Mubina @ Baya Moosa Bhiwandiwala Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No.1180 of 2007
Petitioner: Mubina @ Baya Moosa Bhiwandiwala
Respondent: State of Maharashtra
Apeal: Criminal Appeal No.1180 of 2007
Judges: P. Sathasivam, B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 15 – Confessional statement – Appellant as per her statement knew Tiger Memon (TM) – Her brother was a close associate of TM – After his death, TM used to give money for household expenditure – In a conspiratorial meeting held at her residence, she did not participate- Only heard word ‘plan’ in the said meeting – Designate Court held her guilty under Section 3(3) of TADA as she had a close association with TM and she knew the purpose of the meeting. Held, there is no evidence to know that appellant was the owner of the flat. She was present in the next room and was preparing tea when meeting was going on. TM gave money not exclusively for her and there is no evidence that she had knowledge of their plans. She is entitled to benefit of doubt. Conviction set aside.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 15 – Confessional statement – Appellant as per her statement knew Tiger Memon (TM) – Her brother was a close associate of TM – After his death, TM used to give money for household expenditure – In a conspiratorial meeting held at her residence, she did not participate- Only heard word ‘plan’ in the said meeting – Designate Court held her guilty under Section 3(3) of TADA as she had a close association with TM and she knew the purpose of the meeting. Held, there is no evidence to know that appellant was the owner of the flat. She was present in the next room and was preparing tea when meeting was going on. TM gave money not exclusively for her and there is no evidence that she had knowledge of their plans. She is entitled to benefit of doubt. Conviction set aside.
Held:
There is no evidence on record to show that the appellant (A- 96) is the actual owner of the flat where the meeting took place. The appellant (A-96) was simply present in the next room when the meeting was held and she was asked to serve tea. Further, it was her brother who was well acquainted with Tiger Memon (AA) and after his death Tiger Memon (AA) simply gave some money to her family for household expenses and that money was not for her own personal/individual expenditure. Moreover, while serving them tea she might have overheard something about a plan that was being formulated by the co-accused, but not being a party to the meeting she could not have possibly known or understood the plan. According to the prosecution case, she had been given air tickets by Tiger Memon (AA) to keep and one of the tickets had been taken by him in the early morning hours of the day of the blasts i.e. 12.3.1993. There is nothing on record to show that the appellant (A-96) knew that the blasts were going to take place on that day, or that she had acquired any knowledge that Tiger Memon (AA) would be absconding from India. Moreover, she was not a participant in any overt act in furtherance of the conspiracy. (Para 150)
Due to the foregoing reasons, the appellant (A-96) is held to be entitled for benefit of doubt. Thus, we allow the appeal and acquit her for the charge under Section 3(3) TADA. The conviction and sentence awarded by the Designated Court are set aside. The appellant is on bail. Her bail bonds stand discharged. (Para 151)
JUDGEMENT:
Judgment (Contd.)
136. This appeal has been preferred against the judgment and order dated 14.6.2007 passed by a Special Judge of the Designated Court under the TADA in Bombay Blast Case No.1 of 1993, by which the appellant has been convicted under Section 3(3) TADA, and a punishment of five years rigorous imprisonment with a fine of Rs. 25,000/-, and in default of payment of fine to suffer further R.I. for 6 months was imposed.
137. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant was charged with being an associate of Tiger Memon (AA), abetting and knowingly facilitating the commission of terrorist acts committed on 12.3.1993. She was further charged with facilitating the holding of conspiratorial meetings on 9th and 10th March, 1993 in her flat in Bandra, wherein the terrorist acts came to be discussed and finalised.
B. After conclusion of the trial, the learned Special Judge convicted A-96 as referred to hereinabove.
Hence, this appeal.
138. Mr. Zafar Sadique, learned counsel for the appellant has submitted that it was her brother who was a close associate of Tiger Memon, and after the death of her brother she was given some money for household expenses by Tiger Memon, and she did not work for him or had any knowledge of her involvement in terrorist activities. Thus, the appeal deserves to be allowed.
