moin threw hand grenades at Mahim Slopeway.

Confessional statement of Mohd. Farooq Mohammed Yusuf Pawale (A-16)

408. The confessional statement of A-16 under Section 15 TADA has been recorded on 20-5-1993 (1630 hrs) and 22-5-1993 (1645 hrs) by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. In his confessional statement, he made the following assertions with regard to the appellants:

408.1 Reference to A-32

A-32 attended training in handling arms and explosives in Pakistan.

408.2 Reference to A-39

He attended the meeting held by Tiger Memon on 7-3-1993 in which Tiger informed that he was going to cause riots in Bombay.

Confessional statement of Mohd. Iqbal Mohammed Yusuf Shaikh (A-23)

409. The confessional statement of A-23 under Section 15 TADA has been recorded on 20-5-1993 (1000 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. He made the following assertions:

(i) In the intervening night between 11-3-1993/12-3-1993, A-32 filled the vehicles with RDX along with other co-accused at Al-Hussaini Building.

(ii) On 12-3-1993, A-36 filled the vehicles with RDX along with other co-accused at Al-Hussaini Building.

Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)

410. The confessional statement of A-29 under Section 15 TADA has been recorded on 18-5-1993 (1830 hrs) and 21-5-1993 (1445 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confessional statement, he made the following assertions with regard to the appellants:

410.1 Reference to A-32

(i) A-32 was present in the training camp in Pakistan when he and others reached there.

(ii) A-32 was present at Al-Hussaini Building in the flat of Tiger Memon along with Tiger, Shafi, Anwar, Bashir Muchhad, Nasim, Parvez and Sardar Khan.

(iii) A-32 received Rs 5000 from Tiger Memon.

410.2 Reference to A-36

(i) A-36 was present in the training camp in Pakistan when he and the others reached there.

(ii) A-36 received training in handling of arms and explosives in Pakistan.

(iii) A-36 returned from Dubai along with him, Feroz, Zakir and Mohd. Rafiq.

(iv) A-36 was present at Al-Hussaini Building compound on the night of 11-3-1993 along with Tiger, Shafi, Anwar, Bashir Muchhad, Nasim, Parvez, Zakir and Sardar Khan where vehicle bombs were prepared.

(v) On 12-3-1993, at about 12.30 noon, A-36 was present in the flat of Tiger Memon at Al-Hussaini Building along with Javed Chikna, Bashir Muchhad, Bashir Mahimwala, Shafi, Usman, Salim Dandekar, Anwar and Zakir.

(vi) A-36 received Rs 5000 from Tiger Memon.

410.3 Reference to A-39

(i) A-39 was present in the training camp in Pakistan when he and others reached there.

(ii) A-39 returned from Dubai along with him and A-29, Zakir, Abdul, Akhtar and Mohd. Rafiq.

Confessional statement of Nasim Ashraf Sherali Barmare (A-49)

411. The confessional statement of A-49 under Section 15 TADA has been recorded on 16-5-1993 (0930 hrs) and 18-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. He made the following assertions:

411.1 Reference to A-32

(i) A-32 participated in the weapons' training in Pakistan.

(ii) A-32 was present at Al-Hussaini Building in the morning of 12-3-1993.

411.2 Reference to A-36

(i) A-36 participated in the training in Pakistan and after training returned to India via Dubai.

(ii) A-36 was involved in filling of RDX in the vehicles on the night of 11-3-1993.

411.3 Reference to A-39

A-39 also received weapons' training in Pakistan.

Confessional statement of Salim Rahim Shaikh (A-52)

412. The confessional statement of A-52 under Section 15 TADA has been recorded on 15-4-1993 and 18-4-1993 by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. He made the following assertions:

412.1 Reference to A-32

(i) On 11-2-1993, A-32 along with the other co-accused persons left Bombay and reached Dubai.

(ii) On 12-2-1993, A-32 along with the others stayed in a building opposite to Hotel Al-Khaleez in Dubai where Tiger Memon met them.

(iii) On 13-2-1993, A-32 along with the other co-accused attended the meeting in the same building in which Javed Chikna and Tiger Memon talked about the communal riots in Bombay and Gujarat.

(iv) On 14-2-1993, A-32 along with the other co-accused left Dubai and reached Islamabad where they were taken to the training camp for training in firing arms, handling LMG rifles, throwing of hand grenades, use of RDX, detonators and timer pencils.

(v) On 11-3-1993, A-32 was seen at the residence of Tiger Memon assisting in loading of vehicles with RDX for causing bomb blasts.

(vi) On 12-3-1993, he along with the other persons boarded the Maruti car driven by him (A-32) in which 30 hand grenades were kept and they took it to Mahim Slopeway, Koliwada where he along with others threw hand grenades at Fisherman Colony causing blasts.

412.2 Reference to A-39

(i) A-39 was present in the training camp in Pakistan where they were imparted training in use of arms and explosives.

(ii) On 11-3-1993, A-39 (referred to as “Akram”) was seen at the residence of Tiger Memon at Al-Hussaini Building along with other accused persons where vehicles were being loaded with RDX.

(iii) A-39 along with other conspirators boarded the Maruti car to Mahim Slopeway, Koliwada and threw hand grenades. After that, he took over the bag of remaining hand grenades and the pistol given to him earlier and left the vehicle near Bandra Reclamation.

Confessional statement of Shaikh Ali Shaikh Umar (A-57)

413. The confessional statement of A-57 under Section 15 TADA has been recorded on 19-4-1993 (1200 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. He made the following assertions:

413.1 Reference to A-32

(i) A-32 took out rifles from the sack and cleaned them.

(ii) A-32 carried food for other co-conspirators at Al-Hussaini Building.

413.2 Reference to A-39

(i) A-39 was a member of the meeting addressed by Tiger Memon, where he was asked to take revenge against the killings of Muslims in Bombay and Surat.

(ii) He along with others were paid Rs 5000 by Tiger Memon in the said meeting.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

414. The confessional statement of A-64 under Section 15 TADA has been recorded on 22-1-1995 and 24-1-1995 by H.C Singh (PW 474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. A-64 made the following assertions:

414.1 Reference to A-32

(i) A-32 was present at Dubai when A-64 and others reached there.

(ii) A-32 attended conspiratorial meetings at Dubai.

(iii) A-32 received training in use of arms and explosives in Pakistan.

414.2 Reference to A-39

(i) A-39 went to Pakistan by a PIA flight and received training.

(ii) A-39 attended a conspiratorial meeting on 10-3-1993 at the residence of Mobina.

(iii) A-39, along with other co-accused, on being asked by Tiger Memon whether they were prepared, replied in the affirmative.

(iv) A-39 actively participated in preparation of vehicle bombs at Al-Hussaini Building on the night of 11-3-1993 by using RDX which had landed at Shekhadi.

Confessional statement of Mohd. Rafiq Usman Shaikh (A-94)

415. The confessional statement of A-94 under Section 15 TADA has been recorded on 14-5-1993 (1830 hrs) and 16-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. He made the following assertions:

415.1 Reference to A-32

On 10-3-1993, A-32 accompanied with Niaz alias Aslam, Usman (PW 2) and Feroz (A-39) went to meet Tiger Memon in a white Maruti car to a building behind Bhabha Hospital. In the said meeting, Tiger enquired as to who knows driving, etc. In the said meeting, he also distributed Rs 5000 to each one of them.

415.2 Reference to A-36

A-36 received training in arms in Pakistan. Training was also given in handling of pistols, rifles, hand grenades, rocket launchers and preparation of RDX bombs.

415.3 Reference to A-39

(i) A-39 received training in arms in Pakistan. Training was also given in handling of pistols, rifles, hand grenades, rocket launchers and making of RDX bombs.

(ii) On 10-3-1993, A-39 along with Nasim alias Aslam, Usman, Rafiq and Zakir went to meet Tiger Memon in a white Maruti car to a building behind Bhabha Hospital where Tiger enquired as to who knows driving, etc. In the said meeting, Tiger also distributed Rs 5000 to each one of them.

Confessional statement of Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98)

416. The confessional statement of A-98 under Section 15 TADA has been recorded on 17-5-1993 (1430 hrs) and 20-5-1993 (1130 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. He made the following assertions:

416.1 Reference to A-32

(i) A-32 received training in handling of different types of arms and ammunition, hand grenades and making of bombs by using RDX.

(ii) On 1-3-1993, after all the others also reached Dubai, A-32, at the instance of Tiger Memon, took oath after placing his hands on holy Quran. He also heard about the speech given by Tiger regarding the riots in Bombay.

416.2 Reference to A-36

(i) A-36 received training in handling of different types of arms and ammunition, hand grenades and making of bombs by using RDX.

(ii) On 1-3-1993, A-36 along with other conspirators, at the instance of Tiger Memon, took oath in Dubai after placing his hands on holy Quran. A-36 also heard about the speech given by Tiger regarding the riots in Bombay.

416.3 Reference to A-39

(i) On 8-2-1993, A-39 along with Niyaz proceeded to Dubai. At the airport, he was received by Ayub Memon and stayed with Tahir.

(ii) A-39 received training in handling of different types of arms and ammunition, hand grenades and making of bombs by using RDX. During training, his assumed name was “Akram”.

(iii) On 1-3-1993, after all the others also reached Dubai, A-39, at the instance of Tiger, took oath after placing his hands on Quran. He also heard about the speech given by Tiger regarding the riots in Bombay.

Confessional statement of Mohd. Parvez Zulfikar Qureshi (A-100)

417. The confessional statement of A-100 under Section 15 TADA has been recorded on 15-4-1993 (2330 hrs) and 17-4-1993 (1700 hrs) by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. He made the following assertions:

417.1 Reference to A-32

(i) A-32 participated in the training of firearms and ammunition in Pakistan along with his associates during February 1993.

(ii) On 2-3-1993, A-32 came back to Dubai, where Tiger Memon gave 200 Dirhams to each one of them and administered oath on Quran to take revenge against Hindus for demolition of Babri Masjid and the tyranny perpetrated on them.

(iii) A-32 was present at the residence of Tiger Memon at Al-Hussaini Building on the night of 11-3-1993 along with other co-accused.

417.2 Reference to A-39

A-39 participated in the training of firearms and ammunition at Islamabad, Pakistan along with his associates during February 1993.

418. A perusal of the confessional statements of all the above accused viz. A-13, A-16, A-23, A-29, A-49, A-52, A-57, A-64, A-94, A-98 and A-100 clearly establish the fact that the appellants i.e A-32, A-36 and A-39 were present at Al-Hussaini Building in the night intervening 11-3-1993/12-3-1993 and actively participated in filling of RDX in the cavities of vehicles which were later planted at various targets in Bombay causing irreparable damage to life and property. It is also sufficiently established that they went to Pakistan via Dubai and received training in handling of arms and ammunition at the hands of Tiger Memon and all of them also took oath on holy Quran to take revenge for the riots in Bombay and to keep the training in Pakistan a secret. It is also sufficiently proved that in pursuance of the said conspiracy, all the appellants herein threw hand grenades in Fisherman Colony, Mahim on 12-3-1993 causing death of 3 persons and injuring 6 others.

Deposition of prosecution witnesses

Deposition of Mohd. Usman Ahmed Zan Khan (PW 2) (approver)

419. PW 2 deposed as under:

419.1 Reference to A-32

(i) He knew A-32 as “Zakir” and identified him in the court.

(ii) He accompanied A-32 and other co-accused persons to Dubai in February 1993.

(iii) Ayub Memon (AA), brother of Tiger Memon, received them at Dubai Airport and Tiger Memon also visited them in Dubai.

(iv) In Dubai, A-32 informed PW 2 and other co-accused persons that Tiger Memon had asked them to come to Dubai Airport. All the accused persons, including A-32, then boarded a flight to Islamabad, Pakistan.

(v) On reaching Islamabad, all the accused persons including A-32, were taken out of the airport without any immigration check.

(vi) In Pakistan, all of them received training in use of RDX, pencil detonators, guns and hand grenades.

(vii) On return to Dubai, all the accused persons met at a flat where Tiger Memon was also present. In this conspiratorial meeting, they discussed about the riots in Bombay and took oath on holy Quran to take revenge and not to disclose the secret of the training in Pakistan to anyone.

(viii) On 8-3-1993, several accused persons including A-32 met at the residence of Babloo (AA) where targets were selected by Tiger Memon.

(ix) A-32 attended another meeting on 10-3-1993 at Bandra where he met Tiger Memon and other co-accused and they discussed about the targets and A-32 gave his report on Chembur Refinery.

(x) PW 2 along with A-32 conducted the survey of Bharat Petroleum Refinery as a possible target of blasts.

419.2 Reference to A-36

(i) A-36 also joined training in Pakistan.

(ii) A-36 attended the meeting at Al-Hussaini Building on 11-3-1993 where targets were discussed.

(iii) A-36 received four hand grenades from Javed Chikna (AA) on 12-3-1993 and was instructed to throw the same at Fisherman Colony, Mahim.

419.3 Reference to A-39

(i) A-39 joined training in Pakistan.

(ii) In Dubai, A-39 also took oath on holy Quran along with other co-accused at the instance of Tiger Memon to keep the training in Pakistan a secret.

(iii) A-39 was present in the meeting at Shakeel's place on 7-3-1993 where Tiger Memon discussed about targets.

(iv) On 11-3-1993, A-39 along with the other co-accused persons went to survey Bharat Refinery as a prospective target.

420. A perusal of the deposition of PW 2 clearly establishes and fully corroborates the confessions of the appellants in all material particulars that the appellants played an active and crucial role in achieving the object of the conspiracy. It further corroborates the fact that they travelled to Pakistan and received training in handling of arms and ammunition, explosive substances and throwing of hand grenades. They attended meetings in Dubai and in India and also took oath on holy Quran to take revenge. They participated in filling RDX in vehicles which were used to cause explosions at targets and hurled hand grenades at innocent people in Fisherman Colony, Mahim, on 12-3-1993.

Deposition of Laxman Patil (PW 5)

421. PW 5 is a resident of Fisherman Colony and is an eyewitness to the incident. He witnessed the incident while he was waiting on the road.

(i) He identified A-52, A-32, A-36, A-13 and A-43 in court.

(ii) He participated in the identification parade dated 15-5-1993 conducted at Mahim Police Station by the Special Executive Magistrate (PW 469).

(iii) He also identified the car bearing No. MP 13 D 0385 in which the appellants came to Mahim Slopeway in order to throw hand grenades.

Deposition of Santosh Patil (PW 6)

422. PW 6 deposed as follows:

(i) He is a resident of Fisherman Colony, Mahim. He witnessed the said incident while he was waiting near Municipal School at Mahim Slope.

(ii) He deposed that the appellants came in a Maruti van to the said colony and the number of the said vehicle was MP 13 D 0385.

(iii) He identified A-52, A-32, A-36, A-13, A-43 and A-39 in the identification parade conducted in the court on 20-9-1995.

(iv) He also identified A-32, A-36 and A-39 in the identification parade dated 15-5-1993 conducted at Mahim Police Station by the Special Executive Magistrate, PW 469.

Deposition of Shashikant Shetty (PW 13)

423. PW 13 is an eyewitness and a resident of Fisherman Colony, Mahim. He deposed as under:

(i) He came out of his house after hearing the sound of explosion.

(ii) He identified A-52, A-32, A-36, A-39, A-13 and A-43 in court.

(iii) He participated in the identification parade dated 15-5-1993, conducted at Mahim Police Station by the Special Executive Magistrate (PW 469).

(iv) He identified the Maruti van in which the accused persons came to Fisherman Colony as MP 13 D 0385.

(v) PW 13 lodged the first information report in respect of the explosions at Fisherman Colony.

424. From the depositions of PWs 5, 6 and 13, the eyewitnesses, the identification of the appellants as those persons who threw hand grenades towards Fisherman Colony, Mahim on 12-3-1993 has been established. They also identified the Maruti van bearing No. MP 13 D 0385 as the vehicle in which the appellants came to the place of incident and fled away. Depositions of the said witnesses fully establish the charge in respect of the incident at Fisherman Colony against the appellants.

Investigation, Recoveries and FSL Report

425. On 12-3-1993, Shantaram Gangaram Hire (PW 562), Police Officer, visited the blast site i.e Fisherman Colony, Mahim and prepared spot panchnama (Ext. 1942) in the presence of panch witnesses, Dayaram Timbak Akare and Mahendra Sadanand Mehre. PW 562, in the presence of Tamore (PW 330) and experts collected the articles from the blast site vide panchnama, Ext. 1221 which were sent to the Forensic Science Laboratory (“FSL”) for opinion. FSL Report, Ext. 1943 proved remnants to be explosives and part of hand grenades.

Evidence with regard to injured victims and deceased

426. It is seen from the records that in July 1993, Achyut Shamrao Pawal (PW 542), Police Inspector, collected the injury certificates of the following injured persons, namely, Mr Gurudutt Agaskar, Ms Rajashri Agaskar and Ms Sheetal Kenihas from Bhaba Hospital which amply prove that they sustained injuries during the blast. Injured Shashikant Shetty (PW 13) and Sheetal Keni (PW 412) also proved to have sustained injuries during the blast. Dr Wadekar (PW 641) and Dr Krishna Kumar (PW 640) were the doctors who have proved the injury certificates issued to PW 13 and Sheetal Keni (PW 412) which are Exts. 2374 and 2372 respectively.

427. Gajanan Tare (PW 413) (husband of the deceased Gulab Tare) and Karande (PW 414) (nephew of the deceased Hira Dhondu Sawant) claimants of two bodies, have proved the death of Mrs Gulab Tare (wife of PW 413) and Smt Hira Dhondu Sawant (PW 414's aunt) in the said incident. Dr Pujari (PW 482) and Gangadhar Uppe (PW 480) have established the cause of death to be the injuries received on 12-3-1993. Achyut Shamrao Pawal (PW 542) also proved the death of three persons at Fisherman Colony in the said incident.

Vehicle used for committing the act

428. The prosecution has brought to our notice that the vehicle used by the appellants for travelling to Fisherman Colony was purchased by Shafi (AA) which has been proved through the following witnesses:

Deposition of Kailash Govind Rao Baheti (PW 342)

429. PW 342 deposed as follows:

“On 18-1-1993 I had received a telephone call given by Shakil Hasham from Bombay. Shakil requested me to book one red-coloured Maruti van in the name of Asif Darvesh resident of M.G Road, Indore and another new Maruti van of blue colour in the name of Shri Kasam Ahmed residing at Indira Nagar, Ujjain. He also requested me to register both the Maruti vans at Indore and send the same to Bombay. He also told me that the payments of the same would be made at Bombay to the driver. I quoted a price of Rs 1,69,000 per vehicle inclusive of registration and transport charges. I was having red-coloured Maruti van bought by me from M/s Bhatia & Company, Gurgaon, Haryana and blue-coloured Maruti van bought from Vipul Motors, Faridabad, Haryana, in my stock. I had bought both the said vehicles by making advance payment. After receipt of booking from Shakil Hasham for red and blue-coloured brand new Maruti vans, I informed the details of the purchasers to M/s Bhatia & Company and M/s Vipul Motors. After receipt of the said letters and bills from both the said companies in the name of the purchasers who wanted red and blue Maruti vans I sent papers of both the vans for registration to RTO. The blue-coloured Maruti van was registered in the name of Kasam Ahmed at Ujjain RTO. The blue-coloured Maruti van could not be registered at Indore due to lack of E-Form necessary for registration. Thereafter, I sent both the said vans to Bombay to Shakil Hasham. Shakil Hasham received the delivery and paid Rs 3,38,000 to my drivers. My drivers gave the said amount to me. I made the necessary entries in my office record for sending the said vans to Bombay to Shakil Hasham after purchasing the same for the parties told by him. The RTO Authority at Ujjain had given Registration Number MP 13 D 0385 to ‘blue-coloured Maruti van. Today I am not remembering the engine number and chassis number of the said Maruti van’.”

(emphasis supplied)

Deposition of Shakeel Suleman Hasham (PW 366)

430. PW 366 deposed that he had asked PW 342 to arrange for two Maruti vans (red and blue) in February 1993. Both the vans were purchased in Madhya Pradesh and the blue Maruti van was registered in Ujjain with the Registration Number MP 13 D 0385. It is submitted that this number and the said blue Maruti van has been identified by PWs 5, 6 and 13 in their depositions as the vehicle which was involved in the said incident at Fisherman Colony. PW 366 further deposed:

“In the same month (February 1993) I had also arranged for one blue-coloured and another red-coloured Maruti vans also registered at Madhya Pradesh for Suleman Lakdawala. The said vehicles were registered at Madhya Pradesh, Indore, in the name of the purchasers given to me by Suleman Lakdawala. I had given the work of registration to one Kailash Baheti of Indore. Both the said vans were insured by insurance agent, Rakesh Tiwari before giving the same to Suleman Lakdawala. Both the said vehicles had arrived from Indore. I had sent the same to the petrol pump of Suleman and asked him to take the delivery from the said drivers who had brought the delivery of the said vehicles. Accordingly, he took the delivery by making payment to the drivers.”

(emphasis supplied)

The said vehicles were insured through Vijay A. Tamore (PW 338).

Evidence of travel to Dubai for training in Pakistan:

431. The Immigration Officer, Asmita Ashish Bhosale (PW 215) proved the embarkation card (‘X-314’) that was submitted at Sahar Airport on 11-2-1993 by A-32 who was flying to Dubai. The Immigration Officer, Vishambhar Yadavrao Mitke (PW 212) proved the disembarkation card given by A-32 at the time of arrival in Bombay from Dubai on 3-3-1993. The depositions of PWs 215 and 212 establish that A-32 left India on 11-2-1993 for Dubai and returned on 3-3-1993. These depositions further corroborate the confessional statement of A-32 wherein he admitted to flying to Dubai on 11-2-1993 and returning on 3-3-1993.

432. The Immigration Officer, Chandrakant Gangaram Sawant (PW 244) proved the disembarkation card given to him by A-39 while flying to Dubai from Bombay on 8-2-1993. It is submitted that the deposition of PW 244 corroborates the confessional statement of A-39 wherein he stated that he left for Dubai on 8-2-1993 from Bombay.

433. The Immigration Officer, Ajay Krishnaji Lonaare (PW 209) proved the disembarkation card (‘X-306’) submitted by A-36 at the time of his arrival from Dubai to Bombay on 3-3-1993. This deposition further corroborates the confessional statement of A-36 wherein he stated that he returned from Dubai on 3-3-1993.

434. The evidence on record, particularly, as discussed above, sufficiently establishes that each of the appellants, namely, A-32, A-36 and A-39 were actively involved in the conspiracy of causing blasts in Bombay in the following manner:

434.1 The appellants attended conspiratorial meeting at Dubai on 1-3-1993 where they took oath on holy Quran to keep their training in Pakistan a secret.

434.2 On 8-3-1993, the appellants (A-32 and A-39) attended conspiratorial meeting at Babloo's residence.

434.3 On 10-3-1993, the appellant (A-32) attended conspiratorial meeting at Mobina's residence.

434.4 On 11-3-1993/12-3-1993, the appellants (A-36 and A-39) attended conspiratorial meeting at Al-Hussaini Building.

434.5 The appellants received weapons' training in Pakistan.

434.6 On 11-3-1993/12-3-1993, the appellants participated in filling of RDX in vehicles at Al-Hussaini Building.

434.7 On 12-3-1993, the appellants threw hand grenades towards Fisherman Colony which resulted in the death of 3 persons and injuring 6 others.

435. It is contended by Mr Manish that the appellant (A-32) was working as a floor mechanic prior to 1992 December riots, and since then he was jobless and was lured to go to Dubai as it attracts a large number of Indian mechanics, plumbers, electricians, etc. and he willingly went to Dubai not knowing that he was to attend a training camp in Pakistan. It is further contended that he was forced to go to Pakistan since his passport was taken from him in Dubai, and accordingly, he had no choice but to follow the instructions. He thus did not willingly participate in the conspiracy but was forced to carry out the conspiratorial acts.

436. As against this argument, the learned Senior Counsel for CBI pointed out that this line of defence has never been urged by the appellant before the trial court. It is further pointed out that had there been any compulsion, the appellant could have opted out of the conspiracy upon his return from Dubai, which he did not do. Further, on a holistic reading of the entire body of evidence, it is clear that from the very beginning, the appellants have willingly participated in the successful execution of the object of conspiracy. The argument of coercion is a belated argument and necessarily a product of afterthought.

437. It is further contended on behalf of the appellant (A-32) that the reasons for his involvement in the conspiracy were (i) money, (ii) provocation, and (iii) riots. It is further contended that there is no record anywhere that someone will take care of the family of the appellant (A-32) after the blasts. In such a situation, the appellant would not have willingly participated in such a conspiracy without having thought about his family. In reply, the learned Senior Counsel for CBI contended that he was fully conscious of the conspiratorial acts and willingly participated in the conspiracy. The loss, if any, suffered by the appellant during the riots does not justify his terrorist act of killing innocent people. The fact that the appellant (A-32) was fully conscious of his acts is further established from his conduct subsequent to the incident, wherein he travelled to Karnataka immediately after the blasts in order to evade arrest.

438. The fact that the appellant (A-32) was actively involved in the conspiratorial acts is clear from his own confession wherein he has stated that after their return to Dubai from Pakistan, he along with other co-conspirators took oath on holy Quran that they will take revenge for the Bombay riots and will not disclose the training in Pakistan to anyone.

439. All the aforesaid acts clearly establish the fact that the appellants knowingly and willingly participated in the conspiratorial acts and were fully aware and conscious of the fact that they were participating in a conspiracy with a grave design.

440. It is further contended by the counsel for the appellants that Al-Hussaini Building is located in a densely populated area within a few hundred metres of Mahim Police Station and it is strange that neither the statement of the security guard was recorded nor any of the neighbours saw anyone filling RDX in vehicles in the intervening night between 11-3-1993/12-3-1993. Therefore, the learned counsel for the appellants vehemently contended that the prosecution story is fabricated and no reliance can be placed on it. But it is amply clear from the materials on record, the confessional statements of the appellants and other co-accused, deposition of prosecution witnesses and the testimony of the approver (PW 2) that RDX was filled in vehicles which were parked in the garages at Al-Hussaini Building. The aforesaid acts were the result of a conspiracy and were carried out in a covert manner in the night at Al-Hussaini Building.

441. It is further contended by the appellant (A-32) that there are material inconsistencies between his confession and that of A-39 that A-32 went to Mahim on 12-3-1993 in a blue Maruti car while A-39 stated that he went in a white Maruti car to Mahim. In our considered view, these are minor inconsistencies which do not go to the root of the matter since both the abovesaid accused have admitted to have gone to Mahim on the fateful day in a Maruti car.

442. It is further contended by the counsel for the appellants that PW 5 is not an independent witness but is an interested witness since his brother-in-law and sister-in-law sustained injuries in the blast at Mahim. In the light of the materials placed on record, we hold that the testimony of PW 5 is convincing and even the credibility of the witness has not been shaken in the cross-examination. The testimony of Laxman Patil (PW 5) is further corroborated by the testimony of Santosh Patil (PW 6).

443. A perusal of all the above materials clearly shows that the prosecution has established all the charges and the Designated Court rightly convicted them for the same.

Criminal Appeals Nos. 628-29 of 2008

Mohd. Mushtaq Moosa Tarani (A-44) v. State of Maharashtra

444. Mr Priyadarshi Manish, learned counsel appeared for the appellant (A-44) and Mr Gopal Subramanium, learned Senior Counsel, duly assisted by Mr Mukul Gupta, learned Senior Counsel and Mr Satyakam, learned counsel for the respondent.

445. The instant appeals are directed against the final judgment and order of conviction and sentence dated 27-9-2006 and 18-7-2007 respectively, whereby the appellant has been convicted and sentenced to death by the Designated Court under TADA for the Bombay Bomb Blast Cases, Greater Bombay in BBC No. 1 of 1993.

Charges

446. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-44). The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA Act, 1987 and Section 120-B of the Penal Code read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), 4(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

447. In addition to the abovesaid principal charge of conspiracy framed at head firstly, the appellant (A-44) was also charged on other counts which are as under:

At head secondly, the appellant (A-44) committed an offence punishable under Section 3(3) TADA by committing the following overt acts:

(a) He attended a meeting with co-conspirators at Hotel Taj Mahal; and

(b) He surveyed Stock Exchange Building and Bombay Municipal Corporation Building, along with co-accused for the purpose of committing terrorist acts by planting bombs.

At head thirdly, on 12-3-1993, the appellant (A-44) planted a suitcase filled with RDX in Room No. 3078 of Hotel Centaur, Juhu Tara Road, Mumbai, which exploded, causing injuries to three persons and loss of property to the tune of Rs 2.1 crores, thereby committing an offence punishable under Section 3(2)(ii) TADA.

At head fourthly, the appellant (A-44), by causing the aforesaid explosion in Hotel Centaur, Juhu Tara Road, Mumbai, which resulted into injuries to three persons, committed an offence punishable under Section 307 IPC.

At head fifthly, the appellant (A-44), by causing the aforesaid explosion, which resulted into injuries to three persons, committed an offence punishable under Section 324 IPC.

At head sixthly, the appellant (A-44), by causing the aforesaid explosion, which resulted in damage of property, by using explosive material, committed an offence punishable under Section 436 IPC.

At head seventhly, on 12-3-1993, the appellant (A-44) planted an explosive laden scooter bearing No. MH 05 TC 16 at Shaikh Memon Street with an intent to cause death and destruction of properties by explosion and thereby committed an offence punishable under Section 3(3) TADA.

At head eighthly, the appellant (A-44), by planting the aforesaid explosive laden scooter also committed an offence punishable under Section 307 IPC.

At head ninthly, the appellant (A-44), by planting the aforesaid explosive laden scooter with the knowledge that it was likely to cause damage to the properties, committed an offence punishable under Section 435 read with Section 511 IPC.

At head tenthly, the appellant (A-44), by planting the aforesaid explosive laden scooter committed an offence punishable under Section 436 IPC.

At head eleventhly, the appellant (A-44), by planting the aforesaid explosive laden suitcase in Hotel Centaur, Juhu Tara Road, which caused damage to the properties, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head twelfthly, the appellant (A-44), by planting the aforesaid explosive laden suitcase and by possessing RDX in the said suitcase unauthorisedly committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908.

Conviction and Sentence

448. The Designated Judge found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the abovesaid charges as follows:

448.1 The appellant (A-44) has been sentenced to death under Section 3(3) of the TADA Act, 1987 and Section 120-B IPC read with the offences mentioned in the said charge. In addition, the appellant was also ordered to pay a fine of Rs 25,000. (charge firstly)

448.2 He has been sentenced to RI for 12 years along with a fine of Rs 50,000, in default, to further undergo RI for one year for the commission of offence under Section 3(3) TADA. (charge secondly)

448.3 He has been sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for 6 months for the commission of offence under Section 3(2)(ii) TADA. (charge thirdly)

448.4 He has been sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for 6 months for the commission of offence under Section 307 IPC. (charge fourthly)

448.5 He has been sentenced to RI for 3 years for the commission of offence under Section 324 IPC. (charge fifthly)

448.6 He has been sentenced to RI for 10 years along with a fine of Rs 1,00,000, in default, to further undergo RI for 3 years for the commission of offence under Section 436 IPC. (charge sixthly)

448.7 He has been sentenced to RI for life along with a fine of Rs 50,000, in default, to further undergo RI for 1 year for the commission of offence under Section 3(3) TADA. (charge seventhly)

448.8 He has been sentenced to RI for 10 years along with a fine of Rs 50,000, in default, to further undergo RI for 1 year for the commission of offence under Section 307 IPC. (charge eighthly)

448.9 He has been sentenced to RI for 3½ (three-and-a-half) years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months for the commission of offence under Section 435 read with Section 511 IPC. (charge ninthly)

448.10 He has been sentenced to RI for 5 years along with a fine of Rs 12,500, in default, to further undergo RI for 3 months for the commission of offence under Section 436 read with Section 511 IPC. (charge tenthly)

448.11 He has been sentenced to RI for 7 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months for commission of offence under Section 3 of the Explosive Substances Act, 1908. (charge eleventhly)

448.12 He has been sentenced to RI for 7 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months, for the commission of offence under Section 4(b) of the Explosive Substances Act, 1908. (charge twelfthly)

Evidence

449. The evidence against the appellant (A-44) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimonies of prosecution witnesses including eyewitnesses; and

(iv) documentary evidence.

Conspiracy

450. As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done the illegal act, the agreement may be proved by necessary implication. The cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer the same once again.

Confessional statement of the appellant, Mohd. Mushtaq Moosa Tarani (A-44)

451. The prosecution pointed out the involvement of the appellant (A-44) in the conspiratorial acts which is evident from his own confession recorded under Section 15 TADA on 26-5-1993 and 28-5-1993 at 1830 hrs by Shri K.L Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confessional statement is summarised hereinbelow:

(i) Since 1991, the appellant (A-44) had developed good friendship with Tiger Memon and he knew that Tiger Memon was a notorious “goonda”.

(ii) On 5-3-1993, the appellant (A-44), along with his friend Mohd. Farooq Mohammed Yusuf Pawale (A-16), met Tiger Memon and other co-conspirators at Taj Mahal Hotel where Tiger Memon told them that they have to take revenge for the damage suffered by Muslims during the riots and called for their help.

(iii) Thereafter, the appellant and others viz. A-16, PW 2, Bashir Ahmed Usman Gani Khairulla (A-13), Javed Chikna agreed to help Tiger Memon. The appellant, along with Tiger Memon and others, went to survey the BMC building and the Stock Exchange building.

(iv) On 6-3-1993, the appellant along with PW 2 and A-13 went to survey the BMC building, BJP and Shiv Sena office and also showed them the entry and exit gates of the said buildings.

(v) On the same day, after surveying the targets, the appellant met A-16 and told him about what transpired during the day and about the plans of Tiger Memon, on which, A-16 told the appellant not to worry and do whatever has been directed by Tiger Memon.

(vi) On 11-3-1993, the appellant reached Al-Hussaini Building and on the instructions of Tiger Memon understood his job from Anwar. Thereafter, Anwar instructed the appellant to carry a suitcase filled with RDX to Hotel Centaur, Juhu on 12-3-1993 and plant the same in the reserved room.

(vii) On 12-3-1993, the appellant went to Anwar's house and thereafter both of them boarded a maroon-coloured car driven by Asgar Yusuf Mukadam (A-10). Anwar took out pencil detonators from his pocket and inserted them in the three suitcases filled with RDX. Thereafter, the appellant was dropped by Anwar on the way and he (A-44) took a taxi and reached Hotel Centaur.

(viii) On reaching the hotel, the appellant kept the bag filled with explosives in Room No. 3078 and came back to Al-Hussaini Building where he informed Anwar that he had planted the bag containing bomb at Hotel Centaur, Juhu in Room No. 3078.

(ix) On Anwar's instructions, the appellant drove a scooter filled with RDX and parked the same at Zaveri Bazaar.

(x) The appellant, thereafter, met A-16 and informed everything to him on which A-16 told him that he should not worry and nothing would happen as the appellant has done the job for their community and “Allah” would help him.

452. On perusal of the aforesaid confessional statement of the appellant (A-44), the following facts emerge:

(i) The appellant was an old associate of Tiger Memon;

(ii) The appellant was fully aware of Tiger Memon's character and that he was a “goonda”;

(iii) The appellant had participated in the conspiratorial meeting with Tiger and his co-conspirators;

(iv) In the said meeting, the appellant agreed to help Tiger Memon in the object of the conspiracy; and

(v) Pursuant to the said agreement, the appellant performed several acts, namely, reconnaissance of targets, planting of suitcase laden with RDX and scooter bomb at the targets.

453. The confession of the appellant (A-44) establishes the charges framed against him in the trial. The fact that the appellant (A-44) knowingly committed the overt act of planting the bomb at Hotel Centaur, Juhu, is evident from his own confession. He himself informed Anwar that he had planted the bag containing bomb at Hotel Centaur, Juhu. The appellant (A-44) was fully conscious of the gravity and diabolic nature of his act which is apparent from his confession wherein he stated that after committing the overt acts he himself informed everything to A-16 who consoled him by saying that “Allah” would help him as he has done all this for his community.

Retraction statement

454. Mr Manish, learned counsel for the appellant (A-44) contended that the abovementioned confession of the appellant dated 26-5-1993 and 28-5-1993 should not be relied upon since it was sought to be retracted by the appellant on 7-6-1994. In reply, the learned Senior Counsel for CBI submitted that a voluntary and free confession, even if retracted subsequently, can be relied upon. It is also relevant to point out that the retraction allegedly made by the appellant also fails to pinpoint the reason behind his failure to make a complaint to the authorities or police officers or any other authority including the court regarding his signatures being obtained on blank papers and/or the papers containing some typed material and the reason to effect the said signatures. In this case, the Designated Court rightly relied upon the original confession and discarded the subsequent retraction. Since we have elaborately discussed the admissibility or otherwise of the retraction statements in the earlier part of our judgment, there is no need to refer the same once again.

Confessional statements of co-accused

455. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-44) are summarised hereinbelow.

Confessional statement of Mohd. Shoaib Mohammed Kasam Ghansar (A-9)

456. The confessional statement of A-9 under Section 15 TADA has been recorded on 19-4-1993 and 22-4-1993 by Shri P.K Jain, the then DCP, Zone X, Bombay. A brief summary of the statement with reference to the appellant is as follows:

(i) When A-9 along with Parvez Nazir Ahmed Shaikh (A-12) and Asgar Yusuf Mukadam (A-10) reached the house of Anwar, a boy of fair colour with curly hair, wearing coat and pant, also came along with him.

(ii) After Anwar inserted the pencil detonators in the bags, the boy with curly hair was dropped and was asked to go to Hotel Centaur, Juhu and to plant the bag at the designated place and come back.

(iii) At Al-Hussaini Building, first, the boy with curly hair came back and then Anwar came back followed by Parvez (A-12).

(iv) In the afternoon of 12-3-1993, on the instructions of Anwar, A-44 drove the scooter filled with black chemical and parked the same at Zaveri Bazaar.

Confessional statement of Asgar Yusuf Mukadam (A-10)

457. The confessional statement of A-10 under Section 15 TADA has been recorded on 20-4-1993 and 23-4-1993 at 1800 hrs by Shri K.L Bishnoi (PW 193), the then DCP, Zone III, Bombay. A brief summary of the confessional statement of A-10 with reference to the appellant (A-44) is as follows:

(i) When A-10 reached the house of Anwar, he came down along with a boy and all of them sat in a car. In the car, Anwar took out pencil detonators from his pocket and inserted the same in the bags. Thereafter, Anwar instructed the boy (whom he referred to as Mushtaq) to get down with the bag and plant the same at the designated place.

(ii) When A-10 reached Al-Hussaini after dropping Anwar and others, the appellant (A-44) also reached there. Thereafter, as instructed by Anwar, A-44 drove a scooter filled with RDX and parked the same at Zaveri Bazaar.

Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

458. The confessional statement of A-12 under Section 15 TADA has been recorded on 18-4-1993 and 20-4-1994 at 0650 hrs by Shri P.K Jain (PW 189), the then DCP, Zone X, Bombay. A brief summary of the statement with reference to the appellant (A-44) is as follows:

(i) When A-12 along with A-10 and A-9 reached the house of Anwar, they met a person with curly hair whose name was Mushtaq. Mushtaq and Anwar sat in a car, and thereafter, Anwar opened the bags and inserted pencil detonators which he was carrying.

(ii) When A-12 reached Al-Hussaini Building after planting the suitcase at Hotel Sea Rock, the appellant (A-44) had also reached there.

Confessional statement of Imtiyaz Yunus Miyan Ghavate (A-15)

459. The confessional statement of A-15 under Section 15 TADA has been recorded on 7-5-1993 and 9-5-1993 by Shri K.L Bishnoi, (PW 193), the then DCP, Zone III, Bombay. A brief summary of the said statement with reference to the appellant is as follows:

(i) When A-15 reached the residence of Anwar, the appellant had also come there. He had curly hair and fair complexion and was wearing a black-coloured coat.

(ii) A-10 came there in a maroon-coloured Maruti van and the appellant along with Anwar and others sat in the van and left the place.

(iii) When the appellant came to Al-Hussaini Building, he was holding his coat in his hand. Thereafter, Anwar instructed him to plant the scooter filled with RDX.

460. A perusal of the confessional statements of all the above accused viz. A-9, A-10, A-12 and A-15 clearly establish the fact that it corroborates the confessional statement of the appellant (A-44). The abovesaid confessions of the co-accused further establish the following facts:

(i) The appellant (A-44) was seen in the company of Anwar (AA);

(ii) The appellant went along with Anwar (AA) and Asgar Yusuf Mukadam (A-10) in a Maruti van;

(iii) The appellant witnessed the insertion of pencil detonators in the suitcases filled with RDX;

(iv) The appellant planted the suitcase filled with RDX in Hotel Centaur, Juhu;

(v) The appellant returned to Al-Hussaini Building and reported the successful planting of the suitcase bomb to Anwar; and

(vi) On the instructions of Anwar (AA), the appellant proceeded to park the scooter filled with RDX at Zaveri Bazaar.

Deposition of prosecution witnesses

Deposition of Ravindra Sitaram Vichare (PW 17)

461. The deposition of PW 17 was recorded on 20-11-1995. The relevant material in his evidence is as follows:

(i) PW 17 deposed that at the relevant time, he was working as a bellboy at Hotel Centaur, Juhu.

(ii) On 12-3-1993, around 11.45 a.m, one guest got down from the motor taxi and was carrying a light blue-coloured briefcase type bag.

(iii) He took the bag from the hands of the guest and kept it in the baggage section.

(iv) After sometime, the guest came to the baggage section and picked up his bag and enquired about the lift for going to the room.

(v) He showed the way towards the lift to the guest.

(vi) At around 3.00 p.m/3.30 p.m, when he was in the lobby of the hotel, there was a loud sound of explosion.

(vii) He identified the appellant (A-44) before the court in the dock as the person who came to the hotel on 12-3-1993.

(viii) He also identified the appellant in the identification parade dated 7-6-1993 conducted by the Special Executive Magistrate, Vaman D. Sapre (PW 249) at Santacruz Police Station.

Deposition of Milind Purushottam Kamble (PW 18)

462. The deposition of PW 18 was recorded on 22-11-1995 and he deposed that:

(i) At the relevant time, he was working as an attendant in the housekeeping department of Hotel Centaur, Juhu.

(ii) On 12-3-1993, the appellant (A-44) enquired from him about the location of Room No. 3078 in the hotel.

(iii) Floor Supervisor, who was also present with PW 18, pointed out towards Room No. 3078.

(iv) He saw the appellant (A-44) entering into Room No. 3078 with a light blue colour suitcase.

(v) Thereafter, the appellant (A-44) came out of the room and left saying that he is going to the restaurant to meet someone and will return shortly. At that time, he was not carrying the blue suitcase.

(vi) He identified the appellant (A-44) before the court in the dock as the person who kept the suitcase in Room No. 3078.

(vii) He also identified the appellant (A-44) in the identification parade held on 7-6-1993 conducted by the Special Executive Magistrate, Vaman D. Sapre (PW 249).

(viii) He also identified Article 9 (coat), Article 10 (black pant) and Article 11 (white shirt) being the clothes worn by the appellant (A-44) on 12-3-1993 when he visited the hotel.

463. From the perusal of the testimony of PWs 17 and 18, it is clear that the witnesses established the identity of the person, who planted the suitcase in the hotel, as the appellant. They very well proved how the appellant went to the room where the blast took place. The presence of witnesses in the hotel at the time when the appellant went to the hotel for planting the suitcase has been fully established. The witnesses have withstood the lengthy cross-examination and established themselves as credible and reliable witnesses.

Deposition of Nitin Sumitran (PW 260)

464. The deposition of PW 260 was recorded on 13-1-1998. He deposed that:

(i) At the relevant time, he was working as a receptionist at Hotel Centaur, Juhu.

(ii) On 8-3-1993, a male person, aged about 30 to 35 years, approached the front desk and told him that he was having a reservation in the name of one Mr Sanjeev Rai and that he had come to make an advance payment of Rs 5000 towards reservation of the room.

Deposition of Sanjay Manohar Dalvi (PW 261)

465. The deposition of PW 261 was recorded on 13-1-1998. He deposed that at the relevant time, he was working as the front office cashier and he confirmed that a room was booked at Hotel Centaur, Juhu by one Mr Sanjeev Rai on 8-3-1993 and he issued a receipt of Rs 5000 (Ext. 1093) as advance payment towards the room rent.

Deposition of Cedric Merwyn Creado (PW 262)

466. The deposition of PW 262 was recorded on 13-1-1998. He deposed that:

(i) At the relevant time, he was working as a front office receptionist and on 11-3-1993, a male person came to the desk and enquired for a room.

(ii) He asked him as to whether he has any prior reservation, on which, he replied that he was having a reservation in the name of Sanjeev Rai.

(iii) He gave him a registration card which he returned after filling the same.

(iv) On verification of the card, he found that the name was mentioned as “Gyanchandani Lalit” and the address was 501, Bel Air Apartment, Linking Road, Bandra, Bombay. As the booking was made in the name of Sanjeev Rai, he asked him as to why he has written a different name on which he replied that since people know him by this name that is why he had mentioned the said name.

(v) He deleted the name and re-wrote the name as Sanjeev Rai on the Registration Card. A corrected reservation slip (Ext. 1096) was also prepared by the hotel staff.

(vi) Thereafter, PW 262 allotted Room No. 3078 to him and gave him the keys of the room.

Deposition of Titus Peter Paul Pinto (PW 102)

467. The deposition of PW 102 was recorded on 27-9-1996. PW 102 is a resident of Bel Air Apartment since 1963 and he is the Secretary of the said cooperative housing society. He deposed that there is no flat bearing No. 501 in the said apartment. He further deposed that no occupant by the name of Sanjeev Rai or Gyanchandani Lalit was living at the relevant time in that building.

Deposition of Ravindra Mahadev Kolte (PW 322)

468. The deposition of PW 322 was recorded on 27-4-1998. He deposed that:

(i) At the relevant time, he was working as an Assistant Security Officer at Hotel Centaur, Juhu. He also described about the scene of the blast.

(ii) Three persons were injured in the blast on 12-3-1993 at 1530 hrs in Room No. 3078.

(iii) The ceiling and flooring of the said room were completely destroyed and the occupant of the said room was not present in the room at the time of blast.

(iv) He also made a complaint which was registered as CR No. 155 of 1993.

Deposition of Jaisingh Shivajirao Patil, Police Officer (PW 544)

469. The deposition of PW 544 was recorded on 10-12-1999. In his deposition, he deposed that:

(i) He inspected the scene of the blast in the presence of panch witness, Tiyadath R. Nair (PW 438) and prepared a spot panchnama, Ext. 1414.

(ii) He also prepared a panchnama dated 15-3-1993 of four sealed sample packets containing debris collected by the experts from FSL marked as Ext. 1859 in the presence of Sadashiv M. Pattanshetti (PW 549).

(iii) He also proved that he recorded FIR being CR No. 155 of 1993 marked as Ext. 1208.

(iv) The aforesaid articles which were seized by him were sent to the forensic lab for examination.

(v) FSL Reports (Exts. 2604 and 2605) show the presence of traces of high explosive substance viz. RDX on these articles.

Deposition of Sridhar M. Pandit (PW 355)

470. At the relevant time, he was working as GM (Technical), Hotel Corporation of India. He deposed that he inspected the site of the explosion and the estimated damage at Hotel Centaur, Juhu came to the tune of Rs 2.1 crores.

Deposition of Ketan Kantilal Shah (PW 433)

471. He was the guest staying at the hotel at the relevant time and has proved the injuries sustained by him on account of the explosion in the hotel on 12-3-1993.

Deposition of Vaman Dhondu Sapre, Special Executive Magistrate (PW 249)

472. He is the person who conducted TIP on 7-6-1993 at Santacruz Police Station in which the appellant (A-44) was identified by PWs 17 and 18 and has proved the TIP panchnama, Ext. 1071 dated 7-6-1993.

Deposition of Ramesh Pandurang Bhasare (PW 74)

473. He is a panch witness who was running a cigarette-bidi stall at Zaveri Bazaar at the relevant time and he deposed as under:

(i) The appellant (A-44) made a statement in the office of Crime Branch on 19-5-1993.

(ii) Thereafter, the appellant (A-44) led the police party and panchas to a footwear shop at Khambekar Street and took out the keys from a pit like portion on the roof.

(iii) The police party was further taken to Room No. 12 of a building opposite to Building No. 160 which was locked.

(iv) The appellant opened the lock with the keys which he had taken out from the pit.

(v) Thereafter, from a cupboard, the appellant (A-44) took out a black coat, black pant, white shirt and two keys marked as Article 258-B(i).

(vi) The police party recovered the aforesaid articles vide discovery panchnama marked as Ext. 389.

The eyewitness at the hotel has also identified the above clothes as the same which was worn by the appellant (A-44) at the time of planting of the suitcase bomb.

Evidence in respect of the unexploded scooter parked in front of D.P Jewellers at Zaveri Bazaar

Deposition of Shashikant Ramkumar Shukla (PW 26)

474. PW 26 is an eyewitness to the incident who witnessed the parking of the said scooter by the appellant (A-44) in front of the shop of D.P Jewellers, Zaveri Bazaar. He deposed that:

(i) At the relevant time, he was the owner of a cutlery shop at Vithalwadi Naka, Zaveri Bazaar.

(ii) On 12-3-1993, he saw the appellant (A-44) quarrelling with a car driver in front of D.P Jewellers, Zaveri Bazaar for parking space. He forcibly parked the grey-coloured scooter with Registration No. MH 05 TC 16 and left the place on the pretext of offering namaz at “Juma Masjid”.

(iii) On 16-3-1993, he learnt that the scooter parked in front of the shop of D.P Jewellers, Zaveri Bazaar contained explosives.

(iv) Thereafter, he went to Lokmanya Tilak Marg Police Station to see the scooter which was taken into custody by the police. There, he met PI Subhash Jadhav who recorded his statement and showed him two scooters. He identified the scooter which was parked in front of the shop of D.P Jewellers at Zaveri Bazaar.

(v) He also identified the appellant (A-44) before the court in the dock as the person who had parked the scooter.

(vi) He also identified the appellant (A-44) in the identification parade dated 4-6-1993 conducted by Sharad Vichare, Special Executive Magistrate, (PW 459).

Deposition of Shantaram Sakharam Sigwan (PW 27) (eyewitness)

475. PW 27 is a salesman working at Shop No. 263, Shaikh Memon Street, Zaveri Bazaar. He deposed that:

(i) He saw the appellant (A-44) arguing with a car driver to park his scooter in front of D.P Jewellers. After forcibly parking his grey scooter No. MH 05 TC 16, the appellant left on the pretext of offering namaz at “Juma Masjid”.

(ii) On 12-3-1993, an explosion took place in front of the shop of Narayandas Jewellers and there was panic in the locality and all the shopkeepers closed their shops and everyone left for their homes.

(iii) On 16-3-1993, he learnt from a feriwala that the police have seized a scooter which was parked in front of the shop of D.P Jewellers.

(iv) He, thereafter, went to the police station and noticed that a grey scooter bearing Registration No. MH 05 TC 16 was parked in the compound of the police station.

(v) He identified the scooter and PI Jadhav recorded his statement.

(vi) He also identified the appellant (A-44) before the court in the dock as the person who had parked the scooter.

(vii) PW 27 also identified the appellant (A-44) in the TIP conducted on 4-6-1993 by Sharad S. Vichare, Special Executive Magistrate (PW 459) and memorandum panchnama, Ext. 1461 was prepared for the same.

476. The eyewitnesses discussed above clearly established the following facts:

(i) The appellant (A-44) came on a scooter at the relevant time.

(ii) The appellant (A-44) had a sort of quarrel with a car driver with regard to parking.

(iii) The appellant (A-44) tried to forcibly park the said scooter, which drew the attention of the witnesses.

(iv) The appellant (A-44) left the place on the pretext of offering namaz.

(v) The identity of the appellant (A-44) is fully established and he has been identified by both the witnesses in TIP.

Deposition of Subhash Dattaram Jadhav (PW 547)

477. At the relevant time, PW 547 was working as PI with L.T Marg Police Station. He deposed that:

(i) He received a message that an unclaimed scooter has been found parked in front of D.P Jewellers at Zaveri Bazaar.

(ii) He visited Zaveri Bazaar along with panch witness, Shambhu K. Dwadiga (PW 451).

(iii) He inspected the scooter and noticed that there were black spots outside the dickey of the scooter which was locked. He further deposed that the handle of the scooter was free.

(iv) Since blast had already occurred in Bombay, he got suspicious and, accordingly, sent a message to the control room for sending Bomb Detection and Disposal Squad (BDDS).

(v) Meanwhile, he cordoned off the area where the scooter was parked and sand bags were placed around the scooter and two panch witnesses, namely, Shri Shambhu (PW 451) and Shri Prasanna were also called.

(vi) Nand Kumar Chaugule (PW 444), an officer of BDDS, reached the spot along with his team and inspected the vehicle.

(vii) PW 444 found that there was a layer of brownish oily substance at the top, and thereafter, a layer of blackish oily substance and below the blackish substance, again one brownish layer was present in the dickey. He also noticed that the said cakes were also containing some pellets.

(viii) PW 547 further deposed that PW 444 took away three metallic tubes and one pipe with holes from the said three layers. The materials recovered were sealed in packets, and thereafter, wrapped in a brown paper.

(ix) PW 444 prepared a spot panchnama dated 15-3-1993 and instructed the police constable to take the scooter to L.T Marg Police Station.

(x) On 10-6-1993, SI Dastagir Ghavandi (PW 552) handed over two keys seized by him during investigation of CR No. 155 of 1993.

(xi) On the same day, he called Vijay Ramji Wala (PW 454), Supervisor and Mr Ajit Vanjari (PW 651) of Vasan Automobiles and in the presence of the two panchas, he gave the said two keys to PW 454 to check whether the same fits in the lock of the scooter which was parked in front of D.P Jewellers. PW 454 was able to apply the keys to the said scooter.

(xii) He then drew a panchnama which is marked as Ext. 1868 stating that the keys found matched with all the three locks of the scooter i.e dickey lock, steering lock and the helmet-box lock.

478. The deposition of PW 547 has proved that:

(i) A scooter was reported abandoned in front of D.P Jewellers at Zaveri Bazaar.

(ii) The condition in which the scooter was found aroused suspicion.

(iii) PW 444 was called from BDDS who successfully diffused the bomb fitted in the front side dickey of the scooter (the substance subsequently was found to be RDX).

(iv) The witness, in front of the independent witnesses, also checked that the keys recovered at the instance of the appellant fitted in the scooter.

Deposition of Nandkumar Anant Chaugule (PW 444)

479. The deposition of PW 444 was recorded on 5-10-1998/6-10-1998. At the time of the incident, he was the Incharge, Senior Inspector of Police, Bomb Detection and Disposal Squad of CID Intelligence, Bombay. He deposed that:

(i) On 15-3-1993, he received information through his operator that a scooter has been found lying in suspicious condition opposite to D.P Jewellers, Zaveri Bazaar. He went to Zaveri Bazaar and inspected the scooter. The dickey of the scooter was opened by SI Pandre with the help of hook and rope.

(ii) The dickey of the said scooter contained a black substance with timer device inserted in the same. The remaining part of the dickey contained three or more polythene bags of brownish colour material.

(iii) Thereafter, the timer was pulled out by SI Pandre by means of a small fishing hook tied with a rope. He further deposed that he separated the detonator from the timer pencil and made the same ineffective and handed over the same to the police officers at L.T Marg Police Station.

(iv) The other officers from the BDDS removed the black and brown material from the front dickey of the scooter and gave the same to the police officers of L.T Marg Police Station.

(v) From the physical appearance of the said black material, he gathered that the same was RDX and from the physical appearance of brown material, he gathered that the same was nitroglycerine, both being highly explosive substances.

Deposition of Dhananjay Raghunath Daund (PW 532)

480. The deposition of PW 532 was recorded on 2-12-1999. At the relevant time, he was a PSI attached with Worli Police Station. He deposed that:

(i) He arrested the appellant (A-44) on 18-5-1993 and handed him over to PI Shri Ghavandi (PW 552), IO in CR No. 155 of 1993.

(ii) In the presence of Ramesh Pandurang Bhasare (PW 74), two keys of a Bajaj scooter entangled in a ring were recovered vide disclosure and seizure panchnama (Ext. 389) at the instance of the appellant who led the police party to Kwality Footwear shop, Khambekar Street.

(iii) He handed over the said keys to PI Ghavande (PW 552).

The owner of the scooter was traced through examination of the following witnesses

Deposition of Sreeram Jeetram Vasan (PW 81)

481. PW 81 was the sub-dealer of scooters carrying on business in the name of Mohan Automobiles. He deposed that:

(i) He used to purchase scooters from Vasan Automobiles and sell the same to customers.

(ii) He knows a person by the name Sayed Farid Sayed Abdul Wahab alias Farid Bhai (PW 298) who is also a sub-dealer for Bajaj Auto Ltd. and is carrying on business under the name Nisha Sales and Services.

(iii) In the month of February and March 1993, he sold 22 Bajaj Chetak scooters and 2 Kinetic Honda scooters to PW 298 out of the lot of 40 scooters purchased by him from Vasan Automobiles.

(iv) On 18-3-1993, when he went to the office of the Crime Branch, he identified the three scooters, which were sold by him to Nisha Sales and Services on 14-2-1993, 4-3-1993 and 11-3-1993 and he further produced the notes Exts. 424, 424-A and 424-B respectively of the said scooters to Inspector Homi Irani.

Deposition of Sayeed Abdul Sattar (PW 82)

482. PW 82 was working with Munaf Halari (AA). He had helped him in getting loan through his friend Rahid Shaikh. He deposed that:

(i) On 10-3-1993, Munaf (AA) contacted him for purchase of 2/3 Bajaj scooters stating that he required the same for his foreign delegation.

(ii) On the same day, around 6 p.m, they took delivery of 2 scooters of blue and stone colour bearing Registration Nos. MH 04 Z 261 and MH 05 TC 29, respectively, from Asgar Ali Tahir Ali Masalawala, scooter dealer, (PW 299).

(iii) Next day i.e on 11-3-1993, Munaf (AA) took delivery of the third scooter bearing Registration No. MH 05 TC 16 and asked PW 82 to arrange for documents for the registration of the said scooters and got two xerox copies of ration card from Abdul Aziz, an RTO agent. Munaf (AA) collected the documents from him on 12-3-1993.

(iv) When he asked Munaf (AA) to repay the loan, Munaf told him to forget about it since the scooters have been purchased by Tiger Memon and that Tiger Memon has used the same for the bomb blast.

(v) Munaf Halari also cautioned him not to disclose this to anyone, else Tiger Memon will shoot him and his family members.

(vi) He identified the scooters in court through their registration numbers.

Deposition of Govind Bechan Baria (PW 452)

483. At the relevant time, PW 452 was working with Excellent Petroleum Co. situated at J.J Junction. He deposed that:

(i) Munaf Halari (AA) had requirement of 3 scooters and he had approached him on 10-3-1993 for the same.

(ii) He suggested to him that he should go to the scooter dealer, Asgar Ali Tahir Ali Masalawala (PW 299).

(iii) PW 299 referred Munaf (AA) to Sayed Farid Sayed Abdul Wahab alias Farid Bhai (PW 298), scooter dealer who was working under the name of Nisha Sales and Services.

Deposition of Ajit Vithalrao Vanjari (PW 651)

484. PW 651, at the relevant time, was working as a Sales Manager with M/s Vasan Automobiles. He deposed that he had sold 25 Bajaj Chetak scooters to Mohan Automobiles.

Deposition of Sambhali S. Hargude (PW 325)

485. PW 325 was the Sub-Inspector on station house duty on 15-3-1993. He deposed that:

(i) He received information about the scooter bearing Registration No. MH 05 TC 16 parked at Zaveri Bazaar through Police Havaldar Shri Kumbhar posted at Shaikh Memon Street chowki.

(ii) In the dickey of the said scooter, the iron pieces mixed with a black-coloured substance were found.

(iii) The dickey was also containing a timer pencil inserted at the centre of the said black substance.

(iv) The bomb squad defused the said bomb by dismantling the timer pencil.

Deposition of Vijay Ramji Wala (PW 454)

486. PW 454 was a service provider at M/s Vasan Automobiles, Kalyan. He deposed that on being asked to inspect the scooter with the help of the keys given to him at L.T Marg Police Station, he discovered that the said keys belonged to the said scooter. He was not sure about the registration number of the scooter. He, however, said that it was either MH 05 TC 15 or MH 05 TD 16. He then deposed that it was MH 05 TC 16. It is relevant to point out that the keys which were recovered at the instance of the appellant (A-44) belonged to the same scooter which was planted by the appellant at Zaveri Bazaar and was laden with highly explosive substances.

487. From the evidence discussed above, it is established that:

(i) The appellant (A-44) actively participated in the conspiracy;

(ii) He was an old associate of Tiger Memon;

(iii) He agreed with the object of conspiracy in the meeting held at Hotel Taj Mahal and performed several overt acts pursuant to the said agreement;

(iv) He associated himself with Tiger Memon (AA) and on his instructions with Anwar (AA).

(v) He was seen taking instructions and being in association with Anwar (AA) by several co-conspirators.

(vi) In his presence, detonators were fitted in the suitcases filled with RDX.

(vii) He planted one such suitcase laden with RDX in Room No. 3078 of Hotel Centaur, Juhu which exploded injuring 3 persons and causing damage to the property to the tune of Rs 2.10 crores;

(viii) He parked a scooter laden with RDX in front of the shop of D.P Jewellers, Zaveri Bazaar;

(ix) He threw the keys of the room on the roof of a footwear shop where he hid the clothes he was wearing at the time of the commission of the offence and also the keys of the scooter which he had parked at Zaveri Bazaar to avoid detection by police; and

(x) He went to his friend Mohd. Farooq Mohammed Yusuf Pawale (A-16) and told him everything who, in turn, supported him by saying that “Allah” would help him as he has done this for his community.

488. It is contended on behalf of the appellant (A-44) that no TIP was conducted in reality. It is pointed out by the prosecution that in the instant case, after the arrest of the appellant, identification parade was conducted on 4-6-1993 by Sharad S. Vichare, Special Executive Magistrate (PW 459) wherein PWs 27 and 26 identified the appellant as the person who had parked the scooter filled with RDX at Zaveri Bazaar. It is further submitted that on 7-6-1993, TIP was conducted by Vaman D. Sapre, Special Executive Magistrate (PW 249) wherein PWs 17 and 18 identified the appellant as the person who had visited Hotel Centaur, Juhu and planted the suitcase in Room No. 3078 of the hotel. It is further submitted that the said parade was duly conducted in the presence of panch witnesses and memorandum panchnamas were also prepared for the same.

489. It is further contended on behalf of the appellant (A-44) that Nandkumar Anant Chaugule (PW 444), an officer of BDDS, forcibly opened the lock of the dickey so the question of opening the dickey with the keys recovered by PW 454 from the roof of the footwear shop does not arise.

490. Further, the prosecution submitted that the appellant (A-44), after his arrest on 18-5-1993, made a disclosure statement on 19-5-1993 and led the police party to Kwality Footwear shop at Khambekar Street, and thereafter, he took the keys from its roof and further led the police party to Room No. 12 of the building opposite the shop. It is further stated that the appellant then opened the lock of the room with the same keys and went inside the room and two keys of Bajaj scooter and other articles were recovered from a cupboard. Thereafter, the said keys were handed over to the IO who gave the same to PW 547. In order to complete the link, PW 547 called Vijay Ramji Wala (PW 454) who is a Supervisor at M/s Vasan Automobiles to check whether the keys were of the same scooter which was parked by the appellant at Zaveri Bazaar. Thereafter, PW 454 inserted the keys in all the three locks of the scooter and the same tallied with the locks. Thus it was proved that the keys recovered at the instance of the appellant belonged to the scooter laden with RDX recovered from Zaveri Bazaar.

491. It is also contended on behalf of the appellant (A-44) that the handwriting in which the booking was made in the hotel was not confirmed during investigation. We are unable to accept the contention raised since on perusal of the entire evidence as produced by the prosecution, it is established that the appellant planted the suitcase laden with RDX in Room No. 3078 of Hotel Centaur, Juhu. We are satisfied that sufficient evidence has been brought on record by the prosecution to show that the said room was booked by the conspirators in a fake name for which payment was also deposited in advance.

492. It is further contended by the appellant that PW 2 (approver) has not named the appellant in his deposition. The prosecution pointed out that this does not have any bearing on the prosecution case.

493. We are satisfied that the prosecution has produced sufficient evidence against the appellant (A-44) to bring home the charges framed against him.

Criminal Appeals Nos. 637-38 of 2008

Asgar Yusuf Mukadam (A-10) and Shahnawaz Abdul Kadar Qureshi (A-29) v. State of Maharashtra

494. Ms Farhana Shah, learned counsel appeared for the appellants (A-10 and A-29) and Mr Gopal Subramanium, learned Senior Counsel, duly assisted by Mr Mukul Gupta, learned Senior Counsel and Mr Satyakam, learned counsel for the respondent.

495. The abovesaid appeals are directed against the final judgment and order of conviction and sentence dated 18-9-2006 and 19-7-2007 respectively, whereby the appellants (A-10 and A-29) have been sentenced to death by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

496. A common charge of conspiracy was framed against all the co-conspirators including the appellants (A-10 and A-29). The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit the following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA Act, 1987 and Section 120-B of the Penal Code read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), 4(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

497. In addition to the aforesaid principal charge of conspiracy framed at head firstly, the appellants (A-10 and A-29) were also charged on other common counts which are summarised as under:

At head secondly, the appellants (A-10 and A-29), abetted and knowingly and intentionally facilitated the commission of terrorist acts and acts preparatory to terrorist acts by participating in the landing and transportation of arms, ammunition and explosives at Shekhadi on 3-2-1993 and 7-2-1993; by participating in the conspiratorial meetings at the residence of Nazir Ahmed Anwar Shaikh (AA) and Baya Moosa Bhiwandiwala (A-96) to chalk out the plans for commission of terrorist acts and by participating in the preparation of vehicle bombs at Al-Hussaini Building and collecting money from the co-accused Mulchand Shah for disbursement to various accused persons who were involved in criminal conspiracy and thereby committed an offence punishable under Section 3(3) TADA.

At head thirdly, the appellants (A-10 and A-29), planted an explosive laden Maruti van in the compound of Plaza Cinema on 12-3-1993, which exploded causing death of 10 persons, injuring 36 others and further damage to property worth Rs 87 lakhs and thereby committed offences punishable under Section 3(2)(i) TADA.

At head fourthly, the appellants (A-10 and A-29), by causing the aforesaid explosion caused death of 10 persons and thereby committed an offence punishable under Section 302 IPC read with Section 34 IPC.

At head fifthly, the appellants (A-10 and A-29), by causing the aforesaid explosion, caused hurt to 36 persons and thereby committed an offence punishable under Section 307 IPC read with Section 34 IPC.

At head sixthly, the appellants (A-10 and A-29), by causing the aforesaid explosion, caused grievous hurt to 16 persons and thereby committed an offence punishable under Section 326 IPC read with Section 34 IPC.

At head seventhly, the appellants (A-10 and A-29), by causing the aforesaid explosion, voluntarily caused hurt to 27 persons and thereby committed an offence punishable under Section 324 IPC read with Section 34 IPC.

At head eighthly, the appellants (A-10 and A-29), by causing the aforesaid explosion, caused damage to properties and thereby having committed an offence punishable under Section 435 IPC read with Section 34 IPC.

At head ninthly, the appellants (A-10 and A-29), by causing the aforesaid explosion, caused damage to the property used as dwelling house and for custody of property and thereby having committed an offence punishable under Section 436 IPC read with Section 34 IPC.

At head tenthly, the appellants (A-10 and A-29), by causing the aforesaid explosion committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head eleventhly, the appellants (A-10 and A-29), by causing the aforesaid explosion, committed an offence punishable under Section 4(b) of the Explosive Substances Act, 1908.

At head twelfthly, the appellants (A-10 and A-29) by possessing RDX in the said Maruti van, which was used for causing the aforesaid explosion, committed an offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884.

At head thirteenthly, the appellant (A-10), abetted and knowingly facilitated explosions at Hotel Sea Rock, Hotel Centaur and Airport Centaur and thereby committed an offence punishable under Section 3(3) TADA.

At head fourteenthly, the appellant (A-10), travelled in the van MFC 1972 with the explosive laden suitcases and thereby committed the offences punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.

Conviction and Sentence

498. The Designated Judge found the appellants guilty on all the aforesaid charges. The appellants have been convicted and sentenced for the abovesaid charges as follows:

498.1 The appellants have been sentenced to death under Section 3(3) TADA and Section 120-B IPC read with the offences mentioned in the said charge. In addition, the appellants were also ordered to pay a fine of Rs 25,000 each. (charge firstly)

498.2 The appellants (A-10 and A-29) were convicted and sentenced to RI for 9 years and 10 years respectively along with a fine of Rs 50,000 each, in default, to further undergo RI for 1 year for commission of offence under Section 3(3) TADA. (charge secondly)

498.3 The appellants have been sentenced to death, subject to confirmation of the same by this Court, along with a fine of Rs 25,000 each, for the offence punishable under Section 3(2)(i) TADA. (charge thirdly)

498.4 The appellants have been sentenced to death, subject to confirmation of the same by this Court, along with a fine of Rs 25,000 each, for the offence punishable under Section 302 IPC read with Section 34 IPC. (charge fourthly)

498.5 The appellants have been sentenced to RI for life along with a fine of Rs 50,000 each, in default, to further undergo RI for 1 year, for the offence punishable under Section 307 IPC read with Section 34 IPC. (charge fifthly)

498.6 The appellants have been sentenced to RI for 10 years along with a fine of Rs 50,000 each, in default, to further undergo RI for 1 year, for the offence punishable under Section 326 IPC read with Section 34 IPC. (charge sixthly)

498.7 The appellants have been sentenced to RI for 3 years for the offence punishable under Section 324 IPC read with Section 34 IPC. (charge seventhly)

498.8 The appellants have been sentenced to RI for 7 years along with a fine of Rs 50,000 each, in default, to further undergo RI for 1 year, for the offence punishable under Sections 435 and 436 IPC read with Section 34 IPC. (charges eighthly and ninthly)

498.9 The appellants have been sentenced to RI for 10 years along with a fine of Rs 25,000 each, in default, to further undergo RI for 6 months, for the offence punishable under Section 3 of the Explosive Substances Act, 1908. (charge tenthly)

498.10 The appellants have been sentenced to RI for 7 years along with a fine of Rs 25,000 each, in default, to further undergo RI for 6 months, for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908. (charge eleventhly)

498.11 The appellants have been sentenced to RI for 2 years for the offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884. (charge twelfthly)

498.12 The appellant (A-10) has been sentenced to RI for 7 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months, for the offence punishable under Section 3(3) TADA. (charge thirteenthly)

498.13 The appellant (A-10) has been sentenced to RI for 5 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months, for the offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fourteenthly)

Evidence

499. The evidence against the appellants (A-10 and A-29) is in the form of:

(i) their own confessions;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimonies of prosecution witnesses; and

(iv) documentary evidence.

Conspiracy

500. The object behind the conspiracy is the ultimate aim of it and many means may be adopted to achieve this ultimate object. The crime of conspiracy is complete the moment there is an agreement in terms of Section 120-A IPC. However, where the conspiracy has in fact achieved its object and resulted in overt acts, all the conspirators in terms of the law explained hereinabove would be liable for all the offences committed in pursuance of the conspiracy on the basis of the principle of agency which is inherent in the agreement which constitutes the crime of conspiracy. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer the same once again.

Confessional statements

Confessional statement of Asgar Yusuf Mukadam (A-10)

501. The confessional statement of A-10 under Section 15 TADA has been recorded on 23-4-1994 (1800 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A brief summary of the confessional statement of A-10 is reproduced hereunder:

(i) He was working in the office of Tiger Memon (AA) and his job was to maintain an account of the hawala money and the money received in the smuggling of gold and silver.

(ii) Due to riots in December 1992, the office of Tiger Memon (AA) was closed which resumed on 17th December after the riots subsided. Again, on 6-1-1993, his office was closed as the riots had resurfaced.

(iii) Anwar (AA) and Shafi (AA) always used to be by the side of Tiger Memon (AA). The smuggled silver used to be purchased by Raju Laxmichand Jain alias Raju Kodi (A-26).

(iv) The money received by Tiger Memon (AA) in the above transactions was kept in a “hathi account” maintained by Tiger with Mulchand Sampatraj Shah alias Choksi (A-97). Whenever Tiger needed money he would either withdraw it himself or through A-10.

(v) In January 1993, A-10 had come to know from Anwar that Tiger was going to smuggle arms and ammunition, explosive (kala sabun) and hand grenades.

(vi) On 10th/11th February, Yakub Abdul Razak Memon (A-1) directed A-10 to meet him in the evening. At about 6.30 p.m-7.00 p.m, A-10 visited the residence of A-1 at which time 3 tickets and 3 passports of Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Mohd. Farooq Mohammed Yusuf Pawale (A-16) and Salim Phansopkar were handed over to him and he was asked to pick them up from Midland Hotel and then drop them at the airport for their journey to Dubai. Accordingly, A-10 carried out the said instructions and dropped the aforesaid three persons at the airport after handing over their passports and tickets. The said tickets were for Dubai.

(vii) The next day, A-10 went to Tiger's residence on his instructions. There he saw Anwar Theba (AA), Shafi (AA), and A-12 standing outside the building. Thereafter, he met Tiger Memon and escorted him to the airport where Rafiq Madi and Javed Chikna (AA) also arrived. Tiger left for Dubai along with Javed Chikna instructing A-10 to remain in contact with A-1 and in case of requirement of money to A-1 to get the same from A-97. A-10 was also told by Tiger that Sharif Abdul Gafoor Parkar alias Dadabhai (A-17) was to be paid Rs 5 lakhs against the landing and that the same should be paid to him.

(viii) After Tiger's departure, A-10 along with the co-accused (A-12) collected Rs 5 lakhs from A-97 and handed over the said amount to A-17 at his residence in Juhu.

(ix) The next day, A-10 was instructed over the phone by A-1 to collect Rs 1 crore from A-97 for him. A-10, with the help of the other co-accused, collected the said amount from A-97 and gave it to A-1.

(x) On A-1's instructions, on 17th or 18th February, A-10 along with other co-accused viz. Mohd. Rafiq alias Rafiq Madi Musa Biyariwala (A-46) picked up Irfan Chougule (AA) from Paramount Hotel and A-29 and his companion from Bandra Reclamation and dropped them at the airport.

(xi) On 9th March, A-1 directed A-10 to transfer Rs 25 lakhs from Tiger's account to Irani's account and also Rs 10 lakhs to Ohalia's account and the same was done by contacting Choksi (A-97) over the phone.

(xii) In the morning of 10th March, A-10 transferred Rs 21 lakhs from Tiger's account to Irani's account by contacting Choksi (A-97) over the phone on the instructions of A-1.

(xiii) On 11th March, A-10, following the instructions of Tiger, picked up two VIP bags, two rexine shoulder bags and one briefcase from the garage at Tiger's residence and carried them to Room No. 17 of Haj Committee House near Crawford Market. Co-accused Parvez (A-12) also accompanied him. The key of the room was given by Tiger Memon.

(xiv) On the instructions of Shafi, A-10 took a new scooter from his residence and left it at the residence of Tiger.

(xv) On 11-3-1993, at about 11 p.m, following the instructions of Tiger, A-10 took two briefcases and went to the residence of Mobina alias Baya Moosa Bhiwandiwala (A-96) in Tiger's Maruti van bearing No. MFC 1972, collected Tiger's passport and ticket and reached the airport along with his relative Mohd. Shoaib Mohammed Kasam Ghansar (A-9). There, A-9 checked in his luggage and got the boarding pass issued. The remaining briefcase, passport and ticket were given to Tiger by A-10 on his arrival at the airport at about 3.45 a.m At the time of departure, Tiger instructed A-10 to follow the instructions of Anwar.

(xvi) On returning to Tiger's residence, A-10 met co-accused Javed Chikna, Shafi, Gani, Parvez, Bashir, Usman and several others. He also saw one new Ambassador car, one blue-coloured Commander jeep, two Maruti 800 cars (one blue and one white), three new Bajaj scooters and two old Bajaj scooters, all of which were parked there laden with black-coloured chemical.

(xvii) While returning from Al-Hussaini Building along with A-9 and A-12, A-10 handed over the plastic bags which contained empty boxes of the said chemical to the attending staff of the garbage vehicle at Bandra Reclamation. Then, A-10 collected three VIP bags from Tiger's garage and at that time A-9 and A-12 were also with him. They picked up Anwar from his residence in a vehicle. One more boy, namely, Mushtaq (A-44) also came along with Anwar. Anwar placed aluminium like pencils in the chemical contained in all the three bags. On Anwar's direction, A-10 took the vehicle to Linking Road and dropped Mushtaq (A-44), and also dropped Parvez and Anwar on the way with one VIP bag each and reached Al-Hussaini Building, Mahim around 11.45 p.m-12.00 o'clock at night.

(xviii) At Al-Hussaini Building, Anwar Theba (AA), A-44 and A-12 joined A-10 within an hour. A-10 saw that Anwar picked up aluminium rod like pencils which were lying on the back seat of the vehicle and inserted them one by one in all the five scooters which were parked there.

(xix) Further, A-10 saw that on the instructions of Anwar Theba (AA), A-15, A-12, A-44 and a boy known to Javed Chikna took out the scooters one by one and left the place.

(xx) A-10 also saw that Anwar had individually briefed all of them about parking the said scooters.

(xxi) A-10 was asked by Anwar whether A-9 could drive a scooter and when he answered in the affirmative, Anwar asked A-10 to direct A-9 to park one scooter near Zaveri Bazaar. Following the said instructions, A-9 left with the fifth scooter.

(xxii) A-10 further noticed that at about 1.45 p.m, Usman arrived with a new red-coloured Maruti van in which two VIP bags were kept by the boys of Javed Chikna. A-10 was given the keys of the said vehicle by Anwar while those of Maruti van bearing No. MFC 1972 were given by Anwar to Javed Chikna.

(xxiii) A-10 was directed by Anwar and Javed Chikna to park the said Maruti van near Plaza Cinema. On refusal by A-10 as he was scared, he was directed to take A-29 along with him. A-10 and A-29 took the red Maruti van and parked it in the parking lot of Plaza Cinema at about 2.15 p.m

(xxiv) After sometime, A-10 heard the sound of a bomb blast while boarding a taxi hired at Dadar T.T Both A-10 and A-29 arrived at Crawford Market where they both parted ways. After roaming around for 15-20 minutes in the market, he then took a local train from Churchgate and reached home.

Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)

502. The confessional statement of A-29 under Section 15 TADA has been recorded on 18-5-1993 and 21-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A brief summary of his confession is reproduced hereunder:

(i) A-29 was a resident of Nargis Dutt Nagar Zhopadpatti, Bandra Reclamation Road, opposite Telephone Exchange, Bandra (W), Bombay.

(ii) A-29 was acquainted with Javed Chikna and Usman of Mahim since the last 3-4 years.

(iii) A-29 participated in the landing of smuggled goods at Shekhadi along with Javed Chikna, Shafi, Riyaz, Munna, Karimulla, Akbar, Anwar, Parvez, Imtiyaz, Yeda Yakoob, Dadabhai and others.

(iv) In the evening of 1-2-1993, Javed Chikna asked A-29 to accompany him to bring the smuggled goods of Tiger Bhai. He along with Javed, Usman, Nasir Dakhla and Shafi left in a blue-coloured Commander jeep. On the way, they met Riyaz along with three boys, namely, Munna, Karimulla and Akbar who were in a Maruti van near a hotel. Shafi and Munna discussed something and the Maruti van followed their jeep.

(v) A-29 was acquainted with Tiger, who met them along with Anwar Theba (AA), A-12 and A-15. Tiger arranged for their stay in the hotel.

(vi) A-29 attended a meeting in a hotel on the way to Shekhadi, in which Tiger informed all the persons that he was bringing weapons to take revenge against Hindus.

(vii) A-29 actively participated in the unloading, reloading and opening of packets containing smuggled arms and ammunition and explosives at Waghani Tower.

(viii) A-29 travelled in a jeep containing arms, etc. from Waghani Tower to Bombay along with Bashir Ahmed Usman Gani Khairulla (A-13) and Akbar.

(ix) A-29, at the instance of Javed, gave his own passport as well as of his friend Abdul Akhtar to Usman.

(x) A-29 reached Dubai along with Irfan Chaugule and Abdul Akhtar. They met Gul Mohammed alias Gullu Noor Mohammed Shaikh (A-77) at Dubai Airport and were received by Ayub Memon. Anwar, Haji Yakoob, Nasir Dakhla, Bashir Muchhad and Mohd. Rafiq had already reached Dubai and met them at the place of their stay. Tiger Memon also met them there.

(xi) A-29 attended conspiratorial meetings in Dubai with Tiger Memon and others.

(xii) A-29 went to Pakistan from Dubai along with Yakub Yeda, Bashir Muchhad, Anwar, Nasir Dakhla, Gul Mohammed, Mohd. Rafiq and Irfan Chougule for receiving training in arms and ammunition. No immigration formalities were observed at the airport while travelling to Pakistan.

(xiii) A-29 received training in handling of revolver, AK-47, AK-56 rifles, hand grenades and making of bombs with black chemical powder (RDX) and pencil bomb timer devices. The training was given by Pakistani army officers for about ten days. Tiger Memon also attended the said training.

(xiv) After the training, A-29 returned to Dubai along with others without completing any immigration formalities in the same manner.

(xv) In Dubai, at the instance of Tiger Memon, he along with others took an oath by putting their hands on the holy Quran that they would take revenge for the atrocities committed on the community and would indulge in jehad for Islam and they would not disclose anything about the training to anyone and in the event of their arrest they would not disclose anything about others to the police.

(xvi) A-29 returned to Bombay from Dubai along with Nasim, Feroz Abdul Akhtar and Mohd. Rafiq.

(xvii) On the night of 11-3-1993, A-29 went to the flat of Tiger Memon and received Rs 5000 from him. He also noticed that a number of boys were already present there.

(xviii) On 12-3-1993, A-29 was present in Al-Hussaini Building along with Javed Chikna, Bashir Muchhad, Bashir Mahimwala, Usman, Salim Dandekar, Zakir, Abdul Akhtar, Anwar, Shafi and 3-4 unknown boys. In his presence, Usman came there with one bag full of hand grenades. Javed Chikna distributed 3 to 4 hand grenades each to the boys standing there.

(xix) Two VIP suitcases were kept by Anwar in a red Maruti van. A-29 was told by Anwar that the vehicle was filled with bombs and directed him to go along with A-10 and leave the vehicle at Plaza Cinema. Thereafter, he along with A-10 took the vehicle and reached Plaza Cinema at about 1.45 p.m or 2.00 p.m The security guards at Plaza Cinema asked something to A-10 and he parked the vehicle in one corner and came out from there, took a taxi and came to Bhendi Bazaar side.

(xx) After the bomb blast, A-29 fled to Rampur and was later arrested by police from Indore.

503. From the above, it can easily be inferred that both the accused viz. A-10 and A-29, apart from implicating themselves in various activities along with other accused persons, corroborate with each other. It is also clear that both the appellants were present at Tiger's residence and went in a red-coloured Maruti van which was loaded with explosive substances and parked it in the compound of Plaza Cinema which later exploded killing 10 persons and injuring 36 others.

Confessional statements of co-accused

Confessional statement of Zakir Hussain Noor Mohammed Shaikh (A-32)

504. The confessional statement of A-32 under Section 15 TADA has been recorded on 16-5-1993 (1125 hrs) and 19-5-1993 (1730 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to the appellants (A-10 and A-29):

(i) On 11-2-1993, A-10 went to Sahar Airport with Zakir Hussain, Saleem Dandekar, Parvez at the instance of Javed Chikna and handed over to them their passports and tickets for Dubai.

