Imtiyaz Yunusmiyan Ghavate (A-15) Vs. The State of Maharashtra, through CBI-STF, Bombay
EmailAppeal: Criminal Appeal No. 1365 of 2007
Petitioner: Imtiyaz Yunusmiyan Ghavate (A-15)
Respondent: The State of Maharashtra, through CBI-STF, Bombay
Apeal: Criminal Appeal No. 1365 of 2007
Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 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 Bombay blast case Role and involvement of accused Imtiyaz Yunusmiyan (A-15) – Charge of conspiracy, murder, assault etc. – Evidence – Appreciation – His own confession and confession of co-accused showing his proximity with Memons Present at time of receiving smuggled arms, unloading, reloading and transporting arms Brought one jeep having arms and ammunition which he gave to co-accused along with key Witnessed scooter being laden with explosives Took one such scooter to Diamond market as was told that bomb was ready and it was for taking revenge His statement corroborated by confessional statement of co-accused, viz, Md. Shoaib (A9), Asgar Yusuf (A10), Abdul Gani (A11), Parvez Nazir (A12), Dawood (A14), Sayyed Abdul (A28), Shahnawaz Abdul (A29,) Md. Mushtaq (A44), Md. Rafiq (A46), Sahikh Ali, (A57), Sujjad Alam (A61) Nasir Abdul (A64), Gulam Hafiz (A73), Mobina (A96) – Present at building from where explosive laden vehicles were taken to various targets Apart from confessional statement, version corroborated by approver (PW2) and various PWs including PW who saw him forcibly parking scooter and other with whom he had agreement One PW not identifying him in court – Deposition after lapse of 2 years. Held that charges are proved. Conviction and sentence affirmed. However considering his ailment i.e., AIDS/ HIV+, and having been in jail for 14 years, sentence already undergone deemed sufficient.
Sections 3(3), 5, 6, 15 Penal Code 1860, Sections 120B, 302, 307, 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 Bombay blast case Role and involvement of accused Imtiyaz Yunusmiyan (A-15) – Charge of conspiracy, murder, assault etc. – Evidence – Appreciation – His own confession and confession of co-accused showing his proximity with Memons Present at time of receiving smuggled arms, unloading, reloading and transporting arms Brought one jeep having arms and ammunition which he gave to co-accused along with key Witnessed scooter being laden with explosives Took one such scooter to Diamond market as was told that bomb was ready and it was for taking revenge His statement corroborated by confessional statement of co-accused, viz, Md. Shoaib (A9), Asgar Yusuf (A10), Abdul Gani (A11), Parvez Nazir (A12), Dawood (A14), Sayyed Abdul (A28), Shahnawaz Abdul (A29,) Md. Mushtaq (A44), Md. Rafiq (A46), Sahikh Ali, (A57), Sujjad Alam (A61) Nasir Abdul (A64), Gulam Hafiz (A73), Mobina (A96) – Present at building from where explosive laden vehicles were taken to various targets Apart from confessional statement, version corroborated by approver (PW2) and various PWs including PW who saw him forcibly parking scooter and other with whom he had agreement One PW not identifying him in court – Deposition after lapse of 2 years. Held that charges are proved. Conviction and sentence affirmed. However considering his ailment i.e., AIDS/ HIV+, and having been in jail for 14 years, sentence already undergone deemed sufficient.
Held:
From a perusal of the confession of the appellant, it emerges that he worked in close association with the other co-accused persons towards attainment of the objects behind the conspiracy and he also actively participated in the landings and transportation of arms and ammunitions and explosives which landed at Shekhadi. It is also very much clear from his confession that he parked a scooter laden with explosives and fitted with a time pencil detonator in the Diamond Market. (Para 83)
It was contended that PW-25 has not identified the appellant before the Court, so his evidence should not be relied upon. It is to be noted that the witness deposed before the Court on 13.12.1995, i.e., after a lapse of two and a half years after the incident. After a gap of more than two years, it is plausible that memory could have faded and accordingly the witness failed to identify him before the court. However, during the identification parades, which were conducted soon after the incident, PW-25 identified the appellant to be the person who quarreled with him and parked the scooter at Diamond House. The deposition of PW 25 also corroborates with the evidence of PW-21. (Para 87)
The appellants involvement in landing, his association with Tiger Memon, participation in planting scooter bomb have been fully established by the prosecution. (Para 88)
The fact that the appellant is suffering from AIDS/HIV+ has not been disputed by the CBI. Taking note of all these aspects including the fact that he was in jail nearly for 14 years, while confirming the conviction and sentence, in view of special circumstances, though the life sentence is the appropriate sentence for the proved charges, we order that there is no need to send him back to prison. In the peculiar circumstance, we make it clear that the period already undergone would be sufficient. (Para 89)
JUDGEMENT:
JUDGEMENT
77. Ms. Farhana Shah, learned counsel for the appellant (A-15) and Mr. Mukul Gupta learned senior counsel, duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
78. This appeal is directed against the final judgment and order of conviction and sentence dated 16.11.2006 and 17.07.2007 respectively, whereby the appellant (A-15) 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:
79. A common charge of conspiracy was framed against all the coconspirators including the appellant (A-15). The relevant portion of the charge is reproduced hereunder:-
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (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 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 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.
79.1 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 participated in the landings and transportation of arms, ammunitions and explosives smuggled into India at Shekhadi on 03.02.1993 and 07.02.1993; and
(b) He participated in the preparation of vehicle bombs at Al-Hussaini Building on the night of 11/12.03.1993.
At head Thirdly; The appellant planted explosives laden scooter No. MH-02-2924 at Dhanji Street, Bombay on 12.03.1993 for causing explosion and thereby committed an offence punishable under Section 3(3) of TADA.
At head Fourthly; The appellant, by planting the above-mentioned explosives laden scooter with the intention of committing murder, has thereby committed an offence punishable under Section 307 IPC.
At head Fifthly; The appellant, by planting the above-mentioned explosives laden scooter at Dhanji Street with the intention and knowledge of causing damage to the property, has committed an offence punishable under Section 435 read with Section 511 IPC.
At head Sixthly; The appellant, by planting the above-mentioned scooter, committed an offence under Section 436 read with Section 511 IPC.
