State of Maharashtra Vs. Fazal Rehman Abdul
EmailAppeal: Criminal Appeal No. 418 of 2011
WITH
Criminal Appeal Nos. 409, 601, 404, 405, 394 of 2011
WITH Criminal Appeal No. 1033 of 2012
WITH Criminal Appeal No. 594 of 2011
WITH Criminal Appeal No. 402 of 2011
WITH Criminal Appeal No. 1022 of 2012
WITH Criminal Appeal No. 393 of 2011
WITH Criminal Appeal No. 391 of 2011
WITH Criminal Appeal No. 1027 of 2012
WITH Criminal Appeal No. 597 of 2011
WITH Criminal Appeal No. 407 of 2011
WITH Criminal Appeal No. 1025 of 2012
WITH Criminal Appeal No. 599 of 2011
WITH Criminal Appeal No. 395 of 2011
AND Criminal Appeal No. 397 of 2011
WITH
Criminal Appeal Nos. 409, 601, 404, 405, 394 of 2011
WITH Criminal Appeal No. 1033 of 2012
WITH Criminal Appeal No. 594 of 2011
WITH Criminal Appeal No. 402 of 2011
WITH Criminal Appeal No. 1022 of 2012
WITH Criminal Appeal No. 393 of 2011
WITH Criminal Appeal No. 391 of 2011
WITH Criminal Appeal No. 1027 of 2012
WITH Criminal Appeal No. 597 of 2011
WITH Criminal Appeal No. 407 of 2011
WITH Criminal Appeal No. 1025 of 2012
WITH Criminal Appeal No. 599 of 2011
WITH Criminal Appeal No. 395 of 2011
AND Criminal Appeal No. 397 of 2011
Petitioner: State of Maharashtra
Respondent: Fazal Rehman Abdul
Apeal: Criminal Appeal No. 418 of 2011
WITH
Criminal Appeal Nos. 409, 601, 404, 405, 394 of 2011
WITH Criminal Appeal No. 1033 of 2012
WITH Criminal Appeal No. 594 of 2011
WITH Criminal Appeal No. 402 of 2011
WITH Criminal Appeal No. 1022 of 2012
WITH Criminal Appeal No. 393 of 2011
WITH Criminal Appeal No. 391 of 2011
WITH Criminal Appeal No. 1027 of 2012
WITH Criminal Appeal No. 597 of 2011
WITH Criminal Appeal No. 407 of 2011
WITH Criminal Appeal No. 1025 of 2012
WITH Criminal Appeal No. 599 of 2011
WITH Criminal Appeal No. 395 of 2011
AND Criminal Appeal No. 397 of 2011
WITH
Criminal Appeal Nos. 409, 601, 404, 405, 394 of 2011
WITH Criminal Appeal No. 1033 of 2012
WITH Criminal Appeal No. 594 of 2011
WITH Criminal Appeal No. 402 of 2011
WITH Criminal Appeal No. 1022 of 2012
WITH Criminal Appeal No. 393 of 2011
WITH Criminal Appeal No. 391 of 2011
WITH Criminal Appeal No. 1027 of 2012
WITH Criminal Appeal No. 597 of 2011
WITH Criminal Appeal No. 407 of 2011
WITH Criminal Appeal No. 1025 of 2012
WITH Criminal Appeal No. 599 of 2011
WITH Criminal Appeal No. 395 of 2011
AND Criminal Appeal No. 397 of 2011
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
CRIMINAL LAWS
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 3(2)(i)(ii), 3(3), (4), 5 and 6 – Penal Code, 1860, Sections 120B read with Sections 302, 307,326,324,427,435,436, 201 and 212 IPC – Arms Act, 1959, Sections 3 and 7 read with Sections 25 (IA), (lB)(a) – Explosives Act, 1884, Section 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Bombay blast case – Respondent (A-76) charged for conspiring aforesaid offences with others and for persuading his brother-in-law A-39 (dead) to undergo weapons training in Pakistan – Also held for keeping 4 handgrenades and handing over the same to A-93 – Acquittal by Designated Court – Whether calls for reversal – Confessional statement by A-39 who has been awarded death, revealed that though A-76 used to advise A-39 to go to Dubai, it was a person he met in Dubai who told him to go to Pakistan with an assurance that purpose of visit would be explained later – Thus respondent had no knowledge of the purpose of going to Dubai or Pakistan – So far as allegation of possessing hand grenades is concerned PW-513, though deposed about recovery of handgrenades from A-93, did not mention about respondent A-76. Held, no interference needed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 