Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64) Vs. The State of Maharashtra, through STF, CBI, Mumbai
EmailAppeal: Criminal Appeal Nos. 976-977 of 2008
Petitioner: Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64)
Respondent: The State of Maharashtra, through STF, CBI, Mumbai
Apeal: Criminal Appeal Nos. 976-977 of 2008
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(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Involvement and role of accused Nasir Abdul Kader (A64) Charges of conspiracy, murder etc. – Evidence Appreciation – Evidence comprising of his own confession and that of other co-accused persons viz, A12, A13, A15, A16, A29, A32, A36, A39, A46, A49, A57, A58, A77, A94, A98 and A100 Further corroboration by PWs including that of Approver Plea that his confession was recorded at midnight, not supported by record, which showed time at 9.45 am Statement found to be voluntary Same subsequently retracted Produced before magistrate on 04.01.1995 – No complaint made Even further produced before designated court, still no complaint of any torture etc. contended Statement further corroborated by PWs and in particular approver (PW2) After blast, he remained absconding till arrest. Held that conviction and sentence imposed on him for charges framed against him are justified. Appeal dismissed.
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction Bombay blast case Involvement and role of accused Nasir Abdul Kader (A64) Charges of conspiracy, murder etc. – Evidence Appreciation – Evidence comprising of his own confession and that of other co-accused persons viz, A12, A13, A15, A16, A29, A32, A36, A39, A46, A49, A57, A58, A77, A94, A98 and A100 Further corroboration by PWs including that of Approver Plea that his confession was recorded at midnight, not supported by record, which showed time at 9.45 am Statement found to be voluntary Same subsequently retracted Produced before magistrate on 04.01.1995 – No complaint made Even further produced before designated court, still no complaint of any torture etc. contended Statement further corroborated by PWs and in particular approver (PW2) After blast, he remained absconding till arrest. Held that conviction and sentence imposed on him for charges framed against him are justified. Appeal dismissed.
Held:
On perusal of the confessional statement of the appellant (A-64), the following facts emerge:
(i) The above confession of the appellant brings out and establishes his role/involvement in the conspiracy by way of his close association with Javed Chikna (AA), one of the key conspirators;
(ii) The appellant participated in both the landings of arms and ammunitions and explosives at Shekhadi with complete knowledge of the articles smuggled and their purpose;
(iii) The appellant participated in the transportation of arms to Bombay;
(iv) The appellant participated in the weapon training at Pakistan;
(v) The appellant participated in the conspiratorial meetings at Mobinas as well as Babloos residence where plans were chalked out for committing terrorist acts.
(vi) The appellant was present at the residence of Tiger Memon at Al-Hussaini Building on the intervening night of 11/12.03.1993 and participated in the filling of RDX for the purpose of causing explosions in various parts of Bombay.
(vii) The appellant took oath that he alongwith others will do Jehad and will take revenge against Hindus and he, on being asked by the Tiger to be ready, replied that he was ready. (Para 210)
The confession was recorded at 9.45 a.m. onwards. The scrutiny of his confession and the procedure followed shows that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards prescribed under Section 15 of TADA and the rules framed thereunder. (Para 211.)
A perusal of the confessional statements of all the above accused, viz., A-12, A-13, A-15, A-16, A-29, A-32, A-36, A-39, A-46, A-49, A-57, A-58, A-77, A-94, A-98 and A-100 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-64). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established in as much as:
(i) He was closely associated with Javed Chikna (AA) who was one of the main conspirator in the blasts;
(ii) He actively participated in the landing of arms and explosives at Shekhadi smuggled for the purpose of committing terrorist acts;
(iii) He went to Pakistan and underwent training in arms and ammunitions and explosives;
(iv) After completion of the aforesaid training, he took oath of maintaining secrecy and committing Jehad alongwith other co- accused in Dubai at the instance of Tiger Memon;
(v) He participated in the conspiratorial meetings held at the residence of Babloo and Mobina where plans for executing the blasts were discussed;
(vi) At the behest of Tiger Memon, he formed a group with A-100; they were assigned the task of throwing hand grenades on aircrafts at Sahar airport and conducting survey of the same;
(vii) He conducted survey of Sahar Airport alongwith PW-2 and A-100;
(viii) He actively participated in the filling operation carried out at Al-Hussaini Building compound on the intervening night of 11/12.03.1993.
(ix) On being asked by Tiger Memon to be ready, he replied that he was ready to perform his job.
(x) He admitted his guilt by telling A-12 that he will not participate in any such activities in future; and
(xi) After the blasts, he fled from Bombay fearing the arrest. (Para 213)
On 04.01.1995, he was produced before the Magistrate upon perusal of the order dated 04.01.1995, it is clear that no complaint of any ill- treatment at the hands of police was made by the appellant or his counsel and further even during the remand till 25.01.1995 he was permitted to meet his relatives and was allowed to consult his lawyer. The prosecution further pointed out that the confession of the appellant was recorded on 22.01.1995 and 24.01.1995 and on 04.02.1995, 20.02.1995 and 13.03.1995 he was produced before the Designated Court and on which dates also no complaint of any torture, coercion or ill-treatment at the hands of police was made by the appellant. In fact, after recording of the confession, on 25.01.1995, he was produced before the Magistrate alongwith his confessional statement. In view of the same, there is no substance in the contention raised by the counsel for the appellant. (Para 214)
The deposition of PW-2 duly corroborates with the confession of the appellant as well as the confessions of the co-accused in as much as the appellant was present at Hindustan Soda Factory alongwith other co-accused, participated in both the landings of arms and explosives at Shekhadi, was well aware of the fact that the aforesaid arms and ammunitions were smuggled and landed for committing terrorist acts in order to avenge the demolition of Babri Masjid and atrocities committed on Muslims in the communal riots, participated in the weapons training at Pakistan, took oath of maintaining secrecy and committing Jehad alongwith other co-accused in Dubai at the instance of Tiger Memon, participated in the conspiratorial meetings and lastly he conducted survey of the Sahar airport as a prospective target. (Para 215.2)
The deposition of PW-367 corroborates with the confession of the appellant as well as the evidence of PW-2. (Para 215.6)
The confession of the appellant was recorded by PW-474, the then Superintendent of Police, CBI/SPE/STF, New Delhi. (Para 215.7)
We are satisfied with the deposition of PW-474 that the confession of the appellant was recorded in accordance with the prescribed rules and after following the due process of law. No discrepancy whatsoever has been established on behalf of the appellant pertaining to the aforesaid deposition. (Para 216)
The contention on behalf of the appellant that he dissociated himself at the time of the first landing at Shekhadi is not made out in the light of other evidence on record. Further, the appellant participated in the acts mentioned above willingly and with complete knowledge. He knew that the arms and ammunitions, RDX and hand grenades which were smuggled into India at Shekhadi would be used for committing terrorist acts. It is clearly established from his confession that Tiger Memon had told his associates that the smuggled arms were to be used to take revenge for the demolition of Babri Masjid and for causing blasts in Bombay. The above fact had come to his knowledge after the landing at Shekhadi and much before his going to Pakistan. Despite that, he went to Pakistan via Dubai and received training in handling of arms and ammunitions and explosives. Even in Dubai, he attended the conspiratorial meeting convened by Tiger Memon in which oath was administered to maintain secrecy regarding the aforesaid training and to take revenge. (Para 219)
After realizing that explosions took place at various places in Bombay on 12.03.1993, the appellant absconded and remained away from the clutches of law until he was arrested by the police. He stayed at various places in assumed names in order to conceal his identity to avoid his arrest. Thus, his fleeing away after the explosions took place only goes to show his association and involvement in the conspiracy to cause blasts and, undoubtedly, he was a part of it. It also points out his guilt in the commission of the said acts in furtherance of the conspiracy. (Para 220)
JUDGEMENT:
JUDGEMENT
204. Mr. Priyadarshi Manish, learned counsel appeared for the appellant (A-64) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent.
