Shahnawaz Hajwani Vs. State of Maharashtra
EmailAppeal: Criminal Appeal No. 203 of 2008
With
State of Maharashtra thr. CBI v. Shahjahan Dadamiya Hajwane
Criminal Appeal No. 396 of 2011
And
State of Maharashtra thr. CBI v. Issaq Mohd. Hajwane
Criminal Appeal No. 414 of 2011
Criminal Appeal No. 203 of 2008
With
State of Maharashtra thr. CBI v. Shahjahan Dadamiya Hajwane
Criminal Appeal No. 396 of 2011
And
State of Maharashtra thr. CBI v. Issaq Mohd. Hajwane
Criminal Appeal No. 414 of 2011
Criminal Appeal No. 203 of 2008
Petitioner: Shahnawaz Hajwani
Respondent: State of Maharashtra
Apeal: Criminal Appeal No. 203 of 2008
With
State of Maharashtra thr. CBI v. Shahjahan Dadamiya Hajwane
Criminal Appeal No. 396 of 2011
And
State of Maharashtra thr. CBI v. Issaq Mohd. Hajwane
Criminal Appeal No. 414 of 2011
Criminal Appeal No. 203 of 2008
With
State of Maharashtra thr. CBI v. Shahjahan Dadamiya Hajwane
Criminal Appeal No. 396 of 2011
And
State of Maharashtra thr. CBI v. Issaq Mohd. Hajwane
Criminal Appeal No. 414 of 2011
Criminal Appeal No. 203 of 2008
Judges: P. Sathasivam & B.S. Chauhan, JJ.
Date of Judgment: Mar 21, 2013
Head Note:
Criminal Laws
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3) – Arms Act, 1959, Sections 3 and 7 read with Sections 25(I-A), (l-B) – Conviction under – Bombay blast case – Appellant Nos. 106 and A.111 charged for participating in training in arms and ammunitions with Tiger Memon (AA) – Appellant 79 charged under various heads i.e. possession of contraband, aiding terrorist activities etc. – Dumping of arms – Recovery at his instance – PWs 105, 106, who saw training in arms and ammunition, deposed about a cardboard target fixed near Sandheri Hillocks and use of gun for firing – PWs. named A.79, A.106 and A.111 and recognised them in Court – Confessional statement of A.11, A.14, A.17 corroborated appellant’s participation in training – PW.104, being the panch witness, saw A.79 pointing towards the place where he dumped hand-grenades and saw some hand-grenades being recovered with empty cartridges – 13 live hand-grenades defused – However, no evidence against A79, to show commission of any act or participation in conspiratorial meetings or knowledge about commission of serial bombs blasts – Designated Court, convicted A.79 under Section 3(3) but acquitted him of the offence of larger conspiracy – Similarly as participation of A.106 and A.14 in training along with A.79, stood proved, they were convicted under Section 3(3) of TADA. Held, appeal fails.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Sections 3(3) – Arms Act, 1959, Sections 3 and 7 read with Sections 25(I-A), (l-B) – Conviction under – Bombay blast case – Appellant Nos. 106 and A.111 charged for participating in training in arms and ammunitions with Tiger Memon (AA) – Appellant 79 charged under various heads i.e. possession of contraband, aiding terrorist activities etc. – Dumping of arms – Recovery at his instance – PWs 105, 106, who saw training in arms and ammunition, deposed about a cardboard target fixed near Sandheri Hillocks and use of gun for firing – PWs. named A.79, A.106 and A.111 and recognised them in Court – Confessional statement of A.11, A.14, A.17 corroborated appellant’s participation in training – PW.104, being the panch witness, saw A.79 pointing towards the place where he dumped hand-grenades and saw some hand-grenades being recovered with empty cartridges – 13 live hand-grenades defused – However, no evidence against A79, to show commission of any act or participation in conspiratorial meetings or knowledge about commission of serial bombs blasts – Designated Court, convicted A.79 under Section 3(3) but acquitted him of the offence of larger conspiracy – Similarly as participation of A.106 and A.14 in training along with A.79, stood proved, they were convicted under Section 3(3) of TADA. Held, appeal fails.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Section 3(3) – Bombay blast Case Conviction under Section 3 (3) of Tada of A 106 and A-111 Acquittal of the charge of large conspiracy – Appeal filed by State No confessional statement by both the accused PW 106 saw them setting with 5 or 6 persons, two person armed with gun standing and a card board target fixed – Designated court convicted them under Section 3 (3) of Tada as they facilitated T.M. (AA) in other aspects – Sitting with persons cannot be a parameter to hold them guilty of taking arms training. Held no interference needed.
Terrorist and Disruptive Activities (Prevention) Act, 1987
Tada 3 (3) Convection of A 79 under Acquittal of the charge of larger conspiracy Appeal A-79 had knowledge of contraband to be used for terrorist activity Dump them in creek water Recovery at his instance – Whether acquittal of the charges of larger conspiracy justified. Held no, acquittal merely on the ground, that he was not the resident of Bombay, he did not know the places where bomb had to be thrown and he did not participate in conspiratorial meeting, was not correct, specially when court held him guilty of taking arms training. Appeal allowed.
Held:
The appellant (A-79) could not furnish any explanation that he had no knowledge of said contraband material for some other reason, and his possession of such articles for such a long period considered along with his participation in the training programme leads to no other conclusion than himself being party to conspiracy to commit terrorist act. (Para 504)
However, having regard to fact that there exists no other evidence of commission of any act by the appellant (A-79) and there is no evidence of him having been to Bombay or having participated in conspiratorial meetings, it would be difficult to accept that knowledge of commission of serial bombs blasts in Bombay can be attributed to him. Since there is a paucity of evidence to show that the appellant (A-79) had any knowledge regarding the places at which the explosions were committed in Bombay, he cannot be held liable for the offence of larger conspiracy for which the charge at head firstly is framed against him. However, considering the acts and offences committed by him and particularly the retaining of such a contraband material and disposing the same definitely establishes himself being a party to conspiracy to commit terrorist act punishable under Section 3(3) TADA. (Para 504.1.)
