Asgar Yusuf Mukadam (A-10) and Shahnawaz Abdul Kadar Qureshi (A-29) Vs. The State of Maharashtra Thr. CBI
EmailAppeal: Criminal Appeal Nos. 637-638 of 2008
Petitioner: Asgar Yusuf Mukadam (A-10) and Shahnawaz Abdul Kadar Qureshi (A-29)
Respondent: The State of Maharashtra Thr. CBI-STF, Bombay.
Apeal: Criminal Appeal Nos. 637-638 of 2008
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3, 4, 5, 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 Conspiracy – Charges of – Accused AY (A10) and Q (A29) Evidence Confessional statements of accused AY and Q Said confession showing their implication in various activities with other accused Also statements corroborating each other Statements of other co-accused viz; Z (A32), MR (A46), U (A57), D (A64), MP (A100), G (A9), PN (A12), IY (A15), SA (A17), T (A44), BM (A96), MS (A97), P (A16), M (A23), MK (A24), AK (A36), F (A39), N (A49), S (A52), GM (A77), R (A94), I(A98), corroborating the confessions made by AY and Q Nothing to show if statements were not voluntary and truthful All safeguards carried out. Held that all charges including conspiracy, stand proved. (Paras 311-316 & 331)
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3, 4, 5, 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 Conspiracy – Charges of – Accused AY (A10) and Q (A29) Evidence Confessional statements of accused AY and Q Said confession showing their implication in various activities with other accused Also statements corroborating each other Statements of other co-accused viz; Z (A32), MR (A46), U (A57), D (A64), MP (A100), G (A9), PN (A12), IY (A15), SA (A17), T (A44), BM (A96), MS (A97), P (A16), M (A23), MK (A24), AK (A36), F (A39), N (A49), S (A52), GM (A77), R (A94), I(A98), corroborating the confessions made by AY and Q Nothing to show if statements were not voluntary and truthful All safeguards carried out. Held that all charges including conspiracy, stand proved. (Paras 311-316 & 331)
Sections 3, 4, 5, 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 Confession Reliability Confession made by AY (A10) and X (A29) Subsequently, those confessions retracted Many other co-accused retracted Confession recorded after following prescribed procedure. Subsequent retraction, held, is nothing but an after thought. (Para 317)
Sections 3, 4, 5, 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 Confession by accused AY and Q Statements truthful and voluntary Apart from that, implication of these two deposed by various witnesses Statements of approver also implicating them by corroborating not only their confessions but also of other co-accused and on material particulars His own statement corroborated by other evidence and hence credible Two accused identified by security guards of building, where maruti car was parked and exploded Site inspected and panchnamas prepared. Held that the evidence proves charges against these two accused persons. (Paras 318, 326, 331)
Sections 3, 4, 5, 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 Appreciation Blast on 12.3.1993 at about 3.14 PM at plaza Cine House Lot of police arrived No panchnamas prepared on that day, but prepared on 14.3.1993 Delay in recording panchnama Effect. Held that there were several explosions and state of panic was there. Scene was condoned off and protected. (Para 327)
Sections 3, 4, 5, 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 Appreciation Maruti van laden with RDX parked in front of building Accused AY and Q had parked Scene of crime duly inspected and panchnama prepared Various articles seized including number plate of Maruti van and its broken parts Both accused identified by security guards of Cinema Hall Plea that details of seized articles not mentioned and ownership of van not established Evidence already produced showing that one absconding accused purchased two vans from PWs and delivery was given Further plea that no evidence if two accused had driving license. Held that it has been established through evidence and confession that AY was driver of car. Hence charges stand proved.
Held:
It is contended on behalf of the appellants that no efforts were made by the prosecution or PW-557 to trace the ownership of the said Maruti Van. It is further contended with respect to PW-557 that, on inspection of the scene of offence and after effecting the seizure of articles therefrom, he did not mention the articles seized and certain details while drawing up the panchnama and thus his deposition cannot be relied upon. A perusal of the deposition of PW-557 reveals that he has duly inspected the scene of crime and carefully drawn up the panchnama (Exh. 1918) mentioning all the details. He has mentioned the details of all the articles seized by him therein, more particularly, the broken parts of the said Maruti van and the number plate bearing no. MFC 1972. Further, it is amply clear from the depositions of PWs-3 and 4 that the said Maruti van came inside the Plaza Cinema, they having seen the accused in the said van and it has been significantly proved that the appellants were inside the van and that it is the said van which caused the explosion. It has already been proved that the two Maruti Vans, one of blue and the other of red colour were purchased by Mohd. Shafi Jariwala (AA) from Suleman Lakdawala (PW-365) and Kailash Baheti (PW-342). Further, the number of blue Maruti Van is MH-13-D-385 but the number of red coloured Maruti was not known as it was not registered. The delivery of both these vans was given by PW-366 which was supplied by PW-365, who in turn delivered these vans to Shafi Jariwala. (Para 328)
It is contended on behalf of the appellants that no evidence has been brought on record to corroborate that the appellants had any driving licence. To this, prosecution pointed out that A-10 has been duly and properly identified as the driver of the said Maruti van by the eye- witnesses, viz., PWs-3 and 4. It has also been revealed by him in his own confessional statement as well as in the confessional statements of other co-accused that he drove the car to Plaza Cinema. Notwithstanding the absence of driving licence, it has been established that A-10 was driving the car. (Para 329)
In view of the above said confessional statements of the appellants (A-10 and A-29), the confessional statements of the other co-accused persons, deposition of prosecution witnesses, as also the eye-witnesses, viz., PWs-3 and 4 along with other witnesses duly examined by the prosecution, the charges framed against the appellants have been duly proved. (Para 331)
JUDGEMENT:
Judgment (Contd.)
306. Ms. Farhana Shah, learned counsel appeared for the appellants (A-10 and A-29) and Mr. Gopal Subramanium, learned senior counsel, duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel for the respondent.
307. The above-said appeals are directed against the final judgment and order of conviction and sentence dated 18.09.2006 and 19.07.2007 respectively, whereby the appellants (A-10 and A-29) have been sentenced to death by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No. 1/1993.
Charges:
308. A common charge of conspiracy was framed against all the co-conspirators including the appellants (A-10 and A-29). 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.
308.1 In addition to the aforesaid principal charge of conspiracy framed at head firstly, the appellants (A-10 and A-29) were also charged on other common counts which are summarized as under:
At head secondly; the appellants (A-10 and A-29), abetted and knowingly and intentionally facilitated the commission of terrorist acts and acts preparatory to terrorist acts by participating in the landing and transportation of arms, ammunition and explosives at Shekadi on 3rd and 7th February, 1993; by participating in the conspiratorial meetings at the residence of Nazir Ahmed Anwar Shaikh (AA) and Baya Moosa Bhiwandiwala (A-96) to chalk out the plans for commission of terrorist acts and by participating in the preparation of vehicle bombs at Al-Hussaini Building and collecting money from the co-accused Mulchand Shah for disbursement to various accused persons who were involved in criminal conspiracy and thereby committed an offence punishable under Section 3(3) of TADA.
At head thirdly; the appellants (A-10 and A-29), planted an explosive laden Maruti Van in the compound of Plaza Cinema on 12.03.1993, which exploded causing death of 10 persons, injuring 36 others and further damage to property worth Rs. 87 lakhs and thereby committed offences punishable under Section 3(2)(i) of TADA
At head fourthly; the appellants (A-10 and A-29), by causing the aforesaid explosion caused death of 10 persons and thereby committed an offence punishable under Section 302 IPC read with Section 34 IPC.
At head fifthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused hurt to 36 persons and thereby committed an offence punishable under Section 307 IPC read with Section 34 IPC.
At head sixthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused grievous hurt to 16 persons and thereby committed an offence punishable under Section 326 IPC read with Section 34 IPC.
At head seventhly; the appellants (A-10 and A-29), by causing the aforesaid explosion, voluntarily caused hurt to 27 persons and thereby committed an offence punishable under Section 324 IPC read with Section 34 IPC.
At head eighthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused damage to properties and thereby having committed an offence punishable under Section 435 IPC read with Section 34 IPC.
At head ninthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused damage to the property used as dwelling house and for custody of property and thereby having committed an offence punishable under Section 436 IPC read with Section 34 IPC.
At head tenthly; the appellants (A-10 and A-29), by causing the aforesaid explosion committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.
At head eleventhly; the appellants (A-10 and A-29), by causing the aforesaid explosion, committed an offence punishable under Section 4(b) of the Explosive Substances Act, 1908.
At head twelfthly; the appellants (A-10 and A-29) by possessing RDX in the said Maruti Van, 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-10), abetted and knowingly facilitated explosions at Hotel Sea Rock, Hotel Centaur and Airport Centaur and thereby committed an offence punishable under Section 3(3) of TADA.
At head fourteenthly; the appellant (A-10), travelled in the van MFC-1972 with the explosive laden suitcases and thereby committed the offences punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.
309. The Designated Judge found the appellants guilty on all the aforesaid charges. The appellants have been convicted and sentenced for the above said charges as follows:
Conviction and Sentence:
(i) The appellants have been 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 appellants were also ordered to pay a fine of Rs. 25,000/- each. (charge firstly)
(ii) The appellants (A-10 and A-29) were convicted and sentenced to RI for 9 years and 10 years respectively along with a fine of Rs.50,000/- each, in default, to further undergo RI for 1 year for commission of offence under Section 3(3) of TADA. (charge secondly)
(iii) The appellants have been sentenced to death, subject to confirmation of the same by this Court, along with a fine of Rs.25,000/- each, for the offence punishable under Section 3(2)(i) of TADA. (charge thirdly)
(iv) The appellants have been sentenced to death, subject to confirmation of the same by this Court, along with a fine of Rs 25,000/- each, for the offence punishable under Section 302 of IPC read with Section 34 of IPC. (charge fourthly)
(v) The appellants have been sentenced to RI for life along with a fine of Rs. 50,000/- each, in default, to further undergo RI for 1 year, for the offence punishable under Section 307 of IPC read with Section 34 of IPC. (charge fifthly)
(vi) The appellants have been sentenced to RI for 10 years along with a fine of Rs. 50,000/- each, in default, to further undergo RI for 1 year, for the offence punishable under Section 326 of IPC read with Section 34 of IPC (charge sixthly)
(vii) The appellants have been sentenced to RI for 3 years for the offence punishable under Section 324 of IPC read with Section 34 IPC. (charge seventhly)
(viii) The appellants have been sentenced to RI for 7 years along with a fine of Rs. 50,000/- each, in default, to further undergo RI for 1 year, for the offence punishable under Sections 435 and 436 of IPC read with Section 34 IPC. (charges eighthly & ninthly)
(ix) The appellants have been sentenced to RI for 10 years along with a fine of Rs. 25,000/- each, 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) The appellants have been sentenced to RI for 7 years along with a fine of Rs 25,000/- each, 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) The appellants have been sentenced to RI for 2 years for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. (charge twelfthly)
(xii) The appellant (A-10) has been sentenced to 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 3(3) of TADA. (charge thirteenthly)
(xiii) The appellant (A-10) has been sentenced to 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 Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fourteenthly)
Evidence:
310. The evidence against the appellants (A-10 and A-29) is in the form of:-
(i) their own confessions;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimonies of prosecution witnesses; and
(iv) documentary evidence.
