Sardar Shahwali Khan (A-54) Vs. The State of Maharashtra through STF, CBI Mumbai
EmailAppeal:
Petitioner: Sardar Shahwali Khan (A-54)
Respondent: The State of Maharashtra through STF, CBI Mumbai
Apeal:
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Appearances:
Criminal Appeal Nos. 1127-1128 of 2007
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 Accused A54 (Shahwali Khan) Involvement of Evidence Confessional statement of co-accused, (A11), Bashir Ahmad, (A13), Md. Iqbal (A23) Shahnawaz (A29), Zakir Hussain (A32), Md Mushtaq (A44) , Nasim (A49), Sheikh Ali (A57), Niyaz (A98), Parvez (A100) All confessions corroborating with each other on material particulars Accused closely associated with Tiger Memon, the master mind and other leaders Accused also identified by approver PW2, who deposed about his role and his meeting with Tiger Memon Evidence showing him having undergone training in firing Recoveries of empties proved Surveyed two buildings before blast Also proved to be present at building where vehicles were filled with RDX. Held that case against him is fully proved. Hence conviction and sentence imposed upon him are justified and approved. Appeal dismissed.
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 Accused A54 (Shahwali Khan) Involvement of Evidence Confessional statement of co-accused, (A11), Bashir Ahmad, (A13), Md. Iqbal (A23) Shahnawaz (A29), Zakir Hussain (A32), Md Mushtaq (A44) , Nasim (A49), Sheikh Ali (A57), Niyaz (A98), Parvez (A100) All confessions corroborating with each other on material particulars Accused closely associated with Tiger Memon, the master mind and other leaders Accused also identified by approver PW2, who deposed about his role and his meeting with Tiger Memon Evidence showing him having undergone training in firing Recoveries of empties proved Surveyed two buildings before blast Also proved to be present at building where vehicles were filled with RDX. Held that case against him is fully proved. Hence conviction and sentence imposed upon him are justified and approved. Appeal dismissed.
Held:
From the materials relied on by the prosecution, it is established that:
(i) Pursuant to the conspiracy, the appellant participated in the training in handling of arms and ammunitions and explosives at Borghat and Sandheri along with Tiger Memon and other co-conspirators;
(ii) The appellant participated in various conspiratorial meetings at the residence of Babloo @ Nazir Ahmed Anwar Shaikh and Mobina @ Bayamoosa Bhiwandiwala (A-96) and was a part of the core group making plans;
(iii) The appellant surveyed and conducted reconnaissance of the Stock Exchange building and BMC building along with A-44, PW-2 and Javed Chikna (AA) which were the proposed targets of explosion; and
(iv) The appellant was present at Al-Hussaini building in the intervening night of 11/12th March, 1993, at the crucial time, when the activities like filling of RDX explosives in various vehicles were going on. (Para 49)
The appellant has participated in various stages of the conspiracy from planning till execution. He was also present during the filling of RDX in the vehicles which were planted at various locations resulting in the death of hundreds of people and injuries to many. The crimes committed by the accused including the appellant (A-54) have shocked the conscience of the society. The blasts on 12.03.1993 have caused massive loss to life and property and were carried out in an organized and systematic manner in which the appellant (A-54) has played an active role. (Para 51)
JUDGEMENT:
JUDGEMENT
39. Mr. Jaspal Singh, learned senior counsel appeared for the appellant (A-54) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent-CBI.
40. The instant appeals are directed against the final judgment and order of conviction and sentence dated 24.11.2006 and 06.06.2007 respectively, whereby the appellant (A-54) 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.
Charges:
41. A common charge of conspiracy was framed against all the co-conspirators including the present appellant (A-54). The material portion of the first charge against the appellant (A-54) is as follows:
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 hand-grenades 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.