It is evident that Harishchandra Keshav Pawar (PW-105) named three persons from his village participating in the arms training at Sandheri hillocks and one of them had been Issaq Mohmed Hajwani (A-79). Rajaram Ramchandra Kadam (PW-106) named all the three appellants to be members consisting of 8-10 persons participating in the training of arms and ammunition in Sandheri hillocks on 8.3.1993 and he identified all the three appellants alongwith others in the court. The other co-accused, particularly, Abdul Gani Ismail Turk (A- 11), Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14) and Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), in their confessional statements had also named all the three appellants as participants in the arms training on 8.3.1993 at Sandheri hillocks. The evidence of the aforesaid persons is trustworthy as we do not see any reason to discard the same at least to the extent of participation of these three appellants in arms training on 8.3.1993 at Sandheri hillocks. (Para 506)
The learned Designated Court after appreciating the evidence came to the conclusion that there was sufficient evidence to convict the respondents (A-106 and A-111) under Section 3(3) TADA, as they also facilitated Tiger Memon (AA) in other aspects, but merely sitting at the hillock, did not mean that they participated in the training and therefore, it could not be the basis of assuming that they were party to the training programme. (Para 511)
The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied. (Para 512)
In view of the above, we do not see any cogent reason to take the view contrary to the view taken by the learned Special Judge. (Para 513)
Respondent (A-79) had knowledge of the said contraband material being arms and ammunition and had been brought for terrorist activities and he was found in possession of the handgrenades and empties; it was further found that A-79 had thrown the same in the creek water to absolve himself of the offences. We are of the view that the Special Judge was not justified in acquitting him from the first charge of larger conspiracy merely on the ground that he did not know about the places where the bombs had to be thrown and he was not the resident of Bombay and did not participate in the conspiratorial meetings. The finding of fact recorded by the Special Judge is also contradictory as the court held that he participated in the arms training at Sandheri. However, he observed that the evidence does not disclose that any of those accused had been trained in handling of handgrenades. (Para 519)
In view of the fact that there is sufficient material on record that the respondent participated in the training of handling the handgrenades, there was no occasion for the learned Special Judge to take such a view. (Para 520)
In view of the above, the appeal stands allowed. (Para 520.1)
JUDGEMENT:
492. This appeal has been preferred by Shahnawaz Hajwani (A- 106), Sikkandar Issaq Hajwane (A-111) and Issaq Mohammed Hajwane (A-79), against the judgment and order dated 25.5.2007, passed by Special Judge of the Designated Court under the TADA for Bombay Blast, Greater Bombay, in the Bombay Blast Case No. 1/1993.
The first and second appellant (A-106 and A-111) have been convicted under Section 3(3) TADA, and awarded the punishment of 5 years RI, alongwith a fine of Rs.10,000/-,and in default of payment of fine, to further suffer RI for two months.
The third appellant (A-79) has been convicted partly for charge first of conspiracy under Section 3(3) TADA, and has been awarded 7 years RI, alongwith a fine of Rs.25,000/-, and in default of payment of fine, to further suffer RI for 6 months. Under Section 3(3) TADA, he has been awarded 5 years RI, and a fine of Rs.10,000/-, in default of payment of fine, to further suffer RI for two months. Under Section 6 TADA, he has been awarded 7 years RI, and a fine of Rs.25,000/-, in default of payment of fine, to further suffer RI for six months. He had been convicted for charge at head fourthly, but no separate sentence has been awarded under Sections 3 and 7 read with Sections 25(1-A) (1-B)(a) of the Arms Act. He (A-79) had further been convicted under Section 201 IPC and awarded a sentence of 5 years and a fine of Rs.10,000/-, in default of payment of fine to suffer further RI of 2 months.
493. In addition to the general charage of conspiracy, all the three appellants had been charged for their overt acts in connection with the Sandheri training episode. Appellant No. 1 (A-106) and appellant No.2 (A-111) had been charged only for participating in the training with arms and ammunition with Tiger Memon (AA) at Sandheri Hillocks on 8.3.1993, while appellant No.3 (A-79) had also been charged under various heads of having possession of 13 handgrenades unauthorisedly between 1.4.1993 till 3.4.1993, with the intent to aid terrorist activities. Fourthly, under Sections 3 and 7 read with Section 25 (1-A)(1-B)(a) of the Arms Act, which he had dumped in the sea coast abutting Gandharwadi village which had been recovered at his instance between 1.4.1993and 3.4.1993.
Hence, this appeal.
494. Shri Sushil Karanjekar, learned counsel appearing for the appellants, has submitted that impugned judgment and order of conviction is not sustainable for the reason that recovery memo cannot be relied upon and the recovery had not been made in accordance with law. The learned Special Judge erred in recording the findings that the appellants had participated in the training for handling of arms at Sandheri on 8th January, 1993. In view of the fact that the appellants have not participated in acquiring any knowledge in handling of arms is meaningless and, therefore, their participation in the training cannot be relied upon. In view of specific findings recorded by the learned Designated Court that the appellants were not even known the contents of the contraband, their conviction under any provision of TADA is not sustainable. Therefore, the appeal deserves to be allowed.
495. On the contrary, Shri Mukul Gupta, learned senior counsel appearing for the respondent, has vehemently opposed the appeal, contending that the findings of facts recorded by the learned Special Judge do not warrant any interference, as the same are opposed on appreciation of evidence, and the same cannot be held to be perverse. Recovery had been made in accordance with law. The participation of the appellants in the training of arms at Sandheri Hillock on the relevant date is proved by cogent evidence. The appeal lacks merit and is liable to be dismissed.
496. We have heard learned counsel for the parties and perused the records.
497. Evidence against the appellants:
(a) Deposition of Mahadeo Yeshwant Jadav (PW-103)
(b) Deposition of Ashok Vasant Vichare (PW-104)
(c) Deposition of Harishchandra Keshav Pawar (PW-105)
(d) Deposition of Rajaram Ramchandra Kadam (PW-106)
(e) Deposition of Namdev Pundlik Mahajan, A.P.I. (PW-587)
(f) Deposition of Chandrakant Sambhaji Pawaskar (PW-609)
Deposition of Harishchandra Keshav Pawar (PW-105)
498. He is a resident of the village Sandheri. He deposed that on 8.3.1993 just after Holi, he heard gunshot noises made by several persons at about 9.00 a.m. when he was sitting at State Transport bus stand of his village Sandheri. He (PW-105) went alongwith his friends Shahnawaz Hajwani, Juber Hajwani, Inayat Hajwani and Ashfaq Ramzani towards the site known as Chinchecha Mal on the hillock towards the western side of Sandheri which is 1 K.M. from the said bus stand. He (PW-105) saw many cardboard targets fixed at different places around the hillock. Two-three guns were being used for firing. The guns were of arms length. He (PW-105) knew three persons out of 8-10 persons present there. They were Issaq Hajwane (A-79), Hamid Dafedar (now dead) and Sharif Parkar (A- 17). He (PW-105) was present at the said place for a short while as Hamid Dafedar rushed to them and threatened them that if they did not leave they would be killed. Hence, the witness (PW-105) and his friends ran away. He identified the said three named persons in the court including Issaq Hajwane (A-79).
Deposition of Rajaram Ramchandra Kadam (PW-106)
499. He (PW-106) is a resident of village Sandheri aged 71 years. He deposed that just after Holi on 8.3.1993 he (PW-106) was present at village Sandheri and after hearing the gunshots he went towards Chinchecha Mal, a place nearby Gardav Wadi of village Sandheri at about 9.30 to 10.00 a.m. After reaching there he (PW- 106) saw cardboard targets were fixed near the hillock which were of square shape and approximately 2 ^ feet in size. Some persons were sitting at the said Mal, they got up and asked him to leave the said place immediately otherwise he (PW-106) would be shot dead. The persons who had threatened him were not known to him. However, five persons amongst the persons who were sitting there, were residents of his village and they included Issaq Hajwane (A- 79), Shahnawaz Hajwani (A-106), Sikkandar Issaq Hajwane (A- 111), Hamid Dafedar, and Sharif Parkar. The said witness (PW- 106) identified all the five persons in court.