Conspiracy
311. The object behind the conspiracy is the ultimate aim of it and many means may be adopted to achieve this ultimate object. The crime of conspiracy is complete the moment there is an agreement in terms of Section 120-A of IPC. However, where the conspiracy has in fact achieved its object and resulted in overt acts, all the conspirators in terms of the law explained hereinabove would be liable for all the offences committed in pursuance of the conspiracy on the basis of the principle of agency which is inherent in the agreement which constitutes the crime of conspiracy.
311. 1 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 Statements:
Confessional Statement of Asgar Yusuf Mukadam (A-10)
312. 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 brief summary of the confessional statement of A-10 is reproduced hereunder:
(i) He was working in the office of Tiger Memon (AA) and his job was to maintain an account of the Hawala money and the money received in the smuggling of gold and silver.
(ii) Due to riots in December, 1992, the office of Tiger Memon (AA) was closed which resumed on 17th December after the riots subsided. Again, on 6th January, 1993, his office was closed as the riots had resurfaced.
(iii) Anwar (AA) and Shafi (AA) always used to be by the side of Tiger Memon (AA). The smuggled silver used to be purchased by Raju Laxmichand Jain @ Raju Kodi (A-26).
(iv) The money received by Tiger Memon (AA) in the above transactions was kept in a Hathi account maintained by Tiger with Mulchand Sampatraj Shah @ Choksi (A-97). Whenever Tiger needed money he would either withdraw it himself or through A-10
(v) In January, 1993, A-10 had come to know from Anwar that Tiger was going to smuggle arms and ammunitions, explosive (Kala Sabun) and hand grenades.
(vi) On 10th/11th February, Yakub Abdul Razak Memon (A-1) directed A-10 to meet him in the evening. At about 6:30-7:00 p.m., A-10 visited the residence of A-1 at which time 3 tickets and 3 passports of Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Md. Farooq Mohammed Yusuf Pawale (A-16) and Salim Phansopkar were handed over to him and he was asked to pick them up from Midland Hotel and then drop them at the Airport for their journey to Dubai. Accordingly, A-10 carried out the said instructions and dropped the aforesaid three persons at the Airport after handing over their passports and tickets. The said tickets were for Dubai.
(vii) Next day, A-10 went to the Tigers residence on his instructions. There he saw Anwar Theba (AA), Shafi (AA), and A-12 standing outside the building. Thereafter, he met Tiger Memon and escorted him to the Airport where Rafiq Madi and Javed Chikna (AA) also arrived. Tiger left for Dubai along with Javed Chikna instructing A-10 to remain in contact with A-1 and in case of requirement of money to A-1 to get the same from A-97. A-10 was also told by Tiger that Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) was to be paid Rs. 5 lacs against the landing and that the same should be paid to him.
(viii) After Tigers departure, A-10 along with co-accused (A-12) collected Rs. 5 lacs from A-97 and handed over the said amount to A-17 at his residence in Juhu.
(ix) Next day, A-10 was instructed over the phone by A-1 to collect Rs. 1 crore from A-97 for him. A-10, with the help of the other co-accused, collected the said amount from A-97 and gave it to A-1.
(x) On A-1s instructions, on 17th or 18th February, A-10 along with other co-accused, viz., Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46) picked up Irfan Chougule (AA) from Paramount Hotel and A-29 and his companion from Bandra Reclamation and dropped them at the Airport.
(xi) On 9th March, A-1 directed A-10 to transfer Rs. 25 lacs from Tigers account to Iranis account and also Rs. 10 lacs to Ohalias account and the same was done by contacting Choksi (A-97) over the phone.
(xii) In the morning of 10th March, A-10 transferred Rs. 21 lacs from Tigers account to Iranis account by contacting Choksi (A-97) over the phone on the instructions of A-1.
(xiii) On 11th March, A-10, following the instructions of Tiger, picked up 2 VIP bags, 2 rexine shoulder bags and one briefcase from the garage at Tigers residence and carried them to Room No. 17 of the Haj Committee House near Crawford Market. Co-accused Parvez (A-12) also accompanied him. The key of the room was given by Tiger Memon.
(xiv) On the instructions of Shafi, A-10 took a new scooter from his residence and left it at the residence of Tiger.
(xv) On 11th March 1993, at about 11 p.m., following the instructions of Tiger, A-10 took two briefcases and went to the residence of Mobina @ Bayamoosa Bhiwandiwala (A-96) in Tigers Maruti Van bearing No. MFC- 1972, collected Tigers passport and ticket and reached the Airport along with his relative Md. Shoaib Md. Kasam Ghansar (A-9). There, A-9 checked-in his luggage and got the boarding pass issued. The remaining briefcase, passport and ticket were given to Tiger by A-10 on his arrival at the Airport at about 3.45 am. At the time of departure, Tiger instructed A-10 to follow the instructions of Anwar.
(xvi) On returning to Tigers residence, A-10 met co-accused Javed Chikna, Shafi, Gani, Parvez, Bashir, Usman and several others. He also saw one new Ambassador Car, one blue coloured Commander Jeep, 2 Maruti-800 cars (one blue and one white), 3 new Bajaj Scooters and 2 old Bajaj Scooters, all of which were parked there laden with black coloured chemical.
(xvii) While returning from the Al-Hussaini building along with A-9 and A-12, A-10 handed over the plastic bags which contained empty boxes of the said chemical to the attending staff of the garbage vehicle at Bandra Reclamation. Then, A-10 collected 3 VIP bags from Tigers garage and at that time A-9 and A-12 were also with him. They picked up Anwar from his residence in a vehicle. One more boy, namely, Mushtaq (A-44) also came along with Anwar. Anwar placed aluminium like pencils in the chemical contained in all the 3 bags. On Anwars direction, A-10 took the vehicle to Linking road and dropped Mushtaq (A-44), and also dropped Parvez and Anwar on the way with one VIP bag each and reached the Al-Hussaini Building, Mahim around 11:45-12:00 o clock at night.
(xviii) At the Al-Hussaini Building, Anwar Theba (AA), A-44 and A-12 joined A-10 within an hour. A-10 saw that Anwar picked up aluminum rod like pencils which were lying on the back seat of the vehicle and inserted them one by one in all the five scooters which were parked there.
(xix) Further, A-10 saw that on the instructions of Anwar Theba (AA), A-15, A-12, A-44 and a boy known to Javed Chikna took out the scooters one by one and left the place.
(xx) A-10 also saw that Anwar had individually briefed all of them about parking the said scooters.
(xxi) A-10 was asked by Anwar whether A-9 could drive a scooter and when he answered in the affirmative, Anwar asked A-10 to direct A-9 to park one scooter near Zaveri Bazaar. Following the said instructions, A-9 left with the fifth scooter.
(xxii) A-10 further noticed that at about 1:45 p.m., Usman arrived with a new red coloured Maruti Van in which two VIP bags were kept by the boys of Javed Chikna. A-10 was given the keys of the said vehicle by Anwar while those of Maruti Van bearing MFC-1972 were given by Anwar to Javed Chikna.
(xxiii) A-10 was directed by Anwar and Javed Chikna to park the said Maruti Van near the Plaza Cinema. On refusal by A-10 as he was scared, he was directed to take A-29 along with him. A-10 and A-29 took the red Maruti Van and parked it in the parking lot of the Plaza Cinema at about 2:15 p.m.
(xxiv) After sometime, A-10 heard the sound of a bomb blast while boarding a taxi hired at Dadar T.T. Both A-10 and A-29 arrived at Crawford Market where they both parted ways. After roaming around for 15-20 minutes in the market, he then took a local train from Churchgate and reached home.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
312. 1 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 and 21.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of his confession is reproduced hereunder:
(i) A-29 was a resident of Nargis Dutt Nagar Zhopadpatti, Bandra Reclamation Road, opposite the Telephone Exchange Bandra (W), Bombay.
(ii) A-29 was acquainted with Javed Chikna and Usman of Mahim since the last 3-4 years.
(iii) A-29 participated in the landing of smuggled goods at Shekhadi along with Javed Chikna, Shafi, Riyaz, Munna, Karimulla, Akbar, Anwar, Parvez, Imtiyaz, Yeda Yakoob, Dadabhai and others.
(iv) In the evening of 01.02.1993, Javed Chikna asked A-29 to accompany him to bring the smuggled goods of Tiger Bhai. He along with Javed, Usman, Nasir Dhakla and Shafi left in a blue coloured Commander Jeep. On the way, they met Riyaz along with 3 boys, namely, Munna, Karimulla and Akbar who were in a Maruti Van near a Hotel. Shafi and Munna discussed something and the Maruti Van followed their jeep.
(v) A-29 was acquainted with Tiger, who met there along with Anwar Theba (AA), A-12 and A-15. Tiger arranged for their stay in the hotel.
(vi) A-29 attended a meeting in a hotel on the way to Shekhadi, in which Tiger informed all the persons that he was bringing weapons to take revenge against Hindus.
(vii) A-29 actively participated in the unloading, reloading and opening of packets containing smuggled arms and ammunitions and explosives at the Waghani Tower.
(viii) A-29 travelled in a jeep containing arms etc. from Waghani Tower to Bombay along with Bashir Ahmed Usman Gani Khairulla (A-13) and Akbar.
(ix) A-29, at the instance of Javed, gave his own passport as well as of his friend Abdul Akhtar to Usman.
(x) A-29 reached Dubai along with Irfan Chaugule and Abdul Akhtar. They met Gul Mohammed @ Gullu Noor Mohammed Shaikh (A-77) at the Dubai Airport and were received by Ayub Memon. Anwar, Haji Yakoob, Nasir Dhakla, Bashir Muchhad and Mohd. Rafiq had already reached Dubai and met them at the place of their stay. Tiger Memon also met them there.
(xi) A-29 attended conspiratorial meetings in Dubai with Tiger Memon and others.
(xii) A-29 went to Pakistan from Dubai alongwith Yakub Yeda, Bashir Muchhad, Anwar, Nasir Dhakla, Gul Mohd., Mohammed Rafiq and Irfan Chougule for receiving training in arms and ammunitions. No immigration formalities were observed at the Airport while travelling to Pakistan.
(xiii) A-29 received training in handling of revolver, AK-47, AK-56 rifles, hand grenades and making of bombs with black chemical powder (RDX) and pencil bomb timer devices. The training was given by Pakistani Army Officers for about 10 days. Tiger Memon also attended the said training.
(xiv) After the training, A-29 returned to Dubai along with others without completing any immigration formalities in the same manner.
(xv) In Dubai, at the instance of Tiger Memon, he along with others took an oath by putting their hands on the holy Quran that they would take revenge for the atrocities committed on the community and would indulge in Jehad for Islam and they would not disclose anything about the training to any one and in the event of their arrest they would not disclose anything about others to the police.
(xvi) A-29 returned to Bombay from Dubai along with Nasim, Feroz Abdul Akhtar and Mohd. Rafiq.
