Bashir Ahmed Usman Gani Khairulla (A-13) Vs. The State of Maharashtra, through CBI-STF, Mumbai

Appeal: Criminal Appeal Nos. 633 of 2008

Petitioner: Bashir Ahmed Usman Gani Khairulla (A-13)

Respondent: The State of Maharashtra, through CBI-STF, Mumbai

Apeal: Criminal Appeal Nos. 633 of 2008

Judges:

Date of Judgment: Mar 21, 2013

TADA Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 304, 326, 324, 427, 435, 436, 201, 212 Arms Act 1959, Sections 3, 7, 25 Explosives Act, 1884, Section 9B(1) Explosive Substances Act, 1908, Sections 3, 4, 5, 6 – Evidence Act, 1872, Sections 3, 27 Conviction under Bombay blast case Involvement and role of accused Bashir Ahmed Usman Gani (A-13) Charges of conspiracy, murder etc., Proof Evidence against him Appreciation Evidence comprising of his own confession, then confession of co-conspirators viz., A11, A12, A23, A32, A36, A39, A64, A52, A57, A100 and above all corroborated by approver (PW2) – Statement found to be voluntary and recorded after following due process and safe-guards Plea that confession was refracted, rejected Specific role deposed by approver Further corroboration by PWs Accused identified as the person who lobbed grenade at Fishermen’s colony Identification in dock as well as in TIP Contradictions pointed out, found to be minor No interpolation in FIR as contended Evidence of injured persons and of Panch witnesses, who proved seizures Contention that accused was arrested after 6/7 days of blast, which comes to 19/20. 3.1993, but shown to have been arrested on 30.3.1993 No complaint of illegal detention TIP alleged to be improperly conducted, but accused identified in court also. Held that evidence of TIP is a corroborative piece of evidence. Otherwise accused has been identified by witnesses in court. There is no substance about his illegal detention. Even if two eye-witnesses have not named him as person who participated in training at hillock of Sandheri, his participation is duly established. Further there are bound to be certain discrepancies in the statement and minor discrepancies cannot render the evidence unbelievable. He is proved to have lobbed bomb at Fishermen’s colony. Hence charges are proved. His conviction and sentence as awarded by trial court are affirmed. Krishna Master, Lekh Raj, Waman and Mulla, referred and relied upon.

On perusal of the above confession of the appellant the following facts emerge

(i) the appellant knowingly and consciously committed the following overt acts, viz., he agreed to take revenge against Hindus and also took oath to do Jehad and keep the identity of other co-accused undisclosed;

(ii) He took training in handling arms and throwing hand grenades at Sandheri;

(iii) He attended conspiratorial meetings on 7th March and 10th March, 1993;

(iv) He practiced by throwing stones in order to gain perfection in throwing of bombs;

(v) He filled black chemical which fact is clearly established from his own confession that Tiger Memon complemented us for our work and he went to Mahim Causeway and made every possible efforts to lob hand grenades at the basti. (Para 270)

The appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 of TADA and the rules framed thereunder. (Para 271)

A perusal of the confessional statements of all the accused, viz., A-11, A-12, A-23, A-32, A-36, A-39, A-64, A-52, A-57 and A-100 clearly establish that the appellant committed the following overt acts:

(i) He was a friend of notorious goon Javed Chikna who was a close associate of Tiger Memon.

(ii) He attended both the conspiratorial meetings;

(iii) He took oath to take revenge against Hindus and not to disclose anything to anyone;

(iv) He received training in throwing of bombs and use of arms;

(v) He was present at Al-Hussaini building in the night intervening 11/12.03.1993 and participated in filling of RDX in vehicles;

(vi) He received Rs. 5,000/- from Tiger Memon and Javed Chikna;

(vii) He alongwith other co-accused traveled in a blue coloured Maruti Van to Fishermens Colony at Mahim where they lobbed hand grenades. (Para 273)

It is contended that since he has subsequently retracted his confession on 12.01.1994, the same should not be relied upon. It is further contended that the co-accused have also subsequently retracted and, hence, it would not be safe to base conviction on the said confessions. This aspect has been elaborately considered and rejected in the earlier appeals. (Para 274)

All the eye-witnesses to the said incident have consistently deposed that the appellant came out of the van which came to Fishermens Colony at Mahim. They identified the appellant before the Court during dock proceedings as well as in the test identification parade. They further identified the Maruti Van bearing number MP-D-13-385 as the vehicle in which the appellant along with other co-accused came to the scene of the crime. The contradictions pointed out by the counsel on behalf of the appellant are minor contradictions and does not go to the root of the matter. (Para 276)

To sum up, there are bound to be some discrepancies between the narrations of different witnesses and unless the contradictions are of a material dimension, the same should not be used to disbelieve the evidence in its entirety. The contradictions pointed out by the counsel on behalf of the appellant are minor contradictions and does not render the evidence unbelievable. (Para 279)

