Essa @ Anjum Abdul Razak Memon (A-3) Vs. The State of Maharashtra, through STF, CBI Mumbai
EmailAppeal: Criminal Appeal No. 1178 of 2007
WITH
Rubina Suleman Memon (A-8) v. The State of Maharashtra, through STF, CBI Mumbai
Criminal Appeal No. 1179 of 2007
WITH
The State of Maharashtra v. Suleman Abdul Razak & Ors.
Criminal Appeal No. 419 of 2011
WITH
Yusuf Abdul Razak Memon (A-4) v. The State of Maharashtra, through STF, CBI Mumbai
Criminal Appeal No. 1181/2007
WITH
Criminal Appeal Nos. 1127-1128/2007, 1252-1253/ 2007, 413/2011, 1365/2007, 224/2007, 1440/2007, 1028/2012, 1441/2007, 401/2008, 1023/2012, 976-977/2008, 616/2008, 979-980/2008, 633/2008, 651-652/2008, 653 &656/2008, 924/2008 and 933-936/ 2008.
WITH
Rubina Suleman Memon (A-8) v. The State of Maharashtra, through STF, CBI Mumbai
Criminal Appeal No. 1179 of 2007
WITH
The State of Maharashtra v. Suleman Abdul Razak & Ors.
Criminal Appeal No. 419 of 2011
WITH
Yusuf Abdul Razak Memon (A-4) v. The State of Maharashtra, through STF, CBI Mumbai
Criminal Appeal No. 1181/2007
WITH
Criminal Appeal Nos. 1127-1128/2007, 1252-1253/ 2007, 413/2011, 1365/2007, 224/2007, 1440/2007, 1028/2012, 1441/2007, 401/2008, 1023/2012, 976-977/2008, 616/2008, 979-980/2008, 633/2008, 651-652/2008, 653 &656/2008, 924/2008 and 933-936/ 2008.
[From the Judgment and Order dated 27.07.2007 of the Presiding Officer of the Designated Court, Under TADA (P) Act, 1987 for Bombay Blast Cases, Greater Bombay in Bombay Blast Case No.1 of 1993]
Petitioner: Essa @ Anjum Abdul Razak Memon (A-3)
Respondent: The State of Maharashtra, through STF, CBI Mumbai
Apeal: Criminal Appeal No. 1178 of 2007
WITH
Rubina Suleman Memon (A-8) v. The State of Maharashtra, through STF, CBI Mumbai
Criminal Appeal No. 1179 of 2007
WITH
The State of Maharashtra v. Suleman Abdul Razak & Ors.
Criminal Appeal No. 419 of 2011
WITH
Yusuf Abdul Razak Memon (A-4) v. The State of Maharashtra, through STF, CBI Mumbai
Criminal Appeal No. 1181/2007
WITH
Criminal Appeal Nos. 1127-1128/2007, 1252-1253/ 2007, 413/2011, 1365/2007, 224/2007, 1440/2007, 1028/2012, 1441/2007, 401/2008, 1023/2012, 976-977/2008, 616/2008, 979-980/2008, 633/2008, 651-652/2008, 653 &656/2008, 924/2008 and 933-936/ 2008.
WITH
Rubina Suleman Memon (A-8) v. The State of Maharashtra, through STF, CBI Mumbai
Criminal Appeal No. 1179 of 2007
WITH
The State of Maharashtra v. Suleman Abdul Razak & Ors.
Criminal Appeal No. 419 of 2011
WITH
Yusuf Abdul Razak Memon (A-4) v. The State of Maharashtra, through STF, CBI Mumbai
Criminal Appeal No. 1181/2007
WITH
Criminal Appeal Nos. 1127-1128/2007, 1252-1253/ 2007, 413/2011, 1365/2007, 224/2007, 1440/2007, 1028/2012, 1441/2007, 401/2008, 1023/2012, 976-977/2008, 616/2008, 979-980/2008, 633/2008, 651-652/2008, 653 &656/2008, 924/2008 and 933-936/ 2008.
[From the Judgment and Order dated 27.07.2007 of the Presiding Officer of the Designated Court, Under TADA (P) Act, 1987 for Bombay Blast Cases, Greater Bombay in Bombay Blast Case No.1 of 1993]
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Appearances:
Appearances
Mr. Mukul Gupta, Senior Advocate, Mr. Huzefa Ahmadi, Mr. Faisal Farook, Mr. Shubail Farook, Mr. Rauf Rahim, Mr. Yudan and Bansal, Mr. H.K. Puri, Ms. Priya Puri, Mr. Manish Priyadarshi, Ms. Anjali Jha, Ms. Farhana Shah, Mr. Satbir, Mr. Pilania, Mr. Somvir Aiwai , Mr. Faiz Raizwan Merchant, Dr. Sushil Balwada, Mr. Shree Prakash Sinha, Mr. Shekhar Kumar, Mr. Vijay Kumar, Mr. Mushtaq Ahmad, Mr. Shaikh Chand Sahab, Mr. Moinuddin Ansari, Mr. Jaspreet Gogia, Mr. K.N. Rai, Mr. Satyakam, Mr. Anubhav Kumar, Mr. Anchit Sharma, Mr. Satya Vikram, Mr. Ajit Sharma, Mr. Nishit Agrawal, Mr. Prerak Kakkar, Mr. Arvind Kumar Sharma, Mr. P. Parmeswaran, Mr. P.V. Yogeswaran, Mr. Prashant Bhushan, Ms. Asha G. Nair, Mr. Vishwa Pal Singh, Mr. T.N. Rao, Mr. Anando Mukherjee, Mr. Harsh N. Parekh, Mr. B. Krishna Prasad, Advocates with him for the Appearing parties.
Mr. Mukul Gupta, Senior Advocate, Mr. Huzefa Ahmadi, Mr. Faisal Farook, Mr. Shubail Farook, Mr. Rauf Rahim, Mr. Yudan and Bansal, Mr. H.K. Puri, Ms. Priya Puri, Mr. Manish Priyadarshi, Ms. Anjali Jha, Ms. Farhana Shah, Mr. Satbir, Mr. Pilania, Mr. Somvir Aiwai , Mr. Faiz Raizwan Merchant, Dr. Sushil Balwada, Mr. Shree Prakash Sinha, Mr. Shekhar Kumar, Mr. Vijay Kumar, Mr. Mushtaq Ahmad, Mr. Shaikh Chand Sahab, Mr. Moinuddin Ansari, Mr. Jaspreet Gogia, Mr. K.N. Rai, Mr. Satyakam, Mr. Anubhav Kumar, Mr. Anchit Sharma, Mr. Satya Vikram, Mr. Ajit Sharma, Mr. Nishit Agrawal, Mr. Prerak Kakkar, Mr. Arvind Kumar Sharma, Mr. P. Parmeswaran, Mr. P.V. Yogeswaran, Mr. Prashant Bhushan, Ms. Asha G. Nair, Mr. Vishwa Pal Singh, Mr. T.N. Rao, Mr. Anando Mukherjee, Mr. Harsh N. Parekh, Mr. B. Krishna Prasad, Advocates with him for the Appearing parties.
Head Note:
CRIMINAL LAWS
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 Accused A3 (Essa), A4 (Yusuf Abdul Razak), A8 (Rubina) Involvement of these in the acts Evidence Confessional statements of co-accused, namely Abdul Gani (A11), Md Rafiq (A46), Nasir Dhakla, (A64) Statements admissible in evidence Fact and circumstance also stated by various PWs A3 owning a white Maruti car, a blue Maruti, a Maruti 1000 and a Maruti Van – Said vehicles used for organising blasts and actually causing blast at various places – All three departed from India prior to blast Recovery of Maruti Van owned by A8 Corroboration by approver PW2 Van found to have AK-56 rifles, grenades and magazines, origin of which was Pakistan – Several incriminating articles recovered from building where Memons were residing, including RDX, key of scooter, which was recovered with explosives at other places Recoveries duly witnessed and proved by panch witnesses Their arrival in India proved with temporary stay permits and other documents Finance for carrying out blast arranged by a company owned by brother of A3. Held that their conviction under relevant provisions is justified. Appeals dismissed.
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 Accused A3 (Essa), A4 (Yusuf Abdul Razak), A8 (Rubina) Involvement of these in the acts Evidence Confessional statements of co-accused, namely Abdul Gani (A11), Md Rafiq (A46), Nasir Dhakla, (A64) Statements admissible in evidence Fact and circumstance also stated by various PWs A3 owning a white Maruti car, a blue Maruti, a Maruti 1000 and a Maruti Van – Said vehicles used for organising blasts and actually causing blast at various places – All three departed from India prior to blast Recovery of Maruti Van owned by A8 Corroboration by approver PW2 Van found to have AK-56 rifles, grenades and magazines, origin of which was Pakistan – Several incriminating articles recovered from building where Memons were residing, including RDX, key of scooter, which was recovered with explosives at other places Recoveries duly witnessed and proved by panch witnesses Their arrival in India proved with temporary stay permits and other documents Finance for carrying out blast arranged by a company owned by brother of A3. Held that their conviction under relevant provisions is justified. Appeals dismissed.