(xvii) On the night of 11.03.1993, A-29 went to the flat of Tiger Memon and received Rs. 5,000/- from him. He also noticed that a number of boys were already present there.
(xviii) On 12.03.1993, A-29 was present in the Al-Hussaini building along with Javed Chikna, Bashir Muchhad, Bashir Mahimwala, Usman, Salim Dandekar, Zakir, Abdul Akhtar, Anwar, Shafi and 3-4 unknown boys. In his presence, Usman came there with one bag full of handgrenades. Javed Chikna distributed 3 to 4 hand grenades each to the boys standing there.
(xix) Two VIP suitcases were kept by Anwar in a red Maruti Van. A-29 was told by Anwar that the vehicle was filled with bombs and directed him to go along with A-10 and leave the vehicle at Plaza Cinema. Thereafter, he along with A-10 took the vehicle and reached Plaza Cinema at about 1:45 or 2:00 p.m. The security guards at Plaza Cinema asked something to A-10 and he parked the vehicle in one corner and came out from there, took a taxi and came to Bhendi Bazar side.
(xx) After the bomb blast, A-29 fled to Rampur and was later arrested by police from Indore.
313. From the above, it can easily be inferred that both the accused, viz., A-10 and A-29, apart from implicating themselves in various activities along with other accused persons, corroborate with each other. It is also clear that both the appellants were present at Tigers residence and went in a red coloured Maruti Van which was loaded with explosive substances and parked it in the compound of the Plaza Cinema which later exploded killing 10 persons and injuring 36 others.
Confessional Statements of co-accused:
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
314. Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs) and 19.05.1993 (17:30 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to the appellants (A-10 and A-29):
(i) On 11.02.1993, A-10 went to the Sahar Airport with Zakir Hussain, Saleem Dandekar, Parvez at the instance of Javed Chikna and handed over to them their passports and tickets for Dubai.
(ii) A-29 went to Pakistan by a PIA flight for the purpose of training.
(iii) A-29 attended conspiratorial meeting on 10.03.1993 at the residence of Mobina (A-96).
(iv) A-29 actively participated in the preparation of vehicle bombs in the Al-Hussaini building compound in the intervening night between 11/12.03.1993 by using RDX which had landed at Shekhadi.
Confessional Statement of Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A- 46)
314. 1 Confessional statement of A-46 under Section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs) and 24.04.1993 (21:25 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to the appellants:
(i) A-10 worked in the office of Tiger Memon.
(ii) On 12th February, 1993, A-10 accompanied Tiger Memon and other co- accused and went to the airport wherefrom Tiger and other co-accused left for Dubai.
(iii) On 18th February, A-10 along with A-46 picked up Irfan Chougule and other co-accused persons and dropped them at the Airport after handing over to them their passports and tickets to Dubai.
(iv) On 17th February, 1993, A-29 was dropped by the said accused and Anwar along with other accused persons for their departure to Dubai.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
314. 2 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. In the abovesaid confessional statement, the following references have been made to the appellants:
i) A-10 worked in the office of Tiger Memon.
ii) A-10 drove the explosives laden red Maruti Van along with A-29 from the Al-Hussaini Building on 12.03.1993.
iii) A-29 was present when Anwar Theba (AA) kept two RDX laden suitcases in the dickey of a red coloured Maruti Van and he (A-29) along with A-57 kept two packets of Kala Sabun in the dickey of the said Van. He further stated that the said van was taken by A-10 and A-29 accompanied by A-57 himself.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
314. 3 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. In the abovesaid confessional statement, the following references have been made to the appellants:
i) A-10 was present at the Al-Hussaini Building compound in the intervening night between 11th/12th March, 1993 when RDX was being filled in vehicles.
ii) A-29 participated in the first as well as second landing at Shekhadi.
iii) A-29 was present in Dubai when A-64 and others went there and attended conspiratorial meetings in Dubai.
iv) A-29 went to Pakistan by a PIA flight for training.
v) A-29 attended conspiratorial meeting on 10.03.1993 at the residence of Mobina.
vi) A-29 actively participated in preparation of vehicle bombs at the Al-Hussaini Building compound in the intervening night between 11/12.03.1993 by using RDX which had landed at Shekhadi.
Confessional Statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100)
314. 4 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (22:30 hrs.) and 17.04.1993 (17:00 hrs.), by Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. In the above said confessional statement, the following references have been made to the appellants:
i) A-29 participated in the training of fire arms and ammunitions at Islamabad, Pakistan along with his associates during February, 1993.
ii) A-29 was present at the residence of Tiger Memon in the intervening night between 11/12.03.1993 along with other co-accused.
Confessional Statement of Mohammed Shoaib Mohammed Kasam Ghansar (A-9)
314. 5 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 Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. In the above said confessional statement, the following references have been made to the appellant (A-10):
(i) A-9 and A-10 are both from the same village, i.e. Karda in District Ratnagiri.
(ii) A-9s elder sister is married to A-10s elder brother, Anwar.
(iii) A-10 told him that he works for Tiger and does the business of Hawala and smuggling of gold and silver.
(iv) A-9 obtained the boarding pass used by Tiger on 11.03.1993 at the request of A-10.
(v) A-10 was at the Airport to see off Tiger Memon before the blasts and he arranged for his boarding pass.
(vi) A-10 and A-9 came back to the Al-Hussaini building after dropping Tiger on 11.03.1993. At that time, co-accused persons were filling chemicals in the vehicles as told to him (A-9) by A-10.
(vii) A-10 was driving the Maruti Van on 12.03.1993 and he dropped the co-accused sitting in the Van at a taxi stand to go to Hotel Sea- Rock, Bandra and Centaur Hotel near Airport.
(viii) A-10 gave a scooter to A-9 for parking the same at Zaveri Bazaar intersection.
ix) A-9 met A-10 on 13.03.1993 after the blasts.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
314. 6 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. In the above said confessional statement, the following references have been made with regard to A-10:
i) A-10 was working in the office of Tiger Memon.
ii) A-12 was also working in Tigers office along with A-10 and other associates to help him in Hawala transactions as well as in the landing of smuggled silver.
iii) On 15th/16th February, 1993, A-10 along with A-12 went to the residence of Tiger where they along with others were paid Rs.10,000/- by Shafi.
iv) On 11th March, 1993, at noon, A-10 and A-12 were given two small suitcases, two hand bags and one big suitcase by Tiger Memon which were taken by them to room No.17 of Musafirkhana in which one bag was containing AK-56 rifles while the other was containing hand grenades.
v) On the night of 11th March, A-10 was assisting Gani and others in the filling of black soap into the secret cavities of the vehicles.
vi) At the time of leaving for home, A-10 along with A-12 and A-9 were given 5 plastic bags in which the chemicals were kept which were thrown by them into the wastage van of BMC.
vii) A-10 along with A-12 and A-9 carried three suitcases in a van to the residence of Anwar. From there, Anwar and A-44 joined them. Anwar inserted three timer pencils in each of the said suitcases.
viii) After the blast, on 13.03.1993, A-10 met A-12 and A-9 and received the keys of the scooter which was planted by A-12 at Katha Bazaar.
Confessional Statement of Imtiaz Yunusmiyan Ghavate (A-15)
314. 7 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 the above said confessional statement, the following references have been made with regard to A-10:
i) While working for Tiger, A-15 delivered money to various people on the instructions of A-10.
ii) A-10 was managing the delivery of Hawala money in India.
iii) Tiger with A-10 and other co-accused persons was also involved in selling smuggled silver.
iv) A-10 was seated in the Maruti Van No. MFC 1972 in the morning of 12.03.1993 along with A-15.
Confessional Statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)
314. 8 Confessional statement of A-17 under Section 15 of TADA has been recorded on 18.04.1993 (00:15 hrs.) and 20.04.1993 (02:50 hrs.) by Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. In the above said confessional statement, a reference has been made to A-10 that he gave Rs. 5 lakhs to A-17 for the landing work.
Confessional Statement of Mohd. Mushtaq Musa Tarani (A-44)
314. 9 Confessional statement of A-44 under Section 15 of TADA has been recorded on 26.05.1993 (16:55 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made with regard to A-10:
i) On 12.03.1993, A-10 was driving a maroon coloured car which was carrying A-44 and other accused involved in planting bombs.
ii) A-44 again met A-10 around noon on 12.03.1993 at Tigers house.
Confessional Statement of Baya Musa Bhiwandiwala @ Mobina (A-96)
314. 10 Confessional statement of A-96 under Section 15 of TADA has been recorded on 30.04.1993 (18:00 hrs.) and 02.05.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-10:
i) A-10 worked for Tiger.
ii) A-10 took the tickets for Tiger to Dubai from Mobinas residence on 11.03.1993.
Confessional Statement of Mulchand Sampatraj Shah @ Choksi (A-97)
314. 11 Confessional statement of A-97 has been recorded on 14.05.1993 (20:55 hrs.) and 18.05.1993 (16:15 hrs.) by Vinod Balwant Lokhande (PW-183), the then DCP, Airport Zone. In the abovesaid confessional statement, the following references have been made to A-10:
i) A-10 @ Munna opened Tiger Memons Hathi account with A-97.
ii) A-10 (Munna) had been routinely operating Tiger Memons Hathi Account with A-97.
iii) All dealings with A-10 were done on the instructions of Tiger Memon.
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
314. 12 Confessional statement of A-16 under Section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) On 08.02.1993, A-16 along with others (including A-29) went to the spot of landing and assisted Tiger in landing of smuggled items containing 84 bags and in their transport to Bombay.
ii) A-29 attended the training of dismantling and handling of fire arms and bombs including chemical bombs as well as hand grenades in Pakistan and, thereafter, went to Dubai along with others.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
314. 13 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. In the above said confessional statement, a reference has been made to A-29 that he was present at Tigers house on the day of the blast.
Confessional Statement of Munna @ Mohammed Ali Khan @ Manojkumar Bhanwar Lal Gupta (A-24)
314. 14 Confessional statement of A-24 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 III, Bombay. In the above said confessional statement, a reference has been made to A-29. It was disclosed that A-29 actively participated in the landing and transportation of smuggled goods from Shekhadi coast to Waghani Tower where the packets containing arms and ammunitions and explosives were opened under the supervision of Tiger Memon.
Confessional Statement of Abdul Khan @ Yakub Khan Akhtar Khan (A-36)
314. 15 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-36 knew A-29 for many years.
ii) A-29 took A-36 to Dubai for training.
iii) Tiger told A-29 in Dubai that his ticket to Bombay was ready and that he should leave.
iv) A-29 loaded RDX in the vehicles on 11.03.1993.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
314. 16 Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. In the above said confessional statement, A-39 refers to A-29 that he received training in Pakistan.
Confessional Statement of Nasim Ashraf Shaikh Ali Barmare (A-49)
314. 17 Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (9:30 hrs) and 18.05.1993 by Shri Krishna Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-29 joined Nasim Barmare in Pakistan and received training in arms and ammunitions.
ii) In Dubai, they all were given inflammatory speech by Tiger Memon to take revenge against the atrocities upon the Muslims.
(iii) A-29 left Dubai along with other co-accused.