(ii) A-29 went to Pakistan by a PIA flight for the purpose of training.

(iii) A-29 attended conspiratorial meeting on 10-3-1993 at the residence of Mobina (A-96).

(iv) A-29 actively participated in the preparation of vehicle bombs in Al-Hussaini Building compound in the intervening night between 11-3-1993/12-3-1993 by using RDX which had landed at Shekhadi.

Confessional statement of Mohd. Rafiq alias Rafiq Madi Musa Biyariwala (A-46)

505. The confessional statement of A-46 under Section 15 TADA has been recorded on 21-4-1993 (1900 hrs) and 24-4-1993 (2125 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to the appellants:

(i) A-10 worked in the office of Tiger Memon.

(ii) On 12-2-1993, A-10 accompanied Tiger Memon and other co-accused and went to the airport wherefrom Tiger and other co-accused left for Dubai.

(iii) On 18th February, A-10 along with A-46 picked up Irfan Chougule and other co-accused persons and dropped them at the airport after handing over to them their passports and tickets to Dubai.

(iv) On 17-2-1993, A-29 was dropped by the said accused and Anwar along with other accused persons for their departure to Dubai.

Confessional statement of Shaikh Ali Shaikh Umar (A-57)

506. The confessional statement of A-57 under Section 15 TADA has been recorded on 19-4-1993 (1200 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to the appellants:

(i) A-10 worked in the office of Tiger Memon.

(ii) A-10 drove the explosives laden red Maruti van along with A-29 from Al-Hussaini Building on 12-3-1993.

(iii) A-29 was present when Anwar Theba (AA) kept two RDX laden suitcases in the dickey of a red-coloured Maruti van and he (A-29) along with A-57 kept two packets of “kala sabun” in the dickey of the said van. He further stated that the said van was taken by A-10 and A-29 accompanied by A-57 himself.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

507. The confessional statement of A-64 under Section 15 TADA has been recorded on 22-1-1995 and 24-1-1995 by Shri H.C Singh (PW 474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. In the abovesaid confessional statement, the following references have been made to the appellants:

(i) A-10 was present at Al-Hussaini Building compound in the intervening night between 11-3-1993/12-3-1993 when RDX was being filled in the vehicles.

(ii) A-29 participated in the first as well as second landing at Shekhadi.

(iii) A-29 was present in Dubai when A-64 and others went there and attended conspiratorial meetings in Dubai.

(iv) A-29 went to Pakistan by a PIA flight for training.

(v) A-29 attended conspiratorial meeting on 10-3-1993 at the residence of Mobina.

(vi) A-29 actively participated in preparation of vehicle bombs at Al-Hussaini Building compound in the intervening night between 11-3-1993/12-3-1993 by using RDX which had landed at Shekhadi.

Confessional statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100)

508. The confessional statement of A-100 under Section 15 TADA has been recorded on 15-4-1993 (2230 hrs) and 17-4-1993 (1700 hrs), by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. In the abovesaid confessional statement, the following references have been made to the appellants:

(i) A-29 participated in the training of firearms and ammunition at Islamabad, Pakistan along with his associates during February 1993.

(ii) A-29 was present at the residence of Tiger Memon in the intervening night between 11-3-1993/12-3-1993 along with the other co-accused.

Confessional statement of Mohd. Shoaib Mohammed Kasam Ghansar (A-9)

509. The confessional statement of A-9 under Section 15 TADA has been recorded on 19-4-1993 (1310 hrs) and 22-4-1993 (0030 hrs) by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. In the abovesaid confessional statement, the following references have been made to the appellant (A-10):

(i) A-9 and A-10 are both from the same village i.e Karda in District Ratnagiri.

(ii) A-9's elder sister is married to A-10's elder brother, Anwar.

(iii) A-10 told him that he works for Tiger and does the business of hawala and smuggling of gold and silver.

(iv) A-9 obtained the boarding pass used by Tiger on 11-3-1993 at the request of A-10.

(v) A-10 was at the airport to see off Tiger Memon before the blasts and he arranged for his boarding pass.

(vi) A-10 and A-9 came back to Al-Hussaini Building after dropping Tiger on 11-3-1993. At that time, the co-accused persons were filling chemicals in the vehicles as told to him (A-9) by A-10.

(vii) A-10 was driving the Maruti van on 12-3-1993 and he dropped the co-accused sitting in the van at a taxi-stand to go to Hotel Sea Rock, Bandra and Centaur Hotel near the airport.

(viii) A-10 gave a scooter to A-9 for parking the same at Zaveri Bazaar inter-section.

(ix) A-9 met A-10 on 13-3-1993 after the blasts.

Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

510. The confessional statement of A-12 under Section 15 TADA has been recorded on 18-4-1993 (1400 hrs) and 21-4-1993 (0650 hrs) by Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. In the abovesaid confessional statement, the following references have been made with regard to A-10:

(i) A-10 was working in the office of Tiger Memon.

(ii) A-12 was also working in Tiger's office along with A-10 and other associates to help him in hawala transactions as well as in the landing of smuggled silver.

(iii) On 15-2-1993/16-2-1993, A-10 along with A-12 went to the residence of Tiger where they along with the others were paid Rs 10,000 by Shafi.

(iv) On 11-3-1993, at noon, A-10 and A-12 were given two small suitcases, two hand bags and one big suitcase by Tiger Memon which were taken by them to Room No. 17 of Musafirkhana in which one bag was containing AK-56 rifles while the other was containing hand grenades.

(v) On the night of 11th March, A-10 was assisting Gani and others in the filling of black soap into the secret cavities of the vehicles.

(vi) At the time of leaving for home, A-10 along with A-12 and A-9 were given five plastic bags in which the chemicals were kept which were thrown by them into the wastage van of BMC.

(vii) A-10 along with A-12 and A-9 carried three suitcases in a van to the residence of Anwar. From there, Anwar and A-44 joined them. Anwar inserted three timer pencils in each of the said suitcases.

(viii) After the blast, on 13-3-1993, A-10 met A-12 and A-9 and received the keys of the scooter which was planted by A-12 at Katha Bazaar.

Confessional statement of Imtiaz Yunusmiyan Ghavate (A-15)

511. The confessional statement of A-15 under Section 15 TADA has been recorded on 7-5-1993 (1230 hrs) and 9-5-1993 (1330 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made with regard to A-10:

(i) While working for Tiger, A-15 delivered money to various people on the instructions of A-10.

(ii) A-10 was managing the delivery of hawala money in India.

(iii) Tiger with A-10 and other co-accused persons was also involved in selling smuggled silver.

(iv) A-10 was seated in the Maruti van No. MFC 1972 in the morning of 12-3-1993 along with A-15.

Confessional statement of Sharif Abdul Gafoor Parkar alias Dadabhai (A-17)

512. The confessional statement of A-17 under Section 15 TADA has been recorded on 18-4-1993 (0015 hrs) and 20-4-1993 (0250 hrs) by Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. In the abovesaid confessional statement, a reference has been made to A-10 that he gave Rs 5 lakhs to A-17 for the landing work.

Confessional statement of Mohd. Mushtaq Musa Tarani (A-44)

513. The confessional statement of A-44 under Section 15 TADA has been recorded on 26-5-1993 (1655 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made with regard to A-10:

(i) On 12-3-1993, A-10 was driving a maroon-coloured car which was carrying A-44 and other accused involved in planting bombs.

(ii) A-44 again met A-10 around noon on 12-3-1993 at Tiger's house.

Confessional statement of Baya Musa Bhiwandiwala alias Mobina (A-96)

514. The confessional statement of A-96 under Section 15 TADA has been recorded on 30-4-1993 (1800 hrs) and 2-5-1993 (1800 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to A-10:

(i) A-10 worked for Tiger.

(ii) A-10 took the tickets for Tiger to Dubai from Mobina's residence on 11-3-1993.

Confessional statement of Mulchand Sampatraj Shah alias Choksi (A-97)

515. The confessional statement of A-97 has been recorded on 14-5-1993 (2055 hrs) and 18-5-1993 (1615 hrs) by Vinod Balwant Lokhande (PW 183), the then DCP, Airport Zone. In the abovesaid confessional statement, the following references have been made to A-10:

(i) A-10 alias Munna opened Tiger Memon's Hathi account with A-97.

(ii) A-10 (Munna) had been routinely operating Tiger Memon's hathi account with A-97.

(iii) All dealings with A-10 were done on the instructions of Tiger Memon.

Confessional statement of Mohd. Farooq Mohammed Yusuf Pawale (A-16)

516. The confessional statement of A-16 under Section 15 TADA has been recorded on 20-5-1993 (1630 hrs) and 22-5-1993 (1645 hrs) by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. In the abovesaid confessional statement, the following references have been made to A-29:

(i) On 8-2-1993, A-16 along with others (including A-29) went to the spot of landing and assisted Tiger in landing of smuggled items containing 84 bags and in their transport to Bombay.

(ii) A-29 attended the training of dismantling and handling of firearms and bombs including chemical bombs as well as hand grenades in Pakistan and, thereafter, went to Dubai along with others.

Confessional statement of Mohd. Iqbal Mohammed Yusuf Shaikh (A-23)

517. The confessional statement of A-23 under Section 15 TADA has been recorded on 20-5-1993 (1000 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, a reference has been made to A-29 that he was present at Tiger's house on the day of the blast.

Confessional statement of Munna alias Mohd. Ali Khan alias Manojkumar Bhanwar Lal Gupta (A-24)

518. The confessional statement of A-24 has been recorded on 30-4-1993 (1615 hrs) and 9-5-1993 (1900 hrs) by Sanjay Pandey (PW 492), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, a reference has been made to A-29. It was disclosed that A-29 actively participated in the landing and transportation of smuggled goods from Shekhadi coast to Waghani Tower where the packets containing arms and ammunition and explosives were opened under the supervision of Tiger Memon.

Confessional statement of Abdul Khan alias Yakub Khan Akhtar Khan (A-36)

519. The confessional statement of A-36 under Section 15 TADA has been recorded on 19-5-1993 (1740 hrs) and 21-5-1993 (1820 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to A-29:

(i) A-36 knew A-29 for many years.

(ii) A-29 took A-36 to Dubai for training.

(iii) Tiger told A-29 in Dubai that his ticket to Bombay was ready and that he should leave.

(iv) A-29 loaded RDX in the vehicles on 11-3-1993.

Confessional statement of Feroz alias Akram Amani Malik (A-39)

520. The confessional statement of A-39 under Section 15 TADA has been recorded on 19-4-1993 (2230 hrs) and 23-4-1993 (2050 hrs) by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. In the abovesaid confessional statement, A-39 refers to A-29 that he received training in Pakistan.

Confessional statement of Nasim Ashraf Shaikh Ali Barmare (A-49)

521. The confessional statement of A-49 under Section 15 TADA has been recorded on 16-5-1993 (930 hrs) and 18-5-1993 by Shri Krishna Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to A-29:

(i) A-29 joined Nasim Barmare in Pakistan and received training in arms and ammunition.

(ii) In Dubai, they all were given inflammatory speech by Tiger Memon to take revenge against the atrocities upon the Muslims.

(iii) A-29 left Dubai along with other co-accused.

Confessional statement of Salim Rahim Shaikh (A-52)

522. The confessional statement of A-52 under Section 15 TADA has been recorded on 15-4-1993 and 18-4-1993 by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. In the abovesaid confessional statement, the following references have been made to A-29:

(i) A-29 was one of the nine persons who underwent training in Pakistan. They were given training in use of hand grenades, RDX and detonators.

(ii) On 6-3-1993, after coming to Bombay, all the persons (including A-29) underwent training in Pakistan and met at the residence of Tiger Memon in Bandra to discuss about the bomb blasts.

(iii) Tiger gave Rs 5000 to each person in another meeting at his flat next day where the persons who had gone for training were also present.

(iv) On the night of 11-3-1993, A-52 saw several persons at Tiger's flat at Al-Hussaini Building including A-29.

Confessional statement of Gul Mohammed alias Gullu Noor Mohammed Shaikh (A-77)

523. The confessional statement of A-77 under Section 15 TADA has been recorded on 17-4-1993 (1410 hrs) and 19-4-1993 (1800 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to A-29:

(i) A-77 met A-29 in a hotel room in Dubai.

(ii) A-29 came to Pakistan with them for training.

Confessional statement of Mohd. Rafiq Usman Shaikh (A-94)

524. The confessional statement of A-94 under Section 15 TADA has been recorded on 14-5-1993 (1830 hrs) and 16-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to A-29:

(i) A-29 was in Dubai with other co-accused.

(ii) Tiger gave tickets to A-29 to fly to Bombay from Dubai.

Confessional statement of Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh A-98

525. The confessional statement under Section 15 TADA has been recorded on 17-5-1993 (1430 hrs) and 20-5-1993 (1130 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to A-29:

(i) A-29 joined him for training in Pakistan.

(ii) On 1-3-1993, after others also reached Dubai, the co-accused (A-29), who had taken training in Pakistan at the instance of Tiger, took oath after placing his hands on holy Quran. He also heard about the speech given by Tiger regarding the riots in Bombay.

526. A perusal of all the aforesaid confessional statements substantiate the fact that the appellants viz. A-10 and A-29 were fully aware of the conspiracy and wilfully participated in performing the conspiratorial acts. Further, the confessions of co-accused viz. A-32, A-46, A-57, A-64, A-100, A-9, A-12, A-15, A-17, A-44, A-96, A-97, A-16, A-23, A-24, A-36, A-39, A-49, A-52, A-77, A-94 and A-98 corroborate the confessional statements of the appellants (A-10 and A-29) in material particulars.

527. It is also clear that the confessions made by the appellants as well as by the co-accused are truthful and voluntary and were made without any coercion. All safeguards enumerated under Section 15 TADA and the Rules framed thereunder have been duly complied with while recording the confessions of the appellants.

Retraction statements

528. Ms Farhana Shah, learned counsel for the appellants contended that the confessional statements of the appellants and the confessional statements of the co-accused persons relied upon by the prosecution against them were retracted subsequently, and therefore, it is not safe to base conviction on the said confessional statements under Section 15 TADA. In reply to the above contention, the learned Senior Counsel for CBI submitted that where the original confession was truthful and voluntary and has been recorded after strictly following the prescribed procedure, the subsequent retraction and denial of such confession under Section 313 statement by the accused is nothing but is a result of an afterthought. Since the very same objection had already been considered in the earlier part of our judgment, we are not inclined to repeat the same once again. The said conclusion is applicable to these appeals also.

Deposition of prosecution witnesses

Evidence of Mohd. Usman Jan Khan (PW 2) (approver)

529. PW 2, in his deposition, implicated the appellants and withstood a lengthy cross-examination. He deposed as follows:

(i) PW 2 identified A-10 and A-29.

(ii) The appellants (A-10 and A-29) worked with him in the conspiracy which led to the blasts in Bombay and they were involved in planning, conspiracy, training, landing as well as in blasting of bombs.

(iii) A-29 participated in the landing of arms and ammunition at Shekhadi.

(iv) On 11-2-1993, when he went to meet Tiger Memon at Al-Hussaini Building, A-10 took him to Tiger's flat on the 5th floor.

(v) A-29 participated in the training in Pakistan.

(vi) When he (PW 2) returned after surveying Chembur Refinery on 11-3-1993, he noticed several boys with Tiger Memon including the appellants at that time.

530. The said witness, PW 2 duly corroborates the confessions of the co-accused and the confessions of the appellants themselves. In the present case, the deposition of PW 2 has also been corroborated in material particulars.

531. It has been contended by the counsel for the appellants that there are contradictions in the statement of PW 2 in respect of the presence of A-10 as to whether he was standing downstairs or in the hall of the 5th floor. On a perusal of the entire evidence of PW 2, it can be inferred that when PW 2 came to Al-Hussaini Building, Tiger Memon was in the flat which was on the fifth floor along with various accused including the appellants. Thereafter, PW 2 described about a meeting where Tiger explained the modalities of the blasts and he came down using the stairs when A-10 was standing downstairs.

532. It is further contended by the counsel for the appellants that there are certain contradictions regarding the air tickets given to A-10 and regarding introducing A-32 to A-10 at Hotel Midland with respect to Ext. 25. It is relevant to mention that Ext. 25 was not the document which was pressed into service by the prosecution. PW 2 proposed to make full and true disclosure of all the facts and on the said promise he was granted pardon. Both the statement and the deposition were made under different statutes under the law and are not comparable with each other. The approver has withstood the rigorous cross-examination and the prosecution has also corroborated the deposition of the approver by adequate evidence which further affords credibility to his deposition.

Evidence of Sanjay Salunke (PW 3) and Sanjay Mangesh Salaskar (PW 4)

533. PWs 3 and 4, who were the security guards on duty at Plaza Cinema at the relevant time have also witnessed the incident and have deposed as follows:

(i) On 12-3-1993, at about 2.15 p.m, one red-coloured Maruti van had been inside Plaza Cinema Theatre compound from the main gate and was parked in scooter parking area.

(ii) There was an altercation between PW 4 and the driver of the said van regarding parking of the van in the scooter parking area.

(iii) Seeing this, PW 3, along with two other security guards, approached towards them and explained the correct parking area for the same. Thereafter, the persons in the Maruti van parked it in the car parking area.

(iv) After about 45 minutes to 1 hour, there was a big explosion in the car parking area. The whole area was shaken and PW 3 noticed that the said red-coloured Maruti van parked there was totally damaged. The other motor vehicles in the said area also caught fire and several persons were injured and a situation of panic emerged among the persons who had come to the theatre.

(v) Other security guards viz. Mr Singh and Mr Manchekar were also injured and, subsequently, Mr Singh died due to the injuries suffered by him in the incident.

(vi) PW 3 had taken his colleague security guard PW 4, who suffered a back injury and two-three more injured persons to Sion Hospital and the said persons were admitted in the hospital after examination.

(vii) On the way to Sion Hospital, PW 4 told PW 3 that the persons with whom they had altercation and who had come in a red-coloured Maruti van were responsible for the said incident as some thing had gone wrong in the said red-coloured Maruti van.

(viii) PW 3 and PW 4 identified A-10 in the court as the driver of the said red-coloured Maruti van.

(ix) PW 3 and PW 4 identified A-29 as the person who was sitting by the side of the driver i.e A-10.

534. Ms Farhana Shah, learned counsel for the appellants contended that PW 3 was an employee of one Hindustan Security Force and not of Plaza Cinema as stated by him in his deposition. Further, it was contended on behalf of the appellants that the said witness had not specifically described/stated about the height of A-10 and thus it is a material omission. It was also contended that his “general” description of the kurta-pyjama worn by the accused at the time of the said incident and not explaining the details thereof is also a material omission. Thus, it was argued that in view thereof, the identification of A-10 by PW 3 is doubtful.

535. PW 3 was an employee of Hindustan Security Force which was engaged for providing security guards to Plaza Cinema and he was “deputed” and was on “duty” as a security guard at Plaza Cinema. Further, he has never stated in his deposition that he was an “employee of Plaza Cinema”. A-10 has been correctly identified by PW 3 in the court at the time of his deposition and also in the test identification parades dated 21-3-1993 and 25-4-1993, conducted by SEM, PW 462 and in the parade dated 14-5-1993 conducted by SEM, PW 469. Thus, the identification has been duly established by the eyewitnesses.

536. Further, the depositions of PWs 3 and 4 sufficiently prove the incident and involvement of the appellants. The said depositions also provide corroboration with the abovesaid confessional statements of A-10 and A-29 that they parked the Maruti van laden with explosives in Plaza Cinema compound which caused the said explosions causing death of 10 persons and injuries to 36 people.

Other Witnesses

537. Kashiram Kubal (PW 449), Piyara Singh (PW 447), Mohan Mayekar (PW 455), Dattatreya Pawar (PW 448) and Ramesh Lad (PW 450) proved the injuries sustained by them during the explosion. Dr Rajaram Bhalerao (PW 646), a doctor at Hinduja Hospital who issued certificates regarding treatment of PW 449 and PW 407 sufficiently corroborates the fact of injury suffered by the victims. Vinayak A. Mayekar (PW 456), who was the brother of the deceased Vishram Mayekar, who died due to head and chest injuries sustained in the explosion at Plaza Cinema proved the death of the said victim and also deposed about the charge being taken by him of the dead body on 13-3-1993 from KEM Hospital. Ramesh Barasingh (PW 457), son of the deceased Kisan Barasingh, who died due to scalp injury sustained in the explosion at Plaza Theatre proved the death of the said victim and also deposed about the charge being taken by him of the dead body on 13-3-1993 from KEM Hospital. This fact is further corroborated by the deposition of Dr Walter Vaz (PW 476), who certified the deaths and its cause of the abovesaid victims.

538. Ramesh Naik (PW 305), the Supervisor of Plaza Cine House deposed regarding hearing a loud explosion on 12-3-1993, at about 3.14 p.m, and saw that the cars parked in the parking area caught fire and a red Maruti van was completely destroyed, a big crater was formed, compound wall was collapsed, watchman and other staff were injured and further inspected and ascertained the damage of Rs 50 lakhs and lodged a complaint with PW 551 of Mahim Police Station. Further, he visited Sion and KEM Hospital and found that watchman Singh and project operators Shinde and Vasta had succumbed to their injuries.

539. Ramesh Tulsiram Kolhe (PW 551), an officer from Mahim Police Station who recorded the complaint of the above i.e Ramesh Naik (PW 305) proved the said document. He further deposed that on 13-3-1993, he registered accidental death of Shinde, Vasta, Nissar, Siddiqui and sent a letter to the coroner for effecting post-mortem, etc. under panchnama, Ext. 1894 and took charge of the brass articles penetrated in the body of PW 449 brought from Hinduja Hospital by PC Kamble. PW 551 also deposed about the accidental death reports prepared by him in respect of the deceased persons.

540. Nivrutti S. Kokare (PW 557), was the officer who inspected the scene of offence and prepared the inspection panchnama in the presence of witnesses vide panchnama, Ext. 1918 regarding the crater being formed in the area of car parking, collapse of northern compound wall, burnt vehicles, etc. He also took charge of 4 to 5 broken parts of the said red Maruti van and the number plate bearing No. MAM 962 amongst other things.

541. It is contended on behalf of the appellants with respect to the deposition of PW 305 that on 12-3-1993, despite arrival of so many policemen at the place of explosion, there was no panchnama prepared on the said date and it came to be prepared only the next day. Further, with respect to the deposition of Narsingh Sherkhane (PW 556), it is contended that the said API of Bombay Police prepared the panchnama only on 14-3-1993 whereas the offence was committed on 12-3-1993, and therefore, there has been delay in recording the panchnama which is a serious lapse in the procedure. It is brought to our notice that the police had cordoned off and sealed the said area so as to ensure that the scene of crime was not tampered with. Moreover, after several explosions in the city, there was a state of panic and law and order situation which the police were required to handle as a priority.

542. It is further contended by Ms Farhana Shah on behalf of the appellants that no efforts were made by the prosecution or PW 557 to trace the ownership of the said Maruti van. It is further contended with respect to PW 557 that, on inspection of the scene of offence and after effecting the seizure of articles therefrom, he did not mention the articles seized and certain details while drawing up the panchnama and thus his deposition cannot be relied upon.

543. A perusal of the deposition of PW 557 reveals that he has duly inspected the scene of crime and carefully drawn up the panchnama (Ext. 1918) mentioning all the details. He has mentioned the details of all the articles seized by him therein, more particularly, the broken parts of the said Maruti van and the number plate bearing No. MFC 1972. Further, it is amply clear from the depositions of PWs 3 and 4 that the said Maruti van came inside Plaza Cinema, they having seen the accused in the said van and it has been significantly proved that the appellants were inside the van and that it is the said van which caused the explosion. It has already been proved that the two Maruti vans, one of blue and the other of red colour were purchased by Mohd. Shafi Jariwala (AA) from Suleman Lakdawala (PW 365) and Kailash Baheti (PW 342). Further, the number of blue Maruti van is MH 13 D 0385 but the number of red-coloured Maruti was not known as it was not registered. The delivery of both these vans was given by PW 366 which was supplied by PW 365, who in turn delivered these vans to Shafi Jariwala.

544. It is contended on behalf of the appellants that no evidence has been brought on record to corroborate that the appellants had any driving licence. To this, the prosecution pointed out that A-10 has been duly and properly identified as the driver of the said Maruti van by the eyewitnesses viz. PWs 3 and 4. It has also been revealed by him in his own confessional statement as well as in the confessional statements of other co-accused that he drove the car to Plaza Cinema. Notwithstanding the absence of driving licence, it has been established that A-10 was driving the car.

545. Chordekar (PW 361) has proved the damage caused to MTNL (public property). FSL Reports, Exts. 1952 to 1955 show the traces of RDX explosives. Rajkumar Nagdawne (PW 563) vide letter had sent the articles collected from the scene of offence and other places to FSL for opinion.

546. In view of the abovesaid confessional statements of the appellants (A-10 and A-29), the confessional statements of the other co-accused persons, deposition of prosecution witnesses, as also the eyewitnesses viz. PWs 3 and 4 along with other witnesses duly examined by the prosecution, the charges framed against the appellants have been duly proved.

Criminal Appeal No. 365 of 2008

Mohd. Shoaib Mohammed Kasam Ghansar (A-9) v. State of Maharashtra

547. Ms Farhana Shah, learned counsel appeared for the appellant (A-9) and Mr Gopal Subramanium, learned Senior Counsel, duly assisted by Mr Mukul Gupta, learned Senior Counsel and Mr Satyakam, learned counsel for the respondent.

548. The present appeal is directed against the final judgment and order of conviction and sentence dated 14-9-2006 and 19-7-2007 respectively, whereby the appellant has been convicted and sentenced to death by the Designated Court under TADA for the Bombay Bomb Blasts Case, Greater Bombay in BBC No. 1 of 1993.

Charges

549. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-9). The relevant portion of the charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosives substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay and thereby committed offences punishable under Section 3(3) of the TADA Act, 1987 and Section 120-B of the Penal Code read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), 4(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

550. In addition to the abovesaid charge of conspiracy, the appellant (A-9) has also been charged for commission of the following offences:

At head secondly, the appellant (A-9) committed an offence punishable under Section 3(3) TADA by doing the following overt acts:

(i) participated in landing of arms and explosives at Shekhadi Coast, Raigad District along with co-conspirators on 3-2-1993 and 7-2-1993;

(ii) facilitated the escape of Tiger Memon (AA) by fetching his ticket and passport from the house of Mobina (A-96) and by obtaining his boarding pass on the morning of 12-3-1993, at Sahar Airport; and

(iii) actively participated in preparation of vehicle bombs in the night intervening 11-3-1993/12-3-1993 at Al-Hussaini Building.

At head thirdly, on 12-3-1993, the appellant (A-9), parked a scooter laden with explosives and fitted with a time device detonator in Zaveri Bazaar, which exploded killing 17 persons, injuring 57 persons and causing loss of property to the tune of Rs 1.20 crores and thereby committed an offence under Section 3(2)(i), 3(2)(ii) TADA.

At head fourthly, for the aforesaid act mentioned in charge thirdly, the appellant (A-9) committed an offence punishable under Section 302 IPC.

At head fifthly, for the aforesaid act mentioned in charge thirdly, the appellant (A-9), committed an offence punishable under Section 307 IPC by injuring 57 persons.

At head sixthly, the appellant (A-9), by causing the aforesaid explosion which resulted in grievous hurt to 9 persons committed an offence punishable under Section 326 IPC.

At head seventhly, the appellant (A-9), by causing the aforesaid explosion and voluntarily causing hurt to 48 persons committed an offence punishable under Section 324 IPC.

At head eighthly, the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs 1.2 crores committed an offence punishable under Section 435 IPC.

At head ninthly, the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs 1.2 crores committed an offence punishable under Section 436 IPC.

At head tenthly, the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head eleventhly, the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 4(b) of the Explosive Substances Act, 1908.

At head twelfthly, the appellant (A-9), in pursuance of the conspiracy and in contravention of the Rules made under Section 5 of the Explosives Act, 1884 without licence having possessed and used RDX, committed an offence punishable under Section 9-B(1)(b) of the said Act.

At head thirteenthly, the appellant (A-9), in pursuance of the said conspiracy, on 12-3-1993, in the afternoon, having abetted and knowingly facilitated terrorist act i.e the explosion at Centaur Hotel Juhu, Centaur Hotel at airport and Hotel Sea Rock at Bandra committed by the co-conspirator i.e Mohd. Mushtaq Moosa Tarani (A-44), Parvez Nazir Ahmed Shaikh (A-12) and Anwar Theba (AA) by planting explosive laden suitcases in the rooms of the said hotels respectively and yourself by accompanying them and A-10 in a Maruti van bearing No. MFC 1972 on their way for planting the said suitcases in the said hotels with an intent to commit the terrorist act, committed an offence punishable under Section 3(3) TADA.

At head fourteenthly, the appellant (A-9), for the aforesaid act mentioned in charge thirteenthly, committed an offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.

Conviction and Sentence

551. The Designated Judge found the appellant (A-9) guilty on all the aforesaid charges except the charge of participating in landing. The appellant (A-9) has been convicted and sentenced for the abovesaid charges as follows:

551.1 The appellant was found guilty for the offence of conspiracy for commission of such acts as found proved from charge firstly framed at the trial and punishable under Section 3(3) TADA and Section 120-B IPC read with the offences mentioned in the said charge and on the said count the appellant has been sentenced to suffer RI for life along with a fine of Rs 25,000. (charge firstly)

551.2 The appellant has been sentenced to RI for 5 years along with a fine of Rs 25,000 for the offence punishable under Section 3(3) TADA. (charge secondly)

551.3 The appellant has been sentenced to death along with a fine of Rs 25,000 for the offence punishable under Section 3(2)(i) TADA. (charge thirdly)

551.4 The appellant has been sentenced to death along with a fine of Rs 25,000 for the offence punishable under Section 302 IPC. (charge fourthly)

551.5 The appellant has been sentenced to RI for life along with a fine of Rs 50,000 for the offence punishable under Section 307 IPC. (charge fifthly)

551.6 The appellant has been sentenced to RI for 10 years along with a fine of Rs 50,000 for the offence punishable under Section 326 IPC. (charge sixthly)

551.7 The appellant has been sentenced to RI for 3 years for the offence punishable under Section 324 IPC. (charge seventhly)

551.8 The appellant has been sentenced to RI for 7 years along with a fine of Rs 50,000 for the offence punishable under Section 435 IPC. (charge eighthly)

551.9 The appellant has been sentenced to RI for 7 years along with a fine of Rs 50,000 for the offence punishable under Section 436 IPC. (charge ninthly)

551.10 The appellant has been sentenced to RI for 10 years along with a fine of Rs 25,000 for the offence punishable under Section 3 of the Explosive Substances Act, 1908. (charge tenthly)

551.11 The appellant has been sentenced to RI for 7 years along with a fine of Rs 25,000 for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908. (charge eleventhly)

551.12 The appellant has been sentenced to RI for 2 years for the offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884. (charge twelfthly)

551.13 The appellant has been sentenced to RI for 7 years along with a fine of Rs 25,000 for the offence punishable under Section 3(3) TADA. (charge thirteenthly)

551.14 The appellant has been sentenced to RI for 5 years along with a fine of Rs 25,000 for the offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fourteenthly)

Evidence

552. The evidence against the appellant is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimonies of prosecution witnesses; and

(iv) documentary evidence on record.

Conspiracy

553. As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer to the same once again.

Confessional statement of the appellant, Mohd. Shoaib Mohammed Kasam Ghansar (A-9)

554. The confessional statement of the appellant (A-9) under Section 15 TADA has been recorded on 19-4-1993 and 22-4-1993, by Shri P.K Jain, the then DCP, Zone X, Bombay. The following facts emerge from the said confessional statement:

(i) In the night of 11-3-1993, on being asked by Asgar Yusuf Mukadam (A-10), the appellant went to Sahar Airport along with him and got a boarding card issued for Tiger Memon.

(ii) The appellant (A-9) asked A-10 that “what to do if anyone catches me”, at this, A-10 answered to tell that “it (boarding card) belongs to my brother”.

(iii) Tiger Memon left India in the morning of 12-3-1993, at 4 a.m, and the appellant (A-9) and A-10 saw him leaving the airport for Dubai.

(iv) The appellant (A-9) was present at Al-Hussaini Building on the night of 11-3-1993 after dropping Tiger Memon at the airport, and was also present when RDX was being filled into the vehicles by other co-accused persons including Abdul Gani Ismail Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12), Mohd. Shafi (AA) and Anwar Theba (AA).

(v) The appellant (A-9), along with A-10 and A-12, disposed of six big plastic bags in a wastage van of BMC at Bandra Reclamation Road. These bags were handed over to them by Anwar Theba (AA) at Al-Hussaini Building.

(vi) On 12-3-1993, the appellant (A-9), accompanied A-10 and went to the residence of A-12 in order to pick him up and, thereafter, they went to Al-Hussaini Building in a Maruti van.

(vii) Three VIP Bags were collected by A-12 and A-10 from the garage at Al-Hussaini Building and then they along with the appellant (A-9) went to the residence of Anwar Theba (AA) to pick him up.

(viii) On 12-3-1993, the appellant (A-9) was present in the van at the time of insertion of timer pencil detonators in the black chemical (RDX) kept in the three VIP suitcases by Anwar Theba (AA).

(ix) On 12-3-1993, the appellant (A-9) was also present with A-10 in the van used for dropping the co-accused, namely, A-12, A-44 and Anwar Theba (AA) who went for planting bombs in Hotel Sea Rock, Hotel Centaur, Juhu and Hotel Centaur, Airport respectively.

(x) The appellant (A-9), thereafter, returned to Al-Hussaini Building with A-10. A-12, A-44 and Anwar Theba (AA) also returned to the said building after planting the bombs at the targets which exploded later. He noticed that three new scooters were parked at Al-Hussaini compound. He was present when Mustaq (A-44) left with one of the new scooters.

(xi) On the very same day i.e 12-3-1993, on the instruction of A-10, the appellant (A-9) planted a scooter laden with RDX in front of a jewellery shop at Zaveri Bazaar as per the instructions of A-10. Anwar Theba (AA) had inserted timer pencil detonators in the black chemical (RDX) filled in dickey of the scooter. The appellant (A-9) had the knowledge that the scooter was carrying bomb as told to him by A-10.

(xii) After planting the scooter laden with RDX, the appellant (A-9) went to a masjid and begged for forgiveness for his sins. He also threw the keys of the scooter in a drain near Bus Stop No. 4 at Mohd. Ali Road.

555. From a perusal of the entire confession, it is established that the appellant was fully aware and conscious of the overt acts committed by him. The abovestated facts are established from the admission of his guilt that after planting the bomb at Zaveri Bazaar, he begged for forgiveness for his sins from “Allah” (the Almighty God) and that even at the time of getting the boarding pass of Tiger Memon, he was conscious and cautious that he was facilitating, aiding and abetting a terrorist in fleeing from the country, and accordingly, the appellant enquired from A-10 at the airport as to “what will happen if anyone catches him”. The guilt of the appellant (A-9) is proved from his confession and it is established that he knew that his actions were wrong and illegal. The appellant consciously joined the conspiracy and committed overt acts in furtherance of the conspiracy. He was well aware of the consequences of his actions and the actions of other co-conspirators.

Confessional statements of co-accused

556. Apart from his own confession, the involvement of the appellant (A-9) has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant are summarised hereinbelow.

Confessional statement of Asgar Yusuf Mukadam (A-10)

557. The confessional statement of A-10 under Section 15 TADA has been recorded on 20-4-1993 and 23-4-1993 (1800 hrs), by Shri K.L Bishnoi, the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-9):

(i) In the night of 11-3-1993, the appellant booked the luggage of Tiger Memon and obtained his boarding card at the airport for his departure to Dubai.

(ii) The appellant (A-9), accompanied by A-10 and A-12, disposed of the plastic bags in a wastage van of BMC which contained the empty boxes of explosives.

(iii) The appellant (A-9), accompanied by A-10 and A-12, picked up three VIP bags loaded with explosives from the garage at Al-Hussaini Building and took them to the residence of Anwar Theba (AA) where Anwar fitted the detonators in these suitcases and thereafter, the bags were taken away by A-12, A-44 and Anwar Theba (AA) to Hotel Sea Rock, Hotel Centaur, Juhu and Hotel Centaur, Airport respectively.

(iv) The appellant (A-9), on being asked by A-10, drove the scooter laden with explosives on the instructions of Anwar Theba (AA) and parked it at a crowded place in Zaveri Bazaar which later exploded killing 17 persons and injuring 57 others.

Confessional statement of Abdul Gani Ismail Turk (A-11)

558. The confessional statement of A-11 under Section 15 TADA has been recorded on 15-4-1993 and 18-4-1993 by Shri P.K Jain, the then DCP, Zone III, Bombay. A-11, in his confession, has stated that the appellant (A-9) was present at Al-Hussaini Building in the night of 11-3-1993 along with other co-accused, namely, Bashir Ahmed Usman Gani Khairulla (A-13), Parvez Nazir Ahmed Shaikh (A-12), Mohd. Shafi, Anwar Theba (AA), Javed Chikna (AA) and he filled the chemical (black soap) in the vehicles which were to be planted as bombs. He further stated as follows:

“… After sometime Shafi, Anwar, Javed Chikna, Bashir, Parvez, Shoaib and 10/12 boys assembled there. All people came in the garage of Al-Hussaini Building and all of them filled chemical alias black soap in a number of vehicles….”

Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

559. The confessional statement of A-12 under Section 15 TADA has been recorded on 18-4-1993 and 21-4-1993 (0650 hrs), by Shri P.K Jain, the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-9):

(i) The appellant (A-9) was present at Al-Hussaini Building on the night of 11-3-1993 along with other co-conspirators when the work of filling the black chemical (RDX) into the vehicles to be planted as bombs in Bombay was being done. The said black chemical was brought from Shekhadi which was landed on 3-2-1993.

(ii) The chemical was packed in cardboard boxes and pieces of iron were also added to it.

(iii) In the morning of 12-3-1993, on the instructions of Anwar Theba (AA), the appellant (A-9), along with A-10 and A-12, threw 5-6 plastic bags in a wastage van of BMC at Bandra which contained the empty cardboard boxes of the explosives.

(iv) A-12 further stated as follows:

“And then at about 10.30 o'clock, Asgar came back to my house with Shoaib in the same red-coloured van and we three came at Al-Hussaini. From there, we reached the house of Anwar taking the three suitcases (big briefcase) which were kept in the garage, by Maruti van, where we met Anwar and Mushtaq whose hair was curly. They both came and sat in the car, before starting the car Anwar opened the bag and pierced the article just like pencil into the chemical and closed the bags.”

(v) The appellant (A-9), along with A-10, came to the house of A-12 on 13-3-1993 and discussed about the blasts that had occurred on 12-3-1993.

Confessional statement of Imtiyaz Yunusmiyan Ghavate (A-15)

560. The confessional statement of A-15 under Section 15 TADA has been recorded on 7-5-1993 and 9-5-1993 (1330 hrs), by Shri K.L Bishnoi (PW 193), the then DCP, Zone III, Bombay. The following facts emerge from the confessional statement of A-15:

(i) The appellant (A-9) was seated in the maroon-coloured Maruti van along with A-10 and A-12 on 12-3-1993 and all of them drove to the house of Anwar Theba (AA) to collect the three suitcases.

(ii) On 12-3-1993, A-9, along with A-10, came to Al-Hussaini Building in a Maruti van.

(iii) In the presence of the appellant (A-9), Anwar Theba (AA) inserted timer pencil detonators in the dickey of scooters laden with explosives which were later planted as bombs.

(iv) The appellant drove a scooter laden with explosives and fitted with pencil detonators on 12-3-1993.

Confessional statement of Mohd. Mushtaq Moosa Tarani (A-44)

561. The confessional statement of A-44 under Section 15 TADA has been recorded on 26-5-1993 and 22-5-1993 (1000 hrs), by Shri K.L Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confessional statement, he stated that on 12-3-1993, A-9 and A-15 came to the residence of Anwar Theba (AA) in a maroon-coloured car driven by A-10.

562. The aforesaid confessional statements of co-accused persons viz. A-10, A-11, A-12, A-15 and A-44 duly corroborate the confessional statement of A-9 in all material aspects. From the above, it is established that:

(i) The appellant (A-9) was actively involved in the conspiracy;

(ii) The appellant was present at Al-Hussaini Building in the night of 11-3-1993 and filled RDX in vehicles;

(iii) The appellant went to various places with A-10 and A-12 and also picked up three suitcases filled with RDX from the garage of Al-Hussaini Building in which detonators were inserted by Anwar Theba (AA) in order to plant the same at various places in the city;

(iv) The appellant was travelling in the car in which A-10, A-12, A-44 and Anwar Theba (AA) were also present;

(v) The appellant participated in various conspiratorial acts like aiding, abetting and in fleeing of Tiger Memon out of the country;

(vi) The appellant was fully aware that the aforementioned accused persons were carrying suitcase bombs for planting the same at Hotel Sea Rock, Hotel Centaur, Juhu and at Hotel Centaur, Airport;

(vii) The appellant parked the scooter at the junction of Sheikh Memon Street and Mirza Street at Zaveri Bazaar which exploded at about 3.05 p.m killing 17 persons and injuring 57 others;

(viii) After parking the scooter, the appellant (A-9) threw the keys of the scooter into a gutter to avoid detection and went to a mosque to beg forgiveness for his sins.

563. It is also clear that the confessions made by co-accused persons are truthful and voluntary and were made without any coercion. All safeguards enumerated under Section 15 TADA and the Rules framed thereunder have been duly complied with while recording the confessions of the appellants.

Retraction statements

564. Ms Farhana Shah, learned counsel for the appellant (A-9) contended that the confessional statement of the appellant as well as of co-accused persons relied upon by the prosecution against the appellant (A-9) were retracted subsequently, and therefore, it is not safe to base the conviction on the said confessional statements under Section 15 TADA. Since the very same objection raised in the connected appeals was considered and rejected, we are not once again repeating the same. The said conclusion is applicable to this appeal also.

Depositions of prosecution witnesses

565. The prosecution has relied upon the evidence of several prosecution witnesses to establish the involvement of the appellant (A-9) in the conspiracy. The relevant facts emerging from the deposition of witnesses incriminating the appellant have been enumerated below:

Eyewitnesses

Deposition of Badrinath Bishansingh Sharma (PW 29)

566. (i) PW 29 is a hawker at Zaveri Bazaar. He is an eyewitness to the blast. He testified that on 12-3-1993, he saw a person trying to park a scooter in front of the shop of Narayandas Jewellers at Zaveri Bazaar which fell down. PW 29 offered to help him in lifting the scooter but the appellant (A-9) refused to take any help.

(ii) He remembered the colour of the scooter as grey and noted its number on a cigarette pack. The said packet was handed over to the police on 18-3-1993 which was seized by seizure panchnama, Ext. 1878 proved by Nisar Ahmed Kankarbhai Shaikh (PW 550). PW 29 also identified the said cigarette packet.

(iii) He also described about the site of the blast and stated that several persons were killed and injured in the blast including himself who got injured in his right leg.

(iv) PW 29 identified the appellant (A-9) in the identification parade held at Sacred Heart School, Worli on 25-3-1993 as the person who parked the said scooter on 12-3-1993 at Zaveri Bazaar.

(v) PW 29 again identified the appellant (A-9) on 13-5-1993 in the identification parade held at the office of CID in Crawford Market.

A perusal of the deposition establishes the fact that the appellant (A-9) parked the scooter laden with explosives at Zaveri Bazaar.

567. Ms Farhana Shah, learned counsel for the appellant (A-9) contended that PW 29 is an unreliable witness and his deposition should be discarded since he did not disclose the number of the scooter or inform anyone until he had seen the appellant even after five days of the blasts on 12-3-1993. It is relevant to point out that PW 29 was also injured in the said blast and thereafter, he went to his house. The police had cordoned off the area. On the sixth day after the blasts, PW 29 came to the market and informed the police that he could identify the person who had parked the scooter at Zaveri Bazaar. PW 29 actually identified the appellant in the test identification parade conducted on 25-3-1993 and 13-5-1993 as the person who parked the scooter at Zaveri Bazaar.

Deposition of Amit Champalal Acharya (PW 36)

568. (i) PW 36, who is an estate agent, is an eyewitness to the incident.

(ii) When he was standing in front of the shop of Narayandas Jewellers on the fateful day, a scooterist (A-9), lost his balance while parking his scooter in front of the shop and fell down. One passer-by tried to help him but he refused angrily.

(iii) He further testified that the scooterist (A-9) left hurriedly after parking the scooter. This further shows that he was aware that there was a bomb inside the scooter which could explode anytime.

(iv) He identified the appellant (A-9) in the identification parade held on 13-5-1993 at the office of CID in Crawford Market.

569. Ms Farhana Shah, learned counsel contended on behalf of the appellant (A-9) that the deposition of this witness should be discarded since PW 36 failed to identify the appellant in the court when he was given the opportunity twice.

570. The prosecution submits that non-identification of A-9 in the court would not make the deposition of PW 36 unreliable as he did identify the appellant (A-9) in the identification parade held on 13-5-1993. The identification parade took place shortly after the blasts but the identification in court took place only on 12-1-1996, which is almost after three years, thus it is possible that due to passage of time PW 36 was unable to identify the appellant before the court. The prosecution further submits that this does not impeach the deposition made by PW 36 since his evidence is sufficiently corroborated by the deposition of PW 29 in all material aspects.

571. The prosecution has brought to our notice that the identification parade dated 25-3-1993 was conducted at Sacred Heart High School by Ram S. Bhosale (PW 460), who conducted the parade in compliance with the provisions of the Code. PW 460 also recognised Ext. 1471 i.e memorandum panchnama prepared during the parade. PW 460 further stated that no police official was present in the parade room at the time of the parade and that the appellant (A-9) was brought into the parade room wearing a cover (chadar) so as not to reveal his identity.

Deposition of Moreshwar Gopal Thakur (PW 469)

572. The Special Executive Magistrate (PW 469) conducted the identification parade in respect of A-9. Ext. 1510 is the memorandum of the TIP dated 13-5-1993. The following information is available in the said memorandum:

(i) TIP memorandum records that a TIP was conducted by SEM Shri Thakur (PW 460) on 13-5-1993.

(ii) The first witness, PW 29 identified the appellant as the person who parked the scooter at Zaveri Bazaar on 12-3-1993.

(iii) The second witness, PW 36 also identified the appellant as the person who parked the scooter at Zaveri Bazaar on 12-3-1993.

Evidence with regard to recovery of the keys of the scooter

Deposition of Narsingh Tukaram Sherkhan (PW 556)

573. PW 556, a police officer, recorded the disclosure statement made by the appellant on 21-3-1993 to the following effect:

The appellant (A-9) said to the officer:

“Come with me, I will show you the place, where I had thrown the keys of the scooter, after I parked the said Bajaj scooter laden with explosives.”

The said statement was recorded vide disclosure memo, Ext. 199 in the presence of panch witnesses. Pursuant to the said disclosure, the appellant (A-9) led the police party and the same was recorded in the panchnama (Ext. 200) to the following effect:

“Upon making the statement by the accused in pursuance of the aforesaid panchnama, we the panchas, police party and the accused Mohd. Shoaib Mohammed Kasam Ghansar, Muslim, aged 30 years sat in the police jeep Number MH 01 M 364 and as per the instruction of the accused, the jeep driver of P.N 1938 Mahim Police Station drove the jeep by L.J Road, Tilak Bridge, Dadar T.T, Ambedkar Road, Ibrahim Rahimatulla Road, Bhendi Bazaar and after the jeep reached at Johar Chowk via Mohd. Ali Road the accused asked the jeep driver to halt the vehicle (jeep) and thereupon the jeep driver halted the jeep. Thereafter the accused person, we the panchas and the police party got down from the jeep. Thereafter, as per the instruction of the accused, we the panchas, police party crossed Mohd. Ali Road and came to the open space in front of the office of ‘Time Travel & Tour’ on the western side footpath and on coming at the said place, pointed at a gutter on Mohd. Ali Road, situated on the opposite side of ‘Time Travel & Tour’ and the accused also pointed that the key was thrown therein. The said gutter is at a distance of 10 ft from the said office. On the said gutter there are two cement lids and below the same there is a cement grille. In the presence of us, the panchas, distance was measured from the said gutter which distance from the electric pole MHL 53 is 12 ft.

The accused pushed aside the cement lid on the said gutter and dipped his hand in the said gutter and removed from below described key from the silt of the gutter when the police in the presence of us, the panchas, observed the key removed by the accused, the description of the said key is as follows. There are two keys in one steel ring and on one side of both the said keys, ‘Bajaj’ has been inscribed in English and below the same ‘2-112’ has been inscribed and on the another side the letters K. V. P. has been inscribed in English and the same were smeared with earth.”

It is brought to our notice by the prosecution that these were the keys of the scooter used in the blast at Zaveri Bazaar and this recovery, therefore, also established the fact that the appellant (A-9) had parked the scooter at Zaveri Bazaar on 12-3-1993 and threw the keys in the gutter after parking the same. The prosecution submitted that the appellant further led the police party to recover his passport and driving licence.

Deposition of Kamalakar Kashinath Deo (PW 51)

574. The evidence of PW 556 is further corroborated with the evidence of panch witness Kamalakar Kashinath Deo (PW 51) wherein he stated that the appellant (A-9) had made a voluntary statement in his presence on 21-3-1993 and disclosed the location of the keys of the scooter.

575. It has been contended on behalf of the appellant that the deposition of PW 51 should not be relied upon since the gutter from where the keys were recovered had a manhole, and therefore, the investigating agency has planted the keys. To this, the prosecution pointed out that PW 51 is a panch witness and has identified the appellant as the person who offered to take the police party to the place where the keys of the scooter had been thrown by him and were in fact recovered from the said gutter after duly opening the manhole. It is further pointed out that PW 51 withstood the rigorous cross-examination and is a credible witness.

576. It has also been contended on behalf of the appellant that the evidence of PW 556 is unreliable due to various contradictions. It is pointed out by the prosecution that there is no contradiction in the deposition of PW 556 and on going through the same, we feel that the contradictions pointed out on behalf of the appellant (A-9) were minor contradictions and they do not go to the root of the matter so as to discredit the testimony of the witness.

Evidence with regard to purchase of scooter

577. The prosecution pointed out that the scooter which was planted by the appellant (A-9) along with two other scooters, was purchased by Munaf Halari (AA), who was a close friend of Tiger Memon. The said purchase was done in the following manner:

(i) Munaf Halari approached Abdul Sattar (PW 82) for the purchase of these scooters under an assumed name.

(ii) PW 82 took Munaf Halari to Govind Baria (PW 452) and PW 452 in turn directed them to Asgar Ali Masalewala (PW 299).

(iii) Munaf Halari paid an amount of Rs 70,000 in cash to PW 299 and took the delivery of two Bajaj scooters on 10-3-1993, and the third scooter was delivered to Munaf Halari on the following day.

(iv) PW 299 is a sub-agent of PW 298 who in turn had purchased the scooters from M/s Mohan Automobiles as deposed by Shriram Jitram Vasan (PW 81).

(v) PW 81 stated that he purchased the scooter from Ajit Vanjari (PW 651) of M/s Vasan Automobiles.

Deposition of Sayeed Abdul Sattar (PW 82)

578. PW 82, who was an employee of Munaf Halari (AA), stated that two new scooters were purchased on 11-3-1993 from the garage of PW 299 in Chor Bazaar, Bombay and one of them was of blue colour. The delivery of the third scooter was given on the next day. He identified two out of the three scooters purchased, in court.

Deposition of Govind Bechan Baria (PW 452)

579. (i) PW 452 worked at a petrol pump where Munaf Halari used to park his vehicle and that is how he knew Munaf Halari.

(ii) PW 452 deposed that Munaf Halari, along with two other persons, approached him to purchase new scooters on 10-3-1993 and that the witness referred them to Asgar Ali Masalewala (PW 299).

Deposition of Asgar Ali Tahir Ali Masalewala (PW 299)

580. (i) PW 299 carried on the business of sale/purchase of scooters.

(ii) On 10-3-1993, Akhtar came to PW 299 with a request to purchase scooters. PW 299 obtained the delivery of scooters from a dealer viz. Nisha Sales and gave the scooters to Akhtar and his two companions.

(iii) The request for purchase of a third scooter was made on 10-3-1993. On 11-3-1993, he obtained the third scooter from the abovesaid dealer and passed it on to Akhtar and his two companions.

Deposition of Shriram Jitram Vasan (PW 81)

581. (i) PW 81 is a scooter sub-dealer (he used to purchase scooters from Vasan Auto and sell the same to customers) and prepares scooter purchase challans in the name of Mohan Auto.

(ii) PW 81 sold 22 scooters to Nisha Sales in the early days of 1993 three of which were of stone, blue and cosmic colours respectively.

(iii) PW 81 identified the remaining two of the three scooters sold to Nisha Sales in court.

Deposition of Ajit Vitthalrao Vanjari (PW 651)

582. (i) PW 651 was an employee at Vasan Auto.

(ii) He recognised the challans issued in respect of purchase of Bajaj Scooters for delivery to M/s Mohan Auto in 1993.

583. The prosecution pointed out that the above depositions and the documents clearly establish the chain of purchase of scooters used in the blasts on 12-3-1993.

Investigation, recoveries and FSL reports

584. The place of incident i.e where the blast took place at Zaveri Bazaar was inspected by Narayan Yedu Rajguru (PW 554) vide panchnama, Ext. 1908. The panchnama described the effect of the explosion and vide this panchnama debris and other articles were seized by the IO from the place of occurrence. PW 554 also took samples from the place of occurrence in the presence of FSL experts vide panchnama, Ext. 1909.

Deposition of Narayan Yedu Rajguru (PW 554)

585. In his deposition dated 29-12-1999, he deposed that:

(i) He reached the site within 15 minutes of the blast.

(ii) He prepared a panchnama, Ext. 1908 in the presence of panch witnesses and seized the articles/blast debris, etc.

(iii) He also proved this panchnama in court.

(iv) He deposed that the forensic expert had also collected the samples from the blast site on 13-3-1993 and a panchnama (Ext. 1909) was prepared in the presence of panch witnesses.

(v) The panchnama was proved by the witness.

(vi) The said panchnama records the burnt scooter at the blast site.

586. The seized articles were sent to FSL for examination vide Exts. 1910 and 1911. FSL reports pertaining to the examination of these samples are Exts. 1883, 1884 and 1885 which show the presence of residual high explosive RDX in the samples forwarded for examination.

Evidence with regard to injured victims and the relatives of the deceased

587. Nisar Ahmed Kankarbhai Shaikh (PW 550) has proved the deaths and injuries caused to various persons due to the said explosion. The following injured witnesses have also deposed regarding the injuries received by them on account of explosion at Zaveri Bazaar:

(i) Ramchandra Raghunath Deshmukh (PW 394) was injured by a glass splinter that hit him on his back, tearing his shirt and causing a wound.

(ii) Shivari B. Garg (PW 424) was also injured by 15 to 20 glass splinters which struck him with great force causing multiple bleeding injuries near his left eye, left side of forehead, left hand and chest.

(iii) Arjun Padurang Devde (PW 578) received injuries on the left side of his waist. He had to remain in the hospital for 8-9 days as the injuries were sustained due to some foreign particles which had pierced into his waist. It is pertinent to mention that metallic pieces (Article 485) were extracted from his body which were seized by Ashok Ganpat Dabhade (PW 558) vide panchnama, Ext. 1925.

588. The following doctors have proved the injury certificates (Exts. 2364 and 2355) with regard to PWs 394 and 424:

(i) Dr Durgaprasad Mahavir Vyas (PW 634) and;

(ii) Dr Vijaykumar Purshotam Ved (PW 637).

589. The following witnesses have proved the ADR/inquest panchnamas in respect of the victims who died in the explosion:

(i) Sudhir Prabhakar Aspat (PW 569) and;

(ii) Feroz Rajahamed Patel (PW 576) and PW 558.

590. The following witnesses have proved the death of their relatives in the explosion:

(i) Vinayak Dattatray Chavan (PW 395) deposed with regard to the death of his sister, brother-in-law and nephew, who died due to injuries sustained in the blast that took place at Zaveri Bazaar on 12-3-1993 and;

(ii) Radheshyam Mangalchand Poddar (PW 396) deposed about the death of his son due to the blast that took place at Zaveri Bazaar.

591. The prosecution has also established the damage caused to various properties due to the bomb blast at Zaveri Bazaar from the panchnama, Ext. 1908 as also by the deposition of PW 554. It also stands established that the damage was due to the explosion caused with the help of RDX explosives.

592. In view of the abovesaid confessional statement of the appellant (A-9), the confessional statements of other co-accused persons as also the eyewitnesses PWs 29 and 36, along with other witnesses duly examined by the prosecution, the contentions raised by the learned counsel for the appellant regarding his participation in the conspiracy, landing, conspiratorial meetings as well as the filling of RDX during the intervening night, are meritless as the charges framed against the appellant (A-9) have been duly proved.

Criminal Appeals Nos. 864-65 of 2008

Abdul Gani Ismail Turk (A-11) v. State of Maharashtra

593. Ms Farhana Shah, learned counsel appeared for the appellant and Mr Gopal Subramanium, learned Senior Counsel, duly assisted by Mr Mukul Gupta, learned Senior Counsel and Mr Satyakam, learned counsel for the respondent.

594. These appeals have been filed against the final judgment and order of conviction and sentence dated 19-9-2006 and 18-7-2007 respectively, whereby the appellant has been convicted and sentenced to death by the Designated Court under TADA for the Bombay Bomb Blast Cases, Greater Bombay in BBC No. 1 of 1993.

Charges

595. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-11). The relevant portion of the charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay and thereby committed offences punishable under Section 3(3) of the TADA Act, 1987 and Section 120-B of the Penal Code read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), 4(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

596. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on other counts which are summarised as under:

At head secondly: The accused committed an offence punishable under Section 3(3) of the TADA Act, 1987 by committing the following overt acts:

(a) He participated in the landing of arms and explosives at Shekhadi in February 1993.

(b) He attended meetings at the house of Babloo and Mobina to make plans for committing terrorist acts.

(c) He received training in handling of arms, explosives at Villages Andheri and Borghat.

(d) He participated in preparation of vehicle bombs in the night of 11-3-1993/12-3-1993.

At head thirdly: He planted the explosive laden Jeep No. MP 09 S 0070 in front of Udipi Hotel in Century Bazaar, Worli on 12-3-1993, which exploded causing death of 88 persons, injuries to 159 persons and loss of properties worth Rs 2.41 crores and, thereby, committed an offence punishable under Sections 3(2)(i), 3(2)(ii) TADA.

At head fourthly: By causing the abovementioned explosion which resulted into death of 88 persons, he committed an offence punishable under Section 302 IPC.

At head fifthly: By causing the abovementioned explosion which resulted into injuries to 159 persons, he committed an offence punishable under Section 307 IPC.

At head sixthly: By causing the aforesaid explosion which resulted into grievous injuries to 53 persons, he committed an offence punishable under Section 326 IPC.

At head seventhly: By causing the abovesaid explosion which resulted into injuries to 106 persons, he committed an offence punishable under Section 324 IPC.

At head eighthly: By causing the aforesaid explosion which resulted into damage to properties worth Rs 2.5 crores, he committed an offence punishable under Section 435 IPC.

At head ninthly: By causing the aforesaid explosion, he also committed an offence punishable under Section 436 IPC.

At head tenthly: By causing the aforesaid explosion which resulted into death, injuries and damage to the properties, he committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head eleventhly: By causing the aforesaid explosions by possessing explosive substances, he committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908.

At head twelfthly: By possessing the explosives without valid licence that caused the aforesaid explosions, he committed an offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884.

At head thirteenthly: By causing the aforesaid explosion which resulted into damage to the public properties, he committed an offence punishable under Section 4 of the Prevention of Damage to Public Property Act, 1984.

Conviction and Sentence

597. On all the aforesaid charges the appellant was found guilty except for charges (b) and (c) at head secondly by the Designated Judge. The appellant (A-11) has been convicted and sentenced as under:

597.1 to suffer punishment of death along with a fine of Rs 25,000 under Section 3(3) TADA and Section 120-B IPC read with the offences mentioned in the said charge. (charge firstly)

597.2 to suffer RI for 10 years along with a fine of Rs 50,000, in default, to further undergo RI for 1 year for the offence punishable under Section 3(3) TADA. (charge secondly)

597.3 to suffer punishment of death along with a fine of Rs 25,000 for the offence punishable under Section 3(2)(i) TADA. (charge thirdly)

597.4 to suffer punishment of death along with a fine of Rs 25,000 for the offence punishable under Section 302 IPC. (charge fourthly)

597.5 to suffer RI for life along with a fine of Rs 25,000, in default, to further undergo RI for six months for the offence punishable under Section 307 IPC. (charge fifthly)

597.6 to suffer RI for 14 years along with a fine of Rs 25,000, in default, to further undergo RI for six months for the offence punishable under Section 326 IPC. (charge sixthly)

597.7 to suffer RI for 2 years for the offence punishable under Section 435 IPC. (charge eighthly)

597.8 to suffer RI for 7 years along with a fine of Rs 25,000, in default, to further undergo RI for six months for the offence punishable under Section 436 IPC. (charge ninthly)

597.9 to suffer RI for 10 years along with a fine of Rs 25,000, in default, to further undergo RI for six months for the offence punishable under Section 3 of the Explosive Substances Act, 1908. (charge tenthly)

597.10 to suffer RI for 7 years along with a fine of Rs 25,000, in default, to further undergo RI for six months for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908. (charge eleventhly)

597.11 to suffer RI for 2 years for the offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884. (charge twelfthly)

597.12 to suffer RI for 5 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months for the offence punishable under Section 4 of the Prevention of Damage to Public Property Act, 1984. (charge thirteenthly)

Evidence

598. The evidence against the appellant (A-11) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimonies of prosecution witnesses including eyewitnesses; and

(iv) documentary evidence.

Conspiracy

599. As mentioned above, a common charge of conspiracy was framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done the illegal act, the agreement may be proved by necessary implication. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer to the same once again.

Confessional statement of the appellant, Abdul Gani Ismail Turk (A-11)

600. The confessional statement of the appellant (A-11) under Section 15 TADA has been recorded on 15-4-1993, by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. The following facts emerge from the confession of the appellant:

(i) He knew that Tiger was a smuggler but he still joined him and used to perform the work of delivery/bringing of hawala money.

(ii) He knew that Asgar Yusuf Mukadam (A-10), Imtiyaz Yunus Miyan Ghavate (A-15), Mohd. Rafiq alias Rafiq Madi Musa Biyariwala (A-46), Anwar (AA), Parvez Nazir Ahmed Shaikh (A-12) and the fact that they were working with Tiger.

(iii) He used to bring money from Mulchand Sampatraj Shah alias Choksi (A-97) of Zaveri Bazaar.

(iv) He took part in landings of silver at Mhasla, Shekhadi where jeeps of Raju Laxmichand Jain alias Raju Kodi (A-26) were used for transportation.

(v) On 27th/28th January, on being called by Shafi, he visited Al-Hussaini Building, where Tiger, Anwar Theba (AA), Mohd. Rafiq alias Rafiq Madi Musa Biyariwala (A-46), Imtiyaz Yunus Miyan Ghavate (A-15), Parvez Nazir Ahmed Shaikh (A-12), Yakub Abdul Razak Memon (A-1) and his wife were also present.

(vi) On 27-1-1993/28-1-1993, he left for Mhasla along with Tiger, Anwar Theba (AA), Imtiyaz Yunus Miyan Ghavate (A-15), Shafi, Mohd. Rafiq alias Rafiq Madi Musa Biyariwala (A-46) and Parvez Nazir Ahmed Shaikh (A-12) and from there he went to Shekhadi.

(vii) As there was no landing for 2-3 days, he stayed at Hotel Vaisava along with the co-accused.

(viii) He stayed along with others at Hotel Big Splash, Alibaugh on 31-1-1993 where other gang members also joined them.

(ix) On 2-2-1993/3-2-1993, late at night, he along with co-accused Imtiyaz Yunus Miyan Ghavate (A-15) and other 4-5 persons went to Waghani Tower by jeep.

(x) He had seen 70-80 boxes of black-coloured chemical, 250-500 hand grenades, 15-20 big pistols, 60-70 big rifles, electronic wires, magazines and rounds when the boxes were brought to the tower by Tiger Memon and his men. Those items were also checked by Tiger.

(xi) All the smuggled contraband was loaded in the jeeps, tempo and van after their packing in the presence of the appellant (A-11).

(xii) The jeep of Raju Kodi (A-26) was also used for transportation of arms and ammunition and RDX explosives.

(xiii) He also brought one such jeep of Raju Kodi to Bombay via Khandala and left it at Anwar's residence as per Tiger's instructions and dropped the other co-accused at Bandra before leaving the vehicle.

(xiv) He came to know about the object of smuggling of arms and ammunition from the conversation of the co-accused. He knew that this was being done to take revenge for the suffering of Muslims in the riots.

(xv) He visited A-15's residence and as per the instructions of Anwar Theba (AA), he brought the jeep to the residence of Amjad and handed over three bags containing wire bundles and bullets to him. He (A-11) parked the jeep there.

(xvi) He visited Tiger Memon's (AA) house after 4-2-1993 and accompanied him to the house of Anwar Theba (AA) and met Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28), who had a tempo with them.

(xvii) He received Rs 1 lakh from Tiger Memon to be paid to Dawood alias Dawood Taklya Mohammed Phanse alias Phanasmiyan (A-14). He also received instructions to bring “black soap” and to go along with Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28) using a tempo available with them. He knew that the “black soap” was the same material which was brought at Waghani Tower on 3-2-1993.

(xviii) He left for Mhasla along with Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28) for the said purpose.

(xix) He reached Mhasla in the morning and as instructed, contacted Dawood Taklya (A-14) and paid Rs 1 lakh to him.

(xx) He loaded 59 bags in the tempo and left for Bombay. On the way, he met Tiger Memon.

(xxi) On 7-3-1993, he accompanied Tiger and Shafi (AA) to Bandra and then went to the residence of Mobina (A-96) as per Tiger's instructions.

(xxii) At Mobina's place, he gave his scooter to Shafi. Other persons also went to the residence of Mobina.

(xxiii) On 8-3-1993, he accompanied Tiger Memon to Mobina's residence.

(xxiv) He accompanied Shafi to Jogeshwari in a Commander jeep. He had seen Shafi with a bag in which 2 rifles, 4-6 hand grenades and some rounds were kept.

(xxv) He then accompanied Shafi to the residence of Mobina (A-96).

(xxvi) He went to Mahad in a jeep along with three other co-accused, out of them, one was Bashir Ahmed Usman Gani Khairulla (A-13) and waited at Hotel Vaisava for Tiger as per his instructions. Tiger Memon, Javed Chikna (AA), Sharif Abdul Gafoor Parkar alias Dadabhai (A-17), Sardar Shawali Khan (A-54) and three other persons came there after sometime.

(xxvii) In his presence, Tiger threw hand grenades and imparted training in firing to the co-accused at Andheri.

(xxviii) He accompanied the co-accused to Andheri and waited till they did firing practice.

(xxix) He also accompanied the co-accused to Bombay and dropped them at Mahim slope. The jeep was parked at Shahnaz Hotel and keys of the jeep were given to Tiger's parents.

(xxx) He knew about the planting of suitcases in the hotels and the filling of RDX by the co-accused.

(xxxi) He knew that a Maruti van was used for carrying RDX filled suitcases for planting the same in hotels. This van was also used for throwing of empty gunny bags and boxes, etc. immediately after they were emptied.

(xxxii) He participated in the filling of RDX in the vehicles along with the other co-accused persons. One jeep, two Maruti cars, one Maruti van, one Ambassador car and five scooters were filled with RDX under the supervision of Tiger Memon (AA) and Javed Chikna (AA).

(xxxiii) He accompanied Shafi to his residence and they brought two new scooters to Al-Hussaini Building. He again brought one more scooter with Shafi.

(xxxiv) Timer pencils were inserted by the co-accused Anwar Theba (AA) and 2 others in the RDX which was filled in the vehicles in his presence.

(xxxv) He planted the RDX laden Commander jeep at Passport Office, Worli, Bombay.

(xxxvi) He had knowledge about the smuggling of chemicals and weapons for taking revenge and also about the consequences on account of use of RDX.

601. From the above confession, it is clear that the appellant (A-11) was a close associate of Tiger Memon. He had full knowledge of all the facets of the conspiracy and played an active part in the landing and transportation of RDX and other contrabands and making of suitcase and vehicle bombs. He planted a jeep containing a bomb at Century Bazaar. He was involved in all the stages of conspiratorial design. It is thus established from his own confession that he played an important and active role in the conspiracy.

602. Ms Farhana Shah, learned counsel for the appellant (A-11) contended that a perusal of his confession shows that he was only an employee (driver) of Tiger Memon and was used only for transportation of goods and had no role in the conspiracy. It was submitted by the prosecution that he (A-11) knew that Tiger Memon was a criminal and he also used to take delivery on behalf of Tiger Memon in the hawala transactions and also participated in the smuggling of silver ingots. On 27th/28th January, he went to take delivery of arms and ammunition and explosives along with others accused. When the landing was delayed by 2-3 days, he stayed in a hotel along with others. The appellant (A-11) has admitted in his confession that he had seen 70-80 boxes of black-coloured chemical, 250-500 hand grenades, 15-20 big pistols, 60-70 big rifles, electronic wires, magazines and rounds at the time of landing that took place on 2-3-1993/3-3-1993 at Waghani Tower. From the confessional statement of the appellant (A-11), it can be concluded that he was an integral part of the conspiracy and was a very close associate of Tiger Memon and not merely an innocent servant who knew nothing about the actions of his master. It is also evident from the fact that in his confessional statement, he has stated that he knew the object of the smuggling of arms and ammunition, which in his words was “to take revenge of the suffering of Muslims”.

603. It has also been contended on behalf of the appellant that Section 15 TADA has not been complied with and the warning required to be given was not given. However, a perusal of the same shows that the officer had asked the appellant (A-11) if he was aware that the confession to be made by him can be used as evidence against him in the court. The accused had answered the aforesaid question in affirmative.

604. The questions that were asked to A-11 while recording the first part of the confession were:

“Q. Whether he has any complaint against anybody?

Ans. No.

Q. Whether anyone has put any kind of pressure on you to make this confessional statement?

Ans. No.

Q. Whether you have been given any kind of allurement or threat?

Ans. No.

Q. Do you want to make your confessional statement/statement willingly?

Ans. Yes.

Q. Whether you understand that you are not bound to make this statement/confessional statement?

Ans. Yes.

Q. Whether you understand that it may be produced in the court as an evidence against you in case you confess?

Ans. Yes.

Q. After this you will be kept at place other than the custody of Tapasi Officer. Whether you know this?

Ans. Yes.

Q. Do you still desire to make a confession?

Ans. Yes.

Q. I do not wish to record your statement forcibly or under any pressure and I, therefore, give you time of 48 hours to think over the same. During this you will be kept at place other than the custody of Tapasi Officer. Whether have you understood this?

Ans. Yes.”

605. Before recording the second part of the confession, the officer asked the following questions to the appellant. The questions and answers are quoted below:

“Q. On 15-4-1993, you were produced before me and on that day you were given time of 48 hours to think over before recording the statement. That time-limit has been expired, have you thought it over?

Ans. Yes.

Q. Whether you are under any pressure or you have been given any threat or allurement to make this confessional statement?

Ans. No.

Q. Whether you know that, if you make any confession, then it may be produced in the court as an evidence against you?

Ans. Yes.”

The abovequoted conversation shows that the appellant (A-11) had been given due warning by the officer recording the statement that his statement can be used against him. He had also been asked if there was any coercion or threat due to which he was giving his confessional statement. The questions and answers establish that the confession made by the appellant (A-11) was voluntary.

606. It has also been contended by the side of the appellant that a part of the confession was made after two months and, hence, it is a manipulated confession. This contention of the appellant (A-11) is devoid of any merit. The second confession has been discarded by the trial court and the prosecution has also not pressed into service that confession before this Court.

607. The learned counsel for the appellant (A-11) has further contended that the confession of the appellant (A-11) was recorded in the odd hours of the night. It is pointed out by the prosecution that this fact could be elicited from the officer recording the confession, who was the best person to answer the query. It was also highlighted that it was not as a matter of routine that the confessions were recorded late at night and only a few confessions have been recorded in the late hours which could have been explained by the recording officer, if he was given an opportunity to explain in the cross-examination.

608. The said confession of A-11 was sought to be retracted on 11-1-1994. It is pointed out by the side of the prosecution that the material contained in the retraction statement is vague. It does not give any details or particulars. The said retraction statement fails to pinpoint the reason behind the failure of accused concerned to make any complaint to the authority, higher police officers or any other authority including the court regarding his signatures being obtained on blank papers and/or the papers containing some typed material and the reason behind himself being forced to effect the said signatures. It may also be noted that the retraction was not made at the first available opportunity by the accused person. After arrest, the accused persons were brought before the court number of times in 1993 and 1994 and the retraction was made many months after making of the confession. From the above discussion, it is established that the confession of the appellant (A-11) was truthful and voluntary. It has also been demonstrated that the requirements of Section 15 TADA have been complied with. Hence the confession of the appellant (A-11) is admissible as substantive evidence.

Confessional statement of co-accused

609. A perusal of the above confession of the appellant (A-11) shows that he was playing a key role in furtherance of the abovesaid conspiracy. The other accused, in their confessions under Section 15 TADA, have also discussed the role played by the appellant (A-11) in the conspiracy.

Confessional statement of Mohd. Shoaib Mohammed Kasam Ghansar (A-9)

610. The confessional statement of A-9 under Section 15 TADA has been recorded on 19-4-1993 and 22-4-1993 by Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. In the abovesaid confessional statement, the reference to the appellant (A-11) is as follows:

“We, thereafter, came at Al-Hussaini Building of Tiger by red-coloured Maruti van. He took the car inside after dropping me at the gate and took me inside after ten minutes and offered me a chair to sit. At that time Gani, Parvez, Shafi, Anvar were present there and 5/6 more persons were working in garage.”

(emphasis supplied)

Confessional statement of Asgar Yusuf Mukadam (A-10)

611. The confessional statement of A-10 under Section 15 TADA has been recorded on 23-4-1994 (1800 hrs), by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confessional statement, the reference to the appellant (A-11) is as follows:

(i) His confession establishes that the appellant (A-11) was a close associate of Tiger Memon and used to assist him in hawala transactions by accepting delivery and receipt of funds. He also used to assist Tiger in the landing of smuggled items and their transportation to various places.

(ii) A-11, along with other co-accused, assisted the accused (A-10) in collecting Rs 1 crore from Choksi (A-97) for Yakub Abdul Razak Memon (A-1).

(iii) Following the departure of Tiger, he was seen present along with other co-accused viz. Javed Chikna (A-12), Shafi, Parvez, Bashir, Usman, etc. at Tiger's residence where various vehicles loaded with RDX were parked which were used for causing bomb blasts.

Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

612. The confessional statement of A-12 under Section 15 TADA has been recorded on 18-4-1993 (1400 hrs) and 21-4-1993 (0650 hrs) by Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. The references made by him with regard to the appellant (A-11) are as follows:

(i) A-11 introduced A-12 to Tiger Memon.

(ii) A-11 worked in the Tiger's office at Dongri and introduced A-12 to Tiger for employment in his office.

(iii) A-11 used to attend hawala transactions of Tiger along with other associates and also used to help him in his landing operations at Shekhadi coast.

(iv) A-11 went to Shekhadi coast along with other associates to help Tiger in the landing of arms and ammunition and explosives, which was delayed and effected on 3-2-1993, and transported the said material to the Tower and then to Bombay with the help of the vehicles containing secret cavities for the said purpose.

(v) A-11 also assisted Tiger along with other associates in landing at Shekhadi in the second week of February, 1993 and transportation of the consignments to the Tower and thereafter to Bombay.

(vi) A-11 was present in Al-Hussaini Building even after the departure of Tiger Memon.

(vii) On the night of 11-3-1993, A-11 filled the chemical into the vehicles parked in the garage at Al-Hussaini Building.

613. It has been contended by the learned counsel for the appellant that from the confession of A-12, it can be inferred that the appellant (A-11) was working as a driver of Tiger Memon. In view of the fact that A-12 has given details about the presence and involvement of the appellant (A-11) in the conspiracy and also about his participation in the act of loading chemicals into the vehicles, it cannot be denied that he was not an integral part of the conspiracy. The fact that A-11 was working in close association with Tiger Memon and was entrusted with the task of driving the jeep shows the trust reposed in him by Tiger Memon. It is just because of the said trust, the position of responsibility commanded by the appellant in the conspiratorial design followed. He played an important and significant role. It cannot be said that A-12 has not given details of any overt act done by A-11. A-12 has, in fact, given significant details about the involvement of A-11 in the landings that took place and in the movement of vehicles in which cavities were made. A-11 was present in Al-Hussaini Building even after the departure of Tiger Memon in the early hours of 12-3-1993. This fact establishes that there was no coercion and threat and the appellant (A-11) was working in pursuance of the object of the conspiracy out of his own free will and volition.

Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)

614. The confessional statement of A-13 under Section 15 TADA has been recorded on 16-5-1993 and 18-5-1993, by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The reference to the appellant (A-11) in the said confession has emerged as under:

(i) A-11 participated in the firing practice at Andheri.

(ii) He was asked by Tiger to take out one gun along with its rounds and hand grenades for training purpose at Andheri.

Confessional statement of Imtiaz Yunus Miya Ghavate (A-15)

615. The confessional statement of A-15 under Section 15 TADA has been recorded on 7-5-1993 (1230 hrs) and 9-5-1993 (1330 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confessional statement, the following facts have emerged:

(i) A-11 was a close associate of Tiger Memon and worked in his office.

(ii) A-11 had gone to receive Tiger Memon at the airport on the night of 23-1-1993/24-1-1993 and then took him to his residence.

(iii) He participated in the landing and transportation of smuggled arms and ammunition at Shekhadi.

(iv) He transported the arms and explosives from Waghani Tower to Bombay in a jeep.

Confessional statement of Sharif Abdul Gafoor Parkar alias Dadabhai (A-17)

616. The confessional statement of A-17 under Section 15 TADA has been recorded on 18-4-1993 and 20-4-1993, by Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. He referred to the role of A-11 as follows:

(i) On 7-2-1993, the appellant (A-11), along with other co-accused (A-18 and A-28), visited the residence of co-accused A-14, and paid Rs 1 lakh to him. He also brought gunny bags in a tempo.

(ii) A-17 stated that they were given a total of Rs 15 lakhs which included Rs 1 lakh which was given through the appellant (A-11). This money was distributed amongst the various custom officers, police officers, trawlervala, labourers and some money was also spent for the truck and other miscellaneous expenses.

(iii) The appellant (A-11) brought other co-accused in a jeep. From the jeep, hand grenades and rifles were taken out for firing at Varad Ghat beyond Malad.

(iv) The appellant (A-11) was present along with A-17 at the foothill when the co-accused were doing the firing practice.

Confessional statement of Suleman Mohammed Kasam Ghavate (A-18)

617. The confessional statement of A-18 under Section 15 TADA has been recorded on 18-4-1993 (1300 hrs) and 1-5-1993 (2030 hrs), by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The following facts have emerged from the confessional statement of A-18:

(i) On 5-2-1993, the appellant (A-11) accompanied A-18 and A-28 and went to Mhasla in a tempo bearing No. MMP 4799 and on 6-2-1993 he met Dawood Taklya (A-14) and Dadabhai (A-17) at Mhasla. He helped in loading 59 to 63 packets in the tempo. He was also associated with transporting of those bags.

(ii) At the instance of Tiger Memon, A-11 along with A-18 returned to Mhasla from Panvel. They again went to Bombay along with the son of Dawood Taklya (A-14).

(iii) On 8-2-1993 or 9-2-1993, he met A-18 at Malad when he was with Tiger and others.

(iv) He was also present at Mhasla Tower along with others.

Confessional statement of Mohd. Iqbal Mohammed Yusuf Shaikh (A-23)

618. The confessional statement of A-23 under Section 15 TADA has been recorded on 20-5-1993 (1000 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The following facts have emerged from his confessional statement:

(i) The appellant (A-11) has been referred to as “a man of Tiger”.

(ii) The appellant (A-11) took A-23 and others to the hills where he (A-11) took out the arms and ammunition (a gun, two hand grenades, and a bag of bullets of the gun) and Tiger imparted training in throwing hand grenades and firing with AK-56 rifle.

Confessional statement of Manoj Kumar Bhanwar Lal Gupta (A-24)

619. The confessional statement of A-24 under Section 15 TADA has been recorded on 30-4-1993 (1615 hrs) and 9-5-1993 (1900 hrs) by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The following facts have emerged in his confessional statement:

(i) A-11 participated in the first landing at Shekhadi.

(ii) At Shekhadi, the packets were opened and reloaded in the truck. There were AK-56 rifles, hand grenades, pistols, cartridges in the packets.

(iii) A-24 also participated in the second landing at Shekhadi along with other people (he has not named the people present in the second landing).

Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)

620. The confessional statement of A-28 under Section 15 TADA has been recorded on 23-4-1993 (1700 hrs) and 1-5-1993 (2330 hrs) by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The following facts emerge from his confessional statement:

(i) A-28 knew Tiger, Anwar, Rafique Madi, Haji Yakub and Gani (A-11).

(ii) On 5-2-1993, the appellant (A-11), along with A-18 and A-28, proceeded in a vehicle from Mahim to Mhasla.

(iii) At Mhasla, he met A-14 and A-17, who got 55-60 gunny bags loaded in their tempo.

(iv) Tiger sent A-11 and A-28 to Persian Darbar.

Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)

621. The confessional statement of A-29 under Section 15 TADA has been recorded on 18-5-1993 (1830 hrs) and 21-5-1993 (1445 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The statement of A-29 further corroborates the fact that A-11 participated in the landing that took place at Shekhadi. From the statement, it is further established that Gani (A-11) had driven the jeep which was carrying the smuggled goods.

Confessional statement of Mohd. Rafique Musa Biyariwala alias Rafiq Madi (A-46)

622. The confessional statement of A-46 under Section 15 TADA has been recorded on 21-4-1993 (1900 hrs) and 23-4-1993 (2125 hrs), by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The following references have been made in the said confession regarding the appellant:

(i) A-11 worked in the office of Tiger Memon.

(ii) A-11 was one of the staff members of Tiger Memon attending his Dongri office for assistance in his business activities including his landing operations of smuggled goods.

(iii) A-11, along with A-46 and other associates, assisted Tiger Memon in the landing at Shekhadi which took place on 3-2-1993 after the delay of 2-3 days and then arranged for transport along with A-17 and others for its services at the Tower.

(iv) A-11 reached the Tower in a Commander jeep and exchanged his vehicle with A-46.

Confessional statement of Shaikh Ali Shaikh Umar (A-57)

623. The confessional statement of A-57 under Section 15 TADA has been recorded on 19-4-1993 (1200 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The reference to the appellant in the said confession is as follows:

(i) In the first week of February, when Javed Chikna (AA) took A-57 and A-77 to the house of Tiger Memon, A-11 was present there along with the other co-accused.

(ii) A-11 was seen on 10-3-1993 after a meeting took place in a flat at Bandra.

(iii) A-11 was present in the flat of Tiger Memon at Al-Hussaini Building on the night of 11-3-1993 and then in the garage where the filling was being done.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

624. The confessional statement of A-64 under Section 15 TADA has been recorded on 22-1-1995 and 24-1-1995, by Shri H.C Singh (PW 474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The references to the appellant (A-11) in the said confession are as follows:

(i) In the last week of January, when A-64 went to meet Tiger Memon, A-11 was present there along with the other co-accused.

(ii) He observed that A-11, Javed Chikna, Shafi, Anwar Theba and Rafiq Madi used to visit the residence of Tiger Memon.

(iii) The appellant was seen driving a blue-coloured Maruti car in which Tiger Memon had gone to Hotel Persian Darbar to meet the other conspirators.