205. The present appeals are directed against the final judgment and order of conviction and sentence dated 05.10.2006 and 31.05.2007 respectively, whereby the appellant (A-64) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
206. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-64). The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at 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.
206.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly; He intentionally facilitated commission of terrorist acts and acts preparatory to terrorist acts by:
a) Going to Pakistan alongwith his co-conspirators via Dubai and acquiring weapons training in handling of arms and ammunitions and explosives with the object of committing terrorist acts;
b) Participating in the landing and transportation of arms, ammunitions and explosives smuggled into India by Tiger Memon and his associates at Shekhadi;
c) Attending conspiratorial meetings at the residence of Nazir Ahmed Anwar Shaikh @ Babloo and Ms. Mobina @ Baya Moosa Bhiwandiwala;
d) Participating in filling RDX in vehicles on the intervening night of 11th/12th March 1993, at Al-Hussaini Building, with the object of causing explosions in Bombay.
207. The charges mentioned above were proved against the appellant (A-64). The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge firstly)
ii) The appellant has also been convicted under Section 3(3) of TADA for commission of offences at head secondly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge secondly)
Evidence
208. The evidence against the appellant (A-64) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional statement of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64)
209. The involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 22.01.1995 (9:15 hrs.) and 24.01.1995 (9:45 hrs.) by Shri H. C. Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The said confessional statement is summarized hereinbelow:-
(i) His father-in-law used to run the business of matka in Bandra. He joined his business in 1984, after his marriage. After one year, he started his own business of matka at Mahim alongwith his father-in-law during which period he got introduced and acquainted with Javed Chikna (AA), Yeda Yakub, Anwar Theba and others. He also described Javed Chikna as the dada of that area – Mahim.
(ii) The matka business of his father-in-law closed down. Thereafter, A-64 worked as a driver with one Alamgir Muttonwala of Mahim.
(iii) During December, 1992, riots, Muttonwalas car was burnt down and the appellant was rendered jobless. So, he asked Javed Chikna for a job.
(iv) He again met Javed Chikna for the purpose of job in the last week of January, 1993, at which time, Javed Chikna was waiting for Tiger Memon near Mahim Dargah alongwith Anwar Theba (AA), Abdul Gani Ismail Turk (A-11), Shafi Zariwala (AA) and Rafique Madi (A-46).
(v) At that time, he got introduced to Tiger Memon. He told Tiger that he was unemployed on which Tiger asked the appellant for his passport which he handed over to Javed Chikna.
(vi) He knew that Tiger Memon and his family members were residing at Al-Hussaini Building in Mahim since 1990-91.
(vii) Javed Chikna, Anwar Theba, Abdul Gani Ismail Turk, Shafi Zariwala and Rafique Madi used to visit Tigers place and accompanied him somewhere.
(viii) The appellant knew that Tiger Memon was a smuggler and a big don.
(ix) Javed Chikna told him to come to Soda Factory at Mahim at 8.30 p.m. as he had to go alongwith others for collection of Tiger Memons consignment.
(x) Accordingly, the appellant went to Soda factory and from there he went to Hotel Persian Darbar, Panvel alongwith Shafi Zariwala and Farooq Pawale (A-16) in a blue coloured Commander jeep.
(xi) Tiger Memon had also arrived there after sometime alongwith Abdul Gani.
(xii) Thereafter, they all went to Hotel Big Splash, Alibaug where Javed Chikna and others were already present. They all spent the night at Hotel Big Splash. Next day, Dawood Taklya (A-14) and Dadabhai (A-17) had come to meet Tiger Memon and after talking to them, Tiger told everyone that a consignment would reach the seashore at night.
(xiii) Tiger Memon also instructed them to surround Police or Customs officers in case they arrived. On this, he informed .We were all ready to follow the instructions of Tiger Memon
(xiv) The appellant went to Shekhadi alongwith others where Tiger gave him and others a revolver and told them to remain close to the shore.
(xv) The goods/consignment (60-70 large packets) arrived by sea were brought to the coast by Tiger and others.
(xvi) The above packets were unloaded by some villagers deployed by Dawood Taklya and then loaded into a truck and transported to Waghani Tower.
(xvii) On reaching Waghani Tower, the aforesaid packets were opened. It contained arms, explosives and cartridges. All the arms were kept in the secret cavities made in the jeeps.
(xviii) Thereafter, Tiger Memon directed the appellant and A-12 to drive one of the above jeeps containing arms filled in cavities therein to Bombay and to park the same outside Shanti Nursing Home leaving the keys inside the vehicle.
(xix) Accordingly, the appellant and A-12 drove to Bombay and took a stopover at Khandala. The appellant got scared after seeing the arms and therefore he sneaked out of the hotel room at Khandala when A-12 was asleep and went to Bombay by a State transport bus.
(xx) The appellant was paid Rs. 2,000/- by Javed Chikna for the above work at Shekhadi.
(xxi) After few days, he went alongwith Yeda Yakub, Riyaz Khatri, Karimulla (all absconding), deceased Akbar, Ethesham (A-58) and Munna (A-24) to Shekhadi again and participated in the landing of arms and ammunitions and explosives.
(xxii) It had come to his knowledge that the aforesaid arms were going to be used to take revenge against Hindus for the demolition of Babri Masjid and that the wires brought by Shafi in his jeep were going to be used to cause blasts in Bombay.
(xxiii) On 17.02.1993, he went to Dubai via Emirates flight. From there, he alongwith other co-accused went to Pakistan. At Islamabad, their passports and tickets were not checked.
(xxiv) He was given a fake name – Abdullah in Pakistan. A-12 told him that they were to be given training in use of arms for taking revenge against Hindus.
(xxv) Thereafter, he underwent weapons training. The training was given by the officers of Pakistan Army.
(xxvi) After completion of the training, he alongwith others went back to Dubai. There were arrangements to board the flight for Dubai without any checking at Islamabad Airport. After reaching Dubai, their passports were checked but no body asked them as to where they had gone; Tiger gave 150 dirhams to each one of them and administered oath of maintaining secrecy regarding the aforesaid training and for taking revenge against Hindus for the demolition of Babri Masjid by swearing on the Quran.
(xxvii) Before leaving from Dubai to Bombay, they were told by Tiger Memon that their passports did not bear any stamp regarding their visit to Pakistan and for the same reason directed them to go through Counter No. 3 during their arrival at Bombay Airport in order to avoid any problem.
(xxviii) Then he returned to Bombay and after 2-3 days, he attended/participated in a meeting at the residence of A-96 on 06.03.1993 where everyone who received training in Pakistan was present.
(xxix) At the aforesaid meeting, at the behest of Tiger Memon, the appellant formed a group with A-100 and they were assigned the task of reconnaissance of Sahar Airport for throwing of hand grenades on aircrafts.
(xxx) Accordingly, on the next day, i.e., on 07.03.1993, he alongwith PW-2 and A-100 conducted the survey of Sahar Airport and realized the difficulty in execution of the same.
(xxxi) In the meeting at Babloos place on 08.03.1993, A-64 and A-100 expressed the above difficulty to Tiger Memon, but Tiger did not agree to it and told them that the task has to be executed by any means.
(xxxii) He also participated in the second meeting at the residence of A-96 on 10.03.1993 where Tiger Memon directed everyone present therein to be ready for their respective works. All the people present there replied that they all were ready.
(xxxiii) He was present at Al-Hussaini building on the night of 11.03.1993 and he saw RDX being loaded in vehicles. At the instance of Javed Chikna, he also brought 15-16 sacks of iron scrapings kept outside the building compound and kept it between the RDX loaded in the vehicles.
