Nasim Ashraf Shaikh Ali Barmare (A-49) Vs. The State of Maharashtra, through CBI-STF, Mumbai
EmailAppeal: Criminal Appeal Nos. 979-980 of 2008
Petitioner: Nasim Ashraf Shaikh Ali Barmare (A-49)
Respondent: The State of Maharashtra, through CBI-STF, Mumbai
Apeal: Criminal Appeal Nos. 979-980 of 2008
Judges:
Date of Judgment: Mar 21, 2013
Head Note:
TADA 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 under Bombay blast case Role and involvement of Nasim Ashraf Shaikh (A49) Evidence against him Appreciation Charge of conspiracy, murder etc. Evidence comprising of his own confession and those made by co-accused, corroborated by PWs – Confession recorded after following due procedure and safe-guards Went to Dubai from where, he with others, went to Pakistan for training – Returned to Bombay via Dubai Participated in filling RDX in vehicles Threw hand-grenades at airport Concealed arms ammunition at home, which he gave afterwards to his friend His confession corroborated by other co-accused viz., namely A13, A16, A23, A29, A32, A36, A39, A52, A64, A94, A98, A100 and also by approver (PW2) Further corroboration by other PWs including those who identified him in TIP Evidence of selection of dummies and recording of proceeding No discrepancies found. Held that accused was proved to be part of conspiracy and his conviction and sentence are upheld.
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 under Bombay blast case Role and involvement of Nasim Ashraf Shaikh (A49) Evidence against him Appreciation Charge of conspiracy, murder etc. Evidence comprising of his own confession and those made by co-accused, corroborated by PWs – Confession recorded after following due procedure and safe-guards Went to Dubai from where, he with others, went to Pakistan for training – Returned to Bombay via Dubai Participated in filling RDX in vehicles Threw hand-grenades at airport Concealed arms ammunition at home, which he gave afterwards to his friend His confession corroborated by other co-accused viz., namely A13, A16, A23, A29, A32, A36, A39, A52, A64, A94, A98, A100 and also by approver (PW2) Further corroboration by other PWs including those who identified him in TIP Evidence of selection of dummies and recording of proceeding No discrepancies found. Held that accused was proved to be part of conspiracy and his conviction and sentence are upheld.
Held:
A perusal of the confession of the appellant establishes that he played an active role in the entire conspiracy, viz., participation in the weapons training at Pakistan; participation in the conspiratorial meeting at Mobinas residence where plans were chalked out for committing terrorist acts; active participation in filling explosive substances in vehicles for the purpose of causing explosions in various parts of the Bombay and lobbing hand-grenades at Sahar Airport. (Para 254)
A perusal of the confessional statements of all the above accused, viz., A-13, A-16, A-23, A-29, A-32, A-36, A-39, A-52, A-64, A-94, A-98 and A-100 clearly establish the fact that it corroborate with each other and also with the confessional statement of the appellant (A-49). After consideration of all the abovesaid confessional statements of the co- accused, the involvement of the appellant in the conspiracy is clearly established inasmuch as
(i) He went to Pakistan and underwent training in arms and ammunitions and explosives;
(ii) After completion of the aforesaid training, he took oath of maintaining secrecy and committing Jehad alongwith other co- accused in Dubai;
(iii) He participated in the conspiratorial meeting held at the residence of Mobina (A-96) where plans for executing the blasts were discussed;
(iv) He actively participated in filling of explosives in vehicles in the night intervening 11/12.03.1993 and
(v) He went alongwith A-23 from Al-Hussaini Building on a red coloured Yamaha motorcycle driven by A-23 to the Sahar Airport Flyover Bridge and pelted hand-grenade at the aircraft, and thereafter, fled away and went to Andheri-Kurla road where they left the motorcycle near a Church. (Para 257)
The deposition of the approver duly corroborates with the confessional statement of the appellant as well as with the confessions made by co-accused persons that the appellant participated in the weapons training at Pakistan and after completion of the said training, took oath of maintaining secrecy and committing Jehad alongwith other co-accused. It further corroborates with the fact that the appellant participated in the conspiratorial meetings and went alongwith A-23 to Sahar Airport in order to throw hand grenades. (Para 258.2)
The depositions of PW-462 and PW-469 clearly prove that the TIP dated 09.04.1993 and 12.05.1993 were duly and properly conducted by them and also prove that the appellant was duly identified by PW-7 and PW-14 as the person who was sitting on the rear side of the motorcycle that had stopped on the Sahar Airport Fly-over bridge on 12.03.1993 and the one who then threw a hand-grenade towards the aircraft. Further, no discrepancy has been brought out in their cross-examinations. (Para 258.14)
A perusal of the depositions establish that on 12.03.1993, they were present at the Sahar Airport Fly-over bridge when the said explosion took place and that they both came on a red motor-cycle and the appellant threw a round object towards the aeroplane which resulted in a big explosion. It is further proved that PW-14 duly identified both the persons on the motor-cycle i.e. the appellant and A-23 in court. Further, PW-7 and PW-14 duly identified the appellant and A-23 during the Test Identification Parade. (Para 259)
In the light of the above evidence, it is established that the appellant had thrown hand grenade towards the aircraft thereby causing explosion and consequent damage. The appellant was completely aware of his acts and he had full knowledge that the act committed by him at Sahar Airport Flyover Bridge was likely to result in the death of persons present in the aircraft. (Para 261)
It is proved beyond doubt that the appellant was in the conspiracy until the final date of achievement of the object of conspiracy. There is no valid ground for interference in the conviction and sentence. (Para 263)
JUDGEMENT:
JUDGEMENT
248. Ms. Farhana Shah, learned counsel appeared for the appellant (A-49) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent.
249. The aforesaid appeals are directed against the final impugned order and judgment of conviction and sentence dated 25.09.2006 and 17.07.2007 respectively, whereby the appellant (A-49) was found guilty and was sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Blast Case, Greater Bombay in B.B.C. No. 1/1993.
Charges:
250. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-49). The material part of the said charge is as under:
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 handgrenades at Machhimar 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.
250.1 In addition to the above-said principal charge of conspiracy, the appellant (A-49) was also charged on the following counts:
At head Secondly; The appellant committed an offence punishable under Section 3(3) of TADA by doing the following overt acts:-
(a) He participated in weapons training at Pakistan;
(b) He attended conspiratorial meetings at the residence of Babloo and Mobina where plans for committing terrorist acts were discussed and chalked out;
(c) He participated in the preparation of vehicle bombs at Al-Hussaini building during the night intervening 11th and 12th of March 1993;
At head Thirdly; The appellant, along with Mohd. Iqbal Mohd. Yusuf Shaikh (A-23), went to the Sahar Airport Flyover bridge on a motorcycle (bearing No. MH-01-C-3910) registered in the name of Ayub Abdul Razak Memon (AA) and lobbed hand grenades at the workers working therein and the aircrafts parked at the Airport and thereby committed an offence punishable under section 3(2)(ii) of TADA read with Section 34 of IPC.
At head Fourthly; By throwing the hand grenades, as mentioned above, with an intention and knowledge to kill the workers, the appellant committed an offence punishable under Section 3(3) of TADA.
At head Fifthly; By throwing the hand grenades which could have caused death of persons working therein, the appellant committed an offence punishable under Section 307 read with Section 34 of IPC.
At head Sixthly; By throwing the hand grenades, as mentioned above, with the knowledge that it could cause damage to properties, the appellant committed an offence punishable under Section 435 read with Sections 511 and 34 of IPC.
At head Seventhly; By throwing the hand grenades with the knowledge and intention that it could cause damage to the public property, the appellant committed an offence punishable under Section 4 of Prevention of Damage to Public Property Act, 1984 read with Sections 511 and 34 of IPC.
At head Eighthly; The appellant was an accessory in causing explosion by explosive substances likely to endanger life and property and thereby committed an offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.