It is seen from the materials that the said Maruti Van in which A-13, 32, 36, 39, 43 and Mehboob Liyaqat Khan (AA) were traveling was arranged by Suleman Lakdawala (PW-365) at the behest of Mohd. Shafi Jariwala (AA). This fact has been proved by the said witness. Further, the depositions of PW- 342 and PW-366 are pertinent as they complete the link relating to purchase/arrangement of the said Maruti Van used in the incident. (Para 285)

PW 366, in his deposition confirms that he had asked PW 342 to arrange for two Maruti Vans (red and blue color each) in February, 1993. The deposition of PW-342 therefore corroborates with the deposition of PW-366 in material particulars that both the vans were purchased in Madhya Pradesh and the blue Maruti Van was registered in Ujjain bearing registration number MP-13-D-0385. It is established that this number and the blue Maruti van had been duly identified by PWs- 5, 6 and 13 in court. (Para 285.3)

Further, the deposition of Mukhtar Ahmed (PW-281) reveals about the cavity which was prepared by him in the said Maruti Van at the behest of Mohd. Shafi Jariwala (AA). This further corroborates the fact that it is the same vehicle which was used in the Mahim Causeway incident. (Para 286)
Even though the eye-witnesses i.e., PWs-105 and 106 have not specifically named the appellant, their confessional (sic) statements duly corroborate with the confessional statements of various co-accused that training in fire arms was conducted at the hillocks of Sandheri. As far as naming of the appellant is concerned, mostly, the co-accused persons referred to above have stated to his participation in addition to his own confession. (Para 288)

The confessions of A-23, A-32 and deposition of PW-2 are very clear about the presence of the appellant in meetings and there is no doubt about reference to the appellant. (Para 289)

It is also contended that since he has stated in his confessional statement that he was arrested 6-7 days after the blasts, hence, the date of arrest should be 19/20.03.1993, but actually he has been shown to be arrested on 30.03.1993 so he was illegally detained by the police. The said submission is baseless and misleading as the defence has failed to substantiate averment and no document has been placed on record to show that after the arrest when the accused was produced before the Court, he immediately made any such complaint about his illegal detention by the police. (Para 290)

In the present case, the TIP was validly conducted and all necessary precautions were ensured by the SEM. Further, the evidence with regard to the TIP can only be used as a corroborative piece of evidence and is a test to strengthen trustworthiness of the substantive evidence of the witness before the Court. In the present case, all the witnesses have identified the appellant before the Court and even the SEM on this aspect withstood his cross examination. (Para 291)