41.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head secondly; The appellant (A-54) was also charged for committing an offence punishable under Section 3(3) of TADA by committing the following overt acts:-
(a) He participated in the training in handling of arms, ammunitions and explosives at Borghat and Sandheri along with Tiger Memon and other co-conspirators;
(b) He participated in the landing and transportation of arms, ammunitions and explosives which were smuggled into India at Shekhadi;
(c) He attended conspiratorial meetings at the residence of Babloo @ Nazir Ahmed Anwar Shaikh and Mobina @ Baya Moosa Bhiwandiwala (A-96) for making plans to commit terrorist act and he also attended conspiratorial meeting at Taj Mahal Hotel;
(d) He surveyed and conducted reconnaissance of the Stock Exchange Building and B.M.C. Building along with A-44, PW-2 and Javed Chikna (AA) for causing explosions there; and
(e) He participated along with co-conspirators in loading explosives like RDX fitted with time-device detonators in various vehicles in the preparation of vehicle bombs in the intervening night of 11/12th March, 1993.
42. The charges mentioned above were proved against the appellant (A-54). The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) The appellant has been convicted for the offence of conspiracy 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 under Section 3 (3) of TADA except clause (b) and sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge secondly)
Evidence:
43. The evidence against the appellant (A-54) is in the form of:
i) confessions made by co-accused;
ii) testimony of prosecution witnesses; and
(iii) documentary evidence on record.
Confessional Statements of co-accused:
Confessional Statement of Abdul Gani Ismail Turk (A-11)
44. Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession reveals as under:
(i) The appellant (A-54) was present in the house of Mobina (A-96) along with Tiger Memon, Javed Chikna and other co-conspirators.
(ii) The appellant (A-54) took weapons training which was imparted by Tiger Memon.
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
44.1 Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then D.C.P. Zone III, Bombay. The said confession reveals as under:
(i) The appellant (A-54), along with co-accused persons, was present on the 7th floor of a building behind Bhabha Hospital.
(ii) The appellant (A-54), on the instructions of Tiger Memon, administered oath to other co-accused persons that they will combat Jehad and will not disclose anything to anybody.
(iii) The appellant (A-54) attended training in handling of arms and ammunitions imparted by Tiger Memon.
(iv) The appellant (A-54) was present at the residence of Tiger Memon on 11.03.1993 around 11 p.m.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
44.2 Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (1000 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-23 made the following references with regard to the appellant in his confession:
(i) The appellant (A-54), along with co-accused persons, was present on the 7th floor of a building behind Bhabha Hospital.
(ii) The appellant (A-54), along with other co-accused persons, was administered oath by Tiger Memon that they will combat Jehad.
(iii) The appellant (A-54), along with other co-accused persons, participated in the training of arms and ammunitions and explosives imparted by Tiger Memon
(iv) The appellant (A-54), along with other co-accused persons, was present in a meeting held at a flat in Bandra where Tiger Memon held discussions.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
44.3 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-29 stated that the appellant (A-54), along with other co- accused persons, was present at the house of Tiger Memon on 11.03.1993.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
44.4 Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-32 stated that the appellant, along with other co-accused persons, was present at Al-Hussaini building on the night intervening 11/12.03.1993.
Confessional Statement of Mohd. Mushtaq Moosa Tarani (A-44)
44.5 Confessional statement of A-44 under Section 15 of TADA has been recorded on 26.05.1993 (16:55 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-44 stated that the appellant (A-54), along with him, Javed Chikna, PW-2 and Tiger Memon did reconnaissance of the BMC building.
Confessional Statement of Nasim Ashraf Shaikh Ali Barmare (A-49)
44.6 Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (09:30 hrs.) and 18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-49 stated that on 09.03.1993 the appellant (A-54), along with other co-accused persons, was present in a flat at Bandra, Hill Road where Tiger Memon discussed his plans with them.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
44.7 Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (1200 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-57 made the following references with regard to the appellant:
(i) The appellant (A-54) was a friend of Javed Chikna and he met Tiger Memon through him.