Held:
The evidence on record establishes that the A-8 was aware that the vehicle owned by her (i.e. MFC 1972) was being used for terrorist acts by Tiger Memon and his associates. It is further established that Flat Nos. 22, 25 and 26 at Al-Hussaini building, where members of the Memons family resided jointly, were the nucleus of the criminal conspiracy as they were the locations where Tiger Memon and Yakub Memon met with several other co-accused persons during the period of the conspiracy. Further, the arms and explosives smuggled into India for the purpose of the conspiracy were also kept at the said building and lastly RDX was filled in the vehicles in and outside the garages allocated to the Memons at Al-Hussaini building which were used/planted as bombs at various places on 12.03.1993 by all the conspirators. (Para 31)
A-3, A-4, and A-8 resided jointly at these flats where Tiger Memon, Yakub Memon (A-1) and their associates hatched the criminal conspiracy to carry out multiple explosions in Bombay. The conduct of the appellants in not reporting any of these activities to the police and the fact that A-3 and A-4 departed from India on 11.03.1993 in itself is an incriminating circumstance to be used against the appellants. (Para 33)
After the blasts that took place in Bombay on 12.03.1993, the Memons were living together in Dubai. They never disclosed the connection of Tiger with the blasts to anyone. Their conduct of living together after fleeing from Bombay and not informing about these blasts to any of the concerned authorities at Indian Embassy establishes that they were also involved in the conspiracy to commit the bomb blasts. (Para 35)
After the blasts, the Memons fled to Pakistan from Dubai and there is evidence that in Pakistan they had obtained Pakistani Passports and National Identity Cards in assumed names. (Para 36)
All the members of Memons family were declared Proclaimed Offenders. Despite that, they did not surrender. They were aware of the blasts that were engineered by Tiger Memon who was living with them right from the time of blasts, i.e., 12th March 1993, in Dubai, Pakistan and other places. Their documents for travel to Bangkok and Singapore from Karachi show that they have travelled on Pakistani Passports using fake names. This conduct also establishes their culpability. It is also in evidence that huge amount of jewellery and cash which was abandoned by the members of Memons family was recovered from the Al-Hussaini building when they hurriedly left Bombay just before the blasts. This is also a proof that all the Memons were fully aware of the blasts and their conduct in fleeing away very clearly establishes that they were aware of the blasts and association of Tiger Memon with the blasts. (Para 37)
Cases Reffered:
1. Employees Provident Fund Commr. v. Official Liquidator [JT 2011 (13) SC 104] (Para 350)
2. Waman v. State of Maharashtra [JT 2011 (7) SC 24] (Para 278)
3. Mahadev Govind Gharge & Ors. v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka [JT 2011(6) SC 321] (Para 376)
4. State of Uttar Pradesh v. Krishna Master [JT 2010) (8) SC 240] (Para 276)
5. Mulla v. State of U.P., [JT 2010 (2) SC 35] (Para 291)
6. Maharashtra State Coop. Bank Ltd. v. Assistant Provident Fund Commr. And Ors. [JT 2009 (13) SC 123] (Para 350)
7. Hari Ram v. State of Rajasthan & Anr. [JT 2009 (8) SC 47] (Para 339)
8. Mohd. Amin v. CBI [JT 2008 (12) SC 49] (Para 194)
9. Krishna Kumar Birla v. Rajendra Singh Lodha & Ors. [JT 2008 (4) SC 82] (Para 341)
10. Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli & Ors. [JT 2007 (6) SC 264] (Para 341)
11. Pratap Singh v. State of Jharkhand and Anr. [JT 2005 (2) SC 271] (Para 359)
12. Textile Labour Assn. and Anr. v. Official Liquidator and Another [JT 2004 (Suppl.1) SC 1] (Para 350)
13. Madan Singh v. State of Bihar [JT 2004 (4) SC 294] (Para 382)
14. T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. [JT 2002 (1) SC 486] (Para 347)
15. Lal Singh v. State of Gujarat & Anr. [JT 2001 (3) SC 410] (Para 194)
16. Arnit Das v. State of Bihar [JT 2000 (6) SC 320] (Para 359)
17. S.N. Dube v. N.B. Bhoir & Ors. [JT 2000 (1) SC 220] (Para 194)
18. Management of M.C.D. v. Prem Chand Gupta & Anr. [JT 1999 (10) SC 12] (Para 379)
19. State of H.P. v. Lekh Raj [JT 1999 (9) SC 43] (Para 277)
20. A.P. State Financial Corpn. v. Official Liquidator, [JT 2000 (8) SC 587] (Para 350)
21. Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. [JT 1999 (8) SC 66] (Para 379)
22. Gaurav Jain v. UOI and Ors. [JT 1997 (6) SC 305] (Para 359)
23. Cantonment Board, Mhow & Anr. v. M.P. State Road Transport Corpn. [JT 1997 (4) SC 561] (Para 341)
24. Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and Another [JT 1996 (4) SC 679] (Para 375)
25. State Bank of Patiala & Ors. v. S.K. Sharma [JT 1996 (3) SC 722] (Para 376)
26. UCO Bank v. Official Liquidator, High Court, Bombay & Anr. [JT 1994 (6) SC 350] (Para 350)
27. Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors. [JT 1994 (4) SC 225] (Para 367)
28. Sanjay Dutt v. State thr. CBI, Bombay [JT 1994 (5) SC 540] (Para 68)
29. Punjab State Electricity Board v. Bassi Cold Storage, Khara and Anr. [JT 1994 (2) SC 628] (Para 348)
30. Ashoka Marketing Ltd. and Anr. v. Punjab National Bank & Ors. [JT 1990 (3) SC 417]
31. RBI v. Peerless General Finance and Investment Company Ltd., and Ors. [JT 1987 (1) SC 246] (Para 349)
32. Sheela Barse & Anr. v. Union of India & Ors. [JT 1986 SC 136] (Para 359)
33. The Life Insurance Corporation of India v. D.J. Bahadur [AIR 1980 SC 2181] (Para 347)
34. The U.P. State Electricity Board v. Hari Shanker Jain & Ors [(1978) 4 SCC 16] (Para 347)
35.. L. Vijay Kumar v. Public Prosecutor, A.P. [AIR 1978 SC 1485] (Para 374)
36.. Shri Sarwan Singh v. Shri Kasturi Lal, [(1977) 1 SCC 750] (Para 347)
37. Kumaon Motor Owners’ Union Ltd. & Anr. v. State of Uttar Pradesh [AIR 1966 SC 785] (Para 347)
38. J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of Uttar Pradesh [AIR 1960 SC 1170] (Para 347)
39. Shri Ram Narain v. The Simla Banking and Industrial Co. Ltd. [AIR 1956 SC 614] (Para 347)
2. Waman v. State of Maharashtra [JT 2011 (7) SC 24] (Para 278)
3. Mahadev Govind Gharge & Ors. v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka [JT 2011(6) SC 321] (Para 376)
4. State of Uttar Pradesh v. Krishna Master [JT 2010) (8) SC 240] (Para 276)
5. Mulla v. State of U.P., [JT 2010 (2) SC 35] (Para 291)
6. Maharashtra State Coop. Bank Ltd. v. Assistant Provident Fund Commr. And Ors. [JT 2009 (13) SC 123] (Para 350)
7. Hari Ram v. State of Rajasthan & Anr. [JT 2009 (8) SC 47] (Para 339)
8. Mohd. Amin v. CBI [JT 2008 (12) SC 49] (Para 194)
9. Krishna Kumar Birla v. Rajendra Singh Lodha & Ors. [JT 2008 (4) SC 82] (Para 341)
10. Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli & Ors. [JT 2007 (6) SC 264] (Para 341)
11. Pratap Singh v. State of Jharkhand and Anr. [JT 2005 (2) SC 271] (Para 359)
12. Textile Labour Assn. and Anr. v. Official Liquidator and Another [JT 2004 (Suppl.1) SC 1] (Para 350)
13. Madan Singh v. State of Bihar [JT 2004 (4) SC 294] (Para 382)
14. T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. [JT 2002 (1) SC 486] (Para 347)
15. Lal Singh v. State of Gujarat & Anr. [JT 2001 (3) SC 410] (Para 194)
16. Arnit Das v. State of Bihar [JT 2000 (6) SC 320] (Para 359)
17. S.N. Dube v. N.B. Bhoir & Ors. [JT 2000 (1) SC 220] (Para 194)
18. Management of M.C.D. v. Prem Chand Gupta & Anr. [JT 1999 (10) SC 12] (Para 379)
19. State of H.P. v. Lekh Raj [JT 1999 (9) SC 43] (Para 277)
20. A.P. State Financial Corpn. v. Official Liquidator, [JT 2000 (8) SC 587] (Para 350)
21. Thyssen Stahlunion GMBH v. Steel Authority of India Ltd. [JT 1999 (8) SC 66] (Para 379)
22. Gaurav Jain v. UOI and Ors. [JT 1997 (6) SC 305] (Para 359)
23. Cantonment Board, Mhow & Anr. v. M.P. State Road Transport Corpn. [JT 1997 (4) SC 561] (Para 341)
24. Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and Another [JT 1996 (4) SC 679] (Para 375)
25. State Bank of Patiala & Ors. v. S.K. Sharma [JT 1996 (3) SC 722] (Para 376)
26. UCO Bank v. Official Liquidator, High Court, Bombay & Anr. [JT 1994 (6) SC 350] (Para 350)
27. Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors. [JT 1994 (4) SC 225] (Para 367)
28. Sanjay Dutt v. State thr. CBI, Bombay [JT 1994 (5) SC 540] (Para 68)
29. Punjab State Electricity Board v. Bassi Cold Storage, Khara and Anr. [JT 1994 (2) SC 628] (Para 348)
30. Ashoka Marketing Ltd. and Anr. v. Punjab National Bank & Ors. [JT 1990 (3) SC 417]
31. RBI v. Peerless General Finance and Investment Company Ltd., and Ors. [JT 1987 (1) SC 246] (Para 349)
32. Sheela Barse & Anr. v. Union of India & Ors. [JT 1986 SC 136] (Para 359)
33. The Life Insurance Corporation of India v. D.J. Bahadur [AIR 1980 SC 2181] (Para 347)
34. The U.P. State Electricity Board v. Hari Shanker Jain & Ors [(1978) 4 SCC 16] (Para 347)
35.. L. Vijay Kumar v. Public Prosecutor, A.P. [AIR 1978 SC 1485] (Para 374)
36.. Shri Sarwan Singh v. Shri Kasturi Lal, [(1977) 1 SCC 750] (Para 347)
37. Kumaon Motor Owners’ Union Ltd. & Anr. v. State of Uttar Pradesh [AIR 1966 SC 785] (Para 347)
38. J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of Uttar Pradesh [AIR 1960 SC 1170] (Para 347)
39. Shri Ram Narain v. The Simla Banking and Industrial Co. Ltd. [AIR 1956 SC 614] (Para 347)
JUDGEMENT:
P. Sathasivam, J.
1. Mr. Jaspal Singh, learned senior counsel appeared for the appellants (A-3, A-4 and A-8) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
2. The present appeals are directed against the final judgment and order of conviction and sentence dated 12.09.2006 and 27.07.2007 respectively whereby the appellants have 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:
3. A common charge of conspiracy was framed against all the co-conspirators including the appellants. 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.
3.1 In addition to the above-said principal charge of conspiracy, the appellants were also charged on the following counts:
At head Secondly; For commission of the offence under Section 3(3) of TADA, on the count of being an associate and related with Tiger Memon (AA) and in pursuance of the conspiracy during the period December, 1992 to April, 1993 in India, Dubai and Pakistan having conspired advocated, abetted, advised and knowingly facilitated the commission of terrorist act and acts preparatory to terrorist acts i.e. serial bomb blasts in Bombay and its suburbs on 12.03.1993 by doing the overt acts as specified in the said charge framed against each of them, namely,:
Essa @ Anjum Abdul Razak Memon (A-3)
For allowing Flat No. 25 on the 6th floor of Al-Hussaini Co-operative Housing Society Limited, Mahim and garage No.C-3 therein to be used by terrorists for planning and preparation of terrorist acts and for storing arms, ammunitions and explosives and thereby facilitating the commission of the terrorist acts.
Yusuf Abdul Razak Memon (A-4)
For allowing Flat No. 26 on the 6th floor of Al-Hussaini Co-operative Housing Society Limited, Mahim and garage No.O-3 therein to be used by terrorists for planning and preparation of terrorist acts and for storing arms, ammunitions and explosives and thereby facilitating the commission of the terrorist acts.
Rubina Suleman Memon (A-8)
(a) By knowingly facilitating the commission of terrorist act by making arrangements for finance through her bank account and by allowing her Maruti Van No. MFC 1972 for using it as a transport vehicle by terrorist for carrying co-conspirators, arms, ammunitions and explosives.
(b) By allowing her Flat No. 25 on the 6th floor of Al-Hussaini Co-operative Housing Society Limited, Mahim and garage No.C-3 therein to be used by terrorists for planning and preparation of terrorist acts and for storing arms, ammunitions and explosives and thereby facilitating the commission of the terrorist acts.
4. The charges mentioned above were proved against the appellants except A-8 who was acquitted of: (i) a part of charge stated in clause (a) at head secondly framed against her in respect of having facilitated commission of terrorist acts by making arrangement for finance through her bank account; and (ii) charge stated in clause (b). The appellants have been convicted and sentenced for the above-said charges as under:
Conviction and Sentence:
i) The appellants have been convicted for the offence of conspiracy punishable under Section 3(3) of TADA and Section 120-B of IPC read with the offences described at head firstly and sentenced to RI for life. A-8 was also directed to pay a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year whereas A-3 and A-4 were directed to pay a fine of Rs. 1,00,000/- each, in default, to further undergo RI for 2 years. (charge firstly)
ii) The appellants have also been convicted under Section 3 (3) of TADA for commission of offences at head secondly and sentenced to RI for 7 years along with a fine of Rs. 50,000/- each, in default, to further undergo RI for 1 year. (charge secondly)
Evidence
5. The evidence against the appellants (A-3, A-4 and A-8) is in the form of:-
(i) confessions made by other co-conspirators (co-accused);
(ii) testimony of prosecution witnesses; and
(iii) documentary evidence.
