Yakub Abdul Razak Memon Vs State of Maharashtra Th:cbi Mumbai

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APPEALS RELATING TO DEATH SENTENCE

PART-1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1728 of 2007

Yakub Abdul Razak Memon .... Appellant(s)

vs.

The State of Maharashtra, through CBI , Bombay …. Respondent(s)

WITH

Criminal Appeal No. 609-610 of 2008

WITH

Criminal Appeal No. 628-629 of 2008

WITH

Criminal Appeal No. 637-638 of 2008

WITH

Criminal Appeal No. 365 of 2008

WITH

Criminal Appeal No. 864-865 of 2008

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WITH

Criminal Appeal No. 897 of 2008

WITH

Criminal Appeal No. 941-942 of 2008

AND

Death Reference Case No. 1 of 2011

********

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1728 OF 2007

Yakub Abdul Razak Memon .... Appellant (s)

Versus

State of Maharashtra thr., CBI, Bombay .... Respondent(s)

With Batch

J U D G M E N T

P. Sathasivam, J.

1) 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 Terrorist and

Disruptive Activities (Prevention) Act, 1987 (in short ‘the

TADA’) for Bombay Bomb Blast Case, Greater Bombay in

BBC No. 1 of 1993. These appeals have been filed under

Section 19 of the TADA by the accused against their

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conviction and sentence and by the CBI for confirmation of

the death sentence and against the acquittal of some of the

accused persons.

2) Brief facts:

The case of the prosecution is as follows:

(a) Babri Masjid at Ayodhya was demolished on

06.12.1992. After its demolition, violence broke out

throughout the country. In order to take revenge of 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

ammunitions from abroad. Tiger Memon, in association with

his men, particularly, the accused persons, received those

arms and ammunitions through sea-coasts 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 ammunitions.

(b) On 12.03.1993, the commercial hub of the country, the

city of Bombay, witnessed an unprecedented terrorist act

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sending shock waves throughout the world. In a span of

about two hours i.e., between 13:33 to 15:40 hours, a series

of 12 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, Air Port Bay-54

and Air Port 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 the World

War II.

(c) 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

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and mental damage but also left a psychological impact on

society as a whole as the lives of several citizens were

completely destroyed.

(d) The conspiratorial acts leading to one of the aforesaid

object began on or before 06.01.1993 at a meeting in Hotel

Persian Darbar, Panvel, wherein the following accused

persons, viz., Md. Ahmed Dosa (AA), Md. Salim Mira Moiddin

Shaikh @ Salim Kutta (A-134), Md. Kasam Lajpuria (A-136),

Ranjitkumar Singh Baleshwar Prasad (A-102) and Md. Sultan

Sayyed (A-90) met and organized the landing of fire arms

and ammunitions and hand grenades which was to take

place on the coast of Dighi Jetty in Raigad District of State of

Maharashtra on 09.01.1993. On the said date, Md. Dossa

(AA) smuggled and sent a consignment of arms and

ammunitions at Dighi Jetty, Raigad in connivance with Md.

Sultan Sayeed (A-90), who received illegal gratification for

the same. 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

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Pandurang Gambas (A-81), Jaywant Keshav Gurav (A-82),

Krishna Sadanand Mokal (A-83), Krishna Tukaram Pingle (A-

84), Manohar Mahadeo More (A-87), Md. Sultan Sayyed (A-

90), Pandharinath Madhukar Mahadik (A-99), Ramesh

Dattatray Mali (A-101), Ranjitkumar Singh Baleshwar Prasad

(A-102), Sayed @ 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), Md. Salim Mira Moiddin

Shaikh @ Salim Kutta (A-134) and Md. Kasam Lajpuria (A-

136). The said meeting dated 06.01.1993 was not a sudden

meeting but was pre-arranged and pre-planned.

(e) On 19.01.1993, another meeting was held at Dubai

wherein Dawood @ Dawood Taklya Mohammed Phanse @

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 ammunitions and explosives which were

to be sent to India by sea route for the purpose of

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committing the aforesaid terrorist act. Pursuant to the

above, between 02-08.02.1993, two more such landings of

arms and ammunitions, 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 @ Dadabhai (A-17)

(deceased) and Rahim Abbas Karambelkar @ Rahim

Laundrywala. In the said landing, the following persons also

played an active role, namely, Md. Shoaib Mohammed

Kasam Ghansar (A-9), Asgar Yusuf Mukadam (A-10), Abdul

Gani Ismail Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12),

Dawood @ Dawood Taklya Mohammed Phanse @

Phanasmiyan (A-14), Imtiyaz Yunusmiya Ghavte (A-15), Md.

Farooq Mohammed Yusuf Pawale (A-16), Sharif Abdul Gafoor

Parkar @ Dadabhai (A-17), Suleman Mohammed Kasam

Ghavate (A-18), Yeshwant Nago Bhoinkar (A-19), Munna @

Mohammed Ali Khan @ Manojkumar Bhavarlal Gupta (A-24),

Muzammil Umar Kadri (A-25), Raju Laxmichand Jain @ Raju

Kodi (A-26), Rashid Umar Alware (A-27), Sayyed Abdul

Rehman Shaikh (A-28), Shahnawaz Abdul Kadar Qureshi (A-

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29), Abdul Aziz Haji Gharatkar (A-34), Ashfaq Kasim Havaldar

(A-38), Khalil Ahmed Sayed Ali Nasir (A-42), Mohammed

Rafiq @ 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 @ Iqbal

Abdul Hakim Nazir (A-61), Tulsiram Dhondu Surve (A-62),

Abu Asim Azmi (A-63), Nasir Abdul Kader Kewal @ Nasir

Dakhla (A-64), Gulam Hafiz Shaikh @ Baba (A-73), Jaywant

Keshave Gurav (A-82), Liyakat Ali Habib Khan (A-85),

Mohmmed 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),

Mohammed Shahid Nizamuddin Quresh (A-135) and Eijaz

Mohammed Sharif @ Eijaz Pathan @ Sayyed Zakir (A-137).

(f) Between February to March 1993, the following persons

were sent to Pakistan via Dubai by Tiger Memon (AA) and

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Dawood Ibrahim (AA) for receiving training in handling of fire

arms, 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 @ Yakub Khan Akhtar Khan (A-

36), Firoz @ Akram Amani Malik (A-39), Nasim Ashraf Shaikh

Ali Barmare (A-49), Salim Rahim Shaikh (A-52), Nasir Abdul

Kader Kewal @ Nasir Dakhla (A-64), Salim Bismilla Khan @

Salim Kurla (Dead) (A-65), Faroow Iliyas Motorwala (A-75),

Fazal Rehman Abdul Khan (A-76), Gul Mohammed @ Gullu

Noor Mohammed Shaikh (A-77), Mohammed Hanif

Mohammed Usman Shaikh (A-92), Mohammed Rafiq Usman

Shaikh (A-94), Mohammed Sayeed Mohammed Issaq (A-95),

Niyaz Mohammed @ 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 above

said accused persons were received at Dubai Airport by

Ayub Abdul Razak Memon (AA) and Tahir Mohammed

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Merchant @ Tahir Taklya (recently deported to India and

arrested by the CBI in the case being No. RC 1(s)/1993).

(g) 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 @ Babulal Ismail Shaikh (A-109),

Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul

Kader (A-126), Mohammed Iqbal Ibrahim s/o Shaikh Ibrahim

(A-127), Shahnawaz Khan s/o Fair Mohammed Khan (A-128),

Murad Ibrahim Khan (A-130) and Mohammed 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.

(h) In March 1993, a weapons training programme was also

conducted at Sandheri 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 @

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

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Gafoor Parkar @ Dadabhai (A-17), Suleman Mohammed

Kasam Ghavate (A-18), Mohammed Iqbal Mohammed Yusuf

Shaikh (A-23), Munna @ Mohammed Ali Khan @ Manojkumar

Bhavarlal Gupta (A-24), Mohammed Moin Faridulla Qureshi

(A-43), Sardar Shahwali Khan (A-54), Shaikh Ali Shaikh Umar

(A-57), Issaq Mohammed Hajwani (A-79), Shahnawaz @

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 the Sandheri

creek on or about 8th March 1993 to aid and abet the above

offenders.

(i) On 04.03.1993, Tiger Memon called for a preparatory

meeting at the Taj Mahal Hotel which was attended by Javed

Chikna (AA), Mohammed Mushtaq Moosa Tarani (A-44),

Sardar Shahwali Khan (A-54), Shaikh Ali Shaikh Umar (A-57),

Niyaz Mohammed @ Islam Iqbal Ahmed Shaikh (A-98) and

Mohammed Usman Jan Khan (PW-2) (Approver). They

conducted reconnaissance of some of the targets on

04.03.1993 as well as on 05.03.1993.

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(j) In order to achieve the said object, vehicles were

purchased for planting explosives by Tiger Memon,

Mohammed 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

Mohammed Shafi Zariwala (AA) and he also bought two

Maruti Vans and one Ambassador Car. Mohammed 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.

(k) On 07.03.1993, 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.

(l) On 08.03.1993, 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,

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namely, Air India Building, Nariman Point, Bharat Petroleum

Refinery, Chembur, Share Market near Fountain, Zaveri

Bazaar near Mohammed 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.

(m) Again, on 10.03.1993, a meeting was held at the house

of Mobina @ Bayamoosa 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 @ Nasir Dakhla (A-64), Parvez

Mohammed Parvez Zulfikar Qureshi (A-100), Mohammed

Moin Faridulla Qureshi (A-43), Mohammed 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. 5,000/- 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

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Memon (A-1), Essa @ 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 @ Arif Memon (A-8),

Mohammed 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), Md. Farooq Mohammed Yusuf Pawale (A-

16), Mohammed Iqbal Mohammed Yusuf Shaikh (A-23),

Shahnawaz Abdul Kadar Qureshi (A-29), Zakir Hussain Noor

Mohammed Shaikh (A-32), Firoz @ Akram Amani Malik (A-

39), Mohammed 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 @

Nasir Dakhla (A-64), Mohammed Rafiq Usman Shaikh (A-94),

Mobina @ Bayamoosa Bhiwandiwala (A-96), Niyaz

Mohammed @ Islam Iqbal Ahmed Shaikh (A-98) and Parvez

Mohammed Parvez Zulfikar Qureshi (A-100).

(n) Another meeting had taken place in the intervening

night between 11/12.03.1993 at Al-Hussaini Building, Dargah

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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 fire arms in the garages owned by

the Memons’ and their relatives at Al-Hussaini Building and

utilized 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.

(o) On 12.03.1993, bombs and other explosive substances

were planted at various places by the following persons in

the following sequence:

Firstly, Mohammed Farooq Mohammed Yusuf Pawale (A-

16), Mohammed Tainur Phansopkar (AA) and Irfan Chougule

planted bomb and caused explosion at Bombay Stock

Exchange at 13:30 hrs. wherein 84 persons were killed and

218 persons were injured;

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Secondly, Parvez Nazir Ahmed Shaikh (A-12) planted bomb

and caused explosion at Katha Bazaar at 14:15 hrs. wherein

4 persons were killed and 21 persons were injured;

Thirdly, Mohammed Usman Jan Khan (PW-2) and

Mohammed Farooq Mohammed Yusuf Pawale (A-16) planted

bomb and caused explosion at Lucky Petrol Pump near Shiv

Sena Bhavan wherein 4 persons were killed and 50 persons

were injured;

Fourthly, Abdul Gani Ismail Turk (A-11) planted bomb and

caused explosion at Century Bazaar at 14:45 hrs wherein 88

persons were killed and 160 persons were injured;

Fifthly, Bashir Ahmed Usman Gani Khairulla (A-13), Zakir

Hussain Noor Mohammed Shaikh (A-32), Abdul Khan @

Yakub Khan Akhtar Khan (A-36), Firoz @ Akram Amani Malik

(A-39), Mohammed 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 Fishermen’s colony at Mahim at 14:45

hrs. wherein 3 persons were killed and 6 persons were

injured;

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Sixthly, Mohammed Farooq Mohammed Yusuf Pawale (A-

16), Mohammed Tainur (AA) and Irfan Chougule planted

bomb and caused explosion at Air India Building at 15:00 hrs

wherein 20 persons were killed and 84 persons were injured;

Seventhly, Md. Shoaib Mohammed Kasam Ghansar (A-9)

planted bomb and caused explosion at Zaveri Bazaar at

15:05 hrs. wherein 17 persons were killed and 57 were

injured;

Eighthly, Parvez Nazir Ahmed Shaikh (A-12) planted bomb

and caused explosion at Hotel Sea Rock at 15:10 hrs.

Ninthly, Asgar Yusuf Mukadam (A-10) and Shahnawaz Abdul

Kadar Qureshi (A-29) planted explosives and caused

explosion at 15:13 hrs at Plaza Cinema wherein 10 persons

were killed and 37 were injured;

Tenthly, Mohammed Mustaq Moosa Tarani (A-44) planted

bomb and caused explosion at Hotel Centaur, Juhu at 15:20

hrs. which resulted in injury to three persons.

Eleventhly, Mohammed Iqbal Mohammed Yusuf Sheikh (A-

23) and Nasim Ashraf Shaikh Ali Barmare (A-49) planted

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bomb and caused explosion at Sahar Airport at 15:30 hrs

and;

Twelfthly, Anwar Theba (AA) caused explosion at 15:40 hrs

at Centaur Hotel, Airport wherein 2 persons were killed and 8

persons were injured.

In addition to the above, at various other places, viz.,

Naigan 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.

(p) 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 Mohammed Hanif from where the following articles were

recovered and taken into possession vide Panchnama Exh.

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109. A suit case (Article 42) was found containing 65 hand

grenades and 100 electronic detonators. In addition, one VIP

suit case (Article 43) was found containing 40 hand grenades

and 50 electronic detonators. During the examination, only

85 grenades were found in the two suit cases which were

marked as Article 44 (1-84) and one hand grenade which

was sent to the FSL was marked as Article 45.

(q) Further, on 12.03.1993, one maroon coloured Maruti

van was found in 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 the Police Officer, Dinesh P.

Kadam (PW-371) in the presence of Narayan Dattaram More

(PW-46) vide Panchnama Exh. 190. The seizure included 7

AK-56 rifles, a plastic bag and 14 magazines which were

forwarded to the FSL. One more plastic bag and four hand

grenades were also recovered from the Van and were sent to

the FSL. The FSL report Exh. 2439-A establishes that these

hand grenades were capable of causing explosion. During

investigation, it was found that in the above said van, the

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following persons were sitting, viz., A-57, Javed Chikna (AA),

Bashir Khan and Nasir @ 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.

(r) On 26.03.1993, 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, 13 cartridges, 7 cartridges of 7.65 mm pistol, 4

KF 7.65 mm cartridges, 2 SBP 7.65 mm cartridges and 8

cartridges of 7.62 mm pistol.

(s) On 26.03.1993, 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

Mhasala, Tal. Shrivardhan and seized certain aricles vide

Exh. 158, namely, 13 AK-56 rifles, 26 empty magazines and

3 gunny bags (Article 86).

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(t) During the investigation, on 27.03.1993, at the instance

of accused Ashrafur Rehman Azimulla Shaikh @ Lallu, Shivaji

Shankar Sawant (PW-524) and Abdul Kadar A. Khan (PW-

323) prepared the disclosure Panchanama Exh. 439 in the

presence of Sayyed Badshah Gaus Mohiuddin (PW-85). In

pursuance of the said disclosure Panchanama, the police

recovered hand grenades, white tubes, detonators tied

together and live cartridges.

(u) On 02.04.1993, at the instance of Mohammed Yunus

Gulam Rasul @ Bota Miya (A-47), Eknath Dattatraya Jadhav

(PW-606), in the presence of PW-34, prepared the disclosure

Panchnama Exh. 93. In pursuance of the same, the police

seized vide seizure Panchnama Exh. 94 dated 02.04.1993, a

single 7.62 mm assault short rifle without magazine, 30.32

empty rifle, magazines, rounds of 7.62 rifles, Goni, Rexin Bag

and 6 swords from Raziya Manzil near Ram Shyam Theatre,

Jogeshwari, West.

(v) On 26.04.1993, 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

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disclosure Panchnama Exh. 133 and in pursuance of the said

disclosure Panchnama seized 17 hand grenades vide seizure

Panchnama Exh. 134. The said hand grenades were defused

with the help of Bomb Detection and Disposal Squad (BDDS).

(w) On 14.04.1993, at the instance of Manoj Kumar

Bhawarlal Gupta @ Munna (A-24), Ramrao Mahadev Desai

(PW-512), in the presence of Pradeep Atmaram Ire (PW-42),

prepared the disclosure Panchnama Exh. 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.

(x) On 25.03.1993, 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 Exh. 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 Exh. 479. Besides the aforesaid items, one rexin

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pouch, one revolver case and Arms Licence and one permit

in the name of Tiger Memon were also recovered.

(y) On 02.04.1993, at the instance of Ayub Patel (A-72),

Eknath Dattatraya Jadhav (PW-606), in the presence of PW-

44 prepared the disclosure Panchnama Exh. 154 and in

pursuance of the said disclosure Panchnama seized 13

dismantled hand grenades and 3 more hand grenades vide

seizure Panchnama Exh. 155 and marked under various

article numbers.

(z) On 26.03.1993, PW-506, in the presence of Laksham

Loka Karkare (PW-45), searched the house of Sharif Parkar at

Sandheri, Dist. Raigad and seized two AK-56 rifles, two

empty magazines of AK-56 and one gunny bag.

(aa) On 01.04.1993, at the instance of Ibrahim Mussa

Chauhan @ Baba (A-41), Anil Prabhakar Mahabole (PW-506),

in the presence of (PW-45), prepared the disclosure

Panchnama Exh. 171 and seized a single 7.72 mm Assault

short rifle without magazine, 10 empty rifle magazines, 564

cartridges and 25 hand grenades. In addition, a blue

coloured rexin bag was also recovered.

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(ab) On 18.04.1993, 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 Exh. 226 and seized six rifles and 12

black coloured magazines.

(ac) On 13.04.1993, 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 Exh. 101 and seized one pistol of black colour

and 48 intact 7.62 mm cartridges.

(ad) On 04.04.1993, 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 Exh. 119 and seized one 7.62 mm pistol with

magazine and 14 intact and two test fired cartridges.

(ae) On 10.04.1993, 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),

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prepared the disclosure Panchnama Exh. 115 and seized a

five chambered country made revolver.

(af) On 08.04.1993, 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 Exh. 126 and seized a single 3.62 mm

pistol with magazine as well as 32 cartridges.

(ag) On 05.04.1993, at the instance of Shaikh Aziz (A-21),

Vijay D. Meru (PW-561), in the presence of Bhaskar Baburao

Jadhav (PW-57), prepared the disclosure Panchnama Exh.

245 and seized a single .30 US Carbine, 28 cartridges and 3

magazines.

(ah) On 17.04.1993, at the instance of Ahmed Shah Durani

(A-20), Shivaji Shankar Sawant (PW-524), in the presence of

Mohd. Ayub Mohd. Umer (PW-72), prepared the disclosure

Panchnama Exh. 378 and in pursuance of the said

panchnama seized one AK-56 rifle and two magazines.

(ai) On 09.04.1993, at the instance of Md. Dawood Mohd.

Yusuf Khan (A-91), PW-522, in the presence of Ashok Kumar

Hari Vilas Pande (PW-59), prepared the disclosure

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Panchnama Exh. 265 and seized 9 empty black coloured

magazines and 3 AK-56 guns.

(aj) On 22.03.1993, at the instance of Mohammed Shoeb

Mohammed Kasam Ghansar (A-9), PW-615, in the presence

of Dinesh Dharma Sarvan (PW-53), prepared the disclosure

Panchnama Exh. 216 and seized one folded blacken

cardboard, one folded cardbox explosive, Packer Package

Ltd. Lahore and one Number Plate bearing No. MP-13-D-

0380.

(ak) On 12.03.1993, 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 @ Arif Memon (A-8)

were found which led the police party to the flat 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 Exh. 337, the

police party seized the passport of Shabana Memon, five key

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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.

(al) On 01.05.1993, at the instance of Yusuf Nullwala (A-

118), Suresh S. Walishetty (PW-680), in the presence of

Gangaram B. Sawant (PW-265), prepared the disclosure

Panchnama Exh. 1100 and seized one plastic bag of Metro

Co. and 57 intact bullets.

(am) During the investigation, the following items were

recovered from the compound of Al Hussaini Building in the

presence of Leoneison Desouza (PW-52), namely, 31 gunny

cloth pieces, 25 black cardboard pieces and 34 blacken

polythene papers.

(an) Sanjay Dutt (A-117) received three AK-56 rifles and

ammunitions from accused Abu Salem, who visited his

residence along with A-53 and A-41. After sometime, he

returned two AK-56 rifles to co-accused and kept one with

him. He also purchased one .9mm pistol from one Qyaoom,

a close associate of Dawood. When the news of his

involvement came to light, he telephoned A-118 to destroy

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the AK-56 rifle and the pistol. During the course of

investigation, A-117 made a disclosure statement Exh. 1068

which was recorded as Exh. 1068-A. He led the police party

to A-118. A-118 made a disclosure statement which was

recorded as Exh. 1068-B and led the police party to Kersi

Adejania (A-124). A-124 made a disclosure statement which

is Exh. 1068C 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 Exh. 1068D and led the police party to A-120

who produced one pistol which is Article 384-D which came

to be recovered vide Exh. 1068E drawn by Suresh S.

Wallishetty (PW-680) in the presence of Shashikaam R.S.

(PW-211).

(ao) On 18.04.1993, at the instance of Noor Mohammed (A-

50), Prakash Dhanaji Khanvelkar (PW-513), in the presence

of PW-33, prepared the disclosure Panchnama Exh. 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

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rifle from the residence of Abdul Rashid Khan (AA) at

Dreamland Co-op. Society, Marol, Bombay.

(ap) On 07.04.1993, 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.

(aq) At the instance of Janu Kamlya Vetkoli, PW-588, in the

presence of PW-89, recovered six military coloured bags

containing 9000 rounds and 3 wooden boxes containing 44

magazines vide Panchnama Exhibit 503. In the Court, the

said articles were marked as below:-

(i) 750 cartridges marked as Article No.296-B;

(ii) 6000 cartridges marked as Article No. 297-(A-i) to (A-

viii);

(iii) 549 cartridges marked as Article No. 297 (A-ix(b));

(iv) 750 cartridges marked as Article No. 297 (A-x(b));

and

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

(ar) On 25.05.1993, PW-670 forwarded 12 AK-56 rifles, 80

magazines and 100 cartridges with forwarding letter vide

Exh. 2471 to Chemical Analyser.

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(as) At the instance of Sayeed @ 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.

(at) The accused persons had undertaken firing practice at

Chinchechamal, Dist. Raigad. Nandev P. Mahajan (PW-587),

in the presence of PW-103, seized certain articles, namely, 3

broken branches, pieces of cardboard, 3 empties, 6 lead

pieces and pieces of stones.

(au) Out of the aforesaid articles, the following articles were

sent to the FSL vide Exh. 2112 i.e., 3 empties, 6 lead shots, 3

tree branches and pieces of target, stones, cardboard and 12

empties recovered on 01.04.1993, 02.04.1993 and

03.04.1993.

(av) 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 Sandheri 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

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(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 Exh. 2055.

(vi) 12 defused hand grenades Article 310-B colly

(vii) On 21.06.1993, Shashinath Raghunath Chavan (PW-

676) sent a letter Exh. 2517 to the FSL along with 67

empties for opinion.

(viii) CA Report dated 05.08.1993 vide M.L. case No. BL

643/93, 447/93, 385/93 and 568/93 through MA No.

382/2000 dated 17.10.2000.

(aw) 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 the Nangla Creek on 02.04.1993. 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-

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59, A-69 and A-121 having admitted dumping of the said

bags in the Nangla Creek in their confessional statements.

(ax) 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 04.11.1993. 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.

3) 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. Total 687 witnesses were

examined and the Special Court pronounced the judgment

on 12.09.2006/27.07.2007 awarding death sentence to 11

persons and life sentence and other sentences for the

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offences under TADA, the Indian Penal Code, 1860 (in short

‘IPC’) Arms Act, 1959 and the Explosives Act, 1884. By way

of 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 upto life imprisonment. Against the order of

acquittal, the State of Mahrashtra through CBI has filed 48

appeals.

Yakub Abdul Razak Memon (A-1)

4) 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:

The following charges were framed against A-1,

namely:

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“…..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 (U.A.E.) 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, handgrenades and other explosive substances like RDX or inflammable substances or fire-arms 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 fire-arms, ammunitions, detonators, handgrenades 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, ammunitions 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 off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions 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 12.03.1993 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 handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more

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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 of IPC read with Section 3(2)(i)(ii), 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 Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1- A), (1-B)(a) of the Arms Act, 1959, Sections 9B (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.”

In addition to the abovesaid principal charge of

conspiracy, the appellant 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 blast in Bombay and its suburbs on 12.03.1993 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;

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(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 objective of conspiracy to commit terrorist act; and

(iv) requesting the discharged Amjad Ali Meharbux and A-67 to store suitcases containing arms and ammunitions, handgrenades 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 03.02.1993 onwards, by being in possession of hand grenades, detonators which were the part of the consignment of arms, ammunitions 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 03.02.1993 onwards, being in possession of handgrenades, detonators which were the part of the consignment of arms, ammunitions 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 & 4 read with Section 6 of the Explosive Substances Act on the count of, from 03.02.1993 onwards, providing premises, having procured, concealed, aided and abetted Tiger Memon and his associates for smuggling arms, ammunitions and explosives into the country for commission of terrorist act and also by having in his possession and control explosive substances like handgrenades and detonators with an intent, and by means thereof, to endanger the lives and for causing

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serious damage to property in India and to enable his co- conspirators to do such acts.”

5) The appellant (A-1) has been convicted and sentenced

for the above said charges as follows:-

(i) The appellant-A1 has been convicted and sentenced to

death under Section 3(3) of TADA and Section 120-B of 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)

ii) The appellant (A-1) was sentenced to RI for life

alongwith a fine of Rs. 1,00,000/-, in default, to further

undergo RI for 2 years under Section 3(3) of TADA. (charge

secondly)

iii) The appellant was sentenced to RI for 10 years

alongwith a fine of Rs. 1,00,000/-, in default, to further

undergo RI for 2 years under Section 5 of TADA (charge

thirdly)

iv) The appellant was sentenced to RI for 14 years

alongwith a fine of Rs. 1,00,000/-, in default, to further

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undergo RI for 2 years under Section 6 of TADA. (charge

fourthly)

v) The appellant was sentenced to RI for 10 years with a

fine of Rs. 50,000/-, in default, to further undergo RI for 1

year under Sections 3 and 4 read with Section 6 of the

Explosive Substances Act, 1908. (charge fifthly).

6) 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:

7) 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:-

(i) 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

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sentence dated 12.09.2006 and 27.07.2007 respectively.

Inasmuch as only ‘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, RI along with fine for commission of

offences mentioned in charges at head firstly to fifthly. In

the absence of the entire judgment in terms of the above

mentioned provisions, the conviction and sentence imposed

on A-1 cannot be sustained.

(ii) The prosecution mainly relied on the evidence of

Mohammed Usman Jan Khan (PW-2), who turned approver.

According to 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.

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(iii) 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.

(iv) Several recoveries were made by the prosecution on

the statement of Md. 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 Indian Evidence Act,

1872.

(v) All the confessional statements are exculpatory and not

inculpatory. In view of the same, the entire statements

made are not acceptable.

(vi) There is no material to prove that there was a

conspiracy among the accused persons pursuant to the

demolition of Babri Masjid.

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(vii) 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 12.03.1993. Even, the

confessional statements cannot be used against A-1 since

the same were recorded before the amendment of Section

3(5) of 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:

8) Mr. Gopal Subramanium, learned senior counsel for the

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 (A1), namely;

(i) confessional statements made by co-accused;

(ii) testimonies of prosecution witnesses; and

(iii) documentary evidence.

According to him, it is incorrect to state that conviction was

based solely on the evidence of Approver (PW-2). He

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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 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. Among all the accused persons, A-

1, brother of Tiger Memon, was in-charge of entire financial

management, sending persons to Pakistan via Dubai for

training in arms and ammunitions, 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

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merit in the appeal filed by A-1 and prayed for confirmation

of death sentence.

9) We have carefully considered the entire materials, oral

and documentary evidence and the submissions made by

either side.

Validity of impugned judgment by the Special Court

10) Among various points raised, since the argument

relating to 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 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

‘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 of TADA read with Section 120-B IPC and Sections 3, 4

and 6 of the Explosive Substances Act, 1984. He further

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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.

11) In view of the above, it is desirable to go through the

relevant provisions of TADA. The 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, 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. Chapter XXVII 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

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(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.

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(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 two sections, or under which of 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.

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(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 appeal able 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:

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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.”

12) By drawing our attention to Section 353(1)(a)(b)(c), it is

contended by 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

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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 above

said 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. 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.

13) In Shambhu & Ors. vs. The State AIR 1956 All. 633,

learned single Judge of the High Court with regard to the

words “judgment” and “order” has held as under:-

“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. None-theless neither of these terms has been defined either in the Code of Criminal Procedure or the Indian Penal Code.

There is, however, no controversy as to what a "judgment" is. As held by the Federal Court in Hori Ram Singh v. Emperor AIR 1939 PC 43 (A) and Kuppuswami Rao v. The King, it is used "to indicate the termination of the case by an order of conviction or acquittal of the accused", and to

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this, by virtue of Section 367(6), Criminal P. C. must be added orders under Sections 118 or 123 (3), orders which bear the character of a conviction. Chapter 26 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".”

14) In Baldeo. vs. Deo Narain and Ors. AIR 1954 All. 104,

there was discussion about how the judgment to be in terms

of the provisions of the Code. The relevant para is as under:

“14.…..Under Section 367, Criminal P. C. 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, out 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, Criminal P. C. 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 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

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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 law.”

15) In Surendra Singh & Ors. vs. State of Uttar

Pradesh AIR 1954 SC 194, this Court has interpreted the

word “judgment”. The following conclusion is relevant which

reads as under:-

“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 on 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

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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".

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 of the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication.”

16) In Ratia Mohan. vs. The State of Gujarat AIR 1969

Guj. 320, the following para is pressed into service:-

“9. In this connection, I was referred to a decision In re. Athipalayan, AIR 1960 Mad 507, where 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:--

".......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."

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It was a case in which a sentence was announced before 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 Vridhasing v. Vasantlal B. Shah. 8 Guj LR 496 : (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 Madhya Pradesh, 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, 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 6-2-68. The accused-appellant 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

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failure of justice in the circumstances of the case. In any view of the matter, the order is, therefore, liable to be set aside.”

17) The other decision relied on is State of Orissa vs.

Ram Chander Agarwala & Ors. (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.

18) Another decision relied on is Jhari Lal vs. 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 decision makes the

sentence illegal and vitiates conviction.

19) In State of Punjab and Ors. vs. 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

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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.”

20) The next decision relied on is Krishna Swami vs.

Union of India and Ors., 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.

21) The other decision relied on by Mr. Jaspal Singh is

reported in K.V. Rami Reddi. vs. 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 XX Rule 1(1)(2) of the Civil Procedure

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Code (Madras amendment) refers “judgment when

pronounced” and “judgment to be signed”. In para 9, this

Court has held as under:

“9. Order XX Rule 5 on which great emphasis was laid by 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.

22) By pointing out that when the judgment does not

contain the material case of the prosecution, defence and

discussion on conclusion, according to 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

(Mrs.) vs. Union of India & Ors. (1992) 4 SCC 506. In

para 141, the Constitution Bench has held as under:-

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“141 …..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.”

23) In M. Nagaraj & Ors. vs. Union of India and Ors.

(2006) 8 SCC 212 which is also a decision of the 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. Gopalan and held in its landmark judgment in Maneka Gandhi v. Union of India 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).”

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24) In Confederation of ex-Servicemen Associations

and Others vs. Union of India and Ors. (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.…”

25) Now, let us consider the decisions relied on by Mr.

Gopal Subramanium, learned senior counsel for the CBI with

regard to the contentions raised. In Iqbal Ismail Sodawala

vs. The State of Maharashtra and Others (1975) 3 SCC

140, this Court considered almost 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 of IPC against the petitioner was not pronounced by

learned Sessions Judge but by his Sheristedar. It was urged

that the procedure adopted in this respect by learned

Sessions Judge was not in accordance with law. This

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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 Sheristedar 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 Sheristedar would not introduce an infirmity in the procedure adopted by him. The Sheristedar 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.

8. 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

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between 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.”

26) The next decision relied on by learned senior counsel

for CBI is reported in Rama Narang vs. Ramesh Narang

and Ors. (1995) 2 SCC 513 wherein it was held that

judgment becomes complete and appealable only after

conviction is recorded and also sentence is awarded.

27) 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

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:

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“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 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 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.

28) In Santa Singh vs. The State of Punjab, (1976) 4

SCC 190, this Court observed:

“The provisions of Section 235(2) are very salutary and contain one of the cardinal features of natural justice,

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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 mere irregularity in the course of the trial curable under Section 465. It is much more serious. It amounts to by-passing an important stage of the trial and omitting it altogether, so that the trial cannot be aid 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 Subramania Iyer v. King Emperor (1901) 28 I.A. 257 such a deviation cannot be regarded as a mere irregularity. It goes to the root of the matters and the resulting illegality is of such a character that it vitiates the sentence. (Vide Pulukurti Kotayya v. King Emperor (1947) 74 I.A. 65 and Magga and Anr. v. State of Rajasthan 1953 Cri.L.J. 892). 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”.

“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 the society which should be got rid of but as a diseased person suffering from mental malady or psychological frustration due to subconscious 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

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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.”

29) In Ram Deo Chauhan @ Raj Nath Chauhan vs.