(ii) The appellant (A-54) went to Ajmer along with Javed Chikna and other accused persons.
(iii) The appellant (A-54), along with other co-accused persons, was present at Al-Hussaini Building on 11.03.1993.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
44.8 Confessional statement of A-98 under Section 15 of TADA has been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-98 stated that the appellant, along with PW-2 and others, conducted reconnaissance of the BMC Building.
Confessional Statement of Parvez Mohd. Parvez Zulfikar Qureshi (A-100)
44.9 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. In his confession, A-100 stated that the appellant (A-54), along with other co-accused persons, was present at a flat in Bandra where Tiger Memon distributed Rs.5,000/- to each one of the accused persons.
45. A perusal of the confessional statements of all the above accused, viz., A-11, A-13, A-23, A-29, A-32, A-44, A-49, A-57, A-98 and A-100 clearly establish the fact that it corroborate with each other in material particulars with regard to the involvement of the appellant. After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established inasmuch as:
(i) The appellant participated in the training in handling of arms and ammunitions and explosives at Borghat and Sandheri along with Tiger Memon and other co-conspirators;
(ii) The appellant attended conspiratorial meetings wherein plans were chalked out to commit terrorist acts;
(iii) The appellant surveyed and conducted reconnaissance of the Stock Exchange Building and BMC building for causing explosions along with A-44, PW-2 and Javed Chikna (AA);
(iv) The appellant was present at Al-Hussaini building at the time when loading of explosives like RDX fitted with time device detonators in various vehicles was being done in the intervening night of 11/12.03.1993;
(v) The appellant was closely associated with Tiger Memon and on being asked by him, A-54 administered oath to other co-accused persons;
(vi) The appellant also took oath to take part in Jehad;
(vii) There was a close link between the appellant and Javed Chikna (AA), who had played a crucial and pivotal role in achieving the object of the conspiracy;
(viii) The appellant was fully aware and conscious of the fact that he was waging Jehad and taking and administering of oath by him shows his intent and determination to cause damage and destruction; and
(ix) The appellant was fully aware and conscious of the consequences of his actions, and accordingly, played an important role in the entire conspiracy.
Deposition of Prosecution Witnesses:
46. Apart from the aforesaid evidence, the involvement and 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 Mohd. Usman Jan Khan (PW-2)
46.1 After going through his entire evidence, we summarize his evidence with reference to the appellant (A-54) as under:
(i) He knows the appellant as Sardar;
(ii) He identified the appellant before the Court during dock proceedings;
(iii) He deposed that the appellant, along with other co-accused persons, was involved in planning, conspiring and training;
(iv) He deposed that on 04.03.1993, at Taj Mahal Hotel, Tiger Memon asked PW-2, Bashir, Javed Chikna to survey BMC building along with the appellant.
(v) On 05.03.1993, Bashir Khan administered oath to the accused that whatever they will do, will do for Islam and take revenge.
(vi) The appellant readily agreed to take revenge and offered to go to Pakistan for training;
(vii) PW-2, along with other co-accused, went to the house of the appellant;
(viii) On 07.03.1993, A-54 attended the meeting held by Tiger Memon at the residence of Shakil in which Tiger Memon organized separate groups;
(ix) A-54 also attended the meeting on 08.03.1993 at the residence of Babloo. He agreed to do the work assigned to him in the organized group where Tiger Memon selected the targets which were to be attacked.
(x) PW-2, Tiger Memon and other accused took A-54 to BMC building on 09.03.1993 where entry and exit points to the said building were shown for the purpose of attacking the BJP and Shiv Sena Councillors;
(xi) On 10.03.1993, A-54 attended the meeting at the residence of Shakil where separate groups were formed by Tiger Memon;
(xii) A-54 was present on the night of 11.03.1993 at Al-Hussaini Building.
