Abdul Gani Ismail Turk (A-11) Vs. The State of Maharashtra Through STF, CBI Bombay
EmailTerrorist 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 Conviction under – Bombay Blast case – Conspiracy Accused AG (A11) charged with conspiracy Confessional statement of accused Knew Tiger Memon and dealt with Hawala money Attended various meetings with co-conspirators led by Tiger and others Contraband articles loaded in his presence Knew that arms and ammunition were meant for causing blasts in Bombay Transferred money, men and ammunition Also took training and participated in filling of RDX in vehicles Planted RDX laden vehicle at passport office, Worli Confession recorded as per procedure and having regard to safeguards. Held that confession of accused was admissible in evidence and his conviction is valid.
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 Bombay blast case Confession of accused AG (A11) Said confession retracted later Confession recorded after due warning and due compliance of law Retracted on 11.11.1994 Between 1993 to 1994, produced before court on number of times No retraction at earliest point No reasons for failure to complain about obtaining signatures on blank or typed papers to any authority Statement duly corroborated by confessional statements of co-accused person , viz, G (A9), AY (A10), PN (A12), B (A13), IY (A15), SA (A17), SM (A18), M (A23), MK (A24), AR (A28), Q (A29), 11(A57), D (A64), GH (A73), MP (A100). Held that confessional statement of accused AG cannot be discarded merely because it has been retracted. The statement being voluntary and truthful, requires no corroboration. Statements made by other co-accused are admissible against him also. (Para 365-368)
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 Bombay blast case Evidence – Apart from confessional statement of accused, similar statement of other co-accused, inculpating themselves and others Statement of approver also, who met the accused at various places No deposition by approver, which may be inherently contradictory to prosecution’s case Also deposed about presence of this accused at time of filling vehicles with RDX – PW saw him parking jeep at century Bazar, which exploded Accused identified in TIP and in Court SEM conducted his TIP Part of damaged jeep seized from spot vide panchanama Several police officials examined to provide necessary link FSL report established presence of RDX Some of the injured witnesses also examined along with doctors with injury sheets Other witnesses deposed about damage caused to buildings near place of explosion Evidence of purchase of vehicle by one of the absconding accused and other related links Accused also having admitted planting of jeep at century bazar. Held that it is established that accused (A11) was active member of conspiracy which led to blast at various places. Hence charge brought home by prosecution. (Para 369- 378)
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 Charge of Proof – Evidence Bombay blast case Confessional statement of accused PN (A12) Accused introduced to Tiger Memon Took active part in meeting and in landing smuggled items Witnessed loading of contrabands in cavities of jeeps and in lorry and also loading of RDX in jeeps and assisted Took RDX laden scooter and parked in Katha Bazar Planted suitcase at Hotel Sea Rock Confession truthful and voluntary Recorded with all safe guards. Held that accused was a party to conspiracy and his confession is admissible in evidence. Charge of conspiracy proved. (Para 384 390)
Sections 3, 5, 6, 15, 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 Blast at Katha Bazar PW seeing accused (A12) parking scooter in Bazar Identified him in court Also identified him in TIP conducted by SEM Another witness saw him parking scooter as he objected parking near car of his employer, which was completely burnt Connected evidence of officer who recorded confession and SEMs who conducted TIP Seizure of left article at blast site including number plate of scooter Said scooter purchased by PW at behest of co-accused in fake name Depositions of various witnesses regarding death and injuries in blast at said site Further evidence regarding blast at Hotel Sea Rock Specific evidence of Hotel staff that accused came with suitcase and bag and left after 10-15 minutes without luggage Accused identified by staff in TIP Room booked in fake name Several witnesses to injuries and death Several police officers examined regarding site inspection and seizures Recovery of revolver and bullets at behest of accused in presence of witnesses. Held that charge as leveled against accused stands established.
He (A-11) knew that Tiger Memon was a criminal and he also used to take delivery on behalf of Tiger Memon in the hawala transactions and also participated in the smuggling of silver ignots. On 27/28 January, he went to take delivery of arms and ammunitions and explosives along with other accused. When the landing was delayed by 2-3 days, he stayed in a hotel along with others. The appellant (A-11) has admitted in his confession that he had seen 70 – 80 boxes of black coloured chemical, 250 – 500 hand- grenades, 15-20 big pistols, 60-70 big rifles, electronic wires, magazines and rounds at the time of landing that took place on 02/03.03.1993 at Waghani Tower. From the confessional statement of the appellant (A-11), it can be concluded that he was an integral part of the conspiracy and was a very close associate of Tiger Memon and not merely an innocent servant who knew nothing about the actions of his master. (Para 360)
The above quoted conversation shows that the appellant (A-11) had been given due warning by the officer recording the statement that his statement can be used against him. He had also been asked if there was any coercion or threat due to which he was giving his confessional statement. The questions and answers establish that the confession made by the appellant (A-11) was voluntary. (Para 361.2)
It is established that the confession of the appellant (A-11) was truthful and voluntary. It has also been demonstrated that the requirements of Section 15 of TADA have been complied with. Hence the confession of the appellant (A-11) is admissible as substantive evidence. (Para 364)
On perusal of the depositions of PWs-8 and 9, it is clearly established that on 12.03.1993, the appellant parked the scooter at Katha Bazaar, opposite to Matruchhaya Building which later exploded. The appellant was duly identified by PWs 8 & 9 before the Court and also during the identification parade conducted by the Special Executive Magistrate. The above depositions also sufficiently corroborate the confessional statement made by the appellant that he parked a scooter laden with explosives at Katha Bazaar. (Para 392)
PW-386, purchased the scooter at the behest of A-26 from Ratlam, MP in the fake name of P.B. Mali and A-26 paid the money for the said purchase. PW-386 also sent the registration papers to him which were subsequently recovered from his shop vide disclosure statement made by A-26. (Para 392.9)
The scooter was booked in the fake name is also established from the deposition of PW-75. (Para 392.11)
Witnesses have proved the damage caused to the public property on account of explosion at Katha Bazar. (Para 393.5)
PW-23 was working as an attendant in the House Keeping Department of the said Hotel. He deposed as under:
i) A guest (A-12), carrying a biscuit coloured suitcase and a black shoulder bag checked in Room No. 1840 at about 12:15 hrs.
ii) The guest (A-12) was finding difficulty in opening the lock of the room so he assisted him in opening the door.
iii) The appellant asked him not to disturb as he was exhausted and wanted to sleep.
iv) Around 3 p.m., he heard a loud explosion due to which the said room was completely damaged and the lift also stopped working.
v) PW-23 identified the appellant before the Court in the dock.
vi) He also identified the appellant in the Test Identification Parade conducted by Vasant Kamble (PW-462) on 21.03.1993. (Para 394)
The evidence establishes the fact that the appellant (A-12) entered into the Room No. 1840 along with the luggage and after leaving the same in the said room, he went out of the hotel. Thereafter, a big explosion took place in the said room. Both PWs-23 and 28 have identified the appellant (A-12). (Para 394.4)
Room No. 1840 was booked in a fictitious name. (Para 394.9)
Sufficient evidence is available on record to substantiate the fact that the appellant (A-12) participated in filling RDX in vehicles in the night intervening 11th/12th March, 1993. (Para 396)
PW-8 saw a person parking the said scooter at Katha Bazaar from the window of his office which is at a distance of about 15-20 meters from the road. The scooter of PW-8s employer was parked close to the scooter parked by the appellant (A-12). It is normal human behaviour to look out for ones own vehicle or employers vehicle and accordingly, PW-8 was attentive and had a clear sight of the scooter. Thus, there was no difficulty in seeing the appellant parking the scooter which later exploded. (Para 397)
It is contended on behalf of the appellant (A-12) that PW-530 had not obtained the signatures of panch witnesses upon the licence and/or that he had not recorded the Registration number of the vehicle in the Station Diary and that the panch witness was not a local panch witness and was from a place more than 100 kms. away. This submission is also liable to be rejected since PW-530 clearly explained the circumstances in which he had taken the said panch for the panchnama, i.e., the persons who were fetched by staff from Crawford Market. PW-530 in his deposition stated that the driving licence being a plastic card, he could not obtain the signatures on the same and the details of the driving licence having already been mentioned in the panchnama, he had not pasted the label of the signature of panch witness upon the same and that he had mentioned in the Station Diary the purpose of his visit and the persons accompanying him. (Para 398)
PW-28 had correctly identified the appellant (A-12) during the test identification parade dated 07.05.1993 and he failed to identify him before the Court possibly because his testimony was recorded after about 2 years and 9 months, i.e. on 21.12.1995. (Para 399)
In view of the above said confessional statement of the appellant (A-12), the confessional statements of other co-accused persons, as also the eye-witnesses along with other witnesses duly examined by the prosecution and recoveries made, the charges framed against the appellant have been duly proved. (Para 400)
353. These appeals have been filed against the final judgment and order of conviction and sentence dated 19.09.2006 and 18.07.2007 respectively, whereby the appellant has been convicted and sentenced to death by the Designated Court under TADA Bombay Bomb Blast Case, Greater Bombay in BBC No. 1/ 1993.
Charges:
354. A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-11). 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.
354.1 In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on other counts which are summarized as under:
At head Secondly:- The accused committed an offence punishable under Section 3 (3) of TADA (P) Act 1987 by committing the following overt acts:
(a) He participated in the landing of arms and explosives at Shekhadi in February 1993.
(b) He attended meetings at the house of Babloo and Mobina to make plans for committing terrorist acts.
(c) He received training in handling of arms, explosives at village Sandheri and Borghat.
(d) He participated in preparation of vehicle bombs in the night of 11th/12th March 1993.
At head Thirdly:- He planted the explosive laden Jeep No. MP-09-S-0070 in front of Udipi Hotel in Century Bazar, Worli on 12.3.1993, which exploded causing death of 88 persons, injuries to 159 persons and loss of properties worth Rs. 2.41 crores and, thereby, committed an offence punishable under Section 3(2)(i)(ii) of TADA.
At head Fourthly:- By causing the above mentioned explosion which resulted into death of 88 persons, he committed an offence punishable under Section 302 IPC.
At head Fifthly:- By causing the above mentioned explosion which resulted into injuries to 159 persons, he committed an offence punishable under Section 307 IPC.
At head Sixthly:- By causing the aforesaid explosion which resulted into grievous injuries to 53 persons, he committed an offence punishable under Section 326 IPC.
At head Seventhly:- By causing the above said explosion which resulted into injuries to 106 persons, he committed an offence punishable under Section 324 IPC.
At head Eighthly:- By causing the aforesaid explosion which resulted into damage to properties worth Rs. 2.5 crores, he committed an offence punishable under Section 435 IPC.
At head Ninthly:- By causing the aforesaid explosion, he also committed an offence punishable under Section 436 IPC.
At head Tenthly:- By causing the aforesaid explosion which resulted into death, injuries and damage to the properties, he committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.
At head Eleventhly:- By causing the aforesaid explosions by possessing explosive substances, he committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908.
At head Twelfthly:- By possessing the explosives without valid licence that caused the aforesaid explosions, he committed an offence punishable under Section 9B (1) (b) of the Explosives Act, 1884.
At head Thirteenthly:- By causing the aforesaid explosion which resulted into damage to the public properties, he committed an offence punishable under Section 4 of the Prevention of Damage to Public Property Act, 1984.
Conviction and Sentence:
355. On all the aforesaid charges the appellant was found guilty except for charges (b) and (c) at head secondly by the Designated Judge. The appellant (A-11) has been convicted and sentenced as under:
(i) to suffer punishment of death along with a fine of Rs.25,000/- under Section 3(3) of TADA and Section 120-B of IPC read with the offences mentioned in the said charge. (charge firstly).
(ii) to suffer RI for 10 years along with a fine of Rs.50,000/-, in default, to further undergo RI for 1 year for the offence punishable under Section 3(3) of TADA (charge secondly).
(iii) to suffer punishment of death along with a fine of Rs.25,000/- for the offence punishable under Section 3(2)(i) of TADA (charge thirdly).
(iv) to suffer punishment of death along with a fine of Rs.25,000/- for the offence punishable under Section 302 IPC (charge fourthly).
(v) to suffer RI for life along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 307 IPC (charge fifthly).
(vi) to suffer RI for 14 years along with a fine of Rs.25,000/-, in default, to further undergo RI for six months for the offence punishable under Section 326 IPC (charge sixthly).
(vii) to suffer RI for 2 years for the offence punishable under Section 435 IPC (charge eighthly).
(viii) to suffer RI for 7 years along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 436 IPC (charge ninthly).
(ix) to suffer RI for 10 years along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 3 of the Explosive Substances Act, 1908 (charge tenthly).
(x) to suffer RI for 7 years along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908 (charge eleventhly).
(xi) to suffer RI for 2 years for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884 (charge twelfthly).
(xii) to suffer RI for 5 years along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 4 of the Prevention of Damage to Public Property Act, 1984 (charge thirteenthly).
Evidence:
356. The evidence against the appellant (A-11) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimonies of prosecution witnesses including eye witnesses; and
(iv) documentary evidence.
Conspiracy
357. As mentioned above, a common charge of conspiracy was 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.
Confessional Statement of the appellant – Abdul Gani Ismail Turk (A-11)
358. Confessional statement of the appellant (A-11) under Section 15 of TADA has been recorded on 15.04.1993, by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The following facts emerge from the confession of the appellant:
(i) He knew that Tiger was a smuggler but he still joined him and used to perform the work of delivery/bringing of Hawala money.
