1

conf.5.09

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CONFIRMATION CASE NO.5 OF 2009 The State of Maharashtra versus 1. Sayeed Mohd. Hanif Abdul Rahim, 2. Ashrat @ Arshad Shafiq Ahmed Ansari, 3. Fehmida w/o Sayyed Mohd. Hanif .. .. Appellant (Ori. Complt.)

Respondents (Ori.Accused Nos.1 to 3)

WITH CRIMINAL APPEAL NO.880 OF 2009 Sayyed Mohd. Hanif Abdul Rahim, Oc.Rikshaw Driver, R/o.D/7, Salim Chawl, Chimatpada, Marol Naka, Andheri (W), Mumbai-400 059. .. (Presently lodged at Nagpur Central Prison convicted prisoner in the present matter). versus The State of Maharashtra (At the instance of DCB, CID, Mumbai) .. Respondent

Appellant (Ori.Accused No.1)

WITH CRIMINAL APPEAL NO.857 OF 2009 Ashrat @ Arshad Shafiq Ahmad Ansari Age 32 years, Plot No.515, Junnat Nagar, C.D.Barfiwala Marg, Andheri (W), Mumbai 400 058. Presently in Judicial Custody .. Mumbai Central Prison (Arthur Road Jail), Mumbai. versus The State of Maharashtra (Through : DCB, CID Unit-VIII) .. Respondent

Appellant (Ori.Accused No.2)

conf.5.09

WITH CRIMINAL APPEAL NO.1128 OF 2009 Fehmida w/o Sayyed Mohd. Hanif, Age 43 years, Occ. Housewife, R/o.D-7, Salim Chawl, Chimatpada, .. Marol Naka, Andheri (E), Mumbai-400 059. (At present in Yerawada Central Prison). versus The State of Maharashtra (At the instance of DCB , CID, Mumbai) .. Respondent

Appellant (Ori.Accused No.3)

WITH CRIMINAL APPEAL NO.4 OF 2009 The State of Maharashtra versus 1. Mohd. Hasan Mohd. Anas Shaikh @ Hasan Bateriwala, Near Nurul Islam Masjid, Sanjay Nagar, Hill No.3, Ghatopkar (W), Mumbai. 2. Mohd. Rizwan Mohd. Issaq Ansari @ Rizwan Ladoowala, Rajiv Gandhi Nagar, Burma Shell Line, Near Gulistan Madarasa, Kurla (E), Mumbai. .. Appellant

..

Respondents (Ori.Accused Nos.4 & 5)

WITH WRIT PETITION NO.2539 OF 2008 The State of Maharashtra versus 1. Mohd. Hasan Mohd. Anas Shaikh @ Hasan Bateriwala , Near Nurul Islam Masjid, Sanjay Nagar, Hill No.3, Ghatkopar (W), Mumbai. Petitioner (Ori.Opponent)

conf.5.09

2. Mohd. Rizwan Mohd. Issaq Ansari @ Rizwan Ladoowala, Rajiv Gandhi Nagar, Burma Shell Line, Near Gulistan Madarasa, Kurla (E), Mumbai. Respondents (Ori Accused Nos. 4 & 5) APPEARANCES : Ms.Poornima H. Kantharia, A.P.P. a/w Shri J.P.Yagnik, A.P.P. for State (Appellant in Conf.Case No.5/2009, Petitioner in W.P.No.2539/2008, Appellant in Cri.Appeal No.4/2009, and Respondent in Cri.Appeal Nos.880/2009, 857/2009 and 1128/2009). Shri Khan Abdul Wahab for ori.accused no.1 (Respondent no.1 in Conf.Case No.5/2009 and Appellant in Cri.Appeal No.880 of 2009). Shri Sushan Kunjuraman and Shri Mahesh Kadam for ori.accused no.2, Respondent no.2 in Conf.Case No.5/2009 & Appellant in Cri.Appeal No.857/2009). Shri Sudeep Pasbola a/w Ms.Maharukh Adenwalla i/by Rahul Arote for ori.accused no.3 (Respondent no.3 in Conf.Case No.5/2009, Appellant in Cri.Appeal No.1128/2009). Shri Sharif Shaikh for ori.accused nos.4 and 5 (Respondent nos.1 & 2 in W.P.No.2539/2008 & Appellant in Criminal Appeal No.4/2009).

CORAM : A.M.KHANWILKAR AND P.D.KODE, JJ.

DATE OF RESERVING : NOVEMBER 12, 2011. DATE OF PRONOUNCING : FEBRUARY 10, 2012.

JUDGMENT ( PER : P.D.KODE, J. ) 1. All the aforesaid proceedings arise out of either(a)Report/Direction dated 10th May 2005 given by Review Committee constituted under section 60 of Prevention of

conf.5.09

Terrorism Act, 2002 (hereinafter referred as "POTA") as amended by Prevention of Terrorism (Repeal) Act, 2004 (hereinafter referred as "Repeal Act") or; (b)Order dated 17th November, 2008 passed on Exh D-116 in POTA Special Case No.1 of 2004 during the midst of trial after evidence of both the sides at trial was over or; (c)Final judgment and order delivered on 6th August, 2009 in POTA Special Case No.1 of 2004 of the Special Court under POTA Act for Greater Mumbai. 2. The said POTA Special Case No.1 of 2004 was registered on

the basis of charge sheet filed on 5th February 2004, by Chief Investigating Officer (PW 103) ACP Suresh Walishetty at the conclusion of investigation of four crimes for commission of offences under section 120-B read with sections 302, 307, 326, 324 of IPC under sections 3,4,5 of Explosives Substances Act, 1908 and under sections 5 and 9 (b) of Indian Explosives Act, 1884 and under sections 3,4,5 and 20 of Prevention of Terrorist Act, 2002 against in all six named accused in the charge sheet along with wanted accused Shafakat Ali, Khalid Maqsood, Jehangir, Bilal, Samiullah and Rehman.

3.

During the pendency of the case, pursuant to the prosecution

Application dated 5.5.2004 at Exh-P, under section 307 of Code of

conf.5.09

Criminal Procedure (hereinafter referred to as `the Code'), Jehangir Patne (numbered as accused no.4 in the said charge sheet) was accorded pardon and was subsequently examined as an Approver PW2 at the trial.

4.

Accordingly, charge as described in detail in Exh-P5, was

framed at said trial on 23rd June 2004, for commission of various offences under IPC, Explosives Substances Act, Indian Explosives Act, Prevention of Terrorist Act, and Damage to Public Property Act, etc. against remaining five accused named in the charge sheet. While framing the said charge Mohd. Hasan Mohd. Anas Shaikh @ Hasan Batterywala numbered as accused no.5 and Mohd. Rizwan Mohd. Issaq Ansari @ Rizwan Ladduwala numbered as accused no.6 in the charge sheet, were renumbered as accused nos.4 and 5 respectively (who are hereinafter referred to as `A4 and A5').

5.

After evidence of both the parties was adduced at the trial,

Review Committee constituted under section 60 of POTA as amended by Repeal Act, gave hearing to said accused A1 to A3, A4 and A5 and their counsel as well as to the learned Public Prosecutor. After

examining the Police Report comprised of statements of witnesses, seizure memos and other material, the said Committee on 10th May

conf.5.09

2005 opined that the said A4 and A5 were not found connected with the incident of terrorism in the four bomb blast cases and therefore there is no basis for their prosecution under POTA. However, A1 to A3 and PW2 (numbered as accused no.4 in the charge sheet) were prima facie connected with offences under POTA and therefore, there appears no misuse of power in invoking POTA against them. The said Committee therefore directed State of Maharashtra to proceed as per Clause (a) of sub-section (3) of Section 2 of Repeal Act qua the said A4 and A5.

6.

Thereafter, said A4 and A5 preferred MA No.42 and MA

No.44 of 2005 to invoke Section 60 (7) of POTA and to discharge them from the said case. The same were rejected by the Special Judge, POTA Court Mumbai vide order dated 11th August 2005. A4 preferred Criminal Appeal No.783 of 2005 while A5 preferred Criminal Writ Petition No.2363 of 2005 before this Court challenging the said order. Both the said proceedings were disposed of by this Court by order dated 24th October 2005. This Court held that the said A4 and A5 cannot be discharged directly merely on the basis of opinion of the Review Committee. The Court directed the prosecution to file an application for withdrawal of the case against A4 and A5 under section 321 of the Code.

conf.5.09

7.

On 18th November, 2005 A4 and A5 filed application

Exh.D-54 before POTA Court to call upon Special PP to inform the Court whether he intends to make an application as directed by this Court vide order dated 24th October, 2005. In response to the said application, on 24th November, 2005, Special Public Prosecutor filed application P-319 for recalling PW8 for further examination-in-chief on account of new material being introduced during his crossexamination. In the said application P-319, it was contended that the same had become necessary in view of direction given by this Court to take out an application under Section 321 of Cr.P.C. It was further contended that the same was necessary as Special PP had to formulate his opinion about existence or non-existence of prima facie case under POTA against A4 and A5 for making an appropriate application as directed by this Court.

8.

By the common order, passed on 29th November, 2005, on

application Exh.P-319 and Exh.D-54, the POTA Court kept the prayer for recall of PW8 for consideration after prosecution examines all the witnesses excepting the investigation officer, as ordered earlier by the said Court upon the earlier application. On 5th December, 2005 Special Public Prosecutor for the matters stated in the application submitted that it was not desirable at all to apply for withdrawal from

conf.5.09

prosecution under POTA against A4 and A5.

Ultimately on 3rd

January, 2006 the learned Special PP preferred application Exh.P-343 under Section 321 of the Code stating that for the matters stated therein, after giving due weightage to the observations and

recommendations of the Central POTA Review Committee, he is of opinion that there is prima facie case under POTA against A4 and A5.

9. passing

During the hearing of Exh.P-343 and Exh.D-54 and while common order thereon, on 17th January,2006, the POTA

Court was required to adjourn the matter in view of the Advocate for A4 and A5 had sought time and the POTA Court continued hearing and passing of the order on 23rd January, 2006. By the order

completed on the said date, POTA Court, for the reasons stated therein, disposed of the said application. The POTA Court held that, no case for withdrawal under Section 321 of the Code was made out.

10.

A5 preferred S.L.P. No. 187 of 2006 before the Apex Court

against the order of this Court dated 24th October, 2005 contending that in the light of report of Review Committee, he ought to have been discharged without following the procedure as laid down under section 321 of the Code. After grant of leave, the said S.L.P. was numbered as Criminal Appeal No. 359 of 2006. The same was clubbed along with

conf.5.09

the other matters of accused persons from Godhara Fire incident. It was later on disposed of by the Apex Court vide order dated 21st October 2008 with following observations in paragraph 51.
"We therefore hold that once the Review Committee on review under section 2(3) of the Repealing Act, expresses the opinion that there is no prima facie case for proceeding against the accused, in cases in which cognizance has been taken by the Court, such cases shall be deemed to have been withdrawn. The only role of the Public Prosecutor in the matter is to bring to the notice of the Court, the direction of the Review Committee. The Court on satisfying itself as to whether such an opinion was rendered, will have to record that the case stands withdrawn by virtue of section 2(3) of the Repealing Act. The Court will not examine the correctness or propriety of the opinion nor exercise any supervisory jurisdiction in regard to such a opinion of the Review Committee. But we make it clear that if the opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is set aside, the Court where the proceedings were pending, will continue with the case as if there had been no such opinion."

11.

Relying upon the said observation, A4 and A5 preferred

Application Exh.D-116, for exonerating them from the charges framed against them on the basis of report given on 10th May 2005 by Review Committee of POTA. That application was allowed. It is held that prosecution against said A4 and A5 is deemed to have been withdrawn as per clause (a) of sub-section 3 of section 2 of Prevention of Terrorism (Repeal) Act, 2004. Thus, the said A4 and A5 were ordered to be released if otherwise not required to be detained in connection with some other case, with further rider that the case against the said accused would be revived in the event of this court

10

conf.5.09

setting aside the said opinion given by Review committee on POTA in a writ proceeding preferred by aggrieved party.

12.

The prosecution on 2nd December 2008 preferred above

referred Writ Petition No.2539 of 2008 for quashing and setting aside the direction given by the POTA Review Committee on 10th May 2005. Similarly, on 22nd December 2008 the prosecution preferred above referred Criminal Appeal No.4 of 2009 under section 378(1) of the Code against the order dated 17th November 2008 discharging A4 and A5.

13.

In view of the deemed withdrawal of prosecution against A4

and A5 and their consequent release from the case, POTA Special Case No.1 of 2004, thereafter, proceeded against the remaining accused i.e.
accused no.1 Syed Mohammed Hanif Abdul Rahim, accused no.2. Ashrat @ Arshad Shafiq Ahmed Ansari and accused no.3 Fehmida wife of accused no.1 Syed Mohammed Hanif. At the conclusion of the said trial, the learned trial Judge held that out of the charges framed against said A1 to A3, each of them was guilty for commission of offences as described in the table given hereinbelow and sentenced each of them for respective offence for which they were found guilty, as stated in the third column against the respective offence mentioned in second column of the said table :

11

conf.5.09

Sr.No. Found guilty and Or the convicted for the count of offence of charge 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 120B of IPC 120B r/w 302 IPC 120B r/w & 307 IPC 120B r/w sec .427 IPC

Sentence awarded for the same

Death & fine Rs.5000/- I.d.R.I.for 2 yrs each. Death & fine Rs.5000/- I.D.R.I.For 2 yrs each Life and fine Rs.5000/- I.d. R.I.For 5 yrs R.I.for 2 yrs

120B r/w sec,.3 (2)(a) R.I. For 2 yrs of POTA Act Sec.3 (3) of POTA Act Imprisonment for life fine Rs.5000/I.d.R.I. for 2 yrs

Offence punishable Imprisonment for life. u/s 4(b) of POTA Act Sec.5 r.w. 9(B) of R.I. for two years Explosives Act 1884. Sec.3 of Explosives Imprisonment for life Substances Act,1908 Sec.4 of Explosive Substances Act. Section 3 of Prevention of Damage to Public Property Act, 1984 R.I. For 20 yrs R.I. For 5 yrs fine Rs.1000/-I.d. R.I.for 6 months

12.

Sec.4 of Prevention of 7 yrs fine Rs.2000/- I.d. R.I. 6 damage to public months. Property Act, 1984

However, by the same judgment and order, the learned trial Judge also came to the conclusion that the said accused were not guilty

12

conf.5.09

for the remaining offences for which they were charged and acquitted them from the said charges framed against them. 14. The reference made by the learned trial Judge for

confirmation of death sentence given to each of the aforesaid accused has given rise to above stated confirmation case No.5 of 2009. 15. Accused no.1 has challenged the judgment and order

convicting and sentencing him by preferring Criminal Appeal No.880 of 2009. While Accused no.2 has challenged the judgment and order convicting and sentencing him by preferring Criminal Appeal No.857 of 2009. While Accused no.3 has challenged the judgment and order convicting and sentencing her by preferring above stated Criminal Appeal No.1128 of 2009. 16. The said charge sheet giving rise to registration of said

POTA Special Case no. 5 of 2004 was submitted by Chief Investigating officer ACP Shri.Walishetty (PW 103) at the end of investigation of four different crimes registered with four different police stations regarding an attempt to commit explosion and three explosions committed by using the bombs within the area under concerned police station. For the sake and convenience necessary details regarding the same can be tabulated as under :-

13
Sr. Attempt or Bomb No. Explosion planted at in Date & Time of incident 2ndDec, 2002 at 21.40 hrs Crime For No.regd with under police Stn. upon FIR of C.R.No. 400/2002 of MIDC police station API Tanaji Jadhav PW63 C.R.No. 235/03 Ghatkopar police Stn. Bus conductor Dilip Wankhede PW 54

conf.5.09
Offences Effect incident/ explosion of

1.

Seepz bus Depot MIDC (Attempt)

BEST Bus no.MH01 - 8765 of Route No.336

Indian Penal Code,Explosives Substances Act,Indian Explosives Act.

Nil as bomb was defused before explosion

2.

Karani lane, LBS junction Ghatkopar

BEST 28thJuly, Bus 2003 . No.MH-0 21.10 hrs 1-H-8246 Route no. 340

..do..and also Prevention of Damage to Public Property Act.

2 persons killed, 60 passengers were injured 2 auto rickshaw and 2 motor cycles and several shops damaged of public and private property of value to the tune of Rs. 16.30 lacs

3.

Zaveri Motor Bazar near taxi Mumbadevi No.MH-0 temple 2-R-2022

25th August, 2003 at 12.40 hrs

C.R.No. Penal Code & 36persons 201/03 Indian Explosives killed, of L.T. Marg Act. 138 were Police Stn. injured, another taxi property worth driver Shri. of 95 lacs Lalsaheb including 41 Singh PWvehicles shops, 27 and residential houses were damaged.

4.

Gateway of India, Opp.Taj Mahal Hotel

Motor Taxi MH-02R-2007

25th August, 2003 at 13.05 hrs

C.R.No. 206/03 of Colaba police station P.C. Camilo Reis PW 14.

Penal Code, Explosives Substances Act, Explosives Act, Prevention of Damage to Public Property Act and POTA Act.

16 persons killed, 46 injured, 20 cars damaged,

14

conf.5.09

17.

In all 54 persons were killed and 244 persons were injured

and the property worth Rs. 1,60,00,000/- was damaged in said three incidents of explosion caused by means of bombs. Investigation in the above four C.Rs. registered at concerned police stations were initially carried out at the said Police Stations. However, no clues regarding culprits involved in crime registered with MIDC as well as Ghatkopar Police Station was forthcoming even until occurrence of incident of explosion at Zaveri Bazar and at Gateway of India and or until the A2 was arrested during the investigation of crime registered with Ghatkopar Police Station on 31st of August, 2003. For the sake of convenience the details pertaining to the initial investigation are narrated while considering the prosecution evidence regarding respective incidents. The investigation of the said four crimes

registered at the said police stations was afterwards taken over by the Crime Branch by registering crime number of DCB CID as shown in the table given below :
Sr. No. 1 2 3 4 Original CR Number registered with Police Station C.R. No.400/02 of MIDC Police station DCB CID CR Nos. CR 157 of 2003

C.R.No.235 of 2003 of Ghatkopar Police CR No.75 of 2003 Station C.R.No.201 of 2003 of L.T.Marg Police CR No.91 of 2003 Station C.R.No.206 of 2003 of Colaba Police Station CR No.86 of 2003

15

conf.5.09

ARREST OF ACCUSED NOS.1, 2 & 3 :-

18.

Upon receipt of secret information Police Officers of DCB

CID of Unit-XI regarding the suspicious behaviour of Accused No.2 Ashrat (hereinafter referred to as `A2'), A2 was apprehended by the team of Police Officers consisting PI Savde, PSI Talekar (PW-98), PSI Kandalgaonkar (PW-99), PSI Vankoti (PW-97), PSI Toradmal (PW-51) and the staff members on 31.8.2003 at about 15:30 hrs. A2 was thereafter extensively interrogated by said Police Officers and during interrogation clue was received regarding his involvement in planting of bomb in Ghatkopar BEST Bus. A2 was then formally

arrested at about 20:20 hrs. by PSI Todarmal (PW 51). Under arrest cum seizure memo (Exh. P-385) prepared in presence of panchas Mukund Ingrulkar (PW-50) and Shri Vijay Kadam, the articles found during the personal search of A2 were seized.

19.

The said articles seized during the search were i)motor

driving licence in name of A2 Ashrat Ansari Shafiq Ahmed Ansari. ii)identity card issued by Janata Party in the name of A2 as member of said party. iii)Four paper cuttings of Urdu News paper. iv)A white paper chit bearing some matter in Urdu language on one side and the

16

conf.5.09

telephone No. 6391553 on other side. v)a white paper chit bearing the name of Jahid Yusuf Patni (APPROVER PW-2) with his e-mail address shaabadahmed@yahoo.com. vi)A visiting card of Noor Electricals owned by S. M. Hanif (Accused No.1) and A.B. Shaikh with the Mobile No. 9892077831-9892451164 of Nasir and Landline No. 28527761 of Hanif mentioned on the overleaf of the above visiting cards. vii)Seven passport size photographs, cash amount of Rs. 2,200 and other miscellaneous articles.

20.

A.2,

thereafter,

during the interrogation effected in the

Office of Unit No.XI situated at Kandivali, gave clue that A2 along with his associates i.e. deceased accused Nasir, A1 and A3-wife of A1 had prepared bombs and placed the same in BEST bus of Route No. 336 on 2.12.2002 at Seepz and in a BEST bus of Route No. 340 at Ghatkopar on 28.7.2003. He also made a statement revealing his willingness to show the place where the remaining material out of material used for preparing Bomb was kept by him. The same was recorded as (Exh. P-393). A2 thereafter led Police Officers and panchas towards his house on first floor of the hutment in Juned Nagar, Juhu Galli, Andheri (West), Mumbai, entered in the room and

produced a tin box kept below the cot which contained 30 gelatin sticks, 3 alarm clocks, and 8 detonators. The same were seized by PSI

17

conf.5.09

Vankoti (PW-97) in presence of panchas Sunil Bhatia (PW-53) and Sameer Sayar vide panchnama (Exh.P-393-A).

21.

After returning to the office of DCB CID Unit-XI along with

said panchas and police A2 again informed the Police Officers that he would show them the place where the bombs were prepared by him and his associates. A2 thereafter led police officers and panchas towards the house of A1 Hanif and A3 Fehmida situate at Salim Chawl, Room No. D-7, Chimat Pada, Marol, Andheri (East), Mumbai. A1 & A3 were in the said house along with their two daughters Farheen and Sakira. A2 Ashrat led Police Officers and panchas

towards loft of the room where bombs were prepared by him and his associates. Police Officers thereafter took search of house of A1 and from the cupboard seized about ten documents/articles.

22.

The same were i) passport of A1 bearing No. Q-548661,

dated 15.10.80 issued by Mumbai Passport Office. ii) Passport in the name of A1 bearing No. P-468148, dated 11.9.93 issued by Jeddah Passport Office. iii)Passport in the name of A3 bearing No.A-3581902, dated 6.8.97 issued by Mumbai Passport Office. iv) Passport in the name of Farheen Mohd. Hanif Sayyed (daughter of A-1 & A-3) bearing No. A-3525401, dated 6.8.97 issued by Mumbai Passport

18

conf.5.09

Office. v) Passport in the name of Irfan Hanif Mohd. Sayyed (son of A-1 and A-3) bearing No. A-3527645, dated 8.8.97 issued by Mumbai Passport Office. vi) Photo identity card of a person resident of Philton, Dubai, Jumeria.vii) Visiting card of Arun Vaswani mentioning the phone numbers of Chetan, Ashwin, Masjid, Ashrat Shafiq Ansari, Shiraj Electricals on the overleaf of the card. viii) Visiting card of Aziz in the name of Mumbai Motors and the name of Nasir and his Mobile No. 9892451164 mentioned on its overleaf. ix) Visiting card of Noor Electrical owned by S.M. Hanif and the name of Nasir with his Mobile No. 9892077831 mentioned overleaf. x) Wallet containing cash of Rs.127 and driver badge of Cab bearing No. 62652.

23.

A2 thereafter pointed a water tank adjacent to North-East

wall of the home of A1 and one gunny bag containing some material kept near the water tank. On opening the said gunny bag, it was found containing i) 125 aluminum clips kept in one cloth bag of Khaki colour. ii) soldering machine along with plug and wire. iii) 9 alarm clocks in various sizes of Fengseng Co. iv) one clipper of Super Eagle Co. (12 m.m.) v) One polyester Filament Yarn role of white colour. vi) One solder wire role. vii) One Polyester Yarn fitting machine (Super eagle make.). Viii) 16 crackers of red colour.

19

conf.5.09

24.

One cardboard box was also found kept on the mezzanine

floor. On opening the same, it was found containing 117 gelatine sticks with Nobel Gel-80 necl Hingani Vardha mentioned on each stick. So also one corrugated box wrapped in cloth was found kept on the water tank and on opening was found containing 12

electronic detonators. All said articles were seized by Police in presence of panchas vide panchnama (Exh. P-394-A) which was

concluded at about 2.35 hrs. on 1.9.2002. A1, his wife A3 and their daughter Farheen were arrested in connection with BEST Bus Bomb Explosion Case of Ghatkopar registered vide C.R. No.75 of 2003 under custody memo. The arrested accused persons along with the seized articles were taken to the office of DCB CID, Unit XI at Kandivali.

25.

After taking some rest after reaching Office of Unit No.XI,

A1 led Police Officers to the place where the gelatin sticks were hidden by him. He had taken police officers and panchas towards Chimat Pada, in a lane near Maheshwari Hotel and pointed out Room No. 14 in Salim Chawl which was found locked. A1 Hanif opened the lock with the key in his possession and entered the room. He was followed by police officers and panchas. A1 took out yellow coloured gunny bag which was kept below the cot and 58 gelatin sticks were

20

conf.5.09

found in the bag and the said sticks came to be seized vide panchnama (Exh.P-395A)

26.

After arrest of A 1 to 3 they were produced before Special

Court on 1-9-2003. At that time A 1 made complaint of ill-health and he was thereafter taken to Bhabha Hospital at Bandra for medical treatment and after getting discharged from the hospital he was produced before the Special Court on 2-9-2003. He was later on remanded to Police custody till 15-9-2003. On 1-9-2003 A2 and A3 were already remanded to the police custody by special court. Since it was revealed from the school record of Accused Farheen (daughter of A-1 and A-3) that she was minor at the time of commission of offence, she was produced before the Juvenile Court at Dongri, Mumbai.

27.

Accused No.2, during his interrogation by ACP Shri

Walishetty (PW-103) Investigating into the offence of Ghatkopar BEST bus bomb blast, disclosed that he himself, A1, wife of A1 i.e. A3 and their daughter Farheen were involved in the offence of bomb blasts. A2 on 4-9-2003 expressed his willingness to give confession. The same was apprised by IO Shri Walishetty to Joint C. P. (Crime) who directed DCP Shri Vinod Lokhande (PW-88) of Zone-X to record the confession of Accused No. 2 Ashrat.

21

conf.5.09

28.

On 11-9-2003, PW-103 produced A2 before PW-88 DCP

Zone-X. He complied with the formalities of recording confession amongst other explaining A2 that he was not bound to make confession and if A2 makes the same it could be used against him. A2 was given 24 hours time for reconsideration of his decision to make the confession and in the meantime A2 was lodged in the lock-up of Bandra-Kurla Complex Police Station. A2 was produced on the next day i. e. on 12-9-2003 before PW-88 and he was again apprised by PW-88 that he was not bound to make the confession and if he makes the confession, the same would be used as evidence against him. Upon such appraisal, A2 stated that the time given to him for reconsideration was sufficient and he reiterated his desire to make the confession. Confession of A2 was thereafter recorded by PW 88 Exh.501A. A 2 was then produced before Chief Metropolitan Magistrate on the same day i. e. on 12-9-2003 and his separate statement confirming that his confession was recorded by C. M. M. A 2 in the said confession gave all necessary details pertaining to the role played by him and his associates in the bomb blasts at Ghatkopar, Mumbadevi and Gateway of India.

29.

Prior to occurrence of bomb explosion near Mumbadevi

Temple at about 12.40 hours A2 had communicated to deceased

22

conf.5.09

Accused Nasir on his Mobile 9892451164 through STD booth of PW-28 Dilip Yagnik on telephone No. 65389009 that he had kept the goods in the taxi near Mumbadevi Temple and work will be done. Exh. P-284 is the print out of the above call.

30.

Accused Nasir had purchased SIM card of Airtel bearing No.

9892451164 from a shop i. e. Raj Electronics at Marol. Delivery challan as well as enrollment form to such effect i.e. Exh. P-276 and Exh. P-278 respectively were collected by IO. Accused Nasir had also purchased another SIM card of Airtel bearing No. 9892077831 from Karishma Electronics at Marol. Exh. P-275 is challan of the said purchase. PW-5 Ashok is the proprietor of Karishma Electronics and

PW-4 Anil is the owner of the Raj Electronics. Their statements were recorded by IO.

ENCOUNTER INCIDENT 12th September, 2003

31.

Police Officers in search of wanted accused Nasir received

the information that the said accused along with his associates was likely to come near Ruparel College in a Maruti-800 car with Arms, Ammunitions, and Explosives on 12th March 2003. PSI Sachin

Kadam (PW-1), API Ahir, PSI Sabnis along with other staff went to

23

conf.5.09

the said place at Matunga (West) on the said day and laid a trap. As accused Nasir driving a Blue coloured Maruti-800 came at the said spot, the Police Officers asked him to stop the same. However, he paid no heed to the same and persons in the car started firing from the revolvers towards the Police. PW-1 Sachin Kadam was compelled to open firing in retaliation upon Nasir and his associates due to which Nasir and his associates Hasan Habib sustained injuries. Both of them were taken to KEM Hospital in mobile van but they were declared brought dead by the doctors. 92 Gelatin Sticks, 8 Detonators, 2 Alarm Clocks and wire cutter were found in the said Maruti-800 car bearing No.BLM-6184.

32.

LAC Case No.487 of 2003 for the said contraband material

found in the said van and seized and a separate Crime No.225 of 2003 regarding said encounter incident was registered at Shivaji Park Police Station. The said Maruti car along with explosives therein was seized by the said Police Station at the time of preparing inquest panchanama Exhibit-P-254. Two revolvers, mobile phone, two SIM cards, two credit cards, two driving licences, election cards and some chits were found on the dead body of Nasir and the same were seized.

24

conf.5.09

Recording of Confessions of A1 & A3

33.

A1 and his wife A3 while in Police custody on 16th

September 2003 expressed willingness to give the confession. Joint Commissioner of Police (Crime) directed DCP Shri Lokhande (PW-88) to record confession of A1 and DCP Ms. Archana Tyagi (PW-90) was directed to record confession of A3.

34.

On 22nd September 2003, PW-88

complied with the

formalities for recording confession of A1 and on the same day recorded first part of his confession (Exhibit-P-501). Similarly, after following necessary procedure on 24th September 2003, PW 88 recorded the confession of said accused. Thereafter, on 25th

September 2003, A1 was produced before the Chief Metropolitan Magistrate and his statement (Exhibit-P-623) was recorded by the Chief Metropolitan Magistrate. Thereafter, confession of A1 was forwarded to POTA Court on 26th September 2003 vide covering letter Exhibit-506-B.

35.

On 22nd September 2003,

PW-90 complied with the

formalities for recording confession of A3. She recorded first part of her (A3) confession (Exhibit-P-522). PW-90 again took further

25

conf.5.09

proceedings on 24th September 2003 for recording confession of A3 produced before her and recorded second part of her confession (Exhibit-522-A). A3 was thereafter produced before CMM on 25th September 2003 and her statement regarding the confession was recorded by the CMM and along with the same her confession was forwarded to the POTA Court.

36.

During the investigation, it was noticed that the arrested

accused persons and their associates were involved in the commission of the above four offences. Considering the magnitude of the offences and nature of the criminal conspiracy hatched Joint Commissioner of Police (Crime) Shri Satyapal Singh appointed ACP Shri Suresh S. Walishetty (PW-103) as Chief Investigating Officer to do the investigation in connection with all the four offences of bomb blasts and the officers of the concerned Police Stations were directed to assist Shri Walishetty in the investigation. A1 to A3 were lodged in Mumbai Central Prison.

37.

SEO Shri Waman Sapre (PW-52) on 1st October 2003 at

Mumbai Central Prison conducted the test identification parade of A1 to A3. PW-6 Anil Mulchand Vishwakarma, a carpenter by profession was witness in resepct of Ghatkopar incident. He identified A2 and

26

conf.5.09

A3 being the persons with whom he had quarrel while getting down from the BEST bus route no.340 at Marole Pipeline Stop while he was returning to Ghatkopar from Andheri. Exhibit-P-389 is the

memorandum of the said parade prepared by SEO PW-52. 38. PW-52 held another identification parade at Mumbai

Central Prison on 11th October 2003 for A1 and A2 in connection with Ghatkopar incident. Mr.Dilip Wankhede (Conductor of the bus) (PW-54) identified A2 at the said parade as being the person who had boarded the BEST bus route no.340 at Andheri bus stop along with one Burkha Clad Lady with her face uncovered to whom he had issued ticket for Asalpha bus stop and the person who had taken the seat along with the said lady at the rear side of the bus. Further identification parade for A3 on the same day was held at Byculla District Prison (where she was shifted) by the same witness. At the said parade PW-54 identified A3 as being the Burkha Clad woman with face uncovered who had boarded the BEST bus of route no.340 at Andheri stop along with the person who had taken BEST bus ticket for Asalpha stop. Exhibit-P-391 is memorandum prepared of the said parade held at Arthur Road and Byculla Prison. 39. The Special Metropolitan Magistrate Shri Madhukar Bodake

(PW-18) on 6th February 2003 conducted the identification parade

27

conf.5.09

for A1 and A2 at Mumbai Central Prison in connection with CR No. 206 of 2003 of Colaba Police Station (Gate Way of India incident). The witnesses Nafiz Ahamed Khan (PW-19), Shivnarayan Pande

(PW-15) and Ramchandra Shitalprasad Gupta (PW-20) participated in the said parade. On 25th July 2003 A1 had been to the house of A2 and the rickshaw was wrongly parked by A1 in front of the shop of PW-19 and on that count there was a quarrel between A1 and the said PW-19. PW-19, the owner of a garment factory at Juhu Lane,

Samata Nagar, Andheri (W), Mumbai near the residence of A2 and had seen A1 many times coming to the house of A2, identified A2 in the said parade as being the person residing adjacent to his shop since long and was friend of A1.

40.

PW-15 Shivnarayan Vasudev Pandey was the owner of the

taxi bearing No. MH-01-R 2007 and was driving his taxi in Mumbai since the year 1982. Encountered accused Nasir on 24th August 2003 had engaged the said taxi when parked opposite Amber Oscar Cinema Hall at Andheri. He had engaged the said taxi for Rs.600/- for going to the places such as Haji Ali, Hanging Garden, Aquarium, Gateway of India and Rani Baug and the said taxi was brought by PW 15 with the said accused at Azad Galli, Andheri (W0. Thereafter, Nasir A-1, wife Fehmida and their two daughters had travelled in the said taxi from

28

conf.5.09

Azad Galli to Colaba for visiting places and returned and A1, his wife Fehmida and their two daughters travelled in the said taxi of PW-15 Shivnarayan Pandey again on 25-8-2003 from Azad Galli, Andheri (West) to Colaba. A1 had kept one airbag in the dickey of the taxi and asked the taxi driver to take the taxi towards Arthur Bunder Road at Colaba and to park the said taxi in front of Hotel Taj in pay & park site. The same accused had instructed the witness to stay in the taxi till the arrival of A1 and his family members. PW-15 Shivnarayan identified A1 in the above parade saying that he was the same person who put his airbag in the dickey of the taxi and asked him to take the taxi towards Arthur Bunder Road at Colaba and park the same in front of Hotel Taj in pay & park site and should not leave the taxi till his arrival.

41. A1.

PW-20 Ramchandra Shitalprasad Gupta has also identified He claimed to have seen A1 along with his wife and two

daughters travelled in his friends ( Shivnarayan Pandey) taxi. PW 20 however did not identify A2 in the above parade. Exh.-P-323 is the memorandum of the above TIP which was held on 6-10-2003 in Mumbai Central Prison.

29

conf.5.09

42.

The Special Metropolitan Magistrate Madhukar Bodake

(PW-18), on 6th October 2003, held identification parade at Byculla District Prison, regarding A3. The same witness i.e. PW-15

Shivnarayan Pande, identified A3, as the woman travelling along with her husband and two daughters in his taxi on 25th August 2003. He has mentioned about parking of that taxi at Gate Way of India in Pay and Park site in front of Taj Hotel. Ramchandra Gupta (PW-20) and Nafis Khan (PW-19) also identified A3 in the said parade. Exhibit-324 is the memorandum panchanama of said parade.

43.

Special Executive Officer Shri Sudhir Surve (PW-59) on

8.10.2003 in connection with C.R. No.157 of 2002 held identification parade of A1 & A2 at Mumbai Central Prison for witness Manoj Patil (PW-60). PW-60 identified A1 as a person who was in the queue ahead of him for boarding BEST bus Route No. 312 at about 5.30 p.m. on 2-12-2002 at Seepz Bus depot and as the person who had handed over a cloth bag to A2 who had later on occupied a seat on the rear side of the said bus and thereafter A1 having left the stop.

44.

Shri Dilip Masram (PW-62), conductor of the same bus

Route No. 312, also identified A2 as a person who had a quarrel with another passenger at Seepz Bus depot and he pacified the person who

30

conf.5.09

along with a cloth bag had taken the seat on the rear side of the bus. PW-62 however did not identify A1 at the said TI parade. The

memorandum of the said TIP prepared by PW-59 is Exh.P-415.

45.

Special Executive Officer Shri Dushant M. Ozha on

9.10.2003 at Mumbai Central Prison had conducted identification parade of A1 and A2 for five identifying witness. At the said parade, PW-28 Dilip Yagnik working at STD/PCO Booth of Kantilal Jain situated at 5, Vitthal Wadi, Zaveri Bazar, Mumbai- 400 002 identified A2 as a person, who, on 25-8-2003, at about 12.10 hrs., made telephone call from his PCO to one Nasir saying that he had kept the goods in the taxi near Mumbadevi temple and work would be done. Similarly, witness Harish (PW-30), who was present near

Mumbadevi Temple area on 25-8-2003 for hiring taxi for returning to his home at C.P. Tank claimed to have seen taxi No. MH-01 H-2022 halted at Zaveri Bazar. He claims that he tried to board the said taxi but he was told that taxi was not empty and directed him to go ahead and shortly thereafter there was an explosion in the same taxi. PW-30 had identified A2 as being the same person who had shouted at him and asked him to go away. Kunjbihari Ramprasad Pandey (PW-29) and Kutty Manappa Shetty (PW-33) hawkers doing business at Dhanji Street Naka has identified A2 at the said parade as a person who had a

31

conf.5.09

quarrel with one Nasir in the area of Dhanji Street Naka at about 6.00 p.m. on 24-8-2003 and they had a quarrel with one motor-cyclist and the quarrel was separated by the above hawkers. The Memorandum of the said TI parade prepared by PW-41 being Exh. P-192.

ABOUT APPROVER

46.

The charge sheeted Accused No. 4 Jahid Patne soon after the

three bomb blasts had watched news item on television in Dubai. He became restless and was unable to sleep after knowing that several persons lost their lives and many persons were injured in the said blasts. He started repenting for his misdeeds. He then went to local Masjid and apprised Maulana by name Jafar Sahab that he was repenting for his act of having participated in the conspiracy of causing bomb blasts in India. He was told by Maulana that due to his illegal act, the persons including woman and children of both religions (Hindu and Muslim) were killed and it was against the Muslim religion. He thereafter decided to return to India to surrender before police and accordingly returned to India on 1-10-2003. He was appraised by his family members that police from Bandra Crime Branch had been to his house for making inquiries. Hence, he along with his elder brother went to the office of Bandra Crime Branch. Chief IO PW-103 made

32

conf.5.09

inquiry with said accused No.4 Jahid and received credible information that Jahid was one of the conspirators of the offences of bomb blasts. PW-103 arrested him on 2-10-2003 in DCB, CID C.R. No. 75/2003 and produced before the Special Court. He was remanded to police custody till 17-10-2003, 30-10-2003. which was later on extended upto

47.

During the course of interrogation Accused No. 4 Jahid

expressed his willingness on 16-10-2003 to give his confession. On 21-10-2003 he was produced before Shri Dhananjay Kamlakar

(PW-12) DCP of Zone-VII. He took proceeding for recording the confession, Part-I (Exh.P-264). PW-12 took further proceedings on the next day when accused No.4 was produced i.e. on 23-10-2003. After following the due procedure, confession of A4 was recorded Part-II (Exh. P-264A). Accused No.4 on the same day was produced before C.M.M. and his statement was recorded by C.M.M. confirming the contents of his confession. The CMM then forwarded the

confession of accused No.4 to Special Court. Accused No. 4 Jahid was remanded to judicial custody on 30-10-2003. 48. The Officers of DCB, CID, Unit-VII received reliable

information about the involvement of charge sheeted Accused No.5

33

conf.5.09

Batterywala and Accused No. 6 Ladduwala (present A4 & A5 at trial) in the explosion of bomb blasts at Gateway of India and Zaveri Bazaar. Both these accused were arrested in Ghatkopar area by the Police Officers of Unit No. VII on 5-11-2003 and they were produced before the Special Court on the same day. Special Court remanded both the Accused persons to police custody till 19-11-2003 which was further extended till 1-12-2003.

49.

During interrogation on 10-11-2003, A-5 Hasan Batterywala

made a statement showing willingness to show the place where the explosives were kept by him. The Memorandum (Exh.-297) regarding said information was drawn. The said Accused No. 5 led IO and panchas towards his Battery shop at Kolhapur Garage, L.B.S. Road, Kurla (W), Mumbai and from said shop he produced 3 gelatin sticks and RDX powder weighing 750 gms. kept in one cardboard box. The said articles came to be seized in presence of panchas vide panchanama (Exh. P-297A)

50.

On 13-11-2003 Accused No. 6 Ladduwala, informed the IO

that he would show the place where the explosive material was kept by him which was used while exploding bombs in Zaveri Bazar and at Gateway of India. In consequence of above information, 2 detonators

34

conf.5.09

came to be seized by IO from a hut situated at Gulshan Nagar slum area near Shahad Railway Station, Shahad (E), District Thane vide panchanama (Exh. P-291A).

51.

Charge sheeted accused No. 5 Batterywala and accused No.

6 Ladduwala on 14-11-2003 expressed willingness to give their confession and the same was apprised by Chief IO (PW-103) to Joint C.P. (Crime) who in turn respectively directed DCP Shri Amitabh Gupta (PW-89) and DCP Shri Ankush Shinde (PW-91) to record the confession of respective accused persons. Accordingly DCP PW-89 recorded Part-I (Exh. P-516) the confessional statement of charge sheeted Accused No. 5 Batterywala on 25-11-2003 and part-II of the confession (Exh. 516A) on 27-11-2003 by following the due procedure. On the same day, Accused No. 5 Batterywala was produced before the Chief Metropolitan Magistrate. Similarly DCP PW-91 recorded Part-I of the confessional statement (Exh. P-532) of Accused No. 6 Ladduwala on 25-11-2003 and part-II of the confession (Exh. P-532A) was recorded on 27-11-2003. On the same day Accused No. 6 Ladduwala was produced before C.M.M. Both the accused persons narrated the whole story before DCP involving themselves and other co-accused persons in the commission of offence of bomb blasts.

35

conf.5.09

52.

The investigation of all the four offences transpired that A1

belonged to terrorist organization i.e. Lashkar-E-Toyaba. He had committed terrorist activities in Mumbai. He came to India from Dubai and with the help of his wife A3, deceased terrorist Nasir Ahmed Ansari, A2, original A5 and A6 committed terrorist acts in Mumbai city by exploding the bombs. In pursuance of the criminal conspiracy hatched by A1 to A6 and wanted accused persons, i) A2 planted timer bomb in BEST bus bearing No. MH-01H-8765 at Seepz on 2-12-2002 and ii) A2 with the help of A3 planted bomb in BEST bus of Route No. 340 on 28-7-2003. iii) A2 on 25-8-2003 also planted bomb in motor taxi bearing No. MH-02-R-2022 near Mumbadevi and iv) A1 with the assistance of his wife A3 planted bomb in motor taxi bearing No. MH-02-R- 2007 which was exploded at Gateway of India at about 13.10 hrs. on 25-8-2003. As a result of said three bomb explosions 54 persons were killed and 244 persons sustained injuries and property worth Rs. 1,60,00,000 was damaged.

36

conf.5.09

Sanction for prosecution under POTA

53.

After receiving reports of Forensic Science Laboratory and

reports of Joint Controller of Explosives regarding the examination of seized material; and after getting postmortem reports/Provisional

Cause of Death Certificates of the deceased persons and the injury reports of the injured persons; and after receipt of the consent of the Central Government for prosecution of the accused persons under the provisions of the Explosive Substances Act, 1908 and after receipt of the reports from various agencies regarding the assessment/valuation of the damaged property, the Chief Investigating Officer PW-103 submitted proposal to Government of Maharashtra for according sanction to prosecute the accused persons under the provisions of Prevention of Terrorism Act, 2002. After having examined the material placed along with the proposal, the Government of Maharashtra on 04-02-2004 was pleased to accord sanction to prosecute Accused Nos. 1 to 6 under Sections 3, 4, 5(1) and 20 of Prevention of Terrorism Act, 2002.

54.

After receiving sanction under Section 50 of POTA, 2002

for prosecution of charge sheeted accused Nos.1 to 6, Chief IO PW-103 submitted charge sheet on 5th February, 2004 against A1 to

37

conf.5.09

A6 (including PW-2) as stated earlier for commission of offences under Section 120-B, r/w Sections 302, 307, 326, 324 IPC, u/s 3, 4, 5 of Explosive Substances Act, 1908, u/s 5 and 9(B) of India Explosives Act, 1884, u/s 3, 4, 5 and 20 of Prevention of Terrorist Act, 2002, along with absconding accused Shafakat, Abid, Khalid, Maqsud, Jahangir, Bilal, Samiulla and Rehman named in the charge sheet. Upon filing of the said charge sheet, cognizance was taken by the Special Court and above stated POTA Special Case No.1/2004 was registered. As stated earlier, charge sheeted accused No.4 being he was

accorded pardon on the basis of prosecution application,

examined at the trial as PW-2. While charge sheeted accused Nos.5 & v6 were renumbered as A4 & A5.

55.

On 29-6-2004 the charge as described in detail in Exh. P-5

was framed against A1 to A5 for commission of offences under eight different heads i.e. from head Firstly to Eighthly for offences under Section i) 120-B of IPC, r/w 3, 4, 5(1) & 20 of POTA Act so also r/w. Section 302, 307, 427 of IPC and Section 3 of Explosive Substances Act, Section 9(B) of the Explosive Act, 1884 and Section 3 of Damage to Public Property Act. ii) 3(2) of POTA Act, r/w. Section 120-B IPC. iii) 3(3) of POTA Act. iv) 120-B of IPC r/w. S. 302, 307 of IPC and S. 3(2), 3(3) of POTA, 2002 and Section 4 of Damage to

38

conf.5.09

Public Property Act, 1984 r/w. S. 427 of IPC and S. 3 to 6 of Explosive Substances Act, 1908 and S. 9(B) of Explosive Act, 1884. v) 302, 307, 427 r/w. S. 34 further r/w. S. 120-B of IPC, further r/w. S. 3, 4, 5 & 6 of Explosive Substances Act, 1908, and U/s. 3 of Damage to Public Property Act, and S. 3 & 4 of Prevention of Terrorism Act. vi) 302, 307, 427, r/w. S. 120-B of IPC also u/s. 5, 9(b) of Indian Explosive Act r/w. S. 3, 4, 5, 6 of Explosive Substances Act and r/w. S. 3 of Damage to Public Property and U/s. 3 & 4 of POTA, 2002 (against accused Nos.1 to 3 only) vii) 3 of Explosive Substances Act, 1908 (against accused No.3 only) viii) 3 of Explosive Substances Act (against accused No.5 only)

56.

All the accused Nos. 1 to 5 pleaded not guilty to the charge

framed against them and claimed to be tried. The prosecution at the trial adduced oral evidence of 103 witnesses. In addition to the oral testimonies of the said witnesses the prosecution also relied upon the several documents which were proved through the said witnesses or otherwise taken on record due to consent given by the defence in response to application under Section 294 of the Code.

57.

The documents taken on record and marked exhibit are as

mentioned in paragraph nos.53 to 55 of the judgment of Trial Court

39

conf.5.09

under consideration i.e. the documents such as i) Death Certificates, ii) Provisional Death Certificates, iii) Postmortem Notes and iv) Inquest panchanamas of deceased persons as well as v) the Medical Certificates of the injured persons vi) inquest panchnamas. vii)

common panchanamas regarding seizure of blood stained clothes of injured and deceased. viii) map of place of offence of DCB CID Cr

No. 157 of 2002, CR. No. 75 of 2003, CR No. 91 of 2003 and CR No. 86 of 2003. ix) panchanama regarding destroying of RDX.

58.

As aforesaid, prosecution at the trial examined in all 103

witnesses, i.e. witnesses referred herein above and so also 28 more witnesses i. e. PW-23, PW-25, PW-34, PW-36 and PW-64 to PW-87 on the point that their nearest relatives lost lives in the twin bomb blast, dated 25-8-2003. Apart from the above witnesses PW-3 Rajendra Pawar, PW-4 Anil Parmar, PW-5 Ashok Sakpal, PW-6 Manoj Patil and PW-7 Ghanshyam Dubey were examined on the point of purchase of SIM cards of Airtel bearing No. 9892451164 and 9892077831 by Nasir and A1. PW-11 Jyotsna Chandratre was the Special Executive Officer who held TIP of photographs of slain terrorist Nasir at Colaba Police Station on 3-1-2004. PW-13 Pandit Bhandalkar has prepared the sketch of the scene of offences in CR No. 91 of 2003 and in CR No. 206 of 2003. The details of remaining prosecution witnesses being correctly

40

conf.5.09

described in detail in paragraph nos. 56 to 64 of judgment of Trial Court under consideration and the relevant evidence qua submissions advanced before us being dealt in the further part of the judgment the same is not unnecessarily narrated for the sake of brevity.

59. A1

The accused in defence have adduced defence evidence i.e. has examined himself as DW-4 and has also examined 2

witnesses i.e. (DW-5)

Ex-Commissioner of Police, Mumbai, Shri

Ranjitsingh Sharma and (DW-6).Ex-Home Minister of the State Shri Chagan Bhujbal. Similarly A5 has examined himself as DW-1 and has examined DW-2 his son Shaikh Mohd. Ismail. A5 has examined ACP Sadashiv Patil as DW-3 to point out that statement of PW-8 Ajmeri Mohd. Ali Shaikh was recorded by him in connection with bomb blast incident in Mumbai dtd. 11-7-2006. Defence has also relied upon as many as 124 documents/Exhibits.

FINDINGS COURT

OF

THE

TRIAL

60.

After hearing both the parties and assessing the evidence

adduced at the trial, the trial Court came to the conclusion that:

41

conf.5.09

i) A1, PW-2, deceased accused Nasir and other wanted accused had hatched criminal conspiracy partly at Dubai in the month of August 2002 in the house of Nasir at Dubai and after returning to India, A1 and Nasir along with A2 and A3 had held several conspiracy meetings in the house of A1 at Mumbai for chalking out detail plan for doing bomb blasts at crowded places in Mumbai and thus conspiracy of doing terrorist acts in Mumbai was hatched partly in Dubai and partly in Mumbai. ii) sanction of the Central Govt. u/s 188 of Cr. P. C. was not necessary for trial of the accused persons for the offence u/s 120-B of IPC iii) A2 was found in unauthorized possession of hazardous explosive substances in his house at 22.40 hrs. on 31-8-2003. iv) A2 and A3 were found in unauthorized possession of hazardous explosive substances in their house R. No. D-7 Salim Chawl, Chimatpada on 1-9-2003 at hrs. v) on 1-9-2003 at 7.50 hrs. A1 was found in unauthorised possession of hazardous explosive substances in a room occupied by him bearing R. No. 14 Salim Chawl, Chimatpada.

42

conf.5.09

vi) A1 to A-3 and deceased Nasir in pursuance of the above criminal conspiracy had planted timer bomb below the rear seat in BEST Bus of route No. 312 (336) bearing No. MH-01 H-8765 near Seepz BEST Bus Depot, MIDC, Andheri (E), in the evening of 2-12-2002 with intent to kill maximum number of persons travelling in the above bus and to cause loss to the public and private properties. vii) A1 to A3 and deceased Nasir in pursuance of the above criminal conspiracy had planted a timer bomb in a BEST bus of route No. 340 bearing No. MH-01 H 8246 which was exploded at about 21.10 hrs. on 28-7-2003 at Karani Lane Junction, Ghatkopar (W), Mumbai causing the death of two persons and injury to 60 passengers and also causing damage to public and private property worth Rs. 16.30 lacs. viii) A1 to A3 and deceased Nasir in pursuance of the above criminal conspiracy, planted timer bomb in a motor taxi bearing No. MH-02-R-2022 which was kept waiting at the junction of Dhanji Street, Yusuf Ali Road, in front of Sagar Juice Centre, Near Mumbadevi Temple, Mumbai on 25-8-2003 at noon time and the powerful bomb kept in the above taxi was exploded at 12.40 hrs. causing the death of 36 persons and injury to 138 persons and also caused damage to public and private properties worth Rs. 95 lacs.

43

conf.5.09

ix) A1 to A3 and deceased Nasir in pursuance of above criminal conspiracy, kept timer bomb in airbag and airbag was kept in the dickey of motor taxi bearing No. MH-02-R-2007 which was parked in Pay & Park site opposite Hotel Taj at Gateway of India, P. J. Ramchandani Marg, Colaba, Mumbai-400 005 on 25-8-2003 and the said bomb was exploded at 13.05 hours killing 16 persons and causing injuries to 46 persons and causing huge damage to public and private properties. x) That valid sanction Exh. P-573 was accorded by Government of Maharashtra u/s 50 of POTA 2002 to prosecute the Accused persons.

The trial Court in consonance with the said findings held that accused A1 to A3 have committed the offences as described in commencing paragraph of the judgment and sentenced them accordingly. Brief Submissions of Both Sides

61.

The learned APP by and large supported the judgment under

consideration and particularly finding of guilt of A1 to A3 for commission of the offences as arrived by the trial Court and sentence

44

conf.5.09

of death and the other sentences awarded by the trial Court. The crux of her submission, is that, barring not accepting the evidence of certain witnesses and sanction as pointed out by her discussed at appropriate stage, the trial Court has properly appreciated and accepted the evidence of the prosecution witness. She further urged that considering the nature of offences committed and the purpose behind committing them i.e. the conspiracy hatched to commit terrorist act and commission of terrorist act as established by the prosecution evidence no fault can be found even with the sentence awarded. She submits that sentence of death awarded by trial Court deserves to be confirmed and no interference is warranted regarding the other sentence awarded to A1 to A3. She also urged that in the event of agreement with her submission of the evidence of particular witness was wrongly discarded by the trial Court, then, the concerned accused whose involvement/guilt for commission of offences in relevant incident is established, will be also required to be held guilty for such offences. The learned APP made elaborate submissions by taking us meticulously through the record of the case for supporting her said submissions. For the sake of brevity, the relevant submissions

meriting consideration and/or discussion are narrated and considered at appropriate stage while considering the relevant evidence and/or relevant aspect.

45

conf.5.09

62.

Learned APP also made elaborate submission for allowing

the writ petition preferred by the prosecution for quashing and setting aside the opinion/direction given by Central Review Committee and remanding the matter back to the said committee. She also made elaborate submission for allowing appeal preferred by the prosecution against the order dated 18th November, 2008 passed by POTA Special Court, holding that the prosecution against A4 and A5 is deemed to have been withdrawn from the day the directions were given by Central Review Committee and consequently releasing them. She

urged for quashing and setting aside the said order and sending the matter back to the trial court for deciding the same in accordance with the law. We shall elaborate this submission a little later.

63.

Mr. Pasbola learned counsel for A3 opened the defence

arguments. At the outset, he submitted that none of the accused have disputed the factum of bomb explosions and/or people having died or being injured and of severe damage caused to property in and around the place of blast. But he urged that the prosecution has failed to establish that the explosions were caused by using a particular

chemical as claimed by the prosecution i.e. attempt to commit the blast in BEST Buses at MIDC Seepz and blast committed at Ghatkopar by

46

conf.5.09

using bombs containing gelatin sticks and for remaining two incidents of bomb blasts by using RDX i.e. at Zaveri Bazar and Gateway of India.

64.

He further urged that though it is the prosecution case that

conspiracy was hatched in Dubai, the probable period during which the same was hatched has not been specified in the charges framed at the trial. Further, the said conspiracy ought to be before December, 2002. Even the evidence about the same is too sketchy and

unbelievable i.e. in the shape of evidence of the PW-2 approver and the evidence of PW-1 and the evidence of confession of accused and that too confession of the co-accused. He submits that the prosecution cannot rely on the alleged confession of approver as he was not tried as co-accused.

65.

He further urged that the incident of attempt to cause

explosion was committed on 2nd December, 2002 while the incident of explosion had occurred on 28th July, 2003 while the remaining two incidents of explosion had occurred on 25th of August, 2003. By pointing out the provision of Section 219 of the Code, he urged that as per the said provision, three offences of the same kind committed within a period of one year can be tried together at one trial. The trial

47

conf.5.09

conducted for clubbing four incidents together, is illegal. He urged that such trial was and in fact caused prejudice to A3. against A3 is vitiated. Hence, the trial

66.

He further urged that the charge framed at the trial is

blissfully vague. It is urged that the charge for every distinct offence as required under the law is not framed against A3. The same has caused prejudice to A3. Hence, it has also occasioned failure of justice.

67.

He further urged that encountered accused Nasir has not

been named as a co-conspirator in the charge as framed though principal participant. According to the learned Counsel, the evidence regarding the death of Nasir is unbelievable. Amongst other, the SIM card recovered near the body of Nasir is not referred to in the chargesheet. The evidence regarding purchase of SIM card by Nasir as well his encounter will have to be discarded. Besides, the said fact has not been established by the prosecution relying only on evidence of PW-1 which is insufficient as the same is not substantiated, corroborated by any other evidence.

68.

He further urged that the prosecution evidence does not

clearly disclose as to when and how provisions of POTA was applied

48

conf.5.09

to this case. For, when A2, 1 and 3 were arrested in connection with Ghatkopar incident, POTA was applied. Presumably, it was applied later on. That was to circumvent the non-compliance of Section 51 r/w 32(5) of POTA. On this basis, it is argued that the alleged confessions will have to be excluded from consideration being statements of accused recorded while in police custody before application of POTA provisions. He submits that there is serious dispute regarding the date of arrest of the accused i.e. A1 to 3. According to the prosecution, it is 31st August, 2003, whereas, the defence August, 2003. claims the arrest on 30th

69.

He further submits that the defence was denied opportunity

to rebut the prosecution evidence. In that, though police officer (Gulabrao Pole) who had allegedly recorded confession of Accused in another case was present in Court he was not allowed to be examined by the defence. That police officer had owned up the responsibility of planting of bomb in the other case.

70.

He further submits that the prosecution evidence itself

discloses that after recording of alleged confession and production before the Chief Metropolitan Magistrate, the accused was sent back to police custody. That was opposed to Section 32(5) of POTA. Further,

49

conf.5.09

the accused had partially retracted confession before the Chief Metropolitan Magistrate, but later on completely retracted the same. For all these reasons, the alleged confessions will have to be discarded, inter alia, being opposed to provisions of POTA.

71.

He further submits that the incriminating portion in the

alleged confessions were not put to the Accused to enable the Accused to offer explanation. Even for that reason, the same cannot be looked into.

72.

He further urged that in the present case all the C.A. Reports,

without examining any of the Chemical Analyser were admitted in evidence under Section 293 of Cr.P.C. The provisions of Section 293 only makes the reports contemplated under the same as admissible and does not dispense with the proof of the same. The material stated in the CA reports and sought to be used against A3 was not at all put to her during her examination effected under Section 313 of Cr.P.C. He further urged that as such, user of the same without giving her an opportunity to explain the incriminating material from the same used against her has resulted in causing grave prejudice to her. 73. He further urged that it was incumbent to examine the

50

conf.5.09

Sanctioning Authority who applied his mind before according the sanction for prosecution for the offences under POTA. It was urged that keeping in mind the dictum in the case of State (NCT of Delhi) vrs. Navjot Sandhu alias Afsan Guru, 2005 SCC (Cri) 1715 i.e. the defence ought to have been permitted to examine the file pertaining to grant of sanction, which document being contemporaneous record alone can resolve the issue of non-application of mind. He urged that in present case such an inspection of the file pertaining to according of sanction as well as request to examine the Sanctioning Authority was denied to the defence. Thus, fair opportunity was not given to the Accused to defend at the trial and the same has occasioned failure of justice. 74. He then urged that sanction Exhibit 568 (relating to Seepz

and Ghatkopar) should be discarded as it makes no reference to the provision in respect of which the sanction is accorded. 75. He faintly urged that the entire trial is vitiated as the Special

Judge came to be appointed after the Repeal Act came into force. 76. He also urged that there has been serious miscarriage of

justice and grave prejudice to the Accused because of unfair trial. In that, the prosecutor was allowed to ask leading questions to the tutored planted prosecution witnesses, inspite of repeated objections taken by

51

conf.5.09

the defence. Not only that the Trial Judge adopted an unusual procedure of recording of entire examination in chief in questionanswer format. It is submitted that the objections taken by the defence were not immediately answered. Inspite of ruling that the same will be answered at the time of final judgment, no ruling has been given thereon. It is submitted that this anamoly has crept in the proceedings as the major evidence was recorded before two different Judges. The trial Judge who pronounced the Judgment took over the case at the stage of recording of Section 313 statement. 77. He urged that articles allegedly recovered from the house of

accused Nos.1 & 3 and the another owned by accused No1 are gelatin sticks. It is the prosecution case that two blasts (at Gateway of India and at Zaveri Bazar) were caused by means of RDX, while gelatin was used in other two incidents. It is also case of prosecution case

that the encountered accused Nasir had procured RDX and supplied the same. However, no investigation has been done regarding the manner in which the gelatin sticks have been procured by the Accused - which were admittedly easily available in the market and bearing the mark of manufacturer Vardha. It was urged that no investigation in this regard creates a reasonable doubt that the gelatin allegedly

recovered from the house of Accused was a planted article. This has

52

conf.5.09

caused serious prejudice to the Accused.

78.

He urged that PW 103 the Chief Investigating Officer has

given the evidence on the basis of written prepared notes and not by refreshing his memory by perusing case diary/crime report. This has caused serious prejudice to the Accused. His entire evidence is liable to be discarded as the same indicates that he himself has not carried out any investigation. It was urged that as per the provisions of POTA all the investigations are required to be carried out by Investigating Officer of a particular rank. The evidence collected by the Officers not authorized to investigate the offences under POTA, will be required to be discarded as the same is in violation of the provisions of law. It was urged that in the present case, the investigation was only supervised by Chief Investigation Officer of the rank of ACP. That will not cure the defect and it goes to the root of the matter.

79.

It was urged that the various other deficiencies to be pointed

during the course of argument will also indicate that the defence was not given proper opportunity and the trial was unfair. It was urged that the same would be most relevant while considering the order of acquittal / release passed in favour of co-accused A4 and A5. It was urged that certain documents were called for. The same were not

53

conf.5.09

furnished to the defence. That has resulted in denial of fair opportunity to the defence as also warranting drawing of adverse inference against the prosecution. In the result, the benefit of doubt should be given to the Accused and they should be acquitted.

80.

Learned counsel thereafter made exhaustive submissions

with regard to four incidents in question i.e. regarding the witnesses examined by the prosecution and so also regarding the encounter incident and so also the aspects pertaining to the evidence of PW2 Approver, making himself as an approver by the prosecution, grant of pardon, non recording of his statement, appointment of the Special Judge after POTA was repealed, sanctions accorded for prosecution of offences under Explosive Act and/or under Explosive Substances Act etc. for submitting that the evidence adduced has not established guilt of A3 and/or some of the evidence deserves to be excluded from consideration.

81.

Learned counsel thus urged that the guilt of A3 is based upon

very slender and unreliable evidence in the shape of her confession, uncorroborated evidence of PW2, confession of the co-accused and unacceptable evidence of her identification made by the witnesses who are either planted by the prosecution and/or in the nature of chance

54

conf.5.09

witnesses. It was urged that curiously enough all the witnesses who claim to have identified A3 or the other co-accused, have done so because of the quarrel, bickering ensued between the Accused and the concerned witness. It was urged that even assuming that A3 or any of the other Accused was entrusted to plant a bomb then it is difficult to perceive that such a person will involve himself / herself in a quarrel in the manner alleged. It was urged that this theory propounded by the prosecution is against the grain of probability. That itself is a

circumstance justifying the submission that the said witnesses are unnatural witnesses and have been planted by the prosecution.

82.

Learned counsel urged that A3 is entitled to be acquitted

from all charges levelled against her or at least considering the feeble nature of evidence of her identification, she deserves to be given benefit of doubt.

83.

Mr. Khan Abdul Wahab, learned counsel for A1, at the

outset, submitted that he is adopting all submissions advanced by learned counsel for A3 Mr. Pasbola as the same would be applicable even in the case of A1.

84.

He, however, urged with regard to the incident of alleged

55

conf.5.09

encounter on 12th September, 2003, in which death of two persons (absconding accused Nasir and one more) is said to have occurred, the prosecution has utterly failed to establish that the dead body of the person was of none other than the co-conspirator Nasir. The prosecution has rested the matter mainly upon the sole evidence of PW 1 who had lodged the said complaint. 85. It was further urged in the same context that photograph of

the said dead person who is said to be Nasir has not been shown to any of the witnesses in the present case to establish that the said dead person was accompanying A1 as claimed by them. It was urged that merely showing some cards of Bank containing photograph of Nasir would not be sufficient to establish that the person killed in the encounter was Nasir. 86. It was further urged that the said incident having occurred

within the area of Dadar Police Station and as separate case was registered for the same, it was necessary for the prosecution to

produce papers of the said case and/or examine the concerned witnesses to establish that the incident as claimed by the prosecution had in fact occurred. It was urged that the prosecution has not adduced any evidence beyond the evidence of PW1 and producing the inquest panchanama in the said case. Even that Panchnama has not been

56

conf.5.09

proved by adducing any independent evidence of panch witnesses.

87.

It was further urged that even assuming that two sim-cards

as claimed by the prosecution were allegedly seized from the mobiles on the person of the said deceased, still no number engrossed upon the said sim cards has surfaced in the evidence for linking the said sim cards which is said to have allegedly purchased by Nasir from mobile shop. It was urged that merely sim cards purchased from the shop having a particular number would not be sufficient to come to the conclusion that the same were sim cards which were found on the person of deceased for establishing the link between A1 and said Nasir.

88.

It was urged that the evidence of PW1 in paragraph 9 reveals

connection of the material allegedly found from the encountered person, bearing the names of certain persons. It was urged that none of the said persons have been examined to establish the link of the said material with the said persons or for establishing identity of Nasir as being the same person who was encountered. In the same context it

was urged that the said material reveals different names on driving licence or the name of the owner of vehicle as Umesh Suresh Nadkarni with address as 7.2 Old Hanuman Building, Second floor, Chuna Lane,

57

conf.5.09

Bombay-7 and the same being transferred to Mrs. Ayesha Shah Sayyad Hanif with Ghatkopar address. It was urged that the same is the case regarding election identity card which stands in the name of Abdul Sayyad Rahman Ali with photograph of deceased (allegedly Nasir) with address of Hyderabad. It was urged that all the defects have been clearly brought out in the cross examination recorded on page no.1136.