State of Assam, AIR 2001 SC 2231, this Court examined

the issue at length and held:

“4…..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

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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 120B of 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 (SIC) 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 propose 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.”

30) 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: Narpal Singh & Ors. vs. State of Haryna, AIR

1977 SC 1066). However, in exceptional circumstances,

where remand is likely to cause delay, it is open to remedy

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the prejudice by giving a hearing to the accused on the

question of sentence by the Appellate Court. (Vide: Dagdu

& Ors. etc. vs. State of Maharashtra, AIR 1977 SC 1579;

Tarlok Singh vs. State of Punjab, AIR 1977 SC 1747; and

Kamalakar Nandram Bhavsar & Ors. vs. State of

Maharashtra, AIR 2004 SC 503). In case, at the time of

trial, there was no objection for not providing sufficient time

to the accused or in respect of 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 Appellate stage. (Vide: Motilal vs. State of

M.P. (Now Chhatisgarh), (2004) 2 SCC 469).

31) Thus, in view of the above, it is evident that generally

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

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of recording reasons is to facilitate the superior court to

examine the correctness of the judgment of the courts

below. So far as the grievance of the accused/convict that

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) is that quantum of

punishment is to be determined on considerations and

circumstances not merely connected with a particular crime

but a court is bound to give due consideration to the other

circumstances also of the criminal. It is for this reason that

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

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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 have 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.

32) In Akhtari Bi (Smt.) vs. State of M.P., AIR 2001 SC

1528, this Court explained the nature of appeal observing as

under:-

“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”.

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33) Needless to say that 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.

34) As against the above mentioned decisions, it is also

useful to refer the following decisions which are directly on

the point in issue.

35) 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 vs.

Emperor AIR 1939 PC 43; and Kuppuswami Rao vs. The

King, AIR 1949 PC 1)

36) 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

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(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

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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 eyes of law.

37) In Bachan Singh vs. State of Punjab, AIR 1980 SC

898, this Court observed:

“151…..Accordingly, sub-section (3) of Section 354 of the Cr.P.C. provides: “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 vs. State of U.P. AIR 1973 SC 947 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.

In this view, we are in accord with the dictum laid down in

Balwant Singh vs. State of Punjab AIR 1976 SC 230,

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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…..”

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 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.

38) In Allauddin Mian & Ors. Sharif Mian & Anr. vs.

State of Bihar, AIR 1989 SC 1456, this Court observed:

“10…..The said provision therefore satisfies a dual purpose; it satisfies the rule of natural justice by according

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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…..”

39) In Muniappan vs. State of T.N., AIR 1981 SC 1220,

this Court held that 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

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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.

40) In Rameshbhai Chandubhai Rathod vs. State of

Gujarat, (2009) 5 SCC 740, this Court observed that 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 (supra) as 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.

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41) Section 235(2), as interpreted by this Court in Bachan

Singh (supra), 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. Even

without referring to Bachan Singh (supra) in Muniappan

(supra), 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. This Court, in Malkiat Singh &

Ors. vs. 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

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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…..”

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 it was interpreted in Bachan Singh

(supra) having regard to the development of constitutional

law by this Court is a must before imposing death sentence.

42) 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

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amount to illegality. Pronouncing sentence before

completing the judgment, that is, before preparing the

essential part makes the sentence illegal and vitiates the

conviction.

43) 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, language and contents and the procedure to

be followed in furnishing 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. We have

already referred to the fact that the blasts occurred on

12.03.1993. Initially, the charge sheet was filed by the State

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of Maharasthra on 04.11.1993 relating to 189 persons.

Thereafter, CBI was asked to investigate further on

19.11.1993 and filed 19 supplementary charge sheets.

Finally, on 10.04.1995, order framing charges was passed.

Thereafter, recording of evidence began on 30.06.1995 by

examining the first prosecution witness. Recording of the

evidence continued till 18.10.2000. Thereafter, the

arguments commenced from 09.08.2001 which continued up

to 20.09.2003. 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 12.09.2006. 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. The

records produced show that on 12.09.2006, 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

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him and for offence under Section 3(3) of TADA Act for which charge at head secondly is framed against him and for offence under Section 5 of TADA for which charge at head thirdly is framed against him and for offence under Section 6 of 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 Explosive 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. After recording the above conclusion, the

Designated Court has also recorded the following

statements:

“The said accused were apprised regarding offences for which they were found to be guilty. In view of court having reached to such findings A-3, 4, A-8 who are on bail are taken into custody of this court and their bail bonds stand cancelled. For recording statement of accused who are found guilty about their say regarding quantum of sentence to be imposed, the matter stands posted tomorrow.”

44) On 27.07.2007, the Designated Court again read the

following conclusion in respect of A-1.

“82 a) Accused no. 1 Yakub Abdul Razak Memon out of remaining 5 accused at trial: is found guilty for 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 TADA Act, 1987 and Section 120-B of IPC read with offences mentioned in said charge and on said count 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 same by Hon’ble Apex Court about said

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part of sentence and is also ordered to pay a fine of Rs. 25, 000/- (Twenty Five Thousand.) (b) is also found guilty for offence punishable under Section 3(3) of TADA Act, 1987 for commission of such acts as found proved from charge at head secondly framed against him and on said count said accused is hereby convicted and sentenced to suffer RI for life and is ordered to pay a fine of Rs. 1,00,000/- (One Lakh only) and in default of payment of fine is ordered to suffer further RI for a period of 2(two) years. (c) is also found guilty for offence punishable under Section 5 of TADA for commission of such acts as found proved from charge at head thirdly framed against him and on said counts 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/- (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 for offence punishable under Section 6 of TADA for commission of such acts as found proved from charge at head fourthly framed against him and on said count 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/- (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 for offence punishable under Sections 3 and 4 read with Section 6 of the Explosives Act for commission of such acts as found proved from charge at head fifthly framed against him and on said count 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/- (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, aforesaid accused being found not guilty of all other offences for which said accused was charged at trial vide charges framed at Exh. 4 said accused is acquitted for all said offences. (g) accused entitled for set off in accordance with law for period for which he was in custody. (h) the substantive sentence awarded to A-1 to run concurrently. (i) A-1 is apprised of sentence awarded to him. The said accused is again apprised that sentence of Death awarded to him is subject to confirmation of same by Hon’ble Apex Court and for said purpose court would be making

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necessary reference to Apex Court within 30 days from the day of completion of passing of final order. (j) The said accused is further apprised that it will take some time to complete pronouncement of final order of conviction and sentence of remaining accused in this case and thus complete the judgment by getting same transcribed, corrected and signed. The said accused is apprised that a copy of judgment and order will be supplied to him free of cost after the same is completed and corrected in all respect and for said purpose the said accused will be ordered to be produced before Registrar of this Court on 26th September 2007 for supplying such copy subject to same being by then ready. (k) the court Sheristedar to handover operative part of order passed today to A-1. (l) Registrar to send A-1, A-3, A-4 and A-8 to Arthur Road Prison along with appropriate warrant.

27.07.2007

-Sd/-

(P.D. Kode) Presiding Officer

of the Designated Court (Under TADA (P) Act, 1987)

For Bomb Blast Cases, Greater Bombay”

45) On perusal of the conclusion with regard to A-1, it is

very much clear that he was apprised regarding the offences

for 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 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

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making necessary reference to Apex Court within 30 days

from the date of completion of passing of 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 remaining accused and

completed the judgment by getting the same transcribed,

corrected and signed. The court also directed the

Sheristedar to handover the ‘operative part’ of the order

passed on both these days, i.e., 12.09.2006 and 27.07.2007.

In view of the above, it is useful to refer the following

decisions on the point.

46) In Rama Narang vs. Ramesh Narang & Ors., (1995)

2 SCC 513, it was held as under:

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

(emphasis supplied)

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

(emphasis supplied)

The Court further held in para 15:

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“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 upto the recording of a convicton and the stage post-conviction upto the imposition of sentence. A judgment becomes complete after both these stages are covered….”

(emphasis supplied)

47) In Lakdey Ashok vs. Government of A.P., (2009) 6

ALT 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 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 of the 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)

It is clear that a conviction order is not a “judgment” as

contemplated under Section 353 and that a judgment is

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pronounced only after the award of sentence. In the case on

hand, the Designated Judge pronounced the operative part

of the judgment on 27.07.2007 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) events which had occurred in past at trial, 2) keeping in mind attitude and conduct of accused as disclosed during course of trial, 3) mammoth subject matter involved at 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 trial due to numerous incidents involved and communal conflict said to be involved, 5) impact likely to be caused at/even after commencing process of judgment within and even outside court precincts, 6) impact likely to be caused at/after declaration of final order, 7) point of security and safety of concerns attending during course of proceeding within or even outside 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 process of judgement by taking due care to prevent/avoid occurring of any event causing disturbance, interruptions etc. during same

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vitiating decorum of court, it was proper to deliver judgement only in accordance with provision of Sec. 353(1) (c) of Cr.P.C. rather than adopting any other prescribed mode for delivery of judgement. Needless to add that following the other method was bound to result trend of judgement being known to accused prior to delivery of same and thus giving all the chance to unscrupulous accused on bail to flee away and such accused in custody to create confusion/or indulge in activities, disrupting ongoing work and thereby defeating the process of law. For the same reason it was also felt necessary to keep judgement computerized and contents thereof protected by putting password rather than taking print out of the same.”

(emphasis supplied)

48) Since we have completely analyzed the method follwed

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 27.07.2007 was pronounced in

open court and signed and dated by the Designated Judge in

compliance with the requirements of the said section.

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49) 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 sub-sec. 363 (1) of Cr.P.C. will be required to be interpreted in context of 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 provisions of law or defeating right of accused.”

50) 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

27.07.2007, the appellant was apprised of the fact that a

copy of the final judgment would be provided after

completion of the order as regards sentence in respect of

the remaining accused.

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51) 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 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. The

judgment also shows that detailed hearings on sentencing

effectively commenced after all the conviction orders were

pronounced and 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 other accused at

the trial. It is also clear from the judgment that detailed

submissions were made by the appellant (A-1) during the

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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 sentence is determined.

52) Section 354(1)(c) states that every judgment referred

to in Section 353 “shall specify the offence 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. 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.

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53) 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 12.09.2006 when the

Court pronounced its verdict on the guilt or otherwise of

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.

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54) 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

in about 4,300 pages. In view of the above, we hold that the

pronouncement of the judgment was in compliance with the

above said provisions of the Code and does not violate any

of the provisions of the Code as contended by the appellant.

55) 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 leveled 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 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

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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.

56) 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 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

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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.

57) It is also relevant to point out that on apprisal of various

offences for 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 sentence and

the same were ultimately conveyed to all the accused. 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

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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.

58) 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. Learned senior counsel for A-1 relied upon

Section 362 and contended that since judgment on sentence

had not been pronounced, the Designated Court could

amend the conviction order to bring all convictions under the

IPC instead of convicting 99 accused persons under TADA. In

the light of the submissions made, we verified the records

and 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

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of Section 362 of the Code. On the other hand, as rightly

pointed out by the counsel for the 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.

59) 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 mere procedural irregularity

that would not vitiate the trial or the ultimate conclusion

unless the same results in miscarriage of justice. We are

satisfied that the impugned judgment and procedure

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followed and adopted by the Designated Court fulfill 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

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 learned

senior counsel for the appellant.

Conspiracy

60) Chapter VA of IPC speaks about Criminal Conspiracy.

Section 120A defines criminal conspiracy which is as under:

“120A. 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.

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

Section 120B speaks about punishment of criminal

conspiracy which is as under:

“120B. 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.”

Objects and Reasons of the 1913 Amendment

61) The above mentioned sections were introduced by the

amendment of 1913. It is important to notice the 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.

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

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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 particularized 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 anyting 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 rigourous imprisonement 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.”

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Prior to the amendment of the Code and the introduction of

Sections 120-A and 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). 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 vs. State of Bombay (1962) 2 SCR 195 wherein

this Court held that the 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 has held as under:-

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“31….Section 120-A of the Indian Penal Code 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 Indian Penal Code, 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

62) 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

recognized right from the early judgment in Regina vs.

Murphy (1873) 173 ER 502. In the said judgment Coleridge J.

while summing up for the Jury stated as follows:

“...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

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two parties came together and actually agreed in terms to have this common design and to pursue it by comroeff 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, 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 concertin 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 conspiracy is already 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 acts of both.”

63) Each conspirator can be attributed each others actions in a

conspiracy. 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 u/s 10 of the Evidence Act. 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

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accepted both by the Privy Council as well as by this Court. The

following judgments are relevant for this proposition:

(a) Babulal vs. Emperor, AIR 1938 PC 130, where the Privy

Council held that:

"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..."

(b) State of A.P. vs. 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.

(c) State of H.P. vs. Krishan Lal Pardhan, (1987) 2 SCC 17

where it was held that the offence of criminal conspiracy

consists of meeting of minds of two or more persons for

agreeing to do or causing to be done an illegal act or an act by

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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.

(d) In Nalini (supra), 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 summarized 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

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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 center 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 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 every one who joins in the agreement. There has 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

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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”. 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 therefore. 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

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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.”

(emphasis supplied)

64) The offence under Section 120B 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 120B, 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.

65) 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 leveled against the

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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.

66) In Ajay Aggarwal vs. 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 of the 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 of the 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

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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 (1832) 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 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.

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(Vide: Sudhir Shantilal Mehta vs. Central Bureau of

Investigation, (2009) 8 SCC 1)

67) In Yash Pal Mittal vs. State of Punjab, AIR 1977 SC

2433, the rule was laid down as follows:

“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 over-shooting by some of the conspirators.”

68) For an offence under Section 120B 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

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illegal omission 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

vs. Delhi Administration, AIR 1962 SC 1821; Lennart

Schussler & Anr. vs. Director of Enforcement & Anr.,

(1970) 1 SCC 152; Shivanarayan Laxminarayan Joshi vs.

State of Maharashtra, (1980) 2 SCC 465 and Mohammad

Usman Mohammad Hussain Maniyar and Another vs.

State of Maharashtra, AIR 1981 SC 1062)

69) In Yogesh @ Sachin Jagdish Joshi vs. State of

Maharashtra, (2008) 10 SCC 394, this Court held:

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“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.”

70) In Nirmal Singh Kahlon vs. State of Punjab, AIR

2009 SC 984, this Court following Ram Lal Narang vs.

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.

71) In K.R. Purushothaman vs. 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.…..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…”

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72) In State of Maharashtra vs. Som Nath Thapa, AIR

1996 SC 1744, this Court held :

“…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.”

73) In State through Superintendent of Police,

CBI/SIT vs. Nalini & Ors., (1999) 5 SCC 253, this Court

held:

“……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……...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……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

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accused……There has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy…….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.

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 & Ors. vs. State (Delhi Admn.),

AIR 1988 SC 1883)

74) In Firozuddin Basheeruddin & Ors. vs. State of

Kerala, (2001) 7 SCC 596, this Court held:

“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

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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.......

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. 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………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) vs. Navjot Sandhu @

Afsan Guru, (2005) 11 SCC 600)

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75) In Ram Narayan Popli vs. Central Bureau of

Investigation, (2003) 3 SCC 641, this Court held:

“…….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. 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.”

76) In Mohd. Khalid vs. State of West Bengal, (2002) 7

SCC 334, this Court held:

“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.”

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77) 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 have 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 co-accused and his actively working in

furtherance of the conspiracy. The present accused need

not be present at each and every meeting for being held to

be a part of the conspiracy.

78) 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:

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“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 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.”

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

(ii) 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.

It is to be seen that there are three conditions in the Section.

One is, before utilizing 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

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condition is satisfied in a given case, then only the question

of utilizing 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:-

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;

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;

3. This fact would be evidence for the purpose of

existence of a conspiracy and that the persons were a

part of such conspiracy.

79) This Court, in Nalini (supra), observed as under:

(a) Justice Thomas (para 106-113)

Theory of Agency, according to him, is the basic principle

which underlines Section 10 of the Evidence Act. He says

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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.

(b) Justice Wadhwa concurring, (para 575-581)

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 conspiracy.

(c) Justice Wadhwa (para 663-665)

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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 part to it.

80) 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.

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81) 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

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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 in

fact what the conspirators intended to do.

82) 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

02.02.1993 till 11.03.1993 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 spoken to 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. Though learned senior

counsel has vehemently contended that A-1 was neither

involved in arranging for landing of arms and ammunitions

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.

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83) 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.

84) It also emerged from the prosecution evidence that

conspiratorial meetings were also held on 06.01.1993 at

Hotel Parsian Darbar, Panvel which were attended by A-136,

A-90, A-102, A-134 and Md. Dosa, (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

ammunitions 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

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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

85) In this heading, we have to consider the confession

made by 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.

86) 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 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.

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(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 authorize 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.

(Signed)

A.B.

Magistrate" .

(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such 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.

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(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.”

87) Insofar as interpretation relating to Section 164 of the

Code, particularly, recording of the same and procedures to

be adopted, this very Bench in Rabindra Kumar Pal @

Dara Singh vs. Republic of India (2011) 2 SCC 490 after

considering large number of judgments on the issue laid

down the following principles:

“64 (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.

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(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 & Anr. vs. State of H.P. AIR 1953 SC

131; Dagdu & Ors. vs. State of Maharashtra (1977) 3

SCC 68; Davendra Prasad Tiwari vs. State of U.P. (1978)

4 SCC 474; Shivappa vs. Stae of Karnataka (1995) 2 SCC

76; Nalini (supra) (1999) 5 SCC 253; State of

Maharashtra vs. Damu (2000) 6 SCC 269; Bhagwan

Singh & Ors. vs. State of M.P. (2003) 3 SCC 21;

Gurjinder Singh vs. State of Punjab (2011) 3 SCC 530;

Surender Koli vs. State of Uttar Pradesh & Ors. (2011)

4 SCC 80; Kulvinder Singh & Anr. vs. State of Haryana

(2011) 5 SCC 258; and Inspector of Police, T.N. vs. John

David (2011) 5 SCC 509.]

Law relating to Confessions under TADA

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88) 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) Nothwithstanding anything in the Code or in the Indian Evidence Act, 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 in writing or on any mechanical device like cassettes, tapes or sound tracks 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

conspiractor]’ and the proviso in Section 15(1) above were

added by way of an amendment on 22.05.1993. The

amendments to TADA dated 22.05.1993 were not only in

respect of Section 15(1) of TADA but also with respect to

Section 21 of TADA (Presumption as to Offences under

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Section 3). The un-amended 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

(deleted by Act 43 of 1993)”

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)

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89) Admissibility of confession against co-accused under

Section 15 of TADA was considered in Nalini (supra). This

Court, while considering the provisions of Section 15 of TADA

and Rule 15 of the Terrorist and Disruptive Activities (P)

Rules, 1987 (in short ‘the Rules’) held:

“…..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:

“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 of 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 through that will again be within the sphere of appraisal of evidence.”

90) In Ahmed Hussein Vali Mohammed Saiyed & Anr.

vs. 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

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a rule of prudence, the court would look upon corroborative

evidence as well.

91) In Jayawant Dattatray Suryarao vs. State of

Mharashtra, (2001) 10 SCC 109, this Court considered in

detail the evidentiary value and admissibility of a

confessional statement recorded under Section 15 of 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 TADA rules are complied

with. It was observed:

“60. …. Confessional statement before the police officer under Section 15 of the 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.”

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It was further held by this Court 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……..”

92) In Ravinder Singh @ Bittu vs. State of

Maharashtra, (2002) 9 SCC 55, this Court, while

considering the reliability of a confession recorded under

Section 15 of TADA against the maker, as well as the co-

accused, held that after State vs. Nalini, Kalpnath Rai vs.

CBI does not reflect the correct position of law. It was

observed:

“13. In Kalpnath Rai v. State (through CBI) 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 through Supdt. of Police, CBI/SIT 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

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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.”

It was further held 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 concerned primarily 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 of NCT of Delhi. 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.”

93) In Mohmed Amin vs. Central Bureau of

Investigation, (2008) 15 SCC 49, it was observed:

“28. In Devender Pal Singh case majority of three-Judge Bench made a reference to Gurdeep Singh case and Nalini case and held (at SCC pp. 261-62, para 33) 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

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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 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, SCC pp. 689-90, para 35)

“(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

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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 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 @ 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 to 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 sound tracks from out of which sounds or images can be reproduced, then such confession

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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.”

After considering the confessions of the accused in the

aforesaid 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, Nalini case, S.N. Dube case, Lal Singh case, 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.”

94) In Jameel Ahmed & Anr. vs. State of Rajasthan,

(2003) 9 SCC 673 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 of 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 Indian 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

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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.”

95) In Ahmed Hussein Vali (supra), this Court, while

relying upon Nalini (supra), 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:

“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….”

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96) The amendment, by Act 43 of 1993 which came into

force from 22.05.1993 deleted sub-clauses (c) and (d) to

sub-section (1) of Section 21. This Court considered the

effect of amendment in Nalini (supra), 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 un-amended TADA as it stood prior to

22.05.1993 were to apply, there would be a presumption of

guilt against the appellant pursuant to un-amended Section

21 since confession of 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 u/s 15 of TADA prior to the amendment

97) Learned senior counsel for A-1 submitted that as the

amendment of Section 15 of TADA under which the said

confessional statements were purported to have been

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recorded was brought into effect from 22.05.1993, 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 be

obtained voluntarily and further cannot be said to be free

from taint and were wholly unreliable. Learned senior

counsel has finally submitted that as the said confessional

statements were recorded prior to the date of amendment of

Section 15 of TADA, the same have to be tested against the

touchstone of Section 30 of the Indian Evidence Act under

the general law.

98) The prosecution heavily relied on the confessional

statements of co-accused persons, namely, Asgar Yusuf

Mukadam (A-10), Abdul Gani Ismail Turk (A-11), Mohammed

Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Altaf Ali Mustaq

Ali Sayed (A-67) and Mulchand Sampatraj Shah @ Choksi (A-

97). It was submitted by senior counsel for A-1 that all the

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said statements were recorded prior to the date of

amendment of TADA Act on 22.05.1993. Till the said

amendment, the statement of an accused person was

admissible only against him. However, the amended Section

15 of TADA made the statement of an accused person

admissible in evidence against a co-accused, an abettor and

a conspirator. It was submitted by learned senior counsel

that as the recording of statement of A-10 was completed on

20.04.1993, A-11 on 18.04.1993, A-46 on 23.04.1993, A-67

on 19.04.1993 and A-97 on 19.05.1993 i.e., before the date

on which the said Section 15 of 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. It was submitted by learned senior

counsel that 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

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prospective in nature unless otherwise provided either

expressly or by necessary implication. It was further

submitted by 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.

It was urged by learned senior counsel that as the said

confessional statements were recorded prior to the

amendment of TADA, i.e., on 22.05.1993 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.

99) With regard to the same, reliance was placed on the

decision of this Court in State of Rajasthan vs. Ajit Singh

(2008) 1 SCC 601, which held as under in paras 15 and 16.

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“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…..”

100) Reliance was also placed on the decision of this Court in

Ganesh Gogoi vs. State of Assam (2009) 7 SCC 404.

Paragraph Nos. 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) of 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 Thakur 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,

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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.”

101) In State (NCT of Delhi) vs. Navjot Sandhu @ Afsan

Guru (2005) 11 SCC 600, 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) of 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

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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 v. Jitendra, SCC at p. 86, which were cited with approval in Kartar Singh case]. 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) of TADA, ex majore cautela.”

102) In Harjit Singh vs. 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

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application would be violative of restrictions imposed by Article 20 of the Constitution of India….. “

Learned senior counsel also placed reliance on the following

decisions, viz.,: Virtual Soft Systems Ltd. vs.

Commissioner of Income Tax, Delhi I (2007) 9 SCC 665,

Sanjay Dutt vs. State through CBI, Bombay (1994) 5

SCC 410, Hitendra Vishnu Thakur & Ors. vs. State of

Maharashtra & Ors. (1994) 4 SCC 602, Fairey vs.

Southampton County Council (1956) 2 ALL ER 843, The

Colonial Sugar Refining Co. Ltd. vs. Irving 1905 AC 369,

In Re: Athlumney (1898) QB 547.

103) The issue of admissibility of confessions recorded under

Section 15 of TADA prior to the amendment on 22.05.1993

has been dealt with in detail by the Designated Judge in

paras 1-8 of Part 3 of the final judgment. The issue of

admissibility against the co-accused of the confessions

recorded prior to the amendment in Section 15 of TADA was

considered by this Court in Nalini (supra) wherein this

Court concluded that confessions recorded under Section 15

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of 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:

“429. ….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.”

104) 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.

105) To sum up, it can easily be inferred that the position

of law on the evidentiary value of confession is as

under:-

(i) If the confessional statement is properly recorded

satisfying the mandatory provision of Section 15 of

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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.

(ii) Whether such confession requires corroboration or not,

is a matter for the court to consider on the basis of the

facts of each case.

(iii) 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.

(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

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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 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.

Since we have elaborately discussed the contention raised

by learned senior counsel relating to the admissibility or

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otherwise of the confessional statements, there is no need to

refer to the same in subsequent appeals before us.

106) 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)

Confessional statement of A-10 (Exh. Nos. 858 and 858A)

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 10/11th February, at his residence, A-1 handed over 3 tickets for Dubai and 3 passports to A-10 asking him to pick up Parvez Qureshi (A-100), Farooq (A-16) and Salim from Midland Hotel, handover 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 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).

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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 having not 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 the 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)

Confessional statement of A-11 (Exh. Nos. 818 and 818A)

was recorded by Mr. P.K. Jain (PW-189) which stated as

under:

1) “On 27/28th Jan, 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 07.03.1993, 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 Md. Rafiq Moosa Biyariwala (A-46)

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Confessional statement of A-46 (Exh. Nos. 867 and

867A) was recorded by Mr. K.L. Bishnoi (PW-193) which

referred 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 8/9th February, he handed over Rs. 50,000/- to the Rafiq

(A-46) which were made over to Altaf Passportwala by the latter.

4) On 10/11th 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 14/15th 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 63,000/- to the accused to be given to Altaf.

8) On 17th February, he handed over 5 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 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 Sayeed (A-67)

Confessional statement of A-67 (Exh. Nos. 819 and

819A) was recorded which referred 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.

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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 3 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 @ Choksi (A-97)

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 @ 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.”

107) In pursuance of the said disclosure, PW-513, in the

presence of Pandharinath Ganpat Hanse (PW-70) recovered

two chits i.e., Article Nos. 247 and 247-A from a diary in a

pouch (Art. 248) vide panchnama Exh. No. 373 which was

found in the cupboard of Room No. 604, 6th Floor, Rajender

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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.

108) 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 totaling

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.

109) On 12.02.1993, 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 to 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

@ Dadabhai (A-17) on account of landing charges.

Accordingly, A-10 alongwith Parvez Nazir Ahmed Shaikh (A-

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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. 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

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A-10 regarding the transaction of Rs. 25 lakhs and Rs. 10

lakhs effected on 09.03.1993 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 10.03.1993 by A-1.

110) It has come in the confessional statement of A-67 that

A-1 had asked him to book air-tickets for 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 for 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 for 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 8/9th

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 14/15 February, he,

alongwith A-10 brought Rs. 4 lakhs from A-97 and gave the

same to A-1. On 14/15 February, he was given Rs. 62-63

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thousand by A-1 to be delivered to A-67 which he,

accordingly, delivered.

111) 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. 62-63 thousand 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 for 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 313 statement had admitted

having booked the tickets for Dubai through the said

witnesses.

112) Md. 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 Mohmmed Parvez Zulfikar Qureshi (A-

100), Salim Rahim Shaikh (A-52), Md. Farooq Md. Yusuf

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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 09.03.1993, 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 10.03.1993, Rs. 21 lakhs were transferred

to the account of Irani from Tiger’s account at the instance

of A-1 by A-10.

113) The timing of these transfers, if seen in the context of

activities being carried out contemporaneously, was

transferred for meeting the expenses for achieving the

objects of 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 for Dubai for

the following persons, viz., Dawood @ Dawood Taklya Md.

Phanse @ Phanasmiyan (A-14) Abdul Razak Memon (A-5),

Hanifa Abdul Razak Memon (A-6), Yakub Abdul Razak Memon

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(A-1), Rahin Yakub Memon (A-7), Essa @ Anjum Abdul Razak

Memon (A-3), Yusuf Abdul Razak Memon (A-4) and Tiger

Memon (AA) vide Exh. 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,

Exh. 1192 shows booking of tickets for A-49, A-98, A-94, A-

39 and A-14. Exh. 1192 is a statement of Tejarath

International maintained by the firm of PW-441. The

confessional statement of A-67 to the effect that in the

second week of February, A-1 asked him to book tickets for

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 8/9th February and Rs. 62-63,000/- on 14/15th

February by A-1 to be given to A-67. The admission of A-67

in 313 statement is also evident from the booking of tickets

to Dubai through PW-341, who was running a travel agency

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by the name of M/s ABC Travels and Massey Fernandes (PW-

311) was working with M/s Hans Air Services Pvt. Ltd. PW-

341 deposed about booking 12 tickets for A-67 and the bills

which were marked as under:

“Exh. 1246 – For booking Dubai on 11th February, 1993 for

A-100, A-32, Javed Chikna and Mohd. Tainur Phansopkar.

Exh. 1247 for 12th February, 1993, for Javed Dawood Tailor

Exh. 1248 Emirates Flight for 17th February, for Yeda

Yakub, Anwar Theba, Bashir Ahmed Khan, Nasir Dhakla (A-

64), Gul Mohammed (A-77) and Abdul Ahmed.

Exh. 1243 on 11.02.1993 Shahnawaz Abdul Kadar Qureshi

(A-29) and Irfan Chougule.”

114) A-10, in his confession has stated that on 10/11

February, A-1 gave three tickets and 3 passports and asked

him to drop A-100 and A-16 to the Airport. It is pertinent to

note here that Exh. 1246 shows the booking of A-100 for

Dubai on 11.02.1993. 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 Chickna (AA) accompanied

Tiger to Dubai on 12.02.1993. Exh. 1247 shows the booking

of Javed Dawood Tailor to Dubai for 12.02.1993 by Emirates.

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Immigration Officer (PW-205) stated that Javed Dawood

Tailor left India by Emirates on 12.02.1993. Further, in the

confessional statement of A-46 it has come that on

17.02.1993, A-1 called Anwar Theba (AA) and handed over 5

passports and 5 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. Exh. 1248 shows the booking of these

persons for Dubai on 17.02.1993 by Emirates. Thus, this

booking was done by A-67 at the instance of A-1.

Immigration Officer (PW-221) stated that the above

mentioned persons left by Emirates Airlines. It has come in

the confession of A-46 that A-1 had given him 3 passports

and 3 tickets for dropping 3 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 traveled with them. A-10 in his confession corroborates

with A-46. Exh. 1243 shows the booking of A-29 and Irfan

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Chougule by Air India for going to Dubai. PW-197 stated that

Irfan Chougule left by Air India on 18.02.1993. Passport of A-

29 (Exh. 1731) shows his departure on 18.02.1993. 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 above said conspiracy.

115) 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:

“Exh. – 1421 A-14 18th January, 1993 (Dawood Phanse) Exh. – 1422 A-5, A-6, A-4 Exh. – 1423 A-7, A-3, A-1 March 1993 Exh. – 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, Exh. 1192 shows booking of

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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.

116) 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 organizing 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

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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.

117) It has come in evidence (confessional statements of A-

67 and A-46) that 4 suitcases were kept in the jeep which

was parked in the residential premises of Amhjad Ali

Meharbax (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

delievered 5 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

Mohammed Hanif (PW-282).

118) 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 Mohammed Hanif from where

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the following articles were recovered and taken into

possession vide Panchnama Exh. 109:

a) One suitcase (Article 42) was found containing 65

handgrenades 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 handgrenades were found in the two

suitcases which were marked as Article 44 to 84 and one

hand grenade which was sent to the FSL was marked as

Article 45.

c) The incharge of the store room 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 the FSL and its report

(Exh. 2439) proves the nature of article 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.

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119) It is clear from the confession of A-67 that 4 bags were

given to him at the first occasion which were containing

ammunitions etc., by discharged accused Amjad Ali

Meharbax at the instance of A-1. On the second occasion, A-

46 had delivered 3 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 7 bags from A-1

which contained arms/ammunitions etc. A-67, thereafter,

returned 5 bags to A-1 that included 4 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. A-46, in his confessional

statement, also stated about the delivery of 3 suitcases to A-

67 by A-1, but there is a small discrepancy about the manner

of receipt of 3 suitcases by A-67 wherein he stated that A-46

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had delivered 3 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.

120) In the confessional statement of A-46, it was

mentioned that on 13.02.1993 he alongwith Anwar Theba

(AA) went to the residence of Amjad Ali Meharbax (since

discharged). Accordingly, both of them brought the said

jeep to the Al-Hussaini Building and Anwar Theba went up

and handed over the key of the jeep to A-1. On

14/15.02.1993, when A-46 was present at Al-Hussaini

Building alongwith Anwar Theba (AA), A-1 called Anwar

upstairs and after sometime Anwar came down alongwith

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.

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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 handgrenades 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.

121) PW-87, who was the driver working for Abdul Razak

Suleman Memon (A-5), has deposed that A-5 was having four

vechicles, namely, red Maruti Van, blue Maruti Car, white

coloured Maruti Car and one red coloured Maruti 1000. He

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also stated that A-5 was staying at 5/6th floor of Al-Hussaini

Building alongwith his wife, daughter-in-laws and sons,

namely, Essa @ 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 (Exh. Nos. 444 and 445) on the bills

(Exh. Nos. 444A and 445A) 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.

