Mohammed Farooq Mohammed Yusuf Pawale (A-16) Vs. The State of Maharashtra thr. CBI-STF, Bombay

by Court Verdict · February 21, 2013

Appeal: Criminal Appeal Nos. 941-942 of 2008

Petitioner: Mohammed Farooq Mohammed Yusuf Pawale (A-16)

Respondent: The State of Maharashtra thr. CBI-STF, Bombay

Apeal: Criminal Appeal Nos. 941-942 of 2008

Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.

Date of Judgment: Feb 21, 2013

Head Note:

Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3, 5, 6, 15 – TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Section 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872 Conspiracy Charge Proof Evidence Bombay blast case Confessional statement of accused P (A16) Statement recorded by DCP Full compliance of safeguard of law Gave full details of his involvement in conspiracy to carry out blasts in Bombay including meeting he attended Took training in Pakistan Helped in landing of various bags in dock Surveyed Air India Building with others and also stock exchange building Took Ambassador car and left near Air India Building – Also parked Maruti Car at sena Bhawan. Held that he was fully conscious of conspiratorial designs and willingly participated in conspiracy.

Sections 3, 5, 6, 15 – TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Section 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872 – Bombay blast case Evidence Appreciation – Confession of accused Later retracted Effect His statement corroborated by statement of approver He was seen by PW while parking car near petrol pump as PW had objected to parking at petrol pump Driver of car examined as PW Plea that accused had got off the car before parking If accused not responsible If PW is not reliable as he has not mentioned height of accused and doctor treating his injury was not examined. Held that colour & complexion was important. Witness was not having any bleeding injury. Hence non-examination of doctor is not fatal.

Sections 3, 5, 6, 15 – TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Section 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872 – Bombay blast case Evidence Role of P (A16) Accused taking white Maruti car with driver Wanted to park near Shiv Sena Bhawan – Altercation with PW Ultimately driver parked car near compound wall of petrol pump and both left PW identified driver and accused Contention that accused was not there until parking of car and hence not responsible for blast Police arrived at site after blast Sample collected under Panchnama FSL report confirming presence of RDX Witnesses deposing about purchase of car in fictitious name and address – Several witnessess who suffered injuries and relatives of dead, examined. Held that it is proved that accused had planted vehicle bomb at Shiv Sena Bhawan where explosion caused massive damage to life and property. (Para 420-423)

Sections 3, 5, 6, 15 – TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Section 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872 – Bombay blast case Evidence Role of accused P (A16) Explosion at Air India Building – Confession of accused and coaccused Eye-witness to explosion, had witnessed parking of white Ambassador car Driver of car called by person in Maruti, which also arrived there and they left Soon thereafter explosion happened Said witness unable to identify this accused in court – Identification after about 2 years in court, though had identified in TIP. Held that other fact deposed by him cannot be discredited (Para 425)

Sections 3, 5, 6, 15 – TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Section 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872 – Bombay blast case Evidence Role of accused P (A16) Confession of accused and co-accused Several witnesses to damage to property and persons due to blast at Air India Building Injured witnesses also examined with doctors Connecting evidence of delivery of Ambassador car and person who purchased it Further evidence of PW who purchased jeep with MP numbers and who arranged Ambassador car and of PW who prepared cavity Police officers who carried out various activities providing necessary link and panch witnesses examined. Held that all evidence point to connection of accused. (Para 425-426)

Evidence Act, 1872
Section 9 Test Identification TIP conducted by Special Executive Magistrate Contention that SEM was unaware of guideline and rules framed by Bombay High Court in this regard and precautions to be taken thereof No guidelines issued by Govt. of Maharashtra for holding TIP, but only draft memorandum given. Held that procedure applied by SEM was known to him and TIP was conducted as per law. (Para 427)

Held:

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. (Para 408)

The appellant was playing a key role in furtherance of the conspiracy. The other accused, in their confessions under Section 15 of TADA have also discussed the role played by A-16 in the conspiracy. (Para 409)

