Yusuf Khan @ Kayum Kasam Khan Vs. State of Maharashtra (through CBI, STF)
EmailAppeal: Criminal Appeal No. 1311 of 2007
And
State of Maharashtra v. Yusuf Khan Kasam
Criminal Appeal No. 417 of 2011
And
State of Maharashtra v. Yusuf Khan Kasam
Criminal Appeal No. 417 of 2011
Petitioner: Yusuf Khan @ Kayum Kasam Khan
Respondent: State of Maharashtra (through CBI, STF)
Apeal: Criminal Appeal No. 1311 of 2007
And
State of Maharashtra v. Yusuf Khan Kasam
Criminal Appeal No. 417 of 2011
And
State of Maharashtra v. Yusuf Khan Kasam
Criminal Appeal No. 417 of 2011
Judges: P. Sathasivam & B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
CRIMINAL LAWS
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3) – Conviction under – Bombay Blast case – Confessional statements of A-128 (SK), A-64 (NA) – Depositions of PWs.2, 62 and 604 – All leading to conclusion that appellant 31 was driving one tempo out of two tempos – At the instruction of TM (AA), PW2 followed him and reached Shekhadi Coast – Loaded arms and ammunition in tempos and appellant no. 31 brought the tempo to Wangni Tower – Arms were unwrapped and reloaded in the cavity of the jeep parked there – Vehicle was recovered on the basis of disclosure statement of A-31 duly signed by panch witnesses – A-31 filed application for release of tempo under Section 457 CrPC. – Three experts examined the vehicle under the instructions of Court and found traces of RDX – Whether conviction justified. Held, yes. No interference needed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3) – Conviction under – Bombay Blast case – Confessional statements of A-128 (SK), A-64 (NA) – Depositions of PWs.2, 62 and 604 – All leading to conclusion that appellant 31 was driving one tempo out of two tempos – At the instruction of TM (AA), PW2 followed him and reached Shekhadi Coast – Loaded arms and ammunition in tempos and appellant no. 31 brought the tempo to Wangni Tower – Arms were unwrapped and reloaded in the cavity of the jeep parked there – Vehicle was recovered on the basis of disclosure statement of A-31 duly signed by panch witnesses – A-31 filed application for release of tempo under Section 457 CrPC. – Three experts examined the vehicle under the instructions of Court and found traces of RDX – Whether conviction justified. Held, yes. No interference needed.
Criminal Appeal No. 417 of 2011
Charges of conspiracy – Acquittal – A-31 participated in landing operation of contraband – No record to show that he had knowledge about goods transported in his tempo – Plea that he was merely a transporter – Whether acquittal of the charge of conspiracy justified. Held on facts there is no error in the order of acquittal.
Held:
On the relevant date PW-2 came out of the hotel after having the meal and noticed that Javed Chikna (AA) and Yeda Yakoob (AA), were standing near the white coloured tempo which was being driven by appellant (A-3l). Tiger Memon (AA) told Usman Jan Khan (PW-2) to take a seat in the said tempo with the appellant (A- 31). He (PW-2) sat in the tempo and they followed Tiger Memon (AA) and reached Shekhadi Coast at 9 p.m. The smuggled goods had already arrived at the Coast. The same were wrapped in gunny bags. On the instruction of Tiger Memon (AA), the goods were loaded in the two tempos, one of them was being driven by appellant (A-31). The goods were brought by the said tempo to Wangni Tower and were unloaded there. It was at Wangni Tower that the goods were opened and the witness could see AK-56 rifles, its rounds, handgrenades, pistols, magazines and RDX. They were reloaded in the cavity of the jeeps parked there. (Para 56)
One application under Section 457 of Code of Criminal Procedure, 1973 was filed by the appellant (A-31) before the Designated Court for release of the tempo and the same was allowed. However, the court passed the order that the vehicle should be thoroughly examined by experts as to whether it contained any traces of the RDX. It was in view thereof, 3 experts took samples on 30.11.1993 and the report dated 12.1.1994 detected traces of RDX. This was corroborated by panch witness, Asit Binod Ghorai (PW-602). (Para 59)
Learned Special Judge came to the conclusion that considering the confessions of the co- accused, Nasir (A-64) and Shahnawaz (A-128), as well as the statement made by Usman (PW-2) there can be no conclusion other than the fact that the appellant (A-31) was involved in the Shekhadi landing and the transportation operation. (Para 60)