Deposition of Ashok Vasant Vichare (PW-104)
500. He (PW-104) was a resident of village Falsap, 3 K.ms. away from Sandheri and deposed that he (PW-104) knew the appellant (A-79) for a long time and on 1.4.1993, he was called to Goregaon Police Station by a Constable who told him that he must be the panch witness to the disclosure statement of Issaq Hajwane (A-79) who was in their custody. Thereafter, the appellant (A-79) made a disclosure statement, according to which, the police officials, the appellant (A-79) and both the panch witnesses reached near Sandheri Jetty when the appellant (A-79) asked the driver to stop the vehicle. They got off the vehicle and the appellant (A-79) took a lead and all other persons followed him and reached Sandheri Jetty on foot. The appellant (A-79) took a stone and threw the same at a particular spot in the water and told them that they had thrown handgrenades and empty cartridges within the vicinity of the place at which he had thrown the stone. Thereafter, divers/swimmers and boatmen were called to the said place by the police. The search by the divers/swimmers continued upto 3.00 p.m. but they were only able to find two handgrenades.
Search was conducted with the help of the naval squad which commenced search at 10.00 a.m. and continued upto 6.00 p.m. in the presence of panch witnesses and they found four handgrenades and seven empty cartridges from the creek water. The panchanama of the said recovery was drawn at the said place at about 6.00 p.m. The same was read over to the co-panchas and it was signed by them.
On the next day search was again conducted by the naval squad and they found, 72 empties. The same had been of yellow colour and were of size of an empty cartridge for a rifle. Some of them were bearing markings 71/71. Some of them were having marking 661/71 and some of them were of 991/72. In respect of the same, the panchanama was drawn which was read over to the panchas and signed by them.
Deposition of Namdev Pundlik Mahajan, A.P.I. (PW-587)
501. He deposed that while he was on duty on 28th/29th March, 1993 in Goregaon Police Station, he was informed by one of the police officials that in connection with the Bombay Blast that had occurred on 12.3.1993, Sharif Parkar had brought some bullets from Bombay and carried out firing practice with an AK-56 rifle at Sandheri Hillocks on 8.3.1993. He had immediately given the said information to S.P., Shri T.S. Bhal who instructed him to go to the said place. He alongwith other police officials reached Sandheri at 2.00 p.m. and found that the incident had occurred at Chinchecha Mal in the hillocks of Sandheri. Next day, on the instructions of Shri T.S. Bhal he reached Sandheri Village at about 6.00 a.m. Three police officials and 20 constables had already reached the said place. He inspected the said spot and drew up the panchanama. He recovered three empty cartridges of a rifle bearing some marking on it, six lead pieces, the broken branches of the tree, the targets prepared out of a cardboard, the stones bearing the marks of bullets and these articles were wrapped in a paper. The packet was tied with sutli and it was sealed. The panchnama was read over to the co-panchas and it was signed by him and other co-panchas.
501.1 He had further deposed that on 30.3.1993 while recording the statement of some persons, the residents of Sandheri he got the clue about the involvement of one Hamid and Shahjahan, the residents of Sandheri in the incident of training at Sandheri hillocks on 8.3.1993.
501.2 He deposed that in spite of his best efforts he could not trace out the accused on 31.3.1993. However, on 1.4.1994 he got the information that Hamid, Shahjahan, Issaq Hajwane and Sikkandar Issaq Hajwane had taken shelter in the Sandheri forest. He reached there alongwith other police officials and found them and brought them to Goregaon Police Station for inquiry. After being satisfied that they were accused involved in C.R. No.6/93, they were arrested at 10.15 a.m.
501.3 On the same day, at about 10.30 a.m. Issaq Hajwane (A-79) expressed his desire to make voluntary statement. The witness immediately called two panch witnesses for drawing the panchnama. He deposed that one panch witness was Ashok Vichare (PW-104), and he did not remember the name of the other panch witness.
Deposition of Chandrakant Sambhaji Pawaskar (PW-609)
502. He is a police officer and deposed that he had taken over the investigation from Namdev Mahajan (PW-587) on 2.4.1993, and subsequently recorded the statement of Rajaram Ramchandra Kadam (PW-106) and Tukaram Babu Nagaonkar (PW-176) and others.
502.1 He further deposed that on 17.4.1993, he sent the articles recovered from Chinchecha Mal to a Chemical Analyst with a forwarding letter for carrying out the examination and sending a report.
502.2 He further deposed that on 17.4.1993 he had not seen the empty cartridges but had described markings on the said empties in Exh.2112 on the basis of the description of the empty cartridges in Panchnama i.e. Exh.539. The said empty cartridges sent to Chemical Analyst for examination on 17.4.1993 were bearing marking 661/71 and the panchnama shown to him does not reveal any empty cartridge bearing marking 661/71 being seized under the same panchnama.
Deposition of Mahadeo Yeshwant Jadav (PW-103)
503. He is an agriculturist. He was called on 29th March, 1993 to act as a panch witness by the police from Goregaon Police Station. He deposed that he alongwith Shri Patil reached Chinchecha Mal at about 9.00 a.m. Some 4-5 police officials were already present at the place. The police asked the panch witnesses to collect broken branches, pieces of cardboard, three empty cartridges, six lead pieces and pieces of stones lying on the ground and the police took charge of the said articles. The police effected the writings about the said things and signatures of the panch witnesses were obtained on the writings. The said writings were read over to them by the police before their signatures.
504. After appreciating the entire evidence, the learned Designated Court recorded the finding that the appellant (A-79) could not furnish any explanation that he had no knowledge of said contraband material for some other reason, and his possession of such articles for such a long period considered along with his participation in the training programme leads to no other conclusion than himself being party to conspiracy to commit terrorist act.
504.1 However, having regard to fact that there exists no other evidence of commission of any act by the appellant (A-79) and there is no evidence of him having been to Bombay or having participated in conspiratorial meetings, it would be difficult to accept that knowledge of commission of serial bombs blasts in Bombay can be attributed to him. Since there is a paucity of evidence to show that the appellant (A-79) had any knowledge regarding the places at which the explosions were committed in Bombay, he cannot be held liable for the offence of larger conspiracy for which the charge at head firstly is framed against him. However, considering the acts and offences committed by him and particularly the retaining of such a contraband material and disposing the same definitely establishes himself being a party to conspiracy to commit terrorist act punishable under Section 3(3) TADA.