122) PW-630, who was the Manager of Hind Automobile and

Co., deposed that he had issued Exh. Nos. 444A and 445A to

the Driver who brought the Maruti Car bearing No. MP-09-H-

0672 for servicing on 03.01.1993 and 23.02.1993

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

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vehicle for servicing was PW-87 as evident from his

signatures on Exh. Nos. 444 and 445. Exh. Nos. 444A and

445A shows that A-1 was mentioned as the owner of Vehicle

No. MP-09-H-0672.

123) It has been proved that the said Maruti Car of blue

colour was planted at Bombay Stock Exchange which

exploded at 03:30 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. 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

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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.

124) From the above, the following conduct of the appellant

(A-1) alongwith the co-conspirator family members may be

relevant:-

a) At the time of blast, they all were living together at

Dubai.

b) After the blasts, the Memons’ fled to Pakistan from

Dubai.

c) Their conduct of living together after fleeing from

Bombay and not providing information about these

blasts to the concerned authorities at Indian Embassy

prove that the members of the Memon family were also

co-conspirators in committing the said bomb blasts.

With all the activities going on at the Al-Hussaini

Building, on the eve of blasts, the members of Memon

family were aware of the activities.

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d) They never disclosed the connection of Tiger Memon

with the blasts to anybody.

e) In Pakistan, they had obtained Pakistani Passports

and National Identity Cards in assumed names.

f) They had acquired properties, started a business in

the name and style of M/s Home Land Builders,

acquired fictitious qualification certificates, driving

licenses 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.

g) They failed to appear before the Court inspite of

issuing of proclamation and the same being widely

published.

h) Instead of surrendering, they traveled to Bangkok

and Singapore from Karachi for holidays in assumed

names on Pakistani Passports during April, 1993.

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i) They had not taken any steps to surrender before the

Indian authorities or Thailand Authorities on their arrival

to Bangkok and Singapore.

j) Nor they had made any attempt to return to India.

k) Large amount of jewellery and cash was abandoned

by the Memons’ at the Al-Hussaini Building when they

hurriedly left Bombay just before the blasts.

Further, recovery from the walls/portions of the lift at the Al-

Hussaini building of RDX remanants on 22.03.1993

establishes the case of the prosecution of the activities being

carried out by the appellant and the co-conspirators at the

said place.

125) Apart from the above confessional statements and

evidence, nine Indian passports and seven Pakistani

passports belonging to the members of Memon’s 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

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Karachi residents, Address Book, Pakistani Computer

Education Certificate and Pakistani National Tax Number

Certificate in favour of Home Land Builders. 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 17.03.1993 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 17.04.1993 and reached Bangkok on the

same day. Again, the said passport holder left Bangkok

on 29.04.1993. The passport holder left Karachi on

20.06.1994 and reached Dubai on the same day.

Again, the passport holder left Dubai on 28.06.1994 but

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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 16.04.1993 and reached Bangkok

on 16.04.1993 itself. The said person left Bangkok on

27.04.1993. There is no arrival stamp of any country

on the said passport. The said person again left Karachi

on 17.06.1994 and entered Dubai on the same day.

The said person left Dubai on 03.07.1994. Again, the

said person left Karachi on 09.07.1994 and entered

Dubai on 09.07.1994 itself. Again, the said passport

holder left Dubai on 25.08.1994 and entered India on

25.08.1994 itself.

d) Pakistani Passport No. AA-763650 in respect of Akhtar

Ahmed Mohammed shows that the said passport holder

left Karachi on 16.04.1993 and reached Bangkok on

16.04.1993 itself. The said passport holder left

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Bangkok on 27.04.1993. There is no arrival stamp of

any country on the said passport. The said passport

holder again left Karachi on 17.06.1994 and reached

Dubai on 17.06.1994 itself. Again, the said passport

holder left Dubai on 25.08.1994 and reached India on

25.08.1994 itself.

e) Indian Passport No. C-340734 in respect of Yusuf Abdul

Razak Memon (A-4) shows that the said person left

Bombay on 11.03.1993 and reached Dubai on

11.03.1993. Further, he left Dubai on 17.03.1993.

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 17.04.1993 and reached Bangkok

on the same day. The said passport holder left

Bangkok on 29.04.1993. There is no arrival stamp of

any country on the said passport. Again, the said

passport holder left Karachi on 20.06.1994 and entered

Dubai on 20.06.1994 itself. The said passport holder

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left Dubai on 28.06.1994. There is no arrival stamp of

any country on the passport. Again, the said passport

holder left Karachi on 25.07.1994 and reached Dubai.

The said person left Dubai on 10.08.1994 and re-

entered Dubai on 11.08.1994. Again, the passport

holder left Dubai on 25.08.1994 and arrived at New

Delhi on 25.08.1994. 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 17.03.1994 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 25.07.1994 and entered Dubai on the same

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day itself. The said passport holder left Dubai on

10.08.1994 and re-entered Dubai on 11.08.1994.

Again, the said passport holder left Dubai on

25.08.1994 and reached India on 25.08.1994 itself.

i) Indian Passport No. C-013796 in respect of Hanifa Abdul

Razak Memon (A-6) shows that she left Dubai on

17.03.1993 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

25.07.1994 and reached Dubai on the same day itself.

She again left Dubai on 10.08.1994 and re-entered

Dubai on 11.08.1994. She again left Dubai on

25.08.1994 and entered India on 25.08.1994 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

11.03.1993 and reached Dubai on 11.03.1993 itself.

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She left Dubai on 17.03.1993 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

05.09.1994 on the said passport.

m) Indian Passport No. C-672378 in respect of Rubina

Suleman Memon (A-8) shows that she left Dubai on

20.03.1993. 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

16.04.1993 and reached Bangkok on 16.04.1993.

Again, she left Bangkok on 27.04.1993. 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

25.07.1994 and entered Dubai on the same day. She

left Dubai on 10.08.1994 and entered Dubai on

11.08.1994. Again, she left Dubai on 25.08.1994 and

entered India on 25.08.1994. The passport shows that

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Rubina Suleman Memon and Mehtab Aftab Ahmed are

the same persons.

The above evidence alongwith the confessions of various co-

accused amply prove that the weapons training was

organized with the aid of the Government of Pakistan and

also clearly shows a very deep involvement of A-1 in the

organization and conduct of serial bomb blasts in question.

Retractions:

126) It has been contended by 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

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before the Magistrate’s court several times in 1993 and

1994, however, the retractions were made many months

after recording of the confessions.

127) This Court, in Mohd. Amin v. CBI, (2008) 15 SCC 49,

considered several TADA cases where confession was

recorded under Section 15 of TADA and later retracted. This

Court was pleased to observe:

“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 scrutinize 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.”

The court rejecting the contention that confession should not

be relied upon further held in Paragraph 69 that:

“If the confessions of the appellants are scrutinized in the light of the above enumerated factors, it becomes clear that the allegations 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 of CrPC

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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 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 toA-8 and A-10.”

128) This Court, in Jameel Ahmed vs. State of Rajasthan,

(2003) 9 SCC 673 held that “it happens very often, 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.”

129) In State of Maharashtra vs. 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.”

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130) In Manjit Singh vs. 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 that made confessional

statements, subsequently retracted from their statements.

This Court observed:

“87. A confessional statement given under Section 15 of 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 was only as a result of

afterthought.

131) In Kalawati vs. State of Himachal AIR 1953 SC 131,

it was said that “the amount of credibility to be attached to a

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retracted confession would depend upon the facts and

circumstances of each case.”

132) In State of Tamil Nadu vs. Kutty AIR 2001 SC 2778,

it was held:

“…..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 (supra).

133) In Balbir Singh vs. 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 vs.

State of Assam, AIR 2004 SC 4197, Pyare Lal Bhargava

vs. State of Rajasthan AIR 1963 SC 1094, Kehar Singh &

Ors. vs. State AIR 1988 SC 1883, Babubhai Udesinh

Parmar vs. State of Gujarat (2006) 12 SCC 268).

134) 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

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retraction and its denial in statement under Section 313.

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:

135) Further, a contention was raised by learned senior

counsel for the appellant that there was no sufficient

corroboration of the confessional statements made by the

accused. In reply to the above, the prosecution relied upon

the following decisions:-

136) In Wariyam Singh vs. 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

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without any basis and the confession could be taken into

account while recording conviction.

137) In S.N. Dube vs. N.B. Bhoir, (2000) 2 SCC 254, this

Court in para 34 observed that the confessions of two

accused being substantive evidence are sufficient for

considering them and it also received corroboration from the

confessions of other 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.

138) In Lal Singh vs. State of Gujarat, (2001) 3 SCC 221,

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

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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 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: (SCC pp. 553-55, paras 30-32 and 37)

“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 Mansfied in Blatch v. Archar (1774) 1 Cowp 63: 98 ER 969 (Cowp at p. 65) ‘according to the proof which it was in the power

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of one side to prove, and in the power of the other to have contradicted’.”

139) In State of Maharashtra vs. Bharat Chaganlal

Raghani, (2001) 9 SCC 1, 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 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.

140) In Devender Pal Singh vs. State of NCT of Delhi,

(2002) 5 SCC 234, 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

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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:

“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.) It can in some cases be inferred from the acts and conduct of the parties. (See Shivnarayan Laxminarayan Joshi v. State of Maharashtra)

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.)] 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 quoted in State of U.P. v. Anil Singh, SCC p. 692, para 17.)

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.”

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141) In Ravinder Singh vs. State of Maharashtra, (2002)

9 SCC 55 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.

142) In Jameel Ahmed vs. State of Rajasthan, (2003) 9

SCC 673, 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

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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.”

143) In Nazir Khan vs. 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.

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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 organized all the activities for making arrangements for the accused and other terrorists.

144) In Sukhwant Singh vs. 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 the case of Jameel Ahmed

(supra) was relied upon. It was held:

“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 above- reported 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.”

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145) In Mohmed Amin vs. Central Bureau of

Investigation, (2008) 15 SCC 49, 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 sound tracks 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.”

146) In Mohd. Ayub Dar vs. State of Jammu and

Kashmir, (2010) 9 SCC 312, it was held that even though

the guidelines in Kartar Singh, have not been strictly

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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:

“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.

64. All these cases suggest that the only test which the court has to apply is whether the confession was voluntary

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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.”

147) 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 Md. Usman Jan Khan (PW-2) Approver

148) 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 12.03.1993. PW-2, who turned approver, is a native

of District Rampur, U.P. However, according to him, he is

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residing at Bombay for the last 28 years. He was working as

an Estate Agent and Property Dealer. He was arrested on

10.05.1993 by the 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. In his evidence, he admitted that he

took training in handling of weapons in Pakistan for a period

of 10 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 @ Ibrahim Abudal Razak Memon known as Tiger

Memon and Yakub Adbul Razak Memon as Yakub (A1). 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

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further stated that all the persons including A-1 were

involved in planning, conspiracy, training, landing and

planting of bombs. According to him, when he met Tiger

Memon and others at Hotel Big Splash on 02.02.1993, 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 has arranged for arms and explosives from Pakistan

which are coming on that day and he also warned them that

if any person betrays him, he will finish him and his family.

149) He further deposed that on the same day, at about 4

p.m., all of them left for Shekhadi Coast in two Commander

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Jeeps. In one Jeep he was traveling 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 Laundriwala 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 7 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

handgrenades 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

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(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.

150) He also explained about booking of a room in Hotel

Persian Darbar at Panvel on 10.02.1993 in the name of Md.

Usman Khan. On 11.02.1993, Javed Chikna came to his

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 the Hindustan Soda Factory, Mahim. At

about 4 p.m., he met Javed Chikna at the said place and

from there Javed took him to the Al Hussaini Building. In

categorical terms, he asserted that Tiger Memon resides in

the Al-Hussaini Building at Mahim. On 11.02.1993, when he

went there, Tiger Memon and Yakub Memon (A-1) were

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sitting together in the flat. Tiger Memon told Yakub Memon

to give six air tickets to Javed Chikna (AA). Thereafter,

Yakub Memon (A1) 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 11.02.1993. He also informed the Court that on

13.02.1993, Tiger Memon and Ayub Memon met them at the

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 the 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 salute

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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 bunglow. 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 will impart training in arms and ammunitions

and left the place. On the next day, three more persons

joined the training camp and all of them were given training

in operating fire arms like AK-56 rifles, pistols and they were

also shown how to dismantle and reassemble the fire arms.

Training in fire arms was given from 19.02.1993 to

21.02.1993. During this time, in the night, nine more persons

came to the training camp, viz., Yeda Yakub (AA-11), Nasir

Dhakla (A-64), Anwar Theba (AA-8), Irfan Chougule (AA-12),

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Shahnawaz (A-29), Abdul Akhtar (A-36), Mohmed 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 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 stonesand earth. The next day,

Tiger left the camp. On 27.02.1993, 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 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

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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 will 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.

151) On 04.03.1993, they reached Sahar Airport, Bombay.

The Disembarkation Card was filled by him 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

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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.

152) 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 the 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.

153) On the very same day, i.e, on 04.03.1993, all of them

met at the Taj Mahal Hotel. In the hotel, they went to the

Coffee shop, Shamiana. This was around 10.30 to 10.45

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p.m. Tiger Memon, after discussion with one Farooqbhai

took them towards the 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 the Bombay Municipal Corporation Building and to

check its two entrances. After noticing the same from there,

they returned to the Taj Mahal Hotel. After dropping Tiger

Memon at his residence i.e. at the 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 the Babri Masjid and communal riots.

154) 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 house. He explained that the

third meeting was held on 07.03.1993 and in that meeting

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Javed Chikna (AA-7), Tiger Memon (AA-2), Nasim @ Yusuf (A-

49), Kalu, Bashir Electrician (A-13), Moin (A-43), Parvez

Kelewala (A-100), Nasir Dhakla (A-64) and he along with

Bashir Khan, Salim Rahim Shaikh, Akram @ 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 organized 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.

155) On 08.03.1993, 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 include 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

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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 the 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.

156) According to PW-2, another meeting was held on

10.03.1993 at the 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 Dhakla, Parvez Kelewala, Moin, Iqbal, Sardar Shawali

Khan, Bashir Electrician, Mehmood @ Kaloo and Nasim @

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Yusuf. Tiger Memon also distributed Rs.5,000/- to each one

of them in the said meeting. He explained to Tiger about the

survey of the Chembur Refinery.

157) On the next day i.e., on 11.03.1993, they all gathered

at the 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 the 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 the 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 have 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.

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Tiger instructed them to go to the 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. 5,000/- to each one of them and also

directed that they have to act and work according to the

directions of Javed Chikna and Anwar Theba.

158) He further informed the Court that Tiger Memon

conveyed to them that after the blasts in Bombay, there will

be communal riots, so all of them should leave Bombay and

they can contact him over the telephone. He gave his

telephone No. 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 @ Mehmood, Nasim @ Yusuf (A-49) were filling RDX in

the dicky 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

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Sena Bhavan. He further informed that one Hawaldar

(Constable) was sitting there who was not allowing us 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 has a common boundry wall with Shiv

Sena Bhavan.

159) He also explained that after reaching the Al-Hussaini

Building, he went to the fifth floor in 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 @ 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 Fishermen’s Colony at Mahim. He

also gave four hand grenades each to Iqbal (A-23) and Nasim

@ Yusuf (A-49) and directed them to throw the same to

Sahar Airport. As planned, several blasts took place at

various places in Bombay. He contacted Tiger Memon and

apprised him of the same and as directed left Bombay

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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.

He was arrested on 10.05.1993 and on the same day, he was

brought to Bombay. About his statement to DCP Bishnoi,

he deposed before the Court on 25.06.1993 that the DCP has

correctly recorded his statement. It bears his signature and

is also counter signed by DCP Bishnoi.

160) On 20.09.1993, he wrote a letter to the Joint

Commissioner of Police, Mr. M.N. Singh through the Jail

Authorities. In this letter, he expressed that he is 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 is really

repenting what he has done then he can be made a witness

and can be given pardon if he will 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

12.03.1993. He stated before the CMM about his

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involvement in the conspiracy and planting of bombs and

expressed that he is repenting for what he had done. When

the CMM asked him whether he will 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 28.09.1993, when he was granted

pardon in the Killa Court, he was brought back to the prison

and kept in Ward No. 10.

161) In the cross-examination, he 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 12.03.1993 were

very heinous and a serious crime.

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162) When he was produced before the DCP, namely, Shri

K.L. Bishnoi (PW-193) on 25.06.1993, in categorical terms,

he explained that the DCP had cautioned him that he was

going to record his confession under Section 15 of 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.

163) In respect of a question relating to certain variations

in his earlier statement (Exh. 25A), he informed the court

that “I cannot say why it is not recorded in my statement

Exh. 25A”. Though 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 has admitted that he narrated the whole story to Mr.

Bishnoi and he recorded whatever was told to him.

However, he admitted that certain statements have been

incorrectly recorded in Exh. 25A.

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164) In cross-examination, he 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 the 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 him, the 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 12.03.1993, he left the Al-

Hussaini building in a Maruti Van bearing No. MFC 1972 in

order to attack the Bombay Municipal Corporation building

which was the target entrusted to him and to his team.

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165) When he was in custody, he came to know that most

of other accused have also made confessions like him. He

also admitted that he was aware that they will be caught for

the destruction caused in bomb explosions and the

maximum penalty will 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 will be granted pardon to which he

agreed. According to him, he read the Order Exh. 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 Exh. 25A 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 28.06.1993 and 29.06.1993 is

correctly recorded, is correct.”

166) In para 233 of his cross-examination, PW-2 has

admitted that “the contents of the retraction (Exh-D-2) are

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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

other accused persons. He also denied the allegation as

incorrect that on 05.10.1993 he expressed his unwillingness

to become an approver and showed his anxiety to join the

company of other accused. He also denied the allegation

that while he was in police custody, the police obtained his

signature on blank sheets.

167) With regard to the Al-Hussaini Building, he stated that

there were certain open and closed garages. He described

that the Al-Hussaini building is a multistoried 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 12.03.1993

i.e. in landing of arms and ammunitions and explosives,

weapons training at Islamabad, survey of targets chosen for

causing bomb explosions in various meetings held to plan

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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

B.M.C. Building at V.T.”

168) Regarding weapons training, he mentioned in para 244

that “It is correct to say that for the first time in my life, I

was given weapon training in handling and operation of AK-

56 rifles, 9 mm pistols, handgrenades and RDX explosives

during the period 17.02.1993 to 27.02.1993. Before this, I

have never operated any fire arm. It is true that I was given

a loaded Pistol at Shekhadi Coast on the night of 02.02.1993

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”.

169) About his reaction after Bombay blasts, he stated in his

deposition that “on 12.03.1993, after the successful

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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

ammunitions and explosives, he admitted that arms and

ammunitions and explosives were landed at Shekhadi in the

intervening night between 02.02.1993 and 03.02.1993 and

this consignment was carried out as per the instructions of

Tiger Memon.

170) Regarding filling of RDX and other ammunition, he

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 dicky 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

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hours. He and others were trained in Pakistan to prepare

motor vehicle bombs.

171) In para 322, he asserted that in his statement before

P.I. Pharande, DCP Bishnoi and P.I. 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.”

172) With regard to the relationship of A-1 with his brother

and others, it was stated by him that “In my statement

before P.I.Chavan I have stated that Yakub Memon, with one

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more person had come to receive us at the Sahar Airport on

our return from Dubai as stated by me before the Court

which is recorded on Page: 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 P.I.Chavan, I can not assign any reason

why it is not recorded by P.I.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.

173) He 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.

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174) About his willingness to confess his guilt before the

Court, let us consider whether all the required formalities

and procedures have been complied with by the concerned

investigating officer and the court concerned. The Chief

Investigating Officer, Bomb Blast Case, in his letter dated

28.09.1993, addressed to the Chief Metropolitan Magistrate

stated that after the Bombay blast that took place on

12.03.1993, one of the accused, namely, Mohammed Usman

Ahmed Jan Khan (PW-2) who also participated right from the

conspiracy ending with blasts on 12.03.1993 and who had

been arrested has submitted an application from jail on

20.09.1993 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

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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. The

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

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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 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 12.03.1993 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.

175) The said application of the Chief Investigating Officer,

Bombay Bomb Blast case on 28.09.1993 was submitted to

the Court through Special Public Prosecutor Shri Nikam. Shri

Nikam has also produced the warrant issued by the

Designated Court in Misc. Application No. 632 of 1993 in

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TADA Special R.A. No. 34 of 1993. In the said warrant, the

Designated Court directed that the accused Mohammed

Usman Jan Khan be produced and forwarded to the Court of

Chief Metropoitan Magistrate on 28.09.1993 at 1200 hours

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 blast offences within his personal

knowledge. 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 Chief Metropolitan

Magistrate of Bombay. Thereafter, the Chief Metropolitan

Magistrate showed the accused his handwritten application

dated 20.09.1993 addressed by him from Bombay Central

Prison to Shri M.N.Singh, Joint Commissioner of Police,

Bombay. The accused identified his hand writing 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

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produced before him. By way of reply, the accused stated

that he was involved in the Bombay blasts which took place

in Bombay on 12.03.1993 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

circumstances within his knowledge relating to Bombay

Bomb Blasts Case. 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 to the said conspiracy, the accused and

other persons had planted and caused explosion of bombs at

various places in Bombay on 12.03.1993. Therefore, he was

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satisfied that the grounds given by the Chief Investigating

Officer in his application were true and correct. After

recording the same, on 28.09.1993 itself, he passed an order

in view of powers conferred on him under Section 306 of the

Code and tendered pardon to the accused-Mohammed

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

12.03.1993 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 Chief Investigating Officer. The above

mentioned letter of the Chief Investigating Officer dated

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28.09.1993 and the consequential order passed by the Chief

Metropolitan Magistrate dated 28.09.1993 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.

176) A perusal of the entire evidence of PW-2 clearly show

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 realized 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 12.03.1993. 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 repentence. 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

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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.

177) It was further contended by learned senior counsel that

the evidence of the approver does not incriminate the

appellant (A-1). The deposition of PW-2 reveals several

incriminating circumstances against the appellant (A-1)

which may be summarized 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 11.02.1993 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 air tickets to Duabi. Further, the fact that three air tickets were given by the appellant to Javed Chikna instead of six has been expressely 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 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 04.03.1993 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.

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178) 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.

179) 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 the Tiger

Memon and other co-conspirators then Tiger memon would

not have met with the co-conspirators in the presence of A-1.

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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

establish the active participation of A-1 in the conspiracy.

180) 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.

181) It has also been contended by 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. In the light of the provisions of Section 133 read

with Section 114 Illus (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

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way of primary evidence by the prosecution. The following

table may summarise the corroboration provided by various

materials and evidence on record:

Sr. 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 Ist Landing-Unloading and loading at Wagni Tower

b) Participation in IInd 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 Wagini Tower), PW-145 (panch), PW-588 (I.O.)

Confession of co-accused A-64, A-16, A-100, A- 24, A-58, A-14, A-17 and A-11.

Art.-1. Entries in Hotel Register by name M.V. Khan. Exh. 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

Exh. 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 trainee’s co- accused

Exs. 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, Exh. 1730 A-29 Exh. 1731. A-98 Exh. 648

7 No checking at the time of Departure from Pakistan

Confession of co-accused A-39, A49, A-98, A-64, A-52 and A-16.

8 Administration of Oath at Dubai by Tiger

Exh. 2487 – Tigers presence at Dubai. Exh. 2490 – Ayub’s Passport.

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Memon Confesion of co-accused A-64, A32, A-36, A-39, A-49, A-98, A-52 and A-16.

9 Arrival in India Disembarkation Card-Exh. 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 07.03.1993

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, 39, 16 and A-98.

14 Selection of targets Confession of co-accused A-64, 39, 16 and A-98. 15 Meeing at the

residence of Mobina Confession of co-accused A-52, 64, 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, 13, 52, 100, 49 and A-29.

18 Departure of Tiger Memon

Exh. 2487-Tiger’s Passport. Confession of co-accused A-10 and A-9.

19 Filing of RDX Confession of co-accused A-57, 12, 39, 49, 64, 23 and A-43.

20 Planting at Shiv Sena Bhawan

Confession of A-16, PW-11 and 12 identified Pw- 2 and A-16. PW-469-SEM, TI Parade. Letter to FSL 2447, 2469. FSL opinion 2447A, 2448.

21 Distribution of Handgrenades for throwing at Mahim

Confession of co-accused A-32, 36, 39, 52, Pws-5 and 6 and PW-13.

22 Member of Maruti Van 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.

Art. 2 Exh. 3. Art. 3, Exh. 24.

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Natraj-Howrah

182) It is further contended by the appellant (A-1) that the

statement of approver dated 25.06.1993 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. The said statement 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 Kadawala 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 Kadawala 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:

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

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made to write my retraction by them. The letter is marked as Exh. D-1. This letter D-1 was got prepared as a rough note on the basis of which my retraction was finalized on 10.12.1993. The application dated 10.12.1993 retraction is marked as D-2. At the time in my examination in chief on 21.07.1995 whebn I stated before the court that Exh. D-2 was obtained from me by Hanif Kadawala and Samir Hingora I did not mention that there was another letter or letters obntained by them like the letter Exh. D-1. Witness volunteers that there were two/three such letters prepared and on the basis of all such letters the retraction Exh. D-2 was finalized and produced before the Court. I did not read it but has written Exh. D-1 as dictated to me by Hanif Kadawala and Samir Hingora. All these letters which were prepared before the retraction D-1 were in possession of accused Hanif Kadawala and Samir Hingora. I did not want to die. Today I do not fear deasth. At this stage witness complains to the Court that his family members are receiving repeated threats and on Saturday i.e. 29.07.1995 in his jail mulaquat he was informed that the family is receiving threats he suspects the threats are coming from Samir Hingora and Hanif Kadawala. The witness wants the court to take necessary action.”

Para 143 “…It is not correct to say that no threats have been received by my family members and tht I am mentioning this in the Court falsely.” In my statement Exh. 25-A recorded by DCP Bishnoi there is no mention on names Hanif Kadawala and Samir Hingora because at that time I was not concerned with them. Till Friday 28.07.1995 I did not tell about these letters like 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 15/20 days of filing the retraction Exh. D-2. I did not make any complaint t the court as I was with the accused persons in jail and I was afraid of them.”

Para 91 “….I sign in Hindi and English as per my choice. I can read write and understand English. …..It is true that his 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 Kadawala and Samir Hingora. This application was obtained from me against my wish. I did

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not complain of this to the court at any time till today. I did not complaint 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. Para 233

“The contents of the retraction D-2 are not mine as it contains language and words of a qualified person conversant with legal terminology. The retraction 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 other accused persons in the circle. In my Retraction Exhibit D-2 there is no reference of Samir Hingora nad Hanif kadawala……”

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

Para 234… “It will be correct to say that Hanif Kadawala, 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 kadawala 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 kadawala 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 pressurizing the accused persons to turn approver like me……..”

In 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

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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 it not correct to, state that I made deliberate mistakes in my letter addressed to Mr. M.N.Singh i.e. Exh. 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.”

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 willing. 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 D-2 was read over and understood by me and I willingly signed it in the presence of jailor for dispatch to this court.”

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 exhibit 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.”

Para 238….”It is not correct to state that on 28-9-1993 before I signed Exhibit 27 the order was not read over to me or I read it. It is not correct to state that Hanif kadawala and Samir HIngora never threatened me at any time. It is not correct to state that I did not write anything

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like D-2 under the threat or influence of Hanif and Samir. It is not correct to state that letter Exhibit D-1 is not a preparatory note.”

Para 243….”It is not true to say that my confession Exhibit 25-A is involuntary and my retraction Exhibit D-2 is voluntary. It is not true to say that my letter Exhibit 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 kadawala 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.”

183) 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 11.02.1993, 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

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recorded in my statement Exhibit 25A. 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.

184) 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 Mohammed Usman Ahmed Zan Khan/(PW-2)/Approver

185) It was submitted by 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 learned

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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.

186) In reply to the above contention, learned senior counsel

for the CBI placed reliance on a three-Judge Bench decision

of this Court in Harshad S. Mehta & Ors. vs. 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 Special Court (Trial of offences

relating to prosecutions in Securities), Act, 1992. Taking

note of various provisions of the Code, particularly, Chapter

XXIV, this Court repelled the said contention. Chapter XXIV

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of the Code deals with general provisons 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. 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;

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(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 the condition on which the tender was made, such person may be tried for the offence in respect

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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.

In the case on hand, it was also contended that grant of

pardon being a special power has to be conferred

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specifically. After adverting to the above mentioned

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 (supra),

this Court has concluded “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:

“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. 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.”

187) Posing these questions, the Bench analysed to see

whether 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

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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:

“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.”

The following conclusions 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 the case of 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. 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

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noticed by us. It is also evident from Fernandes case as well”.

188) After arriving at such a conclusion, the Bench, 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 the 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 fully supports the stand taken by CBI

and the ultimate decision arrived at by the Designated

Court.

189) It was argued by learned senior counsel appearing for

the 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 the TADA. He placed

reliance on Section 4(2) of the Code which provides as

follows:

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“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.”

The other decision relied upon by learned senior counsel for

the CBI to support his contention that the power of pardon

does exist by necessary implication to cases under TADA is

Lt. Commander Pascal Fernandes vs. State of

Maharashtra & Ors. (1968) 1 SCR 695 in which 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

(Act 46 of 1952) is not one established under the Code held,

“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”.

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190) 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 Deisgnated TADA

Judge, the said exercise of power was illegal and renders the

grant of pardon bad in law. The above contentions of Mr.

Jaspal Singh, learned senior counsel for A-1 are not

acceptable since several provisions in TADA clearly show

that Code would apply to all cases. In view of Section 4 of

the Code, trial of all offences under the Indian Penal Code or

any other laws including TADA have to be investigated,

enquired into, tried and dealt with according to the provisons

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

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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 provisons 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 provisons in any enactment, the provisions of the

Code shall govern for the purpose of investigation, enquiry

etc. As per Section 2(1)(b) of the TADA, ‘Code’ means the

Code of Criminal Procedure, 1973 (2 of 1974). Section 7(3)

of TADA makes it clear that the provisions of the Code shall,

sofaras may be and subject to such modification made in the

Act, apply to the exercise of powers by the officer under sub-

Section 1. Section 7(1) of TADA makes it futher 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

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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. Procedure

and power for Designated Courts have been mentioned in

Section 14 of 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 Sections 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) of

TADA specifically confers upon the Designated Court all the

powers that can be exercised by a Court of Sessions under

the Code which includes the power to grant pardon under

Section 306 of the Code. Section 14 of TADA provides as

follows:

“14. Procedure and powers of Designated Courts. — A Designated Court may take cognizance of any offence, without the accused being committed to it for trial, upon

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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 re-hear 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

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witness, subject to the right of the accused to recall the witness for cross-examination.

Section 18 also makes it clear that after taking congnizance

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 of the Act

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. 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. 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 (supra) held thus:

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“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….”

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.

191) 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. In the light of the above

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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.

192) 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 instance case, the CMM granted pardon

to PW-2 on 28.09.1993 in compliance with the provisions of

Section 306. Section 306(4)(a) requires that the Court of

Magistrate taking cognizance of the offence shall examine

the witness. In the instant case, where 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 of 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.

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Section 306(5) 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 above-said provision

contained under Section 14 of TADA whereby the Designated

Court had jurisdiction to take cognizane and try the offences

in TADA. 193) This Court, in Sardar Iqbal Singh vs. 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 chargesheet 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 chargesheet 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 chargesheet is filed in the Court of a Magistrate, the accused gets an opportunity of having the evidence of the

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approver at the trial tested against what he had said before the Magistrate; the accused is denied this opportunity where the chargesheet 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 chargesheet 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 Chhagganlal (P) Ltd. v.

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Municipal Corporation of Greater Bombay 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 the article is that there must be substantial and qualitative difference 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.

194) In view of the above discussion and the ratio 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)

195) He 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 was 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,

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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. He

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

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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. He 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

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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

confessional statement made and the procedure followed, he

used to handover 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 Chief Metropolitan

Magistrate. According to him, he also obtained the

acknowledgement for receipt of the same in the said Court

through his subordinate officers. He 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

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and marked the letters of requisition received by him from

various Investigating officers for recording the confession.

196) In the cross-examination, he 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.

197) With regard to the allegation that confession was

recorded in the Police Station, he 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 different office then the

Matunga Police Station. He asserted that he had followed

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the procedures mentioned in the Rules and instructions

while making the record of confession of all the accused

whose confession were recorded by him.

Evidence of Shri K.L. Bishnoi (PW-193)

198) According to him, 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 Commissionarate 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

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were registered in respect of the bomb blasts which had

occurred in the month of March, 1993 in Bombay.

199) 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 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

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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

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 was also used to tell the respective accused that during

the said period of two days i.e., 48 hours, he would be kept

at other Police Station away from the influence of I.O.

200) He 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

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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 concerned accused. After satisfying the

accused about the confessional statement made and the

procedure followed, he would handover 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. He 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),

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Page 264

Nulwala, Kersi Bapu Adejania, Mohammed Usman Jan Khan

(PW-2) and Raju Kodi (A-26).

201) In respect of a question asked regarding whether

during the relevant period he 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

22.04.1993 passed by the Joint Commissioner of Police

regarding the overall supervision of investigation of the

Bombay Bomb Blast case being given to the DCB (CID).

Recording of Confessions by Police Officers:

202) 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

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accused have been recorded after following all the

safeguards as enumerated under Section 15 of 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. Further, this Court, in S.N.

Dube vs. N.B. Bhoir, (2000) 2 SCC 254 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

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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.

203) Further in Mohd. Amin vs. CBI, (2008) 15 SCC 49, 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.

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(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

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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 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.”

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204) Similarly, in Lal Singh vs. State of Gujarat, (2001) 3

SCC 221, 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 at 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 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

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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 accused.

Observations made 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 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

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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.”