(ii) He knew that Asgar Yusuf Mukadam (A-10), Imtiyaz Yunus Miyan Ghavate (A-15), Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Anwar (AA), Parvez Nazir Ahmed Shaikh (A-12) and the fact that they were working with Tiger.
(iii) He used to bring money from Mulchand Sampatraj Shah @ Choksi (A-97) of Zaveri Bazaar.
(iv) He took part in landings of silver at Mhasla, Shekhadi where Jeeps of Raju Laxmichand Jain @ Raju Kodi (A-26) were used for transportation.
(v) On 27/28 January, on being called by Shafi, he visited the Al-Hussaini Building, where Tiger, Anwar Theba (AA), Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Imityaz Yunus Miyan Ghavate (A-15), Parvez Nazir Ahmed Shaikh (A-12), Yakub Abdul Razak Memon (A-1) and his wife were also present.
(vi) On 27/28 January, 1993, he left for Mhasla alongwith Tiger, Anwar Theba (AA), Imtiyaz Yunus Miyan Ghavate (A-15), Shafi, Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46) and Parvez Nazir Ahmed Shaikh (A-12) and from there he went to Shekhadi.
(vii) As there was no landing for 2-3 days, he stayed at Hotel Vaisava alongwith co-accused.
(viii) He stayed along with others at Hotel Big Splash, Alibaugh on 31.01.1993 where other gang members also joined them.
(ix) On 02/03.02.1993, late at night, he alongwith co-accused Imtiyaz Yunus Miyan Ghavate (A-15) and other 4-5 persons went to Waghani Tower by jeep.
(x) He had seen 70-80 boxes of black coloured chemical, 250 – 500 hand grenades, 15-20 big pistols, 60-70 big rifles, electronic wires, magazines and rounds when the boxes were brought to the Tower by Tiger Memon and his men. Those items were also checked by Tiger.
(xi) All the smuggled contraband was loaded in the jeeps, tempo and van after their packing in the presence of the appellant (A-11).
(xii) The jeep of Raju Kodi (A-26) was also used for transportation of arms and ammunitions and RDX explosives.
(xiii) He also brought one such jeep of Raju Kodi to Bombay via Khandala and left it at Anwars residence as per Tigers instructions and dropped the other co-accused at Bandra before leaving the vehicle.
(xiv) He came to know about the object of smuggling of arms and ammunitions from the conversation of co-accused. He knew that this was being done to take revenge for the suffering of Muslims in the riots.
(xv) He visited A-15s residence and as per the instructions of Anwar Theba (AA), he brought the jeep to the residence of Amjad and handed over 3 bags containing wire bundles and bullets to him. He (A-11) parked the jeep there.
(xvi) He visited Tiger Memons (AA) house after 04.02.1993 and accompanied him to the house of Anwar Theba (AA) and met Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28), who had a tempo with them.
(xvii) He received Rs. 1 lakh from Tiger Memon to be paid to Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14). He also received instructions to bring black soap and to go along with Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28) using a tempo available with them. He knew that the black soap was the same material which was brought at Tower on 03.02.1993.
(xviii) He left for Mhasla along with Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28) for the said purpose.
(xix) He reached Mhasla in the morning and as instructed, contacted Dawood Taklya (A-14) and paid Rs. 1 lakh to him.
(xx) He loaded 59 bags in the tempo and left for Bombay. On the way, he met Tiger Memon.
(xxi) On 07.03.1993, he accompanied Tiger and Shafi (AA) to Bandra and then went to the residence of Mobina (A-96) as per Tigers instructions.
(xxii) At Mobinas place, he gave his scooter to Shafi. Other persons also went to the residence of Mobina.
(xxiii) On 08.03.1993, he accompanied Tiger Memon to Mobinas residence.
(xxiv) He accompanied Shafi to Jogeshwari in a Commander Jeep. He had seen Shafi with a bag in which 2 rifles, 4-6 hand-grenades and some rounds were kept.
(xxv) He then accompanied Shafi to the residence of Mobina (A-96).
(xxvi) He went to Mahad in a Jeep along with 3 other co-accused, out of them, one was Bashir Ahmed Usman Gani Khairulla (A-13) and waited at Hotel Vasava for Tiger as per his instructions. Tiger Memon, Javed Chikna (AA), Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), Sardar Shawali Khan (A-54) and three other persons came there after sometime.
(xxvii) In his presence, Tiger threw hand-grenades and imparted training in firing to the co-accused at Sandheri.
(xxviii) He accompanied the co-accused to Sandheri and waited till they did firing practice.
(xxix) He also accompanied the co-accused to Bombay and dropped them at Mahim slope. The Jeep was parked at Shahnaz Hotel and keys of the jeep were given to Tigers parents.
(xxx) He knew about the planting of suitcases in the hotels and the filling of RDX by the co-accused.
(xxxi) He knew that Maruti van was used for carrying RDX filled suit cases for planting the same in hotels. This van was also used for throwing of empty gunny bags and boxes etc. immediately after they were emptied.
(xxxii) He participated in the filling of RDX in the vehicles along with the other co-accused persons. One Jeep, two Maruti cars, one Maruti van, one Ambassador car and 5 scooters were filled with RDX under the supervision of Tiger Memon (AA) and Javed Chikna (AA).
(xxxiii) He accompanied Shafi to his residence and they brought 2 new scooters to the Al-Hussaini building. He again brought one more scooter with Shafi.
(xxxiv) Timer pencils were inserted by the co-accused Anwar Theba (AA) and 2 others in the RDX which was filled in the vehicles in his presence.
(xxxv) He planted the RDX-laden Commander Jeep at Passport office, Worli, Bombay.
(xxxvi) He had knowledge about the smuggling of chemicals and weapons for taking revenge and also about the consequences on account of use of RDX.
359. From the above confession, it is clear that the appellant (A-11) was a close associate of Tiger Memon. He had full knowledge of all the facets of the conspiracy and played an active part in the landing and transportation of RDX and other contrabands and making of suitcase and vehicle bombs. He planted a jeep containing a bomb at Century Bazaar. He was involved in all the stages of conspiratorial design. It is thus established from his own confession that he played an important and active role in the conspiracy.
360. Ms. Farhana Shah, learned counsel for the appellant (A-11) contended that a perusal of his confession shows that he was only an employee (driver) of Tiger Memon and was used only for transportation of goods and had no role in the conspiracy. It was submitted by the prosecution that he (A-11) knew that Tiger Memon was a criminal and he also used to take delivery on behalf of Tiger Memon in the hawala transactions and also participated in the smuggling of silver ingots. On 27/28 January, he went to take delivery of arms and ammunitions and explosives along with other accused. When the landing was delayed by 2-3 days, he stayed in a hotel along with others. The appellant (A-11) has admitted in his confession that he had seen 70 – 80 boxes of black coloured chemical, 250 – 500 hand- grenades, 15-20 big pistols, 60-70 big rifles, electronic wires, magazines and rounds at the time of landing that took place on 02/03.03.1993 at Waghani Tower. From the confessional statement of the appellant (A-11), it can be concluded that he was an integral part of the conspiracy and was a very close associate of Tiger Memon and not merely an innocent servant who knew nothing about the actions of his master. It is also evident from the fact that in his confessional statement, he has stated that he knew the object of the smuggling of arms and ammunitions, which in his words was to take revenge of the suffering of Muslims.
361. It has also been contended on behalf of the appellant that Section 15 of TADA has not been complied with and the warning required to be given was not given. However, a perusal of the same shows that the officer had asked the appellant (A-11) if he was aware that the confession to be made by him can be used as evidence against him in the Court. The accused had answered the aforesaid question in affirmative. The questions that were asked while recording the first part of the confession were:
whether he has any complaint against anybody?
Ans. No.
Q. Whether anyone has put any kind of pressure on you to make this confessional statement?
Ans. No.
Q. Whether you have been given any kind of allurement or threat?
Ans. No.
Q. Do you want to make your confessional statement/ statement willingly?
Ans. Yes.
Q. Whether you understand that you are not bound to make this statement/confessional statement?
Ans. Yes.
Q. Whether you understand that it may be produced in the court as an evidence against you in case you confess?
Ans. Yes.
Q. After this you will be kept at place other than the custody of Tapasi Officer. Whether you know this?
Ans. Yes.
Q. Do you still desire to make a confession?
Ans. Yes.
Q. I do not wish to record your statement forcibly or under any pressure and I, therefore, give you time of 48 hours to think over the same. During this you will be kept at place other than the custody of Tapasi Officer. Whether have you understood this?
Ans. Yes.
361.1 Before recording the second part of the confession, the officer asked the following questions to the appellant. The questions and answers are quoted below:
Q. On 15.4.93, you were produced before me and on that day you were given time of 48 hours to think over before recording the statement. That time limit has been expired, have you thought it over?
Ans. Yes.
Q. Whether you are under any pressure or you have been given any threat or allurement to make this confessional statement?
Ans. No.
Q. Whether you know that, if you make any confession, then it may be produced in the court as an evidence against you?
Ans. Yes.
361.2 The above quoted conversation shows that the appellant (A-11) had been given due warning by the officer recording the statement that his statement can be used against him. He had also been asked if there was any coercion or threat due to which he was giving his confessional statement. The questions and answers establish that the confession made by the appellant (A-11) was voluntary.
362. It has also been contended by the side of the appellant that a part of the confession was made after two months and, hence, it is a manipulated confession. This contention of the appellant (A-11) is devoid of any merit. The second confession has been discarded by the trial court and the prosecution has also not pressed into service that confession before this Court.
363. Learned counsel for the appellant (A-11) has further contended that the confession of the appellant (A-11) was recorded in the odd hours of the night. It is pointed out by the prosecution that this fact could be elicited from the officer recording the confession, who was the best person to answer the query. It was also highlighted that it was not as a matter of routine that the confessions were recorded late at night and only a few confessions have been recorded in the late hours which could have been explained by the recording officer, if he was given an opportunity to explain in the cross examination.
364. The said confession was sought to be retracted on 11.01.1994. It is pointed out by the side of the prosecution that the material contained in the retraction statement is vague. It does not give any details or particulars. The said retraction statement fails to pin point the reason behind the failure of concerned accused to make any complaint to the authority- higher police officers or any other authority including Court regarding his signatures being obtained on blank papers and/or the papers containing some typed material and the reason behind himself being forced to effect the said signatures. It may also be noted that retraction was not made at the first available opportunity by the accused person. After arrest, the accused persons were brought before the court number of times in 1993 and 1994 and the retraction was made many months after making of the confession. From the above discussion, it is established that the confession of the appellant (A-11) was truthful and voluntary. It has also been demonstrated that the requirements of Section 15 of TADA have been complied with. Hence the confession of the appellant (A-11) is admissible as substantive evidence.
Confessional Statement of co-accused:
365. A perusal of the above confession of the appellant (A-11) shows that he was playing a key role in furtherance of the abovesaid conspiracy. The other accused, in their confessions under Section 15 of TADA, have also discussed the role played by the appellant (A-11) in the conspiracy.
Confessional statement of Mohammed Shoaib Mohammed Kasam Ghansar (A-9)
365.1 Confessional statement of A-9 under Section 15 of TADA has been recorded on 19.04.1993 and 22.04.1993 by Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay.
365.2 In the abovesaid confessional statement, the reference to the appellant (A-11) is as follows:
We, thereafter, came at Al- Hussaini Building of Tiger by red coloured Maruti van. He took the car inside after dropping me at the gate and took me inside after ten minutes and offered me a chair to sit. At that time Gani, Parvez, Shafi, Anvar were present there and 5/6 more persons were working in garage.
(emphasis supplied)
Confessional statement of Asgar Yusuf Mukadam (A-10)
365.3 Confessional statement of A-10 under Section 15 of TADA has been recorded on 23.04.1994 (18:00 hrs), by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confessional statement, the reference to the appellant (A-11) is as follows:
(i) His confession establishes that the appellant (A-11) was a close associate of Tiger Memon and used to assist him in hawala transactions by accepting delivery and receipt of funds. He also used to assist Tiger in the landing of smuggled items and their transportation to various places.
(ii) A-11, alongwith other co-accused, assisted the accused (A-10) in collecting Rs. 1 crore from Choksi (A-97) for Yakub Abdul Razak Memon. (A-1)
(iii) Following the departure of Tiger, he was seen present alongwith other co-accused, viz., Javed Chikna (A-12), Shafi, Parvez, Bashir, Usman etc. at Tiger’s residence where various vehicles loaded with RDX were parked which were used for causing bomb blast.
Confessional statement of Parvez Nazir Ahmed Shaikh (A-12)
365.4 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 (14:00 hrs) and 21.04.1993 (06:50 hrs) by Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. The references made by him with regard to the appellant (A-11) are as follows:
(i) A-11 introduced A-12 to Tiger Memon.
(ii) A-11 worked in the Tiger’s office at Dongri and introduced A-12 to Tiger for employment in his office.
(iii) A-11 used to attend Hawala transactions of Tiger alongwith other associates and also used to help him in his landing operations at Shekhadi Coast.
(iv) A-11 went to Shekhadi Coast alongwith other associates to help Tiger in the landing of arms and ammunitions and explosives, which was delayed and effected on 03.02.1993, and transported the said material to the Tower and then to Bombay with the help of the vehicles containing secret cavities for the said purpose.
