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Yakub Abdul Razak Memon Vs. The State of Maharashtra, through CBI Bombay (cont.)

A brief summary of the statement with reference to theappellant is as follows:-

(i) When A-9 along with Parvez Nazir Ahmed Shaikh (A-12) and Asgar Yusuf Mukadam (A-10) reached the house of Anwar, a boy of fair color with curly hair, wearing coat and pant, also came along with him.

(ii) After Anwar inserted the pencil detonators in the bags, the boy with curly hair was dropped and was asked to go to Hotel Centaur, Juhu and to plant the bag at the designated place and come back.

(iii) At the Al-Hussaini building, first, the boy with curly hair came back and then Anwar came back followed by Parvez (A-12).(iv) In the afternoon of 12.03.1993, on the instructions of Anwar, A-44 drove the scooter filled with black chemical and parked the same at Zaveri Bazaar.Confessional Statement of Asgar Yusuf Mukadam (A-10) Confessional statement of A-10 under Section 15 of TADA has beenrecorded on 20.04.1993 and 23.04.1993 at 18:00 hrs by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. A brief summary of the confessionalstatement of A-10 with reference to the appellant (A-44) is as follows:

(i) When A-10 reached the house of Anwar, he came down along with a boy and all of them sat in a car. In the car, Anwar took out pencil detonators from his pocket and inserted the same in the bags. Thereafter, Anwar instructed the boy (whom he referred to as Mushtaq) to get down with the bag and plant the same at the designated place.

(ii) When A-10 reached Al-Hussaini after dropping Anwar and others, the appellant (A-44) also reached there. Thereafter, as instructed by Anwar, A-44 drove a scooter filled with RDX and parked the same at Zaveri Bazaar.Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12) Confessional statement of A-12 under Section 15 of TADA has beenrecorded on 18.04.1993 and 20.04.1994 at 06:50 hrs. by Shri P.K. Jain (PW-189), the then DCP, Zone X, Bombay. A brief summary of the statement withreference to the appellant (A-44) is as follows:(i) When A-12 along with A-10 and A-9 reached the house of Anwar, they met a person with curly hair whose name was Mushtaq. Mustaq and Anwar sat in a car, and thereafter, Anwar opened the bags and inserted pencil detonators which he was carrying.

(ii) When A-12 reached the Al-Hussaini building after planting the suitcase at Hotel Sea Rock, the appellant (A-44) had also reached there.Confessional Statement of Imtiyaz Yunus Miyan Ghavate (A-15) Confessional statement of A-15 under Section 15 of TADA has beenrecorded on 07.05.1993 and 09.05.1993 by Shri K.L. Bishnoi, (PW-193), thethen DCP, Zone III, Bombay. A brief summary of the said statement withreference to the appellant is as follows:(i) When A-15 reached the residence of Anwar, the appellant had also come there. He had curly hair and fair complexion and was wearing a black coloured coat.(ii) A-10 came there in a maroon coloured Maruti Van and the appellant along with Anwar and others sat in the van and left the place.

(iii) When the appellant came to the Al-Hussaini Building, he was holding his coat in his hand. Thereafter, Anwar instructed him to plant the scooter filled with RDX.

293) A perusal of the confessional statements of all the above accused,viz., A-9, A-10 A-12 and A-15 clearly establish the fact that itcorroborates the confessional statement of the appellant (A-44). The above-said confessions of the co-accused further establish the following facts:-

(i) The appellant (A-44) was seen in the company of the Anwar (AA);

(ii) The appellant went along with Anwar (AA) and Asgar Yusuf Mukadam (A- 10) in a Maruti Van.

(iii) The appellant witnessed the insertion of pencil detonators in the suitcases filled with RDX;(iv) The appellant planted the suitcase filled with RDX in Hotel Centaur Juhu;

(v) The appellant returned to the Al-Hussaini building and reported the successful planting of the suitcase bomb to Anwar; and

(vi) On the instructions of Anwar (AA), the appellant proceeded to park the scooter filled with RDX at Zaveri Bazaar.Deposition of Prosecution Witnesses:Deposition of Ravindra Sitaram Vichare (PW-17)

294) The deposition of PW-17 was recorded on 20.11.1995.

The relevantmaterial in his evidence is as follows:-

(i) He deposed that at the relevant time, he was working as a bellboy at Hotel Centaur, Juhu.

(ii) On 12.03.1993, around 11:45 am, one guest got down from the motor taxi and was carrying a light blue coloured briefcase type bag.

(iii) He took the bag from the hands of the guest and kept it in the Baggage Section.

(iv) After sometime, the guest came to the Baggage Section and picked up his bag and enquired about the lift for going to the room.

(v) He showed the way towards the lift to the guest.

(vi) At around 3:00/3:30 p.m., when he was in the lobby of the Hotel, there was a loud sound of explosion.(vii) He identified the appellant (A-44) before the court in the dock as the person who came to the Hotel on 12.03.1993.

(viii) He also identified the appellant in the identification parade dated 07.06.1993 conducted by Special Executive Magistrate, Vaman D. Sapre (PW-249) at Santacruz Police Station.Deposition of Milind Purushottam Kamble (PW-18) The deposition of PW-18 was recorded on 22.11.1995 and he deposedthat:

(i) At the relevant time, he was working as an attendant in the House Keeping Department of Hotel Centaur, Juhu.

(ii) On 12.03.1993, the appellant (A-44) enquired from him about the location of Room No. 3078 in the Hotel.

(iii) Floor Supervisor, who was also present with PW-18, pointed out towards Room No. 3078.

(iv) He saw the appellant (A-44) entering into Room No. 3078 with a light blue color suitcase.

(v) Thereafter, the appellant (A-44) came out of the room and left saying that he is going to the restaurant to meet someone and will return shortly. At that time, he was not carrying the blue suitcase.(vi) He identified the appellant (A-44) before the Court in the dock as the person who kept the suitcase in Room No. 3078.

(vii) He also identified the appellant (A-44) in the identification parade held on 07.06.1993 conducted by the Special Executive Magistrate, Vaman D. Sapre (PW-249).

(viii) He also identified Article No. 9 (coat), Article No. 10 (black pant) and Article No. 11 (white shirt) being clothes worn by the appellant (A-44) on 12.03.1993 when he visited the Hotel.

295) From the perusal of the testimony of PWs-17 and 18, it is clear thatthe witnesses established the identity of the person, who planted thesuitcase in the hotel, as the appellant. They very well proved how theappellant went to the room where the blast took place. The presence ofwitnesses in the hotel at the time when the appellant went to the hotel forplanting the suitcase has been fully established. The witnesses havewithstood the lengthy cross-examination and established themselves ascredible and reliable witnesses.Deposition of Nitin Sumitran (PW-260) The deposition of PW-260 was recorded on 13.01.1998.

He deposed that:

(i) At the relevant time, he was working as a receptionist at Hotel Centaur, Juhu.

(ii) On 08.03.1993, a male person, aged about 30 to 35 years, approached the Front Desk and told that he was having a reservation in the name of one Mr. Sanjeev Rai and that he had come to make an advance payment of Rs.5,000/- towards reservation of the room.Deposition of Sanjay Manohar Dalvi (PW-261) The deposition of PW-261 was recorded on 13.01.1998. He deposed thatat the relevant time, he was working as the Front Office Cashier and heconfirmed that a room was booked at Hotel Centaur, Juhu by one Mr. SanjeevRai on 08.03.1993 and he issued a receipt of Rs.5,000/- (Exh. 1093) asadvance payment towards the room rent.Deposition of Cedric Merwyn Creado (PW-262) The deposition of PW-262 was recorded on 13.01.1998.

He deposed that:

(i) At the relevant time, he was working as a Front Office Receptionist and on 11.03.1993, a male person came to the desk and enquired for a room.

(ii) He asked him as to whether he has any prior reservation, on which, he replied that he was having a reservation in the name of Sanjeev Rai.

(iii) He gave him a registration card which he returned after filling the same.(iv) On verification of the card, he found that the name was mentioned as 'Gyanchandani Lalit' and the address was 501, Bel Air Apartment, Linking Road, Bandra, Bombay. As the booking was made in the name of Sanjeev Rai, he asked him as to why he has written a different name on which he replied that since people know him by this name that is why he had mentioned the said name.

(v) He deleted the name and re-wrote the name as Sanjeev Rai on the Registration Card. A corrected reservation slip (Exh. 1096) was also prepared by the Hotel staff.

(vi) Thereafter, PW-262 allotted Room No. 3078 to him and gave him the keys of the room.Deposition of Titus Peter Paul Pinto (PW-102) The deposition of PW-102 was recorded on 27.09.1996. PW-102 is aresident of Bel Air Apartment since 1963 and he is the Secretary of thesaid Cooperative Housing Society. He deposed that there is no flat bearingNo. 501 in the said Apartment. He further deposed that no occupant by thename of Sanjeev Rai or Gyanchandani Lalit was living at the relevant timein that building.Deposition of Ravindra Mahadev Kolte (PW-322) The deposition of PW-322 was recorded on 27.04.1998.

He deposed that:(i) At the relevant time, he was working as an Assistant Security Officer at Hotel Centaur, Juhu. He also described about the scene of the blast.(ii) Three persons were injured in the blast on 12.03.1993 at 15:30 hrs. in Room No. 3078.(iii) The ceiling and flooring of the said room were completely destroyed and the occupant of the said room was not present in the room at the time of blast.(iv) He also made a complaint which was registered as C.R. No. 155/1993.Deposition of Jaisingh Shivajirao Patil, Police Officer, (PW-544) The deposition of PW-544 was recorded on 10.12.1999.

In hisdeposition, he deposed that:-

(i) He inspected the scene of the blast in the presence of panch witness Tiyadath R. Nair (PW-438) and prepared a spot panchnama Exh. No. 1414.(ii) He also prepared a panchnama dated 15.03.1993 of four sealed sample packets containing debris collected by the experts from FSL marked as Exh. No. 1859 in the presence of Sadashiv M. Pattanshetti (PW-549).(iii) He also proved that he recorded FIR being C.R. No. 155/1993 marked as Exh. No. 1208.

(iv) The aforesaid articles which were seized by him were sent to the forensic lab for examination.

(v) FSL Reports (Exh. Nos. 2604 and 2605) show the presence of traces of High Explosive substance, viz., RDX on these articles.Deposition of Sridhar M. Pandit (PW-355) At the relevant time, he was working as GM (Technical), HotelCorporation of India. He deposed that he inspected the site of theexplosion and the estimated damage at Hotel Centaur, Juhu came to the tuneof Rs. 2.1 crores.Deposition of Ketan Kantilal Shah (PW-433) He was the guest staying at the Hotel at the relevant time and hasproved the injuries sustained by him on account of the explosion in theHotel on 12.03.1993.Deposition of Vaman Dhondu Sapre, Special Executive Magistrate (PW-249) He is the person who conducted TIP on 07.06.1993 at Santacruz PoliceStation in which the appellant (A-44) was identified by PWs-17 and 18 andhas proved the TIP panchnama Exh. No. 1071 dated 07.06.1993.Deposition of Ramesh Pandurang Bhasare (PW-74) He is a panch witness who was running a cigarette-bidi stall at Zaveri

Bazaar at the relevant time and he deposed as under:

(i) The appellant (A-44) made a statement in the office of Crime Branch on 19.05.1993.

(ii) Thereafter, the appellant (A-44) led the police party and panchas to a Footwear Shop at Khambekar Street and took out the keys from a pit like portion on the roof.

(iii) The police party was further taken to Room No. 12 of a building opposite to Building No. 160 which was locked.

(iv) The appellant opened the lock with the keys which he had taken out from the pit.

(v) Thereafter, from a cupboard, the appellant (A-44) took out a black coat, black pant, white shirt and two keys marked as Article 258-B(i).

(vi) The police party recovered the aforesaid articles vide discovery panchnama marked as Exhibit 389. The eye witness at the hotel has also identified the above cloth asthe same which was worn by the appellant (A-44) at the time of planting ofsuitcase bomb.Evidence in respect of the unexploded scooter parked in front of DPJewellers at Zaveri Bazaar:Deposition of Shashikant Ramkumar Shukla (PW-26).

296) PW-26 is an eye witness to the incident who witnessed the parking ofthe said scooter by the appellant (A-44) in front of the shop of D.P.Jewellers, Zaveri Bazaar.

He deposed that:

(i) At the relevant time, he was the owner of a cutlery shop at Vithalwadi Naka, Zaveri Bazaar.

(ii) On 12.03.1993, he saw the appellant (A-44) quarelling with a car driver in front of D.P. Jewellers, Zaveri Bazaar for parking space. He forcibly parked the grey coloured scooter with Registration No. MH- 05-TC 16 and left the place on the pretext of offering namaz at 'Juma Masjid'.

(iii) On 16.03.1993, he learnt that the scooter parked in front of the shop of D.P. Jewellers, Zaveri Bazaar contained explosives.

(iv) Thereafter, he went to Lokmanya Tilak Marg Police Station to see the scooter which was taken into custody by the police. There, he met PI Subhash Jadhav who recorded his statement and showed him two scooters. He identified the scooter which was parked in front of the shop of D.P. Jewellers at Zaveri Bazaar.

(v) He also identified the appellant (A-44) before the court in the dock as the person who had parked the scooter(vi) He also identified the appellant (A-44) in the Identification Parade dated 04.06.1993 conducted by Sharad Vichare, Special Executive Magistrate, (PW-459).Deposition of Shantaram Sakharam Sigwan (PW-27) (eye-witness). PW-27 is a salesman working at Shop No. 263, Shaikh Memon Street,Zaveri Bazaar.

He deposed that:

(i) He saw the appellant (A-44) arguing with a car driver to park his scooter in front of D.P. Jewellers. After forcibly parking his grey scooter No. MH-05-TC-16, the appellant left on the pretext of offering namaz at 'Juma Masjid'.

(ii) On 12.03.1993, an explosion took place in front of the shop of Narayandas Jewellers and there was panic in the locality and all the shop keepers closed their shops and everyone left for their home.

(iii) On 16.03.1993, he learnt from a feriwala that the police have seized a scooter which was parked in front of the shop of D.P. Jewellers.

(iv) He, thereafter, went to the police station and noticed that a grey scooter bearing Registration No. MH-05-TC-16 was parked in the compound of the police station.

(v) He identified the scooter and PI Jadhav recorded his statement.

(vi) He also identified the appellant (A-44) before the court in the dock as the person who had parked the scooter.

(vii) PW-27 also identified the appellant (A-44) in the TIP conducted on 04.06.1993 by Sharad S. Vichare, Special Executive Magistrate, (PW- 459) and Memorandum Panchnama Exh. No. 1461 was prepared for the same.

297) The eye witnesses discussed above clearly established the followingfacts:

(i) the appellant (A-44) came on a scooter at the relevant time.

(ii) the appellant (A-44) had a sort of quarrel with a car driver with regard to parking.

(iii) the appellant (A-44) tried to forcibly park the said scooter, which drew the attention of the witnesses.

(iv) the appellant (A-44) left the place on the pretext of offering namaz.(v) the identity of the appellant (A-44) is fully established and he has been identified by both the witnesses in TIP.Deposition of Subhash Dattaram Jadhav (PW-547) At the relevant time, PW-547 was working as PI with LT Marg PoliceStation.

He deposed that:

(i) He received a message that an unclaimed scooter has been found parked in front of DP Jewellers at Zaveri Bazaar.

(ii) He visited Zaveri Bazaar along with Panch Witness Shambhu K. Dwadiga (PW-451).

(iii) He inspected the scooter and noticed that there were black spots outside the dicky of the scooter which was locked. He further deposed that the handle of the scooter was free.

(iv) Since blast had already occurred in Bombay, he got suspicious and, accordingly, sent a message to the control room for sending Bomb Detection and Disposal Squad (BDDS).

(v) Meanwhile, he cordoned off the area where the scooter was parked and sand bags were placed around the scooter and two panch witnesses, namely, Shri Shambhu (PW-451) and Shri Prasanna were also called.

(vi) Nand Kumar Chaugule (PW-444), an officer of BDDS, reached the spot along with his team and inspected the vehicle.

(vii) PW-444 found that there was a layer of brownish oily substance at the top, and thereafter, a layer of blackish oily substance and below the blackish substance, again one brownish layer was present in the dicky. He also noticed that the said cakes were also containing some pallets.

(viii) PW-547 further deposed that PW-444 took away three metallic tubes and one pipe with holes from the said three layers. The materials recovered were sealed in packets, and thereafter, wrapped in a brown paper.

(ix) PW-444 prepared a spot panchnama dated 15.03.1993 and instructed the police constable to take the scooter to LT Marg Police Station.

(x) On 10.06.1993, SI Dastagir Ghavandi (PW-552) handed over two keys seized by him during investigation of C.R. No. 155/1993.

(xi) On the same day, he called Vijay Ramji Wala (PW-454), Supervisor and Mr. Ajit Vanjari (PW-651) of Vasan Automobiles and in the presence of the two panchas, he gave the said two keys to PW-454 to check whether the same fits in the lock of the scooter which was parked in front of D.P. Jewellers. PW-454 was able to apply the keys to the said scooter.

(xii) He then drew a panchnama which is marked as Exh. No. 1868 stating that the keys found matched with all the three locks of the scooter, i.e., dicky lock, steering lock and the helmet-box lock.

The deposition of PW-547 has proved that:

(i) A scooter was reported abandoned in front of D.P. Jewellers at Zaveri Bazaar.

(ii) The condition in which the scooter was found aroused suspicion.

(iii) PW-444 was called from BDDS who successfully diffused the bomb fitted in the front side dicky of the scooter. (the substance subsequently was found to be RDX).

(iv) The witness, in front of the independent witnesses, also checked that the keys recovered at the instance of the appellant fitted in the scooter.Deposition of Nandkumar Anant Chaugule (PW-444). The deposition of PW-444 was recorded on 05/06.10.1998. At the timeof the incident, he was the Incharge, Senior Inspector of Police, BombDetection and Disposal Squad of CID Intelligence, Bombay.

He deposed that:

(i) On 15.03.1993, he received information through his operator that a scooter has been found lying in suspicious condition opposite to D.P. Jewellers, Zaveri Bazaar. He went to Zaveri Bazaar and inspected the scooter. The dicky of the scooter was opened by SI Pandre with the help of hook and rope.

(ii) The dicky of the said scooter contained a black substance with timer device inserted in the same. The remaining part of the dickey contained three or more polythene bags of brownish color material.

(iii) Thereafter, the timer was pulled out by SI Pandre by means of a small fishing hook tied with a rope. He further deposed that he separated the detonator from the timer pencil and made the same ineffective and handed over the same to the Police Officers at LT Marg Police Station.

(iv) The other officers from the BDDS removed the black and brown material from the front dickey of the scooter and gave the same to the police officers of LT Marg police station.

(v) From the physical appearance of the said black material, he gathered that the same was RDX and from the physical appearance of brown material, he gathered that the same was nitroglycerin, both being high explosive substances.Deposition of Dhananjay Raghunath Daund (PW-532) The deposition of PW-532 was recorded on 02.12.1999. At the relevanttime, he was a PSI attached with the Worli Police Station.

He deposedthat:

(i) He arrested the appellant (A-44) on 18.05.1993 and handed him over to PI Shri Ghavandi (PW-552), I.O. in C.R. No. 155/1993.

(ii) In the presence of Ramesh Pandurang Bhasare (PW-74), two keys of a Bajaj Scooter entangled in a ring were recovered vide disclosure and seizure Panchnama (Exh. No. 389) at the instance of the appellant who led the police party to Kwality Footwear shop, Khambekar Street.

(iii) He handed over the said keys to PI Ghavande (PW-552).The owner of the scooter was traced through examination of the followingwitnesses:Deposition of Sreeram Jeetram Vasan (PW-81)

298) PW-81 was the sub-Dealer of scooters carrying on business in the nameof Mohan Automobiles. He deposed that:

(i) He used to purchase scooters from Vasan Automobiles and sell the same to customers.

(ii) He knows a person by the name Sayed Farid Sayed Abdul Wahab @ Farid Bhai (PW-298) who is also a sub-dealer for Bajaj Auto Ltd. and is carrying on business under the name Nisha Sales and Services.

(iii) In the month of February and March, 1993, he sold 22 Bajaj Chetak Scooters and 2 Kinetic Honda Scooters to PW-298 out of the lot of 40 scooters purchased by him from Vasan Automobiles.

(iv) On 18.03.1993, when he went to the office of the Crime Branch, he identified the three scooters, which were sold by him to Nisha Sales and Services on 14.02.1993, 04.03.1993 and 11.03.1993 and he further produced the notes Exh. Nos. 424, 424-A and 424-B respectively of the said scooters to Inspector Homi Irani.Deposition of Sayeed Abdul Sattar (PW-82) PW-82 was working with Munaf Halari (AA). He had helped him ingetting loan through his friend Rahid Shaikh.

He deposed that:

(i) On 10.03.1993, Munaf (AA) contacted him for purchase of 2/3 Bajaj Scooters stating that he required the same for his foreign delegation.

(ii) On the same day, around 6 p.m., they took delivery of 2 scooters of blue and stone colour bearing registration Nos. MH-04-Z-261 and MH-05- TC-29, respectively, from Asgar Ali Tahir Ali Masalawala, Scooter Dealer, (PW 299).

(iii) Next day, i.e, on 11.03.1993, Munaf (AA) took delivery of the third scooter bearing Registration No. MH-05-TC 16 and asked PW-82 to arrange for documents for the registration of the said scooters and got two Xerox copies of Ration Card from Abdul Aziz, an RTO agent. Munaf (AA) collected the documents from him on 12.03.1993.

(iv) When he asked Munaf (AA) to repay the loan, Munaf told him to forget about it since the scooters have been purchased by Tiger Memon and that Tiger Memon has used the same for the bomb blast.(v) Munaf Halari also cautioned him not to disclose this to anyone, else Tiger Memon will shoot him and his family members.(vi) He identified the scooters in Court through their registration numbers.Deposition of Govind Bechan Baria (PW-452) At the relevant time, PW-452 was working with Excellent PetroleumCompany situated at J.J. Junction.

He deposed that:

(i) Munaf Halari (AA) had requirement of 3 scooters and he had approached him on 10.03.1993 for the same.

(ii) He suggested to him that he should go to the Scooter Dealer, Asgar Ali Tahir Ali Masalawala (PW 299).

(iii) PW-299 referred Munaf (AA) to Sayed Farid Abdul Wahab @ Farid Bhai (PW 298), Scooter Dealer who was working under the name of Nisha Sales and Services.Deposition of Ajit Vithalrao Vanjari (PW-651) PW-651, at the relevant time, was working as a Sales Manager with M/sVasan Automobiles. He deposed that he had sold 25 Bajaj Chetak Scooters toMohan Automobiles.Deposition of Sambhali S. Hargude (PW-325) PW-325 was the Sub-inspector on station house duty on 15.03.1993.

Hedeposed that:

(i) He received information about the scooter bearing Registration No. MH- 05-TC-16 parked at Zaveri Bazaar through Police Havaldar Shri Kumbhar posted at the Shaikh Memon Street chowki.(ii) In the dickey of the said scooter, the iron pieces mixed with a black coloured substance were found.(iii) The dickey was also containing a timer pencil inserted at the centre of the said black substance.

(iv) The bomb squad defused the said bomb by dismantling the timer pencil.Deposition of Vijay Ramji Wala (PW-454) PW-454 was a Service Provider at M/s Vasan Automobiles, Kalyan. Hedeposed that on being asked to inspect the scooter with the help of thekeys given to him at the LT Marg Police Station, he discovered that thesaid keys belonged to the said scooter. He was not sure about theregistration number of the scooter. He, however, said that it was eitherMH-05-TC-15 or MH-05-TD-16. He then deposed that it was MH-05-TC-16.It is relevant to point out that the keys which were recovered at theinstance of the appellant (A-44) belonged to the same scooter which wasplanted by the appellant at Zaveri Bazaar and was laden with highlyexplosive substances.

299) From the evidence discussed above, it is established that:

(i) The appellant (A-44) actively participated in the conspiracy;

(ii) He was an old associate of Tiger Memon;

(iii) He agreed with the object of conspiracy in the meeting held at Hotel Taj Mahal and performed several overt acts pursuant to the said agreement;(iv) He associated himself with Tiger Memon (AA) and on his instructions with Anwar (AA).

(v) He was seen taking instructions and being in association with Anwar (AA) by several co-conspirators.

(vi) In his presence, detonators were fitted in the suitcases filled with RDX.

(vii) He planted one such suitcase laden with RDX in Room No. 3078 of Hotel Centaur, Juhu which exploded injuring 3 persons and causing damage to the property to the tune of Rs.2.10 crores;

(viii) He parked a scooter laden with RDX in front of the shop of DP Jewellers, Zaveri Bazaar;

(ix) He threw the keys of the room on the roof of a Footwear shop where he hid the clothes he was wearing at the time of commission of offence and also the keys of the scooter which he had parked at Zaveri Bazaar to avoid detection by police; and(x) He went to his friend Md. Farooq Mohammed Yusuf Pawale (A-16) and told him everything who, in turn, supported him by saying that 'Allah' would help him as he has done this for his community.

300) It is contended on behalf of the appellant (A-44) that no TIP wasconducted in reality. It is pointed out by the prosecution that in theinstant case, after the arrest of the appellant, identification parade wasconducted on 04.06.1993 by Sharad S. Vichare, Special Executive Magistrate(PW-459) wherein PWs-27 and 26 identified the appellant as the person whohad parked the scooter filled with RDX at Zaveri Bazaar. It is furthersubmitted that on 07.06.1993, TIP was conducted by Vaman D. Sapre, SpecialExecutive Magistrate (PW-249) wherein PWs-17 and 18 identified theappellant as the person who had visited the Hotel Centaur, Juhu and plantedthe suitcase in Room No. 3078 of the Hotel. It is further submitted thatthe said parade was duly conducted in the presence of panch witnesses andmemorandum panchnamas were also prepared for the same.

301) It is further contended on behalf of the appellant (A-44) thatNandkumar Anant Chaugule (PW-444), an officer of BDDS, forcibly opened thelock of the dickey so the question of opening the dickey with the keysrecovered by PW-454 from the roof of the footwear shop does not arise.

302) Further, the prosecution submitted that the appellant (A-44), afterhis arrest on 18.05.1993, made a disclosure statement on 19.05.1993 and ledthe police party to Kwality Footwear shop at Khambekar street, andthereafter, he took the keys from its roof and further led the police partyto Room No. 12 of the building opposite the shop. It is further statedthat the appellant then opened the lock of the room with the same keys andwent inside the room and two keys of Bajaj Scooter and other articles wererecovered from a cupboard. Thereafter, the said keys were handed over tothe IO who gave the same to PW-547. In order to complete the link, PW-547called Vijay Ramji Wala (PW-454) who is a Supervisor at M/s VasanAutomobiles to check whether the keys were of the same scooter which wasparked by the appellant at Zaveri Bazaar. Thereafter, PW-454 inserted thekeys in all the three locks of the scooter and the same tallied with thelocks. Thus it was proved that the keys recovered at the instance of theappellant belonged to the scooter laden with RDX recovered from ZaveriBazaar.

303) It is also contended on behalf of the appellant (A-44) that thehandwriting in which the booking was made in the hotel was not confirmedduring investigation. We are unable to accept the contention raised sinceon perusal of the entire evidence as produced by the prosecution, it isestablished that the appellant planted the suitcase laden with RDX in RoomNo. 3078 of Hotel Centaur, Juhu. We are satisfied that sufficient evidencehas been brought on record by the prosecution to show that the said roomwas booked by the conspirators in a fake name for which payment was alsodeposited in advance.

304) It is further contended by the appellant that PW-2 (Approver) has notnamed the appellant in his deposition. The prosecution pointed out thatthis does not have any bearing on the prosecution case.

305) We are satisfied that the prosecution has produced sufficientevidence against the appellant (A-44) to bring home the charges framedagainst him. Criminal Appeal Nos. 637-638 of 2008Asgar Yusuf Mukadam (A-10) andShahnawaz Abdul Kadar Qureshi (A-29) Appellant(s) versusThe State of MaharashtraThr. CBI-STF, Bombay Respondent(s)

306) Ms. Farhana Shah, learned counsel appeared for the appellants (A-10and A-29) and Mr. Gopal Subramanium, learned senior counsel, duly assistedby Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learnedcounsel for the respondent.

307) The above-said appeals are directed against the final judgment andorder of conviction and sentence dated 18.09.2006 and 19.07.2007respectively, whereby the appellants (A-10 and A-29) have been sentenced todeath by the Designated Court under TADA for the Bombay Bomb Blast Case,Greater Bombay in B.B.C. No. 1/1993.Charges:

308) A common charge of conspiracy was framed against all the co-conspirators including the appellants (A-10 and A-29). The relevantportion of the said charge is reproduced hereunder: "During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UA.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate Sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosives substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of Indian Penal Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance."In addition to the aforesaid principal charge of conspiracy framed at headfirstly, the appellants (A-10 and A-29) were also charged on other commoncounts which are summarized as under: At head secondly; the appellants (A-10 and A-29), abetted and knowingly and intentionally facilitated the commission of terrorist acts and acts preparatory to terrorist acts by participating in the landing and transportation of arms, ammunition and explosives at Shekadi on 3rd and 7th February, 1993; by participating in the conspiratorial meetings at the residence of Nazir Ahmed Anwar Shaikh (AA) and Baya Moosa Bhiwandiwala (A-96) to chalk out the plans for commission of terrorist acts and by participating in the preparation of vehicle bombs at Al-Hussaini Building and collecting money from the co-accused Mulchand Shah for disbursement to various accused persons who were involved in criminal conspiracy and thereby committed an offence punishable under Section 3(3) of TADA. At head thirdly; the appellants (A-10 and A-29), planted an explosive laden Maruti Van in the compound of Plaza Cinema on 12.03.1993, which exploded causing death of 10 persons, injuring 36 others and further damage to property worth Rs. 87 lakhs and thereby committed offences punishable under Section 3(2)(i) of TADA At head fourthly; the appellants (A-10 and A-29), by causing the aforesaid explosion caused death of 10 persons and thereby committed an offence punishable under Section 302 IPC read with Section 34 IPC. At head fifthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused hurt to 36 persons and thereby committed an offence punishable under Section 307 IPC read with Section 34 IPC. At head sixthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused grievous hurt to 16 persons and thereby committed an offence punishable under Section 326 IPC read with Section 34 IPC. At head seventhly; the appellants (A-10 and A-29), by causing the aforesaid explosion, voluntarily caused hurt to 27 persons and thereby committed an offence punishable under Section 324 IPC read with Section 34 IPC. At head eighthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused damage to properties and thereby having committed an offence punishable under Section 435 IPC read with Section 34 IPC. At head ninthly; the appellants (A-10 and A-29), by causing the aforesaid explosion, caused damage to the property used as dwelling house and for custody of property and thereby having committed an offence punishable under Section 436 IPC read with Section 34 IPC. At head tenthly; the appellants (A-10 and A-29), by causing the aforesaid explosion committed an offence punishable under Section 3 of the Explosive Substances Act, 1908. At head eleventhly; the appellants (A-10 and A-29), by causing the aforesaid explosion, committed an offence punishable under Section 4(b) of the Explosive Substances Act, 1908. At head twelfthly; the appellants (A-10 and A-29) by possessing RDX in the said Maruti Van, which was used for causing the aforesaid explosion, committed an offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. At head thirteenthly; the appellant (A-10), abetted and knowingly facilitated explosions at Hotel Sea Rock, Hotel Centaur and Airport Centaur and thereby committed an offence punishable under Section 3(3) of TADA. At head fourteenthly; the appellant (A-10), travelled in the van MFC- 1972 with the explosive laden suitcases and thereby committed the offences punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.

309) The Designated Judge found the appellants guilty on all the aforesaidcharges. The appellants have been convicted and sentenced for the abovesaid charges as follows:Conviction and Sentence:

(i) The appellants have been sentenced to death under Section 3(3) ofTADA and Section 120-B of IPC read with the offences mentioned in the saidcharge. In addition, the appellants were also ordered to pay a fine of Rs.25,000/- each. (charge firstly)

(ii) The appellants (A-10 and A-29) were convicted and sentenced to RI for9 years and 10 years respectively along with a fine of Rs.50,000/- each, indefault, to further undergo RI for 1 year for commission of offence underSection 3(3) of TADA. (charge secondly)

(iii) The appellants have been sentenced to death, subject to confirmationof the same by this Court, along with a fine of Rs.25,000/- each, for theoffence punishable under Section 3(2)(i) of TADA. (charge thirdly)

(iv) The appellants have been sentenced to death, subject to confirmationof the same by this Court, along with a fine of Rs 25,000/- each, for theoffence punishable under Section 302 of IPC read with Section 34 of IPC.(charge fourthly)

(v) The appellants have been sentenced to RI for life along with a fineof Rs. 50,000/- each, in default, to further undergo RI for 1 year, for theoffence punishable under Section 307 of IPC read with Section 34 of IPC.(charge fifthly)

(vi) The appellants have been sentenced to RI for 10 years along with afine of Rs. 50,000/- each, in default, to further undergo RI for 1 year,for the offence punishable under Section 326 of IPC read with Section 34 ofIPC (charge sixthly)(vii) The appellants have been sentenced to RI for 3 years for the offencepunishable under Section 324 of IPC read with Section 34 IPC. (chargeseventhly)

(viii) The appellants have been sentenced to RI for 7 years along witha fine of Rs. 50,000/- each, in default, to further undergo RI for 1 year,for the offence punishable under Sections 435 and 436 of IPC read withSection 34 IPC. (charges eighthly & ninthly)

(ix) The appellants have been sentenced to RI for 10 years along with afine of Rs. 25,000/- each, in default, to further undergo RI for 6 months,for the offence punishable under Section 3 of the Explosive Substances Act,1908. (charge tenthly)(x) The appellants have been sentenced to RI for 7 years along with afine of Rs 25,000/- each, in default, to further undergo RI for 6 months,for the offence punishable under Section 4(b) of the Explosive SubstancesAct, 1908. (charge eleventhly)

(xi) The appellants have been sentenced to RI for 2 years for the offencepunishable under Section 9B(1)(b) of the Explosives Act, 1884. (chargetwelfthly)

(xii) The appellant (A-10) has been sentenced to RI for 7 years along witha fine of Rs. 25,000/-, in default, to further undergo RI for 6 months, forthe offence punishable under Section 3(3) of TADA. (charge thirteenthly)(xiii) The appellant (A-10) has been sentenced to RI for 5 years alongwith a fine of Rs 25,000/-, in default, to further undergo RI for 6 months,for the offence punishable under Sections 3 and 4 read with Section 6 ofthe Explosive Substances Act, 1908. (charge fourteenthly)

Evidence:

310) The evidence against the appellants (A-10 and A-29) is in the formof:-

(i) their own confessions;

(ii) confessions made by other co-conspirators; (co-accused);

(iii) testimonies of prosecution witnesses; and(iv) documentary evidence.Conspiracy

311) The object behind the conspiracy is the ultimate aim of it and manymeans may be adopted to achieve this ultimate object. The crime ofconspiracy is complete the moment there is an agreement in terms of Section120-A of IPC. However, where the conspiracy has in fact achieved itsobject and resulted in overt acts, all the conspirators in terms of the lawexplained hereinabove would be liable for all the offences committed inpursuance of the conspiracy on the basis of the principle of agency whichis inherent in the agreement which constitutes the crime of conspiracy.Since we have elaborately discussed the issue relating to conspiracy in theearlier part of our judgment, there is no need to refer the same onceagain.Confessional Statements:Confessional Statement of Asgar Yusuf Mukadam (A-10)

312) Confessional statement of A-10 under Section 15 of TADA has beenrecorded on 23.04.1994 (18:00 hrs) by Shri Krishan Lal Bishnoi (PW-193),the then DCP, Zone III, Bombay. A brief summary of the confessionalstatement of A-10 is reproduced hereunder:(i) He was working in the office of Tiger Memon (AA) and his job was to maintain an account of the Hawala money and the money received in the smuggling of gold and silver.

(ii) Due to riots in December, 1992, the office of Tiger Memon (AA) was closed which resumed on 17th December after the riots subsided. Again, on 6th January, 1993, his office was closed as the riots had resurfaced.

(iii) Anwar (AA) and Shafi (AA) always used to be by the side of Tiger Memon (AA). The smuggled silver used to be purchased by Raju Laxmichand Jain @ Raju Kodi (A-26).

(iv) The money received by Tiger Memon (AA) in the above transactions was kept in a 'Hathi account' maintained by Tiger with Mulchand Sampatraj Shah @ Choksi (A-97). Whenever Tiger needed money he would either withdraw it himself or through A-10(v) In January, 1993, A-10 had come to know from Anwar that Tiger was going to smuggle arms and ammunitions, explosive (Kala Sabun) and hand grenades.

(vi) On 10th/11th February, Yakub Abdul Razak Memon (A-1) directed A-10 to meet him in the evening. At about 6:30-7:00 p.m., A-10 visited the residence of A-1 at which time 3 tickets and 3 passports of Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Md. Farooq Mohammed Yusuf Pawale (A-16) and Salim Phansopkar were handed over to him and he was asked to pick them up from Midland Hotel and then drop them at the Airport for their journey to Dubai. Accordingly, A-10 carried out the said instructions and dropped the aforesaid three persons at the Airport after handing over their passports and tickets. The said tickets were for Dubai.

(vii) Next day, A-10 went to the Tiger's residence on his instructions. There he saw Anwar Theba (AA), Shafi (AA), and A-12 standing outside the building. Thereafter, he met Tiger Memon and escorted him to the Airport where Rafiq Madi and Javed Chikna (AA) also arrived. Tiger left for Dubai along with Javed Chikna instructing A-10 to remain in contact with A-1 and in case of requirement of money to A-1 to get the same from A-97. A-10 was also told by Tiger that Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) was to be paid Rs. 5 lacs against the landing and that the same should be paid to him.

(viii) After Tiger's departure, A-10 along with co-accused (A-12) collected Rs. 5 lacs from A-97 and handed over the said amount to A-17 at his residence in Juhu.(ix) Next day, A-10 was instructed over the phone by A-1 to collect Rs. 1 crore from A-97 for him. A-10, with the help of the other co-accused, collected the said amount from A-97 and gave it to A-1.(x) On A-1's instructions, on 17th or 18th February, A-10 along with other co-accused, viz., Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A- 46) picked up Irfan Chougule (AA) from Paramount Hotel and A-29 and his companion from Bandra Reclamation and dropped them at the Airport.

(xi) On 9th March, A-1 directed A-10 to transfer Rs. 25 lacs from Tiger's account to Irani's account and also Rs. 10 lacs to Ohalia's account and the same was done by contacting Choksi (A-97) over the phone.

(xii) In the morning of 10th March, A-10 transferred Rs. 21 lacs from Tiger's account to Irani's account by contacting Choksi (A-97) over the phone on the instructions of A-1.

(xiii) On 11th March, A-10, following the instructions of Tiger, picked up 2 VIP bags, 2 rexine shoulder bags and one briefcase from the garage at Tiger's residence and carried them to Room No. 17 of the Haj Committee House near Crawford Market. Co-accused Parvez (A-12) also accompanied him. The key of the room was given by Tiger Memon.

(xiv) On the instructions of Shafi, A-10 took a new scooter from his residence and left it at the residence of Tiger.

(xv) On 11th March 1993, at about 11 p.m., following the instructions of Tiger, A-10 took two briefcases and went to the residence of Mobina @ Bayamoosa Bhiwandiwala (A-96) in Tiger's Maruti Van bearing No. MFC- 1972, collected Tiger's passport and ticket and reached the Airport along with his relative Md. Shoaib Md. Kasam Ghansar (A-9). There, A-9 checked-in his luggage and got the boarding pass issued. The remaining briefcase, passport and ticket were given to Tiger by A-10 on his arrival at the Airport at about 3.45 am. At the time of departure, Tiger instructed A-10 to follow the instructions of Anwar.

(xvi) On returning to Tiger's residence, A-10 met co-accused Javed Chikna, Shafi, Gani, Parvez, Bashir, Usman and several others. He also saw one new Ambassador Car, one blue coloured Commander Jeep, 2 Maruti-800 cars (one blue and one white), 3 new Bajaj Scooters and 2 old Bajaj Scooters, all of which were parked there laden with black coloured chemical.

(xvii) While returning from the Al-Hussaini building along with A-9 and A-12, A-10 handed over the plastic bags which contained empty boxes of the said chemical to the attending staff of the garbage vehicle at Bandra Reclamation. Then, A-10 collected 3 VIP bags from Tiger's garage and at that time A-9 and A-12 were also with him. They picked up Anwar from his residence in a vehicle. One more boy, namely, Mushtaq (A-44) also came along with Anwar. Anwar placed aluminium like pencils in the chemical contained in all the 3 bags. On Anwar's direction, A-10 took the vehicle to Linking road and dropped Mushtaq (A-44), and also dropped Parvez and Anwar on the way with one VIP bag each and reached the Al-Hussaini Building, Mahim around 11:45-12:00 o' clock at night.

xviii) At the Al-Hussaini Building, Anwar Theba (AA), A-44 and A-12 joined A-10 within an hour. A-10 saw that Anwar picked up aluminum rod like pencils which were lying on the back seat of the vehicle and inserted them one by one in all the five scooters which were parked there.

(xix) Further, A-10 saw that on the instructions of Anwar Theba (AA), A-15, A-12, A-44 and a boy known to Javed Chikna took out the scooters one by one and left the place.

(xx) A-10 also saw that Anwar had individually briefed all of them about parking the said scooters.

(xxi) A-10 was asked by Anwar whether A-9 could drive a scooter and when he answered in the affirmative, Anwar asked A-10 to direct A-9 to park one scooter near Zaveri Bazaar. Following the said instructions, A-9 left with the fifth scooter.

(xxii) A-10 further noticed that at about 1:45 p.m., Usman arrived with a new red coloured Maruti Van in which two VIP bags were kept by the boys of Javed Chikna. A-10 was given the keys of the said vehicle by Anwar while those of Maruti Van bearing MFC-1972 were given by Anwar to Javed Chikna.

(xxiii) A-10 was directed by Anwar and Javed Chikna to park the said Maruti Van near the Plaza Cinema. On refusal by A-10 as he was scared, he was directed to take A-29 along with him. A-10 and A-29 took the red Maruti Van and parked it in the parking lot of the Plaza Cinema at about 2:15 p.m.

(xxiv) After sometime, A-10 heard the sound of a bomb blast while boarding a taxi hired at Dadar T.T. Both A-10 and A-29 arrived at Crawford Market where they both parted ways.