89.

It was further urged that panchanama regarding gelatin stick

being found in the house of said encountered accused has not been produced / proved in the present case for establishing the link of the said person encountered. 90. It was urged that the evidence of PW11 Special Executive

Officer reveals that photograph of Nasir i.e. taken from the person of deceased was used for holding photo test identification parade. It was urged that the evidence pertaining to the said parade reveals that stock police panch Narayan Shetty was used as a panch witness for the said parade. It was urged that for establishing the said fact, application was made on behalf of the defence, the same was rejected by the Court. That has prejudiced A1 and co-accused in establishing most relevant facet of their defence that the prosecution has used stock police panch. 91. In the same context it was urged that the parade panchanama

58

conf.5.09

was prepared on a typewriter i.e. the typewriter which was used earlier by SEO for typing several documents for the same police station for which he had conducted the said parade. It was urged that even the photograph of dummies used for the said parade has not been produced. The entire evidence regarding the said parade is doubtful and so also the alleged identification of the said Nasir allegedly made by the witnesses is highly doubtful deserving no credence. 92. Learned counsel also made exhaustive submissions

regarding the arrest of A1 and so also the arrest of A2 and about the sealing aspect and the evidence of PW103 in relation to making PW2 approver, confession etc., identification of A1.

93.

In nutshell, it is the submission of learned counsel for A1

that the trial was not fair to the said accused, the evidence relied for drawing the conclusion of his guilt is unreliable and unworthy of credence or against the grain of probability. Rather he has been made a scapegoat and his guilt is not established by prosecution evidence and he deserves to be acquitted or at least deserves to be given benefit of doubt.

94.

Though

learned

counsel

for

A2

submitted

written

59

conf.5.09

submissions, he was asked to

make oral submissions at least to

highlight important points. He chose to make limited submissions pertaining to the incident or the circumstances showing involvement of the A2 for which he is convicted. The same are dealt with at

appropriate place while discussing the prosecution evidence pertaining to the relevant topics in light of the rival submissions about the same. Now with regard to the remaining submissions, he has also made the similar grievance like counsel for A1 and A3 of having not received a fair trial by pointing out certain defects regarding the charge framed and / or the manner in which the trial was conducted i.e. by allowing putting leading questions and / or objection raised during the course of trial being not decided properly. It will not be out of place to mention that during the oral arguments on behalf of A2, learned counsel did not point out as to which objection raised at the instance of A2 during the trial requires consideration.

95.

It was urged that charge framed against A2 at head fifthly for

explosion occurred at Zaveri Bazar and for explosion occurred at head sixthly Gateway of India were vague to give a fair idea of the prosecution case against A2. It is urged that charge at head fifthly reveals that except the bald allegation of A2 along with A1 and A3 having proceeded on the relevant day towards the junction of Dhanji

60

conf.5.09

street and further bald allegation of all of them having planted a bomb using high explosive and detonators in motor taxi, the same is vague. No details of the overt act committed by A2 is disclosed. It was urged that even the case/charge regarding the Gateway incident is no different.

96.

Learned counsel also made similar submissions as that of

counsel for A1 regarding the concerned witness about the identity of A2 with regard to the incident in question. All the prosecution witness who have identified A2 because of occurrence of some quarrel

bickering etc. It was urged that this theory is highly improbable and the same also supports defence contention of the said witnesses being planted by the prosecution.

97.

The learned Counsel urged similar submissions as canvassed

by earlier counsel for A3 and A1 regarding clubbing of offences allegedly committed in four incidents at one trial for contending that the same being in contravention of the provisions of law. It was urged that there being a huge gap between first incident occurred on 2nd December, 2002 and second incident in the month of July 2003 and remaining in the month of August 2003 also indicates that A2 has been falsely involved in the first incident and so also the other incident. It

61

conf.5.09

was also urged that the said time gap also denotes that the incidents in question cannot be said to have transaction. occurred in the course of one

98.

The learned counsel also made submissions incident-wise

regarding involvement of A2, about his alleged confession, his alleged arrest on 31st of August, non compliance of the mandatory provisions under POTA while recording the confession, evidence of approver, making himself approver about recovery evidence etc. The same will be dealt with while considering rival submissions regarding the relevant topic at appropriate stage for the sake of brevity.

99.

As a net result of all the submissions, learned counsel

contended that guilt of A2 is not established by the evidence adduced by the prosecution. It is thus contended that A2 also deserves to be acquitted. We may place on record that at the end of hearing, the Counsel for the respective parties (in particular for the State and A 1 to 3), addressed us on the quantum of sentence on the supposition that the finding of guilt recorded against the concerned Accused were to be upheld. That contention will be adverted to and dealt with at the appropriate stage.

62

conf.5.09

100.

We have given thoughtful consideration to the submissions

advanced by the rival parties and carefully perused entire record with their assistance in order to ascertain merits from the same. However, in order to ensure brevity and to avoid repeated discussions of the same evidence we propose to make the discussions topic-wise hereinafter i.e. firstly regarding Writ Petition No. 2539/2008 and Criminal Appeal No.4 of 2009 pertaining to discharge of A4 and A5 and thereafter matters related with unfair trial and, thereafter, incident-wise and, thereafter, matters pertaining to the question of sentence awarded. Re: Writ Petition No.2539/2008 & Cri.Appeal 4/2009 101. Ms. Kantharia, learned APP while adverting to events

unfolded after 10th May, 2005 in said POTA case, as described in commencing part of judgment and the one which had ultimately led to passing of order dated 17th November, 2008 by POTA Special Court, Mumbai, urged that the same has forced the prosecution to institute aforesaid proceedings. By this writ petition, the prosecution has prayed for issuing writ or directions in the nature of certiorari and/or such other appropriate writ, order or direction of similar nature quashing and setting aside the direction given by said POTA Review Committee. Notably, while admitting this writ petition on 11th

August,.2009, the prayer for interim relief of stay of implementation

63

conf.5.09

of directions issued by the POTA Court was rejected. As a result, the said POTA Special Case proceeded with trial only against A1 to A3.

102.

By aforesaid criminal appeal, the prosecution amongst other

has sought leave to prefer an appeal against the order dated 17th November, 2008 passed by the Special POTA Court for Mumbai in Special POTA Case No.1 of 2004 under Section 378(3) of Code read with Rule 19 of Chapter XXVI of the Appellate Side Rules and for quashing and setting aside the said order and directing said POTA Court to decide the entire case on merits as against A4 and A5.

103.

Learned A.P.P. urged that consequent to the report of the

Review Committee - for discharging A4 and A5 from the said POTA case the said accused filed MA 42 and 44 of 2005 respectively before the Special Judge, POTA Court Mumbai. These applications,

however, were rejected by the said Court vide order dated 11.8.2005. Resultantly, the prosecution had no occasion to take any steps regarding the direction issued by the Committee. She further urged that after this Court, in the proceeding filed by A4 and A5, gave directions to the prosecution, vide order dated 24th October, 2005, to file an application under Section 321 of the Code, for withdrawal of the prosecution against A4 and A5, the Special Public Prosecutor in

64

conf.5.09

charge of the said case preferred such application Exh.P-343 inter alia stating that he was of the opinion that there is prima facie case under POTA against A4 and A5. She urged that similar stand was taken by him in the reply to the application preferred by A4 and A5 before POTA Court. She urged that by order dated 23.1.2006, the POTA Court, having disposed the said applications, amongst other observing that case for withdrawal under Section 321 of the Code was not made out, - it was unnecessary for the prosecution to carry the matter further on the assumption that the Special Judge intended to proceed against A4 and A5 as well. She urged that thus prosecution had duly

complied the direction given by this Court by preferring application Exh.P-343.

104.

The learned APP urged that however, A 5 had filed SLP

No. 187 of 2006 against the decision of this Court dated 24 th October, 2005 before the Apex Court. That SLP was converted into Criminal Appeal No. 359 of 2006 and heard along with other matters of accused persons involved in fire incident at Godhra, Gujarat. All the said proceeding were disposed of by the Apex Court vide order dated 21st October, 2008 i.e. by the decision in the case of Mahmadhusen Abdulrahim Kalota Shaikh(2) .vs. Union of India and others reported in (2009) 1 Supreme Court Cases (Cri) 620. On the basis of

65

conf.5.09

observations in that decision of the Apex Court, A4 and A5 again preferred application Exh.D-116 before the POTA Court Mumbai for exonerating report/direction Committee. them from charges framed on the basis of the dated 10th of May, 2005 given by Review

105.

The learned APP by relying on the observations made in

paragraph no.51 of the decision in the case of M. A. K. Shaikh (supra) and particularly the portion from the same to the effect but we make it clear that if the opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is set aside, the court where the proceedings were pending, will continue with the case as if there had been no such opinion, urged that the prosecution being aggrieved by the report/opinion/direction given on 10th May, 2005 by Review Committee, is competent to maintain this Writ Petition to question the opinion of the Review Committee. According to the prosecution, if this Petition succeeds, and the opinion of the Review Committee is overturned being perverse and manifestly wrong, at the instance of the State, then, as a corollary, the order passed by the trial Court on the application of A 4 and 5 for discharge will have to be set-aside. It is submitted that the State is otherwise entitled to challenge the opinion of the Review Committee by way of

66

conf.5.09

Writ Petition. For, it is only recommendatory in nature. Even if the same is to be construed as having the trappings of a quasi-judicial decision and having binding effect by virtue of Section 60(7) of the Act, it is amenable to challenge at the instance of an aggrieved party State being obliged to prosecute the offenders of such serious offences when it is demonstrated that the Review Committee has committed jurisdictional error.

106.

The learned APP thereafter by drawing attention to the

provisions of Section 60 (4) of the POTA Act urged that the said provision considered in the light of the other provisions of the said section makes it abundantly clear that review contemplated is

expected to ascertain whether prima facie case for proceeding against the accused for commission of offence under the POTA Act and to issue direction in accordance with the same. She further urged that

the said provision does not empower the Review Committee to pronounce on the continuance of trial against the accused of offences other than POTA offences. She urged that thus the said provision nowhere contemplates giving any direction for withdrawal of the cases in respect of other offences under other enactments. The learned APP vehemently contended that it is not open to the Review Committee to direct withdrawal of prosecution of other offences under other

67

conf.5.09

enactments against the Accused and/or discharging or acquitting him therefrom merely because he was prosecuted additionally for POTA offences.

107.

The learned APP thereafter by drawing attention to the

charges framed in POTA Special Case No.1/2004 urged that A4 was also charged for commission of offence under Section 3 of Explosive Substances Act, for having caused to unauthorisedly store 750 grams of RDX, discovered at his instance on 10.11.2003 from Hassan Similarly

Battery Shop near Kolhapur Garage near Kurla, Mumbai.

A5 was charged for commission of such offence under Section 3 of the Explosive Substances Act on the count of being in possession of two detonators . The learned APP invited our attention to the report given by Review Committee and particularly the relevant part of paragraph No.17 of the same to the effect : 17. There appears substance in the submission of Ld. Counsel representing accused Hassan Batterywala and Rizwan Ladoowala. These two accused have been prosecuted under Section 4(b) POTA. Though the State of Maharashtra was notified area for the purposes of offences under POTA, Section 4 (a) POTA was not attracted against these two accused, as there was no recovery arms or ammunition as per the provision of Section 4(a) POTA. As regards charge U/s 4(b) POTA, recovery of alleged explosives at their instance is shown in the month of November 2003. Learned Special Public Prosecutor did not have any convincing reply to counter the contention of the Defence Counsel as to why

68

conf.5.09

would accused keep such explosive material in their possession for over a period of three months after the bomb blast incidents that last occurred in August 2003. These two accused have not been connected with incidents of terrorism in the four bomb blast cases in any manner except their alleged involvement in the conspiracy hatched in Dubai by the main conspirator Nazir @ Abdul Rehman who was killed in police encounter. But no admissible evidence or material could be pointed out by Special Public Prosecutor to show even prima facie that these two accused were party to any such conspiracy. Report of the expert/ analyst that RDX and detonators allegedly recovered from these two accused were explosive substance was not placed before us. Review Committee, taking a prima facie view of the material on record, does not find these two accused connected with terrorist acts. Accordingly, the Committee finds that there is no basis for their prosecution under POTA. (emphasis supplied)

108.

The learned APP, thereafter, by drawing attention to the 1st

highlighted portion from the aforesaid paragraph urged that the said observation made by the Review Committee clearly reveals that the Review Committee had exceeded its jurisdiction and embarked upon the field of appreciation of the prosecution material.

109.

The learned APP further urged that even accepting that all

the incidents i.e of attempt to cause explosion and/or of causing explosions for which the challan was submitted by the prosecution had occurred prior to 25.8.2003 and even accepting that the Review Committee had come to the conclusion of involvement of A4 and A5

69

conf.5.09

in conspiracy to commit bomb blast hatched in Dubai by main encountered accused Nasir, was not borne from the material, still drawing of such an inference as stated in said emphasized portion aforesaid, was wholly impermissible. It was urged that the material on record, prima facie, reveals involvement of A4 and A5 in commission of the offence under Section 4 (b) of POTA and additionally that of the offence under Explosive Substance Act for which they were charged at the trial. Learned APP thereafter by pointing out observations of the Apex Court in the case of M. A. K. Shaikh (supra) to the effect

89. ................where there is obviously no case against the accused, the Review Committee should withdraw the case. That is, ... where the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused, then the case shall be deemed withdrawn. [See POTA (Repeal), 2004, Sections 2(3) (a) and (b).] Where there is some evidence that suggests that a case against the accused might exist, the Review Committee must allow the proceedings to continue. (emphasis supplied) urged that in light of the same POTA Review Committee could not have formed such prima facie opinion.

110.

The learned APP by drawing attention to the decision of the

Apex Court in the case of Somnath Thapa reported in 1996 (4) SCC 659 and discussion in para No.30 thereof, urged that the broad

70

conf.5.09

contours for determination of a prima facie case against the accused while considering his discharge application are well established. By applying that principle prescribed by the Apex Court, the Review Committee could not have concluded or arrived at prima facie opinion that there was no case for proceeding against A4 and A5 for offences under POTA particularly at least for offence under Section 4(b) of POTA.

111.

The learned APP further urged that the entire material

contained in the charge sheet and the confessions were placed before the Review Committee and the material at page no. 2566 was the C.A. report pertaining to the samples of the contraband articles seized at the behest of A4 and A5. It was urged that the said report reveals that the articles were explosive substance RDX etc. Learned APP

contended that, therefore, the observation made by Review Committee that report of Expert Analysis that RDX and detonators recovered from the said accused were explosive substance was not placed before them, is an error apparent on the face of the record committed by the Committee, which is nothing short of being perverse. The learned

APP thus contended that the fact that charge for offence under Explosive Substance Act has been framed against A4 and A5, is also indicative of existence of the necessary material for the same. The said

71

conf.5.09

vital aspect showing involvement of A4 and A5 in commission of offence under Section 4(b) of POTA being altogether overlooked by Review Committee, the order passed or the directions given by the Committee with regard to the said accused are not legally sustainable and liable to be quashed and set aside.

112.

The learned APP with regard to appeal preferred by the

prosecution urged that only after the order dated 17.11.2008 was passed by the trial Court virtually at the conclusion of the trial, the prosecution was left with no option but to prefer this appeal. She urged that even accepting the deeming effect given to the directions given by the Review Committee constituted under POTA, still the same would have an effect at the most for withdrawal of the prosecution under POTA. It was urged that as pointed out by her, A4 and A5 having been also charged for commission of offence under Explosive Substance Act and so also the offence under other enactment, the POTA Court could not have released the said accused and should have ordered to continue the prosecution for such other offences in accordance with the law. The learned APP urged that the impugned order is blissfully silent regarding the reasons for which POTA Court discharged/released A4 and A5 for the other offences triable under other enactments, other than POTA. It was urged that

72

conf.5.09

impugned order is manifestly illegal as no cogent and tangible reasons are ascribed for discharging/releasing the said accused even for offence under Explosive Substance Act.

113.

It was urged that in view of Section 33 of POTA, it was

incumbent upon the POTA Court to transfer the case to the competent Court empowered to consider whether the case for proceeding against the said accused for commission of such offences exists or otherwise. She urged that instead of passing such an order as warranted by the provisions of law, ordering discharge of the said accused of all the offences, is an order in excess of jurisdiction. Accordingly, it is urged that the Writ petition as well as the Appeal preferred by the State be allowed and the parties (A4 and A5) be relegated before the trial Court from the stage of passing of the impugned orders.

114.

Mr. Sharif Shaikh, learned counsel for the private respondent

in the Writ Petition and Criminal Appeal No.4/2009 countered the aforesaid submission by urging that even after repeal of POTA by Repealing Act No.26/2004 the provisions relating to review of POTA cases were continued though with some modification. It was urged

that considering the power given to the Review Committee constituted under POTA as modified by the said Section 2(3) of the Repealing Act,

73

conf.5.09

the same are in the nature of administrative directions required to be given for discontinuing the prosecution for the offences under POTA erroneously initiated against the concerned accused. It was urged that the real purpose behind retaining such provision was to prevent continuation of misuse of the drastic provisions of POTA even after Repeal Act. It was urged that the same is abundantly clear by deeming effect given to the opinion of (withdrawal of prosecution) Review Committee, if the Committee opines that there is no prima facie case for proceeding for offence under POTA against the concerned accused. It was urged that no application for withdrawal of the case under Section 321 of the Code of Criminal Procedure is contemplated by the provisions of Repealing Act - as ruled by the Apex Court in the case of M. A. K. Shaikh (supra), as the directions of the Committee are binding upon the prosecution.

115.

Learned counsel thus contended that in view of the aforesaid

binding nature of the said directions, it will not be open for the prosecution to assail that opinion arrived by committee. Hence, writ petition as preferred by the prosecution is not maintainable. It was urged that the aggrieved party can be none other than the first

informant and/or the victim or the relatives of the victim and/or the accused or his relative. The State or the prosecuting agency cannot be

74

conf.5.09

said to be aggrieved party entitled to challenge the decision/direction given by the Review Committee.

116.

In support of the said submission, the learned counsel placed

reliance upon the decision delivered by High Court of Delhi in Writ Petition (Criminal) No.1712/2005 decided on 27.5.2009 in the case of State vs. IBOTOMBT SAPAMAND and others, Writ Petition (Criminal) No.754/2006 State vs. Irshad Ahmed Malik and others. It was urged that after considering the ratio of the judgment delivered by the Apex Court in the case of M. A. K. Shaikh (supra) the High Court of Delhi has ruled that the decision of Review Committee after Repeal Act of 2004 was not only binding on the concerned Government and Investigating Officer but also on the Public Prosecutor and on the Court in cases where cognizance had been taken by such court.

117.

The reference was also made to the decision delivered by

High Court of Gujarat on 12.2.2009 in Special Criminal Application No.504/2008 Sardarji Maganji Waghela vs. Union of India. It was argued that the question of locus standi on similar lines was raised therein, the same remained to be considered as the case was decided on merit.

75

conf.5.09

118.

Learned counsel thus urged that Writ Petition preferred by

the State be dismissed, as the State has no locus standi to challenge the directions of the Review Committee. Learned counsel alternatively urged that the direction given by the Review Committee is in the nature of an administrative fiat, the scope of judicial review thereof would be very much narrower. He urged that even examining the

matter from the said angle, hardly any circumstance has been pointed by learned Special Public Prosecutor warranting an interference with the said direction given by review committee after duly considering the record and after hearing both the sides. It was urged that the directions given by the Review Committee amongst other reveals that due opportunity was given to the State/Prosecution to convince the Committee on the basis of the record placed before the committee, of there being a case for continuing prosecution for offences under POTA against the respondents. The State/Prosecution having failed in said process and order passed and/or directions given by the committee are based on cogent reasons, no interference is warranted. That order

can neither be termed as arbitrary or perverse. It was urged that hence there are no merit in the petition preferred and the same is liable to be dismissed.

76

conf.5.09

119.

Learned counsel contended that the decision in the case of

S.K. Shukla and Ors. vs. State of U.P. reported in 2005 (7) Supreme 581 is in regard to the provisions of Act and not with regard to the provisions of Repeal Act. Hence, the same will be of no avail.

Whereas, the decision in the case of of M. A. K. Shaikh (supra) is directly on the point.

120.

Learned counsel further urged that the prosecuting agency

intends to continue the misuse of the provisions of POTA against the applicants, even though they were not connected with the conspiracy hatched in Dubai to commit the bomb blasts in Mumbai. It was urged that the same is clear from the observations made by the Review Committee in the report. It was urged that in spite of the report being received on 10th May, 2005, no prompt steps as warranted were taken thereon by the prosecution. Even Application No.42-44/2005

preferred respectively by A4 and A5 were objected by the prosecution. Furthermore, in spite of the direction given by this Court while disposing appeal and writ petition preferred by the respondents, the same was not promptly complied. Ultimately the respondents A4 and A5 were forced to make an application to the POTA Court calling upon Special Public Prosecutor to state whether any steps were being taken for complying the said directions. It was urged that even

77

conf.5.09

thereafter no proper compliance was made and an application purported to be under Section 321 of the Code of Criminal Procedure but, stating that in the opinion of the learned APP no case of withdrawal of the prosecution exists was submitted.

121.

Learned counsel thereafter supported order passed by POTA

Court by stating that no fault can be found with the same as the relevant provisions contained in Section 2 (3) (a) of the Repeal Act envisages that in event Review Committee is of the opinion that there is no prima facie case for proceeding against the accused, then, the cases in which the cognizance has been taken by the Court, shall be deemed to have been withdrawn. It was urged that the said provision contemplates automatic withdrawal of the prosecution. It was urged

that the said provision, by itself, does not contemplate withdrawal of the prosecution only for offences under POTA. It was urged that offences under POTA being only aggravated form of offences under other enactments committed with specific intention, even the case for commission of offence under other enactment cannot be continued after review committee opines that there is no case for proceeding against the respondent nos.A4 and A5.

78

conf.5.09

122.

It was urged that POTA Review Committee has rightly

pointed out absurdity of the allegations against the applicants of possessing explosive material even three months after the incidents of commission of such blasts in Mumbai. Further, there exists no

material in the charge sheet to prima facie establish the involvement of A 4 and 5 in conspiracy to commit such blasts in Mumbai hatched in Dubai. It was thus urged that no fault can be found with either

direction given by POTA Review Committee or the order passed by the POTA Court on 18th November, 2008, which, was following the pronouncement in the case of M. A. K. Shaikh (supra).

123.

At the outset, we may mention that, before we commenced

hearing of these matters, our attention was invited to order passed by our predecessors to the effect that the Writ Petition will be heard before hearing the Confirmation Case. However, since these matters were notified for hearing together before us, we called upon the counsel appearing for the parties to state as to whether the course suggested in the previous order should be followed, to which, they unanimously agreed that the matters pertaining to accused Nos. 4 and 5 can be proceeded along with the other matters. The counsel fairly accepted that, applying the analogy of separation of trial of absconding accused, the matters pertaining to accused Nos. 4 and 5 could be

79

conf.5.09

conveniently dealt with separately, and the outcome of the matters pertaining to accused Nos. 1 to 3 would not affect their (A4 and A5) proceedings. This is moreso because the prosecution is relying on In the

independent evidence against accused Nos. 4 and 5.

circumstances, we told the counsel appearing for the respective parties that, in the first place, the cases pertaining to accused Nos. 1 to 3 will be fully heard, and thereafter, the cases pertaining to accused Nos. 4 and 5 will be taken up for hearing. Accordingly, after hearing all the matters in the above manner, we proceed to dispose of the same by this common judgment.

124.

Reverting back to issues arising in Writ Petition and Appeal

filed by the State against accused Nos. 4 and 5, we may straightaway advert to Section 60 of POTA as also Section 2 of the Repeal Act. The same read as under:"Section 60. Review Committees---- (1) The Central Government and each State government shall, whenever necessary, constitute one or more Review Committees for the purposes of this Act. (2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed. (3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High Court, who shall be appointed by the Central Government, or as the case may be, the State Government, so however, that the

80

conf.5.09

concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge: Provided that in the case of a Union territory, the appointment of a person who is a Judge of the High Court of a State shall be made as a Chairperson with the concurrence of the Chief Justice of the concerned High Court. [(4) Without prejudice to the other provisions of this Act, any Review Committee constituted under sub-section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding against the accused under this Act and issue directions accordingly. (5) Any direction issued under sub-section (4),----

(i) by the Review Committee constituted by the Central Government shall be binding on the Central Government, the State Government and the police officer investigating the offence; and (ii) by the Review Committee constituted by the State Government shall be binding on the State Government and the police officer investigating the offence. (6) Where the reviews under sub-section (4) relating to the same offence under this Act, have been made by a Review Committee constituted by the Central Government and a Review Committee constituted by the State Government, under sub-section (1), any direction issued by the Review Committee constituted by the Central Government shall prevail.] (7) Where any Review Committee constituted under subsection (1) is of opinion that there is no prima facie case for proceeding against the accused and issues directions under sub-section (4), then, the proceeding pending against the accused shall be deemed to have been withdrawn from the date of such direction."

81

conf.5.09

"Section 2. Repeal of Act 15 of 2002 and saving--- (1) The Prevention of Terrorism Act, 2002 (15 of 2002) ( hereinafter referred to as the principal Act) is hereby repealed. (2) The repeal of the principal Act shall not affect---(a) the previous operation of, or anything duly done or suffered under the principal Act, or (b) any right, privilege or obligation or liability acquired, accrued or incurred under the principal Act, or (c) any penalty, forfeiture or punishment incurred in respect of any offence under the principal Act, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and, any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the principal Act had not been repealed: Provided that notwithstanding anything contained in this sub-section or in any other law for the time being in force, no Court shall take cognizance of an offence under the principal Act after the expiry of the period of one year from the commencement of this Act." (3) Notwithstanding the repeal of section 60 of the principal Act, the Review Committee constituted by the Central Government under sub-section (1) of that section has been made, shall review all cases registered under the principal Act as to whether there is a prima facie case for proceeding against the accused thereunder and such review shall be completed within a period of one year from the commencement of this Act and where the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused, then,

82

conf.5.09

(a) in cases in which cognizance has been taken by the Court, the cases shall be deemed to have been withdrawn; and (b) in cases in which investigations are pending, the investigations shall be closed forthwith, with effect from the date of issuance of the direction by such Review Committee in this regard. (4) The Review Committee constituted by the Central Government under sub-section (1) of section 60 of the principal Act shall, while reviewing cases, have powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908) in respect of the following matters, namely:(a) discovery and production of any documents; (b) requisitioning any public record or copy thereof from any Court or office. (5) The Central Government may constitute more Review Committees, as it may consider necessary, for completing the review within the period specified in subsection (3). 125. There is no difficulty in accepting the submission that Section

60 has been enacted in the light of exposition of the Apex Court in Kartar Singh (supra). We would, first, broadly, analyse the purport of Section 60 of POTA. It envisages that the Central Government and each State Government were obliged to constitute one or more Review Committees for examining cases under this Act. The constitution of such Committee is also specified by this provision in sub-sections (2) and (3). The power to be exercised by the Committee flows from

83

conf.5.09

Section 60(4). This provision is without prejudice to other provisions of the POTA Act. This provision envisages that application can be

made by aggrieved person to the Review Committee constituted under Section 60(1) calling upon the Committee to review whether there is a prima facie case for proceeding against the accused under the POTA Act and issue directions accordingly. The power conferred in the

Review Committee to examine such claim of the aggrieved person and to issue directions as may be warranted is coupled with the duty to do so. Sub-section (5) provides for the binding effect of the direction issued by the Review Committee in exercise of power under Section 60(4) of POTA. The direction issued by the Committee constituted by the Central Government is binding not only on the Central Government but also the State Government and the police officer investigating the offence. On the other hand, direction issued by the Committee

constituted by the State Government shall be binding only on the State Government and the police officer investigating the offence. We may

have to elaborate the purport of binding effect to examine the grievance made before us, which we intend to do a little later.

126.

As regards sub-section (6) of section 60, it postulates that

direction issued by the Review Committee constituted by the Central Government in exercise of power under Section 60(4) shall prevail over

84

conf.5.09

the direction issued by the Review Committee constituted by the State Government. What is material to notice is sub-section (7). The said provision, in no uncertain terms, postulates that, if the Review Committee is of the opinion that there is no prima facie case for proceeding against the accused and issues direction in that behalf under sub-section (4), then, the proceeding pending against the accused shall be deemed to have been withdrawn from the date of such direction. This is a deeming provision. This provision has already been

interpreted by the Apex Court in the case of M.A.K. Shaikh (supra). It has been held that any direction issued by the Review Committee on such review was binding on the Government concerned and the Investigating Officer, but not the Public Prosecutor or the Court under Section 321 of the Code.

127.

Reverting to Section 2 of the Repeal Act, it has a saving

provision. This provision not only repeals the POTA Act of 2002, but also saves certain actions and proceedings referred to in sub-section (2), notwithstanding the repeal of the Principal Act. The proviso to subsection (2) thereof opens with non-obstante clause. It envisages that notwithstanding anything contained in sub-section (2) or in any other law for the time being in force, no Court shall take cognizance of an offence under the Principal Act after the expiry of the period of one

85

conf.5.09

year from the commencement of the Repeal Act. Sub-section (3), once again, opens with non-obstante clause. It envisages that,

notwithstanding the repeal of Section 60 of the principal Act, the Review Committee constituted by the Central Government under subsection (1) of that section, whether or not an application under subsection (4) of that section has been made, shall review all cases registered under the principal Act to ascertain whether a prima facie case for proceeding against the accused in respect of offences under the Act is made out. It further stipulates that the said exercise ought to be

completed within a period of one year from the commencement of the Repeal Act. It further provides that, in cases where the Review

Committee forms opinion that there is no prima facie case for proceeding against the accused, then, in cases where cognizance has already been taken by the Court, the case shall be deemed to have been withdrawn, and, in cases where investigation was pending, the investigation shall be closed, soon after the issuance of direction by the Review Committee in that behalf. The Apex Court has interpreted Section 2(3) of the Repeal Act to the effect that in cases where the Review Committee expresses opinion that there is no prima facie case for proceeding against the accused, the only role of the Public Prosecutor in the matter is to bring to the notice of the Court, the direction of the Review Committee. The Court on satisfying itself as to

86

conf.5.09

whether such an opinion was rendered, will have to record that the case stands withdrawn by virtue of Section 2(3) of the repealing Act. The Court will not examine the correctness or propriety of the opinion nor exercise any supervisory jurisdiction in regard to such an opinion of the Review Committee. At the same time, the Apex Court made it clear that if the opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is set aside, the Court where the proceedings were pending, will continue with the case as if there had been no such opinion.

128. What is significant to note is sub-section (4) of Section 2 of the Repeal Act. It authorises the Committee constituted by the Central Government to exercise powers of the civil Court in respect of discovery and production of any document, requisitioning any public record or copy thereof from any Court or office. Sub-section (5) of Section 2 of the repeal Act is a directory provision. It enables the Central Government to constitute more Review Committees as it may consider necessary for completing the review of cases within the stipulated period under sub-section (3) of the Act.

129.

The question is: Whether the direction issued by the Review

Committee is an administrative order or otherwise? On a conjoint

87

conf.5.09

reading of Section 60 of the principal Act as a whole along with Section 2 of the Repeal Act as a whole, we have no hesitation in taking the view that, although the direction issued by the Review Committee cannot be strictly construed as a judicial decision, the mere fact that the Review Committee is entrusted with powers of the Civil Court under the Code of Civil Procedure, 1908, in respect of discovery and production of any document and requisitioning any public record or copy thereof from any Court or office by virtue of Section 2(4) of the repeal Act, coupled with the fact that the direction issued by the Committee is made binding not only on the concerned Government but also the police officer investigating the offence and that, by legal fiction, the proceeding pending against the accused is to be treated as deemed to have been withdrawn from the date of issuance of such direction, it would not necessarily follow that the Review Committee which is an executive body is making a judicial decision. For, whether the prosecution should be withdrawn is the prerogative of the Court in the cases under ordinary law. At the same time, keeping in mind the purport of Section 60 of POTA and Section 2 of Repeal Act, it is not possible to hold that the direction issued by the Review Committee is purely an administrative direction. We may, therefore, justifiably take the view that the direction to be issued by the Review Committee will have to be treated as a quasi-judicial decision. As per the said provisions, the Review

88

conf.5.09

Committee is obliged to review all cases registered under the POTA Act (principal Act) to ascertain whether there is a prima facie case for proceeding against the accused thereunder. For that, it could exercise powers of the Civil Court in respect of specified matters. The direction issued by the Committee would bind the concerned Government, as also the police officer investigating the offence, and, by virtue of legal fiction, where the Court which has taken cognizance, even those cases are deemed to have been withdrawn upon issuance of direction by the Committee. Considering the sweep of the direction issued by the

Review Committee, it would certainly qualify the test of a quasi-judicial decision. 130. The next question is: Whether the direction issued by the

Review Committee is amenable to challenge and at whose instance? There can be no debate that, the opinion/direction of the Review Committee is amenable to challenge under Article 226 of the Constitution of India. The dictum of the Apex Court in M.A.K. Shaikh (supra) leaves no manner of doubt that the direction issued by the Review Committee can be challenged by the aggrieved person. In the present case, the State has filed Writ Petition challenging the direction issued by the Review Committee. Undoubtedly, Section 60 of the principal Act has been repealed. Although Section 2(3) of the Repeal

89

conf.5.09

Act empowers the Review Committee to review all cases registered under the principal Act and further provides for the consequences if the Review Committee opines that there is no prima facie case for proceeding against the accused it is limited to case deemed to have been withdrawn. No express provision analogous to Section 60(5) of the principal Act providing for binding effect of the opinion of the Review Committee on the Government concerned and the police officer investigating the offence is found in Section 2 of the Repeal Act. However, because of the wide import of Section 2(3)(a), consequent to the opinion/direction of the Review Committee, as held by the Apex Court, nothing more is required to be done except the Public Prosecutor drawing attention of the Court to such opinion and which in turn after due verification would pass a formal order of withdrawal of the case qua the accused concerned. We would, therefore, examine the issue under consideration on the basis that the opinion/direction of the Review Committee would bind the Government concerned, as is the express provision in sub-section (5) of Section 60. In that context, we have to consider whether it is open to the State Government to challenge the direction of the Review Committee in any form.

131.

The question is: Whether sub-section (5) of Section 60, if it

were to be still in force, would denude the State from challenging the

90

conf.5.09

directions of the Review Committee? No doubt, the said provision mandates that direction issued by the Review Committee under Section 60(4) shall be binding on the concerned Government and the police officer investigating the offence and the consequence of such direction is that the proceeding pending against the accused is deemed to have been withdrawn. If the concerned Government or the police officer investigating the offence were to challenge the direction issued by the Review Committee under Section 60(4) of POTA, simply on the grounds of some illegality, such a challenge cannot be permitted because of the mandate of Section 60(5). For, the direction issued by the Review Committee is made binding on them. However, if the challenge is founded on the assertion that the direction issued by the Review Committee is ultra vires and complete nullity, we have no manner of doubt that such a challenge would fall outside the purview of binding effect envisaged under Section 60(5) of the POTA Act. It is well-established position that, if it is demonstrated that the finding is perverse, then, such finding would be a jurisdictional error and consequently nullity. Those are matters which will have to be examined on case to case basis. It is not possible to countenance the argument of the defence that the State is completely prohibited from filing writ petition to question the direction issued by the Review Committee because of the mandate in Section 60(5) of the Act. For, indisputably, it is the State Government which has to carry the proceedings by prosecuting the offenders involved in the crime against the society, inter alia, offences under POTA, and in particular, offence against the sovereignty and integrity of the nation, such as falling under the POTA Act. Reverting to the decisions pressed into service by the defence Counsel, of Delhi High Court and the Gujarat High Court, will be of no avail.The said decisions are not authority on the proposition

91

conf.5.09

that even if the opinion/direction of the Review Committee is perverse, suffers from jurisdiction error and is a nullity, it is not open to the Government concerned to challenge the same. The bar of provision such as Section 60(5) of the principal Act would be lifted in that situation. In other words, if the direction issued by the Review Committee is a nullity or ultra vires, that would not bind the concerned Government, nor the police officer investigating the offence notwithstanding the plenitude of Section 60(5) of the Act. 132. We shall now turn to the direction issued by the Review

Committee, which is impugned in the writ petition filed by the State to examine whether it is possible to accede to the extreme argument of the State that the direction is nullity and ultra vires. The Review Committee has dealt with the case of accused Nos. 4 and 5 in paragraph 17. In the first place, it has noted that Section 4(a) of POTA was not attracted against these accused, as there was no recovery of arms or ammunition from them. As regards this opinion, we find the same to be consistent with the evidence / material produced before the Committee. Section 4(a) of POTA could be invoked only if recovery of specified arms and ammunition is effected from the concerned accused. What has been seized at the instance of accused Nos. 4 and 5 is only articles which were explosive substance, R.D.X. Even the learned A.P.P. emphasised that recovery of such articles would nonetheless attract provisions of Section 3 of the Explosive Substances Act and Section 4(b) of the POTA Act, on account of unauthorised possession of any arms, dynamites or hazardous explosive substances or other illegal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not. In other words, the prima facie opinion recorded by the Review Committee

92

conf.5.09

about non involvement of accused Nos. 4 and 5 in the commission of offence under Section 4(a) of POTA is unquestionable; and the

direction so issued, consistent with the said opinion, cannot be the subject-matter of challenge, that, too, at the instance of the State.

133.

The next opinion noted by the Review Committee, as can be

discerned from paragraph 17 of its purported order-cum-direction, is in relation to charge under Section 4(b) of POTA on account of recovery of alleged explosives at the instance of A4 and A5, in the month of November, 2003. In this context, the Review Committee, first, noted that the Public Prosecutor did not have any convincing reply to counter the argument of the defence counsel as to why the accused would keep such explosive material in their possession for over a period of three months after the Bomb Blast incidents, which had occurred lastly in August, 2003. We have no hesitation in taking the view that this view is completely in the realm of extraneous consideration, not germane to the requirement of examining the issue as to whether there is or there is no prima facie case for proceeding against the accused under the Act. The Apex Court, in the case of M.A.K. Shaikh (supra), has ruled, in paragraph 89, to the effect that, where there is some evidence that suggests that a case against the accused might exist, the Review Committee must allow the proceedings to continue.

93

conf.5.09

134.

Moreover, the test to be applied by the Review Committee

has to be analogous to the parameters to be kept in mind by the Court while considering the application for discharge by the accused. Even if we were to take liberal attitude and assume that the prosecution did not explain the said circumstance, that by no standard, could be the basis for the Review Committee to proceed on the basis of conjectures and surmises to answer the matter in issue as to whether there is or there is no prima facie case to proceed against the accused. For that, what is to be considered is the evidence collected by the prosecution during the investigation, even if taken to be as it is, does it indicate commission of some offence and involvement of the accused. Even if slightest of evidence is available on record, as observed by the Apex Court in M.A.K. Shaikhs case (supra), the Review Committee is obliged to allow the proceedings to continue, and not interdict the same. The relevant fact is the seizure of unauthorised explosives at the instance of accused Nos. 4 and 5. The Review Committee could not have ignored that evidence and doubted the prosecution case on the ground that it could not explain the stand taken by the defence as to why the accused would have retained possession of such explosive material even after the Bomb Blast incidents. We are in agreement with the submission of

94

conf.5.09

the learned A.P.P. that this reasoning will have to be discarded, being perverse, a jurisdictional error committed by the Review Committee, and, therefore, nullity. The manner in which the Review Committee

has addressed this point is nothing short of an attempt to appreciate the evidence on record. That cannot be the test for examining whether there is a prima facie case for proceeding against the accused. For

that, the test for consideration of discharge application filed by the accused will have to be applied, and not indulge in appreciating the evidence or answer it on the basis of probability or conjecture.

135.

The other factor that has weighed with the Review Committee

while examining the charge under Section 4(b) of POTA against accused Nos. 4 and 5 is that these two accused were not connected with incidents of terrorism in the four Bomb Blast Cases in any manner, except their alleged involvement in the conspiracy hatched in Dubai by the main conspirator, Ansari @ Abdul Rehman, who was killed in police encounter. The Review Committee, then, found that no

admissible evidence or material was pointed out to show, even prima facie, that these two accused were party to any such conspiracy. As regards this aspect, it is well-established position that the accused, who is charged of being party to the criminal conspiracy need not be

95

conf.5.09

member of the larger criminal conspiracy. He can be charged of being party to the conspiracy even if some overt act is committed by him at any stage of the transaction in furtherance of the conspiracy. The

learned A.P.P. has taken us through the material on record, which discloses the involvement of accused Nos. 4 and 5, being party to criminal conspiracy at one stage or the other. The Review Committee has not adverted to that material at all, though it was on record before it. A sweeping statement is noted in paragraph 17 that no admissible evidence or material was pointed out by the prosecution. As a matter of fact, going by the plain language of Section 60 of POTA and, for that matter, even Section 2 of the Repeal Act, it obligates the Review Committee to itself analyse the entire material placed before it to ascertain whether there is a prima facie case for proceeding against the accused. The Review Committee, therefore, could not have rested its finding merely because the Prosecutor failed to point out any specific evidence from the said record assuming that the Prosecutor had, in fact, failed to do so. Even if we were to accept the opinion of the Review Committee on this point, we fail to understand as to how the same can absolve accused Nos. 4 and 5 from the charge of Section 4(b) of POTA, which can be simpliciter unauthorised possession of explosive substance capable of mass destruction. As a result, even this opinion recorded by the Review Committee, on the basis of which, directions

96

conf.5.09

have been issued, to say the least, is perverse and a case of jurisdictional error, as a result of which, the same is nullity.

136.

The next factor noted by the Review Committee in relation to

charge under Section 4(b) of POTA against accused Nos. 4 and 5 is that the report of the expert / analyst that R.D.X. and detonators allegedly recovered from these accused were explosive substances was not placed before it. Even this opinion is criticised by the learned A.P.P. by pointing out from the record that the C.A. Report was at page 2566 of the material placed before the Committee pertaining to the samples of contraband articles seized at the behest of accused Nos. 4 and 5. The said report reveals that the articles were explosive substances, R.D.X., etc. We find merit in this submission. Accordingly, even this opinion will have to be discarded, being perverse and a case of jurisdictional error committed by the Committee resulting in issuance of directions, which are nullity.

137.

To conclude, we may observe that the Review Committee, by

no stretch of imagination, in spite of the material on record, could have opined that there was absolutely no evidence against the accused 4 and 5 with regard to the charge for offence under Section 4(b) of POTA. In that case, the Review Committee was obliged to allow the

97

conf.5.09

proceedings to continue against the accused Nos.4 and 5 at least for the said charge.

138.

We have no hesitation in taking the view that, even if we

were to adopt liberal approach, the basis on which the Review Committee has recorded opinion that there is no evidence at all against the accused 4 and 5 with regard to charge under Section 4(b) of POTA is perverse and jurisdictional error, founded on that opinion, direction purported to be under Section 2(3) of the Repeal Act was issued, which is nullity. In view of this finding, the first option for this Court would be to relegate the parties before the Review Committee for reconsideration of the matter in relation to charge of conspiracy read with Section 4(b) of POTA against accused Nos. 4 and 5. Considering Section 2(3) of Repeal Act, which stipulates that the review of every case is required to be completed within a period of one year from the commencement of this Act; and, since that period has expired long back, the matter cannot be sent back to the Review Committee for reconsideration. The statute having specified outer time-limit for review of cases by the Review Committee, it may not be possible for the Court to enlarge that time, which will be the inevitable effect of relegating the parties before the Review Committee.

98

conf.5.09

139.

Notably, the time-limit specified in the Act is a definite

period of one year from the commencement of the Repeal Act. The Repeal Act came into force on 21st September, 2004. The Review Committee could, therefore, validly review the case before expiry of one year from that date and not thereafter. The review by the Review Committee thereafter has not been saved by the Repeal Act. In any case, having taken the view that the opinion recorded by the Review Committee on three aspects with regard to the charge in relation to offence of conspiracy and under Section 4(b) of the POTA against A4 and 5, is error apparent on the face of record and nothing short of being perverse, the same would not only be a jurisdictional error, but nullity, and, for the same reason, the direction issued by the Review Committee on the basis of such opinion, in purported exercise of powers under Section 2(3) of the Repeal Act, will be nullity.

140.

Notably, even though the Review Committee is empowered

to issue direction to withdraw prosecution in respect of offences under the POTA against the accused, the same provision does not empower it to issue direction for withdrawal of entire prosecution against the accused for other offences under other enactments. Admittedly,

accused Nos. 4 and 5 were also charged for offences such as under the

99

conf.5.09

provisions of the Explosive Substances Act.

By no stretch of

imagination, the Review Committee could usurp authority to issue direction to even withdraw the prosecution in respect of offences under other enactment against accused Nos. 4 and 5. We find force in the submission of the learned A.P.P. that, even if the Review Committee was of the opinion that no case to proceed against accused Nos. 4 and 5 was made out in respect of offences under POTA, that did not authorise the Committee to issue direction to discharge the said accused A4 and A5 from all the charges, including for offences punishable under other enactments. Even this issue can be justly raised by the State by way of writ petition under Article 226 of the Constitution, notwithstanding the binding effect of the direction in Section 60(5) of the POTA Act, read with Section 2(3) of the Repeal Act.

141.

It is not in dispute that the Special Court has merely acted on

the direction issued by the Review Committee and passed a formal order of withdrawal of the entire prosecution against accused Nos. 4 and 5.

142.

To that extent, even the Special Court has committed

manifest error. Even if the Special Court was justified in following the directions issued by the Review Committee, the directions ought to be

100

conf.5.09

understood as limited to deemed withdrawal of prosecution against the concerned accused for offences under the POTA Act alone. The

Special Court, by virtue of Section 26 of the POTA Act, should have tried accused Nos. 4 and 5 for other offences in the same trial and, at any rate, could have invoked powers under Section 33 of the POTA Act to transfer the case of accused Nos. 4 and 5 to regular Court to try offences simpliciter under other enactments. We, however, eschew from giving any final opinion on this aspect, as it is not necessary to do so, in the fact situation of the present case, for the view we have already taken. 143. If the foundation, on the basis of which, the Special Court

proceeded to pass such order itself is nullity, then, the decision of the Special Court cannot stand the test of judicial scrutiny. We are in agreement with the submission of the learned A.P.P. that, in the peculiar facts and circumstances of the case, the State could not have challenged the direction issued by the Review Committee in earlier point of time, except by filing the present writ petition after the decision of the Special Court withdrawing the entire prosecution against accused Nos. 4 and 5. 144. Taking overall view of the matter, therefore, we have no

hesitation in partly allowing the writ petition as filed by the State and also setting aside the decision of the POTA Special Court impugned in

101

conf.5.09

Criminal Appeal No. 4 of 2009. Resultantly, the appeal preferred by the State, being Appeal No. 4 of 2009, would succeed. We are inclined to do so having upheld the opinion of the Review Committee to withdraw prosecution against accused Nos. 4 and 5 for offence only under Section 4(a) of POTA, and not withdrawal of the entire prosecution including for offence under Section 4(b) of POTA for the reasons recorded hitherto. As a result, the A4 and A5 are relegated before the Special Court for being proceeded in accordance with law for the charges framed against them for all other offences except Section 4(a) of POTA.

145.

In other words, the direction issued by the Review

Committee to withdraw prosecution against accused Nos. 4 and 5 for all offences under POTA will stand modified to direction to withdraw proceedings against accused Nos. 4 and 5 for charge of Section 4(a) of POTA only, in the light of the finding recorded hitherto. Thus, accused Nos. 4 and 5 will have to be proceeded further in accordance with law for other offences under POTA (other than Section 4(a) of POTA) and offences under other enactments for which they have been charged and cognizance is taken by the Special Court. The parties are relegated before the Special Court to proceed against accused Nos. 4 and 5 in that regard in accordance with law.

102

conf.5.09

Consideration of case against A1 to A3 146. After considering the matters pertaining to the writ petition

and appeal regarding the discharge/setting free of A4 and A5 by the POTA Court, now we shall consider matters pertaining to the trial of A1 to A3. We have given our anxious consideration to the submissions advanced by the rival parties and carefully perused the entire record with their assistance in order to ascertain merits from the same for determining whether finding of guilt of each of the accused was rightly arrived at by the trial court. However, having due regard to the stand taken by the defence that there is no dispute about the occurrences including incidents of explosion and / or the persons having been killed/injured during the same and / or damage to the property, as alleged by the prosecution, the analysis will be restricted to the question of involvement of the A1 to 3 in the said incident.

147.

In the first place, we shall deal with the grievance made A 1

to 3 regarding unfair trial. Grievances relating to conducting trial Allowing prosecution to put leading questions and/or not deciding defence objections 148. During the course of defence submissions while pointing out

103

conf.5.09

the evidence of concerned witness and particularly the examination-inchief of said witness, the learned Counsel for A1 and A3 had repeatedly made the grievance that throughout trial an attempt was made on part of prosecution to put leading questions to prosecution witnesses. It was urged that in spite of the objection raised on

respective occasion since commencement of trial, that was continued by the prosecution. That forced the defence to request the Trial Court to record examination-in-chief of prosecution witnesses in question and answer form.

149.

It was further urged that during recording of examination-in-

chief of prosecution witnesses in such manner some time the objection raised was decided by the Court. However, on majority of occasions same were deferred for deciding at the time of the final submissions at trial. It was further urged that the Trial Court failed to decide such objections at later stage and even while delivering the judgment, same has remained undecided. That has resulted in causing grave prejudice to the defence. It was urged that this Court ought to examine each objection which was raised and recorded but has remained undecided. Further, the evidence permitted to be brought on record in such a improper manner deserves to be excluded from consideration.

104

conf.5.09

150.

Having regard to the said submission the learned defence

Counsel was asked to point out whether after recording of evidence of the prosecution witness was over and before commencing and concluding examination of individual accused under Section 313 of the Code of Criminal Procedure, the defence had moved the Court for deciding such (undecided) objections and invited order of the Court thereon. In response to the said query the learned defence Advocate

fairly submitted that they had not moved the Court either by making a formal application or an oral request to decide those objections prior to the conclusion of the examination of individual accused under Section 313 of the Code of Criminal Procedure or otherwise. The defence Counsel were further asked to point out the said objected questions. In response, in written arguments, they have referred to the relevant questions and objections. Accordingly, at the end of defence

arguments, the defence Counsel were given liberty to point out the objected questions put to the prosecution witnesses. 151. In response to the same initially a long list of such questions

asked and objection raised for 103 witnesses examined by the Trial Court was submitted on behalf of the defence by mentioning witness wise, page numbers regarding such questions. After commencement

105

conf.5.09

of examination of the questions pointed out from the said list and after examining some of them as it was revealed that the same cannot be said to be leading question; the learned defence Counsel requested for permitting them to re-check and submit a fresh list and/or to confine their objection only to certain questions in the said list. That time was given to the defence counsel. Even thereafter, we noticed that

questions pointed out in the revised chart were apparently not leading questions. Again time was sought by defence to recheck the said aspect and confine the objections to selected questions. Ultimately, as recorded by us in detail in the order sheet form dated 12.11.2011, the learned defence Counsel confined the objection for the questions permitted to be asked to PW-2 and PW-4 at page 1216, 1217, 1322 and 1323 of paper book being the leading questions. The learned counsel also pointed out the objections recorded on pages 1426, 1518, 1544, 1555, 2400, 2415 and 2522 and urged that the objection thereto were wrongly rejected by the Trial Court. Similarly, the defence Counsel drew our attention to pages 3646, 3659 and 3555 and urged that regarding the said questions the objection taken by the defence were wrongly overruled. 152. The learned APP urged that there is no substance in the

submission about unfair trial to the defence. It was urged that on the

106

conf.5.09

contrary the record before the Court regarding the relevant respect also indicates that unnecessarily an attempt was made to raise objection for every question asked during examination-in-chief in spite of the same being permissible. She urged that only in order to burden the Court

record if not the Court and/or to disrupt the learned APP in examining the witness, the defence had deliberately raised those series of

objections. They compelled the Court to avoid disruption of a trial by recording the evidence in question and answer form. She urged that the defence, however, did not insist for recording of cross examination in similar manner - question and answer form. The learned APP urged that the defence having failed to invite order of the Court on the undecided objections during the trial itself much less before examination of individual accused under Section 313 of the Code of Criminal Procedure, is indicative of defence having waived those

objections, if any. She urged that since only the legally permissible or admissible evidence and or the circumstances emanating from the same can be put to the accused during the examination made under Section 313 of Code, not moving the Court for getting the objection decided from the Court leads to no other inference other than the defence having waived the objections raised. She further urged that with such a conduct now the defence should not be permitted to raise this grievance as allowing them to raise the same would amount to

107

conf.5.09

permitting them to take advantage of their own wrong with a view to deliberately some how prolong the proceedings to get away from the extreme penalty awarded to them, which they deserved for the heinous crime.

153.

The question that arises is about the

admissibility of

evidence and or the objection raised thereto. It will not be out of place to pinpoint the observation regarding such aspect made by learned authors Woodroff & Amir Ali :in the treaty on the Law of Evidence by Woodroff & Amir Ali 14th Edition wherein the ld. authors upon the subject have observed at page-317 as follows : The question of admissibility of evidence is a question of law to be decided by the Judge. Where a Judge is in doubt as to the admissibility of a particular piece of evidence, he should declare in favour of admissibility rather than of non-admissibility. As a general rule evidence should never be shut out. Under the Evidence Act admissibility is the rule, and exclusion the exception, and circumstances which under other system might operate to exclude are, under the Act, to be taken into consideration only in judging of the value to be allowed to evidence when admitted. The object of a trial in every case is to ascertain the truth in respect of the charge made. For this purpose, it is necessary that the court should be in a position to estimate, as its true worth the evidence given by each witness, and nothing, that is calculated to assist it in doing so, ought to be excluded, unless, for reasons of public policy, the law expressly requires its exclusion.

It is further observed on page 318 of the same book.

the question as to the admissibility of evidence should

108

conf.5.09

be decided as they arise and should not be reserved until judgment in the case is given.

The said author has further observed on page-321 as follows:(b) Varying decisions as to admissibility. An interlocutory order by the court holding that certain evidence is admissible can legally be varied by it, though in practice it is not often done. But a Judge who had refused to accept certain evidence in the first instance has no jurisdiction to take it again into consideration, unless some explanation or reason can be given for it.

The said ld. author has further on page 3710 in Vol. 4, observed as under :It is the duty of the trial Magistrate or Judge to refuse admit evidence which is not admissible according to law. The fact that a document was admitted without any objection from a party does not entitle the court to admit in evidence what is in law inadmissible. It may be noted that the reception of inadmissible evidence would be less injurious than the rejection of admissible evidence, because, in the former case, in arriving at a decision the evidence wrongly admitted can well be excluded from consideration whereas, in the latter case, the evidence wrongly excluded can only be brought upon record by having recourse to further proceeding necessitating thereby the prolongation of the trial and possible harassment to the persons concerned.

154.

However, in the same context, the Hon'ble Apex Court in the

case of Bipin Shantilal Panchal vs. State of Gujarat, reported in AIR 2001 SC 1161, observed in paras 12, 13, 14 and 15 to the following effect.
"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised

109

conf.5.09

regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings. 13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed. 14. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness

110

conf.5.09

of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. 15. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."

In light of aforesaid observations, the grievance made of trial Court having not decided objection raised at the threshold would not survive. 155. Since the question arising is in relation to asking of a

leading question, it will not be out of place to reproduce the legal provisions pertaining to the same found contained in Section 141 and Section 142 of the Evidence Act.
Section 141: Leading questions Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question. Section 142: When they must not be asked Leading question must not, if objected to by the adverse party be asked in an examination-in-chief, or in a re-examination, except with the permission of the court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. (Emphasis supplied)

156.

Thus upon plain consideration of the provision of Section

141 of the Evidence Act, it is clear that in order to term a question as a

111

conf.5.09

leading question the same must suggest the answer which is wished and/or excepted to be received by the person asking the same. The said language clearly indicates that the answer must be implicit within the said question asked. In view of the same, if more than one answer is/are possible to the question asked and they are not within the question asked, then, the same cannot be termed as a leading

question. In other words, if the answer either yes or no is expected from the question, then the said question cannot be said to be a leading question.

157.

Now considering the provisions of Section 142 of the

Evidence Act, it permits putting of a leading question in certain contingencies. The earlier part of the said provision relates to putting of a question during the examination-in-chief or re-examination in the event of the same being objected by the adverse party, unless permitted by the Court. Thus, the said earlier part clearly confers discretion upon the Court to permit asking leading question even during the

examination in chief or re-examination. Considering the purpose for which trials are held, i.e., quest for the truth, the Court cannot be a silent spectator. In that, even if it were to be a leading question, the Court has ample power to permit it if the question is relating to matters which are introductory or undisputed or which have been already

112

conf.5.09

sufficiently proved. Indeed, the later part of the said section makes it abundantly clear that the discretion conferred upon the Trial Court is not unguided, untrammeled or arbitrary, as guidelines for exercising discretion are found in the said provision. The word, shall" used in the second part of this Section makes it clear, the circumstances in which the Court may permit putting of a leading question during the examination in chief i.e. in respect of matters (a) which are

introductory (b) undisputed and (c) which in the opinion of the Court has been already sufficiently proved. Thus, it is clear that in the event of Court having permitted asking leading questions in the

examination-in-chief for such a matter, then, granting of permission would not amount to improper exercise of discretion or an unfair trial.

158.

In this backdrop, we shall now consider the questions in

respect of which objection was raised in seriatim. Firstly, the question pointed out on page 1216 and 1217 of the paper book and the objection raised thereto. We do not find any substance in the said objection raised, as the witness had earlier stated that the bomb was near the bus stop. By the said question witness was asked whether Hanif had informed him as to where the bomb was kept at Seepz (Andheri). The earlier answer given by the said witness reveals that Hanif had informed him on phone that there was bomb blast in

113

conf.5.09

Ghatkopar, BEST bus at Ghatkopar and the bomb which was kept at Seepz (Andheri) had failed. Thus, the said answer conveys two facets i.e. occurring of bomb blast incident at Ghatkopar and secondly that the bomb which was kept at Seepz (Andheri) had failed. The objection is in the context of the second aspect describing the place where the bomb was kept had failed i.e. Seepz. As aforesaid, the witness in his previous answer referred to that aspect. In the said context even

considering the answer given by the witness and recorded in earlier paragraph 13 to the effect, the first bomb blast which was unexploded was to be caused at Seepz, in Andheri area as bomb blast was planned near bus stop on 02.12.2002 ......... This answer conveys the place at which the said plan was to be executed i.e nearby the bus. Suffice it to note that the question does not give any clue regarding the nature of the said bomb or what had happened to that bomb or the place where the same was left below the seat. In our opinion, the objected question did not give clue regarding the place at which the bomb was planted. Therefore, it is difficult to accept that objection. It deserves to be disallowed. 159. Now taking up the objection raised regarding the question

put to PW-4 Anil Shantilal Pawar and appearing at page 1322 and 1323 of the paper book the relevant questions and the objection raised is as under:

114

conf.5.09

Q. Whether you had purchased sim card bearing No. 9892451164? (Ld. Advs. For defence objected question on the ground that it is leading question and it is regarding contents of documents.) Ans:-It was purchased. Q. How many sim cards were bought commencing from No. 98924 as initial digit and which no. they are? Ans:- Three sim cards were bought. They are 9892451184, 9892451167, 9892451164 were purchased. Q. What is the reason for not writing full sim card nos. in the challan? Ans:- The initial digit 98924 are common digits, therefore they are not mentioned again. Q. Who made signature on the document?

Ans:-Signature was made by representative of Indu Commercial Corporation. Q. Whether it was signed in your presence?

Ans:-It was signed in my presence. Q. Now attention of the witness is invited to Exh. P-278, who had filled in this form and before whom? Ans:- The form was filled by customer Mr. Habeeb Umar. Q. Whether contents of this documents are correct? Ans:- Yes. (Document is marked Exh. P-280 subject to objection raised by Ld. Advs. for defence. Objection will be considered at the stage of arguments).

115

conf.5.09

160.

PW 4 was examined by the prosecution for proving sale of

simcard to encountered accused Nasir i.e. card which was found in a mobile on his person after the encounter. It is the prosecution case that said card was purchased by said Nasir under the name Mr. Habib Umar from the retail shop in which PW 4 was working. It was purchased from Indu Commercial Corporation - authorized agent for selling the card for the mobile company. The said fact had already surfaced on the record during the prosecution evidence led, including the

examination in chief of PW 4 paragraph 1, 2 and 3. Considering the fact that the retailer did not purchase a single card but in bunch of cards; and as the prosecution was concerned only with a particular card, the relevant question appears to have been put to PW4. The reference regarding the purchase memo Exh. P-278 regarding purchase of six card had already surfaced on the record. Thus, the question

cannot be said to be uncalled for or the manner in which the said first question was framed cannot be said to be a leading question, if considered in light of the later part of Section 142 of the Evidence Act. The same is the case regarding the other question asked to the witness as apparently the said purchase memo was not containing entire 10 digit number of the relevant simcard.

116

conf.5.09

161.

Similarly the case regarding further question put to the

witness for adducing evidence regarding the signature upon said purchase memo or the person who had filled said form for purchasing the card also cannot be said to be out of context or an impermissible leading question as such. Similarly, the last question referred to

above, being put for proving the contents of the documents, the same also cannot be said to be a leading question. Such a conclusion is inevitable as none of the said question within themselves was containing one and only one implicit answer suggested with a hope of getting the same. Thus, careful consideration of question asked in

examination-in-chief and objection raised and answer received clearly reveal none of them being leading question, much less impermissible leading question. Thus, we do not find any substance in the objections raised and/or infirmity in the conduct of trial due to allowing putting such questions to the witnesses during examination-in-chief. Hence, the argument that grave prejudice has been caused to accused while facing the trial, is untenable.

162.

Now considering the other objection, it is regarding

objections improperly disallowed. Out of them first question is found recorded on page 1426 of the paper book. The said question, objection raised and the reasoning given for the same is as under.

117

conf.5.09

Q. Did it happen that after you and the witnesses were briefed by Mr. Wallishetty in crime detection office, you came out of that room? Ans:- No. I had not came out of the T.I. Parade room. I had visited the room where I held T.I. Parade on two occasions first for to select the room and secondly to hold T.I. Parade. After my second occasion to visit the parade room, I had came out of that room after holding T.I. Parade. Q. Did it happen that at second time when you entered in the parade room you had came out again and went in other room and close the door and then went in parade room? Ans.: [Note: Ld. Adv. wishes to ask this question with reference to page two of the T.I. Parade panchanama. In first para indicating that witnesses were asked by her to sit in adjoining crime detection office. She closed the door of that office and verified that they will not come in contact with others comes after the averment regarding selection of panchas, however Ld. Cross Examiner is pre-supposing in the question as if the witness had entered in the room first where T.I. Parade was held and then came out so as to close the door of adjoining room, therefore Ld. Cross Examiner cannot start with imaginary assumption because background has to be created for asking such question. According to witness he had visited the parade room twice first for to select the room and then according to her she entered in the room and came out after holding T.I. Parade with such admission in the cross-examination, the latter question cannot be allowed hence question is disallowed.] 163. After carefully considering the said question and the answer

recorded to the preceding question to the effect, "It is correct to say that after my work was over I had come out of the room. I had not come out of T.I Parade Room till the work of T.I. Parade was over."

118

conf.5.09

We are in agreement with the reason given by the Trial Court for not accepting the objection.

164.

Now taking up the next question/objection taken and the

reason disallowing are found recorded at page 1518 which is to the effect. Q. Whether the shops of providing C.N.G. kit at Sion-Koliwada are licensed from the R.T.O.? (Note: Ld. S.P.P. objected this question on the ground that it is irrelevant as this witness has no personal knowledge about the permission granted for C.N.G. for those shop keepers. Ld. Adv. May first question about knowledge of the witness as to whether R.T.O. Had approved the shop keepers in Sion-Koliwada then only this question may be put to this witness). (Note: Witness at this stage states that he is not feeling well therefore he is not in position to give correct dates as according to him he is under tension. According to him the date may be wrong but he is sure about January 2004. As it is recess time, Ld. Adv. Mr. Wahab requested the Court to Adjourn the case till tomorrow, on the ground of personal difficulty hence case is Adjd. To 30.10.2005.) 165. The said question as framed, was not for adducing evidence We fail to

of PW 15 regarding C.N.G. Gas kit fitted in a taxi.

understand as to how this question is relevant one at all with the matter in issue. Besides, we do not find any infirmity about the trial Court having asked to reframe the said question. At any rate, it appears that the defence did not pursue that fact later on during the

119

conf.5.09

cross examination. Moreover, after re-framing of the question, no further discussion on this would be necessary except adverting to Section 138 of the Evidence Act which reads as under:

Witness shall be first examined-inchief................................................................................. ....................................................................................... The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. 166. The other shop providing C.N.G. Gas kit at Sion-Koliwada

was authorised or otherwise being not, relevant issue at the trial, we do not find fault in the direction given by the Trial Court to reframe the question. No prejudice is caused to the defence at all.

167.

The next question objected and the reason given by the Trial

Court for disallowing the same are found recorded on page 1544 of the paper book. Q. This is not in your Police (Statement)..... can you assign any reason? Station.....

Ans.- (Note : Before answering this question the Ld. cross-examiner to note that previous statement to the Police cannot be used in trial for any purpose unless the witness is to be contradicted with any portion or passage in his previous statement made to the Police. Only significant omission in the evidence in examination-inchief may be brought on record by asking the witness as

120

conf.5.09

to whether he had made any such statement to the Police and thereafter questioning the I.O. as to whether any such statement was made by witness in his previous statement to the Police. Therefore everything which was volunteered by witness in the course of his cross-examn. Cannot amount to significant omission. Hence, question is disallowed. 168. In this context, explanation to Section 162 of the Code i.e.

the provision added to Section 162 of the earlier Code of 1898 reveals that by the same parameter of omission amounting to a contradiction were set out. It is settled legal position that whether a particular

omission amounts to a contradiction is to be determined by the trial Court. Having regard to the said provision and said omission having surfaced in the record regarding the volunteering evidence, we do not find any fault with the reasoning given by the Trial Court for disallowing the said question.

169.

The next question objected and acceptance of the same is

found recorded at page 1555 of the paper book Q. For how long you were using badge of Rammani Mishra? (Spl. P.P. objected this a question on the ground that it is misleading question because it presumes that witness was using badge of Rammani Mishra. Hence, question is disallowed.)

