Mohammed Shoeb Mohammed Kasam Ghansar (A-9) Vs. The State of Maharashtra, Through STF,CBI Mumbai
EmailAppeal: Criminal Appeal No.365 of 2008
Petitioner: Mohammed Shoeb Mohammed Kasam Ghansar (A-9)
Respondent: The State of Maharashtra, Through STF,CBI Mumbai
Apeal: Criminal Appeal No.365 of 2008
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, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Conspiracy Bombay blast case Evidence Confessions Accused G, a co-accused, conspirator with others Confession recorded by DCP- Statement showing that he was fully aware of overt acts committed by him Planted bomb in Zaveri Bazar and begged forgiveness from Allah Statement also corroborated by other co-accused in their own confessions viz, AY (A10), AG (A11), PN (A12), `IY` (A15) T (A44) All statements truthful and made voluntarily Safeguards as provided by law complied with. Held that conspiracy and other charges are duly proved. (Para 337-342 & 351)
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Conspiracy Bombay blast case Evidence Confessions Accused G, a co-accused, conspirator with others Confession recorded by DCP- Statement showing that he was fully aware of overt acts committed by him Planted bomb in Zaveri Bazar and begged forgiveness from Allah Statement also corroborated by other co-accused in their own confessions viz, AY (A10), AG (A11), PN (A12), `IY` (A15) T (A44) All statements truthful and made voluntarily Safeguards as provided by law complied with. Held that conspiracy and other charges are duly proved. (Para 337-342 & 351)
Section 3, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Conspiracy Bombay blast case Evidence Confessions Retraction – Statement of accused G Statement voluntary and truthful Later, statement retracted Even other co-accused retracted. Held that retractions by other co-accused have been discarded and hence conclusions in those cases apply to this accused also. (Para 343)
Section 3,5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 Conspiracy Bombay blast case Evidence Accused G Involvement of Apart from confessional statement, evidence of other witnesses PW saw him parking scooter in Zaveri Bazar and identified him Said PW was himself injured Accused identified by another witness Second witness failed to identify him in court TIP conducted by SEM His disclosure led to recovery of keys of scooter from the place he had thrown them – Also got recovered passport and driving license Evidence of purchase of scooter by absconder accused through various persons Recoveries of various items from place of blast FSL report confirmed presence of RDX Certain injured witnesses also supported. Held that all charges are proved against accused.
Held:
Held
The appellant (A-9) parked the scooter laden with explosives at Zaveri Bazaar. PW-29 was also injured in the said blast and thereafter, he went to his house. The police had cordoned off the area. On the sixth day after the blasts, PW-29 came to the market and informed the police that he could identify the person who had parked the scooter at Zaveri Bazaar. PW-29 actually identified the appellant in the Test Identification Parade conducted on 25.03.1993 and 13.05.1993 as the person who parked the scooter at Zaveri Bazaar. (Para 344.1 )
The appellant (A-9) parked the scooter laden with explosives at Zaveri Bazaar. PW-29 was also injured in the said blast and thereafter, he went to his house. The police had cordoned off the area. On the sixth day after the blasts, PW-29 came to the market and informed the police that he could identify the person who had parked the scooter at Zaveri Bazaar. PW-29 actually identified the appellant in the Test Identification Parade conducted on 25.03.1993 and 13.05.1993 as the person who parked the scooter at Zaveri Bazaar. (Para 344.1 )
Learned counsel contended on behalf of the appellant (A-9) that the deposition of witness should be discarded since PW-36 failed to identify the appellant in the court when he was given opportunity twice. The prosecution submits that non-identification of A-9 in the Court would not make the deposition of PW-36 unreliable as he did identify the appellant (A-9) in the identification parade held on 13.05.1993. The identification parade took place shortly after the blasts but the identification in court took place only on 12.01.1996, which is almost after three years, thus it is possible that due to passage of time PW-36 was unable to identify the appellant before the court. The identification parade dated 25.03.1993 was conducted at Sacred Hearts High School by Ram S. Bhosale (PW-460), who conducted the parade in compliance with the provisions of the Code. PW-460 also recognized Exh.1471, i.e., memorandum panchnama prepared during the parade. PW-460 further stated that no police official was present in the parade room at the time of the parade and that the appellant (A-9) was brought into the parade room wearing a cover (chadar) so as not to reveal his identity. (Para 344.2 )
Special Executive Magistrate (PW-469) conducted the identification parade in respect of A-9. Exh. 1510 is the memorandum of the TIP dated 13.05.1993. (Para 344.3 )
The appellant (A-9) had parked the scooter at Zaveri Bazaar on 12.03.1993 and threw the keys in the gutter after parking the same. The prosecution submitted that the appellant further led the police party to recover his passport and driving licence. (Para 345.2)
PW-51 should not be relied upon since the gutter from where the keys were recovered had a manhole, and therefore, the investigating agency has planted the keys. To this, the prosecution pointed out that PW-51 is a panch witness and has identified the appellant as the person who offered to take the police party to the place where the keys of the scooter had been thrown by him and were infact recovered from the said gutter after duly opening the manhole. It is further pointed out that PW-51 withstood the rigorous cross-examination and is a credible witness. (Para 346)
The prosecution has also established the damage caused to various properties due to the bomb blast at Zaveri Bazaar from the panchnama Exh. No. 1908 as also by the deposition of PW-554. It also stands established that the damage was due to the explosion caused with the help of RDX explosives. (Para 350.4)
In view of the above said confessional statement of the appellant (A-9), the confessional statements of other co-accused persons as also the eye-witnesses PWs-29 and 36, along with other witnesses duly examined by the prosecution, the contentions raised by learned counsel for the appellant regarding his participation in the conspiracy, landing, conspiratorial meetings as well as the filling of RDX during the intervening night, are meritless as the charges framed against the appellant (A-9) have been duly proved. (Para 351)
JUDGEMENT:
Judgment (Contd.)
332. Ms. Farhana Shah, learned counsel appeared for the appellant (A-9) and Mr. Gopal Subramanium, learned senior counsel, duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel for the respondent.
333. The present appeal is directed against the final judgment and order of conviction and sentence dated 14.09.2006 and 19.07.2007 respectively, whereby the appellant has been convicted and sentenced to death by the Designated Court under TADA for the Bombay Bomb Blasts Case, Greater Bombay in B.B.C. No. 1/1993.
Charges:
334. A common charge of conspiracy was framed against all the co- conspirators including the appellant (A-9). The relevant portion of the charge is reproduced hereunder:-
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UA.E.) 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, handgrenades and other explosives 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, 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, handgrenades 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 Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of Indian Penal Code read with Sections 3(2)(i)(ii), 3(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.
334.1 In addition to the above said charge of conspiracy, the appellant (A-9) has also been charged for commission of the following offences:
At head secondly; the appellant (A-9) committed an offence punishable under Section 3(3) of TADA by doing the following overt acts:
i) Participated in landing of arms and explosives at Shekhadi Coast, Raigad District along with co-conspirators on the 3rd and 7th of February, 1993;
ii) facilitated the escape of Tiger Memon (AA) by fetching his ticket and passport from the house of Mobina (A-96) and by obtaining his boarding pass on the morning of 12.03.1993, at Sahar Airport; and
iii) actively participated in preparation of vehicle bombs in the night intervening 11th/12th March, 1993 at Al-Hussaini Building.
At head thirdly; on 12.03.1993, the appellant (A-9), parked a scooter laden with explosives and fitted with a time device detonator in Zaveri Bazaar, which exploded killing 17 persons, injuring 57 persons and causing loss of property to the tune of Rs.1.20 crores and thereby committed an offence under Section 3(2)(i)(ii) of TADA.
At head fourthly; for the aforesaid act mentioned in charge thirdly, the appellant (A-9) committed an offence punishable under Section 302 IPC.
At head fifthly; for the aforesaid act mentioned in charge thirdly, the appellant (A-9), committed an offence punishable under Section 307 IPC by injuring 57 persons.
At head sixthly; the appellant (A-9), by causing the aforesaid explosion which resulted in grievous hurt to 9 persons committed an offence punishable under Section 326 IPC.
At head seventhly; the appellant (A-9), by causing the aforesaid explosion and voluntarily causing hurt to 48 persons committed an offence punishable under Section 324 IPC.
At head eighthly; the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs. 1.2 crores committed an offence punishable under Section 435 IPC.
At head ninthly; the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs. 1.2 crores committed an offence punishable under Section 436 IPC.
At head tenthly; the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.
At head eleventhly; the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 4(b) of the Explosive Substances Act, 1908.
At head twelfthly; the appellant (A-9), in pursuance of the conspiracy and in contravention of rules made under Section 5 of the Explosives Act, 1884 without licence having possessed and used RDX, committed an offence punishable under Section 9-B (1)(b) of the said Act.
