Shaikh Ali Shaikh Umar (A-57) Vs. The State of Maharashtra, through Superintendent of Police, CBI (STF),
EmailAppeal: Criminal Appeal No. 924 of 2008
Petitioner: Shaikh Ali Shaikh Umar (A-57)
Respondent: The State of Maharashtra, through Superintendent of Police, CBI (STF), Mumbai
Apeal: Criminal Appeal No. 924 of 2008
Judges:
Date of Judgment: Mar 21, 2013
Head Note:
TADA Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860 Sections 120B, 302, 304, 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 under Bombay blast case Involvement and role of accused Shaikh Ali (A57) Charges of conspiracy, murder etc., Evidence against him Appreciation Evidence comprising of his own confession Corroboration by confession of co-conspirators viz., A16, A64, A100, A77, A98, A13, A32, A36, A23 Further corroboration by Pws including approver (Pw2) If his own confession is weak piece of evidence If conviction cannot be based on his confession and that of co-accused. Held that confessions being voluntary and admissible, has already been dealt with, regard to other accused and hence, principals need not be repeated. His role is established by other confessions and evidence. He was specifically named and identified by PW2 (approver). Accused himself admitted having filled vehicles with explosives. Hence, his involvement is duly established. Conviction and sentence affirmed.
Sections 3(3), 5, 6, 15 Penal Code 1860 Sections 120B, 302, 304, 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 under Bombay blast case Involvement and role of accused Shaikh Ali (A57) Charges of conspiracy, murder etc., Evidence against him Appreciation Evidence comprising of his own confession Corroboration by confession of co-conspirators viz., A16, A64, A100, A77, A98, A13, A32, A36, A23 Further corroboration by Pws including approver (Pw2) If his own confession is weak piece of evidence If conviction cannot be based on his confession and that of co-accused. Held that confessions being voluntary and admissible, has already been dealt with, regard to other accused and hence, principals need not be repeated. His role is established by other confessions and evidence. He was specifically named and identified by PW2 (approver). Accused himself admitted having filled vehicles with explosives. Hence, his involvement is duly established. Conviction and sentence affirmed.
Held:
Inasmuch as similar contentions have been elaborately dealt with by us in earlier paragraphs, applying and reiterating the same principles, we are not once again repeating the same. (Para 395)
A perusal of the confession of the appellant shows that he guarded the area at the time when landing of arms, ammunition and explosives took place at Shekhadi. He filled iron scraps and RDX in vehicles in the intervening night of 11/12.03.1993. He attended conspiratorial meetings and also conducted reconnaissance of the B.M.C. building and on the fateful day he travelled in a Maruti Van loaded with arms, ammunitions, hand grenades and explosives with intent to conduct terrorist acts at BMC building and other places and abandoned the same near the gate of Siemens factory. (Para 397)
As regards the confessional statements of co-accused, the dictum laid down in Kartar Singhs case and Navjot Sandhus case as well as Nalinis case and subsequent judgments have been considered by this Court in the earlier part of our judgment, hence, there is no need to analyse the same once again. [Para 389]
Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the co-accused. (Para 399)
Confessional statement of A-16 under corroborates the statement of the appellant to the effect that he travelled to Shekhadi along with co-accused and that he was given a rifle by Tiger Memon to keep a guard at the coast while landing was taking place, whereafter, he along with others went to the Tower with the landed goods in the Tempo and slept at the Tower. (Para 399.1)
A perusal of the confessional statements of all the above accused, viz., A-16, A-64, A-100, A-77, A-98, A-13, A-32, A-36, and A-23 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-57). All these materials clearly establish that the appellant committed the following overt acts:-
(i) He participated in the landing and transportation of arms and ammunitions and explosives at Shekhadi on 03.02.1993 and 07.02.1993 and also in the transportation of the same to the Tower;
(ii) He attended conspiratorial meeting;
(iii) He participated in the preparation of vehicle bombs by filling and loading explosives like RDX with time device detonators in the night intervening 11/12.03.1993;
(iv) The appellant was actively involved in the conspiracy as he was introducing new members in the conspiracy.
(v) He got A-77 into the conspiracy;
(vi) He along with other co-accused did reconnaissance of the BMC building and the Stock Exchange Building which were marked as prospective targets for planting bombs.
(vii) The appellant, on the fateful day, travelled in a Maruti Van loaded with arms, ammunitions, hand grenades and explosives with intent to conduct terrorist acts at BMC building and other places and abandoned the same near the gate of Siemens factory.
(viii) The appellant was an important member of the team of conspirators as he was also aware that people were sent to Dubai and Pakistan by Tiger Memon for daring works (Para 400)
The evidence establish that the appellant (A-57) was a member of the conspiracy which resulted in the blasts and acts which took place in Bombay on 12.03.1993. He played an active role in the conspiracy. The involvement of the appellant in various aspects of the conspiracy can be summarized below:
(i) The landing of arms and ammunitions and explosives at Shekhadi;
(ii) The transportation of arms and ammunitions and explosives which had landed at Shekhadi;
(iii) He took training in handling weapons and explosives at Sandheri;
(iv) He participated in the survey/reconnaissance of the Bombay Municipal Corporation building conducted on 09.03.1993;
(v) He attended conspiratorial meetings that took place to further the common motives of the conspirators and to decide the plan of action to meet the ends of the conspiracy; (Para 405)
It is thus established that the appellant played a significant role in the conspiracy and knew about the intention of the conspirators well before the incidents took place. The appellant shared the motive and the intention along with the other conspirators and was committed to achieve the ultimate goal of the conspiracy. (Para 406)
Despite being needy and requiring money at the time of first landing, he got to know that the first landing was of arms and ammunitions and explosives which were capable of causing mass destruction, he chose to remain silent instead of approaching the police or taking recourse to law. Despite all this, he participated in the second landing at Shekhadi, and moreover, he went to Sandheri and took training in handling of arms, ammunition and explosives. (Para 408)
The appellant attended crucial conspiratorial meetings also. On the night of 11/12.03.1993, he participated in the filling of RDX in vehicles for the preparation of vehicle bombs. He also introduced Gul Mohmed (A-77) in the conspiracy and got him recruited for training in handling of arms and ammunitions and explosives at Pakistan. The appellant also undertook reconnaissance of the B.M.C. building and the Stock Exchange building along with A-44, PW-2, Javed Chikna and Tiger Memon, which were marked as targets for planting bombs. (Para 409)
After the blasts, he left Bombay and went to Ahmednagar. This establishes that he knew that whatever the conspirators had done was wrong and contrary to law. Thus, his claim that he disassociated himself at the time of the first landing at Shekhadi has not been made out in the light of other evidence on record. (Para 410)
It is clearly established from his confession that Tiger Memon had told his associates that the smuggled arms were to be used against Hindus to take revenge for the demolition of Babri Masjid and that they would be used for causing blasts in Bombay. (Para 411)
JUDGEMENT:
389. Mr. Aabad Ponda, learned counsel appeared for the appellant (A-57) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent.
390. The present appeal is directed against the final judgment and order of conviction and sentence dated 06.10.2006 and 07.06.2007 respectively, whereby the appellant (A-57) 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:
391. A common charge of conspiracy was framed against all the co-conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (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 Machhimar 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.