Confessional Statements of co-accused:
6. The involvement of the appellants has been disclosed in the confessional statements of the 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 appellants (A-3, A-4 and A-8), are summarized hereinbelow:
Confessional Statement of Abdul Gani Ismail Turk (A-11)
6.1 Confessional statement of A-11 under section 15 of TADA has been recorded on 15.04.1993 (22:35 hrs.) and 18.04.1993 (01:15 hrs.) by Shri Prem Krishan Jain, the then DCP, Zone X, Bombay. His confession reveals that on the night of 7th March, 1993, when A-11 went to the house of Tiger Memon at Al-Hussaini building, he (Tiger) was having dinner with Yakub Abdul Razak Memon (A-1), Essa @ Anjum Abdul Razak Memon (A-3) and other members of the Memons family.
Confessional Statement of Mohd. Rafiq @ Rafiq Madi Musa Biyariwala (A-46)
6.2 Confessional statement of A-46 under section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs.) and 22.04.1993 (21:25 hrs.) by Shri Krishan Lal Bishnoi, the then DCP, Zone III, Bombay. The confessional statement of A-46, driver of Tiger Memon, reveals that A-3 used to drive one white Maruti 800 car owned by Tiger Memon.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
6.3 Confessional statement of A-64 under section 15 of TADA has been recorded on 22.01.1995 (21:15 hrs.) and 24.01.1995 (09:15 hrs.) by Shri H C Singh, Suptd. of Police, CBI/SPE/STF, New Delhi. His confession reveals that Tiger Memon and his family members used to reside together at Al- Hussaini building. A-64, in his confession, also stated that Tiger Memon fled away from India with his family before the blasts on 12.03.1993 and that shortly after the blasts, police came to Al-Hussaini building in search of Tiger and his family members.
Deposition of Prosecution Witnesses:
7. Apart from the aforesaid evidence, the involvement and the role of the appellants in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as follows:
Al-Hussaini Building:- Place of residence for Memons family:
Deposition of Dinkar D. Jadhav (PW-312)
7.1 At the relevant time, PW-312 was working as a Ward Officer in Bombay Municipal Corporation The relevant material in his evidence is as follows:-
(i) In the Court, PW-312 identified the Report prepared by him (Exhibit 1190) establishing the ownership of A-8 over Flat No. 25 in Al- Hussaini building at Mahim.
(ii) PW-312 also described about the said Report (Exhibit 1190) which was prepared by him after scrutinizing the property records establishing A- 8 as the owner of the above-mentioned flat at Al-Hussaini building.
Deposition of Wahid Karim Shaikh (PW-87)
7.2 The following facts emerge from the deposition of PW-87 dated 04.08.1996:
(i) PW-87, who repairs cycles for a living, was formerly a driver of Razak Memon.
(ii) Memons including A-3, A-4 and daughter-in-law of Razak Memon used to reside at Al-Hussaini building. PW-87 stated as under:
3. Razak Memon was residing at the said place along with his family members. The said members of his family were his wife, his daughter-in-law and his sons, namely:- Anjumbhai (A-3), Yusufbhai (A-4), Yakubbhai (A-1) and Ayubbhai (AA).
(iii) Essa @ Anjum Abdul Razak Memon (A-3) was having a small white colored Maruti car, a small blue Maruti Car, a red coloured Maruti 1000 and a red coloured Maruti van.
8. Deposition of PW-87 also corroborates with the confession of A-46 which establishes that the Memons owned a small white Maruti car (i.e. a Maruti 800 car) in addition to other cars. A-46 in his confession further stated that A-3 used to drive this white Maruti car.
9. The evidence on record establishes that the vehicles owned by the Memons were used for the purpose of organising the blasts and later converted into vehicle bombs. These cars were: a red coloured Maruti Van, a blue coloured Maruti Car, a white coloured Maruti car and a red coloured Maruti 1000. The blue coloured Maruti Car bearing Regn. No. 0672 was used for the blast at Stock Exchange Building. Also, at Sahar Airport, hand grenades were thrown using a motorcycle which belonged to Ayub @ Abdul Razak Memon (AA). Another van bearing Registration No. MFC-1972 which was registered in the name of Rubina Suleman Abdul Razak Memon (A-8) has been used by A-9, A-12, A-44 and Anwar Theba (AA) on the eve of the blasts for taking 3 suitcases filled with bombs in order to cause blasts at three Hotels.
10. Although PW-87 was declared a hostile witness, his evidence can be relied upon in the light of the pronouncement of this Court in Sat Paul v. Delhi Administration [AIR 1976 SC 294] wherein it was held that:
52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.
(emphasis supplied)
Departure from India prior to the blasts:
11. It is also brought in evidence that each of the appellants left India prior to the blasts and arrived back only on 25.08.1994 at New Delhi Airport. The fact stated above is disclosed by the deposition of various prosecution witnesses which are as follows:
Deposition of Ganayansingh Tallaram Padwal (PW-245)
11.1 PW-245, at the relevant time, was working as an Immigration Officer at Sahar Airport, Bombay. He deposed that Essa @ Anjum Abdul Razak Memon (A- 3) departed from India on 11.03.1993 and he also recognized the embarkation card (X-405) issued to A-3.
Deposition of V. P. Kelkar (PW-229)
11.2 PW-229 was also working as an Immigration Officer at that time. He deposed that A-4 departed from Bombay on 11.03.1993 and recognized the embarkation card (X-368) in the court issued for travel.
Recoveries:
12. The investigation into the role of the appellants can be said to have begun with the recovery of Maruti Van bearing number MFC 1972 near the gate of Siemens factory at Worli. This car was abandoned by the conspirators, viz., PW-2, A-57, Javed Chikna, Bashir Khan and Babloo when they were on their way to the Bombay Municipal Corporation Office on 12.03.1993. The statement of PW 2 reveals that while they were on their way, they spotted a live detonator in the Van which exploded as soon as it was thrown outside the Van. This explosion scared the conspirators and they abandoned the Van near the gate of Siemens factory at Worli. This Van was then spotted by the Security Guards of the factory and was reported to the police and several items were recovered from the Van including its registration documents. This ultimately led the police to the flat of Rubina Suleman Memon (A-8), owner of the said Van, at Al-Hussaini building.
Recovery of abandoned Maruti Van No. MFC 1972 near Siemens Factory
13. It is relevant to note that the Maruti Van bearing number MFC 1972 recovered from outside the gate of Siemens factory at Worli on 12.03.1993 belonged to Rubina Suleman Memon (A-8). The prosecution examined PW-415, who was the Security Guard, posted at the said factory who noticed the abandoned vehicle. PW-371, a Police Officer, reached the spot and prepared a spot panchnama (Exhibit No. 190) in the presence of a panch witness Narayan D. More (PW-46) mentioning the recovery of rifles, hand grenades, and cartridges from the said vehicle when it was opened up using a hook by Mr. Nandkumar Anant Chaugule (PW-444), officer of the Bomb Detection and Disposal Squad (BDDS). The following prosecution witnesses also deposed with regard to the same in the following manner:-
Deposition of Mohd. Usman Jan Khan (PW-2)
13.1 The deposition of PW-2 reveals as under:-
(i) PW-2 along with Javed Chikna, Shaikh Ali Shaikh Umar (A-57), Bashir Khan (AA) and Babloo, left in a Maruti car bearing number 1972 on 12.03.1993 from the house of Tiger Memon towards BMC building and the said car was laden with explosives.
(ii) PW-2 and other co-accused persons parked the said Maruti Van at the gate of Siemens factory when a live detonator exploded in the Van as soon as it was thrown outside the car.
(iii) PW-2 further deposed that they left the hand grenades, rifles, detonators and magazines in the Maruti car parked outside the said factory.
Deposition of Divakar Ramakwal Mishra (PW-415)
13.2 On 12.03.1993, PW-415 was the Security Watchman on duty at Siemens Factory, Worli on 12.03.1993. In his deposition dated 21.08.1998, he reveals as under:
(i) PW-415 saw the Maruti van parked outside the rear gate of the Company at around 6:30 pm.
(ii) His companion Sarabjit Singh lodged the complaint with the police regarding the abandoned vehicle. The Police arrived on the spot within an hour.
Deposition of Narayan D. More (PW-46)
13.3 PW-46 acted as a panch witness to the recoveries made from the said Maruti Van on 12.03.1993. In his deposition dated 19.02.1996, he reveals as under:
(i) PW-46 noticed 2 plastic bags in the Van. One bag was opened and was found to contain 7 rifles. The second bag was containing 4 bombs and 14 magazines; and
(ii) PW-46 also noticed two white bags on the front row of the Van and a bag of dates, water bottles etc.
13.4 Exhibit 190 is the spot panchnama prepared by the police documenting recoveries from the said Maruti Van. It shows PW-46 as a panch witness and confirms recovery of rifles, hand grenades, magazines, dates and water bottles from the Maruti Van bearing number MFC 1972 near Siemens factory gate.
Deposition of Dinesh Parshuram Kadam (PW-371)
13.5 PW-371 was working as a Detection Officer at Worli Police Station on 12.03.1993. He deposed as under:-
(i) After receiving information, he went to Siemens factory on 12.03.1993 and saw a Maruti Van bearing No. MFC 1972;
(ii) He further deposed that 2 black bags were found from the Van containing rifles, hand grenades and magazines. PW-371, thereafter, lodged an FIR at Worli Police Station; and
(iii) He further deposed that the registration details of the Van revealed that the Van was in the name of Rubina Suleman Memon (A-8) residing at Al-Hussaini building.
Deposition of Nandkumar Anant Chaugule (PW-444)
13.6 PW-444 was the officer of BDDS. He deposed as under:-
(i) PW-444 received information of a suspicious Maruti van parked behind Siemens Factory at Worli.
(ii) He opened the door of the Maruti Van using a rope and a hook and found 2 black bags; and
(iii) The said bags were found to be containing AK-56 rifles, 4 hand grenades and magazines.
Deposition of Sadanand Narayan Naik (PW-370)
13.7 At the relevant time, PW-370 was an employee of the Regional Transport Office, Bombay. In his deposition dated 06.07.1998, he reveals as under:
(i) In the court, he recognized the entries made in the Registration Register maintained by the RTO in respect of vehicle number MFC 1972.
(ii) PW-370 had also prepared a true copy of the entries in the Register on 26.07.1993 on the request of police officials.
13.8. Exhibit Nos. 1292 and 1292-A are the true copies of the Register maintained by RTO in respect of Maruti vehicle bearing number MFC 1972. The said Exhibits clearly show that Rubina Suleman Memon (A-8), resident of Al-Hussaini building, is the owner of the said Maruti car.
Deposition of Waman Ramchandra Kulkarni (PW-662)
13.9 PW-662, in his deposition dated 03.05.2000, reveals that he wrote a letter to the RTO dated 23.07.1993 (Exhibit 2433) seeking information in respect of the ownership of several vehicles including vehicle number MFC 1972, which was abandoned by accused persons and was seized by the police on 12.03.1993 outside the Siemens Factory.
14. The recoveries made from the Maruti Van bearing No. MFC 1972 were forwarded to the Chemical Analyser vide forwarding letter Exhibit 2439 who confirmed in his report (Exhibit 2439-A) the presence of hand grenades amongst the recovered items. Similarly, his report dated 21.04.1993, Exhibit No. 2440-A also confirmed one Chinese Type 56-1 assault rifle and cartridges which were recovered from the said Maruti Van on 12.03.1993. Further, FSL Report (Exhibit No. 2440-C) clearly reveals that the name WAH NOBLE (PVT.) LTD. WAH CANTT. was inscribed on the cardboard boxes recovered at Al-Hussaini. Francis Xavier Xaxa (PW-435), an Indian national, working with the Ministry of External Affairs and attached with the Indian Consulate at Islamabad until 1995, has stated that a company by name Wah Noble (Pvt.) Limited is listed as a manufacturer of explosives in the directory compiled by the Rawalpindi Chamber of Commerce and Industry with its office at Wah Cantt., Pakistan. It is, therefore, clear that the accused persons were carrying hand grenades, cartridges and assault rifles in the Maruti van owned by Rubina Suleman Memon (A-8) on 12.03.1993.