121

conf.5.09

Even though leading questions are permissible in law during the cross-examination, the said question as framed clearly exhibits being complex question i.e. the fact of PW 15 using badge of Ram Mani Mishra and secondly himself using the same for long period. Careful consideration of the answers given by PW 15 during earlier cross examination does not reveal any foundation laid for putting such question, that is to say any answer given by PW 15. In view of the same, discarding of the said question on the said objection also is appropriate. 170. The next question objected was asked to PW 97. The same is

found recorded at page 2400 of the paper book. Q. Have you collected your personal diary or issued, while you were attached to Crime branch office? (Question is disallowed as witness has already answered to that effect.) Q. Have you worked at Police stn.? (Question irrelevant, hence disallowed.)

PW 97 Police Officer was examined by the prosecution in connection with arrest of A2 effected by him along with the other Police Officers while he was attached to DCP CID Unit-11 i.e. Crime Branch Unit. The earlier answers received during cross examination reveals that he was not required to maintain personal diary as he was attached to Crime Branch Office. We are unable to find any fault

122

conf.5.09

with disallowing of the question by the Court. Needless to add the matter in issue at the trial was the said arrest effected by the team of Crime Branch. Hence the question asked to the witnesses whether he had worked at Police Station at the relevant time during the cross examination clearly appears to be irrelevant as rightly ruled by the Trial Court.

171.

The next objected question was put to PW 99 during the

cross examination and objection raised and acceptance for the same is found recorded at page 2415 of the paper book Q. well? Do you know to read and writ Marathi very

Question is irrelevant as the question is asked to the witness by the Advocate in Marathi and witness replied in Marathi, Art. 29 Gelatine stick is in the original form, however it has now become oily. Apart from label Art. 29 colly., there is no other label produced before the Court, bearing my signature. Now considering the juncture at which such question was asked is irrelevant. The same has been rightly disallowed by the Court for the self evident reasons recorded warranting its rejection. The further answer recorded for the next question were pointed by the learned counsel for urging that said question disallowed was not confined to the knowledge of knowing Marathi but was also regarding his ability to read Marathi and thus the same was asked as a foundation

123

conf.5.09

for the further question and as such disallowing the same was improper, also does not appear to be sound submission, in view of answer received from the by witness for the next question. Further more the deposition of PW 99 till then recorded also do not reveal any justification.

172.

The next aspect pointed out relating to objection raised is

found recorded at page (2522). That objection was kept open. The same apparently relates to omissions occurred in the evidence of PW8 to tell certain matters during recording of his police statement. It appears that it was the submission of learned Special Public Prosecutor that Hasanbhai and Rizwan were arrested, the fear was lost. The said point was kept open by the Court at the time of argument. The

relevancy of the said question or the said omission was amounting to contradiction has not been shown to us by the learned defence counsel. At any rate, the said aspect also does not appear to have been vitally connected with the matter in issue. Moreover, even later on the learned defence counsel having not perused the matter for getting the said objection decided, we do not find any plausible reason for

determining the said objection which was waived by the defence at the stage of the argument.

124

conf.5.09

173.

Thus, considering each of the questions for which the

submissions were canvassed, we are unable to find any substance in the grievance of the defence that it is a case of mistrial.

Circumstances/evidence not put to the accused during 313 statement

174.

The defence counsel made a grievance that judgment of Trial

Court reveals amongst other evidence reliance being placed upon (i) the confessions of A1, A2 and A3 during the course of investigation and (ii) the matters emerging from the reports of a Chemical Analyser pertaining to the material allegedly seized during the course of the investigation and sent to them for the purposes of examination for arriving at the conclusion of guilt of the accused for which they were convicted and sentenced. It was urged that after taking into account purpose behind incorporating the provision of examination of accused under Section 313 of Cr.P.C. being primarily for giving him an opportunity to

explain circumstances appearing against him in the in evidence, it was necessary for the trial Court to put the incriminating circumstances to A1, A2 and A3 during their examination under Section 313.

125

conf.5.09

175.

Mr. Pasbola, in the said context placed reliance on the

decisions in the cases of Kaur Sain vs. State of Punjab reported in AIR 1974 SC 329; Anant B. Kamble vs. State of Maharashtra reported in 1995 Cr.L.J. 2583; Inspector of Customs vs. Yash Pal reported in 2009 All MR (Cri) 1195 (S.C.) to contend that said decisions clearly reveal importance of examination contemplated

under Section 313 of Cr.P.C. and the purpose behind it and that in the event of incriminatory material ought to be put to accused during said examination being not put, then the Court is required to leave the same out of consideration. The learned defence counsel further urged that otherwise placing reliance upon such material would be causing great prejudice to the accused resulting in denial of fair opportunity to meet the material against him. It was urged that the trend of latest

decisions reveals that in the event of such a material being not put to the accused, the appellate Court can either send the matter for such purpose to the trial Court or itself put the same to concerned accused. The learned counsel further urged that not putting material of such an immense importance to A1, A2 and A3, and relying upon the same while arriving at the finding of their guilt clearly indicates the trial being unfair to them. It was urged that considering the incident for

which the case is going on having occurred in the year 2002-2003, and

126

conf.5.09

accused being in jail since their arrest in the month of August, 2003 , now it would be improper to remand the matter for such a purpose to the detriment of the right to speedy trial.

176.

The aforesaid submissions were countered by the learned

APP by submitting the same being devoid of any merit.

177.

The learned APP thereafter by drawing attention to sub-

section (1) of Section 313 urged that considering the stage at which the said examination is effected, reveals that primarily such an

examination is required to be effected regarding the circumstances appearing in the prosecution evidence against the concerned accused. She urged that though the word prosecution is not used in subsection (1), still considering the provisions of sub-section (1) and so also presently added the provisions of sub-section (5) by amending Act No.5 of 2009 logically leads to the conclusion of the said examination being in relation to the evidence adduced by the prosecution. It was urged that such a conclusion is inevitable

considering the gamut of a trial of a sessions cases provided under the Code which contemplates the stages of the prosecution evidence, examination of the accused and considering the aspect passing order under Section 232 of Cr.P.C. and thereafter the defence evidence. She

127

conf.5.09

urged that it cannot be gainsaid that examination of an accused is contemplated upon the defence evidence, if any, because the same is unlikely to contain any incriminating circumstances against him due to the same being adduced in support of his defence. She urged that having regard to the same and in stricto senso the confession made by an accused as got recorded by the investigating agency as per the provisions contained in POTA, it is difficult to perceive that the same can be said to be on par with the prosecution evidence. It was urged that not putting the questions to the accused about the incriminatory matters contained in his confession, cannot be said to be detrimental as tried to be canvassed on behalf of the defence. The learned APP added that it cannot be lost sight of the fact that even no cross-examination is permitted regarding the said matters stated in the confession.

178.

It is her alternate submission that with regard to the matter

pertaining to the confession, the same can be divided into two parts i.e. the first part relating to the material regarding recording of a confession of the concerned accused and secondly the matter contained in the confession statement. The learned APP by inviting our attention to the record of examination of each of A1, A2 and A3 submitted that it reveals that the same fully belies the defence submission of the material regarding the first part pertaining to the recording of the

128

conf.5.09

confession of each of accused being not put to each of them. She further urged that considering the purpose behind examination of the accused being not an empty formality, considering the answers to the last question put to each of the accused, the record clearly reveals that even the material regarding the matters contained in the confession was put to each of the accused. The learned APP also placed reliance upon decision in a case of Wariyam Singh and ors. .vs. State of U.P. reported in AIR 1996 S.C 305 in support of her proposition that putting gist of the matters pertaining to the confession has been held to be substantial compliance and the same amounting to not causing any serious prejudice to the accused.

179.

The learned APP further urged that considering the answers

received to the said questions, it is amply clear that no further questions regarding the said matters were required to be put - as putting the same would have amounted to making futile exercise and/or observing empty formality. It was urged that such a conclusion is apparent after considering the said answer received regarding last question put to A 1 to 3 respectively regarding the matters contained in the confession made. In the said context the learned APP by inviting attention to sub-section (5) introduced by the amendment effected to the Code of Criminal Procedure by Amending Act 5 of 2009 urged

129

conf.5.09

that the same reveals that the Court can take help of the Prosecutor and defence counsel in preparing relevant questions which are to be put to the accused. It was urged that considering the purpose for which the criminal trials are held and the settled position that the Prosecutor and even the Advocate for the accused are essentially Officers of the Court, the defence counsel was free to formulate questions to be asked to the Accused and suggest it to the Court. Having failed to do so, it is too late in the day to make this grievance. She urged that though it is true that the amended provision came in force since 31.12.2009, still even prior to the same it would have been the duty of the defence counsel to assist the Court by pointing out certain questions which according to them had remained to be put to the accused rather than trying to make capital of the same before this Court. The learned APP further

submitted that even the decisions pointed out by the learned counsel for the accused reveals that any material circumstance remained to be put to the accused, can be put to him through his Advocate by the Appellate Court or the matter can be remanded to the Trial Court for such a purpose. It was urged that in spite of the arguments being in

progress for quite some time and the discussion about the said aspects occurred during the proceedings having revealed such a mode being permissible, still even at the conclusion of the arguments in these proceedings, the learned defence counsel did not bother to point out

130

conf.5.09

questions which had remained and ought to be put to the accused. She urged that thus futile attempt is made for finding out some loopholes for wriggling out of the punishment rightfully awarded by the trial Court to the accused. She urged that for all these reasons, the

submission under consideration deserves no credence.

180.

Considering the disclosure contained in the confession of the

accused and so also because the evidence of confession are made permissible under the provisions of POTA, the submissions canvassed by the learned APP deserves acceptance. Similarly, considering the provisions of Section 313 of Cr.P.C., we also find substance in her submission that the word used in sub-section (1) of Section 313 appearing in the evidence against him deserves to be construed as prosecution evidence. Thus, matters contained in the confession not put to A1, A2 and A3 cannot be said to be detrimental or the same cannot be said to be a circumstance causing prejudice to them. At any rate, in the facts of this case, we do not find it necessary to decide the wider aspect as to whether the confession of accused can or cannot be treated as prosecution evidence. For, we find that there has been substantial compliance of putting the confession i.e. questions regarding the

regarding recording of the same and the matters

contained in the confession.

131

conf.5.09

181.

However, before dilating about the same and with regard to

the decision pointed out by learned counsel for the accused, the reference to the decision in the case of Shivaji Sahabrao Bobade .vs. State of Maharashtra reported in 1973 (2) SCC 793 delivered by three- Judge Bench of the Apex Court reveals the observations made in paragraph no.16 to the effect: "It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not going put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction." (emphasis supplied) 182. Having regard to the observations made in the three-Judge

Bench decision, we do not propose to make any detail discussion

132

conf.5.09

about the other decisions relied by the defence except stating that in the present case, the said decisions also would be of no assistance to the accused persons.

183.

We say so because the record before us reveals that PW88

DCP Vinod Lokhande had recorded confession of A1 and so also that of A2, while PW 90 had recorded the confession of A3. Now perusal of Exh.P-615 i.e. record of the examination of A1 and more particularly question Nos. 1106 to 1250 from the same pointed out by the learned APP, in no uncertain terms reveals that all the questions pertaining to recording of the confession of said three accused by the three Recording Officers were put to respective accused. Similarly perusal of Exh.P-616 i.e. record of examination of A2 and more

particularly question Nos. 1106 to 1250 from the same pointed out by the learned APP, in no uncertain terms reveals that all the questions pertaining to recording of the confession of said three accused by the three Recording Officers were put to him. Similarly perusal of

Exh.P-617 i.e. record of examination of A3 and more particularly question Nos. 1106 to 1250 from the same pointed out by the learned APP in no uncertain terms reveals that all the questions pertaining to recording of the confession of said three accused by the Recording Officers were put to her. Without dilating in three detail

133

conf.5.09

regarding the matters stated in the said questions put to respective accused, it can be safely held that grievance of questions pertaining to recording of confession of the respective accused were not put to him/her, is without any merit.

184.

Now considering question no. 1660 put to A1 and as

revealed from the examination at Exh.615, A1 was specifically asked the question to the effect do you want to say anything about your confessional statement Exh.506-A recorded by DCP Shri Lokhande PW88 which is now read over to you?. A1 had answered that all the contents of the confessional statement at Exh.506-A are incorrect and the facts appearing in above confession Exh.506-A were not stated by him.

185.

Now considering Exh.616 pertaining to the examination of

A2, it reveals that he was asked similar question i.e. question no. 1660 with change of exhibit number of his confession as 506-A. A2 had answered the said question by stating that confessional statement was already prepared by investigating officer and he was asked by DCP Lokhande to make signature on the confession which was already prepared. Further, contents of Exh.506-A have not been stated by him. Thus, confessional statement is a false document.

134

conf.5.09

186.

Perusal of Exh.617 examination of A3 also

reveals that

similar question no.1660 was put to her with a change of exhibit number of her confessional statement (Exh.522-A) recorded by DCP Mrs. Archana Tyagi PW90. A3 answered to the said questions that her confessional statement read over to her was false and the facts stated therein were not stated by her.

187.

Thus, considering the said question no. 1660 put to each of

the accused, it is crystal clear that the same was pertaining to the matters stated by respective accused in their confession to the Recording Officer. Now considering the answers to the same given by respective accused, it is clear that each of the said accused was given an opportunity to explain the contents of his/her confession. Their answers have also been recorded. In view of the same, it was rightly canvassed that it does not lie in the mouth of the defence to contend that the matters from the said confession were not put to the respective accused. The argument that it was necessary to put each of the matter stated in the confession made by respective accused, is devoid of merits. Needless to add that examination contemplated under Section 313 of Cr.P.C. should be meaningful. After receiving such answers from the accused, again putting each of the matters from the confession would have rendered the same as an exercise in futility.

135

conf.5.09

188.

Furthermore, as pointed out by learned APP, the learned

defence counsel being well aware of the legal position explained succinctly in the case of Shivajirao Bobade (supra) i.e. not putting circumstance to the accused, by itself would not be ipso facto vitiating the trial, no attempt was made on their part to offer any explanation for the circumstances from the confession and C.A. report which according to them were not put to the accused. The only submission canvassed was that after lapse of time after the incident , remanding the matter to the trial Court would be detrimental to the right of accused to have speedy trial. Accordingly, we are unable to find any merit in the submission advanced.

Not putting the matters from C.A. report to A1, A2 & A3

189.

The grievance made by the learned counsel for A1 and A2 is

more or less on the same lines which we have rejected earlier. According to the defence, not putting the matters from the C.A. reports regarding the material which was either seized from the spot of the explosion and/or from the house of A1 and A2 or from the places at which the contraband was recovered as a sequel to the statement leading to recovery of the same made by them, has resulted in miscarriage of justice. It was argued that it is prosecution case that

136

conf.5.09

gelatin sticks were used in preparing bomb for attempting to cause the blast at Seepz and for causing at Ghatkopar and RDX was used for preparing bomb which had caused explosion at Zaveri Bazar and Gateway of India. Further, the accused persons were found in

possession and/or connected with such a material being revealed from recovery of similar material either from their house or the place pointed by them. Therefore, it was necessary to put the relevant CA report regarding such material seized from respective place and sent to C.A. for examination. Failure to do so has caused prejudice to them, having an effect of vitiating the trial on the same count as canvassed for the matters from confession.

190.

The learned APP countered this submission on the similar

arguments already adverted earlier. She submits that questions pertaining to the seizure from respective places were put to each of the accused. They did not take any stand of either some other material being found at the said places and/or the material seized from the respective places being not sent to C.A. for examination and/or some other material being sent inspite of evidence placed before the Court that the material sent to C.A. was received by him in intact condition. It was urged that the matters from the C.A. report again in stricto senso being not the evidence but the opinion arrived by C.A. regarding the

137

conf.5.09

material examined and no stand being taken by the accused as pointed , the grievance made on the part of defence is without any merit. The learned APP has also placed reliance upon the decision in the case of State (Delhi Administration) .vs. Dharampal reported in (2001) 10 SCC 372.

191.

In the said context, without unnecessarily reciting in detail

from the record of examination of each of A1 to A3, it reveals that evidence regarding seizure of the said material from the respective places and/or sending the same to the C.A. was put to each of the said accused but the accused did not take any stand in that behalf. It is, therefore, difficult to perceive that substantial compliance of drawing attention of the accused person to the incriminating material against them was not made. In other words, there is no substance in the grievance that opportunity as contemplated under Section 313 was not given to the respective accused. It can be further added that somewhat similar position has been spelt out from the decision in the case of Dharampal (supra) pointed out by learned APP and particularly the last line from the paragraph no.15 of the said decision to the effect
"in our view in such cases it is enough if the attention of the accused is brought to the report or the certificate, as the case may be. It is not necessary that contents of the report be also put to the accused."

138

conf.5.09

Needless to add that no explanation has been offered before us by the defence Counsel. Resultantly, we have no hesitation in taking the view that no prejudice has been caused to the Accused. It is certainly not a case of mistrial at all.

Grievance regarding four incidents clubbed together and/or regarding the charges framed.

192.

With regard to the grievance regarding the clubbing of four

incidents together, we may advert to Section 219 (1) and Section 220 (1) of the Code . The same reads thus : "219. Three offences of same kind within year may be charged together(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (2) ..................... 220. Trial for more than one offence (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence." (2) ................ (3) ................ (4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one

139

conf.5.09

trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts. (5) ................ 193. It is beyond any dispute that in the present case charges

framed are for commission of offences in four incidents occurred on different dates and/or different places. Indeed, Section 219 limits clubbing of only three offences within a year to be tried at one trial. However, still it is difficult to accept the defence criticism that clubbing of four incidents together at one trial was in contravention of any law and the same caused prejudice to the accused and/or has resulted in failure of justice. For, Section 220(1) makes it abundantly clear that trial can be held for more than one offences if the acts constituting the same are committed in the same course of transaction. Further, Section 220(4) also makes it clear that out of several acts committed and the same constituting offence if are constituting different offence when combined, then the same can be tried at one trial for the offence constituted by such acts when combined.

194.

On the aforesaid backdrop, it may be noted that the

prosecution case is that the offences for which the accused persons are charged at the present trial were committed by them as a result of conspiracy hatched initially at Dubai and progressively developed in

140

conf.5.09

India and the object of the same being commission of terrorists acts i.e. the acts of attempting to cause or causing explosion at four different places i.e. Seepz , Ghatkopar, Zaveri Bazar and Gateway of India. Since it is the prosecution case that acts committed by A1, A2 and A3 were for achieving the object of conspiracy hatched and the combined overt acts committed by them being preparing the bombs and planting of bombs at the said places makes it crystal clear that all the acts designed to achieve the said object would be required to be treated as closely connected with each other and as such being committed in the same course of transaction. Without making unnecessary detail dilation about the said aspect, it can be safely said that matters stated in confession of each of the said accused prima facie reveals the acts committed by him were for achieving object/design of the conspiracy hatched. Furthermore commission of such acts by the same person by playing his role for every episode being the pointer towards himself being the conspirator of the conspiracy alleged. It is also difficult to accept that without the said accused being tried at one trial, the prosecution could establish his involvement in the conspiracy.

195.

As a matter of fact, the prosecution evidence clearly points

out that the blasts at Zaveri Bazar and Gateway of India were done on the same day one after the other in furtherance of the conspiracy. That

141

conf.5.09

in any case would form series of acts so connected together as to form the same transaction by same accused. That offence occurred within a span of one year from the first offence at Seepz on 2 nd December, 2002 followed by the second at Ghatkopar on 25th July, 2003. Thus, there is no breach of Section 219 of the Code. Furthermore, merely because the offences in more than one transaction being tried together by itself is not enough unless it is shown that prejudice is in fact caused to the Accused in defending himself at the trial. No pin-pointed submission in this regard has been made before us. Needless to add that the

provisions pointed out being relating to the procedural aspect and not relating to violation of substantive right vested in the accused and justice/law being not mistress of the procedure and even violation of the same to the detriment of defence being not shown, the submission canvassed will deserve to be rejected. Thus examining the matter from all angles, we do not find any substance in the same.

Grievances regarding the charges framed at trial.

196.

Mr. Pasbola, learned counsel for A3 and so also Mr.

Kunjuraman, learned counsel for A2 had made the grievance as stated earlier regarding the charges framed. Before considering the said grievances it will be necessary to say that the legal position regarding

142

conf.5.09

framing of charge has been fairly settled by catena of decisions delivered by the Apex Court to the effect that mere error or omission in framing of charge by itself would not vitiate the trial unless and until it is shown that thereby the accused was prejudiced to the extent of having caused miscarriage of justice. The same is obvious as the charge is mainly framed for giving a fair idea to accused facing the trial to know the case which he is supposed to meet. Thus, examining the matter from the said angle in event of the accused having understood the case against him at the trial and undergoes the gamut of trial, then it will not be open for him to make a grievance regarding minor discrepancies, errors, defect in the charge framed unless and until the same has resulted in mistrial or miscarriage of justice.

197.

On the said backdrop, upon examining the charges framed

at trial, the same do reveal that specific date of hatching of conspiracy has not been depicted in the same. However, considering the numerous acts committed in pursuance of the conspiracy and the long drawn period over which such acts were committed for furthering object of conspiracy, it would have been practically impossible to specify the date of hatching of conspiracy and/or the acts committed by each of conspirator during the course of the continuance of the conspiracy. Having regard to the same and having regard to the observations of the

143

conf.5.09

Honble Apex Court amongst other in para-18 in the case of Nazir Khan & Ors v. State of Delhi reported in (2003) 8 SCC 461 to the effect :Privacy and secrecy are more characteristics of a conspiracy, than of loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or by circumstantial evidence. It is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference. (emphasis supplied)

It cannot be said that charge firstly having failed to specify the date of hatching of conspiracy can be considered as defective charge framed at the trial. Needless to add, no prejudice is shown to have been caused to A3 or any other accused. In the same context, the perusal of the decision in the case of Dinesh Seth vs. State of NCT of Delhi reported in (2008) 14 SCC 94 : (2009) 2 SCC (Cri) 783 and paragraph nos.20 and 21 from the same relied by learned counsel for A3, will be of no avail. In the said decision, the concerned accused was charged for commission of offence under Section 498-A and 304 (B) of IPC. The Court therein had come to the conclusion that details of the acts constituting cruelty being not mentioned in the charge, the same occasioned prejudice to the accused. The position in the present

144

conf.5.09

case being different, the said decision cannot be of any assistance to the defence.

198.

Similarly, the observation in the case of Nazir Khan (supra)

also makes it abundantly clear that no importance can be given to the grievance made that in spite of the prosecution case was that Nazir (encountered) was the main architect of the conspiracy, still his name is not mentioned in the charge framed as co-conspirator. This has resulted in charge framed being defective and/or the same having resulted in miscarriage of justice due to having caused prejudice to the accused. Even this argument does not commend to us. Moreso,

because the defence has failed to pin-point what prejudice is in fact caused to the defence. Nothing of that has been shown to us. The same reasoning would apply for not accepting general submission canvassed of charge framed being blissfully vague and/or charge for every distinct offence being not framed. It is difficult to accept the said criticism after reading charge Exh.P-5 as a whole as the same fairly depicts the prosecution case against A1 to A3.

199.

Now with regard to the grievance made by the learned

counsel Mr. Kunjuraman with regard to charge framed at head fifthly of the same being vague as the same amongst other only contains the

145

conf.5.09

recital "of A1 to A3 on or about 25.8.2003

about noon time

proceeded towards the junction of Dhanji Street and Yusuf Meher Ali Road at Mumba Devi Road and had planted a bomb etc." It does not specify act precisely committed by A2. It is difficult to accept this submission in light of the fact of the prosecution case of bomb being planted in a taxi - was kept waiting at the said place under the guise of parking and the same having exploded. One cannot loose sight of the purpose behind framing of charge, envisaged under provisions of Section 218 onwards of the Code of Criminal Procedure. The matter stated in the charge and so also the charge head sixthly for which also similar sort of grievance was made by learned counsel , clearly gives an idea of act of planting a bomb for causing an explosion being jointly committed by A1 to A3. Since the charge was depicting main act jointly committed giving necessary notice to the concerned accused regarding accusation which he is supposed to face at the trial, the said submission cannot be considered as an error or defect in a charge, much less qua A2. It is too late in the day to raise this ground, that too, in absence of factum of prejudice caused to the defence is shown. Needless to add that it has not been brought to our notice that any attempt was made by the defence during the prolonged trial to invite attention of the trial Court to the so called errors , if any.

146 Grievance regarding witnesses being planted by the prosecution & opportunity not given to examine the defence witness

conf.5.09

200.

With regard to the aforesaid grievance made by learned

counsel for the defence that surprisingly enough all main witness / witnesses examined by the prosecution regarding identity of the concerned accused connected with the four main incident to which the case relates, have asserted that they have identified the accused

concerned i.e. the accused identified by them as connected with the said incident, due to occurrences of some quarrel ( bacha-bachi) or scuffle with him. It was urged that this indicates that the witnesses were not truthful witnesses and/or having been planted by the

prosecution. The submission canvassed that thus all of them deserve to be termed as a chance witness and their evidence regarding the relevant aspect being not corroborated by any other independent evidence was liable to be discarded on the said count alone.

201.

It is not possible to countenance this argument. In our

opinion, the evidence of each witness will have to be read as a whole. Even if we may agree that every witness claims to have identified the accused concerned because of happening of particular event at the relevant time, that does not warrant disregarding the witness as a whole. Without giving the details of prosecution witness, at the

147

conf.5.09

present stage, it can be safely said that with regard to first incident the witness had come across accused persons while boarding the bus, the position regarding the second incident is no different as he was also a passenger who had scuffle with the culprits while alighting the bus. With regard to the third incident, witness appears to have come across concerned accused during the course of travelling on the road. In the fourth incident the witnesses came across accused persons having visited Gateway of India in a taxi. The said brief narration

regarding the place at which the prosecution witness came across the concerned accused reveals the stated reason given by the respective witnesses was probable one. It is, therefore, difficult to accept that

merely because the witnesses were either passenger, a passerby on the road or the hawkers or the person working at pay and park etc. by itself would not be a good ground to term them either as unnatural witness or a chance witness as tried to be canvassed. The same is apparent as evidence of each of the witness reveals the reason behind the said witness being at the particular spot. Notably, the reason given by the respective witnesses remained un-shattered during the cross

examination. In that case, their evidence is not liable to discarded on the argument under consideration. Apart from the same even presuming that the witness appearing to be a chance witness i.e. "witness claiming to be witnessed for the incident due to having

148

conf.5.09

reached the place of incident by sheer chance" which does not appear so in the present case; still the evidence of even chance witness will not be liable to be discarded on that count alone as at the most his evidence will be required to be assessed with due care and caution. In view of the same it is difficult to accept said criticism.

202.

In the context of further submissions that evidence of the

said witnesses is liable to be discarded on the count of their evidence lacking support of corroboration from some other independent evidence, it will be necessary to say that the same being contrary to the legal position will not deserve credence. The reference to the decision of Apex Court in the case of Vadivelu Thevar vs. The State of Madras reported in AIR 1957 SC 614, wherein Hon'ble Apex Court while considering the question of Court insisting upon plurality of a witness in a murder case, in paragraph nos. 11 and 12 amongst other regarding type of witnesses has observed:11. In view of ........................................................................ case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable.

149

conf.5.09

12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise when only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain may precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witnesses, which is the only reliable evidence in support of the prosecution.

203.

Considering the above, in event of witness being found to

be from category " reliable witness, then no corroboration for him would be necessary. Whether the prosecution witnesses are reliable or otherwise will be required to be firstly ascertained and in the event of a finding that he/she is not a reliable witness then only the question will arise of seeking corroboration for his evidence and/ or discarding the same in absence of same. Even the case regarding investigating agency having planted concerned witnesses will be required to be

150

conf.5.09

determined after considering the evidence of the said witness as a whole and in the light of other evidence surfaced at the trial.

204.

In the same/similar context, the grievance was made by

learned counsel for A1 that though effort was made by the defence to establish nexus of a particular witness by examining defence witness and/or by seeking summons for production of the documents to throw light upon the connection of witnesses, particularly that of panch Shri Popat, but, the court rejected the request to issue summons to that witness. It was also urged that the defence had also not received

proper opportunity to establish the defence by examining the witnesses intended to be examined by them due to witness was either discharged by the court or the summons being not issued.

205.

The said submissions were rightly repelled by learned APP

by pointing application dated 22nd January 2005 Exh.D-94, made by A1 and particularly item nos.4 to 9 therein by which the said accused had sought witness summons i.e. for the production of documents and examination of witnesses with regard to the press cuttings pointed out that in the said application. The addresses of the said press reporters were not mentioned. Besides, statement was made that in case of their need, the same would be furnished to the Court, for summoning

151

conf.5.09

the witness. The learned APP thereafter by inviting attention to the order dated 4th September 2008 passed by the trial urged that the said order in clear terms reveals that learned counsel for A1 had made statement that he does not want to lead any oral evidence and has finished defence evidence. document also reveals that According to learned A.P.P., this direction was sought against the

prosecution for producing photostat copy of confessional statement of A8 Dr. Abdul Wahid in another POTA case i.e. Special Case No.2 of 2003. It was urged that photostat copy not being the primary

evidence, the same was rightly rejected by the Court. It was further urged that similarly the witness Gulabrao Pole summoned was required to be discharged because document sought to be proved through him was not produced by the defence. The position as pointed by learned APP is supported from the order sheet. We find it difficult to accept the grievance of the accused person of not being offered fair opportunity to them for producing defence evidence. In fact, they themselves had closed the defence evidence. Thus, there is no

question of any injustice caused to them.

Grievance regarding evidence of chief IO PW103 and incidental matter

206.

It was urged on behalf of the defence that PW103 has given

material part of his evidence regarding investigation effected on the basis of

152

conf.5.09

note-sheet prepared by him and not on the basis of the case diary. It was urged that on that count alone his evidence will have to be discarded. It was urged that his evidence itself denotes that he has not carried out the investigation as required by the provisions of POTA. It was contended that in event of the said witness not remembering any matter, it was permissible for him to give the evidence on the basis of case diary which in fact was never brought by him at any point of time in the Court. However, instead of the same such a course adopted by him creates grave doubt about the matters spoken by him during the evidence. It was urged that same also denotes that investigation was carried out by inferior officer than prescribed under POTA for meaningful purpose. The same has caused grave prejudice to the accused as proper investigation was not effected regarding the explosions occurred and accused have been unnecessarily made scape goat due to lack of

investigation by a competent person.

207.

The reliance placed by learned APP upon the decision in the case

of Kalpnath Rai .vs. State reported in 1998 Cri.L.J. 369 and particularly paragraph nos. 93 and 94 of the said judgment for repelling the said submissions clearly appear to be misplaced. A careful perusal of the

observations made in the said paragraph nos. 93 and 94 reveals that the same pertains to "daily diary" i.e. station diary maintained at the Police Station and production of the same at the trial being neither desirable nor feasible as the same would be impairing the function at the Police Station and in view of the same Apex Court had not given any credence to grievance made for non-

153

conf.5.09

production of the said diary at the trial of Kalpath Rai and others.

The

grievance made on behalf of defence being regarding non-production of case diary and not daily diary/station diary, the said decision would not be useful to the prosecution for meeting the said submission.

208.

The reference to the noting regarding aforesaid aspect is found

made in the notes of evidence on page 2498, the same is to the effect :-

"At this stage the witness requested the court to allow him to refer the dates in respect of the investigation, as he has carried out the investigation in four matters and he does not remember the exact dates. Permission is granted, subject to providing the copy of the note sheet, which the witness wants to refer. Witness produced copy of note sheet. It is t.o.r and marked for Art.X-1 for identification, Copies provided to the otherside." 209. After considering the aforesaid noting it is difficult to find any

substance in the objection raised on the count of PW103 having given the evidence on the basis of note-sheet. It is true that in the event of investigating officer not remembering certain matters, it is permissible in law for him to look in the case diary during the course of recording of his evidence. Needless to add that in such event even the limited use of is permitted as prescribed u/s.172 of the Code. However, it appears that in Mumbai Region, a practice has been evolved over a period of time that Investigating Officers prepare their notes on the basis of entries in the case diary to facilitate them to give evidence without time being wasted in repeatedly going through the diary to refresh their memory. However, in such a contingency the note-

154

conf.5.09

sheet prepared by I.O. is always taken on record for ascertaining whether the same was utilized only for the limited purpose which is permissible in law. The noting prepared in the instant case reveals that not only such a care was taken but copy of the same was also furnished to the defence. Needless to observe that giving of evidence by I.O. is not for testing his memory but altogether for different purpose. Even perusal of the decision pointed reveals that the same is in relation with non-production of station diary and not regarding with the case diary. Both the said diaries being for different purposes the said decision cannot be said to be useful to the defence. Furthermore, except making grievance orally the learned counsel has also not pin-pointed any material revealing that case diary was never brought to the Court as canvassed.

210.

Having regard to the same it is difficult to accept further

submission canvassed that the same also denotes of the investigating officer having not carried out the investigation and hence he had adopted such a recourse or that there was possibility that investigation was carried out by the officers other than prescribed under POTA. Further, nothing is brought to our notice as to when prejudice is caused to the defence. As aforesaid, it has not been pointed to us from the record that the investigation officer was called upon to produce the case diary by the defence or by the Court and he failed to do so. Hence, there is no merit in the ground under consideration.

155

conf.5.09

SANCTION U/S.50 OF PREVENTION OF TERRORISM ACT, 2002

211.

Mr.Kunjuraman, learned counsel for A2 made a grievance that the

order of sanction for taking cognizance of offence allegedly committed under Prevention of Terrorism Act, 2002 (hereinafter referred to as `POTA') by the accused persons (Exhibit-P-573) dated 4.2.2003 was not placed on record practically at the end of the trial. It was urged that the said order of sanction was placed on record on 12.10.2007 during recording of evidence of PW-102/103. He further urged that the said order of sanction or copy thereof was not placed before the Court along with the charge sheet nor a copy of the same was furnished to the accused while furnishing the copies of papers of investigation. The learned counsel therefore doubted the existence of the said order of sanction or claim staked by PW-102/103 about the same by pointing out that the final report of the investigation i.e. charge sheet for four crimes investigated by PW-103 was submitted by him on 5.2.2004 and the sanction order bearing dated 4.2.2003.

212.

In the same context he also invited the attention to the evidence of

Deputy Secretary from Mantralaya Mr.Hirlekar, PW-102 and particularly himself having received the proposal from Chief Investigating Officer PW-103 for granting sanction on 23.1.2004. The learned counsel urged that the order of sanction bearing a date preceding to receipt of the proposal supports the defence submission of there being no fair trial and/or the order

156

conf.5.09

of sanction having not come into existence as claimed by PW-103. The learned counsel also urged that PW-2 only claimed to have signed the sanction. He cannot be equated with the sanctioning authority. It was urged that in view of the same, the so called explanation tried to be given through the evidence of PW-102 that the date was wrongly printed as 4.2.2003 on the said sanction order which was granted on 4.2.2004 cannot be accepted. It was urged that the mistake, if any, as claimed by the prosecution having in reality occurred or otherwise could have been explained only by the authority granting sanction. It was urged that the prosecution having not examined the sanctioning authority or the person competent to accord sanction on behalf of the authority as per the provisions of Section 50 of POTA, the defect apparent on the face of order of sanction thus has remained to be properly explained. The so called explanation of PW-102 will not deserve any credence. It was urged that the same will lead to a situation of there being no proper sanction accorded for taking cognizance of the offences under POTA alleged against the accused. It was urged that the defect being incurable, would vitiate the entire prosecution and/or trial.

213.

The learned APP has rightly repelled the submission canvassed of

order of sanction having come on record only on 12.10.2007 during evidence of Chief Investigating Officer PW-103. She pointed out the order sheet dated 5.2.2005 regarding the order passed by Special Judge upon charge sheet submitted by the Chief Investigating Officer on the said date. Opening lines of the said order are to the effect "Perused the sanction order issued by Home

157

conf.5.09

Department (Special), Mantralaya, Mumbai dated 4.2.2004 to prosecute the accused in this case along with charge sheet filed today by the I.I. Mr.Valishetty, ACP, D-1, DCB, CID, Mumbai alleging offences punishable under POTA, 2002 for various terrorist acts ..........". Without detailing further part of the said order it can be said that by the said order the POTA Special Court has taken cognizance of the offences under POTA and the offences under other enactments for which the said charge sheet was submitted against the accused persons named in the said charge sheet and ordered registration of POTA Special Case No.1 of 2004 and given directions upon all the relevant aspects connected with taking cognizance of the said offences. Needless to add that as pointed out earlier, the opening part of the said order itself reveals that the order of sanction was before the Special Court along with the papers of investigation on the said day i.e. years prior as canvassed by the learned counsel of the same being placed before the Court only in the year 2007 during the course of evidence of PW-102/103. Having regard to the same, the said submission will not at all deserve any consideration.

214.

Now reverting to the next submission canvassed, the learned APP

has rightly pointed out that as per the provisions of Section 50 of POTA Act, previous sanction of the Central Government or as the case may be of the State Government is a prerequisite condition for POTA Court for taking cognizance of the offences under POTA Act. The learned APP thereafter drew our attention to the relevant part of the order of sanction, which runs as under :

158

conf.5.09

"And whereas , in accordance with the provisions of Section 50 of the Prevention of Terrorism Act, 2002 , before a Court takes the cognizance of the said offence , it is necessary for the State Government to accord sanction to the prosecution against the accused persons. Now, therefore, in exercise of powers conferred by Section 50, the Government of Maharashtra hereby accords sanction to the prosecution against the accused persons for the said offence committed by the accused persons for taking cognizance of the offence by the Court of the competent jurisdiction."

Thus, it is rightly urged that the order of sanction is in consonance with the provisions of Section 50 of the POTA Act. By taking us through the entire order, she rightly urged that the material therein clearly reveals that by the said order the sanction was granted as per the provisions of Section 50 of the POTA Act for taking cognizance of the offences described in detail in further part of the body of sanction order i.e. the offences allegedly committed by six accused persons and one deceased accused and eight absconding accused named in the said charge sheet.

215.

A perusal of the relevant part of the evidence of PW-102 reveals

the steps taken by him after receipt of the proposal from the Chief Investigating Officer PW-103. The material part of the same reveals that after discussing with the Chief Investigating Officer and verification of the papers, PW-102 who was then working as Deputy Secretary, Home Department, Government of Maharashtra and who was competent and authorized to sign the order of State Government under the Maharashtra Government's Rules of business, had found that there was prima facie evidence against the accused

159

conf.5.09

persons for according sanction for prosecution under the provisions of Section 50 of the POTA Act. None of the answers elicited during the cross

examination can be said to be affecting the core of the testimony of PW-102that he only processed the file and sanction was accorded by the Chief Minister. Further, he merely signed the order of sanction due to the same being permissible under the Rules of business of Government of Maharashtra. His further evidence also reveals that thereafter he had sent the proposal to Law and Judiciary Department and thereafter the same was forwarded to the office of the Chief Minister. The Chief Minister had accorded sanction for prosecution and they have received the case papers in respect of the said sanction on 3.2.2004. The most material part of his evidence reveals that on 4.2.2004 he had signed the sanction order. He vouched that Exhibit-P-573 shown to him is the same order. He deposed that the date on the said order being wrongly printed as 4.2.2003 i.e. instead of the correct date 4.2.2004.

216.

Now, a perusal of the cross examination of the said witness do not

reveal any significant circumstance being elicited during the cross examination excepting that his statement was not recorded by the Police or file concerning the papers was not demanded by the Investigating Officer. He also admitted that the fact of receipt of the proposal from Mr.Vallishetty was not mentioned in the order of sanction. He also admitted of not remembering whether he had made any noting on the file as to which documents he had received with the proposal. He also deposed of not remembering as to who had issued a letter to the Chief Investigating Officer for a meeting with him

160

conf.5.09

and not remembering whether he had made any noting in the file about his discussion with Mr.Vallishetty. However, he deposed of having made notings four to five days prior to 3.2.2004 upon the file regarding according sanction. He denied the suggestion given to him that he was unable to produce the same because no such file was in existence or that there was no proposal from the Investigating Officer and there was no discussion with the Investigating Officer Mr.Wallishetty. He also denied of having simply signed the sanction order without application of mind. He also expressed inability to produce the said file in the Court.

217.

Thus, considering the evidence of PW-102 as a whole it is difficult

to accept the defence criticism that by adducing his evidence the prosecution could not have explained the defect regarding the date occurring on Exhibit-573. Such a conclusion is obvious as none of the answers obtained during the cross examination are in any manner affecting the claim staked by him that the sanction was accorded by the Chief Minister after he processed the matter after receiving the proposal from the Chief Investigating Officer. The evidence of PW-102 in crystal terms establishes that the sanction was accorded by the Chief Minister and he had merely signed the same as permitted by Government Rules of business. Having regard to the same, the purported defect occurring in Exhibit-573 being not in relation to the matters contained in the sanction order but the same is related only with the date of issuing the same, we fail to understand the necessity of examining the person according the sanction for State of Maharashtra. It is not the case of the

161

conf.5.09

defence that the Chief Minister was not competent to grant sanction contemplated under section 50 of POTA Act on behalf of State of Maharashtra. Similarly, the inability to remember the minor matter as to who had issued the letter to the Investigating Officer or not remembering whether PW-102 had made a noting on the file about discussion with Mr.Valishetty can be said to be affecting the core of his testimony. Similarly considering the answers in the cross examination that all the noting along with the papers were available with PW-102, he had perused the papers in the file prior to adducing the evidence, also repels the defence suggestion that PW-102 was unable to produce said file because same was not existing. The defence having not pursued that aspect regarding non production of the said file during the cross examination, the grievance about the same now made by the learned defence counsel will not deserve any credence.

218.

Accordingly, we are unable to see any substance in the

submission canvassed that the order of sanction was not in existence as claimed or about his contention about existence of sanction as claimed by PW-102. In view of the same, we are unable to accept the criticism that there was any ex-facie defect regarding the matter for which the sanction was accorded or that the same results in there being no proper sanction or that the same has a result of vitiating the prosecution or taking cognizance of the offences under POTA Act for which the accused persons were tried by the Trial Court.

162

conf.5.09

SANCTIONS FOR PROSECUTION FOR OFFENCES UNDER Explosive Substances Act, 1908 and The Explosive Act, 1884.

219.

The learned APP assailed the reasoning given and conclusion

arrived in paragraph no.287 of the Judgment under consideration by the trial Court that sanction Exh.P-565 (colly.) accorded by PW 100 Dr. Pradeep Vyas working as a District Magistrate for Mumbai City District upon the proposal of Investigating Officer for according sanction for prosecution of the accused for offences under The Explosive Substances Act, 1908, being not valid and legal. The learned APP urged that the fact of such a sanction/consent being accorded by PW 100 has been duly established by his evidence. She urged that observation made by the trial Court that the said sanction order is silent regarding penal provisions of The Explosive Substances Act, 1908, for which the said sanction is accorded and thus the offences for which the prosecution is to be launched having been not mentioned in the said order, the same reveals non-application of mind on part of sanctioning authority. That is contrary to the record. In the same context, the page nos.2421 and 2424, and particularly matter stated in the column no.3 of the table given on the said page numbers, do reveal the Sections of offences under The Explosive Substances Act, 1908, mentioned therein i.e. the offences for which the crime was registered against the concerned accused and for which the sanction was sought. In view of the same, the same submission canvassed on part of learned APP cannot be said to be devoid of any merit.

163

conf.5.09

220.

In the same context, the learned APP, by making reference to the

provisions of Section 7 of The Explosive Substances Act, 1908, and so also to paragraph no.28 of the decision of the Apex Court in the case of State of T.N. Versus Sivarasan Alias Raghu Alias Sivarasa, reported in 1997 Supreme Court Cases (Cri) 362, to the effect,
"28. With respect to the finding regarding sanction we are of the opinion that the learned Sessions Judge was not right in treating it as not legal and valid. Section 7 does not require a sanction but only consent for prosecuting a person for an offence under the Explosive Substances Act. The object of using the word "consent" instead of "sanction" in Section 7 is to have a purely subjective appreciation of the matter before giving the necessary consent. To prove the consent the prosecution had examined PW 52 Balachandran who was then acting as the PA of the District Collector. He has deposed about the requisition sent by the investigating officer and the reports and other documents sent along with it and consideration of the same by the District Collector before giving his consent. In his cross-examination he stated that he had not noticed in the relevant file statements of witnesses. Relying upon this answer given by the witness the learned Sessions Judge held that in absence of such statements the District Collector cannot be said to have applied his mind properly to the facts of the case before granting sanction. From the evidence of the witnesses and the copy of the proceedings of the Collector it appears that the Inspector of Police had sent his report regarding the evidence collected by him together with a copy of the FIR, the reports of the Forensic Department and other connected record. Thus, the Mahazars under which the "explosive substances" recovered and seized by the police from different accused were placed before the Collector and on consideration of all that material the Collector had given his consent. We do not think that for obtaining consent of the Collector for prosecuting the accused for the offence punishable under the Explosive Substances Act it was necessary for the investigating officer to submit the statements of witnesses also, who had deposed about the movements of the accused and their activity of manufacturing bombs and grenades. We, therefore, hold that the consent given by the Collector was quite legal and valid." (Emphasis supplied)

164

conf.5.09

has rightly urged that as per the provisions of Section 7, only the 'consent' for prosecution being necessary and not the 'sanction'; and both the said things being different and the evidence of PW 100 having established that he had formed subjective satisfaction for granting consent for prosecution of

accused persons mentioned in first column of the table given in the sanction order, for the offences mentioned in the third column of the same table, the trial Court manifestly erred in coming to the conclusion of Exh.P-565 (colly.) being not valid and legal.

221.

Thus considering evidence of PW 100 and particularly matter

stated by him in paragraph no.3 of his deposition and so also the limited aspect upon which he was cross-examined on behalf of the defence, it is difficult to accept that his claim of having accorded consent/sanction has been shattered in any manner. The learned defence Counsel tried to urge that they were deprived to see the original file pertaining to the sanction for crossexamining the said witness and so also PW 101 upon the similar point regarding the other sanctions examined by the prosecution. It was urged as such due opportunity being denied to them, the evidence of both the said witnesses and so also the sanctions purported to have granted by them would be without any credence and as such would be liable to be discarded. The deposition of the said witnesses and particularly that of PW 101 clearly reveals that such a grievance made by learned Counsel for the accused was rejected by the trial Court on the count of their failure to show the provisions entitling them to see such original file pertaining to sanction. The learned

165

conf.5.09

defence Counsel even failed to point out such a provision to us, we do not find any fault with the said rejection made by the trial Court. The learned defence Counsel has also tried to canvass that such a file pertaining to the sanction was shown to the defence Counsel in a case pertaining to the attack made on the Parliament. Even perusal of the relevant paragraphs from the same reveals such a concession then being made by the prosecution, we find it difficult to accept the proposition canvassed by pointing out the said decision and particularly the learned SPP having objected showing of such a file on the count of same containing other confidential matters.

222.

Mr.Pasbola, learned counsel for the accused by drawing

attention to the order of sanction Exhibit-P-569 colly urged that as a matter of fact, the table given in the said order does not reveal mentioning of the offences under the Explosive Substances Act 1908 in the column no.3 of the said table and as such, the same cannot be construed as a sanction accorded for prosecution of offences under the said Act. He further urged that since there is no section 9 in

Explosives Substances Act, mentioning of the said section in the body of order also reveals non application of mind and as such, the prosecution conducted for commission of said offences is without according of valid consent for prosecution of such offences.

166

conf.5.09

223.

After considering the evidence of PW no.101 and the matters

in the said section, we are unable to accept the said criticism. ExhibitP.569 colly being the consent accorded for prosecution of the offences under Explosives Substances Act, the same will be required to be read as a whole and no conclusion as tried to be canvassed on the basis of such offences being not mentioned in column no.3 of table can be drawn. As a matter of fact, considering the said order as a whole and particularly the matters mentioned in paragraph no.3 of the same, it is clear that by the same PW 101 accorded consent for prosecution of offences under section 3, 4 of Explosives Substances Act. Though it is true that in the said paragraph, there is mention of section 9 of Explosives Substances Act but in reality the said Act being confined to only seven sections, mentioning of such section in the said paragraph clearly appears to be superfluous due to typographical/clerical mistake gone unnoticed by the sanctioning authority. Apart from the same,

considering the said orders in entirety, the same makes abundantly clear of sanctioning authority being satisfied and accorded the consent for prosecution of offences committed by the accused persons by the acts mentioned in column no.5 of table given in the said order. The matters stated in the said column no.5 r/w paragraph no.3 of order clearly denotes sanctioning authority being satisfied with involvement of concerned accused in commission of offences mentioned in

167

conf.5.09

paragraph no.4 of the said order. Hence, merely because sections of the relevant offences are not mentioned in column no.3 of the table would be no ground to discard the said sanction.

224.

In the premises aforesaid, the submission of learned SPP of the

trial Court having erroneously discarded sanction Exh.P-565 (colly.) will deserve credence and as such the said finding arrived by the trial Court will be required to be set aside.

Trial being conducted and completed by Judges appointed after POTA was repealed

225.

Mr. Pasbola and Mr. Wahab Khan, learned counsel respectively

for A3 and A1 also urged that the present trial was conducted and completed by the Judges who were appointed after POTA after the Repeal Act No.26 of 2004. Section 2 of the said Act provides for the matters saved after It was urged that out of five sub-

coming into force of the Repeal Act.

sections of said Section 2 , sub-section (3), (4) and (5) relate to the matters pertaining to the review of POTA cases and do not relate to the matters pertaining to the trial. It was urged that savings for such a matter are found in sub-section (2) of Section 2 of Repealing Act. It was urged that the said matters do not save and/or permit appointing a Special Judge for conducting trial for pending/unfinished POTA offences of which the cognizance was taken by the POTA Court.

168

conf.5.09

226.

In the present case, the cognizance of offences under POTA was and the charge was

taken by the POTA Court on 5th of February, 2004;

framed on 29th June, 2004 admittedly before coming into the force of the Repeal Act 26 of 2004 - which came into force w.e.f. 21st December, 2004. The trial was then continued by the Judges who were appointed lateron after the repeal i.e. the learned Special Judge Smt. Swapna Joshi appointed since 5th July, 2006 and thereafter by learned Special Judge Shri M.R. Puranik who delivered the judgment under consideration in confirmation proceedings; appointed since 27th December, 2006. It was urged that the subsequent appointments were not contemplated and/or provided under the provisions of Act No.26 of 2004 nor provision for making such appointment under POTA being saved under saving clause, the appointments made would be without authority of law. Hence, the continuation of the trial after coming into force of the Repeal Act was ultra vires and nullity. It was urged that count alone, the judgment under consideration is liable to be quashed and set aside.

227.

The aforesaid submissions were countered by learned APP. She

contends that appointments of the successor Judge was covered under the savings under Section 2 (2) of the Repeal Act. The learned APP by inviting our attention to the relevant Notifications dated 5th July, 2006 and 27th December, 2006, respectively, appointing learned Special Judges Smt. Swapna Joshi and Shri M.R. Puranik, contended that by the said

Notifications no fresh appointments of Special Judge was effected. But, only

169

conf.5.09

the existing post of Special Court was filled up by the concenred Judges to replace the outgoing Judges. It was urged that control over subordinate Courts being vested with the High Court and such a replacement in the nature of transfer of Judge from one Criminal Court to another Criminal Court being permissible under the said power regarding posting and promotion etc. vested by virtue of Article 235 of the Constitution , no fault can be found with the said Notifications issued by the Government with the concurrence of the Chief Justice and the Judges of the High Court. It was urged that because of repeal of POTA, it can neither be said that there was no power with the Government/High Court to appoint a Judge upon the Special Court

continued due to the saving clause nor it can be said that such appointee will not have power to continue and complete the said trial.

228.

For appreciating the aforesaid submissions, it will be necessary to

take into consideration the provisions contained in Section 2 (2) of Repealing Act which is as under: "2. Repeal of Act 15 of 2002 and saving---(1) ................ (2) The repeal of the principal Act shall not affect-----(a) the previous operation of, or anything duly done or suffered under the principal Act, or (b) any right, privilege or obligation or liability acquired, accrued or incurred under the principal Act, or (c) any penalty, forfeiture or punishment incurred in

170

conf.5.09

respect of any offence under the principal Act, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and, any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the principal Act had not been repealed: Provided that notwithstanding anything contained in this sub-section or in any other law for the time being in force, no Court shall take cognizance of an offence under the principal Act after the expiry of the period of one year from the commencement of this Act." 229. Now reference to the Notification dated 19th July, 2002, to which

our attention was invited by learned APP, it reveals that, the same was issued in exercise of powers conferred under Section 23 (1) (4) of POTA, by the Government of Maharashtra in consultation with the Chief Justice of High Court of Judicature at Bombay. That notification specified (a) City Civil and Sessions Court, Greater Bombay as a Special Court for the area of Greater Bombay for the purposes of POTA and (b) appointed Shri A.P. Bhangale, Judge, City Civil Court and Additional Sessions Judge, Greater Bombay as a Judge to preside over the said Special Court. Thus, the said Notification reveals establishment of Special Court for the purposes of POTA and the Judge from City Civil Court and Sessions Court, Greater Bombay was appointed to preside over the same.

230.

Now considering provisions of 2 (2) (a) of the Repeal Act, it is

abundantly clear that creation of Special Court by the said Notification for the

171

conf.5.09

area of Greater Bombay would be saved by virtue of the said provision in spite of repeal of POTA. In the instant case, said Special Court having taken cognizance of the offences under POTA and the other offences committed on 5th February, 2004 upon the charge sheet submitted by PW103 Chief I.O. i.e. much prior to the repeal of POTA and furthermore having ordered

registration of POTA Special Case No. 1 of 2004 and furthermore trial in the said case having commenced thereafter i.e. when the said case was opened and/or charges were framed in the said case i.e. on 29th June, 2004 , the said legal proceedings would be again saved by virtue of the provisions of Section 2 (2) (d) of Repeal Act.

231.

Now considering the provisions of Repeal Act and particularly

provisions made therein for the matters which were saved, the same nowhere prescribes that such a pending POTA trial is required to be completed by the Presiding Officer presiding over the Special Court in which such a case was pending on the date of repeal of POTA. Even accepting that the provisions of the appointment of a Special Judge conferred by virtue of the provisions of Section 23 (4) of POTA would not be available after 21st December, 2004 due to repeal of POTA, still the High Court would be fully competent in posting another Presiding Officer of the equivalent qualification as

prescribed under POTA for completion of such trial and making of such a posting can never be said to be improper, illegal or de hors the power to make such a posting. 232. Now in the context of the submission canvassed by learned

172

conf.5.09

defence counsel

that further Notification

pointed out by learned APP

regarding the appointments of Smt. Swapna Joshi and Shri M.R. Puranik makes reference to the provisions of Section 23 (4) of POTA or that the said Notification contains the word "appointed" rather than "posting" and as such the same cannot be termed as posting and will be required to be construed as appointments made without there existing requisite power due to repeal of POTA clearly appears to be devoid of any merit. In the same context

considering the provisions of appointment as contained under Section 23 of POTA though the same stipulates the word "appointment" in reality the same is not a fresh appointment but posting of already functioning Judge with necessary qualification as envisaged under POTA to act as a Presiding Officer for the Special Court. Similarly while construing the nature of any Notification, the same is required to be considered in the entirety and no conclusion can be drawn regarding its validaty or invalidity on the basis of

truncated portion thereof. Thus, considering the notification dated 5th July, 2006 and 27th December, 2006 appointing respective Judges as Presiding Officer for Special POTA Court, it is abundantly clear that none of these notifications were intending to make fresh appointment, but was for

replacing the outgoing presiding officer. Thus, in true sense, the effect and nature of the said appointments were in the nature of making posting of Judges over the said Court. Accordingly, we do not find any merit in

grievance made of trial being continued and completed by Judges not empowered for same.

173

conf.5.09

Grievance regarding lack of sanction u/s 188 of Code.

233.

Mr. Wahab Khan, learned counsel by making reference to the

provisions of Section 188 of the Code urged that as per the said provisions the POTA Court could not have proceeded with the trial without there being previous sanction of Central Government section. The said provision runs as under: "188. Offence committed outside IndiaWhen an offence is committed outside India(a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government." The learned counsel urged that admittedly it is the prosecution case that the offence of conspiracy to commit the bomb blast in Mumbai was hatched in Dubai, a place outside India. It was urged that prosecution has not placed any sanction accorded by Central Government under the provisions of Section 188 of the Code of Criminal Procedure. He urged that proceedings with trial for a charge of conspiracy which was hatched in Dubai without such a sanction has resulted in vitiating the entire trial. He further urged that merely because the execution of the plan was chalked out in Mumbai would not absolve from obtaining such a sanction. The learned counsel in support as prescribed under the said

174

conf.5.09

of this proposition also placed reliance upon the decision in the case of Ajay Agrawal vs. Union of India reported in AIR 1993 SC 1637.

234.

The learned APP repelled the said submissions by pointing out

the reasons given by the trial Court in paragraph nos.294 and 295 and by submitting that no fault can be found with the said reasoning. The learned APP by inviting attention to the charge framed at the trial further urged that it is for the acts committed by the accused persons within India and not for any of the act committed by them in Dubai and as such there was no necessity for obtaining the sanction under Section 188 of Cr.P.C. She urged that there was no defect much less any defect having effect of vitiating the trial.

235.

After carefully considering the charge framed at the trial, we find

substance in the submission canvassed by learned APP. It is noticed that the charge is primarily framed for the acts committed by the accused persons within India and not for any of the act committed by them outside India. Though it is true that there is reference in the charge firstly - regarding A1 who was member of Lashkar-E-Toiba and Muslim Revenge Force had been to India from Dubai to cause bomb explosion in India with the help of A2 and A3 etc., still careful perusal of the said charge does not reveal any of the accused being charged or in fact tried for acts committed outside India. Besides, considering the matters stated in the evidence of PW2 and so also the confessions of A1, A2 and A3 , it is apparent that conspiracy hatched at Dubai was for committing terrorists acts within India and the further

175

conf.5.09

conspiracy within the same was to cause terrorists acts at Mumbai and the same was hatched at the house of A1 at Mumbai. This dispels the argument under consideration. For, the Accused have not been tried for any of the offences committed outside India or for the offences requiring the sanction of Central Government as prescribed by Section 188 of the Code. We, therefore, uphold the view of the Special Court on this issue.

Arrest of A1, A2 & A3 and Recovery of contraband articles from or at the behest of A1 & A2.

236.

The prosecution case regarding arrest of A1, A2 and A3 and

the events occurred thereafter i.e. memorandum/discovery and seizures effected, being already narrated in detail earlier in paragraph nos.18 to 25, the same is not unnecessarily reproduced. The same, amongst other, reveals that out of them A2 was firstly apprehended by the police after receipt of secret information, nearby his house at about 15.30 hours on 31st August 2003 and thereafter he was brought to the office of DCB CID Unit XI at Andheri and after interrogation, after his involvement was confirmed in the crime in question, he was arrested on 31st August 2003 at 2020 hours by PSI Todarmal (PW 51) and after occurrence of the events as stated therein, A2 had led panchas and police to the house of A1 and A3 at Salim Chawl, Room No.D/7, Chimatpada, Marol, Andheri (East), Mumbai and at the said place, they were arrested along with their daughter Farhin.

176

conf.5.09

237.

In order to prove all the said events, and particularly the

arrest of the said 3 accused being effected on such date, time and place and/or seizures being effected at the behest of A2 and A1, the prosecution has relied upon ocular evidence of PSI Vankoti (PW 97), PSI Talekar (PW 98), PSI Todarmal (PW 51), panch Mukund (PW 50), panch Sunil Bhatia (PW 53), PSI Vijay Kandalgaonkar (PW 99) and documentary evidence in the shape of personal search, panchanama (Ex.P.385), panchanama (Ex.P.393) and Ex.P.393A), panchanamas (Ex.P.394) & (Ex.P.394A), panchanamas (Ex.P.395 and Ex.P.395A) The trial Court has dealt with the said evidence and so also the defence submissions regarding the same and so also defence contention of said accused being not arrested on the dates claimed by the prosecution and being arrested much prior to the same and the evidence adduced by the defence either for supporting the said contention and/or for repelling the prosecution contention, in paragraph nos.82 to 103 of the Judgment under consideration. For the reasons recorded therein, the trial Court did not find any substance in the said submission canvassed; and instead held that the prosecution established the factum of arrest of the accused and also the seizure of contraband articles being effected at the behest of the said accused as claimed by the prosecution. Identical submissions were advanced before us.

177

conf.5.09

238.

The reference to the evidence of

PSI Vankoti (PW 97)

reveals that while he was attached with DCB CID Unit No.IX in the year 2003, A2 was apprehended by the officers of unit No. XI at Juned Nagar, Juhu Galli at about 4.00 p.m. on 31st August 2003 and

thereafter A2 was taken in the office of unit No. XI at Kandivali. It reveals that preliminary inquiry made with A2 revealed that he was involved in the BEST bus bomb blast at Ghatkopar (DCB CID C.R. No. 75 of 2003) and hence on the same day he was arrested in connection with said crime at about 20.20 hrs. by preparing panchnama Exh. P-385. The evidence of PSI Shri Pramod Todarmal (PW-51) and panch witness Mukund Ingrulkar (PW-50) reveals that during the personal search of A2, in all 12 articles were found on his person amongst other i.e. visiting card of Noor Electricals (Art. 12H) owned by Shri S. M. Hanif (A-1) and A. B. Shaikh significantly with mobile numbers of Nasir i. e. 9892077831 & 9892451164 and land-line number 28527761 of A1 Hanif mentioned on the overleaf of said cards; one chit i. e. Art.12/G with the e-mail address of co-accused Jahid Patne (PW 2) recorded on it. It further reveals that PW-50 Mukund Ingrulkar had identified A2 as being the accused in whose personal search said 12 articles i. e. Art. 12/A to 12/L were found and seized by the police under panchanama Exh. P-385. The said

178

conf.5.09

panchanama also contains endorsement of A2 at the bottom of the panchanama of having received the copy of the same.

239.

The evidence of panch PW-53 Sunil Bhatia reveals that in

his presence A2 had expressed willingness to police officers of Kandivali Unit to point out the place where he had concealed remaining material of the bombs and same (Exh.P-393) was recorded by PSI Vankoti in writing at about 21.05 hrs on 31st August 2003. The evidence of PW 53 further reveals that A2 had, thereafter, led police and panchas by Gypsy vehicle towards his house on the first floor of a chawl situated at a distance of 50 meters in Juned Nagar, Juhu Galli, Andheri (West), Mumbai and door of the same was opened by mother of A2 Smt. Kamrunissa. It further reveals that thereafter A2 had taken out one tin box kept below the cot of his bed-room and after opening said tin box was found containing 30 gelatin sticks (Art-13), 3 alarm clocks (Art. 14 Colly.) and 8 detonators and sample of each of the said article was taken and the articles were separately packed in plastic paper and labels were affixed upon them and same were seized under panchanama Exh. P-393/A under the signatures of PSI Vankoti, panchas and A2. The said panchanama/seizure memo shows that it was concluded at 22.40 hrs. on 31st August 2003. It also reveals that PW 53 had duly identified the said articles shown to him during course

179

conf.5.09

of recording of his evidence.

240.

The evidence of PW 53 and PW 98 PSI Suryakant Talekar

reveal that in presence of PW 53, A2 disclosed the police officers willingness to point out the place at which the bombs were prepared and memorandum statement Exh.P-394 to such effect was prepared by PSI Talekar bearing his signature, signature of both the panch witnesses and signature of A2. Exh.394 reveals that it was concluded at 23.50 hrs. on 31st August 2003.

241.

Both the above witnesses have deposed that the Police had

called Gypsy vehicle and A2 had thereafter led panchas and police towards Andheri-Kurla Road, Marol Naka and thereafter A2 had asked to take the police vehicle towards Chimat Pada and as per direction of A2, vehicle was halted near Ashiyana Bungalow at which place A2, panchas and police alighted the vehicle and started proceeding towards Salim Chawl situate at Chimat Pada near Maheshwari Hotel. A2 had thereafter led panchas and police towards room No.D-7 at Salim Chawl and the door of the room was opened by A1 Hanif. They have further deposed that A3 Fehmida and her two daughters Farheen (15) and Sakira (5) were also found present in the room. It reveals that A1 had told that Fehmida was his wife. They have also deposed that PW-98

180

conf.5.09

PSI Talekar had thereafter taken search of the house of A1 and A3 and during search of cupboard, nine documents consisting passport of A1 and his family members, identity and visiting cards with some bearing name and numbers recorded overleaf were found. It reveals that one of the visiting cards was bearing the name of Nasir and his mobile number as 9892451164. One more visiting card was pertaining to Noor Electricals owned by A1 and the mobile number of Nasir was found mentioned as 9892077831 on the overleaf of the same card.

242.

Evidence of panch witnesses PW-53 Sunil Bhatia and PSI

Suryakant Talekar (PW-98) reveal that A2 had pointed out the loft in the house of A1 having one water tank and one gunny bag besides said tank. It reveals that upon opening said bag, same was found containing 125 aluminum clips, clipper machine of Super Eagle Co., One bundle of white polyester filament yarn role, one tightening machine, one soldering machine with plug and wire attached to it, role of soldering wire, 9 alarm clocks and 16 fire crackers of red colour. It reveals that said articles were kept in a small cardboard box and labels were affixed thereon. It further reveals that another carton box found on same loft on opening was found containing 12 detonators packed therein. It reveals that one of the detonators was taken out as sample and 11 detonators were wrapped in cotton and those were kept in a small

181

conf.5.09

carton box. It further reveals that all said articles were seized under panchanama Exh. P-394/A under signatures of PSI Talekar, panchas and the signatures of A1 & A2 and panchanama was concluded at 2.35 hrs. on 1st September 2003. The evidence of PW-53 reveals that he had identified all the above articles which came to be seized from the house of A1. All the above muddemal articles are duly packed, labeled and sealed.

243.

PSI Talekar (PW-98), PSI Vijay Kandalgaonkar (PW-99)

and panch witness Sunil Bhatia (PW-53) deposed that A1 had shown willingness to point out the place where he had concealed some gelatin sticks and thereafter led the panchas and police towards room No. 14, Salim Chawl, which was locked. It reveals that A1 had opened the room and taken out a yellow colour gunny bag kept below the cot and same was found containing 58 gelatin sticks on which description Noble-gel 80 NECL-Hingani Wardha were found printed. It reveals that out of the same, one stick was taken as sample and others were seized under panchanama Exh. P-395/A under the signature of PSI Kandalgaonkar, panchas and of A1. Exh.P-395/A reveals that the

same was concluded at 7.50 hrs. on 1st September 2003.

244.