139. Mr. Mukul Gupta, learned senior counsel for the State vehemently opposed this appeal by stating that her confession itself reveals that she knew that Tiger Memon was a smuggler. Moreover, the fact that conspiratorial meetings were held in her house demonstrates her knowledge of the conspiracy, and being a party to the same she should have also been convicted of the larger conspiracy. Thus, the appeal is liable to be dismissed.
140. We have considered the rival submissions made by the learned counsel for the parties and perused the records.
141. Evidence against the appellant:
(a) Confessional statement of the appellant Mubina @ Baya Moosa Bhiwandiwala (A-96)
(b) Confessional statement of Asgar Yusuf Mukadam (A-10)
(c) Confessional statement of Abdul Gani Ismail Turk (A-11)
(d) Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)
(e) Confessional statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
(f) Confessional statement of Niyaz Mohmed @ Aslam Iqbal Ahmed Shaikh (A-98)
(g) Confessional statement of Zakir Hussein Noor Mohammed Shaikh (A- 32)
142. Confessional statement of the appellant Mubina @ Baya Moosa Bhiwandiwala (A-96):
The evidence against the appellant (A-96) had been her own confessional statement which revealed that her brother was a close associate of Tiger Memon (AA) and indulged in smuggling activities. Out of that ill-gotten money, he purchased the said flat and other commercial properties and a car. However, subsequently, when he was pursued by the Customs officials on 10.12.1990, he jumped from the said building and died. Subsequently, she had been living in the said flat alongwith her parents and widow of his brother with a minor child. She was unmarried and 22 years of age at that time. She deposed that after the death of her brother, Tiger Memon (AA) had supported her family financially by paying Rs.10,000/- per month for household expenses which had subsequently been enhanced to Rs.20,000/- on being asked by her father. The car purchased by her brother was being driven by the appellant (A-96). Tiger Memon used to keep his own money at her residence and it ranged from Rs. 1 lakh to 5 lakhs. She further deposed that she personally knew Tiger Memon (AA) and had been visiting him at his residence in Mahim. On 8.3.1993, Shafi came to her house and handed her an envelope. On opening the same, she found three passports and two tickets of Tiger Memon (AA). Out of them, one ticket was of Air Emirates Bombay-Dubai-Bombay and second was of Gulf Air Bombay-Abu Dhabi-Bombay. Both the tickets had been purchased through East West Travels and both of them had been for 12.3.1993. The said tickets and passports had been taken by Asgar (A- 10), an associate of Tiger Memon (AA) on 11.3.1993 at 11.00 p.m. from her residence. Samir Ahmed Hingora (A-53), owner of Magnum Videos, sent a sum of Rs.50,000/- to her for household expenses twice. On 9.3.1993, a meeting was held at her residence at 8.00 oclock in the evening which was attended by Tiger Memon (AA) and his associates. Tiger Memon (AA) was directing his men in the bedroom of the house for a period of approximately half an hour and she and her family had been sitting outside. Usman (PW-2), Javed, Bashir and Nashir alongwith 10- 15 other boys came at her residence. She opened the door. They asked for Tiger Memon (AA) and she replied that he was inside. Tiger Memon (AA) spoke to them, in the bedroom. Appellant was asked to prepare 15- 20 cups of tea. After preparing the tea, she knocked the door of the hall; one boy came and took the tea inside. Tiger Memon (AA) and those persons were discussing about the plan. They left at about 12.30 in the night. On the next day on 10.3.1993 at about 9.00 or 9.30 at night, those boys came again to her residence at the instance of Tiger Memon and the appellant (A-96) asked them to wait. Then, Tiger Memon (AA) came and discussed the plan with those boys. Then all of them left her house at about 12.00 oclock at night. The police arrested the appellant after 4-5 days of bomb blasts.
143. Confessional statement of Asgar Yusuf Mukadam (A-10):
He has corroborated the confessional statement of the appellant (A-96) to the extent that he had collected the passports and tickets kept with appellant (A-96) by which Tiger Memon (AA) left for Dubai on 12.3.1993, early in the morning.
