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TMI Blog2013 (3) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... ls have been filed under Section 19 of the TADA by the accused against their conviction and sentence and by the CBI for confirmation of the death sentence and against the acquittal of some of the accused persons. 2) Brief facts: The case of the prosecution is as follows: (a) Babri Masjid at Ayodhya was demolished on 06.12.1992. After its demolition, violence broke out throughout the country. In order to take revenge of the said demolition, Tiger Memon (AA) and Dawood Ibrahim, a resident of Dubai, formulated a conspiracy to commit a terrorist act in the city of Bombay. In pursuance of the said object, Dawood Ibrahim agreed to send arms and ammunitions from abroad. Tiger Memon, in association with his men, particularly, the accused persons, received those arms and ammunitions through sea-coasts of Bombay. In continuation of the said conspiracy, Tiger Memon sent some of the accused persons to Dubai and from there to Pakistan for training and handling in arms and ammunitions. (b) On 12.03.1993, the commercial hub of the country, the city of Bombay, witnessed an unprecedented terrorist act sending shock waves throughout the world. In a span of about two hours i.e., betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Baleshwar Prasad (A-102), Sayed @ Mujju Ismail Ibrahim Kadri (A-104), Sayed Ismail Sayed Ali Kadri (A-105), Srikrishna Yeshwant Pashilkar (A-110), Somnath Kakaram Thapa (A-112), Sudhanwa Sadashiv Talwadekar (A-113), Vijay Krishnaji Patil (A-116), Jamir Sayyed Ismail Kadri (A-133), Md. Salim Mira Moiddin Shaikh @ Salim Kutta (A-134) and Md. Kasam Lajpuria (A-136). The said meeting dated 06.01.1993 was not a sudden meeting but was pre-arranged and pre-planned. (e) On 19.01.1993, another meeting was held at Dubai wherein Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14), Dawood Ibrahim and Tiger Memon (both absconding) were present and detailed discussions were held whereafter Tiger Memon agreed to arrange for landing of arms and ammunitions and explosives which were to be sent to India by sea route for the purpose of committing the aforesaid terrorist act. Pursuant to the above, between 02-08.02.1993, two more such landings of arms and ammunitions, detonators, hand grenades and explosives like RDX took place at Shekhadi Coast under Taluka Shrivardhan in Raigad District through landing agent A-14, Sharif Abdul Gafoor Parkar @ Dadabhai (A-17) (deceased) and Rahim Abba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torwala (A-75), Fazal Rehman Abdul Khan (A-76), Gul Mohammed @ Gullu Noor Mohammed Shaikh (A-77), Mohammed Hanif Mohammed Usman Shaikh (A-92), Mohammed Rafiq Usman Shaikh (A-94), Mohammed Sayeed Mohammed Issaq (A-95), Niyaz Mohammed @ Islam Iqbal Ahmed Shaikh (A-98), Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Shaikh Ibrahim Shaikh Hussain (A-108), Sayed Ismail Sayed Ali Kadri (A-105) and Usman Man Khan Shaikh (A-115). All the above said accused persons were received at Dubai Airport by Ayub Abdul Razak Memon (AA) and Tahir Mohammed Merchant @ Tahir Taklya (recently deported to India and arrested by the CBI in the case being No. RC 1(s)/1993). (g) Another batch, comprising of the following accused persons, namely, Shaikh Mohammed Ethesham Haji Gulam Rasool Shaikh (A-58), Manzoor Ahmed Mohammed Qureshi (A-88), Shaikh Kasam @ Babulal Ismail Shaikh (A-109), Sultan-E-Rome Sardar Ali Gul (A-114), Abdul Aziz Abdul Kader (A-126), Mohammed Iqbal Ibrahim s/o Shaikh Ibrahim (A-127), Shahnawaz Khan s/o Fair Mohammed Khan (A-128), Murad Ibrahim Khan (A-130) and Mohammed Shahid Nizammudin Qureshi (A-135) went to Pakistan for a similar training, however, the said training programme was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tiger Memon called Javed Chikna, Irfan Chougule, Salim Mujahid, Bashir Khan, Babloo and PW-2 in the flat and selected the following places as targets, namely, Air India Building, Nariman Point, Bharat Petroleum Refinery, Chembur, Share Market near Fountain, Zaveri Bazaar near Mohammed Ali Road and Pydhonie, Five Star Hotels, Cinema Theatres, Shiv Sena Bhavan, Shivaji Park, Dadar, Bombay Municipal Corporation Building, V.T., Sahar Airport, Passport Office, Worli, Mantralaya and others places. (m) Again, on 10.03.1993, a meeting was held at the house of Mobina @ Bayamoosa Bhiwandiwala (A-96) where PW-2 met Tiger Memon, Javed Chikna, Salim Rahim Shaikh (A-52), Bashir Khan, Zakir Hussain Noor Mohammed Shaikh (A-32), Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64), Parvez Mohammed Parvez Zulfikar Qureshi (A-100), Mohammed Moin Faridulla Qureshi (A-43), Mohammed Iqbal Mohammed Yusuf Shaikh (A-23), Sardar Shahwali Khan (A-54), Bashir Ahmed Usman Gani Khairulla (A-13) and Nasim Ashraf Shaikh Ali Barmare (A-49). In the second meeting, Tiger Memon distributed ₹ 5,000/- to each one of them and again formed the groups. PW-2 also told Tiger Memon about the survey of Chembur Refinery. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mohammed Yusuf Pawale (A-16) planted bomb and caused explosion at Lucky Petrol Pump near Shiv Sena Bhavan wherein 4 persons were killed and 50 persons were injured; Fourthly, Abdul Gani Ismail Turk (A-11) planted bomb and caused explosion at Century Bazaar at 14:45 hrs wherein 88 persons were killed and 160 persons were injured; Fifthly, Bashir Ahmed Usman Gani Khairulla (A-13), Zakir Hussain Noor Mohammed Shaikh (A-32), Abdul Khan @ Yakub Khan Akhtar Khan (A-36), Firoz @ Akram Amani Malik (A-39), Mohammed Moin Faridulla Qureshi (A-43), Salim Rahim Shaikh (A-52) and Ehsan Mohammed Tufel Mohammed Qureshi (A-122) threw hand grenades and caused explosions at Fishermen s colony at Mahim at 14:45 hrs. wherein 3 persons were killed and 6 persons were injured; Sixthly, Mohammed Farooq Mohammed Yusuf Pawale (A-16), Mohammed Tainur (AA) and Irfan Chougule planted bomb and caused explosion at Air India Building at 15:00 hrs wherein 20 persons were killed and 84 persons were injured; Seventhly, Md. Shoaib Mohammed Kasam Ghansar (A-9) planted bomb and caused explosion at Zaveri Bazaar at 15:05 hrs. wherein 17 persons were killed and 57 were injured; Eighthly, Parvez Nazir Ahmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fles, a plastic bag and 14 magazines which were forwarded to the FSL. One more plastic bag and four hand grenades were also recovered from the Van and were sent to the FSL. The FSL report Exh. 2439-A establishes that these hand grenades were capable of causing explosion. During investigation, it was found that in the above said van, the following persons were sitting, viz., A-57, Javed Chikna (AA), Bashir Khan and Nasir @ Babloo and were proceeding towards BMC office near V.T. for the purpose of killing BJP and Shiv Sena Corporators but they left the vehicle because of the damage caused to the car during the explosion at Century Bazaar. (r) On 26.03.1993, the following items were recovered from Khalil Ahmed Sayed Ali Nasir (A-42), namely, a single 7.62 mm pistol without magazine (Article 87), a single 7.65 mm pistol without magazine having body No. 352468 made in Czechoslovakia marked as Article 88, four empty magazines, 13 cartridges, 7 cartridges of 7.65 mm pistol, 4 KF 7.65 mm cartridges, 2 SBP 7.65 mm cartridges and 8 cartridges of 7.62 mm pistol. (s) On 26.03.1993, Investigating Officer (PW-506), in the presence of Lakshan Loka Karkare (PW-45) searched the house of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, one rexin pouch, one revolver case and Arms Licence and one permit in the name of Tiger Memon were also recovered. (y) On 02.04.1993, at the instance of Ayub Patel (A-72), Eknath Dattatraya Jadhav (PW-606), in the presence of PW-44 prepared the disclosure Panchnama Exh. 154 and in pursuance of the said disclosure Panchnama seized 13 dismantled hand grenades and 3 more hand grenades vide seizure Panchnama Exh. 155 and marked under various article numbers. (z) On 26.03.1993, PW-506, in the presence of Laksham Loka Karkare (PW-45), searched the house of Sharif Parkar at Sandheri, Dist. Raigad and seized two AK-56 rifles, two empty magazines of AK-56 and one gunny bag. (aa) On 01.04.1993, at the instance of Ibrahim Mussa Chauhan @ Baba (A-41), Anil Prabhakar Mahabole (PW-506), in the presence of (PW-45), prepared the disclosure Panchnama Exh. 171 and seized a single 7.72 mm Assault short rifle without magazine, 10 empty rifle magazines, 564 cartridges and 25 hand grenades. In addition, a blue coloured rexin bag was also recovered. (ab) On 18.04.1993, at the instance of Ahmed Birya (A-35), Uttam Khandoji Navghare (PW-545), in the presence of Manohar Balchandra Tandel (PW-56), prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as found abandoned. During the course of search, xerox copies of registration papers of the said vehicle in the name of Rubina Suleman @ Arif Memon (A-8) were found which led the police party to the flat Nos. 22, 25 and 26 of Memons at Al Hussaini Building. As the involvement of Memons had come to light in the incidents, the said flats were searched by the Police Officer, namely, Dinesh P. Kadam (PW-371), in the presence of Uday Narayan Vasaikar (PW-67) and vide seizure Panchnama Exh. 337, the police party seized the passport of Shabana Memon, five key bunches, two keys 449, rubber slipper of right foot, brown leather chappal of right foot, pista coloured chappal, carpet pieces, rubber slipper and a pink piece of scrap. (al) On 01.05.1993, at the instance of Yusuf Nullwala (A-118), Suresh S. Walishetty (PW-680), in the presence of Gangaram B. Sawant (PW-265), prepared the disclosure Panchnama Exh. 1100 and seized one plastic bag of Metro Co. and 57 intact bullets. (am) During the investigation, the following items were recovered from the compound of Al Hussaini Building in the presence of Leoneison Desouza (PW-52), namely, 31 gunny cloth pieces, 25 black cardboard piece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AK-56 rifles, 80 magazines and 100 cartridges with forwarding letter vide Exh. 2471 to Chemical Analyser. (as) At the instance of Sayeed @ Mujju Ismail Ibrahim Kadri (A-104), PW- 573, in the presence of PW-91, recovered five plastic jars containing explosives and detonators from the lavatory in the courtyard of the accused. (at) The accused persons had undertaken firing practice at Chinchechamal, Dist. Raigad. Nandev P. Mahajan (PW-587), in the presence of PW-103, seized certain articles, namely, 3 broken branches, pieces of cardboard, 3 empties, 6 lead pieces and pieces of stones. (au) Out of the aforesaid articles, the following articles were sent to the FSL vide Exh. 2112 i.e., 3 empties, 6 lead shots, 3 tree branches and pieces of target, stones, cardboard and 12 empties recovered on 01.04.1993, 02.04.1993 and 03.04.1993. (av) At the instance of Issaq Mohammed Hajwani (A-79), PW-587, in the presence of PW-104, recovered 13 hand grenades and 79 empties from Sandheri Jetty. The articles were marked in the Court as per the details given below: (i) 12 empties Article 307(v) colly (ii) 67 empties Article 308-B colly (iii) One hand grenade Article 309-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Special Judge referred the matter to this Court for confirmation. In total, 51 appeals have been filed by the accused against their conviction ranging from various sentences upto life imprisonment. Against the order of acquittal, the State of Mahrashtra through CBI has filed 48 appeals. Yakub Abdul Razak Memon (A-1) 4) At the first instance, let us consider the charges, materials placed by the prosecution, defence and details regarding conviction and sentence insofar as A-1 is concerned. Charges: The following charges were framed against A-1, namely: ..During the period from December, 1992 to April, 1993 at various places in Bombay, District Raigad and District Thane in India and outside India in Dubai (U.A.E.) Pakistan, entered into a criminal conspiracy and/or were members of the said criminal conspiracy whose object was to commit terrorist acts in India and that you all agreed to commit following illegal acts, namely, to commit terrorist acts with an intent to overawe the Government as by law established, to strike terror in the people, to alienate sections of the people and to adversely affect the harmony amongst different sections of the people, i.e. Hind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 (1-A), (1-B)(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, the appellant was also charged on the following counts: At head secondly, for commission of the offence under Section 3(3) of TADA Act, for in pursuance to the conspiracy in India, Dubai and Pakistan, during the period between December, 1992 and April, 1993, having conspired advocated, abetted, advised and knowingly facilitated the commission of terrorist acts and acts preparatory to terrorist acts i.e. serial bomb blast in Bombay and its suburbs on 12.03.1993 by: (i) arranging finance and managing the disbursement by generating the same through Mulchand Shah Choksi (A-97) and from the firm M/s Tejarat International owned by Ayub Memon (AA) for achieving the objective of conspiracy to commit the terrorist act; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable his co-conspirators to do such acts. 5) The appellant (A-1) has been convicted and sentenced for the above said charges as follows:- (i) The appellant-A1 has been convicted and sentenced to death under Section 3(3) of TADA and Section 120-B of IPC read with the offences mentioned in the said charge. In addition, the appellant was ordered to pay a fine of ₹ 25, 000/-. (charge firstly) ii) The appellant (A-1) was sentenced to RI for life alongwith a fine of ₹ 1,00,000/-, in default, to further undergo RI for 2 years under Section 3(3) of TADA. (charge secondly) iii) The appellant was sentenced to RI for 10 years alongwith a fine of ₹ 1,00,000/-, in default, to further undergo RI for 2 years under Section 5 of TADA (charge thirdly) iv) The appellant was sentenced to RI for 14 years alongwith a fine of ₹ 1,00,000/-, in default, to further undergo RI for 2 years under Section 6 of TADA. (charge fourthly) v) The appellant was sentenced to RI for 10 years with a fine of ₹ 50,000/-, in default, to further undergo RI for 1 year under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908. (charge fifthly). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, more particularly, Section 27 of the Indian Evidence Act, 1872. (v) All the confessional statements are exculpatory and not inculpatory. In view of the same, the entire statements made are not acceptable. (vi) There is no material to prove that there was a conspiracy among the accused persons pursuant to the demolition of Babri Masjid. (vii) In any event, the prosecution failed to pin point the specific role of A-1. A-1 had no knowledge of the conspiracy and of the ultimate bomb blasts on 12.03.1993. Even, the confessional statements cannot be used against A-1 since the same were recorded before the amendment of Section 3(5) of TADA. Considering the entire evidence against him, the prosecution failed to point out any specific role, accordingly, the death sentence is not warranted and other sentences are also liable to be set aside. Reply by CBI: 8) Mr. Gopal Subramanium, learned senior counsel for the CBI duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel met all the points raised by Mr. Jaspal Singh. He pointed out the following evidence against the appellant (A1), namely; (i) confessional statements made by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing A-1, the Presiding Officer stated that the reasons will be given within two months which shows that, admittedly, the judgment was not ready on the date of the pronouncement. 11) In view of the above, it is desirable to go through the relevant provisions of TADA. The TADA contains: (a) judgment; and (b) orders, admittedly, it is not defined anywhere that what is meant by judgment/order. It is the claim of the learned senior counsel for the appellant that if it is not a complete judgment, accused cannot be convicted and sentenced. In the absence of specific provision in TADA with regard to the same, we have to look into the relevant provisions of the Code. Chapter XXVII of the Code speaks about Judgment . The relevant provisions are Sections 353, 354, 362 and 363 which are as under: 353. Judgment.--(1). The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders. (a) By delivering the whole of the judgment; or (b) By reading out the whole of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision thereon and the reasons for the decision; (c) Shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced; (d) If it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. (2) When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code the offence falls, the court shall distinctly express the same, and pass judgment in the alternative. (3) 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. (4) When the conviction is for an offence punishable with imprisonment for a term of one year of more, but the court imposes a sentence of imprisonment for a term of less than three months, it shall record its reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , give it to him free of cost. (6) The High Court may, by rules, provide for the grant of copies of any judgment or order of a Criminal Court to any person who is not affected by a judgment or order, on payment, by such person, of such fees, and subject to such conditions, as the High Court may, by such rules provide. 