(iv) While going to Shekhadi, on the way, the accused stopped at a place, where A-11 brought a black-coloured bag which contained five AK-47.AK-56 rifles, revolvers, magazines and cartridges.

(v) The appellant participated in the first landing at Shekhadi.

(vi) A-11 also participated in the second landing at Shekhadi.

(vii) He was present at Al-Hussaini Building compound during the preparation of vehicle bombs by using RDX in the night of 11-3-1993/12-3-1993 which had landed at Shekhadi.

Confessional statement of Gulam Hafiz s/o Suleman Shaikh alias Baba (A-73)

625. The confessional statement of A-73 under Section 15 TADA has been recorded on 15-5-1993 (2205 hrs) and 17-5-1993 (0145 hrs) by Vinod Balwant Lokhande, the then DCP, Airport Zone, Bombay. The references to the appellant in the said confession are to be found as under:

(i) The appellant (A-11) was present at Mhasla Tower along with Tiger and others in a jeep. They had also brought a truck which was loaded with goods which contained bombs, rifles and cartridges.

(ii) He was present while unloading contraband from a truck into a tempo and jeep at Mhasla Tower.

Confessional statement of Mohd. Parvez Zulfikar Qureshi (A-100)

626. The confessional statement of A-100 under Section 15 TADA has been recorded on 15-4-1993 (2330 hrs) and 17-4-1993 (1700 hrs), by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The references to the appellant in the said confession are as follows:

(i) He was present at the residence of Tiger Memon in the night of 11-3-1993/12-3-1993 along with the other co-accused.

(ii) The appellant was loading “goods” in the jeep.

627. Thus, it is very well established that the appellant was aware of the consequences of his action and played an important role in the conspiracy.

628. From the confessional statements of the above co-accused, the following facts are established:

(i) The appellant was a very close associate and trusted confidant of Tiger Memon.

(ii) The appellant worked in the office of Tiger Memon and was entrusted with the tasks which could only be assigned to trusted and responsible persons.

(iii) The appellant played an active role in the hawala transactions of Tiger Memon.

(iv) The appellant used to collect money from Choksi (A-97) of Zaveri Bazaar.

(v) The appellant collected Rs 1 lakh from Choksi (A-97) for Yakub Memon (A-1).

(vi) The appellant was involved in the episode of landing of arms and ammunition and explosives at Shekhadi coast.

(vii) The appellant was present at Waghani Tower where the said articles were shifted in a tempo and jeep.

(viii) The appellant participated in the landing which took place at Mhasla and was also entrusted with the duty of transportation of the smuggled goods.

(ix) The appellant was present in the garage of Al-Hussaini Building in the intervening night between 11-3-1993/12-3-1993.

(x) The appellant was actively involved in the work of filling of chemicals in the vehicles for their use as bombs.

(xi) On 23-1-1993/24-1-1993, the appellant had gone to the airport to receive Tiger Memon.

(xii) The appellant attended conspiratorial meetings.

(xiii) The appellant was a participant in the training programme conducted at Andheri by Tiger Memon.

(xiv) The appellant was present in Al-Hussaini Building even after the departure of Tiger Memon.

(xv) The appellant was one of the most active member of the conspiracy and was a part of it from the stage of inception to the final stage of execution of the terrorist activities.

(xvi) The appellant participated in the conspiracy from planning to execution at various stages.

Retracted Confessions

629. We have already held that the confessional statement made by a person under Section 15 TADA shall be admissible in the trial of a co-accused for the offence committed and tried in the same case together with the accused who makes the confession. A confessional statement given under Section 15 shall not be discarded merely for the reason that the same has been retracted. Further, a voluntary and truthful confessional statement recorded under Section 15 of the TADA Act requires no corroboration. Since the very same objection raised in the connected appeals was considered earlier, we are not once again repeating the same. The said conclusion is applicable to these appeals also.

Deposition of prosecution witnesses

Deposition of Mohd. Usman Jan Khan (PW 2) (approver)

630. In the deposition of PW 2, the following statements are relevant:

(i) PW 2 deposed that he knew A-11. He identified the appellant in the court.

(ii) He mentioned that Tiger Memon along with other co-accused was waiting for the appellant to come with his Commander jeep after the landing had taken place at Shekhadi.

(iii) On reaching Nagothane Petrol Pump, Shafi took the co-accused to the south Indian hotel at the petrol pump where the witness saw the appellant (A-11) sitting with Tiger along with Anwar Theba (AA), Munna, Karimullah, Ethesham, Akbar. Then they all had lunch in the hotel.

(iv) He also deposed about the landing of AK-56 rifles, rounds, hand grenades, pistols, magazines and RDX i.e “kala sabun”.

(v) He also gave details of their stay at Hotel Persian Darbar where the appellant (A-11) was also present.

(vi) On the same day i.e on 10-2-1993, at about 7.30 p.m, Tiger Memon came to Hotel Persian Darbar with A-16. Tiger Memon went to the room of the witness and told Shafi to shift the box which they had brought from their jeep to the jeep of the appellant (A-11).

(vii) PW 2 also told about the meeting which took place at the house of Shakil, and thereafter, the meeting with the appellant (A-11) outside Lucky Hotel.

631. The learned counsel for the appellant submitted that A-11 had no involvement in the conspiracy and was used as a driver to transport goods and people from one place to another and also that the presence of A-11 in the important conspiratorial meetings has not been mentioned by the approver. It is pointed out by the prosecution that the charges against the appellant have been fully established by the admissible and reliable evidence on record. It is also stated that it is not necessary that the approver ought to speak about each and every aspect of the prosecution case. It is not the case of the appellant that the approver presented inherently contradictory facts than the one proved by the prosecution. It is also pointed out that A-11 has admitted that he was present when the chemical (black soap/RDX) was being filled in the vehicles viz. one jeep, two Maruti cars, one Maruti van, one Ambassador car and five scooters. He further stated as under:

“While filling the chemical, firstly a layer of chemical was filled and then pieces of iron were spread over and again a layer of chemical was filled and pressed. I had also done some work. Something like pencil was pierced into the chemical when the work of filling the chemical was over and before we left taking the vehicle in the morning. This work of piercing the pencil into the chemical was done by Anvar and some other 1-2 boys.”

Further, when a question was put to him as to why these arms and ammunition were brought and what was the motive behind the conspiracy, he answered that this was to avenge the loss suffered by Muslims during the riots and he further admitted to be knowing the consequences of the actions i.e the destruction that would take place due to their actions.

Deposition of Shekhar Shukra Devadiga (PW 15) (eyewitness)

632. PW 15 has deposed as under:

(i) He had seen A-11 parking the jeep at Century Bazaar on 12-3-1993.

(ii) He identified A-11 in the test identification parade held on 14-5-1993 by Moreshwar Gopal Thakur, Special Executive Magistrate, (PW 469) for which memorandum, Ext. 1512 was prepared.

(iii) He again identified A-11 in the court and said that he had observed A-11 very carefully prior to identifying him.

(iv) He identified the appellant (A-11) as the person who brought the blue jeep and parked it in front of his shop which subsequently exploded.

(v) He deposed that other than identifying the appellant (A-11) in court and seeing him on the day of the blast, he had never seen him before.

633. Regarding the evidence given by PW 15, the learned counsel for the appellant (A-11) has contended that the eyewitness had left the city after the blast and, hence, he was not reliable. In reply to the said contention, it is rightly pointed out that this is normal human conduct. Further, it has come on record that many persons left the city immediately after the blasts. The people who were injured or who had witnessed the blasts were very scared and horrified by the incident. Similar explosions were caused at various places in the city. So the people of the city were frightened and went to their native places. The said conduct of the witness does not render his testimony doubtful.

Deposition of Moreshwar Gopal Thakur, Special Executive Magistrate, (PW 469)

634. PW 469, the Special Magistrate, deposed on 1-2-1999. He stated that he conducted the test identification parade on 14-5-1993 for PW 15 for the identification of A-11. The eyewitness [Shri Sreedharan Govindan and Shri Shekhara Shukara Devadiga (PW 15)] identified the appellant (A-11) as the person who parked the blue jeep near Century Bazaar, Worli. The witness also proved Ext. 1512 which was the identification parade panchnama.

Deposition of Maharajpuram Subramaniyam Seshadri (PW 327)

635. At the relevant time, PW 327 was the Deputy General Manager, Quality Control, Mahindra and Mahindra Company. He deposed as under:

(i) The bumper (Article 406) was of a Commander jeep. The said article was proved to be a part of front bumper of Mahindra jeep, Commander hard top model shown to him by Inspector Gaikwad at the office of police at Crawford Market.

(ii) He also proved his report being Ext. 655 and gave the same to Police Officer Gaikwad.

Deposition of Anilkumar Vithal Kamat (PW 669)

636. At the relevant time, PW 669 was the Inspector of Police. He deposed as under:

(i) He seized 11 articles from the place of occurrence in the presence of FSL experts and prepared a panchnama, Ext. 2466. This panchnama contains the details of collection of samples by chemical analyser and the chassis and engine number of fully burnt cars.

(ii) One engine was also seized from the place of occurrence. He also stated that the investigation carried out so far by him provided reasonable ground to believe the involvement of A-11.

(iii) He arrested the appellant.

(iv) He obtained the custody of the appellant (A-11) on 12-5-1993 from the Designated Court.

(v) He interrogated the appellant (A-11) and put him for identification parade.

Deposition of Fatehsingh Sohanrao Gaekwad (PW 543)

637. At the relevant time, PW 543 was working with the DCB-CID. His deposition was recorded on 9-12-1999. He also proved the death of various persons in the said blasts. He deposed that:

(i) He recorded the statement of the appellant (A-11) in August 1993 under Section 108 of the Customs Act, 1962 in respect of the damage done to the property due to the bomb blast.

(ii) He sought the order of sanction for prosecution of the appellant (A-11), who had already been arrested by him along with the other accused.

638. It has been contended by the learned counsel for the appellant that PW 543 had made a mistake and had admitted the same in para 21, so it can be inferred that they were acting negligently and they have not adhered to the provisions of the Code. PW 543 admitted as under:

“Though I had formally arrested the said 11 accused persons, the said persons being in judicial custody, I had not taken custody of the same and hence, I had not drawn any arrest panchnama while formally showing them to be arrested in CR No. 117 of 1993. My earlier statement of myself having formally arrested the said 11 accused persons before applying for grant of sanction is an incorrect statement. I made the said mistake of fact while giving the said answer.”

It is pointed out by the prosecution that this mistake was a bona fide one which the officer corrected at the earliest opportunity. He has also admitted the same in his deposition. The error made by him was an honest human error which cannot be said to have caused any prejudice to the appellant (A-11). From the admission of the officer, it can be conclusively inferred that the investigation was not manipulated and the officers were careful in the work done by them.

Deposition of Mahesh Yashwarnt Athavale (PW 611)

639. At the relevant time, PW 611 was attached with Dadar Police Station as a PSI. He inspected the scene of offence. On 24-3-2000, he deposed before the court as under:

(i) A panchnama was drawn by him being Ext. 1182 at the site regarding the prevailing situation and ascertaining the damage in the presence of panch witness, Gaurishankar Rajnarayan Oza (PW 307).

(ii) The said panchnama was in respect of the inspection of the site of explosion and the seizure of bumper of the vehicle bearing No. MP 09 S 0070 (Article 406).

(iii) The panchnama also records that a crater 11 ft long (south to north), 14 ft, 9 inches long (east to west) and (5 ft, 9 inches deep) was found after explosion at Century Bazaar, Worli.

(iv) The windows of the nearby buildings were broken and extensive damage was caused in and around the blast site.

(v) Many vehicles were damaged and two cars were fully burnt.

(vi) The said Panchnama was also proved by PW 307.

640. It was submitted on behalf of the appellant that the complainant has described the scene of explosion but he has not mentioned the name of anyone as the accused, so his complaint and testimony are not reliable and admissible. It is submitted that merely because the complaint does not carry the name of the accused, it would not lose its significance.

Deposition of Hari Shridhar Bhangale (PW 306)

641. PW 306 was a Constable attached with Dadar Police Station. At the relevant time, he was posted at Police Chowky near Century Bazaar along with Police Naik Keny. He deposed before the court that:

(i) He heard a loud explosion at the side of Ramodia Mansion on Annie Besant Road.

(ii) He also felt a jolt while in chowky.

(iii) He saw dense smoke billowing and he rushed to the place of explosion.

(iv) At the place of explosion, he found that a big ditch/crater was formed and that other buildings, BEST buses, motor taxis and several cars on the said road got damaged and many persons sustained injuries and had succumbed to death and were lying nearby the spot.

(v) He had taken 25 injured persons to Poddar Hospital.

Investigation, recoveries and FSL reports

642. Various articles were sent to FSL vide Exts. 1850, 1852 and 2423 for opinion and the reports of FSL were marked as Exts. 1851, 1853, 2424, 2467 and 2468. FSL reports show the traces of RDX in the said articles which are as follows:

(i) Ext. 1850 is a letter to FSL dated 17-7-1993 from CID requesting information about percentage/purity of RDX found on forwarded articles and components of explosives used.

(ii) Ext. 1851 is the reply of FSL dated 22-7-1993 to CID stating that percentage of RDX could be provided.

(iii) Ext. 1852 is a letter to FSL dated 8-8-1993 from CID requesting confirmation whether the engine sent for examination belonged to the exploded Mahindra jeep bearing No. MP 09 S 0070.

(iv) Ext. 1853 is the reply letter of FSL which stated that a high explosive device would have been placed near the engine and the gear box.

(v) Ext. 2423 is a letter from police dated 15-3-1993 to the chemical analyser, Bombay sending substances used in Century Bazaar bomb blast and requesting for an opinion on the nature of the bomb used.

(vi) Ext. 2424 is a letter from police dated 15-3-1993 requesting FSL's opinion on samples collected from the blast site.

(vii) Ext. 2466 is a panchnama containing the details of collection of samples by the chemical analyser. The chemical analyser has noted the chassis and engine number of the fully burnt cars.

(viii) Ext. 2467 is a FSL report dated 26-3-1993 giving engine number (DQ 16230) and chassis number (CDR 75 0 DP 2WD HT DQ1620). The report clarified that RDX was detected as an explosive from amongst the substances recovered by the police at the blast site.

(ix) Ext. 2468 is an FSL report dated 23-3-1993 which confirmed the presence of RDX as an explosive.

Witness describing the blast and damage

Deposition of Anjani Bhanu Gorule (PW 388)

643. PW 388's deposition was recorded on 5-8-1998. She deposed as under:

(i) On 12-3-1993, at 2.30 p.m, while doing household work on the first floor of her house at Nehru Nagar, Rahivashi Sangh, Century Bazaar, Bombay-18, she heard the sound of a loud explosion and she was thrown on the ground floor.

(ii) She became unconscious. However, after gaining consciousness, she found herself and her relative Sunanda Tambe, who had been in her house on the said day, in Poddar Hospital.

(iii) She sustained burn injuries to her right leg, fracture to left leg and minor injuries to her person due to piercing of splinters and she remained in the hospital for four days.

Deposition of Mrs Sunita Rajendra Walvekar (PW 389)

644. In her deposition dated 5-8-1998, PW 389 stated that at about 2 p.m, she had been to the beauty parlour on the second floor of Ramodia Mansion. She further deposed that:

(i) Around 2.30 p.m to 2.35 p.m, she heard the sound of a huge explosion.

(ii) As she was sitting near the window, something struck on her head and left hand which caused bleeding to her.

(iii) She found that shattered glass had pierced her hand. She removed the same and wrapped the injury with her clothes (pallu of saree) and came out of Ramodia Mansion.

(iv) She found that the entire atmosphere was full of black smoke.

(v) Her brother took her to KEM Hospital where she was treated for 11 days.

Deposition of Jayant Anant Sawant (PW 390)

645. PW 390 deposed in the court on 5-8-1998 as follows:

(i) On 12-3-1993, at about 2.45 p.m, while he was at his typing and xerox centre situated opposite to Passport Office on A.B Road, he heard a loud explosion from the side of Century Bazaar.

(ii) He was thrown away at a distance of 15 ft from the place where he was.

(iii) He sustained injuries on his right cheek due to striking of glass splinters and sustained bleeding injury on his right forearm along with swelling.

(iv) He also sustained injury on his right thigh.

(v) He went to KEM Hospital along with 2/3 persons who also had sustained injuries.

(vi) He was admitted in the said hospital and the glass splinters from his cheek and thigh were removed.

(vii) A piece of iron rod was removed from his forearm and plastic surgery was conducted on his right cheek.

(viii) He remained as an indoor patient in KEM Hospital for one month.

(ix) One Chedda accompanied him and some more injured persons were admitted at KEM Hospital for treatment while the others were discharged after the treatment.

Other Evidence

646. PWs 644, 638 and 632, doctors have issued the injury certificates, Exts. 2379, 2366 and 2350 for the injuries sustained by PW 388, PW 389 and PW 390 respectively.

Deposition of Dr Shivkumar Dhanjuram Jaiswal (PW 644)

647. PW 644 is a doctor attached to MA Poddar Hospital. He deposed regarding the certificate issued by him and entry of casualty register. His deposition reveals that PW 388 was brought to the hospital on 12-3-1993 and was having three injuries and in his opinion the same were involving risk to her life and had also given the history of injuries being sustained due to the bomb blast. The medical certificate of Anjani Manu Borale (PW 388) certifying that she was brought to MA Poddar Hospital on 12-3-1993 due to burns during the bomb blast has been proved by the witness.

Deposition of Dr Vidya Shirvaikar (PW 638)

648. The witness proved the medical certificate of Sunita Walvekar (PW 389) dated 12-3-1993 which had been marked as Ext. 2366 certifying that she was treated in the outpatient department of KEM Hospital, Parel for contused lacerated wound (CLW) on the face below the eye.

Deposition of Dr Parag Laxman Mhatre (PW 632)

649. PW 632 proved Ext. 2350, the medical certificate of Jayant Sawant dated 12-3-1993 certifying that the said victim was treated in the outpatient department of KEM Hospital, Parel for contused lacerated wound (CLW) on the face.

650. A total of 88 people died in the blast that took place at Century Bazaar.

651. PWs 391 and 393 proved the death of two of the victims in Century Bazaar blast as follows:

(i) Vilas Baliram Gamre (PW 391) deposed as a witness regarding the death of his father. While travelling in BEST bus, his father Baliram Gamre succumbed to injuries on 12-3-1993 at about 2.30 p.m to 2.45 p.m due to the bomb blast that occurred at Century Bazaar.

(ii) Ashalata Prakash Phatak (PW 393) proved the death of her husband, Prakash Gopal Pathak, in the blast that took place at Century Bazaar.

652. The doctors, who examined the dead bodies of various persons who died on account of the blasts, have also deposed regarding the injuries received by the deceased persons:

(i) Dr Walter George Vaz (PW 476) on 3-5-1999 described the reasons for the death of the victims in the blast and proved the death certificates, namely, Exts. 1584, 1585 and 1587 which were countersigned by him regarding the cause of death of John Thomas, Kisan Barshinge and Vishram Mayekar respectively after they were examined by Dr Baxi, Dr Pisal and Dr Inamdar respectively. He also proved his certificate regarding the opinion given by him for the cause of death of Prakash Pathak after examining his dead body.

(ii) Dr Anand Pandurangraj Desai (PW 477) proved the certificates countersigned by him regarding the opinion given by him for the cause of death of Baliram Gamre, Niyati Acharya and Mamta Surendra after examining their dead bodies.

Deposition of Kishore Laxman Sawant (PW 568)

653. PW 568 proved the accidental death reports (ADRs) prepared by him in respect of the dead persons in the blast. The PSI of Dadar Police Station at KEM hospital had registered ADR Nos. 25 of 1993, 34 of 1993 and 37 of 1993 regarding the accidental death of Balimar Gamre, Kumari Niyati Acharya and Prakash Pathak respectively. After the bodies were identified by their relatives, they were sent to the Coroner's Court through the officers of the Coroner's Court. In the same manner, with the help of other police officers, he had registered 34 accidental deaths reported at KEM Hospital. The said persons succumbed to death due to the bomb explosion which occurred at Century Bazaar.

Deposition of Shashikant Ramachandra Raut (PW 309)

654. PW 309 proved the damage caused by the explosion. The panchnama, Ext. 1186 dated 15-4-1998 was drawn by the Police Officer Shri Agarkar in his presence and in the presence of co-panch on 13-3-1993 at 2.30 p.m This panchnama was regarding the places visited by them and especially the damage caused to Century Bazaar building.

Deposition of Devji Nanji Jogadia (PW 580)

655. PW 580 proved the damage to the Passport Office. At the relevant time, he was the Superintendent of Administration at Passport Office, Bombay:

(i) Due to the explosion that occurred on 12-3-1993 in front of Ramodia Mansion, opposite to Passport Office, glass panes, window frames, furniture and doors of the Passport Office building were damaged.

(ii) For carrying out the repairs, an expenditure of Rs 3,29,908 was incurred which was paid by the Ministry of External Affairs and the quotation of M/s Mahindra & Company was accepted for the same.

656. The depositions of PWs 583 and 647 proved the damage caused to BEST Buses, public properties:

(i) Sadanand Yashwant Padgaonkar (PW 583) was the Assistant General Manager, BEST Office, Colaba. On 12-3-1993, he found one single-decker bus in completely burnt condition lying at the spot of Century Bazaar blast. He also reported seeing four damaged buses being brought to the workshop at Dadar and ordered repair of the said damaged buses and replacement of the bus lying at Century Bazaar which was also brought to the workshop. In the month of August 1993, he received the statement sent by the officer of the Engineering Department of BEST informing that the total expenditure of Rs 13,93,000 had been incurred for the abovestated work.

(ii) Pradeep R. Karandikar (PW 647), who was an Assistant Engineer in the Street Lighting Department of BEST deposed that as per the record the total cost was assessed as under:

(a) One BEST electric light pole of value Rs 12,000 had vanished;

(b) Three lanterns of value Rs 4000 were damaged; and

(c) BEST had sustained a loss of Rs 16,294 due to the blast that occurred at Century Bazaar.

Deposition of Jayvant Rahdeo Salvi (PW 316)

657. At the relevant time, PW 316 was the Colony Officer, G-Ward South for BMC and proved the damage caused to the properties belonging to BMC (public property):

(i) The pipelines in the Century Bazaar which were supplied by BMC were damaged due to the said explosion.

(ii) The said damage was assessed to the tune of Rs 45,000 by Assistant Engineer, Water Works, G-Ward South of BMC.

Deposition of Hemant Dattatray Parab (PW 579)

658. At the relevant time, PW 579 was a Fire Officer in Worli Fire Station and proved the damage caused in general. In his deposition dated 8-2-2000, he deposed that:

(i) After attending and inspecting Passport Office on 12-3-1993, he prepared the fire report, Ext. 2006 and Ext. 2007 on 13-3-1993 regarding the damage caused to the said site and the fire spread in the said area;

(ii) 29 vehicles on the road, 6 RCC buildings and one shed were under fire which was extinguished by them.

Evidence with regard to the vehicle (jeep) used in the blast

659. Three Commander jeeps were purchased by Mohd. Shafi Zariwala (AA). The following are the registration numbers of the same:

(i) MP 09 S 0070

(ii) MP 09 S 0080

(iii) MP 09 S 0082

The first jeep was used for the blast at Century Bazaar, Worli. The other two jeeps were found abandoned and were seized by the police. Shafi Zariwala (AA) purchased all these vehicles through PWs 365 and 366 and bookings were done by PW 195, an employee of M/s Wasan Motors, who were also dealers of jeeps. PW 627 of M/s Wasan Motors received the cash payment.

Deposition of Nilesh G. Parekh (PW 195)

660. PW 195 is a salesman of M/s Wasan Motors. He deposed that:

(i) In January 1993, Shakeel Suleman Hasham (PW 366) of Auto Links booked three Mahindra Commander jeeps in the names of Altaf Hussain, Aslam Shaikh and Jamal Ahmed of Indore. The delivery of the said jeeps i.e Articles 378 and 379 was taken through his representative on two different dates in the month of January 1993.

(ii) About ten days after the blast on 12-3-1993, the jeep (Article 378) bearing Registration No. MP 09 S 0082 was shown to him at M.R.A Marg Police Station.

(iii) After 3 to 4 days, he also saw the blazer blue-coloured jeep (Article 379) bearing Registration No. MP 09 D 3043 at the office of Crime Branch.

(iv) He inspected the said jeeps and found that one additional cavity box and aluminium sheet flooring was prepared.

(v) On 22-1-1993, the jeep, bearing Engine No. DQ 16217, Chassis No. 16217 and temporary Registration No. DMR 8322 was sold by M/s Wasan Motors.

(vi) Ext. 865 is the order form of three jeeps purchased by Shakeel i.e first blazer blue-coloured jeep purchased for Altaf Hussain of M.G Road, Indore, M.P with temporary Registration No. DMR 8322, Chassis No. DQ 16217, second blazer blue-coloured jeep purchased for Aslam Shaikh of M.G Road, Indore, M.P with temporary Registration No. DMR 8323, Chassis No. DQ 16140 and a third blazer blue-coloured jeep purchased for Jamal Ahmed of M.G Road, Indore, M.P with Chassis No. DQ 16230.

Deposition of Navnit Dhanpatrai Saini (PW 627)

661. At the relevant time, PW 627 was working as a sales executive with M/s Wasan Automobiles at Chembur. In his deposition dated 11-4-2000, he deposed as under:

(i) On 20-1-1993, as asked by PW 195, he met at his residence at Bibijan Terrace, Byculla.

(ii) He along with PW 366 went to Patel Petrol Pump and received Rs 4.73 lakhs from PW 365 as an advance for two Mahindra Commander jeeps which he wanted to book.

(iii) Thereafter, he deposited the said amount with PW 195. On 21-1-1993, as instructed by PW 195, he along with sub-broker, PW 366 had gone to PW 365 and placed an order for one more Mahindra hard top Commander jeep and paid Rs 2.36 lakhs in cash and he had given the same to PW 195.

Deposition of Kailash Baheti (PW 342)

662. PW 342 was carrying on the business as an auto consultant under the name and style of “Baheti Consultant”. In his deposition, he deposed that on 22-2-1993, he received the papers for registration of three Mahindra Commander jeeps at Indore. On the next day, after receiving a call from Bombay regarding the registration papers of the jeeps, he handed over the documents and necessary charges to Mahesh Tiwari, RTO Agent. The officer registered the said jeeps at RTO, Indore. PW 342 gathered from the sale certificates that all the said jeeps were purchased from M/s Wasan Automobiles at Bombay and he deposed that one of the purchasers of the jeeps was Jamal Ahmed who was residing at M.G Road, Indore and the other purchasers were also residents of M.G Road, Indore.

Deposition of Shakeel Suleman Hasham (PW 366)

663. PW 366 was carrying his business under the name and style of M/s Auto Links. In his deposition dated 9-7-1998, he disclosed that before giving the delivery of the said three jeeps to PW 365, he got them insured through insurance agent, Rakesh Tiwari (PW 338). He also got them registered at Indore, Madhya Pradesh through one Kailash Bindav. The delivery of the said three jeeps was taken by the party concerned directly from the showroom of M/s Wasan Automobiles.

Deposition of Suleman Mohammed Lakdawala (PW 365)

664. PW 365 was running his own petrol pump at Byculla, under the name and style of M/s Patel Brothers since 1988. Besides the said petrol pump business, he was also carrying the business of sale and purchase of motor vehicles. In his statement dated 9-7-1998, he stated that in the month of January/February 1993, he arranged for the purchase of three new Commander jeeps. The jeeps were bearing registration numbers of M.P They were purchased through PW 366 from Wasan Automobiles for a price of Rs 7 lakhs. The amount was paid by Shafi Zariwala (AA) and delivery of the jeeps was taken by Shafi who brought them to his petrol pump.

Deposition of Rakesh Tiwari (PW 338)

665. PW 338 was an insurance agent. Sometime, in between 22-1-1993 and 25-1-1993, at the instance of PW 366 of Auto Links, he insured three Commander jeeps and two Maruti vans with National Insurance Company. He gave the policy certificates to PW 366, who paid him the necessary charges. Ext. 1236 colly is the cover notes of the policies prepared as per the information given by PW 366.

Mukhtar Imdad Ahmed (PW 281)

666. PW 281 deposed that he had been asked by Shafi (AA) to prepare cavities in the jeep. The cavities were to be prepared under the front seat by covering the lower portion of the front left side seat of the jeep.

667. The evidence of the approver, the eyewitness, experts and others clearly implicate A-11 to the actual scene of the crime at Century Bazaar along with linking him to taking part in the entire conspiracy. The confession made by A-11 himself and the confessions of the various co-accused which have been discussed above are in consonance with the other available evidence. Hence, it is established that the appellant (A-11) was an active member of the conspiracy which led to the blasts at various places in Bombay and caused many deaths, injuries and loss to property.

668. The appellant (A-11) in his confessional statement admitted having planted the jeep at Century Bazaar. It is clear from his own confession along with the confessions of co-accused and other witnesses that he himself drove the jeep and left it there along with the bomb. It is also clear that he was aware of the entire conspiracy and was very close to A-1. He actively participated in the landings, smuggling of arms and ammunition, making of bombs and planting the bomb at Century Bazaar. The evidence given by the doctors and the family members of the deceased shows the extent of suffering that was inflicted by A-11 and the other accused in pursuance of the said conspiracy. The quantity of RDX that was used in the blasts clearly shows and establishes the fact that the blasts were intended to tear the economic, moral and social fabric of the nation and to induce communal tensions. The planning, timing and the intensity of the blasts establish that the blasts were synchronised so as to cause maximum damage to life and property and the involvement of the appellant in the entire conspiracy was of great importance as he was himself involved in the landing of arms and ammunition and even planted the jeep with a bomb which exploded in Century Bazaar.

669. In view of the above, we hold that the prosecution has produced sufficient evidence to bring home the charges framed against him.

Criminal Appeal No. 897 of 2008

Parvez Nazir Ahmed Shaikh (A-12) v. State of Maharashtra

670. Ms Farhana Shah, learned counsel appeared for the appellant (A-12) and Mr Gopal Subramanium, learned Senior Counsel, duly assisted by Mr Mukul Gupta, learned Senior Counsel and Mr Satyakam, learned counsel for the respondent.

671. The instant appeal is directed against the final judgment and order of conviction and sentence dated 21-9-2006 and 18-7-2007 respectively, whereby the appellant has been convicted and sentenced to death by the Designated Court under TADA for the Bombay Bomb Blasts Case, Greater Bombay, BBC Case No. 1 of 1993.

Charges

672. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-12). The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay and thereby committed offences punishable under Section 3(3) of the TADA Act, 1987 and Section 120-B of the Penal Code read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), 4(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

673. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts:

At head secondly, he abetted and knowingly and intentionally facilitated the commission of terrorist acts and acts preparatory to terrorist acts by doing the following overt acts:

(i) He along with co-conspirators participated in the landing and transportation of arms, ammunition and explosives at Shekhadi on 3-2-1993 and 7-2-1993;

(ii) He participated in training, in handling and use of arms, ammunition and hand grenades on the outskirts of Villages Andheri and Borghat;

(iii) He along with co-conspirators participated in the preparation of vehicle bombs in the night of 11-3-1993/12-3-1993 at Al-Hussaini Building;

(iv) He participated in the transportation of arms, ammunition, hand grenades and electric detonators from Jogeshwari to Musafirkhana with co-accused Ashrafur Rehman Azimulla Sheikh alias Lalloo and Smt Ruksana Mohammed Shafi Zariwala and thereby having committed an offence punishable under Section 3(3) TADA.

At head thirdly, he drove scooter bearing Registration No. MP 14 B 5349, laden with RDX explosives and fitted with time device detonator and parked the said vehicle at Katha Bazaar, opposite Maturchhaya Building, PS Pydhonie, Bombay which exploded resulting in death of 4 persons, injuring 21 others and causing loss of properties worth Rs 37 lakhs and thereby committed offences punishable under Sections 3(2)(i) and 3(2)(ii) TADA.

At head fourthly, for the aforesaid act mentioned in charge thirdly, the appellant has committed an offence punishable under Section 302 IPC.

At head fifthly, for the aforesaid act mentioned in charge thirdly, the appellant committed an offence punishable under Section 307 IPC by injuring 21 persons.

At head sixthly, the appellant (A-12), by causing the aforesaid explosion, which resulted in grievous hurt to 10 persons, committed an offence punishable under Section 326 IPC.

At head seventhly, the appellant (A-12), by causing the aforesaid explosion and voluntarily causing hurt to 11 persons, committed an offence punishable under Section 324 IPC.

At head eighthly, the appellant (A-12), by causing the aforesaid explosion, caused damage to properties worth Rs 37 lakhs, committed an offence punishable under Section 435 IPC.

At head ninthly, the appellant (A-12), by causing the aforesaid explosion, caused damage to the property used as dwelling house and as places for custody of property committed an offence punishable under Section 436 IPC.

At head tenthly, the appellant (A-12), by causing the aforesaid explosion, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head eleventhly, the appellant (A-12), by causing the aforesaid explosion, committed an offence punishable under Sections 4(a), 4(b) of the Explosive Substances Act, 1908.

At head twelfthly, the appellant (A-12), by possessing RDX without licence which was filled in the abovementioned scooter, which was used for causing the aforesaid explosion, committed an offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884.

At head thirteenthly, the appellant (A-12), planted an explosive laden suitcase in Room No. 1840 of Hotel Sea Rock on 12-3-1993, which exploded causing damage to the property to the tune of Rs 9 crores and thereby committed an offence punishable under Section 3(2)(ii) TADA.

At head fourteenthly, the appellant (A-12), by causing the aforesaid explosion committed an offence punishable under Section 307 IPC.

At head fifteenthly, the appellant (A-12), by causing the aforesaid explosion in Hotel Sea Rock by using explosives committed an offence punishable under Section 436 IPC.

At head sixteenthly, the appellant (A-12), by causing the aforesaid explosion in Hotel Sea Rock which resulted in damage to the properties worth Rs 9 crores, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head seventeenthly, the appellant (A-12), by causing the aforesaid explosion in Hotel Sea Rock committed an offence punishable under Sections 4(a), 4(b) of the Explosive Substances Act, 1908.

At head eighteenthly, the appellant (A-12), by possessing explosives without licence, committed an offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884.

Conviction and Sentence

674. The Designated Judge found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the abovesaid charges as follows:

674.1 The appellant has been convicted and sentenced to death under Section 3(3) TADA and Section 120-B IPC read with the offences mentioned in the said charge. In addition, the appellant was ordered to pay a fine of Rs 25,000. (charge firstly)

674.2 The appellant was further found guilty of the offence punishable under Section 3(3) TADA for commission of such acts as found proved from clauses “a” and “c” from the charge at head secondly framed against him and on said count the appellant (A-12) was convicted and sentenced to suffer RI for 12 years and is ordered to pay a fine of Rs 50,000, in default of payment of fine, was ordered to suffer further RI for a period of 1 year. (charge secondly)

674.3 The appellant was further found guilty of the offence punishable under Section 3(2)(i) TADA for commission of such acts as found proved from the charge at head thirdly framed against him and on said count he was convicted and sentenced to suffer punishment of death, subject to confirmation of the same by this Court, and is also ordered to pay a fine of Rs 25,000. (charge thirdly)

674.4 The appellant was further found guilty of the offence punishable under Section 302 IPC for commission of such acts as found proved from the charge at head fourthly framed against him and on the said count he was convicted and sentenced to suffer punishment of death, subject to confirmation of the same by this Court, and is also ordered to pay a fine of Rs 25,000. (charge fourthly)

674.5 The appellant was further found guilty of the offence punishable under Section 307 IPC for commission of such acts as found proved from the charge at head fifthly framed against him and on the said count he was convicted and sentenced to suffer RI for life and is ordered to pay a fine of Rs 25,000, in default of payment of fine, he was ordered to suffer further RI for a period of 6 months. (charge fifthly)

674.6 The appellant was further found guilty of the offence punishable under Section 324 IPC for commission of such acts as found proved from the charge at head seventhly framed against him and on the said count he was convicted and sentenced to suffer RI for 3 years. (charge seventhly)

674.7 The appellant was further found guilty of the offence punishable under Section 435 IPC for commission of such acts as found proved from the charge at head eighthly framed against him and on the said count he was convicted and sentenced to suffer RI for 7 years and was ordered to pay a fine of Rs 25,000, in default of payment of fine, he was ordered to suffer further RI for a period of 6 months. (charge eighthly)

674.8 The appellant (A-12) was further found guilty of the offence punishable under Section 436 IPC for commission of such acts as found proved from the charge at head ninthly framed against him and on the said count he was convicted and sentenced to suffer RI for 5 years and was ordered to pay a fine of Rs 25,000, in default, to further undergo RI for a period of 6 months. (charge ninthly)

674.9 The appellant was further found guilty of the offence punishable under Section 3 of the Explosive Substances Act, 1908 for commission of such acts as found proved from the charge at head tenthly framed against him and on the said count he was convicted and sentenced to suffer RI for 10 years and was ordered to pay a fine of Rs 25,000, in default of payment of fine, he was ordered to suffer further RI for a period of six months. (charge tenthly)

674.10 The appellant was further found guilty of the offence punishable under Section 4(b) of the Explosive Substances Act, 1908 for commission of such acts as found proved from the charge at head eleventhly framed against him and on the said count he was convicted and sentenced to suffer RI for 7 years and is ordered to pay a fine of Rs 25,000, in default of payment of fine, he was ordered to suffer further RI for a period of 6 months. (charge eleventhly)

674.11 The appellant was further found guilty of the offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884 for commission of such acts as found proved from the charge at head twelfthly framed against him and on the said count he was convicted and sentenced to suffer RI for two years. (charge twelfthly)

674.12 The appellant was further found guilty of the offence punishable under Section 3(2)(ii) TADA for commission of such acts as found proved from the charge at head thirteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for life and was ordered to pay a fine of Rs 1,00,000, in default of payment of fine, was ordered to suffer further RI for a period of 3 years. (charge thirteenthly)

674.13 The appellant was further found guilty of the offence punishable under Section 307 IPC for commission of such acts as found proved from the charge at head fourteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for 10 years and was ordered to pay a fine of Rs 1,00,000, in default of payment of fine, was ordered to suffer further RI for a period of 3 years. (charge fourteenthly)

674.14 The appellant (A-12) was further found guilty of the offence punishable under Section 436 IPC for commission of such acts as found proved from the charge at head fifteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for 10 years and was ordered to pay a fine of Rs 1,00,000, in default of payment of fine, was ordered to suffer further RI for a period of 3 years. (charge fifteenthly)

674.15 The appellant (A-12) was further found guilty of the offence punishable under Section 3 of the Explosive Substances Act, 1908 for commission of such acts as found proved from the charge at head sixteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for 7 years and was ordered to pay a fine of Rs 25,000, in default of payment of fine, was ordered to suffer further RI for a period of 6 months. (charge sixteenthly)

674.16 The appellant was further found guilty of the offence punishable under Section 4(b) of the Explosive Substances Act, 1908 for commission of such acts as found proved from the charge at head seventeenthly framed against him and on the said count, he was convicted and sentenced to suffer RI for 7 years and was ordered to pay a fine of Rs 25,000, in default of payment of fine, was ordered to suffer further RI for a period of 6 months. (charge seventeenthly)

674.17 The appellant was further found guilty of the offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884 for commission of such acts as found proved from the charge at head eighteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for two years. (charge eighteenthly)

Evidence

675. The evidence against the appellant (A-12) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimonies of prosecution witnesses including eyewitnesses; and

(iv) documentary evidence.

Conspiracy

676. As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstance. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer the same once again.

Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

677. The confessional statement of A-12 under Section 15 TADA has been recorded on 18-4-1993 (1400 hrs) and 21-4-1993 (0650 hrs), by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. The facts emerge from his confessional statement are as under:

(i) The appellant (A-12) was introduced to Tiger by Abdul Gani Ismail Turk (A-11).

(ii) The appellant (A-12) was told by A-11 that his (A-12) job was to bring and deliver the hawala money. Tiger Memon told the appellant to work with honesty.

(iii) In Tiger's office, the appellant (A-12) came across Asgar Yusuf Mukadam (A-10), Shafi (AA), Rafiq Madi (A-46), Anwar Theba (AA), Imtiyaz Yunusmiyan Ghavate (A-15), Salim Rahim Shaikh (A-52), Mohd. Hussain, Mohd. Mushtaq Moosa Tarani (A-44) and Haneef (A-40) and also came to know that Tiger was a smuggler of silver.

(iv) In the last week of January, 1993, the appellant (A-12) accompanied A-15 to Tiger's residence from where they, along with Tiger and other associates, left for Shekhadi for landing of smuggled items.

(v) The landing took place after three days. Meanwhile, the appellant (A-12) and others stayed at Vaisava Hotel at Malad and also at Hotel Big Splash, Alibaug.

(vi) On the fourth day, landing took place at Shekhadi. The appellant and some other boys were asked to wait for A-11 at the Tower. Thereafter, Tiger Memon came there along with a motor lorry which was loaded with goods. All the boxes in the lorry were unloaded at the Tower. The appellant and others opened the boxes and found that they were containing hand grenades, bullets, revolvers and wire bundles. Thereafter, some goods were loaded in the cavities of the jeeps and the remaining goods were loaded in the lorry.

(vii) The appellant (A-12) along with Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64), drove a jeep and stayed at Khandala as instructed by Tiger. A-64 left for Bombay as his daughter was sick. Tiger instructed the appellant (A-12) to stay there and told him that Suleman Mohammed Kasam Ghavate (A-18) will come in the morning. Accordingly, A-18 and A-15 came to Khandala and all of them left for Bombay.

(viii) At the time of opening of goods at the Tower, Tiger showed a pencil like item to all of them and told that it was worth Rs 25,000 and he could blow one Hotel Oberoi with it.

(ix) In the second week of February, 1993, the appellant again went with Tiger Memon and other accused persons to Shekhadi coast and was present there at the time when the goods were unloaded and re-loaded in the tempo. Thereafter, he went to the Tower along with other accused persons.

(x) On 15-2-1993/16-2-1993, the appellant along with A-10 went to Tiger's residence at Al-Hussaini Building where Shafi distributed Rs 10,000 to everyone present there.

(xi) On 11th March, on the instructions of Tiger, the appellant along with A-10, carried two suitcases, two hand bags and one big suitcase to Room No. 17 of Musafirkhana where he found that one bag was containing AK-56 rifles and another bag was having hand grenades in it. Thereafter, they went to the house of Shafi.

(xii) The appellant (A-12) and Shafi then went to Shafi's sister-in-law's house at Jogeshwari in a jeep where wife of Shafi (Rukhsana)(A-103) was also present. Shafi kept two AK-56 rifles and some hand grenades in one bag and pistols in another bag.

(xiii) The appellant (A-12) and others carried both the bags and left in a jeep and Shafi dropped them at Mahim and asked them to go to his house. Thereafter, they went to the house of Shafi and left both the bags there.

(xiv) The appellant (A-12) drove Shafi's scooter and reached Al-Hussaini Building.

(xv) At Al-Hussaini Building, the appellant saw that the accused persons were filling the black-coloured chemical into the cars, scooters and jeeps which was smuggled on 3-2-1993 at Shekhadi.

(xvi) The appellant also assisted the co-accused persons in filling RDX in the vehicles.

(xvii) The appellant, A-10 and Shoaib were asked by Anwar Theba (AA) to dispose of 5/6 plastic bags containing the empty cardboard boxes in which black soap was packed.

(xviii) On return to Tiger's residence, the appellant along with Asgar and Shoaib picked up three suitcases which were kept in the garage and reached Anwar's residence in a red-coloured van where they met Anwar Theba (AA) and Mushtaq (A-44). A-15 also joined them later.

(xix) Anwar Theba (AA) and Mushtaq (A-44) sat in the van and left towards Link Road. On the way, Anwar Theba (AA) opened the bags and inserted the pencil like articles into the chemical filled therein and then closed the same.

(xx) After reaching Link Road, Anwar Theba (AA) instructed A-12 to take one bag and keep it in Room No. 1840 of Hotel Sea Rock.

(xxi) Accordingly, the appellant kept the said explosive laden bag in the said room and reached Al-Hussaini Building and handed over the keys of the said room to Anwar.

(xxii) Thereafter, Anwar handed over an old blue-coloured Bajaj scooter to the appellant and asked him to park it in Katha Bazaar. Before leaving, Anwar Theba (AA) further inserted the said pencil into the black chemical which was filled in the scooter. The appellant parked the scooter at Katha Bazaar and took away the keys of the scooter with himself.

(xxiii) On 12-3-1993, when Asgar and Shoaib came to the house of the appellant (A-12), he then handed over the keys of the scooter which he had parked at Katha Bazaar to Asgar.

(xxiv) He knew that the explosions were for taking revenge for demolition of Babri Masjid against Hindus. He knew that the explosion would cause huge loss to human lives and properties and he intentionally committed this mistake.

678. On perusal of the aforesaid confessional statement of A-12, the following facts emerge:

(i) The appellant (A-12) was a trusted confidant of Tiger Memon since he was assisting him in crime relating to hawala transaction and was well acquainted with the other co-conspirators;

(ii) He participated in the landing of arms and ammunition and explosives and was fully aware of the nature and capacity of such material which is clear from the demonstration given by Tiger and as stated by the appellant (A-12) that a pencil like thing was good enough to blow up Oberoi Hotel;

(iii) He participated in the transportation and storage of such material;

(iv) He participated in filling of RDX in the vehicles parked in the garage of Al-Hussaini Building;

(v) He planted the suitcase in Hotel Sea Rock knowing that it contains RDX and is fitted with time pencil detonator; and

(vi) He parked the scooter laden with black chemical and fitted with time pencil detonator at Katha Bazaar.

Retraction statement

679. It was contended on behalf of the appellant (A-12) that since he subsequently retracted from his own confession dated 11-1-1994, the same cannot be relied upon. Since we have elaborately discussed the admissibility or otherwise of the retraction statements in the earlier part of our judgment, there is no need to refer the same once again. The said conclusion will be applicable to this appeal also.

Confessional statements of co-accused

680. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant are summarised hereinbelow.

Confessional statement of Mohd. Shoaib Mohammed Kasam Ghansar (A-9)

681. The confessional statement of A-9 under Section 15 TADA has been recorded on 19-4-1993 (1310 hrs) and 22-4-1993 (0030 hrs) by Prem Krishna Jain (PW 189) the then DCP, Zone X, Bombay. A-9 with reference to A-12 has stated as under:

(i) The appellant (A-12) was working for Tiger Memon and he used to visit his shop occasionally.

(ii) The appellant (A-12) along with other accused persons was working in the garage at Al-Hussaini.

(iii) A-12 and A-10, on the instructions of Anwar Theba (AA), threw away six big plastic bags in the wastage van of BMC.

(iv) In the morning of 12-3-1993, A-12 and A-10 brought out three VIP bags from the garage at Al-Hussaini Building and put them in the van and left for the residence of Anwar.

(v) Anwar Theba (AA) inserted steel pencil into the blackish chemical inside the bags and then the appellant was dropped near a taxi and was asked to go to Hotel Sea Rock with a bag.

(vi) The appellant came back to Al-Hussaini Building.

(vii) After the blast, A-10 and A-9 went to the house of the appellant on 13-3-1993.

Confessional statement of Asgar Yusuf Mukadam (A-10)

682. The confessional statement of A-10 under Section 15 TADA has been recorded on 23-4-1994 (1800 hrs), by Shri Krishan Lal Bishnoi (PW 193) the then DCP, Zone III, Bombay. A-10 with reference to the appellant has stated as under:

(i) The appellant was dealing with hawala money.

(ii) The appellant was present at Tiger's residence.

(iii) A-10 and A-12 took Rs 5 lakhs from Choksi (A-97) and gave it to Sharif Abdul Gafoor Parkar alias Dadabhai (A-17).

(iv) The appellant assisted him in collecting Rs 1 crore from Choksi (A-97) for Yakub Abdul Razak Memon (A-1).

(v) The appellant accompanied him to Tiger's residence and shifted two VIP bags, one hand bag and one briefcase from Tiger's residence to Room No. 17 of Haj Committee House, near Crawford Market.

(vi) The appellant accompanied him (A-10) to the house of Shafi and took a new scooter from his residence.

(vii) The appellant (A-12) along with other co-accused persons was present at Al-Hussaini Building in the night intervening between 11th/12th March and was loading black chemical in the vehicles.

(viii) A-10 and A-12 disposed off the plastic bags in which the empty boxes of chemicals were kept.

(ix) The appellant was present along with him when Anwar Theba (AA) inserted aluminium like pencils into the chemical filled in the suitcases.

(x) The appellant was dropped by the accused (A-10) on the instructions of Anwar Theba (AA) with one of the said VIP bag.

(xi) The appellant (A-12) came back to Al-Hussaini Building, thereafter, as per the instructions of Anwar, he drove one scooter loaded with RDX to park it at the designated place.

Confessional statement of Abdul Gani Ismail Turk (A-11)

683. The confessional statement of A-11 under Section 15 TADA has been recorded on 15-4-1993 (2235 hrs) and 18-4-1993, by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. A-11 with reference to the appellant has stated that:

(i) The appellant (A-12) was present at the residence of Tiger Memon on or about 27th/28th January along with co-accused Shafi, Yakub Abdul Razak Memon (A-1), Rahim Yakub Memon, Rafiq Madi (A-46) and Imtiyaz Yunusmiyan Ghavate (A-15), whereafter, all of them (except Yakub and his wife) left for Mhasla/Shekhadi.

(ii) The appellant (A-12) was present at Al-Hussaini on 11-3-1993 and was filling chemical alias black soap in the vehicles along with the co-accused.

Confessional statement of Dawood alias Dawood Taklya Mohammed Phanse alias Phanasmiyan (A-14)

684. The confessional statement of A-14 under Section 15 TADA has been recorded on 17-4-1993, by Shri P.K Jain, the then DCP, Zone III, Bombay. A-14 with reference to the appellant stated that the appellant along with Tiger Memon and others came to Shekhadi for landing of arms.

Confessional statement of Imtiaz Yunusmiyan Ghavate (A-15)

685. The confessional statement of A-15 under Section 15 TADA has been recorded on 7-5-1993 (1230 hrs) and 9-5-1993 (1330 hrs), by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A-15 with reference to the appellant stated the following:

(i) The appellant worked in the office of Tiger Memon.

(ii) The appellant participated in the landing at Shekhadi.

(iii) The appellant arrived at Anwar's house in the morning of 12-3-1993 along with A-10.

(iv) Thereafter, the appellant reached Al-Hussaini Building.

(v) The appellant drove a scooter filled with black-coloured soap like chemical at the instance of Anwar Theba (AA).

686. On perusal of the aforesaid confessions of the co-accused, it is clearly discernable that the appellant knowingly participated in doing the following overt acts:

(i) The appellant was a trusted confident of Tiger Memon since he was assisting him in crime relating to hawala transactions and was well acquainted with other co-conspirators.

(ii) The appellant participated in the landing of arms and ammunition and explosives and was fully aware of the nature and capacity of such material.

(iii) The appellant participated in transportation and storage of such material.

(iv) The appellant was involved in filling of RDX in the vehicles parked in the garage of Al-Hussaini Building.

(v) The appellant planted the suitcase in Hotel Sea Rock knowing that it contains RDX and is fitted with time pencil detonator.

(vi) The appellant parked the scooter laden with black chemical on the instructions of Anwar.

687. It is also clear that the confessions made by the appellants are truthful and voluntary and were made without any coercion. All safeguards enumerated under Section 15 TADA and the Rules framed thereunder have been duly complied with while recording the confessions of the appellants.

Deposition of prosecution witnesses

Blast at Katha Bazaar

Deposition of Laxman Dhondu Posture (PW 8)

688. PW 8 was working as a peon in the office of Chemical Corporation, Katha Bazaar. He is an eyewitness to the incident and has deposed as under:

(i) The appellant parked the scooter on the road in front of Matruchhaya Building at Katha Bazaar. It was this scooter in which the bomb exploded.

(ii) PW 8 identified the appellant before the court in the dock as the person who parked the said scooter.

(iii) PW 8 identified the appellant in the identification parade conducted by Moreshwar Thakur (PW 469), Special Executive Magistrate, on 13-5-1993, in Sitaram Building.

(iv) PW 8 further deposed that his employer's scooter was also parked next to the scooter parked by the appellant which was blown into pieces.

Deposition of Abdulla Ibrahim Shaikh (PW 9)

689. PW 9 was a driver working with one Mr Mehra, whose office was on the third floor of AGH Chambers which is opposite to Matruchhaya building:

(i) PW 9 deposed that on 12-3-1993, a boy was trying to park a scooter adjacent to his employer's car.

(ii) PW 9 told the driver of the scooter not to park it there since it would be difficult for him to take out his car.

(iii) PW 9 further deposed that on this the driver of the scooter told him that he will leave in a while and parked his scooter there itself.

(iv) While parking the scooter, the appellant even lost his balance and was about to fall on the car then he helped the driver of the scooter to park it.

(v) PW 9 stated that after sometime he heard the sound of a big explosion and saw that his car was completely burnt.

(vi) PW 9 identified the appellant (A-12) before the court as the boy who parked the said scooter which exploded.

(vii) PW 9 also identified the appellant in the identification parade conducted on 21-3-1993 at 4.30 p.m by PW 462 at Sacred Heart School.

690. On perusal of the depositions of PWs 8 and 9, it is clearly established that on 12-3-1993, the appellant parked the scooter at Katha Bazaar, opposite to Matruchhaya Building which later exploded. The appellant was duly identified by PWs 8 and 9 before the court and also during the identification parade conducted by the Special Executive Magistrate. The above depositions also sufficiently corroborate the confessional statement made by the appellant that he parked a scooter laden with explosives at Katha Bazaar.

Deposition of Vasant Ganpat Kamble (PW 462)

691. At the relevant time, PW 462 was the Special Executive Magistrate (SEM) who conducted the test identification parade for the identification of the appellant. He deposed as under:

(i) He conducted the test identification parade on 21-3-1993 for PW 9.

(ii) He further deposed that PW 9 duly identified the appellant (A-12).

(iii) The witness proved the panchnama of the parade which was prepared by him and is marked as Ext. 1478.

Deposition of Moreshwar Thakur (PW 469)

692. At the relevant time, PW 469 was the Special Executive Magistrate who conducted the test identification parade for the identification of the appellant A-12. He deposed as under:

(i) PW 469 conducted the test identification parade on 13-5-1993 at Sitaram Building in the presence of two panchas and also prepared a panchnama for the said parade.

(ii) PWs 8 and 9 identified the appellant as the person who parked the scooter at Katha Bazaar.

(iii) PW 469 in his deposition proved the panchnama.

Deposition of Suresh Satappa Walishetty (PW 680)

693. PW 680 was the investigating officer at the relevant time in the case pertaining to blast at Katha Bazaar:

(i) He deposed that the appellant made a statement before him that he was willing to make a voluntary disclosure which was reduced into writing by him.

(ii) The appellant (A-12) led the police party to Room No. 63 on the ground floor of Railway Quarters from where he took out a white shirt from a trunk and handed over the same to the police. On inspection by the police, it was found that it contained black stains on both the sleeves.

(iii) He deposed that he drew a recovery panchnama of the entire event.

(iv) He deposed that on 31-5-1993, the appellant made another disclosure statement and led the police party and got his driving licence bearing No. MH 01 93 5023 issued on 17-2-1993 recovered from the house of his friend Mohd. Taufiq Naulakhiya, resident of Hussain Rattan Chawl. The panchnamas for the entire event were also prepared.

(v) Vide covering letter dated 28-6-1993, PW 680 sent the said shirt to the chemical analyser.

(vi) The report of the chemical analyser dated 16-7-1993 was received by him.

(vii) He also deposed that one Raju Kodi (A-26) made a voluntary confession and led the police party to his shop and he took out a packet from a cupboard and handed over the same to the police party who opened it and found that it contained a registration certificate of Bajaj scooter bearing No. MP 14 B 5349, Chassis No. MO 5 178695.

(viii) He deposed that he prepared two panchnamas of the entire event.

694. The report of the chemical analyser confirms the presence of the highly explosive RDX (cyclonite) on the shirt recovered by the police party at the instance of the appellant (A-12). Thus it can safely be inferred that the appellant was present at the time of filling RDX in the vehicles and during the said process he had soiled his shirt.

Deposition of Sanjay Laxman Kadam (PW 530)

695. PW 530 was the API and had assisted PW 680 in the interrogation of the appellant on 31-5-1993. PW 530 confirms and corroborates the fact of the appellant (A-12) making a voluntary statement and, thereafter, leading the police party to the house of his friend Mohd. Taufiq from where his driving licence was recovered.

Deposition of Abdul Rauf (PW 525)

696. PW 525 was a police officer at Pydhonie Police Station at the relevant time. He deposed that he inspected the place of occurrence in the presence of panch witnesses. He further deposed as under:

(i) He seized chassis of a scooter and a part of the scooter which had burnt on the spot. The chassis bore the number MO 5 178695.

(ii) He seized the number plate of the scooter bearing No. MP 1B 5349.

(iii) He also seized glass splinters and ashes from the spot.

(iv) He deposed that he seized pieces of cloth and earth soaked with oil lying on the spot.

(v) He also drew a spot panchnama which was proved by him.

Deposition of Ramesh G. Thakur (PW 64)

697. PW 64, an electrician working in Andheri, has deposed as a witness. The following facts have been established from his statement:

(i) He is a panch witness.

(ii) In his presence, A-26 made a voluntary statement.

(iii) A-26 led the police party and the panch witness to his shop.

(iv) In his presence, the police party pursuant to disclosure recovered the registration papers of Bajaj scooter.

Deposition of Shantilal Gandhi (PW 386)

698. PW 386 was involved in the preparation of ornaments of gold and owned a stall in Zaveri Bazaar. He deposed to the following effect:

(i) He is a resident of Ratlam and after staying there he came to Bombay and worked at Zaveri Bazaar.

(ii) He knows A-26 since 1983.

(iii) Between 15-4-1992 to 20-4-1992 he went to Ratlam by train and before leaving, he met A-26.

(iv) A-26 told him that since Kumbhmela was going on in M.P, he would get 50% off on purchase of scooters.

(v) A-26 gave him Rs 20,000 to purchase a scooter from Ratlam, M.P in the name of P.B Mali.

(vi) He purchased the scooter for Rs 19,000 from Ratlam in the name of P.B Mali and gave his residential address as 53, Hatiram Darwaja.

(vii) The registration number of the scooter was MP 14 B 5349.

(viii) He then booked the scooter by train to A-26 from Ratlam.

699. Upon perusal of the evidence of PW 386, it is clearly established that he purchased the scooter at the behest of A-26 from Ratlam, M.P in the fake name of P.B Mali and A-26 paid the money for the said purchase. PW 386 also sent the registration papers to him which were subsequently recovered from his shop vide disclosure statement made by A-26.

Deposition of Pratapram Buraji Mali (PW 75)

700. PW 75 had his own business of making gold and silver ornaments and so also in the share market. He deposed as under:

(i) He knew Raju Kodi (A-26) for the last ten years.

(ii) He had seen Raju Kodi driving a blue-coloured scooter of Bajaj company.

(iii) He had not booked any scooter in his name.

On perusal of the aforesaid deposition, it is clearly discernible that the scooter was booked in the fake name which fact is also established from the deposition of PW 75.

Other witnesses

Depositions of Dharmendra Ratilal Parekh (PW 423) and Sadashiv Ganpat Ranmale (PW 429)

701. The above witnesses deposed about taking claim of the dead bodies of their brothers who succumbed to the injuries sustained during the blast at Katha Bazaar.

Deposition of Dr Madhavrao Lalasaheb Lankeshwar (PW 478)

702. PW 478 deposed about the fact that Hiten Ratilal Parikh, brother of PW 423 died on account of burn injuries sustained by him. PW 478 also issued medical certificate explaining the cause of the death.

Deposition of Vijay Harishchandra Kelvekar (PW 479)

703. PW 479 deposed about the fact that Baburao Ganpat Ranmale, brother of PW 429, died on account of burn injuries sustained by him. He also issued medical certificate explaining the cause of the death.

Deposition of Faizan Khan (PW 372)

704. PW 372 deposed that Gulabi House owned by his company was damaged. He deposed that the damage estimated was to the tune of Rs 25,000.

Deposition of Dinanath Ramchand Ramani (PW 373)

705. PW 373 deposed that he has an office at Vyapar Bhavan and due to the explosion at Katha Bazaar the glass panes of the windows in the bathroom and balcony were damaged.

Depositions of Suresh Shamrao Jathar (PW 617), Maheshwar Diwakar Datt Sharma (PW 616) and Anil Baburao Gorakshakar (PW 618)

706. All the abovesaid witnesses have proved the damage caused to the public property on account of explosion at Katha Bazaar.

Deposition of Namdeo Yashwant Gole (PW 430)

707. PW 430 deposed that he sustained injuries on his leg and forehead due to which he became unconscious and was admitted in GT Hospital.

Explosion at Hotel Sea Rock

Deposition of Premchand Pandhari Nath Garud (PW 23)

708. PW 23 was working as an attendant in the housekeeping department of the said hotel. He deposed as under:

(i) A guest (A-12), carrying a biscuit-coloured suitcase and a black shoulder bag checked in Room No. 1840 at about 1215 hrs.

(ii) The guest (A-12) was finding difficulty in opening the lock of the room so he assisted him in opening the door.

(iii) The appellant asked him not to disturb as he was exhausted and wanted to sleep.

(iv) Around 3 p.m, he heard a loud explosion due to which the said room was completely damaged and the lift also stopped working.

(v) PW 23 identified the appellant before the court in the dock.

(vi) He also identified the appellant in the test identification parade conducted by Vasant Kamble (PW 462) on 21-3-1993.

Deposition of Vasant Kamble (PW 462)

709. (i) He is the SEM who conducted the test identification parade on 21-3-1993 for the identification of A-12 at Sacred Heart School.

(ii) A panchnama of the parade was also prepared by him which is marked as Ext. 1478 and he also proved the same.

Deposition of Suresh K. Singh (PW 28)

710. At the relevant time, PW 28 was working as a bell boy in the said hotel.

(i) On 12-3-1993, he offered help to the appellant (A-12) to carry his biscuit-coloured suitcase and black-coloured bag but he refused to take any help.

(ii) After 10/15 minutes, he saw the appellant leaving the hotel without luggage.

(iii) He identified the appellant (A-12) in the test identification parade dated 7-5-1993 conducted by Almedia, Special Executive Magistrate at Bandra Police Station in the presence of panch witness.

Deposition of Suresh Kumar Champalal Bhandari (PW 467)

711. (i) He was the panch witness of the parade conducted by the SEM.

(ii) He deposed that PWs 28 and 23 duly identified the appellant (A-12) in the identification parade conducted by the SEM.

(iii) He deposed that a panchnama was prepared for the parade.

712. The abovesaid evidence establishes the fact that the appellant (A-12) entered into Room No. 1840 of Hotel Sea Rock along with the luggage and after leaving the same in the said room, he went out of the hotel. Thereafter, a big explosion took place in the said room. Both PWs 23 and 28 have identified the appellant (A-12).

Deposition of Ms Darive Nicholas Henriques (PW 279)

713. PW 279 was the front office receptionist at Hotel Sea Rock at the relevant time and deposed that a person by name Dominic D'Souza came to the hotel along with one more person to make an advance payment for Mr Advani's reservation on 8-3-1993.

Deposition of Johnwin George Manavalan (PW 280)

714. PW 280 was working as a cashier at Hotel Sea Rock and deposed of having accepted Rs 7000 on 8-3-1993 towards advance payment for reservation of the said room commencing from 11-3-1993, in the name of Mr Advani. He further deposed that he issued receipt for the same.

Deposition of Valery D'Souza (PW 620)

715. PW 620 was a reservation assistant at Hotel Sea Rock at the relevant time and deposed that on 8-3-1993, a person had come to confirm the check in of one Mr Advani on 11-3-1993. She deposed that the said person deposited Rs 7000 with the cashier and completed the reservation formalities.

Deposition of Lorraine Gonsalves (PW 495)

716. A receptionist at Hotel Sea Rock testified as follows:

(i) One person came to the desk and told that he has a booking in the name of Mr Advani of Gorakhpur Metal Company.

(ii) He gave the booking number.

(iii) He also produced the receipt for advance payment.

(iv) He was given a registration card in which he filled 108, Napean Sea Road, as his address.

(v) After completing all the formalities, she allotted Room No. 1840 and handed over the keys of the said room to him.

Deposition of Dr Manoj Jagatraj Virani (PW 107)

717. PW 107 was a doctor and residing at 100 AA, Sea View Bungalow. He deposed that no person by name Dominic D'Souza or Advani stayed at 108, Napean Sea Road.

718. On perusal of the aforesaid evidence, it is established that Room No. 1840 was booked in a fictitious name.

Deposition of Dominic Anthony Martis (PW 333)

719. At the relevant time, PW 333 was working as a security assistant at Hotel Sea Rock and deposed about the explosion and damage caused due to it. He proved his complaint which culminated into a first information report about the said incident.

Deposition of Rajan Mayandy Natarajan (PW 437)

720. He was also a security officer at Hotel Sea Rock and he deposed about the scene after the blast. He further deposed about the inspection of the site conducted by PSI Bhagwan and proved the panchnama drawn by him.

Deposition of Dastagir Mohamad Gavandi (PW 552)

721. PW 552 was a police officer and he deposed as under:

(i) He inspected the site.

(ii) PSI Bhagwan collected 7 to 8 samples from the room by drawing panchnama in the presence of panch witnesses.

(iii) On 14-3-1993, he along with PW 531 again went to the hotel with FSL experts who took some samples and handed them over to PW 531 vide panchnama Ext. 1826.

(iv) On 19-3-1993, he sent three sealed packets vide covering letter to the chemical analyser through PW 531.

(v) The chemical analyser report was received on 29-3-1993.

The report of the chemical analyser in this regard is clear that the samples sent for examination contained traces of high explosive RDX (cyclonite) and nitrite.

Deposition of Bhaurao Takekar (PW 531)

722. PW 531 was a police officer and deposed that on 14-4-1993 he went to the hotel along with Mandlik and Karnik, FSL experts and inspected the said room. FSL experts collected samples and handed over to him. He deposed that he drew a panchnama and handed over the seized articles to PW 552. He further deposed that he handed over three sealed packets to FSL for opinion vide covering letter, Ext. 1897.

Deposition of Ashok Hotchand Motwani (PW 419)

723. PW 419 was a Project Manager at Hotel Sea Rock and deposed about the monetary loss/damage caused to the hotel building owing to the explosion.

Other recoveries at the behest of the appellant

Deposition of Padmakar Bhosale (PW 43)

724. PW 43 is a hawker near Gandhi Market. He deposed that:

(i) The appellant made a voluntary statement that he was in possession of the licence and the revolver of Tiger Memon which he has kept in a black-coloured pouch in a house.

(ii) The appellant led the police party and the panchas to Railway Quarters, Andheri.

(iii) The appellant took them behind his house and took out a black-coloured pouch from the cavity of a fallen tree which contained a revolver loaded with six rounds and five loose rounds were also found, out of which, three were similar in number and two had different numbers inscribed on it.

(iv) The police party seized the same and a panchnama was drawn by PW 506.

Deposition of Anil Prabhakar Mahabole (PW 506)

725. PW 506 was posted at Matunga Police Station as API. He deposed as under:

(i) The appellant expressed his willingness to make a voluntary statement.

(ii) He called for two panchas.

(iii) He recorded the statement of the appellant (A-12) by drawing the panchnama.

(iv) The appellant (A-12) led the police party and the panchas to Railway Quarters.

(v) The appellant (A-12) then took the police party behind his house and from the cavity of a fallen tree pulled out a pouch.

(vi) The said pouch contained one old Cobra brand loaded revolver and five loose live cartridges.

726. It is contended by the counsel for the appellant (A-12) that there is no eyewitness to the incident of filling of RDX and as such the said incident has not been proved by the prosecution. It is clear from the confession of the appellant (A-12) and the confessions of other co-accused that the work of filling of RDX in vehicles and suitcases was carried out in the garage of Al-Hussaini Building. We are also satisfied that sufficient evidence is available on record to substantiate the fact that the appellant (A-12) participated in filling RDX in vehicles in the night intervening 11-3-1993/12-3-1993.

727. It is contended on behalf of the appellant that PW 8 saw a person parking the said scooter at Katha Bazaar from the window of his office which is at a distance of about 15-20 metres from the road and therefore, his statement should not be relied upon. It is further contended on behalf of the appellant (A-12) that the doctor who treated PW 8 of the injuries sustained by him in the blast has not been examined by the prosecution to corroborate the evidence of PW 8. The said contentions are also liable to be rejected since the scooter of PW 8's employer was parked close to the scooter parked by the appellant (A-12). It is normal human behaviour to look out for one's own vehicle or employer's vehicle and accordingly, PW 8 was attentive and had a clear sight of the scooter. Thus, there was no difficulty in seeing the appellant parking the scooter which later exploded. Further, PW 8 has correctly identified the appellant (A-12) before the court during the dock proceedings and also in the test identification parade. In addition to the same, it is relevant to mention that PW 8 has been extensively cross-examined by the defence on the point that he was injured and he took treatment at Dr Shah's Clinic and he withstood the cross-examination without being shaken. Therefore, the credibility of the evidence of PW 8 is not affected whatsoever.

728. It is contended on behalf of the appellant (A-12) that PW 530 had not obtained the signatures of panch witnesses upon the licence and/or that he had not recorded the registration number of the vehicle in the station diary and that the panch witness was not a local panch witness and was from a place more than 100 km away. This submission is also liable to be rejected since PW 530 clearly explained the circumstances in which he had taken the said panch for the panchnama i.e the persons who were fetched by staff from Crawford Market. PW 530 in his deposition stated that the driving licence being a plastic card, he could not obtain the signatures on the same and the details of the driving licence having already been mentioned in the panchnama, he had not pasted the label of the signature of panch witness upon the same and that he had mentioned in the station diary the purpose of his visit and the persons accompanying him.

729. Finally, it is contended on behalf of the appellant (A-12) that the testimony of PW 28 should be disregarded since he failed to identify the appellant (A-12) before the court. This contention of the learned counsel is also liable to be rejected since PW 28 had correctly identified the appellant (A-12) during the test identification parade dated 7-5-1993 and he failed to identify him before the court possibly because his testimony was recorded after about 2 years and 9 months i.e on 21-12-1995.

730. In view of the abovesaid confessional statement of the appellant (A-12), the confessional statements of other co-accused persons, as also the eyewitnesses along with other witnesses duly examined by the prosecution and recoveries made, the charges framed against the appellant have been duly proved.

Criminal Appeals Nos. 941-42 of 2008

Mohd. Farooq Mohammed Yusuf Pawale (A-16) v. State of Maharashtra

731. Ms Farhana Shah, learned counsel appeared for the appellant and Mr Gopal Subramanium, learned Senior Counsel, duly assisted by Mr Mukul Gupta, learned Senior Counsel and Mr Satyakam, learned counsel for the respondent.

732. The present appeals are directed against the final judgment and order of conviction and sentence dated 9-10-2006 and 25-7-2007 respectively, whereby the appellant has been convicted and sentenced to death by the Designated Judge in the Bombay Bomb Blasts Case, Greater Bombay in BBC No. 1 of 1993.

Charges

733. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-16). The relevant portion of the same is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay and thereby committed offences punishable under Section 3(3) of the TADA Act, 1987 and Section 120-B of the Penal Code read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), 4(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

734. In addition to the aforesaid principal charge of conspiracy, A-16 was also charged on other counts which are summarised as follows:

At head secondly, he committed an offence punishable under Section 3(3) TADA by committing the following overt acts:

(a) He participated in the landing and transportation of arms, ammunition and explosives which were smuggled into India at Shekhadi in February 1993.

(b) He visited Pakistan via Dubai for receiving training in handling of arms, ammunition and explosives from the agents of ISI to commit terrorist acts in India.

(c) He attended the conspiratorial meetings during the month of March 1993 at the residence of Babloo alias Nazir Anwar Shaikh and Mobina alias Baya Musa Bhiwandiwala for making plans to commit terrorist acts.

(d) He participated along with co-conspirators in loading the explosives like RDX fitted with time device detonators in various vehicles and in the preparation of vehicle bombs in the intervening night of 11-3-1993/12-3-1993.

(e) He surveyed and conducted reconnaissance of the Stock Exchange building and Air India Building on 10-3-1993 for causing explosions there at the instructions of Tiger Memon.

At head thirdly, he, along with PW 2 drove explosive laden Maruti car No. MH 03 A 2143 and parked the same at Lucky Petrol Pump near Shiv Sena Bhavan, Dadar, Bombay which exploded and caused death of four persons and injury to 50 persons and causing loss of property worth Rs 21,20,600 and thereby committed an offence punishable under Sections 3(2)(i) and 3(2)(ii) TADA.

At head fourthly, the appellant (A-16), by causing the aforesaid explosion which resulted in the death of 4 persons, committed an offence punishable under Section 302 IPC.

At head fifthly, the appellant (A-16), by causing the aforesaid explosion which resulted in the injury to 50 persons, committed an offence punishable under Section 307 IPC.

At head sixthly, the appellant (A-16), by causing the aforesaid explosion, which resulted in grievous hurt to 10 persons, committed an offence punishable under Section 326 IPC.

At head seventhly, the appellant (A-16), by causing the aforesaid explosion, which resulted into injury to 40 persons committed an offence punishable under Section 324 IPC.

At head eighthly, the appellant (A-16), by causing the aforesaid explosion which resulted into damage to properties worth Rs 22 lakhs, committed an offence punishable under Section 435 IPC.

At head ninthly, the appellant (A-16), by causing the aforesaid explosion, committed an offence punishable under Section 436 IPC.

At head tenthly, the appellant (A-16), by causing the aforesaid explosion, which resulted into death, injury and damage to property as mentioned has committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head eleventhly, the appellant (A-16), by causing the aforesaid explosion and possessing RDX explosives in the said car committed an offence punishable under Sections 4(a) and (b) of the Explosive Substances Act, 1908.

At head twelfthly, the appellant (A-16), by possessing RDX without licence committed an offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884.

At head thirteenthly, the appellant (A-16), along with co-conspirators drove explosive laden Ambassador car No. MH 20 TR 622 fitted with detonators and parked the said vehicle at the Tunnel Road, Air India Building in front of the rear gate of Bank of Oman Limited at Air India Building which exploded and caused death of 20 persons and injured 84 persons and loss of properties to the tune of Rs 2.15 crores and thereby committed an offence punishable under Sections 3(2)(i) and 3(2)(ii) TADA.

At head fourteenthly, the appellant (A-16), by causing the aforesaid explosion at Air India Building which resulted in death, committed an offence punishable under Section 302 IPC.

At head fifteenthly, the appellant (A-16), by causing the aforesaid explosion which resulted in injury to 84 persons committed an offence punishable under Section 307 IPC.

At head sixteenthly, the appellant (A-16), by causing the aforesaid explosion which resulted in grievous injury to 36 persons committed an offence punishable under Section 326 IPC.

At head seventeenthly, the appellant (A-16), by causing the aforesaid explosion which resulted in injury to 49 persons committed an offence punishable under Section 324 IPC.

At head eighteenthly, the appellant (A-16), by causing the aforesaid explosion which resulted in the damage of property committed an offence punishable under Section 435 IPC.

At head nineteenthly, the appellant (A-16), by causing the aforesaid explosion committed an offence punishable under Section 436 IPC.

At head twentiethly, the appellant (A-16), by causing the aforesaid explosion which resulted in the death, injury and damage to the property as mentioned above has committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head twenty-firstly, the appellant (A-16), by causing the aforesaid explosion committed an offence punishable under Sections 4(a) and (b) of the Explosive Substances Act, 1908.

At head twenty-secondly, the appellant (A-16), by possessing the RDX explosives in the abovementioned vehicle without licence, committed an offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884.

At head twenty-thirdly, the appellant (A-16), by causing the aforesaid explosion which resulted in the damage of public property i.e Air India Building committed an offence punishable under Section 4 of the Prevention of Damage to Public Property Act, 1984.

Conviction and Sentence

735. The Designated Court found the appellant guilty on all the aforesaid charges after considering the evidence brought on record by the prosecution. The appellant has been convicted and sentenced for the abovesaid charges as follows:

735.1 The appellant has been convicted and sentenced to death under Section 3(3) TADA and Section 120-B IPC read with the offences mentioned in the said charge. In addition, the appellant was ordered to pay a fine of Rs 25,000. (charge firstly)

735.2 The appellant was found guilty for the offence punishable under Section 3(3) TADA and sentenced to suffer RI for 12 years and is ordered to pay a fine of Rs 25,000, in default, he was ordered to suffer further RI for a period of 1 year. (charge secondly)

735.3 The appellant was sentenced to death, subject to confirmation of the same by this Court, for the offence punishable under Section 3(2)(i) TADA and Section 302 IPC respectively, and is also ordered to pay a fine of Rs 25,000. (charges thirdly and fourthly)

735.4 The appellant has been sentenced to RI for life for the offence punishable under Section 307 IPC. (charge fifthly)

735.5 The appellant has been sentenced to suffer RI for 10 years along with a fine of Rs 25,000 for the offence punishable under Section 326 IPC. (charge sixthly)

735.6 The appellant has been sentenced to suffer RI for 3 years along with a fine of Rs 10,000 for the offence punishable under Section 324 IPC. (charge seventhly)

735.7 The appellant has been sentenced to suffer RI for 7 years and 10 years for the offence punishable under Sections 435 and 436 IPC, respectively, along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charges eighthly and ninthly)

735.8 The appellant has been sentenced to suffer RI for 10 years along with a fine of Rs 5000, in default, to further undergo RI for 6 months for the offence punishable under Section 3 of the Explosive Substances Act, 1908. (charge tenthly)

735.9 The appellant has been sentenced to suffer RI for 7 years along with a fine of Rs 5000, in default, to further undergo RI for 6 months for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908. (charge eleventhly)

735.10 The appellant has been sentenced to suffer RI for 1 year for the offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884. (charge twelfthly)

735.11 The appellant has been sentenced to death along with a fine of Rs 25,000, in default, to further undergo RI for 3 years for the offence punishable under Section 3(2)(i) TADA. (charge thirteenthly)

735.12 The appellant has been sentenced to death, subject to confirmation of the same by this Court, along with a fine of Rs 25,000 for the offence punishable under Section 302 IPC. (charge fourteenthly)

735.13 The appellant has been sentenced to RI for life for the offence punishable under Section 307 IPC. (charge fifteenthly)

735.14 The appellant has been sentenced to suffer RI for 10 years along with a fine of Rs 25,000 for the offence punishable under Section 326 IPC. (charge sixteenthly)

735.15 The appellant has been sentenced to suffer RI for 3 years along with a fine of Rs 10,000 for the offence punishable under Section 324 IPC. (charge seventeenthly)

735.16 The appellant has been sentenced to suffer RI for 7 years and 10 years for the offence punishable under Sections 435 and 436 of IPC respectively along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charges eighteenthly and nineteenthly)

735.17 The appellant has been sentenced to suffer RI for 10 years along with a fine of Rs 5000, in default, to further undergo RI for 1 year under Section 3 of the Explosive Substances Act, 1908. (charge twentiethly)

735.18 The appellant has been sentenced to suffer RI for 7 years along with a fine of Rs 5000, in default, to further undergo RI for 1 year for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908. (charge twenty-firstly)

735.19 The appellant has been sentenced to suffer RI for 1 year for the offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884. (charge twenty-secondly)

735.20 The appellant has been sentenced to suffer RI for 5 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months for the offence punishable under Section 4 of Prevention of Damage to Public Property Act, 1984. (charge twenty-thirdly)

Evidence

736. The evidence against the appellant (A-16) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimonies of prosecution witnesses including eyewitnesses; and

(iv) documentary evidence.

Conspiracy

737. As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer the same once again.

Confessional statement of Mohd. Farooq Mohammed Yusuf Pawale (A-16)

738. The confessional statement of A-16 under Section 15 TADA has been recorded on 20-5-1993 (1630 hrs) and 22-5-1993 (1645 hrs), by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The appellant, in his confessional statement, has given details about his involvement in the conspiracy. He has given the description of the meetings that he attended. He also described about the training that took place in Pakistan and other relevant details about his own involvement as well as that of the other accused. We have been taken through his entire confession. The following facts emerge from his confessional statement:

(i) He resided at Balmiya Lane, Pamkar Chawl, Room No. 8, Wanjewadi, Mahim, Bombay and worked as a driver at Anees Travels, Mahim.

(ii) He stated that he knows Javed Chikna (AA), resident of Mahim for the last five years (as on the date of confession) and who is a goon and has also committed murder. He further stated that he also knew the friends of Javed Chikna i.e Usman, Nasir Dakhla and Parvez Zulfikar Qureshi who were also criminals.

(iii) On 7-2-1993, Javed Chikna called him and asked whether he could drive a jeep for him and whether he could take two days' leave. He (A-16) agreed and said that he would take leave for two days.

(iv) Next day i.e on 8-2-1993/9-2-1993, he accompanied Usman to Bharat Training School where he saw Javed Chikna, Nasir Dakhla and Parvez. Two blue-coloured jeeps arrived there after about half an hour. Javed Chikna sat in one jeep and A-16, Shaikh Ali, Parvez, Nasir Dakhla and Usman sat in another jeep which stopped at Vashi. He got down at that time and saw that Munna, Bashir, Anwar Theba (AA) and two other persons were sitting in the other jeep. He identified Anwar and Bashir because they used to visit Javed Chikna. Usman told him the name of Munna.

(v) He along with Munna, Anwar and other co-accused assisted Bhai alias Tiger Memon in the landing of 84 bags. He mentioned that it was dark and they were prohibited from lighting even a matchstick. This shows that the bags contained explosive material and they did not want to take any risk.

(vi) He was given a plastic bag containing two pistols for his safety by Tiger, after that they searched for the tempo which was carrying their material.

(vii) On 10-2-1993, he along with five other persons left Bombay and reached Dubai.

(viii) On 13-2-1993, he along with six other co-accused persons was sent to Islamabad, Pakistan by Tiger Memon.

(ix) On 16-2-1993, he was taken to the training spot where he was given seven days' training in dismantling and handling of arms, use of bombs, hand grenades and chemical bombs. He further stated:

“The next day we were given training in dismantling and re-assembling the rifles and pistols and the use of the bombs. The second day, we were given physical training and handling of pistol and rifle. We were also given training in firing.”

(x) On 27-2-1993, he was taken back to Islamabad and on 1-3-1993 to Dubai.

(xi) In the evening on 3-3-1993, he along with five others, returned to Bombay from Dubai.

(xii) On 7-3-1993, he attended a meeting along with Irfan and other accused persons at Khar in which Tiger told him that he was going to cause riots in Bombay and asked him to work with Salim Mujahid and Irfan.

(xiii) On 10-3-1993, he collected one white safari suit for himself, a blue-coloured suit for Irfan and a biscuit-coloured suit for Salim.

(xiv) On the same day, A-16, Irfan and Salim wearing their respective suits surveyed Air India Building, Nariman Point in a red Maruti 1000 car driven by the appellant (A-16). The appellant stopped the car, came out and saluted the said two companions. Then he took them to the Saudi Consulate and Maker Tower. At about 1.30 p.m, they visited the Stock Exchange building where he parked the car in the parking lot. Irfan got down earlier, while Salim got down at the parking place. On objection being raised by the watchman, A-16 took the vehicle out of the parking lot.

(xv) On the same day, in the evening, he along with others attended the meeting at Bandra behind Bhabha Hospital whereby Tiger distributed Rs 5000 to each one of them and asked them to work without fear.

(xvi) On 12-3-1993, he was paid Rs 5000 by Javed Chikna who handed over to him a white Ambassador car to park it at the spot near Air India Building which was earlier surveyed by them. He also took one pistol and rounds from Javed which he hid in his shirt.

