93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 027

Criminal Appeal No.365 of 2008

Mohammed Shoeb Mohammed

Kasam Ghansar (A-9) ….. Appellant(s)

vs

The State of Maharashtra,

Through STF, CBI Mumbai …. Respondent(s)

 **********

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

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

Charges:

334) A common charge of conspiracy was framed against all the co- conspirators including the appellant (A-9). The relevant portion of the charge is reproduced hereunder:-

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

At head secondly; the appellant (A-9) committed an offence punishable under Section 3(3) of TADA by doing the following overt acts:

i) Participated in landing of arms and explosives at Shekhadi Coast, Raigad District along with co-conspirators on the 3rd and 7th of February, 1993;

ii) facilitated the escape of Tiger Memon (AA) by fetching his ticket and passport from the house of Mobina (A-96) and by obtaining his boarding pass on the morning of 12.03.1993, at Sahar Airport; and

iii) actively participated in preparation of vehicle bombs in the night intervening 11th/12th March, 1993 at Al-Hussaini Building.

At head thirdly; on 12.03.1993, the appellant (A-9), parked a scooter laden with explosives and fitted with a time device detonator in Zaveri Bazaar, which exploded killing 17 persons, injuring 57 persons and causing loss of property to the tune of Rs.1.20 crores and thereby committed an offence under Section 3(2)(i)(ii) of TADA.

At head fourthly; for the aforesaid act mentioned in charge thirdly, the appellant (A-9) committed an offence punishable under Section 302 IPC.

At head fifthly; for the aforesaid act mentioned in charge thirdly, the appellant (A-9), committed an offence punishable under Section 307 IPC by injuring 57 persons.

At head sixthly; the appellant (A-9), by causing the aforesaid explosion which resulted in grievous hurt to 9 persons committed an offence punishable under Section 326 IPC.

At head seventhly; the appellant (A-9), by causing the aforesaid explosion and voluntarily causing hurt to 48 persons committed an offence punishable under Section 324 IPC.

At head eighthly; the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs. 1.2 crores committed an offence punishable under Section 435 IPC.

At head ninthly; the appellant (A-9), by causing the aforesaid explosion, which resulted into damage to the properties worth Rs. 1.2 crores committed an offence punishable under Section 436 IPC.

At head tenthly; the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 3 of the Explosive Substances Act, 1908.

At head eleventhly; the appellant (A-9), by causing the aforesaid explosion at Zaveri Bazaar which resulted into death, injuries and destruction of properties, also committed an offence punishable under Section 4(b) of the Explosive Substances Act, 1908.

At head twelfthly; the appellant (A-9), in pursuance of the conspiracy and in contravention of rules made under Section 5 of the Explosives Act,1884 without licence having possessed and used RDX, committed an offence punishable under Section 9-B (1)(b) of the said Act.

At head thirteenthly; the appellant (A-9), in pursuance of the said conspiracy, on 12.03.1993, in the afternoon, having abetted and knowingly facilitated terrorist act i.e. the explosion at Centaur Hotel Juhu, Centaur Hotel at Airport and Hotel Sea Rock at Bandra committed by the co-conspirator i.e. Mohammed Mushtaq Moosa Tarani (A-

44), Parvez Nazir Ahmed Shaikh (A-12) and Anwar Theba (AA) by planting explosive laden suitcases in the rooms of the said hotels respectively and yourself by accompanying them and A-10 in a Maruti Van bearing No. MFC-1972 on their way for planting the said suitcases in the said hotels with intent to commit the terrorist act, committed an offence punishable under Section 3(3) of TADA.

At head fourteenthly; the appellant (A-9), for the aforesaid act mentioned in charge thirteenthly, committed an offence punishable under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.

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

Conviction and Sentence:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

336) The evidence against the appellant is in the form of:-

(i) his own confession;

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

(iii) testimonies of prosecution witnesses; and

(iv) documentary evidence on record.