12) By drawing our attention to Section 353(1)(a)(b)(c), it is contended by learned senior counsel for the appellant that it is incumbent on the part of the trial Judge to provide the whole judgment. In the absence of reasoning and the discussion in the form of full judgment, it is contended that the conviction and sentence under various provisions are not permissible. He also pointed out that in case of death sentence, special reasons have to be assigned. According to Mr. Jaspal Singh, in terms of Section 353 of the Code, the judgment means the whole judgment signed by the Judge. He elaborated that when the Code permits the Court to hear the accused on sentence, he must be provided with the whole judgment including the reasons. According to him, though A-1 was awarded death sentence, no special reasons were assigned by the Designated Court and he was not ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al appreciation of evidence, the Judgment should be such as to indicate that the Court has applied its mind to it. Every portion of the Judgment of the trial Court seems to indicate non-application of mind by the Court to the evidence on record. The third requirement laid down in Section 367, Criminal P. C. viz., the reasons for the decision, is an important ingredient of a Judgment. Compliance with law in this regard should not be merely formal but substantial and real, for it is this part of the judgment alone which enables the higher Court to appreciate the correctness of the decision, the parties to feel that the Court has fully and impartially considered their respective cases and the public to realise that a genuine and sincere attempt has been made to mete out even-handed Justice. It is in the way the Court discharges its duty in this regard that it is able to instil confidence in its justice and to inspire that respect and reverence in public mind which is its due. Reasons form the substratum of the decision and their factual accuracy is a guarantee that the Court has applied its mind to the evidence in the case. Where the statement of reasons turn out to be a mere hollow p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the court. That is what constitutes the judgment . 14. As soon as the judgment is delivered, that becomes the operative pronouncement of the court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because of the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent authentication. 16) In Ratia Mohan. vs. The State of Gujarat AIR 1969 Guj. 320, the following para is pressed into service:- 9. In this connection, I was referred to a decision In re. Athipalayan, AIR 1960 Mad 507, where it was held that the irregularity even in pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come to that conclusion. It may well happen that after coming to know about the accused going in appeal, the learned Magistrate may try to record a proper judgment which otherwise he may later on do in some other manner. In any event, the learned Magistrate has clearly contravened the imperative provisions contained in Section 264 of the Criminal Procedure Code by passing the sentence without recording the judgment in the case and has that way acted illegally. Such an illegality cannot be treated as an irregularity contemplated under Section 537 or an omission as urged by Mr. Nanavati so as to become curable one. Even if it were to be treated as such as coming within the ambit of Section 537, it can easily be said that it had occasioned failure of justice in the circumstances of the case. In any view of the matter, the order is, therefore, liable to be set aside. 17) The other decision relied on is State of Orissa vs. Ram Chander Agarwala Ors. (1979) 2 SCC 305. We have gone through the factual position and the ratio laid down therein. Inasmuch as it is only a general observation, the same is not helpful to the case on hand. 18) Another decision relied on is Jhari Lal v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er XX Rule 1(1)(2) of the Civil Procedure Code (Madras amendment) refers judgment when pronounced and judgment to be signed . In para 9, this Court has held as under: 9. Order XX Rule 5 on which great emphasis was laid by learned counsel for the appellant says that in suits in which issues have been framed, the court shall state its finding or decision with the reason therefore, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. In the light of the definition clause, namely, judgment though the same has not been explained in the Code, the procedure to be followed both in the civil and criminal cases are all acceptable. 22) By pointing out that when the judgment does not contain the material case of the prosecution, defence and discussion on conclusion, according to learned senior counsel, it not only vitiates the principles of natural justice but also infringes the right under Article 21 of the Constitution. He heavily relied on a Constitution Bench decision of this Court reported in Sarojini Ramaswami (Mrs.) vs. Union of India Ors. (1992) 4 SCC 506. In para 141, the Constitution Bench has hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right to life guaranteed under Article 21 of the Constitution embraces within its sweep not only physical existence but the quality of life. If any statutory provision runs counter to such a right, it must be held unconstitutional and ultra vires Part III of the Constitution. 25) Now, let us consider the decisions relied on by Mr. Gopal Subramanium, learned senior counsel for the CBI with regard to the contentions raised. In Iqbal Ismail Sodawala vs. The State of Maharashtra and Others (1975) 3 SCC 140, this Court considered almost similar question. It was argued before the Bench that the allegation of the petitioner therein that the judgment in the case under Sections 392 and 397 of IPC against the petitioner was not pronounced by learned Sessions Judge but by his Sheristedar. It was urged that the procedure adopted in this respect by learned Sessions Judge was not in accordance with law. This submission was not acceptable to the Bench. The following observation and conclusion are relevant: 6 The report of Shri Gupte shows that he dictated the judgment in the case against the petitioner in open court. The judgment included, as it must, the concluding part relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere be substantial compliance with the requirements of law, a mere procedural irregularity would not vitiate the trial unless the same results in miscarriage of justice. In all procedural laws certain things are vital. Disregard of the provisions in respect of them would prove fatal to the trial and would invalidate the conviction. There are, however, other requirements which are not so vital. Non-compliance with them would amount to an irregularity which would be curable unless it has resulted in a failure of justice. 26) The next decision relied on by learned senior counsel for CBI is reported in Rama Narang vs. Ramesh Narang and Ors. (1995) 2 SCC 513 wherein it was held that judgment becomes complete and appealable only after conviction is recorded and also sentence is awarded. 27) In view of the above discussion, it is useful to refer the relevant provision of the Code with regard to right of hearing. Right of hearing under Section 235(2) of the Code Right of hearing to the accused on the question of sentence is provided under Section 235(2) of the Code and this provision was introduced in view of the 48th Report of the Law Commission of India. Section 235(2) of the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed on him, failure of justice must be regarded as implicit. Section 465 cannot, in the circumstances, have any application in a case like the present . 11 .This obviously postulates that the accused must be given an opportunity of making his representation only regarding the question of sentence and for this purpose he may be allowed to place such materials as he may think fit but which may have bearing only on the question of sentence. The statute seeks to achieve a socio-economic purpose and is aimed at attaining the ideal principle of proper sentencing in a rational and progressive society. The modern concept of punishment and penology has undergone a vital transformation and the criminal is now not looked upon as a grave menace to the society which should be got rid of but as a diseased person suffering from mental malady or psychological frustration due to subconscious reactions and is, therefore, to be cured and corrected rather than to be killed or destroyed. There may be a number of circumstances of which the Court may not be aware and which may be taken into consideration by the Court while awarding the sentence, particularly a sentence of death, as in the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge does not propose to impose death penalty on the convicted person it is unnecessary to proceed to hear the accused on the question of sentence. Section 235(2) of the Code will not be violated if the sentence of life imprisonment (SIC) awarded for that offence without hearing the accused on the question of sentence. (2) In all other cases the accused must be given sufficient opportunity of hearing on the question of sentence. (3) The normal rule is that after pronouncing the verdict of guilty the hearing should be made on the same day and the sentence shall also be pronounced on the same day. (4) In cases where the Judge feels or if the accused demands more time for hearing on the question of sentence (especially when the Judge propose to impose death penalty) the proviso to Section 309(2) is not a bar for affording such time. (5) For any reason the court is inclined to adjourn the case after pronouncing the verdict of guilty in grave offences the convicted person shall be committed to jail till the verdict on the sentence is pronounced. Further detention will depend upon the process of law. 30) In case, such an opportunity of hearing is not provided, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and factors which operate are of an entirely different order than those which come into play on the question of conviction. Therefore, there is bifurcation of trial as an accused has a right of pre-conviction hearing under Section 234 and secondly right of pre-sentence hearing under Section 235 of the Code. For pre-conviction hearing, the accused must be well informed as to what the exact prosecution case is and what evidence have been adduced by the prosecution to prove its case. It is for the prosecution to prove its case beyond reasonable doubt, as in case the pivot of the prosecution is not accepted, a new prosecution case cannot be made to imperil the defence. The prosecution as well as the convict has a right to adduce evidence to show aggravating grounds to impose severe punishment or mitigating circumstances to impose a lesser sentence. More so, appeal is a continuity of trial. 32) In Akhtari Bi (Smt.) vs. State of M.P., AIR 2001 SC 1528, this Court explained the nature of appeal observing as under:- Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly, sub-section (3) of Section 354 of the Cr.P.C. provides: 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. 152. In the context, we may also notice Section 235(2) of the Code of 1973, because it makes not only explicit, what according to the decision in Jagmohan Singh vs. State of U.P. AIR 1973 SC 947 was implicit in the scheme of the Code, but also bifurcates the trial by providing for two hearings, one at the pre-conviction stage and another at the pre-sentence stage . ..By enacting Section 235(2) of the new Code, Parliament has accepted that recommendation of the Law Commission. Although sub-section (2) of Section 235 does not contain a specific provision as to evidence and provides only for hearing of the accused as to sentence, yet it is implicit in this provision that if a request is made in that behalf by either the prosecution or the accused, or by both, the Judge should give the party or parties concerned an opportunity of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave a bearing on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of a Judge to cast aside the formalities of the court scene and approach the question of sentence from a broad, sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. The court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction. 40) In Rameshbhai Chandubhai Rathod vs. State of Gujarat, (2009) 5 SCC 740, this Court observed that in a case where the court imposes the death sentence both the aforesaid provisions, namely, Section 235(2) and Section 354(3) of the Code assume signal significance. The constitutional validity of Section 354(3) was upheld in Bachan Singh (supra) as learned Judges have said that the legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict compliance with those provisions in the way it was interpreted in Bachan Singh (supra) having regard to the development of constitutional law by this Court is a must before imposing death sentence. 42) It is clear that judgment is a formal intimation of the decision and its contents formally declare in a judicial way in open court. In other words, it is a declaration of the mind of the Court at the time of pronouncement. It is also clear that passing sentence without recording the judgment would amount to illegality. Pronouncing sentence before completing the judgment, that is, before preparing the essential part makes the sentence illegal and vitiates the conviction. 43) We have already adverted to the fact that the word judgment has not been defined in IPC, and even in TADA. However, the Code, particularly, Sections 353, 354, 362 and 363 make it clear that how the judgment is to be in a criminal trial, language and contents and the procedure to be followed in furnishing copy of the judgment immediately after pronouncement. It is also clear that the ultimate decision, namely, the judgment, shall be pronounced in the open court after the termination of the trial. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of court having reached to such findings A-3, 4, A-8 who are on bail are taken into custody of this court and their bail bonds stand cancelled. For recording statement of accused who are found guilty about their say regarding quantum of sentence to be imposed, the matter stands posted tomorrow. 44) On 27.07.2007, the Designated Court again read the following conclusion in respect of A-1. 82 a) Accused no. 1 Yakub Abdul Razak Memon out of remaining 5 accused at trial: is 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 Act, 1987 and Section 120-B of IPC read with offences mentioned in said charge and on said count said accused is hereby convicted and sentenced to suffer punishment of death and for the said purpose is ordered to be hanged by the neck till he is dead but subject to confirmation of same by Hon ble Apex Court about said part of sentence and is also ordered to pay a fine of ₹ 25, 000/- (Twenty Five Thousand.) (b) is also found guilty for offence punishable under Section 3(3) of TADA Act, 1987 for commission of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apprised that it will take some time to complete pronouncement of final order of conviction and sentence of remaining accused in this case and thus complete the judgment by getting same transcribed, corrected and signed. The said accused is apprised that a copy of judgment and order will be supplied to him free of cost after the same is completed and corrected in all respect and for said purpose the said accused will be ordered to be produced before Registrar of this Court on 26th September 2007 for supplying such copy subject to same being by then ready. (k) the court Sheristedar to handover operative part of order passed today to A-1. (l) Registrar to send A-1, A-3, A-4 and A-8 to Arthur Road Prison along with appropriate warrant. 27.07.2007 -Sd/- (P.D. Kode) Presiding Officer of the Designated Court (Under TADA (P) Act, 1987) For Bomb Blast Cases, Greater Bombay 45) On perusal of the conclusion with regard to A-1, it is very much clear that he was apprised regarding the offences for which he was found to be guilty. While A-1 was awarded death sentence, it is clear from the conclusion that he was apprised that sentence of death awarded to him is sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there are two stages in a criminal trial before the sessions court, the stage up to recording of a conviction and the stage post-conviction up to the imposition of sentence. A judgment becomes complete after both these stages are covered. (emphasis supplied) It is clear that a conviction order is not a judgment as contemplated under Section 353 and that a judgment is pronounced only after the award of sentence. In the case on hand, the Designated Judge pronounced the operative part of the judgment on 27.07.2007 and explained the substance of the judgment to the appellant in compliance with the requirements of Section 353(1)(c) of the Code. A perusal of the final judgment of the Designated Court shows that the Designated Judge has dealt with the issue of pronouncing the judgment under Section 353(1)(c) in detail. In para 5 of Part 46 of the final judgment, the Designated Judge explained the reasons for pronouncing the judgment under Section 353(1)(c) of the Code as follows:- 5) In the premises aforesaid but in light of 1) events which had occurred in past at trial, 2) keeping in mind attitude and conduct of accused as disclosed during course of trial, 3) mammoth subject m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 363, the Designated Judge in para 61 of Part 46 of the final judgment has dealt with the same as follows:- Having regard to the same, the word used immediately in sub-sec.363 (1) of Cr.P.C. will be required to be interpreted in context of subject matter involved in each of the case. In short in a case involving such huge subject matter furnishing of such copy after reasonable time after completion of passing of final order would never be said to be an act offending provisions of law or defeating right of accused. 50) We have already pointed out that this was a joint trial of 123 accused persons. It is also brought to our notice that the copy of the final judgment was provided free of cost to the appellant after the pronouncement of the orders with respect to each of the accused by the Designated Judge. Further, as is evident from para (j) of the order dated 27.07.2007, the appellant was apprised of the fact that a copy of the final judgment would be provided after completion of the order as regards sentence in respect of the remaining accused. 51) As pointed out earlier, the trial at the Designated Court involved 123 accused and findings were recorded for 512 charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rwise of specific accused. Whilst doing so, the Designated Judge explained the offences for which the accused were being convicted and invited the accused persons to make their statements with reference to the quantum of sentence. It is evident that at this stage, the detailed reasoning may not have been finally communicated to the accused, but the determination of the Court as well as the broad understanding of the operative part of the judgment was communicated. In case there is an objection on the part of the accused regarding not knowing the reasons for his conviction, it contextually means that he had not been made aware as to the specific pieces of evidence or marshalling of facts which led to his conviction. 