3(2)(i)(ii), 3(3), (4), 5 and 6 – Penal Code, 1860, Sections 120B read with Sections 302, 307,326,324,427,435,436, 201 and 212 IPC – Arms Act, 1959, Sections 3 and 7 read with Sections 25 (IA), (lB)(a) – Explosives Act, 1884, Section 9B (1)(a)(b)(c) – Explosive Substances Act, 1908, Sections 3, 4(a)(b), 5 and 6 – Bombay blast case – Respondent (A-76) charged for conspiring aforesaid offences with others and for persuading his brother-in-law A-39 (dead) to undergo weapons training in Pakistan – Also held for keeping 4 handgrenades and handing over the same to A-93 – Acquittal by Designated Court – Whether calls for reversal – Confessional statement by A-39 who has been awarded death, revealed that though A-76 used to advise A-39 to go to Dubai, it was a person he met in Dubai who told him to go to Pakistan with an assurance that purpose of visit would be explained later – Thus respondent had no knowledge of the purpose of going to Dubai or Pakistan – So far as allegation of possessing hand grenades is concerned PW-513, though deposed about recovery of handgrenades from A-93, did not mention about respondent A-76. Held, no interference needed.
Held:
Prakash Khanvilkar (PW-513), deposed about the recovery of handgrenades from Mohmed Jabir Abdul Latif Mansoor (A-93). However, he does not make any reference so far as the respondent Fazal Rehman Abdul Khan (A-76) is concerned. (Para 7)
There was nothing on record to show that the respondent though facilitated sending Firoz @ Akram Amani Malik (A-39) to Dubai, had any knowledge of the purpose of going to Dubai or Pakistan for the simple reason that Firoz @ Akram Amani Malik (A-39) himself disclosed that he was told in Dubai that he would go to Pakistan and the purpose for going there would be explained to him later on. The confessional statement of A-39 did not reveal the involvement of the respondent in persuading A-39 to undergo weapons training in Pakistan. (Para 8)
Appeal against acquittal – Parameters for interference, stated. (Para 9)
Cases Reffered:
1. Bharatbhai v. State of Gujarat [JT 2002 (7) SC 529] (Para 50)
2. Lal Singh v. State of Gujarat & Anr. [JT 2001 (1) SC 410] (Para 49)
3. S.N. Dube v. N.B. Bhoir & Ors. [JT 2000 (1) SC 220] (Para 48)
2. Lal Singh v. State of Gujarat & Anr. [JT 2001 (1) SC 410] (Para 49)
3. S.N. Dube v. N.B. Bhoir & Ors. [JT 2000 (1) SC 220] (Para 48)
JUDGEMENT:
DR. B.S. CHAUHAN, J.
1. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007, passed by a Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA) in the Bombay Blast Case No. 1/93, acquitting the respondent of all the charges.
2. Facts and circumstances giving rise to this appeal are that :
A. As the facts of this case and all legal issues involved herein have been elaborately dealt with in the connected appeal i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI], it may be pertinent to mention only the relevant facts and charges against the respondent.
B. Bombay Blast took place on 12.3.1993 in which 257 persons lost their lives and 713 were injured. In addition thereto, there had been loss of property worth several crores. The Bombay police investigated the matter at initial stage but subsequently it was entrusted to the Central Bureau of Investigation (hereinafter referred to as CBI) and on conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Out of the accused persons against whom chargesheet was filed, 40 accused could not be put to trial as they have been absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Further the Designated Court discharged 2 accused during trial and the remaining persons including respondent (A-76) stood convicted.
