Mohammed Mushtaq Moosa Tarani (A-44) Vs. State of Maharashtra, Through STF, CBI Bombay
EmailAppeal: Criminal Appeal Nos. 628-629 of 2008
Petitioner: Mohammed Mushtaq Moosa Tarani (A-44)
Respondent: State of Maharashtra, Through STF, CBI Bombay
Apeal: Criminal Appeal Nos. 628-629 of 2008
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3, 4, 5, 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, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Bombay blast case Conspiracy Evidence – Confessions of accused T Accused, old associate of Tiger Memon, whose character he knew Attended conspiratorial meetings with him and other co-conspirators, where accused agreed to help Did reconnaissance and planted suitcases laden with RDX etc. at targeted places. Held that his own confession establishes charges against him.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3, 4, 5, 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, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Bombay blast case Conspiracy Evidence – Confessions of accused T Accused, old associate of Tiger Memon, whose character he knew Attended conspiratorial meetings with him and other co-conspirators, where accused agreed to help Did reconnaissance and planted suitcases laden with RDX etc. at targeted places. Held that his own confession establishes charges against him.
Sections 3, 4, 5, 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, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Bombay blast case Conspiracy Evidence Confession of accused T Later, retracted Reliance on Confession sought to be retracted on 7.6.1994 after being recorded on 26.5.1993 & 28.5.1993 – No reason given for retraction or of his signatures being forcibly obtained on blank papers – No complaints to superior officers or court Statement corroborated by confessions of other accused, viz, G, AY, PN ‘YM Further corroboration from various witnesses Accused identified in TIP Recoveries at his instance of clothes etc. Seen by PWs parking scooter in Zaveri Bazar, which did not explode Scooter recovered in presence of panchas and examined by police On his call, Bomb Detection and Disposal squad came and defused bomb Even the keys recovered at instance of accused, pertained to same scooter. Held that his confession was rightly relied upon and retraction was rightly discarded. (Paras 261 to 299)
Sections 3, 4, 5, 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, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Bombay blast case Evidence – TIP Reliability TIP conducted by SEM on 4.6.1993 in presence of two PWs, who identified accused T as one who parked RDX laden scooter in Zaveri Bazar Further TIP on 7.6.1993, by other SEM Accused T identified by yet other two PWs as person who visited Hotel Centaur, Juhu and planted suitcase in Hotel Room Memorandum of panchnamas prepared. Held that charges have been brought home. (Paras 300, 305)
Sections 3, 4, 5, 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, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Bombay blast case Evidence Discrepancies Evidence that an officer of Bomb disposal squad forcibly opened dicky of scooter, hence no question of opening same with keys recovered by police Accused T making a disclosure and leading police to building opposite the shop in front of which he parked scooter Opened lock of room got recovered two keys of Bajaj scooter Keys given to I.O., who called supervisor of Automobile company Said supervisors inserted keys in all the three locks of scooter which tallied. Held that it was proved that recovered keys belonged to scooter, which accused parked at Zaveri Bazar. (Para 301, 302)
Sections 3, 4, 5, 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, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Bombay blast case Evidence Effect Room booking in Hotel Hand-writing not confirmed Sufficient evidence that accused planted RDX laden suitcase in hotel room Evidence also showing booking of room with fake name and advance payment. Held that contention cannot be accepted. (Para 303)
Sections 3, 4, 5, 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, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Bombay blast case Evidence Corroboration Prosecution heavily relying upon statement of approver Said approver not naming this accused T Effect. Held that this has no bearing on the prosecution’s case. (Para 304)
Held:
A common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. The cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. (Para 287)
The prosecution pointed out the involvement of the appellant (A-44) in the conspiratorial acts which is evident from his own confession recorded under Section 15 of TADA on 26.05.1993 and 28.05.1993 (Para 288)
On perusal of the confessional statement of the appellant (A-44), the following facts emerge:
(i) The appellant was an old associate of Tiger Memon;
(ii) The appellant was fully aware of Tiger Memons character and that he was a goonda;
(iii) The appellant had participated in the conspiratorial meeting with Tiger and his co-conspirators;
(iv) In the said meeting, the appellant agreed to help the Tiger Memon in the object of the conspiracy; and
(v) Pursuant to the said agreement, the appellant performed several acts, namely, reconnaissance of targets, planting of suitcase laden with RDX and scooter bomb at the targets. (Para 289)
The confession of the appellant (A-44) establishes the charges framed against him in the trial. The fact that the appellant (A-44) knowingly committed the overt act of planting the bomb at Hotel Centaur, Juhu, is evident from his own confession. He himself informed Anwar that he had planted the bag containing bomb at Hotel Centaur, Juhu. The appellant (A-44) was fully conscious of the gravity and diabolic nature of his act which is apparent from his confession wherein he stated that after committing the overt acts he himself informed everything to A-16 who consoled him by saying that Allah would help him as he has done all this for his community. (Para 290)
JUDGEMENT:
282. Mr. Priyadarshi Manish learned counsel appeared for the appellant (A-44) and Mr. Gopal Subramanium, learned senior counsel, duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel for the respondent
283. The instant appeals are directed against the final judgment and order of conviction and sentence dated 27.09.2006 and 18.07.2007 respectively, whereby the appellant has been convicted and sentenced to Death by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1/1993.
Charges:
284. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-44). The relevant portion of the said charge is reproduced hereunder:-
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UA.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate Sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist 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.
284.1 In addition to the above-said principal charge of conspiracy framed at head firstly, the appellant (A-44) was also charged on other counts which are as under:
At head secondly; The appellant (A-44) committed an offence punishable under Section 3(3) of TADA by committing following overt acts:
a) He attended a meeting with co-conspirators at Hotel Taj Mahal; and
b) He surveyed Stock Exchange Building and Bombay Municipal Corporation Building, along with co-accused for the purpose of committing terrorist acts by planting bombs.
At head thirdly; On 12.03.1993, the appellant (A-44) planted a suitcase filled with RDX in Room No.3078 of Hotel Centaur, Juhu Tara Road, Mumbai, which exploded, causing injuries to three persons and loss of property to the tune of Rs.2.1 crore, thereby committing an offence punishable under Section 3(2)(ii) of TADA
At head fourthly; The appellant (A-44), by causing the aforesaid explosion in Hotel Centaur, Juhu Tara Road, Mumbai, which resulted into injuries to three persons, committed an offence punishable under Section 307 of IPC
At head fifthly; The appellant (A-44), by causing the aforesaid explosion, which resulted into injuries to three persons, committed an offence punishable under Section 324 of IPC.
At head sixthly; The appellant (A-44), by causing the aforesaid explosion, which resulted in damage of property, by using explosive material, committed an offence punishable under Section 436 of IPC.
At head seventhly; On 12.03.1993, the appellant (A-44) planted an explosive laden scooter bearing No. MH-05-TC-16 at Shaikh Memon Street with an intent to cause death and destruction of properties by explosion and thereby committed an offence punishable under Section 3(3) of TADA.
At head eighthly; The appellant (A-44), by planting the aforesaid explosive laden scooter also committed an offence punishable under Section 307 of IPC
At head ninthly; The appellant (A-44), by planting the aforesaid explosive laden scooter with the knowledge that it was likely to cause damage to the properties, committed an offence punishable under Section 435 read with Section 511 of IPC.
At head tenthly; The appellant (A-44), by planting the aforesaid explosive laden scooter committed an offence punishable under Section 436 of IPC.
At head eleventhly; The appellant (A-44), by planting the aforesaid explosive laden suitcase in Hotel Centaur, Juhu Tara Road, which caused damage to the properties, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908 and;
At head twelfthly; The appellant (A-44), by planting the aforesaid explosive laden suitcase and by possessing the RDX in the said suitcase unauthorisedly committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908.
285. The Designated Judge found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the above said charges as follows:
Conviction and Sentence:
(i) The appellant (A-44) has been sentenced to death under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with the offences mentioned in the said charge. In addition, the appellant was also ordered to pay a fine of Rs. 25, 000/-. (charge firstly)
(ii) He has been sentenced to RI for 12 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for one year for the commission of offence under Section 3(3) of TADA. (charge secondly)
(iii) He has been sentenced to RI for life along with a fine of Rs. 25,000/- , in default, to further undergo RI for 6 months for the commission of offence under Section 3(2)(ii) of TADA. (charge thirdly)
(iv) He has been sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months for the commission of offence under Section 307 of IPC. (charge fourthly)
(v) He has been sentenced to RI for 3 years for the commission of offence under Section 324 of IPC. (charge fifthly)
(vi) He has been sentenced to RI for 10 years along with a fine of Rs.1,00,000/-, in default, to further undergo RI for 3 years for the commission of offence under Section 436 of IPC. (charge sixthly)
(vii) He has been sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year for the commission of offence under Section 3(3) of TADA. (charge seventhly)
(viii) He has been sentenced to RI for 10 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year for the commission of offence under Section 307 of IPC. (charge eighthly)
(ix) He has been sentenced to RI for 31/2 (three and a half) years along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months for the commission of offence under Sections 435 read with 511 of IPC. (charge ninthly)
(x) He has been sentenced to RI for 5 years along with a fine of Rs. 12,500/-, in default, to further undergo RI for 3 months for the commission of offence under Section 436 read with Section 511 of IPC. (charge tenthly)
(xi) He has been sentenced to RI for 7 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months for commission of offence under Section 3 of the Explosive Substances Act, 1908. (charge eleventhly)
(xii) He has been sentenced to RI for 7 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months, for the commission of offence under Section 4(b) of the Explosive Substances Act, 1908. (charge twelfthly)
Evidence
286. The evidence against the appellant (A-44) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimonies of prosecution witnesses including eye witnesses; and
(iv) documentary evidence.
Conspiracy:
287. As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. The cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer the same once again.
Confessional Statement of the appellant – Mohammed Mushtaq Moosa Tarani (A- 44)
288. The prosecution pointed out the involvement of the appellant (A-44) in the conspiratorial acts which is evident from his own confession recorded under Section 15 of TADA on 26.05.1993 and 28.05.1993 at 18.30 hrs by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confessional statement is summarized hereinbelow:
(i) Since 1991, the appellant (A-44) had developed good friendship with Tiger Memon and he knew that Tiger Memon was a notorious goonda.
(ii) On 05.03.1993, the appellant (A-44), along with his friend Md. Farooq Mohammed Yusuf Pawale (A-16), met Tiger Memon and other co-conspirators at Taj Mahal Hotel where Tiger Memon told them that they have to take revenge for the damage suffered by Muslims during the riots and called for their help.
(iii) Thereafter, the appellant and others, viz., A-16, PW-2, Bashir Ahmed Usman Gani Khairulla (A-13), Javed Chikna agreed to help Tiger Memon. The appellant, along with Tiger Memon and others, went to survey the BMC building and the Stock Exchange building.
(iv) On 06.03.1993, the appellant along with PW-2 and A-13 went to survey the BMC building, BJP and Shiv Sena office and also showed them the entry and exit gates of the said buildings.
(v) On the same day, after surveying the targets, the appellant met A-16 and told him about what transpired during the day and about the plans of Tiger Memon, on which, A-16 told the appellant not to worry and do whatever has been directed by Tiger Memon.
(vi) On 11.03.1993, the appellant reached Al-Hussaini building and on the instructions of Tiger Memon understood his job from Anwar. Thereafter, Anwar instructed the appellant to carry a suitcase filled with RDX to Hotel Centaur, Juhu on 12.03.1993 and plant the same in the reserved room.
(vii) On 12.03.1993, the appellant went to Anwars house and thereafter both of them boarded a Maroon coloured car driven by Asgar Yusuf Mukadam (A-10). Anwar took out pencil detonators from his pocket and inserted them in the three suitcases filled with RDX. Thereafter, the appellant was dropped by Anwar on the way and he (A-44) took a taxi and reached Hotel Centaur.
(viii) On reaching the hotel, the appellant kept the bag filled with explosives in Room No. 3078 and came back to the Al-Hussaini building where he informed Anwar that he had planted the bag containing bomb at Hotel Centaur, Juhu in Room No. 3078.
(ix) On Anwars instructions, the appellant drove a scooter filled with RDX and parked the same at Zaveri Bazaar.
(x) The appellant, thereafter, met A-16 and informed everything to him on which A-16 told him that he should not worry and nothing would happen as the appellant has done the job for their community and Allah would help him.
289. On perusal of the aforesaid confessional statement of the appellant (A-44), the following facts emerge:
(i) The appellant was an old associate of Tiger Memon;
(ii) The appellant was fully aware of Tiger Memons character and that he was a goonda;
(iii) The appellant had participated in the conspiratorial meeting with Tiger and his co-conspirators;
(iv) In the said meeting, the appellant agreed to help the Tiger Memon in the object of the conspiracy; and
(v) Pursuant to the said agreement, the appellant performed several acts, namely, reconnaissance of targets, planting of suitcase laden with RDX and scooter bomb at the targets.
290. The confession of the appellant (A-44) establishes the charges framed against him in the trial. The fact that the appellant (A-44) knowingly committed the overt act of planting the bomb at Hotel Centaur, Juhu, is evident from his own confession. He himself informed Anwar that he had planted the bag containing bomb at Hotel Centaur, Juhu. The appellant (A-44) was fully conscious of the gravity and diabolic nature of his act which is apparent from his confession wherein he stated that after committing the overt acts he himself informed everything to A-16 who consoled him by saying that Allah would help him as he has done all this for his community.
Retraction Statement:
291. Mr. Manish, learned counsel for the appellant (A-44) contended that the above-mentioned confession of the appellant dated 26.05.1993 and 28.05.1993 should not be relied upon since it was sought to be retracted by the appellant on 07.06.1994. In reply, learned senior counsel for the CBI submitted that a voluntary and free confession, even if retracted subsequently, can be relied upon. It is also relevant to point out that the retraction allegedly made by the appellant also fails to pin-point the reason behind failure to make complaint to the authorities or police officers or any other authority including the court regarding his signatures being obtained on blank papers and/or the papers containing some typed material and the reason to effect the said signatures. In this case, the Designated Court rightly relied upon the original confession and discarded the subsequent retraction. Since we have elaborately discussed the admissibility or otherwise of the retraction statements in the earlier part of our judgment, there is no need to refer the same once again.
Confessional Statements of co-accused:
292. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-44) are summarized hereinbelow:
Confessional Statement of Md. Shoaib Mohammed Kasam Ghansar (A-9)
292.1 Confessional statement of A-9 under Section 15 of TADA has been recorded on 19.04.1993 and 22.04.1993 by Shri P.K. Jain, the then DCP, Zone X, Bombay. A brief summary of the statement with reference to the appellant is as follows:-
(i) When A-9 along with Parvez Nazir Ahmed Shaikh (A-12) and Asgar Yusuf Mukadam (A-10) reached the house of Anwar, a boy of fair color with curly hair, wearing coat and pant, also came along with him.
(ii) After Anwar inserted the pencil detonators in the bags, the boy with curly hair was dropped and was asked to go to Hotel Centaur, Juhu and to plant the bag at the designated place and come back.
(iii) At the Al-Hussaini building, first, the boy with curly hair came back and then Anwar came back followed by Parvez (A-12).
(iv) In the afternoon of 12.03.1993, on the instructions of Anwar, A-44 drove the scooter filled with black chemical and parked the same at Zaveri Bazaar.
Confessional Statement of Asgar Yusuf Mukadam (A-10)
292.2 Confessional statement of A-10 under Section 15 of TADA has been recorded on 20.04.1993 and 23.04.1993 at 18:00 hrs by Shri K.L. Bishnoi (PW- 193), the then DCP, Zone III, Bombay. A brief summary of the confessional statement of A-10 with reference to the appellant (A-44) is as follows:
(i) When A-10 reached the house of Anwar, he came down along with a boy and all of them sat in a car. In the car, Anwar took out pencil detonators from his pocket and inserted the same in the bags. Thereafter, Anwar instructed the boy (whom he referred to as Mushtaq) to get down with the bag and plant the same at the designated place.
(ii) When A-10 reached Al-Hussaini after dropping Anwar and others, the appellant (A-44) also reached there. Thereafter, as instructed by Anwar, A-44 drove a scooter filled with RDX and parked the same at Zaveri Bazaar.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
292.3 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 and 20.04.1994 at 06:50 hrs. by Shri P.K. Jain (PW-189), the then DCP, Zone X, Bombay. A brief summary of the statement with reference to the appellant (A-44) is as follows:
i) When A-12 along with A-10 and A-9 reached the house of Anwar, they met a person with curly hair whose name was Mushtaq. Mustaq and Anwar sat in a car, and thereafter, Anwar opened the bags and inserted pencil detonators which he was carrying.
(ii) When A-12 reached the Al-Hussaini building after planting the suitcase at Hotel Sea Rock, the appellant (A-44) had also reached there.
Confessional Statement of Imtiyaz Yunus Miyan Ghavate (A-15)
292.4 Confessional statement of A-15 under Section 15 of TADA has been recorded on 07.05.1993 and 09.05.1993 by Shri K.L. Bishnoi, (PW-193), the then DCP, Zone III, Bombay. A brief summary of the said statement with reference to the appellant is as follows:
(i) When A-15 reached the residence of Anwar, the appellant had also come there. He had curly hair and fair complexion and was wearing a black coloured coat.
(ii) A-10 came there in a maroon coloured Maruti Van and the appellant along with Anwar and others sat in the van and left the place.
(iii) When the appellant came to the Al-Hussaini Building, he was holding his coat in his hand. Thereafter, Anwar instructed him to plant the scooter filled with RDX.
293. A perusal of the confessional statements of all the above accused, viz., A-9, A-10 A-12 and A-15 clearly establish the fact that it corroborates the confessional statement of the appellant (A-44). The above- said confessions of the co-accused further establish the following facts:-
(i) The appellant (A-44) was seen in the company of the Anwar (AA);
(ii) The appellant went along with Anwar (AA) and Asgar Yusuf Mukadam (A-10) in a Maruti Van.
(iii) The appellant witnessed the insertion of pencil detonators in the suitcases filled with RDX;
(iv) The appellant planted the suitcase filled with RDX in Hotel Centaur Juhu;
(v) The appellant returned to the Al-Hussaini building and reported the successful planting of the suitcase bomb to Anwar; and
(vi) On the instructions of Anwar (AA), the appellant proceeded to park the scooter filled with RDX at Zaveri Bazaar.
Deposition of Prosecution Witnesses:
Deposition of Ravindra Sitaram Vichare (PW-17)
294. The deposition of PW-17 was recorded on 20.11.1995. The relevant material in his evidence is as follows:-
(i) He deposed that at the relevant time, he was working as a bellboy at Hotel Centaur, Juhu.
(ii) On 12.03.1993, around 11:45 am, one guest got down from the motor taxi and was carrying a light blue coloured briefcase type bag.
(iii) He took the bag from the hands of the guest and kept it in the Baggage Section.
(iv) After sometime, the guest came to the Baggage Section and picked up his bag and enquired about the lift for going to the room.
(v) He showed the way towards the lift to the guest.
(vi) At around 3:00/3:30 p.m., when he was in the lobby of the Hotel, there was a loud sound of explosion.
(vii) He identified the appellant (A-44) before the court in the dock as the person who came to the Hotel on 12.03.1993.
(viii) He also identified the appellant in the identification parade dated 07.06.1993 conducted by
Special Executive Magistrate, Vaman D. Sapre (PW-249) at Santacruz Police Station.
Deposition of Milind Purushottam Kamble (PW-18)
294.1 The deposition of PW-18 was recorded on 22.11.1995 and he deposed that:
(i) At the relevant time, he was working as an attendant in the House Keeping Department of Hotel Centaur, Juhu.
(ii) On 12.03.1993, the appellant (A-44) enquired from him about the location of Room No. 3078 in the Hotel.
(iii) Floor Supervisor, who was also present with PW-18, pointed out towards Room No. 3078.
(iv) He saw the appellant (A-44) entering into Room No. 3078 with a light blue color suitcase.
(v) Thereafter, the appellant (A-44) came out of the room and left saying that he is going to the restaurant to meet someone and will return shortly. At that time, he was not carrying the blue suitcase.
(vi) He identified the appellant (A-44) before the Court in the dock as the person who kept the suitcase in Room No. 3078.
(vii) He also identified the appellant (A-44) in the identification parade held on 07.06.1993 conducted by the Special Executive Magistrate, Vaman D. Sapre (PW-249).
(viii) He also identified Article No. 9 (coat), Article No. 10 (black pant) and Article No. 11 (white shirt) being clothes worn by the appellant (A-44) on 12.03.1993 when he visited the Hotel.
295. From the perusal of the testimony of PWs-17 and 18, it is clear that the witnesses established the identity of the person, who planted the suitcase in the hotel, as the appellant. They very well proved how the appellant went to the room where the blast took place. The presence of witnesses in the hotel at the time when the appellant went to the hotel for planting the suitcase has been fully established. The witnesses have withstood the lengthy cross-examination and established themselves as credible and reliable witnesses.
Deposition of Nitin Sumitran (PW-260)
295. 1 The deposition of PW-260 was recorded on 13.01.1998. He deposed that:
(i) At the relevant time, he was working as a receptionist at Hotel Centaur, Juhu.
(ii) On 08.03.1993, a male person, aged about 30 to 35 years, approached the Front Desk and told that he was having a reservation in the name of one Mr. Sanjeev Rai and that he had come to make an advance payment of Rs.5,000/- towards reservation of the room.
Deposition of Sanjay Manohar Dalvi (PW-261)
295. 2 The deposition of PW-261 was recorded on 13.01.1998. He deposed that at the relevant time, he was working as the Front Office Cashier and he confirmed that a room was booked at Hotel Centaur, Juhu by one Mr. Sanjeev Rai on 08.03.1993 and he issued a receipt of Rs.5,000/- (Exh. 1093) as advance payment towards the room rent.
Deposition of Cedric Merwyn Creado (PW-262)
295. 3 The deposition of PW-262 was recorded on 13.01.1998. He deposed that:
(i) At the relevant time, he was working as a Front Office Receptionist and on 11.03.1993, a male person came to the desk and enquired for a room.
(ii) He asked him as to whether he has any prior reservation, on which, he replied that he was having a reservation in the name of Sanjeev Rai.
(iii) He gave him a registration card which he returned after filling the same.
(iv) On verification of the card, he found that the name was mentioned as Gyanchandani Lalit and the address was 501, Bel Air Apartment, Linking Road, Bandra, Bombay. As the booking was made in the name of Sanjeev Rai, he asked him as to why he has written a different name on which he replied that since people know him by this name that is why he had mentioned the said name.
(v) He deleted the name and re-wrote the name as Sanjeev Rai on the Registration Card. A corrected reservation slip (Exh. 1096) was also prepared by the Hotel staff.
(vi) Thereafter, PW-262 allotted Room No. 3078 to him and gave him the keys of the room.
Deposition of Titus Peter Paul Pinto (PW-102)
295. 4 The deposition of PW-102 was recorded on 27.09.1996. PW-102 is a resident of Bel Air Apartment since 1963 and he is the Secretary of the said Cooperative Housing Society. He deposed that there is no flat bearing No. 501 in the said Apartment. He further deposed that no occupant by the name of Sanjeev Rai or Gyanchandani Lalit was living at the relevant time in that building.
Deposition of Ravindra Mahadev Kolte (PW-322)
295. 5 The deposition of PW-322 was recorded on 27.04.1998. He deposed that:
(i) At the relevant time, he was working as an Assistant Security Officer at Hotel Centaur, Juhu. He also described about the scene of the blast.
(ii) Three persons were injured in the blast on 12.03.1993 at 15:30 hrs. in Room No. 3078.
(iii) The ceiling and flooring of the said room were completely destroyed and the occupant of the said room was not present in the room at the time of blast.
(iv) He also made a complaint which was registered as C.R. No. 155/1993.
Deposition of Jaisingh Shivajirao Patil, Police Officer, (PW-544)
295. 6 The deposition of PW-544 was recorded on 10.12.1999. In his deposition, he deposed that:-
(i) He inspected the scene of the blast in the presence of panch witness Tiyadath R. Nair (PW-438) and prepared a spot panchnama Exh. No. 1414.
(ii) He also prepared a panchnama dated 15.03.1993 of four sealed sample packets containing debris collected by the experts from FSL marked as Exh. No. 1859 in the presence of Sadashiv M. Pattanshetti (PW-549).
(iii) He also proved that he recorded FIR being C.R. No. 155/1993 marked as Exh. No. 1208.
(iv) The aforesaid articles which were seized by him were sent to the forensic lab for examination.
(v) FSL Reports (Exh. Nos. 2604 and 2605) show the presence of traces of High Explosive substance, viz., RDX on these articles.
Deposition of Sridhar M. Pandit (PW-355)
295. 7 At the relevant time, he was working as GM (Technical), Hotel Corporation of India. He deposed that he inspected the site of the explosion and the estimated damage at Hotel Centaur, Juhu came to the tune of Rs. 2.1 crores.
Deposition of Ketan Kantilal Shah (PW-433)
295. 8 He was the guest staying at the Hotel at the relevant time and has proved the injuries sustained by him on account of the explosion in the Hotel on 12.03.1993.
Deposition of Vaman Dhondu Sapre, Special Executive Magistrate (PW-249)
295. 9 He is the person who conducted TIP on 07.06.1993 at Santacruz Police Station in which the appellant (A-44) was identified by PWs-17 and 18 and has proved the TIP panchnama Exh. No. 1071 dated 07.06.1993.
Deposition of Ramesh Pandurang Bhasare (PW-74)
295. 10 He is a panch witness who was running a cigarette-bidi stall at Zaveri Bazaar at the relevant time and he deposed as under:
(i) The appellant (A-44) made a statement in the office of Crime Branch on 19.05.1993.
(ii) Thereafter, the appellant (A-44) led the police party and panchas to a Footwear Shop at Khambekar Street and took out the keys from a pit like portion on the roof.
(iii) The police party was further taken to Room No. 12 of a building opposite to Building No. 160 which was locked.
(iv) The appellant opened the lock with the keys which he had taken out from the pit.
(v) Thereafter, from a cupboard, the appellant (A-44) took out a black coat, black pant, white shirt and two keys marked as Article 258-B(i).
(vi) The police party recovered the aforesaid articles vide discovery panchnama marked as Exhibit 389.
295. 11 The eye witness at the hotel has also identified the above cloth as the same which was worn by the appellant (A-44) at the time of planting of suitcase bomb.
Evidence in respect of the unexploded scooter parked in front of DP Jewellers at Zaveri Bazaar:
Deposition of Shashikant Ramkumar Shukla (PW-26).
296. PW-26 is an eye witness to the incident who witnessed the parking of the said scooter by the appellant (A-44) in front of the shop of D.P. Jewellers, Zaveri Bazaar. He deposed that:
(i) At the relevant time, he was the owner of a cutlery shop at Vithalwadi Naka, Zaveri Bazaar.
(ii) On 12.03.1993, he saw the appellant (A-44) quarreling with a car driver in front of D.P. Jewellers, Zaveri Bazaar for parking space. He forcibly parked the grey coloured scooter with Registration No. MH- 05-TC 16 and left the place on the pretext of offering namaz at Juma Masjid.
(iii) On 16.03.1993, he learnt that the scooter parked in front of the shop of D.P. Jewellers, Zaveri Bazaar contained explosives.
(iv) Thereafter, he went to Lokmanya Tilak Marg Police Station to see the scooter which was taken into custody by the police. There, he met PI Subhash Jadhav who recorded his statement and showed him two scooters. He identified the scooter which was parked in front of the shop of D.P. Jewellers at Zaveri Bazaar.
(v) He also identified the appellant (A-44) before the court in the dock as the person who had parked the scooter
(vi) He also identified the appellant (A-44) in the Identification Parade dated 04.06.1993 conducted by Sharad Vichare, Special Executive Magistrate, (PW-459).
Deposition of Shantaram Sakharam Sigwan (PW-27) (eye-witness).
296. 1 PW-27 is a salesman working at Shop No. 263, Shaikh Memon Street, Zaveri Bazaar. He deposed that:
(i) He saw the appellant (A-44) arguing with a car driver to park his scooter in front of D.P. Jewellers. After forcibly parking his grey scooter No. MH-05-TC-16, the appellant left on the pretext of offering namaz at Juma Masjid.
(ii) On 12.03.1993, an explosion took place in front of the shop of Narayandas Jewellers and there was panic in the locality and all the shop keepers closed their shops and everyone left for their home.
(iii) On 16.03.1993, he learnt from a feriwala that the police have seized a scooter which was parked in front of the shop of D.P. Jewellers.
(iv) He, thereafter, went to the police station and noticed that a grey scooter bearing Registration No. MH-05-TC-16 was parked in the compound of the police station.
(v) He identified the scooter and PI Jadhav recorded his statement.
(vi) He also identified the appellant (A-44) before the court in the dock as the person who had parked the scooter.
(vii) PW-27 also identified the appellant (A-44) in the TIP conducted on 04.06.1993 by Sharad S. Vichare, Special Executive Magistrate, (PW-459) and Memorandum Panchnama Exh. No. 1461 was prepared for the same.
297. The eye witnesses discussed above clearly established the following facts:
(i) the appellant (A-44) came on a scooter at the relevant time.
(ii) the appellant (A-44) had a sort of quarrel with a car driver with regard to parking.
(iii) the appellant (A-44) tried to forcibly park the said scooter, which drew the attention of the witnesses.
(iv) the appellant (A-44) left the place on the pretext of offering namaz.
(v) the identity of the appellant (A-44) is fully established and he has been identified by both the witnesses in TIP.
Deposition of Subhash Dattaram Jadhav (PW-547)
297. 1 At the relevant time, PW-547 was working as PI with LT Marg Police Station. He deposed that:
(i) He received a message that an unclaimed scooter has been found parked in front of DP Jewellers at Zaveri Bazaar.
(ii) He visited Zaveri Bazaar along with Panch Witness Shambhu K. Dwadiga (PW-451).
(iii) He inspected the scooter and noticed that there were black spots outside the dicky of the scooter which was locked. He further deposed that the handle of the scooter was free.
(iv) Since blast had already occurred in Bombay, he got suspicious and, accordingly, sent a message to the control room for sending Bomb Detection and Disposal Squad (BDDS).
(v) Meanwhile, he cordoned off the area where the scooter was parked and sand bags were placed around the scooter and two panch witnesses, namely, Shri Shambhu (PW-451) and Shri Prasanna were also called.
(vi) Nand Kumar Chaugule (PW-444), an officer of BDDS, reached the spot along with his team and inspected the vehicle.
(vii) PW-444 found that there was a layer of brownish oily substance at the top, and thereafter, a layer of blackish oily substance and below the blackish substance, again one brownish layer was present in the dicky. He also noticed that the said cakes were also containing some pallets.
(viii) PW-547 further deposed that PW-444 took away three metallic tubes and one pipe with holes from the said three layers. The materials recovered were sealed in packets, and thereafter, wrapped in a brown paper.
(ix) PW-444 prepared a spot panchnama dated 15.03.1993 and instructed the police constable to take the scooter to LT Marg Police Station.
(x) On 10.06.1993, SI Dastagir Ghavandi (PW-552) handed over two keys seized by him during investigation of C.R. No. 155/1993.
(xi) On the same day, he called Vijay Ramji Wala (PW-454), Supervisor and Mr. Ajit Vanjari (PW-651) of Vasan Automobiles and in the presence of the two panchas, he gave the said two keys to PW-454 to check whether the same fits in the lock of the scooter which was parked in front of D.P. Jewellers. PW-454 was able to apply the keys to the said scooter.
(xii) He then drew a panchnama which is marked as Exh. No. 1868 stating that the keys found matched with all the three locks of the scooter, i.e., dicky lock, steering lock and the helmet-box lock.
297. 2 The deposition of PW-547 has proved that:
(i) A scooter was reported abandoned in front of D.P. Jewellers at Zaveri Bazaar.
(ii) The condition in which the scooter was found aroused suspicion.
(iii) PW-444 was called from BDDS who successfully diffused the bomb fitted in the front side dicky of the scooter. (the substance subsequently was found to be RDX).
(iv) The witness, in front of the independent witnesses, also checked that the keys recovered at the instance of the appellant fitted in the scooter.
Deposition of Nandkumar Anant Chaugule (PW-444).
297. 3 The deposition of PW-444 was recorded on 05/06.10.1998. At the time of the incident, he was the Incharge, Senior Inspector of Police, Bomb Detection and Disposal Squad of CID Intelligence, Bombay. He deposed that:
(i) On 15.03.1993, he received information through his operator that a scooter has been found lying in suspicious condition opposite to D.P. Jewellers, Zaveri Bazaar. He went to Zaveri Bazaar and inspected the scooter. The dicky of the scooter was opened by SI Pandre with the help of hook and rope.
(ii) The dicky of the said scooter contained a black substance with timer device inserted in the same. The remaining part of the dickey contained three or more polythene bags of brownish color material.
(iii) Thereafter, the timer was pulled out by SI Pandre by means of a small fishing hook tied with a rope. He further deposed that he separated the detonator from the timer pencil and made the same ineffective and handed over the same to the Police Officers at LT Marg Police Station.
(iv) The other officers from the BDDS removed the black and brown material from the front dickey of the scooter and gave the same to the police officers of LT Marg police station.
(v) From the physical appearance of the said black material, he gathered that the same was RDX and from the physical appearance of brown material, he gathered that the same was nitroglycerin, both being high explosive substances.
Deposition of Dhananjay Raghunath Daund (PW-532)
297. 4 The deposition of PW-532 was recorded on 02.12.1999. At the relevant time, he was a PSI attached with the Worli Police Station. He deposed that:
(i) He arrested the appellant (A-44) on 18.05.1993 and handed him over to PI Shri Ghavandi (PW-552), I.O. in C.R. No. 155/1993.
(ii) In the presence of Ramesh Pandurang Bhasare (PW-74), two keys of a Bajaj Scooter entangled in a ring were recovered vide disclosure and seizure Panchnama (Exh. No. 389) at the instance of the appellant who led the police party to Kwality Footwear shop, Khambekar Street.
(iii) He handed over the said keys to PI Ghavande (PW-552).
The owner of the scooter was traced through examination of the following witnesses:
Deposition of Sreeram Jeetram Vasan (PW-81)
298. PW-81 was the sub-Dealer of scooters carrying on business in the name of Mohan Automobiles. He deposed that:
(i) He used to purchase scooters from Vasan Automobiles and sell the same to customers.
(ii) He knows a person by the name Sayed Farid Sayed Abdul Wahab @ Farid Bhai (PW-298) who is also a sub-dealer for Bajaj Auto Ltd. and is carrying on business under the name Nisha Sales and Services.
(iii) In the month of February and March, 1993, he sold 22 Bajaj Chetak Scooters and 2 Kinetic Honda Scooters to PW-298 out of the lot of 40 scooters purchased by him from Vasan Automobiles.
(iv) On 18.03.1993, when he went to the office of the Crime Branch, he identified the three scooters, which were sold by him to Nisha Sales and Services on 14.02.1993, 04.03.1993 and 11.03.1993 and he further produced the notes Exh. Nos. 424, 424-A and 424-B respectively of the said scooters to Inspector Homi Irani.
Deposition of Sayeed Abdul Sattar (PW-82)
298. 1 PW-82 was working with Munaf Halari (AA). He had helped him in getting loan through his friend Rahid Shaikh. He deposed that:
(i) On 10.03.1993, Munaf (AA) contacted him for purchase of 2/3 Bajaj Scooters stating that he required the same for his foreign delegation.
(ii) On the same day, around 6 p.m., they took delivery of 2 scooters of blue and stone colour bearing registration Nos. MH-04-Z-261 and MH-05-TC-29, respectively, from Asgar Ali Tahir Ali Masalawala, Scooter Dealer, (PW 299).
(iii) Next day, i.e, on 11.03.1993, Munaf (AA) took delivery of the third scooter bearing Registration No. MH-05-TC 16 and asked PW-82 to arrange for documents for the registration of the said scooters and got two Xerox copies of Ration Card from Abdul Aziz, an RTO agent. Munaf (AA) collected the documents from him on 12.03.1993.
(iv) When he asked Munaf (AA) to repay the loan, Munaf told him to forget about it since the scooters have been purchased by Tiger Memon and that Tiger Memon has used the same for the bomb blast.
(v) Munaf Halari also cautioned him not to disclose this to anyone, else Tiger Memon will shoot him and his family members.
(vi) He identified the scooters in Court through their registration numbers.
Deposition of Govind Bechan Baria (PW-452)
298. 2 At the relevant time, PW-452 was working with Excellent Petroleum Company situated at J.J. Junction. He deposed that:
(i) Munaf Halari (AA) had requirement of 3 scooters and he had approached him on 10.03.1993 for the same.
(ii) He suggested to him that he should go to the Scooter Dealer, Asgar Ali Tahir Ali Masalawala (PW 299).
(iii) PW-299 referred Munaf (AA) to Sayed Farid Abdul Wahab @ Farid Bhai (PW 298), Scooter Dealer who was working under the name of Nisha Sales and Services.
298. 3 Deposition of Ajit Vithalrao Vanjari (PW-651) PW-651, at the relevant time, was working as a Sales Manager with M/s Vasan Automobiles. He deposed that he had sold 25 Bajaj Chetak Scooters to Mohan Automobiles.
Deposition of Sambhali S. Hargude (PW-325)
298. 4 PW-325 was the Sub-inspector on station house duty on 15.03.1993. He deposed that:
(i) He received information about the scooter bearing Registration No. MH-05-TC-16 parked at Zaveri Bazaar through Police Havaldar Shri Kumbhar posted at the Shaikh Memon Street chowki.
(ii) In the dickey of the said scooter, the iron pieces mixed with a black coloured substance were found.
(iii) The dickey was also containing a timer pencil inserted at the centre of the said black substance.
(iv) The bomb squad defused the said bomb by dismantling the timer pencil.
Deposition of Vijay Ramji Wala (PW-454)
298. 5 PW-454 was a Service Provider at M/s Vasan Automobiles, Kalyan. He deposed that on being asked to inspect the scooter with the help of the keys given to him at the LT Marg Police Station, he discovered that the said keys belonged to the said scooter. He was not sure about the registration number of the scooter. He, however, said that it was either MH-05-TC-15 or MH-05-TD-16. He then deposed that it was MH-05-TC-16. It is relevant to point out that the keys which were recovered at the instance of the appellant (A-44) belonged to the same scooter which was planted by the appellant at Zaveri Bazaar and was laden with highly explosive substances.
299. From the evidence discussed above, it is established that:
(i) The appellant (A-44) actively participated in the conspiracy;
(ii) He was an old associate of Tiger Memon;
(iii) He agreed with the object of conspiracy in the meeting held at Hotel Taj Mahal and performed several overt acts pursuant to the said agreement;
(iv) He associated himself with Tiger Memon (AA) and on his instructions with Anwar (AA).
(v) He was seen taking instructions and being in association with Anwar (AA) by several co-conspirators.
(vi) In his presence, detonators were fitted in the suitcases filled with RDX.
(vii) He planted one such suitcase laden with RDX in Room No. 3078 of Hotel Centaur, Juhu which exploded injuring 3 persons and causing damage to the property to the tune of Rs.2.10 crores;
(viii) He parked a scooter laden with RDX in front of the shop of DP Jewellers, Zaveri Bazaar;
(ix) He threw the keys of the room on the roof of a Footwear shop where he hid the clothes he was wearing at the time of commission of offence and also the keys of the scooter which he had parked at Zaveri Bazaar to avoid detection by police; and
(x) He went to his friend Md. Farooq Mohammed Yusuf Pawale (A-16) and told him everything who, in turn, supported him by saying that Allah would help him as he has done this for his community.
300. It is contended on behalf of the appellant (A-44) that no TIP was conducted in reality. It is pointed out by the prosecution that in the instant case, after the arrest of the appellant, identification parade was conducted on 04.06.1993 by Sharad S. Vichare, Special Executive Magistrate (PW-459) wherein PWs-27 and 26 identified the appellant as the person who had parked the scooter filled with RDX at Zaveri Bazaar. It is further submitted that on 07.06.1993, TIP was conducted by Vaman D. Sapre, Special Executive Magistrate (PW-249) wherein PWs-17 and 18 identified the appellant as the person who had visited the Hotel Centaur, Juhu and planted the suitcase in Room No. 3078 of the Hotel. It is further submitted that the said parade was duly conducted in the presence of panch witnesses and memorandum panchnamas were also prepared for the same.
301. It is further contended on behalf of the appellant (A-44) that Nandkumar Anant Chaugule (PW-444), an officer of BDDS, forcibly opened the lock of the dickey so the question of opening the
dickey with the keys recovered by PW-454 from the roof of the footwear shop does not arise.
302. Further, the prosecution submitted that the appellant (A-44), after his arrest on 18.05.1993, made a disclosure statement on 19.05.1993 and led the police party to Kwality Footwear shop at Khambekar street, and thereafter, he took the keys from its roof and further led the police party to Room No. 12 of the building opposite the shop. It is further stated that the appellant then opened the lock of the room with the same keys and went inside the room and two keys of Bajaj Scooter and other articles were recovered from a cupboard. Thereafter, the said keys were handed over to the IO who gave the same to PW-547. In order to complete the link, PW-547 called Vijay Ramji Wala (PW-454) who is a Supervisor at M/s Vasan Automobiles to check whether the keys were of the same scooter which was parked by the appellant at Zaveri Bazaar. Thereafter, PW-454 inserted the keys in all the three locks of the scooter and the same tallied with the locks. Thus it was proved that the keys recovered at the instance of the appellant belonged to the scooter laden with RDX recovered from Zaveri Bazaar.
303. It is also contended on behalf of the appellant (A-44) that the handwriting in which the booking was made in the hotel was not confirmed during investigation. We are unable to accept the contention raised since on perusal of the entire evidence as produced by the prosecution, it is established that the appellant planted the suitcase laden with RDX in Room No. 3078 of Hotel Centaur, Juhu. We are satisfied that sufficient evidence has been brought on record by the prosecution to show that the said room was booked by the conspirators in a fake name for which payment was also deposited in advance.
304. It is further contended by the appellant that PW-2 (Approver) has not named the appellant in his deposition. The prosecution pointed out that this does not have any bearing on the prosecution case.
305. We are satisfied that the prosecution has produced sufficient evidence against the appellant (A-44) to bring home the charges framed against him.
******************
283. The instant appeals are directed against the final judgment and order of conviction and sentence dated 27.09.2006 and 18.07.2007 respectively, whereby the appellant has been convicted and sentenced to Death by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1/1993.
Charges:
284. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-44). The relevant portion of the said charge is reproduced hereunder:-
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UA.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate Sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist 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.
284.1 In addition to the above-said principal charge of conspiracy framed at head firstly, the appellant (A-44) was also charged on other counts which are as under:
At head secondly; The appellant (A-44) committed an offence punishable under Section 3(3) of TADA by committing following overt acts:
a) He attended a meeting with co-conspirators at Hotel Taj Mahal; and
b) He surveyed Stock Exchange Building and Bombay Municipal Corporation Building, along with co-accused for the purpose of committing terrorist acts by planting bombs.
At head thirdly; On 12.03.1993, the appellant (A-44) planted a suitcase filled with RDX in Room No.3078 of Hotel Centaur, Juhu Tara Road, Mumbai, which exploded, causing injuries to three persons and loss of property to the tune of Rs.2.1 crore, thereby committing an offence punishable under Section 3(2)(ii) of TADA
At head fourthly; The appellant (A-44), by causing the aforesaid explosion in Hotel Centaur, Juhu Tara Road, Mumbai, which resulted into injuries to three persons, committed an offence punishable under Section 307 of IPC
At head fifthly; The appellant (A-44), by causing the aforesaid explosion, which resulted into injuries to three persons, committed an offence punishable under Section 324 of IPC.
At head sixthly; The appellant (A-44), by causing the aforesaid explosion, which resulted in damage of property, by using explosive material, committed an offence punishable under Section 436 of IPC.
At head seventhly; On 12.03.1993, the appellant (A-44) planted an explosive laden scooter bearing No. MH-05-TC-16 at Shaikh Memon Street with an intent to cause death and destruction of properties by explosion and thereby committed an offence punishable under Section 3(3) of TADA.
At head eighthly; The appellant (A-44), by planting the aforesaid explosive laden scooter also committed an offence punishable under Section 307 of IPC
At head ninthly; The appellant (A-44), by planting the aforesaid explosive laden scooter with the knowledge that it was likely to cause damage to the properties, committed an offence punishable under Section 435 read with Section 511 of IPC.
At head tenthly; The appellant (A-44), by planting the aforesaid explosive laden scooter committed an offence punishable under Section 436 of IPC.
At head eleventhly; The appellant (A-44), by planting the aforesaid explosive laden suitcase in Hotel Centaur, Juhu Tara Road, which caused damage to the properties, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908 and;
At head twelfthly; The appellant (A-44), by planting the aforesaid explosive laden suitcase and by possessing the RDX in the said suitcase unauthorisedly committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908.
285. The Designated Judge found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the above said charges as follows:
Conviction and Sentence:
(i) The appellant (A-44) has been sentenced to death under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with the offences mentioned in the said charge. In addition, the appellant was also ordered to pay a fine of Rs. 25, 000/-. (charge firstly)
(ii) He has been sentenced to RI for 12 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for one year for the commission of offence under Section 3(3) of TADA. (charge secondly)
(iii) He has been sentenced to RI for life along with a fine of Rs. 25,000/- , in default, to further undergo RI for 6 months for the commission of offence under Section 3(2)(ii) of TADA. (charge thirdly)
(iv) He has been sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months for the commission of offence under Section 307 of IPC. (charge fourthly)
(v) He has been sentenced to RI for 3 years for the commission of offence under Section 324 of IPC. (charge fifthly)
(vi) He has been sentenced to RI for 10 years along with a fine of Rs.1,00,000/-, in default, to further undergo RI for 3 years for the commission of offence under Section 436 of IPC. (charge sixthly)
(vii) He has been sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year for the commission of offence under Section 3(3) of TADA. (charge seventhly)
(viii) He has been sentenced to RI for 10 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year for the commission of offence under Section 307 of IPC. (charge eighthly)
(ix) He has been sentenced to RI for 31/2 (three and a half) years along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months for the commission of offence under Sections 435 read with 511 of IPC. (charge ninthly)
(x) He has been sentenced to RI for 5 years along with a fine of Rs. 12,500/-, in default, to further undergo RI for 3 months for the commission of offence under Section 436 read with Section 511 of IPC. (charge tenthly)
(xi) He has been sentenced to RI for 7 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months for commission of offence under Section 3 of the Explosive Substances Act, 1908. (charge eleventhly)
(xii) He has been sentenced to RI for 7 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months, for the commission of offence under Section 4(b) of the Explosive Substances Act, 1908. (charge twelfthly)
Evidence
286. The evidence against the appellant (A-44) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimonies of prosecution witnesses including eye witnesses; and
(iv) documentary evidence.
Conspiracy:
287. As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. The cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer the same once again.
Confessional Statement of the appellant – Mohammed Mushtaq Moosa Tarani (A- 44)
288. The prosecution pointed out the involvement of the appellant (A-44) in the conspiratorial acts which is evident from his own confession recorded under Section 15 of TADA on 26.05.1993 and 28.05.1993 at 18.30 hrs by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confessional statement is summarized hereinbelow:
(i) Since 1991, the appellant (A-44) had developed good friendship with Tiger Memon and he knew that Tiger Memon was a notorious goonda.
(ii) On 05.03.1993, the appellant (A-44), along with his friend Md. Farooq Mohammed Yusuf Pawale (A-16), met Tiger Memon and other co-conspirators at Taj Mahal Hotel where Tiger Memon told them that they have to take revenge for the damage suffered by Muslims during the riots and called for their help.
(iii) Thereafter, the appellant and others, viz., A-16, PW-2, Bashir Ahmed Usman Gani Khairulla (A-13), Javed Chikna agreed to help Tiger Memon. The appellant, along with Tiger Memon and others, went to survey the BMC building and the Stock Exchange building.
(iv) On 06.03.1993, the appellant along with PW-2 and A-13 went to survey the BMC building, BJP and Shiv Sena office and also showed them the entry and exit gates of the said buildings.
(v) On the same day, after surveying the targets, the appellant met A-16 and told him about what transpired during the day and about the plans of Tiger Memon, on which, A-16 told the appellant not to worry and do whatever has been directed by Tiger Memon.
(vi) On 11.03.1993, the appellant reached Al-Hussaini building and on the instructions of Tiger Memon understood his job from Anwar. Thereafter, Anwar instructed the appellant to carry a suitcase filled with RDX to Hotel Centaur, Juhu on 12.03.1993 and plant the same in the reserved room.
(vii) On 12.03.1993, the appellant went to Anwars house and thereafter both of them boarded a Maroon coloured car driven by Asgar Yusuf Mukadam (A-10). Anwar took out pencil detonators from his pocket and inserted them in the three suitcases filled with RDX. Thereafter, the appellant was dropped by Anwar on the way and he (A-44) took a taxi and reached Hotel Centaur.
(viii) On reaching the hotel, the appellant kept the bag filled with explosives in Room No. 3078 and came back to the Al-Hussaini building where he informed Anwar that he had planted the bag containing bomb at Hotel Centaur, Juhu in Room No. 3078.
(ix) On Anwars instructions, the appellant drove a scooter filled with RDX and parked the same at Zaveri Bazaar.
(x) The appellant, thereafter, met A-16 and informed everything to him on which A-16 told him that he should not worry and nothing would happen as the appellant has done the job for their community and Allah would help him.
289. On perusal of the aforesaid confessional statement of the appellant (A-44), the following facts emerge:
(i) The appellant was an old associate of Tiger Memon;
(ii) The appellant was fully aware of Tiger Memons character and that he was a goonda;
(iii) The appellant had participated in the conspiratorial meeting with Tiger and his co-conspirators;
(iv) In the said meeting, the appellant agreed to help the Tiger Memon in the object of the conspiracy; and
(v) Pursuant to the said agreement, the appellant performed several acts, namely, reconnaissance of targets, planting of suitcase laden with RDX and scooter bomb at the targets.
290. The confession of the appellant (A-44) establishes the charges framed against him in the trial. The fact that the appellant (A-44) knowingly committed the overt act of planting the bomb at Hotel Centaur, Juhu, is evident from his own confession. He himself informed Anwar that he had planted the bag containing bomb at Hotel Centaur, Juhu. The appellant (A-44) was fully conscious of the gravity and diabolic nature of his act which is apparent from his confession wherein he stated that after committing the overt acts he himself informed everything to A-16 who consoled him by saying that Allah would help him as he has done all this for his community.
Retraction Statement:
291. Mr. Manish, learned counsel for the appellant (A-44) contended that the above-mentioned confession of the appellant dated 26.05.1993 and 28.05.1993 should not be relied upon since it was sought to be retracted by the appellant on 07.06.1994. In reply, learned senior counsel for the CBI submitted that a voluntary and free confession, even if retracted subsequently, can be relied upon. It is also relevant to point out that the retraction allegedly made by the appellant also fails to pin-point the reason behind failure to make complaint to the authorities or police officers or any other authority including the court regarding his signatures being obtained on blank papers and/or the papers containing some typed material and the reason to effect the said signatures. In this case, the Designated Court rightly relied upon the original confession and discarded the subsequent retraction. Since we have elaborately discussed the admissibility or otherwise of the retraction statements in the earlier part of our judgment, there is no need to refer the same once again.
Confessional Statements of co-accused:
292. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-44) are summarized hereinbelow:
Confessional Statement of Md. Shoaib Mohammed Kasam Ghansar (A-9)
292.1 Confessional statement of A-9 under Section 15 of TADA has been recorded on 19.04.1993 and 22.04.1993 by Shri P.K. Jain, the then DCP, Zone X, Bombay. A brief summary of the statement with reference to the appellant is as follows:-
(i) When A-9 along with Parvez Nazir Ahmed Shaikh (A-12) and Asgar Yusuf Mukadam (A-10) reached the house of Anwar, a boy of fair color with curly hair, wearing coat and pant, also came along with him.
(ii) After Anwar inserted the pencil detonators in the bags, the boy with curly hair was dropped and was asked to go to Hotel Centaur, Juhu and to plant the bag at the designated place and come back.
(iii) At the Al-Hussaini building, first, the boy with curly hair came back and then Anwar came back followed by Parvez (A-12).
(iv) In the afternoon of 12.03.1993, on the instructions of Anwar, A-44 drove the scooter filled with black chemical and parked the same at Zaveri Bazaar.
Confessional Statement of Asgar Yusuf Mukadam (A-10)
292.2 Confessional statement of A-10 under Section 15 of TADA has been recorded on 20.04.1993 and 23.04.1993 at 18:00 hrs by Shri K.L. Bishnoi (PW- 193), the then DCP, Zone III, Bombay. A brief summary of the confessional statement of A-10 with reference to the appellant (A-44) is as follows:
(i) When A-10 reached the house of Anwar, he came down along with a boy and all of them sat in a car. In the car, Anwar took out pencil detonators from his pocket and inserted the same in the bags. Thereafter, Anwar instructed the boy (whom he referred to as Mushtaq) to get down with the bag and plant the same at the designated place.
(ii) When A-10 reached Al-Hussaini after dropping Anwar and others, the appellant (A-44) also reached there. Thereafter, as instructed by Anwar, A-44 drove a scooter filled with RDX and parked the same at Zaveri Bazaar.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
292.3 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 and 20.04.1994 at 06:50 hrs. by Shri P.K. Jain (PW-189), the then DCP, Zone X, Bombay. A brief summary of the statement with reference to the appellant (A-44) is as follows:
i) When A-12 along with A-10 and A-9 reached the house of Anwar, they met a person with curly hair whose name was Mushtaq. Mustaq and Anwar sat in a car, and thereafter, Anwar opened the bags and inserted pencil detonators which he was carrying.
(ii) When A-12 reached the Al-Hussaini building after planting the suitcase at Hotel Sea Rock, the appellant (A-44) had also reached there.
Confessional Statement of Imtiyaz Yunus Miyan Ghavate (A-15)
292.4 Confessional statement of A-15 under Section 15 of TADA has been recorded on 07.05.1993 and 09.05.1993 by Shri K.L. Bishnoi, (PW-193), the then DCP, Zone III, Bombay. A brief summary of the said statement with reference to the appellant is as follows:
(i) When A-15 reached the residence of Anwar, the appellant had also come there. He had curly hair and fair complexion and was wearing a black coloured coat.
(ii) A-10 came there in a maroon coloured Maruti Van and the appellant along with Anwar and others sat in the van and left the place.
(iii) When the appellant came to the Al-Hussaini Building, he was holding his coat in his hand. Thereafter, Anwar instructed him to plant the scooter filled with RDX.
293. A perusal of the confessional statements of all the above accused, viz., A-9, A-10 A-12 and A-15 clearly establish the fact that it corroborates the confessional statement of the appellant (A-44). The above- said confessions of the co-accused further establish the following facts:-
(i) The appellant (A-44) was seen in the company of the Anwar (AA);
(ii) The appellant went along with Anwar (AA) and Asgar Yusuf Mukadam (A-10) in a Maruti Van.
(iii) The appellant witnessed the insertion of pencil detonators in the suitcases filled with RDX;
(iv) The appellant planted the suitcase filled with RDX in Hotel Centaur Juhu;
(v) The appellant returned to the Al-Hussaini building and reported the successful planting of the suitcase bomb to Anwar; and
(vi) On the instructions of Anwar (AA), the appellant proceeded to park the scooter filled with RDX at Zaveri Bazaar.
Deposition of Prosecution Witnesses:
Deposition of Ravindra Sitaram Vichare (PW-17)
294. The deposition of PW-17 was recorded on 20.11.1995. The relevant material in his evidence is as follows:-
(i) He deposed that at the relevant time, he was working as a bellboy at Hotel Centaur, Juhu.
(ii) On 12.03.1993, around 11:45 am, one guest got down from the motor taxi and was carrying a light blue coloured briefcase type bag.
(iii) He took the bag from the hands of the guest and kept it in the Baggage Section.
(iv) After sometime, the guest came to the Baggage Section and picked up his bag and enquired about the lift for going to the room.
(v) He showed the way towards the lift to the guest.
(vi) At around 3:00/3:30 p.m., when he was in the lobby of the Hotel, there was a loud sound of explosion.
(vii) He identified the appellant (A-44) before the court in the dock as the person who came to the Hotel on 12.03.1993.
(viii) He also identified the appellant in the identification parade dated 07.06.1993 conducted by
Special Executive Magistrate, Vaman D. Sapre (PW-249) at Santacruz Police Station.
Deposition of Milind Purushottam Kamble (PW-18)
294.1 The deposition of PW-18 was recorded on 22.11.1995 and he deposed that:
(i) At the relevant time, he was working as an attendant in the House Keeping Department of Hotel Centaur, Juhu.
(ii) On 12.03.1993, the appellant (A-44) enquired from him about the location of Room No. 3078 in the Hotel.
(iii) Floor Supervisor, who was also present with PW-18, pointed out towards Room No. 3078.
(iv) He saw the appellant (A-44) entering into Room No. 3078 with a light blue color suitcase.
(v) Thereafter, the appellant (A-44) came out of the room and left saying that he is going to the restaurant to meet someone and will return shortly. At that time, he was not carrying the blue suitcase.
(vi) He identified the appellant (A-44) before the Court in the dock as the person who kept the suitcase in Room No. 3078.
(vii) He also identified the appellant (A-44) in the identification parade held on 07.06.1993 conducted by the Special Executive Magistrate, Vaman D. Sapre (PW-249).
(viii) He also identified Article No. 9 (coat), Article No. 10 (black pant) and Article No. 11 (white shirt) being clothes worn by the appellant (A-44) on 12.03.1993 when he visited the Hotel.
295. From the perusal of the testimony of PWs-17 and 18, it is clear that the witnesses established the identity of the person, who planted the suitcase in the hotel, as the appellant. They very well proved how the appellant went to the room where the blast took place. The presence of witnesses in the hotel at the time when the appellant went to the hotel for planting the suitcase has been fully established. The witnesses have withstood the lengthy cross-examination and established themselves as credible and reliable witnesses.
Deposition of Nitin Sumitran (PW-260)
295. 1 The deposition of PW-260 was recorded on 13.01.1998. He deposed that:
(i) At the relevant time, he was working as a receptionist at Hotel Centaur, Juhu.
(ii) On 08.03.1993, a male person, aged about 30 to 35 years, approached the Front Desk and told that he was having a reservation in the name of one Mr. Sanjeev Rai and that he had come to make an advance payment of Rs.5,000/- towards reservation of the room.
Deposition of Sanjay Manohar Dalvi (PW-261)
295. 2 The deposition of PW-261 was recorded on 13.01.1998. He deposed that at the relevant time, he was working as the Front Office Cashier and he confirmed that a room was booked at Hotel Centaur, Juhu by one Mr. Sanjeev Rai on 08.03.1993 and he issued a receipt of Rs.5,000/- (Exh. 1093) as advance payment towards the room rent.
Deposition of Cedric Merwyn Creado (PW-262)
295. 3 The deposition of PW-262 was recorded on 13.01.1998. He deposed that:
(i) At the relevant time, he was working as a Front Office Receptionist and on 11.03.1993, a male person came to the desk and enquired for a room.
(ii) He asked him as to whether he has any prior reservation, on which, he replied that he was having a reservation in the name of Sanjeev Rai.
(iii) He gave him a registration card which he returned after filling the same.
(iv) On verification of the card, he found that the name was mentioned as Gyanchandani Lalit and the address was 501, Bel Air Apartment, Linking Road, Bandra, Bombay. As the booking was made in the name of Sanjeev Rai, he asked him as to why he has written a different name on which he replied that since people know him by this name that is why he had mentioned the said name.
(v) He deleted the name and re-wrote the name as Sanjeev Rai on the Registration Card. A corrected reservation slip (Exh. 1096) was also prepared by the Hotel staff.
(vi) Thereafter, PW-262 allotted Room No. 3078 to him and gave him the keys of the room.
Deposition of Titus Peter Paul Pinto (PW-102)
295. 4 The deposition of PW-102 was recorded on 27.09.1996. PW-102 is a resident of Bel Air Apartment since 1963 and he is the Secretary of the said Cooperative Housing Society. He deposed that there is no flat bearing No. 501 in the said Apartment. He further deposed that no occupant by the name of Sanjeev Rai or Gyanchandani Lalit was living at the relevant time in that building.
Deposition of Ravindra Mahadev Kolte (PW-322)
295. 5 The deposition of PW-322 was recorded on 27.04.1998. He deposed that:
(i) At the relevant time, he was working as an Assistant Security Officer at Hotel Centaur, Juhu. He also described about the scene of the blast.
(ii) Three persons were injured in the blast on 12.03.1993 at 15:30 hrs. in Room No. 3078.
(iii) The ceiling and flooring of the said room were completely destroyed and the occupant of the said room was not present in the room at the time of blast.
(iv) He also made a complaint which was registered as C.R. No. 155/1993.
Deposition of Jaisingh Shivajirao Patil, Police Officer, (PW-544)
295. 6 The deposition of PW-544 was recorded on 10.12.1999. In his deposition, he deposed that:-
(i) He inspected the scene of the blast in the presence of panch witness Tiyadath R. Nair (PW-438) and prepared a spot panchnama Exh. No. 1414.
(ii) He also prepared a panchnama dated 15.03.1993 of four sealed sample packets containing debris collected by the experts from FSL marked as Exh. No. 1859 in the presence of Sadashiv M. Pattanshetti (PW-549).
(iii) He also proved that he recorded FIR being C.R. No. 155/1993 marked as Exh. No. 1208.
(iv) The aforesaid articles which were seized by him were sent to the forensic lab for examination.
(v) FSL Reports (Exh. Nos. 2604 and 2605) show the presence of traces of High Explosive substance, viz., RDX on these articles.
Deposition of Sridhar M. Pandit (PW-355)
295. 7 At the relevant time, he was working as GM (Technical), Hotel Corporation of India. He deposed that he inspected the site of the explosion and the estimated damage at Hotel Centaur, Juhu came to the tune of Rs. 2.1 crores.
Deposition of Ketan Kantilal Shah (PW-433)
295. 8 He was the guest staying at the Hotel at the relevant time and has proved the injuries sustained by him on account of the explosion in the Hotel on 12.03.1993.
Deposition of Vaman Dhondu Sapre, Special Executive Magistrate (PW-249)
295. 9 He is the person who conducted TIP on 07.06.1993 at Santacruz Police Station in which the appellant (A-44) was identified by PWs-17 and 18 and has proved the TIP panchnama Exh. No. 1071 dated 07.06.1993.
Deposition of Ramesh Pandurang Bhasare (PW-74)
295. 10 He is a panch witness who was running a cigarette-bidi stall at Zaveri Bazaar at the relevant time and he deposed as under:
(i) The appellant (A-44) made a statement in the office of Crime Branch on 19.05.1993.
(ii) Thereafter, the appellant (A-44) led the police party and panchas to a Footwear Shop at Khambekar Street and took out the keys from a pit like portion on the roof.
(iii) The police party was further taken to Room No. 12 of a building opposite to Building No. 160 which was locked.
(iv) The appellant opened the lock with the keys which he had taken out from the pit.
(v) Thereafter, from a cupboard, the appellant (A-44) took out a black coat, black pant, white shirt and two keys marked as Article 258-B(i).
(vi) The police party recovered the aforesaid articles vide discovery panchnama marked as Exhibit 389.
295. 11 The eye witness at the hotel has also identified the above cloth as the same which was worn by the appellant (A-44) at the time of planting of suitcase bomb.
Evidence in respect of the unexploded scooter parked in front of DP Jewellers at Zaveri Bazaar:
Deposition of Shashikant Ramkumar Shukla (PW-26).
296. PW-26 is an eye witness to the incident who witnessed the parking of the said scooter by the appellant (A-44) in front of the shop of D.P. Jewellers, Zaveri Bazaar. He deposed that:
(i) At the relevant time, he was the owner of a cutlery shop at Vithalwadi Naka, Zaveri Bazaar.
(ii) On 12.03.1993, he saw the appellant (A-44) quarreling with a car driver in front of D.P. Jewellers, Zaveri Bazaar for parking space. He forcibly parked the grey coloured scooter with Registration No. MH- 05-TC 16 and left the place on the pretext of offering namaz at Juma Masjid.
(iii) On 16.03.1993, he learnt that the scooter parked in front of the shop of D.P. Jewellers, Zaveri Bazaar contained explosives.
(iv) Thereafter, he went to Lokmanya Tilak Marg Police Station to see the scooter which was taken into custody by the police. There, he met PI Subhash Jadhav who recorded his statement and showed him two scooters. He identified the scooter which was parked in front of the shop of D.P. Jewellers at Zaveri Bazaar.
(v) He also identified the appellant (A-44) before the court in the dock as the person who had parked the scooter
(vi) He also identified the appellant (A-44) in the Identification Parade dated 04.06.1993 conducted by Sharad Vichare, Special Executive Magistrate, (PW-459).
Deposition of Shantaram Sakharam Sigwan (PW-27) (eye-witness).
296. 1 PW-27 is a salesman working at Shop No. 263, Shaikh Memon Street, Zaveri Bazaar. He deposed that:
(i) He saw the appellant (A-44) arguing with a car driver to park his scooter in front of D.P. Jewellers. After forcibly parking his grey scooter No. MH-05-TC-16, the appellant left on the pretext of offering namaz at Juma Masjid.
(ii) On 12.03.1993, an explosion took place in front of the shop of Narayandas Jewellers and there was panic in the locality and all the shop keepers closed their shops and everyone left for their home.
(iii) On 16.03.1993, he learnt from a feriwala that the police have seized a scooter which was parked in front of the shop of D.P. Jewellers.
(iv) He, thereafter, went to the police station and noticed that a grey scooter bearing Registration No. MH-05-TC-16 was parked in the compound of the police station.
(v) He identified the scooter and PI Jadhav recorded his statement.
(vi) He also identified the appellant (A-44) before the court in the dock as the person who had parked the scooter.
(vii) PW-27 also identified the appellant (A-44) in the TIP conducted on 04.06.1993 by Sharad S. Vichare, Special Executive Magistrate, (PW-459) and Memorandum Panchnama Exh. No. 1461 was prepared for the same.
297. The eye witnesses discussed above clearly established the following facts:
(i) the appellant (A-44) came on a scooter at the relevant time.
(ii) the appellant (A-44) had a sort of quarrel with a car driver with regard to parking.
(iii) the appellant (A-44) tried to forcibly park the said scooter, which drew the attention of the witnesses.
(iv) the appellant (A-44) left the place on the pretext of offering namaz.
(v) the identity of the appellant (A-44) is fully established and he has been identified by both the witnesses in TIP.
Deposition of Subhash Dattaram Jadhav (PW-547)
297. 1 At the relevant time, PW-547 was working as PI with LT Marg Police Station. He deposed that:
(i) He received a message that an unclaimed scooter has been found parked in front of DP Jewellers at Zaveri Bazaar.
(ii) He visited Zaveri Bazaar along with Panch Witness Shambhu K. Dwadiga (PW-451).
(iii) He inspected the scooter and noticed that there were black spots outside the dicky of the scooter which was locked. He further deposed that the handle of the scooter was free.
(iv) Since blast had already occurred in Bombay, he got suspicious and, accordingly, sent a message to the control room for sending Bomb Detection and Disposal Squad (BDDS).
(v) Meanwhile, he cordoned off the area where the scooter was parked and sand bags were placed around the scooter and two panch witnesses, namely, Shri Shambhu (PW-451) and Shri Prasanna were also called.
(vi) Nand Kumar Chaugule (PW-444), an officer of BDDS, reached the spot along with his team and inspected the vehicle.
(vii) PW-444 found that there was a layer of brownish oily substance at the top, and thereafter, a layer of blackish oily substance and below the blackish substance, again one brownish layer was present in the dicky. He also noticed that the said cakes were also containing some pallets.
(viii) PW-547 further deposed that PW-444 took away three metallic tubes and one pipe with holes from the said three layers. The materials recovered were sealed in packets, and thereafter, wrapped in a brown paper.
(ix) PW-444 prepared a spot panchnama dated 15.03.1993 and instructed the police constable to take the scooter to LT Marg Police Station.
(x) On 10.06.1993, SI Dastagir Ghavandi (PW-552) handed over two keys seized by him during investigation of C.R. No. 155/1993.
(xi) On the same day, he called Vijay Ramji Wala (PW-454), Supervisor and Mr. Ajit Vanjari (PW-651) of Vasan Automobiles and in the presence of the two panchas, he gave the said two keys to PW-454 to check whether the same fits in the lock of the scooter which was parked in front of D.P. Jewellers. PW-454 was able to apply the keys to the said scooter.
(xii) He then drew a panchnama which is marked as Exh. No. 1868 stating that the keys found matched with all the three locks of the scooter, i.e., dicky lock, steering lock and the helmet-box lock.
297. 2 The deposition of PW-547 has proved that:
(i) A scooter was reported abandoned in front of D.P. Jewellers at Zaveri Bazaar.
(ii) The condition in which the scooter was found aroused suspicion.
(iii) PW-444 was called from BDDS who successfully diffused the bomb fitted in the front side dicky of the scooter. (the substance subsequently was found to be RDX).
(iv) The witness, in front of the independent witnesses, also checked that the keys recovered at the instance of the appellant fitted in the scooter.
Deposition of Nandkumar Anant Chaugule (PW-444).
297. 3 The deposition of PW-444 was recorded on 05/06.10.1998. At the time of the incident, he was the Incharge, Senior Inspector of Police, Bomb Detection and Disposal Squad of CID Intelligence, Bombay. He deposed that:
(i) On 15.03.1993, he received information through his operator that a scooter has been found lying in suspicious condition opposite to D.P. Jewellers, Zaveri Bazaar. He went to Zaveri Bazaar and inspected the scooter. The dicky of the scooter was opened by SI Pandre with the help of hook and rope.
(ii) The dicky of the said scooter contained a black substance with timer device inserted in the same. The remaining part of the dickey contained three or more polythene bags of brownish color material.
(iii) Thereafter, the timer was pulled out by SI Pandre by means of a small fishing hook tied with a rope. He further deposed that he separated the detonator from the timer pencil and made the same ineffective and handed over the same to the Police Officers at LT Marg Police Station.
(iv) The other officers from the BDDS removed the black and brown material from the front dickey of the scooter and gave the same to the police officers of LT Marg police station.
(v) From the physical appearance of the said black material, he gathered that the same was RDX and from the physical appearance of brown material, he gathered that the same was nitroglycerin, both being high explosive substances.
Deposition of Dhananjay Raghunath Daund (PW-532)
297. 4 The deposition of PW-532 was recorded on 02.12.1999. At the relevant time, he was a PSI attached with the Worli Police Station. He deposed that:
(i) He arrested the appellant (A-44) on 18.05.1993 and handed him over to PI Shri Ghavandi (PW-552), I.O. in C.R. No. 155/1993.
(ii) In the presence of Ramesh Pandurang Bhasare (PW-74), two keys of a Bajaj Scooter entangled in a ring were recovered vide disclosure and seizure Panchnama (Exh. No. 389) at the instance of the appellant who led the police party to Kwality Footwear shop, Khambekar Street.
(iii) He handed over the said keys to PI Ghavande (PW-552).
The owner of the scooter was traced through examination of the following witnesses:
Deposition of Sreeram Jeetram Vasan (PW-81)
298. PW-81 was the sub-Dealer of scooters carrying on business in the name of Mohan Automobiles. He deposed that:
(i) He used to purchase scooters from Vasan Automobiles and sell the same to customers.
(ii) He knows a person by the name Sayed Farid Sayed Abdul Wahab @ Farid Bhai (PW-298) who is also a sub-dealer for Bajaj Auto Ltd. and is carrying on business under the name Nisha Sales and Services.
(iii) In the month of February and March, 1993, he sold 22 Bajaj Chetak Scooters and 2 Kinetic Honda Scooters to PW-298 out of the lot of 40 scooters purchased by him from Vasan Automobiles.
(iv) On 18.03.1993, when he went to the office of the Crime Branch, he identified the three scooters, which were sold by him to Nisha Sales and Services on 14.02.1993, 04.03.1993 and 11.03.1993 and he further produced the notes Exh. Nos. 424, 424-A and 424-B respectively of the said scooters to Inspector Homi Irani.
Deposition of Sayeed Abdul Sattar (PW-82)
298. 1 PW-82 was working with Munaf Halari (AA). He had helped him in getting loan through his friend Rahid Shaikh. He deposed that:
(i) On 10.03.1993, Munaf (AA) contacted him for purchase of 2/3 Bajaj Scooters stating that he required the same for his foreign delegation.
(ii) On the same day, around 6 p.m., they took delivery of 2 scooters of blue and stone colour bearing registration Nos. MH-04-Z-261 and MH-05-TC-29, respectively, from Asgar Ali Tahir Ali Masalawala, Scooter Dealer, (PW 299).
(iii) Next day, i.e, on 11.03.1993, Munaf (AA) took delivery of the third scooter bearing Registration No. MH-05-TC 16 and asked PW-82 to arrange for documents for the registration of the said scooters and got two Xerox copies of Ration Card from Abdul Aziz, an RTO agent. Munaf (AA) collected the documents from him on 12.03.1993.
(iv) When he asked Munaf (AA) to repay the loan, Munaf told him to forget about it since the scooters have been purchased by Tiger Memon and that Tiger Memon has used the same for the bomb blast.
(v) Munaf Halari also cautioned him not to disclose this to anyone, else Tiger Memon will shoot him and his family members.
(vi) He identified the scooters in Court through their registration numbers.
Deposition of Govind Bechan Baria (PW-452)
298. 2 At the relevant time, PW-452 was working with Excellent Petroleum Company situated at J.J. Junction. He deposed that:
(i) Munaf Halari (AA) had requirement of 3 scooters and he had approached him on 10.03.1993 for the same.
(ii) He suggested to him that he should go to the Scooter Dealer, Asgar Ali Tahir Ali Masalawala (PW 299).
(iii) PW-299 referred Munaf (AA) to Sayed Farid Abdul Wahab @ Farid Bhai (PW 298), Scooter Dealer who was working under the name of Nisha Sales and Services.
298. 3 Deposition of Ajit Vithalrao Vanjari (PW-651) PW-651, at the relevant time, was working as a Sales Manager with M/s Vasan Automobiles. He deposed that he had sold 25 Bajaj Chetak Scooters to Mohan Automobiles.
Deposition of Sambhali S. Hargude (PW-325)
298. 4 PW-325 was the Sub-inspector on station house duty on 15.03.1993. He deposed that:
(i) He received information about the scooter bearing Registration No. MH-05-TC-16 parked at Zaveri Bazaar through Police Havaldar Shri Kumbhar posted at the Shaikh Memon Street chowki.
(ii) In the dickey of the said scooter, the iron pieces mixed with a black coloured substance were found.
(iii) The dickey was also containing a timer pencil inserted at the centre of the said black substance.
(iv) The bomb squad defused the said bomb by dismantling the timer pencil.
Deposition of Vijay Ramji Wala (PW-454)
298. 5 PW-454 was a Service Provider at M/s Vasan Automobiles, Kalyan. He deposed that on being asked to inspect the scooter with the help of the keys given to him at the LT Marg Police Station, he discovered that the said keys belonged to the said scooter. He was not sure about the registration number of the scooter. He, however, said that it was either MH-05-TC-15 or MH-05-TD-16. He then deposed that it was MH-05-TC-16. It is relevant to point out that the keys which were recovered at the instance of the appellant (A-44) belonged to the same scooter which was planted by the appellant at Zaveri Bazaar and was laden with highly explosive substances.
299. From the evidence discussed above, it is established that:
(i) The appellant (A-44) actively participated in the conspiracy;
(ii) He was an old associate of Tiger Memon;
(iii) He agreed with the object of conspiracy in the meeting held at Hotel Taj Mahal and performed several overt acts pursuant to the said agreement;
(iv) He associated himself with Tiger Memon (AA) and on his instructions with Anwar (AA).
(v) He was seen taking instructions and being in association with Anwar (AA) by several co-conspirators.
(vi) In his presence, detonators were fitted in the suitcases filled with RDX.
(vii) He planted one such suitcase laden with RDX in Room No. 3078 of Hotel Centaur, Juhu which exploded injuring 3 persons and causing damage to the property to the tune of Rs.2.10 crores;
(viii) He parked a scooter laden with RDX in front of the shop of DP Jewellers, Zaveri Bazaar;
(ix) He threw the keys of the room on the roof of a Footwear shop where he hid the clothes he was wearing at the time of commission of offence and also the keys of the scooter which he had parked at Zaveri Bazaar to avoid detection by police; and
(x) He went to his friend Md. Farooq Mohammed Yusuf Pawale (A-16) and told him everything who, in turn, supported him by saying that Allah would help him as he has done this for his community.
300. It is contended on behalf of the appellant (A-44) that no TIP was conducted in reality. It is pointed out by the prosecution that in the instant case, after the arrest of the appellant, identification parade was conducted on 04.06.1993 by Sharad S. Vichare, Special Executive Magistrate (PW-459) wherein PWs-27 and 26 identified the appellant as the person who had parked the scooter filled with RDX at Zaveri Bazaar. It is further submitted that on 07.06.1993, TIP was conducted by Vaman D. Sapre, Special Executive Magistrate (PW-249) wherein PWs-17 and 18 identified the appellant as the person who had visited the Hotel Centaur, Juhu and planted the suitcase in Room No. 3078 of the Hotel. It is further submitted that the said parade was duly conducted in the presence of panch witnesses and memorandum panchnamas were also prepared for the same.
301. It is further contended on behalf of the appellant (A-44) that Nandkumar Anant Chaugule (PW-444), an officer of BDDS, forcibly opened the lock of the dickey so the question of opening the
dickey with the keys recovered by PW-454 from the roof of the footwear shop does not arise.
302. Further, the prosecution submitted that the appellant (A-44), after his arrest on 18.05.1993, made a disclosure statement on 19.05.1993 and led the police party to Kwality Footwear shop at Khambekar street, and thereafter, he took the keys from its roof and further led the police party to Room No. 12 of the building opposite the shop. It is further stated that the appellant then opened the lock of the room with the same keys and went inside the room and two keys of Bajaj Scooter and other articles were recovered from a cupboard. Thereafter, the said keys were handed over to the IO who gave the same to PW-547. In order to complete the link, PW-547 called Vijay Ramji Wala (PW-454) who is a Supervisor at M/s Vasan Automobiles to check whether the keys were of the same scooter which was parked by the appellant at Zaveri Bazaar. Thereafter, PW-454 inserted the keys in all the three locks of the scooter and the same tallied with the locks. Thus it was proved that the keys recovered at the instance of the appellant belonged to the scooter laden with RDX recovered from Zaveri Bazaar.
303. It is also contended on behalf of the appellant (A-44) that the handwriting in which the booking was made in the hotel was not confirmed during investigation. We are unable to accept the contention raised since on perusal of the entire evidence as produced by the prosecution, it is established that the appellant planted the suitcase laden with RDX in Room No. 3078 of Hotel Centaur, Juhu. We are satisfied that sufficient evidence has been brought on record by the prosecution to show that the said room was booked by the conspirators in a fake name for which payment was also deposited in advance.
304. It is further contended by the appellant that PW-2 (Approver) has not named the appellant in his deposition. The prosecution pointed out that this does not have any bearing on the prosecution case.
305. We are satisfied that the prosecution has produced sufficient evidence against the appellant (A-44) to bring home the charges framed against him.
******************