After roaming around for 15-20 minutes in the market, he then took a local train from Churchgate and reached home.Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29) Confessional statement of A-29 under Section 15 of TADA has beenrecorded on 18.05.1993 and 21.05.1993 by Shri Krishan Lal Bishnoi (PW-193),the then DCP, Zone III, Bombay. A brief summary of his confession isreproduced hereunder:(i) A-29 was a resident of Nargis Dutt Nagar Zhopadpatti, Bandra Reclamation Road, opposite the Telephone Exchange Bandra (W), Bombay.(ii) A-29 was acquainted with Javed Chikna and Usman of Mahim since the last 3-4 years.(iii) A-29 participated in the landing of smuggled goods at Shekhadi along with Javed Chikna, Shafi, Riyaz, Munna, Karimulla, Akbar, Anwar, Parvez, Imtiyaz, Yeda Yakoob, Dadabhai and others.(iv) In the evening of 01.02.1993, Javed Chikna asked A-29 to accompany him to bring the smuggled goods of Tiger Bhai. He along with Javed, Usman, Nasir Dhakla and Shafi left in a blue coloured Commander Jeep. On the way, they met Riyaz along with 3 boys, namely, Munna, Karimulla and Akbar who were in a Maruti Van near a Hotel. Shafi and Munna discussed something and the Maruti Van followed their jeep.(v) A-29 was acquainted with Tiger, who met there along with Anwar Theba (AA), A-12 and A-15. Tiger arranged for their stay in the hotel.(vi) A-29 attended a meeting in a hotel on the way to Shekhadi, in which Tiger informed all the persons that he was bringing weapons to take revenge against Hindus.(vii) A-29 actively participated in the unloading, reloading and opening of packets containing smuggled arms and ammunitions and explosives at the Waghani Tower.(viii) A-29 travelled in a jeep containing arms etc. from Waghani Tower to Bombay along with Bashir Ahmed Usman Gani Khairulla (A-13) and Akbar.(ix) A-29, at the instance of Javed, gave his own passport as well as of his friend Abdul Akhtar to Usman.(x) A-29 reached Dubai along with Irfan Chaugule and Abdul Akhtar. They met Gul Mohammed @ Gullu Noor Mohammed Shaikh (A-77) at the Dubai Airport and were received by Ayub Memon. Anwar, Haji Yakoob, Nasir Dhakla, Bashir Muchhad and Mohd. Rafiq had already reached Dubai and met them at the place of their stay. Tiger Memon also met them there.(xi) A-29 attended conspiratorial meetings in Dubai with Tiger Memon and others.(xii) A-29 went to Pakistan from Dubai alongwith Yakub Yeda, Bashir Muchhad, Anwar, Nasir Dhakla, Gul Mohd., Mohammed Rafiq and Irfan Chougule for receiving training in arms and ammunitions. No immigration formalities were observed at the Airport while travelling to Pakistan.(xiii) A-29 received training in handling of revolver, AK-47, AK-56 rifles, hand grenades and making of bombs with black chemical powder (RDX) and pencil bomb timer devices. The training was given by Pakistani Army Officers for about 10 days. Tiger Memon also attended the said training.(xiv) After the training, A-29 returned to Dubai along with others without completing any immigration formalities in the same manner.(xv) In Dubai, at the instance of Tiger Memon, he along with others took an oath by putting their hands on the holy Quran that they would take revenge for the atrocities committed on the community and would indulge in Jehad for Islam and they would not disclose anything about the training to any one and in the event of their arrest they would not disclose anything about others to the police.(xvi) A-29 returned to Bombay from Dubai along with Nasim, Feroz Abdul Akhtar and Mohd. Rafiq.(xvii) On the night of 11.03.1993, A-29 went to the flat of Tiger Memon and received Rs. 5,000/- from him. He also noticed that a number of boys were already present there.(xviii) On 12.03.1993, A-29 was present in the Al-Hussaini building along with Javed Chikna, Bashir Muchhad, Bashir Mahimwala, Usman, Salim Dandekar, Zakir, Abdul Akhtar, Anwar, Shafi and 3-4 unknown boys. In his presence, Usman came there with one bag full of handgrenades. Javed Chikna distributed 3 to 4 hand grenades each to the boys standing there.(xix) Two VIP suitcases were kept by Anwar in a red Maruti Van. A-29 was told by Anwar that the vehicle was filled with bombs and directed him to go along with A-10 and leave the vehicle at Plaza Cinema. Thereafter, he along with A-10 took the vehicle and reached Plaza Cinema at about 1:45 or 2:00 p.m. The security guards at Plaza Cinema asked something to A-10 and he parked the vehicle in one corner and came out from there, took a taxi and came to Bhendi Bazar side.(xx) After the bomb blast, A-29 fled to Rampur and was later arrested by police from Indore.

313) From the above, it can easily be inferred that both the accused,viz., A-10 and A-29, apart from implicating themselves in variousactivities along with other accused persons, corroborate with each other.It is also clear that both the appellants were present at Tiger's residenceand went in a red coloured Maruti Van which was loaded with explosivesubstances and parked it in the compound of the Plaza Cinema which laterexploded killing 10 persons and injuring 36 others.Confessional Statements of co-accused:Confessional Statement of Zakir Hussain Noor Mohd. Shaikh (A-32)

314) Confessional statement of A-32 under Section 15 of TADA has beenrecorded on 16.05.1993 (11:25 hrs) and 19.05.1993 (17:30 hrs) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to theappellants (A-10 and A-29):(i) On 11.02.1993, A-10 went to the Sahar Airport with Zakir Hussain, Saleem Dandekar, Parvez at the instance of Javed Chikna and handed over to them their passports and tickets for Dubai.(ii) A-29 went to Pakistan by a PIA flight for the purpose of training.(iii) A-29 attended conspiratorial meeting on 10.03.1993 at the residence of Mobina (A-96).(iv) A-29 actively participated in the preparation of vehicle bombs in the Al-Hussaini building compound in the intervening night between 11/12.03.1993 by using RDX which had landed at Shekhadi.Confessional Statement of Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46) Confessional statement of A-46 under Section 15 of TADA has beenrecorded on 21.04.1993 (19:00 hrs) and 24.04.1993 (21:25 hrs) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In theabovesaid confessional statement, the following references have been madeto the appellants:(i) A-10 worked in the office of Tiger Memon.(ii) On 12th February, 1993, A-10 accompanied Tiger Memon and other co- accused and went to the airport wherefrom Tiger and other co-accused left for Dubai.(iii) On 18th February, A-10 along with A-46 picked up Irfan Chougule and other co-accused persons and dropped them at the Airport after handing over to them their passports and tickets to Dubai.(iv) On 17th February, 1993, A-29 was dropped by the said accused and Anwar along with other accused persons for their departure to Dubai. Confessional Statement of Shaikh Ali Shaikh Umar (A-57) Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to the appellants: i) A-10 worked in the office of Tiger Memon. ii) A-10 drove the explosives laden red Maruti Van along with A-29 from the Al-Hussaini Building on 12.03.1993. iii) A-29 was present when Anwar Theba (AA) kept two RDX laden suitcases in the dickey of a red coloured Maruti Van and he (A-29) along with A-57 kept two packets of 'Kala Sabun' in the dickey of the said Van. He further stated that the said van was taken by A- 10 and A-29 accompanied by A-57 himself.Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64) Confessional statement of A-64 under Section 15 of TADA has beenrecorded on 22.01.1995 and 24.01.1995 by Shri HC Singh (PW-474), the thenSuperintendent of Police, CBI/SPE/STF, New Delhi. In the abovesaidconfessional statement, the following references have been made to theappellants: i) A-10 was present at the Al-Hussaini Building compound in the intervening night between 11th/12th March, 1993 when RDX was being filled in vehicles. ii) A-29 participated in the first as well as second landing at Shekhadi. iii) A-29 was present in Dubai when A-64 and others went there and attended conspiratorial meetings in Dubai. iv) A-29 went to Pakistan by a PIA flight for training. v) A-29 attended conspiratorial meeting on 10.03.1993 at the residence of Mobina. vi) A-29 actively participated in preparation of vehicle bombs at the Al-Hussaini Building compound in the intervening night between 11/12.03.1993 by using RDX which had landed at Shekhadi.Confessional Statement of Parvez Mohammed Parvez Zulfikar Qureshi (A-100) Confessional statement of A-100 under Section 15 of TADA has beenrecorded on 15.04.1993 (22:30 hrs.) and 17.04.1993 (17:00 hrs.), by SanjayPandey (PW-492), the then DCP, Zone-VIII, Bombay. In the above saidconfessional statement, the following references have been made to theappellants: i) A-29 participated in the training of fire arms and ammunitions at Islamabad, Pakistan along with his associates during February, 1993. ii) A-29 was present at the residence of Tiger Memon in the intervening night between 11/12.03.1993 along with other co- accused.Confessional Statement of Mohammed Shoaib Mohammed Kasam Ghansar (A-9) Confessional statement of A-9 under Section 15 of TADA has beenrecorded on 19.04.1993 (13:10 hrs.) and 22.04.1993 (00:30 hrs.) by ShriPrem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. In the abovesaid confessional statement, the following references have been made to theappellant (A-10): (i) A-9 and A-10 are both from the same village, i.e. Karda in District Ratnagiri. (ii) A-9's elder sister is married to A-10's elder brother, Anwar. (iii) A-10 told him that he works for Tiger and does the business of Hawala and smuggling of gold and silver. (iv) A-9 obtained the boarding pass used by Tiger on 11.03.1993 at the request of A-10. (v) A-10 was at the Airport to see off Tiger Memon before the blasts and he arranged for his boarding pass. (vi) A-10 and A-9 came back to the Al-Hussaini building after dropping Tiger on 11.03.1993. At that time, co-accused persons were filling chemicals in the vehicles as told to him (A-9) by A- 10. (vii) A-10 was driving the Maruti Van on 12.03.1993 and he dropped the co-accused sitting in the Van at a taxi stand to go to Hotel Sea- Rock, Bandra and Centaur Hotel near Airport. (viii) A-10 gave a scooter to A-9 for parking the same at Zaveri Bazaar intersection. ix) A-9 met A-10 on 13.03.1993 after the blasts.Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12) Confessional statement of A-12 under Section 15 of TADA has beenrecorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.) by PremKrishna Jain (PW-189), the then DCP, Zone X, Bombay. In the above saidconfessional statement, the following references have been made with regardto A-10: i) A-10 was working in the office of Tiger Memon. ii) A-12 was also working in Tiger's office along with A-10 and other associates to help him in Hawala transactions as well as in the landing of smuggled silver. iii) On 15th/16th February, 1993, A-10 along with A-12 went to the residence of Tiger where they along with others were paid Rs.10,000/- by Shafi. iv) On 11th March, 1993, at noon, A-10 and A-12 were given two small suitcases, two hand bags and one big suitcase by Tiger Memon which were taken by them to room No.17 of Musafirkhana in which one bag was containing AK-56 rifles while the other was containing hand grenades. v) On the night of 11th March, A-10 was assisting Gani and others in the filling of black soap into the secret cavities of the vehicles. vi) At the time of leaving for home, A-10 along with A-12 and A-9 were given 5 plastic bags in which the chemicals were kept which were thrown by them into the wastage van of BMC. vii) A-10 along with A-12 and A-9 carried three suitcases in a van to the residence of Anwar. From there, Anwar and A-44 joined them. Anwar inserted three timer pencils in each of the said suitcases. viii) After the blast, on 13.03.1993, A-10 met A-12 and A-9 and received the keys of the scooter which was planted by A-12 at Katha Bazaar.Confessional Statement of Imtiaz Yunusmiyan Ghavate (A-15) Confessional statement of A-15 under Section 15 of TADA has beenrecorded on 07.05.1993 (12:30 hrs.) and 09.05.1993 (13:30 hrs.) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made withregard to A-10: i) While working for Tiger, A-15 delivered money to various people on the instructions of A-10. ii) A-10 was managing the delivery of Hawala money in India. iii) Tiger with A-10 and other co-accused persons was also involved in selling smuggled silver. iv) A-10 was seated in the Maruti Van No. MFC 1972 in the morning of 12.03.1993 along with A-15.Confessional Statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) Confessional statement of A-17 under Section 15 of TADA has beenrecorded on 18.04.1993 (00:15 hrs.) and 20.04.1993 (02:50 hrs.) by PremKrishna Jain (PW-189), the then DCP, Zone X, Bombay. In the above saidconfessional statement, a reference has been made to A-10 that he gave Rs.5 lakhs to A-17 for the landing work.Confessional Statement of Mohd. Mushtaq Musa Tarani (A-44) Confessional statement of A-44 under Section 15 of TADA has beenrecorded on 26.05.1993 (16:55 hrs.) and 22.05.1993 (10:00 hrs.) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In theabovesaid confessional statement, the following references have been madewith regard to A-10: i) On 12.03.1993, A-10 was driving a maroon coloured car which was carrying A-44 and other accused involved in planting bombs. ii) A-44 again met A-10 around noon on 12.03.1993 at Tiger's house.Confessional Statement of Baya Musa Bhiwandiwala @ Mobina (A-96) Confessional statement of A-96 under Section 15 of TADA has beenrecorded on 30.04.1993 (18:00 hrs.) and 02.05.1993 (18:00 hrs.) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, the following references have been made to A-10: i) A-10 worked for Tiger. ii) A-10 took the tickets for Tiger to Dubai from Mobina's residence on 11.03.1993.Confessional Statement of Mulchand Sampatraj Shah @ Choksi (A-97) Confessional statement of A-97 has been recorded on 14.05.1993 (20:55hrs.) and 18.05.1993 (16:15 hrs.) by Vinod Balwant Lokhande (PW-183), thethen DCP, Airport Zone. In the abovesaid confessional statement, thefollowing references have been made to A-10: i) A-10 @ Munna opened Tiger Memon's Hathi account with A-97. ii) A-10 (Munna) had been routinely operating Tiger Memon's Hathi Account with A-97. iii) All dealings with A-10 were done on the instructions of Tiger Memon.Confessional Statement of Mohd. Farooq Mohd. Yusuf Pawale (A-16) Confessional statement of A-16 under Section 15 of TADA has beenrecorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.) by SanjayPandey (PW-492), the then DCP, Zone-VIII, Bombay. In the above saidconfessional statement, the following references have been made to A-29: i) On 08.02.1993, A-16 along with others (including A-29) went to the spot of landing and assisted Tiger in landing of smuggled items containing 84 bags and in their transport to Bombay. ii) A-29 attended the training of dismantling and handling of fire arms and bombs including chemical bombs as well as hand grenades in Pakistan and, thereafter, went to Dubai along with others.Confessional Statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23) Confessional statement of A-23 under Section 15 of TADA has beenrecorded on 20.05.1993 (10:00 hrs.) and 22.05.1993 (10:00 hrs.) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaid confessional statement, a reference has been made to A-29 that he waspresent at Tiger's house on the day of the blast.Confessional Statement of Munna @ Mohammed Ali Khan @ Manojkumar BhanwarLal Gupta (A-24) Confessional statement of A-24 has been recorded on 30.04.1993 (16:15hrs.) and 09.05.1993 (19:00 hrs.) by Sanjay Pandey (PW-492), the then DCP,Zone III, Bombay. In the above said confessional statement, a referencehas been made to A-29. It was disclosed that A-29 actively participated inthe landing and transportation of smuggled goods from Shekhadi coast toWaghani Tower where the packets containing arms and ammunitions andexplosives were opened under the supervision of Tiger Memon.Confessional Statement of Abdul Khan @ Yakub Khan Akhtar Khan (A-36) Confessional statement of A-36 under Section 15 of TADA has been recordedon 19.05.1993 (17:40 hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan LalBishnoi (PW-193), the then DCP, Zone III, Bombay. In the above saidconfessional statement, the following references have been made to A-29: i) A-36 knew A-29 for many years. ii) A-29 took A-36 to Dubai for training. iii) Tiger told A-29 in Dubai that his ticket to Bombay was ready and that he should leave. iv) A-29 loaded RDX in the vehicles on 11.03.1993.Confessional Statement of Feroz @ Akram Amani Malik (A-39) Confessional statement of A-39 under Section 15 of TADA has been recordedon 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar(PW-185), the then DCP, Zone V, Bombay. In the above said confessionalstatement, A-39 refers to A-29 that he received training in Pakistan.Confessional Statement of Nasim Ashraf Shaikh Ali Barmare (A-49) Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (9:30 hrs) and 18.05.1993 by Shri Krishna Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. In the above said confessional statement, the following references have been made to A-29: i) A-29 joined Nasim Barmare in Pakistan and received training in arms and ammunitions. ii) In Dubai, they all were given inflammatory speech by Tiger Memon to take revenge against the atrocities upon the Muslims.(iii) A-29 left Dubai along with other co-accused.Confessional Statement of Salim Rahim Shaikh (A-52) Confessional statement of A-52 under Section 15 of TADA has beenrecorded on 15.04.1993 and 18.04.1993 by Mr. P.D. Pawar (PW-185), the thenDCP, Zone V, Bombay. In the above said confessional statement, thefollowing references have been made to A-29: i) A-29 was one of the nine persons who underwent training in Pakistan. They were given training in use of hand-grenades, RDX and detonators. ii) On 06.03.1993, after coming to Bombay, all the persons (including A- 29) underwent training in Pakistan and met at the residence of Tiger Memon in Bandra to discuss about the bomb blasts. iii) Tiger gave Rs. 5,000/- to each person in another meeting at his flat next day where the persons who had gone for training were also present. iv) On the night of 11.03.1993, A-52 saw several persons at Tiger's flat at the Al-Hussaini building including A-29.Confessional Statement of Gul Mohd. @ Gullu Noor Mohd. Shaikh (A-77) Confessional statement of A-77 under Section 15 of TADA has been recordedon 17.04.1993 (14:10 hrs.) and 19.04.1993 (18:00 hrs.) by Shri Krishan LalBishnoi (PW-193), the then DCP, Zone III, Bombay. In the abovesaidconfessional statement, the following references have been made to A-29: i) A-77 met A-29 in a Hotel room in Dubai. ii) A-29 came to Pakistan with them for training.Confessional Statement of Mohd. Rafiq Usman Shaikh (A-94) Confessional statement of A-94 under Section 15 of TADA has beenrecorded on 14.05.1993 (18:30 hrs.) and 16.05.1993 by Shri Krishan LalBishnoi (PW-193), the then DCP, Zone III, Bombay. In the above saidconfessional statement, the following references have been made to A-29: i) A-29 was in Dubai with other co-accused. ii) Tiger gave tickets to A-29 to fly to Bombay from Dubai.Confessional Statement of Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh A-98 Confessional statement under Section 15 of TADA has been recorded on17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan LalBishnoi (PW-193), the then DCP, Zone III, Bombay. In the above saidconfessional statement, the following references have been made to A-29: i) A-29 joined him for training in Pakistan. ii) On 01.03.1993, after others also reached Dubai, the co-accused (A- 29), who had taken training in Pakistan at the instance of Tiger, took oath after placing his hands on holy Quran. He also heard about the speech given by Tiger regarding the riots in Bombay.

315) A perusal of all the aforesaid confessional statements substantiatethe fact that the appellants, viz., A-10 and A-29 were fully aware of theconspiracy and willfully participated in performing the conspiratorialacts. Further, the confessions of co-accused, viz., A-32, A-46, A-57, A-64, A-100, A-9, A-12, A-15, A-17, A-44, A-96, A-97, A-16, A-23, A-24, A-36,A-39, A-49, A-52, A-77, A-94 and A-98 corroborate the confessionalstatements of the appellants (A-10 and A-29) in material particulars.

316) It is also clear that the confessions made by the appellants as wellas by co-accused are truthful and voluntary and were made without anycoercion. All safeguards enumerated under Section 15 of TADA and the rulesframed thereunder have been duly complied with while recording theconfessions of the appellants.Retraction Statements:

317) Ms. Farhana Shah, learned counsel for the appellants contended thatthe confessional statements of the appellants and the confessionalstatements of the co-accused persons relied upon by the prosecution againstthem were retracted subsequently, and therefore, it is not safe to baseconviction on the said confessional statements under Section 15 of TADA.In reply to the above contention, learned senior counsel for the CBIsubmitted that where the original confession was truthful and voluntary andhas been recorded after strictly following the prescribed procedure, thesubsequent retraction and denial of such confession under Section 313statement by the accused is nothing but is a result of an afterthought.Since the very same objection had already been considered in the earlierpart of our judgment, we are not inclined to repeat the same once again.The said conclusion is applicable to these appeals also.Deposition of Prosecution Witnesses:Evidence of Mohammed Usman Jan Khan (PW-2) (Approver)

318) PW-2, in his deposition, implicates the appellants and withstood thelengthy cross examination. He deposed as follows: i) PW-2 identified A-10 and A-29. ii) The appellants (A-10 and A-29) worked with him in the conspiracy which led to the blasts in Bombay and they were involved in planning, conspiracy, training, landing as well as in blasting of bombs. iii) A-29 participated in the landing of arms and ammunitions at Shekhadi. iv) On 11.02.1993, when he went to meet Tiger Memon at Al-Hussaini building, A-10 took him to the Tiger's flat at 5th floor. v) A-29 participated in the training in Pakistan. vi) When he (PW-2) returned after surveying the Chembur Refinery on 11.03.1993, he noticed several boys with Tiger Memon including the appellants at that time.The said witness duly corroborates the confessions of the co-accused andthe confessions of the appellants themselves. In the present case, thedeposition of PW-2 has also been corroborated in material particulars. Ithas been contended by the counsel for the appellants that there arecontradictions in the statement of PW-2 in respect of the presence of A-10as to whether he was standing downstairs or in the hall of the 5th floor.On a perusal of the entire evidence of PW-2, it can be inferred that whenPW-2 came to the Al-Hussaini building, Tiger Memon was in the flat whichwas on the fifth floor along with various accused including the appellants.Thereafter, PW-2 described about a meeting where Tiger explained themodalities of the blasts and he came down using the stairs when A-10 wasstanding downstairs.

319) It is further contended by the counsel for the appellants that thereare certain contradictions regarding the air tickets given to A-10 andregarding introducing A-32 to A-10 at Hotel Midland with respect to Exhibit25. It is relevant to mention that Exhibit 25 was not the document whichwas pressed into service by the prosecution. PW-2 proposed to make full andtrue disclosure of all the facts and on the said promise he was grantedpardon. Both the statement and the deposition were made under differentstatutes under the law and are not comparable with each other. The approverhas withstood the rigorous cross examination and the prosecution has alsocorroborated the deposition of the approver by adequate evidence whichfurther affords credibility to his depositionEvidence of Sanjay Salunke (PW-3) and Sanjay Mangesh Salaskar (PW-4) PWs-3 and 4, who were the Security Guards on duty at Plaza Cinema atthe relevant time have also witnessed the incident and have deposed asfollows:

i) On 12.03.1993, at about 2.15 p.m., one Red coloured Maruti Van had been inside Plaza Cinema Theatre compound from the main gate and was parked in scooter parking area.

ii) There was an altercation between PW-4 and the driver of the said van regarding parking of the van in the scooter parking area.

iii) Seeing this, PW-3, alongwith two other security guards, approached towards them and explained the correct parking area for the same. Thereafter, the persons in the Maruti Van parked it in the car parking area.

iv) After about 45 minutes to 1 hour, there was a big explosion in the car parking area. The whole area was shaken and PW-3 noticed that the said red coloured Maruti Van parked there was totally damaged. The other motor vehicles in the said area also caught fire and several persons were injured and a situation of panic emerged among the persons who had come to the theater.

v) Other Security Guards, viz., Mr. Singh and Mr. Manchekar were also injured and, subsequently, Mr. Singh died due to the injuries suffered by him in the incident.

vi) PW-3 had taken his colleague Security Guard PW-4, who suffered a back injury and two three more injured persons to Sion Hospital and the said persons were admitted in the hospital after examination.

vii) On the way to Sion Hospital, PW-4 told PW-3 that the persons with whom they had altercation and who had come in a red coloured Maruti Van were responsible for the said incident as some thing had gone wrong in the said red coloured Maruti Van.

viii) PW-3 and PW-4 identified A-10 in the court as the driver of the said red coloured Maruti van.

ix) PW-3 and PW-4 identified A-29 as the person who was sitting by the side of the driver i.e., A-10.

320) Ms. Farhana Shah, learned counsel for the appellants contended thatPW-3 was an employee of one Hindustan Security Force and not of PlazaCinema as stated by him in his deposition. Further, it was contended onbehalf of the appellants that the said witness had not specificallydescribed/stated about the height of A-10 and thus it is a materialomission. It was also contended that his 'general' description of the kurta-pyjama worn by the accused at the time of the said incident and notexplaining the details thereof is also a material omission. Thus, it wasargued that in view thereof, the identification of A-10 by PW-3 isdoubtful.

321) PW-3 was an employee of Hindustan Security Force which was engagedfor providing security guards to Plaza Cinema and he was 'deputed' and wason 'duty' as a Security Guard at Plaza Cinema. Further, he has never statedin his deposition that he was an 'employee of Plaza Cinema'. A-10 has beencorrectly identified by PW-3 in the court at the time of his deposition andalso in the test identification parades dated 21.03.1993 and 25.04.1993,conducted by SEM, PW-462 and in parade dated 14.05.1993 conducted by SEM PW-469. Thus, the identification has been duly established by the eyewitnesses.

322) Further, the depositions of PWs-3 and 4 sufficiently prove theincident and involvement of the appellants. The said depositions alsoprovide corroboration with the above said confessional statements of A-10and A-29 that they parked the Maruti van laden with explosives in PlazaCinema compound which caused the said explosions causing death of 10persons and injuries to 36 people.Other Witnesses:

323) Kashiram Kubal (PW-449), Piyara Singh (PW-447), Mohan Mayekar (PW-455), Dattatreya Pawar (PW-448) and Ramesh Lad (PW-450) proved the injuriessustained by them during the explosion. Dr. Rajaram Bhalerao (PW-646), adoctor at Hinduja Hospital who issued certificates regarding treatment ofPW-449 and PW-407 sufficiently corroborates the fact of injury suffered bythe victims. Vinayak A. Mayekar (PW-456), who was the brother of thedeceased Vishram Mayekar, who died due to head and chest injuries sustainedin the explosion at Plaza Theatre proved the death of the said victim andalso deposed about the charge being taken by him of the dead body on13.03.1993 from KEM Hospital. Ramesh Barasingh (PW-457), son of thedeceased Kisan Barasingh, who died due to scalp injury sustained in theexplosion at Plaza Theatre proved the death of the said victim and alsodeposed about the charge being taken by him of the dead body on 13.03.1993from KEM Hospital. This fact is further corroborated by the deposition ofDr. Walter Vaz (PW-476), who certified the deaths and its cause of theabove said victims.

324) Ramesh Naik (PW-305), the Supervisor of Plaza Cine House deposedregarding hearing a loud explosion on 12.03.1993, at about 03:14 p.m., andsaw that the cars parked in the parking area caught fire and a red MarutiVan was completely destroyed, a big crater was formed, compound wall wascollapsed, watchman and other staff were injured and further inspected andascertained the damage of Rs. 50 lakhs and lodged a complaint with PW-551of Mahim Police Station. Further, he visited Sion and KEM Hospital andfound that watchman Singh and project operators Shinde and Vasta hadsuccumbed to their injuries.

325) Ramesh Tulsiram Kolhe (PW-551), an Officer from Mahim Police Stationwho recorded the complaint of the above, i.e., Ramesh Naik (PW-305) provedthe said document. He further deposed that on 13.03.1993, he registeredaccidental death of Shinde, Vasta, Nissar, Siddiqui and sent a letter toCoroner for effecting post-mortem etc. under panchnama Exh. 1894 and tookcharge of brass articles penetrated in the body of PW-449 brought fromHinduja Hospital by PC Kamble. PW-551 also deposed about the AccidentalDeath Reports prepared by him in respect of the deceased persons.

326) Nivrutti S. Kokare (PW-557), was the officer who inspected the sceneof offence and prepared the inspection panchnama in the presence ofwitnesses vide Panchnama Exh. 1918 regarding the crater being formed in thearea of car parking, collapse of northern compound wall, burnt vehiclesetc. He also took charge of 4 to 5 broken parts of the said red Maruti Vanand the number plate bearing No. MAM 962 amongst other things.

327) It is contended on behalf of the appellants with respect to thedeposition of PW-305 that on 12.03.1993, despite arrival of so manypolicemen at the place of explosion, there was no Panchnama prepared on thesaid date and it came to be prepared only the next day. Further, withrespect to the deposition of Narsingh Sherkhane (PW-556), it is contendedthat the said API of the Bombay Police prepared the Panchnama only on14.03.1993 whereas the offence was committed on 12.03.1993, and therefore,there has been delay in recording Panchnama which is a serious lapse in theprocedure. It is brought to our notice that the Police had cordoned off andsealed the said area so as to ensure that the scene of crime was nottampered with. Moreover, after several explosions in the city, there was astate of panic and law and order situation which the Police were requiredto handle as a priority.

328) It is further contended by Ms. Farhana Shah on behalf of theappellants that no efforts were made by the prosecution or PW-557 to tracethe ownership of the said Maruti Van. It is further contended with respectto PW-557 that, on inspection of the scene of offence and after effectingthe seizure of articles therefrom, he did not mention the articles seizedand certain details while drawing up the panchnama and thus his depositioncannot be relied upon. A perusal of the deposition of PW-557 reveals thathe has duly inspected the scene of crime and carefully drawn up thepanchnama (Exh. 1918) mentioning all the details. He has mentioned thedetails of all the articles seized by him therein, more particularly, thebroken parts of the said Maruti van and the number plate bearing no. MFC1972. Further, it is amply clear from the depositions of PWs-3 and 4 thatthe said Maruti van came inside the Plaza Cinema, they having seen theaccused in the said van and it has been significantly proved that theappellants were inside the van and that it is the said van which caused theexplosion. It has already been proved that the two Maruti Vans, one ofblue and the other of red colour were purchased by Mohd. Shafi Jariwala(AA) from Suleman Lakdawala (PW-365) and Kailash Baheti (PW-342). Further,the number of blue Maruti Van is MH-13-D-385 but the number of red colouredMaruti was not known as it was not registered. The delivery of both thesevans was given by PW-366 which was supplied by PW-365, who in turndelivered these vans to Shafi Jariwala.

329) It is contended on behalf of the appellants that no evidence has beenbrought on record to corroborate that the appellants had any drivinglicence. To this, prosecution pointed out that A-10 has been duly andproperly identified as the driver of the said Maruti van by the eye-witnesses, viz., PWs-3 and 4. It has also been revealed by him in his ownconfessional statement as well as in the confessional statements of otherco-accused that he drove the car to Plaza Cinema. Notwithstanding theabsence of driving licence, it has been established that A-10 was drivingthe car.

330) Chordekar (PW-361) has proved the damage caused to the MTNL (publicproperty). FSL Reports Exhs. 1952 to 1955 show the traces of RDXexplosives. Rajkumar Nagdawne (PW-563) vide letter had sent the articlescollected from the scene of offence and other places to FSL for opinion.

331) In view of the above said confessional statements of the appellants(A-10 and A-29), the confessional statements of the other co-accusedpersons, deposition of prosecution witnesses, as also the eye-witnesses,viz., PWs-3 and 4 along with other witnesses duly examined by theprosecution, the charges framed against the appellants have been dulyproved. Criminal Appeal No.365 of 2008Mohammed Shoeb MohammedKasam Ghansar (A-9) Appellant(s) vsThe State of Maharashtra,Through STF,CBI Mumbai . Respondent(s) **********

332) Ms. Farhana Shah, learned counsel appeared for the appellant (A-9) andMr. Gopal Subramanium, learned senior counsel, duly assisted by Mr. MukulGupta, learned senior counsel and Mr. Satyakam, learned counsel for therespondent.

333) The present appeal is directed against the final judgment and orderof conviction and sentence dated 14.09.2006 and 19.07.2007 respectively,whereby the appellant has been convicted and sentenced to death by theDesignated Court under TADA for the Bombay Bomb Blasts Case, Greater Bombayin B.B.C. No. 1/1993.Charges:

334) A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-9). The relevant portion of thecharge is reproduced hereunder:- "During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UA.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate Sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosives substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts.

To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of Indian Penal Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance."In addition to the above said charge of conspiracy, the appellant (A-9) hasalso been charged for commission of the following offences:

At head secondly; the appellant (A-9) committed an offence punishable under Section 3(3) of TADA by doing the following overt acts:i) Participated in landing of arms and explosives at Shekhadi Coast, Raigad District along with co-conspirators on the 3rd and 7th of February, 1993;ii) facilitated the escape of Tiger Memon (AA) by fetching his ticket and passport from the house of Mobina (A-96) and by obtaining his boarding pass on the morning of 12.03.1993, at Sahar Airport; andiii) actively participated in preparation of vehicle bombs in the night intervening 11th/12th March, 1993 at Al-Hussaini Building. At head thirdly; on 12.03.1993, the appellant (A-9), parked a scooter laden with explosives and fitted with a time device detonator in Zaveri Bazaar, which exploded killing 17 persons, injuring 57 persons and causing loss of property to the tune of Rs.1.20 crores and thereby committed an offence under Section 3(2)(i)(ii) of TADA. At head fourthly; for the aforesaid act mentioned in charge thirdly, the appellant (A-9) committed an offence punishable under Section 302 IPC. At head fifthly; for the aforesaid act mentioned in charge thirdly, the appellant (A-9), committed an offence punishable under Section 307 IPC by injuring 57 persons.

At head sixthly; the appellant (A-9), by causing the aforesaid explosion which resulted in grievous hurt to 9 persons committed an offence punishable under Section 326 IPC. At head seventhly; the appellant (A-9), by causing the aforesaid explosion and voluntarily causing hurt to 48 persons committed an offence punishable under Section 324 IPC. At head eighthly; the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs. 1.2 crores committed an offence punishable under Section 435 IPC. At head ninthly; the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs. 1.2 crores committed an offence punishable under Section 436 IPC. At head tenthly; the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 3 of the Explosive Substances Act, 1908. At head eleventhly; the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 4(b) of the Explosive Substances Act, 1908. At head twelfthly; the appellant (A-9), in pursuance of the conspiracy and in contravention of rules made under Section 5 of the Explosives Act,1884 without licence having possessed and used RDX, committed an offence punishable under Section 9-B (1)(b) of the said Act. At head thirteenthly; the appellant (A-9), in pursuance of the said conspiracy, on 12.03.1993, in the afternoon, having abetted and knowingly facilitated terrorist act i.e. the explosion at Centaur Hotel Juhu, Centaur Hotel at Airport and Hotel Sea Rock at Bandra committed by the co-conspirator i.e. Mohammed Mushtaq Moosa Tarani (A- 44), Parvez Nazir Ahmed Shaikh (A-12) and Anwar Theba (AA) by planting explosive laden suitcases in the rooms of the said hotels respectively and yourself by accompanying them and A-10 in a Maruti Van bearing No. MFC-1972 on their way for planting the said suitcases in the said hotels with intent to commit the terrorist act, committed an offence punishable under Section 3(3) of TADA. At head fourteenthly; the appellant (A-9), for the aforesaid act mentioned in charge thirteenthly, committed an offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.

335) The Designated Judge found the appellant (A-9) guilty on all theaforesaid charges except the charge of participating in landing. Theappellant (A-9) has been convicted and sentenced for the above said chargesas follows:Conviction and Sentence:

(i) The appellant was found guilty for the offence of conspiracy for commission of such acts as found proved from charge firstly framed at trial and punishable under Section 3(3) of TADA and Section 120-B of IPC read with the offences mentioned in the said charge and on the said count the appellant has been sentenced to suffer RI for life along with a fine of Rs.25,000/-.(charge firstly)

(ii) The appellant has been sentenced to RI for 5 years along with a fine of Rs. 25,000/- for the offence punishable under Section 3(3) of TADA. (charge secondly)

(iii) The appellant has been sentenced to death along with a fine of Rs.25,000/- for the offence punishable under Section 3(2)(i) of TADA. (charge thirdly)(iv) The appellant has been sentenced to death along with a fine of Rs 25,000/- for the offence punishable under Section 302 IPC. (charge fourthly)

(v) The appellant has been sentenced to RI for life along with a fine of Rs. 50,000/- for the offence punishable under Section 307 IPC. (charge fifthly)

(vi) The appellant has been sentenced to RI for 10 years along with a fine of Rs. 50,000/- for the offence punishable under Section 326 IPC. (charge sixthly)

(vii) The appellant has been sentenced to RI for 3 years for the offence punishable under Section 324 IPC. (charge seventhly)

(viii) The appellant has been sentenced to RI for 7 years along with a fine of Rs. 50,000/- for the offence punishable under Section 435 IPC. (charge eighthly)

(ix) The appellant has been sentenced to RI for 7 years along with a fine of Rs. 50,000/- for the offence punishable under Section 436 IPC. (charge ninthly)

(x) The appellant has been sentenced to RI for 10 years along with a fine of Rs. 25,000/- for the offence punishable under Section 3 of the Explosive Substances Act, 1908. (charge tenthly)

(xi) The appellant has been sentenced to RI for 7 years along with a fine of Rs 25,000/- for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908. (charge eleventhly)

(xii) The appellant has been sentenced to RI for 2 years for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. (charge twelfthly)

(xiii) The appellant has been sentenced to RI for 7 years along with a fine of Rs. 25,000/- for the offence punishable under Section 3(3) of TADA. (charge thirteenthly)

(xiv) The appellant has been sentenced to RI for 5 years along with a fine of Rs 25,000/- for the offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fourteenthly) Evidence:

336) The evidence against the appellant is in the form of:-(i) his own confession;(ii) confessions made by other co-conspirators; (co-accused);(iii) testimonies of prosecution witnesses; and(iv) documentary evidence on record.Conspiracy

337) As mentioned above, a common charge of conspiracy has been framedagainst all the accused persons and in order to bring home the charge, theprosecution need not necessarily prove that the perpetrators expresslyagreed to do or cause to be done the illegal act, the agreement may beproved by necessary implication. Since we have elaborately discussed theissue relating to conspiracy in the earlier part of our judgment, there isno need to refer to the same once again.Confessional Statement of the appellant - Mohammed Shoeb Mohammed KasamGhansar (A-9)

338) Confessional statement of the appellant (A-9) under Section 15 ofTADA has been recorded on 19.04.1993 and 22.04.1993, by Shri P.K. Jain, thethen DCP, Zone X, Bombay. The following facts emerge from the saidconfessional statement:

(i) In the night of 11.03.1993, on being asked by Asgar Yusuf Mukadam (A- 10), the appellant went to Sahar Airport along with him and got a boarding card issued for Tiger Memon.

(ii) The appellant (A-9) asked A-10 that "what to do if anyone catches me", at this, A-10 answered to tell that "it (boarding card) belongs to my brother".

(iii) Tiger Memon left India in the morning of 12.03.1993, at 4 a.m., and the appellant (A-9) and A-10 saw him leaving the Airport for Dubai.

(iv) The appellant (A-9) was present at the Al-Hussaini building on the night of 11.03.1993 after dropping Tiger Memon at the Airport, and was also present when RDX was being filled into the vehicles by other co- accused persons including Abdul Gani Ismail Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12), Mohd. Shafi (AA) and Anwar Theba (AA).

(v) The appellant (A-9), along with A-10 and A-12, disposed of six big plastic bags in a wastage van of BMC at Bandra Reclamation Road. These bags were handed over to them by Anwar Theba (AA) at the Al- Hussaini Building.

(vi) On 12.03.1993, the appellant (A-9), accompanied A-10 and went to the residence of A-12 in order to pick him up and, thereafter, they went to the Al-Hussaini Building in a Maruti Van.

(vii) 3 VIP Bags were collected by A-12 and A-10 from the garage at the Al- Hussaini building and then they along with the appellant (A-9) went to the residence of Anwar Theba (AA) to pick him up.

(viii) On 12.03.1993, the appellant (A-9) was present in the Van at the time of insertion of timer pencil detonators in the black chemical (RDX) kept in the 3 VIP suit cases by Anwar Theba (AA).

(ix) On 12.03.1993, the appellant (A-9) was also present with A-10 in the van used for dropping the co-accused, namely, A-12, A-44 and Anwar Theba (AA) who went for planting bombs in Hotel Sea Rock, Hotel Centaur Juhu and Hotel Centaur Airport respectively.

(x) The appellant (A-9), thereafter, returned to the Al-Hussaini building with A-10. A-12, A-44 and Anwar Theba (AA) also returned to the said building after planting the bombs at the targets which exploded later. He noticed that three new scooters were parked at Al-Hussaini compound. He was present when Mustaq (A-44) left with one of the new scooters.

(xi) On the very same day, i.e., 12.03.1993, on the instruction of A-10, the appellant (A-9) planted a scooter laden with RDX in front of a jewellery shop at Zaveri Bazaar as per the instructions of A-10. Anwar Theba (AA) had inserted timer pencil detonators in the black chemical (RDX) filled in dicky of the scooter. The appellant (A-9) had the knowledge that the scooter was carrying bomb as told to him by A-10.

(xii) After planting the scooter laden with RDX, the appellant (A-9) went to a Masjid and begged for forgiveness for his sins. He also threw the keys of the scooter in a drain near Bus Stop No. 4 at Mohd. Ali Road.

339) From a perusal of the entire confession, it is established that theappellant was fully aware and conscious of the overt acts committed by him. The above stated facts are established from the admission of his guiltthat after planting the bomb at Zaveri Bazaar, he begged for forgivenessfor his sins from 'Allah' (the Almighty God) and that even at the time ofgetting the boarding pass of Tiger Memon, he was conscious and cautiousthat he was facilitating, aiding and abetting a terrorist in fleeing fromthe country, and accordingly, the appellant enquired from A-10 at theAirport as to 'what will happen if anyone catches him'. The guilt of theappellant (A-9) is proved from his confession and it is established that heknew that his actions were wrong and illegal. The appellant consciouslyjoined the conspiracy and committed overt acts in furtherance of theconspiracy. He was well aware of the consequences of his actions and theactions of other co-conspirators.Confessional Statements of co-accused:

340) Apart from his own confession, the involvement of the appellant (A-9)has also been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has been considered by us in the earlier part of our discussion.The said confessions insofar as they refer to the appellant are summarizedhereinbelow:Confessional Statement of Asgar Yusuf Mukadam (A-10) Confessional statement of A-10 under Section 15 of TADA has beenrecorded on 20.04.1993 and 23.04.1993 (18:00 hrs.), by Shri K.L. Bishnoi,the then DCP, Zone III, Bombay. The following facts emerge from theabovesaid confession with regard to the appellant (A-9):(i) In the night of 11.03.1993, the appellant booked the luggage of Tiger Memon and obtained his boarding card at the Airport for his departure to Dubai.(ii) The appellant (A-9), accompanied by A-10 and A-12, disposed of the plastic bags in a wastage van of BMC which contained the empty boxes of explosives.