264. Mr. Aabad Ponda, learned counsel for the appellant (A-13) and Mr. Mukul Gupta, learned senior counsel duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
265. The instant appeal is directed against the final judgment and order of conviction and sentence dated 04.12.2006 and 20.07.2007 respectively whereby the appellant (A-13) has been convicted and sentenced to rigorous imprisonment (RI) for life by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
266. A common charge of conspiracy was framed against all the co- conspirators including the appellant. 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 (U.A.E.) and 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, hand grenades and other explosive 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 or 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, hand grenades 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 hand-grenades at Machhimar 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 IPC read with Sections 3(2)(i)(ii), 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.
266.1 In addition to the above-said principal charge of conspiracy, the appellant was also charged on the following counts:
At head Secondly: The appellant committed an offence punishable under section 3(3) of TADA by committing the following overt acts:
(a) He received training in handling of arms, ammunitions and explosives at Borghat and Sandheri;
(b) He attended conspiratorial meetings at the residence of Babloo @ Nazir Ahmed Anwar Shaikh and Mobina @ Baya Musa Biwandiwala (A-96) where plans for committing terrorist acts were discussed and chalked out;
(c) He participated in filling of explosives in various vehicles like RDX fitted with time device detonators during preparation of vehicle bombs in the intervening night of 11/12th March, 1993.
At head Thirdly: The appellant, along with other co-accused persons, in pursuance of the aforesaid criminal conspiracy and being a member of the unlawful assembly, went to Fishermens Colony at Mahim on 12.03.1993 at about 1.45 pm in a Maruti Van being No. MP-13-D-385 and lobbed hand grenades on the hutments causing death of 3 persons, injuring 6 persons and causing loss of property worth Rs. 50,000/- and thereby committed an offence punishable under section 3(3) of TADA read with Section 149 IPC.
At head Fourthly: The appellant, by doing the aforesaid act, committed an offence punishable under Section 148 IPC.
At head Fifthly: The appellant, by doing the aforesaid act, which resulted into death of 3 persons, committed an offence punishable under Section 302 read with Section 149 IPC.
At head Sixthly: The appellant, by doing the aforesaid act which resulted into injuries to 6 persons, committed an offence punishable under Section 307 read with Section 149 IPC.
At head Seventhly: The appellant, by doing the aforesaid act which resulted into death of 3 persons, injuries to 6 others and loss of property worth Rs.50,000/- committed an offence punishable under Section 324 read with Section 149 IPC.
At head Eighthly: The appellant, by doing the aforesaid act which resulted into loss of property worth Rs.50,000/- committed an offence punishable under Section 436 read with Section 149 IPC.
267. The charges mentioned above were proved against the appellant (A-13). The appellant has been convicted and sentenced for the above said charges as under:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy read with the offences described at head firstly and sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for 6 months. (charge firstly)
ii) The appellant has also been convicted under Section 3(3) of TADA and has been sentenced to RI for 14 years along with a fine of Rs. 75,000/-, in default, to further undergo RI for 1 (one and a half) years. (charge secondly)
(iii) The appellant has also been convicted under Section 3(3) of TADA and has been sentenced to RI for life along with a fine of Rs.25,000/-, in default, to further undergo RI for a period of 6 months. (charge thirdly)
(iv) The appellant has also been convicted under Section 148 of IPC and has been sentenced to RI for 3 years along with a fine of Rs.25,000/-, in default, to further undergo RI for a period of 6 months. (charge fourthly)
(v) The appellant has also been convicted under Section 302 read with Section 149 of IPC and has been sentenced to RI for life along with a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months. (charge fifthly)
(vi) The appellant has also been convicted under Section 307 read with Section 149 of IPC and has been sentenced to RI for 10 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for a period of 1 year. (charge sixthly)
(vii) The appellant has also been convicted under Section 324 read with Section 149 of IPC and has been sentenced to RI for 3 years. (charge seventhly)
(viii) The appellant has also been convicted under Section 436 read with Section 149 of IPC and has been sentenced to RI for 10 years along with a fine of Rs. 25,000/-, in default, to further undergo RI for a period of 6 months. (charge eighthly)
Evidence
268. The evidence against the appellant (A-13) is in the form of:-
(i) his own confession;
(ii) confessions made by other co-conspirators; (co-accused);
(iii) testimony of prosecution witnesses; and
(iv) documentary evidence.
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
269. The involvement of A-13 in the conspiracy is evident from his own confession under Section 15 of TADA recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hours) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. His confession reveals as under:-
(i) At the relevant time, he was aged about 21 years, residing at Mahim and was an Electrician. He studied upto class IX.
(ii) He knows Javed Chikna (AA) who was residing next to his house for the last three years.