54) In view of the same, there is no illegality or irregularity in the process followed and specifically under Sections 353, 354 and 235 keeping in mind the magnitude of the task before the Designated Judge inasmuch as he was trying 123 accused persons and had to deliver a judgment which runs in about 4,300 pages. In view of the above, we hold that the pronouncement of the judgment was in compliance with the above said provisions of the Code and does not violate any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious dates conveying their views to the Court. It is also clear that on consideration of the objections raised, the accused were awarded sentence and the same were ultimately conveyed to all the accused. It is not in dispute that neither the decision relating to ultimate conviction nor the sentence could be done in one day in respect of all the convicted 100 accused. Undoubtedly, it spread over to various dates and we are satisfied that the Designated Court completed its task by passing the impugned orders keeping in mind the procedural aspects to be followed in terms of the Code (vide Sections 353, 354, 362, 363 etc.) and at the same time, adhering to the principles of natural justice and the valuable right of the accused under Article 21 of the Constitution. Whether the impugned judgment is in violation of Section 362 of the Code. 58) It is also brought to our notice that several applications were made by various accused persons to amend the conviction orders which were dismissed as meritless by the Designated Court. In fact, the Designated Court dismissed the applications for amending the conviction orders of 99 accused persons. Learned senior counsel for A-1 relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation .--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Section 120B speaks about punishment of criminal conspiracy which is as under: 120B. Punishment of criminal conspiracy.-(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afeguard that in the case of a conspiracy other than a conspiracy to commit an offence some overt act is necessary to bring the conspiracy within the purview of the criminal law. The Bill makes criminal conspiracy a substantive offence, and when such a conspiracy is to commit an offence punishable with death, or rigourous imprisonement for a term of two years or upwards, and no express provision is made in the Code, provides a punishment of the same nature as that which might be awarded for the abetment of such an offence. In all other cases of criminal conspiracy the punishment contemplated is imprisonment of either description for a term not exceeding six months or with fine, or with both. 5 Prior to the amendment of the Code and the introduction of Sections 120-A and B, the doctrine of agency was applicable to ascertain the liability of the conspirators, however, conspiracy in itself was not an offence (except for certain offences). The amendment made conspiracy a substantive offence and rendered the mere agreement to commit an offence punishable. Prior to the amendment, unless an overt act took place in furtherance of the conspiracy it was not indictable (it would become indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to prove that these two parties came together and actually agreed in terms to have this common design and to pursue it by comroeff means, and so to carry it into execution. This is not necessary, because in many cases of the most clearly established conspiracies there are no means of proving any such thing and neither law nor common sense requires that it should be proved. If you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of an act, so as to complete it, with a view to the attainment of the object which they were pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, 'Had they this common design, and did they pursue it by these common means - the design being unlawful?' it is not necessary that it should be proved that these defendants met to concoct this scheme, nor is it necessary that they should have originated it. If a conspiracy be already formed, and a person joins it afterwards, he is equally guilty. You are to say whether, from the acts that have been proved, you are satisfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the commission of the offences. (d) In Nalini (supra), this Court explained that conspiracy results in a joint responsibility and everything said written or done in furtherance of the common purpose is deemed to have been done by each of them. The Court held: 583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles. 1. Under Section 120-A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left. 7. A charge of conspiracy may prejudice the accused because it forces them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of the object of conspiracy but also of the agreement. In the charge of conspiracy the court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime. (emphasis supplied) 64) The offence under Section 120B is a crime between the parties to do a particular act. Association or relation to lead conspiracy is not enough to establish the intention to kill the deceased. To make it clear, to bring home the charge of conspiracy within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence. 65) Since conspiracy is hatched in secrecy, to bring home the charge of conspiracy, it is relevant to decide conclusively the object behind it from the charges leveled against the accused and the facts of the case. The object behind it is the ultimate aim of the conspiracy. Further, many means might have been adopted to achieve this ultimate object. The means may even constitute different offences by themselves, but as long as they are adopted to achieve the ultimate object of the conspiracy, they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue so long as there are two or more parties to it intending to carry into effect the design. (Vide: Sudhir Shantilal Mehta vs. Central Bureau of Investigation, (2009) 8 SCC 1) 67) In Yash Pal Mittal vs. State of Punjab, AIR 1977 SC 2433, the rule was laid down as follows: The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal, several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Lal Narang vs. State (Delhi Admn.), AIR 1979 SC 1791, held that a conspiracy may be a general one and a separate one, meaning thereby, a larger conspiracy and a smaller one which may develop in successive stages. 71) In K.R. Purushothaman vs. State of Kerala, (2005) 12 SCC 631, this Court held: 11. Section 120-A IPC defines criminal conspiracy . According to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. ..The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy 72) In State of Maharashtra vs. Som Nath Thapa, AIR 1996 SC 1744, this Court held : to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non of conspiracy, may be proved either by direct evidence which is rarely available in such cases or it may be inferred from utterances, writings, acts, omissions and conduct of the parties to the conspiracy which is usually done. In view of Section 10 of the Evidence Act anything said, done or written by those who enlist their support to the object of conspiracy and those who join later or make their exit before completion of the object in furtherance of their common intention will be relevant facts to prove that each one of them can justifiably be treated as a conspirator. (See Also: Kehar Singh Ors. vs. State (Delhi Admn.), AIR 1988 SC 1883) 74) In Firozuddin Basheeruddin Ors. vs. State of Kerala, (2001) 7 SCC 596, this Court held: Like most crimes, conspiracy requires an act (actus reus) and an accompanying mental state (mens rea). The agreement constitutes the act, and the intention to achieve the unlawful objective of that agreement constitutes the required mental state ..The law punishes conduct that threatens to produce the harm, as well as conduct that has actually produced it. Contrary to the usual rule that an attempt to commit a crime merges with the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A' s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it. It is to be seen that there are three conditions in the Section. One is, before utilizing the section for admitting certain statements of the co- accused from a confession, there should be a reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong. According to this Section, only when this condition is satisfied in a given case, then only the question of utilizing the statement of an accused against the co-accused can be taken into consideration. Thus, as per Section 10, the following principles are agreed upon unanimously:- 1. There shall be prima facie evidence affording a reasonable gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the co-accused. A common charge of conspiracy was framed against all the co-conspirators including A-1. This is evident from the charges framed by the Special Judge which we have already extracted. On all the aforesaid charges, the appellant was found guilty by the Designated Court. The evidence in respect of A-1 is in the nature of the confessions made by the co-accused persons, the testimony of prosecution witnesses and documentary evidence on record. 81) The law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. In order to achieve the ultimate object, parties may adopt many means. Such means may constitute different offences by themselves, but so long as they are adopted to achieve the ultimate object of the conspiracy, they are also acts of conspiracy. For an offence of conspiracy, it is not necessary for the prosecution to prove that conspirators expressly agreed to do an illegal act, the agreement may be proved by necessary implication. It is also not necessary that each member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed to further the cause of the said conspiracy. Since we have elaborately discussed the constituents relating to the conspiracy, there is no need to refer to the same in subsequent appeals before us. It is also evident that a common charge of conspiracy was framed against all the accused persons. In view of the above, we are satisfied that the prosecution has placed sufficient acceptable materials to prove the charge of conspiracy beyond reasonable doubt which we will analyse in the later part of our judgment. Confession 85) In this heading, we have to consider the confession made by accused and co-accused persons relied on by the prosecution. Before going into the acceptability or otherwise and merits of the claim made by both the parties relating to the confession of the accused and co-accused, it is useful to refer to the relevant provisions of the Code as well as TADA. 86) Section 164 of the Code speaks about recording of confession and statement which is as under:- 164. Recording of confessions and statements.--(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as interpretation relating to Section 164 of the Code, particularly, recording of the same and procedures to be adopted, this very Bench in Rabindra Kumar Pal @ Dara Singh vs. Republic of India (2011) 2 SCC 490 after considering large number of judgments on the issue laid down the following principles: 64 (i) The provisions of Section 164 CrPC must be complied with not only in form, but in essence. (ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged and tried in the same case together with the accused. (2) The police officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily. The bracketed words [or co-accused, abettor or conspiractor] and the proviso in Section 15(1) above were added by way of an amendment on 22.05.1993. The amendments to TADA dated 22.05.1993 were not only in respect of Section 15(1) of TADA but also with respect to Section 21 of TADA (Presumption as to Offences under Section 3). The un-amended Section 21 is reproduced as under for ready reference: 21. Presumption as to offences under Section 3. (1) In a prosecution for an offence under sub-section (1) of Section 3, if it is proved (a) that the arms or explosives or any other substances specified in Section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no more res integra that a confession recorded under Section 15 is a substantive piece of evidence against the accused and co-accused. However, in case of co-accused, as a rule of prudence, the court would look upon corroborative evidence as well. 91) In Jayawant Dattatray Suryarao vs. State of Mharashtra, (2001) 10 SCC 109, this Court considered in detail the evidentiary value and admissibility of a confessional statement recorded under Section 15 of TADA and held that it is a settled legal position that a confessional statement recorded by a police officer is a substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator so long as the requirements of Section 15 and TADA rules are complied with. It was observed: 60. . Confessional statement before the police officer under Section 15 of the TADA is substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator for an offence punishable under the Act or the Rules. The police officer before recording the confession has to observe the requirement of sub-section (2) of Section 15. Irregularities here and there would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the maker. The weight to be attached to the truthful and voluntary confession made by an accused under Section 15 of the TADA Act came to be considered again in a recent three-Judge Bench decision in Devender Pal Singh v. State of NCT of Delhi. It was held in the majority opinion that the confessional statement of the accused can be relied upon for the purpose of conviction and no further corroboration is necessary if it relates to the accused himself. 18. There can be no doubt that a free and voluntary confession deserves the highest credit. It is presumed to flow from the highest sense of guilt. Having examined the record, we are satisfied that the confession made by the appellant is voluntary and truthful and was recorded, as already noticed, by due observance of all the safeguards provided under Section 15 and the appellant could be convicted solely on the basis of his confession. 93) In Mohmed Amin vs. Central Bureau of Investigation, (2008) 15 SCC 49, it was observed: 28. In Devender Pal Singh case majority of three-Judge Bench made a reference to Gurdeep Singh case and Nalini case and held (at SCC pp. 261-62, para 33) that whenever an accused challenges the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an to believe in the existence of facts mentioned in the confessional statement. (v) The requirement of sub-rule (5) of Rule 15 of the TADA Rules which contemplates a confessional statement being sent to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate who, in turn, will have to send the same to the Designated Court is not mandatory and is only directory. However, the court considering the case of direct transmission of the confessional statement to the Designated Court should satisfy itself on facts of each case whether such direct transmission of the confessional statement in the facts of the case creates any doubt as to the genuineness of the said confessional statement. 30. In Abdulvahab Abdul Majid Shaikh case this Court rejected the argument raised on behalf of the appellant that the confession made by him cannot be treated as voluntary because the same had been retracted and observed: 9. The police officer was empowered to record the confession and in law such a confession is made admissible under the provisions of the TADA Act. The mere fact that A-9 Musakhan @ Babakhan retracted subsequently is not a valid ground to reject the confessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Indian Evidence Act or the Code of Criminal Procedure. It also specifically provides that the confession so recorded shall be admissible in the trial of a co-accused for offence committed and tried in the same case together with the accused who makes the confession. Apart from the plain language of Section 15 which excludes the application of Section 30 of the Evidence Act, this Court has in many judgments in specific terms held that Section 30 of the Evidence Act has no role to play when the court considers the confession of an accused made under Section 15 of the TADA Act either in regard to himself or in regard to his co-accused. 95) In Ahmed Hussein Vali (supra), this Court, while relying upon Nalini (supra), held that if the confession made by an accused is voluntary and true, then it is admissible against the co-accused as a substantive piece of evidence, and that minor and curable irregularities in the recording of the confession like omission in obtaining the certificate of competent office with respect to confession do not affect the admissibility of the said evidence. It was further observed: 74. As far as the admissibility of the confessional statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment of Section 15 of TADA, the same have to be tested against the touchstone of Section 30 of the Indian Evidence Act under the general law. 98) The prosecution heavily relied on the confessional statements of co- accused persons, namely, Asgar Yusuf Mukadam (A-10), Abdul Gani Ismail Turk (A-11), Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Altaf Ali Mustaq Ali Sayed (A-67) and Mulchand Sampatraj Shah @ Choksi (A-97). It was submitted by senior counsel for A-1 that all the said statements were recorded prior to the date of amendment of TADA Act on 22.05.1993. Till the said amendment, the statement of an accused person was admissible only against him. However, the amended Section 15 of TADA made the statement of an accused person admissible in evidence against a co-accused, an abettor and a conspirator. It was submitted by learned senior counsel that as the recording of statement of A-10 was completed on 20.04.1993, A-11 on 18.04.1993, A-46 on 23.04.1993, A-67 on 19.04.1993 and A-97 on 19.05.1993 i.e., before the date on which the said Section 15 of TADA was amended and in the absence of express intention making the said amendment retrospective, the same will have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s another matter. 16. It is, therefore, clear that the Division Bench in Navjot Sandhu case clearly repelled the contention raised by the State counsel that a confession made by an accused could be used as against a co- accused .. 100) Reliance was also placed on the decision of this Court in Ganesh Gogoi vs. State of Assam (2009) 7 SCC 404. Paragraph Nos. 21 and 24 are relevant which read as under: 21. It appears that in the instant case the charge which was framed by the court against the appellant was under Section 3(5) of the said Act. But such a charge could not have been framed against him by the court inasmuch as on the alleged date of occurrence i.e. in September 1991, Section 3(5) of TADA was not brought on the statute. The framing of the charge was thus inherently defective .. 