The State of Maharashtra, through CBI Vs. Ajai Yash Prakash Marwah (A-120)
EmailAppeal: Criminal Appeal No. 596 of 2011
Petitioner: The State of Maharashtra, through CBI
Respondent: Ajai Yash Prakash Marwah (A-120)
Apeal: Criminal Appeal No. 596 of 2011
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(2)(i)(ii), 3(3), 4, 5, 6, 2, 15 – Penal Code, 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201 and 212 – Arms Act, 1959, Sections 3 & 7 read with Sections 25(1A) and (1B) – Explosives Act, 1884, Section 9B(1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Prevention of Damage to Public Property Act, 1984, Section 4 – Charge under – Accused found in possession of .9 mm pistol Acquitted of all charges – No confessional statement made No link-up found in the confessional statements made by other co-accused Lots of variations in the statement of A125 Various stories projected by prosecution. Held, Designated Court correct in acquitting A120. Recoveries made must be due to the statement made by accused. No nexus found. No supporting evidence to lend support to the statement of A 125.
Sections 3(2)(i)(ii), 3(3), 4, 5, 6, 2, 15 – Penal Code, 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201 and 212 – Arms Act, 1959, Sections 3 & 7 read with Sections 25(1A) and (1B) – Explosives Act, 1884, Section 9B(1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Prevention of Damage to Public Property Act, 1984, Section 4 – Charge under – Accused found in possession of .9 mm pistol Acquitted of all charges – No confessional statement made No link-up found in the confessional statements made by other co-accused Lots of variations in the statement of A125 Various stories projected by prosecution. Held, Designated Court correct in acquitting A120. Recoveries made must be due to the statement made by accused. No nexus found. No supporting evidence to lend support to the statement of A 125.
JUDGEMENT:
Judgment (Contd.)
89. Heard Mr. H.P. Rawal, learned ASG duly assisted by Mr. Satyakam, learned counsel for the appellant (CBI). None appeared for the respondent.
90. The instant appeal is directed against the impugned judgment and order dated 02.08.2007 passed by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993 whereby the appellant (A-120) has been acquitted of all the charges framed against him.
Charges:
91. 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.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other 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, ammunition, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition 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 weapon 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 Bazar, Katha Bazar, Century Bazar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3),(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
91.1 In addition to the first charge, the appellant (A-120) was also charged for having committed the following offence in pursuance of the criminal conspiracy described at charge firstly:
At head Secondly: The appellant, in pursuance of the aforesaid criminal conspiracy, was found to be connected with the episode of possession of unauthorized arms and hand grenades by A-117, A-118, A- 124 and A-125 and committed the following overt acts:
(a) The appellant, by receiving and keeping in his possession one 9mm pistol and its cartridges, which were smuggled into the country for committing terrorist acts, thereby aided the co- conspirator and committed an offence punishable under Section 3(3) of TADA.
At head Thirdly: The appellant possessed the above mentioned pistol and its ammunition in Greater Bombay which is specified as a notified area under clause (f) of sub-section (1) of Section 2 of TADA and thereby committed an offence punishable under Section 5 of TADA.
At head Fourthly: The appellant, by possessing the above mentioned arms and its ammunitions with intent to aid terrorists committed an offence punishable under Section 6 of TADA.
At head Fifthly: The appellant, by possessing the above mentioned arms and its ammunitions, committed an offence punishable under Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of the Arms Act, 1959.
Conviction and Sentence:
92. The Designated Court, by impugned judgment dated 02.08.2007, after considering the materials placed on record and after adverting to all the contentions raised and submissions made, acquitted him of all the charges framed against him.
Discussion:
93. Against the order of acquittal in respect of all the charges against the respondent (A-120), the CBI has filed the present appeal. The only point for consideration in this appeal is whether the order of acquittal rendered by the Designated Court is justifiable or requires interference by this Court. Keeping the basic principles in mind, in a matter when acquittal is recorded by the trial Court and the grounds on which the Appellate Court can interfere, let us consider and dispose of the above appeal.
94. It is not in dispute that A-120 has not made any confession and his co-accused A-125 relied on by the prosecution has also not made any confession and even the confessional statements of other co-accused failed to disclose any involvement of A-120 in any manner. The only allegation against the present accused is that of seizure of a box containing a pistol from his house. The Designated Court, after considering the evidence of panch witness (PW-211) regarding the statement made by A-125 and after finding that there was lot of variation in their statements and bereft of materials about the role of A-120 and further finding that different stories have been projected by the prosecution, refused to accept the same. After analyzing the entire statement of A-125, the trial Court came to a conclusion that the same are insufficient to connect A-120 as being the person who had received the same pistol and rounds.