Confessional Statement of Salim Rahim Shaikh (A-52)
314. 18 Confessional statement of A-52 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-29 was one of the nine persons who underwent training in Pakistan. They were given training in use of hand-grenades, RDX and detonators.
ii) On 06.03.1993, after coming to Bombay, all the persons (including A- 29) underwent training in Pakistan and met at the residence of Tiger Memon in Bandra to discuss about the bomb blasts.
iii) Tiger gave Rs. 5,000/- to each person in another meeting at his flat next day where the persons who had gone for training were also present.
iv) On the night of 11.03.1993, A-52 saw several persons at Tigers flat at the Al-Hussaini building including A-29.
Confessional Statement of Gul Mohd. @ Gullu Noor Mohd. Shaikh (A-77)
314. 19 Confessional statement of A-77 under Section 15 of TADA has been recorded on 17.04.1993 (14:10 hrs.) and 19.04.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to A-29:
i) A-77 met A-29 in a Hotel room in Dubai.
ii) A-29 came to Pakistan with them for training.
Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
314. 20 Confessional statement of A-94 under Section 15 of TADA has been recorded on 14.05.1993 (18:30 hrs.) and 16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-29 was in Dubai with other co-accused.
ii) Tiger gave tickets to A-29 to fly to Bombay from Dubai.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh A-98
314. 21 Confessional statement under Section 15 of TADA has been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-29 joined him for training in Pakistan.
ii) On 01.03.1993, after others also reached Dubai, the co-accused (A-29), who had taken training in Pakistan at the instance of Tiger, took oath after placing his hands on holy Quran. He also heard about the speech given by Tiger regarding the riots in Bombay.
315. A perusal of all the aforesaid confessional statements substantiate the fact that the appellants, viz., A-10 and A-29 were fully aware of the conspiracy and willfully participated in performing the conspiratorial acts. Further, the confessions of co-accused, viz., A-32, A-46, A-57, A- 64, A-100, A-9, A-12, A-15, A-17, A-44, A-96, A-97, A-16, A-23, A-24, A-36, A-39, A-49, A-52, A-77, A-94 and A-98 corroborate the confessional statements of the appellants (A-10 and A-29) in material particulars.
316. It is also clear that the confessions made by the appellants as well as by co-accused are truthful and voluntary and were made without any coercion. All safeguards enumerated under Section 15 of TADA and the rules framed thereunder have been duly complied with while recording the confessions of the appellants.
Retraction Statements:
317. Ms. Farhana Shah, learned counsel for the appellants contended that the confessional statements of the appellants and the confessional statements of the co-accused persons relied upon by the prosecution against them were retracted subsequently, and therefore, it is not safe to base conviction on the said confessional statements under Section 15 of TADA. In reply to the above contention, learned senior counsel for the CBI submitted that where the original confession was truthful and voluntary and has been recorded after strictly following the prescribed procedure, the subsequent retraction and denial of such confession under Section 313 statement by the accused is nothing but is a result of an afterthought. Since the very same objection had already been considered in the earlier part of our judgment, we are not inclined to repeat the same once again. The said conclusion is applicable to these appeals also.
Deposition of Prosecution Witnesses:
Evidence of Mohammed Usman Jan Khan (PW-2) (Approver)
318. PW-2, in his deposition, implicates the appellants and withstood the lengthy cross examination. He deposed as follows:
i) PW-2 identified A-10 and A-29.
ii) The appellants (A-10 and A-29) worked with him in the conspiracy which led to the blasts in Bombay and they were involved in planning, conspiracy, training, landing as well as in blasting of bombs.
iii) A-29 participated in the landing of arms and ammunitions at Shekhadi.
iv) On 11.02.1993, when he went to meet Tiger Memon at Al-Hussaini building, A-10 took him to the Tigers flat at 5th floor.
v) A-29 participated in the training in Pakistan.
vi) When he (PW-2) returned after surveying the Chembur Refinery on 11.03.1993, he noticed several boys with Tiger Memon including the appellants at that time.
318.1 The said witness duly corroborates the confessions of the co-accused and the confessions of the appellants themselves. In the present case, the deposition of PW-2 has also been corroborated in material particulars. It has been contended by the counsel for the appellants that there are contradictions in the statement of PW-2 in respect of the presence of A-10 as to whether he was standing downstairs or in the hall of the 5th floor. On a perusal of the entire evidence of PW-2, it can be inferred that when PW-2 came to the Al-Hussaini building, Tiger Memon was in the flat which was on the fifth floor along with various accused including the appellants. Thereafter, PW-2 described about a meeting where Tiger explained the modalities of the blasts and he came down using the stairs when A-10 was standing downstairs.
319. It is further contended by the counsel for the appellants that there are certain contradictions regarding the air tickets given to A-10 and regarding introducing A-32 to A-10 at Hotel Midland with respect to Exhibit 25. It is relevant to mention that Exhibit 25 was not the document which was pressed into service by the prosecution. PW-2 proposed to make full and true disclosure of all the facts and on the said promise he was granted pardon. Both the statement and the deposition were made under different statutes under the law and are not comparable with each other. The approver has withstood the rigorous cross examination and the prosecution has also corroborated the deposition of the approver by adequate evidence which further affords credibility to his deposition
Evidence of Sanjay Salunke (PW-3) and Sanjay Mangesh Salaskar (PW-4)
319.1 PWs-3 and 4, who were the Security Guards on duty at Plaza Cinema at the relevant time have also witnessed the incident and have deposed as follows:
i) On 12.03.1993, at about 2.15 p.m., one Red coloured Maruti Van had been inside Plaza Cinema Theatre compound from the main gate and was parked in scooter parking area.
ii) There was an altercation between PW-4 and the driver of the said van regarding parking of the van in the scooter parking area.
iii) Seeing this, PW-3, alongwith two other security guards, approached towards them and explained the correct parking area for the same. Thereafter, the persons in the Maruti Van parked it in the car parking area.
iv) After about 45 minutes to 1 hour, there was a big explosion in the car parking area. The whole area was shaken and PW-3 noticed that the said red coloured Maruti Van parked there was totally damaged. The other motor vehicles in the said area also caught fire and several persons were injured and a situation of panic emerged among the persons who had come to the theater.
v) Other Security Guards, viz., Mr. Singh and Mr. Manchekar were also injured and, subsequently, Mr. Singh died due to the injuries suffered by him in the incident.
vi) PW-3 had taken his colleague Security Guard PW-4, who suffered a back injury and two three more injured persons to Sion Hospital and the said persons were admitted in the hospital after examination.
vii) On the way to Sion Hospital, PW-4 told PW-3 that the persons with whom they had altercation and who had come in a red coloured Maruti Van were responsible for the said incident as some thing had gone wrong in the said red coloured Maruti Van.
viii) PW-3 and PW-4 identified A-10 in the court as the driver of the said red coloured Maruti van.
ix) PW-3 and PW-4 identified A-29 as the person who was sitting by the side of the driver i.e., A-10.
320. Ms. Farhana Shah, learned counsel for the appellants contended that PW-3 was an employee of one Hindustan Security Force and not of Plaza Cinema as stated by him in his deposition. Further, it was contended on behalf of the appellants that the said witness had not specifically described/stated about the height of A-10 and thus it is a material omission. It was also contended that his general description of the kurta-pyjama worn by the accused at the time of the said incident and not explaining the details thereof is also a material omission. Thus, it was argued that in view thereof, the identification of A-10 by PW-3 is doubtful.
321. PW-3 was an employee of Hindustan Security Force which was engaged for providing security guards to Plaza Cinema and he was deputed and was on duty as a Security Guard at Plaza Cinema. Further, he has never stated in his deposition that he was an employee of Plaza Cinema. A-10 has been correctly identified by PW-3 in the court at the time of his deposition and also in the test identification parades dated 21.03.1993 and 25.04.1993, conducted by SEM, PW-462 and in parade dated 14.05.1993 conducted by SEM PW-469. Thus, the identification has been duly established by the eye witnesses.
322. Further, the depositions of PWs-3 and 4 sufficiently prove the incident and involvement of the appellants. The said depositions also provide corroboration with the above said confessional statements of A-10 and A-29 that they parked the Maruti van laden with explosives in Plaza Cinema compound which caused the said explosions causing death of 10 persons and injuries to 36 people.
Other Witnesses:
323. Kashiram Kubal (PW-449), Piyara Singh (PW-447), Mohan Mayekar (PW-455), Dattatreya Pawar (PW-448) and Ramesh Lad (PW-450) proved the injuries sustained by them during the explosion. Dr. Rajaram Bhalerao (PW-646), a doctor at Hinduja Hospital who issued certificates regarding treatment of PW-449 and PW-407 sufficiently corroborates the fact of injury suffered by the victims. Vinayak A. Mayekar (PW-456), who was the brother of the deceased Vishram Mayekar, who died due to head and chest injuries sustained in the explosion at Plaza Theatre proved the death of the said victim and also deposed about the charge being taken by him of the dead body on 13.03.1993 from KEM Hospital. Ramesh Barasingh (PW-457), son of the deceased Kisan Barasingh, who died due to scalp injury sustained in the explosion at Plaza Theatre proved the death of the said victim and also deposed about the charge being taken by him of the dead body on 13.03.1993 from KEM Hospital. This fact is further corroborated by the deposition of Dr. Walter Vaz (PW-476), who certified the deaths and its cause of the above said victims.
324. Ramesh Naik (PW-305), the Supervisor of Plaza Cine House deposed regarding hearing a loud explosion on 12.03.1993, at about 03:14 p.m., and saw that the cars parked in the parking area caught fire and a red Maruti Van was completely destroyed, a big crater was formed, compound wall was collapsed, watchman and other staff were injured and further inspected and ascertained the damage of Rs. 50 lakhs and lodged a complaint with PW-551 of Mahim Police Station. Further, he visited Sion and KEM Hospital and found that watchman Singh and project operators Shinde and Vasta had succumbed to their injuries.
325. Ramesh Tulsiram Kolhe (PW-551), an Officer from Mahim Police Station who recorded the complaint of the above, i.e., Ramesh Naik (PW-305) proved the said document. He further deposed that on 13.03.1993, he registered accidental death of Shinde, Vasta, Nissar, Siddiqui and sent a letter to Coroner for effecting post-mortem etc. under panchnama Exh. 1894 and took charge of brass articles penetrated in the body of PW-449 brought from Hinduja Hospital by PC Kamble. PW-551 also deposed about the Accidental Death Reports prepared by him in respect of the deceased persons.
326. Nivrutti S. Kokare (PW-557), was the officer who inspected the scene of offence and prepared the inspection panchnama in the presence of witnesses vide Panchnama Exh. 1918 regarding the crater being formed in the area of car parking, collapse of northern compound wall, burnt vehicles etc. He also took charge of 4 to 5 broken parts of the said red Maruti Van and the number plate bearing No. MAM 962 amongst other things.
