Zakir Hussain Noor Mohd. Shaikh (A-32) Abdul Khan @ Yakub Khan Akhtar Khan (A-36) & Firoz @ Akram Amani M

Appeal: Criminal Appeal Nos. 609-610 of 2008

Petitioner: Zakir Hussain Noor Mohd. Shaikh (A-32) Abdul Khan @ Yakub Khan Akhtar Khan (A-36) & Firoz @ Akram Amani Malik (A-39)

Respondent: State of Maharashtra, Through STF, CBI, Bombay

Apeal: Criminal Appeal Nos. 609-610 of 2008

Judges: P. Sathasivam & Dr. B.S. Chauhan, JJ.

Date of Judgment: Mar 21, 2013

Criminal Laws
Penal Code, 1860
Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 TADA Act, 1987, Sections 3(3), 5, 6 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3- Conspiracy Bombay blast case Accused Z, A and F – Attended various meetings for selecting target and at a building, where explosive materials were filled in vehicles and suit cases Received training in Pakistan, participated in filling vehicles with RDX, throwing hand grenades. Held that physical manifestation of agreement and agreement to commit illegal acts are established.

TADA Act, 1987
Section 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3- Confession Retraction of- Effect Bombay blast case Confessional statements of accused Z A and F Statements recorded after compliance of all safeguards Later accused Z and F retracted, whereas accused A denied having made the statement voluntarily Retractions not made at first available opportunity even though accused produced before court on number of times between 1993 and 1994 Statement recorded in April and May 1993 Retraction only in May 1994 Confessional statement made by other co-accused viz B (A13), M (A 23), P (A16), Q (A 29), N (A 49), S (A52), U (A57), D (A 64), R (A94), I (A98), MP (A100) who all referred to their inculpatory acts and those of accused Z, A and F Corroboration by statement of approver (PW2) and other independent witnesses and recoveries from blast sites Further corroboration by FSL report – Vehicle used in traveling purchased by one absconding accused Further evidence of these accused traveling abroad. Held that the evidence on record sufficiently established that each of the accused Z A & F were actively involved in the conspiracy by causing blast in Bombay [That means that retraction of confession is of no avail]. (Para 261-274)

Sections 3, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 – Bombay blast case Conspiracy Involvement in Accused going to Dubai, allegedly on pretext of job, being a floor mechanic Plea that he did not know if he was to attend training camp in Pakistan and forced to go as his passport was taken at Dubai and thus, did not participate willingly – No such defence before trial court and not opting out on his return to India. Further, own confession that he took oath of Holy Quran to take revenge of Bombay riots. Held that accused was fully conscious of his participation. Plea of coercion is an after thought.

Sections 3, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 – Bombay blast case Conspiracy Evidence Reliability RDX being filled in vehicles at a building only a few hundred meters from Mahim Police Station Densely populated area None saw the filling of RDX including security guard Fact duly established by statements of various witnesses, confession and testimony of approver. Held that all the acts were result of conspiracy which was carried out in covert manner. (Para 279)

Sections 3, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 – Bombay blast case Conspiracy Evidence Discrepancies Inconsistency in confession of two accused One stated to have gone to Mahim in Blue maruti car Other stated to have gone in white Maruti. Held that these are minor inconsistencies, which do not go to the root of the matter. (Para 280)

Sections 3, 5, 6, 15 TADA Rules, 1987, Rule 15(2), 15(3) Penal Code, 1860, Sections 120A, 120B, 302, 307, 326, 324, 427, 435, 436 Explosives Act, 1884, Sections 9B Explosive Substances Act, 1908, Sections 3, 4, 5, 6 Evidence Act, 1872, Section 3 – Bombay blast case Conspiracy Evidence Interested witnesses Brother-in-law and sister-in-law of PW sustaining injuries in blast at Mahim Fact established by other material on record Statement also corroborated by another PW. Held that statement of PW is convincing and credibility is not shaken. (Para 281)

The appellants have attended several conspiratorial meetings including the meeting at the residence of Babloo (AA) where targets were selected and at the Al-Hussaini building where RDX and other explosive materials were filled up in vehicles and suitcases in pursuance of the said terrorist act. The participation of the appellants (A-32, A-36 and A-39) in these meetings is a physical manifestation of the agreement. The agreement to commit an illegal act can also be inferred from the acts committed by the appellants, viz., receiving training in Pakistan, participating in filling RDX in vehicles in the intervening night between 11/12.03.1993 and throwing of hand grenades at the Fishermens Colony at Mahim on 12.03.1993 causing death of 3 persons and injuring 6 others. The object behind the conspiracy is the ultimate aim of the conspiracy and many means may be adopted to achieve this ultimate object. The means may even constitute different offences by themselves, but as long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy. (Para 257)

Had there been any compulsion, the appellant could have opted out of the conspiracy upon his return from Dubai, which he did not do. Further, on a holistic reading of the entire body of evidence, it is clear that from the very beginning, the appellants have willingly participated in the successful execution of the object of conspiracy. The argument of coercion is a belated argument and necessarily a product of afterthought. The fact that appellant (A-32) was fully conscious of his acts is further established from his conduct subsequent to the incident, wherein he traveled to Karnataka immediately after the blasts in order to evade arrest. (Para 276)

The fact that appellant (A-32) was actively involved in the conspiratorial acts is clear from his own confession wherein he has stated that after their return to Dubai from Pakistan, he along with other co-conspirators took oath on holy Quran that they will take revenge for the Bombay riots and will not disclose the training in Pakistan to anyone. (Para 277)

All the aforesaid acts clearly establish the fact that the appellants knowingly and willingly participated in the conspiratorial acts and were fully aware and conscious of the fact that they were participating in a conspiracy with a grave design. (Para 278)