(v) A-11 also assisted Tiger alongwith other associates in landing at Shekhadi in the second week of February, 1993 and transportation of the consignments to the Tower and thereafter to Bombay.
(vi) A-11 was present in the Al Hussaini building even after the departure of Tiger Memon.
(vii) On the night of 11.03.1993, A-11 filled the chemical into the vehicles parked in the garage at the Al-Hussaini Building.
366. It has been contended by learned counsel for the appellant that from the confession of A-12, it can be inferred that the appellant (A-11) was working as a driver of Tiger Memon. In view of the fact that A-12 has given details about the presence and involvement of the appellant (A-11) in the conspiracy and also about his participation in the act of loading chemicals into the vehicles, it cannot be denied that he was not an integral part of the conspiracy. The fact that A-11 was working in close association with Tiger Memon and was entrusted with the task of driving the jeep shows the trust reposed in him by Tiger Memon. It is just because of the said trust, the position of responsibility commanded by the appellant in the conspiratorial design followed. He played an important and significant role. It cannot be said that A-12 has not given details of any overt act done by A-11. A-12 has, in fact, given significant details about the involvement of A-11 in the landings that took place and in the movement of vehicles in which cavities were made. A-11 was present in the Al Hussaini building even after the departure of Tiger Memon in the early hours of 12.03.1993. This fact establishes that there was no coercion and threat and the appellant (A-11) was working in pursuance of the object of the conspiracy out of his own free will and volition.
Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13)
366.1 Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 and 18.05.1993, by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The reference to the appellant (A-11) in the said confession has emerged as under:-
(i) A-11 participated in the firing practice at Sandheri.
(ii) He was asked by Tiger to take out one gun along with its rounds and hand-grenades for training purpose at Sandheri.
Confessional statement of Imtiaz Yunus Miya Ghavate (A-15)
366.2 Confessional statement of A-15 under Section 15 of TADA has been recorded on 07.05.1993 (12:30 hrs) and 09.05.1993 (13:30 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confessional statement, the following facts have emerged:
(i) A-11 was a close associate of Tiger Memon and worked in his office.
(ii) A-11 had gone to receive Tiger Memon at the Airport on the night of 23rd/ 24th January 1993 and then took him to his residence.
(iii) He participated in the landing and transportation of smuggled arms and ammunitions at Shekhadi.
(iv) He transported the arms and explosives from Waghani Tower to Bombay in a Jeep.
Confessional statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)
366.3 Confessional statement of A-17 under Section 15 of TADA has been recorded on 18.04.1993 and 20.04.1993, by Prem Krishna Jain (PW 189), the then DCP, Zone X, Bombay. He referred to the role of A-11 as follows:-
(i) On 07.02.1993, the appellant (A-11), along with other co-accused (A-18 and A-28), visited the residence of co-accused A-14, and paid Rs. 1 lakh to him. He also brought gunny bags in a Tempo.
(ii) A-17 stated that they were given a total of Rs. 15 lakhs which included Rs. 1 lakh which was given through the appellant (A-11). This money was distributed amongst the various Custom officers, Police officers, Trawlervala, labourers and some money was also spent for the truck and other miscellaneous expenses.
(iii) The appellant (A-11) brought other co-accused in a Jeep. From the Jeep, handgrenades and rifles were taken out for firing at Varad Ghat beyond Mahad.
(iv) The appellant (A-11) was present along with A-17 at the foot-hill when co-accused were doing the firing practice.
Confessional statement of Suleman Mohd. Kasam Ghavate (A-18)
366.4 Confessional statement of A-18 under Section 15 of TADA has been recorded on 18.04.1993 (13:00 hrs) and 01.05.1993 (20:30 hrs), by Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The following facts have emerged from the confessional statement of A-18:-
(i) On 05.02.1993, the appellant (A-11) accompanied A-18 and A-28 and went to Mhasla in a Tempo bearing No. MMP- 4799 and on 06.02.1993 he met Dawood Taklya (A-14) and Dadabhai (A-17) at Mhasla. He helped in loading 59 to 63 packets in the tempo. He also associated with transporting of those bags.
(ii) At the instance of Tiger Memon, A-11 along with A-18 returned to Mhasla from Panvel. They again went to Bombay along with the son of Dawood Taklya (A-14).
(iii) On 08.02.1993 or 09.02.1993, he met A-18 at Mahad when he was with Tiger and others.
(iv) He was also present at Mhasla Tower alongwith others.
Confessional statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
366.5 Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (10:00 hrs) and 22.05.1993 (10:00 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following facts have emerged from his confessional statement:
(i) The appellant (A-11) has been referred to as a man of Tiger.
(ii) The appellant (A-11) took A-23 and others to the hills where he (A-11) took out the arms and ammunitions (a gun, two hand grenades, and a bag of bullets of the gun) and Tiger imparted training in throwing hand grenades and firing with AK-56 rifle.
Confessional statement of Manoj Kumar Bhanwar Lal Gupta (A-24)
366.6 Confessional statement of A-24 under Section 15 of TADA has been recorded on 30.04.1993 (16:15 hrs) and 09.05.1993 (19:00 hrs) by Sanjay Pandey (PW- 492), the then DCP, Zone-VIII, Bombay. The following facts have emerged in his confessional statement:-
(i) A-11 participated in the first landing at Shekhadi.
(ii) At Shekhadi, the packets were opened and reloaded in the truck. There were AK- 56 rifles, hand-grenades, pistols, cartridges in the packets.
(iii) A-24 also participated in the second landing at Shekhadi along with other people (he has not named the people present in the second landing).
Confessional statement of Syed Abdul Rehman Kamruddin Syed (A-28)
366.7 Confessional statement of A-28 under Section 15 of TADA has been recorded on 23.04.1993 (17:00 hrs) and 01.05.1993 (23:30 hrs) by Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The following facts emerge from his confessional statement:-
(i) A-28 knew Tiger, Anwar, Rafique Madi, Haji Yakub and Gani (A-11).
(ii) On 05.02.1993, the appellant (A-11), along with A-18 and A-28, proceeded in a vehicle from Mahim to Mhasala.
(iii) At Mhasala, he met A-14 and A-17, who got 55-60 gunny bags loaded in their tempo.
(iv) Tiger sent A-11 and A-28 to Persian Darbar.
Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29)
366.8 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs) and 21.05.1993 (14:45 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The statement of A-29 further corroborates the fact that A-11 participated in the landing that took place at Shekhadi. From the statement, it is further established that Gani (A-11) had driven the jeep which was carrying the smuggled goods.
Confessional statement of Mohd. Rafique Musa Miariwala @ Rafiq Madi (A-46)
366.9 Confessional statement of A-46 under Section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs) and 23.04.1993 (21:25 hrs), by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following references have been made in the said confession regarding the appellant:
(i) A-11 worked in the office of Tiger Memon.
(ii) A-11 was one of the staff members of Tiger Memon attending his Dongri office for assistance in his business activities including his landing operations of smuggled goods.
(iii) A-11, along with A-46 and other associates, assisted Tiger Memon in the landing at Shekhadi which took place on 03.02.1993 after the delay of 2-3 days and then arranged for transport along with A-17 and others for its services at the Tower.
(iv) A-11 reached the Tower in a Commander Jeep and exchanged his vehicle with A-46.
Confessional statement of Sahikh Ali Shaikh Umar (A-57)
366.10 Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (12:00 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The reference to the appellant in the said confession is as follows:-
(i) In the first week of February, when Javed Chikna (AA) took A-57 and A-77 to the house of Tiger Memon, A-11 was present there along with other co-accused.
(ii) A-11 was seen on 10.03.1993 after a meeting took place in a flat at Bandra.
(iii) A-11 was present in the flat of Tiger Memon at the Al Hussaini building on the night of 11.03.1993 and then in the garage where the filling was being done.
Confessional statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
366.11 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995, by Shri HC Singh (PW- 474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The references to the appellant (A-11) in the said confession are as follows:
(i) In the last week of January, when A-64 went to meet Tiger Memon, A-11 was present there along with other co-accused.
(ii) He observed that A-11, Javed Chikna, Shafi, Anwar Theba and Rafiq Madi used to visit the residence of Tiger Memon.
(iii) The appellant was seen driving a blue coloured Maruti car in which Tiger Memon had gone to Hotel Persian Darbar to meet the other conspirators.
(iv) While going to Shekhadi, on the way, the accused stopped at a place, where A-11 brought a black coloured bag which contained five AK-47/AK-56 rifles, revolver, magazines and cartridges.
(v) The appellant participated in the first landing at Shekhadi.
(vi) A-11 also participated in the second landing at Shekhadi.
(vii) He was present at the Al-Hussaini Building compound during the preparation of vehicle bombs by using RDX in the night of 11/12.03.1993 which had landed at Shekhadi.
Confessional statement of Gulam Hafiz s/o Suleman Shaikh @ Baba (A-73)
366.12 Confessional statement of A-73 under Section 15 of TADA has been recorded on 15.05.1993 (22:05 hrs) and 17.05.1993 (01:45 hrs) by Vinod Balwant Lokhande, the then DCP, Airport Zone, Bombay. The references to the appellant in the said confession are to be found as under:
(i) The appellant (A-11) was present at Mhasla Tower along with Tiger and others in a Jeep. They had also brought a truck which was loaded with goods which contained bombs, rifles and cartridges.
(ii) He was present while unloading contraband from a truck into a tempo and jeep at Mhasla Tower.
Confessional statement of Mohd. Parvez Zulfikar Qureshi (A-100)
366.13 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs) and 17.04.1993 (17:00 hrs), by Shri Sanjay Pandey (PW 492), the then DCP, Zone-VIII, Bombay. The references to the appellant in the said confession are as follows:
(i) He was present at the residence of Tiger Memon in the night of 11/12.03.1993 along with other co-accused.
(ii) The appellant was loading goods in the Jeep. Thus, it is very well established that the appellant was aware of the consequences of his action and played an important role in the conspiracy.
367. From the confessional statements of the above co-accused, the following facts are established:
(i) The appellant was a very close associate and trusted confidant of Tiger Memon.
(ii) The appellant worked in the office of Tiger Memon and was entrusted with the tasks which could only be assigned to trusted and responsible persons.
(iii) The appellant played an active role in the hawala transactions of Tiger Memon.
(iv) The appellant used to collect money from Choksi (A-97) of Zaveri Bazaar.
(v) The appellant collected Rs. 1 lakh from Choksi (A-97) for Yakub Memon (A-1).
(vi) The appellant was involved in the episode of landing of arms and ammunitions and explosives at Shekhadi Coast.
(vii) The appellant was present at Waghani Tower where the said articles were shifted in a tempo and jeep.
(viii) The appellant participated in the landing which took place at Mhsala and was also entrusted with the duty of transportation of the smuggled goods.
(ix) The appellant was present in the garage of the Al-Hussaini Building in the intervening night between 11/12.03.1993.
(x) The appellant was actively involved in the work of filling of chemical in the vehicles for their use as bombs.
(xi) On 23/24.01.1993, the appellant had gone to the Airport to receive Tiger Memon.
(xii) The appellant attended conspiratorial meetings.
(xiii) The appellant was a participant in the training programme conducted at Sandheri by Tiger Memon.
(xiv) The appellant was present in the Al-Hussaini building even after the departure of Tiger Memon.
(xv) The appellant was one of the most active member of the conspiracy and was a part of it from the stage of inception to the final stage of execution of the terrorist activities.
(xvi) The appellant participated in the conspiracy from planning to execution at various stages.
Retracted Confessions:
368. We have already held that the confessional statement made by a person under Section 15 of TADA shall be admissible in the trial of a co-accused for offence committed and tried in the same case together with the accused who makes the confession. A confessional statement given under Section 15 shall not be discarded merely for the reason that the same has been retracted. Further, a voluntary and truthful confessional statement recorded under Section 15 of the TADA Act requires no corroboration. Since the very same objection raised in the connected appeals was considered earlier, we are not once again repeating the same. The said conclusion is applicable to these appeals also.
Deposition of Prosecution Witnesses:
Deposition of Mohammed Usman Jan Khan (PW-2) (Approver)
369. In the deposition of PW-2, the following statements are relevant:
(i) PW-2 deposed that he knew A-11. He identified the appellant in the Court.
(ii) He mentioned that Tiger Memon along with other co-accused was waiting for the appellant to come with his Commander Jeep after the landing had taken place at Shekhadi.
(iii) On reaching Nagothane Petrol Pump, Shafi took the co-accused to the South Indian Hotel at the Petrol Pump where the witness saw the appellant (A-11) sitting with Tiger along with Anwar Theba (AA), Munna, Karimullah, Ethesham, Akbar. Then they all had lunch in the hotel.
(iv) He also deposed about the landing of AK-56 rifles, rounds, hand grenades, pistols, magazines and RDX i.e. ‘Kala Sabun’.
(v) He also gave details of their stay at Hotel Persian Darbar where the appellant (A-11) was also present.
(vi) On the same day, i.e., on 10.02.1993, at about 7:30 p.m., Tiger Memon came to Hotel Persian Darbar with A-16. Tiger Memon went to the room of the witness and told Shafi to shift the box which they had brought from their Jeep to the Jeep of the appellant (A-11).
(vii) PW-2 also told about the meeting which took place at the house of Shakil, and thereafter, the meeting with the appellant (A-11) outside Lucky Hotel.