205) 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

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Page 272

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’ counter signed 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):

206) 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

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states that non-Judicial Magistrates or Honourary Magistrates

should carry out identification parades. A Special Executive

Magistrate is a non-Judicial Magistrate and is an honorary

appointment by the government. Extracts of the relevant

provisions from the 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 22nd April, 1955, is reproduced below for the information of the Civil Judges and Judicial Magistrates:

In the Judgment delivered by the Supreme Court in Ramkishan vs. Bombay State 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). 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.” (emphasis added)

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The 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 Archibold

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.

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(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.

The particulars/materials placed by the prosecution show

that the identification parades were carried out in

compliance with the requirements of the Criminal Manual.

207) It was further contended by 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 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 Special

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Executive Magistrates in compliance with the provisions of

the Criminal Manual.

208) The Criminal Manual and the Government Circular,

Home Department, No. MIS.1054/84588 dated 22nd April,

1955 in clear terms requires 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 Special Executive Magistrates.

Appointment of Special Executive Magistrates

209) 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

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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.

210) 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

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powers exercised by an Executive Magistrate can be

conferred. Accordingly, Section 21 was enacted.

211) 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 vs.

Mohd. Salim Khan (1991) 1 SCC 550. In this case, the

State of Maharashtra appointed all Assistant Commissioner

of Police (ACPs) in the Greater Bombay area as Special

Executive Magistrates. This Court, while upholding the

appointment of ACPs as Special Executive Magistrates held

as under:

‘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 the 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.”

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Provisions of TADA in this regard:

212) Section 20 of 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. Section 20

of TADA provides as follows:

“20. Modified application of certain provisions of the Code.-(1) Notwithstanding anything contained in the Code or any other laws, 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

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Magistrate or Judicial Magsitrate” shall be construed as a reference to “Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate…..”

Section 20 of 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.

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.

213) Section 20 of 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.

214) The constitutional validity of Section 20 of TADA has

been upheld by this Court in Kartar Singh vs. State of

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Punjab (1994) 3 SCC 569 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:

“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.”

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:

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215) 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 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 seizure panchnama was not in

accordance with the procedure and, more particularly,

Section 27 of the Indian 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 12.03.1993 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.

216) 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

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the prosecution witnesses strictly adhered to the procedure

contemplated for a valid Panchnama.

Panchnama:

217) 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

218) 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

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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 concerned party. The witnesses are required

to be not only impartial but also ‘respectable’. ‘Respectable’

here would mean a person who is not dis-reputed. 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’ witness may not withstand the

legal scrutiny.

219) 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 Indian Evidence

Act. It can also be used as evidence of the recorded

transaction by seeing it so as to refresh their memory u/s

159 of Indian Evidence Act.

Provisions relating to Panchnama in the Code

220) The word ‘Panchnama’ is nowhere stated in the Code,

but it can be construed from the language of certain

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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.

Section 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 situated 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.

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(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 neighborhood 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) xxx (3) xxx (4) xxx”

221) Section 100 of the Code was incorporated in order to

build confidence and a feeling of safety and security among

the public. Section 100 clauses (4) to (8) stipulate the

procedure with regard to search in the presence of two or

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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:

(a) 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 as

nothing is implanted and true search has been made

and things seized were found real.

(b)Search proceedings should be recorded by the I.O. or

some other person under the supervision of the panch

witnesses.

(c) 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 Panchanama.

(d)The I.O. can take the assistance of his subordinates for

search of places. If any superior officers are present,

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they should also sign the Panchanama after the

signature of the main I.O.

(e) Place, Name of the police station, Officer rank (I.O), full

particulars of panch witnesses and the time of

commencing and ending must be mentioned in the

Panchnama.

(f) The panchnama should be attested by the panch

witnesses as well as by the concerned IO.

(g) Any overwriting, corrections, and errors in the

Panchnama should be attested by the witnesses.

(h) If a search is conducted without warrant of court u/s

165 of the Code, the I.O. must record reasons and a

search memo should be issued.

222) 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:

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223) The Panchnama will be inadmissible in the court of law

in the following circumstances:

(i) The Panchnama recorded by the I.O. under his

supervision should not be hit by Sec.162 of the Code.

The procedure requires the I.O. 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 u/s 161

of the Code.

(ii)The Panchnama must be attested by the panch

witnesses for it to be valid in the eyes of 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 illiterate panch witness, the contents

should be read over to him for his understanding and

then the signature should be appended. If the above

said declaration is not recorded, then the panchnama

document will be hit by Sec.162 of the Code.

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224) On any deviation from the procedure, the entire

panchanama 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 I.O. 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 I.O 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’.

225) In Pradeep Narayan Madgaonkar and Ors. vs.

State of Maharashtra (1995 ) 4 SCC 255, this court upheld

that the evidence of the official (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 to see the success

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of the case based on their investigation and requires greater

care to appreciate their testimony.

226) In Mohd. Hussain Babamiyan Ramzan vs. State Of

Maharashtra, (1994) Cri.L.J. 1020, and Pannalal Damodar

vs. 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.

227) In M. Prabhulal vs. The Assistant Director,

Directorate of Revenue Intelligence (2003) 8 SCC 449

and Ravindra Shantram Sawan vs. 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.

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228) In Rameshbhai Mohanbhai Koli and Ors. vs. 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.

229) 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 bomb. 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. 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 confirmed for Dubai 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

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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 4 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 for 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. In his further confession, he 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 Menon had sent these bags and these were

to be sent along with the persons going abroad. He gave

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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, 4 bags were given to him by Amjad and

one small bag was given by Rafiq Madi. He could not give

the other 2 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 5 bags to his watchman and he had put

them in his garage.

230) Thereafter, he went to Borivali where he heard that

bombs had exploded at several places in Bombay on Friday

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i.e. 12.03.1993. 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 21/22nd March. He gave both the

bags to Yakub Memon (A-1) through a Taxi Driver, viz.,

Mohammed 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 26.03.1993, 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 realized and believed that the bags kept in his office by

Yakub Memon through Amjad contained gun powder, arms

and ammunitions and he and his men used all that for the

bomb blasts in Bombay.

231) In his confessional statement before the recording

officer, he stated that, at first, A-1 told him that it contained

office documents but later he informed him that it contained

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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 3 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.

232) The next witness heavily relied upon by the prosecution

is ‘Mohammed 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 Altafbhai

(Altaf Passportwala) and he identified Altafbhai in the Court

and also informed his full name as Altaf Ali Mustaq Ali

Sayeed. He further informed the Court that Altafbhai gave

him 2 suit cases in his office when he had been to the said

office at 09:00 p.m., on 22.03.1993. Both the said suitcases

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were given to him in a closed condition. Altafbhai told him

to keep the said suit cases and informed him that it

contained fax machines. Both the said suitcases were of

light brown colour. While describing further, it was stated

that 1 suitcase was of bigger in size while another one was

of smaller in size. He further explained that since Altafbhai

was not having place to keep the said suitcases, he had

given the same to him for keeping the same for a few days.

Accordingly, he brought the said suitcases to his house.

233) In continuation of his evidence, he stated that on

26.03.1993, at about 10:30 p.m., 4/5 policemen along with

Altafbhai came to his house. On seeing him, Altafbhai 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 Altafbhai had made a

statement. Thereafter, PW-282 deposed that he took out the

bags which were under the Sofa and gave the same to police

persons who had accompanied Altafbhai (A-67). Since he

was not having the keys, he was unable to produce the same

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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 bags also

contained wire bundles. The bigger suit case contained 65

hand grenades. The same also contained 10 bundles of

wire. The smaller suit case contained 40 hand grenades and

5 bundles of wire. He 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 suit-cases before this day.

Accordingly, the suit cases were marked as Article Nos. 42

and 43 after showing the same to him. He mentioned that

he had seen both the said suitcases in the year 1993 and

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had seen both the said suit cases on 22.03.1993. He

reiterated that he had seen the said suit cases on the said

day in the office of Altafbhai. Thereafter, the said suitcases

were given to him by Altafbhai. When a specific question

was put, namely, whether Article Nos. 42 and 43 shown to

him had any connection with the suitcases given to him by

Altafbhai, he answered that the same were the suitcases like

these suitcases. He again reiterated that suitcases Article

Nos. 42 and 43 were the suitcases given to him by Altafbhai.

234) In the cross-examination, he 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 labeled hand grenades were kept in a

bigger suit case. He also asserted that the said labeled hand

grenades or any hand grenade out of them was not removed

from the said bigger suitcase after the same were kept in the

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same up till the said bag was removed from his house by the

police. Before removing the bigger suit case 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 suit case.

235) Regarding the smaller box, he stated that in the same

manner 40 hand grenades were found from the smaller bag

and after that the same were labeled. 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 labeled hand grenades kept in the

said bag was removed after the same were kept in the said

bag, after labeling and uptill the said small bag (suitcase)

was taken out of his house by the police.

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236) He further stated that in 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 suit case. Since he disputed the number

of hand grenades, labeling 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 Feb./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 Altafbhai (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.

237) 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 the DCB CID, Unit VIII as P.I. He deposed before

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the Court that on 24.03.1993, senior P.I. V. S. Kumbhar of

DCB, CID entrusted him with further investigation of C.R. 138

of 1993 registered with L.T. Marg Police Station on

23.03.1993. After taking charge of the said investigation, he

registered C.R. No. 77 of 1993 as a corresponding C.R. No.

for the said crime. On going through the earlier papers of

investigation, he noticed a panchnama dated 23.03.1993

affected at L.T. Marg Police Station. He took charge of the

articles recorded in the said panchnama and kept the same

in the Strong Room of DCB, CID. The said articles were suit

cases, AK-56 rifles, ammunitions and hand grenades etc. He

further informed that on 24.03.1993, 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

27.03.1993, he handed over all live hand grenades seized

under Panchnama Exh. 728 to P.I. Chaugule of B.D.D.S for

defusing the same. On the same day, he had also given him

all the detonators seized under the same panchnama for

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diffusing. He had requested the said squad for returning the

said hand grenades and detonators after diffusing the same.

238) 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 the FSL and out

of them 4 articles were sealed gunny bag packets and 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 the FSL and the 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 Exh. 1846. According

to him, since the said articles were in large quantity, he had

personally taken those articles to the FSL. On 02.04.1993,

he had taken out the said articles from the Strong Room. He

asserted that the said articles were found in perfectly sealed

labeled and packed condition in which the same were

deposited in the strong room, i.e., they were in the same

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condition in which he had received them. He sent those

articles in the same condition to the FSL. On 27.04.1993, he

received a report from Chemical Analysor 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 Exh. 1847.

239) Apart from the above mentioned evidence of PW-

541, who is an officer incharge 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(P) Ac, BBC, Gr. Mumbai In

BBC No. 1/93

The State of Maharashtra/CBI, STF …Appellant vs.

Dawood Ibrahim Kaskar & Others. …..Accused

AFFIDAVIT

I, Ramesh Manohar Pargunde, 52 yrs Sr. 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 incharge of the store of muddemal property of Crime Bracnh, CID, Mumbai in the year 1993.

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On 22.05.1993, the Police Inspector of Worli Police Station had deposited 105 hand grenades and 150 detonators, which were seized in connection with LAC No. 389/93 of Worli Police Station, Mumbai in DCB, CID CR No. 112/93. 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 handgrenades were lying in the strong room 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 10.06.1993.

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 Para No. 3 and 4 is as per the record available in the office and whatever stated in Para No. 5 (a, b & 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 Spl. Public Prosecutor CBI, STF Mumbai”

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240) 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

241) 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

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prosecution witnesses and documentary evidence on record

and recoveries.

a) A10 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 the Tiger’s residence. On

10/11.02.1993, A-1 handed over three tickets to Dubai and

three passports to A10 asking him to pick up A-100, A-16

and Salim from Midland Hotel and handover 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-accued Abdul Gani (A-11), Parvez (A-

12), Md. Hussain, Salim and Anwar Theba (AA). On 17/18th

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

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from Bandra Reclamation and dropped them at the Airport.

It was A-1 who directed A-10 to transfer rupees 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 abscontion period.

b) 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, A-52. On 07.03.1993, A-11 was present at Al Hussaini

Building along with Tiger, Shafi, Essa (A-3), A-7, A-5 and A-6.

c) (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.

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50,000/- to him which was in turn given to Altaf

Passportwala. Between 14/15th 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. 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.

d) A-67 in his confession referred to the role of A-1. A-1

asked A-67 about the bags that have 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 ammunitions. 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

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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.

e) The confessional statement of A-97 clearly establishes

that Tiger had an account with him in which various amounts

totaling 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 12.02.1993, 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.

242) Confessional statements of A-10, A11 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 that in the event of A-1

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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.

243) 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.

244) 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.

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245) 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 Exh. 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. The examination of Vijayanti

B. Dembla (PW-313) and Nitin K More (PW-310) establishes

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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 the Al-Hussaini Building.

246) 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 ammunitions. On the second occasion, A-46 had

delivered three more suit cases to A-67 and upon being

asked by him, A-46 stated that the suit cases were

containing round bombs etc. Thus, A-67, in all had received

7 bags from A-1 through A-46 which 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 suit cases to A-67 by A-1. Though some

discrepancies are there, in the light of the abundant

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materials, if we read the entire confessional statement of A-

67, those were not of much importance.

247) 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 handgrenades and electronic

detonators which were concealed in the jeep and which were

delivered to A-67 in three suit cases 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 Company

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

hours killing 84 persons, injuring 270 persons and causing

loss of property worth Rs. 5 crores. The number plate (Art.

227) bearing MP-09-H-0672 was seized from the place of

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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 fom 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.

248) 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 recording officers and the

same being not liable to be discarded. Merely because

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.

249) 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

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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 ammunitions. 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 are ample evidence to

show that he was incharge 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 12.03.1993. A-1 left for Dubai on 11.03.1993 with

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the Indian Passport and thereafter he entered Pakistan with

Pakistani Passport. Though he was not one among the

persons who carried arms and ammunitions 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 ammunitions. We are

satisfied that the prosecution has established all the charges

leveled against A-1 and the Desginated Court, after

analysing all the materials including oral and documentary

evidence and the independent witnesses, rightly convicted

him.

250) 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 above said 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.

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Criminal Appeal Nos. 609-610 of 2008

Zakir Hussain Noor Mohd. Shaikh (A-32) Abdul Khan @ Yakub Khan Akhtar Khan (A-36) & Firoz @ Akram Amani Malik (A-39) ….. Appellant(s)

vs.

State of Maharashtra, Through STF, CBI, Bombay ….. Respondent(s)

*********

251) 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.

252) The present appeals are directed against the final

judgment and order of conviction and sentence dated

04.12.2006 and 24.07.2007 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

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the Bombay Bomb Blast Case, Greater Bombay in B.B.C.

No.1/1993.

Charges:

253) 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 (UA.E.) 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, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms 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 fire-arms, ammunitions, detonators, handgrenades 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, ammunitions 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 off the same as need arises. To organize training camps in Pakistan and in India

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to import and undergo weapons training in handling of arms, ammunitions 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 12.03.1993 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 handgrenades 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) of Indian Penal Code read with Sections 3(2)(i)(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 Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(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.”

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 & A-39) committed an offence punishable under Section 3(3) of TADA by doing the following acts: (i) They received training in handling of arms,

ammunition and explosives in Pakistan along with co- conspirators.

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(ii) They attended meetings at the residences of Nazir Ahmed Shaikh @ Babloo (AA) and Mobina @ 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 11.03.1993 at Al-Hussaini building.

At head Thirdly; Each of the appellants along with other co-accused went to Mahim Slope on 12.03.1993 in a Maruti Van bearing registration no. MP-13-D-385, 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 Section 3(2)(i)(ii) of TADA read with Section 149 IPC.

At head Fourthly; Each of the appellants along with 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.

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At head Ninthly; A-39, by causing the aforesaid explosion by throwing hand grenades, along with 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.

254) 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 above said charges as

under:

Conviction and Sentence

(i) The appellants have been sentenced to death under

Section 3(3) of TADA and Section 120-B of 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)

(ii) 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) of TADA. The

appellants were also ordered to pay a fine of Rs.25,000/-

each. (charge secondly)

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(iii) The appellants have been sentenced to death for the

offence punishable under Section 3(2)(i)(ii) of TADA read

with Section 149 of IPC and were also ordered to pay a fine

of Rs.25,000/- each. (charge thirdly)

(iv) The appellants were also sentenced to RI for three

years under Section 148 of IPC. (charge fourthly).

(v) The appellants have been further sentenced to RI for

life under Section 302 read with Section 149 of IPC

accompanied with a fine of Rs. 25,000/- each, in default, to

further undergo RI for 6 months. (charge fifthly).

(vi) The appellants were sentenced to RI for 14 years under

Section 307 read with Section 149 of IPC accompanied with a

fine of Rs.10,000/- each, in default, to further undergo RI for

3 months. (charge sixthly).

(vii) The appellants were sentenced to RI for 2 years under

Section 324 read with Section 149 of IPC. (charge

seventhly).

(viii) The appellants were sentenced to RI for 10 years

accompanied with a fine of Rs.5,000/- each, in default, to

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further undergo RI for 1 month under Section 436 read with

Section 149 of IPC. (charge eighthly).

(ix) A-39 has been sentenced to RI for 10 years

accompanied with a fine of Rs.5,000/- each, in default, to

further undergo RI for 1 month, under Sections 3, 4 read with

Section 6 of Explosive Substances Act, 1908 read with

Section 149 IPC. (charge ninthly).

Evidence:

255) 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

eye witnesses and documentary evidence on record. A brief

account of the evidence brought on record in respect of each

of the appellant is as under.

256) 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

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was to secure some job at Dubai. He also pointed out that

though they participated in the smuggling activities of the

Tiger Memon group, they had no intention to involve in the

terrorist act as claimed by the prosecution. According to the

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. On the other hand, learned senior counsel for

the CBI, after taking us through their confessional

statements, confessional statements of other co-accused,

the evidence of PW-2 (Approver), eye-witnesses 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:

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257) The appellants have attended several conspiratorial

meetings including the meeting at the residence of Babloo

(AA) where targets were selected and at the 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 11/12.03.1993 and

throwing of hand grenades at the Fishermen’s Colony at

Mahim on 12.03.1993 causing death of 3 persons and

injuring 6 others. 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

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earlier part of our judgment, there is no need to refer to the

same once again.

Confessional Statements:

Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)

258) Confessional statement of A-32 under Section 15 of

TADA has been recorded on 16.05.1993 (11:25 hrs.) and

19.05.1993 (17:30 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 11.02.1993 along with 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.

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(iv) He left for Islamabad from Dubai by a Pakistan

International Airlines flight.

(v) They were taken out of the 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 return 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 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.

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(x) On 07.03.1993, he attended the meeting in the house

of Babloo (AA) in Bombay where Tiger Memon ordered

them to cause riots.

(xi) On 10.03.1993, after the meeting in the house of

Mobina @ Bayamoosa 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 Fishermen’s colony at Mahim.

(xiii) Each of the appellants (A-32, A-36 & A-39) filled RDX in

vehicles at the Al-Hussaini building on the night of

11.03.1993.

(xiv) On 12.03.1993, 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 Fishermen’s Colony at 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.

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(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 Fishermen’s

Colony at Mahim.

Confessional Statement of Abdul Khan Akhtar @ Yakub Khan Akhtar Khan (A-36)

Confessional statement of A-36 under Section 15 of

TADA has been recorded on 19.05.1993 (17:40 hrs.) and

21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishno (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 @

Gul Mohd. (A-77) at Dubai Airport. They were received

by Ayub Memon (AA), brother of Tiger Memon, at the

Airport.

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(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 oath on holy Quran to keep the training in

Pakistan a secret and to wage ‘Jehad’.

(vi) In the intervening night between 11/12.03.1993, he and

other co-accused, filled RDX in vehicles at the Al-

Hussaini building.

(vii) On 12.03.1993, he along with A-32, A-39, Bashir (A-13),

Moin (A-43), Mehmud and Salim drove to Fishermen’s

colony at 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.

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(iii) A-32 and A-39 threw hand grenades at Fishermen’s

colony at Mahim.

Confessional Statement of Feroz @ Akram Amani Malik (A-39)

Confessional statement of A-39 under Section 15 of

TADA has been recorded on 19.04.1993 (22:30 hrs.) and

23.04.1993 (20:50 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 08.02.1993 along with Niyaz Mohd. @ Aslam 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 the

Islamabad Airport without any immigration check.

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(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 10.03.1993, 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 12.03.1993, he along with A-32, A-36, Bashir (A-13)

Moin, (A-43), Salim and Mahmud threw hand grenades

at the Fishermen’s Colony at 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 the Chembur

Refinery.

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(iii) A-32 and A-36 also threw hand grenades at the

Fishermen’s Colony at Mahim.

259) 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 Fishermen’s Colony at

Mahim.

260) 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

of TADA and the rules framed thereunder have been duly

complied with while recording the confessions of the

appellants.

Retraction Statements

261) It is contended by learned counsel for the appellants

that the above mentioned confessions should not be relied

upon since they were subsequently retracted by A-32 and A-

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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 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 1 year. Since we have elaborately

discussed the contention raised by 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) 262) Confessional statement of A-13 under Section 15 of

TADA has been recorded on 16.05.1993 (10:30 hrs.) and

18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. The prosecution submits

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that the confession of A-13 is pertinent since he was one of

the co-accused who accompanied the appellants to the

Fishermen’s colony at Mahim on 12.03.1993. His confession

corroborates the confessions of the appellants in material

aspects.

Reference to A-32

(i) A-32 attended a conspiratorial meeting on 10.03.1993

at the residence of Mobina.

(ii) On 11.03.1993, at 11.00 p.m., A-32 took him to the

house of Tiger Memon at the 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

Cause-way on 12.03.1993.

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 11/12.03.1993.

(ii) In the morning of 12.03.1993, A-36 was present at Al-

Hussaini building to execute his job of throwing hand

grenades as assigned by Tiger Memon.

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(iii) He along with A-36, A-32, A-39, Saleem Dandekar and

Mehmood went to Mahim Slope Cause-way and threw

hand grenades at hutments.

Reference to A-39

He along with A-39, A-32, A-36, Saleem, Mehmood and

Moin threw hand grenades at Mahim Slope way.

Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)

Confessional statement of A-16 under Section 15 of

TADA has been recorded on 20.05.1993 (16:30 hrs.) and

22.05.1993 (16:45 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:-

Reference to A-32

A-32 attended training in handling arms and explosives

in Pakistan.

Reference to A-39

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He attended the meeting held by Tiger Memon on

07.03.1993 in which Tiger informed that he was going to

cause riots in Bombay.

Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)

Confessional statement of A-23 under Section 15 of

TADA has been recorded on 20.05.1993 (10:00 hrs.) and

22.05.1993 (10:00 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 11/12.03.1993, A-32

filled the vehicles with RDX along with other co-accused

at Al-Hussaini building.

(ii) On 12.03.1993, 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)

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Page 339

Confessional statement of A-29 under Section 15 of

TADA has been recorded on 18.05.1993 (18:30 hrs.) and

21.05.1993 (14:45 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:-

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.5,000/- from Tiger Memon

Reference to A-36

(i) A-36 was present in the training camp in Pakistan when

he and 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.

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(iv) A-36 was present at Al-Hussaini Building compound on

the night of 11.03.1993 along with Tiger, Shafi, Anwar,

Bashir Muchhad, Nasim, Parvez, Zakir and Sardar Khan

where vehicle bombs were prepared.

(v) On 12.03.1993, 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.5,000/- from Tiger Memon.

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)

Confessional statement of A-49 under Section 15 of

TADA has been recorded on 16.05.1993 (09:30 hrs.) and

18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then

DCP, Zone III, Bombay. He made the following assertions:-

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Page 341

Reference to A-32

(i) A-32 participated in the weapons training in Pakistan.

(ii) A-32 was present at the Al-Hussaini building in the

morning of 12.03.1993.

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 11.03.1993.

Reference to A-39

A-39 also received weapons training in Pakistan.

Confessional Statement of Salim Rahim Shaikh (A-52)

Confessional statement of A-52 under Section 15 of

TADA has been recorded on 15.04.1993 and 18.04.1993 by

Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. He

made the following assertions:-

Reference to A-32

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(i) On 11.02.1993, A-32 along with other co-accused

persons left Bombay and reached Dubai.

(ii) On 12.02.1993, A-32 along with others stayed in a

building opposite to the Hotel Al-Khaleez in Dubai

where Tiger Memon met them.

(iii) On 13.02.1993, A-32 along with 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 14.02.1993, A-32 along with 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 11.03.1993, A-32 was seen at the residence of Tiger

Memon assisting in loading of vehicles with RDX for

causing bomb blasts.

(vi) On 12.03.1993, he along with other persons boarded

the Maruti Car driven by him (A-32) in which 30 hand

grenades were kept and they took it to the Mahim

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Slopeway, Koliwada where he along with others threw

hand grenades at Fishermen’s Colony causing blasts.

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 11.03.1993, A-39 (referred to as ‘Akram’) was seen

at the residence of Tiger Memon at the 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)

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Page 344

Confessional statement of A-57 under Section 15 of

TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri

Krishan Lal Bishnoi (PW-193), the then DCP, Zone III,

Bombay. He made the following assertions:-

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 the Al-

Hussaini building.

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.5,000/- by Tiger

Memon in the said meeting.

Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)

Confessional statement of A-64 under Section 15 of

TADA has been recorded on 22.01.1995 and 24.01.1995 by

HC Singh (PW-474), the then Superintendent of Police,

CBI/SPE/STF, New Delhi. A-64 made the following assertions:

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Page 345

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.

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 10.03.1993

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 the Al-Hussaini Building on the night of

11.03.1993 by using RDX which had landed at

Shekhadi.

Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)

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Page 346

Confessional statement of A-94 under Section 15 of

TADA has been recorded on 14.05.1993 (18:30) and

16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then

DCP, Zone III, Bombay. He made the following assertions:-

Reference to A-32

On 10.03.1993, A-32 accompanied with Niaz @ 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.5,000/- to

each one of them.

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.

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.

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(ii) On 10.03.1993, A-39 along with Nasim @ 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. 5,000/- to

each one of them.

Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)

Confessional statement of A-98 under Section 15 of

TADA has been recorded on 17.05.1993 (14:30 hrs.) and

20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. He made the following

assertions:-

Reference to A-32

(i) A-32 received training in handling of different types of

arms and ammunitions, hand grenades and making of

bombs by using RDX.

(ii) On 01.03.1993, after all 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

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the speech given by Tiger regarding the riots in

Bombay.

Reference to A-36

(i) A-36 received training in handling of different types of

arms and ammunitions, hand grenades and making of

bombs by using RDX.

(ii) On 01.03.1993, 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.

Reference to A-39

(i) On 08.02.1993, 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 ammunitions, hand grenades and making of

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bombs by using RDX. During training, his assumed

name was ‘Akram’.

(iii) On 01.03.1993, after all 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)

Confessional statement of A-100 under Section 15 of

TADA has been recorded on 15.04.1993 (23:30 hrs.) and

17.04.1993 (17:00 hrs.) by Sanjay Pandey (PW 492), the

then DCP, Zone-VIII, Bombay. He made the following

assertions:-

Reference to A-32

(i) A-32 participated in the training of fire arms and

ammunitions in Pakistan along with his associates

during February, 1993.

(ii) On 02.03.1993, 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

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Hindus for demolition of Babri Masjid and their tyranny

perpetrated on them.

(iii) A-32 was present at the residence of Tiger Memon at

Al-Hussaini building on the night of 11.03.1993 along

with other co-accused.

Reference to A-39

A-39 participated in the training of fire arms and

ammunitions at Islamabad, Pakistan along with his

associates during Feb. 1993.

263) A perusal of the confessional statements of all the

above accused viz., A-13, 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 11/12.03.1993 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

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Dubai and received training in handling of arms and

ammunitions 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

Fishermen’s Colony at Mahim on 12.03.1993 causing death

of 3 persons and injuring 6 others.

Deposition of Prosecution Witnesses:

Deposition of Mohammed Usman Ahmed Zan Khan

(PW-2) (Approver)

264) PW-2 deposed as under:-

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 at Dubai.

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(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 08.03.1993, 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 10.03.1993 at

Bandra where he met Tiger Memon and other co-

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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.

Reference to A-36

(i) A-36 also joined training in Pakistan.

(ii) A-36 attended the meeting at the Al-Hussaini building

on 11.03.1993 where targets were discussed.

(iii) A-36 received four hand grenades from Javed Chikna

(AA) on 12.03.1993 and was instructed to throw the

same at Fishermen’s colony at Mahim.

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

07.03.1993 where Tiger Memon discussed about

targets.

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(iv) On 11.03.1993, A-39 along with other co-accused

persons went to survey Bharat Refinery as a

prospective target.

265) 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 traveled to Pakistan

and received training in handling of arms and ammunitions,

explosive substances and throwing of hand grenades. They

attended meetings at 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

Fishermen’s colony at Mahim, on 12.03.1993.

Deposition of Laxman Patil (PW-5)

PW-5 is a resident of the Fishermen’s Colony and is an

eye-witness 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.

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(ii) He participated in the identification parade dated

15.05.1993 conducted at Mahim Police Station by

Special Executive Magistrate (PW-469).

(iii) He also identified the car bearing No. MP-13-D-385 in

which the appellants came to Mahim slopeway in order

to throw hand grenades.

Deposition of Santosh Patil (PW-6)

PW-6 deposed as follows:

(i) He is a resident of Fishermen’s Colony at 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 385.

(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

20.09.1995.

(iv) He also identified A-32, A-36 and A-39 in the

identification parade dated 15.05.1993 conducted at

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Mahim Police Station by Special Executive Magistrate,

PW-469.

Deposition of Shashikant Shetty (PW 13)

PW-13 is an eye-witness and a resident of Mahim

Fishermens’ Colony. 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

15.05.1993, conducted at Mahim police station by

Special Executive Magistrate PW-469.

(iv) He identified the Maruti Van in which the accused

persons came to Fishermen’s Colony as MP-D-13-385.

(v) PW-13 lodged the First Information Report in respect of

the explosions at Fishermen’s Colony.

266) From the depositions of PWs-5, 6 and 13, the eye-

witnesses, the identification of the appellants as those

persons who threw hand grenades towards Fishermen’s

Colony at Mahim on 12.03.1993 has been established. They

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Page 357

also identified the Maruti Van bearing No. MP-D-13-385 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

Fishermen’s colony against the appellants.

Investigation, Recoveries and FSL Report:

267) On 12.03.1993, Shantaram Gangaram Hire (PW-562),

Police Officer, visited the blast site i.e., Fishermen’s colony

at Mahim and prepared spot panchnama (Exh. 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 Exh. No. 1221 which were sent to

the Forensic Science Laboratory (“FSL”) for opinion. The FSL

Report Exh. 1943 proved remnants to be explosives and part

of hand grenades.

Evidence with regard to injured victims and deceased:

268) 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,

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Page 358

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 Exh. Nos. 2374 and 2372

respectively.

269) 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

12.03.1993. Achyut Shamrao Pawal (PW-542) also proved

the death of 3 persons at Fishermen’s Colony in the said

incident.

Vehicle used for committing the act:

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270) The prosecution has brought to our notice that the

vehicle used by the appellants for traveling to Fishermen’s

Colony was purchased by Shafi (AA) which has been proved

through the following witnesses:

Deposition of Kailash Govind Rao Baheti (PW 342)

He deposed as follows:-

“On 18.01.1993 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 Van 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 brought by me from M/s Bhatia & Company, Gurgaon, Haryana and blue coloured Maruti Van brought from Vipul Motors, Faridabad, Haryana, in my stock. I had brought 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

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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.””

Depostion of Shakeel Suleman Hasham (PW-366)

He 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 Fishermen’s 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.”

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Page 361

The said vehicles were insured through Vijay A. Tamore (PW-

338).

Evidence of travel to Dubai for training in Pakistan:

271) The Immigration Officer, Asmita Ashish Bhosale (PW-

215) proved the Embarkation card (‘X’-314’) that was

submitted at the Sahar Airport on 11.02.1993 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

03.03.1993. The depositions of PWs-215 and 212 establish

that A-32 left India on 11.02.1993 for Dubai and returned on

03.03.1993. These depositions further corroborate the

confessional statement of A-32 wherein he admitted to flying

to Dubai on 11.02.1993 and returned on 03.03.1993.

272) 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

08.02.1993. 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 08.02.1993 from Bombay.

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Page 362

273) 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

03.03.1993. This deposition further corroborates the

confessional statement of A-36 wherein he stated that he

returned from Dubai on 03.03.1993.

274) The evidence on record, particularly, as discussed

above, sufficiently establish 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:

(i) The appellants attended conspiratorial meeting at

Dubai on 01.03.1993 where they took oath on holy

Quran to keep their training in Pakistan a secret.

(ii) On 08.03.1993, the appellants (A-32 and A-39)

attended conspiratorial meeting at Babloo’s residence.

(iii) On 10.03.1993, the appellant (A-32) attended

conspiratorial meeting at Mobina’s residence.

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Page 363

(iv) On 11/12.03.1993, the appellants (A-36 and A-39)

attended conspiratorial meeting at the Al-Hussaini

building.

(v) The appellants received weapons training in Pakistan;

(vi) On 11/12.03.1993, the appellants participated in filling

of RDX in vehicles at the Al-Hussaini building and;

(vii) On 12.03.1993, the appellants threw hand grenades

towards the Fishermen’s colony which resulted in death

of 3 persons and injuring 6 others.

275) 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 participated in the conspiracy but

was forced to carry out conspiratorial acts.

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Page 364

276) As against this argument, learned senior counsel for the

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. 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,

appellant would not have willingly participated in such a

conspiracy without having thought about his family. In reply,

learned senior counsel for the CBI contended that he was

fully conscious of the conspiratorial acts and willingly

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Page 365

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 appellant (A-32) was

fully conscious of his acts is further established from his

conduct subsequent to the incident, wherein he traveled to

Karnataka immediately after the blasts in order to evade

arrest.

