State of Maharashtra Vs. Tulsi Ram Dondu Surve
Section 3(3) – Conviction under – Bombay Blast case – Accused a chowkidar in Wangni tower – Confessional statement revealing that he allowed Tiger Memon (AA) and A-14 to use the tower for loading/unloading/shifting/keeping contraband for illegal gratification – Got 10 acres of land from A-14 – His statement also revealed his involvement in Shekhadi landing – Conviction under Section 3(3) by designated court – Acquittal in larger conspiracy – Appeal against – Parameters for entertaining. Held accused cannot be held guilty for larger conspiracy.
224. This appeal has been preferred against the judgment and order dated 2.8.2007 passed by Special Judge of the Designated Court under the TADA for Bombay Blast case, Greater Bombay in B.B.C. No.1 of 1993. The respondent Tulsi Ram Dondu Surve (A- 62), has been found guilty for offences punishable under Section 3(3) TADA, and on the said count, has been convicted and sentenced to suffer RI for 9 years and a fine of Rs.50,000/- and in default, to suffer further RI for one year. He has also been found guilty under Section 202 IPC, and sentenced to suffer RI for 6 months and ordered to pay a fine of Rs.5,000/-, and in default of payment of fine, he was ordered to suffer further RI for one month. Both the sentences were directed to run concurrently. However, he has been acquitted for charge of conspiracy.
Hence, this appeal.
225. Shri Mukul Gupta, learned senior counsel appearing for the appellant would submit that the respondent (A-62) was a Watchman – a government servant, at Wangni Tower. He had not only facilitated the unloading of goods smuggled in India, rather served the smugglers by taking money as a consideration for this work. He was fully aware of the contraband material but he did not inform the police authorities about the same. Therefore, he ought to have been held guilty of the charge of conspiracy also.
226. On the contrary, Ms. Farhana Shah, learned counsel appearing for the respondent has opposed the appeal contending that he has already served 5 years of sentence. He did not participate in hatching the conspiracy by attending any conspiratorial meetings. Therefore, this Court should not grant any indulgence, taking into consideration the parameters laid down by this Court for hearing the appeal against order of acquittal. The appeal is liable to be dismissed.
227. We have considered the rival submissions made by learned counsel for the parties and perused the record.
228. Evidence against respondent:
(a) Confessional statement of respondent (A-62)
(b) Confessional statement of Dawood Phanse (A-14)
(c) Confessional statement of Sharif Abdul Gafoor Parkar (A-17)
(d) Deposition of Usman (PW.2)
229. Confessional statement of respondent Tulsi Ram Dondu Surve (A-62) :
In his confessional statement, the respondent revealed that he was working as a Watchman in Wangni Tower. Dawood Phanse (A-14) had become acquainted with him and Tiger Memon (AA) who had been using Wangni Tower for loading, unloading and shifting the contraband from one vehicle to another. Tiger Memon (AA) used to keep the smuggled goods and silver in Wangni Tower. As Harish Chandra Surve (PW.108) and Vijay Govind More (PW.137) had also been working in the same tower as employees, the respondent had persuaded them for helping the smugglers. Payment was made to them from the money received by him for rendering such assistance. He also disclosed that Dawood Phanse (A-14) had purchased 10 acres of land in the name of the accused-respondent (A-62). In respect of the incident of smuggling, he disclosed that one tempo, jeep and Maruti car arrived at the Wangni Tower. Tiger Memon (AA) and his associates Iqbal, Mobin, Anwar, Munna, Shafi were accompanying the vehicles. Silver bricks were shifted from the truck into the tempo. There were gunny bags and boxes covered with clothes also and about 50 bags out of the aforesaid goods remained unloaded. The said bags were taken by the truck of Alware in the field which was in his name and were concealed in the pits by putting soil on it. Dawood Phanse (A-14) had told him that the contraband was Kala Sabun, and he was warned not to disclose the same to any one. Tiger Memon (AA) cut one bundle from the said bundles, and saw the same to ascertain whether the goods were proper or not. He threw the plastic at that place and packed the same in another bundle and took the same with him. Thereafter, on 7.1.1993 again Dawood Phanse had informed the respondent (A-62) that goods were about to arrive and this was being informed to Harish Chandra Surve (PW.108) and Vijay Govind More (PW.137). One truck, three jeeps, one rickshaw and two motor cycles came there alongwith the accused persons, namely, Dawood Phanse (A-14), Dadamiya Parkar (A-17), Sharif Adhikari (A-60), Abdul Gharatkar (A-34) and Tiger Memon (AA). After 5-6 days Dawood Phanse (A-14) had paid him Rs.2,000/- for the assistance. Dawood Phanse (A-14) used to give an amount of Rs.1000/- for each of them i.e. accused, Harish Chandra Surve (PW.108) and Vijay Govind More (PW.137).
230. Confessional statement of Dawood Phanse (A-14) :
The accused Dawood Phanse (A-14) did not name Tulsi Ram Dondu Surve (A-62) but corroborated the incident of unloading and shifting of goods at Wangni Tower.
231. Same remained the position in respect of the confessional statement of Sharif Abdul Gafoor Parkar (A-17). Even the Deposition of Usman (PW.2) corroborated the same.
232. After appreciating the entire evidence, the Designated Court came to the conclusion as under:
59-A – The aforesaid material contained in the confession of A-62 not only reveals his involvement in Shekhadi landing & transportation but also reveals involvement of A-14, 17, 27, 34, 42, 55, 60, PW 108, PW 137 and Tiger Memon. 59-B – The corroborative material to matters contained in confession of A-62 i.e. his involvement in Shekhadi landing & transportation operation for which he is charged with is also found in the confession of co-accused no.17. 59-C – Thus considering material in the confession of A-62 and aforesaid co-accused the same leads to the conclusion of A-62 also being involved in Shekhadi landing operation as denoted by said material and as such having committed offence u/s.3(3) of TADA for which he is charged at head 2ndly clause a and b. Similarly the same evidence also establishes his involvement in commission of offences for which charge was framed at head 3rdly i.e. offence u/s.202 of IPC on count of himself in spite of being watchman and Government servant has still knowingly and intentionally omitted to give information about offences committed in his presence being in possession of contraband material unauthorisedly.
233. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
234. We have given our conscious thought to the facts but are not convinced that the respondent can be held guilty for the charge of larger conspiracy also. We concur with the learned Special Judge so far as the respondent is concerned. The appeal lacks merit and is dismissed accordingly.