370. Learned counsel for the appellant submitted that A-11 had no involvement in the conspiracy and was used as a driver to transport goods and people from one place to another and also that the presence of A-11 in the important conspiratorial meetings has not been mentioned by the approver. It is pointed out by the prosecution that the charges against the appellant have been fully established by the admissible and reliable evidence on record. It is also stated that it is not necessary that the approver ought to speak about each and every aspect of the prosecution case. It is not the case of the appellant that the approver present an inherently contradictory facts than the one proved by the prosecution. It is also pointed out that A-11 has admitted that he was present when the chemical (black soap/ RDX) was being filled in the vehicles, viz., one jeep, 2 Maruti cars, one Maruti Van, one Ambassador and 5 scooters. He further stated as under:
While filling the chemical, firstly a layer of chemical was filled and then pieces of iron were spread over and again a layer of chemical was filled and pressed. I also had done some work. Something like pencil was pierced into the chemical when the work of filling the chemical was over and before we left taking the vehicle in the morning. This work of piercing the pencil into was done by Anvar and some other 1-2 boys.
370.1 Further, when a question was put to him as to why these arms and ammunitions were brought and what was the motive behind the conspiracy, he answered that this was to avenge the loss suffered by Muslims during the riots and he further admitted to be knowing the consequences of the actions, i.e., the destruction that would take place due to their action.
Deposition of Shekhar Shukra Devadiga (PW-15) (eye-witness)
370.1 PW-15 has deposed as under:-
(i) He had seen A-11 parking the Jeep at Century Bazaar on 12.03.1993.
(ii) He identified A-11 in the Test Identification Parade held on 14.05.1993 by Moreshwar Gopal Thakur, Special Executive Magistrate, (PW-469) for which Memorandum Exhibit 1512 was prepared.
(iii) He again identified A-11 in the Court and said that he had observed A-11 very carefully prior to identifying him.
(iv) He identified the appellant (A-11) as the person who brought the blue jeep and parked it in front of his shop which subsequently exploded.
(iv) He deposed that other than identifying the appellant (A-11) in Court and seeing him on the day of the blast, he had never seen him before.
370.2 Regarding the evidence given by PW-15, learned counsel for the appellant (A-11) has contended that the eye witness had left the city after the blast and, hence, he was not reliable. In reply to the said contention, it is rightly pointed out that this is normal human conduct. Further, it has come on record that many persons left the city immediately after the blasts. The people who were injured or who had witnessed the blasts were very scared and horrified by the incident. Similar explosions were caused at various places in the city. So the people of the city were frightened and went to their native places. The said conduct of the witness does not render his testimony doubtful.
Deposition of Moreshwar Gopal Thakur, Special Executive Magistrate, (PW-469)
370.2 PW-469, the Special Magistrate, deposed on 01.02.1999. He stated that he conducted the Test Identification parade on 14.05.1993 for PW-15 for the identification of A-11. The eyewitness (Shri Shreedharan Govindan and Shri Shekhara Shukara Devadiga (PW-15)) identified the appellant (A-11) as the person who parked the blue jeep near Century Bazaar, Worli. The witness also proved Exhibit 1512 which was the identification parade panchnama.
Deposition of Maharajpuram Subramaniyam Seshadri (PW327)
370.3 At the relevant time, PW-327 as the Deputy General Manager, Quality Control, Mahindra & Mahindra Company. He deposed as under:
(i) The bumper (Article No.406) was of a Commander Jeep. The said article was proved to be a part of front bumper of Mahindra Jeep, Commander hard top model shown to him by Inspector Gaikwad at the office of Police at Crawford Market.
(ii) He also proved his report being Exhibit No. 655 and gave the same to Police officer Gaikwad.
Deposition of Anilkumar Vithal Kamat (PW 669)
370.4 At the relevant time, PW-669 was the Inspector of Police. He deposed as under:
(i) He seized 11 articles from the place of occurrence in the presence of FSL Experts and prepared a Panchnama Exhibit 2466. This panchnama contains the details of collection of samples by Chemical Analyser and the chassis and engine number of fully burnt cars.
(ii) One engine was also seized from the place of occurrence. He also stated that the investigation carried out so far by him provided reasonable ground to believe the involvement of A-11.
(iii) He arrested the appellant.
(iv) He obtained the custody of the appellant (A-11) on 12.05.1993 from the Designated Court.
(v) He interrogated the appellant (A-11) and put him for identification parade.
Deposition of Fatehsingh Sohanrao Gaekwad (PW-543)
370.5 At the relevant time, PW-543 was working with the DCB, CID. His deposition was recorded on 09.12.1999. He also proved the death of various persons in the said blasts. He deposed that:
(i) He recorded the statement of the appellant (A-11) in August 1993 under Section 108 of Customs Act, 1962 in respect of damage done to the property due to bomb blast.
(ii) He sought the order of sanction for prosecution of the appellant (A- 11), who had already been arrested by him along with other accused.
370.6 It has been contended by learned counsel for the appellant that PW-543 had made a mistake and had admitted the same in paragraph 21, so it can be inferred that they were acting negligently and they have not adhered to the provisions of the Code. PW-543 admitted as under:
Though I had formally arrested the said 11 accused persons, the said persons being in judicial custody, I had not taken custody of the same and hence, I had not drawn any arrest panchnama while formally showing them to be arrested in C.R. No. 1 1 7/93. My earlier statement of myself having formally arrested the said 11 accused persons before applying for grant of sanction is incorrect statement. I made the said mistake of fact while giving the said answer.
370.7 It is pointed out by the prosecution that this mistake was a bonafide one which the officer corrected at the earliest opportunity. He has also admitted the same in his deposition. The error made by him was an honest human error which cannot be said to have caused any prejudice to the appellant (A-11). From the admission of the officer, it can be conclusively inferred that the investigation was not manipulated and the officers were careful in the work done by them.
Deposition of Mahesh Yashwarnt Athavale (PW-611)
370.8 At the relevant time, PW-611 was attached with the Dadar Police Station as a P.S.I. He inspected the scene of offence. On 24.03.2000, he deposed before the Court as under:
(i) A Panchnama was drawn by him being Exhibit No. 1182 at the site regarding the prevailing situation and ascertaining the damage in the presence of panch witness Gaurishankar Rajnarayan Oza (PW-307).
(ii) The said Panchnama was in respect of the inspection of the site of explosion and the seizure of bumper of the vehicle bearing No. MP-09-S-0070 (Article No.-406).
(iv) The panchnama also records that a crater 11 feet long (south to north), 14 ft, 9 inches long (east to west) and (5ft, 9 inches deep) was found after explosion at Century Bazaar, Worli.
(v) The windows of the nearby buildings were broken and extensive damage was caused in and around the blast site.
(vi) Many vehicles were damaged and two cars were fully burnt.
(vii) The said Panchnama was also proved by PW-307.
370.9 It was submitted on behalf of the appellant that the complainant has described the scene of explosion but he has not mentioned the name of anyone as the accused, so his complaint and testimony are not reliable and admissible. It is submitted that merely because the complaint does not carry the name of the accused, it would not lose its significance.
Deposition of Hari Shridhar Bhangale (PW-306)
370.10 PW-306 was a Constable attached with the Dadar Police Station. At the relevant time, he was posted at Police Chowky near Century Bazaar along with Police Naik Keny. He deposed before the court that:-
(i) He heard a loud explosion at the side of Ramodia Mansion on Annie Beasant Road.
(ii) He also felt a jolt while in chowky.
(iii) He saw dense smoke billowing and he rushed to the place of explosion.
(iv) At the place of explosion, he found that a big ditch/crater was formed and that other buildings, BEST buses, motor taxis and several cars on the said road got damaged and many persons sustained injuries and had succumbed to death and were lying nearby the spot.
(v) He had taken 25 injured persons to Poddar Hospital.
Investigation, Recoveries and FSL Reports:
371. Various articles were sent to FSL vide Exhibit Nos. 1850, 1852 and 2423 for opinion and the reports of FSL were marked as Exhibit Nos. 1851,1853, 2424, 2467 and 2468. FSL reports show the traces of RDX in the said articles which are as follows:
(i) Exhibit 1850 is a letter to the FSL dated 17.07.1993 from CID requesting information about percentage/purity of RDX found on forwarded articles and components of explosives used.
(ii) Exhibit 1851 is the reply of the FSL dated 22.07.1993 to CID stating that percentage of RDX could be provided.
(iii) Exhibit 1852 is a letter to FSL dated 08.08.1993 from CID requesting confirmation whether the engine sent for examination belonged to the exploded Mahindra Jeep No. MP-09-S-0070.
(iv) Exhibit 1853 is the reply letter of FSL stated that a high explosive device would have been placed near the engine and the gear box.
(v) Exhibit 2423 is a letter from Police dated 15.03.1993 to the Chemical Analyser, Bombay sending substances used in Century Bazar bomb blast and requesting for an opinion on the nature of the bomb used.
(vi) Exhibit 2424 is a letter from Police dated 15.03.1993 requesting FSLs opinion on samples collected from the blast site.
(vii) Exhibit 2466 is a panchnama containing the details of collection of samples by chemical analyser. Chemical Analyser has noted the chassis and engine number of fully burnt cars.
(viii) Exhibit 2467 is a FSL report dated 26.03.1993 giving Engine number (DQ 16230) and Chassis number (CDR 75 0 DP-2WDHTDQ1620). The report clarified that RDX was detected as an explosive from amongst the substances recovered by Police at blast site.
(ix) Exhibit 2468 is FSL report dated 23.03.1993 which confirmed the presence of RDX as explosive.
Witness describing the Blast and Damage:
Deposition of Anjani Bhanu Gorule (PW-388)
372. Her deposition was recorded on 05.08.1998. She deposed as under:
(i) On 12.03.1993, at 2:30 p.m., while doing household work on the first floor of her house at Nehru Nagar, Rahivashi Sangh, Century Bazaar, Bombay-18, she heard the sound of a loud explosion and she was thrown on the ground floor.
(ii) She became unconscious. However, after gaining consciousness, she found herself and her relative Sunanda Tambe, who had been in her house on the said day, in Poddar Hospital.
(iii) She sustained burn injuries to her right leg, fracture to left leg and minor injuries to her person due to piercing of splinters and she remained in the hospital for four days.
Deposition of Mrs. Sunita Rajendra Walvekar (PW-389)
372.1 In her deposition dated 05.08.1998, she stated that at about 2 p.m., she had been to beauty parlour on second floor of Ramodia Mansion. She further deposed that:
(i) Around 2:30 to 2:35 p.m., she heard the sound of a huge explosion.
(ii) As she was sitting near the window, something struck on her head and left hand which caused bleeding to her.
(iii) She found that shattered glass had pierced her hand. She removed the same and wrapped the injury with her clothes (pallu of saree) and came out of Ramodia Mansion.
(iv) She found that the entire atmosphere was full of black smoke.
(v) Her brother took her to KEM Hospital where she was treated for 11 days.
Deposition of Jayant Anant Sawant (PW-390)
372.1 He deposed in the Court on 05.08.1998 as follows:
(i) On 12.03.1993, at about 2.45 p.m., while he was at his Typing and Xerox Centre situated opposite to Passport Office on A.B. Road, he heard a loud explosion from the side of Century Bazaar.
(ii) He was thrown away at a distance of 15 feet from the place where he was.
(iii) He sustained injuries on his right cheek due to striking of glass splinters and sustained bleeding injury on his right forearm along with swelling.
(iv) He also sustained injury on his right thigh.
(v) He went to KEM Hospital along with 2/3 persons who also had sustained injuries.
(vi) He was admitted in the said hospital and the glass splinters from his cheek and thigh were removed.
(vii) A piece of iron rod was removed from his forearm and plastic surgery was conducted on his right cheek.
(viii) He remained as an indoor patient in KEM Hospital for one month.
(ix) One Chedda accompanied him and some more injured persons were admitted at KEM Hospital for treatment while others were discharged after the treatment.
Other Evidences:
373. PWs-644, 638 and 632-Doctors have issued the Injury Certificates Exhibit Nos. 2379, 2366 and 2350 for the injuries sustained by PW-388, PW-389 and PW-390 respectively.
Deposition of Dr. Shivkumar Dhanjuram Jaiswal (PW-644)
373.1 PW-644 is a doctor attached to MA Poddar Hospital. He deposed regarding the Certificate issued by him and entry of casualty Register. His deposition reveals that PW 388 was brought to hospital on 12.03.1993 and was having 3 injuries and in his opinion the same were involving risk to her life and had also given history of injuries being sustained due to bomb blast. The Medical certificate of Anjani Manu Borale (PW-388) certifying that she was brought to MA Poddar Hospital on 12.03.1993 due to burns during the bomb blast has been proved by the witness.
Deposition of Dr. Vidya Shirvaikar (PW-638)
373.2 The witness proved the Medical certificate of Sunita Walvekar (PW-389) dated 12.03.1993 which had been marked as Exhibit 2366 certifying that she was treated in the out-patient department of KEM Hospital, Parel for Contused Lacerated Wound (CLW) on face below eye.
Deposition of Dr. Parag Laxman Mhatre (PW 632)
373.3 PW-632 proved Exh. No. 2350, the Medical certificate of Jayant Sawant dated 12.03.1993 certifying that the said victim was treated in the out-patient department of KEM Hospital, Parel for
Contused Lacerated Wound (CLW) on face.