Conspiracy

337) As mentioned above, a common charge of conspiracy has been framed against all the accused persons and in order to bring home the charge, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer to the same once again.

Confessional Statement of the appellant – Mohammed Shoeb Mohammed Kasam Ghansar (A-9)

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

(i) In the night of 11.03.1993, on being asked by Asgar Yusuf Mukadam (A-

10), the appellant went to Sahar Airport along with him and got a boarding card issued for Tiger Memon.

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

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

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

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

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

(vii) 3 VIP Bags were collected by A-12 and A-10 from the garage at the Al-

Hussaini building and then they along with the appellant (A-9) went to the residence of Anwar Theba (AA) to pick him up.

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

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

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

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

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

339) From a perusal of the entire confession, it is established that the appellant was fully aware and conscious of the overt acts committed by him. The above stated facts are established from the admission of his guilt that after planting the bomb at Zaveri Bazaar, he begged for forgiveness for his sins from ‘Allah’ (the Almighty God) and that even at the time of getting the boarding pass of Tiger Memon, he was conscious and cautious that he was facilitating, aiding and abetting a terrorist in fleeing from the country, and accordingly, the appellant enquired from A-10 at the Airport as to ‘what will happen if anyone catches him’. The guilt of the appellant (A-9) is proved from his confession and it is established that he knew that his actions were wrong and illegal. The appellant consciously joined the conspiracy and committed overt acts in furtherance of the conspiracy. He was well aware of the consequences of his actions and the actions of other co-conspirators.

Confessional Statements of co-accused:

340) Apart from his own confession, the involvement of the appellant (A-9) has also been disclosed in the confessional statements of the following co- accused. The legality and acceptability of the confessions of the co- accused has been considered by us in the earlier part of our discussion. The said confessions insofar as they refer to the appellant are summarized hereinbelow:

Confessional Statement of Asgar Yusuf Mukadam (A-10) Confessional statement of A-10 under Section 15 of TADA has been recorded on 20.04.1993 and 23.04.1993 (18:00 hrs.), by Shri K.L. Bishnoi, the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-9):

(i) In the night of 11.03.1993, the appellant booked the luggage of Tiger Memon and obtained his boarding card at the Airport for his departure to Dubai.

(ii) The appellant (A-9), accompanied by A-10 and A-12, disposed of the plastic bags in a wastage van of BMC which contained the empty boxes of explosives.

(iii) The appellant (A-9), accompanied by A-10 and A-12, picked up three VIP bags loaded with explosives from the garage at the Al-Hussaini building and took them to the residence of Anwar Theba (AA) where Anwar fitted the detonators in these suitcases and thereafter, the bags were taken away by A-12, A-44 and Anwar Theba (AA) to Hotel Sea Rock, Hotel Centaur Juhu and Hotel Centaur Airport respectively.

(iv) The appellant (A-9), on being asked by A-10, drove the scooter laden with explosives on the instructions of Anwar Theba (AA) and parked it at a crowded place in Zaveri Bazaar which later exploded killing 17 persons and injuring 57 others.

Confessional Statement of Abdul Gani Ismail Turk (A-11) Confessional statement of A-11 under Section 15 of TADA has been recorded on 15.04.1993 and 18.04.1993 by Shri P.K. Jain, the then DCP, Zone III, Bombay. A-11, in his confession, has stated that the appellant (A-9) was present at Al-Hussaini Building in the night of 11.03.1993 along with other co-accused, namely, Bashir Ahmed Usman Gani Khairulla (A-13), Parvez Nazir Ahmed Shaikh (A-12), Md. Shafi, Anwar Theba (AA), Javed Chikna (AA) and he filled the chemical (black soap) in the vehicles which were to be planted as bombs. He further stated as follows:

“…..After sometime Shafi, Anwar, Javed Chikna, Bashir, Parvez, Shoeb and 10/12 boys assembled there. All people came in the garage of Al-