After going through the evidence on record i.e. the confession of the co-accused (A-64 and A-128) as well as the deposition of the various prosecution witnesses, we find no merit in this appeal. Therefore, it is accordingly, dismissed. (Para 61)
From the evidence on record, it becomes clear that Yusuf Khan Kasam (A-31) had participated in landing operation of contraband goods at Shekhadi as he was one of the persons who accompanied Tiger Memon and others and he had also been to Wangni Tower alongwith other associates and contraband material were loaded in tempo. The tempo was taken by him alongwith absconding accused to Mumbra as instructed by Tiger Memon (AA). This version is duly supported/corroborated by Shah Nawaz Khan (A-128) (Ex. 1569-A) and by the evidence of Usman (PW- 2). However, there is nothing on record to show that he was aware as of what kinds of contraband were being transported in his tempo. (Para 69)
We are of the considered opinion that no further interference is required and appeal lacks merit and is, accordingly, dismissed. (Para 70)
JUDGEMENT:
Dr. B.S. Chauhan, J.
49. This appeal has been preferred against the judgments and orders dated 11.10.2006 and 31.5.2007, passed by the learned Special Judge of the Designated Court under the TADA, in the Bombay Blast Case No.1/93. The appellant (A-31) was charged with general charge of conspiracy, and in addition thereto, he was further charged for participating in landing and transportation of the arms, ammunition and explosives smuggled into India by the conspirators and co-accused at Shekhadi and further for transporting the RDX explosives in his motor tempo No. MCU 4409, which was part of the said consignment and unloaded the same in the godown of co-accused Liyakat Ali Habib Khan (A-85) at MIDC, Thane. The appellant (A-31) was convicted under Section 3(3) TADA, and sentenced for 5 years rigorous imprisonment, alongwith a fine of Rs. 25,000/-, and in default of payment of fine, to suffer further RI for 6 months.
Hence, this appeal.
50. Ms. Farhana Shah, learned counsel appearing on behalf of the appellant, has submitted that the appellant (A-31) has been wrongly convicted for the offences under TADA and the Arms Act. The confessional statements of the co-accused could not be relied upon for the reason as it has been obtained by coercion and it could not be held to be useful and truthful and, therefore, no worth reliance. The panch witnesses could not be relied upon as they were not the natural witnesses i.e. resident of the said area. Thus, appeal deserves to be allowed.
51. Per contra, Shri Mukul Gupta, learned senior counsel appearing on behalf of the State, has opposed the appeal contending that the stand fully established by the evidence on record, particularly, because of the confessional statements of appellant (A-31), A-64, A-128 and further stand corroborated by the evidence of PW-2, PW-62 and PW-604. Thus, no interference is called for.
52. We have considered the rival submissions made by learned counsel for the parties and perused the record.
53. Evidence against the appellant (A-31) :
(a) Confessional statement of Nasir Abdul Kader Kewal (A-64)
(b) Confessional statement of Shahnawaz Khan (A-128)
(c) Deposition of Usman Jan Khan (PW-2)
(d) Deposition of Padmakar Krishna Bhonsle (PW-62)
(e) Deposition of Ajit Surve (PW-604)
Confessional statement of Nasir Abdul Kader Kewal (A-64):
54. In his confessional statement, he (A-64) has revealed that he had been associated in smuggling activities and had been participating in landing and transportation alongwith co-accused. He had earlier worked in Saudi Arabia and after coming back settled in Bombay. His father-in-law Gulam Dastgir used to run the business of Matka at Bandra and thus, he (A-64) also joined the said business. Subsequently, he came in association of the smugglers and started helping them in landing and transportation. He participated in landing and transportation from Shekhadi on 7.2.1993 and said that the associates of Tiger Memon (AA) were present including appellant (A-3l). At the instance of Tiger Memon, the bags of arms and explosives brought from the trawler were loaded in a tempo driven by appellant (A-31).