(iii) The appellant (A-9), accompanied by A-10 and A-12, picked up three VIP bags loaded with explosives from the garage at the Al-Hussaini building and took them to the residence of Anwar Theba (AA) where Anwar fitted the detonators in these suitcases and thereafter, the bags were taken away by A-12, A-44 and Anwar Theba (AA) to Hotel Sea Rock, Hotel Centaur Juhu and Hotel Centaur Airport respectively.(iv) The appellant (A-9), on being asked by A-10, drove the scooter laden with explosives on the instructions of Anwar Theba (AA) and parked it at a crowded place in Zaveri Bazaar which later exploded killing 17 persons and injuring 57 others.Confessional Statement of Abdul Gani Ismail Turk (A-11) Confessional statement of A-11 under Section 15 of TADA has beenrecorded on 15.04.1993 and 18.04.1993 by Shri P.K. Jain, the then DCP, ZoneIII, Bombay. A-11, in his confession, has stated that the appellant (A-9)was present at Al-Hussaini Building in the night of 11.03.1993 along withother co-accused, namely, Bashir Ahmed Usman Gani Khairulla (A-13), ParvezNazir Ahmed Shaikh (A-12), Md. Shafi, Anwar Theba (AA), Javed Chikna (AA)and he filled the chemical (black soap) in the vehicles which were to beplanted as bombs. He further stated as follows: " After sometime Shafi, Anwar, Javed Chikna, Bashir, Parvez, Shoeb and 10/12 boys assembled there. All people came in the garage of Al- Hussaini Building and all of them filled chemical @ black soap in a number of vehicles ."Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12) Confessional statement of A-12 under Section 15 of TADA has beenrecorded on 18.04.1993 and 21.04.1993 (06.50 hrs), by Shri P.K. Jain, thethen DCP, Zone III, Bombay. The following facts emerge from the abovesaidconfession with regard to the appellant (A-9):(i) The appellant (A-9) was present at the Al-Hussaini building on the night of 11.03.1993 along with other co-conspirators when the work of filling the black chemical (RDX) into the vehicles to be planted as bombs in Bombay was being done. The said black chemical was brought from Shekhadi which was landed on 03.02.1993.(ii) The chemical was packed in cardboard boxes and pieces of iron were also added to it.

(iii) In the morning of 12.03.1993, on the instructions of Anwar Theba (AA), the appellant (A-9), along with A-10 and A-12, threw 5-6 plastic bags in a wastage van of BMC at Bandra which contained the empty cardboard boxes of the explosives.(iv) A-12 further stated as follows: "And then at about 10.30 o' clock, Asgar came back to my house with Shoaib in the same red coloured van and we three came at Al- Hussaini. From there, we reached to the house of Anwar taking the three Suit cases (big briefcase) which were kept in the garage, by Maruti van, where we met Anwar and Mushtaq whose hair were curly. They both came and sat in the car, before starting the car Anwar opened the bag and pierced the article just like pencil into the chemical and closed the bags."(v) The appellant (A-9), along with A-10, came to the house of A-12 on 13.03.1993 and discussed about the blasts that had occurred on 12.03.1993.Confessional Statement of Imtiyaz Yunusmiyan Ghavate (A-15) Confessional statement of A-15 under Section 15 of TADA has beenrecorded on 07.05.1993 and 09.05.1993 (13.30 hrs.), by Shri K.L. Bishnoi(PW-193), the then DCP, Zone III, Bombay. The following facts emerge fromthe confessional statement of A-15:(i) The appellant (A-9) was seated in the maroon coloured Maruti Van along with A-10 and A-12 on 12.03.1993 and all of them drove to the house of Anwar Theba (AA) to collect the three suitcases.(ii) On 12.03.1993, A-9, along with A-10, came to the Al-Hussaini Building in a Maruti Van.(iii) In the presence of the appellant (A-9), Anwar Theba (AA) inserted timer pencil detonators in the dicky of scooters laden with explosives which were later planted as bombs.(iv) The appellant drove a scooter laden with explosives and fitted with pencil detonators on 12.03.1993.Confessional Statement of Mohd. Mushtaq Moosa Tarani (A-44) Confessional statement of A-44 under Section 15 of TADA has beenrecorded on 26.05.1993 and 22.05.1993 (10.00 hrs.), by Shri K.L. Bishnoi(PW-193), the then DCP, Zone III, Bombay. In his confessional statement,he stated that on 12.03.1993, A-9 and A-15 came to the residence of AnwarTheba (AA) in a Maroon coloured car driven by A-10.

341) The aforesaid confessional statements of co-accused persons, viz., A-10, A-11, A-12, A-15 and A-44 duly corroborate the confessional statementof A-9 in all material aspects. From the above, it is established that:

(i) The appellant (A-9) was actively involved in the conspiracy;

(ii) The appellant was present at the Al-Hussaini building in the night of 11.03.1993 and filled RDX in vehicles;

(iii) The appellant went to various places with A-10 and A-12 and also picked up three suitcases filled with RDX from the garage of the Al- Hussaini building in which detonators were inserted by Anwar Theba (AA) in order to plant the same at various places in the city.

(iv) The appellant was traveling in the car in which A-10, A-12, A-44 and Anwar Theba (AA) were also present.

(v) The appellant participated in various conspiratorial acts like aiding, abetting and in fleeing of Tiger Memon out of the country.

(vi) The appellant was fully aware that the aforementioned accused persons were carrying suitcase bombs for planting the same at Hotel Sea Rock, Hotel Centaur, Juhu and at Hotel Centaur, Airport.

(vii) The appellant parked the scooter at the junction of Sheikh Memon Street and Mirza Street at Zaveri Bazaar which exploded at about 03:05 p.m. killing 17 persons and injuring 57 others;

(viii) After parking the scooter, the appellant (A-9) threw the keys of the scooter into a gutter to avoid detection and went to a mosque to beg forgiveness for his sins.

342) It is also clear that the confessions made by co-accused persons aretruthful and voluntary and were made without any coercion. All safeguardsenumerated under Section 15 of TADA and the rules framed thereunder havebeen duly complied with while recording the confessions of the appellants.Retraction Statements:

343) Ms. Farhana Shah, learned counsel for the appellant (A-9) contendedthat the confessional statement of the appellant as well as of co-accusedpersons relied upon by the prosecution against the appellant (A-9) wereretracted subsequently, and therefore, it is not safe to base theconviction on the said confessional statements under Section 15 of TADA.Since the very same objection raised in the connected appeals wasconsidered and rejected, we are not once again repeating the same. Thesaid conclusion is applicable to this appeal also.Depositions of Prosecution Witnesses:

344) The prosecution has relied upon the evidence of several prosecutionwitnesses to establish the involvement of the appellant (A-9) in theconspiracy. The relevant facts emerge from the deposition of witnessesincriminating the appellant have been enumerated below:Eye-witnesses:Deposition of Badrinath Bishansingh Sharma (PW-29) (i) PW-29 is a hawker at Zaveri Bazaar. He is an eye-witness to the blast. He testified that on 12.03.1993, he saw a person trying to park a scooter in front of the shop of Narayandas Jewellers at Zaveri Bazaar which fell down. PW-29 offered to help him in lifting the scooter but the appellant (A-9) refused to take any help.(ii) He remembered the colour of the scooter as grey and noted its number on a cigarette pack. The said packet was handed over to the police on 18.03.1993 which was seized by seizure Panchnama Exh. No. 1878 proved by Nisar Ahmed Kankarbhai Shaikh (PW-550). PW-29 also identified the said cigarette packet. (iii) He also described about the site of the blast and stated that several persons were killed and injured in the blast including himself who got injured in his right leg.(v) PW-29 identified the appellant (A-9) in the identification parade held at Sacred Hearts School, Worli on 25.03.1993 as the person who parked the said scooter on 12.03.1993 at Zaveri Bazaar.(vi) PW-29 again identified the appellant (A-9) on 13.05.1993 in the identification parade held at the office of CID in Crawford Market.A perusal of the deposition establishes the fact that the appellant (A-9)parked the scooter laden with explosives at Zaveri Bazaar. Ms. FarhanaShah, learned counsel for the appellant (A-9) contended that PW-29 is anunreliable witness and his deposition should be discarded since he did notdisclose the number of the scooter or inform anyone until he had seen theappellant even after five days of the blasts on 12.03.1993. It is relevantto point out that PW-29 was also injured in the said blast and thereafter,he went to his house. The police had cordoned off the area. On the sixthday after the blasts, PW-29 came to the market and informed the police thathe could identify the person who had parked the scooter at Zaveri Bazaar.PW-29 actually identified the appellant in the Test Identification Paradeconducted on 25.03.1993 and 13.05.1993 as the person who parked the scooterat Zaveri Bazaar.Deposition of Amit Champalal Acharya (PW-36) (i) PW-36, who is an Estate Agent, is an eyewitness to the incident. (ii) When he was standing in front of the shop of Narayandas Jewellers on the fateful day, a scooterist (A-9), lost his balance while parking his scooter in front of the shop and fell down. One passerby tried to help him but he refused angrily. (iii) He further testified that the scooterist (A-9) left hurriedly after parking the scooter. This further shows that he was aware that there was a bomb inside the scooter which could explode anytime. (iv) He identified the appellant (A-9) in the identification parade held on 13.05.1993 at the office of CID in Crawford Market.Ms. Farhana Shah, learned counsel contended on behalf of the appellant (A-9) that the deposition of this witness should be discarded since PW-36failed to identify the appellant in the court when he was given opportunitytwice. The prosecution submits that non-identification of A-9 in the Courtwould not make the deposition of PW-36 unreliable as he did identify theappellant (A-9) in the identification parade held on 13.05.1993. Theidentification parade took place shortly after the blasts but theidentification in court took place only on 12.01.1996, which is almostafter three years, thus it is possible that due to passage of time PW-36was unable to identify the appellant before the court. The prosecutionfurther submits that this does not impeach the deposition made by PW-36since his evidence is sufficiently corroborated by the deposition of PW-29in all material aspects. The prosecution has brought to our notice thatthe identification parade dated 25.03.1993 was conducted at Sacred HeartsHigh School by Ram S. Bhosale (PW-460), who conducted the parade incompliance with the provisions of the Code. PW-460 also recognizedExh.1471, i.e., memorandum panchnama prepared during the parade. PW-460further stated that no police official was present in the parade room atthe time of the parade and that the appellant (A-9) was brought into theparade room wearing a cover (chadar) so as not to reveal his identity.Deposition of Moreshwar Gopal Thakur (PW-469) Special Executive Magistrate (PW-469) conducted the identificationparade in respect of A-9. Exh. 1510 is the memorandum of the TIP dated13.05.1993. The following information is available in the said memorandum:- (i) TIP memorandum records that a TIP was conducted by SEM Shri Thakur (PW-460) on 13.05.1993. (ii) The first witness - PW-29 identified the appellant as the person who parked the scooter at Zaveri Bazaar on 12.03.1993. (iii) The second witness - PW-36 also identified the appellant as the person who parked the scooter at Zaveri Bazaar on 12.03.1993.Evidence with regard to recovery of the keys of the Scooter:Deposition of Narsingh Tukaram Sherkhan (PW-556)

345) PW-556, a police officer, recorded the Disclosure Statement made bythe appellant on 21.03.1993 to the following effect:The appellant (A-9) said to the officer: "Come with me, I will show you the place, where I had thrown the keys of the scooter, after I parked the said Bajaj Scooter laden with explosives"The said statement was recorded vide Disclosure memo Exh.199 in thepresence of Panch Witnesses. Pursuant to the said disclosure, the appellant(A-9) led the police party and the same was recorded in the Panchnama (Exh.200) to the following effect: "Upon making the statement by the accused in pursuance of the aforesaid panchnama, we the panchas, Police party and the accused Mohammed Shoeb Mohammed Kasam Ghansar, Muslim, aged 30 years sat in the police jeep Number MH-01-M-364 and as per the instruction of the accused, the jeep Driver of P. N. 1938 Mahim Police Station drove the jeep by L. J. Road, Tilak Bridge, Dadar T.T., Ambedkar Road, Ibrahim Rahimatulla Road, Bhendi Bazar and after the jeep reached at Johar chowk via Mohammed Ali Road the accused asked the Jeep Driver to halt the vehicle (jeep) and thereupon the jeep driver halted the jeep. Thereafter the accused person, we the panchas and the police party got down from the jeep. Thereafter, as per the instruction of the accused, we the panchas, police party crossed the Mohammed Ali Road and came to the open space in front of the office of 'Time Travel & Tour' on the Western side foot path and on coming at the said place, pointed at a gutter on Mohammed Ali Road, situated on the opposite side of the 'Time Travel & Tour' and the accused also pointed that the key was thrown therein. The said gutter is at a distance of 10 feet from the said office. On the said gutter there are two cement lids and below the same there is a cement grille. In the presence of us, the panchas, distance was measured from the said gutter which distance from the Electric pole MHL 53 is 12 feet. The accused push aside the cement lid on the said gutter and dipped his hand in the said gutter and removed a below described key from the silt of the gutter when the police in the presence of us, the panchas, observed the key removed by the accused, the description of the said key is as follows. There are two keys in one steel ring and on one side of both the said keys, 'Bajaj' has been inscribed in English and below the same '2-112' has been inscribed and on the another side the letters K. V. P. has been inscribed in English and the same were smeared with the earth."It is brought to our notice by the prosecution that these were the keys ofthe scooter used in the blast at Zaveri Bazaar and this recovery,therefore, also established the fact that the appellant (A-9) had parkedthe scooter at Zaveri Bazaar on 12.03.1993 and threw the keys in the gutterafter parking the same. The prosecution submitted that the appellantfurther led the police party to recover his passport and driving licence.Deposition of Kamalakar Kashinath Deo (PW-51) The evidence of PW-556 is further corroborated with the evidence ofpanch witness Kamalakar Kashinath Deo (PW-51) wherein he stated that theappellant (A-9) had made a voluntary statement in his presence on21.03.1993 and disclosed the location of the keys of the scooter.

346) It has been contended on behalf of the appellant that the depositionof PW-51 should not be relied upon since the gutter from where the keyswere recovered had a manhole, and therefore, the investigating agency hasplanted the keys. To this, the prosecution pointed out that PW-51 is apanch witness and has identified the appellant as the person who offered totake the police party to the place where the keys of the scooter had beenthrown by him and were infact recovered from the said gutter after dulyopening the manhole. It is further pointed out that PW-51 withstood therigorous cross-examination and is a credible witness.

347) It has also been contended on behalf of the appellant that theevidence of PW-556 is unreliable due to various contradictions. It ispointed out by the prosecution that there is no contradiction in thedeposition of PW-556 and on going through the same, we feel that thecontradictions pointed out on behalf of the appellant (A-9) were minorcontradictions and they do not go to the root of the matter so as todiscredit the testimony of the witness.Evidence with regard to purchase of scooter:348) The prosecution pointed out that the scooter which was planted by theappellant (A-9) along with two other scooters, was purchased by MunafHalari (AA), who was a close friend of Tiger Memon. The said purchase wasdone in the following manner:(i) Munaf Halari approached Abdul Sattar (PW-82) for the purchase of these scooters under an assumed name.(ii) PW-82 took Munaf Halari to Govind Baria (PW-452) and PW-452 in-turn directed them to Asgar Ali Masalewala (PW-299).(iii) Munaf Halari paid an amount of Rs. 70,000/- in cash to PW-299 and took the delivery of two Bajaj scooters on 10.03.1993, and the 3rd scooter was delivered to Munaf Halari on the following day.(iv) PW-299 is a sub-agent of PW-298 who in-turn had purchased the scooters from M/s. Mohan Automobiles as deposed by Shriram Jitram Vasan (PW-81).(v) PW-81 stated that he purchased the scooter from Ajit Vanjari (PW-651) of M/s. Vasan Automobiles.Deposition of Sayeed Abdul Sattar (PW-82) PW-82, who was an employee of Munaf Halari (AA), stated that two newscooters were purchased on 11.03.1993 from the garage of PW-299 in ChorBazar, Bombay and one of them was of blue color. The delivery of the thirdscooter was given on the next day. He identified two out of the threescooters purchased, in court.Deposition of Govind Bechan Baria (PW-452)(i) PW-452 worked at a petrol pump where Munaf Halari used to park his vehicle and that is how he knew Munaf Halari.(ii) PW-452 deposed that Munaf Halari, along with two other persons, approached him to purchase new scooters on 10.03.1993 and that the witness referred them to Asgar Ali Masalewala (PW-299).Deposition of Asgar Ali Tahir Ali Masalewala (PW-299)(i) PW 299 carried on the business of sale/purchase of scooters.(ii) On 10.03.1993, Akhtar came to PW-299 with a request to purchase scooters. PW-299 obtained the delivery of scooters from a dealer, viz., Nisha Sales and gave the scooters to Akhtar and his two companions.(iii) The request for purchase of a third scooter was made on 10.03.1993. On 11.03.1993, he obtained the third scooter from the abovesaid dealer and passed it on to Akhtar and his two companions.Deposition of Shriram Jitram Vasan (PW-81)(i) PW-81 is a scooter sub-dealer (he used to purchase scooters from Vasan Auto and sell the same to customers) and prepares scooter purchase challans in the name of Mohan Auto.

(ii) PW-81 sold 22 scooters to Nisha Sales in early days of 1993 three of which were of stone, blue and cosmic colour respectively.

(iii) PW-81 identified the remaining two of the three scooters sold to Nisha Sales in Court.Deposition of Ajit Vitthalrao Vanjari (PW-651)

(i) PW-651 was an employee at Vasan Auto.

(ii) He recognized the challans issued in respect of purchase of Bajaj Scooters for delivery to M/s Mohan Auto in 1993.The prosecution pointed out that the above depositions and the documentsclearly establish the chain of purchase of scooters used in the blasts on12.03.1993.Investigation, Recoveries and FSL Reports:

349) The place of incident, i.e., where the blast took place at ZaveriBazaar was inspected by Narayan Yedu Rajguru (PW-554) vide panchnama Exh.1908. The panchnama described the effect of the explosion and vide thispanchnama debris and other articles were seized by the I.O. from the placeof occurrence. PW-554 also took samples from the place of occurrence inthe presence of FSL Experts vide panchnama Exhibit 1909.Deposition of Narayan Yedu Rajguru (PW-554) In his deposition dated 29.12.1999, he deposed that:

(i) He reached the site within 15 minutes of the blast.

(ii) He prepared a panchnama Exh.1908 in the presence of panch witnesses and seized the articles/blast debris etc. iii) He also proved this panchnama in court.

(iv) He deposed that the Forensic expert had also collected the samples from the blast site on 13.03.1993 and a panchnama (Exh. 1909) was prepared in the presence of panch witnesses.

(v) The panchnama was proved by the witness.

(vi) The said panchnama records the burnt scooter at the blast site.The seized articles were sent to the FSL for examination vide Exh. Nos.1910 and 1911. The FSL Reports pertaining to the examination of thesesamples are Exh. Nos. 1883, 1884 and 1885 which show the presence ofresidual high explosive RDX in the samples forwarded for examination.Evidence with regard to Injured Victims and the Relatives of the Deceased:

350) Nisar Ahmed Kankarbhai Shaikh (PW-550) has proved the deaths andinjuries caused to various persons due to the said explosion. Thefollowing injured witnesses have also deposed regarding the injuriesreceived by them on account of explosion at Zaveri Bazaar:(i) Ramchandra Raghunath Deshmukh (PW-394) was injured by a glass splinter that hit him on his back, tearing his shirt and causing a wound.(ii) Shivari B Garg (PW-424) was also injured by 15 to 20 glass splinters which struck him with great force causing multiple bleeding injuries near his left eye, left side of forehead, left hand and chest.(iii) Arjun Padurang Devde (PW-578) received injuries on the left side of his waist. He had to remain in the hospital for 8-9 days as the injuries were sustained due to some foreign particles which had pierced into his waist. It is pertinent to mention that metallic pieces (Article 485) were extracted from his body which were seized by Ashok Ganpat Dabhade (PW-558) vide panchnama Exhibit 1925.The following doctors have proved the injury certificates (Exh. Nos. 2364and 2355) with regard to PWs-394 and 424:(i) Dr. Durgaprasad Mahavir Vyas (PW-634) and;(ii) Dr. Vijaykumar Purshotam Ved (PW-637).The following witnesses have proved the ADR/Inquest panchnamas in respectof the victims who died in the explosion:(i) Sudhir Prabhakar Aspat (PW-569) and;(ii) Feroz Rajahamed Patel (PW-576) and PW-558.The following witnesses have proved the death of their relatives in theexplosion:(i) Vinayak Dattatray Chavan (PW-395) deposed with regard to the death of his sister, brother-in-law and nephew, who died due to injuries sustained in the blast that took place at Zaveri Bazaar on 12.03.1993 and;(ii) Radheshyam Mangalchand Poddar (PW-396) deposed about the death of his son due to the blast that took place at Zaveri Bazaar.The prosecution has also established the damage caused to variousproperties due to the bomb blast at Zaveri Bazaar from the panchnama Exh.No. 1908 as also by the deposition of PW-554. It also stands establishedthat the damage was due to the explosion caused with the help of RDXexplosives.

351) In view of the above said confessional statement of the appellant (A-9), the confessional statements of other co-accused persons as also the eye-witnesses PWs-29 and 36, along with other witnesses duly examined by theprosecution, the contentions raised by learned counsel for the appellantregarding his participation in the conspiracy, landing, conspiratorialmeetings as well as the filling of RDX during the intervening night, aremeritless as the charges framed against the appellant (A-9) have been dulyproved. Criminal Appeal Nos. 864-865 of 2008Abdul Gani Ismail Turk (A-11) ... Appellant(s) versusThe State of MaharashtraThrough STF, CBI Bombay ... Respondent ********

352) Ms. Farhana Shah, learned counsel appeared for the appellant and Mr.Gopal Subramanium, learned senior counsel, duly assisted by Mr. MukulGupta, learned senior counsel and Mr. Satyakam, learned counsel for therespondent.

353) These appeals have been filed against the final judgment and order ofconviction and sentence dated 19.09.2006 and 18.07.2007 respectively,whereby the appellant has been convicted and sentenced to death by theDesignated Court under TADA Bombay Bomb Blast Case, Greater Bombay in BBCNo. 1/ 1993.Charges:

354) A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-11). The relevant portion of thecharge is reproduced hereunder:- "During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UA.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate Sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosives substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of Indian Penal Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance.

" In addition to the abovesaid principal charge of conspiracy, theappellant was also charged on other counts which are summarized as under: At head Secondly:- The accused committed an offence punishable under Section 3 (3) of TADA (P) Act 1987 by committing the following overt acts:

(a) He participated in the landing of arms and explosives at Shekhadi in February 1993.

(b) He attended meetings at the house of Babloo and Mobina to make plans for committing terriorist acts.

(c) He received training in handling of arms, explosives at village Sandheri and Borghat.

(d) He participated in preparation of vehicle bombs in the night of 11th/12th March 1993. At head Thirdly:- He planted the explosive laden Jeep No. MP-09-S- 0070 in front of Udipi Hotel in Century Bazar, Worli on 12.3.1993, which exploded causing death of 88 persons, injuries to 159 persons and loss of properties worth Rs. 2.41 crores and, thereby, committed an offence punishable under Section 3(2)(i)(ii) of TADA.

At head Fourthly:- By causing the above mentioned explosion which resulted into death of 88 persons, he committed an offence punishable under Section 302 IPC.

At head Fifthly:- By causing the above mentioned explosion which resulted into injuries to 159 persons, he committed an offence punishable under Section 307 IPC.

At head Sixthly:- By causing the aforesaid explosion which resulted into grievous injuries to 53 persons, he committed an offence punishable under Section 326 IPC.

At head Seventhly:- By causing the above said explosion which resulted into injuries to 106 persons, he committed an offence punishable under Section 324 IPC.

At head Eighthly:- By causing the aforesaid explosion which resulted into damage to properties worth Rs. 2.5 crores, he committed an offence punishable under Section 435 IPC.

At head Ninthly:- By causing the aforesaid explosion, he also committed an offence punishable under Section 436 IPC.

At head Tenthly:- By causing the aforesaid explosion which resulted into death, injuries and damage to the properties, he committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head Eleventhly:- By causing the aforesaid explosions by possessing explosive substances, he committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908.

At head Twelfthly:- By possessing the explosives without valid licence that caused the aforesaid explosions, he committed an offence punishable under Section 9B (1) (b) of the Explosives Act, 1884.

At head Thirteenthly:- By causing the aforesaid explosion which resulted into damage to the public properties, he committed an offence punishable under Section 4 of the Prevention of Damage to Public Property Act, 1984.Conviction and Sentence:

355) On all the aforesaid charges the appellant was found guilty exceptfor charges (b) and (c) at head secondly by the Designated Judge. Theappellant (A-11) has been convicted and sentenced as under:(

i) to suffer punishment of death along with a fine of Rs.25,000/- under Section 3(3) of TADA and Section 120-B of IPC read with the offences mentioned in the said charge. (charge firstly).

(ii) to suffer RI for 10 years along with a fine of Rs.50,000/-, in default, to further undergo RI for 1 year for the offence punishable under Section 3(3) of TADA (charge secondly).

(iii) to suffer punishment of death along with a fine of Rs.25,000/- for the offence punishable under Section 3(2)(i) of TADA (charge thirdly).

(iv) to suffer punishment of death along with a fine of Rs.25,000/- for the offence punishable under Section 302 IPC (charge fourthly).

(v) to suffer RI for life along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 307 IPC (charge fifthly).

(vi) to suffer RI for 14 years along with a fine of Rs.25,000/-, in default, to further undergo RI for six months for the offence punishable under Section 326 IPC (charge sixthly).

(vii) to suffer RI for 2 years for the offence punishable under Section 435 IPC (charge eighthly).

(viii) to suffer RI for 7 years along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 436 IPC (charge ninthly).

(ix) to suffer RI for 10 years along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 3 of the Explosive Substances Act,1908 (charge tenthly).

(x) to suffer RI for 7 years along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 4(b) of the Explosive Substances Act, 1908 (charge eleventhly).

(xi) to suffer RI for 2 years for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884 (charge twelfthly).

(xii) to suffer RI for 5 years along with a fine of Rs.25,000/-, in default, to further undergo RI for 6 months for the offence punishable under Section 4 of the Prevention of Damage to Public Property Act, 1984 (charge thirteenthly).Evidence:

356) The evidence against the appellant (A-11) is in the form of:-

(i) his own confession;

(ii) confessions made by other co-conspirators; (co-accused);

(iii) testimonies of prosecution witnesses including eye witnesses; and

(iv) documentary evidence.Conspiracy

357) As mentioned above, a common charge of conspiracy was framed againstall the accused persons and in order to bring home the charge, theprosecution need not necessarily prove that the perpetrators expresslyagreed to do or cause to be done the illegal act, the agreement may beproved by necessary implication. Since we have elaborately discussed theissue relating to conspiracy in the earlier part of our judgment, there isno need to refer to the same once again.Confessional Statement of the appellant - Abdul Gani Ismail Turk (A-11)

358) Confessional statement of the appellant (A-11) under Section 15 ofTADA has been recorded on 15.04.1993, by Shri Prem Krishna Jain (PW-189),the then DCP, Zone X, Bombay. The following facts emerge from theconfession of the appellant:

(i) He knew that Tiger was a smuggler but he still joined him and used to perform the work of delivery/bringing of Hawala money.

(ii) He knew that Asgar Yusuf Mukadam (A-10), Imtiyaz Yunus Miyan Ghavate (A-15), Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Anwar (AA), Parvez Nazir Ahmed Shaikh (A-12) and the fact that they were working with Tiger.

(iii) He used to bring money from Mulchand Sampatraj Shah @ Choksi (A- 97) of Zaveri Bazaar.

(iv) He took part in landings of silver at Mhasla, Shekhadi where Jeeps of Raju Laxmichand Jain @ Raju Kodi (A-26) were used for transportation.

(v) On 27/28 January, on being called by Shafi, he visited the Al-Hussaini Building, where Tiger, Anwar Theba (AA), Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Imityaz Yunus Miyan Ghavate (A-15), Parvez Nazir Ahmed Shaikh (A-12), Yakub Abdul Razak Memon (A-1) and his wife were also present.

(vi) On 27/28 January, 1993, he left for Mhasla alongwith Tiger, Anwar Theba (AA), Imtiyaz Yunus Miyan Ghavate (A-15), Shafi, Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46) and Parvez Nazir Ahmed Shaikh (A-12) and from there he went to Shekhadi.

(vii) As there was no landing for 2-3 days, he stayed at Hotel Vaisava alongwith co-accused. (viii) He stayed along with others at Hotel Big Splash, Alibaugh on 31.01.1993 where other gang members also joined them.

(ix) On 02/03.02.1993, late at night, he alongwith co-accused Imtiyaz Yunus Miyan Ghavate (A-15) and other 4-5 persons went to Waghani Tower by jeep.

(x) He had seen 70-80 boxes of black coloured chemical, 250 - 500 hand grenades, 15-20 big pistols, 60-70 big rifles, electronic wires, magazines and rounds when the boxes were brought to the Tower by Tiger Memon and his men. Those items were also checked by Tiger.

(xi) All the smuggled contraband was loaded in the jeeps, tempo and van after their packing in the presence of the appellant (A-11).

(xii) The jeep of Raju Kodi (A-26) was also used for transportation of arms and ammunitions and RDX explosives.

(xiii) He also brought one such jeep of Raju Kodi to Bombay via Khandala and left it at Anwar's residence as per Tiger's instructions and dropped the other co-accused at Bandra before leaving the vehicle.

(xiv) He came to know about the object of smuggling of arms and ammunitions from the conversation of co-accused. He knew that this was being done to take revenge for the suffering of Muslims in the riots. (xv) He visited A-15's residence and as per the instructions of Anwar Theba (AA), he brought the jeep to the residence of Amjad and handed over 3 bags containing wire bundles and bullets to him. He (A- 11) parked the jeep there.

(xvi) He visited Tiger Memon's (AA) house after 04.02.1993 and accompanied him to the house of Anwar Theba (AA) and met Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A- 28), who had a tempo with them.

(xvii) He received Rs. 1 lakh from Tiger Memon to be paid to Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14). He also received instructions to bring 'black soap' and to go along with Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28) using a tempo available with them. He knew that the 'black soap' was the same material which was brought at Tower on 03.02.1993.

(xviii) He left for Mhasla along with Suleman Mohammed Kasam Ghavate (A- 18) and Sayyed Abdul Rehman Shaikh (A-28) for the said purpose.

(xix) He reached Mhasla in the morning and as instructed, contacted Dawood Taklya (A-14) and paid Rs. 1 lakh to him. (xx) He loaded 59 bags in the tempo and left for Bombay. On the way, he met Tiger Memon.

(xxi) On 07.03.1993, he accompanied Tiger and Shafi (AA) to Bandra and then went to the residence of Mobina (A-96) as per Tiger's instructions.

(xxii) At Mobina's place, he gave his scooter to Shafi. Other persons also went to the residence of Mobina.

(xxiii) On 08.03.1993, he accompanied Tiger Memon to Mobina's residence.

(xxiv) He accompanied Shafi to Jogeshwari in a Commander Jeep. He had seen Shafi with a bag in which 2 rifles, 4-6 hand-grenades and some rounds were kept.

(xxv) He then accompanied Shafi to the residence of Mobina (A-96).

(xxvi) He went to Mahad in a Jeep along with 3 other co-accused, out of them, one was Bashir Ahmed Usman Gani Khairulla (A-13) and waited at Hotel Vasava for Tiger as per his instructions. Tiger Memon, Javed Chikna (AA), Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), Sardar Shawali Khan (A-54) and three other persons came there after sometime.

(xxvii) In his presence, Tiger threw hand-grenades and imparted training in firing to the co-accused at Sandheri.

(xxviii) He accompanied the co-accused to Sandheri and waited till they did firing practice. (xxix) He also accompanied the co-accused to Bombay and dropped them at Mahim slope. The Jeep was parked at Shahnaz Hotel and keys of the jeep were given to Tiger's parents.

(xxx) He knew about the planting of suitcases in the hotels and the filling of RDX by the co-accused.

(xxxi) He knew that Maruti van was used for carrying RDX filled suit cases for planting the same in hotels. This van was also used for throwing of empty gunny bags and boxes etc. immediately after they were emptied.

(xxxii) He participated in the filling of RDX in the vehicles along with the other co-accused persons. One Jeep, two Maruti cars, one Maruti van, one Ambassador car and 5 scooters were filled with RDX under the supervision of Tiger Memon (AA) and Javed Chikna (AA).

(xxxiii) He accompanied Shafi to his residence and they brought 2 new scooters to the Al-Hussaini building. He again brought one more scooter with Shafi.

(xxxiv) Timer pencils were inserted by the co-accused Anwar Theba (AA) and 2 others in the RDX which was filled in the vehicles in his presence.

(xxxv) He planted the RDX-laden Commander Jeep at Passport office, Worli, Bombay.

(xxxvi) He had knowledge about the smuggling of chemicals and weapons for taking revenge and also about the consequences on account of use of RDX.

359) From the above confession, it is clear that the appellant (A-11) wasa close associate of Tiger Memon. He had full knowledge of all the facetsof the conspiracy and played an active part in the landing andtransportation of RDX and other contrabands and making of suitcase andvehicle bombs. He planted a jeep containing a bomb at Century Bazaar. Hewas involved in all the stages of conspiratorial design. It is thusestablished from his own confession that he played an important and activerole in the conspiracy.

360) Ms. Farhana Shah, learned counsel for the appellant (A-11) contendedthat a perusal of his confession shows that he was only an employee(driver) of Tiger Memon and was used only for transportation of goods andhad no role in the conspiracy. It was submitted by the prosecution that he(A-11) knew that Tiger Memon was a criminal and he also used to takedelivery on behalf of Tiger Memon in the hawala transactions and alsoparticipated in the smuggling of silver ignots. On 27/28 January, he wentto take delivery of arms and ammunitions and explosives along with otheraccused. When the landing was delayed by 2-3 days, he stayed in a hotelalong with others. The appellant (A-11) has admitted in his confessionthat he had seen 70 - 80 boxes of black coloured chemical, 250 - 500 hand-grenades, 15-20 big pistols, 60-70 big rifles, electronic wires, magazinesand rounds at the time of landing that took place on 02/03.03.1993 atWaghani Tower. From the confessional statement of the appellant (A-11),it can be concluded that he was an integral part of the conspiracy and wasa very close associate of Tiger Memon and not merely an innocent servantwho knew nothing about the actions of his master. It is also evident fromthe fact that in his confessional statement, he has stated that he knew theobject of the smuggling of arms and ammunitions, which in his words was "totake revenge of the suffering of Muslims".

361) It has also been contended on behalf of the appellant that Section 15of TADA has not been complied with and the warning required to be given wasnot given. However, a perusal of the same shows that the officer had askedthe appellant (A-11) if he was aware that the confession to be made by himcan be used as evidence against him in the Court. The accused had answeredthe aforesaid question in affirmative. The questions that were asked whilerecording the first part of the confession were: "whether he has any complaint against anybody? Ans. No.

Q. Whether anyone has put any kind of pressure on you to make this confessional statement? Ans. No.

Q. Whether you have been given any kind of allurement or threat? Ans. No.

Q. Do you want to make your confessional statement/ statement willingly? Ans. Yes.

Q. Whether you understand that you are not bound to make this statement/confessional statement? Ans. Yes. Q. Whether you understand that it may be produced in the court as an evidence against you in case you confess? Ans. Yes.

Q. After this you will be kept at place other than the custody of Tapasi Officer. Whether you know this? Ans. Yes.

Q. Do you still desire to make a confession ? Ans. Yes.

Q. I do not wish to record your statement forcibly or under any pressure and I, therefore, give you time of 48 hours to think over the same. During this you will be kept at place other than the custody of Tapasi Officer. Whether have you understood this? Ans. Yes." Before recording the second part of the confession, the officer askedthe following questions to the appellant. The questions and answers arequoted below:

"Q. On 15.4.93, you were produced before me and on that day you were given time of 48 hours to think over before recording the statement. That time limit has been expired, have you thought it over?

Ans. Yes.

Q. Whether you are under any pressure or you have been given any threat or allurement to make this confessional statement? Ans. No.

Q. Whether you know that, if you make any confession, then it may be produced in the court as an evidence against you? Ans. Yes."The above quoted conversation shows that the appellant (A-11) had beengiven due warning by the officer recording the statement that his statementcan be used against him. He had also been asked if there was any coercionor threat due to which he was giving his confessional statement. Thequestions and answers establish that the confession made by the appellant(A-11) was voluntary.

362) It has also been contended by the side of the appellant that a partof the confession was made after two months and, hence, it is a manipulatedconfession. This contention of the appellant (A-11) is devoid of any merit.The second confession has been discarded by the trial court and theprosecution has also not pressed into service that confession before thisCourt.

363) Learned counsel for the appellant (A-11) has further contended thatthe confession of the appellant (A-11) was recorded in the odd hours of thenight. It is pointed out by the prosecution that this fact could beelicited from the officer recording the confession, who was the best personto answer the query. It was also highlighted that it was not as a matterof routine that the confessions were recorded late at night and only a fewconfessions have been recorded in the late hours which could have beenexplained by the recording officer, if he was given an opportunity toexplain in the cross examination.

364) The said confession was sought to be retracted on 11.01.1994. It ispointed out by the side of the prosecution that the material contained inthe retraction statement is vague. It does not give any details orparticulars. The said retraction statement fails to pin point the reasonbehind the failure of concerned accused to make any complaint to theauthority- higher police officers or any other authority including Courtregarding his signatures being obtained on blank papers and/or the paperscontaining some typed material and the reason behind himself being forcedto effect the said signatures. It may also be noted that retraction wasnot made at the first available opportunity by the accused person. Afterarrest, the accused persons were brought before the court number of timesin 1993 and 1994 and the retraction was made many months after making ofthe confession. From the above discussion, it is established that theconfession of the appellant (A-11) was truthful and voluntary. It has alsobeen demonstrated that the requirements of Section 15 of TADA have beencomplied with. Hence the confession of the appellant (A-11) is admissibleas substantive evidence.Confessional Statement of co-accused:

365) A perusal of the above confession of the appellant (A-11) shows thathe was playing a key role in furtherance of the abovesaid conspiracy. Theother accused, in their confessions under Section 15 of TADA, have alsodiscussed the role played by the appellant (A-11) in the conspiracy.Confessional statement of Mohammed Shoaib Mohammed Kasam Ghansar (A-9) Confessional statement of A-9 under Section 15 of TADA has beenrecorded on 19.04.1993 and 22.04.1993 by Prem Krishna Jain (PW 189), thethen DCP, Zone X, Bombay. In the abovesaid confessional statement, thereference to the appellant (A-11) is as follows: "We, thereafter, came at Al- Hussaini Building of Tiger by red coloured Maruti van. He took the car inside after dropping me at the gate and took me inside after ten minutes and offered me a chair to sit. At that time Gani, Parvez, Shafi, Anvar were present there and 5/6 more persons were working in garage."(emphasis supplied)Confessional statement of Asgar Yusuf Mukadam (A-10) Confessional statement of A-10 under Section 15 of TADA has beenrecorded on 23.04.1994 (18:00 hrs), by Shri Krishan Lal Bishnoi (PW-193),the then DCP, Zone III, Bombay. In his confessional statement, thereference to the appellant (A-11) is as follows:(i) His confession establishes that the appellant (A-11) was a close associate of Tiger Memon and used to assist him in hawala transactions by accepting delivery and receipt of funds. He also used to assist Tiger in the landing of smuggled items and their transportation to various places.(ii) A-11, alongwith other co-accused, assisted the accused (A-10) in collecting Rs. 1 crore from Choksi (A-97) for Yakub Abdul Razak Memon. (A-1)

(iii) Following the departure of Tiger, he was seen present alongwith other co-accused, viz., Javed Chikna (A-12), Shafi, Parvez, Bashir, Usman etc. at Tiger's residence where various vehicles loaded with RDX were parked which were used for causing bomb blast.Confessional statement of Parvez Nazir Ahmed Shaikh (A-12) Confessional statement of A-12 under Section 15 of TADA has beenrecorded on 18.04.1993 (14:00 hrs) and 21.04.1993 (06:50 hrs) by PremKrishna Jain (PW 189), the then DCP, Zone X, Bombay.

The references made byhim with regard to the appellant (A-11) are as follows:

(i) A-11 introduced A-12 to Tiger Memon.

(ii) A-11 worked in the Tiger's office at Dongri and introduced A-12 to Tiger for employment in his office.

(iii) A-11 used to attend Hawala transactions of Tiger alongwith other associates and also used to help him in his landing operations at Shekhadi Coast.

(iv) A-11 went to Shekhadi Coast alongwith other associates to help Tiger in the landing of arms and ammunitions and explosives, which was delayed and effected on 03.02.1993, and transported the said material to the Tower and then to Bombay with the help of the vehicles containing secret cavities for the said purpose.

(v) A-11 also assisted Tiger alongwith other associates in landing at Shekhadi in the second week of Febuary, 1993 and transportation of the consignments to the Tower and thereafter to Bombay.

(vi) A-11 was present in the Al Hussaini building even after the departure of Tiger Memon.

(vii) On the night of 11.03.1993, A-11 filled the chemical into the vehicles parked in the garage at the Al-Hussaini Building.

366) It has been contended by learned counsel for the appellant that fromthe confession of A-12, it can be inferred that the appellant (A-11) wasworking as a driver of Tiger Memon. In view of the fact that A-12 hasgiven details about the presence and involvement of the appellant (A-11) inthe conspiracy and also about his participation in the act of loadingchemicals into the vehicles, it cannot be denied that he was not anintegral part of the conspiracy. The fact that A-11 was working in closeassociation with Tiger Memon and was entrusted with the task of driving thejeep shows the trust reposed in him by Tiger Memon. It is just because ofthe said trust, the position of responsibility commanded by the appellantin the conspiratorial design followed. He played an important andsignificant role. It cannot be said that A-12 has not given details of anyovert act done by A-11. A-12 has, in fact, given significant details aboutthe involvement of A-11 in the landings that took place and in the movementof vehicles in which cavities were made. A-11 was present in the AlHussaini building even after the departure of Tiger Memon in the earlyhours of 12.03.1993. This fact establishes that there was no coercion andthreat and the appellant (A-11) was working in pursuance of the object ofthe conspiracy out of his own free will and volition.Confessional statement of Bashir Ahmed Usman Gani Khairulla (A-13) Confessional statement of A-13 under Section 15 of TADA has beenrecorded on 16.05.1993 and 18.05.1993, by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay.

The reference to the appellant (A-11)in the said confession has emerged as under:-

(i) A-11 participated in the firing practice at Sandheri.

(ii) He was asked by Tiger to take out one gun along with its rounds and hand-grenades for training purpose at Sandheri.Confessional statement of Imtiaz Yunus Miya Ghavate (A-15) Confessional statement of A-15 under Section 15 of TADA has beenrecorded on 07.05.1993 (12:30 hrs) and 09.05.1993 (13:30 hrs) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay.

In hisconfessional statement, the following facts have emerged:(

i) A-11 was a close associate of Tiger Memon and worked in his office.

(ii) A-11 had gone to receive Tiger Memon at the Airport on the night of 23rd/ 24th January 1993 and then took him to his residence.

(iii) He participated in the landing and transportation of smuggled arms and ammunitions at Shekhadi.

(iv) He transported the arms and explosives from Waghani Tower to Bombay in a Jeep.Confessional statement of Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) Confessional statement of A-17 under Section 15 of TADA has beenrecorded on 18.04.1993 and 20.04.1993, by Prem Krishna Jain (PW 189), thethen DCP, Zone X, Bombay.