C. The respondent had been charged for general conspiracy which is framed against all the accused persons for the offences punishable under Section 3(3) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as the IPC) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307,326,324,427,435,436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (I-A), (l-B)(a) of the Arms Act, 1959, Sections 9-B (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.
D. In addition, the respondent had been charged for persuading his brother-in-law Firoz Amani Malik (A-39) to undergo weapons training in Pakistan and keeping in his possession 4 hand-grenades brought to him by Firoz Amani Malik (A-39) and for handing over the same to Mohd. Jabir (A-93-dead), showing that the same had been smuggled into India for committing terrorist activities.
E. The Designated Court after conclusion of the trial acquitted the respondent of all the charges.
Hence, this appeal.
3. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the respondent had been responsible to send the co-accused to Dubai, and further to Pakistan to have training for handling the arms, ammunition and explosives, and therefore, his acquittal for all the charges is liable to be reversed.
4. On the contrary, learned counsel appearing for the respondent has submitted that the co-accused (A-39), who was brother-in-law of respondent himself, had not been aware of the purpose for which he had been taken to Dubai. The respondent cannot be held responsible for sending Firoz (A-39) for any criminal activity. Thus, the well- reasoned judgment of the Special Judge does not require interference.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
There is no confession by the respondent accused (A-76).
6. Confessional statement of Firoz @ Akram Amani Malik (A-39) revealed that the said respondent was the brother-in-law of Firoz @ Akram Amani Malik (A-39). The said accused Firoz @ Akram Amani Malik (A-39) had been awarded the death sentence in this very case and his appeal is being heard alongwith this case. Respondent (A-76) used to advise the said accused (A-39) to go to Dubai and the said accused also expressed his willingness and desire to go to Dubai in the month of January, 1993. He (A-39) got a passport and went to Dubai with Miyaz. After getting a visa they left the airport. One person named Ayub Bhai took them to a building near Kadar Hotel. There they found another person Nasim who took them to a flat on the 2nd floor. Nasim told him there that he would be going to Pakistan and his purpose for this visit would be explained later.
7. Prakash Khanvilkar (PW-513), deposed about the recovery of hand-grenades from Mohmed Jabir Abdul Latif Mansoor (A-93). However, he does not make any reference so far as the respondent Fazal Rehman Abdul Khan (A-76) is concerned.
8. The Designated Court after appreciating the entire evidence came to the conclusion that there was nothing on record to show that the respondent though facilitated sending Firoz @ Akram Amani Malik (A-39) to Dubai, had any knowledge of the purpose of going to Dubai or Pakistan for the simple reason that Firoz @ Akram Amani Malik (A-39) himself disclosed that he was told in Dubai that he would go to Pakistan and the purpose for going there would be explained to him later on. The confessional statement of A-39 did not reveal the involvement of the respondent in persuading A-39 to undergo weapons training in Pakistan.
9. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
10. We had been taken through the evidence by Shri Mukul Gupta, learned senior counsel for the appellant, but we do not find any reason to interfere with the cogent reasons given by the Special Judge. The appeal lacks merit and is accordingly dismissed.
1. This criminal appeal has been preferred against the impugned judgment and order dated 2.8.2007, passed by a Special Judge of the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA) in the Bombay Blast Case No. 1/93, acquitting the respondent of all the charges.
2. Facts and circumstances giving rise to this appeal are that :
A. As the facts of this case and all legal issues involved herein have been elaborately dealt with in the connected appeal i.e. Criminal Appeal No. 1728 of 2007 [Yakub Abdul Razak Memon v. State of Maharashtra thr. CBI], it may be pertinent to mention only the relevant facts and charges against the respondent.