(iii) On 07/08.03.1993, the appellant met Javed Chikna who told him that Hindus have bothered Muslims in riots so they will combat Jehad against Hindus and for this they will impart him training to fire rounds of pistols and lobbying of bombs. Javed Chikna also told the appellant that for this they have to go out of India and asked him to be ready for travel.
(iv) On the very same day, i.e., 07/08.03.1993, Javed Chikna came to the residence of the appellant on a scooter at 9 o clock and told that he has to go along with PW-2 for some work. The appellant accompanied Usman (PW-2) on his scooter who took him to a building at Hill road at the back side of Bhabha Hospital, wherefrom, they went to a flat on the 7th floor where Tiger Memon and other co-accused were also present. The appellant knew all of them as they were friends of Javed Chikna.
(v) The appellant along with other co-accused took oath in the name of Quran that they will do Jehad and will not disclose anything to others.
(vi) Thereafter, Tiger Memon asked the appellant, Mohammad, Iqbal and Moin to go to Bandra Masjid in order to offer Namaz and informed that from there his men will take them for the next job.
(vii) As per the instructions, Abdul Gani Ismail Turk (A-11) came to Bandra Masjid in a Jeep and picked them up.
(viii) On reaching the Hill, the appellant was asked by A-11 to clean the gun and he did the same.
(ix) The appellant along with others took training in throwing of hand grenades and firing of guns.
(x) When the appellant got scared, Tiger got angry with him and asked him to do practice by throwing stones which he did.
(xi) After the training, they came back to Bombay. The appellant was dropped by Gani at Mahim Dargah by the side of Bharat Motor Training School.
(xiii) On the night intervening 11/12.03.1993, the appellant went to the house of Tiger Memon. Thereafter, he along with others went to the garage where he noticed 10-12 gunny bags and boxes filled with black chemical. He also saw co-accused persons loading articles in jeep. He also informed that Tiger Memon admired our work and then left at around 3.30 am.
(xiv) On 12.03.1993, at 12.45 p.m., he went to Al-Hussaini building along with Zakir who came to pick him up.
(xv) On 12.03.1993, the appellant was given Rs.5,000/- by Javed Chikna and he told him to accompany Salim, Zakir, Mehmood, Moin and Abdul Akhtar in order to throw bombs at Mahim causeway.
(xvi) He went to Mahim along with other co-accused in a dark blue Maruti Van with registration number of Madhya Pradesh and on the way, they took Firoz and went towards the Basti.
(xvii) On reaching there, the appellant, Zakir, Abdul, Akhtar, Mahmood, Moin and Firoz got down and hurled bombs. The appellant could not open his bomb and put it back in the bag. He could not get into the escaping car and thus he ran away and got into a bus to Bhendi Bazaar.
270. On perusal of the above confession of the appellant the following facts emerge
(i) the appellant knowingly and consciously committed the following overt acts, viz., he agreed to take revenge against Hindus and also took oath to do Jehad and keep the identity of other co-accused undisclosed;
(ii) He took training in handling arms and throwing hand grenades at Sandheri;
(iii) He attended conspiratorial meetings on 7th March and 10th March, 1993;
(iv) He practiced by throwing stones in order to gain perfection in throwing of bombs;
(v) He filled black chemical which fact is clearly established from his own confession that Tiger Memon complemented us for our work and he went to Mahim Causeway and made every possible efforts to lob hand grenades at the basti.
271. Apart from the above facts, on perusal of his entire confession we are also satisfied that the appellant has made the above confession voluntarily, without any pressure or coercion and the same has been recorded after following all the safeguards enumerated under Section 15 of TADA and the rules framed thereunder. The recording officer has proved that confession was given voluntarily and without any force, coercion or allurement.
Confessional Statements of co-accused:
272. The prosecution pointed out that the involvement of the appellant in committing overt acts, as stated above, is further revealed in the confessional statements of the other co-accused persons which are summarized as under:
Confessional Statement of Abdul Gani Ismail Turk (A-11)
272.1 Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 (22:35 hrs.) and 18.04.1993 (01:15 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The confession of A-11 corroborates with the confessional statement of the appellant that he was present at Bandra Masjid from where he was picked up and went to a hill where they took training in throwing of bombs.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
272.2 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone-X, Bombay. The confession of A-12 corroborates with the confession of the appellant that he was present inside the garage at the time when black chemical was being loaded in the vehicles.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
272.3 Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (10:00 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-23 with reference to the appellant is summarised hereunder:
(i) The appellant attended conspiratorial meeting in a flat behind Bhabha Hospital.
(ii) The appellant, along with others, took oath by placing their hands on Quran that they will do Jehad in order to take revenge.
(iii) The appellant, along with other co-accused, went to Bandra as instructed by Tiger, from where, they were picked up and went to a hill and were imparted training in throwing of bombs and practice in firing.
(iv) The appellant attended meeting at a flat in Bandra where Tiger Memon gave Rs. 5,000/- to each of them.
(v) The appellant was present at Al-Hussaini building on 12.03.1993.
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