(xvii) A-16, who was wearing a white safari suit, took the Ambassador car and left it near Bank of Oman near Air India Building.

(xviii) At that time, he was picked up by Irfan Chougule along with Salim Rahim Shaikh (A-52), who was in a blue-coloured Maruti car and he was, thereafter, dropped at Sachivalaya (Secretariat).

(xix) He handed over the pistol and rounds (ammunition) to A-52.

(xx) He was taken by Usman in a Maruti 800 car to Sena Bhavan junction where Usman parked the car at the nearby petrol pump.

(xxi) In the evening, he told Bashir (A-13) that he had parked one vehicle near Air India Building which caused the blast.

(xxii) The next day, he came to know that the Memon's building (Al-Hussaini) was raided by the police.

(xxiii) On 14-3-1993, on the advice of Rafiq, he went to Siraz Saloonwala at Mumbra and stayed there for seven days and, thereafter, to his relative Tauji Ahmed at Kalva for two days and then to Uran from where he was arrested from the residence of his relative Fusa Kumbi.

739. The appellant herein was involved in the blasts that took place in three places, namely, Air India Building, Shiv Sena Bhawan and the Stock Exchange. It is submitted that in these three blasts 108 people were killed, 314 were injured and property worth Rs 7.7 crores was destroyed. From the overt acts committed by the appellant herein, it is discernible that the appellant was fully conscious of the conspiratorial design and has actively and willingly participated in the conspiracy.

Confessional statements of other co-accused

740. A perusal of the above confession by the accused shows that the appellant was playing a key role in furtherance of the abovesaid conspiracy. The other accused, in their confessions under Section 15 TADA have also discussed the role played by A-16 in the conspiracy. The confessions of the co-accused persons are as follows.

Confessional statement of Asgar Yusuf Mukadam (A-10)

741. The confessional statement of A-10 under Section 15 TADA has been recorded on 23-4-1993 (1800 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said accused has stated that the appellant (A-16) along with Parvez Nazir Ahmed Shaikh (A-12) and Salim Rahim Shaikh (A-52) left for Dubai on 10-2-1993/11-2-1993 when he (A-16) was picked up along with the said two associates by A-10 from Midland Hotel and were dropped at the airport. This statement corroborates with the confession of the appellant, who too had stated that he went to Dubai on 10-2-1993.

Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)

742. The confessional statement of A-29 under Section 15 TADA has been recorded on 18-5-1993 (1830 hrs) and on 21-5-1993 (1445 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

(i) A-16 was present in the training camp in Pakistan when Shahnawaz, Abdul Kadar Qureshi (A-29) and others reached there.

(ii) They received training in handling of arms and explosives in Pakistan.

Confessional statement of Zakir Hussain Noor Mohammed Shaikh (A-32)

743. The confessional statement of A-32 under Section 15 TADA has been recorded on 16-5-1993 (1125 hrs) and 19-5-1993 (1730 hrs) by Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

(i) A-16 went to Dubai along with other co-accused.

(ii) They (including A-16) received training in handling of arms and ammunition in Pakistan.

(iii) During his stay in Pakistan, A-16 was renamed as “Faizal” and the accused were not allowed to use their actual names.

(iv) On 3-3-1993, Farooq, Parvez, Salim Mujahid, Salim Dandekar, Irfan and A-32 left Dubai at 1 p.m and came to Bombay.

Confessional statement of Abdul Akhtar Khan (A-36)

744. The confessional statement of A-36 under Section 15 TADA has been recorded on 19-5-1993 (1740 hrs) and on 21-5-1993 (1820 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said accused also stated that A-16 had undergone training in handling arms and ammunition and explosives in Pakistan. This confession, along with the abovestated confessions, establishes that the appellant went to Pakistan to receive training in the use of arms and ammunition and explosives. This further proves that the conspirators were maintaining secrecy and the actions on 12-3-1993 were a result of a pre-planned agreement between the conspirators.

Confessional statement of Feroz alias Akram Amani Malik (A-39)

745. The confessional statement of A-39 under Section 15 TADA has been recorded on 19-4-1993 (2230 hrs) and on 23-4-1993 (2050 hrs) by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

(i) A-16 had received training in the use of arms and ammunition and handling of bombs in Pakistan.

(ii) The trainees were told that they have to place the bombs in the trains in Bombay and explode them to cause harm to Hindus and also that whatever they were doing, they were doing it for Islam.

The confessional statement of A-39 establishes that the conspirators were well aware of the motive of the conspiracy and had become a part of it and were also fully aware of the consequences of their actions. The training which was imparted to them was for the purpose of causing destruction in Bombay. It is conclusively established from this confession that all the accused who went for training in Pakistan were fully aware of the conspiracy and its motive.

Confessional statement of Nasim Ashraf Sherali Barmare (A-49)

746. The confessional statement of A-49 under Section 15 TADA has been recorded on 16-5-1993 (0930 hrs) and on 18-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) and said that A-16 joined him with his assumed name as “Faizal” in Pakistan and received training in using pistols, AK-56 rifles, machine guns, hand grenades, RDX, detonators, pencil timers, etc.

Confessional statement of Salim Rahim Shaikh (A-52)

747. The confessional statement of A-52 under Section 15 TADA has been recorded on 15-4-1993 and on 18-4-1993 by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. The said accused also referred to the involvement of the appellant (A-16) in the conspiracy at various stages. From the statement of A-52, the following facts emerge regarding the appellant which are as follows:

(i) On 11-2-1993, he along with the appellant and others left Bombay and reached Dubai.

(ii) On 12-2-1993, he along with others stayed in a building opposite to Hotel Al-Khaleez where Tiger Memon met them.

(iii) On 13-2-1993, he along with the appellant attended the meeting in the same building in which Javed Chikna and Tiger Memon talked about the communal riots of Bombay and Gujarat.

(iv) On 14-2-1993, he along with other accused left Dubai and reached Islamabad where they were taken to the training camp and were given training in firing arms, handling LMG rifles, throwing of hand grenades, use of RDX, detonators and timer pencils. He further stated as follows:

“We were given the training of firing with pistol. The pistol was loaded with one magazine. We were taught about opening and assembling of LMG. We were taught about firing with LMG rifles. The fourth day, we learnt about firing of rifles. Thereafter, we were given the training of throwing hand grenades. There were two persons for our training, one was Pathan and another was aged 50 years. Both were about 45-50 years old.”

(v) A-52 also stated that they were told about “black soap named RDX”.

(vi) A-52 further explained about the object and the motive of the training. He stated as follows:

“Tiger also came there on the seventh day of our training. He also took training. He told all of us, ‘Take good training, you have to do good work in Bombay as per this training.’ During the last two days, the training of hand grenades with weight, without weight and with detonators was given. We were also told about black soaps named RDX. Time pencil was also shown. The red-coloured pencil used to burst in 15 minutes and the white-coloured pencil used to burst in one hour and the green-coloured pencil used to burst in two-and-a-half hours. We threw the pencils by using detonators.”

(vii) On 28-2-1993, at Dubai, he had taken oath along with all the other members by placing their hands over Quran for not disclosing anything about the training to anyone and to take revenge for the loss caused to their persons. He further stated:

“They had also given us the oath of causing loss to those persons who had caused loss to our persons and burnt them in Bombay.”

(viii) On 3-3-1993, he along with the appellant and other co-accused left Dubai and reached Bombay.

(ix) After returning from Dubai, on the third day, the conspirators met at the house of Babloo. All those who received training in Pakistan were present in the meeting. In this meeting, it was decided that the blasts in Bombay would be caused after Ramzan.

(x) All the trainees, along with other co-accused attended a meeting in a flat at Bandra where they were divided in groups by Tiger Memon.

(xi) On 11-3-1993, at night, A-16 along with other co-accused was present in the garage of Al-Hussaini Building i.e at the residence of Tiger Memon where the vehicles were loaded with RDX for causing bomb blasts.

748. A-52's confession further proves the fact of training in Pakistan and that the accused went to Pakistan via Dubai. It also proves the extent of training that was given. The taking of oath on holy Quran has also been proved. It also establishes the motive of the conspirators which was to cause destruction and havoc in achieving their ultimate goal. He also stated about the meetings that took place at the house of Babloo and at a flat in Bandra after the conspirators returned from Dubai. He also proved that the appellant (A-16) was present in Al-Hussaini Building when the vehicle bombs were being prepared.

Confessional statement of Shaikh Ali Shaikh Umar (A-57)

749. The confessional statement of A-57 under Section 15 TADA has been recorded on 19-4-1993 (1200 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A-57 went to meet Javed Chikna on 8-2-1993/9-2-1993 at the Soda Factory. He said that at that time, Usman, Nasir, Farooq and some other people were also present there. This incident was related to the meeting before the landing at Shekhadi.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

750. The confessional statement of A-64 under Section 15 TADA has been recorded on 22-1-1995 and on 24-1-1995 by H.C Singh (PW 474), Superintendent of Police, CBI/SPE/STF, New Delhi. The said accused referred to the role of the appellant (A-16) in his confession as follows:

(i) He described the meeting near Soda Factory wherefrom all the participants (including A-16) went for the first landing at Shekhadi.

(ii) On the way to Shekhadi, the accused stopped at a place where Abdul Gani had brought a black-coloured bag which contained five AK-47.AK-56 rifles, revolver, magazines and cartridges.

(iii) Around 60-70 large packets were smuggled by them.

(iv) After the second landing, he transported smuggled arms and explosives from Hotel Persian Darbar to Mumbra with the appellant (A-16). On the way, the conversation between Tiger Memon and his associates revealed that the arms were to be used to take revenge against the demolition of Babri Masjid. These arms were to be used against Hindus. The wires brought in his jeep to Waghani Tower were to be used in the bomb blasts at Bombay.

(v) A-16 was present at Al-Hussaini Building during the preparation of vehicle bombs in the night of 11-3-1993/12-3-1993 by using RDX which had landed at Shekhadi.

(vi) A-16 was seen going to Al-Hussaini compound in the morning of 12-3-1993 wearing a white uniform as a driver.

751. The abovesaid confessional statement of A-64 proves that the appellant (A-16) was involved in the landings which took place in Shekhadi. It is also established that the motive of the conspiracy was known to the conspirators and the claim/contention of the appellant that the motive was not known to them is without any basis. The statement also further established that the appellant was present at Al-Hussaini Building on the night when the RDX was being filled in the vehicles for their preparation as vehicle bombs.

Confessional statement of Mohd. Rafiq Usman Shaikh (A-94)

752. The confessional statement of A-94 under Section 15 TADA has been recorded on 14-5-1993 (1830 hrs) and on 16-5-1993 by Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

(i) A-94 told about the presence of the appellant when they were waiting to go to Pakistan for training.

(ii) On 14-3-1993, A-16 met A-94 and told him that the bomb blasts have been caused by Tiger Memon. He told Rafiq to escape to Mumbra with him and, accordingly, both of them went to Mumbra.

(iii) A-16 also told A-94 that he had parked the white Ambassador car which was laden with RDX/explosives at Air India Building.

(iv) A-94 and A-16 were arrested by the police. A-94, in his confession stated that the police had come to his house along with the appellant.

Confessional statement of Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98)

753. The confessional statement of A-98 under Section 15 TADA has been recorded on 17-5-1993 (1430 hrs) and on 20-5-1993 (1130 hrs) by Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

(i) A-98 admitted that he had received training in handling of different types of arms and ammunition, hand grenades and making of bombs by using RDX. He said that A-16 also took training with him in Pakistan. He further stated as follows:

“The training included P.T and exercise from 700-800 hrs and from 9.00 a.m to 1.00 p.m dismantling, reassembling and manner of firing of pistols, AK-56 rifles, LMG, etc. After 3-4 days, seven boys had also joined whose names were Javed Chikna alias Ali, Usman alias Nasir, Farooq alias Faizal, Zabir alias Shakir, Salim alias Mujahid, Parvez alias Qureshi and Salim Driver alias Irfan. They had their training together with us….

During the training period they also gave the training in hand grenades, RDX, detonators, safety fuse, electric detonators and timer pencil. They told us on blackboard about making of a bomb by using RDX. After 1-2 days there came a bearded person with Ahmedbhai. All the other boys were calling that bearded man as Tiger. He got the details of the training for 2 days.”

(emphasis supplied)

(ii) On 1-3-1993, after reaching Dubai, A-16, who had gone for training at the instance of Tiger took an oath by placing his hands on Quran. A speech was given by Tiger regarding the riots in Bombay and about taking revenge.

754. The confession of A-98 along with that of A-52 proves that the accused knew about the black soap which is an explosive viz. RDX. It is established beyond doubt that during the training, the accused were taught how to use the detonators, hand grenades, timer pencils as well as RDX. The confessional statement further establishes that the accused were taught how to make bombs using RDX.

Confessional statement of Mohd. Parvez Zulfikar Qureshi (A-100)

755. The confessional statement of A-100 under Section 15 TADA has been recorded on 15-4-1993 (2330 hrs) and on 17-4-1993 (1700 hrs) by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

(i) He disclosed the participation of the appellant in the landing of smuggled items of Tiger Memon on 9-2-1993 at Shekhadi coast and thereafter in transportation of the said consignment to Waghani Tower and other places.

(ii) He participated in the training of firearms and ammunition at Islamabad, Pakistan along with his associates during February 1993.

(iii) On 2-3-1993, he came back to Dubai where Tiger Memon gave 200 Dirhams to each one of them and administered oath on Quran to take revenge against Hindus for demolition of Babri Masjid and their tyranny perpetrated on them.

(iv) He was present at the residence of Tiger Memon in the night of 11-3-1993/12-3-1993 along with other co-accused when the explosives were being filled in the vehicles which were brought for the said purpose.

756. From the confessional statements made by different co-accused, the following facts emerge:

(i) A-16 had gone for training in handling weapons and explosives to Pakistan via Dubai along with other accused;

(ii) A-16 was given fake name as “Faizal” which was used in Pakistan while training;

(iii) A-16 was fully aware of the conspiratorial design and the plan to cause blasts and destruction in the city of Bombay at a large scale;

(iv) A-16 knew that this was an act of retaliation by the conspirators and he was one of them;

(v) A-16 had also participated in the landing of explosives and weapons at Shekhadi;

(vi) A-16 had attended various meetings between the conspirators;

(vii) A-16 was present at the time of filling of RDX/black chemical in the vehicles at Al-Hussaini Building;

(viii) A-16 had taken oath on holy Quran that he would cause destruction and loss to the Hindu community as a revenge for what had happened on 6-12-1992 (demolition of Babri Masjid) and in the riots that ensued; and

(ix) A-16 was responsible for taking the explosives laden vehicle to the Air India Building and Shiv Sena Bhawan (Lucky Petrol Pump) and causing death and destruction.

757. From the above, it can easily be inferred that A-16 was fully aware and conscious of the fact that their actions were of such a nature that they had to keep the conspiracy a secret and the activities done by them were grave. Taking of oath on Quran shows their intent and determination to cause damage and destruction. Their sole aim was to terrorise the people of the country by causing massive and extensive damage to the financial capital of the country and to destabilise the Government of India. From the above confession, it is evident that A-16 had no trace of remorse for the actions committed by him. The very fact that when the appellant fled from Bombay, he also suggested A-94 to do the same which shows their incriminating post-incident conduct. Hence, it is clear that the appellant was well aware of the consequences of his action and played an important role in the conspiracy. We have already held that a voluntary and truthful confessional statement recorded under Section 15 TADA requires no corroboration.

Retracted confessions

758. It has been contended that all the confessions relied upon against the appellant including his own confession have been retracted and therefore, they are not trustworthy. Since the very same objection has already been considered and rejected, we are not repeating the same once again. The said conclusion is applicable to these appeals also.

Deposition of prosecution witnesses

Deposition of Mohd. Usman Jan Khan (PW 2) (approver)

759. PW 2, the approver, has also deposed against the appellant. We have gone through the portion relating to A-16. The deposition of PW 2 with regard to the involvement of A-16 is summarised hereinbelow:

(i) He knew Mohd. Farooq Mohammed Yusuf Pawale as Farooq Pawale (A-16).

(ii) He identified the appellant in the identification parade.

(iii) On 9-2-1993, he met A-16 at the Soda Factory along with other co-accused and went to Waghani Tower where the goods brought in the cars were unpacked by them.

(iv) The gunny bags contained AK-56 rifles, its rounds, hand grenades, pistols, magazines and RDX i.e “kala sabun”. All these items were then kept in the cavities of the jeeps. A box of detonators was also there.

(v) On 10-2-1993, the appellant went to Hotel Persian Darbar along with Tiger Memon.

(vi) The appellant (A-16) also accompanied the approver and other co-accused to Pakistan for training in handling of arms and ammunition and explosives.

(vii) In the training, they were taught how to operate and use AK-56 rifles, pistols, hand grenades and use of RDX for preparing bombs. They were explained that the RDX could be used for exploding and blowing off bridges, trains, dams, etc. They were also shown timer pencils, detonators of different colours which could ignite RDX bombs from a period of half an hour to five hours and were told how to use them. In the evenings, classes were held and they were explained things on blackboard and were also instructed about rocket launcher but were not given firing practice of the same.

(viii) The appellant (A-16) was present in the meeting at Babloo's residence which took place on 8-3-1993 wherein the targets for the explosions were selected and finalised.

(ix) Tiger had called A-16 and two other people in a room to talk to them separately.

(x) A-16 was present in the meeting at the residence of Tiger Memon at Al-Hussaini Building on 11-3-1993/12-3-1993.

(xi) PW 2, along with the appellant, took the white-coloured Maruti 800 car (laden with RDX) and parked it near Shiv Sena Bhawan/Lucky Petrol Pump.

(xii) A-16 had altercations with a Hawaldar (constable) as well as with an employee of the Lucky Petrol Pump regarding the parking of the said car. This fact has been corroborated by the testimony of the prosecution witness.

760. The learned counsel for the appellant placed reliance on para 74 of the deposition of the approver in support of her contention that the accused was only a pawn and was following the directions of his masters. Para 74 reads as under:

“After talking to Tiger Memon on telephone, Javed Chikna and all of us came downstairs. We met Farooq Pawale (A-16). Javed Chikna instructed Farooq Pawale to take one Maruti 800 car to Shiv Sena Bhawan, Dadar and park it near Shiv Sena Bhawan, Dadar. Farooq Pawale requested me to accompany him. I accompanied Farooq Pawale in the white-coloured Maruti 800 car, I drove the Maruti car to Shiv Sena Bhawan. The white-coloured Maruti 800 car was filled with RDX. We were told to park the white-coloured Maruti car near Shiv Sena Bhawan to blow it up.”

761. A-16 participated in the landing and transportation of arms and ammunition and explosives which were smuggled into India at Shekhadi in February 1993. He visited Pakistan via Dubai for receiving training in handling of arms and ammunition and explosives from the agents of ISI to commit terrorist acts in India. He attended conspiratorial meetings during the month of March 1993 at the residence of Babloo alias Nazir Anwar Shaikh and Mobina alias Baya Musa Bhiwandiwala (A-96) for making plans to commit terrorist acts. He also participated along with other co-conspirators in loading the explosives like RDX fitted with time device detonators in various vehicles during preparation of vehicle bombs in the intervening night between 11-3-1993/12-3-1993. He surveyed and conducted reconnaissance of the Stock Exchange Building and Air India Building on 10-3-1993 for causing explosions there. Therefore, it is established that the appellant was well aware of the conspiracy right from the inception and also of the consequences of his acts.

762. It is evidently clear from the participation of A-16 in all the important events and his presence in the conspiratorial meetings that he was an integral part of the conspiracy and knew everything about it. It was not the case that he was merely following the instructions. The testimony of the approver corroborates the confession of the accused as well as confessions of other co-accused in all material particulars. The approver was one of the conspirators and he was a party to all the landings, meetings, training and also went to plant the explosives laden vehicle at Shiv Sena Bhawan. The account of the conspiratorial meetings, training and other events is reliable and fits into the chain of events which has already been established by the confessions of various accused.

Other witnesses

Deposition of Ishwar Haralkar (PW 11)

763. PW 11 was a serviceman at Lucky Petrol Pump. He deposed that while he was on duty on 12-3-1993, at 2.00 p.m, the driver (PW 2) of a white-coloured Maruti 800 car stopped in front of the service station. He further deposed as follows:

(i) PW 11 refused to allow the driver to park the car there as it had not come for servicing in the station. There was an altercation between PW 11 with the person (A-16) sitting next to the driver. Ultimately, PW 2 parked the said car towards the direction of Shiv Shahi Chawl at the side of the petrol pump and left it there. After half an hour, PW 11 heard the sound of a big explosion and saw that the said Maruti car had exploded. He noticed that there was fire and massive damage to the vehicles standing nearby. The cement roof of the service station blew up and fell on him. He was injured and went to the doctor. He noticed complete damage to the service station and the petrol pump.

(ii) PW 11 identified PW 2 in the identification parade dated 11-5-1993 conducted by the Special Executive Magistrate, Ram S. Bhosale (PW 460) and he again identified PW 2 as well as A-16 in the identification parade dated 23-5-1993 conducted by SEM Moreshwar Thakur (PW 469).

(iii) The witness also identified the appellant (A-16) in the court.

764. It has been contended by the counsel for the appellant that the person (A-16) sitting next to the driver got off before the white-coloured Maruti 800 car was parked at the side of the Lucky Petrol Pump. On the basis of this, the counsel submitted that A-16 was not responsible for the blast that took place at the petrol pump. It is submitted that even though the accused (A-16) was not the last person to leave the car but most certainly he went with the other person who was driving the car (PW 2) to plant the bomb at the said petrol pump. It is further submitted that A-16 had to get down from the car only because PW 11 did not permit the parking of the vehicle in front of the said pump. A-16 had gone along with PW 2 to the place where the incident took place for the purpose of planting the vehicle.

765. It has also been contended on behalf of the appellant that the height of A-16 has not been recorded and so PW 11 is not a reliable witness. It was submitted by the counsel that the witness has stated:

“My statement recorded on 12-3-1993 was read over and explained to me after it came to be recorded and found that it was correctly recorded. (The attention of the witness is drawn to his statement dated 12-3-1993.) In my statement recorded by the police on 12-3-1993 there is no mention of the height of the person who was sitting by the side of the driver. I cannot assign any reason why it is not recorded. According to me the colour complexion of a person would be important in describing him. In case of the person whom I noticed sitting by the side of the driver in the Maruti car on 12-3-1993, his colour complexion was an important feature and not his shortness.”

Therefore, in view of the above statement, the witness was conscious of the fact that the height was not recorded in the earlier statement. It was submitted from the side of the prosecution that for identifying the accused, it was not his height which was important but it was his colour and complexion which was important.

766. The witness (PW 11) has further deposed that the statement was read over to him and he found it to be correct. It cannot be contended by the appellant that merely because the height of the accused was not mentioned in the earlier statement, the witness is unreliable. PW 11 has, in fact, identified the accused A-16 and therefore his testimony is reliable. It was further contended on behalf of the appellant that since PW 11 was an injured witness, the doctor who treated him should have been examined and his non-examination would result in discrediting the witness.

767. The witness (PW 11) has given accurate description of the accused and the approver (PW 2) has identified them. The testimony of the witness is corroborated by the evidence given by the accused, the approver and other witnesses. It is also mentioned in his statement that he did not suffer any bleeding injuries. Since the witness was not seriously injured, there was no need for him to be admitted in a hospital and for the investigating officer to examine any doctor in this regard. Hence, the contention of the appellant is without any basis.

Deposition of S.S Hande (PW 12)

768. PW 12 was a police constable attached to Dadar Police Station. On 12-3-1993, he along with PC 13196 was on duty at Shiv Sena Bhawan. He is an eyewitness to the incident. PW 12 deposed as under:

(i) Around 2 p.m, PW 12 had an altercation with A-16 who was sitting next to the driver (PW 2) of white-coloured Maruti car with regard to the parking of car near Shiv Sena Bhawan. The driver (PW 2) took the car away from there and ultimately parked it near the compound wall of service station after some discussion with an employee of Lucky Petrol Pump. After parking the vehicle, both A-16 and PW 2 left the place.

(ii) He further deposed that after sometime an explosion occurred and there was lot of smoke in the area and many vehicles and buildings were damaged.

(iii) PW 12 identified PW 2 and A-16 in the identification parade dated 23-5-1993 conducted by SEM Moreshwar Thakur (PW 469) who prepared the memorandum panchnama, Ext. 1519 for the same.

(iv) The witness also identified the appellant (A-16) in the court.

769. It was submitted by the counsel for the appellant that this witness, PW 12 has deposed that A-16 had an altercation with him regarding parking of the car. Thereafter, he saw them talking to an employee of the Lucky Petrol Pump. After some time, the person sitting next to the driver got down from the car. Here again, it was contended that A-16 was not there until the car was parked and so he was not responsible for the blast that took place at the Lucky Petrol Pump. In view of the above, it is contended that even though he did not finally park the car, his intention was to cause the blast and he got down from it only because of the altercation. A-16 was an equal participant in the planting of the car at the place of the blast.

770. The learned counsel for the appellant has placed para 5 in which the accused has been identified by the witness and para 8 where the distinguishing marks on the face of the accused have been described by the witness. This supports the case of the prosecution that the eyewitness has correctly identified the accused and, therefore, the accused can be placed at the scene of crime on the date and time of the incident. However, the counsel has not pointed out para 312 from the statement of PW 2 which reads as “I told Farooq Pawale to get down and go ahead and engage a taxi for us, as stated in my evidence before the court.” It is thus established that the testimony of the witness is reliable and also the fact that the accused had gone to the site of the explosion along with PW 2 in the car in which the explosion took place. The evidence given by PWs 11 and 12 corroborate the evidence given by the accused himself and the approver.

771. The learned counsel for the appellant also submitted that PWs 11, 12 and 2 have given different versions of the story which are contradictory and thus their statements cannot be relied on. The statements of all the witnesses and the confession of the accused, if read as a whole, do not give any contradictory or conflicting account, in fact, they corroborate each other.

Deposition of Jagannath B. Patil (PW 668)

772. PW 668 was a police officer who visited Lucky Petrol Pump after the blast in the presence of two panch witnesses Sudhakar Kadam and Kallapa. He drew a panchnama and seized ten articles viz. Articles 549-A (colly) to 558-A (colly) in and around the site of explosion. These articles included burnt pieces of tar, burnt pieces of wood and mud from the ditch created due to the explosion. PW 668 also collected samples/articles vide panchnama, Ext. 2460 in the presence of panch witness, Kiran Padhrinath Deshmukh (PW 666). A panchnama was prepared in respect of articles taken by the Assistant Chemical Analysers from the site of the blast near Shiv Sena Bhavan in Dadar.

Deposition of Anil Kumar V. Kamat (PW 669)

773. PW 669 was the person who sent articles like burnt pieces of bones, skull, branches of trees, etc. to FSL for its opinion and has also deposed about the injuries to the persons and the deaths of the persons on account of explosion at Lucky Petrol Pump. The reports sent by FSL confirm the traces of RDX which were present in the objects collected from the scene of the blast.

Deposition of Fazal Fruitwala (PW 363)

774. PW 363 was a car broker. In July, 1990, Salim Abdul Gani Gazi (AA) had approached him for purchasing a new white-coloured Maruti 800 car. PW 363 inquired with Shakil Hasam of Auto Links. He informed Salim Gani that the car was available. As asked by Shakil Suleman on 12-7-1990, the delivery order was taken from M/s Sai Service Station. The car was in the name of the original purchaser Sultan Ali. On the same day, at 7 p.m, Salim Gani had paid Rs 1,40,000 inclusive of brokerage. PW 363 had asked Salim Gani to take delivery from Daman Stockyard. After deducting the brokerage, PW 363 sent the price of the car to Shakeel Hasam. The vehicle i.e the white Maruti car used for the explosion was purchased by Salim Abdul Gani Gazi (AA) in July, 1990 through PW 363 and Shakeel S. Hasam (PW 366). The car was given Registration No. MH 03 A 2143. The registration of the car was done under a fictitious name which is proved by the evidence of PW 329 who was a postman in the locality concerned.

Deposition of Sadanand S. Paradkar (PW 329)

775. PW 329 was a postman and was in the service of Ghatkopar Rajawadi Post Office in the year 1993. It was deposed by him that Garodia Nagar did not have any building by name of Manohar Apartment and, hence, there was no question of any person by name Sultan Ali residing in Flat No. 8, on the second floor of the said building. His deposition proves that the registration of the car was done under a false identity.

Deposition of Sudhakar D. Kadam (PW 445)

776. PW 445 was a petrol-filler at the Lucky Petrol Pump. On 12-3-1993, at 5 p.m, he went to the petrol pump as he was posted in the second shift i.e from 5 p.m to 12 a.m He found that the atmosphere was smoky; the roof of the service station was missing; the petrol pump was partly burnt and the articles and parked vehicles were partly or fully burnt. There was a big hole on the second floor wall of the building. He further deposed that damage was also caused to the buildings behind the petrol pump and things in its vicinity. He also gave the information regarding the situation of petrol pump and its vicinity in the presence of panchas. He further deposed that the police had correctly drawn the panchnama, Ext. 1431 dated 12-3-1993.

Injured witnesses

777. It was pointed out that around 50 people suffered injuries due to the explosion which took place at Shiv Sena Bhawan/Lucky Petrol Pump. The following witnesses have deposed about the injuries suffered by them on account of the explosion at the Lucky Petrol Pump on 12-3-1993:

(i) Sudhir Shankar Chandrorkar (PW 408) — sustained bleeding injuries due to the pieces of iron which had pierced into his body at various places.

(ii) Lallan S. Pandey (PW 409) — suffered various bleeding injuries and his left leg had to be amputated from the thigh region, and

(iii) Ankush K. Sawant (PW 308) — suffered bleeding injuries due to striking of plastic splinter on his left thigh.

778. The following doctors have deposed with respect to the injuries suffered by the aforestated injured witnesses:

(i) Dr Vijay Madhav Deshmukh (PW 631) — He is the person who prepared the medical certificate for PW 408.

(ii) Dr Sunil Raghunath Rai (PW 633) — He is the person who prepared the medical certificates for PWs 409 and 308.

The said witnesses (doctors) proved to have issued the medical certificates, Ext. 2348 in respect of the abovementioned injuries.

779. The following claimants have claimed the dead bodies of their son (Shri John Thomas) and cousin sister (Smt Mamta Surendra Pilankar) respectively who died on account of the explosion at Lucky Petrol Pump:

(i) Thomas Itiyavira Modabamkunnel (PW 427) and;

(ii) Nitin Vasant Parkar (PW 410).

780. Four persons died in the blast that took place at Shiv Sena Bhawan. Kishore L. Sawant (PW 568) — has prepared the accidental death reports (ADRs) in respect of the two deceased persons.

(i) Ext. 1967 — ADR No. 19 of 1993 in respect of death of Smt Mamta Surendra Pilankar, cousin sister of Shri Nitin Vasant Parkar (PW 410).

(ii) Ext. 1971 — ADR No. 42 of 1993 in respect of death of Shri John Thomas, son of Shri Thomas Itiyavira Modabamkunnel (PW 427).

781. The doctors who prepared the death report certificates in respect of the deceased are:

(i) Dr Walter G. Vaz (PW 476) — prepared the death certificate of John Thomas, son of Thomas Itiyavira Modabamkunnel (PW 427);

(ii) Dr Anand P. Desai (PW 477) — prepared the death certificate of Mamta Surendra Pilankar who was the cousin sister of Nitin V. Parkar (PW 410).

782. The articles seized from the scene of the blast that took place at Shiv Sena Bhawan were sent to the Forensic Science Laboratory for opinion vide Ext. 2447 and Ext. 2469. FSL reports received in respect of the said letters are Ext. 2447-A and Ext. 2448. The reports prove that the articles found at the scene contained traces of highly explosive substance “RDX”. It was further found that the clothes were stained with human blood and had traces of RDX as well. The aforesaid evidence establishes the fact that the appellant planted the vehicle bomb at the site of the explosion and massive damage was caused to life and property due to his actions.

Witnesses regarding the incident at the Air India Building

Deposition of Vilas Vyankatesh Kulkarni (PW 10)

783. He is an eyewitness to the incident. He deposed with respect to the explosion at Air India Building and the Ambassador car which exploded causing damage.

(i) He was the owner of MAFCO Farm Fair Shop. On 12-3-1993, at about 12 noon, while going to his shop, he noticed a white-coloured Ambassador car bearing No. MH 20 TR 622 parked abutting the footpath and opposite to the footpath at the rear gate of Bank of Oman. In the tunnel, the driver alighted from the car and locked it. He stood near the car and at the same time noticed another Contessa car entering the tunnel from the eastern side in reversed position.

(ii) He also saw a blue-coloured Maruti 800 car stopped 5 to 6 ft away from him and the person sitting by the side of the driver called the driver of the white-coloured Ambassador. They then left together in a blue-coloured Maruti 800 car.

(iii) Around 2.40 p.m to 2.45 p.m, PW 10 reported hearing a deafening sound from the Air India Building. He saw the white Ambassador car 5 ft to 6 ft up in the air. He also noticed black smoke rising from the tunnel and heard falling of glass pieces. After 15 minutes, he saw a big crater formed at the place where the white-coloured Ambassador car was parked.

(iv) He also reported that many people were injured and died in the said incident. His shop was also badly damaged and his employees viz. Ganesh and Joginder sustained minor injuries.

(v) He identified A-16 in the identification parade dated 9-4-1993 conducted by the SEM (PW 462) and again he identified A-16 in the identification parade dated 14-5-1993 conducted by the SEM (PW 469).

(vi) He also identified the photographs of the appellant which were marked as Articles 7 and 8 in the parade dated 15-6-1993 conducted by the SEM (PW 469).

784. It was submitted by the counsel for the appellant (A-16) after reading paras 7, 8 and 14 of his deposition that the witness (PW 10) was not able to identify the accused even after being given more chances to identify the accused. It was further contended that there being only one eyewitness, who also could not identify the accused, hence, there is no other eyewitness in the case. It is pointed out that the witness had wrongly identified A-16. It is submitted that the witness understood his mistake and informed that he had wrongly identified the accused. It is relevant to mention that the incident took place on 12-3-1993 and the identification was held in the court on 11-10-1995 i.e after a period of two years, and therefore, the witness could not identify A-16. This cannot be taken to discredit the other facts which have been accurately described by him. The witness had identified the appellant when the parade was conducted by the SEM, however, it is only due to lapse of time that he could not identify the accused again.

Deposition of Fuldas Yadav Bhoye (PW 321)

785. PW 321 was a PSI with Cuffe Parade Police Station at the time of the incident. He deposed regarding the damage caused to life and property at the scene of the blast. He deposed as follows:

(i) On 12-3-1993, at 3 p.m, he along with PI Chaudhary and other staff had been to the Air India Building. He found two cars burning in front of Bank of Oman.

(ii) He further stated in his deposition that the entire atmosphere was surrounded with dense smoke and a crater of size 8 ft × 7 ft had been created in the porch.

(iii) The flooring of the first underground floor also had a similar crater and the second underground floor was visible through the craters that had been formed.

(iv) The building of Bank of Oman had been fully destroyed and there was substantial damage to the offices of Air India, Mauritius and Singapore Airlines.

(v) He further deposed that three cars bearing Registration Nos. BLL 904, MH 01 M 5039 and BLN 2933 and motor taxi bearing Registration No. MMT 3075 were completely burnt, leaving behind only the chassis.

(vi) The cars parked on the porch of Air India Building were also damaged.

(vii) Six dead bodies were removed and sent to JJ Hospital with the help of firemen.

(viii) The injured were taken to GT Hospital and Bombay Hospital.

Deposition of N. Venkatramni (PW 376)

786. PW 376 was the Engineer-in-charge of Air India Building situated at Nariman Point, Bombay. He found that there was extensive damage caused to Air India Building after the blast that occurred in front of the said building. He along with other engineers inspected the site. They appointed specialised valuers “M/s Sunil Vora & Associates” for ascertaining the damage caused to the building. The valuers visited the building in April 1993 and gave a report estimating the damage to be to the tune of Rs 1 crore 51 lakhs.

Deposition of Abbas Husseini Rangwala (PW 377)

787. PW 377 was working with Bank of Oman at the time of the incident. He deposed as follows:

(i) On 12-3-1993, at 2.40 p.m, he heard a big sound like bomb explosion and the ceiling and glass panels fell down. The furniture was damaged, computers worth Rs 10 lakhs were damaged, air conditioning system was totally damaged and two vehicles belonging to the Bank which were parked in the tunnel were fully damaged causing loss of Rs 6 lakhs.

(ii) The Bank lost about Rs 2 lakhs 96 thousand due to sudden interruption in banking operations.

(iii) Twelve employees of the Bank were injured, out of which 2 ladies succumbed to death. In addition, 3-4 customers of the Bank were also injured. Three persons from RBI sustained injuries and later succumbed to death.

(iv) The Bank appointed M/s Bhatavedekar & Co., specialised valuers, to ascertain the damage caused. The report of the valuers assessed the damage to be to the tune of Rs 50 lakhs.

Other witnesses

788. The number of injured people in the blast which took place at the Air India Building was 84 and 20 people had died in the said incident. The following injured persons have deposed as witnesses who were present inside the Air India Building when the blast took place:

(i) Purshottam Narhar Karmarkar (PW 404),

(ii) Madhav Pundalik Patkar (PW 405),

(iii) Sadashiv Gopal Pendse (PW 407).

Their deposition may be summarised as under:

(i) At 2.45 p.m, while waiting for lift in the lobby of Air India Building, they heard the sound of a big explosion which was followed by a blackout.

(ii) The false ceiling of the lobby collapsed and fell on them.

(iii) PW 404 sustained injury in his leg.

(iv) PWs 405 and 407 sustained multiple injuries from splinter glasses also. They were frightened and immediately left the building.

(v) Glass splinters pierced on the right side of the body of PW 405 who was later admitted in Bombay Hospital and discharged on 18-3-1993. PW 404 and PW 407 were admitted in the casualty ward of JJ Hospital and were later shifted to Hinduja Hospital. PW 404 was discharged on 22-3-1993/23-3-1993 and 3-4 days after that PW 405 was discharged.

789. The testimonies of the above witnesses proves the fact that the impact of the blast was massive, causing exponential loss to life and property. These people were present at the scene of the incident and received injuries due to the blast which occurred at the Air India Building. The people inside the building were also hurt by the blast and huge loss was caused to the property.

Deposition of Dr Sanjay Rajendra Agarwala (PW 653)

790. PW 653 was the doctor at Hinduja Hospital and deposed regarding the injuries sustained by PW 404 who was admitted in the said hospital on 13-3-1993. He deposed that the victim had seven to eight injuries; his major injuries included a fracture of left elbow sustained in bomb blast occurred on 12-3-1993. He had to be operated on and was treated and discharged on 24-3-1993. He was again admitted on 2-5-1993 and was discharged on 5-5-1993 after treatment and removal of foreign body “granuloma” from the ring finger of his right hand and the metacarpal region of neck.

Deposition of Dr Rajaram Amrut Bhalerao (PW 646)

791. PW 646 was the doctor at Hinduja Hospital and has deposed regarding PW 407 who was brought to the casualty centre of the said hospital on 13-3-1993. He deposed that the injured was having one major injury towards right side of the neck and multiple abrasions on the neck and face and had suffered loss of blood.

Deposition of Dr Rajkumar Patil (PW 635)

792. PW 635 was the doctor at Bombay Hospital and has deposed regarding PW 405. He deposed that the injured witness was brought to Bombay Hospital on 12-3-1993 and examined by one Dr Gupta. He was admitted in a place where arrangements were made for victims of bomb blasts that had occurred at the Bombay Stock Exchange, Air India Building and Zaveri Bazaar. Dr Patil reported that PW 405 had been treated at the hospital and was discharged on 19-3-1993.

Depositions of Sandeep Prakash Bafna (PW 194) and Prakash Sanchalal Bafna (PW 247)

793. At the relevant time, both were working with Hindustan Motors and Hero Honda Motors respectively. In the month of January 1993, Gulam Rasool (A-58) of Ujjain (M.P) had taken the delivery of an Ambassador car for Rs 1,84,466 from Hindustan Motors whose temporary registration number was MH 20 TR 622. This booking was made through “Sulebhai” [Suleman Lakdawala (PW 365)] of petrol pump at Byculla and Shakeel Suleman of Auto Links. PW 194 identified the photograph (Article 377-A) of Gulam Rasool in the identification parade held at Police Headquarters conducted by SEM Shri Vichare (PW 247) and also identified the photograph (Article 382-B) in an identification parade held at the office of DCB-CID conducted by SEM PW 469. Thus, the place from where the car was purchased was located and the witness identified the person who had bought the car.

Deposition of Suleman Lakdawala (PW 365)

794. PW 365 deposed that Shafi Zariwala (AA) told him that he required three new Commander jeeps bearing registration number of Gujarat State during February/March 1993. PW 365 contacted Shakeel Suleman Hasham, who informed that the cars with registration number of Madhya Pradesh were available. Shafi (AA) agreed to buy those cars. Suleman Lakdawala also arranged for one white Ambassador car for Shafi. This would further be established by the evidence of PW 366.

Deposition of Shakeel Suleman Hashan (PW 366)

795. In his deposition, he stated that he (PW 366) introduced PW 365 with the car agency by name “Kailash Agencies”. PW 365 had taken the said car from the said agency and delivered it to Shafi Zariwala (AA).

Deposition of Mukhtar Imdad Ahmed (PW 281)

796. PW 281 deposed that he had been asked by Shafi (AA) to prepare cavities in between the rear seat and fuel tank of the white Ambassador car bearing Registration No. MH 20 TR 622. It is pointed out that it was this car which was used to cause the explosion outside the Air India Building. It is further pointed out that all these witnesses prove that the car which was used by the appellant for the blast was bought by the other co-accused. It has been established that Shafi Zariwala was a close associate of Tiger Memon. The depositions of these witnesses establish the link between all the evidence leading to the appellant (A-16) and the incident of explosion that took place on 12-3-1993.

Deposition of Ashok Budhavale (PW 614)

797. PW 614 was working in Worli Police Station as an API in the year 1993. It was contended that the police officer did not remember whether he had made entries in the station diaries while taking the accused out for test identification parade and while bringing them back. It was also contended that his senior officer PI Pharande had not given him any written orders for taking the accused out of the custody and so the test identification parade is vitiated as the procedure was not followed. It is relevant to note regarding the entries to be made in the diary that the officer had deposed that he did not recollect whether he had made the entry or not and with respect to the communication between the API and the PI, it is pointed out that the API had received oral instructions from his superior and there was no requirement of any written orders.

Deposition of Madhukar Baburao Gathade (PW 535)

798. In the year 1993, he was attached as a PI with DCB-CID, Unit IX. In his deposition, he mentioned that he did not remember as to how many letters of sanctions were sent to him by the District Magistrate. The counsel for the appellant submitted that he did not grant any sanction and even if he did, the sanction was not granted on due application of mind by the District Magistrate. It is pointed out that the deposition of the witness was made on 6-12-1999 i.e six-and-a-half years after the incident. It is not possible for all the witnesses to remember all the details of all the events that took place during the trial. It is further submitted that the investigating officer had written a letter to the District Magistrate explaining the circumstances in which his sanction was sought to prosecute under the provisions of the Explosive Substances Act.

Deposition of Ramalingam Nadar (PW 349)

799. PW 349 acted as a panch witness in the search that was conducted at the house of A-16. It was submitted by the counsel for the appellant that the witness did not know English and the statement and panchnama were recorded in English and the driving licence was also in the English language. It is pointed out that the witness deposed that the document was explained to him in Hindi and he found the contents to be true. The contention of the counsel for the appellant stands negatived.

Deposition of Nagesh Lohar (PW 356)

800. PW 356 was working with Unit I of DCB-CID and went to the house of A-16 when the search was made. It was submitted by the counsel for the appellant that no personal search of the members of the raiding party was conducted by the panch witness when they went to search the house of A-16. The witness deposed that a personal search was conducted; however, he did not record it in the panchnama due to oversight. He deposed that he did not realise that it had to be recorded till the time he was questioned for it.

Deposition of Rajan Dhoble (PW 585)

801. In the year 1993, he was attached with DCB-CID, Unit I as a PI. The counsel for the appellant submitted that the same person was acting as a witness in investigation taking place at two places of incident i.e Air India Building and the Stock Exchange and, hence, was not a reliable witness. It is pointed out by the other side that there is no prohibition that a police inspector cannot investigate two matters at the same time.

Evidence of witness regarding the incident at the Stock Exchange

Deposition of Ashok Kamble (PW 24)

802. PW 24 was a security guard at the Bombay Stock Exchange Building. He is an eyewitness to the incident. His deposition revealed that on 10-3-1993, the appellant along with other accused persons had entered the Stock Exchange building for parking the said red-coloured Maruti 1000 car. PW 24 identified A-16 in the court at the time of his deposition as well as in the TIP dated 11-5-1993 and 8-6-1993 conducted by the SEMs PW 458 and PW 469 respectively. In view of the above, it was submitted that the deposition of PW 24 establishes that the appellant had been to the Stock Exchange Building prior to the blasts for the purpose of surveying the targets.

Deposition of Brijmohan Mehra (PW 458)

803. PW 458 was the SEM who conducted the TIP with regard to the accused A-16 for PW 24. It was submitted by the counsel for the appellant that the SEM was neither aware of the guidelines nor had he seen the rules framed by the High Court of Judicature of Bombay regarding the precautions to be taken by a person conducting the TIP. It is relevant to note that the Government of Maharashtra had not issued as such any guidelines but had given the draft memorandum for identification parade. Therefore, it is established that the procedure which was required to be followed was known to the SEM and he had conducted it in accordance with the same.

804. A perusal of the entire evidence above establishes the guilt of the appellant (A-16). The confession of the appellant gives the details of all the important events that took place during the time when the conspiracy was in its nascent stage. The appellant (A-16) was involved in the landing of arms and ammunition and explosives; he went to Pakistan for training in using arms and making explosives; attended crucial conspiratorial meetings; went to survey the targets; was also present in the meeting when the targets were being finalised; and in addition to all these actions, he planted explosives laden vehicles at two locations and went to survey the third location.

805. All these events have been narrated by the co-accused also and the presence of the appellant has been narrated in the confessions of many co-accused including the ones who were an integral part of the plan. The evidence given by the approver and eyewitnesses also corroborate the fact that the appellant had planted explosives at two locations and had surveyed the third place.

806. The evidence of the approver, the eyewitnesses, experts and other witnesses above clearly establish the involvement of A-16 in the explosions that took place at the Stock Exchange Building, Air India Building and Shiv Sena Bhawan. It is established that A-16 was an active member of the conspiracy which led to the blasts at various places in Bombay and caused many deaths, injuries and loss to property.

807. The evidence given by the doctors and the family members of the deceased show the extent of suffering that was inflicted by A-16 and the other accused in pursuance of the conspiracy. The quantity of RDX that was used in the blasts clearly shows and establishes the fact that the blasts were intended to tear the economic, moral and social fabric of the nation and to induce communal tensions. The involvement of the appellant in the entire conspiracy establishes the critical role played by him in the blast.

808. In view of the abovesaid confessional statement of the appellant (A-16), the confessional statements of other co-accused persons, as also the eyewitnesses along with other witnesses duly examined, the prosecution has produced sufficient evidence against the appellant to bring home the charges framed against him.

Terrorism

809. The term “terrorism” is a concept that is commonly and widely used in everyday parlance and is derived from the Latin word “terror” which means the state of intense fear and submission to it. There is no particular form of terror, hence, anything intended to create terror in the minds of general public in order to endanger the lives of the members and damage to public property may be termed as a terrorist act and a manifestation of terrorism. Black's Law Dictionary defines terrorism as:

“Terrorism.—The use or threat of violence to intimidate or cause panic, esp. as a means of affecting political conduct.” (8th Edn., p. 1512.)

810. Terrorism is a global phenomenon in today's world and India is one of the worst victims of terrorist acts. Terrorism has a long history of being used to achieve political, religious and ideological objectives. Acts of terrorism can range from threats to actual assassinations, kidnappings, airline hijackings, bomb scares, car bombs, building explosions, mailing of dangerous materials, computer based attacks and the use of chemical, biological, and nuclear weapons—weapons of mass destruction (WMD).

811. The fight against terrorism requires a concerted and multifaceted strategy at both the domestic and international levels and should involve a legal order which itself needs to be updated and elaborated upon and should hence be turned into a practical tool. There exist several domestic and international legislations to counter terrorism. The Terrorist and Disruptive Activities (Prevention) Act, 1985 (31 of 1985) which received the assent of the President on 23-5-1985 and was published in the Gazette of India, Extra., Part II, Section 1, dated 23-5-1985, came into force on 24-5-1985 in the whole of India for a period of two years. The Statement of Objects and Reasons of the said Act reads as follows:

“Prefatory Note—Statement of Objects and Reasons.—Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigarh. Since 10-5-1985, the terrorists have expanded their activities to other parts of the country i.e Delhi, Haryana, Uttar Pradesh and Rajasthan as a result of which several innocent lives have been lost and many suffered serious injuries. In planting of explosive devices in trains, buses and public places, the object to terrorise, to create fear and panic in the minds of citizens and to disrupt communal peace and harmony is clearly discernible. This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously. The alarming increase in disruptive activities is also a matter of serious concern.”

812. The Bill as introduced sought to make provisions for combating the menace of terrorists and disruptionists, inter alia, to—

“2. (a) provide for deterrent punishment for terrorist acts and disruptive activities;

(b) confer on the Central Government adequate powers to make such rules as may be necessary or expedient for the prevention of, and for coping with, terrorist acts and disruptive activities; and

(c) provide for the constitution of Designated Courts for the speedy and expeditious trial of offences under the proposed legislation.”

813. The said Act 31 of 1985 was due to expire on 23-5-1987 and in order to combat and cope with terrorist and disruptive activities effectively and to strengthen it further, the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987) was enacted. Since both the Houses of Parliament were not in session and it was necessary to take immediate action, the President promulgated the Terrorist and Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987) on 23-5-1987 which came into force with effect from 24-5-1987. However, this Act repealing the Ordinance, received the assent of the President of India on 3-9-1987 and was published in the Gazette of India, Extra., Part II, Section 1, dated 3-9-1987. The scheme of Act 31 of 1985 and Act 28 of 1987 as reflected from their Preambles is the same. The scheme of the special provisions of these two Acts were/are “for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto”.

International Conventions

814. There also exist several international conventions, which aim to suppress terrorism and define terrorist acts. The League of Nations took the initiative to formulate the first Global Convention on Preventing Terrorism and, accordingly, adopted the 1937 Convention for the Prevention and Punishment of Terrorism**†, which defined “acts of terrorism” as:

“Criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, a group of persons or the general public.”

815. More recently, several international conventions and multilateral agreements have been entered into by States to curb global terrorism. The International Convention for the Suppression of Terrorist Bombings, 1997 defines the offence of “terrorist bombing” as follows:

“Article 2.1.—Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such a destruction results in or is likely to result in major economic loss.”

816. The United Nations Security Council in its 2004 Resolution*†† denounced “terrorist acts” as follows:

“criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a Government or an international organisation to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature,…”

India's contribution in combating terrorism

817. India has played a major part in strengthening international consensus against terrorism in United Nations, Non-Aligned Movement (NAM) and South Asian Association for Regional Cooperation (SAARC). India is a party to major international conventions against terrorism and has also incorporated them in domestic legislation. These conventions and treaties condemn terrorist acts and expressly state the grave concern posed by terrorism.

Terror attacks

818. Another trend common to both national and international terrorism is the emergence of terrorist groups motivated by religious fanaticism. Whenever the perpetrators are motivated by religious fanaticism or have secular goals and beliefs, they become susceptible to the idea of sacrificing their own life for carrying out the will of God, or Allah or in waging a “holy war”. It is important to note here that terrorism is abhorred and condemned by all the religions of the world. Terrorists conduct planned and coordinated attacks targeting innocent civilians with a view to infuse terror in the minds of people. India, particularly, has been a victim on several occasions.

819. An indicative list of recent terrorist attacks on India as furnished by the learned Senior Counsel for CBI is provided below:

Sl. No. Date of attack Place of attack No. of bomb blasts No. of persons killed 1. 12-3-1993 Bombay 13 257 2. 14-2-1998 Coimbatore 13 46 3. 13-12-2001 New Delhi - 9 4. 25-9-2002 Akshardham - 29 5. 6-12-2002 Mumbai (Ghatkopar) - 2 6. 25-8-2003 Mumbai (Zaveri Bazaar) - 50 7. 29-10-2005 Delhi 3 60 8. 11-7-2006 Mumbai (local trains) - 209 9. 25-8-2007 Hyderabad 2 42 10. 23-11-2007 Lucknow, Varanasi, Faizabad - 18 11. 13-5-2008 Jaipur 9 63 12. 25-7-2008 Bangalore 9 2 13. 26-7-2008 Ahmedabad 21 56 14. 13-9-2008 Delhi 5 30 15. 26-11-2008 Mumbai - 172 16. 13-2-2010 Pune - 17 17. 13-7-2011 Mumbai 3 26 18. 7-9-2011 Delhi (outside Delhi High Court) 1 12 19. 13-2-2012 Delhi (Israeli Embassy official's car) Injured persons 4

820. Terrorist attacks are not only limited to India but several terrorist attacks have also taken place in countries around the world. Following is a list of select terrorist attacks outside India:

Sl. No. Date of attack Place of attack No. of bomb blasts No. of persons killed 1. 11-9-2001 NY and Washington DC, USA 4 Nearly 3000 2. 12-10-2002 Bali, Indonesia 3 202 3. 11-3-2004 Madrid, Spain 10 191 4. 7-7-2005 London, England 4 52

Supreme Court of India on terrorism

821. The Supreme Court of India has also explained the term “terrorism” in a series of cases. Provided below are summaries of key cases on terrorism.

822. In Hitendra Vishnu Thakur v. State of Maharashtra, one of the key questions for consideration of this Court was in relation to the applicability of Section 3(1) TADA. This Court held that while offences mentioned in Section 3 TADA may overlap with offences mentioned in other statutes, a charge under Section 3 should be made where the offence was committed with the intention as envisaged in Section 3. This Court further observed:

“7. ‘Terrorism’ is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society. ‘Terrorism’ has not been defined under TADA nor is it possible to give a precise definition of ‘terrorism’ or lay down what constitutes ‘terrorism’. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or ‘terrorise’ people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fallout of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. Experience has shown us that ‘terrorism’ is generally an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon.”

(emphasis supplied)

823. Girdhari Parmanand Vadhava v. State of Maharashtra 1996 11 SCC 179 relates to kidnapping of a boy for ransom and on non-payment of the same, the accused persons tortured and killed the boy. The Designated Court convicted the accused and awarded life sentence. While adjudicating the appeal, it was contended by the counsel for the accused persons before this Court that kidnapping is not a terrorist activity within the meaning of the provisions of TADA. This Court, while affirming the conviction and that the offence committed was a terrorist act, held as under:

“39. A crime even if perpetrated with extreme brutality may not constitute ‘terrorist activity’ within the meaning of Section 3(1) TADA. For constituting ‘terrorist activity’ under Section 3(1) TADA, the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in the said Section 3(1). Terrorist activity is not confined to unlawful activity or crime committed against an individual or individuals but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity, social and communal harmony, disturbing or destabilising public administration and threatening security and integrity of the country. … It is the impact of the crime and its fallout on the society and the potentiality of such crime in producing fear in the minds of the people or a section of the people which makes a crime, a terrorist activity under Section 3(1) TADA. In our view, in the facts of the case, the learned Designated Judge has rightly convicted the accused for offences under Section 3(1) TADA besides convicting each of them under Section 120-B and Section 302 read with Section 120-B IPC.”

(emphasis supplied)

824. In State v. Nalini this Court, while adjudicating the convictions of several accused persons in the case for assassination of Mr Rajiv Gandhi, former Prime Minister of India, spelt out the ingredients of an offence under Section 3(1) TADA as follows:

“650. … A perusal of the provision [Section 3(1)], extracted above, shows that it embodies the principle expressed in the maxim ‘actus non facit reum nisi mens sit rea’; both ‘mens rea’ and a criminal act are the ingredients of the definition of ‘terrorist act’. The mens rea required is the intention (i) to overawe the Government as by law established; or (ii) to strike terror in the people or any section of the people; or (iii) to alienate any section of the people; or (iv) to adversely affect the harmony amongst different sections of the people. The actus reus should comprise of doing any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detaining any person and threatening to kill or injure such persons in order to compel the Government or any other person to do or abstain from doing any act.”

(emphasis supplied)

825. In Mohd. Khalid v. State of W.B, while affirming the decision in appeal, this Court held that it is difficult to define terrorism in precise terms and acknowledged that terrorism is a threat to global peace and security. This Court further observed as under:

“42. … It is not possible to define the expression ‘terrorism’ in precise terms. It is derived from the word ‘terror’. As far as the Statement of Objects and Reasons leading to enactment of TADA is concerned, reference to the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as ‘the old Act’) is necessary. It appears that the intended object of the said Act was to deal with persons responsible for escalation of terrorist activities in many parts of the country. It was expected that it would be possible to control the menace within a period of two years, and life of the Act was restricted to the period of two years from the date of its commencement. But noticing the continuance of the menace, that too on a larger scale, TADA has been enacted. The menace of terrorism is not restricted to our country, and it has become a matter of international concern and the attacks on the World Trade Center and other places on 11-9-2001 amply show it. The attack on Parliament on 13-12-2001 shows how grim the situation is. TADA is applied as an extreme measure when the police fails to tackle with the situation under the ordinary penal law. Whether the criminal act was committed with an intention to strike terror in the people or a section of the people would depend upon the facts of each case.”

(emphasis supplied)

826. Nazir Khan v. State of Delhi, pertains to prosecution of accused persons involved in kidnapping of foreign nationals and killing of police officers during combat. While the mastermind of this terrorist operation was subsequently released by the Government in exchange for passengers held as hostages in the hijacked Indian Airlines Flight IC 814, the other accused persons were tried for offences punishable under IPC and TADA. This Court, while hearing their appeals, challenging the judgment of the Designated TADA Court, which had awarded death and life sentences to certain accused persons, made detailed observations about the nature of terrorist activities and attempted to define terrorism and held as under:

“13. … As noted at the outset, it is not possible to precisely define ‘terrorism’. Finding a definition of ‘terrorism’ has haunted countries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the Convention drafted in 1937 never came into existence. The UN Member States still have no agreed-upon definition. Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present twelve piecemeal conventions and protocols. The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures. Cynics have often commented that one State's ‘terrorist’ is another State's ‘freedom fighter’. If terrorism is defined strictly in terms of attacks on non-military targets, a number of attacks on military installations and soldiers' residences could not be included in the statistics. In order to cut through the Gordian definitional knot, terrorism expert A. Schmidt suggested in 1992 in a report for the then UN Crime Branch that it might be a good idea to take the existing consensus on what constitutes a ‘war crime’ as a point of departure. If the core of war crimes—deliberate attacks on civilians, hostage-taking and the killing of prisoners—is extended to peacetime, we could simply define acts of terrorism as ‘peacetime equivalents of war crimes’.

14. League of Nations Convention (1937):

‘All criminal acts directed against a State along with intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public.’

(GA Res. No. 51/210: Measures to eliminate international terrorism)

1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed.

2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.

3. Short legal definition proposed by A.P Schmidt to the United Nations Crime Branch (1992):

Act of Terrorism = Peacetime Equivalent of War Crime

4. Academic Consensus Definition:

‘Terrorism is an anxiety-inspiring of repeated violent action, employed by (semi-) clandestine individuals, groups or State actors, for idiosyncratic, criminal or political reasons, whereby—in contrast to assassination—the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat and violence-based communication processes between terrorist (organisation), (imperilled) victims, and main targets are used to manipulate the main target [audience(s)], turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought.’ (Schmidt, 1988)

Definitions

15. Terrorism by nature is difficult to define. Acts of terrorism conjure emotional responses in the victims (those hurt by the violence and those affected by the fear) as well as in the practitioners. Even the US Government cannot agree on one single definition of uniform and universal application. The old adage, ‘One man's terrorist is another man's freedom fighter’ is still alive and well. Listed below are several definitions of terrorism used by the Federal Bureau of Investigation:

Terrorism is the use or threatened use of force designed to bring about political change.

Brian Jenkins

Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targeted.

Walter Laqueur

Terrorism is the premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience.

James M. Poland

Terrorism is the unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a government, individuals or groups, or to modify their behavior or politics.

Vice-President's Task Force, 1986

Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.

FBI definition”

(emphasis supplied)

827. In Madan Singh v. State of Bihar 2004 4 SCC 622, this Court upheld the conviction and sentence awarded by the Designated Court in respect of accused persons who had killed several police officers in combat. While affirming that the offence committed was rightly charged under Section 3 TADA, this Court observed in detail in respect of terrorist activities and held as follows:

“19. Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised and orderly society. … It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb the harmony of the society or ‘terrorise’ people and the society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquillity of the society and create a sense of fear and insecurity.”

828. In People's Union for Civil Liberties v. Union of India 2004 9 SCC 580, the constitutional validity of various provisions of the Prevention of Terrorism Act, 2002 (“POTA”) was challenged. While upholding the constitutional validity of POTA, this Court discussed domestic and international authorities on terrorism and observed that:(-9)

“6. In all acts of terrorism, it is mainly the psychological element that distinguishes it from other political offences, which are invariably accompanied with violence and disorder. Fear is induced not merely by making civilians the direct targets of violence but also by exposing them to a sense of insecurity.

***

8. All these terrorist strikes have certain common features. They could be very broadly grouped into three:

1. Attack on the institution of democracy, which is the very basis of our country (by attacking Parliament, Legislative Assembly, etc.). And the attack on the economic system by targeting economic nerve centres.

2. Attack on symbols of national pride and on security/strategic installations (e.g Red Fort, military installations and camps, radio stations, etc.).

3. Attack on civilians to generate terror and fear psychosis among the general populace. The attack at worshipping places to injure sentiments and to whip communal passions. These are designed to position the people against the Government by creating a feeling of insecurity.

9. Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character. The fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather, it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness††† that binds this great nation together. Therefore, terrorism is a new challenge for law enforcement. By indulging in terrorist activities organised groups or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements are trying to destabilise the country. This new breed of menace was hitherto unheard of. Terrorism is definitely a criminal act, but it is much more than mere criminality. Today the Government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within the borders. To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws. In the abovesaid circumstances Parliament felt that a new anti-terrorism law is necessary for a better future. This parliamentary resolve is epitomised in POTA.”

(emphasis supplied)

829. Terrorism is a major problem that is re-occurring over the globe in many different forms. In short, terrorism is a plague for a nation or society that should be eradicated. There is a dire need to best deal with it and to make sure to take preventive actions so that other groups and people are not motivated to make themselves heard through various acts of terrorism. In our considered view, the following procedures/rules must have to be adopted while dealing with it:

(i) Better governance and law enforcement is the real need of the hour.

(ii) We must formulate long-term as well as short term strategies to combat terrorism.

(iii) More advanced technologies must be used for communication among law enforcement agencies.

(iv) Fighting terrorism would require a long-term planning and sustained multi-dimensional action.

(v) There should be proper coordination between all the agencies with high level of motivation and a quick response system must be established to tackle the menace immediately.

(vi) Rule of law must always be upheld and it is the duty of the constitutional authority to defend the life and limb of its subjects.

830. India being a secular State, such religious fanaticism which resulted in such terrorist acts should not be allowed to destroy the very basic structure of our Constitution. Unless every one of us puts our sincere efforts to fight terrorism, we will not be able to curb this menace.

Role of Pakistan in the blasts

831. It is devastating to state that Pakistan being a member of the United Nations, whose primary object is to maintain international peace and security, has infringed the recognised principles under international law which obligate all States to prevent terrorist attacks emanating from their territory and inflicting injuries to other States. This duty to prevent acts of terrorism stems from the basic principle of sovereignty, which entails both rights and obligations. Under the “Universal Neighbouring Principles”, it is well established that the rights of one State end where the territory of another State begins. An obvious source of this obligation lies in Article 2(4) of the UN Charter, which embodies the customary law of “prohibiting States from using or threatening to use force against another State”. A host State that has the capability to prevent a terrorist attack but fails to do so will inherently fail in fulfilling its duty under Article 2(4) since terrorism amounts to force by definition.

832. In the relevant scenario, the accused arrived in Pakistan for training and they were received by ISI operatives who took them out of the airport without observing any immigration formalities. Meaning thereby, they had a green channel entry and exit in Pakistan. Another confession reveals that they received training from the ISI officials themselves on some occasions. These events unveil the tolerance and encouragement shown by Pakistan towards terrorism.

833. An effective anti-terrorism campaign will require a substantial strengthening of the international regime of State responsibility. Presently, there are several documents adopted under the aegis of the United Nations and various multilateral treaties which emphatically promote all States to work together urgently to bring to justice the perpetrators, organisers or those harbouring the perpetrators, organisers and sponsors will also be held accountable.

834. In the light of Para 2 of the United Nations Security Council Resolution 1373 adopted under Chapter VII of the United Nations Charter, every State has the following obligations to perform:

(a) Every State should refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists.

(b) Take necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information.

(c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens.

(d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens.

(e) Every such person supporting terrorist acts should be brought to justice and it must be ensured that, in addition to any other measures taken against them, the punishment awarded duly reflects the seriousness of such terrorist acts.

(f) Afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings including assistance in obtaining evidence in their possession necessary for the proceedings.

(g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents.

835. With regard to the facts available in the case at hand, the role attributed by the neighbouring State can be summarised as under:

(1) A large number of convicted accused and absconders have received training in making of bombs by using RDX and other explosives, handling of sophisticated automatic weapons like AK-56 rifles and handling of hand grenades in Pakistan.

(2) A-92, A-95, A-108 and A-115 received weapons' training in Pakistan in January 1993. During the same period, five absconding accused persons also received training in Pakistan. Confessional statements of A-92, A-95, A-115 and A-134 prove these facts.

(3) The arrangement for their training was made by Dawood Ibrahim (AA), Anees Ibrahim, Mohd. Dossa, A-136 and Salim Bismillah Khan (since deceased).

(4) PW 1 and PW 2 in their depositions before the court and A-16, A-29, A-32, A-36, A-39, A-49, A-52, A-64, A-77, A-94, A-98 and A-100 in their confessional statements have stated that during February 1993 the accused persons were sent, in batches, from Bombay to Dubai and Dubai to Islamabad, where they were given training by ISI/army personnel in different camps.

(5) The abovesaid persons were taken to Dubai from where they were taken to Islamabad Airport and were received by ISI operatives, who took them out of Islamabad Airport without observing any immigration formalities after completion of training.

(6) No immigration formalities were observed when they left Islamabad for Dubai.

(7) Some of the passports seized during investigation carry two arrival stamps of Dubai but the details of their journey during the intervening period are not reflected in the passports.

(8) Pakistan took precautions not to bring its involvement on record.

(9) A-58, A-88, A-109, A-114, A-126, A-127, A-128, A-129, A-130 and A-135 were taken to Dubai for sending them to Pakistan but arrangements could not be made for their training in Pakistan. Hence, they had to return from Dubai.

836. A careful reading of the confessional statements of convicted accused exposes that large number of accused including the absconders received training in making of bombs by using RDX and other explosives, handling of sophisticated automatic weapons like AK-56 rifles and handling of hand grenades in Pakistan which was organised and methodically carried out by Dawood Ibrahim (AA), Anees Ibrahim, Mohd. Dossa and Salim Bismillah Khan (since deceased). The training received in Pakistan materialised in the unfortunate serial blasts in Bombay, India on 12-3-1993. A responsible State owes an obligation not only to another State but also to the international community as a whole. We sincerely hope that every State will strive towards the same.

Role of police officers

837. In a civilised era, every country is governed by the rule of law and the primary concern of the rule of law is promotion of human rights of the people and protection of their civil, political, social, economic and cultural rights. The Constitution of our country has entrusted substantial duty to the impartial Police Department for safeguarding and upholding rule of law; whose essential duty is to preserve peace and maintain order in the society.

838. The role of police officials has become more vital in the present century owing to the frequent terror attacks occurring across the country. Terrorism is spreading across the border and there is increasing reliance on explosive devices to spread terror. It is important to take note of the increasing use of explosive devices by the terrorists not only because of their high damage potential but also due to their easy mobility. Explosive devices can be manufactured, transported, handled and fitted with a variety of unsuspecting objects multiplying their potential manifold. Thus, the police have a specific and special role, a duty and a responsibility, to curb the conveyance of explosives by vigilant patrolling and search and seizure, if required. Section 20 of the Arms Act, 1959 empowers them to arrest persons conveying any arms or ammunition under suspicious circumstances.

839. Unfortunately, in the present case the police officers themselves have taken active part in smuggling and transportation of arms and explosives in Bombay.

840. The twin duties of police are prevention of crime and maintenance of law and order. If crimes are prevented in time, the human rights of the people will be protected to a large extent. If Bombay police officials had been able to curtail the conveyance of the contraband in January and February 1993, the occurrence of 12-3-1993 could have been avoided.

841. With regard to the facts and circumstances of the case in hand, the role played by police personnel of different ranks can be summarised as under:

(1) A-116, who was Sub-Inspector-in-charge of Shrivardhan Police Station and had jurisdiction over Shekhadi and Dighi Jetty, where illegal landings of arms and explosives took places and seven constables viz. A-101, A-70, A-110, A-99, A-83, A-84 and A-87, posted in the same police station, connived and took active part in smuggling of arms and explosives at Dighi Jetty on 9-1-1993.

(2) Confessions of A-30, A-82, A-134 and A-136 as also the depositions of PW 94, PW 97, PW 158, PW 159, PW 160, PW 161, PW 162 and PW 167 prove their role in the said landing and transportation of smuggled arms, etc.

(3) A-116, along with seven constables intercepted the convoy carrying smuggled contraband, on the night of 9-1-1993. A-116 held negotiations with A-134 and A-136 with the help and assistance of A-30 and Customs Officer Gurav (A-82) and permitted them to proceed after retaining five silver bricks as security against the payment of Rs 10 lakhs.

(4) The bribe amount was paid later on, to A-116, who released the five silver bricks.

(5) The said bribe amount was distributed among all the police personnel on two occasions to Mhasla Police Station, Shrivardhan Police Station and Borali Outpost.

(6) Substantial amounts have been seized from each of the abovenoted police personnel during investigation.

(7) A-14 and A-17, in their confessions, have also deposed about the payment of bribe amount to A-116 for allowing the said landings.

842. As mentioned earlier, the police officials are the foundation for the existence of the rule of law; if they collapse the whole system indeed breaks down. Hence, they have the sensitive responsibility to defend the safety and security of the people at all times. Law empowers them with numerous powers to prevent and control crimes like terrorism affecting internal security. They should always remember that when they fail in their duty they eventually fail the society as a whole.

Role of Customs Officers

843. The customs officials primarily have a duty to prevent smuggling and ensure that everything that enters into or goes out of the country is brought or sent strictly in accordance with the provisions of the law for the time being in force. They are entrusted with powers of search and seizure and conduct of on-spot investigations. But when the officer of customs enters into or acquiesces in any agreement to abstain from doing or permits, conceals or connives at any act whereby any fraudulent import is affected, it can have a disastrous effect on the country's security.

844. It is shattering to notice that all grades of Customs Officers, including the Commissioners of Customs played an active role as members of conspiracy and implemented the plan. Every kind of smuggling activity is devastating to the economy, but the smuggling of dangerous arms and ammunition causes wreckage not only to the economy but also to people's lives.

845. The occurrence of Bombay bomb blasts brings us to the reality that such incidents take place along the Indian coastline irrespective of the numerous laws and safeguards provided due to the lack of moral ethics and misconduct on the part of the officials.

846. Customs duty being a significant source of government revenue, the officers of Customs Department must perform their respective duties honestly and diligently. Any act or omission on their part can have devastating consequences. The role played by the Customs Officers in pursuance of the conspiracy can be summarised as under:

(1) A-82, A-90, A-102, A-112 and A-113, who were the Customs Officers at the relevant time in Bombay and Alibaug, have played an active role as members of the conspiracy.

(2) A-112 attended a meeting with Mohd. Dossa (AA) in Hotel President, Bombay about 6 to 8 months prior to the bomb blasts and discussed their smuggling plans.

(3) Confessions of A-82, A-90 and A-113 as also confessions of co-accused A-134, A-136, A-14, A-17 and A-30 prove the role played by the Customs Officers in the conspiracy.

(4) On 6-1-1993, A-102 and A-90, with some other customs staff members, attended a meeting at Hotel Persian Darbar, Panvel with Mohd. Dossa (AA), A-134 and A-136, where the Customs Officers agreed to charge Rs 7 to 8 lakhs from Mohd. Dossa group for each landing.

(5) On 8-1-1993, A-102 and A-90 were informed by A-134 and Firoz Abdul Rashid Khan that landing would take place in the night. (Firoz Abdul Rashid Khan was absconding and has since been arrested on 6-2-2010.)

(6) A-82 played an important role in negotiations with police officers and A-116 and seven constables when they intercepted the convoy carrying smuggled contraband on 9-1-1993. A-82 even permitted A-30 to drive a customs jeep when they went for negotiations.

(7) Collector Customs (PW 470), on receipt of information from DRI, through DO letter dated 25-1-1993, conveyed to all the Customs Officers (accused) and others that the ISI syndicates located in the Middle East may try to smuggle contrabands and arms along with silver bricks in the districts of Bombay, Raigarh and Thane and instructed them to be more vigilant. PW 470 also gave instructions to A-112 and A-102 in this regard.

(8) PW 172, Customs Inspector, received information of landing of silver at Mhasla on 29-1-1993, 30-1-1993 and 31-1-1993. He conveyed this information to A-112 for taking suitable action.

(9) A-112 deliberately kept a ‘nakabandi’ at the wrong place i.e Puranphata and Dehanphata leaving one route open for the accused persons to carry the smuggled arms and explosives without any check.

(10) When the subordinate Customs Officers suggested to keep “nakabandi” at proper place i.e junction of Sai Mobra-Mangaon Road and Mhasla-Goregaon Road, A-112 informed them that he had specific information that Tiger Memon would bring the contraband goods from that route only. PW 172 had not told A-112 that landing would be organised by Tiger Memon.

(11) Landing of arms and explosives did take place on the night of 2-2-1993 and 3-2-1993. Tiger Memon and other accused participated in the landing.

(12) When the landing was being done, PW 171 (another Additional Collector of Customs) received information about it and conveyed the same over phone to A-112. On getting information from PW 171, A-112 sent a misleading wireless message to Marine and Preventive, Shrivardhan to keep a vigil at Bankot, which is miles away from the place of landing.

(13) When landing of arms and explosives was in progress at Shekhadi on the night of 2-2-1993, A-90 and A-82 reached the place of landing and met A-14 and Tiger Memon. They enquired from Tiger Memon whether the landing was for weapons. Tiger Memon replied in the negative.

(14) Another landing took place on the night of 7-2-1993 and 8-2-1993. A large quantity of arms and explosives were smuggled during this landing also. Tiger Memon and other accused participated in this landing.

(15) A-14, A-17 and A-30 have also spoken about the payment of illegal gratifications to Customs Officers for the landings.

847. From the above, it will not be an overstatement to state that if not for the help of the customs officials, they would not be in a position to smuggle the weapons required for the said blasts. A rationally structured and effective Customs Department is the need of the hour in order to curtail illegal imports which can have frightening ramifications upon the nation's economy and citizens' security. Corruption among public servants indicates a failure of our system where pursuit of personal gratification subdues public interest.

Lack of vigilance in the Indian maritime zone and indifference on the part of Coast Guards

848. India being a maritime nation, the role of Coast Guards is very vital for shielding the coast from external attacks. The coastal belt is surveyed by three teams of officers firstly, the Indian Navy who is responsible for the overall seaward security of the long coastline. Secondly, the Coast Guards who guard the Exclusive Economic Zone (EEZ) in order to prevent poaching, smuggling and other illegal activities in the EEZ. Lastly, the customs officials, who scrutinise and monitor every commodity which enters the Indian boundaries.

849. This triple-layered security system is created primarily to guard the Indian coastline from maritime terrorism, piracy and to keep out foreign intruders. Hence, it is the paramount duty of all these officials to be vigilant, heedful and attentive to each activity which occurs in the sea and on the shore. However, the occurrence of Bombay bomb blasts on 12-3-1993 discloses the deficient performance of the officials.

850. Similarly, the Indian Coast Guard (ICG) was set up in 1978 as a paramilitary branch of the Indian Armed Forces primarily for surveillance of the India's Exclusive Economic Zone to prevent poaching, smuggling and other illegal activities in the zone. The Coast Guards being the strongest link in the security chain are bound to be vigilant at sea and should be in full command of the coast. For the same, they are empowered to search and seize ships suspected of illegal activities. Besides, Section 14 of the Coast Guard Act, 1978 gives ample scope for Coast Guards to assist the customs and other authorities in anti-smuggling operations necessary for the protection of our long coastline.

851. As the perception of war is changing we should not overlook the role and the significance of the coast guards and the customs officials in combating terrorism. The role of the coast guards is as important as of any military troops. Only well strategised coast guards and high morale Customs Officers can prevent any opportunity for the terrorists to attack on our country via our maritime boundary.

Quantum of sentence

852. After meticulous examination of confessional statements of the accused and the co-accused, the recoveries made, and other evidences it establishes undoubtedly the guilt of all the death convicts.

853. Before we deliberate and decide upon the role played by each of the appellants and their respective sentences, certain reference to the contextual developments over the epochs with regard to death sentence would be timely, which will assist us in determining the sentence in this case.

Evolvement of law relating to death sentence

854. The constitutional validity of the death sentence has been brought under scrutiny from time to time to test the rationality of the death sentence with the emerging civilisation. Though death penalty as a punishment is not abolished as yet, significant amendments have been brought in for limiting the usage of the punishment. It is manifest from the bare reading of the judgments on death penalty from 1950 till date that the judiciary has always exercised its discretion in awarding this extreme penalty with great circumspection, caution and restraint. The nature of this discretion bestowed on Judges has been considered and reflected in the most celebrated Bachan Singh case in the following terms:

“165. … Cognizant of the past experience of the administration of death penalty in India, Parliament, in its wisdom, thought it best and safe to leave the imposition of this gravest punishment in gravest cases of murder, to the judicial discretion of the courts which are manned by persons of reason, experience and standing in the profession. The exercise of this sentencing discretion cannot be said to be untrammelled and unguided. It is exercised judicially in accordance with well-recognised principles crystallised by judicial decisions, directed along the broad contours of legislative policy towards the signposts enacted in Section 354(3).”

The dictum in Bachan Singh case paraphrases that the duty cast upon the Judges in deciding the appropriate sentence is a matter of judiciousness and not of law.

855. Earlier, Section 3(2) of the TADA Act, 1985 stipulated mandatory death sentence for a terrorist act, which results in death. The challenge to this provision was mounted on the ratio of Supreme Court decision in Mithu v. State of Punjab 1983 2 SCC 277, in which Their Lordships struck down Section 303 IPC as unconstitutional, which provided for compulsory imposition of death sentence. As a result, the corresponding provision of the TADA Act had also provided for the alternative sentence of life imprisonment thus bringing the provision in line with the provision of 302 IPC. Section 3(2)(i) TADA now prescribes death or life imprisonment in the alternative as the penalty for a terrorist act. It is noticeable from the above transformation in the sentencing policy that the courts were required upon to look into each and every case on its own merits, to determine the appropriate sentence for the offender.

856. While so, the Code of Criminal Procedure signposts the court as to its application. The changes, which the Code has undergone in the last few decades, clearly indicate that Parliament is taking note of contemporary criminological thought and movement. For clarification, though the TADA Act, 1987 is a special Act the application of the Code of Criminal Procedure is permissible to the extent of its consistency with the Act.

857. The very first case where the constitutional validity of capital punishment was vehemently discussed and decided was in Jagmohan Singh v. State of U.P This case was decided when the Code of Criminal Procedure, 1898 (for short “the old Code”) was in force. Section 367(5) of the old Code provided that if an accused person is convicted of an offence punishable with death, but he is sentenced to a punishment other than death, the court was required to state the reason why a sentence of death was not passed.

858. Section 367(5) of the old Code reads as follows:

“367. (5) If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.”

(emphasis supplied)

Therefore, all the death penalty cases until 1973 were decided according to the principle that death sentence was the rule and life imprisonment was the exception. However, after the new Code of Criminal Procedure, 1973 which came into force with effect from 1-4-1974, the principle took a converse turn and it was stated that imprisonment for life would be the rule and a sentence of death was an exception.

859. Amended Section 354(3) of the Code reads as follows:

“354. (3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.”

The Code effectively reversed the position as it existed under the old Code and also placed a rider that if a sentence of death is awarded, the court should record special reasons for awarding the same. As an outcome, the discretion to impose the sentence of death has been curbed to the extent of stating the “special reasons”. Presently, Judges are left with the task of discovering the “special reasons”.

860. What are these “special reasons” and do the provisions of the Code help us in the discovery of these special reasons? A reference to Bishnu Deo Shaw v. State of W.B Bishnu Deo Shaw v. State of W.B, 1979 3 SCC 714 would be helpful to understand what actually are these special reasons referred to. Chinnappa Reddy, J. penning the judgment said as follows:

“26. … Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors.”

It was further stated:

“27. Criminal justice is not a computer machine. It deals with complex human problems and diverse human beings. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think, learn and forget. Like the rest of us they too are the creatures of circumstance. Heredity, environment, home neighbourhood, upbringing, school, friends, associates, even casual acquaintances, the books that one reads, newspapers, radio and TV, the economics of the household, the opportunities provided by circumstances and the calamities resulting therefrom, the success and failure of one's undertakings, the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extraordinary incidents of life contribute to a person's personality and influence his conduct. Differently shaped and differently circumstanced individuals react differently in given situations. A Judge has to balance the personality of the offender with the circumstances, the situations and the reactions and choose the appropriate sentence to be imposed. A Judge must try to answer a myriad questions such as was the offence committed without premeditation or was it after due deliberation? What was the motive for the crime? Was it for gain? Was it the outcome of a village feud? Was it the result of a petty, drunken, street brawl, or a domestic bickering between a hapless husband and a helpless wife? Was it due to sexual jealousy? Was the murder committed under some stress, emotional or otherwise? What is the background of the offender? What is his social and economic status? What is the level of his education or intelligence? Do his actions betray a particularly callous indifference towards the welfare of society or, on the other hand, do they show a great concern for humanity and are in fact inspired by sum concern? Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society? Or is he a person who is patently amenable to reform? Well, may one exclaim with Prof. Vrij: ‘What audacity is involved in these three tasks: to interpret life, explain an act, predict the latest inclination of a human mind’.

28. ‘Special reasons’, we may therefore say, are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of criminology and connected sciences. Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemption, having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment, etc.”

In brief, Reddy, J. said that “special reasons” necessary for imposing death sentence must relate, not to the crime as such but to the criminal.

861. In the same line of thought in Rajendra Prasad v. State of U.P Rajendra Prasad v. State of U.P, 1979 3 SCC 646, this Court, by majority judgment, observed:

“83. (9) ‘Special reasons’ necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking than other murders and yet the callous criminal e.g a lethal economic offender, may be jeopardising societal existence by his act of murder. Likewise, a hardened murderer or dacoit or armed robber who kills, and relishes killing and raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psychotherapy or curative techniques may deserve the terminal sentence. Society survives by security for ordinary life. If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand penalty dependent on the totality of circumstances.”

(emphasis in original)

The subsequent decision in Dalbir Singh v. State of Punjab 1979 3 SCC 745 also endorsed this view.

862. Now, we have a clue as to what these special reasons are. The next question that arises is: Is there a comprehensive provision in the Criminal Procedure Code, which enunciates the mechanism for collection and presentation of the social and personal data of the culprit to the extent required to decide the verdict on sentence?

863. There were no provisions as such until the Law Commission recommended in its 48th Report†‡‡ observing that:

“45. Sentencing.—It is now being increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is a lack of comprehensive information as to the characteristics and background of the offender.