391.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly; The accused committed an offence punishable under section 3(3) of TADA by committing the following overt acts:
(a) He participated in the landing and transportation of arms, ammunitions and explosives at Shekhadi on 03.02.1993 and 07.02.1993;
(b) He participated in weapons training at Borghat and Sandheri District Raigarh;
(c) He attended conspiratorial meetings at the house of Nasir Ahmed Anwar Sheikh @ Babloo (AA) and Ms. Mobina @ Baya Moosa Bhiwandiwala (A-96);
(d) He participated in the preparation of vehicle bombs by filling and loading explosives like RDX with time device detonators in the night intervening 11/12.03.1993;
(e) He got Gul Mohmed @ Gullu Noor Mohammed Shaikh (A-77) into the conspiracy ; and
(f) He along with other co-accused did reconnaissance of the BMC building and stock exchange building which were marked as targets for planting bombs.
At head thirdly; The appellant accompanied other conspirators in a red coloured Maruti Van No. MFC 1972 loaded with arms, ammunition, hand grenades and explosives with an intent to conduct terrorist acts at BMC building and other places and abandoned the same near the gate of Siemens factory and thereby committed an offence punishable under Section 3(3) of TADA
At head fourthly; The appellant was in illegal possession of 7 AK-56 rifles, 14 magazines, 4 hand grenades and 2 detonators, unauthorisedly in notified area of Greater Bombay and thereby committed an offence under Section 5 of TADA;
At head fifthly; The appellant, by possessing the aforesaid arms and ammunitions, contravened the provisions of the Arms Act, 1959, Explosives Act, 1884, Explosives Rules, 1983 and The Explosive Substances Act, 1908 and thereby committed an office under Section 6 of TADA.
392. The Designated Judge found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the above said charges as 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 alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months for the commission of offence under Section 3(3) of TADA and Section 120B of IPC. (charge firstly)
ii) The appellant has been convicted for commission of offence under section 3(3) of TADA for commission of acts mentioned at head secondly and sentenced to RI for 14 years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge secondly)
iii) The appellant has been convicted and sentenced to RI for 10 years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months under Section 3(3) of TADA. (charge thirdly)
iv) The appellant has been convicted and sentenced to RI for 7 years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months under Section 5 of TADA. (charge fourthly)
v) The appellant has been convicted and sentenced to RI for 9 years alongwith a fine of Rs. 50,000/-, in default, to further undergo RI for a period of 1 year under Section 6 of TADA (charge fifthly).
Evidence
393. The evidence against the appellant (A-57) 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.
394. Mr. Aabad Ponda, learned counsel appearing for the appellant-accused submitted that though confession under TADA is admissible, yet it is a very weak piece of evidence since the police extract confessions by using third degree methods. He also submitted that unless the person who is confessing shows that he is in express remorse or sadness or if there is a total emotional break down and he is ready to face any consequence to tell the truth, it cannot be called or regarded as a confession in law. He further pointed out that unless a confession is voluntary, it cannot be relied upon. He also contended that as per the decision of the Constitution Bench of this Court in Kartar Singh (supra), one cannot start with the confession of co-accused but it must be established based upon other evidence.
395. Inasmuch as similar contentions have been elaborately dealt with by us in earlier paragraphs, applying and reiterating the same principles, we are not once again repeating the same.
Confessional statement of Shaikh Ali Shaikh Umar (A-57)
396. The involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay.A brief summary of the said confession is as follows:
(i) At the relevant time, he was 28 years old and was a resident of Bahrampada, Bandra East and was working as a moulder in Central Railway Workshop.
(ii) He was a childhood friend of Javed Chikna and they lived in the same colony. He also got acquainted with Bashir Ahmed Usman Gani Khairulla (A-13), Mohammed Usman Jan Khan (PW-2), Sardar Shawali Khan (A-54), Anwar, Asgar Yusuf Mukadam (A-10) and Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), who were the friends of Javed Chikna.
(iii) He along with A-13, PW-2, A-54, Anwar, A-10 and A-46 was introduced to Tiger Memon by Javed Chikna.
(iv) He also got acquainted with other co-accused at Tigers office.
(v) He, along with Javed Chikna and other co-accused, travelled to Ajmer in July-August along with 3 Pakistani nationals, out of whom, 2 got down 200 kms before Ajmer.
(vi) After reaching Ajmer, he told Javed Chikna about the Pakistani nationals.
(vii) At that time, A-57 and others guessed that Tiger and Javed Chikna were doing some illegal work along with Pakistani Nationals.
(viii) He even after that continued to meet with Javed Chikna and his friends.
(ix) During the riots, he was with the rioters.
(x) He introduced Gul Mohammed @ Gullu Noor Mohammed Shaikh (A-77) to Javed Chikna who, in turn, introduced A-77 to Tiger Memon.
(xi) On 08/09.02.1993, he along with other conspirators and Tiger Memon drove towards Goa Highway.
(xii) He was standing with a rifle while Tiger and other accused persons came with goods in a tempo. The appellant also sat on the goods in the tempo.
(xiii) They all slept at the Tower that night.
(xiv) In the appellants presence, Tiger Memon opened a hanging bag from the tempo which contained small bullets for pistol.
(xv) He dropped Javed at the Airport on 12.03.1993, and thereafter, he left for Dubai.
(xvi) On 09.03.1993, he along with Javed, PW-2 and other conspirators participated in the survey of BMC building as a prospective target.
(xvii) Javed told the appellant about a meeting in Bandra on 09.03.1993. He attended the said meeting.
(xviii) Tiger spoke about taking revenge and gave a provoking lecture and also gave Rs. 5,000/- to everyone present there.
(xix) The appellant again reached the residence of Tiger Memon.
(xx) Javed told the appellant that his group has to fire Machine Guns at people sitting in the BMC office and the Shiv Sena office and the role of the appellant was to stand at the door with a hand grenade and to keep a vigil. The appellant denied the same but agreed to sit with the driver.
(xxi) The appellant came down in the garage and noticed other conspirators loading RDX in vehicles on the night of 11.03.1993.
(xxii) Tiger left later that night.
(xxiii) The appellant also assisted in filling RDX in the vehicles by loading iron pieces.
(xxiv) He also described the scene at Al-Hussaini building on 12.03.1993 and also that rifles were packed in the goni.
(xxv) The appellant also kept packets of black soap in the dickey of red coloured Maruti car.
(xxvi) The appellant and Mohammed Moin Faridulla Qureshi (A-43) kept the rifles and cassettes in Maruti car no. MFC 1972 on 12.03.1993.
(xxvii) Thereafter, the appellant along with other conspirators left in the red Maruti Van for BMC office and the plan got cancelled because they did not have bullets.
(xxviii) A blast occurred near the passport office and because of the same the glass of Maruti car in which the appellant and other conspirators were sitting was blown off. They parked the car in a lane and hired a taxi.
(xxix) The appellant then met Javed who told him that explosions have happened and gave him Rs. 5,000/- and asked him to go to Ahmednagar.
397. A perusal of the confession of the appellant shows that he guarded the area at the time when landing of arms, ammunition and explosives took place at Shekhadi. He filled iron scraps and RDX in vehicles in the intervening night of 11/12.03.1993. He attended conspiratorial meetings and also conducted reconnaissance of the B.M.C. building and on the fateful day he travelled in a Maruti Van loaded with arms, ammunitions, hand grenades and explosives with intent to conduct terrorist acts at BMC building and other places and abandoned the same near the gate of Siemens factory.