Training at Sandheri and Borghat Districts:
Deposition of Harish Chandra Keshav Pawar (PW-105)
46.2 PW-105 is an eye-witness to the incident of firing. He deposed as under:
(i) At the relevant time, he was studying in 8th standard and was residing at Sandheri;
(ii) On 08.03.1993, at about 0900 hrs., an event occurred on the eastern side hillock to village Sandheri;
(iii) The said event was in connection with gun firing;
(iv) 10-11 persons participated in the said firing incident;
(v) Cardboard sheets were placed by the side of hillock;
(vi) 4/5 persons from the group of 8/10 persons were firing at the said cardboards using guns;
(vii) He deposed that he knew 3 persons from the group, namely, A-17, A-79 and A-78 (since deceased) as they were from Sandheri Village;
(viii) He was there for 20-25 seconds along with his friends. When Hamid Dafedar (A-78) noticed them standing, he threatened them to go otherwise they would be killed.
46.3 PW 105 is an eyewitness to the practice session which took place at the hillocks of Sandheri Village. He was thoroughly cross-examined by the defence and he withstood the rigorous cross-examination without being shaken. The evidence of PW-105 corroborates the fact that the training in fire arms was conducted at the hillocks of Sandheri and 10-11 persons participated in the said training.
Deposition of Rajaram Ramchandra Kadam (PW-106)
46.4 PW-106 is an eye-witness to the incident. In his evidence, he deposed as under:
(i) He is an agriculturist and resides at Sandheri;
(ii) On 08.03.1993, at about 09.30 a.m., he heard the sound of firing from the side of Chinchechammal;
(iii) He went to the said place and saw two men standing armed with guns and a cardboard target that was placed near the hillock;
(iv) He deposed that he knew 5 persons from the group as they were from Sandheri Village;
(v) He identified them before the Court as A-79, A-106, A-131, A-111 and A-78.
46.5 PW-106 is also an eye-witness to the training session which took place at the hillocks of Sandheri Village. Both these witnesses corroborate with each other on the fact that training in fire arms was conducted at the above-said place. These witnesses also corroborate the confessional statements insofar as the said training is concerned.
Deposition of Namdeo Pundlik Mahajan (PW-587)
46.6 PW-587 was a Constable attached with Goregaon Police Station, District Raigad at the relevant time. The witness deposed that:
(i) He inspected the site of the incident and collected 3 empties, 6 lead pieces, cardboard target, stones bearing the marks of hitting of bullets and a broken branch of tree.
(ii) The aforesaid articles were collected and seized by him in the presence of panchas and a panchnama was drawn.
(iii) He wrote a complaint which was registered by Head Constable.
The evidence of PW-587 further proves that firing took place at the hillocks of village Sandheri.
Deposition of Mahadeo Jadhav (PW-103)
46.7 PW-103 deposed about the seizures affected by the police at the hillocks of Village Sandheri on 29.03.1993.
47. Mr. Jaspal Singh, learned senior counsel for the appellant contended that there is, in fact, no evidence on record to prove his role in the entire conspiracy. On the other hand, mere perusal of the entire evidence as mentioned hereinabove makes it clear that there is sufficient evidence on record to show that the appellant actively participated in the attainment of the objects behind the conspiracy.
48. It is further contended on behalf of the appellant that his name is Sardar Shahwali Khan and not Sardar alone and none of the confessions actually refer to him as Sardar Shahwali Khan. On perusal of the instant appeal, particularly, Memo of Parties filed by the appellant (A-54), it is clearly discernible that his name is Sardar Shahwali Khan S/o Shahwali Khan, therefore, his first name is Sardar with fathers name Shahwali and surname Khan.