505. The said material which was sent for chemical analysis particularly live handgrenades were defused, as deposed by Pramod Kisanrao Dhaware (PW-598). He also issued a certificate that 13 handgrenades had been defused which were given to Shri V.M. Ghadshi .
506. From the evidence referred to hereinabove, it is evident that Harishchandra Keshav Pawar (PW-105) named three persons from his village participating in the arms training at Sandheri hillocks and one of them had been Issaq Mohmed Hajwani (A-79). Rajaram Ramchandra Kadam (PW-106) named all the three appellants to be members consisting of 8-10 persons participating in the training of arms and ammunition in Sandheri hillocks on 8.3.1993 and he identified all the three appellants alongwith others in the court. The other co-accused, particularly, Abdul Gani Ismail Turk (A- 11), Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14) and Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), in their confessional statements had also named all the three appellants as participants in the arms training on 8.3.1993 at Sandheri hillocks. The evidence of the aforesaid persons is trustworthy as we do not see any reason to discard the same at least to the extent of participation of these three appellants in arms training on 8.3.1993 at Sandheri hillocks.
In view of the above, the appeal is dismissed.
Criminal Appeal No. 396 of 2011
507. The respondents (A-106 & A-111) had been acquitted of the charge of conspiracy. Hence, the State has filed appeal against them.
508. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the said respondents had been very closely associated with terrorist activities and had participated in the training at Sandheri with Tiger Memon (AA). Therefore, they ought to have been convicted for the charge of conspiracy also.
509. On the contrary, Shri Sushil Karanjekar, learned counsel appearing for the respondents (A-106 and A-111) has vehemently opposed the appeal, contending that they were convicted and have served substantial part thereof. The respondents (A-106 and A- 111) did not participate in the training at Sandheri, and at the most, they could be held to be silent spectators of the training and therefore, could not be involved in the offence. Thus, the appeal is liable to be dismissed.
510. None of the said respondents (A-106 and A-111) has made any confession. The evidence against them regarding the training at Sandheri is only by Rajaram Kadam (PW-106), who had deposed in the court that on 8.3.1993, some people were being trained in handling of arms at Chinchecha Mal in the morning at about 10 a.m. As there was continuous firing he went to the said hillock in order to find out what was happening. There he saw two persons armed with guns standing at the said place and 5-6 persons were sitting at Chinchecha Mal. He also saw a cardboard target fixed nearby the hillock. One person with the beard from the persons who were sitting there got up and asked him to leave the hillock otherwise he would be shot by the gun. The witness (PW- 106) was frightened and immediately returned to his village. He did not know the person who had threatened him or the other persons who were having the arms. About 4 to 5 persons from his village were amongst the persons who were sitting at the said place at that time including these two respondents (A-106 and A-111). He identified both the respondents (A-106 and A-111) in court as the persons sitting at Chinchecha Mal.
511. The learned Designated Court after appreciating the evidence came to the conclusion that there was sufficient evidence to convict the respondents (A-106 and A-111) under Section 3(3) TADA, as they also facilitated Tiger Memon (AA) in other aspects, but merely sitting at the hillock, did not mean that they participated in the training and therefore, it could not be the basis of assuming that they were party to the training programme.
512. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
513. In view of the above, we do not see any cogent reason to take the view contrary to the view taken by the learned Special Judge, considering the parameters laid down by this court for entertaining the appeal against the order of acquittal. The appeal lacks merit, and is accordingly, dismissed.
Criminal Appeal No. 414 of 2011
514. The respondent (A-79) had been acquitted of the charge of conspiracy. Hence, the State has filed appeal against him.
515. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that there was enough evidence and particularly, the confessional statement made by Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), and the depositions of Mahadeo Jaswant Jadav (PW-103), Ashok Vichare (PW-104), Harish Chandra Pawar (PW-105), Rajaram Kadam (PW-106), and Namdev Pundlik Mahajan (PW-587), to convict the respondent for the first charge of conspiracy. Thus, the court below committed an error in acquitting the respondent from the said charge, and thus on that count, the respondent should be convicted.
516. Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that considering the parameters for interference in an appeal against the order of acquittal, no interference is required. The respondent has already suffered sufficiently, and he has been convicted on various other charges. Thus, the appeal is liable to be dismissed.
517. The Designated Court after appreciating the entire evidence came to the following conclusion:
However, case regarding A-79 clearly appears to be different. There exists an evidence denoting that in consequent to information given by A-79, 13 handgrenades and empties were recovered/seized by police during the period from 1.4.1993 to 3.4.1993 from the sea coast at Gandharwadi. The said facet considered on the backdrop that training programme had taken place on 8th of March, 1993 or thereabout leads to the conclusion of A-79 having the knowledge of such a contraband article in the month of April 1993 and the same being recovered from the place shown by him. Now considering in proper perspective the information furnished by A-79 his knowledge of such material lying at the said place and the reason because of which he was having the same i.e. his authorship in dumping the material at the said place. All the said evidence clearly reveals that all the said material must have been with A-79 after the training programme was complete and/or at least the said evidence and the ultimate act committed by him reveals that himself having dominum and control over the said material and hence consequently being in possession of same. Thus having regard to the said facets leads to no other conclusion that A-79 being also guilty for offence under Section 6 of TADA, offences under Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of Arms Act and Section 201 IPC.
In addition to same and having regard to fact that no explanation had come forward from A-79 that he was having knowledge of said contraband material for some other reason and his possession of such articles for such a long period considered along with his participation in the training programme leads to no other conclusion than himself being party to conspiracy to commit terrorist act. However, having regard to fact that there exists no other evidence of commission of any act by A-79, himself being not a resident of Bombay, no evidence of himself having been to Bombay or having participated in conspiratorial meeting, it will be difficult to accept that knowledge of commission of serial bomb blasts in Bombay can be attributed to him. Since there is a paucity of evidence to show that A-79 was having any knowledge regarding the places at which the explosions were committed in Bombay he cannot be held liable for the offence of larger conspiracy for which charge at head firstly is framed against him. However, considering the acts and offences committed by him and particularly the retaining of such a contraband material and disposing the same definitely establishes himself being party to conspiracy to commit terrorist act punishable under Section 3(3) of TADA.
The court further held:
The same discloses that A-79 was found guilty for commission of offence of conspiracy to commit terrorist act, punishable under Section 3(3) of TADA and he was also found guilty on fourother counts for commission of offences under Sections 3(3) and 6 of TADA, Sections 3 & 7 read with Section 25(1-A)(1-B)(a) of Arms Act and Section 201 IPC.
Without unnecessarily reiterating every aspect connected with decision arrived accordingly, in short it can be said that each of the said accused was found guilty accordingly mainly due to acts committed by him in connection with Sandheri training Episode which has taken place on 8th of March, 1993 at Borghat and Sandheri in which prime absconding accused Tiger Memon had organised a training camp for imparting a training of handling arms, ammunition and handgrenades to the persons taken from Bombay and so also local persons from the area of Sandheri.