He referred to the role of A-11 as follows:-

(i) On 07.02.1993, the appellant (A-11), along with other co-accused (A- 18 and A-28), visited the residence of co-accused A-14, and paid Rs. 1 lakh to him. He also brought gunny bags in a Tempo.(ii) A-17 stated that they were given a total of Rs. 15 lakhs which included Rs. 1 lakh which was given through the appellant (A-11). This money was distributed amongst the various Custom officers, Police officers, Trawlervala, labourers and some money was also spent for the truck and other miscellaneous expenses.(iii) The appellant (A-11) brought other co-accused in a Jeep. From the Jeep, handgrenades and rifles were taken out for firing at Varad Ghat beyond Mahad.(iv) The appellant (A-11) was present along with A-17 at the foot-hill when co-accused were doing the firing practice.Confessional statement of Suleman Mohd. Kasam Ghavate (A-18) Confessional statement of A-18 under Section 15 of TADA has beenrecorded on 18.04.1993 (13:00 hrs) and 01.05.1993 (20:30 hrs), by SanjayPandey (PW-492), the then DCP, Zone-VIII, Bombay. The following facts haveemerged from the confessional statement of A-18:-(i) On 05.02.1993, the appellant (A-11) accompanied A-18 and A-28 and went to Mhasla in a Tempo bearing No. MMP- 4799 and on 06.02.1993 he met Dawood Taklya (A-14) and Dadabhai (A-17) at Mhasla. He helped in loading 59 to 63 packets in the tempo. He also associated with transporting of those bags.(ii) At the instance of Tiger Memon, A-11 along with A-18 returned to Mhasla from Panvel. They again went to Bombay along with the son of Dawood Taklya (A-14).(iii) On 08.02.1993 or 09.02.1993, he met A-18 at Mahad when he was with Tiger and others.(iv) He was also present at Mhasla Tower alongwith others.Confessional statement of Mohd. Iqbal Mohd. Yusuf Shaikh (A-23) Confessional statement of A-23 under Section 15 of TADA has beenrecorded on 20.05.1993 (10:00 hrs) and 22.05.1993 (10:00 hrs) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. Thefollowing facts have emerged from his confessional statement:(i) The appellant (A-11) has been referred to as 'a man of Tiger'.(ii) The appellant (A-11) took A-23 and others to the hills where he (A- 11) took out the arms and ammunitions (a gun, two hand grenades, and a bag of bullets of the gun) and Tiger imparted training in throwing hand grenades and firing with AK-56 rifle.Confessional statement of Manoj Kumar Bhanwar Lal Gupta (A-24) Confessional statement of A-24 under Section 15 of TADA has beenrecorded on 30.04.1993 (16:15 hrs) and 09.05.1993 (19:00 hrs) by SanjayPandey (PW- 492), the then DCP, Zone-VIII, Bombay. The following factshave emerged in his confessional statement:-(i) A-11 participated in the first landing at Shekhadi.(ii) At Shekhadi, the packets were opened and reloaded in the truck. There were AK- 56 rifles, hand-grenades, pistols, cartridges in the packets.(iii) A-24 also participated in the second landing at Shekhadi along with other people (he has not named the people present in the second landing).Confessional statement of Syed Abdul Rehman Kamruddin Syed (A-28) Confessional statement of A-28 under Section 15 of TADA has beenrecorded on 23.04.1993 (17:00 hrs) and 01.05.1993 (23:30 hrs) by SanjayPandey (PW-492), the then DCP, Zone-VIII, Bombay. The following factsemerge from his confessional statement:-(i) A-28 knew Tiger, Anwar, Rafique Madi, Haji Yakub and Gani (A-11).(ii) On 05.02.1993, the appellant (A-11), along with A-18 and A-28, proceeded in a vehicle from Mahim to Mhasala.(iii) At Mhasala, he met A-14 and A-17, who got 55-60 gunny bags loaded in their tempo.(iv) Tiger sent A-11 and A-28 to Persian Darbar.Confessional statement of Shahnawaz Abdul Kadar Qureshi (A-29) Confessional statement of A-29 under Section 15 of TADA has beenrecorded on 18.05.1993 (18:30 hrs) and 21.05.1993 (14:45 hrs) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. Thestatement of A-29 further corroborates the fact that A-11 participated inthe landing that took place at Shekhadi. From the statement, it is furtherestablished that Gani (A-11) had driven the jeep which was carrying thesmuggled goods.Confessional statement of Mohd. Rafique Musa Miariwala @ Rafiq Madi (A-46) Confessional statement of A-46 under Section 15 of TADA has beenrecorded on 21.04.1993 (19:00 hrs) and 23.04.1993 (21:25 hrs), by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The followingreferences have been made in the said confession regarding the appellant:

(i) A-11 worked in the office of Tiger Memon.

(ii) A-11 was one of the staff members of Tiger Memon attending his Dongri office for assistance in his business activities including his landing operations of smuggled goods.

(iii) A-11, along with A-46 and other associates, assisted Tiger Memon in the landing at Shekhadi which took place on 03.02.1993 after the delay of 2-3 days and then arranged for transport along with A-17 and others for its services at the Tower.(iv) A-11 reached the Tower in a Commander Jeep and exchanged his vehicle with A-46.Confessional statement of Sahikh Ali Shaikh Umar (A-57) Confessional statement of A-57 under Section 15 of TADA has beenrecorded on 19.04.1993 (12:00 hrs) by Shri Krishan Lal Bishnoi (PW-193),the then DCP, Zone III, Bombay.

The reference to the appellant in the saidconfession is as follows:-

(i) In the first week of February, when Javed Chikna (AA) took A-57 and A- 77 to the house of Tiger Memon, A-11 was present there along with other co-accused.

(ii) A-11 was seen on 10.03.1993 after a meeting took place in a flat at Bandra.

(iii) A-11 was present in the flat of Tiger Memon at the Al Hussaini building on the night of 11.03.1993 and then in the garage where the filling was being done.Confessional statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64) Confessional statement of A-64 under Section 15 of TADA has beenrecorded on 22.01.1995 and 24.01.1995, by Shri HC Singh (PW- 474), the thenSuperintendent of Police, CBI/SPE/STF, New Delhi. The references to theappellant (A-11) in the said confession are as follows:

(i) In the last week of January, when A-64 went to meet Tiger Memon, A-11 was present there along with other co-accused.

(ii) He observed that A-11, Javed Chikna, Shafi, Anwar Theba and Rafiq Madi used to visit the residence of Tiger Memon.

(iii) The appellant was seen driving a blue coloured Maruti car in which Tiger Memon had gone to Hotel Persian Darbar to meet the other conspirators.

(iv) While going to Shekhadi, on the way, the accused stopped at a place, where A-11 brought a black coloured bag which contained five AK-47/AK- 56 rifles, revolver, magazines and cartridges.

(v) The appellant participated in the first landing at Shekhadi.

(vi) A-11 also participated in the second landing at Shekhadi.

(vii) He was present at the Al-Hussaini Building compound during the preparation of vehicle bombs by using RDX in the night of 11/12.03.1993 which had landed at Shekhadi.Confessional statement of Gulam Hafiz s/o Suleman Shaikh @ Baba (A-73) Confessional statement of A-73 under Section 15 of TADA has beenrecorded on 15.05.1993 (22:05 hrs) and 17.05.1993 (01:45 hrs) by VinodBalwant Lokhande, the then DCP, Airport Zone, Bombay. The references to theappellant in the said confession are to be found as under:

(i) The appellant (A-11) was present at Mhasla Tower along with Tiger and others in a Jeep. They had also brought a truck which was loaded with goods which contained bombs, rifles and cartridges.

(ii) He was present while unloading contraband from a truck into a tempo and jeep at Mhasla Tower.Confessional statement of Mohd. Parvez Zulfikar Qureshi (A-100) Confessional statement of A-100 under Section 15 of TADA has beenrecorded on 15.04.1993 (23:30 hrs) and 17.04.1993 (17:00 hrs), by ShriSanjay Pandey (PW 492), the then DCP, Zone-VIII, Bombay.

The references tothe appellant in the said confession are as follows:

(i) He was present at the residence of Tiger Memon in the night of 11/12.03.1993 along with other co-accused.(ii) The appellant was loading 'goods' in the Jeep.Thus, it is very well established that the appellant was aware of theconsequences of his action and played an important role in the conspiracy.

367) From the confessional statements of the above co-accused, thefollowing facts are established:

(i) The appellant was a very close associate and trusted confidant of Tiger Memon.

(ii) The appellant worked in the office of Tiger Memon and was entrusted with the tasks which could only be assigned to trusted and responsible persons.

(iii) The appellant played an active role in the hawala transactions of Tiger Memon.

(iv) The appellant used to collect money from Choksi (A-97) of Zaveri Bazaar.

(v) The appellant collected Rs. 1 lakh from Choksi (A-97) for Yakub Memon (A-1).

(vi) The appellant was involved in the episode of landing of arms and ammunitions and explosives at Shekhadi Coast.

(vii) The appellant was present at Waghani Tower where the said articles were shifted in a tempo and jeep.

(viii) The appellant participated in the landing which took place at Mhsala and was also entrusted with the duty of transportation of the smuggled goods.

(ix) The appellant was present in the garage of the Al-Hussaini Building in the intervening night between 11/12.03.1993.

(x) The appellant was actively involved in the work of filling of chemical in the vehicles for their use as bombs.

(xi) On 23/24.01.1993, the appellant had gone to the Airport to receive Tiger Memon.

(xii) The appellant attended conspiratorial meetings.

(xiii) The appellant was a participant in the training programme conducted at Sandheri by Tiger Memon.

(xiv) The appellant was present in the Al-Hussaini building even after the departure of Tiger Memon.

(xv) The appellant was one of the most active member of the conspiracy and was a part of it from the stage of inception to the final stage of execution of the terrorist activities.

(xvi) The appellant participated in the conspiracy from planning to execution at various stages.Retracted Confessions:

368) We have already held that the confessional statement made by a personunder Section 15 of TADA shall be admissible in the trial of a co-accusedfor offence committed and tried in the same case together with the accusedwho makes the confession. A confessional statement given under Section 15shall not be discarded merely for the reason that the same has beenretracted. Further, a voluntary and truthful confessional statementrecorded under Section 15 of the TADA Act requires no corroboration. Sincethe very same objection raised in the connected appeals was consideredearlier, we are not once again repeating the same. The said conclusion isapplicable to these appeals also.Deposition of Prosecution Witnesses:Deposition of Mohammed Usman Jan Khan (PW-2) (Approver)

369) In the deposition of PW-2, the following statements are relevant:

(i) PW-2 deposed that he knew A-11. He identified the appellant in the Court.

(ii) He mentioned that Tiger Memon along with other co-accused was waiting for the appellant to come with his Commander Jeep after the landing had taken place at Shekhadi.

(iii) On reaching Nagothane Petrol Pump, Shafi took the co-accused to the South Indian Hotel at the Petrol Pump where the witness saw the appellant (A-11) sitting with Tiger along with Anwar Theba (AA), Munna, Karimullah, Ethesham, Akbar. Then they all had lunch in the hotel.

(iv) He also deposed about the landing of AK-56 rifles, rounds, hand grenades, pistols, magazines and RDX i.e. "Kala Sabun".

(v) He also gave details of their stay at Hotel Persian Darbar where the appellant (A-11) was also present.

(vi) On the same day, i.e., on 10.02.1993, at about 7:30 p.m., Tiger Memon came to Hotel Persian Darbar with A-16. Tiger Memon went to the room of the witness and told Shafi to shift the box which they had brought from their Jeep to the Jeep of the appellant (A-11).

(vii) PW-2 also told about the meeting which took place at the house of Shakil, and thereafter, the meeting with the appellant (A-11) outside Lucky Hotel.

370) Learned counsel for the appellant submitted that A-11 had noinvolvement in the conspiracy and was used as a driver to transport goodsand people from one place to another and also that the presence of A-11 inthe important conspiratorial meetings has not been mentioned by theapprover. It is pointed out by the prosecution that the charges against theappellant have been fully established by the admissible and reliableevidence on record. It is also stated that it is not necessary that theapprover ought to speak about each and every aspect of the prosecutioncase. It is not the case of the appellant that the approver present aninherently contradictory facts than the one proved by the prosecution. Itis also pointed out that A-11 has admitted that he was present when thechemical (black soap/ RDX) was being filled in the vehicles, viz., onejeep, 2 Maruti cars, one Maruti Van, one Ambassador and 5 scooters. Hefurther stated as under: "While filling the chemical, firstly a layer of chemical was filled and then pieces of iron were spreaded over and again a layer of chemical was filled and pressed. I also had done some work. Something like pencil was pierced into the chemical when the work of filling the chemical was over and before we left taking the vehicle in the morning. This work of piercing the pencil into was done by Anvar and some other 1-2 boys."Further, when a question was put to him as to why these arms andammunitions were brought and what was the motive behind the conspiracy, heanswered that this was to avenge the loss suffered by Muslims during theriots and he further admitted to be knowing the consequences of theactions, i.e., the destruction that would take place due to their actions.Deposition of 5Shekhar Shukra Devadiga (PW-15) (eye-witness) PW-15 has deposed as under:-(i) He had seen A-11 parking the Jeep at Century Bazaar on 12.03.1993.(ii) He identified A-11 in the Test Identification Parade held on 14.05.1993 by Moreshwar Gopal Thakur, Special Executive Magistrate, (PW-469) for which Memorandum Exhibit 1512 was prepared.(iii) He again identified A-11 in the Court and said that he had observed A- 11 very carefully prior to identifying him.(iv) He identified the appellant (A-11) as the person who brought the blue jeep and parked it in front of his shop which subsequently exploded.(iv) He deposed that other than identifying the appellant (A-11) in Court and seeing him on the day of the blast, he had never seen him before.Regarding the evidence given by PW-15, learned counsel for the appellant (A-11) has contended that the eye witness had left the city after the blastand, hence, he was not reliable. In reply to the said contention, it isrightly pointed out that this is normal human conduct. Further, it has comeon record that many persons left the city immediately after the blasts. Thepeople who were injured or who had witnessed the blasts were very scaredand horrified by the incident. Similar explosions were caused at variousplaces in the city. So the people of the city were frightened and went totheir native places. The said conduct of the witness does not render histestimony doubtful.Deposition of Moreshwar Gopal Thakur, Special Executive Magistrate, (PW-469) PW-469, the Special Magistrate, deposed on 01.02.1999. He stated thathe conducted the Test Identification parade on 14.05.1993 for PW-15 for theidentification of A-11. The eyewitness (Shri Shreedharan Govindan and ShriShekhara Shukara Devadiga (PW-15)) identified the appellant (A-11) as theperson who parked the blue jeep near Century Bazaar, Worli. The witnessalso proved Exhibit 1512 which was the identification parade panchnama.Deposition of Maharajpuram Subramaniyam Seshadri (PW-327) At the relevant time, PW-327 was the Deputy General Manager, QualityControl, Mahindra & Mahindra Company. He deposed as under:(i) The bumper (Article No.406) was of a Commander Jeep. The said article was proved to be a part of front bumper of Mahindra Jeep, Commander hard top model shown to him by Inspector Gaikwad at the office of Police at Crawford Market.(ii) He also proved his report being Exhibit No. 655 and gave the same to Police officer Gaikwad.Deposition of Anilkumar Vithal Kamat (PW 669) At the relevant time, PW-669 was the Inspector of Police. He deposedas under:(i) He seized 11 articles from the place of occurrence in the presence of FSL Experts and prepared a Panchnama Exhibit 2466. This panchnama contains the details of collection of samples by Chemical Analyser and the chassis and engine number of fully burnt cars.(ii) One engine was also seized from the place of occurrence. He also stated that the investigation carried out so far by him provided reasonable ground to believe the involvement of A-11.(iii) He arrested the appellant.(iv) He obtained the custody of the appellant (A-11) on 12.05.1993 from the Designated Court.(v) He interrogated the appellant (A-11) and put him for identification parade.Deposition of Fatehsingh Sohanrao Gaekwad (PW-543) At the relevant time, PW-543 was working with the DCB, CID. Hisdeposition was recorded on 09.12.1999. He also proved the death of variouspersons in the said blasts. He deposed that:

(i) He recorded the statement of the appellant (A-11) in August 1993 under Section 108 of Customs Act, 1962 in respect of damage done to the property due to bomb blast.(ii) He sought the order of sanction for prosecution of the appellant (A- 11), who had already been arrested by him along with other accused.It has been contended by learned counsel for the appellant that PW-543 hadmade a mistake and had admitted the same in paragraph 21, so it can beinferred that they were acting negligently and they have not adhered to theprovisions of the Code. PW-543 admitted as under: "Though I had formally arrested the said 11 accused persons, the said persons being in judicial custody, I had not taken custody of the same and hence, I had not drawn any arrest panchnama while formally showing them to be arrested in C.R. No. 1 1 7/93. My earlier statement of myself having formally arrested the said 11 accused persons before applying for grant of sanction is incorrect statement. I made the said mistake of fact while giving the said answer."It is pointed out by the prosecution that this mistake was a bonafide onewhich the officer corrected at the earliest opportunity. He has alsoadmitted the same in his deposition. The error made by him was an honesthuman error which cannot be said to have caused any prejudice to theappellant (A-11). From the admission of the officer, it can be conclusivelyinferred that the investigation was not manipulated and the officers werecareful in the work done by them.Deposition of Mahesh Yashwarnt Athavale (PW-611) At the relevant time, PW-611 was attached with the Dadar PoliceStation as a P.S.I. He inspected the scene of offence. On 24.03.2000, hedeposed before the Court as under:

(i) A Panchnama was drawn by him being Exhibit No. 1182 at the site regarding the prevailing situation and ascertaining the damage in the presence of panch witness Gaurishankar Rajnarayan Oza (PW-307).

(ii) The said Panchnama was in respect of the inspection of the site of explosion and the seizure of bumper of the vehicle bearing No. MP-09-S- 0070 (Article No.-406).

(iv) The panchnama also records that a crater 11 feet long (south to north), 14 ft, 9 inches long (east to west) and (5ft, 9 inches deep) was found after explosion at Century Bazaar, Worli.

(v) The windows of the nearby buildings were broken and extensive damage was caused in and around the blast site.

(vi) Many vehicles were damaged and two cars were fully burnt.

(vii) The said Panchnama was also proved by PW-307.It was submitted on behalf of the appellant that the complainant hasdescribed the scene of explosion but he has not mentioned the name ofanyone as the accused, so his complaint and testimony are not reliable andadmissible. It is submitted that merely because the complaint does notcarry the name of the accused, it would not lose its significance.Deposition of Hari Shridhar Bhangale (PW-306) PW-306 was a Constable attached with the Dadar Police Station. At therelevant time, he was posted at Police Chowky near Century Bazaar alongwith Police Naik Keny.

He deposed before the court that:-

(i) He heard a loud explosion at the side of Ramodia Mansion on Annie Beasant Road.

(ii) He also felt a jolt while in chowky.

(iii) He saw dense smoke billowing and he rushed to the place of explosion.

(iv) At the place of explosion, he found that a big ditch/crater was formed and that other buildings, BEST buses, motor taxis and several cars on the said road got damaged and many persons sustained injuries and had succumbed to death and were lying nearby the spot.

(v) He had taken 25 injured persons to Poddar Hospital.Investigation, Recoveries and FSL Reports:

371) Various articles were sent to FSL vide Exhibit Nos. 1850, 1852 and2423 for opinion and the reports of FSL were marked as Exhibit Nos. 1851,1853, 2424, 2467 and 2468. FSL reports show the traces of RDX in the saidarticles which are as follows:

(i) Exhibit 1850 is a letter to the FSL dated 17.07.1993 from CID requesting information about percentage/purity of RDX found on forwarded articles and components of explosives used.

(ii) Exhibit 1851 is the reply of the FSL dated 22.07.1993 to CID stating that percentage of RDX could be provided.

(iii) Exhibit 1852 is a letter to FSL dated 08.08.1993 from CID requesting confirmation whether the engine sent for examination belonged to the exploded Mahindra Jeep No. MP-09-S-0070.

(iv) Exhibit 1853 is the reply letter of FSL stated that a high explosive device would have been placed near the engine and the gear box.

(v) Exhibit 2423 is a letter from Police dated 15.03.1993 to the Chemical Analyser, Bombay sending substances used in Century Bazar bomb blast and requesting for an opinion on the nature of the bomb used.

(vi) Exhibit 2424 is a letter from Police dated 15.03.1993 requesting FSL's opinion on samples collected from the blast site.

(vii) Exhibit 2466 is a panchnama containing the details of collection of samples by chemical analyser. Chemical Analyser has noted the chassis and engine number of fully burnt cars.

(viii) Exhibit 2467 is a FSL report dated 26.03.1993 giving Engine number (DQ 16230) and Chassis number (CDR 75 0 DP-2WD-HT-DQ1620). The report clarified that RDX was detected as an explosive from amongst the substances recovered by Police at blast site.

(ix) Exhibit 2468 is FSL report dated 23.03.1993 which confirmed the presence of RDX as explosive.Witness describing the Blast and Damage:Deposition of Anjani Bhanu Gorule (PW-388)

372) Her deposition was recorded on 05.08.1998. She deposed as under:

(i) On 12.03.1993, at 2:30 p.m., while doing household work on the first floor of her house at Nehru Nagar, Rahivashi Sangh, Century Bazaar, Bombay-18, she heard the sound of a loud explosion and she was thrown on the ground floor.

(ii) She became unconscious. However, after gaining consciousness, she found herself and her relative Sunanda Tambe, who had been in her house on the said day, in Poddar Hospital.

(iii) She sustained burn injuries to her right leg, fracture to left leg and minor injuries to her person due to piercing of splinters and she remained in the hospital for four days.Deposition of Mrs. Sunita Rajendra Walvekar (PW-389) In her deposition dated 05.08.1998, she stated that at about 2 p.m.,she had been to beauty parlour on second floor of Ramodia Mansion. Shefurther deposed that:

(i) Around 2:30 to 2:35 p.m., she heard the sound of a huge explosion.

(ii) As she was sitting near the window, something struck on her head and left hand which caused bleeding to her.

(iii) She found that shattered glass had pierced her hand. She removed the same and wrapped the injury with her clothes (pallu of saree) and came out of Ramodia Mansion.

(iv) She found that the entire atmosphere was full of black smoke.

(v) Her brother took her to KEM Hospital where she was treated for 11 days.Deposition of Jayant Anant Sawant (PW-390)

He deposed in the Court on 05.08.1998 as follows:

(i) On 12.03.1993, at about 2.45 p.m., while he was at his Typing and Xerox Centre situated opposite to Passport Office on A.B. Road, he heard a loud explosion from the side of Century Bazaar.

(ii) He was thrown away at a distance of 15 feet from the place where he was.

(iii) He sustained injuries on his right cheek due to striking of glass splinters and sustained bleeding injury on his right forearm along with swelling.

(iv) He also sustained injury on his right thigh.

(v) He went to KEM Hospital along with 2/3 persons who also had sustained injuries.

(vi) He was admitted in the said hospital and the glass splinters from his cheek and thigh were removed.

(vii) A piece of iron rod was removed from his forearm and plastic surgery was conducted on his right cheek.

(viii) He remained as an indoor patient in KEM Hospital for one month.

(ix) One Chedda accompanied him and some more injured persons were admitted at KEM Hospital for treatment while others were discharged after the treatment.Other Evidences:

373) PWs-644, 638 and 632-Doctors have issued the Injury CertificatesExhibit Nos. 2379, 2366 and 2350 for the injuries sustained by PW-388, PW-389 and PW-390 respectively. Deposition of Dr. ShivkumarDhanjuram Jaiswal (PW-644) PW-644 is a doctor attached to MA Poddar Hospital. He deposedregarding the Certificate issued by him and entry of casualty Register. Hisdeposition reveals that PW 388 was brought to hospital on 12.03.1993 andwas having 3 injuries and in his opinion the same were involving risk toher life and had also given history of injuries being sustained due to bombblast. The Medical certificate of Anjani Manu Borale (PW-388) certifyingthat she was brought to MA Poddar Hospital on 12.03.1993 due to burnsduring the bomb blast has been proved by the witness.Deposition of Dr. Vidya Shirvaikar (PW-638) The witness proved the Medical certificate of Sunita Walvekar (PW-389)dated 12.03.1993 which had been marked as Exhibit 2366 certifying that shewas treated in the out-patient department of KEM Hospital, Parel forContused Lacerated Wound (CLW) on face below eye.Deposition of Dr. Parag Laxman Mhatre (PW 632) PW-632 proved Exh. No. 2350, the Medical certificate of Jayant Sawantdated 12.03.1993 certifying that the said victim was treated in the out-patient department of KEM Hospital, Parel for Contused Lacerated Wound(CLW) on face.

374) A total of 88 people died in the blast that took place at CenturyBazaar. PWs-391 and 393 proved the death of two of the victims in CenturyBazaar blast as follows:(i) Vilas Baliram Gamre (PW-391) deposed as a witness regarding the death of his father. While travelling in BEST bus, his father Baliram Gamre succumbed to injuries on 12.03.1993 at about 2:30 to 2:45 p.m. due to bomb blast occurred at Century Bazaar.(ii) Ashalata Prakash Phatak (PW-393) proved the death of her husband, Prakash Gopal Pathak, in the blast that took place at Century Bazaar. The doctors, who examined the dead bodies of various persons died onaccount of the blasts, have also deposed regarding the injuries received bythe deceased persons.(i) Dr. Walter George Vaz (PW-476) on 03.05.1999 described the reasonsfor the death of the victims in the blast and proved the death certificatesnamely, Exhibit Nos. 1584, 1585 and 1587 which were countersigned by himregarding cause of death of John Thomas, Kisan Barshinge and VishramMayekar respectively after they were examined by Dr. Baxi, Dr. Pisal & Dr.Inamdar respectively. He also proved his certificate regarding opiniongiven by him for the cause of death of Prakash Pathak after examining hisdead body.(ii) Dr. Anand Pandurangraj Desai (PW-477) proved the certificatescountersigned by him regarding opinion given by him for cause of death ofBaliram Gamre, Niyati Acharya and Mamta Surendra after examining their deadbodies.Deposition of Kishore Laxman Sawant (PW-568) PW-568 proved the Accidental Death Reports (ADRs) prepared by him inrespect of the dead persons in the blast. The PSI of Dadar Police Stationat KEM hospital had registered ADR Nos. 25/93, 34/93 and 37/93 regardingaccidental death of Balimar Gamre, Kum. Niyati Acharya and Prakash Pathakrespectively. After the bodies were identified by their relatives, theywere sent to Coroner's Court through officers of Coroner's Court. In thesame manner, with the help of other police officers, he had registered 34accidental deaths reported at KEM Hospital. The said persons succumbed todeath due to the bomb explosion which occurred at Century Bazaar.Deposition of Shashikant Ramachandra Raut (PW-309) PW-309 proved the damage caused by the explosion. The PanchnamaExhibit 1186 dated 15.04.1998 was drawn by the police officer Shri Agarkarin his presence and in the presence of co-panch on 13.03.1993 at 2.30 p.m.This panchnama was regarding the places visited by them and especially thedamage caused to Century Bazaar Building.Deposition of Devji Nanji Jogadia (PW-580) PW-580 proved the damage to the Passport Office. At the relevant time,he was the Superintendent of Adminstration at Passport Office, Bombay.(i) Due to the explosion that occurred on 12.03.1993 in front of Ramodia Mansion, opposite to Passport Office, glass panes, window frames, furniture and doors of the Passport office Building were damaged.(ii) For carrying out the repairs, an expenditure of Rs. 3,29,908/- was incurred which was paid by Ministry of External Affairs and the quotation of M/s Mahindra & Company was accepted for the same.Deposition of PWs-583 and 647 proved the damage caused to BEST Buses-Publicproperties.(i) Sadanand Yashwant Padgaonkar (PW-583) was the Assistant General Manager, BEST Office, Colaba. On 12.03.1993, he found one single decker bus in completely burnt condition lying at the spot of Century Bazaar blast. He also reported seeing 4 damaged buses being brought to workshop at Dadar and ordered repair of the said damaged buses and replacement of the bus lying at Century Bazaar which was also brought to the workshop. In the month of August, 1993, he received the statement sent by the Officer of the Engineering Department of BEST informing that the total expenditure of Rs.13,93,000/- had been incurred for the above stated work.(ii) Pradeep R Karandikar (PW-647), who was an Assistant Engineer in the Street Lighting Department of BEST deposed that as per the record the total cost was assessed as under:(a) One BEST electric light pole of value Rs.12,000/- was vanished;(b) 3 lanterns of value Rs.4,000/- were damaged; and(c) BEST had sustained a loss of Rs. 16,294/- due to the blast that occurred at Century Bazaar.Deposition of Jayvant Rahdeo Salvi (PW-316) At the relevant time, PW-316 was the Colony Officer, G-Ward South forBMC and proved the damage caused to the properties belonging to BMC (publicproperty).(i) The pipelines in the Century Bazaar which were supplied by BMC were damaged due to the said explosion.(ii) The said damage was assessed to the tune of Rs. 45,000/- by Assistant Engineer, Water Works, G-South Ward of BMC.Deposition of Hemant Dattatray Parab (PW-579) At the relevant time, PW-579 was a Fire Officer in the Worli FireStation and proved the damage caused in general. In his deposition dated08.02.2000, he deposed that:(i) After attending and inspecting passport office on 12.03.1993, he prepared the fire report Exhibit 2006 and Exhibit 2007 on 13.03.1993 regarding the damage caused to the said site and the fire spread in the said area;(ii) 29 vehicles on the road, 6 RCC Buildings and one shed were under fire which was extinguished by them.Evidence with regard to the vehicle (Jeep) used in the Blast:

375) Three commander jeeps were purchased by Mohammed Shafi Zariwala (AA). The following are the Registration numbers of the same:-

(i) MP 09-S 0070

(ii) MP 09-S 0080(iii) MP 09-S 0082The first jeep was used for the blast at Century Bazaar, Worli. The othertwo jeeps were found abandoned and were seized by the police. ShafiZariwala (AA) purchased all these vehicles through PWs-365 and 366 andbookings were done by PW-195, an employee of M/s. Wasan Motors, who werealso dealers of jeeps. PW-627 of M/s. Wasan Motors received the cashpayment.Deposition of Nilesh G Parekh (PW-195) PW-195 is a Salesman of M/s. Wasan Motors.

He deposed that:

(i) In January, 1993, Shakeel Suleman Hasham (PW-366) of Auto Links booked 3 Mahindra Commander Jeeps in the names of Altaf Hussain, Aslam Shaikh and Jamal Ahmed of Indore. The delivery of the said jeeps, i.e., Article Nos. 378/379 was taken through his representative on two different dates in the month of January 1993.

(ii) About ten days after the blast on 12.03.1993, the Jeep (Article 378) bearing registration No. MP-09-S-0082 was shown to him at MRA Marg Police Station.

(iii) After 3 to 4 days, he also saw the blazer-blue coloured Jeep (Article 379) bearing registration no. MP-09-D-3043 at the office of Crime Branch.

(iv) He inspected the said jeeps and found that one additional cavity box and aluminium sheet flooring was prepared.

(v) On 22.01.1993, the Jeep, bearing Engine No. DQ 16217, Chassis No.16217 and Temporary Registration No. DMR-8322 was sold by M/s Wasan Motors.(vi) Exhibit 865 is the order form of 3 jeeps purchased by Shakeel, i.e., first blazer blue coloured jeep purchased for Altaf Hussain of M.G. Road, Indore, M.P. with temporary registration No. DMR-8322, Chassis no. DQ-16217, second blazer blue coloured jeep purchased for Aslam Shaikh of M.G. Road, Indore, M.P. with temporary registration No. DMR- 8323, Chassis no. DQ-16140 and a third blazer blue coloured jeep purchased for Jamal Ahmed of M.G. Road, Indore, M.P. with chassis no. DQ-16230.Deposition of Navnit Dhanpatrai Saini (PW-627) At the relevant time, PW-627 was working as a Sales Executive with M/sWasan Automobiles at Chembur. In his deposition dated 11.04.2000, hedeposed as under:

(i) On 20.01.1993, as asked by PW 195, he met at his residence at Bibijan Terrace, Byculla.

(ii) He alongwith PW-366 went to Patel Petrol Pump and received Rs.4.73 lakhs from PW-365 as an advance for two Mahindra Commander Jeeps which he wanted to book.(iii) Thereafter, he deposited the said amount with PW-195. On 21.01.1993, as instructed by PW 195, he along with sub-broker PW-366 had gone to PW-365 and placed an order for one more Mahindra Hard Top Commander Jeep and paid Rs.2.36 lakhs in cash and he had given the same to PW 195.Deposition of Kailash Baheti (PW-342) PW-342 was carrying on the business as an Auto Consultant under thename and style of "Baheti Consultant". In his deposition, he deposed thaton 22.02.1993, he received the papers for registration of 3 MahindraCommander Jeeps at Indore. On the next day, after receiving a call fromBombay regarding the registration papers of the jeeps, he handed over thedocuments and necessary charges to Mahesh Tiwari, RTO Agent. The officerregistered the said jeeps at RTO, Indore. PW-342 gathered from the salecertificates that all the said jeeps were purchased from M/s WasanAutomobiles at Bombay and he deposed that one of the purchasers of thejeeps was Jamal Ahmed who was residing at M.G. Road, Indore and otherpurchasers were also residents of M.G. Road, Indore.Deposition of Shakeel Suleman Hasham (PW-366) PW-366 was carrying his business under the name and style of M/s AutoLinks. In his deposition dated 09.07.1998, he disclosed that before givingthe delivery of the said three jeeps to PW 365, he got them insured throughInsurance agent Rakesh Tiwari (PW-338). He also got them registered atIndore, Madhya Pradesh through one Kailash Bindav. The delivery of the saidthree jeeps was taken by the concerned party directly from the showroom ofM/s Wasan Automobiles.Deposition of Suleman Mohd. Lakdawala (PW-365) PW-365 was running his own Petrol Pump at Byculla, under the name andstyle of M/s Patel Brothers since 1988. Besides the said Petrol pumpbusiness, he was also carrying the business of sale and purchase of motorvehicles. In his statement dated 09.07.1998, he stated that in the month ofJanuary/February 1993, he arranged for the purchase of three new CommanderJeeps. The jeeps were bearing registration numbers of M.P. They werepurchased through PW-366 from Wasan Automobiles for a price of Rs. 7 lakhs.The amount was paid by Shafi Zariwala (AA) and delivery of the jeeps wastaken by Shafi who brought them to his petrol pump.Deposition of Rakesh Tiwari (PW-338) PW-338 was an Insurance Agent. Sometime, in between, 22-01-1993 and 25-01-1993, at the instance of PW-366 of Auto Links, he insured 3 CommanderJeeps and 2 Maruti Vans with National Insurance Company. He gave thepolicy certificates to PW-366, who paid him the necessary charges. Exhibit1236 colly is the cover notes of policies prepared as per the informationgiven by PW-366.Mukhtar Imdad Ahmed (PW-281) PW-281 deposed that he had been asked by the Shafi (AA) to preparecavities in the Jeep. The cavities were to be prepared under the front seatby covering the lower portion of the front left side seat of the jeep.

376) The evidence of the approver, the eye-witness, experts and othersclearly implicate A-11 to the actual scene of the crime at Century Bazaaralong with linking him to taking part in the entire conspiracy. Theconfession made by A-11 himself and the confessions of the various co-accussed which have been discussed above are in consonance with the otheravailable evidence. Hence, it is established that the appellant (A-11)was an active member of the conspiracy which led to the blasts at variousplaces in Bombay and caused many deaths, injuries and loss to property.

377) The appellant (A-11) in his confessional statement admitted havingplanted the Jeep at Century Bazaar. It is clear from his own confessionalong with the confessions of co-accused and other witnesses that hehimself drove the jeep and left it there along with the bomb. It is alsoclear that he was aware of the entire conspiracy and was very close to A-1.He actively participated in landings, smuggling of arms and ammunitions,making of bombs and planting the bomb at Century Bazaar. The evidencegiven by the doctors and the family members of the deceased shows theextent of suffering that was inflicted by A-11 and the other accused inpursuance of the said conspiracy. The quantity of RDX that was used inblasts clearly shows and establishes the fact that the blasts were intendedto tear the economic, moral and social fabric of the nation and to inducecommunal tensions. The planning, timing and the intensity of the blastsestablish that the blasts were synchronised so as to cause maximum damageto life and property and the involvement of the appellant in the entireconspiracy was of great importance as he was himself involved in thelanding of arms and ammunitions and even planted the jeep with a bomb whichexploded in Century Bazaar.

378) In view of the above, we hold that the prosecution has producedsufficient evidence to bring home the charges framed against him. Criminal Appeal No. 897 of 2008Parvez Nazir Ahmed Shaikh (A-12) Appellant(s) versusThe State of MaharashtraThr. CBI-STF, Mumbai Respondent(s)

379) Ms. Farhana Shah, learned counsel appeared for the appellant (A-12)and Mr. Gopal Subramanium, learned senior counsel, duly assisted by Mr.Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel forthe respondent.

380) The instant appeal is directed against the final judgment and orderof conviction and sentence dated 21.09.2006 and 18.07.2007 respectively,whereby the appellant has been convicted and sentenced to death by theDesignated Court under TADA for the Bombay Bomb Blasts Case, GreaterBombay, BBC Case No. 1/1993.Charges:

381) A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-12). The relevant portion of thesaid charge is reproduced hereunder:- "During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UA.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate Sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosives substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of Indian Penal Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance." In addition to the abovesaid principal charge of conspiracy, theappellant was also charged on the following counts: At head secondly; He abetted and knowingly and intentionally facilitated the commission of terrorist acts and acts preparatory to terrorist acts by doing the following overt acts: i) He along with co-conspirators participated in the landing and transportation of arms, ammunition and explosives at Shekhadi on 3rd and 7th February, 1993; ii) He participated in training in handling and use of arms, ammunition and handgrenades on the outskirts of village Sandheri and Borghat; iii) He along with co-conspirators participated in preparation of vehicle bombs in the night of 11th/12th March, 1993 at Al-Hussaini Building; iv) He participated in the transportation of arms, ammunition, handgrenades and electric detonators from Jogeshwari to Musafirkhana with co-accused Ashrafur Rehman Azimulla Sheikh @ Lalloo and Smt. Ruksana Mohammed Shafi Zariwala and thereby having committed an offence punishable under Section 3(3) of the TADA. At head thirdly; He drove scooter bearing registration no. MP-14-B- 5349, laden with RDX explosives and fitted with time device detonator and parked the said vehicle at Katha Bazaar, opposite Maturchhaya Building, PS Pydhonie, Bombay which exploded resulting in death of 4 persons, injuring 21 others and causing loss of properties worth Rs. 37 lakhs and thereby committed offences punishable under Section 3(2)(i) and (ii) of TADA. At head fourthly; For the aforesaid act mentioned in charge thirdly, the appellant has committed an offence punishable under Section 302 IPC. At head fifthly; For the aforesaid act mentioned in charge thirdly, the appellant committed an offence punishable under Section 307 IPC by injuring 21 persons. At head sixthly; The appellant (A-12), by causing the aforesaid explosion, which resulted in grievous hurt to 10 persons, committed an offence punishable under Section 326 IPC. At head seventhly; The appellant (A-12), by causing the aforesaid explosion and voluntarily causing hurt to 11 persons, committed an offence punishable under Section 324 IPC. At head eighthly; The appellant (A-12), by causing the aforesaid explosion, caused damage to properties worth Rs. 37 lakhs, committed an offence punishable under Section 435 IPC. At head ninthly; The appellant (A-12), by causing the aforesaid explosion, caused damage to the property used as dwelling house and as places for custody of property committed an offence punishable under Section 436 IPC. At head tenthly; The appellant (A-12), by causing the aforesaid explosion, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908. At head eleventhly; The appellant (A-12), by causing the aforesaid explosion, committed an offence punishable under Section 4 (a)(b) of the Explosive Substances Act, 1908. At head twelfthly; The appellant (A-12), by possessing RDX without licence which was filled in the above mentioned scooter, which was used for causing the aforesaid explosion, committed an offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. At head thirteenthly; The appellant (A-12), planted an explosive laden suitcase in Room No. 1840 of Hotel Sea Rock on 12th March, 1993, which exploded causing damage to the property to the tune of Rs. 9 crores and thereby committed an offence punishable under Section 3(2)(ii) of TADA. At head fourteenthly; The appellant (A-12), by causing the aforesaid explosion committed an offence punishable under Section 307 IPC. At head fifteenthly; The appellant (A-12), by causing the aforesaid explosion in Hotel Sea Rock by using explosives committed an offence punishable under Section 436 IPC. At head sixteenthly; The appellant (A-12), by causing the aforesaid explosion in Hotel Sea Rock which resulted in damage to the properties worth Rs. 9 crores, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908. At head seventeenthly; The appellant (A-12), by causing the aforesaid explosion in Hotel Sea Rock committed an offence punishable under Section 4 (a)(b) of the Explosive Substances Act, 1908. At head eighteenthly; The appellant (A-12), by possessing explosives without licence, committed an offence punishable under Section 9B (1)(b) of the Explosives Act, 1884.