49. From the materials relied on by the prosecution, it is established that:
(i) Pursuant to the conspiracy, the appellant participated in the training in handling of arms and ammunitions and explosives at Borghat and Sandheri along with Tiger Memon and other co-conspirators;
(ii) The appellant participated in various conspiratorial meetings at the residence of Babloo @ Nazir Ahmed Anwar Shaikh and Mobina @ Bayamoosa Bhiwandiwala (A-96) and was a part of the core group making plans;
(iii) The appellant surveyed and conducted reconnaissance of the Stock Exchange building and BMC building along with A-44, PW-2 and Javed Chikna (AA) which were the proposed targets of explosion; and
(iv) The appellant was present at Al-Hussaini building in the intervening night of 11/12th March, 1993, at the crucial time, when the activities like filling of RDX explosives in various vehicles were going on.
49.1 On the basis of the above said evidence, the charges framed against the appellant (A-54) have been fully proved beyond all reasonable doubt.
Sentence
50. We are also satisfied that the appellant was given full opportunity to defend himself on the question of quantum of sentence. The appellant filed a statement dated 27.11.2006 in which he prayed that the following factors may be considered while determining his sentence:
(i) He is the sole bread winner of his family;
(ii) He has been in custody for five years and five months; and
(iii) He has to look after his 90 years old father who is blind.
Conclusion:
51. The appellant has participated in various stages of the conspiracy from planning till execution. He was also present during the filling of RDX in the vehicles which were planted at various locations resulting in the death of hundreds of people and injuries to many. The crimes committed by the accused including the appellant (A-54) have shocked the conscience of the society. The blasts on 12.03.1993 have caused massive loss to life and property and were carried out in an organized and systematic manner in which the appellant (A-54) has played an active role.
52. In the light of the above, we are of the view that the conviction and sentence imposed by the Designated Court to the appellant (A-54) is sustainable and justified, consequently, the appeals fail and are liable to be dismissed.
39. Mr. Jaspal Singh, learned senior counsel appeared for the appellant (A-54) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent-CBI.
40. The instant appeals are directed against the final judgment and order of conviction and sentence dated 24.11.2006 and 06.06.2007 respectively, whereby the appellant (A-54) 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.
Charges:
41. A common charge of conspiracy was framed against all the co-conspirators including the present appellant (A-54). The material portion of the first charge against the appellant (A-54) is as follows:
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 hand-grenades 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.
41.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head secondly; The appellant (A-54) was also charged for committing an offence punishable under Section 3(3) of TADA by committing the following overt acts:-
(a) He participated in the training in handling of arms, ammunitions and explosives at Borghat and Sandheri along with Tiger Memon and other co-conspirators;
(b) He participated in the landing and transportation of arms, ammunitions and explosives which were smuggled into India at Shekhadi;
(c) He attended conspiratorial meetings at the residence of Babloo @ Nazir Ahmed Anwar Shaikh and Mobina @ Baya Moosa Bhiwandiwala (A-96) for making plans to commit terrorist act and he also attended conspiratorial meeting at Taj Mahal Hotel;
(d) He surveyed and conducted reconnaissance of the Stock Exchange Building and B.M.C. Building along with A-44, PW-2 and Javed Chikna (AA) for causing explosions there; and
(e) He participated along with co-conspirators in loading explosives like RDX fitted with time-device detonators in various vehicles in the preparation of vehicle bombs in the intervening night of 11/12th March, 1993.
42. The charges mentioned above were proved against the appellant (A-54). The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) The appellant has been convicted for the offence of conspiracy 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 under Section 3 (3) of TADA except clause (b) and sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge secondly)
Evidence:
43. The evidence against the appellant (A-54) is in the form of:
i) confessions made by co-accused;
ii) testimony of prosecution witnesses; and
(iii) documentary evidence on record.
Confessional Statements of co-accused:
Confessional Statement of Abdul Gani Ismail Turk (A-11)
44. Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession reveals as under:
(i) The appellant (A-54) was present in the house of Mobina (A-96) along with Tiger Memon, Javed Chikna and other co-conspirators.
(ii) The appellant (A-54) took weapons training which was imparted by Tiger Memon.