24 ..It is clear from the perusal of Section 3 and its interpretation in Hitendra Vishnu Thakur that the requisite intention is the sine qua non of terrorist activity. That intention is totally missing in this case. It is not there in the charge and it has also not come in the evidence. Therefore, both the framing of charges against the appellant under Section 3(5) and his convic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -accused within the fold of admissibility. Such stretching of the language of law is not at all warranted especially in the case of a law which visits a person with serious penal consequences [vide the observations of Ahmadi, J. (as he then was) in Niranjan Singh v. Jitendra, SCC at p. 86, which were cited with approval in Kartar Singh case]. We would expect a more explicit and transparent wording to be employed in the section to rope in the confession of the co-accused within the net of admissibility on a par with the confession of the maker. An evidentiary rule of such importance and grave consequence to the accused could not have been conveyed in a deficient language. It seems to us that a conscious departure was made by the framers of POTA on a consideration of the pros and cons, by dropping the words co-accused , etc. These specific words consciously added to Section 15(1) by the 1993 Amendment of TADA so as to cover the confessions of the co-accused would not have escaped the notice of Parliament when POTA was enacted. Apparently, Parliament in its wisdom would have thought that the law relating to confession of the co-accused under the ordinary law of evidence, should be al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is tried in the same case. It is primary evidence and not corroborative. 104) We are in entire agreement with the same. Accordingly, we hold that the confession of the co-accused, namely, A-10, A-11, A-46, A-67 and A-97 are admissible as primary and substantive evidence against the appellant (A-1) notwithstanding the amendment by Act 43 of 1993. 105) To sum up, it can easily be inferred that the position of law on the evidentiary value of confession is as under:- (i) If the confessional statement is properly recorded satisfying the mandatory provision of Section 15 of TADA and the Rules made thereunder, and if the same is found by the court as having been made voluntarily and truthfully then the said confession is sufficient to base conviction on the maker of the confession. (ii) Whether such confession requires corroboration or not, is a matter for the court to consider on the basis of the facts of each case. (iii) With regard to the use of such confession as against a co-accused, it has to be held that as a matter of caution, a general corroboration should be sought for but in cases where the court is satisfied that the probative value of such confessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing accused. The next day Tiger asked him to come and meet him. When he went to see Tiger, he was ready to go to Airport. At the airport, Tiger told him that he should stay in touch with A-1 and in case of requirement of money he should get the money from Choksi and give it to him. 3) On 13th February, he directed the confessing accused to collect ₹ 1 crore from Choksi for him which was done by the confessing accused with the help of co-accused Gani (A-11), Parvez (A-12), Mohd. Hussain, Salim and Anwar (AA). 4) On 17-18th February, Yakub Memon directed the accused to remain with Rafiq Madi (A-46). Next day the accused and Rafiq Madi picked up Irfan Chougule (Absconding) from Mahim and Shahnawaz and his companion from Bandra Reclamation and dropped them at the airport. 5) On return to Tiger s residence, Yakub directed the confessing accused to talk to Tiger on phone (during the telephonic talks Tiger pulled up the deponent accused for having not contacted him on phone). 6) On 9th March, he directed the confessing accused to transfer ₹ 25 lakhs by transferring the same from Tiger s account to Irani s account and transfer ₹ 10 lakhs to the Ohalia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Choksi (A-97). iv) Confessional Statement of Altaf Ali Mustaq Ali Sayeed (A-67) Confessional statement of A-67 (Exh. Nos. 819 and 819A) was recorded which referred the appellant as under: 1) In the presence of Yakub Memon, Amjad (A-68) told Altaf that the goods belonging to Yakub are to be shifted to some other places as these got burnt in the riots. 2) Yakub Memon asked accused Altaf Ali about whether the bags had been delivered to him by Amjad. 3) Yakub Memon arranged for tickets for some co-accused through accused Altaf Ali by sending money and passport through accused Rafiq Madi. 4) Yakub Memon sent 3 bags through Rafiq Madi to accused Altaf Ali for safe keeping. The bags contained arms/ammunition. 5) Yakub instructed Altaf Ali over phone for sending the bags to Al- Hussaini Building i.e., residence of Yakub Memon and his family members. 6) Earlier, Yakub Memon had asked Altaf Ali to keep the bags since he was giving so much business. When Altaf Ali told Yakub that he may be implicated, Yakub replied that he need not worry. v) Confessional Statement of Mulchand Sampatraj Shah @ Choksi (A-97) In his confessional statement, he narra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context, the material contained in the confession of A-10 that Tiger Memon while leaving for Dubai had told him to remain in touch with A-1 and having further said that in the event of A-1 requiring any money then he should collect the same from A-97 clearly reveals that A-1 himself having not collected the money from A-97 but he was handling it through other conspirators. The said matter is further clear from the confession of A-10 which reveals that when A-1 told him to bring an amount of ₹ 1 crore from A-97, the manner in which the said amount was brought by A-10 by going to the house of A-97 along with A-11, A-12 and two more persons. The further materials in the confession of A-10 regarding the transaction of ₹ 25 lakhs and ₹ 10 lakhs effected on 09.03.1993 clearly reveals that the account of Tiger Memon was operated by A-1 through A-10. The same is also clear after considering the manner in which the transaction had taken place on 10.03.1993 by A-1. 110) It has come in the confessional statement of A-67 that A-1 had asked him to book air-tickets for Dubai, and he agreed to do the same. It has also come in the confession of A-67 that he had booked ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onspirators and also to meet the expenses to be incurred during that period. As far as Tejarath International is concerned, it has come in the evidence of S.P. Udyawar (PW-441) that at the instance of A-1, in January/March, 1993, he booked tickets for Dubai for the following persons, viz., Dawood @ Dawood Taklya Md. Phanse @ Phanasmiyan (A-14) Abdul Razak Memon (A-5), Hanifa Abdul Razak Memon (A-6), Yakub Abdul Razak Memon (A-1), Rahin Yakub Memon (A-7), Essa @ Anjum Abdul Razak Memon (A-3), Yusuf Abdul Razak Memon (A-4) and Tiger Memon (AA) vide Exh. 1421. PW-441 had categorically stated that the tickets booked by him were collected by a person from Tejarath International sent by A-1. Besides this, Exh. 1192 shows booking of tickets for A-49, A-98, A-94, A-39 and A-14. Exh. 1192 is a statement of Tejarath International maintained by the firm of PW-441. The confessional statement of A-67 to the effect that in the second week of February, A-1 asked him to book tickets for Dubai, which he agreed to and he also admitted having booked 15-16 tickets for A-1 to Dubai in February 1993 and received money from A-46 for the same in the second week of February 1993 itself, the time when the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-10 dropped A-29, Irfan Chougule and one more person at the Airport. Confessional statements of A-36 and A-29 show that he was the person who traveled with them. A-10 in his confession corroborates with A-46. Exh. 1243 shows the booking of A-29 and Irfan Chougule by Air India for going to Dubai. PW-197 stated that Irfan Chougule left by Air India on 18.02.1993. Passport of A-29 (Exh. 1731) shows his departure on 18.02.1993. From the above, it is clear that the tickets booked by A-67 at the behest of A-1 were for the co-accused persons mentioned above, who first went to Dubai and, subsequently, to Pakistan for weapons training as revealed in their confessional statements and evidence of PW-2. The above confessional statements by the co-accused/conspirators would show that A-1 was playing a key role in furtherance of the above said conspiracy. 115) The funds of Tejarath International were also used for achieving the object of criminal conspiracy. It has come in the evidence of PW-441 that at the instance of A-1, he booked tickets for Dubai in January/March, 1993 as under: Exh. 1421 A-14 18th January, 1993 (Dawood Phanse) Exh. 1422 A-5, A-6, A-4 Exh. 1423 A-7, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence Act and led the Police and Pancha (PW-37) to the residence of Mohammed Hanif from where the following articles were recovered and taken into possession vide Panchnama Exh. 109: a) One suitcase (Article 42) was found containing 65 handgrenades and 100 electronic detonators. b) One VIP suitcase (Article 43) was found containing 40 hand grenades and 50 electronic detonators. During the examination of Akbar Khan Abu Sama Khan (dead) (PW-37) in the Court only 85 handgrenades were found in the two suitcases which were marked as Article 44 to 84 and one hand grenade which was sent to the FSL was marked as Article 45. c) The incharge of the store room of CID, Crime Branch, P.I. Pargunde has submitted the details of disposal in respect of remaining 20 defused hand grenades to the Court. The recovered articles were forwarded to the FSL and its report (Exh. 2439) proves the nature of article recovered. d) Out of 150 electronic detonators, one is marked Article 46 (one) to (three) and the remaining 149 were forwarded to the Bomb Detection and Disposal Squad (BDDS) for defusal. 119) It is clear from the confession of A-67 that 4 bags were given to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olour and round in shape. At that time, A-1 asked A-46 to stand outside the garage and watch the movements of the people. He was apparently sent outside by A-1 so that he could not see the contents which were being filled in the suitcases. He was again sent by A-1 to see whether A-67 was available. Accordingly, he went to the office of A-67 and as A-67 was not present, he came back to Al- Hussaini. At that time, he saw A-67 keeping the said suitcases in his Maruti Van. In the light of the evidence on record, it is clear that A-1 was in possession of handgrenades and electronic detonators which were concealed in the jeep and which were delivered to A-67 in three suitcases by A-1 through A-46. 121) PW-87, who was the driver working for Abdul Razak Suleman Memon (A- 5), has deposed that A-5 was having four vechicles, namely, red Maruti Van, blue Maruti Car, white coloured Maruti Car and one red coloured Maruti 1000. He also stated that A-5 was staying at 5/6th floor of Al-Hussaini Building alongwith his wife, daughter-in-laws and sons, namely, Essa @ Anjum Abdul Razak Memon (Anjumbhai) (A-3), Yusufbhai (A-4) and Ayubbhai (AA). He also stated about taking his blue colou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blasts, the Memons fled to Pakistan from Dubai. c) Their conduct of living together after fleeing from Bombay and not providing information about these blasts to the concerned authorities at Indian Embassy prove that the members of the Memon family were also co-conspirators in committing the said bomb blasts. With all the activities going on at the Al-Hussaini Building, on the eve of blasts, the members of Memon family were aware of the activities. d) They never disclosed the connection of Tiger Memon with the blasts to anybody. e) In Pakistan, they had obtained Pakistani Passports and National Identity Cards in assumed names. f) They had acquired properties, started a business in the name and style of M/s Home Land Builders, acquired fictitious qualification certificates, driving licenses etc. to lead a comfortable life all of which will show that they have chosen a comfortable life in Pakistan after causing blasts in Bombay and were determined not to return to India in their original identity. g) They failed to appear before the Court inspite of issuing of proclamation and the same being widely published. h) Instead of surrenderin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that Yusuf Ahmed Mohammed and A-1 are the same persons. c) Pakistani Passport No. AA-763651 in respect of Aftab Ahmed Mohammed (A- 2) shows that the passport holder left Karachi on 16.04.1993 and reached Bangkok on 16.04.1993 itself. The said person left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. The said person again left Karachi on 17.06.1994 and entered Dubai on the same day. The said person left Dubai on 03.07.1994. Again, the said person left Karachi on 09.07.1994 and entered Dubai on 09.07.1994 itself. Again, the said passport holder left Dubai on 25.08.1994 and entered India on 25.08.1994 itself. d) Pakistani Passport No. AA-763650 in respect of Akhtar Ahmed Mohammed shows that the said passport holder left Karachi on 16.04.1993 and reached Bangkok on 16.04.1993 itself. The said passport holder left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. The said passport holder again left Karachi on 17.06.1994 and reached Dubai on 17.06.1994 itself. Again, the said passport holder left Dubai on 25.08.1994 and reached India on 25.08.1994 itself. e) Indian Passport No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . From the Indian passport and Pakistani passport, it is clear that Zainab Ahmed Mohammed and Hanifa Abdul Razak Memon are the same persons. k) Indian Passport No. N-307801 in respect of Rahin Yakub Memon (A-7) shows that she left Bombay on 11.03.1993 and reached Dubai on 11.03.1993 itself. She left Dubai on 17.03.1993 and there is no arrival stamp of any country on the said passport. l) Passport No. T-0-780 in respect of Rahin Yakub Memon shows that Rahin Yakub Memon reached Delhi on 05.09.1994 on the said passport. m) Indian Passport No. C-672378 in respect of Rubina Suleman Memon (A-8) shows that she left Dubai on 20.03.1993. There is no arrival stamp of any country available on the said passport. n) Pakistani Passport No. AA-763653 in respect of Mrs. Mehtab Aftab Ahmed shows that she left Karachi on 16.04.1993 and reached Bangkok on 16.04.1993. Again, she left Bangkok on 27.04.1993. There is no arrival stamp of any country on the said passport. o) Pakistani Passport No. AC-001087 in respect of Mrs. Mehtab Aftab Ahmed shows that she left Karachi on 25.07.1994 and entered Dubai on the same day. She left Dubai on 10.08.1994 and entered Dubai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kartar Singh case because the same have not been incorporated in the Act and/ or the Rules. The court rejecting the contention that confession should not be relied upon further held in Paragraph 69 that: If the confessions of the appellants are scrutinized in the light of the above enumerated factors, it becomes clear that the allegations regarding coercion, threat, torture, etc. after more than one year of recording of confessions are an afterthought and products of ingenuity of their advocates. The statements made by them under Section 313 of CrPC were also the result of an afterthought because no tangible reason has been put forward by the defence as to why Appellants A-4 to A-8 did not retract their confessions when they were produced before the Magistrate at Ahmedabad and thereafter despite the fact that they had access to legal assistance in more than one way. Therefore, we hold that the trial court did not commit any error by relying upon the confessions of the Appellants A-4 to A-8 and A-10 and we do not find any valid ground to discard the confessions of Appellants A-4 toA-8 and A-10. 128) This Court, in Jameel Ahmed vs. State of Rajasthan, (2003) 9 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confession was true and was voluntarily made. (See also: Navjot Sandhu (supra). 133) In Balbir Singh vs. State of Punjab, AIR 1957 SC 216, it was held that the rule of practice and prudence requires a retracted confession to be corroborated by independent evidence. (See also: Parmananda Pegu vs. State of Assam, AIR 2004 SC 4197, Pyare Lal Bhargava vs. State of Rajasthan AIR 1963 SC 1094, Kehar Singh Ors. vs. State AIR 1988 SC 1883, Babubhai Udesinh Parmar vs. State of Gujarat (2006) 12 SCC 268). 134) It is therefore clear that where the original confession was truthful and voluntary, the Court can rely upon such confession to convict the accused in spite of a subsequent retraction and its denial in statement under Section 313. Since we have elaborately discussed the contention with regard to retraction of statements, there is no need to refer to the same in respect of other appeals before us. Corroboration of Confession: 135) Further, a contention was raised by learned senior counsel for the appellant that there was no sufficient corroboration of the confessional statements made by the accused. In reply to the above, the prosecution relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggling activities and the penalty proceedings under Section 167 of the Sea Customs Act, 1878 observed that many facts relating to illicit business remain in the special or peculiar knowledge of the person concerned in it and held thus: (SCC pp. 553-55, paras 30-32 and 37) 30. ... that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and-as Prof. Brett felicitously puts it - all exactness is a fake . El Dorado of absolute proof being unattainable, the law accepts for it probability as a working substitute in this work-a- day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate (Delhi Admn.)] Vague hunches cannot take the place of judicial evaluation. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties . (Per Viscount Simon in Stirland v. Director of Public Prosecution quoted in State of U.P. v. Anil Singh, SCC p. 692, para 17.) 55. When considered in the aforesaid background, the plea that acquittal of the co-accused has rendered the prosecution version brittle, has no substance. Acquittal of the co-accused was on the ground of non-corroboration. That principle as indicated above has no application to the accused himself. 