The evidence surfaced and/or reasoning given thereon earlier also reveals that all the aforesaid accused persons were local residents and were not from Bombay. The same also does not disclose that they had any prior connection with Tiger Memon or any of the prime accused involved in this case, prior to their participation in training programme or even thereafter. Similarly, the evidence does not disclose any of these accused having been trained in handling of handgrenades. Though it is true that evidence have surfaced regarding Tiger Memon having imparted such a training of throwing of handgrenades at a place by name Manjeri Ghat, Waghjai etc. still the same does not disclose that the same was imparted to any local person and on the contrary evidence discloses that the same was given to the persons, who were taken by Tiger Memon from Bombay to said place.
It is significant to note that though A-79 has been held guilty accordingly still no evidence has surfaced on the record of A-79 having used the handgrenades with him for the purposes of commission of any terrorist acts of committing explosion or any other acts to further the objective of conspiracy to which he was a party. It is furthersignificant to note that no evidence has surfaced on the record to reveal that A-79 held guilty for offence of conspiracy or even A-106 & A-111 at any point of time had been to Bombay for commission of any act furthering object of criminal conspiracy, to which A-79 was found to be a party. Needless to add that acts committed by each of the accused were confined to Sandheri and the same had never transcended beyond the said area and none of them and particularly A-79 is not found to have committed any act in the area of Bombay i.e. the place at which serial blasts were committed, resulting into deaths of and/or injuries to many.
Having regard to all the aforesaid facets and particularly taking into consideration the extent of acts committed by A-79 he was found guilty for offence of conspiracy to the extent i.e. only for offence of conspiracy to commit terrorist acts made punishable under Section 3(3) of TADA or in other words A-79 was not found guilty for a party to a conspiracy for the acts for which the charge at head firstly was framed against him. Since elaborate reasoning for coming to such a conclusion, being already recorded in the earlier part of the judgment and so also the aspect of framing such elaborate charge, etc. being also recorded explained during the said earlier part of reasoning and so also while making a common discussion the earlier part of the sentence part of judgment and so also while discussing about awarding sentence to accused, who had acquired the training at Pakistan i.e. A-77, 92, 94, 95, 108, 115, it will be wholly unnecessary for once again repeat the said reasoning.
As stated earlier prosecution has demanded for giving maximum penalty prescribed under the law for all the aforesaid accused who according to prosecution i.e. A-106 to A-111 falling in second group while A-79 falling in the first group made by learned Chief Public Prosecutor i.e. the group of accused found guilty for commission of offences under TADA and so also under otherenactments. During the discussion made earlier for reasons already given it has been already ruled that such a blanket attitude cannot be taken while determining the sentence for such accused placed in said group as different penalty ranging from 5 years to life imprisonment with fine has been prescribed under TADA for commission of various acts/offences as prescribed under Section 3(3) of TADA including for offence of conspiracy to commit terrorist acts made punishable under the same.
518. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
519. In view of the fact that after appreciating the entire evidence the learned Special Judge reached the conclusion that the case of respondent (A-79) was entirely different from the other co-accused, particularly those who had not participated in the training of arms. It was further held that respondent (A-79) had knowledge of the said contraband material being arms and ammunition and had been brought for terrorist activities and he was found in possession of the handgrenades and empties; it was further found that A-79 had thrown the same in the creek water to absolve himself of the offences. We are of the view that the Special Judge was not justified in acquitting him from the first charge of larger conspiracy merely on the ground that he did not know about the places where the bombs had to be thrown and he was not the resident of Bombay and did not participate in the conspiratorial meetings. The finding of fact recorded by the Special Judge is also contradictory as the court held that he participated in the arms training at Sandheri. However, he observed that the evidence does not disclose that any of those accused had been trained in handling of handgrenades.
520. In view of the fact that there is sufficient material on record that the respondent participated in the training of handling the handgrenades, there was no occasion for the learned Special Judge to take such a view.
520.1 In view of the above, the appeal stands allowed. The respondent is awarded life imprisonment. The respondent is directed to surrender before the learned Designated Court within a period of four weeks to serve out the remaining sentence, failing which the Designated Court will secure his custody and send him to jail to serve out the sentence.
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The first and second appellant (A-106 and A-111) have been convicted under Section 3(3) TADA, and awarded the punishment of 5 years RI, alongwith a fine of Rs.10,000/-,and in default of payment of fine, to further suffer RI for two months.
The third appellant (A-79) has been convicted partly for charge first of conspiracy under Section 3(3) TADA, and has been awarded 7 years RI, alongwith a fine of Rs.25,000/-, and in default of payment of fine, to further suffer RI for 6 months. Under Section 3(3) TADA, he has been awarded 5 years RI, and a fine of Rs.10,000/-, in default of payment of fine, to further suffer RI for two months. Under Section 6 TADA, he has been awarded 7 years RI, and a fine of Rs.25,000/-, in default of payment of fine, to further suffer RI for six months. He had been convicted for charge at head fourthly, but no separate sentence has been awarded under Sections 3 and 7 read with Sections 25(1-A) (1-B)(a) of the Arms Act. He (A-79) had further been convicted under Section 201 IPC and awarded a sentence of 5 years and a fine of Rs.10,000/-, in default of payment of fine to suffer further RI of 2 months.
493. In addition to the general charage of conspiracy, all the three appellants had been charged for their overt acts in connection with the Sandheri training episode. Appellant No. 1 (A-106) and appellant No.2 (A-111) had been charged only for participating in the training with arms and ammunition with Tiger Memon (AA) at Sandheri Hillocks on 8.3.1993, while appellant No.3 (A-79) had also been charged under various heads of having possession of 13 handgrenades unauthorisedly between 1.4.1993 till 3.4.1993, with the intent to aid terrorist activities. Fourthly, under Sections 3 and 7 read with Section 25 (1-A)(1-B)(a) of the Arms Act, which he had dumped in the sea coast abutting Gandharwadi village which had been recovered at his instance between 1.4.1993and 3.4.1993.
Hence, this appeal.
494. Shri Sushil Karanjekar, learned counsel appearing for the appellants, has submitted that impugned judgment and order of conviction is not sustainable for the reason that recovery memo cannot be relied upon and the recovery had not been made in accordance with law. The learned Special Judge erred in recording the findings that the appellants had participated in the training for handling of arms at Sandheri on 8th January, 1993. In view of the fact that the appellants have not participated in acquiring any knowledge in handling of arms is meaningless and, therefore, their participation in the training cannot be relied upon. In view of specific findings recorded by the learned Designated Court that the appellants were not even known the contents of the contraband, their conviction under any provision of TADA is not sustainable. Therefore, the appeal deserves to be allowed.