272.4 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. The confession of A-32 reveals the following facts:
(i) The appellant attended conspiratorial meeting on 10.03.1993 in a flat at Mahim and he was in one group along with Salim, Feroz, Moin and Iqbal.
(ii) The appellant went to Al-Hussaini Building on 12.03.1993 around 12.45 pm along with Zakir who came to pick him up.
(iii) The appellant along with other co-accused received Rs.5,000/- from Javed Chikna.
(iv) The appellant, along with other co-accused, went in a blue coloured Maruti car loaded with hand grenades and they also picked up Feroz on the way to Dargah.
(v) At Mahim, all of them got down except Salim and threw hand grenades.
(vi) The appellant was left behind i.e., he could not get into the escaping car.
Confessional Statement of Abdul Akhtar Khan (A-36)
272.5 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. The confession of A-36 corroborates with the confessional statement of the appellant that he along with other co-accused went to Machhimar Colony at Mahim in a blue coloured Maruti Van and all of them got down and lobbed hand grenades and during escape the appellant was left behind.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
272.6 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 Shri P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said confession reveals the following facts qua the appellant:
(i) On 07.03.1993, in the evening, the appellant and PW-2 came to the house of A-39 and took him to a building where a meeting was held.
(ii) The appellant along with other co-accused went to Machhimar Colony in a grey coloured Maruti Van and all of them except Salim got down and lobbed hand grenades and after lobbing, he (A-13) was left behind.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
272.7 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by Shri H.C. Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. The confession of A-64 corroborates with the confession of the appellant and it reveals that the appellant was present in the flat at Al-Hussaini building on the night intervening 11/12.03.1993.
Confessional Statement of Salim Rahim Shaikh (A-52)
272.8 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. The confession of A-52 corroborates with the confession of the appellant. The said confession reveals that the appellant attended conspiratorial meeting at the residence of Babloo when Tiger Memon assigned the appellant to the group of A-32, A-43 and other co-accused and the appellant was present at Al-Hussaini building in the night intervening 11/12.03.1993.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
272.9 Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The confession of A-57 corroborates with the confession of the appellant. The said confession reveals that the appellant was a friend of Javed Chikna.
Confessional Statement of Mohd. Parvez Zulfikar Qureshi (A-100)
272.10 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. The said confession reveals the following about the appellant:
(i) He was present at Al-Hussaini building in the night intervening 11/12.03.1993.
(ii) He was present along with others in the Maruti Car driven by Salim.
273. A perusal of the confessional statements of all the above accused, viz., A-11, A-12, A-23, A-32, A-36, A-39, A-64, A-52, A-57 and A-100 clearly establish that the appellant committed the following overt acts:
(i) He was a friend of notorious goon Javed Chikna who was a close associate of Tiger Memon.
(ii) He attended both the conspiratorial meetings;
(iii) He took oath to take revenge against Hindus and not to disclose anything to anyone;
(iv) He received training in throwing of bombs and use of arms;
(v) He was present at Al-Hussaini building in the night intervening 11/12.03.1993 and participated in filling of RDX in vehicles;
(vi) He received Rs. 5,000/- from Tiger Memon and Javed Chikna;
(vii) He alongwith other co-accused traveled in a blue coloured Maruti Van to Fishermens Colony at Mahim where they lobbed hand grenades.
274. It is contended by Mr. Aabad Ponda on behalf of the appellant that since he has subsequently retracted his confession on 12.01.1994, the same should not be relied upon. It is further contended that the co-accused have also subsequently retracted and, hence, it would not be safe to base conviction on the said confessions. This aspect has been elaborately considered and rejected in the earlier appeals, we are not once again assessing the same.
Deposition of Prosecution Witnesses:
275. Apart from the aforesaid evidence, the involvement and the role of the appellant in the conspiracy as stated above is disclosed by the deposition of various prosecution witnesses which are as under:
Deposition of Mohd. Usman Jan Khan (PW-2)
275.1 The relevant material in his evidence is as follows:-
(i) PW-2 deposed that he knows the appellant as Bashir Electrician.
(ii) PW-2 identified the appellant before the court during dock proceedings.
(iii) PW-2 deposed that the appellant attended a meeting at the residence of Shakil on 07.03.1993.
(iv) PW-2 deposed that the appellant also attended a meeting at the residence of Shakil on 10.03.1993.
(v) PW-2 deposed that the appellant went for a survey of Bharat Petroleum Refinery at Chembur on 11.03.1993.
(vi) PW-2 deposed that the appellant was present at Al-Hussaini building on the night of 11.03.1993.
(vii) PW-2 deposed that the appellant was given hand grenades by Javed Chikna and he was told to throw them at Fishermens Colony at Mahim on 12.03.1993.
Deposition of Laxman Patil (PW-5)
275.2 PW-5 is the resident of the Fishermens Colony and had witnessed the incident and summarized the same as under:
(i) He deposed that while he was waiting on the road, he saw the appellant and others throwing hand grenades towards the colony.
(ii) He identified the appellant in Court.
(iii) He identified the appellant in TIP dated 15.05.1993 conducted by Special Executive Magistrate, Moreshwar Thakur (PW-469) at Mahim Police Station.