At head Seventhly; The appellant, by possessing the above-mentioned explosives laden scooter which was planted by him at Dhanji Street, has committed an offence punishable under Section 4 (a)(b) of the Explosive Substances Act, 1908.
At head Eighthly; The appellant, by possessing the RDX explosives in the above-mentioned scooter, without valid licence, has committed an offence under Section 9B(1)(b) of the Explosives Act, 1884.
80. The Designated Judge found the appellant (A-15) guilty on all the aforesaid charges except charge (b) at head secondly. The appellant (A-15) has been convicted and sentenced for the abovesaid charges as follows:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy under Section 3(3) of TADA and under Section 120-B IPC 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 been convicted under Section 3(3) of TADA for commission of offences at head secondly and sentenced to RI for 10 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge secondly)
(iii) The appellant has been convicted under Section 3(3) of TADA for commission of offences mentioned at head thirdly and sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge thirdly)
(iv) The appellant has also been convicted under Section 307 of IPC for commission of offences mentioned at head fourthly and sentenced to RI for 10 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge fourthly)
(v) The appellant has been convicted under Section 435 read with Section 511 of IPC for commission of offences at head fifthly and sentenced to RI for 3 (three and a half) years along with a fine of Rs. 25,000/, in default, to further undergo RI for 6 months. (charge fifthly)
(vi) The appellant has also been convicted under Section 436 read with Section 511 of IPC for commission of offences at head sixthly and sentenced to RI for 5 years along with a fine of Rs. 12,500/-, in default, to further undergo RI for 3 months. (charge sixthly)
(vii) The appellant has been convicted under Section 4(b) of the Explosive Substances Act, 1908 for commission of offence at head seventhly and sentenced to RI for 5 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge seventhly)
(viii) The appellant has also been convicted under Section 9B(1)(b) of the Explosives Act, 1884 for commission of offence at head eighthly and sentenced to RI for 1 year along with a fine of Rs. 2,000/-, in default, to further undergo RI for 2 months. (charge eighthly)
Evidence
81. The evidence against the appellant (A-15) 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 Imtiyaz Yunusmiyan Ghavate (A-15)
82. 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. The following facts emerge from his confession:-
(i) He was a resident of 23, Naupada, Ist Floor, Bandra (E), Bombay.
(ii) He was a good friend of Anwar Haji Theba (AA), who was his neighbour and used to work for Tiger Memon.
(iii) He was introduced to Tiger Memon by Anwar.
(iv) He, along with Asgar Yusuf Mukadam (A-10), Abdul Ismail Gani Turk (A-11), Rafiq Madi (A-46), Anwar Theba (AA), Parvez Nazir Ahmed Shaikh (A-12), Shafi (AA) and Salim, was working for Tiger in his hawala business.
(v) On 23/24.01.1993, Anwar told the appellant that he had received a phone call from Tiger that he will be coming on that day and they had to go to the Airport to receive him.
(vi) He along with Anwar, Shafi and A-11 went to the Airport to receive Tiger Memon.
(vii) During the last week of January, 1993 he along with Shafi (AA), A-11, Anwar, Rafiq Madi (A-46) and A-12 participated in the landing at Shekhadi. The landing did not take place for 3-4 days. During that period, they stayed at Hotel Vasava and then shifted to Hotel Big Splash, Alibaug.
(viii) He was also present when smuggled arms and explosives were opened at Waghani Tower and re-loaded in cavities of vehicles and when bags containing explosives were sent by Tiger Memon through Dawood Taklya for safe custody.
(ix) He also helped in loading, unloading, emptying and re-loading of arms and explosives. The bags which had been brought in the vehicles were opened and found that it contained AK-56 rifles, magazines, pistols, hand-grenades, cartridges and bundles of wires.
(x) At the instance of Tiger Memon, he brought one jeep containing arms and ammunitions to Bombay and kept it in the garage of Gulam Hafiz Shaikh @ Baba (A-73) and handed over the key of the jeep to him.
(xi) Anwar had told him that during the riots in January, 1993, their community had suffered severe loss and in order to take revenge, Tiger was imparting training of weapons to some of the persons in Dubai.
(xii) After getting training at Dubai, he came back to Bombay and Anwar met the appellant 1-2 times at Bandra Talab and told him that he has taken training in handling weapons and bombs in Dubai and very soon they would take the revenge of the injustice caused to the Muslims in Bombay.
(xiii) Anwar arrived at Al-Hussaini building on 12.03.1993 and checked the dickeys of all the scooters. Thereafter, he took a steel grey coloured pencil from his coat pocket and inserted it in each of the black coloured soap like chemical, i.e., gun powder kept in the dickeys.
(xiv) The appellant then asked Anwar as to what he was doing, to which he replied that the bombs were ready and by using these bombs, they would take revenge for the injustice caused to their community.
(xv) As directed by Anwar, he took one old blue coloured explosives laden scooter bearing registration No. 2924 and parked the same in a corner of Diamond Market.
(xvi) After 5-6 days of the blast, he was arrested by Worli P.S.
83. From a perusal of the confession of the appellant, it emerges that he worked in close association with the other co-accused persons towards attainment of the objects behind the conspiracy and he also actively participated in the landings and transportation of arms and ammunitions and explosives which landed at Shekhadi. It is also very much clear from his confession that he parked a scooter laden with explosives and fitted with a time pencil detonator in the Diamond Market.
Confessional Statements of co-accused
84. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co- accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-15) are summarized hereinbelow:
Confessional Statement of Mohammed Shoaib Mohammed Kasam Ghansar (A-9)
84.1 Confessional statement of A-9 under Section 15 of TADA has been recorded on 19.04.1993 (13:10 hrs.) and 22.04.1993 (00:30 hrs.) by Shri Prem Krishan Jain (PW-189), the then DCP, Zone X, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A- 15):
(i) A-9 used to see Gani (A-11), Rafique Madi (A-46), Imtiyaz (A-15), Parvez (A-12), Shafi, Salim and Anwar in the office at Dongri.
(ii) A-15 was present in the house of Anwar on 12.03.1993, when Asgar Yusuf Mukadam (A-10), Mohd. Shoeb and Parvez (A-12) went there with three suitcases filled with RDX.