144. Confessional statement of Abdul Gani Ismail Turk (A-11):
His confessional statement revealed that on 7th March, 1993 in the evening, he went to accused Imtiyaz for taking the scooter which he sold to him (A-11), then he came to know that Tiger Memon (AA) had come back to Bombay from Dubai and he wanted to meet him at Al- Husseini building. Abdul Gani Ismail Turk (A-11) went there and met Tiger Memon (AA) at his residence. He was there alongwith his parents and brothers. Subsequently, Shafi took the accused (A-11) with him in the Maruti car. Shafi stopped the car and went to make a call asking accused (A-11) to wait at the house of Mubina alias Baya Moosa Bhiwandiwala (A-96). He (A-11) reached at the flat of Mubina, appellant (A-96). After sometime, Tiger Memon (AA) and Shafi came there. Some other boys were also present there. On the next day on 8.3.1993, he (A-11) went to the house of Tiger Memon and after sometime, both of them went to the house of Mubina, appellant (A-96) by the Maruti car of Tiger Memon. Tiger Memon went up to her flat, though, accused (A-11) remained sitting in the car. Shafi came down from her flat and went towards Jogeshwari taking accused (A-11) in a Commander Jeep and returned after one hour. He (A-11) found one bag in the jeep which contained 2 rifles, 4-6 handgrenades and some bullets. Then they came back to the flat of Mubina, appellant (A-96). Tiger Memon and other co-accused came down from her flat at about 11.30-12.00 oclock at night and they left in jeep and Maruti car.
145. Confessional statement of Parvez Nazir Ahmed Shaikh, (A-12):
He deposed that in the second week of February 1993, he alongwith other co-accused brought the contraband smuggled from Dubai to Bombay in a jeep at 11.30 p.m. The jeep was parked at the house of Mubina, appellant (A-96), and he handed over the keys of the jeep to Mubina, appellant (A-96).
146. Confessional statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64):
In his confessional statement, he stated that on 9.3.1993 Tiger Memon took him alongwith other co-accused to the flat of Mubina, appellant (A-96) at Bandra, wherein he met all the persons who got training in Pakistan. Again on 10.3.1993, he was called at the house of appellant (A-96) for a meeting. He corroborated the case of the prosecution that conspiratorial meetings were held at the flat of Mubina (A-96) on 10.3.1993.
147. Confessional statement of Niyaz Mohmed @ Aslam Iqbal Ahmed Shaikh (A-98):
In his confessional statement, he stated that on 8th and 9th March, 1993, he was asked by Usman (PW-2) to be ready and he went alongwith co-accused Irfan Chaugale to a flat at 3rd floor in a building behind Bhabha Hospital in Bandra. Some other persons were there, including Tiger Memon, Javed Chikna, Bashir, Usman, Sardar Khan and Parvez. After sometime, a girl, the appellant (A-96) who was called by Tiger Memon, brought tea and served to all of them.
148. Confessional statement of Zakir Hussein Noor Mohammed Shaikh (A- 32):
In his confessional statement, he stated that on 10.3.1993, on instructions he went to attend the meeting at Bandra flat alongwith Usman (PW-2). Tiger Memon was sitting there directing the group of boys and assigning them different roles.
149. After appreciating the entire evidence on record, the Designated Court came to the conclusion as under:
51). Since the matters from the said confession are so eloquent that hardly any dilation would be necessary about the same. However, the defence having urged that since A-96 was not present in the relevant meeting in which the discussion was made, she cannot be held guilty for commission of any offence. It is urged hence her confession fails to disclose her involvement in commission of offence and as such is liable to be discarded. It is urged that in said event the material in confession of the co-accused revealing that the meeting was held at her house but again not revealing that she was party to the said meeting will not be sufficient to fastening guilt upon her.