(iv) He also identified the vehicle No. MP-13-D-385 as the car in which the appellant and others came to Mahim slope in order to throw hand grenades.
Deposition of Santosh Patil (PW-6)
275.3 PW-6 is a resident of Mahim Fishermens Colony at Mahim. He deposed that he witnessed the incident while he was waiting near the Municipal School at Mahim slope.
(i) He identified the appellant in Court.
(ii) He identified the appellant in TIP dated 15.05.1993 conducted by Special Executive Magistrate, Moreshwar Thakur (PW-469) at Mahim Police Station.
(iii) He also identified the vehicle No. MP-13-D-385 as the car in which the appellant and others came to Mahim slope in order to throw hand grenades.
Deposition of Shashikant Shetty (PW-13)
275.4 PW-13 is a resident of Fishermens Colony at Mahim. He witnessed the part of the incident when he came out after hearing the sound of explosion. He saw one dark blue coloured Van with registration number of Madhya Pradesh.
(i) He stated that in all, 6 persons got down from the Maruti Van.
(ii) He identified the appellant before the Court during dock proceedings as the person who threw bomb at the Basti.
(iii) He also identified the appellant in identification parade dated 15.05.1993 conducted by Special Executive Magistrate Moreshwar Thakur (PW-469) at Mahim police station.
(iv) He also identified the Maruti Van on 10.04.1993 in which all the accused persons including the appellant came to Machhimar Colony at Mahim as MP-D-13-385.
(v) He lodged a First Information Report (FIR) (Exh.43) in Crime No 185/1993 on 12.03.1993 in respect of explosions at Fishermens Colony at Mahim.
276. It is contended on behalf of the appellant that evidence of the aforesaid eye witnesses is unreliable, untrustworthy and without any basis in order to reach to the conclusion of any guilt to justify the detention of the appellant any further in custody. It is further submitted that substantial improvements have been made by these witnesses during their evidence. We are unable to accept the same. All the eye-witnesses to the said incident have consistently deposed that the appellant came out of the van which came to Fishermens Colony at Mahim. They identified the appellant before the Court during dock proceedings as well as in the test identification parade. They further identified the Maruti Van bearing number MP-D-13-385 as the vehicle in which the appellant along with other co-accused came to the scene of the crime. The contradictions pointed out by the counsel on behalf of the appellant are minor contradictions and does not go to the root of the matter. With regard to the same, the following observations of this Court in State of Uttar Pradesh v. Krishna Master, [JT 2010) (8) SC 240 : (2010) 12 SCC 324] are relevant.
15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case.
277. In State of H.P. v. Lekh Raj, [JT 1999 (9) SC 43 : (2000) 1 SCC 247], it was observed:
7. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution’s case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot- like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person.
8. Referring to and relying upon the earlier judgments of this Court in State of U.P. v. M.K. Anthony, Tahsildar Singh v. State of U.P., Appabhai v. State of Gujarat and Rammi v. State of M.P., this Court in a recent case Leela Ram v. State of Haryana held:
There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence….
The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.
278. In Waman v. State of Maharashtra, [JT 2011 (7) SC 24 : (2011) 7 SCC 295], it was observed:
35. It is clear that not all the contradictions have to be thrown out from consideration but only those which go to the root of the matter are to be avoided or ignored. In the case on hand, as observed earlier, merely on the basis of minor contradictions about the use and nature of weapons and injuries, their statements cannot be ignored in toto.
279. To sum up, there are bound to be some discrepancies between the narrations of different witnesses and unless the contradictions are of a material dimension, the same should not be used to disbelieve the evidence in its entirety. In view of the above, we are of the view that the contradictions pointed out by the counsel on behalf of the appellant are minor contradictions and does not render the evidence unbelievable.
Investigation, Recoveries and FSL Reports
280. PWs-5, 6 and 13 have duly identified the appellant in the TIP dated 15.05.1993 for which memorandum panchnama proved as Exhibit 1515 was prepared by Moreshwar Thakur (PW-469).
281. It is contended on behalf of the appellant that there is interpolation in the FIR as White coloured Maruti Van has been changed with dark blue coloured Maruti Van. We have verified the entire contents of the FIR. From the perusal of the entire complaint, it is clear that the colour of Maruti Van was dark blue only and, hence, there is no interpolation.
Deposition of Shantaram Gangaram Hire (PW-562)
281.1 He was the police officer who visited the blast site and prepared spot panchnama (Exh. 1942) in the presence of panch witnesses, viz., Dayaram Timbak Akare and Mahendra Sadanand Mehre. PW-562 collected the articles from the place of occurrence in the presence of experts vide Panchnama Exh. 1221. The articles recovered from the blast site were sent to the Forensic Science Laboratory (FSL) for opinion. The FSL Report is Exhibit 1943 which shows the remnants to be explosives and part of hand grenades.
Evidence regarding injured and Death Victims:
Deposition of Achyut Shamrao Pawal (PW-542)
282. He was the police officer who collected the injury certificates of injured persons from Bhabha Hospital, namely, Mr. Gurudutt Agaskar, Ms. Rajashri Agaskar and Ms. Sheetal Keni. The certificates proved that they sustained injuries during the blast. PWs-13 and 412 Sheetal Keni proved to have sustained injuries during the blast.