(iii) A-15 was present along with other co-accused persons at Al-Hussaini building on 12.03.1993 when Anwar inserted time based detonators into the black chemical filled up in the dickeys of the scooters.
Confessional Statement of Asgar Yusuf Mukadam (A-10)
84.2 Confessional statement of A-10 under Section 15 of TADA has been recorded on 23.04.1994 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-15):
(i) A-15 used to attend Tiger’s office at Dongri and assisting in the activities of Hawala transactions including the delivery and receipt of funds.
(ii) A-15 was asked by Anwar to reach the residence of Tiger Memon at Al-Hussaini building on 12.03.1993.
(iii) A-15 took an explosives laden scooter fitted with a time pencil detonator at the instance of Anwar.
Confessional Statement of Abdul Gani Ismail Turk (A-11)
84.3 Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 (22:35 hrs.) and 18.04.1993 (01:15 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A-11, with reference to the appellant, stated as under:-
(i) A-15 was working with Tiger Memon.
(ii) A-15 was present at the Al-Hussaini Building on 27/28th January along with co-accused Tiger Memon, Anwar, Shafi, Yakub Memon, Rahin Memon, Parvez Shaikh, Rafique Madi and from there all of them went to Mhasla and Shekhadi for landings.
(iii) A-15 also visited Shekhadi for 2-3 times and on account of landing not taking place for a few days, they stayed at Hotel Vasava and, thereafter, at Hotel Big Splash, Alibaug.
(iv) On 02/03.02.1993, he visited the Waghani Tower along with A-15 and others and smuggled goods were also brought in using vehicles by co-accused Tiger, Javed Chikna, Dadabhai (A-17), Dawood Taklya and Anwar. The said goods were unloaded and checked by Tiger Memon (AA) and were found to be handgrenades, rifles, pistols, black soap, rounds, electric wires, which were reloaded in vehicles and sent to Bombay.
(v) A-15 was present at Bandra along with Anwar.
(vi) On 07.03.1993, he told the accused that Tiger Memon had returned from Dubai.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
84.4 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A-12, with reference to the appellant, stated as under:
(i) He was working in the office of Tiger Memon.
(ii) A-15 took the accused (A-12) to Al-Hussaini Building on the pretext that they have to go for Tigers work wherefrom all the accused persons present there including Tiger Memon left for Mhasla.
(iii) He went to the Shekhadi Coast along with other associates to help Tiger Memon (AA) in the landing of arms and ammunitions and explosives, which was delayed and effected on 03.02.1993, and also in the transportation of the said material to the Waghani Tower and then to Bombay using vehicles containing secret cavities for the said purposes.
(iv) In the second week of February 1993, he again went along with other associates and helped Tiger in landing at Shekhadi Coast and transportation of the consignments to the Tower and thereafter to Bombay.
(v) Tiger Memon gave two passports to Mohammed Hussain with the instruction to hand over the same to the appellant.
(vi) He was present at the residence of Anwar Theba, when Anwar and A-44 left in Maruti Van with A-9, A-10 and A-12 for planting the bombs.
(vii) Thereafter, he reached Al-Hussaini building when Anwar inserted time device detonator in the dickey of the scooters containing black chemical.
Confessional Statement of Dawood @ Dawood Taklya Mohd. Phanse @ Phanasmiyan (A-14)
84.5 Confessional statement of A-14 under Section 15 of TADA has been recorded on 15.04.1993 (17:55 hrs.) and 17.04.1993 (19:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-14, in his confessional statement, with reference to the appellant stated that on 19th January, A-15 along with Rafiq Madi contacted him and informed about the confirmation of his ticket for Dubai and also escorted him to the Airport.
Confessional Statement of Sayyed Abdul Rehman Shaikh (A-28)
84.6 Confessional statement of A-28 under Section 15 of TADA has been recorded on 23.04.1993 (17:00 hrs.) and 01.05.1993 (23:30 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. His confession further establishes that the appellant (A-15) was a close associate of Tiger Memon and was involved in smuggling activities with him.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
84.7 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. His confession reveals the following facts:
(i) The appellant came along with Tiger Memon.
(ii) He actively participated in the landing of arms ammunitions and explosives at Shekhadi. He was driving the jeep and transported the arms and ammunitions and explosives smuggled at Shekhadi from Waghani Tower to Bombay.
Confessional Statement of Mohd. Mushtaq Moosa Tarani (A-44)
84.8 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. His confession reveals the following facts:
(i) The appellant was present at the house of Anwar. On the instructions of Anwar, he along with A-44, visited the Al-Hussaini building to see A-10 and left a message with the watchman of the said building to send A-10 with the vehicle at the residence of Anwar. The appellant returned along with A-44. The appellant was also present when A-44 and Anwar left in the Maruti Van which was brought by A-10 alongwith two other boys.
(ii) Anwar showed the time based detonator pencils before the appellant.
(iii) The appellant (A-15) was present at the Al-Hussaini building when A- 44 returned after planting the suitcase and told that he had planted the suitcase in the room as per the conspiratorial plan.
Confessional Statement of Mohd. Rafiqu@ Rafiq Madi Musa Biyariwala (A-46)
84.9 Confessional statement of A-46 under Section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs.) and 23.04.1993 (21:25 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. His statement reveals as under:
(i) The appellant worked with Tiger Memon and attended his Dongri office for assisting him in the business activities apart from landing operations of the smuggled goods.
(ii) He along with the accused and other associates assisted Tiger Memon in the landing at Shekhadi which took place on 03.02.1993, after delay of 2-3 days, and then he arranged for transportation along with Dadabhai (A-17) and others.
Confessional Statement of Sahikh Ali Shaikh Umar (A-57)
84.10 Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. His confession corroborates with the testimony of other accused with regard to the fact that the appellant (A- 15) was working with Tiger Memon.
Confessional Statement of Sujjad Alam @ Iqbal Abdul Hakim Nazir (A-61)
84.11 Confessional statement of A-61 under Section 15 of TADA was recorded on 21.04.1993 by Shri K.L. Bishnoi (PW-193). His confessional statement corroborates with the abovesaid confessions that the appellant (A-15) participated in the landing in February, 1993.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
84.12 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 abovesaid confessions that the appellant (A-15) participated in the landing in February, 1993.