495. On the contrary, Shri Mukul Gupta, learned senior counsel appearing for the respondent, has vehemently opposed the appeal, contending that the findings of facts recorded by the learned Special Judge do not warrant any interference, as the same are opposed on appreciation of evidence, and the same cannot be held to be perverse. Recovery had been made in accordance with law. The participation of the appellants in the training of arms at Sandheri Hillock on the relevant date is proved by cogent evidence. The appeal lacks merit and is liable to be dismissed.
496. We have heard learned counsel for the parties and perused the records.
497. Evidence against the appellants:
(a) Deposition of Mahadeo Yeshwant Jadav (PW-103)
(b) Deposition of Ashok Vasant Vichare (PW-104)
(c) Deposition of Harishchandra Keshav Pawar (PW-105)
(d) Deposition of Rajaram Ramchandra Kadam (PW-106)
(e) Deposition of Namdev Pundlik Mahajan, A.P.I. (PW-587)
(f) Deposition of Chandrakant Sambhaji Pawaskar (PW-609)
Deposition of Harishchandra Keshav Pawar (PW-105)
498. He is a resident of the village Sandheri. He deposed that on 8.3.1993 just after Holi, he heard gunshot noises made by several persons at about 9.00 a.m. when he was sitting at State Transport bus stand of his village Sandheri. He (PW-105) went alongwith his friends Shahnawaz Hajwani, Juber Hajwani, Inayat Hajwani and Ashfaq Ramzani towards the site known as Chinchecha Mal on the hillock towards the western side of Sandheri which is 1 K.M. from the said bus stand. He (PW-105) saw many cardboard targets fixed at different places around the hillock. Two-three guns were being used for firing. The guns were of arms length. He (PW-105) knew three persons out of 8-10 persons present there. They were Issaq Hajwane (A-79), Hamid Dafedar (now dead) and Sharif Parkar (A- 17). He (PW-105) was present at the said place for a short while as Hamid Dafedar rushed to them and threatened them that if they did not leave they would be killed. Hence, the witness (PW-105) and his friends ran away. He identified the said three named persons in the court including Issaq Hajwane (A-79).
Deposition of Rajaram Ramchandra Kadam (PW-106)
499. He (PW-106) is a resident of village Sandheri aged 71 years. He deposed that just after Holi on 8.3.1993 he (PW-106) was present at village Sandheri and after hearing the gunshots he went towards Chinchecha Mal, a place nearby Gardav Wadi of village Sandheri at about 9.30 to 10.00 a.m. After reaching there he (PW- 106) saw cardboard targets were fixed near the hillock which were of square shape and approximately 2 ^ feet in size. Some persons were sitting at the said Mal, they got up and asked him to leave the said place immediately otherwise he (PW-106) would be shot dead. The persons who had threatened him were not known to him. However, five persons amongst the persons who were sitting there, were residents of his village and they included Issaq Hajwane (A- 79), Shahnawaz Hajwani (A-106), Sikkandar Issaq Hajwane (A- 111), Hamid Dafedar, and Sharif Parkar. The said witness (PW- 106) identified all the five persons in court.
Deposition of Ashok Vasant Vichare (PW-104)
500. He (PW-104) was a resident of village Falsap, 3 K.ms. away from Sandheri and deposed that he (PW-104) knew the appellant (A-79) for a long time and on 1.4.1993, he was called to Goregaon Police Station by a Constable who told him that he must be the panch witness to the disclosure statement of Issaq Hajwane (A-79) who was in their custody. Thereafter, the appellant (A-79) made a disclosure statement, according to which, the police officials, the appellant (A-79) and both the panch witnesses reached near Sandheri Jetty when the appellant (A-79) asked the driver to stop the vehicle. They got off the vehicle and the appellant (A-79) took a lead and all other persons followed him and reached Sandheri Jetty on foot. The appellant (A-79) took a stone and threw the same at a particular spot in the water and told them that they had thrown handgrenades and empty cartridges within the vicinity of the place at which he had thrown the stone. Thereafter, divers/swimmers and boatmen were called to the said place by the police. The search by the divers/swimmers continued upto 3.00 p.m. but they were only able to find two handgrenades.
Search was conducted with the help of the naval squad which commenced search at 10.00 a.m. and continued upto 6.00 p.m. in the presence of panch witnesses and they found four handgrenades and seven empty cartridges from the creek water. The panchanama of the said recovery was drawn at the said place at about 6.00 p.m. The same was read over to the co-panchas and it was signed by them.
On the next day search was again conducted by the naval squad and they found, 72 empties. The same had been of yellow colour and were of size of an empty cartridge for a rifle. Some of them were bearing markings 71/71. Some of them were having marking 661/71 and some of them were of 991/72. In respect of the same, the panchanama was drawn which was read over to the panchas and signed by them.
Deposition of Namdev Pundlik Mahajan, A.P.I. (PW-587)
501. He deposed that while he was on duty on 28th/29th March, 1993 in Goregaon Police Station, he was informed by one of the police officials that in connection with the Bombay Blast that had occurred on 12.3.1993, Sharif Parkar had brought some bullets from Bombay and carried out firing practice with an AK-56 rifle at Sandheri Hillocks on 8.3.1993. He had immediately given the said information to S.P., Shri T.S. Bhal who instructed him to go to the said place. He alongwith other police officials reached Sandheri at 2.00 p.m. and found that the incident had occurred at Chinchecha Mal in the hillocks of Sandheri. Next day, on the instructions of Shri T.S. Bhal he reached Sandheri Village at about 6.00 a.m. Three police officials and 20 constables had already reached the said place. He inspected the said spot and drew up the panchanama. He recovered three empty cartridges of a rifle bearing some marking on it, six lead pieces, the broken branches of the tree, the targets prepared out of a cardboard, the stones bearing the marks of bullets and these articles were wrapped in a paper. The packet was tied with sutli and it was sealed. The panchnama was read over to the co-panchas and it was signed by him and other co-panchas.
501.1 He had further deposed that on 30.3.1993 while recording the statement of some persons, the residents of Sandheri he got the clue about the involvement of one Hamid and Shahjahan, the residents of Sandheri in the incident of training at Sandheri hillocks on 8.3.1993.
501.2 He deposed that in spite of his best efforts he could not trace out the accused on 31.3.1993. However, on 1.4.1994 he got the information that Hamid, Shahjahan, Issaq Hajwane and Sikkandar Issaq Hajwane had taken shelter in the Sandheri forest. He reached there alongwith other police officials and found them and brought them to Goregaon Police Station for inquiry. After being satisfied that they were accused involved in C.R. No.6/93, they were arrested at 10.15 a.m.
501.3 On the same day, at about 10.30 a.m. Issaq Hajwane (A-79) expressed his desire to make voluntary statement. The witness immediately called two panch witnesses for drawing the panchnama. He deposed that one panch witness was Ashok Vichare (PW-104), and he did not remember the name of the other panch witness.