(xxxiv) The appellant stated that the material (RDX) used at Al-Hussaini was similar to the material he saw at Shekhadi and Waghani Tower and it appeared to him that this material was being loaded in the vehicles for the purpose of causing bomb blasts.
(xxxv) The appellant was present at Al-Hussaini building till 3 a.m. and Tiger Memon was also present there.
(xxxvi) The appellant and Parvez decided that in future they would not participate in any such activities.
(xxxvii) After the blast, he went to several places, viz., Ahmedabad, Ajmer, Karnataka and then to Hyderabad fearing arrest by the police.
210. On perusal of the aforesaid confessional statement of the appellant (A-64), the following facts emerge:
(i) The above confession of the appellant brings out and establishes his role/involvement in the conspiracy by way of his close association with Javed Chikna (AA), one of the key conspirators;
(ii) The appellant participated in both the landings of arms and ammunitions and explosives at Shekhadi with complete knowledge of the articles smuggled and their purpose;
(iii) The appellant participated in the transportation of arms to Bombay;
(iv) The appellant participated in the weapon training at Pakistan;
(v) The appellant participated in the conspiratorial meetings at Mobinas as well as Babloos residence where plans were chalked out for committing terrorist acts.
(vi) The appellant was present at the residence of Tiger Memon at Al-Hussaini Building on the intervening night of 11/12.03.1993 and participated in the filling of RDX for the purpose of causing explosions in various parts of Bombay.
(vii) The appellant took oath that he alongwith others will do Jehad and will take revenge against Hindus and he, on being asked by the Tiger to be ready, replied that he was ready.
211. It has been contended on behalf of the appellant that his confession was recorded at midnight. The said contention is not supported by any record, in fact, the confession was recorded at 9.45 a.m. onwards. The scrutiny of his confession and the procedure followed shows that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards prescribed under Section 15 of TADA and the rules framed thereunder. The said fact has also been proved by Shri H. C. Singh (PW-474).
Confessional Statements of co-accused:
212. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-64) are summarized hereinbelow:
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
212.1 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession reveals as under:
(i) A-12 participated in the landing of arms at Shekhadi and one jeep filled with arms was entrusted to him and the appellant.
(ii) The appellant left for Bombay without informing him.
(iii) After the second landing at Shekhadi, the appellant came to stay over at Hotel Persian Durbar, Panvel where A-12 was also staying.
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
212.2 Confessional statement of A-13 under Section 15 of TADA was recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant attended the conspiratorial meeting on 10.03.1993 at Mobinas residence in Bandra.
Confessional Statement of Imtiaz Yunus Miya Ghavate (A-15)
212.3 Confessional statement of A-15 under Section 15 of TADA was recorded on 07.05.1993 (12:30 hrs.) and 09.05.1993 (13:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant participated in the landing at Shekhadi.
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
212.4 Confessional statement of A-16 under Section 15 of TADA was recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals that:
(i) The appellant, Usman and Parvez Qureshi were friends of Javed Chikna and were brutal persons;
(ii) At the instance of Javed Chikna, A-16 accompanied him to Shekhadi in a blue coloured jeep alongwith the appellant and others.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
212.5 Confessional statement of A-29 under Section 15 of TADA was recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant accompanied Javed Chikna, A-29 and others in a blue coloured Commander jeep at the time of the first landing of arms at Shekhadi.
(ii) The appellant alongwith A-29 and others went in a jeep to Waghani Tower.
(iii) A-29 met the appellant in Dubai.
(iv) The appellant was present at Al-Hussaini building (house of Tiger) on 11.03.1993.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
212.6 Confessional statement of A-32 under Section 15 of TADA was recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant underwent training at Pakistan where he was given a fake name Abdullah.
Confessional Statement of Abdul Akhtar Khan (A-36)
212.7 Confessional statement of A-36 under Section 15 of TADA was recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession corroborates the fact that the appellant travelled to Pakistan via Dubai where he underwent weapons training.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
212.8 Confessional statement of A-39 under Section 15 of TADA was recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said confession reveals as under:
(i) On 07.03.1993, the appellant took A-39 to Babloos house where Tiger Memon and others also arrived after sometime and a meeting was held.
(ii) On 10.03.1993, the appellant had come alongwith Javed Chikna and others to Bandra. Tiger Memon also came there and informed them that they were required to do the work and for that they will be paid Rs. 5,000/- each.
Confessional Statement of Mohd. Rafiqu Musa Miariwala @ Rafiq Madi (A- 46)
212.9 Confessional statement of A-46 under Section 15 of TADA was recorded on 21.04.1993 (19:00 hrs.) and 23.04.1993 (21:25 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant participated in the landing at Shekhadi.
Confessional Statement of Nasim Ashraf Sherali Barmare (A-49)
212.10 Confessional statement of A-49 under Section 15 of TADA was recorded on 16.05.1993 (9:30 hrs.) and 18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant participated in the weapons training at Pakistan.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
212.11 Confessional statement of A-57 under Section 15 of TADA was recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant was a friend of Javed Chikna.
(ii) On 08/09.02.1993, A-57 went to meet Javed Chikna at Soda Factory where he told him that they all have to go somewhere. At that time, the appellant was also present there.
(iii) Thereafter, all of them went to a place via Goa Highway using a car.
(iv) On 10.02.1993, Shafi took A-57, the appellant and others to Hotel Persian Darbar by a jeep where they all had lunch.
(v) A-57 attended a meeting at a flat in Bandra on 10.03.1993 where the appellant and many others were also present. In the said meeting, Tiger Memon gave a provoking lecture on taking revenge owing to Muslims being killed in the riots; at the instance of Tiger Memon, groups were formed to execute the plans to cause blasts.
(vi) On the intervening night of 11/12.03.1993, Javed Chikna asked the appellant to load Black Soap in the garage. The appellant and A-57 filled iron pieces in the Commander jeep.
Confessional Statement of Shaikh Mohd. Ethesham (A-58)
212.12 Confessional statement of A-58 under Section 15 of TADA was recorded on 15.05.1993 (9:30 hrs.) and 12.06.1993 by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals the fact that the appellant was present at the time of landing at Shekhadi.
Confessional Statement of Gul Mohd. Noor Mohd. Shaikh (A-77)
212.13 Confessional statement of A-77 under Section 15 of TADA was recorded on 17.04.1993 (14:10 hrs.) and 19.04.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant went to Dubai from Bombay on 17.02.1993 alongwith others.
(ii) From Dubai, the appellant went to Pakistan via PIA flight alongwith others.
(iii) All of the above participated in the training of arms and ammunitions at Pakistan.
(iv) After completion of the training, they returned to Dubai and were administered oath of secrecy and committing Jehad by Tiger Memon.
Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
212.14 Confessional statement of A-94 under Section 15 of TADA was recorded on 14.05.1993 (18:30 hrs.) and 16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) He met the appellant and other co-accused persons in Dubai.
(ii) All of them went to Islamabad from Dubai.
(iii) All of them participated in the training of arms and ammunition at Pakistan.
(iv) After completion of the training and returning to Dubai, they all were administered oath of secrecy by Tiger Memon.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
212.15 Confessional statement of A-98 under Section 15 of TADA was recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant participated in the weapons training at Pakistan alongwith A-98 and others.
(ii) The appellant along with others was administered oath in order to combat Jehad.
(iii) The appellant returned from Dubai to Bombay on 03.03.1993 alongwith Gullu and A-98.
Confessional Statement of Mohd. Parvez Zulfikar Qureshi (A-100)
212.16 Confessional statement of A-100 under Section 15 of TADA was recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals as under:
(i) The appellant was a friend of Javed Chikna and he accompanied Javed Chikna, A-100 and others while going to seashore in a jeep.
(ii) The appellant participated in the weapons training at Pakistan alongwith A-100 and others.