Confessional Statements of co-accused:
398. As regards the confessional statements of co-accused, Mr. Aabads Ponda again while relying on the judgments of this Court in Kartar Singh (supra) and Navjot Sandhu (supra) contended that the law in Nalinis case (supra) and other subsequent judgments relying on Nalinis judgment do not lay down the correct law as they have not appreciated Kartar Singhs case in its proper perspective, consequently, the confession of co-accused cannot be pressed into service. The same objection and the dictum laid down in Kartar Singhs case and Navjot Sandhus case as well as Nalinis case and subsequent judgments have been considered by this Court in the earlier part of our judgment, hence, there is no need to analyse the same once again.
399. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-57) are summarized hereinbelow:
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
399.1 Confessional statement of A-16 under section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. A perusal of his confessional statement corroborates the statement of the appellant to the effect that he travelled to Shekhadi along with co-accused and that he was given a rifle by Tiger Memon to keep a guard at the coast while landing was taking place, whereafter, he along with others went to the Tower with the landed goods in the Tempo and slept at the Tower.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
399.2 Confessional statement of A-64 under section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by Shri HC Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. A-64, in his confessional statement, stated as under
i) He stated that he had seen the appellant at the reception of Yakub Abdul Razak Memon (A-1) and Ayub Memon, brothers of Tiger Memon.
ii) The appellant was present at Hotel Big Splash, Alibaug in the first week of February along with Javed Chikna and other conspirators.
iii) All the conspirators went to Shekhadi beach on the next day.
iv) Tiger Memon and Javed Chikna brought around 25-30 bags.
v) The appellant boarded the tempo containing arms which had been unloaded at the landing and went to Waghani Tower.
vi) The appellant was present at the Udupi Hotel enroute to Shekhadi along with other conspirators.
Confessional Statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100)
399.3 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. The confession of A-100 with reference to the appellant reveals as under:
(i) On 07/08/09.02.1993, A-100 met Javed Chikna near Bharat Motor Training School and also met the appellant (A-57) there along with other conspirators. A-100 knew the appellant as being a close friend of Javed Chikna.
(ii) The appellant was standing at Bharat Motor Training School. A-100 knew the appellant as he was the friend of Javed Chikna and he had seen the appellant several times with him.
(iii) After sometime, the appellant sat in a jeep on the instructions of Javed Chikna.
(iv) The appellant and other conspirators went to Raigad District in a jeep driven by Yakub Yeda.
(v) The appellant stood at the sea shore with a rifle when the landing was to take place.
(vi) The appellant was in the same car as of A-100 on his way back to Bombay after landing.
(vii) The appellant was present in the flat of Tiger on 11.03.1993.
(viii) The appellant was standing near the car on 12.03.1993 in which A-100 along with the appellant and other conspirators were supposed to go.
Confessional Statement of Gul Mohd. @ Gullu Noor Mohd. Shaikh (A-77)
399.4 Confessional statement of A-77 has been recorded on 17.04.1993 (14:10 hrs.) and 19.04.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-77 with reference to the appellant is as under:
(i) A-77 stated that the appellant is his friend for the last two years and was also his neighbour. The appellant introduced him to Bashir.
(ii) On 04/05.02.1993, the appellant and A-13 asked A-77 if he had a passport and told that we had to go to Dubai and Pakistan.
(iii) A-77 replied in affirmative and then the appellant and Bashir took him to Mahim where he met Javed Chikna.
(iv) Thereafter, they went to a place near the Mahim Police Station where they met a bearded man who on seeing the passport asked if A-77 was willing to do the daring work.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
399.5 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. The confession of A-98 corroborates with the fact that the appellant participated in the survey of BMC office as a prospective target and had accompanied Javed Chikna, Babloo, Bashir and him (A-98) when Javed explained the entire plan about how to enter from the front gate and reaching the Shiv Sena and BJP offices and to fire and then the way to exit from the back door.
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
399.6 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 DCP, Zone III, Bombay. The confession of A-13 corroborates the fact that the appellant was present at the house of Tiger in the night intervening 11/12.03.1993 along with other conspirators and also on 12.03.1993.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
399.7 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. The confession of A-32 corroborates the fact that the appellant was present at the house of Tiger in the night intervening 11/12.03.1993 along with other conspirators and also on 12.03.1993 and left with the conspirators at about 2:30 pm.
Confessional Statement of Abdul Khan @ Yakub Khan Akhtar Khan (A-36)
399.8 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-36 corroborates the fact that the appellant was present at Al-Hussaini on 12.03.1993 along with PW-2, A-13 and others.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (10:00 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-23 with reference to the appellant is as under:-
(i) The appellant attended the meeting at a flat in Bandra alongwith other conspirators including Tiger Memon where plans were discussed.
(ii) The appellant was present in the house of Tiger on 11.03.1993.
400. A perusal of the confessional statements of all the above accused, viz., A-16, A-64, A-100, A-77, A-98, A-13, A-32, A-36, and A-23 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-57). All these materials clearly establish that the appellant committed the following overt acts:-
(i) He participated in the landing and transportation of arms and ammunitions and explosives at Shekhadi on 03.02.1993 and 07.02.1993 and also in the transportation of the same to the Tower;
(ii) He attended conspiratorial meeting;
(iii) He participated in the preparation of vehicle bombs by filling and loading explosives like RDX with time device detonators in the night intervening 11/12.03.1993;
(iv) The appellant was actively involved in the conspiracy as he was introducing new members in the conspiracy.
(v) He got A-77 into the conspiracy;
(vi) He along with other co-accused did reconnaissance of the BMC building and the Stock Exchange Building which were marked as prospective targets for planting bombs.
(vii) The appellant, on the fateful day, travelled in a Maruti Van loaded with arms, ammunitions, hand grenades and explosives with intent to conduct terrorist acts at BMC building and other places and abandoned the same near the gate of Siemens factory.
(viii) The appellant was an important member of the team of conspirators as he was also aware that people were sent to Dubai and Pakistan by Tiger Memon for daring works
Deposition of Prosecution Witnesses:
401. 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 Mohd. Usman Jan Khan (PW-2)
401.1 The relevant material in his evidence is as follows:-
(i) He stated that he knew the appellant.
(ii) He identified the appellant before the Court.
(iii) The appellant came to Hotel Persian Darbar on 10.02.1993 along with other conspirators after the landing of arms and explosives at Shekhadi.
(iv) Tiger instructed the appellant to go back to Bombay.
(v) On 11.03.1993, at Al-Hussaini Building, Tiger instructed the appellant, Javed Chikna and others to go to BMC building which had been identified as a target.
(vi) On 12.03.1993, the appellant was present in the flat of Tiger.
(vii) On 12.03.1993, the appellant was in the same group as of PW-2 and Javed Chikna.
(viii) The appellant, PW-2, Javed Chikna, Bashir Khan and Babloo left in a Maruti Van loaded with AK-56 rifles, detonators, hand grenades and magazines for BMC building on 12.03.1993.
(ix) On 12.03.1993, Javed Chikna gave Rs. 5,000/- to the appellant and asked him to leave Bombay for Ahmednagar.
(x) The appellant was present at Al-Hussaini on 12.03.1993 and was given money by Javed Chikna
(xi) The appellant threw the detonator out of the Maruti Van on the road on 12.03.1993 and when their Van got damaged due to the blast, they got scared and parked the Van and left in a taxi.
402. It was contended on behalf of the learned counsel for the appellant that the approver has not specifically named the appellant and he has not been identified by him. A perusal of the aforesaid deposition clearly establishes that the appellant has been specifically named and identified by PW-2-the Approver.