374. A total of 88 people died in the blast that took place at Century Bazaar. PWs-391 and 393 proved the death of two of the victims in Century Bazaar blast as follows:
(i) Vilas Baliram Gamre (PW-391) deposed as a witness regarding the death of his father. While travelling in BEST bus, his father Baliram Gamre succumbed to injuries on 12.03.1993 at about 2:30 to 2:45 p.m. due to bomb blast occurred at Century Bazaar.
(ii) Ashalata Prakash Phatak (PW-393) proved the death of her husband, Prakash Gopal Pathak, in the blast that took place at Century Bazaar.
374.1 The doctors, who examined the dead bodies of various persons died on account of the blasts, have also deposed regarding the injuries received by the deceased persons.
(i) Dr. Walter George Vaz (PW-476) on 03.05.1999 described the reasons for the death of the victims in the blast and proved the death certificates namely, Exhibit Nos. 1584, 1585 and 1587 which were countersigned by him regarding cause of death of John Thomas, Kisan Barshinge and Vishram Mayekar respectively after they were examined by Dr. Baxi, Dr. Pisal & Dr. Inamdar respectively. He also proved his certificate regarding opinion given by him for the cause of death of Prakash Pathak after examining his dead body.
(ii) Dr. Anand Pandurangraj Desai (PW-477) proved the certificates countersigned by him regarding opinion given by him for cause of death of Baliram Gamre, Niyati Acharya and Mamta Surendra after examining their dead bodies.
Deposition of Kishore Laxman Sawant (PW-568)
374.2 PW-568 proved the Accidental Death Reports (ADRs) prepared by him in respect of the dead persons in the blast. The PSI of Dadar Police Station at KEM hospital had registered ADR Nos. 25/93, 34/93 and 37/93 regarding accidental death of Balimar Gamre, Kum. Niyati Acharya and Prakash Pathak respectively. After the bodies were identified by their relatives, they were sent to Coroners Court through officers of Coroners Court. In the same manner, with the help of other police officers, he had registered 34 accidental deaths reported at KEM Hospital. The said persons succumbed to death due to the bomb explosion which occurred at Century Bazaar.
Deposition of Shashikant Ramachandra Raut (PW-309)
374.3 PW-309 proved the damage caused by the explosion. The Panchnama Exhibit 1186 dated 15.04.1998 was drawn by the police officer Shri Agarkar in his presence and in the presence of co-panch on 13.03.1993 at 2.30 p.m. This panchnama was regarding the places visited by them and especially the damage caused to Century Bazaar Building.
Deposition of Devji Nanji Jogadia (PW-580)
374.4 PW-580 proved the damage to the Passport Office. At the relevant time, he was the Superintendent of Administration at Passport Office, Bombay.
(i) Due to the explosion that occurred on 12.03.1993 in front of Ramodia Mansion, opposite to Passport Office, glass panes, window frames, furniture and doors of the Passport office Building were damaged.
(ii) For carrying out the repairs, an expenditure of Rs. 3,29,908/- was incurred which was paid by Ministry of External Affairs and the quotation of M/s Mahindra & Company was accepted for the same.
Deposition of PWs-583 and 647 proved the damage caused to BEST Buses-Public properties.
(i) Sadanand Yashwant Padgaonkar (PW-583) was the Assistant General Manager, BEST Office, Colaba. On 12.03.1993, he found one single decker bus in completely burnt condition lying at the spot of Century Bazaar blast. He also reported seeing 4 damaged buses being brought to workshop at Dadar and ordered repair of the said damaged buses and replacement of the bus lying at Century Bazaar which was also brought to the workshop. In the month of August, 1993, he received the statement sent by the Officer of the Engineering Department of BEST informing that the total expenditure of Rs.13,93,000/- had been incurred for the above stated work.
(ii) Pradeep R Karandikar (PW-647), who was an Assistant Engineer in the Street Lighting Department of BEST deposed that as per the record the total cost was assessed as under:
(a) One BEST electric light pole of value Rs.12,000/- was vanished;
(b) 3 lanterns of value Rs.4,000/- were damaged; and
(c) BEST had sustained a loss of Rs. 16,294/- due to the blast that occurred at Century Bazaar.
Deposition of Jayvant Rahdeo Salvi (PW-316)
374.5 At the relevant time, PW-316 was the Colony Officer, G-Ward South for BMC and proved the damage caused to the properties belonging to BMC (public property).
(i) The pipelines in the Century Bazaar which were supplied by BMC were damaged due to the said explosion.
(ii) The said damage was assessed to the tune of Rs. 45,000/- by Assistant Engineer, Water Works, G-South Ward of BMC.
Deposition of Hemant Dattatray Parab (PW-579)
374.6 At the relevant time, PW-579 was a Fire Officer in the Worli Fire Station and proved the damage caused in general. In his deposition dated 08.02.2000, he deposed that:
(i) After attending and inspecting passport office on 12.03.1993, he prepared the fire report Exhibit 2006 and Exhibit 2007 on 13.03.1993 regarding the damage caused to the said site and the fire spread in the said area;
(ii) 29 vehicles on the road, 6 RCC Buildings and one shed were under fire which was extinguished by them.
Evidence with regard to the vehicle (Jeep) used in the Blast:
375. Three commander jeeps were purchased by Mohammed Shafi Zariwala (AA).The following are the Registration numbers of the same:-
(i) MP 09-S 0070
(ii) MP 09-S 0080
(iii) MP 09-S 0082
375.1 The first jeep was used for the blast at Century Bazaar, Worli. The other two jeeps were found abandoned and were seized by the police. Shafi Zariwala (AA) purchased all these vehicles through PWs-365 and 366 and bookings were done by PW-195, an employee of M/s. Wasan Motors, who were also dealers of jeeps. PW-627 of M/s. Wasan Motors received the cash payment.
Deposition of Nilesh G Parekh (PW-195)
375.2 PW-195 is a Salesman of M/s. Wasan Motors. He deposed that:
(i) In January, 1993, Shakeel Suleman Hasham (PW-366) of Auto Links booked 3 Mahindra Commander Jeeps in the names of Altaf Hussain, Aslam Shaikh and Jamal Ahmed of Indore. The delivery of the said jeeps, i.e., Article Nos. 378/379 was taken through his representative on two different dates in the month of January 1993.
(ii) About ten days after the blast on 12.03.1993, the Jeep (Article 378) bearing registration No. MP-09-S-0082 was shown to him at MRA Marg Police Station.
(iii) After 3 to 4 days, he also saw the blazer-blue coloured Jeep (Article 379) bearing registration no. MP-09-D-3043 at the office of Crime Branch.
(iv) He inspected the said jeeps and found that one additional cavity box and aluminium sheet flooring was prepared.
(v) On 22.01.1993, the Jeep, bearing Engine No. DQ 16217, Chassis No.16217 and Temporary Registration No. DMR-8322 was sold by M/s Wasan Motors.
(vi) Exhibit 865 is the order form of 3 jeeps purchased by Shakeel, i.e., first blazer blue coloured jeep purchased for Altaf Hussain of M.G. Road, Indore, M.P. with temporary registration No. DMR-8322, Chassis no. DQ-16217, second blazer blue coloured jeep purchased for Aslam Shaikh of M.G. Road, Indore, M.P. with temporary registration No. DMR-8323, Chassis no. DQ-16140 and a third blazer blue coloured jeep purchased for Jamal Ahmed of M.G. Road, Indore, M.P. with chassis no. DQ-16230.
Deposition of Navnit Dhanpatrai Saini (PW-627)
375.3 At the relevant time, PW-627 was working as a Sales Executive with M/s Wasan Automobiles at Chembur. In his deposition dated 11.04.2000, he deposed as under:
(i) On 20.01.1993, as asked by PW 195, he met at his residence at Bibijan Terrace, Byculla.
(ii) He alongwith PW-366 went to Patel Petrol Pump and received Rs.4.73 lakhs from PW-365 as an advance for two Mahindra Commander Jeeps which he wanted to book.
(iii) Thereafter, he deposited the said amount with PW-195. On 21.01.1993, as instructed by PW 195, he along with sub-broker PW-366 had gone to PW-365 and placed an order for one more Mahindra Hard Top Commander Jeep and paid Rs.2.36 lakhs in cash and he had given the same to PW 195.
Deposition of Kailash Baheti (PW-342)
375. 4 PW-342 was carrying on the business as an Auto Consultant under the name and style of ‘Baheti Consultant’. In his deposition, he deposed that on 22.02.1993, he received the papers for registration of 3 Mahindra Commander Jeeps at Indore. On the next day, after receiving a call from Bombay regarding the registration papers of the jeeps, he handed over the documents and necessary charges to Mahesh Tiwari, RTO Agent. The officer registered the said jeeps at RTO, Indore. PW-342 gathered from the sale certificates that all the said jeeps were purchased from M/s Wasan Automobiles at Bombay and he deposed that one of the purchasers of the jeeps was Jamal Ahmed who was residing at M.G. Road, Indore and other purchasers were also residents of M.G. Road, Indore.
Deposition of Shakeel Suleman Hasham (PW-366)
375.3 PW-366 was carrying his business under the name and style of M/s Auto Links. In his deposition dated 09.07.1998, he disclosed that before giving the delivery of the said three jeeps to PW 365, he got them insured through Insurance agent Rakesh Tiwari (PW-338). He also got them registered at Indore, Madhya Pradesh through one Kailash Bindav. The delivery of the said three jeeps was taken by the concerned party directly from the showroom of M/s Wasan Automobiles.
Deposition of Suleman Mohd. Lakdawala (PW-365)
375. 4 PW-365 was running his own Petrol Pump at Byculla, under the name and style of M/s Patel Brothers since 1988. Besides the said Petrol pump business, he was also carrying the business of sale and purchase of motor vehicles. In his statement dated 09.07.1998, he stated that in the month of January/February 1993, he arranged for the purchase of three new Commander Jeeps. The jeeps were bearing registration numbers of M.P. They were purchased through PW-366 from Wasan Automobiles for a price of Rs. 7 lakhs. The amount was paid by Shafi Zariwala (AA) and delivery of the jeeps was taken by Shafi who brought them to his petrol pump.
Deposition of Rakesh Tiwari (PW-338)
375.5 PW-338 was an Insurance Agent. Sometime, in between, 22-01-1993 and 25- 01-1993, at the instance of PW-366 of Auto Links, he insured 3 Commander Jeeps and 2 Maruti Vans with National Insurance Company. He gave the policy certificates to PW-366, who paid him the necessary charges. Exhibit 1236 colly is the cover notes of policies prepared as per the information given by PW-366.
Mukhtar Imdad Ahmed (PW-281)
375.6 PW-281 deposed that he had been asked by the Shafi (AA) to prepare cavities in the Jeep. The cavities were to be prepared under the front seat by covering the lower portion of the front left side seat of the jeep.
376. The evidence of the approver, the eye-witness, experts and others clearly implicate A-11 to the actual scene of the crime at Century Bazaar along with linking him to taking part in the entire conspiracy. The confession made by A-11 himself and the confessions of the various co-accused which have been discussed above are in consonance with the other available evidence. Hence, it is established that the appellant (A-11) was an active member of the conspiracy which led to the blasts at various places in Bombay and caused many deaths, injuries and loss to property.
377. The appellant (A-11) in his confessional statement admitted having planted the Jeep at Century Bazaar. It is clear from his own confession along with the confessions of co-accused and other witnesses that he himself drove the jeep and left it there along with the bomb. It is also clear that he was aware of the entire conspiracy and was very close to A-1. He actively participated in landings, smuggling of arms and ammunitions, making of bombs and planting the bomb at Century Bazaar. The evidence given by the doctors and the family members of the deceased shows the extent of suffering that was inflicted by A-11 and the other accused in pursuance of the said conspiracy. The quantity of RDX that was used in blasts clearly shows and establishes the fact that the blasts were intended to tear the economic, moral and social fabric of the nation and to induce communal tensions. The planning, timing and the intensity of the blasts establish that the blasts were synchronised so as to cause maximum damage to life and property and the involvement of the appellant in the entire conspiracy was of great importance as he was himself involved in the landing of arms and ammunitions and even planted the jeep with a bomb which exploded in Century Bazaar.
378. In view of the above, we hold that the prosecution has produced sufficient evidence to bring home the charges framed against him.
Parvez Nazir Ahmed Shaikh (A-12) v. The State of Maharashtra Thr. CBI-STF, Mumbai
Criminal Appeal No. 897 of 2008
Judgement
379. Ms. Farhana Shah, learned counsel appeared for the appellant (A-12) and Mr. Gopal Subramanium, learned senior counsel, duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel for the respondent.
380. The instant appeal is directed against the final judgment and order of conviction and sentence dated 21.09.2006 and 18.07.2007 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, BBC Case No. 1/1993.
Charges:
381. A common charge of conspiracy was framed against all the co- conspirators including the appellant (A-12). The relevant portion of the said charge is reproduced hereunder:-
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (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.