At head thirteenthly; the appellant (A-9), in pursuance of the said conspiracy, on 12.03.1993, in the afternoon, having abetted and knowingly facilitated terrorist act i.e. the explosion at Centaur Hotel Juhu, Centaur Hotel at Airport and Hotel Sea Rock at Bandra committed by the co-conspirator i.e. Mohammed Mushtaq Moosa Tarani (A-44), Parvez Nazir Ahmed Shaikh (A-12) and Anwar Theba (AA) by planting explosive laden suitcases in the rooms of the said hotels respectively and yourself by accompanying them and A-10 in a Maruti Van bearing No. MFC-1972 on their way for planting the said suitcases in the said hotels with intent to commit the terrorist act, committed an offence punishable under Section 3(3) of TADA.
At head fourteenthly; the appellant (A-9), for the aforesaid act mentioned in charge thirteenthly, committed an offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.
335. The Designated Judge found the appellant (A-9) guilty on all the aforesaid charges except the charge of participating in landing. The appellant (A-9) has been convicted and sentenced for the above said charges as follows:
Conviction and Sentence:
(i) The appellant was found guilty for the offence of conspiracy for commission of such acts as found proved from charge firstly framed at trial and punishable under Section 3(3) of TADA and Section 120-B of IPC read with the offences mentioned in the said charge and on the said count the appellant has been sentenced to suffer RI for life along with a fine of Rs.25,000/-.(charge firstly)
(ii) The appellant has been sentenced to RI for 5 years along with a fine of Rs. 25,000/- for the offence punishable under Section 3(3) of TADA. (charge secondly)
(iii) The appellant has been sentenced to death along with a fine of Rs.25,000/- for the offence punishable under Section 3(2)(i) of TADA. (charge thirdly)
(iv) The appellant has been sentenced to death along with a fine of Rs 25,000/- for the offence punishable under Section 302 IPC. (charge fourthly)
(v) The appellant has been sentenced to RI for life along with a fine of Rs. 50,000/- for the offence punishable under Section 307 IPC. (charge fifthly)
(vi) The appellant has been sentenced to RI for 10 years along with a fine of Rs. 50,000/- for the offence punishable under Section 326 IPC. (charge sixthly)
(vii) The appellant has been sentenced to RI for 3 years for the offence punishable under Section 324 IPC. (charge seventhly)
(viii) The appellant has been sentenced to RI for 7 years along with a fine of Rs. 50,000/- for the offence punishable under Section 435 IPC. (charge eighthly)
(ix) The appellant has been sentenced to RI for 7 years along with a fine of Rs. 50,000/- for the offence punishable under Section 436 IPC. (charge ninthly)
(x) The appellant has been sentenced to RI for 10 years along with a fine of Rs. 25,000/- for the offence punishable under Section 3 of the Explosive Substances Act, 1908. (charge tenthly)
(xi) The appellant has been sentenced to RI for 7 years along with a fine of Rs 25,000/- for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908. (charge eleventhly)
(xii) The appellant has been sentenced to RI for 2 years for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. (charge twelfthly)
(xiii) The appellant has been sentenced to RI for 7 years along with a fine of Rs. 25,000/- for the offence punishable under Section 3(3) of TADA. (charge thirteenthly)
(xiv) The appellant has been sentenced to RI for 5 years along with a fine of Rs 25,000/- for the offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fourteenthly)
Evidence:
336. The evidence against the appellant is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimonies of prosecution witnesses; and
(iv) documentary evidence on record.
Conspiracy
337. As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer to the same once again.
337.1 Confessional Statement of the appellant – Mohammed Shoeb Mohammed Kasam Ghansar (A-9)
338. Confessional statement of the appellant (A-9) under Section 15 of TADA has been recorded on 19.04.1993 and 22.04.1993, by Shri P.K. Jain, the then DCP, Zone X, Bombay. The following facts emerge from the said confessional statement:
(i) In the night of 11.03.1993, on being asked by Asgar Yusuf Mukadam (A-10), the appellant went to Sahar Airport along with him and got a boarding card issued for Tiger Memon.
(ii) The appellant (A-9) asked A-10 that ‘what to do if anyone catches me, at this, A-10 answered to tell that it (boarding card) belongs to my brother.
(iii) Tiger Memon left India in the morning of 12.03.1993, at 4 a.m., and the appellant (A-9) and A-10 saw him leaving the Airport for Dubai.
(iv) The appellant (A-9) was present at the Al-Hussaini building on the night of 11.03.1993 after dropping Tiger Memon at the Airport, and was also present when RDX was being filled into the vehicles by other co-accused persons including Abdul Gani Ismail Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12), Mohd. Shafi (AA) and Anwar Theba (AA).
(v) The appellant (A-9), along with A-10 and A-12, disposed of six big plastic bags in a wastage van of BMC at Bandra Reclamation Road. These bags were handed over to them by Anwar Theba (AA) at the Al-Hussaini Building.
(vi) On 12.03.1993, the appellant (A-9), accompanied A-10 and went to the residence of A-12 in order to pick him up and, thereafter, they went to the Al-Hussaini Building in a Maruti Van.
(vii) 3 VIP Bags were collected by A-12 and A-10 from the garage at the Al-Hussaini building and then they along with the appellant (A-9) went to the residence of Anwar Theba (AA) to pick him up.
(viii) On 12.03.1993, the appellant (A-9) was present in the Van at the time of insertion of timer pencil detonators in the black chemical (RDX) kept in the 3 VIP suit cases by Anwar Theba (AA).
(ix) On 12.03.1993, the appellant (A-9) was also present with A-10 in the van used for dropping the co-accused, namely, A-12, A-44 and Anwar Theba (AA) who went for planting bombs in Hotel Sea Rock, Hotel Centaur Juhu and Hotel Centaur Airport respectively.
(x) The appellant (A-9), thereafter, returned to the Al-Hussaini building with A-10. A-12, A-44 and Anwar Theba (AA) also returned to the said building after planting the bombs at the targets which exploded later. He noticed that three new scooters were parked at Al-Hussaini compound. He was present when Mustaq (A-44) left with one of the new scooters.
(xi) On the very same day, i.e., 12.03.1993, on the instruction of A-10, the appellant (A-9) planted a scooter laden with RDX in front of a jewellery shop at Zaveri Bazaar as per the instructions of A-10. Anwar Theba (AA) had inserted timer pencil detonators in the black chemical (RDX) filled in dicky of the scooter. The appellant (A-9) had the knowledge that the scooter was carrying bomb as told to him by A-10.
(xii) After planting the scooter laden with RDX, the appellant (A-9) went to a Masjid and begged for forgiveness for his sins. He also threw the keys of the scooter in a drain near Bus Stop No. 4 at Mohd. Ali Road.
339. From a perusal of the entire confession, it is established that the appellant was fully aware and conscious of the overt acts committed by him. The above stated facts are established from the admission of his guilt that after planting the bomb at Zaveri Bazaar, he begged for forgiveness for his sins from Allah (the Almighty God) and that even at the time of getting the boarding pass of Tiger Memon, he was conscious and cautious that he was facilitating, aiding and abetting a terrorist in fleeing from the country, and accordingly, the appellant enquired from A-10 at the Airport as to what will happen if anyone catches him. The guilt of the appellant (A-9) is proved from his confession and it is established that he knew that his actions were wrong and illegal. The appellant consciously joined the conspiracy and committed overt acts in furtherance of the conspiracy. He was well aware of the consequences of his actions and the actions of other co-conspirators.
Confessional Statements of co-accused:
340. Apart from his own confession, the involvement of the appellant (A-9) has also been disclosed in the confessional statements of the following co- accused. The legality and acceptability of the confessions of the co- accused has been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant are summarized hereinbelow:
Confessional Statement of Asgar Yusuf Mukadam (A-10)
340.1 Confessional statement of A-10 under Section 15 of TADA has been recorded on 20.04.1993 and 23.04.1993 (18:00 hrs.), by Shri K.L. Bishnoi, the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-9):
(i) In the night of 11.03.1993, the appellant booked the luggage of Tiger Memon and obtained his boarding card at the Airport for his departure to Dubai.
(ii) The appellant (A-9), accompanied by A-10 and A-12, disposed of the plastic bags in a wastage van of BMC which contained the empty boxes of explosives.
(iii) The appellant (A-9), accompanied by A-10 and A-12, picked up three VIP bags loaded with explosives from the garage at the Al-Hussaini building and took them to the residence of Anwar Theba (AA) where Anwar fitted the detonators in these suitcases and thereafter, the bags were taken away by A-12, A-44 and Anwar Theba (AA) to Hotel Sea Rock, Hotel Centaur Juhu and Hotel Centaur Airport respectively.
(iv) The appellant (A-9), on being asked by A-10, drove the scooter laden with explosives on the instructions of Anwar Theba (AA) and parked it at a crowded place in Zaveri Bazaar which later exploded killing 17 persons and injuring 57 others.
