93 Bomb Blast Case: Yakub Memon Death Sentence Appeal Supreme Court Judgement: Part 040

Evidence:

405) The evidence against the appellant (A-16) is in the form of:-

(i) his own confession;

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

(iii) testimonies of prosecution witnesses including eye witnesses; and

(iv) documentary evidence.

Conspiracy:

406) 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 cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Since we have elaborately discussed the issue relating to conspiracy in the earlier part of our judgment, there is no need to refer the same once again.

Confessional Statement of Mohammed Farooq Mohammed Yusuf Pawale (A-16)

407) Confessional statement of A-16 under Section 15 of TADA has been recorded on 20.05.1993 (16:30 hrs.) and 22.05.1993 (16:45 hrs.), by Sanjay Pandey (PW-492), the then DCP, Zone VIII, Bombay. The appellant, in his confessional statement, has given details about his involvement in the conspiracy. He has given the description of the meetings that he attended. He also described about the training that took place in Pakistan and other relevant details about his own involvement as well as that of the other accused. We have been taken through his entire confession. The following facts emerge from his confessional statement:

i) He resided at Balmiya Lane, Pamkar Chawl, Room No. 8, Wanjewadi, Mahim, Bombay and worked as a driver at Anees Travels, Mahim.

ii) He stated that he knows Javed Chikna (AA), resident of Mahim for the last five years (as on date of confession) and who is a goon and has also committed murder. He further stated that he also knew the friends of Javed Chikna i.e., Usman, Nasir Dhakla and Parvez Zulfikar Qureshi who were also criminals.

iii) On 07th February, 1993, Javed Chikna called him and asked whether he could drive a jeep for him and whether he could take 2 days leave. He (A-16) agreed and said that he would take leave for two days.

iv) Next day, i.e., on 08/09th February, 1993, he accompanied Usman to Bharat Training School where he saw Javed Chikna, Nasir Dakhla and Parvez. Two blue coloured jeeps arrived there after about half an hour. Javed Chikna sat in one jeep and A-16, Shaikh Ali, Parvez, Nasir Dhakla and Usman sat in another jeep which stopped at Vashi. He got down at that time and saw that Munna, Bashir, Anwar Theba (AA) and two other persons were sitting in other jeep. He identified Anwar and Bashir because they used to visit Javed Chikna. Usman told him the name of Munna.

v) He along with Munna, Anwar and other co-accused assisted Bhai @ Tiger Memon in the landing of 84 bags. He mentioned that it was dark and they were prohibited from lighting even a matchstick. This shows that the bags contained explosive material and they did not want to take any risk.

vi) He was given a plastic bag containing two pistols for his safety by Tiger after that they searched for the tempo which was carrying their material.

vii) On 10.02.1993, he along with 5 other persons left Bombay and reached Dubai.

viii) On 13.02.1993, he along with six other co-accused persons was sent to Islamabad, Pakistan by Tiger Memon.

ix) On 16.02.1993, he was taken to the training spot where he was given seven days’ training in dismantling and handling of arms, use of bombs, hand grenades and chemical bombs. He further stated: “Next day we were given training in dismantling and re- assembling the rifles and pistols and the use of the bombs. Second day, we were given physical training and handling of pistol and rifle. We were also given training in firing.”

x) On 27.02.1993, he was taken back to Islamabad and on 01.03.1993 to Dubai.

xi) In the evening on 03.03.1993, he along with 5 others, returned to Bombay from Dubai.

xii) On 07.03.1993, he attended a meeting along with Irfan and other accused persons at Khar in which Tiger told that he was going to cause riots in Bombay and asked him to work with Salim Mujahid and Irfan.

xiii) On 10.03.1993, he collected one white safari suit for himself, a blue coloured suit for Irfan and a biscuit coloured suit for Salim.

xiv) On the same day, A-16, Irfan and Salim wearing their respective suits surveyed Air India Building, Nariman Point in a red Maruti 1000 car driven by the appellant (A-16). The appellant stopped the car, came out and saluted the said two companions. Then he took them to the Saudi Consultate and Maker Tower. At about 1:30 p.m., they visited the Stock Exchange Building where he parked the car in the parking lot. Irfan got down earlier, while Salim got down at the parking place. On objection being raised by the watchman, A-16 took the vehicle out of the parking lot.

xv) On the same day, in the evening, he alongwith others attended the meeting at Bandra behind the Bhabha Hospital whereby Tiger distributed Rs. 5,000/- to each one of them and asked them to work without fear.

