Gateway of India Blast Case - Court Verdict

Bombay High Court Bombay High Court The State Of Maharashtra vs Sayeed Mohd.
Hanif Abdul Rahim on 10 February, 2012 Bench: A.M. Khanwilkar, P. D. Kode 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 .. Appellant (Ori. Complt.) versus 1. Sayeed Mohd. Hanif Abdul Rahim, 2. Ashrat @ Arshad Shafiq Ahmed Ansari, 3. Fehmida w/o Sayyed Mohd. Hanif .. Respondents (Ori.Accused Nos.1 to 3) WIT H 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. .. Appellant (Presently lodged at Nagpur Central Prison (Ori.Accused No.1) convicted in the present prisoner matter). versus The State of Maharashtra .. Respondent (At the instance of DCB, CID, Mumbai) WIT H 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.
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The State Of Maharashtra vs Sayeed Mohd. Hanif Abdul Rahim on 10 February, 2012
Presently in Judicial Custody .. Appellant Mumbai Central Prison (Arthur Road Jail), (Ori.Accused No.2) Mumbai . versus The State of Maharashtra .. Respondent (Through : DCB, CID UnitVIII) 2 conf.5.09 WIT H CRIMINAL APPEAL NO.1128 OF 2009 Fehmida w/o Sayyed Mohd. Hanif, Age 43 years, Occ. Housewife, R/o.D-7, Salim Chawl, Chimatpada, .. Appellant Marol Naka, Andheri (E), Mumbai-400 059. (Ori.Accused present in Yerawada Central No.3) (At Prison). versus The State of Maharashtra .. Respondent (At the instance of DCB , CID, Mumbai) WIT H CRIMINAL APPEAL NO.4 OF 2009 The State of Maharashtra .. Appellant 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. .. Respondents (Ori.Accused Nos.4 & 5) WIT H
WRIT PETITION NO.2539 OF 2008 The State of Maharashtra (Ori.Opponent) versus
Petitioner
1. Mohd. Hasan Mohd. Anas Shaikh @ Hasan Bateriwala , Near Nurul Islam Masjid, Sanjay Nagar, Hill No.3, Ghatkopar (W), Mumbai. 3 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, in W.P.No.2539/2008, Appellant in Cri.Appeal No.4/2009, and Respondent in Petitioner 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 4 conf.5.09 Terrorism Act, 2002 (hereinafter referred as "POTA") as amended by Prevention of Terrorism (Repeal) Act, (hereinafter referred as "Repeal Act") 2004 or; (b)Order dated 17th November, 2008 passed on Exh D-116 in POTA Special Case No.1 of 2004 during the of trial after evidence of both the sides at trial was over or; (c)Final judgment and order delivered on midst 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 Chief Investigating Officer (PW 103) ACP Suresh Walishetty at the conclusion of investigation 2004, by of crimes for commission of offences under section 120-B read with sections 302, 307, 326, 324 of four IPC sections 3,4,5 of Explosives Substances Act, 1908 and under sections 5 and 9 (b) of Indian under Explosives and under sections 3,4,5 and 20 of Prevention of Terrorist Act, 2002 against in all six Act, 1884 named in the charge sheet along with wanted accused Shafakat Ali, Khalid Maqsood, Jehangir, accused Bilal, Samiullah and Rehman. 3. During the pendency of the case, pursuant to the prosecution Application dated 5.5.2004 at Exh-P, under 307 of Code of 5 conf.5.09 section Criminal Procedure (hereinafter referred to as `the Code'), Jehangir Patne (numbered as accused no.4 in the charge sheet) was accorded pardon and was subsequently examined as an Approver PW2 at the trial. said 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 chargeWhile framing the said charge Mohd. Hasan Mohd. Anas Shaikh @ Hasan Batterywala numbered sheet. 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 POTA as amended by Repeal Act, gave hearing to said accused A1 to A3, A4 and A5 and their counsel of as as to the learned Public Prosecutor. After examining the Police Report comprised of statements well of witnesses, seizure memos and other material, the said Committee on 10th May 6 conf.5.09 2005 opined that the said A4 and A5 were not found connected with the incident of terrorism in the four bombcases and therefore there is no basis for their prosecution under POTA. However, A1 to A3 and blast 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 thereforeState of Maharashtra to proceed as per Clause (a) of sub-section (3) of Section 2 of Repeal Act qua directed 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 discharge them from the said case. The same were rejected by the Special Judge, POTA Court and to Mumbai dated 11th August 2005. A4 preferred Criminal Appeal No.783 of 2005 while A5 vide order preferred Writ Petition No.2363 of 2005 before this Court challenging the said order. Both the Criminal said proceedings were disposed of by this Court by order dated 24th October 2005. This Court held that the saidand A5 cannot be discharged directly merely on the basis of opinion of the Review Committee. The A4 Court
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directed the prosecution to file an application for withdrawal of the case against A4 and A5 under section 321 Code. of the 7 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 October, 2005. In response to the said application, on 24th November, 2005, Special Public 24th Prosecutor filed application P-319 for recalling PW8 for further examination-in-chief on account of new material being introduced during his cross- examination. 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 as directed by this application 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 the investigation officer, as ordered earlier by the said Court upon the earlier application. On excepting 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 8 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 due weightage to the observations and recommendations of the Central POTA Review Committee, giving he of opinion that there is prima facie case under POTA against A4 and is A5. 9. During the hearing of Exh.P-343 and Exh.D-54 and while passing 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 completed on the said date, POTA Court, for the reasons stated therein, disposed of the said application. order 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 was numbered as Criminal Appeal No. 359 of 2006. The same was clubbed along with 9 S.L.P. conf.5.09 the other matters of accused persons from Godhara Fire incident. It was later on disposed of by the Apex vide order dated 21st October 2008 with following observations in paragraph 51. "We therefore Court hold once the Review Committee on review under section 2(3) of the Repealing Act, expresses the opinion that that is no prima facie case for proceeding against the accused, in cases in which cognizance has been taken there by the Court, such cases shall be deemed to have been withdrawn. The only role of the Public Prosecutor in matter is to bring to the notice of the Court, the direction of the Review Committee. The Court the 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 case as if there had been no such the opinion." 11. Relying upon the said observation, A4 and A5 preferred Application Exh.D-116, for exonerating them the charges framed against them on the basis of report given on 10th May 2005 by Review Committee from of
POTA. That application was allowed. It is held that prosecution against said A4 and A5 is deemed to have withdrawn as per clause (a) of sub-section 3 of section 2 of Prevention of Terrorism (Repeal) Act, been 2004. the said A4 and A5 were ordered to be released if otherwise not required to be detained in Thus, connection other case, with further rider that the case against the said accused would be revived in the event with some 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,December 2008 the prosecution preferred above referred Criminal Appeal No.4 of 2009 on 22nd under 378(1) of the Code against the order dated 17th November 2008 discharging A4 and section A5. 13. In view of the deemed withdrawal of prosecution against A4 and A5 and their consequent release from the POTA Special Case No.1 of 2004, thereafter, proceeded against the remaining accused i.e. accused no.1 case, 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 as described in the table given hereinbelow and sentenced each of them for respective offence of offences for which they were found guilty, as stated in the third column against the respective offence mentioned in second of the said column table : 11 conf.5.09 Sr.No. Found guilty and Sentence awarded for the same Or the convicted for the count of offence of charge 1. 120B of IPC Death & fine Rs.5000/- I.d.R.I.for 2 yrs each. 2. 120B r/w 302 IPC Death & fine Rs.5000/- I.D.R.I.For 2 yrs each 3. 120B r/w & 307 IPC Life and fine Rs.5000/- I.d. R.I.For 5 yrs 4. 120B r/w sec .427 R.I.for 2 yrs IPC 5. 120B r/w sec,.3 (2)(a) R.I. For 2 yrs of POTA Act 6. Sec.3 (3) of POTA Imprisonment for life fine Rs.5000/- Act I.d.R.I. for 2 yrs 7. Offence punishable Imprisonment for life. u/s 4(b) of POTA Act 8. Sec.5 r.w. 9(B) of R.I. for two years Explosives Act 1884. 9. Sec.3 of Explosives Imprisonment for life Substances Act,1908
10. Sec.4 of Explosive R.I. For 20 yrs Substances Act. 11. Section 3 of R.I. For 5 yrs fine Rs.1000/-I.d. Prevention of R.I.for 6 months Damage to Public
Property Act, 1984 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 preferringAppeal No.880 of 2009. While Accused no.2 has challenged the judgment and order convicting Criminal 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 Investigating officer ACP Shri.Walishetty (PW 103) at the end of investigation of four by Chief 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 conf.5.09 Sr. Attempt or Bomb Date & Crime For Offences Effect of No. Explosion planted Time No.regd with under incident/ at in of police Stn. explosion incident upon FIR of 1. Seepz bus BEST 2ndDec, C.R.No. Indian Penal Nil as bomb Depot Bus 2002 400/2002 of Code,Explosives was defused MIDC no.MH01 at 21.40 MIDC police Substances before (Attempt) - 8765 of hrs station Act,Indian explosion Route API Tanaji Explosives Act. No.336 Jadhav PW63 2. Karani BEST 28thJuly, C.R.No. ..do..and also 2 persons lane, LBS Bus 2003 . 235/03 Prevention of killed, 60 junction No.MH-0 21.10 hrs Ghatkopar Damage to Public passengers Ghatkopar 1-H-8246 police Stn. Property Act. were injured Route no. Bus 2 auto 340 conductor rickshaw and 2 Dilip motor cycles Wankhede PW 54 shops and several damaged of public and private
property of value to the tune of Rs. 16.30 lacs
3. Zaveri Motor 25th C.R.No. Penal Code & 36persons Bazar near taxi August, 201/03 Indian Explosives killed, Mumbadevi No.MH-0 2003 at of L.T. Marg Act. 138 were temple 2-R-2022 12.40 hrs 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 Motor 25th C.R.No. Penal Code, 16 persons of India, Taxi August, 206/03 of Explosives killed, MH-02- 2003 at Colaba Substances Act, 46 injured, Mahal R-2007 13.05 police Explosives Act, Opp.Taj 20 Hotel hrs station P.C. Prevention of damaged, Camilo Reis Damage cars to PW 14. Public Property Act and POTA Act . 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 the A2 was arrested during the investigation of crime registered with Ghatkopar Police Station on 31st until 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 of DCB CID as shown in the table given below number : Sr. Original CR Number registered with Police DCB CID CR Nos. No. Station 1 C.R. No.400/02 of MIDC Police station CR 157 of 2003 2 C.R.No.235 of 2003 of Ghatkopar Police CR No.75 of 2003 Station
3 C.R.No.201 of 2003 of L.T.Marg Police CR No.91 of 2003 Station 4 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 of Accused No.2 Ashrat (hereinafter referred to as `A2'), A2 was apprehended by the team behaviour of Police Officers consisting PI Savde, PSI Talekar (PW-98), PSI Kandalgaonkar (PW-99), PSI Vankoti PSI Toradmal (PW-51) and the staff members on 31.8.2003 at about 15:30 hrs. A2 was (PW-97), thereafter interrogated by said Police Officers and during interrogation clue was received regarding extensively his involvement in planting of bomb in Ghatkopar BEST Bus. A2 was then formally arrested at about 20:20 hrs.PSI Todarmal (PW 51). Under arrest cum seizure memo (Exh. P-385) prepared in presence of by panchas Ingrulkar (PW-50) and Shri Vijay Kadam, the articles found during the personal search of A2 Mukund were seized. 19. The said articles seized during the search were i)motor driving licence in name of A2 Ashrat Ansari Ahmed Ansari. ii)identity card issued by Janata Party in the name of A2 as member of said Shafiq party. paper cuttings of Urdu News paper. iv)A white paper chit bearing some matter in Urdu language iii)Four 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 Land- line 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 that A2 along with his associates i.e. deceased accused Nasir, A1 and A3-wife of A1 had prepared clue 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. at Ghatkopar on 28.7.2003. He also made a statement revealing his willingness to show the place 340 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 which contained 30 gelatin sticks, 3 alarm clocks, and 8 detonators. The same were seized by PSI cot 17 conf.5.0 9 Vankoti (PW-97) in presence of panchas Sunil Bhatia (PW-53) and Sameer Sayar vide panchnama (Exh.P-393A). 21. After returning to the office of DCB CID Unit-XI along with said panchas and police A2 again informed Officers that he would show them the place where the bombs were prepared by him and the Police his associates. A2 thereafter led police officers and panchas towards the house of A1 Hanif and A3 Fehmida Salim Chawl, Room No. D-7, Chimat Pada, Marol, Andheri (East), Mumbai. A1 & A3 were in situate at the house along with their two daughters Farheen and Sakira. A2 Ashrat led Police Officers and said panchas loft of the room where bombs were prepared by him and his associates. Police Officers towards 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 Passportii) Passport in the name of A1 bearing No. P-468148, dated 11.9.93 issued by Jeddah Passport Office. 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 issued by Mumbai Passport 18 6.8.97 conf.5.09 Office. v) Passport in the name of Irfan Hanif Mohd. Sayyed (son of A-1 and A-3) bearing No. A3527645, 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,Shafiq Ansari, Shiraj Electricals on the overleaf of the card. viii) Visiting card of Aziz in the name Ashrat 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) aluminum clips kept in one cloth bag of Khaki colour. ii) soldering machine along with plug and wire. 125 iii) 9 alarm clocks in various sizes of Fengseng Co. iv) one clipper of Super Eagle Co. (12 m.m.) v) One polyester Yarn role of white colour. vi) One solder wire role. vii) One Polyester Yarn fitting machine Filament (Super make.). Viii) 16 crackers of red eagle 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 under custody memo. The arrested accused persons along with the seized articles were taken to the of 2003 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 Maheshwari Hotel and pointed out Room No. 14 in Salim Chawl which was found locked. A1 near Hanif the lock with the key in his possession and entered the room. He was followed by police officers opened and panchas. A1 took out yellow coloured gunny bag which was kept below the cot and 58 gelatin sticks were 20 conf.5.0 9 found in the bag and the said sticks came to be seized vide panchnama (Exh.P395A) 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 getting discharged from the hospital he was produced before the Special Court on 2-9-2003. He was after later on remanded to Police custody till 15-9-2003. On 1-9-2003 A2 and A3 were already remanded to the police by special court. Since it was revealed from the school record of Accused Farheen (daughter of Acustody 1nd A-3) that she was minor at the time of commission of offence, she was produced before the a Juvenile at Court 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 were involved in the offence of bomb blasts. A2 on 4-9-2003 expressed his willingness to Farheen give
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confession. The same was apprised by IO Shri Walishetty to Joint C. P. (Crime) who directed DCP Shri Lokhande (PW-88) of Zone-X to record the confession of Accused No. 2 Vinod 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 it could be used against him. A2 was given 24 hours time for reconsideration of his decision to the same make the confession and in the meantime A2 was lodged in the lock-up of Bandra-Kurla Complex Police Station. produced on the next day i. e. on 12-9-2003 before PW-88 and he was again apprised by PW-88 A2 was thatwas not bound to make the confession and if he makes the confession, the same would be used as he 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 - xh.501A. A 2 was then produced before Chief Metropolitan Magistrate on the same day i. e. on 12-9E 2003his separate statement confirming that his confession was recorded by C. M. M. A 2 in the said and 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. P284 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. respectively were collected by IO. Accused Nasir had also purchased another SIM card of P-278 Airtel No. 9892077831 from Karishma Electronics at Marol. Exh. P-275 is challan of the said bearing 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 his associates was likely to come near Ruparel College in a Maruti-800 car with Arms, with Ammunitions, on 12th March 2003. PSI Sachin Kadam (PW-1), API Ahir, PSI Sabnis along with other and Explosives 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 same and persons in the car started firing from the revolvers towards the Police. PW-1 Sachin Kadam the 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 in the said Maruti-800 car bearing No.BLMfound 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 Maruti car along with explosives therein was seized by the said Police Station at the time of said preparing
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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 DCP Ms. Archana Tyagi (PW-90) was directed to record confession of of A1 and A3. 34. On 22nd September 2003, PW-88 complied with the formalities for recording confession of A1 and on the day recorded first part of his confession (Exhibit-P-501). Similarly, after following necessary same procedureSeptember 2003, PW 88 recorded the confession of said accused. Thereafter, on 25th on 24th Septemberwas produced before the Chief Metropolitan Magistrate and his statement (Exhibit-P-623) 2003, A1 was recorded by the Chief Metropolitan Magistrate. Thereafter, confession of A1 was forwarded to POTA Court September 2003 vide covering letter Exhibit-506on 26th 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 statement regarding the confession was recorded by the CMM and along with the same her confession her 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 criminal conspiracy hatched Joint Commissioner of Police (Crime) Shri Satyapal Singh appointed of the ACP Suresh S. Walishetty (PW-103) as Chief Investigating Officer to do the investigation in connection Shri with four offences of bomb blasts and the officers of the concerned Police Stations were directed to all the assistWalishetty in the investigation. A1 to A3 were lodged in Mumbai Central Shri 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 PW52. 38. PW-52 held another identification parade at Mumbai Central Prison on 11th October 2003 for A1 and A2connection with Ghatkopar incident. Mr.Dilip Wankhede (Conductor of the bus) (PW-54) identified A2 in at said parade as being the person who had boarded the BEST bus route no.340 at Andheri bus stop the alongone Burkha Clad Lady with her face uncovered to whom he had issued ticket for Asalpha bus stop with and person who had taken the seat along with the said lady at the rear side of the bus. Further the identification on the same day was held at Byculla District Prison (where she was shifted) by the parade for A3 same witness. At the said parade PW-54 identified A3 as being the Burkha Clad woman with face uncovered who boarded the BEST bus of route no.340 at Andheri stop along with the person who had taken BEST had bus for Asalpha stop. Exhibit-P-391 is memorandum prepared of the said parade held at Arthur Road ticket and Byculla Prison.
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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 house of A2 and the rickshaw was wrongly parked by A1 in front of the shop of PW-19 and on that the count was a quarrel between A1 and the said PW-19. PW-19, the owner of a garment factory at Juhu there Lane, Nagar, Andheri (W), Mumbai near the residence of A2 and had seen A1 many times coming to Samata the of A2, identified A2 in the said parade as being the person residing adjacent to his shop since long house and friend of was 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 taxi when parked opposite Amber Oscar Cinema Hall at Andheri. He had engaged the said taxi the said for Rs.600/- for going to the places such as Haji Ali, Hanging Garden, Aquarium, Gateway of India and Rani and the said taxi was brought by PW 15 with the said accused at Azad Galli, Andheri (W0. Baug Thereafter, wife Fehmida and their two daughters had travelled in the said taxi from 28 Nasir A-1, conf.5.09 Azad Galli to Colaba for visiting places and returned and A1, his wife Fehmida and their two daughtersin the said taxi of PW-15 Shivnarayan Pandey again on 25-8-2003 from Azad Galli, Andheri travelled (West) to Colaba. A1 had kept one airbag in the dickey of the taxi and asked the taxi driver to take the taxi towardsBunder Road at Colaba and to park the said taxi in front of Hotel Taj in pay & park site. The Arthur same had instructed the witness to stay in the taxi till the arrival of A1 and his family members. PWaccused 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. PW-20 Ramchandra Shitalprasad Gupta has also identified A1. He claimed to have seen A1 along with his and two daughters travelled in his friend's ( Shivnarayan Pandey) taxi. PW 20 however did not wife identify above parade. Exh.-P-323 is the memorandum of the above TIP which was held on 6-10-2003 A2 in the 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 woman travelling along with her husband and two daughters in his taxi on 25th August 2003. A3, as the He mentioned about parking of that taxi at Gate Way of India in Pay and Park site in front of Taj has 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 held identification parade of A1 & A2 at Mumbai Central Prison for witness Manoj Patil (PW2002 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 had later on occupied a seat on the rear side of the said bus and thereafter A1 having left the who stop. 44. Shri Dilip Masram (PW-62), conductor of the same bus Route No. 312, also identified A2 as a person whoa quarrel with another passenger at Seepz Bus depot and he pacified the person who 30 conf.5.09 had
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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 TI parade. The memorandum of the said TIP prepared by PW-59 is Exh.Psaid 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 at STD/PCO Booth of Kantilal Jain situated at 5, Vitthal Wadi, Zaveri Bazar, Mumbai- 400 working 002 identified A2 as a person, who, on 25-8-2003, at about 12.10 hrs., made telephone call from his PCO to one saying that he had kept the goods in the taxi near Mumbadevi temple and work would be Nasir done. Similarly, witness Harish (PW-30), who was present near Mumbadevi Temple area on 25-8-2003 for hiring returning to his home at C.P. Tank claimed to have seen taxi No. MH-01 H-2022 halted at taxi for Zaveri He claims that he tried to board the said taxi but he was told that taxi was not empty and directed Bazar. him ahead and shortly thereafter there was an explosion in the same taxi. PW-30 had identified A2 as to go being the same person who had shouted at him and asked him to go away. Kunjbihari Ramprasad Pandey (PW29) Kutty Manappa Shetty (PW-33) hawkers doing business at Dhanji Street Naka has identified A2 at and the parade as a person who had a 31 conf.5.09 said 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 uarrel with one motor-cyclist and the quarrel was separated by the above hawkers. The Memorandum of q the TI parade prepared by PW-41 being Exh. P-192. said ABOUT APPROVE R 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 and many persons were injured in the said blasts. He started repenting for his misdeeds. He then went lives 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 persons including woman and children of both religions (Hindu and Muslim) were killed and it act, the 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 BandraBranch had been to his house for making inquiries. Hence, he along with his elder brother went to Crime 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, which was later on extended upto 30-10-2003. 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 ZoneVII.took proceeding for recording the confession, Part-I (Exh.P-264). PW-12 took further proceedings on He the day when accused No.4 was produced i.e. on 23-10-2003. After following the due procedure, next confession recorded - Part-II (Exh. P-264A). Accused No.4 on the same day was produced before C.M.M. of A4 was and statement was recorded by C.M.M. confirming the contents of his confession. The CMM then his 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
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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 1-122003. 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 KolhapurL.B.S. Road, Kurla (W), Mumbai and from said shop he produced 3 gelatin sticks and RDX Garage, powder 750 gms. kept in one cardboard box. The said articles came to be seized in presence of panchas weighing vide panchanama (Exh. P297A) 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 In consequence of above information, 2 detonators 34 of India. 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. P291A). 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)turn respectively directed DCP Shri Amitabh Gupta (PW-89) and DCP Shri Ankush Shinde (PWwho in 91)record the confession of respective accused persons. Accordingly DCP PW-89 recorded Part-I (Exh. Pto 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 atterywala was produced before the Chief Metropolitan Magistrate. Similarly DCP PW-91 recorded Part-I B of confessional statement (Exh. P-532) of Accused No. 6 Ladduwala on 25-11-2003 and part-II of the 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 co-accused persons in the commission of offence of bomb blasts. 35 and other 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 withhelp of his wife A3, deceased terrorist Nasir Ahmed Ansari, A2, original A5 and A6 committed the terrorist acts in Mumbai city by exploding the bombs. In pursuance of the criminal conspiracy hatched by A1 to A6 wanted accused persons, i) A2 planted timer bomb in BEST bus bearing No. MH-01- H-8765 at Seepz and on 2-12-2002 and ii) A2 with the help of A3 planted bomb in BEST bus of Route No. 340 on 28-72003. 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 under POTA
for
prosecution
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53. After receiving reports of Forensic Science Laboratory and reports of Joint Controller of Explosivesthe examination of seized material; and after getting postmortem reports/Provisional Cause of regarding 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 Chief IO PW-103 submitted charge sheet on 5th February, 2004 against A1 to 37 to 6, conf.5.09 A6 (including PW-2) as stated earlier for commission of offences under Section 120-B, r/w Sections 302, 307, 324 IPC, u/s 3, 4, 5 of Explosive Substances Act, 1908, u/s 5 and 9(B) of India Explosives Act, 1884, 326, u/s4, 5 and 20 of Prevention of Terrorist Act, 2002, along with absconding accused Shafakat, Abid, 3, Khalid, Jahangir, Bilal, Samiulla and Rehman named in the charge sheet. Upon filing of the said Maqsud, chargecognizance was taken by the Special Court and above stated POTA Special Case No.1/2004 sheet, was registered. As stated earlier, charge sheeted accused No.4 being accorded pardon on the basis of prosecution application, he was 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 under eight different heads i.e. from head Firstly to Eighthly for offences under Section i) of offences 120-B r/w 3, 4, 5(1) & 20 of POTA Act so also r/w. Section 302, 307, 427 of IPC and Section 3 of of IPC, Explosive Act, Section 9(B) of the Explosive Act, 1884 and Section 3 of Damage to Public Property Act. Substances ii) 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 3(2) IPC S. 3(2), 3(3) of POTA, 2002 and Section 4 of Damage to 38 and 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, of Explosive Substances Act and r/w. S. 3 of Damage to Public Property and U/s. 3 & 4 of POTA, 6 2002 accused Nos.1 to 3 only) vii) 3 of Explosive Substances Act, 1908 (against accused No.3 only) viii) (against 3f Explosive Substances Act (against accused No.5 o only) 56. All the accused Nos. 1 to 5 pleaded not guilty to the charge framed against them and claimed to be tried.prosecution at the trial adduced oral evidence of 103 witnesses. In addition to the oral testimonies of The the witnesses the prosecution also relied upon the several documents which were proved through the said 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 injured persons vi) inquest panchnamas. vii) common panchanamas regarding seizure of blood the stained of injured and deceased. viii) map of place of offence of DCB CID Cr No. 157 of 2002, CR. No. 75 clothes of 2003, CR No. 91 of 2003 and CR No. 86 of 2003. ix) panchanama regarding destroying of RDX.
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58. As aforesaid, prosecution at the trial examined in all 103 witnesses, i.e. witnesses referred herein above also 28 more witnesses i. e. PW-23, PW-25, PW-34, PW-36 and PW-64 to PW-87 on the point that and so 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 examined on the point of purchase of SIM cards of Airtel bearing No. 9892451164 Dubey were 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 qua submissions advanced before us being dealt in the further part of the judgment the same is evidence not unnecessarily narrated for the sake of brevity. 59. The accused in defence have adduced defence evidence i.e. A1 has examined himself as DW-4 and has examined 2 witnesses i.e. (DW-5) Ex-Commissioner of Police, Mumbai, Shri Ranjitsingh Sharma also and (DW-6).Ex-Home Minister of the State Shri Chagan Bhujbal. Similarly A5 has examined himself as DW-1 examined DW-2 his son Shaikh Mohd. Ismail. A5 has examined ACP Sadashiv Patil as DW-3 and has to point out that statement of PW-8 Ajmeri Mohd. Ali Shaikh was recorded by him in connection with bomb incident in Mumbai dtd. 11-7-2006. Defence has also relied upon as many as 124 blast documents/Exhibits. FINDINGS OF THE TRIAL COUR T 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 the house of A1 at Mumbai for chalking out detail plan for doing bomb blasts at crowded meetings in 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 31-82003. iv) A2 and A3 were found in unauthorized possession of hazardous explosive substances in their house R. No. Salim Chawl, Chimatpada on 1-9-2003 at hrs. v) on 1-9-2003 at 7.50 hrs. A1 was found D-7 in unauthorised possession of hazardous explosive substances in a room occupied by him bearing R. No. 14 Salim Chawl, Chimatpada. 42 conf.5.09
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vi) A1 to A-3 and deceased Nasir in pursuance of the above criminal conspiracy had planted timer bomb the rear seat in BEST Bus of route No. 312 (336) bearing No. MH-01 H-8765 near Seepz below 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 EST bus of route No. 340 bearing No. MH-01 H 8246 which was exploded at about 21.10 hrs. B on 28-7-2003 at Karani Lane Junction, Ghatkopar (W), Mumbai causing the death of two persons and injury to passengers and also causing damage to public and private property worth Rs. 16.30 lacs. 60 viii) A1 to A3 and deceased Nasir in pursuance of the above criminal conspiracy, planted timer bomb in a otor taxi bearing No. MH-02-R-2022 which was kept waiting at the junction of Dhanji Street, Yusuf m 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 to 138 persons and also caused damage to public and private properties worth Rs. 95 lacs. and injury 43 conf.5.0 9 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 00525-8-2003 and the said bomb was exploded at 13.05 hours killing 16 persons and causing injuries to on 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 to A3 for commission of the offences as arrived by the trial Court and sentence 44 of A1 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 furtherthat considering the nature of offences committed and the purpose behind committing them i.e. urged the conspiracy hatched to commit terrorist act and commission of terrorist act as established by the prosecution fault can be found even with the sentence awarded. She submits that sentence of death evidence no awarded
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by trial Court deserves to be confirmed and no interference is warranted regarding the other sentence awarded A3. She also urged that in the event of agreement with her submission of the evidence of to A1 to particular wrongly discarded by the trial Court, then, the concerned accused whose involvement/guilt witness was 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 for supporting her said submissions. For the sake of brevity, the relevant submissions case 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 and setting aside the opinion/direction given by Central Review Committee and remanding for quashing 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 order and sending the matter back to the trial court for deciding the same in accordance with the law. said We elaborate this submission a little shall later. 63. Mr. Pasbola learned counsel for A3 opened the defence arguments. At the outset, he submitted that none accused have disputed the factum of bomb explosions and/or people having died or being injured and of the 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, conspiracy ought to be before December, 2002. Even the evidence about the same is too sketchy the said 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 the incident of explosion had occurred on 28th July, 2003 while the remaining two incidents while 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 tried together at one trial. The trial 47 be conf.5.09 conducted for clubbing four incidents together, is illegal. He urged that such trial was and in fact caused prejudice to A3. Hence, the trial against A3 is vitiated. 66. He further urged that the charge framed at the trial is blissfully vague. It is urged that the charge for every offence as required under the law is not framed against A3. The same has caused prejudice to distinct 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
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charge- sheet. 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 - eing statements of accused recorded while in police custody before application of POTA provisions. b 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 claims the arrest on 30th August, 2003. 69. He further submits that the defence was denied opportunity to rebut the prosecution evidence. In that, police officer (Gulabrao Pole) who had allegedly recorded confession of Accused in another case was though 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 opposed to Section 32(5) of POTA. Further, 49 was 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 being opposed to provisions of POTA. alia, 71. He further submits that the incriminating portion in the alleged confessions were not put to the Accused -o enable the Accused to offer explanation. Even for that reason, the same cannot be looked t into. 72. He further urged that in the present case all the C.A. Reports, without examining any of the Chemical were admitted in evidence under Section 293 of Cr.P.C. The provisions of Section 293 only Analyser 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 an opportunity to explain the incriminating material from the same used against her has resulted giving her 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 alias Afsan Guru, 2005 SCC (Cri) 1715 i.e. the defence ought to have been permitted to examine Sandhu the pertaining to grant of sanction, which document being contemporaneous record alone can resolve the file issue of non-application of mind. He urged that in present case such an inspection of the file pertaining to according as well as request to examine the Sanctioning Authority was denied to the defence. Thus, of sanction 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 came Act 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 question- answer 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 thereon. It is submitted that this anamoly has crept in the proceedings as the major evidence given 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 were caused by means of RDX, while gelatin was used in other two incidents. It is also case Bazar) 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 was urged that no investigation in this regard creates a reasonable doubt that the gelatin "Vardha". It allegedly from the house of Accused was a planted article. This has 52 recovered 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 notes and not by refreshing his memory by perusing case diary/crime report. This has caused prepared serious to the Accused. His entire evidence is liable to be discarded as the same indicates that he himself prejudice has carried out any investigation. It was urged that as per the provisions of POTA all the investigations not 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 be most relevant while considering the order of acquittal / release passed in favour of co-accused A4 would 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 adverse inference against the prosecution. In the result, the benefit of doubt should be given to drawing of 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 aspects pertaining to the evidence of PW2 Approver, making himself as an approver by the the prosecution, grant of pardon, non recording of his statement, appointment of the Special Judge after POTA was repealed, accorded for prosecution of offences under Explosive Act and/or under Explosive Substances sanctions Act for submitting that the evidence adduced has not established guilt of A3 and/or some of the etc. 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 of her confession, uncorroborated evidence of PW2, confession of the co-accused and unacceptable shape 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 bombit is difficult to perceive that such a person will involve himself / herself in a quarrel in the then manner It was urged that this theory propounded by the prosecution is against the grain of probability. alleged. That is a circumstance justifying the submission that the said witnesses are unnatural witnesses and have itself 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 of A1. case 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) to have occurred, the prosecution has utterly failed to establish that the dead body of the person was is said of none other than the co-conspirator Nasir. The prosecution has rested the matter mainly upon the sole evidence 1 who had lodged the said of PW complaint. 85. It was further urged in the same context that photograph of the said dead person who is said to be Nasir been shown to any of the witnesses in the present case to establish that the said dead person has not was accompanying A1 as claimed by them. It was urged that merely showing some cards of Bank containing of Nasir would not be sufficient to establish that the person killed in the encounter was photograph 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 PW1producing the inquest panchanama in the said case. Even that Panchnama has not been 56 and 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 the mobiles on the person of the said deceased, still no number engrossed upon the said sim cards seized from has surfaced in the evidence for linking the said sim cards which is said to have allegedly purchased by Nasir mobile shop. It was urged that merely sim cards purchased from the shop having a particular from number be sufficient to come to the conclusion that the same were sim cards which were found on would not 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 the encountered person, bearing the names of certain persons. It was urged that none of the said from persons have been examined to establish the link of the said material with the said persons or for establishing identity as being the same person who was encountered. In the same context it was urged that the of Nasir said material reveals different names on driving licence or the name of the owner of vehicle as Umesh Suresh
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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 that the same is the case regarding election identity card which stands in the name of Abdul urged Sayyad Ali with photograph of deceased (allegedly Nasir) with address of Hyderabad. It was urged that Rahman all defects have been clearly brought out in the cross examination recorded on page the no.1136. 89. It was further urged that panchanama regarding gelatin stick being found in the house of said encountered not been produced / proved in the present case for establishing the link of the said accused has person encountered. 90. It was urged that the evidence of PW11 Special Executive Officer reveals that photograph of Nasir i.e. from the person of deceased was used for holding photo test identification parade. It was urged that taken the evidence pertaining to the said parade reveals that stock police panch Narayan Shetty was used as a panch for the said parade. It was urged that for establishing the said fact, application was made on behalf witness of defence, the same was rejected by the Court. That has prejudiced A1 and co-accused in establishing the 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 used for the said parade has not been produced. The entire evidence regarding the said parade is of dummies doubtful and so also the alleged identification of the said Nasir allegedly made by the witnesses is highly deserving no credence. doubtful 92. Learned counsel also made exhaustive submissions regarding the arrest of A1 and so also the arrest of A2 about the sealing aspect and the evidence of PW103 in relation to making PW2 approver, confession and 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 of probability. Rather he has been made a scapegoat and his guilt is not established by grain prosecution he deserves to be acquitted or at least deserves to be given benefit of doubt. evidence and 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 submissions pertaining to the incident or the circumstances showing involvement of the A2 for limited 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 was conducted i.e. by allowing putting leading questions and / or objection raised during the course the trial of being not decided properly. It will not be out of place to mention that during the oral arguments on trial behalf learned counsel did not point out as to which objection raised at the instance of A2 during the of A2, 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 A3 having proceeded on the relevant day towards the junction of Dhanji 60 and conf.5.09
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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 case/charge regarding the Gateway incident is no the different. 96. Learned counsel also made similar submissions as that of counsel for A1 regarding the concerned witness identity of A2 with regard to the incident in question. All the prosecution witness who about the 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 regardingof offences allegedly committed in four incidents at one trial for contending that the same being clubbing in contravention of the provisions of law. It was urged that there being a huge gap between first incident on 2nd December, 2002 and second incident in the month of July 2003 and remaining in the occurred 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 occurred in the course of one transaction. 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 POTArecording the confession, evidence of approver, making himself approver about recovery evidence while etc. same will be dealt with while considering rival submissions regarding the relevant topic at The appropriate the sake of stage for 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 3), addressed us on the quantum of sentence on the supposition that the finding of guilt recorded against to 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 carefullyentire record with their assistance in order to ascertain merits from the same. However, in order perused 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.2539/200 8 & 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 datedNovember, 2008 by POTA Special Court, Mumbai, urged that the same has forced the prosecution 17th 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 August,.2009, the prayer for interim relief of stay of implementation 63 on 11th conf.5.09
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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 dated 17th November, 2008 passed by the Special POTA Court for Mumbai in Special POTA the order Case of 2004 under Section 378(3) of Code read with Rule 19 of Chapter XXVI of the Appellate Side No.1 Rules quashing and setting aside the said order and directing said POTA Court to decide the entire case on and for 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 from the said POTA case - the said accused filed MA 42 and 44 of 2005 respectively before the A5 Special POTA Court Mumbai. These applications, however, were rejected by the said Court vide order Judge, 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 prosecution, vide order dated 24th October, 2005, to file an application under Section 321 of the Code, the 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 is prima facie case under POTA against A4 and A5. She urged that similar stand was taken by him in there the to the application preferred by A4 and A5 before POTA Court. She urged that by order dated reply 23.1.2006, Court, having disposed the said applications, amongst other observing that case for the POTA withdrawal under Section 321 of the Code was not made out, - it was unnecessary for the prosecution to carry the matter on the assumption that - the Special Judge intended to proceed against A4 and A5 as well. She further urged that thus prosecution had duly complied the direction given by this Court by preferring application Exh.P343. 104. The learned APP urged that however, A 5 had filed SLP No. 187 of 2006 against the decision of this dated 24 th October, 2005 before the Apex Court. That SLP was converted into Criminal Appeal Court No. of 2006 and heard along with other matters of accused persons involved in fire incident at 359 Godhra, All the said proceeding were disposed of by the Apex Court vide order dated 21st October, 2008 Gujarat. i.e. the decision in the case of Mahmadhusen Abdulrahim Kalota Shaikh(2) .vs. Union of India and by others in (2009) 1 Supreme Court Cases (Cri) 620. On the basis of 65 reported 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 them from charges framed on the basis of the report/direction dated of May, 2005 given by Review 10th Committee. 105. The learned APP by relying on the observations made in paragraph no.51 of the decision in the case of A. K. Shaikh (supra) and particularly the portion from the same to the effect "but we make it clear that M. if opinion of the Review Committee is challenged by any aggrieved party in writ proceedings and is the 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 being perverse and manifestly wrong, at the instance of the State, then, as a corollary, the is overturned order by the trial Court on the application of A 4 and 5 for discharge will have to be set-aside. It is passed 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 serious offences - when it is demonstrated that the Review Committee has committed jurisdictional such error.