Confessional Statement of Abdul Gani Ismail Turk (A-11)
340.2 Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Shri P.K. Jain, the then DCP, Zone III, Bombay. A-11, in his confession, has stated that the appellant (A-9) was present at Al-Hussaini Building in the night of 11.03.1993 along with other co-accused, namely, Bashir Ahmed Usman Gani Khairulla (A-13), Parvez Nazir Ahmed Shaikh (A-12), Md. Shafi, Anwar Theba (AA), Javed Chikna (AA) and he filled the chemical (black soap) in the vehicles which were to be planted as bombs. He further stated as follows:
..After sometime Shafi, Anwar, Javed Chikna, Bashir, Parvez, Shoeb and 10/12 boys assembled there. All people came in the garage of Al-Hussaini Building and all of them filled chemical @ black soap in a number of vehicles.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
340.3 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 and 21.04.1993 (06.50 hrs), by Shri P.K. Jain, the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-9):
(i) The appellant (A-9) was present at the Al-Hussaini building on the night of 11.03.1993 along with other co-conspirators when the work of filling the black chemical (RDX) into the vehicles to be planted as bombs in Bombay was being done. The said black chemical was brought from Shekhadi which was landed on 03.02.1993.
(ii) The chemical was packed in cardboard boxes and pieces of iron were also added to it.
(iii) In the morning of 12.03.1993, on the instructions of Anwar Theba (AA), the appellant (A-9), along with A-10 and A-12, threw 5-6 plastic bags in a wastage van of BMC at Bandra which contained the empty cardboard boxes of the explosives.
(iv) A-12 further stated as follows:
And then at about 10.30 o clock, Asgar came back to my house with Shoaib in the same red coloured van and we three came at Al- Hussaini. From there, we reached to the house of Anwar taking the three Suit cases (big briefcase) which were kept in the garage, by Maruti van, where we met Anwar and Mushtaq whose hair were curly. They both came and sat in the car, before starting the car Anwar opened the bag and pierced the article just like pencil into the chemical and closed the bags.
(v) The appellant (A-9), along with A-10, came to the house of A-12 on 13.03.1993 and discussed about the blasts that had occurred on 12.03.1993.
Confessional Statement of Imtiyaz Yunusmiyan Ghavate (A-15)
340.4 Confessional statement of A-15 under Section 15 of TADA has been recorded on 07.05.1993 and 09.05.1993 (13.30 hrs.), by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following facts emerge from the confessional statement of A-15:
(i) The appellant (A-9) was seated in the maroon coloured Maruti Van along with A-10 and A-12 on 12.03.1993 and all of them drove to the house of Anwar Theba (AA) to collect the three suitcases.
(ii) On 12.03.1993, A-9, along with A-10, came to the Al-Hussaini Building in a Maruti Van.
(iii) In the presence of the appellant (A-9), Anwar Theba (AA) inserted timer pencil detonators in the dicky of scooters laden with explosives which were later planted as bombs.
(iv) The appellant drove a scooter laden with explosives and fitted with pencil detonators on 12.03.1993.
Confessional Statement of Mohd. Mushtaq Moosa Tarani (A-44)
340.5 Confessional statement of A-44 under Section 15 of TADA has been recorded on 26.05.1993 and 22.05.1993 (10.00 hrs.), by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confessional statement, he stated that on 12.03.1993, A-9 and A-15 came to the residence of Anwar Theba (AA) in a Maroon coloured car driven by A-10.
341. The aforesaid confessional statements of co-accused persons, viz., A-10, A-11, A-12, A-15 and A-44 duly corroborate the confessional statement of A-9 in all material aspects. From the above, it is established that:
(i) The appellant (A-9) was actively involved in the conspiracy;
(ii) The appellant was present at the Al-Hussaini building in the night of 11.03.1993 and filled RDX in vehicles;
(iii) The appellant went to various places with A-10 and A-12 and also picked up three suitcases filled with RDX from the garage of the Al-Hussaini building in which detonators were inserted by Anwar Theba (AA) in order to plant the same at various places in the city.
(iv) The appellant was traveling in the car in which A-10, A-12, A-44 and Anwar Theba (AA) were also present.
(v) The appellant participated in various conspiratorial acts like aiding, abetting and in fleeing of Tiger Memon out of the country.
(vi) The appellant was fully aware that the aforementioned accused persons were carrying suitcase bombs for planting the same at Hotel Sea Rock, Hotel Centaur, Juhu and at Hotel Centaur, Airport.
(vii) The appellant parked the scooter at the junction of Sheikh Memon Street and Mirza Street at Zaveri Bazaar which exploded at about 03:05 p.m. killing 17 persons and injuring 57 others;
(viii) After parking the scooter, the appellant (A-9) threw the keys of the scooter into a gutter to avoid detection and went to a mosque to beg forgiveness for his sins.
342. It is also clear that the confessions made by co-accused persons are truthful and voluntary and were made without any coercion. All safeguards enumerated under Section 15 of TADA and the rules framed thereunder have been duly complied with while recording the confessions of the appellants.
Retraction Statements:
343. Ms. Farhana Shah, learned counsel for the appellant (A-9) contended that the confessional statement of the appellant as well as of co-accused persons relied upon by the prosecution against the appellant (A-9) were retracted subsequently, and therefore, it is not safe to base the conviction on the said confessional statements under Section 15 of TADA. Since the very same objection raised in the connected appeals was considered and rejected, we are not once again repeating the same. The said conclusion is applicable to this appeal also.
Depositions of Prosecution Witnesses:
344. The prosecution has relied upon the evidence of several prosecution witnesses to establish the involvement of the appellant (A-9) in the conspiracy. The relevant facts emerge from the deposition of witnesses incriminating the appellant have been enumerated below:
Eye-witnesses:
Deposition of Badrinath Bishansingh Sharma (PW-29)
(i) PW-29 is a hawker at Zaveri Bazaar. He is an eye-witness to the blast. He testified that on 12.03.1993, he saw a person trying to park a scooter in front of the shop of Narayandas Jewellers at Zaveri Bazaar which fell down. PW-29 offered to help him in lifting the scooter but the appellant (A-9) refused to take any help.
(ii) He remembered the colour of the scooter as grey and noted its number on a cigarette pack. The said packet was handed over to the police on 18.03.1993 which was seized by seizure Panchnama Exh. No. 1878 proved by Nisar Ahmed Kankarbhai Shaikh (PW-550). PW-29 also identified the said cigarette packet.
(iii) He also described about the site of the blast and stated that several persons were killed and injured in the blast including himself who got injured in his right leg.
(v) PW-29 identified the appellant (A-9) in the identification parade held at Sacred Hearts School, Worli on 25.03.1993 as the person who parked the said scooter on 12.03.1993 at Zaveri Bazaar.
(vi) PW-29 again identified the appellant (A-9) on 13.05.1993 in the identification parade held at the office of CID in Crawford Market.
344.1 A perusal of the deposition establishes the fact that the appellant (A-9) parked the scooter laden with explosives at Zaveri Bazaar. Ms. Farhana Shah, learned counsel for the appellant (A-9) contended that PW-29 is an unreliable witness and his deposition should be discarded since he did not disclose the number of the scooter or inform anyone until he had seen the appellant even after five days of the blasts on 12.03.1993. It is relevant to point out that PW-29 was also injured in the said blast and thereafter, he went to his house. The police had cordoned off the area. On the sixth day after the blasts, PW-29 came to the market and informed the police that he could identify the person who had parked the scooter at Zaveri Bazaar. PW-29 actually identified the appellant in the Test Identification Parade conducted on 25.03.1993 and 13.05.1993 as the person who parked the scooter at Zaveri Bazaar.
Deposition of Amit Champalal Acharya (PW-36)
(i) PW-36, who is an Estate Agent, is an eyewitness to the incident.
(ii) When he was standing in front of the shop of Narayandas Jewellers on the fateful day, a scooterist (A-9), lost his balance while parking his scooter in front of the shop and fell down. One passerby tried to help him but he refused angrily.
(iii) He further testified that the scooterist (A-9) left hurriedly after parking the scooter. This further shows that he was aware that there was a bomb inside the scooter which could explode anytime.
(iv) He identified the appellant (A-9) in the identification parade held on 13.05.1993 at the office of CID in Crawford Market.
344.2 Ms. Farhana Shah, learned counsel contended on behalf of the appellant (A-9) that the deposition of this witness should be discarded since PW-36 failed to identify the appellant in the court when he was given opportunity twice. The prosecution submits that non-identification of A-9 in the Court would not make the deposition of PW-36 unreliable as he did identify the appellant (A-9) in the identification parade held on 13.05.1993. The identification parade took place shortly after the blasts but the identification in court took place only on 12.01.1996, which is almost after three years, thus it is possible that due to passage of time PW-36 was unable to identify the appellant before the court. The prosecution further submits that this does not impeach the deposition made by PW-36 since his evidence is sufficiently corroborated by the deposition of PW-29 in all material aspects. The prosecution has brought to our notice that the identification parade dated 25.03.1993 was conducted at Sacred Hearts High School by Ram S. Bhosale (PW-460), who conducted the parade in compliance with the provisions of the Code. PW-460 also recognized Exh.1471, i.e., memorandum panchnama prepared during the parade. PW-460 further stated that no police official was present in the parade room at the time of the parade and that the appellant (A-9) was brought into the parade room wearing a cover (chadar) so as not to reveal his identity.