251. Mr. Priyadarshi Manish, learned counsel appeared for the appellants (A-32, A-36 and A-39) and Mr. Gopal Subramanium, learned senior counsel, duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel for the respondent.
252. The present appeals are directed against the final judgment and order of conviction and sentence dated 04.12.2006 and 24.07.2007 respectively whereby the appellants (A-32, A-36 and A-39) have been convicted and sentenced to death by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in B.B.C. No.1/1993.
Charges:
253. The following common charge of conspiracy was framed against all the co-conspirators including the appellants herein. The relevant portion of the said charge is reproduced hereunder:
During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate Sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosives substances like RDX or inflammable substances or fire-arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of Indian Penal Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.
253.1 In addition to the abovesaid principal charge of conspiracy, the appellants were also charged on the following counts:
At head Secondly; Each of the appellants (A-32, A-36 & A-39) committed an offence punishable under Section 3(3) of TADA by doing the following acts:
(i) They received training in handling of arms, ammunition and explosives in Pakistan along with co-conspirators.
(ii) They attended meetings at the residences of Nazir Ahmed Shaikh @ Babloo (AA) and Mobina @ Baya Musa Bhiwandiwala (A-96) where plans for committing terrorist acts were discussed and chalked out.
(iii) They participated in preparation of vehicle bombs on the night of 11.03.1993 at Al-Hussaini building.
At head Thirdly; Each of the appellants along with other co-accused went to Mahim Slope on 12.03.1993 in a Maruti Van bearing registration no. MP-13-D-385, and threw hand grenades on the hutments, which exploded causing death of three persons and injuries to six persons and damage to property worth Rs.50,000/- and thereby committed an offence punishable under Section 3(2)(i)(ii) of TADA read with Section 149 IPC.
At head Fourthly; Each of the appellants along with other co-accused persons formed unlawful assembly as mentioned above, while throwing the hand grenades at the said hutments at Mahim Causeway, which resulted into death, injuries and damage to properties and thereby committed an offence punishable under Section 148 IPC.
At head Fifthly; Each of the appellants, by causing the death of three persons as mentioned above by throwing hand grenades, committed an offence punishable under Section 302 read with Section 149 IPC.
At head Sixthly; Each of the appellants, by causing the aforesaid explosion by throwing hand grenades which resulted into injuries to various persons, committed an offence punishable under Section 307 read with Section 149 IPC.
At head Seventhly; Each of the appellants, by causing the aforesaid explosion by throwing hand grenades, which resulted into injuries, committed an offence punishable under Section 324 read with Section 149 IPC.
At head Eighthly; Each of the appellants, by causing the aforesaid explosion by throwing hand grenades, which resulted into damage to the properties worth Rs.50,000/- committed an offence punishable under Section 436 read with Section 149 IPC.
At head Ninthly; A-39, by causing the aforesaid explosion by throwing hand grenades, along with other co-accused persons at Mahim Causeway, which resulted into death, injuries and destruction of properties, also committed an offence punishable under Sections 3, 4 read with Section 6 of the Explosive Substances Act, 1908 read with Section 149 IPC.
254. The charges mentioned above were proved against all the appellants (A-32, A-36 and A-39). The appellants have been convicted and sentenced for the above said charges as under:
Conviction and Sentence
(i) The appellants have been sentenced to death under Section 3(3) of TADA and Section 120-B of IPC read with the offences mentioned in the said charge. In addition, the appellants were also ordered to pay a fine of Rs. 25,000/- each. (charge firstly)
(ii) A-36 and A-39 have also been sentenced to suffer RI for 10 years while A-32 has been sentenced to RI for 14 years for the offence punishable under Section 3(3) of TADA. The appellants were also ordered to pay a fine of Rs.25,000/- each. (charge secondly)
(iii) The appellants have been sentenced to death for the offence punishable under Section 3(2)(i)(ii) of TADA read with Section 149 of IPC and were also ordered to pay a fine of Rs.25,000/- each. (charge thirdly)
(iv) The appellants were also sentenced to RI for three years under Section 148 of IPC. (charge fourthly).
(v) The appellants have been further sentenced to RI for life under Section 302 read with Section 149 of IPC accompanied with a fine of Rs. 25,000/- each, in default, to further undergo RI for 6 months. (charge fifthly).
(vi) The appellants were sentenced to RI for 14 years under Section 307 read with Section 149 of IPC accompanied with a fine of Rs.10,000/- each, in default, to further undergo RI for 3 months. (charge sixthly).
(vii) The appellants were sentenced to RI for 2 years under Section 324 read with Section 149 of IPC. (charge seventhly).
(viii) The appellants were sentenced to RI for 10 years accompanied with a fine of Rs.5,000/- each, in default, to further undergo RI for 1 month under Section 436 read with Section 149 of IPC. (charge eighthly).
(ix) A-39 has been sentenced to RI for 10 years accompanied with a fine of Rs.5,000/- each, in default, to further undergo RI for 1 month, under Sections 3, 4 read with Section 6 of Explosive Substances Act, 1908 read with Section 149 IPC. (charge ninthly).
Evidence:
255. The evidence against the appellants is in the nature of their own confessions, confessions made by other co-accused, the testimonies of prosecution witnesses, including eye witnesses and documentary evidence on record. A brief account of the evidence brought on record in respect of each of the appellant is as under.