382) The Designated Judge found the appellant guilty on all the aforesaidcharges. The appellant has been convicted and sentenced for the above saidcharges as follows:Conviction and Sentence:

(i) The appellant has been convicted and sentenced to death under Section3(3) of TADA and Section 120-B of IPC read with the offences mentioned inthe said charge. In addition, the appellant was ordered to pay a fine of Rs. 25, 000/-. (charge firstly)

(ii) The appellant was further found guilty for the offence punishableunder Section 3(3) of TADA for commission of such acts as found proved fromclauses 'a' and 'c' from charge at head secondly framed against him and onsaid count the appellant (A-12) was convicted and sentenced to suffer RIfor 12 years and is ordered to pay a fine of Rs.50,000/-, in default ofpayment of fine, was ordered to suffer further RI for a period of 1 year.(charge secondly)

(iii) The appellant was further found guilty for the offence punishableunder Section 3(2)(i) of TADA for commission of such acts as found provedfrom charge at head thirdly framed against him and on said count he wasconvicted and sentenced to suffer punishment of death, subject toconfirmation of the same by this Court, and is also ordered to pay a fineof Rs.25,000/-. (charge thirdly)

(iv) The appellant was further found guilty for the offence punishableunder Section 302 IPC for commission of such acts as found proved fromcharge at head fourthly framed against him and on the said count he wasconvicted and sentenced to suffer punishment of death, subject toconfirmation of the same by this Court, and is also ordered to pay a fineof Rs.25,000/-. (charge fourthly)

(v) The appellant was further found guilty for the offence punishableunder Section 307 IPC for commission of such acts as found proved fromcharge at head fifthly framed against him and on the said count he wasconvicted and sentenced to suffer RI for life and is ordered to pay a fineof Rs.25,000/-, in default of payment of fine, he was ordered to sufferfurther RI for a period of 6 months. (charge fifthly)

(vi) The appellant was further found guilty for the offence punishableunder Section 324 IPC for commission of such acts as found proved fromcharge at head seventhly framed against him and on the said count he wasconvicted and sentenced to suffer RI for 3 years. (charge seventhly)

(vii) The appellant was further found guilty for the offence punishableunder Section 435 IPC for commission of such acts as found proved fromcharge at head eighthly framed against him and on the said count he wasconvicted and sentenced to suffer RI for 7 years and was ordered to pay afine of Rs.25,000/-, in default of payment of fine, he was ordered tosuffer further RI for a period of 6 months. (charge eighthly)

(viii) The appellant (A-12) was further found guilty for the offencepunishable under Section 436 IPC for commission of such acts as foundproved from charge at heady ninthly framed against him and on the saidcount he was convicted and sentenced to suffer RI for 5 years and wasordered to pay a fine of Rs. 25,000/-, in default, to further undergo RIfor a period of 6 months. (charge ninthly)

(ix) The appellant was further found guilty for the offence punishableunder Section 3 of the Explosive Substances Act, 1908 for commission ofsuch acts as found proved from charge at head tenthly framed against himand on the said count he was convicted and sentenced to suffer RI for 10years and was ordered to pay a fine of Rs.25,000/-, in default of paymentof fine, he was ordered to suffer further RI for a period of six months.(charge tenthly)

(x) The appellant was further found guilty for the offence punishableunder Section 4(b) of the Explosive Substances Act, 1908 for commission ofsuch acts as found proved from charge at head eleventhly framed against himand on the said count he was convicted and sentenced to suffer RI for 7years and is ordered to pay a fine of Rs.25,000/-, in default of payment offine, he was ordered to suffer further RI for a period of 6 months. (chargeeleventhly)

(xi) The appellant was further found guilty for the offence punishableunder Section 9B(1)(b) of the Explosives Act, 1884 for commission of suchacts as found proved from charge at head twelfthly framed against him andon the said count he was convicted and sentenced to suffer RI for twoyears. (charge twelfthly)

(xii) The appellant was further found guilty for the offence punishableunder Section 3(2)(ii) of TADA for commission of such acts as found provedfrom charge at head thirteenthly framed against him and on the said counthe was convicted and sentenced to suffer RI for life and was ordered to paya fine of Rs.1,00,000/-, in default of payment of fine, was ordered tosuffer further RI for a period of 3 years. (charge thirteenthly)

(xiii) The appellant was further found guilty for the offencepunishable under Section 307 IPC for commission of such acts as foundproved from charge at head fourteenthly framed against him and on the saidcount he was convicted and sentenced to suffer RI for 10 years and wasordered to pay a fine of Rs.1,00,000/-, in default of payment of fine, wasordered to suffer further RI for a period of 3 years.(charge fourteenthly)

(xiv) The appellant (A-12) was further found guilty for the offencepunishable under Section 436 IPC for commission of such acts as foundproved from charge at head fifteenthly framed against him and on the saidcount he was convicted and sentenced to suffer RI for 10 years and wasordered to pay a fine of Rs.1,00,000/-, in default of payment of fine, wasordered to suffer further RI for a period of 3 years. (charge fifteenthly)

(xv) The appellant (A-12) was further found guilty for the offencepunishable under Section 3 of the Explosive Substances Act, 1908 forcommission of such acts as found proved from charge at head sixteenthlyframed against him and on the said count he was convicted and sentenced tosuffer RI for 7 years and was ordered to pay a fine of Rs.25,000/-, indefault of payment of fine, was ordered to suffer further RI for a periodof 6 months. (charge sixteenthly)

(xvi) The appellant was further found guilty for the offence punishableunder Section 4(b) of the Explosive Substances Act, 1908 for commission ofsuch acts as found proved from charge at head seventeenthly framed againsthim and on the said count, he was convicted and sentenced to suffer RI for7 years and was ordered to pay a fine of Rs.25,000/-, in default of paymentof fine, was ordered to suffer further RI for a period of 6 months. (chargeseventeenthly)

(xvii) The appellant was further found guilty for the offence punishableunder Section 9B(1)(b) of the Explosives Act, 1884 for commission of suchacts as found proved from charge at head eighteenthly framed against himand on the said count he was convicted and sentenced to suffer RI for twoyears. (charge eighteenthly)Evidence:

383) The evidence against the appellant (A-12) is in the form of:-

(i) his own confession;

(ii) confessions made by other co-conspirators; (co-accused);

(iii) testimonies of prosecution witnesses including eye witnesses; and

(iv) documentary evidence.Conspiracy:

384) As mentioned above, a common charge of conspiracy has been framedagainst all the accused persons and in order to bring home the charge, thecumulative effect of the proved circumstances should be taken into accountin determining the guilt of the accused rather than adopting an isolatedapproach to each of the circumstance. Since we have elaborately discussedthe issue relating to conspiracy in the earlier part of our judgment, thereis no need to refer the same once again.Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12)

385) Confessional statement of A-12 under Section 15 of TADA has beenrecorded on 18.04.1993 (14:00 hrs.) and 21.04.1993 (06:50 hrs.), by ShriPrem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The facts emergefrom his confessional statement are as under:

i) The appellant (A-12) was introduced to Tiger by Abdul Gani Ismail Turk (A-11).

ii) The appellant (A-12) was told by A-11 that his (A-12) job was to bring and deliver the Hawala money. Tiger Memon told the appellant to work with honesty.

iii) In Tiger's office, the appellant (A-12) came across Asgar Yusuf Mukadam (A-10), Shafi (AA), Rafiq Madi (A-46), Anwar Theba (AA), Imtiyaz Yunusmiyan Ghavate (A-15), Salim Rahim Shaikh (A-52), Mohd. Hussian, Mohammed Mushtaq Moosa Tarani (A-44) and Haneef (A-40) and also came to know that Tiger was a smuggler of silver.

iv) In the last week of January, 1993, the appellant (A-12) accompanied A-15 to the Tiger's residence from where they, along with Tiger and other associates, left for Shekhadi for landing of smuggled items.

v) The landing took place after three days. Meanwhile, the appellant (A-12) and others stayed at Vesava Hotel at Mahad and also at Hotel Big Splash, Alibaug.

vi) On the 4th day, landing took place at Shekhadi. The appellant and some other boys were asked to wait for A-11 at the Tower. Thereafter, Tiger Memon came there along with a motor lorry which was loaded with goods. All the boxes in the lorry were unloaded at the Tower. The appellant and others opened the boxes and found that they were containing hand grenades, bullets, revolvers and wire bundles. Thereafter, some goods were loaded in the cavities of the Jeeps and the remaining goods were loaded in the lorry.

vii) The appellant (A-12) along with Nasir Abdul Kader Kewal @ Nasir Dhakla (A-64), drove a Jeep and stayed at Khandala as instructed by Tiger. A-64 left for Bombay as his daughter was sick. Tiger instructed the appellant (A-12) to stay there and told him that Suleman Mohammed Kasam Ghavate (A-18) will come in the morning. Accordingly, A-18 and A-15 came to Khandala and all of them left for Bombay.

viii) At the time of opening of goods at the Tower, Tiger showed a pencil like item to all of them and told that it was worth Rs.25,000/- and he could blow one Hotel Oberoi with it.

ix) In the second week of February, 1993, the appellant again went with Tiger Memon and other accused persons to Shekhadi coast and was present there at the time when the goods were unloaded and re- loaded in the tempo. Thereafter, he went to the Tower along with other accused persons.

x) On 15th/16th February, 1993, the appellant along with A-10 went to the Tiger's residence at Al-Hussaini Building where Shafi distributed Rs.10,000/- to everyone present there.

xi) On 11th March, on the instructions of Tiger, the appellant along with A-10, carried two suitcases, two hand bags and one big suitcase to Room No. 17 of Musafir-khana where he found that one bag was containing AK-56 rifles and another bag was having hand grenades in it. Thereafter, they went to the house of Shafi.

xii) The appellant (A-12) and Shafi then went to Shafi's sister-in-law's house at Jogeshwari in a jeep where wife of Shafi (Rukhsana) (A- 103) was also present. Shafi kept 2 AK-56 rifles and some hand grenades in one bag and pistols in another bag.

xiii) The appellant (A-12) and others carried both the bags and left in a Jeep and Shafi dropped them at Mahim and asked them to go to his house. Thereafter, they went to the house of Shafi and left both the bags there.

xiv) The appellant (A-12) drove Shafi's scooter and reached Al-Hussaini Building. xv) At Al-Hussaini Building, the appellant saw that the accused persons were filling the black coloured chemical into the cars, scooters and Jeeps which was smuggled on 03.02.1993 at Shekhadi,. xvi) The appellant also assisted the co-accused persons in filling RDX in vehicles.

xvii) The appellant, A-10 and Shoaib were asked by Anwar Theba (AA) to dispose off 5/6 plastic bags containing the empty cardboard boxes in which black soap was packed.

xviii) On return to Tiger's residence, the appellant along with Asgar and Shoaib picked up three suitcases which were kept in the garage and reached Anwar's residence in a red coloured Van where they met Anwar Theba (AA) and Mushtaq (A-44). A-15 also joined them later.

xix) Anwar Theba (AA) and Mushtaq (A-44) sat in the Van and left towards Link Road. On the way, Anwar Theba (AA) opened the bags and inserted the pencil like articles into the chemical filled therein and then closed the same.

xx) After reaching Link Road, Anwar Theba (AA) instructed A-12 to take one bag and keep it in Room No. 1840 of Hotel Sea Rock.

xxi) Accordingly, the appellant kept the said explosive-laden bag in the said room and reached the Al-Hussaini Building and handed over the keys of the said room to Anwar.

xxii) Thereafter, Anwar handed over an old blue coloured Bajaj Scooter to the appellant and asked him to park it in Katha Bazaar. Before leaving, Anwar Theba (AA) further inserted the said pencil into the black chemical which was filled in the scooter. The appellant parked the scooter at Katha Bazaar and took away the keys of the scooter with himself.

xxiii) On 12.03.1993, When Asgar and Shoaib came to the house of the appellant (A-12), he then handed over the keys of the scooter which he had parked at Katha Bazaar to Asgar.

xxiv) He knew that the explosions were for taking revenge for demolition of Babri Masjid against Hindus. He knew that the explosion would cause huge loss to human lives and properties and he intentionally committed this mistake.

386) On perusal of the aforesaid confessional statement, the followingsfacts emerge:

i) The appellant (A-12) was a trusted confidant of Tiger Memon since he was assisting him in crime relating to Hawala transaction and was well acquainted with other co-conspirators;

ii) He participated in the landing of arms and ammunitions and explosives and was fully aware of the nature and capacity of such material which is clear from the demonstration given by Tiger and as stated by the appellant (A-12) that a pencil like thing was good enough to blow the Oberoi Hotel;

iii) He participated in the transportation and storage of such material;

iv) He participated in filling of RDX in the vehicles parked in the garage of Al-Hussaini building;

v) He planted the suitcase in Hotel Sea Rock knowing that it contains RDX and is fitted with time pencil detonator; and vi) He parked the scooter laden with black chemical and fitted with time pencil detonator at Katha Bazaar.Retraction Statement:

387) It was contended on behalf of the appellant (A-12) that since hesubsequently retracted from his own confession dated 11.01.1994, the samecannot be relied upon. Since we have elaborately discussed theadmissibility or otherwise of the retraction statements in the earlier partof our judgment, there is no need to refer the same once again. The saidconclusion will be applicable to this appeal also.Confessional Statements of co-accused:

388) Apart from his own confession, the involvement of the appellant hasalso been disclosed in the confessional statements of the following co-accused. The legality and acceptability of the confessions of the co-accused has been considered by us in the earlier part of our discussion.The said confessions insofar as they refer to the appellant are summarizedhereinbelow:Confessional Statement of Mohammed Soaib Mohammed Kasam Ghansar (A-9) Confessional statement of A-9 under Section 15 of TADA has beenrecorded on 19.04.1993 (13:10 hrs.) and 22.04.1993 (00:30 hrs.), by PremKrishna Jain (PW-189), the then DCP, Zone X, Bombay. A-9 with reference toA-12 has stated as under:

i) The appellant (A-12) was working for Tiger Memon and he used to visit his shop occasionally.

ii) The appellant (A-12) along with other accused persons was working in the garage at Al-Hussaini.

iii) A-12 and A-10, on the instructions of Anwar Theba (AA), threw away six big plastic bags in the wastage van of BMC.

iv) In the morning of 12.03.1993, A-12 and A-10 brought out three VIP bags from the garage at Al-Hussaini Building and put them in the Van and left for the residence of Anwar.

v) Anwar Theba (AA) inserted pencil of steel into the blackish chemical inside the bags and then the appellant was dropped near a taxi and was asked to go to Hotel Sea Rock with a bag. vi) The appellant came back to the Al-Hussaini building.

(vii) After the blast, A-10 and A-9 went to the house of the appellant on 13.03.1993. Confessional Statement of Asgar Yusuf Mukadam (A-10) Confessional statement of A-10 under Section 15 of TADA has been recorded on 23.04.1994 (18:00 hrs.), by Shri Krishan Lal Bishnoi (PW- 193), the then DCP, Zone III, Bombay. A-10 with reference to the appellant has stated as under:

i) The appellant was dealing with Hawala money.

ii) The appellant was present at Tiger's residence. iii) A-10 and A-12 took Rs. 5 lakhs from Choksi (A-97) and gave it to Sharif Abdul Gafoor Parkar @ Dadabhai (A-17). iv) The appellant assisted him in collecting Rs. 1 crore from Choksi (A- 97) for Yakub Abdul Razak Memon (A-1). v) The appellant accompanied him to the Tiger's residence and shifted two VIP bags, one hand bag and one briefcase from Tiger's residence to Room No.17 of the Haj Committee House, near Crawford Market.

vi) The appellant accompanied him (A-10) to the house of Shafi and took a new scooter from his residence.

vii) The appellant (A-12) along with other co-accused persons was present at the Al-Hussaini building in the night intervening between 11/12th March and was loading black chemical in the vehicles.

viii) A-10 and A-12 disposed off the plastic bags in which the empty boxes of chemicals were kept.

ix) The appellant was present along with him when Anwar Theba (AA) inserted aluminum like pencils into the chemical filled in the suitcases.

x) The appellant was dropped by the accused (A-10) on the instructions of Anwar Theba (AA) with one of the said VIP bag. (xi) The appellant (A-12) came back to Al-Hussaini building, thereafter, as per the instructions of Anwar, he drove one scooter loaded with RDX to park it at the designated place.Confessional Statement of Abdul Gani Ismail Turk (A-11) Confessional statement of A-11 under Section 15 of TADA has been recordedon 15.04.1993 (22:35 hrs.) and 18.04.1993, by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. A-11 with reference to the appellanthas stated that: i) The appellant (A-12) was present at the residence of Tiger Memon on or about 27/28th January along with co-accused Shafi, Yakub Abdul Razak Memon (A-1), Rahim Yakub Memon, Rafiq Madi (A-46) and Imtiyaz Yunusmiyan Ghavate (A-15), whereafter, all of them (except Yakub and his wife) left for Mhasla/Shekhadi. ii) The appellant (A-12) was present at Al-Hussaini on 11.03.1993 and was filling chemical @ black soap in the vehicles along with the co- accused.Confessional Statement of Dawood @ Dawood Taklya Mohammed Phanse @Phanasmiyan (A-14) Confessional statement of A-14 under Section 15 of TADA has beenrecorded on 17.04.1993, by Shri P.K. Jain, the then DCP, Zone III, Bombay.A-14 with reference to the appellant stated that the appellant along withTiger Memon and others came to Shekhadi for landing of arms.Confessional Statement of Imtiaz Yunusmiyan Ghavate(A-15) Confessional statement of A-15 under Section 15 of TADA has been recordedon 07.05.1993 (12:30 hrs.) and 09.05.1993 (13:30 hrs.), by Shri Krishan LalBishnoi (PW-193), the then DCP, Zone III, Bombay. A-15 with reference tothe appellant stated the following: i) The appellant worked in the office of Tiger Memon. ii) The appellant participated in the landing at Shekhadi. iii) The appellant arrived at Anwar's house in the morning of 12.03.1993 along with A-10. iv) Thereafter, the appellant reached Al-Hussaini building. v) The appellant drove a scooter filled with black coloured soap like chemical at the instance of Anwar Theba (AA).

389) On perusal of the aforesaid confessions of the co-accused, it isclearly discernable that the appellant knowingly participated in doing thefollowing overt acts: i) The appellant was a trusted confident of Tiger Memon since he was assisting him in crime relating to Hawala transactions and was well acquainted with other co-conspirators. ii) The appellant participated in the landing of arms and ammunitions and explosives and was fully aware of the nature and capacity of such material. iii) The appellant participated in transportation and storage of such material. iv) The appellant was involved in filling of RDX in the vehicles parked in the garage of the Al-Hussaini building. v) The appellant planted suitcase in Hotel Sea Rock knowing that it contains RDX and is fitted with time pencil detonator. vi) The appellant parked the scooter laden with black chemical on the instructions of Anwar.

390) It is also clear that the confessions made by the appellants aretruthful and voluntary and were made without any coercion. All safeguardsenumerated under Section 15 of TADA and the rules framed thereunder havebeen duly complied with while recording the confessions of the appellants.Deposition of Prosecution Witnesses:Blast at Katha BazaarDeposition of Laxman Dhondu Posture (PW-8)

391) PW-8 was working as a peon in the office of Chemical Corporation,Katha Bazaar. He is an eyewitness to the incident and has deposed asunder: i) The appellant parked the scooter on the road in front of the Matruchayya Building at Katha Bazaar. It was this scooter in which the bomb exploded. ii) PW-8 identified the appellant before the court in the dock as the person who parked the said scooter. iii) PW-8 identified the appellant in the identification parade conducted by Moreshwar Thakur (PW-469), Special Executive Magistrate, on 13.05.1993, in Sitaram Building. iv) PW-8 further deposed that his employer's scooter was also parked next to the scooter parked by the appellant which was blown into pieces.Deposition of Abdulla Ibrahim Shaikh (PW-9) PW-9 was a driver working with one Mr. Mehra, whose office was on thethird floor of AGH Chambers which is opposite to Matruchayya building: i) PW-9 deposed that on 12.03.1993, a boy was trying to park a scooter adjacent to his employer's car. ii) PW-9 told the driver of the scooter not to park it there since it would be difficult for him to take out his car. iii) PW-9 further deposed that on this the driver of the scooter told him that he will leave in a while and parked his scooter there itself. iv) While parking the scooter, the appellant even lost his balance and was about to fall on the car then he helped the driver of the scooter to park it. v) PW-9 stated that after sometime he heard the sound of a big explosion and saw that his car was completely burnt. vi) PW-9 identified the appellant (A-12) before the Court as the boy who parked the said scooter which exploded. vii) PW-9 also identified the appellant in the identification parade conducted on 21.03.1993 at 4.30 p.m. by PW-462 at Sacred Heart School.

392) On perusal of the depositions of PWs-8 and 9, it is clearlyestablished that on 12.03.1993, the appellant parked the scooter at KathaBazaar, opposite to Matruchhaya Building which later exploded. Theappellant was duly identified by PWs 8 & 9 before the Court and also duringthe identification parade conducted by the Special Executive Magistrate.The above depositions also sufficiently corroborate the confessionalstatement made by the appellant that he parked a scooter laden withexplosives at Katha Bazaar.Deposition of Vasant Ganpat Kamble (PW-462) At the relevant time, PW-462 was the Special Executive Magistrate (SEM)who conducted the Test Identification Parade for the identification of theappellant. He deposed as under: i) He conducted the Test Identification Parade on 21.03.1993 for PW-9. ii) He further deposed that PW-9 duly identified the appellant (A-12). iii) The witness proved the panchnama of the parade which was prepared by him and is marked as Exh. 1478.Deposition of Moreshwar Thakur (PW-469) At the relevant time, PW-469 was the Special Executive Magistrate whoconducted the Test Identification Parade for the identification of theappellant-A-12. He deposed as under: i) PW-469 conducted the Test Identification Parade on 13.05.1993 at Sitaram Building in the presence of two panchas and also prepared a panchnama for the said parade. ii) PWs-8 and 9 identified the appellant as the person who parked the scooter at Katha Bazaar. iii) PW-469 in his deposition proved the panchnama.Deposition of Suresh Satappa Walishetty (PW-680) PW-680 was the Investigating Officer at the relevant time in the casepertaining to blast at Katha Bazaar: i) He deposed that the appellant made a statement before him that he was willing to make a voluntary disclosure which was reduced into writing by him. ii) The appellant (A-12) led the police party to Room No. 63 on the ground floor of Railway Quarters from where he took out a white shirt from a trunk and handed over the same to the police. On inspection by the police, it was found that it contained black stains on both the sleeves. iii) He deposed that he drew a recovery panchnama of the entire event. iv) He deposed that on 31.05.1993, the appellant made another disclosure statement and led the police party and got his driving licence bearing No. MH-01-93-5023 issued on 17.02.1993 recovered from the house of his friend Mohd. Taufiq Naulakhiya resident of Hussain Rattan Chawl. The panchnamas for the entire event were also prepared. v) Vide covering letter dated 28.06.1993, PW-680 sent the said shirt to the Chemical Analyzer. vi) The report of the Chemical Analyser dated 16.07.1993 was received by him. vii) He also deposed that one Raju Kodi (A-26) made a voluntary confession and led the police party to his shop and he took out a packet from a cupboard and handed over the same to the police party who opened it and found that it contained a registration certificate of Bajaj Scooter bearing No. MP-14-B-5349, Chassis No. MO-5-178695. viii) He deposed that he prepared two panchnamas of the entire event.The report of the Chemical Analyzer confirms the presence of the highlyexplosive RDX (Cyclonite) on the shirt recovered by the police party at theinstance of the appellant (A-12). Thus it can safely be inferred that theappellant was present at the time of filling RDX in the vehicles and duringthe said process he had soiled his shirt.Deposition of Sanjay Laxman Kadam (PW-530) PW-530 was the API and had assisted PW-680 in the interrogation of theappellant on 31.05.1993. PW-530 confirms and corroborates the fact of theappellant (A-12) making a voluntary statement and, thereafter, leading thepolice party to the house of his friend Mohd. Taufiq from where his drivinglicence was recovered.Deposition of Abdul Rauf (PW-525) PW-525 was a police officer at Pydhonie, Police Station at the relevanttime. He deposed that he inspected the place of occurrence in the presenceof panch witnesses. He further deposed as under: i) He seized chassis of a scooter and a part of the scooter which had burnt on the spot. The chassis bore the No. MO-5-178695. ii) He seized the number plate of the scooter bearing No. MP 1B 5349. iii) He also seized glass splinters and ashes from the spot. iv) He deposed that he seized pieces of cloth and earth soaked with oil lying on the spot. v) He also drew a spot panchnama which was proved by him.Deposition of Ramesh G. Thakur (PW-64) PW-64, an electrician working in Andheri, has deposed as a witness. Thefollowing facts have been established from his statement: i) He is a panch witness. ii) In his presence, A-26 made a voluntary statement. iii) A-26 led the police party and the panch witness to his shop. iv) In his presence, the police party pursuant to disclosure recovered the registration papers of Bajaj scooter.Deposition of Shantilal Gandhi (PW-386) PW-386 was involved in the preparation of ornaments of gold and owned astall in Zaveri Bazaar. He deposed to the following effect: i) He is a resident of Ratlam and after staying there he came to Bombay and worked at Zaveri Bazaar. ii) He knows A-26 since 1983. iii) Between 15-20th April, 1992 he went to Ratlam by train and before leaving, he met A-26. iv) A-26 told him that since Kumbhmela was going on in M.P., he would get 50% off on purchase of scooters. v) A-26 gave him Rs.20,000/- to purchase a scooter from Ratlam, M.P. in the name of P.B. Mali. vi) He purchased the scooter for Rs.19,000/- from Ratlam in the name of P.B. Mali and gave his residential address as 53, Hatiram Darwaja. vii) The Registration No. of the scooter was MP-14-B-5349. viii) He then booked the scooter by train to A-26 from Ratlam.Upon perusal of the evidence of PW-386, it is clearly established that hepurchased the scooter at the behest of A-26 from Ratlam, MP in the fakename of P.B. Mali and A-26 paid the money for the said purchase. PW-386also sent the registration papers to him which were subsequently recoveredfrom his shop vide disclosure statement made by A-26.Deposition of Pratapram Buraji Mali (PW-75) He had his own business of making gold and silver ornaments and so alsoin the Share Market. He deposed as under: i) He knew Raju Kodi (A-26) for the last ten years. ii) He had seen Raju Kodi driving a blue coloured scooter of Bajaj Company. iii) He had not booked any scooter in his name.On perusal of the aforesaid deposition, it is clearly discernible that thescooter was booked in the fake name which fact is also established from thedeposition of PW-75.Other Witnesses:Depositions of Dharmendra Ratilal Parekh (PW-423) and Sadashiv GanpatRanmale (PW-429)

393) The above witnesses deposed about taking claim of the dead body oftheir brothers who succumbed to the injuries sustained during the blast atKatha Bazaar.Deposition of Dr. Madhavrao Lalasaheb Lankeshwar (PW-478) PW-478 deposed about the fact that Hiten Ratilal Parikh, brother of PW-423 died on account of burn injuries sustained by him. PW-478 also issuedMedical Certificate explaining the cause of the death.Deposition of Vijay Harishchandra Kelvekar (PW-479) PW-479 deposed about the fact that Baburao Ganpat Ranmale, brother ofPW-429, died on account of burn injuries sustained by him. He also issuedMedical Certificate explaining the cause of the death.Deposition of Faizan Khan (PW-372) PW-372 deposed that Gulabi House owned by his company was damaged. Hedeposed that the damage estimated to the tune of Rs.25,000/-.Deposition of Dinanath Ramchand Ramani (PW-373) PW-373 deposed that he has an office at Vyapar Bhavan and due to theexplosion at Katha Bazaar the glass panes of the windows in the bathroomand balcony were damaged.Depositions of Suresh Shamrao Jathar (PW-617), Maheshwar Diwakar DattSharma (PW-616) and Anil Baburao Gorakshakar (PW-618) All the abovesaid witnesses have proved the damage caused to thepublic property on account of explosion at Katha Bazar.Deposition of Namdeo Yashwant Gole (PW-430) PW-430 deposed that he sustained injuries on his leg and forehead dueto which he became unconscious and was admitted in GT Hospital.Explosion at Hotel Sea Rock:Deposition of Premchand Pandhari Nath Garud (PW-23)

394) PW-23 was working as an attendant in the House Keeping Department ofthe said Hotel. He deposed as under: i) A guest (A-12), carrying a biscuit coloured suitcase and a black shoulder bag checked in Room No. 1840 at about 12:15 hrs. ii) The guest (A-12) was finding difficulty in opening the lock of the room so he assisted him in opening the door. iii) The appellant asked him not to disturb as he was exhausted and wanted to sleep. iv) Around 3 p.m., he heard a loud explosion due to which the said room was completely damaged and the lift also stopped working. v) PW-23 identified the appellant before the Court in the dock. vi) He also identified the appellant in the Test Identification Parade conducted by Vasant Kamble (PW-462) on 21.03.1993.Deposition of Vasant Kamble (PW-462) i) He is the SEM who conducted the TIP on 21.03.1993 for the identification of A-12 at Sacred Hearts School. ii) A Panchnama of the parade was also prepared by him which is marked as Exh. 1478 and he also proved the same.Deposition of Suresh K. Singh (PW-28) At the relevant time, PW-28 was working as a bell boy in the said hotel. i) On 12.03.1993, he offered help to the appellant (A-12) to carry his biscuit coloured suitcase and black coloured bag but he refused to take any help. ii) After 10/15 minutes, he saw the appellant leaving the hotel without luggage. (iii) He identified the appellant (A-12) in the Identification Parade dated 07.05.1993 conducted by Almedia, Special Executive Magistrate at Bandra Police Station in the presence of panch witness.Deposition of Suresh Kumar Champalal Bhandari (PW-467) i) He was the panch witness of the parade conducted by the SEM. ii) He deposed that PWs-28 and 23 duly identified the appellant (A-12) in the Identification Parade conducted by SEM iii) He deposed that a panchnama was prepared for the parade.The above said evidence establishes the fact that the appellant (A-12)entered into the Room No. 1840 along with the luggage and after leaving thesame in the said room, he went out of the hotel. Thereafter, a bigexplosion took place in the said room. Both PWs-23 and 28 have identifiedthe appellant (A-12).Deposition of Ms. Darive Nicholas Henriques (PW-279) PW-279 was the Front Office Receptionist at Hotel Sea Rock at therelevant time and deposed that a person by name Domnic D'Souza came to thehotel along with one more person to make an advance payment for Mr.Advani's reservation on 08.03.1993.Deposition of Johnwin George Manavalan (PW-280) PW-280 was working as a Cashier at Hotel Sea Rock and deposed ofhaving accepted Rs.7,000/- on 08.03.1993 towards advance payment forreservation of the said room commencing from 11.03.1993, in the name of Mr.Advani. He further deposed that he issued receipt for the same.Deposition of Valery D'Souza (PW-620) PW-620 was a Reservation Assistant at Hotel Sea Rock at the relevanttime and deposed that on 08.03.1993, a person had come to confirm the checkin of one Mr. Advani on 11.03.1993. She deposed that the said persondeposited Rs.7,000/- with the cashier and completed the reservationformalities.Deposition of Lorraine Gonsalves (PW-495) A receptionist at Hotel Sea Rock testified as follows:

i) One person came to the desk and told that he has a booking in the name of Mr. Advani for Gorakhpur Metal Company.

ii) He gave the booking number.

iii) He also produced the receipt for advance payment.

iv) He was given a registration card in which he filled 108, Napean Sea Road, as his address.

v) After completing all the formalities, she allotted Room No. 1840 and handed over the keys of the said room to him.Deposition of Dr. Manoj Jagatraj Virani (PW-107) He was a doctor and residing at 100 AA, Sea View Bungalow.

He deposedthat no person by name Dominic D'Souza or Advani stayed at 108 Napean SeaRoad.On perusal of the aforesaid evidence, it is established that Room No. 1840was booked in a fictitious name.Deposition of Dominic Anthony Martis (PW-333) At the relevant time, PW-333 was working as a Security Assistant atHotel Sea Rock and deposed about the explosion and damage caused due to it.He proved his complaint which culminated into a first information reportabout the said incident.Deposition of Rajan Mayandy Natarajan (PW-437) He was also a Security Officer at Hotel Sea Rock and he deposed aboutthe scene after the blast. He further deposed about the inspection of thesite conducted by PSI Bhagwan and proved the panchnama drawn by him.Dastagir Mohamad Gavandi (PW-552) PW-552 was a police officer and he deposed as under:

i) He inspected the site.

ii) PSI Bhagwan collected 7 to 8 samples from the room by drawing panchnama in the presence of panch witnesses.

iii) On 14.03.1993, he along with PW-531 again went to the Hotel with FSL experts who took some samples and handed over them to PW-531 vide panchnama Exh. 1826.

iv) On 19.03.1993, he sent three sealed packets vide covering letter to Chemical Analyzer through PW-531.

v) The chemical analyser report was received on 29.03.1993.The report of the Chemical Analyser in this regard is clear that thesamples sent for examination contained traces of high explosive RDX(Cyclonite) and nitrite.Deposition of Bhaurao Takekar (PW-531) PW-531 was a police officer and deposed that on 14.04.1993 he went tothe Hotel along with Mandlik and Karnik, FSL experts and inspected the saidroom. The FSL experts collected samples and handed over to him. Hedeposed that he drew a panchnama and handed over the seized articles to PW-552. He further deposed that he handed over three sealed packets to FSLfor opinion vide covering letter Exh. 1897.Deposition of Ashok Hotchand Motwani (PW-419) PW-419 was a Project Manager at Hotel Sea Rock and deposed about themonetary loss/damage caused to the hotel building owing to the explosion.Other Recoveries at the behest of the appellant:Deposition of Padmakar Bhosale (PW-43)

395) PW-43 is a hawker near Gandhi Market. He deposed that:

i) The appellant made a voluntary statement that he was in possession of the licence and the revolver of the Tiger Memon which he has kept in a black coloured pouch in a house.

ii) The appellant led the police party and the panchas to Railway Quarters, Andheri.

iii) The appellant took them behind his house and took out a black coloured pouch from the cavity of a fallen tree which contained a revolver loaded with six rounds and five loose rounds were also found, out of which, three were similar in number and two had different numbers inscribed on it.

iv) The police party seized the same and a panchnama was drawn by PW- 506.Deposition of Anil Prabhakar Mahabole (PW-506) PW-506 was posted at Matunga Police Station as API.

He deposed as under:

i) The appellant expressed his willingness to make a voluntary statement.

ii) He called for two panchas.

iii) He recorded the statement of the appellant (A-12) by drawing the panchnama.

iv) The appellant (A-12) led the police party and the panchas to Railway quarters.

v) The appellant (A-12) then took the police party behind his house and from the cavity of a fallen tree pulled out a pouch.

vi) The said pouch contained one old cobra brand loaded revolver and five loose live cartridges.

396) It is contended by the counsel for the appellant (A-12) that there isno eye-witness to the incident of filling of RDX and as such the saidincident has not been proved by the prosecution. It is clear from theconfession of the appellant (A-12) and the confessions of other co-accusedthat the work of filling of RDX in vehicles and suitcases was carried outin the garage of the Al-Hussaini Building. We are also satisfied thatsufficient evidence is available on record to substantiate the fact thatthe appellant (A-12) participated in filling RDX in vehicles in the nightintervening 11th/12th March, 1993.

397) It is contended on behalf of the appellant that PW-8 saw a personparking the said scooter at Katha Bazaar from the window of his officewhich is at a distance of about 15-20 meters from the road and therefore,his statement should not be relied upon. It is further contended on behalfof the appellant (A-12) that the doctor who treated PW-8 of the injuriessustained by him in the blast has not been examined by the prosecution tocorroborate the evidence of PW-8. The said contentions are also liable tobe rejected since the scooter of PW-8's employer was parked close to thescooter parked by the appellant (A-12). It is normal human behaviour tolook out for one's own vehicle or employer's vehicle and accordingly, PW-8was attentive and had a clear sight of the scooter. Thus, there was nodifficulty in seeing the appellant parking the scooter which laterexploded. Further, PW-8 has correctly identified the appellant (A-12)before the Court during the dock proceedings and also in the TestIdentification Parade. In addition to the same, it is relevant to mentionthat PW-8 has been extensively cross-examined by the defence on the pointthat he was injured and he took treatment at Dr. Shah's Clinic and hewithstood the cross-examination without being shaken. Therefore, thecredibility of the evidence of PW-8 is not affected whatsoever.

398) It is contended on behalf of the appellant (A-12) that PW-530 had notobtained the signatures of panch witnesses upon the licence and/or that hehad not recorded the Registration number of the vehicle in the StationDiary and that the panch witness was not a local panch witness and was froma place more than 100 kms. away. This submission is also liable to berejected since PW-530 clearly explained the circumstances in which he hadtaken the said panch for the panchnama, i.e., the persons who were fetchedby staff from Crawford Market. PW-530 in his deposition stated that thedriving licence being a plastic card, he could not obtain the signatures onthe same and the details of the driving licence having already beenmentioned in the panchnama, he had not pasted the label of the signature ofpanch witness upon the same and that he had mentioned in the Station Diarythe purpose of his visit and the persons accompanying him.

399) Finally, it is contended on behalf of the appellant (A-12) that thetestimony of PW-28 should be disregarded since he failed to identify theappellant (A-12) before the Court. This contention of learned counsel isalso liable to be rejected since PW-28 had correctly identified theappellant (A-12) during the test identification parade dated 07.05.1993 andhe failed to identify him before the Court possibly because his testimonywas recorded after about 2 years and 9 months, i.e. on 21.12.1995.

400) In view of the above said confessional statement of the appellant (A-12), the confessional statements of other co-accused persons, as also theeye-witnesses along with other witnesses duly examined by the prosecutionand recoveries made, the charges framed against the appellant have beenduly proved. Criminal Appeal Nos. 941-942 of 2008Mohammed Farooq Mohammed YusufPawale (A-16) Appellant(s) versusThe State of Maharashtrathr. CBI-STF, Bombay Respondent(s)

401) Ms. Farhana Shah, learned counsel appeared for the appellant and Mr.Gopal Subramanium, learned senior counsel, duly assisted by Mr. MukulGupta, learned senior counsel and Mr. Satyakam, learned counsel for therespondent.

402) The present appeals are directed against the final judgment and orderof conviction and sentence dated 09.10.2006 and 25.07.2007 respectively,whereby the appellant has been convicted and sentenced to death by theDesignated Judge in the Bombay Bomb Blast Case, Greater Bombay in BBC No.1/1993.Charges:

403) A common charge of conspiracy was framed against all the co-conspirators including the appellant (A-16). The relevant portion of thesame is reproduced hereunder: "During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (UA.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate Sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hindus and Muslims by using bombs, dynamites, handgrenades and other explosives substances like RDX or inflammable substances or fire- arms like AK-56 rifles, carbines, pistols and other lethal weapons, in such a manner as to cause or as likely to cause death of or injuries to any person or persons, loss of, damage to and disruption of supplies of services essential to the life of the community, and to achieve the objectives of the conspiracy, you all agreed to smuggle fire-arms, ammunitions, detonators, handgrenades and high explosives like RDX into India and to distribute the same amongst yourselves and your men of confidence for the purpose of committing terrorist acts and for the said purpose to conceal and store all these arms, ammunitions and explosives at such safe places and amongst yourselves and with your men of confidence till its use for committing terrorist acts and achieving the objects of criminal conspiracy and to dispose off the same as need arises. To organize training camps in Pakistan and in India to import and undergo weapons training in handling of arms, ammunitions and explosives to commit terrorist acts. To harbour and conceal terrorists/co-conspirators, and also to aid, abet and knowingly facilitate the terrorist acts and/or any act preparatory to the commission of terrorist acts and to render any assistance financial or otherwise for accomplishing the object of the conspiracy to commit terrorist acts, to do and commit any other illegal acts as were necessary for achieving the aforesaid objectives of the criminal conspiracy and that on 12.03.1993 were successful in causing bomb explosions at Stock Exchange Building, Air India Building, Hotel Sea Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza Theatre and in lobbing handgrenades at Macchimar Hindu Colony, Mahim and at Bay-52, Sahar International Airport which left more than 257 persons dead, 713 injured and property worth about Rs. 27 crores destroyed, and attempted to cause bomb explosions at Naigaum Cross Road and Dhanji Street, all in the city of Bombay and its suburbs i.e. within Greater Bombay and thereby committed offences punishable under Section 3(3) of TADA (P) Act, 1987 and Section 120(B) of Indian Penal Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of TADA (P) Act, 1987 and read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections 9B(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 and within my cognizance." In addition to the aforesaid principal charge of conspiracy, A-16 wasalso charged on other counts which are summarized as follows: At head secondly; He committed an offence punishable under Section 3(3) of TADA by committing the following overt acts. (a) He participated in the landing and transportation of arms, ammunitions and explosives which were smuggled into India at Shekhadi in February, 1993. (b) He visited Pakistan via Dubai for receiving training in handling of arms, ammunitions and explosives from the agents of ISI to commit terrorist acts in India. (c) He attended the conspiratorial meetings during the month of March 1993 at the residence of Babloo @ Nazir Anwar Shaikh and Mobina @ Baya Musa Bhinwandiwala for making plans to commit terrorist act. (d) He participated along with co-conspirators in loading the explosives like RDX fitted with time device detonators in various vehicles and in the preparation of vehicle bombs in the intervening night of 11/12 March, 1993. (e) He surveyed and conducted reconaissence of the Stock Exchange Building and Air India Building on 10.03.1993 for causing explosions there at the instructions of Tiger Memon. At head thirdly; He, along with PW-2 drove explosive laden Maruti Car No. MH-03-A-2143 and parked the same at Lucky Petrol Pump near Shiv Sena Bhavan, Dadar, Bombay which exploded and caused death to four persons and injury to 50 persons and causing loss of property worth Rs. 21,20,600/- and thereby committed an offence punishable under Section 3(2)(i)(ii) of TADA. At head fourthly; The appellant (A-16), by causing the aforesaid explosion which resulted in the death of 4 persons, committed an offence punishable under Section 302 IPC. At head fifthly; The appellant (A-16), by causing the aforesaid explosion which resulted in the injury to 50 persons, committed an offence punishable under Section 307 I.P.C At head sixthly; The appellant (A-16), by causing the aforesaid explosion, which resulted in grievous hurt to 10 persons, committed an offence punishable under Section 326 IPC. At head seventhly; The appellant (A-16), by causing the aforesaid explosion, which resulted into injury to 40 persons committed an offence punishable under Section 324 IPC. At head eighthly; The appellant (A-16), by causing the aforesaid explosion which resulted into damage to properties worth Rs. 22 lakhs, committed an offence punishable under Section 435 IPC. At head ninthly; The appellant (A-16), by causing the aforesaid explosion, committed an offence punishable under Section 436 IPC. At head tenthly; The appellant (A-16), by causing the aforesaid explosion, which resulted into death, injury and damage to property as mentioned has committed an offence punishable under Section 3 of the Explosive Substances Act, 1908. At head eleventhly; The appellant (A-16), by causing the aforesaid explosion and possessing RDX explosives in the said car committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908. At head twelfthly; The appellant (A-16), by possessing RDX without licence committed an offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. At head thirteenthly; The appellant (A-16), along with co-conspirators drove explosive laden Ambassador Car No. MH-20-TR-622 fitted with detonators and parked the said vehicle at the Tunnel Road, Air India building in front of the rear gate of Bank of Oman Limited at Air India Building which exploded and caused death to 20 persons and injured 84 persons and loss of properties to the tune of Rs. 2.15 crores and thereby committed an offence punishable under Section 3(2)(i)(ii) of TADA. At head fourteenthly; The appellant (A-16), by causing the aforesaid explosion at Air India Building which resulted in death, committed an offence punishable under Section 302 IPC. At head fifteenthly; The appellant (A-16), by causing the aforesaid explosion which resulted in the injury of 84 persons committed an offence punishable under Section 307 IPC. At head sixteenthly; The appellant (A-16), by causing the aforesaid explosion which resulted in the grievous injury to 36 persons committed an offence punishable under Section 326 IPC. At head seventeenthly; The appellant (A-16), by causing the aforesaid explosion which resulted in the injury of 49 persons committed an offence punishable under Section 324 IPC. At head eighteenthly; The appellant (A-16), by causing the aforesaid explosion which resulted in the damage of property committed offence punishable under Section 435 IPC. At head nineteenthly; The appellant (A-16), by causing the aforesaid explosion committed an offence punishable under Section 436 IPC. At head twentiethly; The appellant (A-16), by causing the aforesaid explosion which resulted in the death, injury and damage to the property as mentioned above has committed an offence punishable under Section 3 of the Explosive Substances Act, 1908. At head twenty-firstly; The appellant (A-16), by causing the aforesaid explosion committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908. At head twenty-secondly; The appellant (A-16), by possessing the RDX explosives in the above mentioned vehicle without licence, committed an offence punishable under Section 9B(1)(b) of the Explosives Act, 1884. At head twenty-thirdly; The appellant (A-16), by causing the aforesaid explosion which resulted in the damage of public property i.e., Air India Building committed an offence punishable under Section 4 of the Preventive Damage to Public Property Act, 1984.