251. The charges mentioned above were proved against the appellant (A-49). The appellant was found guilty on all the aforesaid charges except for charge at head fourthly. The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence
(i) The appellant has been convicted for the offence of conspiracy 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 alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge firstly)
(ii) The appellant has been convicted for the offence under Section 3(3) of TADA for commission of offences mentioned at head secondly and sentenced to RI for 14 years alongwith a fine of Rs. 75,000/-, in default, to further undergo RI for 1 (one and a half) years. (charge secondly)
(iii) The appellant has also been convicted for the offence under Section 3(2)(ii) of TADA and sentenced to RI for 14 years along with a fine of Rs. 75,000/-, in default, to further undergo RI for 1 (one and a half) years. (charge thirdly)
(iv) The appellant has also been convicted for the offence under Section 307 read with Section 34 of IPC and sentenced to RI for 7 years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge fifthly)
(v) The appellant has also been convicted for the offence under Section 435 read with Sections 511 and 34 of IPC and sentenced to RI for 3 (three and a half) years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge sixthly)
(vi) The appellant has also been convicted for the offence under Section 4 of the Prevention of Damage to Public Property Act, 1984 read with Sections 511 and 34 of IPC and sentenced to RI for 5 years alongwith a fine of Rs. 5,000/-, in default, to further undergo RI for 1 month. (charge seventhly)
(vii) The appellant has also been convicted for the offence under Sections 3 and 4 of the Explosive Substances Act, 1908 and sentenced to RI for 5 years. (charge eighthly)
252. The evidence against the appellant (A-49) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional Statement of the appellant Nasim Ashraf Shaikh Ali Barmare (A-49)
253. Confessional statement of the appellant (A-49) under Section 15 of TADA has been recorded on 16.05.1993 (09:30 hrs.) and 18.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following facts emerge from the said confessional statement:
(i) The appellant quit his job as a welder after the riots. Atik asked him if he wanted to work in Dubai and introduced him to Jabir (A-93).
(ii) Jabir arranged for his tickets and visa for Dubai and in the morning of 28.01.1993 dropped him at the Airport in a blue Maruti car and handed over the passport and tickets with the instruction that he will get his Visa on arrival at Dubai.
(iii) He travelled to Dubai by Emirates flight and came out of the Airport after taking his Visa and getting clearance. In Dubai, he listened to a tape recorded provoking speech of a Maulana regarding riots in Ayodhya, Surat and Bombay which motivated him to take revenge for the same.
(iv) On 08/09.02.1993, Ayub dropped the appellant, Niyaz and Feroz at Dubai Airport and told them that they were being sent to Pakistan for training of arms and ammunitions and that the said training would be useful at the time of riots and that they will get arms in Bombay.
(v) The appellant and others went to Pakistan by a PIA flight and they came out of the Airport without any clearance.
(vi) He was given a new name as Yusuf in Pakistan. The appellant and others were given training in use of arms and ammunitions.
(vii) Tiger Memon also came to Pakistan during the training. The appellant also got training in preparation of bombs using RDX and exploding the same using aluminium coloured pencil like detonators and in throwing of hand grenades.
(viii) After the training, he alongwith others went back to Dubai on 25.02.1993. In Dubai, they took oath of maintaining secrecy regarding the aforesaid training by putting their hands on holy Quran.
(ix) The appellant then returned back to Bombay alongwith Rafiq, Shahnawaz, Firoz and Abdul.
(x) He attended a meeting on 10.03.1993 in a flat at Bandra, Hill road, where all the co-accused persons who participated in the training were also present.
(xi) On 11.03.1993, PW-2 took him to the Airport flyover and told him that on 12.03.1993, he has to throw handgrenades on the aeroplanes which were parked there. PW-2 carefully explained to him as to from where he has to come and where he has to go.
(xii) PW-2 then took him to Tigers residence at Al-Hussaini where he saw that about 20-25 boys had gathered there who had also taken training in Pakistan,.
(xiii) Tiger Memon then told the appellant and Mohammed Iqbal Mohammed Yusuf Shaikh (A-23) to go to Sahar Airport on 12.03.1993 in the afternoon for throwing handgrenades as instructed by PW-2.
(xiv) The appellant, along with others, went to the garage situated behind the Al-Hussaini building and filled RDX mixed with steel scrap in a Maruti car. He, alongwith others, also filled another Maruti vehicle and a scooter with bomb made of RDX.
(xv) On 12.03.1993, in the afternoon, PW-2 gave him 7 handgrenades, one loaded gun and a small plastic bag containing bullets and directed him to go for the mission.
(xvi) The appellant and A-23 went to the Sahar Airport by a red coloured Yamaha motorcycle. The last number of the motorcycle was 3910. At about 15:15 hours, they parked the motorcycle on the flyover bridge and after observing the situation, the appellant pelted a hand grenade towards an Air India aircraft. However, the hand grenade could not reach the plane and it exploded in mid-air.
(xvii) Thereafter, the appellant and A-23 fled away from there and went to Andheri Kurla road near the Church where they parked the motorcycle and went back to their home.
(xviii) On reaching home, the appellant concealed four hand grenades and a pistol and after one/two days of Eid, he gave the said hand grenades to his friend Asif and the pistol and bullets to his friend Ayub in order to keep the same with them.
254. A perusal of the confession of the appellant establishes that he played an active role in the entire conspiracy, viz., participation in the weapons training at Pakistan; participation in the conspiratorial meeting at Mobinas residence where plans were chalked out for committing terrorist acts; active participation in filling explosive substances in vehicles for the purpose of causing explosions in various parts of the Bombay and lobbing hand-grenades at Sahar Airport.
255. The prosecution highlighted that the appellant (A-49) has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards prescribed under Section 15 of TADA and the rules framed thereunder. The said facts have been duly established by the recording officer PW-193.
Confessional Statements of co-accused
256. Apart from his own confession, the involvement of the appellant (A-49) is further established by the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-49) are summarized hereinbelow:
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
256.1 Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-13 with respect to the appellant is summarised hereinunder:
(i) The appellant was present in the conspiratorial meeting held on 10.03.1993 in a flat on Hill Road, Bandra.
(ii) The appellant was present in the garage when RDX was being loaded in vehicles in the night intervening 11/12.03.1993.
(iii) The appellant was present at Tigers residence at Al-Hussaini building on 12.03.1993 in the afternoon.
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
256.2 Confessional statement of A-16 under Section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The confession of A-16 reveals that the appellant attended weapons training at Pakistan where he was given a fake name Yusuf.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
256.3 Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (10:00 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-23 with respect to the appellant is summarised hereinunder:
i) The appellant participated in filling of RDX in vehicles at Al-Hussaini building.
ii) On 12.03.1993, Javed Chikna and PW-2 distributed handgrenades to A-23 and the appellant at Al-Hussaini Building and, thereafter, Javed Chikna gave the key of a red coloured Yamaha motorcycle to A-23 and told him to take the appellant to the Airport. Javed Chikna also gave a pistol and bullets to the appellant.
iii) They then went to the flyover bridge near the Airport and on reaching there, the appellant asked A-23 to keep the bike engine on start mode and lobbed the hand grenade towards the aircrafts which resulted into a loud explosion. Thereafter, they fled away from there and went to Andheri-Kurla road where they left the motorcycle near the Church and went back to their homes.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
256.4 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant underwent training at Pakistan and he also took oath to commit Jehad.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
256.5 Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay A brief summary of the confession of A-32 with respect to the appellant is summarised hereinunder:
(i) The appellant attended the conspiratorial meeting at Al-Hussaini building on 10.03.1993.
(ii) The appellant was present at Al-Hussaini building on the night of 11.03.1993.
(iii) On 12.03.1993, PW-2 gave handgrenades to him and Javed Chikna asked them to leave for the mission.
Confessional Statement of Abdul Akhtar Khan (A-36)
256.6 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-36 with respect to the appellant is summarised hereinunder:
(i) The appellant was present in Pakistan at the time of training and he left on 25.02.1993.
