Zaibunisa Anwar Kazi (A-119) Vs. The State of Maharashtra, through Superintendent of Police, CBI-STF, Bom
EmailAppeal: Criminal Appeal No. 1001 of 2007
With
The State of Maharashtra, through CBI v. Zaibunisa Anwar Kazi (A-119)
Criminal Appeal No. 392 of 2011
With
The State of Maharashtra, through CBI v. Zaibunisa Anwar Kazi (A-119)
Criminal Appeal No. 392 of 2011
Petitioner: Zaibunisa Anwar Kazi (A-119)
Respondent: The State of Maharashtra, through Superintendent of Police, CBI-STF, Bombay
Apeal: Criminal Appeal No. 1001 of 2007
With
The State of Maharashtra, through CBI v. Zaibunisa Anwar Kazi (A-119)
Criminal Appeal No. 392 of 2011
With
The State of Maharashtra, through CBI v. Zaibunisa Anwar Kazi (A-119)
Criminal Appeal No. 392 of 2011
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 6, 15 – Penal Code, 1860, Section 120B – Arms Act, 1959, Sections 25(1A) and (1B), Sections 3 & 7 – Explosives Act, 1884, Sections 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Confessional statement of co-accused A89 A89 along with A139 went to the house of appellant A119 (Vidhyanchal Apt.) to hand over bag of arms for causing riots in Bombay as per his confessional statement Fact of accused staying in Vidhyanchal Apt confirmed by PW283, watchman who identified appellant in court Only three persons present when act of taking and storing of weapon effected No corroborative material available – Weapons kept for storage purpose and meant to be taken back by main conspirator – Designated Court taking this fact into consideration acquitting her (A119) under Section 5 of TADA and Arms Act as she was not in constant possession of weapons – No weapon recovered from her house Also acquitted her of the charges of conspiracy – Designated court convicted the appellant under Sections 3 (3) , 6 of TADA on the basis of confessional statement of A-89 and evidence of PW 283 chowkidar. Held no fault found in the judgment of Designated Court. Sentence and conviction, confirmed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 6, 15 – Penal Code, 1860, Section 120B – Arms Act, 1959, Sections 25(1A) and (1B), Sections 3 & 7 – Explosives Act, 1884, Sections 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Confessional statement of co-accused A89 A89 along with A139 went to the house of appellant A119 (Vidhyanchal Apt.) to hand over bag of arms for causing riots in Bombay as per his confessional statement Fact of accused staying in Vidhyanchal Apt confirmed by PW283, watchman who identified appellant in court Only three persons present when act of taking and storing of weapon effected No corroborative material available – Weapons kept for storage purpose and meant to be taken back by main conspirator – Designated Court taking this fact into consideration acquitting her (A119) under Section 5 of TADA and Arms Act as she was not in constant possession of weapons – No weapon recovered from her house Also acquitted her of the charges of conspiracy – Designated court convicted the appellant under Sections 3 (3) , 6 of TADA on the basis of confessional statement of A-89 and evidence of PW 283 chowkidar. Held no fault found in the judgment of Designated Court. Sentence and conviction, confirmed.
Ed. : Appeal filed by State of Maharashtra, dismissed.
114. Mr. Sushil Kumar, learned senior counsel appeared for the appellant (A-119) and Mr. Rawal, learned ASG duly assisted by Mr. Satyakam, learned counsel appeared for the respondent (CBI).