106. The learned APP thereafter by drawing attention to the provisions of Section 60 (4) of the POTA Act that the said provision considered in the light of the other provisions of the said section makes urged it abundantly clear that review contemplated is expected to ascertain whether prima facie case for proceeding accused for commission of offence under the POTA Act and to issue direction in accordance against the with the same. She further urged that the said provision does not empower the Review Committee to pronounce on continuance of trial against the accused of offences other than POTA offences. She urged that thus the 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 Committeewithdrawal of prosecution of other offences under other 67 to direct 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 A4 was also charged for commission of offence under Section 3 of Explosive Substances Act, urged that for having caused to unauthorisedly store 750 grams of RDX, discovered at his instance on 10.11.2003 from Hassan Battery Shop near Kolhapur Garage near Kurla, Mumbai. Similarly 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 part of paragraph No.17 of the same to the the relevant 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 blast incidents that last occurred in August 2003. These two accused have not been connected bomb 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 prima facie that these two accused were party to any such conspiracy. Report of the expert/ analyst even that and detonators allegedly recovered from these two accused were RDX explosive substance was not placed before us. Review Committee, taking a prima facie view of the material does not find these two accused connected with terrorist acts. Accordingly, the Committee on record, finds there is no basis for their prosecution under POTA." (emphasis that supplied) 108. The learned APP, thereafter, by drawing attention to the 1st highlighted portion from the aforesaid urged that the said observation made by the Review Committee clearly reveals that the paragraph 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 causing explosions for which the challan was submitted by the prosecution had occurred prior and/or of to
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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 Act for which they were charged at the trial. Learned APP thereafter by pointing out Substance observations Court in the case of M. A. K. Shaikh (supra) to the effect "89. ................where there is of the Apex 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 shall be deemed withdrawn. [See POTA (Repeal), 2004, Sections 2(3) (a) and (b).] Where there is case 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 couldhave formed such prima facie not opinion. 110. The learned APP by drawing attention to the decision of the Apex Court in the case of Somnath Thapa in 1996 (4) SCC 659 and discussion in para No.30 thereof, urged that the broad 70 reported conf.5.09 contours for determination of a prima facie case against the accused while considering his discharge are well established. By applying that principle prescribed by the Apex Court, the application Review Committee could not have concluded or arrived at prima facie opinion that there was no case for proceeding and A5 for offences under POTA particularly at least for offence under Section 4(b) of against A4 POTA. 111. The learned APP further urged that the entire material contained in the charge sheet and the confessions before the Review Committee and the material at page no. 2566 was the C.A. report pertaining were placed to samples of the contraband articles seized at the behest of A4 and A5. It was urged that the said the report that the articles were explosive substance RDX etc. Learned APP contended that, therefore, reveals 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 is also indicative of existence of the necessary material for the same. The said 71 A5, 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 to the said accused are not legally sustainable and liable to be quashed and set aside. regard 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 directionsthe Review Committee constituted under POTA, still the same would have an effect at the most given by for withdrawal of the prosecution under POTA. It was urged that as pointed out by her, A4 and A5 having been charged for commission of offence under Explosive Substance Act and so also the offence under also 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 offences triable under other enactments, other than POTA. It was urged that 72 other conf.5.09 impugned order is manifestly illegal as no cogent and tangible reasons are ascribed for discharging/releasing for offence under Explosive Substance the said accused even Act.
113. It was urged that in view of Section 33 of POTA, it was incumbent upon the POTA Court to transfer the to the competent Court empowered to consider whether the case for proceeding against the said accused case 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 be allowed and the parties (A4 and A5) be relegated before the trial Court from the stage of passing State 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. that considering the power given to the Review Committee constituted under POTA as It was urged modifiedsaid Section 2(3) of the Repealing Act, 73 by the 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 primacase for proceeding for offence under POTA against the concerned accused. It was urged that no facie 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 be open for the prosecution to assail that opinion arrived by committee. Hence, writ petition as not 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 Court of Delhi in Writ Petition (Criminal) No.1712/2005 decided on 27.5.2009 in the case of State High 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 of M. A. K. Shaikh (supra) the High Court of Delhi has ruled that the decision of Review case Committee Act of 2004 was not only binding on the concerned Government and Investigating Officer after Repeal but on the Public Prosecutor and on the Court in cases where cognizance had been taken by such also court. 117. The reference was also made to the decision delivered by High Court of Gujarat on 12.2.2009 in Special Application No.504/2008 Sardarji Maganji Waghela vs. Union of India. It was argued that Criminal 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 standi to challenge the directions of the Review Committee. Learned counsel alternatively urged that locus the direction given by the Review Committee is in the nature of an administrative fiat, the scope of judicial thereof would be very much narrower. He urged that even examining the matter from the said review angle, any circumstance has been pointed by learned Special Public Prosecutor warranting an hardly interference
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with the said direction given by review committee after duly considering the record and after hearing both the It was urged that the directions given by the Review Committee amongst other reveals that sides. due opportunity was given to the State/Prosecution to convince the Committee on the basis of the record placed the committee, of there being a case for continuing prosecution for offences under POTA against before the respondents. The State/Prosecution having failed in said process and order passed and/or directions given by committee are based on cogent reasons, no interference is warranted. That order can neither be termed the as arbitrary or perverse. It was urged that hence there are no merit in the petition preferred and the same is liabledismissed. to be 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 is directly on the (supra) 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 to commit the bomb blasts in Mumbai. It was urged that the same is clear from the in Dubai observations Review Committee in the report. It was urged that in spite of the report being received on made by the 10th 2005, no prompt steps as warranted were taken thereon by the prosecution. Even May, Application No.42-44/2005 preferred respectively by A4 and A5 were objected by the prosecution. Furthermore, in spite direction given by this Court while disposing appeal and writ petition preferred by the respondents, of the the was not promptly complied. Ultimately the respondents A4 and A5 were forced to make an same application Court calling upon Special Public Prosecutor to state whether any steps were being taken to the POTA 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 same as the relevant provisions contained in Section 2 (3) (a) of the Repeal Act envisages that with the in event Review Committee is of the opinion that there is no prima facie case for proceeding against the accused, cases in which the cognizance has been taken by the Court, shall be deemed to have been then, the withdrawn. that the said provision contemplates automatic withdrawal of the prosecution. It was urged It was urged that said provision, by itself, does not contemplate withdrawal of the prosecution only for offences the under It was urged that offences under POTA being only aggravated form of offences under POTA. other enactments committed with specific intention, even the case for commission of offence under other enactment continued after review committee opines that there is no case for proceeding against the cannot be respondent and nos.A4 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 in Mumbai. Further, there exists no material in the charge sheet to prima facie establish the blasts involvement in conspiracy to commit such blasts in Mumbai hatched in Dubai. It was thus urged that no of A 4 and 5 faultbe found with either direction given by POTA Review Committee or the order passed by the POTA can Court November, 2008, which, was following the pronouncement in the case of M. A. K. Shaikh on 18th (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 of absconding accused, the matters pertaining to accused Nos. 4 and 5 could be 79 trial 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 independent evidence against accused Nos. 4 and 5. In the circumstances, we told the counsel appearing for the respective in the first place, the cases pertaining to accused Nos. 1 to 3 will be fully heard, and thereafter, parties that, the pertaining to accused Nos. 4 and 5 will be taken up for hearing. Accordingly, after hearing all cases 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 may straightaway advert to Section 60 of POTA as also Section 2 of the Repeal Act. The same read 5, we as under:"Section 60. Review Committees---- (1) The Central Government and each State government shall, whenever constitute one or more Review Committees for the purposes of this necessary, 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 or has been, a Judge of a High Court, who shall be appointed by the Central Government, or as who is, the may be, the State Government, so however, that the 80 case 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 withconcurrence of the Chief Justice of the concerned High the 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 investigating the offence; officer 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 eview Committee constituted by the Central Government and a Review Committee constituted by the R State Government, under sub-section (1), any direction issued by the Review Committee constituted by the Central Government shall prevail.]
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(7) Where any Review Committee constituted under sub- section (1) is of opinion that there is no prima facie for proceeding against the accused and issues directions under sub-section (4), then, the proceeding case 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, forfeiture or punishment as aforesaid, and, any such investigation, legal proceeding or remedy may penalty, 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 offence under the principal Act after the expiry of the period of one year from the commencement of an this (3) Notwithstanding the repeal of section 60 of the principal Act, the Review Committee constituted Act." by Central Government under sub-section (1) of that section has been made, shall review all cases the registered principal Act as to whether there is a prima facie case for proceeding against the accused thereunder under the and such review shall be completed within a period of one year from the commencement of this Act and the Review Committee is of the opinion that there is no prima facie case for proceeding against where 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 sub- section (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 SectionPOTA. It envisages that the Central Government and each State Government were obliged to 60 of constitute Review Committees for examining cases under this Act. The constitution of such Committee one or more is specified by this provision in sub-sections (2) and (3). The power to be exercised by the Committee also flows from 83 conf.5.09 Section 60(4). This provision is without prejudice to other provisions of the POTA Act. This provision that application can be made by aggrieved person to the Review Committee constituted envisages under 60(1) calling upon the Committee to review whether there is a prima facie case for proceeding Section 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 Government and the police officer investigating the offence. On the other hand, direction issued by State the Committee constituted by the State Government shall be binding only on the State Government and the police investigating the offence. We may have to elaborate the purport of binding effect to examine officer 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 by the Central Government in exercise of power under Section 60(4) shall prevail over constituted 84 conf.5.0 9 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 sub-section (4), then, the proceeding pending against the accused shall be deemed to have been under 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 Review Committee on such review was binding on the Government concerned and the by the Investigating not the Public Prosecutor or the Court under Section 321 of the Officer, but 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 sub- section (2) thereof opens with non-obstante clause. It envisages that notwithstanding anything contained in sub-section (2) or in any other the time being in force, no Court shall take cognizance of an offence under the Principal Act after law for 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 by the Central Government under sub- section (1) of that section, whether or not an constituted application section (4) of that section has been made, shall review all cases registered under the principal under subAct 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
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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 the repealing Act. The Court will not examine the correctness or propriety of the opinion nor 2(3) of exercise any supervisory jurisdiction in regard to such an opinion of the Review Committee. At the same time, the Court made it clear that if the opinion of the Review Committee is challenged by any aggrieved party Apex in proceedings and is set aside, the Court where the proceedings were pending, will continue with the case writ 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 by the Central Government to exercise powers of the civil Court in respect of discovery constituted 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 no hesitation in taking the view that, although the direction issued by the Review Committee cannot have be strictly construed as a judicial decision, the mere fact that the Review Committee is entrusted with powers of Civil Court under the Code of Civil Procedure, 1908, in respect of discovery and production of the any document and requisitioning any public record or copy thereof from any Court or office by virtue of Section the repeal Act, coupled with the fact that the direction issued by the Committee is made binding 2(4) of not on the concerned Government but also the police officer investigating the offence and that, by only legal the proceeding pending against the accused is to be treated as deemed to have been withdrawn fiction, 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 whethera prima facie case for proceeding against the accused thereunder. For that, it could exercise powers of there is 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,the Court which has taken cognizance, even those cases are deemed to have been withdrawn where 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
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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. Section 2(3) of the Repeal 89 Although conf.5.09 Act empowers the Review Committee to review all cases registered under the principal Act and further for the consequences if the Review Committee opines that there is no prima facie case provides for proceeding against the accused - it is limited to case deemed to have been withdrawn. No express provision to Section 60(5) of the principal Act providing for binding effect of the opinion of the analogous Review Committee on the Government concerned and the police officer investigating the offence is found in Section 2f the Repeal Act. However, because of the wide import of Section 2(3)(a), consequent to o the opinion/direction of the Review Committee, as held by the Apex Court, nothing more is required to be done the Public Prosecutor drawing attention of the Court to such opinion and which in turn after except 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 Sectionthat context, we have to consider whether it is open to the State Government to challenge the 60. In directionReview Committee in any of the 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 investigatingwere to challenge the direction issued by the Review Committee under Section 60(4) of the offence POTA, on the grounds of some illegality, such a challenge cannot be permitted because of the mandate simply 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 are matters which will have to be examined on case to case basis. It is not possible nullity. Those 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. indisputably, it is the State Government which has to carry the proceedings by prosecuting the For, offenders in the crime against the society, inter alia, offences under POTA, and in particular, offence involved against the sovereignty and integrity of the nation, such as falling under the POTA Act. Reverting to the decisions service by the defence Counsel, of Delhi High Court and the Gujarat High Court, will be of pressed into 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 ullity, it is not open to the Government concerned to challenge the same. The bar of provision such n as Section 60(5) of the principal Act would be lifted in that situation. In other words, if the direction issued by Review Committee is a nullity or ultra vires, that would not bind the concerned Government, nor the 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 thatdirection is nullity and ultra vires. The Review Committee has dealt with the case of accused Nos. 4 and the 5 paragraph in
17. In the first place, it has noted that Section 4(a) of POTA was not attracted against these accused, as thereno recovery of arms or ammunition from them. As regards this opinion, we find the same to be was 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 instance of accused Nos. 4 and 5 is only articles which were explosive substance, R.D.X. Even the the learnedemphasised that recovery of such articles would nonetheless attract provisions of Section 3 of A.P.P. the Explosive Substances Act and Section 4(b) of the POTA Act, on account of unauthorised possession of any dynamites or hazardous explosive substances or other illegal weapons capable of mass destruction or arms, biological or chemical substances of warfare in any area, whether notified or not. In other words, the prima opinion recorded by the Review Committee 92 facie 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 in paragraph 89, to the effect that, where there is some evidence that suggests that a case against the ruled, 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 in mind by the Court while considering the application for discharge by the accused. Even if we were kept to liberal attitude and assume that the prosecution did not explain the said circumstance, that by no take standard, the basis for the Review Committee to proceed on the basis of conjectures and surmises to could be answer the matter in issue as to whether there is or there is no prima facie case to proceed against the accused. For what is to be considered is the evidence collected by the prosecution during the investigation, even that, 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. Shaikh's 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.5.0 9 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 examining whether there is a prima facie case for proceeding against the accused. For that, the test for 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 SectionPOTA against accused Nos. 4 and 5 is that these two accused were not connected with incidents of 4(b) of terrorism in the four Bomb Blast Cases in any manner, except their alleged involvement in the conspiracy
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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 that these two accused were party to any such conspiracy. As regards this aspect, it is well-established facie, 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 act is committed by him at any stage of the transaction in furtherance of the conspiracy. The overt learnedhas taken us through the material on record, which discloses the involvement of accused Nos. 4 and A.P.P. 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 primacase for proceeding against the accused. The Review Committee, therefore, could not have rested its facie 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 mass destruction. As a result, even this opinion recorded by the Review Committee, on the basis capable of 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 accused Nos. 4 and 5 is that the report of the expert / analyst that R.D.X. and detonators against allegedly from these accused were explosive substances was not placed before it. Even this opinion recovered 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 in this submission. Accordingly, even this opinion will have to be discarded, being perverse and a merit 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 to the charge for offence under Section 4(b) of POTA. In that case, the Review Committee was regard 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 ith regard to charge under Section 4(b) of POTA is perverse and jurisdictional error, founded on w that opinion, direction purported to be under Section 2(3) of the Repeal Act was issued, which is nullity. In view finding, the first option for this Court would be to relegate the parties before the Review Committee of this for consideration of the matter in relation to charge of conspiracy read with Section 4(b) of POTA reagainst Nos. 4 and 5. Considering Section 2(3) of Repeal Act, which stipulates that the review of every accused 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.
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98 conf.5.09 139. Notably, the time-limit specified in the Act is a definite period of one year from the commencement of Repeal Act. The Repeal Act came into force on 21st September, 2004. The Review Committee the could, therefore, validly review the case before expiry of one year from that date and not thereafter. The review by Review Committee thereafter has not been saved by the Repeal Act. In any case, having taken the the viewthe opinion recorded by the Review Committee on three aspects with regard to the charge in relation that 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,the same reason, the direction issued by the Review Committee on the basis of such opinion, in for purportedof powers under Section 2(3) of the Repeal Act, will be exercise 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. accused Nos. 4 and 5 were also charged for offences such as under the 99 conf.5.09 Admittedly, 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 canjustly raised by the State by way of writ petition under Article 226 of the Constitution, notwithstanding be 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 accusedand 5 for other offences in the same trial and, at any rate, could have invoked powers under Section Nos. 4 33 the POTA Act to transfer the case of accused Nos. 4 and 5 to regular Court to try offences simpliciter of under enactments. We, however, eschew from giving any final opinion on this aspect, as it is not necessary other to so, in the fact situation of the present case, for the view we have already do taken. 143. If the foundation, on the basis of which, the Special Court proceeded to pass such order itself is nullity, decision of the Special Court cannot stand the test of judicial scrutiny. We are in agreement with then, the the submission of the learned A.P.P. that, in the peculiar facts and circumstances of the case, the State could not challenged the direction issued by the Review Committee in earlier point of time, except by filing have the present writ petition after the decision of the Special Court withdrawing the entire prosecution against accused and Nos. 4 5. 144. Taking overall view of the matter, therefore, we have no hesitation in partly allowing the writ petition as by the State and also setting aside the decision of the POTA Special Court impugned in 101 filed conf.5.09 Criminal Appeal No. 4 of 2009. Resultantly, the appeal preferred by the State, being Appeal No. 4 of 2009, succeed. We are inclined to do so having upheld the opinion of the Review Committee to would withdraw against accused Nos. 4 and 5 for offence "only" under Section 4(a) of POTA, and not prosecution withdrawal
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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 the charges framed against them for all other offences except Section 4(a) of for POTA. 145. In other words, the direction issued by the Review Committee to withdraw prosecution against accused and 5 for all offences under POTA will stand modified to direction to withdraw proceedings Nos. 4 against Nos. 4 and 5 for charge of Section 4(a) of POTA only, in the light of the finding recorded accused 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 by the POTA Court, now we shall consider matters pertaining to the trial of A1 to A3. free of A4 and A5 We given our anxious consideration to the submissions advanced by the rival parties and carefully have perused record with their assistance in order to ascertain merits from the same for determining the entire whetherof guilt of each of the accused was rightly arrived at by the trial court. However, having due regard finding to stand taken by the defence that there is no dispute about the occurrences including incidents of the explosion persons having been killed/injured during the same and / or damage to the property, as alleged and / or the by prosecution, the analysis will be restricted to the question of involvement of the A1 to 3 in the 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 for A1 and A3 had repeatedly made the grievance that throughout trial an attempt was made on Counsel part of prosecution to put leading questions to prosecution witnesses. It was urged that in spite of the objection respective occasion since commencement of trial, that was continued by the prosecution. raised on That the defence to request the Trial Court to record examination-in-chief of prosecution witnesses forced in question and answer form. 149. It was further urged that during recording of examination-inchief of prosecution witnesses in such manner some time the objection raised was decided by the Court. However, on majority of occasions same deferred for deciding at the time of the final submissions at trial. It was further urged that the Trial were Court to decide such objections at later stage and even while delivering the judgment, same has failed remained That has resulted in causing grave prejudice to the defence. It was urged that this Court ought undecided. to examine each objection which was raised and recorded but has remained undecided. Further, the evidence to be brought on record in such a improper manner deserves to be excluded from consideration. permitted 104
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conf.5.0 9 150. 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 of individual accused under Section 313 of the Code of Criminal Procedure, the defence examination had moved the Court for deciding such (undecided) objections and invited order of the Court thereon. In response query the learned defence Advocate fairly submitted that they had not moved the Court either to the said 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 by the Trial Court was submitted on behalf of the defence by mentioning witness wise, examined 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 list. That time was given to the defence counsel. Even thereafter, we noticed that questions in the said pointedthe revised chart were apparently not leading questions. Again time was sought by defence to out in recheck aspect and confine the objections to selected questions. Ultimately, as recorded by us in detail in the said the sheet form dated 12.11.2011, the learned defence Counsel confined the objection for the order questions to be asked to PW-2 and PW-4 at page 1216, 1217, 1322 and 1323 of paper book being the permitted leading questions. The learned counsel also pointed out the objections recorded on pages 1426, 1518, 1544, 1555, 2415 and 2522 and urged that the objection thereto were wrongly rejected by the Trial Court. 2400, Similarly, Counsel drew our attention to pages 3646, 3659 and 3555 and urged that regarding the said the defence 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 that the defence, however, did not insist for recording of cross examination in similar manner urged 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 Sectionthe Code of Criminal Procedure, is indicative of defence having waived those objections, if any. 313 of She that since only the legally permissible or admissible evidence and or the circumstances emanating urged 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 defencewaived the objections raised. She further urged that with such a conduct now the defence should not having 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 .
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153. The question that arises is about the admissibility of evidence and or the objection raised thereto. It will be out of place to pinpoint the observation regarding such aspect made by learned authors Woodroff not &mir Ali :in the treaty on the "Law of Evidence by Woodroff & Amir Ali" 14th Edition wherein the A 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 articular piece of evidence, he should declare in favour of admissibility rather than of non-admissibility. As p a eneral rule evidence should never be shut out. "Under the Evidence Act admissibility is the rule, g 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 be in a position to estimate, as its true worth the evidence given by each witness, and nothing, that should 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 The fact that a document was admitted without any objection from a party does not entitle the court law. to admit in evidence what is in law inadmissible. It may be noted that the reception of inadmissible evidence less injurious than the rejection of admissible evidence, because, in the former case, in arriving at would be a ecision the evidence wrongly admitted can well be excluded from consideration whereas, in the latter d case,evidence wrongly excluded can only be brought upon record by having recourse to further the proceeding thereby the prolongation of the trial and possible harassment to the persons necessitating 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.5.0 9 regarding admissibility of any material in evidence the court does not proceed further without passing order objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds on such a articular objection and excludes the material from being admitted in evidence and then proceeds with p the and disposes of the case finally. If the appellate or revisional court, when the same question trial is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court be deprived of the benefit of that evidence, because that was not put on record by the trial court. would In a situation the higher court may have to send the case back to the trial court for recording that such evidence to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account and then of
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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 for better substitutes which would help acceleration of trial way proceedings. 13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised evidence taking stage regarding the admissibility of any material or item of oral evidence the trial during 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 ocument the court has to decide the objection before proceeding further. For all other objections d 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 taking stage, would not be wasted on account of raising such objections and the court can continue evidence 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 again for fresh disposal. We may also point out that this measure would not cause any prejudice to court 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. supplied) (Emphasis
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 within the question asked, then, the same cannot be termed as a leading question. In other words, if not 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 in certain contingencies. The earlier part of the said provision relates to putting of a question question during the examination-in-chief or re-examination in the event of the same being objected by the adverse party, permitted by the Court. Thus, the said earlier part clearly confers discretion upon the Court to unless permit leading question even during the examination in chief or re-examination. Considering the purpose asking 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 a leading question, the Court has ample power to permit it if the question is relating to matters which be 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 upon the Trial Court is not unguided, untrammeled or arbitrary, as guidelines for conferred exercising are found in the said provision. The word, "shall" used in the second part of this Section makes discretion it clear, the circumstances in which the Court may permit putting of a leading question during the examinationin respect of matters (a) which are introductory (b) undisputed and (c) which in the opinion of in chief i.e. the has been already sufficiently proved. Thus, it is clear that in the event of Court having permitted Court asking questions in the examination-in-chief for such a matter, then, granting of permission would leading 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 We do not find any substance in the said objection raised, as the witness had earlier stated that thereto. the was near the bus stop. By the said question witness was asked whether Hanif had informed him as bomb 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 answer conveys two facets i.e. occurring of bomb blast incident at Ghatkopar and secondly that the said bomb was kept at Seepz (Andheri) had failed. The objection is in the context of the second aspect which describingwhere the bomb was kept had failed i.e. Seepz. As aforesaid, the witness in his previous the place answer to that aspect. In the said context even considering the answer given by the witness and recorded referred 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 regarding the nature of the said bomb or what had happened to that bomb or the place where the clue sameleft below the seat. In our opinion, the objected question did not give clue regarding the place at was 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? Three sim cards were bought. They are 9892451184, 9892451167, 9892451164 were purchased. Ans: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 considered at the stage of will be arguments). 115 conf.5.09 160. PW 4 was examined by the prosecution for proving sale of simcard to encountered accused Nasir i.e. which was found in a mobile on his person after the encounter. It is the prosecution case that said card card purchased by said Nasir under the name Mr. Habib Umar from the retail shop in which PW 4 was 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. regarding purchase of six card had already surfaced on the record. Thus, the question cannot be said to P-278 be uncalled for or the manner in which the said first question was framed cannot be said to be a leading if considered in light of the later part of Section 142 of the Evidence Act. The same is the question, case regarding the other question asked to the witness as apparently the said purchase memo was not containing digit number of the relevant entire 10 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 to be out of context or an impermissible leading question as such. Similarly, the last question be said referred being put for proving the contents of the documents, the same also cannot be said to be a to above, leading Such a conclusion is inevitable as none of the said question within themselves was containing question. one only one implicit answer suggested with a hope of getting the same. Thus, careful consideration and of question asked in examination-in-chief and objection raised and answer received clearly reveal none of them leading question, much less impermissible leading question. Thus, we do not find any substance in being the
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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 facing the trial, is while 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,came out of that you 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 the parade room, I had came out of that room after holding T.I. visit 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. indicating that witnesses were asked by her to sit in adjoining crime detection office. She In first para closed of that office and verified that they will not come in contact with others comes after the the door averment selection of panchas, however Ld. Cross Examiner is pre-supposing in the question as if the regarding 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 which is to the 1518 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 about the permission granted for C.N.G. for those shop keepers. Ld. Adv. May first question knowledge about knowledge of the witness as to whether R.T.O. Had approved the shop keepers in Sion-Koliwada then onlyquestion may be put to this witness). (Note: Witness at this stage states that he is not feeling this well therefore he is not in position to give correct dates as according to him he is under tension. According to him date may be wrong but he is sure about January 2004. As it is recess time, Ld. Adv. Mr. Wahab the requested to Adjourn the case till tomorrow, on the ground of personal difficulty hence case is Adjd. the Court To 30.10.2005. ) 165. The said question as framed, was not for adducing evidence of PW 15 regarding C.N.G. Gas kit fitted intaxi. We fail to understand as to how this question is relevant one at all with the matter in issue. Besides, a we not find any infirmity about the trial Court having asked to reframe the said question. At any rate, do it
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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 138 of the Evidence Act which reads as under: "Witness shall be first examinedto Section inchief................................................................................. ......................................................... .............................. cross-examination must relate to relevant facts, but the cross-examination need not The examination and be confined to the facts to which the witness testified on his examination-inchief. 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 on page 1544 of the paper book. recorded Q. This is not in your Police Station..... (Statement)..... can you assign any reason? 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 statement was made by witness in his previous statement to the Police. Therefore everything which such was volunteered by witness in the course of his cross-examn. Cannot amount to significant omission. Hence, is disallowed. question 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 It is settled legal position that whether a particular omission amounts to a contradiction is to out. 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 cross examination does not reveal any foundation laid for putting such question, that is to say earlier any answer given by PW 15. In view of the same, discarding of the said question on the said objection also is appropriate.