Deposition of Moreshwar Gopal Thakur (PW-469)
344.3 Special Executive Magistrate (PW-469) conducted the identification parade in respect of A-9. Exh. 1510 is the memorandum of the TIP dated 13.05.1993. The following information is available in the said memorandum:-
(i) TIP memorandum records that a TIP was conducted by SEM Shri Thakur (PW-460) on 13.05.1993.
(ii) The first witness PW-29 identified the appellant as the person who parked the scooter at Zaveri Bazaar on 12.03.1993.
(iii) The second witness PW-36 also identified the appellant as the person who parked the scooter at Zaveri Bazaar on 12.03.1993.
Evidence with regard to recovery of the keys of the Scooter:
Deposition of Narsingh Tukaram Sherkhan (PW-556)
345. PW-556, a police officer, recorded the Disclosure Statement made by the appellant on 21.03.1993 to the following effect:
The appellant (A-9) said to the officer:
Come with me, I will show you the place, where I had thrown the keys of the scooter, after I parked the said Bajaj Scooter laden with explosives
345.1 The said statement was recorded vide Disclosure memo Exh.199 in the presence of Panch Witnesses. Pursuant to the said disclosure, the appellant (A-9) led the police party and the same was recorded in the Panchnama (Exh. 200) to the following effect:
Upon making the statement by the accused in pursuance of the aforesaid panchnama, we the panchas, Police party and the accused Mohammed Shoeb Mohammed Kasam Ghansar, Muslim, aged 30 years sat in the police jeep Number MH-01-M-364 and as per the instruction of the accused, the jeep Driver of P. N. 1938 Mahim Police Station drove the jeep by L. J. Road, Tilak Bridge, Dadar T.T., Ambedkar Road, Ibrahim Rahimatulla Road, Bhendi Bazar and after the jeep reached at Johar chowk via Mohammed Ali Road the accused asked the Jeep Driver to halt the vehicle (jeep) and thereupon the jeep driver halted the jeep. Thereafter the accused person, we the panchas and the police party got down from the jeep. Thereafter, as per the instruction of the accused, we the panchas, police party crossed the Mohammed Ali Road and came to the open space in front of the office of `Time Travel & Tour` on the Western side foot path and on coming at the said place, pointed at a gutter on Mohammed Ali Road, situated on the opposite side of the `Time Travel & Tour` and the accused also pointed that the key was thrown therein. The said gutter is at a distance of 10 feet from the said office. On the said gutter there are two cement lids and below the same there is a cement grille. In the presence of us, the panchas, distance was measured from the said gutter which distance from the Electric pole MHL 53 is 12 feet. The accused push aside the cement lid on the said gutter and dipped his hand in the said gutter and removed a below described key from the silt of the gutter when the police in the presence of us, the panchas, observed the key removed by the accused, the description of the said key is as follows.
There are two keys in one steel ring and on one side of both the said keys, `Bajaj` has been inscribed in English and below the same `2-112` has been inscribed and on the another side the letters K. V. P. has been inscribed in English and the same were smeared with the earth.
345.2 It is brought to our notice by the prosecution that these were the keys of the scooter used in the blast at Zaveri Bazaar and this recovery, therefore, also established the fact that the appellant (A-9) had parked the scooter at Zaveri Bazaar on 12.03.1993 and threw the keys in the gutter after parking the same. The prosecution submitted that the appellant further led the police party to recover his passport and driving licence.
Deposition of Kamalakar Kashinath Deo (PW-51)
345.3 The evidence of PW-556 is further corroborated with the evidence of panch witness Kamalakar Kashinath Deo (PW-51) wherein he stated that the appellant (A-9) had made a voluntary statement in his presence on 21.03.1993 and disclosed the location of the keys of the scooter.
346. It has been contended on behalf of the appellant that the deposition of PW-51 should not be relied upon since the gutter from where the keys were recovered had a manhole, and therefore, the investigating agency has planted the keys. To this, the prosecution pointed out that PW-51 is a panch witness and has identified the appellant as the person who offered to take the police party to the place where the keys of the scooter had been thrown by him and were in-fact recovered from the said gutter after duly opening the manhole. It is further pointed out that PW-51 withstood the rigorous cross-examination and is a credible witness.
347. It has also been contended on behalf of the appellant that the evidence of PW-556 is unreliable due to various contradictions. It is pointed out by the prosecution that there is no contradiction in the deposition of PW-556 and on going through the same, we feel that the contradictions pointed out on behalf of the appellant (A-9) were minor contradictions and they do not go to the root of the matter so as to discredit the testimony of the witness.
Evidence with regard to purchase of scooter:
348. The prosecution pointed out that the scooter which was planted by the appellant (A-9) along with two other scooters, was purchased by Munaf Halari (AA), who was a close friend of Tiger Memon. The said purchase was done in the following manner:
(i) Munaf Halari approached Abdul Sattar (PW-82) for the purchase of these scooters under an assumed name.
(ii) PW-82 took Munaf Halari to Govind Baria (PW-452) and PW-452 in-turn directed them to Asgar Ali Masalewala (PW-299).
(iii) Munaf Halari paid an amount of Rs. 70,000/- in cash to PW-299 and took the delivery of two Bajaj scooters on 10.03.1993, and the 3rd scooter was delivered to Munaf Halari on the following day.
(iv) PW-299 is a sub-agent of PW-298 who in-turn had purchased the scooters from M/s. Mohan Automobiles as deposed by Shriram Jitram Vasan (PW-81).
(v) PW-81 stated that he purchased the scooter from Ajit Vanjari (PW-651) of M/s. Vasan Automobiles.
Deposition of Sayeed Abdul Sattar (PW-82)
348.1 PW-82, who was an employee of Munaf Halari (AA), stated that two new scooters were purchased on 11.03.1993 from the garage of PW-299 in Chor Bazar, Bombay and one of them was of blue color. The delivery of the third scooter was given on the next day. He identified two out of the three scooters purchased, in court.
Deposition of Govind Bechan Baria (PW-452)
(i) PW-452 worked at a petrol pump where Munaf Halari used to park his vehicle and that is how he knew Munaf Halari.
(ii) PW-452 deposed that Munaf Halari, along with two other persons, approached him to purchase new scooters on 10.03.1993 and that the witness referred them to Asgar Ali Masalewala (PW-299).
Deposition of Asgar Ali Tahir Ali Masalewala (PW-299)
(i) PW 299 carried on the business of sale/purchase of scooters.
(ii) On 10.03.1993, Akhtar came to PW-299 with a request to purchase scooters. PW-299 obtained the delivery of scooters from a dealer, viz., Nisha Sales and gave the scooters to Akhtar and his two companions.
(iii) The request for purchase of a third scooter was made on 10.03.1993. On 11.03.1993, he obtained the third scooter from the abovesaid dealer and passed it on to Akhtar and his two companions.
Deposition of Shriram Jitram Vasan (PW-81)
(i) PW-81 is a scooter sub-dealer (he used to purchase scooters from Vasan Auto and sell the same to customers) and prepares scooter purchase challans in the name of Mohan Auto.
(ii) PW-81 sold 22 scooters to Nisha Sales in early days of 1993 three of which were of stone, blue and cosmic colour respectively.
(iii) PW-81 identified the remaining two of the three scooters sold to Nisha Sales in Court.
Deposition of Ajit Vitthalrao Vanjari (PW-651)
(i) PW-651 was an employee at Vasan Auto.
(ii) He recognized the challans issued in respect of purchase of Bajaj Scooters for delivery to M/s Mohan Auto in 1993.
348.1 The prosecution pointed out that the above depositions and the documents clearly establish the chain of purchase of scooters used in the blasts on 12.03.1993.
Investigation, Recoveries and FSL Reports:
349. The place of incident, i.e., where the blast took place at Zaveri Bazaar was inspected by Narayan Yedu Rajguru (PW-554) vide panchnama Exh. 1908. The panchnama described the effect of the explosion and vide this panchnama debris and other articles were seized by the I.O. from the place of occurrence. PW-554 also took samples from the place of occurrence in the presence of FSL Experts vide panchnama Exhibit 1909.
Deposition of Narayan Yedu Rajguru (PW-554)
349.1 In his deposition dated 29.12.1999, he deposed that:
(i) He reached the site within 15 minutes of the blast.
(ii) He prepared a panchnama Exh. 1908 in the presence of panch witnesses and seized the articles/blast debris etc.
iii) He also proved this panchnama in court.
(iv) He deposed that the Forensic expert had also collected the samples from the blast site on 13.03.1993 and a panchnama (Exh. 1909) was prepared in the presence of panch witnesses.
(v) The panchnama was proved by the witness.