283. Dr. Wadekar (PW-641) and Dr. Krishnakumar (PW-640) issued the injuries certificates Exh. 2374 and Exhibit 2372 to PW-13 and Sheetal Keni (PW-412), respectively.
284. Gajanan Tare (PW-413) (husband of the deceased Gulab Tare) and Karande (PW-414) (nephew of the deceased Hira Dhondu Sawant) claimants of two bodies, have proved the death of Mrs. Gulab Tare (wife of PW-413) and Smt. Hira Dhondu Sawant (PW 414s aunt) in the said incident. Dr. Pujari (PW-482) have deposed regarding the cause of death of Gulab Tare and PW-480 have deposed about the cause of death of Hira Dhondhu Sawant and proved Exh. 1603 and Exh. 1598 respectively. Achyut Shamrao Pawal (PW-542) also proved killing of 3 persons at Mahim blast.
Vehicle (Maruti Van) used in the incident
285. It is seen from the materials that the said Maruti Van in which A-13, 32, 36, 39, 43 and Mehboob Liyaqat Khan (AA) were traveling was arranged by Suleman Lakdawala (PW-365) at the behest of Mohd. Shafi Jariwala (AA). This fact has been proved by the said witness. Further, the depositions of PW- 342 and PW-366 are pertinent as they complete the link relating to purchase/arrangement of the said Maruti Van used in the incident.
Deposition of Kailash Govind Rao Baheti (PW-342)
285.1 PW-342 deposed as under:
On 18.01.1993 I had received a telephone call given by Shakil Hasham from Bombay. Shakil requested me to book one red coloured Maruti Van in the name of Asif Darvesh resident of M.G. Road, Indore and another new Maruti Van of blue colour in the name of Shri Kasam Ahmed residing at Indira Nagar, Ujjain. He also requested me to register both the Maruti Van at Indore and send the same to Bombay. He also told me that the payments’ of the same would be made at Bombay to the driver. I quoted a price of Rs. 1,69,000/- per vehicle inclusive of registration and transport charges. I was having red colour Maruti Van brought by me from M/s Bhatia & Company, Gurgaon, Haryana and blue colour Maruti Van brought from Vipul Motors, Faridabad, Haryana, in my stock. I had brought both the said vehicles by making advance payment. After receipt of booking from Shakil Hasham for red and blue colour brand new Maruti Vans, I informed the details of the purchasers to M/s Bhatia Company and M/s Vipul Motors. After receipt of said letters and bills from both the said companies in the name of purchasers who wanted red and blue Maruti Vans I sent papers of both the Vans for registration to R.T.O. The blue colour Maruti Van was registered in the name of Kasam Ahmed at Ujjain R.T.O. The blue colour Maruti Van could not be registered at Indore due to lack of E form necessary for registration. Thereafter, I sent both the said vans to Bombay to Shakil Hasham. Shakil Hasham received the delivery and paid Rs.3,38.000/- to my drivers. My drivers gave the said amount to me. I made the necessary entries in my office record for sending the said Vans to Bombay to Shakil Hasham after purchasing ‘the same for the parties told by him. The R.T.O. Authority at Ujjain had given registration Number MP-13-D-0385 to ‘blue colour Maruti Van. Today I am not remembering the engine number and chassis number of the said Maruti Van.
(emphasis added)
Deposition of Shakeel Suleman Hasham (PW-366)
285.2 He deposed regarding the purchase of the said Maruti Vans as follows:
In the same month (February 1993) I had also arranged for one blue colour and another red colour Maruti Van also registered at Madhya Pradesh for Suleman Lakdawala. The said vehicles were registered at Madhya Pradesh Indore in the name of the purchasers given to me by Suleman Lakdawala. I had given the work of registration to one Kailash Baheti of Indore. Both the said vans were insured by Insurance Agent Rakesh Tiwari before giving the same to Suleman Lakdawala. Both the said vehicles had arrived from Indore. I had sent the same to the Petrol pump of Suleman and asked him to take the delivery from the said drivers who had brought the said vehicles. Accordingly he took the delivery by making payment to the drivers.
285.3 Thus, PW 366, in his deposition confirms that he had asked PW 342 to arrange for two Maruti Vans (red and blue color each) in February, 1993. The deposition of PW-342 therefore corroborates with the deposition of PW-366 in material particulars that both the vans were purchased in Madhya Pradesh and the blue Maruti Van was registered in Ujjain bearing registration number MP-13-D-0385. It is established that this number and the blue Maruti van had been duly identified by PWs- 5, 6 and 13 in court.
286. Further, the deposition of Mukhtar Ahmed (PW-281) reveals about the cavity which was prepared by him in the said Maruti Van at the behest of Mohd. Shafi Jariwala (AA). This further corroborates the fact that it is the same vehicle which was used in the Mahim Causeway incident.
Training in handling of arms and ammunitions and explosives at Sandheri and Borghat
Deposition of Harish Chandra Keshav Pawar (PW-105).
287. At the relevant time, PW-105 was studying in 8th standard and was residing at Sandheri and is an eye-witness to the incident:-
(i) On 08.03.1993, at about 09:00 hrs, a special event occurred on the eastern side hillock to village Sandheri;
(ii) The said event was in connection with firing of guns;
(iii) 10-11 persons participated in the said firing.
(iv) The card board sheets were placed by the side of hillock;
(v) 4-5 persons from the group of 8-10 persons were firing at the said cardboards using gun;
(vi) He knows some persons, viz., A-17, A-79 from the group as they were from Sandheri Village;
287.1 PW-105 is an eyewitness to the practice session which took place at the hillocks of Sandheri Village. He was thoroughly cross examined by the defence and he withstood rigorous cross examination without being shaken. The deposition of PW-105 corroborates the fact that the training in fire arms was conducted at the hillocks of Sandheri and 10-11 persons participated in the said training.