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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? is disallowed as witness has already answered to that effect.) (Question 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 alongthe other Police Officers while he was attached to DCP CID Unit-11 i.e. Crime Branch Unit. The with earlier received during cross examination reveals that he was not required to maintain personal diary as answers he attached to Crime Branch Office. We are unable to find any fault 122 was conf.5.09 with disallowing of the question by the Court. Needless to add the matter in issue at the trial was the said effected by the team of Crime Branch. Hence the question asked to the witnesses whether he arrest 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. Do you know to read and writ Marathi very well? 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 for the next question were pointed by the learned counsel for urging that said question recorded disallowed was not confined to the knowledge of knowing Marathi but was also regarding his ability to read Marathi and the same was asked as a foundation 123 thus 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 till then recorded also do not reveal any of PW 99 justification. 172. The next aspect pointed out relating to objection raised is found recorded at page (2522). That objection open. The same apparently relates to omissions occurred in the evidence of PW8 to tell was kept certain during recording of his police statement. It appears that it was the submission of learned matters SpecialProsecutor that Hasanbhai and Rizwan were arrested, the fear was lost. The said point was kept Public open Court at the time of argument. The relevancy of the said question or the said omission was by the amounting to contradiction has not been shown to us by the learned defence counsel. At any rate, the said aspect also not appear to have been vitally connected with the matter in issue. Moreover, even later on the does learned counsel having not perused the matter for getting the said objection decided, we do not find defence 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 substance in the grievance of the defence that it is a case of mistrial. Circumstances/evidence not put any to accused during 313 statement the 174. The defence counsel made a grievance that judgment of Trial Court reveals amongst other evidencebeing placed upon (i) the confessions of A1, A2 and A3 during the course of investigation reliance and (ii) the matters emerging from the reports of a Chemical Analyser pertaining to the material allegedly seized the course of the investigation and sent to them for the purposes of examination for arriving at during 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 to A1, A2 and A3 during their examination under Section 313. 125 circumstances 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.Inspector of Customs vs. Yash Pal reported in 2009 All MR (Cri) 1195 (S.C.) to contend that 2583; 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 counsel further urged that otherwise placing reliance upon such material would be causing great defence prejudice to the accused resulting in denial of fair opportunity to meet the material against him. It was urged trend of latest decisions reveals that in the event of such a material being not put to the accused, that the 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 to A1, A2 and A3, and relying upon the same while arriving at the finding of their guilt importance clearly the trial being unfair to them. It was urged that considering the incident for which the case is indicates 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 which the said examination is effected, reveals that primarily such an examination is required the stage at to effected regarding the circumstances appearing in the prosecution evidence against the concerned accused. be She urged that though the word "prosecution" is not used in sub- section (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 because the same is unlikely to contain any incriminating circumstances against him due to the any, same
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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 that not putting the questions to the accused about the incriminatory matters contained in his urged 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 fully belies the defence submission of the material regarding the first part pertaining to the recording same 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 examination of the accused being not an empty formality, considering the answers to the last behind question of the accused, the record clearly reveals that even the material regarding the matters contained put to each in confession was put to each of the accused. The learned APP also placed reliance upon decision in a case of the 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 amounting to not causing any serious prejudice to the accused. same 179. The learned APP further urged that considering the answers received to the said questions, it is amplythat no further questions regarding the said matters were required to be put - as putting the same clear would have amounted to making futile exercise and/or observing empty formality. It was urged that such aonclusion is apparent after considering the said answer received regarding last question put to A 1 to 3 c 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 which are to be put to the accused. It was urged that considering the purpose for which the questions criminal held and the settled position that the Prosecutor and even the Advocate for the accused trials are 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. that though it is true that the amended provision came in force since 31.12.2009, still even prior She urged to same it would have been the duty of the defence counsel to assist the Court by pointing out the certain which according to them had remained to be put to the accused rather than trying to make capital questions of same before this Court. The learned APP further submitted that even the decisions pointed out by the 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 a purpose. It was urged that in spite of the arguments being in progress for quite some time and for such 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 bother to point out 130 not 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.
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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 to A1, A2 and A3 cannot be said to be detrimental or the same cannot be said to be a circumstance put causing to them. At any rate, in the facts of this case, we do not find it necessary to decide the wider prejudice aspectwhether the confession of accused can or cannot be treated as prosecution evidence. For, we find as to that has been substantial compliance of putting the questions regarding the confession i.e. there regarding of the same and the matters contained in the recording confession. 131 conf.5.09 181. However, before dilating about the same and with regard to the decision pointed out by learned counsel accused, the reference to the decision in the case of Shivaji Sahabrao Bobade .vs. State of for the Maharashtra 1973 (2) SCC 793 delivered by three- Judge Bench of the Apex Court reveals the reported in 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 as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this material so area gravely imperil the validity of the trial itself, if consequential miscarriage of justice has may flowed. where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice However, occasioned by such defect must be established by the accused. In the event of evidentiary material not going the accused, the court must ordinarily eschew such material from consideration. It is also open to put 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 plausible or reasonable Court any 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 ground to get out of the circumstances on which the trial court had relied for its conviction." good (emphasis supplied) 182. Having regard to the observations made in the three-Judge Bench decision, we do not propose to make detail any discussion 132 conf.5.09 about the other decisions relied by the defence except stating that in the present case, the said decisions also be of no assistance to the accused persons. would 183. We say so because the record before us reveals that PW88 DCP Vinod Lokhande had recorded of A1 and so also that of A2, while PW 90 had recorded the confession of A3. Now perusal confession of Exh.P-615 i.e. record of the examination of A1 and more particularly question Nos. 1106 to 1250 from the pointed out by the learned APP, in no uncertain terms reveals that all the questions pertaining same 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. to 1250 from the same pointed out by the learned APP, in no uncertain terms reveals that all 1106 the questions pertaining to recording of the confession of said three accused by the three Recording Officers were him. Similarly perusal of Exh.P-617 i.e. record of examination of A3 and more particularly put to question to 1250 from the same pointed out by the learned APP in no uncertain terms reveals that all Nos. 1106 the questions pertaining to recording of the confession of said three accused by the three Recording Officers were to her. Without dilating in detail 133 put 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 recorded by DCP Shri Lokhande PW88 which is now read over to you?". A1 had answered that Exh.506-A all contents of the confessional statement at Exh.506-A are incorrect and the facts appearing in the 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 i.e. question no. 1660 with change of exhibit number of his confession as 506-A. A2 had question answered the said question by stating that confessional statement was already prepared by investigating officer and he asked by DCP Lokhande to make signature on the confession which was already prepared. was Further, of Exh.506-A have not been stated by him. Thus, confessional statement is a false document. contents 134 conf.5.0 9 186. Perusal of Exh.617 examination of A3 also reveals that similar question no.1660 was put to her with ahange of exhibit number of her confessional statement (Exh.522-A) recorded by DCP Mrs. Archana c Tyagi A3 answered to the said questions that her confessional statement read over to her was false and PW90. the stated therein were not stated by facts her. 187. Thus, considering the said question no. 1660 put to each of the accused, it is crystal clear that the samepertaining to the matters stated by respective accused in their confession to the Recording Officer. was 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 of the same, it was rightly canvassed that it does not lie in the mouth of the defence to contend that view the matters from the said confession were not put to the respective accused. The argument that it was necessary to each of the matter stated in the confession made by respective accused, is devoid of merits. Needless put to that examination contemplated under Section 313 of Cr.P.C. should be meaningful. After receiving add 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 putthe accused. The only submission canvassed was that after lapse of time after the incident , remanding to 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 rejected earlier. According to the defence, not putting the matters from the C.A. reports regarding have 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 by them, has resulted in miscarriage of justice. It was argued that it is prosecution case that made 136 conf.5.0 9 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
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of India. Further, the accused persons were found in possession and/or connected with such a material being from recovery of similar material either from their house or the place pointed by them. Therefore, revealed it necessary to put the relevant CA report regarding such material seized from respective place and sent was to for examination. Failure to do so has caused prejudice to them, having an effect of vitiating the trial C.A. on same count as canvassed for the matters from the 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 take any stand of either some other material being found at the said places and/or the material did not seized respective places being not sent to C.A. for examination and/or some other material being from the sent of evidence placed before the Court that the material sent to C.A. was received by him in inspite intact condition. It was urged that the matters from the C.A. report again in stricto senso being not the evidence but opinion arrived by C.A. regarding the 137 the 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 Administration) .vs. Dharampal reported in (2001) 10 SCC (Delhi 372. 191. In the said context, without unnecessarily reciting in detail from the record of examination of each of A1A3, it reveals that evidence regarding seizure of the said material from the respective places and/or to sending to the C.A. was put to each of the said accused but the accused did not take any stand in that the same behalf. It is, therefore, difficult to perceive that substantial compliance of drawing attention of the accused person to incriminating material against them was not made. In other words, there is no substance in the the grievance that opportunity as contemplated under Section 313 was not given to the respective accused. It can be further that somewhat similar position has been spelt out from the decision in the case of Dharampal added (supra) out by learned APP and particularly the last line from the paragraph no.15 of the said decision to pointed the "in our view in such cases it is enough if the attention of the accused is brought to the report or effect 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 and Section 220 (1) of the Code . The same reads 219 (1) 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, when combined a different offence, the person accused of them may be charged with, and tried constitute 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 be held for more than one offences if the acts constituting the same are committed in the same course can 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 the offence constituted by such acts when for 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 the prosecution case that acts committed by A1, A2 and A3 were for achieving the object of is conspiracy the combined overt acts committed by them being preparing the bombs and planting of bombs hatched and at said places makes it crystal clear that all the acts designed to achieve the said object would be required to the 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 confession of each of the said accused prima facie reveals the acts committed by him were stated in 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 is also difficult to accept that without the said accused being tried at one trial, the prosecution alleged. It 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.5.0 9 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
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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 relating to the procedural aspect and not relating to violation of substantive right vested in the being accused and justice/law being not mistress of the procedure and even violation of the same to the detriment of defence shown, the submission canvassed will deserve to be rejected. Thus examining the matter from being not 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 error or omission in framing of charge by itself would not vitiate the trial unless and until it is mere 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 he is supposed to meet. Thus, examining the matter from the said angle in event of the accused which 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 conspiracy, it would have been practically impossible to specify the date of hatching of object of conspiracy acts committed by each of conspirator during the course of the continuance of the and/or the conspiracy. Having regard to the same and having regard to the observations of the 143 conf.5.09 Hon'ble 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 canproved by either direct or by circumstantial evidence. It is not always possible to give affirmative be evidence date of formation of criminal conspiracy, about the persons who took part in the formation of about the 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".supplied) (emphasis 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. of NCT of Delhi reported in (2008) 14 SCC 94 : (2009) 2 SCC (Cri) 783 and paragraph nos.20 and State 21 the same relied by learned counsel for A3, will be of no avail. In the said decision, the from concerned charged for commission of offence under Section 498-A and 304 (B) of IPC. The Court accused was therein to the conclusion that details of the acts constituting cruelty being not mentioned in the charge, had come the occasioned prejudice to the accused. The position in the present 144 conf.5.09 same 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 Moreso, because the defence has failed to pin-point what prejudice is in fact caused to the defence. us. Nothing of that has been shown to us. The same reasoning would apply for not accepting general submissionof charge framed being blissfully vague and/or charge for every distinct offence being not canvassed 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 at head fifthly of the same being vague as the same amongst other only contains the 145 framed 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 exploded. One cannot loose sight of the purpose behind framing of charge, envisaged under having provisions 218 onwards of the Code of Criminal Procedure. The matter stated in the charge and so also of Section the charge head sixthly for which also similar sort of grievance was made by learned counsel , clearly gives an of act of planting a bomb for causing an explosion being jointly committed by A1 to A3. Since the idea charge was depicting main act jointly committed giving necessary notice to the concerned accused regarding which he is supposed to face at the trial, the said submission cannot be considered as an error or accusation 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 attempt was made by the defence during the prolonged trial to invite attention of the trial Court to that any the called errors , if any. 146 so conf.5.09 Grievance regarding witnesses being planted by the prosecution & opportunity not given to examine the defence witness 200. With regard to the aforesaid grievance made by learned counsel for the defence that surprisingly enough witness / witnesses examined by the prosecution regarding identity of the concerned all main accused with the four main incident to which the case relates, have asserted that they have identified connected 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 read as a whole. Even if we may agree that every witness claims to have identified the accused be concerned happening of particular event at the relevant time, that does not warrant disregarding the witness because of as whole. Without giving the details of prosecution witness, at the 147 a 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 assenger who had scuffle with the culprits while alighting the bus. With regard to the third incident, p witness to have come across concerned accused during the course of travelling on the road. In the appears fourth the witnesses came across accused persons having visited Gateway of India in a taxi. The said incident 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 orchance witness as tried to be canvassed. The same is apparent as evidence of each of the witness reveals the a reason behind the said witness being at the particular spot. Notably, the reason given by the respective remained un-shattered during the cross examination. In that case, their evidence is not liable witnesses to discarded on the argument under consideration. Apart from the same even presuming that the witness to be a chance witness i.e. "witness claiming to be witnessed for the incident due to having appearing 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 of their evidence lacking support of corroboration from some other independent evidence, it will count be necessary to say that the same being contrary to the legal position will not deserve credence. The reference to decision of Apex Court in the case of Vadivelu Thevar vs. The State of Madras reported in AIR 1957 the SC wherein Hon'ble Apex Court while considering the question of Court insisting upon plurality of a 614, 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 wayit convict or may acquit on the testimony of a single witness, if it is found to be above reproach may 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 circumspectlook for corroboration in material particulars by reliable testimony, direct or circumstantial. and has to There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of aingle witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be s 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 is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open if it to suspicion, it becomes its duty to act upon such testimony. The law reports contain may precedents where the had to depend and act upon the testimony of a single witness in support of the prosecution. There court 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, there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it where is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to upon the testimony of the first witnesses, which is the only reliable evidence in support of act 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.
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Even the case regarding investigating agency having planted concerned witnesses will be required to be 150 conf.5.0 9 determined after considering the evidence of the said witness as a whole and in the light of other evidence at the trial. surfaced 204. In the same/similar context, the grievance was made by learned counsel for A1 that though effort was by the defence to establish nexus of a particular witness by examining defence witness and/or made by seeking summons for production of the documents to throw light upon the connection of witnesses, that of panch Shri Popat, but, the court rejected the request to issue summons to that witness. particularly It also urged that the defence had also not received proper opportunity to establish the defence was 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 summons i.e. for the production of documents and examination of witnesses with regard to the witness 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 trial urged that the said order in clear terms reveals that learned counsel for A1 had made statement that the he not want to lead any oral evidence and has finished defence evidence. According to learned A.P.P., does this document also reveals that 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 that photostat copy not being the primary evidence, the same was rightly rejected by the Court. It urged was further urged that similarly the witness Gulabrao Pole summoned was required to be discharged because sought to be proved through him was not produced by the defence. The position as pointed document by learned APP is supported from the order sheet. We find it difficult to accept the grievance of the accused of not being offered fair opportunity to them for producing defence evidence. In fact, they person themselves the defence evidence. Thus, there is no question of any injustice caused to had closed 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 was never brought by him at any point of time in the Court. However, instead of the same such a fact course by him creates grave doubt about the matters spoken by him during the evidence. It was urged adopted that also denotes that investigation was carried out by inferior officer than prescribed under POTA same 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 94 reveals that the same pertains to "daily diary" i.e. station diary maintained at the Police nos. 93 and 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 grievancefor made non153 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 the same is to the effect :- "At this stage the witness requested the court to allow him to refer the 2498, 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 of PW103 having given the evidence on the basis of note-sheet. It is true that in the event count of investigating officer not remembering certain matters, it is permissible in law for him to look in the case diary the course of recording of his evidence. Needless to add that in such event even the limited use of during 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 to facilitate them to give evidence without time being wasted in repeatedly going through the diary 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 was taken but copy of the same was also furnished to the defence. Needless to observe that giving a care 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 aecourse or that there was possibility that investigation was carried out by the officers other than r 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 `POTA') by the accused persons (Exhibit-P-573) dated 4.2.2003 was not placed on record practically at as the
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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 order of sanction or claim staked by PW-102/103 about the same by pointing out that the final report said of investigation i.e. charge sheet for four crimes investigated by PW-103 was submitted by him on the 5.2.2004 sanction order bearing dated and the 4.2.2003. 212. In the same context he also invited the attention to the evidence of Deputy Secretary from Mantralaya PW-102 and particularly himself having received the proposal from Chief Investigating Mr.Hirlekar, Officer for granting sanction on 23.1.2004. The learned counsel urged that the order of sanction bearing PW-103 a ate preceding to receipt of the proposal supports the defence submission of there being no fair trial and/or d the order 156 conf.5.09 of sanction having not come into existence as claimed by PW-103. The learned counsel also urged that PW2nly claimed to have signed the sanction. He cannot be equated with the sanctioning authority. It was o urged view of the same, the so called explanation tried to be given through the evidence of PW-102 that that in the was wrongly printed as 4.2.2003 on the said sanction order which was granted on 4.2.2004 cannot date 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 prosecutionexamined the sanctioning authority or the person competent to accord sanction on behalf of having not the authority as per the provisions of Section 50 of POTA, the defect apparent on the face of order of sanction remained to be properly explained. The so called explanation of PW-102 will not deserve thus has 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 dated 5.2.2005 regarding the order passed by Special Judge upon charge sheet submitted by the sheet Chief Investigating Officer on the said date. Opening lines of the said order are to the effect "Perused the sanctionissued by Home 157 order conf.5.09 Department (Special), Mantralaya, Mumbai dated 4.2.2004 to prosecute the accused in this case along with sheet filed today by the I.I. Mr.Valishetty, ACP, D-1, DCB, CID, Mumbai alleging charge offences under POTA, 2002 for various terrorist acts ..........". Without detailing further part of the punishable said it can be said that by the said order the POTA Special Court has taken cognizance of the offences order under and the offences under other enactments for which the said charge sheet was submitted against POTA 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. to add that as pointed out earlier, the opening part of the said order itself reveals that the order Needless 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 State Government is a prerequisite condition for POTA Court for taking cognizance of the offences the under Act. The learned APP thereafter drew our attention to the relevant part of the order of sanction, POTA which under : runs as
158 conf.5.09 "And whereas , in accordance with the provisions of Section 50 of the Prevention of Terrorism Act, 2002 , a Court takes the cognizance of the said offence , it is necessary for the State Government to before accord to the prosecution against the accused persons. sanction Now, therefore, in exercise of powers conferred by Section 50, the Government of Maharashtra hereby sanction to the prosecution against the accused persons for the said offence committed by the accused accords persons for taking cognizance of the offence by the Court of the competent jurisdiction." Thus, it is rightlythat the order of sanction is in consonance with the provisions of Section 50 of the POTA Act. urged By taking us through the entire order, she rightly urged that the material therein clearly reveals that by the said the sanction was granted as per the provisions of Section 50 of the POTA Act for taking cognizance order of offences described in detail in further part of the body of sanction order i.e. the offences the allegedly by six accused persons and one deceased accused and eight absconding accused named in the said committed charge sheet. 215. A perusal of the relevant part of the evidence of PW-102 reveals the steps taken by him after receipt of proposal from the Chief Investigating Officer PW-103. The material part of the same reveals that the 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 order of State Government under the Maharashtra Government's Rules of business, had found to sign the that was prima facie evidence against the accused 159 there conf.5.09 persons for according sanction for prosecution under the provisions of Section 50 of the POTA Act. None of answers elicited during the cross examination can be said to be affecting the core of the testimony the of PW-102- that he only processed the file and sanction was accorded by the Chief Minister. Further, he merely the order of sanction due to the same being permissible under the Rules of business of Government signed of Maharashtra. His further evidence also reveals that thereafter he had sent the proposal to Law and Judiciary and thereafter the same was forwarded to the office of the Chief Minister. The Chief Minister Department 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 during the cross examination excepting that his statement was not recorded by the Police or being elicited file concerning the papers was not demanded by the Investigating Officer. He also admitted that the fact of receiptproposal from Mr.Vallishetty was not mentioned in the order of sanction. He also admitted of of the 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 meeting with him 160 for a 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 sanction. He denied the suggestion given to him that he was unable to produce the same because according no file was in existence or that there was no proposal from the Investigating Officer and there was such 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
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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 the same as permitted by Government Rules of business. Having regard to the same, the signed purported defect occurring in Exhibit-573 being not in relation to the matters contained in the sanction order but the is related only with the date of issuing the same, we fail to understand the necessity of examining same 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 behalf of State of Maharashtra. Similarly, the inability to remember the minor matter as to who Act on had the letter to the Investigating Officer or not remembering whether PW-102 had made a noting on issued the about discussion with Mr.Valishetty can be said to be affecting the core of his testimony. file Similarly the answers in the cross examination that all the noting along with the papers were available considering 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 same now made by the learned defence counsel will not deserve any about the credence. 218. Accordingly, we are unable to see any substance in the submission canvassed that the order of sanction in existence as claimed or about his contention about existence of sanction as claimed by PW-102. was not 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 result of vitiating the prosecution or taking cognizance of the offences under POTA Act for which has a 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 according sanction for prosecution of the accused for offences under The Explosive Officer for Substances being not valid and legal. The learned APP urged that the fact of such a sanction/consent Act, 1908, being accorded by PW 100 has been duly established by his evidence. She urged that observation made by the trial that the said sanction order is silent regarding penal provisions of The Explosive Substances Act, Court 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 in the column no.3 of the table given on the said page numbers, do reveal the Sections matter stated 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 submission canvassed on part of learned APP cannot be said to be devoid of any merit. 163 same 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) to the effect, 362,
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"28. With respect to the finding regarding sanction we are of the opinion that the learned Sessions Judge was right in treating it as not legal and valid. Section 7 does not require a sanction but only consent not 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 the necessary consent. To prove the consent the prosecution had examined PW 52 Balachandran giving who then acting as the PA of the District Collector. He has deposed about the requisition sent by was the investigating officer and the reports and other documents sent along with it and consideration of the same by District Collector before giving his consent. In his cross-examination he stated that he had not noticed the in relevant file statements of witnesses. Relying upon this answer given by the witness the learned the Sessions that in absence of such statements the District Collector cannot be said to have applied his Judge held mind properly to the facts of the case before granting sanction. From the evidence of the witnesses and the copy of proceedings of the Collector it appears that the Inspector of Police had sent his report regarding the 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 for the offence punishable under the Explosive Substances Act it was necessary for the accused 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 Collector was quite legal and by the 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 the 'sanction'; and both the said things being different and the evidence of PW 100 having established not that he had formed subjective satisfaction for granting consent for prosecution of accused persons mentioned in column of the table given in the sanction order, for the offences mentioned in the third column of first the table, the trial Court manifestly erred in coming to the conclusion of Exh.P-565 (colly.) being not same 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 examining the said witness and so also PW 101 upon the similar point regarding the other for crosssanctions by the prosecution. It was urged as such due opportunity being denied to them, the evidence of examined bothsaid witnesses and so also the sanctions purported to have granted by them would be without any the credence would be liable to be discarded. The deposition of the said witnesses and particularly that of PW and as such 101 clearly reveals that such a grievance made by learned Counsel for the accused was rejected by the trial on the count of their failure to show the provisions entitling them to see such original file pertaining Court 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 prosecution, we find it difficult to accept the proposition canvassed by pointing out the said by the 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-P569 urged that as a matter of fact, the table given in the said order does not reveal mentioning of the colly offences Explosive Substances Act 1908 in the column no.3 of the said table and as such, the same cannot under the 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 criticism. Exhibit- P.569 colly being the consent accorded for prosecution of the offences the said 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 atter of fact, considering the said order as a whole and particularly the matters mentioned in paragraph m no.3 same, it is clear that by the same PW 101 accorded consent for prosecution of offences under section of the 3, of Explosives Substances Act. Though it is true that in the said paragraph, there is mention of section 9 4 of Explosives Substances Act but in reality the said Act being confined to only seven sections, mentioning of section in the said paragraph clearly appears to be superfluous due to typographical/clerical mistake gone such unnoticed by the sanctioning authority. Apart from the same, considering the said orders in entirety, the same abundantly clear of sanctioning authority being satisfied and accorded the consent for prosecution makes of offences committed by the accused persons by the acts mentioned in column no.5 of table given in the said The matters stated in the said column no.5 r/w paragraph no.3 of order clearly denotes order. sanctioning authority being satisfied with involvement of concerned accused in commission of offences mentioned in 167 conf.5.0 9 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 discardedExh.P-565 (colly.) will deserve credence and as such the said finding arrived by the trial Court sanction 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 coming into force of the Repeal Act. It was urged that out of five sub- sections of said Section 2 , sub-section (3), (4) and (5) relate to matters pertaining to the review of POTA cases and do not relate to the matters pertaining to the trial. the It urged that savings for such a matter are found in sub-section (2) of Section 2 of Repealing Act. It was was that the said matters do not save and/or permit appointing a Special Judge for conducting trial urged 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 taken by the POTA Court on 5th of February, 2004; and the charge was 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 Judges who were appointed lateron after the repeal i.e. the learned Special Judge Smt. Swapna the 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
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urged that the subsequent appointments were not contemplated and/or provided under the provisions of Act of 2004 nor provision for making such appointment under POTA being saved under saving clause, No.26 the appointments made would be without authority of law. Hence, the continuation of the trial after coming into of the Repeal Act was ultra vires - and nullity. It was urged that count alone, the judgment force 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 said Notifications no fresh appointments of Special Judge was effected. But, only 169 the conf.5.09 the existing post of Special Court was filled up by the concenred Judges to replace the outgoing Judges. It was that control over subordinate Courts being vested with the High Court and such a replacement in urged the nature of transfer of Judge from one Criminal Court to another Criminal Court being permissible under the power regarding posting and promotion etc. vested by virtue of Article 235 of the Constitution , no said faultbe found with the said Notifications issued by the Government with the concurrence of the Chief can Justice Judges of the High Court. It was urged that because of repeal of POTA, it can neither be said and the that was no power with the Government/High Court to appoint a Judge upon the Special Court continued there due saving clause nor it can be said that such appointee will not have power to continue and complete to the the trial. said 228. For appreciating the aforesaid submissions, it will be necessary to take into consideration the provisions in Section 2 (2) of Repealing Act which is as contained 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 such right, privilege, obligation, liability, penalty, forfeiture or punishment as of any 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 year from the commencement of this one Act." 229. Now reference to the Notification dated 19th July, 2002, to which our attention was invited by learned reveals that, the same was issued in exercise of powers conferred under Section 23 (1) (4) of APP, it POTA,Government of Maharashtra in consultation with the Chief Justice of High Court of Judicature by the at Bombay. That notification specified (a) City Civil and Sessions Court, Greater Bombay as a Special Court for area of Greater Bombay for the purposes of POTA and (b) appointed Shri A.P. Bhangale, Judge, the City Court and Additional Sessions Judge, Greater Bombay as a Judge to preside over the said Special Civil Court.