Deposition of Chandrakant Sambhaji Pawaskar (PW-609)
502. He is a police officer and deposed that he had taken over the investigation from Namdev Mahajan (PW-587) on 2.4.1993, and subsequently recorded the statement of Rajaram Ramchandra Kadam (PW-106) and Tukaram Babu Nagaonkar (PW-176) and others.
502.1 He further deposed that on 17.4.1993, he sent the articles recovered from Chinchecha Mal to a Chemical Analyst with a forwarding letter for carrying out the examination and sending a report.
502.2 He further deposed that on 17.4.1993 he had not seen the empty cartridges but had described markings on the said empties in Exh.2112 on the basis of the description of the empty cartridges in Panchnama i.e. Exh.539. The said empty cartridges sent to Chemical Analyst for examination on 17.4.1993 were bearing marking 661/71 and the panchnama shown to him does not reveal any empty cartridge bearing marking 661/71 being seized under the same panchnama.
Deposition of Mahadeo Yeshwant Jadav (PW-103)
503. He is an agriculturist. He was called on 29th March, 1993 to act as a panch witness by the police from Goregaon Police Station. He deposed that he alongwith Shri Patil reached Chinchecha Mal at about 9.00 a.m. Some 4-5 police officials were already present at the place. The police asked the panch witnesses to collect broken branches, pieces of cardboard, three empty cartridges, six lead pieces and pieces of stones lying on the ground and the police took charge of the said articles. The police effected the writings about the said things and signatures of the panch witnesses were obtained on the writings. The said writings were read over to them by the police before their signatures.
504. After appreciating the entire evidence, the learned Designated Court recorded the finding that the appellant (A-79) could not furnish any explanation that he had no knowledge of said contraband material for some other reason, and his possession of such articles for such a long period considered along with his participation in the training programme leads to no other conclusion than himself being party to conspiracy to commit terrorist act.
504.1 However, having regard to fact that there exists no other evidence of commission of any act by the appellant (A-79) and there is no evidence of him having been to Bombay or having participated in conspiratorial meetings, it would be difficult to accept that knowledge of commission of serial bombs blasts in Bombay can be attributed to him. Since there is a paucity of evidence to show that the appellant (A-79) had any knowledge regarding the places at which the explosions were committed in Bombay, he cannot be held liable for the offence of larger conspiracy for which the charge at head firstly is framed against him. However, considering the acts and offences committed by him and particularly the retaining of such a contraband material and disposing the same definitely establishes himself being a party to conspiracy to commit terrorist act punishable under Section 3(3) TADA.
505. The said material which was sent for chemical analysis particularly live handgrenades were defused, as deposed by Pramod Kisanrao Dhaware (PW-598). He also issued a certificate that 13 handgrenades had been defused which were given to Shri V.M. Ghadshi .
506. From the evidence referred to hereinabove, it is evident that Harishchandra Keshav Pawar (PW-105) named three persons from his village participating in the arms training at Sandheri hillocks and one of them had been Issaq Mohmed Hajwani (A-79). Rajaram Ramchandra Kadam (PW-106) named all the three appellants to be members consisting of 8-10 persons participating in the training of arms and ammunition in Sandheri hillocks on 8.3.1993 and he identified all the three appellants alongwith others in the court. The other co-accused, particularly, Abdul Gani Ismail Turk (A- 11), Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14) and Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), in their confessional statements had also named all the three appellants as participants in the arms training on 8.3.1993 at Sandheri hillocks. The evidence of the aforesaid persons is trustworthy as we do not see any reason to discard the same at least to the extent of participation of these three appellants in arms training on 8.3.1993 at Sandheri hillocks.
In view of the above, the appeal is dismissed.
Criminal Appeal No. 396 of 2011
507. The respondents (A-106 & A-111) had been acquitted of the charge of conspiracy. Hence, the State has filed appeal against them.
508. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that the said respondents had been very closely associated with terrorist activities and had participated in the training at Sandheri with Tiger Memon (AA). Therefore, they ought to have been convicted for the charge of conspiracy also.
509. On the contrary, Shri Sushil Karanjekar, learned counsel appearing for the respondents (A-106 and A-111) has vehemently opposed the appeal, contending that they were convicted and have served substantial part thereof. The respondents (A-106 and A- 111) did not participate in the training at Sandheri, and at the most, they could be held to be silent spectators of the training and therefore, could not be involved in the offence. Thus, the appeal is liable to be dismissed.
510. None of the said respondents (A-106 and A-111) has made any confession. The evidence against them regarding the training at Sandheri is only by Rajaram Kadam (PW-106), who had deposed in the court that on 8.3.1993, some people were being trained in handling of arms at Chinchecha Mal in the morning at about 10 a.m. As there was continuous firing he went to the said hillock in order to find out what was happening. There he saw two persons armed with guns standing at the said place and 5-6 persons were sitting at Chinchecha Mal. He also saw a cardboard target fixed nearby the hillock. One person with the beard from the persons who were sitting there got up and asked him to leave the hillock otherwise he would be shot by the gun. The witness (PW- 106) was frightened and immediately returned to his village. He did not know the person who had threatened him or the other persons who were having the arms. About 4 to 5 persons from his village were amongst the persons who were sitting at the said place at that time including these two respondents (A-106 and A-111). He identified both the respondents (A-106 and A-111) in court as the persons sitting at Chinchecha Mal.
511. The learned Designated Court after appreciating the evidence came to the conclusion that there was sufficient evidence to convict the respondents (A-106 and A-111) under Section 3(3) TADA, as they also facilitated Tiger Memon (AA) in other aspects, but merely sitting at the hillock, did not mean that they participated in the training and therefore, it could not be the basis of assuming that they were party to the training programme.
512. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
513. In view of the above, we do not see any cogent reason to take the view contrary to the view taken by the learned Special Judge, considering the parameters laid down by this court for entertaining the appeal against the order of acquittal. The appeal lacks merit, and is accordingly, dismissed.
Criminal Appeal No. 414 of 2011
514. The respondent (A-79) had been acquitted of the charge of conspiracy. Hence, the State has filed appeal against him.
515. Shri Mukul Gupta, learned senior counsel appearing for the appellant has submitted that there was enough evidence and particularly, the confessional statement made by Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), and the depositions of Mahadeo Jaswant Jadav (PW-103), Ashok Vichare (PW-104), Harish Chandra Pawar (PW-105), Rajaram Kadam (PW-106), and Namdev Pundlik Mahajan (PW-587), to convict the respondent for the first charge of conspiracy. Thus, the court below committed an error in acquitting the respondent from the said charge, and thus on that count, the respondent should be convicted.
516. Ms. Farhana Shah, learned counsel appearing for the respondent has submitted that considering the parameters for interference in an appeal against the order of acquittal, no interference is required. The respondent has already suffered sufficiently, and he has been convicted on various other charges. Thus, the appeal is liable to be dismissed.