Confessional Statement of Gulam Hafiz Shaikh @ Baba (A-73)
84.13 Confessional statement of A-73 under Section 15 of TADA has been recorded on 15.05.1993 (22:05 hrs.) and 17.05.1993 (01:45 hrs.) by Shri Vinod Balwant Lokhande, the then DCP, Airport Zone, Bombay. His confession reveals as under:
(i) A-73 knows Tiger Memon and his partners including the appellant and other co-accused.
(ii) A-15 was present at the Tower in Mhasla along with other co-accused.
(iii) A-15 was present while unloading of goods was being done from a truck and also at the time of re-loading in the Jeep and tempo.
Confessional Statement of Mobina @ Baya Moosa Bhiwandiwala (A-96)
84.14 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. She stated that she knew the appellant (A-15) as one of Tiger’s men.
85. From the aforementioned confessional statements, it is established that:
(i) The appellant was closely associated with Tiger Memon.
(ii) He was also a close associate of Anwar.
(iii) He used to work with Tiger Memon and assisting him in his smuggling activities.
(iv) A-15 actively participated in the landings of arms and ammunitions and explosives which took place at Shekhadi on both the occasions.
(v) He was present at Anwars house on 12.03.1993 when the other co-accused came there with 3 suitcases filled with RDX.
(vi) The appellant knew that time based detonators were being used to cause explosions at the various selected targets.
(vii) He was also present at Al-Hussaini building on 12.03.1993 at the time when the bombs (vehicles) were being taken to the various locations (targets) selected.
(viii) He drove the scooter filled with RDX, fitted with time device detonator and parked the same at Diamond House.
Deposition of Prosecution Witnesses:
86. 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)
86.1 The relevant material in his evidence is as under:-
(i) He knows the appellant as Imtiyaz;
(ii) He identified the appellant before the court;
(iii) Tiger Memon, Anwar, A-15, Nazir and one other person were present at Hotel Big Splash;
(iv) A meeting was held at about 12.00 p.m. in Hotel Big Splash by Tiger Memon in which PW-2 and the appellant (A-15) and many others were present, thereafter, they all left for Shekhadi coast.
86.2 From the evidence of the Approver (PW2), it is duly established that the appellant participated in the landing at Shekhadi along with other co-accused persons.
Deposition of Deepak Narottamdas Seth (PW-21)
86.3 PW-21 is an eye-witness. At the relevant time, he was a Broker in Zaveri Bazaar. The following facts emerge from his deposition:
(i) On 12.03.1993, at 2 p.m., he saw the appellant (A-15) quarrelling with a feriwala in front of Diamond House.
(ii) The appellant forcibly parked a blue scooter bearing registration no. MH-02-C-2924.
(iii) The appellant left the scooter on the pretext of urgent work and said that he would take it away after 5 to 10 minutes.
(iv) He identified the appellant before the Court.
(v) Earlier, he had identified the appellant in the TIP held on 13.05.1993 by Sharad Vichare (PW-459) for which Memorandum Panchnama Exhibit Nos. 1459 and 1459-A were prepared by him.
86.4 Ms. Farhana Shah, learned counsel for the appellant contended that the evidence of PW-21 is contradictory to that of PW-453, who is a Constable and PW-547, PI Jadhav, in view of the above, we are unable to accept the said argument. Equally, her claim that PW-21 is not trustworthy and his evidence should be discarded, is liable to be rejected.
Deposition of Tukaram Ganpat Shelambkar (PW-25)
86.5 PW-25 is an eye-witness to the occurrence. He was a hawker in Zaveri Bazaar. From his deposition, the following facts emerge:
(i) He had an argument with the appellant as he wanted to park the scooter at the place where PW-25 wanted to sell his goods.
(ii) The appellant parked the scooter and left away.
(iii) He identified the Bajaj blue coloured scooter MH 2924 (Article 22) which was parked on 12.03.1993 at the Police Station.
(iv) He identified the appellant in the TIP held on 21.03.1993 and 13.05.1993 conducted by Shri Vasant Kamble (PW-462) and Shri Sharad Vichare (PW-459) respectively. Though he failed to identify the appellant in the Court, he identified the scooter which was parked at Dhanji Road.
86.6 From the materials on record, it is clear that the identity of the appellant who parked the blue scooter bearing registration no. MH-02-C-2924 has been established.
87. It was contended by Ms. Farhana Shah, learned counsel for the appellant that PW-25 has not identified the appellant before the Court, so his evidence should not be relied upon. It is to be noted that the witness deposed before the Court on 13.12.1995, i.e., after a lapse of two and a half years after the incident. After a gap of more than two years, it is plausible that memory could have faded and accordingly the witness failed to identify him before the court. However, during the identification parades, which were conducted soon after the incident, PW-25 identified the appellant to be the person who quarreled with him and parked the scooter at Diamond House. The deposition of PW 25 also corroborates with the evidence of PW-21.
Subhash Dattaram Jhadav (PW-547)
87.1 PW-547 is a police officer and was attached with L.T. Marg Police Station as PI. He deposed as under:
(i) He reached the spot along with Panch witnesses and Inspector Nand Kumar Chaugule (PW-444).
(ii) He saw the dickey of the scooter full of a blackish oily substance with pallets and he also saw one pipe and three tubes embedded in the said material.
(iii) He took sample of the blackish material and the remaining material was taken out and sealed in bags.
(iv) He drew a spot Panchnama being Exhibit 1447
87.2 The above fact is also corroborated by the deposition of Nandkumar Chaugule (PW-444), who was an Inspector and has deposed about the fact of going to Diamond House and defusing the detonator which was inserted in the blackish substance.
87.3 The abovesaid articles were seized and sent to FSL for opinion vide letter Exhibit No. 1866. The FSL Report Exhibit No. 1867 confirms that the material which was taken out from the dickey of the scooter was highly explosive substance.
Purchase of Bajaj Scooter
87.4 The scooter bearing registration No. MH-02-C-2924 (Article 22) was purchased by Anwar Theba (AA) which fact has been proved by Shamshudin Shaikh (PW-268), who was engaged in the business of buying and selling motorbikes and scooters. He deposed that he knew Anwar Theba (AA) and had sold the said scooter to him for a cost of Rs. 19,000/- which was paid by him in cash. The deposition of PW-268 is marked as Exhibit 1113.