381.1 In addition to the abovesaid principal charge of conspiracy, the appellant was also charged on the following counts:
At head secondly; He abetted and knowingly and intentionally facilitated the commission of terrorist acts and acts preparatory to terrorist acts by doing the following overt acts:
i) He along with co-conspirators participated in the landing and transportation of arms, ammunition and explosives at Shekhadi on 3rd and 7th February, 1993;
ii) He participated in training in handling and use of arms, ammunition and handgrenades on the outskirts of village Sandheri and Borghat;
iii) He along with co-conspirators participated in preparation of vehicle bombs in the night of 11th/12th March, 1993 at Al-Hussaini Building;
iv) He participated in the transportation of arms, ammunition, handgrenades and electric detonators from Jogeshwari to Musafirkhana with co-accused Ashrafur Rehman Azimulla Sheikh @ Lalloo and Smt. Ruksana Mohammed Shafi Zariwala and thereby having committed an offence punishable under Section 3(3) of the TADA.
At head thirdly; He drove scooter bearing registration no. MP-14-B-5349, laden with RDX explosives and fitted with time device detonator and parked the said vehicle at Katha Bazaar, opposite Maturchhaya Building, PS Pydhonie, Bombay which exploded resulting in death of 4 persons, injuring 21 others and causing loss of properties worth Rs. 37 lakhs and thereby committed offences punishable under Section 3(2)(i) and (ii) of TADA.
At head fourthly; For the aforesaid act mentioned in charge thirdly, the appellant has committed an offence punishable under Section 302 IPC.
At head fifthly; For the aforesaid act mentioned in charge thirdly, the appellant committed an offence punishable under Section 307 IPC by injuring 21 persons.
At head sixthly; The appellant (A-12), by causing the aforesaid explosion, which resulted in grievous hurt to 10 persons, committed an offence punishable under Section 326 IPC.
At head seventhly; The appellant (A-12), by causing the aforesaid explosion and voluntarily causing hurt to 11 persons, committed an offence punishable under Section 324 IPC.
At head eighthly; The appellant (A-12), by causing the aforesaid explosion, caused damage to properties worth Rs. 37 lakhs, committed an offence punishable under Section 435 IPC.
At head ninthly; The appellant (A-12), by causing the aforesaid explosion, caused damage to the property used as dwelling house and as places for custody of property committed an offence punishable under Section 436 IPC.
At head tenthly; The appellant (A-12), by causing the aforesaid explosion, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.
At head eleventhly; The appellant (A-12), by causing the aforesaid explosion, committed an offence punishable under Section 4 (a)(b) of the Explosive Substances Act, 1908.
At head twelfthly; The appellant (A-12), by possessing RDX without licence which was filled in the above mentioned scooter, which was used for causing the aforesaid explosion, committed an offence punishable under Section 9B(1)(b) of the Explosives Act, 1884.
At head thirteenthly; The appellant (A-12), planted an explosive laden suitcase in Room No. 1840 of Hotel Sea Rock on 12th March, 1993, which exploded causing damage to the property to the tune of Rs. 9 crores and thereby committed an offence punishable under Section 3(2)(ii) of TADA.
At head fourteenthly; The appellant (A-12), by causing the aforesaid explosion committed an offence punishable under Section 307 IPC.
At head fifteenthly; The appellant (A-12), by causing the aforesaid explosion in Hotel Sea Rock by using explosives committed an offence punishable under Section 436 IPC.
At head sixteenthly; The appellant (A-12), by causing the aforesaid explosion in Hotel Sea Rock which resulted in damage to the properties worth Rs. 9 crores, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.
At head seventeenthly; The appellant (A-12), by causing the aforesaid explosion in Hotel Sea Rock committed an offence punishable under Section 4 (a)(b) of the Explosive Substances Act, 1908.
At head eighteenthly; The appellant (A-12), by possessing explosives without licence, committed an offence punishable under Section 9B (1)(b) of the Explosives Act, 1884.
382. The Designated Judge found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the above said charges as follows:
Conviction and Sentence:
(i) The appellant has been convicted and sentenced to death under Section 3(3) of TADA and Section 120-B of IPC read with the offences mentioned in the said charge. In addition, the appellant was ordered to pay a fine of Rs. 25, 000/-. (charge firstly)
(ii) The appellant was further found guilty for the offence punishable under Section 3(3) of TADA for commission of such acts as found proved from clauses a and c from charge at head secondly framed against him and on said count the appellant (A-12) was convicted and sentenced to suffer RI for 12 years and is ordered to pay a fine of Rs.50,000/-, in default of payment of fine, was ordered to suffer further RI for a period of 1 year. (charge secondly)
(iii) The appellant was further found guilty for the offence punishable under Section 3(2)(i) of TADA for commission of such acts as found proved from charge at head thirdly framed against him and on said count he was convicted and sentenced to suffer punishment of death, subject to confirmation of the same by this Court, and is also ordered to pay a fine of Rs.25,000/-. (charge thirdly)
(iv) The appellant was further found guilty for the offence punishable under Section 302 IPC for commission of such acts as found proved from charge at head fourthly framed against him and on the said count he was convicted and sentenced to suffer punishment of death, subject to confirmation of the same by this Court, and is also ordered to pay a fine of Rs.25,000/-. (charge fourthly)
(v) The appellant was further found guilty for the offence punishable under Section 307 IPC for commission of such acts as found proved from charge at head fifthly framed against him and on the said count he was convicted and sentenced to suffer RI for life and is ordered to pay a fine of Rs.25,000/-, in default of payment of fine, he was ordered to suffer further RI for a period of 6 months. (charge fifthly)
(vi) The appellant was further found guilty for the offence punishable under Section 324 IPC for commission of such acts as found proved from charge at head seventhly framed against him and on the said count he was convicted and sentenced to suffer RI for 3 years. (charge seventhly)
(vii) The appellant was further found guilty for the offence punishable under Section 435 IPC for commission of such acts as found proved from charge at head eighthly framed against him and on the said count he was convicted and sentenced to suffer RI for 7 years and was ordered to pay a fine of Rs.25,000/-, in default of payment of fine, he was ordered to suffer further RI for a period of 6 months. (charge eighthly)
(viii) The appellant (A-12) was further found guilty for the offence punishable under Section 436 IPC for commission of such acts as found proved from charge at heady ninthly framed against him and on the said count he was convicted and sentenced to suffer RI for 5 years and was ordered to pay a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months. (charge ninthly)
(ix) The appellant was further found guilty for the offence punishable under Section 3 of the Explosive Substances Act, 1908 for commission of such acts as found proved from charge at head tenthly framed against him and on the said count he was convicted and sentenced to suffer RI for 10 years and was ordered to pay a fine of Rs.25,000/-, in default of payment of fine, he was ordered to suffer further RI for a period of six months. (charge tenthly)
(x) The appellant was further found guilty for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908 for commission of such acts as found proved from charge at head eleventhly framed against him and on the said count he was convicted and sentenced to suffer RI for 7 years and is ordered to pay a fine of Rs.25,000/-, in default of payment of fine, he was ordered to suffer further RI for a period of 6 months. (charge eleventhly)
(xi) The appellant was further found guilty for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884 for commission of such acts as found proved from charge at head twelfthly framed against him and on the said count he was convicted and sentenced to suffer RI for two years. (charge twelfthly)
(xii) The appellant was further found guilty for the offence punishable under Section 3(2)(ii) of TADA for commission of such acts as found proved from charge at head thirteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for life and was ordered to pay a fine of Rs.1,00,000/-, in default of payment of fine, was ordered to suffer further RI for a period of 3 years. (charge thirteenthly)
(xiii) The appellant was further found guilty for the offence punishable under Section 307 IPC for commission of such acts as found proved from charge at head fourteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for 10 years and was ordered to pay a fine of Rs.1,00,000/-, in default of payment of fine, was ordered to suffer further RI for a period of 3 years. (charge fourteenthly)
(xiv) The appellant (A-12) was further found guilty for the offence punishable under Section 436 IPC for commission of such acts as found proved from charge at head fifteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for 10 years and was ordered to pay a fine of Rs.1,00,000/-, in default of payment of fine, was ordered to suffer further RI for a period of 3 years. (charge fifteenthly)
(xv) The appellant (A-12) was further found guilty for the offence punishable under Section 3 of the Explosive Substances Act, 1908 for commission of such acts as found proved from charge at head sixteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for 7 years and was ordered to pay a fine of Rs.25,000/-, in default of payment of fine, was ordered to suffer further RI for a period of 6 months. (charge sixteenthly)
(xvi) The appellant was further found guilty for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908 for commission of such acts as found proved from charge at head seventeenthly framed against him and on the said count, he was convicted and sentenced to suffer RI for 7 years and was ordered to pay a fine of Rs.25,000/-, in default of payment of fine, was ordered to suffer further RI for a period of 6 months. (charge seventeenthly)
(xvii) The appellant was further found guilty for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884 for commission of such acts as found proved from charge at head eighteenthly framed against him and on the said count he was convicted and sentenced to suffer RI for two years. (charge eighteenthly)
Evidence:
383. The evidence against the appellant (A-12) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimonies of prosecution witnesses including eye witnesses; and
(iv) documentary evidence.
Conspiracy:
384. 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 cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstance. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer the same once again.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
385. Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.), by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The facts emerge from his confessional statement are as under:
i) The appellant (A-12) was introduced to Tiger by Abdul Gani Ismail Turk (A-11).
ii) The appellant (A-12) was told by A-11 that his (A-12) job was to bring and deliver the Hawala money. Tiger Memon told the appellant to work with honesty.
iii) In Tigers office, the appellant (A-12) came across Asgar Yusuf Mukadam (A-10), Shafi (AA), Rafiq Madi (A-46), Anwar Theba (AA), Imtiyaz Yunusmiyan Ghavate (A-15), Salim Rahim Shaikh (A-52), Mohd. Hussian, Mohammed Mushtaq Moosa Tarani (A-44) and Haneef (A-40) and also came to know that Tiger was a smuggler of silver.
iv) In the last week of January, 1993, the appellant (A-12) accompanied A-15 to the Tigers residence from where they, along with Tiger and other associates, left for Shekhadi for landing of smuggled items.
v) The landing took place after three days. Meanwhile, the appellant (A-12) and others stayed at Vesava Hotel at Mahad and also at Hotel Big Splash, Alibaug.
vi) On the 4th day, landing took place at Shekhadi. The appellant and some other boys were asked to wait for A-11 at the Tower. Thereafter, Tiger Memon came there along with a motor lorry which was loaded with goods. All the boxes in the lorry were unloaded at the Tower. The appellant and others opened the boxes and found that they were containing hand grenades, bullets, revolvers and wire bundles. Thereafter, some goods were loaded in the cavities of the Jeeps and the remaining goods were loaded in the lorry.
vii) The appellant (A-12) along with Nasir Abdul Kader Kewal @ Nasir Dhakla (A-64), drove a Jeep and stayed at Khandala as instructed by Tiger. A-64 left for Bombay as his daughter was sick. Tiger instructed the appellant (A-12) to stay there and told him that Suleman Mohammed Kasam Ghavate (A-18) will come in the morning. Accordingly, A-18 and A-15 came to Khandala and all of them left for Bombay.
viii) At the time of opening of goods at the Tower, Tiger showed a pencil like item to all of them and told that it was worth Rs.25,000/- and he could blow one Hotel Oberoi with it.
ix) In the second week of February, 1993, the appellant again went with Tiger Memon and other accused persons to Shekhadi coast and was present there at the time when the goods were unloaded and re- loaded in the tempo. Thereafter, he went to the Tower along with other accused persons.
x) On 15th/16th February, 1993, the appellant along with A-10 went to the Tigers residence at Al-Hussaini Building where Shafi distributed Rs.10,000/- to everyone present there.
xi) On 11th March, on the instructions of Tiger, the appellant along with A-10, carried two suitcases, two hand bags and one big suitcase to Room No. 17 of Musafirkhana where he found that one bag was containing AK-56 rifles and another bag was having hand grenades in it. Thereafter, they went to the house of Shafi.
xii) The appellant (A-12) and Shafi then went to Shafis sister-in-laws house at Jogeshwari in a jeep where wife of Shafi (Rukhsana) (A-103) was also present. Shafi kept 2 AK-56 rifles and some hand grenades in one bag and pistols in another bag.
xiii) The appellant (A-12) and others carried both the bags and left in a Jeep and Shafi dropped them at Mahim and asked them to go to his house. Thereafter, they went to the house of Shafi and left both the bags there.
xiv) The appellant (A-12) drove Shafis scooter and reached Al-Hussaini Building.
xv) At Al-Hussaini Building, the appellant saw that the accused persons were filling the black coloured chemical into the cars, scooters and Jeeps which was smuggled on 03.02.1993 at Shekhadi,.
xvi) The appellant also assisted the co-accused persons in filling RDX in vehicles.
xvii) The appellant, A-10 and Shoaib were asked by Anwar Theba (AA) to dispose off 5/6 plastic bags containing the empty cardboard boxes in which black soap was packed.
xviii) On return to Tigers residence, the appellant along with Asgar and Shoaib picked up three suitcases which were kept in the garage and reached Anwars residence in a red coloured Van where they met Anwar Theba (AA) and Mushtaq (A-44). A-15 also joined them later.
xix) Anwar Theba (AA) and Mushtaq (A-44) sat in the Van and left towards Link Road. On the way, Anwar Theba (AA) opened the bags and inserted the pencil like articles into the chemical filled therein and then closed the same.
xx) After reaching Link Road, Anwar Theba (AA) instructed A-12 to take one bag and keep it in Room No. 1840 of Hotel Sea Rock.
xxi) Accordingly, the appellant kept the said explosive-laden bag in the said room and reached the Al-Hussaini Building and handed over the keys of the said room to Anwar.
xxii) Thereafter, Anwar handed over an old blue coloured Bajaj Scooter to the appellant and asked him to park it in Katha Bazaar. Before leaving, Anwar Theba (AA) further inserted the said pencil into the black chemical which was filled in the scooter. The appellant parked the scooter at Katha Bazaar and took away the keys of the scooter with himself.
xxiii) On 12.03.1993, When Asgar and Shoaib came to the house of the appellant (A-12), he then handed over the keys of the scooter which he had parked at Katha Bazaar to Asgar.
xxiv) He knew that the explosions were for taking revenge for demolition of Babri Masjid against Hindus. He knew that the explosion would cause huge loss to human lives and properties and he intentionally committed this mistake.