Advocate Shri Kunjuraman for A2 urged that arrest

182

conf.5.09

panchanama of A2 i.e. Exh.P-385 is totally fabricated and concocted document. He urged that as per the evidence of PSI Jitendra Vankoti (PW-97) A2 was brought from Juned Nagar, Juhu Galli to the office of crime branch at 4.00 p.m. on 31st August 2003 and was thereafter interrogated and was arrested at 8.20 p.m. on said day. He urged that PW 97 stated in cross-examination that no panchanama of any kind was prepared when A2 was picked up from Juned Nagar. Adv. Kunjuraman has invited attention to the evidence given by Chief IO Shri Walishetty (PW-103) that A2 was arrested at Andheri whereas it is the evidence of police officers PSI Vankoti (PW-97) and PSI Talekar (PW-98) that the A2 was arrested inside the Kandivali Crime Branch Unit. It was thus urged that there is confusion regarding the arrest of A2.

245.

The learned Counsel thereafter invited attention to news item

published in Times of India on 2nd September 2003 (Exh. D-76) to the effect that A2 was arrested on Saturday morning and he was interrogated in the evening. He urged that India Today Magazine (Exh. D-77) reported that on the afternoon of August 30, police officer Shri Maria and his team had arrested A2 in Juhu. The learned Counsel pointed that in Exh. D-77, date of arrest of A2 is mentioned as 30th August while the arrest panchanama Exh. P-385 records the same as

183

conf.5.09

31st August 2003. 246. The learned APP repelled the said submissions by urging

that no reliance can be placed upon unauthenticated matters stated in the newspaper items. She urged that hardly any steps were taken for establishing authenticity of the matters stated in the news items and/or the truthfulness of the same. She urged that as such there is no

discrepancy regarding the date of arrest arrest of A2. She also placed reliance upon the decision in the case of Laxmi Raj Shetty Versus state of Tamil Nadu, AIR 1988 SC 1274. and particularly matters stated therein by the Apex Court in paragraph no. 25 to the effect : We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in newspaper is only hearsay evidence. A news paper is not one of the documents referred to in S. 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under section 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein. 247. In the same context, perusal of the evidence of PW-97 PSI

Vankoti who had arrested A2 reveals that during the crossexamination, he stated that A2 was brought from Juned Nagar, Juhu Galli at 4.00 p.m. on 31st August 2003 and for the purpose of interrogation, he was taken to the office of Unit-XI of Kandivali and after interrogation A2 was arrested at 8.20 p.m. It is not in dispute that

184

conf.5.09

house of A2 was then situated at the Juned Nagar, C.D. Barfiwala Road, Andheri (West), Mumbai-58. Thus it is abundantly clear that A2 was apprehended by the officers of Unit-XI nearby his house and for the purpose of interrogation he was taken in the office of Unit- XI. In view of the same, it is difficult to perceive that then it was necessary for the said officers to draw any panchanama, much less arrest panchanama of a person who was then not arrested by them. Needless to add that aforesaid evidence has revealed that only after interrogation having confirmed about his involvement in the offences of bomb blasts, he was formally arrested at 8.20 p.m. by preparing requisite arrest memo and thereafter his personal search was conducted and the articles found in his possession were taken in possession under panchanama Exh. P-385. Though it was suggested in the crossexamination of PW-98 PSI Talekar that the then Commissioner of Police and the then Home Minister held press conference on 1st September 2003 and in that press conference it was reported to the media that A2 was arrested on 30th August 2003 and A1 and A3 were arrested on 31st August 2003 at early hours of morning, all the said suggestions were duly denied by PSI Talekar. Needless to add that suggestions denied being not a piece of evidence and no admission elicited from any of the witnesses supporting the said suggestions being brought to our notice, it is difficult to give any credence to such

185

conf.5.09

suggestions given. Even the case regarding the matters stated in the news item also cannot be given any importance without authenticity of the arrest being effected on such a date, being established, or at least such a fact being reported to the newspaper by the persons concerned with the said arrest or even regarding apprehending A2 prior to 4.00 p.m. on 31st August 2003 being established on the record.

248.

So far as the arrest of A1 and A3 is concerned, it is

submitted by their Counsels Adv. Wahab Khan and Adv.Pasbola that since it is the prosecution case that A1 and A3 were arrested on 1st September 2003, there was no reason for the then Commissioner of Police Shri R. S. Sharma and the then Dy. Chief Minister Shri Chagan Bhujbal to give a press briefing to the media about the date of arrest of Accused Nos. 1 and 3 on 31st August 2003. The said media reporting is brought on record by the defence. Exh. D-76 is the news item published in Times of India on 2nd September 2003 in the caption of Police confirmed active role of woman in blast. Now perusal of the said news item reveals the same being silent regarding the date of arrest of A1 and A3 as tried to be canvassed by learned defence Counsel.

249.

In the same context, considering the evidence in defence led

186

conf.5.09

by A1 i.e. examining himself as DW-4, the same reveals of A1 having claimed that he had returned home at 7.00 p.m. on 30-9-2003. He further claimed that when along with his family members, he was about to take dinner, 20 to 25 policemen had entered his house at 8.00 p.m. and had expressed desire to take house search. He claims that thereafter the police had taken passport, bank passbook and other documents along with one album of photographs and nothing else was seized. He further claimed that A1 and his family members were taken to crime branch office at Andheri. He deposed that he was taken to Bhabha Hospital on 1st September 2003 as his blood pressure had shot up and after receiving discharge from the hospital he was produced before the Special Court and he was remanded to police custody for 14 days. In the cross-examination A1 stated that he was not aware of

date of his arrest when he was produced before the POTA Court on 2nd September 2003. He has denied the suggestion of the Special P.P. that he was arrested by police on 1st September 2003. Thus considering the evidence of A1 in proper perceptive, it is difficult to digest his stand that he was not aware of date of his arrest when he was produced before POTA Court. Needless to add that such evidence is apparently given by him to support the afterthought stand taken at the trial of having not been arrested on 1st September 2003 but was arrested prior to the same.

187

conf.5.09

250.

In the same context, the evidence of another defence witness

Shri R. S. Sharma (DW 5) reveals that he was serving as the Commissioner of Police of Mumbai during the period from 31st December 2002 till 14th November 2003. He deposed that he had occasion to release the press note on 1-9-2003 and the press conference was attended by him and Home Minister Shri Chagan Bhujbal and Jt. C.P. (Crime). Press note was circulated in that conference and the queries raised in the press conference were replied by him and Exh. D-76 is a news paper report pertaining to the above press note. Significantly enough, after going through the news item Exh. D-76 he stated that he is unable to say whether the contents of the news item depict the correct events. It has also come in the evidence of DW-5 Shri R. S. Sharma that press note dtd. 1st September 2003 Exh. D-107 is signed by IO Shri Walishetty. After going through Exh. D-107 it was stated by DW-5 that he is unable to state the exact date on which A1 and A3 were arrested.

251.

Furthermore, during the cross-examination, Shri R. S.

Sharma (DW-5) answered that he had confirmed from the documents that one of the Accused person was arrested on 31st August 2003 and rest of the Accused persons were arrested on the next day. Similarly,

188

conf.5.09

another defence witness DW-6, the then Home Minister Shri Chagan Bhujbal, also stated that in the press conference it was revealed that four Accused persons were arrested in bomb blast cases, out of them one was arrested on earlier day evening and remaining three were arrested on the same day early in the morning i. e. on 1st September 2003. Thus, we find that as rightly observed by the trial Court neither news items Exh. D-76 and Exh. D-107 nor the evidence of R. S. Sharma (DW-5) and Shri Chhagan Bhujbal (DW-6) support the defence of A1 and A3 that they were arrested on 31st August 2003.

252.

The perusal of first remand application Exh. D-81 (R. A. 35

of 2003) to which our attention was drawn by learned APP supports her submission that, A2, A3 and her daughter Ms. Farheen were produced before Special Court on 1st September 2003 and in the remand application A2 was shown arrested at 20.20 hrs. on 31st August 2003 and A1 and his wife A3 Fehmida were shown arrested on 1 st September 2003 at 03.00 hours. Similarly, the remand order passed by the POTA Court, on the said day to which also our attention was drawn also supports her submission that as per the said order A2 had admitted before the Court that he was arrested yesterday morning i. e. on 31st August 2003 and A3 Fehmida and her daughter Farheen have submitted before the Court that they were arrested on the morning of

189

conf.5.09

1st September 2003.

Needless to add that the said matters,

apart from supporting prosecution case of A2 being arrested on 31st August 2003 and A1 and A3 were arrested on the next day i.e. on 1st September 2003 also reveals that an afterthought stand was later on taken by the said accused for creating camouflage of themselves being not arrested on the dates as claimed by the prosecution and they were arrested even prior to the said dates and illegally detained.

253.

In the premises aforesaid, it can be safely said that at trial,

prosecution had duly established of A2 being arrested on 31st August 2003 and A1 & A3 being arrested on 1st September 2003 and as such, there being no confusion regarding the dates of the arrest of the said accused. Needless to add that the defence has also failed to establish the contention of the said accused being arrested much prior to the dates than the dates as claimed by the prosecution.

254.

In addition to the aforesaid, the said evidence also

establishes nexus and/or inter se connection on mobile phone/phone or even otherwise then existing in between A1 and encountered accused Nasir and Jahid Patne, Approver (PW 2). Similarly, the same and particularly the articles seized either from person or the residence of the said accused also establishes nexus of A2 with gelatin and the other

190

conf.5.09

articles such as alarm clock, detonator i.e. with the material of which nature was used for preparing crude bomb for causing explosion at M.I.D.C., Seepz on 2nd December, 2002 and BEST bus at Ghatkopar on 28th July, 2003.

255.

Now with regard to prosecution evidence regarding earlier

referred discovery and seizure allegedly made as a sequel to the statement made by A2 on two different occasions i.e. firstly statement made and recorded under memorandum panchanama Exh. P393 concluded by 21.05 hours and discovery and seizure panchanama Exh. P393-A concluded by 20.40 hours both drawn by PW97 PSI Wankoti and secondly statement made and recorded under memorandum panchanama Exh. P394 concluded by 23.40 hours and discovery and seizure panchanama Exh. P394-A concluded by 02.35 hours on 1.9.2003 drawn by PW 98 PSI Talekar; the learned defence counsel urged that taking into account the said features and the relevant evidence the same clearly appears to be artificial. It is was urged that the evidence pertaining to first memorandum and discovery panchanama reveals that A2 is then alleged to have made a statement regarding the remaining material from the material used for preparing the bomb and the place of concealment about the same and, thereafter, allegedly having led the panchas and police to his house at Junad Gali

191

conf.5.09

Junad Nagar Zopadpatti and alleged to have taken out the tin bags containing contraband material i.e. 30 geletine sticks, 3 alarm watches and 8 detonators. It is was urged that the evidence pertaining to 2nd memorandum and discovery panchanama reveals that A2 during the interrogation thereafter is alleged to have made a statement regarding showing of place at which he had prepared bomb along with his companions which was planted in BEST bus on 2nd December, 2002 and 28th July, 2003 and, thereafter, allegedly having led the panchas and police to the house of A1 at Chimatpada Marol Andheri and from the said house the police has seized the material and so also the contraband materials from the loft as detailed in panchanama Exh. P394-A.

256.

The learned defence counsel assailed the aforesaid evidence

by urging that it depicts an absurd position that the accused who was willing to make the statement regarding the bombs prepared or the material used for the same or the place at which the same were prepared, had made the statement on two occasions. According to the defence, the natural course is that the accused would disclose all matters on the first occasion itself. It was urged that the accused making such a statement on two occasions and again before two different officers militates against the fact that A2, in reality, must

192

conf.5.09

have made such a statement. It was urged that artificialness of the said evidence is further exposed by ill-logical claim of contraband material being kept at two different places. It was contended that the same also denotes that though same set of panch witnesses were used for all the said four panchanamas, the second panchanama i.e Exh. P394 drawn by other officer, i.e. PW 98, recites that officer had asked for bringing panchas. It was urged that in order to cover the said lacunae the explanation is advanced through the panch witnesses that he had returned to the police station due to having forgotten his mobile phone. It was urged that in reality if such event had occurred then the same would have been found recorded in Exh. P394. It was urged that considering all these aspects it is apparent that in order to justify artificial claim of contraband material having been recovered as a sequel to the statement, leading to the discovery, made by A2, from his house and so also from the house of A1. It was urged that in event of the loft in the house of A1 was used for preparation of bombs then the culprits would have chosen to keep the remaining material at the said place only without incurring any risk to shift the same to other place i.e. to the house of A1 or even in the event of themselves having found that loft in the house of A1 for some reason was not suitable to keep the remaining material then they would have shifted the same to another place. It was urged that thus on preponderance of probability

193

conf.5.09

culprits choosing two places for keeping the material clearly appears to be improbable.

257.

In the same context it was further urged that the evidence

and particularly panchanama Exh. P393 reveals that Kamarunnisa mother, Tabassium and Nagma, sister of A2 were present in the said house when allegedly A2 had led panchas and police to the said place. It was urged that in view of the same it was incumbent upon the prosecution to lead the evidence of the said witnesses for corroborating the assertion of the prosecution through police witnesses and the panch witness whose impartiality clearly appears to be doubtful.

258.

The aforesaid submissions were repelled by learned APP by

urging that the said circumstances/features pointed by learned defence counsel rather than denoting artificialness of the said evidence denotes the prosecution having come to the court with clean hands and having placed the evidence as per the events which in reality had occurred. It was urged that in spite of the searching cross examination, defence failed to shatter the evidence of the said witnesses i.e. panch witnesses and police witnesses. It was urged that submission advanced is more in the nature of drawing surmises rather than indicating the same being logical inferences and as such the same does not deserve any credence.

194

conf.5.09

259.

After carefully considering the relevant evidence regarding

the said memorandum discovery and seizure we find substance in the submission canvassed by learned APP that in spite of the cross examination core of the prosecution evidence has remained unshaken, i.e., A2 having made such statements leading to discovery and having led to the police at stated places and at the said places the police having seized the material and so also contraband material as detailed in seizure panchanama respectively Exhibit P-393A and Exhibit P-394A being recovered and seized by the police. We do not consider it

improbable that the accused had made two statements. Accordingly, we do not agree that the said evidence deserves to be discarded as improbable event or artificial. For, careful perusal of both

memorandum panchnamas i.e. Exhibit P-393 and P-394 reveal that in fact statement made by accused on both the said occasions though pertains to the bomb prepared, still the statement made on both the occasion are for different purpose. In that, on the first occasion under panchnama Exhibit P-393 for the purposes of showing the place at which the remaining material used for preparation of the bombs was kept; while on the second occasion for showing the place at which the bombs were prepared. Thus, bare reading of the evidence pertaining to the statement made by A2 on the respective occasion being distinct and

195

conf.5.09

for separate purpose, there is no merit in the defence submission in this regard. Similarly, the contraband material being also found during the said second visit related to panchanama Exhibit P-394 by itself cannot be said to be circumstance for inferring that after making the said statement police and panchas had gone there with the knowledge of their being likelihood of recovery of contraband material even from the said place. Having regard to the said features and the second statement being made during the course of interrogation by another officer also reinforces the events having occurred in stated manner as canvassed by the learned APP - rather than the same denoting no such events had occurred as canvassed by learned defence counsel. In the said context it can be further added that the stated events having occurred just after arrest of accused/A2 considering his state of mind after his arrest, it is not possible to countenance that he ought to have disclosed all the matters pertaining to the bombs in the first statement itself. It is well known that different persons may act in different manner in the same situation. It can be further added that the second statement being made during the second interrogation made by different officer and the same strictly being for different purpose and more so connected with the acts committed by A1 and so also at the house of A1, the possibility of A2 recollecting it at a later stage also cannot be ruled out. The same is the case regarding the submission canvassed of culprits using two places

196

conf.5.09

for storing the remaining material being illogical. It is not possible to accept this defence in the face of clinching material/evidence produced by the prosecution. The same is apparent as culprits may have acted in that manner for a particular reason known to them. Thus, considering the totality of the evidence, it is apparent that the

conspiracy was for committing bomb blasts within Mumbai and was not restricted for commission of only four incidents of bomb blasts. At any rate, the prosecution having produced evidence of the second event which had happened soon after occurrence of the first event; and the same being also otherwise established by the evidence is also a feature suggesting truthfulness of occurrence of such events rather than manipulation as urged on behalf of the defence.

260.

We have pointed out observations made by Apex Court in

the decision in the case of Vadivelu Thevar .vs. The State of Madras
reported in AIR 1957 SC 614, amongst other,

that no plurality of

witnesses is necessary for establishing a facet established through the evidence of a reliable witness. It is, therefore, difficult to give any credence to the submission canvassed that in spite of mother and sisters being present in the house of A2 during the course of recording of Exhibit P-393A it was necessary for the prosecution to examine them for assuring the prosecution case unfolded through the evidence of

197

conf.5.09

panch witness and the police witnesses.

Needless to add that in

absence of anything having surfaced from the record to indicate that panch witnesses for both the panchanamas being stock police witnesses, merely because they had acted for both panchanamas or that during drawing of second panchanama, the Officer had asked the constable to bring panchas does not by itself lead to an inference that artificial documents have been prepared. Needless to add that merely because explanation given by the panch witness that he had returned to the police station due to having forgotten his mobile, being not recorded in panchanama by itself be regarded as a feature leading to such inference and particularly after that evidence having remained unshattered in spite of his gruelling cross examination.

261.

In the context of the article seized under the aforesaid seizure

panchnama the learned defence counsel urged that evidence relating to the contraband of article and particularly the alleged explosive substance-gelatin sticks, detonators allegedly seized from the house of A2 under seizure panchanama Exhibit P-393A and from the house of A1 under seizure panchanama Exhibit P-394A does not reveal that the explosive substance or the sample thereof taken charge and sent to C.A. at the time of seizure was sealed by the police. It was urged that the said circumstance being relied by the prosecution for showing

198

conf.5.09

nexus of accused i.e. A1, A2 and A3 with the explosive substance and consequently with the bombs prepared and used for attempt to cause explosion in BEST Bus returning to Seepez M.I.D.C. Bus Depot and for causing explosion in BEST Bus at Ghatkopar, it was essential for the prosecution to seal the said articles. It was urged that the same could have only guaranteed that the samples of such articles seized from the said houses had reached the C.A. who had opined about the articles send to him by police were explosive substance. It was urged that absence of the seal upon the seized sample takes away the sanctity of prosecution case that the articles seized from the said house or the said article only in the same condition had reached C.A. It was urged that in absence of evidence establishing the relevant facet finding of a C.A. the article sent to him by the police was explosive substance is inconsequential and as such the prosecution cannot be said to have established that explosive substance were found in the house of A2 or in the A1. It was urged that the relevant evidence also reveals that the gelatin sticks allegedly found in both the said houses were bearing description "Noble gel 80 necl Hingni, Wardha". It was contended the said description duly indicated of the same being manufactured at the factory at Wardha. It was contended that it is common knowledge that explosives manufactured at the factories cannot be sold outside by anybody except the dealer authorized to sale the same and that too as

199

conf.5.09

per the terms and conditions as provided by the rules made in the said behalf under the provisions of Explosive Act. It was urged that

investigation of that aspect was necessary as that relevant evidence could, alone, have established the nexus of A1, A2 and A3 with the said explosives. It was urged that investigating agency had failed to investigate in that behalf nor any evidence regarding the relevant aspect has been adduced at the trial. It was urged that the same has not been deliberately made by the investigating agency so as to falsely rope the charge sheeted accused in the present case. Hence, no

conclusion of explosive substance being found in possession of A1, A2 and A3 is warranted on the basis of prosecution evidence and as such they deserves to be acquitted from the charges framed against them in that behalf. It was urged that the same also cast serious doubt about the involvement or nexus of A1, A2 and A3 with the incident of explosion for which the trial has been held and even on that count benefit of doubt deserves to be given to the accused. It was urged that the same argument would be equally applicable for the alleged discovery and recovery of the explosive substances at the behest of A1 either in his house or the house allegedly said to be his house.

262.

The aforesaid submissions were repelled by learned APP It was urged that the contraband articles

being devoid of merit.

200

conf.5.09

(explosive substance) about which grievance is tried to be made, the same could not have been sealed by using a lac seal as the same could have been imminently dangerous without knowing precisely the nature of the said material or the temperature point for explosion of the same. Learned APP by making reference to Rule No.8 of The Explosive Rules 1983 urged that the same shows the manner in which the explosive substances from the point of safety are required to be wrapped and kept. It was urged that the same amongst other reveals that the same are to be kept in plastic bags and the same are to be kept in the card board box. It was urged that practically the same method was followed while packing explosive contraband article seized and/or the samples taken from the same.

263.

The learned APP further urged that the grievance now tried

to be made that the prosecution evidence denotes possibility of some other article being sent to C.A. for falsely roping the accused only on the basis that the said articles seized were not sealed, is an

afterthought submission. It was urged that, admittedly, prosecution evidence revealed that contraband articles were not sealed by using lac seal while the other articles seized during the said recovery were duly sealed by using lac seal. It was urged that their evidence denotes that purposefully the explosive articles or the samples taken from the same

201

conf.5.09

were not sealed by the Officers seizing the articles. It was urged that in order to make the capital out of such conduct of the said officer, - it was necessary for the defence to give him an opportunity to explain the reason for not sealing the same. It was urged that the reason being apparent, - it was not necessary for the prosecution to give evidence regarding the same. Furthermore, in order to condemn the officer for such conduct or the same being for the purpose of tampering with the articles, it was necessary for the defence to put up such a case to the investigating officer/the officer who had seized the said articles. It was urged that no such case was put to the said officer(s) or to the panch witnesses. Hence, no cognizance of this grievance deserves to be taken. It was urged that the the prosecution evidence unambigously indicates that immediately on the next day the articles were sent to the C.A. It was urged that the evidence also indicates of there being no manipulation and due to the need of time at the time of seizure, explosive articles were not sealed with the lac seal. The learned APP in the same context also placed reliance upon the decision in a case of Bilal Ahmed Kaloo .vs. State of A.P. reported in (1997) 7 SCC 431 and paragraphs no.17, 19 and 20 for the same, of which paragraphs no. 19 and 20 are to the effect: "19. Learned counsel for the appellant, however, assailed the prosecution case relating to the said revolver and cartridges, on the ground that those articles were not

202

conf.5.09

sealed after seizure and were left at the police station for a number of days before they were sent to the Forensic Science Laboratory. 20. We are not impressed by the said contention and we may point out that the appellant made no allegation at any stage of the case that the revolver and the cartridges were tampered with by the police. Not even a suggestion was made to any witness in that direction. According to the counsel, since those articles were not sealed there was the possibility of their being tampered with. Such an academic possibility need not be countenanced by us in this case because even the accused has no case that they were tampered with. That apart, the particulars of the weapon were given in the seizure memo and the same tallied with the weapon on examination by the ballistic expert. There is no challenge to the seizure memo admittedly prepared at the time of recovery of arms and ammunition. The identify of the weapon thus stands established beyond any reasonable doubt." (emphasis supplied) 264. Similarly considering question involved being related to

establishing a fact beyond pale of doubt in criminal prosecution, we feel it appropriate to make reference to observations made by learned Authors Woodroffe & Amirali in their treaty by name LawofEvidence14thEdition,whereinonpage195and196 whileconsideringthedifferenceofaproofincivilandcriminal casesandparticularly regardingtheaspectofthetestbeyond reasonabledoubtwhereinitisobserved: "(m).... (n) Test Beyond reasonable doubt. Strictly speaking, the test of legalproof isnottheabsenceof

203

conf.5.09

reasonabledoubt,thoughthatisoftenaconvenientway ofexpressingwhatismeantby`proof'.Thetestisreally the estimate which a prudent man makes of the probabilities,havingregardtowhatmustbehisduty asaresultofhisestimate.Ineachcasewhetherproofof thecasefortheprosecutionorproofofthedefencesetupby theaccused,itistheestimateofprobabilitiesarrivedat fromthispracticalstandpointbyaprudentman.

265.

We have recited the aforesaid observation in view of

misconception prevailing regarding the said test in the criminal proceeding. At the cost of repetition we may add that by the said test exclusion of other probability is warranted and not the exclusion of far fetched possibility as tried to be canvassed in the instant case

regarding non-sealing of the said explosive substances at the time of seizure from the houses of A2 and A1 and the one which were immediately sent to C.A. on the next day as rightly pointed out by APP. Thus in the light of the observations made by the Apex Court in the decision relied by APP and the factual submissions made by her regarding the said aspect including non-cross-examination of the relevant witnesses and not putting of the case being in conformity with the record, we find the grievance made by the defence is untenable.

266.

As a net result of the aforesaid discussion, it will be

necessary to conclude that the prosecution has duly established A1, A2

204

conf.5.09

and A3 were arrested as claimed by the prosecution i.e. A1 on 31st August, 2003 and A2 and A3 on 1st of September,2003. Similarly by the same evidence the prosecution has also established the articles, contraband articles, gelatin sticks, alarm clock and detonators were found at the house of A2 and/or places pointed by him i.e the house of A1 and A3 and so also the house which was found in possession of A1.

Purchase of Airtel SIM Cards bearing No. 9892451164 and 9892077831 by accused Nasir

267.

The learned APP by drawing our attention to the evidence of

panch witness PW3 Rajendra Pawar for memorandum panchanama Exh.P-274 dated 9th September, 2003 and PSI Pramod Toradmal PW51 regarding the same and so also to the evidence of PW4 Anil Parmar owner of the shop by name Raj Electronics situated at Andheri Marol, and PW5 Ashok Satra also owner of another shop by name Karishma Electronics also situated at Andheri Marol nearby the first shop and so also the evidence of PW7 Ghanshyam Dube working as a Salesman in Indu Commercial

Corporation, Andheri West , retail distributor of sim-cards for Airtel Company and so also PW6 Manoj Manikrao Patil working as in-charge of a computer section in Airtel Company urged that by the said evidence the prosecution has duly established that in the month of July, 2002 A1 along

205

conf.5.09

with encountered accused Nasir had been to the shop of PW4 and at the said shop encountered accused Nasir had purchased sim-card having mobile no. 9892451164 in the name of Habib Omar resident of Shalibanda, Hyderabad by filling enrollment form Exh.P-280. It was urged that by the said evidence the prosecution has also established that in similar manner said encountered accused along with A1 had been to the shop of PW5 and purchased another prepaid sim-card having mobile no. 9892077831 by handing over copy of driving licence and filling enrollment form.

268.

It was urged that the said evidence also establishes that on 9.9.2003

A1 in presence of panchas disclosed that he would show the shop at which he had been along with Nasir for purchase of sim-card of Airtel Company and the same was recorded by PW51 under memorandum panchanama Exh.P-274 and thereafter A1 had taken panchas and Police to the shops of PW4 and PW5 at Marol, Andheri. It was urged that the Police by giving the mobile numbers disclosed by A1 to PW4 and PW5 had made the inquiry regarding purchase/sale of sim-card for such mobile numbers and each of the said shopkeepers after verifying the record having told of sale of sim card by them i.e. PW4 sim-card having mobile no.9892451164 and PW5 Ashok Satra sim-card having mobile no. 9892077831. The said evidence has also established that each of them had sold the said card to two persons who had been to the shop for purchasing the same and had identified A1 being one of them and and PW4 and PW5 had identified on the basis of the photograph of Nasir that he was the other person who had accompanied A1 and had purchased the said

206

conf.5.09

sim-card in the said name by filling up the forms and handing over the documents. It was urged that the said evidence also establishes that the said sim-cards sold by the said shopkeepers were prepaid mobile cards purchased by them from Indu Commercial Corporation. The Police had also seized the documentary evidence from the said shop. It was urged that the prosecution through the evidence of PW1 has established that two sim-cards of Airtel Company of numbers were found on the person of encountered accused i.e. one in his mobile and one in his purse when he was encountered.

269.

The learned APP further urged that by the evidence of PW6

Computer In-charge of Airtel Company, the prosecution has established the call-record of the said two mobile numbers i.e. Exh.P-284 Colly. call records with the certificate given by the said witness. It was urged that the said call records reveal that on 25th August, 2003 i.e. the day on which explosion took place, two incoming calls from Dubai calling no. 5451488 were received on the mobile of Nasir bearing no. 9892451164 i.e. first call at about 6.01 minutes and 19 seconds p.m. and the second at 6.02.11 p.m. It was urged that by the said evidence the prosecution has also established that in between 22nd August, 2003 till 25th August, 2003, there were total eight outgoing calls to Dubai no.5451488. On 24.8.2003 there were two outgoing calls to the same number 5451488, the first call was at 10.48.28 a.m. and second call was at 6.58.39 p.m. On 25th August, 2003 the outgoing call on the mobile No. 5451488 was at 10.59.22 a.m. and there was SMS made from mobile no. 9892451164 to Dubai No. 5451488. She further urged that the said evidence

207

conf.5.09

also shows that on 31st July, 2003 from another mobile of Nasir, call was made to mobile No.5451488 at Dubai.

270.

Learned APP thus contended that after duly considering the said

evidence the trial Court for the reasons stated in paragraph no. 195 and 196 and so also the admissions given by A1 during the cross-examination effected by learned APP when A1 has given the evidence in support of his defence, accepted the said evidence. It was urged that the said evidence duly

corroborates the evidence of PW1, PW2 and the matters in the confession of A1 and A2 and so also the evidence of PW 28 Dilip Yagnik from whose STD Booth A2 had given a call to Dubai. It was thus urged that the said evidence establishes the offences for which trial was conducted , were committed in pursuance to the conspiracy hatched, involvement of A1, A2 and Nasir in the said conspiracy and themselves remaining in touch with each other by giving the calls on the said number.

271.

After carefully considering the said evidence, we find force in the

submissions canvassed by the ld. A.P.P. For, the same is in conformity with the matters surfaced from the said evidence. Needless to add, we are unable to find any fault with the trial Court for accepting the said evidence and using the same as a corroborative piece of evidence to the matters stated in the confessions as pointed. Further, the said evidence considered with other evidence also establishes that at the nick of the time prior to occurrence of explosion at Zaveribazar A2 had given call to Dubai from the STD booth of

208

conf.5.09

PW 28 and so also A1 had given call to Nasik on 25th August 2003 prior to proceeding to Gateway of India from Azad Galli along with his wife A-3 and daughter in the taxi of PW 15 laden with a bag containing explosives.

ENCOUNTER INCIDENT-12th September, 2003

272. The prosecution has mainly relied upon the evidence of PW1 PSI

Sachin Kadam for proving the occurrence of the aforesaid incident and during the same police being forced to encounter accused Nasir. The evidence of PW 1 is also relied by the prosecution to establish the articles which were found on the person of said Nasir at the time of his death. Finding of such articles with him is further relied by the prosecution for corroborating the evidence of PW 2 approver and so also the evidence of the other witnesses mainly PW4 and PW5 from whose shops simcards were purchased by

deceased Nasir along with accused no.1. The mobile numbers of the simcard found on the person of Nasir is further relied by the prosecution for establishing the factum of communication between Nasir and accused no.1 and so also with accused no.2 prior to the occurrence of incident of blasts and so also just before and after commission of the blasts particularly at Zaveri Bazar and Gateway of India. 273. Now reference to the evidence of PW 1 reveals that during the 2nd

paragraph of his deposition he has deposed regarding the receipt of information, about the information which has led them to lay a trap nearby Ruparel college at Matunga for arresting Nasir required in connection with

209

conf.5.09

blasts at Gateway of India and Zaveri Bazar. The same also reveals steps taken by them thereafter by PW 1 and other members of the said police party. 274. The evidence of PW 2 in paragraph no.2 reveals the events

occurred after the said police party had been to the place of trap and particularly the events which had occurred thereafter as per the information received about the arrival of Maruti 800 car to the said spot. The said evidence in terms reveals the steps taken by the said party for arresting Nasir and his associate had been in the said Maruti van and the events which had led PW 1 and the other companion police officers to fire bullets at the offenders who had started firing at them in spite of the alarm given by the police for throwing away the weapons taken out by them. It reveals the manner in which the offenders were injured and taken to KEM hospital and PW 1 after receiving information of both of them being dead having been to Shivaji Park Police Station and lodged FIR No.225 of 2003 for offences under Sections 307, 353 read with 34 of IPC (Exhibit P-253) regarding the incident occurred and in the mean while spot being guarded by the police. The same also reveals that a bag was found in dicky of the said one blue colour Maruti 800 car in which the said deceased persons had arrived at the spot and so also papers were found on the dashboard of the said car. The same also reveals of PW 1 having vouched for the matter stated in the said FIR of which copy (Exhibit P-253A) is on record.

275.

The evidence of PW 1 in paragraph no.3 unfolds drawing of

inquest panchanamas Exhibits P-254 and P-255 regarding absconding accused

210

conf.5.09

Nasir and his companion Hasan Habib in presence of PW 1 at KEM hospital. Significantly enough the same reveals a purse containing cash amount of Rs. 1182/-, credit card of ICICI Bank in the name of Ahmed Abdul Rehman, one more of Citibank in the name of Atik-Ur-Rehman, two driving licences bearing the photograph of Nasir and the one bearing a name Abdul Rehman Aidid son of Aisha Sayyed Ali and another in the name of Sayyed Abdul Rehman; three withdrawal receipts from ICICI Bank, three passport size photographs of Nasir, one simcard of Airtel company were found on the person of Nasir. Similarly one diary, Nokia company mobile phone

containing simcard of Airtel company and so also five slips bearing rubber stamp of Gujarat Revenge Muslim Force were also found on his person. The evidence of PW 1 in next paragraph also numbered as 4 reveals the articles which were found on the person of Hasan - companion of Nasir. While the

evidence in paragraph no.5 reveals regarding steps taken to seize articles under the panchanama. The evidence of PW 1 in paragraph no.6 is more confined to the weapons which were found with deceased persons and identification of the same by PW 1.

276.

The evidence of PW1 in paragraph no.7 reveals that he identified

article no.70 being the credit cards of Citibank and ICICI Bank and article no. 71 being the driving licence bearing photographs of Nasir found on his person. The further part of the examination in chief of PW 1 is confined to identification of the articles and documents referred therein i.e. the one which were found either on the person of Nasir or in the said Maruti car.

211

conf.5.09

277.

Now reverting to the cross-examination of PW 1 effected on behalf

of accused nos.1 to 3, the same does not reveal any significant matter elicited therein to shatter the claim of PW 1 regarding occurrence of such events and particularly that Nasir was encountered and such articles were found on his person i.e. as claimed by PW 1. Even the case regarding the cross-

examination effected on behalf of accused no.4 is no different. As during the same in the earlier part amongst other matters except the conduct of PW 1 of not informing about occurrence of the incident to the Investigating Officers of Gateway of India and Zaveri Bazar, PW 1 not able to tell the name of Constable from Shivaji Park Police Station stationed at the spot, himself after returning to the spot having not opened the car to ascertain whether there were more weapons or explosives, himself having not made an entry regarding having taken bullet proof jacket. This cross-examination does not take the matter any further. Such a conclusion is inevitable, keeping in mind the explanation given by PW 1. That explanation appears to be plausible. In that, PW 1 having lodged the FIR regarding the incident with Shivaji Park Police Station and entry regarding bullet proof jacket being made by his superiors, himself being not told by any superior officer to approach the Investigating Officer of blasts case for giving statement etc.

278.

The perusal of the further part of said cross-examination reveals

that during the same omissions of PW 1 while lodging FIR having not specifically told that Nasir was wanted in Gateway of India, Zaveri Bazar, Ghatkopar Second Blast and Seepz case was brought on the record. Similarly

212

conf.5.09

omission regarding the details about the position taken by them at the spot in a particular manner being not stated while lodging FIR was also brought on the record. He was also searchingly cross-examined regarding the manner in

which the said incident had occurred and the events which had occurred thereafter. 278.1 However, careful consideration of all the said answers also do not

justify the suggestion given to the witness that no information as claimed by him was received and he had introduced a new story at the instance of his superior police officer or that no incident as claimed by him had occurred at the spot or that a false complaint was filed by PW 1 at the instance of his superior police officer. Needless to add that all the said suggestions and so also the suggestions on similar lines given to PW 1 were duly denied by him. Thus considering the evidence of PW 1 as a whole we find it difficult to accept that his evidence given under sanctity of oath is liable to be discarded for any of the matter brought on record during the cross-examination. 279. Mr.Wahab, learned counsel for A1 urged that prosecution ought to

have examined independent witness for establishing that the incident as claimed by PW 1 had occurred on the relevant day rather than solely relying upon the evidence of PW 1 who is a Police Officer and as he was bound to act as told to him by his superior officer. It was further urged that the prosecution at least should have examined panch witnesses and produced the original documents such as relevant panchanamas in the present case for giving support to the evidence of PW 1. It was urged that the prosecution

213

conf.5.09

having chosen to adduce only the evidence of PW 1 and having withheld other independent evidence it will be necessary to draw adverse inference against the prosecution for withholding material evidence. It was contended that in aforesaid state of affairs it will be hazardous to accept that the incident as claimed by PW 1 in reality had occurred or any documents as claimed were found on the person of Nasir. 280. The learned Counsel further urged that for establishing identity of

one of the deceased as being Nasir, the prosecution should have adduced further evidence of the persons from the locality where the said Nasir was supposedly residing. They could have been traced on the basis of the material found with Nasir i.e. his address mentioned in the driving license of Ghatkopar, Mumbai area. It was urged that same was necessary in view of different names/addresses being found in the credit cards. It was urged that similarly the prosecution ought to have shown photograph of encountered Nasir to PW4 and PW5 from whom the sim card was allegedly purchased by the deceased by going to the shop at which he/ they were working. It was also urged that substantive evidence of PW1 only talks about sim card of Airtel company without disclosing number of said sim card or the mobile number which could have been easily ascertained by the police by giving call from the same. It was urged hence merely on the basis of his evidence, prosecution cannot be said to have established that a particular sim card was found in the mobile which was said to have been found with the deceased, which,

prosecution alleges to be Nasir. It was urged that showing photograph of the encountered person to the shopkeeper PW4 and PW5 from whom Nasir had

214

conf.5.09

allegedly purchased sim card and establishing the number of sim card found in the mobile through the evidence of panch witnesses could have only added sanctity to said evidence adduced by prosecution. It was urged that in

absence of the said evidence, prosecution cannot be said to have established that deceased was Nasir or mobile card purchased from PW4/5 was found with him. It was thus contended that the evidence of PW 1 by itself is insufficient to establish deceased was Nasir or the sim card as alleged by the prosecution was found with him. 281. The aforesaid submissions were rightly repelled by the learned

APP by urging that at criminal trial the quality of evidence matters and not plurality of the witnesses. In the earlier part of the Judgment, we have already recited the observations made by the Apex Court in the case of Vadivelu Thevar (supra). In light of the said observations, it would have been

necessary for the prosecution to examine other witnesses to corroborate PW 1, only in the event of his evidence being found to be that of a partly reliable witness necessitating corroboration. After considering his evidence, since we have not found anything because of which he can be termed as either unreliable or partly reliable witness and on the contrary having found that he is a natural and reliable witness, it is difficult to accept the defence submission and/or insistence that his evidence cannot be accepted without there being corroboration to his evidence by independent witness merely because PW 1 is a police officer. The Apex Court has observed that presumption of honesty available to other independent witnesses is equally applicable even in respect

215

conf.5.09

of evidence of the police officer. Having regard to the same and the evidence of PW 1 having not denoted any circumstance requiring corroboration, the submission for insisting such a corroboration merely because he is a police officer will not hold good. Needless to add that considering the reason for which PW 1 visited the relevant spot nearby Ruparel College at Matunga upon receipt of an information and the events occurred at the said spot, it cannot be said that he was an interested witness. 282. Now considering the limited purpose for which the prosecution has

adduced the evidence of PW 1 i.e. one of the accused required in connection with the blast, could not be arrested due to the events which had occurred while police party had gone to apprehend him i.e. occurrence of incident of encounter and the articles which were found with the deceased, it is difficult to accept that merely because inquest panch is not examined at this trial, would affect the evidence of PW 1 which is otherwise found to be reliable regarding the matters deposed to by him upon sanctity of oath. In the same context, it can be further added that though defence had tried to make mountain out of the mole regarding identity of the said deceased as being Nasir, we are unable to see any substance in the same as hardly any evidence has surfaced on the record creating a doubt in our mind of the said deceased being anybody else other than Nasir. The learned defence Counsel has also not brought to our notice any evidence surfaced from record that the police investigating the crime, which was registered at Shivaji Park Police Station, had not collected the evidence in the form of statements of witnesses residing

216

conf.5.09

in the neighbourhood or an address found on driving license and/or other documents of the said deceased being Nasir. Needless to add, it has been also not brought on the record of the corpse of the said deceased was claimed by somebody claiming to be the same being of some other person (other than Nasir). Similarly having due regard to the fact that credit cards and the driving license were bearing photographs of Nasir, we do not find any substance in the submission canvassed on the count of address or the names being not one and the same on the said documents. 283. Similarly, considering the limited purpose for which the evidence

of PW 1 was adduced by the prosecution at this trial, we are unable to find any substance in the submission canvassed that all the papers pertaining to crime registered with Shivaji Park Police Station in connection with the incident of encounter should have been produced in the present case and/or the said case ought to have been amalgamated and/or tried with the present case. The core issue involved in the crime registered with Shivaji Park Police Station being altogether different i.e. whether any offences were committed during the said incident when police party, upon information, had been to area of Ruparel College for nabbing accused Nasir than the issue involved in present trial i.e. commission of terrorist act by making bomb explosions within Mumbai, in pursuance to the conspiracy hatched; we find it extremely difficult to find merit in the said submission. 284. Similarly, the evidence of PW 1 in terms reveals that he was party

to inquest panchanama Exh.P-254/A and having vouched for the correctness

217

conf.5.09

of the contents of the same and nothing being brought on the record to shatter his said claim and the said panchanama depicting number of sim card makes it difficult to accept that in view of PW 1 during his substantive evidence having not deposed number of the said sim card, it was necessary for the prosecution to examine panch witness for the same. Needless to add that in event of a fact being established by the evidence of a witness - i.e. in the instant case, number of the said sim card - through the evidence of PW 1, the law does not require examination of another witness for establishing the same fact. Similarly PW5 during his evidence, having identified photograph of Nasir as being the person who had been to his shop along with A1 for purchasing sim card, and hardly anything having surfaced on the record that the said photograph was not that of Nasir, makes it difficult to accept that it was necessary for the prosecution to show him the photograph of the encountered person at the trial or at the photo identification parade for establishing that encountered person was Nasir. At the cost of repetition, it can be added that without there existing any reason for not accepting the evidence of PW 1 that encountered person was Nasir, any such exercise would have been an empty formality and multiplication of evidence.

285.

Mr. Wahab, learned Counsel for A1, by placing reliance upon the

decision of a constitutional bench in a case of Kartar Singh Vs. State of Punjab, reported in (1994) 3 Supreme Court Cases 569 and particularly the discussion made in paragraph Nos.360 and 361 urged that the said decision and the said observation reveals that the provision made under TADA Act for

218

conf.5.09

photo identification parade was struck down by the Apex Court. It was urged that having due regard to the same, method used by the investigating agency in the instant case to hold identification parade by means of photograph deserves to be discarded or at least deprecated. Paragraphs 360 and 361 runs as under : "360. Though no oral argument has been advanced by the learned counsel challenging the validity of this provision, since we are scrutinising the entire Act, we feel that it would be better if our view on this provision is also recorded. However, Mr. Jethmalani in his written submissions has stated that this section is unintelligible and that it is quite impossible to identify any person on the basis of his photograph especially in the present day when trick photographs are being taken. I see much force in this submission." "361. If the evidence regarding the identification on the basis of a photograph is to be held to have the same value as the evidence of a test identification parade, we feel that gross injustice to the detriment of the persons suspected may result. Therefore, we are inclined to strike down this provision and accordingly we strike down Section 22 of the Act." 286. After carefully considering the relevant provision made u/s. 22 of

TADA which was struck down by the Apex Court and so also the aforesaid observations, we are unable to accept the aforesaid submission to conclude that for the said reason, even the photo identification parade of a deceased person cannot be held for any meaningful purpose. We are of considered opinion that the observations made by the Apex Court are in relation to an absconding terrorist accused, admittedly, a living person and as such, the same cannot be said to be of significant use for discarding the evidence collected in respect of a deceased person. It is obvious that a deceased

219

conf.5.09

person/accused can never be put for any identification parade and only the way for holding the test identification parade of that person would be holding the same by using his admitted photograph. In event of discarding the

evidence of such a parade or identification of such a deceased accused made by a witness by means of a photograph would amount to discarding the relevant evidence. In view of the same, we do not find any substance in the submission canvassed that the evidence of PW4, PW 5 and/or other witnesses would be adversely affected because of identification by photograph.

287.

In the premises aforesaid, we find no error has been committed by

the trial Court in accepting the evidence of PW 1 and using the same in light of the other evidence for concluding that one of the persons encountered in the said incident was absconding accused Nasir and the documents, credit cards and mobile phone containing a sim card of Airtel company as deposed by him, were found with him, and the same considered along with other evidence establishes his nexus with A1.

Efficacy of Evidence of PW2-Approver 288. The glance at the evidence of PW2 reveals that during

initial part he deposed about (i) knowing A2 as he was studying with him in the school. (ii) also knowing accused Nasir resident of Hyderabad and his full name being Abdul Rehman Ali Aydee and was also known to him as Sayyed Ali Aydee, Atique-Ur Rehman, Ahmed Sayyed Ali Aydee and encountered by police when he (PW2) was at Dubai.

220

conf.5.09

(iii) at Dubai Nasir having shown him credit card Article 78 bearing No.5081 1751 3642 1014 of City Bank Karachi Branch at Pakistan with name as Atique-Ur-Rehman on said credit card. and told that same was given to him by his friend in Pakistan when Nasir had been to Pakistan for undergoing training in preparation of bombs and for handling fire arms and ammunition. (iv) in May, 2003 when PW2 had been to Mumbai Nasir having shown card Article 70-b bearing No. 4731 9662 3917 1259 of ICICI Bank Hyderabad branch with name mentioned as Ahmed Sayyed Ali Aydee and valid up-to 2006. (v) Nasir also had driving license Art. 71 in the name of Abdul Rehman Ali Aydee and second driving license is in the name of Sayyed Ali Aydee and bearing his photographs. (vi) In June, 1999 himself having been to Dubai for job, got job in Alimco Trading Establishment and having worked as a Labourer for about four and half years in that establishment and having left Dubai on 1-10-2003. 289. It further reveals PW2 having deposed that

(i) from Dubai he used to communicate with Nasir at Mumbai on Mobile by his mobile phone having number 5451488 (ii) and at that time Nasir was having two mobiles with nos. 9892451164 and 9892077831 (iii) STD Code of Dubai being 0097150 and India timing being ahead by about one and half hour than Dubai timing. (iv) he became acquainted with Nasir in August 2000 in a Masjeed in Dubai and so also with persons by name Hanif i.e. A1, his wife Femida A3, one Bilal, Samiulla, Rehman, Aabid, and Naeem (v) he had identified A1 and A2 accordingly in the court. He deposed that he had been to India in April 2002 and as asked by A1 at Dubai had handed over chocolate parcel to A2 at the

221

conf.5.09

house of A1 at Marol Chimat Pada Mumbai. 290. Significantly enough PW2 further deposed that (i) himself, A1, Nasir, Rehman, Bilal, Samiulla, Abid were members of Lashkar-EToiaba (ii) and he had joined Lashkar-E-Toiaba in the year 2001 because he wanted to take revenge of Godhra incident in Gujarat and (iii) to take revenge of atrocities on Muslims as were shown in CDs in respect of Gujarat Incidents. (iv) same is a Pakistani based organization established with a view to spread terrorism. (v) speeches were given in Masjeed from Maulanas in Pakistan and (vi) CDs were played by Samiulla and Bilal with the help of computer,. (vii) Lashkar-E-Toiaba had branches in Dubai, Ajwan in U.A.E. and Abu Dabi but not in India. He deposed of attending branch of Lashkar-E-Toiaba at Dubai. 291. His evidence further reveals that

(i) in August 2002 they were told to go to India and spread terror by causing bomb blast incident, (ii) A1 and Nasir having underwent training for causing bomb blast i.e. Nasir near Karachi (Pakistan) and also at Dubai. (iii) He deposed Nasir having told him about the same and said training of preparation of bombs and handling of fire arms was given by commanders of Laskhar-E-Toiaba. (iv) though he wanted to undergo training in preparation of bombs and handling arms after joining Laskhar-E-Toiaba he had not undergone training because he had been to Mumbai on holiday in November, 2000.

222

conf.5.09

(v) after June, 1999 he had been to India on four occasions and before October, 2003 on three occasions. 292. Significantly enough with regard to conspiracy his evidence

reveals that (i) himself, Nasir, Hanif, Samiullah, Bilal, Rehman, and Aabid having participated in the criminal conspiracy to cause bomb blast incidents in city of Mumbai (ii) the same was hatched in August, 2002 at the residence of Nasir in Dubai. (iii) Nasir, A1 and A2 and A3 had given effect to the plan hatched in criminal conspiracy. (iv) when he was at Dubai, Nasir had told him on telephone that plan was effected by A1, A2 and A3. (v) A1 had informed him that first bomb blast in which bomb had not exploded was to be caused on 2-12-2002 near bus stop at Seepz in Andheri Area, (vi) while second was to be caused at Ghatkopar in a BEST Bus on 28-7-2003, (vii) 3rd bomb blast at Zaveri Bazar and (viii) fourth bomb blast Gateway of India on 25-8-2003 (ix) Nasir had informed him on telephone before said bomb blast incidents were caused. 293. PW2 has also deposed that

(i) earlier they had planned bomb blast in Gujarat, but thereafter had chosen city of Mumbai at the instance of their Pakistani associates (ii) as they had told that if bomb blast are caused in city of Mumbai which is visited by many foreigners and same will affect economy of India and it will have impact to all over in world.

223

conf.5.09

(iii) Abid their associates from Pakistan and other associates had told them that they would arrange for required material for causing bomb blast i.e. detonators, gelatin sticks, timer, RDX. (iv) pursuant to the criminal conspiracy A1 and Nasir had decided to go to Mumbai in India from Dubai (v) on 3-12-2002 A1 had made telephone call to him and informed me that there was a bomb blast incident in Ghatkopar BEST Bus at Ghatkopar and the bomb which was kept in the bus at Seepz (Andheri) had failed. (vi) he had asked A1 to carry on further as he wanted him to cause a big bomb blast explosion. 294. Amongst other PW2 also deposed that

(i) that in May 2003, he had been to Mumbai for attending marriage of his brother Khalid (ii) A2 had received him at Sahar Air Port (iii) He (PW2) had then stayed in Mumbai for about one month. and had then occasion to meet A1, Nasir, A2. (iv) in July, 2003 he returned to Dubai from Bombay, (v) when he had met their associates in Dubai in July, 2003, Samiulla, Bilal, Rehman, Abid, Naeem had told that incidents like unexploded bombs and small bomb blast explosion were disappointing (vi) there should be big bomb blast and the said associates had assured that they will supply RDX to Nasir at Mumbai. (vii) on 24.08.2003 Nasir had made phone call to him at Dubai from Mumbai twice (viii) one at about 9.15 a.m. Dubai timing (ix) second telephone call from Nasir at about evening (Dubai) timing at about 5.30 P.M.

224

conf.5.09

(x) Nasir had informed him that work was going according to plan (xi) disclosed the plan of 25-8-2003. (xii) then Nasir had contacted him at Dubai from number 9892451164 (xiv) he had received the said calls at about 10.45 a.m. and at about 7.00 P.M. 295. that: (i) about bomb blast occurred in Zaveri Bazar and near Gateway of India on 25.08.2003 Nasir had informed him at about 9.30 a.m. (Dubai time), on phoned that (ii) A1 and his family and A2 had proceeded to two different spots according to plan. (iii) He (PW2) must see the T.V. and accordingly he had seen the same at evening time and came to know that there were bomb blast incident in Taxi at both the places in Mumbai at Zaveri Bazar and Gateway of India. (iv) He had informed his other associates on phone to watch T.V. Accordingly they watched the T.V. (v) thereafter they had together made phone call to Nasir on phone No. 9892451164 at about 4.30 P.M. (Dubai time) i.e. at about 6.05 or so in Mumbai. (vi) congratulated Nasir and asked him to thank A2 and A1 as because the work according to plan had succeeded. 296. With regard to himself repenting and returning to India PW2 With regard to incidents in present case PW2 deposed

has deposed that (i) during the period between 25-8-2003 till 1-10-2003 while at Dubai he used to watch clips on T.V. regarding the bomb blast

225

conf.5.09

incidents. (ii) after watching clips regarding injured children, old men etc. he felt repenting. (iii) he was unable to sleep as the clips were coming in front of his eyes, (iv) he thought that he had committed offence and he must repent for it. (v) he wanted to repent in India by telling the police and also to the court as to what had happened. (vi) he wanted to repent because he had committed offence and in return he wanted to suffer punishment (vii) he was mentally disturbed and due to same he went to Masjeed and told about the same to Maulana by name Jaffar Saab from India in the Masjeed. (viii) that he was associated in the criminal conspiracy (Sajish ) and narrated happenings. (ix) Maulana told him that when the incident of bomb blast occurs the innocent persons are killed, which includes women, children, aged persons of Hindus and Muslims. Bomb blast do not discriminate Hindus and Muslims and it is against their religion (x) then he had felt more about repenting for the crime committed by him. (xi) he had thought that he had committed crime, and that he should go to his country and disclose truth to the police and suffer punishment which would be imposed. (xii) he had been to his associates and told them that he was disturbed and wished to go to India. (xiii) one of associate by name Yasin told him that if he goes to India then his condition would be worst. (xiv) said Yasin was from Pakistan and also member of Lashkar-

226

conf.5.09

EToiba. (xv) Yasin had told him that he will send him (PW2) to Pakistan from Dubai and then he can take out the passport and go to any other country other than India. (xvi) He thought that he had committed crime, and he will go to his own country and will suffer the punishment. 297. With regard to return to India and to become approver his

evidence reveals that (i) he came to India on 1-10-2003, went to his house, talked with family members about the crime committed by him, (ii) he also came to know that police from Bandra Crime Branch had been for inquiry and then after along with elder brother he went to Bandra Crime Branch on 1-10-2003 at about 1.00 P.M. (iii) PW103 made inquiry with him for about 2 hrs. and then allowed him to leave and called him again on the next day, and made inquiry with him for about one and half hour. He deposed that thereafter he was arrested in respect of Ghatkopar Bomb Blast Case and produced before the court. PW2 then deposed in detail regarding proceedings thereafter taken by DCP Kamlakar at Mulund on 21.10.2005 for recording of his confession i.e Exh. P-264 and on 23.10.2005 for recording of his confession Exh. P-264/A and about his production before CMM and the happenings thereafter before CMM.

298.

The evidence of PW2 reveals that he was extensively

cross examined on behalf of the accused practically upon each of the aspects upon which he has deposed in examination-in-chief. The

227

conf.5.09

careful consideration of the answers given by him during the cross examination made on behalf of A2 about his members of his family, their occupation, his relatives, the reason of himself residing separately at Mumbai and at Dubai, the persons residing with him at Dubai, whether he was having any other evidence other than his word that he was member of Lashkar-E-Toiba and so also encountered accused Nasir, co-conspirators Raheman and A1 were also members of the said organization and how he confirmed that they were members of the said organization, Nasir having gone to Pakistan for acquiring training in arms and ammunition and bombs etc. None of the answers given by PW 2 reveal any circumstance elicited therein to shatter this evidence. On the contrary, answers given by him were to confirm the claim staked by him regarding the relevant matters. The same is the case regarding the answers elicited during the cross examination regarding the reasons for which he thought of taking the revenge and so also the claim staked by him regarding which he felt repenting about the offence occurred at his hand.

299.

Similarly, considering the answers given by him to the

questions pertaining to his conduct about not lodging the complaint with Dubai Police regarding Samullah or not writing a letter to the

228

conf.5.09

Commissioner of Police, Mumbai or not immediately making the confession etc. is also not different. Without enlisting each of the aspects about his cross examination and the replies given by him, it can be safely said that careful scrutiny of his evidence do not reveal it had any effect of destroying the claim staked by him during the examination-in-chief.

300.

During the cross examination of PW2 on behalf of A3 and

A5, the details regarding his visit to Dubai and India were brought on the record. It has also surfaced on the record that he had not brought all the documents and his mobile phone while returning to India. The cross examination effected regarding the manner in which he had been to the Khar Police/PW-103 etc. also does not reveal any significant circumstance elicited therein, having adverse effect upon the main claim staked by him during examination-in-chief. Though certain

omissions were brought on the record during the cross examination, it is difficult to accept that the same had any significant effect of doubting main core of his testimony i.e. about the matters relating to conspiracy and himself being party to it, A1, A2 and A3 also being party to the same and having committed the acts for achieving the

object of conspiracy. Thus, considering evidence of PW2 as a whole, it is difficult to accept that his evidence will not inspire confidence due

229

conf.5.09

to any matters brought on the record during the cross examination. During the cross examination it has also surfaced on the record that he had handed over his Passport to his father after he had returned from Dubai. However, his father having not returned the same nor told him whether he had lost it or it was destroyed and PW2 being unable to find the same despite search taken in the house; this cross does not take the matter any further. He denied of having produced the bogus

documents i.e. the documents which he was asked to produce during the cross examination. It will not be out of place to state that after carefully considering the reasons given by the trial Court the same cannot be faulted, for not accepting the defence criticism and

accepting the evidence of PW2.

301.

Mr. Pasbola, learned defence counsel has canvassed that as

evidence of PW2 reveals that conspiracy was hatched in August 2002, it was incumbent upon the prosecution to lead some evidence to show that, in fact, he was in Dubai in August, 2002. It was urged that the entire evidence of PW2 is of hearsay nature as by and large the same talks about the matters allegedly told to him by absconding accused Nasir. It was urged that his evidence hardly reveals any participation on his part for furthering the object of conspiracy apart from himself having not staked claim of being party to the accused which has led to

230

conf.5.09

commission of blast in Mumbai. Learned counsel thus contended that having due regard to the said factor, it is difficult to accept that PW2 can be said to be party to the crime/conspiracy about which he has deposed. It was urged that apart from his evidence not showing of himself being main perpetrator of the crime, the same does not reveal that he was either main participant or even the perpetrator participant. Learned counsel, thereafter, by taking us through the evidence of PW2 tried to canvass that his evidence is either full of inadmissible matters i.e. the matters told to him by Nasir or other associates. It was urged that his conduct regarding the manner in which he become approver also appears to be suspicious. It was urged that the same gives an impression that he has given the evidence at the behest of the investigating officer.

302.

In the said context, learned counsel also urged that before

provision of Section 10 of the Evidence Act comes into play, the prosecution must establish that there were reasonable ground to come to the conclusion that two or more persons had conspired to commit an offence or an actionable wrong. It was urged that without the said aspect being established the recourse to the said section would not be permissible and as such matters spoken by PW2 with regard to the conspiracy and/or role played by A3 and the other accused would not

231

conf.5.09

be admissible evidence and as such on the said count, the said evidence will be required to be excluded from consideration.

303.

After taking into consideration the test laid in Section 10 of

the Evidence Act, it is for "making things said or done by conspirator in reference to common design". It must be of "reasonable ground to believe". The same is not rigorous to the extent of establishing the

fact of the accused persons having conspired together to commit an offence or an actionable wrong. After taking into consideration the evidence adduced by the prosecution in the instant case, we find it difficult to accept that by the said evidence the prosecution has not established the existence of criminal conspiracy and involvement of A1, A2 , A3 and Nasir. Without embarking upon detail discussion

regarding the said aspect at this stage, it can be safely said that occurrence of blast at three different places in Mumbai, and an attempt to cause blast at MIDC Seepz , manner and mode of causing explosion or attempt to explosion being similar i.e. plantation of bomb in public transport vehicle , such as BEST bus or Taxi , selection of place for causing such incident, nature of explosive material used for the same i.e. gelatin or RDX for preparing the bomb and involvement of one or more accused out of A1, A2 and A3 i.e. A1 and A2 for MIDC incident, A1 and A2 in Ghatkopar incident, Nasir and A2 for Zaveri Bazar

232

conf.5.09

incident and A1 and A3 for Gateway of India incident as initially spelt from prosecution material collected during investigation even de hors confession of A1, A2 and A3 and PW2 and lateron the evidence adduced at the trial, it is difficult to accept that the totality of

prosecution evidence was incapable of affording reasonable ground to believe that the accused were involved in the said incidents or that they had not conspired together. In view thereof, the same it is

difficult to accept the submission that evidence of PW2 is liable to be discarded because the same is hearsay due to main matters from the same was regarding matters told to him by Nasir or A1.

304.

Even considering the matter from another angle i.e. Nasir or

A1 having told certain matters to PW2, which evidence ordinarily would be hearsay within the meaning of the Evidence Act, as it is well known that conspiracies are always hatched in secrecy and due to the same direct evidence thereof is seldom available, it will be absurd to expect any direct evidence regarding the said events transpired in between Nasir and PW2 other than the evidence in the shape of either confession of said two persons or the evidence regarding the same given by them. In the instant case Nasir being encountered, it would be fallacious to expect any evidence from said source.

233

conf.5.09

305.

We have already recited the observations of the Apex Court regarding the classification of the

in a case of Vadivellu Thevar

witness as reliable, partially reliable and wholly unreliable. The said observations in terms indicates that in the event of evidence of witness after scanning is found to be reliable then no corroboration for the said evidence is necessary. The said observations also reveal that need of corroboration is found only in the event of witness is found to be partly reliable and partly unreliable. Having regard to the same , we find it difficult that even after PW2 under sanctity of oath having deposed of being in Dubai in August, 2002 and furthermore the manner in which on four occasions or thereabout having returned to India and the said facet having remained unshattered after searching examination, still there would be any need for prosecution to adduce corroborative evidence to establish that in the month of August, 2002 PW2 was in Dubai.

306.

In the same context it can be added that even settled

principles of appreciation of evidence does not warrant approaching evidence of witness with suspicion since beginning of the scrutiny

without there existing any reason for the same. The same principle will be also applicable for the evidence of approver. Needless to add that even provisions of Section 133 of the Evidence Act also does not

234

conf.5.09

state that corroboration is sine qua non requirement for accepting the evidence of approver for basing conviction upon the same. Though it is true that as a rule of prudence, it would be proper to demand for

corroboration for the evidence of approver due to peculiar nature of that evidence. Furthermore aspect of corroboration being related with question of fact, demand for a corroboration can be said to be reasonable only in the event such a corroboration is found to be necessary and similarly reasonably possible.

307.

Now considering the facts as spelt out from the evidence of

PW2 given on the sanctity of oath in detail, that after observing the matter in T.V. clips after the blast and deaths of persons injured etc., the feeling of repentance being developed in his mind and thereafter he had returned to India and approached the police, that entire evidence having remained unshattered during the cross-examination and so also the attempt of defence to test the same having failed from the reasonable answers received from him regarding every aspect connected with the said events, also makes it difficult to discard the said claim staked by him. It is well known that different people react in different manner in the same situation also makes it difficult to accept the defence submission that PW2 is got up witness by the investigating officer for suiting the prosecution case merely because

235

conf.5.09

his evidence does not reveal any significant part/role played by him in the conspiracy. It is difficult to accept the said criticism without any support for the same discerned from the evidence of either PW2 or that of PW103 Chief Investigating Officer to whom he had approached and thereafter became the approver.

308. reveal

The careful consideration of the evidence of PW2 does that at the time of occurrence of blast he was in Dubai.

Similarly, considering the nature of his occupation and/or profession it is difficult to perceive that he could have played any role in procuring material for causing the blast. Furthermore, conspiracy being for commission of the explosion at crowded places in Mumbai, to cause terror and thus such an acts being designed to be committed in Mumbai, also makes it difficult that PW2 then in Dubai could have played any prominent role in the episode. However, the close look at the evidence of PW2 does reveal the manner in which he was webbed in the conspiracy and the co-conspirators were confiding in him information regarding the object as well the plans hatched in the conspiracy, it is difficult to accept that he was not member of the said conspiracy. It is now well settled that in the offence of conspiracy, it is not even necessary that every conspirator knowing the other

conspirators or the role to be performed by him. It is enough that the

236

conf.5.09

acts committed by them are designed to achieve the object of the conspiracy. Thus, merely because PW2 had not committed any overt act for achieving the object of conspiracy i.e. the commission of blast, by itself, would not be enough to hold that he was not member of conspiracy or was roped in by the investigating officer.

309.

The learned defence counsel thereafter by pointing out the

fact that PW 2 after interrogation was permitted to leave by investigating officer by asking him to come on the next day and even his passport being not on record urged that the said circumstances indicated that he was roped in by the prosecution and entire story being cooked up for suiting the prosecution. After carefully considering the evidence surfaced on the record and the aforesaid submission being based upon the recitals of the evidence of PW2 and PW 103 being not at all questioned regarding the relevant aspects that whether any steps were taken by him for securing presence of such an accused for the next day when he had claimed to be involved in such a serious crime and as no such facet being established on the record, we are unable to find any substance in the said criticism. We are of the view that the evidence of PW 2 cannot be said to be shaken because PW 103 had not taken any steps in that regard. Even the case regarding non production of the passport of PW 2 also cannot be said to be fatal to the

237

conf.5.09

prosecution in view of explanation about the said facet surfaced on the record during the cross examination of PW 2. Furthermore, the further part of the cross examination also reveals that fact of PW 2 having returned from Dubai have been found corroborated from immigration cards produced by the prosecution.

310.

The learned defence counsel thereafter by making reference

to the evidence of PW2 in paragraph no.22 to the effect that he had been to Bandra Police Station without there being any message from PW 103, in paragraph no.23 to the effect that on the said day after interrogation PW103 had permitted him to go, in paragraph no.25 regarding non-production of passport, in paragraph no.26 of not making the confession immediately after his production before the Court and giving a lame excuse that then he was not under the threat from the co-accused and the omissions and contradictions recorded in paragraph no.33 urged that cumulative effect of all these shakes the sanctity of his claim and affords a reason to believe that he was a got up witness.

311.

After carefully examining the answers given by PW 2 in the we find that there is no reason to doubt the

cross-examination,

credibility of this witness. There is no merit in the argument of the

238

conf.5.09

defence counsel. For, the evidence of PW2 regarding the manner in which he had been to Bandra Police Station and the purpose for which he had been there, we find it difficult that he should have waited for the message from the investigating officer. In the context of PW103

having not immediately acted upon the say of PW2, it is difficult to conclude that the same warrants to accept the defence submission that it must be inferred that PW2 is a got up witness. It is not unknown that attempts are made to mislead the investigation or deflecting the police on wrong track. Thus, there is nothing wrong if PW103 decided to act upon the information given by PW 2 only after he was reassured about it and then arrested PW2. Thus, considering the evidence of PW2 in its entirety, it is difficult to accept the argument that such events have the effect of destroying the evidence of PW2.

312.

With regard to the contradictions and omissions pointed

from the evidence of PW2, it will be necessary to say that by and large the same are apparently in the nature of minor discrepancies, not fatal at all. Considering the reason for which the statement of PW2 was

recorded by ACP PW103 and by DCP being for different purpose, non-occurrence of certain matters in the respective statements cannot be given undue importance.