327. It is contended on behalf of the appellants with respect to the deposition of PW-305 that on 12.03.1993, despite arrival of so many policemen at the place of explosion, there was no Panchnama prepared on the said date and it came to be prepared only the next day. Further, with respect to the deposition of Narsingh Sherkhane (PW-556), it is contended that the said API of the Bombay Police prepared the Panchnama only on 14.03.1993 whereas the offence was committed on 12.03.1993, and therefore, there has been delay in recording Panchnama which is a serious lapse in the procedure. It is brought to our notice that the Police had cordoned off and sealed the said area so as to ensure that the scene of crime was not tampered with. Moreover, after several explosions in the city, there was a state of panic and law and order situation which the Police were required to handle as a priority.
328. It is further contended by Ms. Farhana Shah on behalf of the appellants that no efforts were made by the prosecution or PW-557 to trace the ownership of the said Maruti Van. It is further contended with respect to PW-557 that, on inspection of the scene of offence and after effecting the seizure of articles therefrom, he did not mention the articles seized and certain details while drawing up the panchnama and thus his deposition cannot be relied upon. A perusal of the deposition of PW-557 reveals that he has duly inspected the scene of crime and carefully drawn up the panchnama (Exh. 1918) mentioning all the details. He has mentioned the details of all the articles seized by him therein, more particularly, the broken parts of the said Maruti van and the number plate bearing no. MFC 1972. Further, it is amply clear from the depositions of PWs-3 and 4 that the said Maruti van came inside the Plaza Cinema, they having seen the accused in the said van and it has been significantly proved that the appellants were inside the van and that it is the said van which caused the explosion. It has already been proved that the two Maruti Vans, one of blue and the other of red colour were purchased by Mohd. Shafi Jariwala (AA) from Suleman Lakdawala (PW-365) and Kailash Baheti (PW-342). Further, the number of blue Maruti Van is MH-13-D-385 but the number of red coloured Maruti was not known as it was not registered. The delivery of both these vans was given by PW-366 which was supplied by PW-365, who in turn delivered these vans to Shafi Jariwala.
329. It is contended on behalf of the appellants that no evidence has been brought on record to corroborate that the appellants had any driving licence. To this, prosecution pointed out that A-10 has been duly and properly identified as the driver of the said Maruti van by the eye- witnesses, viz., PWs-3 and 4. It has also been revealed by him in his own confessional statement as well as in the confessional statements of other co-accused that he drove the car to Plaza Cinema. Notwithstanding the absence of driving licence, it has been established that A-10 was driving the car.
330. Chordekar (PW-361) has proved the damage caused to the MTNL (public property). FSL Reports Exhs. 1952 to 1955 show the traces of RDX explosives. Rajkumar Nagdawne (PW-563) vide letter had sent the articles collected from the scene of offence and other places to FSL for opinion.
331. In view of the above said confessional statements of the appellants (A-10 and A-29), the confessional statements of the other co-accused persons, deposition of prosecution witnesses, as also the eye-witnesses, viz., PWs-3 and 4 along with other witnesses duly examined by the prosecution, the charges framed against the appellants have been duly proved.
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306. Ms. Farhana Shah, learned counsel appeared for the appellants (A-10 and A-29) and Mr. Gopal Subramanium, learned senior counsel, duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel for the respondent.
307. The above-said appeals are directed against the final judgment and order of conviction and sentence dated 18.09.2006 and 19.07.2007 respectively, whereby the appellants (A-10 and A-29) have been sentenced to death by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No. 1/1993.
Charges:
308. A common charge of conspiracy was framed against all the co-conspirators including the appellants (A-10 and A-29). 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.
308.1 In addition to the aforesaid principal charge of conspiracy framed at head firstly, the appellants (A-10 and A-29) were also charged on other common counts which are summarized as under:
At head secondly; the appellants (A-10 and A-29), abetted and knowingly and intentionally facilitated the commission of terrorist acts and acts preparatory to terrorist acts by participating in the landing and transportation of arms, ammunition and explosives at Shekadi on 3rd and 7th February, 1993; by participating in the conspiratorial meetings at the residence of Nazir Ahmed Anwar Shaikh (AA) and Baya Moosa Bhiwandiwala (A-96) to chalk out the plans for commission of terrorist acts and by participating in the preparation of vehicle bombs at Al-Hussaini Building and collecting money from the co-accused Mulchand Shah for disbursement to various accused persons who were involved in criminal conspiracy and thereby committed an offence punishable under Section 3(3) of TADA.
At head thirdly; the appellants (A-10 and A-29), planted an explosive laden Maruti Van in the compound of Plaza Cinema on 12.03.1993, which exploded causing death of 10 persons, injuring 36 others and further damage to property worth Rs. 87 lakhs and thereby committed offences punishable under Section 3(2)(i) of TADA
At head fourthly; the appellants (A-10 and A-29), by causing the aforesaid explosion caused death of 10 persons and thereby committed an offence punishable under Section 302 IPC read with Section 34 IPC.
At head fifthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused hurt to 36 persons and thereby committed an offence punishable under Section 307 IPC read with Section 34 IPC.
At head sixthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused grievous hurt to 16 persons and thereby committed an offence punishable under Section 326 IPC read with Section 34 IPC.
At head seventhly; the appellants (A-10 and A-29), by causing the aforesaid explosion, voluntarily caused hurt to 27 persons and thereby committed an offence punishable under Section 324 IPC read with Section 34 IPC.
At head eighthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused damage to properties and thereby having committed an offence punishable under Section 435 IPC read with Section 34 IPC.
At head ninthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused damage to the property used as dwelling house and for custody of property and thereby having committed an offence punishable under Section 436 IPC read with Section 34 IPC.
At head tenthly; the appellants (A-10 and A-29), by causing the aforesaid explosion committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.
At head eleventhly; the appellants (A-10 and A-29), by causing the aforesaid explosion, committed an offence punishable under Section 4(b) of the Explosive Substances Act, 1908.
At head twelfthly; the appellants (A-10 and A-29) by possessing RDX in the said Maruti Van, 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-10), abetted and knowingly facilitated explosions at Hotel Sea Rock, Hotel Centaur and Airport Centaur and thereby committed an offence punishable under Section 3(3) of TADA.
At head fourteenthly; the appellant (A-10), travelled in the van MFC-1972 with the explosive laden suitcases and thereby committed the offences punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.
309. The Designated Judge found the appellants guilty on all the aforesaid charges. The appellants have been convicted and sentenced for the above said charges as follows:
Conviction and Sentence:
(i) The appellants have been 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 appellants were also ordered to pay a fine of Rs. 25,000/- each. (charge firstly)
(ii) The appellants (A-10 and A-29) were convicted and sentenced to RI for 9 years and 10 years respectively along with a fine of Rs.50,000/- each, in default, to further undergo RI for 1 year for commission of offence under Section 3(3) of TADA. (charge secondly)
(iii) The appellants have been sentenced to death, subject to confirmation of the same by this Court, along with a fine of Rs.25,000/- each, for the offence punishable under Section 3(2)(i) of TADA. (charge thirdly)
(iv) The appellants have been sentenced to death, subject to confirmation of the same by this Court, along with a fine of Rs 25,000/- each, for the offence punishable under Section 302 of IPC read with Section 34 of IPC. (charge fourthly)
(v) The appellants have been sentenced to RI for life along with a fine of Rs. 50,000/- each, in default, to further undergo RI for 1 year, for the offence punishable under Section 307 of IPC read with Section 34 of IPC. (charge fifthly)
(vi) The appellants have been sentenced to RI for 10 years along with a fine of Rs. 50,000/- each, in default, to further undergo RI for 1 year, for the offence punishable under Section 326 of IPC read with Section 34 of IPC (charge sixthly)
(vii) The appellants have been sentenced to RI for 3 years for the offence punishable under Section 324 of IPC read with Section 34 IPC. (charge seventhly)
(viii) The appellants have been sentenced to RI for 7 years along with a fine of Rs. 50,000/- each, in default, to further undergo RI for 1 year, for the offence punishable under Sections 435 and 436 of IPC read with Section 34 IPC. (charges eighthly & ninthly)
(ix) The appellants have been sentenced to RI for 10 years along with a fine of Rs. 25,000/- each, 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) The appellants have been sentenced to RI for 7 years along with a fine of Rs 25,000/- each, 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) The appellants have been sentenced to RI for 2 years for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. (charge twelfthly)
(xii) The appellant (A-10) has been sentenced to 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 3(3) of TADA. (charge thirteenthly)
(xiii) The appellant (A-10) has been sentenced to 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 Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fourteenthly)
Evidence:
310. The evidence against the appellants (A-10 and A-29) is in the form of:-
(i) their own confessions;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimonies of prosecution witnesses; and
(iv) documentary evidence.
Conspiracy
311. The object behind the conspiracy is the ultimate aim of it and many means may be adopted to achieve this ultimate object. The crime of conspiracy is complete the moment there is an agreement in terms of Section 120-A of IPC. However, where the conspiracy has in fact achieved its object and resulted in overt acts, all the conspirators in terms of the law explained hereinabove would be liable for all the offences committed in pursuance of the conspiracy on the basis of the principle of agency which is inherent in the agreement which constitutes the crime of conspiracy.
311. 1 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 Statements:
Confessional Statement of Asgar Yusuf Mukadam (A-10)
312. 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 brief summary of the confessional statement of A-10 is reproduced hereunder:
(i) He was working in the office of Tiger Memon (AA) and his job was to maintain an account of the Hawala money and the money received in the smuggling of gold and silver.
(ii) Due to riots in December, 1992, the office of Tiger Memon (AA) was closed which resumed on 17th December after the riots subsided. Again, on 6th January, 1993, his office was closed as the riots had resurfaced.
(iii) Anwar (AA) and Shafi (AA) always used to be by the side of Tiger Memon (AA). The smuggled silver used to be purchased by Raju Laxmichand Jain @ Raju Kodi (A-26).
(iv) The money received by Tiger Memon (AA) in the above transactions was kept in a Hathi account maintained by Tiger with Mulchand Sampatraj Shah @ Choksi (A-97). Whenever Tiger needed money he would either withdraw it himself or through A-10
(v) In January, 1993, A-10 had come to know from Anwar that Tiger was going to smuggle arms and ammunitions, explosive (Kala Sabun) and hand grenades.
(vi) On 10th/11th February, Yakub Abdul Razak Memon (A-1) directed A-10 to meet him in the evening. At about 6:30-7:00 p.m., A-10 visited the residence of A-1 at which time 3 tickets and 3 passports of Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Md. Farooq Mohammed Yusuf Pawale (A-16) and Salim Phansopkar were handed over to him and he was asked to pick them up from Midland Hotel and then drop them at the Airport for their journey to Dubai. Accordingly, A-10 carried out the said instructions and dropped the aforesaid three persons at the Airport after handing over their passports and tickets. The said tickets were for Dubai.
(vii) Next day, A-10 went to the Tigers residence on his instructions. There he saw Anwar Theba (AA), Shafi (AA), and A-12 standing outside the building. Thereafter, he met Tiger Memon and escorted him to the Airport where Rafiq Madi and Javed Chikna (AA) also arrived. Tiger left for Dubai along with Javed Chikna instructing A-10 to remain in contact with A-1 and in case of requirement of money to A-1 to get the same from A-97. A-10 was also told by Tiger that Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) was to be paid Rs. 5 lacs against the landing and that the same should be paid to him.