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Thus, the said Notification reveals establishment of Special Court for the purposes of POTA and the Judge City Civil Court and Sessions Court, Greater Bombay was appointed to preside over the from same. 230. Now considering provisions of 2 (2) (a) of the Repeal Act, it is abundantly clear that creation of Special by the said Notification for the 171 Court 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 on 5th February, 2004 upon the charge sheet submitted by PW103 Chief I.O. i.e. much prior to committed 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 were framed in the said case i.e. on 29th June, 2004 , the said legal proceedings would be again saved charges 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 were saved, the same nowhere prescribes that such a pending POTA trial is required to be which 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 provisions of Section 23 (4) of POTA would not be available after 21st December, 2004 due to of the repeal of POTA, still the High Court would be fully competent in posting another Presiding Officer of the equivalent as prescribed under POTA for completion of such trial and making of such a posting can qualification never to be improper, illegal or de hors the power to make such a be said 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 Notification contains the word "appointed" rather than "posting" and as such the same cannot be said termed as posting and will be required to be construed as appointments made without there existing requisite power repeal of POTA clearly appears to be devoid of any merit. In the same context considering due to 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 Accordingly, we do not find any merit in grievance made of trial being continued and completed Court. 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 that as per the said provisions the POTA Court could not have proceeded with the trial without urged there previous sanction of Central Government as prescribed under the said section. The said provision being 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 be found: Provided that, notwithstanding anything in any of the preceding sections of this Chapter, he may no offence shall be inquired into or tried in India except with the previous sanction of the such Central Government. " The learned counsel urged that admittedly it is the prosecution case that the offence of conspiracy to commit blast in Mumbai was hatched in Dubai, a place outside India. It was urged that prosecution has the bomb 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 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 inviting attention to the charge framed at the trial further urged that it is for the acts committed by APP 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 defect having effect of vitiating the any trial. 235. After carefully considering the charge framed at the trial, we find substance in the submission canvassed APP. It is noticed that the charge is primarily framed for the acts committed by the accused by learned 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 been to India from Dubai to cause bomb explosion in India with the help of A2 and A3 etc., Force had 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 at Mumbai. This dispels the argument under consideration. For, the Accused have not been tried for any A1 of offences committed outside India or for the offences requiring the sanction of Central Government the as prescribed by Section 188 of the Code. We, therefore, uphold the view of the Special Court on this issue. of A1, A2 & A3 and Recovery of contraband articles from or at the behest of A1 & Arrest 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 the same is not unnecessarily reproduced. The same, amongst other, reveals that out of them A2 25, was apprehended by the police after receipt of secret information, nearby his house at about 15.30 hours firstly on August 2003 and thereafter he was brought to the office of DCB CID Unit XI at Andheri and 31st after
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interrogation, after his involvement was confirmed in the crime in question, he was arrested on 31st August 2020 hours by PSI Todarmal (PW 51) and after occurrence of the events as stated therein, A2 had 2003 at led panchas and police to the house of A1 and A3 at Salim Chawl, Room No.D/7, Chimatpada, Marol, AndheriMumbai and at the said place, they were arrested along with their daughter Farhin. 176 (East), conf.5.09 237. In order to prove all the said events, and particularly the arrest of the said 3 accused being effected on date, time and place and/or seizures being effected at the behest of A2 and A1, the prosecution has such relied ocular evidence of PSI Vankoti (PW 97), PSI Talekar (PW 98), PSI Todarmal (PW 51), panch upon Mukund panch Sunil Bhatia (PW 53), PSI Vijay Kandalgaonkar (PW 99) and documentary evidence in (PW 50), the shape of personal search, panchanama (Ex.P.385), panchanama (Ex.P.393) and Ex.P.393A), panchanamas (Ex.P.394A), panchanamas (Ex.P.395 and Ex.P.395A) The trial Court has dealt with the (Ex.P.394) & 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 evidence adduced by the defence either for supporting the said contention and/or for repelling and the the prosecution contention, in paragraph nos.82 to 103 of the Judgment under consideration. For the reasons therein, the trial Court did not find any substance in the said submission canvassed; and instead recorded held the prosecution established the factum of arrest of the accused and also the seizure of contraband that 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 No.IX in the year 2003, A2 was apprehended by the officers of unit No. XI at Juned Nagar, Juhu Galli Unit 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 crime at about 20.20 hrs. by preparing panchnama Exh. P-385. The evidence of PSI Shri said Pramod (PW-51) and panch witness Mukund Ingrulkar (PW-50) reveals that during the personal search Todarmal of in all 12 articles were found on his person amongst other i.e. visiting card of Noor Electricals (Art. A2, 12H) by Shri S. M. Hanif (A-1) and A. B. Shaikh significantly with mobile numbers of Nasir owned i. e. 9892077831 & 9892451164 and land-line number 28527761 of A1 Hanif mentioned on the overleaf of said one chit i. e. Art.12/G with the e-mail address of co-accused Jahid Patne (PW 2) recorded on it. cards; It further reveals that PW-50 Mukund Ingrulkar had identified A2 as being the accused in whose personal search articles i. e. Art. 12/A to 12/L were found and seized by the police under panchanama Exh. P-385. said 12 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 his house on the first floor of a chawl situated at a distance of 50 meters in Juned Nagar, Juhu towards Galli, (West), Mumbai and door of the same was opened by mother of A2 Smt. "Kamrunissa". It Andheri further that thereafter A2 had taken out one tin box kept below the cot of his bed-room and after opening reveals 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 August 2003. It also reveals that PW 53 had duly identified the said articles shown to him during 31st course
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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, of both the panch witnesses and signature of A2. Exh.394 reveals that it was concluded at 23.50 signature hrs. on 31st August 2003. 241. Both the above witnesses have deposed that the Police had called Gypsy vehicle and A2 had thereafter and police towards Andheri-Kurla Road, Marol Naka and thereafter A2 had asked to take led panchas 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 Fehmidatwo daughters Farheen (15) and Sakira (5) were also found present in the room. It reveals that A1 and her had that Fehmida was his wife. They have also deposed that PW-98 180 told 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 numbers recorded overleaf were found. It reveals that one of the visiting cards was bearing name and the of Nasir and his mobile number as 9892451164. One more visiting card was pertaining to name 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 opening said bag, same was found containing 125 aluminum clips, clipper machine of Super that upon Eagle Co., One bundle of white polyester filament yarn role, one tightening machine, one soldering machine with and wire attached to it, role of soldering wire, 9 alarm clocks and 16 fire crackers of red colour. It plug reveals articles were kept in a small cardboard box and labels were affixed thereon. It further reveals that said 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 kept in a small 181 were 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.1st September 2003. The evidence of PW-53 reveals that he had identified all the above articles on which to be seized from the house of A1. All the above muddemal articles are duly packed, labeled and came sealed. 243. PSI Talekar (PW-98), PSI Vijay Kandalgaonkar (PW-99) and panch witness Sunil Bhatia (PW53) 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 opened the room and taken out a yellow colour gunny bag kept below the cot and same was had found containing 58 gelatin sticks on which description "Noble-gel 80 NECL-Hingani Wardha" were found printed. that out of the same, one stick was taken as sample and others were seized under panchanama It reveals Exh. P-395/A under the signature of PSI Kandalgaonkar, panchas and of A1. Exh.P-395/A reveals that the same concluded at 7.50 hrs. on 1st September was 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 was picked up from Juned Nagar. Adv. Kunjuraman has invited attention to the evidence given when A2 by Chief IO Shri Walishetty (PW-103) that A2 was arrested at Andheri whereas it is the evidence of police PSI Vankoti (PW-97) and PSI Talekar (PW-98) that the A2 was arrested inside the Kandivali officers Crime Unit. It was thus urged that there is confusion regarding the arrest of Branch 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. date of arrest of A2 is mentioned as 30th August while the arrest panchanama Exh. P-385 records D-77, 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 such there is no discrepancy regarding the date of arrest arrest of A2. She also placed reliance upon that as the decision in the case of Laxmi Raj Shetty Versus state of Tamil Nadu, AIR 1988 SC 1274. and particularly therein by the Apex Court in paragraph no. 25 to the effect : "We cannot take judicial notice matters stated of facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by the evidenceA report in newspaper is only hearsay evidence. A news paper is not one of the documents referred aliunde. to S. 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption in 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 the cross- examination, he stated that A2 was brought from Juned Nagar, Juhu Galli at 4.00 p.m. during on August 2003 and for the purpose of interrogation, he was taken to the office of Unit-XI of Kandivali 31st and interrogation A2 was arrested at 8.20 p.m. It is not in dispute that 184 after conf.5.09 house of A2 was then situated at the Juned Nagar, C.D. Barfiwala Road, Andheri (West), Mumbai-58. Thus it abundantly clear that A2 was apprehended by the officers of Unit-XI nearby his house and for the is purpose of interrogation he was taken in the office of Unit- XI. In view of the same, it is difficult to perceive that then necessary for the said officers to draw any panchanama, much less arrest panchanama of a person it was who then not arrested by them. Needless to add that aforesaid evidence has revealed that only was after interrogation having confirmed about his involvement in the offences of bomb blasts, he was formally arrestedp.m. by preparing requisite arrest memo and thereafter his personal search was conducted and at 8.20 the articles found in his possession were taken in possession under panchanama Exh. P-385. Though it was suggested in the cross- examination of PW-98 PSI Talekar that the then Commissioner of Police and the then Minister held press conference on 1st September 2003 and in that press conference it was reported Home to media that A2 was arrested on 30th August 2003 and A1 and A3 were arrested on 31st August 2003 the 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 the said suggestions being brought to our notice, it is difficult to give any credence to such supporting 185 conf.5.0 9
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 aact being reported to the newspaper by the persons concerned with the said arrest or even f 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, thereno reason for the then Commissioner of Police Shri R. S. Sharma and the then Dy. Chief Minister was 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 Now perusal of the said news item reveals the same being silent regarding the date of arrest of in blast". A1 A3 as tried to be canvassed by learned defence Counsel. and 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 p.m. on 30-9-2003. He further claimed that when along with his family members, he was about to 7.00 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 of photographs and nothing else was seized. He further claimed that A1 and his family members album were to crime branch office at Andheri. He deposed that he was taken to Bhabha Hospital on 1st taken September blood pressure had shot up and after receiving discharge from the hospital he was produced before 2003 as his the Special Court and he was remanded to police custody for 14 days. In the cross-examination A1 stated thatwas not aware of date of his arrest when he was produced before the POTA Court on 2nd September he 2003. denied the suggestion of the Special P.P. that he was arrested by police on 1st September 2003. He has Thus considering the evidence of A1 in proper perceptive, it is difficult to digest his stand that he was not aware of of his arrest when he was produced before POTA Court. Needless to add that such evidence is apparently date given by him to support the afterthought stand taken at the trial of having not been arrested on 1st September arrested prior to the same. 2003 but was 187 conf.5.09 250. In the same context, the evidence of another defence witness Shri R. S. Sharma (DW 5) reveals that he serving as the Commissioner of Police of Mumbai during the period from 31st December 2002 till was 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. D76 a news paper report pertaining to the above press note. Significantly enough, after going through the is news Exh. D-76 he stated that he is unable to say whether the contents of the news item depict the item correct It has also come in the evidence of DW-5 Shri R. S. Sharma that press note dtd. 1st September events. 2003 D-107 is signed by IO Shri Walishetty. After going through Exh. D-107 it was stated by DW-5 that Exh. he is to state the exact date on which A1 and A3 were unable 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 September 2003. Thus, we find that as rightly observed by the trial Court neither news items Exh. D1st 76
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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 Court on 1st September 2003 and in the remand application A2 was shown arrested at 20.20 hrs. Special on August 2003 and A1 and his wife A3 Fehmida were shown arrested on 1 st September 2003 at 31st 03.00 Similarly, the remand order passed by the POTA Court, on the said day to which also our attention hours. was also supports her submission that as per the said order A2 had admitted before the Court that he drawn 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 on 31st August 2003 and A1 and A3 were arrested on the next day i.e. on 1st September 2003 arrested 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 said dates and illegally detained. the 253. In the premises aforesaid, it can be safely said that at trial, prosecution had duly established of A2 being on 31st August 2003 and A1 & A3 being arrested on 1st September 2003 and as such, there being arrested 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 accused also establishes nexus of A2 with gelatin and the other 190 of the said conf.5.09 articles such as alarm clock, detonator i.e. with the material of which nature was used for preparing crude for causing explosion at M.I.D.C., Seepz on 2nd December, 2002 and BEST bus at Ghatkopar on bomb 28th July, 2003. 255. Now with regard to prosecution evidence regarding earlier referred discovery and seizure allegedly made sequel to the statement made by A2 on two different occasions i.e. firstly statement made and as a recorded under memorandum panchanama Exh. P393 concluded by 21.05 hours and discovery and seizure panchanama concluded by 20.40 hours both drawn by PW97 PSI Wankoti and secondly statement made Exh. P393-A 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 counsel urged that taking into account the said features and the relevant evidence the same defence clearly to be artificial. It is was urged that the evidence pertaining to first memorandum and appears discovery reveals that A2 is then alleged to have made a statement regarding the remaining material panchanama frommaterial used for preparing the bomb and the place of concealment about the same and, the thereafter, having led the panchas and police to his house at Junad Gali 191 allegedly 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 a statement regarding showing of place at which he had prepared bomb along with his made companionsplanted in BEST bus on 2nd December, 2002 and 28th July, 2003 and, thereafter, allegedly which was having panchas and police to the house of A1 at Chimatpada Marol Andheri and from the said house led the the police has seized the material and so also the contraband materials from the loft as detailed in panchanama
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Exh. P394A. 256. The learned defence counsel assailed the aforesaid evidence by urging that it depicts an absurd position accused who was willing to make the statement regarding the bombs prepared or the material used that the for same or the place at which the same were prepared, had made the statement on two occasions. the According to the defence, the natural course is that the accused would disclose all matters on the first occasion itself. It urged that the accused making such a statement on two occasions and again before two different officers was 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 It was urged that in order to cover the said lacunae the explanation is advanced through the panchas. 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 that considering all these aspects it is apparent that in order to justify artificial claim of urged contraband material having been recovered as a sequel to the statement, leading to the discovery, made by A2, from his and so also from the house of A1. It was urged that in event of the loft in the house of A1 was used house for preparation of bombs then the culprits would have chosen to keep the remaining material at the said placewithout incurring any risk to shift the same to other place i.e. to the house of A1 or even in the event only 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 panchas and police to the said place. It was urged that in view of the same it was incumbent A2 had led uponprosecution to lead the evidence of the said witnesses for corroborating the assertion of the 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 submissionis more in the nature of drawing surmises rather than indicating the same being logical advanced inferences the same does not deserve any credence. 194 conf.5.09 and as such 259. After carefully considering the relevant evidence regarding the said memorandum discovery and seizure substance in the submission canvassed by learned APP that in spite of the cross examination core we find of prosecution evidence has remained unshaken, i.e., A2 having made such statements leading to the discovery led to the police at stated places and at the said places the police having seized the material and so and having also contraband material as detailed in seizure panchanama respectively Exhibit P-393A and Exhibit P394A recovered and seized by the police. We do not consider it improbable that the accused had made being 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 statement made by accused on both the said occasions though pertains to the bomb prepared, still fact the statement made on both the occasion are for different purpose. In that, on the first occasion under panchnama for the purposes of showing the place at which the remaining material used for preparation Exhibit P-393 of
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the bombs was kept; while on the second occasion for showing the place at which the bombs were prepared. reading of the evidence pertaining to the statement made by A2 on the respective occasion Thus, bare 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 to be circumstance for inferring that after making the said statement police and panchas had gone said there the knowledge of their being likelihood of recovery of contraband material even from the said with place. regard to the said features and the second statement being made during the course of interrogation Having by another officer also reinforces the events having occurred in stated manner as canvassed by the learned APP -ather than the same denoting no such events had occurred as canvassed by learned defence counsel. In r the context it can be further added that the stated events having occurred just after arrest of said accused/A2 his state of mind after his arrest, it is not possible to countenance that he ought to have considering disclosed all the matters pertaining to the bombs in the first statement itself. It is well known that different persons mayin different manner in the same situation. It can be further added that the second statement being act made the second interrogation made by different officer and the same strictly being for different purpose during and so connected with the acts committed by A1 and so also at the house of A1, the possibility of more A2 recollecting it at a later stage also cannot be ruled out. The same is the case regarding the submissionof culprits using two places 196 conf.5.09 canvassed 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 manner for a particular reason known to them. Thus, considering the totality of the evidence, it that 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 second event which had happened soon after occurrence of the first event; and the same being the 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 State of Madras reported in AIR 1957 SC 614, amongst other, that no plurality of witnesses .vs. The is necessary for establishing a facet established through the evidence of a reliable witness. It is, therefore, give any credence to the submission canvassed that in spite of mother and sisters being present difficult to in house of A2 during the course of recording of Exhibit P-393A it was necessary for the prosecution the 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 they had acted for both panchanamas or that during drawing of second panchanama, the Officer because had the constable to bring panchas does not by itself lead to an inference that artificial documents have asked been prepared. Needless to add that merely because explanation given by the panch witness that he had returned to police station due to having forgotten his mobile, being not recorded in panchanama by itself be the regarded as a feature leading to such inference and particularly after that evidence having remained unshattered in spite his of gruelling cross examination. 261. In the context of the article seized under the aforesaid seizure panchnama the learned defence counselthat evidence relating to the contraband of article and particularly the alleged urged explosive substance-gelatin sticks, detonators allegedly seized from the house of A2 under seizure panchanama Exhibit and from the house of A1 under seizure panchanama Exhibit P-394A does not reveal that P-393A the explosive substance or the sample thereof taken charge and sent to C.A. at the time of seizure was sealed by police. It was urged that the said circumstance being relied by the prosecution for showing 198 the conf.5.09
nexus of accused i.e. A1, A2 and A3 with the explosive substance and consequently with the bombs prepared for attempt to cause explosion in BEST Bus returning to Seepez M.I.D.C. Bus Depot and for and used causing in BEST Bus at Ghatkopar, it was essential for the prosecution to seal the said articles. It was explosion urged same could have only guaranteed that the samples of such articles seized from the said houses had that the reached the C.A. who had opined about the articles send to him by police were explosive substance. It was that absence of the seal upon the seized sample takes away the sanctity of prosecution case that the urged articles seized from the said house or the said article only in the same condition had reached C.A. It was urged absence of evidence establishing the relevant facet finding of a C.A. the article sent to him by that in the was explosive substance is inconsequential and as such the prosecution cannot be said to have police established that explosive substance were found in the house of A2 or in the A1. It was urged that the relevant also reveals that the gelatin sticks allegedly found in both the said houses were bearing evidence description 80 necl Hingni, Wardha". It was contended the said description duly indicated of the same "Noble gel 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 that too as 199 and 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, have established the nexus of A1, A2 and A3 with the said explosives. It was urged that alone, investigatingfailed to investigate in that behalf nor any evidence regarding the relevant aspect has agency had been adduced at the trial. It was urged that the same has not been deliberately made by the investigating agency so to falsely rope the charge sheeted accused in the present case. Hence, no conclusion of explosive substance as being found in possession of A1, A2 and A3 is warranted on the basis of prosecution evidence and as such deserves to be acquitted from the charges framed against them in that behalf. It was urged that the they samecast serious doubt about the involvement or nexus of A1, A2 and A3 with the incident of explosion also for which the trial has been held and even on that count benefit of doubt deserves to be given to the accused. It urged that the same argument would be equally applicable for the alleged discovery and recovery of was 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 being devoid of merit. It was urged that the contraband articles 200 conf.5.09 (explosive substance) about which grievance is tried to be made, the same could not have been sealed by a lac seal as the same could have been imminently dangerous without knowing precisely the nature using of said material or the temperature point for explosion of the same. Learned APP by making reference the to Rule No.8 of The Explosive Rules 1983 urged that the same shows the manner in which the explosive from the point of safety are required to be wrapped and kept. It was urged that the same substances 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 urged that practically the same method was followed while packing explosive contraband article was seized the samples taken from the and/or same. 263. The learned APP further urged that the grievance now tried to be made that the prosecution evidencepossibility of some other article being sent to C.A. for falsely roping the accused only on the denotes basis the said articles seized were not sealed, is an afterthought submission. It was urged that, that admittedly, evidence revealed that contraband articles were not sealed by using lac seal while the prosecution other seized during the said recovery were duly sealed by using lac seal. It was urged that their articles evidence that purposefully the explosive articles or the samples taken from the same 201 denotes 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 sealing the same. It was urged that the reason being apparent, - it was not necessary for the for not prosecution to give evidence regarding the same. Furthermore, in order to condemn the officer for such conduct or the
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same being for the purpose of tampering with the articles, it was necessary for the defence to put up such aase to the investigating officer/the officer who had seized the said articles. It was urged that no such case c was to the said officer(s) or to the panch witnesses. Hence, no cognizance of this grievance deserves to put be taken. It was urged that the the prosecution evidence unambigously indicates that immediately on the next day articles were sent to the C.A. It was urged that the evidence also indicates of there being no the manipulation need of time at the time of seizure, explosive articles were not sealed with the lac seal. and due to the The learned APP in the same context also placed reliance upon the decision in a case of Bilal Ahmed Kaloo .vs. of A.P. reported in (1997) 7 SCC 431 and paragraphs no.17, 19 and 20 for the same, of State 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 stage of the case that the revolver and the cartridges were tampered with by the police. Not even any auggestion was made to any witness in that direction. According to the counsel, since those articles were s 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 & Amirali in their treaty by name "Law of Evidence" 14th Edition, wherein on page -195 and Woodroffe 196 considering the difference of a proof in civil and criminal cases and particularly regarding the aspect while of test beyond reasonable doubt wherein it is the observed: "(m) .. .. (n) Test - "Beyond" reasonable doubt. Strictly speaking, the test of legal proof is not the absence of 203 conf.5.0 9 reasonable doubt, though that is often a convenient way of expressing what is meant by `proof'. The test is really the estimate which a prudent man makes of the probabilities, having regard to what must be his duty asresult of his estimate. In each case whether proof of the case for the prosecution or proof of the defence a set by the accused, it is the estimate of probabilities arrived at from this practical standpoint by a up prudent man. " 265. We have recited the aforesaid observation in view of misconception prevailing regarding the said test in criminal proceeding. At the cost of repetition we may add that by the said test exclusion of the 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 and the one which were immediately sent to C.A. on the next day as rightly pointed out by APP. Thus A1 in light of the observations made by the Apex Court in the decision relied by APP and the the factual submissions made by her regarding the said aspect including non-cross-examination of the relevant witnesses
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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 house of A1 and A3 and so also the house which was found in possession of A1. Purchase of i.e the Airtel Cards bearing SIM 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 and so also to the evidence of PW4 Anil Parmar owner of the shop by name Raj Electronics the same 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 asSalesman in Indu Commercial Corporation, Andheri West , retail distributor of sim-cards for a 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 along A1 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,by filling enrollment form Exh.P-280. It was urged that by the said evidence the prosecution Hyderabad has established that in similar manner said encountered accused along with A1 had been to the shop of also PW5purchased another prepaid sim-card having mobile no. 9892077831 by handing over copy of and driving and filling enrollment licence 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 taken panchas and Police to the shops of PW4 and PW5 at Marol, Andheri. It was urged that the Police had 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 of sim card by them i.e. PW4 sim-card having mobile no.9892451164 and PW5 Ashok Satra simsale card mobile no. 9892077831. The said evidence has also established that each of them had sold the having said to two persons who had been to the shop for purchasing the same and had identified A1 being one card of them and and PW4 and PW5 had identified on the basis of the photograph of Nasir that he was the other who had accompanied A1 and had purchased the said 206 person 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 said shop. It was urged that the prosecution through the evidence of PW1 has established that from the 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 certificate given by the said witness. It was urged that the said call records reveal that on with the 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 at 10.48.28 a.m. and second call was at 6.58.39 p.m. On 25th August, 2003 the outgoing call on was 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 reasonsin paragraph no. 195 and 196 and so also the admissions given by A1 during the crossstated examinationlearned APP when A1 has given the evidence in support of his defence, accepted the effected by said evidence. It was urged that the said evidence duly corroborates the evidence of PW1, PW2 and the matters in confession of A1 and A2 and so also the evidence of PW 28 Dilip Yagnik from whose STD Booth A2 the had a call to Dubai. It was thus urged that the said evidence establishes the offences for which trial given was conducted , were committed in pursuance to the conspiracy hatched, involvement of A1, A2 and Nasir in the conspiracy and themselves remaining in touch with each other by giving the calls on the said 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 unable to find any fault with the trial Court for accepting the said evidence and using the same as are aorroborative piece of evidence to the matters stated in the confessions as pointed. Further, the said c evidence with other evidence also establishes that at the nick of the time prior to occurrence of explosion considered 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 Azad Galli along with his wife A-3 and daughter in the taxi of PW 15 laden with a bag from containing ENCOUNTER INCIDENT-12th September, explosives. 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 Nasir at the time of his death. Finding of such articles with him is further relied by the prosecution said for corroborating the evidence of PW 2 approver and so also the evidence of the other witnesses mainly PW4 and from whose shops simcards were purchased by deceased Nasir along with accused no.1. The PW5 mobile of the simcard found on the person of Nasir is further relied by the prosecution for establishing numbers 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 college at Matunga for arresting Nasir required in connection with 209 Ruparel conf.5.09 blasts at Gateway of India and Zaveri Bazar. The same also reveals steps taken by them thereafter by PW 1nd other members of the said police a party.
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274. The evidence of PW 2 in paragraph no.2 reveals the events occurred after the said police party had been place of trap and particularly the events which had occurred thereafter as per the information to the received arrival of Maruti 800 car to the said spot. The said evidence in terms reveals the steps taken by about the the party for arresting Nasir and his associate had been in the said Maruti van and the events which had said led 1 and the other companion police officers to fire bullets at the offenders who had started firing at them PW in of the alarm given by the police for throwing away the weapons taken out by them. It reveals the spite manner the offenders were injured and taken to KEM hospital and PW 1 after receiving information of in which 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 spot being guarded by the police. The same also reveals that a bag was found in dicky of the said while one colour Maruti 800 car in which the said deceased persons had arrived at the spot and so also papers were blue found on the dashboard of the said car. The same also reveals of PW 1 having vouched for the matter stated in said FIR of which copy (Exhibit P-253A) is on the 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 a purse containing cash amount of Rs. 1182/-, credit card of ICICI Bank in the name of Ahmed reveals Abdul Rehman, one more of Citibank in the name of Atik-Ur-Rehman, two driving licences bearing the photograph the one bearing a name Abdul Rehman Aidid son of Aisha Sayyed Ali and another in the of Nasir and 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 Muslim Force were also found on his person. The evidence of PW 1 in next paragraph Revenge 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 in paragraph no.6 is more confined to the weapons which were found with deceased persons of PW 1 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 person. The further part of the examination in chief of PW 1 is confined to identification of the articles his 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 doesreveal any significant matter elicited therein to shatter the claim of PW 1 regarding occurrence of not such and particularly that Nasir was encountered and such articles were found on his person i.e. as events claimed 1. Even the case regarding the cross- examination effected on behalf of accused no.4 is no by PW different. the same in the earlier part amongst other matters except the conduct of PW 1 of not As during informing about occurrence of the incident to the Investigating Officers of Gateway of India and Zaveri Bazar, PW 1 not to tell the name of Constable from Shivaji Park Police Station stationed at the spot, himself able 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 the matter any further. Such a conclusion is inevitable, keeping in mind the explanation given by PW take 1. explanation appears to be plausible. In that, PW 1 having lodged the FIR regarding the incident That with Park Police Station and entry regarding bullet proof jacket being made by his superiors, himself Shivaji being by any superior officer to approach the Investigating Officer of blasts case for giving statement not told etc. 278. The perusal of the further part of said cross-examination reveals that during the same omissions of PW 1 hile lodging FIR having not specifically told that Nasir was wanted in Gateway of India, Zaveri w Bazar,
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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 in which the said incident had occurred and the events which had occurred the manner 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 of oath is liable to be discarded for any of the matter brought on record during the crosssanctity 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 upon the evidence of PW 1 who is a Police Officer and as he was bound to act as told to him by relying 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 reality had occurred or any documents as claimed were found on the person of in 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 by the deceased by going to the shop at which he/ they were working. It was also urged purchased that substantive evidence of PW1 only talks about sim card of Airtel company without disclosing number of said card or the mobile number which could have been easily ascertained by the police by giving call from sim 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 1 by itself is insufficient to establish deceased was Nasir or the sim card as alleged by the prosecution PW 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 recited the observations made by the Apex Court in the case of Vadivelu Thevar (supra). In light already of said observations, it would have been necessary for the prosecution to examine other witnesses the to corroborate PW 1, only in the event of his evidence being found to be that of a partly reliable witness
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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 a natural and reliable witness, it is difficult to accept the defence submission and/or insistence that is his evidence cannot be accepted without there being corroboration to his evidence by independent witness merely PW 1 is a police officer. The Apex Court has observed that presumption of honesty available to because 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 olice officer will not hold good. Needless to add that considering the reason for which PW 1 visited p the relevant spot nearby Ruparel College at Matunga upon receipt of an information and the events occurred at said spot, it cannot be said that he was an interested the witness. 282. Now considering the limited purpose for which the prosecution has adduced the evidence of PW 1 i.e. of the accused required in connection with the blast, could not be arrested due to the events which one 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 had tried to make mountain out of the mole regarding identity of the said deceased as being Nasir, defence we unable to see any substance in the same as hardly any evidence has surfaced on the record creating a are doubt mind of the said deceased being anybody else other than Nasir. The learned defence Counsel has in our alsobrought to our notice any evidence surfaced from record that the police investigating the crime, which not 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 any substance in the submission canvassed on the count of address or the names being not one and find the on the said documents. same 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 been produced in the present case and/or the said case ought to have been amalgamated and/or should have tried with the present case. The core issue involved in the crime registered with Shivaji Park Police Stationaltogether different i.e. whether any offences were committed during the said incident when being police upon information, had been to area of Ruparel College for nabbing accused Nasir than the party, 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.P254/Ahaving vouched for the correctness 217 and 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 doesrequire examination of another witness for establishing the same fact. Similarly PW5 during his not evidence,
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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 encountered person at the trial or at the photo identification parade for establishing that the encounteredNasir. At the cost of repetition, it can be added that without there existing any reason for person was 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 aase of Kartar Singh Vs. State of Punjab, reported in (1994) 3 Supreme Court Cases 569 and particularly c 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 method used by the investigating agency in the instant case to hold identification parade by means same, 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 present day when trick photographs are being taken. I see much force in this the submission." "361. If the evidence regarding the identification on the basis of a photograph is to be held to have the same as the evidence of a test identification parade, we feel that gross injustice to the detriment of the value persons may result. Therefore, we are inclined to strike down this provision and accordingly we strike suspected 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 Court and so also the aforesaid observations, we are unable to accept the aforesaid submission to Apex 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 of significant use for discarding the evidence collected in respect of a deceased person. It is obvious that a be 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 substance in the submission canvassed that the evidence of PW4, PW 5 and/or other witnesses would any 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 containing a sim card of Airtel company as deposed by him, were found with him, and the phone same considered along with other evidence establishes his nexus with A1. Efficacy of Evidence of PW2Approver 288. The glance at the evidence of PW2 reveals that during initial part he deposed about
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(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 Branch at Pakistan with name as Atique-Ur-Rehman on said credit card. and told that same was Karachi given by his friend in Pakistan when Nasir had been to Pakistan for undergoing training in preparation to him 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 3917 1259 of ICICI Bank Hyderabad branch with name mentioned as " Ahmed Sayyed Ali Aydee 9662 and up-to 2006. valid (v) Nasir also had driving license Art. 71 in the name of Abdul Rehman Ali Aydee and second driving license the name of Sayyed Ali Aydee and bearing his is in photographs. (vi) In June, 1999 himself having been to Dubai for job, got job in Alimco Trading Establishment and having as a Labourer for about four and half years in that establishment and having left Dubai on 1-10worked 2003. 289. It further reveals PW2 having deposed that (i) from Dubai he used to communicate with Nasir at Mumbai by his mobile phone having number 5451488 (ii) and at that time Nasir was having two on Mobile mobiles nos. with 9892451164 and 9892077831 (iii) STD Code of Dubai being 0097150 and India timing being ahead by about one and half hour than Dubai (iv) he became acquainted with Nasir in August 2000 in a Masjeed in Dubai and so also with timing. persons Hanif i.e. A1, his wife Femida A3, one Bilal, Samiulla, Rehman, Aabid, and by name Naeem (v) he had identified A1 and A2 accordingly in the court. He deposed that he had been to India in April 2002as asked by A1 at Dubai had handed over chocolate parcel to A2 at the 221 and 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 members of Lashkarwere EToiaba (ii) and he had joined Lashkar-E-Toiaba in the year 2001 because he wanted to take revenge of Godhra in Gujarat incident and (iii) to take revenge of atrocities on Muslims as were shown in CD's 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) CD's 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-EToiaba. (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 bomb blast incidents in city of to cause 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 28-72003, (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 Pakistani associates their (ii) as they had told that if bomb blast are caused in city of Mumbai which is visited by many foreigners and will affect economy of India and it will have impact to all over in world. 223 same 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, Samiulla, Bilal, Rehman, Abid, Naeem had told that incidents like unexploded bombs and small 2003, 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 25-82003. (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. With regard to incidents in present case PW2 deposed 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 were bomb blast incident in Taxi at both the places in Mumbai at Zaveri Bazar and Gateway of there 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 i.e. at about 6.05 or so in time) 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 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 women, children, aged persons of Hindus and Muslims. Bomb blast do not discriminate Hindus includes 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 he also came to know that police from Bandra Crime Branch had been for inquiry and then by him, (ii) after with elder brother he went to Bandra Crime Branch on 1-10-2003 at about 1.00 P.M. (iii) PW103 along made with him for about 2 hrs. and then allowed him to leave and called him again on the next day, inquiry and inquiry with him for about one and half hour. He deposed that thereafter he was arrested in respect made 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.