52) The aforesaid submissions though apparently appears to be attractive the same does not stand to the reason. Considering matters in entirety in the said confession it is clear that Tiger Memon was also residing in the nearby vicinity. In the said contingencies Tiger Memon holding meeting of such a number of persons at the house of Mubina itself raises a grave doubt about the purpose for which the said meeting was held by him at the said house instead of his own house. Apart from the same, careful consideration of the material in the confession in terms reveal close association developed in between Tiger Memon and A-96. The other material pertaining to keeping tickets of Tiger Memon at her house, Tiger Memon paying money for the expenses himself increasing the said amount upon the say of father of A-96 are the circumstances curiously throwing the light upon the relationship in between them. Even the material in the confession reveals that Tiger, Memon had a talk with his friend after taking him to the bed room in the said house. All the said circumstances are self-eloquent.
53) Furthermore the recital in the confession that after the Tea was taken the said person were discussing about their plan is a recital clearly revealing knowledge of A-96 of the meeting being regarding the plan. Since in cases of conspiracy direct evidence would never be available the said self-eloquent recital is sufficient to infer about A-96 having full knowledge about the purpose for which the said meeting was held by Tiger Memon. Needless to add neither the confession reveals the reason because of which A-96 had allowed. Tiger Memon to take the meeting in her house. Furthermore even a trial, no explanation has been given by A- 96 regarding the said respect. Thus considering the said act committed by A-96 conclusion is inevitable about herself knowing full well the purpose of the said meeting had allowed Tiger Memon to hold the same at her house and that too in spite of his house being not far away from the said place. Thus, the same clearly denotes of A-96 having aided and abetted and assisted a Tiger Memon for having a meeting for chalking out final plans of conspiracy hatch. Thus all the said material is sufficient for holding her guilty for commission of offences under Section 3(3) of TADA.
54) In the aforesaid context the defense submission that A-96 was not alone residing in the said flat or that her father and other members of her family were also residing at the said Flat and as such she cannot be said to be responsible for granting the permission to Tiger Memon for holding meeting in the said flat as the same might have been given by somebody else i.e. her father etc. also does not stand to the reason. Such conclusion is apparent as the material in her confession does not support such a theory and on the contrary the meeting held under nose on the relevant day clearly signifies the same being held with her concurrence. Needless to add that material in the confession also denotes of affairs of the said House being managed by her after the death of her brother.
55) Since the matters in the confession of A-96 or at least the fact of meeting held in her flat being corroborated material in the confession of accused referred during the discussion made earlier, the said aspect will not need any reiteration. Having regard to the same the matters in her confession which is disclosing her involvement, i.e. the admission in commission of the offence under Section 3(3) of TADA will be required to be taken into consideration and thus will be required to be acted upon. As a result of the same, she will be required to be held guilty for commission of the said, offence.
56) However, even accepting the said material in her confession and even the conclusion arrive about her guilt still it will be necessary to say that the said material cannot be said to be sufficient for holding her guilty for commission of offence of an conspiracy for which he is charged with at a trial. The same is obvious that there exists no evidence of herself having committed any act prior to this meeting and even after the said meeting denoting that she was the Member of the conspiracy. The same is obvious as there is clearly paucity of evidence to establish A-96 having committed any other act furthering the object of such conspiracy. Hence she cannot be held liable for being party to the conspiracy, as even the evidence pertaining to the said meeting reveals that she has not participated in the same and merely sent Tea and allowed Tiger Memon to hold meeting at her residence.
57) Thus, taking into consideration the extent and/or severity of act committed by A-96 and the other relevant factors and having regard to the basic principle behind awarding punishment being to eradicate the element of criminality and not to punish individual human being entertaining same, herself being woman accused, herself having faced a long drawn prosecution, role played by her cannot be said to be of a severe nature, the probable reason because of which she had committed the relevant acts, herself being not the sole person who had assisted Tiger Memon in the relevant episode and even from said angle, act committed by her clearly appearing to be on much lower pedestal than such a role of facilitation, assistance played by other co-accused in the case, a minimum sentence prescribed under the law i.e. a sentence of R.I. for 5 years and a fine amount of Rs.25,000/- with suitable addition of RI in default of payment of fine for commission of offence under Section 3(3) of TADA, ordered for A-96 would serve the ends of justice.