277) The fact that 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.

278) 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.

279) It is further contended by the counsel for the appellants

that the Al-Hussaini building is located in a densely

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Page 366

populated area within a few hundred meters 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 11/12.03.1993. Therefore, 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 the Al Hussaini Building.

280) 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 12.03.1993 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

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Page 367

matter since both the abovesaid accused have admitted to

have gone to Mahim on the fateful day in a Maruti car.

281) 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, 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). 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.

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Page 368

Criminal Appeal Nos. 628-629 of 2008

Mohammed Mushtaq Moosa Tarani (A-44) ….. Appellant

vs.

State of Maharashtra, Through STF, CBI Bombay ….. Respondent

*********

282) 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

283) The instant appeals are directed against the final

judgment and order of conviction and sentence dated

27.09.2006 and 18.07.2007 respectively, whereby the

appellant has been convicted and sentenced to Death by the

Designated Court under TADA for the Bombay Bomb Blast

Case, Greater Bombay in BBC No. 1/1993.

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Page 369

Charges:

284) 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 (UA.E.) 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, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms 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 fire-arms, ammunitions, detonators, handgrenades 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, ammunitions 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 off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions 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

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Page 370

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 12.03.1993 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 handgrenades 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) of Indian Penal Code read with Sections 3(2)(i)(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 Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(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.”

In addition to the above-said 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) of TADA by committing 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.

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At head thirdly;On 12.03.1993, 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 crore, thereby committing an offence punishable under Section 3(2)(ii) of 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 of 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 of 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 of IPC.

At head seventhly; On 12.03.1993, 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) of TADA.

At head eighthly; The appellant (A-44), by planting the aforesaid explosive laden scooter also committed an offence punishable under Section 307 of 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 of IPC.

At head tenthly; The appellant (A-44), by planting the aforesaid explosive laden scooter committed an offence punishable under Section 436 of 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 and;

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At head twelfthly; The appellant (A-44), by planting the aforesaid explosive laden suitcase and by possessing the RDX in the said suitcase unauthorisedly committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908.

285) The Designated Judge found the appellant guilty on all

the aforesaid charges. The appellant has been convicted

and sentenced for the above said charges as follows:

Conviction and Sentence:

(i) The appellant (A-44) has been sentenced to death

under Section 3(3) of TADA (P) Act, 1987 and Section 120-B

of 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)

(ii) 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) of

TADA. (charge secondly)

(iii) 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) of TADA.

(charge thirdly)

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(iv) 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 of IPC.

(charge fourthly)

(v) He has been sentenced to RI for 3 years for the

commission of offence under Section 324 of IPC. (charge

fifthly)

(vi) 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 of

IPC. (charge sixthly)

(vii) 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) of TADA.

(charge seventhly)

(viii) 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 of IPC.

(charge eighthly)

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(ix) He has been sentenced to RI for 31/2 (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

Sections 435 read with 511 of IPC. (charge ninthly)

(x) 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 of IPC. (charge tenthly)

(xi) 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)

(xii) 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

286) The evidence against the appellant (A-44) is in the form

of:-

(i) his own confession;

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Page 375

(ii) confessions made by other co-conspirators; (co-

accused);

(iii) testimonies of prosecution witnesses including eye

witnesses; and

(iv) documentary evidence.

Conspiracy:

287) 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. 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 - Mohammed Mushtaq Moosa Tarani (A-44)

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Page 376

288) 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 of TADA

on 26.05.1993 and 28.05.1993 at 18.30 hrs by Shri K.L.

Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said

confessional statement is summarized 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 05.03.1993, the appellant (A-44), along with his

friend Md. 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.

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Page 377

(iv) On 06.03.1993, 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 11.03.1993, 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 12.03.1993 and plant the

same in the reserved room.

(vii) On 12.03.1993, 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,

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Page 378

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 the

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.

289) 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’;

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Page 379

(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 the

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.

290) 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.

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Page 380

Retraction Statement:

291) Mr. Manish, learned counsel for the appellant (A-44)

contended that the above-mentioned confession of the

appellant dated 26.05.1993 and 28.05.1993 should not be

relied upon since it was sought to be retracted by the

appellant on 07.06.1994. In reply, learned senior counsel for

the 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 pin-point the reason behind failure

to make 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

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Page 381

earlier part of our judgment, there is no need to refer the

same once again.

Confessional Statements of co-accused:

292) 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 summarized hereinbelow:

Confessional Statement of Md. Shoaib Mohammed Kasam Ghansar (A-9)

Confessional statement of A-9 under Section 15 of

TADA has been recorded on 19.04.1993 and 22.04.1993 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

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Page 382

Anwar, a boy of fair color 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 the 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 12.03.1993, 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)

Confessional statement of A-10 under Section 15 of

TADA has been recorded on 20.04.1993 and 23.04.1993 at

18:00 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:

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Page 383

(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)

Confessional statement of A-12 under Section 15 of

TADA has been recorded on 18.04.1993 and 20.04.1994 at

06:50 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:

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Page 384

(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. Mustaq 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 the 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)

Confessional statement of A-15 under Section 15 of

TADA has been recorded on 07.05.1993 and 09.05.1993 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.

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Page 385

(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 the Al-Hussaini Building,

he was holding his coat in his hand. Thereafter, Anwar

instructed him to plant the scooter filled with RDX.

293) 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 above-said

confessions of the co-accused further establish the following

facts:-

(i) The appellant (A-44) was seen in the company of the

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;

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Page 386

(v) The appellant returned to the 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)

294) The deposition of PW-17 was recorded on 20.11.1995.

The relevant material in his evidence is as follows:-

(i) He deposed that at the relevant time, he was working

as a bellboy at Hotel Centaur, Juhu.

(ii) On 12.03.1993, around 11:45 am, 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.

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Page 387

(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 3:00/3:30 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

12.03.1993.

(viii) He also identified the appellant in the identification

parade dated 07.06.1993 conducted by Special

Executive Magistrate, Vaman D. Sapre (PW-249) at

Santacruz Police Station.

Deposition of Milind Purushottam Kamble (PW-18)

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 House Keeping Department of Hotel Centaur, Juhu.

(ii) On 12.03.1993, the appellant (A-44) enquired from him

about the location of Room No. 3078 in the Hotel.

38

Page 388

(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 color 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 07.06.1993 conducted by

the Special Executive Magistrate, Vaman D. Sapre (PW-

249).

(viii) He also identified Article No. 9 (coat), Article No. 10

(black pant) and Article No. 11 (white shirt) being

clothes worn by the appellant (A-44) on 12.03.1993

when he visited the Hotel.

38

Page 389

295) 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)

The deposition of PW-260 was recorded on 13.01.1998.

He deposed that:

(i) At the relevant time, he was working as a receptionist

at Hotel Centaur, Juhu.

(ii) On 08.03.1993, a male person, aged about 30 to 35

years, approached the Front Desk and told that he was

having a reservation in the name of one Mr. Sanjeev Rai

38

Page 390

and that he had come to make an advance payment of

Rs.5,000/- towards reservation of the room.

Deposition of Sanjay Manohar Dalvi (PW-261)

The deposition of PW-261 was recorded on 13.01.1998.

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

08.03.1993 and he issued a receipt of Rs.5,000/- (Exh. 1093)

as advance payment towards the room rent.

Deposition of Cedric Merwyn Creado (PW-262)

The deposition of PW-262 was recorded on 13.01.1998.

He deposed that:

(i) At the relevant time, he was working as a Front Office

Receptionist and on 11.03.1993, a male person came to

the desk and enquired for a room.

39

Page 391

(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 (Exh. 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)

The deposition of PW-102 was recorded on 27.09.1996.

PW-102 is a resident of Bel Air Apartment since 1963 and he

39

Page 392

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)

The deposition of PW-322 was recorded on 27.04.1998.

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 12.03.1993

at 15:30 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 C.R.

No. 155/1993.

Deposition of Jaisingh Shivajirao Patil, Police Officer, (PW-544)

39

Page 393

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 Exh. No. 1414.

(ii) He also prepared a panchnama dated 15.03.1993 of

four sealed sample packets containing debris collected

by the experts from FSL marked as Exh. No. 1859 in the

presence of Sadashiv M. Pattanshetti (PW-549).

(iii) He also proved that he recorded FIR being C.R. No.

155/1993 marked as Exh. No. 1208.

(iv) The aforesaid articles which were seized by him were

sent to the forensic lab for examination.

(v) FSL Reports (Exh. Nos. 2604 and 2605) show the

presence of traces of High Explosive substance, viz.,

RDX on these articles.

Deposition of Sridhar M. Pandit (PW-355)

At the relevant time, he was working as GM (Technical),

Hotel Corporation of India. He deposed that he inspected

39

Page 394

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)

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 12.03.1993.

Deposition of Vaman Dhondu Sapre, Special Executive Magistrate (PW-249)

He is the person who conducted TIP on 07.06.1993 at

Santacruz Police Station in which the appellant (A-44) was

identified by PWs-17 and 18 and has proved the TIP

panchnama Exh. No. 1071 dated 07.06.1993.

Deposition of Ramesh Pandurang Bhasare (PW-74)

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 19.05.1993.

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Page 395

(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 Exhibit 389.

The eye witness at the hotel has also identified the

above cloth as the same which was worn by the appellant

(A-44) at the time of planting of suitcase bomb.

Evidence in respect of the unexploded scooter parked in front of DP Jewellers at Zaveri Bazaar:

Deposition of Shashikant Ramkumar Shukla (PW-26).

296) PW-26 is an eye witness to the incident who witnessed

the parking of the said scooter by the appellant (A-44) in

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Page 396

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 12.03.1993, he saw the appellant (A-44) quarelling

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 16.03.1993, 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

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Page 397

(vi) He also identified the appellant (A-44) in the

Identification Parade dated 04.06.1993 conducted by

Sharad Vichare, Special Executive Magistrate, (PW-

459).

Deposition of Shantaram Sakharam Sigwan (PW-27) (eye-witness).

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 12.03.1993, an explosion took place in front of the

shop of Narayandas Jewellers and there was panic in

the locality and all the shop keepers closed their shops

and everyone left for their home.

(iii) On 16.03.1993, he learnt from a feriwala that the police

have seized a scooter which was parked in front of the

shop of D.P. Jewellers.

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Page 398

(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 04.06.1993 by Sharad S. Vichare, Special

Executive Magistrate, (PW-459) and Memorandum

Panchnama Exh. No. 1461 was prepared for the same.

297) The eye witnesses 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.

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Page 399

(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)

At the relevant time, PW-547 was working as PI with LT

Marg Police Station. He deposed that:

(i) He received a message that an unclaimed scooter has

been found parked in front of DP 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 dicky 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).

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Page 400

(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 dicky. He also

noticed that the said cakes were also containing some

pallets.

(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 15.03.1993

and instructed the police constable to take the scooter

to LT Marg Police Station.

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Page 401

(x) On 10.06.1993, SI Dastagir Ghavandi (PW-552) handed

over two keys seized by him during investigation of C.R.

No. 155/1993.

(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 Exh.

No. 1868 stating that the keys found matched with all

the three locks of the scooter, i.e., dicky lock, steering

lock and the helmet-box lock.

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.

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Page 402

(iii) PW-444 was called from BDDS who successfully

diffused the bomb fitted in the front side dicky 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).

The deposition of PW-444 was recorded on

05/06.10.1998. 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 15.03.1993, 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 dicky of the scooter was opened by SI

Pandre with the help of hook and rope.

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Page 403

(ii) The dicky 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 color 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 LT 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 LT 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 nitroglycerin, both being high

explosive substances.

Deposition of Dhananjay Raghunath Daund (PW-532)

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Page 404

The deposition of PW-532 was recorded on 02.12.1999.

At the relevant time, he was a PSI attached with the Worli

Police Station. He deposed that:

(i) He arrested the appellant (A-44) on 18.05.1993 and

handed him over to PI Shri Ghavandi (PW-552), I.O. in

C.R. No. 155/1993.

(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 (Exh.

No. 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)

298) PW-81 was the sub-Dealer of scooters carrying on

business in the name of Mohan Automobiles. He deposed

that:

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Page 405

(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 @ 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 18.03.1993, 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 14.02.1993,

04.03.1993 and 11.03.1993 and he further produced

the notes Exh. Nos. 424, 424-A and 424-B respectively

of the said scooters to Inspector Homi Irani.

Deposition of Sayeed Abdul Sattar (PW-82)

PW-82 was working with Munaf Halari (AA). He had

helped him in getting loan through his friend Rahid Shaikh.

He deposed that:

40

Page 406

(i) On 10.03.1993, 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 11.03.1993, 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

12.03.1993.

(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.

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Page 407

(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)

At the relevant time, PW-452 was working with

Excellent Petroleum Company situated at J.J. Junction. He

deposed that:

(i) Munaf Halari (AA) had requirement of 3 scooters and he

had approached him on 10.03.1993 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 Abdul

Wahab @ Farid Bhai (PW 298), Scooter Dealer who was

working under the name of Nisha Sales and Services.

Deposition of Ajit Vithalrao Vanjari (PW-651)

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Page 408

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)

PW-325 was the Sub-inspector on station house duty on

15.03.1993. 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 the

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)

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

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Page 409

the LT 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.

299) 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).

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Page 410

(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 DP 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 commission of 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 Md. 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.

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Page 411

300) 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

04.06.1993 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

07.06.1993, 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 the

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.

301) 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

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Page 412

of opening the dickey with the keys recovered by PW-454

from the roof of the footwear shop does not arise.

302) Further, the prosecution submitted that the appellant

(A-44), after his arrest on 18.05.1993, made a disclosure

statement on 19.05.1993 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

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Page 413

at the instance of the appellant belonged to the scooter

laden with RDX recovered from Zaveri Bazaar.

303) 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.

304) 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.

305) We are satisfied that the prosecution has produced

sufficient evidence against the appellant (A-44) to bring

home the charges framed against him.

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Page 414

Criminal Appeal Nos. 637-638 of 2008

Asgar Yusuf Mukadam (A-10) and Shahnawaz Abdul Kadar Qureshi (A-29) ……..Appellant(s)

versus

The State of Maharashtra Thr. CBI-STF, Bombay ……..Respondent(s)

306) 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.

307) The above-said appeals are directed against the final

judgment and order of conviction and sentence dated

18.09.2006 and 19.07.2007 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 B.B.C. No. 1/1993.

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Page 415

Charges:

308) 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 (UA.E.) 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, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms 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 fire-arms, ammunitions, detonators, handgrenades 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, ammunitions 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 off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions 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

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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 12.03.1993 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 handgrenades 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) of Indian Penal Code read with Sections 3(2)(i)(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 Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(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.”

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

summarized 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 Shekadi on 3rd and 7th February, 1993; by participating in

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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) of TADA.

At head thirdly; the appellants (A-10 and A-29), planted an explosive laden Maruti Van in the compound of Plaza Cinema on 12.03.1993, 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) of 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

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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 9B(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) of 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.

309) The Designated Judge found the appellants guilty on all

the aforesaid charges. The appellants have been convicted

and sentenced for the above said charges as follows:

Conviction and Sentence:

(i) The appellants have been sentenced to death under

Section 3(3) of TADA and Section 120-B of IPC read with the

offences mentioned in the said charge. In addition, the

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appellants were also ordered to pay a fine of Rs. 25,000/-

each. (charge firstly)

(ii) 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) of

TADA. (charge secondly)

(iii) 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) of TADA. (charge thirdly)

(iv) 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 of IPC read with Section 34 of IPC. (charge fourthly)

(v) 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

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Section 307 of IPC read with Section 34 of IPC. (charge

fifthly)

(vi) 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 of IPC read with Section 34 of IPC (charge

sixthly)

(vii) The appellants have been sentenced to RI for 3 years

for the offence punishable under Section 324 of IPC read

with Section 34 IPC. (charge seventhly)

(viii) 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 of IPC read with Section 34 IPC.

(charges eighthly & ninthly)

(ix) 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

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Section 3 of the Explosive Substances Act, 1908. (charge

tenthly)

(x) 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)

(xi) The appellants have been sentenced to RI for 2 years

for the offence punishable under Section 9B(1)(b) of the

Explosives Act, 1884. (charge twelfthly)

(xii) 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) of TADA. (charge thirteenthly)

(xiii) 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

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Sections 3 and 4 read with Section 6 of the Explosive

Substances Act, 1908. (charge fourteenthly)

Evidence:

310) 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

311) 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 of IPC.

However, where the conspiracy has in fact achieved its

object and resulted in overt acts, all the conspirators in

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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)

312) Confessional statement of A-10 under Section 15 of

TADA has been recorded on 23.04.1994 (18:00 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.

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(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 6th

January, 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 @ 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 @ 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

ammunitions, explosive (Kala Sabun) and hand

grenades.

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(vi) On 10th/11th February, Yakub Abdul Razak Memon (A-1)

directed A-10 to meet him in the evening. At about

6:30-7:00 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), Md. 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) Next day, A-10 went to the 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

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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 @ Dadabhai (A-17) was to be paid Rs. 5

lacs against the landing and that the same should be

paid to him.

(viii) After Tiger’s departure, A-10 along with co-accused (A-

12) collected Rs. 5 lacs from A-97 and handed over the

said amount to A-17 at his residence in Juhu.

(ix) 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., Mohammed Rafiq @

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.

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(xi) On 9th March, A-1 directed A-10 to transfer Rs. 25 lacs

from Tiger’s account to Irani’s account and also Rs. 10

lacs 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

lacs 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 2 VIP bags, 2 rexine shoulder bags and one

briefcase from the garage at Tiger’s residence and

carried them to Room No. 17 of the 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.

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(xv) On 11th March 1993, at about 11 p.m., following the

instructions of Tiger, A-10 took two briefcases and went

to the residence of Mobina @ Bayamoosa 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 Md. Shoaib Md. 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 am. 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, 2 Maruti-800 cars

(one blue and one white), 3 new Bajaj Scooters and 2

old Bajaj Scooters, all of which were parked there laden

with black coloured chemical.

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(xvii)While returning from the 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 3 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 3 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 the Al-Hussaini Building, Mahim around 11:45-

12:00 o’ clock at night.

(xviii) At the Al-Hussaini Building, Anwar Theba (AA), A-44

and A-12 joined A-10 within an hour. A-10 saw that

Anwar picked up aluminum rod like pencils which were

lying on the back seat of the vehicle and inserted them

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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

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while those of Maruti Van bearing 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 the 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 the 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)

Confessional statement of A-29 under Section 15 of

TADA has been recorded on 18.05.1993 and 21.05.1993 by

Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III,

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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 the 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 01.02.1993, Javed Chikna asked A-29

to accompany him to bring the smuggled goods of Tiger

Bhai. He along with Javed, Usman, Nasir Dhakla and

Shafi left in a blue coloured Commander Jeep. On the

way, they met Riyaz along with 3 boys, namely, Munna,

Karimulla and Akbar who were in a Maruti Van near a

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Hotel. Shafi and Munna discussed something and the

Maruti Van followed their jeep.

(v) A-29 was acquainted with Tiger, who met there 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

ammunitions and explosives at the 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.

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(x) A-29 reached Dubai along with Irfan Chaugule and

Abdul Akhtar. They met Gul Mohammed @ Gullu Noor

Mohammed Shaikh (A-77) at the Dubai Airport and were

received by Ayub Memon. Anwar, Haji Yakoob, Nasir

Dhakla, 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 alongwith Yakub

Yeda, Bashir Muchhad, Anwar, Nasir Dhakla, Gul Mohd.,

Mohammed Rafiq and Irfan Chougule for receiving

training in arms and ammunitions. 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

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Officers for about 10 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 any one 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 11.03.1993, A-29 went to the flat of

Tiger Memon and received Rs. 5,000/- from him. He

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also noticed that a number of boys were already

present there.

(xviii) On 12.03.1993, A-29 was present in the 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

handgrenades. 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 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 Bazar side.

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(xx) After the bomb blast, A-29 fled to Rampur and was later

arrested by police from Indore.

313) 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 the

Plaza Cinema which later exploded killing 10 persons and

injuring 36 others.

Confessional Statements of co-accused:

Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)

314) Confessional statement of A-32 under Section 15 of

TADA has been recorded on 16.05.1993 (11:25 hrs) and

19.05.1993 (17:30 hrs) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. In the above said

confessional statement, the following references have been

made to the appellants (A-10 and A-29):

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(i) On 11.02.1993, A-10 went to the 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 10.03.1993 at

the residence of Mobina (A-96).

(iv) A-29 actively participated in the preparation of vehicle

bombs in the Al-Hussaini building compound in the

intervening night between 11/12.03.1993 by using RDX

which had landed at Shekhadi.

Confessional Statement of Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46)

Confessional statement of A-46 under Section 15 of

TADA has been recorded on 21.04.1993 (19:00 hrs) and

24.04.1993 (21:25 hrs) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. In the abovesaid

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confessional statement, the following references have been

made to the appellants:

(i) A-10 worked in the office of Tiger Memon.

(ii) On 12th February, 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 17th February, 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)

Confessional statement of A-57 under Section 15 of

TADA has been recorded on 19.04.1993 (12:00 hrs.) by

Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III,

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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 the Al-Hussaini Building on

12.03.1993.

(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 Kadar Kewal @ Nasir Dhakla (A-64)

Confessional statement of A-64 under Section 15 of

TADA has been recorded on 22.01.1995 and 24.01.1995 by

Shri HC Singh (PW-474), the then Superintendent of Police,

CBI/SPE/STF, New Delhi. In the abovesaid confessional

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statement, the following references have been made to the

appellants:

(i) A-10 was present at the Al-Hussaini Building

compound in the intervening night between

11th/12th March, 1993 when RDX was being filled in

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

10.03.1993 at the residence of Mobina.

(vi) A-29 actively participated in preparation of vehicle

bombs at the Al-Hussaini Building compound in the

intervening night between 11/12.03.1993 by using

RDX which had landed at Shekhadi.

Confessional Statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100)

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Page 442

Confessional statement of A-100 under Section 15 of

TADA has been recorded on 15.04.1993 (22:30 hrs.) and

17.04.1993 (17:00 hrs.), by Sanjay Pandey (PW-492), the

then DCP, Zone-VIII, Bombay. In the above said confessional

statement, the following references have been made to the

appellants:

(i) A-29 participated in the training of fire arms and

ammunitions 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 11/12.03.1993

along with other co-accused.

Confessional Statement of Mohammed Shoaib Mohammed Kasam Ghansar (A-9)

Confessional statement of A-9 under Section 15 of

TADA has been recorded on 19.04.1993 (13:10 hrs.) and

22.04.1993 (00:30 hrs.) by Shri Prem Krishna Jain (PW-189),

the then DCP, Zone X, Bombay. In the above said

confessional statement, the following references have been

made to the appellant (A-10):

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Page 443

(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

11.03.1993 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 the Al-Hussaini

building after dropping Tiger on 11.03.1993. At

that time, 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 12.03.1993

and he dropped the co-accused sitting in the Van

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Page 444

at a taxi stand to go to Hotel Sea-Rock, Bandra

and Centaur Hotel near Airport.

(viii) A-10 gave a scooter to A-9 for parking the same at

Zaveri Bazaar intersection.

(ix) A-9 met A-10 on 13.03.1993 after the blasts.

Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)

Confessional statement of A-12 under Section 15 of

TADA has been recorded on 18.04.1993 (14:00 hrs.) and

21.04.1993 (06:50 hrs.) by Prem Krishna Jain (PW-189), the

then DCP, Zone X, Bombay. In the above said 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.

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Page 445

(iii) On 15th/16th February, 1993, A-10 along with A-12

went to the residence of Tiger where they along

with others were paid Rs.10,000/- by Shafi.

(iv) On 11th March, 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 5 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

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Page 446

inserted three timer pencils in each of the said

suitcases.

(viii) After the blast, on 13.03.1993, 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)

Confessional statement of A-15 under Section 15 of

TADA has been recorded on 07.05.1993 (12:30 hrs.) and

09.05.1993 (13:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. In the above said

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.

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Page 447

(iv) A-10 was seated in the Maruti Van No. MFC 1972

in the morning of 12.03.1993 along with A-15.

Confessional Statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)

Confessional statement of A-17 under Section 15 of

TADA has been recorded on 18.04.1993 (00:15 hrs.) and

20.04.1993 (02:50 hrs.) by Prem Krishna Jain (PW-189), the

then DCP, Zone X, Bombay. In the above said 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)

Confessional statement of A-44 under Section 15 of

TADA has been recorded on 26.05.1993 (16:55 hrs.) and

22.05.1993 (10:00 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:

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Page 448

(i) On 12.03.1993, 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 12.03.1993

at Tiger’s house.

Confessional Statement of Baya Musa Bhiwandiwala @ Mobina (A-96)

Confessional statement of A-96 under Section 15 of

TADA has been recorded on 30.04.1993 (18:00 hrs.) and

02.05.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. In the above said

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 11.03.1993.

Confessional Statement of Mulchand Sampatraj Shah @ Choksi (A-97)

Confessional statement of A-97 has been recorded on

14.05.1993 (20:55 hrs.) and 18.05.1993 (16:15 hrs.) by

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Page 449

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 @ 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 Mohd. Yusuf Pawale (A-16)

Confessional statement of A-16 under Section 15 of

TADA has been recorded on 20.05.1993 (16:30 hrs.) and

22.05.1993 (16:45 hrs.) by Sanjay Pandey (PW-492), the

then DCP, Zone-VIII, Bombay. In the above said confessional

statement, the following references have been made to A-

29:

(i) On 08.02.1993, A-16 along with others (including

A-29) went to the spot of landing and assisted

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Page 450

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 fire arms 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 Mohd. Yusuf Shaikh (A-23)

Confessional statement of A-23 under Section 15 of

TADA has been recorded on 20.05.1993 (10:00 hrs.) and

22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. In the above said

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 @ Mohammed Ali Khan @ Manojkumar Bhanwar Lal Gupta (A-24)

Confessional statement of A-24 has been recorded on

30.04.1993 (16:15 hrs.) and 09.05.1993 (19:00 hrs.) by

Sanjay Pandey (PW-492), the then DCP, Zone III, Bombay. In

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Page 451

the above said 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 ammunitions and explosives

were opened under the supervision of Tiger Memon.

Confessional Statement of Abdul Khan @ Yakub Khan Akhtar Khan (A-36)

Confessional statement of A-36 under Section 15 of TADA

has been recorded on 19.05.1993 (17:40 hrs.) and

21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. In the above said

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 11.03.1993.

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Page 452

Confessional Statement of Feroz @ Akram Amani Malik (A-39)

Confessional statement of A-39 under Section 15 of TADA

has been recorded on 19.04.1993 (22:30 hrs.) and

23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the

then DCP, Zone V, Bombay. In the above said confessional

statement, A-39 refers to A-29 that he received training in

Pakistan.

Confessional Statement of Nasim Ashraf Shaikh Ali Barmare (A-49)

Confessional statement of A-49 under Section 15 of

TADA has been recorded on 16.05.1993 (9:30 hrs) and

18.05.1993 by Shri Krishna Lal Bishnoi (PW-193), the then

DCP, Zone III, Bombay. In the above said 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 ammunitions.

(ii) In Dubai, they all were given inflammatory speech by

Tiger Memon to take revenge against the atrocities

upon the Muslims.

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Page 453

(iii) A-29 left Dubai along with other co-accused.

Confessional Statement of Salim Rahim Shaikh (A-52)

Confessional statement of A-52 under Section 15 of TADA

has been recorded on 15.04.1993 and 18.04.1993 by Mr.

P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. In the

above said 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 06.03.1993, 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. 5,000/- 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 11.03.1993, A-52 saw several persons

at Tiger’s flat at the Al-Hussaini building including A-29.

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Page 454

Confessional Statement of Gul Mohd. @ Gullu Noor Mohd. Shaikh (A-77)

Confessional statement of A-77 under Section 15 of TADA

has been recorded on 17.04.1993 (14:10 hrs.) and

19.04.1993 (18:00 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)

Confessional statement of A-94 under Section 15 of

TADA has been recorded on 14.05.1993 (18:30 hrs.) and

16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then

DCP, Zone III, Bombay. In the above said 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.

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Page 455

Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh A-98

Confessional statement under Section 15 of TADA has

been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993

(11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then

DCP, Zone III, Bombay. In the above said confessional

statement, the following references have been made to A-

29:

(i) A-29 joined him for training in Pakistan.

(ii) On 01.03.1993, 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.

315) 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 willfully participated

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Page 456

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.

316) It is also clear that the confessions made by the

appellants as well as by co-accused are truthful and

voluntary and were made without any coercion. All

safeguards enumerated under Section 15 of TADA and the

rules framed thereunder have been duly complied with while

recording the confessions of the appellants.

Retraction Statements:

317) 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 of TADA. In reply to the above contention,

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Page 457

learned senior counsel for the 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 Mohammed Usman Jan Khan (PW-2) (Approver)

318) PW-2, in his deposition, implicates the appellants and

withstood the 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

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Page 458

were involved in planning, conspiracy, training, landing

as well as in blasting of bombs.

(iii) A-29 participated in the landing of arms and

ammunitions at Shekhadi.

(iv) On 11.02.1993, when he went to meet Tiger Memon at

Al-Hussaini building, A-10 took him to the Tiger’s flat at

5th floor.

(v) A-29 participated in the training in Pakistan.

(vi) When he (PW-2) returned after surveying the Chembur

Refinery on 11.03.1993, he noticed several boys with

Tiger Memon including the appellants at that time.

The said witness 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. 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

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Page 459

the 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.

319) 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 Exhibit 25. It is relevant to

mention that Exhibit 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

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Page 460

Evidence of Sanjay Salunke (PW-3) and Sanjay Mangesh Salaskar (PW-4)

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 12.03.1993, 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, alongwith 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

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Page 461

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 theater.

(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.

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Page 462

(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.

320) 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.

321) 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

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Page 463

time of his deposition and also in the test identification

parades dated 21.03.1993 and 25.04.1993, conducted by

SEM, PW-462 and in parade dated 14.05.1993 conducted by

SEM PW-469. Thus, the identification has been duly

established by the eye witnesses.

322) 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 above

said 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:

323) 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.

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Page 464

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 Theatre proved the death

of the said victim and also deposed about the charge being

taken by him of the dead body on 13.03.1993 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 13.03.1993 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

above said victims.

324) Ramesh Naik (PW-305), the Supervisor of Plaza Cine

House deposed regarding hearing a loud explosion on

12.03.1993, at about 03:14 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

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Page 465

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.

325) 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 13.03.1993, he

registered accidental death of Shinde, Vasta, Nissar, Siddiqui

and sent a letter to Coroner for effecting post-mortem etc.

under panchnama Exh. 1894 and took charge of 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.

326) 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

Exh. 1918 regarding the crater being formed in the area of

car parking, collapse of northern compound wall, burnt

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Page 466

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.

327) It is contended on behalf of the appellants with respect

to the deposition of PW-305 that on 12.03.1993, 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 the Bombay Police prepared the

Panchnama only on 14.03.1993 whereas the offence was

committed on 12.03.1993, and therefore, there has been

delay in recording 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.

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Page 467

328) 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. A

perusal of the deposition of PW-557 reveals that he has duly

inspected the scene of crime and carefully drawn up the

panchnama (Exh. 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 the 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

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Page 468

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-385 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.

329) 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, prosecution

pointed out that A-10 has been duly and properly identified

as the driver of the said Maruti van by the eye-witnesses,

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.

330) Chordekar (PW-361) has proved the damage caused to

the MTNL (public property). FSL Reports Exhs. 1952 to 1955

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Page 469

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.

331) In view of the above said 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 eye-witnesses, viz., PWs-3 and 4 along

with other witnesses duly examined by the prosecution, the

charges framed against the appellants have been duly

proved.

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Page 470

Criminal Appeal No.365 of 2008

Mohammed Shoeb Mohammed Kasam Ghansar (A-9) ….. Appellant(s)

vs

The State of Maharashtra, Through STF,CBI Mumbai …. Respondent(s)

**********

332) 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.

333) The present appeal is directed against the final

judgment and order of conviction and sentence dated

14.09.2006 and 19.07.2007 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 B.B.C. No. 1/1993.

Charges:

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Page 471

334) 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 (UA.E.) 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, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms 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 fire-arms, ammunitions, detonators, handgrenades 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, ammunitions 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 off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions 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 12.03.1993 were

47

Page 472

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 handgrenades 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) of Indian Penal Code read with Sections 3(2)(i)(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 Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(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.”

In addition to the above said 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) of 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 the 3rd and 7th of February, 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 12.03.1993, at Sahar Airport; and

iii) actively participated in preparation of vehicle bombs in the night intervening 11th/12th March, 1993 at Al-Hussaini Building.

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Page 473

At head thirdly; on 12.03.1993, 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)(ii) of 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.

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Page 474

At head twelfthly; the appellant (A-9), in pursuance of the conspiracy and in contravention of 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 12.03.1993, 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. Mohammed 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 intent to commit the terrorist act, committed an offence punishable under Section 3(3) of 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.

335) 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 above said charges as

follows:

Conviction and Sentence: (i) The appellant was found guilty for 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 TADA and Section 120-B of IPC read with

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Page 475

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)

(ii) 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) of TADA. (charge

secondly)

(iii) The appellant has been sentenced to death along with

a fine of Rs.25,000/- for the offence punishable under

Section 3(2)(i) of TADA. (charge thirdly)

(iv) 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)

(v) 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)

(vi) 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)

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Page 476

(vii) The appellant has been sentenced to RI for 3 years for

the offence punishable under Section 324 IPC. (charge

seventhly)

(viii) 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)

(ix) 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)

(x) 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)

(xi) 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)

(xii) The appellant has been sentenced to RI for 2 years for

the offence punishable under Section 9B(1)(b) of the

Explosives Act, 1884. (charge twelfthly)

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Page 477

(xiii) 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) of TADA. (charge

thirteenthly)

(xiv) 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:

336) 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 337) As mentioned above, a common charge of conspiracy

has been framed against all the accused persons and in

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Page 478

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 - Mohammed Shoeb Mohammed Kasam Ghansar (A-9)

338) Confessional statement of the appellant (A-9) under

Section 15 of TADA has been recorded on 19.04.1993 and

22.04.1993, 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 11.03.1993, 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.