(viii) After Tigers departure, A-10 along with co-accused (A-12) collected Rs. 5 lacs from A-97 and handed over the said amount to A-17 at his residence in Juhu.
(ix) Next day, A-10 was instructed over the phone by A-1 to collect Rs. 1 crore from A-97 for him. A-10, with the help of the other co-accused, collected the said amount from A-97 and gave it to A-1.
(x) On A-1s instructions, on 17th or 18th February, A-10 along with other co-accused, viz., Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46) picked up Irfan Chougule (AA) from Paramount Hotel and A-29 and his companion from Bandra Reclamation and dropped them at the Airport.
(xi) On 9th March, A-1 directed A-10 to transfer Rs. 25 lacs from Tigers account to Iranis account and also Rs. 10 lacs to Ohalias account and the same was done by contacting Choksi (A-97) over the phone.
(xii) In the morning of 10th March, A-10 transferred Rs. 21 lacs from Tigers account to Iranis account by contacting Choksi (A-97) over the phone on the instructions of A-1.
(xiii) On 11th March, A-10, following the instructions of Tiger, picked up 2 VIP bags, 2 rexine shoulder bags and one briefcase from the garage at Tigers residence and carried them to Room No. 17 of the Haj Committee House near Crawford Market. Co-accused Parvez (A-12) also accompanied him. The key of the room was given by Tiger Memon.
(xiv) On the instructions of Shafi, A-10 took a new scooter from his residence and left it at the residence of Tiger.
(xv) On 11th March 1993, at about 11 p.m., following the instructions of Tiger, A-10 took two briefcases and went to the residence of Mobina @ Bayamoosa Bhiwandiwala (A-96) in Tigers Maruti Van bearing No. MFC- 1972, collected Tigers passport and ticket and reached the Airport along with his relative Md. Shoaib Md. Kasam Ghansar (A-9). There, A-9 checked-in his luggage and got the boarding pass issued. The remaining briefcase, passport and ticket were given to Tiger by A-10 on his arrival at the Airport at about 3.45 am. At the time of departure, Tiger instructed A-10 to follow the instructions of Anwar.
(xvi) On returning to Tigers residence, A-10 met co-accused Javed Chikna, Shafi, Gani, Parvez, Bashir, Usman and several others. He also saw one new Ambassador Car, one blue coloured Commander Jeep, 2 Maruti-800 cars (one blue and one white), 3 new Bajaj Scooters and 2 old Bajaj Scooters, all of which were parked there laden with black coloured chemical.
(xvii) While returning from the Al-Hussaini building along with A-9 and A-12, A-10 handed over the plastic bags which contained empty boxes of the said chemical to the attending staff of the garbage vehicle at Bandra Reclamation. Then, A-10 collected 3 VIP bags from Tigers garage and at that time A-9 and A-12 were also with him. They picked up Anwar from his residence in a vehicle. One more boy, namely, Mushtaq (A-44) also came along with Anwar. Anwar placed aluminium like pencils in the chemical contained in all the 3 bags. On Anwars direction, A-10 took the vehicle to Linking road and dropped Mushtaq (A-44), and also dropped Parvez and Anwar on the way with one VIP bag each and reached the Al-Hussaini Building, Mahim around 11:45-12:00 o clock at night.
(xviii) At the Al-Hussaini Building, Anwar Theba (AA), A-44 and A-12 joined A-10 within an hour. A-10 saw that Anwar picked up aluminum rod like pencils which were lying on the back seat of the vehicle and inserted them one by one in all the five scooters which were parked there.
(xix) Further, A-10 saw that on the instructions of Anwar Theba (AA), A-15, A-12, A-44 and a boy known to Javed Chikna took out the scooters one by one and left the place.
(xx) A-10 also saw that Anwar had individually briefed all of them about parking the said scooters.
(xxi) A-10 was asked by Anwar whether A-9 could drive a scooter and when he answered in the affirmative, Anwar asked A-10 to direct A-9 to park one scooter near Zaveri Bazaar. Following the said instructions, A-9 left with the fifth scooter.
(xxii) A-10 further noticed that at about 1:45 p.m., Usman arrived with a new red coloured Maruti Van in which two VIP bags were kept by the boys of Javed Chikna. A-10 was given the keys of the said vehicle by Anwar while those of Maruti Van bearing MFC-1972 were given by Anwar to Javed Chikna.
(xxiii) A-10 was directed by Anwar and Javed Chikna to park the said Maruti Van near the Plaza Cinema. On refusal by A-10 as he was scared, he was directed to take A-29 along with him. A-10 and A-29 took the red Maruti Van and parked it in the parking lot of the Plaza Cinema at about 2:15 p.m.
(xxiv) After sometime, A-10 heard the sound of a bomb blast while boarding a taxi hired at Dadar T.T. Both A-10 and A-29 arrived at Crawford Market where they both parted ways. After roaming around for 15-20 minutes in the market, he then took a local train from Churchgate and reached home.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
312. 1 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 and 21.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of his confession is reproduced hereunder:
(i) A-29 was a resident of Nargis Dutt Nagar Zhopadpatti, Bandra Reclamation Road, opposite the Telephone Exchange Bandra (W), Bombay.
(ii) A-29 was acquainted with Javed Chikna and Usman of Mahim since the last 3-4 years.
(iii) A-29 participated in the landing of smuggled goods at Shekhadi along with Javed Chikna, Shafi, Riyaz, Munna, Karimulla, Akbar, Anwar, Parvez, Imtiyaz, Yeda Yakoob, Dadabhai and others.
(iv) In the evening of 01.02.1993, Javed Chikna asked A-29 to accompany him to bring the smuggled goods of Tiger Bhai. He along with Javed, Usman, Nasir Dhakla and Shafi left in a blue coloured Commander Jeep. On the way, they met Riyaz along with 3 boys, namely, Munna, Karimulla and Akbar who were in a Maruti Van near a Hotel. Shafi and Munna discussed something and the Maruti Van followed their jeep.
(v) A-29 was acquainted with Tiger, who met there along with Anwar Theba (AA), A-12 and A-15. Tiger arranged for their stay in the hotel.
(vi) A-29 attended a meeting in a hotel on the way to Shekhadi, in which Tiger informed all the persons that he was bringing weapons to take revenge against Hindus.
(vii) A-29 actively participated in the unloading, reloading and opening of packets containing smuggled arms and ammunitions and explosives at the Waghani Tower.
(viii) A-29 travelled in a jeep containing arms etc. from Waghani Tower to Bombay along with Bashir Ahmed Usman Gani Khairulla (A-13) and Akbar.
(ix) A-29, at the instance of Javed, gave his own passport as well as of his friend Abdul Akhtar to Usman.
(x) A-29 reached Dubai along with Irfan Chaugule and Abdul Akhtar. They met Gul Mohammed @ Gullu Noor Mohammed Shaikh (A-77) at the Dubai Airport and were received by Ayub Memon. Anwar, Haji Yakoob, Nasir Dhakla, Bashir Muchhad and Mohd. Rafiq had already reached Dubai and met them at the place of their stay. Tiger Memon also met them there.
(xi) A-29 attended conspiratorial meetings in Dubai with Tiger Memon and others.
(xii) A-29 went to Pakistan from Dubai alongwith Yakub Yeda, Bashir Muchhad, Anwar, Nasir Dhakla, Gul Mohd., Mohammed Rafiq and Irfan Chougule for receiving training in arms and ammunitions. No immigration formalities were observed at the Airport while travelling to Pakistan.
(xiii) A-29 received training in handling of revolver, AK-47, AK-56 rifles, hand grenades and making of bombs with black chemical powder (RDX) and pencil bomb timer devices. The training was given by Pakistani Army Officers for about 10 days. Tiger Memon also attended the said training.
(xiv) After the training, A-29 returned to Dubai along with others without completing any immigration formalities in the same manner.
(xv) In Dubai, at the instance of Tiger Memon, he along with others took an oath by putting their hands on the holy Quran that they would take revenge for the atrocities committed on the community and would indulge in Jehad for Islam and they would not disclose anything about the training to any one and in the event of their arrest they would not disclose anything about others to the police.
(xvi) A-29 returned to Bombay from Dubai along with Nasim, Feroz Abdul Akhtar and Mohd. Rafiq.
(xvii) On the night of 11.03.1993, A-29 went to the flat of Tiger Memon and received Rs. 5,000/- from him. He also noticed that a number of boys were already present there.
(xviii) On 12.03.1993, A-29 was present in the Al-Hussaini building along with Javed Chikna, Bashir Muchhad, Bashir Mahimwala, Usman, Salim Dandekar, Zakir, Abdul Akhtar, Anwar, Shafi and 3-4 unknown boys. In his presence, Usman came there with one bag full of handgrenades. Javed Chikna distributed 3 to 4 hand grenades each to the boys standing there.
(xix) Two VIP suitcases were kept by Anwar in a red Maruti Van. A-29 was told by Anwar that the vehicle was filled with bombs and directed him to go along with A-10 and leave the vehicle at Plaza Cinema. Thereafter, he along with A-10 took the vehicle and reached Plaza Cinema at about 1:45 or 2:00 p.m. The security guards at Plaza Cinema asked something to A-10 and he parked the vehicle in one corner and came out from there, took a taxi and came to Bhendi Bazar side.
(xx) After the bomb blast, A-29 fled to Rampur and was later arrested by police from Indore.
313. From the above, it can easily be inferred that both the accused, viz., A-10 and A-29, apart from implicating themselves in various activities along with other accused persons, corroborate with each other. It is also clear that both the appellants were present at Tigers residence and went in a red coloured Maruti Van which was loaded with explosive substances and parked it in the compound of the Plaza Cinema which later exploded killing 10 persons and injuring 36 others.
Confessional Statements of co-accused:
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
314. Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs) and 19.05.1993 (17:30 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to the appellants (A-10 and A-29):
(i) On 11.02.1993, A-10 went to the Sahar Airport with Zakir Hussain, Saleem Dandekar, Parvez at the instance of Javed Chikna and handed over to them their passports and tickets for Dubai.
(ii) A-29 went to Pakistan by a PIA flight for the purpose of training.
(iii) A-29 attended conspiratorial meeting on 10.03.1993 at the residence of Mobina (A-96).
(iv) A-29 actively participated in the preparation of vehicle bombs in the Al-Hussaini building compound in the intervening night between 11/12.03.1993 by using RDX which had landed at Shekhadi.
Confessional Statement of Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A- 46)
314. 1 Confessional statement of A-46 under Section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs) and 24.04.1993 (21:25 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to the appellants:
(i) A-10 worked in the office of Tiger Memon.
(ii) On 12th February, 1993, A-10 accompanied Tiger Memon and other co- accused and went to the airport wherefrom Tiger and other co-accused left for Dubai.
(iii) On 18th February, A-10 along with A-46 picked up Irfan Chougule and other co-accused persons and dropped them at the Airport after handing over to them their passports and tickets to Dubai.