403. Further, it has also been contended that the approver has not named the appellant amongst the people who were filling the explosives in the vehicles in the garage of Al-Hussaini building in the night intervening 11/12.03.1993. The confession of the appellant himself establishes his involvement in the incident of filling and mere omission on the part of the Approver in not naming the appellant would not be a reason to disbelieve the confessional statement of the appellant.
Deposition of Krishan Lal Bishnoi (PW-193)
403.1 PW-193, the then Deputy Commissioner of Police deposed as a witness before the Court as follows:
(i) He recollected that he had recorded the confession of the appellant (A-57).
(ii) He asked the questions in Hindi language since the appellant (A-57) spoke in Hindi. He (PW-193) and A-57 were the only persons in the room where confession was recorded.
(iii) The appellant was ready to make a voluntary confession.
(iv) The appellant was told that his confession can be used as evidence against him.
(v) He recognized the confession in the court and other related documents.
(vi) In the cross-examination, he stated that all precautions were taken for recording the confession and the same was sent to the CMM.
(vii) He agreed that he did not obtain the initials of A-57 at certain places in the confession.
403.2 This deposition establishes that the confession of the appellant was recorded with full compliance of the provisions of TADA. It also establishes that the confession was voluntary.
Deposition of Madhav Shivaji Rao Surve (PW-572)
403.3 PW-572 was the person who arranged for the TIP of the appellant. He deposed before the Court for the same as under:
(i) He arranged the TIP in respect of A-57 and other co-accused who were in judicial custody.
(ii) He wrote a letter to Shri Moreshwar Thakur (PW-469), Special Executive Magistrate, for conducting the TIP on 23.09.1993 at Arthur Road prison.
(iii) He organized the TIP at Arthur Road prison on 29.03.1993 and after that handed over the memorandum panchnama to Shri Chavan, Deputy Superintendent of Police.
Deposition of Moreshwar Gopal Thakur (PW-469)
403.4 PW 469, Special Executive Magistrate, conducted the TIP on 23.09.1993 at Central Jail, Arthur Road for the identification of the appellant. The witnesses, viz., Rajaram Ramchandra Kadam (PW-106) and Tukaram Babu Nagaonkar (PW-176) identified the appellant as the person who took training in handling of arms and ammunitions at Chinchechamal. Further, Pandurang Bandu Jadhav and Balya Ratna Jadhav also identified the appellant as the person who along with other co-accused alighted from a Jeep, took the belongings and went towards Chinchechamal. His deposition reveals as under:
(i) He conducted a TIP on 23.09.1993 at the Arthur Road Jail after receiving a letter from PW-572.
(ii) He, however, did not remember the names of panch witnesses, suspects or identifying witnesses.
(iii) He identified the memorandum parade panchnama prepared on 23.09.1993, before the Court.
Deposition of Divakar Ramakwal Mishra (PW 415)
403.5 PW-415 was the Security Guard on duty at the Siemens Factory on 12.03.1993. He deposed as follows:-
(i) He spotted a Maruti van parked outside the Siemens factory. He informed the Police which came after one hour at the spot.
(ii) He was unable to identify the accused persons in TIP conducted on 04.04.1993 since he had not seen any of them. He denied having identified A-57.
Deposition of Gulabrao Tatojirao Kadam (PW 461)
403.6 At the relevant time, PW-461 was a SEM and conducted TIP on 04.04.1993 at Sacred Hearts School, Worli. Sabhajeet Singh and Diwakar Mishra identified the appellant to be the person who left one Maruti Van No. 14 FC-1972 near the Company on 12.03.1993. Further, the witnesses, viz., Jagat Singh Veer Bahadur Singh and Bhadur Jagat Singh identified the appellant to be the person who was loading the goods in the vehicles in the night intervening 11/12.03.1993 at Al-Hussaini building.
Deposition of Narayan D. More (PW 46)
403.7 PW 46, a panch witness, deposed regarding the recovery of the Maruti Van outside the Siemens Factory. His deposition reveals as under:
(i) He was an electronic goods mechanic;
(ii) He was the panch witness to the recovery from the Maruti Van at Siemens factory on 12.03.1993.
(iii) He noticed 2 plastic bags in the Van. One bag was opened and was found to contain 7 rifles. The second bag contained 4 bombs and 14 magazines.
(iv) He also noticed two white bags in the front row of the Van and a bag of dates, water bottles etc.
(v) Exhibit 190 is the spot panchnama prepared by the police documenting recoveries from the Maruti Van.
Deposition of Dinesh Parshuram Kadam (PW 371)
403.8 PW-371 was a Detection Officer at the Worli Police Station when the blasts took place. His deposition reveals that:
(i) After receiving information, he went to Siemens factory on 12.03.1993 and saw a Maruti Van bearing number MFC 1972.
(ii) 2 black bags were found from the Van containing 7 AK-56 rifles, 4 hand grenades, 14 magazines and Xerox copies of the registration papers of the Van bearing registration no. MFC 1972.
(iii) He, thereafter, lodged an FIR at Worli Police station.
(iv) The registration of Van revealed that the van was in the name of Rubina Memon residing at Al-Hussaini building.
403.9 His statement corroborates with the statement of the above mentioned witnesses. It is thus established that the appellant had gone to the Siemens Factory on 12.03.1993 in the maroon coloured Maruti Van bearing no. MFC 1972. The identification of the appellant as the person who was present in the Maruti Van around the time of the incident by eye witnesses further establishes his involvement in the conspiracy. The fact, as revealed in his confession, that he was on his way to the Bombay Municipal Corporation building to kill people also stands proved. The FIR (Exhibit 1315) corroborates the deposition of PW-371.
Deposition of Nandkumar Anant Chaugule (PW 444)
403.10 At the relevant time, PW-444 was the In-charge, Senior Inspector of Police, Bomb Detection and Disposal Squad (BDDS) of CIDIntelligence, Bombay. He stated that:
(i) He was an officer of the BDDS. He received information of a suspicious Maruti Van behind Siemens Company at Worli.
(ii) By using a rope and a hook, he opened the door of the Van and found 2 black bags containing AK-56 rifles, 4 hand grenades and magazines.
404. With regard to the above statements of various witnesses on the side of the prosecution, learned counsel for the appellant submitted that there is no specific evidence about the appellants taking part in any training at Sanderi or Borghat or participating in landing and transportation of arms and ammunitions and explosives at Borghat and Shekhadi on 3rd and 7th of February, 1993. According to him, the eye witnesses were silent regarding the appellants participation in landing and transportation of arms and ammunitions which landed at Shekhadi on 03/04.02.1993 and, as such, there is no material on record in the form of eye witnesses testimony. Likewise, there is no mention by any of the persons who attended the meeting at the residence of Shakeel about the appellant having participated in the said meeting, hence, the prosecution case has not been substantiated. He further pointed out that the approvers testimony is silent about the presence of the appellant in the meeting at the residence of Mobina and Babloo and with respect to filling of RDX in the vehicles.