Held:
The Designated Court convicted the appellant under Section 3(3) and Section 6 of TADA only on the basis of the confessional statement of A-89 and the evidence of PW-283 Chowkidar (watchman in the building). Admittedly, the appellant, at no point of time, had made any confession admitting her guilt. Equally, it is not in dispute that no recovery has been affected from her house. The only incriminating circumstance against her is the statement of A-89 that while handing over a plastic bag, he mentioned that it contains AK-56 rifle and other arms. It is also his claim that after knowing the contents, she received the same and kept it in her house. (Para 124)
We are satisfied that the Designated Court has rightly acquitted her of the main charge i.e. charge firstly. However, upon perusal of the entire evidence, the judgment passed by the Designated Court is upheld to the extent of Charge secondly (for keeping arms) and fourthly (aiding terrorists and facilitating their act and failure to give information to police, thereby committing offence under Section 6 of TADA). (Para 125)
In view of the minimum sentence of 5 years prescribed under Sections 3(3) and 6 of TADA, we have no other option, but to confirm the conviction and sentence as awarded by the Designated Court. Consequently, the appeal fails and is accordingly dismissed. (Para 126)
JUDGEMENT:
Judgment (Contd.)
Criminal Appeal No. 1001 of 2007
115. The instant appeal is directed against the final judgment and order of conviction and sentence dated 28.11.2006 and 14.06.2007 respectively whereby the appellant (A-119) has been convicted and sentenced to rigorous imprisonment for 5 years by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
116. 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 Bazaar, Katha Bazaar, Century Bazaar 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.
116.1 In addition to the first charge, the appellant (A-119) was also charged for having committed the following offences in pursuance of the criminal conspiracy described as under:
At head Secondly: The appellant, in pursuance of the aforesaid criminal conspiracy, has committed the following overt acts:
(a) The appellant, in connivance with other co-conspirators kept in her possession AK-56 rifles, its ammunitions and hand grenades which she stored at her residence at the instance of Anees Ibrahim Kaskar (AA) which was brought to her residence by wanted accused Abu Salem Qayum Ansari (then absconding now A- 139) and Manzoor Ahmed Sayed Ahmed (A-89) and thereby aided and facilitated the distribution of firearms, ammunition and explosives smuggled into India by other co-conspirators for committing terrorist acts and thereby committed an offence punishable under Section 3 (3) of TADA.
At head Thirdly: The appellant, in pursuance of the aforesaid criminal conspiracy, had in her possession, unauthorisedly, AK-56 rifles, its ammunitions and hand grenades 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, in pursuance of the aforesaid criminal conspiracy, with an intent to aid terrorists and failed to give information to police/magistrate contravened the provisions of the Arms Act, 1959, the Arms Rules, 1962, the Explosive Substances Act, 1908 and the Explosives Rules, 1983 and thereby committed an offence punishable under Section 6 of TADA.
Conviction and Sentence:
117. The appellant (A-119) has been convicted and sentenced as under:
(i) RI for 5 years with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months under Section 3(3) of TADA (charge secondly)
(ii) RI for 5 years along with a fine of Rs. 75,000/-, in default, to further undergo RI for a period of 1 (one and a half) years. (charge fourthly)
118. The Designated Court acquitted the appellant (A-119) on the first and third charge. Challenging the conviction A-119 filed Criminal Appeal No. 1001/2007 and Criminal Appeal No. 392/2011 has been preferred by the prosecution challenging the acquittal of the appellant on the charge of conspiracy alone.
Evidence
119) The evidence against the appellant (A-119) is in the form of:-
(i) confessions made by other co-conspirator; (co-accused); and
(ii) testimony of prosecution witnesses.
120) Confessional Statements of co-accused:
A brief account of the evidence brought on record in respect of A-119 is summarized as under:
Confessional Statement of Manzoor Ahmed Sayed Ahmed (A-89)
120.1 Confessional statement of A-89 under Section 15 of TADA has been recorded on 24.05.1993 (11:15 hrs.) (Part I) and 26.05.1993 (Part II) (17:30 hrs.). The confession of A-89 with respect to the appellant is summarized hereunder:
A-89 and A-139 went to the first floor of 22 Mount Mary, Vidhyanchal Apartment and handed over the bag to a lady and told that the bag contains arms for causing riots and they were sent by Anis Bhai and that they would take the bag after some days. After saying so, he gave the bag to that middle aged lady. The lady opened the bag and after seeing its contents, closed the same and took it inside the room.