256. Mr. Manish, learned counsel for the appellants, after taking us through the relevant materials submitted that the appellants joined the company of Tiger Memon and had gone to Dubai and Pakistan due to circumstance and by force. He also submitted that they had no intention to go to Dubai and to attend weapons training at Islamabad. Their main aim was to secure some job at Dubai. He also pointed out that though they participated in the smuggling activities of the Tiger Memon group, they had no intention to involve in the terrorist act as claimed by the prosecution. According to the counsel, though the prosecution has relied on their own confessional statements inasmuch as all of them have retracted from their statements, there is no need to give importance to those confessions. He also prayed that considering their poverty and also that at the relevant time they were in search of some job for their livelihood, the death sentence imposed by the Special Court is not warranted. On the other hand, learned senior counsel for the CBI, after taking us through their confessional statements, confessional statements of other co-accused, the evidence of PW-2 (Approver), eye-witnesses and recoveries as well as the loss of lives and damage to properties submitted that the Special Court was justified in awarding capital punishment.
Conspiracy:
257. The appellants have attended several conspiratorial meetings including the meeting at the residence of Babloo (AA) where targets were selected and at the Al-Hussaini building where RDX and other explosive materials were filled up in vehicles and suitcases in pursuance of the said terrorist act. The participation of the appellants (A-32, A-36 and A-39) in these meetings is a physical manifestation of the agreement. The agreement to commit an illegal act can also be inferred from the acts committed by the appellants, viz., receiving training in Pakistan, participating in filling RDX in vehicles in the intervening night between 11/12.03.1993 and throwing of hand grenades at the Fishermens Colony at Mahim on 12.03.1993 causing death of 3 persons and injuring 6 others. The object behind the conspiracy is the ultimate aim of the conspiracy and many means may be adopted to achieve this ultimate object. The means may even constitute different offences by themselves, but as long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer to the same once again.
Confessional Statements:
Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)
258. Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (11:25 hrs.) and 19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confession, he made the following assertions:
(i) He knew Javed Chikna (AA) very well.
(ii) He travelled to Dubai on 11.02.1993 along with other co-accused and they were received by Ayub Memon (AA), brother of Tiger Memon, at Dubai Airport.
(iii) He met Tiger Memon at a flat in Dubai and did not protest when he was told by Javed Chikna that he had come for training in handling arms and making bombs.
(iv) He left for Islamabad from Dubai by a Pakistan International Airlines flight.
(v) They were taken out of the Islamabad Airport without any checking.
(vi) He was renamed as Shakir and other co-accused were also given fake names when they were in Pakistan.
(vii) Tiger Memon also joined them in training at Pakistan and stayed with them for two days.
(viii) He was trained in firing AK-56 rifle, preparation of bombs using RDX (black soap), using detonator and to throw hand grenades.
(ix) After return from Pakistan, he along with A-36, A-39 and other conspirators met in a flat where Tiger Memon brought a copy of holy Quran and everyone including him, took oath to keep the training in Pakistan a secret and that after reaching Bombay they would take revenge. Tiger Memon also delivered a lecture on communal riots in Bombay.
(x) On 07.03.1993, he attended the meeting in the house of Babloo (AA) in Bombay where Tiger Memon ordered them to cause riots.
(xi) On 10.03.1993, after the meeting in the house of Mobina @ Bayamoosa Bhiwandiwala (A-96), he along with A-39 and other co-accused went to survey Bharat Petroleum Refinery as a prospective target for blasts.
(xii) On the same day, Tiger Memon told them to throw hand grenades at Fishermens colony at Mahim.
(xiii) Each of the appellants (A-32, A-36 & A-39) filled RDX in vehicles at the Al-Hussaini building on the night of 11.03.1993.
(xiv) On 12.03.1993, at 2:30 p.m., A-32, A-36 and A-39 along with Bashir (A-13), Mahmood, Salim Dandekar and Moin (A-43) left Al-Hussaini building; thereafter, they all threw hand grenades at Fishermens Colony at Mahim. He threw two hand grenades and saw many people getting injured.
Reference to A-36 and A-39
(i) A-36 and A-39 joined the training camp in Pakistan.
(ii) A-36 and A-39 also took oath on holy Quran to keep the fact about receiving training in Pakistan a secret and to take revenge after their return to Bombay.
(iii) A-36 and A-39 participated in filling RDX at Al-Hussaini Building and in throwing hand grenades at Fishermens Colony at Mahim.
Confessional Statement of Abdul Khan Akhtar @ Yakub Khan Akhtar Khan (A-36)
258.1 Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishno (PW-193), the then DCP, Zone III, Bombay. In his confession, he made the following assertions:-
(i) He knew Shahnawaz Qureshi (A-29) very well and also knew that he was a well-known criminal.
(ii) He went to Dubai in February, 1993 along with Shehnawaz and Irfan Chougule (AA) and met Gullu @ Gul Mohd. (A-77) at Dubai Airport. They were received by Ayub Memon (AA), brother of Tiger Memon, at the Airport.
(iii) He met Tiger Memon at Dubai, and thereafter, left for Pakistan to receive training in use of arms and explosives.
(iv) He along with A-32 were given training in handling AK-56 rifles, pistols, detonators, safety fuse, hand grenades, rocket launchers, use of RDX in making bombs and petrol bombs.
(v) After return from Pakistan, he along with other co-accused took oath on holy Quran to keep the training in Pakistan a secret and to wage Jehad.
(vi) In the intervening night between 11/12.03.1993, he and other co-accused, filled RDX in vehicles at the Al-Hussaini building.
(vii) On 12.03.1993, he along with A-32, A-39, Bashir (A-13), Moin (A-43), Mehmud and Salim drove to Fishermens colony at Mahim and threw hand grenades.
Reference to A-32 and A-39
(i) A-32 and A-39 took training in Pakistan
(ii) A-32 and A-39 took oath on holy Quran to wage Jehad in Bombay.
(iii) A-32 and A-39 threw hand grenades at Fishermens colony at Mahim.
Confessional Statement of Feroz @ Akram Amani Malik (A-39)
258.2 Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. In his confessional statement, he made the following assertions:-
(i) He deposed that he was the brother-in-law of co-accused Fazal Abdul Rehman (A-76). He left for Dubai on 08.02.1993 along with Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98).
(ii) He and other co-accused were received by Ayub Memon (AA), brother of Tiger Memon, at Dubai Airport. He also met Nasim Ashraf Shaikh Ali Barmare (A-49) at Dubai.