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
44.1 Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then D.C.P. Zone III, Bombay. The said confession reveals as under:
(i) The appellant (A-54), along with co-accused persons, was present on the 7th floor of a building behind Bhabha Hospital.
(ii) The appellant (A-54), on the instructions of Tiger Memon, administered oath to other co-accused persons that they will combat Jehad and will not disclose anything to anybody.
(iii) The appellant (A-54) attended training in handling of arms and ammunitions imparted by Tiger Memon.
(iv) The appellant (A-54) was present at the residence of Tiger Memon on 11.03.1993 around 11 p.m.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
44.2 Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (1000 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-23 made the following references with regard to the appellant in his confession:
(i) The appellant (A-54), along with co-accused persons, was present on the 7th floor of a building behind Bhabha Hospital.
(ii) The appellant (A-54), along with other co-accused persons, was administered oath by Tiger Memon that they will combat Jehad.
(iii) The appellant (A-54), along with other co-accused persons, participated in the training of arms and ammunitions and explosives imparted by Tiger Memon
(iv) The appellant (A-54), along with other co-accused persons, was present in a meeting held at a flat in Bandra where Tiger Memon held discussions.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
44.3 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-29 stated that the appellant (A-54), along with other co- accused persons, was present at the house of Tiger Memon on 11.03.1993.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
44.4 Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-32 stated that the appellant, along with other co-accused persons, was present at Al-Hussaini building on the night intervening 11/12.03.1993.
Confessional Statement of Mohd. Mushtaq Moosa Tarani (A-44)
44.5 Confessional statement of A-44 under Section 15 of TADA has been recorded on 26.05.1993 (16:55 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-44 stated that the appellant (A-54), along with him, Javed Chikna, PW-2 and Tiger Memon did reconnaissance of the BMC building.
Confessional Statement of Nasim Ashraf Shaikh Ali Barmare (A-49)
44.6 Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (09:30 hrs.) and 18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-49 stated that on 09.03.1993 the appellant (A-54), along with other co-accused persons, was present in a flat at Bandra, Hill Road where Tiger Memon discussed his plans with them.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
44.7 Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (1200 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-57 made the following references with regard to the appellant:
(i) The appellant (A-54) was a friend of Javed Chikna and he met Tiger Memon through him.
(ii) The appellant (A-54) went to Ajmer along with Javed Chikna and other accused persons.
(iii) The appellant (A-54), along with other co-accused persons, was present at Al-Hussaini Building on 11.03.1993.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
44.8 Confessional statement of A-98 under Section 15 of TADA has been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, A-98 stated that the appellant, along with PW-2 and others, conducted reconnaissance of the BMC Building.
Confessional Statement of Parvez Mohd. Parvez Zulfikar Qureshi (A-100)
44.9 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. In his confession, A-100 stated that the appellant (A-54), along with other co-accused persons, was present at a flat in Bandra where Tiger Memon distributed Rs.5,000/- to each one of the accused persons.
45. A perusal of the confessional statements of all the above accused, viz., A-11, A-13, A-23, A-29, A-32, A-44, A-49, A-57, A-98 and A-100 clearly establish the fact that it corroborate with each other in material particulars with regard to the involvement of the appellant. After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established inasmuch as:
(i) The appellant participated in the training in handling of arms and ammunitions and explosives at Borghat and Sandheri along with Tiger Memon and other co-conspirators;
(ii) The appellant attended conspiratorial meetings wherein plans were chalked out to commit terrorist acts;
(iii) The appellant surveyed and conducted reconnaissance of the Stock Exchange Building and BMC building for causing explosions along with A-44, PW-2 and Javed Chikna (AA);
(iv) The appellant was present at Al-Hussaini building at the time when loading of explosives like RDX fitted with time device detonators in various vehicles was being done in the intervening night of 11/12.03.1993;
(v) The appellant was closely associated with Tiger Memon and on being asked by him, A-54 administered oath to other co-accused persons;
(vi) The appellant also took oath to take part in Jehad;
(vii) There was a close link between the appellant and Javed Chikna (AA), who had played a crucial and pivotal role in achieving the object of the conspiracy;
(viii) The appellant was fully aware and conscious of the fact that he was waging Jehad and taking and administering of oath by him shows his intent and determination to cause damage and destruction; and
(ix) The appellant was fully aware and conscious of the consequences of his actions, and accordingly, played an important role in the entire conspiracy.