Deposition of Shankar B. More (PW 275)
87.5 PW-275 was working as a Pump Operator for water pump installed at Nutan Nagar Cooperative Society. Besides this, he used to clean the vehicles of the members residing in the society for which they used to pay him. He identified the scooter bearing Registration No. MH-02-C-2924 (Art. 22) and informed that it belonged to Anwar Bhai as he used to clean the scooter for him.
88. In the earlier part of our order, we have expressed our views about the acceptability of the statement of Md. Usman Jan Khan (PW-2), validity of the confessional statement of the accused as well as co-accused implicating the appellant (A-15) and his relationship with Tiger as well as the part played by him in association with him. Learned counsel for the appellant prayed for discarding his confession. However, in view of the explanation and the evidence of I.O.s and recording officers, discussion and ultimate conclusion of the Designated Court, we reject her request. The appellants involvement in landing, his association with Tiger Memon, participation in planting scooter bomb have been fully established by the prosecution. We agree with the conclusion arrived at by the Designated Court.
Sentence:
89. Even at the beginning, Ms. Farhana Shah, learned counsel appearing for the appellant highlighted that out of the life imprisonment, the appellant had served nearly 14 years in jail. She also highlighted that the appellant is suffering with AIDS/HIV+ and is a sick person. She also placed his treatment particulars furnished by J.J. Hospital and recent medical reports showing his CD Count and his Blood Count. She further pointed out that in spite of continuous treatment, even at this stage, he is suffering from AIDS. As a matter of fact, considering his health condition, this Court has granted him interim bail on medical grounds and that is being continued even now. The fact that the appellant is suffering from AIDS/HIV+ has not been disputed by the CBI. Taking note of all these aspects including the fact that he was in jail nearly for 14 years, while confirming the conviction and sentence, in view of special circumstances, though the life sentence is the appropriate sentence for the proved charges, we order that there is no need to send him back to prison. In the peculiar circumstance, we make it clear that the period already undergone would be sufficient and with this direction, we dispose of his appeal.
77. Ms. Farhana Shah, learned counsel for the appellant (A-15) and Mr. Mukul Gupta learned senior counsel, duly assisted by Mr. Satyakam, learned counsel for the respondent (CBI).
78. This appeal is directed against the final judgment and order of conviction and sentence dated 16.11.2006 and 17.07.2007 respectively, whereby the appellant (A-15) 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:
79. A common charge of conspiracy was framed against all the coconspirators including the appellant (A-15). The relevant portion of the charge is reproduced hereunder:-
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (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 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 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.
79.1 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 participated in the landings and transportation of arms, ammunitions and explosives smuggled into India at Shekhadi on 03.02.1993 and 07.02.1993; and
(b) He participated in the preparation of vehicle bombs at Al-Hussaini Building on the night of 11/12.03.1993.
At head Thirdly; The appellant planted explosives laden scooter No. MH-02-2924 at Dhanji Street, Bombay on 12.03.1993 for causing explosion and thereby committed an offence punishable under Section 3(3) of TADA.
At head Fourthly; The appellant, by planting the above-mentioned explosives laden scooter with the intention of committing murder, has thereby committed an offence punishable under Section 307 IPC.
At head Fifthly; The appellant, by planting the above-mentioned explosives laden scooter at Dhanji Street with the intention and knowledge of causing damage to the property, has committed an offence punishable under Section 435 read with Section 511 IPC.
At head Sixthly; The appellant, by planting the above-mentioned scooter, committed an offence under Section 436 read with Section 511 IPC.
At head Seventhly; The appellant, by possessing the above-mentioned explosives laden scooter which was planted by him at Dhanji Street, has committed an offence punishable under Section 4 (a)(b) of the Explosive Substances Act, 1908.
At head Eighthly; The appellant, by possessing the RDX explosives in the above-mentioned scooter, without valid licence, has committed an offence under Section 9B(1)(b) of the Explosives Act, 1884.
80. The Designated Judge found the appellant (A-15) guilty on all the aforesaid charges except charge (b) at head secondly. The appellant (A-15) has been convicted and sentenced for the abovesaid charges as follows:
Conviction and Sentence:
(i) The appellant has been convicted for the offence of conspiracy under Section 3(3) of TADA and under Section 120-B IPC 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 been convicted under Section 3(3) of TADA for commission of offences at head secondly and sentenced to RI for 10 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge secondly)
(iii) The appellant has been convicted under Section 3(3) of TADA for commission of offences mentioned at head thirdly and sentenced to RI for life along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge thirdly)
(iv) The appellant has also been convicted under Section 307 of IPC for commission of offences mentioned at head fourthly and sentenced to RI for 10 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge fourthly)
(v) The appellant has been convicted under Section 435 read with Section 511 of IPC for commission of offences at head fifthly and sentenced to RI for 3 (three and a half) years along with a fine of Rs. 25,000/, in default, to further undergo RI for 6 months. (charge fifthly)
(vi) The appellant has also been convicted under Section 436 read with Section 511 of IPC for commission of offences at head sixthly and sentenced to RI for 5 years along with a fine of Rs. 12,500/-, in default, to further undergo RI for 3 months. (charge sixthly)
(vii) The appellant has been convicted under Section 4(b) of the Explosive Substances Act, 1908 for commission of offence at head seventhly and sentenced to RI for 5 years along with a fine of Rs. 50,000/-, in default, to further undergo RI for 1 year. (charge seventhly)
(viii) The appellant has also been convicted under Section 9B(1)(b) of the Explosives Act, 1884 for commission of offence at head eighthly and sentenced to RI for 1 year along with a fine of Rs. 2,000/-, in default, to further undergo RI for 2 months. (charge eighthly)
Evidence
81. The evidence against the appellant (A-15) 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 Imtiyaz Yunusmiyan Ghavate (A-15)
82. 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. The following facts emerge from his confession:-
(i) He was a resident of 23, Naupada, Ist Floor, Bandra (E), Bombay.
(ii) He was a good friend of Anwar Haji Theba (AA), who was his neighbour and used to work for Tiger Memon.