150. There is no evidence on record to show that the appellant (A- 96) is the actual owner of the flat where the meeting took place. The appellant (A-96) was simply present in the next room when the meeting was held and she was asked to serve tea. Further, it was her brother who was well acquainted with Tiger Memon (AA) and after his death Tiger Memon (AA) simply gave some money to her family for household expenses and that money was not for her own personal/individual expenditure. Moreover, while serving them tea she might have overheard something about a plan that was being formulated by the co-accused, but not being a party to the meeting she could not have possibly known or understood the plan. According to the prosecution case, she had been given air tickets by Tiger Memon (AA) to keep and one of the tickets had been taken by him in the early morning hours of the day of the blasts i.e. 12.3.1993. There is nothing on record to show that the appellant (A-96) knew that the blasts were going to take place on that day, or that she had acquired any knowledge that Tiger Memon (AA) would be absconding from India. Moreover, she was not a participant in any overt act in furtherance of the conspiracy.
151. Due to the foregoing reasons, the appellant (A-96) is held to be entitled for benefit of doubt. Thus, we allow the appeal and acquit her for the charge under Section 3(3) TADA. The conviction and sentence awarded by the Designated Court are set aside. The appellant is on bail. Her bail bonds stand discharged.
***********
136. This appeal has been preferred against the judgment and order dated 14.6.2007 passed by a Special Judge of the Designated Court under the TADA in Bombay Blast Case No.1 of 1993, by which the appellant has been convicted under Section 3(3) TADA, and a punishment of five years rigorous imprisonment with a fine of Rs. 25,000/-, and in default of payment of fine to suffer further R.I. for 6 months was imposed.
137. Facts and circumstances giving rise to this appeal are that :
A. In addition to the main charge of conspiracy, the appellant was charged with being an associate of Tiger Memon (AA), abetting and knowingly facilitating the commission of terrorist acts committed on 12.3.1993. She was further charged with facilitating the holding of conspiratorial meetings on 9th and 10th March, 1993 in her flat in Bandra, wherein the terrorist acts came to be discussed and finalised.
B. After conclusion of the trial, the learned Special Judge convicted A-96 as referred to hereinabove.
Hence, this appeal.
138. Mr. Zafar Sadique, learned counsel for the appellant has submitted that it was her brother who was a close associate of Tiger Memon, and after the death of her brother she was given some money for household expenses by Tiger Memon, and she did not work for him or had any knowledge of her involvement in terrorist activities. Thus, the appeal deserves to be allowed.
139. Mr. Mukul Gupta, learned senior counsel for the State vehemently opposed this appeal by stating that her confession itself reveals that she knew that Tiger Memon was a smuggler. Moreover, the fact that conspiratorial meetings were held in her house demonstrates her knowledge of the conspiracy, and being a party to the same she should have also been convicted of the larger conspiracy. Thus, the appeal is liable to be dismissed.