Deposition of Prosecution Witnesses:
46. Apart from the aforesaid evidence, the involvement and 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 Mohd. Usman Jan Khan (PW-2)
46.1 After going through his entire evidence, we summarize his evidence with reference to the appellant (A-54) as under:
(i) He knows the appellant as Sardar;
(ii) He identified the appellant before the Court during dock proceedings;
(iii) He deposed that the appellant, along with other co-accused persons, was involved in planning, conspiring and training;
(iv) He deposed that on 04.03.1993, at Taj Mahal Hotel, Tiger Memon asked PW-2, Bashir, Javed Chikna to survey BMC building along with the appellant.
(v) On 05.03.1993, Bashir Khan administered oath to the accused that whatever they will do, will do for Islam and take revenge.
(vi) The appellant readily agreed to take revenge and offered to go to Pakistan for training;
(vii) PW-2, along with other co-accused, went to the house of the appellant;
(viii) On 07.03.1993, A-54 attended the meeting held by Tiger Memon at the residence of Shakil in which Tiger Memon organized separate groups;
(ix) A-54 also attended the meeting on 08.03.1993 at the residence of Babloo. He agreed to do the work assigned to him in the organized group where Tiger Memon selected the targets which were to be attacked.
(x) PW-2, Tiger Memon and other accused took A-54 to BMC building on 09.03.1993 where entry and exit points to the said building were shown for the purpose of attacking the BJP and Shiv Sena Councillors;
(xi) On 10.03.1993, A-54 attended the meeting at the residence of Shakil where separate groups were formed by Tiger Memon;
(xii) A-54 was present on the night of 11.03.1993 at Al-Hussaini Building.
Training at Sandheri and Borghat Districts:
Deposition of Harish Chandra Keshav Pawar (PW-105)
46.2 PW-105 is an eye-witness to the incident of firing. He deposed as under:
(i) At the relevant time, he was studying in 8th standard and was residing at Sandheri;
(ii) On 08.03.1993, at about 0900 hrs., an event occurred on the eastern side hillock to village Sandheri;
(iii) The said event was in connection with gun firing;
(iv) 10-11 persons participated in the said firing incident;
(v) Cardboard sheets were placed by the side of hillock;
(vi) 4/5 persons from the group of 8/10 persons were firing at the said cardboards using guns;
(vii) He deposed that he knew 3 persons from the group, namely, A-17, A-79 and A-78 (since deceased) as they were from Sandheri Village;
(viii) He was there for 20-25 seconds along with his friends. When Hamid Dafedar (A-78) noticed them standing, he threatened them to go otherwise they would be killed.
46.3 PW 105 is an eyewitness to the practice session which took place at the hillocks of Sandheri Village. He was thoroughly cross-examined by the defence and he withstood the rigorous cross-examination without being shaken. The evidence of PW-105 corroborates the fact that the training in fire arms was conducted at the hillocks of Sandheri and 10-11 persons participated in the said training.
Deposition of Rajaram Ramchandra Kadam (PW-106)
46.4 PW-106 is an eye-witness to the incident. In his evidence, he deposed as under:
(i) He is an agriculturist and resides at Sandheri;
(ii) On 08.03.1993, at about 09.30 a.m., he heard the sound of firing from the side of Chinchechammal;
(iii) He went to the said place and saw two men standing armed with guns and a cardboard target that was placed near the hillock;
(iv) He deposed that he knew 5 persons from the group as they were from Sandheri Village;
(v) He identified them before the Court as A-79, A-106, A-131, A-111 and A-78.