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298. The evidence of PW2 reveals that he was extensively cross examined on behalf of the accused practically of the aspects upon which he has deposed in examination-in-chief. The 227 upon each 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 organization, Nasir having gone to Pakistan for acquiring training in arms and ammunition of the said 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 for which he thought of taking the revenge and so also the claim staked by him regarding which the reasons he repenting about the offence occurred at his felt 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 each of the aspects about his cross examination and the replies given by him, it can be safely enlisting said careful scrutiny of his evidence do not reveal it had any effect of destroying the claim staked by that him during the examination-inchief. 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 hole, it is difficult to accept that his evidence will not inspire confidence due 229 w 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 being unable to find the same despite search taken in the house; this cross does not take the matter PW2 any further. He denied of having produced the bogus documents i.e. the documents which he was asked to producethe cross examination. It will not be out of place to state that after carefully considering the during reasons the trial Court the same cannot be faulted, for not accepting the defence criticism and accepting given by 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 in Dubai in August, 2002. It was urged that the entire evidence of PW2 is of hearsay nature as by was and the same talks about the matters allegedly told to him by absconding accused Nasir. It was urged that large his evidence hardly reveals any participation on his part for furthering the object of conspiracy apart from himself not staked claim of being party to the accused which has led to 230 having 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
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was urged that apart from his evidence not showing of himself being main perpetrator of the crime, the same not reveal that he was either main participant or even the perpetrator participant. Learned does counsel, by taking us through the evidence of PW2 tried to canvass that his evidence is either full thereafter, of inadmissible matters i.e. the matters told to him by Nasir or other associates. It was urged that his conduct the manner in which he become approver also appears to be suspicious. It was urged that the regarding same an impression that he has given the evidence at the behest of the investigating gives 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 more persons had conspired to commit an offence or an actionable wrong. It was urged that two or 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 done by conspirator in reference to common design". It must be of "reasonable ground to believe". said or The is not rigorous to the extent of establishing the fact of the accused persons having conspired together same 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 upon detail discussion regarding the said aspect at this stage, it can be safely said that occurrence embarking 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 ,BEST bus or Taxi , selection of place for causing such incident, nature of explosive material used such as for same i.e. gelatin or RDX for preparing the bomb and involvement of one or more accused out of A1, the A2 A3 i.e. A1 and A2 for MIDC incident, A1 and A2 in Ghatkopar incident, Nasir and A2 for Zaveri and 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 trial, it is difficult to accept that the totality of prosecution evidence was incapable of affording the reasonable believe that the accused were involved in the said incidents or that they had not conspired ground to together. thereof, the same it is difficult to accept the submission that evidence of PW2 is liable to be In view discarded same is hearsay due to main matters from the same was regarding matters told to him by Nasir because the or A1 . 304. Even considering the matter from another angle i.e. Nasir or A1 having told certain matters to PW2, evidence ordinarily would be hearsay within the meaning of the Evidence Act, as it is well known which 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 than the evidence in the shape of either confession of said two persons or the evidence regarding other the given by them. In the instant case Nasir being encountered, it would be fallacious to expect any same evidencesaid from source. 233 conf.5.09 305. We have already recited the observations of the Apex Court in a case of Vadivellu Thevar regarding the classification of the 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 event of witness is found to be partly reliable and partly unreliable. Having regard to the same , we in the find
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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 remained unshattered after searching examination, still there would be any need for prosecution having 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 for the same. The same principle will be also applicable for the evidence of approver. Needless any reason to that even provisions of Section 133 of the Evidence Act also does not 234 add 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 event such a corroboration is found to be necessary and similarly reasonably only in the possible. 307. Now considering the facts as spelt out from the evidence of PW2 given on the sanctity of oath in detail, observing the matter in T.V. clips after the blast and deaths of persons injured etc., the feeling that after of repentance being developed in his mind and thereafter he had returned to India and approached the police, that evidence having remained unshattered during the cross-examination and so also the attempt of entire defencethe same having failed from the reasonable answers received from him regarding every to test 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 criticism without any support for the same discerned from the evidence of either PW2 or that the said of PW103 Chief Investigating Officer to whom he had approached and thereafter became the approver. 308. The careful consideration of the evidence of PW2 does reveal that at the time of occurrence of blast he in Dubai. Similarly, considering the nature of his occupation and/or profession it is difficult to was perceivecould have played any role in procuring material for causing the blast. Furthermore, conspiracy that he 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 as well the plans hatched in the conspiracy, it is difficult to accept that he was not member of the object the conspiracy. It is now well settled that in the offence of conspiracy, it is not even necessary that said every conspirator knowing the other conspirators or the role to be performed by him. It is enough that the 236 conf.5.0 9 acts committed by them are designed to achieve the object of the conspiracy. Thus, merely because PW2 had committed any overt act for achieving the object of conspiracy i.e. the commission of blast, by not itself, not be enough to hold that he was not member of conspiracy or was roped in by the would 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 record urged that the said circumstances indicated that he was roped in by the prosecution and not on entire being cooked up for suiting the prosecution. After carefully considering the evidence surfaced on story the record and the aforesaid submission being based upon the recitals of the evidence of PW2 and PW 103 being
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not at all questioned regarding the relevant aspects that whether any steps were taken by him for securing of such an accused for the next day when he had claimed to be involved in such a serious crime presence and such facet being established on the record, we are unable to find any substance in the said criticism. as no We of the view that the evidence of PW 2 cannot be said to be shaken because PW 103 had not taken are any in that regard. Even the case regarding non production of the passport of PW 2 also cannot be said to steps 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 2. Furthermore, the further part of the cross examination also reveals that fact of PW 2 having PW 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 effect that he had been to Bandra Police Station without there being any message from PW 103, to the 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 after his production before the Court and giving a lame excuse that then he was not under immediately the from the co-accused and the omissions and contradictions recorded in paragraph no.33 urged threat that cumulative effect of all these shakes the sanctity of his claim and affords a reason to believe that he was a gotwitness. up 311. After carefully examining the answers given by PW 2 in the cross-examination, we find that there is no reason to doubt the 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 and the purpose for which he had been there, we find it difficult that he should have waited for Station 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 by and large the same are apparently in the nature of minor discrepancies, not fatal at to say that 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 real approver but made up approver for suiting the purpose of the prosecution. It was also urged the 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 atatement. He further urged that non- recording of the statement is a defect going to the root of grant of s pardon same has resulted in vitiating the trial. He further urged that at least the same will require and the discarding
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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 by PW103. In the said context she also placed reliance upon the decision in a case of Sardar Iqbal filed 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 that having regard to the same, it is abundantly clear that pardon was granted by the said Court urged which try the said case. It was urged that the said decisions squarely reveal that such a power springs from was to the provisions of Section 307 of the Code. She further urged that merely because the said case was to be tried by said Court, would not lead to the conclusion that the pardon was granted under the provisions of the Section the Code. Learned APP further urged 241 306 of 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 urged that none of the submissions canvassed on behalf of the defence will deserve any credence further nor trial is vitiated as urged nor the evidence of PW2 is liable to be discarded as the urged. 315. To consider these submissions, it will be necessary to take into account the provisions of the POTA and so also the Code 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 is specified. The glance at the same does not reveal any modification made to the provisions of grant Code of pardon as specified under Sections 306 to 309 of the Code. Having regard to the same and POTA Court the 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 the said case, the Apex Court while considering the powers of Special Court (Trial of APP. In Offences to Transactions in Securities) Act 1992 to accord the pardon after considering the provisions of Relating the Act and somewhat similar submissions as advanced in the present case pertaining to the provisions said 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 may be, after the prosecution is instituted or transferred before that Court. The width of the power of case 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 the prosecution for any offence shall be instituted only in the Special Court deserve a liberal and that 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
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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 Salve referring to Section 157 of the Code. Learned counsel submitted that the report under given by Mr. that section is required to be sent to a Magistrate empowered to take cognizance of offence. In relation to offence Act, the Magistrate has no power to take cognizance. That power is exclusively within the under the Special thus report under Section 157 of the Code will have to be sent to the Special Court though Court and 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 read as "Special Court" and likewise in respect of other provisions of the Code. If the expression be "Special read for the expression "Magistrate" everything will fall in line. This harmonious construction of Court" is 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 defined in the Act or the Code. For the purpose of the Act, it has a wider connotation and also includes not in the pre-trial stage as well. Section 9(2) makes the Special Court, a Court of Session by a fiction it by providing that the Special Court shall be deemed to be a Court of Session and shall have all the powers of a ourt of Session. In case, the Special Court is held not to have the dual capacity and powers both of C the Magistrate and the Court of Session, depending upon the stage of the case, there will be a complete hiatus. It also to be kept in view that the Special Court under the Act comprises of a High Court Judge and it is is aourt of exclusive jurisdiction in respect of any offence as provided in Section 3(2) which will c include under the Indian Penal Code, the Prevention of Corruption Act and other penal laws. It is only in offences the of inconsistency that the provisions of the Act would prevail as provided in Section 13 thereof. event Any interpretation will make the provision of the Act unworkable which could not be the intention of other the legislature. Section 9(2) does not exclude Sections 306 to 308 of the Code from the purview of the ct. This rather provides that the provisions of the Code shall apply to the proceedings before the Special section Court. The inconsistency seems to be only imaginary. There is nothing in the Act to show that Sections 306 to 308 intended to be excluded from the purview of the were 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 Act. Reference may also be made to section 4(2) of the Code which stipulates that the 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.5.0 9 "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 jurisdictionthe powers of such a court under the Code including those of Sections 306 to 308." and has all 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 ourt of original criminal jurisdiction, having dual capacity as explained in the decision in a case of C 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.Indian Kanoon - http://indiankanoon.org/doc/126463415/ 90
(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly in or privy to an offence to which this section applies, the Chief Judicial Magistrate or concerned a etropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and M the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender to such person on condition of his making a full and true disclosure of the whole of a pardon 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 conf.5.09 (2) This section applies to(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 sub- section (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 sub- section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in case,- (a) commit it for trial the (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 ardon on the same condition to such p person.
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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 post- cognizance 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 the provisions of Section 307 of the Code. The same also reveals that stipulation under Section under 306 is for the purposes of the pardon accorded under the provisions of said Section. No such stipulation (4)(a) is found for the pardon accorded under Section 307 of the Code. Similarly considering the aforesaid provisions the observations made in the decision in a case of Harshad Mehta, it can be safely said that in light of POTA Court was fully competent to accord the pardon after taking the cognizance of the offences to be Special tried said Court. In view of the same no fault can be found with such order passed by POTA Special by the Court, upon the prosecution application Exh.P dated 5th May, 2004 i.e. post-cognizance of the offences Mumbai 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 said case pardon was granted under Section 306 of the Code by learned Chief Judicial Magistrate in the much to committal of the said case, but the learned Chief Judicial Magistrate did not examine the prior approver committing of the said case. Similarly the reference in another decision in a case of A prior to 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 reasoningaforesaid. recorded 321. As narrated earlier learned APP has also placed reliance upon the decision in a case of Sardar Iqbal Singh for supporting the proposition that in the event of charge sheet being filed before Special Court, (supra) there be no need to record the statement of the approver accorded pardon thereafter. The perusal of the said would 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 the said judgment to the no.6 of 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 trial makes it difficult to accept the grievance tried to be made on such a 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 rejected. be
323. In the context of the necessity for corroboration or the nature of corroboration required , the learned APPrightly pointed out the observations made by the Apex Court in a case of Narayan Chetanram has Chaudhary Maharashtra reported in (2000) 8 Supreme Court Cases 457 after considering the earlier vs. State of decisions Court since the decision of the Privy Council in the case of Bhuboni Sahu v. R reported in of the Apex AIR PC 257, the Apex Court observed in paragraph no.37 to the 1949 effect: "37. For corroborative evidence the court must look at the broad spectrum of the approver's version and then out whether there is other evidence to corroborate and lend assurance to that version. The nature find and of such corroboration may depend upon the facts of different cases. Corroboration need not be in extent the of ocular testimony of witnesses and may even be in the form of circumstantial evidence. form Corroborative be independent and not vague on unreliable. Relying upon its earlier judgment in evidence must Suresh Bhari case this Court in Niranjan Singh v. State of Punjab held that once the evidence of the Chandra approver be trustworthy, it must be shown that the story given by approver so far as an accused is is held to 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 to the appreciation of the evidence, the Apex Court was pleased to observe in paragraph no. 42 to regard 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 from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and particulars not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory plays false and the sense of observation differ from person to person. The omissions in the sometimes 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 in which one of us was a party), dealing with discrepancies, contradictions and omissions held : Raj ( (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 that while narrating a particular incident there may occur minor discrepancies, such discrepancies would be in may render credential to the depositions. Parrot- like statements are disfavoured by the courts. In order law 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 which are not normal, and not expected of a normal those person."
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Referring to and relying upon the earlier judgments of this Court in State of U.P. .v. M.K.Anthony, TahsildarState of U.P., Appabhai v. State of Gujarat and Rammi v. State of M.P. this court in a recent Singh v. case Ram v. State of Haryana held : 'There are bound to be some discrepancies between the narrations Leela of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence same 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 to obliterate an otherwise acceptable ought not 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 are some who may come forward with courage, conviction and belief that the wrong should there 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 of evidence on the ground of his reaction not falling within a set pattern is unproductive and a a piece pedantic " exercise.' 252 conf.5.09 325. The aforesaid principles regarding the appreciation of evidence observed by the Apex Court were recited for the purpose of appreciating evidence of PW2 but also for using the same while appreciating not only 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 has cropped up in the record for discarding the same and/or not accepting the anything 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 there is no corroboration to the evidence of PW 2. As discussed earlier, the limited role which was that played 2 in the conspiracy to commit the blast at Mumbai i.e. hatched at Dubai by the members by PW of Lashkar-E-Taiba of which he was a member and considering the facts and circumstances of the present case, difficult to perceive that any more corroboration was necessary for accepting his evidence, it is especially mind observations of Apex Court in paragraph no.37 recited hereinabove from the decision keeping in 253 conf.5.0 9 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 has been found corroborated from the record of his disembarkation Ex.P267 and the at Dubai 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 evidence by the prosecution. Similarly, the matters spoken by him regarding the conspiracy and/or other the played of execution of a plan by A1, A2 and A3 are also found corroborated from the evidence led by role the prosecution in the shape of confession of all the said accused and fact of one incident of attempt to commit at M.I.D.C. Seepz and 3 incidents of explosion having occurred at Ghatkopar, Zaveri Bazar explosion 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
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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 acceptance of the said evidence amongst other establishes said matters which are recited said that 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 Card (Article 70b) of ICICI Bank, Hyderabad. It also reveals the reason for which PW 2 had and Credit 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 by him being members of terrorists' organization Lashkar-E-Taiba and the activities in which the referred 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 the present case is going on and the same being hatched at the house of Nasir at Dubai. It for which also establishes that plan of the same being executed by Nasir, A1, A2 and A3 and the material for the same being by Abid, their Pakistani associate. The same also reveals the reason because of which earlier plan supplied to commit blasts at Gujarat was changed and the blasts were committed at Mumbai. The same also establishes of the members of the said organization after failure of the incidents at Seepz and steps the reactions thereafter so also their reactions after achieving the success in committing the blasts at Zaveri Bazar, taken and 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 accordingly API Shri Phadake of DCB CID produced A1 before him in his office on 22-9-2003 day and at p.m. PW-88 deposed that thereafter he asked API Phadake and other police staff to leave his 5.00 office A1 alone in the chamber and thereafter door of the office was closed to ensure that nobody keeping 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
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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 explaining to A1 the legal consequences of his giving confession, he did not deviate from his after stand. gave 24 hours time to A1 to think over on the point of giving confession and he thereafter directed PW-88 Sr. of BKC Police Station to keep A1 in the lock-up of their police station under escort with a direction not PI 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. P506. 331. The evidence of PW-88 further reveals that as directed A1 was produced before him in his chamber at p.m. on 24-9-2003 by PSI Bhalerao attached to BKC Police Station. PW-88 asked PSI Bhalerao 2.30 and police staff to leave his chamber and thereafter himself and A1 remained in the chamber of PW-88. other He ensured that except himself and A1, there was no other person in his chamber. PW-88 then asked had 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 the same would be used as evidence against him and A1 said that he was aware about the same. PWsame, 88 deposed that after asking few more questions to A1, he was convinced that A1 wanted to make has the confession voluntarily and thereafter he recorded the confessional statement made by A1 as per his version.deposed that after the confession was recorded, the same was read over and explained to A1 by PW-88 him A1 admitted of same being as per his say. PW-88 thereafter put his signature below the confession of and A1 obtained his signature on each and every page and recorded certificate to the effect that A1 and voluntarily gave the confession. The evidence of PW-88 reveals that he had signed at 19 places and taken signature of the at 18 places on the second part of the confessional statement of A1 i.e. Exh. P-506-A. The evidence A1 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-506B 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 the confession to A1 and then A1 had told that the contents regarding hatching of the of Part-II conspiracy him, Nasir and Jahid in the house of Nasir at Dubai of committing terrorist acts in Mumbai in between were not stated by him before DCP. A1 has specifically stated that contents from page No.5 onwards starting withsentence "Mai september 2002 Bharat vapas aate samay......" till the sentence i.e. " lane me ek the under construction building ke compound mai taxi ghumakar rokane ko kaha" on page No. 15 were told by him to Vinod Lokande. A1 also told that last sentence on page no.15 starting from "maine building ke Shri bajuse jakar rickshawmese grey colour ki bag lekar meri bibi our betiyo ke sath taxi ke pas aaya" were not told by to PW-88. A1 further told all the contents of Part-II of his confession read over to 260 him conf.5.09 him on page No. 16 commencing with sentence "taxi driverne dicky kholi, maine dickyme bag (Khadi) rakhi" end of statement were recorded by DCP Shri Lokande as per his till the 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 The letter reveals A1 having expressed of not saying anything more and thereafter the original him. statement by Polcie was resealed by CMM and sent to the Special Court in a sealed cover along with the recorded said statement thereon recorded by CMM. Recording of Confession A2Arshad of
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 PW103 directing him to produce A2 in his office situated at Bandra- Kurla 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 questioned him about his family background and asked whether he was tortured by police and A2 and replied in negative. He also asked A2 whether police gave him threat or inducement or he was pressurized or allured the confession and A2 replied in negative. P.W. 88 deposed that he also asked A2 whether he to give was promised by police to make him approver and he gave reply in negative. He further deposed that upon making about the purpose of producing him before PW-88 , A2 answered that he had informed the I.O. that inquiry he wanted to give confession and therefore he was produced by I.O. before PW88. The evidence of PW88 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 tongueA2 i.e. In Hindi language and had read over and explained the same to him and thereafter PW-88 of the had signed the same and obtained signature of A2 thereon and directed Sr. P.I. of Bandra Police Station to keep the lock-up of the BKC Police Station and produce him at about 1.00 p.m. on 12-9-2003. It reveals A2 in 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 pressure, inducement, coercion, duress or threat for him to give confession and he replied in negative. any He deposed of again having explained A2 that it was not binding upon him to give the confession and if it was then it would be used as evidence against him and A2 said that he knew the above legal 263 given 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 and explained same to A2 and A2 confirmed that same was written as per his say. It further reveals over that
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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 along with API Dilip Kale of BKC Police Station with direction to produce A2 along with the same 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 was produced by API Dilip Kale before CMM at his residence on 12-09-2003 at 11.30 264 A2 conf.5.09 a.m. and A2 was asked whether he was having any complaint of ill- treatment 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 same technique. I then asked Hanif why he was doing so and Hanif replied that he is doing us the everything Kashmir. Pakistan wanted that he should explode bombs at various places in Mumbai so to liberate 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 givenwe would be arrested by police. Nasir then said that he was having associates in abroad who would then 265 conf.5.0 9 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 accordingly API Phadake and the staff members of DCB CID Unit No. IX produced A3 before her day and at p.m. on said day. It reveals that she asked API Phadake and police staff to leave her chamber 6.00 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 any manner and apprised A3 that she was no more in the custody of the DCB CID and she of the case in was in personal custody of PW-90. It reveals that PW-90 asked A3 whether she had any complaint taken against and A3 said ' No '.She further asked A3 reason of her production before her and A3 said that anybody since expressed willingness before IO to give the confession and therefore she was produced before her she had for recording her confession. PW90 then asked her reason of giving confession and A3 replied that she had seen bodies and injured persons on television after the bomb blast and therefor she had decided to make dead the confession. Her evidence reveals that she had explained to A3 that she was not bound to give the confession gives it , then same can be used in the Court as evidence against her. Thereafter A3 said that and if she she knowing said legal position and still she wanted to give the confession. 267 was 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 that she would be made approver and A3 told that no such promise was given to her. PWby anybody 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 Chembur Police Station and would be called back again on 24-9-2003. It reveals that A3 was also up of 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 confession of A3 in her handwriting in the language known to A3 i.e. Hindi language in question of the and answer form and then obtained signature of A3 on each and every page of the confession and Exh. P522 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 her on 24-9-2003 at 11.00 a.m. vide letter Exh. P-523. It further reveals that as there was no A3 before 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 ZoneVI,
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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 other staff members were asked to leave the chamber. PW-90 and A3 were the only two persons in and said chamber. It reveals that PW-90 then asked A3 whether the time granted to her for reflection was sufficient and replied that she needed no more time for reflection. It reveals that PW-90 specifically apprised A3 that A3 she not bound to make the confession and if she makes the 269 was 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 was not promised by anybody to make approver and she herself decided voluntarily to give she the confession. It reveals that Exh. P-525 is the copy of the written appraisal in Hindi language made by PW-90 to that she was not bound to give the confession and if same is given then it would be used as A3 evidenceher. PW-90 was confirm that A3 had decided to give the confession voluntarily and she against 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 Exh.- P-522A being the said confession. PW-90 deposed of thereafter having recorded at the bottom of Exh.-P-522-A to the effect that she was satisfied that A3 voluntarily certificate 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 of any force and inducement and it was true and correct. The said statement Exh.- P-625 is use bearing of A3. CMM had sent the confessional statement of A3 to Special Court under POTA vide signature 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 in chamber at about 11-20 a. m. and the contents of the confessional statement of 271 steno 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 first landmark exhaustive decision regarding provisions of TADA delivered in the case of Kartar Singh the v. State of Punjab reported in 1994(3) SCC p.569 reveals the test laid down by Hon'ble Apex Court regardingof acceptance of said evidence. The same is found in the observation made in para-264 of the said question 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
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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 evidence by the investigating agency. We find that no foundation has been laid by the defence said 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 recording of the respective have been fulfilled. In view of the same judging the said evidence upon the said test laid by Confessions 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 confession on the said count. In that, the material part of the said confessions of A1 and A2 entire 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 accusedconfession is recorded by the Police officer of high rank as permitted by the provisions of the whose Statute purpose behind the same being to provide an early opportunity to accused persons to give his and the 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 prosecution case of A1, A2 and A3 having made voluntary confession and the same was recorded by the 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. to understand how the defence submissions can be taken We fail forward. 274 conf.5.09 348. The learned defence counsel assailed the evidence in the nature of confession mainly on two grounds i.e. being violations of provisions of Section 32 (5) and Section 52 of POTA and as such the same there has rendered that evidence inadmissible and/or the same deserves to be left out of consideration. Having regard to same, it appears proper to have a look at the said provisions which read as under: the "32. Certain confessions made to police officers to be taken into consideration--(1) .......... ... (2) ............ ... (3) ............. ...
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(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 by telegram, telephone or by any other means 275 person 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 subsection 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 taken by them and on the contrary same gives reasonable apprehension of same being prepared by been the investigating officer. We are unable to agree with the said submission canvassed. Inasmuch as, confession of and A2 being recorded by same recording officer i.e. PW88 and the work to be effected by him for A1 the being of the same nature, the possibility of resemblance or repetition cannot lead to the conclusion same 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 not appear to be surprising. Further, considering the said questions asked one by one in each of asked does the
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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 cross-examination effected on behalf of the defence has not shaken the evidence of these and the witnesses the manner in which they have taken the proceedings, and/or the same also do not reveal regarding any answer elicited therein supporting the said submission canvassed on behalf of the defence. We are afraid, it is possible to accept the said submission or to come to the conclusion that recording of the said not 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 confessions as inadmissible and/or unacceptable for any meaningful purpose and as such the same said 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 before whom he is produced is to provide CJM an atmosphere in which he would feel free to make a complaint against the police, if he so wishes. The feeling will be free from the shackles of police custody after production in the Court will minimize, if that he 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 caveatThe strict enforcement of the provision as to judicial remand and the invalidation of confession here. merely ground of its noncompliance may present some practical difficulties at times. Situations may arise on the that after the confession is made by a person in custody, police custody may still be required for the even purpose of further investigation. Sending a person to judicial custody at that stage may retard the investigation. further steps to be taken by the investigator with the help of the Accused may brook no Sometimes, the 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 asking by the police. It shall be remembered that sending a person who has made the confession mere to judicial custody after he is produced before the CJM is the normal rule and this procedural safeguard should its due primacy. The CJM should be satisfied that it is absolutely necessary that the confession be given maker restored to police custody for any special reason. Such a course of sending him back to police custody shall be 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 may not make material difference to the further investigation. The CJM has a duty to consider days 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 that the noncompliance with the judicial custody requirement does not per-se vitiate of the view 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 to judicial custody. It was urged that the observations made in the last sentence itself reveals that the sent 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 cases of bomb blast then his confession in connection with said cases can not be said to be relevant three 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 case. She urged that the said accused thereafter having disclosed his involvement in other cases during said his confession is a feature indicating that the confession made by the said accused is voluntary. We find merit in said submission and absolutely no substance in the submission canvassed by learned counsel for A2 the in view of the decision of the Apex Court in the case of State of Gujarat vrs. Mohammed Atik and others, in JT 1998 (3) SC, page 60 wherein amongst other in paragraph no.6 it is observed that : "Para. 6 reported : hen there is no W 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 utilized for the matters disclosed therein regarding his involvement in the crimes registered cannot be 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 in the said four incidents being committed for achieving the object of the conspiracy hatched at committed 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 effect that A2 was produced before C.M.M. She urged that since the investigation in respect of the the case incomplete and he wanted to go to the root of the conspiracy and to verify the volume of the was conspiracy, he therefore 282 conf.5.09 needed further custody of A2. She urged that A1 to A3 after production before POTA Court were then already remanded till 26-09-2003. Special Court considering grounds put forth by IO for making further investigation granted the request of the IO for extension of police custody. IO wanted to take further of the offence steps the help of the Accused pertaining to the contents of the confession and therefore application of the with IO seeking extension of the PC of the Accused was bona fide considering the need and urgency involved for in matter. The Special Court had granted further police custody to Accused No. 2 till 26-09-2003. This the 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 the reasoning given by the trial Court and so also any substance in the grievance made on behalf of with A2. 354. Similar grievance was made by learned counsel for A1 and A3. In that, after their (A 1 & 3) production they were not sent to the judicial custody and thereby breach of sec. 32(5) of POTA, 2002 before CMM had occurred. By pointing the record, learned APP urged that recording of confession of A3 was complete at 18.45 on hrs. 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 day Special Court had remanded her to judicial custody. She urged thus at the maximum there was next delay day in remanding her to the judicial custody. She urged up-till the said date i.e. up-till 26.9.2003 of one she already remanded to police custody earlier by the Special Court. Similarly with regard to A1 by was 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 confessionfor marginal period. Learned APP further contended that hardly any grievance was made by CMM before Court or even before CMM in respect of non-compliance of requirement of Section 32 (5) of POTA POTA. She urged that thus no material is pointed out on behalf of the defence that the said partial noncompliance oblique purpose and there being substantial compliance of the 284 was for any 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
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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 as the violation of the requirements of sub-Sections (2) to (5) of Section 32. As already footing 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 of Section 32 itself and their observance is so vital that the breach thereof will normally result fabric 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 or discard the confession. To this extent they play a role vis-a-vis the confessions recorded under upon Section they are not as clinching as the provisions contained in sub-Sections (2) to (5) of Section 32, but 32." She has urged that the said observation makes it amply clear that violation, if any, of the said safeguards by would not warrant discarding of the confession made by the concerned accused. She urged that itself 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 furtherthat the evidence of PW 103 in terms reveal that substantial compliance of the said provisions was urged made investigating agency and as such even if there is some minor lapse on account of the same, by the 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, that after taking into consideration all the relevant aspects tried to be agitated before trial Court, urged trial had not accepted the submission of violation of the provisions of Section 52 of the POTA Act. Court She further urged that the evidence of Chief Investigating Officer clearly indicates that necessary instructions were by him for following the procedure upon the lines as provided u/S. 52 of POTA Act. She further given urged said directions being complied in spirit, some minor lapse on part of the subordinate officer cannot that the be to be fatal to the prosecution as the said evidence also indicates that there was no intentional said 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 A2, after his arrest at about 0820 hrs. on 31st August 2003 and making a statement leading to when a iscovery, d 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 in the said house and as such they cannot be said to be not aware regarding the arrest of the accused. present 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 A1, his wife A3, their daughter Farin and another small girl of 5 years were present in the said of A1, house. The evidence of PW 98 in paragraph no.8 also reveals of having then told A1 and A3 of they were being in connection with C.R.No.75/03 in bomb blast occurred in a BEST bus. It further reveals of PW arrested 98 having disclosed his intent to take search of the house and offered his personal search. Somewhat similar is found from panchanama Exh.P-393. As pointed out by the learned APP, the evidence of PW 103 position 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 He deposed of having informed A2 to engage Advocate of his choice. However he refused to of A2. engage any lawyer at that stage. His further evidence reveals of having informed PI Savde to contact the relatives of and inform them about arrest of A2. He further deposed that accordingly PI Savde contacted relatives A2 of and informed them about the arrest. Somewhat similar position is also seen from the evidence of PW A2 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 Sayyed Mohd. Hanif, his wife Fehmida and daughter Fareen. They all by namely 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 No.1 and 2 on the second at Sr. bench.)" 289 conf.5.09 357. Now considering the aforesaid evidence and the compliances as stipulated by Section 52 of the POTA purpose behind stipulating such compliances, we find it difficult to accept the criticism of failure and the 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 Counseldefence also tried to urge that Chief Investigating Officer has also observed of having not made for the entry relevant passage in case diary/station diary also reveals that his evidence in that regard is of the 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 the evidence of confession is liable to be discarded as the contemporaneous documents prepared soon same, after the arrest of respective accused persons do reveal the facts as pointed out by learned APP. In view of the
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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 also do not reveal any dispute being made by them regarding their date of Court 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 wherein in para-14 the Hon'ble Apex Court amongst other has observed:- "14. The next question SC 66 is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a erson, who has perpetrated it, is usually the outcome of penitence and remorse and in normal p circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at form 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 canno absolute rule that a retracted confession cannot be acted upon unless the same is corroborated be materially. It was laid down in certain cases one such being In re Kesava Pillai ILR 53 Mad 160: (AIR 1929 837) (B) that if the reasons given by an accused person for retracting a confession are on the face of Mad them the confession may be acted upon as it stands and without any corroboration. But the view taken by false, this on more occasions than one is that as a matter of prudence and caution which has sanctified court 291 conf.5.0 9 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 tally with what is contained in the confession. In this connection it would be profitable to contrast would aetracted confession with the evidence of an approver or an accomplice. Though u/s.133 of the Evidence Act r aonviction is not illegal merely because it proceeds on the uncorroborated testimony of witnesses, c illustration lays down that a court may presume that an accomplice is unworthy of credit unless he (b) to S. 114 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 on a better footing, one need only find out when there is a retraction whether the earlier who stands statement, the result of remorse, repentance and contrition, was voluntary and true or not and it is with which was that that corroboration is sought for. Not frequently one is apt to fall in error in equating the object retracted with the evidence of an accomplice and, therefore, it is advisable to clearly understand confession 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 accomplice's 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 Hon'ble Apex Court has similarly observed : "In law it is always open to the Court to convict an accused on his confession itself he has though 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 Hon'ble Apex Court in Kehar v. State (Delhi Administration), AIR 1988 SC 1883 : (1989 Cr.LJ Singh 1). 361. Now considering the aspect of retraction of the confession made by A1, A2 and A3 in the light of the guidelines, we find force in the submission of the learned APP that all the said decisions relate to said 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 angle, learned APP was very much right in submitting that in view of the provisions of Section 32 said (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 provisions of the TADA and/or all the laws legislated for preventing terrorists activities. Similarly we the also force in her submission that at such first available opportunity concerned accused having failed to make find a rievance about his confession being not voluntary and being outcome of other things such as g coercion, torture, etc., such an accused later on retracting his confession by itself would be indicative of pressure, the being afterthought decision taken by the said accused for wriggling out of the situation created same against to having made voluntary confession earlier. The learned APP further urged that this is him due precisely happened in the present case. what has 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. 30-8-2003 and they had thrown all the household 294 on 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 them to act as per their direction. After some days A3 was taken twice in the office of DCP where forcing her signature was taken on some papers. It is further mentioned in the retraction Exh.-D-8 that she was threatened of Bandra Crime Branch that her son and daughters would also be involved in bomb blast case in the office if refused to make signatures on the papers. she
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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 contrary, she had affirmed the contents of her confession. This leads to no other conclusion that the the contents of retraction Exh.-D-8 are afterthought version of A3 made on the basis of legal advise after about months from the date of recording of her confession. Obviously, it is done only with a view to seven resile her earlier confession and create doubt about the prosecution story. 295 from conf.5.09 364. It is further submitted that the minor daughter of A1 who was subsequently discharged, was also arrested alongwith A1 and his wife. The minor daughter of A1 was arrested by DCB CID with an by police ulterior to put pressure upon A1 so that he can give confession as desired by the I. O. Therefore, so motive called confession of A1 cannot be considered as his voluntary statement. 364.1 The trial Court has rightly dealt withsubmission being devoid of any merit. For, A1, along with his wife A3 and his both the daughters this 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. was required to arrest her. However later on no further material showing her nexus with Hence I.O. the offence of commission of terrorist act being found, she was discharged as per sec. 169 of Cr.P.C. 364.2 We already dealt about A1 having admitted the substantial matters from the confession made by him have after his production before CMM. It is significant to note that on the second occasion, the A1 only disputed some sentences in his confession saying that those were not stated by him. We have already dealt with of the 296 conf.5.0 9 the same earlier. A1 having not retracted his entire confession at the earliest opportunity made available to before CMM; and having failed to assert before CMM that he was under pressure because of the arrest him of minor daughter and constrained to give the confession as desired by the police, but having stated that his 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 1-4-2004 to the Court and as such no reliance should be placed upon his purported confession. We find dtd. 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 1-42004, by A1, retracting the confession on the assertion that after returning to home at 8.00 p.m. on 30-8made 2003 the Mosque, he had found police engaged in search 297 from conf.5.09 of his house and instead of disclosing reason for the same asked by him, they had handcuffed him and takenalong with his wife and daughters to the office of Bandra Crime Branch alongwith them and him questionedGateway of India and Zaveri Bazar blasts and had assaulted them and thereafter Mr. Rakesh about the 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 he was taken before DCP Shri Lokhande who copied one typed matter in Hindi and had asked A1 to day signsame and then he was also told that his daughter would be released only after signing the papers the whichalready written and hence he had signed upon the confessional statement, etc. However, the trial were Court that said belated retraction does not deserve any credence. found
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367. We are unable to find any fault with the reasons recorded by the trial Court in paragraph nos.160 to 162 Judgment under consideration as the same are in consonance with the record. The trial Court has of the rightly out that the matters stated in said application 298 pointed 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. of Cr.P.C. The trial Court has duly taken into consideration that retraction was made by A1 after period 313 of about 6 months. The trial Court has also duly taken into consideration that A1 who had examined himself on as DW 4, has not uttered about his grievance of A3 being slapped by Rakesh Maria as alleged in oath said application Exh.D-7 and so also many significant matters as culled out by trial Court in paragraph no.161. The Court has also duly taken into consideration that no complaint was made by A1 before POTA trial Court. regard to all these aspects, we are unable to find any fault with such a finding arrived by the Having trial It is further significant to note that trial Court, during the reasoning given in paragraph no.162, Court. had, amongst other, observed about the incident of interference made by A2 when A1 was answering the questions by Spl.P.P. He had admitted in his cross-examination that he was read over his put to him confessional 24-9-2003 by Chief Metropolitan Magistrate and the disputed portion in his confession statement date was by CMM and thereafter his statement was recorded by CMM which bears his signature; by telling noted 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 said objectionable conduct had restrained A1 from disclosing the true facts before the his 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 remained unshattered, is found supported by contemporaneous record made by him at the time having of recording the confession. The same also bears certificate given by him below the confession of PW 88 being that A1 had made the said confession voluntarily. His evidence also reveals compliance of satisfied the procedural safeguards. The matters pertaining to the Gateway of India incident from the said confession are found corroborated from the evidence of PW 15. Having regard to the same, we find it difficult to also find fault with the finding arrived by the trial Court in paragraph no. 163 of Judgment under any 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.5.0 9 that the timings were in respect of A2 and not in respect of A1. It was tried to be urged that such answer was by PW 88 after getting a clue/prompting from the Spl. P.P. and hence evidence of PW 88 deserves to given be discarded. The Ld. Spl.P.P., by drawing attention to the reasoning given by the trial Court regarding the said in paragraph no.165 of the Judgment under consideration, stated that for the reasons recorded aspect therein, Court had rightly discarded the said submission and no fault can be found with the same. the trial After carefully considering the evidence of PW 88 and the same revealing the position as pointed out by the trial in the said paragraph i.e. the mistake occurred while giving the answers to the questions asked due Court to misunderstanding of the same witness also having recorded confession of A2, was corrected by PW 88 and deposition not revealing any circumstance that the same was corrected due to prompting made by the 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 ruled out due to PW 88 having recorded confession of two accused i.e. A1 and A2. We have cannot be 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 for not giving credence to the said submission. Without dilating in detail about the said aspect, aspect or we observe that deposition of PW 88 does not reveal that substantial compliance of procedure stipulated only for recording confession u/S. 32 of POTA was not followed. 371. With regard to the grievance made by the learned Counsel for the A1 that in spite of the provisions in Section 32 of POTA, there was no bar for recording of confession of A1 by the contained Judicial u/S. 164 of Cr.P.C. even though there was an opportunity for the Investigating Officer to get Magistrate 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 outcome of unfair procedure adopted by the investigating agency, we find that the said submission being was rejected by the trial Court. Assuming that two modes of recording confession are available under rightly law recording a confession of an accused involved in offence under POTA, merely because confession is for got recorded by one of those modes, by itself, would not lead to the conclusion that the confession was not voluntarily made- unless cogent material to substantiate that the method adopted was for oblique purpose. No evidence has surfaced on the record. Needless to add that hardly any material has been brought to such our notice indicating that recording of confession by the designated police officer was opted by the investigatingextracting the confession or with some sinister motive. Apart from the same, as agency for discussed even the method adopted was after compliance of all procedural guards for checking the mischief aforesaid, to played, if any, and the evidence adduced does not indicate that the procedural guards contained in the be 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 reveals that after recording the confession, A1 was produced within 24 hours before Chief also 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 by A1 and counter signed by CMM. A1 had also not made any complaint of torture/coercion signed or inducement before CMM at the hands of police. The record also reveals that A1 was remanded to judicial on 26-9-2003 by POTA Court. Having regard to the said factors, we do not find any fault with custody the Court relying upon the said confession and acting on the trial same. 373. Having found no merit in the defence submission canvassed for discarding the confession of A1, A2 and and found that learned APP has rightly submitted that confession of each of the said accused A3 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
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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 where he worked till 1984 helper, 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 as electrician in Dubai and after completing contract for two years, he returned to India in the working month of September-2002. Since the month of October-2002 he is earning by plying the auto-rickshaw on hire bearing No. MH-02-H2899 which is owned by his brother-inlaw. (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 at Dubai for taking meal. Thereafter Pak associates of A1 motivated A1, PW2 and Nasir accused Nasir for doing terrorist acts by exploding bombs at various places in India for taking revenge of Godhra incident. Thereafter PW2 and encountered responded that they were ready to act accordingly for which they needed necessary funds and accused Nasir explosives. Safakat and Abid said them not to worry for funds and explosives. They promised to provide things above 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 August2002. (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 20 days encountered accused Nasir again contacted A1 and both planned of exploding time bombs in to taxi, Bus and trains in Mumbai so as to cause panic in the minds of the peoples as was conspired in Best 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 Pointing out the bomb kept in the cloth bag, A1 said to A2 that he would have to keep the said bomb A1. in Best Bus of route No. 312 at the SEEPZ Depot. A1 and A2 thereafter left the house at 5.15 p.m. along with the cloth bag containing bomb so as to the same in the Best Bus of route No. 312 at SEEPZ Depot. After waiting on the Best Bus stop, Best keep Bus entered in the depot and then A2 with cloth bag in his hand boarded the bus of 312 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 was found in the Best Bus of route bomb 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 A1 and encountered accused Nasir had 2003
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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 loft of his house. At that on the 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 house of A1 and all the three persons planned to cause terrorist acts in Mumbai in the 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. purchased the SIM card of Airtel in the name of Habib Omar and it was bearing Nasir 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 their A3 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 cause explosion of bomb in Zaveri Bazar at about 1.00 p.m.on 25-8-2003. As per the above plan A1, to his A3 and their both the daughters hired the same taxi from Andheri and airbag containing the time wife 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 driver to park the taxi in "pay and park site" in front of Hotel Taj and keep waiting in the taxi till the taxi their Thereafter A1 and his family members left the spot and then A1 contacted Nasir on his mobile arrival. 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 reveal A1 being party to the conspiracy to commit terrorists act in India by exploding bombs in terms for taking revenge for alleged atrocities committed upon the Muslims after Godhra incident. The same reveals had joined the said conspiracy in the month of August 2002 at the house of encountered accused that he 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 the said matters which 309 repeating 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. involvement of A1 in preparation of bombs along with his companions in his house on Thus, the 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 disclosed from the said material. It also reveals his involvement in a plan to cause explosion at is also Zaveri It also reveals his involvement and/or receipt of a mobile card purchased in the name of Habib Bazar. Omar for utilizing the same for contacting with co- conspirator. 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 work of hand embroidery. In the year 310 doing 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 coming to home he was informed by his family members that A1 gave his contact number but after 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 bag and then A2 and A1 went towards SEEPZ BEST Bus Depot for keeping the cloth 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 using 44 gelatine sticks and detonators they 311 by 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 They had obtained ticket for Asalfa, but they got down at Marol Pipe line Bus Stop. On the next seat. day, read in newspaper that two persons were died and 52 became injured in the incident of bomb blast they 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 and their both the daughters and Nasir. Nasir told him that they were going towards Gateway of India wife 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 he along with encountered accused Nasir went to Zaveri Bazar at 4.00 p.m. that on 24-08-2003 and encountered accused Nasir selected the place of planting the bomb in a taxi and that place in Zaveri Bazar was 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 therein as 1.00 p.m. Thereafter 15 minutes A1 along with his wife A3 and two daughters came there fixed in autorickshaw. They took one gray colour air bag from the van and thereafter A1 and his family members left spot. A2 and encountered accused Nasir took out sky blue colour nylon bag from the 312 the 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 person to whom the bag was to be given did not come there. He said the taxi driver that he would the come within short time as he wanted back 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 on 31-08-2003. Galli " 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 trial. Even accepting that confession recorded under Section 32 (1) of POTA being admissible at the the trial against the confessor, the said material in terms reveal A2, his association with PW2 since only schoolingmanner in which and the reason for which he was required to come from Surat to Mumbai, how days, the he decided along with PW2 to take the revenge and how he became acquainted with A1 and active role played by in planting bomb in Best Bus which however did not explode; his involvement in preparation of bomb him on loft of the house of A1, the planting of bomb in Best bus by boarding at Andheri along with A3, the 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 mattersare highlighted aforesaid, it can be said that the same in terms reveals the manner in which 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, said material is in consonance with the prosecution case against him at the all 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 Chawl, Chimat Pada, Andheri (East), Mumbai since last ten years. Her husband Salim Mohd.