(iii) After completion of the training, they returned to Dubai and were administered oath of secrecy and of committing Jehad by Tiger Memon.
213. A perusal of the confessional statements of all the above accused, viz., A-12, A-13, A-15, A-16, A-29, A-32, A-36, A-39, A-46, A-49, A-57, A-58, A-77, A-94, A-98 and A-100 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-64). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established in as much as:
(i) He was closely associated with Javed Chikna (AA) who was one of the main conspirator in the blasts;
(ii) He actively participated in the landing of arms and explosives at Shekhadi smuggled for the purpose of committing terrorist acts;
(iii) He went to Pakistan and underwent training in arms and ammunitions and explosives;
(iv) After completion of the aforesaid training, he took oath of maintaining secrecy and committing Jehad alongwith other co- accused in Dubai at the instance of Tiger Memon;
(v) He participated in the conspiratorial meetings held at the residence of Babloo and Mobina where plans for executing the blasts were discussed;
(vi) At the behest of Tiger Memon, he formed a group with A-100; they were assigned the task of throwing hand grenades on aircrafts at Sahar airport and conducting survey of the same;
(vii) He conducted survey of Sahar Airport alongwith PW-2 and A-100;
(viii) He actively participated in the filling operation carried out at Al-Hussaini Building compound on the intervening night of 11/12.03.1993.
(ix) On being asked by Tiger Memon to be ready, he replied that he was ready to perform his job.
(x) He admitted his guilt by telling A-12 that he will not participate in any such activities in future; and
(xi) After the blasts, he fled from Bombay fearing the arrest.
214. Mr. Manish, learned counsel for the appellant, contended that the confession was subsequently retracted on 15.02.1995. It is also contended that the confessional statements of the co-accused above as relied upon by the prosecution against him were subsequently retracted, and therefore, it is not safe to base the conviction on any of the aforesaid confessions. It has been further contended on behalf of the appellant that he was, in fact, arrested on 29.12.1994 though his arrest has been shown on 03.01.1995 and on 04.01.1995, he was produced before the Magistrate and that he was tortured, coerced and induced to make a confession. The prosecution pointed out that upon perusal of the order dated 04.01.1995, it is clear that no complaint of any ill- treatment at the hands of police was made by the appellant or his counsel and further even during the remand till 25.01.1995 he was permitted to meet his relatives and was allowed to consult his lawyer. The prosecution further pointed out that the confession of the appellant was recorded on 22.01.1995 and 24.01.1995 and on 04.02.1995, 20.02.1995 and 13.03.1995 he was produced before the Designated Court and on which dates also no complaint of any torture, coercion or ill-treatment at the hands of police was made by the appellant. In fact, after recording of the confession, on 25.01.1995, he was produced before the Magistrate alongwith his confessional statement. In view of the same, there is no substance in the contention raised by the counsel for the appellant. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion.
Deposition of Prosecution Witnesses:
215. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Mohd. Usman Jan Khan (PW-2)
215.1 The relevant material in his evidence is as follows:-
(i) PW-2 knows the appellant. He identified the appellant in the court.
(ii) He met the appellant and other co-accused on 02.02.1993 at Hindustan Soda Factory and they all left for Panvel and, thereafter, to Alibaug in a blue coloured Commander jeep and stayed in the same room alongwith the appellant at Hotel Big Splash, Alibaug.
(iii) On the same day, at Hotel Big Splash, Tiger Memon convened a meeting in which he addressed that Muslims have suffered a lot in the communal riots in Bombay and Surat and they all have to help him in taking revenge against Hindus for this. He also told them that arms and ammunitions were about to arrive from Pakistan on that day.
(iv) The appellant was present in the aforesaid meeting. Thereafter, all of them left for Shekhadi Coast in two Commander jeeps.
(v) The appellant was present at Waghani Tower where arms and ammunitions were transported and eventually opened, unloaded and then stored in the Tower.
(vi) The appellant also participated in the second landing at Shekhadi.
(vii) The appellant underwent training at Pakistan.
(viii) On completion of the aforesaid training and after returning to Dubai, PW-2 alongwith the appellant and others took oath of maintaining secrecy by swearing on the Quran.
(ix) The appellant attended the meeting at Shakils house on 07.03.1993 where groups for surveying targets were formed. PW-2 and the appellant were in the same group.
(x) The appellant and PW-2 conducted survey of the Sahar Airport as a prospective target.
(xi) The appellant attended meeting at Babloos residence on 08.03.1993.
(xii) The appellant attended meeting at Shakils residence on 10.03.1993.
215.2 The above deposition of PW-2 duly corroborates with the confession of the appellant as well as the confessions of the co-accused in as much as the appellant was present at Hindustan Soda Factory alongwith other co-accused, participated in both the landings of arms and explosives at Shekhadi, was well aware of the fact that the aforesaid arms and ammunitions were smuggled and landed for committing terrorist acts in order to avenge the demolition of Babri Masjid and atrocities committed on Muslims in the communal riots, participated in the weapons training at Pakistan, took oath of maintaining secrecy and committing Jehad alongwith other co-accused in Dubai at the instance of Tiger Memon, participated in the conspiratorial meetings and lastly he conducted survey of the Sahar airport as a prospective target.
Deposition of Anthony S. Mathew (PW-221)
215.3 At the relevant time, PW 221 was working as an Immigration Officer and proved the departure of the appellant to Dubai on 17.02.1993 from Bombay. The relevant entries on the Embarkation Card (X-340) dated 17.02.1993 concerning the departure which was duly stamped by him have been marked as Exh Nos. 979 and 979-A.
Deposition of Ramchandra Barkade (PW-231)
215.4 PW-231 is an Immigration Officer and has proved the arrival of the appellant to Bombay on 03.03.1993 from Dubai. The relevant endorsements on the Disembarkation Card (X-373) dated 03.03.1993 concerning the arrival have been marked as Exh. Nos. 1019 and 1019-A.
Deposition of Abdul Siddiqui (PW-367)
215.5 Further, the deposition of PW-367 also proved that the appellant went to Dubai on 17.02.1993 from Sahar Airport, Bombay. PW-367 was also travelling to Dubai on 17.02.1993 by the same flight. His deposition reveals the following:
(i) He knew the appellant for the last 10 years as he resided in Mahim, where the appellant also resided.
(ii) He travelled to Dubai on 17.02.1993 by an Emirates Airlines flight.
(iii) When PW-367 was standing in the queue for boarding pass, he saw the appellant and Yeda Yakub who were also standing in the same queue.
(iv) He identified the appellant in the court.
(v) In Dubai, he stayed in Hotel Delhi Darbar where he again met the appellant.
215.6 The aforesaid deposition of PW-367 corroborates with the confession of the appellant as well as the evidence of PW-2.
Deposition of Harishchandra Singh (PW-474)
215.7 The confession of the appellant was recorded by PW-474, the then Superintendent of Police, CBI/SPE/STF, New Delhi. His deposition reveals the following:
(i) He had not taken any part in the investigation of the Bombay Blasts case.
(ii) He received a telephonic request from Deputy Superintendent of Police, Rishi Prakash of CBI/STF, Bombay, for recording the confession of the appellant; accordingly, he reached the Bombay office on 22.01.1995.
(iii) Thereafter, a written request was made to him for recording the said confession and after making endorsement upon the request letter, he asked for the appellant to be produced before him.
(iv) He ensured that the appellant was making a voluntary confession and that he was not pressurized, coerced or threatened by anybody to give the confession. He also gave him time till 24.01.1995 for re-consideration of his desire to make a confession.
(v) On 24.01.1995, the appellant was again produced before him. They were the only persons in the Chamber.
(vi) He ascertained whether sufficient time was given to the appellant for re-consideration or not and warned the appellant that any confession made by him would be used against him.
(vii) He recorded the confession of the appellant and also read it over to him.
