IV. Tulsi Ram Dhondu Surve (A-62) : Vs. State of Maharashtra
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Conviction under – Bombay Blast case – A62, a chowkidar at Wangni tower – Met A-14 and agreed to help in smuggling of silver and other goods by keeping the same in tower in return of illegal gratification – Confession of A-62 – Corroboration by confessional statement of other accused/deposition of PWs. Conviction under Section 3(3) of TADA, by Designated Court, held, needs no interference.
176. He was a watchman at the Wangni Tower which was permitted to be used by the appellant (A-62), for the reloading of weapons and explosives from one vehicle to another. The appellant (A-62) has been charged for criminal conspiracy, and in addition thereto, for his participation in the landing and transportation of arms, ammunition, hand grenades and explosives like RDX to be used in the Bombay blast on 12.3.1993.
176.1 He has been further charged with abetting and facilitating acts that were preparatory to the main terrorist acts, in January to February 1993 at Shekhadi and places close by, as well as at Wangni Tower, District Raigad. The main terrorist acts were executed in Bombay on 12.3.1993 in the form of multiple bomb Blast. This was done by the appellant (A-62), permitting Dawood @ Dawood Taklya (A-14), Tiger Memon (AA) and his associates to use the said premises for the purpose of facilitating the smuggling and landing of arms, ammunition, handgrenades and explosives like RDX, which were smuggled into the country by Tiger Memon and his associates on 3rd and 7th February, 1993. The tower was used for re-loading and transportation of the contraband into Bombay and other places.
176.2 He has further been charged with permitting Dawood Taklya (A-14), Tiger Memon (AA) and his associates to conceal 59 bags of RDX explosives in his agricultural field which were removed subsequently by the terrorists.
176. 3 He has further been charged, being a government servant, of having failed to furnish information in relation to the smuggled weapons, which he was legally bound to do and can therefore, be said to have committed the offence punishable under Section 202 IPC.
177. The appellant (A-62) has been acquitted of the first charge. However, he has been given the sentence of 9 years alongwith a fine of Rs.50,000/- and in default of payment of fine, he has been ordered to suffer further RI for one year under Section 3(3) TADA, and of 6 months alongwith a fine of Rs.5,000/- under Section 202 IPC.
178. Ms. Farhana Shah, learned counsel for the appellant has submitted that the appellant (A-62) was a watchman at the Wangni tower and that he had no knowledge of the contents of the contraband goods. Moreover, he has served over 6 years of the sentence awarded to him. He should at most therefore, be tried under Section 202 IPC. Hence, the appeal deserves to be allowed.
179. Shri Mukul Gupta, learned senior counsel appearing for the State has submitted that he was aware of the contents of the smuggled goods as the same had been unloaded in front of him. Therefore, the appeal deserves to be dismissed.
180. We have heard learned counsel for the parties and perused the record.
181. Evidence against the appellant (A-62):
(a) Confessional statement of the appellant (A-62)
(b) Confession of Dawood Taklya (A-14)
(c) Confession of Sharif Abdul Gafoor Parkar (A-17)
(d) Confession of Munna @ Mohammed Ali Khan (A-24)
(e) Confession of Rashid Umar Alware (A-27)
(f) Confession of Khalil Ahmed Sayed Ali Nasir (A-42)
(g) Confessional statement of Sajjad Alam (A-61)
(h) Deposition of Harish Chandra Surve (PW.108)
(i) Deposition of Vijay Govind More (PW.137)
(j) Deposition of Ravindra Sarant (PW.145)
(k) Deposition of Vyankatesh Hirba (PW.588)
182. Confessional Statement of Tulsi Ram Dhondu Surve (A- 62):
In his confession, Tulsiram Dhondu Surve (A-62) has disclosed that he had been working as a watchman at the Tower alongwith other employees, namely, Harish Chandra Surve (PW- 108) and Vijay Govind More (PW-137). He has disclosed that one and a half years prior to the recording of his statement, one Sharif Adhikari of Mhasla had brought Dawood Phanse (A-14) to him, who had asked the said appellant (A-62) to help them in the smuggling of silver and other goods, by allowing them to keep the same in the Tower for some time, in return for some consideration, and that he had agreed to the same. At night, 9-10 persons had come alongwith Tiger Memon (AA), and one truck and a jeep. They had loaded the goods into a tempo from the truck. At the said time, Tiger Memon (AA) and his associates had been armed with guns and pistols, and after completing the loading they had all left the Tower. The appellant (A-62) had been paid Rs.1000/- for each occasion, which he had shared with other persons. He also received 10 acres of land in his name, which was a benami property, as the same belonged to Dawood (A-14). He has further disclosed that he had also been paid a sum of Rs.2000/- and for two or more trips, a sum of Rs.6000/- which he had distributed among others.