(iii) He was introduced to Tiger Memon by Anwar.
(iv) He, along with Asgar Yusuf Mukadam (A-10), Abdul Ismail Gani Turk (A-11), Rafiq Madi (A-46), Anwar Theba (AA), Parvez Nazir Ahmed Shaikh (A-12), Shafi (AA) and Salim, was working for Tiger in his hawala business.
(v) On 23/24.01.1993, Anwar told the appellant that he had received a phone call from Tiger that he will be coming on that day and they had to go to the Airport to receive him.
(vi) He along with Anwar, Shafi and A-11 went to the Airport to receive Tiger Memon.
(vii) During the last week of January, 1993 he along with Shafi (AA), A-11, Anwar, Rafiq Madi (A-46) and A-12 participated in the landing at Shekhadi. The landing did not take place for 3-4 days. During that period, they stayed at Hotel Vasava and then shifted to Hotel Big Splash, Alibaug.
(viii) He was also present when smuggled arms and explosives were opened at Waghani Tower and re-loaded in cavities of vehicles and when bags containing explosives were sent by Tiger Memon through Dawood Taklya for safe custody.
(ix) He also helped in loading, unloading, emptying and re-loading of arms and explosives. The bags which had been brought in the vehicles were opened and found that it contained AK-56 rifles, magazines, pistols, hand-grenades, cartridges and bundles of wires.
(x) At the instance of Tiger Memon, he brought one jeep containing arms and ammunitions to Bombay and kept it in the garage of Gulam Hafiz Shaikh @ Baba (A-73) and handed over the key of the jeep to him.
(xi) Anwar had told him that during the riots in January, 1993, their community had suffered severe loss and in order to take revenge, Tiger was imparting training of weapons to some of the persons in Dubai.
(xii) After getting training at Dubai, he came back to Bombay and Anwar met the appellant 1-2 times at Bandra Talab and told him that he has taken training in handling weapons and bombs in Dubai and very soon they would take the revenge of the injustice caused to the Muslims in Bombay.
(xiii) Anwar arrived at Al-Hussaini building on 12.03.1993 and checked the dickeys of all the scooters. Thereafter, he took a steel grey coloured pencil from his coat pocket and inserted it in each of the black coloured soap like chemical, i.e., gun powder kept in the dickeys.
(xiv) The appellant then asked Anwar as to what he was doing, to which he replied that the bombs were ready and by using these bombs, they would take revenge for the injustice caused to their community.
(xv) As directed by Anwar, he took one old blue coloured explosives laden scooter bearing registration No. 2924 and parked the same in a corner of Diamond Market.
(xvi) After 5-6 days of the blast, he was arrested by Worli P.S.
83. From a perusal of the confession of the appellant, it emerges that he worked in close association with the other co-accused persons towards attainment of the objects behind the conspiracy and he also actively participated in the landings and transportation of arms and ammunitions and explosives which landed at Shekhadi. It is also very much clear from his confession that he parked a scooter laden with explosives and fitted with a time pencil detonator in the Diamond Market.
Confessional Statements of co-accused
84. Apart from his own confession, the involvement of the appellant has also been disclosed in the confessional statements of the following co- accused. The legality and acceptability of the confessions of the co- accused has already been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant (A-15) are summarized hereinbelow:
Confessional Statement of Mohammed Shoaib Mohammed Kasam Ghansar (A-9)
84.1 Confessional statement of A-9 under Section 15 of TADA has been recorded on 19.04.1993 (13:10 hrs.) and 22.04.1993 (00:30 hrs.) by Shri Prem Krishan Jain (PW-189), the then DCP, Zone X, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A- 15):
(i) A-9 used to see Gani (A-11), Rafique Madi (A-46), Imtiyaz (A-15), Parvez (A-12), Shafi, Salim and Anwar in the office at Dongri.
(ii) A-15 was present in the house of Anwar on 12.03.1993, when Asgar Yusuf Mukadam (A-10), Mohd. Shoeb and Parvez (A-12) went there with three suitcases filled with RDX.
(iii) A-15 was present along with other co-accused persons at Al-Hussaini building on 12.03.1993 when Anwar inserted time based detonators into the black chemical filled up in the dickeys of the scooters.
Confessional Statement of Asgar Yusuf Mukadam (A-10)
84.2 Confessional statement of A-10 under Section 15 of TADA has been recorded on 23.04.1994 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-15):
(i) A-15 used to attend Tiger’s office at Dongri and assisting in the activities of Hawala transactions including the delivery and receipt of funds.
(ii) A-15 was asked by Anwar to reach the residence of Tiger Memon at Al-Hussaini building on 12.03.1993.
(iii) A-15 took an explosives laden scooter fitted with a time pencil detonator at the instance of Anwar.
Confessional Statement of Abdul Gani Ismail Turk (A-11)
84.3 Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 (22:35 hrs.) and 18.04.1993 (01:15 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A-11, with reference to the appellant, stated as under:-
(i) A-15 was working with Tiger Memon.
(ii) A-15 was present at the Al-Hussaini Building on 27/28th January along with co-accused Tiger Memon, Anwar, Shafi, Yakub Memon, Rahin Memon, Parvez Shaikh, Rafique Madi and from there all of them went to Mhasla and Shekhadi for landings.
(iii) A-15 also visited Shekhadi for 2-3 times and on account of landing not taking place for a few days, they stayed at Hotel Vasava and, thereafter, at Hotel Big Splash, Alibaug.
(iv) On 02/03.02.1993, he visited the Waghani Tower along with A-15 and others and smuggled goods were also brought in using vehicles by co-accused Tiger, Javed Chikna, Dadabhai (A-17), Dawood Taklya and Anwar. The said goods were unloaded and checked by Tiger Memon (AA) and were found to be handgrenades, rifles, pistols, black soap, rounds, electric wires, which were reloaded in vehicles and sent to Bombay.
(v) A-15 was present at Bandra along with Anwar.
(vi) On 07.03.1993, he told the accused that Tiger Memon had returned from Dubai.
Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)
84.4 Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.) by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A-12, with reference to the appellant, stated as under:
(i) He was working in the office of Tiger Memon.
(ii) A-15 took the accused (A-12) to Al-Hussaini Building on the pretext that they have to go for Tigers work wherefrom all the accused persons present there including Tiger Memon left for Mhasla.