15. It was contended by the appellants/accused that liability cannot be imputed to A-8 for merely being the owner of the vehicle used by the conspirators for committing terrorist acts. It is pointed out by the prosecution that this factor was considered and rejected by the Designated Court in Para 48, Part 30 wherein it was held that:
In the same context, the further defence submission that A-8 was at Dubai since August, 1992 and as such she cannot be held liable for such a user of the van also does not appeal to the mind. A fact cannot be lost sight of that the said movable property was standing in the name of A-8. Even accepting that A- 8 was then at Dubai, still the possession of the said van will be required to be with her. In view of the same, if the said van was used for such nefarious activities then the same would lead to a logical conclusion of such a user could not have been made without her permission of her connivance. Since A-8 having not tried to give any explanation for explaining the said facet clearly reveals that she cannot escape the liability accruing due to van standing in her name being used for such a nefarious activity.
We are in agreement with the said conclusion.
Recoveries from Al-Hussaini building after the blasts
16. The abandoned Maruti car bearing number MFC 1972 which was recovered from outside the gate of Siemens factory at Worli on 12.03.1993 led the police to the flat of Rubina Suleman Memon (A-8) at Al-Hussaini building since the car belonged to her. The Police officials also inspected Flat Nos. 26 and 22 at Al-Hussaini building and recovered several articles including Rs. 4 lacs in cash, jewellery, slippers, carpet pieces with traces of RDX and keys to the abandoned scooter containing explosives found at Naigaon cross road vide panchnama Exhibit No. 337 in the presence of panch witnesses, viz., Uday Narayan Vasaikar (PW-67) and Sambaji Damodar Sawant. The following witnesses deposed with regard to the same:-
Deposition of Uday Narayan Vasaikar (PW-67)
16.1 PW-67 was the panch witness to the recoveries made at Flat No. 26 of Al-Hussaini building on 12.03.1993. In his deposition dated 26.06.1996, he reveals as under:
(i) PW-67 described that Flat No. 27 had a spiral staircase which led to a flat on the 5th floor below.
(ii) He further deposed that Rs. 4,00,000/- in cash and jewellery was recovered from the said apartment.
(iii) The police recovered a green carpet and slippers with black stains as Article Nos. 239-C and 238-B, respectively from Flat No. 22 on the 5th floor. Further, a set of keys (Article 245-B(i)), including a scooter key number 449 was recovered.
(iv) In the Court, PW-67 recognized the spot panchnama (Exhibit No. 337) as accurate.
16.2 The evidence of PW-67, therefore, corroborates with the evidence of Police Officer Pharande and the spot panchnama Exhibit No. 337 in material terms and, specifically, insofar as recording of recoveries made is concerned.
Deposition of Homi Sorabji Irani (PW-553)
16.3 PW-553 was in-charge of the investigation regarding the scooter recovered at Naigaon cross road containing explosives. On 03.07.1993, PW- 553 handed over the keys of the scooter recovered from Al-Hussaini building to PW-546 for verification.
Jayant Ramchandra Sarmokaddam (PW-546)
16.4 PW-546, a police officer, verified on 03.07.1993 that the keys recovered from Flat No. 22 at Al-Hussaini building could be applied to the abandoned scooter seized by the police bearing number MH-04-Z-261 from Naigaon cross road containing explosives and prepared a panchnama being Exhibit No. 363 recording the same. Shaikh Sharfu (PW-69) was the scooter mechanic who applied the keys to the scooter in the presence of panch witness Mohd. Hussain Noor (PW-68).
Recovery of RDX traces from Flat Nos. 22, 25 and 26 at Al-Hussaini Building
Deposition of Manohar Bhalchandra Tandel (PW-56)
17. PW-56 was the panch witness to the recoveries made on 12.03.1993 from the Al-Hussaini building by the police and Chemical Analyser. The evidence of PW-56 reveals that black stains were found on the walls of Flat No. 26 and staircase leading to the 7th floor and at the staircase plywood at Al- Hussaini building which were scraped using wet cotton swabs by Chemical Analyser and collected as evidence in plastic bottles. Articles 169-A and 170-A were the cotton swabs used for taking the scrapping as mentioned above. Article 173-C are the pieces of plywood which were cut off from the ceiling portion outside the left side at Al-Hussaini. The recovery of black RDX traces made at Al-Hussaini building was recorded in panchnama marked as Exhibit No. 243 and corroborates with the evidence of panch witness PW-56.
Recoveries made from the garage and compound of Al-Hussaini building
Deposition of Nitin Narayan Mehar (PW-47)
18. PW-47 was the panch witness to the recoveries made from the garage allotted to Flat No. 26 of the said building on 13.03.1993 and recorded the recovery of a safe marked as Article 113 in the spot panchnama marked as Exhibit No. 192 On 15.03.1993, the safe was opened and watches worth Rs. 2,00,000/-, jewellery and ornaments worth Rs. 41,00,000/- and cash were recovered and the recoveries were recorded in a panchnama marked as Exhibit No. 193.
Deposition of Ganesh Shankar Rao (PW-48)
18.1 PW-48 was a jeweller by profession and was called to Mahim police station on 15.03.1993 to examine the jewellery and the ornaments recovered from the safe (Article 113) found in the garage of Flat No. 26 of Al-Hussaini building on 13.03.1993. Duttanad Ramkrishna Ravankar (PW-49), a goldsmith by profession, was also called to the Mahim police station on 15.03.1993 to examine the gold ornaments and the jewellery found in the steel safe recovered from the garage at Al-Hussaini building. Khalid Salam Arab (PW-40) was the key maker who made the keys to open the steel safe at Mahim police station on 15.03.1993. It is, therefore, clear that the evidence of PWs-48, 49 and 50 corroborates with the evidence recorded in panchnama Exhibit No. 193 insofar as opening of the steel safe and recovery of valuables therein is concerned.
Deposition of Esamoddin Zainoddin Sayed (PW-555)
18.2 PW-555 was a police officer attached with the Mahim police station as API. PW-555 was approached by the guard of Al-Hussaini building on 21.03.1993 and, thereafter, he went to the said building and recorded the recoveries made in panchnama marked as Exhibit No. 214 in the presence of panch witnesses Leonelson DSouza (PW-52) and Yakub Yasin.
Deposition of Leonelson DSouza (PW-52)
18.3 PW-52 was a resident of Al-Hussaini building in March 1993 and agreed to act as a panch witness in respect of the items recovered from the compound of the said building on 21.03.1993. He deposed as under:-
(i) The recovered items included 31 gunny sack pieces, 25 folded cardboard boxes having marking of Packric Packages Ltd. Lahore Containers, 34 oil stained white clothes and some plastic bags.
(ii) He further deposed that the recoveries were recorded in a panchnama marked as Exhibit No. 214.
The evidence of PW-52, therefore, corroborates with the evidence of PW-555 and the panchnama Exhibit No. 214.
19. The prosecution submitted that the recoveries made from the flats and garages of the Memons at Al-Hussaini building establish that the said building was the nucleus of the criminal conspiracy to carry out explosions in Bombay on 12.03.1993 and for several months, since December 1992, meetings were held to prepare plans and hold discussions and lastly to fill RDX in vehicles, which were eventually used as bombs. It is further clear that the Memons including A-3, A-4 and A-8, used to reside together in Flat Nos. 22, 25 and 26 at Al-Hussaini building and were present when several conspiratorial meetings took place in the said flats. It is, therefore, clear that A-3, A-4 and A-8 knew about the conspiracy and facilitated the commission of acts pursuant to the said conspiracy.
Arrest of the Appellants
20. It is submitted that the appellants arrived at the International Airport, New Delhi on 25.08.1994 and were arrested on the same day after preliminary investigation by Iqbal Singh Jaisingh Saroha (PW-674). H.M. Shiromani (PW-266) and S. Swarnasingh (PW-267), Immigration Officers, stamped the disembarkation cards of A-4, A-8 and A-3, respectively, at the time of their arrival at the Airport on 25.08.1994 and issued temporary residential permits marked as Exhibit Nos. 1111-A, 1106-A, and 1107-A to A- 3, A-4, and A-8, respectively, on the said date for their stay in India. The above fact is further clarified by the deposition of the following prosecution witnesses which are as follows:-
Deposition of Iqbalsingh Jaisingh Saroha (PW-674)
20.1 PW-674, in his deposition dated 29.06.2000, reveals as under:
(i) On 25.08.1994, PW-674 got information that members of Tiger Memon and Dawood Ibrahims gang were arriving at Delhi Airport to carry out terrorist activities.; and
(ii) PW-674, thereafter, arrested the family members who arrived at New Delhi Airport on 25.08.1974 at 1100 hrs. He arrested the family members including A-3, A-4 and A-8.
21. Exhibit No. 2500 is the seizure memo prepared by PW-674 at the time of arrest of A-4. The following items were seized from A-4 on 25.08.1994:
(i) Pakistani passport bearing No. AA 763654 dated 12.04.1993 issued in the name of Imran Ahmed Mohd. bearing the photograph of Yusuf Abdul Razak Memon (A-4);
(ii) Pakistani photo identity card bearing No. AZ 021271510-91-224164 in the name of Imran Ahmed Mohd. bearing the photo of A-4; and
(iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Imran Ahmed Mohd.
22. Exhibit No. 2501 is the seizure memo prepared by PW-674 at the time of arrest of Essa Abdul Razak Memon (A-3). The following items were seized from A-3 on 25.08.1994:
(i) Pakistani passport bearing No. AA-763650 dated 12.04.1993 in the name of Akhtar Ahmed Mohd. bearing the photograph of A-3; and
(ii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Akhtar Ahmed Mohd.
23. Exhibit No. 2505 is the seizure memo prepared by PW-674 at the time of arrest of Rubina Suleman Memon (A-8). The following items were seized from A-8 on 25.08.1994:
(i) Pakistani passport bearing No. AC 001087 dated 27.04.1994 in the name of Mrs. Mehtab bearing the photograph of A-8;
(ii) Pakistani photo identity card bearing No. BQ 526267/509-69-270214 in the name of Mrs. Mehtab dated 29.03.1994 bearing the photo of A-8; and
(iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Mrs. Mehtab Aftab.
24. It is, therefore, clear that the recovery of Pakistani identity cards and Pakistani passports from the appellants at the time of their arrest at New Delhi Airport clearly prove that the appellants had relocated to Dubai from Bombay just prior to the blasts on 12.03.1993 and, thereafter, to Pakistan.
25. The prosecution also brought to our notice that the conduct of the appellants after the blasts further establishes that the appellants did not intend to co-operate with the investigation authorities in India and instead travelled on a holiday to Bangkok from Karachi which is evident from the passport entries made in Pakistani passports recovered from Yakub Abdul Razak Memon (A-1) at the time of his arrest at New Delhi Railway Station. After travelling to Bangkok, the appellants arrived at New Delhi Airport via Dubai where they were arrested on 25.08.1994 by PW-674.
26. Pakistani passport No. AA-763650 in respect of Akhtar Ahmed Mohd. (A-3) shows that the said passport holder left Karachi on 16.04.1993 and reached Bangkok on the same day itself. The said passport holder left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. The said passport holder again left Karachi on 17.06.1994 and reached Dubai on the same day. Again, the said passport holder left Dubai on 25.08.1994 and reached India on the same day itself (Exhibit No. 1553). It is clear from the photo on the passport that Akhtar Ahmed Mohd. and Essa @ Anjum Razak Memon (A-3) are one and the same persons.