140. We have considered the rival submissions made by the learned counsel for the parties and perused the records.
141. Evidence against the appellant:
(a) Confessional statement of the appellant Mubina @ Baya Moosa Bhiwandiwala (A-96)
(b) Confessional statement of Asgar Yusuf Mukadam (A-10)
(c) Confessional statement of Abdul Gani Ismail Turk (A-11)
(d) Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)
(e) Confessional statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
(f) Confessional statement of Niyaz Mohmed @ Aslam Iqbal Ahmed Shaikh (A-98)
(g) Confessional statement of Zakir Hussein Noor Mohammed Shaikh (A- 32)
142. Confessional statement of the appellant Mubina @ Baya Moosa Bhiwandiwala (A-96):
The evidence against the appellant (A-96) had been her own confessional statement which revealed that her brother was a close associate of Tiger Memon (AA) and indulged in smuggling activities. Out of that ill-gotten money, he purchased the said flat and other commercial properties and a car. However, subsequently, when he was pursued by the Customs officials on 10.12.1990, he jumped from the said building and died. Subsequently, she had been living in the said flat alongwith her parents and widow of his brother with a minor child. She was unmarried and 22 years of age at that time. She deposed that after the death of her brother, Tiger Memon (AA) had supported her family financially by paying Rs.10,000/- per month for household expenses which had subsequently been enhanced to Rs.20,000/- on being asked by her father. The car purchased by her brother was being driven by the appellant (A-96). Tiger Memon used to keep his own money at her residence and it ranged from Rs. 1 lakh to 5 lakhs. She further deposed that she personally knew Tiger Memon (AA) and had been visiting him at his residence in Mahim. On 8.3.1993, Shafi came to her house and handed her an envelope. On opening the same, she found three passports and two tickets of Tiger Memon (AA). Out of them, one ticket was of Air Emirates Bombay-Dubai-Bombay and second was of Gulf Air Bombay-Abu Dhabi-Bombay. Both the tickets had been purchased through East West Travels and both of them had been for 12.3.1993. The said tickets and passports had been taken by Asgar (A- 10), an associate of Tiger Memon (AA) on 11.3.1993 at 11.00 p.m. from her residence. Samir Ahmed Hingora (A-53), owner of Magnum Videos, sent a sum of Rs.50,000/- to her for household expenses twice. On 9.3.1993, a meeting was held at her residence at 8.00 oclock in the evening which was attended by Tiger Memon (AA) and his associates. Tiger Memon (AA) was directing his men in the bedroom of the house for a period of approximately half an hour and she and her family had been sitting outside. Usman (PW-2), Javed, Bashir and Nashir alongwith 10- 15 other boys came at her residence. She opened the door. They asked for Tiger Memon (AA) and she replied that he was inside. Tiger Memon (AA) spoke to them, in the bedroom. Appellant was asked to prepare 15- 20 cups of tea. After preparing the tea, she knocked the door of the hall; one boy came and took the tea inside. Tiger Memon (AA) and those persons were discussing about the plan. They left at about 12.30 in the night. On the next day on 10.3.1993 at about 9.00 or 9.30 at night, those boys came again to her residence at the instance of Tiger Memon and the appellant (A-96) asked them to wait. Then, Tiger Memon (AA) came and discussed the plan with those boys. Then all of them left her house at about 12.00 oclock at night. The police arrested the appellant after 4-5 days of bomb blasts.
143. Confessional statement of Asgar Yusuf Mukadam (A-10):
He has corroborated the confessional statement of the appellant (A-96) to the extent that he had collected the passports and tickets kept with appellant (A-96) by which Tiger Memon (AA) left for Dubai on 12.3.1993, early in the morning.
144. Confessional statement of Abdul Gani Ismail Turk (A-11):
His confessional statement revealed that on 7th March, 1993 in the evening, he went to accused Imtiyaz for taking the scooter which he sold to him (A-11), then he came to know that Tiger Memon (AA) had come back to Bombay from Dubai and he wanted to meet him at Al- Husseini building. Abdul Gani Ismail Turk (A-11) went there and met Tiger Memon (AA) at his residence. He was there alongwith his parents and brothers. Subsequently, Shafi took the accused (A-11) with him in the Maruti car. Shafi stopped the car and went to make a call asking accused (A-11) to wait at the house of Mubina alias Baya Moosa Bhiwandiwala (A-96). He (A-11) reached at the flat of Mubina, appellant (A-96). After sometime, Tiger Memon (AA) and Shafi came there. Some other boys were also present there. On the next day on 8.3.1993, he (A-11) went to the house of Tiger Memon and after sometime, both of them went to the house of Mubina, appellant (A-96) by the Maruti car of Tiger Memon. Tiger Memon went up to her flat, though, accused (A-11) remained sitting in the car. Shafi came down from her flat and went towards Jogeshwari taking accused (A-11) in a Commander Jeep and returned after one hour. He (A-11) found one bag in the jeep which contained 2 rifles, 4-6 handgrenades and some bullets. Then they came back to the flat of Mubina, appellant (A-96). Tiger Memon and other co-accused came down from her flat at about 11.30-12.00 oclock at night and they left in jeep and Maruti car.