121. Upon perusal of the aforesaid confession, it is clear that the appellant was in conscious possession of arms and ammunitions and explosives in a notified area of Bombay, and was also aware about the purpose for which they were to be used, that is, to cause riots in Bombay. On the other hand, according to counsel for the appellant (A-119), the confession of A-89 cannot be relied upon since it has no evidentiary value. On the other hand, Mr. Rawal, learned ASG while relying on the decision of this Court in Mohd. Ayub Dar v. State of Jammu and Kashmir, (supra) contended that the conviction and sentence under charge secondly and fourthly is fully justified. He relied heavily on the following conclusion arrived at by this Court which reads thus:
59. It would, therefore, be clear, as rightly contended by Shri Rawal that merely because the guidelines in Kartar Singh v. State of Punjab were not fully followed, that by itself does not wipe out the confession recorded. We have already given our reasons for holding that the confession was recorded by A.K. Suri (PW 2) taking full care and cautions which were required to be observed while recording the confession.
60. In Ravinder Singh v. State of Maharashtra it has been observed in para 19 that if the confession made by the accused is voluntary and truthful and relates to the accused himself, then no further corroboration is necessary and a conviction of the accused can be solely based on it. It has also been observed that such confessional statement is admissible as a substantive piece of evidence. It was further observed that the said confession need not be tested for the contradictions to be found in the confession of the co-accused. It is for that reason that even if the other oral evidence goes counter to the statements made in the confession, one’s confession can be found to be voluntary and reliable and it can become the basis of the conviction.
121. 1 In addition to the proposition of law mentioned above, the acceptability of confession of co-accused has already been discussed and considered in the earlier part of our judgment, there is no need to repeat the same once again.
Other evidence:
Deposition of Dilip Bhandur Gosh (PW-283)
122. PW-283 deposed as under:
(i) At the relevant time, he was working as the watchman in the Vidhyanchal Society.
(ii) He further deposed that he will be able to identify the occupants of the said society in the year 1993
(iii) He stated that the appellant was residing on the first floor of B Wing of the said society
(iv) He identified the appellant before the court.
The aforesaid evidence corroborates the fact that the appellant was staying on the first floor of the Vidhyanchal Building.
123. Upon appreciation of the entire evidence, the Designated Court held as under:
32) With regard to the case of A-119 there appears similarity in many of the aspects with A-89. With regard to the defence criticism of the material evidence against her being in shape of material in confession of A-89 all the dilation made about the submissions canvassed that conviction cannot be made on the basis of material in confession of co-accused would be applicable. In the said context, it will be necessary to add that material in the confession of co-accused being now held to be substantive piece of evidence and considering the circumstances relevant to the role played by A-119 i.e. only 3 persons being present when the relevant act of taking and storing the weapons was effected and thus there being no other corroborative material, which could have been available the said matters in the confession will not be liable to be discarded on the count of there being no corroborations as stated earlier. Now considering the period in which the relevant had occurred and the period after which the police had received the information, merely because evidence does not reveal of any material being found at the house of A-119 will not be a ground for discarding the said material in the confession of A-89. As a matter of fact, event the said material itself reveals that the said weapons were to be kept with her and were to be collected back by Abu Salem; non-finding of weapon with her clearly appears to be insignificant circumstance.
33) Thus the evidence having clearly denoted that weapons were kept with her for storage purpose and they were to be collected back, A-119 cannot be said to be in possession of contraband material as all the time the possession of the said weapons would have been that of main conspirator who had kept the same with her. In view of the same, alike A-89 she cannot be said to be guilty for commission of offence under Section 5 of TADA and the relevant sections under the Arms Act, for which she is charged at the trial. Similarly, for the same reasons because of which A-89 cannot be said to be guilty for offence of conspiracy. She also cannot be said to be guilty for commission of such offence. It is indeed true that considering the role played by her in storing the weapons in her house or even for A-89 being also instrumental for taking the said weapons does create a strong suspicion of both of them being man of confidence of prime conspirator. However, since shrouding of suspicion cannot take the place of proof and there being paucity of material that both of them had knowledge of object of any particular conspiracy both of them cannot be held guilty for commission of offence of conspiracy. Thus, alike A-89 she will be also required to be held not guilty for commission of offence for which she was charged at head firstly.