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Hanif (A1) is electrician and he is also earning by driving rickshaw. She said that her marriage took place within 1984. After the marriage, A1 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 PW2. 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 along with one big envelope and, thereafter, A1 and encountered accused Nasir went 314 of A1 conf.5.09 on loft of the house. Thereafter half an hour A2 came there and then A1, A2 and encountered ccused Nasir left house and returned home at 7.00 p.m. After watching the news on T.V. at 10.00 p.m. they came to the knowpolice got one parcel of bomb in BEST bus and then A1 became that 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 daughters of A1 that Hindu people the 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 route No.340 and A3 should accompany him in the above bus. As per the plan A2 and A3 bus of went towards Andheri Station by rickshaw and at about 7.00 p.m. planted a bomb in BEST bus of route No. 340 the last seat of the bus and obtained two tickets for Asalpha from the conductor, but both got down below 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 someencountered accused Nasir days returned from Hyderabad at night in the house of A1 and he was possessing 4-5 bags. All those bags were by encountered accused Nasir on the loft of her house. On the next day A2 came to the house of kept A3. closed the door and discussed the plan of They 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.5.0 9 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
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and Sakira and encountered accused Nasir hired a taxi saying taxi driver that they wanted to see the tourist in Mumbai. On 24-8-2003 they fixed the spot where bomb was to be exploded at Gateway of places 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 family members were asked his 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 the said persons came to Andheri in the same taxi and asked taxi driver to come on the next day Hotel, all to to Colaba. go (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 at about 8.30 a.m. After having a cup of tea A2 and encountered accused Nasir left her house. A3, house her husband and their two daughters went towards a lane of Rubi Coach Co. where encountered accused Nasir were found standing with one Maruti car. Encountered accused Nasir took out one and A1 bag from red colour Maruti car and handed over it to A1 and the said bag was placed by A1 in auto-rickshaw. A1 his family members including wife and 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 12.35 hrs. and, therefore, A1 asked taxi driver not to waste the time and park the taxi in pay and it was 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 Rs. 2000. When A1 was in the house gave on
1-9-2003 police came there and arrested A1, A3 and their both the daughters. A2 accompanied the police. took search of her house and they found Police 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 32 (1) of POTA being admissible at a trial only against the confessor, the said 317 Section 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 co- accused at the instance of her husband A1. Amongst others, the said material movements of A1, A2 and Nasir in the evening of 2.12.2002 on the loft of her house and reveals themselves the same half an hour prior to 7 pm and having returned by 7 pm. It also reveals a parcel having left being Nasir in her house on loft in month of July 2003. It further reveals how she was dragged in kept by 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 in Best Bus Route No.340. It also reveals the plan being hatched in her house for committing the bomb bombat Mumbadevi and Gateway of India including active role played by her in making reconnaissances blast in selecting the place for commission of blast at Gateway of India and active role played by her on the next day with co-conspirators. It also reveals in detail her movements and so also that of co-conspirators on along 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 made by them deserving no credence and/or the same being made by each of them for respectively oblique and/or with sinister motive, the truthfullness of the matter stated in the said confession is assured purpose by corroboration to the same received by independent evidence. Now with regard to nature of the corroboration required for retracted confession for accepting and acting upon the same, the Apex Court in the decision in the of Sarwan Singh (supra) has ruled that amount of corroboration necessary would always be a question case of to be determined in light of circumstances of each case. In the decision in the case of fact Subramania Goundan (supra), it is ruled that general corroboration is sufficient for accepting the retracted confession and corroboration in the nature of material particulars as required for the evidence of approver is the 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 to the corroboration afforded from the evidence of PW2, in relation to the matters stated in the advert 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 the evidence pertaining to purchase of Sim-card by A1 and Nasir from the shop of PW 4 and PW 5, also and evidence pertaining to use of the said Sim-card by A1 and the co-conspirator for communicating with each at the nick of the time of the concerned incidents as revealed from the confession of A1 and A2 so other also
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of A3. Having regard to the corroboration received to the relevant matters in the confession, we do not find fault on the part of the trial Court in placing reliance upon the said confessions and acting upon the any 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 seat in BEST bus no. MH-01-H-8765 of route No.336 near Seepz Bus Depot, MIDC, Andheri rear (East), at about 21:40 hrs. the officers of MIDC Police Station, panchas and Bomb Detection Mumbai 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 by means of wires and alarm clock was seen kept in said cloth bag. The panchnama (Exh.P-407) of made said was drawn by PSI Diwakar Sawant in presence of panchas Michel Francis D'souza (PW 56) and event 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 day. The parts of the bomb and other material consisting 14 gelatin sticks, one detonator, one battery, next one clock, one black washer, one electric button, pieces of sutali and plastic rope and other articles were alarm seized by PSI Diwakar Sawant in presence of panchas Shri Ramsurat Shukla (PW 57) and Gopinath 321 conf.5.0 9 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 vide C.R. No.157 of CID 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 Name Page No. Particulars No . 55 Sanjay Patil 2012- Bus Conductor. (Complainant) Part II 56 Michal Francis 2022- Security officer of D'souza (Panch) Part II BEST, in his presence live bomb was removed from BEST bus by P.W.58 at Seepz Bus Depot. 57 Ramsurat Shukla 2027- In his presence (Panch) Part II residues of defused bomb taken charge.
58 Girish Gode (PSI 2035- Removed the live attached to Bomb Part II bomb from the BEST Detection and at Seepz Bus Disposal Squad) Depot. Bus 59 Sudhir Surve 2037- Conducted T.I. Parade (Special Executive Part II for A1 and A2. Officer) 322 conf.5.09 60 Manoj Patil 2053- He was traveling in (Eye-witness) Part II BEST Bus, identified Disbelieved by Trial No.1 & 2. Court accused 61 Shankar Rewadekar 2057- Assigned work to (Starter- duty to Part II conductor at Seepz Bus assign work to Depot. BEST conductor) 62 Dilip Masaram (Bus 2061- BEST Bus Conductor conductor hostile) Part II (Hostile) 63 Tanaji Jadhav 2063- Registered FIR and (API, MIDC Police Part II drew spot panchanama. Station) 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 the same was planted in BEST bus bearing registration No. MH-01-H-8765 for route no. 336 and that 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 said aspect. 323 with the 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 the aforesaid incident and so also the role as played by them, we do not propose to discuss threadbare the with evidence of other prosecution witnesses not mainly connected with the said aspect. However, necessary to evidence of said witnesses mentioned in the table hereinabove is made for appreciating reference 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 evidence reveals that on the relevant day i.e. on 2nd December, 2002 after finishing his work part of his 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 the bus. He deposed that two persons ahead of him in queue were chit-chating and he requested boarding them to proceed further. One of them turned towards PW60 and said that if he was in hurry then he should hire aab-taxi. The said person handed over a bag to other person. He started talking secretly with other person c to whom he had given the bag, therefore, he was disturbed. PW60 requested both of them to proceed further
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early. The person holding the bag boarded the bus. The other person who had given the said bag, stood as it is did not board the bus. PW60 pushed the said person aside. PW60 asked the said person that if he does not and want to board the bus, then why he was standing there. The said person did not board the bus. PW60 further that after boarding the bus, he found that said person holding the bag had occupied rear left side seat deposed in the bus. He got seat besides that person and obtained ticket of Kalina from conductor. There occurred in between the person holding the bag and conductor regarding change of money. PW60 altercation 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 PW60 remembered the altercation occurred with the person while boarding bus Route no.312. no.312. He on his own proceeded to M.I.D.C. Police Station and informed about the said incident. Police then 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 besides him in the bus and identified A2 as the said person. Similarly he identified A1 as the sitting person not boarded the bus and who had shouted at him. PW60 also deposed of having identified A1 and who had A2 8th December, 2003 at Arthur Road Jail in test identification parade out of 14 persons standing in a on row two panch witnesses and one Special Executive Officer at the said and 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 outside the queue, himself preferring to sit near rear side door of the bus, many persons being standing behind the queue on the relevant day, age of 4 to 5 persons standing in the bus and himself being not aware him in of registration of the said bus and on the said day having not travelled by the bus Route no.336 the and insignificant omission of having not stated in his statement recorded by the police that bag of unexplodedfound in the bus for Route no.312, hardly any significant thing has been elicited during the bomb was cross examination affecting the core of his testimony. During the same, it also brought on the record that the bus on which he was standing was meant for Route no.312 only. Similarly, the details about the stop 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 A2 had occurred on the said day in the bus. He also denied that A1 and A2 were shown to him in and Crime Office at Powai. He also denied of having been shown photographs of A2 in the newspaper with Branch 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 andwas given a bag by A1 and about the altercations occurred with PW60 and conductor have been he shattered in any manner. Thus, upon fair scanning of the evidence of PW60, it has established the said relevant factsparticularly A1 and A2 being vitally concerned with the said bag which was brought in the said bus on and 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 bearing registration no. MH-01-H-8765 was for Route no.312 and was allowed to proceed at about bus 5.28
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pm. It reveals that one Masaram (PW62) was Conductor and one Khupse was Driver on duty for the said bus. said bus had returned at about 9.02 pm at SEEPZ Bus Depot. Significantly enough he has deposed The that said bus for Route no.312 bearing such registration number was converted to bus for Route no.336. the At about 9.10 PM the said bus was allowed to proceed and one Sanjay Patil (PW55) was Conductor and one was driver on the said bus. He deposed that the same has returned to SEEPZ Bus Depot at 9.40 Pawar 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 conductor regarding the checking of the bus, himself having not handed over any office record to of the 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 name of conductor allotted for the said bus for Route no.336 during his duty hours. After referring to the 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-01- H-8765 i.e. occurring of an unusual thing, one which was lateron converted as a bus no.336 at about 9.10 pm supports submission of learned APP that due to same PW61 had reason Route 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 on duty, and registration number of the buses one year back, cannot be construed as a were circumstance claim staked by him during evidence regarding the bus in which unexploded bomb was found affecting the on 2nd December, 2002. 394. The prosecution though had examined PW62 Dilip Masram, who was the conductor for bus route no.312 at 5.28 pm, himself having not supported the prosecution with regard to the prosecution case for a trip that he was standing at the rear door of the said bus and one person holding a dirty bag had entered while inside and the other person accompanying him had not boarded the bus, he had altercation with the the bus said with a bag on the point of not offering change while purchasing ticket, himself having identified person the person during identification parade, having given description of the said person while recording said 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.P407 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 Sanjay Patil. He has also deposed of having sent seized sealed articles to C.A. vide forwarding PW55 letter P-428. During the cross examination, he admitted of having not collected any record regarding the Exh. 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
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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 bus by PSI Girish Ghode PW58 and PW57 panch Ramsurat in whose presence, residue of from the bomb was taken charge under panchanama Exh. 410. As observed earlier, it appears unnecessary to defused dilate the said evidence as the said fact is not disputed. However, it will be significant to note that the about 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 in the bus at Seepz is required to be taken into found 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 Apex Court in the decision in a case of Bhanwar Singh and others .vrs. State of Madhya Pradesh, the reported 16 SCC 657 in paragraph no.68 to the in [2008] effect : "68 & 69 .... When implicit reliance is placed on eyewitnesses, some embellishment in the prosecution case by reason of evidence of any of the prosecution witnesses although not declared hostile by caused itself be a ground to discard the entire prosecution case. Each case must be judged on its own facts. For cannot 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 by PW7 also, but for the fact that according to him on his arrival, he found no one else at is supported the of occurrence. It would be a matter of minutes or a fraction thereof, if the accused had at once left scene the by the other door, the moment he heard the alarm of PW3, PW7, though a neighbour, lives in a place different by the time he reached, it is not unlikely that he may have missed the appellant who had left house and the Therefore, on the basis of the mere statement of PW7 that on his arrival he found no one else it cannot spot. be that PW3 told a lie while stating that her husband had slipped away from the other door on hearing said her At the same time, we also find no good reason to suspect that she would falsely implicate her cries. husband for the killing of their sons by someone else. The real assailants of her own children would not be spared." We therefore, in a position to rely are, solely upon the statement of Hakam Singh (PW17) in this behalf. Similarly, participation of Kripal Singh and Kuber is also beyond any doubt. He came in the tractor having a gun. Kuber also came with a gun and fired Singh ahot at Bhom Singh, Meharban Singh (PW22) and Babu Lal (PW23). The statement made in the s 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-H8527. 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
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9.10 pm from SEEPZ Bus Stand and proceeded to Andheri and returned at about 9.45 pm. During checking of bus, he had noticed suspicious thing below the last seat of the bus. His further evidence relates about the 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. P404. 399. Upon the aforesaid evidence, Mr. Kunjuraman, learned Advocate for A2 has tried to canvass that PW60 witness planted by the police. He urged that surprisingly enough the main witnesses in the present is the case identifying A2 as a person involved in the concerned incident claimed of himself having seen and memorised occurrence of some quarrel, scuffle or bickering with him. He urged that for the present A2 due to incidentalso the incident at Zaveri Bazar it is claimed by concerned witnesses that A2 was the said person and so with they had such a quarrel. He urged that the such feature is 334 whom 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 that considering the evidence of PW60 in proper perspective, the same does not reveal that otherwise urged he any reason to remember the said person sans the quarrel with him as claimed by him. He urged that had 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 at- least 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 been to Tasgaon, Sangli etc. is placed before the court. Learned counsel stated that the evidence having 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 for A1 urged that there is no consistency in the prosecution case regarding the bus in which the counsel said was found. He urged that the evidence of PW55 335 bomb 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 however mentions the bus being of no. MH-01-H-8765. He thus contended that as oral evidence of PW55 the bomb was found in the bus bearing no. MH-01-H-8527. He further urged per that said evidence considered along with the evidence of PW60 reveals that the person with a bag has the boardedroute no.312. He further pointed out that during the cross examination PW60 having admitted that bus for he never travelled by bus for route no.336 makes it difficult to accept that there is consistency in had the prosecution case regarding the bus in which the bomb was found. He urged that if the bomb was found in the bearing registration no. MH-01-H-8527 for route no.336 then the entire evidence of PW60 regarding bus the of some person with bag having travelled by bus route no.312 becomes redundant and as such on event the of the said evidence no conclusion is warranted that A2 had kept the said bag in which the bomb basis was and furthermore the same was given to him by A1 as claimed by the said witness. Learned counsel found 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 confined place. However, the same have occurred at public place i.e. at the BEST stop and in the any bus (SEEPZ incident). The second incident of Ghatkopar is in the BEST bus and the third incident at Zaveri Bazar and fourth incident at Gateway of India at public parking place. Considering the said aspect and on road so taking into account the reason behind occurrence of each of the said incident the same by itself cannot also be to be unnatural or improbable. Needless to add that the incident of occurrence of quarrel between said the
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passengers either while boarding the bus or occupying the seat in a bus are not uncommon. The same is the regarding the occurrence of incident between the pedestrian and the person travelling in vehicles case 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 relevant aspect on oath will have presumptive value of the same being true, unless the same is upon the 337 conf.5.0 9 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. Hence, the evidence of PW60 is not liable to be discarded. 402. Now with regard to the second submission canvassed that 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 person to person. Hence, merely because there was a gap of occurrence of incident and PW60 opportunity to observe the culprit at the time of test identification parade held about ten getting months thereafter, by itself, would not be a good ground to discard his testimony for the same. In the said context, there may be some substance in the plea canvassed that while standing in a queue, PW60 had though initially to pay attention towards two persons standing ahead of him in a queue, still after taking into no reason 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 identify them after such passage of time. Needless to add that taking into account the total period them and for which PW60 was at the bus stop and in the bus along with the said persons, it is difficult to accept that PW60 a glimpse of the said person. In view of the same and no other circumstance having surfaced on had only 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 PW60 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 the bomb blast occurred at Ghatkopar and one unexploded bomb was found in bus route No. about 312. said that he immediately remembered the incident of altercation in between one passenger PW-60 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 8-102003. 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 by SEO Shri Sudhir Surve in their evidence. The evidence of identifying witness PW-60 Manoj Patil nor is vague and therefore such vague evidence cannot be relied upon. I therefore discard his testimony for thus the above reasons." 404. In the same context considering the evidence of PW60 particularly mentioned in paragraph nos.9 and 10 his examination- in-chief which is to the effect as of under:-
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"9. I will be able to identify the person who has holding bag and sat beside me in the bus. (At this stage points out Accused no.2 sitting in the dock, who tells his name as Ashrat.) I will be able to witness identify who did not board the bus and who shouted at me. (At this stage witness points out Accused the person no.1 in the dock, who tells his name as sitting 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 in a row. The place at which T.I. parade was held, two panchas and one SEO were standing 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 person who had not boarded the bus and the one who has shouted at him. Significantly A1 as the enoughalso deposed of having identified A1 and A2 at T.I. parade. Though it is true that he had not PW60 specified evidence the reason for the same considering his evidence in paragraph no.9, it is apparent that during his 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 deposed in detail about T.I. parade of A1 and A2 held by him on 8.10.2003 at Aurthur Road Jail has 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 Patil. I asked Manoj Ananda Patil whether he identifies the suspects. Manoj Patil identified Ananda 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. he had not spoken in clear terms regarding the reason for which he had identified them at T.I. Though parade, sense the said fact is required to be established by the evidence of SEO who had held the in true 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 reason for which he had identified them at the trial. Needless to add, acceptance of the said same evidence establishes A1 and A2 being the same persons who were instrumental in bringing the bomb clinchingly and the same ultimately by A2 in the plant 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 by him had occurred in a bus for route no.312. It is indeed true that PW60 had not given claimed registration bus. However, it is highly unlikely for a bus 342 of the said conf.5.09
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passenger to remember bus number in which he had travelled. He is expected to recall the bus route number the said count evidence of PW60 will not be liable to be discarded. PW60 was expected to tell only. On route bus in which he had travelled and having deposed about that fact accurately, it leads to the of the conclusion established the prosecution case that the incident had taken place in the bus route that he has 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-01- H-8765 and PW62 was the conductor in the bus. His evidence also establishes that said bus was converted into bus Route no.336 at about 9.10 p.m. The evidence of the other witness the 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 between 5.05 pm to 8.40 pm, he had travelled as conductor for bus route no.336 and the same part in was bearing registration no. MH-01- H-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 same was Bus No. MH-01-H-8527. His evidence is wholly silent regarding the bus 343 that the 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 he has erroneously given the bus number of his earlier trip. The same is apparent as he was not same, 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 was operating on route no. 312. The same bus was lateron converted to route No. 336 whence, same the suspicious article was noticed lying therein. PW55 who had operated as Conductor of bus No. MH-01-H8527 for route No.336 on the earlier occasion on the same day, therefore, while lodging the complaint pertaining to No.MH-01-H-8765 designated for route No.336 in the night time on which he was on duty must bus have wrong number of the bus, as bus No.MH-01-H-8527. The evidence shows that he was on duty even given on bus prior to being assigned duty at night on the bus in question. Thus, considering the said evidence in that 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 40 gelatin sticks, one detonator, one alarm clock and on/off switch. The evidence of PW63 PI were Tanaji reveals that at the relevant time he was attached with the M.I.D.C. Police Station and on 5.12.2002 Jadhav he sent all seized articles to the Chemical Analyser under forwarding letter Exh. P 427. He has also had deposed received C.A. report regarding the same, being Exhibit P 428. The said C.A. report in terms of having reveal said articles were gelatin sticks. In view of the same, it is not possible to accept the submission that the that attempt to cause explosion was not made by using a gelatin by preparing crude bomb as found by PW58 in the cloth bag before its defusal. said 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 and detonators was found planted below the 345 clock 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 8.30and during the said trip the said bag was planted in the said pm bus. (c) the bag containing same bomb was brought at Andheri Bus Stop for Route No.312 by A1.
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(d) A2 had boarded the said bus and A1 had handed over the said bag to him. A2 had occupied rear left side in the said bus. seat (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 left in the said bag 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 said bus i.e. for commission of terrorist act and as such A1 and A2 are guilty for commission of the 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 circumstantial evidence in the case of State of U.P. Ashok Kumar Srivastava reported in AIR 1992 SC 840 in paragraph no.9 wherein it is Vs. observed : "9. This Court has, time out of number, observed that while appreciating circumstantial evidence the Courtadopt a very cautious approach and should must 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 so established must be consistent only with the hypothesis of guilt. But this is not to say that facts 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 could have been planted by none other than A2. Such conclusion would not be far-fetched and same 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 voluntary confession made by the said accused. Needless to add that the confession of A2, of which gist and is given earlier, squarely reveals his involvement amongst other in plantation of the said bomb in pursuance of conspiracy hatched, in the BEST bus at Andheri. Even the case regarding the role played by A1 is the also
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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 and A2 has been duly established. The finding given by the trial court to the contrary effect is A1 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 conductor Shri Dilip Wankhede (PW 54). That was recorded by PSI Shri D.N. Jadhav of by bus 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 At the time of the said Panchanama, rear portion of the BEST bus including the last bench (Exh. P-380). was completely damaged and only angles were seen in the rear side body of the bus. Blood stains found were on the seats of the bus. Pieces of glasses of the bus were found scattered on the spot. As a result of the found above explosion the BEST bus of route No. 7 as well as three auto rickshaws, two motorcycles and one Qualis nearby buildings were also found damaged. Pieces of tins, metal pieces, currency notes and Jeep and coins, of glasses, mobiles, walkman, pencil cell were found scattered on the scene of offence and said articles pieces were seized. Alluminium pieces of BEST bus and glass pieces found scattered on the spot were sent to FSL, Mumbai. Blood sample was taken from the spot. Corpse of (1) Vilas Vishnu Mahendrakar and Kalina, (2) @ Hubalal Jagatdev Yadav were sent to Rajawadi Hospital for autopsy and accordingly the same Shiva were 349 conf.5.09 carried out by the Medical Officer at the said place. . All the injured persons were admitted in various and their statements were recorded by the officers of Ghatkopar Police Station. Medical hospitals 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 At Page No. Particulars and evidence regarding No. onwards /Part of Paper Book 46. Anil Mulchand 1896 -Part II Passenger travelling by bus in which blast Vishwakarma had occurred. Eye witness. Identified A2 and A3 in T.I. parade held by PW52 at Arthur Road Prison. 47. P.I. Ramesh Changu 1911- Part II Drawn Spot Panchanama Exh.P-380 Patil 48. Sambhaji Tambare 1923 - Part II Relative of deceased Vilas Vishnu Mahendrakar 49. Kalpesh Gala 1924 - Part II Injured in the incident 50. Panch -Mukund 1925 - Part II For arrest and personal search of A2 on Ingulkar 30.5.2003 51. PSI Pramod 1930 - Part II Arrest and personal search of A2 Toradmal Memorandum panchanama regarding statement of A1 regarding the shop from
which 2 Sim cards were purchased by Nazir . 52. SEO Waman Sapre 1935- Part II Identification parade of A1 to A3 for incident in question. 53. Panch Sunil Bhatia 1959 - Part II 3 memorandum panchanamas regrading 350 conf.5.09 recovery of articles from the house of A1 and A2. 54. Bus Conductor Dilip 1994 - Part II First informant regarding the incident. Wankhede Declared Hostile. 97. PSI Vankoti 2395 - Part II Memorandum panchanama regarding recovery of Geletine sticks detnoters and alarm clocks from the house of A2 98. PSI Talekar 2401- Part II 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. 99. PSI Kandalgaonkar 2410- Part II Memorandum panchanama regarding recovery of Geletine sticks from the house of A1 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 occurred due to use of gelatin in preparing crud bomb, as claimed by the prosecution. Thus, it will having be futile to discuss threadbare the evidence of other prosecution witnesses not connected with the said challenge.to add that the prosecution witnesses tabulated hereinabove have deposed regarding the matters as Needless 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 busRoute no.340, while returning after his work from Andheri, by the said bus, which had exploded. In on 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 panchanama prepared by PW-47 mentions number of the damaged bus as MH-01-H-8246 and the spot bus no.340. Same is the evidence of PW-54 Conductor of the said bus, who, though was declared Route 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.