(ii) The appellant was present at Tigers residence at Al-Hussaini on 11.03.1993. Javed Chikna asked the appellant and A-36 to unload RDX in the garage.
(iii) The appellant was loading RDX into vehicles.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
256.7 Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. A brief summary of the confession of A-39 with respect to the appellant is summarised hereinunder:
(i) The appellant met A-39 in Dubai where he told him that they have to go to Pakistan to take training in arms.
(ii) The appellant was renamed as Yusuf in Pakistan.
(iii) The appellant was present in the meeting at Dubai where all co- trainer boys took oath by swearing on the Quran.
Confessional Statement of Salim Rahim Shaikh (A-52)
256.8 Confessional statement of A-52 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The confession of A-52 reveals that the appellant underwent training at Pakistan. In his confessional statement, the appellant has also been referred to as Yusuf, the name given to him in Pakistan.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
256.9 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by Shri HC Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. A brief summary of the confession of A-64 with respect to the appellant is summarised hereinunder:
(i) The appellant was present in Pakistan.
(ii) He attended the meeting on 10.03.1993 at the house of Mobina.
(iii) He was present at Al-Hussaini building on the night of 11.03.1993.
(iv) He assisted in filling RDX in vehicles.
Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
256.10 Confessional statement of A-94 under Section 15 of TADA has been recorded on 14.05.1993 (18:30 hrs.) and 16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-94 with respect to the appellant is summarised hereinunder:
(i) The appellant received training in Pakistan.
(ii) He was present in the meeting at Dubai where oath was taken by the trainees by swearing on Quran.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
256.11 Confessional statement of A-98 under Section 15 of TADA has been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-98 with respect to the appellant is summarised hereinunder:
(i) The appellant was already present in Dubai when A-98 reached there.
(ii) The appellant, alongwith A-39 and A-98, went to Islamabad by a PIA flight.
(iii) The appellant was renamed as Yusuf in Pakistan.
(iv) He left the training camp in Pakistan on 25.02.1993 and went to Islamabad.
(v) He was present at a house in Bandra where the meeting took place among conspirators on 08/09.03.1993.
Confessional Statement of Parvez Mohd. Parvez Zulfikar Qureshi (A-100)
256.12 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The confession of A-100 reveals that he met the appellant in Pakistan at the time of training and he left the training camp on 25.02.1993.
257. A perusal of the confessional statements of all the above accused, viz., A-13, A-16, A-23, A-29, A-32, A-36, A-39, A-52, A-64, A-94, A-98 and A-100 clearly establish the fact that it corroborate with each other and also with the confessional statement of the appellant (A-49). After consideration of all the abovesaid confessional statements of the co- accused, the involvement of the appellant in the conspiracy is clearly established inasmuch as
(i) He went to Pakistan and underwent training in arms and ammunitions and explosives;
(ii) After completion of the aforesaid training, he took oath of maintaining secrecy and committing Jehad alongwith other co- accused in Dubai;
(iii) He participated in the conspiratorial meeting held at the residence of Mobina (A-96) where plans for executing the blasts were discussed;
(iv) He actively participated in filling of explosives in vehicles in the night intervening 11/12.03.1993 and
(v) He went alongwith A-23 from Al-Hussaini Building on a red coloured Yamaha motorcycle driven by A-23 to the Sahar Airport Flyover Bridge and pelted hand-grenade at the aircraft, and thereafter, fled away and went to Andheri-Kurla road where they left the motorcycle near a Church.
Deposition of Prosecution Witnesses
258. Apart from the aforesaid evidence, the involvement and role of the appellant in the conspiracy, as stated above, is also revealed by the deposition of the following prosecution witnesses:
Deposition of Mohammed Usman Jan Khan (PW-2) (Approver)
258.1 The deposition of PW-2 (Approver) reveals that:
(i) He knows the appellant and identified him in the Court.
(ii) The appellant was introduced to PW-2 using a fake name Yusuf at the training camp in Pakistan.
(iii) On completion of the aforesaid training and after returning to Dubai, PW-2, along with the appellant and others, took oath of maintaining secrecy by swearing on Quran.
(iv) The appellant attended the meetings at Shakils residence on 07.03.1993 and 10.03.1993.
(v) The appellant was present in the garage at Al-Hussaini building on the night of 11.03.1993 and filled RDX in vehicles.
(vi) Javed Chikna told the appellant to remove AK-56 rifles and handgrenades from the gunny bag kept in the said Maruti van to the Tigers flat on the fifth floor.
(vii) On 12.03.1993, Javed Chikna gave 4 hand grenades each to the appellant and A-23 and told them to go to Sahar Airport in order to throw the same.
258.2 The above deposition of the approver duly corroborates with the confessional statement of the appellant as well as with the confessions made by co-accused persons that the appellant participated in the weapons training at Pakistan and after completion of the said training, took oath of maintaining secrecy and committing Jehad alongwith other co-accused. It further corroborates with the fact that the appellant participated in the conspiratorial meetings and went alongwith A-23 to Sahar Airport in order to throw hand grenades.
Deposition of Guruprasad Shrikrishna (PW-7)
258.3 PW-7, an eyewitness to the explosion at Sahar Airport reveals the following:
(i) He was working as a painter in Bombay. On 12.03.1993, he was painting the parapet wall of the Sahar Airport flyover bridge.
(ii) Around 3 to 3.30 p.m., he heard a screeching sound on the fly-over bridge as if somebody had applied sudden brakes. He saw two persons on a red motor-cycle which stopped on the bridge. They went towards the parapet wall and came back to the motor-cycle. The person sitting on the pillion seat again went towards the wall, took out a round object from his pocket and threw it towards the aeroplane which resulted in a big explosion. Then they went away from there on the motor-cycle and PW-7 saw the number of motor cycle as 3910.
(iii) He identified the red motor cycle at MIDC police station.
(iv) He identified the appellant in the Test Identification Parade (TIP) dated 09.04.1993 conducted by PW-462.
(v) He also identified the appellant in the TIP dated 12.05.1993 conducted by PW-469.
Deposition of Subhash Triveni Harijan (PW-14)
258.4 PW-14, who was also an eye-witness to the incident, deposed on 08.11.1995, which reveals the following:
(i) At the relevant time, i.e., in March 1993, he was employed as a painter. He knew PW-7 as he worked alongwith him. On 12.03.1993, he alongwith PW-7 and others was working on the Eastern flyover bridge.
(ii) Around 3 p.m., he heard a screeching sound on the flyover bridge as if somebody had applied sudden brakes. He saw two persons on a red motor-cycle which stopped on the bridge. The person sitting on the pillion seat went towards the parapet wall and then took out a round object from his pocket and threw it towards the aeroplane which resulted in a big explosion. Then they went away from there on the motor-cycle and PW-14 noticed the number of motor cycle as 3910.
(iii) He left for his native village on the same day as he got scared after seeing the explosion. He came back after 15-20 days and went to Sahar police station.
(iv) He identified the appellant in Court. He identified A-23 also in Court.
(v) He identified the red motor cycle at MIDC police station.
(vi) He identified the appellant in the TIP conducted by PW-469 on 12.05.1993.
Deposition of Vasant Laxman Jadhav (PW-484)
258.5 PW-484, in his deposition dated 22.06.1999 reveals as under:
(i) PW-484 had worked in the Ministry of Civil Aviation and was the then in-charge of the Bomb Detection and Disposal Squad. He is an expert in explosive substances.
(ii) On 12.03.1993, he had inspected the site of the explosion at bay 54 and collected the samples of steel balls from the site.
(iii) He, thereafter, forwarded the said steel balls and soil collected from the blast site to the Forensic Science Laboratory (FSL). FSL report dated 19.03.1993 confirmed traces of Nitrite.
(iv) The delay in sending the samples to FSL (collected on 12.03.1993 and sent to FSL on 15.03.1993) was because his Squad was very busy with investigating bomb explosions across the Bombay.