(iii) He left for Pakistan from Dubai in a PIA flight along with other co-accused where a person took them out of the Islamabad Airport without any immigration check.
(iv) He was renamed as Akram in Pakistan and he received weapons training along with others where they were trained to assemble guns and throw bombs.
(v) Tiger Memon attended training in Pakistan and told the co-accused that they have to blast bombs at Bombay.
(vi) When they returned to Dubai, he and other co-accused took oath on holy Quran to keep the training in Pakistan a secret.
(vii) On 10.03.1993, he along with PW-2 went in a car to Shiv Sena Bhawan and a petrol pump nearby to survey the prospective targets. He also went to Chembur Refinery along with PW-2 to survey the target.
(viii) On 12.03.1993, he along with A-32, A-36, Bashir (A-13) Moin, (A-43), Salim and Mahmud threw hand grenades at the Fishermens Colony at Mahim.
Reference to A-32 and A-36
(i) A-32 and A-36 joined A-39 for training in Pakistan.
(ii) A-39 went along with A-32 to survey the Chembur Refinery.
(iii) A-32 and A-36 also threw hand grenades at the Fishermens Colony at Mahim.
259. On perusal of the confessional statements made by the appellants, it is established that the appellants:
(a) attended training camp in Pakistan;
(b) took oath on holy Quran to do Jehad;
(c) attended meetings at the residence of Babloo (AA) and Mobina; and
(d) threw hand grenades at Fishermens Colony at Mahim.
260. It is also clear that the confessions made by the appellants are truthful and voluntary and were made without any coercion. All safeguards enumerated under Section 15 of TADA and the rules framed thereunder have been duly complied with while recording the confessions of the appellants.
Retraction Statements
261. It is contended by learned counsel for the appellants that the above mentioned confessions should not be relied upon since they were subsequently retracted by A-32 and A-39 and the denial of the voluntariness of the confessional statement made by A-36 has been recorded by the Designated Court in the statement under Section 313 of the Code. In the instant case, it was brought to our notice that retractions were not made at the first available opportunity by the accused persons. After arrest, the accused persons were produced before the Court number of times in 1993 and 1994. While the confessions were recorded in April and May 1993, retractions have been made only in May, 1994, i.e. after a gap of 1 year. Since we have elaborately discussed the contention raised by learned counsel with regard to the same in the main appeal, there is no need to refer the same once again.
Confessional Statements of co-accused:
Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13)
262. Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The prosecution submits that the confession of A-13 is pertinent since he was one of the co-accused who accompanied the appellants to the Fishermens colony at Mahim on 12.03.1993. His confession corroborates the confessions of the appellants in material aspects.
Reference to A-32
(i) A-32 attended a conspiratorial meeting on 10.03.1993 at the residence of Mobina.
(ii) On 11.03.1993, at 11.00 p.m., A-32 took him to the house of Tiger Memon at the Al-Hussaini building.
(iii) He along with A-32, A-39, A-36, Saleem, Mehmood and Moin went to throw hand grenades at Mahim Slope Cause-way on 12.03.1993.
Reference to A-36
(i) A-36 actively participated in preparation of vehicle bombs by using RDX at Al-Hussaini Building compound in the intervening night between 11/12.03.1993.
(ii) In the morning of 12.03.1993, A-36 was present at Al-Hussaini building to execute his job of throwing hand grenades as assigned by Tiger Memon.
(iii) He along with A-36, A-32, A-39, Saleem Dandekar and Mehmood went to Mahim Slope Cause-way and threw hand grenades at hutments.
Reference to A-39
262.1 He along with A-39, A-32, A-36, Saleem, Mehmood and Moin threw hand grenades at Mahim Slope way.
Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16)
262.2 Confessional statement of A-16 under Section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by Sanjay Pandey (PW-492), the then DCP, Zone-VIII, Bombay. In his confessional statement, he made the following assertions with regard to the appellants:-
Reference to A-32
A-32 attended training in handling arms and explosives in Pakistan.
Reference to A-39
262.3 He attended the meeting held by Tiger Memon on 07.03.1993 in which Tiger informed that he was going to cause riots in Bombay.
Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23)
262.4 Confessional statement of A-23 under Section 15 of TADA has been recorded on 20.05.1993 (10:00 hrs.) and 22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. He made the following assertions:-
(i) In the intervening night between 11/12.03.1993, A-32 filled the vehicles with RDX along with other co-accused at Al-Hussaini building.
(ii) On 12.03.1993, A-36 filled the vehicles with RDX along with other co-accused at Al-Hussaini building.
Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29)
262. 5 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. In his confessional statement, he made the following assertions with regard to the appellants:-
Reference to A-32
(i) A-32 was present in the training camp in Pakistan when he and others reached there.
(ii) A-32 was present at Al-Hussaini Building in the flat of Tiger Memon along with Tiger, Shafi, Anwar, Bashir Muchhad, Nasim, Parvez and Sardar Khan.
(iii) A-32 received Rs.5,000/- from Tiger Memon
Reference to A-36
(i) A-36 was present in the training camp in Pakistan when he and others reached there.
(ii) A-36 received training in handling of arms and explosives in Pakistan.
(iii) A-36 returned from Dubai along with him, Feroz, Zakir and Mohd. Rafiq.
(iv) A-36 was present at Al-Hussaini Building compound on the night of 11.03.1993 along with Tiger, Shafi, Anwar, Bashir Muchhad, Nasim, Parvez, Zakir and Sardar Khan where vehicle bombs were prepared.
(v) On 12.03.1993, at about 12:30 noon, A-36 was present in the flat of Tiger Memon at Al-Hussaini Building along with Javed Chikna, Bashir Muchhad, Bashir Mahimwala, Shafi, Usman, Salim Dandekar, Anwar and Zakir.
(vi) A-36 received Rs.5,000/- from Tiger Memon.
Reference to A-39
(i) A-39 was present in the training camp in Pakistan when he and others reached there.
(ii) A-39 returned from Dubai along with him and A-29 Zakir, Abdul, Akhtar and Mohd. Rafiq.
Confessional Statement of Nasim Ashraf Sherali Barmare (A-49)