The aims of sentencing—themselves obscure—become all the more so in the absence of comprehensive information on which the correctional process is to operate. The public as well as the courts themselves are in the dark about judicial approach in this regard.

We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged, and both the prosecution and the accused should be allowed to cooperate in the process.”

864. By enacting sub-section (2) of Section 235 CrPC, Parliament has actually acceded to the recommendations of the Law Commission. Enactment of this provision is an act of affirming the new trend in penology, which mandates the courts to consider various factors such as the prior criminal record of the offender, his age, employment, educational background, home life, sobriety and social adjustment, emotional and mental condition, and the prospects of his returning to the normal path of conformity with the law, etc. in deciding the quantum of sentence.

865. In this background of standards, the judiciary with the aid of Section 235(2) ascertained the “special reasons” pertaining to the criminals as required by Section 354(3) of the Code to impose death penalty. Subsequently, the constitutional validity of Section 302 and the sentencing procedure embodied in sub-section (3) of Section 354 of the Code was challenged before a Constitution Bench in Bachan Singh wherein the need for reconsideration of Jagmohan Singh, was felt necessitated due to subsequent events and changes in law. In addition, a query was raised whether the dictum in Rajendra Prasad that “special reasons” necessary for imposing death penalty must relate not to the crime as such, but to the criminal was warranted by the law or not.

866. The principal questions which were considered in Bachan Singh case are:

866.1 (I) Whether death penalty provided for the offence of murder in Section 302, Penal Code is unconstitutional?

866.2 (II) If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Section 354(3) of the Code of Criminal Procedure, 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Penal Code with death or, in the alternative, with imprisonment for life?

866.3 (III) Whether the “special reasons” necessary for imposing the death penalty should relate to the criminal alone or even the crime?

867. The first main question in Bachan Singh case was answered in negative, indicating that the constitutional validity of death penalty was upheld in the line of Jagmohan Singh.

868. The second question in Bachan Singh case regarding the unguided and untrammelled discretion vested upon the Judges to impose death sentence or imprisonment for life was answered in the following words:

“161. A study of the propositions set out above, will show that, in substance, the authority of none of them has been affected by the legislative changes since the decision in Jagmohan case. … according to the then extant CrPC both the alternative sentences provided in Section 302 of the Penal Code are normal sentences and the court can, therefore, after weighing the aggravating and mitigating circumstances of the particular case, in its discretion, impose either of those sentences. This postulate has now been modified by Section 354(3) which mandates the court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are ‘special reasons’—to be recorded—for such sentence.”

Accordingly, the second question was answered.

869. With regard to the third question regarding what constitutes “special reasons”, the majority view in Bachan Singh case clarified that the expression “special reasons” will be in reference to the crime as well as the criminal thereby overruling Rajendra Prasad and Bishnu Deo Shaw. It reads as follows: (Bachan Singh case)

“201. With great respect, we find ourselves unable to agree to this enunciation. As we read Sections 354(3) and 235(2) and other related provisions of CrPC 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of ‘special reasons’ in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ‘style is the man’. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that ‘special reasons’ can legitimately be said to exist.”

(emphasis in original)

“163. … The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code, the court should not confine its consideration ‘principally’ or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.” (Bachan Singh case)

(emphasis in original)

870. As a consequence, the majority view in Bachan Singh, gave a wider interpretation to the term “special reasons” by embracing within its ambit both the circumstances connected with the particular crime and the criminal. Upshot of this interpretation is that the “special reasons” required for confirming the death sentence under Section 302 or in the context of this case in Section 3(2)(i) TADA will have to be identified by balancing the aggravating and mitigating or extenuating circumstances.

871. While determining the aggravating circumstances relative weight ought to be given to both criminal and the crime and an identical approach must be adhered to for ascertaining the mitigating circumstances. Since these two aspects are interwoven, it is difficult to segregate the two to state that all circumstances relating to the crime will be aggravating, likewise all circumstances relating to the criminal are mitigating. From the above conspectus, it is clear that the aggravating circumstances pertaining to both the crime and the criminal are the reasons, which can be against the accused; likewise the mitigating circumstances marshalled from both the crime and the criminal can be the reasons in favour of the accused.

872. For instance, the manner of commission of murder may not be brutal or diabolic or pre-meditated. This can be construed as a mitigating circumstance pertaining to the crime and not the criminal. Hence, a careful evaluation of the aggravating and mitigating circumstances pertaining to both the criminal and crime is the approach to ascertain the special reasons for imposing the extreme penalty on a person.

873. Thus, the two cardinal factors viz. one, the penalty imposed must be proportionate to the gravity of the crime and second, the degree of responsibility of the offender must be taken into account in determining the sentence for an individual accused in addition to the aggravating and mitigating circumstances.

874. Now, straightaway we shall determine the sentence for the appellants within the boundaries prescribed by law, bearing in mind the purpose of punishment and taking into account all circumstances influencing the degree of severity (mitigating and aggravating circumstances) and, in particular the degree of criminal responsibility.

875. For convenience, we shall discuss Yakub Abdul Razak Memon's appeal discretely as against the other ten appellants.

Criminal Appeal No. 1728 of 2007 — Yakub Abdul Razak Memon (A-1)

876. Before we enumerate the aggravating and mitigating circumstances for consideration on sentencing, we ought to find the degree of responsibility of A-1 for the occurrence of the blasts on 12-3-1993 in comparison with other appellants. Our legal system has always emphasised that the sentence shall reflect the relative significance of the accused's role.

877. A-1 is the younger brother of Tiger Memon, (AA), who is one of the masterminds behind the blasts. A-1 was in a position of authority particularly, and had played a significant role in the context of the blasts which is important while determining the sentence. The confessional statements of the co-accused discussed in the earlier part of the judgment under A-1's appeal establish the dominating position of the appellant in comparison with the other ten appellants.

878. At the cost of repetition, we may reiterate the conduct of A-1, which may be very relevant for ascertaining his dominant position in the commission of the crime. The following conduct of the appellant (A-1) along with the co-conspirator family members may be relevant:

(a) The confessional statements of the various co-accused make a mention that Tiger Memon had instructed them to stay in touch with A-1 for further instructions. Meaning thereby, A-1 assumed the role of Tiger Memon in India during his absence. As an outcome, Tiger Memon gave the commands to A-1, who in turn had passed them to the other accused, thereby signifying the trusted position that A-1 had obtained from Tiger Memon, apart from being just a younger brother.

(b) Moreover, A-1's role was limited not only to the extent of correspondence between the masterminds and all other accused but he was also entrusted with the task of handling the explosive bags and for their safe keeping, which is again revealed in the confessional statements of the various co-accused persons.

(c) Furthermore, he was actively involved in hawala transactions for the purpose of facilitating the blasts on 12-3-1993.

(d) Besides, he acquired tickets both for Dubai and Pakistan for transporting the appellants to the respective places for the purpose of training and coaching them in envisaging their participation for the blasts in Bombay.

879. Essentially, A-1's deeds can't be viewed distinctly from the act of Tiger Memon, hence, both owe an equivalent responsibility for the blasts. They were the architects of the blasts, without whom the plan would have never seen daylight. From this conduct, it is not hyperbole to state that, he was one of the “driving spirits” behind the plan of the 1993 blasts, whereas the other appellants played a far lesser role and thus a lesser contribution to the crimes resulting from this plan. To be clearer on the dominant position, the blasts on 12-3-1993 were at the discretion of the masterminds, meaning thereby, they had the effective control over the incident. It is this effective control over the incident, which is absent in the role played by rest of the appellants.

880. Hence, there is a significant difference in the role played by A-1 and the rest of the appellants. It is difficult to rule out with certainty that if the absconding accused were to be brought to trial, they might have thrown further light on the role played by A-1. Since A-1 as well as the other absconders were the real conspirators who hatched the scheme for such a tragic act, the other ten appellants i.e A-32, A-36, A-39, A-44, A-10, A-29, A-9, A-11, A-12 and A-16 were mere subservient subordinates whose knowledge and acquaintance might have been restricted to their counterparts. If we say it in a metaphoric style, A-1 and all the absconding accused were the archers whereas rest of the appellants were the arrows in their hands.

881. We are mindful of the fact that there is no direct act attributed to A-1 as far as parking of the explosives filled vehicles in different localities are concerned. But we should recollect, that if, not for the planning of conspirators for which A-1 was a party too, the explosives and ammunition required for the execution wouldn't have entered into our country and as a consequence the execution itself wouldn't have materialised. Furthermore, it is not conceivable to envisage that these principal perpetrators would take the execution in their hands. So they targeted meek souls who were underprivileged and easily impressible (sic impressionable) to accomplish their ulterior motive. It is also a proved fact that Memon's family members including A-1 have fled the country anticipating detention for their illegal acts.

882. From this, it can safely be concluded that no offence might have taken place at all but for the instigation by the absconding accused and A-1. Hence the dominant position of the accused is an aggravating factor by itself, as it gives the status of direct responsibility.

Aggravating circumstances

883. The following aggravating circumstances as against A-1 can be culled out:

883.1 A-1 was one of the brains behind the hatching of the larger conspiracy for the Bombay bomb blasts in 1993.

883.2 The dominant position and significant role played by A-1 is a factor that may aggravate his punishment.

883.3 The “vulnerability of the victims” and “the depravity of the crimes” constitute additional aggravating circumstances.

883.4 Crime of terrorism is in itself an aggravating circumstance as it carries a “special stigmatisation” due to the deliberate form of inhuman treatment it represents and the severity of the pain and suffering inflicted.

883.5 He was part of the deliberate choosing of localities like Century Bazaar, Zaveri Bazaar, Katha Bazaar, Stock Exchange building, etc. where there was more prospect of public gathering. The manner of its execution and its design would put it at the level of extreme atrocity and cruelty.

Mitigating circumstances

884. Mr Jaspal Singh, learned Senior Counsel submitted the following as the mitigating circumstances to reduce the severity of the sentence of A-1.

(i) He is a Chartered Accountant by profession and a respectable person in society before the occurrence of this incident.

(ii) The learned Senior Counsel emphasised more on the point that this is a fabricated case and A-1 was merely inflicted in this trial on the sole ground of being the brother of Tiger Memon, who is the absconding accused in this case. As a consequence, there is no overt act committed by the accused himself. In fact, the act of A-1 returning to India unlike other absconders is in itself a mitigating circumstance in his favour.

(iii) No criminal antecedent.

(iv) He suffers from depression since 1996.

(v) Lastly, he had served more than 19 years in jail.

885. In our considered opinion, the argument of the learned Senior Counsel that A-1 was inflicted in this trial only on the sole ground of being the brother of Tiger Memon does not impress us, as the evidence shows to the contrary. We accept the contention of the learned Senior Counsel and treat the lack of prior criminal record as a mitigating factor; other ascertained mitigating circumstances are not at the higher pedestal to bargain for reduction of sentence.

886. Now, the task is vested upon us to determine appropriate sentence for an accused who was in the commanding position and was involved in crimes of the utmost gravity. Under the established jurisprudence, these two factors—a commanding position and a crime of “utmost gravity” ordinarily merit the extreme penalty even accounting for the guilty plea and mitigating factors. This is the special reason, which warrants death penalty to the accused.

887. For the foregoing reasons, having taking into account and weighed the totality of A-1's culpability and all the particular circumstances of the case, we concur with the decision of the Designated Court and confirm the sentence of capital punishment to A-1 and the appeal is disposed of accordingly.

Other appellants sentenced to death

888. We shall now discuss the appeals filed by the rest of the appellants sentenced to capital punishment by the Designated Court.

889. The abovesaid appellants have traded the freedom of choice for the freedom to commit atrocities. The discussion relating to Yakub Abdul Razak Memon (A-1) amply differentiates the role played by these ten appellants with A-1. Though the incident of bomb blasts is not a brainchild of these ten appellants yet they turned the conspirators' orders into action by executing the blasts for which they are indisputably liable for the consequences of their acts. Every person is responsible for his or her actions and they can't evade the accountability by placing the responsibility on another person. At the same time, our legal system mandates that the sentence shall reflect the relative significance of the accused's role.

Aggravating circumstances

890. The following are the aggravating circumstances with regard to the abovesaid appellants:

890.1 They underwent special training in Pakistan for the purpose of executing the blasts in India.

890.2 These accused persons/individuals parked the vehicles with explosives at different spots as directed by their masterminds for the explosion of bombs.

890.3 Crime of terrorism is in itself an aggravating circumstance as it carries a “special stigmatisation” due to the deliberate form of inhuman treatment it represents and the severity of the pain and suffering inflicted.

890.4 The “vulnerability of the victims” and “the depravity of the crimes” constitute additional aggravating circumstances.

890.5 The manner of its execution and its design is at a level of extreme atrocity and cruelty.

891. Though the aggravating circumstances remain the same for all the ten appellants, but their mitigating circumstances differ from individual to individual. Therefore, we shall catalogue the mitigating circumstances independently for each accused.

892. The following factors may be relevant while ascertaining the mitigating circumstances.

Criminal Appeals Nos. 609-10 of 2008

893. The learned counsel for the appellants submitted that all the three appellants (A-32, A-36 and A-39) have been in custody since their arrest except A-39, who was granted interim bail on medical grounds to look after his mother who was seriously ill. As on date, the appellants have served more than 19 years each in jail. According to the learned counsel, during the abovesaid entire period, there is no complaint against the appellants either by the jail authorities or by the escort party as and when they were granted permission to go for medical treatment and to their respective homes in order to attend marriage, sickness, other functions and death of their near and dear ones.

894. The learned counsel further submitted that the appellants being the first time offenders have already incarcerated more than 19 years in custody and they must be considered and be given a chance of reformation to be in society. It was further pointed out that A-32 has completed his graduation (Bachelor of Commerce) from Yeshwantrao Chavan Maharashtra Open University, Nashik while in jail which itself indicates the prospect of his reformation and rehabilitation. As far as A-36 is concerned, he belongs to the lower strata of society. He used to make and sell brooms to eke out his livelihood and is suffering from a cardiac ailment. Insofar as A-39 is concerned, the learned counsel submitted that he is the one, who was granted interim bail by the Designated Court in order to look after his ailing mother. After considering his application being Bail Application No. 5 of 2005, the learned Judge granted him bail and he was on interim bail for about 4½ months.

895. In a nutshell, the mitigating circumstances of A-32, A-36 and A-39 can be summarised as under:

895.1 Mitigating circumstances (A-32)

(i) At the time of arrest, he was 21 years of age.

(ii) He shows remorse for his role in the blast.

(iii) Lack of prior criminal record.

(iv) He cooperated in the investigation.

(v) He suffers from bone tuberculosis, arthritis, which severely affected his right shoulder and arm bone; he further suffers from paralysis, which has affected right side of his face. He has developed glands in his testicles and developed ailment of cervical vertebra. He has been suffering from cervical vertebrata. On the whole he has been suffering from illness for the past eight years and has been operated twice during the said period.

(vi) Family circumstances: He has sick parents and mentally retarded brother to look after.

(vii) He was a mechanic by profession.

(viii) He is in custody since 18-4-1993.

895.2 A-36's mitigating circumstances

(i) At the time of arrest, he was 32 years of age.

(ii) He shows remorse for his role in the blast.

(iii) Lack of prior criminal record.

(iv) He cooperated in the investigation.

(v) He suffers from cardiac ailment.

(vi) Family circumstances: He has an old mother, wife and three children to look after.

(vii) Before the blasts, he was earning his livelihood by making and selling brooms in the market.

(viii) He is in custody since 18-4-1993.

895.3 A-39's mitigating circumstances

(i) He shows remorse for his role in the blast.

(ii) Lack of prior criminal record.

(iii) He cooperated in the investigation.

(iv) He suffers from psychiatric problem and was treated for the same while in custody.

(v) Family circumstances: He is unmarried and has an old mother to look after.

(vi) He used to work for the relief camps set up for helping persons affected by riots.

(vii) He is in custody since 1993.

Criminal Appeals Nos. 628-29 of 2008

896. The learned counsel for the appellant (A-44) submitted that the sentence awarded by the Designated Court is very harsh and he is in custody for more than 19 years, hence, he deserves to be released for the period already undergone. It was also submitted that there is neither any complaint against the appellant nor misuse of any facilities granted to him by the Designated Court. According to the counsel, the period already undergone must be considered and he be released from jail as he intends to lead a life of a good and reformed person. It was further submitted that he has to look after his family especially his two daughters who are yet to be married and one son whom he intends to pursue higher studies. It was also brought to our notice that before the incident, he was earning his livelihood by selling readymade garments.

897. The abovesaid submission of the counsel can be summarised as under:

A-44's mitigating circumstances

(i) At the time of arrest, he was 37 years of age.

(ii) He shows remorse for his role in the blasts.

(iii) Lack of prior criminal record.

(iv) He cooperated in the investigation.

(v) He used to sell readymade garments in the streets.

(vi) He is in custody since 19-5-1993.

Criminal Appeals Nos. 637-38 of 2008

898. With regard to sentence, Ms Farhana Shah, learned counsel for the appellants (A-10 and A-29) submitted that both of them are in judicial custody for more than 19 years. She also pointed out that the sentence awarded to them is very harsh and they should be given a chance to be in society as reformation is more important than being a deterrent and also that they deserve to be released for the period already undergone. She further pointed out that Asgar Yousuf Mukadam (A-10) has completed his graduation while in custody which shows that he should be given a chance of reformation which he would lose in case he is incarcerated in prison. It was further submitted that the accused persons are not hardened habitual criminals and they deserve to get a chance for reformation and rehabilitation. It was also pointed out that even during the entire period of judicial custody there is neither any report of misuse of the permissions/facilities granted to them nor is there any adverse report from the jail authorities.

899. In a nutshell, the mitigating circumstances of A-10 and A-29 can be summarised as under:

899.1 A-10's mitigating circumstances

(i) At the time of arrest, he was aged about 31 years.

(ii) He shows remorse for his role in the blasts.

(iii) Lack of prior criminal record.

(iv) He cooperated in the investigation.

(v) Family circumstances: He is unmarried and has old parents to look after.

(vi) He used to work as an Accountant of Tiger Memon (AA).

(vii) He acted under extreme duress because he was under substantial domination of the main conspirator.

(viii) He is in custody since 12-3-1993.

899.2 A-29's mitigating circumstances

(i) He is an illiterate person.

(ii) He shows remorse for his role in the blasts.

(iii) Lack of prior criminal record.

(iv) He cooperated in the investigation.

(v) Family circumstances: He has a young child and wife to look after.

(vi) He is in custody since 1993.

Criminal Appeal No. 365 of 2008

900. Ms Farhana Shah, learned counsel for the appellant (A-9) submitted that the appellant has been in custody since his arrest on 17-3-1993. According to her, during his entire period of custody for more than 19 years, there is not even a single complaint against him, neither any misuse of the permissions granted nor any attempt to flee away from justice. She further pointed out that the appellant was granted permission to visit home on number of occasions in order to meet his ailing mother and to attend the marriage of his brother but he never misused the same at any point of time.

901. In addition to the same, the learned counsel pointed out that though A-9 was convicted and sentenced to death, he completed his graduation from Yeshwantrao Chavan Maharashtra Open University, Nashik while in jail which shows that there is chance of reformation in him and the appellant is not a hardened criminal, hence, he deserves to lead a normal life to serve his aged sick mother who is bedridden and waiting for his return.

902. A-9's mitigating circumstances

(i) He shows remorse for his role in the blasts.

(ii) Lack of prior criminal record.

(iii) He cooperated in the investigation.

(iv) Family circumstances: He is unmarried and has old parents and siblings to look after.

(v) He was a salesman in a shopping centre.

(vi) He is in custody since 17-3-1993.

Criminal Appeals Nos. 864-65 of 2008

903. With regard to sentence, Ms Farhana Shah, learned counsel for the appellant (A-11) has submitted that the appellant has served more than 19 years in jail since his arrest on 18-3-1993. She further pointed out that during the entire period of 19 years, there is neither any complaint against him nor misuse of any permissions granted nor any attempt to abscond/flee away from justice. It is further pointed out that the appellant has been sent home on a number of occasions for attending the marriage of his children, last rites, visit his ailing wife, etc. but he never misused the same, hence, he may be given a chance to lead a normal life along with his family members. Before the date of incident, he was earning his livelihood by driving a taxi.

904. A-11's mitigating circumstances

(i) At the time of arrest, he was aged about 44 years.

(ii) He shows remorse for his role in the blast.

(iii) Lack of prior criminal record.

(iv) He cooperated in the investigation.

(v) Family circumstances: He has aged parents and two unmarried daughters to look after.

(vi) He used to be a taxi driver.

(vii) He is in custody since 18-3-1993.

Criminal Appeal No. 897 of 2008

905. With regard to the sentence, Ms Farhana Shah, learned counsel for the appellant submitted that the appellant (A-12) has undergone more than 19 years in custody since his arrest on 20-3-1993. She also pointed out that there is neither any complaint against him nor misuse of any facility granted to him and he has never made any attempt to flee away from justice. She also pointed out that even during the pendency of this appeal, this Court granted him permission on two occasions to visit his home and graveyard at the time of the death of his father and mother.

906. In addition to the same, the learned counsel also pointed out that though A-12 was convicted and sentenced to death, he has completed his graduation from Yeshwantrao Chavan Maharashtra Open University, Nashik which shows that reformation theory can be applied in his case. Further, it was pointed out that he is not a hardened criminal, hence, he deserves to get a chance to lead a normal life. With these materials, the learned counsel prayed for leniency in his sentence.

907. A-12's mitigating circumstances

(i) At the time of arrest, he was aged about 25 years.

(ii) He completed his graduation in jail.

(iii) He shows remorse for his role in the blasts.

(iv) Lack of prior criminal record.

(v) He cooperated in the investigation.

(vi) Family circumstances: He has old parents, wife and a son to look after.

(vii) He used to be a mechanic.

(viii) He is in custody since 20-3-1993.

Criminal Appeals Nos. 941-42 of 2008

908. Ms Farhana Shah, learned counsel for the appellant (A-16) submitted that the appellant is in custody for more than 19 years and he deserves to be released for the period already undergone. She also pointed out that there is neither any complaint against him nor misuse of any facility granted by the Designated Court. She further pointed out that the appellant is suffering from mental disorder and he was under treatment of J.J Hospital and Thane Mental Hospital during the entire period of trial. He is still under treatment and, as advised by the doctors, is surviving on medicines. His mental condition is not stable. In support of the above claim, the learned counsel has submitted his medical reports for perusal of this Court.

909. A-16's mitigating circumstances

(i) He shows remorse for his role in the blasts.

(ii) Lack of prior criminal record.

(iii) He cooperated in the investigation.

(iv) He is undergoing psychiatric treatment for the last 9 years and was admitted to the prison hospital for 15 months.

(v) Family circumstances: He has an old mother, wife and three children to look after.

(vi) He was earning his livelihood by making and selling brooms in the market.

(vii) He is in custody since 24-3-1993.

910. At the outset, we can classify these mitigating circumstances into seven heads, namely, age, act of remorse, no prior criminal antecedents, cooperation with the investigation, family circumstances, ill health and delay in execution. The first five aspects have been accepted as mitigating circumstances by the established practices of this Court. As far as “ill health” is concerned, it is not a mitigating but a special circumstance which may aid in reduction of sentence. The vital distinction between the “special circumstance” and “mitigating circumstance” appears to lie in the fact that the reduction in penalty is given not owing to any merit earned on the part of the accused, but because of compelling “reasons of humanity”, illustrating a humane approach to sentencing in this context.

911. Another vital factor stated as mitigating circumstance in all these petitions is that they have all been imprisoned for around 20 years and they continue to be in jail; hence the defence counsel submitted that on humanitarian grounds, sentence of all the death convicts must be reduced to imprisonment for life. Nevertheless, it is settled law by a Constitution Bench in Triveniben v. State of Gujarat 1989 1 SCC 678 that sentence can't be commuted merely on the ground of delay alone. It was further observed that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of death sentence, the sentence must be substituted by the sentence of life imprisonment. Thus no accused can claim as a matter of right to commute his/her death sentence on the ground of delay in the judicial process. However, noting the lengthy incarceration suffered by the accused over a period of two decades, as an exceptional scenario, we are inclined to consider the long delay as a mitigating circumstance but less significance will be attached to them in comparison with other six circumstances.

912. Furthermore, as we have already narrated, all the abovesaid ten appellants belong to the lower strata of society, most of whom don't even have any regular job for their livelihood. In brief, their personal life was relatively moderate before this incident. Subsequently, these appellants have fallen prey to the ulterior motive of the conspirators for accomplishing their hidden motives, which was to spread terror among the people. Such evidence can in no way exonerate or excuse them for their participation in the commission of crime. However, it provides a somewhat nuanced picture and may imply that their participation in the massacres resulted from misguided notions rather than extremism.

913. Recalling that the sentence should directly reflect the role of the accused in the crime, we made an attempt to evaluate the significance of these mitigating circumstances respectively and their repercussions on the quantum of sentence on these ten appellants.

914. Technically, it is these ten appellants who parked the explosive filled vehicles in the respective destinations, however, if we do lift the veil it is actually the masterminds' strategy, which was executed by the subservient minions i.e these ten appellants. This may not help in complete exoneration of the liability of these ten appellants but the degree of punishment must necessarily reflect this difference. It is vital to remember that “but for” the masterminds, these blasts should have never seen daylight.

915. Accordingly, to differentiate the degree of punishment to A-1 and other ten appellants, we contemplate that the ends of justice would be served if the death sentence of these ten appellants be commuted to imprisonment for life.

916. With a note of caution, we reiterate that it is ordinarily expected that two accused convicted of similar crimes in similar circumstances should not in practice receive very different sentences, often the differences are more significant than the similarities, and the mitigating and aggravating factors dictate different results. Therefore, the lesser sentence imposed on these ten appellants cannot be a precedent in other cases and every case must be decided according to their facts and circumstances.

917. In view of the above, it is apt to quote a decision of this Court in State of U.P v. Sanjay Kumar 2012 8 SCC 537 to understand the sentencing policy having regard to the nature of the offence and the manner in which it was executed or committed, etc. The following paragraphs are relevant:

“21. Sentencing policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. By introducing more uniformity and consistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality, as followed in various judgments of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus, the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society cannot long endure under serious threats.

22. Ultimately, it becomes the duty of the courts to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed, etc. The courts should impose a punishment befitting the crime so that the courts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of the crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order in many cases may be in reality, a futile exercise.

23. The survival of an orderly society demands the extinction of the life of a person who is proved to be a menace to social order and security. Thus, the courts for the purpose of deciding just and appropriate sentence to be awarded for an offence, have to delicately balance the aggravating and mitigating factors and circumstances in which a crime has been committed, in a dispassionate manner. In the absence of any foolproof formula which may provide a basis for reasonable criteria to correctly assess various circumstances germane for the consideration of the gravity of the crime, discretionary judgment, in relation to the facts of each case, is the only way in which such judgment may be equitably distinguished. The Court has primarily dissected the principles into two different compartments—one being the ‘aggravating circumstances’ and, the other being the ‘mitigating circumstance’. To balance the two is the primary duty of the court. The principle of proportionality between the crime and the punishment is the principle of ‘just deserts’ that serves as the foundation of every criminal sentence that is justifiable. In other words, the ‘doctrine of proportionality’ has valuable application to the sentencing policy under the Indian criminal jurisprudence. While determining the quantum of punishment the court always records sufficient reasons. (Vide Sevaka Perumal v. State of T.N AIR 1991 SC 1463, Ravji v. State of Rajasthan AIR 1996 SC 787, State of M.P v. Ghanshyam Singh AIR 2003 SC 3191, Dhananjoy Chatterjee v. State of W.B AIR 2004 SC 3454, Rajendra Pralhadrao Wasnik v. State of Maharashtra AIR 2012 SC 1377 and Brajendrasingh v. State of M.P AIR 2012 SC 1552)

24. … The aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the ‘rarest of rare cases’, warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. The life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds, for example, non-application of mind while passing the order; non-consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e under the Jail Manual, etc. or even under Section 433-A CrPC.”

“Life imprisonment” means rigorous imprisonment

918. There was a misperception that life imprisonment is distinct from the punishment of rigorous or simple imprisonment shown in clause Fourthly of Section 53 of the Penal Code. This issue was clarified in Mohd. Munna v. Union of India 2005 7 SCC 417, it was held:

“10. … Imprisonment for life is a class of punishment different from ordinary imprisonment which could be of two descriptions, namely, ‘rigorous’ or ‘simple’. It was unnecessary for the legislature to specifically mention that the imprisonment for life would be rigorous imprisonment for life as it is imposed as punishment for grave offences.”

Therefore, “imprisonment for life” is to be treated as “rigorous imprisonment for life”.

Meaning of “life imprisonment”

919. Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather it always means the whole natural life. This Court has always clarified that the punishment of a fixed term of imprisonment so awarded would be subject to any order passed in exercise of clemency powers of the President of India or the Governor of the State, or remission and commutation guaranteed under Section 432 of the Code as the case may be.

920. As observed in State of U.P v. Sanjay Kumar, there is no scope of judicial review of such orders except on very limited grounds such as the non-application of mind while passing the order, non-consideration of relevant material, or if the order suffers from arbitrariness. The power to grant remissions and to commute sentences is coupled with a duty to exercise the same fairly, reasonably and in terms of restrictions imposed in several provisions of the Code.

921. In order to check all arbitrary remissions, the Code itself provides several conditions. Sub-sections (2) to (5) of Section 432 of the Code lay down basic procedure for making an application to the appropriate Government for suspension or remission of sentence either by the convict or someone on his behalf. We are of the view that exercise of power by the appropriate Government under sub-section (1) of Section 432 of the Code cannot be automatic or claimed as a right for the simple reason, that this is only an enabling provision and the same would be possible subject to fulfilment of certain conditions. Those conditions are mentioned either in the Jail Manual or in statutory rules. This Court, in various decisions, has held that the power of remission cannot be exercised arbitrarily. In other words, the decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 of the Code itself provides this check on the possible misuse of power by the appropriate Government.

922. As rightly observed by this Court in Sangeet v. State of Haryana 2013 2 SCC 452, there is misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 years' imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code, which in turn is subject to the procedural checks mentioned in the said provision and to further substantive check in Section 433-A of the Code.

923. Therefore, pursuant to Sections 432 and 433 of the Code and clemency powers of President and Governor, as vested by the Constitution under Articles 72 and 161 respectively, the accused persons viz. A-32, A-36, A-39, A-44, A-10, A-29, A-9, A-11, A-12 and A-16 shall be imprisoned for life until their death and the appeals are disposed of on the above terms. We may add a footnote to the above conviction that the executive should take due consideration of judicial reasoning before exercising the remission power.

924. For convenience, we have reproduced the conclusion arrived at in respect of all the appeals dealt with under this part in Annexure A appended hereto.

Death Ref. Case (Crl.) No. 1 of 2011

State of Maharashtra v. Yakub Abdul Razak Memon

925. In view of the conclusion arrived at in respect of the abovesaid appeals filed by the appellants herein, we confirm the death reference with regard to Yakub Abdul Razak Memon (A-1) and commute the death sentence into life imprisonment for the rest of the appellants convicted under this part. The death reference is disposed of accordingly.

926.

Annexure A

Sl. No. Criminal Appeal/Appeals No./Nos. Accused name and number Sentence by Designated Court Award by Supreme Court 1. 1728 of 2007 Yakub Abdul Razak Memon (A-1) Death sentence Confirmed 2. 609-10 of 2008 Zakir Hussain Noor Mohammed Shaikh (A-32) Abdul Khan alias Yakub Khan Akhtar Khan (A-36) Firoz alias Akram Amani Malik (A-39) Death sentence 3. 628-29 of 2008 Mohd. Mushtaq Moosa Tarani (A-44) Death sentence 4. 637-38 of 2008 Asgar Yusuf Mukadam (A-10) and Shahnawaz Abdul Kadar Qureshi (A-29) Death sentence Commuted to life imprisonment 5. 365 of 2008 Mohd. Shoaib Mohammed Kasam Ghansar (A-9) Death sentence 6. 864-65 of 2008 Abdul Gani Ismail Turk (A-11) Death sentence 7. 897 of 2008 Parvez Nazir Ahmed Shaikh (A-12) Death sentence 8. 941-42 of 2008 Mohd. Farooq Mohammed Yusuf Pawale (A-16) Death sentence

Part-II

Criminal Appeal No. 1178 of 2007

Essa v. State of Maharashtra

P. Sathasivam, J.— Mr Jaspal Singh, learned Senior Counsel appeared for the appellants (A-3, A-4 and A-8) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent (CBI).

928. The present appeals are directed against the final judgment and order of conviction and sentence dated 12-9-2006 and 27-7-2007 respectively whereby the appellants have been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Cases, Greater Bombay in BBC No. 1 of 1993.

Charges

929. A common charge of conspiracy was framed against all the co-conspirators including the appellants. The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

930. In addition to the abovesaid principal charge of conspiracy, the appellants were also charged on the following counts:

At head secondly, for commission of the offence under Section 3(3) TADA, on the count of being an associate and related with Tiger Memon (AA) and in pursuance of the conspiracy during the period December 1992 to April 1993 in India, Dubai and Pakistan having conspired, advocated, abetted, advised and knowingly facilitated the commission of terrorist act and acts preparatory to terrorist acts i.e serial bomb blasts in Bombay and its suburbs on 12-3-1993 by doing the overt acts as specified in the said charge framed against each of them, namely,:

Essa alias Anjum Abdul Razak Memon (A-3)

For allowing Flat No. 25 on the sixth floor of Al-Hussaini Cooperative Housing Society Limited, Mahim and Garage No. C-3 therein to be used by terrorists for planning and preparation of terrorist acts and for storing arms, ammunition and explosives and thereby facilitating the commission of the terrorist acts.

Yusuf Abdul Razak Memon (A-4)

For allowing Flat No. 26 on the sixth floor of Al-Hussaini Cooperative Housing Society Limited, Mahim and Garage No. C-3 therein to be used by terrorists for planning and preparation of terrorist acts and for storing arms, ammunition and explosives and thereby facilitating the commission of the terrorist acts.

Rubina Suleman Memon (A-8)

(a) By knowingly facilitating the commission of terrorist acts by making arrangements for finance through her bank account and by allowing her Maruti van No. MFC 1972 for using it as a transport vehicle by terrorists for carrying co-conspirators, arms, ammunition and explosives.

(b) By allowing her Flat No. 25 on the sixth floor of Al-Hussaini Cooperative Housing Society Limited, Mahim and Garage No. C-3 therein to be used by terrorists for planning and preparation of terrorist acts and for storing arms, ammunition and explosives and thereby facilitating the commission of the terrorist acts.

931. The charges mentioned above were proved against the appellants except A-8 who was acquitted of: (i) a part of charge stated in clause (a) at head secondly framed against her in respect of having facilitated commission of terrorist acts by making arrangement for finance through her bank account; and (ii) charge stated in clause (b).

Conviction and sentence

932. The appellants have been convicted and sentenced for the abovesaid charges as under:

932.1 The appellants have been convicted for the offence of conspiracy punishable under Section 3(3) TADA and Section 120-B IPC read with the offences described at head firstly and sentenced to RI for life. A-8 was also directed to pay a fine of Rs 50,000, in default, to further undergo RI for 1 year whereas A-3 and A-4 were directed to pay a fine of Rs 1,00,000 each, in default, to further undergo RI for 2 years. (charge firstly)

932.2 The appellants have also been convicted under Section 3(3) TADA for commission of the offences at head secondly and sentenced to RI for 7 years along with a fine of Rs 50,000 each, in default, to further undergo RI for 1 year. (charge secondly)

Evidence

933. The evidence against the appellants (A-3, A-4 and A-8) is in the form of:

(i) confessions made by other co-conspirators (co-accused);

(ii) testimony of prosecution witnesses; and

(iii) documentary evidence.

Confessional statements of co-accused

934. The involvement of the appellants has been disclosed in the confessional statements of the co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions, insofar as they refer to the appellants (A-3, A-4 and A-8), are summarised hereinbelow.

Confessional statement of Abdul Gani Ismail Turk (A-11)

935. The confessional statement of A-11 under Section 15 TADA has been recorded on 15-4-1993 (2235 hrs) and 18-4-1993 (0115 hrs) by Shri Prem Krishan Jain, the then DCP, Zone X, Bombay. His confession reveals that on the night of 7-3-1993, when A-11 went to the house of Tiger Memon at Al-Hussaini Building, he (Tiger) was having dinner with Yakub Abdul Razak Memon (A-1), Essa alias Anjum Abdul Razak Memon (A-3) and other members of the Memon family.

Confessional statement of Mohd. Rafiq alias Rafiq Madi Musa Biyariwala (A-46)

936. The confessional statement of A-46 under Section 15 TADA has been recorded on 21-4-1993 (1900 hrs) and 22-4-1993 (2125 hrs) by Shri Krishan Lal Bishnoi, the then DCP, Zone III, Bombay. The confessional statement of A-46, driver of Tiger Memon, reveals that A-3 used to drive one white Maruti 800 car owned by Tiger Memon.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

937. The confessional statement of A-64 under Section 15 TADA has been recorded on 22-1-1995 (2115 hrs) and 24-1-1995 (0915 hrs) by Shri H.C Singh, Superintendent of Police, CBI/SPE/STF, New Delhi. His confession reveals that Tiger Memon and his family members used to reside together at Al-Hussaini Building. A-64, in his confession, also stated that Tiger Memon fled away from India with his family before the blasts on 12-3-1993 and that shortly after the blasts, police came to Al-Hussaini Building in search of Tiger and his family members.

Deposition of prosecution witnesses

938. Apart from the aforesaid evidence, the involvement and the role of the appellants in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as follows.

Al-Hussaini Building: Place of residence of Memon family

Deposition of Dinkar D. Jadhav (PW 312)

939. At the relevant time, PW 312 was working as a Ward Officer in Bombay Municipal Corporation. The relevant material in his evidence is as follows:

(i) In the court, PW 312 identified the report prepared by him (Ext. 1190) establishing the ownership of A-8 over Flat No. 25 in Al-Hussaini Building at Mahim.

(ii) PW 312 also described about the said report (Ext. 1190) which was prepared by him after scrutinising the property records establishing A-8 as the owner of the abovementioned flat at Al-Hussaini Building.

Deposition of Wahid Karim Shaikh (PW 87)

940. The following facts emerge from the deposition of PW 87, dated 4-8-1996:

(i) PW 87, who repairs cycles for a living, was formerly a driver of Razak Memon.

(ii) The Memons including A-3, A-4 and daughter-in-law of Razak Memon used to reside at Al-Hussaini Building. PW 87 stated as under:

“3. Razak Memon was residing at the said place along with his family members. The said members of his family were his wife, his daughter-in-law and his sons, namely, Anjumbhai (A-3), Yusufbhai (A-4), Yakubbhai (A-1) and Ayubbhai (AA).”

(iii) Essa alias Anjum Abdul Razak Memon (A-3) was having a small white-coloured Maruti car, a small blue Maruti car, a red-coloured Maruti 1000 and a red-coloured Maruti van.

941. Deposition of PW 87 also corroborates with the confession of A-46 which establishes that the Memons owned a small white Maruti car (i.e a Maruti 800 car) in addition to other cars. A-46 in his confession further stated that A-3 used to drive this white Maruti car.

942. The evidence on record establishes that the vehicles owned by the Memons were used for the purpose of organising the blasts and later converted into vehicle bombs. These cars were: a red-coloured Maruti van, a blue-coloured Maruti car, a white-coloured Maruti car and a red-coloured Maruti 1000. The blue-coloured Maruti car bearing Registration No. 0672 was used for the blast at Stock Exchange Building. Also, at Sahar Airport, hand grenades were thrown using a motorcycle which belonged to Ayub alias Abdul Razak Memon (AA). Another van bearing Registration No. MFC 1972 which was registered in the name of Rubina Suleman Abdul Razak Memon (A-8) had been used by A-9, A-12, A-44 and Anwar Theba (AA) on the eve of the blasts for taking three suitcases filled with bombs in order to cause blasts at three hotels.

943. Although PW 87 was declared a hostile witness, his evidence can be relied upon in the light of the pronouncement of this Court in Sat Paul v. Delhi Admn. 1976 1 SCC 727, wherein it was held that:

“52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.”

(emphasis supplied)

Departure from India prior to the blasts

944. It is also brought in evidence that each of the appellants left India prior to the blasts and arrived back only on 25-8-1994 at New Delhi Airport. The fact stated above is disclosed by the deposition of various prosecution witnesses which are as follows:

Deposition of Ganayansingh Tallaram Padwal (PW 245)

PW 245, at the relevant time, was working as an Immigration Officer at Sahar Airport, Bombay. He deposed that Essa alias Anjum Abdul Razak Memon (A-3) departed from India on 11-3-1993 and he also recognised the embarkation card (“X-405”) issued to A-3.

Deposition of V.P Kelkar (PW 229)

PW 229 was also working as an Immigration Officer at that time. He deposed that A-4 departed from Bombay on 11-3-1993 and recognised the embarkation card (“X-368”) in the court issued for travel.

Recoveries

945. The investigation into the role of the appellants can be said to have begun with the recovery of Maruti van bearing number MFC 1972 near the gate of Siemens Factory at Worli. This car was abandoned by the conspirators viz. PW 2, A-57, Javed Chikna, Bashir Khan and Babloo when they were on their way to Bombay Municipal Corporation Office on 12-3-1993. The statement of PW 2 reveals that while they were on their way, they spotted a live detonator in the van which exploded as soon as it was thrown outside the van. This explosion scared the conspirators and they abandoned the van near the gate of Siemens Factory at Worli. This van was then spotted by the security guards of the factory and was reported to the police and several items were recovered from the van including its registration documents. This ultimately led the police to the flat of Rubina Suleman Memon (A-8), owner of the said van, at Al-Hussaini Building.

Recovery of abandoned Maruti van No. MFC 1972 near Siemens Factory

946. It is relevant to note that the Maruti van bearing number MFC 1972 recovered from outside the gate of Siemens Factory at Worli on 12-3-1993 belonged to Rubina Suleman Memon (A-8). The prosecution examined PW 415, who was the security guard, posted at the said factory who noticed the abandoned vehicle. PW 371, a police officer, reached the spot and prepared a spot panchnama (Ext. 190) in the presence of a panch witness, Narayan D. More (PW 46) mentioning the recovery of rifles, hand grenades and cartridges from the said vehicle when it was opened up using a hook by Mr Nandkumar Anant Chaugule (PW 444), officer of the Bomb Detection and Disposal Squad (BDDS). The following prosecution witnesses also deposed with regard to the same in the following manner:

Deposition of Mohd. Usman Jan Khan (PW 2)

947. The deposition of PW 2 reveals as under:

(i) PW 2 along with Javed Chikna, Shaikh Ali Shaikh Umar (A-57), Bashir Khan (AA) and Babloo, left in a Maruti car bearing number 1972 on 12-3-1993 from the house of Tiger Memon towards BMC building and the said car was laden with explosives.

(ii) PW 2 and other co-accused persons parked the said Maruti van at the gate of Siemens factory when a live detonator exploded in the van as soon as it was thrown outside the car.

(iii) PW 2 further deposed that they left the hand grenades, rifles, detonators and magazines in the Maruti car parked outside the said factory.

Deposition of Divakar Ramakwal Mishra (PW 415)

948. On 12-3-1993, PW 415 was the security watchman on duty at Siemens Factory, Worli on 12-3-1993. In his deposition dated 21-8-1998, he reveals as under:

(i) PW 415 saw the Maruti van parked outside the rear gate of the company at around 6.30 p.m

(ii) His companion Sarabjit Singh lodged the complaint with the police regarding the abandoned vehicle. The police arrived on the spot within an hour.

Deposition of Narayan D. More (PW 46)

949. PW 46 acted as a panch witness to the recoveries made from the said Maruti van on 12-3-1993. In his deposition dated 19-2-1996, he reveals as under:

(i) PW 46 noticed two plastic bags in the van. One bag was opened and was found to contain 7 rifles. The second bag was containing 4 bombs and 14 magazines; and

(ii) PW 46 also noticed two white bags on the front row of the van and a bag of dates, water bottles, etc.

Ext. 190 is the spot panchnama prepared by the police documenting recoveries from the said Maruti van. It shows PW 46 as a panch witness and confirms recovery of rifles, hand grenades, magazines, dates and water bottles from the Maruti van bearing number MFC 1972 near Siemens Factory gate.

Deposition of Dinesh Parshuram Kadam (PW 371)

950. PW 371 was working as a Detection Officer at Worli Police Station on 12-3-1993. He deposed as under:

(i) After receiving information, he went to Siemens Factory on 12-3-1993 and saw a Maruti van bearing number MFC 1972;

(ii) He further deposed that two black bags were found from the van containing rifles, hand grenades and magazines. PW 371, thereafter, lodged an FIR at Worli Police Station; and

(iii) He further deposed that the registration details of the van revealed that the van was in the name of Rubina Suleman Memon (A-8) residing at Al-Hussaini Building.

Deposition of Nandkumar Anant Chaugule (PW 444)

951. PW 444 was the officer of BDDS. He deposed as under:

(i) PW 444 received information of a suspicious Maruti van parked behind Siemens Factory at Worli.

(ii) He opened the door of the Maruti van using a rope and a hook and found two black bags; and

(iii) The said bags were found to be containing AK-56 rifles, four hand grenades and magazines.

Deposition of Sadanand Narayan Naik (PW 370)

952. At the relevant time, PW 370 was an employee of the Regional Transport Office, Bombay. In his deposition dated 6-7-1998, he reveals as under:

(i) In the court, he recognised the entries made in the registration register maintained by the RTO in respect of vehicle number MFC 1972.

(ii) PW 370 had also prepared a true copy of the entries in the register on 26-7-1993 on the request of police officials.

Exts. 1292 and 1292-A are the true copies of the register maintained by RTO in respect of the Maruti vehicle bearing number MFC 1972. The said exhibits clearly show that Rubina Suleman Memon (A-8), resident of Al-Hussaini Building, is the owner of the said Maruti car.

Deposition of Waman Ramchandra Kulkarni (PW 662)

953. PW 662, in his deposition dated 3-5-2000, reveals that he wrote a letter to the RTO dated 23-7-1993 (Ext. 2433) seeking information in respect of the ownership of several vehicles including vehicle number MFC 1972, which was abandoned by the accused persons and was seized by the police on 12-3-1993 outside the Siemens Factory.

954. The recoveries made from the Maruti van bearing No. MFC 1972 were forwarded to the chemical analyser vide forwarding letter, Ext. 2439 who confirmed in his report (Ext. 2439-A) the presence of hand grenades amongst the recovered items. Similarly, his report dated 21-4-1993, Ext. 2440-A also confirmed one Chinese type 56-1 assault rifle and cartridges which were recovered from the said Maruti van on 12-3-1993. Further, FSL Report (Ext. 2440-C) clearly reveals that the name “wah noble (pvt.) ltd. wah cantt.” was inscribed on the cardboard boxes recovered at Al-Hussaini. Francis Xavier Xaxa (PW 435), an Indian national, working with the Ministry of External Affairs and attached with the Indian Consulate at Islamabad until 1995, has stated that a company by name “Wah Noble (P.) Limited” is listed as a manufacturer of explosives in the directory compiled by the Rawalpindi Chamber of Commerce and Industry with its office at Wah Cantt., Pakistan. It is, therefore, clear that the accused persons were carrying hand grenades, cartridges and assault rifles in the Maruti van owned by Rubina Suleman Memon (A-8) on 12-3-1993.

955. It was contended by the appellants/accused that liability cannot be imputed to A-8 for merely being the owner of the vehicle used by the conspirators for committing terrorist acts. It is pointed out by the prosecution that this factor was considered and rejected by the Designated Court in para 48, Part 30 wherein it was held that:

“In the same context, the further defence submission that A-8 was at Dubai since August 1992 and as such she cannot be held liable for such a user of the van also does not appeal to the mind. A fact cannot be lost sight of that the said movable property was standing in the name of A-8. Even accepting that A-8 was then at Dubai, still the possession of the said van will be required to be with her. In view of the same, if the said van was used for such nefarious activities then the same would lead to a logical conclusion of such a user could not have been made without her permission or her connivance. Since A-8 having not tried to give any explanation for explaining the said fact clearly reveals that she cannot escape the liability accruing due to the van standing in her name being used for such a nefarious activity.”

We are in agreement with the said conclusion.

Recoveries from Al-Hussaini Building after the blasts

956. The abandoned Maruti car bearing number MFC 1972 which was recovered from outside the gate of Siemens Factory at Worli on 12-3-1993 led the police to the flat of Rubina Suleman Memon (A-8) at Al-Hussaini Building since the car belonged to her. The police officials also inspected Flats Nos. 26 and 22 at Al-Hussaini Building and recovered several articles including Rs 4 lakhs in cash, jewellery, slippers, carpet pieces with traces of RDX and keys to the abandoned scooter containing explosives found at Naigaon crossroad vide panchnama, Ext. 337 in the presence of panch witnesses viz. Uday Narayan Vasaikar (PW 67) and Sambaji Damodar Sawant. The following witnesses deposed with regard to the same:

Deposition of Uday Narayan Vasaikar (PW 67)

957. PW 67 was the panch witness to the recoveries made at Flat No. 26 of Al-Hussaini Building on 12-3-1993. In his deposition dated 26-6-1996, he reveals as under:

(i) PW 67 described that Flat No. 27 had a spiral staircase which led to a flat on the fifth floor below.

(ii) He further deposed that Rs 4,00,000 in cash and jewellery was recovered from the said apartment.

(iii) The police recovered a green carpet and slippers with black stains as Articles 239-C and 238-B, respectively from Flat No. 22 on the fifth floor. Further, a set of keys [Article 245-B(i)], including a scooter key number 449 was recovered.

(iv) In the court, PW 67 recognised the spot panchnama (Ext. 337) as accurate.

The evidence of PW 67, therefore, corroborates with the evidence of Police Officer Pharande and the spot panchnama, Ext. 337 in material terms and, specifically, insofar as recording of recoveries made is concerned.

Deposition of Homi Sorabji Irani (PW 553)

958. PW 553 was in-charge of the investigation regarding the scooter recovered at Naigaon cross road containing explosives. On 3-7-1993, PW 553 handed over the keys of the scooter recovered from Al-Hussaini Building to PW 546 for verification.

Jayant Ramchandra Sarmokaddam (PW 546)

959. PW 546, a police officer, verified on 3-7-1993 that the keys recovered from Flat No. 22 at Al-Hussaini Building could be applied to the abandoned scooter seized by the police bearing number MH 04 Z 261 from Naigaon cross road containing explosives and prepared a panchnama being Ext. 363 recording the same. Shaikh Sharfu (PW 69) was the scooter mechanic who applied the keys to the scooter in the presence of panch witness Mohd. Hussain Noor (PW 68).

Recovery of RDX traces from Flats Nos. 22, 25 and 26 at Al-Hussaini Building

Deposition of Manohar Bhalchandra Tandel (PW 56)

960. PW 56 was the panch witness to the recoveries made on 12-3-1993 from Al-Hussaini Building by the police and the chemical analyser. The evidence of PW 56 reveals that black stains were found on the walls of Flat No. 26 and staircase leading to the seventh floor and at the staircase plywood at Al-Hussaini Building which were scraped using wet cotton swabs by the chemical analyser and collected as evidence in plastic bottles. Articles 169-A and 170-A were the cotton swabs used for taking the scraping as mentioned above. Article 173-C are the pieces of plywood which were cut off from the ceiling portion outside the left side at Al-Hussaini Building. The recovery of black RDX traces made at Al-Hussaini Building was recorded in panchnama marked as Ext. 243 and corroborates with the evidence of panch witness, PW 56.

Recoveries made from the garage and compound of Al-Hussaini Building

Deposition of Nitin Narayan Mehar (PW 47)

961. PW 47 was the panch witness to the recoveries made from the garage allotted to Flat No. 26 of the said building on 13-3-1993 and recorded the recovery of a safe marked as Article 113 in the spot panchnama marked as Ext. 192. On 15-3-1993, the safe was opened and watches worth Rs 2,00,000, jewellery and ornaments worth Rs 41,00,000 and cash were recovered and the recoveries were recorded in a panchnama marked as Ext. 193.

Deposition of Ganesh Shankar Rao (PW 48)

962. PW 48 was a jeweller by profession and was called to Mahim Police Station on 15-3-1993 to examine the jewellery and the ornaments recovered from the safe (Article 113) found in the garage of Flat No. 26 of Al-Hussaini Building on 13-3-1993. Duttanad Ramkrishna Ravankar (PW 49), a goldsmith by profession, was also called to Mahim Police Station on 15-3-1993 to examine the gold ornaments and the jewellery found in the steel safe recovered from the garage at Al-Hussaini Building. Khalid Salam Arab (PW 40) was the key maker who made the keys to open the steel safe at Mahim Police Station on 15-3-1993. It is, therefore, clear that the evidence of PWs 48, 49 and 50 corroborates with the evidence recorded in panchnama, Ext. 193 insofar as opening of the steel safe and recovery of valuables therein is concerned.

Deposition of Esamoddin Zainoddin Sayed (PW 555)

963. PW 555 was a police officer attached with Mahim Police Station as API. PW 555 was approached by the guard of Al-Hussaini Building on 21-3-1993 and, thereafter, he went to the said building and recorded the recoveries made in panchnama marked as Ext. 214 in the presence of panch witnesses, Leonelson D'Souza (PW 52) and Yakub Yasin.

Deposition of Leonelson D'Souza (PW 52)

964. PW 52 was a resident of Al-Hussaini Building in March 1993 and agreed to act as a panch witness in respect of the items recovered from the compound of the said building on 21-3-1993. He deposed as under:

(i) The recovered items included 31 gunny sack pieces, 25 folded cardboard boxes having marking of “Packric Packages Ltd. — Lahore Containers”, 34 oil stained white clothes and some plastic bags.

(ii) He further deposed that the recoveries were recorded in a panchnama marked as Ext. 214.

The evidence of PW 52, therefore, corroborates with the evidence of PW 555 and the panchnama, Ext. 214.

965. The prosecution submitted that the recoveries made from the flats and garages of the Memons at Al-Hussaini Building establish that the said building was the nucleus of the criminal conspiracy to carry out explosions in Bombay on 12-3-1993 and for several months, since December 1992, meetings were held to prepare plans and hold discussions and lastly to fill RDX in vehicles, which were eventually used as bombs. It is further clear that the Memons including A-3, A-4 and A-8, used to reside together in Flats Nos. 22, 25 and 26 at Al-Hussaini Building and were present when several conspiratorial meetings took place in the said flats. It is, therefore, clear that A-3, A-4 and A-8 knew about the conspiracy and facilitated the commission of acts pursuant to the said conspiracy.

Arrest of the appellants

966. It is submitted that the appellants arrived at the International Airport, New Delhi on 25-8-1994 and were arrested on the same day after preliminary investigation by Iqbal Singh Jaisingh Saroha (PW 674). H.M Shiromani (PW 266) and S. Swarnasingh (PW 267), Immigration Officers, stamped the disembarkation cards of A-4, A-8 and A-3, respectively, at the time of their arrival at the airport on 25-8-1994 and issued temporary residential permits marked as Exts. 1111-A, 1106-A, and 1107-A to A-3, A-4 and A-8 respectively on the said date for their stay in India. The above fact is further clarified by the deposition of the following prosecution witnesses which are as follows:

Deposition of Iqbal Singh Jaisingh Saroha (PW 674)

967. PW 674, in his deposition dated 29-6-2000, reveals as under:

(i) On 25-8-1994, PW 674 got information that members of Tiger Memon and Dawood Ibrahim's gang were arriving at Delhi Airport to carry out terrorist activities; and

(ii) PW 674, thereafter, arrested the family members who arrived at New Delhi Airport on 25-8-1974 at 1100 hrs. He arrested the family members including A-3, A-4 and A-8.

968. Ext. 2500 is the seizure memo prepared by PW 674 at the time of arrest of A-4. The following items were seized from A-4 on 25-8-1994:

(i) Pakistani passport bearing No. AA 763654 dated 12-4-1993 issued in the name of Imran Ahmed Mohammed bearing the photograph of Yusuf Abdul Razak Memon (A-4);

(ii) Pakistani photo identity card bearing No. AZ 021271510-91-224164 in the name of Imran Ahmed Mohammed bearing the photo of A-4; and

(iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25-8-1994 in the name of Imran Ahmed Mohammed.

969. Ext. 2501 is the seizure memo prepared by PW 674 at the time of arrest of Essa Abdul Razak Memon (A-3). The following items were seized from A-3 on 25-8-1994:

(i) Pakistani passport bearing No. AA-763650 dated 12-4-1993 in the name of Akhtar Ahmed Mohammed bearing the photograph of A-3; and

(ii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25-8-1994 in the name of Akhtar Ahmed Mohammed.

970. Ext. 2505 is the seizure memo prepared by PW 674 at the time of arrest of Rubina Suleman Memon (A-8). The following items were seized from A-8 on 25-8-1994:

(i) Pakistani passport bearing No. AC 001087 dated 27-4-1994 in the name of Mrs Mehtab bearing the photograph of A-8;

(ii) Pakistani photo identity card bearing No. BQ 526267/509-69-270214 in the name of Mrs Mehtab dated 29-3-1994 bearing the photo of A-8; and

(iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25-8-1994 in the name of Mrs Mehtab Aftab.

971. It is, therefore, clear that the recovery of Pakistani identity cards and Pakistani passports from the appellants at the time of their arrest at New Delhi Airport clearly prove that the appellants had relocated to Dubai from Bombay just prior to the blasts on 12-3-1993 and, thereafter, to Pakistan.

972. The prosecution also brought to our notice that the conduct of the appellants after the blasts further establishes that the appellants did not intend to cooperate with the investigation authorities in India and instead travelled on a holiday to Bangkok from Karachi which is evident from the passport entries made in Pakistani passports recovered from Yakub Abdul Razak Memon (A-1) at the time of his arrest at New Delhi Railway Station. After travelling to Bangkok, the appellants arrived at New Delhi Airport via Dubai where they were arrested on 25-8-1994 by PW 674.

973. Pakistani Passport No. AA-763650 in respect of Akhtar Ahmed Mohammed (A-3) shows that the said passport holder left Karachi on 16-4-1993 and reached Bangkok on the same day itself. The said passport holder left Bangkok on 27-4-1993. There is no arrival stamp of any country on the said passport. The said passport holder again left Karachi on 17-6-1994 and reached Dubai on the same day. Again, the said passport holder left Dubai on 25-8-1994 and reached India on the same day itself (Ext. 1553). It is clear from the photo on the passport that Akhtar Ahmed Mohammed and Essa alias Anjum Razak Memon (A-3) are one and the same persons.

974. Ext. 1551 is the Pakistani Passport No. AA-763654 in respect of Imran Ahmed Mohammed (A-4) which reveals that the said passport holder left Karachi on 17-4-1993 and reached Bangkok on the same day. The said passport holder left Bangkok on 29-4-1993. There is no arrival stamp of any country on the said passport. Again, the said passport holder left Karachi on 20-6-1994 and entered Dubai on the same day. The said passport holder left Dubai on 28-6-1994. There is no arrival stamp of any country on the passport. Again, the said passport holder left Karachi on 25-7-1994 and reached Dubai. The said person left Dubai on 10-8-1994 and re-entered Dubai on 11-8-1994. Again, the said passport holder left Dubai on 25-8-1994 and arrived at New Delhi on the same day. From the Indian passport of Yusuf Abdul Razak Memon and Pakistani passport in respect of Imran Ahmed Mohammed, it is clear that Imran Ahmed Mohammed and Yusuf Abdul Razak Memon are one and the same persons.

975. Ext. 1562 is the Pakistani Passport No. AA-763653 in respect of Mrs Mehtab Aftab Ahmed (A-8) which shows that Mrs Mehtab Aftab Ahmed left Karachi on 16-4-1993 and reached Bangkok on the same day. Again, she left Bangkok on 27-4-1993. There is no arrival stamp of any country on the said passport. Pakistani Passport No. AC-001087 in respect of Mrs Mehtab Aftab Ahmed shows that she left Karachi on 25-7-1994 and entered Dubai on the same day. She left Dubai on 10-8-1994 and re-entered Dubai on 11-8-1994. Again, she left Dubai on 25-8-1994 and entered India on the same day i.e 25-8-1994. The said passports show that Rubina Suleman Memon (A-8) and Mrs Mehtab Aftab Ahmed are one and the same person.

Other evidence against the appellants

Deposition of Rashid Fakir Mohammed Khatri (PW 417)

976. PW 417 was an Accounts Assistant at Memon Mehta Associates, a firm of Chartered Accountants in which Yakub Abdul Razak Memon (A-1) was a partner. He deposed that Essa alias Anjum (A-3) is the brother of A-1 and was looking after the business of M/s Tejarath International in Bombay in 1993. It is pertinent to note here that A-1 was charged and convicted at head secondly for arranging finance from the funds of M/s Tejarath International for achieving the objective to commit terrorist acts. The evidence on record establishes the involvement of Tejarath International in financing the air tickets of several co-accused persons.

Deposition of Lakharaju Narsinhasai Rao (PW 672)

977. PW 672 was a police officer. In his deposition dated 20-6-2000, he deposed that he recovered the details of bank accounts of Rubina Suleman Memon (A-8) from HSBC Bank, Bandra Branch and that of Essa alias Anjum Abdul Razak Memon (A-3) from Development Cooperative Bank, Mahim Branch. It is pertinent to note here that M/s Tejarath International was also having an account with Development Cooperative Bank, Mahim. As already discussed above, evidence of PW 417 clearly establishes that A-3 was involved with the management of M/s Tejarath International, a firm whose funds were involved in financing the conspiratorial activities such as booking of air tickets.

Criminal Appeal No. 419 of 2011

Appeal by the State of Maharashtra

978. The abovesaid appeal has been filed by the State against acquittal of A-2, A-6, A-7 and A-8 of the charges framed against them. Except A-8, CBI has not pressed the same against A-2, A-6 and A-7 before this Court, who was acquitted of (i) a part of charge stated in clause (a) at head secondly framed against her and (ii) charge stated in clause (b). After careful examination of all the materials placed, we are of the view that in the absence of any positive evidence, A-8 cannot be convicted for the acts done and mentioned hereinabove (part of the charge mentioned at head secondly) and the Designated Court has rightly acquitted her for the same. In the light of the above, the appeal of the State is liable to be dismissed.

Sentence

979. The Designated Court has awarded rigorous imprisonment for life to each of the appellants for commission of offences under Section 3(3) TADA and under Section 120-B IPC. The prosecution submitted that the appellants were given full opportunity to defend themselves on the question of quantum of sentence.

Essa alias Anjum Abdul Razak Memon (A-3)

980. A-3 filed a statement dated 14-9-2006 on the quantum of sentence, which is Ext. 2942. A-3, inter alia, stated that:

(i) He was a BCom student in the year 1993 and the flat was purchased by his father (deceased) and he was only staying in it and was not the owner of the same;

(ii) He has been in custody for 12 years; and

(iii) He had serious medical ailments including brain tumour and diabetes.

Yusuf Abdul Razak Memon (A-4)

981. A-4 filed a statement dated 15-9-2006 on the quantum of sentence which is Ext. 2944. A-4, inter alia, stated that:

(i) He is suffering from chronic schizophrenia;

(ii) The flat at Al-Hussaini Building was purchased by his father jointly with him since his father was managing his savings; and

(iii) He has no criminal background.

Rubina Suleman Memon (A-8)

982. A-8 filed a statement dated 14-9-2006 on the quantum of sentence which is Ext. 2943. A-8, inter alia, stated that:

(i) The vehicle bearing No. MFC 1972 was purchased by her father-in-law and she was unaware about what had happened to the vehicle after she left for Dubai to be with her husband in August 1992;

(ii) She was not in India during August 1992-August 1994; and

(iii) She has two children.

983. The Designated Court has considered all the abovesaid factors in respect of the appellants. The evidence on record establishes that A-8 was aware that the vehicle owned by her (i.e MFC 1972) was being used for terrorist acts by Tiger Memon and his associates. It is further established that Flats Nos. 22, 25 and 26 at Al-Hussaini Building, where members of the Memon family resided jointly, were the nucleus of the criminal conspiracy as they were the locations where Tiger Memon and Yakub Memon met with several other co-accused persons during the period of the conspiracy. Further, the arms and explosives smuggled into India for the purpose of the conspiracy were also kept at the said building and lastly RDX was filled in the vehicles in and outside the garages allocated to the Memons at Al-Hussaini Building which were used/planted as bombs at various places on 12-3-1993 by all the conspirators.

984. Further, it is pertinent to note here that the evidence on record reveals that the Maruti car used by A-3 was:

(a) driven by several co-accused persons including A-15, A-46 and A-11 to the landing point at Shekhadi from Bombay for landing of weapons in February 1993;

(b) loaded with RDX on the night of 11-3-1993 at Al-Hussaini Building; and

(c) parked on 12-3-1993 at Lucky Petrol Pump by A-16 and PW 2 near Shiv Sena Bhawan which exploded killing 4 persons and injuring 38 others.

The abovementioned evidence establishes that the white car driven by A-3 was used for terrorist activities by Tiger Memon and other co-accused persons.

985. Further, A-3, A-4, and A-8 resided jointly at these flats where Tiger Memon, Yakub Memon (A-1) and their associates hatched the criminal conspiracy to carry out multiple explosions in Bombay. The conduct of the appellants in not reporting any of these activities to the police and the fact that A-3 and A-4 departed from India on 11-3-1993 in itself is an incriminating circumstance to be used against the appellants. None of the appellants responded to the proclamation requiring their presence, issued by the Designated Court, which was given wide publicity.

986. The evidence on record establishes that the appellants facilitated the commission of terrorist acts as defined in Section 3(1) TADA by conniving with Tiger Memon and his associates and permitting them to use their flats and vehicles for the purposes of criminal conspiracy. The actions of the appellants squarely fall within Section 3(3) TADA insofar as the appellants have facilitated and abetted the conduct of terrorist acts by Tiger Memon and his associates.

987. After the blasts that took place in Bombay on 12-3-1993, the Memons were living together in Dubai. They never disclosed the connection of Tiger with the blasts to anyone. Their conduct of living together after fleeing from Bombay and not informing about these blasts to any of the authorities concerned at the Indian Embassy establishes that they were also involved in the conspiracy to commit the bomb blasts.

988. After the blasts, the Memons fled to Pakistan from Dubai and there is evidence that in Pakistan they had obtained Pakistani passports and national identity cards in assumed names. The Memons and their family members were leading a comfortable and luxurious life after the blasts. They had acquired properties, started business in the name and style of M/s Home Land Builders, acquired fictitious qualification certificates, driving licences, etc., all of which established that they had chosen a comfortable life in Pakistan and were determined not to return to India in their original identity. The abovesaid facts clearly establish that the members of Memon family were connected with the Bombay Bomb Blasts.

989. All the members of Memon family were declared proclaimed offenders by the Designated Court, Bombay. The rewards were also declared in Indian as well as in foreign currency for their arrest. Despite that, they did not surrender. Instead, the Memons travelled to Bangkok and Singapore from Karachi for holiday in assumed names on Pakistani passports during April 1993. They have not taken any steps to surrender before Indian authorities or Thailand authorities on their arrival to Bangkok and Singapore after having come to know about the blasts engineered by Tiger Memon nor made any attempt to return to India openly, if they had felt that bomb blasts were offences committed in India. This conduct clearly establishes that they were aware of the blasts that were engineered by Tiger Memon who was living with them right from the time of blasts i.e 12-3-1993, in Dubai, Pakistan and other places. Their documents for travel to Bangkok and Singapore from Karachi show that they have travelled on Pakistani passports using fake names. This conduct also establishes their culpability. It is also in evidence that huge amount of jewellery and cash which was abandoned by the members of Memon family was recovered from Al-Hussaini Building when they hurriedly left Bombay just before the blasts. This is also a proof that all the Memons were fully aware of the blasts and their conduct in fleeing away very clearly establishes that they were aware of the blasts and association of Tiger Memon with the blasts.

990. In view of the materials placed on record by the prosecution and the ultimate analysis of the Designated Court, we fully agree with the conviction and sentence imposed upon the appellants, consequently, the appeals filed by the appellants are liable to be dismissed.

Criminal Appeals Nos. 1127-28 of 2007

Sardar Shahwali Khan (A-54) v. State of Maharashtra

991. Mr Jaspal Singh, learned Senior Counsel appeared for the appellant (A-54) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent CBI.

992. The instant appeals are directed against the final judgment and order of conviction and sentence dated 24-11-2006 and 6-6-2007 respectively, whereby the appellant (A-54) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

993. A common charge of conspiracy was framed against all the co-conspirators including the present appellant (A-54). The material portion of the first charge against the appellant (A-54) is as follows:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

994. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts:

At head secondly, the appellant (A-54) was also charged for committing an offence punishable under Section 3(3) TADA by committing the following overt acts:

(a) He participated in the training in handling of arms, ammunition and explosives at Borghat and Andheri along with Tiger Memon and other co-conspirators;

(b) He participated in the landing and transportation of arms, ammunition and explosives which were smuggled into India at Shekhadi;

(c) He attended conspiratorial meetings at the residence of Babloo alias Nazir Ahmed Anwar Shaikh and Mobina alias Baya Moosa Bhiwandiwala (A-96) for making plans to commit terrorist acts and he also attended conspiratorial meeting at Taj Mahal Hotel;

(d) He surveyed and conducted reconnaissance of the Stock Exchange Building and BMC Building along with A-44, PW 2 and Javed Chikna (AA) for causing explosions there; and

(e) He participated along with co-conspirators in loading explosives like RDX fitted with time-device detonators in various vehicles in the preparation of vehicle bombs in the intervening night of 11-3-1993/12-3-1993.

Conviction and sentence

995. The charges mentioned above were proved against the appellant (A-54). The appellant has been convicted and sentenced for the abovesaid charges as under:

995.1 The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge firstly)

995.2 The appellant has also been convicted under Section 3(3) TADA except clause (b) and sentenced to RI for life along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge secondly)

Evidence

996. The evidence against the appellant (A-54) is in the form of:

(i) confessions made by co-accused;

(ii) testimony of prosecution witnesses; and

(iii) documentary evidence on record.

Confessional statements of co-accused

Confessional statement of Abdul Gani Ismail Turk (A-11)

997. The confessional statement of A-11 under Section 15 TADA has been recorded on 15-4-1993 and 18-4-1993 by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. The said confession reveals as under:

(i) The appellant (A-54) was present in the house of Mobina (A-96) along with Tiger Memon, Javed Chikna and other co-conspirators.

(ii) The appellant (A-54) took weapons' training which was imparted by Tiger Memon.

Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)

998. The confessional statement of A-13 under Section 15 TADA has been recorded on 16-5-1993 (1030 hrs) and 18-5-1993 (1715 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP Zone III, Bombay. The said confession reveals as under:

(i) The appellant (A-54), along with co-accused persons, was present on the seventh floor of a building behind Bhabha Hospital.

(ii) The appellant (A-54), on the instructions of Tiger Memon, administered oath to other co-accused persons that they will combat “jehad” and will not disclose anything to anybody.

(iii) The appellant (A-54) attended training in handling of arms and ammunition imparted by Tiger Memon.

(iv) The appellant (A-54) was present at the residence of Tiger Memon on 11-3-1993 around 11 p.m

Confessional statement of Mohd. Iqbal Mohammed Yusuf Shaikh (A-23)

999. The confessional statement of A-23 under Section 15 TADA has been recorded on 20-5-1993 (1000 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A-23 made the following references with regard to the appellant in his confession:

(i) The appellant (A-54), along with co-accused persons, was present on the seventh floor of a building behind Bhabha Hospital.

(ii) The appellant (A-54), along with other co-accused persons, was administered oath by Tiger Memon that they will combat “jehad”.

(iii) The appellant (A-54), along with other co-accused persons, participated in the training of arms and ammunition and explosives imparted by Tiger Memon

(iv) The appellant (A-54), along with other co-accused persons, was present in a meeting held at a flat in Bandra where Tiger Memon held discussions.

Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)

1000. The confessional statement of A-29 under Section 15 TADA has been recorded on 18-5-1993 (1830 hrs) and 21-5-1993 (1445 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confession, A-29 stated that the appellant (A-54), along with other co-accused persons, was present at the house of Tiger Memon on 11-3-1993.

Confessional statement of Zakir Hussain Noor Mohammed Shaikh (A-32)

1001. The confessional statement of A-32 under Section 15 TADA has been recorded on 16-5-1993 (1125 hrs) and 19-5-1993 (1730 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confession, A-32 stated that the appellant, along with other co-accused persons, was present at Al-Hussaini Building on the night intervening 11-3-1993/12-3-1993.

Confessional statement of Mohd. Mushtaq Moosa Tarani (A-44)

1002. The confessional statement of A-44 under Section 15 TADA has been recorded on 26-5-1993 (1655 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confession, A-44 stated that the appellant (A-54), along with him, Javed Chikna, PW 2 and Tiger Memon did reconnaissance of the BMC Building.

Confessional statement of Nasim Ashraf Shaikh Ali Barmare (A-49)

1003. The confessional statement of A-49 under Section 15 TADA has been recorded on 16-5-1993 (0930 hrs) and 18-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confession, A-49 stated that on 9-3-1993 the appellant (A-54), along with other co-accused persons, was present in a flat at Bandra, Hill Road where Tiger Memon discussed his plans with them.

Confessional statement of Shaikh Ali Shaikh Umar (A-57)

1004. The confessional statement of A-57 under Section 15 TADA has been recorded on 19-4-1993 (1200 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confession, A-57 made the following references with regard to the appellant:

(i) The appellant (A-54) was a friend of Javed Chikna and he met Tiger Memon through him.

(ii) The appellant (A-54) went to Ajmer along with Javed Chikna and the other accused persons.

(iii) The appellant (A-54), along with the other co-accused persons, was present at Al-Hussaini Building on 11-3-1993.

Confessional statement of Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98)

1005. The confessional statement of A-98 under Section 15 TADA has been recorded on 17-5-1993 (1430 hrs) and 20-5-1993 (1130 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. In his confession, A-98 stated that the appellant, along with PW 2 and others, conducted reconnaissance of the BMC Building.

Confessional statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100)

1006. The confessional statement of A-100 under Section 15 TADA has been recorded on 15-4-1993 (2330 hrs) and 17-4-1993 (1700 hrs) by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. In his confession, A-100 stated that the appellant (A-54), along with the other co-accused persons, was present at a flat in Bandra where Tiger Memon distributed Rs 5000 to each one of the accused persons.

1007. A perusal of the confessional statements of all the above accused viz. A-11, A-13, A-23, A-29, A-32, A-44, A-49, A-57, A-98 and A-100 clearly establishes the fact that it corroborates with each other in material particulars with regard to the involvement of the appellant. After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established inasmuch as:

(i) The appellant participated in the training in handling of arms and ammunition and explosives at Borghat and Andheri along with Tiger Memon and other co-conspirators;

(ii) The appellant attended conspiratorial meetings wherein plans were chalked out to commit terrorist acts;

(iii) The appellant surveyed and conducted reconnaissance of the Stock Exchange Building and BMC Building for causing explosions along with A-44, PW 2 and Javed Chikna (AA);

(iv) The appellant was present at Al-Hussaini Building at the time when loading of explosives like RDX fitted with time device detonators in various vehicles was being done in the intervening night of 11-3-1993/12-3-1993;

(v) The appellant was closely associated with Tiger Memon and on being asked by him, A-54 administered oath to the other co-accused persons;

(vi) The appellant also took oath to take part in “Jehad”;

(vii) There was a close link between the appellant and Javed Chikna (AA), who had played a crucial and pivotal role in achieving the object of the conspiracy;

(viii) The appellant was fully aware and conscious of the fact that he was waging “Jehad” and taking and administering of oath by him shows his intent and determination to cause damage and destruction; and

(ix) The appellant was fully aware and conscious of the consequences of his actions, and accordingly, played an important role in the entire conspiracy.

Deposition of prosecution witnesses

1008. Apart from the aforesaid evidence, the involvement and role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under.

Deposition of Mohd. Usman Jan Khan (PW 2)

1009. After going through his entire evidence, we summarise his evidence with reference to the appellant (A-54) as under:

(i) He knows the appellant as “Sardar”;

(ii) He identified the appellant before the court during dock proceedings;

(iii) He deposed that the appellant, along with the other co-accused persons, was involved in planning, conspiring and training;

(iv) He deposed that on 4-3-1993, at Taj Mahal Hotel, Tiger Memon asked PW 2, Bashir, Javed Chikna to survey BMC Building along with the appellant;

(v) On 5-3-1993, Bashir Khan administered oath to the accused that whatever they will do, will do for Islam and take revenge;

(vi) The appellant readily agreed to take revenge and offered to go to Pakistan for training;

(vii) PW 2, along with the other co-accused, went to the house of the appellant;

(viii) On 7-3-1993, A-54 attended the meeting held by Tiger Memon at the residence of Shakil in which Tiger Memon organised separate groups;

(ix) A-54 also attended the meeting on 8-3-1993 at the residence of Babloo. He agreed to do the work assigned to him in the organised group where Tiger Memon selected the targets which were to be attacked;

(x) PW 2, Tiger Memon and the other accused took A-54 to BMC Building on 9-3-1993 where entry and exit points to the said building were shown for the purpose of attacking the BJP and Shiv Sena Councillors;

(xi) On 10-3-1993, A-54 attended the meeting at the residence of Shakil where separate groups were formed by Tiger Memon;

(xii) A-54 was present on the night of 11-3-1993 at Al-Hussaini Building.

Training at Andheri and Borghat Districts

Deposition of Harish Chandra Keshav Pawar (PW 105)

1010. PW 105 is an eyewitness to the incident of firing. He deposed as under:

(i) At the relevant time, he was studying in 8th standard and was residing at Andheri;

(ii) On 8-3-1993, at about 0900 hrs, an event occurred on the eastern side of the hillock village Andheri;

(iii) The said event was in connection with gun firing;

(iv) 10-11 persons participated in the said firing incident;

(v) Cardboard sheets were placed by the side of the hillock;

(vi) 4/5 persons from the group of 8/10 persons were firing at the said cardboards using guns;

(vii) He deposed that he knew 3 persons from the group, namely, A-17, A-79 and A-78 (since deceased) as they were from Andheri village;

(viii) He was there for 20-25 seconds along with his friends. When Hamid Dafedar (A-78) noticed them standing, he threatened them to go otherwise they would be killed.

1011. PW 105 is an eyewitness to the practice session which took place at the hillocks of Andheri village. He was thoroughly cross-examined by the defence and he withstood the rigorous cross-examination without being shaken. The evidence of PW 105 corroborates the fact that the training in firearms was conducted at the hillocks of Andheri and 10-11 persons participated in the said training.

Deposition of Rajaram Ramchandra Kadam (PW 106)

1012. PW 106 is an eyewitness to the incident. In his evidence, he deposed as under:

(i) He is an agriculturist and resides at Andheri;

(ii) On 8-3-1993, at about 9.30 a.m, he heard the sound of firing from the side of Chinchechammal;

(iii) He went to the said place and saw two men standing armed with guns and a cardboard target that was placed near the hillock;

(iv) He deposed that he knew 5 persons from the group as they were from Andheri village;

(v) He identified them before the court as A-79, A-106, A-131, A-111 and A-78.

1013. PW 106 is also an eyewitness to the training session which took place at the hillocks of Andheri village. Both these witnesses (PWs 105 and 106) corroborate with each other on the fact that training in firearms was conducted at the abovesaid place. These witnesses also corroborate the confessional statements insofar as the said training is concerned.

Deposition of Namdeo Pundlik Mahajan (PW 587)

1014. PW 587 was a Constable attached with Goregaon Police Station, District Raigad at the relevant time. The witness deposed that:

(i) He inspected the site of the incident and collected three empties, six lead pieces, cardboard target, stones bearing the marks of hitting of bullets and a broken branch of a tree.

(ii) The aforesaid articles were collected and seized by him in the presence of panchas and a panchnama was drawn.

(iii) He wrote a complaint which was registered by Head Constable.

The evidence of PW 587 further proves that firing took place at the hillocks of village Andheri.

Deposition of Mahadeo Jadhav (PW 103)

1015. PW 103 deposed about the seizures affected by the police at the hillocks of village Andheri on 29-3-1993.

1016. Mr Jaspal Singh, learned Senior Counsel for the appellant contended that there is, in fact, no evidence on record to prove his role in the entire conspiracy. On the other hand, mere perusal of the entire evidence as mentioned hereinabove makes it clear that there is sufficient evidence on record to show that the appellant actively participated in the attainment of the objects behind the conspiracy.

1017. It is further contended on behalf of the appellant that his name is “Sardar Shahwali Khan” and not “Sardar” alone and none of the confessions actually refer to him as “Sardar Shahwali Khan”. On perusal of the instant appeal, particularly, memo of parties filed by the appellant (A-54), it is clearly discernible that his name is “Sardar Shahwali Khan s/o Shahwali Khan”, therefore, his first name is “Sardar” with father's name “Shahwali” and surname “Khan”.

1018. From the materials relied on by the prosecution, it is established that:

(i) Pursuant to the conspiracy, the appellant participated in the training in handling of arms and ammunition and explosives at Borghat and Andheri along with Tiger Memon and other co-conspirators;

(ii) The appellant participated in various conspiratorial meetings at the residence of Babloo alias Nazir Ahmed Anwar Shaikh and Mobina alias Baya Moosa Bhiwandiwala (A-96) and was a part of the core group making plans;

(iii) The appellant surveyed and conducted reconnaissance of the Stock Exchange Building and BMC Building along with A-44, PW 2 and Javed Chikna (AA) which were the proposed targets of explosion; and

(iv) The appellant was present at Al-Hussaini Building in the intervening night of 11-3-1993/12-3-1993, at the crucial time, when the activities like filling of RDX explosives in various vehicles were going on.

On the basis of the abovesaid evidence, the charges framed against the appellant (A-54) have been fully proved beyond all reasonable doubt.

Sentence

1019. We are also satisfied that the appellant was given full opportunity to defend himself on the question of quantum of sentence. The appellant filed a statement dated 27-11-2006 in which he prayed that the following factors may be considered while determining his sentence:

(i) He is the sole bread winner of his family;

(ii) He has been in custody for five years and five months; and

(iii) He has to look after his 90 years old father who is blind.

Conclusion

1020. The appellant has participated in various stages of the conspiracy from planning till execution. He was also present during the filling of RDX in the vehicles which were planted at various locations resulting in the death of hundreds of people and injuries to many. The crimes committed by the accused including the appellant (A-54) have shocked the conscience of society. The blasts on 12-3-1993 have caused massive loss to life and property and were carried out in an organised and systematic manner in which the appellant (A-54) has played an active role.

1021. In the light of the above, we are of the view that the conviction and sentence imposed by the Designated Court to the appellant (A-54) is sustainable and justified, consequently, the appeals fail and are liable to be dismissed.

Criminal Appeals Nos. 1252-53 of 2007

Ashrafur Rehman Azimulla Shaikh v. State of Maharashtra

Criminal Appeal No. 413 of 2011

State of Maharashtra v. Ashrafur Rehman Azimulla Shaikh

1022. Mr Prakash Sinha, learned counsel appeared for the appellant (A-71) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent (CBI).

1023. The appeals i.e Criminal Appeals Nos. 1252-53 of 2007 are directed against the final judgment and order of conviction and sentence dated 3-11-2006 and 31-5-2007 respectively, whereby the appellant (A-71) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993. Criminal Appeal No. 413 of 2011 filed by CBI is directed against the acquittal of A-71 under the common charge framed at head firstly i.e conspiracy. For convenience, henceforth, we will refer to the accused (A-71) as the appellant.

Charges

1024. A common charge of conspiracy was framed against all the co-conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1025. In addition to the principal common charge of conspiracy framed at head firstly against all the co-conspirators including the appellant, he was also charged on the following counts:

At head secondly, during the period between January-April 1993, the appellant agreed to keep in his possession 85 hand grenades, 350 electronic detonators, 3270 live cartridges of AK-56 rifles which were smuggled by Tiger Memon and his associates for committing terrorist acts and thereby committed an offence punishable under Section 3(3) TADA.