239

conf.5.09

313.

Lastly, the learned counsel for the defence has urged that the

manner in which the pardon was granted as revealed from the evidence of PW2 and PW103, the same creates a suspicion of high degree that PW2 is not the real approver but made up approver for suiting the purpose of the prosecution. It was also urged that non-recording

statement of PW2 after according a pardon has resulted in causing a serious lacuna as due to same defence has been deprived of an opportunity to check the evidence of PW2 at the stage of trial. The learned counsel in the same context also placed reliance upon the decision in the case of Suresh Chandra Bahri ..vs. State of Bihar reported in 1995 Supreme Court Cases (Cri) 60 and in a case of A. Devendran .vs. State of T.N. reported in 1998 Supreme Court Cases (Cri) 220, in support of his submission that in view of the provisions of Section 306 (4) (a) of the Code read with Section 49 of POTA, it was necessary to record such a statement. He further urged that nonrecording of the statement is a defect going to the root of grant of pardon and the same has resulted in vitiating the trial. He further urged that at least the same will require discarding the evidence of PW2 in toto and as such the same would not be of any assistance to the prosecution for advancing the case against A3 and so also against the other accused. The learned counsel further urged that label given to the application being not at all material and in reality the power to

240

conf.5.09

grant a pardon to the trial Court emanates from Section 306 of the Code , the prosecution submission that the pardon was accorded under provisions of Section 307 of the Code is also immaterial.

314.

The aforesaid submissions were countered by learned APP

by urging that in the instant case the pardon was tendered by POTA Special Court after taking the cognizance of the offence for which the challan was filed by PW103. In the said context she also placed reliance upon the decision in a case of Sardar Iqbal Singh .vs. State (Delhi Administration) reported in (1977) 4 Supreme Court Cases 536. She further urged that the Apex Court in the decision in a case of Harshad S. Mehta and ors. .vs. State of Maharashtra reported in (2001) 8 Supreme Court Cases 257 has very vividly explained dual role played by Special Courts which are empowered to take the cognizance without the case being committed to it. It was urged that having regard to the same, it is abundantly clear that pardon was granted by the said Court which was to try the said case. It was urged that the said decisions squarely reveal that such a power springs from the provisions of Section 307 of the Code. She further urged that merely because the said case was to be tried by the said Court, would not lead to the conclusion that the pardon was granted under the provisions of Section 306 of the Code. Learned APP further urged

241

conf.5.09

that as Section 307 does not contemplate recording of the statement of the person granted pardon before he is examined at the trial, the submissions advanced on behalf of the defence are misconceived. Learned APP further urged that none of the submissions canvassed on behalf of the defence will deserve any credence nor the trial is vitiated as urged nor the evidence of PW2 is liable to be discarded as urged.

315.

To consider these submissions, it will be necessary to take the provisions of the POTA and so also the Code

into account

regarding the powers of the POTA Special Court for according the pardon. Reference to the provisions of Section 49 of the POTA

reveals the modifications of certain provisions of the Code as applicable to the proceedings under POTA Act. Without unnecessarily enlisting provisions as contained in sub-sections (1) to (9) of the said Section it can be said that the modification made to the provisions of the Code is specified. The glance at the same does not reveal any modification made to the provisions of grant of the pardon as specified under Sections 306 to 309 of the Code. Having regard to the same and POTA Court being a criminal court, the provisions of the Code would be applicable to the proceedings before it to the extent specified in Section 49 of POTA. Similarly the provisions of POTA considered in entirety does not reveal either specifically or by implication

242

conf.5.09

application of the Code being excluded to the proceedings before the said Court.

316.

We may now usefully refer to the decision in the case of

Harshad Mehta (supra) pointed out by learned APP. In the said case, the Apex Court while considering the powers of Special Court (Trial of Offences Relating to Transactions in Securities) Act 1992 to

accord the pardon after considering the provisions of the said Act and somewhat similar submissions as advanced in the present case pertaining to the provisions of Section 306; in paragraph nos.48, 53 and 62 observed to the effect :
"48. To our mind, the Special Court has all the powers of a Court of Session and/or Magistrate, as the as the case may be, after the prosecution is instituted or transferred before that Court. The width of the power of the Special Court will be same whether trying such cases as are instituted before it or transferred to it. The use of different words in Sections 6 and 7 of the Act as already noticed earlier also shows that the words in Section 7 that the prosecution for any offence shall be instituted only in the Special Court deserve a liberal and wider construction. They confer on the Special Court all powers of the Magistrate including the one at the stage of investigation or inquiry. Here, the institution of the prosecution means taking any steps in respect thereof before the Special Court. The scheme of the Act nowhere contemplates that it was intended that steps at pre-cognizance stage shall be taken before a Court other than a Special Court. We may note an illustration given by Mr. Salve referring to Section 157 of the Code. Learned counsel submitted that the report under that section is required to be sent to a Magistrate empowered to take cognizance of offence. In relation to offence under the Act, the Magistrate has no power to take cognizance. That power is exclusively within the Special Court and thus report under Section 157 of the Code will have to be sent to the Special Court though the section requires it to be sent to the Magistrate.

243

conf.5.09

It is clear that for the expression "Magistrate" in Section 157, so far as the Act is concerned, it is required to be read as "Special Court" and likewise in respect of other provisions of the Code. If the expression "Special Court" is read for the expression "Magistrate" everything will fall in line. This harmonious construction of the provisions of the Act and the Code makes the Act work. This is what is required by principles of statutory interpretation. Section 9(1) of the Act provides that the Special Court shall in the trial of such cases follow the procedure prescribed by the Code for the trial of warrant cases before the Magistrate. The expression "trial" is not defined in the Act or the Code. For the purpose of the Act, it has a wider connotation and also includes in it the pre-trial stage as well. Section 9(2) makes the Special Court, a Court of Session by a fiction by providing that the Special Court shall be deemed to be a Court of Session and shall have all the powers of a Court of Session. In case, the Special Court is held not to have the dual capacity and powers both of the Magistrate and the Court of Session, depending upon the stage of the case, there will be a complete hiatus. It is also to be kept in view that the Special Court under the Act comprises of a High Court Judge and it is a court of exclusive jurisdiction in respect of any offence as provided in Section 3(2) which will include offences under the Indian Penal Code, the Prevention of Corruption Act and other penal laws. It is only in the event of inconsistency that the provisions of the Act would prevail as provided in Section 13 thereof. Any other interpretation will make the provision of the Act unworkable which could not be the intention of the legislature. Section 9(2) does not exclude Sections 306 to 308 of the Code from the purview of the ct. This section rather provides that the provisions of the Code shall apply to the proceedings before the Special Court. The inconsistency seems to be only imaginary. There is nothing in the Act to show that Sections 306 to 308 were intended to be excluded from the purview of the Act." "53. As noticed, the provisions of Sections 6 and 7 of the Special Courts Act confer much wider power. Everything after institution of the prosecution is required to be done by the Special Court. there is nothing in those provisions or in Section 9 to warrant exclusion of Sections 306 to 308 of the Code from the purview of the Act. Reference may also be made to section 4(2) of the Code which stipulates that the investigation, inquiry and trial of all offences under any other law than the Indian Penal Code shall also be dealt with according to the provisions of the Code but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences."

244

conf.5.09

"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 that 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."

317.

Thus considering the provisions pertaining to the Special

POTA Court constituted under POTA and the powers conferred upon the said Court, on the same analogy, it can be safely said that the POTA Court is a Court of original criminal jurisdiction, having dual capacity as explained in the decision in a case of Harshad Mehta and particularly the paragraphs from the same referred herein above. Since power to grant a pardon principally relate to the provisions of Section 306 and 307 of the Code, it will be necessary to take into account the said provisions. 318. The same runs as under :
"306. Tender of Pardon to accomplice.(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

245 (2) This section applies to-

conf.5.09

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952(46 of 1952); (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon under subsection (1) shall record (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 subsection (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 case to the Chief Judicial Magistrate who shall try the case himself. 307. Power to direct tender of pardon. - At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any

246

conf.5.09

person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person.

319.

On perusal of the aforesaid provision, it is seen that pardon

can be granted at two stages i.e. at pre-cognizance stage and postcognizance stage. The same reveals that at the post-cognizance stage, in case of offences triable by the Court, to which the same are committed, the same is to be accorded by such Court under the provisions of Section 307 of the Code. The same also reveals that stipulation under Section 306 (4)(a) is for the purposes of the pardon accorded under the provisions of said Section. No such stipulation is found for the pardon accorded under Section 307 of the Code. Similarly considering the aforesaid provisions in light of the observations made in the decision in a case of Harshad Mehta, it can be safely said that POTA Special Court was fully competent to accord the pardon after taking the cognizance of the offences to be tried by the said Court. In view of the same no fault can be found with such order passed by POTA Special Court, Mumbai upon the prosecution

application Exh.P dated 5th May, 2004 i.e. post-cognizance of the offences for which POTA Special Case No.1 of 2004 was registered upon the charge sheet submitted by PW103 on 2nd of February, 2004. Similarly, the said application being rightly preferred under Section 307 of the Code, recording of the statement or his examination prior to

247

conf.5.09

the trial as envisaged under sub-section 4 (a) of Section 306 was not attracted.

320.

In the same context reference to the decision in the case of

Suresh Chandra Bahri (supra) relied by defence counsel and particularly the facts stated in paragraph no.31 of the said decision in terms reveals that in the said case pardon was granted under Section 306 of the Code by learned Chief Judicial Magistrate much prior to committal of the said case, but the learned Chief Judicial Magistrate did not examine the approver prior to committing of the said case. Similarly the reference in another decision in a case of A Devendran (supra) reveals that after committal of case, Sessions Judge had asked Chief Judicial Magistrate to grant the pardon. That is not the position in the instant case. The said decisions, therefore, cannot be said to be of any assistance to the defence. On the contrary the former decision relied by the Ld. A.P.P. fortifies the reasoning recorded aforesaid.

321.

As narrated earlier learned APP has also placed reliance

upon the decision in a case of Sardar Iqbal Singh (supra) for supporting the proposition that in the event of charge sheet being filed before Special Court, there would be no need to record the statement of the approver accorded pardon thereafter. The perusal of the said

248

conf.5.09

decision though supports the said proposition, still we are unable to accept that the same would be applicable to the present case as the said decision deals with a charge sheet submitted under the provisions of the Code of Criminal Procedure, 1890. However, we find that the observations contained in the said judgment in paragraph no. 6 clearly repels the submissions of defence counsel that in event of statement of approver being not recorded prior to his trial, then the defence would be deprived an opportunity to test his evidence qua such a prior

statement and resulting in prejudice being caused to the defence. The observations made in paragraph no.6 of the said judgment to the effect :

"In our opinion, there is no such qualitative difference in the two procedures; whether a witness is examined once or twice does not in our opinion make any such substantial difference here that one of the them could be described as more drastic than the other."

Having regard to the said observations and furthermore no pin-pointed submissions being made regarding the manner in which the prejudice was caused to the defence due to non-recording of statement of the approver after grant of pardon and prior to recording his evidence at a trial makes it difficult to accept the grievance tried to be made on such a count.

249

conf.5.09

322.

Thus examining from all the angles, we do not find any

substance in the submissions canvassed by learned defence counsel that non-recording of statement of PW2 has resulted in any serious lacuna in the trial or having devastating effect of vitiating the entire trial and/or due to the same the evidence of PW2 is liable to be rejected.

323.

In the context of the necessity for corroboration or the nature

of corroboration required , the learned APP has rightly pointed out the observations made by the Apex Court in a case of Narayan Chetanram Chaudhary vs. State of Maharashtra reported in (2000) 8 Supreme Court Cases 457 after considering the earlier decisions of the Apex Court since the decision of the Privy Council in the case of Bhuboni Sahu v. R reported in AIR 1949 PC 257, the Apex Court observed in paragraph no.37 to the effect:
"37. For corroborative evidence the court must look at the broad spectrum of the approver's version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration may depend upon the facts of different cases. Corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. Corroborative evidence must be independent and not vague on unreliable. Relying upon its earlier judgment in Suresh Chandra Bhari case this Court in Niranjan Singh v. State of Punjab held that once the evidence of the approver is held to be trustworthy, it must be shown that the story given by approver so far as an accused is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. Insistence upon corroboration is based on the rule of caution and not merely a rule of law."

250

conf.5.09

324.

The said decision further reveals that while considering the

evidence of approver in the said case with regard to the appreciation of the evidence, the Apex Court was pleased to observe in paragraph no. 42 to the effect:"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. In this regard this Court in State of H.P. v. Lekh Raj ( in which one of us was a party), dealing with discrepancies, contradictions and omissions held :(SCC pp.258-59, paras 7-8) "Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrotlike statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. this Court held

251

conf.5.09

that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person." Referring to and relying upon the earlier judgments of this Court in State of U.P. .v. M.K.Anthony, Tahsildar Singh v. State of U.P., Appabhai v. State of Gujarat and Rammi v. State of M.P. this court in a recent case Leela Ram v. State of Haryana held : 'There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.... The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.' "

252

conf.5.09

325.

The aforesaid principles regarding the appreciation of

evidence observed by the Apex Court were recited not only for the purpose of appreciating evidence of PW2 but also for using the same while appreciating the evidence of other witnesses in the present case. Thus, having regard to the discussion made earlier regarding the evidence of PW2 in the light of the defence submissions and so also in light of the principles stated hereinabove, we have no hesitation to say that his evidence deserves to be accepted and relied upon as hardly anything has cropped up in the record for discarding the same and/or not accepting the same.

326.

Without once again reproducing the matters from the

evidence of PW 2, it can be safely said that considering the evidence of PW 2 in light of other evidence adduced by the prosecution, it cannot be gain said that there is no corroboration to the evidence of PW 2. As discussed earlier, the limited role which was played by PW 2 in the conspiracy to commit the blast at Mumbai i.e. hatched at Dubai by the members of Lashkar-E-Taiba of which he was a member and

considering the facts and circumstances of the present case, it is difficult to perceive that any more corroboration was necessary for accepting his evidence, especially keeping in mind observations of Apex Court in paragraph no.37 recited hereinabove from the decision

253

conf.5.09

of Narayan Chetanram Chaudhary (supra).

Furthermore, without

narrating in detail regarding the corroboration received to the evidence of PW 2 from other evidence, it can be noted that fact of PW 2 residing at Dubai has been found corroborated from the record of his disembarkation Ex.P267 and the agreement Ex.P270 colly. produced by the prosecution. Similarly, his close acquaintance with Nasir and Nasir possessing credit cards and driving licenses as deposed by him is also found corroborated from the credit cards and driving licenses which were found on the body of encountered accused Nasir. Similarly, his evidence of Nasir possessing mobile phone is also found corroborated from the fact of Nasir being found in possession of mobile phone at the time of his death and the number of the said phone as established by the other evidence by the prosecution. Similarly, the matters spoken by him regarding the conspiracy and/or the role played of execution of a plan by A1, A2 and A3 are also found corroborated from the evidence led by the prosecution in the shape of confession of all the said accused and fact of one incident of attempt to commit explosion at M.I.D.C. Seepz and 3 incidents of explosion having occurred at Ghatkopar, Zaveri Bazar and Gateway of India being established by the other overwhelming evidence in the said respect adduced by the prosecution. In view of the same, it is difficult to accept the defence criticism that the evidence of PW 2 does not inspire

254

conf.5.09

confidence as the same lacks corroboration from independent evidence. At the cost of the repetition, it can be added that considering the law of conspiracy, it is difficult to discard the evidence of PW 2 on the count of his evidence not revealing himself having played any major role in the offences committed in pursuance of conspiracy hatched.

327.

Without once again reproducing the matters from the

evidence of PW2 recited earlier, it can be safely said that acceptance of the said evidence amongst other establishes said matters which are recited hereinabove. The said matters reveals the reason because of which he was knowing accused no.2 as well as Nasir, the different names used by Nasir, (Article 78) being credit card of Nasir of Citibank, Karachi, Pakistan and Credit Card (Article 70b) of ICICI Bank, Hyderabad. It also reveals the reason for which PW 2 had been to Dubai, the period for which he has stayed in Dubai and the period in which he had returned to India. It also reveals the details about mobile numbers / phone numbers of Nasir and themselves using the same for communicating with each other and the same being used by Nasir for communicating him about the blasts committed at Mumbai when PW 2 was in Dubai. It also establishes PW 2 Nasir, A1, A2 and the other persons referred by him being members of terrorists' organization Lashkar-E-Taiba and the activities in which the said organization was

255

conf.5.09

involved. It also establishes Nasir and A1 having underwent training for causing bomb blasts from the Commanders of the said organization. 328. Significantly enough the same also establishes the criminal

conspiracy to cause bomb blasts in Mumbai for which the present case is going on and the same being hatched at the house of Nasir at Dubai. It also establishes that plan of the same being executed by Nasir, A1, A2 and A3 and the material for the same being supplied by Abid, their Pakistani associate. The same also reveals the reason because of which earlier plan to commit blasts at Gujarat was changed and the blasts were committed at Mumbai. The same also establishes the reactions of the members of the said organization after failure of the incidents at Seepz and steps thereafter taken and so also their reactions after achieving the success in committing the blasts at Zaveri Bazar, Gateway of India. Confessions of A1, A2 & A3Recording and Matters from same Recording of Confession of A1 Hanif

329.

With regard to aforesaid, the evidence of Chief Investigating

Officer PW103 reveals that during interrogation made by him on 4-9-2003, A1 expressed willingness to give confession and he

256

conf.5.09

appraised about the same to Joint Commissioner of Police (Crime), Greater Mumbai, who vide his order dated 20-9-2003 directed Dy. Commissioner of Police, Zone-X Shri Vinod Lokhande PW-88 to record the confession of A1. The evidence of PW-88 reveals that after receiving communication regarding the same on 22-9-2003 and on the same day he sent letter to PW-103 directing him to produce A1 in his office on the same day and accordingly API Shri Phadake of DCB CID produced A1 before him in his office on 22-9-2003 at 5.00 p.m. PW-88 deposed that thereafter he asked API Phadake and other police staff to leave his office keeping A1 alone in the chamber and thereafter door of the office was closed to ensure that nobody other PW-88 and A1 remains in the office.

330.

PW-88 Shri Lokhande deposed that he informed A1 that he

was no more in the custody of DCB CID. He thereafter made inquiry with A1 by asking his name, parentage and other details and also questioned A1 whether he was threatened, tortured, enticed or pressurized by police for giving the confession and A1 replied in negative. He also asked A1 whether he was promised by police to become an approver or he would be given lesser punishment in case he gives the confession and same was replied in negative by A1. PW88 deposed that he explained the A1 that he was not bound to make a

257

conf.5.09

confession and if he makes the confession, it would be used as an evidence against him. He deposed that even after explaining to A1 the legal consequences of his giving confession, he did not deviate from his stand. PW-88 gave 24 hours time to A1 to think over on the point of giving confession and he thereafter directed Sr. PI of BKC Police Station to keep A1 in the lock-up of their police station under escort with a direction not to allow anybody to see A1 without permission of PW-88 and to produce him again before PW-88 on 24-9-03 at about 2.00 p.m. The evidence of PW-88 reveals that he has talked with A1 in his mother tongue i. e. Hindi language and asked the questions and the answers received by him were recorded as Part-I of the

confessional statement and same was signed by A1 and PW-88 i.e. at Exh. P-506.

331.

The evidence of PW-88 further reveals that as directed A1

was produced before him in his chamber at 2.30 p.m. on 24-9-2003 by PSI Bhalerao attached to BKC Police Station. PW-88 asked PSI Bhalerao and other police staff to leave his chamber and thereafter himself and A1 remained in the chamber of PW-88. He had ensured that except himself and A1, there was no other person in his chamber. PW-88 then asked A1 whether the time granted was sufficient for reconsideration of his decision to make the confession and A1 replied

258

conf.5.09

in the affirmative and said that he needed no more time for reflection. He again questioned A1 if he was threatened, tortured, enticed or promised by the police to make the confession and A1 replied in negative. It reveals that A1 was again explained that he was not bound to give the confession and in event of giving the same, the same would be used as evidence against him and A1 said that he was aware about the same. PW-88 has deposed that after asking few more questions to A1, he was convinced that A1 wanted to make the confession

voluntarily and thereafter he recorded the confessional statement made by A1 as per his version. PW-88 deposed that after the confession was recorded, the same was read over and explained to A1 by him and A1 admitted of same being as per his say. PW-88 thereafter put his signature below the confession of A1 and obtained his signature on each and every page and recorded certificate to the effect that A1 voluntarily gave the confession. The evidence of PW-88 reveals that he had signed at 19 places and taken signature of the A1 at 18 places on the second part of the confessional statement of A1 i.e. P-506-A. Exh.

The evidence of PW88 reveals after putting the entire

confession of A1 in a sealed envelop along with covering letter addressed to CMM , he has asked PSI Shaikh to produce the said letter and A1 before the learned CMM.

259

conf.5.09

332.

The perusal of confidential letter of CMM addressed to the

Special Court dated 26-9-2003 Exh. P-506-B reveals that A1 was produced before CMM by PSI Shaikh and handed over to him sealed envelop. CMM had thereafter asked PSI Shaikh and staff members to go outside the chamber and he called his stenographer in his chamber. After opening the sealed envelope at about 1.45 p.m. on 25-9-2003 CMM had read over the contents of the Part-I of the confession to A1 and he had admitted that the contents were written correctly and also admitted his signature on every page of Part-I of the confession, C.M.M. had thereafter read over the contents of Part-II of the confession to A1 and then A1 had told that the contents regarding hatching of the conspiracy in between him, Nasir and Jahid in the house of Nasir at Dubai of committing terrorist acts in Mumbai were not stated by him before DCP. A1 has specifically stated that contents from page No.5 onwards starting with the sentence Mai september 2002 Bharat vapas aate samay...... till the sentence i.e. lane me ek under construction building ke compound mai taxi ghumakar rokane ko kaha on page No. 15 were told by him to Shri Vinod Lokande. A1 also told that last sentence on page no.15 starting from "maine building ke bajuse jakar rickshawmese grey colour ki bag lekar meri bibi our betiyo ke sath taxi ke pas aaya" were not told by him to PW-88. A1 further told all the contents of Part-II of his confession read over to

260

conf.5.09

him on page No. 16 commencing with sentence "taxi driverne dicky kholi, maine dickyme bag (Khadi) rakhi" till the end of statement were recorded by DCP Shri Lokande as per his say.

333.

The perusal of the said letter reveals that A1 admitted of

making confessional statement before Police and further stated that it was made on his own accord without use of force, threat or any inducement and admitted his statement recorded by Police was true and correct except the said portions which were not told by him. The letter reveals A1 having expressed of not saying anything more and thereafter the original statement recorded by Polcie was resealed by CMM and sent to the Special Court in a sealed cover along with the said statement thereon recorded by CMM.

Recording of Confession of A2Arshad

334.

With regard to the aforesaid, evidence of PW-88 reveals that

after receipt of the order of the Joint Commissioner of Police (Crime) dated 10-9-2003 of recording confession of A2 he had sent letter to PW-103 directing him to produce A2 in his office situated at BandraKurla Complex and accordingly, on 11-9-2003 at 12.00 hours A2 was

261

conf.5.09

produced before him in his Chamber. P.W.-88 then directed escort party to leave his Chamber leaving A2 and himself as the only two persons in the Chamber. It reveals that PW-88 initially gave his introduction to A2 and questioned him about his family background and asked whether he was tortured by police and A2 negative. replied in

He also asked A2 whether police gave him threat or

inducement or he was pressurized or allured to give the confession and A2 replied in negative. P.W. 88 deposed that he also asked A2 whether he was promised by police to make him approver and he gave reply in negative. He further deposed that upon making inquiry about the purpose of producing him before PW-88 , A2 answered that he had informed the I.O. that he wanted to give confession and therefore he was produced by I.O. before PW88. The evidence of PW-88 reveals that thereafter he explained A2 that he was not bound to give the confession and if he gives the same it would be used against him as evidence and A2 told that he was knowing the same.

335.

The evidence of PW-88 reveals that he had asked A2 as to

why he was willing to give confession and A2 replied that he was accepting whatever he had done and he wanted to know the others as to why there was feeling in his mind to take the revenge. It further reveals that P.W.-88 asked A2 whether he required presence of his relatives,

262

conf.5.09

friends or Advocate while giving confessional statement and A2 replied in negative. PW-88 then gave him 24 hours time for

reconsideration. PW-88 had recorded Part-I of the confessional statement in the mother tongue of the A2 i.e. In Hindi language and had read over and explained the same to him and thereafter PW-88 had signed the same and obtained signature of A2 thereon and directed Sr. P.I. of Bandra Police Station to keep A2 in the lock-up of the BKC Police Station and produce him at about 1.00 p.m. on 12-9-2003. It reveals that Exh.501 is the said Part-I of the confessional statement dt. 11-9-2003 of A2.

336.

His evidence further reveals that A2 was again produced

before him at 1.30 p.m. on 12-9-2003 by PSI Pawar of BKC Police Station and he had asked PSI Pawar and other police personnel to leave his chamber. A2 was thereafter alone in his chamber with him and he asked A2 whether the time given to him for reconsideration

was sufficient and A2 replied in the affirmative. PW-88 then had asked A2 whether there was any pressure, inducement, coercion,

duress or threat for him to give confession and he replied in negative. He deposed of again having explained A2 that it was not binding

upon him to give the confession and if it was given then it would be used as evidence against him and A2 said that he knew the above legal

263

conf.5.09

position. It reveals that PW-88 was convinced that A2 voluntarily had become ready to give the confession and thereafter he started recording confession of A2 as per his say and after recording the confession had read over and explained same to A2 and A2 confirmed that same was written as per his say. It further reveals that thereafter A2 had signed on every page of the confession and PW-88 countersigned the same. PW-88 after completing the recording of confession certified that confession was given voluntarily by A2 and he had written the same as per say of A2 and A2 admitted the same being recorded it as per his say, The evidence of PW-88 reveals Exh.501-A being Part-II of the confession of A2.

337.

The evidence of PW-88 reveals that after recording the

confession of A2 he had kept the same in one envelop and sealed the same and along with forwarding letter Exh. P-502 addressed to CMM forwarded the same along with API Dilip Kale of BKC Police Station with direction to produce A2 along with the same before learned CMM.

338.

The perusal of Exh.501-A Colly. the note made by learned

CMM upon the confession of A2 reveals that A2 was produced by API Dilip Kale before CMM at his residence on 12-09-2003 at 11.30

264

conf.5.09

a.m. and A2 was asked whether he was having any complaint of illtreatment and he had replied in negative. CMM recorded separately statement of A2 and according to the same he had read over Part-I of the confessional statement Exh. 501 to A2 and each and every word therein was admitted by A2 saying that the whole statement was recorded as per his say. A2 had admitted of having made signature

on Part-I of the confession. CMM thereafter had read out Part-II of the confessional statement to Accused No. 2 recorded on 12-09-2003 running into 13 pages. A2 admitted his signature on each and every page of said Part-II of the confession. A2 however, disputed following portions respectively appearing on page Nos. 7, 8, 9 and 10 of Part-II of the confession. i.e. On page no.7 I asked Hanif as to who was Nasir and Hanif replied that Nasir was agent of Pakistan and he knows the technique of preparing bomb, who will teach us the same technique. I then asked Hanif why he was doing so and Hanif replied that he is doing everything to liberate Kashmir. Pakistan wanted that he should explode bombs at various places in Mumbai so that Indians should feel insecure in their country . On page no. 8 Nasir said us that this time he would explode bombs by giving challenge. I asked him why he would give challenge and if such challenge is given then we would be arrested by police. Nasir then said that he was having associates in abroad who would

265

conf.5.09

apprise journalists and media persons the fact of exploding bombs in advance . On page No. 9 There was already explosion in Ghatkopar area and if again explosion is made in that area then most of the people residing in that area who are Gujaraties would be panicked . On page No. 10. Likewise many persons residing abroad visit Gateway of India and if bomb blast is done on this place there would be terror in the minds of European and American persons, who visit the place. As a result of this, they would not visit India and India would be defamed in the international community . A2 admitted rest of the portion appearing in Part-II of the confessional statement when read over to him by learned C. M. M. A2 admitted his signature appearing on each and every page in Part-II of his confession.

Recording of Confession of A3

339.

With regard to the aforesaid, the evidence of PW-90 DCP

Mrs. Archana Tyagi reveals that on 22/9/2003 she had received letter (Ex. P-520) from Jt. C. P. (Crime) Mumbai directing her to record the

266

conf.5.09

confession of A3 and thereon vide letter (Ex. P-521) she directed PW-103 to produce A3 before her on same day and accordingly API Phadake and the staff members of DCB CID Unit No. IX produced A3 before her at 6.00 p.m. on said day. It reveals that she asked API Phadake and police staff to leave her chamber and instructed guards not to allow anybody to enter her chamber. She made A3 comfortable by asking her some questions about her family background. PW-90 also told A3 that she was not connected with the investigation of the case in any manner and apprised A3 that she was no more in the custody of the DCB CID and she was taken in personal custody of PW-90. It reveals that PW-90 asked A3 whether she had any

complaint against anybody and A3 said No .She further asked A3 reason of her production before her and A3 said that since she had expressed willingness before IO to give the confession and therefore she was produced before her for recording her confession. PW90 then asked her reason of giving confession and A3 replied that she had seen dead bodies and injured persons on television after the bomb blast and therefor she had decided to make the confession. Her evidence reveals that she had explained to A3 that she was not bound to give

the confession and if she gives it , then same can be used in the Court as evidence against her. Thereafter A3 said that she was knowing said legal position and still she wanted to give the confession.

267

conf.5.09

340.

The evidence of PW-90 reveals that she asked A3 whether

she was induced, coerced or threatened by anybody to give the confession and A3 replied in the negative. She also asked A3 whether she was promised by anybody that she would be made approver and A3 told that no such promise was given to her. PW-90 deposed that the answers given by A3 to questions asked by her made her to realize that A3 wanted to give the confession voluntarily. Her evidence shows that she had informed A3 that she would be given time for 40 hours for thinking over whether to give confession or not and in the meantime she would be lodged in the lock up of Chembur Police Station and would be called back again on 24-9-2003. It reveals that A3 was also asked by PW-90 whether she wanted to engage advocate or to keep present any of her relative or friend on 24\9\2003 at the time of recording her confession but A3 declined. PW-90 deposed that she recorded first part of the confession of A3 in her handwriting in the language known to A3 i.e. Hindi language in question and answer form and then obtained signature of A3 on each and every page of the confession and Exh. P-522 being the said part.

341.

The evidence of PW-90 reveals that A3 was later on handed

over by her in the custody of API Bhujbal of Chembur Police Station

268

conf.5.09

with instructions to take care that nobody meets A3 and directed Sr. PI of Chembur Police Station to produce A3 before her on 24-9-2003 at 11.00 a.m. vide letter Exh. P-523. It further reveals that as there was no lockup for female prisoners in Chembur Police Station, therefore A3 was required to be shifted in the lock-up of Ghatkopar police station and letter Exh. P-524 to that effect was sent to Sr. PI of Ghatkopar Police Station. The perusal of the same reveals that Sr. PI of Ghatkopar Police Station was directed by DCP Zone-VI, Mumbai that A3 should be kept in separate lock-up and special guard

consisting responsible lady constable be deputed on the lock-up and the guard deputed should be checked up regularly by Sr. PI and other officers.

342.

The evidence of PW-90 reveals that A3 as directed was

produced before her at about 11.00 hrs. on 24-9-2003 by API Bhujbal and staff members and thereafter A3 was taken in the chamber of PW-90 and API and other staff members were asked to leave the chamber. PW-90 and A3 were the only two persons in said chamber. It reveals that PW-90 then asked A3 whether the time granted to her for reflection was sufficient and A3 replied that she needed no more time for reflection. It reveals that PW-90 specifically apprised A3 that she was not bound to make the confession and if she makes the

269

conf.5.09

confession, then the same would be used against her as evidence. It reveals that PW-90 asked few questions to A3 to ascertain whether she was threatened or promised by anybody to give the confession and A3 replied that she was not promised by anybody to make approver and she herself decided voluntarily to give the confession. It reveals that Exh. P-525 is the copy of the written appraisal in Hindi language made by PW-90 to A3 that she was not bound to give the confession and if same is given then it would be used as evidence against her. PW-90 was confirm that A3 had decided to give the confession voluntarily and she thereafter started recording her confession as per her say. Her evidence reveals that she had scribed the said confession in Hindi language and after completing the same had read over and explained same to A3 and asked whether it was recorded as per her say and A3 replied that the confession was recorded as per her version. It reveals that A3 signed each and every page of the confession and PW-90 also counter signed each and every page of the confession and P-522A being the said confession. Exh.-

PW-90 deposed of thereafter

having recorded certificate at the bottom of Exh.-P-522-A to the effect that she was satisfied that A3 voluntarily made confession before her and same was recorded by her in the language of A3 and A3

admitted of the confession being recorded as per her version. P.W. 90 deposed of having made separate note below the confession to the

270

conf.5.09

effect that the work of recording confession of accused Fehmida was started at 11.05 hrs. and it was concluded at 18.45 hrs. on 24-9-2003. Her evidence further reveals that since the working hours of the Court was over therefore, it was decided to produce A3 before CMM on the next day i. e. on 25-9-2003 in the morning session and till that time arrangement was made to keep A3 in the lock-up of Ghatkopar Police Station.

343.

The perusal of Exh.-P-625 statement of A3 recorded by

CMM at 11.00 hrs. on 25-9-2003. reveals of A3 therein having clearly stated that she had no complaint of ill-treatment against Police and she had given confession before Police as per her own accord. A3 also made it clear that her confession was not obtained by use of any force and inducement and it was true and correct. The said statement Exh.P-625 is bearing signature of A3. CMM had sent the confessional

statement of A3 to Special Court under POTA vide covering letter Exh.-P-626. The perusal of the said covering letter reveals that A3 was produced before CMM by API Bhujbal of Chembur Police Station along with one sealed envelope, CMM had opened the sealed packet and thereafter asked API Bhujbal and escort party to leave his chamber. It reveals that thereafter CMM called his steno in chamber at about 11-20 a. m. and the contents of the confessional statement of

271

conf.5.09

Part-I and Part-II were read over and explained by CMM to A3 and she admitted to have signed both the statements. Contents of the Part-I and Part-II of confession were read over to A3 by CMM and A3 admitted that the same were recorded as per her say and contents were true and correct.

344.

In the context of the aforesaid evidence regarding confession

made by A1, A2 and A3, the reference to the first landmark exhaustive decision regarding provisions of TADA delivered in the case of Kartar Singh v. State of Punjab reported in 1994(3) SCC p.569 reveals the test laid down by Honble Apex Court regarding question of acceptance of said evidence. The same is found in the observation made in para-264 of the said decision to the effect that : Though it is entirely for the court trying the offence to decide the question of admissibility or reliability of the confession in its judicial wisdom strictly adhering to the law, it must, while so deciding the question should satisfy itself that there was no trap, no track and no importune seeking of evidence during custodial interrogation and all conditions required are fulfilled. (Emphasis supplied)

345.

Now before considering the submission advanced by the

defence regarding the aforesaid evidence and/or recording of confession of A1, A2 and A3 after perusal of the said evidence in

272

conf.5.09

entirety, we are unable to persuade ourselves of there being any trap, track and importune in collecting the said evidence by the investigating agency. We find that no foundation has been laid by the defence to persuade the Court to hold that the abovesaid confessions are the product of trap, track and importune seeking of evidence during custodial interrogation. It is noticed that all requirements before In view

recording of the respective Confessions have been fulfilled.

of the same judging the said evidence upon the said test laid by the Apex Court, it will be difficult to discard the said evidence.

346.

In the same context, now considering the events occurred

after production of each of the said accused before learned CMM and out of them only A1 and A2 having claimed that certain part from the said confessions were not narrated by them, it is difficult to accept that the said stand will deserve exclusion of the entire confession on the said count. In that, the material part of the said confessions of A1 and A2 being recorded in the manner as claimed by the recording officer i.e. PW88 DCP Lokhande and as such the event of recording of confession having taken place, it also supports the prosecution contention of the said accused having expressed desire to make the confession and thereafter steps were taken by the investigating agency for getting the same recorded. Similarly, A3 having not at all

273

conf.5.09

retracted her confession, signifies that her confession was recorded in the manner as claimed by PW90 and the document forwarded to CMM being the confession made by A3.

347.

In the aforesaid context, it can be further added that the

provision of production of confessing accused whose confession is recorded by the Police officer of high rank as permitted by the provisions of the Statute and the purpose behind the same being to provide an early opportunity to accused persons to give his say before an independent agency to ensure that confession made by him is not outcome of any trap, track or importune, and none of the A1, A2 and A3 having claimed any of that before CMM also lends assurance to the prosecution case of A1, A2 and A3 having made voluntary confession and the same was recorded by the recording officers. On careful consideration of the evidence of recording officer in entirety, as there is no indication at all as to why the Officer should have recorded the contents not told by the said accused and furthermore even there is no suggestion made to this effect to the said officer - having introduced such matter. We fail to understand how the defence submissions can be taken forward.

274

conf.5.09

348.

The learned defence counsel assailed the evidence in the

nature of confession mainly on two grounds i.e. there being violations of provisions of Section 32 (5) and Section 52 of POTA and as such the same has rendered that evidence inadmissible and/or the same deserves to be left out of consideration. Having regard to the same, it appears proper to have a look at the said provisions which read as under: "32. Certain confessions made to police officers to be taken into consideration--(1) ............. (2) ............... (3) ................ (4) ................ (5) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb-impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than an Assistant Civil Surgeon and thereafter, he shall be sent to judicial custody. "52.- Arrest ---- (1) Where a police officer arrests a person, he shall prepare a custody memo of the person arrested. (2) The person arrested shall be informed of his right to consult a legal practitioner as soon as he is brought to the police station. (3) Whenever any person is arrested, information of his arrest shall be immediately communicated by the police officer to a family member or in his absence to a relative of such person by telegram, telephone or by any other means

275

conf.5.09

and this fact shall be recorded by the police officer under the signature of the person arrested. (4) The person arrested shall be permitted to meet the legal practitioner representing him during the course of interrogation of the accused person: Provided that nothing in this sub-section shall entitle the legal practitioner to remain present throughout the period of interrogation." 349. The learned counsel for A1 and so also learned counsel for

A3 have urged that bare glance at the questions asked to both the said accused regarding proceeding taken by recording officer for recording their confession are identical. So is the submission of learned counsel for A2. It was urged that occurring of such resemblance in the

questions asked by two different recording officers and/or in all the said confessions speak volumes regarding the purported confession being not true outcome of the proceedings as claimed to have been taken by them and on the contrary same gives reasonable

apprehension of same being prepared by the investigating officer. We are unable to agree with the said submission canvassed. Inasmuch as, confession of A1 and A2 being recorded by same recording officer i.e. PW88 and the work to be effected by him for the same being of the same nature, the possibility of resemblance or repetition cannot lead to the conclusion as canvassed. Furthermore, even considering the said aspect qua A3 and taking into consideration the mandate of Section

276

conf.5.09

32, we find it difficult to accept the submission canvassed by learned defence counsel. All the questions are apparently asked for faithful compliance of the mandatory provisions. Occurrence of similarity in questions asked does not appear to be surprising. Further, considering the said questions asked one by one in each of the said confession and answer received also militates against this argument. The same is abundantly clear as after considering the answer received to an earlier question asked and same not at all denoting asking of any other question being necessary than the one asked thereafter.

350.

In the same context it can be further added that prosecution

having examined both the recording officer and the cross-examination effected on behalf of the defence has not shaken the evidence of these witnesses regarding the manner in which they have taken the proceedings, and/or the same also do not reveal any answer elicited therein supporting the said submission canvassed on behalf of the defence. We are afraid, it is not possible to accept the said submission or to come to the conclusion that recording of the said confession was a doubtful feature or the said confession are not voluntary confession made by each of the said accused or the same has been prepared by the investigating agency as urged.

277

conf.5.09

351.

The learned defence counsel urged that immediately after

recording of confession and/or after the production of the concerned accused before CMM , they were not sent to the judicial custody as mandated by Section 32 of POTA and thereby breach has been committed of the said mandatory provision rendering the said

confessions as inadmissible and/or unacceptable for any meaningful purpose and as such the same deserves to be discarded from consideration. The said submissions were duly refuted by learned APP by pointing out the events occurred in respect of each of the accused and by urging that the marginal delay occurred in making the

necessary compliance cannot be said to have resulted in breach of the provisions of Section 32 (5) of POTA. The learned APP heavily relies on paragraph no.157 of the decision of the Hon'ble Apex Court in State (N. C. T.) of India vs. Navjyot Sandhu, reported in 2005 All MR (Cri.) 2805 to the effect that . . . The lofty purpose behind the mandate that the maker of confession shall be sent to judicial custody by the CJM before whom he is produced is to provide an atmosphere in which he would feel free to make a complaint against the police, if he so wishes. The feeling that he will be free from the shackles of police custody after production in the Court will minimize, if not remove, the fear psychosis by which he may be gripped. The various safeguards enshrined in Section 32 are

278

conf.5.09

meant to be strictly observed as they relate to personal liberty of an individual. However, we add a caveat here. The strict enforcement of the provision as to judicial remand and the invalidation of confession merely on the ground of its noncompliance may present some practical difficulties at times. Situations may arise that even after the confession is made by a person in custody, police custody may still be required for the purpose of further investigation. Sending a person to judicial custody at that stage may retard the investigation. Sometimes, the further steps to be taken by the investigator with the help of the Accused may brook no delay. An attempt shall however be made to harmonize this provision in Section 32 (5) with the powers of investigation available to the police. At the same time, it needs to be emphasized that the obligation to send the confession maker to judicial custody cannot be lightly disregarded. The police custody cannot be given on mere asking by the police. It shall be remembered that sending a person who has made the confession to judicial custody after he is produced before the CJM is the normal rule and this procedural safeguard should be given its due primacy. The CJM should be satisfied that it is absolutely necessary that the confession maker shall be restored to police custody for any special reason. Such a course of sending him back to police custody could only be done in exceptional cases after due application of mind. Most often, sending such person to judicial custody in compliance with Section 32 (5) soon after the

279

conf.5.09

proceedings are recorded by the CJM subject to the consideration of the application by the police after a few days may not make material difference to the further investigation. The CJM has a duty to consider whether the application is only a ruse to get back the person concerned to police custody in case he disputes the confession or it is an application made bona-fide in view of the need and urgency involved. We are therefore of the view that the noncompliance with the judicial custody requirement does not per-se vitiate the confession, though its non-compliance should be one of the important factors that must be borne in mind in testing the confession. (Emphasis supplied).

Ld. A.P.P. urged that the emphasised portions from said observations eloquently indicate that in every case it is not the requirement of law that the accused must be sent to judicial custody. It was urged that the observations made in the last sentence itself reveals that the said directions given under Section 32 (5) though important, non-compliance thereof, is not fatal.

352.

The learned counsel for A2 urged that A2 was arrested in CR

No. 75 of 2003 in connection with Ghatkopar bomb blast still A2 has in his confession admitted his overt acts in connection with the bomb blast of Gateway of India, Zaveri Bazar and in a case of unexploded

280

conf.5.09

bomb at SEEPZ Bus Depot. He further urged that in view of A2 being not arrested in connection with other three cases of bomb blast then his confession in connection with said cases can not be said to be relevant and therefore the same cannot be acted upon. The said submission was refuted by learned APP by urging that involvement of the said accused by then being transpired in Ghatkopar case, he was initially arrested in the said case. She urged that the said accused thereafter having

disclosed his involvement in other cases during his confession is a feature indicating that the confession made by the said accused is voluntary. We find merit in the said submission and absolutely no substance in the submission canvassed by learned counsel for A2 in view of the decision of the Apex Court in the case of State of Gujarat vrs. Mohammed Atik and others, reported in JT 1998 (3) SC, page 60 wherein amongst other in paragraph no.6 it is observed that :

"Para. 6 : When there is no statutory inhibition for using such confession on the premise that it was not recorded during the investigation of the particular offence which is under trial there is no need or reason for the Court to introduce a further fetter against the admissibility of the confessional statement. It often happens that a confessor would disclose very many acts and events including different facets of his involvement in the preparation attempt and commission of crimes including the acts of his co-participators therein. But to expel every other incriminating disclosures than those

281

conf.5.09

under investigation of a particular crime from the ambit of admissibility is not mandated by any provision of law." Considering the above said observations, there is no merit in the defence submission that confession of A2 having been recorded during the investigation for crime registered for bomb blast occurred at Ghatkopar cannot be utilized for the matters disclosed therein regarding his involvement in the crimes registered for bomb blast at Gateway of India, Zaveri Bazar and attempt to cause an explosion at Seepz M.I.D.C. In addition to the same, it can be said that the matters in the said confession amongst other also reveal that the offences committed in the said four incidents being committed for achieving the object of the conspiracy hatched at the residence of A1 and/or all of them being committed in same course of transaction. Hence, the submissions under consideration will not deserve any credence.

353.

Learned APP thereafter invited attention to the evidence of

P.W. 103 Investigating Officer in Para-23 to the effect that A2 was produced before C.M.M. She urged that since the investigation in respect of the case was incomplete and he wanted to go to the root of the conspiracy and to verify the volume of the conspiracy, therefore he

282

conf.5.09

needed further custody of A2.

She urged that A1 to A3 after remanded till

production before POTA Court were then already

26-09-2003. Special Court considering grounds put forth by IO for making further investigation of the offence granted the request of the IO for extension of police custody. IO wanted to take further steps with the help of the Accused pertaining to the contents of the confession and therefore application of the IO for seeking extension of the PC of the Accused was bona fide considering the need and urgency involved in the matter. The Special Court had granted further police custody to Accused No. 2 till 26-09-2003. This is found from the relevant record pointed by her and after considering the said aspect the trial Court having concluded that there was no breach of sub-section (5) of

Section 32 of POTA, 2002 and furthermore the dictum in the decision in a case of attack on parliament of the Apex Court, we are unable to find any fault with the reasoning given by the trial Court and so also any substance in the grievance made on behalf of A2.

354.

Similar grievance was made by learned counsel for A1 and

A3. In that, after their (A 1 & 3) production before CMM they were not sent to the judicial custody and thereby breach of sec. 32(5) of POTA, 2002 had occurred. By pointing the record, learned APP urged that recording of confession of A3 was complete at 18.45 hrs. on

283

conf.5.09

24-9-2003 and on the next day i. e. 25-9-2003 at 11.00 hrs. A3 was produced before CMM and after recording her statement in which no grievance was made by her, she was given in the custody of API

Bhujbal and on the next day Special Court had remanded her to judicial custody. She urged thus at the maximum there was delay of one day in remanding her to the judicial custody. She urged up-till the said date i.e. up-till 26.9.2003 she was already remanded to police custody earlier by the Special Court. Similarly with regard to A1 by pointing out the record, the Ld. APP urged that confession of the said accused was recorded on 24.9.2003. He was produced before CMM on 25.9.2004 at about 1.45 p.m. and was produced before Special Court on 26.9.2003 and thereafter question of his custody was decided by Special POTA Court. She urged that said accused was also

remanded to police custody up-till 26.9.2003. She thus contended that even in the cases of both the said accused, they might not have been remanded to judicial custody immediately after recording their confession by CMM for marginal period. Learned APP further contended that hardly any grievance was made before POTA Court or even before CMM in respect of non-compliance of requirement of Section 32 (5) of POTA. She urged that thus no material is pointed out on behalf of the defence that the said partial non-compliance was for any oblique purpose and there being substantial compliance of the

284

conf.5.09

relevant provisions,

the same will not warrant discarding of the

confessional evidence of the said accused. After carefully considering the relevant record, we find no substance in the grievance made on behalf of the accused on similar count.

355.

With regard to grievance made by learned Counsel for A1,

A2 and A3 that there was violation of observance of the provisions of Section 52 of the POTA at the time of arrest, and due to the same their purported confessions are liable to be rejected. The learned APP, then relied on the observations made by the Apex Court in paragraph no. 164 from the decision in a case of State V/s. NCT of Delhi (supra) to the effect : "In our considered view, the violation of procedural safeguards under Section 52 does not stand on the same footing as the violation of the requirements of sub-Sections (2) to (5) of Section 32. As already observed, sub-Sections (2) to (5) of Section 32 have an integral and inseparable connection with the confession recorded under Section 32(1). They are designed to be checks against involuntary confessions and to provide an immediate remedy to the person making the confession to air his grievance before a judicial authority. These safeguards are, so to say, woven into the fabric of Section 32 itself and their observance is so vital that the breach thereof will normally result in eschewing the confession from consideration, subject to what we have said about the judicial custody. The prescriptions under Section 52, especially those affording an opportunity to have the presence of the legal practitioner, are no doubt supplemental safeguards as they will promote the guarantee against

285

conf.5.09

self-incrimination even at the stage of interrogation; but these requirements laid down in Section 52 cannot be projected into Section 32 so as to read all of them as constituting a code of safeguards of the same magnitude. To hold that the violation of each one of the safeguards envisaged by Section 52 would lead to automatic invalidation of confession would not be in consonance with the inherent nature and scheme of the respective provisions. However, we would like to make it clear that the denial of the safeguards under sub-Sections (2) to (4) of Section 52 will be one of the relevant factors that would weigh with the Court to act upon or discard the confession. To this extent they play a role vis-a-vis the confessions recorded under Section 32, but they are not as clinching as the provisions contained in sub-Sections (2) to (5) of Section 32." She has urged that the said observation makes it amply clear that violation, if any, of the said safeguards by itself would not warrant discarding of the confession made by the concerned accused. She urged that as observed by the Apex Court, the deficiency, if any, would be of no avail, while deciding the question of accepting and acting upon the confession made by the concerned accused. The learned APP further urged that in present case, no violation as tried to be canvassed by learned defence Counsel has taken place. She further urged that the evidence of PW 103 in terms reveal that substantial compliance of the said provisions was made by the investigating agency and as such even if there is some minor lapse on account of the same, the confession made by the said accused are not liable to be discarded. Learned APP,

286

conf.5.09

by taking us through the paragraph nos.112 to 117, 132, 133, 144 to 148 of the judgment of the trial Court, urged that after taking into consideration all the relevant aspects tried to be agitated before trial Court, trial Court had not accepted the submission of violation of the provisions of Section 52 of the POTA Act. She further urged that the evidence of Chief Investigating Officer clearly indicates that necessary instructions were given by him for following the procedure upon the lines as provided u/S. 52 of POTA Act. She further urged that the said directions being complied in spirit, some minor lapse on part of the subordinate officer cannot be said to be fatal to the prosecution as the said evidence also indicates that there was no intentional or purposeful non-compliance of the said provision. She further urged that hardly there exists any sound reason for finding any fault with the finding arrived by the trial Court regarding there being no violation of the said provisions.

356.

With regard to arrest of A2, as pointed out by the learned

APP, evidence of panch PW53 Sunil Bhatia in paragraph no.5 considered along with a discovery panchanama P-393/A in proper perceptive reveals that when A2, after his arrest at about 0820 hrs. on 31st August 2003 and making a statement leading to a discovery, had

287

conf.5.09

led the police and panchas to his house to Juned Nagar, Juhu Galli, Andheri, his mother and two sisters were present in the said house and as such they cannot be said to be not aware regarding the arrest of the accused. Similarly as pointed out by the learned APP, the evidence of panch PW 50 Mukund read with arrest panchanama Exh.385 reveals A2 being then informed of himself being arrested by the police in connection with the crime and the offences mentioned in the said panchanama drawn on 31st August 2003 at 2035 hours. Similarly with regard to the arrest of A1 and A3 as pointed out by learned APP, the evidence of PW 98 in paragraph nos.4, 5 and 6 on page no.2402 of the paper-book reveals that when A2 had led them to the house of A1, A1, his wife A3, their daughter Farin and another small girl of 5 years were present in the said house. The evidence of PW 98 in paragraph no.8 also reveals of having then told A1 and A3 of they were being arrested in connection with C.R.No.75/03 in bomb blast occurred in a BEST bus. It further reveals of PW 98 having disclosed his intent to take search of the house and offered his personal search. Somewhat similar position is found from panchanama Exh.P-393. As pointed out by the learned APP, the evidence of PW 103 in paragraph nos.11 to 14 reveals that after A2 was produced before him on 31st August 2003 and he had interrogated A2 and was satisfied about his involvement, he had contacted DCP (Detection) and as per his orders, taken up the

288

conf.5.09

investigation of Ghatkopar bomb blast case. He had directed PI Savde to prepare arrest memo regarding arrest of A2. He deposed of having informed A2 to engage Advocate of his choice. However he refused to engage any lawyer at that stage. His further evidence reveals of having informed PI Savde to contact the relatives of A2 and inform them about arrest of A2. He further deposed that accordingly PI Savde contacted relatives of A2 and informed them about the arrest. Somewhat similar position is also seen from the evidence of PW 103 pointed out by APP from paragraph no.14 of his deposition wherein he has deposed to the effect :

"14. On 1-9-2003 at 01.00 hrs. I again visited Kandivali Office. At about 03.00 hrs. P. I. Savde, his officers, staff came to Kandiwali Office alongwith arrested accused No.2 Ashrat Ansari and his three more associates by namely Sayyed Mohd. Hanif, his wife Fehmida and daughter Fareen. They all were produced before me.m I was informed by P. I. Savde that Sayyed Mohd. Hanif, his wife Fehmida and daughter Farheen were the associates of accused No.2 Ashrat. I interrogated them also. I asked them to engage any advocate of their choice, as it was their right to engage advocate. Hanif, Fehmida and Farheen declined to engage any advocate. I informed P. I. Savde to contact the relatives of Hanif, his wife Fehmida and their daughter Farheen. P. I. Savde told me that he had already informed son of Hanif and Fehmida, namely Irshad. Accused Hanif and Fehmida are present before the Court. (At this stage witness points out accused no.1 and 3 sitting in the dock at Sr. No.1 and 2 on the second bench.)"

289

conf.5.09

357.

Now considering the aforesaid evidence and the compliances

as stipulated by Section 52 of the POTA and the purpose behind stipulating such compliances, we find it difficult to accept the criticism of failure to prepare separate arrest memo and/or the person arresting the accused PI Savde being not examined by the prosecution, the prosecution has failed to establish compliance of Section 52 of POTA. The learned Counsel for the defence also tried to urge that Chief Investigating Officer has also observed of having not made entry of the relevant passage in case diary/station diary also reveals that his evidence in that regard is an improvement made by him. Even after

taking into consideration the said aspect and purpose behind stipulating said compliances, we are unable to accept the criticism and further submission that due to the same, the evidence of confession is liable to be discarded as the contemporaneous documents prepared soon after the arrest of respective accused persons do reveal the facts as pointed out by learned APP. In view of the same, it is difficult to accept that there was any intentional non-compliance on part of the investigating agency for detaining the said accused persons illegally for prolonged period after arrest for oblique purpose. Needless to add that while considering the aspect of the arrest of said accused, the stand taken by them before POTA Court also do not reveal any dispute being made by them regarding their date of arrest.

290

conf.5.09

Retraction :

358.

The accused having retracted their confessions during the

course of time, during the course of submissions ld. defence advocates emphasizing upon the same, urged that due to the said factor the confessions cannot be regarded as a useful piece of evidence unless the same are found corroborated by independent evidence. Hence it will be essential to consider the settled legal position about such an aspect. The same is found recited in the case of Subramania Goundan v.

The State of Madras, reported in AIR 1958 SC 66 wherein in para-14 the Honble Apex Court amongst other has observed:14. The next question is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts & circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being In re Kesava Pillai ILR 53 Mad 160: (AIR 1929 Mad 837) (B) that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this court on more occasions than one is that as a matter of prudence and caution which has sanctified

291

conf.5.09

itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated one of the latest cases being Balbir Singh v. State of Punjab (S) AIR 1957 SC 216 (C), but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts & circumstances discovered after the confession was made. It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. In this connection it would be profitable to contrast a retracted confession with the evidence of an approver or an accomplice. Though u/s.133 of the Evidence Act a conviction is not illegal merely because it proceeds on the uncorroborated testimony of witnesses, illustration (b) to S. 114 lays down that a court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. In the case of such a person on his own showing he is a depraved and debased individual who having taken part in the crime tries to exculpate himself and wants to fasten the liability on another. In such circumstances it is absolutely necessary that what he has deposed must be corroborated in material particulars. In contrasting this with the statement of a person making a confession who stands on a better footing, one need only find out when there is a retraction whether the earlier statement, which was the result of remorse, repentance and contrition, was voluntary and true or not and it is with that object that corroboration is sought for. Not frequently one is apt to fall in error in equating the retracted confession with the evidence of an accomplice and, therefore, it is advisable to clearly understand the distinction between the two. The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, general corroboration is sufficient when an accomplices evidence should be corroborated in material particulars. In addition the court must feel that the reasons given for the retraction in the case of confessions are untrue. 359. In the same context it would not be out of place to make a

reference to the earlier decisions in a case of Sarwan Singh Ratan

292

conf.5.09

Singh v. State of Punjab, AIR 1957 SC 637 : (1957 Cri LJ 1014) wherein the Honble Apex Court has similarly observed : "In law it is always open to the Court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case." (Emphasis supplied)

360.

Needless to add that the aforesaid decisions have

been

followed by the Honble Apex Court in Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1883 : (1989 Cr.LJ 1). 361. Now considering the aspect of retraction of the confession

made by A1, A2 and A3 in the light of the said guidelines, we find force in the submission of the learned APP that all the said decisions relate to the offences for which there were no stipulations as provided under the provisions of Section 32 of POTA Act for preventing misuse of recording of the confession by higher rank officers of investigating agency. From the said angle, learned APP was very much right in submitting that in view of the provisions of Section 32 (5) stipulating production of a confessing accused before Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, would be

293

conf.5.09

most relevant factor as the same would be affording an opportunity to concerned accused to state before the judicial authority whether purported confession was made by said accused voluntarily or otherwise. The learned APP was also very much right in submitting that making of such a provision was outcome of directions given by the Apex Court in the landmark decision of Kartar Singh (supra) for preventing misuse of the provisions of the TADA and/or all the laws legislated for preventing terrorists activities. Similarly we also find force in her submission that at such first available opportunity concerned accused having failed to make a grievance about his confession being not voluntary and being outcome of other things such as coercion, pressure, torture, etc., such an accused later on retracting his confession by itself would be indicative of the same being afterthought decision taken by the said accused for wriggling out of the situation created against him due to having made voluntary confession earlier. The learned APP further urged that this is precisely what has happened in the present case.

362.

The learned Counsel for A3 urged that A3 has retracted her

confession on 20-4-2004 which is placed on record as Exh.-D-8. It is the case of A3 in her retraction that Police had been to her house at about 7.30 p. m. on 30-8-2003 and they had thrown all the household

294

conf.5.09

articles outside the house and the family members of A1 and A3 were driven out of the house and it was locked. A1, A3 and their family members were taken to the office of Bandra Crime Branch where they were questioned. Since A3 could not reply to any of the question therefore she was slapped by the Police Officer. Her daughter Farheen was threatened that she would be made to lie on the ice. A1 was beaten. Police were forcing them to act as per their direction. After some days A3 was taken twice in the office of DCP where her signature was taken on some papers. It is further mentioned in the retraction Exh.-D-8 that she was threatened in the office of Bandra Crime Branch that her son and daughters would also be involved in bomb blast case if she refused to make signatures on the papers.

363.

It is important to note that no such stand was taken by A3 in

her examination u/sec. 313 of Cr. P. C. Besides, no explanation is offered as to why this retraction was and could not be made at the earlier stage. On the contrary, she had affirmed the contents of her confession. This leads to no other conclusion that the contents of retraction Exh.-D-8 are afterthought version of A3 made on the basis of legal advise after about seven months from the date of recording of her confession. Obviously, it is done only with a view to resile from her earlier confession and create doubt about the prosecution story.

295

conf.5.09

364.

It is further submitted that the minor daughter of A1 who

was subsequently discharged, was also arrested by police alongwith A1 and his wife. The minor daughter of A1 was arrested by DCB CID with an ulterior motive to put pressure upon A1 so that he can give confession as desired by the I. O. Therefore, so called confession of A1 cannot be considered as his voluntary statement. 364.1 The trial Court has rightly dealt with this submission being

devoid of any merit. For, A1, along with his wife A3 and his both the daughters had travelled from Andheri to Gateway of India in the taxi in which the bag of explosives was kept by A1 in the dickey and the same taxi was blown in the blast on 25-8-2003 at about 1.00 p.m. Thus the involvement of daughter of A1 viz : Farheen in the incident which led to causing explosion at Gateway of India was apparent. Hence I.O. was required to arrest her. However later on no further material showing her nexus with the offence of commission of terrorist act being found, she was discharged as per sec. 169 of Cr.P.C. 364.2 We have already dealt about A1 having admitted the

substantial matters from the confession made by him after his production before CMM. It is significant to note that on the second occasion, the A1 only disputed some of the sentences in his confession saying that those were not stated by him. We have already dealt with

296

conf.5.09

the same earlier. A1 having not retracted his entire confession at the earliest opportunity made available to him before CMM; and having failed to assert before CMM that he was under pressure because of the arrest of his minor daughter and constrained to give the confession as desired by the police, but having stated that his confession was not obtained by use of force, threat or any inducement, therefore, the above submission of Adv. Wahab Khan cannot be accepted for want of any material supporting such a stand. 365. It is further urged by Adv. Wahab Khan that A1 has retracted

his confession by sending letter Exh. D-7 dtd. 1-4-2004 to the Court and as such no reliance should be placed upon his purported confession. We find force in the submission of the learned APP that such a retraction being not made at earliest available stage and explanation being not given for making the same after six months leads to the plausible inference that it is afterthought. We, therefore, find that the stand of the defence in Exh.D-7 was rightly discarded by the trial Court. 366. Similarly, we find that after duly considering the matters

stated in the said Exh.D-7, dated 1-4-2004, made by A1, retracting the confession on the assertion that after returning to home at 8.00 p.m. on 30-8-2003 from the Mosque, he had found police engaged in search

297

conf.5.09

of his house and instead of disclosing reason for the same asked by him, they had handcuffed him and taken him along with his wife and daughters to the office of Bandra Crime Branch alongwith them and questioned about the Gateway of India and Zaveri Bazar blasts and had assaulted them and thereafter Mr. Rakesh Maria had slapped his wife as a result of which there was pain in her right ear and during police custody remand police officers had taken his signatures on blank papers and upon raising objection, he was threatened by police saying that his wife and daughters would be made naked in front of him and they would be made to sleep on ice. All this forced him to succumb to the demand of the police to give confession. Further, on one day he was taken before DCP Shri Lokhande who copied one typed matter in Hindi and had asked A1 to sign the same and then he was also told that his daughter would be released only after signing the papers which were already written and hence he had signed upon the confessional statement, etc. However, the trial Court found that said belated retraction does not deserve any credence.

367.

We are unable to find any fault with the reasons recorded by

the trial Court in paragraph nos.160 to 162 of the Judgment under consideration as the same are in consonance with the record. The trial Court has rightly pointed out that the matters stated in said application

298

conf.5.09

Exh.D-7 were not put to PW 103 during cross-examination nor such a stand was taken by the A1 during the cross-examination of PW 88 who had recorded his confession or for that matter during his examination u/S. 313 of Cr.P.C. The trial Court has duly taken into consideration that retraction was made by A1 after period of about 6 months. The trial Court has also duly taken into consideration that A1 who had examined himself on oath as DW 4, has not uttered about his grievance of A3 being slapped by Rakesh Maria as alleged in said application Exh.D-7 and so also many significant matters as culled out by trial Court in paragraph no.161. The trial Court has also duly taken into consideration that no complaint was made by A1 before POTA Court. Having regard to all these aspects, we are unable to find any fault with such a finding arrived by the trial Court. It is further significant to note that trial Court, during the reasoning given in paragraph no.162, had, amongst other, observed about the incident of interference made by A2 when A1 was answering the questions put to him by Spl.P.P. He had admitted in his cross-examination that he was read over his confessional statement date 24-9-2003 by Chief Metropolitan Magistrate and the disputed portion in his confession was noted by CMM and thereafter his statement was recorded by CMM which bears his signature; by telling him to answer properly after understanding the questions and then presiding officer being required to warn A2 not to

299

conf.5.09

interfere with the Court procedure.

The trial Court had further

observed that the said event revealed that A2 by his said objectionable conduct had restrained A1 from disclosing the true facts before the Court.

368.

Now, upon comparison of material contents in confession of

A1 with the matters contained in the confessions of A2 and A3, the same are in conformity. The evidence of PW 88 as pointed earlier

apart from having remained unshattered, is found supported by contemporaneous record made by him at the time of recording the confession. The same also bears certificate given by him below the confession of PW 88 being satisfied that A1 had made the said confession voluntarily. His evidence also reveals compliance of the procedural safeguards. The matters pertaining to the Gateway of India incident from the said confession are also found corroborated from the evidence of PW 15. Having regard to the same, we find it difficult to find any fault with the finding arrived by the trial Court in paragraph no. 163 of Judgment under consideration.

369.

The learned Counsel for A1, by inviting attention to the

answer given by PW 88 during the cross-examination that he had misunderstood the question of the cross-examining Counsel answered

300

conf.5.09

that the timings were in respect of A2 and not in respect of A1. It was tried to be urged that such answer was given by PW 88 after getting a clue/prompting from the Spl. P.P. and hence evidence of PW 88 deserves to be discarded. The Ld. Spl.P.P., by drawing attention to the reasoning given by the trial Court regarding the said aspect in paragraph no.165 of the Judgment under consideration, stated that for the reasons recorded therein, the trial Court had rightly discarded the said submission and no fault can be found with the same. After

carefully considering the evidence of PW 88 and the same revealing the position as pointed out by the trial Court in the said paragraph i.e. the mistake occurred while giving the answers to the questions asked due to misunderstanding of the same witness also having recorded confession of A2, was corrected by PW 88 and the deposition not revealing any circumstance that the same was corrected due to prompting made by the Spl.P.P., we find force in the said submission canvassed by the Ld. Spl.P.P. Inasmuch as it is not unknown that mistakes do occur from an honest witness due to stress of trial and in the instant case, such a possibility cannot be ruled out due to PW 88 having recorded confession of two accused i.e. A1 and A2. We have no hesitation in holding that the evidence of any witness is required to be appreciated as a whole and no conclusion can be drawn by truncating part of it and especially when his further deposition

301

conf.5.09

revealing that after realizing his mistake, he had corrected the same. Thus, we do not find any merit in the said submission canvassed by learned Counsel for A1.

370.