xvi) On 12.03.1993, he was paid Rs. 5,000/- by Javed Chikna who handed over to him a white Ambassador Car to park it at the spot near Air India Building which was earlier surveyed by them. He also took one pistol and rounds from Javed which he hid in his shirt. xvii) A-16, who was wearing a white Safari Suit, took the Ambassador Car and left it near the Bank of Oman near Air India Building. xviii) At that time, he was picked up by Irfan Chougule along with Salim Rahim Shaikh (A-52), who was in a blue coloured Maruti Car and he was, thereafter, dropped at Sachivalaya (Secretariat). xix) He handed over the pistol and rounds (ammunitions) to A-52. xx) He was taken by Usman in a Maruti 800 Car to Sena Bhavan Junction where Usman parked the car at the nearby Petrol Pump. xxi) In the evening, he told Bashir (A-13) that he had parked one vehicle near Air India Building which caused the blast. xxii) Next day, he came to know that the Memon’s Building (Al Hussaini) was raided by the Police.

xxiii) On 14.03.1993, on the advice of Rafiq, he went to Siraz Saloonwala at Mumbra and stayed there for 7 days and, thereafter, to his relative Tauji Ahmed at Kalva for 2 days and then to Uran from where he was arrested from the residence of his relative Fusa Kumbi.

408) The appellant herein was involved in the blasts that took place in three places, namely, Air India Building, Shiv Sena Bhawan and the Stock Exchange. It is submitted that in these three blasts 108 people were killed, 314 were injured and property worth Rs. 7.7 crores was destroyed. From the overt acts committed by the appellant herein, it is discernible that the appellant was fully conscious of the conspiratorial design and has actively and willingly participated in the conspiracy.

Confessional Statements of other co-accused:

409) A perusal of the above confession by the accused shows that the appellant was playing a key role in furtherance of the abovesaid conspiracy. The other accused, in their confessions under Section 15 of TADA have also discussed the role played by A-16 in the conspiracy. The confessions of the co-accused persons are as follows:- Confessional Statement of Asgar Yusuf Mukadam (A-10) Confessional statement of A-10 under Section 15 of TADA has been recorded on 23.04.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said accused has stated that the appellant (A-16) along with Parvez Nazir Ahmed Shaikh (A-12) and Salim Rahim Shaikh (A-52) left for Dubai on 10/11th February, 1993 when he (A-16) was picked up along with the said two associates by A-10 from Midland Hotel and were dropped at the Airport. This statement corroborates with the confession of the appellant, who too had stated that he went to Dubai on 10.02.1993.

Confessional Statement of Shahnawaz Abdul Kadar Qureshi (A-29) Confessional statement of A-29 under Section 15 of TADA has been recorded on 18.05.1993 (18:30 hrs.) and on 21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

i) A-16 was present in the training camp in Pakistan when Shahnawaz, Abdul Kadar Qureshi (A-29) and others reached there.

ii) They received training in handling of arms and explosives in Pakistan.

Confessional Statement of Zakir Hussain Noor Mohammed Shaikh (A-32) Confessional statement of A-32 under Section 15 of TADA has been recorded on 16.05.1993 (1125 hrs.) and 19.05.1993 (1730 hrs.) by Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

(i) A-16 went to Dubai along with other co-accused.

(ii) They (including A-16) received training in handling of arms and ammunitions in Pakistan.

(iii) During his stay in Pakistan, A-16 was renamed as ‘Faizal’ and the accused were not allowed to use their actual names.

(iv) On 03.03.1993, Farooq, Parvez, Salim Mujahid, Salim Dandekar, Irfan and A-32 left Dubai at 1 p.m. and came to Bombay.

Confessional Statement of Abdul Akhtar Khan (A-36) Confessional statement of A-36 under Section 15 of TADA has been recorded on 19.05.1993 (17:40 hrs.) and on 21.05.1993 (18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said accused also stated that A-16 had undergone training in handling arms and ammunitions and explosives in Pakistan. This confession, along with the above stated confessions, establishes that the appellant went to Pakistan to receive training in the use of arms and ammunitions and explosives. This further proves that the conspirators were maintaining secrecy and the actions on 12.03.1993 were a result of a pre-planned agreement between the conspirators.

Confessional Statement of Feroz @ Akram Amani Malik (A-39) Confessional statement of A-39 under Section 15 of TADA has been recorded on 19.04.1993 (22:30 hrs.) and on 23.04.1993 (20:50 hrs.) by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

i) A-16 had received training in the use of arms and ammunitions and handling of bombs in Pakistan.

ii) The trainees were told that they have to place the bombs in the trains in Bombay and explode them to cause harm to Hindus and also that whatever they were doing, they were doing it for Islam.