(iv) On 17th February, 1993, A-29 was dropped by the said accused and Anwar along with other accused persons for their departure to Dubai.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
314. 2 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. In the abovesaid confessional statement, the following references have been made to the appellants:
i) A-10 worked in the office of Tiger Memon.
ii) A-10 drove the explosives laden red Maruti Van along with A-29 from the Al-Hussaini Building on 12.03.1993.
iii) A-29 was present when Anwar Theba (AA) kept two RDX laden suitcases in the dickey of a red coloured Maruti Van and he (A-29) along with A-57 kept two packets of Kala Sabun in the dickey of the said Van. He further stated that the said van was taken by A-10 and A-29 accompanied by A-57 himself.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
314. 3 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. In the abovesaid confessional statement, the following references have been made to the appellants:
i) A-10 was present at the Al-Hussaini Building compound in the intervening night between 11th/12th March, 1993 when RDX was being filled in vehicles.
ii) A-29 participated in the first as well as second landing at Shekhadi.
iii) A-29 was present in Dubai when A-64 and others went there and attended conspiratorial meetings in Dubai.
iv) A-29 went to Pakistan by a PIA flight for training.
v) A-29 attended conspiratorial meeting on 10.03.1993 at the residence of Mobina.
vi) A-29 actively participated in preparation of vehicle bombs at the Al-Hussaini Building compound in the intervening night between 11/12.03.1993 by using RDX which had landed at Shekhadi.
Confessional Statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100)
314. 4 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (22:30 hrs.) and 17.04.1993 (17:00 hrs.), by Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. In the above said confessional statement, the following references have been made to the appellants:
i) A-29 participated in the training of fire arms and ammunitions at Islamabad, Pakistan along with his associates during February, 1993.
ii) A-29 was present at the residence of Tiger Memon in the intervening night between 11/12.03.1993 along with other co-accused.
Confessional Statement of Mohammed Shoaib Mohammed Kasam Ghansar (A-9)
314. 5 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 Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. In the above said confessional statement, the following references have been made to the appellant (A-10):
(i) A-9 and A-10 are both from the same village, i.e. Karda in District Ratnagiri.
(ii) A-9s elder sister is married to A-10s elder brother, Anwar.
(iii) A-10 told him that he works for Tiger and does the business of Hawala and smuggling of gold and silver.
(iv) A-9 obtained the boarding pass used by Tiger on 11.03.1993 at the request of A-10.
(v) A-10 was at the Airport to see off Tiger Memon before the blasts and he arranged for his boarding pass.
(vi) A-10 and A-9 came back to the Al-Hussaini building after dropping Tiger on 11.03.1993. At that time, co-accused persons were filling chemicals in the vehicles as told to him (A-9) by A-10.
(vii) A-10 was driving the Maruti Van on 12.03.1993 and he dropped the co-accused sitting in the Van at a taxi stand to go to Hotel Sea- Rock, Bandra and Centaur Hotel near Airport.
(viii) A-10 gave a scooter to A-9 for parking the same at Zaveri Bazaar intersection.
ix) A-9 met A-10 on 13.03.1993 after the blasts.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
314. 6 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. In the above said confessional statement, the following references have been made with regard to A-10:
i) A-10 was working in the office of Tiger Memon.
ii) A-12 was also working in Tigers office along with A-10 and other associates to help him in Hawala transactions as well as in the landing of smuggled silver.
iii) On 15th/16th February, 1993, A-10 along with A-12 went to the residence of Tiger where they along with others were paid Rs.10,000/- by Shafi.
iv) On 11th March, 1993, at noon, A-10 and A-12 were given two small suitcases, two hand bags and one big suitcase by Tiger Memon which were taken by them to room No.17 of Musafirkhana in which one bag was containing AK-56 rifles while the other was containing hand grenades.
v) On the night of 11th March, A-10 was assisting Gani and others in the filling of black soap into the secret cavities of the vehicles.
vi) At the time of leaving for home, A-10 along with A-12 and A-9 were given 5 plastic bags in which the chemicals were kept which were thrown by them into the wastage van of BMC.
vii) A-10 along with A-12 and A-9 carried three suitcases in a van to the residence of Anwar. From there, Anwar and A-44 joined them. Anwar inserted three timer pencils in each of the said suitcases.
viii) After the blast, on 13.03.1993, A-10 met A-12 and A-9 and received the keys of the scooter which was planted by A-12 at Katha Bazaar.
Confessional Statement of Imtiaz Yunusmiyan Ghavate (A-15)
314. 7 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 the above said confessional statement, the following references have been made with regard to A-10:
i) While working for Tiger, A-15 delivered money to various people on the instructions of A-10.
ii) A-10 was managing the delivery of Hawala money in India.
iii) Tiger with A-10 and other co-accused persons was also involved in selling smuggled silver.
iv) A-10 was seated in the Maruti Van No. MFC 1972 in the morning of 12.03.1993 along with A-15.
Confessional Statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17)
314. 8 Confessional statement of A-17 under Section 15 of TADA has been recorded on 18.04.1993 (00:15 hrs.) and 20.04.1993 (02:50 hrs.) by Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. In the above said confessional statement, a reference has been made to A-10 that he gave Rs. 5 lakhs to A-17 for the landing work.
Confessional Statement of Mohd. Mushtaq Musa Tarani (A-44)
314. 9 Confessional statement of A-44 under Section 15 of TADA has been recorded on 26.05.1993 (16:55 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made with regard to A-10:
i) On 12.03.1993, A-10 was driving a maroon coloured car which was carrying A-44 and other accused involved in planting bombs.
ii) A-44 again met A-10 around noon on 12.03.1993 at Tigers house.
Confessional Statement of Baya Musa Bhiwandiwala @ Mobina (A-96)
314. 10 Confessional statement of A-96 under Section 15 of TADA has been recorded on 30.04.1993 (18:00 hrs.) and 02.05.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-10:
i) A-10 worked for Tiger.
ii) A-10 took the tickets for Tiger to Dubai from Mobinas residence on 11.03.1993.
Confessional Statement of Mulchand Sampatraj Shah @ Choksi (A-97)
314. 11 Confessional statement of A-97 has been recorded on 14.05.1993 (20:55 hrs.) and 18.05.1993 (16:15 hrs.) by Vinod Balwant Lokhande (PW-183), the then DCP, Airport Zone. In the abovesaid confessional statement, the following references have been made to A-10:
i) A-10 @ Munna opened Tiger Memons Hathi account with A-97.
ii) A-10 (Munna) had been routinely operating Tiger Memons Hathi Account with A-97.
iii) All dealings with A-10 were done on the instructions of Tiger Memon.
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
314. 12 Confessional statement of A-16 under Section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) On 08.02.1993, A-16 along with others (including A-29) went to the spot of landing and assisted Tiger in landing of smuggled items containing 84 bags and in their transport to Bombay.
ii) A-29 attended the training of dismantling and handling of fire arms and bombs including chemical bombs as well as hand grenades in Pakistan and, thereafter, went to Dubai along with others.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
314. 13 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. In the above said confessional statement, a reference has been made to A-29 that he was present at Tigers house on the day of the blast.
Confessional Statement of Munna @ Mohammed Ali Khan @ Manojkumar Bhanwar Lal Gupta (A-24)
314. 14 Confessional statement of A-24 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 III, Bombay. In the above said confessional statement, a reference has been made to A-29. It was disclosed that A-29 actively participated in the landing and transportation of smuggled goods from Shekhadi coast to Waghani Tower where the packets containing arms and ammunitions and explosives were opened under the supervision of Tiger Memon.
Confessional Statement of Abdul Khan @ Yakub Khan Akhtar Khan (A-36)
314. 15 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-36 knew A-29 for many years.
ii) A-29 took A-36 to Dubai for training.
iii) Tiger told A-29 in Dubai that his ticket to Bombay was ready and that he should leave.
iv) A-29 loaded RDX in the vehicles on 11.03.1993.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
314. 16 Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. In the above said confessional statement, A-39 refers to A-29 that he received training in Pakistan.
Confessional Statement of Nasim Ashraf Shaikh Ali Barmare (A-49)
314. 17 Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (9:30 hrs) and 18.05.1993 by Shri Krishna Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-29 joined Nasim Barmare in Pakistan and received training in arms and ammunitions.
ii) In Dubai, they all were given inflammatory speech by Tiger Memon to take revenge against the atrocities upon the Muslims.
(iii) A-29 left Dubai along with other co-accused.
Confessional Statement of Salim Rahim Shaikh (A-52)
314. 18 Confessional statement of A-52 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-29 was one of the nine persons who underwent training in Pakistan. They were given training in use of hand-grenades, RDX and detonators.
ii) On 06.03.1993, after coming to Bombay, all the persons (including A- 29) underwent training in Pakistan and met at the residence of Tiger Memon in Bandra to discuss about the bomb blasts.
iii) Tiger gave Rs. 5,000/- to each person in another meeting at his flat next day where the persons who had gone for training were also present.
iv) On the night of 11.03.1993, A-52 saw several persons at Tigers flat at the Al-Hussaini building including A-29.
Confessional Statement of Gul Mohd. @ Gullu Noor Mohd. Shaikh (A-77)
314. 19 Confessional statement of A-77 under Section 15 of TADA has been recorded on 17.04.1993 (14:10 hrs.) and 19.04.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to A-29:
i) A-77 met A-29 in a Hotel room in Dubai.
ii) A-29 came to Pakistan with them for training.
Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
314. 20 Confessional statement of A-94 under Section 15 of TADA has been recorded on 14.05.1993 (18:30 hrs.) and 16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-29 was in Dubai with other co-accused.
ii) Tiger gave tickets to A-29 to fly to Bombay from Dubai.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh A-98
314. 21 Confessional statement under Section 15 of TADA has been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-29:
i) A-29 joined him for training in Pakistan.
ii) On 01.03.1993, after others also reached Dubai, the co-accused (A-29), who had taken training in Pakistan at the instance of Tiger, took oath after placing his hands on holy Quran. He also heard about the speech given by Tiger regarding the riots in Bombay.
315. A perusal of all the aforesaid confessional statements substantiate the fact that the appellants, viz., A-10 and A-29 were fully aware of the conspiracy and willfully participated in performing the conspiratorial acts. Further, the confessions of co-accused, viz., A-32, A-46, A-57, A- 64, A-100, A-9, A-12, A-15, A-17, A-44, A-96, A-97, A-16, A-23, A-24, A-36, A-39, A-49, A-52, A-77, A-94 and A-98 corroborate the confessional statements of the appellants (A-10 and A-29) in material particulars.
316. It is also clear that the confessions made by the appellants as well as by co-accused are truthful and voluntary and were made without any coercion. All safeguards enumerated under Section 15 of TADA and the rules framed thereunder have been duly complied with while recording the confessions of the appellants.
Retraction Statements:
317. Ms. Farhana Shah, learned counsel for the appellants contended that the confessional statements of the appellants and the confessional statements of the co-accused persons relied upon by the prosecution against them were retracted subsequently, and therefore, it is not safe to base conviction on the said confessional statements under Section 15 of TADA. In reply to the above contention, learned senior counsel for the CBI submitted that where the original confession was truthful and voluntary and has been recorded after strictly following the prescribed procedure, the subsequent retraction and denial of such confession under Section 313 statement by the accused is nothing but is a result of an afterthought. Since the very same objection had already been considered in the earlier part of our judgment, we are not inclined to repeat the same once again. The said conclusion is applicable to these appeals also.