(vi) The said panchnama records the burnt scooter at the blast site.
349.2 The seized articles were sent to the FSL for examination vide Exh. Nos. 1910 and 1911. The FSL Reports pertaining to the examination of these samples are Exh. Nos. 1883, 1884 and 1885 which show the presence of residual high explosive RDX in the samples forwarded for examination.
Evidence with regard to Injured Victims and the Relatives of the Deceased:
350. Nisar Ahmed Kankarbhai Shaikh (PW-550) has proved the deaths and injuries caused to various persons due to the said explosion. The following injured witnesses have also deposed regarding the injuries received by them on account of explosion at Zaveri Bazaar:
(i) Ramchandra Raghunath Deshmukh (PW-394) was injured by a glass splinter that hit him on his back, tearing his shirt and causing a wound.
(ii) Shivari B Garg (PW-424) was also injured by 15 to 20 glass splinters which struck him with great force causing multiple bleeding injuries near his left eye, left side of forehead, left hand and chest.
(iii) Arjun Padurang Devde (PW-578) received injuries on the left side of his waist. He had to remain in the hospital for 8-9 days as the injuries were sustained due to some foreign particles which had pierced into his waist. It is pertinent to mention that metallic pieces (Article 485) were extracted from his body which were seized by Ashok Ganpat Dabhade (PW-558) vide panchnama Exhibit 1925.
350.1 The following doctors have proved the injury certificates (Exh. Nos. 2364 and 2355) with regard to PWs-394 and 424:
(i) Dr. Durgaprasad Mahavir Vyas (PW-634) and;
(ii) Dr. Vijaykumar Purshotam Ved (PW-637).
350.2 The following witnesses have proved the ADR/Inquest panchnamas in respect of the victims who died in the explosion:
(i) Sudhir Prabhakar Aspat (PW-569) and;
(ii) Feroz Rajahamed Patel (PW-576) and PW-558.
350.3 The following witnesses have proved the death of their relatives in the explosion:
(i) Vinayak Dattatray Chavan (PW-395) deposed with regard to the death of his sister, brother-in-law and nephew, who died due to injuries sustained in the blast that took place at Zaveri Bazaar on 12.03.1993 and;
(ii) Radheshyam Mangalchand Poddar (PW-396) deposed about the death of his son due to the blast that took place at Zaveri Bazaar.
350.4 The prosecution has also established the damage caused to various properties due to the bomb blast at Zaveri Bazaar from the panchnama Exh. No. 1908 as also by the deposition of PW-554. It also stands established that the damage was due to the explosion caused with the help of RDX explosives.
351. In view of the above said confessional statement of the appellant (A-9), the confessional statements of other co-accused persons as also the eye-witnesses PWs-29 and 36, along with other witnesses duly examined by the prosecution, the contentions raised by learned counsel for the appellant regarding his participation in the conspiracy, landing, conspiratorial meetings as well as the filling of RDX during the intervening night, are meritless as the charges framed against the appellant (A-9) have been duly proved.
****************
332. Ms. Farhana Shah, learned counsel appeared for the appellant (A-9) and Mr. Gopal Subramanium, learned senior counsel, duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel for the respondent.
333. The present appeal is directed against the final judgment and order of conviction and sentence dated 14.09.2006 and 19.07.2007 respectively, whereby the appellant has been convicted and sentenced to death by the Designated Court under TADA for the Bombay Bomb Blasts Case, Greater Bombay in B.B.C. No. 1/1993.
Charges:
334. A common charge of conspiracy was framed against all the co- conspirators including the appellant (A-9). The relevant portion of the charge is reproduced hereunder:-
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UA.E.) 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, handgrenades and other explosives 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, 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, handgrenades 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 Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of Indian Penal Code read with Sections 3(2)(i)(ii), 3(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.
334.1 In addition to the above said charge of conspiracy, the appellant (A-9) has also been charged for commission of the following offences:
At head secondly; the appellant (A-9) committed an offence punishable under Section 3(3) of TADA by doing the following overt acts:
i) Participated in landing of arms and explosives at Shekhadi Coast, Raigad District along with co-conspirators on the 3rd and 7th of February, 1993;
ii) facilitated the escape of Tiger Memon (AA) by fetching his ticket and passport from the house of Mobina (A-96) and by obtaining his boarding pass on the morning of 12.03.1993, at Sahar Airport; and
iii) actively participated in preparation of vehicle bombs in the night intervening 11th/12th March, 1993 at Al-Hussaini Building.
At head thirdly; on 12.03.1993, the appellant (A-9), parked a scooter laden with explosives and fitted with a time device detonator in Zaveri Bazaar, which exploded killing 17 persons, injuring 57 persons and causing loss of property to the tune of Rs.1.20 crores and thereby committed an offence under Section 3(2)(i)(ii) of TADA.
At head fourthly; for the aforesaid act mentioned in charge thirdly, the appellant (A-9) committed an offence punishable under Section 302 IPC.
At head fifthly; for the aforesaid act mentioned in charge thirdly, the appellant (A-9), committed an offence punishable under Section 307 IPC by injuring 57 persons.
At head sixthly; the appellant (A-9), by causing the aforesaid explosion which resulted in grievous hurt to 9 persons committed an offence punishable under Section 326 IPC.
At head seventhly; the appellant (A-9), by causing the aforesaid explosion and voluntarily causing hurt to 48 persons committed an offence punishable under Section 324 IPC.
At head eighthly; the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs. 1.2 crores committed an offence punishable under Section 435 IPC.
At head ninthly; the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs. 1.2 crores committed an offence punishable under Section 436 IPC.
At head tenthly; the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.
At head eleventhly; the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 4(b) of the Explosive Substances Act, 1908.
At head twelfthly; the appellant (A-9), in pursuance of the conspiracy and in contravention of rules made under Section 5 of the Explosives Act, 1884 without licence having possessed and used RDX, committed an offence punishable under Section 9-B (1)(b) of the said Act.
At head thirteenthly; the appellant (A-9), in pursuance of the said conspiracy, on 12.03.1993, in the afternoon, having abetted and knowingly facilitated terrorist act i.e. the explosion at Centaur Hotel Juhu, Centaur Hotel at Airport and Hotel Sea Rock at Bandra committed by the co-conspirator i.e. Mohammed Mushtaq Moosa Tarani (A-44), Parvez Nazir Ahmed Shaikh (A-12) and Anwar Theba (AA) by planting explosive laden suitcases in the rooms of the said hotels respectively and yourself by accompanying them and A-10 in a Maruti Van bearing No. MFC-1972 on their way for planting the said suitcases in the said hotels with intent to commit the terrorist act, committed an offence punishable under Section 3(3) of TADA.
At head fourteenthly; the appellant (A-9), for the aforesaid act mentioned in charge thirteenthly, committed an offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.
335. The Designated Judge found the appellant (A-9) guilty on all the aforesaid charges except the charge of participating in landing. The appellant (A-9) has been convicted and sentenced for the above said charges as follows:
Conviction and Sentence:
(i) The appellant was found guilty for the offence of conspiracy for commission of such acts as found proved from charge firstly framed at trial and punishable under Section 3(3) of TADA and Section 120-B of IPC read with the offences mentioned in the said charge and on the said count the appellant has been sentenced to suffer RI for life along with a fine of Rs.25,000/-.(charge firstly)
(ii) The appellant has been sentenced to RI for 5 years along with a fine of Rs. 25,000/- for the offence punishable under Section 3(3) of TADA. (charge secondly)
(iii) The appellant has been sentenced to death along with a fine of Rs.25,000/- for the offence punishable under Section 3(2)(i) of TADA. (charge thirdly)
(iv) The appellant has been sentenced to death along with a fine of Rs 25,000/- for the offence punishable under Section 302 IPC. (charge fourthly)
(v) The appellant has been sentenced to RI for life along with a fine of Rs. 50,000/- for the offence punishable under Section 307 IPC. (charge fifthly)
(vi) The appellant has been sentenced to RI for 10 years along with a fine of Rs. 50,000/- for the offence punishable under Section 326 IPC. (charge sixthly)
(vii) The appellant has been sentenced to RI for 3 years for the offence punishable under Section 324 IPC. (charge seventhly)
(viii) The appellant has been sentenced to RI for 7 years along with a fine of Rs. 50,000/- for the offence punishable under Section 435 IPC. (charge eighthly)
(ix) The appellant has been sentenced to RI for 7 years along with a fine of Rs. 50,000/- for the offence punishable under Section 436 IPC. (charge ninthly)
(x) The appellant has been sentenced to RI for 10 years along with a fine of Rs. 25,000/- for the offence punishable under Section 3 of the Explosive Substances Act, 1908. (charge tenthly)
(xi) The appellant has been sentenced to RI for 7 years along with a fine of Rs 25,000/- for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908. (charge eleventhly)
(xii) The appellant has been sentenced to RI for 2 years for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. (charge twelfthly)
(xiii) The appellant has been sentenced to RI for 7 years along with a fine of Rs. 25,000/- for the offence punishable under Section 3(3) of TADA. (charge thirteenthly)
(xiv) The appellant has been sentenced to RI for 5 years along with a fine of Rs 25,000/- for the offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fourteenthly)
Evidence:
336. The evidence against the appellant is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimonies of prosecution witnesses; and
(iv) documentary evidence on record.