517. The Designated Court after appreciating the entire evidence came to the following conclusion:
However, case regarding A-79 clearly appears to be different. There exists an evidence denoting that in consequent to information given by A-79, 13 handgrenades and empties were recovered/seized by police during the period from 1.4.1993 to 3.4.1993 from the sea coast at Gandharwadi. The said facet considered on the backdrop that training programme had taken place on 8th of March, 1993 or thereabout leads to the conclusion of A-79 having the knowledge of such a contraband article in the month of April 1993 and the same being recovered from the place shown by him. Now considering in proper perspective the information furnished by A-79 his knowledge of such material lying at the said place and the reason because of which he was having the same i.e. his authorship in dumping the material at the said place. All the said evidence clearly reveals that all the said material must have been with A-79 after the training programme was complete and/or at least the said evidence and the ultimate act committed by him reveals that himself having dominum and control over the said material and hence consequently being in possession of same. Thus having regard to the said facets leads to no other conclusion that A-79 being also guilty for offence under Section 6 of TADA, offences under Sections 3 and 7 read with Section 25(1-A)(1-B)(a) of Arms Act and Section 201 IPC.
In addition to same and having regard to fact that no explanation had come forward from A-79 that he was having knowledge of said contraband material for some other reason and his possession of such articles for such a long period considered along with his participation in the training programme leads to no other conclusion than himself being party to conspiracy to commit terrorist act. However, having regard to fact that there exists no other evidence of commission of any act by A-79, himself being not a resident of Bombay, no evidence of himself having been to Bombay or having participated in conspiratorial meeting, it will be difficult to accept that knowledge of commission of serial bomb blasts in Bombay can be attributed to him. Since there is a paucity of evidence to show that A-79 was having any knowledge regarding the places at which the explosions were committed in Bombay he cannot be held liable for the offence of larger conspiracy for which charge at head firstly is framed against him. However, considering the acts and offences committed by him and particularly the retaining of such a contraband material and disposing the same definitely establishes himself being party to conspiracy to commit terrorist act punishable under Section 3(3) of TADA.
The court further held:
The same discloses that A-79 was found guilty for commission of offence of conspiracy to commit terrorist act, punishable under Section 3(3) of TADA and he was also found guilty on fourother counts for commission of offences under Sections 3(3) and 6 of TADA, Sections 3 & 7 read with Section 25(1-A)(1-B)(a) of Arms Act and Section 201 IPC.
Without unnecessarily reiterating every aspect connected with decision arrived accordingly, in short it can be said that each of the said accused was found guilty accordingly mainly due to acts committed by him in connection with Sandheri training Episode which has taken place on 8th of March, 1993 at Borghat and Sandheri in which prime absconding accused Tiger Memon had organised a training camp for imparting a training of handling arms, ammunition and handgrenades to the persons taken from Bombay and so also local persons from the area of Sandheri.
The evidence surfaced and/or reasoning given thereon earlier also reveals that all the aforesaid accused persons were local residents and were not from Bombay. The same also does not disclose that they had any prior connection with Tiger Memon or any of the prime accused involved in this case, prior to their participation in training programme or even thereafter. Similarly, the evidence does not disclose any of these accused having been trained in handling of handgrenades. Though it is true that evidence have surfaced regarding Tiger Memon having imparted such a training of throwing of handgrenades at a place by name Manjeri Ghat, Waghjai etc. still the same does not disclose that the same was imparted to any local person and on the contrary evidence discloses that the same was given to the persons, who were taken by Tiger Memon from Bombay to said place.
It is significant to note that though A-79 has been held guilty accordingly still no evidence has surfaced on the record of A-79 having used the handgrenades with him for the purposes of commission of any terrorist acts of committing explosion or any other acts to further the objective of conspiracy to which he was a party. It is furthersignificant to note that no evidence has surfaced on the record to reveal that A-79 held guilty for offence of conspiracy or even A-106 & A-111 at any point of time had been to Bombay for commission of any act furthering object of criminal conspiracy, to which A-79 was found to be a party. Needless to add that acts committed by each of the accused were confined to Sandheri and the same had never transcended beyond the said area and none of them and particularly A-79 is not found to have committed any act in the area of Bombay i.e. the place at which serial blasts were committed, resulting into deaths of and/or injuries to many.
Having regard to all the aforesaid facets and particularly taking into consideration the extent of acts committed by A-79 he was found guilty for offence of conspiracy to the extent i.e. only for offence of conspiracy to commit terrorist acts made punishable under Section 3(3) of TADA or in other words A-79 was not found guilty for a party to a conspiracy for the acts for which the charge at head firstly was framed against him. Since elaborate reasoning for coming to such a conclusion, being already recorded in the earlier part of the judgment and so also the aspect of framing such elaborate charge, etc. being also recorded explained during the said earlier part of reasoning and so also while making a common discussion the earlier part of the sentence part of judgment and so also while discussing about awarding sentence to accused, who had acquired the training at Pakistan i.e. A-77, 92, 94, 95, 108, 115, it will be wholly unnecessary for once again repeat the said reasoning.
As stated earlier prosecution has demanded for giving maximum penalty prescribed under the law for all the aforesaid accused who according to prosecution i.e. A-106 to A-111 falling in second group while A-79 falling in the first group made by learned Chief Public Prosecutor i.e. the group of accused found guilty for commission of offences under TADA and so also under otherenactments. During the discussion made earlier for reasons already given it has been already ruled that such a blanket attitude cannot be taken while determining the sentence for such accused placed in said group as different penalty ranging from 5 years to life imprisonment with fine has been prescribed under TADA for commission of various acts/offences as prescribed under Section 3(3) of TADA including for offence of conspiracy to commit terrorist acts made punishable under the same.
518. The parameters laid down by this court in entertaining the appeal against the order of acquittal have to be applied.
519. In view of the fact that after appreciating the entire evidence the learned Special Judge reached the conclusion that the case of respondent (A-79) was entirely different from the other co-accused, particularly those who had not participated in the training of arms. It was further held that respondent (A-79) had knowledge of the said contraband material being arms and ammunition and had been brought for terrorist activities and he was found in possession of the handgrenades and empties; it was further found that A-79 had thrown the same in the creek water to absolve himself of the offences. We are of the view that the Special Judge was not justified in acquitting him from the first charge of larger conspiracy merely on the ground that he did not know about the places where the bombs had to be thrown and he was not the resident of Bombay and did not participate in the conspiratorial meetings. The finding of fact recorded by the Special Judge is also contradictory as the court held that he participated in the arms training at Sandheri. However, he observed that the evidence does not disclose that any of those accused had been trained in handling of handgrenades.
520. In view of the fact that there is sufficient material on record that the respondent participated in the training of handling the handgrenades, there was no occasion for the learned Special Judge to take such a view.
520.1 In view of the above, the appeal stands allowed. The respondent is awarded life imprisonment. The respondent is directed to surrender before the learned Designated Court within a period of four weeks to serve out the remaining sentence, failing which the Designated Court will secure his custody and send him to jail to serve out the sentence.
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