141) In Ravinder Singh vs. State of Maharashtra, (2002) 9 SCC 55 this Court held that a confession does not require any corroboration if it relates to the accused himself. It was further held that there was enough evidence to provide general corroboration to the confessional statement. It was further held that minor contradictions in the statements of the accused were of no consequence once the confessions were held to be reliable. 142) In Jameel Ahmed vs. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 SCC 461, this court held that the confessional statements made by co-accused can be used to convict a person, and that it is only as a rule of prudence that the Court should look for corroboration elsewhere. It was held that: 27. Applying the principles which can be culled out from the principles set out above to the factual scenario, the inevitable conclusion is that the trial court was justified in its conclusions by holding the accused-appellants guilty. When an accused is a participant in a big game planned, he cannot take the advantage of being ignorant about the finer details applied to give effect to the conspiracy hatched, for example, A-7 is stated to be ignorant of the conspiracy and the kidnapping. But the factual scenario described by the co-accused in the statements recorded under Section 15 of the TADA Act shows his deep involvement in the meticulous planning done by Umar Sheikh. He organized all the activities for making arrangements for the accused and other terrorists. 144) In Sukhwant Singh vs. State, (2003) 8 SCC 90, this Court upheld the conviction solely on the basis of the confession of the co-accused, without any corroboration, that too in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not require corroboration then the same can be used for convicting the maker and/or the co-accused under the Act and/or the other enactments without independent corroboration. 146) In Mohd. Ayub Dar vs. State of Jammu and Kashmir, (2010) 9 SCC 312, it was held that even though the guidelines in Kartar Singh, have not been strictly followed, the confession of the accused recorded is admissible against him and can be relied upon solely to convict him. The following observations of this Court are pertinent: 59. It would, therefore, be clear, as rightly contended by Shri Rawal that merely because the guidelines in Kartar Singh v. State of Punjab were not fully followed, that by itself does not wipe out the confession recorded. We have already given our reasons for holding that the confession was recorded by A.K. Suri (PW 2) taking full care and cautions which were required to be observed while recording the confession. 60. In Ravinder Singh v. State of Maharashtra it has been observed in para 19 that if the confession made by the accused is voluntary and truthful and relates to the accused himself, then no further corroboration is necessary and a conviction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Bombay for the last 28 years. He was working as an Estate Agent and Property Dealer. He was arrested on 10.05.1993 by the Bombay Police in connection with the Bomb Blasts Case. He was arrested on the allegations that he was involved in the conspiracy, landing, planning, training and planting of bombs. In his evidence, he admitted that he took training in handling of weapons in Pakistan for a period of 10 days along with others. During the training, according to him, they were also imparted training for handling RDX. For the present, since we are concerned about the role of A-1 relating to conspiracy, we are constrained to refer his evidence relating to the said aspect. He admitted that he knew Javed Dawood Tailor (AA) known as Javed Chikna, Mushtaq @ Ibrahim Abudal Razak Memon known as Tiger Memon and Yakub Adbul Razak Memon as Yakub (A1). While identifying the accused concerned in the Court, PW-2 identified him in the fourth batch consisting of eight persons. He further stated that all the accused persons whom he identified before the Court have worked with him and admitted that they were together in the bomb blasts. It was further stated that all the persons including A-1 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the instructions of Tiger Memon. 150) He also explained about booking of a room in Hotel Persian Darbar at Panvel on 10.02.1993 in the name of Md. Usman Khan. On 11.02.1993, Javed Chikna came to his residence and asked for his passport telling him that Tigerbhai has called for it. PW-2 handed over his passport to Javed Chikna. PW-2 informed the Court that he had obtained the passport in January, 1987 and his passport No. is B-751254. At about 1 p.m., he received a call from Javed Chikna informing him to come prepared for going to Dubai and to meet him at the Hindustan Soda Factory, Mahim. At about 4 p.m., he met Javed Chikna at the said place and from there Javed took him to the Al Hussaini Building. In categorical terms, he asserted that Tiger Memon resides in the Al-Hussaini Building at Mahim. On 11.02.1993, when he went there, Tiger Memon and Yakub Memon (A-1) were sitting together in the flat. Tiger Memon told Yakub Memon to give six air tickets to Javed Chikna (AA). Thereafter, Yakub Memon (A1) gave six air tickets to Javed Chikna. PW-2 and Javed Chikna wished Khuda Hafiz to Tiger Memon and left the place. Thereafter, he along with others went to the airport to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, pistols, hand grenades and the use of RDX for preparing bombs. They were given a practical demonstration of an RDX bomb which was fitted with a half an hour timer pencil detonator. The bomb explosion resulted in a deafening sound followed by huge black smoke and it blew up stonesand earth. The next day, Tiger left the camp. On 27.02.1993, they all returned from the training camp to the bungalow where they were kept on their arrival at Islamabad. All of them were escorted by Ahmed Sahab and Jafarbhai and without any checking they were given boarding cards and they left Islamabad by a PIA flight and reached Dubai at about 1.30 to 2 p.m. On reaching Dubai, Tiger took all of them to a bungalow situated at Al- Rashidia. After finishing their meals, they discussed the communal riots in Bombay and Surat where Muslims had suffered. Thereafter, Tiger directed Irfan Chougule (AA-12) to bring the holy Quran from the other room. Tiger administered oath to all of them by placing their hands on the holy Quran that they will not disclose anything about the training in Dubai and Pakistan to any person including their family members and about their proposed future plans and in the event that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating that whatever they will do, they will do for Islam and would take revenge for the demolition of the Babri Masjid and communal riots. 154) In respect of a question relating to the purpose of the survey, he answered that the purpose was to shoot down the Municipal Councillors of BJP and Shiv Sena parties with AK-56 rifles by indiscriminately firing upon them. After conducting the survey, they went to meet Tiger Memon and briefed him and after that left for their house. He explained that the third meeting was held on 07.03.1993 and in that meeting Javed Chikna (AA- 7), Tiger Memon (AA-2), Nasim @ Yusuf (A-49), Kalu, Bashir Electrician (A- 13), Moin (A-43), Parvez Kelewala (A-100), Nasir Dhakla (A-64) and he along with Bashir Khan, Salim Rahim Shaikh, Akram @ Firoz and some persons who were with them in the training and Sardar Shahwali Khan (A-54) and Lalli were also present. In the said meeting, Tiger organized separate groups for surveying targets. The task assigned to his group was to survey the Sena Bhavan and Sahar Airport. According to him, as directed by Tiger, after completion of the work, he and others briefed Tiger. 155) On 08.03.1993, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, Tiger Memon cancelled the plan of Chembur Refinery. Tiger Memon instructed them that as they have learnt the work relating to detonators and timer pencils, they should fill RDX in the vehicles and place detonators and timer pencils in a proper way. They all agreed to do the same. Tiger Memon handed over some detonators and timer pencils to them. Tiger instructed them to go to the Share Bazaar i.e. Stock Exchange and Air India Building. Tiger also gave pencils to various persons and instructed Javed Chikna and Anwar Theba to pay ₹ 5,000/- to each one of them and also directed that they have to act and work according to the directions of Javed Chikna and Anwar Theba. 158) He further informed the Court that Tiger Memon conveyed to them that after the blasts in Bombay, there will be communal riots, so all of them should leave Bombay and they can contact him over the telephone. He gave his telephone No. of Dubai as 27 27 28. Thereafter, Tiger Memon met all of them and left in a Maruti Car with Anwar (AA-8), Asgar (A-10) and Shafi (AA- 9). He also stated that in the garage Abdul Akhtar (A-36), Iqbal (A-23), Moin (A-43), Kalu @ Mehmood, Nasim @ Yusuf (A-49) were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate. The CMM asked him about his involvement in the Bombay blasts which took place on 12.03.1993. He stated before the CMM about his involvement in the conspiracy and planting of bombs and expressed that he is repenting for what he had done. When the CMM asked him whether he will state the same in the Court, PW-2 answered in the affirmative, i.e., Yes. At this, the CMM offered him pardon and he accepted it. The entire conversation between the CMM and PW-2 was recorded by the typist and read over to him. He also expressed that tender and acceptance of pardon was correctly recorded and it bears his signature. On 28.09.1993, when he was granted pardon in the Killa Court, he was brought back to the prison and kept in Ward No. 10. 161) In the cross-examination, he admitted that he had been a resident of Mahim since 1985. With regard to several questions put by various counsel, in his cross-examination, he admitted that he was involved in the case from the stage of conspiracy till planting of bombs and is responsible for the explosions. He also admitted that he participated in all the stages of conspiracy till the achievement of the object. He admitted that the blasts tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they will be caught for the destruction caused in bomb explosions and the maximum penalty will be death. Assistant Commissioner of Police, Mr. Babar had told him in Killa Court that if he agreed to become a prosecution witness and make a true and full disclosure of events, he will be granted pardon to which he agreed. According to him, he read the Order Exh. 27. The order was directed to be produced before the Metropolitan Magistrate, 13th Court, Dadar for recording a statement under Section 164. In para 215 of the cross-examination, in categorical terms, he admitted my statement Exh. 25A is correctly recorded except small mistakes and so what I deposed before the Court in my examination-in-chief and recorded on Page 138 in para 88 to the effect that my statement recorded on 28.06.1993 and 29.06.1993 is correctly recorded, is correct. 166) In para 233 of his cross-examination, PW-2 has admitted that the contents of the retraction (Exh-D-2) are not his statements as it contains language and words of a qualified person conversant with legal terminology . For another question, he specifically denied that prior to becoming an approver, he was trying to extract money fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsignment was carried out as per the instructions of Tiger Memon. 170) Regarding filling of RDX and other ammunition, he stated that the work of filling RDX in the motor vehicles started after half an hour of Tiger Memon s departure. According to him, there were about 10-12 motor vehicles like Ambassador cars, Maruti cars, Commander jeeps and scooters. He explained that a motor vehicle bomb can be prepared by loading RDX explosive in its dicky or at any place in the vehicle and by fixing it with a timer pencil and that it will explode at the time set in the Timer Pencil. The time of explosion will deviate and depend on the temperature. The timer pencil which he was shown in the training had a duration ranging from half an hour to five hours. He and others were trained in Pakistan to prepare motor vehicle bombs. 171) In para 322, he asserted that in his statement before P.I. Pharande, DCP Bishnoi and P.I. Chavan, he had stated the truth and made full and true disclosure of all the facts within his knowledge. In his statement before these officers, he reiterated that he had stated all the relevant and important events within his knowledge. He also admitted that he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion from jail on 20.09.1993 expressing voluntary readiness and willingness to confess his guilt before the Court. In the said letter, it was further stated that during the investigation, it has transpired that a conspiracy was hatched between the accused persons in Dubai and in pursuance of the said conspiracy, some of the accused persons involved in the blasts were sent to Pakistan for training in handling RDX explosives, firearms, grenades etc. It further transpired during investigation that the said conspiracy was hatched in order to strike terror in people as well as to affect adversely the harmony between Hindus and Muslims and also to wage war against the Central and the State Government. In the said letter, it was further stated that except the participants, nobody had any personal knowledge of how, when, where and why the criminal conspiracy was hatched and how all the details were chalked out to perfect the said conspiracy, how different acts were carried out with determined intention of achieving the object of the said conspiracy including training in Pakistan, how RDX explosives and other firearms were smuggled into India, how the RDX laden vehicles were planted at diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dwritten application dated 20.09.1993 addressed by him from Bombay Central Prison to Shri M.N.Singh, Joint Commissioner of Police, Bombay. The accused identified his hand writing and his signature. On being confronted with this letter, the accused stated that the letter was written by him voluntarily. The Chief Metropolitan Magistrate, thereafter, asked the accused as to whether he was aware as to why he was being produced before him. By way of reply, the accused stated that he was involved in the Bombay blasts which took place in Bombay on 12.03.1993 along with other persons in a conspiracy and as he desires to disclose all these things in full detail, he is being produced before him. The Chief Metropolitan Magistrate further noted that he was prepared to make all the disclosures in detail. The accused also replied that he is ready and willing to stand as a witness for prosecution and would make all these disclosures if pardon is granted to him. The Chief Metropolitan Magistrate has also recorded that on going through the replies given by the accused to several queries, he was satisfied that the accused is ready and willing to give a full and true disclosure of all circumstances w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Deputy Commissioner of Police and his statement before the Designated Court are not borne out of fear but due to his conscience and repentence. We are also satisfied that his statement is believable and merely because at one or two places, he made certain comments on the omission/addition in the statement recorded by the Chief Investigating Officer, it does not materially affect the statement. On the whole, his testimony is reliable and acceptable and the Designated Court rightly relied on his entire statement in support of the prosecution case. 177) It was further contended by learned senior counsel that the evidence of the approver does not incriminate the appellant (A-1). The deposition of PW-2 reveals several incriminating circumstances against the appellant (A-1) which may be summarized as follows: (i) PW-2 identifies the appellant in Court. (ii) PW-2 has deposed that on being told by Tiger Memon (AA), the appellant gave six air tickets to Javed Chikna (AA) at Al-Hussaini Building on 11.02.1993 for going to Dubai. PW-2 and Asgar Mukadam (A- 10) were also present at the flat of Tiger Memon where the appellant handed over air tickets to Duabi. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with other co-conspirators. In fact, if A-1 had gone to the airport to receive his brother only, he would then have returned in the car with his brother alone. However, he came back in the car with other co-conspirators which also show his familiarity with other co-conspirators. 