145. Confessional statement of Parvez Nazir Ahmed Shaikh, (A-12):
He deposed that in the second week of February 1993, he alongwith other co-accused brought the contraband smuggled from Dubai to Bombay in a jeep at 11.30 p.m. The jeep was parked at the house of Mubina, appellant (A-96), and he handed over the keys of the jeep to Mubina, appellant (A-96).
146. Confessional statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64):
In his confessional statement, he stated that on 9.3.1993 Tiger Memon took him alongwith other co-accused to the flat of Mubina, appellant (A-96) at Bandra, wherein he met all the persons who got training in Pakistan. Again on 10.3.1993, he was called at the house of appellant (A-96) for a meeting. He corroborated the case of the prosecution that conspiratorial meetings were held at the flat of Mubina (A-96) on 10.3.1993.
147. Confessional statement of Niyaz Mohmed @ Aslam Iqbal Ahmed Shaikh (A-98):
In his confessional statement, he stated that on 8th and 9th March, 1993, he was asked by Usman (PW-2) to be ready and he went alongwith co-accused Irfan Chaugale to a flat at 3rd floor in a building behind Bhabha Hospital in Bandra. Some other persons were there, including Tiger Memon, Javed Chikna, Bashir, Usman, Sardar Khan and Parvez. After sometime, a girl, the appellant (A-96) who was called by Tiger Memon, brought tea and served to all of them.
148. Confessional statement of Zakir Hussein Noor Mohammed Shaikh (A- 32):
In his confessional statement, he stated that on 10.3.1993, on instructions he went to attend the meeting at Bandra flat alongwith Usman (PW-2). Tiger Memon was sitting there directing the group of boys and assigning them different roles.
149. After appreciating the entire evidence on record, the Designated Court came to the conclusion as under:
51). Since the matters from the said confession are so eloquent that hardly any dilation would be necessary about the same. However, the defence having urged that since A-96 was not present in the relevant meeting in which the discussion was made, she cannot be held guilty for commission of any offence. It is urged hence her confession fails to disclose her involvement in commission of offence and as such is liable to be discarded. It is urged that in said event the material in confession of the co-accused revealing that the meeting was held at her house but again not revealing that she was party to the said meeting will not be sufficient to fastening guilt upon her.
52) The aforesaid submissions though apparently appears to be attractive the same does not stand to the reason. Considering matters in entirety in the said confession it is clear that Tiger Memon was also residing in the nearby vicinity. In the said contingencies Tiger Memon holding meeting of such a number of persons at the house of Mubina itself raises a grave doubt about the purpose for which the said meeting was held by him at the said house instead of his own house. Apart from the same, careful consideration of the material in the confession in terms reveal close association developed in between Tiger Memon and A-96. The other material pertaining to keeping tickets of Tiger Memon at her house, Tiger Memon paying money for the expenses himself increasing the said amount upon the say of father of A-96 are the circumstances curiously throwing the light upon the relationship in between them. Even the material in the confession reveals that Tiger, Memon had a talk with his friend after taking him to the bed room in the said house. All the said circumstances are self-eloquent.
53) Furthermore the recital in the confession that after the Tea was taken the said person were discussing about their plan is a recital clearly revealing knowledge of A-96 of the meeting being regarding the plan. Since in cases of conspiracy direct evidence would never be available the said self-eloquent recital is sufficient to infer about A-96 having full knowledge about the purpose for which the said meeting was held by Tiger Memon. Needless to add neither the confession reveals the reason because of which A-96 had allowed. Tiger Memon to take the meeting in her house. Furthermore even a trial, no explanation has been given by A- 96 regarding the said respect. Thus considering the said act committed by A-96 conclusion is inevitable about herself knowing full well the purpose of the said meeting had allowed Tiger Memon to hold the same at her house and that too in spite of his house being not far away from the said place. Thus, the same clearly denotes of A-96 having aided and abetted and assisted a Tiger Memon for having a meeting for chalking out final plans of conspiracy hatch. Thus all the said material is sufficient for holding her guilty for commission of offences under Section 3(3) of TADA.