Confessional statement of Shahnawaz Khan (A-128):
55. Confessional statement of Shahnawaz Khan (A-128) revealed that he participated in landing on 7.2.1993. He (A-128) alongwith co-accused brought the smuggled goods at Seashore and they found that two tempos were already parked there. One tempo was being driven by appellant (A-3l). The smuggled goods were being loaded in both the tempos. Tiger Memon (AA), Javed Chikna (AA) and Yeda Yakoob (AA) opened the sacks. The accused (A-128) saw that it contained rifles, hand-grenades and bags containing black coloured powder in it. Bullets were also there. Subsequently, those tempos were unloaded at a building with a tower. The goods were reloaded in the cavity of Commander jeeps. The said vehicles (Jeeps) left for Bombay. One tempo though empty followed the jeep.
56. Usman Jan Khan (PW-2) identified the appellant (A-3l) in the court. Usman Jan Khan (PW-2) deposed that appellant (A-3l) participated in transportation of smuggled articles. He deposed that on the relevant date they came out of the hotel after having the meal and noticed that Javed Chikna (AA) and Yeda Yakoob (AA), were standing near the white coloured tempo which was being driven by appellant (A-3l). Tiger Memon (AA) told Usman Jan Khan (PW-2) to take a seat in the said tempo with the appellant (A- 31). He (PW-2) sat in the tempo and they followed Tiger Memon (AA) and reached Shekhadi Coast at 9 p.m. The smuggled goods had already arrived at the Coast. The same were wrapped in gunny bags. On the instruction of Tiger Memon (AA), the goods were loaded in the two tempos, one of them was being driven by appellant (A-31). The goods were brought by the said tempo to Wangni Tower and were unloaded there. It was at Wangni Tower that the goods were opened and the witness could see AK-56 rifles, its rounds, handgrenades, pistols, magazines and RDX. They were reloaded in the cavity of the jeeps parked there.
57. Padmakar Krishna Bhonsle (PW-62) is the panch witness of the recovery of the vehicle and identified the vehicle recovered by Police Inspector, Anil Prabhakar Mahabole (PW-506). It was recovered at the disclosure statement of the appellant (A-31).
58. Ajit Shivram Surve (PW-604), the Police Officer attached with DCB, CID who had been sent to get the samples prepared on 30.l1.1993 by P.I. Shri Pharande, and he corroborated the incident of collection of samples as described by Asit Binod Ghorai (PW- 602). He also named 3 persons who collected the samples as Kulkarni, Malve and Surve. He (PW-604) further deposed that he prepared the panchnama which was duly signed by the panch witnesses.
59. One application under Section 457 of Code of Criminal Procedure, 1973 was filed by the appellant (A-31) before the Designated Court for release of the tempo and the same was allowed. However, the court passed the order that the vehicle should be thoroughly examined by experts as to whether it contained any traces of the RDX. It was in view thereof, 3 experts took samples on 30.11.1993 and the report dated 12.1.1994 detected traces of RDX. This was corroborated by panch witness, Asit Binod Ghorai (PW-602).
60. After conclusion of the trial, the learned Special Judge came to the conclusion that considering the confessions of the co- accused, Nasir (A-64) and Shahnawaz (A-128), as well as the statement made by Usman (PW-2) there can be no conclusion other than the fact that the appellant (A-31) was involved in the Shekhadi landing and the transportation operation.
61. After going through the evidence on record i.e. the confession of the co-accused (A-64 and A-128) as well as the deposition of the various prosecution witnesses, we find no merit in this appeal. Therefore, it is accordingly, dismissed.
