Role of Police Officers:
458) In a civilized era, every country is governed by Rule of Law and the primary concern of the Rule of law is promotion of human rights of the people and protection of their civil, political, social, economic and cultural rights. The Constitution of our country has entrusted substantial duty to the impartial police department for safeguarding and upholding rule of law; whose essential duty is to preserve peace and maintain order in the society.
459) The role of police officials has become more vital in the present century owing to the frequent terror attacks occurring across the country. Terrorism is spreading across the border and there is increasing reliance on explosive devices to spread terror. It is important to take note of increasing use of explosive devices by the terrorists not only because of their high damage potential but also due to their easy mobility. Explosive devices can be manufactured, transported, handled and fitted with a variety of unsuspecting objects multiplying their potential manifold. Thus, the police have a specific and special role, a duty and a responsibility, to curb the conveyance of explosives by vigilant patrolling and search and seizure, if required. Section 20 of the Arms Act, 1959 empowers them to arrest persons conveying any arms or ammunitions under suspicious circumstances.
460) Unfortunately, in the present case the police officers themselves have taken active part in smuggling and transportation of arms and explosives in Bombay.
461) The twin duties of police are prevention of crime and maintenance of law and order. If crimes are prevented in time, the human rights of the people will be protected to a large extent. If the Bombay police officials had been able to curtail the conveyance of the contraband in January and February 1993, the occurrence of 12th March 1993 could have been avoided.
462) With regard to the facts and circumstances of the case in hand, the role played by police personnel of different ranks can be summarized as under:-
(1) A-116, who was Sub. Inspector Incharge of Shreevardhan Police Station and had jurisdiction over Shekhadi and Dighi Jetty, where illegal landings of arms and explosives took places and 7 Constables, viz., A- 101, A-70, A-110, A-99, A-83, A-84 and A-87, posted in the same Police Station, connived and took active part in smuggling of arms and explosives at Dighi Jetty on 09.01.1993.
(2) Confessions of A-30, A-82, A-134 and A-136 as also the depositions of PW-94, PW-97, PW-158, PW-159, PW-160, PW-161, PW-162 and PW-167 prove their role in the said landing and transportation of smuggled arms etc.
(3) A-116, alongwith 7 Constables intercepted the convoy carrying smuggled contraband, on the night of 09.01.1993. A-116 held negotiations with A-134 and A-136 with the help and assistance of A-30 and Customs Officer Gurav (A-82) and permitted them to proceed after retaining five silver bricks as security against the payment of Rs. 10 lacs.
(4) The bribe amount was paid later on, to A-116, who released the five silver bricks.
(5) The said bribe amount was distributed among all the Police Personnel on two occasions to Mahasala Police Station, Shrivardan Police Station and Borali Outpost.
(6) Substantial amounts have been seized from each of the above noted Police Personnel during investigation.
(7) A-14 and A-17, in their confessions, have also deposed about the payment of bribe amount to A-116 for allowing the said landings.
463) As mentioned earlier, the police officials are the foundation for the existence of the rule of law; if they collapse the whole system indeed breaks down. Hence, they have sensitive responsibility to defend the safety and security of the people at all times. Law empowers them with numerous powers to prevent and control crimes like terrorism affecting internal security. They should always remember that when they fail in their duty they eventually fail the society as a whole.
Role of Customs Officers:
464) The Customs officials primarily have a duty to prevent smuggling and ensure that everything that enters into or goes out of the country is brought or sent strictly in accordance with the provisions of the law for the time being in force. They are entrusted with powers of search and seizure and conduct of on-spot investigations. But when the officer of customs enters into or acquiesces in any agreement to abstain from doing or permits, conceals or connives at any act whereby any fraudulent import is affected, it can have a disastrous effect on country’s security.
465) It is shattering to notice that all grades of customs officers, including the Commissioners of Customs played an active role as members of conspiracy and implemented the plan. Every kind of smuggling activity is devastating to the economy, but the smuggling of dangerous arms and ammunitions causes wreckage not only to the economy but also to people’s lives.