Deposition of Prosecution Witnesses:
Evidence of Mohammed Usman Jan Khan (PW-2) (Approver)
318. PW-2, in his deposition, implicates the appellants and withstood the lengthy cross examination. He deposed as follows:
i) PW-2 identified A-10 and A-29.
ii) The appellants (A-10 and A-29) worked with him in the conspiracy which led to the blasts in Bombay and they were involved in planning, conspiracy, training, landing as well as in blasting of bombs.
iii) A-29 participated in the landing of arms and ammunitions at Shekhadi.
iv) On 11.02.1993, when he went to meet Tiger Memon at Al-Hussaini building, A-10 took him to the Tigers flat at 5th floor.
v) A-29 participated in the training in Pakistan.
vi) When he (PW-2) returned after surveying the Chembur Refinery on 11.03.1993, he noticed several boys with Tiger Memon including the appellants at that time.
318.1 The said witness duly corroborates the confessions of the co-accused and the confessions of the appellants themselves. In the present case, the deposition of PW-2 has also been corroborated in material particulars. It has been contended by the counsel for the appellants that there are contradictions in the statement of PW-2 in respect of the presence of A-10 as to whether he was standing downstairs or in the hall of the 5th floor. On a perusal of the entire evidence of PW-2, it can be inferred that when PW-2 came to the Al-Hussaini building, Tiger Memon was in the flat which was on the fifth floor along with various accused including the appellants. Thereafter, PW-2 described about a meeting where Tiger explained the modalities of the blasts and he came down using the stairs when A-10 was standing downstairs.
319. It is further contended by the counsel for the appellants that there are certain contradictions regarding the air tickets given to A-10 and regarding introducing A-32 to A-10 at Hotel Midland with respect to Exhibit 25. It is relevant to mention that Exhibit 25 was not the document which was pressed into service by the prosecution. PW-2 proposed to make full and true disclosure of all the facts and on the said promise he was granted pardon. Both the statement and the deposition were made under different statutes under the law and are not comparable with each other. The approver has withstood the rigorous cross examination and the prosecution has also corroborated the deposition of the approver by adequate evidence which further affords credibility to his deposition
Evidence of Sanjay Salunke (PW-3) and Sanjay Mangesh Salaskar (PW-4)
319.1 PWs-3 and 4, who were the Security Guards on duty at Plaza Cinema at the relevant time have also witnessed the incident and have deposed as follows:
i) On 12.03.1993, at about 2.15 p.m., one Red coloured Maruti Van had been inside Plaza Cinema Theatre compound from the main gate and was parked in scooter parking area.
ii) There was an altercation between PW-4 and the driver of the said van regarding parking of the van in the scooter parking area.
iii) Seeing this, PW-3, alongwith two other security guards, approached towards them and explained the correct parking area for the same. Thereafter, the persons in the Maruti Van parked it in the car parking area.
iv) After about 45 minutes to 1 hour, there was a big explosion in the car parking area. The whole area was shaken and PW-3 noticed that the said red coloured Maruti Van parked there was totally damaged. The other motor vehicles in the said area also caught fire and several persons were injured and a situation of panic emerged among the persons who had come to the theater.
v) Other Security Guards, viz., Mr. Singh and Mr. Manchekar were also injured and, subsequently, Mr. Singh died due to the injuries suffered by him in the incident.
vi) PW-3 had taken his colleague Security Guard PW-4, who suffered a back injury and two three more injured persons to Sion Hospital and the said persons were admitted in the hospital after examination.
vii) On the way to Sion Hospital, PW-4 told PW-3 that the persons with whom they had altercation and who had come in a red coloured Maruti Van were responsible for the said incident as some thing had gone wrong in the said red coloured Maruti Van.
viii) PW-3 and PW-4 identified A-10 in the court as the driver of the said red coloured Maruti van.
ix) PW-3 and PW-4 identified A-29 as the person who was sitting by the side of the driver i.e., A-10.
320. Ms. Farhana Shah, learned counsel for the appellants contended that PW-3 was an employee of one Hindustan Security Force and not of Plaza Cinema as stated by him in his deposition. Further, it was contended on behalf of the appellants that the said witness had not specifically described/stated about the height of A-10 and thus it is a material omission. It was also contended that his general description of the kurta-pyjama worn by the accused at the time of the said incident and not explaining the details thereof is also a material omission. Thus, it was argued that in view thereof, the identification of A-10 by PW-3 is doubtful.
321. PW-3 was an employee of Hindustan Security Force which was engaged for providing security guards to Plaza Cinema and he was deputed and was on duty as a Security Guard at Plaza Cinema. Further, he has never stated in his deposition that he was an employee of Plaza Cinema. A-10 has been correctly identified by PW-3 in the court at the time of his deposition and also in the test identification parades dated 21.03.1993 and 25.04.1993, conducted by SEM, PW-462 and in parade dated 14.05.1993 conducted by SEM PW-469. Thus, the identification has been duly established by the eye witnesses.
322. Further, the depositions of PWs-3 and 4 sufficiently prove the incident and involvement of the appellants. The said depositions also provide corroboration with the above said confessional statements of A-10 and A-29 that they parked the Maruti van laden with explosives in Plaza Cinema compound which caused the said explosions causing death of 10 persons and injuries to 36 people.
Other Witnesses:
323. Kashiram Kubal (PW-449), Piyara Singh (PW-447), Mohan Mayekar (PW-455), Dattatreya Pawar (PW-448) and Ramesh Lad (PW-450) proved the injuries sustained by them during the explosion. Dr. Rajaram Bhalerao (PW-646), a doctor at Hinduja Hospital who issued certificates regarding treatment of PW-449 and PW-407 sufficiently corroborates the fact of injury suffered by the victims. Vinayak A. Mayekar (PW-456), who was the brother of the deceased Vishram Mayekar, who died due to head and chest injuries sustained in the explosion at Plaza Theatre proved the death of the said victim and also deposed about the charge being taken by him of the dead body on 13.03.1993 from KEM Hospital. Ramesh Barasingh (PW-457), son of the deceased Kisan Barasingh, who died due to scalp injury sustained in the explosion at Plaza Theatre proved the death of the said victim and also deposed about the charge being taken by him of the dead body on 13.03.1993 from KEM Hospital. This fact is further corroborated by the deposition of Dr. Walter Vaz (PW-476), who certified the deaths and its cause of the above said victims.
324. Ramesh Naik (PW-305), the Supervisor of Plaza Cine House deposed regarding hearing a loud explosion on 12.03.1993, at about 03:14 p.m., and saw that the cars parked in the parking area caught fire and a red Maruti Van was completely destroyed, a big crater was formed, compound wall was collapsed, watchman and other staff were injured and further inspected and ascertained the damage of Rs. 50 lakhs and lodged a complaint with PW-551 of Mahim Police Station. Further, he visited Sion and KEM Hospital and found that watchman Singh and project operators Shinde and Vasta had succumbed to their injuries.
325. Ramesh Tulsiram Kolhe (PW-551), an Officer from Mahim Police Station who recorded the complaint of the above, i.e., Ramesh Naik (PW-305) proved the said document. He further deposed that on 13.03.1993, he registered accidental death of Shinde, Vasta, Nissar, Siddiqui and sent a letter to Coroner for effecting post-mortem etc. under panchnama Exh. 1894 and took charge of brass articles penetrated in the body of PW-449 brought from Hinduja Hospital by PC Kamble. PW-551 also deposed about the Accidental Death Reports prepared by him in respect of the deceased persons.
326. Nivrutti S. Kokare (PW-557), was the officer who inspected the scene of offence and prepared the inspection panchnama in the presence of witnesses vide Panchnama Exh. 1918 regarding the crater being formed in the area of car parking, collapse of northern compound wall, burnt vehicles etc. He also took charge of 4 to 5 broken parts of the said red Maruti Van and the number plate bearing No. MAM 962 amongst other things.
327. It is contended on behalf of the appellants with respect to the deposition of PW-305 that on 12.03.1993, despite arrival of so many policemen at the place of explosion, there was no Panchnama prepared on the said date and it came to be prepared only the next day. Further, with respect to the deposition of Narsingh Sherkhane (PW-556), it is contended that the said API of the Bombay Police prepared the Panchnama only on 14.03.1993 whereas the offence was committed on 12.03.1993, and therefore, there has been delay in recording Panchnama which is a serious lapse in the procedure. It is brought to our notice that the Police had cordoned off and sealed the said area so as to ensure that the scene of crime was not tampered with. Moreover, after several explosions in the city, there was a state of panic and law and order situation which the Police were required to handle as a priority.
328. It is further contended by Ms. Farhana Shah on behalf of the appellants that no efforts were made by the prosecution or PW-557 to trace the ownership of the said Maruti Van. It is further contended with respect to PW-557 that, on inspection of the scene of offence and after effecting the seizure of articles therefrom, he did not mention the articles seized and certain details while drawing up the panchnama and thus his deposition cannot be relied upon. A perusal of the deposition of PW-557 reveals that he has duly inspected the scene of crime and carefully drawn up the panchnama (Exh. 1918) mentioning all the details. He has mentioned the details of all the articles seized by him therein, more particularly, the broken parts of the said Maruti van and the number plate bearing no. MFC 1972. Further, it is amply clear from the depositions of PWs-3 and 4 that the said Maruti van came inside the Plaza Cinema, they having seen the accused in the said van and it has been significantly proved that the appellants were inside the van and that it is the said van which caused the explosion. It has already been proved that the two Maruti Vans, one of blue and the other of red colour were purchased by Mohd. Shafi Jariwala (AA) from Suleman Lakdawala (PW-365) and Kailash Baheti (PW-342). Further, the number of blue Maruti Van is MH-13-D-385 but the number of red coloured Maruti was not known as it was not registered. The delivery of both these vans was given by PW-366 which was supplied by PW-365, who in turn delivered these vans to Shafi Jariwala.
329. It is contended on behalf of the appellants that no evidence has been brought on record to corroborate that the appellants had any driving licence. To this, prosecution pointed out that A-10 has been duly and properly identified as the driver of the said Maruti van by the eye- witnesses, viz., PWs-3 and 4. It has also been revealed by him in his own confessional statement as well as in the confessional statements of other co-accused that he drove the car to Plaza Cinema. Notwithstanding the absence of driving licence, it has been established that A-10 was driving the car.
330. Chordekar (PW-361) has proved the damage caused to the MTNL (public property). FSL Reports Exhs. 1952 to 1955 show the traces of RDX explosives. Rajkumar Nagdawne (PW-563) vide letter had sent the articles collected from the scene of offence and other places to FSL for opinion.
331. In view of the above said confessional statements of the appellants (A-10 and A-29), the confessional statements of the other co-accused persons, deposition of prosecution witnesses, as also the eye-witnesses, viz., PWs-3 and 4 along with other witnesses duly examined by the prosecution, the charges framed against the appellants have been duly proved.
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