(iii) He went to the Shekhadi Coast along with other associates to help Tiger Memon (AA) in the landing of arms and ammunitions and explosives, which was delayed and effected on 03.02.1993, and also in the transportation of the said material to the Waghani Tower and then to Bombay using vehicles containing secret cavities for the said purposes.
(iv) In the second week of February 1993, he again went along with other associates and helped Tiger in landing at Shekhadi Coast and transportation of the consignments to the Tower and thereafter to Bombay.
(v) Tiger Memon gave two passports to Mohammed Hussain with the instruction to hand over the same to the appellant.
(vi) He was present at the residence of Anwar Theba, when Anwar and A-44 left in Maruti Van with A-9, A-10 and A-12 for planting the bombs.
(vii) Thereafter, he reached Al-Hussaini building when Anwar inserted time device detonator in the dickey of the scooters containing black chemical.
Confessional Statement of Dawood @ Dawood Taklya Mohd. Phanse @ Phanasmiyan (A-14)
84.5 Confessional statement of A-14 under Section 15 of TADA has been recorded on 15.04.1993 (17:55 hrs.) and 17.04.1993 (19:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-14, in his confessional statement, with reference to the appellant stated that on 19th January, A-15 along with Rafiq Madi contacted him and informed about the confirmation of his ticket for Dubai and also escorted him to the Airport.
Confessional Statement of Sayyed Abdul Rehman Shaikh (A-28)
84.6 Confessional statement of A-28 under Section 15 of TADA has been recorded on 23.04.1993 (17:00 hrs.) and 01.05.1993 (23:30 hrs.) by Shri Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. His confession further establishes that the appellant (A-15) was a close associate of Tiger Memon and was involved in smuggling activities with him.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
84.7 Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. His confession reveals the following facts:
(i) The appellant came along with Tiger Memon.
(ii) He actively participated in the landing of arms ammunitions and explosives at Shekhadi. He was driving the jeep and transported the arms and ammunitions and explosives smuggled at Shekhadi from Waghani Tower to Bombay.
Confessional Statement of Mohd. Mushtaq Moosa Tarani (A-44)
84.8 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. His confession reveals the following facts:
(i) The appellant was present at the house of Anwar. On the instructions of Anwar, he along with A-44, visited the Al-Hussaini building to see A-10 and left a message with the watchman of the said building to send A-10 with the vehicle at the residence of Anwar. The appellant returned along with A-44. The appellant was also present when A-44 and Anwar left in the Maruti Van which was brought by A-10 alongwith two other boys.
(ii) Anwar showed the time based detonator pencils before the appellant.
(iii) The appellant (A-15) was present at the Al-Hussaini building when A- 44 returned after planting the suitcase and told that he had planted the suitcase in the room as per the conspiratorial plan.
Confessional Statement of Mohd. Rafiqu@ Rafiq Madi Musa Biyariwala (A-46)
84.9 Confessional statement of A-46 under Section 15 of TADA has been recorded on 21.04.1993 (19:00 hrs.) and 23.04.1993 (21:25 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. His statement reveals as under:
(i) The appellant worked with Tiger Memon and attended his Dongri office for assisting him in the business activities apart from landing operations of the smuggled goods.
(ii) He along with the accused and other associates assisted Tiger Memon in the landing at Shekhadi which took place on 03.02.1993, after delay of 2-3 days, and then he arranged for transportation along with Dadabhai (A-17) and others.
Confessional Statement of Sahikh Ali Shaikh Umar (A-57)
84.10 Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. His confession corroborates with the testimony of other accused with regard to the fact that the appellant (A- 15) was working with Tiger Memon.
Confessional Statement of Sujjad Alam @ Iqbal Abdul Hakim Nazir (A-61)
84.11 Confessional statement of A-61 under Section 15 of TADA was recorded on 21.04.1993 by Shri K.L. Bishnoi (PW-193). His confessional statement corroborates with the abovesaid confessions that the appellant (A-15) participated in the landing in February, 1993.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
84.12 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 abovesaid confessions that the appellant (A-15) participated in the landing in February, 1993.
Confessional Statement of Gulam Hafiz Shaikh @ Baba (A-73)
84.13 Confessional statement of A-73 under Section 15 of TADA has been recorded on 15.05.1993 (22:05 hrs.) and 17.05.1993 (01:45 hrs.) by Shri Vinod Balwant Lokhande, the then DCP, Airport Zone, Bombay. His confession reveals as under:
(i) A-73 knows Tiger Memon and his partners including the appellant and other co-accused.
(ii) A-15 was present at the Tower in Mhasla along with other co-accused.
(iii) A-15 was present while unloading of goods was being done from a truck and also at the time of re-loading in the Jeep and tempo.
Confessional Statement of Mobina @ Baya Moosa Bhiwandiwala (A-96)
84.14 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. She stated that she knew the appellant (A-15) as one of Tiger’s men.
85. From the aforementioned confessional statements, it is established that:
(i) The appellant was closely associated with Tiger Memon.
(ii) He was also a close associate of Anwar.
(iii) He used to work with Tiger Memon and assisting him in his smuggling activities.
(iv) A-15 actively participated in the landings of arms and ammunitions and explosives which took place at Shekhadi on both the occasions.
(v) He was present at Anwars house on 12.03.1993 when the other co-accused came there with 3 suitcases filled with RDX.
(vi) The appellant knew that time based detonators were being used to cause explosions at the various selected targets.
(vii) He was also present at Al-Hussaini building on 12.03.1993 at the time when the bombs (vehicles) were being taken to the various locations (targets) selected.
(viii) He drove the scooter filled with RDX, fitted with time device detonator and parked the same at Diamond House.
Deposition of Prosecution Witnesses:
86. 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)
86.1 The relevant material in his evidence is as under:-
(i) He knows the appellant as Imtiyaz;
(ii) He identified the appellant before the court;
(iii) Tiger Memon, Anwar, A-15, Nazir and one other person were present at Hotel Big Splash;
(iv) A meeting was held at about 12.00 p.m. in Hotel Big Splash by Tiger Memon in which PW-2 and the appellant (A-15) and many others were present, thereafter, they all left for Shekhadi coast.