34) However, considering the repeated participation of A-119 in allowing absconding accused Anees Ibrahim to store the weapons at her house or with her, herself taking up the weapons in spite of knowing the purpose for which the same were sent by Anees, the evidence pertaining to second occasion clearly revealing that the weapons were 2 AK-56 Rifles and the ammunition and thereby all the evidence establishing that the same being brought to India for commission of terrorists Act i.e. by and for the terrorists, act committed by her will clearly fall within the four corners of Section 3(3) of TADA. Similarly, her act of keeping such a material in the house, even after knowing the purpose for which the same were brought to India clearly reveals that by the same she was aiding and abetting the terrorists by contravening the provisions of the Arms Act. As such she will be required to be held guilty for commission of offence under Section 6 of TADA.
35) As a result of the aforesaid discussion, Point No. 163 to 166 and so also relevant points framed for offence of conspiracy will be required to be answered in consonance with conclusions arrived during the aforesaid discussion i.e. affirmative for holding A-89 and A-119 guilty for offence under Section 3(3) of TADA and A-119 also guilty for offence under Section 6 of TADA and negative with regard to the other charges framed against them at a trial. Thus Point No. 163 to 166 stands answered accordingly.
124. The above discussion shows that the Designated Court convicted the appellant under Section 3(3) and Section 6 of TADA only on the basis of the confessional statement of A-89 and the evidence of PW-283 Chowkidar (watchman in the building). Admittedly, the appellant, at no point of time, had made any confession admitting her guilt. Equally, it is not in dispute that no recovery has been affected from her house. The only incriminating circumstance against her is the statement of A-89 that while handing over a plastic bag, he mentioned that it contains AK-56 rifle and other arms. It is also his claim that after knowing the contents, she received the same and kept it in her house.
125. Taking note of all these aspects, absolutely, there is no case insofar as the main conspiracy against her and we are satisfied that the Designated Court has rightly acquitted her of the main charge i.e. charge firstly. However, upon perusal of the entire evidence, the judgment passed by the Designated Court is upheld to the extent of Charge secondly and fourthly.
126. In view of the minimum sentence of 5 years prescribed under Sections 3(3) and 6 of TADA, we have no other option, but to confirm the conviction and sentence as awarded by the Designated Court. Consequently, the appeal fails and is accordingly dismissed.
Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 392 of 2011
127. Though Mr. Rawal, learned ASG, prayed for conviction of A-119 for the charge framed at head firstly, i.e., conspiracy, in view of the above discussion, we are satisfied that the Designated Court was justified in arriving at such a conclusion and we fully agree with the same. Hence, the appeal filed by the State is liable to be dismissed.
128. The appellants-accused concerned are directed to surrender within a period of 4 (four) weeks from today in order to serve the remaining period of sentence. The Designated Court is directed to take appropriate steps for their custody in case of failure to comply with the above said direction.
129. For convenience, we have reproduced the conclusion arrived at in respect of all the appeals dealt with under this part in Annexure A appended hereto.
130. We must in the end express our deep gratitude to learned senior counsel/counsel for both sides who rendered relentless assistance and support to the Bench in arriving at its decision. Their efforts are salutary and we record our appreciation for the same.
