357) As mentioned above, a common charge of conspiracy was 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 – Abdul Gani Ismail Turk (A-11)
358) Confessional statement of the appellant (A-11) under Section 15 of TADA has been recorded on 15.04.1993, by Shri Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. The following facts emerge from the confession of the appellant:
(i) He knew that Tiger was a smuggler but he still joined him and used to perform the work of delivery/bringing of Hawala money.
(ii) He knew that Asgar Yusuf Mukadam (A-10), Imtiyaz Yunus Miyan Ghavate (A-15), Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Anwar (AA), Parvez Nazir Ahmed Shaikh (A-12) and the fact that they were working with Tiger.
(iii) He used to bring money from Mulchand Sampatraj Shah @ Choksi (A-97) of Zaveri Bazaar.
(iv) He took part in landings of silver at Mhasla, Shekhadi where Jeeps of Raju Laxmichand Jain @ Raju Kodi (A-26) were used for transportation.
(v) On 27/28 January, on being called by Shafi, he visited the Al-Hussaini Building, where Tiger, Anwar Theba (AA), Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Imityaz Yunus Miyan Ghavate (A-15), Parvez Nazir Ahmed Shaikh (A-12), Yakub Abdul Razak Memon (A-1) and his wife were also present.
(vi) On 27/28 January, 1993, he left for Mhasla alongwith Tiger, Anwar Theba (AA), Imtiyaz Yunus Miyan Ghavate (A-15), Shafi, Mohammed Rafiq @ Rafiq Madi Musa Biyariwala (A-46) and Parvez Nazir Ahmed Shaikh (A-12) and from there he went to Shekhadi.
(vii) As there was no landing for 2-3 days, he stayed at Hotel Vaisava alongwith co-accused.
(viii) He stayed along with others at Hotel Big Splash, Alibaugh on 31.01.1993 where other gang members also joined them.
(ix) On 02/03.02.1993, late at night, he alongwith co-accused Imtiyaz Yunus Miyan Ghavate (A-15) and other 4-5 persons went to Waghani Tower by jeep.
(x) He had seen 70-80 boxes of black coloured chemical, 250 – 500 hand grenades, 15-20 big pistols, 60-70 big rifles, electronic wires, magazines and rounds when the boxes were brought to the Tower by Tiger Memon and his men. Those items were also checked by Tiger.
(xi) All the smuggled contraband was loaded in the jeeps, tempo and van after their packing in the presence of the appellant (A-11).
(xii) The jeep of Raju Kodi (A-26) was also used for transportation of arms and ammunitions and RDX explosives.
(xiii) He also brought one such jeep of Raju Kodi to Bombay via Khandala and left it at Anwar’s residence as per Tiger’s instructions and dropped the other co-accused at Bandra before leaving the vehicle.
(xiv) He came to know about the object of smuggling of arms and ammunitions from the conversation of co-accused. He knew that this was being done to take revenge for the suffering of Muslims in the riots.
(xv) He visited A-15’s residence and as per the instructions of Anwar Theba (AA), he brought the jeep to the residence of Amjad and handed over 3 bags containing wire bundles and bullets to him. He (A-11) parked the jeep there.
(xvi) He visited Tiger Memon’s (AA) house after 04.02.1993 and accompanied him to the house of Anwar Theba (AA) and met Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28), who had a tempo with them.
(xvii) He received Rs. 1 lakh from Tiger Memon to be paid to Dawood @ Dawood Taklya Mohammed Phanse @ Phanasmiyan (A-14). He also received instructions to bring ‘black soap’ and to go along with Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28) using a tempo available with them. He knew that the ‘black soap’ was the same material which was brought at Tower on 03.02.1993.
(xviii) He left for Mhasla along with Suleman Mohammed Kasam Ghavate (A-18) and Sayyed Abdul Rehman Shaikh (A-28) for the said purpose. (xix) He reached Mhasla in the morning and as instructed, contacted Dawood Taklya (A-14) and paid Rs. 1 lakh to him.
(xx) He loaded 59 bags in the tempo and left for Bombay. On the way, he met Tiger Memon.
(xxi) On 07.03.1993, he accompanied Tiger and Shafi (AA) to Bandra and then went to the residence of Mobina (A-96) as per Tiger’s instructions.