262.6 Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (09:30 hrs.) and 18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. He made the following assertions:-
Reference to A-32
(i) A-32 participated in the weapons training in Pakistan.
(ii) A-32 was present at the Al-Hussaini building in the morning of 12.03.1993.
Reference to A-36
(i) A-36 participated in the training in Pakistan and after training returned to India via Dubai.
(ii) A-36 was involved in filling of RDX in the vehicles on the night of 11.03.1993.
Reference to A-39
A-39 also received weapons training in Pakistan.
Confessional Statement of Salim Rahim Shaikh (A-52)
262. 7 Confessional statement of A-52 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. He made the following assertions:-
Reference to A-32
(i) On 11.02.1993, A-32 along with other co-accused persons left Bombay and reached Dubai.
(ii) On 12.02.1993, A-32 along with others stayed in a building opposite to the Hotel Al-Khaleez in Dubai where Tiger Memon met them.
(iii) On 13.02.1993, A-32 along with other co-accused attended the meeting in the same building in which Javed Chikna and Tiger Memon talked about the communal riots in Bombay and Gujarat.
(iv) On 14.02.1993, A-32 along with other co-accused left Dubai and reached Islamabad where they were taken to the training camp for training in firing arms, handling LMG rifles, throwing of hand grenades, use of RDX, detonators and timer pencils.
(v) On 11.03.1993, A-32 was seen at the residence of Tiger Memon assisting in loading of vehicles with RDX for causing bomb blasts.
(vi) On 12.03.1993, he along with other persons boarded the Maruti Car driven by him (A-32) in which 30 hand grenades were kept and they took it to the Mahim Slopeway, Koliwada where he along with others threw hand grenades at Fishermens Colony causing blasts.
Reference to A-39
(i) A-39 was present in the training camp in Pakistan where they were imparted training in use of arms and explosives.
(ii) On 11.03.1993, A-39 (referred to as Akram) was seen at the residence of Tiger Memon at the Al-Hussaini building along with other accused persons where vehicles were being loaded with RDX.
(iii) A-39 along with other conspirators boarded the Maruti Car to Mahim Slopeway, Koliwada and threw hand grenades. After that, he took over the bag of remaining hand grenades and the pistol given to him earlier and left the vehicle near Bandra Reclamation.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
262. 8 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. He made the following assertions:-
Reference to A-32
(i) A-32 took out rifles from the sack and cleaned them.
(ii) A-32 carried food for other co-conspirators at the Al-Hussaini building.
Reference to A-39
(i) A-39 was a member of the meeting addressed by Tiger Memon, where he was asked to take revenge against the killings of Muslims in Bombay and Surat.
(ii) He along with others were paid Rs.5,000/- by Tiger Memon in the said meeting.
Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64)
262. 9 Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and 24.01.1995 by HC Singh (PW-474), the then Superintendent of Police, CBI/SPE/STF, New Delhi. A-64 made the following assertions:
Reference to A-32
(i) A-32 was present at Dubai when A-64 and others reached there.
(ii) A-32 attended conspiratorial meetings at Dubai.
(iii) A-32 received training in use of arms and explosives in Pakistan.
Reference to A-39
(i) A-39 went to Pakistan by a PIA Flight and received training.
(ii) A-39 attended a conspiratorial meeting on 10.03.1993 at the residence of Mobina.
(iii) A-39, along with other co-accused, on being asked by Tiger Memon whether they were prepared, replied in the affirmative.
(iv) A-39 actively participated in preparation of vehicle bombs at the Al-Hussaini Building on the night of 11.03.1993 by using RDX which had landed at Shekhadi.
Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94)
262. 10 Confessional statement of A-94 under Section 15 of TADA has been recorded on 14.05.1993 (18:30) and 16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. He made the following assertions:-
Reference to A-32
On 10.03.1993, A-32 accompanied with Niaz @ Aslam, Usman (PW-2) and Feroz (A-39) went to meet Tiger Memon in a white Maruti Car to a building behind Bhabha Hospital. In the said meeting, Tiger enquired as to who knows driving etc. In the said meeting, he also distributed Rs.5,000/- to each one of them.
Reference to A-36
A-36 received training in arms in Pakistan. Training was also given in handling of pistols, rifles, hand grenades, rocket launchers and preparation of RDX bombs.
Reference to A-39
(i) A-39 received training in arms in Pakistan. Training was also given in handling of pistols, rifles, hand grenades, rocket launchers and making of RDX bombs.
(ii) On 10.03.1993, A-39 along with Nasim @ Aslam, Usman, Rafiq and Zakir went to meet Tiger Memon in a white Maruti Car to a building behind Bhabha Hospital where Tiger enquired as to who knows driving etc. In the said meeting, Tiger also distributed Rs. 5,000/- to each one of them.
Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98)
262. 11 Confessional statement of A-98 under Section 15 of TADA has been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. He made the following assertions:-
Reference to A-32
(i) A-32 received training in handling of different types of arms and ammunitions, hand grenades and making of bombs by using RDX.
(ii) On 01.03.1993, after all others also reached Dubai, A-32, at the instance of Tiger Memon, took oath after placing his hands on holy Quran. He also heard about the speech given by Tiger regarding the riots in Bombay.
Reference to A-36
(i) A-36 received training in handling of different types of arms and ammunitions, hand grenades and making of bombs by using RDX.
(ii) On 01.03.1993, A-36 along with other conspirators, at the instance of Tiger Memon, took oath in Dubai after placing his hands on holy Quran. A-36 also heard about the speech given by Tiger regarding the riots in Bombay.
Reference to A-39
(i) On 08.02.1993, A-39 along with Niyaz proceeded to Dubai. At the airport, he was received by Ayub Memon and stayed with Tahir.
(ii) A-39 received training in handling of different types of arms and ammunitions, hand grenades and making of bombs by using RDX. During training, his assumed name was Akram.
(iii) On 01.03.1993, after all others also reached Dubai, A-39, at the instance of Tiger, took oath after placing his hands on Quran. He also heard about the speech given by Tiger regarding the riots in Bombay.