(viii) The appellant told him that the confession was correctly recorded and the same was also signed by him as well as by PW-474.
216. We are satisfied with the deposition of PW-474 that the confession of the appellant was recorded in accordance with the prescribed rules and after following the due process of law. No discrepancy whatsoever has been established on behalf of the appellant pertaining to the aforesaid deposition.
Sentence:
217. The prosecution pointed out that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 06.10.2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) He has been in custody since 03.01.1995;
(ii) His wife is suffering from TB and low blood pressure since last 8 years and his son had suffered head injury;
(iii) He had been to Shekhadi under the impression that it was landing of silver goods and after realizing that it was not silver, he disassociated himself from the landing;
(iv) He was forced to participate in the second landing since Tiger Memon, Javed Chikna and others had threatened to kill his family members;
(v) In the said conspiratorial meetings, he protested to carry out any operation as it was the month of Ramzan but he was threatened by Tiger and Javed that he would be shot on the spot if he backs out;
(vi) If he gets a chance, he would be able to look after his family and would be able to lead the life as a law abiding citizen; and
(vii) Ultimately, he was not involved in the commission of any terrorist act and for the acts committed by him, he had undergone sufficient sentence since he has been in custody for about 12 years (as on date approx. 18 years), so a lenient view be taken while awarding sentence to him.
218. It is pointed out by the prosecution that all the above factors have been duly considered by the Designated Court and the aforesaid contentions are devoid of any merit having regard to the fact that the appellant had sufficient potential for commission of terrorist acts owing to have acquired training in handling sophisticated arms and ammunitions at Pakistan. Further, it is stated that his contention that he was forced to participate in the second landing since Tiger Memon, Javed Chikna and others had threatened to kill his family members is not tenable as despite being threatened at the time of first landing and after getting knowledge that the said landing was of arms and ammunitions and explosives, he chose to remain silent instead of approaching the police or taking recourse to law. Despite all this, he participated in the second landing at Shekhadi, and moreover, he went to Pakistan at the instance of the same persons who had threatened him. Further, when Tiger Memon asked him to be ready, he told him that he was ready on the night of 11.03.1993.
219. It is clear that the contention on behalf of the appellant that he dissociated himself at the time of the first landing at Shekhadi is not made out in the light of other evidence on record. Further, the appellant participated in the acts mentioned above willingly and with complete knowledge. He knew that the arms and ammunitions, RDX and hand grenades which were smuggled into India at Shekhadi would be used for committing terrorist acts. It is clearly established from his confession that Tiger Memon had told his associates that the smuggled arms were to be used to take revenge for the demolition of Babri Masjid and for causing blasts in Bombay. As submitted, the above fact had come to his knowledge after the landing at Shekhadi and much before his going to Pakistan. Despite that, he went to Pakistan via Dubai and received training in handling of arms and ammunitions and explosives. Even in Dubai, he attended the conspiratorial meeting convened by Tiger Memon in which oath was administered to maintain secrecy regarding the aforesaid training and to take revenge.
220. It is also relevant to note that after realizing that explosions took place at various places in Bombay on 12.03.1993, the appellant absconded and remained away from the clutches of law until he was arrested by the police. He stayed at various places in assumed names in order to conceal his identity to avoid his arrest. Thus, his fleeing away after the explosions took place only goes to show his association and involvement in the conspiracy to cause blasts and, undoubtedly, he was a part of it. It also points out his guilt in the commission of the said acts in furtherance of the conspiracy.
221. Therefore, in view of the entire evidence enumerated above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the said offences for which he has been charged and the sentence awarded by the Designated Court to the appellant is justified. Consequently, the appeals fail and are liable to be dismissed.
204. Mr. Priyadarshi Manish, learned counsel appeared for the appellant (A-64) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent.
205. The present appeals are directed against the final judgment and order of conviction and sentence dated 05.10.2006 and 31.05.2007 respectively, whereby the appellant (A-64) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
206. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-64). The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) and Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, hand grenades and other explosive substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of or damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, hand grenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing hand-grenades at 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.
206.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly; He intentionally facilitated commission of terrorist acts and acts preparatory to terrorist acts by:
a) Going to Pakistan alongwith his co-conspirators via Dubai and acquiring weapons training in handling of arms and ammunitions and explosives with the object of committing terrorist acts;
b) Participating in the landing and transportation of arms, ammunitions and explosives smuggled into India by Tiger Memon and his associates at Shekhadi;
c) Attending conspiratorial meetings at the residence of Nazir Ahmed Anwar Shaikh @ Babloo and Ms. Mobina @ Baya Moosa Bhiwandiwala;
d) Participating in filling RDX in vehicles on the intervening night of 11th/12th March 1993, at Al-Hussaini Building, with the object of causing explosions in Bombay.
207. The charges mentioned above were proved against the appellant (A-64). The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
i) The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge firstly)
ii) The appellant has also been convicted under Section 3(3) of TADA for commission of offences at head secondly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge secondly)
Evidence
208. The evidence against the appellant (A-64) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional statement of Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64)
209. The involvement of the appellant in the conspiracy is evident from his own confession recorded under Section 15 of TADA on 22.01.1995 (9:15 hrs.) and 24.01.1995 (9:45 hrs.) by Shri H. C. Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The said confessional statement is summarized hereinbelow:-
(i) His father-in-law used to run the business of matka in Bandra. He joined his business in 1984, after his marriage. After one year, he started his own business of matka at Mahim alongwith his father-in-law during which period he got introduced and acquainted with Javed Chikna (AA), Yeda Yakub, Anwar Theba and others. He also described Javed Chikna as the dada of that area – Mahim.
(ii) The matka business of his father-in-law closed down. Thereafter, A-64 worked as a driver with one Alamgir Muttonwala of Mahim.
(iii) During December, 1992, riots, Muttonwalas car was burnt down and the appellant was rendered jobless. So, he asked Javed Chikna for a job.
(iv) He again met Javed Chikna for the purpose of job in the last week of January, 1993, at which time, Javed Chikna was waiting for Tiger Memon near Mahim Dargah alongwith Anwar Theba (AA), Abdul Gani Ismail Turk (A-11), Shafi Zariwala (AA) and Rafique Madi (A-46).
(v) At that time, he got introduced to Tiger Memon. He told Tiger that he was unemployed on which Tiger asked the appellant for his passport which he handed over to Javed Chikna.
(vi) He knew that Tiger Memon and his family members were residing at Al-Hussaini Building in Mahim since 1990-91.
(vii) Javed Chikna, Anwar Theba, Abdul Gani Ismail Turk, Shafi Zariwala and Rafique Madi used to visit Tigers place and accompanied him somewhere.
(viii) The appellant knew that Tiger Memon was a smuggler and a big don.
(ix) Javed Chikna told him to come to Soda Factory at Mahim at 8.30 p.m. as he had to go alongwith others for collection of Tiger Memons consignment.
(x) Accordingly, the appellant went to Soda factory and from there he went to Hotel Persian Darbar, Panvel alongwith Shafi Zariwala and Farooq Pawale (A-16) in a blue coloured Commander jeep.
(xi) Tiger Memon had also arrived there after sometime alongwith Abdul Gani.
(xii) Thereafter, they all went to Hotel Big Splash, Alibaug where Javed Chikna and others were already present. They all spent the night at Hotel Big Splash. Next day, Dawood Taklya (A-14) and Dadabhai (A-17) had come to meet Tiger Memon and after talking to them, Tiger told everyone that a consignment would reach the seashore at night.
(xiii) Tiger Memon also instructed them to surround Police or Customs officers in case they arrived. On this, he informed .We were all ready to follow the instructions of Tiger Memon
(xiv) The appellant went to Shekhadi alongwith others where Tiger gave him and others a revolver and told them to remain close to the shore.