Criminal Appeal No. 417 of 2011
62. 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 No.1 of 1993. The charge against the respondent (A-31) had been framed mainly for conspiracy. He was further charged with abetting and knowingly facilitating the commission of terrorist activities during the period of December, 1992 to April, 1993 by involving himself in landing and transportation of arms, ammunition and explosives smuggled into India by his co-conspirators and the role played by the respondent (A-31) had been, transporting the said explosives landed at Shekhadi by his motor tempo No. MCU 4409 from Alibagh to Thane, which was unloaded in the godown of co- accused Liyakat Khan at MIDC.
63. After the trial, the said respondent (A-31) had been convicted for the main charge under Section 3(3) TADA for transportation of the said explosives and awarded punishment of five years with a fine of Rs.25,000/- but has been acquitted of the charge of conspiracy.
Hence, this appeal.
64. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that in addition to the general charge of conspiracy, the respondent (A-31) had been charged for assisting Tiger Memon (AA) and his associates in smuggling of arms, ammunition, handgrenades and explosives and its landing and transportation from Shekhadi on 7.2.1993. The respondent was present at the instance of Tiger Memon and had transported the said contraband in his vehicle. Therefore, as the respondent had been aware of the nature of the contraband, he cannot escape the liability of charge of conspiracy. Thus, the appeal deserves to be allowed.
65. Mr. Mushtaq Ahmad, learned counsel appearing for the respondent (A-31) has submitted that he is merely a transporter and not an associate of Tiger Memon, so he could not be involved in the charge of conspiracy. Thus, the appeal is liable to be dismissed.
66. We have considered the rival submissions made by the learned counsel for the parties and perused the evidence on record.
67. The learned Special Judge dealt with the issue and came to the conclusion that in spite of the fact that the respondent (A-31) transported the contraband in his tempo and took the same to a far distance but there was nothing on record to show that he had knowledge of the kinds of goods transported in his tempo.
68. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
69. From the evidence on record, it becomes clear that Yusuf Khan Kasam (A-31) had participated in landing operation of contraband goods at Shekhadi as he was one of the persons who accompanied Tiger Memon and others and he had also been to Wangni Tower alongwith other associates and contraband material were loaded in tempo. The tempo was taken by him alongwith absconding accused to Mumbra as instructed by Tiger Memon (AA). This version is duly supported/corroborated by Shah Nawaz Khan (A-128) (Ex. 1569-A) and by the evidence of Usman (PW- 2). However, there is nothing on record to show that he was aware as of what kinds of contraband were being transported in his tempo.
70. We are of the considered opinion that no further interference is required and appeal lacks merit and is, accordingly, dismissed.
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49. This appeal has been preferred against the judgments and orders dated 11.10.2006 and 31.5.2007, passed by the learned Special Judge of the Designated Court under the TADA, in the Bombay Blast Case No.1/93. The appellant (A-31) was charged with general charge of conspiracy, and in addition thereto, he was further charged for participating in landing and transportation of the arms, ammunition and explosives smuggled into India by the conspirators and co-accused at Shekhadi and further for transporting the RDX explosives in his motor tempo No. MCU 4409, which was part of the said consignment and unloaded the same in the godown of co-accused Liyakat Ali Habib Khan (A-85) at MIDC, Thane. The appellant (A-31) was convicted under Section 3(3) TADA, and sentenced for 5 years rigorous imprisonment, alongwith a fine of Rs. 25,000/-, and in default of payment of fine, to suffer further RI for 6 months.
Hence, this appeal.
50. Ms. Farhana Shah, learned counsel appearing on behalf of the appellant, has submitted that the appellant (A-31) has been wrongly convicted for the offences under TADA and the Arms Act. The confessional statements of the co-accused could not be relied upon for the reason as it has been obtained by coercion and it could not be held to be useful and truthful and, therefore, no worth reliance. The panch witnesses could not be relied upon as they were not the natural witnesses i.e. resident of the said area. Thus, appeal deserves to be allowed.