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422. Now, material part of the evidence of PW-46 runs as under :- "When, I boarded in the bus, bus was filledcrowed, but one rear seat on the last bench was vacant. I had sat by the side of the window on right with side, time one man and one women entered in the bus. That woman had requested me to that she wanted at that to on window side. I thought that they are husband and wife 352 sit conf.5.09 hence, I had shifted and accommodated them to shift on window side on the last bench in the bus. They were bag in their possession that bag was kept beneath the seat of the bus. After the bus had proceeded having for time, the person had came towards me pushing me so, I had said "Bhaisab Dhaka Mat Maro" some That replied "Tere Akeliki bus nahi person hai". Our talk had increased because of such reply. Then that woman said "Bhaisab Maph Kijiye Galti Ho Gai". that man and woman had alighted from the bus at Marol Naka Then 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 He felt deafening and was unable to hear anything and for some time was unable to see due to the bus. 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 seen by him in the bus i.e. the persons who had left the bag beneath the seat. He identified A2 as were being person. It is significant to note that though initially he expressed his inability to identify the the said lady, identified A3 after she was asked to lift Burkha from her face. Significantly enough while lateron identifying deposed that she had Burkha but while sitting she had removed the cloth from her face and her, PW-46 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 identified the male persons i.e. A2 out of 14 persons and A3 woman from amongst seven of having 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 bus for route no.340 with a bag and had alighted at Marol Naka stop and at that time the bag kept the said by beneath the seat had continued to remain at the said place. After carefully considering the answers them 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 of nature of confirming the presence of PW-46 in the said bus. Without enlisting each of asked are the questions posed to PW-46, the answers elicited during the cross-examination effected on behalf of A2 reveals was questioned whether same was first 354 that he 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 until the explosion, reveals that his claim regarding the same has remained unshattered. The perusal of bus his cross-examination reveals that, during cross-examination, his claim of having shifted from rear side towards portion prior to occurrence of explosion, also has remained unshaken. The same is the case the front regarding of having seen the said couple while alighting. PW46 has given a plausible answer during his claim the
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cross-examination that his attention was then drawn towards them, as he had to accommodate them for gettingIt has also surfaced during the cross-examination that he had not approached the Police for giving down. atatement but the Police approached in the hospital where he was admitted due to the injuries suffered by s him to the blast. All the answers given by PW46 to the questions put to him regarding his recording of due atatement or receiving a treatment or reason for going ahead in the bus for alighting, the 355 s 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 cross- examination, rendering his testimony reliable. Needless to add that has also denied that police made him to give false evidence due to himself being victim of blast PW46 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 no different. It discloses that, PW46 during the cross-examination was searchingly crossare examined his claim of having gone for carpentry work at Andheri. However, none of the answers given regarding by PW46 to the questions about the place at which he had gone for work, the person who had given the said the reason for himself getting the work , the time for which he had been for work and/or had work, boardedfor returning etc., have shaken his evidence in any manner. Similarly, the answers given by PW46 the bus to questions asked to him generally about number of passengers in the bus for the said route or fare for the 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 on the last bench, about his location, and the location of the woman with Burkha clad and then sitting 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 significant to note that regarding the questions asked about the bag left in the bus, it has surfaced that is PW46 had seen the bag kept beneath the seat (kept by the said person) not after bus reaching Ghatkopar telephone as suggested to him by the defence, but soon after the said person had alighted the bus. PW46 also exchange answered during the cross-examination that he had told about the same to the Conductor and Conductor had in the bus as to whose bag was it, but nobody had owned the same. Similarly careful consideration asked of questions asked to PW46 regarding having moved in the front side in the bus, the answers received for the the also do not reveal of the same causing any adverse effect upon the claim staked by him. The same is same the regarding the answers received regarding the questions asked about the manner in which the said case 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 cross-examination it has surfaced on the record that face of said Burkha clad woman was open when she had sat by the side of window and while down from the bus. After careful consideration of all answers regarding those matters, it do not getting reveal contradictory claim was staked by PW46. Without dilating upon the further answers received that any during cross-examination effected regarding the aspect of treatment taken by him at Rajawadi Hospital, the said the period required for the same regarding recording of his statement and his participation in T.I. parade etc., the also do not have any effect of affecting the core of his testimony of having identified as A2 and same A3 the said person who had boarded the bus with a bag, and had left the bag behind while alighting being 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
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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 considered opinion that his evidence corroborates the evidence of P.W.46. In order to maintain the 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 is found recorded in paragraph 252 of the judgment, which reads as under: "It is stated in in toto 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 andthat count there was altercation in between the said person and the woman on and P.W.-46. Evidence of PW-46 is silent on the said incident of altercation and pushing of PW-46 by the couplealighting at Marol bus stop. There is thus material discrepancy in the recitals of the memo Ex.P 389 while and evidence of P.W.46. Evidence of PW-46 lacks in material particulars. His evidence is completely the 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 by us, has remained unshaken - clearly reveals that the reasoning given by the Trial Court that held 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 paraded, the same runs as under : (at page 1946-1947 of paper book Part II regarding A2) were "Sambadhitlavun olkhale va sangitale ki dinak 28.7.02 roji ratri sadharan nau ismas hat 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 roji sadharan 9 va. 28.7.03 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 of altercations and/or incident occurred and/or variance therein regarding the incident occurred and details the matter stated in the memorandum of parade contemporaneously prepared by the SEO reinforces the evidence Suffice it to observe that considering the evidence of PW46 in its entirety, the same of PW-46. definitely having identified both the said accused in the Court and so also at T.I. parade and the reason reveals of 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, reveals that on the relevant day he was on duty at bus route no.340. It further reveals that he his evidence had boarded the bus at Andheri bus terminal and 59 passengers had boarded the bus at Andheri bus stop at which bus was taken from the said terminal by the driver. He has further deposed regarding the route the said 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 seat on the right side of the bus. He has further deposed that when the bus was at Asalpha bus stop, he last did find the lady in veil in the bus. He has further deposed that she was the only lady who was in the veil not in bus. He further deposed of bus having proceeded to Ghatkopar pipeline. His further evidence relates to the the occurred, himself being unconscious, admitted in Rajawadi Hospital for 20 days and having blast received to legs, ears, face and head. The Police having approached him during the same night and injuries having his complaint Exhibit-P-399. He had vouched contents of the same and his signature at two recorded places It appears that during the further part of his examination-inchief himself having not supported thereon. 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 regarding the lady in veil having boarded the bus along with one person having got down prior were to Asalpha bus stop, about the talks ensued between the said witness and himself having seen the said lady, 362 conf.5.0 9 given her the ticket etc.. All the said cross examination being effected to bring on record that the witness have identified accused no.2 and 3 at T.I.Parade held on 11.10.2003 at Arthur Road Jail. During could not the examination of PW-54, it was brought on record that on 11.8.2004 he had given a report in writing to cross his superior and one more letter was issued by him to his superior on 20.6.2005. It was also brought on record had written them as Police was pressurizing him for identifying the lady in veil by showing that he 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 her face. It was also brought on record that he was taken to Arthur Road Jail and Byculla Jail not see without him to inform his superiors in advance. He claimed of having been shown the photographs of allowing malefemale by the Police at the said jail and he was asked to identify them etc. He also produced the and letter 11.8.2004. PW-54 having shown inability to produce the copy of letter dated 11.8.2004, the same dated was
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got produced by making an application to the Court and obtaining summons for the same and after production the same was got proved through PW-54 and marked as Exhibit-Dof the same 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 by PW-54 in his letter dated 28.8.2003 at Exhibit- D-65 was wrong and that he (PW 54) has mentioned not mentioned the reason of delay in the said letter and letter dated 20.6.2005 Exhibit-P-400. It was also brought in his (PW 54) evidence that in letter Exhibit- D-5, PW-54 has not mentioned that Police on record having photographs of culprits and were pressurizing him to identify them and his inability to assign shown 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 all the answers in the said cross examination, it can be safely said that by the same, the claim enlisting 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 with regard to the evidence of PW-54. It was that the prosecution having sought the leave under section 154 of the Evidence Act to cross examine urged 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 Secondly, it was contended that the prosecution, during the cross examination, though had purpose. 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. that hence the said evidence given by PW-54 in examination-in-chief is binding upon It was urged 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 trustworthy witness and the same being planted by the investigating not a 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 such factors are not mentioned in the relevant letters by PW-54 by itself would be no ground because to discard the said claims staked by PW-54. It was urged that such a conclusion is inevitable as the prosecution able to establish that PW-54 had any reason to stake such a false claim unnecessarily. It has not been was that considering the prosecution evidence upon the preponderance of probability, the urged 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 and the said witness not supporting the prosecution gives severe blow to the prosecution case witness which tried to cook up and establish through the so called planted witness PW-46. However, the they had 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 becausean injured witness, the conclusion cannot be drawn that on the relevant date he was traveling by he was the bus. The same is apparent as he may be one of the injured persons due to blast occurred and due to the said 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 prosecution for any gainful purpose due to prosecution being required to cross examine him at the to the trial,rightly repelled by learned APP by placing reliance upon the decision in the case of Jodhraj Singh was ,vs, of Rajasthan reported in (2007)15 SCC-294 and particularly paragraphs 11 to 14 and urging that State 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-SC294 wherein with regard to the evidenciary value of a witness cross examined by the party calling him as a itness, the Apex Court in paragraph 51 has observed to the effect as w 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 atter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each m case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or still be believed in regard to a part of his testimony. If the credit of the witness has not been can completely may, after reading and considering the evidence of the witness, as a whole, with due caution shaken, he and accept, in the light of the other evidence on record, that part of his testimony which he finds to care, be credit-worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, the 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. such considered view as apparently the said claim staked is blissfully vague regarding the person We are of 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 PW54 during the cross examination and particularly in absence of such allegations in the letters written by him, be another ground for not accepting the said bald claim of PWwould 54. 368 conf.5.09 441. Now, considering the other aspect urged that evidence of PW-54 runs counter to the evidence of PW46 to PW-54 nowhere having claimed of the veiled lady having boarded the bus along with other man or due 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 possible without there being any direct admission elicited from PW-54 of no such events as claimed at all 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 claimed by PW-46 having occurred in between PW-46, the said veiled lady and the events as person accompanying her and the said evidence of PW-46 also not revealing that PW-54 was nearby present at the of the said events, would be another factor to discredit criticism. It can be further added that time considering
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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 PW46. 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, question that may arise is whether any corroboration thereto is found from the other source then the next i.e. the evidence of other witness or from the documentary evidence. The evidence of any witness found from to acceptable can be rejected only in the event of the evidence of other witness contradicts him and be destroys his evidence. Applying the said test and the evidence of PW54 not leading to any such conclusion that the is contrary to the evidence of PW46, it is difficult to accept the criticism that evidence of PW46 is same liablerejected. to be 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 decision in case of Mahabir Vs. State of Delhi reported in (2008)16 SCC 481 and particularly the paragraph 12. According to her, the prosecution through the evidence of PW52 SEO Waman Sapre having established had identified the A2 and A3 at test identification parade, the said evidence is also useful for that PW-54 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 itness of a culprit at the trial is the substantive evidence and truthfulness of the same is assured by w prior identification of the said culprit made by the said witness at test identification parade. The latter is never aubstantive evidence and is only a corroborative piece. In the instant case, PW-54 having failed to identify s A1 A3 at the trial, the identification made by him of the said accused at test identification parade is and wholly inconsequential. The decisions pointed out are upon the point that in all cases the evidence of witnesses the culprit at the trial being not corroborated by identification of culprit made by test identifying identificationnot be without any value in absence of other corroborative evidence for supporting the parade may claim staked by him. 444. Thus, considering the evidence of PW-54 who was cross examined by the prosecution coupled with the that the relevant matters marked as portions A, B and C have not been established, the evidence of fact 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
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"Arrest of A1, A2 and A3 " and recoveries made at the behest of A1 , it will be wholly unnecessary to once discuss the said aspect. The discussion made earlier under the said caption reveals that by the said again 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 the evidence of PW46 as corroborated by the evidence of PW54. Such a conclusion is apparent as out of the evidence pertaining to the seizure and recoveries and particularly nature of explosive material said seized similarity with the explosive material used in the explosion in question. That fact is established having from reports at Exh.P-605 regarding the samples from the spot etc. sent to C.A. vide forwarding C.A. 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 absence of such evidence, the concerned Accused, at best, can be proceeded for offence under or that, in 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 for causing explosion. Significantly, this defence argument cannot be taken forward in the light were used of evidence of PW 46 and more particularly confession of A2 and A3. That evidence unmistakably points out to involvement of the Accused in the commission of the crime and offering no explanation regarding the 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-01- H-8246 for route no.340 and the said explosion was due to the material in the bag keptthe passenger underneath the bus by 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 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 the said seat. under (g) PW46 had shifted himself in the front side of the bus for alighting after the bus had reached Ghatkoparexchange area. telephone (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 residence of A2 and at the residence of A3 to which A2 had led Police and at the 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
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forming formidable chain leading to sole inference that the said bag was jointly planted in the said bus by A2 A3 with an intention to cause explosion in the said bus i.e. for commission of Terrorists Act and as and such and A3 are guilty of committing alleged A2 offences. 449. Even accepting the submission that on relevant day many other passengers had travelled by the same bus,the inference deduced earlier is inevitable keeping in mind the true import of the circumstances. It will but 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 in view of the evidence surfaced only against A2 and A3 and of planting of bag by none else inference, than the defence submission that the inference is fanciful hypothesis, will have to be A2, rejected. 450. The aforesaid inferences are further reinforced from the confession of A2 and A3. As regards their confession, we have already reached to the conclusion that the same are true and voluntary confession made concerned accused. Needless to add, that confession of A2 of which gist is given earlier by the squarelyhis involvement amongst other in plantation of the said bomb in the BEST 375 reveals 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 withfinding so arrived at by the trial Court on the basis of evidence on the 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) drawing detailed panchanama requiring about 7 hours i.e. Exh. P-353 in presence of panchas by Yogesh (PW-35) and Uday Zaveri. During the said work Metal pieces scattered and blood stains Chavan splattered on the spot. The officers of Forensic Science Laboratory called on the spot for the work were seen 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 into pieces and the pieces of the cylinder thrown on the terrace of the nearby buildings within broken the of 300 meters were collected and seized by PSI Bajarang Parab (PW 45) by drawing panchanama range (Exh. Other vehicles i.e. (a) taxis bearing No. [i] MH-01-G-1652, [ii] MH-02- R-683, [iii] MH-02-4421, P-376). [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) [i] Santro Car, bearing No. MH-01-GA-5275 [ii] Maruti Car bearing No.MH-01-Y-5922 and [iii] Cars Indica Car bearing No.MH-03-S-4785 were found damaged. Heap of pieces of glasses of the vehicles were found the distance of 200 meters from the scene of upto offence. 453. In all eleven articles consisting licence of the taxi, blood mixed soil, number plate of the taxi and metal with blood stains, one railway identity card etc. came to be seized at the time of preparing pieces spot panchnama and same were sent to Forensic Science Laboratory for analysis. Shops of the jewellers bearing Nos. 2, 6, 377 shop conf.5.09
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7, 9 and 10 to 36 were also found extensively damaged. The motor taxi bearing No. MH-R-2022 in which the was planted was completely burnt and skeleton of the same was taken in possession of. Photographs bomb of scene of offence were taken and video shooting of the spot was also done. the 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 : Page No. PW onwards/Par Name Particulars No. t of Paper book . 27 Lalsab Singh 1737- Part II Taxi Driver/ lodged Complainant complaint of r Bomb Blast in Zaveri Bazar 28 Dilip Yagnik 1746- Part II Working at the STD booth at Eye Witness Zaveri Bazar.From from which call made by was A2 He identified A2 in identification parade. (Believed ) 29 Kunjabihari 1756- Part II Owner of Pan-bidi Shop at Pandey Zaveri Bazar. Eye Witness He identified accused No.2Ashrat. (Disbelieved ) 30 Harish Popat 1765- Part II Quarrel with accused No.2 Eye Witness Ashrat at Dhanji Street. He identified accused No.2Ashra t (Believed ) 378 conf.5.09 31 Pyaresham Tiwari 1772- Part II He identified the taxi driver - Taxi Driver Upadhyay in whose taxi bomb was planted, who died during Zaveri Bazar bomb blast. 32 Indramani 1774- Part II Father of Taxi driver- Upadhyay Upadhyay, who died during Zaveri Bazar bomb blast . 33 Kutty Shetty 1775- Part II Owner of Panpatti Stall at Injured Eye Zaveri Bazar. He identified Witness accused No.2 Ashrat (Disbelieved) 34 Dinesh Rakhade 1780- Part II Relative who claimed of 2 dead bodies.
35 Yogesh Chavan 1782- Part II Pancha in respect of spot Pancha panchanama. 36 Firoz Ahmed 1803- Part II Injured Jariwal a 37 Sonba Deogirikar 1805- Part II Injured 38 Deepak Vadhani 1806- Part II Injured 39 Jaya Shetty 1807- Part II Pancha in respect of seizure of Pancha the clothes of the complainant 40 Shankar1809- Part II He took photographs of dead Photographer and injured persons at Zaveri Bazar Sawant . 41 Dushyant Oza 1810- Part II He conducted Test Special Executive Identification Parade in Zaveri Magistrate Bazar bomb blast case. 42 Suryakant 1817- Part II He drew panchanama of Naikwadi metal pieces were taken PSI out from the body of injured. 43 Gopichand 1824- Part II He drew spot which panchanama. Chava n PI 44 Shamrao Jedhe 1826- Part II Investigating Officer who ACP conducted investigation prior to investigation being transferred to DCB CID. 45 Bajrang Parab 1891- Part II He drew panchanama in API respect of the gas cylinder of motor taxi in which bomb was kept. 64 Datta Bhosale 2074- Part II Claimant of dead body of his son, Vinod. 379 conf.5.09 65 Robin Das 2075- Part II Claimant of dead body of his father. 66 Dilip Bombale 2076- Part II Claimant of dead body of his father. 68 Sandesh Kharade 2079- Part II Claimant of dead body of his brother, Sandip. 69 Alisab Shaikh 2080- Part II Claimant of dead body of his son, Gokul Hussain. 70 Perajmal Jain 2082- Part II Relative of dead person. 71 Shakikl Ahmed 2083- Part II Relative of dead person. Ismail 72 Abdul Latif Umar 2084- Part II Claimant of dead body of his Vadiwala son, Sohel 73 Mohd. Ibrahim 2085- Part II Claimant of dead body of his Ansari son, Mohd. Islam. 74 Nilmani Kanayalal II Claimant of dead body of his Dhara brother, Vishwanath 75 Molay Kartik 20882086- Part Part II of dead body of his Karmarkar nephew, Anand Dey. 76 Smt. Mangala 2089- Part II Claimant Claimant of dead body of her Arun Gadgil husband.
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77 Rajan Parshuram 2090- Part II Claimant of dead body of his Verulkar daughter. 78 Bhaskar Kacharu 2091- Part II Claimant of dead body of his Bansode wife. 79 Harischandra 2092- Part II Claimant of dead body of his Dhondu Kale wife. 80 Navnath Sitaram 2093- Part II Claimant of dead body of his Sutar brother, Gorakhnath 81 Faudar Rajaram II Claimant of dead body of his Dhuri brother, Omnath 82 Bajrang Bahadur 2095- Part II 2094- Part Claimant of dead body of his Singh brother, Harsh Bahadur 83 Rajendraprasad 2096- Part II Claimant of dead body of his Ramkumar brother, Surendraprasad Pandey 84 Mehul Dungarshi 2097- Part II Claimant of dead body of Palan father, Dungarshi. 87 Anant Mandal 2100-II Claimant of dead body of his Part brother. 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 for causing the said explosion as claimed by the prosecution. Accordingly, it may not be necessary material to discuss threadbare the evidence of other prosecution witnesses not connected with the defence of the accused. Needless to add that the prosecution 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 with the aforesaid explosion. The unchallenged evidence of PW27 Lalsahab Singh who had lodged Nasir 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 alsodamage was caused to the property. His evidence in equivocal terms establishes huge impact of the the said to which he was witness while he was plying his taxi on the road near Sagar Juice blast Centre. 457. The reference to unchallenged evidence of another taxi driver PW31 Pyareshyam Tiwari establishes that Umeshchandra Upadhayay was driving the said taxi bearing registration No. MH-02- R-2022 in which one the explosion had occurred on the said date. It also establishes that on the said day by 12.30 noon he had seen the taxi at Dhanji Street taxi stand and hence met Umeshchandra Upadhayay at the said spot. He had said offered tea to Umeshchandra but he had declined and told him that his passenger had kept luggage inside the dicky of taxi and was expected to come back within about one hour and he was waiting for the passenger. It his also discloses that then said Umeshchandra was standing nearby the said taxi and had died in the explosionon the said day thereafter. Thus the said evidence also establishes that the explosion had occurred as occurred a result of the luggage which was kept in the said taxi. His evidence regarding Umeshchandra being owner of said taxi is found corroborated by the evidence of PW32 Indramani Upadhayay, father of the said the 382 conf.5.0 9 Umeshchandra. The said witness also deposed of his son having died while he was driving his taxi. Further, died and himself having taken charge of his corpse from J.J. Hospital and PW31 being he himself 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 taxi, the said person had shouted that said taxi was engaged and he should move away. PW30 looked at said that person, whence the said person questioned him as to why he was staring at him. PW30 told him why he unnecessarily becoming angry. Taxi driver had also told PW30 of taxi being engaged and PW30 had was 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.m. loud explosion had occurred at Dhanji Street taxi stand and had seen smoke coming from the taxi p stand he had been earlier to catch the taxi. He said that the 383 where conf.5.09 driver of the taxi number MH-02-R-2022 was dead. PW30 during his evidence after giving the description of person with whom he had quarreled for boarding the taxi which had exploded and showing ability the 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 thatwanted to make a statement about what had happened. The said constable had questioned about his he identityhad told that he was selling baniyan and readymade clothes as a hawker. The constable had told him and he to to L.T. Marg Police station but because of fear he had gone to the house along with the goods. He has go also deposed of being to Arthur Road Jail on 9.10.2003 and identified the person with whom he had quarrel out of persons at the said jail and Special Executive Officer and the panchas being then 14 present. 459. PW30 was cross-examined extensively on behalf of A2 regarding the area in which he was carrying on business, for which he had gone to purchase the goods. Significantly enough he was also suggested that his he moving in the said area without any work. By pointing the said suggestion, the learned APP has was 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 parade because of the photograph of A2 which had appeared on T.V. and newspaper. He also denied T.I. 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 Marg Police station prior to the said date. Significantly enough he claimed of not remembering L.T. whether given the evidence before Ad-hoc Additional Sessions Judge, in Crime No. 14 in Sewree in he had Sessions 516/2000. He replied of being to the POTA Court for first time but not remembering 385 Case No. 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 been to Girgaon Court but do not remember whether he had deposed in the said Court. He denied had 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 roped in by the Police. It was urged that the theory of the said quarrel with person in a taxi is being again
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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 Police and the effort of defence to establish the same was frustrated due to the defence being not the permitted the evidence regarding the same for which they had applied to the Court. It was thus urged that to adduce 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 place, even accepting that due to answers given by PW30 of not remembering some matters denotes first some on his part, the same, by itself, can never be a good ground for discarding his testimony in toto anxiety which otherwise has remained unshattered in any manner. At the most, his evidence would warrant close scrutiny such matters but not altogether rejection of his entire evidence as tried to be canvassed. In view regarding of same, we have cautiously scrutinized the evidence of PW30 and so also the criticized part the 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 apply even to the evidence of PW30. Thus, his evidence cannot be would 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 clearthough POTA Court had found that the production of document for showing that PW30 is a that habitual was not necessary. Even then, the said request made by Mr. Wahab Khan, learned counsel for A1 witness for issuing the summons to Colaba Police Station and V.P. Road Police station for production of the seizurewas allowed by the POTA Court for curtailing length of the trial. In view of the same, it is difficult memo 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 to state that the concerned Police Station having reported that they were not in possession of enough originals document, the defence had not pursued the said matter thereafter. Such being the state of of the said 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 Yagnik- PW28 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 working, bearing Nos. 56389009, 22419096 and 56250089. It reveals that he was alone working in was the 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 STD said booth and made call to one Nasirbhai saying "Maine Mumbadevi mandir ke pass taxi me mal bhara STD hai. der me kam ho jayega". It reveals that then said person had given currency note of Rs. 10 to PW-28 Thodi as was not having change. PW28 had asked him to obtain the change from nearby shop and said he person after 5-7 minutes and asked PW28 to retain currency note of Rs. 10 as he was not able to returned have
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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 been to his booth on 25-8-2003 at 12.10 hrs. for calling Nasir. His evidence also reveals A2 who had having with Nasir on the telephone instrument of UGS Co. having No. talked 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. his employer and apprised him about the blast and that he was closing the shop. He called Significantly said evidence of PW-28 is found corroborated by the recitals in call report of cell No. enough the 9892451164 P-284 (colly). During the discussion made earlier under the caption of arrest and seizure at which is at Ex. 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. the time mentioned in the call details Ex. P-284(colly) is 12.13.49 p.m. Thus the evidence of PW-28 and in relevant respect is found fully substantiated with all necessary particulars by the document Ex. Pthe 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 from the distance of 300 meters of their shops and thereafter both of them had been to the said place quarrel of quarrel. At the said place, a motor cyclist and two pedestrians were quarreling with each other. The pedestrianpushed said "Nasirbhai Gandhibhai Andha Ho Gaya kya, samnewala Admi koi dikhta nahi kya". who was The replied to him "gali mat thena tum kya karega". The pedestrian thereon said "kaun kiska kya karega biker yah Kal dophar ko malum padega". Thereafter driver of the motorbike and the pedestrians indulged tumko in scuffle and it was subsided by PW-29 and PW-33. Thereafter those persons left the spot. On the next day at 1 p.m. there was blast in the taxi. In the above blast many persons lost their lives and several bout 391 conf.5.0 9 persons became injured. They claimed of having recollected about pedestrian who were quarreling with the cyclist on the earlier day in the evening might have involved in the blast. Both the witnesses deposed motor 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. The perusal of the cross-examination amongst other reveals that P.W.-29 had been to the place of quarrel 2-3 minutes, pedestrian had given threat only to the motorcyclist and not to other. It discloses within that to the question asked that the threat was given to motorcyclist had no relation with the incident PW29 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 during the cross-examination also discloses except P.W.-29 and P.W.-33 Kutty Manappa Shetty, surfaced no shopkeepers went to the spot to pacify the quarrel. The quarrel of pedestrians with motorcyclist other is alleged to have taken place in the evening of 24-8-2003 and accused No.2 was identified by both the above
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witnesses in the TIP held on 9-10-2003 as a person quarreling with the motorcyclist. In light of the 392 conf.5.0 9 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 nature and thus there was no special reason for said witnesses to identify accused No.2 after the of trivial gap days has discarded their evidence regarding identification of A2 made by them at a trial. Similarly of 45 the Court had also discarded identification of Nasir accompanying A2 made by them by trial identifying of the absconding accused Nasir shown to them at the trial. Needless to add that both the photograph 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 leaving their shop at a busy place for such trivial reason and so also apparently there being conduct of no reason for both of them to remember the said persons involved in the quarrel. Moreso, the nature of threats in the said quarrel clearly smacks artificialness than natural nature of occurrence of such given incident. 393 conf.5.09 469. The trial Court has discarded the evidence of both the said witnesses regarding identification of Nasir by them at trial on the basis of the photograph by accepting submission made on behalf of A1 made 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 violative of Art-21 in the case of Kartar Singh V/s State of Punjab 1994 CRI. L.J.3139. We is held have already observed earlier regarding the said aspect. Hence we do not propose to make further observation same as on the preponderance of probability we have already concluded that evidence of regarding the PW29 regarding the identify of Nasir being unworthy of credence. However, at the same time we also do and 30 not with the trial Court for rejecting the evidence of both the said witnesses in toto as the said evidence agree 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 parkedjunction of Dhanji Street, Yusufali Road causing death of 36 persons and injuries to 138 persons at the 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 Dicky of the said in a 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 with an intention to cause an explosion in the said taxi i.e. for commission of Terrorists Act and as by A2 such is guilty of committing alleged A2 offences. 472. Such an inference is inevitable after considering the true import of the aforesaid circumstances in the of the observation made by the Apex Court in the case of State of U.P., Appellant Vs. Ashok light 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 material at the said spot in furtherance to the conspiracy explosive 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 establishedwe do not find any fault with that finding arrived at by the trial Court upon the said evidence and hence 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 explosion of series had occurred at 13:05 hrs. on the same day in a taxi bearing No. MH-02-Rbomb 2007 at Pay & Park opposite to Hotel Taj at Gateway of India, P. J. Ramchandani Marg, Colaba, Mumbai parked - 00 4 005. The prosecution case is that said parked taxi bursted into pieces and was thrown at the distance of nearly 32 feet. The impact of the explosion was so forceful that the lamps on the lamp-posts at the spot about were and cracks were caused to parapet wall for the sea near Gateway of India. Crater was also developed broken 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 inspected and seized metal pieces as well as soil and stones. Dust was spread on the nearby vehicles and also 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 badge kept therein were taxi 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
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who had firstly reached at the place of offence. By obtaining crime No.206 of 2006 from Colaba Police crime was registered for offence under sections 302, 307, 427 r/w 120-B of Indian Penal Code and Station, 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 Act and u/s 3 and 4 of POTA Act, 2002. PW-92 had also recorded situation prevailing at the spot Property by drawing scene of offence Panchanama (Exh. P-318) in presence of panchas i.e. Mukhtar Abdul Majid Shaikh and Mohd. Hakim Mohd. Salim Shaikh. He had also recorded statement of Shri. Kartik (PW-17) Pradhan who was then serving at Pay & Park Site near Gateway of India and who 398 (PW-16) 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 foilthe parking receipt (Exh. P-316) was given for the same and counter foil (Exh. P-312A) for the of receiptfor parking effected on day of explosion. Pieces of CNG gas cylinder were found scattered at a given distancemeters from the spot and those were taken in possession of. Photographer Shri Vasudev of 250 Kadam took photographs of the scene of offence. Inquest panchnamas of the dead bodies of (PW-96) sixteen persons were drawn and after examining the said corpses, CMO of St. George Hospital, Dr. deceased Ashok and Dr. P.R. Ghuse of G.T. Hospital issued provisional death certificates that said deaths were due Shinde to multiple injuries received due to the bomb blast. The statements of injured persons were recorded. Their certificates were collected from the concerned hospitals. Seized articles were sent to FSL, Mumbai injury 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 Kartik Pradhan (PWfrom 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 Name Page No. Particulars No . 13 Pandit Bhandalkar 1466 -Part Prepared sketch of scene of (Plan maker) II offence 14 Camilo Joaquim Reis 1475-Part II Complainant in Gateway of (Police Naik attached India bomb blast case to Colaba Police Station ) 15 Shivnarayan Pandey 1495-Part II Taxi Driver. (Star witness) Identified accused Nos.1 and 3 in Test Identificatio n Parade.
(Believed ) 16 Kartik Pradhan 1586-Part II Attendant of Pay and Park (Attendant of Pay and at Gateway of India who Park) had issued parking receipt to P.W.No.15. 17 Mukhtar Abdul Majid 1595-Part II In respect of scene of Shaikh offence. (Panch ) 400 conf.5.09 18 Madhukar Bodke 1615-Part II Held Test Identification (Special Metropolitan Parade. 6.10.2003 of A1, Magistrate) A2 at Arthur Road and of A3 at Byculla Prison for PW19, 15 & 20. 19 Nafiz Ahmed Khan 1671-Part II Witness regarding quarrel with accused No.1, Hanif at Juhu Lane identified accused No.1-Hanif and accused No. 3 -Fehmida. 20 Ramchandra Gupta 1694-Part II Identified accused No. 1 Bhelpuriwala behind Hanif and accused No. 3Taj Hotel. Fehmida. Friend of PW-15 (Disbelieved) Shivnarayan Pandey. 21 Amit Patkar 1718-Part II Injured 22 Salauddin Ibrahim 1720-Part II Injured Shaik h 23 Ranchodbhai Bharwad 1722-Part II Claimant of 7 dead bodies of relatives. 24 Ramabhai Bharwad 1724-Part II Injured 25 Ramesh Yadav 1726-Part II Claimant of 2 dead bodies. 26 Rajaram Joshi 1727-Part II Drew spot panchanama (PI Colaba Police with PW-92, ACP-Sharma. Station) 67 Ismail Shaikh Ibrahim 2078-Part II Claimant of dead body of his father. 85 Smt. Manju Hiralal 2098-Part II Claimant of dead body of Thakur her son, Krishna 86 Smt. Laxmi Jadhav 2099-Part II Claimant of dead body of her mother. 92 Vinodkumar Sharma 2320-Part II ACP, Ist I.O. in of Gateway (Assistant Blast Case, registered FIR Commissioner of and drew spot panchanama. Police Colaba Division )
93 Jayawant Shelar 2325-Part II P.I., recorded statement of (Police Inspector - star witness, PW-15, ColabaStation) Shivnarayan Pandey. 94 Suresh Sonar 2328-Part II He took over investigation (Assistant Police from PW-92, ACP-Sharma Commissioner of Police - Colaba Division ) 401 conf.5.09 95 Bhalchandra 2383-Part II He submitted FIR in 37th Ghadigaonkar Court, Esplanade, Mumbai. (Police Naik, Colaba Police Station) 96 Vasu Kadam 2394-Part II Photographer, who took (Photographer) photographs of place of incident and bodies. dead 479. Even for the present incident, the defence has not disputed the factum of explosion having occurred and to same persons having succumbed to death and/or being injured and/or damage being caused to the due 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 connected with the said issues. Needless to add that the prosecution witnesses tabulated witnesses not 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 time his taxi was used for such purpose by his friend Rammani Mishra. PW-15 was residing night 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 of Rs.600/- for whole day to see tourist places in 403 fare conf.5.09 Mumbai i.e. Hajiali, Hanging Garden, Aquarium, Gateway of India and Rani Baug. After said person seat by his side, as was asked by said person, he drove the taxi at the end of Azad Galli where one occupied bearded person along with two women and one small girl, aged about 4 years boarded the taxi. They occupied the rear seat.