386. On perusal of the aforesaid confessional statement, the followings facts emerge:
i) The appellant (A-12) was a trusted confidant of Tiger Memon since he was assisting him in crime relating to Hawala transaction and was well acquainted with other co-conspirators;
ii) He participated in the landing of arms and ammunitions and explosives and was fully aware of the nature and capacity of such material which is clear from the demonstration given by Tiger and as stated by the appellant (A-12) that a pencil like thing was good enough to blow the Oberoi Hotel;
iii) He participated in the transportation and storage of such material;
iv) He participated in filling of RDX in the vehicles parked in the garage of Al-Hussaini building;
v) He planted the suitcase in Hotel Sea Rock knowing that it contains RDX and is fitted with time pencil detonator; and
vi) He parked the scooter laden with black chemical and fitted with time pencil detonator at Katha Bazaar.
Retraction Statement:
387. It was contended on behalf of the appellant (A-12) that since he subsequently retracted from his own confession dated 11.01.1994, the same cannot be relied upon. Since we have elaborately discussed the admissibility or otherwise of the retraction statements in the earlier part of our judgment, there is no need to refer the same once again. The said conclusion will be applicable to this appeal also.
Confessional Statements of co-accused:
388. Apart from his own confession, the involvement of the appellant 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 Mohammed Soaib Mohammed Kasam Ghansar (A-9)
388.1 Confessional statement of A-9 under Section 15 of TADA has been recorded on 19.04.1993 (13:10 hrs.) and 22.04.1993 (00:30 hrs.), by Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A-9 with reference to A-12 has stated as under:
i) The appellant (A-12) was working for Tiger Memon and he used to visit his shop occasionally.
ii) The appellant (A-12) along with other accused persons was working in the garage at Al-Hussaini.
iii) A-12 and A-10, on the instructions of Anwar Theba (AA), threw away six big plastic bags in the wastage van of BMC.
iv) In the morning of 12.03.1993, A-12 and A-10 brought out three VIP bags from the garage at Al-Hussaini Building and put them in the Van and left for the residence of Anwar.
v) Anwar Theba (AA) inserted pencil of steel into the blackish chemical inside the bags and then the appellant was dropped near a taxi and was asked to go to Hotel Sea Rock with a bag.
vi) The appellant came back to the Al-Hussaini building.
(vii) After the blast, A-10 and A-9 went to the house of the appellant on 13.03.1993.
Confessional Statement of Asgar Yusuf Mukadam (A-10)
388.2 Confessional statement of A-10 under Section 15 of TADA has been recorded on 23.04.1994 (18:00 hrs.), by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-10 with reference to the appellant has stated as under:
i) The appellant was dealing with Hawala money.
ii) The appellant was present at Tigers residence.
iii) A-10 and A-12 took Rs. 5 lakhs from Choksi (A-97) and gave it to Sharif Abdul Gafoor Parkar @ Dadabhai (A-17).
iv) The appellant assisted him in collecting Rs. 1 crore from Choksi (A-97) for Yakub Abdul Razak Memon (A-1).
v) The appellant accompanied him to the Tigers residence and shifted two VIP bags, one hand bag and one briefcase from Tigers residence to Room No.17 of the Haj Committee House, near Crawford Market.
vi) The appellant accompanied him (A-10) to the house of Shafi and took a new scooter from his residence.
vii) The appellant (A-12) along with other co-accused persons was present at the Al-Hussaini building in the night intervening between 11/12th March and was loading black chemical in the vehicles.
viii) A-10 and A-12 disposed off the plastic bags in which the empty boxes of chemicals were kept.
ix) The appellant was present along with him when Anwar Theba (AA) inserted aluminum like pencils into the chemical filled in the suitcases.
x) The appellant was dropped by the accused (A-10) on the instructions of Anwar Theba (AA) with one of the said VIP bag.
(xi) The appellant (A-12) came back to Al-Hussaini building, thereafter, as per the instructions of Anwar, he drove one scooter loaded with RDX to park it at the designated place.
Confessional Statement of Abdul Gani Ismail Turk (A-11)
388.3 Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 (22:35 hrs.) and 18.04.1993, by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A-11 with reference to the appellant has stated that:
i) The appellant (A-12) was present at the residence of Tiger Memon on or about 27/28th January along with co-accused Shafi, Yakub Abdul Razak Memon (A-1), Rahim Yakub Memon, Rafiq Madi (A-46) and Imtiyaz Yunusmiyan Ghavate (A-15), whereafter, all of them (except Yakub and his wife) left for Mhasla/Shekhadi.
ii) The appellant (A-12) was present at Al-Hussaini on 11.03.1993 and was filling chemical @ black soap in the vehicles along with the co-accused.
Confessional Statement of Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14)
388.4 Confessional statement of A-14 under Section 15 of TADA has been recorded on 17.04.1993, by Shri P.K. Jain, the then DCP, Zone III, Bombay. A-14 with reference to the appellant stated that the appellant along with Tiger Memon and others came to Shekhadi for landing of arms. Confessional Statement of Imtiaz Yunusmiyan Ghavate (A-15)
388.5 Confessional statement of A-15 under Section 15 of TADA has been recorded on 07.05.1993 (12:30 hrs.) and 09.05.1993 (13:30 hrs.), by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-15 with reference to the appellant stated the following:
i) The appellant worked in the office of Tiger Memon.
ii) The appellant participated in the landing at Shekhadi.
iii) The appellant arrived at Anwars house in the morning of 12.03.1993 along with A-10.
iv) Thereafter, the appellant reached Al-Hussaini building.
v) The appellant drove a scooter filled with black coloured soap like chemical at the instance of Anwar Theba (AA).
389. On perusal of the aforesaid confessions of the co-accused, it is clearly discernible that the appellant knowingly participated in doing the following overt acts:
i) The appellant was a trusted confident of Tiger Memon since he was assisting him in crime relating to Hawala transactions and was well acquainted with other co-conspirators.
ii) The appellant participated in the landing of arms and ammunitions and explosives and was fully aware of the nature and capacity of such material.
iii) The appellant participated in transportation and storage of such material.
iv) The appellant was involved in filling of RDX in the vehicles parked in the garage of the Al-Hussaini building.
v) The appellant planted suitcase in Hotel Sea Rock knowing that it contains RDX and is fitted with time pencil detonator.
vi) The appellant parked the scooter laden with black chemical on the instructions of Anwar.
390. It is also clear that the confessions made by the appellants 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.
Deposition of Prosecution Witnesses:
Blast at Katha Bazaar
Deposition of Laxman Dhondu Posture (PW-8)
391. PW-8 was working as a peon in the office of Chemical Corporation, Katha Bazaar. He is an eyewitness to the incident and has deposed as under:
i) The appellant parked the scooter on the road in front of the Matruchayya Building at Katha Bazaar. It was this scooter in which the bomb exploded.
ii) PW-8 identified the appellant before the court in the dock as the person who parked the said scooter.
iii) PW-8 identified the appellant in the identification parade conducted by Moreshwar Thakur (PW-469), Special Executive Magistrate, on 13.05.1993, in Sitaram Building.
iv) PW-8 further deposed that his employers scooter was also parked next to the scooter parked by the appellant which was blown into pieces.
Deposition of Abdulla Ibrahim Shaikh (PW-9)
391. PW-9 was a driver working with one Mr. Mehra, whose office was on the third floor of AGH Chambers which is opposite to Matruchayya building:
i) PW-9 deposed that on 12.03.1993, a boy was trying to park a scooter adjacent to his employers car.
ii) PW-9 told the driver of the scooter not to park it there since it would be difficult for him to take out his car.
iii) PW-9 further deposed that on this the driver of the scooter told him that he will leave in a while and parked his scooter there itself.
iv) While parking the scooter, the appellant even lost his balance and was about to fall on the car then he helped the driver of the scooter to park it.
v) PW-9 stated that after sometime he heard the sound of a big explosion and saw that his car was completely burnt.
vi) PW-9 identified the appellant (A-12) before the Court as the boy who parked the said scooter which exploded.
vii) PW-9 also identified the appellant in the identification parade conducted on 21.03.1993 at 4.30 p.m. by PW-462 at Sacred Heart School.
392. On perusal of the depositions of PWs-8 and 9, it is clearly established that on 12.03.1993, the appellant parked the scooter at Katha Bazaar, opposite to Matruchhaya Building which later exploded. The appellant was duly identified by PWs 8 & 9 before the Court and also during the identification parade conducted by the Special Executive Magistrate. The above depositions also sufficiently corroborate the confessional statement made by the appellant that he parked a scooter laden with explosives at Katha Bazaar.
Deposition of Vasant Ganpat Kamble (PW-462)
392.1 At the relevant time, PW-462 was the Special Executive Magistrate (SEM) who conducted the Test Identification Parade for the identification of the appellant. He deposed as under:
i) He conducted the Test Identification Parade on 21.03.1993 for PW-9.
ii) He further deposed that PW-9 duly identified the appellant (A-12).
iii) The witness proved the panchnama of the parade which was prepared by him and is marked as Exh. 1478.
Deposition of Moreshwar Thakur (PW-469)
392.1 At the relevant time, PW-469 was the Special Executive Magistrate who conducted the Test Identification Parade for the identification of the appellant-A-12. He deposed as under:
i) PW-469 conducted the Test Identification Parade on 13.05.1993 at Sitaram Building in the presence of two panchas and also prepared a panchnama for the said parade.
ii) PWs-8 and 9 identified the appellant as the person who parked the scooter at Katha Bazaar.
iii) PW-469 in his deposition proved the panchnama.
Deposition of Suresh Satappa Walishetty (PW-680)
392.3 PW-680 was the Investigating Officer at the relevant time in the case pertaining to blast at Katha Bazaar:
i) He deposed that the appellant made a statement before him that he was willing to make a voluntary disclosure which was reduced into writing by him.
ii) The appellant (A-12) led the police party to Room No. 63 on the ground floor of Railway Quarters from where he took out a white shirt from a trunk and handed over the same to the police. On inspection by the police, it was found that it contained black stains on both the sleeves.
iii) He deposed that he drew a recovery panchnama of the entire event.
iv) He deposed that on 31.05.1993, the appellant made another disclosure statement and led the police party and got his driving licence bearing No. MH-01-93-5023 issued on 17.02.1993 recovered from the house of his friend Mohd. Taufiq Naulakhiya resident of Hussain Rattan Chawl. The panchnamas for the entire event were also prepared.
v) Vide covering letter dated 28.06.1993, PW-680 sent the said shirt to the Chemical Analyzer.
vi) The report of the Chemical Analyser dated 16.07.1993 was received by him.
vii) He also deposed that one Raju Kodi (A-26) made a voluntary confession and led the police party to his shop and he took out a packet from a cupboard and handed over the same to the police party who opened it and found that it contained a registration certificate of Bajaj Scooter bearing No. MP-14-B-5349, Chassis No. MO-5-178695.
viii) He deposed that he prepared two panchnamas of the entire event.
392.4 The report of the Chemical Analyzer confirms the presence of the highly explosive RDX (Cyclonite) on the shirt recovered by the police party at the instance of the appellant (A-12). Thus it can safely be inferred that the appellant was present at the time of filling RDX in the vehicles and during the said process he had soiled his shirt.
Deposition of Sanjay Laxman Kadam (PW-530)
392.5 PW-530 was the API and had assisted PW-680 in the interrogation of the appellant on 31.05.1993. PW-530 confirms and corroborates the fact of the appellant (A-12) making a voluntary statement and, thereafter, leading the police party to the house of his friend Mohd. Taufiq from where his driving licence was recovered.
Deposition of Abdul Rauf (PW-525)
392.6 PW-525 was a police officer at Pydhonie, Police Station at the relevant time. He deposed that he inspected the place of occurrence in the presence of panch witnesses. He further deposed as under:
i) He seized chassis of a scooter and a part of the scooter which had burnt on the spot. The chassis bore the No. MO-5-178695.
ii) He seized the number plate of the scooter bearing No. MP 1B 5349.
iii) He also seized glass splinters and ashes from the spot.
iv) He deposed that he seized pieces of cloth and earth soaked with oil lying on the spot.
v) He also drew a spot panchnama which was proved by him.
Deposition of Ramesh G. Thakur (PW-64)
392.7 PW-64, an electrician working in Andheri, has deposed as a witness. The following facts have been established from his statement:
i) He is a panch witness.
ii) In his presence, A-26 made a voluntary statement.
iii) A-26 led the police party and the panch witness to his shop.
iv) In his presence, the police party pursuant to disclosure recovered the registration papers of Bajaj scooter.