27. Exhibit No. 1551 is the Pakistani passport No. AA-763654 in respect of Imran Ahmed Mohammed (A-4) which reveals that the said passport holder left Karachi on 17.04.1993 and reached Bangkok on the same day. The said passport holder left Bangkok on 29.04.1993. There is no arrival stamp of any country on the said passport. Again, the said passport holder left Karachi on 20.06.1994 and entered Dubai on the same day. The said passport holder left Dubai on 28.06.1994. There is no arrival stamp of any country on the passport. Again, the said passport holder left Karachi on 25.07.1994 and reached Dubai. The said person left Dubai on 10.08.1994 and re-entered Dubai on 11.08.1994. Again, the said passport holder left Dubai on 25.08.1994 and arrived at New Delhi on the same day. From the Indian Passport of Yusuf Abdul Razak Memon and Pakistani passport in respect of Imran Ahmed Mohd., it is clear that Imran Ahmed Mohd. and Yusuf Abdul Razak Memon are one and the same persons.
28. Exhibit No. 1562 is the Pakistani Passport No. AA-763653 in respect of Mrs. Mehtab Aftab Ahmed (A-8) which shows that Mrs. Mehtab Aftab Ahmed left Karachi on 16.04.1993 and reached Bangkok on the same day. Again, she left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. Pakistani Passport No. AC-001087 in respect of Mrs. Mehtab Aftab Ahmed shows that she left Karachi on 25.07.1994 and entered Dubai on the same day. She left Dubai on 10.08.1994 and entered Dubai on 11.08.1994. Again, she left Dubai on 25.08.1994 and entered India on the same day i.e., 25.08.1994. The said passports show that Rubina Suleman Memon (A-8) and Mrs. Mehtab Aftab Ahmed are one and the same persons.
Other evidence against the Appellants
Deposition of Rashid Fakir Mohd. Khatri (PW-417)
29. PW-417 was an Accounts Assistant at Memon Mehta Associates, a firm of Chartered Accountants in which Yakub Abdul Razak Memon (A-1) was a partner. He deposed that Essa @ Anjum (A-3) is the brother of A-1 and was looking after the business of M/s Tejarath International in Bombay in 1993.
29.1 It is pertinent to note here that A-1 was charged and convicted at head secondly for arranging finance from the funds of M/s Tejarath International for achieving the objective to commit terrorist acts. The evidence on record establishes the involvement of Tejarath International in financing the air tickets of several co-accused persons.
Deposition of Lakharaju Narsinhasai Rao (PW-672)
29.2 PW-672 was a police officer. In his deposition dated 20.6.2000, he deposed that he recovered the details of bank accounts of Rubina Suleman Memon (A-8) from the HSBC Bank, Bandra Branch and that of Essa @ Anjum Abdul Razak Memon (A-3) from the Development Co-operative Bank, Mahim Branch. It is pertinent to note here that M/s Tejarath International was also having an account with the Development Co-op. Bank, Mahim. As already discussed above, evidence of PW-417 clearly establishes that A-3 was involved with the management of M/s Tejarath International, a firm whose funds were involved in financing the conspiratorial activities such as booking of air tickets.
Appeal by the State of Maharashtra through CBI: Criminal Appeal No. 419 of 2011
29.3 The above-said appeal has been filed by the State against acquittal of A-2, A-6, A-7 and A-8 of the charges framed against them. Except A-8, the CBI has not pressed the same against A-2, A-6 and A-7 before this Court, who was acquitted of (i) a part of charge stated in clause (a) at head secondly framed against her and (ii) charge stated in clause (b). After careful examination of all the materials placed, we are of the view that in the absence of any positive evidence, A-8 cannot be convicted for the acts done and mentioned hereinabove (part of charge mentioned at head secondly) and the Designated Court has rightly acquitted her for the same. In the light of the above, the appeal of the State is liable to be dismissed.
Sentence:
30. The Designated Court has awarded rigorous imprisonment for life to each of the appellants for commission of offences under section 3(3) of TADA and under Section 120-B of IPC. The prosecution submitted that the appellants were given full opportunity to defend themselves on the question of quantum of sentence.
Essa @ Anjum Abdul Razak Memon (A-3)
30.1 A-3 filed a statement dated 14.09.2006 on the quantum of sentence, which is Exhibit 2942. A-3, inter alia, stated that:
(i) He was a B. Com. Student in the year 1993 and the flat was purchased by his father (deceased) and he was only staying in it and was not the owner of the same;
(ii) He has been in custody for 12 years; and
(ii) He had serious medical ailments including brain tumor and diabetes.
Yusuf Abdul Razak Memon (A-4)
30.2 A-4 filed a statement dated 15.09.2006 on the quantum of sentence which is Exhibit 2944. A-4, inter alia, stated that:
(i) He is suffering from chronic schizophrenia;
(ii) The Flat at Al-Hussaini was purchased by his father jointly with him since his father was managing his savings; and
(iii) He has no criminal background.
Rubina Suleman Memon (A-8)
30.3 A-8 filed a statement dated 14.09.2006 on the quantum of sentence which is Exhibit 2943. A-8, inter alia, stated that:
(i) The vehicle bearing No. MFC 1972 was purchased by her father-in-law and she was unaware about what had happened to the vehicle after she left for Dubai to be with her husband in August 1992;
(ii) She was not in India during August 1992 August 1994; and
(iii) She has two children.
31. The Designated Court has considered all the abovesaid factors in respect of the appellants. The evidence on record establishes that the A-8 was aware that the vehicle owned by her (i.e. MFC 1972) was being used for terrorist acts by Tiger Memon and his associates. It is further established that Flat Nos. 22, 25 and 26 at Al-Hussaini building, where members of the Memons family resided jointly, were the nucleus of the criminal conspiracy as they were the locations where Tiger Memon and Yakub Memon met with several other co-accused persons during the period of the conspiracy. Further, the arms and explosives smuggled into India for the purpose of the conspiracy were also kept at the said building and lastly RDX was filled in the vehicles in and outside the garages allocated to the Memons at Al-Hussaini building which were used/planted as bombs at various places on 12.03.1993 by all the conspirators.
32. Further, it is pertinent to note here that the evidence on record reveals that the Maruti car used by A-3 was:
(a) driven by several co-accused persons including A-15, A-46 and A-11 to the landing point at Shekhadi from Bombay for landing of weapons in February, 1993;
(b) loaded with RDX on the night of 11.03.1993 at Al-Hussaini Building; and
(c) parked on 12.03.1993 at the Lucky Petrol Pump by A-16 and PW-2 near Shiv Sena Bhawan which exploded killing 4 persons and injuring 38 others.
32.1 The above mentioned evidence establishes that the white car driven by A-3 was used for terrorist activities by Tiger Memon and other co-accused persons.
33. Further, A-3, A-4, and A-8 resided jointly at these flats where Tiger Memon, Yakub Memon (A-1) and their associates hatched the criminal conspiracy to carry out multiple explosions in Bombay. The conduct of the appellants in not reporting any of these activities to the police and the fact that A-3 and A-4 departed from India on 11.03.1993 in itself is an incriminating circumstance to be used against the appellants. None of the appellants responded to the proclamation requiring presence issued by the Designated Court, which was given wide publicity.
34. The evidence on record establishes that the appellants facilitated the commission of terrorist acts as defined in Section 3(1) of TADA by conniving with Tiger Memon and his associates and permitting them to use their flats and vehicles for the purposes of criminal conspiracy. The actions of the appellants squarely fall within Section 3(3) of TADA insofar as the appellants have facilitated and abetted the conduct of terrorist acts by Tiger Memon and his associates.
35. After the blasts that took place in Bombay on 12.03.1993, the Memons were living together in Dubai. They never disclosed the connection of Tiger with the blasts to anyone. Their conduct of living together after fleeing from Bombay and not informing about these blasts to any of the concerned authorities at Indian Embassy establishes that they were also involved in the conspiracy to commit the bomb blasts.
36. After the blasts, the Memons fled to Pakistan from Dubai and there is evidence that in Pakistan they had obtained Pakistani Passports and National Identity Cards in assumed names. The Memons and their family members were leading a comfortable and luxurious life after the blasts. They had acquired properties, started business in the name and style of M/s Home Land Builders, acquired fictitious qualification certificates, driving licences, etc., all of which established that they had chosen a comfortable life in Pakistan and were determined not to return to India in their original identity. The above-said facts clearly establish that the members of Memons family were connected with the Bombay Bomb Blasts.
37. All the members of Memons family were declared Proclaimed Offenders by the Designated Court, Bombay. The rewards were also declared in Indian as well as in foreign currency for their arrest. Despite that, they did not surrender. Instead, the Memons travelled to Bangkok and Singapore from Karachi for holiday in assumed names on Pakistani Passports during April, 1993. They have not taken any steps to surrender before Indian Authorities or Thailand Authorities on their arrival to Bangkok and Singapore after having come to know about the blasts engineered by Tiger Memon nor made any attempt to return to India openly if they had felt that bomb blasts are offences committed in India. This conduct clearly establishes that they were aware of the blasts that were engineered by Tiger Memon who was living with them right from the time of blasts, i.e., 12th March 1993, in Dubai, Pakistan and other places. Their documents for travel to Bangkok and Singapore from Karachi show that they have travelled on Pakistani Passports using fake names. This conduct also establishes their culpability. It is also in evidence that huge amount of jewellery and cash which was abandoned by the members of Memons family was recovered from the Al-Hussaini building when they hurriedly left Bombay just before the blasts. This is also a proof that all the Memons were fully aware of the blasts and their conduct in fleeing away very clearly establishes that they were aware of the blasts and association of Tiger Memon with the blasts.
38. In view of the materials placed on record by the prosecution and the ultimate analysis of the Designated Court, we fully agree with the conviction and sentence imposed upon the appellants, consequently, the appeals filed by the appellants are liable to be dismissed.
1. Mr. Jaspal Singh, learned senior counsel appeared for the appellants (A-3, A-4 and A-8) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
2. The present appeals are directed against the final judgment and order of conviction and sentence dated 12.09.2006 and 27.07.2007 respectively whereby the appellants have 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:
3. A common charge of conspiracy was framed against all the co-conspirators including the appellants. 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.
3.1 In addition to the above-said principal charge of conspiracy, the appellants were also charged on the following counts:
At head Secondly; For commission of the offence under Section 3(3) of TADA, on the count of being an associate and related with Tiger Memon (AA) and in pursuance of the conspiracy during the period December, 1992 to April, 1993 in India, Dubai and Pakistan having conspired advocated, abetted, advised and knowingly facilitated the commission of terrorist act and acts preparatory to terrorist acts i.e. serial bomb blasts in Bombay and its suburbs on 12.03.1993 by doing the overt acts as specified in the said charge framed against each of them, namely,:
Essa @ Anjum Abdul Razak Memon (A-3)
For allowing Flat No. 25 on the 6th floor of Al-Hussaini Co-operative Housing Society Limited, Mahim and garage No.C-3 therein to be used by terrorists for planning and preparation of terrorist acts and for storing arms, ammunitions and explosives and thereby facilitating the commission of the terrorist acts.
Yusuf Abdul Razak Memon (A-4)
For allowing Flat No. 26 on the 6th floor of Al-Hussaini Co-operative Housing Society Limited, Mahim and garage No.O-3 therein to be used by terrorists for planning and preparation of terrorist acts and for storing arms, ammunitions and explosives and thereby facilitating the commission of the terrorist acts.
Rubina Suleman Memon (A-8)
(a) By knowingly facilitating the commission of terrorist act by making arrangements for finance through her bank account and by allowing her Maruti Van No. MFC 1972 for using it as a transport vehicle by terrorist for carrying co-conspirators, arms, ammunitions and explosives.