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483. PW15 described the person who had hired taxi and also identified photograph of said person i.e. of Nasir driving licence part of Article 71 (colly) and election card Article 72 as being that of said person. from The driving licence and election card were seized from the person of encountered accused Nasir by PW1 said 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 bearing No. KGY 2919066. PW15 also identified A1 and A3 as being the persons who had Rehman boarded the two girls and sat on the rear taxi with 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 Bhanjanand to Arthur Bunder Road. It reveals that Nasir had then asked P. W. 15 whether he could park Temple the in the compound of Taj Hotel to which he had denied. Thereafter P. W. 15 was paid Rs.200/- and he taxi was to park the taxi in the "Pay and Park" lot opposite Hotel Taj. The passengers then left the taxi asked asking that they would return shortly. He had parked Taxi in parking lot in front of Hotel Taj at about 1.30 P.W.15 p. Thereafter about 45 minutes the passengers returned and they left the spot for lunch and came back at m. 2.15 P.W.15 had taken taxi out from the parking lot by making payment of parking charges of Rs. 10 to P. p. m. W. Kartik Pradhan who had issued parking receipt (Exh. P 316) for having parked his taxi bearing No. 16 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 of the said Galli at about 3.30 p.m. Nasir paid him balance of Rs.400/-. Nasir also told PW15 at the corner to bring taxi in Azad Galli at 10.00 a.m. on the next day for visiting tourist places. Significantly enough evidence Kartik Attendant at Pay and Park in front of Taj Hotel also corroborates evidence of PW15 of PW16 regarding of parking and such a receipt being issued by him. The same is also found corroborated by the aspect 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 Azad Galli at about 10.00 a.m. where A1 (i.e. person with beard and who had sat on the rear side in taxi in the on the earlier day) came there alone and asked him to take the taxi inside the compound of the taxi building where construction was going on. After five minutes a lady with two girls and said person - A1 came with a ray colour airbag and asked P. W. 15 to open the dickey for keeping said air bag and carefully kept it g in dickey, but dickey could not be properly closed. P. W. 15 asked him to keep the airbag on the top of the taxithe carrier, but he told that the bag contained valuable articles and it was not proper to keep it on on the carrier. After keeping spanner, stepney and jack inside the taxi the airbag was neatly kept in the dickey and was locked. At about 10.15 a.m. A1, the person with beard, thereafter left taxi for making phone call same and returned within 10 minutes. He occupied front seat besides PW15; and his wife and daughters occupied the seat. They asked P. W. 15 to take the taxi towards Gateway of India. When taxi was taken at Gateway rear of India Ramchandra Gupta (P.W.20) came from front side and called PW-15. A1 asked PW-15 not to wasteby indulging in discussion with PW-20 Ramchandra Gupta and told him to go fast to the place where time the was parked on the 406 taxi 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) date and part of taxi number. In the same context evidence of PW16 reveals that sometimes he bearing was writing full registration number of the vehicle for want of time and, therefore, receipt Exh. P-316 and not 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 25-82003
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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 colour airbag which was put in the dickey, he was reluctant to go to urinal leaving the taxi gray unattended. 407 He 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' 150 to 200 feet. When he came out of 'Sulabh Shauchalaya' at that time he heard sound of was near about big explosion as a result of which he felt that his ears had become deaf. He sat on the ground and after sometime towards parking lot where his taxi was he went parked. 487. The further evidence of P.W-15 reveals that he could not locate his taxi at the parking place as there was all around. His taxi was found lying 30 to 32 feet away from the place where it was parked and it smoke was completely damaged. It is noticed that while PW15 was describing the damage caused to his taxi, he started in the witness box. After sometime he spoke that he saw some dead bodies around the taxi and weeping othersfighting for their lives. He thereafter came to the lane behind Hotel Taj and sat at one place for were near 45 minutes by keeping both the eyes closed. After he found that he was able to walk, he walked about upto Police Station and narrated the entire incident. P.W-15 identified A1 Hanif and A3 Fehmida in Colaba 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 taxi25-8-2003 and she was then wearing salwar-kameez with punjabi dupatta. PW-15 also deposed about on test identification parade which was held in Mumbai Central Prison on 6-10-2003. He deposed of having attended above jail on 6-10-2003 at 12.00 hrs. and identified accused No.1 out of 14 persons in the TIP in the row. duly denied suggestion given in cross-examination that no TIP was held in Mumbai Central Prison PW15 on 6-10-2003 and he did not identify accused No.1 in the said TIP. Significantly, A1, during his examination of Cr. P.C. (Exh. P-615) regarding the said evidence had answered question No.315 that under sec. 313 he identified by PW-15 at the instance of police. Similarly, during cross-examination effected by was Adv. Khan on the point of TIP by PW-15, had replied that dummies were looking almost identical in Wahab age the age was approximately 30-35-40, out of the dummies 9 to 10 were having beard, there was only and one to the identification room and that room had no transparent grill. The said answers in crossdoor examination further strengthened his evidence regarding identity of of PW-15 has 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 question asked about the source of his information about the arrest of A3 i.e. through news paper, the T.V.or any other media, PW15 replied that he had gone to his native place and in his village there is no Television, and he also does not have Radio. He also replied that during parade she was standing at Sr. Newspaper No.5. denied of not having participated in T.I. parade of not having identified A3. Significantly A3 PW 15 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 313 of Cr. under sec. 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 him while coming to Colaba from Andheri on 24-8-2003 i.e. the photograph of Nasir seized from beside the
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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 sub- standard 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 shows that the articles seized from the blast place at Gateway of India vide panchanama Exh. Psame 318; consisted the pieces of cylinder which was fitted in the taxi bearing No. MH-02-R-2007 and were sent to C.A. for analysis on 27-8-2003 vide forwarding letter Exh.P-539. The Chemical Analysis report Exh.Poffice 540 (colly) received regarding the same amongst other reveals that RDX (Cyclotrimethylene Trinitramine) alongpetroleum and Hydrocarbon oil was detected upon articles examined i.e. metal pieces, rubber with pieces, wires, debris, cloth pieces etc. It is also opined by Assistant Chemical Analyzer to metalic Government Forensic Science Laboratory that looking at the site of bomb blast it is evident that high intensity explosives To wit, the report bearing No.H(T) 10310/2003 specifically depicts : "The broken CNG were used. Cylinderat the site indicated 411 found conf.5.09 added effect of CNG gas in the blast. The residue and remains collected at sight shows the presence of RDX with petroleum hydrocarbon oil as tested by chemical and instrumental along method." 491. The evidence of PW 94 has remained unshattered regarding this aspect. The said matters from C.A. clearly establish that blast occurred in concerned motor taxi was due to explosion caused by means Report 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 accused during their examination under section 313 of the Code of Criminal Procedure as pointed of the 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 trial court about the said aspect in paragraph no.212 of the judgment under the 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 urged that the said answers reveal that though PW 15 could not hide during the cross-examination that was he received such amount from Shiv Sena Party, he gave evasive answers about the said reward. had 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 infunction. It was urged that even with regard to receipt of the amount, he gave evasive answers that he a 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 the cheque himself. He was also unable to give cogent answers regarding how he knew that he seen was
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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 aeward has surfaced in an answer to the question asked to him during the cross-examination. He was r asked he had received any compensation from State Government or any private institution. PW 15 whether in response to the said question candidly disclosed about receipt of such a reward from Shiv Sena Party. We failappreciate as to how this admission will militate against the prosecution. It is not possible to to countenance of the defence that answers given by PW 15 reveal his anxiety to hide relevant facts. No the argument 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 we have already alluded to. The Trial Court after considering the said aspect in paragraph No.213 to which of Judgment under consideration, had not accepted above stated defence criticism. We are unable to find the any with the reasoning given by the Trial Court in the said paragraph for not accepting the said fault criticism. 496. Thus after taking into consideration the aforesaid evidence we find that learned APP had rightly urged criticism made by learned counsel for accused persons that evidence of PW-15 is not reliable that the or worthy of credence as the same does not cogently establish that on the said day or on the day prior to the same not driving the taxi. That plea is based (a) on the surmises of his licence being not renewed, he was (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 She has rightly urged that PW15 being involved in the incident and having practically lost his PW 15. means of livelihood due to his taxi being substantially damaged and thus perplexed, his conduct of not immediately Police cannot be said to be fatal to arrive at such a conclusion more so because hardly rushing to the 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 no anxiety to hide any matter on his part denotes the same having ring of truth and that and absolutely 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 15, the presence of PW 15 at the spot is quite natural. Further, the material evidence of PW 15 is also PW 416 conf.5.0 9 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 identification of A3 made by him in the Court as well as in the parade, also deserves credence. regarding The
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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 reinforced in cross examination. The matters from his evidence are also found corroborated by is found 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 (A1), had told him that within 15 minutes he will come to the parking lot near Gateway of India side 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 passenger. of the said 499. The submission of learned APP that the evidence of PW-15 is again found corroborated by the evidence regarding the parking of taxi or the evidence of PW-16 revealing plausible reason for of PW-16 remembering driver i.e. who had earlier visited the parking lot and who had given note of Rs.10/- also the said taxi cannot to be improbable. The evidence of PW-16 is duly corroborated by the receipt issued by him and be said 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 to the prosecution case. Considering the fact that the matters stated by PW 16 having was fatal remained in the cross examination, we cannot discard his evidence. Hence, we find substance in unshattered the submission of learned APP that considering the evidence of PW-16, it cannot be said that he was a chance On the other hand, his evidence in terms reveals that he was most natural witness for the events witness. 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 down the theory of defence of PW-15 not driving the taxi on the relevant dates or the same itself knocks was by him to Rammani Mishra or that PW-15 being a witness planted by prosecution for suitable given 419 conf.5.0 9 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 park opposite Taj Hotel and the further events happened thereafter and time consumed therein and and that thereafter his statement was recorded by ACP while FIR Exh.P-309 and particularly complaint part therein that the same was recorded in between 13.45 hours to 14.20 hours and noting made of ACP revealing therein same being treated as FIR and the relevant aspect having remained unshattered, the evidence of the 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
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to accept the defence submission that PW 15 was not at the site much less was not driving the taxi on the said or had not driven the same on the earlier day. Needless to add there is absolutely no foundation for day the part of the said submission. We are unable to accept the said submission that presence of PW 15 at later the is doubtful due to recovery of batch of 420 conf.5.09 Rammani Mishra from the taxi. That fact by spot 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 1957 SC 614, wherein Hon'ble Apex Court while considering the question of Court insisting AIR 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 person may be proved by the testimony of a single witness, the innocence of an accused person accused of an 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 for proving or disproving a fact. Generally speaking, oral testimony in this context may necessary 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 wayit convict or may acquit on the testimony of a single witness, if it is found to be above reproach may 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 they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise when fact, only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh such a testimony and if it is satisfied that the evidence is reliable and free from all taints which carefully tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports may precedents where the court had to depend and act upon the testimony of a single witness contain 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 a participator in crime. But, where there are no such exceptional reasons operating, it becomes the that of duty court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We of the 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 witness cannot be considered to be either detrimental or fatal to the prosecution nor any adverse said inference prosecution is required to be drawn on that against the count.
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503. The learned APP by taking us through the reasoning recorded in paragraphs 231 to 238 of the judgment that the reason given therein for not accepting the evidence of PW-19 and 422 contended conf.5.09 particularly the identification of A1 and A3 made by him, is not sound. She urged that the evidence of PW19 terms reveals that on 28th August 2003 on his own he had been to the Police Station after reading the in 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 there was absolutely no reason to discard the evidence of the said person who had approached the Police fact, 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 in front of his factory on the relevant date and the one from which the big air bag of gray colour parked was out by rickshaw driver and he was followed by two ladies and one girl and then the said person taken 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 registrationthe rickshaw. Hence, we find force in the submission of learned A.P.P. that it was not for PW 19 number of to attention to registration number of the said rickshaw, but there was all probability to see and pay remember to whom he had told for parking the rickshaw at some other the person 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 to park the rickshaw elsewhere is not found shattered during the cross examination. Similarly driver - A1 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 hadfair opportunity to observe the said persons and Nasir A1 and A3 with whom he had come across no during the said incident. 507. Even the case regarding the answers surfaced during the cross examination of PW19 also reveals that he not seen full news on T.V. while at Surat. Furthermore, he categorically answered that after returning had 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. at Surat on 27.8.2003 he had come to know only about the 425 news conf.5.09
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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. regard to the said answers, it is difficult to countenance the finding of the trial court in discarding Having 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 reasons recorded in paragraph no.238. The prosecution has examined the said witness on the point the of having come across the taxi in question on the relevant day and then having seen one male passenger sitting front seat getting down and so also two ladies and one girl from the rear side and then himself on the havingsomeone from taxi calling him as Guptaji (PW 20) and having seen his friend PW15 Shivnarayan heard Pande towards him from the taxi. His evidence reveals that while chitchatting with PW15, the coming said passenger had told PW15 that he should take the taxi to pay and park area at Gateway of India. It also reveals was insisting PW15 to go early at the parking place. Therefore, PW 20 had told PW15 to go and he that 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 had lasted, the fractionary period for which attention of PW20 would have been drawn towards the same the passengers in the taxi, we do not find any fault with the reasons given by the trial court in paragraph no.238 of judgment for not accepting the identification of A1 and A3 made by PW20. However, in spite of the 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 blastoccurred at Gateway of India due to material containing explosives contained in the bag brought by had A1 kept in the dicky of taxi of PW15 which was parked at the said place. That also establishes that the and samean intentional act committed conjointly by encountered accused Nasir, A1 and A3. Such an was 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 Thus, the circumstances established by the aforesaid evidence form a formidable chain leading to aspect. 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 prosecution being bound to exclude only other reasonable hypothesis and not all evidence, the 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 squarelyinvolvement of the said accused amongst other in plantation of the said taxi laden with bag reveals containingmaterial at the said spot in pursuance to the conspiracy hatched Even the case regarding the explosive 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 of evidence on record and consequently convicting the said accused for offences committed by him, basis due commission of such acts in pursuance to the conspiracy hatched. to 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. terms, reveals object of the said conspiracy, the place of hatching the same, the place at which the It, in samecontinued and the activities committed by the said conspirators for achieving the said object and in was 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: "120Aefinition of criminal conspiracy- When two or more persons agree to do, or cause to be done- (1) an D 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 one or more parties to such agreement in pursuance is done by 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 aerm of two years or upwards, shall, where no express provision is made in this Code for the punishment t of a conspiracy, be punished in the same manner as if he had abetted such 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 = IR 1977 SC 2433 with regard to offence of conspiracy observed in para 9 to the A 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. not It is 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 the common goal of the conspiracy and there may be division of performances in the chain to achieve of actions with one object to achieve the real end of which every collaborator must be aware and in which each of them must be one interested."
516. The Apex Court in the case of State through Superintendent of Police, CBI / SIT etc. v. Nalini and ors reported in 1992 (2) RCR/(Crl.) 682 (SC) : 1999 (5) SCC 253 summarized the broad principles etc. governing conspiracy, with a rider that the said summary was not exhaustive of said principles as the law of 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 intentionthey agree that the crime be committed. It would not be enough for and did 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 conf.5.09 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
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left . 432 conf.5.09 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
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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 at the same time, but may be reached by successive actions evidencing their joining of the it 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 433 conf.5.09 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 collateral acts incidental to and growing out of the original purpose. but also to A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. of a conspiracy by The joinder 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
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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." 517. While in a case of Nazir Khan & Others v. State of Delhi reported in Citation : (2003)88 Supreme Court 461, the Hon'ble Apex Court observed in para-15, 17 & 18 as under: Para: Cases 15: No doubt, in the case of conspiracy there cannot be direct evidence. The ingredients of the offences are that should be an agreement between persons who are alleged to conspire and the said agreement should be there 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 occurrenceconsidered to decide about the complicity of the accused. have to be 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 date of formation of criminal conspiracy, about the persons who took part in the formation of about the 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 v. State of Kerala, 2000(4) RCR ( Crl.) 747 (SC) 378 held Saju : "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 crime of is merely incidental to that object. To attract the applicability of Section 120-B it has to of such be
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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 necessary that each member to a conspiracy must know all the detail of the not conspiracy." 435 conf.5.09 519. Applying the aforesaid principles expounded by the Apex Court, considering the evidence adduced by prosecution, it is apparent that the same squarely establishes the prosecution case stated in the charges and the 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 evidence of conspiracy adduced by the prosecution in the shape of the evidence of approver with direct 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 explosion in public vehicle BEST bus by planting a crude bomb made by means of gelatin sticks, alarm clock transport and detonators in BEST bus 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 bomb made by means of gelatin sticks, alarm clock and detonators in BEST bus bearing a crude registration no.MH-01-H-8246 for route No.340 near Ghatkopar on 28th July, 2003 causing extensive damage to the said and three auto-rickshaws and two motor-cycles and one Quallies Jeep and nearby buildings and death bus of persons and injuries to 60 persons. two (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 transport vehicle a motor taxi by planting a bomb made by means of RDX material and detonators public in motor taxi bearing registration no. MH-02-R-2022 at Zaveribazar near Mumbaidevi temple- market place on August, 2003 during the evening causing extensive damage to the said taxi and seven more 25th 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 omb made by means of RDX material and detonators in motor taxi bearing registration no. MH-02-Rb 2007 crowded place of Gateway of India causing extensive damage to the said taxi and seven more near 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.
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(viii) the involvement of encountered accused Nasir, A1 and A3 has been established in committing the said explosion . (ix) the explosive material such as gelatin sticks and 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 the same on the pretext of calling the customer to whom the luggage from the same was handed over left and STD booth of PW28 , a distance away from the said spot had given a call on the mobile phone of from Nasir bearing No.9892451164. (xiii) Each of A1, A2 and A3 soon after their arrest had made confession revealing practically the same reason of which the explosions were caused in Mumbai. (xiv) In spite of the investigation, no clue and because or evidence was received by the Police of anybody else was responsible for causing the said explosion and/or the being caused for any other reason than the one disclosed from the confession of the said accused. same (xv) Amongst other material, 92 gelatin sticks, 8 detonators, two alarm clocks and wire cutter were found in dicky of 800 Maruti Car by which encountered accused had been to the area of Ruparel College, the Matungathe i.e. 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 hatched to cause the serial explosions in Mumbai. The same is apparent from the fact of one conspiracy or more from the arrested accused and encountered accused figuring in commission of relevant acts which has to cause the said explosion. The same is also apparent from the modus of operation effected i.e. using led 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 A3 and Nasir who played key role in the and 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
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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, that of PW2, it leads to the inevitable conclusion that each of the said accused were 441 other than 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 blast in Mumbai, each of them has been rightly held guilty by the trial Court for commission of the bomb said offences in pursuance of the conspiracy. We are unable to find any fault with the said finding. As discussed learned defence counsel have not disputed the other facets i.e. the injuries caused to the persons, earlier, the 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 a terrorist act, the charge ought to have been specific to each incident and the concerned accused itself was having been found guilty of commission of the offence pertaining to respective incident ought to be sentenced The charge of conspiracy would be relevant to each of the incidents as well as being separately. substantivehatching conspiracy and of being a co- conspirator. For which, the concerned accused ought to offence of 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 respective accused in relation to specific incident and on the charge of conspiracy and abetment, of the 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 independently for the substantive offence of conspiracy and/or abetment. By doing so, no act and prejudice 443 conf.5.09 would be 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 urged that guidelines regarding giving extreme penalty of death are found in the decision of for A3 Bachan State of Punjab reported in AIR 1980 S.C. 898. He urged that in paragraph no.195 of the Singh vs. 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 is required to be given both to the crime committed and the criminal committing the same. It is regard urged the said process aggravating circumstances as well as the mitigating factors relevant to the crime that in 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 of the union or of a member of any police force or of any public servant and was forces committed----(i) while such member or public servant was on duty ; or (ii) in consequence of anything done or attempted to done by such member or public servant in the lawful discharge of his duty as such member or be public whether at the time of murder he was such member or public servant, as the case may be, or servant 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 requiring his assistance under Section 37 and Section 129 of the said his aid or 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. of U.P. reported in AIR 1979 SC 916 further observed in paragraph no.202 to the State 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 Our objection is only to the word "only". While it may be conceded that a murder which (6)." directly or has an extreme potentiality to harm or endanger the security of State and society, public threatens, order interests of the general public may provide "special reasons" to justify the imposition of the and the extreme on the person convicted of such a heinous murder, it is not possible to agree that imposition of penalty 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, reasonable and in the general public interest, do not offend Article 19 or its 'ethos' , nor do they in being any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Sec. 302, Penal fully apply to the case of Sec. 354 (3) Code of Criminal Procedure, also. The same criticism applies Code, to view taken in Bishnu Deo Shaw .v. State of West Bengal, (1979) 3 SCC 714, which follows the dictum the 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 of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability age that accused would not commit criminal acts of violence as would constitute a continuing threat to the society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove thataccused does not satisfy the conditions 3 and 4 above. the 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 are undoubtedly relevant circumstances and must be given great weight in the determination of these sentence. these factors like extreme youth can instead be of compelling importance. In several State of Some of India, are in force special enactments, according to which a 'child' that is, 'a person who at the date of there murder than 16 years of age' , cannot be tried, convicted and sentenced to death or imprisonment for life was less for murder nor dealt with according to the same criminal procedure as an adult. The special acts provide for aeformatory procedure for such juvenile offenders or r children." 530. The learned counsel thus contended that considering the said landmark decision and trend of decisions clearly indicate that (1) gravity of an offence though relevant has not been always thereafter 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 under the domination of her husband and his friend. He urged that in our country the wives acted always that it is their bounden duty to support and help their husbands. He urged that the said aspect considers 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 role i.e. either to accompany her husband or his friend while they had carried the bag containing limited the bomb. Though it is urged that she was involved in the preparation of bomb hardly any evidence has surfaced any active overt act committed by her in that regard. The evidence also does not indicate that to indicate she the main member either for hatching the conspiracy and/or executing the same. He urged that taking was 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 to be deserving extreme penalty. It was urged that the fact of cross-examination of the matter stated in said 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 repentanceleast hope for reformation being not and/or at lost. 532. He further urged that examining question of A3 warranted to be awarded death penalty; after considering role played by her in the conspiracy a fact will be required to be taken into consideration the peripheral that
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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. that socio economic conditions regarding concerned accused are always required to be taken into He urged consideration and in the event of there being a chance of rehabilitation of accused person, then he should notawarded extreme penalty of death. The learned counsel thereafter by making reference to the decision be in case of Santosh Kumar 449 the 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 sole factor upon which the question of imposing death penalty can be decided. He urged that the the role by the concerned accused is predominantly taken into consideration. He urged that extent of played 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. of Tamil Nadu reported in (1982) 2 SCC 350 urged that the same squarely reveals that in event of State 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 in the case of A3, her case would be covered by the said decision and as such awarding death sentence present to her would be improper. 535. The learned counsel thereafter by making reference to the decision in the case of Mohan and others vs. of T.N. reported in (1998) 5 SCC 336 and particularly the observations made in paragraph no. 8 of State the and so also the decision in the case of Suresh Chandra Bahri vs. State of Bihar reported in 1995 same SCC 60 urged that the said decisions also show the importance of mitigating circumstances to be taken (Cri) 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 main architect of the said conspiracy. It was urged that considering the evidence of approver, it is the crystal A1 was basically not criminal but was got webbed in a conspiracy due to having come across and clear that 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
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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 father. It was urged that fact of himself having confessed about the crime also reveals that even of their for the hope of reformation is not lost. It was urged that thus considering all circumstances relevant to him 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 harping upon the fact of said accused also having made confession, his age and the peripheral to A2 by role played by him being indicative that he was also an instrument in the hands of main conspirator deceasedNasir. accused 539. The learned APP repelled the aforesaid submissions by placing reliance upon the same decision in the of Bachan Singh (supra), and made exhaustive submissions by taking us through the relevant case paragraphs urged that even the said decision in terms reveals that there are some category of cases thereof. She which warrant imposition of extreme penalty. Learned APP thereafter pointed out that the decision of would 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 the offences under the ordinary law but under the POTA legislated to curb the menace of terrorism not from not only our country but the entire world has suffered in last two decades. She urged that existence which 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 cascading effect of causing death of law abiding citizens or injuries to them or loss of their property. the She that such acts which result in taking away and/or to disturb and/or to disrupt the life of law urged 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.44the same, she urged that the same squarely repels the submission of the defence counsel that in event from of evidence being that of approver, it would not be proper to awarded the death penalty. Inasmuch as in the the decision such a penalty has been awarded in spite of main prosecution evidence being that of said 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 incidentfailure of bomb and minor damage ensued due to the explosion occurred at Ghatkopar, the due to culprits
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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 to the Police or showed repentence. She urged that in the said backdrop, merely because culprits been had a confession after the serious blasts consequent to their arrest, it cannot be construed as a circumstance made 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 oman, would not be a ground for not awarding a death penalty. She urged that in the said case having w 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 after taking into consideration all relevant circumstances qua the accused. She urged even on the penalty said after considering the circumstances A1 to A3 deserves to be awarded death penalty basis considering crime committed by them due to enormity of vengence. 544. The learned APP thereafter by placing reliance upon the decision in the case of Dhananjoy Chatterrjeeof W.B. reported in (1994) 2 SCC 220 and particularly the discussion in paragraph nos. .vs. State 10,11,14therein urged that the death penalty was awarded to the culprit who was security guard had and 15 committed innocent and defence less young girl of 18 years and thereafter committed preplanned cold rape on an bloodedof the said victim. Learned APP laid her finger on the observations made in paragraph no.15 of murder the decision to the effect : "15. In our opinion, the measure of punishment in a given case must depend said 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 the criminals. Justice demands that courts should impose punishment befitting the crime so that against the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal the rights of the victim of crime and the society at large while considering imposition of but also 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 SCCurged that delay in the execution of death sentence awarded and present proceeding involving 344 the question of confirmation or otherwise of death sentence awarded by trial court subject to confirmation of the by this court, the passage of time in between would never be a ground for not confirming the same 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 regarding the aspect of awarding death penalty it appears proper to recite relevant matters from Court the decision in the case of Macchi Singh vs. State of Punjab reported in AIR 1983 SC 957. In this decision, on the
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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 bound by the shackles of this doctrine. Secondly, it has to be realised that every member of itself 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 Every member of the community owes a debt to the community for this protection. When ingratitude ends. is shown instead of gratitude by 'killing' a member of the community which protects the murderer himself from killed, or when the community feels that for the sake of self preservation the killer has to be killed, being 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 when its collective conscience is so shocked that it will expect the holders of the judicial power cases) 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 motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the the crime, for instance: (1) Manner of Commission of Murder : When the murder is committed in an such as 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 This would also cover bride burning and dowry death wrath. cases; (4) Magnitude of crime : When the crime is enormous in proportion, for instance, when multiple murders say or almost all the members of a family or a large number of persons of a particular caste, community of all 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 ublic figure. If upon taking an overall global view of all the circumstances in the light of the p aforesaid propositions and taking into account the answers to the questions posed hereinabove, the circumstances of the are such that death sentence is warranted, the court must proceed to do so." case 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 Singh's 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 Singh's 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 the circumstances of the along with '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 death sentence ? and calls for (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, Prasad and Machhi Singh (supra) and so also in the case of Mohan and others (supra), Rajendra 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 context, we also find force in the submission of learned APP that all the said decisions pointed by same 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 Terrorists Laws i.e. POTA. The gravity of the said offence is known to be enormous. We offences under also force in her submission that by and large the offences under Terrorists Law are the aggravated form find 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 thatsaid aspect cannot be lost sight of. the 549. Similarly, after considering the decision pointed by her in the case of Narayan Chetanram Chaudhary same repels the defence submission that upon the evidence of approver awarding of death (supra), the penalty is not warranted. Needless to add that the said decision itself reveals that even upon such evidence and in the of the circumstances of the case, a death penalty could be awarded. Similarly, considering light another in the case of Renukabai (supra) pointed by her we find substance in her submission that it is not decision as in a fit case, such a sentence cannot be awarded to a woman accused. So also the decision in the case if, 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 by the defence counsel is misplaced. In our view, there is no legal evidence on record that (supra) 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 was not due to the said sole reason but other factors were also taken into consideration for reducing same 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 accused found involved in the conspiracy and not large number of an accused such as 26 as were qua three 463 conf.5.09 involved in the case of Nalini (supra), we are of the considered opinion that method followed by the Apex in the said case of classifying the accused in four different categories qua the role played by them in Court the offence of conspiracy for which they were found guilty or for commission of an offences in pursuance of the conspiracy; will not be of any avail. Instead, the question of quantum of sentence in this case will said 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, weapon, the use of which creates a high simultaneous risk of death or injury to more than one or like person has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating is possible.. But this much can be said that in order to qualify for inclusion in the category circumstances of "aggravating circumstances" which may form the basis of 'special reasons' in Section 354 (3), circumstance facts of a particular case, must evidence aggravation of an abnormal or special found on the degree." 464 conf.5.09 553. Without once again enlisting each of the aspect pertaining to the the acts and offences committed by A1, and A3 in pursuance of the conspiracy hatched as established by the prosecution evidence, it can be A2 safelythat the evidence has established that A1 and A2 were members of terrorists said organization Lashkar-E-Toyaba. The acts committed by them were not outcome of any momentary pulse of the weaknessbut were committed by them out of well designed conspiracy/plan hatched. A1 for the said of mind 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 2003. The evidence also reveals that after observing the results ensued out of the said explosion July, 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
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remorse or repentence by any of them. Though it is true that A1, A2 and A3 had made the confessions, it was after their arrest. At any rate, the significance of the said circumstance is lost due to 465 only 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, any fault in the sentence imposed upon them by the trial we do not find 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 emotional disturbance but in a well planned manner in furtherance of criminal conspiracy mental or 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 accusedto A3 have shown repentence at the earliest opportunity but continued to work on intensifying i.e. A1 their 466 conf.5.09 destructive activity by causing more high intensity blasts, coupled with the fact that there is no probability of of these accused being reformed and rehabilitated. In that, not satisfied with the outcome of the incident any 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 Lakhs). The inevitable conclusion is that it is a rarest of rare case, deserving extreme Sixty 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. Abdul Rahim, Accused No.2 Ashrat @ Arshad Shafique Ahmed Ansari and Accused No. 3 Hanif 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 recorded by the Trial Court, the said accused No.1 Sayyed 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 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 R.I for 2 years and pay a fine of Rs to suffer 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.5.0 9 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/-. in substitution of Order of Conviction and sentence recorded by the Trial Court, the (ii) Similarly, 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 guilty and convicted for commission of offence found 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 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) neck SectionI.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 307 of R.I 3 years. for 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 pay a fine of and Rs.5000/-. (f) Section 4 of Prevention Of Damage to Public Property Act 1984 and is sentenced to suffer R.I for 10 years pay a fine of and 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 and convicted for commission of offence guilty 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.
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(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 in default to suffer R.I for 2 and 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 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. (iii) Similarly in substitution of Order of Conviction and sentence recorded by the Trial Court the said accused the acts committed by him on 25th August 2003 along with co conspirator in causing explosion No 2 for 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 Indian Kanoon - http://indiankanoon.org/doc/126463415/ 181
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 pay a fine of Rs and 5000. (f) Section 4 of Prevention Of Damage to Public Property Act 1984 and is sentenced to suffer R.I for 10 years pay a fine of and 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 alongAccused No 2 Ashrat in causing explosion by planting a bomb in BEST Bus No MH-01-H 8246 with 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 till she is dead and is ordered to pay a fine of Rs.5000/- and in default, to suffer R.I for 3 neck 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 3ears. y (e) Section 3 of Prevention Of Damage to Public Property Act 1984 and is sentenced to suffer R.I. for 5 years pay a fine of and Rs.5000/-.
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(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 the acts committed by her on 25th August 2003 along with Accused No.1 Sayyad Mohd Hanif No.3 for 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 till she is dead and is ordered to pay a fine of Rs.5000/- and in default, to suffer R.I. for 3 years. neck (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 till she is dead and is ordered to pay fine of Rs.50,000/- and in default, to suffer R.I. for 3 neck years. (e) Section 3 of Prevention Of Damage to Public Property Act 1984 and is sentenced to suffer R.I. for 5 years pay a fine of Rs. and 5000/-. (f) Section 4 of Prevention Of Damage to Public Property Act 1984 and is sentenced to suffer R.I. for 10 years pay a fine of and 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 necessary steps to ensure that free copy of the Judgment is delivered to the said accused forthwith. II. take 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 is hereby dismissed. 478 conf.5.09 (2) The Criminal Appeal No 857 of 2009 preferred by aforesaid Accused No.2 Ashrat @ Arshad Shafique Ansari Ahmed 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) Actrespect of Accused No 4 Mohammed Hassan Mohammed Anas Shaikh @ Hasan in 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 regardingoffences is hereby quashed and set aside with direction to the parties in Writ Petition No.2539 all other of 2008 to appear before POTA Special Court within four weeks from the date of this order for proceeding the against 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 Courtregard to withdrawal of entire prosecution against Accused No.4 Mohammed Hassan Mohammed with Anas @ Hasan Bateriwala (Charge-sheeted Accused No.5)and Accused No.5 Mohd Rizwan Mohd Shaikh Issaq @ Rizwan Ladoowala (Charge-sheeted Accused No.6) is hereby quashed and set aside with Ansari directions accused to appear before the POTA Special Court within four weeks from the date of this to the said orderdirection to the said court to proceed against the said Accused in respect of all other offences (except with 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 against above named A4 and A5 from the stage ante passing of the order dated 17th November, 2008 trial andproceed against them in accordance with law in the light of this order. 480 to 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.)
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Gateway of India Blast Case - Court Verdict

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Bombay High Court Bombay High Court The State Of Maharashtra vs Sayeed Mohd.

WRIT PETITION NO.2539 OF 2008 The State of Maharashtra (Ori.Opponent) versus

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property of value to the tune of Rs. 16.30 lacs

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