Deposition of Siddique Babubhai Shaikh (PW-315)
258.6 Deposition of PW-315, who was the API at Sahar Airport police station in 1993 dated 20.04.1998 reveals as under:
(i) On 12.03.1993, at 16:45 hours, he received a call from the Senior Airport Manager regarding the said explosion pursuant to which, he rushed to the spot at Bay 54.
(ii) He then made a spot Panchnama in the presence of panch witnesses which is marked as Exhibit 1196.
(iii) After returning to the Sahar Airport Police Station from the spot of explosion, he duly made an entry in the Station Diary about the events that took place therein.
(iv) On 29.03.1993, after receipt of the CA report in respect of iron balls collected by PW-484 from the blast site, he went through the same and ascertained that the said iron balls were the part of the hand grenade, and thereafter, he lodged the FIR which is marked as Exhibit 1197 and 1197(a).
Deposition of Rajaram Bhikaji Dhadave (PW-301)
258.7 At the relevant time, PW-301 was the Watchman of St. Johns School, Marol, Andheri. In his deposition dated 23.03.1998, he reveals as under:
(i) On 13.03.1993, he saw an abandoned red Yamaha motor cycle by the side of church in the school premises.
(ii) On 16.03.1993, the Principal of the School informed the police about the said motor cycle. The Police took charge of the said motorcycle on 16.03.1993.
Deposition of Hemant Motiram Mankar (PW-599)
258.8 PW-599, who was the PSI attached with MIDC Police Station in 1993, in his deposition dated 08.03.2000 reveals as under:
(i) On 16.03.1993, he got a call from Shri Kuria, Principal of St. Johns School, Marol, Andheri, regarding an abandoned motor-cycle near the church within the school premises. He then deputed two Constables who brought the said red motor-cycle bearing Registration No. MH-01-C-3910 to the police station.
(ii) He, thereafter, spoke to RTO, Tardeo about the above motor-cycle and also registered the motor cycle in muddemal register.
(iii) He identified the aforesaid motor cycle in Court.
Deposition of Manohar Uttamrao Dalvi (PW-504)
258.9 Deposition of PW-504 dated 09.09.1999 reveals that:
(i) He was a Police Inspector at the Sahar Airport Police Station in 1993;
(ii) On 29.03.1993, PW-315 lodged an FIR with the Sahar Airport police station which was recorded by API Hasabnis and, subsequently, the investigation of the said crime was entrusted to PW-504;
(iii) On 01.04.1993, he recorded the statements of eyewitnesses, namely, PW- 7 and PW-14 and got to know about the motorcycle bearing registration no. MH-01-C-3910 which was used by the appellant;
(iv) On 04.04.1993, PW-504 wrote a letter to the R.T.O., Tardeo, for further information about the aforesaid motorcycle. The said letter is marked as Exhibit 1750. On 05.04.1993, he also informed the nearby Police Stations to be on the lookout for the aforesaid motorcycle;
(v) PW-504 received telephonic information from MIDC Police Station that one unclaimed motorcycle was found near Church High School.
(vi) He then took PWs 7 and 14 to MIDC Police Station on 06.04.1993, where they identified the said motorcycle;
(vii) On 16.04.1993, he was informed by the Mahim police Station that the appellant had been arrested in connection with another case;
(viii) On 11.05.1993, PW-504 obtained the custody of the appellant and arrested him;
(ix) He decided to conduct an identification parade for the appellant and A-23 and for the said purpose, he wrote a request letter dated 11.05.1993 to PW-469. Accordingly, a TIP was conducted by PW-469 on 12.05.1993;
(x) When the appellant expressed his desire to make a voluntary confession, PW-504 wrote a letter dated 15.05.1993 to Shri Krishan Lal Bishnoi (PW-193) requesting him to record the confession of the appellant;
(xi) On 16.05.1993, the appellant was produced before PW-193 for recording his confession.
258.10 It is pertinent to mention here that pursuant to recording of the statements of eyewitnesses, viz., PW-7 and PW-14, when PW-504 got to know about the red Yamaha motorcycle bearing registration no. MH-01-C-3910 which was used by the appellant, he had written a letter on 04.04.1993 to R.T.O., Tardeo, for further information about the said vehicle. In response to the above letter, Bhargavram Bhalchandra Phalke (PW-314), the then Deputy Transport Commissioner, R.T.O., Tardeo, sent a letter dated 03.05.1993 which shows the registration of the said motor cycle in the name of Ayub Abdul Razak Memon (AA), brother of Tiger Memon. The above fact is also clearly evident from para 5 of the deposition of PW-314.
Deposition of Vasant Ganpat Kamble (PW-462)
258.11 Deposition of PW-462 dated 07.12.1998 reveals that:
(i) He was the Special Executive Magistrate who had conducted the TIP on 09.04.1993. He had received a memo from Worli Police Station on 08.04.1993 for conducting the aforesaid TIP.
(ii) He got the panch witnesses on 09.04.1993 for the aforesaid TIP.
(iii) He remembered the appellant as Barmare as one of the accused on 09.04.1993.
(iv) He remembered the names of identifying witnesses; one of them was PW-7.
(v) PW-7 identified the appellant as the person who was sitting on the rear side of the motorcycle that had stopped at Sahar Airport Fly-over bridge and the one who then threw a hand-grenade towards the aircraft.
(vi) He prepared the Memorandum Panchnama Exhibit 1479.
Deposition of Ashok Sakharam Budhavale (PW-614)
258.12 At the relevant time, i.e., in the year 1993, PW-614 was the API at Worli Police Station. In his deposition dated 28.03.2000, he reveals as under:
(i) On 09.04.1993, he was told that the TIP in respect of the appellant was to be conducted at around 2.00 pm at Sacred Hearts School by PW-462.
(ii) Accordingly, PW-462 conducted the TIP while PW-614 went outside the school and after two hours (around 04:30 pm) a memorandum of parade drawn by PW-462 was given to PW 614.
(iii) He does not remember making an entry into the station diary for taking the appellant for TIP on 09.04.1993. PW-614 took the appellant without any other officer for TIP but he went alongwith three constables whose names he does not remember.
Deposition of Moreshwar Gopal Thakur (PW-469)
258.13 Deposition of PW-469 dated 01.02.1999 reveals as under:
(i) He was the SEM who conducted the TIP on 12.05.1993 in respect of the appellant. A Constable from Sahar police station came to him on 11.05.1993 on the instructions of Dalvi (PW-504) and gave him a request letter for conducting the said TIP and he agreed to conduct the TIP on 12.05.1993.
(ii) He asked Dalvi (PW-504) to bring two panch witnesses and ten dummies.
(iii) PW-504 went out of the parade room prior to the commencement of the TIP. Both the accused declined to change their clothes prior to the TIP.
(iv) 3 witnesses identified both the suspects at the TIP.
(v) PW-469, thereafter, handed over the custody of accused to PW-504 and prepared a memorandum panchnama (marked as X-550), which was signed by two panchas.
(vi) PW-469 does not remember the names of accused persons, panchas or three witnesses.
(vii) Memorandum Panchnama (Exhibit 1506) was prepared by PW-469.
258.14 The above depositions of PW-462 and PW-469 clearly prove that the TIP dated 09.04.1993 and 12.05.1993 were duly and properly conducted by them and also prove that the appellant was duly identified by PW-7 and PW-14 as the person who was sitting on the rear side of the motorcycle that had stopped on the Sahar Airport Fly-over bridge on 12.03.1993 and the one who then threw a hand-grenade towards the aircraft. Further, no discrepancy has been brought out in their cross-examinations.
Deposition of R.A. Sawant (PW-584)
258.15 Deposition of PW-584 proves the departure of the appellant to Dubai on 28.01.1993 from Bombay. The relevant endorsements on the Embarkation Card (X-661) concerning the departure which was duly stamped by him have been marked as Exhibit Nos. 2016 and 2017 (Box 21).