Deposition of Shantilal Gandhi (PW-386)
392.8 PW-386 was involved in the preparation of ornaments of gold and owned a stall in Zaveri Bazaar. He deposed to the following effect:
i) He is a resident of Ratlam and after staying there he came to Bombay and worked at Zaveri Bazaar.
ii) He knows A-26 since 1983.
iii) Between 15-20th April, 1992 he went to Ratlam by train and before leaving, he met A-26.
iv) A-26 told him that since Kumbhmela was going on in M.P., he would get 50% off on purchase of scooters.
v) A-26 gave him Rs.20,000/- to purchase a scooter from Ratlam, M.P. in the name of P.B. Mali.
vi) He purchased the scooter for Rs.19,000/- from Ratlam in the name of P.B. Mali and gave his residential address as 53, Hatiram Darwaja.
vii) The Registration No. of the scooter was MP-14-B-5349.
viii) He then booked the scooter by train to A-26 from Ratlam.
392.9 Upon perusal of the evidence of PW-386, it is clearly established that he purchased the scooter at the behest of A-26 from Ratlam, MP in the fake name of P.B. Mali and A-26 paid the money for the said purchase. PW-386 also sent the registration papers to him which were subsequently recovered from his shop vide disclosure statement made by A-26.
Deposition of Pratapram Buraji Mali (PW-75)
392.10 He had his own business of making gold and silver ornaments and so also in the Share Market. He deposed as under:
i) He knew Raju Kodi (A-26) for the last ten years.
ii) He had seen Raju Kodi driving a blue coloured scooter of Bajaj Company.
iii) He had not booked any scooter in his name.
392.11 On perusal of the aforesaid deposition, it is clearly discernible that the scooter was booked in the fake name which fact is also established from the deposition of PW-75.
Other Witnesses:
Depositions of Dharmendra Ratilal Parekh (PW-423) and Sadashiv Ganpat Ranmale (PW-429)
393. The above witnesses deposed about taking claim of the dead body of their brothers who succumbed to the injuries sustained during the blast at Katha Bazaar.
Deposition of Dr. Madhavrao Lalasaheb Lankeshwar (PW-478)
393. 1 PW-478 deposed about the fact that Hiten Ratilal Parikh, brother of PW- 423 died on account of burn injuries sustained by him. PW-478 also issued Medical Certificate explaining the cause of the death.
Deposition of Vijay Harishchandra Kelvekar (PW-479)
393.2 PW-479 deposed about the fact that Baburao Ganpat Ranmale, brother of PW-429, died on account of burn injuries sustained by him. He also issued Medical Certificate explaining the cause of the death.
Deposition of Faizan Khan (PW-372)
393.3 PW-372 deposed that Gulabi House owned by his company was damaged. He deposed that the damage estimated to the tune of Rs.25,000/-.
Deposition of Dinanath Ramchand Ramani (PW-373)
393.4 PW-373 deposed that he has an office at Vyapar Bhavan and due to the explosion at Katha Bazaar the glass panes of the windows in the bathroom and balcony were damaged.
Depositions of Suresh Shamrao Jathar (PW-617), Maheshwar Diwakar Datt Sharma (PW-616) and Anil Baburao Gorakshakar (PW-618)
393.5 All the abovesaid witnesses have proved the damage caused to the public property on account of explosion at Katha Bazar.
Deposition of Namdeo Yashwant Gole (PW-430)
393.6. PW-430 deposed that he sustained injuries on his leg and forehead due to which he became unconscious and was admitted in GT Hospital.
Explosion at Hotel Sea Rock:
Deposition of Premchand Pandhari Nath Garud (PW-23)
394. PW-23 was working as an attendant in the House Keeping Department of the said Hotel. He deposed as under:
i) A guest (A-12), carrying a biscuit coloured suitcase and a black shoulder bag checked in Room No. 1840 at about 12:15 hrs.
ii) The guest (A-12) was finding difficulty in opening the lock of the room so he assisted him in opening the door.
iii) The appellant asked him not to disturb as he was exhausted and wanted to sleep.
iv) Around 3 p.m., he heard a loud explosion due to which the said room was completely damaged and the lift also stopped working.
v) PW-23 identified the appellant before the Court in the dock.
vi) He also identified the appellant in the Test Identification Parade conducted by Vasant Kamble (PW-462) on 21.03.1993.
394.1 Deposition of Vasant Kamble (PW-462)
i) He is the SEM who conducted the TIP on 21.03.1993 for the identification of A-12 at Sacred Hearts School.
ii) A Panchnama of the parade was also prepared by him which is marked as Exh. 1478 and he also proved the same.
Deposition of Suresh K. Singh (PW-28)
394.2 t the relevant time, PW-28 was working as a bell boy in the said hotel.
i) On 12.03.1993, he offered help to the appellant (A-12) to carry his biscuit coloured suitcase and black coloured bag but he refused to take any help.
ii) After 10/15 minutes, he saw the appellant leaving the hotel without luggage.
(iii) He identified the appellant (A-12) in the Identification Parade dated 07.05.1993 conducted by Almedia, Special Executive Magistrate at Bandra Police Station in the presence of panch witness.
394.3 Deposition of Suresh Kumar Champalal Bhandari (PW-467)
i) He was the panch witness of the parade conducted by the SEM.
ii) He deposed that PWs-28 and 23 duly identified the appellant (A-12) in the Identification Parade conducted by SEM
iii) He deposed that a panchnama was prepared for the parade.
394.4 The above said evidence establishes the fact that the appellant (A-12) entered into the Room No. 1840 along with the luggage and after leaving the same in the said room, he went out of the hotel. Thereafter, a big explosion took place in the said room. Both PWs-23 and 28 have identified the appellant (A-12).
Deposition of Ms. Darive Nicholas Henriques (PW-279)
394.5 PW-279 was the Front Office Receptionist at Hotel Sea Rock at the relevant time and deposed that a person by name Domnic DSouza came to the hotel along with one more person to make an advance payment for Mr. Advanis reservation on 08.03.1993.
Deposition of Johnwin George Manavalan (PW-280)
394.6 PW-280 was working as a Cashier at Hotel Sea Rock and deposed of having accepted Rs.7,000/- on 08.03.1993 towards advance payment for reservation of the said room commencing from 11.03.1993, in the name of Mr. Advani. He further deposed that he issued receipt for the same.
Deposition of Valery DSouza (PW-620)
394.7 PW-620 was a Reservation Assistant at Hotel Sea Rock at the relevant time and deposed that on 08.03.1993, a person had come to confirm the check in of one Mr. Advani on 11.03.1993. She deposed that the said person deposited Rs.7,000/- with the cashier and completed the reservation formalities.
Deposition of Lorraine Gonsalves (PW-495)
394.8 A receptionist at Hotel Sea Rock testified as follows:
i) One person came to the desk and told that he has a booking in the name of Mr. Advani for Gorakhpur Metal Company.
ii) He gave the booking number.
iii) He also produced the receipt for advance payment.
iv) He was given a registration card in which he filled 108, Napean Sea Road, as his address.
v) After completing all the formalities, she allotted Room No. 1840 and handed over the keys of the said room to him.
Deposition of Dr. Manoj Jagatraj Virani (PW-107)
394.9 He was a doctor and residing at 100 AA, Sea View Bungalow. He deposed that no person by name Dominic DSouza or Advani stayed at 108 Napean Sea Road.
On perusal of the aforesaid evidence, it is established that Room No. 1840 was booked in a fictitious name.
Deposition of Dominic Anthony Martis (PW-333)
394.10 At the relevant time, PW-333 was working as a Security Assistant at Hotel Sea Rock and deposed about the explosion and damage caused due to it. He proved his complaint which culminated into a first information report about the said incident.
Deposition of Rajan Mayandy Natarajan (PW-437)
394.11 He was also a Security Officer at Hotel Sea Rock and he deposed about the scene after the blast. He further deposed about the inspection of the site conducted by PSI Bhagwan and proved the panchnama drawn by him.
Dastagir Mohamad Gavandi (PW-552)
394.12 PW-552 was a police officer and he deposed as under:
i) He inspected the site.
ii) PSI Bhagwan collected 7 to 8 samples from the room by drawing panchnama in the presence of panch witnesses.
iii) On 14.03.1993, he along with PW-531 again went to the Hotel with FSL experts who took some samples and handed over them to PW-531 vide panchnama Exh. 1826.
iv) On 19.03.1993, he sent three sealed packets vide covering letter to Chemical Analyzer through PW-531.
v) The chemical analyser report was received on 29.03.1993.
394.13 The report of the Chemical Analyser in this regard is clear that the samples sent for examination contained traces of high explosive RDX (Cyclonite) and nitrite.
Deposition of Bhaurao Takekar (PW-531)
394.14 PW-531 was a police officer and deposed that on 14.04.1993 he went to the Hotel along with Mandlik and Karnik, FSL experts and inspected the said room. The FSL experts collected samples and handed over to him. He deposed that he drew a panchnama and handed over the seized articles to PW-552. He further deposed that he handed over three sealed packets to FSL for opinion vide covering letter Exh. 1897.
Deposition of Ashok Hotchand Motwani (PW-419)
394.15 PW-419 was a Project Manager at Hotel Sea Rock and deposed about the monetary loss/damage caused to the hotel building owing to the explosion.
Other Recoveries at the behest of the appellant:
Deposition of Padmakar Bhosale (PW-43)
395. PW-43 is a hawker near Gandhi Market. He deposed that:
i) The appellant made a voluntary statement that he was in possession of the licence and the revolver of the Tiger Memon which he has kept in a black coloured pouch in a house.
ii) The appellant led the police party and the panchas to Railway Quarters, Andheri.
iii) The appellant took them behind his house and took out a black coloured pouch from the cavity of a fallen tree which contained a revolver loaded with six rounds and five loose rounds were also found, out of which, three were similar in number and two had different numbers inscribed on it.
iv) The police party seized the same and a panchnama was drawn by PW-506.
Deposition of Anil Prabhakar Mahabole (PW-506)
395.1 PW-506 was posted at Matunga Police Station as API. He deposed as under:
i) The appellant expressed his willingness to make a voluntary statement.
ii) He called for two panchas.
iii) He recorded the statement of the appellant (A-12) by drawing the panchnama.
iv) The appellant (A-12) led the police party and the panchas to Railway quarters.
v) The appellant (A-12) then took the police party behind his house and from the cavity of a fallen tree pulled out a pouch.
vi) The said pouch contained one old cobra brand loaded revolver and five loose live cartridges.
396. It is contended by the counsel for the appellant (A-12) that there is no eye-witness to the incident of filling of RDX and as such the said incident has not been proved by the prosecution. It is clear from the confession of the appellant (A-12) and the confessions of other co-accused that the work of filling of RDX in vehicles and suitcases was carried out in the garage of the Al-Hussaini Building. We are also satisfied that sufficient evidence is available on record to substantiate the fact that the appellant (A-12) participated in filling RDX in vehicles in the night intervening 11th/12th March, 1993.
397. It is contended on behalf of the appellant that PW-8 saw a person parking the said scooter at Katha Bazaar from the window of his office which is at a distance of about 15-20 meters from the road and therefore, his statement should not be relied upon. It is further contended on behalf of the appellant (A-12) that the doctor who treated PW-8 of the injuries sustained by him in the blast has not been examined by the prosecution to corroborate the evidence of PW-8. The said contentions are also liable to be rejected since the scooter of PW-8s employer was parked close to the scooter parked by the appellant (A-12). It is normal human behaviour to look out for ones own vehicle or employers vehicle and accordingly, PW-8 was attentive and had a clear sight of the scooter. Thus, there was no difficulty in seeing the appellant parking the scooter which later exploded. Further, PW-8 has correctly identified the appellant (A-12) before the Court during the dock proceedings and also in the Test Identification Parade. In addition to the same, it is relevant to mention that PW-8 has been extensively cross-examined by the defence on the point that he was injured and he took treatment at Dr. Shahs Clinic and he withstood the cross-examination without being shaken. Therefore, the credibility of the evidence of PW-8 is not affected whatsoever.
398. It is contended on behalf of the appellant (A-12) that PW-530 had not obtained the signatures of panch witnesses upon the licence and/or that he had not recorded the Registration number of the vehicle in the Station Diary and that the panch witness was not a local panch witness and was from a place more than 100 kms. away. This submission is also liable to be rejected since PW-530 clearly explained the circumstances in which he had taken the said panch for the panchnama, i.e., the persons who were fetched by staff from Crawford Market. PW-530 in his deposition stated that the driving licence being a plastic card, he could not obtain the signatures on the same and the details of the driving licence having already been mentioned in the panchnama, he had not pasted the label of the signature of panch witness upon the same and that he had mentioned in the Station Diary the purpose of his visit and the persons accompanying him.
399. Finally, it is contended on behalf of the appellant (A-12) that the testimony of PW-28 should be disregarded since he failed to identify the appellant (A-12) before the Court. This contention of learned counsel is also liable to be rejected since PW-28 had correctly identified the appellant (A-12) during the test identification parade dated 07.05.1993 and he failed to identify him before the Court possibly because his testimony was recorded after about 2 years and 9 months, i.e. on 21.12.1995.
400. In view of the above said confessional statement of the appellant (A-12), the confessional statements of other co-accused persons, as also the eye-witnesses along with other witnesses duly examined by the prosecution and recoveries made, the charges framed against the appellant have been duly proved.
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