Annexure A
S.No. Criminal Appeal Accused Name and Number Sentence by Award by Supreme
1. 1060/2007 Sanjay Dutt (A-117) RI for 6 years Reduced to RI
for 5 years
2. 1102/2007 Yusuf Mohsin Nullwalla (A-118) RI for 5 years Confirmed
3. 1687/2007 Kersi Bapuji Adajania (A-124) RI for 2 years Reduced to RI for 1
year
4. 596/2011 Ajai Yash Parkash Marwah Acquitted State appeal
(By State) (A-120) dismissed
5. 1104/2007 Samir Hingora (A-53) RI for 9 Reduced to the
years period already
undergone
with
1026/2012
(By State) Dismissed
6. 1001/2007 Zaibunisa Anwar Kazi (A-119) RI for 5 years Confirmed
with
392/2011
(By State) Dismissed
**************
Criminal Appeal No. 1001 of 2007
115. The instant appeal is directed against the final judgment and order of conviction and sentence dated 28.11.2006 and 14.06.2007 respectively whereby the appellant (A-119) has been convicted and sentenced to rigorous imprisonment for 5 years by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
116. 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 Bazaar, Katha Bazaar, Century Bazaar 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.
116.1 In addition to the first charge, the appellant (A-119) was also charged for having committed the following offences in pursuance of the criminal conspiracy described as under:
At head Secondly: The appellant, in pursuance of the aforesaid criminal conspiracy, has committed the following overt acts:
(a) The appellant, in connivance with other co-conspirators kept in her possession AK-56 rifles, its ammunitions and hand grenades which she stored at her residence at the instance of Anees Ibrahim Kaskar (AA) which was brought to her residence by wanted accused Abu Salem Qayum Ansari (then absconding now A- 139) and Manzoor Ahmed Sayed Ahmed (A-89) and thereby aided and facilitated the distribution of firearms, ammunition and explosives smuggled into India by other co-conspirators for committing terrorist acts and thereby committed an offence punishable under Section 3 (3) of TADA.
At head Thirdly: The appellant, in pursuance of the aforesaid criminal conspiracy, had in her possession, unauthorisedly, AK-56 rifles, its ammunitions and hand grenades 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, in pursuance of the aforesaid criminal conspiracy, with an intent to aid terrorists and failed to give information to police/magistrate contravened the provisions of the Arms Act, 1959, the Arms Rules, 1962, the Explosive Substances Act, 1908 and the Explosives Rules, 1983 and thereby committed an offence punishable under Section 6 of TADA.
Conviction and Sentence:
117. The appellant (A-119) has been convicted and sentenced as under:
(i) RI for 5 years with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months under Section 3(3) of TADA (charge secondly)
(ii) RI for 5 years along with a fine of Rs. 75,000/-, in default, to further undergo RI for a period of 1 (one and a half) years. (charge fourthly)
118. The Designated Court acquitted the appellant (A-119) on the first and third charge. Challenging the conviction A-119 filed Criminal Appeal No. 1001/2007 and Criminal Appeal No. 392/2011 has been preferred by the prosecution challenging the acquittal of the appellant on the charge of conspiracy alone.
Evidence
119) The evidence against the appellant (A-119) is in the form of:-
(i) confessions made by other co-conspirator; (co-accused); and
(ii) testimony of prosecution witnesses.
120) Confessional Statements of co-accused:
A brief account of the evidence brought on record in respect of A-119 is summarized as under:
Confessional Statement of Manzoor Ahmed Sayed Ahmed (A-89)
120.1 Confessional statement of A-89 under Section 15 of TADA has been recorded on 24.05.1993 (11:15 hrs.) (Part I) and 26.05.1993 (Part II) (17:30 hrs.). The confession of A-89 with respect to the appellant is summarized hereunder:
A-89 and A-139 went to the first floor of 22 Mount Mary, Vidhyanchal Apartment and handed over the bag to a lady and told that the bag contains arms for causing riots and they were sent by Anis Bhai and that they would take the bag after some days. After saying so, he gave the bag to that middle aged lady. The lady opened the bag and after seeing its contents, closed the same and took it inside the room.