405. The abovesaid evidence establish that the appellant (A-57) was a member of the conspiracy which resulted in the blasts and acts which took place in Bombay on 12.03.1993. He played an active role in the conspiracy. The involvement of the appellant in various aspects of the conspiracy can be summarized below:
(i) The landing of arms and ammunitions and explosives at Shekhadi;
(ii) The transportation of arms and ammunitions and explosives which had landed at Shekhadi;
(iii) He took training in handling weapons and explosives at Sandheri;
(iv) He participated in the survey/reconnaissance of the Bombay Municipal Corporation building conducted on 09.03.1993;
(v) He attended conspiratorial meetings that took place to further the common motives of the conspirators and to decide the plan of action to meet the ends of the conspiracy;
406. It is thus established that the appellant played a significant role in the conspiracy and knew about the intention of the conspirators well before the incidents took place. The appellant shared the motive and the intention along with the other conspirators and was committed to achieve the ultimate goal of the conspiracy.
Sentence:
407. According to the prosecution, the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 10.10.2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) He had been in custody for 13 years since his arrest in March, 1993;
(ii) After the demolition of the Babri Masjid, riots had ensued and he shifted to his fathers residence;
(iii) Thereafter, the locality of Behrampada was attacked and houses were burnt and because of the same, his wife and children had to shift to Alunednagar;
(iv) After his savings were exhausted, he came to Bombay on 9th March, 1993 for taking money from his friend Javed Chikna;
(v) He worked with Javed Chikna and could not run away as he needed money;
(vi) He had confessed before the police and told them about everything which he had seen;
(vii) The main advocate, defending him in the case, left at a crucial juncture;
(viii) He only has his wife and children, who are totally dependent on him.
408. A perusal of the judgment of the Designated Court shows that all the above factors have been duly considered by the Designated Judge. As rightly pointed out by the prosecution, the aforesaid contentions are devoid of any merit having regard to the fact that the appellant had the knowledge that the smuggled goods had sufficient potential for commission of terrorist acts, owing to the fact that he had also acquired training in handling sophisticated arms and ammunitions. Further, it was contended that the appellant was forced by circumstances to work with Javed Chikna, is not tenable as despite being needy and requiring money at the time of first landing, he got to know that the first landing was of arms and ammunitions and explosives which were capable of causing mass destruction, he chose to remain silent instead of approaching the police or taking recourse to law. Despite all this, he participated in the second landing at Shekhadi, and moreover, he went to Sandheri and took training in handling of arms, ammunition and explosives.
409. The appellant attended crucial conspiratorial meetings also. On the night of 11/12.03.1993, he participated in the filling of RDX in vehicles for the preparation of vehicle bombs. He also introduced Gul Mohmed (A-77) in the conspiracy and got him recruited for training in handling of arms and ammunitions and explosives at Pakistan. The appellant also undertook reconnaissance of the B.M.C. building and the Stock Exchange building along with A-44, PW-2, Javed Chikna and Tiger Memon, which were marked as targets for planting bombs.
410. The appellants guilt is further established by the fact revealed in his confession that after the blasts, he left Bombay and went to Ahmednagar. This establishes that he knew that whatever the conspirators had done was wrong and contrary to law. Thus, his claim that he disassociated himself at the time of the first landing at Shekhadi has not been made out in the light of other evidence on record. In fact, he was engaged in the commission of acts furthering the object of such a heinous conspiracy.
411. The appellant participated in the acts mentioned above willingly and with complete knowledge. He knew that the arms and ammunitions, RDX and hand grenades, which were smuggled into India at Shekhadi would be used for committing terrorist acts. It is clearly established from his confession that Tiger Memon had told his associates that the smuggled arms were to be used against Hindus to take revenge for the demolition of Babri Masjid and that they would be used for causing blasts in Bombay.
412. In the light of the above, we hold that the conviction and sentence awarded by the Designated Court to the appellant is justified and there is no ground for interference. Consequently, the appeal is accordingly dismissed.
390. The present appeal is directed against the final judgment and order of conviction and sentence dated 06.10.2006 and 07.06.2007 respectively, whereby the appellant (A-57) 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:
391. A common charge of conspiracy was framed against all the co-conspirators including the appellant. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (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 Machhimar 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.
391.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly; The accused committed an offence punishable under section 3(3) of TADA by committing the following overt acts:
(a) He participated in the landing and transportation of arms, ammunitions and explosives at Shekhadi on 03.02.1993 and 07.02.1993;
(b) He participated in weapons training at Borghat and Sandheri District Raigarh;
(c) He attended conspiratorial meetings at the house of Nasir Ahmed Anwar Sheikh @ Babloo (AA) and Ms. Mobina @ Baya Moosa Bhiwandiwala (A-96);
(d) He participated in the preparation of vehicle bombs by filling and loading explosives like RDX with time device detonators in the night intervening 11/12.03.1993;
(e) He got Gul Mohmed @ Gullu Noor Mohammed Shaikh (A-77) into the conspiracy ; and
(f) He along with other co-accused did reconnaissance of the BMC building and stock exchange building which were marked as targets for planting bombs.
At head thirdly; The appellant accompanied other conspirators in a red coloured Maruti Van No. MFC 1972 loaded with arms, ammunition, hand grenades and explosives with an intent to conduct terrorist acts at BMC building and other places and abandoned the same near the gate of Siemens factory and thereby committed an offence punishable under Section 3(3) of TADA
At head fourthly; The appellant was in illegal possession of 7 AK-56 rifles, 14 magazines, 4 hand grenades and 2 detonators, unauthorisedly in notified area of Greater Bombay and thereby committed an offence under Section 5 of TADA;
At head fifthly; The appellant, by possessing the aforesaid arms and ammunitions, contravened the provisions of the Arms Act, 1959, Explosives Act, 1884, Explosives Rules, 1983 and The Explosive Substances Act, 1908 and thereby committed an office under Section 6 of TADA.
392. The Designated Judge found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the above said charges as 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 alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months for the commission of offence under Section 3(3) of TADA and Section 120B of IPC. (charge firstly)
ii) The appellant has been convicted for commission of offence under section 3(3) of TADA for commission of acts mentioned at head secondly and sentenced to RI for 14 years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge secondly)
iii) The appellant has been convicted and sentenced to RI for 10 years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months under Section 3(3) of TADA. (charge thirdly)
iv) The appellant has been convicted and sentenced to RI for 7 years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months under Section 5 of TADA. (charge fourthly)
v) The appellant has been convicted and sentenced to RI for 9 years alongwith a fine of Rs. 50,000/-, in default, to further undergo RI for a period of 1 year under Section 6 of TADA (charge fifthly).
Evidence
393. The evidence against the appellant (A-57) 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.
394. Mr. Aabad Ponda, learned counsel appearing for the appellant-accused submitted that though confession under TADA is admissible, yet it is a very weak piece of evidence since the police extract confessions by using third degree methods. He also submitted that unless the person who is confessing shows that he is in express remorse or sadness or if there is a total emotional break down and he is ready to face any consequence to tell the truth, it cannot be called or regarded as a confession in law. He further pointed out that unless a confession is voluntary, it cannot be relied upon. He also contended that as per the decision of the Constitution Bench of this Court in Kartar Singh (supra), one cannot start with the confession of co-accused but it must be established based upon other evidence.
395. Inasmuch as similar contentions have been elaborately dealt with by us in earlier paragraphs, applying and reiterating the same principles, we are not once again repeating the same.
Confessional statement of Shaikh Ali Shaikh Umar (A-57)
396. The involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay.A brief summary of the said confession is as follows:
(i) At the relevant time, he was 28 years old and was a resident of Bahrampada, Bandra East and was working as a moulder in Central Railway Workshop.