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Page 479

(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 12.03.1993, 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 the Al-Hussaini

building on the night of 11.03.1993 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 the Al-Hussaini

Building.

(vi) On 12.03.1993, the appellant (A-9), accompanied A-10

and went to the residence of A-12 in order to pick him

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Page 480

up and, thereafter, they went to the Al-Hussaini

Building in a Maruti Van.

(vii) 3 VIP Bags were collected by A-12 and A-10 from the

garage at the 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 12.03.1993, 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 3 VIP suit cases

by Anwar Theba (AA).

(ix) On 12.03.1993, 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 the 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-

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Page 481

Hussaini compound. He was present when Mustaq (A-

44) left with one of the new scooters.

(xi) On the very same day, i.e., 12.03.1993, 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 dicky 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.

339) 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 above stated 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

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Page 482

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:

340) 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

summarized hereinbelow:

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Page 483

Confessional Statement of Asgar Yusuf Mukadam (A-

10)

Confessional statement of A-10 under Section 15 of

TADA has been recorded on 20.04.1993 and 23.04.1993

(18:00 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 11.03.1993, 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 the 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

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Page 484

(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)

Confessional statement of A-11 under Section 15 of

TADA has been recorded on 15.04.1993 and 18.04.1993 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 11.03.1993 along with

other co-accused, namely, Bashir Ahmed Usman Gani

Khairulla (A-13), Parvez Nazir Ahmed Shaikh (A-12), Md.

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:

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Page 485

“…..After sometime Shafi, Anwar, Javed Chikna, Bashir, Parvez, Shoeb and 10/12 boys assembled there. All people came in the garage of Al-Hussaini Building and all of them filled chemical @ black soap in a number of vehicles….”

Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)

Confessional statement of A-12 under Section 15 of

TADA has been recorded on 18.04.1993 and 21.04.1993

(06.50 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 the Al-Hussaini

building on the night of 11.03.1993 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

03.02.1993.

(ii) The chemical was packed in cardboard boxes and

pieces of iron were also added to it.

(iii) In the morning of 12.03.1993, 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

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Page 486

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 to the house of Anwar taking the three Suit cases (big briefcase) which were kept in the garage, by Maruti van, where we met Anwar and Mushtaq whose hair were 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 13.03.1993 and discussed about the blasts

that had occurred on 12.03.1993.

Confessional Statement of Imtiyaz Yunusmiyan Ghavate (A-15)

Confessional statement of A-15 under Section 15 of

TADA has been recorded on 07.05.1993 and 09.05.1993

(13.30 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 12.03.1993 and

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Page 487

all of them drove to the house of Anwar Theba (AA) to

collect the three suitcases.

(ii) On 12.03.1993, A-9, along with A-10, came to the 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 dicky 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 12.03.1993.

Confessional Statement of Mohd. Mushtaq Moosa Tarani (A-44)

Confessional statement of A-44 under Section 15 of

TADA has been recorded on 26.05.1993 and 22.05.1993

(10.00 hrs.), by Shri K.L. Bishnoi (PW-193), the then DCP,

Zone III, Bombay. In his confessional statement, he stated

that on 12.03.1993, A-9 and A-15 came to the residence of

Anwar Theba (AA) in a Maroon coloured car driven by A-10.

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Page 488

341) 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 the Al-Hussaini building in

the night of 11.03.1993 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 the 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 traveling 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

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Page 489

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 03:05 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.

342) 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

of TADA and the rules framed thereunder have been duly

complied with while recording the confessions of the

appellants.

Retraction Statements:

343) 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

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Page 490

subsequently, and therefore, it is not safe to base the

conviction on the said confessional statements under Section

15 of 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:

344) 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 emerge

from the deposition of witnesses incriminating the appellant

have been enumerated below:

Eye-witnesses:

Deposition of Badrinath Bishansingh Sharma (PW-29)

(i) PW-29 is a hawker at Zaveri Bazaar. He is an eye-

witness to the blast. He testified that on 12.03.1993,

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

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Page 491

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 18.03.1993 which was

seized by seizure Panchnama Exh. No. 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.

(v) PW-29 identified the appellant (A-9) in the identification

parade held at Sacred Hearts School, Worli on

25.03.1993 as the person who parked the said scooter

on 12.03.1993 at Zaveri Bazaar.

(vi) PW-29 again identified the appellant (A-9) on

13.05.1993 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

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Page 492

Zaveri Bazaar. 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 12.03.1993. 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 25.03.1993 and 13.05.1993 as the person who

parked the scooter at Zaveri Bazaar.

Deposition of Amit Champalal Acharya (PW-36)

(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

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Page 493

scooter in front of the shop and fell down. One

passerby 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 13.05.1993 at the

office of CID in Crawford Market.

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 opportunity twice. 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 13.05.1993. The identification parade took place

shortly after the blasts but the identification in court took

place only on 12.01.1996, which is almost after three years,

thus it is possible that due to passage of time PW-36 was

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Page 494

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. The prosecution has brought to our notice that

the identification parade dated 25.03.1993 was conducted at

Sacred Hearts High School by Ram S. Bhosale (PW-460), who

conducted the parade in compliance with the provisions of

the Code. PW-460 also recognized Exh.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)

Special Executive Magistrate (PW-469) conducted the

identification parade in respect of A-9. Exh. 1510 is the

memorandum of the TIP dated 13.05.1993. The following

information is available in the said memorandum:-

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Page 495

(i) TIP memorandum records that a TIP was

conducted by SEM Shri Thakur (PW-460) on

13.05.1993.

(ii) The first witness – PW-29 identified the appellant

as the person who parked the scooter at Zaveri

Bazaar on 12.03.1993.

(iii) The second witness – PW-36 also identified the

appellant as the person who parked the scooter at

Zaveri Bazaar on 12.03.1993.

Evidence with regard to recovery of the keys of the Scooter:

Deposition of Narsingh Tukaram Sherkhan (PW-556)

345) PW-556, a police officer, recorded the Disclosure

Statement made by the appellant on 21.03.1993 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”

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Page 496

The said statement was recorded vide Disclosure memo

Exh.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 (Exh. 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 Mohammed Shoeb 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 Bazar and after the jeep reached at Johar chowk via Mohammed 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 the Mohammed Ali Road·and came to the open space in front of the office of 'Time Travel & Tour' on the Western side foot path and on coming at the said place, pointed at a gutter on Mohammed Ali Road, situated on the opposite side of the 'Time Travel & Tour' and the accused also pointed that the key was thrown therein. The said gutter is at a distance of 10 feet 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 feet. The accused push aside the cement lid on the said gutter and dipped his hand in the said gutter and removed a 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.

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Page 497

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 the 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 12.03.1993 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)

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 21.03.1993 and

disclosed the location of the keys of the scooter.

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Page 498

346) 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 infact

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.

347) 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:

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Page 499

348) 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

10.03.1993, and the 3rd 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)

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Page 500

PW-82, who was an employee of Munaf Halari (AA),

stated that two new scooters were purchased on 11.03.1993

from the garage of PW-299 in Chor Bazar, Bombay and one

of them was of blue color. 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)

(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 10.03.1993 and that the witness referred

them to Asgar Ali Masalewala (PW-299).

Deposition of Asgar Ali Tahir Ali Masalewala (PW-299)

(i) PW 299 carried on the business of sale/purchase of

scooters.

(ii) On 10.03.1993, Akhtar came to PW-299 with a request

to purchase scooters. PW-299 obtained the delivery of

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Page 501

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 10.03.1993. On 11.03.1993, 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)

(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 early days of

1993 three of which were of stone, blue and cosmic

colour 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)

(i) PW-651 was an employee at Vasan Auto.

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Page 502

(ii) He recognized the challans issued in respect of

purchase of Bajaj Scooters for delivery to M/s Mohan

Auto in 1993.

The prosecution pointed out that the above depositions and

the documents clearly establish the chain of purchase of

scooters used in the blasts on 12.03.1993.

Investigation, Recoveries and FSL Reports:

349) The place of incident, i.e., where the blast took place at

Zaveri Bazaar was inspected by Narayan Yedu Rajguru (PW-

554) vide panchnama Exh. 1908. The panchnama described

the effect of the explosion and vide this panchnama debris

and other articles were seized by the I.O. from the place of

occurrence. PW-554 also took samples from the place of

occurrence in the presence of FSL Experts vide panchnama

Exhibit 1909.

Deposition of Narayan Yedu Rajguru (PW-554)

In his deposition dated 29.12.1999, he deposed that:

(i) He reached the site within 15 minutes of the blast.

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Page 503

(ii) He prepared a panchnama Exh.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

13.03.1993 and a panchnama (Exh. 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.

The seized articles were sent to the FSL for examination vide

Exh. Nos. 1910 and 1911. The FSL Reports pertaining to the

examination of these samples are Exh. Nos. 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:

350) Nisar Ahmed Kankarbhai Shaikh (PW-550) has proved

the deaths and injuries caused to various persons due to the

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Page 504

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 Exhibit 1925.

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Page 505

The following doctors have proved the injury certificates

(Exh. Nos. 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).

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.

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 12.03.1993 and;

(ii) Radheshyam Mangalchand Poddar (PW-396)

deposed about the death of his son due to the blast

that took place at Zaveri Bazaar.

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Page 506

The prosecution has also established the damage caused to

various properties due to the bomb blast at Zaveri Bazaar

from the panchnama Exh. No. 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.

351) In view of the above said confessional statement of the

appellant (A-9), the confessional statements of other co-

accused persons as also the eye-witnesses PWs-29 and 36,

along with other witnesses duly examined by the

prosecution, the contentions raised by 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.

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Page 507

Criminal Appeal Nos. 864-865 of 2008

Abdul Gani Ismail Turk (A-11) ... Appellant(s)

versus

The State of Maharashtra Through STF, CBI Bombay ... Respondent

********

352) 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.

353) These appeals have been filed against the final

judgment and order of conviction and sentence dated

19.09.2006 and 18.07.2007 respectively, whereby the

appellant has been convicted and sentenced to death by the

Designated Court under TADA Bombay Bomb Blast Case,

Greater Bombay in BBC No. 1/ 1993.

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Page 508

Charges:

354) 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 (UA.E.) 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, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms 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 fire-arms, ammunitions, detonators, handgrenades 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, ammunitions 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 off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions 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

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Page 509

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 12.03.1993 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 handgrenades 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) of Indian Penal Code read with Sections 3(2)(i)(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 Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(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.”

In addition to the abovesaid principal charge of

conspiracy, the appellant was also charged on other counts

which are summarized as under:

At head Secondly:- The accused committed an offence punishable under Section 3 (3) of TADA (P) 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 terriorist acts. (c) He received training in handling of arms, explosives at village Sandheri and Borghat.

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Page 510

(d) He participated in preparation of vehicle bombs in the night of 11th/12th March 1993.

At head Thirdly:- He planted the explosive laden Jeep No. MP-09-S-0070 in front of Udipi Hotel in Century Bazar, 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 Section 3(2)(i)(ii) of TADA.

At head Fourthly:- By causing the above mentioned explosion which resulted into death of 88 persons, he committed an offence punishable under Section 302 IPC.

At head Fifthly:- By causing the above mentioned 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 above said 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.

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Page 511

At head Twelfthly:- By possessing the explosives without valid licence that caused the aforesaid explosions, he committed an offence punishable under Section 9B (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:

355) 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:

(i) to suffer punishment of death along with a fine of

Rs.25,000/- under Section 3(3) of TADA and Section

120-B of IPC read with the offences mentioned in the

said charge. (charge firstly).

(ii) 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) of TADA

(charge secondly).

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Page 512

(iii) to suffer punishment of death along with a fine of

Rs.25,000/- for the offence punishable under Section

3(2)(i) of TADA (charge thirdly).

(iv) to suffer punishment of death along with a fine of

Rs.25,000/- for the offence punishable under Section

302 IPC (charge fourthly).

(v) to suffer RI for life along with a fine of Rs.25,000/-, in

default, to further undergo RI for 6 months for the

offence punishable under Section 307 IPC (charge

fifthly).

(vi) 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).

(vii) to suffer RI for 2 years for the offence punishable under

Section 435 IPC (charge eighthly).

(viii) to suffer RI for 7 years along with a fine of Rs.25,000/-,

in default, to further undergo RI for 6 months for the

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Page 513

offence punishable under Section 436 IPC (charge

ninthly).

(ix) to suffer RI for 10 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 of the Explosive

Substances Act,1908 (charge tenthly).

(x) to suffer 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 4(b) of the Explosive

Substances Act, 1908 (charge eleventhly).

(xi) to suffer RI for 2 years for the offence punishable under

Section 9B(1)(b) of the Explosives Act, 1884 (charge

twelfthly).

(xii) 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:

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Page 514

356) 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 eye

witnesses; and

(iv) documentary evidence.

Conspiracy 357) 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 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 - Abdul Gani Ismail Turk (A-11)

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Page 515

358) Confessional statement of the appellant (A-11) under

Section 15 of TADA has been recorded on 15.04.1993, 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), Mohammed

Rafiq @ 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 @ Choksi (A-97) of Zaveri Bazaar.

(iv) He took part in landings of silver at Mhasla,

Shekhadi where Jeeps of Raju Laxmichand Jain @

Raju Kodi (A-26) were used for transportation.

(v) On 27/28 January, on being called by Shafi, he

visited the Al-Hussaini Building, where Tiger,

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Page 516

Anwar Theba (AA), Mohammed Rafiq @ Rafiq Madi

Musa Biyariwala (A-46), Imityaz 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 27/28 January, 1993, he left for Mhasla

alongwith Tiger, Anwar Theba (AA), Imtiyaz Yunus

Miyan Ghavate (A-15), Shafi, Mohammed Rafiq @

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 alongwith co-accused.

(viii) He stayed along with others at Hotel Big Splash,

Alibaugh on 31.01.1993 where other gang

members also joined them.

(ix) On 02/03.02.1993, late at night, he alongwith co-

accused Imtiyaz Yunus Miyan Ghavate (A-15) and

other 4-5 persons went to Waghani Tower by jeep.

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Page 517

(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 ammunitions 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 ammunitions from the conversation of

co-accused. He knew that this was being done to

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Page 518

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 3

bags containing wire bundles and bullets to him.

He (A-11) parked the jeep there.

(xvi) He visited Tiger Memon’s (AA) house after

04.02.1993 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 @ Dawood Taklya Mohammed

Phanse @ 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

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Page 519

‘black soap’ was the same material which was

brought at Tower on 03.02.1993.

(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 07.03.1993, 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 08.03.1993, 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

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Page 520

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 3 other co-

accused, out of them, one was Bashir Ahmed

Usman Gani Khairulla (A-13) and waited at Hotel

Vasava for Tiger as per his instructions. Tiger

Memon, Javed Chikna (AA), Sharif Abdul Gafoor

Parkar @ 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

Sandheri.

(xxviii) He accompanied the co-accused to Sandheri 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

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Page 521

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 Maruti van was used for carrying

RDX filled suit cases 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 5 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 2 new scooters to the Al-Hussaini building.

He again brought one more scooter with Shafi.

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Page 522

(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.

359) 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.

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Page 523

360) 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

ignots. On 27/28 January, he went to take delivery of arms

and ammunitions and explosives along with other 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

02/03.03.1993 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

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Page 524

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 ammunitions, which in his words was

“to take revenge of the suffering of Muslims”.

361) It has also been contended on behalf of the appellant

that Section 15 of 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. The questions that were asked while recording

the first part of the confession were:

“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?

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Page 525

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.”

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 15.4.93, 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?

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Page 526

Ans. Yes.”

The above quoted 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.

362) 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.

363) 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

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Page 527

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.

364) The said confession was sought to be retracted on

11.01.1994. 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 pin point the reason behind the

failure of concerned accused to make any complaint to the

authority- higher police officers or any other authority

including 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

retraction was not made at the first available opportunity by

the accused person. After arrest, the accused persons were

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Page 528

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 of TADA have been complied

with. Hence the confession of the appellant (A-11) is

admissible as substantive evidence.

Confessional Statement of co-accused:

365) 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 of TADA, have also discussed

the role played by the appellant (A-11) in the conspiracy.

Confessional statement of Mohammed Shoaib Mohammed Kasam Ghansar (A-9)

Confessional statement of A-9 under Section 15 of

TADA has been recorded on 19.04.1993 and 22.04.1993 by

Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay.

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Page 529

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)

Confessional statement of A-10 under Section 15 of

TADA has been recorded on 23.04.1994 (18:00 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.

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Page 530

(ii) A-11, alongwith 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

alongwith 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 blast.

Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)

Confessional statement of A-12 under Section 15 of

TADA has been recorded on 18.04.1993 (14:00 hrs) and

21.04.1993 (06:50 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.

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Page 531

(iii) A-11 used to attend Hawala transactions of Tiger

alongwith other associates and also used to help him in

his landing operations at Shekhadi Coast.

(iv) A-11 went to Shekhadi Coast alongwith other associates

to help Tiger in the landing of arms and ammunitions

and explosives, which was delayed and effected on

03.02.1993, 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 alongwith other associates in

landing at Shekhadi in the second week of Febuary,

1993 and transportation of the consignments to the

Tower and thereafter to Bombay.

(vi) A-11 was present in the Al Hussaini building even after

the departure of Tiger Memon.

(vii) On the night of 11.03.1993, A-11 filled the chemical

into the vehicles parked in the garage at the Al-Hussaini

Building.

366) It has been contended by learned counsel for the

appellant that from the confession of A-12, it can be inferred

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Page 532

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

the Al Hussaini building even after the departure of Tiger

Memon in the early hours of 12.03.1993. This fact

establishes that there was no coercion and threat and the

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Page 533

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)

Confessional statement of A-13 under Section 15 of

TADA has been recorded on 16.05.1993 and 18.05.1993, 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 Sandheri.

(ii) He was asked by Tiger to take out one gun along with

its rounds and hand-grenades for training purpose at

Sandheri.

Confessional statement of Imtiaz Yunus Miya Ghavate (A-15)

Confessional statement of A-15 under Section 15 of

TADA has been recorded on 07.05.1993 (12:30 hrs) and

09.05.1993 (13:30 hrs) by Shri Krishan Lal Bishnoi (PW-193),

the then DCP, Zone III, Bombay. In his confessional

statement, the following facts have emerged:

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Page 534

(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 23rd/ 24th January 1993 and then took him

to his residence.

(iii) He participated in the landing and transportation of

smuggled arms and ammunitions at Shekhadi.

(iv) He transported the arms and explosives from Waghani

Tower to Bombay in a Jeep.

Confessional statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)

Confessional statement of A-17 under Section 15 of

TADA has been recorded on 18.04.1993 and 20.04.1993, by

Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay.

He referred to the role of A-11 as follows:-

(i) On 07.02.1993, 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.

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Page 535

(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, handgrenades and rifles were

taken out for firing at Varad Ghat beyond Mahad.

(iv) The appellant (A-11) was present along with A-17 at the

foot-hill when co-accused were doing the firing practice.

Confessional statement of Suleman Mohd. Kasam Ghavate (A-18)

Confessional statement of A-18 under Section 15 of

TADA has been recorded on 18.04.1993 (13:00 hrs) and

01.05.1993 (20:30 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 05.02.1993, the appellant (A-11) accompanied A-18

and A-28 and went to Mhasla in a Tempo bearing No.

MMP- 4799 and on 06.02.1993 he met Dawood Taklya

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Page 536

(A-14) and Dadabhai (A-17) at Mhasla. He helped in

loading 59 to 63 packets in the tempo. He 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 08.02.1993 or 09.02.1993, he met A-18 at Mahad

when he was with Tiger and others.

(iv) He was also present at Mhasla Tower alongwith others.

Confessional statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)

Confessional statement of A-23 under Section 15 of

TADA has been recorded on 20.05.1993 (10:00 hrs) and

22.05.1993 (10:00 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 ammunitions (a

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Page 537

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)

Confessional statement of A-24 under Section 15 of

TADA has been recorded on 30.04.1993 (16:15 hrs) and

09.05.1993 (19:00 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 Syed Abdul Rehman Kamruddin Syed (A-28)

Confessional statement of A-28 under Section 15 of

TADA has been recorded on 23.04.1993 (17:00 hrs) and

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Page 538

01.05.1993 (23:30 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 05.02.1993, the appellant (A-11), along with A-18

and A-28, proceeded in a vehicle from Mahim to

Mhasala.

(iii) At Mhasala, 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)

Confessional statement of A-29 under Section 15 of

TADA has been recorded on 18.05.1993 (18:30 hrs) and

21.05.1993 (14:45 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

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Page 539

is further established that Gani (A-11) had driven the jeep

which was carrying the smuggled goods.

Confessional statement of Mohd. Rafique Musa Miariwala @ Rafiq Madi (A-46)

Confessional statement of A-46 under Section 15 of

TADA has been recorded on 21.04.1993 (19:00 hrs) and

23.04.1993 (21:25 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 03.02.1993 after the delay of 2-3 days and

then arranged for transport along with A-17 and others

for its services at the Tower.

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Page 540

(iv) A-11 reached the Tower in a Commander Jeep and

exchanged his vehicle with A-46.

Confessional statement of Sahikh Ali Shaikh Umar (A-

57)

Confessional statement of A-57 under Section 15 of

TADA has been recorded on 19.04.1993 (12:00 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 other co-accused.

(ii) A-11 was seen on 10.03.1993 after a meeting took

place in a flat at Bandra.

(iii) A-11 was present in the flat of Tiger Memon at the Al

Hussaini building on the night of 11.03.1993 and then

in the garage where the filling was being done.

Confessional statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)

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Page 541

Confessional statement of A-64 under Section 15 of

TADA has been recorded on 22.01.1995 and 24.01.1995, by

Shri HC 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 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,

revolver, magazines and cartridges.

(v) The appellant participated in the first landing at

Shekhadi.

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Page 542

(vi) A-11 also participated in the second landing at

Shekhadi.

(vii) He was present at the Al-Hussaini Building compound

during the preparation of vehicle bombs by using RDX

in the night of 11/12.03.1993 which had landed at

Shekhadi.

Confessional statement of Gulam Hafiz s/o Suleman Shaikh @ Baba (A-73)

Confessional statement of A-73 under Section 15 of

TADA has been recorded on 15.05.1993 (22:05 hrs) and

17.05.1993 (01:45 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)

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Page 543

Confessional statement of A-100 under Section 15 of

TADA has been recorded on 15.04.1993 (23:30 hrs) and

17.04.1993 (17:00 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 11/12.03.1993 along with other co-accused.

(ii) The appellant was loading ‘goods’ in the Jeep.

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.

367) 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.

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Page 544

(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 ammunitions 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 Mhsala and was also entrusted with the duty of

transportation of the smuggled goods.

(ix) The appellant was present in the garage of the Al-

Hussaini Building in the intervening night between

11/12.03.1993.

(x) The appellant was actively involved in the work of filling

of chemical in the vehicles for their use as bombs.

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Page 545

(xi) On 23/24.01.1993, 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 Sandheri by Tiger Memon.

(xiv) The appellant was present in the 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:

368) We have already held that the confessional statement

made by a person under Section 15 of TADA 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. A confessional statement given

under Section 15 shall not be discarded merely for the

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Page 546

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 Mohammed Usman Jan Khan (PW-2) (Approver)

369) 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

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Page 547

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 10.02.1993, 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.

370) 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

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Page 548

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 present

an 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, 2 Maruti cars,

one Maruti Van, one Ambassador and 5 scooters. He further

stated as under:

“While filling the chemical, firstly a layer of chemical was filled and then pieces of iron were spreaded over and again a layer of chemical was filled and pressed. I also had 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 was done by Anvar and some other 1-2 boys.”

Further, when a question was put to him as to why these

arms and ammunitions were brought and what was the

motive behind the conspiracy, he answered that this was to

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Page 549

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) (eye- witness)

PW-15 has deposed as under:-

(i) He had seen A-11 parking the Jeep at Century Bazaar

on 12.03.1993.

(ii) He identified A-11 in the Test Identification Parade held

on 14.05.1993 by Moreshwar Gopal Thakur, Special

Executive Magistrate, (PW-469) for which Memorandum

Exhibit 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.

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Page 550

(iv) 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.

Regarding the evidence given by PW-15, learned counsel for

the appellant (A-11) has contended that the eye witness 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)

PW-469, the Special Magistrate, deposed on

01.02.1999. He stated that he conducted the Test

Identification parade on 14.05.1993 for PW-15 for the

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Page 551

identification of A-11. The eyewitness (Shri Shreedharan

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 Exhibit 1512 which was the identification parade

panchnama.

Deposition of Maharajpuram Subramaniyam Seshadri (PW–327)

At the relevant time, PW-327 was the Deputy General

Manager, Quality Control, Mahindra & Mahindra Company.

He deposed as under:

(i) The bumper (Article No.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 Exhibit No. 655 and

gave the same to Police officer Gaikwad.

Deposition of Anilkumar Vithal Kamat (PW 669)

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Page 552

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

Exhibit 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

12.05.1993 from the Designated Court.

(v) He interrogated the appellant (A-11) and put him for

identification parade.

Deposition of Fatehsingh Sohanrao Gaekwad (PW-

543)

At the relevant time, PW-543 was working with the

DCB, CID. His deposition was recorded on 09.12.1999. He

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Page 553

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 Customs Act, 1962 in

respect of damage done to the property due to 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 other accused.

It has been contended by learned counsel for the appellant

that PW-543 had made a mistake and had admitted the

same in paragraph 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 C.R. No. 1 1 7/93. My earlier statement of myself having formally arrested the said 11 accused persons before applying for grant of sanction is 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

bonafide one which the officer corrected at the earliest

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Page 554

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)

At the relevant time, PW-611 was attached with the

Dadar Police Station as a P.S.I. He inspected the scene of

offence. On 24.03.2000, he deposed before the Court as

under:

(i) A Panchnama was drawn by him being Exhibit No. 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 No.-406).

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Page 555

(iv) The panchnama also records that a crater 11 feet long

(south to north), 14 ft, 9 inches long (east to west) and

(5ft, 9 inches deep) was found after explosion at

Century Bazaar, Worli.

(v) The windows of the nearby buildings were broken and

extensive damage was caused in and around the blast

site.

(vi) Many vehicles were damaged and two cars were fully

burnt.

(vii) The said Panchnama was also proved by PW-307.

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)

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Page 556

PW-306 was a Constable attached with the 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 Beasant 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:

371) Various articles were sent to FSL vide Exhibit Nos.

1850, 1852 and 2423 for opinion and the reports of FSL were

marked as Exhibit Nos. 1851, 1853, 2424, 2467 and 2468.

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Page 557

FSL reports show the traces of RDX in the said articles which

are as follows:

(i) Exhibit 1850 is a letter to the FSL dated 17.07.1993

from CID requesting information about

percentage/purity of RDX found on forwarded articles

and components of explosives used.

(ii) Exhibit 1851 is the reply of the FSL dated 22.07.1993 to

CID stating that percentage of RDX could be provided.

(iii) Exhibit 1852 is a letter to FSL dated 08.08.1993 from

CID requesting confirmation whether the engine sent

for examination belonged to the exploded Mahindra

Jeep No. MP-09-S-0070.

(iv) Exhibit 1853 is the reply letter of FSL stated that a high

explosive device would have been placed near the

engine and the gear box.

(v) Exhibit 2423 is a letter from Police dated 15.03.1993 to

the Chemical Analyser, Bombay sending substances

used in Century Bazar bomb blast and requesting for an

opinion on the nature of the bomb used.

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Page 558

(vi) Exhibit 2424 is a letter from Police dated 15.03.1993

requesting FSL’s opinion on samples collected from the

blast site.

(vii) Exhibit 2466 is a panchnama containing the details of

collection of samples by chemical analyser. Chemical

Analyser has noted the chassis and engine number of

fully burnt cars.

(viii) Exhibit 2467 is a FSL report dated 26.03.1993 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 Police at blast site.

(ix) Exhibit 2468 is FSL report dated 23.03.1993 which

confirmed the presence of RDX as explosive.

Witness describing the Blast and Damage:

Deposition of Anjani Bhanu Gorule (PW-388)

372) Her deposition was recorded on 05.08.1998. She

deposed as under:

(i) On 12.03.1993, at 2:30 p.m., while doing household

work on the first floor of her house at Nehru Nagar,

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Page 559

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)

In her deposition dated 05.08.1998, she stated that at

about 2 p.m., she had been to beauty parlour on second

floor of Ramodia Mansion. She further deposed that:

(i) Around 2:30 to 2:35 p.m., she heard the sound of a

huge explosion.

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Page 560

(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)

He deposed in the Court on 05.08.1998 as follows:

(i) On 12.03.1993, 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 feet from the

place where he was.

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Page 561

(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 others were discharged after the treatment.

Other Evidences:

373) PWs-644, 638 and 632-Doctors have issued the Injury

Certificates Exhibit Nos. 2379, 2366 and 2350 for the injuries

sustained by PW-388, PW-389 and PW-390 respectively.

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Page 562

Deposition of Dr. Shivkumar Dhanjuram

Jaiswal (PW-644)

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 hospital on 12.03.1993 and was having 3 injuries

and in his opinion the same were involving risk to her life

and had also given history of injuries being sustained due to

bomb blast. The Medical certificate of Anjani Manu Borale

(PW-388) certifying that she was brought to MA Poddar

Hospital on 12.03.1993 due to burns during the bomb blast

has been proved by the witness.

Deposition of Dr. Vidya Shirvaikar (PW-638)

The witness proved the Medical certificate of Sunita

Walvekar (PW-389) dated 12.03.1993 which had been

marked as Exhibit 2366 certifying that she was treated in the

out-patient department of KEM Hospital, Parel for Contused

Lacerated Wound (CLW) on face below eye.

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Page 563

Deposition of Dr. Parag Laxman Mhatre (PW 632)

PW-632 proved Exh. No. 2350, the Medical certificate of

Jayant Sawant dated 12.03.1993 certifying that the said

victim was treated in the out-patient department of KEM

Hospital, Parel for Contused Lacerated Wound (CLW) on face.

374) A total of 88 people died in the blast that took place at

Century Bazaar. 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 12.03.1993 at about 2:30 to 2:45 p.m. due

to bomb blast 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.

The doctors, who examined the dead bodies of various

persons died on account of the blasts, have also deposed

regarding the injuries received by the deceased persons.

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Page 564

(i) Dr. Walter George Vaz (PW-476) on 03.05.1999

described the reasons for the death of the victims in the

blast and proved the death certificates namely, Exhibit Nos.

1584, 1585 and 1587 which were countersigned by him

regarding cause of death of John Thomas, Kisan Barshinge

and Vishram Mayekar respectively after they were examined

by Dr. Baxi, Dr. Pisal & Dr. Inamdar respectively. He also

proved his certificate regarding 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 opinion

given by him for cause of death of Baliram Gamre, Niyati

Acharya and Mamta Surendra after examining their dead

bodies.

Deposition of Kishore Laxman Sawant (PW-568)

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

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Page 565

registered ADR Nos. 25/93, 34/93 and 37/93 regarding

accidental death of Balimar Gamre, Kum. Niyati Acharya and

Prakash Pathak respectively. After the bodies were identified

by their relatives, they were sent to Coroner’s Court through

officers of 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)

PW-309 proved the damage caused by the explosion.

The Panchnama Exhibit 1186 dated 15.04.1998 was drawn

by the police officer Shri Agarkar in his presence and in the

presence of co-panch on 13.03.1993 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)

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Page 566

PW-580 proved the damage to the Passport Office. At

the relevant time, he was the Superintendent of

Adminstration at Passport Office, Bombay.

(i) Due to the explosion that occurred on 12.03.1993 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 Ministry of

External Affairs and the quotation of M/s Mahindra &

Company was accepted for the same.

Deposition 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

12.03.1993, he found one single decker bus in

completely burnt condition lying at the spot of Century

Bazaar blast. He also reported seeing 4 damaged buses

being brought to workshop at Dadar and ordered repair

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Page 567

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

above stated 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/- was

vanished;

(b) 3 lanterns of value Rs.4,000/- 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)

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Page 568

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-South

Ward of BMC.

Deposition of Hemant Dattatray Parab (PW-579)

At the relevant time, PW-579 was a Fire Officer in the

Worli Fire Station and proved the damage caused in general.

In his deposition dated 08.02.2000, he deposed that:

(i) After attending and inspecting passport office on

12.03.1993, he prepared the fire report Exhibit 2006

and Exhibit 2007 on 13.03.1993 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.

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Page 569

Evidence with regard to the vehicle (Jeep) used in the Blast:

375) Three commander jeeps were purchased by

Mohammed 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)

PW-195 is a Salesman of M/s. Wasan Motors. He

deposed that:

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Page 570

(i) In January, 1993, Shakeel Suleman Hasham (PW-366) of

Auto Links booked 3 Mahindra Commander Jeeps in the

names of Altaf Hussain, Aslam Shaikh and Jamal Ahmed

of Indore. The delivery of the said jeeps, i.e., Article

Nos. 378/379 was taken through his representative on

two different dates in the month of January 1993.

(ii) About ten days after the blast on 12.03.1993, the Jeep

(Article 378) bearing registration No. MP-09-S-0082 was

shown to him at MRA 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 22.01.1993, the Jeep, bearing Engine No. DQ 16217,

Chassis No.16217 and Temporary Registration No.

DMR-8322 was sold by M/s Wasan Motors.