Deposition of S.K. Borse (PW-217)
258.16 The arrival of the appellant to Bombay on 02.03.1993 from Dubai has been proved by PW-217. The relevant endorsements on the Disembarkation Card (X-319) concerning the arrival have been marked as Exh. Nos. 970 and 970-A colly.
259. A perusal of the aforesaid depositions establish that on 12.03.1993, they were present at the Sahar Airport Fly-over bridge when the said explosion took place and that they both came on a red motor-cycle and the appellant threw a round object towards the aeroplane which resulted in a big explosion. It is further proved that PW-14 duly identified both the persons on the motor-cycle i.e. the appellant and A-23 in court. Further, PW-7 and PW-14 duly identified the appellant and A-23 during the Test Identification Parade.
260. Ms. Farhana Shah, learned counsel for the appellant contended that para 19 of the deposition of PW-7 reveals that two persons identified by him in the TIP were dissimilar in their appearance and that the Criminal Manual requires that in an identification parade, the accused should be placed with his dummies similar to his appearance. With respect to this contention, it is submitted that the deposition of PW-469, the Special Executive Magistrate who conducted the said TIP, does not reveal any material extracted during the cross-examination or otherwise for coming to the conclusion that the dummies selected were of dissimilar appearance. A careful perusal of the evidence of PW-469 and the Memorandum Exh.1506, in fact, reveals that two suspects were put for the parade alongwith about 10 dummies. The reference to the Memorandum also reveals that PW-469 had selected 10 persons of similar appearances with the suspects out of 25 dummies brought by the police. Further, para-26 of his deposition reveals that though his evidence is silent regarding the selection of the dummies, he had asked the police to send 10 dummies and two panchas to the parade room. Thus, in view of this, it is proved that the prosecution has adduced sufficient evidence regarding the dummies selected being of similar appearance with the suspects put in the parade.
261. In the light of the above evidence, it is established that the appellant had thrown hand grenade towards the aircraft thereby causing explosion and consequent damage. The appellant was completely aware of his acts and he had full knowledge that the act committed by him at Sahar Airport Flyover Bridge was likely to result in the death of persons present in the aircraft.
Sentence
262. The appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 26.09.2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) He has been in custody since his arrest in April 1993;
(ii) His children and family members are dependent on him;
(iii) His mother has been ill since 2000; and
(iv) He is innocent. He has also expressed an apology.
263. In our considered view, the appellant was a coveted member of the conspiracy and was indulged in the acts furthering the object of the conspiracy. It is proved beyond doubt that the appellant was in the conspiracy until the final date of achievement of the object of conspiracy. There is no valid ground for interference in the conviction and sentence. Consequently, the appeals fail and are liable to be dismissed.
248. Ms. Farhana Shah, learned counsel appeared for the appellant (A-49) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent.
249. The aforesaid appeals are directed against the final impugned order and judgment of conviction and sentence dated 25.09.2006 and 17.07.2007 respectively, whereby the appellant (A-49) was found guilty and was sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Blast Case, Greater Bombay in B.B.C. No. 1/1993.
Charges:
250. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-49). The material part of the said charge is as under:
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 handgrenades at Machhimar 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.
250.1 In addition to the above-said principal charge of conspiracy, the appellant (A-49) was also charged on the following counts:
At head Secondly; The appellant committed an offence punishable under Section 3(3) of TADA by doing the following overt acts:-
(a) He participated in weapons training at Pakistan;
(b) He attended conspiratorial meetings at the residence of Babloo and Mobina where plans for committing terrorist acts were discussed and chalked out;
(c) He participated in the preparation of vehicle bombs at Al-Hussaini building during the night intervening 11th and 12th of March 1993;
At head Thirdly; The appellant, along with Mohd. Iqbal Mohd. Yusuf Shaikh (A-23), went to the Sahar Airport Flyover bridge on a motorcycle (bearing No. MH-01-C-3910) registered in the name of Ayub Abdul Razak Memon (AA) and lobbed hand grenades at the workers working therein and the aircrafts parked at the Airport and thereby committed an offence punishable under section 3(2)(ii) of TADA read with Section 34 of IPC.
At head Fourthly; By throwing the hand grenades, as mentioned above, with an intention and knowledge to kill the workers, the appellant committed an offence punishable under Section 3(3) of TADA.
At head Fifthly; By throwing the hand grenades which could have caused death of persons working therein, the appellant committed an offence punishable under Section 307 read with Section 34 of IPC.
At head Sixthly; By throwing the hand grenades, as mentioned above, with the knowledge that it could cause damage to properties, the appellant committed an offence punishable under Section 435 read with Sections 511 and 34 of IPC.
At head Seventhly; By throwing the hand grenades with the knowledge and intention that it could cause damage to the public property, the appellant committed an offence punishable under Section 4 of Prevention of Damage to Public Property Act, 1984 read with Sections 511 and 34 of IPC.
At head Eighthly; The appellant was an accessory in causing explosion by explosive substances likely to endanger life and property and thereby committed an offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.
251. The charges mentioned above were proved against the appellant (A-49). The appellant was found guilty on all the aforesaid charges except for charge at head fourthly. The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence
(i) The appellant has been convicted for the offence of conspiracy 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 alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge firstly)
(ii) The appellant has been convicted for the offence under Section 3(3) of TADA for commission of offences mentioned at head secondly and sentenced to RI for 14 years alongwith a fine of Rs. 75,000/-, in default, to further undergo RI for 1 (one and a half) years. (charge secondly)
(iii) The appellant has also been convicted for the offence under Section 3(2)(ii) of TADA and sentenced to RI for 14 years along with a fine of Rs. 75,000/-, in default, to further undergo RI for 1 (one and a half) years. (charge thirdly)
(iv) The appellant has also been convicted for the offence under Section 307 read with Section 34 of IPC and sentenced to RI for 7 years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge fifthly)
(v) The appellant has also been convicted for the offence under Section 435 read with Sections 511 and 34 of IPC and sentenced to RI for 3 (three and a half) years alongwith a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge sixthly)
(vi) The appellant has also been convicted for the offence under Section 4 of the Prevention of Damage to Public Property Act, 1984 read with Sections 511 and 34 of IPC and sentenced to RI for 5 years alongwith a fine of Rs. 5,000/-, in default, to further undergo RI for 1 month. (charge seventhly)
(vii) The appellant has also been convicted for the offence under Sections 3 and 4 of the Explosive Substances Act, 1908 and sentenced to RI for 5 years. (charge eighthly)
252. The evidence against the appellant (A-49) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional Statement of the appellant Nasim Ashraf Shaikh Ali Barmare (A-49)
253. Confessional statement of the appellant (A-49) under Section 15 of TADA has been recorded on 16.05.1993 (09:30 hrs.) and 18.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following facts emerge from the said confessional statement:
(i) The appellant quit his job as a welder after the riots. Atik asked him if he wanted to work in Dubai and introduced him to Jabir (A-93).
(ii) Jabir arranged for his tickets and visa for Dubai and in the morning of 28.01.1993 dropped him at the Airport in a blue Maruti car and handed over the passport and tickets with the instruction that he will get his Visa on arrival at Dubai.
(iii) He travelled to Dubai by Emirates flight and came out of the Airport after taking his Visa and getting clearance. In Dubai, he listened to a tape recorded provoking speech of a Maulana regarding riots in Ayodhya, Surat and Bombay which motivated him to take revenge for the same.
(iv) On 08/09.02.1993, Ayub dropped the appellant, Niyaz and Feroz at Dubai Airport and told them that they were being sent to Pakistan for training of arms and ammunitions and that the said training would be useful at the time of riots and that they will get arms in Bombay.
(v) The appellant and others went to Pakistan by a PIA flight and they came out of the Airport without any clearance.