The confessional statement of A-39 establishes that the conspirators were well aware of the motive of the conspiracy and had become a part of it and were also fully aware of the consequences of their actions. The training which was imparted to them was for the purpose of causing destruction in Bombay. It is conclusively established from this confession that all the accused who went for training in Pakistan were fully aware of the conspiracy and its motive.

Confessional Statement of Nasim Ashraf Sherali Barmare (A-49) Confessional statement of A-49 under Section 15 of TADA has been recorded on 16.05.1993 (09:30 hrs.) and on 18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) and said that A-16 joined him with his assumed name as ‘Faizal’ in Pakistan and received training in using pistols, AK-56 rifles, machine guns, hand grenades, RDX, detonators, pencil timers etc. Confessional Statement of Salim Rahim Shaikh (A-52) Confessional statement of A-52 under Section 15 of TADA has been recorded on 15.04.1993 and on 18.04.1993 by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. The said accused also referred to the involvement of the appellant (A-16) in the conspiracy at various stages. From the statement of A-52, the following facts emerge regarding the appellant which are as follows:

i) On 11.02.1993, he along with the appellant and others left Bombay and reached Dubai.

ii) On 12.02.1993, he along with others stayed in a building opposite to Hotel Al-Khaleez where Tiger Memon met them.

iii) On 13.02.1993, he along with the appellant attended the meeting in the same building in which Javed Chikna and Tiger Memon talked about the communal riots of Bombay and Gujarat.

iv) On 14.02.1993, he along with other accused left Dubai and reached Islamabad where they were taken to the training camp and were given training in firing arms, handling LMG rifles, throwing of hand grenades, use of RDX, detonators and timer pencils. He further stated as follows:

“We were given the training of firing with Pistol. The pistol was loaded with one magazine. We were taught about opening and assembling of LMG. We were taught about firing with LMG rifles. Fourth day, we learnt about firing of rifles. Thereafter, we were given the training of throwing hand grenades. There were two persons for our training, one was Pathan and another was aged 50 years. Both were about 45-50 years old.”

v) A-52 also stated that they were told about ‘black soap named RDX’.

vi) A-52 further explained about the object and the motive of the training. He stated as follows:

“Tiger also came there on the seventh day of our training. He also took training. He told all of us “Take good training, you have to do good work in Bombay as per this training.” During the last two days, the training of hand grenades with weight, without weight and with detonators was given. We were also told about black soaps named RDX. Time pencil was also shown. The red coloured pencil used to burst in 15 minutes and the white coloured pencil used to burst in one hour and the green coloured pencil used to burst in 2 and a half hours. We threw that pencils by using detonators.” (Emphasis supplied)

vii) On 28.02.1993, at Dubai, he had taken oath along with all the other members by placing their hands over Quran for not disclosing anything about the training to anyone and to take revenge for the loss caused to their persons. He further stated:

“They had also given us the oath of causing loss to those persons who had caused loss to our persons and burnt them in Bombay.”

viii) On 03.03.1993, he along with the appellant and other co-accused left Dubai and reached Bombay.

ix) After returning from Dubai, on the 3rd day, the conspirators met at the house of Babloo. All those who received training in Pakistan were present in the meeting. In this meeting, it was decided that the blasts in Bombay would be caused after Ramzan.

x) All the trainees, along with other co-accused attended a meeting in a flat at Bandra where they were divided in groups by Tiger Memon.

xi) On 11.03.1993, at night, A-16 along with other co-accused was present in the garage of the Al-Hussaini building, i.e. at the residence of Tiger Memon where the vehicles were loaded with RDX for causing bomb blasts.

This confession further proves the fact of training in Pakistan and that the accused went to Pakistan via Dubai. It also proves the extent of training that was given. The taking of oath on holy Quran has also been proved. It also establishes the motive of the conspirators which was to cause destruction and havoc in achieving their ultimate goal. He also stated about the meetings that took place at the house of Babloo and at a flat in Bandra after the conspirators returned from Dubai. He also proved that the appellant (A-16) was present in the Al Hussaini Building when the vehicle bombs were being prepared.

Confessional Statement of Shaikh Ali Shaikh Umar (A-57) Confessional statement of A-57 under Section 15 of TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. A-57 went to meet Javed Chikna on 08/09.02.1993 at the Soda Factory. He said that at that time, Usman, Nasir, Farooq and some other people were also present there. This incident was related to meeting before the landing at Shekhadi.