(xv) The goods/consignment (60-70 large packets) arrived by sea were brought to the coast by Tiger and others.
(xvi) The above packets were unloaded by some villagers deployed by Dawood Taklya and then loaded into a truck and transported to Waghani Tower.
(xvii) On reaching Waghani Tower, the aforesaid packets were opened. It contained arms, explosives and cartridges. All the arms were kept in the secret cavities made in the jeeps.
(xviii) Thereafter, Tiger Memon directed the appellant and A-12 to drive one of the above jeeps containing arms filled in cavities therein to Bombay and to park the same outside Shanti Nursing Home leaving the keys inside the vehicle.
(xix) Accordingly, the appellant and A-12 drove to Bombay and took a stopover at Khandala. The appellant got scared after seeing the arms and therefore he sneaked out of the hotel room at Khandala when A-12 was asleep and went to Bombay by a State transport bus.
(xx) The appellant was paid Rs. 2,000/- by Javed Chikna for the above work at Shekhadi.
(xxi) After few days, he went alongwith Yeda Yakub, Riyaz Khatri, Karimulla (all absconding), deceased Akbar, Ethesham (A-58) and Munna (A-24) to Shekhadi again and participated in the landing of arms and ammunitions and explosives.
(xxii) It had come to his knowledge that the aforesaid arms were going to be used to take revenge against Hindus for the demolition of Babri Masjid and that the wires brought by Shafi in his jeep were going to be used to cause blasts in Bombay.
(xxiii) On 17.02.1993, he went to Dubai via Emirates flight. From there, he alongwith other co-accused went to Pakistan. At Islamabad, their passports and tickets were not checked.
(xxiv) He was given a fake name – Abdullah in Pakistan. A-12 told him that they were to be given training in use of arms for taking revenge against Hindus.
(xxv) Thereafter, he underwent weapons training. The training was given by the officers of Pakistan Army.
(xxvi) After completion of the training, he alongwith others went back to Dubai. There were arrangements to board the flight for Dubai without any checking at Islamabad Airport. After reaching Dubai, their passports were checked but no body asked them as to where they had gone; Tiger gave 150 dirhams to each one of them and administered oath of maintaining secrecy regarding the aforesaid training and for taking revenge against Hindus for the demolition of Babri Masjid by swearing on the Quran.
(xxvii) Before leaving from Dubai to Bombay, they were told by Tiger Memon that their passports did not bear any stamp regarding their visit to Pakistan and for the same reason directed them to go through Counter No. 3 during their arrival at Bombay Airport in order to avoid any problem.
(xxviii) Then he returned to Bombay and after 2-3 days, he attended/participated in a meeting at the residence of A-96 on 06.03.1993 where everyone who received training in Pakistan was present.
(xxix) At the aforesaid meeting, at the behest of Tiger Memon, the appellant formed a group with A-100 and they were assigned the task of reconnaissance of Sahar Airport for throwing of hand grenades on aircrafts.
(xxx) Accordingly, on the next day, i.e., on 07.03.1993, he alongwith PW-2 and A-100 conducted the survey of Sahar Airport and realized the difficulty in execution of the same.
(xxxi) In the meeting at Babloos place on 08.03.1993, A-64 and A-100 expressed the above difficulty to Tiger Memon, but Tiger did not agree to it and told them that the task has to be executed by any means.
(xxxii) He also participated in the second meeting at the residence of A-96 on 10.03.1993 where Tiger Memon directed everyone present therein to be ready for their respective works. All the people present there replied that they all were ready.
(xxxiii) He was present at Al-Hussaini building on the night of 11.03.1993 and he saw RDX being loaded in vehicles. At the instance of Javed Chikna, he also brought 15-16 sacks of iron scrapings kept outside the building compound and kept it between the RDX loaded in the vehicles.
(xxxiv) The appellant stated that the material (RDX) used at Al-Hussaini was similar to the material he saw at Shekhadi and Waghani Tower and it appeared to him that this material was being loaded in the vehicles for the purpose of causing bomb blasts.
(xxxv) The appellant was present at Al-Hussaini building till 3 a.m. and Tiger Memon was also present there.
(xxxvi) The appellant and Parvez decided that in future they would not participate in any such activities.
(xxxvii) After the blast, he went to several places, viz., Ahmedabad, Ajmer, Karnataka and then to Hyderabad fearing arrest by the police.
210. On perusal of the aforesaid confessional statement of the appellant (A-64), the following facts emerge:
(i) The above confession of the appellant brings out and establishes his role/involvement in the conspiracy by way of his close association with Javed Chikna (AA), one of the key conspirators;
(ii) The appellant participated in both the landings of arms and ammunitions and explosives at Shekhadi with complete knowledge of the articles smuggled and their purpose;
(iii) The appellant participated in the transportation of arms to Bombay;
(iv) The appellant participated in the weapon training at Pakistan;
(v) The appellant participated in the conspiratorial meetings at Mobinas as well as Babloos residence where plans were chalked out for committing terrorist acts.
(vi) The appellant was present at the residence of Tiger Memon at Al-Hussaini Building on the intervening night of 11/12.03.1993 and participated in the filling of RDX for the purpose of causing explosions in various parts of Bombay.
(vii) The appellant took oath that he alongwith others will do Jehad and will take revenge against Hindus and he, on being asked by the Tiger to be ready, replied that he was ready.
211. It has been contended on behalf of the appellant that his confession was recorded at midnight. The said contention is not supported by any record, in fact, the confession was recorded at 9.45 a.m. onwards. The scrutiny of his confession and the procedure followed shows that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards prescribed under Section 15 of TADA and the rules framed thereunder. The said fact has also been proved by Shri H. C. Singh (PW-474).
Confessional Statements of co-accused:
212. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-64) are summarized hereinbelow:
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
212.1 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The said confession reveals as under:
(i) A-12 participated in the landing of arms at Shekhadi and one jeep filled with arms was entrusted to him and the appellant.
(ii) The appellant left for Bombay without informing him.
(iii) After the second landing at Shekhadi, the appellant came to stay over at Hotel Persian Durbar, Panvel where A-12 was also staying.
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
212.2 Confessional statement of A-13 under Section 15 of TADA was recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant attended the conspiratorial meeting on 10.03.1993 at Mobinas residence in Bandra.
Confessional Statement of Imtiaz Yunus Miya Ghavate (A-15)
212.3 Confessional statement of A-15 under Section 15 of TADA was recorded on 07.05.1993 (12:30 hrs.) and 09.05.1993 (13:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant participated in the landing at Shekhadi.
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
212.4 Confessional statement of A-16 under Section 15 of TADA was recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals that:
(i) The appellant, Usman and Parvez Qureshi were friends of Javed Chikna and were brutal persons;
(ii) At the instance of Javed Chikna, A-16 accompanied him to Shekhadi in a blue coloured jeep alongwith the appellant and others.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
212.5 Confessional statement of A-29 under Section 15 of TADA was recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant accompanied Javed Chikna, A-29 and others in a blue coloured Commander jeep at the time of the first landing of arms at Shekhadi.
(ii) The appellant alongwith A-29 and others went in a jeep to Waghani Tower.
(iii) A-29 met the appellant in Dubai.
(iv) The appellant was present at Al-Hussaini building (house of Tiger) on 11.03.1993.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
212.6 Confessional statement of A-32 under Section 15 of TADA was recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant underwent training at Pakistan where he was given a fake name Abdullah.
Confessional Statement of Abdul Akhtar Khan (A-36)
212.7 Confessional statement of A-36 under Section 15 of TADA was recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession corroborates the fact that the appellant travelled to Pakistan via Dubai where he underwent weapons training.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
212.8 Confessional statement of A-39 under Section 15 of TADA was recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said confession reveals as under:
(i) On 07.03.1993, the appellant took A-39 to Babloos house where Tiger Memon and others also arrived after sometime and a meeting was held.