181) It has also been contended by learned senior counsel for A-1 that the evidence of an approver is very weak and reliance has been placed on various decisions of this Court to that effect. In the light of the provisions of Section 133 read with Section 114 Illus (b) of the Evidence Act this Court has held that the evidence of an approver needs to be corroborated in material particulars. The evidence of the approver has been corroborated in material particulars by way of primary evidence by the prosecution. The following table may summarise the corroboration provided by various materials and evidence on record: |Sr. | Deposition of PW-2 | Corroborating Evidence | |No. | | | |1 |Stay of co-accused and |Entries in the Big Splash Hotel (Register) | | |Meeting at Hotel Big | | | |Splash by Tiger Memon |Confession of co-accused A-24, A-12, A-15, A-29| ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... | | |Refinery | | |17 |Meeting at the |Confession of co-accused A-64, 13, 52, 100, 49 | | |residence of Tiger |and A-29. | | |Memon Distribution of | | | |Money | | |18 |Departure of Tiger |Exh. 2487-Tiger s Passport. | | |Memon |Confession of co-accused A-10 and A-9. | |19 |Filing of RDX | Confession of co-accused A-57, 12, 39, 49, 64,| | | |23 and A-43. | |20 |Planting at Shiv Sena |Confession of A-16, PW-11 and 12 identified | | |Bhawan |Pw-2 and A-16. | | | |PW-469-SEM, TI Parade. | | | |Letter to FSL 2447, 2469. | | | |FSL opinion 2447A, 2448. | |21 |Distribution of |Confession of co-accused A-32, 36, 39, 52, | | |Handgrenades for |Pws-5 and 6 and PW-13. | | |throwing at Mahim | | |22 |Member of Maruti Van |Seizure of Van-Pw-46 and PW-371. | | |MFC-1972 with other | | | |co-accused | | |23 |Presence at Tonk |Confession of co-accused A-20 and A-130. | |24 |Stay at Hotel Harry |Art. 2 | | |Palace-New Delhi in the|Exh. 3. | | |name of Nasir Khan. |Art. 3, Exh. 24. | | |Natraj-Howrah | | 182) It is further contended by the appellant (A-1) that the statement of approver dated 25.06.1993 given to DCP Bishnoi-(PW-193) was subsequently retracted in terms of a letter dated 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no mention on names Hanif Kadawala and Samir Hingora because at that time I was not concerned with them. Till Friday 28.07.1995 I did not tell about these letters like D-1 and others to any authority or to the court as it was not asked. I had made a complaint to the court. I have made an oral complaint 15/20 days of filing the retraction Exh. D-2. I did not make any complaint t the court as I was with the accused persons in jail and I was afraid of them. Para 91 .I sign in Hindi and English as per my choice. I can read write and understand English. ..It is true that his application was written by me and is signed by me and it was forwarded to the court. This application is written in my hand. This application was not presented by me but it was presented by hanif Kadawala and Samir Hingora. This application was obtained from me against my wish. I did not complain of this to the court at any time till today. I did not complaint to the Superintendent Jail about this application that it has been obtained from me by the other two accused against my wish either orally or in writing. Para 233 The contents of the retraction D-2 are not mine as it contains language and words of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olvement and non-involvement in my evidence. It is not correct to state that immediately, prior to my evidence in the court and during my evidence being recorded I coerced or induced the accused persons at the instance of police to turn approver in the case like me and failed. It is not correct to state that my evidence before the court and attribution of roles of various accused persons is guided by this consideration. Para 236 It is not correct to state that retraction D-2 was prepared by me with the assistance of co-accused persons on my request and willing. It is not correct to state that I approached the accused S M Thapa, R K Singh and Mr. Sayyed of the Customs Department by requesting them to prepare an effective retraction. It is not correct to state that retraction D-2 was read over and understood by me and I willingly signed it in the presence of jailor for dispatch to this court. Para 237 . It is correct to state that the co-accused facing trial in this case were unhappy on my becoming an approver. It is not correct to say that in order to convince the accused persons that in reality I have not become an approver and I have mislead the police by writing exhibit 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant (A-1) was present and he was asked to provide the tickets. The contradiction pointed out by the defence does not go to the root of the matter and is not a material contradiction. 184) In the light of the above discussion, we hold that the evidence of PW- 2 very clearly implicates the appellant (A-1) in respect of his involvement in the conspiracy. Grant of Pardon under Section 306 of the Code to Mohammed Usman Ahmed Zan Khan/(PW-2)/Approver 185) It was submitted by learned senior counsel for A-1 that TADA is a complete Code containing provisions for setting up of Designated Courts, conduct of trials, awarding of punishment etc. The said Act does not contain any provision for the grant of pardon as contained in the Code, namely, Sections 306, 307 and 308. It was submitted by learned senior counsel that the power to grant pardon is a substantive power and not a procedural power, and as such, the same has to be conferred specifically and cannot be assumed to be an inherent power of a Court. In the instant case, pardon has been granted by the Chief Metropolitan Magistrate, Bombay to PW-2 though there was no specific power of grant of pardon in TADA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) His reasons for so doing; (b) Whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub-section (1)- (a) Shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) Shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under sub- section (1) and has, been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case. (a) Commit it for trial- (i) To the Court of Session if the offence is triable exclusively by that court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) To a court of Special Judge appointed under the Criminal Law Amendment Act 1952 (46 of 1952), if the offence is triable exclusively by that court; (b) In any other case, make over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the pardon, and, if it finds that he has so complied, it shall notwithstanding anything contained in this Code, pass judgment of acquittal. In the case on hand, it was also contended that grant of pardon being a special power has to be conferred specifically. After adverting to the above mentioned provisions of the Code and in the absence of any specific exclusion or bar for the application for grant of pardon by Special Courts in the Code, in Harshad S. Mehta (supra), this Court has concluded but it does not necessarily follow therefrom that the power to tender pardon under Sections 306 and 307 has not been conferred on the Special Court . In para 22, the Court has held as under: 22. The Special Court may not be a criminal court as postulated by Section 6 of the Code. All the same, it is a criminal court of original jurisdiction. On this count the doubt, if any, stands resolved by the decision of the Constitution Bench of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak. In Antulay case the Constitution Bench said that shorn of all embellishment, the Special Court is a court of original criminal jurisdiction and to make it functionally oriented some po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the two Acts are similar which is not the position here. The scheme of the two Acts is substantially different as has been earlier noticed by us. It is also evident from Fernandes case as well . 188) After arriving at such a conclusion, the Bench, in para 55 held as under: 55. In the present case, we are unable to find either any inconsistency or any provision which may indicate expressly or by necessary implication the exclusion of the provision of the Code empowering grant of pardon. After saying so, the Bench concluded as under: 62. Our conclusion, therefore, is that the Special Court established under the Act is a court of exclusive jurisdiction. Sections 6 and 7 confer on the court wide powers. It is a court of original criminal jurisdiction and has all the powers of such a court under the Code including those of Sections 306 to 308. The above conclusion fully supports the stand taken by CBI and the ultimate decision arrived at by the Designated Court. 189) It was argued by learned senior counsel appearing for the CBI that the word notwithstanding appearing in various provisions of TADA shows that the Code would apply to all cases unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 4(2) of the Code makes it clear that all the offences under any other law shall be investigated, inquired into, tried and dealt with according to the provisons of the Code but subject to specific clause/reference of the Special Act. It is also clear from Section 5 of the Code that in the absence of specific provisons in any enactment, the provisions of the Code shall govern for the purpose of investigation, enquiry etc. As per Section 2(1)(b) of the TADA, Code means the Code of Criminal Procedure, 1973 (2 of 1974). Section 7(3) of TADA makes it clear that the provisions of the Code shall, sofaras may be and subject to such modification made in the Act, apply to the exercise of powers by the officer under sub-Section 1. Section 7(1) of TADA makes it futher clear that notwithstanding anything contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions shall apply to and in relation to a Designated Court as they apply to and in relation to a Magistrate: Provided further that in the case of any conviction in a summary trial under this section, it shall be lawful for a Designated Court to pass a sentence of imprisonment for a term not exceeding two years. (3) Subject to the other provisions of this Act, a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session. (4) Subject to the other provisions of this Act, every case transferred to a Designated Court under sub-section (2) of Section 11 shall be dealt with as if such case had been transferred under Section 406 of the Code to such Designated Court. (5) Notwithstanding anything contained in the Code, a Designated Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness, subject to the right of the accused to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is, therefore, to secure the evidence of an accomplice in relation to the whole of circumstances, within his knowledge, related to the offence and every other person concerned. In the light of the above analysis, we hold that the power to grant pardon under Section 306 of the Code also applies to the cases tried under the provisions of TADA and there was no infirmity in the order granting pardon to the approver (PW-2) in the facts and circumstances of the present case. 192) It is further contended on behalf of the appellant (A-1) that the deposition of PW-2 cannot be relied upon since the procedure laid down in Section 306(4)(a) of the Code was not followed. In the instance case, the CMM granted pardon to PW-2 on 28.09.1993 in compliance with the provisions of Section 306. Section 306(4)(a) requires that the Court of Magistrate taking cognizance of the offence shall examine the witness. In the instant case, where appellant has been charged with the offences under TADA, the Designated Court established under TADA alone has the jurisdiction to take cognizance of the offences under TADA. Section 14 of TADA provides that a Designated Court may take cognizance of any offence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sen submits that the only way to avoid this position is to read sub-sections (1), (2) and (2-B) of Section 337 of the Code and Section 8(1) of the Criminal Law Amendment Act, 1952 together and to construe them in a way to require that in every case where an accomplice is granted pardon, the chargesheet must be filed in the Court of a Magistrate. 6. We are unable to accept the contention. It is clear from the scheme of Section 337 that what is required is that a person who accepts a tender of pardon must be examined as a witness at the different stages of the proceeding. Where, however, a Special Judge takes cognizance of the case, the occasion for examining the approver as a witness arises only once. It is true that in such a case there would be no previous evidence of the approver against which his evidence at the trial could be tested, which would have been available to the accused had the proceeding been initiated in the Court of a Magistrate who under sub- section (2-B) of Section 337 of the Code is required to send the case for trial to the Special Judge after examining the approver. But we do not find anything in sub-section (2-B) of Section 337 to suggest that it af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93, he was posted as DCP, Zone IX, Bombay. In February 1993, Zone IX of Bombay was re-named as Zone X and he functioned as DCP for Zone X up till August, 1994. He recorded the confessional statement of 96 accused persons in this case. First, he recorded the confessional statement of A-11. He explained before the Court the relevant provisions of TADA for recording a confession, procedure to be followed etc. He also deposed before the Court that before recording a confession, he used to receive a letter of requisition for the same. He also explained that on each and every occasion, he explained his position to the accused who intended to make a confession and apprised him of the fact that there was no compulsion on the part of the accused to make a confessional statement and also informed the Court that he had also explained to the accused that the confession would be used against him. He further explained that upon the production of each accused, he verified that the accused was not under compulsion and was free from any pressure either by the investigating agency or by anyone else. He also informed the Court that after highlighting all the procedures and satisfying himself, he allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had not investigated any offence under TADA. He also clarified that in his Zone i.e. Zone-X, none of the bomb explosions had occurred and that no case was registered with regard to the same. He also stated that he was not asked to carry out any investigation in connection with LAC Case No. 389 of 1993 registered with Worli Police Station and according to him, the area under Worli Police Station does not fall within the jurisdiction of Zone X. 197) With regard to the allegation that confession was recorded in the Police Station, he explained that he had recorded the confession in the Chamber of DCP, Zone IV, at Matunga. According to him, the said office is situated in the building in which Matunga Police Station is also housed. However, he explained that the office of DCP, Zone IV is on the fourth floor of the said building. For a further query, he also clarified that Zone IV office is different office then the Matunga Police Station. He asserted that he had followed the procedures mentioned in the Rules and instructions while making the record of confession of all the accused whose confession were recorded by him. Evidence of Shri K.L. Bishnoi (PW-193) 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inside. He also informed the Court that every accused who made a statement was apprised of the fact of his position i.e., DCP. After making sure that the accused understood his position and after verifying the language in which he desired to make a statement, he recorded the same in his own handwriting. He was also used to tell the respective accused that during the said period of two days i.e., 48 hours, he would be kept at other Police Station away from the influence of I.O. 200) He further explained that he used to write the question after asking the same to the accused and record the answer to the said question after the same was given by the accused. He further made it clear that he was following the same procedure while making the record on the typewriter instead of writing the questions asked, he was dictating the same to the typist. After recording in the aforesaid manner, he would read over the whole confessional statement to the accused in the language known to him. He would also obtain signatures on all the pages of the concerned accused. After satisfying the accused about the confessional statement made and the procedure followed, he would handover the custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n held inadmissible mainly on two grounds. The first ground given by the learned trial Judge is that the power under Section 15 of the TADA Act was exercised either mala fide or without proper application of mind. The second ground on which they are held inadmissible is that they were recorded in breach of Rules 15(2) and 15(3) of the TADA Rules and also in breach of the requirements of Section 164 and the High Court Criminal Manual. The learned trial Judge held that the TADA Act was applied in this case without any justification. The permission was granted in that behalf without any application of mind. According to the trial court there was no material on the basis of which the TADA Act could have been invoked at that stage and that most probably the said Act was invoked in order to defeat the bail application filed by two accused in the High Court. In our opinion the trial court was wrong in taking this view. We have already pointed out earlier that Deshmukh had collected enough material on the basis of which reasonable satisfaction could have been arrived at that the acts committed by the two gangs were terrorist acts. It is no doubt true that it was wrongly reported by Deshmuk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same can be used against him and that there was no threat, coercion or allurement for making confession. (iv) When Appellant A-10 was produced before the Chief Metropolitan Magistrate, Delhi on 25-7-1996, he did state that he has not made any confessional statement but did not utter a word about any threat, coercion, inducement or allurement by Shri Harbhajan Ram (PW 103) for making confession. (v) At the end of the period specified in transit warrants, all the confessing appellants were produced before the Magistrate concerned at Ahmedabad with an application for their remand to judicial custody. None of them made any grievance of ill-treatment, torture (physical or mental), inducement or allurement by the investigating officers or supervising officers or claimed that he had made confession under any other type of compulsion. Even when they were in judicial custody, none of the appellants made a grievance that he was tortured, threatened or coerced by the investigating officers or supervising officers or that any allurement was given to him to make the confession. (vi) All the confessing appellants were facing trial in a number of other cases [this is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by the stenographers verbatim and each one of them appended signatures after satisfying that the same was correctly recorded. In reply to the suggestion made to him in cross-examination that the accused had been subjected to torture, PW 104 categorically stated that none of the accused was ill-treated by him or any other officer/official. The defence had made suggestion about the nature and extent of supervision exercised by PW 104 but it was not put to them that either instructed the investigating officers to torture the accused and forced them to confess their guilt. In this view of the matter, the confessions of Appellants A-4 to A-8 and A-10 cannot be held inadmissible on the premise that before recording of confessions they were in police custody and the statements were recorded by the officers supervising the investigation. 