Deposition of Rajaram Ramchandra Kadam (PW-106)
287.2 The witness deposed as under:
(i) He is an agriculturist and resides at Sandheri;
(ii) On 08.03.1993, about 9.30 a.m., he heard the sound of firing coming from Chinchechamal;
(iii) He went to Chinchechamal and noticed two men standing armed with guns and a cardboard target was placed near the hillock;
(iv) He knew 5 persons from the group as they were from Sandheri Village;
(v) He identified them before the court as A-79, A-106, A-131, A-111 and A-78.
287.3 PW-106 is also an eye witness to the practice session which took place at the hillocks of Sandheri Village. Both the above-said witnesses corroborate with each other on the fact that training in fire arms was conducted at the hillocks of Sandheri. These witnesses also corroborate the confessional statements and lend credibility to the incident of weapon training as revealed by various accused persons in their confessions.
Deposition of Namdeo Pundlik Mahajan (PW-587)
287.4 He is a constable attached with Goregaon Police Station, District Raigad. The witness deposed that:
(i) He inspected the site of the incident and collected 3 empties, 6 lead pieces, cardboard targets, stones bearing the marks due to hitting of bullets and broken branch of a tree.
(ii) The aforesaid articles were collected and seized by him in the presence of panchas and panchnama Exh. 539 was drawn by him.
(iii) He wrote a written complaint which was registered by Head Constable.
The deposition of PW-587 further proves that firing took place at the hillocks of Village Sandheri.
Deposition of Mahadeo Jadav (PW-103)
287.5 He is a panch witness who deposed about the seizures affected by police at the hillocks of Village Sandheri on 29.03.1993.
288. It is contended on behalf of the appellant that the aforesaid eye witnesses have not even named or identified the appellant to be involved in any training at Sandheri or Borghat and there is no other independent evidence to connect him to the said training incident. Even though the aforesaid eye-witnesses i.e., PWs-105 and 106 have not specifically named the appellant, their confessional (sic) statements duly corroborate with the confessional statements of various co-accused that training in fire arms was conducted at the hillocks of Sandheri. As far as naming of the appellant is concerned, mostly, the co-accused persons referred to above have stated to his participation in addition to his own confession.
289. It is further contended on behalf of the appellant that it is an admitted case that there were 3 accused persons by name of Bashir, since the name is very common in Muslims, so there is bona fide doubt about reference to the present appellant in the confessional statements of co-accused, viz., A-16, A-23, A-25, A-32, A-77 regarding his participation in the conspiratorial meetings. On this particular contention, the confessions of A-23, A-32 and deposition of PW-2 are very clear about the presence of the appellant in those meetings and there is no doubt about reference to the appellant.
290. It is also contended on behalf of the appellant that since he has stated in his confessional statement that he was arrested 6-7 days after the blasts, hence, the date of arrest should be 19/20.03.1993, but actually he has been shown to be arrested on 30.03.1993 so he was illegally detained by the police. The said submission is baseless and misleading as the defence has failed to substantiate this averment and no document has been placed on record to show that after the arrest when the accused was produced before the Court, he immediately made any such complaint about his illegal detention by the police.
291. Mr. Ponda further contended on behalf of the appellant that the Test Identification Parade was improperly conducted and, hence, no reliance can be placed on such evidence. The materials relied on by the prosecution show that in the present case, the TIP was validly conducted and all necessary precautions were ensured by the SEM. Further, the evidence with regard to the TIP can only be used as a corroborative piece of evidence and is a test to strengthen trustworthiness of the substantive evidence of the witness before the Court. In the present case, all the witnesses have identified the appellant before the Court and even the SEM on this aspect withstood his cross examination. Further, with regard to the same, this Court in Mulla v. State of U.P., [JT 2010 (2) SC 35 : (2010) 3 SCC 508], observed as follows:
43. As was observed by this Court in Matru v. State of U.P. identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroboration of the statement in court. (Vide Santokh Singh v. Izhar Hussain.)
44. The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.
292. The above said evidence thus substantiates and establishes the charges framed against the appellant.
Sentence:
293. The prosecution submitted that the appellant was given full opportunity to defend himself on the question of quantum of sentence. His statement was recorded on 05.12.2006 (Exh. 3047) in which he prayed that the following factors, amongst others, may be considered while determining his sentence:
(i) He has been in custody since his arrest in April, 1993;
(ii) His sisters are dependent on him;
(iii) He has suffered during riots; and
(iv) He has no criminal antecedent beyond this case.
294. The Designated Court duly considered all these factors while awarding the sentence as aforesaid. Further, the appellant was a coveted member of the conspiracy and was indulged in the acts furthering the object of the conspiracy. We are satisfied that the appellant was involved in the conspiracy from planning to execution.
295. In the light of the above discussion, we confirm the conviction and sentence awarded by the Designated Court and the appeal is liable to be dismissed.