(vi) Exhibit 865 is the order form of 3 jeeps purchased by

Shakeel, i.e., first blazer blue coloured jeep purchased

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Page 571

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)

At the relevant time, PW-627 was working as a Sales

Executive with M/s Wasan Automobiles at Chembur. In his

deposition dated 11.04.2000, he deposed as under:

(i) On 20.01.1993, as asked by PW 195, he met at his

residence at Bibijan Terrace, Byculla.

(ii) He alongwith 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 21.01.1993, as instructed by PW 195, he along with

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Page 572

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)

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 22.02.1993, he

received the papers for registration of 3 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 other purchasers were also

residents of M.G. Road, Indore.

Deposition of Shakeel Suleman Hasham (PW-366)

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Page 573

PW-366 was carrying his business under the name and

style of M/s Auto Links. In his deposition dated 09.07.1998,

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 concerned

party directly from the showroom of M/s Wasan Automobiles.

Deposition of Suleman Mohd. Lakdawala (PW-365)

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 09.07.1998, 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

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Page 574

the jeeps was taken by Shafi who brought them to his petrol

pump.

Deposition of Rakesh Tiwari (PW-338)

PW-338 was an Insurance Agent. Sometime, in

between, 22-01-1993 and 25-01-1993, at the instance of PW-

366 of Auto Links, he insured 3 Commander Jeeps and 2

Maruti Vans with National Insurance Company. He gave the

policy certificates to PW-366, who paid him the necessary

charges. Exhibit 1236 colly is the cover notes of policies

prepared as per the information given by PW-366.

Mukhtar Imdad Ahmed (PW-281)

PW-281 deposed that he had been asked by the 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.

376) The evidence of the approver, the eye-witness,

experts and others clearly implicate A-11 to the actual scene

of the crime at Century Bazaar along with linking him to

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Page 575

taking part in the entire conspiracy. The confession made by

A-11 himself and the confessions of the various co-accussed

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.

377) 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 landings, smuggling of arms

and ammunitions, 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 blasts clearly shows and establishes the fact

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Page 576

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 ammunitions and even planted the jeep with a

bomb which exploded in Century Bazaar.

378) In view of the above, we hold that the prosecution has

produced sufficient evidence to bring home the charges

framed against him.

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Page 577

Criminal Appeal No. 897 of 2008

Parvez Nazir Ahmed Shaikh (A-12) …..Appellant(s)

versus

The State of Maharashtra Thr. CBI-STF, Mumbai ……..Respondent(s)

379) 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.

380) The instant appeal is directed against the final

judgment and order of conviction and sentence dated

21.09.2006 and 18.07.2007 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. 1/1993.

57

Page 578

Charges:

381) 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 (UA.E.) 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, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms 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 fire-arms, ammunitions, detonators, handgrenades 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, ammunitions 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 off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions 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

57

Page 579

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 12.03.1993 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 handgrenades 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) of Indian Penal Code read with Sections 3(2)(i)(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 Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(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.”

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 3rd and 7th February, 1993;

(ii) He participated in training in handling and use of arms, ammunition and handgrenades on the outskirts of village Sandheri and Borghat;

57

Page 580

(iii) He along with co-conspirators participated in preparation of vehicle bombs in the night of 11th/12th March, 1993 at Al-Hussaini Building;

(iv) He participated in the transportation of arms, ammunition, handgrenades and electric detonators from Jogeshwari to Musafirkhana with co-accused Ashrafur Rehman Azimulla Sheikh @ Lalloo and Smt. Ruksana Mohammed Shafi Zariwala and thereby having committed an offence punishable under Section 3(3) of the 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 Section 3(2)(i) and (ii) of 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

58

Page 581

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 Section 4 (a)(b) of the Explosive Substances Act, 1908.

At head twelfthly; The appellant (A-12), by possessing RDX without licence which was filled in the above mentioned scooter, which was used for causing the aforesaid explosion, committed an offence punishable under Section 9B(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 12th March, 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) of 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 Section 4 (a)(b) of the Explosive Substances Act, 1908.

At head eighteenthly; The appellant (A-12), by possessing explosives without licence, committed an

58

Page 582

offence punishable under Section 9B (1)(b) of the Explosives Act, 1884.

382) The Designated Judge found the appellant guilty on all

the aforesaid charges. The appellant has been convicted

and sentenced for the above said charges as follows:

Conviction and Sentence:

(i) The appellant has been convicted and sentenced to

death under Section 3(3) of TADA and Section 120-B of 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)

(ii) The appellant was further found guilty for the offence

punishable under Section 3(3) of TADA for commission of

such acts as found proved from clauses ‘a’ and ‘c’ from

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)

58

Page 583

(iii) The appellant was further found guilty for the offence

punishable under Section 3(2)(i) of TADA for commission of

such acts as found proved from 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)

(iv) The appellant was further found guilty for the offence

punishable under Section 302 IPC for commission of such

acts as found proved from 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)

(v) The appellant was further found guilty for the offence

punishable under Section 307 IPC for commission of such

acts as found proved from 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

58

Page 584

Rs.25,000/-, in default of payment of fine, he was ordered to

suffer further RI for a period of 6 months. (charge fifthly)

(vi) The appellant was further found guilty for the offence

punishable under Section 324 IPC for commission of such

acts as found proved from 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)

(vii) The appellant was further found guilty for the offence

punishable under Section 435 IPC for commission of such

acts as found proved from 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)

(viii) The appellant (A-12) was further found guilty for the

offence punishable under Section 436 IPC for commission of

such acts as found proved from charge at heady ninthly

framed against him and on the said count he was convicted

and sentenced to suffer RI for 5 years and was ordered to

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Page 585

pay a fine of Rs. 25,000/-, in default, to further undergo RI

for a period of 6 months. (charge ninthly)

(ix) The appellant was further found guilty for the offence

punishable under Section 3 of the Explosive Substances Act,

1908 for commission of such acts as found proved from

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)

(x) The appellant was further found guilty for the offence

punishable under Section 4(b) of the Explosive Substances

Act, 1908 for commission of such acts as found proved from

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)

(xi) The appellant was further found guilty for the offence

punishable under Section 9B(1)(b) of the Explosives Act,

58

Page 586

1884 for commission of such acts as found proved from

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)

(xii) The appellant was further found guilty for the offence

punishable under Section 3(2)(ii) of TADA for commission of

such acts as found proved from 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)

(xiii) The appellant was further found guilty for the offence

punishable under Section 307 IPC for commission of such

acts as found proved from 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)

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Page 587

(xiv) The appellant (A-12) was further found guilty for the

offence punishable under Section 436 IPC for commission of

such acts as found proved from 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)

(xv) The appellant (A-12) was further found guilty for the

offence punishable under Section 3 of the Explosive

Substances Act, 1908 for commission of such acts as found

proved from 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)

(xvi) The appellant was further found guilty for the offence

punishable under Section 4(b) of the Explosive Substances

Act, 1908 for commission of such acts as found proved from

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Page 588

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)

(xvii) The appellant was further found guilty for the offence

punishable under Section 9B(1)(b) of the Explosives Act,

1884 for commission of such acts as found proved from

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:

383) 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 eye

witnesses; and

(iv) documentary evidence.

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Page 589

Conspiracy:

384) 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)

385) Confessional statement of A-12 under Section 15 of

TADA has been recorded on 18.04.1993 (14:00 hrs.) and

21.04.1993 (06:50 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).

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Page 590

(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.

Hussian, Mohammed 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 the 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 Vesava

Hotel at Mahad and also at Hotel Big Splash, Alibaug.

(vi) On the 4th 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

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Page 591

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 @ Nasir Dhakla (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.

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Page 592

(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 15th/16th February, 1993, the appellant along with

A-10 went to the 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

Musafir-khana 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.

59

Page 593

Shafi kept 2 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 03.02.1993 at Shekhadi,.

(xvi) The appellant also assisted the co-accused persons

in filling RDX in vehicles.

(xvii)The appellant, A-10 and Shoaib were asked by Anwar

Theba (AA) to dispose off 5/6 plastic bags containing

the empty cardboard boxes in which black soap was

packed.

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Page 594

(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 the 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

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Page 595

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 12.03.1993, 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.

386) On perusal of the aforesaid confessional statement, the

followings 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

other co-conspirators;

59

Page 596

(ii) He participated in the landing of arms and

ammunitions 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 the 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:

387) It was contended on behalf of the appellant (A-12) that

since he subsequently retracted from his own confession

dated 11.01.1994, the same cannot be relied upon. Since

we have elaborately discussed the admissibility or otherwise

59

Page 597

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:

388) 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

summarized hereinbelow:

Confessional Statement of Mohammed Soaib Mohammed Kasam Ghansar (A-9)

Confessional statement of A-9 under Section 15 of

TADA has been recorded on 19.04.1993 (13:10 hrs.) and

22.04.1993 (00:30 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.

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Page 598

(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 12.03.1993, 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 pencil of steel 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 the Al-Hussaini building.

(vii) After the blast, A-10 and A-9 went to the house of the

appellant on 13.03.1993.

Confessional Statement of Asgar Yusuf Mukadam

(A-10)

Confessional statement of A-10 under Section 15 of

TADA has been recorded on 23.04.1994 (18:00 hrs.), by

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Page 599

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 @

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 the Tiger’s

residence and shifted two VIP bags, one hand bag

and one briefcase from Tiger’s residence to Room

No.17 of the 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 the Al-Hussaini building in

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Page 600

the night intervening between 11/12th 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 aluminum 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)

Confessional statement of A-11 under Section 15 of TADA

has been recorded on 15.04.1993 (22:35 hrs.) and

18.04.1993, by Shri Prem Krishna Jain (PW-189), the then

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Page 601

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 27/28th 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

11.03.1993 and was filling chemical @ black soap in

the vehicles along with the co-accused.

Confessional Statement of Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14)

Confessional statement of A-14 under Section 15 of

TADA has been recorded on 17.04.1993, 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)

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Page 602

Confessional statement of A-15 under Section 15 of TADA

has been recorded on 07.05.1993 (12:30 hrs.) and

09.05.1993 (13:30 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 12.03.1993 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).

389) 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

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Page 603

to Hawala transactions and was well acquainted with

other co-conspirators.

(ii) The appellant participated in the landing of arms and

ammunitions 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 the Al-Hussaini

building.

(v) The appellant planted 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.

390) 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

of TADA and the rules framed thereunder have been duly

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Page 604

complied with while recording the confessions of the

appellants.

Deposition of Prosecution Witnesses:

Blast at Katha Bazaar

Deposition of Laxman Dhondu Posture (PW-8)

391) 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 the Matruchayya 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 13.05.1993, 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.

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Page 605

Deposition of Abdulla Ibrahim Shaikh (PW-9)

PW-9 was a driver working with one Mr. Mehra, whose

office was on the third floor of AGH Chambers which is

opposite to Matruchayya building:

(i) PW-9 deposed that on 12.03.1993, 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.

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Page 606

(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 21.03.1993 at 4.30 p.m. by PW-

462 at Sacred Heart School.

392) On perusal of the depositions of PWs-8 and 9, it is

clearly established that on 12.03.1993, the appellant parked

the scooter at Katha Bazaar, opposite to Matruchhaya

Building which later exploded. The appellant was duly

identified by PWs 8 & 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)

At the relevant time, PW-462 was the Special Executive

Magistrate (SEM) who conducted the Test Identification

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Page 607

Parade for the identification of the appellant. He deposed as

under:

(i) He conducted the Test Identification Parade on

21.03.1993 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 Exh.

1478.

Deposition of Moreshwar Thakur (PW-469)

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

13.05.1993 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.

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Page 608

(iii) PW-469 in his deposition proved the panchnama.

Deposition of Suresh Satappa Walishetty (PW-680)

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 31.05.1993, the appellant made

another disclosure statement and led the police

party and got his driving licence bearing No. MH-01-

93-5023 issued on 17.02.1993 recovered from the

house of his friend Mohd. Taufiq Naulakhiya resident

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Page 609

of Hussain Rattan Chawl. The panchnamas for the

entire event were also prepared.

(v) Vide covering letter dated 28.06.1993, PW-680 sent

the said shirt to the Chemical Analyzer.

(vi) The report of the Chemical Analyser dated

16.07.1993 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.

The report of the Chemical Analyzer 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

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Page 610

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)

PW-530 was the API and had assisted PW-680 in the

interrogation of the appellant on 31.05.1993. 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)

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 No. MO-5-178695.

(ii) He seized the number plate of the scooter bearing

No. MP 1B 5349.

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Page 611

(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)

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)

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Page 612

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 15-20th April, 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 No. of the scooter was MP-14-B-

5349.

(viii) He then booked the scooter by train to A-26 from

Ratlam.

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Page 613

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, MP 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)

He 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:

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Page 614

Depositions of Dharmendra Ratilal Parekh (PW-423) and Sadashiv Ganpat Ranmale (PW-429)

393) The above witnesses deposed about taking claim of the

dead body of their brothers who succumbed to the injuries

sustained during the blast at Katha Bazaar.

Deposition of Dr. Madhavrao Lalasaheb Lankeshwar (PW-478)

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)

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)

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Page 615

PW-372 deposed that Gulabi House owned by his

company was damaged. He deposed that the damage

estimated to the tune of Rs.25,000/-.

Deposition of Dinanath Ramchand Ramani (PW-373)

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)

All the abovesaid witnesses have proved the damage

caused to the public property on account of explosion at

Katha Bazar.

Deposition of Namdeo Yashwant Gole (PW-430)

PW-430 deposed that he sustained injuries on his leg

and forehead due to which he became unconscious and was

admitted in GT Hospital.

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Page 616

Explosion at Hotel Sea Rock:

Deposition of Premchand Pandhari Nath Garud (PW-

23)

394) PW-23 was working as an attendant in the House

Keeping 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 12:15 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.

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Page 617

(vi) He also identified the appellant in the Test

Identification Parade conducted by Vasant Kamble

(PW-462) on 21.03.1993.

Deposition of Vasant Kamble (PW-462)

(i) He is the SEM who conducted the TIP on 21.03.1993

for the identification of A-12 at Sacred Hearts School.

(ii) A Panchnama of the parade was also prepared by

him which is marked as Exh. 1478 and he also

proved the same.

Deposition of Suresh K. Singh (PW-28)

At the relevant time, PW-28 was working as a bell boy

in the said hotel.

(i) On 12.03.1993, 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 Identification

Parade dated 07.05.1993 conducted by Almedia,

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Page 618

Special Executive Magistrate at Bandra Police Station

in the presence of panch witness.

Deposition of Suresh Kumar Champalal Bhandari (PW-

467)

(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 SEM

(iii) He deposed that a panchnama was prepared for the

parade.

The above said evidence establishes the fact that the

appellant (A-12) entered into the Room No. 1840 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)

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Page 619

PW-279 was the Front Office Receptionist at Hotel Sea

Rock at the relevant time and deposed that a person by

name Domnic D’Souza came to the hotel along with one

more person to make an advance payment for Mr. Advani’s

reservation on 08.03.1993.

Deposition of Johnwin George Manavalan (PW-280)

PW-280 was working as a Cashier at Hotel Sea Rock

and deposed of having accepted Rs.7,000/- on 08.03.1993

towards advance payment for reservation of the said room

commencing from 11.03.1993, in the name of Mr. Advani.

He further deposed that he issued receipt for the same.

Deposition of Valery D’Souza (PW-620)

PW-620 was a Reservation Assistant at Hotel Sea Rock

at the relevant time and deposed that on 08.03.1993, a

person had come to confirm the check in of one Mr. Advani

on 11.03.1993. She deposed that the said person deposited

Rs.7,000/- with the cashier and completed the reservation

formalities.

Deposition of Lorraine Gonsalves (PW-495)

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Page 620

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 for 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)

He 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.

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)

At the relevant time, PW-333 was working as a Security

Assistant at Hotel Sea Rock and deposed about the explosion

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Page 621

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)

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.

Dastagir Mohamad Gavandi (PW-552)

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 14.03.1993, he along with PW-531 again went to

the Hotel with FSL experts who took some samples

and handed over them to PW-531 vide panchnama

Exh. 1826.

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Page 622

(iv) On 19.03.1993, he sent three sealed packets vide

covering letter to Chemical Analyzer through PW-

531.

(v) The chemical analyser report was received on

29.03.1993.

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)

PW-531 was a police officer and deposed that on

14.04.1993 he went to the Hotel along with Mandlik and

Karnik, FSL experts and inspected the said room. The 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 Exh. 1897.

Deposition of Ashok Hotchand Motwani (PW-419)

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Page 623

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)

395) 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

the 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.

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Page 624

(iv) The police party seized the same and a panchnama

was drawn by PW-506.

Deposition of Anil Prabhakar Mahabole (PW-506)

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.

396) It is contended by the counsel for the appellant (A-12)

that there is no eye-witness to the incident of filling of RDX

and as such the said incident has not been proved by the

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Page 625

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 the 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 11th/12th March, 1993.

397) 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

meters 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

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Page 626

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.

398) 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 kms. 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

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Page 627

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.

399) 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 learned counsel is also liable to be rejected

since PW-28 had correctly identified the appellant (A-12)

during the test identification parade dated 07.05.1993 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.

400) In view of the above said confessional statement of the

appellant (A-12), the confessional statements of other co-

accused persons, as also the eye-witnesses along with other

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Page 628

witnesses duly examined by the prosecution and recoveries

made, the charges framed against the appellant have been

duly proved.

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Page 629

Criminal Appeal Nos. 941-942 of 2008

Mohammed Farooq Mohammed Yusuf Pawale (A-16) ……..Appellant(s)

versus

The State of Maharashtra thr. CBI-STF, Bombay ……..Respondent(s)

401) 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.

402) The present appeals are directed against the final

judgment and order of conviction and sentence dated

09.10.2006 and 25.07.2007 respectively, whereby the

appellant has been convicted and sentenced to death by the

Designated Judge in the Bombay Bomb Blast Case, Greater

Bombay in BBC No. 1/1993.

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Page 630

Charges:

403) 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 (UA.E.) 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, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms 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 fire-arms, ammunitions, detonators, handgrenades 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, ammunitions 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 off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions 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

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Page 631

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 12.03.1993 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 handgrenades 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) of Indian Penal Code read with Sections 3(2)(i)(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 Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(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.”

In addition to the aforesaid principal charge of

conspiracy, A-16 was also charged on other counts which are

summarized as follows:

At head secondly; He committed an offence punishable under Section 3(3) of TADA by committing the following overt acts.

(a) He participated in the landing and transportation of arms, ammunitions 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, ammunitions and explosives from the agents of ISI to commit terrorist acts in India.

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Page 632

(c) He attended the conspiratorial meetings during the month of March 1993 at the residence of Babloo @ Nazir Anwar Shaikh and Mobina @ Baya Musa Bhinwandiwala for making plans to commit terrorist act.

(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 11/12 March, 1993.

(e) He surveyed and conducted reconaissence of the Stock Exchange Building and Air India Building on 10.03.1993 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 to four persons and injury to 50 persons and causing loss of property worth Rs. 21,20,600/- and thereby committed an offence punishable under Section 3(2)(i) (ii) of 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 I.P.C

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.

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Page 633

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 Section 4(a)(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 9B(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 to 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 Section 3(2)(i)(ii) of 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 the injury of 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 the 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 the injury of 49 persons committed an offence punishable under Section 324 IPC.

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Page 634

At head eighteenthly; The appellant (A-16), by causing the aforesaid explosion which resulted in the damage of property committed 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 Section 4(a)(b) of the Explosive Substances Act, 1908.

At head twenty-secondly; The appellant (A-16), by possessing the RDX explosives in the above mentioned vehicle without licence, committed an offence punishable under Section 9B(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 Preventive Damage to Public Property Act, 1984.

404) 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 above said charges as

follows:

Conviction and Sentence:

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Page 635

(i) The appellant has been convicted and sentenced to

death under Section 3(3) of TADA and Section 120-B of 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)

(ii) The appellant was found guilty for the offence

punishable under Section 3(3) of 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)

(iii) The appellant was sentenced to death, subject to

confirmation of the same by this Court, for the offence

punishable under Section 3(2)(i) of TADA and Section 302 of

IPC respectively, and is also ordered to pay a fine of

Rs.25,000/-. (charges thirdly & fourthly)

(iv) The appellant has been sentenced to RI for life for the

offence punishable under Section 307 IPC. (charge fifthly)

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Page 636

(v) 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)

(vi) 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)

(vii) 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 & ninthly)

(viii) The appellant has been sentenced to suffer RI for 10

years along with a fine of Rs. 5,000/-, in default, to further

undergo RI for 6 months for the offence punishable under

Section 3 of the Explosive Substances Act, 1908. (charge

tenthly)

(ix) The appellant has been sentenced to suffer RI for 7

years along with a fine of Rs. 5,000/-, in default, to further

undergo RI for 6 months for the offence punishable under

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Page 637

Section 4(b) of the Explosive Substances Act, 1908. (charge

eleventhly)

(x) 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)

(xi) 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) of

TADA. (charge thirteenthly)

(xii) 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)

(xiii) The appellant has been sentenced to RI for life for the

offence punishable under Section 307 IPC. (charge

fifteenthly)

(xiv) 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)

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Page 638

(xv) 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)

(xvi) 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 & nineteenthly)

(xvii) The appellant has been sentenced to suffer RI for 10

years along with a fine of Rs. 5,000/-, in default, to further

undergo RI for 1 year under Section 3 of the Explosive

Substances Act, 1908. (charge twentiethly)

(xviii) The appellant has been sentenced to suffer RI for 7

years along with a fine of Rs. 5,000/-, 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)

(xix) 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)

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Page 639

(xx) 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:

405) 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 eye

witnesses; and

(iv) documentary evidence.

Conspiracy:

406) 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

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Page 640

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 Mohammed Farooq Mohammed Yusuf Pawale (A-16)

407) Confessional statement of A-16 under Section 15 of

TADA has been recorded on 20.05.1993 (16:30 hrs.) and

22.05.1993 (16:45 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:

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Page 641

(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 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

Dhakla and Parvez Zulfikar Qureshi who were also

criminals.

(iii) On 07th February, 1993, Javed Chikna called him and

asked whether he could drive a jeep for him and

whether he could take 2 days leave. He (A-16)

agreed and said that he would take leave for two

days.

(iv) Next day, i.e., on 08/09th February, 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

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Page 642

Ali, Parvez, Nasir Dhakla 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 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 @ 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 10.02.1993, he along with 5 other persons left

Bombay and reached Dubai.

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Page 643

(viii) On 13.02.1993, he along with six other co-accused

persons was sent to Islamabad, Pakistan by Tiger

Memon.

(ix) On 16.02.1993, 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:

“Next day we were given training in dismantling and re-assembling the rifles and pistols and the use of the bombs. Second day, we were given physical training and handling of pistol and rifle. We were also given training in firing.”

(x) On 27.02.1993, he was taken back to Islamabad and

on 01.03.1993 to Dubai.

(xi) In the evening on 03.03.1993, he along with 5

others, returned to Bombay from Dubai.

(xii) On 07.03.1993, he attended a meeting along with

Irfan and other accused persons at Khar in which

Tiger told that he was going to cause riots in Bombay

and asked him to work with Salim Mujahid and Irfan.

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Page 644

(xiii) On 10.03.1993, 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 Consultate 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 alongwith

others attended the meeting at Bandra behind the

Bhabha Hospital whereby Tiger distributed Rs.

5,000/- to each one of them and asked them to work

without fear.

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Page 645

(xvi) On 12.03.1993, he was paid Rs. 5,000/- 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 the 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 (ammunitions)

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.

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Page 646

(xxi) In the evening, he told Bashir (A-13) that he had

parked one vehicle near Air India Building which

caused the blast.

(xxii)Next day, he came to know that the Memon’s

Building (Al Hussaini) was raided by the Police.

(xxiii) On 14.03.1993, on the advice of Rafiq, he went to

Siraz Saloonwala at Mumbra and stayed there for 7

days and, thereafter, to his relative Tauji Ahmed at

Kalva for 2 days and then to Uran from where he was

arrested from the residence of his relative Fusa

Kumbi.

408) 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.

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Page 647

Confessional Statements of other co-accused:

409) 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 of 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)

Confessional statement of A-10 under Section 15 of

TADA has been recorded on 23.04.1993 (18:00 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 10/11th February,

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 10.02.1993.

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Page 648

Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)

Confessional statement of A-29 under Section 15 of

TADA has been recorded on 18.05.1993 (18:30 hrs.) and on

21.05.1993 (14:45 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)

Confessional statement of A-32 under Section 15 of

TADA has been recorded on 16.05.1993 (1125 hrs.) and

19.05.1993 (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.

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Page 649

(ii) They (including A-16) received training in handling of

arms and ammunitions 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 03.03.1993, 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)

Confessional statement of A-36 under Section 15 of

TADA has been recorded on 19.05.1993 (17:40 hrs.) and on

21.05.1993 (18:20 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 ammunitions and explosives in Pakistan. This

confession, along with the above stated confessions,

establishes that the appellant went to Pakistan to receive

training in the use of arms and ammunitions and explosives.

This further proves that the conspirators were maintaining

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Page 650

secrecy and the actions on 12.03.1993 were a result of a

pre-planned agreement between the conspirators.

Confessional Statement of Feroz @ Akram Amani Malik (A-39)

Confessional statement of A-39 under Section 15 of

TADA has been recorded on 19.04.1993 (22:30 hrs.) and on

23.04.1993 (20:50 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

ammunitions 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

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Page 651

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)

Confessional statement of A-49 under Section 15 of

TADA has been recorded on 16.05.1993 (09:30 hrs.) and on

18.05.1993 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)

Confessional statement of A-52 under Section 15 of

TADA has been recorded on 15.04.1993 and on 18.04.1993

by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay.

The said accused also referred to the involvement of the

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Page 652

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 11.02.1993, he along with the appellant and

others left Bombay and reached Dubai.

(ii) On 12.02.1993, he along with others stayed in a

building opposite to Hotel Al-Khaleez where Tiger

Memon met them.

(iii) On 13.02.1993, 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 14.02.1993, 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. Fourth day, we learnt about

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Page 653

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 2 and a half hours. We threw that pencils by using detonators.”

(Emphasis supplied)

(vii) On 28.02.1993, 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.”

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Page 654

(viii) On 03.03.1993, he along with the appellant and

other co-accused left Dubai and reached Bombay.

(ix) After returning from Dubai, on the 3rd 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 11.03.1993, at night, A-16 along with other co-

accused was present in the garage of the Al-Hussaini

building, i.e. at the residence of Tiger Memon where

the vehicles were loaded with RDX for causing bomb

blasts.

This 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

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Page 655

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 the Al Hussaini Building when the vehicle

bombs were being prepared.

Confessional Statement of Shaikh Ali Shaikh Umar (A-

57)

Confessional statement of A-57 under Section 15 of

TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri

Krishan Lal Bishnoi (PW-193), the then DCP, Zone III,

Bombay. A-57 went to meet Javed Chikna on 08/09.02.1993

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 meeting before the landing at

Shekhadi.

Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)

Confessional statement of A-64 under Section 15 of

TADA has been recorded on 22.01.1995 and on 24.01.1995

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Page 656

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 the 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.

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Page 657

(v) A-16 was present at the Al Hussaini Building during

the preparation of vehicle bombs in the night of

11/12.03.1993 by using RDX which had landed at

Shekhadi.

(vi) A-16 was seen going to the Al-Hussaini compound in

the morning of 12.03.1993 wearing a white uniform

as a driver.

The said confessional statement 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 the

Al Hussaini building on the night when the RDX was being

filled in the vehicles for their preparation as vehicle

bombs.

Confessional Statement of Md. Rafiq Usman Shaikh

(A-94)

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Page 658

Confessional statement of A-94 under Section 15 of

TADA has been recorded on 14.05.1993 (18:30 hrs.) and on

16.05.1993 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 14.03.1993, 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 @ Aslam Iqbal Ahmed Shaikh (A-98)

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Page 659

Confessional statement of A-98 under Section 15 of

TADA has been recorded on 17.05.1993 (14:30 hrs.) and on

20.05.1993 (11:30 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 ammunitions, 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 7:00- 8:00 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 black-board 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.”

(ii) On 01.03.1993, after reaching Dubai, A-16, who had

gone for training at the instance of Tiger took an oath by

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placing his hands on Quran. A speech was given by Tiger

regarding the riots in Bombay and about taking revenge.

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)

Confessional statement of A-100 under Section 15 of

TADA has been recorded on 15.04.1993 (23:30 hrs.) and on

17.04.1993 (17:00 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

09.02.1993 at Shekhadi coast and thereafter in

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Page 661

transportation of the said consignment to Waghani

Tower and other places.

(ii) He participated in the training of fire arms and

ammunitions at Islamabad, Pakistan alongwith his

associates during February 1993.

(iii) On 02.03.1993, 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 11/12.03.1993 alongwith other co-

accused when the explosives were being filled in the

vehicles which were brought for the said purpose.

410) 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.

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Page 662

(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 06.12.1992

(demolition of Babri Masjid) and in the riots that

ensued;

(ix) A-16 was responsible for taking the explosives laden

vehicle to the Air India Building and the Shiv Sena

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Page 663

Bhawan (Lucky Petrol Pump) and causing death and

destruction.

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

destabilize the Government of India. From the above

confession, it is evident that he 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 of TADA requires no corroboration.

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Page 664

Retracted Confessions:

411) 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 Mohammed Usman Jan Khan (PW-2) (Approver)

412) 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 summarized hereinbelow:

(i) He knew Md. Farooq Mohammed Yusuf Pawale as

Farooq Pawale (A-16).

(ii) He identified the appellant in the identification parade.

(iii) On 09.02.1993, he met A-16 at the Soda Factory along

with other co-accused and went to Waghani Tower

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Page 665

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 10.02.1993, 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 ammunitions 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 bomb. They were explained that the RDX

could be used for exploding and blowing off the 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 evening time,

classes were held and they were explained things on

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Page 666

black board 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 08.03.1993

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 11/12.03.1993.

(xi) PW-2, along with the appellant, took the white coloured

Maruti 800 car (laden with RDX) and parked it near the

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.

413) Learned counsel for the appellant placed reliance on

para 74 of the deposition of the approver in support of her

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Page 667

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 Car 800 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.”

A-16 participated in the landing and transportation of arms

and ammunitions 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

ammunitions 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 @ Nazir Anwar Shaikh and Mobina @ Baya Musa

Bhiwandiwala (A-96) for making plans to commit terrorist

act.

414) He also participated along with other co-conspirators in

loading the explosives like RDX fitted with time device

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Page 668

detonators in various vehicles during preparation of vehicle

bombs in the intervening night between 11/12th March, 1993.

He surveyed and conducted reconaissence of the Stock

Exchange Building and Air India Building on 10.03.1993 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.

415) 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 the Shiv Sena Bhawan. The

account of the conspiratorial meetings, training and other

events is reliable and fits in to the chain of events which has

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Page 669

already been established by the confessions of various

accused.

Other Witnesses

Deposition of Ishwar Haralkar (PW-11)

416) PW-11 was a service man at Lucky Petrol Pump. He

deposed that while he was on duty on 12.03.1993, at 2 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 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

blown up and fell on him. He was injured and went to

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Page 670

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

11.05.1993 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 23.05.1993 conducted by SEM Moreshwar

Thakur (PW-469).

(iii) The witness also identified the appellant (A-16) in the

Court.

417) 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

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Page 671

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.

418) 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 12.03.1993 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 12.03.1993). In my statement recorded by the Police on 12.03.1993 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 12.03.1993, his colour complexion was 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.

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Page 672

419) The witness 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.

420) The witness has given accurate description of the

accused and the approver 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.

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Page 673

Deposition of S.S. Hande (PW-12)

PW-12 was a police constable attached to Dadar Police

Station. On 12.03.1993, he along with PC 13196 was on

duty at the Shiv Sena Bhawan. He is an eye-witness 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 the 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 23.05.1993 conducted by SEM Moreshwar

Thakur (PW-469) who prepared the memorandum

Panchnama Exh. 1519 for the same.

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Page 674

(iv) The witness also identified the appellant (A-16) in the

Court.

It was submitted by the counsel for the appellant that this

witness has deposed that A-16 had an altercation with him

regarding parking of 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.

421) Learned counsel for the appellant has placed para No. 5

in which the accused has been identified by the witness and

paragraph No. 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 eye-witness

has correctly identified the accused and, therefore, the

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Page 675

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 No. 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.

422) 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)

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Page 676

PW-668 was a Police Officer who visited the said 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 Exh. 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)

PW-669 was the person who sent articles like burnt

pieces of bones, skull, branches of trees, etc. to the 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 the FSL

confirm the traces of RDX which were present in the objects

collected from the scene of the blast.

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Page 677

Deposition of Fazal Fruitwala (PW-363)

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 12.07.1990,

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 concerned locality.

Deposition of Sadanand S. Paradkar (PW-329)

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Page 678

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)

PW-445 was a petrol-filler at the Lucky Petrol Pump. On

12.03.1993, 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 2nd floor wall of the

building. He further deposed that damage was also caused

to the buildings behind the petrol pump and things in its

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Page 679

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 Exh. 1431 dated 12.03.1993.

Injured Witnesses:

423) It was pointed out that around 50 people suffered

injuries due to the explosion which took place at the 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 12.03.1993:

(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.

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Page 680

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 Exh. 2348 in respect of the above

mentioned injuries.

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

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Page 681

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.

(ii) Exh. 1967 – ADR No. 19/93 in respect of death of

Smt. Mamta Surendra Pilankar, cousin sister of Shri

Nitin Vasant Parkar (PW-410).

(iii) Exh. 1971 – ADR No. 42/93 in respect of death of Shri

John Thomas, son of Shri Thomas Itiyavira

Modabamkunnel (PW-427).

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).