121. Upon perusal of the aforesaid confession, it is clear that the appellant was in conscious possession of arms and ammunitions and explosives in a notified area of Bombay, and was also aware about the purpose for which they were to be used, that is, to cause riots in Bombay. On the other hand, according to counsel for the appellant (A-119), the confession of A-89 cannot be relied upon since it has no evidentiary value. On the other hand, Mr. Rawal, learned ASG while relying on the decision of this Court in Mohd. Ayub Dar v. State of Jammu and Kashmir, (supra) contended that the conviction and sentence under charge secondly and fourthly is fully justified. He relied heavily on the following conclusion arrived at by this Court which reads thus:
59. It would, therefore, be clear, as rightly contended by Shri Rawal that merely because the guidelines in Kartar Singh v. State of Punjab were not fully followed, that by itself does not wipe out the confession recorded. We have already given our reasons for holding that the confession was recorded by A.K. Suri (PW 2) taking full care and cautions which were required to be observed while recording the confession.
60. In Ravinder Singh v. State of Maharashtra it has been observed in para 19 that if the confession made by the accused is voluntary and truthful and relates to the accused himself, then no further corroboration is necessary and a conviction of the accused can be solely based on it. It has also been observed that such confessional statement is admissible as a substantive piece of evidence. It was further observed that the said confession need not be tested for the contradictions to be found in the confession of the co-accused. It is for that reason that even if the other oral evidence goes counter to the statements made in the confession, one’s confession can be found to be voluntary and reliable and it can become the basis of the conviction.
121. 1 In addition to the proposition of law mentioned above, the acceptability of confession of co-accused has already been discussed and considered in the earlier part of our judgment, there is no need to repeat the same once again.
Other evidence:
Deposition of Dilip Bhandur Gosh (PW-283)
122. PW-283 deposed as under:
(i) At the relevant time, he was working as the watchman in the Vidhyanchal Society.
(ii) He further deposed that he will be able to identify the occupants of the said society in the year 1993
(iii) He stated that the appellant was residing on the first floor of B Wing of the said society
(iv) He identified the appellant before the court.
The aforesaid evidence corroborates the fact that the appellant was staying on the first floor of the Vidhyanchal Building.
123. Upon appreciation of the entire evidence, the Designated Court held as under:
32) With regard to the case of A-119 there appears similarity in many of the aspects with A-89. With regard to the defence criticism of the material evidence against her being in shape of material in confession of A-89 all the dilation made about the submissions canvassed that conviction cannot be made on the basis of material in confession of co-accused would be applicable. In the said context, it will be necessary to add that material in the confession of co-accused being now held to be substantive piece of evidence and considering the circumstances relevant to the role played by A-119 i.e. only 3 persons being present when the relevant act of taking and storing the weapons was effected and thus there being no other corroborative material, which could have been available the said matters in the confession will not be liable to be discarded on the count of there being no corroborations as stated earlier. Now considering the period in which the relevant had occurred and the period after which the police had received the information, merely because evidence does not reveal of any material being found at the house of A-119 will not be a ground for discarding the said material in the confession of A-89. As a matter of fact, event the said material itself reveals that the said weapons were to be kept with her and were to be collected back by Abu Salem; non-finding of weapon with her clearly appears to be insignificant circumstance.
33) Thus the evidence having clearly denoted that weapons were kept with her for storage purpose and they were to be collected back, A-119 cannot be said to be in possession of contraband material as all the time the possession of the said weapons would have been that of main conspirator who had kept the same with her. In view of the same, alike A-89 she cannot be said to be guilty for commission of offence under Section 5 of TADA and the relevant sections under the Arms Act, for which she is charged at the trial. Similarly, for the same reasons because of which A-89 cannot be said to be guilty for offence of conspiracy. She also cannot be said to be guilty for commission of such offence. It is indeed true that considering the role played by her in storing the weapons in her house or even for A-89 being also instrumental for taking the said weapons does create a strong suspicion of both of them being man of confidence of prime conspirator. However, since shrouding of suspicion cannot take the place of proof and there being paucity of material that both of them had knowledge of object of any particular conspiracy both of them cannot be held guilty for commission of offence of conspiracy. Thus, alike A-89 she will be also required to be held not guilty for commission of offence for which she was charged at head firstly.