Conspiracy
337. As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer to the same once again.
337.1 Confessional Statement of the appellant – Mohammed Shoeb Mohammed Kasam Ghansar (A-9)
338. Confessional statement of the appellant (A-9) under Section 15 of TADA has been recorded on 19.04.1993 and 22.04.1993, by Shri P.K. Jain, the then DCP, Zone X, Bombay. The following facts emerge from the said confessional statement:
(i) In the night of 11.03.1993, on being asked by Asgar Yusuf Mukadam (A-10), the appellant went to Sahar Airport along with him and got a boarding card issued for Tiger Memon.
(ii) The appellant (A-9) asked A-10 that ‘what to do if anyone catches me, at this, A-10 answered to tell that it (boarding card) belongs to my brother.
(iii) Tiger Memon left India in the morning of 12.03.1993, at 4 a.m., and the appellant (A-9) and A-10 saw him leaving the Airport for Dubai.
(iv) The appellant (A-9) was present at the Al-Hussaini building on the night of 11.03.1993 after dropping Tiger Memon at the Airport, and was also present when RDX was being filled into the vehicles by other co-accused persons including Abdul Gani Ismail Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12), Mohd. Shafi (AA) and Anwar Theba (AA).
(v) The appellant (A-9), along with A-10 and A-12, disposed of six big plastic bags in a wastage van of BMC at Bandra Reclamation Road. These bags were handed over to them by Anwar Theba (AA) at the Al-Hussaini Building.
(vi) On 12.03.1993, the appellant (A-9), accompanied A-10 and went to the residence of A-12 in order to pick him up and, thereafter, they went to the Al-Hussaini Building in a Maruti Van.
(vii) 3 VIP Bags were collected by A-12 and A-10 from the garage at the Al-Hussaini building and then they along with the appellant (A-9) went to the residence of Anwar Theba (AA) to pick him up.
(viii) On 12.03.1993, the appellant (A-9) was present in the Van at the time of insertion of timer pencil detonators in the black chemical (RDX) kept in the 3 VIP suit cases by Anwar Theba (AA).
(ix) On 12.03.1993, the appellant (A-9) was also present with A-10 in the van used for dropping the co-accused, namely, A-12, A-44 and Anwar Theba (AA) who went for planting bombs in Hotel Sea Rock, Hotel Centaur Juhu and Hotel Centaur Airport respectively.
(x) The appellant (A-9), thereafter, returned to the Al-Hussaini building with A-10. A-12, A-44 and Anwar Theba (AA) also returned to the said building after planting the bombs at the targets which exploded later. He noticed that three new scooters were parked at Al-Hussaini compound. He was present when Mustaq (A-44) left with one of the new scooters.
(xi) On the very same day, i.e., 12.03.1993, on the instruction of A-10, the appellant (A-9) planted a scooter laden with RDX in front of a jewellery shop at Zaveri Bazaar as per the instructions of A-10. Anwar Theba (AA) had inserted timer pencil detonators in the black chemical (RDX) filled in dicky of the scooter. The appellant (A-9) had the knowledge that the scooter was carrying bomb as told to him by A-10.
(xii) After planting the scooter laden with RDX, the appellant (A-9) went to a Masjid and begged for forgiveness for his sins. He also threw the keys of the scooter in a drain near Bus Stop No. 4 at Mohd. Ali Road.
339. From a perusal of the entire confession, it is established that the appellant was fully aware and conscious of the overt acts committed by him. The above stated facts are established from the admission of his guilt that after planting the bomb at Zaveri Bazaar, he begged for forgiveness for his sins from Allah (the Almighty God) and that even at the time of getting the boarding pass of Tiger Memon, he was conscious and cautious that he was facilitating, aiding and abetting a terrorist in fleeing from the country, and accordingly, the appellant enquired from A-10 at the Airport as to what will happen if anyone catches him. The guilt of the appellant (A-9) is proved from his confession and it is established that he knew that his actions were wrong and illegal. The appellant consciously joined the conspiracy and committed overt acts in furtherance of the conspiracy. He was well aware of the consequences of his actions and the actions of other co-conspirators.
Confessional Statements of co-accused:
340. Apart from his own confession, the involvement of the appellant (A-9) has also been disclosed in the confessional statements of the following co- accused. The legality and acceptability of the confessions of the co- accused has been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant are summarized hereinbelow:
Confessional Statement of Asgar Yusuf Mukadam (A-10)
340.1 Confessional statement of A-10 under Section 15 of TADA has been recorded on 20.04.1993 and 23.04.1993 (18:00 hrs.), by Shri K.L. Bishnoi, the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-9):
(i) In the night of 11.03.1993, the appellant booked the luggage of Tiger Memon and obtained his boarding card at the Airport for his departure to Dubai.
(ii) The appellant (A-9), accompanied by A-10 and A-12, disposed of the plastic bags in a wastage van of BMC which contained the empty boxes of explosives.
(iii) The appellant (A-9), accompanied by A-10 and A-12, picked up three VIP bags loaded with explosives from the garage at the Al-Hussaini building and took them to the residence of Anwar Theba (AA) where Anwar fitted the detonators in these suitcases and thereafter, the bags were taken away by A-12, A-44 and Anwar Theba (AA) to Hotel Sea Rock, Hotel Centaur Juhu and Hotel Centaur Airport respectively.
(iv) The appellant (A-9), on being asked by A-10, drove the scooter laden with explosives on the instructions of Anwar Theba (AA) and parked it at a crowded place in Zaveri Bazaar which later exploded killing 17 persons and injuring 57 others.
Confessional Statement of Abdul Gani Ismail Turk (A-11)
340.2 Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Shri P.K. Jain, the then DCP, Zone III, Bombay. A-11, in his confession, has stated that the appellant (A-9) was present at Al-Hussaini Building in the night of 11.03.1993 along with other co-accused, namely, Bashir Ahmed Usman Gani Khairulla (A-13), Parvez Nazir Ahmed Shaikh (A-12), Md. Shafi, Anwar Theba (AA), Javed Chikna (AA) and he filled the chemical (black soap) in the vehicles which were to be planted as bombs. He further stated as follows:
..After sometime Shafi, Anwar, Javed Chikna, Bashir, Parvez, Shoeb and 10/12 boys assembled there. All people came in the garage of Al-Hussaini Building and all of them filled chemical @ black soap in a number of vehicles.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
340.3 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 and 21.04.1993 (06.50 hrs), by Shri P.K. Jain, the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-9):
(i) The appellant (A-9) was present at the Al-Hussaini building on the night of 11.03.1993 along with other co-conspirators when the work of filling the black chemical (RDX) into the vehicles to be planted as bombs in Bombay was being done. The said black chemical was brought from Shekhadi which was landed on 03.02.1993.
(ii) The chemical was packed in cardboard boxes and pieces of iron were also added to it.
(iii) In the morning of 12.03.1993, on the instructions of Anwar Theba (AA), the appellant (A-9), along with A-10 and A-12, threw 5-6 plastic bags in a wastage van of BMC at Bandra which contained the empty cardboard boxes of the explosives.
(iv) A-12 further stated as follows:
And then at about 10.30 o clock, Asgar came back to my house with Shoaib in the same red coloured van and we three came at Al- Hussaini. From there, we reached to the house of Anwar taking the three Suit cases (big briefcase) which were kept in the garage, by Maruti van, where we met Anwar and Mushtaq whose hair were curly. They both came and sat in the car, before starting the car Anwar opened the bag and pierced the article just like pencil into the chemical and closed the bags.
(v) The appellant (A-9), along with A-10, came to the house of A-12 on 13.03.1993 and discussed about the blasts that had occurred on 12.03.1993.
Confessional Statement of Imtiyaz Yunusmiyan Ghavate (A-15)
340.4 Confessional statement of A-15 under Section 15 of TADA has been recorded on 07.05.1993 and 09.05.1993 (13.30 hrs.), by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following facts emerge from the confessional statement of A-15:
(i) The appellant (A-9) was seated in the maroon coloured Maruti Van along with A-10 and A-12 on 12.03.1993 and all of them drove to the house of Anwar Theba (AA) to collect the three suitcases.
(ii) On 12.03.1993, A-9, along with A-10, came to the Al-Hussaini Building in a Maruti Van.
(iii) In the presence of the appellant (A-9), Anwar Theba (AA) inserted timer pencil detonators in the dicky of scooters laden with explosives which were later planted as bombs.
(iv) The appellant drove a scooter laden with explosives and fitted with pencil detonators on 12.03.1993.