(xxii) At Mobina’s place, he gave his scooter to Shafi. Other persons also went to the residence of Mobina.
(xxiii) On 08.03.1993, he accompanied Tiger Memon to Mobina’s residence.
(xxiv) He accompanied Shafi to Jogeshwari in a Commander Jeep. He had seen Shafi with a bag in which 2 rifles, 4-6 hand-grenades and some rounds were kept.
(xxv) He then accompanied Shafi to the residence of Mobina (A-96). (xxvi) He went to Mahad in a Jeep along with 3 other co-accused, out of them, one was Bashir Ahmed Usman Gani Khairulla (A-13) and waited at Hotel Vasava for Tiger as per his instructions. Tiger Memon, Javed Chikna (AA), Sharif Abdul Gafoor Parkar @ Dadabhai (A-17), Sardar Shawali Khan (A-54) and three other persons came there after sometime.
(xxvii) In his presence, Tiger threw hand-grenades and imparted training in firing to the co-accused at Sandheri.
(xxviii) He accompanied the co-accused to Sandheri and waited till they did firing practice.
(xxix) He also accompanied the co-accused to Bombay and dropped them at Mahim slope. The Jeep was parked at Shahnaz Hotel and keys of the jeep were given to Tiger’s parents.
(xxx) He knew about the planting of suitcases in the hotels and the filling of RDX by the co-accused.
(xxxi) He knew that Maruti van was used for carrying RDX filled suit cases for planting the same in hotels. This van was also used for throwing of empty gunny bags and boxes etc. immediately after they were emptied.
(xxxii) He participated in the filling of RDX in the vehicles along with the other co-accused persons. One Jeep, two Maruti cars, one Maruti van, one Ambassador car and 5 scooters were filled with RDX under the supervision of Tiger Memon (AA) and Javed Chikna (AA).
(xxxiii) He accompanied Shafi to his residence and they brought 2 new scooters to the Al-Hussaini building. He again brought one more scooter with Shafi.
(xxxiv) Timer pencils were inserted by the co-accused Anwar Theba (AA) and 2 others in the RDX which was filled in the vehicles in his presence.
(xxxv) He planted the RDX-laden Commander Jeep at Passport office, Worli, Bombay.
(xxxvi) He had knowledge about the smuggling of chemicals and weapons for taking revenge and also about the consequences on account of use of RDX.
359) From the above confession, it is clear that the appellant (A-11) was a close associate of Tiger Memon. He had full knowledge of all the facets of the conspiracy and played an active part in the landing and transportation of RDX and other contrabands and making of suitcase and vehicle bombs. He planted a jeep containing a bomb at Century Bazaar. He was involved in all the stages of conspiratorial design. It is thus established from his own confession that he played an important and active role in the conspiracy.
360) Ms. Farhana Shah, learned counsel for the appellant (A-11) contended that a perusal of his confession shows that he was only an employee (driver) of Tiger Memon and was used only for transportation of goods and had no role in the conspiracy. It was submitted by the prosecution that he (A-11) knew that Tiger Memon was a criminal and he also used to take delivery on behalf of Tiger Memon in the hawala transactions and also participated in the smuggling of silver ignots. On 27/28 January, he went to take delivery of arms and ammunitions and explosives along with other accused. When the landing was delayed by 2-3 days, he stayed in a hotel along with others. The appellant (A-11) has admitted in his confession that he had seen 70 – 80 boxes of black coloured chemical, 250 – 500 hand- grenades, 15-20 big pistols, 60-70 big rifles, electronic wires, magazines and rounds at the time of landing that took place on 02/03.03.1993 at Waghani Tower. From the confessional statement of the appellant (A-11), it can be concluded that he was an integral part of the conspiracy and was a very close associate of Tiger Memon and not merely an innocent servant who knew nothing about the actions of his master. It is also evident from the fact that in his confessional statement, he has stated that he knew the object of the smuggling of arms and ammunitions, which in his words was “to take revenge of the suffering of Muslims”.
361) It has also been contended on behalf of the appellant that Section 15 of TADA has not been complied with and the warning required to be given was not given. However, a perusal of the same shows that the officer had asked the appellant (A-11) if he was aware that the confession to be made by him can be used as evidence against him in the Court. The accused had answered the aforesaid question in affirmative. The questions that were asked while recording the first part of the confession were:
“whether he has any complaint against anybody?