204) Similarly, in Lal Singh vs. State of Gujarat, (2001) 3 SCC 221, this Court was pleased to observe: 91. The next contention that Rule 15 of the TADA Rules has not been followed also does not carry any weight. For this purpose, we would refer to the evidence of PW 128, PW 132 and PW 133. PW 128 Satishchandra Rajnarayanlal, who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not possible to accept the contention of learned Senior Counsel Mr Sushil Kumar that as the accused were in police custody, the confessional statements are either inadmissible in evidence or are not reliable. Custodial interrogation in such cases is permissible under the law to meet grave situation arising out of terrorism unleashed by terrorist activities by persons residing within or outside the country. The learned counsel further submitted that in the present case the guidelines suggested by this Court in Kartar Singh were not followed. In our view, this submission is without any basis because in the present case confessional statements were recorded prior to the date of decision in the said case i.e. before 11-3-1994. Further, despite the suggestion made by this Court in Kartar Singh case, the said guidelines are neither incorporated in the Act nor in the Rules by Parliament. Therefore, it would be difficult to accept the contention raised by learned counsel for the accused that as the said guidelines are not followed, confessional statements even if admissible in evidence, should not be relied upon for convicting the accused. Further, this Court has not held in Kartar Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make a confessional statement. It is also clear that after recording their confession, the same was explained to them in the language known to them and in token of the same, they put their signatures and the officers counter signed the same. Though in the cross-examination, both of them have admitted certain procedural violations, in the case of one or two persons, however, the verification of their entire evidence and the confessional statements of the accused concerned clearly show that there is no flagrant violation of any procedure. We are satisfied that the Designated Court was fully justified in relying upon the evidence of PW-189 and PW-193. Special Executive Magistrates (SEM): 206) A contention was also raised that the SEMs were not Judicial Magistrates and their appointment was not made in accordance with law. It was contended that the SEMs who conducted the parades were not eligible to do so and so the entire evidence is vitiated. It is submitted that the Criminal Manual of the Bombay High Court in Chapter 1 expressly states that non-Judicial Magistrates or Honourary Magistrates should carry out identification parades. A Special Executive Magistrate is a non-Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must not take part in the parade. c) Witnesses should be prevented from seeing the suspect before he is paraded. d) The suspect should be placed among persons of similar height, age, weight etc. as far as possible. e) Witnesses should be introduced one by one and should be asked to identify the suspect. Witness should be free to touch any person. f) If parade takes place in a prison then the prison officer should be present throughout the parade. g) SEM should prepare a parade memorandum containing details of the time, place and date of the parade; details of panch witnesses; names of the persons standing in the parade; statements made by identifying witnesses etc. The particulars/materials placed by the prosecution show that the identification parades were carried out in compliance with the requirements of the Criminal Manual. 207) It was further contended by learned senior counsel for the accused that the identification parade should not have been conducted by the SEM. However, in the light of the provisions of the Criminal Manual, identification parades should preferably be conducted by non-Judicial Magistrates (i.e. Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by an Executive Magistrate can be conferred. Accordingly, Section 21 was enacted. 211) Special Executive Magistrates are appointed by the State Government for a particular purpose and can exercise powers so conferred upon them by the State as are exercisable by an Executive Magistrate. It is useful to note that the legality of Section 21 of the Code which provides for appointment of Special Executive Magistrates was also considered by this Court in State of Maharashtra vs. Mohd. Salim Khan (1991) 1 SCC 550. In this case, the State of Maharashtra appointed all Assistant Commissioner of Police (ACPs) in the Greater Bombay area as Special Executive Magistrates. This Court, while upholding the appointment of ACPs as Special Executive Magistrates held as under: The purpose of empowering the State Government to appoint Special Executive Magistrates was evidently to meet the special needs of a particular area or to perform particular functions in a given area. Such appointments without adequate powers would be futile and the legislation without providing such powers would be pointless. It can be assumed that the Parliament does not indulge in pointless legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay High Court. 213) Section 20 of TADA read with Section 21 of the Code permits a Special Executive Magistrate to carry out such functions as are required in a TADA case and accordingly in the instant case Special Executive Magistrates, inter alia, conducted identification parades of the accused persons. 214) The constitutional validity of Section 20 of TADA has been upheld by this Court in Kartar Singh vs. State of Punjab (1994) 3 SCC 569 wherein this Court upheld that Special Executive Magistrates appointed under Section 21 of the Code can record confessional statements for offences committed under TADA and perform such other functions as directed. This Court held as follows: 309. Therefore, merely because the Executive Magistrates and Special Executive Magistrates are included along with the other Judicial Magistrates in Section 164(1) of the Code and empowered with the authority of recording confessions in relation to the case under the TADA Act, it cannot be said that it is contrary to the accepted principles of criminal jurisprudence and that the Executive Magistrates and Special Executive Magistrates are personam outside the ambit of machinery for ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficers of the search party. The legislative intent was to control and to check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of article. Evidentiary value of Panchnama 218) Panchnama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence/crime. However, it is not only the recordings of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is likely to be collected. The document so prepared needs to be signed by the investigating officer who prepares the same and at least by two independent and impartial witnesses called Panchas , as also by the concerned party. The witnesses are required to be not only impartial but also respectable . Respectable here would mean a person who is not dis-reputed. One should also check if the witnesses are in their senses at the time of the panchnama proceedings. Only majors are to be taken as witnesses as minors witness may not withstand the legal scrutiny. 219) Panchnama can be used as corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his behalf, shall, in every instance, be permitted to attend during the search and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860). 174. Police to inquire and report on suicide, etc. (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If a search is conducted without warrant of court u/s 165 of the Code, the I.O. must record reasons and a search memo should be issued. 222) Section 174 of the Code enumerates the list of instances where the police officers are empowered to hold inquests, the proviso to this section mandates the inquest to be conducted in the presence of two or more respectable inhabitants of the neighbourhood. Circumstances when the Panchnama is inadmissible: 223) The Panchnama will be inadmissible in the court of law in the following circumstances: i) The Panchnama recorded by the I.O. under his supervision should not be hit by Sec.162 of the Code. The procedure requires the I.O. to record the search proceedings as if they were written by the panch witnesses himself and the same should not be recorded in the form of examining witnesses as laid down u/s 161 of the Code. ii) The Panchnama must be attested by the panch witnesses for it to be valid in the eyes of law. In case of a literate panch witness, he must declare that he has gone through the contents of Panchnama and it is in tune with what he has seen in the places searched, whereas for illiterate panch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 228) In Rameshbhai Mohanbhai Koli and Ors. vs. State of Gujarat (2011) 11 SCC 111, this Court held that Merely because the panch-witnesses have turned hostile is no ground to reject their evidence in toto but the same can be accepted to the extent that their version was found to be dependable on a careful scrutiny. 229) Keeping the above principles in mind, let us consider the recoveries made through prosecution witnesses. Altaf Ali Mustaq Ali Sayed, (A-67), in his confessional statement narrated about various articles and also identified the articles used for the preparation of bomb. He made his confessional statement before Mr. P.K. Jain (PW-189), the then DCP, Zone-X, Bombay. Since we are concerned about the recoveries, we are not adverting to his entire statement for the present. A-67 in his confessional statement implicated A-1 at many places. He informed the officer that A-1 asked him to get the tickets confirmed for Dubai on short notice since he was working as a recruiting agent. For this, he assured A-1 that it would be possible for him to arrange tickets even on short notice. Thereafter, when he returned to his office, in the evening, he received a call from Amj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scared. The other two bags were lying in his office. He further stated before the DCP that during this period, Amjad had gone to Karachi and London on 21/22nd March. He gave both the bags to Yakub Memon (A-1) through a Taxi Driver, viz., Mohammed Hanif, who used to handle all his parties etc. and told him to keep those bags with him and return as and when required or when he was asked for the same. He also stated that the police came to his office on 26.03.1993, at about 5 o clock and inquired about the bags which Amjad had given to him and he explained to them in detail. Later, he realized and believed that the bags kept in his office by Yakub Memon through Amjad contained gun powder, arms and ammunitions and he and his men used all that for the bomb blasts in Bombay. 231) In his confessional statement before the recording officer, he stated that, at first, A-1 told him that it contained office documents but later he informed him that it contained weapons etc. to take revenge against the loss of Muslims in Bombay riots. Later, he informed A-1 not to implicate him and not to create any problem for him. On this, A-1 told him to keep those two bags for few more days. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained 65 hand grenades. The same also contained 10 bundles of wire. The smaller suit case contained 40 hand grenades and 5 bundles of wire. He further explained that the chits were affixed on each of the hand grenades in both the said bags. The bundles of wire from both the bags were kept together and wrapped in a paper. The said packet was tied by means of a string. A seal was also affixed upon the said packet. The hand grenades from both the bags were of similar size. The same were of green colour. Each bundle of wire contained wires of green, red and yellow colour. The witness deposed that he had seen the suit-cases before this day. Accordingly, the suit cases were marked as Article Nos. 42 and 43 after showing the same to him. He mentioned that he had seen both the said suitcases in the year 1993 and had seen both the said suit cases on 22.03.1993. He reiterated that he had seen the said suit cases on the said day in the office of Altafbhai. Thereafter, the said suitcases were given to him by Altafbhai. When a specific question was put, namely, whether Article Nos. 42 and 43 shown to him had any connection with the suitcases given to him by Altafbhai, he answered that the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances in which the statement of the witness was recorded by the police and the reason for which he had deposed before the Court. In respect of a suggestion that he had made such a wrong statement at the instance of accused Altafbhai (A-67) and his agents, he denied the same. Regarding the acceptability or its evidentiary value regarding the number of hand grenades is to be discussed in the coming paragraphs. 237) Regarding recoveries, the prosecution also relied on the evidence of Ramesh Manohar Parkunde (PW-541) . According to him, in the month of March 1993, he was attached to the DCB CID, Unit VIII as P.I. He deposed before the Court that on 24.03.1993, senior P.I. V. S. Kumbhar of DCB, CID entrusted him with further investigation of C.R. 138 of 1993 registered with L.T. Marg Police Station on 23.03.1993. After taking charge of the said investigation, he registered C.R. No. 77 of 1993 as a corresponding C.R. No. for the said crime. On going through the earlier papers of investigation, he noticed a panchnama dated 23.03.1993 affected at L.T. Marg Police Station. He took charge of the articles recorded in the said panchnama and kept the same in the Strong Room of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ADA(P) Ac, BBC, Gr. Mumbai In BBC No. 1/93 The State of Maharashtra/CBI, STF Appellant vs. Dawood Ibrahim Kaskar Others. ..Accused AFFIDAVIT I, Ramesh Manohar Pargunde, 52 yrs Sr. Inspector of Police, Kherwadi Police Station, Mumbai, do hereby solemnly affirm and say as under:- 2. That I am filing this affidavit with a view to explaining the shortage of 20 hand grenades in muddemal property of this case. 3. I say that I was incharge of the store of muddemal property of Crime Bracnh, CID, Mumbai in the year 1993. On 22.05.1993, the Police Inspector of Worli Police Station had deposited 105 hand grenades and 150 detonators, which were seized in connection with LAC No. 389/93 of Worli Police Station, Mumbai in DCB, CID CR No. 112/93. 4. I say that I was informed that 20 hand grenades were found less in the muddemal property while recording the evidence of this case. I was, therefore, asked to check up the record of the above store of Crime Branch. I have personally checked and verified the said record. I say that 5 handgrenades were lying in the strong room of Crime Branch, CID. I say that inadvertently the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tiger s residence. On 10/11.02.1993, A-1 handed over three tickets to Dubai and three passports to A10 asking him to pick up A-100, A- 16 and Salim from Midland Hotel and handover the tickets and passports to them and also directed to drop them at the airport by taxi, all of which, was duly done by A-10. He further stated that at the airport, Tiger told them that he should keep in touch with A-1 and in case of any requirement of money he should get the money from Choksi (A-97). On 13th February, A-1 directed A-10 to collect ₹ 1 crore from Choksi (A-97) for him. A-10 collected the said money along with co-accued Abdul Gani (A-11), Parvez (A- 12), Md. Hussain, Salim and Anwar Theba (AA). On 17/18th February, A-1 directed A-10 to remain with Rafiq Madi (A-46). On the next day, A-10 and A-46 picked up Irfan Chougule (AA) from Mahim and Shahnawaz (A-29) and his companion from Bandra Reclamation and dropped them at the Airport. It was A-1 who directed A-10 to transfer rupees 25 lakhs from Tiger s account to Irani s account and also to transfer ₹ 10 lakhs to Ohalia s account which was duly done by A-10. The timing of these transfers if seen in the context of activi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.1993, at the time of departure to Dubai, Tiger told A-10 that he should remain in contact with A-1 and should bring money for him from A-97 in case A-1 needed money. From the above, it could safely be inferred that the account maintained with A-97 by Tiger Memon was being used for meeting the expenses incurred for achieving the objects of criminal conspiracy and A-1 was handling it through the other co-conspirators. 242) Confessional statements of A-10, A11 and A-46 clearly reveal that the relevant role of collecting money was played by A-10 at the behest of A-1. In the said context, the material contained in the confession of A-10 that while leaving for Dubai, Tiger Memon told him to remain in touch with A-1 and having further told that in the event of A-1 requiring any money A-10 should collect the same from A-97 clearly reveals that A-1 himself having not collected the money from A-97 but he was using A-10 for the said purpose and was actively involved in day-to-day activities. The same is further clear in the confession of A-10 which reveals that after A-1 having told him to bring about an amount of ₹ 1 lakh from A-97, the manner in which the said amount was b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through A-46 which containing arms/ammunition etc. A-67, thereafter, returned five bags to A-1 that included four bags which were received on the first occasion and one of the three received on the second occasion. The above confessional statement of A-67 corroborated the evidence of Akbar Khan Abusama Khan (A-37). A-46 in his confessional statement also stated about the delivery of three suit cases to A-67 by A-1. Though some discrepancies are there, in the light of the abundant materials, if we read the entire confessional statement of A-67, those were not of much importance. 