(b) By allowing her Flat No. 25 on the 6th floor of Al-Hussaini Co-operative Housing Society Limited, Mahim and garage No.C-3 therein to be used by terrorists for planning and preparation of terrorist acts and for storing arms, ammunitions and explosives and thereby facilitating the commission of the terrorist acts.
4. The charges mentioned above were proved against the appellants except A-8 who was acquitted of: (i) a part of charge stated in clause (a) at head secondly framed against her in respect of having facilitated commission of terrorist acts by making arrangement for finance through her bank account; and (ii) charge stated in clause (b). The appellants have been convicted and sentenced for the above-said charges as under:
Conviction and Sentence:
i) The appellants have been convicted for the offence of conspiracy punishable under Section 3(3) of TADA and Section 120-B of IPC read with the offences described at head firstly and sentenced to RI for life. A-8 was also directed to pay a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year whereas A-3 and A-4 were directed to pay a fine of Rs. 1,00,000/- each, in default, to further undergo RI for 2 years. (charge firstly)
ii) The appellants have also been convicted under Section 3 (3) of TADA for commission of offences at head secondly and sentenced to RI for 7 years along with a fine of Rs. 50,000/- each, in default, to further undergo RI for 1 year. (charge secondly)
Evidence
5. The evidence against the appellants (A-3, A-4 and A-8) is in the form of:-
(i) confessions made by other co-conspirators (co-accused);
(ii) testimony of prosecution witnesses; and
(iii) documentary evidence.
Confessional Statements of co-accused:
6. The involvement of the appellants has been disclosed in the confessional statements of the 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 appellants (A-3, A-4 and A-8), are summarized hereinbelow:
Confessional Statement of Abdul Gani Ismail Turk (A-11)
6.1 Confessional statement of A-11 under section 15 of TADA has been recorded on 15.04.1993 (22:35 hrs.) and 18.04.1993 (01:15 hrs.) by Shri Prem Krishan Jain, the then DCP, Zone X, Bombay. His confession reveals that on the night of 7th March, 1993, when A-11 went to the house of Tiger Memon at Al-Hussaini building, he (Tiger) was having dinner with Yakub Abdul Razak Memon (A-1), Essa @ Anjum Abdul Razak Memon (A-3) and other members of the Memons family.
Confessional Statement of Mohd. Rafiq @ Rafiq Madi Musa Biyariwala (A-46)
6.2 Confessional statement of A-46 under section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs.) and 22.04.1993 (21:25 hrs.) by Shri Krishan Lal Bishnoi, the then DCP, Zone III, Bombay. The confessional statement of A-46, driver of Tiger Memon, reveals that A-3 used to drive one white Maruti 800 car owned by Tiger Memon.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
6.3 Confessional statement of A-64 under section 15 of TADA has been recorded on 22.01.1995 (21:15 hrs.) and 24.01.1995 (09:15 hrs.) by Shri H C Singh, Suptd. of Police, CBI/SPE/STF, New Delhi. His confession reveals that Tiger Memon and his family members used to reside together at Al- Hussaini building. A-64, in his confession, also stated that Tiger Memon fled away from India with his family before the blasts on 12.03.1993 and that shortly after the blasts, police came to Al-Hussaini building in search of Tiger and his family members.
Deposition of Prosecution Witnesses:
7. Apart from the aforesaid evidence, the involvement and the role of the appellants in the conspiracy, as stated above, is disclosed by the deposition of various prosecution witnesses which are as follows:
Al-Hussaini Building:- Place of residence for Memons family:
Deposition of Dinkar D. Jadhav (PW-312)
7.1 At the relevant time, PW-312 was working as a Ward Officer in Bombay Municipal Corporation The relevant material in his evidence is as follows:-
(i) In the Court, PW-312 identified the Report prepared by him (Exhibit 1190) establishing the ownership of A-8 over Flat No. 25 in Al- Hussaini building at Mahim.
(ii) PW-312 also described about the said Report (Exhibit 1190) which was prepared by him after scrutinizing the property records establishing A- 8 as the owner of the above-mentioned flat at Al-Hussaini building.
Deposition of Wahid Karim Shaikh (PW-87)
7.2 The following facts emerge from the deposition of PW-87 dated 04.08.1996:
(i) PW-87, who repairs cycles for a living, was formerly a driver of Razak Memon.
(ii) Memons including A-3, A-4 and daughter-in-law of Razak Memon used to reside at Al-Hussaini building. PW-87 stated as under:
3. Razak Memon was residing at the said place along with his family members. The said members of his family were his wife, his daughter-in-law and his sons, namely:- Anjumbhai (A-3), Yusufbhai (A-4), Yakubbhai (A-1) and Ayubbhai (AA).
(iii) Essa @ Anjum Abdul Razak Memon (A-3) was having a small white colored Maruti car, a small blue Maruti Car, a red coloured Maruti 1000 and a red coloured Maruti van.
8. Deposition of PW-87 also corroborates with the confession of A-46 which establishes that the Memons owned a small white Maruti car (i.e. a Maruti 800 car) in addition to other cars. A-46 in his confession further stated that A-3 used to drive this white Maruti car.
9. The evidence on record establishes that the vehicles owned by the Memons were used for the purpose of organising the blasts and later converted into vehicle bombs. These cars were: a red coloured Maruti Van, a blue coloured Maruti Car, a white coloured Maruti car and a red coloured Maruti 1000. The blue coloured Maruti Car bearing Regn. No. 0672 was used for the blast at Stock Exchange Building. Also, at Sahar Airport, hand grenades were thrown using a motorcycle which belonged to Ayub @ Abdul Razak Memon (AA). Another van bearing Registration No. MFC-1972 which was registered in the name of Rubina Suleman Abdul Razak Memon (A-8) has been used by A-9, A-12, A-44 and Anwar Theba (AA) on the eve of the blasts for taking 3 suitcases filled with bombs in order to cause blasts at three Hotels.
10. Although PW-87 was declared a hostile witness, his evidence can be relied upon in the light of the pronouncement of this Court in Sat Paul v. Delhi Administration [AIR 1976 SC 294] wherein it was held that:
52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross- examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.
(emphasis supplied)
Departure from India prior to the blasts:
11. It is also brought in evidence that each of the appellants left India prior to the blasts and arrived back only on 25.08.1994 at New Delhi Airport. The fact stated above is disclosed by the deposition of various prosecution witnesses which are as follows:
Deposition of Ganayansingh Tallaram Padwal (PW-245)
11.1 PW-245, at the relevant time, was working as an Immigration Officer at Sahar Airport, Bombay. He deposed that Essa @ Anjum Abdul Razak Memon (A- 3) departed from India on 11.03.1993 and he also recognized the embarkation card (X-405) issued to A-3.
Deposition of V. P. Kelkar (PW-229)
11.2 PW-229 was also working as an Immigration Officer at that time. He deposed that A-4 departed from Bombay on 11.03.1993 and recognized the embarkation card (X-368) in the court issued for travel.
Recoveries:
12. The investigation into the role of the appellants can be said to have begun with the recovery of Maruti Van bearing number MFC 1972 near the gate of Siemens factory at Worli. This car was abandoned by the conspirators, viz., PW-2, A-57, Javed Chikna, Bashir Khan and Babloo when they were on their way to the Bombay Municipal Corporation Office on 12.03.1993. The statement of PW 2 reveals that while they were on their way, they spotted a live detonator in the Van which exploded as soon as it was thrown outside the Van. This explosion scared the conspirators and they abandoned the Van near the gate of Siemens factory at Worli. This Van was then spotted by the Security Guards of the factory and was reported to the police and several items were recovered from the Van including its registration documents. This ultimately led the police to the flat of Rubina Suleman Memon (A-8), owner of the said Van, at Al-Hussaini building.
Recovery of abandoned Maruti Van No. MFC 1972 near Siemens Factory
13. It is relevant to note that the Maruti Van bearing number MFC 1972 recovered from outside the gate of Siemens factory at Worli on 12.03.1993 belonged to Rubina Suleman Memon (A-8). The prosecution examined PW-415, who was the Security Guard, posted at the said factory who noticed the abandoned vehicle. PW-371, a Police Officer, reached the spot and prepared a spot panchnama (Exhibit No. 190) in the presence of a panch witness Narayan D. More (PW-46) mentioning the recovery of rifles, hand grenades, and cartridges from the said vehicle when it was opened up using a hook by Mr. Nandkumar Anant Chaugule (PW-444), officer of the Bomb Detection and Disposal Squad (BDDS). The following prosecution witnesses also deposed with regard to the same in the following manner:-
Deposition of Mohd. Usman Jan Khan (PW-2)
13.1 The deposition of PW-2 reveals as under:-
(i) PW-2 along with Javed Chikna, Shaikh Ali Shaikh Umar (A-57), Bashir Khan (AA) and Babloo, left in a Maruti car bearing number 1972 on 12.03.1993 from the house of Tiger Memon towards BMC building and the said car was laden with explosives.
(ii) PW-2 and other co-accused persons parked the said Maruti Van at the gate of Siemens factory when a live detonator exploded in the Van as soon as it was thrown outside the car.
(iii) PW-2 further deposed that they left the hand grenades, rifles, detonators and magazines in the Maruti car parked outside the said factory.
Deposition of Divakar Ramakwal Mishra (PW-415)
13.2 On 12.03.1993, PW-415 was the Security Watchman on duty at Siemens Factory, Worli on 12.03.1993. In his deposition dated 21.08.1998, he reveals as under:
(i) PW-415 saw the Maruti van parked outside the rear gate of the Company at around 6:30 pm.
(ii) His companion Sarabjit Singh lodged the complaint with the police regarding the abandoned vehicle. The Police arrived on the spot within an hour.
Deposition of Narayan D. More (PW-46)
13.3 PW-46 acted as a panch witness to the recoveries made from the said Maruti Van on 12.03.1993. In his deposition dated 19.02.1996, he reveals as under:
(i) PW-46 noticed 2 plastic bags in the Van. One bag was opened and was found to contain 7 rifles. The second bag was containing 4 bombs and 14 magazines; and
(ii) PW-46 also noticed two white bags on the front row of the Van and a bag of dates, water bottles etc.
13.4 Exhibit 190 is the spot panchnama prepared by the police documenting recoveries from the said Maruti Van. It shows PW-46 as a panch witness and confirms recovery of rifles, hand grenades, magazines, dates and water bottles from the Maruti Van bearing number MFC 1972 near Siemens factory gate.
Deposition of Dinesh Parshuram Kadam (PW-371)
13.5 PW-371 was working as a Detection Officer at Worli Police Station on 12.03.1993. He deposed as under:-
(i) After receiving information, he went to Siemens factory on 12.03.1993 and saw a Maruti Van bearing No. MFC 1972;
(ii) He further deposed that 2 black bags were found from the Van containing rifles, hand grenades and magazines. PW-371, thereafter, lodged an FIR at Worli Police Station; and
(iii) He further deposed that the registration details of the Van revealed that the Van was in the name of Rubina Suleman Memon (A-8) residing at Al-Hussaini building.
Deposition of Nandkumar Anant Chaugule (PW-444)
13.6 PW-444 was the officer of BDDS. He deposed as under:-
(i) PW-444 received information of a suspicious Maruti van parked behind Siemens Factory at Worli.
(ii) He opened the door of the Maruti Van using a rope and a hook and found 2 black bags; and
(iii) The said bags were found to be containing AK-56 rifles, 4 hand grenades and magazines.
Deposition of Sadanand Narayan Naik (PW-370)
13.7 At the relevant time, PW-370 was an employee of the Regional Transport Office, Bombay. In his deposition dated 06.07.1998, he reveals as under:
(i) In the court, he recognized the entries made in the Registration Register maintained by the RTO in respect of vehicle number MFC 1972.