Ans. No. Q. Whether anyone has put any kind of pressure on you to make this confessional statement?
Ans. No. Q. Whether you have been given any kind of allurement or threat? Ans. No. Q. Do you want to make your confessional statement/ statement willingly?
Q. Whether you understand that you are not bound to make this statement/confessional statement?
Q. Whether you understand that it may be produced in the court as an evidence against you in case you confess?
Q. After this you will be kept at place other than the custody of Tapasi Officer. Whether you know this?
Q. Do you still desire to make a confession ?
Q. I do not wish to record your statement forcibly or under any pressure and I, therefore, give you time of 48 hours to think over the same. During this you will be kept at place other than the custody of Tapasi Officer. Whether have you understood this?
Ans. Yes.” Before recording the second part of the confession, the officer asked the following questions to the appellant. The questions and answers are quoted below:
“Q. On 15.4.93, you were produced before me and on that day you were given time of 48 hours to think over before recording the statement. That time limit has been expired, have you thought it over? Ans. Yes.
Q. Whether you are under any pressure or you have been given any threat or allurement to make this confessional statement? Ans. No. Q. Whether you know that, if you make any confession, then it may be produced in the court as an evidence against you?
Ans. Yes.” The above quoted conversation shows that the appellant (A-11) had been given due warning by the officer recording the statement that his statement can be used against him. He had also been asked if there was any coercion or threat due to which he was giving his confessional statement. The questions and answers establish that the confession made by the appellant (A-11) was voluntary.
362) It has also been contended by the side of the appellant that a part of the confession was made after two months and, hence, it is a manipulated confession. This contention of the appellant (A-11) is devoid of any merit. The second confession has been discarded by the trial court and the prosecution has also not pressed into service that confession before this Court.
363) Learned counsel for the appellant (A-11) has further contended that the confession of the appellant (A-11) was recorded in the odd hours of the night. It is pointed out by the prosecution that this fact could be elicited from the officer recording the confession, who was the best person to answer the query. It was also highlighted that it was not as a matter of routine that the confessions were recorded late at night and only a few confessions have been recorded in the late hours which could have been explained by the recording officer, if he was given an opportunity to explain in the cross examination.
364) The said confession was sought to be retracted on 11.01.1994. It is pointed out by the side of the prosecution that the material contained in the retraction statement is vague. It does not give any details or particulars. The said retraction statement fails to pin point the reason behind the failure of concerned accused to make any complaint to the authority- higher police officers or any other authority including Court regarding his signatures being obtained on blank papers and/or the papers containing some typed material and the reason behind himself being forced to effect the said signatures. It may also be noted that retraction was not made at the first available opportunity by the accused person. After arrest, the accused persons were brought before the court number of times in 1993 and 1994 and the retraction was made many months after making of the confession. From the above discussion, it is established that the confession of the appellant (A-11) was truthful and voluntary. It has also been demonstrated that the requirements of Section 15 of TADA have been complied with. Hence the confession of the appellant (A-11) is admissible as substantive evidence.
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
Supreme Court Of India, Yakub Abdul Razak Memon, Death Sentence, Confirmed, Sentence, Appeal, Dawood Ibrahim, Tiger Momon, 93 Bomb Blast, Mumbai Bomb Blast, Don, Gangster, Mafia, Sanjay Dutt, Death Penalty, Serial Blast, Mumbai, maharashtra, India, State Of Maharashtra, CBI, Prosecution, Babri Masjid, Ayodhya, demolition, violence, terrorist, Bombay, arms, ammunitions, conspiracy, Dubai, Pakistan, training, Bombay Stock Exchange, Katha Bazaar, Sena Bhavan, Century Bazaar, Mahim Causeway, Air India Building, Zaveri Bazaar, Hotel Sea Rock, Plaza Theatre, Juhu Centaur Hotel, AirPort Bay-54, AirPort Centaur Hotel, terrorist attack, terror, RDX, Research Department Explosive, Md. Ahmed Dosa, Md. Salim Mira Moiddin Shaikh @ Salim Kutta, Md. Kasam Lajpuria, Ranjitkumar Singh Baleshwar Prasad, Md. Sultan Sayyed, Dighi Jetty, Raigad, Uttan,