(ii) He was a childhood friend of Javed Chikna and they lived in the same colony. He also got acquainted with Bashir Ahmed Usman Gani Khairulla (A-13), Mohammed Usman Jan Khan (PW-2), Sardar Shawali Khan (A-54), Anwar, Asgar Yusuf Mukadam (A-10) and Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), who were the friends of Javed Chikna.
(iii) He along with A-13, PW-2, A-54, Anwar, A-10 and A-46 was introduced to Tiger Memon by Javed Chikna.
(iv) He also got acquainted with other co-accused at Tigers office.
(v) He, along with Javed Chikna and other co-accused, travelled to Ajmer in July-August along with 3 Pakistani nationals, out of whom, 2 got down 200 kms before Ajmer.
(vi) After reaching Ajmer, he told Javed Chikna about the Pakistani nationals.
(vii) At that time, A-57 and others guessed that Tiger and Javed Chikna were doing some illegal work along with Pakistani Nationals.
(viii) He even after that continued to meet with Javed Chikna and his friends.
(ix) During the riots, he was with the rioters.
(x) He introduced Gul Mohammed @ Gullu Noor Mohammed Shaikh (A-77) to Javed Chikna who, in turn, introduced A-77 to Tiger Memon.
(xi) On 08/09.02.1993, he along with other conspirators and Tiger Memon drove towards Goa Highway.
(xii) He was standing with a rifle while Tiger and other accused persons came with goods in a tempo. The appellant also sat on the goods in the tempo.
(xiii) They all slept at the Tower that night.
(xiv) In the appellants presence, Tiger Memon opened a hanging bag from the tempo which contained small bullets for pistol.
(xv) He dropped Javed at the Airport on 12.03.1993, and thereafter, he left for Dubai.
(xvi) On 09.03.1993, he along with Javed, PW-2 and other conspirators participated in the survey of BMC building as a prospective target.
(xvii) Javed told the appellant about a meeting in Bandra on 09.03.1993. He attended the said meeting.
(xviii) Tiger spoke about taking revenge and gave a provoking lecture and also gave Rs. 5,000/- to everyone present there.
(xix) The appellant again reached the residence of Tiger Memon.
(xx) Javed told the appellant that his group has to fire Machine Guns at people sitting in the BMC office and the Shiv Sena office and the role of the appellant was to stand at the door with a hand grenade and to keep a vigil. The appellant denied the same but agreed to sit with the driver.
(xxi) The appellant came down in the garage and noticed other conspirators loading RDX in vehicles on the night of 11.03.1993.
(xxii) Tiger left later that night.
(xxiii) The appellant also assisted in filling RDX in the vehicles by loading iron pieces.
(xxiv) He also described the scene at Al-Hussaini building on 12.03.1993 and also that rifles were packed in the goni.
(xxv) The appellant also kept packets of black soap in the dickey of red coloured Maruti car.
(xxvi) The appellant and Mohammed Moin Faridulla Qureshi (A-43) kept the rifles and cassettes in Maruti car no. MFC 1972 on 12.03.1993.
(xxvii) Thereafter, the appellant along with other conspirators left in the red Maruti Van for BMC office and the plan got cancelled because they did not have bullets.
(xxviii) A blast occurred near the passport office and because of the same the glass of Maruti car in which the appellant and other conspirators were sitting was blown off. They parked the car in a lane and hired a taxi.
(xxix) The appellant then met Javed who told him that explosions have happened and gave him Rs. 5,000/- and asked him to go to Ahmednagar.
397. A perusal of the confession of the appellant shows that he guarded the area at the time when landing of arms, ammunition and explosives took place at Shekhadi. He filled iron scraps and RDX in vehicles in the intervening night of 11/12.03.1993. He attended conspiratorial meetings and also conducted reconnaissance of the B.M.C. building and on the fateful day he travelled in a Maruti Van loaded with arms, ammunitions, hand grenades and explosives with intent to conduct terrorist acts at BMC building and other places and abandoned the same near the gate of Siemens factory.
Confessional Statements of co-accused:
398. As regards the confessional statements of co-accused, Mr. Aabads Ponda again while relying on the judgments of this Court in Kartar Singh (supra) and Navjot Sandhu (supra) contended that the law in Nalinis case (supra) and other subsequent judgments relying on Nalinis judgment do not lay down the correct law as they have not appreciated Kartar Singhs case in its proper perspective, consequently, the confession of co-accused cannot be pressed into service. The same objection and the dictum laid down in Kartar Singhs case and Navjot Sandhus case as well as Nalinis case and subsequent judgments have been considered by this Court in the earlier part of our judgment, hence, there is no need to analyse the same once again.
399. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-57) are summarized hereinbelow:
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
399.1 Confessional statement of A-16 under section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. A perusal of his confessional statement corroborates the statement of the appellant to the effect that he travelled to Shekhadi along with co-accused and that he was given a rifle by Tiger Memon to keep a guard at the coast while landing was taking place, whereafter, he along with others went to the Tower with the landed goods in the Tempo and slept at the Tower.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
399.2 Confessional statement of A-64 under section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by Shri HC Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. A-64, in his confessional statement, stated as under
i) He stated that he had seen the appellant at the reception of Yakub Abdul Razak Memon (A-1) and Ayub Memon, brothers of Tiger Memon.
ii) The appellant was present at Hotel Big Splash, Alibaug in the first week of February along with Javed Chikna and other conspirators.
iii) All the conspirators went to Shekhadi beach on the next day.
iv) Tiger Memon and Javed Chikna brought around 25-30 bags.
v) The appellant boarded the tempo containing arms which had been unloaded at the landing and went to Waghani Tower.
vi) The appellant was present at the Udupi Hotel enroute to Shekhadi along with other conspirators.
Confessional Statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100)
399.3 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. The confession of A-100 with reference to the appellant reveals as under:
(i) On 07/08/09.02.1993, A-100 met Javed Chikna near Bharat Motor Training School and also met the appellant (A-57) there along with other conspirators. A-100 knew the appellant as being a close friend of Javed Chikna.
(ii) The appellant was standing at Bharat Motor Training School. A-100 knew the appellant as he was the friend of Javed Chikna and he had seen the appellant several times with him.
(iii) After sometime, the appellant sat in a jeep on the instructions of Javed Chikna.
(iv) The appellant and other conspirators went to Raigad District in a jeep driven by Yakub Yeda.
(v) The appellant stood at the sea shore with a rifle when the landing was to take place.
(vi) The appellant was in the same car as of A-100 on his way back to Bombay after landing.
(vii) The appellant was present in the flat of Tiger on 11.03.1993.
(viii) The appellant was standing near the car on 12.03.1993 in which A-100 along with the appellant and other conspirators were supposed to go.
Confessional Statement of Gul Mohd. @ Gullu Noor Mohd. Shaikh (A-77)
399.4 Confessional statement of A-77 has been recorded on 17.04.1993 (14:10 hrs.) and 19.04.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-77 with reference to the appellant is as under:
(i) A-77 stated that the appellant is his friend for the last two years and was also his neighbour. The appellant introduced him to Bashir.
(ii) On 04/05.02.1993, the appellant and A-13 asked A-77 if he had a passport and told that we had to go to Dubai and Pakistan.
(iii) A-77 replied in affirmative and then the appellant and Bashir took him to Mahim where he met Javed Chikna.
(iv) Thereafter, they went to a place near the Mahim Police Station where they met a bearded man who on seeing the passport asked if A-77 was willing to do the daring work.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
399.5 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. The confession of A-98 corroborates with the fact that the appellant participated in the survey of BMC office as a prospective target and had accompanied Javed Chikna, Babloo, Bashir and him (A-98) when Javed explained the entire plan about how to enter from the front gate and reaching the Shiv Sena and BJP offices and to fire and then the way to exit from the back door.