The articles seized from the scene of the blast that took

place at Shiv Sena Bhawan were sent to the Forensic Science

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Page 682

Laboratory for opinion vide Exh. 2447 and Exh. 2469. The

FSL Reports received in respect of the said letters are Exh.

2447-A and Exh. 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)

424) He is an eye-witness 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

12.03.1993, at about 12 noon, while going to his

shop, he noticed a white coloured ambassador car

bearing No. MH -9622 parked abutting the footpath

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Page 683

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 feet 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 to 2:45 p.m., PW-10 reported hearing a

deafening sound from the Air India Building. He saw

the white Ambassador car 5 to 6 feet 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

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Page 684

damaged and his employees, viz., Ganesh and

Joginder sustained minor injuries.

(v) He identified A-16 in the identification parade dated

09.04.1993 conducted by the SEM (PW-462) and

again he identified A-16 in the identification parade

dated 14.05.1993 conducted by the SEM PW-469.

(vi) He also identified the photographs of the appellant

which were marked as Article Nos. 7 and 8 in the

parade dated 15.06.1993 conducted by SEM PW-469.

425) It was submitted by the counsel for the appellant (A-16)

after reading paragraph Nos. 7, 8 and 14 of his deposition

that witness was not able to identify the accused even after

giving more chances to identify the accused. It was furher

contended that there being only one eye-witness, who also

could not identify the accused, hence, there is no other eye-

witness 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 12.03.1993 and the identification was

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Page 685

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)

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 12.03.1993, 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 the Bank of Oman.

(ii) He further stated in his deposition that the entire

atmosphere was surrounded with dense smoke and a

crater of size 8x7 feet had been created in the porch.

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Page 686

(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 the 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

numbers 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 the JJ

Hospital with the help of firemen.

(viii) The injured were taken to GT Hospital and the Bombay

Hospital.

Deposition of N. Venkatramni (PW-376)

He 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

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that occurred in front of the said building. He along with

other engineers inspected the site. They appointed

specialized 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)

He was working with the Bank of Oman at the time of

the incident. He deposed as follows:

(i) On 12.03.1993, 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.

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Page 688

(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:

426) 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 summarized as under:

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Page 689

(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 black out.

(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 18.03.1993. PW-404 and PW-407 were

admitted in the casualty ward of JJ Hospital and were

later shifted to the Hinduja Hospital. PW-404 was

discharged on 22/23rd March, 1993 and 3-4 days after

that PW-405 was discharged.

The testimonies of these 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

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Page 690

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)

He was the doctor at Hinduja Hospital and deposed

regarding the injuries sustained by PW-404 who was

admitted in the said hospital on 13.03.1993. 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 12.03.1993. He had to be operated on and was

treated and discharged on 24.03.1993. He was again

admitted on 02.05.1993 and was discharged on 05.05.1993

after treatment and removal of foreign body ‘granuloma’

from the ring finger of his right hand and the metacarpel

region of neck.

Deposition of Dr. Rajaram Amrut Bhalerao (PW-646)

He was the doctor at Hinduja Hospital and has deposed

regarding PW-407 who was brought to the casualty centre of

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Page 691

the said hospital on 13.03.1993. 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)

He was the doctor at Bombay Hospital and has deposed

regarding PW-405. He deposed that the injured witness was

brought to the Bombay Hospital on 12.03.1993 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

19.03.1993.

Depositions of Sandeep Prakash Bafna (PW-194) and Prakash Sanchalal Bafna (PW-247)

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/-

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Page 692

from Hindustan Motors whose temporary Registration No.

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 Head Quarters

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)

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 No. of Madhya

Pradesh were available. Shafi (AA) agreed to buy those cars.

Suleman Lakdawala also arranged for one white ambassador

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Page 693

car for Shafi. This would further be established by the

evidence of PW-366.

Deposition of Shakeel Suleman Hashan (PW-366)

In his deposition, he stated that he (PW-366) introduced

PW-365 with the car agency by name ‘Kailash Agencies’. PW-

365 taken the said car from the said agency and delivered it

to Shafi Zariwala (AA).

Deposition of Mukhtar Imdad Ahmed PW-281

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-2Q-

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 12.03.1993.

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Page 694

Deposition of Ashok Budhavale (PW-614)

PW-614 was working in the 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 TIP 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 TIP 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)

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

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Page 695

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 06.12.1999, 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)

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

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Page 696

contents to be true. The contention of the counsel for the

appellant stands negatived.

Deposition of Nagesh Lohar (PW-356)

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 realize that it

had to be recorded till the time he was questioned for it.

Deposition of Rajan Dhoble (PW-585)

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

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Page 697

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)

427) PW-24 was a Security Guard at the Bombay Stock

Exchange Building. He is an eye-witness to the incident. His

deposition revealed that on 10.03.1993, 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 11.05.1993 and

08.06.1993 conducted by 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)

PW-458 was the SEM who conducted the TIP with

regard to the accused A-16 for PW-24. It was submitted by

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Page 698

the counsel for the appellant that the SEM was neither aware

of the guidelines nor he had 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.

428) A perusal of the entire evidence above establishes the

guilt of the appellant (A-16). The confession of the appellant

gives the detail 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 ammunitions 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

finalized; and in addition to all these actions, he planted

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Page 699

explosives laden vehicles at two locations and went to

survey the third location.

429) 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 eye-witnesses also corroborate the fact that

the appellant had planted explosives at two locations and

had surveyed the third place.

430) The evidence of the approver, the eye-witnesses,

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 the 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.

431) 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

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Page 700

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.

432) In view of the above said confessional statement of the

appellant (A-16), the confessional statements of other co-

accused persons, as also the eye-witnesses along with other

witnesses duly examined, the prosecution has produced

sufficient evidence against the appellant to bring home the

charges framed against him.

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TERRORISM:

433) 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 “the use of threat or violence to

intimidate or cause panic, esp. as a means of affecting

political conduct” (8th edition, page 1512).

434) 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

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Page 702

the use of chemical, biological, and nuclear weapons—

weapons of mass destruction (WMD).

435) 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 (Act

31 of 1985) which received the assent of the President on

May 23, 1985 and was published in the Gazette of India,

Extra., Part II, Section 1, dated May 23, 1985, came into

force on May 24, 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 the 10th May, 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

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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.”

436) The Bill as introduced sought to make provisions for

combating the menace of terrorists and disruptionists, inter

alia, to—

(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.

437) The said Act No. 31 of 1985 was due to expire on May

23, 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

(Act 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 May 23, 1987 which came into force w.e.f. May 24,

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Page 704

1987. However, this Act repealing the Ordinance, received

the assent of the President of India on September 3, 1987

and was published in the Gazette of India, Extra., Part II,

Section 1, dated September 3, 1987. The scheme of the 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

438) 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.”

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439) 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 or 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.”

440) 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 organization 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

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441) India has played a major part in strengthening

international consensus against terrorism in UN, 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

442) 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 had

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,

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has been a victim on several occasions. An indicative list of

recent terrorist attacks on India as furnished by learned

senior counsel for the CBI is provided below:

S.No. Date of Attack

Place of Attack No. of Bomb Blasts

No. of Persons killed

1. 12.03.1993 Bombay 13 257 2. 14.02.1998 Coimbatore 13 46 3. 13.12.2001 New Delhi - 9 4. 25.09.2002 Akshardham - 29 5. 06.12.2002 Mumbai (Ghatkopar) - 2 6. 25.08.2003 Mumbai (Zaveri

Bazaar) - 50

7. 29.10.2005 Delhi 3 60 8. 11.07.2006 Mumbai (Local trains) - 209 9. 25.08.2007 Hyderabad 2 42 10. 23.11.2007 Lucknow, Varanasi,

Faizabad - 18

11. 13.05.2008 Jaipur 9 63 12. 25.07.2008 Bangalore 9 2 13. 26.07.2008 Ahmedabad 21 56 14. 13.09.2008 Delhi 5 30 15. 26.11.2008 Mumbai - 172 16. 13.02.2010 Pune - 17 17. 13.07.2011 Mumbai 3 26 18. 07.09.2011 Delhi ( outside Delhi

High Court) 1 12

19. 13.02.2012 Delhi (Israeli Embassy Official’s

car)

Injured Persons 4

443) Terrorist attacks are not only limited to India but

several terrorist attacks have also been taken place in

countries around the world. Following is a list of select

terrorist attacks outside India:

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S.No. Date of Attack

Place of Attack No. of Bomb Blasts

No. of Persons

killed 1. 11.09.2001 NY and Washington

DC, USA 4 Nearly 3000

2. 12.10.2002 Bali, Indonesia 3 202 3. 11.03.2004 Madrid, Spain 10 191 4. 07.07.2005 London, England 4 52

Supreme Court of India on Terrorism:

444) 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. In Hitendra Vishnu

Thakur & Ors. vs. State of Maharashtra & Ors., (1994) 4

SCC 602, one of the key questions for consideration of this

Court was in relation to the applicability of Section 3(1) of

TADA. This Court held that while offences mentioned in

Section 3 of 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

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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 fall out 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)

445) Girdhari Parmanand Vadhava vs. 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 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

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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) of TADA. For constituting “terrorist activity” under Section 3(1) of 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) of 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) of TADA besides convicting each of them under Section 120-B and Section 302 read with Section 120-B of the IPC.”

(emphasis supplied)

446) In State through Superintendent of Police,

CBI/SIT vs. Nalini & Ors., (1999) 5 SCC 253, 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) of TADA as follows:

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“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)

447) In Mohd. Khalid vs. State of West Bengal, (2002) 7

SCC 334, 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 the Statement of Objects and Reasons leading to enactment of the 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

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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 fro the date of its commencement. But noticing the continuance of menace, that too on a larger scale TADA has been enacted. 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 11th September, 2001 amply show it. Attack on the Parliament on 13th December, 2001 shows how grim the situation is, TADA is applied as an extreme measure when 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 section of people would depend upon the facts of each case.”

(emphasis supplied)

448) Nazir Khan & Ors. vs. State of Delhi, (2003) 8 SCC

461 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 the IPC and TADA. This

Court, while hearing their appeals, challenging the judgment

of Designated TADA Court, which had awarded death and life

sentences to certain accused persons, made detailed

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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. Schmid 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”. (emphasis added)

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)

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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. Schmid 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 (organization), (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.” (Schmid, 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

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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)

449) In Madan Singh vs. 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

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the offence committed was rightly charged under Section 3

of 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.”

450) In People’s Union for Civil Liberties and Anr. vs.

Union of India, (2004) 9 SCC 580, the constitutional validity

of various provisions of the Prevention of Terrorism Act,

2002 (“POTA”) were challenged. While upholding the

constitutional validity of POTA, this Court discussed domestic

and international authorities on terrorism and observed that:

“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

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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 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. 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

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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.

451) Terrorism is a major problem that is reoccurring 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.

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(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.

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 put our sincere efforts to fight terrorism, we

will not be able to curb this menace.

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Role of Pakistan in the Blasts:

452) 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

recognized 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.

453) In the relevant scenario, the accused arrived in Pakistan

for training and they were received by ISI operatives who

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took them out of the airport without observing any

immigration formalities. Meaning thereby, they had a green

channel entry and exist 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.

454) 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 UN and various multilateral

treaties emphatically promote all states to work together

urgently to bring to justice the perpetrators, organizers or

those harbouring the perpetrators, organizers and sponsors

will also be held accountable.

455) In the light of the Para 2 of the UNSC Resolution No.

1373 adopted under Chapter VII of the UN Charter, every

State has the following obligations to perform:-

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Page 722

(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 heavens.

(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

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Page 723

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 thorough measures for

preventing counterfeiting, forgery or fraudulent use of

identity papers and travel documents.

456) With regard to the facts available in the case at hand,

the role attributed by the neighbouring State can be

summarized 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

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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 above said persons were taken to Dubai from

where they were taken to Islamabad Airport and were

received by ISI operatives, who took them out of the

Islamabad Airport without observing any immigration

formalities after completion of training.

(6) No immigration formalities were observed when they

left Islamabad for Dubai.

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Page 725

(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.

457) 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 organized

and methodically carried out by Dawood Ibrahim (AA), Anees

Ibrahim, Mohd Dossa and Salim Bismillah Khan (since

deceased). The training received in Pakistan materialized in

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the unfortunate serial blasts in Bombay, India on 12th March

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.

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Page 727

Role of Police Officers: 458) In a civilized era, every country is governed by 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.

459) 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

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

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Page 728

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 ammunitions under

suspicious circumstances.

460) Unfortunately, in the present case the police officers

themselves have taken active part in smuggling and

transportation of arms and explosives in Bombay.

461) 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 the Bombay police officials had been able to

curtail the conveyance of the contraband in January and

February 1993, the occurrence of 12th March 1993 could

have been avoided.

462) With regard to the facts and circumstances of the

case in hand, the role played by police personnel of different

ranks can be summarized as under:-

(1) A-116, who was Sub. Inspector Incharge of

Shreevardhan Police Station and had jurisdiction over

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Shekhadi and Dighi Jetty, where illegal landings of arms

and explosives took places and 7 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

09.01.1993.

(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, alongwith 7 Constables intercepted the convoy

carrying smuggled contraband, on the night of

09.01.1993. 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 lacs.

(4) The bribe amount was paid later on, to A-116, who

released the five silver bricks.

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(5) The said bribe amount was distributed among all the

Police Personnel on two occasions to Mahasala Police

Station, Shrivardan Police Station and Borali Outpost.

(6) Substantial amounts have been seized from each of the

above noted 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.

463) 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 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.

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Role of Customs Officers: 464) 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 country’s

security.

465) 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

ammunitions causes wreckage not only to the economy but

also to people’s lives.

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466) 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.

467) Custom 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 summarized 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

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Page 733

A-30 prove the role played by the Customs officers in

the conspiracy.

(4) On 06.01.1993, A-102 and A-90, with some other

customs staff members, attended a meeting at Hotel

Parsian Darbar, Panvel with Mohd. Dossa (AA), A-134

and A-136, where the Customs Officers agreed to

charge Rs. 7 to 8 lacs from Mohd. Dossa group for each

landing.

(5) On 08.01.1993, 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

06.02.2010]

(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 09.01.1993. A-82 even permitted A-30

to drive a customs jeep when they went for

negotiations.

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Page 734

(7) Collector Customs (PW-470), on receipt of information

from DRI, through a DO letter dated 25.01.1993,

conveyed to all the Customs Officers (accused) and

others that the ISI Syndicates located in 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 Mhasala on 29th, 30th and 31st Jan.

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 Mahasala-Goregaon Road, A-

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Page 735

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 organized by Tiger Memon.

(11) Landing of arms and explosives did take place on the

night of 2nd and 3rd Feb. 1993. Tiger Memon and other

accused participated in the landing.

(12) When the landing was being done, PW-171 (another

Addl. 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 & Preventive,

Srivardhan 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 02.02.1993, A-90 and A-82

reached the place of landing and met A-14 and Tiger

Memon. They enquired from Tiger Memon whether the

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landing was for weapons. Tiger Memon replied in

negative.

(14) Another landing took place on the night of 7th and 8th

Feb. 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.

468) 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.

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Page 737

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Page 738

Lack of vigilance in the Indian Maritime Zone and Indifference on the part of Coast Guards:

469) 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 overall seaward

security of 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 scrutinize and monitor

every commodity which enters the Indian boundaries.

470) 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 12th

March 1993 discloses the deficient performance of the

officials.

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471) 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.

472) 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 the ample scope for coast

guards to assist the customs and other authorities in anti-

smuggling operations necessary for protection of our long

coastline.

473) 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 any military troops. Only

well strategized coast guards and high morale customs

officers can prevent any opportunity for the terrorists to

attack on our country via our maritime boundary.

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Page 740

Quantum of Sentence:

474) 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.

475) Before we deliberate and decide upon the role played

by each of the appellants and their respective sentence,

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:

476) 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

civilization. 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 judgments on death penalty from

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Page 741

1950 to 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

(supra) 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-recognized principles crystallized 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

casted upon the judges in deciding the appropriate sentence

is a matter of judiciousness and not of law.

477) 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 vs. State of

Punjab, (1983) 2 SCC 277 in which their Lordships struck

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down Section 303 of the IPC as unconstitutional, which

provided for compulsory imposition of death sentence. As a

result, the corresponding provision of TADA Act had also

provided for the alternative sentence of life imprisonment

thus bringing the provision in line with the provision of 302

of IPC. Section 3(2)(i) of TADA now prescribes death or life

imprisonment in 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.

478) 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 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.

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Page 743

479) The very first case where the constitutional validity of

capital punishment was vehemently discussed and decided

was in Jagmohan Singh vs. State of U.P (1973) 1 SCC 20.

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.

Section 367(5) of the old Code reads as follows:-

“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.”

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 1st April, 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.

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Page 744

Amended section 354(3) of the Code reads as follows:-

“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'.

480) What are these ‘Special Reasons’ and does the

provisions of the Code help us in discovery of these special

reasons? A reference to Bishnu Deo Shaw vs. State of

West Bengal (1979) 3 SCC 714 case would be helpful to

understand what actually are these special reasons refers to.

Justice Chinnappa Reddy 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

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Page 745

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 extra-ordinary 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 circumstance, 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

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Page 746

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."

'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.

481) In brief, Justice Reddy said that ‘Special Reasons’

necessary for imposing death sentence must relate, not to

the crime as such but to the criminal. In the same line of

thought in Rajendra Prasad vs. State of UP (1979) 3 SCC

646, this Court, by majority judgment, observed:

“83…. '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 jeopardizing 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 psycho-therapy 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

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Page 747

crimes social justice steps in to demand penalty dependent on the totality of circumstances.”

482) Subsequent decision, Dalbir Singh and Ors. vs.

State of Punjab (1979) 3 SCC 745 also endorsed this view.

483) 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?

484) There were no provisions as such until the Law

Commission recommended in its 48th report observing

that:-

“It is now being increasingly recognized that rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to characteristics and background of the offender.

The aim of sentencing:--- Themselves abscure becomes all the more so in the absence of information on which the correctional process is to operate. The public as well as the courts themselves are in 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

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Page 748

and both the prosecution and the accused should be allowed to co-operate in the process.”

485) By enacting Sub-section (2) of 235, the 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 normal path of conformity with the law etc… in

deciding the quantum of sentence.

486) 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 (supra) wherein the need for reconsideration of

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Page 749

Jagmohan Singh (supra), was felt necessitated due to

subsequent events and changes in law. In addition, a query

was raised whether dictum in Rajendra Prasad (supra)

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.

487) The principal questions, which were considered, in this

case are:

I. Whether death penalty provided for the offence of murder in Section 302, Indian Penal Code is unconstitutional.

II. If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Sec, 354(3) of the Cr.P.C., 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 Indian Penal Code with death or, in the alternative, with imprisonment for life.

III. Whether the “special reasons” necessary for imposing the death penalty should relate to the criminal alone or even the crime.

488) The first main question was answered in negative,

indicating that the constitutional validity of death penalty

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Page 750

was upheld in the line of Jagmohan Singh (supra). The

second question 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's case. According to the then extant CrPC both the alternative sentences provided in Section 302, 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…..”

489) Accordingly, the second question was answered. With

regard to the third question regarding what constitutes

“special reasons”, the majority view clarified that the

expression “special reasons” will be in reference to the crime

as well as the criminal thereby overruling Rajendra Prasad

(supra) and Bishnu Deo Shaw (supra). It reads as

follows:

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Page 751

“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 the Code of 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 water-tight 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.”

“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, Penal Code, the Court should not confine its consideration "principally" or merely to the circumstances connected with particular crime, but also give due consideration to the circumstances of the criminal.”

490) As a consequence, the majority view in Bachan Singh

(supra), 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

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Page 752

Section 302 or in the context of this case in Section 3(2)(i) of

TADA will have to be identified by balancing the aggravating

and mitigating or extenuating circumstances.

491) 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 crime will be

aggravating, likewise all circumstances relating to criminal

are mitigating. From the above conspectus, it is clear that

the aggravating circumstances pertaining to both crime and

criminal are the reasons, which can be against the accused;

likewise the mitigating circumstances marshaled from both

crime and criminal can be the reasons in favour of the

accused.

492) 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 crime

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Page 753

and not the criminal. Hence, a careful evaluation of

aggravating and mitigating circumstances pertaining to both

criminal and crime is the approach to ascertain the special

reasons for imposing the extreme penalty on a person.

493) 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 aggravating and mitigating

circumstances.

494) 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.

495) For convenience, we shall discuss Yakub Abdul Razak

Memon’s appeal discretely as against the other 10

appellants.

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Page 754

Criminal Appeal No. 1728 of 2007 Yakub Abdul Razak Memon (A-1)

Before we shall 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 blasts on 12th March, 1993 in comparison with

other appellants. Our legal system has always emphasized

that the sentence shall reflect the relative significance of the

accused’s role.

496) 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, had played a significant

role in the context of the blasts which is important while

determining the sentence. The confessional statements of

co-accused discussed in earlier part of judgment under A-1’s

appeal establish the dominating position of the appellant in

comparison with other 10 appellants.

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Page 755

497) At the cost of repetition, we may reiterate the conduct

of A-1, which may be very relevant for ascertaining his

dominant position in commission of the crime.

498) The following conduct of the appellant (A-1) along with

the co-conspirator family members may be relevant:-

a) The confessional statements of various co-accused

make a mention that Tiger Memon has instructed

them to stay in touch with A-1 for further

instruction. 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 other

accused thereby signifying the trusted position

that A-1 has 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 task of handling the explosive

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Page 756

bags and for their safe keeping, which is again

revealed in the confessional statements of various

co-accused persons.

c) Furthermore, he was actively involved in hawala

transactions for the purpose of facilitating the

blasts on 12th March 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.

499) Essentially, A-1’s deeds can’t be viewed distinct

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 the daylight. From this conduct, it is not

hyperbole to state that, he was one of the ‘driving sprit’

behind the plan of the 1993 blasts, whereas the other

appellants played a far lesser role and thus a lesser

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Page 757

contribution to the crimes resulting from this plan. To be

clearer on the dominant position, the blasts on 12th March,

1993 was 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.

500) 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 at

the role-played by A-1. Since A-1 as well as other absconders

were the real conspirators who hatched the scheme for such

a tragic act, the other 10 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.

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Page 758

501) We are mindful of the fact that there is no direct act

attributed to A-1 as far as parking of the explosives filled

vehicle 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 materialized. Furthermore, it is not conceivable to

envisage that these principal perpetrators will take the

execution in their hands. So they targeted the meek souls

who were underprivileged and easily impressible to

accomplish their ulterior motive. It is also a proved fact that

the Memon’s family members including A-1 have fled the

country anticipating detention for their illegal acts.

502) 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.

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Page 759

503) The following aggravating circumstances as against A-1

can be culled out:-

Aggravating Circumstances:

1. A-1 was one of the brains behind the hatching of larger

conspiracy for the Bombay Bomb Blasts in 1993.

2. The dominant position and significant role played by A-

1 is a factor that may aggravate his punishment.

3. The “vulnerability of the victims” and “the depravity of

the crimes” constitute additional aggravating

circumstances.

4. Crime of terrorism is in itself an aggravating

circumstance as it carries a “special stigmatization”

due to the deliberate form of inhuman treatment it

represents and the severity of the pain and suffering

inflicted.

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Page 760

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:

504) Mr. Jaspal Singh, learned senior counsel submitted the

following as the mitigating circumstances to reduce the

severity of the sentence of A-1.

• He is a Chartered Accountant by profession and a

respectable person in the society before the

occurrence of this incident.

• Learned senior counsel emphasized 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,

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Page 761

the act of A-1 returning to India unlike other

absconders is in itself a mitigating circumstance in his

favour.

• No criminal antecedent.

• He suffers from depression since 1996.

• Lastly, he had served more than 19 years in jail.

505) In our considered opinion, the argument of 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 the contrary. We accept

the contention of 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.

506) 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

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Page 762

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.

507) 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.

508) We shall now discuss the appeals filed by rest of

the appellants sentenced to capital punishment by the

Designated Court.

509) The above said 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 10 appellants with A-

1. Though the incident of bomb blasts is not a brainchild of

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Page 763

these 10 appellants yet they turned the conspirators’ orders

into action by executing the blasts for which they are

indisputably liable for the consequence of their acts. Every

person is responsible for his or her actions and they can’t

evade the accountability by placing the responsibility to

another person. At the same time, our legal system

mandates that the sentence shall reflect the relative

significance of the accused’s role.

510) The following are the aggravating circumstances with

regard to the above said appellants:-

Aggravating circumstances

1. They underwent special training in Pakistan for the

purpose of executing the blasts in India.

2. These accused persons/individuals parked the vehicles

with explosives at different spots as directed by their

masterminds for the explosion of bombs.

3. Crime of terrorism is in itself an aggravating

circumstance as it carries a “special stigmatization”

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Page 764

due to the deliberate form of inhuman treatment it

represents and the severity of the pain and suffering

inflicted.

4. The “vulnerability of the victims” and “the depravity of

the crimes” constitute additional aggravating

circumstances.

5. The manner of its execution and its design is at a level

of extreme atrocity and cruelty.

Though the aggravating circumstances remains the

same for all the 10 appellants, but their mitigating

circumstance differ from individual to individual. Therefore,

we shall catalog the mitigating circumstances independently

for each accused.

511) The following factors may be relevant while

ascertaining the mitigating circumstances:-

Criminal Appeal Nos. 609-610 of 2008

Learned counsel for the appellants submitted that all

the three appellants (A-32, A-36 and A-39) have been in

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Page 765

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 learned

counsel, during the above said 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.

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

the society. He used to make and sell brooms to eke out his

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Page 766

livelihood and is suffering from a cardiac ailment. Insofar as

A-39 is concerned, 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, learned

Judge granted him bail and he was on interim bail for about

4 ½ months. In a nutshell, their mitigating circumstances

can be summarized as under:-

Mitigating Circumstances (A-32):

1. At the time of arrest, he was 21 years of age.

2. He shows remorse for his role in the blast.

3. Lack of prior criminal record.

4. He cooperated in the investigation.

5. He suffers from Bone Tb, Arthritis, which severely

affected his right shoulder and arm bone; he further

suffers from paralysis, which has affected right side of

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Page 767

his face. He has developed glands in his testicles and

developed ailment at cervical vertebrata. He has been

suffering from cervical vertebrata. On the whole he has

been suffering from illness for the past 8 years and has

been operated twice during the said period.

6. Family circumstances: He has sick parents and mentally

retarded brother to look after.

7. He was a mechanic by profession.

8. He is in custody since 18.04.1993.

A36’s Mitigating Circumstances:

1. At the time of arrest, he was 32 years of age.

2. He shows remorse for his role in the blast.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. He suffers from cardiac ailment.

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Page 768

6. Family circumstances: He has old mother, wife and

three children to look after.

7. Before the blasts, he was earning his livelihood by

making and selling broom in the market.

8. He is in custody since 18.04.1993.

A39’s Mitigating Circumstances:

1. He shows remorse for his role in the blast.

2. Lack of prior criminal record.

3. He co-operated in the investigation.

4. He suffers from psychiatry problem and was treated

for the same while in custody.

5. Family circumstances: He is unmarried and has old

mother to look after.

6. He used to work for the relief camps setup for

helping persons affected by riots.

7. He is in custody since 1993

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Page 769

Criminal Appeal Nos. 628-629 of 2008

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 for

higher studies. It was also brought to our notice that before

the incident, he was earning his livelihood by selling

readymade garments. The abovesaid submission can be

summarized as under:-

A44’s Mitigating Circumstances:

1. At the time of arrest, he was 37 years of age.

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Page 770

2. He shows remorse for his role in the blasts.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. He used to sell readymade garments in the streets.

6. He is in custody since 19.05.1993.

Criminal Appeal Nos. 637-638 of 2008

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

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Page 771

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 there is any

adverse report from the jail authorities. In a nutshell, their

mitigating circumstances can be summarized as under:-

A10’s Mitigating Circumstances:

1. At the time of arrest, he was aged about 31 years.

2. He shows remorse for his role in the blasts.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. Family circumstances: He is unmarried and has old

parents to look after.

6. He used to work as an Accountant of Tiger Memon

(AA).

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Page 772

7. He acted under extreme duress because he was

under substantial domination of the main

conspirator.

8. He is in custody since 12.03.1993.

A29’s Mitigating Circumstances:

1. He is an illiterate person.

2. He shows remorse for his role in the blasts.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. Family circumstances: He has a young child and wife

to look after.

6. He is in custody since 1993

Criminal Appeal No. 365 of 2008

Ms. Farhana Shah, learned counsel for the appellant

(A-9) submitted that the appellant has been in custody since

his arrest on 17.03.1993. According to her, during his entire

period of custody for more than 19 years, there is not even a

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Page 773

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.

In addition to the same, learned counsel pointed out

that though he 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 bed-

ridden and waiting for his return.

A9’s Mitigating Circumstances:

1. He shows remorse for his role in the blasts.

2. Lack of prior criminal record.

3. He co-operated in the investigation.

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4. Family circumstances: He is unmarried and has old

parents and siblings to look after.

5. He was a salesman in a shopping center.

6. He is in custody since 17.03.1993.

Criminal Appeal Nos. 864-865 of 2008

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

18.03.1993. 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.

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A11’s Mitigating Circumstances:

1. At the time of arrest, he was aged about 44 years.

2. He shows remorse for his role in the blast.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. Family circumstances: He has aged parents and two

unmarried daughters to look after.

6. He used to be a taxi driver.

7. He is in custody since 18.03.1993.

Criminal Appeal No. 897 of 2008

With regard to 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

20.03.1993. 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

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Page 776

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

death of his father and mother.

In addition to the same, learned counsel also pointed

out that though he 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, learned counsel prayed for leniency in his

sentence.

A12’s Mitigating Circumstances:

1. At the time of arrest, he was aged about 25 years.

2. He completed his graduation in jail.

3. He shows remorse for his role in the blasts.

4. Lack of prior criminal record.

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5. He co-operated in the investigation.

6. Family circumstances: He has old parents, wife and a

son to look after.

7. He used to be a mechanic.

8. He is in custody since 20.03.1993.

Criminal Appeal Nos. 941-942 of 2008

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

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claim, learned counsel has submitted his medical reports for

perusal of this Court.

A-16’s Mitigating Circumstances:

1. He shows remorse for his role in the blasts.

2. Lack of prior criminal record.

3. He co-operated in the investigation.

4. He is undergoing psychiatric treatment for the last 9

years and was admitted to the prison hospital for 15

months.

5. Family circumstances: He has old mother, wife and

three children to look after.

6. He was earning his livelihood by making and selling

brooms in the market.

7. He is in custody since 24.03.1993.

512) At the outset, we can classify these mitigating

circumstances into seven heads, namely, age, act of

remorse, no prior criminal antecedents, co-operation with

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Page 779

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.

513) 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 vs. 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

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Page 780

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.

514) Furthermore, as we have already narrated, all the

above said 10 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

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Page 781

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.

515) 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 10 appellants.

516) Technically, it is these 10 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 10 appellants. This may not help in complete

exoneration of the liability of these 10 appellants but the

degree of punishment must necessarily reflect this

difference. It is vital to remember that ‘but for’ the

masterminds, this blast should have never seen the daylight.

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517) Accordingly, to differentiate the degree of punishment

to A-1 and other 10 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.

518) 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 10 appellants cannot be a

precedent in other cases and every case must be decided

according to their facts and circumstances.

519) In view of the above, it is apt to quote a decision of this

Court in State of U.P. vs. 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:-

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Page 783

“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 could not 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

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Page 784

“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.”

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Life Imprisonment Means Rigorous Imprisonment:

520) There was a misperception that life imprisonment is

distinct from the punishment of rigorous or simple

imprisonment shown in clause (4) of Section 53 of the Code

of Criminal Procedure. This issue was clarified in Md.

Munna vs. UOI and Ors./Kartick Biswas vs. State of

West Bengal and Ors. (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:

521) 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

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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.

522) As observed in State of Uttar Pradesh vs. Sanjay

Kumar , (2012) 8 SCC 537, 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.

523) 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

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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 fulfillment 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.

524) As rightly observed by this Court in Sangeet and Anr.

vs. State of Haryana, 2012 (11) Scale 140, 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

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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.

525) 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 off on

the above terms. We may add a footnote to the above

conviction that the executive should take due consideration

of judicial reasoning before excising the remission power.

526) 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.

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Death Ref. Case (Crl.) No. 1 of 2011

State of Maharashtra through CBI .... Appellant (s)

vs.

Yakub Abdul Razak Memon & Ors. ....

Respondent(s)

527) In view of the conclusion arrived at in respect of the

above said 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 rest of the appellants convicted under

this part. The Death Reference is disposed of accordingly.

.…………………………J. (P. SATHASIVAM)

……………………….. …J. (DR. B.S.

CHAUHAN)

NEW DELHI; MARCH 21, 2013.

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Annexure ‘A’

S N o

Criminal Appeal Accused Name and Number. Sentence by Designated Court

Award by Supreme Court

1 1728/2007 Yakub Abdul Razak Memon (A-1) Death Sentence Confirmed 2 609-610/2008 Zakir Hussain Noor Mohd. Shaikh

(A-32) Abdul Khan @ Yakub Khan Akhtar Khan (A-36) Firoz @ Akram Amani Malik (A- 39)

Death Sentence

3 628-629/2008 Mohammed Mushtaq Moosa Tarani (A-44)

Death Sentence

4 637-638/2008 Asgar Yusuf Mukadam (A-10) and Shahnawaz Abdul Kadar Qureshi (A-29)

Death Sentence

5 365/2008 Mohammed Shoeb Mohammed Kasam Ghansar (A-9)

Death Sentence

6 864-865/2008 Abdul Gani Ismail Turk (A-11) Death Sentence 7 897/2008 Parvez Nazir Ahmed Shaikh (A-

12) Death Sentence

8 941-942/2008 Mohd. Farooq Mohammed Yusuf Pawale (A-16)

Death Sentence

79