86.2 From the evidence of the Approver (PW2), it is duly established that the appellant participated in the landing at Shekhadi along with other co-accused persons.
Deposition of Deepak Narottamdas Seth (PW-21)
86.3 PW-21 is an eye-witness. At the relevant time, he was a Broker in Zaveri Bazaar. The following facts emerge from his deposition:
(i) On 12.03.1993, at 2 p.m., he saw the appellant (A-15) quarrelling with a feriwala in front of Diamond House.
(ii) The appellant forcibly parked a blue scooter bearing registration no. MH-02-C-2924.
(iii) The appellant left the scooter on the pretext of urgent work and said that he would take it away after 5 to 10 minutes.
(iv) He identified the appellant before the Court.
(v) Earlier, he had identified the appellant in the TIP held on 13.05.1993 by Sharad Vichare (PW-459) for which Memorandum Panchnama Exhibit Nos. 1459 and 1459-A were prepared by him.
86.4 Ms. Farhana Shah, learned counsel for the appellant contended that the evidence of PW-21 is contradictory to that of PW-453, who is a Constable and PW-547, PI Jadhav, in view of the above, we are unable to accept the said argument. Equally, her claim that PW-21 is not trustworthy and his evidence should be discarded, is liable to be rejected.
Deposition of Tukaram Ganpat Shelambkar (PW-25)
86.5 PW-25 is an eye-witness to the occurrence. He was a hawker in Zaveri Bazaar. From his deposition, the following facts emerge:
(i) He had an argument with the appellant as he wanted to park the scooter at the place where PW-25 wanted to sell his goods.
(ii) The appellant parked the scooter and left away.
(iii) He identified the Bajaj blue coloured scooter MH 2924 (Article 22) which was parked on 12.03.1993 at the Police Station.
(iv) He identified the appellant in the TIP held on 21.03.1993 and 13.05.1993 conducted by Shri Vasant Kamble (PW-462) and Shri Sharad Vichare (PW-459) respectively. Though he failed to identify the appellant in the Court, he identified the scooter which was parked at Dhanji Road.
86.6 From the materials on record, it is clear that the identity of the appellant who parked the blue scooter bearing registration no. MH-02-C-2924 has been established.
87. It was contended by Ms. Farhana Shah, learned counsel for the appellant that PW-25 has not identified the appellant before the Court, so his evidence should not be relied upon. It is to be noted that the witness deposed before the Court on 13.12.1995, i.e., after a lapse of two and a half years after the incident. After a gap of more than two years, it is plausible that memory could have faded and accordingly the witness failed to identify him before the court. However, during the identification parades, which were conducted soon after the incident, PW-25 identified the appellant to be the person who quarreled with him and parked the scooter at Diamond House. The deposition of PW 25 also corroborates with the evidence of PW-21.
Subhash Dattaram Jhadav (PW-547)
87.1 PW-547 is a police officer and was attached with L.T. Marg Police Station as PI. He deposed as under:
(i) He reached the spot along with Panch witnesses and Inspector Nand Kumar Chaugule (PW-444).
(ii) He saw the dickey of the scooter full of a blackish oily substance with pallets and he also saw one pipe and three tubes embedded in the said material.
(iii) He took sample of the blackish material and the remaining material was taken out and sealed in bags.
(iv) He drew a spot Panchnama being Exhibit 1447
87.2 The above fact is also corroborated by the deposition of Nandkumar Chaugule (PW-444), who was an Inspector and has deposed about the fact of going to Diamond House and defusing the detonator which was inserted in the blackish substance.
87.3 The abovesaid articles were seized and sent to FSL for opinion vide letter Exhibit No. 1866. The FSL Report Exhibit No. 1867 confirms that the material which was taken out from the dickey of the scooter was highly explosive substance.
Purchase of Bajaj Scooter
87.4 The scooter bearing registration No. MH-02-C-2924 (Article 22) was purchased by Anwar Theba (AA) which fact has been proved by Shamshudin Shaikh (PW-268), who was engaged in the business of buying and selling motorbikes and scooters. He deposed that he knew Anwar Theba (AA) and had sold the said scooter to him for a cost of Rs. 19,000/- which was paid by him in cash. The deposition of PW-268 is marked as Exhibit 1113.
Deposition of Shankar B. More (PW 275)
87.5 PW-275 was working as a Pump Operator for water pump installed at Nutan Nagar Cooperative Society. Besides this, he used to clean the vehicles of the members residing in the society for which they used to pay him. He identified the scooter bearing Registration No. MH-02-C-2924 (Art. 22) and informed that it belonged to Anwar Bhai as he used to clean the scooter for him.
88. In the earlier part of our order, we have expressed our views about the acceptability of the statement of Md. Usman Jan Khan (PW-2), validity of the confessional statement of the accused as well as co-accused implicating the appellant (A-15) and his relationship with Tiger as well as the part played by him in association with him. Learned counsel for the appellant prayed for discarding his confession. However, in view of the explanation and the evidence of I.O.s and recording officers, discussion and ultimate conclusion of the Designated Court, we reject her request. The appellants involvement in landing, his association with Tiger Memon, participation in planting scooter bomb have been fully established by the prosecution. We agree with the conclusion arrived at by the Designated Court.
Sentence:
89. Even at the beginning, Ms. Farhana Shah, learned counsel appearing for the appellant highlighted that out of the life imprisonment, the appellant had served nearly 14 years in jail. She also highlighted that the appellant is suffering with AIDS/HIV+ and is a sick person. She also placed his treatment particulars furnished by J.J. Hospital and recent medical reports showing his CD Count and his Blood Count. She further pointed out that in spite of continuous treatment, even at this stage, he is suffering from AIDS. As a matter of fact, considering his health condition, this Court has granted him interim bail on medical grounds and that is being continued even now. The fact that the appellant is suffering from AIDS/HIV+ has not been disputed by the CBI. Taking note of all these aspects including the fact that he was in jail nearly for 14 years, while confirming the conviction and sentence, in view of special circumstances, though the life sentence is the appropriate sentence for the proved charges, we order that there is no need to send him back to prison. In the peculiar circumstance, we make it clear that the period already undergone would be sufficient and with this direction, we dispose of his appeal.