Confessional Statement of Mohd. Mushtaq Moosa Tarani (A-44)
340.5 Confessional statement of A-44 under Section 15 of TADA has been recorded on 26.05.1993 and 22.05.1993 (10.00 hrs.), by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confessional statement, he stated that on 12.03.1993, A-9 and A-15 came to the residence of Anwar Theba (AA) in a Maroon coloured car driven by A-10.
341. The aforesaid confessional statements of co-accused persons, viz., A-10, A-11, A-12, A-15 and A-44 duly corroborate the confessional statement of A-9 in all material aspects. From the above, it is established that:
(i) The appellant (A-9) was actively involved in the conspiracy;
(ii) The appellant was present at the Al-Hussaini building in the night of 11.03.1993 and filled RDX in vehicles;
(iii) The appellant went to various places with A-10 and A-12 and also picked up three suitcases filled with RDX from the garage of the Al-Hussaini building in which detonators were inserted by Anwar Theba (AA) in order to plant the same at various places in the city.
(iv) The appellant was traveling in the car in which A-10, A-12, A-44 and Anwar Theba (AA) were also present.
(v) The appellant participated in various conspiratorial acts like aiding, abetting and in fleeing of Tiger Memon out of the country.
(vi) The appellant was fully aware that the aforementioned accused persons were carrying suitcase bombs for planting the same at Hotel Sea Rock, Hotel Centaur, Juhu and at Hotel Centaur, Airport.
(vii) The appellant parked the scooter at the junction of Sheikh Memon Street and Mirza Street at Zaveri Bazaar which exploded at about 03:05 p.m. killing 17 persons and injuring 57 others;
(viii) After parking the scooter, the appellant (A-9) threw the keys of the scooter into a gutter to avoid detection and went to a mosque to beg forgiveness for his sins.
342. It is also clear that the confessions made by co-accused persons are truthful and voluntary and were made without any coercion. All safeguards enumerated under Section 15 of TADA and the rules framed thereunder have been duly complied with while recording the confessions of the appellants.
Retraction Statements:
343. Ms. Farhana Shah, learned counsel for the appellant (A-9) contended that the confessional statement of the appellant as well as of co-accused persons relied upon by the prosecution against the appellant (A-9) were retracted subsequently, and therefore, it is not safe to base the conviction on the said confessional statements under Section 15 of TADA. Since the very same objection raised in the connected appeals was considered and rejected, we are not once again repeating the same. The said conclusion is applicable to this appeal also.
Depositions of Prosecution Witnesses:
344. The prosecution has relied upon the evidence of several prosecution witnesses to establish the involvement of the appellant (A-9) in the conspiracy. The relevant facts emerge from the deposition of witnesses incriminating the appellant have been enumerated below:
Eye-witnesses:
Deposition of Badrinath Bishansingh Sharma (PW-29)
(i) PW-29 is a hawker at Zaveri Bazaar. He is an eye-witness to the blast. He testified that on 12.03.1993, he saw a person trying to park a scooter in front of the shop of Narayandas Jewellers at Zaveri Bazaar which fell down. PW-29 offered to help him in lifting the scooter but the appellant (A-9) refused to take any help.
(ii) He remembered the colour of the scooter as grey and noted its number on a cigarette pack. The said packet was handed over to the police on 18.03.1993 which was seized by seizure Panchnama Exh. No. 1878 proved by Nisar Ahmed Kankarbhai Shaikh (PW-550). PW-29 also identified the said cigarette packet.
(iii) He also described about the site of the blast and stated that several persons were killed and injured in the blast including himself who got injured in his right leg.
(v) PW-29 identified the appellant (A-9) in the identification parade held at Sacred Hearts School, Worli on 25.03.1993 as the person who parked the said scooter on 12.03.1993 at Zaveri Bazaar.
(vi) PW-29 again identified the appellant (A-9) on 13.05.1993 in the identification parade held at the office of CID in Crawford Market.
344.1 A perusal of the deposition establishes the fact that the appellant (A-9) parked the scooter laden with explosives at Zaveri Bazaar. Ms. Farhana Shah, learned counsel for the appellant (A-9) contended that PW-29 is an unreliable witness and his deposition should be discarded since he did not disclose the number of the scooter or inform anyone until he had seen the appellant even after five days of the blasts on 12.03.1993. It is relevant to point out that PW-29 was also injured in the said blast and thereafter, he went to his house. The police had cordoned off the area. On the sixth day after the blasts, PW-29 came to the market and informed the police that he could identify the person who had parked the scooter at Zaveri Bazaar. PW-29 actually identified the appellant in the Test Identification Parade conducted on 25.03.1993 and 13.05.1993 as the person who parked the scooter at Zaveri Bazaar.
Deposition of Amit Champalal Acharya (PW-36)
(i) PW-36, who is an Estate Agent, is an eyewitness to the incident.
(ii) When he was standing in front of the shop of Narayandas Jewellers on the fateful day, a scooterist (A-9), lost his balance while parking his scooter in front of the shop and fell down. One passerby tried to help him but he refused angrily.
(iii) He further testified that the scooterist (A-9) left hurriedly after parking the scooter. This further shows that he was aware that there was a bomb inside the scooter which could explode anytime.
(iv) He identified the appellant (A-9) in the identification parade held on 13.05.1993 at the office of CID in Crawford Market.
344.2 Ms. Farhana Shah, learned counsel contended on behalf of the appellant (A-9) that the deposition of this witness should be discarded since PW-36 failed to identify the appellant in the court when he was given opportunity twice. The prosecution submits that non-identification of A-9 in the Court would not make the deposition of PW-36 unreliable as he did identify the appellant (A-9) in the identification parade held on 13.05.1993. The identification parade took place shortly after the blasts but the identification in court took place only on 12.01.1996, which is almost after three years, thus it is possible that due to passage of time PW-36 was unable to identify the appellant before the court. The prosecution further submits that this does not impeach the deposition made by PW-36 since his evidence is sufficiently corroborated by the deposition of PW-29 in all material aspects. The prosecution has brought to our notice that the identification parade dated 25.03.1993 was conducted at Sacred Hearts High School by Ram S. Bhosale (PW-460), who conducted the parade in compliance with the provisions of the Code. PW-460 also recognized Exh.1471, i.e., memorandum panchnama prepared during the parade. PW-460 further stated that no police official was present in the parade room at the time of the parade and that the appellant (A-9) was brought into the parade room wearing a cover (chadar) so as not to reveal his identity.
Deposition of Moreshwar Gopal Thakur (PW-469)
344.3 Special Executive Magistrate (PW-469) conducted the identification parade in respect of A-9. Exh. 1510 is the memorandum of the TIP dated 13.05.1993. The following information is available in the said memorandum:-
(i) TIP memorandum records that a TIP was conducted by SEM Shri Thakur (PW-460) on 13.05.1993.
(ii) The first witness PW-29 identified the appellant as the person who parked the scooter at Zaveri Bazaar on 12.03.1993.
(iii) The second witness PW-36 also identified the appellant as the person who parked the scooter at Zaveri Bazaar on 12.03.1993.
Evidence with regard to recovery of the keys of the Scooter:
Deposition of Narsingh Tukaram Sherkhan (PW-556)
345. PW-556, a police officer, recorded the Disclosure Statement made by the appellant on 21.03.1993 to the following effect:
The appellant (A-9) said to the officer:
Come with me, I will show you the place, where I had thrown the keys of the scooter, after I parked the said Bajaj Scooter laden with explosives
345.1 The said statement was recorded vide Disclosure memo Exh.199 in the presence of Panch Witnesses. Pursuant to the said disclosure, the appellant (A-9) led the police party and the same was recorded in the Panchnama (Exh. 200) to the following effect:
Upon making the statement by the accused in pursuance of the aforesaid panchnama, we the panchas, Police party and the accused Mohammed Shoeb Mohammed Kasam Ghansar, Muslim, aged 30 years sat in the police jeep Number MH-01-M-364 and as per the instruction of the accused, the jeep Driver of P. N. 1938 Mahim Police Station drove the jeep by L. J. Road, Tilak Bridge, Dadar T.T., Ambedkar Road, Ibrahim Rahimatulla Road, Bhendi Bazar and after the jeep reached at Johar chowk via Mohammed Ali Road the accused asked the Jeep Driver to halt the vehicle (jeep) and thereupon the jeep driver halted the jeep. Thereafter the accused person, we the panchas and the police party got down from the jeep. Thereafter, as per the instruction of the accused, we the panchas, police party crossed the Mohammed Ali Road and came to the open space in front of the office of `Time Travel & Tour` on the Western side foot path and on coming at the said place, pointed at a gutter on Mohammed Ali Road, situated on the opposite side of the `Time Travel & Tour` and the accused also pointed that the key was thrown therein. The said gutter is at a distance of 10 feet from the said office. On the said gutter there are two cement lids and below the same there is a cement grille. In the presence of us, the panchas, distance was measured from the said gutter which distance from the Electric pole MHL 53 is 12 feet. The accused push aside the cement lid on the said gutter and dipped his hand in the said gutter and removed a below described key from the silt of the gutter when the police in the presence of us, the panchas, observed the key removed by the accused, the description of the said key is as follows.