At head thirdly, the appellant possessed the abovementioned arms and ammunition and concealed the same in three suitcases in the damaged unused lavatory situated at the eastern side of the second floor of Musafirkhana, Bombay and thus unauthorisedly possessed them within the notified area of Greater Bombay and thereby committed an offence punishable under Section 5 TADA.

At head fourthly, the appellant, during the abovementioned period, possessed the said arms and ammunition with an intent to aid terrorists, contravened the provisions of the Arms Act, 1959, the Explosives Act, 1884, the Explosive Substances Act, 1908 and the Explosives Rules, 1983 and thereby committed an offence punishable under Section 6 TADA.

At head fifthly, the appellant possessed the abovementioned arms and ammunition which were recovered at his behest on 27-3-1993 and thereby committed an offence punishable under Sections 3 and 7 read with Sections 25(1-A) and 25(1-B)(a) of the Arms Act, 1959.

Conviction and sentence

1026. The Designated Court, after considering the evidence brought on record by the prosecution, found the appellant guilty on all the charges except the charges mentioned at heads firstly and secondly. The appellant has been convicted and sentenced for the abovesaid charges as under:

1026.1 The appellant has been convicted under Section 5 TADA for commission of the offence at head thirdly and sentenced to RI for life along with a fine of Rs 1,00,000, in default, to further undergo RI for 3 years. (charge thirdly)

1026.2 The appellant has been convicted under Section 6 TADA for commission of the offence at head fourthly and sentenced to RI for life along with a fine of Rs 1,00,000, in default, to further undergo RI for 3 years. (charge fourthly)

1026.3 The appellant has also been convicted under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959 for commission of the offence at head fifthly but no separate sentence was awarded on the said count. (charge fifthly)

Evidence

1027. The evidence against the appellant (A-71) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimony of prosecution witnesses; and

(iv) evidence of memorandum/discovery.

Out of the abovereferred four categories of evidence, the appellant's own confession and confessions made by the other co-accused were disbelieved by the Designated Court for rendering conviction in respect of charges thirdly and fourthly as well as the offences under the Arms Act. The Designated Court mainly relied on the evidence of memorandum/discovery and testimony of prosecution witnesses.

Deposition of prosecution witnesses

1028. The involvement and the role of the appellant is disclosed by the deposition of various prosecution witnesses which are as follows.

Deposition of Abdul Kadar Abubakar Khan (PW 323)

1029. PW 323 was attached with DCB-CID as an Assistant Sub-Inspector of Police. The relevant facts in his deposition are as under:

(i) He deposed that on 27-3-1993, on the basis of the information received from reliable sources, he arrested the appellant.

(ii) During interrogation, the appellant showed willingness to make a voluntary statement.

(iii) He deposed that he called two panch witnesses.

(iv) He deposed that the appellant led the police party and the panchas to Musafirkhana.

(v) In Musafirkhana, the appellant led them to an unused lavatory on the second floor where three bags of Encore Company were kept on the floor.

(vi) He deposed that the keys of the said bags were lying next to them.

(vii) The appellant opened all the bags with the keys.

(viii) The first bag was found to be containing 85 hand grenades, second bag was found to be having 350 detonators and the third bag was containing 3270 cartridges of AK-56 rifles.

(ix) He deposed that PI Shri Nandkumar Anant Chaugule (PW 444) of the Bomb Detection and Disposal Squad (BDDS) was called to defuse the hand grenades.

(x) He deposed that he lodged the complaint on 27-3-1993 and the same was marked as Ext. 1210.

(xi) He identified the appellant before the court in the dock.

1030. The counsel for the appellant submitted that the deposition of this witness (PW 323) indicates that the police did no investigation qua the alleged recovery and neither any independent witness was made to witness the same even though such witnesses were available in the Musafirkhana. He further pointed out that the police made no efforts in this direction. He further stated that the alleged disclosure statement in the memorandum panchnama is a fabricated one and, therefore, the case of the prosecution must fail. On perusal of his entire evidence and the discussion of the trial Judge, we are unable to accept the above objection.

Deposition of Nandkumar Chaugule (PW 444)

1031. The witness (PW 444) was working as an In-charge, Senior Inspector of Police, Bomb Detection and Disposal Squad (BDDS) of CID Intelligence, Bombay at the relevant time. He deposed that:

(i) On 27-3-1993, he went to Musafirkhana and reached the lavatory on the second floor.

(ii) On the spot, he saw three suitcases. Out of them, one was containing green-coloured hand grenades, the second was containing electronic detonators and the third suitcase was containing cartridges for AK-56 rifles.

(iii) He deposed that he asked his officer, PI Zarapkar to diffuse one hand grenade. Five electronic detonators were diffused by SI Desai. Thereafter, parts of the grenades and the detonators were handed over to PI Shivaji Shankar Sawant (PW 524).

The learned counsel for the appellant commented that it (deposition) does not connect the appellant with the alleged recovery at Musafirkhana. On perusal of his entire evidence, we reject the above objection of the counsel for the appellant.

Deposition of Shivaji Shankar Sawant (PW 524)

1032. PW 524 was working as a Police Inspector since 1984. At the time of the incident, he was attached with Unit III of DCB-CID (Crime Branch). He deposed that:

(i) He noted the voluntary disclosure statement made by the appellant which has been marked as Ext. 439.

(ii) He deposed that the appellant led the police party to the second floor of Musafirkhana.

(iii) From there, three suitcases were recovered and the same were containing 350 detonators, 3270 bullets of AK-47 and AK-56 rifles and 85 hand grenades.

(iv) PW 444 arrived at the spot and defused the hand grenades and the detonators.

(v) He drew the discovery panchnama which was marked as Ext. 439-A.

(vi) He deposed that he sent the articles seized for chemical analysis vide forwarding letter dated 9-6-1993 marked as Exts. 1810 and 1811.

(vii) He deposed that the CA reports dated 20-7-1993 and 7-7-1993 were received and the same were marked as Exts. 1810-A and 1811-A.

(viii) He deposed that from the perusal of CA reports, it is clearly discernible that the articles seized at the behest of the appellant are explosive materials.

Mr Sinha submitted that though this witness claims recovery of large quantity of arms, none of the police personnel enquired from the other occupants of Musafirkhana on the said date. On perusal of his entire evidence, we are satisfied that there is no substance in the said objection.

Deposition of Rajan Pinanath Dhoble (PW 585)

1033. At the time of the incident, PW 585 was attached with DCB-CID, Unit-I as a PI. He deposed as under:

(i) On 27-3-1993 after receipt of information, he arrested A-71 in CR No. 71193.

(ii) Senior PI Shri Shivaji Sawant did the interrogation of the said accused.

(iii) He was also present at the said stage.

(iv) During the said interrogation, the voluntary statement made by the accused was recorded by drawing the memorandum panchnama in the presence of panch witnesses.

(v) Thereafter, the accused led panchas and police to an unused latrine on the second floor of Haji Sabu Siddique Musafirkhana.

(vi) At the said place, the accused had taken out three suitcases.

(vii) The suitcases were found to be containing 85 hand grenades, 3270 live cartridges and 350 detonators.

(viii) The same were taken charge of by the police by further drawing recovery panchnama in the presence of panch witnesses.

(ix) Senior PI Shri Sawant registered a separate case regarding the said seizure.

(x) In the month of August 1993, he came to the conclusion that the material collected during the investigation disclosed the involvement of the arrested accused in the commission of offences under the Explosive Substances Act.

Here again, the learned counsel for the appellant submitted that not even a single entry was made in Station Diary of DCB-CID qua receiving information as to the movement of police team from their office to the house of the appellant and vice versa. Merely because of non-furnishing of any proof with regard to the movement in the Station Diary, his evidence cannot be rejected.

Deposition of Faquih Abdul Sattar (PW 331)

1034. At the relevant time, he (PW 331) was working as an Assistant Manager in the office of Mohammed Haji Sabu Siddique Musafirkhana Trust. The relevant facts in his deposition are as under:

(i) He deposed that he knew a person by name Lalubhai (A-71).

(ii) On 8-3-1993, a person came to him and told him that he was sent by Lalubhai (A-71) and he wanted two rooms for 4/5 days.

(iii) He booked the rooms and allotted Room Nos. 16 and 17.

(iv) The said person was in possession of the rooms from 8-3-1993 to 19-3-1993.

The counsel for the appellant pointed out that the statement of PW 331 and the manner in which memorandum/discovery panchnamas were prepared without obtaining his signature indicates that the appellant was framed by the police. On perusal of his evidence, we reject the said contention.

1035. From the entire evidence on record, the following stood established:

(i) The recovery of large quantity of arms and ammunition from Musafirkhana at the instance of A-71 clearly establishes that he was in conscious possession of the arms and ammunition and explosives;

(ii) He was a smuggler and had association with Tiger Memon, Dawood Ibrahim, Haji Mastan who were all smugglers;

(iii) He had booked the rooms in the Musafirkhana, from where large quantities of arms were seized; and

(iv) He was aware of the fact that arms and ammunition were kept in both the rooms.

1036. Though the counsel for the appellant commented on the prosecution witnesses who spoke about the role of the present appellant (A-71), as discussed above, we find no merit in the said contention.

Recovery

Memorandum of discovery panchnama

1037. The memorandum of panchnamas (Exts. 439 and 439-A) were recorded between 12.30 p.m and 12.45 p.m on 27-3-1993 in the office of DCB-CID. The panchas were (a) Dasarath Govind Londe (not examined since expired); and (b) Syed Badshah Gouse Mohideen (PW 85), who turned hostile. As per the prosecution, the police have recovered three suitcases of “Encore Company” containing 85 hand grenades, 350 electronic detonators and 3270 live cartridges of AK-57 rifles from the unused lavatory of the second floor of Musafirkhana.

1038. Both the documents, namely, Exts. 439 and 439-A were having the signatures of the panch witnesses. Apart from this, PI Shivaji Shankar Sawant (PW 524), also signed the same. The learned counsel for the appellant submitted that in the absence of the signature of the appellant on either side of the memorandum or discovery panchnama, the entire memorandum has to be ignored. However, the learned counsel appearing for CBI, by pointing out the signature in the said document, claimed that such signature was that of the appellant. Even if we accept that the appellant-accused has not signed the panchnama, in view of the contents therein and the statement of panch witness (though he turned hostile at a later point of time), it cannot be rejected as claimed by the counsel for the appellant. Further, one of the panchas i.e PW 85 though turned hostile, the fact remains that he accepted his signature. He also admitted the contents and informed the court that the same was explained to him. Admittedly, this was not challenged by the appellant (A-71) while cross-examining him. These aspects support the stand of the prosecution.

1039. The documents, Exts. 439 and 439-A makes it clear that the appellant-accused led the police party on foot up to the eastern side of the Musafirkhana and pointed out one damaged and unused lavatory as the place where he had kept the three suitcases. The said lavatory was having a broken door which was open. A-71 pointed out three bags kept inside the lavatory which were kept on the floor of the same. All the three bags were of Encore Company and were almost of the same size. The keys of the said bags were also lying at the said place. The said keys were in three separate bunches. A-71 took up one bunch of keys and opened one of the bags out of the three. The said bag was found to be containing 85 hand grenades. By way of sample, one of the hand grenade from the said bag was taken by PI Sawant. Thereafter, with the help of second bunch of keys, A-71 opened another bag. The bag was found to be containing four bundles of detonators. Three bundles out of the said four bundles were containing 100 detonators each, while the fourth bundle was containing 50 detonators. For sample, one detonator from each bundle was taken by PI Sawant. Thereafter, A-71 opened the third bag with the help of keys. The said bag was found to be containing 3270 cartridges of AK-56 rifles. The said cartridges were bearing three different types of markings. PI Sawant took samples of 5 cartridges, 4 cartridges and 1 cartridge having different types of markings from the said bag.

1040. In respect of the said discovery, FIR being LAC No. 15 of 1993 dated 27-3-1993 was lodged at 1530 hrs by PS/DGP/CID on the complaint of Abdul Kadar Abubakkar Khan (PW 323).

1041. While considering the common charge, namely, conspiracy, the Designated Court has recorded a finding that there is no evidence on record to establish that the recovered contraband was smuggled by Tiger Memon and his associates. The court also recorded that the evidence brought in has failed to establish precisely the period for which A-71 was in possession of the said contraband material and further, there is nothing on record to suggest for what purpose the appellant was in possession of such a huge quantity of contraband.

1042. It is relevant to point out that at the trial, the appellant-accused along with A-103, in addition to the principal charge of conspiracy framed at head firstly was further charged at head secondly for commission of the offence under Section 3(3) TADA on account of A-71, in pursuance of the conspiracy, during the period i.e January 1993 to April 1993 having agreed to keep in his possession 85 hand grenades, 350 electronic detonators, 3270 live cartridges of AK-56 rifles unauthorisedly, which were part of consignment smuggled by co-conspirators Tiger Memon and his associates for commission of terrorist acts.

1043. Regarding the discovery of arms and ammunition in large quantities, the Designated Judge has noted that though one of the panch witness had not supported the prosecution case, however, the Designated Court has held that the evidence of the officer from BDDS cannot be termed to be an interested witness as the said investigation was not affected at his behest. Considering all the relevant materials pertaining to the statement made by the accused and discovery/seizure effected in pursuance of the same and the said evidence being duly corroborated by contemporaneous document i.e panchnama referred to hereinabove and other evidence establishing the nature of contraband articles, the same will lead to the conclusion that A-71 was in possession of such articles which he had kept in the unused lavatory.

1044. As rightly concluded by the Designated Judge, all the said evidence, in clear terms, reveal that A-71 was in possession of huge quantities of contraband material within the notified area of Greater Bombay attracting the provisions of Section 5 TADA and failing to rebut the presumption arising out of such unlawful possession. The said presumption has been explained by a Constitution Bench of this Court in Sanjay Dutt v. State as the presumption of having himself possessed the same for commission of terrorist activity. In view of the same, the Designated Judge has rightly held A-71 guilty of commission of the offence under Section 5 TADA.

1045. Considering the large quantities of contraband materials in the possession of A-71, the period in which he was found to be in possession of the same and all the other relevant circumstances, it leads to the conclusion that A-71 himself being possessed the same and in the said process having contravened the provisions of the Arms Act, 1959, the Explosives Act, 1884, etc. thereby having made himself liable for commission of offences under Section 6 TADA and also under Sections 3 and 7 read with Section 25(1-A) and 25(1-B)(a) of the Arms Act, 1959.

1046. Upon a conjoint reading of the entire evidence, it is clearly established that the appellant was fully conscious and aware of the ultimate use of the smuggled arms and ammunition and explosives. Thus, the charges framed at heads thirdly and fourthly against the accused stood established.

Criminal Appeal No. 413 of 2011

Appeal by the State of Maharashtra

1047. We have already extracted the common charge of conspiracy in the earlier part of our order. The Designated Court, on going through the confessional statement of the appellant and co-accused persons viz. A-10 and A-12 disbelieved their version and rejected the same. Though Mr Gupta, learned counsel for CBI pointed out certain materials regarding the charge framed at head firstly i.e conspiracy, we are satisfied that the prosecution failed to establish the relevant materials viz. contraband, being part of the material smuggled into India by Tiger Memon and Dawood Ibrahim for commission of terrorist acts or the same being given to A-71 by Tiger Memon or any other co-conspirator and in the absence of further acceptable material in order to prove the nexus of A-71 with the conspiracy for which the charge was framed at head firstly, A-71 cannot be held liable for commission of the said offence. We agree with the conclusion arrived at by the Designated Court and the appeal of the State is liable to be dismissed.

Sentence

1048. It is brought to our notice that the appellant was given an opportunity to defend himself on the question of quantum of sentence. The appellant filed statement dated 7-11-2006 on the quantum of sentence which is Exts. 3000 and 3000-A. The appellant prayed that the following, amongst other factors, may be considered while determining his sentence:

“(1) I am 65 years of age.

(2) I had suffered from schizophrenia about three years back.

(3) Due to the same, I was required to take medicines and so also shock treatment.

(4) I am still under medication.

(5) I am also suffering from the ailment of kidney stone.

(6) I was not involved in commission of any terrorist act.

(7) I have faced the legal proceedings for about 13 years.

(8) I have already remained in custody for 2 years and 6 months.

(9) Hardly there is any record of myself having not complied with any of the conditions imposed by the court while granting the bail.

(10) I have no antecedent.

(11) I am producing xerox copies of ration card, election card and papers showing my age and I am suffering from ailment of kidney. (marked as Ext. 3000-A colly.)

(12) Considering circumstances peculiar to me i.e I was not involved in commission of terrorist act, my age and I am a sick person, I may be given the lesser punishment.”

1049. The Designated Court considered all these factors while determining the sentence for the appellant. After considering the acts committed and the statement regarding the quantum of sentence, it was held:

“(809) On the aforesaid backdrop considering the submission advanced by the learned advocate Mr H.H Ponda for A-71 that considering the character of evidence about guilt of the accused i.e the same being based upon the disclosure statement leading to the recovery of huge contraband articles from a lavatory at a public place or quantity of material recovered denoting that the same were with A-71 merely for storage purpose and hence considering his age being of 65 years or he is a sick person minimum sentence as provided under law would be warranted does not appeal to the mind after taking into consideration all the relevant circumstances relating to the offences for which A-71 has been found guilty. Such a conclusion is inevitable as the fact cannot be overlooked that A-71 was possessing such contraband material capable of causing mass destruction within the notified area. It needs no saying that a weapon of such a nature cannot be acquired and/or possessed without incurring any appreciable expenditure. Truly speaking possession of such a large quantity of contraband material with A-71 viewed from any angle i.e either himself having acquired the same or somebody else having kept with him and taking into consideration the purpose for which the same can be said to have been possessed i.e illegal use of the same for illegal purpose would warrant levying the maximum punishment prescribed under law.

(810) Thus, after taking into consideration the gravity of acts committed by A-71, nature of material possessed by him but the same being not recovered from his house and the same being recovered from an unused lavatory in Musafirkhana but concealed at the said place, A-71 being not found involved in terrorist act and considering matters disclosed from clauses 1 to 12 in answer to relevant question asked him while recording his statement upon quantum of sentence to be imposed i.e at Ext. 3000 i.e his age, the ailments suffered by him, himself not being fully recovered, himself having faced legal proceedings for 13 years, himself having no antecedents, himself not having been involved in any terrorist act, the court having not received any adverse report about his conduct, etc., during long drawn trial and having regard to the sentence given to A-107, A-72 and few others having regard to quantity of contraband material possessed by them and the material possessed by A-71 sentence of RI for life and a fine of Rs 1 lakh with a suitable sentence of further RI in event of non-payment of fine for commission of the offence under Section 5 TADA and sentence of RI for life and a fine of Rs 1 lakh with a suitable sentence of further RI in event of non-payment of fine for commission of the offence under Section 6 TADA with no separate sentence for the reasons stated earlier for commission of offence under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act for A-71 would serve the ends of justice. Needless to add that contraband material seized will require to be confiscated.”

1050. The learned counsel for the appellant submitted that under the facts and circumstances of the case, the Designated Court while sentencing the appellant erred in not striking a balance between “doctrine of proportionality” and “doctrine of rehabilitation” and according to him, the appellant was granted maximum punishment prescribed under Sections 5 and 6 TADA whereas the minimum punishment prescribed is 5 years. He further submitted that considering his age, ailment and conduct the appellant did not deserve the maximum punishment. He also pointed out that the appellant had already undergone a period of 8½ (eight-and-a-half) years approximately without remission.

1051. It is relevant to note that even according to the prosecution, all the abovementioned goods though being smuggled, were kept only in the open lavatory within the Musafirkhana. In other words, admittedly, the recovery was from an open and accessible place to all the persons visiting the Musafirkhana for any purpose including prayer or the persons staying therein. It is also relevant to point out that the prosecution failed to lead acceptable evidence to show that such recovered contrabands were used in any crime by the appellant and even the Designated Court came to the same finding. As per the proved charges under Sections 5 and 6 TADA, the minimum punishment prescribed is 5 years and maximum is life sentence. Taking note of the age, ailments and conduct of the appellant as recorded by the Designated Court itself in Part 46 of the impugned judgment noted down while confirming the conviction, “we feel that the appellant did not deserve the maximum sentence of life imprisonment”.

1052. At the time of arguments, the learned counsel for the appellant pointed out that as on date, the appellant is more than 70 years of age and is suffering from a number of ailments. About his medical condition and ailments, the learned counsel has furnished all the details in Crl. MPs Nos. 5225-26 of 2011 wherein it has been stated that the appellant is on liquid diet, he has no criminal antecedent and there is no adverse report with respect to him during the trial. It is also pointed out that the appellant has already undergone a period of 8½ years (approximately) without remission. Taking note of all these aspects, we feel that while confirming the conviction, ends of justice would be met by reducing the sentence of the appellant to RI for 10 years.

1053. Consequently, we dispose of the appeals filed by the appellant (A-71) while confirming the conviction and reduce the sentence to RI for 10 years. The appeal filed by the State in respect of acquittal ordered by the Designated Court relating to the common charge of conspiracy is also dismissed.

Criminal Appeal No. 1365 of 2007

Imtiyaz Yunusmiyan Ghavate (A-15) v. State of Maharashtra

1054. Ms Farhana Shah, learned counsel for the appellant (A-15) and Mr Mukul Gupta learned Senior Counsel, duly assisted by Mr Satyakam, learned counsel for the respondent (CBI).

1055. This appeal is directed against the final judgment and order of conviction and sentence dated 16-11-2006 and 17-7-2007 respectively, whereby the appellant (A-15) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

1056. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-15). The relevant portion of the charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1057. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts:

At head secondly, the appellant committed an offence punishable under Section 3(3) TADA by committing the following overt acts:

(a) He participated in the landings and transportation of arms, ammunition and explosives smuggled into India at Shekhadi on 3-2-1993 and 7-2-1993; and

(b) He participated in the preparation of vehicle bombs at Al-Hussaini Building on the night of 11-3-1993/12-3-1993.

At head thirdly, the appellant planted explosive laden scooter no. MH 02 2924 at Dhanji Street, Bombay on 12-3-1993 for causing explosion and thereby committed an offence punishable under Section 3(3) TADA.

At head fourthly, the appellant, by planting the abovementioned explosive laden scooter with the intention of committing murder, has thereby committed an offence punishable under Section 307 IPC.

At head fifthly, the appellant, by planting the abovementioned explosive laden scooter at Dhanji Street with the intention and knowledge of causing damage to the property, has committed an offence punishable under Section 435 read with Section 511 IPC.

At head sixthly, the appellant, by planting the abovementioned scooter, committed an offence under Section 436 read with Section 511 IPC.

At head seventhly, the appellant, by possessing the abovementioned explosive laden scooter which was planted by him at Dhanji Street, has committed an offence punishable under Section 4(a), (b) of the Explosive Substances Act, 1908.

At head eighthly, the appellant, by possessing the RDX explosives in the abovementioned scooter, without valid licence, has committed an offence under Section 9-B(1)(b) of the Explosives Act, 1884.

Conviction and sentence

1058. The Designated Judge found the appellant (A-15) guilty on all the aforesaid charges except charge (b) at head secondly. The appellant (A-15) has been convicted and sentenced for the abovesaid charges as follows:

1058.1 The appellant has been convicted for the offence of conspiracy under Section 3(3) TADA and under Section 120-B IPC read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge firstly)

1058.2 The appellant has been convicted under Section 3(3) TADA for commission of the offences at head secondly and sentenced to RI for 10 years along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge secondly)

1058.3 The appellant has been convicted under Section 3(3) TADA for commission of the offences mentioned at head thirdly and sentenced to RI for life along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge thirdly)

1058.4 The appellant has also been convicted under Section 307 IPC for commission of the offences mentioned at head fourthly and sentenced to RI for 10 years along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge fourthly)

1058.5 The appellant has been convicted under Section 435 read with Section 511 IPC for commission of the offences at head fifthly and sentenced to RI for 3½ (three-and-a-half) years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge fifthly)

1058.6 The appellant has also been convicted under Section 436 read with Section 511 IPC for commission of the offences at head sixthly and sentenced to RI for 5 years along with a fine of Rs 12,500, in default, to further undergo RI for 3 months. (charge sixthly)

1058.7 The appellant has been convicted under Section 4(b) of the Explosive Substances Act, 1908 for commission of the offence at head seventhly and sentenced to RI for 5 years along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge seventhly)

1058.8 The appellant has also been convicted under Section 9-B(1)(b) of the Explosives Act, 1884 for commission of the offence at head eighthly and sentenced to RI for 1 year along with a fine of Rs 2000, in default, to further undergo RI for 2 months. (charge eighthly)

Evidence

1059. The evidence against the appellant (A-15) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimony of prosecution witnesses; and

(iv) documentary evidence.

Confessional statement of Imtiyaz Yunusmiyan Ghavate (A-15)

1060. The confessional statement of A-15 under Section 15 TADA has been recorded on 7-5-1993 (1230 hrs) and 9-5-1993 (1330 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The following facts emerge from his confession:

(i) He was a resident of 23, Naupada, Ist Floor, Bandra (E), Bombay.

(ii) He was a good friend of Anwar Haji Theba (AA), who was his neighbour and used to work for Tiger Memon.

(iii) He was introduced to Tiger Memon by Anwar.

(iv) He, along with Asgar Yusuf Mukadam (A-10), Abdul Ismail Gani Turk (A-11), Rafiq Madi (A-46), Anwar Theba (AA), Parvez Nazir Ahmed Shaikh (A-12), Shafi (AA) and Salim, was working for Tiger in his hawala business.

(v) On 23-1-1993/24-1-1993, Anwar told the appellant that he had received a phone call from Tiger that he will be coming on that day and they had to go to the airport to receive him.

(vi) He along with Anwar, Shafi and A-11 went to the airport to receive Tiger Memon.

(vii) During the last week of January 1993 he along with Shafi (AA), A-11, Anwar, Rafiq Madi (A-46) and A-12 participated in the landing at Shekhadi. The landing did not take place for 3-4 days. During that period, they stayed at Hotel Vaisava and then shifted to Hotel Big Splash, Alibaug.

(viii) He was also present when smuggled arms and explosives were opened at Waghani Tower and re-loaded in cavities of vehicles and when bags containing explosives were sent by Tiger Memon through Dawood Taklya for safe custody.

(ix) He also helped in loading, unloading, emptying and re-loading of arms and explosives. The bags which had been brought in the vehicles were opened and found that it contained AK-56 rifles, magazines, pistols, hand grenades, cartridges and bundles of wires.

(x) At the instance of Tiger Memon, he brought one jeep containing arms and ammunition to Bombay and kept it in the garage of Gulam Hafiz Shaikh alias Baba (A-73) and handed over the key of the jeep to him.

(xi) Anwar had told him that during the riots in January 1993, their community had suffered severe loss and in order to take revenge, Tiger was imparting training of weapons to some of the persons in Dubai.

(xii) After getting training at Dubai, he came back to Bombay and Anwar met the appellant 1-2 times at Bandra Talab and told him that he has taken training in handling weapons and bombs in Dubai and very soon they would take revenge for the injustice caused to the Muslims in Bombay.

(xiii) Anwar arrived at Al-Hussaini Building on 12-3-1993 and checked the dickeys of all the scooters. Thereafter, he took a steel grey-coloured pencil from his coat pocket and inserted it in each of the black-coloured soap like chemical i.e gunpowder kept in the dickeys.

(xiv) The appellant then asked Anwar as to what he was doing, to which he replied that the bombs were ready and by using these bombs, they would take revenge for the injustice caused to their community.

(xv) As directed by Anwar, he took one old blue-coloured explosive laden scooter bearing Registration no. 2924 and parked the same in a corner of Diamond Market.

(xvi) After 5-6 days of the blast, he was arrested by Worli PS.

1061. From a perusal of the confession of the appellant, it emerges that he worked in close association with the other co-accused persons towards attainment of the objects behind the conspiracy and he also actively participated in the landings and transportation of arms and ammunition and explosives which landed at Shekhadi. It is also very much clear from his confession that he parked a scooter laden with explosives and fitted with a time pencil detonator in Diamond Market.

Confessional statements of co-accused

1062. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-15) are summarised hereinbelow.

Confessional statement of Mohd. Shoaib Mohammed Kasam Ghansar (A-9)

1063. The confessional statement of A-9 under Section 15 TADA has been recorded on 19-4-1993 (1310 hrs) and 22-4-1993 (0030 hrs) by Shri Prem Krishan Jain (PW 189), the then DCP, Zone X, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-15):

(i) A-9 used to see Gani (A-11), Rafique Madi (A-46), Imtiyaz (A-15), Parvez (A-12), Shafi, Salim and Anwar in the office at Dongri.

(ii) A-15 was present in the house of Anwar on 12-3-1993, when Asgar Yusuf Mukadam (A-10), Mohd. Shoaib and Parvez (A-12) went there with three suitcases filled with RDX.

(iii) A-15 was present along with other co-accused persons at Al-Hussaini Building on 12-3-1993 when Anwar inserted time based detonators into the black chemical filled up in the dickeys of the scooters.

Confessional statement of Asgar Yusuf Mukadam (A-10)

1064. The confessional statement of A-10 under Section 15 TADA has been recorded on 23-4-1994 (1800 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-15):

(i) A-15 used to attend Tiger's office at Dongri and assisting in the activities of hawala transactions including the delivery and receipt of funds.

(ii) A-15 was asked by Anwar to reach the residence of Tiger Memon at Al-Hussaini Building on 12-3-1993.

(iii) A-15 took an explosive laden scooter fitted with a time pencil detonator at the instance of Anwar.

Confessional statement of Abdul Gani Ismail Turk (A-11)

1065. The confessional statement of A-11 under Section 15 TADA has been recorded on 15-4-1993 (2235 hrs) and 18-4-1993 (0115 hrs) by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. A-11, with reference to the appellant, stated as under:

(i) A-15 was working with Tiger Memon.

(ii) A-15 was present at Al-Hussaini Building on 27th/28th January along with co-accused Tiger Memon, Anwar, Shafi, Yakub Memon, Rahin Memon, Parvez Shaikh, Rafique Madi and from there all of them went to Mhasla and Shekhadi for landings.

(iii) A-15 also visited Shekhadi 2-3 times and on account of landing not taking place for a few days, they stayed at Hotel Vaisava and thereafter at Hotel Big Splash, Alibaug.

(iv) On 2-2-1993/3-2-1993, he visited Waghani Tower along with A-15 and others and smuggled goods were also brought in using vehicles by co-accused Tiger, Javed Chikna, Dadabhai (A-17), Dawood Taklya and Anwar. The said goods were unloaded and checked by Tiger Memon (AA) and were found to be hand grenades, rifles, pistols, black soap, rounds, electric wires, which were reloaded in vehicles and sent to Bombay.

(v) A-15 was present at Bandra along with Anwar.

(vi) On 7-3-1993, he told the accused that Tiger Memon had returned from Dubai.

Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

1066. The confessional statement of A-12 under Section 15 TADA has been recorded on 18-4-1993 (1400 hrs) and 21-4-1993 (0650 hrs) by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. A-12, with reference to the appellant, stated as under:

(i) He was working in the office of Tiger Memon.

(ii) A-15 took the accused (A-12) to Al-Hussaini Building on the pretext that they have to go for Tiger's work wherefrom all the accused persons present there including Tiger Memon left for Mhasla.

(iii) He went to Shekhadi Coast along with other associates to help Tiger Memon (AA) in the landing of arms and ammunition and explosives, which was delayed and effected on 3-2-1993, and also in the transportation of the said material to Waghani Tower and then to Bombay using vehicles containing secret cavities for the said purposes.

(iv) In the second week of February 1993, he again went along with other associates and helped Tiger in landing at Shekhadi Coast and transportation of the consignments to the Tower and thereafter to Bombay.

(v) Tiger Memon gave two passports to Mohd. Hussain with the instruction to hand over the same to the appellant.

(vi) He was present at the residence of Anwar Theba, when Anwar and A-44 left in a Maruti van with A-9, A-10 and A-12 for planting the bombs.

(vii) Thereafter, he reached Al-Hussaini Building when Anwar inserted time device detonator in the dickeys of the scooters containing black chemical.

Confessional statement of Dawood alias Dawood Taklya Mohammed Phanse alias Phanasmiyan (A-14)

1067. The confessional statement of A-14 under Section 15 TADA has been recorded on 15-4-1993 (1755 hrs) and 17-4-1993 (1930 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A-14, in his confessional statement, with reference to the appellant stated that on 19th January, A-15 along with Rafiq Madi contacted him and informed him about the confirmation of his ticket for Dubai and also escorted him to the airport.

Confessional statement of Sayyed Abdul Rehman Shaikh (A-28)

1068. The confessional statement of A-28 under Section 15 TADA has been recorded on 23-4-1993 (1700 hrs) and 1-5-1993 (2330 hrs) by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. His confession further establishes that the appellant (A-15) was a close associate of Tiger Memon and was involved in smuggling activities with him.

Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)

1069. The confessional statement of A-29 under Section 15 TADA has been recorded on 18-5-1993 (1830 hrs) and 21-5-1993 (1445 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. His confession reveals the following facts:

(i) The appellant came along with Tiger Memon.

(ii) He actively participated in the landing of arms, ammunition and explosives at Shekhadi. He was driving the jeep and transported the arms and ammunition and explosives smuggled at Shekhadi from Waghani Tower to Bombay.

Confessional statement of Mohd. Mushtaq Moosa Tarani (A-44)

1070. The confessional statement of A-44 under Section 15 TADA has been recorded on 26-5-1993 (1655 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. His confession reveals the following facts:

(i) The appellant was present at the house of Anwar. On the instructions of Anwar, he along with A-44, visited Al-Hussaini Building to see A-10 and left a message with the watchman of the said building to send A-10 with the vehicle at the residence of Anwar. The appellant returned along with A-44. The appellant was also present when A-44 and Anwar left in the Maruti van which was brought by A-10 along with two other boys.

(ii) Anwar showed the time based detonator pencils before the appellant.

(iii) The appellant (A-15) was present at Al-Hussaini Building when A-44 returned after planting the suitcase and told him that he had planted the suitcase in the room as per the conspiratorial plan.

Confessional statement of Mohd. Rafiq alias Rafiq Madi Musa Biyariwala (A-46)

1071. The confessional statement of A-46 under Section 15 TADA has been recorded on 21-4-1993 (1900 hrs) and 23-4-1993 (2125 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. His statement reveals as under:

(i) The appellant worked with Tiger Memon and attended his Dongri office for assisting him in the business activities apart from landing operations of the smuggled goods.

(ii) He along with the accused and other associates assisted Tiger Memon in the landing at Shekhadi which took place on 3-2-1993, after a delay of 2-3 days, and then he arranged for transportation along with Dadabhai (A-17) and others.

Confessional statement of Sahikh Ali Shaikh Umar (A-57)

1072. The confessional statement of A-57 under Section 15 TADA has been recorded on 19-4-1993 (1200 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. His confession corroborates with the testimony of other accused with regard to the fact that the appellant (A-15) was working with Tiger Memon.

Confessional statement of Sujjad Alam alias Iqbal Abdul Hakim Nazir (A-61)

1073. The confessional statement of A-61 under Section 15 TADA was recorded on 21-4-1993 by Shri K.L Bishnoi (PW 193). His confessional statement corroborates with the abovesaid confessions that the appellant (A-15) participated in the landing in February 1993.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

1074. The confessional statement of A-64 under Section 15 TADA has been recorded on 22-1-1995 and 24-1-1995 by Shri H.C Singh (PW 474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The confession of A-64 corroborates with the abovesaid confessions that the appellant (A-15) participated in the landing in February 1993.

Confessional statement of Gulam Hafiz Shaikh alias Baba (A-73)

1075. The confessional statement of A-73 under Section 15 TADA has been recorded on 15-5-1993 (2205 hrs) and 17-5-1993 (0145 hrs) by Shri Vinod Balwant Lokhande, the then DCP, Airport Zone, Bombay. His confession reveals as under:

(i) A-73 knows Tiger Memon and his partners including the appellant and other co-accused.

(ii) A-15 was present at the Tower in Mhasla along with other co-accused.

(iii) A-15 was present while unloading of goods was being done from a truck and also at the time of re-loading in the Jeep and tempo.

Confessional statement of Mobina alias Baya Moosa Bhiwandiwala (A-96)

1076. The confessional statement of A-96 under Section 15 TADA has been recorded on 30-4-1993 (1800 hrs) and 2-5-1993 (1800 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. She stated that she knew the appellant (A-15) as one of Tiger's men.

1077. From the aforementioned confessional statements, it is established that:

(i) The appellant was closely associated with Tiger Memon.

(ii) He was also a close associate of Anwar.

(iii) He used to work with Tiger Memon and assisting him in his smuggling activities.

(iv) A-15 actively participated in the landings of arms and ammunition and explosives which took place at Shekhadi on both the occasions.

(v) He was present at Anwar's house on 12-3-1993 when the other co-accused came there with three suitcases filled with RDX.

(vi) The appellant knew that time based detonators were being used to cause explosions at the various selected targets.

(vii) He was also present at Al-Hussaini Building on 12-3-1993 at the time when the bombs (vehicles) were being taken to the various locations (targets) selected.

(viii) He drove the scooter filled with RDX, fitted with time device detonator and parked the same at Diamond House.

Deposition of prosecution witnesses

1078. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy as stated above is disclosed by the deposition of various prosecution witnesses which are as under.

Deposition of Mohd. Usman Jan Khan (PW 2)

1079. The relevant material in his evidence is as under:

(i) He knows the appellant as “Imtiyaz”;

(ii) He identified the appellant before the court;

(iii) Tiger Memon, Anwar, A-15, Nazir and one other person were present at Hotel Big Splash;

(iv) A meeting was held at about 12.00 p.m in Hotel Big Splash by Tiger Memon in which PW 2 and the appellant (A-15) and many others were present, thereafter, they all left for Shekhadi Coast.

From the evidence of the approver (PW 2), it is duly established that the appellant participated in the landing at Shekhadi along with the other co-accused persons.

Deposition of Deepak Narottamdas Seth (PW 21)

1080. PW 21 is an eyewitness. At the relevant time, he was a broker in Zaveri Bazaar. The following facts emerge from his deposition:

(i) On 12-3-1993, at 2 p.m, he saw the appellant (A-15) quarrelling with a feriwala in front of Diamond House.

(ii) The appellant forcibly parked a blue scooter bearing Registration No. MH 02 C 2924.

(iii) The appellant left the scooter on the pretext of urgent work and said that he would take it away after 5 to 10 minutes.

(iv) He identified the appellant before the court.

(v) Earlier, he had identified the appellant in the TIP held on 13-5-1993 by Sharad Vichare (PW 459) for which memorandum panchnama, Exts. 1459 and 1459-A were prepared by him.

Ms Farhana Shah, learned counsel for the appellant contended that the evidence of PW 21 is contradictory to that of PW 453, who is a Constable and PW 547, PI Jadhav, in view of the above, we are unable to accept the said argument. Equally, her claim that PW 21 is not trustworthy and his evidence should be discarded, is liable to be rejected.

Deposition of Tukaram Ganpat Shelambkar (PW 25)

1081. PW 25 is an eyewitness to the occurrence. He was a hawker in Zaveri Bazaar. From his deposition, the following facts emerge:

(i) He had an argument with the appellant as he wanted to park the scooter at the place where PW 25 wanted to sell his goods.

(ii) The appellant parked the scooter and left away.

(iii) He identified the Bajaj blue-coloured scooter MH 02 C 2924 (Article 22) which was parked on 12-3-1993 at the police station.

(iv) He identified the appellant in the TIP held on 21-3-1993 and 13-5-1993 conducted by Shri Vasant Kamble (PW 462) and Shri Sharad Vichare (PW 459) respectively. Though he failed to identify the appellant in the court, he identified the scooter which was parked at Dhanji Road.

From the materials on record, it is clear that the identity of the appellant who parked the blue scooter bearing Registration No. MH 02 C 2924 has been established.

1082. It was contended by Ms Farhana Shah, learned counsel for the appellant that PW 25 has not identified the appellant before the court, so his evidence should not be relied upon. It is to be noted that the witness deposed before the court on 13-12-1995 i.e after a lapse of two-and-a-half years after the incident. After a gap of more than two years, it is plausible that memory could have faded and accordingly the witness failed to identify him before the court. However, during the identification parades, which were conducted soon after the incident, PW 25 identified the appellant to be the person who quarrelled with him and parked the scooter at Diamond House. The deposition of PW 25 also corroborates with the evidence of PW 21.

Deposition of Subhash Dattaram Jhadav (PW 547)

1083. PW 547 is a police officer and was attached with L.T Marg Police Station as PI. He deposed as under:

(i) He reached the spot along with panch witnesses and Inspector Nand Kumar Chaugule (PW 444).

(ii) He saw the dickey of the scooter full of a blackish oily substance with pallets and he also saw one pipe and three tubes embedded in the said material.

(iii) He took sample of the blackish material and the remaining material was taken out and sealed in bags.

(iv) He drew a spot panchnama being Ext. 1447.

The above fact is also corroborated by the deposition of Nandkumar Chaugule (PW 444), who was an Inspector and has deposed about the fact of going to Diamond House and defusing the detonator which was inserted in the blackish substance. The abovesaid articles were seized and sent to FSL for opinion vide letter, Ext. 1866. FSL Report, Ext. 1867 confirms that the material which was taken out from the dickey of the scooter was highly explosive substance.

Purchase of Bajaj scooter

1084. The scooter bearing Registration No. MH 02 C 2924 (Article 22) was purchased by Anwar Theba (AA) which fact has been proved by Shamshudin Shaikh (PW 268), who was engaged in the business of buying and selling motorbikes and scooters. He deposed that he knew Anwar Theba (AA) and had sold the said scooter to him for a cost of Rs 19,000 which was paid by him in cash. The deposition of PW 268 is marked as Ext. 1113.

Deposition of Shankar B. More (PW 275)

1085. PW 275 was working as a pump operator for water pump installed at Nutan Nagar Cooperative Society. Besides this, he used to clean the vehicles of the members residing in the society for which they used to pay him. He identified the scooter bearing Registration No. MH 02 C 2924 (Article 22) and informed that it belonged to Anwar Bhai as he used to clean the scooter for him.

1086. In the earlier part of our order, we have expressed our views about the acceptability of the statement of Mohd. Usman Jan Khan (PW 2), validity of the confessional statement of the accused as well as the co-accused implicating the appellant (A-15) and his relationship with Tiger as well as the part played by him in association with him. The learned counsel for the appellant prayed for discarding his confession. However, in view of the explanation and the evidence of investigating officers and recording officers, discussion and ultimate conclusion of the Designated Court, we reject her request. The appellant's involvement in landing, his association with Tiger Memon, participation in planting scooter bomb have been fully established by the prosecution. We agree with the conclusion arrived at by the Designated Court.

Sentence

1087. Even at the beginning, Ms Farhana Shah, learned counsel appearing for the appellant highlighted that out of the life imprisonment, the appellant had served nearly 14 years in jail. She also highlighted that the appellant is suffering with AIDS/HIV+ve and is a sick person. She also placed his treatment particulars furnished by J.J Hospital and recent medical reports showing his CD count and his blood count. She further pointed out that in spite of continuous treatment, even at this stage, he is suffering from AIDS. As a matter of fact, considering his health condition, this Court has granted147 him interim bail on medical grounds and that is being continued even now. The fact that the appellant is suffering from AIDS/HIV+ve has not been disputed by CBI. Taking note of all these aspects including the fact that he was in jail nearly for 14 years, while confirming the conviction and sentence, in view of special circumstances, though the life sentence is the appropriate sentence for the proved charges, we order that there is no need to send him back to prison. In the peculiar circumstance, we make it clear that the period already undergone would be sufficient and with this direction, we dispose of his appeal.

Criminal Appeal No. 1224 of 2007

Vimal Thapa v. State of Maharashtra

1088. Mr Jaspal Singh, learned counsel appeared for the appellant, who is the wife of A-112 and Mr Mukul Gupta learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent (CBI).

1089. Late Shri S.K Thapa, Accused 112 died during the pendency of this appeal because of lung cancer. His widow has stepped in and is pursuing this appeal. The abovesaid appeal is directed against the final judgment and order of conviction and sentence dated 28-11-2006 and 20-7-2007 respectively, whereby A-112 (husband of the appellant herein) was convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

1090. Late Shri S.K Thapa belonged to the 1972 batch of Indian Custom Excise Service. In the year 1993, he was posted as Additional Collector of Marine and Preventive Wing of Customs, Collectorate at Bombay. The other wing of the Collectorate was Rummaging and Intelligence and at the relevant time, Shri M.N Dholphode (PW 171) was the Additional Collector and the Customs (Preventive) Collectorate was headed by Shri S.K Bhardwaj (PW 470).

Charges

1091. A common charge of conspiracy was framed against all the co-conspirators including A-112. The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1092. In addition to the abovesaid principal charge of conspiracy, A-112 was also charged on the following counts:

“In addition, to charge first, you accused, Somnath Kakaram Thapa are also charged for having committed the following offences in pursuance of the criminal conspiracy described in charge first:

At head secondly, that you Somnath Kakaram Thapa during the period you were posted as Additional Collector of Customs, Preventive, Bombay and particularly during the period from January 1993 to February 1993 in pursuance of the aforesaid criminal conspiracy and in furtherance of its object abetted and ‘knowingly facilitated the commission of terrorists’ acts and acts preparatory to terrorists' act i.e bomb blast and such other acts which were committed in Bombay and its suburbs on 12-3-1993 by intentionally aiding, and abetting Dawood Ibrahim Kaskar, Mohd. Dossa and Mushtaq alias Ibrahim alias Tiger Abdul Razak Memon and their associates and knowingly facilitated smuggling of arms, ammunition and explosives which were smuggled into India by Dawood Ibrahim Kaskar, Mohd. Dossa, Mushtaq alias Ibrahim alias Tiger Abdul Razak Memon and their associates for the purpose of committing terrorists acts by your non-interference in spite of the fact that you had specific information and knowledge that arms, ammunition and explosives were being smuggled into the country by terrorists and as Additional Collector of Customs, Preventive, you were legally bound to prevent it and that you thereby committed an offence punishable under Section 3(3) of TADA (P) Act, 1987 and within my cognizance.”

Conviction and sentence

1093. The charges mentioned above were proved against A-112 and he had been convicted and sentenced for the abovesaid charges as under:

1093.1 A-112 has been convicted for the offence of conspiracy under Section 3(3) TADA and Section 120-B IPC read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs 1,00,000, in default, to further undergo RI for 3 years. (charge firstly)

1093.2 A-112 has also been convicted under Section 3(3) TADA for commission of the offences at head secondly and sentenced to RI for life along with a fine of Rs 1,00,000, in default, to further undergo RI for 3 years. (charge secondly)

Evidence

1094. The evidence against A-112 is in the form of:

(i) confessions made by other co-conspirators (co-accused);

(ii) testimony of prosecution witnesses; and

(iii) documentary evidence.

1095. It is brought to our notice that A-112 was one of the two Additional Collectors who were posted at Bombay. He was Additional Collector (Marine and Preventive) Wing and 8 Assistant Collectors were reporting to him including Shri R.K Singh (A-102) who was Assistant Collector for Alibaug Division.

Confessional statements of co-accused

Confessional statement of Mohd. Kasam Lajpuria alias Mechanic Chacha (A-136)

1096. The confessional statement of A-136 under Section 15 TADA has been recorded on 9-11-1999 (1540 hrs) and 10-11-1999 (0900 hrs) by Shri O.P Chhatwal (PW 684), the then SP, CBI-STF, New Delhi. A-136 was working as a driver for Mohd. Dossa (AA). A brief summary of his confession with regard to A-112 is reproduced hereunder:

(i) About 6-8 months prior to the blasts, a meeting was held between Mohd. Dossa and Collector Thapa Saheb (A-112) in President Hotel which was organised by Customs Officer Iqbal Singh.

(ii) A-112 went to the hotel with Iqbal Singh.

(iii) A-112 told Mohd. Dossa that he can continue with his smuggling activities but for that he has to give some cases of seized goods of smuggling.

(iv) On 9-1-1993, arms were unloaded at Dighi Jetty.

Upon perusal of the confession of A-136 it is clear that A-112 agreed to render help to Mohd. Dossa for the smuggling activities.

1097. It has been contended by Mr Jaspal Singh on behalf of A-112 that the fact that A-112 met Mohd. Dossa has been held against him by the trial court, however, merely meeting with a smuggler is not sufficient since his job was to control smuggling and Customs Officers often mix with smugglers to make seizures or increase the number of their informants. It is also contended that there is no direct evidence that A-112 aided Mohd. Dossa or other smugglers. It is further contended by Mr Jaspal Singh that the confession of A-136 makes it clear that meeting of A-112 with Mohd. Dossa took place before the conspiracy started.

1098. In an answer, the counsel for CBI submitted that although ex facie it appears that the case against A-112 is of dereliction of duty and negligence, a closer scrutiny of the entire evidence on record would show that the appellant had a connection and understanding with the smugglers in order to facilitate a safe passage to them. It is further submitted that at the same time A-112 has created the record to show that he has done possibly everything in his official capacity to prevent the smuggling of arms and ammunition.

1099. It has been established through the confession of A-136 that there was a meeting between A-136, Mohd. Dossa and Dawood Ibrahim, where they agreed to take revenge for the atrocities committed against the Muslims. A similar meeting of Tiger Memon with Dawood Ibrahim and A-14 has also been proved through the confession of A-14. The confession of A-136 also establishes that arms and ammunition were sent by Mustafa Dossa, who was the brother of Mohd. Dossa, for which A-134 was instructed by Mohd. Dossa to make arrangements. Apart from the confession of A-136 which indicates the link between Mohd. Dossa and A-112, it has also emerged that A-112 was acquainted with Tiger Memon.

Confessional statement of Mohd. Sultan Sayyed (A-90)

1100. The confessional statement of A-90 under Section 15 TADA has been recorded on 29-4-1993 and 30-4-1993 (1430 hrs) by Shri C. Prabhakar (PW 186), the then Superintendent of Police, Thane Rural, Camp Alibaug (Raigad). A-90 was working as a Superintendent, Marine and Preventive Wing of Customs, Alibaug Circle. A-90 was working under the orders of Shri R.K Singh, (A-102), Assistant Collector. In his confessional statement A-90 stated that A-102 had told him that A-112 had asked him (A-102) to meet Dawood Phanse (A-14) who was a landing agent.

1101. It was contended by Mr Jaspal Singh on behalf of A-112 that the confessional statements of the co-accused relied upon by the prosecution were recorded by a police officer and it is not safe to base the conviction on the said confessions under Section 15 TADA. This aspect has been elaborately dealt with in the appeal of A-1. In view of our conclusion therein, there is no need to discuss the same once again.

Deposition of prosecution witnesses

1102. Apart from the aforesaid evidence, the involvement and the role of A-112 in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:

Deposition of Akbarkhan Munawarkhan Pathan (PW 98)

1103. PW 98 was an Inspector posted in the Night Mobile Patrolling Unit of Marine and Prevention Wing of Customs Department. From his deposition, the following facts emerge:

(i) He knew A-112 as he was his superior officer in the year 1993.

(ii) PW 98 identified A-112 in the court during the dock proceedings.

(iii) On 30-1-1993, A-112 gave instructions to other officers to assemble in Thane office.

(iv) After the meeting, they all first went to Indraprastha Hotel at Nagothane and then reached Purar Phata in Raigad District by sunset following A-112.

(v) PW 98 deposed that A-112 gave officers their positions at the spot.

(vi) PW 98 deposed that A-112 told the officers that contraband was to be smuggled into India by Tiger Memon and he will be coming in a Commander jeep and would be sitting next to the driver with his bodyguards sitting at the rear side, fully armed and in a ready position to fire. A-112 also told the officers that a truck or tempo will be carrying the contraband following the jeep.

(vii) PW 98 deposed that A-112 them told that they have to intercept the convoy and affect the seizure.

(viii) PW 98 deposed that they took positions and waited at the spot for about 5 hours up to midnight and thereafter A-112 called them up and asked to be in touch with him in Bombay office. Thereafter, the operation was called off.

(ix) On 31-1-1993, the officers along with A-112 went to Dehan Phata where he gave the same instructions as given at Purar Phata and surveillance was kept for the same person (Tiger Memon). After waiting for six hours, A-112 called off the ambush as no convoy arrived carrying contraband.

(x) Thereafter, no instructions were received from A-112 after 31-1-1993.

(xi) PW 98 also proved Exts. 530 and 531, reports prepared by him about the operations at Purar Phata and Behar Phata in the night of 30-1-1993/31-1-1993 respectively.

(xii) PW 98 stated that there was discussion between Mr Madhav Sriram Agharkar (PW 99) (senior most Inspector in the raiding party) and A-112 who made a suggestion that we should maintain the watch near the junction.

(xiii) PW 98 deposed that he does not remember the junction today but stated that A-112 told Mr Agarkar that the said place was the best place to keep the watch and as per the information, the said place was the perfect place for interception.

(xiv) On 31st January, in the night around 10.30 p.m, A-112 had sent a party to Shekhadi to see if there was any activity there. PW 98 and Mr Mhatre were also there in that party.

1104. Upon perusal of the aforesaid deposition, it is clear that A-112 had specific information that contraband was being smuggled into India by Tiger Memon and will be transported in a truck or tempo and that Tiger Memon will accompany the same and will be seated next to the driver and bodyguards will sit in the rear side armed with guns in ready to shoot position.

1105. It is also clear that the above fact shows that A-112 was aware of even minute details of travel of Tiger Memon with contraband. It is further submitted that it is also clear that A-112 also did not pay any heed to the suggestion of PW 99 who was a Senior Inspector and suggested a better place for watch.

Deposition of Madhav Sriram Agharkar (PW 99)

1106. PW 99 was an Inspector of Customs (Marine and Preventive) Wing. From his testimony, the following facts emerge:

(i) A-112 called him on 30-1-1993 and told him to reach Thane office.

(ii) He was further instructed to arrange for a tempo and a Maruti van.

(iii) A-112 told him that he had specific information about the landing of contraband silver on a particular route at a particular place.

(iv) A-112 then asked PW 99 to suggest the best place for keeping a watch. As the information had revealed that the contraband silver was to be landed somewhere at Shekhadi and Shrivardhan area and the same was to be transported via Mhasla-Goregaon Road, PW 99 suggested to him two spots for keeping a watch at Purar Phata and Behar Phata.

(v) A-112 asked all of them to leave the Thane office and to proceed towards Nagothane. He also accompanied them.

(vi) All the officers including A-112 left Nagothane at about 5.00 p.m and went to Purar Phata and reached there by sunset.

(vii) After reaching Purar Phata, A-112 called the other Inspectors who were accompanying the squad and disclosed the information that the “contraband silver would be transported in transport vehicles such as truck or tempo and that Tiger Memon would be piloting the said transport vehicles in the open Commander jeep and he would be sitting beside the driver with three to four bodyguards sitting behind him and all of them would be fully armed”.

(viii) Before taking positions at “Purar Phata”, PW 99 told A-112 that junction of Mhasla-Saimorbaugh-Mangaon Road and Mhasla-Goregaon Road would be better for keeping surveillance and suggested the said spot in order to cover both the said routes coming from Mhasla to Bombay.

(ix) A-112 responded and said that his information was specific that goods will go through “Purar Phata” Road.

(x) At about midnight, A-112 called off the watch/operation.

(xi) Again, they went to Behar Phata where A-112 told them that the previous day information was also for Behar Phata.

(xii) Thereafter, the operation was called off at midnight by A-112 who also told them that he will give information if watch has to be continued on the next day. PW 99 deposed that no information was received from A-112.

(xiii) The witness also proved the reports regarding operation on 30-1-1993 and 31-1-1993, bearing Exts. 530 and 531 which were prepared by PW 98.

(xiv) He identified A-112 before the court.

(xv) In the second week of February, 1993, A-112 had asked PW 99 to find out whether any chemical in liquid form, packed in barrels, had been landed by Tiger Memon at Shekhadi.

Hence, the deposition of PW 99 corroborates and supports the deposition of PW 98.

1107. Mr Jaspal Singh, learned counsel for the defence contended that A-112 acted immediately after he received the information about landing/smuggling of arms and set up an ambush. The fact that ambush could have been set up at a better location (i.e at the intersection of two roads going to Bombay) with benefit of hindsight cannot be held against A-112. It is further contended that no evidence establishes that A-112 deliberately set up the ambush at one road so as to permit the vehicles carrying arms to take the other road to Bombay.

1108. The above submissions are unacceptable. The evidence of PW 99 establishes that the setting up of the ambush at the place of choice of A-112 was done deliberately by him. A-112 told his subordinates that he has specific information about the particular route and time of landing. A-112 also told them about Tiger Memon. A-112 further told them that he has specific information that they will go through Purar Phata. A-112 called off the vigil at midnight and did not organise the same after the 31st. Ex facie it appears that it could have been an error of judgment of the officer. None of the information on record shows the smuggling of arms would be conducted by Tiger Memon; the said goods would be transported through Purar Phata; and it would be done only on 30th and 31st night.

1109. From the topography of the area, it is also clear that the vigil at Purar Phata was kept deliberately to provide a safe passage to the smugglers:

As rightly pointed out by the prosecution, from the aforesaid topography, it is clear that the ambush could have been kept at the junction as suggested by PW 99 which could have covered both the routes to Bombay. The materials clearly show that A-112 knowingly directed Nakabandi at “Purar Phata” and “Behar Phata” which left Sai-Morba Road route open for the smugglers to travel safely.

1110. It is also brought to our notice that A-112 also spread rumour of a specific information when there was none. It is also not clear as to why the vigil was called off at midnight when as a matter of practice smuggling takes place after midnight. It is also not clear why no vigil was kept after 31st night of January, 1993. All the aforesaid was justified on the basis of non-existence of specific information.

1111. The abovesaid conduct of A-112 has to be considered in the light of the fact that A-112 was duly informed by his superior that they have intelligence that ISI may send weapons along with silver or gold. The said information requested the officer to be alert. It is also to be seen that the information of the abovesaid landing was the first such information after the alert notice of 25-1-1993. The said information, amongst others, has been proved by PW 470.

Deposition of S.R Bharadwaj (PW 470)

1112. PW 470 was working as Collector of Customs (Preventive) at Bombay. From his testimony, the following facts emerge:

(i) He was the senior officer and A-112 was working under him.

(ii) On 24-1-1993/25-1-1993, he received information from DRI that some ISI syndicate located in Middle East may try to smuggle contraband items into India. He told A-112 and A-102 about this information.

(iii) A-112 told him in the end of January that there was no landing of contraband since either the information was leaked or the movement of customs officials was known. PW 470 told A-112 to ask the local officers to keep the track of the said information.

1113. A perusal of the deposition of PW 470 establishes that he asked A-112 to ask the local officers to keep track of the said information and further he had issued a letter being Ext. 1536 informing Mr R.K Singh (A-102) about landing of large quantities of automatic weapons in the next 15-30 days. This letter was copied to A-112 also. The evidence of PW 470 has to be considered in the light of the conduct of A-112, emerging from the evidence of PW 98 and PW 99.

Deposition of Bhaskar Krishanji Naik (PW 168)

1114. PW 168 was working as a Superintendent, Customs (Marine and Preventive) Wing since 28-12-1992, in Central Intelligence Unit (CIU) at Everest House, Bombay. He identified in the court the entry in the Inward Register marked as X-181 pertaining to the confidential letter written by PW 470 to R.K Singh and which was also forwarded to A-112 stating that large quantities of automatic weapons along with contraband items like gold and silver were likely to land around Bombay in the next 15-20 days, and therefore, necessary action should be taken.

1115. The deposition of this witness (PW 168) proves that A-112 had been informed well in advance that landing of arms was going to take place and it could happen anytime within 15-20 days from the time the letter was written i.e 25-1-1993.

1116. In spite of clear information that large quantities of automatic weapons will land in the next 15 days, A-112 only kept ambush for 2 days and that too at wrong places and also spread a rumour that the place was appropriate, since he has a specific information.

Deposition of Vishwambhal M. Doiphode (PW 171)

1117. PW 171 was Additional Collector of Customs (Rummaging and Intelligence) Bombay. From his testimony, the following facts emerge:

(i) He knew A-112 as he was also working under the Collector of Custom (Preventive), Shri S.K Bharadwaj (PW 470).

(ii) The word “Panther” is used to denote “Additional Collector”.

(iii) On the night of 1-2-1993, he received a call at about 2 a.m from his sources informing him that landing of contraband was taking place at Mhasla. PW 171 immediately told the same to A-112.

(iv) A-112, thereafter, gave an alert message to Mhasla, Bankot and Alibaug Divisions.

It is pointed out by the prosecution that deposition of PW 171 clearly establishes that A-112 alerted the customs officials at Bankot and Alibaug also, whereas the information received was for landing at Mhasla only.

1118. It is argued on the side of CBI that the paper work of giving alert was done by A-112 since the message was given by an Additional Collector and something was to be shown to have been done. Ext. 2594, X-711 is the VHF radio logbook. The relevant extract of the message reads as under:

“Something has happened at Bankot therefore maximum alert to be kept at D-31 Division starting immediately.”

It shows that A-112 had asked to keep a strict vigil at Bankot in the face of clear and specific information that the landing was to take place at Mhasla. The said specific information was distorted as well as converted into a vague message that something is happening in the Alibaug Division which is a very big division. In view of the specific information given by a senior officer, the message circulated by A-112 about Bankot was completely misleading since Bankot is about 45 km from Mhasla.

Deposition of Liladhar Dattaray Mhatre (PW 172)

1119. PW 172 was an Officer in Central Excise Department in Bombay. From his testimony, the following facts emerge:

(i) He received information on 29-1-1993 from his sources that landing of silver was to take place at Shekhadi on 29-1-1993/31-1-1993.

(ii) He immediately told A-112 about this information.

(iii) PW 172 received information after about 7-8 days (around 5th or 6th February) that instead of silver, landing of some chemical had taken place on 3-2-1993 at Shekhadi. He told A-112 about this information and A-112 said “kya ho sakta hai”? (what can be done) and in cross PW 172 says “Acha thik hai, main dekhta huin kya hoga” (let me see what can be done).

1120. The conduct of A-112 has to be considered in the light of the letter dated 25-1-1993 proved by PW 470. It may also be considered that the second landing could have been obstructed, if immediate action on the said letter was taken. Even the said arms and ammunition which landed on 3-2-1993 could have been traced, if the said information was shared with the Customs Department as well as the police. The appellant not only avoided alerting the Department, but also did not share the said piece of information till 25-3-1993 with the Department.

1121. It has been contended by the learned Senior Counsel for A-112 that he was surprised to hear about the landing of chemicals instead of silver and thus it can be inferred that A-112 was not aware of the landing of RDX at Shekhadi. As per the letter issued by PW 470, the information was specific that automatic weapons were to land in the next 15-20 days near Bombay. In spite of this clear information, A-112 only kept ambush for two days and told the officers on duty that he will issue directions, if further ambush is required. We are also satisfied that A-112 deliberately did not keep a vigil at the required place and even after the information that the chemical had landed and he did not take any steps to further pass on the information until 25-3-1993. It may also be seen in the light of his conduct of diverting attention of the Department from Mhasla to Bankot despite there being specific information from a senior officer of landing on 1st/2nd of February.

Deposition of Vivek Vishwanath Kadam (PW 163)

1122. PW 163 was Inspector of Customs, Marine Preventive. From his testimony, the following fact emerges:

(i) A-112, in a meeting of Customs officials told S.K Bharadwaj (PW 470) and other officers present that 60 drums of liquid chemicals had landed somewhere at the coast. The meeting took place on 25-3-1993.

(ii) A-112 did not tell in the meeting that he had received the information of landing that took place on 3-2-1993 on the next day itself.

(iii) A-112 did not disclose that he had information about the landing any time before 25-3-1993.

The above evidence proves that A-112 had information about the landing that took place on 3-2-1993; however, he chose not to share it with the other officers.

Deposition of Prabhakar Natarajan (PW 152)

1123. PW 152 was an Inspector of Customs at Shrivardhan Post. From his testimony, the following facts emerge:

(i) On 25-3-1993, a meeting was called by the Collector of Customs at the Customs Office at Murud where A-112 remarked that a landing of chemicals might have taken place at Shekhadi during the first week of February.

(ii) Until the said date i.e 25-3-1993, S.N Thapa had not taken any action regarding any landing of RDX which was said to have taken place at Shekhadi on 3-2-1993.

(iii) A-112 did not tell the other officers in the meeting that he had information about the landing.

Deposition of Saryuprasad Ramnivaj Maurya (PW 100)

1124. PW 100 was working in the Customs Office, Shrivardhan as an OTC (Operator Telecommunication). His duty was to send and receive wireless messages. He deposed as under:

(i) He deposed that the record of message received and sent on wireless is maintained by recording the same in VHF/wireless logbook.

(ii) He was shown the VHF radio logbook for a period from 11-11-1992 to 6-4-1993.

(iii) He proved Ext. 534 (Box No. 17) in court which is the VHF radio log for 2-2-1993. This message was received from Bombay by Additional Collector of Customs. A-112 was the then Additional Collector of Customs in Bombay. The entry of 2-2-1993 was marked as Ext. 534-A.

(iv) Panther word is wireless code for Additional Collector (i.e A-112).

1125. In view of the above, the following facts emerge:

(i) A-112 was fully aware of the information that the weapons of mass destruction may be smuggled to India along with silver and gold;

(ii) He kept vigil at a place which leaves room for the smugglers to escape from another route to Bombay under the guise of specific information;

(iii) He failed to produce any such specific information ever;

(iv) A-112 told them that he has specific information that Tiger Memon is going to come through that route in a particular manner;

(v) Actually, there was no specific information that the smuggler was Tiger Memon and that he was to pass through a particular route;

(vi) The onus was on the accused to prove his specific information for a particular course of conduct undertaken by him;

(vii) He also spread rumour of specific information to mislead and misguide the Department so as to help the smugglers;

(viii) He misdirected the Department by distorting a specific message of landing at Mhasla to be something happening at Bankot about 45 km away from Mhasla, particularly, when the said information came from a senior officer of the Department;

(ix) He failed to explain as to why he did that;

(x) He further failed to take account of what was done pursuant to the said information;

(xi) He did not do anything on specific information that along with silver some chemicals have arrived at Shekhadi on 3-2-1993; and

(xii) Any timely action on the part of A-112 could have traced the smuggled goods. The said action could have prevented the second landing that took place subsequently.

1126. All the abovesaid circumstances cumulatively establish the charges framed against A-112 at the trial. The said circumstances leave no room for any alternative hypothesis. We are also satisfied that pursuant to a conspiracy with Tiger Memon and his other co-conspirators, A-112 misused his official position in order to knowingly facilitate the terrorist acts.

1127. Under these circumstances, we are satisfied that the prosecution has established the guilt against the appellant and the Designated Court has rightly convicted him and sentenced him. Since he died during the pendency of this appeal, there cannot be any direction except confirming the decision of the Designated Court and clarifying the position. The appeal is disposed of accordingly.

Criminal Appeal No. 1440 of 2007

Muzammil Umar Kadri (A-25) v. State of Maharashtra

Criminal Appeal No. 1028 of 2012

State of Maharashtra v. Muzammil Umar Kadri (A-25)

1128. Heard Mr Mushtaq Ahmad, learned counsel for the appellant (A-25) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for CBI.

1129. Criminal Appeal No. 1440 of 2007 is directed against the final judgment and order of conviction and sentence dated 16-10-2006 and 30-5-2007 respectively, whereby the appellant (A-25) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993. Criminal Appeal No. 1028 of 2012 is filed by CBI against the acquittal of A-25 insofar as the charge framed at head firstly i.e conspiracy. For convenience, henceforth, we will refer to the accused A-25 as the appellant.

Charges

1130. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-25). The material part of the said charge is reproduced herein:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1131. In addition to the aforesaid principal charge of conspiracy, the appellant (A-25) was also charged on other counts which are summarised as under:

At head secondly, he committed an offence punishable under Section 3(3) TADA by participating in the landing and transportation of smuggled arms, ammunition and explosives at Shekhadi for the purpose of committing terrorist acts.

At head thirdly, in or around January 1993, with an intent to aid terrorists, he possessed 16 AK-56 rifles and 26 magazines in contravention of the provisions of the Arms Act, 1959 and the Arms Rules, 1962 and thereby committed an offence punishable under Section 6 TADA.

At head fourthly, by possessing the aforementioned rifles and magazines, he committed an offence punishable under Section 3 and Section 7 read with Sections 25(1-A) and 25(1-B)(a) of the Arms Act, 1959.

Conviction and sentence

1132. The appellant has been convicted and sentenced for the abovesaid charges as under:

1132.1 The appellant has been convicted for the offence of conspiracy under Section 3(3) TADA read with Section 120-B IPC read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge firstly)

1132.2 The appellant has also been convicted for the offence under Section 3(3) TADA and sentenced to RI for 10 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge secondly)

1132.3 The appellant has also been convicted for the offence under Section 6 TADA and sentenced to RI for 14 years along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge thirdly)

1132.4 The appellant has also been convicted for the offences punishable under Section 3 and Section 7 read with Sections 25(1-A) and 25(1-B)(a) of the Arms Act, 1959 but no separate sentence was awarded on the said count. (charge fourthly)

1133. Mr Mushtaq Ahmad, learned counsel for the appellant (A-25), after taking us through the relevant materials relied on by the prosecution, submitted that firstly his own confession is not voluntary and not genuine and, in any event, he retracted the same, hence, the conviction based on his confession is not sustainable. He also submitted that though the prosecution has relied on confessional statement of co-accused, particularly, Dawood alias Dawood Taklya Mohammed Phanse alias Phanasmiyan (A-14), Khalil Ahmed Syed Ali Nazir (A-42) and Sujjad Alam alias Iqbal Abdul Hakim Nazir (A-61), they have not attributed to any specific role of the appellant A-25. He further submitted that the recoveries alleged to have been made by the prosecution are not acceptable and, in any event, it contained several infirmities.

1134. The learned counsel appearing for CBI refuted all the above contentions and after basing reliance on oral and documentary evidence submitted that the prosecution has established the charges levelled against the appellant and the Designated Court has rightly convicted and sentenced him for life.

Evidence

1135. The evidence against the appellant (A-25) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimony of prosecution witnesses; and

(iv) documentary evidence.

Confessional statement of Muzammil Umar Kadri (A-25)

1136. The prosecution projected that the involvement of the appellant (A-25) in the conspiracy is evident from his own confession recorded under Section 15 TADA on 17-4-1993 (1400 hrs) and 20-4-1993 (1200 hrs) by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay.

1137. It is seen that except the appellant, the recording officer (PW 492) asked all the persons to leave the chamber and there was no one who could hear and see the proceedings of the same. Thereafter, PW 492 apprised about himself and also ascertained whether he has any complaint against the police and also informed him that he is not bound to make a statement and if such a statement is made, the same can be used against him. He also ascertained whether any police official or any other person threatened him to make a statement, etc. After apprising all the formalities and after satisfying himself that the accused is willing to make a statement voluntarily, he directed the officer concerned for production of the accused on 19-4-1993 after expiry of 48 hours. It is further seen that he was produced on 20-4-1993 by API Gaikwad. Again, after putting several questions to ascertain his willingness and genuineness, PW 492 recorded his statement. Though the learned counsel for the appellant submitted that he was forced to make such a statement, a perusal of the entire proceedings clearly show that the officer, who recorded the confession, followed the procedure strictly and recorded his statement after satisfying himself that the accused is giving confession voluntarily without any pressure from any corner.

1138. We were taken through the entire confession of the appellant. The confession of appellant (A-25) is summarised below:

(i) At the relevant time, he was an autorickshaw driver.

(ii) He was a resident of Mhasla and became acquainted with Dawood Taklya (A-14) who also lived in the same locality. He knew that Taklya was involved in the landing of smuggled goods.

(iii) He also knew that Rahim Laundrywala (deceased accused) and Sharif Abdul Gafoor Parkar alias Dadabhai (A-17) were partners of Dawood Taklya in the aforesaid activities.

(iv) In or around March-April 1992, he was taken by Dawood Taklya to Shekhadi for unloading of smuggled silver and its transportation to a Tower, at which time, he saw Tiger Memon, Anwar and Shafi (AA). The silver was smuggled by Tiger Memon.

(v) He was paid Rs 1200 by Dawood Taklya for the said assignment.

(vi) Again, in August 1992, he was taken by Dawood Taklya to Shekhadi for unloading of smuggled silver and its transportation to Waghani Tower, at which time, Rahim Laundrywala and A-17 were also present. He was paid Rs 1500 by Dawood Taklya. The silver was smuggled by Tiger Memon.

(vii) In January 1993, he was called at the residence of Khalil Ahmed Sayed Ali Nasir (A-42) by Rahim Laundrywala and Shafi and was asked to keep 16 rifles and 32 cassettes at his residence, which he kept with him.

(viii) On 3-2-1993, he escorted the truck carrying the smuggled consignment from Borli to Waghani Tower where he saw Tiger Memon, Dawood Taklya, A-17, Anwar, Shafi and others.

(ix) On 7-2-1993, Dawood had taken the appellant to Shekhadi in the rickshaw of Sajjad Alam alias Iqbal Abdul Hakim Nazir (A-61) since the appellant had already sold his autorickshaw.

(x) On 7-2-1993, at about 11.30 a.m, Dawood Taklya had come to his house in the autorickshaw of A-61 and took 3 rifles and 6 magazines out of the 16 rifles and 32 magazines which were kept at his house and told them that the message was received from Tiger Memon regarding the same.

(xi) Thereafter, Dawood Taklya also took him in the autorickshaw of A-61 to Shekhadi and they reached Shekhadi at about 9.00 p.m

(xii) Thereafter, Sajjad Alam was told to go to the Tower in the autorickshaw and the appellant was asked to get down at Mehendadi.

1139. Mr Mushtaq Ahmad, learned counsel for the appellant, by drawing our attention to Ext. 1654 (Hindi version of his confession) pointed out that there are certain overlappings and corrections, hence, in the absence of any explanation, the same cannot be used against him. In the light of the said contention, we have carefully verified the translated version in English. We find no substance in the said contention. On the other hand, at several places, A-25 conveyed his desire to make a statement and at the end he informed the officer, who recorded the statement, that he understood everything and the entire recorded statement is true and acceptable. In such circumstances, we are unable to accept the stand taken by the appellant. However, though the very same appellant had retracted his confession but the same was done only on 3-10-1993 i.e after a gap of nearly about 6 months. In the absence of any proper explanation for not retracting immediately after making such a statement, even though he appeared before the Magistrate/senior officers on several occasions, the fact remains that he had not retracted. Even otherwise, as observed in the earlier part of our judgment, a perusal of the retracted statement shows that the same was prepared by someone and he merely signed the same.

1140. The panchnama dated 26-3-1993 was prepared in Marathi with regard to recoveries made from A-25. The English translation of the same was also placed on record. The learned counsel for the appellant has pointed out that out of two panch witnesses, namely, Mr Walmik Shankar Gite and Mr Laxman Loku Karkera, the prosecution has examined Mr Walmik Shankar Gite only. According to the counsel, he is a resident of Bombay and he was taken by the police to a place which is at a distance of 250 km. The said panchnama recorded details of arms and ammunition seized from the house of the appellant. The learned counsel has also pointed out some discrepancy in the signature of panch witnesses. We also verified the xerox copy of the panchnama dated 26-3-1993 and we do not find any glaring discrepancy as pointed out by the counsel.

1141. A perusal of the above confession of A-25 shows that he was willingly involved in the landing of smuggled arms and ammunition at Shekhadi and that he also possessed and stored arms and ammunition at the instructions of Tiger Memon. We are also satisfied that A-25 has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 TADA and the Rules framed thereunder.

Confessional statements of co-accused

1142. Apart from his own confession, the involvement of the appellant (A-25) has also been disclosed in the confessional statements of three other co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-25) are summarised hereinbelow:

Confessional statement of Dawood alias Dawood Taklya Mohammed Phanse alias Phanasmiyan (A-14)

1143. The confessional statement of A-14 under Section 15 TADA was recorded on 15-4-1993 (1755 hrs) and 17-4-1993 (1930 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals as under:

(i) His son, Sarfaraj informed him that Shafi had kept the weapons at the appellant's house.

(ii) The appellant was present at the time of the first landing at Shekhadi.

(iii) The appellant along with Iqbal and A-42 patrolled the car in which Tiger and others (including A-14) were travelling when they were on their way to Waghani Tower along with the truck which was loaded with arms and ammunition that had landed at Shekhadi.

(iv) The appellant was present when the arms and ammunition were unloaded from the truck at Waghani Tower.

(v) At the instance of Tiger and his men, he went to the residence of the appellant to get 3 rifles and 6 magazines which were kept at his house and later on gave the same to Tiger.

(vi) The appellant was present at the time of the second landing at Shekhadi and after completion of the landing operation, A-14 returned home along with the appellant and others.

(vii) A-14 paid Rs 4000 to the appellant for the work done during the landing operation.

The above statement of A-14 makes clear the relationship of A-25 with Tiger and his men and his participation in landing and transportation of arms as well as keeping of arms in his house as directed by Tiger and taking of arms from his house.

Confessional statement of Khalil Ahmed Syed Ali Nazir (A-42)

1144. The confessional statement of A-42 under Section 15 TADA was recorded on 16-4-1993 (2030 hrs) and 19-4-1993 (2100 hrs) by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. The said confession reveals that on the night of 3-3-1993, the appellant, along with others, was sitting in the truck and after reaching Shekhadi, the smuggled material was loaded in the said truck.

Confessional statement of Sujjad Alam alias Iqbal Abdul Hakim Nazir (A-61)

1145. The confessional statement of A-61 under Section 15 TADA was recorded on 19-4-1993 (1140 hrs) and 21-4-1993 (1050 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals as under:

(i) The appellant was the man of Tiger and was present at the residence of A-42 in the evening of 20-1-1993. Shafi was also present there and they were unloading some goods from a gunny bag in a jeep. At that time, Sarfaraj (Dawood Taklya's son) was also present. After opening the gunny bags, A-61 saw 16 rifles and 32 magazines in it.

(ii) Thereafter, A-61, A-42 and the appellant took the above rifles and magazines in an autorickshaw to his, A-25's residence.

(iii) The appellant was present at Waghani Tower during the first landing at Shekhadi.

(iv) On 9-2-1993, A-61 along with A-14 and A-42 went to the appellant's residence. A-14 told the appellant to hand over 3 rifles and 6 cassettes to him. Accordingly, the appellant handed over the same in a gunny bag which was later on collected by Tiger Memon from Lone Phata.

(v) The appellant also accompanied A-61 and others while going to Shekhadi for the second landing.

1146. A perusal of the confessional statements of all the above three accused persons, namely, A-14, A-42 and A-61 establishes facts that corroborate the confessional statement of A-25 in material particulars. The involvement of the appellant is established inasmuch as:

(i) The appellant kept 16 rifles and 32 cassettes at his residence at the instance of Shafi.

(ii) The appellant participated and assisted in both the landings of arms and ammunition at Shekhadi.

(iii) The appellant was also involved in the transportation of smuggled consignment of weapons from Worli to Waghani Tower.

(iv) On 9-2-1993, A-14 had come to his house to take 3 rifles and 6 magazines at the behest of Tiger Memon.

Deposition of prosecution witnesses

1147. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:

Deposition of Laxman Karkera (PW 45)

1148. PW 45 revealed as under:

(i) On 26-3-1993, he acted as a panch witness and, on the said day, the appellant led the panchas and the police to his (A-25) house near Urdu school in Village Mehandadi.

(ii) While conducting a search in his house, the police found 3 gunny bags that were buried 3 ft deep in a half constructed bathroom. When the gunny bags were opened by the police, the same were found to be containing 13 AK-56 rifles and 26 empty magazines of AK-56 rifles. The rifles and magazines were examined by the police and the magazines could be fitted into the cavity of the said rifles.

(iii) The police then took charge of the rifles and magazines and the labels of signatures of PW 45 and others were pasted on each AK-56 rifle and magazine. Then, the same were wrapped in a paper and were labelled and sealed and signatures of PW 45 and others were obtained on the same. The police also took charge of the 3 gunny bags. All the above events were recorded by one police officer in a panchnama and the same was signed by PI Pawar, PW 45 and the co-panch. The panchnama, Ext. 158 was read over to PW 45 and the co-panch and was found to be correctly drawn.

(iv) He has correctly identified the panchnama. He has also correctly identified PI Pawar as the one who had signed the said panchnama and PSI Nerlekar as the one who had written the said panchnama.

(v) The rifles, magazines and 3 gunny bags seized by the police, as stated above, were duly identified by him in the court.

Deposition of H.B Pawar (PW 596)

1149. PW 596 revealed as under:

(i) As instructed by DCP Shri Rakesh Maria, he went along with other police officers and staff to Mhasla on 26-3-1993.

(ii) After receiving information from a person, A-14 was arrested by him in Buddha Wada locality of Mhasla.

(iii) After interrogation, A-14 led PSI Rane, PW 596 and others to Mhendadi Village and they arrested the appellant and A-42 from the chowk of the said village.

(iv) Thereafter, he interrogated both the said accused and decided to search their houses. One Shri Laxman Karkera (PW 45) agreed to act as a panch witness.

(v) Thereafter, the panch witnesses and the police party along with the appellant went to his house near an Urdu School of the said village. The said house was shown to them by the appellant himself.

(vi) The search of the said house was taken in the presence of the panch witnesses. 3 gunny bags were found to be concealed about 3 ft deep under the tiles of a bathroom.

(vii) The said 3 gunny bags were opened and were found to be containing 13 AK-56 rifles and 26 empty magazines of AK-56 rifles. Thereafter, each of the AK-56 rifles was wrapped in a brown paper and the said packet was tied by means of a string and labels of signatures of panch witnesses and his signature was affixed on each of the packet and the same were also sealed by using the lac seal and in the same manner the 26 empty magazines and the said 3 gunny bags were also wrapped in a brown paper and labelled and sealed. He recorded the description of the rifles and magazines in a panchnama by dictating the matter to PSI Nerlekar. He also took charge of the rifles, magazines and gunny bags.

(viii) The panchnama was read over to the panch witnesses and their signatures were obtained to ensure its correctness. He also countersigned the same.

1150. The above depositions of PW 45 and PW 596, corroborate with the confession of the appellant and those of the 3 co-accused persons mentioned above and unmistakably establish the possession of the contraband material by the appellant within a notified area. Even lengthy cross-examination of the above witnesses has failed to destroy their testimonies.

1151. The recovered articles were sent to FSL for opinion by Waman Kulkarni (PW 662) vide Ext. 2440 and a positive FSL Report, Ext. 2440-A was received by the police.

1152. Apart from the evidence of Police Inspector i.e PW 596, PW 588, PW 605 and PW 606, the abovesaid confessional statements of A-14, A-42 and A-61 prove the prosecution case with reference to the role of A-25 in handling and transporting arms and ammunition from Shekhadi Port to various places and it is also clear that arms were stored in his house and taken to the place as directed by Tiger.

1153. We have already highlighted the panchnama containing all the details of arms and ammunition collected from the residence of A-25. PW 45 explained all those details and he admitted the said panchnama as well as his signature therein. Though A-25 was represented by a counsel before the trial court, there was no cross-examination at all.

1154. Taking note of all the above materials, the Designated Court, after analysing the same, came to the conclusion that the material contained in the confession of A-25 clearly reveals his involvement in landing at Shekhadi and its transportation. The corroborative material contained in the confession of A-25 i.e his involvement in landing at Shekhadi and its transportation, for which he was charged with, has also been proved in the confessions of A-14, A-42 and A-61. Considering the role played by him i.e he was possessing such a large number of arms and ammunition after the Shekhadi operation was over and was holding the same for a considerable period, the same also denotes that he was a man of close confidence of prime accused persons. The Designated Court also rightly concluded that the act committed by him was for furthering the object of conspiracy and he himself having committed the same during the first half of February, 1993 i.e much prior to even Tiger Memon fixing the target for committing serial bomb blasts in Bombay and is guilty for the offence of conspiracy to commit terrorist acts punishable under Section 3(3) TADA.