54) In the aforesaid context the defense submission that A-96 was not alone residing in the said flat or that her father and other members of her family were also residing at the said Flat and as such she cannot be said to be responsible for granting the permission to Tiger Memon for holding meeting in the said flat as the same might have been given by somebody else i.e. her father etc. also does not stand to the reason. Such conclusion is apparent as the material in her confession does not support such a theory and on the contrary the meeting held under nose on the relevant day clearly signifies the same being held with her concurrence. Needless to add that material in the confession also denotes of affairs of the said House being managed by her after the death of her brother.
55) Since the matters in the confession of A-96 or at least the fact of meeting held in her flat being corroborated material in the confession of accused referred during the discussion made earlier, the said aspect will not need any reiteration. Having regard to the same the matters in her confession which is disclosing her involvement, i.e. the admission in commission of the offence under Section 3(3) of TADA will be required to be taken into consideration and thus will be required to be acted upon. As a result of the same, she will be required to be held guilty for commission of the said, offence.
56) However, even accepting the said material in her confession and even the conclusion arrive about her guilt still it will be necessary to say that the said material cannot be said to be sufficient for holding her guilty for commission of offence of an conspiracy for which he is charged with at a trial. The same is obvious that there exists no evidence of herself having committed any act prior to this meeting and even after the said meeting denoting that she was the Member of the conspiracy. The same is obvious as there is clearly paucity of evidence to establish A-96 having committed any other act furthering the object of such conspiracy. Hence she cannot be held liable for being party to the conspiracy, as even the evidence pertaining to the said meeting reveals that she has not participated in the same and merely sent Tea and allowed Tiger Memon to hold meeting at her residence.
57) Thus, taking into consideration the extent and/or severity of act committed by A-96 and the other relevant factors and having regard to the basic principle behind awarding punishment being to eradicate the element of criminality and not to punish individual human being entertaining same, herself being woman accused, herself having faced a long drawn prosecution, role played by her cannot be said to be of a severe nature, the probable reason because of which she had committed the relevant acts, herself being not the sole person who had assisted Tiger Memon in the relevant episode and even from said angle, act committed by her clearly appearing to be on much lower pedestal than such a role of facilitation, assistance played by other co-accused in the case, a minimum sentence prescribed under the law i.e. a sentence of R.I. for 5 years and a fine amount of Rs.25,000/- with suitable addition of RI in default of payment of fine for commission of offence under Section 3(3) of TADA, ordered for A-96 would serve the ends of justice.
150. There is no evidence on record to show that the appellant (A- 96) is the actual owner of the flat where the meeting took place. The appellant (A-96) was simply present in the next room when the meeting was held and she was asked to serve tea. Further, it was her brother who was well acquainted with Tiger Memon (AA) and after his death Tiger Memon (AA) simply gave some money to her family for household expenses and that money was not for her own personal/individual expenditure. Moreover, while serving them tea she might have overheard something about a plan that was being formulated by the co-accused, but not being a party to the meeting she could not have possibly known or understood the plan. According to the prosecution case, she had been given air tickets by Tiger Memon (AA) to keep and one of the tickets had been taken by him in the early morning hours of the day of the blasts i.e. 12.3.1993. There is nothing on record to show that the appellant (A-96) knew that the blasts were going to take place on that day, or that she had acquired any knowledge that Tiger Memon (AA) would be absconding from India. Moreover, she was not a participant in any overt act in furtherance of the conspiracy.
151. Due to the foregoing reasons, the appellant (A-96) is held to be entitled for benefit of doubt. Thus, we allow the appeal and acquit her for the charge under Section 3(3) TADA. The conviction and sentence awarded by the Designated Court are set aside. The appellant is on bail. Her bail bonds stand discharged.
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