There are two keys in one steel ring and on one side of both the said keys, `Bajaj` has been inscribed in English and below the same `2-112` has been inscribed and on the another side the letters K. V. P. has been inscribed in English and the same were smeared with the earth.
345.2 It is brought to our notice by the prosecution that these were the keys of the scooter used in the blast at Zaveri Bazaar and this recovery, therefore, also established the fact that the appellant (A-9) had parked the scooter at Zaveri Bazaar on 12.03.1993 and threw the keys in the gutter after parking the same. The prosecution submitted that the appellant further led the police party to recover his passport and driving licence.
Deposition of Kamalakar Kashinath Deo (PW-51)
345.3 The evidence of PW-556 is further corroborated with the evidence of panch witness Kamalakar Kashinath Deo (PW-51) wherein he stated that the appellant (A-9) had made a voluntary statement in his presence on 21.03.1993 and disclosed the location of the keys of the scooter.
346. It has been contended on behalf of the appellant that the deposition of PW-51 should not be relied upon since the gutter from where the keys were recovered had a manhole, and therefore, the investigating agency has planted the keys. To this, the prosecution pointed out that PW-51 is a panch witness and has identified the appellant as the person who offered to take the police party to the place where the keys of the scooter had been thrown by him and were in-fact recovered from the said gutter after duly opening the manhole. It is further pointed out that PW-51 withstood the rigorous cross-examination and is a credible witness.
347. It has also been contended on behalf of the appellant that the evidence of PW-556 is unreliable due to various contradictions. It is pointed out by the prosecution that there is no contradiction in the deposition of PW-556 and on going through the same, we feel that the contradictions pointed out on behalf of the appellant (A-9) were minor contradictions and they do not go to the root of the matter so as to discredit the testimony of the witness.
Evidence with regard to purchase of scooter:
348. The prosecution pointed out that the scooter which was planted by the appellant (A-9) along with two other scooters, was purchased by Munaf Halari (AA), who was a close friend of Tiger Memon. The said purchase was done in the following manner:
(i) Munaf Halari approached Abdul Sattar (PW-82) for the purchase of these scooters under an assumed name.
(ii) PW-82 took Munaf Halari to Govind Baria (PW-452) and PW-452 in-turn directed them to Asgar Ali Masalewala (PW-299).
(iii) Munaf Halari paid an amount of Rs. 70,000/- in cash to PW-299 and took the delivery of two Bajaj scooters on 10.03.1993, and the 3rd scooter was delivered to Munaf Halari on the following day.
(iv) PW-299 is a sub-agent of PW-298 who in-turn had purchased the scooters from M/s. Mohan Automobiles as deposed by Shriram Jitram Vasan (PW-81).
(v) PW-81 stated that he purchased the scooter from Ajit Vanjari (PW-651) of M/s. Vasan Automobiles.
Deposition of Sayeed Abdul Sattar (PW-82)
348.1 PW-82, who was an employee of Munaf Halari (AA), stated that two new scooters were purchased on 11.03.1993 from the garage of PW-299 in Chor Bazar, Bombay and one of them was of blue color. The delivery of the third scooter was given on the next day. He identified two out of the three scooters purchased, in court.
Deposition of Govind Bechan Baria (PW-452)
(i) PW-452 worked at a petrol pump where Munaf Halari used to park his vehicle and that is how he knew Munaf Halari.
(ii) PW-452 deposed that Munaf Halari, along with two other persons, approached him to purchase new scooters on 10.03.1993 and that the witness referred them to Asgar Ali Masalewala (PW-299).
Deposition of Asgar Ali Tahir Ali Masalewala (PW-299)
(i) PW 299 carried on the business of sale/purchase of scooters.
(ii) On 10.03.1993, Akhtar came to PW-299 with a request to purchase scooters. PW-299 obtained the delivery of scooters from a dealer, viz., Nisha Sales and gave the scooters to Akhtar and his two companions.
(iii) The request for purchase of a third scooter was made on 10.03.1993. On 11.03.1993, he obtained the third scooter from the abovesaid dealer and passed it on to Akhtar and his two companions.
Deposition of Shriram Jitram Vasan (PW-81)
(i) PW-81 is a scooter sub-dealer (he used to purchase scooters from Vasan Auto and sell the same to customers) and prepares scooter purchase challans in the name of Mohan Auto.
(ii) PW-81 sold 22 scooters to Nisha Sales in early days of 1993 three of which were of stone, blue and cosmic colour respectively.
(iii) PW-81 identified the remaining two of the three scooters sold to Nisha Sales in Court.
Deposition of Ajit Vitthalrao Vanjari (PW-651)
(i) PW-651 was an employee at Vasan Auto.
(ii) He recognized the challans issued in respect of purchase of Bajaj Scooters for delivery to M/s Mohan Auto in 1993.
348.1 The prosecution pointed out that the above depositions and the documents clearly establish the chain of purchase of scooters used in the blasts on 12.03.1993.
Investigation, Recoveries and FSL Reports:
349. The place of incident, i.e., where the blast took place at Zaveri Bazaar was inspected by Narayan Yedu Rajguru (PW-554) vide panchnama Exh. 1908. The panchnama described the effect of the explosion and vide this panchnama debris and other articles were seized by the I.O. from the place of occurrence. PW-554 also took samples from the place of occurrence in the presence of FSL Experts vide panchnama Exhibit 1909.
Deposition of Narayan Yedu Rajguru (PW-554)
349.1 In his deposition dated 29.12.1999, he deposed that:
(i) He reached the site within 15 minutes of the blast.
(ii) He prepared a panchnama Exh. 1908 in the presence of panch witnesses and seized the articles/blast debris etc.
iii) He also proved this panchnama in court.
(iv) He deposed that the Forensic expert had also collected the samples from the blast site on 13.03.1993 and a panchnama (Exh. 1909) was prepared in the presence of panch witnesses.
(v) The panchnama was proved by the witness.
(vi) The said panchnama records the burnt scooter at the blast site.
349.2 The seized articles were sent to the FSL for examination vide Exh. Nos. 1910 and 1911. The FSL Reports pertaining to the examination of these samples are Exh. Nos. 1883, 1884 and 1885 which show the presence of residual high explosive RDX in the samples forwarded for examination.
Evidence with regard to Injured Victims and the Relatives of the Deceased:
350. Nisar Ahmed Kankarbhai Shaikh (PW-550) has proved the deaths and injuries caused to various persons due to the said explosion. The following injured witnesses have also deposed regarding the injuries received by them on account of explosion at Zaveri Bazaar:
(i) Ramchandra Raghunath Deshmukh (PW-394) was injured by a glass splinter that hit him on his back, tearing his shirt and causing a wound.
(ii) Shivari B Garg (PW-424) was also injured by 15 to 20 glass splinters which struck him with great force causing multiple bleeding injuries near his left eye, left side of forehead, left hand and chest.
(iii) Arjun Padurang Devde (PW-578) received injuries on the left side of his waist. He had to remain in the hospital for 8-9 days as the injuries were sustained due to some foreign particles which had pierced into his waist. It is pertinent to mention that metallic pieces (Article 485) were extracted from his body which were seized by Ashok Ganpat Dabhade (PW-558) vide panchnama Exhibit 1925.
350.1 The following doctors have proved the injury certificates (Exh. Nos. 2364 and 2355) with regard to PWs-394 and 424:
(i) Dr. Durgaprasad Mahavir Vyas (PW-634) and;
(ii) Dr. Vijaykumar Purshotam Ved (PW-637).
350.2 The following witnesses have proved the ADR/Inquest panchnamas in respect of the victims who died in the explosion:
(i) Sudhir Prabhakar Aspat (PW-569) and;
(ii) Feroz Rajahamed Patel (PW-576) and PW-558.
350.3 The following witnesses have proved the death of their relatives in the explosion:
(i) Vinayak Dattatray Chavan (PW-395) deposed with regard to the death of his sister, brother-in-law and nephew, who died due to injuries sustained in the blast that took place at Zaveri Bazaar on 12.03.1993 and;
(ii) Radheshyam Mangalchand Poddar (PW-396) deposed about the death of his son due to the blast that took place at Zaveri Bazaar.
350.4 The prosecution has also established the damage caused to various properties due to the bomb blast at Zaveri Bazaar from the panchnama Exh. No. 1908 as also by the deposition of PW-554. It also stands established that the damage was due to the explosion caused with the help of RDX explosives.
351. In view of the above said confessional statement of the appellant (A-9), the confessional statements of other co-accused persons as also the eye-witnesses PWs-29 and 36, along with other witnesses duly examined by the prosecution, the contentions raised by learned counsel for the appellant regarding his participation in the conspiracy, landing, conspiratorial meetings as well as the filling of RDX during the intervening night, are meritless as the charges framed against the appellant (A-9) have been duly proved.
****************