183. Confessional Statement of Sajjad Alam (A-61) :
In his confession, he has corroborated the evidence available as regards the meeting with Tulsiram Dhondu Surve (A-62). Though Dawood Taklya (A-14) did not name him, he has corroborated the evidence of the other co-accused by stating that A-62 had been helping them at the Tower for loading and unloading etc. Khalil Ahmed (A-42) has stated that when the smuggled goods were being reloaded, the same consisted of 59 gunny bags containing a cement like black soap, 91 boxes and 7 long canvas bags. Vijay Govind More (PW-137) has deposed that the landing had taken place in February 1993, and that the goods had then been brought to the Tower and that from there, the same were shifted into the jeep. He has identified the appellant (A-62) in court. Ravindra Sawant (PW-145) was the panch witness for the recovery of goods at the Tower, and has also identified A-62 in court.
184. Deposition of Vijay Govind More (PW.137)
He deposed that at the relevant time he was working as labourer at Wangni Micro Wave Tower since 1986 to 1993. In October 1992 he was on duty at Wangni Tower alongwith Harishchandra Surve. On that day appellant (A-62) was also on duty at the Tower and the appellant (A-62) told them that one party shall come at the Tower on the said day in the night. Appellant (A- 62) after his duty left Wangni Tower for his residence and returned at about 7.30 to 8.30 p.m. At about 9.30 p.m three persons came by a Maruti car at Wangni Tower. Out of them, Sarfaraj Phanse called for appellant (A-62) and asked him to arrange for tea. Appellant and the witness prepared tea. Subsequently, Tiger Memon, Dawood Phanse, Sharif Adhikari, Abdul Gharatkar, Dadamiya Parkar also came there. At about 11 p.m., a truck came at Wangni Tower. Following the same, one tempo and two jeeps also arrived. The goods which had been brought in the said truck were loaded into jeeps and tempo and then all the vehicles left the Tower. Again in February 1993 when the witness was on duty, the appellant (A-62) told him that goods of Dawood Phanse had to arrive. After the duty hours, appellant (A-62) went to his house and again returned to the tower in the evening. At about 8.30 p.m., three persons came by a car. One of them was Iqbal whom the witness had seen at Wangni Tower in earlier trip alongwith others. After about 11 p.m., one truck, two jeeps and a tempo arrived at Wangni Tower. Dawood Phanse, Sharif Adhikari, Abdul Gharatkar, Dadamiya Parkar also came. Just thereafter, Dawood Phanse and his companions arrived in a jeep. This witness identified the appellant (A-62) and other accused, namely, accused nos.14, 17, 28, 42, 60, 61 and 73.
185. After due consideration of the entire evidence on record, the Designated Court came to the conclusion that as the appellant (A- 62), was involved in the Shekhadi landing operation, he has committed the offence under section 3(3) TADA. The appellant (A-62) being a watchman of the Wangni Tower i.e. government premises, had allowed the same to be used for purpose of facilitating the smuggling and landing of arms, ammunition, hand grenades and explosives that was organized by Tiger Memon (AA) and his associates. The appellant (A-62) had also permitted the co-accused to conceal 59 bags of RDX explosives in his field. Hence he was held guilty for the offence punishable under Section 3(3) TADA.
186. So far as appellant (A-62) is concerned, the evidence on record, particularly the confessional statement of the appellant (A- 62), which has been duly supported by the other material on record, clearly reveals that being a watchman of government premises i.e. Wangni Tower he had allowed the same to be used for the purpose of facilitating the smuggling and landing of arms, ammunition, handgrenades and explosives as organized by Tiger Memon (AA) and his associates. The evidence further establishes his involvement in concealing 59 bags of RDX explosives in a field existing in his name. Thus, he has rightly been convicted by the learned Special Judge under Section 3(3) TADA and Section 202 IPC. Being a government servant, he has intentionally omitted giving information to the authorities about the offences committed in his presence, which he was legally bound to do. Thus, no interference is required in his order of punishment.