Similarly, considering carefully the reasoning given by the

trial Court in paragraph no.166 of the Judgment under consideration pointed out by the learned Spl.P.P., the trial Court has rightly not given any importance to omission of question put by PW 88 to make A1 aware that confession made by him would be utilized against him at the trial for charges or that he was authorized to record the confession u/S. 32 of POTA, etc. We do not find any fault either with the reasons given by the trial Court regarding the relevant aspect or for not giving credence to the said submission. Without dilating in detail about the said aspect, we only observe that deposition of PW 88 does not reveal that substantial compliance of procedure stipulated recording confession u/S. 32 of POTA was not followed. for

371.

With regard to the grievance made by the learned Counsel

for the A1 that in spite of the provisions contained in Section 32 of POTA, there was no bar for recording of confession of A1 by the Judicial Magistrate u/S. 164 of Cr.P.C. even though there was an opportunity for the Investigating Officer to get it recorded in such a

302

conf.5.09

manner and failure to do so is indicative of confession of A1 not being voluntarily made and/or the same being outcome of unfair procedure adopted by the investigating agency, we find that the said submission was rightly rejected by the trial Court. Assuming that two modes of recording confession are available under law for recording a confession of an accused involved in offence under POTA, merely because confession is got recorded by one of those modes, by itself, would not lead to the conclusion that the confession was not voluntarily madeunless cogent material to substantiate that the method adopted was for oblique purpose. No such evidence has surfaced on the record.

Needless to add that hardly any material has been brought to our notice indicating that recording of confession by the designated police officer was opted by the investigating agency for extracting the confession or with some sinister motive. Apart from the same, as discussed

aforesaid, even the method adopted was after compliance of all procedural guards for checking the mischief to be played, if any, and the evidence adduced does not indicate that the procedural guards contained in the provisions of Section 32 of POTA were violated in any manner.

372.

The evidence of PW 88 and perusal of Part-I and Part-II of

the confession of A1 discloses that he was explained by PW 88 that he

303

conf.5.09

was not bound to make any confession and that if he did so, it may be used as evidence against him. Notably, the confession of A1 was recorded in Hindi i.e. in the language known to him. Similarly, hardly anything has surfaced on record to come to the conclusion that the same was not recorded in free atmosphere. The same also reveals that after recording the confession, A1 was produced within 24 hours before Chief Metropolitan Magistrate, who recorded his statement which is placed on record at Exh.P-623. A1 at that time did not make any grievance against the police. On the contrary, he had told that his statement was not obtained by use of force, threat or any inducement. Such statement of A1 recorded by CMM on 25-9-2003 at Exh.P-623 was signed by A1 and counter signed by CMM. A1 had also not made any complaint of torture/coercion or inducement before CMM at the hands of police. The record also reveals that A1 was remanded to judicial custody on 26-9-2003 by POTA Court. Having regard to the said factors, we do not find any fault with the trial Court relying upon the said confession and acting on the same.

373.

Having found no merit in the defence submission canvassed

for discarding the confession of A1, A2 and A3 and found that learned APP has rightly submitted that confession of each of the said accused was voluntarily made by them and the same was properly recorded by

304

conf.5.09

concerned police officer of high rank authorized to record the same by following the procedure prescribed under POTA, it will be necessary to ascertain to the extent which the same are helpful to the prosecution for establishing the prosecution case. We would, therefore, mention the gist of confession made by each of the said accused.

374.

Firstly, considering the confession made by A1 the gist of

the same is as under : (i) It is stated by A1 that after leaving college education by him in the year 1982 he worked as Lathe Machine Operator and salesman at different places. A1 thereafter got job at Saudi Arabia as catering helper, where he worked till 1984 and returned to India. A1 then started playing rickshaw on hire in Mumbai. In the month of June-1985 A1 got job of helper in a hospital at Bagdad and returned to India from Bagdad in the month of August-1986 and thereafter started doing work of electrician in Mumbai. He again went Abroad i. e. Jeddah on 9-9-92 where he did the job of electrician till September-1999. In the month of August-2000 he started working as electrician in Dubai and after completing contract for two years, he returned to India in the month of September-2002. Since the month of October-2002 he is earning by plying the auto-rickshaw on hire bearing No. MH-02-H-2899 which is owned by his brother-in-law. (ii) It is stated by A1 in his confession that when he was working in Dubai he came in contact with Pakistani Nationals i.e. Safakat, Abid, Khalidbhai, Samiulla, Bilal and Rehan and two Indians viz : Jahid (PW-2) and encountered accused Nasir. A1 used to see above persons in Masjid at the time of Namaj. There used to be discussion in Masjid

305

conf.5.09

about the atrocities committed on the Muslims in Gujarat. Samiulla showed them CD pertaining to the atrocities on Muslims after Godhra Riot. After viewing the CD, Hanif said mere man me gusse ki aag bhadak gai. (iii) In the month of August 2002 A1, PW2 and the above Pak Nationals gathered in the house of encountered accused Nasir at Dubai for taking meal. Thereafter Pak associates of A1 motivated A1, PW2 and Nasir for doing terrorist acts by exploding bombs at various places in India for taking revenge of Godhra incident. Thereafter PW2 and encountered accused Nasir responded that they were ready to act accordingly for which they needed necessary funds and explosives. Safakat and Abid said them not to worry for funds and explosives. They promised to provide above things to PW2 and encountered accused Nasir. After discussion it was decided that A1, encountered accused Nasir and PW2 should collectively make effort along with their associates in India for exploding bombs in prominent crowded places at Mumbai so as to kill maximum number of persons. The above first talk of conspiracy for causing terrorist acts in Mumbai did take place in the house of encountered accused Nasir at Dubai in the month of August-2002. (iv) A1 returned India from Dubai in the month of September-2002. Brother of PW2 was residing in Mumbai. A1 delivered him a packet which was sent by PW2. The land-line number of A2 was given to A1 by PW2 which is 26240267. A1 called A2 to his home and thereafter they frequently started meeting each other. Encountered accused Nasir also returned India and in the month of October-2002 he contacted A1 and said him that he was residing in Sarvoday Nagar, Ghatkopar. Thereafter 15 to 20 days encountered accused Nasir again contacted A1 and both planned of exploding time bombs in taxi, Best Bus and trains in Mumbai so as to cause panic in the minds of the peoples as was conspired in Dubai.

306

conf.5.09

(v) In the last week of the month of November-2002, encountered accused Nasir came to the house of A1 and then A2 was also called there. Encountered accused Nasir disclosed them that he had brought all the necessary articles of preparing bomb and they would explode bombs in the local train, taxi and Best Buses as per their plan. (vi) On 2-12-2002 at about 4.00 p.m. encountered accused Nasir came to the house of A1 along-with one cloth bag which contained bomb made of gelatine sticks, timer and battery. A2 reached the house of A1 at 4.30 p.m. The cloth bag containing the bomb was kept on the loft of the house of A1. Pointing out the bomb kept in the cloth bag, A1 said to A2 that he would have to keep the said bomb in the Best Bus of route No. 312 at SEEPZ Depot. A1 and A2 thereafter left the house at 5.15 p.m. along with the cloth bag containing bomb so as to keep the same in the Best Bus of route No. 312 at SEEPZ Depot. After waiting on the Best Bus stop, Best Bus of 312 entered in the depot and then A2 with cloth bag in his hand boarded the bus and asked the A1 to leave the spot. A1 on the same day night at 10.30 p.m. watched the news on T.V. that one live bomb was found in the Best Bus of route No. 312. Thereafter A1, A2 and encountered accused Nasir came to know that bomb kept in the Best Bus was not exploded. In the second week of month of July 2003 A1 and encountered accused Nasir had been to Marol to a shop for purchasing prepaid SIM card of Airtel. Nasir purchased the SIM card in the name of Habib Omar which was bearing No. 9892077831. (vii) Nasir and A2 came to the house of A1 at about 4.00 p.m. on 27-7-2003 and all the three persons by using gelatine sticks and alarm clocks prepared time bomb for being kept the same in Best Bus of route No. 340 on the next day. A2 had been to the house of A1 in the evening of 28-7-2003. A1 asked his wife Fehmida A3 to accompany A2 for

307

conf.5.09

keeping the time bomb in the Best Bus of route No. 340. The above time bomb was exploded at about 21.10 hrs. resulting into the death of two persons and 60 persons became injured and property lacs of rupees was damaged. Nasir thereafter went to his native place at Hyderabad on 29-7-2003. He returned to Mumbai on 16-8-2003 in red colour Maruti Van and 4 bags were found kept in the dickey of the van and each bag contained 500 gelatine sticks. Nasir directly went to the house of A1 at about 10.00 p.m. and kept those four bags of gelatine on the loft of his house. At that time encountered accused Nasir said to A1 that they would cause powerful blast by using the explosive substances brought by him. On the next day A2 also called in the house of A1 and all the three persons planned to cause terrorist acts in Mumbai by exploding bombs in crowded places on 25-8-2003 at Gateway of Indian and in Zaveri Bazar. Spots of explosion were fixed by them on 24-8-2003 at Gateway of India and Zaveri Bazar. (viii) On 22-8-2003 encountered accused Nasir and A1 went at Marol to a shop for purchasing SIM Card. Nasir purchased the SIM card of Airtel in the name of Habib Omar and it was bearing No. 98902451164. The said SIM card was handed over by encountered accused Nasir to A1 and asked A1 to discontinue his earlier card. On 24-8-2003 A1, his wife A3 their two daughters and encountered accused Nasir hired a taxi saying taxi driver that they wanted to see tourist places in Mumbai. On above day encountered accused Nasir and A1 fixed a place i.e. Pay and Park site in front to Hotel Taj at Gateway of India, Mumbai for causing bomb blast in taxi a noon time on the next day. Nasir also asked A2 to carry the bag containing explosives in a taxi so as to cause explosion of bomb in Zaveri Bazar at about 1.00 p.m.on 25-8-2003. As per the above plan A1, his wife A3 and their both the daughters hired the same taxi from Andheri and airbag containing the time bomb was kept in the dickey. Thereafter taxi was taken to Colaba via Worli Sea-face, Hajiali,

308

conf.5.09

Pedder Road and time of 1.00 p.m. was set to the bomb so as to cause explosion in the taxi. A1 and A3 asked the taxi driver to park the taxi in pay and park site in front of Hotel Taj and keep waiting in the taxi till their arrival. Thereafter A1 and his family members left the spot and then A1 contacted Nasir on his mobile No. 98902451164. On the same day, at noon time, bombs planted in both the taxis were exploded at Zaveri Bazar and Gateway of India resulting in the death of several persons and many persons became injured. 375. The self eloquent highlighted matters from the above stated

gist of confession of A1 in terms disclose his involvement in commission of offences for which he is charged at the trial. Even accepting that confession recorded under Section 32 (1) of POTA being admissible at a trial only against the confessor, the said material in terms reveal A1 being party to the conspiracy to commit terrorists act in India by exploding bombs for taking revenge for alleged

atrocities committed upon the Muslims after Godhra incident. The same reveals that he had joined the said conspiracy in the month of August 2002 at the house of encountered accused Nasir and amongst other Pakistani Nationals were also involved in the said conspiracy and in pursuit of the said conspiracy A1 executed the plan in India while funds and explosive material required for the same were to be provide by said Pakistani counterparts Safakat and Abid to PW2 and encountered accused Nasir. Without repeating the said matters which

309

conf.5.09

are highlighted aforesaid, it can be said that the same in terms reveals the manner in which the conspiracy had progressed and targeted to explode the bombs which were fixed by A1 along with encountered accused Nasir and bringing of bag containing bomb to the house of A1 on 2/12/2002 and active participation of A1 in planting the same through A2 in Best bus Route No.312 on the stated day, though the same did not explode. Thus, the involvement of A1 in preparation of bombs along with his companions in his house on 27.7.2003 and his further involvement in planting the same through his wife and A2 in Best bus of Route No.340 is established. Similarly, his active

involvement in planting the bomb and causing explosion at Gateway of India is also disclosed from the said material. It also reveals his involvement in a plan to cause explosion at Zaveri Bazar. It also reveals his involvement and/or receipt of a mobile card purchased in the name of Habib Omar for utilizing the same for contacting with coconspirator. Needless to add, all the said material is in consonance with the prosecution case against him at the trial.

376.

We shall now consider the confession made by A2, the gist

of the same is as under : (a) A2 said that he took education up to 9th standard and after leaving the school in the year 1995 he started doing work of hand embroidery. In the year

310

conf.5.09

2001 he went to Surat where he worked for 6 months. After the incident of Godhra carnage there were atrocities on Muslims and, therefore, he left Surat and came to Mumbai. He then met with his schoolmate PW2, who was residing at B-104, Chandresh Upvan, Lodha Complex, Naya Nagar, Mira Road. PW2 was doing job of operator in one pipe factory in Dubai. A2 said to PW2 that he wanted to take revenge of atrocities which was being committed on Muslims in India and Abroad. Then PW2 said him that he would start his mission only after coming back A1 to Mumbai. (b) A1 returned India in the month of September, 2002. He contacted A2 on telephone. A2 was not in home but after coming to home he was informed by his family members that A1 gave his contact number as 28527761 and A2 was asked to contact him. Accordingly, A2 contacted A1 on above said number. A1 gave him the address of his house and asked A2 Ashrat to see him in his house. A2 reached the house of A1 in the evening of 29-11-2002. Encountered accused Nasir was already present there. Nasir disclosed them that they should explode bombs in Mumbai with a view to take revenge of atrocities on Muslims. At the instance of encountered accused Nasir, A2 went to the house of A1 at 4.30 p.m. on 02-12-2002. A plastic bag containing bomb was put in the cloth bag and then A2 and A1 went towards SEEPZ BEST Bus Depot for keeping the cloth bag containing bomb in the BEST Bus. Time was set in the bomb as 7.00 p.m. A2 boarded the BEST bus of route No. 314 (?) along with cloth bag and A1 left the bus stop. On the next day it was found that the above bomb was defused by police. (c) It was stated by A2 that A1, encountered accused Nasir and he himself made a plan to explode bomb in Ghatkopar area. He approached the house of A1 at 4.00 p.m. On 27-07-2003 and thereafter 45 minutes, encountered accused Nasir came there. A1, Nasir and A2 had been in the loft of the house of A1 and by using 44 gelatine sticks and detonators they

311

conf.5.09

prepared bomb. A1 asked A2 to take A3 with him for placing the bomb in BEST Bus of Route No 340. A3 became ready to accompany A2 for the above purpose. (d) As per the plan A2 and A3 went towards Andheri and boarded BEST Bus of route No. 340. They occupied back seat near window in the Bus and the cloth bag containing bomb was kept by them below the seat. They had obtained ticket for Asalfa, but they got down at Marol Pipe line Bus Stop. On the next day, they read in newspaper that two persons were died and 52 became injured in the incident of bomb blast in BEST Bus at Ghatkopar. (e) On 17-08-2003 encountered accused Nasir said A2 and A1 that henceforth they would explode powerful bombs at Mumbadevi and Gateway of India. On 23-08-2003 A1 asked A2 to see him at Andheri. A2 therefore on the next day i. e. 24-8-2003 went to Grill Market at Andheri where he saw A1 his wife and their both the daughters and Nasir. Nasir told him that they were going towards Gateway of India to select the place of planting the bomb and he asked A2 that he would see him in the evening. It is stated by A2 that he along with encountered accused Nasir went to Zaveri Bazar at 4.00 p.m. on 24-08-2003 and encountered accused Nasir selected the place of planting the bomb in a taxi and that place was in Zaveri Bazar Market. (f) On 25-08-2003 at 8.30 hours A2 went to the house of A1. After sometime encountered accused Nasir also came there. Thereafter they came on the road in front of house of A1 where Maruti Van of red colour was parked. Encountered accused Nasir took out two boxes from that van which contained bombs and time was fixed therein as 1.00 p.m. Thereafter 15 minutes A1 along with his wife A3 and two daughters came there in autorickshaw. They took one gray colour air bag from the van and thereafter A1 and his family members left the spot. A2 and encountered accused Nasir took out sky blue colour nylon bag from the

312

conf.5.09

van containing bomb and that bag was kept in the dickey of the taxi and taxi was taken to Zaveri Bazar. A2 asked the taxi driver to take the taxi near the place which was already selected by him and encountered accused Nasir. Since there was no place of parking on that place therefore taxi driver parked the taxi on the taxi stand. A2 said taxi driver that the person to whom the bag was to be given did not come there. He said the taxi driver that he would come back within short time as he wanted to purchase some goods. A2 left the taxi and he went towards Charni Road and after crossing the distance of about 200 meters, he heard the sound of bomb blast. He was, however, arrested by police in Juhu Galli on 31-08-2003. 377. Alike the matters emerging from the confession of A1, the

highlighted matters from the gist of confession of A2, also, in terms reveals his involvement in commission of offences for which he is charged at the trial. Even accepting that confession recorded under Section 32 (1) of POTA being admissible at the trial only against the confessor, the said material in terms reveal A2, his association with PW2 since schooling days, the manner in which and the reason for which he was required to come from Surat to Mumbai, how he

decided along with PW2 to take the revenge and how he became acquainted with A1 and active role played by him in planting bomb in Best Bus which however did not explode; his involvement in preparation of bomb on the loft of the house of A1, the planting of bomb in Best bus by boarding at Andheri along with A3, the role

313

conf.5.09

played by him in planting bomb in a taxi which he had got parked at selected place at Zaveri Bazar etc, himself being aware regarding planting of bomb at Gateway of India. Without repeating the said matters which are highlighted aforesaid, it can be said that the same in terms reveals the manner in which the conspiracy had progressed and targets to explode the bombs were fixed and plan was executed by him in association with other co-conspirator at three places and by A1 and A3 at Gateway of India. Needless to add, all the said material is in consonance with the prosecution case against him at the trial.

378.

We shall now consider the confession made by A3, the gist

of the same is as under : (A) It is stated by A3 that she along with her husband, son and two daughters is residing in room No. D-7 Salim Chawl, Chimat Pada, Andheri (East), Mumbai since last ten years. Her husband Mohd. Hanif (A1) is electrician and he is also earning by driving rickshaw. She said that her marriage took place with A1 in 1984. After the marriage, her husband was doing service as a wardboy in a hospital in Bagdad, Iraq. Again he went to Saudi Arabia where he worked as electrician during 1992-1998. He returned to India from Dubai in the month of September-2002. After returning to India he delivered a letter to A2 which was addressed to him by PW-2. Thereafter A2 and A1 started meeting Frequently. Encountered accused Nasir is the another friend of A1 whose native is at Hyderabad. On 2-12-2002 at about 4.00 p.m. Encountered accused Nasir came to the house of A1 along with one big envelope and, thereafter, A1 and encountered accused Nasir went

314

conf.5.09

on loft of the house. Thereafter half an hour A2 came there and then A1, A2 and encountered ccused Nasir left the house and returned home at 7.00 p.m. After watching the news on T.V. at 10.00 p.m. they came to know that police got one parcel of bomb in BEST bus and then A1 became disturbed. (B) In the last week of the month of July 2003 encountered accused Nasir came to her house along with one parcel and it was kept by A1 on the loft of his house. On the next day at 4.00 p.m. A2 came to the house of A1 and after half an hour encountered accused Nasir also reached there. A1, A2 and encountered accused Nasir sat together in loft and thereafter sometime all the three persons disclosed to both the daughters of A1 that Hindu people were doing atrocities on Muslims and, therefore, they wanted to take revenge by exploding bombs in Mumbai and after hearing this A3 and their daughters agreed to help them in their mission. It was thereafter decided that A2 should keep a bomb in BEST bus of route No.340 and A3 should accompany him in the above bus. As per the plan A2 and A3 went towards Andheri Station by rickshaw and at about 7.00 p.m. planted a bomb in BEST bus of route No. 340 below the last seat of the bus and obtained two tickets for Asalpha from the conductor, but both got down at earlier bus stop i.e. Marol Pipeline Bus-stop. After reaching home they saw the pictures of bomb explosions and the photos of injured persons on T.V. Nasir, thereafter, went to his native at Hyderabad. (C) After some days encountered accused Nasir returned from Hyderabad at night in the house of A1 and he was possessing 4-5 bags. All those bags were kept by encountered accused Nasir on the loft of her house. On the next day A2 came to the house of A3. They closed the door and discussed the plan of committing bomb blasts in a crowded place in Mumbai at Mumbadevi and Gateway of India. (D) Thereafter 3-4 days, encountered accused Nasir came to the house of A3 and disclosed that he had

315

conf.5.09

decided to explode bombs at Gateway of India and Mumbadevi on 25-8-2003. Prior to one day of 25-8-2003 A3 and her both the daughters Farheen and Sakira and encountered accused Nasir hired a taxi saying taxi driver that they wanted to see the tourist places in Mumbai. On 24-8-2003 they fixed the spot where bomb was to be exploded at Gateway of India. Thereafter, A3, her husband and their two daughters went to Juhu galli in auto-rickshaw where they saw encountered accused Nasir. Nasir asked A2 to see him in the evening and, thereafter, A2 left the spot. A1 and his family members were asked by encountered accused Nasir to stay in Azad galli. After sometime, encountered accused Nasir came there along with taxi. A3, A1 and their two daughters got into that taxi and taxi driver was asked to take the taxi towards Colaba. Encountered accused Nasir asked taxi driver to park the taxi in front of Hotel Taj in Pay and park area. After taking lunch in Bagdadi Hotel, all the said persons came to Andheri in the same taxi and asked taxi driver to come on the next day to go to Colaba. (E) After reaching A1 and his family members to his house, encountered accused Nasir came there after sometime. Encountered accused Nasir and A1 went to the loft and started preparing bombs. Encountered accused Nasir stayed in the house of A1 on the night of 24-8-2003 and on the next day early in the morning A1 and encountered accused Nasir got up and after taking two bags from the loft, they left the house and returned back after sometime. A2 came to her house at about 8.30 a.m. After having a cup of tea A2 and encountered accused Nasir left her house. A3, her husband and their two daughters went towards a lane of Rubi Coach Co. where encountered accused Nasir and A1 were found standing with one Maruti car. Encountered accused Nasir took out one bag from red colour Maruti car and handed over it to A1 and the said bag was placed by A1 in auto-rickshaw. A1 and his family members including wife and daughters by that rickshaw went to Juhu galli. On the way A1 said to his wife A3 that time of 1.00 p.m. was

316

conf.5.09

set in the bomb and the same time was fixed in the other bomb which was handed over to A2. (F) Rickshaw was parked in Barfiwala lane. A1 got down from rickshaw and went to fetch a taxi. The airbag containing bomb was taken out from the rickshaw and it was placed in the dickey of the taxi and the dickey was locked. Taxi was then taken towards Colaba via Hajiali, Pedder Road and taxi driver was asked to park the taxi in pay and park lot in front of Hotel Taj. While getting down from the taxi, taxi driver was seen chitchatting with his friend. At that time it was 12.35 hrs. and, therefore, A1 asked taxi driver not to waste the time and park the taxi in pay and park lot and be seated in the taxi waiting for themselves who would return within 15 minutes. (G) A1 hired another taxi and reached Santacruz at about 2.15 p.m. where he contacted encountered accused Nasir on PCO. Thereafter, the hired rickshaw and went towards their home at Juhu galli. After reaching home they saw news of bomb blast on T. V. After two days A2 came to their house to whom A1 gave Rs. 2000. When A1 was in the house on 1-9-2003 police came there and arrested A1, A3 and their both the daughters. A2 accompanied the police. Police took search of her house and they found explosive substances kept in the loft of the house and those were seized. 379. Alike the matters from the confession of A1, A2 the

highlighted matters from the above stated gist of confession of A3 who is wife of A1 also in terms reveals her involvement and active

participation in commission of offences for which she is charged at the trial. Even accepting that confession recorded under Section 32 (1) of POTA being admissible at a trial only against the confessor, the said

317

conf.5.09

material in terms reveal the manner in which A3 joined the conspiracy to commit the blast in Mumbai and her association with other coaccused at the instance of her husband A1. Amongst others, the said material reveals movements of A1, A2 and Nasir in the evening of 2.12.2002 on the loft of her house and themselves having left the same half an hour prior to 7 pm and having returned by 7 pm. It also reveals a parcel being kept by Nasir in her house on loft in month of July 2003. It further reveals how she was dragged in the conspiracy and herself having joined the same. Without unnecessarily repeating the said matters which are highlighted aforesaid, it can be said that the same reveals active role played by A3 along with A2 in planting the bomb in Best Bus Route No.340. It also reveals the plan being

hatched in her house for committing bomb blast at Mumbadevi and Gateway of India including active role played by her in making reconnaissances in selecting the place for commission of blast at Gateway of India and active role played by her on the next day along with co-conspirators. It also reveals in detail her movements and so also that of co-conspirators on the crucial day on 25.8.2003 and the same being directed to execute the plan hatched. Needless to add, all the said material is in consonance with the prosecution case against her at the trial.

318

conf.5.09

380.

Apart from conclusion reached earlier of the retraction made

by each of A1, A2 and A3 of the confession respectively made by them deserving no credence and/or the same being made by each of them for oblique purpose and/or with sinister motive, the truthfullness of the matter stated in the said confession is assured by the corroboration to the same received by independent evidence. Now with regard to nature of corroboration required for retracted confession for accepting and acting upon the same, the Apex Court in the decision in the case of Sarwan Singh (supra) has ruled that amount of

corroboration necessary would always be a question of fact to be determined in light of circumstances of each case. In the decision in the case of Subramania Goundan (supra), it is ruled that general corroboration is sufficient for accepting the retracted confession and the corroboration in the nature of material particulars as required for the evidence of approver is not necessary.

381.

Now,

applying the abovesaid

test and considering the

material in confession of A1, A2 and A3 in light of other prosecution evidence, we find there being sufficient material in the shape of independent evidence oral as well as documentary affording general corroboration to many of the matters stated in each of the said

confession. Since the same is apparent after considering the matters

319

conf.5.09

and the evidence which is adduced at the trial and found worthy of acceptance, we do not propose to enlist all the said evidence affording corroboration to the said confession. However, by way of illustration, we will advert to the corroboration afforded from the evidence of PW2, in relation to the matters stated in the said confession, to some extent the documents seized from the corpse of Nasir after his

encounter and so also the evidence led by the prosecution regarding occurrence of four incidents i.e. one attempt to cause explosion in BEST bus at MIDC Seepez , explosion occurred in BEST bus at Ghatkopar, motor taxi at Zaveri Bazar and Gateway of India dates , time and the manner in conformity with the matters stated in the confession and so also the evidence pertaining to purchase of Sim-card by A1 and Nasir from the shop of PW 4 and PW 5, and evidence pertaining to use of the said Sim-card by A1 and the co-conspirator for communicating with each other at the nick of the time of the concerned incidents as revealed from the confession of A1 and A2 so also of A3. Having regard to the corroboration received to the

relevant matters in the confession, we do not find any fault on the part of the trial Court in placing reliance upon the said confessions and acting upon the same.
Ist incident-2nd December, 2002 SEEPZ MIDC

382.

With regard to the aforesaid incident, it is the prosecution

320

conf.5.09

case that information was received on 2nd December, 2002 of a bag lying in suspicious condition below the rear seat in BEST bus no. MH-01-H-8765 of route No.336 near Seepz Bus Depot, MIDC, Andheri (East), Mumbai at about 21:40 hrs. the officers of MIDC Police Station, panchas and Bomb Detection Disposal Squad rushed to Seepz Bus Depot. PSI Girish Gode (PW 58) attached to BDDS by taking necessary care and precaution entered into the BEST bus and after wrapping suspicious article in bomb suit took out the same to open place and ascertained ingredients of the suspicious articles by using Cordex Method. After small explosion caused by using small detonator the cardboard box kept in the cloth bag was burst and time bomb made by means of wires and alarm clock was seen kept in said cloth bag. The panchnama (Exh.P-407) of said event was drawn by PSI Diwakar Sawant in presence of panchas Michel Francis D'souza (PW 56) and one Pravinchandra Rathod. The suspected article was encircled by sand bags and guards were appointed to protect the same. The same was later on defused by the team of National Security Guards called from Delhi on the next day. The parts of the bomb and other material consisting 14 gelatin sticks, one detonator, one battery, one alarm clock, one black washer, one electric button, pieces of sutali and plastic rope and other articles were seized by PSI Diwakar Sawant in presence of panchas Shri Ramsurat Shukla (PW 57) and Gopinath

321

conf.5.09

Joshi vide panchnama (Exh. P-410). The said seized articles were sent to the office of Forensic Science Laboratory, Kalina, Mumbai on 5.12.2002 and Exh. P-428 is the C.A. Report to that effect. Statement of witnesses were recorded by PI Wagh and thereafter the investigation into said C.R. was taken over by DCB CID vide C.R. No.157 of 2002. 383. The main witnesses examined by the prosecution for

establishing occurrence of the said incident as well as connection of A1 and A2 with the aforesaid incident for the sake of glance can be tabulated as under :

PW No.

Name

Page No. 2012Part II 2022Part II

Particulars Bus Conductor. Security officer of BEST, in his presence live bomb was removed from BEST bus by P.W.58 at Seepz Bus Depot. In his presence residues of defused bomb taken charge. Removed the live bomb from the BEST Bus at Seepz Bus Depot. Conducted T.I. Parade for A1 and A2.

55 Sanjay Patil (Complainant) 56 Michal Francis Dsouza (Panch)

57 Ramsurat Shukla (Panch) 58 Girish Gode (PSI attached to Bomb Detection and Disposal Squad) 59 Sudhir Surve (Special Executive Officer)

2027Part II 2035Part II

2037Part II

322

conf.5.09

60 Manoj Patil (Eye-witness) Disbelieved by Trial Court 61 Shankar Rewadekar (Starter- duty to assign work to BEST conductor) 62 Dilip Masaram (Bus conductor hostile) 63 Tanaji Jadhav (API, MIDC Police Station)

2053Part II

He was traveling in BEST Bus, identified accused No.1 & 2. Assigned work to conductor at Seepz Bus Depot. BEST Bus Conductor (Hostile) Registered FIR and drew spot panchanama.

2057Part II

2061Part II 2063Part II

384.

As observed earlier, the defence having not disputed finding

of an unexploded bomb in a BEST bus but having taken a stand that the prosecution has failed to establish the nexus of A1 and A2 with the said incident and that the same was planted in BEST bus bearing registration No. MH-01-H-8765 for route no. 336 as claimed by the

prosecution evidence. That the sole witness PW60 Manoj has spoken about the involvement of accused nos.1 and 2 of planting the said bomb. His evidence being unreliable, nexus of A1 and A2 is not proved beyond reasonable doubt. Further, the prosecution evidence does not establish that the said bombs were made up of gelatin sticks and alarm clock, as claimed by the prosecution. In the context of the defence submissions, it will be futile to discuss threadbare the evidence of other prosecution witnesses not connected with the said aspect.

323

conf.5.09

Needless to add that the prosecution witnesses tabulated hereinabove have deposed regarding the other matters as stated in the last column of the said table against the names of the respective witnesses.

385.

Now, we may turn to the prosecution evidence which is said

to have established the nexus of A1 and A2 with the aforesaid incident and so also the role as played by them, we do not propose to discuss threadbare the evidence of other prosecution witnesses not mainly connected with the said aspect. However, necessary reference to

evidence of said witnesses mentioned in the table hereinabove is made for appreciating the substance in the submissions canvassed by Mr. Pasbola, learned defence counsel for accused no.1 and Mr. Kunjuraman, learned counsel for respondent no.2 that the evidence of some of them had an effect of destroying the said evidence mainly relied by the prosecution.

386.

Firstly, taking up the evidence of PW60 Manoj, who is a

building construction contractor, the material part of his evidence reveals that on the relevant day i.e. on 2nd December, 2002 after finishing his work at M.I.D.C. Andheri at about 5.30 PM, he was waiting at the bus stop of bus root no.312 at SEEPZ for proceeding to Santacruz Kalina.

324

conf.5.09

387.

It reveals that within 5 to 7 minutes bus for root no.312

arrived at the bus stop and the commuters started boarding the bus. He deposed that two persons ahead of him in queue were chit-chating and he requested them to proceed further. One of them turned towards PW60 and said that if he was in hurry then he should hire a cab-taxi. The said person handed over a bag to other person. He started talking secretly with other person to whom he had given the bag, therefore, he was disturbed. PW60 requested both of them to proceed further early.

The person holding the bag boarded the bus. The other person who had given the said bag, stood as it is and did not board the bus. PW60 pushed the said person aside. PW60 asked the said person that if he does not want to board the bus, then why he was standing there. The said person did not board the bus. PW60 further deposed that after

boarding the bus, he found that said person holding the bag had occupied rear left side seat in the bus. He got seat besides that person and obtained ticket of Kalina from conductor. There occurred

altercation in between the person holding the bag and conductor regarding change of money. PW60 then changed his seat and occupied the seat in the front portion of the bus and got down at Kalina.

388.

Further part of the evidence of PW60 reveals that in the

325

conf.5.09

same night, he had to leave for Tasgaon by bus, as after reaching his home, he learnt that his uncle was seriously ill. After meeting his uncle at Tasgaon, he returned from Tasgaon on 4th December, 2002. In the newspaper, PW60 read about the bomb blast occurred in a bus at Ghatkopar (another bomb blast not connected with the incident in the present case) and one unexploded bomb being found in the bus for Route no.312. PW60 remembered the altercation occurred with the person while boarding bus Route no.312. He then on his own

proceeded to M.I.D.C. Police Station and informed about the said incident. Police recorded his statement. He gave description of the person who was sitting along with him with the bag and with the person who had not boarded the bus.

389.

PW60, during his evidence, expressed his ability to identify

the person who was holding the bag and sitting besides him in the bus and identified A2 as the said person. Similarly he identified A1 as the person who had not boarded the bus and who had shouted at him. PW60 also deposed of having identified A1 and A2 on 8th December, 2003 at Arthur Road Jail in test identification parade out of 14 persons standing in a row and two panch witnesses and one Special Executive Officer at the said place.

326

conf.5.09

390.

Now considering the said evidence of PW60 in the light of

the answers elicited during the cross examination, except eliciting certain details regarding the number of passengers standing in the queue, nobody standing outside the queue, himself preferring to sit near rear side door of the bus, many persons being behind him in the queue on the relevant day, age of 4 to 5 persons standing in the bus and himself being not aware of the registration of the said bus and on the said day having not travelled insignificant omission of by the bus Route no.336 and not stated in his statement

having

recorded by the police that bag of unexploded bomb was found in the bus for Route no.312, hardly any significant thing has been elicited

during the cross examination affecting the core of his testimony. During the same, it also brought on the record that the bus stop on which he was standing was meant for Route no.312 only. Similarly, the details about the test identification parade in which he had participated were brought on the record. PW60 promptly denied the defence suggestion of A1 and A2 being not the said person or no event as claimed by PW60 with regard to A1 and A2 had occurred on the said day in the bus. He also denied that A1 and A2 were shown to him in Crime Branch Office at Powai. He also denied of having been shown photographs of A2 in the newspaper with the police story. He also denied that at the instance of the police he had deposed and/or

327

conf.5.09

identified A1 and A2 and had thus having deposed falsely. Thus, the scrutiny of the evidence of PW60 does not reveal his claim regarding the events claimed by him qua A1 and A2 i.e. A2 having boarded the bus and he was given a bag by A1 and about the altercations occurred with PW60 and conductor have been shattered in any manner. Thus, upon fair scanning of the evidence of PW60, it has established the said relevant facts and particularly A1 and A2 being vitally concerned with the said bag which was brought in the said bus on the relevant day.

391.

Now we will consider the evidence of PW61. PW61 was

working as a Starter, on 2nd December, 2002 at SEEPZ Bus Depot. His evidence reveals that he was on duty since 1.35 pm. He deposed that on the said day bus bearing registration no. MH-01-H-8765 was for Route no.312 and was allowed to proceed at about 5.28 pm. It reveals that one Masaram (PW62) was Conductor and one Khupse was Driver on duty for the said bus. The said bus had returned at about 9.02 pm at SEEPZ Bus Depot. Significantly enough he has deposed

that the said bus for Route no.312 bearing such registration number was converted to bus for Route no.336. At about 9.10 PM the said bus was allowed to proceed and one Sanjay Patil (PW55) was Conductor and one Pawar was driver on the said bus. He deposed that the same has returned to SEEPZ Bus Depot at 9.40 PM.

328

conf.5.09

392.

The careful scrutiny of the answers elicited during the cross

examination of this witness also do not reveal any significant circumstance brought on the record during the cross examination, expecting the duties of the conductor regarding the checking of the bus, himself having not handed over any office record to the Police, by memory himself will not be able to tell the bus route allotted to conductor or driver or the registration of bus number about a year back. It was also brought on record that on the said day the bus bearing registration no. MH-01-H-8527 for Route no.336 had started from SEEPZ Bus Depot at 5.05 pm and returned at 8.45 PM. The said bus had a trip from Andheri, Ghatkopar and Seepz. PW61 was not able to tell the name of conductor allotted for the said bus for Route no.336 during his duty hours. After referring to the documents he deposed of the same being allotted at 5.44 pm to conductor Sanjay Patil (PW55).

393.

Now considering the fact that that unexploded bomb was

found in the bus for route no.312 bearing registration no. MH-01H-8765 i.e. occurring of an unusual thing, one which was lateron converted as a bus Route no.336 at about 9.10 pm supports submission of learned APP that due to same PW61 had reason to remember the details regarding the said bus. The same also supports her further

329

conf.5.09

submission that merely because PW61 had shown inability to tell the number of conductor and driver, who were on duty, and registration number of the buses one year back, cannot be construed as a circumstance affecting the claim staked by him during evidence regarding the bus in which unexploded bomb was found on 2nd

December, 2002. 394. The prosecution though had examined PW62 Dilip Masram,

who was the conductor for bus route no.312 for a trip at 5.28 pm, himself having not supported the prosecution with regard to the prosecution case that while he was standing at the rear door of the said bus and one person holding a dirty bag had entered inside the bus and the other person accompanying him had not boarded the bus, he had altercation with the said person with a bag on the point of not offering change while purchasing ticket, himself having identified the said person during identification parade, having given description of the said person while recording his statement etc., the learned APP being required to obtain the leave under section 154 of the Evidence Act and cross-examine the said witnesses, his evidence cannot be said to be useful to the prosecution for any significant purpose. Needless to add that the said witness was also not cross examined on behalf of the defence. However, it will be necessary to add that the said evidence is otherwise also not useful to the defence for any gainful purpose.

330

conf.5.09

395.

The evidence of PW 63 reveals that while attached with

M.I.D.C. Police Station, upon receipt of information about 10.50 pm on 2nd December, 2002, that one suspicious article like bomb was found in a bus at SEEPZ Bus Depot, he had been to the said depot. The said bus pointed by the conductor PW55 and Bus Inspector Rane was bearing No. MH-01-H-8765 for bus Route no.336 at the said bus depot. Further part of his evidence reveals about the steps taken

thereafter by BDDS office in recording of panchanama Exh.P-407 regarding the articles found, next day the same being inspected by NSG Staff in presence of panchas under panchanama Exh.P-410, the said articles being a bomb, himself having taken charge of the said articles after defusal. Significantly enough, he deposed of having

recorded the complaint of conductor in the said bus PW55 Sanjay Patil. He has also deposed of having sent seized sealed articles to C.A. vide forwarding letter Exh. P-428. During the cross examination, he

admitted of having not collected any record regarding the driver and conductor allotted to a particular bus at a particular root as according to him the same was unnecessary. The cross examination of PW63 does not reveal that any other further significant circumstance was elicited during his evidence.

331

conf.5.09

396.

The same is the case regarding the evidence of PW56 panch

in whose presence the bomb was removed from the bus by PSI Girish Ghode PW58 and PW57 panch Ramsurat in whose presence, residue of bomb defused was taken charge under panchanama Exh. 410. As

observed earlier, it appears unnecessary to dilate about the said evidence as the said fact is not disputed. However, it will be

significant to note that the said evidence in terms erroneously reveals that the said bomb was found in BEST bus bearing registration no. MH-01-H-8527. The evidence of PW56 being not found in

consonance with the number of the bus mentioned in panchanama Exh.407 i.e. bus number MH-01-H-8765, his evidence to that extent regarding number of bus in which bomb was found will have to be discarded. However, his evidence supporting the fact of bomb being found in the bus at Seepz is required to be taken into consideration.

397.

In the said context the learned defence counsel tried to urge

that prosecution having not declared the said witness hostile, his evidence would be binding upon the prosecution. It is difficult to accept the said submission as merely because on some minor point the witness due to slip or failure of memory or under the stress of trial incorrectly answers or deposes regarding a particular facet, the

332

conf.5.09

prosecution is not required to declare him hostile when by and large he has supported the prosecution case and the discrepancy being of trivial nature not affecting the other prosecution evidence adduced, as

observed by the Apex Court in the decision in a case of Bhanwar Singh and others .vrs. State of Madhya Pradesh, reported in [2008] 16 SCC 657 in paragraph no.68 to the effect :
"68 & 69 .... When implicit reliance is placed on eyewitnesses, some embellishment in the prosecution case caused by reason of evidence of any of the prosecution witnesses although not declared hostile by itself cannot be a ground to discard the entire prosecution case. Each case must be judged on its own facts. For appreciation of evidence, there cannot be any hard-and-fact rule. This aspect of the matter has been considered in Dharmendrasinh .vrs. State of Gujarat, wherein it was held : "16......She did go and on return as soon as she entered into the house, she raised alarm, this part of statement is supported by PW7 also, but for the fact that according to him on his arrival, he found no one else at the scene of occurrence. It would be a matter of minutes or a fraction thereof, if the accused had at once left the place by the other door, the moment he heard the alarm of PW3, PW7, though a neighbour, lives in a different house and by the time he reached, it is not unlikely that he may have missed the appellant who had left the spot. Therefore, on the basis of the mere statement of PW7 that on his arrival he found no one else it cannot be said that PW3 told a lie while stating that her husband had slipped away from the other door on hearing her cries. At the same time, we also find no good reason to suspect that she would falsely implicate her husband for the killing of their sons by someone else. The real assailants of her own children would not be spared." We are, therefore, in a position to rely solely upon the statement of Hakam Singh (PW17) in this behalf. Similarly, participation of Kripal Singh and Kuber Singh is also beyond any doubt. He came in the tractor having a gun. Kuber also came with a gun and fired a shot at Bhom Singh, Meharban Singh (PW22) and Babu Lal (PW23). The statement made in the first information report has been supported by Shiv Nath Singh (PW13), Hakam Singh (PW17), Ram Pratap Singh (PW18), Bhupinder Singh (PW21) as also Bharat Singh (PW24)."

333

conf.5.09

398.

Now coming to the last witness i.e. PW55 Sanjay Patil,

conductor of the bus bearing no. MH-01-H-8527. His evidence reveals that on the relevant day he was conductor on bus Route no.336 bearing registration no. MH-01-H-8527 for a trip from 5.05 pm to 8 pm. His material evidence reveals that again the bus started at 9.10 pm from SEEPZ Bus Stand and proceeded to Andheri and returned at about 9.45 pm. During checking of the bus, he had noticed suspicious thing below the last seat of the bus. His further evidence relates about the further steps taken and, thereafter, regarding the removal of the said bag etc. The said further evidence is in consonance with the prosecution evidence regarding the said events referred earlier. He had also deposed about the lodging of complaint marked as Exh. P-404.

399.

Upon the aforesaid evidence,

Mr. Kunjuraman, learned

Advocate for A2 has tried to canvass that PW60 is the witness planted by the police. He urged that surprisingly enough the main witnesses in the present case identifying A2 as a person involved in the concerned incident claimed of himself having seen and memorised A2 due to occurrence of some quarrel, scuffle or bickering with him. He urged that for the present incident and so also the incident at Zaveri Bazar it is claimed by concerned witnesses that A2 was the said person with whom they had such a quarrel. He urged that the such feature is

334

conf.5.09

deliberately introduced to advance the theory propounded by the investigating officer for affording reason for concerned witness to believe the accused involved in the incident i.e. for the present

incident PW60. It was urged that considering the evidence of PW60 in proper perspective, the same does not reveal that otherwise he had any reason to remember the said person sans the quarrel with him as claimed by him. He urged that hardly any corroborative material is

placed on the record for accepting the claim of PW60 that on the relevant day he travelled in the said bus. It was urged that police atleast could have seized the ticket from him to reassure his claim. It was urged that the reason advanced by PW60 for approaching the police clearly appears to be suitably concocted. It was urged that no corroborative evidence regarding the relevant aspect of witness having been to Tasgaon, Sangli etc. is placed before the court. Learned counsel stated that the evidence of PW60 was rightly disbelieved by the Trial Court and as such no error or fault can be found with the same.

400.

Learned counsel for A1 also made similar submission while

attacking the evidence of PW 60. Learned counsel for A1 urged that there is no consistency in the prosecution case regarding the bus in which the said bomb was found. He urged that the evidence of PW55

335

conf.5.09

reveals that the same was a bus for route no.336 and was bearing registration no. MH-01-H-8527. In the complaint lodged by him He thus

however mentions the bus being of no. MH-01-H-8765.

contended that as per oral evidence of PW55 the bomb was found in the bus bearing no. MH-01-H-8527. He further urged that the said evidence considered along with the evidence of PW60 reveals that the person with a bag has boarded bus for route no.312. He further pointed out that during the cross examination PW60 having admitted that he had never travelled by bus for route no.336 makes it difficult to accept that there is consistency in the prosecution case regarding the bus in which the bomb was found. He urged that if the bomb was found in the bus bearing registration no. MH-01-H-8527 for route no.336 then the entire evidence of PW60 regarding the event of some person with bag having travelled by bus route no.312 becomes redundant and as such on the basis of the said evidence no conclusion is warranted that A2 had kept the said bag in which the bomb was found and furthermore the same was given to him by A1 as claimed by the said witness. Learned counsel thus contended that the evidence of PW60 was rightly rejected by the Trial Court.

401.

Now considering the said submissions and firstly the defence

submission that the evidence of PW 60 must be discarded in toto

336

conf.5.09

because this witness is obviously a tutored and planted witness as he claims to have come in contact with the concerned accused and memorised them due to occurrence of some incident of quarrel with them. We are unable to accept this submission. Inasmuch as the incident in question did not occur at any private place or at any confined place. However, the same have occurred at public place i.e. at the BEST stop and in the bus (SEEPZ incident). The second incident of Ghatkopar is in the BEST bus and the third incident at Zaveri Bazar on road and fourth incident at Gateway of India at public parking place. Considering the said aspect and so also taking into account the reason behind occurrence of each of the said incident the same by itself cannot be said to be unnatural or improbable. Needless to add that the incident of occurrence of quarrel between the passengers either while boarding the bus or occupying the seat in a bus are not uncommon. The same is the case regarding the occurrence of incident between the pedestrian and the person travelling in vehicles either two wheeler or four wheelers. The same are also not uncommon. In view of the same, merely because the prosecution witnesses claim of such incidents having occurred at the relevant time, that by itself, cannot be sound basis to discard their testimony. It can be further added that the witnesses having given the evidence upon the relevant aspect on oath will have presumptive value of the same being true, unless the same is

337

conf.5.09

found

shattered

during

the

cross-examination

or

otherwise

unsustainable for some other reason. After carefully considering the cross-examination of PW60 effected on behalf of the defence, we are unable to accept that during the cross examination his claim was shattered or any other circumstances have been brought on the record for accepting the defence plea that the stated incident was highly improbable. discarded. 402. Now with regard to the second submission canvassed that Hence, the evidence of PW60 is not liable to be

PW60 had no sufficient time to observe the persons standing in front of him in a queue and hence identification made by him of A1 and A2 becomes highly improbable. We are unable to accept the said submission. The power of observation and memory differs from Hence, merely because there was a gap of

person to person.

occurrence of incident and PW60 getting opportunity to observe the culprit at the time of test identification parade held about ten months thereafter, by itself, would not be a good ground to discard his testimony for the same. In the said context, though there may be some substance in the plea canvassed that while standing in a queue, PW60 had initially no reason to pay attention towards two persons standing ahead of him in a queue, still after taking into account the further events which had occurred and the further fact that PW60 had occupied

338

conf.5.09

the seat by the side of the person who was holding the bag and also taking into consideration the time period for which PW60 was along with the said person i.e. at the stop before boarding the bus and in the bus, militates against the submission that he had no sufficient

opportunity to observe the said persons to remember them and identify them after such passage of time. Needless to add that taking into account the total period for which PW60 was at the bus stop and in the bus along with the said persons, it is difficult to accept that PW60 had only a glimpse of the said person. In view of the same and no other circumstance having surfaced on the record creating doubt in the mind about the identification by PW60 of A1 and A2 at the trial, the one which is found corroborated by prior identification made by him of A1 and A2 at test identification parade, we are unable to accept that his evidence is liable to be discarded on the said count.

403.

Now examining the reasoning given by the trial court

regarding the relevant aspect and found recorded in paragraph no.245 of the judgment the same is to the effect as under :
245. After reaching home PW-60 received message that his uncle was serious at his native place at Tasgon, Dist, Sangli. On the same night he proceeded Tasgaon by bus and returned back in the morning on 4-12-2002. He read news in the news paper about the bomb blast occurred at Ghatkopar and one unexploded bomb was found in bus route No. 312. PW-60 said that he immediately remembered the incident of altercation in between one passenger and conductor occurred in bus of route No. 312. Then he proceeded to MIDC police station and gave information

339

conf.5.09

regarding the above incident. This witness was summoned to attend TIP held at MCP on 8-10-2003. According to him out of the 14 persons standing in the row he identified accused Nos.1 and 2. It is important to note here that the reasons of identifying accused Nos. 1 and 2 have neither been stated by PW-60 Manoj Patil nor by SEO Shri Sudhir Surve in their evidence. The evidence of identifying witness PW-60 Manoj is thus vague and therefore such vague evidence cannot be relied upon. I therefore discard his testimony for the above reasons.

404.

In the same context considering the evidence of PW60

particularly mentioned in paragraph nos.9 and 10 of his examinationin-chief which is to the effect as under:"9. I will be able to identify the person who has holding bag and sat beside me in the bus. (At this stage witness points out Accused no.2 sitting in the dock, who tells his name as Ashrat.) I will be able to identify the person who did not board the bus and who shouted at me. (At this stage witness points out Accused no.1 sitting in the dock, who tells his name as Hanif). 10. I identified Accused No.1 and 2 on 8.10.2003 at Aurthur road Jail in T.I. parade, out of 14 persons standing in a row. The place at which T.I. parade was held, two panchas and one SEO were present."

405.

The aforesaid evidence clearly reveals that PW60 had not

only identified A1 and A2 in the Court but had identified A2 as the person who was holding the bag and who had sat besides him. He had further identified A1 as the person who had not boarded the bus and the one who has shouted at him. Significantly enough PW60 also deposed of having identified A1 and A2 at T.I. parade. Though it is true that he had not specified during his evidence the reason for the same considering his evidence in paragraph no.9, it is apparent that he

340

conf.5.09

had identified them as being the same persons as he had identified them in Court.

406.

In the said context reference to the evidence of PW59

Sudhir, Special Executive Officer reveals that he has deposed in detail about T.I. parade of A1 and A2 held by him on 8.10.2003 at Aurthur Road Jail for identifying witnesses PW60 and PW62. His evidence in paragraph nos.9 and 10 runs as under :
"9. I saw that the panch had brought the identifying witnesses to the parade room. I then asked the pancha to close the door of the parade room. I asked the name of the identification witness. He told his name as Manoj Ananda Patil. I asked Manoj Ananda Patil whether he identifies the suspects. Manoj Patil identified two suspicious who were standing in a row, by pointing them and touching them, I asked both the accused their respective names, they informed their names. 10. I asked Manoj Patil as to how he identified the accused persons. I noted whatever he stated in the memorandum. The suspects who were identified by Manoj Patil, are present today in the court, they are A1 and A2.

407.

In the same context the reference to the memorandum Exh.

P 415 squarely reveals that the reason for which PW60 had identified A1 and A2 at the test identification parade. Needless to add that the said reasons are in consonance with the reasons for which he had identified them at trial. Having due regard to all the aforesaid aspects, we have no hesitation to conclude that the Trial Court has manifestly erred in discarding the evidence of PW60 on the said count. We are of

341

conf.5.09

the opinion that PW60 has duly identified A1 and A2 at the trial. He also identified them at T.I. parade. Though he had not spoken in clear terms regarding the reason for which he had identified them at T.I. parade, in true sense the said fact is required to be established by the evidence of SEO who had held the said identification parade. SEO PW59 has deposed to that effect and amongst other deposed of having recorded the reason for identification told by PW60 in the memorandum of the parade Exh.P-415. The said memorandum duly corroborates the said claim staked by PW60 and so also establishes PW60 having identified them for the same reason for which he had identified them at the trial. Needless to add, acceptance of the said

evidence clinchingly establishes A1 and A2 being the same persons who were instrumental in bringing the bomb and plant the same ultimately by A2 in the bus.

408.

Now with regard to the submissions canvassed by Mr.

Pasbola of there being no consistency in the prosecution case regarding the bus in which the incident as claimed by PW60 had occurred or the bus in which the bomb was found. As already discussed, the evidence of PW60 in terms reveals that incident claimed by him had occurred in a bus for route no.312. It is indeed true that PW60 had not given registration of the said bus. However, it is highly unlikely for a bus

342

conf.5.09

passenger to remember bus number in which he had travelled. He is expected to recall the bus route number only. On the said count evidence of PW60 will not be liable to be discarded. PW60 was expected to tell route of the bus in which he had travelled and having deposed about that fact accurately, it leads to the conclusion that he has established the prosecution case that the incident had taken place in the bus route no.312.

409.

The evidence of PW61 reveals that during the relevant time

the bus for Route no.312 was bus bearing registration no. MH-01H-8765 and PW62 was the conductor in the bus. His evidence also establishes that the said bus was converted into bus Route no.336 at about 9.10 p.m. The evidence of the other witness i.e. PW63, 56, 57 and 58 undoubtedly establishes that the bomb was found in Bus No. MH-01-H-8765. In this backdrop, upon carefully considering the

evidence of PW55, it reveals that on the relevant day during earlier part in between 5.05 pm to 8.40 pm, he had travelled as conductor for bus route no.336 and the same was bearing registration no. MH-01H-8527. PW 55, no doubt, has deposed in paragraph no.3 again the bus started at 9.10 pm from SEEPZ bus stop. It is significant to note that his evidence specifically does not reveal that the same was Bus No. MH-01-H-8527. His evidence is wholly silent regarding the bus

343

conf.5.09

number or the route

on which he was placed for the said trip

commencing from 9.10 pm.

410.

Now considering his evidence in the light of first information

report, it appears that while lodging the same, he has erroneously given the bus number of his earlier trip. The same is apparent as he was not the conductor of the bus when bomb was planted. As a matter of fact, the other prosecution evidence unmistakably reveals that bomb was planted in BEST bus no. MH-01-H-8765 and at the time of planting the same was operating on route no. 312. The same bus was lateron

converted to route No. 336 whence, the suspicious article was noticed lying therein. PW55 who had operated as Conductor of bus No.

MH-01-H-8527 for route No.336 on the earlier occasion on the same day, therefore, while lodging the complaint pertaining to bus No.MH-01-H-8765 designated for route No.336 in the night time on which he was on duty must have given wrong number of the bus, as bus No.MH-01-H-8527. The evidence shows that he was on duty even on that bus prior to being assigned duty at night on the bus in question. Thus, considering the said evidence in its entirety, it is difficult to accept the defence submission to completely discard his evidence.

344

conf.5.09

411.

Now considering the evidence of PW58 referred hereinabove

the same is in consonance with the prosecution case regarding defusal of the said bomb. He has specifically deposed of having used cordex method and causing small explosion for bursting with the cloth bag. His evidence reveals that in a box there were 40 gelatin sticks, one detonator, one alarm clock and on/off switch. The evidence of PW63 PI Tanaji Jadhav reveals that at the relevant time he was attached with the M.I.D.C. Police Station and on 5.12.2002 he had sent all seized articles to the Chemical Analyser under forwarding letter Exh. P 427. He has also deposed of having received C.A. report regarding the same, being Exhibit P 428. The said C.A. report in terms reveal that the said articles were gelatin sticks. In view of the same, it is not possible to accept the submission that attempt to cause explosion was not made by using a gelatin by preparing crude bomb as found by PW58 in the said cloth bag before its defusal.

412.

Thus, considering the said prosecution evidence, it is

apparent that, by the same, the prosecution has, amongst other, established that : (a) on 2nd December, 2002 at 11.40 hours a bag

containing a Crud Bomb made up of geletine sticks, alarm clock and detonators was found planted below the

345

conf.5.09

rear left seat in BEST bus No. MH 01 - H 8765 of then for Route No.336. (b) on the same day, the said bus had operated for Route No.312 in the evening time in between 5.30 to 8.30 pm and during the said trip the said bag was planted in the said bus. (c) the bag containing same bomb was brought at

Andheri Bus Stop for Route No.312 by A1. (d) A2 had boarded the said bus and A1 had handed over the said bag to him. A2 had occupied rear left side seat in the said bus. (e) A2 had left the said bag leaving the bag in the bus. (f) A2 or A1 had never came forward to claim the said bag left in the said bus.

413.

All the said circumstances taken together persuade us to hold

that a formadible chain leading to sole inference that the said bag was planted in the said bus by A1 and A2 with an intention to cause an explosion in the said bus i.e. for commission of terrorist act and as such A1 and A2 are guilty for commission of offences by committing such act.

346

conf.5.09

414.

Even accepting the submission that on relevant day many

passengers had travelled by the said bus such an inference is inevitable after considering the true import of the aforesaid circumstances in the light of observation made by the Apex Court with regard to the in the case of State of U.P. Vs. Ashok

circumstantial evidence

Kumar Srivastava reported in AIR 1992 SC 840 in paragraph no.9 wherein it is observed :
9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise........... (emphasis supplied)

415.

Needless to add that in spite of many passengers having

travelled by the said bus such an inference is inevitable, in view of the evidence of having surfaced pointing to the involvement of only A1 and A2 and the same could have been planted by none other than A2. Such conclusion would not be far-fetched and fanciful hypothesis.

347

conf.5.09

That contra contention of the Accused

requires to be rejected.

Therefore, the submission to absolve the appellant on the said count will have to be rejected.

416.

The aforesaid inferences are further fortified after taking

into consideration matters spelt from the confession of A1 and A2 regarding which we have already reached to the conclusion that the same are true and voluntary confession made by the said accused. Needless to add that the confession of A2, of which gist is given earlier, squarely reveals his involvement amongst other in plantation of the said bomb in pursuance of the conspiracy hatched, in the BEST bus at Andheri. Even the case regarding the role played by A1 is also

disclosed from his confession is no different.

417.

Thus, considering the said prosecution evidence in its

totality, it will have to be held that an attempt to cause an explosion by using explosive substance in a BEST bus bearing registration No. MH-01-H-8765 by A1 and A2 has been duly established. The finding given by the trial court to the contrary effect is not sustainable. The same deserves to be set aside.

2nd incident-28th July, 2003 at GHATKOPAR

418. With regard to the aforesaid incident, it is prosecution case

348

conf.5.09

that the first information of the said incident of explosion occurred on 28th July, 2003 at 21:10 hrs was lodged by bus conductor Shri Dilip Wankhede (PW 54). That was recorded by PSI Shri D.N. Jadhav of Ghatkopar Police Station. The investigation of the said Crime No.235 of 2003 was carried out by the officers of Ghatkopar Police Station from 28.7.2003 to 31.8.2003. The situation prevailing at the scene of the offence was recorded by PI Shri R.C. Patil (PW 47) in presence of panchas by drawing scene of offence panchanama (Exh. P-380). At the time of the said Panchanama, rear portion of the BEST bus including the last bench was found completely damaged and only angles were seen in the rear side body of the bus. Blood stains were found on the seats of the bus. Pieces of glasses of the bus were found scattered on the spot. As a result of the above explosion the BEST bus of route No. 7 as well as three auto rickshaws, two motorcycles and one Qualis Jeep and nearby buildings were also found damaged. Pieces of tins, metal pieces, currency notes and coins, pieces of glasses, mobiles, walkman, pencil cell were found scattered on the scene of offence and said articles were seized. Alluminium pieces of BEST bus and glass pieces found scattered on the spot were sent to FSL, Kalina, Mumbai. Blood sample was taken from the spot. Corpse of (1) Vilas Vishnu Mahendrakar and (2) Shiva @ Hubalal Jagatdev Yadav were sent to Rajawadi Hospital for autopsy and accordingly the same were

349

conf.5.09

carried out by the Medical Officer at the said place. . All the injured persons were admitted in various hospitals and their statements were recorded by the officers of Ghatkopar Police Station. Medical certificates of the injured persons and the postmortem reports of deceased persons were collected from the hospitals.

419.

The main witnesses examined by the prosecution for

establishing occurrence of the said incident as well as connection of A2 and A3 with the aforesaid incident for the sake of glance can be tabulated as under :

P.W. Name No. 46. Anil Mulchand Vishwakarma

At Page No. Particulars and evidence regarding onwards /Part of Paper Book 1896 -Part II Passenger travelling by bus in which blast had occurred. Eye witness. Identified A2 and A3 in T.I. parade held by PW52 at Arthur Road Prison. Drawn Spot Panchanama Exh.P-380 Relative of deceased Vilas Vishnu Mahendrakar Injured in the incident For arrest and personal search of A2 on 30.5.2003 Arrest and personal search of A2 Memorandum panchanama regarding statement of A1 regarding the shop from which 2 Sim cards were purchased by Nazir. Identification parade of A1 to A3 for incident in question. 3 memorandum panchanamas regrading

47. 48. 49. 50. 51.

P.I. Ramesh Changu 1911- Part II Patil Sambhaji Tambare Kalpesh Gala Panch -Mukund Ingulkar PSI Pramod Toradmal 1923 - Part II 1924 - Part II 1925 - Part II 1930 - Part II

52. 53.

SEO Waman Sapre Panch Sunil Bhatia

1935- Part II 1959 - Part II

350

conf.5.09

recovery of articles from the house of A1 and A2. 54. 97. Bus Conductor Dilip 1994 - Part II Wankhede PSI Vankoti 2395 - Part II First informant regarding the incident. Declared Hostile. Memorandum panchanama regarding recovery of Geletine sticks detnoters and alarm clocks from the house of A2 Memorandum panchanama regarding recovery of Geletine sticks detenoters and alarm clocks from the house Seizure of document from house of A1 and A3 and so also about their arrest. Memorandum panchanama regarding recovery of Geletine sticks from the house of A1

98.

PSI Talekar

2401- Part II

99.

PSI Kandalgaonkar

2410- Part II

420.

As observed earlier, the defence has not disputed occurrence

of explosion or persons having sustained injuries, two persons succumbing to death and damage caused to the property. The defence has taken stand that prosecution evidence fails to establish the nexus of A2 and A3 with the said occurrence and/or the same having occurred due to use of gelatin in preparing crud bomb, as claimed by the prosecution. Thus, it will be futile to discuss threadbare the evidence of other prosecution witnesses not connected with the said challenge. Needless to add that the prosecution witnesses tabulated hereinabove have deposed regarding the matters as stated in the last column of the said table mentioned against their names.

421.

Now, we shall consider the prosecution evidence which is

351

conf.5.09

said to have established the nexus of A2 and A3 with the occurrence of the aforesaid explosion. The prosecution heavily placed reliance on the evidence of PW-46 Anil who travelled as a passenger by BEST bus on Route no.340, while returning after his work from Andheri, by the said bus, which had exploded. In the context of the evidence of PW-46 considered as a whole along with other evidence on record, particularly that of first informant/complainant Conductor of the said bus PW-54 Dilip Wankhede and that of PW-47 PSI Ramesh Patil who had drawn spot panchanama Exh.P-380, we are in agreement with the submission of the learned APP that PW 46 mistakenly mentioned that he returned by BEST bus Route no.304. Inasmuch as the spot panchanama prepared by PW-47 mentions number of the damaged bus as MH-01-H-8246 and the bus Route no.340. Same is the evidence of PW-54 Conductor of the said bus, who, though was declared hostile and cross-examined by the prosecution, at least part of his evidence regarding route of the bus involved has remained unchallenged during the course of the trial.

422.

Now, material part of the evidence of PW-46 runs as under :"When, I boarded in the bus, bus was filled with crowed, but one rear seat on the last bench was vacant. I had sat by the side of the window on right side, at that time one man and one women entered in the bus. That woman had requested me to that she wanted to sit on window side. I thought that they are husband and wife

352

conf.5.09

hence, I had shifted and accommodated them to shift on window side on the last bench in the bus. They were having bag in their possession that bag was kept beneath the seat of the bus. After the bus had proceeded for some time, the person had came towards me pushing me so, I had said "Bhaisab Dhaka Mat Maro" That person replied "Tere Akeliki bus nahi hai". Our talk had increased because of such reply. Then that woman said "Bhaisab Maph Kijiye Galti Ho Gai". Then that man and woman had alighted from the bus at Marol Naka Stop. The bag continued to remain beneath the seat."

423.

His further evidence reveals the manner in which he had

moved ahead in the bus for alighting and occupied vacant seat in the front portion of bus and then heard loud noise of blast from the back side of the bus. He felt deafening and was unable to hear anything and for some time was unable to see due to the blast. His further evidence recites regarding treatment taken by him at Rajawadi Hospital and recording of his statement on 29.7.2003 at the said Hospital. He had also given description of the said man and woman who were seen by him in the bus i.e. the persons who had left the bag beneath the seat. He identified A2 as being the said person. It is significant to note that though initially he expressed his inability to identify the lady, lateron identified A3 after she was asked to lift Burkha from her face. Significantly enough while identifying her, PW-46 deposed that she had Burkha but while sitting she had removed the cloth from her face and hence he (PW-46) remembered her face.

353

conf.5.09

424.

During the further part of his deposition he deposed of

having identified both the said accused on 1.10.2003 in the identification parade held in jail in presence of Magistrate and two panchas. PW-46 deposed of having identified the male persons i.e. A2 out of 14 persons and A3 woman from amongst seven persons.

425.