51. Per contra, Shri Mukul Gupta, learned senior counsel appearing on behalf of the State, has opposed the appeal contending that the stand fully established by the evidence on record, particularly, because of the confessional statements of appellant (A-31), A-64, A-128 and further stand corroborated by the evidence of PW-2, PW-62 and PW-604. Thus, no interference is called for.
52. We have considered the rival submissions made by learned counsel for the parties and perused the record.
53. Evidence against the appellant (A-31) :
(a) Confessional statement of Nasir Abdul Kader Kewal (A-64)
(b) Confessional statement of Shahnawaz Khan (A-128)
(c) Deposition of Usman Jan Khan (PW-2)
(d) Deposition of Padmakar Krishna Bhonsle (PW-62)
(e) Deposition of Ajit Surve (PW-604)
Confessional statement of Nasir Abdul Kader Kewal (A-64):
54. In his confessional statement, he (A-64) has revealed that he had been associated in smuggling activities and had been participating in landing and transportation alongwith co-accused. He had earlier worked in Saudi Arabia and after coming back settled in Bombay. His father-in-law Gulam Dastgir used to run the business of Matka at Bandra and thus, he (A-64) also joined the said business. Subsequently, he came in association of the smugglers and started helping them in landing and transportation. He participated in landing and transportation from Shekhadi on 7.2.1993 and said that the associates of Tiger Memon (AA) were present including appellant (A-3l). At the instance of Tiger Memon, the bags of arms and explosives brought from the trawler were loaded in a tempo driven by appellant (A-31).
Confessional statement of Shahnawaz Khan (A-128):
55. Confessional statement of Shahnawaz Khan (A-128) revealed that he participated in landing on 7.2.1993. He (A-128) alongwith co-accused brought the smuggled goods at Seashore and they found that two tempos were already parked there. One tempo was being driven by appellant (A-3l). The smuggled goods were being loaded in both the tempos. Tiger Memon (AA), Javed Chikna (AA) and Yeda Yakoob (AA) opened the sacks. The accused (A-128) saw that it contained rifles, hand-grenades and bags containing black coloured powder in it. Bullets were also there. Subsequently, those tempos were unloaded at a building with a tower. The goods were reloaded in the cavity of Commander jeeps. The said vehicles (Jeeps) left for Bombay. One tempo though empty followed the jeep.
56. Usman Jan Khan (PW-2) identified the appellant (A-3l) in the court. Usman Jan Khan (PW-2) deposed that appellant (A-3l) participated in transportation of smuggled articles. He deposed that on the relevant date they came out of the hotel after having the meal and noticed that Javed Chikna (AA) and Yeda Yakoob (AA), were standing near the white coloured tempo which was being driven by appellant (A-3l). Tiger Memon (AA) told Usman Jan Khan (PW-2) to take a seat in the said tempo with the appellant (A- 31). He (PW-2) sat in the tempo and they followed Tiger Memon (AA) and reached Shekhadi Coast at 9 p.m. The smuggled goods had already arrived at the Coast. The same were wrapped in gunny bags. On the instruction of Tiger Memon (AA), the goods were loaded in the two tempos, one of them was being driven by appellant (A-31). The goods were brought by the said tempo to Wangni Tower and were unloaded there. It was at Wangni Tower that the goods were opened and the witness could see AK-56 rifles, its rounds, handgrenades, pistols, magazines and RDX. They were reloaded in the cavity of the jeeps parked there.
57. Padmakar Krishna Bhonsle (PW-62) is the panch witness of the recovery of the vehicle and identified the vehicle recovered by Police Inspector, Anil Prabhakar Mahabole (PW-506). It was recovered at the disclosure statement of the appellant (A-31).