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
399.6 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 DCP, Zone III, Bombay. The confession of A-13 corroborates the fact that the appellant was present at the house of Tiger in the night intervening 11/12.03.1993 along with other conspirators and also on 12.03.1993.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
399.7 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. The confession of A-32 corroborates the fact that the appellant was present at the house of Tiger in the night intervening 11/12.03.1993 along with other conspirators and also on 12.03.1993 and left with the conspirators at about 2:30 pm.
Confessional Statement of Abdul Khan @ Yakub Khan Akhtar Khan (A-36)
399.8 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-36 corroborates the fact that the appellant was present at Al-Hussaini on 12.03.1993 along with PW-2, A-13 and others.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (10:00 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-23 with reference to the appellant is as under:-
(i) The appellant attended the meeting at a flat in Bandra alongwith other conspirators including Tiger Memon where plans were discussed.
(ii) The appellant was present in the house of Tiger on 11.03.1993.
400. A perusal of the confessional statements of all the above accused, viz., A-16, A-64, A-100, A-77, A-98, A-13, A-32, A-36, and A-23 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-57). All these materials clearly establish that the appellant committed the following overt acts:-
(i) He participated in the landing and transportation of arms and ammunitions and explosives at Shekhadi on 03.02.1993 and 07.02.1993 and also in the transportation of the same to the Tower;
(ii) He attended conspiratorial meeting;
(iii) He participated in the preparation of vehicle bombs by filling and loading explosives like RDX with time device detonators in the night intervening 11/12.03.1993;
(iv) The appellant was actively involved in the conspiracy as he was introducing new members in the conspiracy.
(v) He got A-77 into the conspiracy;
(vi) He along with other co-accused did reconnaissance of the BMC building and the Stock Exchange Building which were marked as prospective targets for planting bombs.
(vii) The appellant, on the fateful day, travelled in a Maruti Van loaded with arms, ammunitions, hand grenades and explosives with intent to conduct terrorist acts at BMC building and other places and abandoned the same near the gate of Siemens factory.
(viii) The appellant was an important member of the team of conspirators as he was also aware that people were sent to Dubai and Pakistan by Tiger Memon for daring works
Deposition of Prosecution Witnesses:
401. 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 Mohd. Usman Jan Khan (PW-2)
401.1 The relevant material in his evidence is as follows:-
(i) He stated that he knew the appellant.
(ii) He identified the appellant before the Court.
(iii) The appellant came to Hotel Persian Darbar on 10.02.1993 along with other conspirators after the landing of arms and explosives at Shekhadi.
(iv) Tiger instructed the appellant to go back to Bombay.
(v) On 11.03.1993, at Al-Hussaini Building, Tiger instructed the appellant, Javed Chikna and others to go to BMC building which had been identified as a target.
(vi) On 12.03.1993, the appellant was present in the flat of Tiger.
(vii) On 12.03.1993, the appellant was in the same group as of PW-2 and Javed Chikna.
(viii) The appellant, PW-2, Javed Chikna, Bashir Khan and Babloo left in a Maruti Van loaded with AK-56 rifles, detonators, hand grenades and magazines for BMC building on 12.03.1993.
(ix) On 12.03.1993, Javed Chikna gave Rs. 5,000/- to the appellant and asked him to leave Bombay for Ahmednagar.
(x) The appellant was present at Al-Hussaini on 12.03.1993 and was given money by Javed Chikna
(xi) The appellant threw the detonator out of the Maruti Van on the road on 12.03.1993 and when their Van got damaged due to the blast, they got scared and parked the Van and left in a taxi.
402. It was contended on behalf of the learned counsel for the appellant that the approver has not specifically named the appellant and he has not been identified by him. A perusal of the aforesaid deposition clearly establishes that the appellant has been specifically named and identified by PW-2-the Approver.
403. Further, it has also been contended that the approver has not named the appellant amongst the people who were filling the explosives in the vehicles in the garage of Al-Hussaini building in the night intervening 11/12.03.1993. The confession of the appellant himself establishes his involvement in the incident of filling and mere omission on the part of the Approver in not naming the appellant would not be a reason to disbelieve the confessional statement of the appellant.
Deposition of Krishan Lal Bishnoi (PW-193)
403.1 PW-193, the then Deputy Commissioner of Police deposed as a witness before the Court as follows:
(i) He recollected that he had recorded the confession of the appellant (A-57).
(ii) He asked the questions in Hindi language since the appellant (A-57) spoke in Hindi. He (PW-193) and A-57 were the only persons in the room where confession was recorded.
(iii) The appellant was ready to make a voluntary confession.
(iv) The appellant was told that his confession can be used as evidence against him.
(v) He recognized the confession in the court and other related documents.
(vi) In the cross-examination, he stated that all precautions were taken for recording the confession and the same was sent to the CMM.
(vii) He agreed that he did not obtain the initials of A-57 at certain places in the confession.
403.2 This deposition establishes that the confession of the appellant was recorded with full compliance of the provisions of TADA. It also establishes that the confession was voluntary.
Deposition of Madhav Shivaji Rao Surve (PW-572)
403.3 PW-572 was the person who arranged for the TIP of the appellant. He deposed before the Court for the same as under:
(i) He arranged the TIP in respect of A-57 and other co-accused who were in judicial custody.
(ii) He wrote a letter to Shri Moreshwar Thakur (PW-469), Special Executive Magistrate, for conducting the TIP on 23.09.1993 at Arthur Road prison.
(iii) He organized the TIP at Arthur Road prison on 29.03.1993 and after that handed over the memorandum panchnama to Shri Chavan, Deputy Superintendent of Police.
Deposition of Moreshwar Gopal Thakur (PW-469)
403.4 PW 469, Special Executive Magistrate, conducted the TIP on 23.09.1993 at Central Jail, Arthur Road for the identification of the appellant. The witnesses, viz., Rajaram Ramchandra Kadam (PW-106) and Tukaram Babu Nagaonkar (PW-176) identified the appellant as the person who took training in handling of arms and ammunitions at Chinchechamal. Further, Pandurang Bandu Jadhav and Balya Ratna Jadhav also identified the appellant as the person who along with other co-accused alighted from a Jeep, took the belongings and went towards Chinchechamal. His deposition reveals as under:
(i) He conducted a TIP on 23.09.1993 at the Arthur Road Jail after receiving a letter from PW-572.
(ii) He, however, did not remember the names of panch witnesses, suspects or identifying witnesses.
(iii) He identified the memorandum parade panchnama prepared on 23.09.1993, before the Court.
Deposition of Divakar Ramakwal Mishra (PW 415)
403.5 PW-415 was the Security Guard on duty at the Siemens Factory on 12.03.1993. He deposed as follows:-
(i) He spotted a Maruti van parked outside the Siemens factory. He informed the Police which came after one hour at the spot.
(ii) He was unable to identify the accused persons in TIP conducted on 04.04.1993 since he had not seen any of them. He denied having identified A-57.