Confessional Statement of Mohd. Parvez Zulfikar Qureshi (A-100)
262. 12 Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and 17.04.1993 (17:00 hrs.) by Sanjay Pandey (PW 492), the then DCP, Zone-VIII, Bombay. He made the following assertions:-
Reference to A-32
(i) A-32 participated in the training of fire arms and ammunitions in Pakistan along with his associates during February, 1993.
(ii) On 02.03.1993, A-32 came back to Dubai, where Tiger Memon gave 200 Dirhams to each one of them and administered oath on Quran to take revenge against Hindus for demolition of Babri Masjid and their tyranny perpetrated on them.
(iii) A-32 was present at the residence of Tiger Memon at Al-Hussaini building on the night of 11.03.1993 along with other co-accused.
Reference to A-39
A-39 participated in the training of fire arms and ammunitions at Islamabad, Pakistan along with his associates during Feb. 1993.
263. A perusal of the confessional statements of all the above accused viz., A-13, A-23, A-29, A-49, A-52, A-57, A-64, A-94, A-98 and A-100 clearly establish the fact that the appellants i.e., A-32, A-36 and A-39 were present at Al-Hussaini Building in the night intervening 11/12.03.1993 and actively participated in filling of RDX in the cavities of vehicles which were later planted at various targets in Bombay causing irreparable damage to life and property. It is also sufficiently established that they went to Pakistan via Dubai and received training in handling of arms and ammunitions at the hands of Tiger Memon and all of them also took oath on holy Quran to take revenge for the riots in Bombay and to keep the training in Pakistan a secret. It is also sufficiently proved that in pursuance of the said conspiracy, all the appellants herein threw hand grenades in Fishermens Colony at Mahim on 12.03.1993 causing death of 3 persons and injuring 6 others.
Deposition of Prosecution Witnesses:
Deposition of Mohammed Usman Ahmed Zan Khan (PW-2) (Approver)
264. PW-2 deposed as under:-
Reference to A-32
(i) He knew A-32 as Zakir and identified him in the court.
(ii) He accompanied A-32 and other co-accused persons to Dubai in February, 1993.
(iii) Ayub Memon (AA), brother of Tiger Memon, received them at Dubai Airport and Tiger Memon also visited them at Dubai.
(iv) In Dubai, A-32 informed PW-2 and other co-accused persons that Tiger Memon had asked them to come to Dubai Airport. All the accused persons, including A-32, then boarded a flight to Islamabad, Pakistan.
(v) On reaching Islamabad, all the accused persons including A-32, were taken out of the Airport without any immigration check.
(vi) In Pakistan, all of them received training in use of RDX, pencil detonators, guns and hand grenades.
(vii) On return to Dubai, all the accused persons met at a flat where Tiger Memon was also present. In this conspiratorial meeting, they discussed about the riots in Bombay and took oath on holy Quran to take revenge and not to disclose the secret of the training in Pakistan to anyone.
(viii) On 08.03.1993, several accused persons including A-32 met at the residence of Babloo (AA) where targets were selected by Tiger Memon.
(ix) A-32 attended another meeting on 10.03.1993 at Bandra where he met Tiger Memon and other co-accused and they discussed about the targets and A-32 gave his report on Chembur Refinery.
(x) PW-2 along with A-32 conducted the survey of Bharat Petroleum Refinery as a possible target of blasts.
Reference to A-36
(i) A-36 also joined training in Pakistan.
(ii) A-36 attended the meeting at the Al-Hussaini building on 11.03.1993 where targets were discussed.
(iii) A-36 received four hand grenades from Javed Chikna (AA) on 12.03.1993 and was instructed to throw the same at Fishermens colony at Mahim.
Reference to A-39
(i) A-39 joined training in Pakistan
(ii) In Dubai, A-39 also took oath on holy Quran along with other co-accused at the instance of Tiger Memon to keep the training in Pakistan a secret.
(iii) A-39 was present in the meeting at Shakeels place on 07.03.1993 where Tiger Memon discussed about targets.
(iv) On 11.03.1993, A-39 along with other co-accused persons went to survey Bharat Refinery as a prospective target.
265. A perusal of the deposition of PW-2 clearly establishes and fully corroborates the confessions of the appellants in all material particulars that the appellants played an active and crucial role in achieving the object of the conspiracy. It further corroborates the fact that they traveled to Pakistan and received training in handling of arms and ammunitions, explosive substances and throwing of hand grenades. They attended meetings at Dubai and in India and also took oath on holy Quran to take revenge. They participated in filling RDX in vehicles which were used to cause explosions at targets and hurled hand grenades at innocent people in Fishermens colony at Mahim, on 12.03.1993.
Deposition of Laxman Patil (PW-5)
265. 1 PW-5 is a resident of the Fishermens Colony and is an eye-witness to the incident. He witnessed the incident while he was waiting on the road.
(i) He identified A-52, A-32, A-36, A-13 and A-43 in court.
(ii) He participated in the identification parade dated 15.05.1993 conducted at Mahim Police Station by Special Executive Magistrate (PW-469).
(iii) He also identified the car bearing No. MP-13-D-385 in which the appellants came to Mahim slopeway in order to throw hand grenades.
Deposition of Santosh Patil (PW-6)
265. 2 PW-6 deposed as follows:
(i) He is a resident of Fishermens Colony at Mahim. He witnessed the said incident while he was waiting near Municipal School at Mahim Slope.
(ii) He deposed that the appellants came in a Maruti Van to the said Colony and the number of the said vehicle was MP 385.
(iii) He identified A-52, A-32, A-36, A-13, A-43 and A-39 in the Identification Parade conducted in the Court on 20.09.1995.
(iv) He also identified A-32, A-36 and A-39 in the identification parade dated 15.05.1993 conducted at Mahim Police Station by Special Executive Magistrate, PW-469.
Deposition of Shashikant Shetty (PW 13)
265. 3 PW-13 is an eye-witness and a resident of Mahim Fishermens Colony. He deposed as under:-
(i) He came out of his house after hearing the sound of explosion.
(ii) He identified A-52, A-32, A-36, A-39, A-13 and A-43 in Court.
(iii) He participated in the identification parade dated 15.05.1993, conducted at Mahim police station by Special Executive Magistrate PW-469.
(iv) He identified the Maruti Van in which the accused persons came to Fishermens Colony as MP-D-13-385.