1155. In view of the evidence discussed above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the offences for which he has been charged and we affirm the same.

1156. As rightly pointed out by the prosecution, the facts and events stated by the appellant in his own confession are duly corroborated by the confessions of other co-accused, thereby clearly revealing his involvement in the landings at Shekhadi and that he was unauthorisedly in possession of the contraband material. Therefore, the appellant is guilty for the offences for which he has been charged from heads firstly to fourthly.

Criminal Appeal No. 1028 of 2012

Appeal filed by the State of Maharashtra

1157. Insofar as the appeal filed by CBI against acquittal of the appellant (A-25) for the charge mentioned at head firstly viz. conspiracy is concerned, in view of the fact that the appellant (A-25) has already been convicted for the same and sentenced to RI for life, the learned Senior Counsel for CBI has not pressed the appeal before this Court, hence, we are of the view that there is no need to consider this appeal in view of the reason appended above and therefore, the appeal is liable to be dismissed.

Sentence

1158. Regarding sentence, the prosecution submitted that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 17-10-2006 (Ext. 2984) in which he prayed that the following factors, amongst others, may be considered while determining his sentence:

(i) He is the sole bread winner of his family comprising of his wife and three small children; and

(ii) His wife is suffering from a mental ailment.

With respect to the above contentions regarding quantum of sentence, the prosecution submitted that the appellant was in possession and storage of 13 AK-56 rifles and 26 magazines for a considerable period of time.

1159. From the materials, it is clear that the appellant neither dissociated himself nor resisted from participating in the landings at Shekhadi or transportation of contraband material to Waghani Tower nor did he inform the same to the police authorities or took any steps for the same. This is sufficient to show that he was responsible for the blasts in Bombay and he was very well aware of its consequences.

1160. In view of the above, we are of the view that the sentence awarded by the Designated Court to the appellant is justified and the same is confirmed. Consequently, the appeal is dismissed.

Criminal Appeal No. 1441 of 2007

Vijay Krishnaji Patil (A-116) v. State of Maharashtra

1161. Mr Chander Uday Singh, learned Senior Counsel appeared for the appellant (A-116) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent CBI.

1162. The present appeal is directed against the final judgment and order of conviction and sentence dated 26-9-2006 and 22-5-2007 respectively whereby the appellant (A-116) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

1163. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-116). The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of the TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1164. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on other count which reads as under:

At head secondly, the appellant, in pursuance of the aforesaid criminal conspiracy, intentionally aided and abetted co-accused persons by allowing them to smuggle into India and transport arms and ammunition, which were brought into the country for the purpose of committing terrorist acts which were intercepted by a team of police officers on the night of 9-1-1993 at Gondghar Phata and allowed to pass the said contraband items in lieu of a bribe of Rs 7,00,000 and thereby facilitated the commission of terrorist acts, punishable under Section 3(3) of TADA Act, 1987.”

Conviction and sentence

1165. The charges mentioned above were proved against the appellant (A-116). The appellant has been convicted and sentenced for the abovesaid charges as under:

1165.1 The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs 1,00,000, in default, to further undergo RI for 3 years. (charge firstly)

1165.2 The appellant has also been convicted under Section 3(3) TADA for commission of offences at head secondly and sentenced to RI for life along with a fine of Rs 1,00,000, in default, to further undergo RI for 3 years. (charge secondly)

Evidence

1166. At the time of commission of offence, the appellant (A-116) was posted as PSI (Police Sub-Inspector), Police Station, Shrivardhan. The evidence against the appellant (A-116) is in the form of:

(i) confessions made by other co-conspirators (co-accused);

(ii) testimony of prosecution witnesses; and

(iii) documentary evidence.

Confessional statements of co-accused

1167. The involvement of the appellant has been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-116) are summarised hereinbelow:

Confessional statement of Mohd. Kasam Lajpuria alias Mohd. Kalia alias Mechanic Chacha (A-136)

1168. The confessional statement of A-136 under Section 15 TADA has been recorded on 9-11-1999 (1540 hrs) and 10-11-1999 (0900 hrs) by Shri O.P Chhatwal (PW 684), the then SP, CBI-STF, New Delhi. A brief summary of the confession of A-136 with reference to the appellant is as under:

(i) The landing agents used to talk to officers of Customs and Police Department. The money used to be sent to the officers of the Customs and Police Department through landing agents.

(ii) At Dighi Jetty, about 265 silver ingots each weighing 35-40 kg, 15-20 wooden boxes and 15-20 tin boxes referred to as “Samaan” were unloaded from the ship. He further described that the word “Samaan” is equivalent to the word “arms” in the language of criminals.

(iii) A-136 was travelling in a car which was followed by a truck and the tempo containing arms and silver ingots. After noticing that the said two vehicles were not following, their car came back and saw that the said two vehicles had been intercepted by a police party.

(iv) An officer by name “Patil” (the appellant) stopped the said two vehicles and told Salim (A-134) that you people go after landing and did not pay anything. At that time, Uttam Shantaram Poddar (A-30) along with one Customs Officer came and it was settled that Rs 8 lakhs will be paid to the police for the said landing. Since the accused persons were not carrying such a huge amount with them, the appellant kept 5 silver bars as security on the premise that it will be returned as and when payment will be made. Accordingly, the truck bearing number 1051 and the tempo containing silver bags and arms respectively, were allowed to pass through.

Confessional statement of Mohd. Salim Mira Moiddin Shaikh alias Salim Kutta (A-134)

1169. The confessional statement of A-134 under Section 15 TADA has been recorded on 18-8-1995 (1600 hrs) and 19-8-1995 (1600 hrs) by Shri Satyakant Rohinikant Saikia (PW 481), the then DIG-CID Crime and Railways, Gujarat State, Ahmedabad. A brief summary of the confession of A-134 with reference to the appellant is as under:

(i) A-134 stated that silver bags, 25/30 wooden boxes and 15/20 green-coloured canvas bags were unloaded and reloaded into two trucks. There were about 250/300 silver ingots.

(ii) He further stated that on their return from Dighi Jetty after loading, their truck was stopped by a police official (Sub-Inspector). The police officer was annoyed because he had not received any money for the said landing. Later, Customs Officer, Jaywant Keshav Gurav (A-82) reached there in a jeep driven by A-30 and all of them spoke to the said police officer who agreed to release the trucks after accepting 6/7 silver bars as security in lieu of the bribe of Rs 10 lakhs (approx.) After few days, Feroz paid cash to the officer and got back the silver bars.

(iii) Afsal Gadbad and Arif Lamboo told A-134 that some of the arms and ammunition which had landed at Dighi Jetty were delivered by them to a man of Tiger Memon.

Confessional statement of Uttam Shantaram Poddar (A-30)

1170. The confessional statement of A-30 under Section 15 TADA has been recorded on 12-7-1993 (1720 hrs) and 15-7-1993 by Meera Borwankar (PW 187), the then Superintendent of Police, Crime Investigation Department (Crimes), Pune. A-30 stated as under:

(i) He stated that he gave Rs 25,000 to Mali Hawaldar (A-101) for Vijay Patil (A-116), Sub-Inspector of Shrivardhan in December 1992 in lieu of another landing of silver.

(ii) On 9th in the night, A-30 came to Dighi Jetty, thereafter, he was sent on the road to check, where he met Inspector Gurav (A-82) and sat in his jeep. At Gondghar Phata they saw that Vijay Patil, SI, Shrivardhan had stopped two trucks. A-136 made an offer of Rs 10 lakhs to the police.

(iii) Due to non-availability of ready cash, A-136 gave some silver bars in lieu of cash to the police and left with the trucks.

(iv) A-30 sent a message to A-116 that he would deliver the money at his residence. The accused also stated that Feroz gave Rs 2 lakhs to the Inspector at Shrivardhan.

Confessional statement of Jaywant Keshav Gurav (A-82)

1171. The confessional statement of A-82 under Section 15 TADA has been recorded on 4-5-1993 and 6-5-1993 (1000 hrs) by Shri Tikaram Shrawan Bhal (PW 191), the then Superintendent of Police, Alibaug, Raigad. A-82, in his confessional statement, referred to the role of the appellant as under:

(i) He confessed that in December 1992, customs officials received a letter indicating that weapons would be smuggled into India from a foreign country and landing thereof would be made at Western Coast and for that purpose, orders were issued to carry out patrolling and to remain alert.

(ii) A-30 met him on 9-1-1993 and said that silver landing was to take place that night from Dighi Jetty.

(iii) A-82 met A-30 again at 12.00 a.m and went towards Gondghar Phata. Around 12.30 a.m, he noticed that the trucks had been stopped by a police party led by Inspector Patil (A-116).

(iv) He saw that A-116 and 5-7 policemen of Shrivardhan Police Station were standing near the police jeep.

(v) A-30 went to Police Sub-Inspector Patil. At that place, Shabbir and 4-5 persons of Mohd. Dossa were also standing.

(vi) A-116 went to A-82 and asked as to what was to be done. A-82 told him, “you settle among yourselves”. The police, after half-an-hour following settlement, released the detained trucks.

Confessional statement of Sharif Abdul Gafoor Parkar alias Dadabhai (A-17)

1172. The confessional statement of A-17 under Section 15 TADA has been recorded on 18-4-1993 and 20-4-1993 by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. In his confession, he stated that Rs 25,000 was paid to Shrivardhan Police Station for landing on two occasions.

1173. The learned Senior Counsel for the appellant, by pointing out the above confessional statements, particularly, the confession of A-30, submitted that the prosecution has not shown or produced any material on record that the police officer was aware of the arms and ammunition that had landed at Dighi Jetty and that the same were transported along with silver boxes. We have carefully analysed the confessional statements including that of A-30 and we find no force in the submission made by the learned Senior Counsel for the appellant. On the other hand, we are unable to accept the said submission.

1174. A perusal of the confessional statements of all the above accused, namely, A-17, A-30, A-82, A-134 and A-136 clearly establish the fact that it corroborates with each other. After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established inasmuch as:

(i) The arms and ammunition had landed at Dighi Jetty in the second week of January, 1993.

(ii) The landing agents used to talk to the officers of Customs/Police Department.

(iii) The appellant knowingly let off a truck and a tempo carrying smuggled goods pursuant to negotiations on acceptance of bribe of Rs 8/10 lakhs.

(iv) As the accused persons were not carrying such a huge amount, the appellant kept 5/8 silver bars as a token for security.

(v) The special negotiation and special amount agreed upon shows that the appellant demanded unusual amount in view of the nature of goods smuggled. In other words, he was aware that the consignment was containing arms and ammunition.

(vi) The appellant, after consultation with A-82, Customs official (who had knowledge that goods could be weapons after the departmental alert of December 1992) allowed the trucks loaded with smuggled goods to proceed.

(vii) The confession of A-134 establishes the link between the landing and Mohd. Mustafa Dossa and Dawood Ibrahim and also the landed arms and ammunition with Tiger Memon.

Deposition of prosecution witnesses

1175. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the depositions of various prosecution witnesses which are as under:

Deposition of Dilip Bhiku Pansare (PW 97)

1176. PW 97 was working as a Mechanic in State Transport Corporation. In his deposition dated 12-9-1996, he stated as under:

(i) He drove one of the two trucks bearing No. 5533 in which silver bars as told to him by Shabbir Kadri were loaded on 9-1-1993 at Dighi Jetty.

(ii) He stated that at Gondghar Phata, he was stopped by a police jeep.

(iii) He stated that the policemen boarded the said truck and started shouting that there was silver in the truck.

(iv) He stated that meanwhile another truck also came following his truck and when the policemen were trying to board the truck, the persons who were travelling in the said truck said “Saab Andar Math Jao, Andar Kaanch ka Saman Hai”.

(v) He stated that thereafter, Shabbir Kadri came and started asking A-116 “what had happened”.

(vi) He stated that he took the appellant nearby a white car which was stationed behind the said truck.

(vii) He stated that meanwhile A-30 and A-82 also came there and discussion took place for about half-an-hour.

(viii) He stated that, thereafter, 5 silver bars were taken out of the truck bearing No. 5533 and were kept in the police jeep.

(ix) He stated that when he left the said spot, the other truck along with the police jeep was still there.

(x) He stated that the person who shouted to take out the keys of my truck was at the rear side portion of the truck.

(xi) He stated that police checked his truck for 15 minutes and took ten minutes for checking the other truck.

Deposition of Eknath Raghav Pedhvi (PW 156)

1177. At the relevant time, PW 156 was working as a chowkidar and safaidar (cleaner) at Dighi Jetty. In his deposition dated 15-1-1997, he stated as under:

(i) He stated that on 9-1-1993, one Shri Mane from Dighi Police Station came to his house and told him to give the keys of the jetty to the person who would approach him.

(ii) On the same night, he was approached by Shabbir who inquired about the jetty and also asked as to who had the keys of the gate to the jetty.

(iii) He gave the keys to Shabbir (AA) and told him that there was no need to worry as he had told everything to the police.

(iv) Shabbir came back at 5.30 a.m and returned the key of the jetty to him.

(v) After 3-4 days, the policeman named Mane went to his room and took him to the residence of A-116.

(vi) At the house of A-116, he received Rs 2000 which was handed over to him by Mane for giving keys of jetty to Shabbir.

(vii) He stated that the said amount was taken out by Mane from underneath the bedsheet.

Deposition of Shankar Rao Anna Patil (PW 574)

1178. PW 574 was in the Maharashtra Police Force since 1964. In his deposition dated 2-2-2000, he stated that on 22-4-1993, he went to the residence of A-116 and recovered Rs 2,50,000 from his house and a panchnama dated 22-4-1993 marked as Ext. 689 was drawn by him in the presence of panch witnesses.

Deposition of Vinod Babu Chavan (PW 590)

1179. The deposition of PW 590 was recorded on 22-2-2000. He stated that on 12-4-1993, he took charge of the weekly diary of the appellant. The said diary is marked as Article 326. A panchnama dated 12-4-1993, marked as Ext. 571, was also effected.

Deposition of Ravindra Kaka Patil (PW 94)

1180. At the relevant time, PW 94 was a Junior Engineer in Kharland Office of the Irrigation Department in Village Shrivardhan. In his deposition dated 10-9-1996, he stated as under:

(i) He stated that he knew A-116 as the police officer who used to requisite their office jeep for the work of bandobast. The driver of PW 94 became conversant with A-116 and as a result the witness also became conversant with A-116.

(ii) He stated that in March 1993, the appellant came to his house and told him that while he (PW 94) was away in January 1993, the appellant had kept five silver bricks in his room.

(iii) On being asked as to why the appellant had kept the same, A-116 replied that he placed the same as nobody could have seen it as he was not at his house.

(iv) He stated that the appellant had telephoned him and asked him in the first or second week of January, 1993 that there was a function of offering “oaty” at his residence and people who had arrived from Malad for the said function were waiting outside the sweetmeat shop and that he should take the “burfi” which was with the said persons to his house.

(v) He stated that he reached on motorcycle to the Naka and two or three persons were standing and one of them took two packets wrapped in a newspaper and kept the same in the dickey of his motorcycle. Later, the appellant came following him from behind.

(vi) He stated that on the way, the appellant asked him to hand over the “burfi” (sweets) to him since he was also going home. The appellant thereafter took both the packets.

1181. From the perusal of the above, it is clear that:

(i) The appellant was well known to the accused persons who referred to him in casual manner.

(ii) The police party, after checking both the trucks for a considerable period of time had negotiations with the smugglers.

(iii) Pursuant to the negotiations, the appellant demanded a sum of Rs 8/10 lakhs from the smugglers and kept 4-5 silver bars as a token for security.

(iv) The keys of the jetty were given to Shabbir (AA) at the instance of the police.

(v) The appellant paid Rs 2000 to PW 156 which was handed over to him by Mane (A-101) for giving keys of the jetty to Shabbir.

It is relevant to mention that the said witness was not even cross-examined on behalf of the appellant (A-116).

Other witnesses

Deposition of Yeshwant Govind Kadam (PW 109)

1182. PW 109 is a panch witness and deposed that panchnama dated 21-4-1993 marked as Ext. 563 was drawn in his presence. The said panchnama records that Ramesh Dattatray Mali (A-101), Police Constable was given Rs 15,000 by A-116 in connection with smuggling matter and this money was produced by Mali (A-101) in the presence of two panchas.

1183. The said witness (PW 109) also deposed about the panchnama dated 22-4-1993 marked as Ext. 564. The panchnama records that out of the monies taken by A-116 in smuggling, he handed over Rs 25,000 to PC Krishna Tukaram Pingle, B. No. 1499 and that PC Pingle was producing the money taken in the police station.

1184. PW 109 further deposed and proved the panchnama dated 25-4-1993 marked as Ext. 565 which records that Inspector Ashok Narayan Muneshwar (A-70) was given Rs 30,000 in connection with smuggling of goods at Dighi and that he produced the said money in front of panchas.

1185. By pointing out the above evidence, the learned Senior Counsel for the appellant, argued that at the most it denotes that at the time of interception, the police found only silver bricks in one truck and similar bricks and some boxes in the other truck. Even after counting, they found 100 silver bricks and some boxes. He further submitted that when the police enquired about the contents of the boxes, Chacha (A-136) replied that the boxes contained “watches”. In other words, according to him, the evidence and the entire materials relied on by the prosecution denote that the police had knowledge of only silver bricks and watches i.e the contents of the boxes. Finally, he submitted that the knowledge in furtherance of the act of abetment as contemplated under Section 3(3) TADA seems to be absent and cannot be inferred on the basis of surmises merely because the appellant was the PSI. In the light of the vehement arguments, we have carefully analysed the prosecution witnesses and the materials placed. Here again, we are unable to concur with the arguments. On the other hand, we are unable to accept the same.

1186. On perusal of the entire evidence as placed by the prosecution, the following facts emerge:

(i) The appellant (A-116) arranged for the keys to be given to Shabbir (AA) for the purposes of landing.

(ii) A police party led by the appellant intercepted two trucks at Gondghar Phata and after checking for a considerable period of time and after negotiating for half-an-hour, let them off;

(iii) The appellant was well acquainted with the smugglers;

(iv) The appellant had secret negotiations with the smugglers as well as consultation with the Customs Official Gurav (A-82) for fixing the special bribe amount;

(v) The appellant took silver bars as security in lieu of cash and kept the same in the house of PW 94 who duly corroborates with the fact that he kept the bars in his house;

(vi) The appellant paid Rs 2000 to PW 156 for handing over the keys of Dighi Jetty to Shabbir Kadri (AA) on 9-1-1993 the day when arms and ammunition landed at Dighi Jetty.

It may be pointed out here that sufficient evidence has been placed on record by the prosecution to show that part of the consignment which landed at Dighi Jetty was also delivered to Tiger Memon.

Sentence

1187. Coming to the sentence, it is not in dispute that the appellant (A-116) was the head of the police party. The evidence clearly reveals that the appellant was primarily responsible for the decision arrived at in allowing the said contraband smuggled material to be transported further without the same being intercepted/checked by the police in lieu of the bribe amount to be received.

1188. Further, the appellant was given full opportunity to defend himself on the question of quantum of sentence. The appellant filed statement dated 24-1-2007 on the quantum of sentence which is Ext. 2954. The appellant prayed that the following, amongst other factors, may be considered while determining his sentence:

(i) He was the sole bread winner of his family; and

(ii) He was in the government service.

1189. The Designated Court, after considering the factors pleaded by the appellant and the nature of crime committed by him, held as under:

“499 … considering the facts that A-116 was head of local police and as such was duty bound to make every attempt to prevent commission of a crime, but instead of carrying out his duty, he had allowed commission of crime and so also further crimes by allowing transportation of contraband material and having acted in such a manner for receiving a bribe amount makes it extremely difficult to accept submission for leniency….”

1190. As rightly pointed out by the learned Senior Counsel for CBI, the crime of the appellant may be considered in the light of the fact that he was the protector of law and he has breached the trust of the people of the country. Had he honestly done his duty, perhaps the whole disaster could have been obviated.

1191. In the light of the above, we are of the view that the sentence awarded by the Designated Court to the appellant is justified. The abovesaid evidence substantiates and establishes the charge of conspiracy framed against the appellant (A-116). We fully agree with the reasoning and ultimate conclusion of the Designated Court both on the conviction and sentence. Consequently, the appeal is liable to be dismissed.

Criminal Appeal No. 401 of 2008

Mohd. Salim Mira Moiddin Shaikh (A-134) v. State of Maharashtra

1192. Mr Chander Uday Singh, learned Senior Counsel appeared for the appellant (A-134) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent (CBI).

1193. The instant appeal is directed against the final judgment and order of conviction and sentence dated 19-10-2006 and 5-6-2007 respectively whereby the appellant (A-134) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

1194. A common charge of conspiracy was framed against all the co-conspirators including the appellant herein. The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1195. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts:

At head secondly, the appellant, in pursuance of the aforesaid criminal conspiracy and during the period January 1993 to March 1993, abetted and knowingly and intentionally facilitated commission of terrorists' acts and acts preparatory to terrorists' act by committing the following acts:

(a) He attended meeting at Hotel Persian Darbar, Panvel on 6-1-1993 along with co-accused R.K Singh (A-102), M.S Sayyed (A-90), Mohd. Dossa (AA) and Mohd. Kasam Lajpuria alias Mechanic Chacha (A-136) and Y.B Lotle (PW 154) and agreed to carry on smuggling activities by making payment of illegal gratification for landing of arms, ammunition at Dighi;

(b) He participated along with landing agent Uttam Poddar (A-30) and other co-accused in landing of arms, ammunition and hand grenades at Dighi Jetty on 9-1-1993 and participated in the transportation of the said arms, ammunition and hand grenades to the residence of Shabbir Kadri (AA) at Agarwada for its concealment;

(c) He participated in the transportation of the said contraband from Dighi Jetty when it was intercepted at Gondghar Phata by PSI V.K Patil (A-116) and due to mediation by Uttam Poddar (A-30), J.K Gurav (A-82) (Custom Inspector) the said trucks containing contraband were allowed to proceed for some consideration against illegal gratification;

At head thirdly, the appellant, with an intent to aid the terrorists, contravened the provisions of the Arms Act, 1959, the Arms Rules, 1962, the Explosives Act, 1884 and the Explosive Substances Act, 1908 and participated in the landing of arms and ammunition, their transportation and thereby committed an offence punishable under Section 6 TADA.

Conviction and sentence

1196. The charges mentioned above were proved against the appellant (A-134). The Designated Court found the appellant guilty on all the aforesaid charges after considering the evidence brought on record by the prosecution which are enumerated herein below:

1196.1 The appellant has been convicted for the offence of conspiracy under Section 3(3) TADA and Section 120-B IPC read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge firstly)

1196.2 The appellant has also been convicted under Section 3(3) TADA and has been sentenced to RI for 14 years along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge secondly)

1196.3 The appellant has also been convicted under Section 6 TADA and has been sentenced to RI for 14 years along with a fine of Rs 1,00,000, in default, to further undergo RI for 3 years. (charge thirdly)

Evidence

1197. The evidence against the appellant (A-134) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimony of prosecution witnesses; and

(iv) documentary evidence.

Confessional statement of Mohd. Salim Mira Moiddin Shaikh alias Salim Kutta (A-134)

1198. The involvement of A-134 in the conspiracy is evident from his own confession under Section 15 TADA recorded on 18-8-1995 and 19-8-1995 (1600 hrs) by Shri S.K Saikia (PW 481), the then DIG-CID, Crime & Railways, Gujarat. We have gone through his entire confession. His confession reveals as under:

(i) The appellant was born on 7-9-1966 and was 29 years old on the date of recording of his confession.

(ii) At the relevant time, he was a resident of Room No. 9/10, FF, BMC Chawl, Sabu Siddiq Road, Crawford Market, Bombay-1.

(iii) The appellant was previously involved in a number of criminal cases registered at Pydhonie, Byculla, Paltan Road, and Colaba Police Stations pertaining to rioting, assault and robberies.

(iv) He had beaten up some associates of Dawood Ibrahim in Crawford Market.

(v) The appellant knew several other members of the Mohd. Dossa gang and Arjun gang.

(vi) The appellant joined Mohd. Dossa gang after a meeting with Mustafa Majnu (A-138), younger brother of Mohd. Dossa (AA). The appellant became Mohd. Dossa's bodyguard.

(vii) The appellant was involved in the delivery of gold to various persons in Bombay including Raju Kodi (A-26).

(viii) Tiger Memon used to work with Mohd. Dossa and separated in 1989. In 1992, the appellant became a partner of 5% share in smuggling activities along with Mechanic Chacha (A-136) and Feroz Abdul Rafiq.

(ix) In the year 1992, the appellant participated in about 8 landings of silver in Ratnagiri (at Mhasla and Dighi) and more landings near Mangalore.

(x) In 1992, the appellant took part in the murder of Mussa, a smuggler in Bangalore.

(xi) In the first week of January, 1993, the appellant accompanied Mohd. Dossa for a meeting with Customs Officers, including Mr Singh (A-102), Mr Sayed (A-90) and one more officer at Hotel Persian Darbar, Panvel. In the meeting which went on for 3/4 hours, Mohd. Dossa discussed about landing operations and it was agreed that Customs officers will be paid Rs 7-8 lakhs per landing.

(xii) Few days after the above meeting, A-138 called Mohd. Dossa from Dubai and asked him to make arrangements for landing. Mohd. Dossa then told the appellant that large quantities of arms and ammunition had left Dubai for landing and asked him to go to Dighi Jetty at Mhasla and inform the Customs Officers.

(xiii) The appellant, thereafter, informed the Customs Officials viz. Mr Singh (A-102) and Mr Sayed (A-90) who gave permission for the said landing. The appellant was present when the landing took place at Dighi Jetty. Mechanic Chacha (A-136) and Uttam Poddar (A-30) were also present there.

(xiv) About 250-300 silver ingots, 25-30 wooden boxes and 15-20 canvas bags were landed at Dighi Jetty. These items were loaded in trucks which were subsequently intercepted by the police. The appellant tried to convince the police officer who was annoyed because he had not received money for the landing. Thereafter, Uttam Poddar (A-30) and Customs Officer Gurav (A-82) negotiated with the police, which let the trucks pass for a bribe of Rs 10 lakhs. The police officers kept 6/7 silver ingots in lieu of cash of Rs 10 lakhs.

(xv) The appellant noticed that one wooden box was containing 4 AK-56 rifles and 12 empty magazines and also that some other boxes were containing hand grenades and their pins. The military-coloured canvas bags were found to be containing four tin boxes in each bag which were filled with ammunition for AK-56 rifles.

(xvi) The aforesaid bags were fitted in the cavities made in the truck and the leftover goods were shifted to the house of Shabbir Kadri (AA) where the appellant and others also stayed after landing.

(xvii) During the stay at Shabbir's house, Arif Lamboo and Afsal Gadbad collected the silver ingots and few wooden boxes and canvas bags and delivered them to Ahmed Okliya of Surat, Gujarat on the instructions of Mustafa Majnu (A-138). The appellant was also told by Afsal Gadbad that some arms and ammunition were delivered by him at Panvel to a man of Tiger Memon. 3-4 wooden boxes and a few canvas bags still remained at Shabbir's house.

(xviii) On the day of landing which took place in the beginning of the second week of January, 1993, Mohd. Dossa was present at his office in Bombay.

(xix) The appellant along with several other co-accused persons left for Dubai in the beginning of February 1993 where they stayed for 15 days. In Dubai, the appellant met Dawood Ibrahim where he told him to be ready for revenge and riots and that for this purpose they would be given training in use of weapons at Pakistan.

(xx) 2-3 days after the meeting with Dawood Ibrahim, Abu Bakar (AA) and others left for Pakistan for receiving training. The appellant had gone to see them off at Dubai Airport. These persons were told that someone would come at the airport in Pakistan to receive them.

(xxi) On return, those co-accused persons told the appellant that they had received weapons' training at Pakistan and that they were met by Pakistani officers at the airport who took them out without any immigration formalities.

(xxii) The appellant was in Bombay on the day of the blasts but he denied the participation in the blasts. He, however, fled Bombay and stayed in Delhi, Uttar Pradesh and a “neighbouring country” and continued to work for Mohd. Dossa in smuggling of gold.

(xxiii) In July 1993, the appellant on the instructions of Mohd. Dossa, removed AK-56 rifles, hand grenades, small bombs and 2000 cartridges lying with Ahmed Okliya of Surat, Gujarat. These arms were the same which had landed at Dighi Jetty.

(xxiv) The appellant kept 1 AK-56 rifle, 2 magazines and 88 cartridges with himself which were recovered by the police at the time of his arrest.

1199. Upon perusal of the above confession of the appellant, the following facts emerge:

(i) The appellant played an active role in the entire conspiracy viz. his meeting with Dawood Ibrahim in Dubai;

(ii) He participated in the landing at Dighi and subsequent transportation of arms and ammunition;

(iii) He participated in the meeting and negotiations with Customs and police officers in January 1993 to seek permission and to fix the bribe amount for each landing.

(iv) He was a key aide of Mohd. Dossa, who was one of the main co-conspirators of the Bombay Bomb Blast Case.

1200. Though the counsel for the appellant argued that his confession cannot be relied upon due to the fact that it was not voluntary, on going through the same and the procedure followed by the recording officer, we are satisfied that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 TADA and the Rules framed thereunder. The said facts have been duly established by the testimony of the recording officer PW 481.

Confessional statements of co-accused

1201. The prosecution pointed out that the involvement of the appellant in committing overt acts, as stated above, is further strengthened in the confessional statements of the other co-accused persons which are summarised as under:

Confessional statement of Jamir Sayyed Ismail Kadri (A-133)

1202. The confessional statement of A-133 under Section 15 TADA has been recorded on 6-8-1995 (1220 hrs) and 7-8-1995 (1315 hrs) by Shri H.C Singh, the then Superintendent of Police, CBI/SPE/STF, New Delhi. A brief summary of the confession of A-133 with respect to the appellant is summarised herein under:

(i) In the night of 8-1-1993/9-1-1993, the appellant and one other friend of Shabbir, brother of A-133, came on a silver-coloured motorcycle to their house and slept there.

(ii) On the morning of 9-1-1993, Shabbir told A-133 that silver and weapons would arrive at Dighi Jetty that day.

(iii) The appellant along with Feroz (AA) and Uttam Poddar (A-30) was talking about unloading of material. Hearing their talks, A-133 gauged that goods had been sent by Mohd. Dossa.

(iv) On 9-1-1993, in the evening, around 7 p.m, the appellant and others left for Dighi Jetty.

(v) The appellant, along with Feroz and Shabbir, brought 3 wooden boxes to the house of Jamir's grandmother in the morning of 10-1-1993.

(vi) The appellant along with Feroz, Shabbir and A-133 brought 19 silver ingots and 15-20 green-coloured bags containing tin boxes and kept them in the house of Jamir's grandmother.

We are satisfied that the confession of A-133 fully corroborates in material aspect with the confession of the appellant.

Confessional statement of Uttam Shantaram Poddar (A-30)

1203. The confessional statement of A-30 under Section 15 TADA has been recorded on 12-7-1993 (1720 hrs) and 15-7-1993 (1700 hrs) by Meera Borvankar, the then Superintendent of Police, CID, Pune. The confession of A-30 corroborates that the appellant participated in the landing, transportation and safe keeping of weapons that landed at Dighi Jetty in January 1993 and which were ultimately used in the Bombay bomb blasts. A summary of the confession of A-30 implicating the appellant is as under:

(i) The appellant is an associate of Mohd. Dossa.

(ii) On 9-1-1993, the appellant participated in the landing at Dighi Jetty.

(iii) After the landing at Dighi Jetty, police intercepted the trucks.

(iv) Uttam Poddar went to Shabbir Kadri's (AA) house where the appellant was also present.

Confessional statement of Janardhan Pandurang Gambas (A-81)

1204. The confessional statement of A-81 under Section 15 TADA has been recorded on 20-5-1993 (1730 hrs) and 21-5-1993 (1715 hrs) by Shri T.S Bhai, the then Superintendent of Police, Raigad-Alibaug, Maharashtra. The prosecution submitted that the confession of A-81, a fisherman, who participated in the landing at Dighi Jetty, while not specifically naming the appellant, corroborates with the confession of the appellant insofar as the landing and transportation of arms and ammunition that landed at Dighi Jetty is concerned.

Confessional statement of Mohd. Kasam Lajpuria alias Mechanic Chacha alias Mohd. Kalia (A-136)

1205. The confessional statement of A-136 under Section 15 TADA has been recorded on 9-11-1999 (1515 hrs) and 10-9-1999 (0900 hrs) by Shri O.P Chhatwal, the then Supt. of Police, CBI, New Delhi. A summary of the confession of A-136 is as under:

(i) The appellant is an important member of Mohd. Dossa gang.

(ii) On 6-1-1993, the appellant attended the meeting with Customs Officials viz. R.K Singh and Sayyed, arranged by one Padwal (PW 146) at Hotel Persian Darbar wherein it was decided to pay Rs 9-10 lakhs for smooth landing of the consignment.

(iii) On 8-1-1993, as per the instructions of Mohd. Dossa, he along with Feroz went to Alibaugh-Mhasla on a Yamaha motorbike to inform R.K Singh and Sayyed about the proposed landing of arms and ammunition. He along with Feroz also went to inform Uttam Poddar and Shabbir Kadri for making arrangements for the landing.

(iv) On 9-1-1993, on the day of landing, he along with Feroz, Qayum, Shafi Charsi and other labourers was present at Dighi Jetty.

(v) The appellant, on the instructions of A-138, told A-136 to load the goods into the trucks.

(vi) The appellant was travelling in a tempo and the vehicles carrying smuggled arms and ammunition were intercepted by the police.

(vii) After the bomb blasts, A-136 met A-134 in Nepal while he was absconding.

1206. From the perusal of the aforesaid confession of A-136, it is clear that the appellant was actively involved in landing of arms and ammunition at Dighi Jetty and their subsequent transportation and was an important member of Mohd. Dossa gang, who were the main conspirators of the bomb blasts. The confession of A-136, therefore, corroborates with the confession of A-134 in material aspects.

Deposition of prosecution witnesses

1207. The prosecution has relied upon the depositions of several prosecution witnesses to establish the involvement of the appellant in the criminal conspiracy. Relevant facts from the deposition of witnesses that incriminate the appellant have been enumerated below:

Deposition of Yeshwant Balu Lotle (PW 154)

1208. At the relevant time, PW 154 was posted as an officer in the Central Excise Department. He attended the meeting between Customs Officers viz. R.K Singh (A-102) and M.S Sayyed (A-90) and Mohd. Dossa on 6-1-1993 at Hotel Persian Darbar, Panvel. His deposition, therefore, corroborates with the confession of A-134 that a meeting between Customs Officers and Mohd. Dossa was held on 6-1-1993 at Hotel Persian Darbar, Panvel.

Deposition of Dinesh Gopal Nakti (PW 95)

1209. PW 95's deposition reveals that he worked as a labourer with Uttam Poddar (A-30). He deposed further that around 12 persons gathered on 9-1-1993 on the instructions of Uttam Poddar to load several bags at Dighi Jetty in tempo. Deposition of PW 95, therefore, corroborates with the confession of A-134, that Uttam Poddar arranged for labour for loading and unloading of goods at Dighi Jetty on 9-1-1993 and that landing took place on the same day.

Deposition of Krishnakant Nathuram Birade (PW 96)

1210. PW 96 was another labourer present at Dighi Jetty during the landing. His deposition also corroborates with the confession of A-134 and PW 95 in that Uttam Poddar (A-30) arranged for labour for loading and unloading of goods at Dighi Jetty on 9-1-1993.

Deposition of Dilip Bhiku Pansare (PW 97)

1211. PW 97 reveals as under:

(i) He was working as a mechanic in the State Transport Corporation.

(ii) He drove one of the two trucks bearing No. 5533 in which silver, as told to him by Shabbir Kadri, was loaded on 9-1-1993 at Dighi Jetty.

(iii) He stated that at Gongdhar Phata, he was stopped by a police jeep.

(iv) He stated that the policemen boarded the said truck and started shouting that there was silver in the truck.

(v) He stated that, in the meanwhile, another truck also came following his truck and the policemen also boarded the said truck and the persons who were travelling in the said truck said “Saab Andar Math Jao, Andar Kaanch ka Saman Hai”.

(vi) He stated that, thereafter, Shabbir Kadri came and started asking Patil Sahib (A-116) “what had happened”.

(vii) He stated that he took A-116 nearby a white car which was stationed behind the said truck.

(viii) He stated that meanwhile A-30 and A-82 also came there and they talked for about half-an-hour.

(ix) He stated that, thereafter, 5 silver bricks were taken out of the truck bearing No. 5533 and were kept in the police jeep.

(x) He stated that when he left the said spot, the other truck along with the police jeep was still there.

(xi) He stated that the person who shouted to take out the keys of his truck was at the rear side portion of the truck.

(xii) He stated that the police checked his truck for 15 minutes and took 10 minutes for checking the other truck.

The above deposition of PW 97 corroborates the confession of A-134 that the goods which had landed at Dighi Jetty were loaded in a truck and the same were intercepted by the police officers and after negotiations, they were let off.

Deposition of Vyankatesh Hirba Rane (PW 588)

1212. PW 588 was a police officer who deposed about the recovery of wooden boxes from Shabbir's village. His deposition corroborates with the confession of the appellant that about 3-4 wooden boxes and a few canvas bags containing arms and ammunition that had landed at Dighi Jetty on 9-1-1993 had remained at the house of Shabbir Kadri (AA). PW 588, at the instance of PW 378, recovered the said three wooden boxes and six military-coloured bags from a creek vide seizure panchnama dated 8-4-1993 (Ext. 503). 3 wooden boxes containing 44 magazines of AK-56 rifles and 6 canvas bags, each containing 2 tin boxes, each box containing 750 rounds were recovered. Thus, there were total 12 tin boxes containing 9000 rounds of AK-56 rifles.

Deposition of Janu Kamlaya Vetkholi (PW 378)

1213. PW 378 was a fisherman and catches fishes in Murud Creek. He corroborates with the deposition of PW 588 in material aspect.

Deposition of Ashok K. Chandgude (PW 670)

1214. PW 670 sent the items recovered above to FSL for opinion vide panchnama, Ext. 2471 dated 23-5-1993. Ext. 2442 is the opinion received from FSL.

Deposition of Satyakant Rohinikant Saikia (PW 481)

1215. PW 481 recorded the confession of the appellant which clearly establishes that the same was recorded in compliance with Section 15 TADA and the Rules framed thereunder and as such is admissible as evidence against him. His deposition shows that PW 481 asked the appellant whether he had been beaten up or induced into making the confession to which the appellant replied in the negative. Only when PW 481 was convinced that the appellant wanted to make a voluntary confession, the confession was actually recorded. A further time of 24 hours was also given to the appellant to rethink his decision of making a confession.

Deposition of Saujibhai Ghemarbhai Chaudhari (PW 678)

1216. Deposition of PW 678 dated 10-7-2000 establishes that the appellant was arrested by him from his village in District Bijnor, Uttar Pradesh in connection with the Bombay Bomb Blast Case and that the appellant volunteered to make a confession on 18-8-1995 while being interrogated. Thereafter, PW 678 sent a requisition letter to PW 481 for recording of the confession of the appellant.

1217. From the materials, it is clear that:

(i) He was a key member of Mohd. Dossa gang.

(ii) He participated in the landing of silver ingots and arms and ammunition at Dighi Jetty on 9-1-1993.

(iii) He participated in the transportation and safe keeping of the arms and ammunition that landed at Dighi and carried these weapons to Shabbir's village.

(iv) Even when he was absconding after the bomb blasts, he continued to smuggle goods and was involved in the illegal activities on the instructions of Mohd. Dossa.

(v) He even committed offence while he was declared proclaimed offender.

(vi) On his arrest, one AK-56 rifle, two magazines and 88 cartridges were recovered. The said arms and ammunition were out of the goods that landed at Dighi Jetty on 9-1-1993.

1218. The confession of A-134 along with the confessions of A-133, A-30, A-81 and A-136 coupled with the deposition of prosecution witnesses establish the appellant's participation in the criminal conspiracy and, more particularly, his participation in the landing of arms and ammunition at Dighi Jetty. It is to be noted that the appellant was fully aware that the boxes which landed at Dighi Jetty on 9-1-1993 contained arms and ammunition and he helped in the transportation of the same after landing of such weapons. Some of these weapons were subsequently recovered by PW 588.

Sentence

1219. The prosecution has brought to our notice that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 20-10-2006 (Ext. 2995) in which he prayed that the following factors, amongst others, may be considered while determining his sentence:

(i) He has been in custody since his arrest in April 1995;

(ii) His children and wife are dependent on him;

(iii) He lost his parents while in custody and wishes to join his wife and daughters; and

(iv) He has assured to lead the life of a new law-abiding citizen.

1220. A perusal of the impugned order shows that the learned Designated Court duly considered all these factors.

1221. In the light of the above discussion, we confirm the conviction and sentence awarded by the Designated Court to the appellant and the appeal is liable to be dismissed.

Criminal Appeal No. 401 of 2008

Mohd. Kasam Lajpuria (A-136) v. State of Maharashtra

Criminal Appeal No. 1023 of 2012

State of Maharashtra v. Mohd. Kasam Lajpuria (A-136)

1222. Mr Chander Uday Singh, learned Senior Counsel appeared for the appellant (A-136) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent (CBI).

Criminal Appeal No. 401 of 2008

1223. The instant appeal is directed against the final judgment and order of conviction and sentence dated 17-10-2006 and 23-5-2007 respectively, whereby the appellant (A-136) has been convicted and sentenced to rigorous imprisonment for 10 (ten) years by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

1224. A common charge of conspiracy was framed against all the co-conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1225. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts:

At head secondly, the appellant, in pursuance of the aforesaid criminal conspiracy and during the period January 1993 to March 1993, abetted and knowingly and intentionally facilitated acts preparatory to terrorist acts:

(a) By attending the meeting at Hotel Persian Darbar, Panvel on 6-1-1993 along with co-accused in which co-accused Customs Officers allowed Mohd. Dossa (AA) and his associates to carry on smuggling activities in their jurisdiction;

(b) He participated along with landing agent Uttam Poddar (A-30) participated in landing of arms, ammunition and hand grenades at Dighi Jetty on 9-1-1993 and also participated in the transportation of the said arms, ammunition and hand grenades to the residence of Shabbir Kadri (AA) at Agarwada for its concealment; and

(c) He participated in transportation of the said contraband from Dighi Jetty when it was intercepted at Gondghar Phata by police officers of Shrivardhan Police Station and on mediation the said truck was allowed to proceed for illegal gratification, thereby, he committed an offence under Section 3(3) TADA.

At head thirdly, the appellant with intent to aid the terrorists, contravened the provisions of the Arms Act, 1959, the Arms Rules, 1962, the Explosives Act, 1884 and the Explosive Substances Act, 1908 and participated in the landing of arms and ammunition, their transportation and thereby committed an offence punishable under Section 6 TADA.

Conviction and sentence

1226. The charges mentioned above were proved against the appellant (A-136) except the charge mentioned at head firstly. The Designated Judge found the appellant guilty on the aforesaid charges which are enumerated herein below:

1226.1 The appellant has been convicted for the offence of conspiracy under Section 3(3) TADA and sentenced to RI for 10 years along with a fine of Rs 50,000, in default, to further undergo RI for 1 year. (charge secondly)

1226.2 The appellant has also been convicted under Section 6 TADA and has been sentenced to RI for 10 years along with a fine of Rs 1,00,000, in default, to further undergo RI for 3 years. (charge thirdly)

Evidence

1227. The evidence against the appellant (A-136) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimony of prosecution witnesses; and

(iv) documentary evidence.

Confessional statement of Mohd. Kasam Lajpuria alias Mohd. Kalia alias Mechanic Chacha (A-136)

1228. The involvement of A-136 in the conspiracy is evident from his own confession under Section 15 TADA recorded on 9-11-1999 (1540 hrs) and 10-11-1999 (0900 hrs) by Shri O.P Chhatwal (PW 684), the then SP, CBI-STF, New Delhi. We have gone through his entire confession. His confession reveals as under:

(i) The appellant was a motor mechanic and was previously jailed under Cofeposa for 1 year. He met Mohd. Dossa (AA) in jail and he started working with him after release.

(ii) He was called Mechanic Chacha.

(iii) Uttam Poddar (A-30) was a landing agent of Mohd. Dossa in Raigad area.

(iv) 3 trucks, one numbered as 1051, (which was identified by A-134 as the truck used for carrying weapons unloaded at Dighi Jetty), 2 tempos, one Maruti car, one Maruti van and one Maruti gypsy were used for smuggling. False cavities were also made in trucks and tempos to hide the smuggled goods. These vehicles were brought in false names.

(v) 6-8 months prior to 1993 bomb blasts, a meeting was held between Mohd. Dossa (AA) and Custom Collector Mr Thapa (A-112) at President Hotel. In the said meeting, the appellant was also present along with other co-accused persons. A-112 told Mohd. Dossa that he can carry out smuggling activities but he must also give some cases of seized goods of smuggling.

(vi) Mohd. Dossa told the appellant and others that his brother Mustafa Dossa will send some arms from Dubai which should be collected at the port.

(vii) On 6-1-1993, a meeting took place between Mohd. Dossa and Customs officials at Hotel Persian Darbar, Panvel. The appellant also travelled to Panvel to attend the said meeting. In the meeting, it was decided to pay Rs 9-10 lakhs to Customs officials for single landing.

(viii) A landing took place on 9-1-1993.

(ix) The appellant along with Afsal Gadbad left for Mhasla at 3 p.m on 9-1-1993.

(x) Thereafter, they met A-30 and all of them then reached Dighi Jetty at 9 o'clock.

(xi) The appellant and others received signal from the ship/launch which came from Dubai on a walkie-talkie. The appellant asked the launch to reach Dighi Jetty.

(xii) About 265 silver bars were loaded in the trucks from the ship. When silver was being uploaded, the captain of the ship asked to unload other things too viz. (i) 15-20 wooden boxes, and (ii) 15-20 tin boxes.

(xiii) A-134 spoke to Mustafa Dossa over telephone about the contents of the boxes and, thereafter, told A-136 to unload the “samaan” in the truck. “Samaan” is the lingo for arms in gangster's language.

(xiv) He was travelling in the car and the truck and the tempo loaded with arms were following the car. After taking note of the fact that the truck and the tempo were not following their car, they came back and saw that the truck and the tempo had been intercepted by a police party.

(xv) An officer, by name “Patil” (A-116), stopped the two vehicles and said that he was not paid anything in spite of landings. Meanwhile, A-30 along with A-82 came there and spoke to Patil (A-116) and it was decided that Rs 8 lakhs would be given to the police.

(xvi) Patil (A-116) kept 5 silver bars as security for a bribe of Rs 8 lakhs to let the trucks pass through.

(xvii) The truck with arms moved towards village Agarwada where Shabbir Qadri (AA) resided. It is further seen that from Agarwada village, arms were loaded into cavities of another truck and sent to Gujarat. Some arms which could not be fitted into the cavities of trucks left with Shabbir Qadri at his residence.

(xix) He got scared that the arms deposited by Ahmed Aulia in his village might be caught leading perhaps to his arrest also.

(xx) He moved to Nepal after 2-3 months of the blasts to evade arrest. In Nepal, he met Mohd. Dossa (AA), Salim Kutta (A-134), and Feroz (AA), amongst others. He was aware that the police was in search of him and that the court has also issued a warrant for his arrest.

(xxi) Some of the rifles unloaded at Dighi Jetty on 9-1-1993 were with Ahmed Aulia who was not returning them. He told his wife about this and she passed this information to Crime Branch.

(xxii) The arms which landed at Dighi Jetty were brought from Pakistan near Karachi. One boat went to Porbandar and some arms landed there also.

1229. As against this, counsel for the appellant submitted that the appellant came to be arrested on 4-11-1999 i.e after the evidence of most of the witnesses was over. Shri O.P Chhatwal (PW 684), the then SP, CBI-STF, New Delhi, the officer who recorded his confession, was present at the time of his arrest. He further pointed out that in spite of his advocate's information that A-136 does not intend to give a confession, a confession was obtained from him on 9-11-1999. In the light of the above objections, we have carefully verified his entire statement, procedure followed, voluntariness, etc., of the confession and we are satisfied that there is no substance in the above objections. In view of the objection that the Supervising Officer (PW 684 herein) cannot be permitted to record confession of an accused, this Court has rejected this objection vide S.N Dube v. N.B Bhoir, Lal Singh v. State of Gujarat and Mohd. Amin v. CBI.

1230. Upon perusal of the above confession of the appellant, the following facts emerge:

(i) The appellant was a close confidant of Mohd. Dossa gang;

(ii) He participated in the landing at Dighi Jetty and subsequent transportation of arms and ammunition;

(iii) He participated in the meetings and negotiations with Customs and police officers in January 1993 to seek permission and to fix the bribe amount for each landing.

(iv) He was a key aide of Mohd. Dossa, who was one of the main co-conspirators of the Bombay Bomb Blast Case.

1231. It has been contended on behalf of the appellant (A-136) that his confession should not be relied upon as he has retracted his confession and his signatures were obtained under coercion. It is relevant to point out that the appellant (A-136) was produced before the CMM, Bombay on 10-11-1999 (one day after recording his confession) he did not make any such complaint to the CMM and the said fact is clear from the order dated 10-11-1999 which records that the contents of the confession of the appellant (A-136) were read out to him and he admitted all the facts. Further, the confession of the appellant (A-136) is corroborated in material respects with the confessions of A-134, A-30 and A-82 insofar as Dighi Jetty landing and interception of trucks by police is concerned and was, thus, truthful and voluntary when made.

Confessional statements of co-accused

1232. The prosecution pointed out that the involvement of the appellant in committing overt acts, as stated above, is further strengthened in the confessional statements of other co-accused persons which are summarised as under:

Confessional statement of Mohd. Salim Mira Moiddin Shaikh alias Salim Kutta (A-134)

1233. The confessional statement of A-134 under Section 15 TADA has been recorded on 18-8-1995 (1600 hrs) and 19-8-1995 (1600 hrs) by Shri Satyakant Rohinikant Saikia (PW 481), the then DIG-CID Crime and Railways, Gujarat State, Ahmedabad. A brief summary of the confession of A-134 with respect to the appellant is summarised herein under:

(i) A-134 was also the member of Mustafa Majnu gang and later became bodyguard of Mohd. Dossa.

(ii) A-136, A-134 and Feroz Abdul Rashid were joint partners of 5% share in smuggling activities. A-136 was an active member of Mohd. Dossa gang and was involved in smuggling activities.

(iii) Tiger Memon used to work with Mohd. Dossa.

(iv) A-134 along with A-136 and other co-accused attended a meeting with Customs officers at Hotel Persian Darbar in the first week of January, 1993, wherein rate for each landing was fixed at Rs 7 to 8 lakhs per landing. The meeting went on for 3/4 hours.

(v) In the presence of A-136, Mohd. Dossa informed after talking with Mustafa Majnu over phone that a large quantity of arms and ammunition had left Dubai. He directed A-134 and Feroz (AA) to go to Dighi Jetty in Mhasla and inform the Custom Officers about the said landing and that the appellant would be making other arrangements in this regard.

(vi) In the night of 9-1-1993, A-136 along with other accused persons had gathered at Dighi Jetty for the landing.

(vii) In the night, at about 11 p.m, A-136 was busy on wireless and was trying to establish contact with the launch coming from Dubai. He left in a small boat and after some time returned with the launch.

(viii) After loading all the boxes, bags and silver ingots they all left Dighi Jetty and on their way, the vehicles were intercepted by the police. The appellant, A-134, A-30, A-82 negotiated with the police and it was decided to release the trucks after keeping silver ingots as security in lieu of a bribe of Rs 10 lakhs.

(ix) He saw the boxes contained AK-56 rifles, empty magazines, hand grenades with pins in separate boxes, and ammunition for AK-56 rifles in tin boxes.

(x) A-136 asked Abdul Qayyum to proceed to Gujarat and to contact Mustafa Dossa alias Mustafa Majnu (brother of Mohd. Dossa).

1234. We are satisfied that the confession of A-134 fully corroborates in material aspects with the confession of the appellant. It is also clear that the appellant was a close confidant of Dossa brothers and he was given the important task to ensure safe landing and its transportation to their respective destinations and the appellant was also present at the time when Mohd. Dossa told A-134 and other co-accused that a large quantity of arms and ammunition had left Dubai and directed A-134 and Feroz (AA) to go to Dighi Jetty in Mhasla and inform the Customs Officers about the landing and that the appellant would be making other arrangements in this regard.

Confessional statement of Uttam Shantaram Poddar (A-30)

1235. The confessional statement of A-30 under Section 15 TADA has been recorded on 12-7-1993 (1720 hrs) and 15-7-1993 (1700 hrs) by Meera Borvankar, the then Superintendent of Police, CID, Pune. A summary of the confession of A-30 implicating the appellant is as under:

(i) He was a landing agent and worked for Mohd. Dossa. He described A-136 as the “main person” in the gang and that A-136 had asked A-30 to work for Mohd. Dossa.

(ii) A-136 came in his white Maruti car to Dighi Jetty on 9-1-1993.

(iii) A-136 was interacting with the ship carrying arms through a walkie-talkie.

(iv) After landing at Dighi Jetty on 9-1-1993, the vehicles were stopped at Gondghar Phata by the police where V.K Patil (A-116) was present. A-136 made an offer of Rs 10 lakhs to A-116. 175 silver bricks were there in local truck and 100 bricks in another truck. The police asked what was in the boxes to which A-136 replied that the boxes contained watches. Since there was no cash, A-136 gave silver bricks in lieu of cash to police and left with the trucks.

Upon perusal of the confession of A-30 it is clear that the appellant was a close confidant of Mohd. Dossa gang and he negotiated the release of trucks with the police and further misled them about the contents of the same.

Confessional statement of Jaywant Keshav Gurav (A-82)

1236. The confessional statement of Jaywant Keshav Gurav (A-82) under Section 15 TADA has been recorded on 4-5-1993 and 6-5-1993 (1000 hrs) by Shri Tikaram Shrawan Bhal (PW 191), the then Superintendent of Police, Alibaug, Raigad. A-82 does not specifically name the appellant but it corroborates the fact that police officers of Shrivardhan PS had intercepted the truck of Mohd. Dossa gang and his 4/5 men negotiated with the police.

Confessional statement of Janardhan Pandurang Gambas (A-81)

1237. The confessional statement of A-81 under Section 15 TADA has been recorded on 20-5-1993 (1730 hrs) and 21-5-1993 (1715 hrs) by Shri T.S Bhai, the then Superintendent of Police, Raigad-Alibaug, Maharashtra. The prosecution submitted that the confession of A-81, a fisherman, who participated in the landing at Dighi Jetty, corroborates with the fact that the appellant was talking on wireless after which a trawler came within 10 minutes towards Dighi Jetty. They unloaded silver bricks and 30 bundles wrapped in gunny cloth around the box and 30 military-coloured bags.

1238. It is contended by the counsel for the appellant that the confessional statements of A-30, A-81 and A-82 cannot be read in evidence against A-136 as they were recorded prior to amendment of TADA i.e before 22-5-1995. Since we have already dealt with the similar objection in the earlier part of our order, there is no need to traverse the same once again.

Deposition of prosecution witnesses

1239. The prosecution has relied upon the depositions of several prosecution witnesses to establish the involvement of the appellant in the criminal conspiracy. The relevant facts from the deposition of witnesses that incriminate the appellant have been enumerated below:

Deposition of Dinesh Gopal Nakti (PW 95)

1240. PW 95's deposition reveals that he worked as a labourer with Uttam Poddar (A-30). He deposed further that around 12 persons gathered on 9-1-1993 on the instructions of Uttam Poddar to load several bags at Dighi Jetty in a tempo. Deposition of PW 95, therefore, corroborates with the confession of A-136, that Uttam Poddar arranged for labourers for loading and unloading of goods at Dighi Jetty on 9-1-1993 and that landing took place on the same day.

Deposition of Krishnakant Nathuram Birade (PW 96)

1241. PW 96 was another labourer present at Dighi Jetty during the landing. His deposition also corroborates with the confession of A-134 and PW 95 in that Uttam Poddar (A-30) arranged for labourers for loading and unloading of goods at Dighi Jetty on 9-1-1993.

Deposition of Dilip Bhiku Pansare (PW 97)

1242. PW 97 reveals as under:

(i) He was working as a mechanic in the State Transport Corporation.

(ii) He drove one of the two trucks bearing No. 5533 in which silver, as told to him by Shabbir Kadri, was loaded on 9-1-1993 at Dighi Jetty.

(iii) He stated that at Gondghar Phata he was stopped by a police jeep.

(iv) He stated that policemen boarded Truck No. 5533 and started shouting that there was silver in the truck.

(v) He stated that, meanwhile, another truck also came following his truck and the policemen also boarded the truck and the persons who were travelling in the said truck said “Saab andar math jao, andhar kaanch ka saman hai” the person from the other truck started shouting chacha, M.C Chacha.

(vi) He stated that thereafter Shabbir Kadri came and started asking Patil Sahib (A-116) “what had happened”.

(vii) He stated that he took A-116 near a white car which was stationed behind the said truck.

(viii) He stated that meanwhile A-30 and A-82 also came there and the discussion took place for about half-an-hour.

(ix) He stated that, thereafter, 5 silver bricks were taken out of Truck No. 5533 and kept in the police jeep.

(x) He stated that when he left the said spot, the other truck along with police jeep was still there.

(xi) He stated that the person who shouted to take out the keys of his truck was at the rear side portion of the truck.

(xii) He stated that the police checked his truck for 15 minutes and took 10 minutes for checking the other truck.

(xiii) He stated that the appellant thereafter came to village Hanghar along with other co-accused and unloaded truck bearing No. 5533.

The above deposition of PW 97 corroborates with the confession of the appellant (A-136) that goods which had landed at Dighi Jetty were loaded in a truck and the same were intercepted by the police officers and after negotiations, were let off.

1243. Upon perusal of the entire evidence as placed by the prosecution the following facts emerge:

(i) The appellant was a close confidant of Mohd. Dossa gang and was close to the Dossa brothers and did everything to win over their confidence;

(ii) The appellant was aware of the contents even prior to the landing of the goods at Dighi Jetty which fact is clearly discernible from his own confession and confession of A-134;

(iii) The appellant was given the important task of safe landing and its transportation to respective destinations;

(iv) The appellant was coordinating with the launch which fact is duly corroborated even by the depositions;

(v) The appellant negotiated with the police officer for release of the goods.

Thus, in view of the above, we reach the inescapable conclusion that the appellant has rightly been convicted and sentenced by the Designated Court. The appeal is liable to be dismissed.

Criminal Appeal No. 1023 of 2012

Appeal by the State of Maharashtra

1244. As regards the appeal filed by the State for conviction under charge mentioned at head firstly, it is to be noted that the Designated Court has held that A-136 acquired knowledge of arms and ammunition at Dighi Jetty when the goods were being unloaded and has not played any further role except the transportation of the same from Dighi Jetty to Gondghar Phata where they were intercepted by the police party. After careful examination of all the materials placed, we are of the view that in the absence of any positive evidence, A-136 cannot be convicted under the charge mentioned at head firstly i.e conspiracy and the Designated Court has rightly acquitted him from the said charge. In the light of the above discussion, the appeal of the State is liable to be dismissed.

1245. Considering the evidence brought on record, the Designated Court held (Part 11):

“43-A) The aforesaid material in confession of A-136 not only reveals his own involvement in Dighi Jetty landing episode and himself had become aware at Dighi Jetty that the materials brought by sea were also containing arms and ammunition but also discloses involvement of other co-accused in commission of an act as depicted by the same.

(43-B) The corroborative material to the matters found in confession of A-136 regarding his such deep involvement in Dighi Jetty landing episode is also found in confession of co-accused A-30, 81 and 134.

(43-C) Thus carefully considering material contained in confession of A-136 and that of the aforesaid co-accused definitely leads to the conclusion of A-136 who was a close associate of Mohd. Dossa and Mustafa Dossa the main person responsible for Dighi Jetty landing, having committed the offences for which he was charged with at head secondly and thirdly.

(133) Now considering the acts committed by A-136 and more particularly his continuing with the convoy containing arms, his participation in settlement with the police for allowing the convoy to proceed further in spite of his later on knowledge that the same was containing weapons in light of the aforesaid observation leads to no other conclusion but himself having continued to commit the landing operation and further overt acts now for achieving the object of conspiracy. Similarly taking into account that the contraband goods were to contain arms and ammunition i.e the smuggled goods which could not have been put for any lawful use fortifies the conclusion of A-136 having abetted the acts which were committed by the conspirators and/or rendered the assistance to them by contravening the provisions of law. Such a conclusion legitimately flows from the said material even accepting that A-136 had earlier no knowledge that the goods which had arrived at Dighi Jetty were containing the arms.

(271) Now considering the liability of A-136 as revealed from the earlier discussion but without once again repeating the dilation made earlier it can be said that the same having revealed that A-136 had become aware about the nature of goods after he was told regarding the same and the direction of accused Mustafa Dossa by A-134. As dilated earlier, it is clear that though A-136 had continued with the said operation i.e the operation of smuggling for which he had agreed earlier and in the process having committed the offence under Section 3(3) TADA still he cannot be said to be guilty for the offence of conspiracy to which A-134 was said to be party. Needless to add that considering the acts committed by A-136, his liability remained confined to having committed the offence under Section 3(3) and Section 6 TADA”.

Sentence

1246. It is contended by the counsel for the appellant that A-136 was arrested on 4-11-1999 and has already undergone the sentence for about more than 8½ (eight-and-a-half) years of actual imprisonment. The Designated Court also heard the appellant on the quantum of sentence. Taking note of all the materials and proved charges mentioned at heads secondly and thirdly, we are satisfied that the sentence awarded by the Designated Court cannot be said to be excessive. On the other hand, we are of the view that the sentence awarded by the Designated Court to the appellant is justifiable and acceptable, hence, the appeal is liable to be dismissed.

Criminal Appeals Nos. 976-77 of 2008

Nasir Abdul Kader Kewal (A-64) v. State of Maharashtra

1247. Mr Priyadarshi Manish, learned counsel appeared for the appellant (A-64) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent.

1248. The present appeals are directed against the final judgment and order of conviction and sentence dated 5-10-2006 and 31-5-2007 respectively, whereby the appellant (A-64) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

1249. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-64). The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1250. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts:

At head secondly, he intentionally facilitated commission of terrorist acts and acts preparatory to terrorist acts by:

(a) Going to Pakistan along with his co-conspirators via Dubai and acquiring weapons' training in handling of arms and ammunition and explosives with the object of committing terrorist acts;

(b) Participating in the landing and transportation of arms, ammunition and explosives smuggled into India by Tiger Memon and his associates at Shekhadi;

(c) Attending conspiratorial meetings at the residence of Nazir Ahmed Anwar Shaikh alias Babloo and Ms Mobina alias Baya Moosa Bhiwandiwala;

(d) Participating in filling RDX in vehicles on the intervening night of 11-3-1993/12-3-1993, at Al-Hussaini Building, with the object of causing explosions in Bombay.

Conviction and sentence

1251. The charges mentioned above were proved against the appellant (A-64). The appellant has been convicted and sentenced for the abovesaid charges as under:

1251.1 The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge firstly)

1251.2 The appellant has also been convicted under Section 3(3) TADA for commission of the offences at head secondly and sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge secondly)

Evidence

1252. The evidence against the appellant (A-64) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimony of prosecution witnesses; and

(iv) documentary evidence.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

1253. The involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 TADA on 22-1-1995 (915 hrs) and 24-1-1995 (945 hrs) by Shri H.C Singh (PW 474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The said confessional statement is summarised hereinbelow:

(i) His father-in-law used to run the business of “matka” in Bandra. He joined his business in 1984, after his marriage. After one year, he started his own business of “matka” at Mahim along with his father-in-law during which period he got introduced and acquainted with Javed Chikna (AA), Yeda Yakub, Anwar Theba and others. He also described Javed Chikna as the “dada” of that area, Mahim.

(ii) The “matka” business of his father-in-law closed down. Thereafter, A-64 worked as a driver with one Alamgir Muttonwala of Mahim.

(iii) During December 1992 riots, Muttonwala's car was burnt down and the appellant was rendered jobless. So, he asked Javed Chikna for a job.

(iv) He again met Javed Chikna for the purpose of job in the last week of January, 1993, at which time, Javed Chikna was waiting for Tiger Memon near Mahim Dargah along with Anwar Theba (AA), Abdul Gani Ismail Turk (A-11), Shafi Zariwala (AA) and Rafique Madi (A-46).

(v) At that time, he got introduced to Tiger Memon. He told Tiger that he was unemployed on which Tiger asked the appellant for his passport which he handed over to Javed Chikna.

(vi) He knew that Tiger Memon and his family members were residing at Al-Hussaini Building in Mahim since 1990-1991.

(vii) Javed Chikna, Anwar Theba, Abdul Gani Ismail Turk, Shafi Zariwala and Rafique Madi used to visit Tiger's place and accompanied him somewhere.

(viii) The appellant knew that Tiger Memon was a smuggler and a “big don”.

(ix) Javed Chikna told him to come to Soda Factory at Mahim at 8.30 p.m as he had to go along with the others for collection of Tiger Memon's consignment.

(x) Accordingly, the appellant went to Soda Factory and from there he went to Hotel Persian Darbar, Panvel along with Shafi Jariwala and Farooq Pawale (A-16) in a blue-coloured Commander jeep.

(xi) Tiger Memon had also arrived there after sometime along with Abdul Gani.

(xii) Thereafter, they all went to Hotel Big Splash, Alibaug where Javed Chikna and others were already present. They all spent the night at Hotel Big Splash. Next day, Dawood Taklya (A-14) and Dadabhai (A-17) came to meet Tiger Memon and after talking to them, Tiger told everyone that a consignment would reach the seashore at night.

(xiii) Tiger Memon also instructed them to surround police or Customs Officers in case they arrived. On this, he informed “… We were all ready to follow the instructions of Tiger Memon….”

(xiv) The appellant went to Shekhadi along with the others where Tiger gave him and others a revolver and told them to remain close to the shore.

(xv) The goods/consignment (60-70 large packets) arrived by sea were brought to the coast by Tiger and others.

(xvi) The above packets were unloaded by some villagers deployed by Dawood Taklya and then loaded into a truck and transported to Waghani Tower.

(xvii) On reaching Waghani Tower, the aforesaid packets were opened. It contained arms, explosives and cartridges. All the arms were kept in the secret cavities made in the jeeps.

(xviii) Thereafter, Tiger Memon directed the appellant and A-12 to drive one of the above jeeps containing arms filled in cavities therein to Bombay and to park the same outside Shanti Nursing Home leaving the keys inside the vehicle.

(xix) Accordingly, the appellant and A-12 drove to Bombay and took a stopover at Khandala. The appellant got scared after seeing the arms and therefore he sneaked out of the hotel room at Khandala when A-12 was asleep and went to Bombay by a State transport bus.

(xx) The appellant was paid Rs 2000 by Javed Chikna for the above work at Shekhadi.

(xxi) After few days, he went along with Yeda Yakub, Riyaz Khatri, Karimulla (all absconding), deceased Akbar, Ehtesham (A-58) and Munna (A-24) to Shekhadi again and participated in the landing of arms and ammunition and explosives.

(xxii) It had come to his knowledge that the aforesaid arms were going to be used to take revenge against Hindus for the demolition of Babri Masjid and that the wires brought by Shafi in his jeep were going to be used to cause blasts in Bombay.

(xxiii) On 17-2-1993, he went to Dubai via Emirates flight. From there, he along with other co-accused went to Pakistan. At Islamabad, their passports and tickets were not checked.

(xxiv) He was given a fake name, “Abdullah” in Pakistan. A-12 told him that they were to be given training in use of arms for taking revenge against Hindus.

(xxv) Thereafter, he underwent weapons' training. The training was given by the officers of Pakistan Army.

(xxvi) After completion of the training, he along with others went back to Dubai. There were arrangements to board the flight for Dubai without any checking at Islamabad Airport. After reaching Dubai, their passports were checked but nobody asked them as to where they had gone; Tiger gave 150 dirhams to each one of them and administered an oath of maintaining secrecy regarding the aforesaid training and for taking revenge against Hindus for the demolition of Babri Masjid by swearing on the Quran.

(xxvii) Before leaving from Dubai to Bombay, they were told by Tiger Memon that their passports did not bear any stamp regarding their visit to Pakistan and for the same reason directed them to go through Counter No. 3 during their arrival at Bombay Airport in order to avoid any problem.

(xxviii) Then he returned to Bombay and after 2-3 days, he attended/participated in a meeting at the residence of A-96 on 6-3-1993 where everyone who received training in Pakistan was present.

(xxix) At the aforesaid meeting, at the behest of Tiger Memon, the appellant formed a group with A-100 and they were assigned the task of reconnaissance of Sahar Airport for throwing of hand grenades on aircrafts.

(xxx) Accordingly, on the next day i.e on 7-3-1993, he along with PW 2 and A-100 conducted the survey of Sahar Airport and realised the difficulty in execution of the same.

(xxxi) In the meeting at Babloo's place on 8-3-1993, A-64 and A-100 expressed the above difficulty to Tiger Memon, but Tiger did not agree to it and told them that the task has to be executed by any means.

(xxxii) He also participated in the second meeting at the residence of A-96 on 10-3-1993 where Tiger Memon directed everyone present therein to be ready for their respective works. All the people present there replied that they were all ready.

(xxxiii) He was present at Al-Hussaini Building on the night of 11-3-1993 and he saw RDX being loaded in vehicles. At the instance of Javed Chikna, he also brought 15-16 sacks of iron scrapings kept outside the building compound and kept it between the RDX loaded in the vehicles.

(xxxiv) The appellant stated that the material (RDX) used at Al-Hussaini was similar to the material he saw at Shekhadi and Waghani Tower and it appeared to him that this material was being loaded in the vehicles for the purpose of causing bomb blasts.

(xxxv) The appellant was present at Al-Hussaini Building till 3 a.m and Tiger Memon was also present there.

(xxxvi) The appellant and Parvez decided that in future they would not participate in any such activities.

(xxxvii) After the blast, he went to several places viz. Ahmedabad, Ajmer, Karnataka and then to Hyderabad fearing arrest by the police.

1254. On perusal of the aforesaid confessional statement of the appellant (A-64), the following facts emerge:

(i) The above confession of the appellant brings out and establishes his role/involvement in the conspiracy by way of his close association with Javed Chikna (AA), one of the key conspirators;

(ii) The appellant participated in both the landings of arms and ammunition and explosives at Shekhadi with complete knowledge of the articles smuggled and their purpose;

(iii) The appellant participated in the transportation of arms to Bombay;

(iv) The appellant participated in the weapons' training at Pakistan;

(v) The appellant participated in the conspiratorial meetings at Mobina's as well as Babloo's residence where plans were chalked out for committing terrorist acts;

(vi) The appellant was present at the residence of Tiger Memon at Al-Hussaini Building on the intervening night of 11-3-1993/12-3-1993 and participated in the filling of RDX for the purpose of causing explosions in various parts of Bombay;

(vii) The appellant took oath that he along with others will do “Jehad” and will take revenge against Hindus and he, on being asked by Tiger to be ready, replied that he was ready.

1255. It has been contended on behalf of the appellant that his confession was recorded at midnight. The said contention is not supported by any record, in fact, the confession was recorded at 9.45 a.m onwards. The scrutiny of his confession and the procedure followed shows that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards prescribed under Section 15 TADA and the Rules framed thereunder. The said fact has also been proved by Shri H.C Singh (PW 474).

Confessional statements of co-accused

1256. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-64) are summarised hereinbelow:

Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

1257. The confessional statement of A-12 under Section 15 TADA has been recorded on 18-4-1993 (1400 hrs) and 21-4-1993 (0650 hrs) by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. The said confession reveals as under:

(i) A-12 participated in the landing of arms at Shekhadi and one jeep filled with arms was entrusted to him and the appellant.

(ii) The appellant left for Bombay without informing him.

(iii) After the second landing at Shekhadi, the appellant came to stay over at Hotel Persian Darbar, Panvel where A-12 was also staying.

Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)

1258. The confessional statement of A-13 under Section 15 TADA was recorded on 16-5-1993 (1030 hrs) and 18-5-1993 (1715 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant attended the conspiratorial meeting on 10-3-1993 at Mobina's residence in Bandra.

Confessional statement of Imtiaz Yunus Miya Ghavate (A-15)

1259. The confessional statement of A-15 under Section 15 TADA was recorded on 7-5-1993 (1230 hrs) and 9-5-1993 (1330 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant participated in the landing at Shekhadi.

Confessional statement of Mohd. Farooq Mohammed Yusuf Pawale (A-16)

1260. The confessional statement of A-16 under Section 15 TADA was recorded on 20-5-1993 (1630 hrs) and 22-5-1993 (1645 hrs) by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The said confession reveals that:

(i) The appellant, Usman and Parvez Qureshi were friends of Javed Chikna and were “brutal” persons;

(ii) At the instance of Javed Chikna, A-16 accompanied him to Shekhadi in a blue-coloured jeep along with the appellant and others.

Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)

1261. The confessional statement of A-29 under Section 15 TADA was recorded on 18-5-1993 (1830 hrs) and 21-5-1993 (1445 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals as under:

(i) The appellant accompanied Javed Chikna, A-29 and others in a blue-coloured Commander jeep at the time of the first landing of arms at Shekhadi.

(ii) The appellant along with A-29 and others went in a jeep to Waghani Tower.

(iii) A-29 met the appellant in Dubai.

(iv) The appellant was present at Al-Hussaini Building (house of Tiger) on 11-3-1993.

Confessional statement of Zakir Hussain Noor Mohammed Shaikh (A-32)

1262. The confessional statement of A-32 under Section 15 TADA was recorded on 16-5-1993 (1125 hrs) and 19-5-1993 (1730 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant underwent training at Pakistan where he was given a fake name “Abdullah”.

Confessional statement of Abdul Akhtar Khan (A-36)

1263. The confessional statement of A-36 under Section 15 TADA was recorded on 19-5-1993 (1740 hrs) and 21-5-1993 (1820 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession corroborates the fact that the appellant travelled to Pakistan via Dubai where he underwent weapons' training.

Confessional statement of Feroz alias Akram Amani Malik (A-39)

1264. The confessional statement of A-39 under Section 15 TADA was recorded on 19-4-1993 (2230 hrs) and 23-4-1993 (2050 hrs) by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. The said confession reveals as under:

(i) On 7-3-1993, the appellant took A-39 to Babloo's house where Tiger Memon and others also arrived after sometime and a meeting was held.

(ii) On 10-3-1993, the appellant had come along with Javed Chikna and others to Bandra. Tiger Memon also came there and informed them that they were required to do the work and for that they would be paid Rs 5000 each.

Confessional statement of Mohd. Rafiqu Musa Biyariwala alias Rafiq Madi (A-46)

1265. The confessional statement of A-46 under Section 15 TADA was recorded on 21-4-1993 (1900 hrs) and 23-4-1993 (2125 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant participated in the landing at Shekhadi.

Confessional statement of Nasim Ashraf Sherali Barmare (A-49)

1266. The confessional statement of A-49 under Section 15 TADA was recorded on 16-5-1993 (930 hrs) and 18-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant participated in the weapons' training at Pakistan.

Confessional statement of Shaikh Ali Shaikh Umar (A-57)

1267. The confessional statement of A-57 under Section 15 TADA was recorded on 19-4-1993 (1200 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals as under:

(i) The appellant was a friend of Javed Chikna.

(ii) On 8-2-1993/9-2-1993, A-57 went to meet Javed Chikna at Soda Factory where he told him that they all have to go somewhere. At that time, the appellant was also present there.

(iii) Thereafter, all of them went to a place via Goa Highway using a car.

(iv) On 10-2-1993, Shafi took A-57, the appellant and others to Hotel Persian Darbar by a jeep where they all had lunch.

(v) A-57 attended a meeting at a flat in Bandra on 10-3-1993 where the appellant and many others were also present. In the said meeting, Tiger Memon gave a provoking lecture on taking revenge owing to Muslims being killed in the riots; at the instance of Tiger Memon, groups were formed to execute the plans to cause blasts.

(vi) On the intervening night of 11-3-1993/12-3-1993, Javed Chikna asked the appellant to load black soap in the garage. The appellant and A-57 filled iron pieces in the Commander jeep.

Confessional statement of Shaikh Mohammed Ehtesham (A-58)

1268. The confessional statement of A-58 under Section 15 TADA was recorded on 15-5-1993 (930 hrs) and 12-6-1993 by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The said confession reveals the fact that the appellant was present at the time of landing at Shekhadi.

Confessional statement of Gul Mohammed Noor Mohammed Shaikh (A-77)

1269. The confessional statement of A-77 under Section 15 TADA was recorded on 17-4-1993 (1410 hrs) and 19-4-1993 (1800 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals as under:

(i) The appellant went to Dubai from Bombay on 17-2-1993 along with others.

(ii) From Dubai, the appellant went to Pakistan via PIA flight along with others.

(iii) All of the above participated in the training of arms and ammunition at Pakistan.

(iv) After completion of the training, they returned to Dubai and were administered an oath of secrecy and committing “Jehad” by Tiger Memon.

Confessional statement of Mohd. Rafiq Usman Shaikh (A-94)

1270. The confessional statement of A-94 under Section 15 TADA was recorded on 14-5-1993 (1830 hrs) and 16-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals as under:

(i) He met the appellant and other co-accused persons in Dubai.

(ii) All of them went to Islamabad from Dubai.

(iii) All of them participated in the training of arms and ammunition at Pakistan.

(iv) After completion of the training and returning to Dubai, they all were administered oath of secrecy by Tiger Memon.

Confessional statement of Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98)

1271. The confessional statement of A-98 under Section 15 TADA was recorded on 17-5-1993 (1430 hrs) and 20-5-1993 (1130 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals as under:

(i) The appellant participated in the weapons' training at Pakistan along with A-98 and others.

(ii) The appellant along with others was administered oath in order to combat “Jehad”.

(iii) The appellant returned from Dubai to Bombay on 3-3-1993 along with Gullu and A-98.

Confessional statement of Mohd. Parvez Zulfikar Qureshi (A-100)

1272. The confessional statement of A-100 under Section 15 TADA was recorded on 15-4-1993 (2330 hrs) and 17-4-1993 (1700 hrs) by Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The said confession reveals as under:

(i) The appellant was a friend of Javed Chikna and he accompanied Javed Chikna, A-100 and others while going to seashore in a jeep.

(ii) The appellant participated in the weapons' training at Pakistan along with A-100 and others.

(iii) After completion of the training, they returned to Dubai and were administered oath of secrecy and of committing “Jehad” by Tiger Memon.

1273. A perusal of the confessional statements of all the above accused viz. A-12, A-13, A-15, A-16, A-29, A-32, A-36, A-39, A-46, A-49, A-57, A-58, A-77, A-94, A-98 and A-100 clearly establish the fact that it corroborates with the confessional statement of the appellant (A-64). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established inasmuch as:

(i) He was closely associated with Javed Chikna (AA) who was one of the main conspirators in the blasts;

(ii) He actively participated in the landing of arms and explosives at Shekhadi smuggled for the purpose of committing terrorist acts;

(iii) He went to Pakistan and underwent training in arms and ammunition and explosives;

(iv) After completion of the aforesaid training, he took oath of maintaining secrecy and committing “Jehad” along with the other co-accused in Dubai at the instance of Tiger Memon;

(v) He participated in the conspiratorial meetings held at the residence of Babloo and Mobina where plans for executing the blasts were discussed;

(vi) At the behest of Tiger Memon, he formed a group with A-100; they were assigned the task of throwing hand grenades on aircrafts at Sahar Airport and conducting survey of the same;

(vii) He conducted survey of Sahar Airport along with PW 2 and A-100;

(viii) He actively participated in the filling operation carried out at Al-Husseini Building compound on the intervening night of 11-3-1993/12-3-1993.

(ix) On being asked by Tiger Memon to be ready, he replied that he was ready to perform his job;

(x) He admitted his guilt by telling A-12 that he will not participate in any such activities in future; and

(xi) After the blasts, he fled from Bombay fearing the arrest.

1274. Mr Manish, learned counsel for the appellant, contended that the confession was subsequently retracted on 15-2-1995. It is also contended that the confessional statements of the co-accused above as relied upon by the prosecution against him were subsequently retracted, and therefore, it is not safe to base the conviction on any of the aforesaid confessions. It has been further contended on behalf of the appellant that he was, in fact, arrested on 29-12-1994 though his arrest has been shown on 3-1-1995 and on 4-1-1995, he was produced before the Magistrate and that he was tortured, coerced and induced to make a confession.

1275. The prosecution pointed out that upon perusal of the order dated 4-1-1995, it is clear that no complaint of any ill-treatment at the hands of police was made by the appellant or his counsel and further even during the remand till 25-1-1995 he was permitted to meet his relatives and was allowed to consult his lawyer. The prosecution further pointed out that the confession of the appellant was recorded on 22-1-1995 and 24-1-1995 and on 4-2-1995, 20-2-1995 and 13-3-1995 he was produced before the Designated Court and on which dates also no complaint of any torture, coercion or ill-treatment at the hands of police was made by the appellant. In fact, after recording of the confession, on 25-1-1995, he was produced before the Magistrate along with his confessional statement. In view of the same, there is no substance in the contention raised by the counsel for the appellant. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion.

Deposition of prosecution witnesses

1276. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:

Deposition of Mohd. Usman Jan Khan (PW 2)

1277. The relevant material in PW 2's evidence is as follows:

(i) PW 2 knows the appellant. He identified the appellant in the court.

(ii) He met the appellant and the other co-accused on 2-2-1993 at Hindustan Soda Factory and they all left for Panvel and, thereafter, to Alibaug in a blue-coloured Commander jeep and stayed in the same room along with the appellant at Hotel Big Splash, Alibaug.

(iii) On the same day, at Hotel Big Splash, Tiger Memon convened a meeting in which he addressed that Muslims have suffered a lot in the communal riots in Bombay and Surat and they all have to help him in taking revenge against Hindus for this. He also told them that arms and ammunition were about to arrive from Pakistan on that day.

(iv) The appellant was present in the aforesaid meeting. Thereafter, all of them left for Shekhadi coast in two Commander jeeps.

(v) The appellant was present at Waghani Tower where arms and ammunition were transported and eventually opened, unloaded and then stored in the Tower.

(vi) The appellant also participated in the second landing at Shekhadi.

(vii) The appellant underwent training at Pakistan.

(viii) On completion of the aforesaid training and after returning to Dubai, PW 2 along with the appellant and others took oath of maintaining secrecy by swearing on the Quran.

(ix) The appellant attended the meeting at Shakil's house on 7-3-1993 where groups for surveying targets were formed. PW 2 and the appellant were in the same group.

(x) The appellant and PW 2 conducted survey of Sahar Airport as a prospective target.

(xi) The appellant attended meeting at Babloo's residence on 8-3-1993.

(xii) The appellant attended meeting at Shakil's residence on 10-3-1993.

The above deposition of PW 2 duly corroborates with the confession of the appellant as well as the confessions of the co-accused inasmuch as the appellant was present at Hindustan Soda Factory along with the other co-accused, participated in both the landings of arms and explosives at Shekhadi, was well aware of the fact that the aforesaid arms and ammunition were smuggled and landed for committing terrorist acts in order to avenge the demolition of Babri Masjid and atrocities committed on Muslims in the communal riots, participated in the weapons' training at Pakistan, took oath of maintaining secrecy and committing “Jehad” along with the other co-accused in Dubai at the instance of Tiger Memon, participated in the conspiratorial meetings and lastly he conducted survey of Sahar Airport as a prospective target.