58. Ajit Shivram Surve (PW-604), the Police Officer attached with DCB, CID who had been sent to get the samples prepared on 30.l1.1993 by P.I. Shri Pharande, and he corroborated the incident of collection of samples as described by Asit Binod Ghorai (PW- 602). He also named 3 persons who collected the samples as Kulkarni, Malve and Surve. He (PW-604) further deposed that he prepared the panchnama which was duly signed by the panch witnesses.
59. One application under Section 457 of Code of Criminal Procedure, 1973 was filed by the appellant (A-31) before the Designated Court for release of the tempo and the same was allowed. However, the court passed the order that the vehicle should be thoroughly examined by experts as to whether it contained any traces of the RDX. It was in view thereof, 3 experts took samples on 30.11.1993 and the report dated 12.1.1994 detected traces of RDX. This was corroborated by panch witness, Asit Binod Ghorai (PW-602).
60. After conclusion of the trial, the learned Special Judge came to the conclusion that considering the confessions of the co- accused, Nasir (A-64) and Shahnawaz (A-128), as well as the statement made by Usman (PW-2) there can be no conclusion other than the fact that the appellant (A-31) was involved in the Shekhadi landing and the transportation operation.
61. After going through the evidence on record i.e. the confession of the co-accused (A-64 and A-128) as well as the deposition of the various prosecution witnesses, we find no merit in this appeal. Therefore, it is accordingly, dismissed.
Criminal Appeal No. 417 of 2011
62. 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 No.1 of 1993. The charge against the respondent (A-31) had been framed mainly for conspiracy. He was further charged with abetting and knowingly facilitating the commission of terrorist activities during the period of December, 1992 to April, 1993 by involving himself in landing and transportation of arms, ammunition and explosives smuggled into India by his co-conspirators and the role played by the respondent (A-31) had been, transporting the said explosives landed at Shekhadi by his motor tempo No. MCU 4409 from Alibagh to Thane, which was unloaded in the godown of co- accused Liyakat Khan at MIDC.
63. After the trial, the said respondent (A-31) had been convicted for the main charge under Section 3(3) TADA for transportation of the said explosives and awarded punishment of five years with a fine of Rs.25,000/- but has been acquitted of the charge of conspiracy.
Hence, this appeal.
64. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that in addition to the general charge of conspiracy, the respondent (A-31) had been charged for assisting Tiger Memon (AA) and his associates in smuggling of arms, ammunition, handgrenades and explosives and its landing and transportation from Shekhadi on 7.2.1993. The respondent was present at the instance of Tiger Memon and had transported the said contraband in his vehicle. Therefore, as the respondent had been aware of the nature of the contraband, he cannot escape the liability of charge of conspiracy. Thus, the appeal deserves to be allowed.
65. Mr. Mushtaq Ahmad, learned counsel appearing for the respondent (A-31) has submitted that he is merely a transporter and not an associate of Tiger Memon, so he could not be involved in the charge of conspiracy. Thus, the appeal is liable to be dismissed.
66. We have considered the rival submissions made by the learned counsel for the parties and perused the evidence on record.
67. The learned Special Judge dealt with the issue and came to the conclusion that in spite of the fact that the respondent (A-31) transported the contraband in his tempo and took the same to a far distance but there was nothing on record to show that he had knowledge of the kinds of goods transported in his tempo.
68. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
69. From the evidence on record, it becomes clear that Yusuf Khan Kasam (A-31) had participated in landing operation of contraband goods at Shekhadi as he was one of the persons who accompanied Tiger Memon and others and he had also been to Wangni Tower alongwith other associates and contraband material were loaded in tempo. The tempo was taken by him alongwith absconding accused to Mumbra as instructed by Tiger Memon (AA). This version is duly supported/corroborated by Shah Nawaz Khan (A-128) (Ex. 1569-A) and by the evidence of Usman (PW- 2). However, there is nothing on record to show that he was aware as of what kinds of contraband were being transported in his tempo.
70. We are of the considered opinion that no further interference is required and appeal lacks merit and is, accordingly, dismissed.
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