Deposition of Gulabrao Tatojirao Kadam (PW 461)
403.6 At the relevant time, PW-461 was a SEM and conducted TIP on 04.04.1993 at Sacred Hearts School, Worli. Sabhajeet Singh and Diwakar Mishra identified the appellant to be the person who left one Maruti Van No. 14 FC-1972 near the Company on 12.03.1993. Further, the witnesses, viz., Jagat Singh Veer Bahadur Singh and Bhadur Jagat Singh identified the appellant to be the person who was loading the goods in the vehicles in the night intervening 11/12.03.1993 at Al-Hussaini building.
Deposition of Narayan D. More (PW 46)
403.7 PW 46, a panch witness, deposed regarding the recovery of the Maruti Van outside the Siemens Factory. His deposition reveals as under:
(i) He was an electronic goods mechanic;
(ii) He was the panch witness to the recovery from the Maruti Van at Siemens factory on 12.03.1993.
(iii) He noticed 2 plastic bags in the Van. One bag was opened and was found to contain 7 rifles. The second bag contained 4 bombs and 14 magazines.
(iv) He also noticed two white bags in the front row of the Van and a bag of dates, water bottles etc.
(v) Exhibit 190 is the spot panchnama prepared by the police documenting recoveries from the Maruti Van.
Deposition of Dinesh Parshuram Kadam (PW 371)
403.8 PW-371 was a Detection Officer at the Worli Police Station when the blasts took place. His deposition reveals that:
(i) After receiving information, he went to Siemens factory on 12.03.1993 and saw a Maruti Van bearing number MFC 1972.
(ii) 2 black bags were found from the Van containing 7 AK-56 rifles, 4 hand grenades, 14 magazines and Xerox copies of the registration papers of the Van bearing registration no. MFC 1972.
(iii) He, thereafter, lodged an FIR at Worli Police station.
(iv) The registration of Van revealed that the van was in the name of Rubina Memon residing at Al-Hussaini building.
403.9 His statement corroborates with the statement of the above mentioned witnesses. It is thus established that the appellant had gone to the Siemens Factory on 12.03.1993 in the maroon coloured Maruti Van bearing no. MFC 1972. The identification of the appellant as the person who was present in the Maruti Van around the time of the incident by eye witnesses further establishes his involvement in the conspiracy. The fact, as revealed in his confession, that he was on his way to the Bombay Municipal Corporation building to kill people also stands proved. The FIR (Exhibit 1315) corroborates the deposition of PW-371.
Deposition of Nandkumar Anant Chaugule (PW 444)
403.10 At the relevant time, PW-444 was the In-charge, Senior Inspector of Police, Bomb Detection and Disposal Squad (BDDS) of CIDIntelligence, Bombay. He stated that:
(i) He was an officer of the BDDS. He received information of a suspicious Maruti Van behind Siemens Company at Worli.
(ii) By using a rope and a hook, he opened the door of the Van and found 2 black bags containing AK-56 rifles, 4 hand grenades and magazines.
404. With regard to the above statements of various witnesses on the side of the prosecution, learned counsel for the appellant submitted that there is no specific evidence about the appellants taking part in any training at Sanderi or Borghat or participating in landing and transportation of arms and ammunitions and explosives at Borghat and Shekhadi on 3rd and 7th of February, 1993. According to him, the eye witnesses were silent regarding the appellants participation in landing and transportation of arms and ammunitions which landed at Shekhadi on 03/04.02.1993 and, as such, there is no material on record in the form of eye witnesses testimony. Likewise, there is no mention by any of the persons who attended the meeting at the residence of Shakeel about the appellant having participated in the said meeting, hence, the prosecution case has not been substantiated. He further pointed out that the approvers testimony is silent about the presence of the appellant in the meeting at the residence of Mobina and Babloo and with respect to filling of RDX in the vehicles.
405. The abovesaid evidence establish that the appellant (A-57) was a member of the conspiracy which resulted in the blasts and acts which took place in Bombay on 12.03.1993. He played an active role in the conspiracy. The involvement of the appellant in various aspects of the conspiracy can be summarized below:
(i) The landing of arms and ammunitions and explosives at Shekhadi;
(ii) The transportation of arms and ammunitions and explosives which had landed at Shekhadi;
(iii) He took training in handling weapons and explosives at Sandheri;
(iv) He participated in the survey/reconnaissance of the Bombay Municipal Corporation building conducted on 09.03.1993;
(v) He attended conspiratorial meetings that took place to further the common motives of the conspirators and to decide the plan of action to meet the ends of the conspiracy;
406. It is thus established that the appellant played a significant role in the conspiracy and knew about the intention of the conspirators well before the incidents took place. The appellant shared the motive and the intention along with the other conspirators and was committed to achieve the ultimate goal of the conspiracy.
Sentence:
407. According to the prosecution, the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 10.10.2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) He had been in custody for 13 years since his arrest in March, 1993;
(ii) After the demolition of the Babri Masjid, riots had ensued and he shifted to his fathers residence;
(iii) Thereafter, the locality of Behrampada was attacked and houses were burnt and because of the same, his wife and children had to shift to Alunednagar;
(iv) After his savings were exhausted, he came to Bombay on 9th March, 1993 for taking money from his friend Javed Chikna;
(v) He worked with Javed Chikna and could not run away as he needed money;
(vi) He had confessed before the police and told them about everything which he had seen;
(vii) The main advocate, defending him in the case, left at a crucial juncture;
(viii) He only has his wife and children, who are totally dependent on him.
408. A perusal of the judgment of the Designated Court shows that all the above factors have been duly considered by the Designated Judge. As rightly pointed out by the prosecution, the aforesaid contentions are devoid of any merit having regard to the fact that the appellant had the knowledge that the smuggled goods had sufficient potential for commission of terrorist acts, owing to the fact that he had also acquired training in handling sophisticated arms and ammunitions. Further, it was contended that the appellant was forced by circumstances to work with Javed Chikna, is not tenable as despite being needy and requiring money at the time of first landing, he got to know that the first landing was of arms and ammunitions and explosives which were capable of causing mass destruction, he chose to remain silent instead of approaching the police or taking recourse to law. Despite all this, he participated in the second landing at Shekhadi, and moreover, he went to Sandheri and took training in handling of arms, ammunition and explosives.
409. The appellant attended crucial conspiratorial meetings also. On the night of 11/12.03.1993, he participated in the filling of RDX in vehicles for the preparation of vehicle bombs. He also introduced Gul Mohmed (A-77) in the conspiracy and got him recruited for training in handling of arms and ammunitions and explosives at Pakistan. The appellant also undertook reconnaissance of the B.M.C. building and the Stock Exchange building along with A-44, PW-2, Javed Chikna and Tiger Memon, which were marked as targets for planting bombs.
410. The appellants guilt is further established by the fact revealed in his confession that after the blasts, he left Bombay and went to Ahmednagar. This establishes that he knew that whatever the conspirators had done was wrong and contrary to law. Thus, his claim that he disassociated himself at the time of the first landing at Shekhadi has not been made out in the light of other evidence on record. In fact, he was engaged in the commission of acts furthering the object of such a heinous conspiracy.
411. The appellant participated in the acts mentioned above willingly and with complete knowledge. He knew that the arms and ammunitions, RDX and hand grenades, which were smuggled into India at Shekhadi would be used for committing terrorist acts. It is clearly established from his confession that Tiger Memon had told his associates that the smuggled arms were to be used against Hindus to take revenge for the demolition of Babri Masjid and that they would be used for causing blasts in Bombay.
412. In the light of the above, we hold that the conviction and sentence awarded by the Designated Court to the appellant is justified and there is no ground for interference. Consequently, the appeal is accordingly dismissed.