(v) PW-13 lodged the First Information Report in respect of the explosions at Fishermens Colony.
266. From the depositions of PWs-5, 6 and 13, the eye-witnesses, the identification of the appellants as those persons who threw hand grenades towards Fishermens Colony at Mahim on 12.03.1993 has been established. They also identified the Maruti Van bearing No. MP-D-13-385 as the vehicle in which the appellants came to the place of incident and fled away. Depositions of the said witnesses fully establish the charge in respect of the incident at Fishermens colony against the appellants.
Investigation, Recoveries and FSL Report:
267. On 12.03.1993, Shantaram Gangaram Hire (PW-562), Police Officer, visited the blast site i.e., Fishermens colony at Mahim and prepared spot panchnama (Exh. 1942) in the presence of panch witnesses Dayaram Timbak Akare and Mahendra Sadanand Mehre. PW 562, in the presence of Tamore (PW-330) and experts collected the articles from the blast site vide Panchnama Exh. No. 1221 which were sent to the Forensic Science Laboratory (FSL) for opinion. The FSL Report Exh. 1943 proved remnants to be explosives and part of hand grenades.
Evidence with regard to injured victims and deceased:
268. It is seen from the records that in July, 1993, Achyut Shamrao Pawal (PW-542), Police Inspector, collected the injury certificates of the following injured persons, namely, Mr. Gurudutt Agaskar, Ms. Rajashri Agaskar and Ms. Sheetal Kenihas from Bhaba Hospital which amply prove that they sustained injuries during the blast. Injured Shashikant Shetty (PW-13) and Sheetal Keni (PW-412) also proved to have sustained injuries during the blast. Dr. Wadekar (PW-641) and Dr. Krishna Kumar (PW-640) were the doctors who have proved the injury certificates issued to PW-13 and Sheetal Keni (PW-412) which are Exh. Nos. 2374 and 2372 respectively.
269. Gajanan Tare (PW-413) (husband of the deceased Gulab Tare) and Karande (PW-414) (nephew of the deceased Hira Dhondu Sawant) claimants of two bodies, have proved the death of Mrs. Gulab Tare (wife of PW-413) and Smt. Hira Dhondu Sawant (PW 414s aunt) in the said incident. Dr. Pujari (PW-482) and Gangadhar Uppe (PW-480) have established the cause of death to be the injuries received on 12.03.1993. Achyut Shamrao Pawal (PW-542) also proved the death of 3 persons at Fishermens Colony in the said incident.
Vehicle used for committing the act:
270. The prosecution has brought to our notice that the vehicle used by the appellants for traveling to Fishermens Colony was purchased by Shafi (AA) which has been proved through the following witnesses:
Deposition of Kailash Govind Rao Baheti (PW 342)
270.1 He deposed as follows:-
On 18.01.1993 I had received a telephone call given by Shakil Hasham from Bombay. Shakil requested me to book one red coloured Maruti Van in the name of Asif Darvesh resident of M.G. Road, Indore and another new Maruti Van of blue colour in the name of Shri Kasam Ahmed residing at Indira Nagar, Ujjain. He also requested me to register both the Maruti Van at Indore and send the same to Bombay. He also told me that the payments of the same would be made at Bombay to the driver. I quoted a price of Rs.1,69,000/- per vehicle inclusive of registration and transport charges. I was having red coloured Maruti Van brought by me from M/s Bhatia & Company, Gurgaon, Haryana and blue coloured Maruti Van brought from Vipul Motors, Faridabad, Haryana, in my stock. I had brought both the said vehicles by making advance payment. After receipt of booking from Shakil Hasham for red and blue coloured brand new Maruti Vans, I informed the details of the purchasers to M/s Bhatia Company and M/s Vipul Motors. After receipt of the said letters and bills from both the said companies in the name of purchasers who wanted red and blue Maruti Vans I sent papers of both the Vans for registration to RTO. The blue coloured Maruti Van was registered in the name of Kasam Ahmed at Ujjain RTO. The blue coloured Maruti Van could not be registered at Indore due to lack of E-Form necessary for registration. Thereafter, I sent both the said Vans to Bombay to Shakil Hasham. Shakil Hasham received the delivery and paid Rs.3,38,000/- to my drivers. My drivers gave the said amount to me. I made the necessary entries in my office record for sending the said Vans to Bombay to Shakil Hasham after purchasing the same for the parties told by him. The RTO Authority at Ujjain had given registration Number MP-13-D-0385 to blue coloured Maruti Van. Today I am not remembering the engine number and chassis number of the said Maruti Van.
Deposition of Shakeel Suleman Hasham (PW-366)
270.2 He deposed that he had asked PW-342 to arrange for two Maruti Vans (red and blue) in February, 1993. Both the vans were purchased in Madhya Pradesh and the blue Maruti Van was registered in Ujjain with the registration number MP-13-D-0385. It is submitted that this number and the said blue Maruti Van has been identified by PWs-5, 6 and 13 in their depositions as the vehicle which was involved in the said incident at Fishermens Colony. PW 366 further deposed:
In the same month (February, 1993) I had also arranged for one blue coloured and another red coloured Maruti Vans also registered at Madhya Pradesh for Suleman Lakdawala. The said vehicles were registered at Madhya Pradesh, Indore, in the name of the purchasers given to me by Suleman Lakdawala. I had given the work of registration to one Kailash Baheti of Indore. Both the said vans were insured by Insurance Agent Rakesh Tiwari before giving the same to Suleman Lakdawala. Both the said vehicles had arrived from Indore. I had sent the same to the petrol pump of Suleman and asked him to take the delivery from the said drivers who had brought the delivery of the said vehicles. Accordingly, he took the delivery by making payment to the drivers.
270.3 The said vehicles were insured through Vijay A. Tamore (PW-338).
Evidence of travel to Dubai for training in Pakistan:
271. The Immigration Officer, Asmita Ashish Bhosale (PW-215) proved the Embarkation card (X-314) that was submitted at the Sahar Airport on 11.02.1993 by A-32 who was flying to Dubai. The Immigration Officer, Vishambhar Yadavrao Mitke (PW-212) proved the Disembarkation card given by A-32 at the time of arrival in Bombay from Dubai on 03.03.1993. The depositions of PWs-215 and 212 establish that A-32 left India on 11.02.1993 for Dubai and returned on 03.03.1993. These depositions further corroborate the confessional statement of A-32 wherein he admitted to flying to Dubai on 11.02.1993 and returned on 03.03.1993.