From the confessional statements made by different co-accused, the following facts emerge:

i) A-16 had gone for training in handling weapons and explosives to Pakistan via Dubai along with other accused.

ii) A-16 was given fake name as Faizal which was used in Pakistan while training.

iii) A-16 was fully aware of the conspiratorial design and the plan to cause blasts and destruction in the city of Bombay at a large scale;

iv) A-16 knew that this was an act of retaliation by the conspirators and he was one of them;

v) A-16 had also participated in the landing of explosives and weapons at Shekhadi;

vi) A-16 had attended various meetings between the conspirators;

vii) A-16 was present at the time of filling of RDX/Black chemical in the vehicles at Al Hussaini Building;

viii) A-16 had taken oath on holy Quran that he would cause destruction and loss to the Hindu community as a revenge for what had happened on 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 Bhawan (Lucky Petrol Pump) and causing death and destruction. (Para 410)

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. (Para 410.1)

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. (Para 413.1)

He also participated along with other co-conspirators in loading the explosives like RDX fitted with time device detonators in various vehicles during preparation of vehicle bombs in the intervening night between 11/12th March, 1993. He surveyed and conducted reconnaissance 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. (Para 414)

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. (Para 415)

(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. A-16 had to get down from the car only because PW-11 did not permit the parking of the vehicle in front of the said Pump. A-16 had gone along with PW-2 to the place where the incident took place for the purpose of planting the vehicle. (Para 417)

For identifying the accused, it was not his height which was important but it was his colour and complexion which was important. (Para 418.1)

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. (Para 419)

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. (Para 420)

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 explosives laden vehicles at two locations and went to survey the third location. (Para 428)

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. (Para 429)

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. (Para 430)

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. (Para 432)

JUDGEMENT:

JUDGMENT (Contd.)
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.
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 (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 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 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.
403.1 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.
(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 reconnaissance 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.
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.
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:
(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)
(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 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)
(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)
(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 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:
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 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.
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.
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.
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.
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 Memons 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.
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)
409.1 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.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
409.2 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)
409.3 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.
(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)
409.4 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 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)
409.5 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.
409.6 The confessional statement of A-39 establishes that the conspirators were well aware of the motive of the conspiracy and had become a part of it and were also fully aware of the consequences of their actions. The training which was imparted to them was for the purpose of causing destruction in Bombay. It is conclusively established from this confession that all the accused who went for training in Pakistan were fully aware of the conspiracy and its motive.
Confessional Statement of Nasim Ashraf Sherali Barmare (A-49)
409.7 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)
409.8 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 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 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.
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.
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.
409.10 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 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)
409.11 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)
409.12 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and on 24.01.1995 by H.C. Singh (PW-474), Superintendent of Police, CBI/SPE/STF, New Delhi. The said accused referred to the role of the appellant (A-16) in his confession as follows:
i) He described the meeting near Soda Factory wherefrom all the participants (including A-16) went for the first landing at Shekhadi.
ii) On the way to Shekhadi, the accused stopped at a place where Abdul Gani had brought a black coloured bag which contained five AK-47/AK-56 rifles, revolver, magazines and cartridges.
iii) Around 60-70 large packets were smuggled by them.
iv) After the second landing, he transported smuggled arms and explosives from Hotel Persian Darbar to Mumbra with the appellant (A-16). On the way, the conversation between 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.
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.
409.13 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)
409.14 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)
409.15 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 placing his hands on Quran. A speech was given by Tiger regarding the riots in Bombay and about taking revenge.
409.16 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)
409.17 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 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.
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 Bhawan (Lucky Petrol Pump) and causing death and destruction.
410.1 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.
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 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 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 Babloos 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 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.
413.1 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 detonators in various vehicles during preparation of vehicle bombs in the intervening night between 11/12th March, 1993. He surveyed and conducted reconnaissance 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 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 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 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.
418.1 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.
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.
Deposition of S.S. Hande (PW-12)
420.1 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.
(iv) The witness also identified the appellant (A-16) in the Court.
420.2 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 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)
422.1 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)
422.2 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.
Deposition of Fazal Fruitwala (PW-363)
422.3 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)
422.4 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)
422.5 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 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.
423.1. 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.
423.2 The said witnesses (doctors) proved to have issued the medical certificates Exh. 2348 in respect of the above mentioned injuries.
423.3 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
423.4 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).
423.5 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).
423.6 The articles seized from the scene of the blast that took place at Shiv Sena Bhawan were sent to the Forensic Science Laboratory for opinion vide 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 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 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 further 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 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)
425.1 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 8 x 7 feet had been created in the porch.
(iii) The flooring of the first underground floor also had a similar crater and the second underground floor was visible through the craters that had been formed.
(iv) The building of 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)
425.2 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 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)
425.2 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.
(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)
426.1 Their deposition may be summarized as under:
(i) At 2.45 p.m., while waiting for lift in the lobby of Air India building, they heard the sound of a big explosion which was followed by a 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.
426.2. 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 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)
426.3 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)
426.4 He was the doctor at Hinduja Hospital and has deposed regarding PW-407 who was brought to the casualty centre of the said hospital on 13.03.1993. 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)
426.5 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)
426.6 At the relevant time, both were working with Hindustan Motors and Hero Honda Motors respectively. In the month of January, 1993, Gulam Rasool (A-58) of Ujjain (M.P.) had taken the delivery of an Ambassador car for Rs. 1,84,466/- from Hindustan Motors whose temporary Registration 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)
426.7 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 car for Shafi. This would further be established by the evidence of PW-366.
Deposition of Shakeel Suleman Hashan (PW-366)
426.8 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
426.9 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.
Deposition of Ashok Budhavale (PW-614)
426.10 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)
426.11 In the year 1993, he was attached as a PI with DCB, CID, Unit IX. In his deposition, he mentioned that he did not remember as to how many letters of sanctions were sent to him by the District Magistrate. The counsel for the appellant submitted that he did not grant any sanction and even if he did, the sanction was not granted on due application of mind by the District Magistrate. It is pointed out that the deposition of the witness was made on 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)
426.12 PW-349 acted as a panch witness in the search that was conducted at the house of A-16. It was submitted by the counsel for the appellant that the witness did not know English and the statement and panchnama were recorded in English and the driving licence was also in the English language. It is pointed out that the witness deposed that the document was explained to him in Hindi and he found the contents to be true. The contention of the counsel for the appellant stands negatived.
Deposition of Nagesh Lohar (PW-356)
426.13 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)
426.14 In the year 1993, he was attached with DCB, CID, Unit-I as a PI. The counsel for the appellant submitted that the same person was acting as a witness in investigation taking place at two places of incident, i.e., Air India Building and the Stock Exchange and, hence, was not a reliable witness. It is pointed out by the other side that there is no prohibition that a Police Inspector cannot investigate two matters at the same time.
Evidence of Witness regarding the incident at the Stock Exchange:
Deposition of Ashok Kamble (PW-24)
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)
427.1 PW-458 was the SEM who conducted the TIP with regard to the accused A-16 for PW-24. It was submitted by the counsel for the appellant that the SEM was neither aware of the guidelines nor 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 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 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.
TERRORISM:
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections, 3, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Terrorist activities Terrorism Meaning and origin Legislative history and international conventions on global terrorism Combating terrorism India’s contribution. Details of terror attack in India and other parts of the world, stated. (Para 433- 443)
Sections, 3, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Terrorism Approach of Supreme Court of India. Key terrorism cases referred. Certain rules suggested for being adopted.
HELD
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. v. State of Maharashtra & Ors., [JT 1994 (4) SC 255], 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. (Para 444)
In Mohd. Khalid v. State of West Bengal, [JT 2002 (6) SC 486], 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. (Para 447)
Nazir Khan & Ors. v. State of Delhi, [JT 2003 (Suppl-1) SC 200], pertains to prosecution of accused persons involved in kidnapping of foreign nationals and killing of police officers during combat. 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 observations about the nature of terrorist activities and attempted to define terrorism. (Para 448)
Terrorism is a plague for a nation or society that should be eradicated. There is a dire need to best deal with it and to make sure to take preventive actions so that other groups and people are not motivated to make themselves heard through various acts of terrorism. In our considered view, the following procedures/rules must have to be adopted while dealing with it:-
i) Better governance and law enforcement is the real need of the hour.
ii) We must formulate long term as well as short term strategies to combat terrorism.
iii) More advanced technologies must be used for communication among law enforcement agencies.
iv) Fighting terrorism would require a long term planning and sustained multi-dimensional action.
v) There should be proper coordination between all the agencies with high level of motivation and a quick response system must be established to tackle the menace immediately.
vi) Rule of Law must always be upheld and it is the duty of the constitutional authority to defend the life and limb of its subjects. (Para 451)
Sections, 3, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Acts of terrorism Bombay blast case – Role ofneighboring country. Described with reference to facts of the present case.
HELD
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. (Para 452)
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 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.
(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. (Para 456)
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 the unfortunate serial blasts in Bombay, India on 12th March 1993. (Para 457)
Sections, 3, 5, 6 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Terrorism Bombay blast case – Role ofpolice officials. Role of different officials, summarised.
Held
(1) A-116, who was Sub. Inspector Incharge of Shreevardhan Police Station and had jurisdiction over 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 Gaurav (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.
(5) The said bribe amount was distributed among all the Police Personnel on two occasions to Mhasala Police Station, Shreevardan 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. (Para 462)
Sections 3, 5, 6 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Terrorism Bombay blast case – Role of custom official Arms and ammunition smuggled in India. Role of different officers, summarised.
HELD
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 peoples lives. (Para 465)
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 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.
(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 Mhasala-Goregaon Road, A-112 informed them that he had specific information that Tiger Memon would bring the contraband goods from that route only. PW-172 had not told A-112 that landing would be 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, Shrivardhan to keep a vigil at Bankot, which is miles away from the place of landing.
(13) When landing of arms and explosives was in progress at Shekhadi on the night of 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 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. (Para 467)
Sections 3, 5, 6, TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Terrorism Bombay blast case – Role of cost guards in relation to blast case, stated and held that lack of vigilance on part of coast guards led to blasts.
Held
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. (Para 469)
This triple-layered security system is created primarily to guard the Indian Coastline from maritime terrorism, piracy and to keep out foreign intruders. (Para 470)
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. (Para 471)
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. (Para 472)
Criminal Procedure Code, 1973
Sections 360, 235(2), 354(3) Death sentence Evidence Evolvement of law, relating thereto. Development and changes in law relating to extreme penalty considered. Importance of Special reasons. Cases of Bachan Singh, Mithu, Jagmohan Shah, Bishnu Deo Shaw, Rajender Prashad, Dalbir Singh, referred and considered.
Held
It is manifest from the bare reading of judgments on death penalty from 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). (Para 476)
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. (Para 476.1)
Section 3(2) of the TADA Act, 1985 stipulated mandatory death sentence for a terrorist act, which results in death. The challenge to this provision was mounted on the ratio of Supreme Court decision in Mithu v. State of Punjab, (1983) 2 SCC 277 in which their Lordships struck down Section 303 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. (Para 477)
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. (Para 479)
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. (Para 479.1)
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. (Para 479.2)
A reference to Bishnu Deo Shaw v. State of West Bengal [(1979) 3 SCC 714] case would be helpful to understand what actually are these special reasons refers to. (Para 480)
Special Reasons necessary for imposing death sentence must relate, not to the crime as such but to the criminal. (Para 481)
Sub-section (2) of 235, 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. (Para 485)
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. (Para 486)
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. (Para 486)
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 Section 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. (Para 487)
With regard to question 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). (Para 489)
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 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. (Para 490)
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. (Para 491)
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. (Para 492)
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. (Para 493)
Sections 360, 235(2), 354(3) – Death sentence Imposition of Bombay blast case Death penalty on accused, Yakub Memon Accused brother of Tiger Memon, the mastermind behind blast Confession by accused showing his dominant position Other conspirators keeping in touchwith him at the instance of Tiger and his instructions passed on to others Responsible for handling explosives and keeping them safe – Involved in Hawala transactions Acquired tickets for transportation of othersto Dubai and Pakistan Participated in choosing blast sites Manner of execution of blasts, extremely atrocious and cruel Mitigating circumstances were that he was a CA No overt Act by him personally No criminal antecedents Served more than 19 years in jail Extreme penalty If justified. Held that being in commandingposition and the crime being of utmost gravity, death sentence is justified.
Held
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-1s appeal establish the dominating position of the appellant in comparison with other 10 appellants. (Para 496)
A-1s deeds cant 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. 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. (Para 499)
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. (Para 500)
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 wouldnt have entered into our country and as a consequence the execution itself wouldnt have materialized. (Para 501)
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. (Para 502)
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. (Para 505)
Accused was in the commanding position and was involved in crimes of the utmost gravity. Under the established jurisprudence, these two factors- a commanding position and a crime of utmost gravity ordinarily merit the extreme penalty even accounting for the guilty plea and mitigating factors. This is the special reason, which warrants death penalty to the accused. (Para 506)
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. (Para 507)
Sections 360, 235(2) , 354(3) Death sentence Imposition of Bombay blastcase – Involvement of otherco-accused viz, G (A9) AY (A10) AG (A11) PN (A12) ,P (A16) ,Q (A29), Z (A32), AK (A36), F (A39) and T (A44) Respective roles and aggravating circumstances Went for training to Pakistan Parked explosive laden vehicles on direction of their masterminds Highly stigmatisedactof terrorism Victimsvulnerable – Manner of execution showing extreme atrocity andcruelty Mitigatingcircumstances different for all 10 accused. Considered and held that their death sentence is commuted to life imprisonment. However ill-health and delay in execution of death sentence cannot be claimed asmitigating circumstances, as a matter of right. Triveniben’s case referred and relied upon. Commutation of sentence of these accused, not to be a precedentin other cases. Sanjay Kumarrelied upon.
We can classify mitigating circumstances into seven heads, namely, age, act of remorse, no prior criminal antecedents, co-operation with the investigation, family circumstances, ill health and delay in execution. The first five aspects have been accepted as mitigating circumstances by the established practices of this Court. As far as ill health is concerned, it is not a mitigating but a special circumstance which may aid in reduction of sentence. The vital distinction between the special circumstance and mitigating circumstance appears to lie in the fact that the reduction in penalty is given not owing to any merit earned on the part of the accused, but because of compelling reasons of humanity, illustrating a humane approach to sentencing in this context. (Para 512)
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. 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. (Para 513)
All the said 10 appellants belong to the lower strata of society, most of whom dont even have any regular job for their livelihood. In brief, their personal life was relatively moderate before this incident. Subsequently, these appellants have fallen prey to the ulterior motive of the conspirators for accomplishing their hidden motives, which was to spread terror among the people. Such evidence can in no way exonerate or excuse them for their participation in the commission of crime. (Para 514)
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. It is vital to remember that but for the masterminds, this blast should have never seen the daylight. (Para 516)
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 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. (Para 510)
A9s 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. 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. (Para 511.6)
A10s 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).
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. (Para 511.4)
A11s 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. (Para 511.7)
A12s 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.
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. (Para 511.9)
A-16s 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. (Para 511.10)
A29s 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 (Para 511.4)
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 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.
A36s 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.
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.
A39s 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. (Para 511.6)
A44s Mitigating Circumstances:
1. At the time of arrest, he was 37 years of age.
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. (Para 511. 2)
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. (Para 517)
Penal Code 1860
Section 53(4) Criminal Procedure Code, 1973, Section 432 – Imprisonment Life imprisonment Meaning Interpretation. Held that life imprisonment mentioned in Section 53(4) is rigorous imprisonment. It does not mean imprisonmentfor 14 years, 20 years or 30 years, but means for whole of ones natural life. This is however subject to orders to be passed by President of India or Governor of State and orders of commutation or remission under Section 432 Cr.P.C. Cases of Sanjay Kumar and Md. Munna relied upon with Sangeet and Anr. All accused inthis case to serve imprisonment till their death but subjectto Sections 432, 433 Cr.P.C.
HELD
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 v. UOI and Ors./Kartick Biswas v. State of West Bengal and Ors. [JT 2005 (7) SC 606]. (Para 520)
Therefore, imprisonment for life is to be treated as rigorous imprisonment for life. (Para 520.1)
Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather it always means the whole natural life. This Court has always clarified that the punishment of a fixed term of imprisonment so awarded would be subject to any order passed in exercise of clemency powers of the President of India or the Governor of the State, or remission and commutation guaranteed under Section 432 of the Code as the case may be. (Para 521)
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. (Para 523)
As rightly observed by this Court in Sangeet and Anr. v. State of Haryana, [JT 2012 (11) SC 388], there is misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 years imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code. (Para 524)
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. Blacks 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 todays world and India is one of the worst victims of terrorist acts. Terrorism has a long history of being used to achieve political, religious and ideological objectives. Acts of terrorism can range from threats to actual assassinations, kidnappings, airline hijackings, bomb scares, car bombs, building explosions, mailing of dangerous materials, computer-based attacks and the use of chemical, biological, and nuclear weaponsweapons 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 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, 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.
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.
Indias Contribution in Combating Terrorism
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, 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 Place of Attack No. of Bomb No. of Persons
Attack Blasts 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 Injured Persons
Embassy Officials car) 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:
S.No. Date of Place of Attack No. of Bomb No. of Persons
Attack Blasts killed
1. 11.09.2001 NY and Washington DC, 4 Nearly 3000
USA
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. v. State of Maharashtra & Ors., [JT 1994 (4) SC 255 : (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 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 v. State of Maharashtra, [JT 1996 (8) SC 473 : (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 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 v. Nalini & Ors,. [JT 1999 (4) SC 106 : (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:
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 v. State of West Bengal, [JT 2002 (6) SC 486], 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 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. v. State of Delhi, [JT 2003 Suppl.1 SC 200] 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 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)
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 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 v. State of Bihar, [JT 2004 (4) SC 294 : (2004) 4 SCC 622] this Court upheld the conviction and sentence awarded by the Designated Court in respect of accused persons who had killed several police officers in combat. While affirming that the offence committed was rightly charged under Section 3 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 Peoples Union for Civil Liberties and Anr. v. Union of India, [JT 2003 (10) SC 70 : (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 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 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.
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.
451.1 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.
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 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:-
(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 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 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.
(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 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.
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 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 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 Gaurav (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.
(5) The said bribe amount was distributed among all the Police Personnel on two occasions to Mhasala Police Station, Shreevardan 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.
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 countrys 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 peoples lives.
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 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.
(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 Mhasala-Goregaon Road, A-112 informed them that he had specific information that Tiger Memon would bring the contraband goods from that route only. PW-172 had not told A-112 that landing would be 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, Shreevardhan 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 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 nations economy and citizens security. Corruption among public servants indicates a failure of our system where pursuit of personal gratification subdues public interest.
Lack of vigilance in the Indian Maritime Zone and Indifference on the part of Coast Guards:
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.
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 Indias 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.
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 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).
476.1 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 v. State of Punjab, (1983) 2 SCC 277 in which their Lordships struck 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.
479. The very first case where the constitutional validity of capital punishment was vehemently discussed and decided was in Jagmohan Singh v. State of U.P [(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.
479.1 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. 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.
479.2 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 v. 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 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 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 v. 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 crimes social justice steps in to demand penalty dependent on the totality of circumstances.
482. Subsequent decision, Dalbir Singh and Ors. v. 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 obscure 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 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 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 Section 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 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:
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 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 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 Memons appeal discretely as against the other 10 appellants.
Criminal Appeal No. 1728 of 2007
Yakub Abdul Razak Memon (A-1)
495.1 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 accuseds 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-1s appeal establish the dominating position of the appellant in comparison with other 10 appellants.
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-1s 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 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-1s deeds cant 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 spirit behind the plan of the 1993 blasts, whereas the other appellants played a far lesser role and thus a lesser contribution to the crimes resulting from this plan. To be clearer on the dominant position, the blasts on 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.
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 wouldnt have entered into our country and as a consequence the execution itself wouldnt 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 Memons 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.
503. The following aggravating circumstances as against A-1 can be culled out:-
503.1 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.
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.
l He is a Chartered Accountant by profession and a respectable person in the society before the occurrence of this incident.
l 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, the act of A-1 returning to India unlike other absconders is in itself a mitigating circumstance in his favour.
l No criminal antecedent.
l He suffers from depression since 1996.
l 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 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-1s 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 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 cant 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 accuseds 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 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.
510.1 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
511.1 Learned counsel for the appellants submitted that all the three appellants (A-32, A-36 and A-39) have been in custody since their arrest except A-39, who was granted interim bail on medical grounds to look after his mother who was seriously ill. As on date, the appellants have served more than 19 years each in jail. According to 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 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 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 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.
A36s 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.
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.
A39s 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
Criminal Appeal Nos. 628-629 of 2008
511.2 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:-
A44s Mitigating Circumstances:
1. At the time of arrest, he was 37 years of age.
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
511.3 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.
511.4 She further pointed out that Asgar Yousuf Mukadam (A-10) has completed his Graduation while in custody which shows that he should be given a chance of reformation which he would lose in case he is incarcerated in prison. It was further submitted that the accused persons are not hardened habitual criminals and they deserve to get a chance for reformation and rehabilitation. It was also pointed out that even during the entire period of judicial custody there is neither any report of misuse of the permissions/facilities granted to them nor there is any adverse report from the jail authorities. In a nutshell, their mitigating circumstances can be summarized as under:-
A10s 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).
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.
A29s 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
511.5 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 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.
511.6 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.
A9s 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. 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
511.7 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.
A11s 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
511.8 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 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.
511.9 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.
A12s 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.
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
511.10 Ms. Farhana Shah, learned counsel for the appellant (A-16) submitted that the appellant is in custody for more than 19 years and he deserves to be released for the period already undergone. She also pointed out that there is neither any complaint against him nor misuse of any facility granted by the Designated Court. She further pointed out that the appellant is suffering from mental disorder and he was under treatment of J.J. Hospital and Thane Mental Hospital during the entire period of trial. He is still under treatment and, as advised by the doctors, is surviving on medicines. His mental condition is not stable. In support of the above claim, learned counsel has submitted his medical reports for perusal of this Court.
A-16s 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 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 v. State of Gujarat [JT 1989 (1) SC 314] that sentence cant be commuted merely on the ground of delay alone. It was further observed that no absolute or unqualified rule can be laid down that in every case in which there is a long delay in the execution of death sentence, the sentence must be substituted by the sentence of life imprisonment. Thus no accused can claim as a matter of right to commute his/her death sentence on the ground of delay in the judicial process. However, noting the lengthy incarceration suffered by the accused over a period of two decades, as an exceptional scenario, we are inclined to consider the long delay as a mitigating circumstance but less significance will be attached to them in comparison with other six circumstances.
514. Furthermore, as we have already narrated, all the above said 10 appellants belong to the lower strata of society, most of whom dont even have any regular job for their livelihood. In brief, their personal life was relatively moderate before this incident. Subsequently, these appellants have fallen prey to the ulterior motive of the conspirators for accomplishing their hidden motives, which was to spread terror among the people. Such evidence can in no way exonerate or excuse them for their participation in the commission of crime. However, it provides a somewhat nuanced picture and may imply that their participation in the massacres resulted from misguided notions rather than extremism.
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.
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. v. Sanjay Kumar [JT 2012 (8) SC 175 : (2012) 8 SCC 537], to understand the sentencing policy having regard to the nature of the offence and the manner in which it was executed or committed etc. The following paragraphs are relevant:-
21. Sentencing policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to [pic] 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 compartmentsone being the aggravating circumstances and, the other being the mitigating circumstance. To balance the two is the primary duty of the court. The principle of proportionality between the crime and the punishment is the principle of just deserts that serves as the foundation of every criminal sentence that is justifiable. In other words, the doctrine of proportionality has valuable application to the sentencing policy under the Indian criminal jurisprudence. While determining the quantum of punishment the court always records sufficient reasons. (Vide Sevaka Perumal v. State of T.N. [JT 1991 (2) SC 546 : AIR 1991 SC 1463] [pic] Ravji v. State of Rajasthan [JT 1995 (8) SC 520], State of M.P. v. Ghanshyam Singh [JT 2003 (Suppl.1) SC 129 : AIR 2003 SC 3191], Dhananjoy Chatterjee v. State of W.B. [JT 2004 (4) SC 242], Rajendra Pralhadrao Wasnik v. State of Maharashtra [JT 2012 (2) SC 560] and Brajendrasingh v. State of M.P. [JT 2012 (2) SC 613]
24..The aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the rarest of rare cases, warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. The life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds, for example, non-application of mind while passing the order; non-consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under the Jail Manual, etc. or even under Section 433-A CrPC.
Life Imprisonment Means Rigorous Imprisonment:
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 v. UOI and Ors./Kartick Biswas v. State of West Bengal and Ors. [JT 2005 (7) SC 606 : (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.
520.1 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 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 v. Sanjay Kumar, [JT 2012 (8) SC 175 : (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 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. v. State of Haryana, [JT 2012 (11) SC 388], there is misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 years imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code, which in turn is subject to the procedural checks mentioned in the said provision and to further substantive check in Section 433-A of the Code.
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.
State of Maharashtra through CBI v. Yakub Abdul Razak Memon & Ors.
Death Ref. Case (Crl.) No. 1 of 2011
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.
ANNEXURE A
Sno. Criminal Accused Name And Sentence By Award By
Appeal Number. Designated Supreme Court
Court
1 1728/2007 Yakub AbdulRazak Memon
(A-1) Death Sentence Confirmed
2 609-610/2008 Zakir Hussain Noor Mohd.
Shaikh (A-32) Death Sentence
Abdul Khan @ Yakub Khan
Akhtar Khan (A-36)
Firoz @ Akram Amani Malik
Commuted to
Life
Imprisonment
3 628-629/2008 Mohammed Mushtaq
Moosa Tarani (A-44) Death Sentence

4 637-638/2008 Asgar Yusuf Mukadam
(A-10) and Death Sentence
Shahnawaz Abdul Kadar
Qureshi (A-29)
5 365/2008 Mohammed Shoeb
Mohammed Death Sentence
Kasam Ghansar (A-9)
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

Mohammed Farooq Mohammed Yusuf Pawale (A-16) Vs. The State of Maharashtra thr. CBI-STF, Bombay

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Mohammed Farooq Mohammed Yusuf Pawale (A-16) Vs. The State of Maharashtra thr. CBI-STF, Bombay

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