247) It is further seen that in all important meetings with Tiger Memon, particularly, at the residence Al-Hussaini, A-1 used to interact with him. It is further clear that the confessional statement of A-67 corroborated the evidence of PW-37, PW-506 and PW-282. It has also come in evidence that A-1 was in possession of handgrenades and electronic detonators which were concealed in the jeep and which were delivered to A-67 in three suit cases by A-1 through A-46. It is also seen from the evidence of PW-87, driver working for A-5 and PW-630 Manager of Hind Automobile and Company that the Maruti Car b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was incharge of all money transactions and monitoring the activities of all the persons concerned in the movement. The prosecution has also established that A-1 owns a blue Maruti Car which was used for carrying explosives and detonators one day before the blast took place on 12.03.1993. A-1 left for Dubai on 11.03.1993 with the Indian Passport and thereafter he entered Pakistan with Pakistani Passport. Though he was not one among the persons who carried arms and ammunitions used for the blast but it was he who stood behind them from starting till the end, viz., conspiracy, planning and making all the arrangements for sending certain persons to Pakistan for training in handling of arms and ammunitions. We are satisfied that the prosecution has established all the charges leveled against A-1 and the Desginated Court, after analysing all the materials including oral and documentary evidence and the independent witnesses, rightly convicted him. 250) A perusal of the above confessions by the co-conspirators would show that the appellant (A-1) was playing a key role in furtherance of the above said conspiracy. The above evidence along with further material relied on by the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons formed unlawful assembly as mentioned above, while throwing the hand grenades at the said hutments at Mahim Causeway, which resulted into death, injuries and damage to properties and thereby committed an offence punishable under Section 148 IPC. At head Fifthly; Each of the appellants, by causing the death of three persons as mentioned above by throwing hand grenades, committed an offence punishable under Section 302 read with Section 149 IPC. At head Sixthly; Each of the appellants, by causing the aforesaid explosion by throwing hand grenades which resulted into injuries to various persons, committed an offence punishable under Section 307 read with Section 149 IPC. At head Seventhly; Each of the appellants, by causing the aforesaid explosion by throwing hand grenades, which resulted into injuries, committed an offence punishable under Section 324 read with Section 149 IPC. At head Eighthly; Each of the appellants, by causing the aforesaid explosion by throwing hand grenades, which resulted into damage to the properties worth ₹ 50,000/- committed an offence punishable under Section 436 read with Section 149 IPC. At head Ninthly; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Sections 3, 4 read with Section 6 of Explosive Substances Act, 1908 read with Section 149 IPC. (charge ninthly). Evidence: 255) The evidence against the appellants is in the nature of their own confessions, confessions made by other co-accused, the testimonies of prosecution witnesses, including eye witnesses and documentary evidence on record. A brief account of the evidence brought on record in respect of each of the appellant is as under. 256) Mr. Manish, learned counsel for the appellants, after taking us through the relevant materials submitted that the appellants joined the company of Tiger Memon and had gone to Dubai and Pakistan due to circumstance and by force. He also submitted that they had no intention to go to Dubai and to attend weapons training at Islamabad. Their main aim was to secure some job at Dubai. He also pointed out that though they participated in the smuggling activities of the Tiger Memon group, they had no intention to involve in the terrorist act as claimed by the prosecution. According to the counsel, though the prosecution has relied on their own confessional statements inasmuch as all of them have retracted from their sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they were received by Ayub Memon (AA), brother of Tiger Memon, at Dubai Airport. (iii) He met Tiger Memon at a flat in Dubai and did not protest when he was told by Javed Chikna that he had come for training in handling arms and making bombs. (iv) He left for Islamabad from Dubai by a Pakistan International Airlines flight. (v) They were taken out of the Islamabad Airport without any checking. (vi) He was renamed as Shakir and other co-accused were also given fake names when they were in Pakistan. (vii) Tiger Memon also joined them in training at Pakistan and stayed with them for two days. (viii) He was trained in firing AK-56 rifle, preparation of bombs using RDX (black soap), using detonator and to throw hand grenades. (ix) After return from Pakistan, he along with A-36, A-39 and other conspirators met in a flat where Tiger Memon brought a copy of holy Quran and everyone including him, took oath to keep the training in Pakistan a secret and that after reaching Bombay they would take revenge. Tiger Memon also delivered a lecture on communal riots in Bombay. (x) On 07.03.1993, he attended the meeting in the house of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvening night between 11/12.03.1993, he and other co- accused, filled RDX in vehicles at the Al-Hussaini building. (vii) On 12.03.1993, he along with A-32, A-39, Bashir (A-13), Moin (A-43), Mehmud and Salim drove to Fishermen s colony at Mahim and threw hand grenades. Reference to A-32 and A-39 (i) A-32 and A-39 took training in Pakistan (ii) A-32 and A-39 took oath on holy Quran to wage Jehad in Bombay. (iii) A-32 and A-39 threw hand grenades at Fishermen s colony at Mahim. Confessional Statement of Feroz @ Akram Amani Malik (A-39) Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. In his confessional statement, he made the following assertions:- (i) He deposed that he was the brother-in-law of co-accused Fazal Abdul Rehman (A-76). He left for Dubai on 08.02.1993 along with Niyaz Mohd. @ Aslam Iqbal Ahmed Shaikh (A-98). (ii) He and other co-accused were received by Ayub Memon (AA), brother of Tiger Memon, at Dubai Airport. He also met Nasim Ashraf Shaikh Ali Barmare (A-49) at Dubai. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused persons. After arrest, the accused persons were produced before the Court number of times in 1993 and 1994. While the confessions were recorded in April and May 1993, retractions have been made only in May, 1994, i.e. after a gap of 1 year. Since we have elaborately discussed the contention raised by learned counsel with regard to the same in the main appeal, there is no need to refer the same once again. Confessional Statements of co-accused: Confessional Statement of Bashir Ahmed Usman Gani Khairulla (A-13) 262) Confessional statement of A-13 under Section 15 of TADA has been recorded on 16.05.1993 (10:30 hrs.) and 18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The prosecution submits that the confession of A-13 is pertinent since he was one of the co-accused who accompanied the appellants to the Fishermen s colony at Mahim on 12.03.1993. His confession corroborates the confessions of the appellants in material aspects. Reference to A-32 (i) A-32 attended a conspiratorial meeting on 10.03.1993 at the residence of Mobina. (ii) On 11.03.1993, at 11.00 p.m., A-32 took him to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing camp in Pakistan when he and others reached there. (ii) A-32 was present at Al-Hussaini Building in the flat of Tiger Memon along with Tiger, Shafi, Anwar, Bashir Muchhad, Nasim, Parvez and Sardar Khan. (iii) A-32 received ₹ 5,000/- from Tiger Memon Reference to A-36 (i) A-36 was present in the training camp in Pakistan when he and others reached there. (ii) A-36 received training in handling of arms and explosives in Pakistan. (iii) A-36 returned from Dubai along with him, Feroz, Zakir and Mohd. Rafiq. (iv) A-36 was present at Al-Hussaini Building compound on the night of 11.03.1993 along with Tiger, Shafi, Anwar, Bashir Muchhad, Nasim, Parvez, Zakir and Sardar Khan where vehicle bombs were prepared. (v) On 12.03.1993, at about 12:30 noon, A-36 was present in the flat of Tiger Memon at Al-Hussaini Building along with Javed Chikna, Bashir Muchhad, Bashir Mahimwala, Shafi, Usman, Salim Dandekar, Anwar and Zakir. (vi) A-36 received ₹ 5,000/- from Tiger Memon. Reference to A-39 (i) A-39 was present in the training camp in Pakistan when he and others reached there. (ii) A-39 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.03.1993, A-39 (referred to as Akram ) was seen at the residence of Tiger Memon at the Al-Hussaini building along with other accused persons where vehicles were being loaded with RDX. (iii) A-39 along with other conspirators boarded the Maruti Car to Mahim Slopeway, Koliwada and threw hand grenades. After that, he took over the bag of remaining hand grenades and the pistol given to him earlier and left the vehicle near Bandra Reclamation. Confessional Statement of Shaikh Ali Shaikh Umar (A-57) Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. He made the following assertions:- Reference to A-32 (i) A-32 took out rifles from the sack and cleaned them. (ii) A-32 carried food for other co-conspirators at the Al-Hussaini building. Reference to A-39 (i) A-39 was a member of the meeting addressed by Tiger Memon, where he was asked to take revenge against the killings of Muslims in Bombay and Surat. (ii) He along with others were paid ₹ 5,000/- by Tiger Memon in the said meeting. Confessional Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal statement of A-98 under Section 15 of TADA has been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993 (11:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. He made the following assertions:- Reference to A-32 (i) A-32 received training in handling of different types of arms and ammunitions, hand grenades and making of bombs by using RDX. (ii) On 01.03.1993, after all others also reached Dubai, A-32, at the instance of Tiger Memon, took oath after placing his hands on holy Quran. He also heard about the speech given by Tiger regarding the riots in Bombay. Reference to A-36 (i) A-36 received training in handling of different types of arms and ammunitions, hand grenades and making of bombs by using RDX. (ii) On 01.03.1993, A-36 along with other conspirators, at the instance of Tiger Memon, took oath in Dubai after placing his hands on holy Quran. A-36 also heard about the speech given by Tiger regarding the riots in Bombay. Reference to A-39 (i) On 08.02.1993, A-39 along with Niyaz proceeded to Dubai. At the airport, he was received by Ayub Memon and stayed with Tahir. (ii) A-39 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses: Deposition of Mohammed Usman Ahmed Zan Khan (PW-2) (Approver) 264) PW-2 deposed as under:- Reference to A-32 (i) He knew A-32 as Zakir and identified him in the court. (ii) He accompanied A-32 and other co-accused persons to Dubai in February, 1993. (iii) Ayub Memon (AA), brother of Tiger Memon, received them at Dubai Airport and Tiger Memon also visited them at Dubai. (iv) In Dubai, A-32 informed PW-2 and other co-accused persons that Tiger Memon had asked them to come to Dubai Airport. All the accused persons, including A-32, then boarded a flight to Islamabad, Pakistan. (v) On reaching Islamabad, all the accused persons including A-32, were taken out of the Airport without any immigration check. (vi) In Pakistan, all of them received training in use of RDX, pencil detonators, guns and hand grenades. (vii) On return to Dubai, all the accused persons met at a flat where Tiger Memon was also present. In this conspiratorial meeting, they discussed about the riots in Bombay and took oath on holy Quran to take revenge and not to disclose the secret of the training in Pakistan to anyone. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) He also identified the car bearing No. MP-13-D-385 in which the appellants came to Mahim slopeway in order to throw hand grenades. Deposition of Santosh Patil (PW-6) PW-6 deposed as follows: (i) He is a resident of Fishermen s Colony at Mahim. He witnessed the said incident while he was waiting near Municipal School at Mahim Slope. (ii) He deposed that the appellants came in a Maruti Van to the said Colony and the number of the said vehicle was MP 385. (iii) He identified A-52, A-32, A-36, A-13, A-43 and A-39 in the Identification Parade conducted in the Court on 20.09.1995. (iv) He also identified A-32, A-36 and A-39 in the identification parade dated 15.05.1993 conducted at Mahim Police Station by Special Executive Magistrate, PW-469. Deposition of Shashikant Shetty (PW 13) PW-13 is an eye-witness and a resident of Mahim Fishermens Colony. He deposed as under:- (i) He came out of his house after hearing the sound of explosion. (ii) He identified A-52, A-32, A-36, A-39, A-13 and A-43 in Court. (iii) He participated in the identification parade dated 15.05.1993, conducted at Mahim police station by Special Executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established the cause of death to be the injuries received on 12.03.1993. Achyut Shamrao Pawal (PW-542) also proved the death of 3 persons at Fishermen s Colony in the said incident. Vehicle used for committing the act: 270) The prosecution has brought to our notice that the vehicle used by the appellants for traveling to Fishermen s Colony was purchased by Shafi (AA) which has been proved through the following witnesses: Deposition of Kailash Govind Rao Baheti (PW 342) He deposed as follows:- On 18.01.1993 I had received a telephone call given by Shakil Hasham from Bombay. Shakil requested me to book one red coloured Maruti Van in the name of Asif Darvesh resident of M.G. Road, Indore and another new Maruti Van of blue colour in the name of Shri Kasam Ahmed residing at Indira Nagar, Ujjain. He also requested me to register both the Maruti Van at Indore and send the same to Bombay. He also told me that the payments of the same would be made at Bombay to the driver. I quoted a price of ₹ 1,69,000/- per vehicle inclusive of registration and transport charges. I was having red coloured Maruti Van brought by me from M/s Bhatia Company, Gurgaon, Haryana and blue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs who had brought the delivery of the said vehicles. Accordingly, he took the delivery by making payment to the drivers. The said vehicles were insured through Vijay A. Tamore (PW-338). Evidence of travel to Dubai for training in Pakistan: 271) The Immigration Officer, Asmita Ashish Bhosale (PW-215) proved the Embarkation card ( X -314 ) that was submitted at the Sahar Airport on 11.02.1993 by A-32 who was flying to Dubai. The Immigration Officer, Vishambhar Yadavrao Mitke (PW-212) proved the Disembarkation card given by A-32 at the time of arrival in Bombay from Dubai on 03.03.1993. The depositions of PWs-215 and 212 establish that A-32 left India on 11.02.1993 for Dubai and returned on 03.03.1993. These depositions further corroborate the confessional statement of A-32 wherein he admitted to flying to Dubai on 11.02.1993 and returned on 03.03.1993. 272) The Immigration Officer, Chandrakant Gangaram Sawant (PW-244) proved the Disembarkation card given to him by A-39 while flying to Dubai from Bombay on 08.02.1993. It is submitted that the deposition of PW-244 corroborates the confessional statement of A-39 wherein he stated that he left for Dubai on 08.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich he did not do. Further, on a holistic reading of the entire body of evidence, it is clear that from the very beginning, the appellants have willingly participated in the successful execution of the object of conspiracy. The argument of coercion is a belated argument and necessarily a product of afterthought. It is further contended on behalf of the appellant (A-32) that the reasons for his involvement in the conspiracy were (i) money, (ii) provocation, and (iii) riots. It is further contended that there is no record anywhere that someone will take care of the family of the appellant (A-32) after the blasts. In such a situation, appellant would not have willingly participated in such a conspiracy without having thought about his family. In reply, learned senior counsel for the CBI contended that he was fully conscious of the conspiratorial acts and willingly participated in the conspiracy. The loss, if any, suffered by the appellant during the riots does not justify his terrorist act of killing innocent people. The fact that appellant (A- 32) was fully conscious of his acts is further established from his conduct subsequent to the incident, wherein he traveled to Karnata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incing and even the credibility of the witness has not been shaken in the cross-examination. The testimony of Laxman Patil (PW-5) is further corroborated by the testimony of Santosh Patil (PW-6). A perusal of all the above materials clearly shows that the prosecution has established all the charges and the Designated Court rightly convicted them for the same. Criminal Appeal Nos. 628-629 of 2008 Mohammed Mushtaq Moosa Tarani (A-44) .. Appellant vs. State of Maharashtra, Through STF, CBI Bombay .. Respondent ********* 282) Mr. Priyadarshi Manish learned counsel appeared for the appellant (A- 44) and Mr. Gopal Subramanium, learned senior counsel, duly assisted by Mr. Mukul Gupta, learned senior counsel and Mr. Satyakam, learned counsel for the respondent 283) The instant appeals are directed against the final judgment and order of conviction and sentence dated 27.09.2006 and 18.07.2007 respectively, whereby the appellant has been convicted and sentenced to Death by the Designated Court under TADA for the Bombay Bomb Blast Case, Greater Bombay in BBC No. 1/1993. Charges: 284) A common charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 ₹ 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant (A-44), by planting the aforesaid explosive laden suitcase in Hotel Centaur, Juhu Tara Road, which caused damage to the properties, committed an offence punishable under Section 3 of the Explosive Substances Act, 1908 and; At head twelfthly; The appellant (A-44), by planting the aforesaid explosive laden suitcase and by possessing the RDX in the said suitcase unauthorisedly committed an offence punishable under Section 4(a)(b) of the Explosive Substances Act, 1908. 285) The Designated Judge found the appellant guilty on all the aforesaid charges. The appellant has been convicted and sentenced for the above said charges as follows: Conviction and Sentence: (i) The appellant (A-44) has been sentenced to death under Section 3(3) of TADA (P) Act, 1987 and Section 120-B of IPC read with the offences mentioned in the said charge. In addition, the appellant was also ordered to pay a fine of ₹ 25, 000/-. (charge firstly) (ii) He has been sentenced to RI for 12 years along with a fine of ₹ 50,000/-, in default, to further undergo RI for one year for the commission of offence under Section 3(3) of TADA. (charge secondly) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing eye witnesses; and (iv) documentary evidence. Conspiracy: 287) As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. The cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer the same once again. Confessional Statement of the appellant - Mohammed Mushtaq Moosa Tarani (A- 44) 288) The prosecution pointed out the involvement of the appellant (A-44) in the conspiratorial acts which is evident from his own confession recorded under Section 15 of TADA on 26.05.1993 and 28.05.1993 at 18.30 hrs by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said confessional statement is summarized hereinbelow: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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