Hussaini Building and all of them filled chemical @ black soap in a number of vehicles….” Confessional Statement of Parvez Nazir Ahmed Shaikh (A-12) Confessional statement of A-12 under Section 15 of TADA has been recorded on 18.04.1993 and 21.04.1993 (06.50 hrs), by Shri P.K. Jain, the then DCP, Zone III, Bombay. The following facts emerge from the abovesaid confession with regard to the appellant (A-9):

(i) The appellant (A-9) was present at the Al-Hussaini building on the night of 11.03.1993 along with other co-conspirators when the work of filling the black chemical (RDX) into the vehicles to be planted as bombs in Bombay was being done. The said black chemical was brought from Shekhadi which was landed on 03.02.1993.

(ii) The chemical was packed in cardboard boxes and pieces of iron were also added to it.

(iii) In the morning of 12.03.1993, on the instructions of Anwar Theba (AA), the appellant (A-9), along with A-10 and A-12, threw 5-6 plastic bags in a wastage van of BMC at Bandra which contained the empty cardboard boxes of the explosives.

(iv) A-12 further stated as follows:

“And then at about 10.30 o’ clock, Asgar came back to my house with Shoaib in the same red coloured van and we three came at Al-

Hussaini. From there, we reached to the house of Anwar taking the three Suit cases (big briefcase) which were kept in the garage, by Maruti van, where we met Anwar and Mushtaq whose hair were curly. They both came and sat in the car, before starting the car Anwar opened the bag and pierced the article just like pencil into the chemical and closed the bags.”

(v) The appellant (A-9), along with A-10, came to the house of A-12 on 13.03.1993 and discussed about the blasts that had occurred on 12.03.1993.

Confessional Statement of Imtiyaz Yunusmiyan Ghavate (A-15) Confessional statement of A-15 under Section 15 of TADA has been recorded on 07.05.1993 and 09.05.1993 (13.30 hrs.), by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. The following facts emerge from the confessional statement of A-15:

(i) The appellant (A-9) was seated in the maroon coloured Maruti Van along with A-10 and A-12 on 12.03.1993 and all of them drove to the house of Anwar Theba (AA) to collect the three suitcases.

(ii) On 12.03.1993, A-9, along with A-10, came to the Al-Hussaini Building in a Maruti Van.

(iii) In the presence of the appellant (A-9), Anwar Theba (AA) inserted timer pencil detonators in the dicky of scooters laden with explosives which were later planted as bombs.

(iv) The appellant drove a scooter laden with explosives and fitted with pencil detonators on 12.03.1993.

Confessional Statement of Mohd. Mushtaq Moosa Tarani (A-44) Confessional statement of A-44 under Section 15 of TADA has been recorded on 26.05.1993 and 22.05.1993 (10.00 hrs.), by Shri K.L. Bishnoi (PW-193), the then DCP, Zone III, Bombay. In his confessional statement, he stated that on 12.03.1993, A-9 and A-15 came to the residence of Anwar Theba (AA) in a Maroon coloured car driven by A-10.

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

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

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

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

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

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

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

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

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

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

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

344) The prosecution has relied upon the evidence of several prosecution witnesses to establish the involvement of the appellant (A-9) in the conspiracy. The relevant facts emerge from the deposition of witnesses incriminating the appellant have been enumerated below: Eye-witnesses:

FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:

93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:

Part 001 / Part 002 / Part 003 / Part 004 / Part 005 / Part 006 / Part 007 / Part 008 / Part 009 / Part 010 / Part 011 / Part 012 / Part 013 / Part 014 / Part 015 / Part 016 / Part 017 / Part 018 / Part 019 / Part 020 / Part 021 / Part 022 / Part 023 / Part 024 / Part 025 / Part 026 / Part 027 / Part 028 / Part 029 / Part 030 / Part 031 / Part 032 / Part 033 / Part 034 / Part 035 / Part 036 / Part 037 / Part 038 / Part 039 / Part 040 / Part 041 / Part 042 / Part 043 / Part 044 / Part 045

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TAGS:

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