The scrutiny of the evidence of PW-46 does not reveal any

significant material has been elicited during the cross-examination by the defence affecting the core of his testimony about the persons who had boarded the said bus for route no.340 with a bag and had alighted at Marol Naka stop and at that time the bag kept by them beneath the seat had continued to remain at the said place. After carefully

considering the answers given by PW-46 during his extensive cross examination effected by A2, A3 and A5, there appears substance in the submission of learned APP that there is no challenge to the fact deposed by PW-46 that he was a passenger of the said bus or that the incident as claimed by him had not occurred. On the contrary, some of the questions asked are of nature of confirming the presence of PW-46 in the said bus. Without enlisting each of the questions posed to PW-46, the answers elicited during the cross-examination effected on behalf of A2 reveals that he was questioned whether same was first

354

conf.5.09

incident of his life to give window side seat to the woman. He had candidly admitted the same. He was thereafter questioned about his education and about his carpentry. However, hardly anything has been extracted for not accepting his say regarding said aspects. He

was also questioned whether he had become friendly with the lady and the male person after giving a seat, he denied the same. The answers given by PW46 regarding the reason because of which he had given the seat to the said couple, whether he was in the bus until the explosion, reveals that his claim regarding the same has remained unshattered. The perusal of his cross-examination reveals that,

during cross-examination, his claim of having shifted from rear side towards the front portion prior to occurrence of explosion, also has remained unshaken. The same is the case regarding his claim of PW46 has given a

having seen the said couple while alighting.

plausible answer during the cross-examination that his attention was then drawn towards them, as he had to accommodate them for getting down. It has also surfaced during the cross-examination that he had not approached the Police for giving a statement but the Police approached in the hospital where he was admitted due to the injuries suffered by him due to the blast. All the answers given by PW46 to the questions put to him regarding his recording of a statement or receiving a treatment or reason for going ahead in the bus for alighting, the

355

conf.5.09

reason for he wanted to get down at Ghatkopar when he was residing at transit camp at Vikhroli etc. have remained unshaken during the crossexamination, rendering his testimony reliable. Needless to add that PW46 has also denied that police made him to give false evidence due to himself being victim of blast or having identified A2 due to Police having shown him photograph of A2 which had appeared in the newspaper.

426.

Similarly, careful scrutiny of answers elicited during the

cross-examination effected by A3 and A5 also are no different. It discloses that, PW46 during the cross-examination was searchingly cross-examined regarding his claim of having gone for carpentry work at Andheri. However, none of the answers given by PW46 to the questions about the place at which he had gone for work, the person who had given the said work, the reason for himself getting the work , the time for which he had been for work and/or had boarded the bus for returning etc., have shaken his evidence in any manner. Similarly, the answers given by PW46 to the questions asked to him generally about number of passengers in the bus for the said route or fare for the journey also do not reveal any of them has an adverse effect of not accepting the claim staked by him.

356

conf.5.09

427.

During the said cross-examination PW46 was threadbare

questioned regarding number of passengers then sitting on the last bench, about his location, and the location of the woman with Burkha clad and the person accompanying her to whom he had given the window seat. However, nothing has surfaced on the record to doubt said claim staked by PW46 in his evidence. The same is the case regarding questions put to him during the cross-examination regarding the course of journey of the bus after he had boarded the same. It is significant to note that regarding the questions asked about the bag left in the bus, it has surfaced that PW46 had seen the bag kept beneath the seat (kept by the said person) not after bus reaching Ghatkopar telephone exchange as suggested to him by the defence, but soon after the said person had alighted the bus. PW46 also answered during the cross-examination that he had told about the same to the Conductor and Conductor had asked in the bus as to whose bag was it, but nobody had owned the same. Similarly careful consideration of the questions asked to PW46 regarding having moved in the front side in the bus, the answers received for the same also do not reveal of the same causing any adverse effect upon the claim staked by him. The same is the case regarding the answers received regarding the questions asked about the manner in which the said man and woman

357

conf.5.09

had alighted from the bus from the front side and the place at which they had alighted.

428.

Furthermore, it is most significant to note that during the said that face of said

cross-examination it has surfaced on the record

Burkha clad woman was open when she had sat by the side of window and while getting down from the bus. After careful consideration of all answers regarding those matters, it do not reveal that any contradictory claim was staked by PW46. Without dilating upon the further answers received during the said cross-examination effected regarding the aspect of treatment taken by him at Rajawadi Hospital, the period required for the same regarding recording of his statement and his participation in T.I. parade etc., the same also do not have any effect of affecting the core of his testimony of having identified as A2 and A3 being the said person who had boarded the bus with a bag, and had left the bag behind while alighting as claimed by him.

429.

In the context of the evidence of PW46 , it will be necessary

to say that the evidence of PW52 Shri Waman Sapre reveals that on 1.10.2002 at Bombay Central Prison he had held T.I. parade for A1 to A3 for identifying witnesses PW46 and PW54. Exh.P-389 is the memorandum of the said parade during which PW46 had identified

358

conf.5.09

A2 and A3 as stated in the said memorandum.

After carefully

considering the evidence of PW52, we are of the considered opinion that his evidence corroborates the evidence of P.W.46. In order to

maintain the continuity of the discussion, we do not propose to discuss the reasons for the same at the present stage and leave the said aspect for discussion at the appropriate stage.

430.

The reasoning given by the Trial Court for not accepting the

evidence of PW-46 and discarding the same in toto is found recorded in paragraph 252 of the judgment, which reads as under:
"It is stated in the memorandum Exh.P-389 that on 28.7.2003 at about 9.00 p.m. one person and female in veil were alighting hastily from BEST bus of route No. 340 at Marole Pipeline stop. At that time PW-46 was pushed by them and on that count there was altercation in between the said person and the woman and P.W.-46. Evidence of PW-46 is silent on the said incident of altercation and pushing of PW-46 by the couple while alighting at Marol bus stop. There is thus material discrepancy in the recitals of the memo Ex.P 389 and the evidence of P.W.46. Evidence of PW-46 lacks in material particulars. His evidence is completely vague and therefore it can hardly be relief upon. I therefore place no reliance on his testimony."

431.

Now examining the same in the light of evidence of PW-46

already referred to hereinabove which, as held by us, has remained unshaken - clearly reveals that the reasoning given by the Trial Court that the evidence of PW-46 is silent on the incident of altercation etc.

359

conf.5.09

does not stand to reason. Rather, it is contrary to the evidence on record.

432.

Similarly, examining the memorandum of test identification

parade dated 1.10.2003 at Exhibit-P-389 and particularly relevant part therein of the reason given by PW-46 for identification of accused Nos. 2 and 3 who were paraded, the same runs as under : (at page 1946-1947 of paper book Part II regarding A2) "Sambadhit ismas hat lavun olkhale va sangitale ki dinak 28.7.02 roji ratri sadharan nau vajnache sumaras Andherivun Ghatkoparla janara 340 marg kramankachya busmadhe Marol pipeline stop javal ha isam va tache sobat chehra ughada aasleli ek burkhadhari mahila ghai ghaine utrat aastana tachya dhakka mala laglane tachyi mazha barobar bachabachi zali. To isam hach aahe aase mhanun oolakhale. Tyla tache nav vicharale aasta, tyane aaple nav Arshat Shafiq Ahmad Ansari aase sangitale. Dusrya sambadhit ismas oolkhale nahi." (at page 1948 of paper book Part II regarding A2) "dinak 28.7.03 roji sadharan 9 va. sumaras Andherihun Ghatkoparla janari bus marg kramank 340 madhe Marole Pipe Line stop javal ek isam va sobat chehra ughada aasnari burkhedhari mahila ghai ghaine utrat aastana ja ismabarobar tachya dhakka lagun bachabachi zali tyaveli tache sobat chehara ughada aasnari burkhedhari ti hich aahe aase sangun olkhale. Tila tiche nav vicharle aasta tine aaple nav Phehimida Sayyad Hanif aase sangitale."

360

conf.5.09

433.

Having regard to the same, there appears substance in the

submission of learned APP that the evidence of PW-46 was erroneously discarded by the Trial Court. Instead, the same deserves to be accepted. Such a conclusion is inevitable after considering the reason for which the witness could identify the two accused. The details of altercations and/or incident occurred and/or variance therein regarding the incident occurred and the matter stated in the memorandum of parade contemporaneously prepared by the SEO reinforces the evidence of PW-46. Suffice it to observe that

considering the evidence of PW46 in its entirety, the same definitely reveals of having identified both the said accused in the Court and so also at T.I. parade and the reason for identifying them as revealed from his evidence and so also that of SEO PW52 reveals of themselves being involved in leaving/planting bag (containing a bomb) in a bus.

434.

Now reverting to the evidence of PW-54 (complainant)-

Conductor of the bus involved in the explosion, his evidence reveals that on the relevant day he was on duty at bus route no.340. It further reveals that he had boarded the bus at Andheri bus terminal and 59 passengers had boarded the bus at Andheri bus stop at which the said bus was taken from the said terminal by the driver. He has further deposed regarding the route by which the bus had proceeded further.

361

conf.5.09

Significantly enough he deposed that from starting bus stop at Andheri one lady in veil (burkha) occupied the last seat on the right side of the bus. He has further deposed that when the bus was at Asalpha bus stop, he did not find the lady in veil in the bus. He has further deposed that she was the only lady who was in the veil in the bus. He further deposed of bus having proceeded to Ghatkopar pipeline. His further evidence relates to the blast occurred, himself being unconscious, admitted in Rajawadi Hospital for 20 days and having received injuries to legs, ears, face and head. The Police having approached him during the same night and having recorded his complaint Exhibit-P-399. He had vouched contents of the same and his signature at two places thereon. It appears that during the further part of his examination-inchief himself having not supported the prosecution to full extent, the learned APP after seeking necessary leave was required to cross examine him. During the said cross examination effected, the portions A, B and C were marked from his statement recorded by the Police during the course of investigation. However, the said portions being not duly proved through the Investigating Officer, it will be futile to make any dilation in detail regarding the same except stating that they were regarding the lady in veil having boarded the bus along with one person having got down prior to Asalpha bus stop, about the talks ensued between the said witness and himself having seen the said lady,

362

conf.5.09

given her the ticket etc.. All the said cross examination being effected to bring on record that the witness could not have identified accused no.2 and 3 at T.I.Parade held on 11.10.2003 at Arthur Road Jail. During the cross examination of PW-54, it was brought on record that on 11.8.2004 he had given a report in writing to his superior and one more letter was issued by him to his superior on 20.6.2005. It was also brought on record that he had written them as Police was pressurizing him for identifying the lady in veil by showing her photographs and himself in the said letters having given the phone numbers and names of the Police officers who were pressurizing him. He also expressed his ability to produce the said letters on the next occasion. PW-54 further admitted that since the lady was in veil and she never removed the veil from her face, he could not see her face. It was also brought on record that he was taken to Arthur Road Jail and Byculla Jail without allowing him to inform his superiors in advance. He claimed of having been shown the photographs of male and female by the Police at the said jail and he was asked to identify them etc. He also produced the letter dated 11.8.2004. PW-54 having shown inability to produce the copy of letter dated 11.8.2004, the same was got produced by making an application to the Court and obtaining summons for the same and after production of the same the same was got proved through PW-54 and marked as Exhibit-D-65.

363

conf.5.09

435.

Considering the matters surfaced in the cross examination of

PW-54, about being pressurized by the Police, the learned APP was required to cross-examine PW-54 to bring on record that the date of incident mentioned by PW-54 in his letter dated 28.8.2003 at ExhibitD-65 was wrong and that he (PW 54) has not mentioned the reason of delay in the said letter and letter dated 20.6.2005 Exhibit-P-400. It was also brought on record in his (PW 54) evidence that in letter ExhibitD-5, PW-54 has not mentioned that Police having shown photographs of culprits and were pressurizing him to identify them and his inability to assign the reason for the same. It was also brought on record that in the said letter it was not mentioned that the Police pressurized PW-54 to identify the culprits at the time of identification parade held on 11.10.2003. Without enlisting all the answers in the said cross

examination, it can be safely said that by the same, the claim staked by PW-54 during the cross examination that he was pressurized by the Police, was shattered.

436.

The learned counsel for defence made two-fold submission It was urged that the

with regard to the evidence of PW-54.

prosecution having sought the leave under section 154 of the Evidence Act to cross examine the witness itself indicates that the prosecution

364

conf.5.09

had declared that they are not relying upon the evidence of PW-54 due to himself being unworthy of any credit. It was urged that, hence, his evidence cannot be said to be useful to the prosecution for any gainful purpose. Secondly, it was contended that the prosecution, during the cross examination, though had got portions marked A, B and C from the previous statement of the said witness, failed to prove the same. Resultantly, the claim staked by P.W. 54 in his examination-in-chief remained unshattered by the prosecution. It was urged that hence the said evidence given by PW-54 in examination-in-chief is binding upon the prosecution and the said evidence itself runs counter to the prosecution case that accused No.3 along with accused no.1 had boarded the said bus and occupied the rear seat and while leaving had left the bag below the rear seat of the bus. It was urged that the same is obvious as the evidence of PW-54 failed to support evidence of PW-46 of veiled lady (A3) having boarded the bus along with one male person (A2) and the further events as claimed by PW-46. It was thus

contended that the evidence of PW-54 supports the defence of PW-46 being not a trustworthy witness and the same being planted by the investigating agency.

437.

It was urged that such a conclusion is apparent as the

evidence of PW-54 to some extent also denotes of there being no fair

365

conf.5.09

play on part of investigating agency during the investigation and the trial as the same amongst other also indicates the allegation of PW-54 being pressurized by the Police, as claimed by him. It was urged that merely because such factors are not mentioned in the relevant letters by PW-54 by itself would be no ground to discard the said claims staked by PW-54. It was urged that such a conclusion is inevitable as the prosecution has not been able to establish that PW-54 had any reason to stake such a false claim unnecessarily. It was urged that considering the prosecution evidence upon the preponderance of probability, the defence submission is more sound as the presence of PW-54 in the said bus is beyond any doubt due to himself being the Conductor of the said bus. It was urged that the said witness cannot be reasonably termed as a chance witness and the said witness not supporting the prosecution gives severe blow to the prosecution case which they had tried to cook up and establish through the so called planted witness PW-46. However, the case regarding PW-46 apparently appears to be different as except his bare words, there is no other evidence adduced for establishing that on the relevant date and time he was traveling by the said bus. Merely because he was an injured witness, the conclusion cannot be drawn that on the relevant date he was traveling by the said bus. The same is apparent as he may be one of the injured persons due to blast occurred and due to the injuries sustained may be playing as

366

conf.5.09

per the desire of the Police. It was thus contended that the evidence of both the said witnesses fails to satisfactorily establish that accused nos. 1 and 3 were the passengers and had committed acts as alleged by PW-46.

438.

The aforesaid submissions and particularly submission

regarding the evidence of PW-54 being not useful to the prosecution for any gainful purpose due to prosecution being required to cross examine him at the trial, was rightly repelled by learned APP by placing reliance upon the decision in the case of Jodhraj Singh ,vs, State of Rajasthan reported in (2007)15 SCC-294 and particularly paragraphs 11 to 14 and urging that merely the witness is declared hostile at the trial, his evidence is not liable to be rejected. After

carefully considering the said paragraphs pointed out by the learned APP we have no hesitation to accept the proposition canvassed by her.

439.

In addition, in view of the decision in Sat Paul Vs. Delhi

Administration reported in AIR-1976-SC-294 wherein with regard to the evidenciary value of a witness cross examined by the party calling him as a witness, the Apex Court in paragraph 51 has observed to the effect as under :-

367

conf.5.09

"51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the court, by the party calling him, his evidence cannot as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on record, that part of his testimony which he finds to be credit-worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto." Keeping in mind the above, the evidence of PW-54 cannot be said to be not helpful to the prosecution at all.

440.

With regard to the submission canvassed regarding the evidence of

PW-54 regarding unfair play by the investigating agency, we are unable to accept this criticism as nothing is established from the said evidence. We are of such considered view as apparently the said claim staked is blissfully vague regarding the person who had pressurized PW-54 or for the purposes as claimed by him. PW-54 has not at all given name of any officer who was responsible to pressurise him. Furthermore, considering the answers elicited from PW-54 during the cross examination and particularly in absence of such allegations in the letters written by him, would be another ground for not accepting the said bald claim of PW-54.

368

conf.5.09

441.

Now, considering the other aspect urged that evidence of PW-54

runs counter to the evidence of PW-46 due to PW-54 nowhere having claimed of the veiled lady having boarded the bus along with other man or any incident as claimed by PW-46 having occurred in between PW-46 the said veiled lady and the person accompanying him etc.. We find it extremely difficult to accept the said submission. Such a conclusion is not at all possible without there being any direct admission elicited from PW-54 of no such events as claimed by PW-46 having occurred on the relevant date in the said bus. Thus, merely because the evidence of PW-54 is silent regarding

occurrence of such an event, it is improper to assume that no such incident had occurred. For, PW-46 has deposed that the said passengers boarded the bus at the first stop itself. Similarly,the relevant events as claimed by PW-46 having occurred in between PW-46, the said veiled lady and the person accompanying her and the said evidence of PW-46 also not revealing that PW-54 was nearby present at the time of the said events, would be another factor to discredit criticism. It can be further added that considering the nature of work with which PW-54 was expected to be engaged i.e. distribution of tickets to the passengers who had recently boarded the bus, the possibility of his not paying attention to the matters stated by PW 46 cannot be ruled out. In view of the same, it is difficult to find any substance in the submission canvassed on behalf of the defence that the evidence of PW-54 runs counter to the evidence of PW-46.

369

conf.5.09

442.

In the context of aforesaid submission of defence, it is trite to note

that evidence of every witness is firstly required to be scanned and assessed independently. In the event of his evidence found to be acceptable, then the next question that may arise is whether any corroboration thereto is found from the other source i.e. from the evidence of other witness or from the documentary evidence. The evidence of any witness found to be acceptable can be rejected only in the event of the evidence of other witness contradicts him and destroys his evidence. Applying the said test and the evidence of PW54 not leading to any such conclusion that the same is contrary to the evidence of PW46, it is difficult to accept the criticism that evidence of PW46 is liable to be rejected.

443.

In the context of the evidence of PW-54, the learned APP has

placed reliance on the decision in case of Suraj Pal vs. State of Haryana reported in (1995)2 SCC-64 and particularly paragraph 14 therein and also on the decision in case of Mahabir Vs. State of Delhi reported in (2008)16 SCC 481 and particularly paragraph 12. According to her, the prosecution through the evidence of PW52 SEO Waman Sapre having established that PW-54 had identified the A2 and A3 at test identification parade, the said evidence is also useful for the prosecution for advancing the case. After careful perusal of the said ruling we are unable to accept this submission of learned A.P.P. Inasmuch as the said decisions are on the point of explaining utility of holding T.I. parade during the course of investigation for the witnesses who were not knowing the culprit. The said decision reveals that such parade serve the

370

conf.5.09

purpose of the witness having an opportunity to identity culprit at earliest stage before his memory fades by passage of time uptill commencement of trial; and secondly thereby giving an opportunity to investigating agency to reassure that investigation is proceeding in the right direction. Further, the identification made by a witness of a culprit at the trial is the substantive evidence and truthfulness of the same is assured by prior identification of the said culprit made by the said witness at test identification parade. The latter is never a substantive evidence and is only a corroborative piece. In the instant case, PW-54 having failed to identify A1 and A3 at the trial, the identification made by him of the said accused at test identification parade is wholly inconsequential. The decisions pointed out are upon the point that in all cases the evidence of witnesses identifying the culprit at the trial being not corroborated by identification of culprit made by test identification parade may not be without any value in absence of other corroborative evidence for supporting the claim staked by him.

444.

Thus, considering the evidence of PW-54 who was cross examined

by the prosecution coupled with the fact that the relevant matters marked as portions A, B and C have not been established, the evidence of this witness to establish the nexus of Accused with the incident in question becomes doubtful. However, as presence of PW-54 in the bus on the relevant date and time being not at all shaken, his evidence cannot be ignored in toto. To the extent of the incident having occurred in BEST bus route no.340 on the date and time as claimed by him and the same having occurred due to explosion

371

conf.5.09

and due to the same extensive damage being caused as stated by him deserves acceptance. That part of the evidence is corroborated even by evidence of PW 47.

445.

Since we have already dealt with the evidence of the witnesses

relating to arrest of A2 and so also recoveries made at his behest i.e. from his house and from the house of A1 and A3 under the caption of "Arrest of A1, A2 and A3 " and recoveries made at the behest of A1 , it will be wholly unnecessary to once again discuss the said aspect. The discussion made earlier under the said caption reveals that by the said evidence prosecution has established that explosive substance i.e. gelatin , detonators, alarm clocks etc. being recovered as a sequel to the statement made by A2 leading to such a discovery from his house and so also from the house of A1 and A3. The same would be an additional circumstance assuring the inferences arising out of the evidence of PW46 as corroborated by the evidence of PW54. Such a conclusion is apparent as the said evidence pertaining to the seizure and recoveries and particularly nature of explosive material seized having similarity with the explosive material used in the explosion in question. That fact is established from C.A. reports at Exh.P-605 regarding the samples from the spot etc. sent to C.A. vide forwarding letter Exh.P-605 by Investigating Officer.

446.

The defence may be justified in contending that there is no direct

evidence indicating that the part of the material seized from the Accused was

372

conf.5.09

utilized for causing the explosion in question to indicate the complicity of A2 and A3 in causing the explosion or that, in absence of such evidence, the concerned Accused, at best, can be proceeded for offence under Explosive Substances Act. However, this submission will have to be rejected as it is well known that it is difficult to have a direct evidence regarding such aspect i.e. part of the explosive material seized from accused were used for causing explosion. Significantly, this defence argument cannot be taken forward in the light of evidence of PW 46 and more particularly confession of A2 and A3. That evidence unmistakably points out to the involvement of the Accused in the commission of the crime and offering no explanation regarding the circumstances and purpose of possessing the said contraband articles.

447.

Thus, considering the prosecution evidence as a whole, it is

apparent that the prosecution has, amongst others, established that : (a) on 28th July, 2003 at 21.10 an explosion had taken place underneath rear seat of BEST bus No.MH-01H-8246 for route no.340 and the said explosion was due to the material in the bag underneath the bus seat. (b) the said material was a crude bomb made of gelatin sticks, alarm clock and detonators. (c) A2 was carrying the said bag. A3 was kept by the passenger

accompanying him. They had boarded the said bus at

373

conf.5.09

about 5.30 p.m. A3 was offered seat by PW46, who was sitting on the last bench in the bus. (d) PW46 had accommodated A3 by shifting towards the right side. The bag with A2 was kept underneath the seat. (e) A2 and A3 then alighted from the bus at Marol Stop. (f) At that time the said bag had remained in the bus

under the said seat. (g) PW46 had shifted himself in the front side of the

bus for alighting after the bus had reached Ghatkopar telephone exchange area. (h) Then explosion occurred from the rear side of the

bus where the bag was kept in the bus. (i) The substance of contraband used for preparing the

Crude Bomb, which had caused explosion, was found at the residence of A2 and at the residence of A3 to which A2 had led Police and panchas. (j) A2 and A3 gave confession about their

involvement in causing the said explosion in furtherance of the conspiracy to which they were party.

448.

All the said circumstances taken together has an effect of

374

conf.5.09

forming formidable chain leading to sole inference that the said bag was jointly planted in the said bus by A2 and A3 with an intention to cause explosion in the said bus i.e. for commission of Terrorists Act and as such A2 and A3 are guilty of committing alleged offences.

449.

Even accepting the submission that on relevant day many

other passengers had travelled by the same bus, but the inference deduced earlier is inevitable keeping in mind the true import of the circumstances. It will be useful to advert to the observation of the Apex Court in the case of State of U.P. Vs. Ashok Kumar Srivastava (supra). Needless to add that in spite of many passengers having travelled by the said bus, the inevitable inference, in view of the evidence surfaced only against A2 and A3 and of planting of bag by none else than A2, the defence submission that the inference is fanciful hypothesis, will have to be rejected.

450.

The aforesaid inferences are further reinforced from the As regards their confession, we have

confession of A2 and A3.

already reached to the conclusion that the same are true and voluntary confession made by the concerned accused. Needless to add, that confession of A2 of which gist is given earlier squarely reveals his involvement amongst other in plantation of the said bomb in the BEST

375

conf.5.09

bus at Andheri, in furtherance to the conspiracy hatched.

Even the

case regarding the role played by A3 as also disclosed from her confession is no different. 451. Thus, considering the said prosecution evidence, it will have

to be held that the prosecution has established that A2 and A3 did cause explosion by using explosive substance in a BEST bus bearing registration No. MH-01-H-8246 in furtherance of conspiracy hatched. Hence, we do not find any fault with the finding so arrived at by the trial Court on the basis of evidence on record. 3rd incident-25th August, 2003 at Zaveri Bazar near Mumbadevi Temple 452. With regard to the aforesaid incident, it is prosecution case

that third explosion had occurred on 25.8.2003 at 12:40 hrs. at Zaveri Bazar near Mumbadevi Temple in a taxi bearing No. MH-02-R-2022 kept waiting at the junction of Dhanaji Street at Yusufali Road in front of Sagar Juice Center near Mumbadevi Temple, Mumbai. The situation prevailing at the said spot was recorded by PI Shri Gopinath Chavan (PW 43) by drawing detailed panchanama requiring about 7 hours i.e. Exh. P-353 in presence of panchas Yogesh Chavan (PW-35) and Uday Zaveri. During the said work Metal pieces scattered and blood stains splattered were seen on the spot. The officers of Forensic Science Laboratory called on the spot for the work of panchnama had

376

conf.5.09

inspected the scene of offence and taken sample of blood mixed soil and metal pieces. Number plate of aforesaid damaged taxi was found lying on the spot. Licence of the taxi driver, badges, two key bundles, two diaries found kept in the taxi were seized. As a result of said blast, the CNG gas cylinder in the taxi was found broken into pieces and the pieces of the cylinder thrown on the terrace of the nearby buildings within the range of 300 meters were collected and seized by PSI

Bajarang Parab (PW 45) by drawing panchanama (Exh. P-376). Other vehicles i.e. (a) taxis bearing No. [i] MH-01-G-1652, [ii] MH-02-

R-683, [iii] MH-02-4421, [iv] MH-01-J-2127, [v] MH-01-J-3888, [vi] MH-01-H-3327 and [vii] MH-01-H-129; (b) two-wheelers and (c) Cars [i] Santro Car, bearing No. MH-01-GA-5275 [ii] Maruti Car bearing No.MH-01-Y-5922 and [iii] Indica Car bearing

No.MH-03-S-4785 were found damaged. Heap of pieces of glasses of the vehicles were found upto the distance of 200 meters from the scene of offence.

453.

In all eleven articles consisting licence of the taxi, blood

mixed soil, number plate of the taxi and metal pieces with blood stains, one railway identity card etc. came to be seized at the time of

preparing spot panchnama and same were sent to Forensic Science Laboratory for analysis. Shops of the jewellers bearing shop Nos. 2, 6,

377

conf.5.09

7, 9 and 10 to 36 were also found extensively damaged. The motor taxi bearing No. MH-R-2022 in which the bomb was planted was completely burnt and skeleton of the same was taken in possession of. Photographs of the scene of offence were taken and video shooting of the spot was also done.

454.

The main witnesses examined by the prosecution for

establishing occurrence of the said incident as well as connection of A1 and A2 with the aforesaid incident can be tabulated as under :

PW No. 27

Name Lalsab Singh Complainant Dilip Yagnik Eye Witness

Page No. onwards/Par t of Paper book. 1737- Part II

Particulars Taxi Driver/ lodged complaint of r Bomb Blast in Zaveri Bazar Working at the STD booth at Zaveri Bazar.From from which call was made by A2 He identified A2 in identification parade. (Believed) Owner of Pan-bidi Shop at Zaveri Bazar. He identified accused No.2Ashrat. (Disbelieved) Quarrel with accused No.2 Ashrat at Dhanji Street. He identified accused No.2Ashrat (Believed)

28

1746- Part II

29

Kunjabihari Pandey Eye Witness

1756- Part II

30

Harish Popat Eye Witness

1765- Part II

378 31 Pyaresham Tiwari 1772- Part II Taxi Driver

conf.5.09 He identified the taxi driver Upadhyay in whose taxi bomb was planted, who died during Zaveri Bazar bomb blast. Father of Taxi driverUpadhyay, who died during Zaveri Bazar bomb blast. Owner of Panpatti Stall at Zaveri Bazar. He identified accused No.2 Ashrat (Disbelieved) Relative who claimed of 2 dead bodies. Pancha in respect of spot panchanama. Injured Injured Injured Pancha in respect of seizure of the clothes of the complainant He took photographs of dead and injured persons at Zaveri Bazar . He conducted Test Identification Parade in Zaveri Bazar bomb blast case. He drew panchanama of metal pieces which were taken out from the body of injured. He drew spot panchanama.

32

Indramani Upadhyay Kutty Shetty Injured Eye Witness Dinesh Rakhade Yogesh Chavan Pancha Firoz Ahmed Jariwala Deepak Vadhani Jaya Shetty Pancha Shankar Sawant Photographer

1774- Part II

33

1775- Part II

34 35 36 37 38 39 40

1780- Part II 1782- Part II 1803- Part II

Sonba Deogirikar 1805- Part II 1806- Part II 1807- Part II 1809- Part II

41

Dushyant Oza 1810- Part II Special Executive Magistrate Suryakant Naikwadi PSI Gopichand Chavan PI Shamrao Jedhe ACP 1817- Part II

42

43

1824- Part II

44

1826- Part II

Investigating Officer who conducted investigation prior to investigation being transferred to DCB CID. He drew panchanama in respect of the gas cylinder of motor taxi in which bomb was kept. Claimant of dead body of his son, Vinod.

45

Bajrang Parab API

1891- Part II

64

Datta Bhosale

2074- Part II

379 65 66 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 Robin Das Dilip Bombale 2075- Part II 2076- Part II

conf.5.09 Claimant of dead body of his father. Claimant of dead body of his father. Claimant of dead body of his brother, Sandip. Claimant of dead body of his son, Gokul Hussain. Relative of dead person. Relative of dead person. Claimant of dead body of his son, Sohel Claimant of dead body of his son, Mohd. Islam. Claimant of dead body of his brother, Vishwanath Claimant of dead body of his nephew, Anand Dey. Claimant of dead body of her husband. Claimant of dead body of his daughter. Claimant of dead body of his wife. Claimant of dead body of his wife. Claimant of dead body of his brother, Gorakhnath Claimant of dead body of his brother, Omnath Claimant of dead body of his brother, Harsh Bahadur

Sandesh Kharade 2079- Part II Alisab Shaikh Perajmal Jain Shakikl Ahmed Ismail 2080- Part II 2082- Part II 2083- Part II

Abdul Latif Umar 2084- Part II Vadiwala Mohd. Ibrahim Ansari 2085- Part II

Nilmani Kanayalal 2086- Part II Dhara Molay Kartik Karmarkar Smt. Mangala Arun Gadgil Rajan Parshuram Verulkar Bhaskar Kacharu Bansode Harischandra Dhondu Kale Navnath Sitaram Sutar Faudar Rajaram Dhuri Bajrang Bahadur Singh Rajendraprasad Ramkumar Pandey Mehul Dungarshi Palan Anant Mandal 2088- Part II 2089- Part II 2090- Part II 2091- Part II 2092- Part II 2093- Part II 2094- Part II 2095- Part II

2096- Part II Claimant of dead body of his brother, Surendraprasad 2097- Part II Claimant of dead body of father, Dungarshi. 2100- Part II Claimant of dead body of his brother.

84 87

380

conf.5.09

455.

As observed earlier, the defence has not disputed occurrence

of explosion at the aforesaid place as claimed by prosecution and of persons having sustained injuries, including some of them having died due to injuries sustained and so also extensive damage caused to the property as claimed by the prosecution. The stand of the defence is that the prosecution has failed to establish the nexus of A2 particularly and so also of absconding accused Nasir with the aforesaid incident and/or the same having occurred due to use of RDX material for causing the said explosion as claimed by the prosecution.

Accordingly, it may not be necessary to discuss threadbare the evidence of other prosecution witnesses not connected with the Needless to add that the prosecution

defence of the accused.

witnesses tabulated hereinabove have deposed regarding such other matters as stated in the last column of the said table against the names of the respective witness.

456.

Now, we shall consider the prosecution evidence which is

said to have established the nexus of A2 and Nasir with the aforesaid explosion. The unchallenged evidence of PW27 Lalsahab Singh who had lodged first information Exh.P-340 establishes that as reported by him the bomb explosion had occurred in motor taxi bearing registration No. MH-02-R-2022 at the place as claimed by the prosecution on the

381

conf.5.09

relevant date and time and due to the same he was injured and so also the persons in the vicinity and so also the damage was caused to the property. His evidence in equivocal terms establishes huge impact of the said blast to which he was witness while he was plying his taxi on the road near Sagar Juice Centre.

457.

The reference to unchallenged evidence of another taxi

driver PW31 Pyareshyam Tiwari establishes that one Umeshchandra Upadhayay was driving the said taxi bearing registration No. MH-02R-2022 in which the explosion had occurred on the said date. It also establishes that on the said day by 12.30 noon he had seen the said taxi at Dhanji Street taxi stand and hence met Umeshchandra Upadhayay at the said spot. He had offered tea to Umeshchandra but he had declined and told him that his passenger had kept luggage inside the dicky of his taxi and was expected to come back within about one hour and he was waiting for the passenger. It also discloses that then said Umeshchandra was standing nearby the said taxi and had died in the explosion occurred on the said day thereafter. Thus the said evidence also establishes that the explosion had occurred as a result of the luggage which was kept in the said taxi. His evidence regarding

Umeshchandra being owner of the said taxi is found corroborated by the evidence of PW32 Indramani Upadhayay, father of the said

382

conf.5.09

Umeshchandra. The said witness also deposed of his son having died while he was driving his taxi. Further, he himself died and himself having taken charge of his corpse from J.J. Hospital and PW31 being their neighbour.

458.

The evidence of PW30 Harish Popat

reveals that on

25.8.2003 i.e. on the day of explosion he had been to Dhanji Naka at about 11.30 a.m. and had seen one person alighting from taxi. When he was about to board the said taxi, the said person had shouted that said taxi was engaged and he should move away. PW30 looked at that person, whence the said person questioned him as to why he was staring at him. PW30 told him why he was unnecessarily becoming angry. Taxi driver had also told PW30 of taxi being engaged and PW30 had also noticed meter of taxi being half way down. The further evidence of PW30 reveals that, thereafter, he attempted to engage another taxi. He could not find another taxi, therefore he started

walking towards the Mumbadevi Temple, where he had kept his goods with a vendor and after performing Pooja Path at said Mumbadevi temple for an hour. He then left the place and met a friend. He has further deposed that at about 1 p.m. loud explosion had occurred at Dhanji Street taxi stand and had seen smoke coming from the taxi stand where he had been earlier to catch the taxi. He said that the

383

conf.5.09

driver of the taxi number MH-02-R-2022 was dead. PW30 during his evidence after giving the description of the person with whom he had quarreled for boarding the taxi which had exploded and showing ability to identify the said person, had identified A2 as being the said person with whom he had quarreled. He has also deposed that

thereafter he had taken goods and while he was going back to his house, told one constable that he wanted to make a statement about what had happened. The said constable had questioned about his identity and he had told that he was selling baniyan and readymade clothes as a hawker. The constable had told him to go to L.T. Marg Police station but because of fear he had gone to the house along with the goods. He has also deposed of being to Arthur Road Jail on 9.10.2003 and identified the person with whom he had quarrel out of 14 persons at the said jail and Special Executive Officer and the panchas being then present.

459.

PW30 was cross-examined extensively on behalf of A2

regarding the area in which he was carrying on his business, for which he had gone to purchase the goods. Significantly enough he was also suggested that he was moving in the said area without any work. By pointing the said suggestion, the learned APP has rightly canvassed that the same signifies that the defence has not disputed the presence

384

conf.5.09

of PW30 at that place, as claimed by PW30. Without enlisting further answers elicited during the cross-examination, it can be said that in spite of searching cross-examination, the claim staked by PW30 has remained unshaken. PW30, during the cross-examination, has denied of having identified A2 at the trial and at T.I. parade because of the photograph of A2 which had appeared on T.V. and newspaper. He also denied of having given false statement under Police pressure for supporting imaginary story of the Police for implicating A2. He also denied of having identified A2 at the trial due to A2 being pointed to him by the Police within the Court premises.

460.

PW30 was further extensively cross-examined on behalf of

A1 and A4 to bring on record that there was disparity of the address given by him while recording his evidence and while giving his statement i.e. the address of Pydhonie area. PW30 also denied of knowing the Police Officers prior to recording his statement on 25.8.2003 or having helped them prior to the same. He also denied of having acted as a panch witness for L.T. Marg Police station prior to the said date. Significantly enough he claimed of not remembering whether he had given the evidence before Ad-hoc Additional Sessions Judge, in Crime No. 14 in Sewree in Sessions Case No. 516/2000. He replied of being to the POTA Court for first time but not remembering

385

conf.5.09

whether he has deposed before any other Court. He further stated that he was not remembering whether he has signed any panchanama as a panch for L.T. Marg Police station. Ultimately he admitted that once or twice he had been to Girgaon Court but do not remember whether he had deposed in the said Court. He denied of having signed on many occasions as a panch witness for the said Police station and or being tutored by the Police etc.

461.

By pointing the aforesaid answers, the learned defence

counsel Shri Wahab and so also Shri Kunjuramani urged that the same supports the defence submission of PW30 being not truthful witness and being roped in by the Police. It was urged that the theory of the said quarrel with person in a taxi is again introduced by the Police for making the evidence of PW30 acceptable by introducing a reason for him to remember the said person in the taxi. Additionally it was contended that PW30 is the stock panch witness of the Police and the effort of defence to establish the same was frustrated due to the

defence being not permitted to adduce the evidence regarding the same for which they had applied to the Court. It was thus urged that the evidence of PW30 was liable to be discarded in toto.

386

conf.5.09

462.

After close scrutiny of the evidence of PW30, we are unable

to accept the said criticism levelled. In the first place, even accepting that due to answers given by PW30 of not remembering some matters denotes some anxiety on his part, the same, by itself, can never be a good ground for discarding his testimony in toto which otherwise has remained unshattered in any manner. At the most, his evidence would warrant close scrutiny regarding such matters but not altogether rejection of his entire evidence as tried to be canvassed. In view of the same, we have cautiously scrutinized the evidence of PW30 and so also the criticized part therefrom recited hereinabove. Upon such a scrutiny, we are unable to find any embellishment in his testimony in respect of matters for which his evidence is adduced. The defence criticism in general is based on the argument that even this witness in respect of the present incident has also come across with the culprit due to quarrel ensued in between them. That challenge has already

been dealt with by us while considering the evidence of witnsess regarding incident of attempt to commit explosion at Seepz MIDC. We do not propose to unnecessarily burden this judgment by repeating those reasons given. We only observe that the same reason would apply even to the evidence of PW30. Thus, his evidence cannot be rejected.

387

conf.5.09

463.

Now considering the application dated 22nd January, 2005 at

Exh. D-94 made on behalf of A1 for summoning the witness and the order dated 14th September,2008 pointed by learned APP, it is crystal clear that though POTA Court had found that the production of

document for showing that PW30 is a habitual witness was not necessary. Even then, the said request made by Mr. Wahab Khan, learned counsel for A1 for issuing the summons to Colaba Police Station and V.P. Road Police station for production of the seizure memo was allowed by the POTA Court for curtailing length of the trial. In view of the same, it is difficult to accept that the said effort of defence was frustrated. Having regard to such order passed, the

learned counsel for A1 was queried regarding further follow-up action taken by the defence. The learned counsel was candid enough to state that the concerned Police Station having reported that they were not in possession of originals of the said document, the defence had not pursued the said matter thereafter. Such being the state of affairs, the argument of the defence to discard the evidence of PW30 cannot be countenanced. Furthermore, the failure of defence to bring such a matter will be good justification to draw adverse inference against the defence to that extent. Having regard to the same, the evidence of PW30 would not be liable to be rejected as canvassed and acceptance

388

conf.5.09

of the same definitely proves A2 being the same person whose goods were kept in the said taxi which had thereafter blast. Needless to add that the said evidence definitely establishes A2 being connected with the explosion which had occurred at Zaveri Bazar on the relevant day. Thus, we do not find any fault in the finding recorded by the trial Court at the end of paragraph no.257 of the judgment under consideration.

464.

We are of such opinion as further support/corroboration to some

extent is found to the said conclusion from the evidence of Dilip YagnikPW28 who was serving in STD booth of Kantilal Jain which was situated at 5, Vitthalwadi, Zaveri Bazar, Mumbai-2 at the distance of three minutes by walk from Mumbadevi temple. The evidence of PW28, amongst others, reveals that there were three instruments in STD booth, in which he was working, bearing Nos. 56389009, 22419096 and 56250089. It reveals that he was alone working in the STD booth from 9.00 a.m. to 5.00 p.m. on

25-8-2003 and at about 12.15 p.m. one person had been to said STD booth and made call to one Nasirbhai saying Maine Mumbadevi mandir ke pass taxi me mal bhara hai. Thodi der me kam ho jayega. It reveals that then said person had given currency note of Rs. 10 to PW-28 as he was not having change. PW28 had asked him to obtain the change from nearby shop and said person returned after 5-7 minutes and asked PW28 to retain currency note of Rs. 10 as he was not able to have change. PW28 also described the said person during his deposition by giving his age as about 25 to 26 years

389

conf.5.09

and being of fair complexion, slim built and of height 5 1/2. PW-28 also identified A2 being the same person who had been to his booth on 25-8-2003 at 12.10 hrs. for calling Nasir. His evidence also reveals A2 having talked with Nasir on the telephone instrument of UGS Co. having No. 56389009.

465.

His further evidence discloses that at about 1 p.m. on 25-8-2003

he had heard loud explosion and therefore had closed shutter due to fear. People at Zaveri Bazar were proceeding towards Mumbadevi Temple. He called his employer and apprised him about the blast and that he was closing the shop. Significantly enough the said evidence of PW-28 is found

corroborated by the recitals in call report of cell No. 9892451164 which is at Ex. P-284 (colly). During the discussion made earlier under the caption of arrest and seizure at the behest of the A2; it has been found that by the evidence discussed in the said topic that the prosecution had established of the said number being that of encountered accused Nasir. The perusal of Ex.

P-284 (colly) in terms reveals that on 25-8-2003 at about 12.13.49 p.m. caller contacted to cell No. 9892451164 i.e. Nasir from the instrument of PCO bearing number 2256389009 i.e. of PW8 and the conversation had lasted for 89 seconds. Now time of communication as deposed to by PW-28 in between A2 and Nasirbhai was at 12.15 hrs. and the time mentioned in the call details Ex. P-284(colly) is 12.13.49 p.m. Thus the evidence of PW-28 in the relevant respect is found fully substantiated with all necessary particulars by the document Ex. P-284 (colly). After close scrutiny of the evidence of PW28, we are unable to accept that his evidence has been shaken in any manner

390

conf.5.09

during the cross-examination.

Without unnecessarily dilating about the

answers elicited during the cross-examination of PW28, it can be said apart from not shaking core of his testimony , hardly anything was elicited during the cross-examination for accepting defence theory that he had given false evidence.

466.

Now considering evidence of two witnesses who are having

Pan Bidi Shops at Dhanji Street i.e. PW29 Kunjbihari Pandey and PW-33 Kutty Manappa Shetty. The gist of their evidence is to the effect that quarrel was going on in between pedestrians and motor

cyclists at about 6.00 p.m. on 24th August, 2003. They heard quarrel from the distance of 300 meters of their shops and thereafter both of them had been to the said place of quarrel. At the said place, a motor cyclist and two pedestrians were quarreling with each other. The pedestrian who was pushed said Nasirbhai Gandhibhai Andha Ho Gaya kya, samnewala Admi koi dikhta nahi kya. The biker replied to him gali mat thena tum kya karega. The pedestrian thereon said kaun kiska kya karega yah tumko Kal dophar ko malum padega. Thereafter driver of the motorbike and the pedestrians indulged in scuffle and it was subsided by PW-29 and PW-33. Thereafter those persons left the spot. On the next day at bout 1 p.m. there was blast in the taxi. In the above blast many persons lost their lives and several

391

conf.5.09

persons became injured. They claimed of having recollected about pedestrian who were quarreling with the motor cyclist on the earlier day in the evening might have involved in the blast. Both the witnesses deposed of having attended T.I. parade at Mumbai Central Prison on 9-10-2003 to identify the suspect. and having identified A2 as being person was present in the quarrel which occurred in the evening of 24-8-2003 at Dhanji Street, Mumbai.

467. that

The perusal of the cross-examination amongst other reveals P.W.-29 had been to the place of quarrel within 2-3 minutes,

pedestrian had given threat only to the motorcyclist and not to other. It discloses that PW29 to the question asked that the threat was given to motorcyclist had no relation with the incident of bomb blast had replied that it was the job of police to find out the relation and he had merely informed to the police whatever happened and it was his first time to report the incident of quarrel to police. The material surfaced during the cross-examination also discloses except P.W.-29 and

P.W.-33 Kutty Manappa Shetty, no other shopkeepers went to the spot to pacify the quarrel. The quarrel of pedestrians with motorcyclist is alleged to have taken place in the evening of 24-8-2003 and accused No.2 was identified by both the above witnesses in the TIP held on 9-10-2003 as a person quarreling with the motorcyclist. In light of the

392

conf.5.09

said answers , the trial Court after taking into consideration the fact that their shops were situated about 300 meters away from the alleged place of incident at a busy place and had left the same for resolving the quarrel of trivial nature and thus there was no special reason for said witnesses to identify accused No.2 after the gap of 45 days has

discarded their evidence regarding identification of A2 made by them at a trial. Similarly the trial Court had also discarded identification of Nasir accompanying A2 made by them by identifying photograph of the absconding accused Nasir shown to them at the trial. Needless to add that both the said witnesses also deposed of having identified the photograph of Nasir at photo identification parade held.

468.

Though we are unable to find any fault with the trial Court

for not accepting the evidence of both the said witnesses (PW 29 and 33) regarding identity of A2 as being the said person involved in the incident which had occurred on the day prior to occurrence of the main incident of explosion because of their unnatural conduct of leaving their shop at a busy place for such trivial reason and so also apparently there being no reason for both of them to remember the said persons involved in the quarrel. Moreso, the nature of threats given in the said quarrel clearly smacks artificialness than natural nature of occurrence of such incident.

393

conf.5.09

469.

The trial Court has discarded the evidence of both the said

witnesses regarding identification of Nasir made by them at trial on the basis of the photograph by accepting submission made on behalf of A1 by learned Counsel Shri Wahab. He had placed reliance on the decision of the Apex Court regarding the provision of holding identification of person on the basis of photograph given in Sec.22 of TADA Act, which is held violative of Art-21 in the case of Kartar Singh V/s State of Punjab 1994 CRI. L.J.3139. We have already

observed earlier regarding the said aspect. Hence we do not propose to make further observation regarding the same as on the preponderance of probability we have already concluded that evidence of PW29 and 30 regarding the identify of Nasir being unworthy of credence. However, at the same time we also do not agree with the trial Court for rejecting the evidence of both the said witnesses in toto as the said evidence also reveals that on the next day the explosion had occurred at the Zaveri Bazar and hardly any evidence has surfaced for discarding their evidence on the said aspect. Thus their evidence

would be useful for such a limited purpose for the prosecution.

470.

Thus, considering the said prosecution evidence, it is

apparent that the prosecution has amongst other established that :

394

conf.5.09

(a) on 25th July, 2003 at 12.40 hours an explosion took place in a taxi bearing No.MH-02-R-2022 kept parked at the junction of Dhanji Street, Yusufali Road causing death of 36 persons and injuries to 138 persons and damage to the property worth of Rs.95 lacs. (b) the said taxi having luggage was brought and got parked at the said spot by A2 and he had left the said spot. (c) the said explosion had occurred due to explosive

material such as RDX kept within the said luggage kept in a Dicky of the said taxi. (d) prior to occurrence of the said explosion at about

12.10 noon A2 had given a call from the STD booth of PW28 to encountered accused Nasir informing him that "Maine Mumbadevi Mandir ke pass taxi me mal bhara hai". (e) A2 did not return to the said spot at which Taxi was parked. (f) The explosive substances such as gelatin, detonators etc. were recovered at the behest of A2 at the residence of A2 and at the residence of A3 to which A2 had led Police and panchas.

395

conf.5.09

(g)

A2

had made the confession showing their

involvement in causing the said explosion in pursuance to the conspiracy to which they were party.

471.

All the said circumstances taken together has an effect of

forming a formidable chain leading to sole inference that the said luggage containing RDX was kept in a taxi and got the same parked at the relevant spot by A2 with an intention to cause an explosion in the said taxi i.e. for commission of Terrorists Act and as such A2 is guilty of committing alleged offences.

472.

Such an inference is inevitable after considering the true

import of the aforesaid circumstances in the light of the observation made by the Apex Court in the case of State of U.P., Appellant Vs. Ashok Kumar Srivastava, Respondent, (supra) referred by us in the discussion in the previous part made for the incident of attempt to cause explosion at MIDC Seepz and Ghatkopar. It is not a far-fetched and fanciful hypothesis.

473.

The aforesaid inference is further fortified after taking into

consideration matters spelt from the confession of A2. Needless to add, that confession of A2 of which gist is given earlier squarely

396

conf.5.09

reveals his involvement amongst other in plantation of bomb in the said taxi ladden with luggage containing explosive material at the said spot in furtherance to the conspiracy hatched.
474. Thus, considering the said prosecution evidence, it will be

necessary to hold that causing an explosion by using explosive substance in a taxi bearing registration No. MH-02-R-2022 by A2 has been duly

established and hence we do not find any fault with that finding arrived at by the trial Court upon the said evidence and consequently convicting the said accused for offences committed by him by committing such acts in pursuance of the conspiracy hatched. 4th incident-25th August, 2003 at Pay & Park, Opp.Hotel Taj, Gateway of India

475.

With regard to aforesaid incident, it is the prosecution case

that the fourth and the last incident of serial bomb explosion of series had occurred at 13:05 hrs. on the same day in a taxi bearing No. MH-02-R-2007 parked at Pay & Park opposite to Hotel Taj at

Gateway of India, P. J. Ramchandani Marg, Colaba, Mumbai 400 005. The prosecution case is that said parked taxi bursted into pieces and was thrown at the distance of nearly about 32 feet. The impact of the explosion was so forceful that the lamps on the lamp-posts at the spot were broken and cracks were caused to parapet wall for the sea near Gateway of India. Crater was also developed near the scene of offence. The soil and stones found in the crater were seized under

397

conf.5.09

panchanama in presence of Officers of the Forensic Science Laboratory, Mumbai called on the spot. They had also inspected and seized metal pieces as well as soil and stones. Dust was spread on the nearby vehicles and the officers of F. S. L., Mumbai had taken swabs of the dust for chemical analysis. Damaged motor taxi bearing No. MH-02-R-2007 was inspected and the documents of said taxi i.e. insurance paper, R. C. book and taxi badge kept therein were seized.

476.

ACP Shri Vinodkumar Sharma (PW-92) at about 13:10 hrs.

had recorded FIR (Exh.P-309) lodged by Police Constable Shri Camilo Jokim Reis, P. C. No. 27423 (PW 14) on duty in the vicinity of the spot and who had firstly reached at the place of offence. By obtaining crime No.206 of 2006 from Colaba Police Station, crime was registered for offence under sections 302, 307, 427 r/w 120-B of Indian Penal Code and u/s 5 and 9(b) of Explosives Act, u/s 3, 4, 5 and 6 of Explosives Substances Act, u/s 3 of Damage to Public Property Act and u/s 3 and 4 of POTA Act, 2002. PW-92 had also recorded situation prevailing at the spot by drawing scene of offence Panchanama (Exh. P-318) in presence of panchas i.e. Mukhtar Abdul Majid Shaikh (PW-17) and Mohd. Hakim Mohd. Salim Shaikh. He

had also recorded statement of Shri. Kartik Pradhan (PW-16) who was then serving at Pay & Park Site near Gateway of India and who

398

conf.5.09

had issued parking receipt to the taxi driver of damaged taxi bearing No. MH-02-R-2007; and seized receipt book (Art. 28) from him. The statement of said Mr. Kartik Pradhan gave clue that said damaged taxi bearing No. MH-02-R-2007 was also parked at Pay & Park area on the earlier day, i.e. on 24.8.2003 and counter foil of the parking receipt (Exh. P-316) was given for the same and counter foil (Exh. P-312A) for the receipt given for parking effected on day of explosion. Pieces of CNG gas cylinder were found scattered at a distance of 250 meters from the spot and those were taken in possession of. Photographer Shri Vasudev Kadam (PW-96) took photographs of the scene of offence. Inquest panchnamas of the dead bodies of sixteen deceased persons were drawn and after examining the said corpses, CMO of St. George Hospital, Dr. Ashok Shinde and Dr. P.R. Ghuse of G.T. Hospital issued provisional death certificates that said deaths were due to multiple injuries received due to the bomb blast. The statements of injured persons were recorded. Their injury

certificates were collected from the concerned hospitals. Seized articles were sent to FSL, Mumbai for chemical analysis. 477. PI Shelar (PW 93) of Coloba Police Station recorded

statement of taxi driver Shri Shivnarayan Vasudev Pandey (PW-15) who had approached Colaba Police Station on 25.8.2003 at about 13:30 hrs and claimed of having driven taxi bearing No. MH-02-

399

conf.5.09

R-2007 from the area of Western Suburb to South Mumbai on 24.8.2003 and 25.8.2003 and gave description of the passengers (suspected persons) who had traveled in his taxi and produced receipt of parking charges of his taxi given to him by the person working at pay and park. The said receipt seized by the officers of the Colaba Police Station tallied with the counter foil of the receipt book (Art. 2(28)) which was seized earlier from Kartik Pradhan (PW-16). 478. The main witnesses examined by the prosecution for

establishing occurrence of the said incident as well as connection of A1 and A3 with the aforesaid incident for the sake of glance can be tabulated as under :
PW No. 13 Name Pandit Bhandalkar (Plan maker) Page No. Particulars

1466 -Part Prepared sketch of scene of II offence 1475-Part II Complainant in Gateway of India bomb blast case

14 Camilo Joaquim Reis (Police Naik attached to Colaba Police Station) 15 Shivnarayan Pandey (Star witness)

1495-Part II Taxi Driver. Identified accused Nos.1 and 3 in Test Identification Parade. (Believed) 1586-Part II Attendant of Pay and Park at Gateway of India who had issued parking receipt to P.W.No.15.

16 Kartik Pradhan (Attendant of Pay and Park)

17 Mukhtar Abdul Majid 1595-Part II In respect of scene of Shaikh offence. (Panch)

400 18 Madhukar Bodke (Special Metropolitan Magistrate)

conf.5.09

1615-Part II Held Test Identification Parade. 6.10.2003 of A1, A2 at Arthur Road and of A3 at Byculla Prison for PW19, 15 & 20. 1671-Part II Witness regarding quarrel with accused No.1, Hanif at Juhu Lane identified accused No.1-Hanif and accused No. 3 Fehmida. 1694-Part II Identified accused No. 1 Hanif and accused No. 3Fehmida. (Disbelieved) 1718-Part II Injured 1720-Part II Injured

19 Nafiz Ahmed Khan

20 Ramchandra Gupta Bhelpuriwala behind Taj Hotel. Friend of PW-15 Shivnarayan Pandey. 21 Amit Patkar 22 Salauddin Ibrahim Shaikh

23 Ranchodbhai Bharwad 1722-Part II Claimant of 7 dead bodies of relatives. 24 Ramabhai Bharwad 25 Ramesh Yadav 26 Rajaram Joshi (PI Colaba Police Station) 1724-Part II Injured 1726-Part II Claimant of 2 dead bodies. 1727-Part II Drew spot panchanama with PW-92, ACP-Sharma.

67 Ismail Shaikh Ibrahim 2078-Part II Claimant of dead body of his father. 85 Smt. Manju Hiralal Thakur 86 Smt. Laxmi Jadhav 92 Vinodkumar Sharma (Assistant Commissioner of Police Colaba Division) 2098-Part II Claimant of dead body of her son, Krishna 2099-Part II Claimant of dead body of her mother. 2320-Part II ACP, Ist I.O. in of Gateway Blast Case, registered FIR and drew spot panchanama.

93 Jayawant Shelar 2325-Part II P.I., recorded statement of (Police Inspector star witness, PW-15, Colaba Police Station) Shivnarayan Pandey. 94 Suresh Sonar (Assistant Commissioner of Police Colaba Division) 2328-Part II He took over investigation from PW-92, ACP-Sharma

401 95 Bhalchandra Ghadigaonkar (Police Naik, Colaba Police Station) 96 Vasu Kadam (Photographer)

conf.5.09

2383-Part II He submitted FIR in 37th Court, Esplanade, Mumbai.

2394-Part II Photographer, who took photographs of place of incident and dead bodies.

479.

Even for the present incident, the defence has not disputed

the factum of explosion having occurred and due to same persons having succumbed to death and/or being injured and/or damage being caused to the property as claimed by the prosecution. The defence,

however, is a limited one. According to the defence, the evidence adduced by prosecution has failed to establish the nexus of A1, A2 and A3 being instrumental and/or connected and/or concerned with

explosion occurred and/or the same having occurred due to use of RDX, as claimed by the prosecution. It will be therefore, futile to discuss threadbare the evidence of other prosecution witnesses not connected with the said issues. Needless to add that the prosecution witnesses tabulated hereinabove have deposed regarding matters as stated in the last column of the table against the names of the respective witness mentioned in first and second column of the said table.

480.

Now, we shall straight consider the prosecution evidence

402

conf.5.09

which is said to have established the nexus of A1, A2 and A3 with the aforesaid explosion and considering the nature of evidence of concerned witnesses i.e. PW-15, PW-16, PW-20, PW19. Apparently the evidence of latter being of corroborative nature for supporting matters mainly deposed by PW15. Thus it may be proper to consider their evidence together rather than independently, for the sake of brevity.

481.

The evidence of PW-15 Shivnarayan Pandey the owner

and driver of motor taxi bearing No. MH-02-R-2007 which had exploded is of significant importance. The same reveals that he was driving taxi in Mumbai since the year 1982 during the day time for carrying passengers on hire by his taxi and during the night time his taxi was used for such purpose by his friend Rammani Mishra.

PW-15 was residing at Kandivali and used to park his taxi below Andheri Bridge. Daily he used to come by local train from Kandivali to Andheri for picking the taxi for plying.

482.

On a day prior to occurrence of incident i.e. on 24-8-2003 at

about 10.30 a.m., he had parked his taxi at Andheri Opp. Amber Oscar Cinema Hall. One person then approached and hired his taxi after bargaining for fare of Rs.600/- for whole day to see tourist places in

403

conf.5.09

Mumbai i.e. Hajiali, Hanging Garden, Aquarium, Gateway of India and Rani Baug. After said person occupied seat by his side, as was

asked by said person, he drove the taxi at the end of Azad Galli where one bearded person along with two women and one small girl, aged about 4 years boarded the taxi. They occupied the rear seat.

483.

PW15 described the person who had hired taxi and also

identified photograph of said person i.e. of Nasir from driving licence part of Article 71 (colly) and election card Article 72 as being that of said person. The said driving licence and election card were seized from the person of encountered accused Nasir by PW1 PSI Sachin Kadam under panchanama Exh. P-254 and the one which were also identified by approver PW2 as being that of absconding accused Nasir i.e. driving licence with name Mr. Abdul Raheman Ali Aydee S/o Ayesha Sayyed Ali and another in the name of Sayeed Abdul

Rehman. and one election in the name of Abdul Rehman bearing No. KGY 2919066. PW15 also identified A1 and A3 as being the persons who had boarded taxi with the two girls and sat on the rear side.

484.

The evidence of P. W. 15 further reveals that thereafter, as

asked, he had taken taxi to Colaba enroute Sidhivinayak Temple, Hajiali, Chowpaty and Aquarium to enable the passengers to see the

404

conf.5.09

said tourist places. Thereafter Taxi was taken towards Regal Circle, Shahid Bhagatsingh Road, Bhid Bhanjan Temple and to Arthur Bunder Road. It reveals that Nasir had then asked P. W. 15 whether he could park the taxi in the compound of Taj Hotel to which he had denied. Thereafter P. W. 15 was paid Rs.200/- and he was asked to park the taxi in the Pay and Park lot opposite Hotel Taj. The passengers then left the taxi asking P.W.15 that they would return shortly. He had parked Taxi in parking lot in front of Hotel Taj at about 1.30 p. m. Thereafter about 45 minutes the passengers returned and they left the spot for lunch and came back at 2.15 p. m. P.W.15 had taken taxi out from the parking lot by making payment of parking charges of Rs. 10 to P. W. 16 Kartik Pradhan who had issued parking receipt (Exh. P 316) for having parked his taxi bearing No. 2007 on 24-8-2003 in between 10.35 a. m. to 2.15 p.m. and thereafter returned to Azad Galli and left the passengers at the corner of the said Galli at about 3.30 p.m. Nasir paid him balance of Rs.400/-. Nasir also told PW15 to bring taxi in Azad Galli at 10.00 a.m. on the next day for visiting tourist places. Significantly enough evidence of PW16 Kartik Attendant at

Pay and Park in front of Taj Hotel also corroborates evidence of PW15 regarding the aspect of parking and such a receipt being issued by him. The same is also found corroborated by the matters from the said receipt seized during the course of investigation.

405

conf.5.09

485.

The evidence of PW15 further reveals that accordingly on

the next day i.e. on 25-8-2003 he had taken taxi in Azad Galli at about 10.00 a.m. where A1 (i.e. person with beard and who had sat on the rear side in the taxi on the earlier day) came there alone and asked him to take the taxi inside the compound of the building where construction was going on. After five minutes a lady with two girls and said person - A1 came with a gray colour airbag and asked P. W. 15 to open the dickey for keeping said air bag and carefully kept it in dickey, but dickey could not be properly closed. P. W. 15 asked him to keep the airbag on the top of the taxi on the carrier, but he told that the bag contained valuable articles and it was not proper to keep it on the carrier. After keeping spanner, stepney and jack inside the taxi the

airbag was neatly kept in the dickey and same was locked. At about 10.15 a.m. A1, the person with beard, thereafter left taxi for making phone call and returned within 10 minutes. He occupied front seat besides PW15; and his wife and daughters occupied the rear seat. They asked P. W. 15 to take the taxi towards Gateway of India. When taxi was taken at Gateway of India Ramchandra Gupta (P.W.20) came from front side and called PW-15. A1 asked PW-15 not to

waste time by indulging in discussion with PW-20 Ramchandra Gupta and told him to go fast to the place where the taxi was parked on the

406

conf.5.09

earlier day. He repeatedly told PW-15 that his valuable articles were kept in the gray colour bag and, therefore, he should not leave the taxi. Ramchandra Gupta (PW20), during his evidence, had given account corroborating the occurrence of such events on the said day at the stated time at Gateway of India.

486.

The evidence of PW15 also reveals that after taxi was taken

to the parking lot in front of Hotel Taj, PW-16 issued parking receipt at about 12-40 hrs. bearing No.566 (Exh. P-312A - counter foil of the receipt) bearing date and part of taxi number. In the same context evidence of PW16 reveals that sometimes he was not writing full registration number of the vehicle for want of time and, therefore, receipt Exh. P-316 and Exh. P-312/A mentioned taxi number as 2007. PW 16 was asked as to why the time of departure was not noted in parking receipt Exh. P-312/A and had answered that since there was blast in the above taxi on 25-8-2003 therefore there was no question of mentioning time of departure in receipt Exh. P-312/A. 206. The evidence of PW-15 reveals that after parking his taxi at parking lot at about 12-45 hrs. he had been to nearby urinal for answering nature call. Since he was informed by his customers that their valuable articles were kept in the gray colour airbag which was put in the dickey, he was reluctant to go to urinal leaving the taxi unattended. He

407

conf.5.09

therefore paid Rs. 10 to the attendant of the parking lot and asked him to look after his taxi and then went to attend call of the nature in Sulabh Shauchalaya . Distance in between parking lot and Sulabh Shauchalaya was near about 150 to 200 feet. When he came out of Sulabh Shauchalaya at that time he heard sound of big explosion as a result of which he felt that his ears had become deaf. He sat on the ground and after sometime he went towards parking lot where his taxi was parked.

487.

The further evidence of P.W-15 reveals that he could not

locate his taxi at the parking place as there was smoke all around. His taxi was found lying 30 to 32 feet away from the place where it was parked and it was completely damaged. It is noticed that while PW15 was describing the damage caused to his taxi, he started weeping in the witness box. After sometime he spoke that he saw some dead bodies around the taxi and others were fighting for their lives. He thereafter came to the lane behind Hotel Taj and sat at one place for near about 45 minutes by keeping both the eyes closed. After he

found that he was able to walk, he walked upto Colaba Police Station and narrated the entire incident. P.W-15 identified A1 Hanif and A3 Fehmida in court as being persons who had travelled in his taxi on both the days and he further said that A1 had kept his airbag in the dickey of

408

conf.5.09

the taxi on 25-8-2003. It is noticed that Fehmida who was sitting in the dock with a veil on her face was asked to remove the veil. Thereafter, she was identified by PW-15. He has deposed that A3 had travelled in his taxi on 25-8-2003 and she was then wearing salwar-kameez with punjabi dupatta. PW-15 also deposed about test identification parade which was held in Mumbai Central Prison on 6-10-2003. He deposed of having attended TIP in the above jail on 6-10-2003 at 12.00 hrs. and identified accused No.1 out of 14 persons in the row. PW15 duly denied suggestion given in cross-examination that no TIP was held in Mumbai Central Prison on 6-10-2003 and he did not identify accused No.1 in the said TIP. Significantly, A1, during his examination under sec. 313 of Cr. P.C. (Exh. P-615) regarding the said evidence had answered question No.315 that he was identified by PW-15 at the instance of police. Similarly, during cross-examination effected by

Adv. Wahab Khan on the point of TIP by PW-15, had replied that dummies were looking almost identical in age and the age was approximately 30-35-40, out of the dummies 9 to 10 were having beard, there was only one door to the identification room and that room had no transparent grill. The said answers in cross-examination of PW-15 has further strengthened his evidence regarding identity of A1.

488.

The evidence of PW15 further reveals that after attending

409

conf.5.09

TIP in Mumbai Central Prison on 6-10-2003, he attended TIP and identified A3 out of six dummies placed in parade in T.I. parade held at Byculla District Prison by pointing out the finger at her and in the said parade all seven ladies in the row including A3 were of same height of about 5 fts. During cross examination, PW15, to the question asked about the source of his information about the arrest of A3 i.e. through news paper, T.V.or any other media, PW15 replied that he had gone to his native place and in his village there is no Television, Newspaper and he also does not have Radio. He also replied that during parade she was standing at Sr. No.5. PW 15 denied of not having participated in T.I. parade of not having identified A3. Significantly A3 during examination u/s 313 of Cr.P.C, had replied that she was identified by PW-15 at the instance of police. There is thus variance between the suggestion given to PW-15 and the statement made by A3 during her examination under sec. 313 of Cr. P.C.

489.

Evidence of PW-15 also reveals that during photo

identification parade held at Colaba Police Station on 3-1-2004 at 4.45 p.m. he had identified the photograph of the person who had sat in his taxi on front side beside him while coming to Colaba from Andheri on 24-8-2003 i.e. the photograph of Nasir seized from the documents on his person at the time of his encounter. PW15 also denied that the

410

conf.5.09

blast had occurred due to the bursting of gas cylinder of taxi. PW15, during his cross examination, was suggested about having fitted substandard CNG kit in his taxi from unauthorized person which resulted in its explosion at about 1.00 p.m. on 25.8.2003. PW-15 denied the same.