(ii) On 10.03.1993, the appellant had come alongwith Javed Chikna and others to Bandra. Tiger Memon also came there and informed them that they were required to do the work and for that they will be paid Rs. 5,000/- each.
Confessional Statement of Mohd. Rafiqu Musa Miariwala @ Rafiq Madi (A- 46)
212.9 Confessional statement of A-46 under Section 15 of TADA was recorded on 21.04.1993 (19:00 hrs.) and 23.04.1993 (21:25 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant participated in the landing at Shekhadi.
Confessional Statement of Nasim Ashraf Sherali Barmare (A-49)
212.10 Confessional statement of A-49 under Section 15 of TADA was recorded on 16.05.1993 (9:30 hrs.) and 18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant participated in the weapons training at Pakistan.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
212.11 Confessional statement of A-57 under Section 15 of TADA was recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant was a friend of Javed Chikna.
(ii) On 08/09.02.1993, A-57 went to meet Javed Chikna at Soda Factory where he told him that they all have to go somewhere. At that time, the appellant was also present there.
(iii) Thereafter, all of them went to a place via Goa Highway using a car.
(iv) On 10.02.1993, Shafi took A-57, the appellant and others to Hotel Persian Darbar by a jeep where they all had lunch.
(v) A-57 attended a meeting at a flat in Bandra on 10.03.1993 where the appellant and many others were also present. In the said meeting, Tiger Memon gave a provoking lecture on taking revenge owing to Muslims being killed in the riots; at the instance of Tiger Memon, groups were formed to execute the plans to cause blasts.
(vi) On the intervening night of 11/12.03.1993, Javed Chikna asked the appellant to load Black Soap in the garage. The appellant and A-57 filled iron pieces in the Commander jeep.
Confessional Statement of Shaikh Mohd. Ethesham (A-58)
212.12 Confessional statement of A-58 under Section 15 of TADA was recorded on 15.05.1993 (9:30 hrs.) and 12.06.1993 by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals the fact that the appellant was present at the time of landing at Shekhadi.
Confessional Statement of Gul Mohd. Noor Mohd. Shaikh (A-77)
212.13 Confessional statement of A-77 under Section 15 of TADA was recorded on 17.04.1993 (14:10 hrs.) and 19.04.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant went to Dubai from Bombay on 17.02.1993 alongwith others.
(ii) From Dubai, the appellant went to Pakistan via PIA flight alongwith others.
(iii) All of the above participated in the training of arms and ammunitions at Pakistan.
(iv) After completion of the training, they returned to Dubai and were administered oath of secrecy and committing Jehad by Tiger Memon.
Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
212.14 Confessional statement of A-94 under Section 15 of TADA was recorded on 14.05.1993 (18:30 hrs.) and 16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) He met the appellant and other co-accused persons in Dubai.
(ii) All of them went to Islamabad from Dubai.
(iii) All of them participated in the training of arms and ammunition at Pakistan.
(iv) After completion of the training and returning to Dubai, they all were administered oath of secrecy by Tiger Memon.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
212.15 Confessional statement of A-98 under Section 15 of TADA was recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals as under:
(i) The appellant participated in the weapons training at Pakistan alongwith A-98 and others.
(ii) The appellant along with others was administered oath in order to combat Jehad.
(iii) The appellant returned from Dubai to Bombay on 03.03.1993 alongwith Gullu and A-98.
Confessional Statement of Mohd. Parvez Zulfikar Qureshi (A-100)
212.16 Confessional statement of A-100 under Section 15 of TADA was recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals as under:
(i) The appellant was a friend of Javed Chikna and he accompanied Javed Chikna, A-100 and others while going to seashore in a jeep.
(ii) The appellant participated in the weapons training at Pakistan alongwith A-100 and others.
(iii) After completion of the training, they returned to Dubai and were administered oath of secrecy and of committing Jehad by Tiger Memon.
213. A perusal of the confessional statements of all the above accused, viz., A-12, A-13, A-15, A-16, A-29, A-32, A-36, A-39, A-46, A-49, A-57, A-58, A-77, A-94, A-98 and A-100 clearly establish the fact that it corroborate with the confessional statement of the appellant (A-64). After consideration of all the abovesaid confessional statements of the co-accused, the involvement of the appellant in the conspiracy is established in as much as:
(i) He was closely associated with Javed Chikna (AA) who was one of the main conspirator in the blasts;
(ii) He actively participated in the landing of arms and explosives at Shekhadi smuggled for the purpose of committing terrorist acts;
(iii) He went to Pakistan and underwent training in arms and ammunitions and explosives;
(iv) After completion of the aforesaid training, he took oath of maintaining secrecy and committing Jehad alongwith other co- accused in Dubai at the instance of Tiger Memon;
(v) He participated in the conspiratorial meetings held at the residence of Babloo and Mobina where plans for executing the blasts were discussed;
(vi) At the behest of Tiger Memon, he formed a group with A-100; they were assigned the task of throwing hand grenades on aircrafts at Sahar airport and conducting survey of the same;
(vii) He conducted survey of Sahar Airport alongwith PW-2 and A-100;
(viii) He actively participated in the filling operation carried out at Al-Hussaini Building compound on the intervening night of 11/12.03.1993.
(ix) On being asked by Tiger Memon to be ready, he replied that he was ready to perform his job.
(x) He admitted his guilt by telling A-12 that he will not participate in any such activities in future; and
(xi) After the blasts, he fled from Bombay fearing the arrest.
214. Mr. Manish, learned counsel for the appellant, contended that the confession was subsequently retracted on 15.02.1995. It is also contended that the confessional statements of the co-accused above as relied upon by the prosecution against him were subsequently retracted, and therefore, it is not safe to base the conviction on any of the aforesaid confessions. It has been further contended on behalf of the appellant that he was, in fact, arrested on 29.12.1994 though his arrest has been shown on 03.01.1995 and on 04.01.1995, he was produced before the Magistrate and that he was tortured, coerced and induced to make a confession. The prosecution pointed out that upon perusal of the order dated 04.01.1995, it is clear that no complaint of any ill- treatment at the hands of police was made by the appellant or his counsel and further even during the remand till 25.01.1995 he was permitted to meet his relatives and was allowed to consult his lawyer. The prosecution further pointed out that the confession of the appellant was recorded on 22.01.1995 and 24.01.1995 and on 04.02.1995, 20.02.1995 and 13.03.1995 he was produced before the Designated Court and on which dates also no complaint of any torture, coercion or ill-treatment at the hands of police was made by the appellant. In fact, after recording of the confession, on 25.01.1995, he was produced before the Magistrate alongwith his confessional statement. In view of the same, there is no substance in the contention raised by the counsel for the appellant. The legality and acceptability of the confessions of the co-accused has already been considered by us in the earlier part of our discussion.
Deposition of Prosecution Witnesses:
215. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Mohd. Usman Jan Khan (PW-2)
215.1 The relevant material in his evidence is as follows:-
(i) PW-2 knows the appellant. He identified the appellant in the court.
(ii) He met the appellant and other co-accused on 02.02.1993 at Hindustan Soda Factory and they all left for Panvel and, thereafter, to Alibaug in a blue coloured Commander jeep and stayed in the same room alongwith the appellant at Hotel Big Splash, Alibaug.
(iii) On the same day, at Hotel Big Splash, Tiger Memon convened a meeting in which he addressed that Muslims have suffered a lot in the communal riots in Bombay and Surat and they all have to help him in taking revenge against Hindus for this. He also told them that arms and ammunitions were about to arrive from Pakistan on that day.
(iv) The appellant was present in the aforesaid meeting. Thereafter, all of them left for Shekhadi Coast in two Commander jeeps.