(ii) PW-370 had also prepared a true copy of the entries in the Register on 26.07.1993 on the request of police officials.
13.8. Exhibit Nos. 1292 and 1292-A are the true copies of the Register maintained by RTO in respect of Maruti vehicle bearing number MFC 1972. The said Exhibits clearly show that Rubina Suleman Memon (A-8), resident of Al-Hussaini building, is the owner of the said Maruti car.
Deposition of Waman Ramchandra Kulkarni (PW-662)
13.9 PW-662, in his deposition dated 03.05.2000, reveals that he wrote a letter to the RTO dated 23.07.1993 (Exhibit 2433) seeking information in respect of the ownership of several vehicles including vehicle number MFC 1972, which was abandoned by accused persons and was seized by the police on 12.03.1993 outside the Siemens Factory.
14. The recoveries made from the Maruti Van bearing No. MFC 1972 were forwarded to the Chemical Analyser vide forwarding letter Exhibit 2439 who confirmed in his report (Exhibit 2439-A) the presence of hand grenades amongst the recovered items. Similarly, his report dated 21.04.1993, Exhibit No. 2440-A also confirmed one Chinese Type 56-1 assault rifle and cartridges which were recovered from the said Maruti Van on 12.03.1993. Further, FSL Report (Exhibit No. 2440-C) clearly reveals that the name WAH NOBLE (PVT.) LTD. WAH CANTT. was inscribed on the cardboard boxes recovered at Al-Hussaini. Francis Xavier Xaxa (PW-435), an Indian national, working with the Ministry of External Affairs and attached with the Indian Consulate at Islamabad until 1995, has stated that a company by name Wah Noble (Pvt.) Limited is listed as a manufacturer of explosives in the directory compiled by the Rawalpindi Chamber of Commerce and Industry with its office at Wah Cantt., Pakistan. It is, therefore, clear that the accused persons were carrying hand grenades, cartridges and assault rifles in the Maruti van owned by Rubina Suleman Memon (A-8) on 12.03.1993.
15. It was contended by the appellants/accused that liability cannot be imputed to A-8 for merely being the owner of the vehicle used by the conspirators for committing terrorist acts. It is pointed out by the prosecution that this factor was considered and rejected by the Designated Court in Para 48, Part 30 wherein it was held that:
In the same context, the further defence submission that A-8 was at Dubai since August, 1992 and as such she cannot be held liable for such a user of the van also does not appeal to the mind. A fact cannot be lost sight of that the said movable property was standing in the name of A-8. Even accepting that A- 8 was then at Dubai, still the possession of the said van will be required to be with her. In view of the same, if the said van was used for such nefarious activities then the same would lead to a logical conclusion of such a user could not have been made without her permission of her connivance. Since A-8 having not tried to give any explanation for explaining the said facet clearly reveals that she cannot escape the liability accruing due to van standing in her name being used for such a nefarious activity.
We are in agreement with the said conclusion.
Recoveries from Al-Hussaini building after the blasts
16. The abandoned Maruti car bearing number MFC 1972 which was recovered from outside the gate of Siemens factory at Worli on 12.03.1993 led the police to the flat of Rubina Suleman Memon (A-8) at Al-Hussaini building since the car belonged to her. The Police officials also inspected Flat Nos. 26 and 22 at Al-Hussaini building and recovered several articles including Rs. 4 lacs in cash, jewellery, slippers, carpet pieces with traces of RDX and keys to the abandoned scooter containing explosives found at Naigaon cross road vide panchnama Exhibit No. 337 in the presence of panch witnesses, viz., Uday Narayan Vasaikar (PW-67) and Sambaji Damodar Sawant. The following witnesses deposed with regard to the same:-
Deposition of Uday Narayan Vasaikar (PW-67)
16.1 PW-67 was the panch witness to the recoveries made at Flat No. 26 of Al-Hussaini building on 12.03.1993. In his deposition dated 26.06.1996, he reveals as under:
(i) PW-67 described that Flat No. 27 had a spiral staircase which led to a flat on the 5th floor below.
(ii) He further deposed that Rs. 4,00,000/- in cash and jewellery was recovered from the said apartment.
(iii) The police recovered a green carpet and slippers with black stains as Article Nos. 239-C and 238-B, respectively from Flat No. 22 on the 5th floor. Further, a set of keys (Article 245-B(i)), including a scooter key number 449 was recovered.
(iv) In the Court, PW-67 recognized the spot panchnama (Exhibit No. 337) as accurate.
16.2 The evidence of PW-67, therefore, corroborates with the evidence of Police Officer Pharande and the spot panchnama Exhibit No. 337 in material terms and, specifically, insofar as recording of recoveries made is concerned.
Deposition of Homi Sorabji Irani (PW-553)
16.3 PW-553 was in-charge of the investigation regarding the scooter recovered at Naigaon cross road containing explosives. On 03.07.1993, PW- 553 handed over the keys of the scooter recovered from Al-Hussaini building to PW-546 for verification.
Jayant Ramchandra Sarmokaddam (PW-546)
16.4 PW-546, a police officer, verified on 03.07.1993 that the keys recovered from Flat No. 22 at Al-Hussaini building could be applied to the abandoned scooter seized by the police bearing number MH-04-Z-261 from Naigaon cross road containing explosives and prepared a panchnama being Exhibit No. 363 recording the same. Shaikh Sharfu (PW-69) was the scooter mechanic who applied the keys to the scooter in the presence of panch witness Mohd. Hussain Noor (PW-68).
Recovery of RDX traces from Flat Nos. 22, 25 and 26 at Al-Hussaini Building
Deposition of Manohar Bhalchandra Tandel (PW-56)
17. PW-56 was the panch witness to the recoveries made on 12.03.1993 from the Al-Hussaini building by the police and Chemical Analyser. The evidence of PW-56 reveals that black stains were found on the walls of Flat No. 26 and staircase leading to the 7th floor and at the staircase plywood at Al- Hussaini building which were scraped using wet cotton swabs by Chemical Analyser and collected as evidence in plastic bottles. Articles 169-A and 170-A were the cotton swabs used for taking the scrapping as mentioned above. Article 173-C are the pieces of plywood which were cut off from the ceiling portion outside the left side at Al-Hussaini. The recovery of black RDX traces made at Al-Hussaini building was recorded in panchnama marked as Exhibit No. 243 and corroborates with the evidence of panch witness PW-56.
Recoveries made from the garage and compound of Al-Hussaini building
Deposition of Nitin Narayan Mehar (PW-47)
18. PW-47 was the panch witness to the recoveries made from the garage allotted to Flat No. 26 of the said building on 13.03.1993 and recorded the recovery of a safe marked as Article 113 in the spot panchnama marked as Exhibit No. 192 On 15.03.1993, the safe was opened and watches worth Rs. 2,00,000/-, jewellery and ornaments worth Rs. 41,00,000/- and cash were recovered and the recoveries were recorded in a panchnama marked as Exhibit No. 193.
Deposition of Ganesh Shankar Rao (PW-48)
18.1 PW-48 was a jeweller by profession and was called to Mahim police station on 15.03.1993 to examine the jewellery and the ornaments recovered from the safe (Article 113) found in the garage of Flat No. 26 of Al-Hussaini building on 13.03.1993. Duttanad Ramkrishna Ravankar (PW-49), a goldsmith by profession, was also called to the Mahim police station on 15.03.1993 to examine the gold ornaments and the jewellery found in the steel safe recovered from the garage at Al-Hussaini building. Khalid Salam Arab (PW-40) was the key maker who made the keys to open the steel safe at Mahim police station on 15.03.1993. It is, therefore, clear that the evidence of PWs-48, 49 and 50 corroborates with the evidence recorded in panchnama Exhibit No. 193 insofar as opening of the steel safe and recovery of valuables therein is concerned.
Deposition of Esamoddin Zainoddin Sayed (PW-555)
18.2 PW-555 was a police officer attached with the Mahim police station as API. PW-555 was approached by the guard of Al-Hussaini building on 21.03.1993 and, thereafter, he went to the said building and recorded the recoveries made in panchnama marked as Exhibit No. 214 in the presence of panch witnesses Leonelson DSouza (PW-52) and Yakub Yasin.
Deposition of Leonelson DSouza (PW-52)
18.3 PW-52 was a resident of Al-Hussaini building in March 1993 and agreed to act as a panch witness in respect of the items recovered from the compound of the said building on 21.03.1993. He deposed as under:-
(i) The recovered items included 31 gunny sack pieces, 25 folded cardboard boxes having marking of Packric Packages Ltd. Lahore Containers, 34 oil stained white clothes and some plastic bags.
(ii) He further deposed that the recoveries were recorded in a panchnama marked as Exhibit No. 214.
The evidence of PW-52, therefore, corroborates with the evidence of PW-555 and the panchnama Exhibit No. 214.
19. The prosecution submitted that the recoveries made from the flats and garages of the Memons at Al-Hussaini building establish that the said building was the nucleus of the criminal conspiracy to carry out explosions in Bombay on 12.03.1993 and for several months, since December 1992, meetings were held to prepare plans and hold discussions and lastly to fill RDX in vehicles, which were eventually used as bombs. It is further clear that the Memons including A-3, A-4 and A-8, used to reside together in Flat Nos. 22, 25 and 26 at Al-Hussaini building and were present when several conspiratorial meetings took place in the said flats. It is, therefore, clear that A-3, A-4 and A-8 knew about the conspiracy and facilitated the commission of acts pursuant to the said conspiracy.
Arrest of the Appellants
20. It is submitted that the appellants arrived at the International Airport, New Delhi on 25.08.1994 and were arrested on the same day after preliminary investigation by Iqbal Singh Jaisingh Saroha (PW-674). H.M. Shiromani (PW-266) and S. Swarnasingh (PW-267), Immigration Officers, stamped the disembarkation cards of A-4, A-8 and A-3, respectively, at the time of their arrival at the Airport on 25.08.1994 and issued temporary residential permits marked as Exhibit Nos. 1111-A, 1106-A, and 1107-A to A- 3, A-4, and A-8, respectively, on the said date for their stay in India. The above fact is further clarified by the deposition of the following prosecution witnesses which are as follows:-
Deposition of Iqbalsingh Jaisingh Saroha (PW-674)
20.1 PW-674, in his deposition dated 29.06.2000, reveals as under:
(i) On 25.08.1994, PW-674 got information that members of Tiger Memon and Dawood Ibrahims gang were arriving at Delhi Airport to carry out terrorist activities.; and
(ii) PW-674, thereafter, arrested the family members who arrived at New Delhi Airport on 25.08.1974 at 1100 hrs. He arrested the family members including A-3, A-4 and A-8.
21. Exhibit No. 2500 is the seizure memo prepared by PW-674 at the time of arrest of A-4. The following items were seized from A-4 on 25.08.1994:
(i) Pakistani passport bearing No. AA 763654 dated 12.04.1993 issued in the name of Imran Ahmed Mohd. bearing the photograph of Yusuf Abdul Razak Memon (A-4);
(ii) Pakistani photo identity card bearing No. AZ 021271510-91-224164 in the name of Imran Ahmed Mohd. bearing the photo of A-4; and
(iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Imran Ahmed Mohd.
22. Exhibit No. 2501 is the seizure memo prepared by PW-674 at the time of arrest of Essa Abdul Razak Memon (A-3). The following items were seized from A-3 on 25.08.1994:
(i) Pakistani passport bearing No. AA-763650 dated 12.04.1993 in the name of Akhtar Ahmed Mohd. bearing the photograph of A-3; and
(ii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Akhtar Ahmed Mohd.