46.5 PW-106 is also an eye-witness to the training session which took place at the hillocks of Sandheri Village. Both these witnesses corroborate with each other on the fact that training in fire arms was conducted at the above-said place. These witnesses also corroborate the confessional statements insofar as the said training is concerned.
Deposition of Namdeo Pundlik Mahajan (PW-587)
46.6 PW-587 was a Constable attached with Goregaon Police Station, District Raigad at the relevant time. The witness deposed that:
(i) He inspected the site of the incident and collected 3 empties, 6 lead pieces, cardboard target, stones bearing the marks of hitting of bullets and a broken branch of tree.
(ii) The aforesaid articles were collected and seized by him in the presence of panchas and a panchnama was drawn.
(iii) He wrote a complaint which was registered by Head Constable.
The evidence of PW-587 further proves that firing took place at the hillocks of village Sandheri.
Deposition of Mahadeo Jadhav (PW-103)
46.7 PW-103 deposed about the seizures affected by the police at the hillocks of Village Sandheri on 29.03.1993.
47. Mr. Jaspal Singh, learned senior counsel for the appellant contended that there is, in fact, no evidence on record to prove his role in the entire conspiracy. On the other hand, mere perusal of the entire evidence as mentioned hereinabove makes it clear that there is sufficient evidence on record to show that the appellant actively participated in the attainment of the objects behind the conspiracy.
48. It is further contended on behalf of the appellant that his name is Sardar Shahwali Khan and not Sardar alone and none of the confessions actually refer to him as Sardar Shahwali Khan. On perusal of the instant appeal, particularly, Memo of Parties filed by the appellant (A-54), it is clearly discernible that his name is Sardar Shahwali Khan S/o Shahwali Khan, therefore, his first name is Sardar with fathers name Shahwali and surname Khan.
49. From the materials relied on by the prosecution, it is established that:
(i) Pursuant to the conspiracy, the appellant participated in the training in handling of arms and ammunitions and explosives at Borghat and Sandheri along with Tiger Memon and other co-conspirators;
(ii) The appellant participated in various conspiratorial meetings at the residence of Babloo @ Nazir Ahmed Anwar Shaikh and Mobina @ Bayamoosa Bhiwandiwala (A-96) and was a part of the core group making plans;
(iii) The appellant surveyed and conducted reconnaissance of the Stock Exchange building and BMC building along with A-44, PW-2 and Javed Chikna (AA) which were the proposed targets of explosion; and
(iv) The appellant was present at Al-Hussaini building in the intervening night of 11/12th March, 1993, at the crucial time, when the activities like filling of RDX explosives in various vehicles were going on.
49.1 On the basis of the above said evidence, the charges framed against the appellant (A-54) have been fully proved beyond all reasonable doubt.
Sentence
50. We are also satisfied that the appellant was given full opportunity to defend himself on the question of quantum of sentence. The appellant filed a statement dated 27.11.2006 in which he prayed that the following factors may be considered while determining his sentence:
(i) He is the sole bread winner of his family;
(ii) He has been in custody for five years and five months; and
(iii) He has to look after his 90 years old father who is blind.
Conclusion:
51. The appellant has participated in various stages of the conspiracy from planning till execution. He was also present during the filling of RDX in the vehicles which were planted at various locations resulting in the death of hundreds of people and injuries to many. The crimes committed by the accused including the appellant (A-54) have shocked the conscience of the society. The blasts on 12.03.1993 have caused massive loss to life and property and were carried out in an organized and systematic manner in which the appellant (A-54) has played an active role.
52. In the light of the above, we are of the view that the conviction and sentence imposed by the Designated Court to the appellant (A-54) is sustainable and justified, consequently, the appeals fail and are liable to be dismissed.
