215) Mr. Jaspal Singh, learned senior counsel for A-1 submitted that based on the statement of Mohd. Hanif (PW-282) and other witnesses as well as confessional statements of accused, several recoveries were made by the prosecution and in the absence of strict adherence to the procedure, those recoveries are inadmissible in evidence. He also pointed out that seizure panchnama was not in accordance with the procedure and, more particularly, Section 27 of the Indian Evidence Act. Now, let us consider how far the prosecution has established that the recovered articles/materials were either used or intended to be used for the Bomb blasts on 12.03.1993 pursuant to the conspiracy hatched. Apart from the argument of Mr. Jaspal Singh relating to a deficiency in the panchnama, Mrs. Farhana Shah, learned counsel appearing for some of the accused has also raised the same contention.
216) Before going into the merits of the oral and documentary evidence led in by the prosecution, let us consider the salient features of a Panchnama and whether the prosecution witnesses strictly adhered to the procedure contemplated for a valid Panchnama.
217) The primary intention behind the Panchnama is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search with or without warrant and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. The legislative intent was to control and to check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of article.
Evidentiary value of Panchnama
218) Panchnama is a document having legal bearings which records evidence and findings that an officer makes at the scene of an offence/crime. However, it is not only the recordings of the scene of crime but also of anywhere else which may be related to the crime/offence and from where incriminating evidence is likely to be collected. The document so prepared needs to be signed by the investigating officer who prepares the same and at least by two independent and impartial witnesses called ‘Panchas’, as also by the concerned party. The witnesses are required to be not only impartial but also ‘respectable’. ‘Respectable’ here would mean a person who is not dis-reputed. One should also check if the witnesses are in their senses at the time of the panchnama proceedings. Only majors are to be taken as witnesses as minors’ witness may not withstand the legal scrutiny.
219) Panchnama can be used as corroborative evidence in the court when that respectable person gives evidence in the court of law under Section 157 of the Indian Evidence Act. It can also be used as evidence of the recorded transaction by seeing it so as to refresh their memory u/s 159 of Indian Evidence Act.
Provisions relating to Panchnama in the Code
220) The word ‘Panchnama’ is nowhere stated in the Code, but it can be construed from the language of certain provisions under the code. Sections 100 and 174 of the code mandate the presence of respectable persons as witnesses at the time of search and investigation respectively.
Section 100: Persons in charge of closed place to allow search (1)Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by sub-section (2) of section 47.
(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. (4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(6) The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the search and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person. (7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.
(8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860).
174. Police to inquire and report on suicide, etc. (1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighborhood shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of inquiry as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.
(2) xxx (3) xxx (4) xxx”
221) Section 100 of the Code was incorporated in order to build confidence and a feeling of safety and security among the public. Section 100 clauses (4) to (8) stipulate the procedure with regard to search in the presence of two or more respectable and independent persons preferably from the same locality. The following mandatory conditions can be culled out from section 100 of the code for a valid Panchnama:
a) All the necessary steps for personal search of officer (Inspecting officer) and panch witnesses should be taken to create confidence in the mind of court as nothing is implanted and true search has been made and things seized were found real.
b) Search proceedings should be recorded by the I.O. or some other person under the supervision of the panch witnesses.
c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchanama.
d) The I.O. can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the Panchanama after the signature of the main I.O.
e) Place, Name of the police station, Officer rank (I.O), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama.
f) The panchnama should be attested by the panch witnesses as well as by the concerned IO.
g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses.
h) If a search is conducted without warrant of court u/s 165 of the Code, the I.O. must record reasons and a search memo should be issued.
222) Section 174 of the Code enumerates the list of instances where the police officers are empowered to hold inquests, the proviso to this section mandates the inquest to be conducted in the presence of two or more respectable inhabitants of the neighbourhood.
Circumstances when the Panchnama is inadmissible:
223) The Panchnama will be inadmissible in the court of law in the following circumstances:
i) The Panchnama recorded by the I.O. under his supervision should not be hit by Sec.162 of the Code. The procedure requires the I.O. to record the search proceedings as if they were written by the panch witnesses himself and the same should not be recorded in the form of examining witnesses as laid down u/s 161 of the Code.
ii) The Panchnama must be attested by the panch witnesses for it to be valid in the eyes of law. In case of a literate panch witness, he must declare that he has gone through the contents of Panchnama and it is in tune with what he has seen in the places searched, whereas for illiterate panch witness, the contents should be read over to him for his understanding and then the signature should be appended. If the above said declaration is not recorded, then the panchnama document will be hit by Sec.162 of the Code.
224) On any deviation from the procedure, the entire panchanama cannot be discarded and the proceedings are not vitiated. If any deviation from the procedure occurs due to a practical impossibility then that should be recorded by the I.O. in his file so as to enable him to answer during the time of his examination as a witness in the court of law. Where there is no availability of panch witnesses, the I.O will conduct a search and seize the articles without panchas and draw a report of the entire such proceedings which is called as a ‘Special Report’.
225) In Pradeep Narayan Madgaonkar and Ors. vs. State of Maharashtra (1995) 4 SCC 255, this court upheld that the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency. But prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible a corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation and requires greater care to appreciate their testimony.
226) In Mohd. Hussain Babamiyan Ramzan vs. State Of Maharashtra, (1994) Cri.L.J. 1020, and Pannalal Damodar vs. State of Maharashtra (1979) 4 SCC 526, it was held that normally, it is expected that the investigating officer will take independent panch witnesses and if knowingly he has taken pliable witnesses as panch witnesses then the entire raid would become suspect and in such a case it would not be possible to hold that the evidence of police witnesses by themselves would be sufficient to base conviction.
227) In M. Prabhulal vs. The Assistant Director, Directorate of Revenue Intelligence (2003) 8 SCC 449 and Ravindra Shantram Sawan vs. State of Maharashtra (2002) 5 SCC 604, this Court came to the conclusion that mere non-examination of the panch witnesses, who are normally considered as independent witnesses, would not be sufficient to discard the evidence of the police witnesses, if their evidence is otherwise found to be trustworthy.
228) In Rameshbhai Mohanbhai Koli and Ors. vs. State of Gujarat (2011) 11 SCC 111, this Court held that “Merely because the panch-witnesses have turned hostile is no ground to reject their evidence in toto but the same can be accepted to the extent that their version was found to be dependable on a careful scrutiny.
229) Keeping the above principles in mind, let us consider the recoveries made through prosecution witnesses. Altaf Ali Mustaq Ali Sayed, (A-67), in his confessional statement narrated about various articles and also identified the articles used for the preparation of bomb. He made his confessional statement before Mr. P.K. Jain (PW-189), the then DCP, Zone-X, Bombay. Since we are concerned about the recoveries, we are not adverting to his entire statement for the present. A-67 in his confessional statement implicated A-1 at many places. He informed the officer that A-1 asked him to get the tickets confirmed for Dubai on short notice since he was working as a recruiting agent. For this, he assured A-1 that it would be possible for him to arrange tickets even on short notice. Thereafter, when he returned to his office, in the evening, he received a call from Amjad telling him that as discussed in the morning with A-1, bags have been sent for keeping the same with him. After saying so, he brought 4 bags in which one was a big brown coloured VIP bag, one small and one black coloured VIP like bag and two handbags tied together, from a jeep parked in the compound and handed over the same to him. The next day, according to him, A-1 telephoned him and verified whether Amjad had handed over the bags to him. He answered in the affirmative then he asked to book 4-5 tickets for Dubai. A-1 also sent the names with money through one Rafiq Madi (A-46), who was also a resident of Mahim and known to him for the last 10-12 years. He booked 15/16 tickets for them. Rafiq Madi, who used to bring the money every time, took the tickets. In his further confession, he stated that after 10-12 days Amjad handed over three bags through Rafiq for keeping the same with him (A-67), out of them, one was big and two were small and A-46 kept them in his office and told him that Yakub Menon had sent these bags and these were to be sent along with the persons going abroad. He gave them 5 tickets in the first week of March and all the persons went away but the bags remained lying there, then he spoke to Yakub Memon over phone and asked as to when he will take away the bags. For this, A-1 replied that he will take away the same in a couple of days. On the same day, in the afternoon, at 2 p.m., A-1 called him and directed him to send those bags to him since he had nobody with him. Then, at 6 ‘o’ clock, in the evening he put all those bags in his Maruti car and reached his building. He further explained that among those bags, 4 bags were given to him by Amjad and one small bag was given by Rafiq Madi. He could not give the other 2 bags due to their being heavy. When he asked the watchman to call Yakub bhai, at that time, a servant girl, aged about 10/12 years, came down with the keys of garage and put those bags inside the garage of Yakub bhai. When he returned to his house, he telephoned Yakub Memon (A-1) that he had given 5 bags to his watchman and he had put them in his garage.
230) Thereafter, he went to Borivali where he heard that bombs had exploded at several places in Bombay on Friday i.e. 12.03.1993. After 2-3 days, when he read the newspaper and came to know that Yakub Memon and his men were behind the blasts then he got very scared. The other two bags were lying in his office. He further stated before the DCP that during this period, Amjad had gone to Karachi and London on 21/22nd March. He gave both the bags to Yakub Memon (A-1) through a Taxi Driver, viz., Mohammed Hanif, who used to handle all his parties etc. and told him to keep those bags with him and return as and when required or when he was asked for the same. He also stated that the police came to his office on 26.03.1993, at about 5 ‘o’ clock and inquired about the bags which Amjad had given to him and he explained to them in detail. Later, he realized and believed that the bags kept in his office by Yakub Memon through Amjad contained gun powder, arms and ammunitions and he and his men used all that for the bomb blasts in Bombay.
231) In his confessional statement before the recording officer, he stated that, at first, A-1 told him that it contained office documents but later he informed him that it contained weapons etc. to take revenge against the loss of Muslims in Bombay riots. Later, he informed A-1 not to implicate him and not to create any problem for him. On this, A-1 told him to keep those two bags for few more days. After this, when Rafiq came to keep 3 bags with him, he asked him what was contained in these bags as they were very heavy, at that time, he told him that the bags contained bullets and grenades etc. for some work in Bombay. He informed the officer that he had no other role except for keeping those bags in his office.
232) The next witness heavily relied upon by the prosecution is ‘Mohammed Hanif Usman Shaikh (PW-282)’. According to him, he had been residing at Bombay for the last 30 years and had been plying a taxi for the last 10 years. He admitted in his evidence that he knows Altafbhai (Altaf Passportwala) and he identified Altafbhai in the Court and also informed his full name as Altaf Ali Mustaq Ali Sayeed. He further informed the Court that Altafbhai gave him 2 suit cases in his office when he had been to the said office at 09:00 p.m., on 22.03.1993. Both the said suitcases were given to him in a closed condition. Altafbhai told him to keep the said suit cases and informed him that it contained fax machines. Both the said suitcases were of light brown colour. While describing further, it was stated that 1 suitcase was of bigger in size while another one was of smaller in size. He further explained that since Altafbhai was not having place to keep the said suitcases, he had given the same to him for keeping the same for a few days. Accordingly, he brought the said suitcases to his house.
233) In continuation of his evidence, he stated that on 26.03.1993, at about 10:30 p.m., 4/5 policemen along with Altafbhai came to his house. On seeing him, Altafbhai told him to return the bags given by him. Though an objection was raised about the said question, the Designated Court has rightly clarified that the answer was allowed with the limited object to show only a fact that Altafbhai had made a statement. Thereafter, PW-282 deposed that he took out the bags which were under the Sofa and gave the same to police persons who had accompanied Altafbhai (A-67). Since he was not having the keys, he was unable to produce the same when he was asked by Police Officer Mahabale. Thereafter, the said officer called a mechanic and the mechanic opened both the bags by preparing the keys for the same. After opening the bags, the mechanic went away. Both the said bags were found to contain hand grenades. Both bags also contained wire bundles. The bigger suit case contained 65 hand grenades. The same also contained 10 bundles of wire. The smaller suit case contained 40 hand grenades and 5 bundles of wire. He further explained that the chits were affixed on each of the hand grenades in both the said bags. The bundles of wire from both the bags were kept together and wrapped in a paper. The said packet was tied by means of a string. A seal was also affixed upon the said packet. The hand grenades from both the bags were of similar size. The same were of green colour. Each bundle of wire contained wires of green, red and yellow colour. The witness deposed that he had seen the suit-cases before this day. Accordingly, the suit cases were marked as Article Nos. 42 and 43 after showing the same to him. He mentioned that he had seen both the said suitcases in the year 1993 and had seen both the said suit cases on 22.03.1993. He reiterated that he had seen the said suit cases on the said day in the office of Altafbhai. Thereafter, the said suitcases were given to him by Altafbhai. When a specific question was put, namely, whether Article Nos. 42 and 43 shown to him had any connection with the suitcases given to him by Altafbhai, he answered that the same were the suitcases like these suitcases. He again reiterated that suitcases Article Nos. 42 and 43 were the suitcases given to him by Altafbhai.
234) In the cross-examination, he mentioned that the hand grenades from the bigger suitcase were counted in his presence and asserted that after counting the same they were found to be 65 in number. He also reiterated that thereafter 65 labels were prepared and signatures of panch witnesses were obtained upon each of the said labels. After affixing of the said 65 labels one by one on each of the said hand grenades, the labeled hand grenades were kept in a bigger suit case. He also asserted that the said labeled hand grenades or any hand grenade out of them was not removed from the said bigger suitcase after the same were kept in the same up till the said bag was removed from his house by the police. Before removing the bigger suit case from his house, he stated that the same was locked by means of a key which was prepared by the mechanic for opening the said suitcase. He also stated that the bigger suitcase was sealed in his presence in such a manner that contents thereof could not be removed by anybody without tampering or breaking the seal affixed on the said suit case.
235) Regarding the smaller box, he stated that in the same manner 40 hand grenades were found from the smaller bag and after that the same were labeled. The said bag was also locked by means of a key prepared by the mechanic for opening the said bag. He also stated that the said bag was also sealed in such a manner that the contents thereof could not be taken out without damaging the intact seal affixed to the said bag or without breaking the said bag. He also stated that none of the labeled hand grenades kept in the said bag was removed after the same were kept in the said bag, after labeling and uptill the said small bag (suitcase) was taken out of his house by the police.
236) He further stated that in the said night, he had seen only 105 hand grenades and out of them 65 hand grenades were kept in bigger suitcase and 40 hand grenades were kept in the smaller suit case. Since he disputed the number of hand grenades, labeling and locking in cross examination, with the permission of the Court, the Special Public Prosecutor put questions regarding happenings at Mahim Police Station in the month of Feb./March, 1993 and the circumstances in which the statement of the witness was recorded by the police and the reason for which he had deposed before the Court. In respect of a suggestion that he had made such a wrong statement at the instance of accused Altafbhai (A-67) and his agents, he denied the same. Regarding the acceptability or its evidentiary value regarding the number of hand grenades is to be discussed in the coming paragraphs.
237) Regarding recoveries, the prosecution also relied on the evidence of ‘Ramesh Manohar Parkunde (PW-541)’. According to him, in the month of March 1993, he was attached to the DCB CID, Unit VIII as P.I. He deposed before the Court that on 24.03.1993, senior P.I. V. S. Kumbhar of DCB, CID entrusted him with further investigation of C.R. 138 of 1993 registered with L.T. Marg Police Station on 23.03.1993. After taking charge of the said investigation, he registered C.R. No. 77 of 1993 as a corresponding C.R. No. for the said crime. On going through the earlier papers of investigation, he noticed a panchnama dated 23.03.1993 affected at L.T. Marg Police Station. He took charge of the articles recorded in the said panchnama and kept the same in the Strong Room of DCB, CID. The said articles were suit cases, AK-56 rifles, ammunitions and hand grenades etc. He further informed that on 24.03.1993, he visited the place from where the said articles were seized and made a thorough inquiry regarding the manner in which the said articles came to the said spots. He further stated that on 27.03.1993, he handed over all live hand grenades seized under Panchnama Exh. 728 to P.I. Chaugule of B.D.D.S for defusing the same. On the same day, he had also given him all the detonators seized under the same panchnama for diffusing. He had requested the said squad for returning the said hand grenades and detonators after diffusing the same.
238) PW-541 forwarded the seized articles to FSL for examination by preparing necessary forwarding letter and described the articles sent therein. On going through the office copy of the said letter, he explained that on the said day, he had sent in all 11 sealed packets to the FSL and out of them 4 articles were sealed gunny bag packets and other 7 were sealed bags with each packet containing the articles as described in the said forwarding letter. The said articles were received on the same day by the FSL and the FSL has given the acknowledgement of receipt of the letter and articles. The letter shown to him containing the said acknowledgement of FSL is marked as Exh. 1846. According to him, since the said articles were in large quantity, he had personally taken those articles to the FSL. On 02.04.1993, he had taken out the said articles from the Strong Room. He asserted that the said articles were found in perfectly sealed labeled and packed condition in which the same were deposited in the strong room, i.e., they were in the same condition in which he had received them. He sent those articles in the same condition to the FSL. On 27.04.1993, he received a report from Chemical Analysor regarding the articles sent by him for examination. In the absence of any objection by the defence counsel, the Chemical Analyser report has been admitted in evidence and the same is marked as Exh. 1847.
239) Apart from the above mentioned evidence of PW-541, who is an officer incharge of the muddemal property, since 20 hand grenades were found less while recording his evidence, he filed an affidavit dated 11.10.1999 before the Designated Court which reads as under:
“In the Court of Designated TADA(P) Ac, BBC, Gr. Mumbai In BBC No. 1/93 The State of Maharashtra / CBI, STF …Appellant vs Dawood Ibrahim Kaskar & Others. …..Accused
I, Ramesh Manohar Pargunde, 52 yrs Sr. Inspector of Police, Kherwadi Police Station, Mumbai, do hereby solemnly affirm and say as under:-
2. That I am filing this affidavit with a view to explaining the shortage of 20 hand grenades in muddemal property of this case.
3. I say that I was incharge of the store of muddemal property of Crime Bracnh, CID, Mumbai in the year 1993. On 22.05.1993, the Police Inspector of Worli Police Station had deposited 105 hand grenades and 150 detonators, which were seized in connection with LAC No. 389/93 of Worli Police Station, Mumbai in DCB, CID CR No. 112/93.
4. I say that I was informed that 20 hand grenades were found less in the muddemal property while recording the evidence of this case. I was, therefore, asked to check up the record of the above store of Crime Branch. I have personally checked and verified the said record. I say that 5 handgrenades were lying in the strong room of Crime Branch, CID. I say that inadvertently the said 5 hand grenades were not deposited in the Court when the said muddemal property was produced before the Court. I say that the prosecution may be permitted to produce the said 5 hand grenades for which a separate application is being moved before this Hon’ble Court.
5. I say that I have verified the other record of the Crime Branch and found that the remaining hand grenades were given to the various authorities as per the orders of the superiors.
a) Six hand grenades given to Intelligence Bureau by PI, BDDS on 10.06.1993.
b) One hand grenade was given to DCP CB, Hyderabad.
c) Eight hand grenades have been given to the Ballistic Expert of Austria and Britain, as the said experts were called upon to opine on the origin of the said hand grenade I say that whatever stated in Para No. 3 and 4 is as per the record available in the office and whatever stated in Para No. 5 (a, b & c) is true as per my personal knowledge and as per the available records and I believe the same to be true.
This 11th day of October, 1999.
Deponent (R.M. Pargunde) Identified by me Spl. Public Prosecutor CBI, STF Mumbai”
240) The statements of various accused, particularly, A-10 and the evidence of PW-282 as well as PW-541 coupled with the affidavit sworn by PW- 541 and in the light of the principles to be followed for a valid panchnama which we have discussed earlier, we are satisfied that though minor discrepancies are there, according to us, on this ground we cannot destroy the entire prosecution case. In view of the fact that the prosecution has led ample corroborative evidence, which we have discussed in the earlier paragraphs, we are of the view that the Designated Court was fully justified in relying on those recoveries while accepting the prosecution case.
FOR FULL JUDGEMENT, PLEASE CHECK THE LINKS BELOW:
93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement:
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