23. Exhibit No. 2505 is the seizure memo prepared by PW-674 at the time of arrest of Rubina Suleman Memon (A-8). The following items were seized from A-8 on 25.08.1994:
(i) Pakistani passport bearing No. AC 001087 dated 27.04.1994 in the name of Mrs. Mehtab bearing the photograph of A-8;
(ii) Pakistani photo identity card bearing No. BQ 526267/509-69-270214 in the name of Mrs. Mehtab dated 29.03.1994 bearing the photo of A-8; and
(iii) Temporary residential permit issued for Pakistani nationals duly stamped at New Delhi Airport on 25.08.1994 in the name of Mrs. Mehtab Aftab.
24. It is, therefore, clear that the recovery of Pakistani identity cards and Pakistani passports from the appellants at the time of their arrest at New Delhi Airport clearly prove that the appellants had relocated to Dubai from Bombay just prior to the blasts on 12.03.1993 and, thereafter, to Pakistan.
25. The prosecution also brought to our notice that the conduct of the appellants after the blasts further establishes that the appellants did not intend to co-operate with the investigation authorities in India and instead travelled on a holiday to Bangkok from Karachi which is evident from the passport entries made in Pakistani passports recovered from Yakub Abdul Razak Memon (A-1) at the time of his arrest at New Delhi Railway Station. After travelling to Bangkok, the appellants arrived at New Delhi Airport via Dubai where they were arrested on 25.08.1994 by PW-674.
26. Pakistani passport No. AA-763650 in respect of Akhtar Ahmed Mohd. (A-3) shows that the said passport holder left Karachi on 16.04.1993 and reached Bangkok on the same day itself. The said passport holder left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. The said passport holder again left Karachi on 17.06.1994 and reached Dubai on the same day. Again, the said passport holder left Dubai on 25.08.1994 and reached India on the same day itself (Exhibit No. 1553). It is clear from the photo on the passport that Akhtar Ahmed Mohd. and Essa @ Anjum Razak Memon (A-3) are one and the same persons.
27. Exhibit No. 1551 is the Pakistani passport No. AA-763654 in respect of Imran Ahmed Mohammed (A-4) which reveals that the said passport holder left Karachi on 17.04.1993 and reached Bangkok on the same day. The said passport holder left Bangkok on 29.04.1993. There is no arrival stamp of any country on the said passport. Again, the said passport holder left Karachi on 20.06.1994 and entered Dubai on the same day. The said passport holder left Dubai on 28.06.1994. There is no arrival stamp of any country on the passport. Again, the said passport holder left Karachi on 25.07.1994 and reached Dubai. The said person left Dubai on 10.08.1994 and re-entered Dubai on 11.08.1994. Again, the said passport holder left Dubai on 25.08.1994 and arrived at New Delhi on the same day. From the Indian Passport of Yusuf Abdul Razak Memon and Pakistani passport in respect of Imran Ahmed Mohd., it is clear that Imran Ahmed Mohd. and Yusuf Abdul Razak Memon are one and the same persons.
28. Exhibit No. 1562 is the Pakistani Passport No. AA-763653 in respect of Mrs. Mehtab Aftab Ahmed (A-8) which shows that Mrs. Mehtab Aftab Ahmed left Karachi on 16.04.1993 and reached Bangkok on the same day. Again, she left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. Pakistani Passport No. AC-001087 in respect of Mrs. Mehtab Aftab Ahmed shows that she left Karachi on 25.07.1994 and entered Dubai on the same day. She left Dubai on 10.08.1994 and entered Dubai on 11.08.1994. Again, she left Dubai on 25.08.1994 and entered India on the same day i.e., 25.08.1994. The said passports show that Rubina Suleman Memon (A-8) and Mrs. Mehtab Aftab Ahmed are one and the same persons.
Other evidence against the Appellants
Deposition of Rashid Fakir Mohd. Khatri (PW-417)
29. PW-417 was an Accounts Assistant at Memon Mehta Associates, a firm of Chartered Accountants in which Yakub Abdul Razak Memon (A-1) was a partner. He deposed that Essa @ Anjum (A-3) is the brother of A-1 and was looking after the business of M/s Tejarath International in Bombay in 1993.
29.1 It is pertinent to note here that A-1 was charged and convicted at head secondly for arranging finance from the funds of M/s Tejarath International for achieving the objective to commit terrorist acts. The evidence on record establishes the involvement of Tejarath International in financing the air tickets of several co-accused persons.
Deposition of Lakharaju Narsinhasai Rao (PW-672)
29.2 PW-672 was a police officer. In his deposition dated 20.6.2000, he deposed that he recovered the details of bank accounts of Rubina Suleman Memon (A-8) from the HSBC Bank, Bandra Branch and that of Essa @ Anjum Abdul Razak Memon (A-3) from the Development Co-operative Bank, Mahim Branch. It is pertinent to note here that M/s Tejarath International was also having an account with the Development Co-op. Bank, Mahim. As already discussed above, evidence of PW-417 clearly establishes that A-3 was involved with the management of M/s Tejarath International, a firm whose funds were involved in financing the conspiratorial activities such as booking of air tickets.
Appeal by the State of Maharashtra through CBI: Criminal Appeal No. 419 of 2011
29.3 The above-said appeal has been filed by the State against acquittal of A-2, A-6, A-7 and A-8 of the charges framed against them. Except A-8, the CBI has not pressed the same against A-2, A-6 and A-7 before this Court, who was acquitted of (i) a part of charge stated in clause (a) at head secondly framed against her and (ii) charge stated in clause (b). After careful examination of all the materials placed, we are of the view that in the absence of any positive evidence, A-8 cannot be convicted for the acts done and mentioned hereinabove (part of charge mentioned at head secondly) and the Designated Court has rightly acquitted her for the same. In the light of the above, the appeal of the State is liable to be dismissed.
Sentence:
30. The Designated Court has awarded rigorous imprisonment for life to each of the appellants for commission of offences under section 3(3) of TADA and under Section 120-B of IPC. The prosecution submitted that the appellants were given full opportunity to defend themselves on the question of quantum of sentence.
Essa @ Anjum Abdul Razak Memon (A-3)
30.1 A-3 filed a statement dated 14.09.2006 on the quantum of sentence, which is Exhibit 2942. A-3, inter alia, stated that:
(i) He was a B. Com. Student in the year 1993 and the flat was purchased by his father (deceased) and he was only staying in it and was not the owner of the same;
(ii) He has been in custody for 12 years; and
(ii) He had serious medical ailments including brain tumor and diabetes.
Yusuf Abdul Razak Memon (A-4)
30.2 A-4 filed a statement dated 15.09.2006 on the quantum of sentence which is Exhibit 2944. A-4, inter alia, stated that:
(i) He is suffering from chronic schizophrenia;
(ii) The Flat at Al-Hussaini was purchased by his father jointly with him since his father was managing his savings; and
(iii) He has no criminal background.
Rubina Suleman Memon (A-8)
30.3 A-8 filed a statement dated 14.09.2006 on the quantum of sentence which is Exhibit 2943. A-8, inter alia, stated that:
(i) The vehicle bearing No. MFC 1972 was purchased by her father-in-law and she was unaware about what had happened to the vehicle after she left for Dubai to be with her husband in August 1992;
(ii) She was not in India during August 1992 August 1994; and
(iii) She has two children.
31. The Designated Court has considered all the abovesaid factors in respect of the appellants. The evidence on record establishes that the A-8 was aware that the vehicle owned by her (i.e. MFC 1972) was being used for terrorist acts by Tiger Memon and his associates. It is further established that Flat Nos. 22, 25 and 26 at Al-Hussaini building, where members of the Memons family resided jointly, were the nucleus of the criminal conspiracy as they were the locations where Tiger Memon and Yakub Memon met with several other co-accused persons during the period of the conspiracy. Further, the arms and explosives smuggled into India for the purpose of the conspiracy were also kept at the said building and lastly RDX was filled in the vehicles in and outside the garages allocated to the Memons at Al-Hussaini building which were used/planted as bombs at various places on 12.03.1993 by all the conspirators.
32. Further, it is pertinent to note here that the evidence on record reveals that the Maruti car used by A-3 was:
(a) driven by several co-accused persons including A-15, A-46 and A-11 to the landing point at Shekhadi from Bombay for landing of weapons in February, 1993;
(b) loaded with RDX on the night of 11.03.1993 at Al-Hussaini Building; and
(c) parked on 12.03.1993 at the Lucky Petrol Pump by A-16 and PW-2 near Shiv Sena Bhawan which exploded killing 4 persons and injuring 38 others.
32.1 The above mentioned evidence establishes that the white car driven by A-3 was used for terrorist activities by Tiger Memon and other co-accused persons.
33. Further, A-3, A-4, and A-8 resided jointly at these flats where Tiger Memon, Yakub Memon (A-1) and their associates hatched the criminal conspiracy to carry out multiple explosions in Bombay. The conduct of the appellants in not reporting any of these activities to the police and the fact that A-3 and A-4 departed from India on 11.03.1993 in itself is an incriminating circumstance to be used against the appellants. None of the appellants responded to the proclamation requiring presence issued by the Designated Court, which was given wide publicity.
34. The evidence on record establishes that the appellants facilitated the commission of terrorist acts as defined in Section 3(1) of TADA by conniving with Tiger Memon and his associates and permitting them to use their flats and vehicles for the purposes of criminal conspiracy. The actions of the appellants squarely fall within Section 3(3) of TADA insofar as the appellants have facilitated and abetted the conduct of terrorist acts by Tiger Memon and his associates.
35. After the blasts that took place in Bombay on 12.03.1993, the Memons were living together in Dubai. They never disclosed the connection of Tiger with the blasts to anyone. Their conduct of living together after fleeing from Bombay and not informing about these blasts to any of the concerned authorities at Indian Embassy establishes that they were also involved in the conspiracy to commit the bomb blasts.
36. After the blasts, the Memons fled to Pakistan from Dubai and there is evidence that in Pakistan they had obtained Pakistani Passports and National Identity Cards in assumed names. The Memons and their family members were leading a comfortable and luxurious life after the blasts. They had acquired properties, started business in the name and style of M/s Home Land Builders, acquired fictitious qualification certificates, driving licences, etc., all of which established that they had chosen a comfortable life in Pakistan and were determined not to return to India in their original identity. The above-said facts clearly establish that the members of Memons family were connected with the Bombay Bomb Blasts.
37. All the members of Memons family were declared Proclaimed Offenders by the Designated Court, Bombay. The rewards were also declared in Indian as well as in foreign currency for their arrest. Despite that, they did not surrender. Instead, the Memons travelled to Bangkok and Singapore from Karachi for holiday in assumed names on Pakistani Passports during April, 1993. They have not taken any steps to surrender before Indian Authorities or Thailand Authorities on their arrival to Bangkok and Singapore after having come to know about the blasts engineered by Tiger Memon nor made any attempt to return to India openly if they had felt that bomb blasts are offences committed in India. This conduct clearly establishes that they were aware of the blasts that were engineered by Tiger Memon who was living with them right from the time of blasts, i.e., 12th March 1993, in Dubai, Pakistan and other places. Their documents for travel to Bangkok and Singapore from Karachi show that they have travelled on Pakistani Passports using fake names. This conduct also establishes their culpability. It is also in evidence that huge amount of jewellery and cash which was abandoned by the members of Memons family was recovered from the Al-Hussaini building when they hurriedly left Bombay just before the blasts. This is also a proof that all the Memons were fully aware of the blasts and their conduct in fleeing away very clearly establishes that they were aware of the blasts and association of Tiger Memon with the blasts.
38. In view of the materials placed on record by the prosecution and the ultimate analysis of the Designated Court, we fully agree with the conviction and sentence imposed upon the appellants, consequently, the appeals filed by the appellants are liable to be dismissed.