B. Bombay Blast took place on 12.3.1993 in which 257 persons lost their lives and 713 were injured. In addition thereto, there had been loss of property worth several crores. The Bombay police investigated the matter at initial stage but subsequently it was entrusted to the Central Bureau of Investigation (hereinafter referred to as CBI) and on conclusion of the investigation, a chargesheet was filed against a large number of accused persons. Out of the accused persons against whom chargesheet was filed, 40 accused could not be put to trial as they have been absconding. Thus, the Designated Court under TADA framed charges against 138 accused persons. During the trial, 11 accused died and 2 accused turned hostile. Further the Designated Court discharged 2 accused during trial and the remaining persons including respondent (A-76) stood convicted.
C. The respondent had been charged for general conspiracy which is framed against all the accused persons for the offences punishable under Section 3(3) TADA and Section 120-B of Indian Penal Code, 1860 (hereinafter referred to as the IPC) read with Sections 3(2)(i)(ii), 3(3), (4), 5 and 6 TADA and read with Sections 302, 307,326,324,427,435,436, 201 and 212 IPC and offences under Sections 3 and 7 read with Sections 25 (I-A), (l-B)(a) of the Arms Act, 1959, Sections 9-B (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.
D. In addition, the respondent had been charged for persuading his brother-in-law Firoz Amani Malik (A-39) to undergo weapons training in Pakistan and keeping in his possession 4 hand-grenades brought to him by Firoz Amani Malik (A-39) and for handing over the same to Mohd. Jabir (A-93-dead), showing that the same had been smuggled into India for committing terrorist activities.
E. The Designated Court after conclusion of the trial acquitted the respondent of all the charges.
Hence, this appeal.
3. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the respondent had been responsible to send the co-accused to Dubai, and further to Pakistan to have training for handling the arms, ammunition and explosives, and therefore, his acquittal for all the charges is liable to be reversed.
4. On the contrary, learned counsel appearing for the respondent has submitted that the co-accused (A-39), who was brother-in-law of respondent himself, had not been aware of the purpose for which he had been taken to Dubai. The respondent cannot be held responsible for sending Firoz (A-39) for any criminal activity. Thus, the well- reasoned judgment of the Special Judge does not require interference.
5. We have considered the rival submissions made by learned counsel for the parties and perused the record.
There is no confession by the respondent accused (A-76).
6. Confessional statement of Firoz @ Akram Amani Malik (A-39) revealed that the said respondent was the brother-in-law of Firoz @ Akram Amani Malik (A-39). The said accused Firoz @ Akram Amani Malik (A-39) had been awarded the death sentence in this very case and his appeal is being heard alongwith this case. Respondent (A-76) used to advise the said accused (A-39) to go to Dubai and the said accused also expressed his willingness and desire to go to Dubai in the month of January, 1993. He (A-39) got a passport and went to Dubai with Miyaz. After getting a visa they left the airport. One person named Ayub Bhai took them to a building near Kadar Hotel. There they found another person Nasim who took them to a flat on the 2nd floor. Nasim told him there that he would be going to Pakistan and his purpose for this visit would be explained later.
7. Prakash Khanvilkar (PW-513), deposed about the recovery of hand-grenades from Mohmed Jabir Abdul Latif Mansoor (A-93). However, he does not make any reference so far as the respondent Fazal Rehman Abdul Khan (A-76) is concerned.
8. The Designated Court after appreciating the entire evidence came to the conclusion that there was nothing on record to show that the respondent though facilitated sending Firoz @ Akram Amani Malik (A-39) to Dubai, had any knowledge of the purpose of going to Dubai or Pakistan for the simple reason that Firoz @ Akram Amani Malik (A-39) himself disclosed that he was told in Dubai that he would go to Pakistan and the purpose for going there would be explained to him later on. The confessional statement of A-39 did not reveal the involvement of the respondent in persuading A-39 to undergo weapons training in Pakistan.
9. This Court has laid down parameters for interference against the order of acquittal time and again. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject- matter of scrutiny by the appellate court. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
10. We had been taken through the evidence by Shri Mukul Gupta, learned senior counsel for the appellant, but we do not find any reason to interfere with the cogent reasons given by the Special Judge. The appeal lacks merit and is accordingly dismissed.