404) The Designated Court found the appellant guilty on all the aforesaidcharges after considering the evidence brought on record by theprosecution. The appellant has been convicted and sentenced for the abovesaid charges as follows:Conviction and Sentence:

(i) The appellant has been convicted and sentenced to death under Section3(3) of TADA and Section 120-B of IPC read with the offences mentioned inthe said charge. In addition, the appellant was ordered to pay a fine ofRs. 25, 000/-.(charge firstly)

(ii) The appellant was found guilty for the offence punishable underSection 3(3) of TADA and sentenced to suffer RI for 12 years and is orderedto pay a fine of Rs.25,000/-, in default, he was ordered to suffer furtherRI for a period of 1 year. (charge secondly)

(iii) The appellant was sentenced to death, subject to confirmation of thesame by this Court, for the offence punishable under Section 3(2)(i) ofTADA and Section 302 of IPC respectively, and is also ordered to pay a fineof Rs.25,000/-. (charges thirdly & fourthly)

(iv) The appellant has been sentenced to RI for life for the offencepunishable under Section 307 IPC. (charge fifthly)

(v) The appellant has been sentenced to suffer RI for 10 years along witha fine of Rs. 25,000/- for the offence punishable under Section 326 IPC.(charge sixthly)

(vi) The appellant has been sentenced to suffer RI for 3 years along witha fine of Rs. 10,000/- for the offence punishable under Section 324 IPC.(charge seventhly)

(vii) The appellant has been sentenced to suffer RI for 7 years and10 years for the offence punishable under Sections 435 and 436 IPCrespectively along with a fine of Rs. 25,000/-, in default, to furtherundergo RI for 6 months. (charges eighthly & ninthly)

(viii) The appellant has been sentenced to suffer RI for 10 yearsalong with a fine of Rs. 5,000/-, in default, to further undergo RI for 6months for the offence punishable under Section 3 of the ExplosiveSubstances Act, 1908. (charge tenthly)

(ix) The appellant has been sentenced to suffer RI for 7 years along witha fine of Rs. 5,000/-, in default, to further undergo RI for 6 months forthe offence punishable under Section 4(b) of the Explosive Substances Act,1908. (charge eleventhly)

(x) The appellant has been sentenced to suffer RI for 1 year for theoffence punishable under Section 9-B(1)(b) of the Explosives Act, 1884.(charge twelfthly)

(xi) The appellant has been sentenced to death along with a fine of Rs.25,000/, in default, to further undergo RI for 3 years for the offencepunishable under Section 3(2)(i) of TADA. (charge thirteenthly)

(xii) The appellant has been sentenced to death, subject toconfirmation of the same by this Court, along with a fine of Rs. 25,000/-for the offence punishable under Section 302 IPC. (charge fourteenthly)

(xiii) The appellant has been sentenced to RI for life for the offencepunishable under Section 307 IPC. (charge fifteenthly)

(xiv) The appellant has been sentenced to suffer RI for 10 yearsalong with a fine of Rs. 25,000/- for the offence punishable under Section326 IPC. (charge sixteenthly)

(xv) The appellant has been sentenced to suffer RI for 3 years along witha fine of Rs. 10,000/- for the offence punishable under Section 324 IPC.(charge seventeenthly)

(xvi) The appellant has been sentenced to suffer RI for 7 years and10 years for the offence punishable under Sections 435 and 436 of IPCrespectively along with a fine of Rs. 25,000/-, in default, to furtherundergo RI for 6 months. (charges eighteenthly & nineteenthly)

(xvii) The appellant has been sentenced to suffer RI for 10 years alongwith a fine of Rs. 5,000/-, in default, to further undergo RI for 1 yearunder Section 3 of the Explosive Substances Act, 1908. (charge twentiethly)

(xviii) The appellant has been sentenced to suffer RI for 7 years alongwith a fine of Rs. 5,000/-, in default, to further undergo RI for 1 yearfor the offence punishable under Section 4(b) of the Explosive SubstancesAct, 1908. (charge twenty-firstly)

(xix) The appellant has been sentenced to suffer RI for 1 year forthe offence punishable under Section 9-B(1)(b) of the Explosives Act, 1884.(charge twenty-secondly)

(xx) The appellant has been sentenced to suffer RI for 5 years along witha fine of Rs. 25,000/-, in default, to further undergo RI for 6 months forthe offence punishable under Section 4 of Prevention of Damage to PublicProperty Act, 1984. (charge twenty-thirdly).Evidence:

405) The evidence against the appellant (A-16) is in the form of:-(i) his own confession;(ii) confessions made by other co-conspirators; (co-accused);(iii) testimonies of prosecution witnesses including eye witnesses; and(iv) documentary evidence.Conspiracy:

406) As mentioned above, a common charge of conspiracy has been framedagainst all the accused persons and in order to bring home the charge, thecumulative effect of the proved circumstances should be taken into accountin determining the guilt of the accused rather than adopting an isolatedapproach to each of the circumstances. Since we have elaborately discussedthe issue relating to conspiracy in the earlier part of our judgment, thereis no need to refer the same once again.Confessional Statement of Mohammed Farooq Mohammed Yusuf Pawale (A-16)

407) Confessional statement of A-16 under Section 15 of TADA has beenrecorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.), by SanjayPandey (PW-492), the then DCP, Zone VIII, Bombay. The appellant, in hisconfessional statement, has given details about his involvement in theconspiracy. He has given the description of the meetings that he attended. He also described about the training that took place in Pakistan and otherrelevant details about his own involvement as well as that of the otheraccused. We have been taken through his entire confession. The followingfacts emerge from his confessional statement:

i) He resided at Balmiya Lane, Pamkar Chawl, Room No. 8, Wanjewadi, Mahim, Bombay and worked as a driver at Anees Travels, Mahim.

ii) He stated that he knows Javed Chikna (AA), resident of Mahim for the last five years (as on date of confession) and who is a goon and has also committed murder. He further stated that he also knew the friends of Javed Chikna i.e., Usman, Nasir Dhakla and Parvez Zulfikar Qureshi who were also criminals.

iii) On 07th February, 1993, Javed Chikna called him and asked whether he could drive a jeep for him and whether he could take 2 days leave. He (A-16) agreed and said that he would take leave for two days.

iv) Next day, i.e., on 08/09th February, 1993, he accompanied Usman to Bharat Training School where he saw Javed Chikna, Nasir Dakhla and Parvez. Two blue coloured jeeps arrived there after about half an hour. Javed Chikna sat in one jeep and A-16, Shaikh Ali, Parvez, Nasir Dhakla and Usman sat in another jeep which stopped at Vashi. He got down at that time and saw that Munna, Bashir, Anwar Theba (AA) and two other persons were sitting in other jeep. He identified Anwar and Bashir because they used to visit Javed Chikna. Usman told him the name of Munna.

v) He along with Munna, Anwar and other co-accused assisted Bhai @ Tiger Memon in the landing of 84 bags. He mentioned that it was dark and they were prohibited from lighting even a matchstick. This shows that the bags contained explosive material and they did not want to take any risk.

vi) He was given a plastic bag containing two pistols for his safety by Tiger after that they searched for the tempo which was carrying their material.

vii) On 10.02.1993, he along with 5 other persons left Bombay and reached Dubai. viii) On 13.02.1993, he along with six other co-accused persons was sent to Islamabad, Pakistan by Tiger Memon.

ix) On 16.02.1993, he was taken to the training spot where he was given seven days' training in dismantling and handling of arms, use of bombs, hand grenades and chemical bombs. He further stated: "Next day we were given training in dismantling and re- assembling the rifles and pistols and the use of the bombs. Second day, we were given physical training and handling of pistol and rifle. We were also given training in firing."

x) On 27.02.1993, he was taken back to Islamabad and on 01.03.1993 to Dubai. xi) In the evening on 03.03.1993, he along with 5 others, returned to Bombay from Dubai.

xii) On 07.03.1993, he attended a meeting along with Irfan and other accused persons at Khar in which Tiger told that he was going to cause riots in Bombay and asked him to work with Salim Mujahid and Irfan.

xiii) On 10.03.1993, he collected one white safari suit for himself, a blue coloured suit for Irfan and a biscuit coloured suit for Salim.

xiv) On the same day, A-16, Irfan and Salim wearing their respective suits surveyed Air India Building, Nariman Point in a red Maruti 1000 car driven by the appellant (A-16). The appellant stopped the car, came out and saluted the said two companions. Then he took them to the Saudi Consultate and Maker Tower. At about 1:30 p.m., they visited the Stock Exchange Building where he parked the car in the parking lot. Irfan got down earlier, while Salim got down at the parking place. On objection being raised by the watchman, A-16 took the vehicle out of the parking lot.

xv) On the same day, in the evening, he alongwith others attended the meeting at Bandra behind the Bhabha Hospital whereby Tiger distributed Rs. 5,000/- to each one of them and asked them to work without fear.

xvi) On 12.03.1993, he was paid Rs. 5,000/- by Javed Chikna who handed over to him a white Ambassador Car to park it at the spot near Air India Building which was earlier surveyed by them. He also took one pistol and rounds from Javed which he hid in his shirt.

xvii) A-16, who was wearing a white Safari Suit, took the Ambassador Car and left it near the Bank of Oman near Air India Building.

xviii) At that time, he was picked up by Irfan Chougule along with Salim Rahim Shaikh (A-52), who was in a blue coloured Maruti Car and he was, thereafter, dropped at Sachivalaya (Secretariat).

xix) He handed over the pistol and rounds (ammunitions) to A-52.

xx) He was taken by Usman in a Maruti 800 Car to Sena Bhavan Junction where Usman parked the car at the nearby Petrol Pump.

xxi) In the evening, he told Bashir (A-13) that he had parked one vehicle near Air India Building which caused the blast.

xxii) Next day, he came to know that the Memon's Building (Al Hussaini) was raided by the Police.

xxiii) On 14.03.1993, on the advice of Rafiq, he went to Siraz Saloonwala at Mumbra and stayed there for 7 days and, thereafter, to his relative Tauji Ahmed at Kalva for 2 days and then to Uran from where he was arrested from the residence of his relative Fusa Kumbi.

408) The appellant herein was involved in the blasts that took place inthree places, namely, Air India Building, Shiv Sena Bhawan and the StockExchange. It is submitted that in these three blasts 108 people werekilled, 314 were injured and property worth Rs. 7.7 crores was destroyed.From the overt acts committed by the appellant herein, it is discerniblethat the appellant was fully conscious of the conspiratorial design and hasactively and willingly participated in the conspiracy.Confessional Statements of other co-accused:

409) A perusal of the above confession by the accused shows that theappellant was playing a key role in furtherance of the abovesaidconspiracy. The other accused, in their confessions under Section 15 ofTADA have also discussed the role played by A-16 in the conspiracy. Theconfessions of the co-accused persons are as follows:-Confessional Statement of Asgar Yusuf Mukadam (A-10) Confessional statement of A-10 under Section 15 of TADA has beenrecorded on 23.04.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),the then DCP, Zone III, Bombay. The said accused has stated that theappellant (A-16) along with Parvez Nazir Ahmed Shaikh (A-12) and SalimRahim Shaikh (A-52) left for Dubai on 10/11th February, 1993 when he (A-16)was picked up along with the said two associates by A-10 from Midland Hoteland were dropped at the Airport. This statement corroborates with theconfession of the appellant, who too had stated that he went to Dubai on10.02.1993.Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29) Confessional statement of A-29 under Section 15 of TADA has beenrecorded on 18.05.1993 (18:30 hrs.) and on 21.05.1993 (14:45 hrs.) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The saidaccused referred to the role of the appellant (A-16) as follows: i) A-16 was present in the training camp in Pakistan when Shahnawaz, Abdul Kadar Qureshi (A-29) and others reached there. ii) They received training in handling of arms and explosives in Pakistan.Confessional Statement of Zakir Hussain Noor Mohammed Shaikh (A-32) Confessional statement of A-32 under Section 15 of TADA has beenrecorded on 16.05.1993 (1125 hrs.) and 19.05.1993 (1730 hrs.) by KrishanLal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said accusedreferred to the role of the appellant (A-16) as follows:(i) A-16 went to Dubai along with other co-accused.(ii) They (including A-16) received training in handling of arms and ammunitions in Pakistan.(iii) During his stay in Pakistan, A-16 was renamed as 'Faizal' and the accused were not allowed to use their actual names.(iv) On 03.03.1993, Farooq, Parvez, Salim Mujahid, Salim Dandekar, Irfan and A-32 left Dubai at 1 p.m. and came to Bombay.Confessional Statement of Abdul Akhtar Khan (A-36) Confessional statement of A-36 under Section 15 of TADA has beenrecorded on 19.05.1993 (17:40 hrs.) and on 21.05.1993 (18:20 hrs.) by ShriKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The saidaccused also stated that A-16 had undergone training in handling arms andammunitions and explosives in Pakistan. This confession, along with theabove stated confessions, establishes that the appellant went to Pakistanto receive training in the use of arms and ammunitions and explosives.This further proves that the conspirators were maintaining secrecy and theactions on 12.03.1993 were a result of a pre-planned agreement between theconspirators.Confessional Statement of Feroz @ Akram Amani Malik (A-39) Confessional statement of A-39 under Section 15 of TADA has beenrecorded on 19.04.1993 (22:30 hrs.) and on 23.04.1993 (20:50 hrs.) by Mr.P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said accusedreferred to the role of the appellant (A-16) as follows:

i) A-16 had received training in the use of arms and ammunitions and handling of bombs in Pakistan.

ii) The trainees were told that they have to place the bombs in the trains in Bombay and explode them to cause harm to Hindus and also that whatever they were doing, they were doing it for Islam.The confessional statement of A-39 establishes that the conspirators werewell aware of the motive of the conspiracy and had become a part of it andwere also fully aware of the consequences of their actions. The trainingwhich was imparted to them was for the purpose of causing destruction inBombay. It is conclusively established from this confession that all theaccused who went for training in Pakistan were fully aware of theconspiracy and its motive.Confessional Statement of Nasim Ashraf Sherali Barmare (A-49) Confessional statement of A-49 under Section 15 of TADA has beenrecorded on 16.05.1993 (09:30 hrs.) and on 18.05.1993 by Shri Krishan LalBishnoi (PW-193), the then DCP, Zone III, Bombay. The said accusedreferred to the role of the appellant (A-16) and said that A-16 joined himwith his assumed name as 'Faizal' in Pakistan and received training inusing pistols, AK-56 rifles, machine guns, hand grenades, RDX, detonators,pencil timers etc.Confessional Statement of Salim Rahim Shaikh (A-52) Confessional statement of A-52 under Section 15 of TADA has beenrecorded on 15.04.1993 and on 18.04.1993 by Mr. P.D. Pawar (PW-185), thethen DCP, Zone V, Bombay. The said accused also referred to theinvolvement of the appellant (A-16) in the conspiracy at various stages.From the statement of A-52, the following facts emerge regarding theappellant which are as follows:

i) On 11.02.1993, he along with the appellant and others left Bombay and reached Dubai.

ii) On 12.02.1993, he along with others stayed in a building opposite to Hotel Al-Khaleez where Tiger Memon met them.

iii) On 13.02.1993, he along with the appellant attended the meeting in the same building in which Javed Chikna and Tiger Memon talked about the communal riots of Bombay and Gujarat.

iv) On 14.02.1993, he along with other accused left Dubai and reached Islamabad where they were taken to the training camp and were given training in firing arms, handling LMG rifles, throwing of hand grenades, use of RDX, detonators and timer pencils. He further stated as follows: "We were given the training of firing with Pistol. The pistol was loaded with one magazine. We were taught about opening and assembling of LMG. We were taught about firing with LMG rifles. Fourth day, we learnt about firing of rifles. Thereafter, we were given the training of throwing hand grenades. There were two persons for our training, one was Pathan and another was aged 50 years. Both were about 45-50 years old."

v) A-52 also stated that they were told about 'black soap named RDX'. vi) A-52 further explained about the object and the motive of the training. He stated as follows: "Tiger also came there on the seventh day of our training. He also took training. He told all of us "Take good training, you have to do good work in Bombay as per this training." During the last two days, the training of hand grenades with weight, without weight and with detonators was given. We were also told about black soaps named RDX. Time pencil was also shown. The red coloured pencil used to burst in 15 minutes and the white coloured pencil used to burst in one hour and the green coloured pencil used to burst in 2 and a half hours. We threw that pencils by using detonators." (Emphasis supplied)

vii) On 28.02.1993, at Dubai, he had taken oath along with all the other members by placing their hands over Quran for not disclosing anything about the training to anyone and to take revenge for the loss caused to their persons. He further stated: "They had also given us the oath of causing loss to those persons who had caused loss to our persons and burnt them in Bombay."

viii) On 03.03.1993, he along with the appellant and other co-accused left Dubai and reached Bombay.

ix) After returning from Dubai, on the 3rd day, the conspirators met at the house of Babloo. All those who received training in Pakistan were present in the meeting. In this meeting, it was decided that the blasts in Bombay would be caused after Ramzan.

x) All the trainees, along with other co-accused attended a meeting in a flat at Bandra where they were divided in groups by Tiger Memon. xi) On 11.03.1993, at night, A-16 along with other co-accused was present in the garage of the Al-Hussaini building, i.e. at the residence of Tiger Memon where the vehicles were loaded with RDX for causing bomb blasts.This confession further proves the fact of training in Pakistan and thatthe accused went to Pakistan via Dubai. It also proves the extent oftraining that was given. The taking of oath on holy Quran has also beenproved. It also establishes the motive of the conspirators which was tocause destruction and havoc in achieving their ultimate goal. He alsostated about the meetings that took place at the house of Babloo and at aflat in Bandra after the conspirators returned from Dubai. He also provedthat the appellant (A-16) was present in the Al Hussaini Building when thevehicle bombs were being prepared. Confessional Statement of Shaikh Ali Shaikh Umar (A-57) Confessional statement of A-57 under Section 15 of TADA has beenrecorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),the then DCP, Zone III, Bombay. A-57 went to meet Javed Chikna on08/09.02.1993 at the Soda Factory. He said that at that time, Usman,Nasir, Farooq and some other people were also present there. This incidentwas related to meeting before the landing at Shekhadi.Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64) Confessional statement of A-64 under Section 15 of TADA has beenrecorded on 22.01.1995 and on 24.01.1995 by H.C. Singh (PW-474),Superintendent of Police, CBI/SPE/STF, New Delhi. The said accusedreferred to the role of the appellant (A-16) in his confession as follows:

i) He described the meeting near Soda Factory wherefrom all the participants (including A-16) went for the first landing at Shekhadi. ii) On the way to Shekhadi, the accused stopped at a place where Abdul Gani had brought a black coloured bag which contained five AK-47/AK- 56 rifles, revolver, magazines and cartridges. iii) Around 60-70 large packets were smuggled by them. iv) After the second landing, he transported smuggled arms and explosives from Hotel Persian Darbar to Mumbra with the appellant (A-16). On the way, the conversation between the Tiger Memon and his associates revealed that the arms were to be used to take revenge against the demolition of Babri Masjid. These arms were to be used against Hindus. The wires brought in his jeep to Waghani Tower were to be used in the bomb blasts at Bombay. v) A-16 was present at the Al Hussaini Building during the preparation of vehicle bombs in the night of 11/12.03.1993 by using RDX which had landed at Shekhadi. vi) A-16 was seen going to the Al-Hussaini compound in the morning of 12.03.1993 wearing a white uniform as a driver. The said confessional statement proves that the appellant (A-16) was involved in the landings which took place in Shekhadi. It is also established that the motive of the conspiracy was known to the conspirators and the claim/contention of the appellant that the motive was not known to them is without any basis. The statement also further established that the appellant was present at the Al Hussaini building on the night when the RDX was being filled in the vehicles for their preparation as vehicle bombs.Confessional Statement of Md. Rafiq Usman Shaikh (A-94) Confessional statement of A-94 under Section 15 of TADA has beenrecorded on 14.05.1993 (18:30 hrs.) and on 16.05.1993 by Krishan LalBishnoi (PW-193), the then DCP, Zone III, Bombay. The said accusedreferred to the role of the appellant (A-16) as follows: i) A-94 told about the presence of the appellant when they were waiting to go to Pakistan for training. ii) On 14.03.1993, A-16 met A-94 and told him that the bomb blasts have been caused by Tiger Memon. He told Rafiq to escape to Mumbra with him and, accordingly, both of them went to Mumbra.

iii) A-16 also told A-94 that he had parked the white Ambassador Car which was laden with RDX/explosives at Air India Building.

(iv) A-94 and A-16 were arrested by the police. A-94, in his confession stated that the police had come to his house along with the appellant.Confessional Statement of Niyaz Mohammed @ Aslam Iqbal Ahmed Shaikh (A-98) Confessional statement of A-98 under Section 15 of TADA has beenrecorded on 17.05.1993 (14:30 hrs.) and on 20.05.1993 (11:30 hrs.) byKrishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The saidaccused referred to the role of the appellant (A-16) as follows:

(i) A-98 admitted that he had received training in handling of differenttypes of arms and ammunitions, hand grenades and making of bombs by usingRDX. He said that A-16 also took training with him in Pakistan. Hefurther stated as follows: "The training included P.T. and exercise from 7:00-8:00 hrs and from 9:00 a.m. to 1:00 p.m. dismantling, reassembling and manner of firing of pistols AK-56 rifles, LMG etc. After 3-4 days, seven boys had also joined whose names were Javed Chikna alias Ali, Usman alias Nasir, Farooq alias Faizal, Zabir alias Shakir, Salim alias Mujahid, Parvez alias Qureshi and Salim Driver alias Irfan. They had their training together with us During the training period they also gave the training in hand grenades, RDX, detonators, safety fuse, Electric Detonators and Timer Pencil. They told us on black-board about making of a bomb by using RDX. After 1-2 days there came a bearded person with Ahmedbhai. All the other boys were calling that bearded man as Tiger. He got the details of the training for 2 days."(ii) On 01.03.1993, after reaching Dubai, A-16, who had gone for trainingat the instance of Tiger took an oath by placing his hands on Quran. Aspeech was given by Tiger regarding the riots in Bombay and about takingrevenge. The confession of A-98 along with that of A-52 proves that the accusedknew about the black soap which is an explosive viz., RDX. It isestablished beyond doubt that during the training, the accused were taughthow to use the detonators, hand grenades, timer pencils as well as RDX.The confessional statement further establishes that the accused were taughthow to make bombs using RDX.Confessional Statement of Mohd. Parvez Zulfikar Qureshi (A-100) Confessional statement of A-100 under Section 15 of TADA has beenrecorded on 15.04.1993 (23:30 hrs.) and on 17.04.1993 (17:00 hrs.), bySanjay Pandey (PW-492), the then DCP, Zone VIII, Bombay. The said accusedreferred to the role of the appellant (A-16) as follows:

i) He disclosed the participation of the appellant in the landing of smuggled items of Tiger Memon on 09.02.1993 at Shekhadi coast and thereafter in transportation of the said consignment to Waghani Tower and other places.

ii) He participated in the training of fire arms and ammunitions at Islamabad, Pakistan alongwith his associates during February 1993.

iii) On 02.03.1993, he 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.

(iv) He was present at the residence of Tiger Memon in the night of 11/12.03.1993 alongwith other co-accused when the explosives were being filled in the vehicles which were brought for the said purpose.

410) From the confessional statements made by different co-accused, thefollowing facts emerge:

i) A-16 had gone for training in handling weapons and explosives to Pakistan via Dubai along with other accused.

ii) A-16 was given fake name as 'Faizal' which was used in Pakistan while training.

iii) A-16 was fully aware of the conspiratorial design and the plan to cause blasts and destruction in the city of Bombay at a large scale; iv) A-16 knew that this was an act of retaliation by the conspirators and he was one of them; v) A-16 had also participated in the landing of explosives and weapons at Shekhadi;

vi) A-16 had attended various meetings between the conspirators;

vii) A-16 was present at the time of filling of RDX/Black chemical in the vehicles at Al Hussaini Building;

viii) A-16 had taken oath on holy Quran that he would cause destruction and loss to the Hindu community as a revenge for what had happened on 06.12.1992 (demolition of Babri Masjid) and in the riots that ensued; ix) A-16 was responsible for taking the explosives laden vehicle to the Air India Building and the Shiv Sena Bhawan (Lucky Petrol Pump) and causing death and destruction.From the above, it can easily be inferred that A-16 was fully aware andconscious of the fact that their actions were of such a nature that theyhad to keep the conspiracy a secret and the activities done by them weregrave.

Taking of oath on Quran shows their intent and determination tocause damage and destruction. Their sole aim was to terrorise the peopleof the country by causing massive and extensive damage to the financialcapital of the country and to destabilize the Government of India. Fromthe above confession, it is evident that he had no trace of remorse for theactions committed by him. The very fact that when the appellant fled fromBombay, he also suggested A-94 to do the same which shows theirincriminating post incident conduct. Hence, it is clear that the appellantwas well aware of the consequences of his action and played an importantrole in the conspiracy. We have already held that a voluntary and truthfulconfessional statement recorded under Section 15 of TADA requires nocorroboration.Retracted Confessions:

411) It has been contended that all the confessions relied upon againstthe appellant including his own confession have been retracted andtherefore, they are not trustworthy. Since the very same objection hasalready been considered and rejected, we are not repeating the same onceagain. The said conclusion is applicable to these appeals also.Deposition of Prosecution Witnesses:Deposition of Mohammed Usman Jan Khan (PW-2) (Approver)

412) PW-2, the approver, has also deposed against the appellant. We havegone through the portion relating to A-16. The deposition of PW-2 withregard to the involvement of A-16 is summarized hereinbelow:

(i) He knew Md. Farooq Mohammed Yusuf Pawale as Farooq Pawale (A-16).

(ii) He identified the appellant in the identification parade.

(iii) On 09.02.1993, he met A-16 at the Soda Factory along with other co- accused and went to Waghani Tower where the goods brought in the cars were unpacked by them.

(iv) The gunny bags contained AK-56 rifles, its rounds, hand grenades, pistols, magazines and RDX, i.e, 'Kala Sabun'. All these items were then kept in the cavities of the jeeps. A box of detonators was also there.

(v) On 10.02.1993, the appellant went to Hotel Persian Darbar along with Tiger Memon.(vi) The appellant (A-16) also accompanied the approver and other co- accused to Pakistan for training in handling of arms and ammunitions and explosives.

(vii) In the training, they were taught how to operate and use AK-56 rifles, pistols, hand grenades and use of RDX for preparing bomb. They were explained that the RDX could be used for exploding and blowing off the bridges, trains, dams etc. They were also shown timer pencils, detonators of different colours which could ignite RDX bombs from a period of half an hour to five hours and were told how to use them. In the evening time, classes were held and they were explained things on black board and were also instructed about rocket launcher but were not given firing practice of the same.

(viii) The appellant (A-16) was present in the meeting at Babloo's residence which took place on 08.03.1993 wherein the targets for the explosions were selected and finalised.(ix) Tiger had called A-16 and two other people in a room to talk to them separately.

(x) A-16 was present in the meeting at the residence of Tiger Memon at Al Hussaini Building on 11/12.03.1993.

(xi) PW-2, along with the appellant, took the white coloured Maruti 800 car (laden with RDX) and parked it near the Shiv Sena Bhawan/Lucky Petrol Pump.

(xii) A-16 had altercations with a Hawaldar (Constable) as well as with an employee of the Lucky Petrol Pump regarding the parking of the said car. This fact has been corroborated by the testimony of the prosecution witness.

413) Learned counsel for the appellant placed reliance on para 74 of thedeposition of the approver in support of her contention that the accusedwas only a pawn and was following the directions of his masters. Para 74reads as under:- "After talking to Tiger Memon on telephone, Javed Chikna and all of us came downstairs. We met Farooq Pawale (A-16). Javed Chikna instructed Farooq Pawale to take one Maruti Car 800 to Shiv Sena Bhawan, Dadar and park it near Shiv Sena Bhawan, Dadar. Farooq Pawale requested me to accompany him. I accompanied Farooq Pawale in the white coloured Maruti 800 car, I drove the Maruti Car to Shiv Sena Bhawan. The white coloured Maruti 800 car was filled with RDX. We were told to park the white coloured Maruti Car near Shiv Sena Bhawan to blow it up."A-16 participated in the landing and transportation of arms and ammunitionsand explosives which were smuggled into India at Shekhadi in February,1993. He visited Pakistan via Dubai for receiving training in handling ofarms and ammunitions and explosives from the agents of ISI to committerrorist acts in India. He attended conspiratorial meetings during themonth of March 1993 at the residence of Babloo @ Nazir Anwar Shaikh andMobina @ Baya Musa Bhiwandiwala (A-96) for making plans to commit terroristact.

414) He also participated along with other co-conspirators in loading theexplosives like RDX fitted with time device detonators in various vehiclesduring preparation of vehicle bombs in the intervening night between11/12th March, 1993. He surveyed and conducted reconaissence of the StockExchange Building and Air India Building on 10.03.1993 for causingexplosions there. Therefore, it is established that the appellant was wellaware of the conspiracy right from the inception and also of theconsequences of his acts.

415) It is evidently clear from the participation of A-16 in all theimportant events and his presence in the conspiratorial meetings that hewas an integral part of the conspiracy and knew everything about it. Itwas not the case that he was merely following the instructions. Thetestimony of the approver corroborates the confession of the accused aswell as confessions of other co-accused in all material particulars. Theapprover was one of the conspirators and he was a party to all thelandings, meetings, training and also went to plant the explosives ladenvehicle at the Shiv Sena Bhawan. The account of the conspiratorialmeetings, training and other events is reliable and fits in to the chain ofevents which has already been established by the confessions of variousaccused.Other WitnessesDeposition of Ishwar Haralkar (PW-11)

416) PW-11 was a service man at Lucky Petrol Pump. He deposed that whilehe was on duty on 12.03.1993, at 2 p.m., the driver (PW-2) of a whitecoloured Maruti 800 car stopped in front of the service station. He furtherdeposed as follows:(i) PW-11 refused to allow the driver to park the car there as it had not come for servicing in the station. There was an altercation between PW-11 with the person (A-16) sitting next to the driver. Ultimately, PW-2 parked the said car towards the direction of Shiv Shahi Chawl at the side of petrol pump and left it there. After half an hour, PW-11 heard the sound of a big explosion and saw that the said Maruti Car had exploded. He noticed that there was fire and massive damage to the vehicles standing nearby. The cement roof of the service station blown up and fell on him. He was injured and went to the doctor. He noticed complete damage to the service station and the petrol pump.(ii) PW-11 identified PW-2 in the identification parade dated 11.05.1993 conducted by the Special Executive Magistrate, Ram S Bhosale (PW-460) and he again identified PW-2 as well as A-16 in the identification parade dated 23.05.1993 conducted by SEM Moreshwar Thakur (PW-469).(iii) The witness also identified the appellant (A-16) in the Court.

417) It has been contended by the counsel for the appellant that theperson (A-16) sitting next to the driver got off before the white colouredMaruti 800 car was parked at the side of the Lucky Petrol Pump. On thebasis of this, the counsel submitted that A-16 was not responsible for theblast that took place at the Petrol Pump. It is submitted that even thoughthe accused (A-16) was not the last person to leave the car but mostcertainly he went with the other person who was driving the car (PW-2) toplant the bomb at the said Petrol Pump. It is further submitted that A-16had to get down from the car only because PW-11 did not permit the parkingof the vehicle in front of the said Pump. A-16 had gone along with PW-2 tothe place where the incident took place for the purpose of planting thevehicle.

418) It has also been contended on behalf of the appellant that the heightof A-16 has not been recorded and so PW-11 is not a reliable witness. Itwas submitted by the counsel that the witness has stated: "My statement recorded on 12.03.1993 was read over and explained to me after it came to be recorded and found that it was correctly recorded. (The attention of the witness is drawn to his statement dated 12.03.1993). In my statement recorded by the Police on 12.03.1993 there is no mention of the height of the person who was sitting by the side of the driver. I cannot assign any reason why it is not recorded. According to me the colour complexion of a person would be important in describing him. In case of the person whom I noticed sitting by the side of the driver in the Maruti Car on 12.03.1993, his colour complexion was important feature and not his shortness."Therefore, in view of the above statement, the witness was conscious of thefact that the height was not recorded in the earlier statement. It wassubmitted from the side of the prosecution that for identifying theaccused, it was not his height which was important but it was his colourand complexion which was important.

419) The witness has further deposed that the statement was read over tohim and he found it to be correct. It cannot be contended by the appellantthat merely because the height of the accused was not mentioned in theearlier statement, the witness is unreliable. PW-11 has, in fact,identified the accused A-16 and therefore his testimony is reliable. Itwas further contended on behalf of the appellant that since PW-11 was aninjured witness, the doctor who treated him should have been examined andhis non-examination would result in discrediting the witness.

420) The witness has given accurate description of the accused and theapprover has identified them. The testimony of the witness is corroboratedby the evidence given by the accused, the approver and other witnesses. Itis also mentioned in his statement that he did not suffer any bleedinginjuries. Since the witness was not seriously injured, there was no needfor him to be admitted in a hospital and for the Investigating Officer toexamine any doctor in this regard. Hence, the contention of the appellantis without any basis.Deposition of S.S. Hande (PW-12) PW-12 was a police constable attached to Dadar Police Station. On12.03.1993, he along with PC 13196 was on duty at the Shiv Sena Bhawan. Heis an eye-witness to the incident. PW-12 deposed as under:

(i) Around 2 p.m., PW-12 had an altercation with A-16 who was sitting next to the driver (PW-2) of white coloured Maruti Car with regard to the parking of car near Shiv Sena Bhawan. The driver (PW-2) took the car away from there and ultimately parked it near the compound wall of service station after some discussion with an employee of the Lucky Petrol Pump. After parking the vehicle, both A-16 and PW-2 left the place.

(ii) He further deposed that after sometime an explosion occurred and there was lot of smoke in the area and many vehicles and buildings were damaged.(iii) PW-12 identified PW-2 and A-16 in the identification parade dated 23.05.1993 conducted by SEM Moreshwar Thakur (PW-469) who prepared the memorandum Panchnama Exh. 1519 for the same.(iv) The witness also identified the appellant (A-16) in the Court.It was submitted by the counsel for the appellant that this witness hasdeposed that A-16 had an altercation with him regarding parking of car.Thereafter, he saw them talking to an employee of the Lucky Petrol Pump.After some time, the person sitting next to the driver got down from thecar. Here again, it was contended that A-16 was not there until the carwas parked and so he was not responsible for the blast that took place atthe Lucky Petrol Pump. In view of the above, it is contended that eventhough he did not finally park the car, his intention was to cause theblast and he got down from it only because of the altercation. A-16 was anequal participant in the planting of the car at the place of the blast.

421) Learned counsel for the appellant has placed para No. 5 in which theaccused has been identified by the witness and paragraph No. 8 where thedistinguishing marks on the face of the accused have been described by thewitness. This supports the case of the prosecution that the eye-witnesshas correctly identified the accused and, therefore, the accused can beplaced at the scene of crime on the date and time of the incident.However, the counsel has not pointed out para No. 312 from the statement ofPW-2 which reads as "I told Farooq Pawale to get down and go ahead andengage a Taxi for us, as stated in my evidence before the Court." It isthus established that the testimony of the witness is reliable and also thefact that the accused had gone to the site of the explosion along with PW-2in the car in which the explosion took place. The evidence given by PWs 11and 12 corroborate the evidence given by the accused himself and theapprover.

422) Learned counsel for the appellant also submitted that PWs 11, 12 and2 have given different versions of the story which are contradictory andthus their statements cannot be relied on. The statements of all thewitnesses and the confession of the accused, if read as a whole, do notgive any contradictory or conflicting account, in fact, they corroborateeach other.Deposition of Jagannath B. Patil (PW-668) PW-668 was a Police Officer who visited the said Petrol Pump after theblast in the presence of two panch witnesses Sudhakar Kadam and Kallapa. Hedrew a panchnama and seized ten Articles, viz., Articles 549-A (colly) to558-A (colly) in and around the site of explosion. These articles includedburnt pieces of tar, burnt pieces of wood and mud from the ditch createddue to the explosion. PW-668 also collected samples/Articles videPanchnama Exh. 2460 in the presence of Panch Witness Kiran PadhrinathDeshmukh (PW-666). A Panchnama was prepared in respect of articles takenby the Assistant Chemical Analysers from the site of the blast near ShivSena Bhavan in Dadar.Deposition of Anil Kumar V. Kamat (PW-669) PW-669 was the person who sent articles like burnt pieces of bones,skull, branches of trees, etc. to the FSL for its opinion and has alsodeposed about the injuries to the persons and the deaths of the persons onaccount of explosion at Lucky Petrol Pump. The reports sent by the FSLconfirm the traces of RDX which were present in the objects collected fromthe scene of the blast.Deposition of Fazal Fruitwala (PW-363) PW-363 was a Car Broker. In July, 1990, Salim Abdul Gani Gazi (AA)had approached him for purchasing a new white coloured Maruti 800 car. PW-363 inquired with Shakil Hasam of Auto Links. He informed Salim Gani thatthe car was available. As asked by Shakil Suleman on 12.07.1990, thedelivery order was taken from M/s Sai Service Station. The car was in thename of the original purchaser Sultan Ali. On the same day, at 7 p.m.,Salim Gani had paid Rs. 1,40,000/- inclusive of brokerage. PW-363 hadasked Salim Gani to take delivery from Daman Stockyard. After deductingthe brokerage, PW-363 sent the price of the car to Shakeel Hasam. Thevehicle, i.e., the white Maruti Car used for the explosion was purchased bySalim Abdul Gani Gazi (AA) in July, 1990 through PW-363 and Shakeel S.Hasam (PW-366). The car was given Registration No. MH-03-A-2143. Theregistration of the car was done under a fictitious name which is proved bythe evidence of PW-329 who was a postman in the concerned locality.Deposition of Sadanand S. Paradkar (PW-329) PW-329 was a Postman and was in the service of Ghatkopar Rajawadi PostOffice in the year 1993. It was deposed by him that Garodia Nagar did nothave any building by name of Manohar Apartment and, hence, there was noquestion of any person by name Sultan Ali residing in Flat No. 8, on thesecond floor of the said building. His deposition proves that theregistration of the car was done under a false identity.Deposition of Sudhakar D. Kadam (PW-445) PW-445 was a petrol-filler at the Lucky Petrol Pump. On 12.03.1993,at 5 p.m., he went to the petrol pump as he was posted in the second shift,i.e., from 5 p.m. to 12 a.m. He found that the atmosphere was smoky; theroof of the service station was missing; the petrol pump was partly burntand the articles and parked vehicles were partly or fully burnt. There wasa big hole on the 2nd floor wall of the building. He further deposed thatdamage was also caused to the buildings behind the petrol pump and thingsin its vicinity. He also gave the information regarding the situation ofpetrol pump and its vicinity in the presence of panchas. He furtherdeposed that the police had correctly drawn the Panchnama Exh. 1431 dated12.03.1993.Injured Witnesses:

423) It was pointed out that around 50 people suffered injuries due to theexplosion which took place at the Shiv Sena Bhawan/Lucky Petrol Pump.The following witnesses have deposed about the injuries suffered by them onaccount of the explosion at the Lucky Petrol Pump on 12.03.1993: i) Sudhir Shankar Chandrorkar (PW-408) - sustained bleeding injuries due to the pieces of iron which had pierced into his body at various places.

ii) Lallan S. Pandey (PW-409) - suffered various bleeding injuries and his left leg had to be amputated from the thigh region, and

(iii) Ankush K. Sawant - (PW-308) - suffered bleeding injuries due to striking of plastic splinter on his left thigh.The following doctors have deposed with respect to the injuries suffered bythe aforestated injured witnesses:

i) Dr. Vijay Madhav Deshmukh - (PW-631) - He is the person who prepared the Medical Certificate for PW-408. ii) Dr. sunil Raghunath Rai - (PW-633) - He is the person who prepared the Medical Certificates for PWs 409 and 308.The said witnesses (doctors) proved to have issued the medical certificatesExh. 2348 in respect of the above mentioned injuries.The following claimants have claimed the dead bodies of their son (ShriJohn Thomas) and cousin sister (Smt. Mamta Surendra Pilankar) respectivelywho died on account of the explosion at Lucky Petrol Pump:

i) Thomas Itiyavira Modabamkunnel - (PW-427) and; (ii) Nitin Vasant Parkar - PW-410Four persons died in the blast that took place at Shiv Sena Bhawan.Kishore L. Sawant PW-568 - has prepared the Accidental Death Reports (ADRs)in respect of the two deceased persons. i) Exh. 1967 - ADR No. 19/93 in respect of death of Smt. Mamta Surendra Pilankar, cousin sister of Shri Nitin Vasant Parkar (PW- 410). ii) Exh. 1971 - ADR No. 42/93 in respect of death of Shri John Thomas, son of Shri Thomas Itiyavira Modabamkunnel (PW-427).The doctors who prepared the Death Report Certificates in respect of thedeceased are:

i) Dr. Walter G. Vaz (PW-476) - prepared the death certificate of John Thomas son of Thomas Itiyavira Modabamkunnel (PW-427); ii) Dr. Anand P. Desai (PW-477) - prepared the death certificate of Mamta Surendra Pilankar who was the cousin sister of Nitin V. Parkar (PW-410).The articles seized from the scene of the blast that took place at ShivSena Bhawan were sent to the Forensic Science Laboratory for opinion videExh. 2447 and Exh. 2469. The FSL Reports received in respect of the saidletters are Exh. 2447-A and Exh. 2448. The reports prove that the articlesfound at the scene contained traces of Highly Explosive substance 'RDX'.It was further found that the clothes were stained with human blood and hadtraces of RDX as well. The aforesaid evidence establishes the fact thatthe appellant planted the vehicle bomb at the site of the explosion andmassive damage was caused to life and property due to his actions.Witnesses regarding the incident at the Air India Building:Deposition of Vilas Vyankatesh Kulkarni (PW-10)

424) He is an eye-witness to the incident. He deposed with respect to theexplosion at Air India Building and the Ambassador car which explodedcausing damage.

i) He was the owner of MAFCO Farm Fair Shop. On 12.03.1993, at about 12 noon, while going to his shop, he noticed a white coloured ambassador car bearing No. MH -9622 parked abutting the footpath and opposite to the footpath at the rear gate of Bank of Oman. In the tunnel, the driver alighted from the car and locked it. He stood near the car and at the same time noticed another Contessa Car entering the tunnel from the eastern side in reversed position.

ii) He also saw a blue coloured Maruti-800 car stopped 5 to 6 feet away from him and the person sitting by the side of the driver called the driver of the white coloured Ambassador. They then left together in a blue coloured Maruti 800 car.

iii) Around 2:40 to 2:45 p.m., PW-10 reported hearing a deafening sound from the Air India Building. He saw the white Ambassador car 5 to 6 feet up in the air. He also noticed black smoke rising from the tunnel and heard falling of glass pieces. After 15 minutes, he saw a big crater formed at the place where the white coloured Ambassador Car was parked. iv) He also reported that many people were injured and died in the said incident. His shop was also badly damaged and his employees, viz., Ganesh and Joginder sustained minor injuries.

v) He identified A-16 in the identification parade dated 09.04.1993 conducted by the SEM (PW-462) and again he identified A-16 in the identification parade dated 14.05.1993 conducted by the SEM PW-469.

vi) He also identified the photographs of the appellant which were marked as Article Nos. 7 and 8 in the parade dated 15.06.1993 conducted by SEM PW-469.