272. The Immigration Officer, Chandrakant Gangaram Sawant (PW-244) proved the Disembarkation card given to him by A-39 while flying to Dubai from Bombay on 08.02.1993. It is submitted that the deposition of PW-244 corroborates the confessional statement of A-39 wherein he stated that he left for Dubai on 08.02.1993 from Bombay.
273. The Immigration Officer, Ajay Krishnaji Lonaare (PW-209) proved the Disembarkation card (X-306) submitted by A-36 at the time of his arrival from Dubai to Bombay on 03.03.1993. This deposition further corroborates the confessional statement of A-36 wherein he stated that he returned from Dubai on 03.03.1993.
274. The evidence on record, particularly, as discussed above, sufficiently establish that each of the appellants, namely, A-32, A-36 and A-39 were actively involved in the conspiracy of causing blasts in Bombay in the following manner:
(i) The appellants attended conspiratorial meeting at Dubai on 01.03.1993 where they took oath on holy Quran to keep their training in Pakistan a secret.
(ii) On 08.03.1993, the appellants (A-32 and A-39) attended conspiratorial meeting at Babloos residence.
(iii) On 10.03.1993, the appellant (A-32) attended conspiratorial meeting at Mobinas residence.
(iv) On 11/12.03.1993, the appellants (A-36 and A-39) attended conspiratorial meeting at the Al-Hussaini building.
(v) The appellants received weapons training in Pakistan;
(vi) On 11/12.03.1993, the appellants participated in filling of RDX in vehicles at the Al-Hussaini building and;
(vii) On 12.03.1993, the appellants threw hand grenades towards the Fishermens colony which resulted in death of 3 persons and injuring 6 others.
275. It is contended by Mr. Manish that the appellant (A-32) was working as a floor mechanic prior to 1992 December riots, and since then he was jobless and was lured to go to Dubai as it attracts a large number of Indian mechanics, plumbers, electricians, etc. and he willingly went to Dubai not knowing that he was to attend a training camp in Pakistan. It is further contended that he was forced to go to Pakistan since his passport was taken from him in Dubai, and accordingly, he had no choice but to follow the instructions. He thus did not willingly participated in the conspiracy but was forced to carry out conspiratorial acts.
276. As against this argument, learned senior counsel for the CBI pointed out that this line of defence has never been urged by the appellant before the trial Court. It is further pointed out that had there been any compulsion, the appellant could have opted out of the conspiracy upon his return from Dubai, which he did not do. Further, on a holistic reading of the entire body of evidence, it is clear that from the very beginning, the appellants have willingly participated in the successful execution of the object of conspiracy. The argument of coercion is a belated argument and necessarily a product of afterthought. It is further contended on behalf of the appellant (A-32) that the reasons for his involvement in the conspiracy were (i) money, (ii) provocation, and (iii) riots. It is further contended that there is no record anywhere that someone will take care of the family of the appellant (A-32) after the blasts. In such a situation, appellant would not have willingly participated in such a conspiracy without having thought about his family. In reply, learned senior counsel for the CBI contended that he was fully conscious of the conspiratorial acts and willingly participated in the conspiracy. The loss, if any, suffered by the appellant during the riots does not justify his terrorist act of killing innocent people. The fact that appellant (A-32) was fully conscious of his acts is further established from his conduct subsequent to the incident, wherein he traveled to Karnataka immediately after the blasts in order to evade arrest.
277. The fact that appellant (A-32) was actively involved in the conspiratorial acts is clear from his own confession wherein he has stated that after their return to Dubai from Pakistan, he along with other co-conspirators took oath on holy Quran that they will take revenge for the Bombay riots and will not disclose the training in Pakistan to anyone.
278. All the aforesaid acts clearly establish the fact that the appellants knowingly and willingly participated in the conspiratorial acts and were fully aware and conscious of the fact that they were participating in a conspiracy with a grave design.
279. It is further contended by the counsel for the appellants that the Al- Hussaini building is located in a densely populated area within a few hundred meters of Mahim Police Station and it is strange that neither the statement of the security guard was recorded nor any of the neighbours saw anyone filling RDX in vehicles in the intervening night between 11/12.03.1993. Therefore, learned counsel for the appellants vehemently contended that the prosecution story is fabricated and no reliance can be placed on it. But it is amply clear from the materials on record, the confessional statements of the appellants and other co-accused, deposition of prosecution witnesses and the testimony of the Approver (PW-2) that RDX was filled in vehicles which were parked in the garages at Al-Hussaini building. The aforesaid acts were the result of a conspiracy and were carried out in a covert manner in the night at the Al Hussaini Building.
280. It is further contended by the appellant (A-32) that there are material inconsistencies between his confession and that of A-39 that A-32 went to Mahim on 12.03.1993 in a blue Maruti car while A-39 stated that he went in a white Maruti car to Mahim. In our considered view, these are minor inconsistencies which do not go to the root of the matter since both the abovesaid accused have admitted to have gone to Mahim on the fateful day in a Maruti car.
281. It is further contended by the counsel for the appellants that PW-5 is not an independent witness but is an interested witness since his brother-in-law and sister-in-law sustained injuries in the blast at Mahim. In the light of the materials placed, we hold that the testimony of PW-5 is convincing and even the credibility of the witness has not been shaken in the cross-examination. The testimony of Laxman Patil (PW-5) is further corroborated by the testimony of Santosh Patil (PW-6). A perusal of all the above materials clearly shows that the prosecution has established all the charges and the Designated Court rightly convicted them for the same.
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