(v) The appellant was present at Waghani Tower where arms and ammunitions were transported and eventually opened, unloaded and then stored in the Tower.
(vi) The appellant also participated in the second landing at Shekhadi.
(vii) The appellant underwent training at Pakistan.
(viii) On completion of the aforesaid training and after returning to Dubai, PW-2 alongwith the appellant and others took oath of maintaining secrecy by swearing on the Quran.
(ix) The appellant attended the meeting at Shakils house on 07.03.1993 where groups for surveying targets were formed. PW-2 and the appellant were in the same group.
(x) The appellant and PW-2 conducted survey of the Sahar Airport as a prospective target.
(xi) The appellant attended meeting at Babloos residence on 08.03.1993.
(xii) The appellant attended meeting at Shakils residence on 10.03.1993.
215.2 The above deposition of PW-2 duly corroborates with the confession of the appellant as well as the confessions of the co-accused in as much as the appellant was present at Hindustan Soda Factory alongwith other co-accused, participated in both the landings of arms and explosives at Shekhadi, was well aware of the fact that the aforesaid arms and ammunitions were smuggled and landed for committing terrorist acts in order to avenge the demolition of Babri Masjid and atrocities committed on Muslims in the communal riots, participated in the weapons training at Pakistan, took oath of maintaining secrecy and committing Jehad alongwith other co-accused in Dubai at the instance of Tiger Memon, participated in the conspiratorial meetings and lastly he conducted survey of the Sahar airport as a prospective target.
Deposition of Anthony S. Mathew (PW-221)
215.3 At the relevant time, PW 221 was working as an Immigration Officer and proved the departure of the appellant to Dubai on 17.02.1993 from Bombay. The relevant entries on the Embarkation Card (X-340) dated 17.02.1993 concerning the departure which was duly stamped by him have been marked as Exh Nos. 979 and 979-A.
Deposition of Ramchandra Barkade (PW-231)
215.4 PW-231 is an Immigration Officer and has proved the arrival of the appellant to Bombay on 03.03.1993 from Dubai. The relevant endorsements on the Disembarkation Card (X-373) dated 03.03.1993 concerning the arrival have been marked as Exh. Nos. 1019 and 1019-A.
Deposition of Abdul Siddiqui (PW-367)
215.5 Further, the deposition of PW-367 also proved that the appellant went to Dubai on 17.02.1993 from Sahar Airport, Bombay. PW-367 was also travelling to Dubai on 17.02.1993 by the same flight. His deposition reveals the following:
(i) He knew the appellant for the last 10 years as he resided in Mahim, where the appellant also resided.
(ii) He travelled to Dubai on 17.02.1993 by an Emirates Airlines flight.
(iii) When PW-367 was standing in the queue for boarding pass, he saw the appellant and Yeda Yakub who were also standing in the same queue.
(iv) He identified the appellant in the court.
(v) In Dubai, he stayed in Hotel Delhi Darbar where he again met the appellant.
215.6 The aforesaid deposition of PW-367 corroborates with the confession of the appellant as well as the evidence of PW-2.
Deposition of Harishchandra Singh (PW-474)
215.7 The confession of the appellant was recorded by PW-474, the then Superintendent of Police, CBI/SPE/STF, New Delhi. His deposition reveals the following:
(i) He had not taken any part in the investigation of the Bombay Blasts case.
(ii) He received a telephonic request from Deputy Superintendent of Police, Rishi Prakash of CBI/STF, Bombay, for recording the confession of the appellant; accordingly, he reached the Bombay office on 22.01.1995.
(iii) Thereafter, a written request was made to him for recording the said confession and after making endorsement upon the request letter, he asked for the appellant to be produced before him.
(iv) He ensured that the appellant was making a voluntary confession and that he was not pressurized, coerced or threatened by anybody to give the confession. He also gave him time till 24.01.1995 for re-consideration of his desire to make a confession.
(v) On 24.01.1995, the appellant was again produced before him. They were the only persons in the Chamber.
(vi) He ascertained whether sufficient time was given to the appellant for re-consideration or not and warned the appellant that any confession made by him would be used against him.
(vii) He recorded the confession of the appellant and also read it over to him.
(viii) The appellant told him that the confession was correctly recorded and the same was also signed by him as well as by PW-474.
216. We are satisfied with the deposition of PW-474 that the confession of the appellant was recorded in accordance with the prescribed rules and after following the due process of law. No discrepancy whatsoever has been established on behalf of the appellant pertaining to the aforesaid deposition.
Sentence:
217. The prosecution pointed out that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 06.10.2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) He has been in custody since 03.01.1995;
(ii) His wife is suffering from TB and low blood pressure since last 8 years and his son had suffered head injury;
(iii) He had been to Shekhadi under the impression that it was landing of silver goods and after realizing that it was not silver, he disassociated himself from the landing;
(iv) He was forced to participate in the second landing since Tiger Memon, Javed Chikna and others had threatened to kill his family members;
(v) In the said conspiratorial meetings, he protested to carry out any operation as it was the month of Ramzan but he was threatened by Tiger and Javed that he would be shot on the spot if he backs out;
(vi) If he gets a chance, he would be able to look after his family and would be able to lead the life as a law abiding citizen; and
(vii) Ultimately, he was not involved in the commission of any terrorist act and for the acts committed by him, he had undergone sufficient sentence since he has been in custody for about 12 years (as on date approx. 18 years), so a lenient view be taken while awarding sentence to him.
218. It is pointed out by the prosecution that all the above factors have been duly considered by the Designated Court and the aforesaid contentions are devoid of any merit having regard to the fact that the appellant had sufficient potential for commission of terrorist acts owing to have acquired training in handling sophisticated arms and ammunitions at Pakistan. Further, it is stated that his contention that he was forced to participate in the second landing since Tiger Memon, Javed Chikna and others had threatened to kill his family members is not tenable as despite being threatened at the time of first landing and after getting knowledge that the said landing was of arms and ammunitions and explosives, he chose to remain silent instead of approaching the police or taking recourse to law. Despite all this, he participated in the second landing at Shekhadi, and moreover, he went to Pakistan at the instance of the same persons who had threatened him. Further, when Tiger Memon asked him to be ready, he told him that he was ready on the night of 11.03.1993.
219. It is clear that the contention on behalf of the appellant that he dissociated himself at the time of the first landing at Shekhadi is not made out in the light of other evidence on record. Further, the appellant participated in the acts mentioned above willingly and with complete knowledge. He knew that the arms and ammunitions, RDX and hand grenades which were smuggled into India at Shekhadi would be used for committing terrorist acts. It is clearly established from his confession that Tiger Memon had told his associates that the smuggled arms were to be used to take revenge for the demolition of Babri Masjid and for causing blasts in Bombay. As submitted, the above fact had come to his knowledge after the landing at Shekhadi and much before his going to Pakistan. Despite that, he went to Pakistan via Dubai and received training in handling of arms and ammunitions and explosives. Even in Dubai, he attended the conspiratorial meeting convened by Tiger Memon in which oath was administered to maintain secrecy regarding the aforesaid training and to take revenge.
220. It is also relevant to note that after realizing that explosions took place at various places in Bombay on 12.03.1993, the appellant absconded and remained away from the clutches of law until he was arrested by the police. He stayed at various places in assumed names in order to conceal his identity to avoid his arrest. Thus, his fleeing away after the explosions took place only goes to show his association and involvement in the conspiracy to cause blasts and, undoubtedly, he was a part of it. It also points out his guilt in the commission of the said acts in furtherance of the conspiracy.
221. Therefore, in view of the entire evidence enumerated above, we hold that the appellant was actively involved in the conspiracy to cause blasts in Bombay and in consequence of the said involvement, he has committed the said offences for which he has been charged and the sentence awarded by the Designated Court to the appellant is justified. Consequently, the appeals fail and are liable to be dismissed.