(vi) He was given a new name as Yusuf in Pakistan. The appellant and others were given training in use of arms and ammunitions.
(vii) Tiger Memon also came to Pakistan during the training. The appellant also got training in preparation of bombs using RDX and exploding the same using aluminium coloured pencil like detonators and in throwing of hand grenades.
(viii) After the training, he alongwith others went back to Dubai on 25.02.1993. In Dubai, they took oath of maintaining secrecy regarding the aforesaid training by putting their hands on holy Quran.
(ix) The appellant then returned back to Bombay alongwith Rafiq, Shahnawaz, Firoz and Abdul.
(x) He attended a meeting on 10.03.1993 in a flat at Bandra, Hill road, where all the co-accused persons who participated in the training were also present.
(xi) On 11.03.1993, PW-2 took him to the Airport flyover and told him that on 12.03.1993, he has to throw handgrenades on the aeroplanes which were parked there. PW-2 carefully explained to him as to from where he has to come and where he has to go.
(xii) PW-2 then took him to Tigers residence at Al-Hussaini where he saw that about 20-25 boys had gathered there who had also taken training in Pakistan,.
(xiii) Tiger Memon then told the appellant and Mohammed Iqbal Mohammed Yusuf Shaikh (A-23) to go to Sahar Airport on 12.03.1993 in the afternoon for throwing handgrenades as instructed by PW-2.
(xiv) The appellant, along with others, went to the garage situated behind the Al-Hussaini building and filled RDX mixed with steel scrap in a Maruti car. He, alongwith others, also filled another Maruti vehicle and a scooter with bomb made of RDX.
(xv) On 12.03.1993, in the afternoon, PW-2 gave him 7 handgrenades, one loaded gun and a small plastic bag containing bullets and directed him to go for the mission.
(xvi) The appellant and A-23 went to the Sahar Airport by a red coloured Yamaha motorcycle. The last number of the motorcycle was 3910. At about 15:15 hours, they parked the motorcycle on the flyover bridge and after observing the situation, the appellant pelted a hand grenade towards an Air India aircraft. However, the hand grenade could not reach the plane and it exploded in mid-air.
(xvii) Thereafter, the appellant and A-23 fled away from there and went to Andheri Kurla road near the Church where they parked the motorcycle and went back to their home.
(xviii) On reaching home, the appellant concealed four hand grenades and a pistol and after one/two days of Eid, he gave the said hand grenades to his friend Asif and the pistol and bullets to his friend Ayub in order to keep the same with them.
254. A perusal of the confession of the appellant establishes that he played an active role in the entire conspiracy, viz., participation in the weapons training at Pakistan; participation in the conspiratorial meeting at Mobinas residence where plans were chalked out for committing terrorist acts; active participation in filling explosive substances in vehicles for the purpose of causing explosions in various parts of the Bombay and lobbing hand-grenades at Sahar Airport.
255. The prosecution highlighted that the appellant (A-49) has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards prescribed under Section 15 of TADA and the rules framed thereunder. The said facts have been duly established by the recording officer PW-193.
Confessional Statements of co-accused
256. Apart from his own confession, the involvement of the appellant (A-49) is further established by the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-49) are summarized hereinbelow:
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
256.1 Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-13 with respect to the appellant is summarised hereinunder:
(i) The appellant was present in the conspiratorial meeting held on 10.03.1993 in a flat on Hill Road, Bandra.
(ii) The appellant was present in the garage when RDX was being loaded in vehicles in the night intervening 11/12.03.1993.
(iii) The appellant was present at Tigers residence at Al-Hussaini building on 12.03.1993 in the afternoon.
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
256.2 Confessional statement of A-16 under Section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The confession of A-16 reveals that the appellant attended weapons training at Pakistan where he was given a fake name Yusuf.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
256.3 Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (10:00 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-23 with respect to the appellant is summarised hereinunder:
i) The appellant participated in filling of RDX in vehicles at Al-Hussaini building.
ii) On 12.03.1993, Javed Chikna and PW-2 distributed handgrenades to A-23 and the appellant at Al-Hussaini Building and, thereafter, Javed Chikna gave the key of a red coloured Yamaha motorcycle to A-23 and told him to take the appellant to the Airport. Javed Chikna also gave a pistol and bullets to the appellant.
iii) They then went to the flyover bridge near the Airport and on reaching there, the appellant asked A-23 to keep the bike engine on start mode and lobbed the hand grenade towards the aircrafts which resulted into a loud explosion. Thereafter, they fled away from there and went to Andheri-Kurla road where they left the motorcycle near the Church and went back to their homes.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
256.4 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confession reveals that the appellant underwent training at Pakistan and he also took oath to commit Jehad.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
256.5 Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay A brief summary of the confession of A-32 with respect to the appellant is summarised hereinunder:
(i) The appellant attended the conspiratorial meeting at Al-Hussaini building on 10.03.1993.
(ii) The appellant was present at Al-Hussaini building on the night of 11.03.1993.
(iii) On 12.03.1993, PW-2 gave handgrenades to him and Javed Chikna asked them to leave for the mission.
Confessional Statement of Abdul Akhtar Khan (A-36)
256.6 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-36 with respect to the appellant is summarised hereinunder:
(i) The appellant was present in Pakistan at the time of training and he left on 25.02.1993.
(ii) The appellant was present at Tigers residence at Al-Hussaini on 11.03.1993. Javed Chikna asked the appellant and A-36 to unload RDX in the garage.
(iii) The appellant was loading RDX into vehicles.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
256.7 Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. A brief summary of the confession of A-39 with respect to the appellant is summarised hereinunder:
(i) The appellant met A-39 in Dubai where he told him that they have to go to Pakistan to take training in arms.
(ii) The appellant was renamed as Yusuf in Pakistan.
(iii) The appellant was present in the meeting at Dubai where all co- trainer boys took oath by swearing on the Quran.
Confessional Statement of Salim Rahim Shaikh (A-52)
256.8 Confessional statement of A-52 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The confession of A-52 reveals that the appellant underwent training at Pakistan. In his confessional statement, the appellant has also been referred to as Yusuf, the name given to him in Pakistan.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
256.9 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by Shri HC Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. A brief summary of the confession of A-64 with respect to the appellant is summarised hereinunder:
(i) The appellant was present in Pakistan.
(ii) He attended the meeting on 10.03.1993 at the house of Mobina.
(iii) He was present at Al-Hussaini building on the night of 11.03.1993.
(iv) He assisted in filling RDX in vehicles.
Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
256.10 Confessional statement of A-94 under Section 15 of TADA has been recorded on 14.05.1993 (18:30 hrs.) and 16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-94 with respect to the appellant is summarised hereinunder:
(i) The appellant received training in Pakistan.
(ii) He was present in the meeting at Dubai where oath was taken by the trainees by swearing on Quran.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
256.11 Confessional statement of A-98 under Section 15 of TADA has been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confession of A-98 with respect to the appellant is summarised hereinunder:
(i) The appellant was already present in Dubai when A-98 reached there.
(ii) The appellant, alongwith A-39 and A-98, went to Islamabad by a PIA flight.
(iii) The appellant was renamed as Yusuf in Pakistan.
(iv) He left the training camp in Pakistan on 25.02.1993 and went to Islamabad.
(v) He was present at a house in Bandra where the meeting took place among conspirators on 08/09.03.1993.
Confessional Statement of Parvez Mohd. Parvez Zulfikar Qureshi (A-100)
256.12 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The confession of A-100 reveals that he met the appellant in Pakistan at the time of training and he left the training camp on 25.02.1993.