95. As has been rightly observed by the Designated Court, mere recoveries of a .9mm pistol and the rounds from the bungalow of A-120 would not be sufficient to connect him with the said articles. It is settled law that the recoveries made must be found to have been made as a consequence to the statement made by the accused in custody. In other words, if the nexus in between is not established, the said statement made would be inadmissible in evidence. The Designated Court, after considering the well settled principles and the materials placed concluded that it will be further necessary to say that scrutiny of the evidence also does not reveals A-120 having purchased .9mm pistol and rounds The Designated Court has also concluded that even if the statement made by A-125 is acceptable, in the absence of any supporting oral and documentary evidence and taking note of the improvement made by panch witness as well as in the statements of witnesses stage by stage hardly there would be any evidence to connect A-120 with the relevant contraband articles and rightly discarded the same.
96. In the light of the categorical finding by the trial Court and after analyzing the materials placed by the prosecution, we fully concur with the said conclusion and according to us, with the above said insufficient evidence, the order of acquittal cannot be lightly interfered in the present appeal, consequently, the appeal filed by the CBI fails and the same is dismissed.
***************
89. Heard Mr. H.P. Rawal, learned ASG duly assisted by Mr. Satyakam, learned counsel for the appellant (CBI). None appeared for the respondent.
90. The instant appeal is directed against the impugned judgment and order dated 02.08.2007 passed by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993 whereby the appellant (A-120) has been acquitted of all the charges framed against him.
Charges:
91. 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.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other 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, ammunition, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunition 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 weapon 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 Bazar, Katha Bazar, Century Bazar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs.27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay. And thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with Sections 3(2)(i)(ii), 3(3),(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
91.1 In addition to the first charge, the appellant (A-120) was also charged for having committed the following offence in pursuance of the criminal conspiracy described at charge firstly:
At head Secondly: The appellant, in pursuance of the aforesaid criminal conspiracy, was found to be connected with the episode of possession of unauthorized arms and hand grenades by A-117, A-118, A- 124 and A-125 and committed the following overt acts:
(a) The appellant, by receiving and keeping in his possession one 9mm pistol and its cartridges, which were smuggled into the country for committing terrorist acts, thereby aided the co- conspirator and committed an offence punishable under Section 3(3) of TADA.
At head Thirdly: The appellant possessed the above mentioned pistol and its ammunition in Greater Bombay which is specified as a notified area under clause (f) of sub-section (1) of Section 2 of TADA and thereby committed an offence punishable under Section 5 of TADA.
At head Fourthly: The appellant, by possessing the above mentioned arms and its ammunitions with intent to aid terrorists committed an offence punishable under Section 6 of TADA.
At head Fifthly: The appellant, by possessing the above mentioned arms and its ammunitions, committed an offence punishable under Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of the Arms Act, 1959.
Conviction and Sentence:
92. The Designated Court, by impugned judgment dated 02.08.2007, after considering the materials placed on record and after adverting to all the contentions raised and submissions made, acquitted him of all the charges framed against him.
Discussion:
93. Against the order of acquittal in respect of all the charges against the respondent (A-120), the CBI has filed the present appeal. The only point for consideration in this appeal is whether the order of acquittal rendered by the Designated Court is justifiable or requires interference by this Court. Keeping the basic principles in mind, in a matter when acquittal is recorded by the trial Court and the grounds on which the Appellate Court can interfere, let us consider and dispose of the above appeal.
94. It is not in dispute that A-120 has not made any confession and his co-accused A-125 relied on by the prosecution has also not made any confession and even the confessional statements of other co-accused failed to disclose any involvement of A-120 in any manner. The only allegation against the present accused is that of seizure of a box containing a pistol from his house. The Designated Court, after considering the evidence of panch witness (PW-211) regarding the statement made by A-125 and after finding that there was lot of variation in their statements and bereft of materials about the role of A-120 and further finding that different stories have been projected by the prosecution, refused to accept the same. After analyzing the entire statement of A-125, the trial Court came to a conclusion that the same are insufficient to connect A-120 as being the person who had received the same pistol and rounds.
95. As has been rightly observed by the Designated Court, mere recoveries of a .9mm pistol and the rounds from the bungalow of A-120 would not be sufficient to connect him with the said articles. It is settled law that the recoveries made must be found to have been made as a consequence to the statement made by the accused in custody. In other words, if the nexus in between is not established, the said statement made would be inadmissible in evidence. The Designated Court, after considering the well settled principles and the materials placed concluded that it will be further necessary to say that scrutiny of the evidence also does not reveals A-120 having purchased .9mm pistol and rounds The Designated Court has also concluded that even if the statement made by A-125 is acceptable, in the absence of any supporting oral and documentary evidence and taking note of the improvement made by panch witness as well as in the statements of witnesses stage by stage hardly there would be any evidence to connect A-120 with the relevant contraband articles and rightly discarded the same.
96. In the light of the categorical finding by the trial Court and after analyzing the materials placed by the prosecution, we fully concur with the said conclusion and according to us, with the above said insufficient evidence, the order of acquittal cannot be lightly interfered in the present appeal, consequently, the appeal filed by the CBI fails and the same is dismissed.
***************