34) However, considering the repeated participation of A-119 in allowing absconding accused Anees Ibrahim to store the weapons at her house or with her, herself taking up the weapons in spite of knowing the purpose for which the same were sent by Anees, the evidence pertaining to second occasion clearly revealing that the weapons were 2 AK-56 Rifles and the ammunition and thereby all the evidence establishing that the same being brought to India for commission of terrorists Act i.e. by and for the terrorists, act committed by her will clearly fall within the four corners of Section 3(3) of TADA. Similarly, her act of keeping such a material in the house, even after knowing the purpose for which the same were brought to India clearly reveals that by the same she was aiding and abetting the terrorists by contravening the provisions of the Arms Act. As such she will be required to be held guilty for commission of offence under Section 6 of TADA.
35) As a result of the aforesaid discussion, Point No. 163 to 166 and so also relevant points framed for offence of conspiracy will be required to be answered in consonance with conclusions arrived during the aforesaid discussion i.e. affirmative for holding A-89 and A-119 guilty for offence under Section 3(3) of TADA and A-119 also guilty for offence under Section 6 of TADA and negative with regard to the other charges framed against them at a trial. Thus Point No. 163 to 166 stands answered accordingly.
124. The above discussion shows that the Designated Court convicted the appellant under Section 3(3) and Section 6 of TADA only on the basis of the confessional statement of A-89 and the evidence of PW-283 Chowkidar (watchman in the building). Admittedly, the appellant, at no point of time, had made any confession admitting her guilt. Equally, it is not in dispute that no recovery has been affected from her house. The only incriminating circumstance against her is the statement of A-89 that while handing over a plastic bag, he mentioned that it contains AK-56 rifle and other arms. It is also his claim that after knowing the contents, she received the same and kept it in her house.
125. Taking note of all these aspects, absolutely, there is no case insofar as the main conspiracy against her and we are satisfied that the Designated Court has rightly acquitted her of the main charge i.e. charge firstly. However, upon perusal of the entire evidence, the judgment passed by the Designated Court is upheld to the extent of Charge secondly and fourthly.
126. In view of the minimum sentence of 5 years prescribed under Sections 3(3) and 6 of TADA, we have no other option, but to confirm the conviction and sentence as awarded by the Designated Court. Consequently, the appeal fails and is accordingly dismissed.
Appeal by the State of Maharashtra through CBI:
Criminal Appeal No. 392 of 2011
127. Though Mr. Rawal, learned ASG, prayed for conviction of A-119 for the charge framed at head firstly, i.e., conspiracy, in view of the above discussion, we are satisfied that the Designated Court was justified in arriving at such a conclusion and we fully agree with the same. Hence, the appeal filed by the State is liable to be dismissed.
128. The appellants-accused concerned are directed to surrender within a period of 4 (four) weeks from today in order to serve the remaining period of sentence. The Designated Court is directed to take appropriate steps for their custody in case of failure to comply with the above said direction.
129. For convenience, we have reproduced the conclusion arrived at in respect of all the appeals dealt with under this part in Annexure A appended hereto.
130. We must in the end express our deep gratitude to learned senior counsel/counsel for both sides who rendered relentless assistance and support to the Bench in arriving at its decision. Their efforts are salutary and we record our appreciation for the same.
Annexure A
S.No. Criminal Appeal Accused Name and Number Sentence by Award by Supreme
1. 1060/2007 Sanjay Dutt (A-117) RI for 6 years Reduced to RI
for 5 years
2. 1102/2007 Yusuf Mohsin Nullwalla (A-118) RI for 5 years Confirmed
3. 1687/2007 Kersi Bapuji Adajania (A-124) RI for 2 years Reduced to RI for 1
year
4. 596/2011 Ajai Yash Parkash Marwah Acquitted State appeal
(By State) (A-120) dismissed
5. 1104/2007 Samir Hingora (A-53) RI for 9 Reduced to the
years period already
undergone
with
1026/2012
(By State) Dismissed
6. 1001/2007 Zaibunisa Anwar Kazi (A-119) RI for 5 years Confirmed
with
392/2011
(By State) Dismissed
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