257. A perusal of the confessional statements of all the above accused, viz., A-13, A-16, A-23, A-29, A-32, A-36, A-39, A-52, A-64, A-94, A-98 and A-100 clearly establish the fact that it corroborate with each other and also with the confessional statement of the appellant (A-49). After consideration of all the abovesaid confessional statements of the co- accused, the involvement of the appellant in the conspiracy is clearly established inasmuch as
(i) He went to Pakistan and underwent training in arms and ammunitions and explosives;
(ii) After completion of the aforesaid training, he took oath of maintaining secrecy and committing Jehad alongwith other co- accused in Dubai;
(iii) He participated in the conspiratorial meeting held at the residence of Mobina (A-96) where plans for executing the blasts were discussed;
(iv) He actively participated in filling of explosives in vehicles in the night intervening 11/12.03.1993 and
(v) He went alongwith A-23 from Al-Hussaini Building on a red coloured Yamaha motorcycle driven by A-23 to the Sahar Airport Flyover Bridge and pelted hand-grenade at the aircraft, and thereafter, fled away and went to Andheri-Kurla road where they left the motorcycle near a Church.
Deposition of Prosecution Witnesses
258. Apart from the aforesaid evidence, the involvement and role of the appellant in the conspiracy, as stated above, is also revealed by the deposition of the following prosecution witnesses:
Deposition of Mohammed Usman Jan Khan (PW-2) (Approver)
258.1 The deposition of PW-2 (Approver) reveals that:
(i) He knows the appellant and identified him in the Court.
(ii) The appellant was introduced to PW-2 using a fake name Yusuf at the training camp in Pakistan.
(iii) On completion of the aforesaid training and after returning to Dubai, PW-2, along with the appellant and others, took oath of maintaining secrecy by swearing on Quran.
(iv) The appellant attended the meetings at Shakils residence on 07.03.1993 and 10.03.1993.
(v) The appellant was present in the garage at Al-Hussaini building on the night of 11.03.1993 and filled RDX in vehicles.
(vi) Javed Chikna told the appellant to remove AK-56 rifles and handgrenades from the gunny bag kept in the said Maruti van to the Tigers flat on the fifth floor.
(vii) On 12.03.1993, Javed Chikna gave 4 hand grenades each to the appellant and A-23 and told them to go to Sahar Airport in order to throw the same.
258.2 The above deposition of the approver duly corroborates with the confessional statement of the appellant as well as with the confessions made by co-accused persons that the appellant participated in the weapons training at Pakistan and after completion of the said training, took oath of maintaining secrecy and committing Jehad alongwith other co-accused. It further corroborates with the fact that the appellant participated in the conspiratorial meetings and went alongwith A-23 to Sahar Airport in order to throw hand grenades.
Deposition of Guruprasad Shrikrishna (PW-7)
258.3 PW-7, an eyewitness to the explosion at Sahar Airport reveals the following:
(i) He was working as a painter in Bombay. On 12.03.1993, he was painting the parapet wall of the Sahar Airport flyover bridge.
(ii) Around 3 to 3.30 p.m., he heard a screeching sound on the fly-over bridge as if somebody had applied sudden brakes. He saw two persons on a red motor-cycle which stopped on the bridge. They went towards the parapet wall and came back to the motor-cycle. The person sitting on the pillion seat again went towards the wall, took out a round object from his pocket and threw it towards the aeroplane which resulted in a big explosion. Then they went away from there on the motor-cycle and PW-7 saw the number of motor cycle as 3910.
(iii) He identified the red motor cycle at MIDC police station.
(iv) He identified the appellant in the Test Identification Parade (TIP) dated 09.04.1993 conducted by PW-462.
(v) He also identified the appellant in the TIP dated 12.05.1993 conducted by PW-469.
Deposition of Subhash Triveni Harijan (PW-14)
258.4 PW-14, who was also an eye-witness to the incident, deposed on 08.11.1995, which reveals the following:
(i) At the relevant time, i.e., in March 1993, he was employed as a painter. He knew PW-7 as he worked alongwith him. On 12.03.1993, he alongwith PW-7 and others was working on the Eastern flyover bridge.
(ii) Around 3 p.m., he heard a screeching sound on the flyover bridge as if somebody had applied sudden brakes. He saw two persons on a red motor-cycle which stopped on the bridge. The person sitting on the pillion seat went towards the parapet wall and then took out a round object from his pocket and threw it towards the aeroplane which resulted in a big explosion. Then they went away from there on the motor-cycle and PW-14 noticed the number of motor cycle as 3910.
(iii) He left for his native village on the same day as he got scared after seeing the explosion. He came back after 15-20 days and went to Sahar police station.
(iv) He identified the appellant in Court. He identified A-23 also in Court.
(v) He identified the red motor cycle at MIDC police station.
(vi) He identified the appellant in the TIP conducted by PW-469 on 12.05.1993.
Deposition of Vasant Laxman Jadhav (PW-484)
258.5 PW-484, in his deposition dated 22.06.1999 reveals as under:
(i) PW-484 had worked in the Ministry of Civil Aviation and was the then in-charge of the Bomb Detection and Disposal Squad. He is an expert in explosive substances.
(ii) On 12.03.1993, he had inspected the site of the explosion at bay 54 and collected the samples of steel balls from the site.
(iii) He, thereafter, forwarded the said steel balls and soil collected from the blast site to the Forensic Science Laboratory (FSL). FSL report dated 19.03.1993 confirmed traces of Nitrite.
(iv) The delay in sending the samples to FSL (collected on 12.03.1993 and sent to FSL on 15.03.1993) was because his Squad was very busy with investigating bomb explosions across the Bombay.
Deposition of Siddique Babubhai Shaikh (PW-315)
258.6 Deposition of PW-315, who was the API at Sahar Airport police station in 1993 dated 20.04.1998 reveals as under:
(i) On 12.03.1993, at 16:45 hours, he received a call from the Senior Airport Manager regarding the said explosion pursuant to which, he rushed to the spot at Bay 54.
(ii) He then made a spot Panchnama in the presence of panch witnesses which is marked as Exhibit 1196.
(iii) After returning to the Sahar Airport Police Station from the spot of explosion, he duly made an entry in the Station Diary about the events that took place therein.
(iv) On 29.03.1993, after receipt of the CA report in respect of iron balls collected by PW-484 from the blast site, he went through the same and ascertained that the said iron balls were the part of the hand grenade, and thereafter, he lodged the FIR which is marked as Exhibit 1197 and 1197(a).
Deposition of Rajaram Bhikaji Dhadave (PW-301)
258.7 At the relevant time, PW-301 was the Watchman of St. Johns School, Marol, Andheri. In his deposition dated 23.03.1998, he reveals as under:
(i) On 13.03.1993, he saw an abandoned red Yamaha motor cycle by the side of church in the school premises.
(ii) On 16.03.1993, the Principal of the School informed the police about the said motor cycle. The Police took charge of the said motorcycle on 16.03.1993.
Deposition of Hemant Motiram Mankar (PW-599)
258.8 PW-599, who was the PSI attached with MIDC Police Station in 1993, in his deposition dated 08.03.2000 reveals as under:
(i) On 16.03.1993, he got a call from Shri Kuria, Principal of St. Johns School, Marol, Andheri, regarding an abandoned motor-cycle near the church within the school premises. He then deputed two Constables who brought the said red motor-cycle bearing Registration No. MH-01-C-3910 to the police station.
(ii) He, thereafter, spoke to RTO, Tardeo about the above motor-cycle and also registered the motor cycle in muddemal register.
(iii) He identified the aforesaid motor cycle in Court.
Deposition of Manohar Uttamrao Dalvi (PW-504)
258.9 Deposition of PW-504 dated 09.09.1999 reveals that:
(i) He was a Police Inspector at the Sahar Airport Police Station in 1993;
(ii) On 29.03.1993, PW-315 lodged an FIR with the Sahar Airport police station which was recorded by API Hasabnis and, subsequently, the investigation of the said crime was entrusted to PW-504;
(iii) On 01.04.1993, he recorded the statements of eyewitnesses, namely, PW- 7 and PW-14 and got to know about the motorcycle bearing registration no. MH-01-C-3910 which was used by the appellant;
(iv) On 04.04.1993, PW-504 wrote a letter to the R.T.O., Tardeo, for further information about the aforesaid motorcycle. The said letter is marked as Exhibit 1750. On 05.04.1993, he also informed the nearby Police Stations to be on the lookout for the aforesaid motorcycle;
(v) PW-504 received telephonic information from MIDC Police Station that one unclaimed motorcycle was found near Church High School.