466) The occurrence of Bombay Bomb Blasts brings us to the reality that such incidents take place along the Indian coastline irrespective of the numerous laws and safeguards provided due to the lack of moral ethics and misconduct on the part of the officials.
467) Custom being a significant source of government revenue, the officers of Customs Department must perform their respective duties honestly and diligently. Any act or omission on their part can have devastating consequences. The role played by the Customs Officers in pursuance of the conspiracy can be summarized as under:-
(1) A-82, A-90, A-102, A-112 and A-113, who were the Customs Officers at the relevant time in Bombay and Alibaug, have played an active role as members of the conspiracy.
(2) A-112 attended a meeting with Mohd. Dossa (AA) in Hotel President, Bombay about 6 to 8 months prior to the bomb blasts and discussed their smuggling plans.
(3) Confessions of A-82, A-90 and A-113 as also confessions of co-accused A-134, A-136, A-14, A-17 and A-30 prove the role played by the Customs officers in the conspiracy.
(4) On 06.01.1993, A-102 and A-90, with some other customs staff members, attended a meeting at Hotel Parsian Darbar, Panvel with Mohd. Dossa (AA), A-134 and A-136, where the Customs Officers agreed to charge Rs. 7 to 8 lacs from Mohd. Dossa group for each landing. (5) On 08.01.1993, A-102 and A-90 were informed by A-134 and Firoz Abdul Rashid Khan that landing would take place in the night. [Firoz Abdul Rashid Khan was absconding and has since been arrested on 06.02.2010] (6) A-82 played an important role in negotiations with Police Officers and A-116 and seven Constables when they intercepted the convoy carrying smuggled contraband on 09.01.1993. A-82 even permitted A-30 to drive a customs jeep when they went for negotiations. (7) Collector Customs (PW-470), on receipt of information from DRI, through a DO letter dated 25.01.1993, conveyed to all the Customs Officers (accused) and others that the ISI Syndicates located in Middle East may try to smuggle contrabands and arms along with silver bricks in the districts of Bombay, Raigarh and Thane and instructed them to be more vigilant. PW-470 also gave instructions to A-112 and A- 102 in this regard.
(8) PW-172, Customs Inspector, received information of landing of silver at Mhasala on 29th, 30th and 31st Jan. 1993. He conveyed this information to A-112 for taking suitable action. (9) A-112 deliberately kept a ‘nakabandi’ at the wrong place i.e. Puranphata and Dehanphata leaving one route open for the accused persons to carry the smuggled arms and explosives without any check. (10) When the subordinate Customs Officers suggested to keep ‘nakabandi’ at proper place i.e. junction of Sai Mobra-Mangaon Road and Mahasala- Goregaon Road, A-112 informed them that he had specific information that Tiger Memon would bring the contraband goods from that route only. PW-172 had not told A-112 that landing would be organized by Tiger Memon.
(11) Landing of arms and explosives did take place on the night of 2nd and 3rd Feb. 1993. Tiger Memon and other accused participated in the landing.
(12) When the landing was being done, PW-171 (another Addl. Collector of Customs) received information about it and conveyed the same over phone to A-112. On getting information from PW-171, A-112 sent a misleading wireless message to Marine & Preventive, Srivardhan to keep a vigil at Bankot, which is miles away from the place of landing. (13) When landing of arms and explosives was in progress at Shekhadi on the night of 02.02.1993, A-90 and A-82 reached the place of landing and met A-14 and Tiger Memon. They enquired from Tiger Memon whether the landing was for weapons. Tiger Memon replied in negative. (14) Another landing took place on the night of 7th and 8th Feb. 1993. A large quantity of arms and explosives were smuggled during this landing also. Tiger Memon and other accused participated in this landing.
(15) A-14, A-17 and A-30 have also spoken about the payment of illegal gratifications to Customs Officers for the landings.
468) From the above, it will not be an overstatement to state that if not for the help of the customs officials, they would not be in a position to smuggle the weapons required for the said blasts. A rationally structured and effective customs department is the need of the hour in order to curtail illegal imports which can have frightening ramifications upon the nation’s economy and citizens’ security. Corruption among public servants indicates a failure of our system where pursuit of personal gratification subdues public interest.
Lack of vigilance in the Indian Maritime Zone and Indifference on the part of Coast Guards:
469) India being a maritime nation, the role of coast guards is very vital for shielding the coast from external attacks. The coastal belt is surveyed by three teams of officers firstly, the Indian Navy who is responsible for overall seaward security of long coastline. Secondly, the coast guards who guard the Exclusive Economic Zone (EEZ) in order to prevent poaching, smuggling and other illegal activities in the EEZ. Lastly, the customs officials, who scrutinize and monitor every commodity which enters the Indian boundaries.
470) This triple-layered security system is created primarily to guard the Indian Coastline from maritime terrorism, piracy and to keep out foreign intruders. Hence, it is the paramount duty of all these officials to be vigilant, heedful and attentive to each activity which occurs in the sea and on the shore. However, the occurrence of Bombay Bomb Blasts on 12th March 1993 discloses the deficient performance of the officials.
471) Similarly, the Indian Coast Guard (ICG) was set up in 1978 as a paramilitary branch of the Indian Armed Forces primarily for surveillance of the India’s Exclusive Economic Zone to prevent poaching, smuggling and other illegal activities in the zone. The Coast Guards being the strongest link in the security chain are bound to be vigilant at sea and should be in full command of the coast.
472) For the same, they are empowered to search and seize ships suspected of illegal activities. Besides, Section 14 of the Coast Guard Act, 1978 gives the ample scope for coast guards to assist the customs and other authorities in anti-smuggling operations necessary for protection of our long coastline.
473) As the perception of war is changing we should not overlook the role and the significance of the coast guards and the customs officials in combating terrorism. The role of the coast guards is as important as any military troops. Only well strategized coast guards and high morale customs officers can prevent any opportunity for the terrorists to attack on our country via our maritime boundary.
Quantum of Sentence:
474) After meticulous examination of confessional statements of the accused and the co-accused, the recoveries made, and other evidences it establishes undoubtedly the guilt of all the death convicts.
475) Before we deliberate and decide upon the role played by each of the appellants and their respective sentence, certain reference to the contextual developments over the epochs with regard to death sentence would be timely, which will assist us in determining the sentence in this case.
Evolvement of Law Relating to Death Sentence:
476) The constitutional validity of the death sentence has been brought under scrutiny from time to time to test the rationality of the death sentence with the emerging civilization. Though death penalty as a punishment is not abolished as yet, significant amendments have been brought in for limiting the usage of the punishment. It is manifest from the bare reading of judgments on death penalty from 1950 to till date that the judiciary has always exercised its discretion in awarding this extreme penalty with great circumspection, caution and restraint. The nature of this discretion bestowed on judges has been considered and reflected in the most celebrated Bachan Singh case (supra) in the following terms:-
“165….Cognizant of the past experience of the administration of death penalty in India, Parliament, in its wisdom thought it best and safe to leave the imposition of this gravest punishment in gravest cases of murder, to the judicial discretion of the courts which are manned by persons of reason, experience and standing in the profession. The exercise of this sentencing discretion cannot be said to be untrammelled and unguided. It is exercised judicially in accordance with well-recognized principles crystallized by judicial decisions, directed along the broad contours of legislative policy towards the signposts enacted in Section 354(3).” The dictum in Bachan Singh case paraphrases that the duty casted upon the judges in deciding the appropriate sentence is a matter of judiciousness and not of law.
477) Earlier, Section 3(2) of the TADA Act, 1985 stipulated mandatory death sentence for a terrorist act, which results in death. The challenge to this provision was mounted on the ratio of Supreme Court decision in Mithu vs. State of Punjab, (1983) 2 SCC 277 in which their Lordships struck down Section 303 of the IPC as unconstitutional, which provided for compulsory imposition of death sentence. As a result, the corresponding provision of TADA Act had also provided for the alternative sentence of life imprisonment thus bringing the provision in line with the provision of 302 of IPC. Section 3(2)(i) of TADA now prescribes death or life imprisonment in alternative as the penalty for a terrorist act. It is noticeable from the above transformation in the sentencing policy that the courts were required upon to look into each and every case on its own merits, to determine the appropriate sentence for the offender.
478) While so, the Code of Criminal Procedure signposts the court as to its application. The changes, which the Code has undergone in the last few decades, clearly indicate that Parliament is taking note of contemporary criminological thought and movement. For clarification, though TADA Act, 1987 is a special act the application of the Code of Criminal Procedure is permissible to the extent of its consistency with the act.
479) The very first case where the constitutional validity of capital punishment was vehemently discussed and decided was in Jagmohan Singh vs. State of U.P (1973) 1 SCC 20. This case was decided when the Code of Criminal Procedure, 1898 (for short the old Code) was in force. Section 367(5) of the old Code provided that if an accused person is convicted of an offence punishable with death, but he is sentenced to a punishment other than death, the Court was required to state the reason why a sentence of death was not passed.
Section 367(5) of the old Code reads as follows:-
“If the accused is convicted of an offence punishable with death, and the court sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.” Therefore, all the death penalty cases until 1973 were decided according to the principle that death sentence was the rule and life imprisonment was the exception. However, after the new Code of Criminal Procedure, 1973 which came into force with effect from 1st April, 1974, the principle took a converse turn and it was stated that imprisonment for life would be the rule and a sentence of death was an exception.
Amended section 354(3) of the Code reads as follows:-
“When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.” The Code effectively reversed the position as it existed under the old Code and also placed a rider that if a sentence of death is awarded, the court should record special reasons for awarding the same. As an outcome, the discretion to impose the sentence of death has been curbed to the extent of stating the ‘Special reasons’. Presently, judges are left with the task of discovering the ‘Special reasons’.
480) What are these ‘Special Reasons’ and does the provisions of the Code help us in discovery of these special reasons? A reference to Bishnu Deo Shaw vs. State of West Bengal (1979) 3 SCC 714 case would be helpful to understand what actually are these special reasons refers to.
Justice Chinnappa Reddy penning the judgment said as follows:
“26….Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors.” It was further stated:
“27 Criminal justice is not a computer machine. It deals with complex human problems and diverse human beings. It deals with persons who are otherwise like the rest of us, who work and play, who laugh and mourn, who love and hate, who yearn for affection and approval, as all of us do, who think, learn and forget. Like the rest of us they too are the creatures of circumstance. Heredity, environment, home neighbourhood, upbringing, school, friends, associates, even casual acquaintances, the books that one reads, newspapers, radio and TV, the economics of the household, the opportunities provided by circumstances and the calamities resulting therefrom, the success and failure of one’s undertakings, the affairs of the heart, ambitions and frustrations, the ideas and ideologies of the time, these and several other ordinary and extra-ordinary incidents of life contribute to a person’s personality and influence his conduct. Differently shaped and differently circumstanced individuals react differently in given situations. A Judge has to balance the personality of the offender with the circumstance, the situations and the reactions and choose the appropriate sentence to be imposed. A judge must try to answer a myriad questions such as was the offence committed without premeditation or was it after due deliberation? What was the motive for the crime? Was it for gain? Was it the outcome of a village feud? Was it the result of a petty, drunken, street brawl, or a domestic bickering between a hapless husband and a helpless wife? Was it due to sexual jealousy? Was the murder committed under some stress, emotional or otherwise? What is the background of the offender? What is his social and economic status? What is the level of his education or intelligence? Do his actions betray a particularly callous indifference towards the welfare of society or, on the other hand, do they show a great concern for humanity and are in fact inspired by sum concern? Is the offender so perpetually and constitutionally at war with society that there is no hope of ever reclaiming him from being a menace to society? Or is he a person who is patently amenable to reform? Well, may one exclaim with Prof. Vrij “What audacity is involved in these three tasks : to interpret life, explain an act, predict the latest inclination of a human mind.”
‘Special reasons’, we may, therefore say, are reasons which are special with reference to the offender, with reference to constitutional and legislative directives and with reference to the times, that is, with reference to contemporary ideas in the fields of Criminology and connected sciences. Special reasons are those which lead inevitably to the conclusion that the offender is beyond redemption, having due regard to his personality and proclivity, to the legislative policy of reformation of the offender and to the advances made in the methods of treatment etc.
481) In brief, Justice Reddy said that ‘Special Reasons’ necessary for imposing death sentence must relate, not to the crime as such but to the criminal. In the same line of thought in Rajendra Prasad vs. State of UP (1979) 3 SCC 646, this Court, by majority judgment, observed:
“83…. ‘Special reasons’ necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking than other murders and yet the callous criminal, e.g. a lethal economic offender, may be jeopardizing societal existence by his act of murder. Likewise, a hardened murderer or dacoit or armed robber who kills’ and relishes killing and raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psycho-therapy or curative techniques may deserve the terminal sentence. Society survives by security for ordinary life. If officers enjoined to defend the peace are treacherously killed to facilitate perpetuation of murderous and often plunderous crimes social justice steps in to demand penalty dependent on the totality of circumstances.”
482) Subsequent decision, Dalbir Singh and Ors. vs. State of Punjab (1979) 3 SCC 745 also endorsed this view.
483) Now, we have a clue as to what these Special Reasons are. The next question that arises is:- Is there a comprehensive provision in the criminal procedure code, which enunciates the mechanism for collection and presentation of the social and personal data of the culprit to the extent required to decide the verdict on sentence?
484) There were no provisions as such until the Law Commission recommended in its 48th report observing that:-
“It is now being increasingly recognized that rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to characteristics and background of the offender.
The aim of sentencing:— Themselves abscure becomes all the more so in the absence of information on which the correctional process is to operate. The public as well as the courts themselves are in dark about judicial approach in this regard.
We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to co-operate in the process.”
485) By enacting Sub-section (2) of 235, the Parliament has actually acceded to the recommendations of the Law Commission. Enactment of this provision is an act of affirming the new trend in penology, which mandates the courts to consider various factors such as the prior criminal record of the offender, his age, employment, educational background, home life, sobriety and social adjustment, emotional and mental condition, and the prospects of his returning to normal path of conformity with the law etc… in deciding the quantum of sentence.
486) In this background of standards, the judiciary with the aid of Section 235(2) ascertained the ‘Special Reasons’ pertaining to the criminals as required by Section 354(3) of the Code to impose death penalty. Subsequently, the constitutional validity of Section 302 and the sentencing procedure embodied in sub-section (3) of Section 354 of the Code was challenged before a Constitution Bench in Bachan Singh (supra) wherein the need for reconsideration of Jagmohan Singh (supra), was felt necessitated due to subsequent events and changes in law. In addition, a query was raised whether dictum in Rajendra Prasad (supra) that “special reasons” necessary for imposing death penalty must relate not to the crime as such, but to the criminal was warranted by the law or not.
487) The principal questions, which were considered, in this case are:
I. Whether death penalty provided for the offence of murder in Section 302, Indian Penal Code is unconstitutional.
II. If the answer to the foregoing question be in the negative, whether the sentencing procedure provided in Sec, 354(3) of the Cr.P.C., 1973 (Act 2 of 1974) is unconstitutional on the ground that it invests the Court with unguided and untrammelled discretion and allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of murder or any other capital offence punishable under the Indian Penal Code with death or, in the alternative, with imprisonment for life.
III. Whether the “special reasons” necessary for imposing the death penalty should relate to the criminal alone or even the crime.
488) The first main question was answered in negative, indicating that the constitutional validity of death penalty was upheld in the line of Jagmohan Singh (supra). The second question regarding the unguided and untrammelled discretion vested upon the judges to impose death sentence or imprisonment for life was answered in the following words:-
“161. A study of the propositions set out above, will show that, in substance, the authority of none of them has been affected by the legislative changes since the decision in Jagmohan’s case. According to the then extant CrPC both the alternative sentences provided in Section 302, Penal Code are normal sentences, and the Court can, therefore, after weighing the aggravating and mitigating circumstances of the particular case, in its discretion, impose either of those sentences. This postulate has now been modified by Section 354(3) which mandates the Court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are “special reasons” – to be recorded –
for such sentence…..”
489) Accordingly, the second question was answered. With regard to the third question regarding what constitutes “special reasons”, the majority view clarified that the expression “special reasons” will be in reference to the crime as well as the criminal thereby overruling Rajendra Prasad (supra) and Bishnu Deo Shaw (supra). It reads as follows:
“201. With great respect, we find ourselves unable to agree to this enunciation. As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of “special reasons” in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ‘style is the ‘man’. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that “special reasons” can legitimately be said to exist.” “163…..The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302, Penal Code, the Court should not confine its consideration “principally” or merely to the circumstances connected with particular crime, but also give due consideration to the circumstances of the criminal.”
490) As a consequence, the majority view in Bachan Singh (supra), gave a wider interpretation to the term “special reasons” by embracing within its ambit both the circumstances connected with the particular crime and the criminal. Upshot of this interpretation is that the ‘special reasons’ required for confirming the death sentence under Section 302 or in the context of this case in Section 3(2)(i) of TADA will have to be identified by balancing the aggravating and mitigating or extenuating circumstances.
491) While determining the aggravating circumstances relative weight ought to be given to both criminal and the crime and an identical approach must be adhered to for ascertaining the mitigating circumstances. Since these two aspects are interwoven, it is difficult to segregate the two to state that all circumstances relating to crime will be aggravating, likewise all circumstances relating to criminal are mitigating. From the above conspectus, it is clear that the aggravating circumstances pertaining to both crime and criminal are the reasons, which can be against the accused; likewise the mitigating circumstances marshaled from both crime and criminal can be the reasons in favour of the accused.
492) For instance, the manner of commission of murder may not be brutal or diabolic or pre-meditated. This can be construed as a mitigating circumstance pertaining to crime and not the criminal. Hence, a careful evaluation of aggravating and mitigating circumstances pertaining to both criminal and crime is the approach to ascertain the special reasons for imposing the extreme penalty on a person.
493) Thus, the two cardinal factors, viz., one, the penalty imposed must be proportionate to the gravity of the crime and second, the degree of responsibility of the offender must be taken into account in determining the sentence for an individual accused in addition to aggravating and mitigating circumstances.
494) Now, straightaway we shall determine the sentence for the appellants within the boundaries prescribed by law, bearing in mind the purpose of punishment and taking into account all circumstances influencing the degree of severity (mitigating and aggravating circumstances) and, in particular the degree of criminal responsibility.
495) For convenience, we shall discuss Yakub Abdul Razak Memon’s appeal discretely as against the other 10 appellants.
Criminal Appeal No. 1728 of 2007 Yakub Abdul Razak Memon (A-1) Before we shall enumerate the aggravating and mitigating circumstances for consideration on sentencing, we ought to find the degree of responsibility of A-1 for the occurrence of blasts on 12th March, 1993 in comparison with other appellants. Our legal system has always emphasized that the sentence shall reflect the relative significance of the accused’s role.
496) A-1 is the younger brother of Tiger Memon, (AA), who is one of the masterminds behind the blasts. A-1 was in a position of authority, particularly, had played a significant role in the context of the blasts which is important while determining the sentence. The confessional statements of co-accused discussed in earlier part of judgment under A-1’s appeal establish the dominating position of the appellant in comparison with other 10 appellants.
497) At the cost of repetition, we may reiterate the conduct of A-1, which may be very relevant for ascertaining his dominant position in commission of the crime.
498) The following conduct of the appellant (A-1) along with the co- conspirator family members may be relevant:-
a) The confessional statements of various co-accused make a mention that Tiger Memon has instructed them to stay in touch with A-1 for further instruction. Meaning thereby, A-1 assumed the role of Tiger Memon in India during his absence. As an outcome, Tiger Memon gave the commands to A-1, who in turn had passed them to other accused thereby signifying the trusted position that A-1 has obtained from Tiger Memon, apart from being just a younger brother.
b) Moreover, A-1’s role was limited not only to the extent of correspondence between the masterminds and all other accused but he was also entrusted with task of handling the explosive bags and for their safe keeping, which is again revealed in the confessional statements of various co-accused persons.
c) Furthermore, he was actively involved in hawala transactions for the purpose of facilitating the blasts on 12th March 1993.
d) Besides, he acquired tickets both for Dubai and Pakistan for transporting the appellants to the respective places for the purpose of training and coaching them in envisaging their participation for the blasts in Bombay.
499) Essentially, A-1’s deeds can’t be viewed distinct from the act of Tiger Memon, hence, both owe an equivalent responsibility for the blasts. They were the architects of the blasts, without whom the plan would have never seen the daylight. From this conduct, it is not hyperbole to state that, he was one of the ‘driving sprit’ behind the plan of the 1993 blasts, whereas the other appellants played a far lesser role and thus a lesser contribution to the crimes resulting from this plan. To be clearer on the dominant position, the blasts on 12th March, 1993 was at the discretion of the masterminds, meaning thereby, they had the effective control over the incident. It is this effective control over the incident, which is absent in the role played by rest of the appellants.
500) Hence, there is a significant difference in the role played by A-1 and the rest of the appellants. It is difficult to rule out with certainty that if the absconding accused were to be brought to trial, they might have thrown further light at the role-played by A-1. Since A-1 as well as other absconders were the real conspirators who hatched the scheme for such a tragic act, the other 10 appellants i.e A-32, A-36, A-39, A-44, A-10, A- 29, A-9, A-11, A-12 and A-16 were mere subservient subordinates whose knowledge and acquaintance might have been restricted to their counterparts. If we say it in a metaphoric style, A-1 and all the absconding accused were the archers whereas rest of the appellants were the arrows in their hands.
501) We are mindful of the fact that there is no direct act attributed to A-1 as far as parking of the explosives filled vehicle in different localities are concerned. But we should recollect, that if, not for the planning of conspirators for which A-1 was a party too, the explosives and ammunition required for the execution wouldn’t have entered into our country and as a consequence the execution itself wouldn’t have materialized. Furthermore, it is not conceivable to envisage that these principal perpetrators will take the execution in their hands. So they targeted the meek souls who were underprivileged and easily impressible to accomplish their ulterior motive. It is also a proved fact that the Memon’s family members including A-1 have fled the country anticipating detention for their illegal acts.
502) From this, it can safely be concluded that no offence might have taken place at all but for the instigation by the absconding accused and A-
1. Hence the dominant position of the accused is an aggravating factor by itself, as it gives the status of direct responsibility.
503) The following aggravating circumstances as against A-1 can be culled out:-
1. A-1 was one of the brains behind the hatching of larger conspiracy for the Bombay Bomb Blasts in 1993.
2. The dominant position and significant role played by A-1 is a factor that may aggravate his punishment.
3. The “vulnerability of the victims” and “the depravity of the crimes” constitute additional aggravating circumstances.
4. Crime of terrorism is in itself an aggravating circumstance as it carries a “special stigmatization” due to the deliberate form of inhuman treatment it represents and the severity of the pain and suffering inflicted.
5. He was part of the deliberate choosing of localities like Century Bazaar, Zaveri Bazaar, Katha Bazaar, Stock Exchange Building etc. where there was more prospect of public gathering. The manner of its execution and its design would put it at the level of extreme atrocity and cruelty.
FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:
93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:
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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,