Deposition of Anthony S. Mathew (PW 221)

1278. At the relevant time, PW 221 was working as an Immigration Officer and proved the departure of the appellant to Dubai on 17-2-1993 from Bombay. The relevant entries on the embarkation card (“X-340”) dated 17-2-1993 concerning the departure which was duly stamped by him, have been marked as Exts. 979 and 979-A.

Deposition of Ramchandra Barkade (PW 231)

1279. PW 231 is an Immigration Officer and has proved the arrival of the appellant to Bombay on 3-3-1993 from Dubai. The relevant endorsements on the disembarkation card (“X-373”) dated 3-3-1993 concerning the arrival have been marked as Exts. 1019 and 1019-A.

Deposition of Abdul Siddiqui (PW 367)

1280. Further, the deposition of PW 367 also proved that the appellant went to Dubai on 17-2-1993 from Sahar Airport, Bombay. PW 367 was also travelling to Dubai on 17-2-1993 by the same flight. His deposition reveals the following:

(i) He knew the appellant for the last 10 years as he resided in Mahim, where the appellant also resided.

(ii) He travelled to Dubai on 17-2-1993 by an Emirates Airlines flight.

(iii) When PW 367 was standing in the queue for boarding pass, he saw the appellant and Yeda Yakub who were also standing in the same queue.

(iv) He identified the appellant in the court.

(v) In Dubai, he stayed in Hotel Delhi Darbar where he again met the appellant.

The aforesaid deposition of PW 367 corroborates with the confession of the appellant as well as the evidence of PW 2.

Deposition of Harishchandra Singh (PW 474)

1281. The confession of the appellant was recorded by PW 474, the then Superintendent of Police, CBI/SPE/STF, New Delhi. His deposition reveals the following:

(i) He had not taken any part in the investigation of the Bombay Blasts case.

(ii) He received a telephonic request from Deputy Superintendent of Police, Rishi Prakash of CBI/STF, Bombay, for recording the confession of the appellant; accordingly, he reached the Bombay office on 22-1-1995.

(iii) Thereafter, a written request was made to him for recording the said confession and after making endorsement upon the request letter, he asked for the appellant to be produced before him.

(iv) He ensured that the appellant was making a voluntary confession and that he was not pressurised, coerced or threatened by anybody to give the confession. He also gave him time till 24-1-1995 for re-consideration of his desire to make a confession.

(v) On 24-1-1995, the appellant was again produced before him. They were the only persons in the chamber.

(vi) He ascertained whether sufficient time was given to the appellant for re-consideration or not and warned the appellant that any confession made by him would be used against him.

(vii) He recorded the confession of the appellant and also read it over to him.

(viii) The appellant told him that the confession was correctly recorded and the same was also signed by him as well as by PW 474.

1282. We are satisfied with the deposition of PW 474 that the confession of the appellant was recorded in accordance with the prescribed rules and after following the due process of law. No discrepancy whatsoever has been established on behalf of the appellant pertaining to the aforesaid deposition.

Sentence

1283. The prosecution pointed out that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 6-10-2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:

(i) He has been in custody since 3-1-1995;

(ii) His wife is suffering from TB and low blood pressure since the last 8 years and his son had suffered head injury;

(iii) He had been to Shekhadi under the impression that it was landing of silver goods and after realising that it was not silver, he disassociated himself from the landing;

(iv) He was forced to participate in the second landing since Tiger Memon, Javed Chikna and others had threatened to kill his family members;

(v) In the said conspiratorial meetings, he protested to carry out any operation as it was the month of Ramzan but he was threatened by Tiger and Javed that he would be shot on the spot if he backed out;

(vi) If he got a chance, he would be able to look after his family and would be able to lead life as a law-abiding citizen; and

(vii) Ultimately, he was not involved in the commission of any terrorist act and for the acts committed by him, he had undergone sufficient sentence since he had been in custody for about 12 years (as on date approximately 18 years), so a lenient view be taken while awarding sentence to him.

1284. It is pointed out by the prosecution that all the above factors have been duly considered by the Designated Court and the aforesaid contentions are devoid of any merit having regard to the fact that the appellant had sufficient potential for commission of terrorist acts owing to have acquired training in handling sophisticated arms and ammunition at Pakistan. Further, it is stated that his contention that he was forced to participate in the second landing since Tiger Memon, Javed Chikna and others had threatened to kill his family members is not tenable as despite being threatened at the time of first landing and after getting knowledge that the said landing was of arms and ammunition and explosives, he chose to remain silent instead of approaching the police or taking recourse to law. Despite all this, he participated in the second landing at Shekhadi, and moreover, he went to Pakistan at the instance of the same persons who had threatened him. Further, when Tiger Memon asked him to be ready, he told him that he was ready on the night of 11-3-1993.

1285. It is clear that the contention on behalf of the appellant that he dissociated himself at the time of the first landing at Shekhadi is not made out in the light of other evidence on record. Further, the appellant participated in the acts mentioned above willingly and with complete knowledge. He knew that the arms and ammunition, RDX and hand grenades which were smuggled into India at Shekhadi would be used for committing terrorist acts. It is clearly established from his confession that Tiger Memon had told his associates that the smuggled arms were to be used to take revenge for the demolition of Babri Masjid and for causing blasts in Bombay. As submitted, the above fact had come to his knowledge after the landing at Shekhadi and much before his going to Pakistan. Despite that, he went to Pakistan via Dubai and received training in handling of arms and ammunition and explosives. Even in Dubai, he attended the conspiratorial meeting convened by Tiger Memon in which oath was administered to maintain secrecy regarding the aforesaid training and to take revenge.

1286. It is also relevant to note that after realising that explosions took place at various places in Bombay on 12-3-1993, the appellant absconded and remained away from the clutches of law until he was arrested by the police. He stayed at various places in assumed names in order to conceal his identity to avoid his arrest. Thus, his fleeing away after the explosions took place only goes to show his association and involvement in the conspiracy to cause blasts and, undoubtedly, he was a part of it. It also points out his guilt in the commission of the said acts in furtherance of the conspiracy.

1287. Therefore, in view of the entire evidence enumerated above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the said offences for which he has been charged and the sentence awarded by the Designated Court to the appellant is justified. Consequently, the appeals fail and are liable to be dismissed.

Criminal Appeal No. 616 of 2008

Salim Rahim Shaikh (A-52) v. State of Maharashtra

1288. Mr Mustaq Ahmed, learned counsel appeared for the appellant (A-52) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for respondent (CBI).

1289. The instant appeal is directed against the final order and judgment of conviction and sentence dated 4-12-2006 and 14-6-2007 respectively, whereby the appellant (A-52) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

1290. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-52). The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of, or injuries to any person or persons, loss of or damage to, and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1291. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts:

At head secondly, the appellant committed an offence punishable under Section 3(3) TADA by doing the following overt acts:

(a) He participated in the training in handling of arms, ammunition and explosives in Pakistan for which he travelled in a fictitious name as “Salim Babu Wrane”;

(b) He assisted in the preparation of vehicle bombs by filling explosives therein, at Al-Hussaini Building for planting the same at various places in Bombay and its suburbs.

At head thirdly, the appellant drove to Mahim Causeway on 12-3-1993 along with the other co-accused in a Maruti van bearing no. MP 13 D 0385 and lobbed hand grenades on the hutments causing explosions resulting into death of 3 persons, injuries to 6 others and damage to property worth Rs 50,000 and thereby committed an offence punishable under Section 3(3) TADA read with Section 149 IPC.

At head fourthly, the appellant, along with other co-accused persons, was a part of an unlawful assembly as mentioned above, while throwing the hand grenades at the said hutments at Mahim Causeway, which resulted in death, injuries and damage to properties and thereby committed an offence punishable under Section 148 IPC.

At head fifthly, the appellant, by causing the death of 3 persons as mentioned above, committed an offence punishable under Section 302 read with Section 149 IPC.

At head sixthly, the appellant, by causing the abovesaid explosions, which caused death and injuries to various persons committed an offence punishable under Section 307 read with Section 149 IPC.

At head seventhly, the appellant, by causing the abovesaid explosions, which resulted in injuries to various persons also committed an offence punishable under Section 324 read with Section 149 IPC.

At head eighthly, the appellant, by causing the aforesaid explosions, which resulted into damage to the properties worth Rs 50,000, committed an offence punishable under Section 436 read with Section 149 IPC.

At head ninthly, during the period from January 1993 to 26-4-1993, the appellant possessed one 9 mm mouser pistol and 48 cartridges, which he concealed at Benganwadi hutments, Gowandi, unauthorisedly, in a notified area of Greater Bombay and thereby committed an offence punishable under Section 5 TADA.

At head tenthly, the appellant, possessed arms and ammunition and concealed the same with the intent to commit terrorist acts and thereby committed an offence punishable under Section 6 TADA.

At head eleventhly, the appellant, by possessing the abovementioned arms and ammunition, unauthorisedly, committed an offence punishable under Section 3 and Section 7 read with Sections 25(1-A) and 25(1-B)(a) of the Arms Act, 1959.

Conviction and sentence

1292. The charges mentioned above were proved against the appellant (A-52). The appellant has been convicted and sentenced for the abovesaid charges as under:

1292.1 The appellant has been convicted for the offence of conspiracy under Section 3(3) TADA and under Section 120-B IPC and sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge firstly)

1292.2 The appellant has also been convicted for the commission of offence punishable under Section 3(3) TADA and sentenced to RI for 10 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge secondly)

1292.3 The appellant has also been convicted for the commission of offence punishable under Section 3(3) TADA and sentenced to RI for 14 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge thirdly)

1292.4 The appellant has also been convicted for the commission of such acts as found proved under Section 148 IPC and sentenced to undergo RI for 1 year. (charge fourthly)

1292.5 The appellant has also been convicted for the commission of such acts as found proved under Section 302 read with Section 149 IPC and sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge fifthly)

1292.6 The appellant has been convicted for the commission of such acts as found proved under Section 307 read with Section 149 IPC and sentenced to RI for 10 years along with a fine of Rs 10,000, in default, to further undergo RI for 3 months. (charge sixthly)

1292.7 The appellant has been convicted for the commission of such acts as found proved under Section 324 read with Section 149 IPC and sentenced to RI for 2 years. (charge seventhly)

1292.8 The appellant has been convicted for the commission of such acts as found proved under Section 436 read with Section 149 IPC and sentenced to RI for 10 years along with a fine of Rs 5000, in default, to further undergo RI for 1 month. (charge eighthly)

1292.9 The appellant has been convicted for the commission of such acts as found proved under Section 5 TADA and sentenced to RI for 6 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge ninthly)

1292.10 The appellant has also been convicted for the offence committed under Section 3 and Section 7 read with Sections 25(1-A) and 25(1-B)(a) of the Arms Act, 1959, but no separate sentence was awarded on the said count. (charge eleventhly)

Evidence

1293. The evidence against the appellant (A-52) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimony of prosecution witnesses; and

(iv) documentary evidence.

Confessional statement of Salim Rahim Shaikh alias Salim Babu Wrane (A-52)

1294. The involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 TADA on 15-4-1993 (2045 hrs) and 18-4-1993 (1030 hrs) by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. We were taken through his entire confessional statement. His confession reveals as under:

(i) He was residing at Mahim during 1992-1993 when the riots took place.

(ii) His maternal aunt was killed during the riots in January 1993 and he took an oath to take revenge for her death.

(iii) On 11-2-1993, at the instance of Javed Chikna (AA), he was taken by Mohd. Usman Jan Khan (PW 2) and Mohd. Farooq Mohammed Yusuf Pawale (A-16) to the airport from where he left for Dubai along with the others for training.

(iv) He knew Tiger Memon and was aware of his illegal activities.

(v) In Dubai, on 13-2-1993, he attended a meeting in which Tiger Memon and Javed Chikna discussed about the communal riots.

(vi) On 14-2-1993, he along with Javed Chikna and other co-accused, went to Dubai from Islamabad at the instance of Tiger.

(vii) In Islamabad, on 17-2-1993, he along with the others was taken to the training camp in a jungle where they all were trained in firing arms, opening and assembling of LMG, throwing hand grenades, RDX, detonators, timer pencils, etc.

(viii) On 28-2-1993, he along with the other co-accused persons left Islamabad and reached Dubai where Tiger Memon administered oath to them on Quran that they will not fight with each other and will not disclose anything about the said training and will cause loss to those persons who had caused loss to their community.

(ix) On 3-3-1993, he along with the others, returned to Bombay.

(x) Thereafter, he attended a meeting held by Tiger at the residence of Babloo at Khar in which they decided to blast bombs in Bombay after Ramzan.

(xi) The next day, he attended another meeting at Tiger's residence in which Tiger gave Rs 5000 to each one of them and he was attached with the group of Usman.

(xii) On the next day, he also attended another meeting at the flat of Tiger Memon.

(xiii) On 10-3-1993, he, along with PW 2 and Firoz alias Akram Amani Malik (A-39) went to Bharat Petroleum Refinery, Chembur for survey. Thereafter, they met Tiger Memon and informed him about the unfeasibility of causing blast at the said refinery owing to the presence of security guards.

(xiv) Thereafter, on the instructions of Tiger Memon, he again went to survey the said refinery along with Bashir and Zakir Hussain Noor Mohammed Shaikh (A-32) and informed Tiger and Usman about the risk.

(xv) On 11-3-1993, he and others were told by Usman, in the presence of Tiger, to throw hand grenades in Fisherman Colony, Mahim, at which time the appellant refused but agreed to drive the vehicle for them.

(xvi) On the same day, in the night, he went to Tiger's residence at Al-Hussaini Building where Tiger, Javed Chikna and others were also present. In the garage of the said building, he saw that RDX was being loaded into the vehicles and scooters. He parked some of the RDX laden vehicles outside the garage since he thought his hands would become black due to the colour of RDX.

(xvii) On 12-3-1993, at about 2.00 p.m, he took a pistol with magazines and drove A-32, Mohd. Moin Faridulla Qureshi (A-43) and others in Tiger's Maruti van containing 30 hand grenades to Mahim slope Koliwada, where the hand grenades were to be thrown as per the plan.

(xviii) After reaching Mahim Koliwada, while he was in the driver's seat and the car engine being on, other persons sitting in the van came out of the vehicle and threw hand grenades causing blasts.

(xix) After throwing hand grenades, they immediately boarded the said Maruti van which was driven by him and sped away towards Bandra Reclamation whereafter going a little ahead and taking a right turn, all five persons got down from the van and left. At that time, A-39 took the bag of hand grenades in which A-52's pistol was also kept and left with all others.

(xx) Thereafter, he (A-52) parked the vehicle there and went to Tiger's house where he had parked his scooter and then went to Versova to his cousin's house.

(xxi) On the next day, since the police was investigating the blasts, he took refuge in Madina Masjid and did not go to his house.

1295. On perusal of the above confession of the appellant, the following facts emerge:

(i) He took oath to take revenge for his aunt's death in the riots;

(ii) He participated in a meeting at Dubai where Tiger Memon and Javed Chikna spoke about communal riots;

(iii) He participated in the weapons' training at Pakistan for the purpose of committing terrorist acts;

(iv) He took oath on holy Quran that he will remain together, will not fight with each other and will not tell anyone about the training including his wife, children and relatives and further will cause loss to the persons who had caused loss to the people of his community;

(v) He was present in the garage at Al-Hussaini Building in the night intervening 11-3-1993/12-3-1993 when RDX was being filled in vehicles;

(vi) He parked the vehicles loaded with RDX in and out of the garage;

(vii) He drove the co-accused persons in Maruti van no. MP 13 D 0385 to Mahim Causeway where hand grenades were thrown on the hutments;

(viii) He carried a pistol along with him.

1296. A perusal of his entire confession, questions put by the recording officer and the procedure followed clearly show that the abovesaid confession is voluntary, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 TADA and the Rules framed thereunder.

1297. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-52) are summarised hereinbelow:

Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)

1298. The confessional statement of A-13 under Section 15 TADA has been recorded on 16-5-1993 (1030 hrs) and 18-5-1993 (1715 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-13 with reference to the appellant is summarised below:

(i) On 11-3-1993, the appellant was present at Tiger's residence along with other co-accused persons.

(ii) He was present in the garage of Al-Hussaini Building when RDX was being loaded in vehicles.

(iii) In the morning of 12-3-1993, the appellant was present at Tiger's residence, where Javed gave Rs 5000 to everyone present therein including the appellant and told A-13 to accompany the appellant along with others in a Maruti van in order to throw hand grenades at Mahim Causeway slope.

(iv) The appellant drove the van to Mahim Causeway in which A-13, Mehmood, Feroz, Zakir and Abdul Akhtar were also seated.

(v) On reaching the Fisherman Colony, Mahim, the appellant informed everyone in the van to be ready to throw hand grenades and parked the van on the roadside after which they threw hand grenades at Fisherman Colony and caused explosions. The appellant was also carrying a pistol with him.

Confessional statement of Mohd. Farooq Mohammed Yusuf Pawale (A-16)

1299. The confessional statement of A-16 under Section 15 TADA has been recorded on 20-5-1993 (1630 hrs) and 22-5-1993 (1645 hrs) by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The confession of A-16 with reference to the appellant is summarised below for ready reference:

(i) On 10-2-1993, the appellant went to Dubai along with the other accused persons.

(ii) On 13-2-1993, he along with the other co-accused persons travelled to Islamabad (Pakistan) for training.

(iii) He along with the others attended the training of dismantling and handling of firearms and bombs including chemical bombs as well as hand grenades in Islamabad (Pakistan).

(iv) On 7-3-1993, he attended a conspiratorial meeting held at Tiger's residence at Khar wherein Tiger said that he was going to cause riots in Bombay and informed everyone not to disclose it to anyone.

(v) On 12-3-1993, A-16 handed over the pistol and rounds to the appellant.

Confessional statement of Mohd. Iqbal Mohammed Yusuf Shaikh (A-23)

1300. The confessional statement of A-23 under Section 15 TADA has been recorded on 20-5-1993 (1000 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-23 with reference to the appellant is summarised hereunder:

(i) He was present at the residence of Tiger Memon.

(ii) He drove the vehicles in and out of the garage which were loaded with RDX.

(iii) On 12-3-1993, he was present at the time when Javed and Usman distributed a bag full of hand grenades amongst the co-accused persons.

Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)

1301. The confessional statement of A-29 under Section 15 TADA has been recorded on 18-5-1993 (1830 hrs) and 21-5-1993 (1445 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-29 with reference to the appellant is summarised below for ready reference:

(i) He attended training in Pakistan for handling of arms and explosives.

(ii) On 12-3-1993 he along with the other co-accused was present in the flat of Tiger Memon at Al-Hussaini Building where Javed Chikna gave Rs 5000 to everyone present there.

Confessional statement of Zakir Hussain Noor Mohammed Shaikh (A-32)

1302. The confessional statement of A-32 under Section 15 TADA has been recorded on 16-5-1993 (1125 hrs) and 19-5-1993 (1730 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-32 with reference to the appellant is summarised hereunder:

(i) He travelled to Pakistan and was given a fictitious name “Imran” and participated in weapons' training.

(ii) He left Dubai on 3-3-1993 and came back to Bombay.

(iii) He was present at the flat of Tiger Memon on 10-3-1993. On the said date, Tiger Memon formed a group for survey of the refinery.

(iv) He was present at Al-Hussaini in the night intervening 11-3-1993/12-3-1993.

(v) Usman gave pistol to the appellant and Nasim.

(vi) The appellant drove the co-accused persons to Mahim Causeway where he asked them to get down and do their job of throwing hand grenades which they did and caused explosions.

(vii) After the explosions, the appellant called them into the car and drove it fast.

Confessional statement of Abdul Khan alias Yakub Khan Akhtar Khan (A-36)

1303. The confessional statement of A-36 under Section 15 TADA has been recorded on 19-5-1993 (1740 hrs) and 21-5-1993 (1820 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-36 with reference to the appellant is summarised below:

(i) He participated in the weapons' training at Pakistan.

(ii) After returning from Pakistan, Tiger Memon administered oath to all the accused persons by placing their hands on holy Quran that they will do Jehad after reaching Bombay and will take revenge for atrocities committed on Muslim community and whatever they have learnt they will not disclose it to anyone.

(iii) He was present at Al-Hussaini Building along with the co-accused persons.

(iv) He parked the vehicles in and out of the garages after they were filled with RDX.

(v) He was present at Al-Hussaini on the morning of 12-3-1993 and he along with others received Rs 5000 from Javed Chikna.

(vi) He drove the co-accused persons and asked them to get down and explode bombs at Mahim Causeway.

Confessional statement of Firoz alias Akram Amani Malik (A-39)

1304. The confessional statement of A-39 under Section 15 TADA has been recorded on 19-4-1993 (2230 hrs) and 23-4-1993 (2050 hrs) by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. The confession of A-39 with reference to the appellant is summarised below:

(i) He participated in the training of handling of arms, ammunition and explosives.

(ii) After returning from Pakistan, Tiger Memon administered oath to all of them on holy Quran that they will not disclose it to anyone.

(iii) On 7-3-1993, he attended a conspiratorial meeting at the residence of Nasir Babloo.

(iv) On 10-3-1993, the appellant, along with the other co-accused persons, surveyed Shiv Sena Bhawan.

(v) He was present at Al-Hussaini Building where Tiger Memon told them that they will be given Rs 5000 each.

(vi) He along with the other co-accused surveyed Chembur Refinery.

(vii) He drove the co-accused in a van to Mahim Causeway where they lobbed hand grenades at Fisherman Colony and caused explosions.

Confessional statement of Nasim Ashraf Shaikh Ali Barmare (A-49)

1305. The confessional statement of A-49 under Section 15 TADA has been recorded on 16-5-1993 (930 hrs) and 18-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-49 with reference to the appellant is summarised below:

(i) He participated in the weapons' training at Pakistan.

(ii) He was asked by Javed to bring Maruti car for the purpose of filling RDX in the garage.

Confessional statement of Shaikh Ali Shaikh Umar (A-57)

1306. The confessional statement of A-57 under Section 15 TADA has been recorded on 19-4-1993 (1200 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A-57 with reference to the appellant stated that he participated in the filling of RDX in the vehicles.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

1307. The confessional statement of A-64 under Section 15 TADA has been recorded on 22-1-1995 and 24-1-1995 by Shri H.C Singh (PW 474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The confession of A-64 with reference to the appellant is summarised below:

(i) He participated in the training in handling of arms and ammunition at Pakistan.

(ii) He along with the other co-accused persons took oath that they will take revenge against Hindus and will not disclose to anybody about the training.

(iii) He was present at Al-Hussaini in the night intervening 11-3-1993/12-3-1993.

Confessional statement of Mohd. Rafiq Usman Shaikh (A-94)

1308. The confessional statement of A-94 under Section 15 TADA has been recorded on 14-5-1993 (1830 hrs) and 16-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A-94, with reference to the appellant, stated that he participated in the weapons' training at Pakistan.

Confessional statement of Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98)

1309. The confessional statement of A-98 under Section 15 TADA has been recorded on 17-5-1993 (1430 hrs) and 20-5-1993 (1130 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-98 with reference to the appellant, is summarised below:

(i) He received training in handling of arms and ammunition, hand grenades and making of bombs by using RDX.

(ii) He along with the other co-accused took oath of maintaining secrecy and committing Jehad for the sake of Islam. Further, he was also present when Tiger spoke about the atrocities committed on Muslims during the communal riots in Bombay and taking revenge for the same.

Confessional statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100)

1310. The confessional statement of A-100 under Section 15 TADA has been recorded on 15-4-1993 (2330 hrs) and 17-4-1993 (1700 hrs) by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The confession of A-100 with reference to the appellant is summarised below:

(i) He participated in the weapons' training at Pakistan.

(ii) He was present in Dubai when at the instance of Tiger Memon, he and the other co-accused took oath of maintaining secrecy and committing Jehad for the sake of Islam. Further, he was also present when Tiger spoke about the atrocities committed on Muslims during the communal riots in Bombay and taking revenge for the same.

(iii) He was present at Al-Hussaini Building when Tiger distributed Rs 5000 to all the accused persons.

(iv) He was present at Tiger Memon's residence at Al-Hussaini Building on the night intervening 11-3-1993/12-3-1993.

(v) He was driving the Maruti van.

1311. A perusal of the confessional statements of all the above accused viz. A-13, A-16, A-23, A-29, A-32, A-36, A-39, A-49, A-57, A-64, A-94, A-98 and A-100 clearly establishes the fact that they corroborate with each other and also with the confessional statement of the appellant (A-52). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established inasmuch as:

(i) The appellant attended the conspiratorial meeting at the residence of Tiger Memon.

(ii) The appellant was present at Al-Hussaini in the night intervening 11-3-1993/12-3-1993 and witnessed the filling of RDX in vehicles.

(iii) On 12-3-1993, Javed and Usman (PW 2) distributed a bag full of hand grenades amongst the co-accused persons in his presence.

(iv) The appellant travelled to Dubai on 11-2-1993 and returned to Bombay on 3-3-1993.

(v) The appellant attended training in arms and ammunition at Pakistan where he was given a fictitious name.

(vi) The appellant, along with the other co-accused persons, took oath on holy Quran to combat Jehad against Hindus.

(vii) The appellant drove the co-accused persons in a Maruti van to Mahim Causeway where they lobbed hand grenades at Fisherman Colony causing explosions.

(viii) The appellant was also carrying a pistol.

(ix) The confession of A-32 shows that the appellant was not merely a driver, in fact, he was the commander of his group.

1312. It is contended by Mr Mustaq Ahmed on behalf of the appellant that the appellant has been addressed to by various accused persons by different names viz. “Salim Bazarwala”, “Salim Dandekar”, “Salim Driver” and “Salim Kapadawala” which refer to different persons and not the appellant-accused whose real name is Salim Babu Wrane alias Salim Rahim Shaikh and thus, in view of this, there is doubt as to the actual presence of the appellant-accused referred to in the above confessions. Further, it is also contended that the prosecution has falsely “manufactured” a case against him by putting different names. The appellant-accused was known by different names to different co-accused persons and this does not, in anyway, dispute the involvement of the appellant in the crime. From the confessions of the co-accused and also from his own confession, it is evident that there is corroboration of his involvement in the crime. Each confession corroborates with the fact of presence of the appellant and connects him to the crime. Moreover, there is no contradiction or discrepancy in the above confessions pertaining to the involvement of the appellant. The appellant has been identified by the eyewitnesses which further corroborate the confessions and establish the identity of the appellant.

1313. It is further contended on behalf of the appellant that the prosecution has mislead the court and created confusion by referring to and addressing Mahim Causeway as Mahim Koliwada at one place and as Fisherman Colony at the other and sometimes also referred to it as Macchimar Colony. From the materials placed, it is established that Mahim Causeway, Mahim Koliwada, Fisherman Colony and Macchimar Colony are one and the same locality and is locally known and addressed by these names by its residents. Further, this locality is inhabited by the Marathi and Konkani speaking fishermen community. Hence, the names “Koliwada” and “Macchimar” mean Fisherman Colony in Konkani and Marathi respectively.

Deposition of prosecution witnesses

1314. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:

Deposition of Mohd. Usman Jan Khan (PW 2)

1315. The relevant material in PW 2's evidence is as follows:

(i) He deposed that he knows the appellant as Salim Bazarwala.

(ii) He identified the appellant in the court.

(iii) He deposed that the appellant travelled to Pakistan via Dubai.

(iv) He deposed that the appellant was given a fictitious name “Imran”.

(v) He deposed about the training at Pakistan.

(vi) He deposed that the appellant was present in the conspiratorial meeting.

(vii) He deposed that the appellant was present in the meeting at the residence of Babloo.

(viii) He deposed about the survey of refinery along with the appellant and other co-accused.

(ix) He deposed that the appellant was given a pistol and rounds.

(x) He deposed that the appellant was given the role to move the vehicles in and out of the garage which were filled with RDX.

(xi) He deposed that the appellant along with the other co-accused was instructed by Javed Chikna to throw hand grenades at Fisherman Colony, Mahim on 12-3-1993.

The above deposition of the approver duly corroborates with the confessions of the co-accused as well as the confession made by the appellant.

Eyewitnesses

Deposition of Laxman Patil (PW 5)

1316. PW 5 is a resident of Fisherman Colony. He witnessed the incident while he was waiting on the road.

(i) He deposed that the driver was sitting in the van and the engine was in start condition.

(ii) He identified the appellant in court.

(iii) He identified the appellant in TIP dated 15-5-1993 conducted by Special Executive Magistrate, Moreshwar P. Thakur (PW 469) at Mahim Police Station.

(iv) He also identified Vehicle No. MP 13 D 0385 as the car in which the appellant came to Mahim slope in order to throw hand grenades.

Deposition of Santosh Patil (PW 6)

1317. PW 6 is a resident of Fisherman Colony, Mahim and deposed as under:

(i) He deposed that he witnessed the incident while he was waiting near the Municipal School at Mahim slope and further saw that the driver of the van was calling for the persons lobbing the hand grenades to get into the car after explosion.

(ii) He identified the appellant in the court.

(iii) He identified the appellant in TIP dated 15-5-1993 conducted by the Special Executive Magistrate (PW 469) at Mahim Police Station.

(iv) He also identified Vehicle No. MP 13 D 0385 as the car in which the appellant came to Mahim slope in order to throw hand grenades.

Deposition of Shashikant Shetty (PW 13)

1318. PW 13 is also an eyewitness and a resident of Fisherman Colony, Mahim. He witnessed a part of the incident when he came out after hearing the sound of explosions. His deposition reveals as under:

(i) He identified the appellant in court being the driver of the van.

(ii) He also identified the appellant in the identification parade dated 15-5-1993 conducted by the Special Executive Magistrate (PW 469) at Mahim Police Station.

(iii) He also identified the Maruti van bearing No. MP 13 D 0385 in which accused persons came to Mahim Macchimar Colony.

(iv) He lodged an FIR in respect of explosions at Fisherman Colony, Mahim.

1319. All the aforesaid eyewitnesses to the said incident have consistently deposed that the appellant was driving the van which came to Fisherman Colony and caused explosions. They have identified the appellant in the court. They further identified the Maruti van bearing number MP 13 D 0385 as the vehicle in which the appellant along with the other co-accused came to the scene of the crime and fled away after lobbing the hand grenades.

Investigation, recoveries and reports

1320. The aforesaid eyewitnesses viz. PWs 5, 6 and 13 have duly identified the appellant in the TIP dated 15-5-1993 conducted by Shri Moreshwar Thakur (PW 469) for which memorandum panchnama marked as Ext. 1515 was prepared.

1321. On 12-3-1993, Shantaram Gangaram Hire (PW 562), Police Officer, visited the blast site i.e Fisherman Colony, Mahim and prepared spot panchnama in the presence of panch witnesses viz. Dayaram Timbak Akare and Mahendra Sadanand Mehre. PW 562, in the presence of Tamore (PW 330) and experts collected the articles from the blast site vide panchnama, Ext. 1221 which were sent to the Forensic Science Laboratory (“FSL”) for opinion. FSL Report, Exts. 1943, 1943-A(i) and 1943-A(ii) proved the remnants to be explosives and part of hand grenades.

1322. The deposition of panch witness, Sakharam Sathe (PW 35) reveals discovery of a pistol and 48 rounds belonging to the appellant from Zopada in Bainganwadi. The discovery was made at the instance of the appellant who led the police party and the panchas to the place of recovery. Ext. 102 is the panchnama of all the events correctly drawn by API Shri Kolekar (PW 526). Articles 38 and 39 are the said pistol and 46 intact cartridges and two empties out of 48 cartridges seized by him on 13-4-1993 from the said hutments at Bainganwadi at Gowandi is under the panchnama, Ext. 102.

Evidence regarding injured victims and deceased

1323. It is seen from the records that in July 1993, Achyut Shamrao Pawal (PW 542), Police Inspector, collected the injury certificates of injured persons, namely, Mr Gurudutt Agaskar, Ms Rajashri Agaskar and Ms Sheetal Keni from Bhaba Hospital which amply prove that they sustained injuries during the blast. Injured Shashikant Shetty (PW 13) and Sheetal Keni (PW 412) also proved to have sustained injuries during the blast. Dr Wadekar (PW 641) and Dr Krishna Kumar (PW 640) were the doctors who have proved the injury certificates issued to PW 13 and PW 412 respectively.

1324. Gajanan Tare (PW 413) (husband of the deceased Gulab Tare) and Karande (PW 414) (nephew of the deceased Hira Dhondu Sawant) claimants of two bodies, have proved the death of Mrs Gulab Tare (wife of PW 413) and Smt Hira Dhondu Sawant (PW 414's aunt) in the said incident. PW 482 and PW 480 have established the cause of death to be the injuries received on 12-3-1993. Achyut Shamrao Pawal (PW 542) also proved the death of 3 persons at Fisherman Colony in the said incident.

Vehicle used for committing the act

1325. It is seen from the materials that the said Maruti van in which A-13, A-32, A-36, A-39, A-43 and Mehboob Liyaqat Khan (AA) was driven by the appellant to cause blasts at Fisherman Colony, Mahim was arranged by Suleman Lakdawala (PW 365) at the behest of Mohd. Shafi Jariwala (AA). This has also been proved by the said witness. Further, the depositions of Kailash Govind Rao Baheti (PW 342) and Shakeel Suleman Hasham (PW 366) are pertinent as it completes the link relating to purchase/arrangement of the said Maruti van used in the incident.

Deposition of Kailash Govind Rao Baheti (PW 342)

1326. PW 342 deposed as follows:

“On 18-1-1993 I had received a telephone call given by Shakil Hasham from Bombay. Shakil requested me to book one red-coloured Maruti van in the name of Asif Darvesh resident of M.G Road, Indore and another new Maruti van of blue colour in the name of Shri Kasam Ahmed residing at Indira Nagar, Ujjain. He also requested me to register both the Maruti vans at Indore and send the same to Bombay. He also told me that the payments of the same would be made at Bombay to the driver. I quoted a price of Rs 1,69,000 per vehicle inclusive of registration and transport charges. I was having red-coloured Maruti van bought by me from M/s Bhatia & Company, Gurgaon, Haryana and blue-coloured Maruti van bought from Vipul Motors, Faridabad, Haryana, in my stock. I had bought both the said vehicles by making advance payment. After receipt of booking from Shakil Hasham for red and blue-coloured brand new Maruti vans, I informed the details of the purchasers to M/s Bhatia Company and M/s Vipul Motors. After receipt of the said letters and bills from both the said companies in the name of purchasers who wanted red and blue Maruti vans I sent papers of both the vans for registration to RTO. The blue-coloured Maruti van was registered in the name of Kasam Ahmed at Ujjain RTO. The blue-coloured Maruti van could not be registered at Indore due to lack of E-Form necessary for registration. Thereafter, I sent both the said vans to Bombay to Shakil Hasham. Shakil Hasham received the delivery and paid Rs 3,38,000 to my drivers. My drivers gave the said amount to me. I made the necessary entries in my office record for sending the said vans to Bombay to Shakil Hasham after purchasing the same for the parties told by him. The RTO Authority at Ujjain had given registration number MP 13 D 0385 to blue-coloured Maruti van. Today I am not remembering the engine number and chassis number of the said Maruti van.”

(emphasis supplied)

Deposition of Shakeel Suleman Hasham (PW 366)

1327. In his deposition, PW 366 deposed that he had asked PW 342 to arrange for two Maruti vans (red and blue colour) in February 1993. Both the vans were purchased in Madhya Pradesh and the blue Maruti van was registered in Ujjain with the registration number MP 13 D 0385. PW 366 further deposed as under:

“In the same month (February 1993) I had also arranged for one blue colour and another red colour Maruti vans also registered at Madhya Pradesh for Suleman Lakdawala. The said vehicles were registered at Madhya Pradesh Indore in the name of the purchasers given to me by Suleman Lakdawala. I had given the work of registration to one Kailash Baheti of Indore. Both the said vans were insured by Insurance Agent Rakesh Tiwari before giving the same to Suleman Lakdawala. Both the said vehicles had arrived from Indore. I had sent the same to the petrol pump of Suleman and asked him to take the delivery from the said drivers who had brought the delivery of the said vehicles. Accordingly he took the delivery by making payment to the drivers.”

(emphasis supplied)

It is relevant to note that this number and the said blue Maruti van has been identified by PWs 5, 6 and 13 in their depositions as the vehicle which was involved in the said incident at Fisherman Colony. Thus, PW 342, therefore, corroborates the deposition of PW 366 in that both the vans were purchased in Madhya Pradesh and the blue Maruti van was registered in Ujjain and was given registration number MP 13 D 0385.

1328. Further, the deposition of Mukhtar Ahmed (PW 281) reveals that the cavity was prepared by him in the said Maruti van at the behest of Mohd. Shafi Jariwala (AA). This further corroborates the fact that it is the same vehicle which was used in Mahim Causeway incident.

Evidence of travel to Dubai for training at Pakistan

Deposition of Asmita Ashish Bhosale (PW 215)

1329. PW 215, an Immigration Officer, proved the Embarkation Card (“X-315”) (Box No. 18) that was submitted at Sahar Airport on 11-2-1993 concerning the departure of the appellant who was flying to Dubai. The relevant entries have been marked as Exts. 964, 964-A, 964-A(1) and 964-A(2).

Deposition of Dadasaheb Godse (PW 238)

1330. PW 238, an Immigration Officer proved the arrival of the appellant to Bombay from Dubai on 3-3-1993. The relevant endorsements on the Disembarkation Card (“X-394”) (Box No. 18) have been marked as Exts. 1042-A(1) and 1042-A(2) colly.

1331. The above depositions further corroborate with the confession made by the appellant that he had been to Dubai on 11-2-1993 and had returned to Bombay on 3-3-1993.

1332. In view of the above, it can safely be inferred that the appellant had acquired skill for commission of terrorist acts after the training in handling sophisticated arms and ammunition at Pakistan. He took oath that he will take revenge for the killing of his aunt during riots and also that he will take revenge from Hindus and will not disclose about the conspiracy to anyone. He engaged himself in commission of acts furthering the object of conspiracy which was heinous having scant disregard for human life. The appellant parked the cars in and out of the garages which were filled with RDX and thereby assisted in the preparation of motor vehicle bombs which were planted by other co-conspirators which caused considerable damage to the property and lives of the people. The appellant was also responsible for taking the other co-conspirators to Fisherman Colony, Mahim for commission of terrorist acts and, thereafter, they fled away from that place and he was placed in a commanding capacity.

1333. Pursuant to the conspiracy, the appellant has actively participated in various conspiratorial acts of planning, training, preparation and execution. The evidence on record clearly proved the charges against the appellant beyond reasonable doubt.

Sentence

1334. Regarding sentence, it is seen that the appellant was given full opportunity to put forth his defence on the question of sentence. He filed a statement dated 18-12-2006 on the quantum of sentence (Ext. 3054). All his grievances were duly considered by the Designated Court. In view of our discussion, we fully agree with the conclusion arrived at and there is no valid reason for interference. Consequently, the appeal fails and is liable to be dismissed.

Criminal Appeals Nos. 979-80 of 2008

Nasim Ashraf Shaikh Ali Barmare (A-49) v. State of Maharashtra

1335. Ms Farhana Shah, learned counsel appeared for the appellant (A-49) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent.

1336. The aforesaid appeals are directed against the final impugned order and judgment of conviction and sentence dated 25-9-2006 and 17-7-2007 respectively, whereby the appellant (A-49) was found guilty and was sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

1337. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-49). The material part of the said charge is as under:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1338. In addition to the abovesaid principal charge of conspiracy, the appellant (A-49) was also charged on the following counts:

At head secondly, the appellant committed an offence punishable under Section 3(3) TADA by doing the following overt acts:

(a) He participated in weapons' training at Pakistan;

(b) He attended conspiratorial meetings at the residence of Babloo and Mobina where plans for committing terrorist acts were discussed and chalked out;

(c) He participated in the preparation of vehicle bombs at Al-Hussaini Building during the night intervening 11-3-1993 and 12-3-1993;

At head thirdly, the appellant, along with Mohd. Iqbal Mohammed Yusuf Shaikh (A-23), went to Sahar Airport Flyover Bridge on a motorcycle (bearing No. MH 01 C 3910) registered in the name of Ayub Abdul Razak Memon (AA) and lobbed hand grenades at the workers working therein and the aircrafts parked at the airport and thereby committed an offence punishable under Section 3(2)(ii) TADA read with Section 34 IPC.

At head fourthly, by throwing the hand grenades, as mentioned above, with an intention and knowledge to kill the workers, the appellant committed an offence punishable under Section 3(3) TADA.

At head fifthly, by throwing the hand grenades which could have caused death of persons working therein, the appellant committed an offence punishable under Section 307 read with Section 34 IPC.

At head sixthly, by throwing the hand grenades, as mentioned above, with the knowledge that it could cause damage to properties, the appellant committed an offence punishable under Section 435 read with Sections 511 and 34 IPC.

At head seventhly, by throwing the hand grenades with the knowledge and intention that it could cause damage to the public property, the appellant committed an offence punishable under Section 4 of the Prevention of Damage to Public Property Act, 1984 read with Sections 511 and 34 IPC.

At head eighthly, the appellant was an accessory in causing explosion by explosive substances likely to endanger life and property and thereby committed an offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.

Conviction and sentence

1339. The charges mentioned above were proved against the appellant (A-49). The appellant was found guilty on all the aforesaid charges except for charge at head fourthly. The appellant has been convicted and sentenced for the abovesaid charges as under:

1339.1 The appellant has been convicted for the offence of conspiracy under Section 3(3) TADA and Section 120-B IPC read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge firstly)

1339.2 The appellant has been convicted for the offence under Section 3(3) TADA for commission of offences mentioned at head secondly and sentenced to RI for 14 years along with a fine of Rs 75,000, in default, to further undergo RI for 1½ (one-and-a-half) years. (charge secondly)

1339.3 The appellant has also been convicted for the offence under Section 3(2)(ii) TADA and sentenced to RI for 14 years along with a fine of Rs 75,000, in default, to further undergo RI for 1½ (one-and-a-half) years. (charge thirdly)

1339.4 The appellant has also been convicted for the offence under Section 307 read with Section 34 IPC and sentenced to RI for 7 years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge fifthly)

1339.5 The appellant has also been convicted for the offence under Section 435 read with Sections 511 and 34 IPC and sentenced to RI for 3½ (three-and-a-half) years along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge sixthly)

1339.6 The appellant has also been convicted for the offence under Section 4 of the Prevention of Damage to Public Property Act, 1984 read with Sections 511 and 34 IPC and sentenced to RI for 5 years along with a fine of Rs 5000, in default, to further undergo RI for 1 month. (charge seventhly)

1339.7 The appellant has also been convicted for the offence under Sections 3 and 4 of the Explosive Substances Act, 1908 and sentenced to RI for 5 years. (charge eighthly)

1340. The evidence against the appellant (A-49) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimony of prosecution witnesses; and

(iv) documentary evidence.

Confessional statement of the appellant Nasim Ashraf Shaikh Ali Barmare (A-49)

1341. The confessional statement of the appellant (A-49) under Section 15 TADA has been recorded on 16-5-1993 (0930 hrs) and 18-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The following facts emerge from the said confessional statement:

(i) The appellant quit his job as a welder after the riots. Atik asked him if he wanted to work in Dubai and introduced him to Jabir (A-93).

(ii) Jabir arranged for his tickets and visa for Dubai and in the morning of 28-1-1993 dropped him at the airport in a blue Maruti car and handed over the passport and tickets with the instruction that he will get his visa on arrival at Dubai.

(iii) He travelled to Dubai by Emirates flight and came out of the airport after taking his visa and getting clearance. In Dubai, he listened to a tape recorded provoking speech of a maulana regarding riots in Ayodhya, Surat and Bombay which motivated him to take revenge for the same.

(iv) On 8-2-1993/9-2-1993, Ayub dropped the appellant, Niyaz and Feroz at Dubai Airport and told them that they were being sent to Pakistan for training of arms and ammunition and that the said training would be useful at the time of riots and that they will get arms in Bombay.

(v) The appellant and others went to Pakistan by a PIA flight and they came out of the airport without any clearance.

(vi) He was given a new name as “Yusuf” in Pakistan. The appellant and others were given training in use of arms and ammunition.

(vii) Tiger Memon also came to Pakistan during the training. The appellant also got training in preparation of bombs using RDX and exploding the same using aluminium-coloured pencil like detonators and in throwing of hand grenades.

(viii) After the training, he along with others went back to Dubai on 25-2-1993. In Dubai, they took oath of maintaining secrecy regarding the aforesaid training by putting their hands on holy Quran.

(ix) The appellant then returned back to Bombay along with Rafiq, Shahnawaz, Firoz and Abdul.

(x) He attended a meeting on 10-3-1993 in a flat at Bandra, Hill Road, where all the co-accused persons who participated in the training were also present.

(xi) On 11-3-1993, PW 2 took him to the airport flyover and told him that on 12-3-1993, he has to throw hand grenades on the aeroplanes which were parked there. PW 2 carefully explained to him as to from where he has to come and where he has to go.

(xii) PW 2 then took him to Tiger's residence at Al-Hussaini where he saw that about 20-25 boys had gathered there who had also taken training in Pakistan.

(xiii) Tiger Memon then told the appellant and Mohd. Iqbal Mohammed Yusuf Shaikh (A-23) to go to Sahar Airport on 12-3-1993 in the afternoon for throwing hand grenades as instructed by PW 2.

(xiv) The appellant, along with others, went to the garage situated behind Al-Hussaini Building and filled RDX mixed with steel scrap in a Maruti car. He, along with others, also filled another Maruti vehicle and a scooter with bombs made of RDX.

(xv) On 12-3-1993, in the afternoon, PW 2 gave him seven hand grenades, one loaded gun and a small plastic bag containing bullets and directed him to go for the mission.

(xvi) The appellant and A-23 went to Sahar Airport by a red-coloured Yamaha motorcycle. The last number of the motorcycle was 3910. At about 1515 hrs, they parked the motorcycle on the flyover bridge and after observing the situation, the appellant pelted a hand grenade towards an Air India aircraft. However, the hand grenade could not reach the plane and it exploded in mid air.

(xvii) Thereafter, the appellant and A-23 fled away from there and went to Andheri-Kurla Road near the church where they parked the motorcycle and went back to their home.

(xviii) On reaching home, the appellant concealed four hand grenades and a pistol and after one/two days of Eid, he gave the said hand grenades to his friend Asif and the pistol and bullets to his friend Ayub in order to keep the same with them.

1342. A perusal of the confession of the appellant establishes that he played an active role in the entire conspiracy viz. participation in the weapons' training at Pakistan; participation in the conspiratorial meeting at Mobina's residence where plans were chalked out for committing terrorist acts; active participation in filling explosive substances in vehicles for the purpose of causing explosions in various parts of Bombay and lobbing hand grenades at Sahar Airport.

1343. The prosecution highlighted that the appellant (A-49) has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards prescribed under Section 15 TADA and the Rules framed thereunder. The said facts have been duly established by the recording officer PW 193.

Confessional statements of co-accused

1344. Apart from his own confession, the involvement of the appellant (A-49) is further established by the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-49) are summarised hereinbelow:

Confessional statement of Bashir Ahmed Usman Gani Khairulla(A-13)

1345. The confessional statement of A-13 under Section 15 TADA has been recorded on 16-5-1993 (1030 hrs) and 18-5-1993 (1715 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-13 with respect to the appellant is summarised hereinunder:

(i) The appellant was present in the conspiratorial meeting held on 10-3-1993 in a flat on Hill Road, Bandra.

(ii) The appellant was present in the garage when RDX was being loaded in vehicles in the night intervening 11-3-1993/12-3-1993.

(iii) The appellant was present at Tiger's residence at Al-Hussaini Building on 12-3-1993 in the afternoon.

Confessional statement of Mohd. Farooq Mohammed Yusuf Pawale (A-16)

1346. The confessional statement of A-16 under Section 15 TADA has been recorded on 20-5-1993 (1630 hrs) and 22-5-1993 (1645 hrs) by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The confession of A-16 reveals that the appellant attended weapons' training at Pakistan where he was given a fake name “Yusuf”.

Confessional statement of Mohd. Iqbal Mohammed Yusuf Shaikh (A-23)

1347. The confessional statement of A-23 under Section 15 TADA has been recorded on 20-5-1993 (1000 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-23 with respect to the appellant is summarised hereinunder:

(i) The appellant participated in filling of RDX in vehicles at Al-Hussaini Building.

(ii) On 12-3-1993, Javed Chikna and PW 2 distributed hand grenades to A-23 and the appellant at Al-Hussaini Building and, thereafter, Javed Chikna gave the key of a red-coloured Yamaha motorcycle to A-23 and told him to take the appellant to the airport. Javed Chikna also gave a pistol and bullets to the appellant.

(iii) They then went to the flyover bridge near the airport and on reaching there, the appellant asked A-23 to keep the bike engine on start mode and lobbed the hand grenade towards the aircrafts which resulted into a loud explosion. Thereafter, they fled away from there and went to Andheri-Kurla Road where they left the motorcycle near the church and went back to their homes.

Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)

1348. The confessional statement of A-29 under Section 15 TADA has been recorded on 18-5-1993 (1830 hrs) and 21-5-1993 (1445 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant underwent training at Pakistan and he also took oath to commit “Jehad”.

Confessional statement of Zakir Hussain Noor Mohammed Shaikh (A-32)

1349. The confessional statement of A-32 under Section 15 TADA has been recorded on 16-5-1993 (1125 hrs) and 19-5-1993 (1730 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-32 with respect to the appellant is summarised hereinunder:

(i) The appellant attended the conspiratorial meeting at Al-Hussaini Building on 10-3-1993.

(ii) The appellant was present at Al-Hussaini Building on the night of 11-3-1993.

(iii) On 12-3-1993, PW 2 gave hand grenades to him and Javed Chikna asked them to leave for the mission.

Confessional statement of Abdul Akhtar Khan (A-36)

1350. The confessional statement of A-36 under Section 15 TADA has been recorded on 19-5-1993 (1740 hrs) and 21-5-1993 (1820 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-36 with respect to the appellant is summarised hereinunder:

(i) The appellant was present in Pakistan at the time of training and he left on 25-2-1993.

(ii) The appellant was present at Tiger's residence at Al-Hussaini on 11-3-1993. Javed Chikna asked the appellant and A-36 to unload RDX in the garage.

(iii) The appellant was loading RDX into vehicles.

Confessional statement of Feroz alias Akram Amani Malik (A-39)

1351. The confessional statement of A-39 under Section 15 TADA has been recorded on 19-4-1993 (2230 hrs) and 23-4-1993 (2050 hrs) by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. A brief summary of the confession of A-39 with respect to the appellant is summarised hereinunder:

(i) The appellant met A-39 in Dubai where he told him that they have to go to Pakistan to take training in arms.

(ii) The appellant was renamed as “Yusuf” in Pakistan.

(iii) The appellant was present in the meeting at Dubai where all co-trainer boys took oath by swearing on the Quran.

Confessional statement of Salim Rahim Shaikh (A-52)

1352. The confessional statement of A-52 under Section 15 TADA has been recorded on 15-4-1993 and 18-4-1993 by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. The confession of A-52 reveals that the appellant underwent training at Pakistan. In his confessional statement, the appellant has also been referred to as “Yusuf”, the name given to him in Pakistan.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

1353. The confessional statement of A-64 under Section 15 TADA has been recorded on 22-1-1995 and 24-1-1995 by Shri H.C Singh (PW 474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. A brief summary of the confession of A-64 with respect to the appellant is summarised hereinunder:

(i) The appellant was present in Pakistan.

(ii) He attended the meeting on 10-3-1993 at the house of Mobina.

(iii) He was present at Al-Hussaini Building on the night of 11-3-1993.

(iv) He assisted in filling RDX in vehicles.

Confessional statement of Mohd. Rafiq Usman Shaikh (A-94)

1354. The confessional statement of A-94 under Section 15 TADA has been recorded on 14-5-1993 (1830 hrs) and 16-5-1993 by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-94 with respect to the appellant is summarised hereinunder:

(i) The appellant received training in Pakistan.

(ii) He was present in the meeting at Dubai where oath was taken by the trainees by swearing on Quran.

Confessional statement of Niyaz Mohammed alias Islam Iqbal Ahmed Shaikh (A-98)

1355. The confessional statement of A-98 under Section 15 TADA has been recorded on 17-5-1993 (1430 hrs) and 20-5-1993 (1130 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-98 with respect to the appellant is summarised hereinunder:

(i) The appellant was already present in Dubai when A-98 reached there.

(ii) The appellant, along with A-39 and A-98, went to Islamabad by a PIA flight.

(iii) The appellant was renamed as “Yusuf” in Pakistan.

(iv) He left the training camp in Pakistan on 25-2-1993 and went to Islamabad.

(v) He was present at a house in Bandra where the meeting took place among the conspirators on 8-3-1993/9-3-1993.

Confessional statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100)

1356. The confessional statement of A-100 under Section 15 TADA has been recorded on 15-4-1993 (2330 hrs) and 17-4-1993 (1700 hrs) by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The confession of A-100 reveals that he met the appellant in Pakistan at the time of training and he left the training camp on 25-2-1993.

1357. A perusal of the confessional statements of all the above accused viz. A-13, A-16, A-23, A-29, A-32, A-36, A-39, A-52, A-64, A-94, A-98 and A-100 clearly establishes the fact that it corroborates with each other and also with the confessional statement of the appellant (A-49). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is clearly established inasmuch as:

(i) He went to Pakistan and underwent training in arms and ammunition and explosives;

(ii) After completion of the aforesaid training, he took oath of maintaining secrecy and committing “Jehad” along with the other co-accused in Dubai;

(iii) He participated in the conspiratorial meeting held at the residence of Mobina (A-96) where plans for executing the blasts were discussed;

(iv) He actively participated in filling of explosives in vehicles in the night intervening 11-3-1993/12-3-1993; and

(v) He went along with A-23 from Al-Hussaini Building on a red-coloured Yamaha motorcycle driven by A-23 to Sahar Airport flyover bridge and pelted hand grenade at the aircraft, and thereafter, fled away and went to Andheri-Kurla Road where they left the motorcycle near a church.

Deposition of prosecution witnesses

1358. Apart from the aforesaid evidence, the involvement and role of the appellant in the conspiracy, as stated above, is also revealed by the deposition of the following prosecution witnesses:

Deposition of Mohd. Usman Jan Khan (PW 2) (approver)

1359. The deposition of PW 2 (approver) reveals that:

(i) He knows the appellant and identified him in the court.

(ii) The appellant was introduced to PW 2 using a fake name — “Yusuf” at the training camp in Pakistan.

(iii) On completion of the aforesaid training and after returning to Dubai, PW 2, along with the appellant and others, took oath of maintaining secrecy by swearing on Quran.

(iv) The appellant attended the meetings at Shakil's residence on 7-3-1993 and 10-3-1993.

(v) The appellant was present in the garage at Al-Hussaini Building on the night of 11-3-1993 and filled RDX in vehicles.

(vi) Javed Chikna told the appellant to remove AK-56 rifles and hand grenades from the gunny bag kept in the said Maruti van to Tiger's flat on the fifth floor.

(vii) On 12-3-1993, Javed Chikna gave 4 hand grenades each to the appellant and A-23 and told them to go to Sahar Airport in order to throw the same.

The above deposition of the approver duly corroborates with the confessional statement of the appellant as well as with the confessions made by co-accused persons that the appellant participated in the weapons' training at Pakistan and after completion of the said training, took oath of maintaining secrecy and committing “Jehad” along with other co-accused. It further corroborates with the fact that the appellant participated in the conspiratorial meetings and went along with A-23 to Sahar Airport in order to throw hand grenades.

Deposition of Guruprasad Shrikrishna (PW 7)

1360. PW 7, an eyewitness to the explosion at Sahar Airport reveals the following:

(i) He was working as a painter in Bombay. On 12-3-1993, he was painting the parapet wall of Sahar Airport flyover bridge.

(ii) Around 3 p.m to 3.30 p.m, he heard a screeching sound on the flyover bridge as if somebody had applied sudden brakes. He saw two persons on a red motorcycle which stopped on the bridge. They went towards the parapet wall and came back to the motorcycle. The person sitting on the pillion seat again went towards the wall, took out a round object from his pocket and threw it towards the aeroplane which resulted in a big explosion. Then they went away from there on the motorcycle and PW 7 saw the number of motorcycle as 3910.

(iii) He identified the red motorcycle at MIDC Police Station.

(iv) He identified the appellant in the test identification parade (“TIP”) dated 9-4-1993 conducted by PW 462.

(v) He also identified the appellant in the TIP dated 12-5-1993 conducted by PW 469.

Deposition of Subhash Triveni Harijan (PW 14)

1361. PW 14, who was also an eyewitness to the incident, deposed on 8-11-1995, which reveals the following:

(i) At the relevant time i.e in March 1993, he was employed as a painter. He knew PW 7 as he worked along with him. On 12-3-1993, he along with PW 7 and others was working on the eastern flyover bridge.

(ii) Around 3 p.m, he heard a screeching sound on the flyover bridge as if somebody had applied sudden brakes. He saw two persons on a red motorcycle which stopped on the bridge. The person sitting on the pillion seat went towards the parapet wall and then took out a round object from his pocket and threw it towards the aeroplane which resulted in a big explosion. Then they went away from there on the motorcycle and PW 14 noticed the number of the motorcycle as 3910.

(iii) He left for his native village on the same day as he got scared after seeing the explosion. He came back after 15-20 days and went to Sahar Police Station.

(iv) He identified the appellant in court. He identified A-23 also in court.

(v) He identified the red motorcycle at MIDC Police Station.

(vi) He identified the appellant in the TIP conducted by PW 469 on 12-5-1993.

Deposition of Vasant Laxman Jadhav (PW 484)

1362. PW 484, in his deposition dated 22-6-1999 reveals as under:

(i) PW 484 had worked in the Ministry of Civil Aviation and was the then in-charge of the Bomb Detection and Disposal Squad. He is an expert in explosive substances.

(ii) On 12-3-1993, he had inspected the site of the explosion at Bay 54 and collected the samples of steel balls from the site.

(iii) He, thereafter, forwarded the said steel balls and soil collected from the blast site to the Forensic Science Laboratory (“FSL”). FSL report dated 19-3-1993 confirmed traces of nitrite.

(iv) The delay in sending the samples to FSL (collected on 12-3-1993 and sent to FSL on 15-3-1993) was because his squad was very busy with investigating bomb explosions across Bombay.

Deposition of Siddique Babubhai Shaikh (PW 315)

1363. The deposition of PW 315, who was the API at Sahar Airport Police Station in 1993 dated 20-4-1998 reveals as under:

(i) On 12-3-1993, at 1645 hrs, he received a call from the Senior Airport Manager regarding the said explosion pursuant to which, he rushed to the spot at Bay 54.

(ii) He then made a spot panchnama in the presence of panch witnesses which is marked as Ext. 1196.

(iii) After returning to Sahar Airport Police Station from the spot of explosion, he duly made an entry in the station diary about the events that took place therein.

(iv) On 29-3-1993, after receipt of the CA report in respect of iron balls collected by PW 484 from the blast site, he went through the same and ascertained that the said iron balls were the part of the hand grenade, and thereafter, he lodged the FIR which is marked as Exts. 1197 and 1197(a).

Deposition of Rajaram Bhikaji Dhadave (PW 301)

1364. At the relevant time, PW 301 was the watchman of St. John's School, Marol, Andheri. In his deposition dated 23-3-1998, he reveals as under:

(i) On 13-3-1993, he saw an abandoned red Yamaha motorcycle by the side of the church in the school premises.

(ii) On 16-3-1993, the Principal of the school informed the police about the said motorcycle. The police took charge of the said motorcycle on 16-3-1993.

Deposition of Hemant Motiram Mankar (PW 599)

1365. PW 599, who was the PSI attached with MIDC Police Station in 1993, in his deposition dated 8-3-2000 reveals as under:

(i) On 16-3-1993, he got a call from Shri Kuria, Principal of St. John's School, Marol, Andheri, regarding an abandoned motorcycle near the church within the school premises. He then deputed two constables who brought the said red motorcycle bearing Registration No. MH 01 C 3910 to the police station.

(ii) He, thereafter, spoke to RTO, Tardeo about the above motorcycle and also registered the motorcycle in muddemal register.

(iii) He identified the aforesaid motorcycle in court.

Deposition of Manohar Uttamrao Dalvi (PW 504)

1366. The deposition of PW 504 dated 9-9-1999 reveals that:

(i) He was a Police Inspector at Sahar Airport Police Station in 1993;

(ii) On 29-3-1993, PW 315 lodged an FIR with Sahar Airport Police Station which was recorded by API Hasabnis and, subsequently, the investigation of the said crime was entrusted to PW 504;

(iii) On 1-4-1993, he recorded the statements of eyewitnesses, namely, PW 7 and PW 14 and got to know about the motorcycle bearing Registration No. MH 01 C 3910 which was used by the appellant;

(iv) On 4-4-1993, PW 504 wrote a letter to the RTO, Tardeo, for further information about the aforesaid motorcycle. The said letter is marked as Ext. 1750. On 5-4-1993, he also informed the nearby police stations to be on the lookout for the aforesaid motorcycle;

(v) PW 504 received telephonic information from MIDC Police Station that one unclaimed motorcycle was found near Church High School;

(vi) He then took PWs 7 and 14 to MIDC Police Station on 6-4-1993, where they identified the said motorcycle;

(vii) On 16-4-1993, he was informed by Mahim Police Station that the appellant had been arrested in connection with another case;

(viii) On 11-5-1993, PW 504 obtained the custody of the appellant and arrested him;

(ix) He decided to conduct an identification parade for the appellant and A-23 and for the said purpose, he wrote a request letter dated 11-5-1993 to PW 469. Accordingly, a TIP was conducted by PW 469 on 12-5-1993;

(x) When the appellant expressed his desire to make a voluntary confession, PW 504 wrote a letter dated 15-5-1993 to Shri Krishan Lal Bishnoi (PW 193) requesting him to record the confession of the appellant;

(xi) On 16-5-1993, the appellant was produced before PW 193 for recording his confession.

It is pertinent to mention here that pursuant to recording of the statements of eyewitnesses viz. PW 7 and PW 14, when PW 504 got to know about the red Yamaha motorcycle bearing Registration No. MH 01 C 3910 which was used by the appellant, he had written a letter on 4-4-1993 to RTO, Tardeo, for further information about the said vehicle. In response to the above letter, Bhargavram Bhalchandra Phalke (PW 314), the then Deputy Transport Commissioner, RTO, Tardeo, sent a letter dated 3-5-1993 which shows the registration of the said motorcycle in the name of Ayub Abdul Razak Memon (AA), brother of Tiger Memon. The above fact is also clearly evident from para 5 of the deposition of PW 314.

Deposition of Vasant Ganpat Kamble (PW 462)

1367. The deposition of PW 462 dated 7-12-1998 reveals that:

(i) He was the Special Executive Magistrate who had conducted the TIP on 9-4-1993. He had received a memo from Worli Police Station on 8-4-1993 for conducting the aforesaid TIP.

(ii) He got the panch witnesses on 9-4-1993 for the aforesaid TIP.

(iii) He remembered the appellant as Barmare as one of the accused on 9-4-1993.

(iv) He remembered the names of the identifying witnesses; one of them was PW 7.

(v) PW 7 identified the appellant as the person who was sitting on the rear side of the motorcycle that had stopped at Sahar Airport Flyover Bridge and the one who then threw a hand grenade towards the aircraft.

(vi) He prepared the memorandum panchnama, Ext. 1479.

Deposition of Ashok Sakharam Budhavale (PW 614)

1368. At the relevant time i.e in the year 1993, PW 614 was the API at Worli Police Station. In his deposition dated 28-3-2000, he reveals as under:

(i) On 9-4-1993, he was told that the TIP in respect of the appellant was to be conducted at around 2.00 p.m at Sacred Heart School by PW 462.

(ii) Accordingly, PW 462 conducted the TIP while PW 614 went outside the school and after two hours (around 4.30 p.m) a memorandum of parade drawn by PW 462 was given to PW 614.

(iii) He does not remember making an entry into the station diary for taking the appellant for TIP on 9-4-1993. PW 614 took the appellant without any other officer for TIP but he went along with three constables whose names he does not remember.

Deposition of Moreshwar Gopal Thakur (PW 469)

1369. The deposition of PW 469 dated 1-2-1999 reveals as under:

(i) He was the SEM who conducted the TIP on 12-5-1993 in respect of the appellant. A constable from Sahar Police Station came to him on 11-5-1993 on the instructions of Dalvi (PW 504) and gave him a request letter for conducting the said TIP and he agreed to conduct the TIP on 12-5-1993.

(ii) He asked Dalvi (PW 504) to bring two panch witnesses and ten dummies.

(iii) PW 504 went out of the parade room prior to the commencement of the TIP. Both the accused declined to change their clothes prior to the TIP.

(iv) Three witnesses identified both the suspects at the TIP.

(v) PW 469, thereafter, handed over the custody of the accused to PW 504 and prepared a memorandum panchnama (marked as “X-550”), which was signed by two panchas.

(vi) PW 469 does not remember the names of the accused persons, panchas or the three witnesses.

(vii) Memorandum panchnama (Ext. 1506) was prepared by PW 469.

The above depositions of PW 462 and PW 469 clearly prove that the TIP dated 9-4-1993 and 12-5-1993 were duly and properly conducted by them and also prove that the appellant was duly identified by PW 7 and PW 14 as the person who was sitting on the rear side of the motorcycle that had stopped on the Sahar Airport flyover bridge on 12-3-1993 and the one who then threw a hand grenade towards the aircraft. Further, no discrepancy has been brought out in their cross-examinations.

Deposition of R.A Sawant (PW 584)

1370. The deposition of PW 584 proves the departure of the appellant to Dubai on 28-1-1993 from Bombay. The relevant endorsements on the embarkation card (“X-661”) concerning the departure which was duly stamped by him have been marked as Exts. 2016 and 2017 (Box 21).

Deposition of S.K Borse (PW 217)

1371. The arrival of the appellant to Bombay on 2-3-1993 from Dubai has been proved by PW 217. The relevant endorsements on the disembarkation card (“X-319”) concerning the arrival have been marked as Exts. 970 and 970-A colly.

1372. A perusal of the aforesaid depositions establish that on 12-3-1993, they were present at the Sahar Airport flyover bridge when the said explosion took place and that they both came on a red motorcycle and the appellant threw a round object towards the aeroplane which resulted in a big explosion. It is further proved that PW 14 duly identified both the persons on the motorcycle i.e the appellant and A-23 in court. Further, PW 7 and PW 14 duly identified the appellant and A-23 during the test identification parade.

1373. Ms Farhana Shah, learned counsel for the appellant contended that para 19 of the deposition of PW 7 reveals that two persons identified by him in the TIP were dissimilar in their appearance and that the Criminal Manual requires that in an identification parade, the accused should be placed with his dummies similar to his appearance. With respect to this contention, it is submitted that the deposition of PW 469, the Special Executive Magistrate who conducted the said TIP, does not reveal any material extracted during the cross-examination or otherwise for coming to the conclusion that the dummies selected were of dissimilar appearance. A careful perusal of the evidence of PW 469 and the memorandum, Ext. 1506, in fact, reveals that two suspects were put for the parade along with about 10 dummies. The reference to the memorandum also reveals that PW 469 had selected 10 persons of similar appearances with the suspects out of 25 dummies brought by the police. Further, para 26 of his deposition reveals that though his evidence is silent regarding the selection of the dummies, he had asked the police to send 10 dummies and two panchas to the parade room. Thus, in view of this, it is proved that the prosecution has adduced sufficient evidence regarding the dummies selected being of similar appearance with the suspects put in the parade.

1374. In the light of the above evidence, it is established that the appellant had thrown hand grenade towards the aircraft thereby causing explosion and consequent damage. The appellant was completely aware of his acts and he had full knowledge that the act committed by him at Sahar Airport Flyover Bridge was likely to result in the death of persons present in the aircraft.

Sentence

1375. The appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 26-9-2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:

(i) He has been in custody since his arrest in April 1993;

(ii) His children and family members are dependent on him;

(iii) His mother has been ill since 2000; and

(iv) He is innocent. He has also expressed an apology.

1376. In our considered view, the appellant was a coveted member of the conspiracy and was indulged in the acts furthering the object of the conspiracy. It is proved beyond doubt that the appellant was in the conspiracy until the final date of achievement of the object of conspiracy. There is no valid ground for interference in the conviction and sentence. Consequently, the appeals fail and are liable to be dismissed.

Criminal Appeal No. 633 of 2008

Bashir Ahmed Usman Gani Khairulla (A-13) v. State of Maharashtra

1377. Mr Aabad Ponda, learned counsel for the appellant (A-13) and Mr Mukul Gupta, learned Senior Counsel duly assisted by Mr Satyakam, learned counsel for the respondent (CBI).

1378. The instant appeal is directed against the final judgment and order of conviction and sentence dated 4-12-2006 and 20-7-2007 respectively whereby the appellant (A-13) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1 of 1993.

Charges

1379. A common charge of conspiracy was framed against all the co-conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:

“During the period from December 1992 to April 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UAE) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people i.e Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or firearms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle firearms, ammunition, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose of the same as need arises. To organise training camps in Pakistan and in India to import and undergo weapons' training in handling of arms, ammunition and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance, financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12-3-1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, petrol pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand grenades at Macchimar Hindu Colony, Mahim and at Bay 52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B IPC read with Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Penal Code and offences under Sections 3 and 7 read with Sections 25(1-A), 25(1-B)(a) of the Arms Act, 1959, Sections 9-B(1)(a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.”

1380. In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts:

At head secondly, the appellant committed an offence punishable under Section 3(3) TADA by committing the following overt acts:

(a) He received training in handling of arms, ammunition and explosives at Borghat and Andheri;

(b) He attended conspiratorial meetings at the residence of Babloo alias Nazir Ahmed Anwar Shaikh and Mobina alias Baya Musa Biwandiwala (A-96) where plans for committing terrorist acts were discussed and chalked out;

(c) He participated in filling of explosives in various vehicles like RDX fitted with time device detonators during preparation of vehicle bombs in the intervening night of 11-3-1993/12-3-1993.

At head thirdly, the appellant, along with other co-accused persons, in pursuance of the aforesaid criminal conspiracy and being a member of the unlawful assembly, went to Fisherman Colony, Mahim on 12-3-1993 at about 1.45 p.m in a Maruti van being No. MP 13 D 0385 and lobbed hand grenades on the hutments causing death of 3 persons, injuring 6 persons and causing loss of property worth Rs 50,000 and thereby committed an offence punishable under Section 3(3) TADA read with Section 149 IPC.

At head fourthly, the appellant, by doing the aforesaid act, committed an offence punishable under Section 148 IPC.

At head fifthly, the appellant, by doing the aforesaid act, which resulted into death of 3 persons, committed an offence punishable under Section 302 read with Section 149 IPC.

At head sixthly, the appellant, by doing the aforesaid act which resulted into injuries to 6 persons, committed an offence punishable under Section 307 read with Section 149 IPC.

At head seventhly, the appellant, by doing the aforesaid act which resulted into death of 3 persons, injuries to 6 others and loss of property worth Rs 50,000 committed an offence punishable under Section 324 read with Section 149 IPC.

At head eighthly, the appellant, by doing the aforesaid act which resulted into loss of property worth Rs 50,000 committed an offence punishable under Section 436 read with Section 149 IPC.

Conviction and sentence

1381. The charges mentioned above were proved against the appellant (A-13). The appellant has been convicted and sentenced for the abovesaid charges as under:

1381.1 The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for 6 months. (charge firstly)

1381.2 The appellant has also been convicted under Section 3(3) TADA and has been sentenced to RI for 14 years along with a fine of Rs 75,000, in default, to further undergo RI for 1½ (one-and-a-half) years. (charge secondly)

1381.3 The appellant has also been convicted under Section 3(3) TADA and has been sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for a period of 6 months. (charge thirdly)

1381.4 The appellant has also been convicted under Section 148 IPC and has been sentenced to RI for 3 years along with a fine of Rs 25,000, in default, to further undergo RI for a period of 6 months. (charge fourthly)

1381.5 The appellant has also been convicted under Section 302 read with Section 149 IPC and has been sentenced to RI for life along with a fine of Rs 25,000, in default, to further undergo RI for a period of 6 months. (charge fifthly)

1381.6 The appellant has also been convicted under Section 307 read with Section 149 IPC and has been sentenced to RI for 10 years along with a fine of Rs 50,000, in default, to further undergo RI for a period of 1 year. (charge sixthly)

1381.7 The appellant has also been convicted under Section 324 read with Section 149 IPC and has been sentenced to RI for 3 years. (charge seventhly)

1381.8 The appellant has also been convicted under Section 436 read with Section 149 IPC and has been sentenced to RI for 10 years along with a fine of Rs 25,000, in default, to further undergo RI for a period of 6 months. (charge eighthly)

Evidence

1382. The evidence against the appellant (A-13) is in the form of:

(i) his own confession;

(ii) confessions made by other co-conspirators (co-accused);

(iii) testimony of prosecution witnesses; and

(iv) documentary evidence.

Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)

1383. The involvement of A-13 in the conspiracy is evident from his own confession under Section 15 TADA recorded on 16-5-1993 (1030 hrs) and 18-5-1993 (1715 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. His confession reveals as under:

(i) At the relevant time, he was aged about 21 years, residing at Mahim and was an electrician. He studied up to class IX.

(ii) He knows Javed Chikna (AA) who was residing next to his house for the last three years.

(iii) On 7-3-1993/8-3-1993, the appellant met Javed Chikna who told him that Hindus have bothered Muslims in riots so they will combat “Jehad” against Hindus and for this they will impart him training to fire rounds of pistols and lobbying of bombs. Javed Chikna also told the appellant that for this they have to go out of India and asked him to be ready for travel.

(iv) On the very same day i.e 7-3-1993/8-3-1993, Javed Chikna came to the residence of the appellant on a scooter at 9 o'clock and told him that he has to go along with PW 2 for some work. The appellant accompanied Usman (PW 2) on his scooter who took him to a building at Hill Road at the back side of Bhabha Hospital, wherefrom, they went to a flat on the seventh floor where Tiger Memon and the other co-accused were also present. The appellant knew all of them as they were friends of Javed Chikna.

(v) The appellant along with other co-accused took oath in the name of “Quran” that they will do “Jehad” and will not disclose anything to others.

(vi) Thereafter, Tiger Memon asked the appellant, Mohammad, Iqbal and Moin to go to Bandra Masjid in order to offer namaz and informed that from there his men will take them for the next job.

(vii) As per the instructions, Abdul Gani Ismail Turk (A-11) came to Bandra Masjid in a jeep and picked them up.

(viii) On reaching the Hill, the appellant was asked by A-11 to clean the gun and he did the same.

(ix) The appellant along with the others took training in throwing of hand grenades and firing of guns.

(x) When the appellant got scared, Tiger got angry with him and asked him to do practice by throwing stones which he did.

(xi) After the training, they came back to Bombay. The appellant was dropped by Gani at Mahim Dargah by the side of Bharat Motor Training School.

(xiii) On the night intervening 11-3-1993/12-3-1993, the appellant went to the house of Tiger Memon. Thereafter, he along with others went to the garage where he noticed 10-12 gunny bags and boxes filled with black chemical. He also saw the co-accused persons loading articles in jeep. He also informed that “Tiger Memon admired ‘our’ work” and then left at around 3.30 a.m

(xiv) On 12-3-1993, at 12.45 p.m, he went to Al-Hussaini Building along with Zakir who came to pick him up.

(xv) On 12-3-1993, the appellant was given Rs 5000 by Javed Chikna and he told him to accompany Salim, Zakir, Mehmood, Moin and Abdul Akhtar in order to throw bombs at Mahim Causeway.

(xvi) He went to Mahim along with the other co-accused in a dark blue Maruti van with registration number of Madhya Pradesh and on the way, they took Firoz and went towards the basti.

(xvii) On reaching there, the appellant, Zakir, Abdul, Akhtar, Mahmood, Moin and Firoz got down and hurled bombs. The appellant could not open his bomb and put it back in the bag. He could not get into the escaping car and thus he ran away and got into a bus to Bhendi Bazaar.

1384. On perusal of the above confession of the appellant the following facts emerge:

(i) The appellant knowingly and consciously committed the following overt acts viz. he agreed to take revenge against Hindus and also took oath to do “Jehad” and keep the identity of the other co-accused undisclosed;

(ii) He took training in handling arms and throwing hand grenades at Andheri;

(iii) He attended conspiratorial meetings on 7-3-1993 and 10-3-1993;

(iv) He practised by throwing stones in order to gain perfection in throwing of bombs;

(v) He filled black chemical which fact is clearly established from his own confession that “Tiger Memon complemented us for ‘our’ work” and he went to Mahim Causeway and made every possible effort to lob hand grenades at the basti.

1385. Apart from the above facts, on perusal of his entire confession we are also satisfied that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 TADA and the Rules framed thereunder. The recording officer has proved that the confession was given voluntarily and without any force, coercion or allurement.

Confessional statements of co-accused

1386. The prosecution pointed out that the involvement of the appellant in committing overt acts, as stated above, is further revealed in the confessional statements of the other co-accused persons which are summarised as under:

Confessional statement of Abdul Gani Ismail Turk (A-11)

1387. The confessional statement of A-11 under Section 15 TADA has been recorded on 15-4-1993 (2235 hrs) and 18-4-1993 (0115 hrs) by Shri Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. The confession of A-11 corroborates with the confessional statement of the appellant that he was present at Bandra Masjid from where he was picked up and went to a hill where they took training in throwing of bombs.

Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

1388. The confessional statement of A-12 under Section 15 TADA has been recorded on 18-4-1993 (1400 hrs) and 21-4-1993 (0650 hrs) by Shri Prem Krishna Jain (PW 189), the then DCP, Zone-X, Bombay. The confession of A-12 corroborates with the confession of the appellant that he was present inside the garage at the time when black chemical was being loaded in the vehicles.

Confessional statement of Mohd. Iqbal Mohammed Yusuf Shaikh (A-23)

1389. The confessional statement of A-23 under Section 15 TADA has been recorded on 20-5-1993 (1000 hrs) and 22-5-1993 (1000 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-23 with reference to the appellant is summarised hereunder:

(i) The appellant attended conspiratorial meeting in a flat behind Bhabha Hospital.

(ii) The appellant, along with others, took oath by placing their hands on Quran that they will do Jehad in order to take revenge.

(iii) The appellant, along with the other co-accused, went to Bandra as instructed by Tiger, from where, they were picked up and went to a hill and were imparted training in throwing of bombs and practice in firing.

(iv) The appellant attended meeting at a flat in Bandra where Tiger Memon gave Rs 5000 to each of them.

(v) The appellant was present at Al-Hussaini Building on 12-3-1993.

Confessional statement of Zakir Hussain Noor Mohammed Shaikh (A-32)

1390. The confessional statement of A-32 under Section 15 TADA has been recorded on 16-5-1993 (1125 hrs) and 19-5-1993 (1730 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-32 reveals the following facts:

(i) The appellant attended conspiratorial meeting on 10-3-1993 in a flat at Mahim and he was in one group along with Salim, Feroz, Moin and Iqbal.

(ii) The appellant went to Al-Hussaini Building on 12-3-1993 around 12.45 p.m along with Zakir who came to pick him up.

(iii) The appellant along with other co-accused received Rs 5000 from Javed Chikna.

(iv) The appellant, along with the other co-accused, went in a blue-coloured Maruti car loaded with hand grenades and they also picked up Feroz on the way to Dargah.

(v) At Mahim, all of them got down except Salim and threw hand grenades.

(vi) The appellant was left behind i.e he could not get into the escaping car.

Confessional statement of Abdul Akhtar Khan (A-36)

1391. The confessional statement of A-36 under Section 15 TADA has been recorded on 19-5-1993 (1740 hrs) and 21-5-1993 (1820 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-36 corroborates with the confessional statement of the appellant that he along with other co-accused went to Macchimar Colony at Mahim in a blue-coloured Maruti van and all of them got down and lobbed hand grenades and during escape the appellant was left behind.

Confessional statement of Feroz alias Akram Amani Malik (A-39)

1392. The confessional statement of A-39 under Section 15 TADA has been recorded on 19-4-1993 (2230 hrs) and 23-4-1993 (2050 hrs) by Shri P.D Pawar (PW 185), the then DCP, Zone V, Bombay. The said confession reveals the following facts qua the appellant:

(i) On 7-3-1993, in the evening, the appellant and PW 2 came to the house of A-39 and took him to a building where a meeting was held.

(ii) The appellant along with other co-accused went to Macchimar Colony in a grey-coloured Maruti van and all of them except Salim got down and lobbed hand grenades and after lobbing, he (A-13) was left behind.

Confessional statement of Nasir Abdul Kader Kewal alias Nasir Dakhla (A-64)

1393. The confessional statement of A-64 under Section 15 TADA has been recorded on 22-1-1995 and 24-1-1995 by Shri H.C Singh (PW 474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The confession of A-64 corroborates with the confession of the appellant and it reveals that the appellant was present in the flat at Al-Hussaini Building on the night intervening 11-3-1993/12-3-1993.

Confessional statement of Salim Rahim Shaikh (A-52)

1394. The confessional statement of A-52 under Section 15 TADA has been recorded on 15-4-1993 and 18-4-1993 by Mr P.D Pawar (PW 185), the then DCP, Zone V, Bombay. The confession of A-52 corroborates with the confession of the appellant. The said confession reveals that the appellant attended conspiratorial meeting at the residence of Babloo when Tiger Memon assigned the appellant to the group of A-32, A-43 and other co-accused and the appellant was present at Al-Hussaini Building in the night intervening 11-3-1993/12-3-1993.

Confessional statement of Shaikh Ali Shaikh Umar (A-57)

1395. The confessional statement of A-57 under Section 15 TADA has been recorded on 19-4-1993 (1200 hrs) by Shri Krishan Lal Bishnoi (PW 193), the then DCP, Zone III, Bombay. The confession of A-57 corroborates with the confession of the appellant. The said confession reveals that the appellant was a friend of Javed Chikna.

Confessional statement of Mohd. Parvez Zulfikar Qureshi (A-100)

1396. The confessional statement of A-100 under Section 15 TADA has been recorded on 15-4-1993 (2330 hrs) and 17-4-1993 (1700 hrs) by Shri Sanjay Pandey (PW 492), the then DCP, Zone VIII, Bombay. The said confession reveals the following about the appellant:

(i) He was present at Al-Hussaini Building in the night intervening 11-3-1993/12-3-1993.

(ii) He was present along with others in the Maruti car driven by Salim.

1397. A perusal of the confessional statements of all the above accused viz. A-11, A-12, A-23, A-32, A-36, A-39, A-64, A-52, A-57 and A-100 clearly establish that the appellant committed the following overt acts:

(i) He was a friend of notorious goon “Javed Chikna” who was a close associate of Tiger Memon;

(ii) He attended both the conspiratorial meetings;

(iii) He took oath to take revenge against Hindus and not to disclose anything to anyone;

(iv) He received training in throwing of bombs and use of arms;

(v) He was present at Al-Hussaini Building in the night intervening 11-3-1993/12-3-1993 and participated in filling of RDX in vehicles;

(vi) He received Rs 5000 from Tiger Memon and Javed Chikna;

(vii) He along with other co-accused travelled in a blue-coloured Maruti van to Fisherman Colony, Mahim where they lobbed hand grenades.

1398. It is contended by Mr Aabad Ponda on behalf of the appellant that since he has subsequently retracted his confession on 12-1-1994, the same should not be relied upon. It is further contended that the co-accused have also subsequently retracted and, hence, it would not be safe to base conviction on the said confessions. This aspect has been elaborately considered and rejected in the earlier appeals, we are not once again assessing the same.

Deposition of prosecution witnesses

1399. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy as stated above is disclosed by the deposition of various prosecution witnesses which are as under:

Deposition of Mohd. Usman Jan Khan (PW 2)

1400. The relevant material in PW 2's evidence is as follows: