Muzammil Umar Kadri (A-25) Vs. The State of Maharashtra through CBI-STF, Mumbai
EmailAppeal: Criminal Appeal No. 1440 of 2007
And
The State of Maharashtra through CBI-STF, Mumbai v. Muzammil Umar Kadri (A-25)
Criminal Appeal No. 1028 of 2012
And
The State of Maharashtra through CBI-STF, Mumbai v. Muzammil Umar Kadri (A-25)
Criminal Appeal No. 1028 of 2012
Petitioner: Muzammil Umar Kadri (A-25)
Respondent: The State of Maharashtra through CBI-STF, Mumbai
Apeal: Criminal Appeal No. 1440 of 2007
And
The State of Maharashtra through CBI-STF, Mumbai v. Muzammil Umar Kadri (A-25)
Criminal Appeal No. 1028 of 2012
And
The State of Maharashtra through CBI-STF, Mumbai v. Muzammil Umar Kadri (A-25)
Criminal Appeal No. 1028 of 2012
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Role and involvement of accused Muzammil Umar (A25) Charges of conspiracy, murder, hurt, mischief and possession and use of fire-arms etc. – Evidence Appreciation His own confession Plea that he was forced to make confession Record showing that all legal and necessary formalities were completely followed. Held that recording officer has satisfied himself about voluntary nature of confession.
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Role and involvement of accused Muzammil Umar (A25) Charges of conspiracy, murder, hurt, mischief and possession and use of fire-arms etc. – Evidence Appreciation His own confession Plea that he was forced to make confession Record showing that all legal and necessary formalities were completely followed. Held that recording officer has satisfied himself about voluntary nature of confession.
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Role and involvement of accused – Charges of conspiracy, murder, hurt mischief and possession and use of fire-arms etc. – Evidence Appreciation His own confession Statement showing certain over-lapping and corrections Absence of explanation If such statement cannot be used against the maker. Held that accused had accepted what was recorded as true and acceptable, hence no force in contention. (Para 134)
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Involvement of accused Confessional statement Recording as per law and rules which were strictly complied with – Retraction of such confession – Retraction after about 6 months No explanation for not retracting immediately Appeared several times before magistrate / senior officer. Held that confession was voluntary. (Paras 134, 137)
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872 Sections 3, 27 Evidence Appreciation Confession by accused Panchnama with regard to recoveries at the instance of accused Out of 2 panch witnesses, only one examined Witness taken at distance of 250 Kms, from where arms and ammunition recovered – Some discrepancy in signatures of panch witnesses Storing and possession of arms at instance of Tiger Memon. Held that discrepancy is not glaring. The confessional statement is voluntary, without any pressure or coercion. (Para 135-137)
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Role and involvement of accused Charges of conspiracy, murder etc. – Evidence – Appreciation – Apart from his own confession, confession of co-accused namely, Dawood (A14), Khalil Ahmad (A42), Sujjad Alam (A61) All such statements showing his presence at the time of unloading of arms and ammunition, a part of which kept in his house Handed over some rifles and ammunition to co-accused, at instance of Tiger He was also present at the time of unloading of some bags from jeep which had rifles and magazine, which he took to his residence. Held that involvement of accused (A 25) is duly established.
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Involvement of accused (A25) Evidence – Appreciation – Confessional Statement of accused and co-accused, corroborated by other PWs Panch witnesses proving recovery of AK 56 rifles, empty magazines and their seizure. Held that his role is established and he has been rightly convicted for the charges levelled against him.
Held:
Except the appellant, the recording officer (PW-492) asked all the persons to leave the Chamber and there was no one who could hear and see the proceedings of the same. Thereafter, PW-492 apprised about himself and also ascertained whether he has any complaint against the police and also informed him that he is not bound to make a statement and if such a statement is made, the same can be used against him. He also ascertained whether any police official or any other person threatened him to make a statement etc. After apprising all the formalities and after satisfying himself that the accused is willing to make a statement voluntarily, he directed the officer concerned for production of the accused on 19.04.1993 after expiry of 48 hours. It is further seen that he was produced on 20.04.1993 by API Gaikwad. Again, after putting several questions to ascertain his willingness and genuineness, PW-492 recorded his statement. Though learned counsel for the appellant submitted that he was forced to make such a statement, a perusal of the entire proceedings clearly show that the officer, who recorded the confession, followed the procedure strictly and recorded his statement after satisfying himself that the accused is giving confession voluntarily without any pressure from any corner. (Para 132)
Apart from his own confession, the involvement of the appellant (A-25) has also been disclosed in the confessional statements of three other co-accused. (Para 138)
Statement of A-14 makes clear the relationship of A-25 with Tiger and his men and his participation in landing and transportation of arms as well as keeping of arms in his house as directed by Tiger and taking of arms from his house. (Para 138.2)
Confessional statement of A-42 reveals that on the night of 03.03.1993, the appellant, alongwith others, was sitting in the truck and after reaching Shekhadi, the smuggled material was loaded in the said truck. (Para 138.3)
Confessional statement of A-61 reveals that appellant was the man of Tiger and was present at the residence of A-42 in the evening of 20.01.1993. Shafi was also present there and they were unloading some goods from a gunny bag in a jeep. At that time, Sarfaraj (Dawood Taklyas son) was also present. After opening the gunny bags, A-61 saw 16 rifles and 32 magazines in it. (Para 138.4)
A perusal of the confessional statements of all the above three accused persons, namely, A-14, A-42 and A-61 establish the fact that it corroborates with the confessional statement of A-25 in material particulars. The involvement of the appellant is established inasmuch as:-
(i) The appellant kept 16 rifles and 32 cassettes at his residence at the instance of Shafi.
(ii) The appellant participated and assisted in both the landings of arms and ammunitions at Shekhadi.
(iii) The appellant was also involved in the transportation of smuggled consignment of weapons from Worli to Waghani Tower.
(iv) On 09.02.1993, A-14 had come to his house to take 3 rifles and 6 magazines at the behest of Tiger Memon. (Para 139)
Held
The depositions of PW-45 and PW-596, corroborate with the confession of the appellant and those of the 3 co-accused persons mentioned above and unmistakably establish the possession of the contraband material by the appellant within a notified area. (Para 141)
Apart from the evidence of Police Inspector, i.e., PW-596, PW-588, PW- 605 and PW-606, the abovesaid confessional statements of A-14, A-42 and A- 61 prove the prosecution case with reference to the role of A-25 in handling and transporting arms and ammunitions from Shekhadi port to various places and it is also clear that arms were stored in his house and taken to the place as directed by the Tiger. (Para 143)
The corroborative material contained in the confession of A-25 i.e. his involvement in landing at Shekhadi and its transportation, for which he was charged with, has also been proved in the confessions of A-14, A-42 and A-61. Considering the role played by him i.e., he was possessing such a large number of arms and ammunitions after the Shekhadi operation was over and was holding the same for a considerable period, the same also denotes that he was a man of close confidence of prime accused persons. (Para 145)
The appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the offences for which he has been charged and we affirm the same. (Para 146)
The appellant neither dissociated himself nor resisted from participating in the landings at Shekhadi or transportation of contraband material to Waghani Tower nor did he inform the same to the police authorities or took any steps for the same. This is sufficient to show that he was responsible for the blasts in Bombay and he was very well aware of its consequences. (Para 150)
JUDGEMENT:
JUDGEMENT
124. Heard Mr. Mushtaq Ahmad, learned counsel for the appellant (A-25) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the CBI.
125. Criminal Appeal No. 1440 of 2007 is directed against the final judgment and order of conviction and sentence dated 16.10.2006 and 30.05.2007 respectively, whereby the appellant (A-25) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993. Criminal Appeal No. 1028 of 2012 is filed by the CBI against the acquittal of A-25 insofar as the charge framed at head firstly, i.e., Conspiracy. For convenience, henceforth, we will refer accused (A-25) as the appellant.
Charges:
126. A common charge of conspiracy was framed against all the co-conspirators
including the appellant (A-25). The material part of the said charge is reproduced herein:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, 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 IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (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.
126.1 In addition to the aforesaid principal charge of conspiracy, the appellant (A-25) was also charged on other counts which are summarized as under:
At head Secondly; He committed an offence punishable under Section 3(3) of TADA by participating in the landing and transportation of smuggled arms, ammunitions and explosives at Shekhadi for the purpose of committing terrorist acts.
At head Thirdly; In or around January 1993, with intent to aid terrorists, he possessed 16 AK-56 rifles and 26 magazines in contravention of the provisions of the Arms Act, 1959 and the Arms Rules, 1962 and thereby committed an offence punishable under Section 6 of TADA.
At head Fourthly; By possessing the aforementioned rifles and magazines, he committed an offence punishable under Section 3 and Section 7 read with Sections 25(1-A) and 25 (1-B)(a) of the Arms Act, 1959.
Conviction & Sentence
127. The appellant has been convicted and sentenced for the above said charges as under:
(i) The appellant has been convicted for the offence of conspiracy under Section 3(3) of TADA read with Section 120-B of IPC read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge firstly)
(ii) The appellant has also been convicted for the offence under Section 3(3) of TADA and sentenced to RI for 10 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge secondly)
(ii) The appellant has also been convicted for the offence under Section 6 of TADA and sentenced to RI for 14 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge thirdly)
(iii). The appellant has also been convicted for the offences punishable under Section 3 and Section 7 read with Sections 25(1-A) and 25(1-B)(a) of the Arms Act, 1959 but no separate sentence was awarded on the said count. (charge fourthly)
128. Mr. Mushtaq Ahmad, learned counsel for the appellant (A-25), after taking us through the relevant materials relied on by the prosecution, submitted that firstly his own confession is not voluntary and not genuine and, in any event, he retracted the same, hence, the conviction based on his confession is not sustainable. He also submitted that though the prosecution has relied on confessional statement of co-accused, particularly, Dawood @ Dawood Taklya Mohd. Phanse @ Phanasmiyan (A-14), Khalil Ahmed Syed Ali Nazir (A-42) and Sujjad Alam @ Iqbal Abdul Hakim Nazir (A-61), they have not attributed to any specific role of the appellant A-25. He further submitted that the recoveries alleged to have been made by the prosecution are not acceptable and, in any event, it contained several infirmities.
129. Learned counsel appearing for the CBI refuted all the above contentions and after basing reliance on oral and documentary evidence submitted that the prosecution has established the charges leveled against the appellant and the Designated Court has rightly convicted and sentenced him for life.
Evidence
130. The evidence against the appellant (A-25) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional Statement of Muzammil Umar Kadri (A-25)
131. The prosecution projected that the involvement of the appellant (A-25) in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 17.04.1993 (14:00 hrs.) and 20.04.1993 (12:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay.
132. It is seen that except the appellant, the recording officer (PW-492) asked all the persons to leave the Chamber and there was no one who could hear and see the proceedings of the same. Thereafter, PW-492 apprised about himself and also ascertained whether he has any complaint against the police and also informed him that he is not bound to make a statement and if such a statement is made, the same can be used against him. He also ascertained whether any police official or any other person threatened him to make a statement etc. After apprising all the formalities and after satisfying himself that the accused is willing to make a statement voluntarily, he directed the officer concerned for production of the accused on 19.04.1993 after expiry of 48 hours. It is further seen that he was produced on 20.04.1993 by API Gaikwad. Again, after putting several questions to ascertain his willingness and genuineness, PW-492 recorded his statement. Though learned counsel for the appellant submitted that he was forced to make such a statement, a perusal of the entire proceedings clearly show that the officer, who recorded the confession, followed the procedure strictly and recorded his statement after satisfying himself that the accused is giving confession voluntarily without any pressure from any corner.
133. We were taken through the entire confession of the appellant. The confession of appellant (A-25) is summarized below:-
(i) At the relevant time, he was an auto-rickshaw driver.
(ii) He was a resident of Mhasla and became acquainted with Dawood Taklya (A-14) who also lived in the same locality. He knew that Taklya was involved in the landing of smuggled goods.
(iii) He also knew that Rahim Laundrywala (deceased accused) and Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) were the partners of Dawood Taklya in the aforesaid activities.
(iv) In or around March-April 1992, he was taken by Dawood Taklya to Shekhadi for unloading of smuggled silver and its transportation to a Tower, at which time, he saw Tiger Memon, Anwar and Shafi (AA). The silver was smuggled by Tiger Memon.
(v) He was paid Rs. 1,200/- by Dawood Taklya for the said assignment.
(vi) Again, in August, 1992, he was taken by Dawood Taklya to Shekhadi for unloading of smuggled silver and its transportation to Waghani Tower, at which time, Rahim Laundrywala and A-17 were also present. He was paid Rs. 1,500/- by Dawood Taklya. The silver was smuggled by Tiger Memon.
(vii) In January, 1993, he was called at the residence of Khalil Ahmed Sayed Ali Nasir (A-42) by Rahim Laundrywala and Shafi and was asked to keep 16 rifles and 32 cassettes at his residence, which he kept with him.
(viii) On 03.02.1993, he escorted the truck carrying the smuggled consignment from Borli to Waghani Tower where he saw Tiger Memon, Dawood Taklya, A-17, Anwar, Shafi and others.
(ix) On 07.02.1993, Dawood had taken the appellant to Shekhadi in the rickshaw of Sujjad Alam @ Iqbal Abdul Hakim Nazir (A-61) since the appellant had already sold his rickshaw.
(x) On 07.02.1993, at about 11.30 a.m., Dawood Taklya had come to his house in the rickshaw of A-61 and took 3 rifles and 6 magazines out of the 16 rifles and 32 magazines which were kept at his house and told that the message was received from Tiger Memon regarding the same.
(xi) Thereafter, Dawood Taklya also took him in the rickshaw of A-61 to Shekhadi and they reached Shekhadi at about 9.00 p.m.
(xii) Thereafter, Sujjad Alam was told to go to the Tower in the rickshaw and the appellant was asked to get down at Mehendadi.
134. Mr. Mushtaq Ahmad, learned counsel for the appellant, by drawing our attention to Exh. 1654 (Hindi version of his confession) pointed out that there are certain overlappings and corrections, hence, in the absence of any explanation, the same cannot be used against him. In the light of the said contention, we have carefully verified the translated version in English. We find no substance in the said contention. On the other hand, at several places, A-25 conveyed his desire to make a statement and at the end he informed the officer, who recorded the statement, that he understood everything and the entire recorded statement is true and acceptable. In such circumstances, we are unable to accept the stand taken by the appellant. However, though the very same appellant had retracted his confession but the same was done only on 03.10.1993, i.e., after a gap of nearly about 6 months. In the absence of any proper explanation for not retracting immediately after making such a statement, even though he appeared before the Magistrate/senior officers on several occasions, the fact remains that he had not retracted. Even otherwise, as observed in the earlier part of our judgment, a perusal of the retracted statement shows that the same was prepared by someone and he merely signed the same.
135. The panchnama dated 26.03.1993 was prepared in Marathi with regard to recoveries made from A-25. The English translation of the same was also placed on record. Learned counsel for the appellant has pointed out that out of 2 panch witnesses, namely, Mr. Walmik Shankar Gite and Mr. Laxman Loku Karkera, the prosecution has examined Mr. Walmik Shankar Gite only. According to the counsel, he is a resident of Bombay and he was taken by the police to a place which is at a distance of 250 km. The said Panchnama recorded details of arms and ammunitions seized from the house of the appellant. Learned counsel has also pointed out some discrepancy in the signature of panch witnesses. We also verified the xerox copy of the Panchnama dated 26.03.1993 and we do not find any glaring discrepancy as pointed out by the counsel.
136. A perusal of the above confession of A-25 shows that he was willingly involved in the landing of smuggled arms and ammunitions at Shekhadi and that he also possessed and stored arms and ammunitions at the instructions of Tiger Memon.
137. We are also satisfied that the A-25 has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 of TADA and the rules framed thereunder.
Confessional Statements of co-accused
138. Apart from his own confession, the involvement of the appellant (A-25) has also been disclosed in the confessional statements of three other co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-25) are summarized hereinbelow:
Confessional Statement of Dawood @ Dawood Taklya Mohd. Phanse @ Phanasmiyan (A-14)
138.1 Confessional statement of A-14 under Section 15 of TADA was recorded on 15.04.1993 (17:55 hrs.) and 17.04.1993 (19:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) His son, Sarfaraj informed him that Shafi had kept the weapons at the appellants house.
(ii) The appellant was present at the time of the first landing at Shekhadi.
(iii) The appellant alongwith Iqbal and A-42 patrolled the car in which Tiger and others (including A-14) were travelling when they were on their way to Waghani Tower alongwith the truck which was loaded with arms and ammunitions that had landed at Shekhadi.
(iv) The appellant was present when the arms and ammunitions were unloaded from the truck at Waghani Tower.
(v) At the instance of Tiger and his men, he went to the residence of the appellant to get 3 rifles and 6 magazines which were kept at his house and later on gave the same to Tiger.
(vi) The appellant was present at the time of the second landing at Shekhadi and after completion of the landing operation, A-14 returned home alongwith the appellant and others.
(vii) A-14 paid Rs. 4,000/- to the appellant for the work done during the landing operation.
138.2 The above statement of A-14 makes clear the relationship of A-25 with Tiger and his men and his participation in landing and transportation of arms as well as keeping of arms in his house as directed by Tiger and taking of arms from his house.
Confessional Statement of Khalil Ahmed Syed Ali Nazir (A-42)
138.3 Confessional statement of A-42 under Section 15 of TADA was recorded on 16.04.1993 (20:30 hrs.) and 19.04.1993 (21:00 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said confession reveals that on the night of 03.03.1993, the appellant, alongwith others, was sitting in the truck and after reaching Shekhadi, the smuggled material was loaded in the said truck.
Confessional Statement of Sujjad Alam @ Iqbal Abdul Hakim Nazir (A-61)
138.4 Confessional statement of A-61 under Section 15 of TADA was recorded on 19.04.1993 (11:40 hrs.) and 21.04.1993 (10:50 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant was the man of Tiger and was present at the residence of A-42 in the evening of 20.01.1993. Shafi was also present there and they were unloading some goods from a gunny bag in a jeep. At that time, Sarfaraj (Dawood Taklyas son) was also present. After opening the gunny bags, A-61 saw 16 rifles and 32 magazines in it.
(ii) Thereafter, A-61, A-42 and the appellant took the above rifles and magazines in an auto-rickshaw to the his (A-25) residence.
(iii) The appellant was present at Waghani Tower during the first landing at Shekhadi.
(iv) On 09.02.1993, A-61 alongwith A-14 and A-42 went to the appellants residence. A-14 told the appellant to hand over 3 rifles and 6 cassettes to him. Accordingly, the appellant handed over the same in a gunny bag which was later on collected by Tiger Memon from Lone Phata.
(v) The appellant also accompanied A-61 and others while going to Shekhadi for the second landing.
139. A perusal of the confessional statements of all the above three accused persons, namely, A-14, A-42 and A-61 establish the fact that it corroborates with the confessional statement of A-25 in material particulars. The involvement of the appellant is established inasmuch as:-
(i) The appellant kept 16 rifles and 32 cassettes at his residence at the instance of Shafi.
(ii) The appellant participated and assisted in both the landings of arms and ammunitions at Shekhadi.
(iii) The appellant was also involved in the transportation of smuggled consignment of weapons from Worli to Waghani Tower.
(iv) On 09.02.1993, A-14 had come to his house to take 3 rifles and 6 magazines at the behest of Tiger Memon.
Deposition of Prosecution Witnesses:
140. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Laxman Karkera (PW-45)
140.1 PW-45 revealed as under:
(i) On 26.03.1993, he acted as a panch witness and, on the said day, the appellant led the panchas and the police to his (A-25) house near Urdu school in village Mehendadi .
(ii) While conducting a search in his house, the police found 3 gunny bags that were buried three feet deep in a half constructed bathroom. When the gunny bags were opened by the police, the same were found to be containing 13 AK-56 rifles and 26 empty magazines of AK-56 rifles. The rifles and magazines were examined by the police and the magazines could be fitted into the cavity of the said rifles.
(iii) The Police then took charge of the rifles and magazines and the labels of signatures of PW-45 and others were pasted on each AK-56 rifle and magazine. Then, the same were wrapped in a paper and were labeled and sealed and signatures of PW-45 and others were obtained on the same. The police also took charge of the 3 gunny bags. All the above events were recorded by one police officer in a Panchnama and the same was signed by PI Pawar, PW-45 and the co-panch. The panchanama Exh. 158 was read over to PW-45 and the co-panch and was found to be correctly drawn.
(iv) He has correctly identified the Panchanama. He has also correctly identified PI Pawar as the one who had signed the said panchanama and PSI Nerlekar as the one who had written the said panchanama.
(v) The rifles, magazines and 3 gunny bags seized by the police, as stated above, were duly identified by him in the court.
Deposition of HB Pawar (PW-596)
140.2 PW-596 revealed as under:
(i) As instructed by DCP Shri Rakesh Maria, he went alongwith other police officers and staff to Mhasla on 26.03.1993.
(ii) After receiving information from a person, A-14 was arrested by him in Buddha Wada locality of Mhasla.
(iii) After interrogation, A-14 led PSI Rane, PW-596 and others to Mehendadi village and they arrested the appellant and A-42 from the chowk of the said village.
(iv) Thereafter, he interrogated both the said accused and decided to search their houses. One Shri Laxman Karkera (PW-45) agreed to act as a panch witness.
(v) Thereafter, the panch witnesses and the police party along with the appellant went to his house near an Urdu School of the said village. The said house was shown to them by the appellant himself.
(vi) The search of the said house was taken in the presence of the panch witnesses. 3 gunny bags were found to be concealed about 3 feet deep under the tiles of a bathroom.
(vii) The said 3 gunny bags were opened and were found to be containing 13 AK-56 rifles and 26 empty magazines of AK-56 rifles. Thereafter, each of the AK-56 rifles was wrapped in a brown paper and the said packet was tied by means of a string and labels of signatures of panch witnesses and his signature was affixed on each of the packet and the same were also sealed by using the lac seal and in the same manner the 26 empty magazines and the said 3 gunny bags were also wrapped in a brown paper and labelled and sealed. He recorded the description of the rifles and magazines in a panchanama by dictating the matter to PSI Nerlekar. He also took charge of the rifles, magazines and gunny bags.
(viii) The panchanama was read over to the panch witnesses and their signatures were obtained to ensure its correctness. He also countersigned the same.
141. The above depositions of PW-45 and PW-596, corroborate with the confession of the appellant and those of the 3 co-accused persons mentioned above and unmistakably establish the possession of the contraband material by the appellant within a notified area. Even lengthy cross-examination of the above witnesses has failed to destroy their testimonies.
142. The recovered articles were sent to FSL for opinion by Waman Kulkarni (PW-662) vide Exh. 2440 and a positive FSL Report Exh. 2440-A was received by the Police.
143. Apart from the evidence of Police Inspector, i.e., PW-596, PW-588, PW- 605 and PW-606, the abovesaid confessional statements of A-14, A-42 and A- 61 prove the prosecution case with reference to the role of A-25 in handling and transporting arms and ammunitions from Shekhadi port to various places and it is also clear that arms were stored in his house and taken to the place as directed by the Tiger.
144. We have already highlighted the Panchnama containing all the details of arms and ammunitions collected from the residence of A-25. PW-45 explained all those details and he admitted the said Panchnama as well as his signature therein. Though A-25 was represented by a counsel before the trial Court, there was no cross-examination at all.
145. Taking note of all the above materials, the Designated Court, after analyzing the same, came to the conclusion that the material contained in the confession of A-25 clearly reveals his involvement in landing at Shekhadi and its transportation. The corroborative material contained in the confession of A-25 i.e. his involvement in landing at Shekhadi and its transportation, for which he was charged with, has also been proved in the confessions of A-14, A-42 and A-61. Considering the role played by him i.e., he was possessing such a large number of arms and ammunitions after the Shekhadi operation was over and was holding the same for a considerable period, the same also denotes that he was a man of close confidence of prime accused persons. The Designated Court also rightly concluded that the act committed by him was for furthering the object of conspiracy and he himself having committed the same during the 1st half of February, 1993 i.e. much prior to even Tiger Memon fixing the target for committing serial bomb blasts in Bombay and is guilty for the offence of conspiracy to commit terrorist acts punishable under Section 3(3) of TADA.
146. In view of the evidence discussed above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the offences for which he has been charged and we affirm the same.
147. As rightly pointed out by the prosecution, the facts and events stated by the appellant in his own confession are duly corroborated by the confessions of other co-accused, thereby clearly revealing his involvement in the landings at Shekhadi and that he was unauthorisedly in possession of the contraband material. Therefore, the appellant is guilty for the offences for which he has been charged from head firstly to fourthly.
Appeal filed by the State of Maharashtra through CBI
Criminal Appeal No. 1028 of 2012
148. Insofar as the appeal filed by the CBI against acquittal of the appellant (A-25) for the charge mentioned at head firstly, viz., conspiracy is concerned, in view of the fact that the appellant (A-25) has already been convicted for the same and sentenced to RI for life, learned senior counsel for the CBI has not pressed the appeal before this Court, hence, we are of the view that there is no need to consider this appeal in view of the reason appended above and therefore, the appeal is liable to be dismissed.
Sentence:
149. Regarding sentence, the prosecution submitted that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 17.10.2006 (Exh.2984) in which he prayed that the following factors, amongst others, may be considered while determining his sentence :
i) He is the sole bread winner of his family comprising of his wife and three small children; and
ii) His wife is suffering from a mental ailment.
149.1 With respect to the above contentions regarding quantum of sentence, the prosecution submitted that the appellant was in possession and storage of 13 AK-56 rifles and 26 magazines for a considerable period of time.
150. From the materials, it is clear that the appellant neither dissociated himself nor resisted from participating in the landings at Shekhadi or transportation of contraband material to Waghani Tower nor did he inform the same to the police authorities or took any steps for the same. This is sufficient to show that he was responsible for the blasts in Bombay and he was very well aware of its consequences.
151. In view of the above, we are of the view that the sentence awarded by the Designated Court to the appellant is justified and the same is confirmed. Consequently, the appeal is dismissed.
124. Heard Mr. Mushtaq Ahmad, learned counsel for the appellant (A-25) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the CBI.
125. Criminal Appeal No. 1440 of 2007 is directed against the final judgment and order of conviction and sentence dated 16.10.2006 and 30.05.2007 respectively, whereby the appellant (A-25) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993. Criminal Appeal No. 1028 of 2012 is filed by the CBI against the acquittal of A-25 insofar as the charge framed at head firstly, i.e., Conspiracy. For convenience, henceforth, we will refer accused (A-25) as the appellant.
Charges:
126. A common charge of conspiracy was framed against all the co-conspirators
including the appellant (A-25). The material part of the said charge is reproduced herein:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, 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 IPC read with Sections 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (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.
126.1 In addition to the aforesaid principal charge of conspiracy, the appellant (A-25) was also charged on other counts which are summarized as under:
At head Secondly; He committed an offence punishable under Section 3(3) of TADA by participating in the landing and transportation of smuggled arms, ammunitions and explosives at Shekhadi for the purpose of committing terrorist acts.
At head Thirdly; In or around January 1993, with intent to aid terrorists, he possessed 16 AK-56 rifles and 26 magazines in contravention of the provisions of the Arms Act, 1959 and the Arms Rules, 1962 and thereby committed an offence punishable under Section 6 of TADA.
At head Fourthly; By possessing the aforementioned rifles and magazines, he committed an offence punishable under Section 3 and Section 7 read with Sections 25(1-A) and 25 (1-B)(a) of the Arms Act, 1959.
Conviction & Sentence
127. The appellant has been convicted and sentenced for the above said charges as under:
(i) The appellant has been convicted for the offence of conspiracy under Section 3(3) of TADA read with Section 120-B of IPC read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge firstly)
(ii) The appellant has also been convicted for the offence under Section 3(3) of TADA and sentenced to RI for 10 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge secondly)
(ii) The appellant has also been convicted for the offence under Section 6 of TADA and sentenced to RI for 14 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge thirdly)
(iii). The appellant has also been convicted for the offences punishable under Section 3 and Section 7 read with Sections 25(1-A) and 25(1-B)(a) of the Arms Act, 1959 but no separate sentence was awarded on the said count. (charge fourthly)
128. Mr. Mushtaq Ahmad, learned counsel for the appellant (A-25), after taking us through the relevant materials relied on by the prosecution, submitted that firstly his own confession is not voluntary and not genuine and, in any event, he retracted the same, hence, the conviction based on his confession is not sustainable. He also submitted that though the prosecution has relied on confessional statement of co-accused, particularly, Dawood @ Dawood Taklya Mohd. Phanse @ Phanasmiyan (A-14), Khalil Ahmed Syed Ali Nazir (A-42) and Sujjad Alam @ Iqbal Abdul Hakim Nazir (A-61), they have not attributed to any specific role of the appellant A-25. He further submitted that the recoveries alleged to have been made by the prosecution are not acceptable and, in any event, it contained several infirmities.
129. Learned counsel appearing for the CBI refuted all the above contentions and after basing reliance on oral and documentary evidence submitted that the prosecution has established the charges leveled against the appellant and the Designated Court has rightly convicted and sentenced him for life.
Evidence
130. The evidence against the appellant (A-25) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional Statement of Muzammil Umar Kadri (A-25)
131. The prosecution projected that the involvement of the appellant (A-25) in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 17.04.1993 (14:00 hrs.) and 20.04.1993 (12:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay.
132. It is seen that except the appellant, the recording officer (PW-492) asked all the persons to leave the Chamber and there was no one who could hear and see the proceedings of the same. Thereafter, PW-492 apprised about himself and also ascertained whether he has any complaint against the police and also informed him that he is not bound to make a statement and if such a statement is made, the same can be used against him. He also ascertained whether any police official or any other person threatened him to make a statement etc. After apprising all the formalities and after satisfying himself that the accused is willing to make a statement voluntarily, he directed the officer concerned for production of the accused on 19.04.1993 after expiry of 48 hours. It is further seen that he was produced on 20.04.1993 by API Gaikwad. Again, after putting several questions to ascertain his willingness and genuineness, PW-492 recorded his statement. Though learned counsel for the appellant submitted that he was forced to make such a statement, a perusal of the entire proceedings clearly show that the officer, who recorded the confession, followed the procedure strictly and recorded his statement after satisfying himself that the accused is giving confession voluntarily without any pressure from any corner.
133. We were taken through the entire confession of the appellant. The confession of appellant (A-25) is summarized below:-
(i) At the relevant time, he was an auto-rickshaw driver.
(ii) He was a resident of Mhasla and became acquainted with Dawood Taklya (A-14) who also lived in the same locality. He knew that Taklya was involved in the landing of smuggled goods.
(iii) He also knew that Rahim Laundrywala (deceased accused) and Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) were the partners of Dawood Taklya in the aforesaid activities.
(iv) In or around March-April 1992, he was taken by Dawood Taklya to Shekhadi for unloading of smuggled silver and its transportation to a Tower, at which time, he saw Tiger Memon, Anwar and Shafi (AA). The silver was smuggled by Tiger Memon.
(v) He was paid Rs. 1,200/- by Dawood Taklya for the said assignment.
(vi) Again, in August, 1992, he was taken by Dawood Taklya to Shekhadi for unloading of smuggled silver and its transportation to Waghani Tower, at which time, Rahim Laundrywala and A-17 were also present. He was paid Rs. 1,500/- by Dawood Taklya. The silver was smuggled by Tiger Memon.
(vii) In January, 1993, he was called at the residence of Khalil Ahmed Sayed Ali Nasir (A-42) by Rahim Laundrywala and Shafi and was asked to keep 16 rifles and 32 cassettes at his residence, which he kept with him.
(viii) On 03.02.1993, he escorted the truck carrying the smuggled consignment from Borli to Waghani Tower where he saw Tiger Memon, Dawood Taklya, A-17, Anwar, Shafi and others.
(ix) On 07.02.1993, Dawood had taken the appellant to Shekhadi in the rickshaw of Sujjad Alam @ Iqbal Abdul Hakim Nazir (A-61) since the appellant had already sold his rickshaw.
(x) On 07.02.1993, at about 11.30 a.m., Dawood Taklya had come to his house in the rickshaw of A-61 and took 3 rifles and 6 magazines out of the 16 rifles and 32 magazines which were kept at his house and told that the message was received from Tiger Memon regarding the same.
(xi) Thereafter, Dawood Taklya also took him in the rickshaw of A-61 to Shekhadi and they reached Shekhadi at about 9.00 p.m.
(xii) Thereafter, Sujjad Alam was told to go to the Tower in the rickshaw and the appellant was asked to get down at Mehendadi.
134. Mr. Mushtaq Ahmad, learned counsel for the appellant, by drawing our attention to Exh. 1654 (Hindi version of his confession) pointed out that there are certain overlappings and corrections, hence, in the absence of any explanation, the same cannot be used against him. In the light of the said contention, we have carefully verified the translated version in English. We find no substance in the said contention. On the other hand, at several places, A-25 conveyed his desire to make a statement and at the end he informed the officer, who recorded the statement, that he understood everything and the entire recorded statement is true and acceptable. In such circumstances, we are unable to accept the stand taken by the appellant. However, though the very same appellant had retracted his confession but the same was done only on 03.10.1993, i.e., after a gap of nearly about 6 months. In the absence of any proper explanation for not retracting immediately after making such a statement, even though he appeared before the Magistrate/senior officers on several occasions, the fact remains that he had not retracted. Even otherwise, as observed in the earlier part of our judgment, a perusal of the retracted statement shows that the same was prepared by someone and he merely signed the same.
135. The panchnama dated 26.03.1993 was prepared in Marathi with regard to recoveries made from A-25. The English translation of the same was also placed on record. Learned counsel for the appellant has pointed out that out of 2 panch witnesses, namely, Mr. Walmik Shankar Gite and Mr. Laxman Loku Karkera, the prosecution has examined Mr. Walmik Shankar Gite only. According to the counsel, he is a resident of Bombay and he was taken by the police to a place which is at a distance of 250 km. The said Panchnama recorded details of arms and ammunitions seized from the house of the appellant. Learned counsel has also pointed out some discrepancy in the signature of panch witnesses. We also verified the xerox copy of the Panchnama dated 26.03.1993 and we do not find any glaring discrepancy as pointed out by the counsel.
136. A perusal of the above confession of A-25 shows that he was willingly involved in the landing of smuggled arms and ammunitions at Shekhadi and that he also possessed and stored arms and ammunitions at the instructions of Tiger Memon.
137. We are also satisfied that the A-25 has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 of TADA and the rules framed thereunder.
Confessional Statements of co-accused
138. Apart from his own confession, the involvement of the appellant (A-25) has also been disclosed in the confessional statements of three other co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-25) are summarized hereinbelow:
Confessional Statement of Dawood @ Dawood Taklya Mohd. Phanse @ Phanasmiyan (A-14)
138.1 Confessional statement of A-14 under Section 15 of TADA was recorded on 15.04.1993 (17:55 hrs.) and 17.04.1993 (19:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) His son, Sarfaraj informed him that Shafi had kept the weapons at the appellants house.
(ii) The appellant was present at the time of the first landing at Shekhadi.
(iii) The appellant alongwith Iqbal and A-42 patrolled the car in which Tiger and others (including A-14) were travelling when they were on their way to Waghani Tower alongwith the truck which was loaded with arms and ammunitions that had landed at Shekhadi.
(iv) The appellant was present when the arms and ammunitions were unloaded from the truck at Waghani Tower.
(v) At the instance of Tiger and his men, he went to the residence of the appellant to get 3 rifles and 6 magazines which were kept at his house and later on gave the same to Tiger.
(vi) The appellant was present at the time of the second landing at Shekhadi and after completion of the landing operation, A-14 returned home alongwith the appellant and others.
(vii) A-14 paid Rs. 4,000/- to the appellant for the work done during the landing operation.
138.2 The above statement of A-14 makes clear the relationship of A-25 with Tiger and his men and his participation in landing and transportation of arms as well as keeping of arms in his house as directed by Tiger and taking of arms from his house.
Confessional Statement of Khalil Ahmed Syed Ali Nazir (A-42)
138.3 Confessional statement of A-42 under Section 15 of TADA was recorded on 16.04.1993 (20:30 hrs.) and 19.04.1993 (21:00 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said confession reveals that on the night of 03.03.1993, the appellant, alongwith others, was sitting in the truck and after reaching Shekhadi, the smuggled material was loaded in the said truck.
Confessional Statement of Sujjad Alam @ Iqbal Abdul Hakim Nazir (A-61)
138.4 Confessional statement of A-61 under Section 15 of TADA was recorded on 19.04.1993 (11:40 hrs.) and 21.04.1993 (10:50 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant was the man of Tiger and was present at the residence of A-42 in the evening of 20.01.1993. Shafi was also present there and they were unloading some goods from a gunny bag in a jeep. At that time, Sarfaraj (Dawood Taklyas son) was also present. After opening the gunny bags, A-61 saw 16 rifles and 32 magazines in it.
(ii) Thereafter, A-61, A-42 and the appellant took the above rifles and magazines in an auto-rickshaw to the his (A-25) residence.
(iii) The appellant was present at Waghani Tower during the first landing at Shekhadi.
(iv) On 09.02.1993, A-61 alongwith A-14 and A-42 went to the appellants residence. A-14 told the appellant to hand over 3 rifles and 6 cassettes to him. Accordingly, the appellant handed over the same in a gunny bag which was later on collected by Tiger Memon from Lone Phata.
(v) The appellant also accompanied A-61 and others while going to Shekhadi for the second landing.
139. A perusal of the confessional statements of all the above three accused persons, namely, A-14, A-42 and A-61 establish the fact that it corroborates with the confessional statement of A-25 in material particulars. The involvement of the appellant is established inasmuch as:-
(i) The appellant kept 16 rifles and 32 cassettes at his residence at the instance of Shafi.
(ii) The appellant participated and assisted in both the landings of arms and ammunitions at Shekhadi.
(iii) The appellant was also involved in the transportation of smuggled consignment of weapons from Worli to Waghani Tower.
(iv) On 09.02.1993, A-14 had come to his house to take 3 rifles and 6 magazines at the behest of Tiger Memon.
Deposition of Prosecution Witnesses:
140. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Laxman Karkera (PW-45)
140.1 PW-45 revealed as under:
(i) On 26.03.1993, he acted as a panch witness and, on the said day, the appellant led the panchas and the police to his (A-25) house near Urdu school in village Mehendadi .
(ii) While conducting a search in his house, the police found 3 gunny bags that were buried three feet deep in a half constructed bathroom. When the gunny bags were opened by the police, the same were found to be containing 13 AK-56 rifles and 26 empty magazines of AK-56 rifles. The rifles and magazines were examined by the police and the magazines could be fitted into the cavity of the said rifles.
(iii) The Police then took charge of the rifles and magazines and the labels of signatures of PW-45 and others were pasted on each AK-56 rifle and magazine. Then, the same were wrapped in a paper and were labeled and sealed and signatures of PW-45 and others were obtained on the same. The police also took charge of the 3 gunny bags. All the above events were recorded by one police officer in a Panchnama and the same was signed by PI Pawar, PW-45 and the co-panch. The panchanama Exh. 158 was read over to PW-45 and the co-panch and was found to be correctly drawn.
(iv) He has correctly identified the Panchanama. He has also correctly identified PI Pawar as the one who had signed the said panchanama and PSI Nerlekar as the one who had written the said panchanama.
(v) The rifles, magazines and 3 gunny bags seized by the police, as stated above, were duly identified by him in the court.
Deposition of HB Pawar (PW-596)
140.2 PW-596 revealed as under:
(i) As instructed by DCP Shri Rakesh Maria, he went alongwith other police officers and staff to Mhasla on 26.03.1993.
(ii) After receiving information from a person, A-14 was arrested by him in Buddha Wada locality of Mhasla.
(iii) After interrogation, A-14 led PSI Rane, PW-596 and others to Mehendadi village and they arrested the appellant and A-42 from the chowk of the said village.
(iv) Thereafter, he interrogated both the said accused and decided to search their houses. One Shri Laxman Karkera (PW-45) agreed to act as a panch witness.
(v) Thereafter, the panch witnesses and the police party along with the appellant went to his house near an Urdu School of the said village. The said house was shown to them by the appellant himself.
(vi) The search of the said house was taken in the presence of the panch witnesses. 3 gunny bags were found to be concealed about 3 feet deep under the tiles of a bathroom.
(vii) The said 3 gunny bags were opened and were found to be containing 13 AK-56 rifles and 26 empty magazines of AK-56 rifles. Thereafter, each of the AK-56 rifles was wrapped in a brown paper and the said packet was tied by means of a string and labels of signatures of panch witnesses and his signature was affixed on each of the packet and the same were also sealed by using the lac seal and in the same manner the 26 empty magazines and the said 3 gunny bags were also wrapped in a brown paper and labelled and sealed. He recorded the description of the rifles and magazines in a panchanama by dictating the matter to PSI Nerlekar. He also took charge of the rifles, magazines and gunny bags.
(viii) The panchanama was read over to the panch witnesses and their signatures were obtained to ensure its correctness. He also countersigned the same.
141. The above depositions of PW-45 and PW-596, corroborate with the confession of the appellant and those of the 3 co-accused persons mentioned above and unmistakably establish the possession of the contraband material by the appellant within a notified area. Even lengthy cross-examination of the above witnesses has failed to destroy their testimonies.
142. The recovered articles were sent to FSL for opinion by Waman Kulkarni (PW-662) vide Exh. 2440 and a positive FSL Report Exh. 2440-A was received by the Police.
143. Apart from the evidence of Police Inspector, i.e., PW-596, PW-588, PW- 605 and PW-606, the abovesaid confessional statements of A-14, A-42 and A- 61 prove the prosecution case with reference to the role of A-25 in handling and transporting arms and ammunitions from Shekhadi port to various places and it is also clear that arms were stored in his house and taken to the place as directed by the Tiger.
144. We have already highlighted the Panchnama containing all the details of arms and ammunitions collected from the residence of A-25. PW-45 explained all those details and he admitted the said Panchnama as well as his signature therein. Though A-25 was represented by a counsel before the trial Court, there was no cross-examination at all.
145. Taking note of all the above materials, the Designated Court, after analyzing the same, came to the conclusion that the material contained in the confession of A-25 clearly reveals his involvement in landing at Shekhadi and its transportation. The corroborative material contained in the confession of A-25 i.e. his involvement in landing at Shekhadi and its transportation, for which he was charged with, has also been proved in the confessions of A-14, A-42 and A-61. Considering the role played by him i.e., he was possessing such a large number of arms and ammunitions after the Shekhadi operation was over and was holding the same for a considerable period, the same also denotes that he was a man of close confidence of prime accused persons. The Designated Court also rightly concluded that the act committed by him was for furthering the object of conspiracy and he himself having committed the same during the 1st half of February, 1993 i.e. much prior to even Tiger Memon fixing the target for committing serial bomb blasts in Bombay and is guilty for the offence of conspiracy to commit terrorist acts punishable under Section 3(3) of TADA.
146. In view of the evidence discussed above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the offences for which he has been charged and we affirm the same.
147. As rightly pointed out by the prosecution, the facts and events stated by the appellant in his own confession are duly corroborated by the confessions of other co-accused, thereby clearly revealing his involvement in the landings at Shekhadi and that he was unauthorisedly in possession of the contraband material. Therefore, the appellant is guilty for the offences for which he has been charged from head firstly to fourthly.
Appeal filed by the State of Maharashtra through CBI
Criminal Appeal No. 1028 of 2012
148. Insofar as the appeal filed by the CBI against acquittal of the appellant (A-25) for the charge mentioned at head firstly, viz., conspiracy is concerned, in view of the fact that the appellant (A-25) has already been convicted for the same and sentenced to RI for life, learned senior counsel for the CBI has not pressed the appeal before this Court, hence, we are of the view that there is no need to consider this appeal in view of the reason appended above and therefore, the appeal is liable to be dismissed.
Sentence:
149. Regarding sentence, the prosecution submitted that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 17.10.2006 (Exh.2984) in which he prayed that the following factors, amongst others, may be considered while determining his sentence :
i) He is the sole bread winner of his family comprising of his wife and three small children; and
ii) His wife is suffering from a mental ailment.
149.1 With respect to the above contentions regarding quantum of sentence, the prosecution submitted that the appellant was in possession and storage of 13 AK-56 rifles and 26 magazines for a considerable period of time.
150. From the materials, it is clear that the appellant neither dissociated himself nor resisted from participating in the landings at Shekhadi or transportation of contraband material to Waghani Tower nor did he inform the same to the police authorities or took any steps for the same. This is sufficient to show that he was responsible for the blasts in Bombay and he was very well aware of its consequences.
151. In view of the above, we are of the view that the sentence awarded by the Designated Court to the appellant is justified and the same is confirmed. Consequently, the appeal is dismissed.