425) It was submitted by the counsel for the appellant (A-16) afterreading paragraph Nos. 7, 8 and 14 of his deposition that witness was notable to identify the accused even after giving more chances to identify theaccused. It was furher contended that there being only one eye-witness,who also could not identify the accused, hence, there is no other eye-witness in the case. It is pointed out that the witness had wronglyidentified A-16. It is submitted that the witness understood his mistakeand informed that he had wrongly identified the accused. It is relevant tomention that the incident took place on 12.03.1993 and the identificationwas held in the court on 11.10.1995, i.e., after a period of two years, andtherefore, the witness could not identify A-16. This cannot be taken todiscredit the other facts which have been accurately described by him. Thewitness had identified the appellant when the parade was conducted by theSEM, however, it is only due to lapse of time that he could not identifythe accused again.Deposition of Fuldas Yadav Bhoye (PW-321) PW-321 was a PSI with Cuffe Parade Police Station at the time of theincident. He deposed regarding the damage caused to life and property atthe scene of the blast. He deposed as follows:

(i) On 12.03.1993, at 3 p.m., he along with PI Chaudhary and other staff had been to the Air India Building. He found two cars burning in front of the Bank of Oman.

(ii) He further stated in his deposition that the entire atmosphere was surrounded with dense smoke and a crater of size 8x7 feet had been created in the porch.

(iii) The flooring of the first underground floor also had a similar crater and the second underground floor was visible through the craters that had been formed.

(iv) The building of the Bank of Oman had been fully destroyed and there was substantial damage to the offices of Air India, Mauritius and Singapore Airlines.

(v) He further deposed that three cars bearing registration numbers BLL- 904, MH-01-M-5039 and BLN-2933 and motor taxi bearing registration no. MMT-3075 were completely burnt, leaving behind only the chassis.

(vi) The cars parked on the porch of Air India building were also damaged.

(vii) Six dead bodies were removed and sent to the JJ Hospital with the help of firemen.

(viii) The injured were taken to GT Hospital and the Bombay Hospital.Deposition of N. Venkatramni (PW-376) He was the Engineer-in-charge of Air India Building situated at Nariman Point, Bombay. He found that there was extensive damage caused toAir India Building after the blast that occurred in front of the saidbuilding.

He along with other engineers inspected the site. Theyappointed specialized valuers 'M/s Sunil Vora & Associates' forascertaining the damage caused to the building. The valuers visited thebuilding in April 1993 and gave a report estimating the damage to be to thetune of Rs. 1 crore 51 lakhs.Deposition of Abbas Husseini Rangwala (PW-377) He was working with the Bank of Oman at the time of the incident.

Hedeposed as follows:

(i) On 12.03.1993, at 2.40 p.m., he heard a big sound like bomb explosion and the ceiling and glass panels fell down. The furniture was damaged, computers worth Rs. 10 lakhs were damaged, air conditioning system was totally damaged and two vehicles belonging to the bank which were parked in the tunnel were fully damaged causing loss of Rs. 6 lakhs.

(ii) The bank lost about Rs. 2 lakhs 96 thousand due to sudden interruption in banking operations.

(iii) Twelve employees of the bank were injured, out of which 2 ladies succumbed to death. In addition, 3-4 customers of the Bank were also injured. Three persons from RBI sustained injuries and later succumbed to death.

(iv) The Bank appointed M/s Bhatavedekar & Co., specialised valuers, to ascertain the damage caused. The report of the valuers assessed the damage to be to the tune of Rs. 50 lakhs.Other witnesses:

426) The number of injured people in the blast which took place at the AirIndia Building was 84 and 20 people had died in the said incident. Thefollowing injured persons have deposed as witnesses who were present insidethe Air India building when the blast took place:

(i) Purshottam Narhar Karmarkar (PW-404)(ii) Madhav Pundalik Patkar (PW-405)(iii) Sadashiv Gopal Pendse (PW-407)Their deposition may be summarized as under:

(i) At 2.45 p.m., while waiting for lift in the lobby of Air India building, they heard the sound of a big explosion which was followed by a black out.

(ii) The false ceiling of the lobby collapsed and fell on them.

(iii) PW-404 sustained injury in his leg.

(iv) PWs 405 and 407 sustained multiple injuries from splinter glasses also. They were frightened and immediately left the building.

(v) Glass splinters pierced on the right side of the body of PW-405 who was later admitted in Bombay Hospital and discharged on 18.03.1993. PW-404 and PW-407 were admitted in the casualty ward of JJ Hospital and were later shifted to the Hinduja Hospital. PW-404 was discharged on 22/23rd March, 1993 and 3-4 days after that PW-405 was discharged.The testimonies of these witnesses proves the fact that the impact of theblast was massive, causing exponential loss to life and property.

Thesepeople were present at the scene of the incident and received injuries dueto the blast which occurred at the Air India Building. The people insidethe building were also hurt by the blast and huge loss was caused to theproperty.Deposition of Dr. Sanjay Rajendra Agarwala (PW-653) He was the doctor at Hinduja Hospital and deposed regarding theinjuries sustained by PW-404 who was admitted in the said hospital on13.03.1993. He deposed that the victim had seven to eight injuries; hismajor injuries included a fracture of left elbow sustained in bomb blastoccurred on 12.03.1993. He had to be operated on and was treated anddischarged on 24.03.1993. He was again admitted on 02.05.1993 and wasdischarged on 05.05.1993 after treatment and removal of foreign body'granuloma' from the ring finger of his right hand and the metacarpelregion of neck.Deposition of Dr. Rajaram Amrut Bhalerao (PW-646) He was the doctor at Hinduja Hospital and has deposed regarding PW-407who was brought to the casualty centre of the said hospital on 13.03.1993.

He deposed that the injured was having one major injury towards right sideof the neck and multiple abrasions on the neck and face and had sufferedloss of blood.Deposition of Dr. Rajkumar Patil (PW-635) He was the doctor at Bombay Hospital and has deposed regarding PW-405. He deposed that the injured witness was brought to the Bombay Hospital on12.03.1993 and examined by one Dr. Gupta. He was admitted in a place wherearrangements were made for victims of bomb blasts that had occurred at theBombay Stock Exchange, Air India Building and Zaveri Bazaar. Dr. Patilreported that PW-405 had been treated at the hospital and was discharged on19.03.1993.Depositions of Sandeep Prakash Bafna (PW-194) and Prakash Sanchalal Bafna(PW-247) At the relevant time, both were working with Hindustan Motors and HeroHonda Motors respectively. In the month of January, 1993, Gulam Rasool (A-58) of Ujjain (M.P.) had taken the delivery of an Ambassador car for Rs.1,84,466/- from Hindustan Motors whose temporary Registration No. was MH-20-TR-622.

This booking was made through 'Sulebhai' (Suleman Lakdawala (PW-365)) of Petrol Pump at Byculla and Shakeel Suleman of Auto Links. PW-194identified the photograph (Article 377-A) of Gulam Rasool in theidentification parade held at Police Head Quarters conducted by SEM ShriVichare (PW-247) and also identified the photograph (Article 382-B) in anidentification parade held at the office of DCB, CID conducted by SEM PW-469. Thus, the place from where the car was purchased was located and thewitness identified the person who had bought the car.Deposition of Suleman Lakdawala (PW-365) PW-365 deposed that Shafi Zariwala (AA) told him that he requiredthree new Commander Jeeps bearing Registration Number of Gujarat Stateduring February/March 1993. PW-365 contacted Shakeel Suleman Hasham, whoinformed that the cars with Registration No. of Madhya Pradesh wereavailable. Shafi (AA) agreed to buy those cars. Suleman Lakdawala alsoarranged for one white ambassador car for Shafi. This would further beestablished by the evidence of PW-366.Deposition of Shakeel Suleman Hashan (PW-366) In his deposition, he stated that he (PW-366) introduced PW-365 withthe car agency by name 'Kailash Agencies'. PW-365 taken the said car fromthe said agency and delivered it to Shafi Zariwala (AA).Deposition of Mukhtar Imdad Ahmed PW-281 PW-281 deposed that he had been asked by Shafi (AA) to preparecavities in between the rear seat and fuel tank of the white Ambassador carbearing Registration No. MH-2Q-TR-622.

It is pointed out that it was thiscar which was used to cause the explosion outside the Air India building.It is further pointed out that all these witnesses prove that the car whichwas used by the appellant for the blast was bought by the other co-accused. It has been established that Shafi Zariwala was a close associate of TigerMemon. The depositions of these witnesses establish the link between allthe evidence leading to the appellant (A-16) and the incident of explosionthat took place on 12.03.1993.Deposition of Ashok Budhavale (PW-614) PW-614 was working in the Worli Police Station as an API in the year1993. It was contended that the police officer did not remember whether hehad made entries in the station diaries while taking the accused out forTIP and while bringing them back.

It was also contended that his seniorofficer PI Pharande had not given him any written orders for taking theaccused out of the custody and so the TIP is vitiated as the procedure wasnot followed. It is relevant to note regarding the entries to be made inthe diary that the officer had deposed that he did not recollect whether hehad made the entry or not and with respect to the communication between theAPI and the PI, it is pointed out that the API had received oralinstructions from his superior and there was no requirement of any writtenorders.Deposition of Madhukar Baburao Gathade (PW-535) In the year 1993, he was attached as a PI with DCB, CID, Unit IX. Inhis deposition, he mentioned that he did not remember as to how manyletters of sanctions were sent to him by the District Magistrate. Thecounsel for the appellant submitted that he did not grant any sanction andeven if he did, the sanction was not granted on due application of mind bythe District Magistrate. It is pointed out that the deposition of thewitness was made on 06.12.1999, i.e., six and a half years after theincident. It is not possible for all the witnesses to remember all thedetails of all the events that took place during the trial.

It is furthersubmitted that the investigating officer had written a letter to theDistrict Magistrate explaining the circumstances in which his sanction wassought to prosecute under the provisions of the Explosive Substances Act.Deposition of Ramalingam Nadar (PW-349) PW-349 acted as a panch witness in the search that was conducted atthe house of A-16. It was submitted by the counsel for the appellant thatthe witness did not know English and the statement and panchnama wererecorded in English and the driving licence was also in the Englishlanguage. It is pointed out that the witness deposed that the document wasexplained to him in Hindi and he found the contents to be true. Thecontention of the counsel for the appellant stands negatived.Deposition of Nagesh Lohar (PW-356) PW-356 was working with Unit-I of DCB, CID and went to the house of A-16 when the search was made.

It was submitted by the counsel for theappellant that no personal search of the members of the raiding party wasconducted by the panch witness when they went to search the house of A-16.The witness deposed that a personal search was conducted; however, he didnot record it in the panchnama due to oversight. He deposed that he didnot realize that it had to be recorded till the time he was questioned forit.Deposition of Rajan Dhoble (PW-585) In the year 1993, he was attached with DCB, CID, Unit-I as a PI. Thecounsel for the appellant submitted that the same person was acting as awitness in investigation taking place at two places of incident, i.e., AirIndia Building and the Stock Exchange and, hence, was not a reliablewitness. It is pointed out by the other side that there is no prohibitionthat a Police Inspector cannot investigate two matters at the same time.Evidence of Witness regarding the incident at the Stock Exchange:Deposition of Ashok Kamble (PW-24)

427) PW-24 was a Security Guard at the Bombay Stock Exchange Building. Heis an eye-witness to the incident. His deposition revealed that on10.03.1993, the appellant along with other accused persons had entered theStock Exchange Building for parking the said red coloured Maruti 1000 car.PW-24 identified A-16 in the Court at the time of his deposition as well asin the TIP dated 11.05.1993 and 08.06.1993 conducted by SEMs PW-458 and PW-469 respectively. In view of the above, it was submitted that thedeposition of PW-24 establishes that the appellant had been to the StockExchange Building prior to the blasts for the purpose of surveying thetargets.Deposition of Brijmohan Mehra (PW-458) PW-458 was the SEM who conducted the TIP with regard to the accused A-16 for PW-24. It was submitted by the counsel for the appellant that theSEM was neither aware of the guidelines nor he had seen the Rules framed bythe High Court of Judicature of Bombay regarding the precautions to betaken by a person conducting the TIP. It is relevant to note that theGovernment of Maharashtra had not issued as such any guidelines but hadgiven the draft memorandum for Identification Parade. Therefore, it isestablished that the procedure which was required to be followed was knownto the SEM and he had conducted it in accordance with the same.

428) A perusal of the entire evidence above establishes the guilt of theappellant (A-16). The confession of the appellant gives the detail of allthe important events that took place during the time when the conspiracywas in its nascent stage. The appellant (A-16) was involved in the landingof arms and ammunitions and explosives; he went to Pakistan for training inusing arms and making explosives; attended crucial conspiratorial meetings;went to survey the targets; was also present in the meeting when thetargets were being finalized; and in addition to all these actions, heplanted explosives laden vehicles at two locations and went to survey thethird location.

429) All these events have been narrated by the co-accused also and thepresence of the appellant has been narrated in the confessions of many co-accused including the ones who were an integral part of the plan. Theevidence given by the approver and eye-witnesses also corroborate the factthat the appellant had planted explosives at two locations and had surveyedthe third place.

430) The evidence of the approver, the eye-witnesses, experts and otherwitnesses above clearly establish the involvement of A-16 in the explosionsthat took place at the Stock Exchange building, Air India building and theShiv Sena Bhawan. It is established that A-16 was an active member of theconspiracy which led to the blasts at various places in Bombay and causedmany deaths, injuries and loss to property.

431) The evidence given by the doctors and the family members of thedeceased show the extent of suffering that was inflicted by A-16 and theother accused in pursuance of the conspiracy. The quantity of RDX that wasused in the blasts clearly shows and establishes the fact that the blastswere intended to tear the economic, moral and social fabric of the nationand to induce communal tensions. The involvement of the appellant in theentire conspiracy establishes the critical role played by him in the blast.

432) In view of the above said confessional statement of the appellant (A-16), the confessional statements of other co-accused persons, as also theeye-witnesses along with other witnesses duly examined, the prosecution hasproduced sufficient evidence against the appellant to bring home thecharges framed against him.

TERRORISM:

433) The term "terrorism" is a concept that is commonly and widely used ineveryday parlance and is derived from the Latin word "Terror" which meansthe state of intense fear and submission to it. There is no particularform of terror, hence, anything intended to create terror in the minds ofgeneral public in order to endanger the lives of the members and damage topublic property may be termed as a terrorist act and a manifestation ofterrorism. Black's law dictionary defines terrorism as "the use of threator violence to intimidate or cause panic, esp. as a means of affectingpolitical conduct" (8th edition, page 1512).

434) Terrorism is a global phenomenon in today's world and India is one ofthe worst victims of terrorist acts. Terrorism has a long history of beingused to achieve political, religious and ideological objectives. Acts ofterrorism can range from threats to actual assassinations, kidnappings,airline hijackings, bomb scares, car bombs, building explosions, mailing ofdangerous materials, computer-based attacks and the use of chemical,biological, and nuclear weapons-weapons of mass destruction (WMD).

435) The fight against terrorism requires a concerted and multifacetedstrategy at both the domestic and international levels and should involve alegal order which itself needs to be updated and elaborated upon and shouldhence be turned into a practical tool. There exist several domestic andinternational legislations to counter terrorism. The Terrorist andDisruptive Activities (Prevention) Act, 1985 (Act 31 of 1985) whichreceived the assent of the President on May 23, 1985 and was published inthe Gazette of India, Extra., Part II, Section 1, dated May 23, 1985, cameinto force on May 24, 1985 in the whole of India for a period of two years.The Statement of Objects and Reasons of the said Act reads as follows: "Prefatory Note - Statement of Objects and Reasons.- Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous crimes mostly in Punjab and Chandigarh. Since the 10th May, 1985, the terrorists have expanded their activities to other parts of the country, i.e. Delhi, Haryana, Uttar Pradesh and Rajasthan as a result of which several innocent lives have been lost and many suffered serious injuries. In planting of explosive devices in trains, buses and public places, the object to terrorise, to create fear and panic in the minds of citizens and to disrupt communal peace and harmony is clearly discernible. This is a new and overt phase of terrorism which requires to be taken serious note of and dealt with effectively and expeditiously. The alarming increase in disruptive activities is also a matter of serious concern.

"436) The Bill as introduced sought to make provisions for combating themenace of terrorists and disruptionists, inter alia, to- (a) provide for deterrent punishment for terrorist acts and disruptive activities; (b) confer on the Central Government adequate powers to make such rules as may be necessary or expedient for the prevention of, and for coping with, terrorist acts and disruptive activities; and (c) provide for the constitution of Designated Courts for the speedy and expeditious trial of offences under the proposed legislation.

437) The said Act No. 31 of 1985 was due to expire on May 23, 1987 and inorder to combat and cope with terrorist and disruptive activitieseffectively and to strengthen it further, the Terrorist and DisruptiveActivities (Prevention) Act, 1987 (Act 28 of 1987) was enacted. Since boththe Houses of Parliament were not in session and it was necessary to takeimmediate action, the President promulgated the Terrorist and DisruptiveActivities (Prevention) Ordinance, 1987 (2 of 1987) on May 23, 1987 whichcame into force w.e.f. May 24, 1987. However, this Act repealing theOrdinance, received the assent of the President of India on September 3,1987 and was published in the Gazette of India, Extra., Part II, Section 1,dated September 3, 1987. The scheme of the Act 31 of 1985 and Act 28 of1987 as reflected from their preambles is the same. The scheme of thespecial provisions of these two Acts were/are "for the prevention of, andfor coping with, terrorist and disruptive activities and for mattersconnected therewith or incidental thereto". International Conventions

438) There also exist several International Conventions, which aim tosuppress terrorism and define terrorist acts. The League of Nations tookthe initiative to formulate the first Global Convention on PreventingTerrorism and, accordingly, adopted the 1937 Convention for the Preventionand Punishment of Terrorism, which defined "acts of terrorism" as: "Criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons, a group of persons or the general public.

"439) More recently, several International Conventions and MultilateralAgreements have been entered into by States to curb global terrorism. TheInternational Convention for the Suppression of Terrorist Bombings, 1997defines the offence of "terrorist bombing" as follows: "Article 2.1 - Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place or public use, a State or government facility, a public transportation system or an infrastructure facility: a) With the intent to cause death or serious bodily injury; or b) With the intent to cause extensive destruction of such a place, facility or system, where such a destruction results in or is likely to result in major economic loss.

"440) The United Nations Security Council in its 2004 Resolution denounced"terrorist acts" as follows: "criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature."India's Contribution in Combating Terrorism

441) India has played a major part in strengthening internationalconsensus against terrorism in UN, Non-Aligned Movement (NAM) and SouthAsian Association for Regional Cooperation (SAARC). India is a party tomajor international conventions against terrorism and has also incorporatedthem in domestic legislation. These conventions and treaties condemnterrorist acts and expressly state the grave concern posed by terrorism.Terror Attacks

442) Another trend common to both national and international terrorism isthe emergence of terrorist groups motivated by religious fanaticism.Whenever the perpetrators are motivated by religious fanaticism or hadsecular goals and beliefs, they become susceptible to the idea ofsacrificing their own life for carrying out the will of God, or Allah or inwaging a 'holy war'. It is important to note here that terrorism isabhorred and condemned by all the religions of the world. Terroristsconduct planned and coordinated attacks targeting innocent civilians with aview to infuse terror in the minds of people. India, particularly, hasbeen a victim on several occasions. An indicative list of recent terroristattacks on India as furnished by learned senior counsel for the CBI isprovided below:

S.No.	Date of Attack	Place of Attack	No. of Bomb Blasts	No. of Persons killed
1	12.03.1993	Bombay	13	257
2	14.02.1998	Coimbatore	13	46
3	13.12.2001	New Delhi	-	9
4	25.09.2002	Akshardham	-	29
5	06.12.2002	Mumbai (Ghatkopar)	-	2
6	25.08.2003	Mumbai (Zaveri Bazaar)	-	50
7	29.10.2005	Delhi	3	60
8	11.07.2006	Mumbai (Local trains)	-	209
9	25.08.2007	Hyderabad	2	42
10	23.11.2007	Lucknow, Varanasi, Faizabad	-	18
11	13.05.2008	Jaipur	9	63
12	25.07.2008	Bangalore	9	2
13	26.07.2008	Ahmedabad	21	56
14	13.09.2008	Delhi	5	30
15	26.11.2008	Mumbai	-	172
16	13.02.2010	Pune	-	17
17	13.07.2011	Mumbai	3	26
18	07.09.2011	Delhi ( outside Delhi High Court)	1	12
19	13.02.2012	Delhi (Israeli Embassy Official's car)	Injured Persons
			4

443) Terrorist attacks are not only limited to India but several terroristattacks have also been taken place in countries around the world.Following is a list of select terrorist attacks outside India:

S.No.	Date of Attack	Place of Attack	No. of Bomb Blasts	No. of Persons killed
1	11.09.2001	NY and Washington DC, USA	4	Nearly 3000
2	12.10.2002	Bali, Indonesia	3	202
3	11.03.2004	Madrid, Spain	10	191
4	07.07.2005	London, England	4	52

444) The Supreme Court of India has also explained the term 'terrorism' ina series of cases. Provided below are summaries of key cases on terrorism.In Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors., (1994) 4SCC 602, one of the key questions for consideration of this Court was inrelation to the applicability of Section 3(1) of TADA. This Court heldthat while offences mentioned in Section 3 of TADA may overlap withoffences mentioned in other statutes, a charge under Section 3 should bemade where the offence was committed with the intention as envisaged inSection 3. This Court further observed: "7. 'Terrorism' is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society. 'Terrorism' has not been defined under TADA nor is it possible to give a precise definition of 'terrorism' or lay down what constitutes 'terrorism'. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or "terrorise" people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. A 'terrorist' activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. Experience has shown us that 'terrorism' is generally an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon " (emphasis supplied)

445) Girdhari Parmanand Vadhava vs. State of Maharashtra, (1996) 11 SCC179 relates to kidnapping of a boy for ransom and on non-payment of thesame, the accused persons tortured and killed the boy. The DesignatedCourt convicted the accused and awarded life sentence. While adjudicatingthe appeal, it was contended by counsel for the accused persons before thisCourt that kidnapping is not a terrorist activity within the meaning of theprovisions of TADA. This Court, while affirming the conviction and thatthe offence committed was a terrorist act, held as under: "39. A crime even if perpetrated with extreme brutality may not constitute "terrorist activity" within the meaning of Section 3(1) of TADA. For constituting "terrorist activity" under Section 3(1) of TADA, the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in the said Section 3(1). Terrorist activity is not confined to unlawful activity or crime committed against an individual or individuals but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity, social and communal harmony, disturbing or destabilising public administration and threatening security and integrity of the country It is the impact of the crime and its fallout on the society and the potentiality of such crime in producing fear in the minds of the people or a section of the people which makes a crime, a terrorist activity under Section 3(1) of TADA. In our view, in the facts of the case, the learned Designated Judge has rightly convicted the accused for offences under Section 3(1) of TADA besides convicting each of them under Section 120-B and Section 302 read with Section 120-B of the IPC." (emphasis supplied)446) In State through Superintendent of Police, CBI/SIT vs. Nalini & Ors.,(1999) 5 SCC 253, this Court, while adjudicating the convictions of severalaccused persons in the case for assassination of Mr. Rajiv Gandhi, formerPrime Minister of India, spelt out the ingredients of an offence underSection 3(1) of TADA as follows: "650. A perusal of the provision (Section 3(1)), extracted above, shows that it embodies the principle expressed in the maxim "actus non facit reum, nisi mens sit rea"; both "mens rea" and a criminal act are the ingredients of the definition of "terrorist act". The mens rea required is the intention (i) to overawe the Government as by law established; or (ii) to strike terror in the people or any section of the people; or (iii) to alienate any section of the people; or (iv) to adversely affect the harmony amongst different sections of the people. The actus reus should comprise of doing any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community, or detaining any person and threatening to kill or injure such persons in order to compel the Government or any other person to do or abstain from doing any act." (emphasis supplied)

447) In Mohd. Khalid vs. State of West Bengal, (2002) 7 SCC 334, whileaffirming the decision in appeal, this Court held that it is difficult todefine terrorism in precise terms and acknowledged that terrorism is athreat to global peace and security. This Court further observed as under: "42. It is not possible to define the expression 'terrorism' in precise terms. It is derived from the word 'terror'. As the Statement of Objects and Reasons leading to enactment of the TADA is concerned, reference to the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as the 'Old Act') is necessary. It appears that the intended object of the said Act was to deal with persons responsible for escalation of terrorist activities in many parts of the country. It was expected that it would be possible to control the menace within a period of two years, and life of the Act was restricted to the period of two years fro the date of its commencement.

But noticing the continuance of menace, that too on a larger scale TADA has been enacted. Menace of terrorism is not restricted to our country, and it has become a matter of international concern and the attacks on the World Trade Center and other places on 11th September, 2001 amply show it. Attack on the Parliament on 13th December, 2001 shows how grim the situation is, TADA is applied as an extreme measure when police fails to tackle with the situation under the ordinary penal law. Whether the criminal act was committed with an intention to strike terror in the people or section of people would depend upon the facts of each case." (emphasis supplied)448) Nazir Khan & Ors. vs. State of Delhi, (2003) 8 SCC 461 pertains toprosecution of accused persons involved in kidnapping of foreign nationalsand killing of police officers during combat.

While the mastermind of thisterrorist operation was subsequently released by the government in exchangefor passengers held as hostages in the hijacked Indian Airlines Flight IC814, the other accused persons were tried for offences punishable under theIPC and TADA. This Court, while hearing their appeals, challenging thejudgment of Designated TADA Court, which had awarded death and lifesentences to certain accused persons, made detailed observations about thenature of terrorist activities and attempted to define terrorism and heldas under: "13 . As noted at the outset, it is not possible to precisely define "terrorism". Finding a definition of "terrorism" has haunted countries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the convention drafted in 1937 never came into existence. The UN Member States still have no agreed-upon definition. Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present twelve piecemeal conventions and protocols.

The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures. Cynics have often commented that one State's "terrorist" is another State's "freedom fighter". If terrorism is defined strictly in terms of attacks on non-military targets, a number of attacks on military installations and soldiers' residences could not be included in the statistics. In order to cut through the Gordian definitional knot, terrorism expert A. Schmid suggested in 1992 in a report for the then UN Crime Branch that it might be a good idea to take the existing consensus on what constitutes a "war crime" as a point of departure. If the core of war crimes - deliberate attacks on civilians, hostage-taking and the killing of prisoners - is extended to peacetime, we could simply define acts of terrorism as "peacetime equivalents of war crimes". (emphasis added) 14. League of Nations Convention (1937): "All criminal acts directed against a State along with intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public." (GA Res. No. 51/210: Measures to eliminate international terrorism) 1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed.

2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstances unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them. 3. Short legal definition proposed by A.P. Schmid to the United Nations Crime Branch (1992): Act of Terrorism = Peacetime Equivalent of War Crime 4. Academic Consensus Definition: "Terrorism is an anxiety-inspiring of repeated violent action, employed by (semi-) clandestine individuals, groups or State actors, for idiosyncratic, criminal or political reasons, whereby - in contrast to assassination - the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat-and violence-based communication processes between terrorist (organization), (imperilled) victims, and main targets are used to manipulate the main target [audience(s)], turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought." (Schmid, 1988) Definitions 15. Terrorism by nature is difficult to define. Acts of terrorism conjure emotional responses in the victims (those hurt by the violence and those affected by the fear) as well as in the practitioners. Even the US Government cannot agree on one single definition of uniform and universal application. The old adage, "One man's terrorist is another man's freedom fighter" is still alive and well. Listed below are several definitions of terrorism used by the Federal Bureau of Investigation: Terrorism is the use or threatened use of force designed to bring about political change. Brian Jenkins Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targeted. Walter Laqueur Terrorism is the premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience. James M. Poland Terrorism is the unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a government, individuals or groups, or to modify their behavior or politics. Vice-President's Task Force, 1986 Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives. FBI definition" (emphasis supplied)

449) In Madan Singh vs. State of Bihar, (2004) 4 SCC 622 this Court upheldthe conviction and sentence awarded by the Designated Court in respect ofaccused persons who had killed several police officers in combat. Whileaffirming that the offence committed was rightly charged under Section 3 ofTADA, this Court observed in detail in respect of terrorist activities andheld as follows: "19. Terrorism is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised and orderly society It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb the harmony of the society or "terrorise" people and the society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquillity of the society and create a sense of fear and insecurity.

"450) In People's Union for Civil Liberties and Anr. vs. Union of India,(2004) 9 SCC 580, the constitutional validity of various provisions of thePrevention of Terrorism Act, 2002 ("POTA") were challenged. Whileupholding the constitutional validity of POTA, this Court discusseddomestic and international authorities on terrorism and observed that:

"6. In all acts of terrorism, it is mainly the psychological element that distinguishes it from other political offences, which are invariably accompanied with violence and disorder. Fear is induced not merely by making civilians the direct targets of violence but also by exposing them to a sense of insecurity .

8. All these terrorist strikes have certain common features. They could be very broadly grouped into three:

1. Attack on the institution of democracy, which is the very basis of our country (by attacking Parliament, Legislative Assembly etc.). And the attack on economic system by targeting economic nerve centres.

2. Attack on symbols of national pride and on security/strategic installations (e.g. Red Fort, military installations and camps, radio stations etc.).

3. Attack on civilians to generate terror and fear psychosis among the general populace. The attack at worshipping places to injure sentiments and to whip communal passions. These are designed to position the people against the Government by creating a feeling of insecurity.

9. Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather, it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together. Therefore, terrorism is a new challenge for law enforcement. By indulging in terrorist activities organised groups or individuals, trained, inspired and supported by fundamentalists and anti-Indian elements are trying to destabilise the country. This new breed of menace was hitherto unheard of. Terrorism is definitely a criminal act, but it is much more than mere criminality. Today the Government is charged with the duty of protecting the unity, integrity, secularism and sovereignty of India from terrorists, both from outside and within the borders. To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws. In the abovesaid circumstances Parliament felt that a new anti-terrorism law is necessary for a better future. This parliamentary resolve is epitomised in POTA.

451) Terrorism is a major problem that is reoccurring over the globe inmany different forms. In short, terrorism is a plague for a nation orsociety that should be eradicated. There is a dire need to best deal withit and to make sure to take preventive actions so that other groups andpeople are not motivated to make themselves heard through various acts ofterrorism. In our considered view, the following procedures/rules musthave to be adopted while dealing with it:-

i) Better governance and law enforcement is the real need of the hour.

ii) We must formulate long term as well as short term strategies to combat terrorism.

iii) More advanced technologies must be used for communication among law enforcement agencies.

iv) Fighting terrorism would require a long term planning and sustained multi-dimensional action.

v) There should be proper coordination between all the agencies with high level of motivation and a quick response system must be established to tackle the menace immediately.

vi) Rule of Law must always be upheld and it is the duty of the constitutional authority to defend the life and limb of its subjects.India being a secular State, such religious fanaticism which resulted insuch terrorist acts should not be allowed to destroy the very basicstructure of our Constitution. Unless every one of us put our sincereefforts to fight terrorism, we will not be able to curb this menace.Role of Pakistan in the Blasts:

452) It is devastating to state that Pakistan being a member of the UnitedNations, whose primary object is to maintain international peace andsecurity, has infringed the recognized principles under international lawwhich obligate all states to prevent terrorist attacks emanating from theirterritory and inflicting injuries to other states. This duty to preventacts of terrorism stems from the basic principle of sovereignty, whichentails both rights and obligations. Under the 'Universal NeighbouringPrinciples', it is well established that the rights of one state end wherethe territory of another state begins. An obvious source of this obligationlies in Article 2(4) of the UN Charter, which embodies the customary law of"prohibiting states from using or threatening to use force against anotherstate". A host-state that has the capability to prevent a terrorist attackbut fails to do so will inherently fail in fulfilling its duty underArticle 2(4) since terrorism amounts to force by definition.

453) In the relevant scenario, the accused arrived in Pakistan fortraining and they were received by ISI operatives who took them out of theairport without observing any immigration formalities. Meaning thereby,they had a green channel entry and exist in Pakistan. Another confessionreveals that they received training from the ISI officials themselves onsome occasions. These events unveil the tolerance and encouragement shownby Pakistan towards terrorism.

454) An effective anti-terrorism campaign will require a substantialstrengthening of the international regime of state responsibility.Presently, there are several documents adopted under the aegis of the UNand various multilateral treaties emphatically promote all states to worktogether urgently to bring to justice the perpetrators, organizers or thoseharbouring the perpetrators, organizers and sponsors will also be heldaccountable.

455) In the light of the Para 2 of the UNSC Resolution No. 1373 adoptedunder Chapter VII of the UN Charter, every State has the followingobligations to perform:-

(a) Every State should refrain from providing any form of support, activeor passive, to entities or persons involved in terrorist acts, including bysuppressing recruitment of members of terrorist groups and eliminating thesupply of weapons to terrorists.

(b) Take necessary steps to prevent the commission of terrorist acts,including by provision of early warning to other States by exchange ofinformation.

(c) Deny safe haven to those who finance, plan, support, or committerrorist acts, or provide safe heavens.

(d) Prevent those who finance, plan, facilitate or commit terrorist actsfrom using their respective territories for those purposes against otherStates or their citizens.

(e) Every such person supporting terrorist acts should be brought tojustice and it must be ensured that, in addition to any other measurestaken against them, the punishment awarded duly reflects the seriousness ofsuch terrorist acts.

(f) Afford one another the greatest measure of assistance in connectionwith criminal investigations or criminal proceedings including assistancein obtaining evidence in their possession necessary for the proceedings.

(g) Prevent the movement of terrorists or terrorist groups by effectiveborder controls and controls on issuance of identity papers and traveldocuments, and thorough measures for preventing counterfeiting, forgery orfraudulent use of identity papers and travel documents.

456) With regard to the facts available in the case at hand, the roleattributed by the neighbouring State can be summarized as under:-

(1) A large number of convicted accused and absconders have received training in making of bombs by using RDX and other explosives, handling of sophisticated automatic weapons like AK-56 Rifles and handling of hand grenades in Pakistan.

(2) A-92, A-95, A-108 and A-115 received weapons training in Pakistan in January, 1993. During the same period, five absconding accused persons also received training in Pakistan. Confessional statements of A-92, A- 95, A-115 and A-134 prove these facts.

(3) The arrangement for their training was made by Dawood Ibrahim (AA), Anees Ibrahim, Mohd. Dossa, A-136 and Salim Bismillah Khan (since deceased).

(4) PW-1 and PW-2 in their depositions before the Court and A-16, A-29, A- 32, A-36, A-39, A-49, A-52, A-64, A-77, A-94, A-98 and A-100 in their confessional statements have stated that during February 1993 the accused persons were sent, in batches, from Bombay to Dubai and Dubai to Islamabad, where they were given training by ISI/Army Personnel in different camps.

(5) The above said persons were taken to Dubai from where they were taken to Islamabad Airport and were received by ISI operatives, who took them out of the Islamabad Airport without observing any immigration formalities after completion of training.(6) No immigration formalities were observed when they left Islamabad for Dubai.

(7) Some of the passports seized during investigation carry two arrival stamps of Dubai but the details of their journey during the intervening period are not reflected in the passports.

(8) Pakistan took precautions not to bring its involvement on record.

(9) A-58, A-88, A-109, A-114, A-126, A-127, A-128, A-129, A-130 and A-135 were taken to Dubai for sending them to Pakistan but arrangements could not be made for their training in Pakistan. Hence, they had to return from Dubai.

457) A careful reading of the confessional statements of convicted accusedexposes that large number of accused including the absconders receivedtraining in making of bombs by using RDX and other explosives, handling ofsophisticated automatic weapons like AK-56 Rifles and handling of handgrenades in Pakistan which was organized and methodically carried out byDawood Ibrahim (AA), Anees Ibrahim, Mohd Dossa and Salim Bismillah Khan(since deceased). The training received in Pakistan materialized in theunfortunate serial blasts in Bombay, India on 12th March 1993. Aresponsible state owes an obligation not only to another state but also tothe international community as a whole. We sincerely hope that every Statewill strive towards the same.Role of Police Officers:

458) In a civilized era, every country is governed by Rule of Law and theprimary concern of the Rule of law is promotion of human rights of thepeople and protection of their civil, political, social, economic andcultural rights. The Constitution of our country has entrusted substantialduty to the impartial police department for safeguarding and upholding ruleof law; whose essential duty is to preserve peace and maintain order in thesociety.

459) The role of police officials has become more vital in the presentcentury owing to the frequent terror attacks occurring across the country.Terrorism is spreading across the border and there is increasing relianceon explosive devices to spread terror. It is important to take note ofincreasing use of explosive devices by the terrorists not only because oftheir high damage potential but also due to their easy mobility. Explosivedevices can be manufactured, transported, handled and fitted with a varietyof unsuspecting objects multiplying their potential manifold. Thus, thepolice have a specific and special role, a duty and a responsibility, tocurb the conveyance of explosives by vigilant patrolling and search andseizure, if required. Section 20 of the Arms Act, 1959 empowers them toarrest persons conveying any arms or ammunitions under suspiciouscircumstances.

460) Unfortunately, in the present case the police officers themselveshave taken active part in smuggling and transportation of arms andexplosives in Bombay.

461) The twin duties of police are prevention of crime and maintenance oflaw and order. If crimes are prevented in time, the human rights of thepeople will be protected to a large extent. If the Bombay police officialshad been able to curtail the conveyance of the contraband in January andFebruary 1993, the occurrence of 12th March 1993 could have been avoided.

462) With regard to the facts and circumstances of the case in hand, therole played by police personnel of different ranks can be summarized asunder:-

(1) A-116, who was Sub. Inspector Incharge of Shreevardhan Police Station and had jurisdiction over Shekhadi and Dighi Jetty, where illegal landings of arms and explosives took places and 7 Constables, viz., A- 101, A-70, A-110, A-99, A-83, A-84 and A-87, posted in the same Police Station, connived and took active part in smuggling of arms and explosives at Dighi Jetty on 09.01.1993.

(2) Confessions of A-30, A-82, A-134 and A-136 as also the depositions of PW-94, PW-97, PW-158, PW-159, PW-160, PW-161, PW-162 and PW-167 prove their role in the said landing and transportation of smuggled arms etc.

(3) A-116, alongwith 7 Constables intercepted the convoy carrying smuggled contraband, on the night of 09.01.1993. A-116 held negotiations with A-134 and A-136 with the help and assistance of A-30 and Customs Officer Gurav (A-82) and permitted them to proceed after retaining five silver bricks as security against the payment of Rs. 10 lacs.

(4) The bribe amount was paid later on, to A-116, who released the five silver bricks.

(5) The said bribe amount was distributed among all the Police Personnel on two occasions to Mahasala Police Station, Shrivardan Police Station and Borali Outpost.

(6) Substantial amounts have been seized from each of the above noted Police Personnel during investigation.

(7) A-14 and A-17, in their confessions, have also deposed about the payment of bribe amount to A-116 for allowing the said landings.

463) As mentioned earlier, the police officials are the foundation for theexistence of the rule of law; if they collapse the whole system indeedbreaks down. Hence, they have sensitive responsibility to defend the safetyand security of the people at all times. Law empowers them with numerouspowers to prevent and control crimes like terrorism affecting internalsecurity. They should always remember that when they fail in their dutythey eventually fail the society as a whole.Role of Customs Officers:

464) The Customs officials primarily have a duty to prevent smuggling andensure that everything that enters into or goes out of the country isbrought or sent strictly in accordance with the provisions of the law forthe time being in force. They are entrusted with powers of search andseizure and conduct of on-spot investigations. But when the officer ofcustoms enters into or acquiesces in any agreement to abstain from doing orpermits, conceals or connives at any act whereby any fraudulent import isaffected, it can have a disastrous effect on country's security.

465) It is shattering to notice that all grades of customs officers,including the Commissioners of Customs played an active role as members ofconspiracy and implemented the plan. Every kind of smuggling activity isdevastating to the economy, but the smuggling of dangerous arms andammunitions causes wreckage not only to the economy but also to people'slives.

466) The occurrence of Bombay Bomb Blasts brings us to the reality thatsuch incidents take place along the Indian coastline irrespective of thenumerous laws and safeguards provided due to the lack of moral ethics andmisconduct on the part of the officials.

467) Custom being a significant source of government revenue, the officersof Customs Department must perform their respective duties honestly anddiligently. Any act or omission on their part can have devastatingconsequences. The role played by the Customs Officers in pursuance of theconspiracy can be summarized as under:-

(1) A-82, A-90, A-102, A-112 and A-113, who were the Customs Officers at the relevant time in Bombay and Alibaug, have played an active role as members of the conspiracy.

(2) A-112 attended a meeting with Mohd. Dossa (AA) in Hotel President, Bombay about 6 to 8 months prior to the bomb blasts and discussed their smuggling plans.

(3) Confessions of A-82, A-90 and A-113 as also confessions of co-accused A-134, A-136, A-14, A-17 and A-30 prove the role played by the Customs officers in the conspiracy.

(4) On 06.01.1993, A-102 and A-90, with some other customs staff members, attended a meeting at Hotel Parsian Darbar, Panvel with Mohd. Dossa (AA), A-134 and A-136, where the Customs Officers agreed to charge Rs. 7 to 8 lacs from Mohd. Dossa group for each landing.(5) On 08.01.1993, A-102 and A-90 were informed by A-134 and Firoz Abdul Rashid Khan that landing would take place in the night. [Firoz Abdul Rashid Khan was absconding and has since been arrested on 06.02.2010]

(6) A-82 played an important role in negotiations with Police Officers and A-116 and seven Constables when they intercepted the convoy carrying smuggled contraband on 09.01.1993. A-82 even permitted A-30 to drive a customs jeep when they went for negotiations.

(7) Collector Customs (PW-470), on receipt of information from DRI, through a DO letter dated 25.01.1993, conveyed to all the Customs Officers (accused) and others that the ISI Syndicates located in Middle East may try to smuggle contrabands and arms along with silver bricks in the districts of Bombay, Raigarh and Thane and instructed them to be more vigilant. PW-470 also gave instructions to A-112 and A- 102 in this regard.