(vi) He then took PWs 7 and 14 to MIDC Police Station on 06.04.1993, where they identified the said motorcycle;
(vii) On 16.04.1993, he was informed by the Mahim police Station that the appellant had been arrested in connection with another case;
(viii) On 11.05.1993, PW-504 obtained the custody of the appellant and arrested him;
(ix) He decided to conduct an identification parade for the appellant and A-23 and for the said purpose, he wrote a request letter dated 11.05.1993 to PW-469. Accordingly, a TIP was conducted by PW-469 on 12.05.1993;
(x) When the appellant expressed his desire to make a voluntary confession, PW-504 wrote a letter dated 15.05.1993 to Shri Krishan Lal Bishnoi (PW-193) requesting him to record the confession of the appellant;
(xi) On 16.05.1993, the appellant was produced before PW-193 for recording his confession.
258.10 It is pertinent to mention here that pursuant to recording of the statements of eyewitnesses, viz., PW-7 and PW-14, when PW-504 got to know about the red Yamaha motorcycle bearing registration no. MH-01-C-3910 which was used by the appellant, he had written a letter on 04.04.1993 to R.T.O., Tardeo, for further information about the said vehicle. In response to the above letter, Bhargavram Bhalchandra Phalke (PW-314), the then Deputy Transport Commissioner, R.T.O., Tardeo, sent a letter dated 03.05.1993 which shows the registration of the said motor cycle in the name of Ayub Abdul Razak Memon (AA), brother of Tiger Memon. The above fact is also clearly evident from para 5 of the deposition of PW-314.
Deposition of Vasant Ganpat Kamble (PW-462)
258.11 Deposition of PW-462 dated 07.12.1998 reveals that:
(i) He was the Special Executive Magistrate who had conducted the TIP on 09.04.1993. He had received a memo from Worli Police Station on 08.04.1993 for conducting the aforesaid TIP.
(ii) He got the panch witnesses on 09.04.1993 for the aforesaid TIP.
(iii) He remembered the appellant as Barmare as one of the accused on 09.04.1993.
(iv) He remembered the names of identifying witnesses; one of them was PW-7.
(v) PW-7 identified the appellant as the person who was sitting on the rear side of the motorcycle that had stopped at Sahar Airport Fly-over bridge and the one who then threw a hand-grenade towards the aircraft.
(vi) He prepared the Memorandum Panchnama Exhibit 1479.
Deposition of Ashok Sakharam Budhavale (PW-614)
258.12 At the relevant time, i.e., in the year 1993, PW-614 was the API at Worli Police Station. In his deposition dated 28.03.2000, he reveals as under:
(i) On 09.04.1993, he was told that the TIP in respect of the appellant was to be conducted at around 2.00 pm at Sacred Hearts School by PW-462.
(ii) Accordingly, PW-462 conducted the TIP while PW-614 went outside the school and after two hours (around 04:30 pm) a memorandum of parade drawn by PW-462 was given to PW 614.
(iii) He does not remember making an entry into the station diary for taking the appellant for TIP on 09.04.1993. PW-614 took the appellant without any other officer for TIP but he went alongwith three constables whose names he does not remember.
Deposition of Moreshwar Gopal Thakur (PW-469)
258.13 Deposition of PW-469 dated 01.02.1999 reveals as under:
(i) He was the SEM who conducted the TIP on 12.05.1993 in respect of the appellant. A Constable from Sahar police station came to him on 11.05.1993 on the instructions of Dalvi (PW-504) and gave him a request letter for conducting the said TIP and he agreed to conduct the TIP on 12.05.1993.
(ii) He asked Dalvi (PW-504) to bring two panch witnesses and ten dummies.
(iii) PW-504 went out of the parade room prior to the commencement of the TIP. Both the accused declined to change their clothes prior to the TIP.
(iv) 3 witnesses identified both the suspects at the TIP.
(v) PW-469, thereafter, handed over the custody of accused to PW-504 and prepared a memorandum panchnama (marked as X-550), which was signed by two panchas.
(vi) PW-469 does not remember the names of accused persons, panchas or three witnesses.
(vii) Memorandum Panchnama (Exhibit 1506) was prepared by PW-469.
258.14 The above depositions of PW-462 and PW-469 clearly prove that the TIP dated 09.04.1993 and 12.05.1993 were duly and properly conducted by them and also prove that the appellant was duly identified by PW-7 and PW-14 as the person who was sitting on the rear side of the motorcycle that had stopped on the Sahar Airport Fly-over bridge on 12.03.1993 and the one who then threw a hand-grenade towards the aircraft. Further, no discrepancy has been brought out in their cross-examinations.
Deposition of R.A. Sawant (PW-584)
258.15 Deposition of PW-584 proves the departure of the appellant to Dubai on 28.01.1993 from Bombay. The relevant endorsements on the Embarkation Card (X-661) concerning the departure which was duly stamped by him have been marked as Exhibit Nos. 2016 and 2017 (Box 21).
Deposition of S.K. Borse (PW-217)
258.16 The arrival of the appellant to Bombay on 02.03.1993 from Dubai has been proved by PW-217. The relevant endorsements on the Disembarkation Card (X-319) concerning the arrival have been marked as Exh. Nos. 970 and 970-A colly.
259. A perusal of the aforesaid depositions establish that on 12.03.1993, they were present at the Sahar Airport Fly-over bridge when the said explosion took place and that they both came on a red motor-cycle and the appellant threw a round object towards the aeroplane which resulted in a big explosion. It is further proved that PW-14 duly identified both the persons on the motor-cycle i.e. the appellant and A-23 in court. Further, PW-7 and PW-14 duly identified the appellant and A-23 during the Test Identification Parade.
260. Ms. Farhana Shah, learned counsel for the appellant contended that para 19 of the deposition of PW-7 reveals that two persons identified by him in the TIP were dissimilar in their appearance and that the Criminal Manual requires that in an identification parade, the accused should be placed with his dummies similar to his appearance. With respect to this contention, it is submitted that the deposition of PW-469, the Special Executive Magistrate who conducted the said TIP, does not reveal any material extracted during the cross-examination or otherwise for coming to the conclusion that the dummies selected were of dissimilar appearance. A careful perusal of the evidence of PW-469 and the Memorandum Exh.1506, in fact, reveals that two suspects were put for the parade alongwith about 10 dummies. The reference to the Memorandum also reveals that PW-469 had selected 10 persons of similar appearances with the suspects out of 25 dummies brought by the police. Further, para-26 of his deposition reveals that though his evidence is silent regarding the selection of the dummies, he had asked the police to send 10 dummies and two panchas to the parade room. Thus, in view of this, it is proved that the prosecution has adduced sufficient evidence regarding the dummies selected being of similar appearance with the suspects put in the parade.
261. In the light of the above evidence, it is established that the appellant had thrown hand grenade towards the aircraft thereby causing explosion and consequent damage. The appellant was completely aware of his acts and he had full knowledge that the act committed by him at Sahar Airport Flyover Bridge was likely to result in the death of persons present in the aircraft.
Sentence
262. The appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 26.09.2006 in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) He has been in custody since his arrest in April 1993;
(ii) His children and family members are dependent on him;
(iii) His mother has been ill since 2000; and
(iv) He is innocent. He has also expressed an apology.
263. In our considered view, the appellant was a coveted member of the conspiracy and was indulged in the acts furthering the object of the conspiracy. It is proved beyond doubt that the appellant was in the conspiracy until the final date of achievement of the object of conspiracy. There is no valid ground for interference in the conviction and sentence. Consequently, the appeals fail and are liable to be dismissed.