490.

In the same context, considering the evidence of PW94 ACP

Shri Sonar pointed out by learned APP the same shows that the articles seized from the blast place at Gateway of India vide panchanama Exh. P-318; consisted the pieces of cylinder which was fitted in the taxi bearing No. MH-02-R-2007 and were sent to C.A. office for analysis on 27-8-2003 vide forwarding letter Exh.P-539. The Chemical Analysis report Exh.P-540 (colly) received regarding the same

amongst other reveals that RDX (Cyclotrimethylene Trinitramine) along with petroleum and Hydrocarbon oil was detected upon articles examined i.e. metal pieces, rubber pieces, metalic wires, debris, cloth pieces etc. It is also opined by Assistant Chemical Analyzer to

Government Forensic Science Laboratory that looking at the site of bomb blast it is evident that high intensity explosives were used. To wit, the report bearing No.H(T) 10310/2003 specifically depicts : The broken CNG Cylinder found at the site indicated

411

conf.5.09

added effect of CNG gas in the blast. The residue and remains collected at sight shows the presence of RDX along with petroleum hydrocarbon oil as tested by chemical and instrumental method.

491.

The evidence of PW 94 has remained unshattered regarding

this aspect. The said matters from C.A. Report clearly establish that blast occurred in concerned motor taxi was due to explosion caused by means of RDX material. Needless to add, the same also rules out the possibility of same having occurred due to bursting of gas cylinder of CNG Kit filled in said taxi of PW 15.

492.

This

evidence repels the defence submission and

suggestions put to PW15 that the explosion had occurred due to blast of CNG kit fitted in the taxi. Needless to add that no such defence was taken on behalf of the accused during their examination under section 313 of the Code of Criminal Procedure as pointed out by learned APP.

493.

Similarly, after carefully considering deposition of PW15

and the reasoning given by the trial Court regarding grievance made on behalf of the defence, we do not find any substance in the grievance made on behalf of the defence of examination-in-chief of PW-15 being

412

conf.5.09

deliberately recorded in piecemeal, and so also of the other witnesses to enable the prosecution to allow its officers to tutor the witnesses. We say so because we are unable to find any fault with the reasoning given by the trial court about the said aspect in paragraph no.212 of the judgment under consideration.

494.

The learned Counsel for A1 and A3 drew our attention to the

answers given by PW 15 during the cross-examination regarding compensation of Rs.5 Lacs received by him from Shiv Sena Party as a reward. It was urged that the said answers reveal that though PW 15 could not hide during the cross-examination that he had received such amount from Shiv Sena Party, he gave evasive answers about the said reward. That revealed anxiety on his part not to furnish the details thereof. He was unable to disclose precisely the reason for which he was rewarded. He claimed that he was at native place when he was at native place when he was rewarded for bravery. However, he was unable to tell as to how Shiv Sena Party came to know about his name and address or the date on which he was rewarded or the precise place in Bandra at which he was rewarded and at whose hands he was rewarded or whether at the time of giving reward, he was alone or was rewarded in a function. It was urged that even with regard to receipt of the amount, he gave evasive answers that he had received the cheque

413

conf.5.09

but had not confirmed whether the cheque was in his name or the name of his son. He replied of having not seen the cheque himself. He was also unable to give cogent answers regarding how he knew that he was rewarded for bravery and so also whether the said amount was deposited in his bank. It was urged that the said answers militate against the prosecution claim of PW 15 being truthful and independent witness.

495.

After carefully considering the relevant answers, we are

unable to find any merit in the said submission. It is significant to note that the fact of PW 15 having received amount of Rs.5 Lacs from Shiv Sena Party as a reward has surfaced in an answer to the question asked to him during the cross-examination. He was asked whether he had received any compensation from State Government or any private institution. PW 15 in response to the said question candidly disclosed about receipt of such a reward from Shiv Sena Party. We fail to appreciate as to how this admission will militate against the prosecution. It is not possible to countenance the argument of the defence that answers given by PW 15 reveal his anxiety to hide relevant facts. No such conclusion can be deduced merely because of the inability of PW 15 to tell the precise place at Bandra at which he had received the said reward or the name of the person at whose hand

414

conf.5.09

he had received the award. The same is apparent as further answers given by him indicate that he had not attended or personally received the said amount. As noticed earlier, as regards the core facts disclosing the happening of the incident at the spot and the involvement of the concerned accused has remained unshaken. The presence of PW 15 at the spot on the relevant date and time is corroborated by other prosecution evidence to which we have already alluded to. The Trial Court after considering the said aspect in paragraph No.213 of the Judgment under consideration, had not accepted above stated defence criticism. We are unable to find any fault with the reasoning given by the Trial Court in the said paragraph for not accepting the said criticism.

496.

Thus after taking into consideration the aforesaid evidence

we find that learned APP had rightly urged that the criticism made by learned counsel for accused persons that evidence of PW-15 is not reliable or worthy of credence as the same does not cogently establish that on the said day or on the day prior to the same he was not driving the taxi. That plea is based (a) on the surmises of his licence being not renewed, (b) somebody else's batch was found in the exploded taxi, (c) himself occupying front seat had not proper opportunity to see the passengers allegedly taken by him in his taxi and his conduct of not

415

conf.5.09

rushing to the Police for lodging FIR, (d) PW-15 having not seen PW-19 and vice-versa. It was rightly urged that none of these factors (expect not lodging an FIR immediately) are capable of drawing inference against PW 15. She has rightly urged that PW15 being

involved in the incident and having practically lost his means of livelihood due to his taxi being substantially damaged and thus perplexed, his conduct of not immediately rushing to the Police cannot be said to be fatal to arrive at such a conclusion more so because hardly any material was elicited during the cross examination for jumping to such a conclusion. Her submission that evidence of PW15 considered as a whole reveals candid answers given by him during the cross examination and absolutely no anxiety to hide any matter on his part denotes the same having ring of truth and that the evidence given by him under sanctity of oath will have value of presumptive truth unless it was challenged/damaged by cross examination also merits acceptance. Her further submission that the presence of PW-15 at the spot has been found confirmed, corroborated or substantiated by the evidence of two different independent witnesses i.e. PW-16 and PW-20 also merits acceptance. Significantly, the prosecution has established by independent evidence that taxi no.MH-02-R-2007 was damaged in the blast which belonged to PW 15, the presence of PW 15 at the spot is quite natural. Further, the material evidence of PW 15 is also

416

conf.5.09

corroborated from the matters contained in the confession of A1 and so also from the confession of A3 and to some extent from the matters contained in the confession of A2.

497.

Her further submission that evidence of PW15 exhibits

natural colour and answers recorded on page no.1520 of paper book in the cross examination fails to denote that his conduct after the explosion was unnatural also cannot be brushed aside. Similarly, we find substance in the submission of learned APP that the answers surfaced during the cross examination that A3 was not in veiled condition belies the criticism regarding identification of A3 made by him in the Court as well as in the parade, also deserves credence. The same is the case regarding further submission canvassed by pointing out the answers given by PW15 regarding the manner in which he was asked to keep the bag in the taxi initially and afterwards etc. also reveals that he had sufficient opportunity to observe A1 and A3. The fact of himself having locked the dickey is found reinforced in cross examination. The matters from his evidence are also found

corroborated by the matters stated in confession of A3. The fact of A1 having requested to stop the taxi for purchase of medicines on 24th August 2003, is found corroborated from the matter stated in confession of A1 and so also in the confession of A3. It is significant

417

conf.5.09

to note that regarding the said matters no contradictory stand was taken by A1 during his first retraction or even in the second retraction made on 24th September 2003.

498.

The claim staked by PW-15 of having met PW-20 and then

passengers sitting on the front side by his side (A1), had told him that within 15 minutes he will come to the parking lot near Gateway of India and insistence made by the said passenger for going early to the said place and not to leave the taxi is found duly corroborated by evidence of PW-20. The learned APP rightly urged that the Trial Court has misdirected in not accepting the claim of PW-20 in that behalf, for, the Trial Court has not given any sound reasons for discarding the said claim or at least the claim regarding occurrence of such event leave aside about the identity of the said passenger.

499.

The submission of learned APP that the evidence of PW-15

is again found corroborated by the evidence of PW-16 regarding the parking of taxi or the evidence of PW-16 revealing plausible reason for remembering the said taxi driver i.e. who had earlier visited the parking lot and who had given note of Rs.10/- also cannot be said to be improbable. The evidence of PW-16 is duly corroborated by the

receipt issued by him and so also the reason for not mentioning

418

conf.5.09

departure time. Having regard to the same, we do not find force in the defence submission that failure of the prosecution to examine the person from Municipal Corporation or the contractor for whom he was working was fatal to the prosecution case. Considering the fact that the matters stated by PW 16 having remained unshattered in the cross examination, we cannot discard his evidence. Hence, we find

substance in the submission of learned APP that considering the evidence of PW-16, it cannot be said that he was a chance witness. On the other hand, his evidence in terms reveals that he was most natural witness for the events to which he was party. Taking overall view of the evidence, we have no hesitation to reject the defence criticism that PW15 was a planted witness planted by the prosecution/investigating agency.

500.

Similarly, PW-15 having duly denied in his cross

examination of Rammani Mishra driving his taxi at the relevant time and specific reason given by him of Rammani Mishra not driving his taxi on the night on 23rd August 2003 and 24th August 2003 as he was ill, which answer has surfaced during his cross examination itself knocks down the theory of defence of PW-15 not driving the taxi on the relevant dates or the same was given by him to Rammani Mishra or that PW-15 being a witness planted by prosecution for suitable

419

conf.5.09

purposes.

501.

Similarly, after considering the evidence of PW-15 that he

had parked the taxi at 12.45 p.m. and the evidence of first informant PW-14 that at about 1.00 p.m. he had heard a big sound from the direction of pay and park opposite Taj Hotel and the further events happened thereafter and time consumed therein and that thereafter his statement was recorded by ACP while FIR Exh.P-309 and particularly complaint part therein revealing that the same was recorded in between 13.45 hours to 14.20 hours and noting made of ACP therein of the same being treated as FIR and the relevant aspect having remained unshattered, the evidence establishes that there was no delay in

recording first information report. Similarly considering unshattered evidence of PW-15 that he had reached Coloba Police Station at 2.30 p.m. also reasonably explains the circumstances in which first

information report of PW-14 was recorded prior to his reaching. In view of the same, it is difficult to accept the defence submission that PW 15 was not at the site much less was not driving the taxi on the said day or had not driven the same on the earlier day. Needless to add there is absolutely no foundation for the later part of the said submission. We are unable to accept the said submission that

presence of PW 15 at the spot is doubtful due to recovery of batch of

420

conf.5.09

Rammani Mishra from the taxi. That fact by itself cannot be sufficient to jump to any such conclusion.

502.

The

legal position regarding avoiding multiplicity of

evidence at a trial is well settled by plethora of decisions of Apex Court including that in the case of Vadivelu Thevar vs. The State of Madras reported in AIR 1957 SC 614, wherein Hon'ble Apex Court while considering the question of Court insisting upon plurality of witnesses in a murder case, in paragraph nos.11 and 12 amongst other observed:11. In view of ..................................................................... .............................................Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the

421

conf.5.09

quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise when only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain may precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witnesses, which is the only reliable evidence in support of the prosecution.

The said observations clearly reveal that the prosecution is only required to examine the witness necessary to unfold the prosecution story. Viewed from that angle, said Rammani Mishra can not be said to be a person necessary to unfold any part of prosecution story remained to be unfolded at the trial. Non examination of the said witness cannot be considered to be either detrimental or fatal to the prosecution nor any adverse inference against the prosecution is required to be drawn on that count.

503.

The learned APP by taking us through the reasoning

recorded in paragraphs 231 to 238 of the judgment contended that the reason given therein for not accepting the evidence of PW-19 and

422

conf.5.09

particularly the identification of A1 and A3 made by him, is not sound. She urged that the evidence of PW-19 in terms reveals that on 28th August 2003 on his own he had been to the Police Station after reading the news and particularly the statement of taxi driver who had survived after the blast of his taxi due to explosion at Gateway of India. She urged that the said event had occurred much earlier even before arrest of the accused which were effected on 31st of August 2003 and 1st September 2003. It was urged that in light of the said fact, there was absolutely no reason to discard the evidence of the said person who had approached the Police for helping them in the investigation of such a heinous crime. She urged that all the reasons given for discarding his evidence are either contrary to the record or based on surmises not supported from the material on record.

504.

In the said context after carefully considering the evidence of

PW19 in its entirety, we find merit in the submission of learned APP that inability of PW 19 to tell the registration number of auto rickshaw which was parked in front of his factory on the relevant date and the one from which the big air bag of gray colour was taken out by rickshaw driver and he was followed by two ladies and one girl and then the said person was approaching towards the house of A2, cannot be said to be sound ground for doubting/discarding the identification of

423

conf.5.09

the accused persons i.e. A1 and A3 made by him at the trial. We agree with the learned A.P.P. that considering the events as occurred in proper perspective the same reveals that PW 19 was mainly interested in shifting rickshaw halted from the spot in front of his factory to avoid any obstruction to the tempo which was to arrive at his factory. For that he would naturally pay attention to the person who had passed the said rickshaw and/or towards the persons who were occupying the said rickshaw, rather than to the registration number of the rickshaw. Hence, we find force in the submission of learned A.P.P. that it was not for PW 19 to pay attention to registration number of the said

rickshaw, but there was all probability to see and remember the person to whom he had told for parking the rickshaw at some other place.

505.

The learned APP urged that considering the answers given

by PW-19 during the cross examination and referred by the Trial Court in proper perspective it is difficult to accept the inference drawn that evidence of PW-19 about his knowledge of the bomb blast was discrepant and therefore not reliable. It was urged that considering the reason given by the witness to approach the Police and the answers given during the cross examination, no such inference as drawn was warranted.

424

conf.5.09

506.

After carefully considering the evidence of PW19 and the

cross examination effected we find substance in the submission that from the answers elicited during the cross examination, it cannot be said to have affected the core of his version about the events narrated by him. The reason given by him for asking rickshaw driver - A1 to park the rickshaw elsewhere is not found shattered during the cross examination. Similarly the answers given in the examination reveals that the incident of talking with A1 had lasted for about 7 minutes. Thus, taking into account the manner in which the incident had occurred, it is difficult to hold that PW19 had no fair opportunity to observe the said persons and Nasir A1 and A3 with whom he had come across during the said incident.

507.

Even the case regarding the answers surfaced during the

cross examination of PW19 also reveals that he had not seen full news on T.V. while at Surat. Furthermore, he categorically answered that after returning to home, he had seen the news in the night time. It has also surfaced that he became aware to some extent on 27.8.2010 and fully on 28.8.2010 about the passengers concerned with the incident having boarded the taxi at Azad lane. Similarly, during cross

examination PW19 in no uncertain terms has stated that after seeing T.V. news at Surat on 27.8.2003 he had come to know only about the

425

conf.5.09

incident of bomb blast at Mumbai and thus the said answer also signifies that then he had not felt that the passengers with whom he had a quarrel near his factory may be the persons responsible for the bomb blast. Having regard to the said answers, it is difficult to countenance the finding of the trial court in discarding the evidence of PW19 for the reasons recorded in the paragraph 231 to 235.

508.

Learned APP has made similar submission regarding

discarding of evidence of PW20 Ramchandra for the reasons recorded in paragraph no.238. The prosecution has examined the said witness on the point of having come across the taxi in question on the relevant day and then having seen one male passenger sitting on the front seat getting down and so also two ladies and one girl from the rear side and then himself having heard someone from taxi calling him as Guptaji (PW 20) and having seen his friend PW15 Shivnarayan Pande coming towards him from the taxi. His evidence reveals that while chit-

chatting with PW15, the said passenger had told PW15 that he should take the taxi to pay and park area at Gateway of India. It also reveals that he was insisting PW15 to go early at the parking place. Therefore, PW 20 had told PW15 to go and he left towards Bhid Bhajan Mandir. His (PW 20) evidence reveals that by the time he reached near Regal Cinema he heard big sound of explosion and saw police proceeding

426

conf.5.09

towards the scene of offence. PW20 had also deposed of having identified A1 and A3 at T.I. Parade at Arthur Road Jail on 6.10.2003 as being the passengers in the taxi driven by PW 15.

509.

After carefully considering the manner in which the said

incident had occurred, the time period for which the same had lasted, the fractionary period for which attention of PW20 would have been drawn towards the passengers in the taxi, we do not find any fault with the reasons given by the trial court in paragraph no.238 of the judgment for not accepting the identification of A1 and A3 made by PW20. However, in spite of the same, his evidence would be still available to the prosecution for corroborating the evidence of PW15 about his arrival on the spot and regarding occurrence of the incident and the fact of soon thereafter explosion having occurred.

510.

As a result of the aforesaid discussion it can be safely said

that prosecution has duly established that blast had occurred at Gateway of India due to material containing explosives contained in the bag brought by A1 and kept in the dicky of taxi of PW15 which was parked at the said place. That also establishes that the same was an intentional act committed conjointly by encountered accused Nasir, A1 and A3. Such an inference arises after taking into consideration

427

conf.5.09

their conduct in entire episode inasmuch as engaging the said taxi by Nasir on the previous day and continued its engagement even for the next day, taxi being taken to Gateway of India consecutively for two days and nothing has surfaced on the record as to the movements of A1 and A3 after they had left the taxi on day in question and explosion having occurred at the said place. No explanation is forthcoming regarding the said aspect. Thus, the circumstances established by the aforesaid evidence form a formidable chain leading to the inference of the same being planted in a taxi and getting the same parked at appropriate time at Gateway of India for causing explosion. Needless to add that as observed earlier, in a case relating to circumstantial evidence, the prosecution being bound to exclude only other reasonable hypothesis and not all possible hypothesis, the aforesaid evidence leads to the conclusion about the guilt of the said accused.

511.

The aforesaid inference is further fortified after taking into

consideration matters spelt from the confession of A1 and A3. Needless to add, that confession of A1 of which gist is given earlier squarely reveals involvement of the said accused amongst other in plantation of the said taxi laden with bag containing explosive material at the said spot in pursuance to the conspiracy hatched Even the case regarding the role played by A3 in said episode disclosed from her

428

conf.5.09

confession is no different.

512.

Thus, considering the said prosecution evidence, it will be

necessary to hold that causing an explosion by using explosive substance in a taxi bearing registration No. MH-02-R-2007 by A1 and A3 has been duly established and hence we do not find any fault with the finding to that effect arrived by the trial Court on the basis of evidence on record and consequently convicting the said accused for offences committed by him, due to commission of such acts in pursuance to the conspiracy hatched.

Conspiracy 513. Since it is the prosecution case that the offences committed

by making the said four explosions were the outcome of criminal conspiracy hatched, it will be necessary to have a look at the charges framed at the trial. It, in terms, reveals object of the said conspiracy, the place of hatching the same, the place at which the same was continued and the activities committed by the said conspirators for achieving the said object and in the process the offences committed by them.

514.

Now before taking the process of determining whether the

prosecution by the evidence adduced and referred in earlier part of judgment has established the said prosecution case and consequently

429

conf.5.09

the said offences for which the said accused were charged, it appears proper to take into consideration the provisions pertaining to the offence of conspiracy and under the Evidence Act which are as under:
"120-A Definition of criminal conspiracy- When two or more 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." "120-B. 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 term not exceeding six months, or with fine or with both"

515.

The Apex Court in the case of Yashpal Mittal -vs- State

of Punjab reported in 1978 Crl. L.J. Page 189 = AIR 1977 SC 2433 with regard to offence of conspiracy observed in para 9 to the effect:
The offence of criminal conspiracy under section 120-A is a distinct offences introduced for the first time in 1913 in Chap. V-A of the Penal Code. The very agreement, concert or league is the ingridient of the offence. It is not

430

conf.5.09

necessary that all the conspirators, must know each 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.

516.

The Apex Court in the case of State through Superintendent

of Police, CBI / SIT etc. v. Nalini and ors etc. reported in 1992 (2) RCR/(Crl.) 682 (SC) : 1999 (5) SCC 253 summarized the broad principles governing the law of conspiracy, with a rider that the said summary was not exhaustive of said principles as under:
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 is 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 accused merely entertained a wish howsoever horrendous it may be, that offence be committed. 2. Acts subsequent to the achieving of the object of conspiracy may ten to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.

431 3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused. 4. Conspirators may for example, be enrolled in a chain- A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella-spoke enrolment, where a single person at the centre does the enrolling and all the other members are unknown to each other though they know that there are to be other members. These are theories and in practice4 it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. 5. When two or more persons agree to commit to crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy. 6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators any time before the consummation of the intended objective, and all are equally responsible. What part of 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.

conf.5.09

432 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 the 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 the evidence against some result in 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 of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offender. 8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in any inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. 9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more person enter into a conspiracy, any act done

conf.5.09

433 by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsibly therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies. 10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consent to the object of a conspiracy and goes along with the 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.

conf.5.09

517.

While in a case of Nazir Khan & Others v. State of Delhi the

reported in Citation : (2003)88 Supreme Court Cases 461, Hon'ble Apex Court observed in para-15, 17 & 18 as under:
Para: 15: No doubt, in the case of conspiracy there cannot be direct evidence. The ingredients of the offences are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an

434

conf.5.09

agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Para :17: There is no difference between the mode of proof of the offence of conspiracy and that of any other offence: it can be established by direct or by circumstantial evidence. Para 18: Privacy and secrecy are more characteristics of a conspiracy, than of loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or by circumstantial evidence. It is not always possible to give affirmative evidence about the date of formation of criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference."

518.

The Apex Court while interpreting the provisions in Section

120 A and 120 B of the IPC in the case of Saju v. State of Kerala, 2000(4) RCR ( Crl.) 747 (SC) 378 held :
To prove the charge of criminal conspiracy the prosecution is required to establish that two or more person had agreed to do or caused to be done, an illegal act or an act which is not legal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime of is merely incidental to that object. To attract the applicability of Section 120-B it has to be proved that all the accused had the intention and they had agreed to commit the crime. There is no doubt that conspiracy is hatched in private and in secrecy for which direct evidence would rarely be available. It is also not necessary that each member to a conspiracy must know all the detail of the conspiracy."

435

conf.5.09

519.

Applying the aforesaid principles expounded by the Apex

Court, considering the evidence adduced by the prosecution, it is apparent that the same squarely establishes the prosecution case stated in the charges and consequently commission of the offences for which A1,A2 and A3 were charged at the trial. The said evidence can be broadly divided into two groups i.e. (1) various circumstances established by the said evidence leading to the inference of existence of criminal conspiracy to commit the terrorist act by causing bomb explosions within Mumbai for achieving the object as stated in the charge and (2) the direct evidence fully supporting such a conclusion arising out of the said circumstances established alone or in conjunction with direct evidence of conspiracy adduced by the prosecution in the shape of the evidence of approver PW2, and confession of A1, A2 and A3. 520. In the discussion made, so far, we have sufficiently dealt

with the evidence adduced by the prosecution. We do not propose to once again recite the same and only propose to recite the circumstances arising out of the same which are as under:(i) an unsuccessful attempt was made to commit an by

explosion in public transport vehicle BEST bus alarm clock and detonators in BEST bus

planting a crude bomb made by means of gelatin sticks, bearing

436

conf.5.09

registration no. MH-01-H-8765 near Seepz Bus Depot MIDC on 2nd December, 2002 during the evening. (ii) the involvement of A1 and A2 has been established in an attempt to commit said explosion. (iii) successfully an explosion was caused by similar

method in public transport vehicle BEST bus by planting a crude bomb made by means of gelatin sticks, alarm clock and detonators in BEST bus bearing registration no.MH-01-H-8246 for route No.340 near Ghatkopar on 28th July, 2003 causing extensive damage to the said bus and three auto-rickshaws and two motor-cycles and one Quallies Jeep and nearby buildings and death of two persons and injuries to 60 persons. (iv) the involvement of A2 and A3 has been established in an attempt to commit said explosion. (v) further successful explosion of higher magnitude was caused by similar method with the change of using public transport vehicle a motor taxi by planting a bomb made by means of RDX material and detonators in motor taxi bearing registration no. MH-02-R-2022 at Zaveribazar near Mumbaidevi temple- market place on 25th August, 2003 during the evening causing extensive damage to the said taxi and seven more taxi, two-wheelers and three cars in the vicinity and to nearby buildings, shops and causing death of 36 persons and injuries to 138 persons.

437

conf.5.09

(vi)

the involvement of A2

along with encountered

accused Nasir has been established in committing the said explosion. (vii) on the same day i.e. on 25th August, 2003 within one and half hour another successful explosion of higher magnitude was caused by same method by using public transport vehicle a motor taxi by planting a bomb made by means of RDX material and detonators in motor taxi bearing registration no. MH-02-R-2007 near crowded place of Gateway of India causing extensive damage to the said taxi and seven more taxi, two-wheelers and three cars in the vicinity and to nearby buildings, shops and causing death of 16 persons and injuries to 46 persons. (viii) the involvement of encountered accused Nasir, A1 and A3 has explosion. (ix) the explosive material such as gelatin sticks and been established in committing the said

alarm clocks of similar nature as used for first two incidents and detonators were recovered at the behest of A2 soon after his arrest on 31st August, 2003 from his residence as well as the residence of A1 and A2.

(x) In the month of July, 2003, encountered accused Nasir along with A1 had been to the shop of PW4 and PW5 and purchased pre-paid sim-cards of Mobile Nos. 9892451164

438

conf.5.09

and 9892077831 and given the said numbers to A1 with a direction to contact him on that number. (xi) On 31st August, 2003 soon before proceeding to

Gateway of India from Andheri , A1 had given a call on mobile to Nasir on Mobile No.9892451164. (xii) On 31st August, 2003 after getting the taxi

ladden with explosives at Zaveribazar, at about 12.10, A2 had left the same on the pretext of calling the customer to whom the luggage from the same was handed over and from STD booth of PW28 , a distance away from the said spot had given a call on the mobile phone of Nasir bearing No.9892451164. (xiii) Each of A1, A2 and A3 soon after their arrest had

made confession revealing practically the same reason because of which the explosions were caused in Mumbai. (xiv) In spite of the investigation, no clue and or evidence was received by the Police of anybody else was responsible for causing the said explosion and/or the same being caused for any other reason than the one disclosed from the confession of the said accused. (xv) Amongst other material, 92 gelatin sticks, 8 detonators, two alarm clocks and wire cutter were found in the dicky of 800 Maruti Car by which encountered accused had been to the area of Ruparel College, Matunga i.e. the

439

conf.5.09

place at which he was intercepted and came to be encountered. 521. After having considered the circumstances and furthermore

the potential of the same, it definitely has an effect to form a formidable chain detonating that the said explosions committed were outcome of criminal conspiracy hatched to cause the serial explosions in Mumbai. The same is apparent from the fact of one or more from the arrested accused and encountered accused figuring in commission of relevant acts which has led to cause the said explosion. The same is also apparent from the modus of operation effected i.e. using public transport vehicle and/or small public transport vehicle for parking them at busy locality to cause substantial damage for causing the terror in the public at large and in particular, people of Mumbai. Needless to add that no other reason for causing any of the said explosion is forthcoming, is also an additional circumstance fortifying the conclusions drawn from the said circumstance.

522.

The said inferences are further fortified from the matters

spelt in detail from the evidence of PW2 which we have dealt earlier. Instead of once again repeating the said matters, it can be safely said that his evidence clearly denotes that at the relevant time himself Nasir, A1 and A2 and other wanted accused being the members of

440

conf.5.09

Lashkar-E-Toiba had hatched conspiracy at Dubai for commission of blast in India for taking revenge for atrocities on Muslims due to occurrence of Godhra incident and for such purpose A1 obtained training of handling arms and ammunition before returning to India, and having executed a plan with the assistance of A2 and A3 and Nasir who played key role in the same.

523.

Similarly, the matters from the confessions of each of A1,

A2 and A3 reinforce the prosecution case as revealed from the evidence of PW2 with further details therein regarding the events for which each of the said accused was party and within their personal knowledge. Since gist of the said confession has been already

reproduced by us earlier and such matters are spelt from the same, we do not propose to once again enlist the same. Even though as per the provisions of POTA confession of any of the accused would be good evidence only against himself, still considering the confessions of each of the said accused with the other evidence, other than that of PW2, it leads to the inevitable conclusion that each of the said accused were

441

conf.5.09

the co-conspirator for the conspiracy to commit the bomb blast in Mumbai. 524. Thus, the acts/offences committed by A1, A2 and A3 being

in pursuance of the conspiracy to commit the bomb blast in Mumbai, each of them has been rightly held guilty by the trial Court for commission of the said offences in pursuance of the conspiracy. We are unable to find any fault with the said finding. As discussed earlier, the learned defence counsel have not disputed the other facets i.e. the injuries caused to the persons, death ensued and damage caused to the property due to commission of blast at Ghatkopar, Zaveribazar and Gateway of India and an attempt to achieve such results by attempting to cause explosion at MIDC Seepz. 525. To sum up, there is sufficient evidence on record to hold that

the accused A1 to A3 are guilty for commission of the offence of Terrorist Act in furtherance of conspiracy, attempt to commit the terrorist act, offence of murder, attempt to commit murder and offence under Section 427 of IPC and so also the offence under section 3 of Explosive Substances Act, offence under Section 9(b) of Indian Explosive Act and offence under section 3 of Damage to Public Property Act. In view of the same, no fault can be found with the findings reached by the trial Court.

442

conf.5.09

526.

At the outset, we may note that although as per the

prosecution case, accused Nos.1 to 3 were involved in commission of acts while executing their plans of causing blasts at four different places and that each incident itself was a terrorist act, the charge ought to have been specific to each incident and the concerned accused having been found guilty of commission of the offence pertaining to respective incident ought to be sentenced separately. The charge of conspiracy would be relevant to each of the incidents as well as being substantive offence of hatching conspiracy and of being a coconspirator. For which, the concerned accused ought to be proceeded separately. Indeed, the charge as framed is comprehensive charge covering all the incidents but not separate charge as ought to have been framed. As a result, the Trial Court even after recording finding of guilt of the respective accused in relation to specific incident and on the charge of conspiracy and abetment, while awarding sentence, has not awarded sentence for each of the offence pertaining to separate incidents and of conspiracy and abetment respectively. In the present proceedings, we intend to award sentence to the respective accused, keeping in mind their involvement in the concerned incidents which by itself is a terrorist act and independently for the substantive offence of conspiracy and/or abetment. By doing so, no prejudice would be

443

conf.5.09

caused to the accused as the entire matter is before us in the form of confirmation proceedings and appeal preferred by the accused.

Sentence

527.

In the context of the sentence awarded and particularly death

sentence, Mr. Pasbola, the learned counsel for A3 urged that guidelines regarding giving extreme penalty of death are found in the decision of Bachan Singh vs. State of Punjab reported in AIR 1980 S.C. 898. He urged that in paragraph no.195 of the said decision the Apex Court has observed that(a) the extreme penalty can be inflicted only in gravest cases of extreme culpability; and (b) in making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also.

He urged that said decision reveals that while considering the question of giving such extreme penalty due regard is required to be given both to the crime committed and the criminal committing the same. It is urged that in the said process aggravating circumstances as well as the mitigating factors relevant to the crime are required to be taken into consideration. He urged that in paragraph no.200 of the said decision the Apex Court noted some of the aggravating circumstances:

444

conf.5.09

(a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the union or of a member of any police force or of any public servant and was committed----(i) while such member or public servant was on duty ; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a Police Officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.

He urged that, however, the Apex Court therein preferred not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.

528.

He urged that the Apex Court by making reference to the

earlier decision in case of Rajendra Prasad .vs. State of U.P. reported in AIR 1979 SC 916 further observed in paragraph no.202 to the effect:
202. In Rajendra Prasad, the majority said : It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and

445

conf.5.09

society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6). Our objection is only to the word only. While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and society, public order and the interests of the general public may provide special reasons to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302, Penal Code, being reasonable and in the general public interest, do not offend Article 19 or its ethos , nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Sec. 302, Penal Code, fully apply to the case of Sec. 354 (3) Code of Criminal Procedure, also. The same criticism applies to the view taken in Bishnu Deo Shaw .v. State of West Bengal, (1979) 3 SCC 714, which follows the dictum in Rajendra Prasad (ibid).

529.

The learned counsel thereafter by making a reference to the

paragraph no.204 of the Bachan Singh decision urged that mitigating factors be also taken into account, namely :
Mitigating circumstances :- In the above exercise of its direction in the above cases, the court shall take into account the following circumstances : (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

446

conf.5.09

(5) That, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused shows that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

He urged that Apex Court

with regard to the said

circumstances further observed in paragraph no.205 to the effect:

205 : We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several State of India, there are in force special enactments, according to which a child that is, a person who at the date of murder was less than 16 years of age , cannot be tried, convicted and sentenced to death or imprisonment for life for murder nor dealt with according to the same criminal procedure as an adult. The special acts provide for a reformatory procedure for such juvenile offenders or children.

530.

The learned counsel thus contended that considering the said

landmark decision and trend of decisions thereafter clearly indicate that (1) gravity of an offence though relevant has not been always materially relevant and the same is required to be determined qua the circumstances relevant to the concerned accused; (2) secondly the aspect of accused being beyond rehabilitation is mainly required to be taken into consideration. He urged that considering both the aspects in the light of the evidence of the approver and the circumstances against A3 and even the confession made by her clearly indicates that no death

447

conf.5.09

penalty warrants to be given to her. He urged that the same is amply clear as the said Pardanashin lady had acted under the domination of her husband and his friend. He urged that in our country the wives always considers that it is their bounden duty to support and help their husbands. He urged that the said aspect was clearly lost sight of by the trial Court. He urged that trial Court has failed to take into

consideration mitigating circumstances against her.

531.

The learned counsel further urged that the evidence surfaced

in the case reveals that A3 has played very limited role i.e. either to accompany her husband or his friend while they had carried the bag containing the bomb. Though it is urged that she was involved in the preparation of bomb hardly any evidence has surfaced to indicate any active overt act committed by her in that regard. The evidence also

does not indicate that she was the main member either for hatching the conspiracy and/or executing the same. He urged that taking into consideration the character of the evidence against her that is of approver and her own confession and even the same not disclosing that she had carried explosive material/bomb or even any other weapon, she cannot be said to be deserving extreme penalty. It was urged that the fact of cross-examination of the matter stated in the confession or the evidence of the approver indicates that her fate would be dependent

448

conf.5.09

upon the say of somebody.

It was urged that herself making a

confession is also indicative of repentance and/or at least hope for reformation being not lost.

532.

He further urged that examining question of A3 warranted

to be awarded death penalty; after considering the peripheral role played by her in the conspiracy a fact will be required to be taken into consideration that she is having children and particularly a young girl. He urged that husband of A3 i.e. A1 being also convicted and

sentenced to suffer death penalty, also cannot be lost sight of as awarding similar penalty to her is likely to deprive parenthood to the said children. He urged that the said mitigating factors will be

required to be taken into consideration as indicated by the decision in the case of Bachan Singh (supra).

533.

The learned counsel further urged that two cases involving

commission of crime can never be identical. He urged that socio economic conditions regarding concerned accused are always required to be taken into consideration and in the event of there being a chance of rehabilitation of accused person, then he should not be awarded extreme penalty of death. The learned counsel thereafter by making reference to the decision in the case of Santosh Kumar

449

conf.5.09

Satishbhushan Bariyar vs. State of Maharashtra reported in (2009) 2 SCC (Cri) 1150 and particularly paragraph nos. 55, 57, 64, 69, 76, 79, 90, 91, 100, 103, 105, 157 urged that , the same also reveals that nature of the offence committed though required to be taken into consideration, the same is one of the factors and not the sole factor upon which the question of imposing death penalty can be decided. He urged that the role played by the concerned accused is predominantly taken into consideration. He urged that extent of his involvement is always a guiding factor while deciding the question of extreme penalty to him. He urged that considering the case of A3 in light of the

principles stated in the said decision, she does not deserve to be awarded death penalty.

534.

The learned counsel thereafter by making reference to the

decision in a case of Kannan and another .vs. State of Tamil Nadu reported in (1982) 2 SCC 350 urged that the same squarely reveals that in event of an accused is found to have acted under the domination of the fellow accused, then the same would be redeeming feature for not awarding the death sentence. It was urged that in the said cases the concerned accused is found to be a junior partner having acted under domination of fellow accused after taking into consideration other circumstances relevant to the crime such as he was an instrument in the

450

conf.5.09

hands of the other accused, 7 years had passed after imposition of death penalty, the Apex Court had substituted death sentence to the imprisonment of life. It was urged that in light of the similar factors being present in the case of A3, her case would be covered by the said decision improper. and as such awarding death sentence to her would be

535.

The learned counsel thereafter by making reference to the

decision in the case of Mohan and others vs. State of T.N. reported in (1998) 5 SCC 336 and particularly the observations made in

paragraph no. 8 of the same and so also the decision in the case of Suresh Chandra Bahri vs. State of Bihar reported in 1995 SCC (Cri) 60 urged that the said decisions also show the importance of mitigating circumstances to be taken into consideration and so also

the role played by the accused required to be taken into consideration while determining question of grant of death penalty.

536.

Mr. Wahab Khan, learned counsel for A1 stated that he is

adopting the legal submissions with regard to awarding of death penalty pointed out by learned counsel Mr. Pasbola. He further urged that A1 being the husband of A3, his case is also on par with that of his wife. It is urged that even though A1 was said to be party to

451

conf.5.09

conspiracy to commit the bomb blast in Mumbai, still the evidence surfaced has also revealed that he was not the main architect of the said conspiracy. It was urged that considering the evidence of

approver, it is crystal clear that A1 was basically not criminal but was got webbed in a conspiracy due to having come across and in association with the terrorists in Dubai.

537.

It was urged that the evidence also reveals that the idea of

revenge had dragged him in the net of conspiracy. It was further urged merely because he was party to the commission of terrorist act and/or the acts committed having resulted in death of persons or causing injury to the person or damage to the property should not be taken as a guiding factor for deciding the quantum of sentence as the decisions pointed also reveal that gravity of crime is not the sole circumstance upon which such aspect is to be decided. It was urged that evidence also reveals that he was a family person having children and death penalty would deprive them of their father. It was urged that fact of himself having confessed about the crime also reveals that even for him the hope of reformation is not lost. It was urged that thus

considering all circumstances relevant to him, awarding death penalty would be harsh. Instead, the sentence be reduced to life sentence

452

conf.5.09

and/or to a sentence of fixed term such as 20 to 25 years as would be deemed fit and proper by the Court.

538.

Mr. Kunjaraman, learned counsel for A2 also made similar

submissions for not awarding death penalty to A2 by harping upon the fact of said accused also having made confession, his age and the peripheral role played by him being indicative that he was also an instrument in the hands of main conspirator deceased accused Nasir.

539.

The learned APP repelled the aforesaid submissions by

placing reliance upon the same decision in the case of Bachan Singh (supra), and made exhaustive submissions by taking us through the relevant paragraphs thereof. She urged that even the said decision in terms reveals that there are some category of cases which would warrant imposition of extreme penalty. Learned APP thereafter

pointed out that the decision of Bachan Singh was also followed in a case of Machhi Singh vs. State of Punjab reported in AIR 1983 SC 957. She urged that considering the case of offences for which the trial was held and sentence is awarded are not the offences under the ordinary law but under the POTA legislated to curb the menace of terrorism from which not only our country but the entire world has suffered in last two decades. She urged that existence of rarest of a

453

conf.5.09

rare case may be a precondition for awarding a death penalty for an offence under ordinary criminal law. However, such a penalty should be considered as a rule for an offence relating to terrorist activities and particularly the offence of conspiracy to commit terrorist act and/or for commission of terrorist act which has the cascading effect of causing death of law abiding citizens or injuries to them or loss of their property. She urged that such acts which result in taking away and/or to disturb and/or to disrupt the life of law abiding peace loving citizens should be viewed with all seriousness. She urged that the offences under terrorist act are directed against not only the society but also against the nation, unlike offences under ordinary law which are directed against victims and at best, against the Society. She urged that the offences committed in the present case being of serious nature rather rarest of rare offences, the culprits found guilty for commission of such offences will be required to be dealt sternly. She urged that effect of such offences are not restricted to the damage caused on the relevant day but has an impact of causing terror in the minds of law abiding citizens for long drawn period even thereafter.

540.

Learned APP thereafter pointed that none of the decisions

relied by learned defence counsel pertain to serious potential and nature, as in the offences in the present case. She urged that offences

454

conf.5.09

therein can never be equated with the offences in the present case. By pointing the decision in the case of Narayan Chetanram Chaudhary vs. State of Maharashtra reported in (2000) 8 SCC 457 and

paragraph no.44 from the same, she urged that the same squarely repels the submission of the defence counsel that in event of the evidence being that of approver, it would not be proper to awarded the death penalty. Inasmuch as in the said decision such a penalty has been awarded in spite of main prosecution evidence being that of approver.

541.

The learned APP thereafter by pointing out the effect of the

offences committed which has resulted in causing death of 54 persons, injuries of serious nature to 244 persons and damage to the property to the tune of Rs.1,60,00,000/shows the magnitude of the crime

intended to be committed and in fact committed. The learned A.P.P. urged that the evidence surfaced also reveals that since no casualty occurred in Seepz incident due to failure of bomb and minor damage ensued due to the explosion occurred at Ghatkopar, the culprits decided to cause serious harm and to effectuate that plan, changed the

explosive material from gelatin to RDX. Moreover, the reaction of the culprits after occurrence of incident at Gateway of India and Zaveri Bazar including that of congratulating persons responsible for causing them, speaks volumes about the mind-set of culprits. She urged that

455

conf.5.09

possibility of reformation is apparently absent as in spite of such a damage being caused, none of them had been to the Police or showed repentence. She urged that in the said backdrop, merely because culprits had made a confession after the serious blasts consequent to their arrest, it cannot be construed as a circumstance indicating that there is hope of reformation. It was urged that in all probability the same is indicative of calculated effort to get rid of the harsh sentence contemplated under terrorist laws.

542.

The learned APP by pointing the decision in a case of

Renuka Bai vs. State of Maharashtra reported in (2006) 7 SCC 442 urged that the said decision itself reveals that merely because the offence is committed by a woman, would not be a ground for not awarding a death penalty. She urged that in the said case having due regard to the crime committed, the death penalty imposed was confirmed.

543.

The learned APP thereafter by placing reliance upon the

decision in a case of State of Tamil Nadu .vs. Nalini reported in AIR 1999 SC 2640 i.e. Rajiv Gandhi assassination case and

particularly the discussion made in paragraph 347 to 350 urged that in the said case the Apex Court had classified the accused persons

456

conf.5.09

involved in conspiracy in four categories and on the basis of the same considered question of awarding death penalty after taking into consideration all relevant circumstances qua the accused. She urged even on the said basis after considering the circumstances A1 to A3 deserves to be awarded death penalty considering enormity of crime committed by them due to vengence.

544.

The learned APP thereafter by placing reliance upon the

decision in the case of Dhananjoy Chatterrjee .vs. State of W.B. reported in (1994) 2 SCC 220 and particularly the discussion in

paragraph nos. 10,11,14 and 15 therein urged that the death penalty was awarded to the culprit who was security guard had committed rape on an innocent and defence less young girl of 18 years and thereafter committed preplanned cold blooded murder of the said victim. Learned APP laid her finger on the observations made in paragraph no.15 of the said decision to the effect :
"15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment."

457

conf.5.09

545.

Learned APP thereafter by making reference to the decisions

in the case of Smt. Triveniben Vs. State of Gujarat reported in AIR 1989 SC 1335; Shersingh and others Vs. State of Punjab reported in (1983)2 SCC 344 urged that delay in the execution of death sentence awarded and present proceeding involving the question of

confirmation or otherwise of death sentence awarded by trial court subject to confirmation of the same by this court, the passage of time in between would never be a ground for not confirming the same or awarding a lesser sentence. According to Ld. A.P.P., laws delay can be no basis to show leniency to the Accused against whom the charge of engaging in terrorist activity is established.

546.

Having already referred and quoted relevant extracts from

most of the landmark decisions of the Apex Court regarding the aspect of awarding death penalty it appears proper to recite relevant matters from the decision in the case of Macchi Singh vs. State of Punjab reported in AIR 1983 SC 957. In this decision, on the question of awarding death sentence and the aspect of rarest of rare case, in paragraph no.32, the Apex Court has observed thus :
32. The reasons why the community as a whole does not endorse the humanistic approach reflected in death sentence in no case doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of reverence for life principle. When a

458

conf.5.09

member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realised that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by killing a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so (in rarest of rare cases) when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance: (1) Manner of Commission of Murder : When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community; (2) Motive for commission of murder : When the murder is committed for a motive which evinces total depravity and meanness; (3) Anti-social or socially abhorrent nature of the crime: when murder of a member of a schedule caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath. This would also cover bride burning and dowry death cases; (4) Magnitude of crime : When the crime is enormous in proportion, for instance, when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community or locality are committed; and

459

conf.5.09

(5) personality of victim of murder : When the victim of murder is an innocent child or a helpless person or a public figure. If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court must proceed to do so.

547.

In the same decision, in the case of Machhi Singh (supra),

after considering earlier decision in the case of Bachan Singh vs. State of Punjab reported in AIR 1980 SC at page 898 the Apex Court about death sentence further observed in paragraph nos. 33 and 34 to the effect :
33. In this background the guidelines indicated in Bachan Singhs case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singhs case : (i) the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability ; (ii) before opting for the death penalty the circumstances of offender also require to be taken into consideration along with the circumstances of the crime (iii) life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances,

460

conf.5.09

(iv) a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. 34. In order to apply these guidelines inter-alia the following questions may be asked and answered : (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for death sentence ? (b) are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?

548.

After taking into consideration the principles pointed from

the decision in a case of Bachan Singh, Rajendra Prasad and Machhi Singh (supra) and so also in the case of Mohan and others (supra), and Sureshchandra Baheri (supra) as pointed out by learned counsel for both parties, no doubt can be entertained about the proposition canvassed by learned counsel for A1 to A3 that while deciding the question not only the circumstances in which the crime has been committed and of the offenders, but also the balance sheet of the aggravating circumstances and mitigating factors are required to be taken into consideration. However, in the same context, we also find force in the submission of learned APP that all the said decisions pointed by the defence counsel pertain to offences under the ordinary

461

conf.5.09

Law. In the present case, however, the A1 to A3 have been found guilty for offences which are predominantly offences under Terrorists Laws i.e. POTA. The gravity of the said offence is known to be enormous. We also find force in her submission that by and large the offences under Terrorists Law are the aggravated form of offences under other enactment committed with the intent, knowledge as envisaged under the definition of Terrorists Act under POTA. Having regard to the same, we find that learned APP is right in contending that the said aspect cannot be lost sight of.

549.

Similarly, after considering the decision pointed by her in the same

the case of Narayan Chetanram Chaudhary (supra),

repels the defence submission that upon the evidence of approver awarding of death penalty is not warranted. Needless to add that the said decision itself reveals that even upon such evidence and in the light of the circumstances of the case, a awarded. Similarly, death penalty could be

considering another decision in the case of

Renukabai (supra) pointed by her we find substance in her submission that it is not as if, in a fit case, such a sentence cannot be awarded to a woman accused. So also the decision in the case Dhananjoy

Chatterrjee (supra) pointed by her also supports her submission that while considering imposition of punishment not only the right of the

462

conf.5.09

criminal but also the rights of the victim of crime and the society at large are also required to be taken into consideration.

550.

Similarly, after careful consideration of the evidence in this

case, reliance placed on Kannan and another (supra) by the defence counsel is misplaced. In our view, there is no legal evidence on record that A3 committeed the offence due to domination of fellow accused (A1). No such plea is found even in the statement of A3 under Section 313 of the Code. That argument for not awarding penalty of death to A3, as canvassed by learned defence counsel, therefore, deserves to be rejected. Be that as it may, the perusal of the reported decision relied by the defence reveals that though, in the said case death penalty was not awarded, the same was not due to the said sole reason but other factors were also taken into consideration for reducing sentence to life imprisonment.

551.

Now,

considering the question arising for our

consideration in the present proceedings, in light of the aforesaid principles regarding awarding extreme penalty of death and the same being required to be decided qua three accused found involved in the conspiracy and not large number of an accused such as 26 as were

463

conf.5.09

involved in the case of Nalini (supra), we are of the considered opinion that method followed by the Apex Court in the said case of classifying the accused in four different categories qua the role played by them in the offence of conspiracy for which they were found guilty or for commission of an offences in pursuance of the said conspiracy; will not be of any avail. Instead, the question of quantum of sentence in this case will be required to be decided upon the principles laid down in the cases of Bachan Singh, Rajendraprasad and Machisingh, etc.

552.

From the said angle, the reference to the decision in a case of

Bachan Singh (supra) and careful consideration of the observations made in paragraph no.203 to the effect :
"In several countries which have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first degree which in the absence of any ameliorating circumstances is punishable with death. Such rigid categorization would dangerously overlap the domain of legislative policy. It may necessitate, as if were, a redefinition of 'murder' or its further classification. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible.. But this much can be said that in order to qualify for inclusion in the category of "aggravating circumstances" which may form the basis of 'special reasons' in Section 354 (3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree."

464

conf.5.09

553.

Without once again enlisting each of the aspect pertaining to

the the acts and offences committed by A1, A2 and A3 in pursuance of the conspiracy hatched as established by the prosecution evidence, it can be safely said that the evidence has established that A1 and A2 were members of terrorists organization Lashkar-E-Toyaba. The acts committed by them were not outcome of any momentary pulse of the weakness of mind but were committed by them out of well designed conspiracy/plan hatched. A1 for the said purpose with definite design had been to India. Even after failure of their attempt to commit an explosion at MIDC and shortly, thereafter, A1 and A2 had continued with the same design and committed an explosion on 28th of July, 2003. The evidence also reveals that after observing the results ensued out of the said explosion which had caused death of two persons, injuries to the several and damage to the properties of innocent persons, they had no repentence for the ghastly acts committed by them, nor any remorse for the same. On the contrary they continued with such activities and geared up to commit explosions of higher magnitude and in the said process committed the explosions at Zaveribazar and Gateway of India. Even after their arrest, there was no remorse or repentence by any of them. Though it is true that A1, A2 and A3 had made the confessions, it was only after their arrest. At any rate, the significance of the said circumstance is lost due to

465

conf.5.09

retraction made by them

at a later stage.

The possession of

contraband material with them is also a telling circumstance of the conspiracy having not come to an end. Needless to add the further progress of the same was stopped due to their arrest. Even the case of A3 also does not appear to be different as she had also repeatedly associated herself with her husband in commission of the further explosion. Thus, all the said circumstances being indicative of the said accused persons being coveted members of terrorists

organization, we do not find any fault in the sentence imposed upon them by the trial Court.

554.

We find force in the submission of the learned A.P.P. that in

the present case, we are concerned with accused who have been found guilty of having indulged in terrorist activities. They must be dealt with sternly considering our finding that the accused 1 to 3 had not committed the said offence under influence of extreme mental or emotional disturbance but in a well planned manner in furtherance of criminal conspiracy to destabilise the Country by causing serial bomb blasts in City like Mumbai which act was in retaliation to Godhra Blast incident. We are in agreement with the argument of the learned A.P.P. that none of the accused i.e. A1 to A3 have shown repentence at the earliest opportunity but continued to work on intensifying their

466

conf.5.09

destructive activity by causing more high intensity blasts, coupled with the fact that there is no probability of any of these accused being reformed and rehabilitated. In that, not satisfied with the outcome of the incident at Seepz and the second attempt at Ghatkopar, they worked on a plan to cause serial blasts on the same day at Zaveri Bazar, Gateway of India and in the process caused death of 54 persons and injuries to 244 persons and damage to the property both public and private to the tune of around Rs.1,60,00,000/- (Rupees One Crore Sixty Lakhs). The inevitable conclusion is that it is a rarest of rare case, deserving extreme penalty.

555.

Accordingly, we proceed to dispose of all the above

numbered matters with the following order :

I. Re : Confirmation Case No.5 of 2009: 1) The conviction and sentence of Death awarded by the Trial

Court to each of Accused No.1 Sayyed Mohd. Hanif Abdul Rahim, Accused No.2 Ashrat @ Arshad Shafique Ahmed Ansari and Accused No. 3 Fehmida w/o Sayyed Mohd.Hanif with regard to charge of conspiracy is hereby confirmed.

467

conf.5.09

2)

Re : Accused No.1: (i) However in substitution of Order of Conviction and sentence No.1 Sayyed

recorded by the Trial Court, the said accused

Mohd. Hanif Abdul Rahim for the acts committed by him on 2nd December 2002 along with Accused No 2 Ashrat in attempting to cause explosion by planting a bomb in BEST Bus No MH-01-8765 i.e. M.I.D.C Seepz incident is also found guilty and convicted for commission of offences under (a) Section 307 of I.P.C and is sentenced to suffer R.I.

for 7 years and to pay a fine of Rs.5000/- and in default, to suffer R.I for 3 years. (b) Section 427 r/w Section 511 of I.P.C and is

sentenced to suffer R.I for 1 year. (c) Section 3(3) of POTA and is sentenced to suffer Rs.5000/- and

imprisonment for life and to pay fine of in default, to suffer R.I for 2 years. (d)

Section 3 of Prevention Of Damage to Public

Property Act 1984 r/w Section 511 of I.P.C and is sentenced to suffer R.I for 2 years and pay a fine of Rs 2500. (e) Section 4 of Prevention Of Damage to Public

Property Act 1984 r/w Section 511 of I.P.C and is

468

conf.5.09

sentenced to suffer R.I for 5 years and pay a fine of Rs. 5000/-. (f) Section 5 r/w Section 9-B of Explosives Act, 1884

and is sentenced to suffer R.I. for two years. (g) Section 4 of Explosive Substances Act and is

sentenced to suffer R.I. for 10 years and fine of Rs.5,000/-. (ii) Similarly, in substitution of Order of Conviction and

sentence recorded by the Trial Court, the said accused No.1 for the acts committed by him on 25th August 2003 along with Accused No 3 Fehmida in causing explosion by planting a bomb in Taxi No MH-02-R 2007 i.e. Gateway of India Blast incident is also found guilty and convicted for commission of offence under(a) Section 302 of I.P.C and and sentenced to suffer

Death and for the said purpose is ordered to be hanged by neck till he is dead and is ordered to pay a fine of Rs 5000 and in default to suffer R.I for 3 years. (b) Section 307 of I.P.C and is sentenced to suffer R.I for 7 years and to pay a fine of Rs 5000 and in default to suffer R.I for 3 years.

469

conf.5.09

(c)

Section 427 and is sentenced to suffer R.I for 2

years. (d) Section 3 (2) (a) of P.O.T.A 2002 and is sentenced to death and for the said purpose is ordered to be hanged by neck till he is dead and is ordered to pay fine of Rs 50000 and in default to suffer R.I for 3 years. (e) Section 3 of Prevention Of Damage to Public

Property Act 1984 and is sentenced to suffer R.I for 5 years and pay a fine of Rs.5000/-. (f) Section 4 of Prevention Of Damage to Public

Property Act 1984 and is sentenced to suffer R.I for 10 years and pay a fine of Rs.5000/-. (g) Section 5 r/w Section 9-B of Explosives Act,

1884 and is sentenced to suffer R.I. for two years. (h) Section 3 of Explosive Substances Act and is

sentenced to suffer imprisonment for life. 3) Re : Accused No.2: (i) However, in substitution of Order of Conviction and sentence recorded by the Trial Court, the said accused No.2 Ashrat @ Arshad Shafique Ahmed Ansari, for the acts

470

conf.5.09

committed by him on 2nd December 2002 along with Accused No.1 Sayyad Mohd Hanif in attempting to cause explosion by planting a bomb in BEST Bus No MH-01-8765 i.e. M.I.D.C Seepz incident is also found guilty and convicted for commission of offence under(a) Section 307 of I.P.C and is sentenced to suffer

R.I for 7 years and to pay a fine of Rs 5000 and in default to suffer R.I for 3 years. (b) Section 427 r/w Section 511 of I.P.C and is sentenced to suffer R.I for 1 year. (c) Section 3 (3) of P.O.T.A 2002 and is sentenced to suffer imprisonment for life and to pay fine of Rs 5000 and in default to suffer R.I for 2 years. (d) Section 3 of Prevention Of Damage to Public Property Act 1984 r/w Section 511 of I.P.C and is sentenced to suffer R.I for 2 years and pay a fine of Rs 2500. (e) Section 4 of Prevention Of Damage to Public Property Act 1984 r/w Section 511 of I.P.C and is sentenced to suffer R.I for 5 years and pay a fine of Rs.5000/-.

471

conf.5.09

(f)

Section 5 r/w Section 9-B of Explosives Act,

1884 and is sentenced to suffer R.I. for two years. (g) Section 4 of Explosive Substances Act and is

sentenced to suffer R.I. for 10 years and fine of Rs.5,000/-.

(ii) Similarly, in substitution of Order of Conviction and sentence recorded by the Trial Court, the said accused No 2; additionally for the acts committed by him on 28th July 2003 along with Accused No 3 Fehmida in causing explosion by planting a bomb in BEST Bus No MH-01-H 8246 for Route No. 340 i.e. Ghatkopar Blast incident is also found guilty and

convicted for commission of offence under (a) Section 302 of I.P.C and and sentenced to suffer Death and for the said purpose is ordered to be hanged by neck till he is dead and is ordered to pay a fine of Rs 5000 and in default to suffer R.I for 3 years. (b) Section 307 of I.P.C and is sentenced to suffer

R.I for 7 years and to pay a fine of Rs 5000 and in default to suffer R.I for 3 years. (c) Section 427 and is sentenced to suffer R.I for 2 years.

472

conf.5.09

(d)

Section 3 (2) (a) of P.O.T.A 2002 and is death and for the said purpose is

sentenced to

ordered to be hanged by neck till he is dead and is ordered to pay fine of Rs 50000 and in default to suffer R.I for 3 years. (e) Section 3 of Prevention Of Damage to Public Property Act 1984 and is sentenced to suffer R.I for 5 years and pay a fine of Rs.5000/-. (f) Section 4 of Prevention Of Damage to Public Property Act 1984 and is sentenced to suffer R.I for 10 years and pay a fine of Rs.5000/-. (g) Section 5 r/w Section 9-B of Explosives Act,

1884 and is sentenced to suffer R.I. for two years. (h) Section 3 of Explosive Substances Act and is

sentenced to suffer imprisonment for life. (iii) Similarly in substitution of Order of Conviction and

sentence recorded by the Trial Court the said accused No 2 for the acts committed by him on 25th August 2003 along with co conspirator in causing explosion by planting a bomb in Taxi No MH-02-R 2022 i.e. Zaveri Bazaar Blasts incident is also found additionally guilty and convicted for commission of offence under -

473

conf.5.09

(a) Section 302 of I.P.C and and sentenced to suffer Death and for the said purpose is ordered to be hanged by neck till he is dead and is ordered to pay a fine of Rs 5000 and in default to suffer R.I for 3 years. (b) Section 307 of I.P.C and is sentenced to suffer

R.I for 7 years and to pay a fine of Rs 5000 and in default to suffer R.I for 3 years. (c) Section 427 and is sentenced to suffer R.I for 2 years. (d) Section 3 (2) (a) of P.O.T.A 2002 and is sentenced to death and for the said purpose is

ordered to be hanged by neck till he is dead and is ordered to pay fine of Rs 50000 and in default to suffer R.I for 3 years. (e) Section 3 of Prevention Of Damage to Public

Property Act 1984 and is sentenced to suffer R.I for 5 years and pay a fine of Rs 5000. (f) Section 4 of Prevention Of Damage to Public

Property Act 1984 and is sentenced to suffer R.I for 10 years and pay a fine of Rs.5000/-.

474

conf.5.09

(g)

Section 5 r/w Section 9-B of Explosives Act,

1884 and is sentenced to suffer R.I. for two years. (h) Section 3 of Explosive Substances Act and is

sentenced to suffer imprisonment for life. 4) Re : Accused No.3 : (i) However, in substitution of Order of Conviction and

sentence recorded by the Trial Court, the said accused No.3 Fehmida w/o Sayyed Mohd.Hanif, additionally for the acts committed by her on 28th July 2003 along with Accused No 2 Ashrat in causing explosion by planting a bomb in BEST Bus No MH-01-H 8246 for Route No.340 i.e. Ghatkopar Blast

incident is also found guilty and convicted for commission of offence under (a) Section 302 of I.P.C and and sentenced to

suffer Death and for the said purpose is ordered to be hanged by neck till she is dead and is ordered to pay a fine of Rs.5000/- and in default, to suffer R.I for 3 years. (b) Section 307 of I.P.C and is sentenced to suffer

R.I for 7 years and to pay a fine of Rs.5000/- and in default, to suffer R.I for 3 years.

475

conf.5.09

(c) Section 427 and is sentenced to suffer R.I. for 2 years. (d) Section 3(2)(a) of POTA and is sentenced to

death and for the said purpose is ordered to be hanged by neck till she is dead and is ordered topay fine of Rs.50,000/- and in default, to suffer R.I. for 3 years. (e) Section 3 of Prevention Of Damage to Public

Property Act 1984 and is sentenced to suffer R.I. for 5 years and pay a fine of Rs.5000/-. (f) Section 4 of Prevention Of Damage to Public Property Act 1984 and is sentenced to suffer R.I. for 10 years and pay a fine of Rs.5000/-. (g) Section 5 r/w Section 9-B of Explosives Act,

1884 and is sentenced to suffer R.I. for two years. (h) Section 3 of Explosive Substances Act and is

sentenced to suffer imprisonment for life. (ii) Similarly in substitution of Order of Conviction and

sentence recorded by the Trial Court, the said accused No.3 for the acts committed by her on 25th August 2003 along with Accused No.1 Sayyad Mohd Hanif in causing explosion by

476

conf.5.09

planting a bomb in Taxi No MH-02-R 2007 i.e. Gateway of India Blast incident is also found guilty and convicted for

commission of offence under (a) Section 302 of I.P.C and and sentenced to suffer

Death and for the said purpose is ordered to be hanged by neck till she is dead and is ordered to pay a fine of Rs.5000/- and in default, to suffer R.I. for 3 years. (b) Section 307 of I.P.C and is sentenced to suffer R.I.

for 7 years and to pay a fine of Rs.5000/- and in default, to suffer R.I. for 3 years. (c) Section 427 and is sentenced to suffer R.I. for 2 years. (d) Section 3 (2) (a) of POTA and is sentenced to death and for the said purpose is ordered to be hanged by neck till she is dead and is ordered to pay fine of Rs.50,000/and in default, to suffer R.I. for 3 years. (e) Section 3 of Prevention Of Damage to Public

Property Act 1984 and is sentenced to suffer R.I. for 5 years and pay a fine of Rs. 5000/-. (f) Section 4 of Prevention Of Damage to Public

Property Act 1984 and is sentenced to suffer R.I. for 10 years and pay a fine of Rs.5000/-.

477

conf.5.09

(g)

Section 5 r/w Section 9-B of Explosives Act,

1884 and is sentenced to suffer R.I. for two years. (h) Section 3 of Explosive Substances Act and is

sentenced to suffer imprisonment for life. 5) Substantive sentences awarded to A1, A2 and A3 to run

consecutively. A1, A2 and A3 are entitled for the set off as per the provisions of Section 428 of the Code. 6) The order regarding muddemal property of A1 to A3 is

maintained but it shall remain suspended till the Special Court passes further order dependent on the trial of A4 and A5. 7) The accused/respondents, in particular, A1, A2 and A3 have

been informed that they are entitled to free copy of the Judgment. Office shall take necessary steps to ensure that free copy of the Judgment is delivered to the said accused forthwith. II. Re : Criminal Appeal Nos.880, 857 and 1128 of 2009: (1) The Criminal Appeal No 880 of 2009 preferred by aforesaid Accused No.1 Sayyed Mohd. Hanif Abdul Rahim dismissed. is hereby

478

conf.5.09

(2)

The Criminal Appeal No 857 of 2009 preferred by

aforesaid Accused No.2 Ashrat @ Arshad Shafique Ahmed Ansari is hereby dismissed. (3) The Criminal Appeal No 1128 of 2009 preferred by aforesaid Accused No. 3 Fehmida w/o Sayyed Mohd.Hanif is hereby dismissed.

III. Re : W.P No 2539 of 2008 and Criminal Appeal No 4 of 2009 : (1) In W.P.No.2539 of 2008 : The direction issued by the POTA Central Review Committee to the State Government dated 10th May, 2005 to proceed in accordance with clause (a) of sub section (3) of Section 2 of Prevention of Terrorism (Repeal) Act in respect of Accused No 4 Mohammed Hassan Mohammed Anas Shaikh @ Hasan Bateriwala (Charge-sheeted Accused No.5) and Accused No.5 Mohd. Rizwan Mohd. Issaq Ansari @ Rizwan Ladoowala (Charge-sheeted Accused No.6) is partly maintained only to the extent of withdrawal of prosecution of the above named accused for charge of Section 4(a) of POTA. The direction of the Review Committee regarding all other offences is hereby quashed and set aside with direction to the parties in Writ Petition No.2539 of 2008 to appear before POTA Special Court within four weeks from the date of this order for proceeding against the

479

conf.5.09

above named accused in accordance with the law. Accordingly, the said Writ Petition is partly allowed and is disposed off on the above terms. (2) Criminal Appeal No 4 of 2009 : The order dated 17th November 2008 passed by POTA Special Court with regard to withdrawal of entire prosecution against Accused No.4 Mohammed Hassan Mohammed Anas Shaikh @ Hasan Bateriwala (Charge-sheeted Accused No.5)and Accused No.5 Mohd Rizwan Mohd Issaq Ansari @ Rizwan Ladoowala (Charge-sheeted Accused No.6) is hereby quashed and set aside with directions to the said accused to appear before the POTA Special Court within four weeks from the date of this order with direction to the said court to proceed against the said Accused in respect of all other offences (except offence under Section 4(a) of POTA), in accordance with the law. The Criminal Appeal No 4 of 2009 preferred by the prosecution is partly allowed in the said terms. The entire record and proceedings including the muddemal property of all the accused (A1 to A5) be sent back to the Special Court for continuing with the trial against above named A4 and A5 from the stage ante passing of the order dated 17th November, 2008 and to proceed against them in accordance with law in the light of this order.

480

conf.5.09

556.

After the Judgment was pronounced in open Court including

in the presence of the Accused 1 to 3 being produced on Video Conferencing, Counsel appearing for accused Nos.1 to 3 prayed that the operation of the death sentence be stayed as the said accused may consider of filing appeal against this decision before the Apex Court. We have no difficulty in accepting this request. The death sentence shall remain in abeyance for a period of eight weeks from today.

(P.D.KODE, J.)

(A.M.KHANWILKAR, J.)