(8) PW-172, Customs Inspector, received information of landing of silver at Mhasala on 29th, 30th and 31st Jan. 1993. He conveyed this information to A-112 for taking suitable action.

(9) A-112 deliberately kept a 'nakabandi' at the wrong place i.e. Puranphata and Dehanphata leaving one route open for the accused persons to carry the smuggled arms and explosives without any check.

(10) When the subordinate Customs Officers suggested to keep 'nakabandi' at proper place i.e. junction of Sai Mobra-Mangaon Road and Mahasala- Goregaon Road, A-112 informed them that he had specific information that Tiger Memon would bring the contraband goods from that route only. PW-172 had not told A-112 that landing would be organized by Tiger Memon.

(11) Landing of arms and explosives did take place on the night of 2nd and 3rd Feb. 1993. Tiger Memon and other accused participated in the landing.

(12) When the landing was being done, PW-171 (another Addl. Collector of Customs) received information about it and conveyed the same over phone to A-112. On getting information from PW-171, A-112 sent a misleading wireless message to Marine & Preventive, Srivardhan to keep a vigil at Bankot, which is miles away from the place of landing.

(13) When landing of arms and explosives was in progress at Shekhadi on the night of 02.02.1993, A-90 and A-82 reached the place of landing and met A-14 and Tiger Memon. They enquired from Tiger Memon whether the landing was for weapons. Tiger Memon replied in negative.

(14) Another landing took place on the night of 7th and 8th Feb. 1993. A large quantity of arms and explosives were smuggled during this landing also. Tiger Memon and other accused participated in this landing.

(15) A-14, A-17 and A-30 have also spoken about the payment of illegal gratifications to Customs Officers for the landings.

468) From the above, it will not be an overstatement to state that if notfor the help of the customs officials, they would not be in a position tosmuggle the weapons required for the said blasts. A rationally structuredand effective customs department is the need of the hour in order tocurtail illegal imports which can have frightening ramifications upon thenation's economy and citizens' security. Corruption among public servantsindicates a failure of our system where pursuit of personal gratificationsubdues public interest.Lack of vigilance in the Indian Maritime Zone and Indifference on the partof Coast Guards:

469) India being a maritime nation, the role of coast guards is very vitalfor shielding the coast from external attacks. The coastal belt is surveyedby three teams of officers firstly, the Indian Navy who is responsible foroverall seaward security of long coastline. Secondly, the coast guards whoguard the Exclusive Economic Zone (EEZ) in order to prevent poaching,smuggling and other illegal activities in the EEZ. Lastly, the customsofficials, who scrutinize and monitor every commodity which enters theIndian boundaries.

470) This triple-layered security system is created primarily to guard theIndian Coastline from maritime terrorism, piracy and to keep out foreignintruders. Hence, it is the paramount duty of all these officials to bevigilant, heedful and attentive to each activity which occurs in the seaand on the shore. However, the occurrence of Bombay Bomb Blasts on 12thMarch 1993 discloses the deficient performance of the officials.

471) Similarly, the Indian Coast Guard (ICG) was set up in 1978 asa paramilitary branch of the Indian Armed Forces primarily for surveillanceof the India's Exclusive Economic Zone to prevent poaching, smuggling andother illegal activities in the zone. The Coast Guards being the strongestlink in the security chain are bound to be vigilant at sea and should be infull command of the coast.

472) For the same, they are empowered to search and seize ships suspectedof illegal activities. Besides, Section 14 of the Coast Guard Act, 1978gives the ample scope for coast guards to assist the customs and otherauthorities in anti-smuggling operations necessary for protection of ourlong coastline.

473) As the perception of war is changing we should not overlook the roleand the significance of the coast guards and the customs officials incombating terrorism. The role of the coast guards is as important as anymilitary troops. Only well strategized coast guards and high morale customsofficers can prevent any opportunity for the terrorists to attack on ourcountry via our maritime boundary. Quantum of Sentence:

474) After meticulous examination of confessional statements of theaccused and the co-accused, the recoveries made, and other evidences itestablishes undoubtedly the guilt of all the death convicts.

475) Before we deliberate and decide upon the role played by each of theappellants and their respective sentence, certain reference to thecontextual developments over the epochs with regard to death sentence wouldbe timely, which will assist us in determining the sentence in this case.Evolvement of Law Relating to Death Sentence:

476) The constitutional validity of the death sentence has been broughtunder scrutiny from time to time to test the rationality of the deathsentence with the emerging civilization. Though death penalty as apunishment is not abolished as yet, significant amendments have beenbrought in for limiting the usage of the punishment. It is manifest fromthe bare reading of judgments on death penalty from 1950 to till date thatthe judiciary has always exercised its discretion in awarding this extremepenalty with great circumspection, caution and restraint. The nature ofthis discretion bestowed on judges has been considered and reflected in themost celebrated Bachan Singh case (supra) in the following terms:- "165 .Cognizant of the past experience of the administration of death penalty in India, Parliament, in its wisdom thought it best and safe to leave the imposition of this gravest punishment in gravest cases of murder, to the judicial discretion of the courts which are manned by persons of reason, experience and standing in the profession. The exercise of this sentencing discretion cannot be said to be untrammelled and unguided. It is exercised judicially in accordance with well-recognized principles crystallized by judicial decisions, directed along the broad contours of legislative policy towards the signposts enacted in Section 354(3)."The dictum in Bachan Singh case paraphrases that the duty casted upon thejudges in deciding the appropriate sentence is a matter of judiciousnessand not of law.

477) Earlier, Section 3(2) of the TADA Act, 1985 stipulated mandatorydeath sentence for a terrorist act, which results in death. The challengeto this provision was mounted on the ratio of Supreme Court decision inMithu vs. State of Punjab, (1983) 2 SCC 277 in which their Lordships struckdown Section 303 of the IPC as unconstitutional, which provided forcompulsory imposition of death sentence. As a result, the correspondingprovision of TADA Act had also provided for the alternative sentence oflife imprisonment thus bringing the provision in line with the provision of302 of IPC. Section 3(2)(i) of TADA now prescribes death or lifeimprisonment in alternative as the penalty for a terrorist act. It isnoticeable from the above transformation in the sentencing policy that thecourts were required upon to look into each and every case on its ownmerits, to determine the appropriate sentence for the offender.

478) While so, the Code of Criminal Procedure signposts the court as toits application. The changes, which the Code has undergone in the last fewdecades, clearly indicate that Parliament is taking note of contemporarycriminological thought and movement. For clarification, though TADA Act,1987 is a special act the application of the Code of Criminal Procedure ispermissible to the extent of its consistency with the act.

479) The very first case where the constitutional validity of capitalpunishment was vehemently discussed and decided was in Jagmohan Singh vs.State of U.P (1973) 1 SCC 20. This case was decided when the Code ofCriminal Procedure, 1898 (for short the old Code) was in force. Section367(5) of the old Code provided that if an accused person is convicted ofan offence punishable with death, but he is sentenced to a punishment otherthan death, the Court was required to state the reason why a sentence ofdeath was not passed.Section 367(5) of the old Code reads as follows:-

"If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed." Therefore, all the death penalty cases until 1973 were decidedaccording to the principle that death sentence was the rule and lifeimprisonment was the exception. However, after the new Code of CriminalProcedure, 1973 which came into force with effect from 1st April, 1974, theprinciple took a converse turn and it was stated that imprisonment for lifewould be the rule and a sentence of death was an exception.Amended section 354(3) of the Code reads as follows:-

"When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence." The Code effectively reversed the position as it existed under theold Code and also placed a rider that if a sentence of death is awarded,the court should record special reasons for awarding the same. As anoutcome, the discretion to impose the sentence of death has been curbed tothe extent of stating the 'Special reasons'. Presently, judges are leftwith the task of discovering the 'Special reasons'.

480) What are these 'Special Reasons' and does the provisions of the Codehelp us in discovery of these special reasons? A reference to Bishnu DeoShaw vs. State of West Bengal (1979) 3 SCC 714 case would be helpful tounderstand what actually are these special reasons refers to. Justice Chinnappa Reddy penning the judgment said as follows: "26 .Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors."It was further stated: "27 Criminal justice is not a computer machine.

It deals with complex human problems and diverse human beings. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think, learn and forget. Like the rest of us they too are the creatures of circumstance. Heredity, environment, home neighbourhood, upbringing, school, friends, associates, even casual acquaintances, the books that one reads, newspapers, radio and TV, the economics of the household, the opportunities provided by circumstances and the calamities resulting therefrom, the success and failure of one's undertakings, the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extra-ordinary incidents of life contribute to a person's personality and influence his conduct. Differently shaped and differently circumstanced individuals react differently in given situations. A Judge has to balance the personality of the offender with the circumstance, the situations and the reactions and choose the appropriate sentence to be imposed.

A judge must try to answer a myriad questions such as was the offence committed without premeditation or was it after due deliberation?

What was the motive for the crime?

Was it for gain?

Was it the outcome of a village feud?

Was it the result of a petty, drunken, street brawl, or a domestic bickering between a hapless husband and a helpless wife?

Was it due to sexual jealousy?

Was the murder committed under some stress, emotional or otherwise? What is the background of the offender?

What is his social and economic status?

What is the level of his education or intelligence?

Do his actions betray a particularly callous indifference towards the welfare of society or, on the other hand, do they show a great concern for humanity and are in fact inspired by sum concern?

Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society?

Or is he a person who is patently amenable to reform?

Well, may one exclaim with Prof. Vrij "What audacity is involved in these three tasks : to interpret life, explain an act, predict the latest inclination of a human mind."

'Special reasons', we may, therefore say, are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of Criminology and connected sciences. Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemption, having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment etc.

481) In brief, Justice Reddy said that 'Special Reasons' necessary forimposing death sentence must relate, not to the crime as such but to thecriminal. In the same line of thought in Rajendra Prasad vs. State of UP(1979) 3 SCC 646, this Court, by majority judgment, observed: "83 . 'Special reasons' necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking than other murders and yet the callous criminal, e.g. a lethal economic offender, may be jeopardizing societal existence by his act of murder. Likewise, a hardened murderer or dacoit or armed robber who kills' and relishes killing and raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psycho-therapy or curative techniques may deserve the terminal sentence. Society survives by security for ordinary life. If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand penalty dependent on the totality of circumstances.

"482) Subsequent decision, Dalbir Singh and Ors. vs. State of Punjab (1979)3 SCC 745 also endorsed this view.

483) Now, we have a clue as to what these Special Reasons are. The nextquestion that arises is:- Is there a comprehensive provision in thecriminal procedure code, which enunciates the mechanism for collection andpresentation of the social and personal data of the culprit to the extentrequired to decide the verdict on sentence?

484) There were no provisions as such until the Law Commission recommendedin its 48th report observing that:- "It is now being increasingly recognized that rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to characteristics and background of the offender. The aim of sentencing:--- Themselves abscure becomes all the more so in the absence of information on which the correctional process is to operate. The public as well as the courts themselves are in dark about judicial approach in this regard. We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to co-operate in the process.

"485) By enacting Sub-section (2) of 235, the Parliament has actuallyacceded to the recommendations of the Law Commission. Enactment of thisprovision is an act of affirming the new trend in penology, which mandatesthe courts to consider various factors such as the prior criminal record ofthe offender, his age, employment, educational background, home life,sobriety and social adjustment, emotional and mental condition, and theprospects of his returning to normal path of conformity with the law etc in deciding the quantum of sentence.

486) In this background of standards, the judiciary with the aid ofSection 235(2) ascertained the 'Special Reasons' pertaining to thecriminals as required by Section 354(3) of the Code to impose deathpenalty. Subsequently, the constitutional validity of Section 302 andthe sentencing procedure embodied in sub-section (3) of Section 354 of theCode was challenged before a Constitution Bench in Bachan Singh (supra)wherein the need for reconsideration of Jagmohan Singh (supra), was feltnecessitated due to subsequent events and changes in law. In addition, aquery was raised whether dictum in Rajendra Prasad (supra) that "specialreasons" necessary for imposing death penalty must relate not to the crimeas such, but to the criminal was warranted by the law or not.

487) The principal questions, which were considered, in this case are: I. Whether death penalty provided for the offence of murder in Section 302, Indian Penal Code is unconstitutional. II. If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Sec, 354(3) of the Cr.P.C., 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life. III. Whether the "special reasons" necessary for imposing the death penalty should relate to the criminal alone or even the crime.

488) The first main question was answered in negative, indicating that theconstitutional validity of death penalty was upheld in the line of JagmohanSingh (supra). The second question regarding the unguided and untrammelleddiscretion vested upon the judges to impose death sentence or imprisonmentfor life was answered in the following words:- "161. A study of the propositions set out above, will show that, in substance, the authority of none of them has been affected by the legislative changes since the decision in Jagmohan's case. According to the then extant CrPC both the alternative sentences provided in Section 302, Penal Code are normal sentences, and the Court can, therefore, after weighing the aggravating and mitigating circumstances of the particular case, in its discretion, impose either of those sentences. This postulate has now been modified by Section 354(3) which mandates the Court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are "special reasons" - to be recorded - for such sentence

"489) Accordingly, the second question was answered. With regard to thethird question regarding what constitutes "special reasons", the majorityview clarified that the expression "special reasons" will be in referenceto the crime as well as the criminal thereby overruling Rajendra Prasad(supra) and Bishnu Deo Shaw (supra). It reads as follows: "201. With great respect, we find ourselves unable to agree to this enunciation. As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the 'man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist." "163 The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302, Penal Code, the Court should not confine its consideration "principally" or merely to the circumstances connected with particular crime, but also give due consideration to the circumstances of the criminal.

"490) As a consequence, the majority view in Bachan Singh (supra), gave awider interpretation to the term "special reasons" by embracing within itsambit both the circumstances connected with the particular crime and thecriminal. Upshot of this interpretation is that the 'special reasons'required for confirming the death sentence under Section 302 or in thecontext of this case in Section 3(2)(i) of TADA will have to be identifiedby balancing the aggravating and mitigating or extenuating circumstances.

491) While determining the aggravating circumstances relative weight oughtto be given to both criminal and the crime and an identical approach mustbe adhered to for ascertaining the mitigating circumstances. Since thesetwo aspects are interwoven, it is difficult to segregate the two to statethat all circumstances relating to crime will be aggravating, likewise allcircumstances relating to criminal are mitigating. From the aboveconspectus, it is clear that the aggravating circumstances pertaining toboth crime and criminal are the reasons, which can be against the accused;likewise the mitigating circumstances marshaled from both crime andcriminal can be the reasons in favour of the accused.

492) For instance, the manner of commission of murder may not be brutal ordiabolic or pre-meditated. This can be construed as a mitigatingcircumstance pertaining to crime and not the criminal. Hence, a carefulevaluation of aggravating and mitigating circumstances pertaining to bothcriminal and crime is the approach to ascertain the special reasons forimposing the extreme penalty on a person.

493) Thus, the two cardinal factors, viz., one, the penalty imposed mustbe proportionate to the gravity of the crime and second, the degree ofresponsibility of the offender must be taken into account in determiningthe sentence for an individual accused in addition to aggravating andmitigating circumstances.

494) Now, straightaway we shall determine the sentence for theappellants within the boundaries prescribed by law, bearing in mind thepurpose of punishment and taking into account all circumstances influencingthe degree of severity (mitigating and aggravating circumstances) and, inparticular the degree of criminal responsibility.

495) For convenience, we shall discuss Yakub Abdul Razak Memon's appealdiscretely as against the other 10 appellants.Criminal Appeal No. 1728 of 2007Yakub Abdul Razak Memon (A-1) Before we shall enumerate the aggravating and mitigating circumstancesfor consideration on sentencing, we ought to find the degree ofresponsibility of A-1 for the occurrence of blasts on 12th March, 1993 incomparison with other appellants. Our legal system has always emphasizedthat the sentence shall reflect the relative significance of the accused'srole.

496) A-1 is the younger brother of Tiger Memon, (AA), who is one of themasterminds behind the blasts. A-1 was in a position of authority,particularly, had played a significant role in the context of the blastswhich is important while determining the sentence. The confessionalstatements of co-accused discussed in earlier part of judgment under A-1'sappeal establish the dominating position of the appellant in comparisonwith other 10 appellants.

497) At the cost of repetition, we may reiterate the conduct of A-1, whichmay be very relevant for ascertaining his dominant position in commissionof the crime.

498) The following conduct of the appellant (A-1) along with the co-conspirator family members may be relevant:-

a) The confessional statements of various co-accused make a mention that Tiger Memon has instructed them to stay in touch with A-1 for further instruction. Meaning thereby, A-1 assumed the role of Tiger Memon in India during his absence. As an outcome, Tiger Memon gave the commands to A-1, who in turn had passed them to other accused thereby signifying the trusted position that A-1 has obtained from Tiger Memon, apart from being just a younger brother.

b) Moreover, A-1's role was limited not only to the extent of correspondence between the masterminds and all other accused but he was also entrusted with task of handling the explosive bags and for their safe keeping, which is again revealed in the confessional statements of various co-accused persons.

c) Furthermore, he was actively involved in hawala transactions for the purpose of facilitating the blasts on 12th March 1993.

d) Besides, he acquired tickets both for Dubai and Pakistan for transporting the appellants to the respective places for the purpose of training and coaching them in envisaging their participation for the blasts in Bombay.

499) Essentially, A-1's deeds can't be viewed distinct from the act of Tiger Memon, hence, both owe an equivalent responsibility for the blasts. They were the architects of the blasts, without whom the plan would have never seen the daylight. From this conduct, it is not hyperbole to state that, he was one of the 'driving sprit' behind the plan of the 1993 blasts, whereas the other appellants played a far lesser role and thus a lesser contribution to the crimes resulting from this plan. To be clearer on the dominant position, the blasts on 12th March, 1993 was at the discretion of the masterminds, meaning thereby, they had the effective control over the incident. It is this effective control over the incident, which is absent in the role played by rest of the appellants.

500) Hence, there is a significant difference in the role played by A-1and the rest of the appellants. It is difficult to rule out with certaintythat if the absconding accused were to be brought to trial, they might havethrown further light at the role-played by A-1. Since A-1 as well as otherabsconders were the real conspirators who hatched the scheme for such atragic act, the other 10 appellants i.e A-32, A-36, A-39, A-44, A-10, A-29, A-9, A-11, A-12 and A-16 were mere subservient subordinates whoseknowledge and acquaintance might have been restricted to theircounterparts. If we say it in a metaphoric style, A-1 and all theabsconding accused were the archers whereas rest of the appellants were thearrows in their hands.

501) We are mindful of the fact that there is no direct act attributed toA-1 as far as parking of the explosives filled vehicle in differentlocalities are concerned. But we should recollect, that if, not for theplanning of conspirators for which A-1 was a party too, the explosives andammunition required for the execution wouldn't have entered into ourcountry and as a consequence the execution itself wouldn't havematerialized. Furthermore, it is not conceivable to envisage that theseprincipal perpetrators will take the execution in their hands. So theytargeted the meek souls who were underprivileged and easily impressible toaccomplish their ulterior motive. It is also a proved fact that the Memon'sfamily members including A-1 have fled the country anticipating detentionfor their illegal acts.

502) From this, it can safely be concluded that no offence might havetaken place at all but for the instigation by the absconding accused and A-1. Hence the dominant position of the accused is an aggravating factor byitself, as it gives the status of direct responsibility.

503) The following aggravating circumstances as against A-1 can be culledout:-Aggravating Circumstances:

1. A-1 was one of the brains behind the hatching of larger conspiracy for the Bombay Bomb Blasts in 1993.

2. The dominant position and significant role played by A-1 is a factor that may aggravate his punishment.

3. The "vulnerability of the victims" and "the depravity of the crimes" constitute additional aggravating circumstances.

4. Crime of terrorism is in itself an aggravating circumstance as it carries a "special stigmatization" due to the deliberate form of inhuman treatment it represents and the severity of the pain and suffering inflicted.

5. He was part of the deliberate choosing of localities like Century Bazaar, Zaveri Bazaar, Katha Bazaar, Stock Exchange Building etc. where there was more prospect of public gathering. The manner of its execution and its design would put it at the level of extreme atrocity and cruelty.Mitigating Circumstances:

504) Mr. Jaspal Singh, learned senior counsel submitted the following asthe mitigating circumstances to reduce the severity of the sentence of A-1.

• He is a Chartered Accountant by profession and a respectable person in the society before the occurrence of this incident.
• Learned senior counsel emphasized more on the point that this is a fabricated case and A-1 was merely inflicted in this trial on the sole ground of being the brother of Tiger Memon, who is the absconding accused in this case. As a consequence, there is no overt act committed by the accused himself. In fact, the act of A-1 returning to India unlike other absconders is in itself a mitigating circumstance in his favour.
• No criminal antecedent.
• He suffers from depression since 1996.
• Lastly, he had served more than 19 years in jail.

505) In our considered opinion, the argument of learned senior counselthat A-1 was inflicted in this trial only on the sole ground of being thebrother of Tiger Memon does not impress us, as the evidence shows thecontrary. We accept the contention of learned senior counsel and treat thelack of prior criminal record as a mitigating factor; other ascertainedmitigating circumstances are not at the higher pedestal to bargain forreduction of sentence.

506) Now, the task is vested upon us to determine appropriate sentence foran accused who was in the commanding position and was involved in crimes ofthe utmost gravity. Under the established jurisprudence, these two factors-a commanding position and a crime of 'utmost gravity' ordinarily merit theextreme penalty even accounting for the guilty plea and mitigating factors.This is the special reason, which warrants death penalty to the accused.

507) For the foregoing reasons, having taking into account and weighed thetotality of A-1's culpability and all the particular circumstances of thecase, we concur with the decision of the Designated Court and confirm thesentence of capital punishment to A-1 and the appeal is disposed ofaccordingly.

508) We shall now discuss the appeals filed by rest of the appellantssentenced to capital punishment by the Designated Court.

509) The above said appellants have traded the freedom of choice for thefreedom to commit atrocities. The discussion relating to Yakub Abdul RazakMemon (A-1) amply differentiates the role played by these 10 appellantswith A-1. Though the incident of bomb blasts is not a brainchild of these10 appellants yet they turned the conspirators' orders into action byexecuting the blasts for which they are indisputably liable for theconsequence of their acts. Every person is responsible for his or heractions and they can't evade the accountability by placing theresponsibility to another person. At the same time, our legal systemmandates that the sentence shall reflect the relative significance of theaccused's role.

510) The following are the aggravating circumstances with regard to theabove said appellants:-Aggravating circumstances

1. They underwent special training in Pakistan for the purpose of executing the blasts in India.

2. These accused persons/individuals parked the vehicles with explosives at different spots as directed by their masterminds for the explosion of bombs.

3. Crime of terrorism is in itself an aggravating circumstance as it carries a "special stigmatization" due to the deliberate form of inhuman treatment it represents and the severity of the pain and suffering inflicted.

4. The "vulnerability of the victims" and "the depravity of the crimes" constitute additional aggravating circumstances.

5. The manner of its execution and its design is at a level of extreme atrocity and cruelty. Though the aggravating circumstances remains the same for all the 10appellants, but their mitigating circumstance differ from individual toindividual. Therefore, we shall catalog the mitigating circumstancesindependently for each accused.

511) The following factors may be relevant while ascertaining themitigating circumstances:-Criminal Appeal Nos. 609-610 of 2008 Learned counsel for the appellants submitted that all the threeappellants (A-32, A-36 and A-39) have been in custody since their arrestexcept A-39, who was granted interim bail on medical grounds to look afterhis mother who was seriously ill. As on date, the appellants have servedmore than 19 years each in jail. According to learned counsel, during theabove said entire period, there is no complaint against the appellantseither by the jail authorities or by the escort party as and when they weregranted permission to go for medical treatment and to their respectivehomes in order to attend marriage, sickness, other functions and death oftheir near and dear ones. Learned counsel further submitted that theappellants being the first time offenders have already incarcerated morethan 19 years in custody and they must be considered and be given a chanceof reformation to be in society. It was further pointed out that A-32 hascompleted his Graduation (Bachelor of Commerce) from Yeshwantrao ChavanMaharashtra Open University, Nashik while in jail which itself indicatesthe prospect of his reformation and rehabilitation. As far as A-36 isconcerned, he belongs to the lower strata of the society. He used to makeand sell brooms to eke out his livelihood and is suffering from a cardiacailment. Insofar as A-39 is concerned, learned counsel submitted that heis the one, who was granted interim bail by the Designated Court in orderto look after his ailing mother. After considering his application beingBail Application No. 5 of 2005, learned Judge granted him bail and he wason interim bail for about 4 1/2 months. In a nutshell, their mitigatingcircumstances can be summarized as under:-Mitigating Circumstances (A-32):

1. At the time of arrest, he was 21 years of age.

2. He shows remorse for his role in the blast.

3. Lack of prior criminal record.

4. He cooperated in the investigation.

5. He suffers from Bone Tb, Arthritis, which severely affected his right shoulder and arm bone; he further suffers from paralysis, which has affected right side of his face. He has developed glands in his testicles and developed ailment at cervical vertebrata. He has been suffering from cervical vertebrata. On the whole he has been suffering from illness for the past 8 years and has been operated twice during the said period.

6. Family circumstances: He has sick parents and mentally retarded brother to look after.

7. He was a mechanic by profession.

8. He is in custody since 18.04.1993.

A36's Mitigating Circumstances:

1. At the time of arrest, he was 32 years of age.

2. He shows remorse for his role in the blast.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. He suffers from cardiac ailment.

6. Family circumstances: He has old mother, wife and three children to look after.

7. Before the blasts, he was earning his livelihood by making and selling broom in the market.

8. He is in custody since 18.04.1993.

A39's Mitigating Circumstances:

1. He shows remorse for his role in the blast.

2. Lack of prior criminal record.

3. He co-operated in the investigation.

4. He suffers from psychiatry problem and was treated for the same while in custody.

5. Family circumstances: He is unmarried and has old mother to look after.

6. He used to work for the relief camps setup for helping persons affected by riots.

7. He is in custody since 1993Criminal Appeal Nos. 628-629 of 2008 Learned counsel for the appellant (A-44) submitted that the sentenceawarded by the Designated Court is very harsh and he is in custody for morethan 19 years, hence, he deserves to be released for the period alreadyundergone. It was also submitted that there is neither any complaintagainst the appellant nor misuse of any facilities granted to him by theDesignated Court. According to the counsel, the period already undergonemust be considered and he be released from jail as he intends to lead alife of a good and reformed person. It was further submitted that he hasto look after his family especially his two daughters who are yet to bemarried and one son whom he intends to pursue for higher studies. It wasalso brought to our notice that before the incident, he was earning hislivelihood by selling readymade garments. The abovesaid submission can besummarized as under:-

A44's Mitigating Circumstances:

1. At the time of arrest, he was 37 years of age.

2. He shows remorse for his role in the blasts.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. He used to sell readymade garments in the streets.

6. He is in custody since 19.05.1993.Criminal Appeal Nos. 637-638 of 2008 With regard to sentence, Ms. Farhana Shah, learned counsel for theappellants (A-10 and A-29) submitted that both of them are in judicialcustody for more than 19 years. She also pointed out that the sentenceawarded to them is very harsh and they should be given a chance to be insociety as reformation is more important than being a deterrent and alsothat they deserve to be released for the period already undergone. She further pointed out that Asgar Yousuf Mukadam (A-10) hascompleted his Graduation while in custody which shows that he should begiven a chance of reformation which he would lose in case he isincarcerated in prison. It was further submitted that the accused personsare not hardened habitual criminals and they deserve to get a chance forreformation and rehabilitation. It was also pointed out that even duringthe entire period of judicial custody there is neither any report of misuseof the permissions/facilities granted to them nor there is any adversereport from the jail authorities. In a nutshell, their mitigatingcircumstances can be summarized as under:-

A10's Mitigating Circumstances:

1. At the time of arrest, he was aged about 31 years.

2. He shows remorse for his role in the blasts.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. Family circumstances: He is unmarried and has old parents to look after.

6. He used to work as an Accountant of Tiger Memon (AA).

7. He acted under extreme duress because he was under substantial domination of the main conspirator.

8. He is in custody since 12.03.1993.

A29's Mitigating Circumstances:

1. He is an illiterate person.

2. He shows remorse for his role in the blasts.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. Family circumstances: He has a young child and wife to look after.

6. He is in custody since 1993Criminal Appeal No. 365 of 2008 Ms. Farhana Shah, learned counsel for the appellant (A-9) submittedthat the appellant has been in custody since his arrest on 17.03.1993.According to her, during his entire period of custody for more than 19years, there is not even a single complaint against him neither any misuseof the permissions granted nor any attempt to flee away from justice. Shefurther pointed out that the appellant was granted permission to visit homeon number of occasions in order to meet his ailing mother and to attend themarriage of his brother but he never misused the same at any point of time. In addition to the same, learned counsel pointed out that though hewas convicted and sentenced to death, he completed his Graduation fromYeshwantrao Chavan Maharashtra Open University, Nashik while in jail whichshows that there is chance of reformation in him and the appellant is not ahardened criminal, hence, he deserves to lead a normal life to serve hisaged sick mother who is bed-ridden and waiting for his return.

A9's Mitigating Circumstances:

1. He shows remorse for his role in the blasts.

2. Lack of prior criminal record.

3. He co-operated in the investigation.

4. Family circumstances: He is unmarried and has old parents and siblings to look after.

5. He was a salesman in a shopping center.

6. He is in custody since 17.03.1993.Criminal Appeal Nos. 864-865 of 2008With regard to sentence,

Ms. Farhana Shah, learned counsel for theappellant (A-11) has submitted that the appellant has served more than 19years in jail since his arrest on 18.03.1993. She further pointed out thatduring the entire period of 19 years, there is neither any complaintagainst him nor misuse of any permissions granted nor any attempt toabscond/flee away from justice. It is further pointed out that theappellant has been sent home on a number of occasions for attending themarriage of his children, last rites, visit his ailing wife, etc. but henever misused the same, hence, he may be given a chance to lead a normallife along with his family members. Before the date of incident, he wasearning his livelihood by driving a taxi.

A11's Mitigating Circumstances:

1. At the time of arrest, he was aged about 44 years.

2. He shows remorse for his role in the blast.

3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. Family circumstances: He has aged parents and two unmarried daughters to look after.

6. He used to be a taxi driver.

7. He is in custody since 18.03.1993.Criminal Appeal No. 897 of 2008 With regard to sentence,

Ms. Farhana Shah, learned counsel for theappellant submitted that the appellant (A-12) has undergone more than 19years in custody since his arrest on 20.03.1993. She also pointed out thatthere is neither any complaint against him nor misuse of any facilitygranted to him and he has never made any attempt to flee away from justice.

She also pointed out that even during the pendency of this appeal, thisCourt granted him permission on two occasions to visit his home andgraveyard at the time of death of his father and mother. In addition to the same, learned counsel also pointed out that thoughhe was convicted and sentenced to death, he has completed his Graduationfrom Yeshwantrao Chavan Maharashtra Open University, Nashik which showsthat reformation theory can be applied in his case. Further, it waspointed out that he is not a hardened criminal, hence, he deserves to get achance to lead a normal life. With these materials, learned counsel prayedfor leniency in his sentence.

A12's Mitigating Circumstances:

1. At the time of arrest, he was aged about 25 years.

2. He completed his graduation in jail.

3. He shows remorse for his role in the blasts.

4. Lack of prior criminal record.

5. He co-operated in the investigation.

6. Family circumstances: He has old parents, wife and a son to look after.

7. He used to be a mechanic.

8. He is in custody since 20.03.1993.Criminal Appeal Nos. 941-942 of 2008

Ms. Farhana Shah, learned counsel for the appellant (A-16) submitted thatthe appellant is in custody for more than 19 years and he deserves to bereleased for the period already undergone. She also pointed out that thereis neither any complaint against him nor misuse of any facility granted bythe Designated Court. She further pointed out that the appellant issuffering from mental disorder and he was under treatment of J.J. Hospitaland Thane Mental Hospital during the entire period of trial. He is stillunder treatment and, as advised by the doctors, is surviving on medicines.His mental condition is not stable. In support of the above claim, learnedcounsel has submitted his medical reports for perusal of this Court.

A-16's Mitigating Circumstances:

1. He shows remorse for his role in the blasts.

2. Lack of prior criminal record.

3. He co-operated in the investigation.

4. He is undergoing psychiatric treatment for the last 9 years and was admitted to the prison hospital for 15 months.

5. Family circumstances: He has old mother, wife and three children to look after.

6. He was earning his livelihood by making and selling brooms in the market.

7. He is in custody since 24.03.1993.

512) At the outset, we can classify these mitigating circumstances intoseven heads, namely, age, act of remorse, no prior criminal antecedents, co-operation with the investigation, family circumstances, ill health anddelay in execution. The first five aspects have been accepted as mitigatingcircumstances by the established practices of this Court. As far as 'illhealth' is concerned, it is not a mitigating but a special circumstancewhich may aid in reduction of sentence. The vital distinction between the'special circumstance' and 'mitigating circumstance appears to lie in thefact that the reduction in penalty is given not owing to any merit earnedon the part of the accused, but because of compelling 'reasons ofhumanity', illustrating a humane approach to sentencing in this context.

513) Another vital factor stated as mitigating circumstance in all thesepetitions is that they have all been imprisoned for around 20 years andthey continue to be in jail; hence the defence counsel submitted that onhumanitarian grounds, sentence of all the death convicts must be reduced toimprisonment for life. Nevertheless, it is settled law by a ConstitutionBench in Triveniben vs. State of Gujarat (1989) 1 SCC 678 that sentencecan't be commuted merely on the ground of delay alone. It was furtherobserved that no absolute or unqualified rule can be laid down that inevery case in which there is a long delay in the execution of deathsentence, the sentence must be substituted by the sentence of lifeimprisonment. Thus no accused can claim as a matter of right to commutehis/her death sentence on the ground of delay in the judicial process.However, noting the lengthy incarceration suffered by the accused over aperiod of two decades, as an exceptional scenario, we are inclined toconsider the long delay as a mitigating circumstance but less significancewill be attached to them in comparison with other six circumstances.

514) Furthermore, as we have already narrated, all the above said 10appellants belong to the lower strata of society, most of whom don't evenhave any regular job for their livelihood. In brief, their personal lifewas relatively moderate before this incident. Subsequently, theseappellants have fallen prey to the ulterior motive of the conspirators foraccomplishing their hidden motives, which was to spread terror among thepeople. Such evidence can in no way exonerate or excuse them for theirparticipation in the commission of crime. However, it provides a somewhatnuanced picture and may imply that their participation in the massacresresulted from misguided notions rather than extremism.

515) Recalling that the sentence should directly reflect the role of theaccused in the crime, we made an attempt to evaluate the significance ofthese mitigating circumstances respectively and their repercussions on thequantum of sentence on these 10 appellants.

516) Technically, it is these 10 appellants who parked the explosivefilled vehicles in the respective destinations, however, if we do lift theveil it is actually the masterminds strategy, which was executed by thesubservient minions i.e these 10 appellants. This may not help in completeexoneration of the liability of these 10 appellants but the degree ofpunishment must necessarily reflect this difference. It is vital toremember that 'but for' the masterminds, this blast should have never seenthe daylight.

517) Accordingly, to differentiate the degree of punishment to A-1 andother 10 appellants, we contemplate that the ends of justice would beserved if the death sentence of these ten appellants be commuted toimprisonment for life.

518) With a note of caution, we reiterate that it is ordinarily expectedthat two accused convicted of similar crimes in similar circumstancesshould not in practice receive very different sentences, often thedifferences are more significant than the similarities, and the mitigatingand aggravating factors dictate different results. Therefore, the lessersentence imposed on these 10 appellants cannot be a precedent in othercases and every case must be decided according to their facts andcircumstances.

519) In view of the above, it is apt to quote a decision of this Court inState of U.P. vs. Sanjay Kumar (2012) 8 SCC 537, to understand thesentencing policy having regard to the nature of the offence and the mannerin which it was executed or committed etc. The following paragraphs arerelevant:- "21. Sentencing policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to [pic]prescribe punishment. By introducing more uniformity and consistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality, as followed in various judgments of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus, the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.

22. Ultimately, it becomes the duty of the courts to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed, etc. The courts should impose a punishment befitting the crime so that the courts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of the crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order in many cases may be in reality, a futile exercise.

23. The survival of an orderly society demands the extinction of the life of a person who is proved to be a menace to social order and security. Thus, the courts for the purpose of deciding just and appropriate sentence to be awarded for an offence, have to delicately balance the aggravating and mitigating factors and circumstances in which a crime has been committed, in a dispassionate manner. In the absence of any foolproof formula which may provide a basis for reasonable criteria to correctly assess various circumstances germane for the consideration of the gravity of the crime, discretionary judgment, in relation to the facts of each case, is the only way in which such judgment may be equitably distinguished. The Court has primarily dissected the principles into two different compartments-one being the "aggravating circumstances" and, the other being the "mitigating circumstance".

To balance the two is the primary duty of the court. The principle of proportionality between the crime and the punishment is the principle of "just deserts" that serves as the foundation of every criminal sentence that is justifiable. In other words, the "doctrine of proportionality" has valuable application to the sentencing policy under the Indian criminal jurisprudence. While determining the quantum of punishment the court always records sufficient reasons. (Vide Sevaka Perumal v. State of T.N. AIR 1991 SC 1463 [pic]Ravji v. State of Rajasthan AIR 1996 SC 787, State of M.P. v. Ghanshyam Singh AIR 2003 SC 3191, Dhananjoy Chatterjee v. State of W.B. AIR 2004 SC 3454, Rajendra Pralhadrao Wasnik v. State of Maharashtra AIR 2012 SC 1377 and Brajendrasingh v. State of M.P. AIR 2012 SC 1552) 24 The aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the "rarest of rare cases", warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. The life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life.

This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds, for example, non-application of mind while passing the order; non- consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under the Jail Manual, etc. or even under Section 433-A CrPC."Life Imprisonment Means Rigorous Imprisonment:

520) There was a misperception that life imprisonment is distinct from thepunishment of rigorous or simple imprisonment shown in clause (4) ofSection 53 of the Code of Criminal Procedure. This issue was clarified inMd. Munna vs. UOI and Ors./Kartick Biswas vs. State of West Bengal and Ors.(2005) 7 SCC 417, it was held: "10 Imprisonment for life is a class of punishment different from ordinary imprisonment which could be of two descriptions, namely, "rigorous" or "simple". It was unnecessary for the Legislature to specifically mention that the imprisonment for life would be rigorous imprisonment for life as it is imposed as punishment for grave offences."Therefore, "imprisonment for life" is to be treated as "rigorousimprisonment for life".Meaning of Life Imprisonment:

521) Life imprisonment cannot be equivalent to imprisonment for 14 yearsor 20 years or even 30 years, rather it always means the whole naturallife. This Court has always clarified that the punishment of a fixed termof imprisonment so awarded would be subject to any order passed in exerciseof clemency powers of the President of India or the Governor of the State,or remission and commutation guaranteed under Section 432 of the Code asthe case may be.

522) As observed in State of Uttar Pradesh vs. Sanjay Kumar, (2012) 8 SCC537, there is no scope of judicial review of such orders except on verylimited grounds such as the non-application of mind while passing theorder, non-consideration of relevant material, or if the order suffers fromarbitrariness. The power to grant remissions and to commute sentences iscoupled with a duty to exercise the same fairly, reasonably and in terms ofrestrictions imposed in several provisions of the Code.

523) In order to check all arbitrary remissions, the Code itself providesseveral conditions. Sub-sections (2) to (5) of Section 432 of the Code laydown basic procedure for making an application to the appropriateGovernment for suspension or remission of sentence either by the convict orsomeone on his behalf. We are of the view that exercise of power by theappropriate Government under sub-section (1) of Section 432 of the Codecannot be automatic or claimed as a right for the simple reason, that thisis only an enabling provision and the same would be possible subject tofulfillment of certain conditions. Those conditions are mentioned either inthe Jail Manual or in statutory rules. This Court, in various decisions,has held that the power of remission cannot be exercised arbitrarily. Inother words, the decision to grant remission has to be well informed,reasonable and fair to all concerned. The statutory procedure laid down inSection 432 of the Code itself provides this check on the possible misuseof power by the appropriate Government.

524) As rightly observed by this Court in Sangeet and Anr. vs. State ofHaryana, 2012 (11) Scale 140, there is misconception that a prisonerserving life sentence has an indefeasible right to release on completion ofeither 14 years or 20 years imprisonment. A convict undergoing lifeimprisonment is expected to remain in custody till the end of his life,subject to any remission granted by the appropriate Government underSection 432 of the Code, which in turn is subject to the procedural checksmentioned in the said provision and to further substantive check in Section433-A of the Code.

525) Therefore, pursuant to Sections 432 and 433 of the Code and clemencypowers of President and Governor, as vested by the Constitution underArticles 72 and 161 respectively, the accused persons, viz., A-32, A-36, A-39, A-44, A-10, A-29, A-9, A-11, A-12 and A-16 shall be imprisoned for lifeuntil their death and the appeals are disposed off on the above terms. Wemay add a footnote to the above conviction that the executive should takedue consideration of judicial reasoning before excising the remissionpower.

526) For convenience, we have reproduced the conclusion arrived at inrespect of all the appeals dealt with under this part in Annexure 'A'appended hereto. Death Ref. Case (Crl.) No. 1 of 2011State of Maharashtrathrough CBI Appellant (s) vs.Yakub Abdul Razak Memon & Ors. Respondent(s)

527) In view of the conclusion arrived at in respect of the above saidappeals filed by the appellants herein, we confirm the death reference withregard to Yakub Abdul Razak Memon (A-1) and commute the death sentence intolife imprisonment for rest of the appellants convicted under this part.The Death Reference is disposed of accordingly.

........................................J. (P. SATHASIVAM)

........................................J. (DR. B.S. CHAUHAN)

NEW DELHI;

MARCH 21, 2013.

Annexure 'A'

S.No	Criminal Appeal	Accused Name and Number.	Sentence by Designated Court	Award by Supreme Court
1	1728/2007	Yakub Abdul Razak Memon (A-1)	Death Sentence	Confirmed
2	609-610/2008	Zakir Hussain Noor Mohd. Shaikh(A-32)	Death Sentence
		Abdul Khan @ Yakub Khan Akhtar Khan (A-36)
		Firoz @ Akram Amani Malik (A-39)		Commuted to Life Imprisonment
3	628-629/2008	Mohammed Mushtaq Moosa Tarani (A-44)	Death Sentence
4	637-638/2008	Asgar Yusuf Mukadam (A-10) and Shahnawaz Abdul Kadar Qureshi (A-29)	Death Sentence
5	365/2008	Mohammed Shoeb Mohammed Kasam Ghansar (A-9)	Death Sentence
6	864-865/2008	Abdul Gani Ismail Turk (A-11)	Death Sentence
7	897/2008	Parvez Nazir Ahmed Shaikh (A-12)	Death Sentence
8	941-942/2008	Mohd. Farooq Mohammed Yusuf Pawale (A-16)	Death Sentence