Confessional Statement of Nasir Abdul Kadar Kewal @ Nasir Dhakla (A-64) Confessional statement of A-64 under Section 15 of TADA has been recorded on 22.01.1995 and on 24.01.1995 by H.C. Singh (PW-474), Superintendent of Police, CBI/SPE/STF, New Delhi. The said accused referred to the role of the appellant (A-16) in his confession as follows:

i) He described the meeting near Soda Factory wherefrom all the participants (including A-16) went for the first landing at Shekhadi.

ii) On the way to Shekhadi, the accused stopped at a place where Abdul Gani had brought a black coloured bag which contained five AK-47/AK- 56 rifles, revolver, magazines and cartridges.

iii) Around 60-70 large packets were smuggled by them.

iv) After the second landing, he transported smuggled arms and explosives from Hotel Persian Darbar to Mumbra with the appellant (A-16). On the way, the conversation between the Tiger Memon and his associates revealed that the arms were to be used to take revenge against the demolition of Babri Masjid. These arms were to be used against Hindus. The wires brought in his jeep to Waghani Tower were to be used in the bomb blasts at Bombay.

v) A-16 was present at the Al Hussaini Building during the preparation of vehicle bombs in the night of 11/12.03.1993 by using RDX which had landed at Shekhadi.

vi) A-16 was seen going to the Al-Hussaini compound in the morning of 12.03.1993 wearing a white uniform as a driver.

The said confessional statement proves that the appellant (A-16) was involved in the landings which took place in Shekhadi. It is also established that the motive of the conspiracy was known to the conspirators and the claim/contention of the appellant that the motive was not known to them is without any basis. The statement also further established that the appellant was present at the Al Hussaini building on the night when the RDX was being filled in the vehicles for their preparation as vehicle bombs.

Confessional Statement of Md. Rafiq Usman Shaikh (A-94) Confessional statement of A-94 under Section 15 of TADA has been recorded on 14.05.1993 (18:30 hrs.) and on 16.05.1993 by Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

i) A-94 told about the presence of the appellant when they were waiting to go to Pakistan for training.

ii) On 14.03.1993, A-16 met A-94 and told him that the bomb blasts have been caused by Tiger Memon. He told Rafiq to escape to Mumbra with him and, accordingly, both of them went to Mumbra.

iii) A-16 also told A-94 that he had parked the white Ambassador Car which was laden with RDX/explosives at Air India Building.

(iv) A-94 and A-16 were arrested by the police. A-94, in his confession stated that the police had come to his house along with the appellant.

Confessional Statement of Niyaz Mohammed @ Aslam Iqbal Ahmed Shaikh (A-98) Confessional statement of A-98 under Section 15 of TADA has been recorded on 17.05.1993 (14:30 hrs.) and on 20.05.1993 (11:30 hrs.) by Krishan Lal Bishnoi (PW-193), the then DCP, Zone III, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

(i) A-98 admitted that he had received training in handling of different types of arms and ammunitions, hand grenades and making of bombs by using RDX. He said that A-16 also took training with him in Pakistan. He further stated as follows:

“The training included P.T. and exercise from 7:00-8:00 hrs and from 9:00 a.m. to 1:00 p.m. dismantling, reassembling and manner of firing of pistols AK-56 rifles, LMG etc. After 3-4 days, seven boys had also joined whose names were Javed Chikna alias Ali, Usman alias Nasir, Farooq alias Faizal, Zabir alias Shakir, Salim alias Mujahid, Parvez alias Qureshi and Salim Driver alias Irfan. They had their training together with us…..

During the training period they also gave the training in hand grenades, RDX, detonators, safety fuse, Electric Detonators and Timer Pencil. They told us on black-board about making of a bomb by using RDX. After 1-2 days there came a bearded person with Ahmedbhai. All the other boys were calling that bearded man as Tiger. He got the details of the training for 2 days.”

(ii) On 01.03.1993, after reaching Dubai, A-16, who had gone for training at the instance of Tiger took an oath by placing his hands on Quran. A speech was given by Tiger regarding the riots in Bombay and about taking revenge.

The confession of A-98 along with that of A-52 proves that the accused knew about the black soap which is an explosive viz., RDX. It is established beyond doubt that during the training, the accused were taught how to use the detonators, hand grenades, timer pencils as well as RDX. The confessional statement further establishes that the accused were taught how to make bombs using RDX.

Confessional Statement of Mohd. Parvez Zulfikar Qureshi (A-100) Confessional statement of A-100 under Section 15 of TADA has been recorded on 15.04.1993 (23:30 hrs.) and on 17.04.1993 (17:00 hrs.), by Sanjay Pandey (PW-492), the then DCP, Zone VIII, Bombay. The said accused referred to the role of the appellant (A-16) as follows:

i) He disclosed the participation of the appellant in the landing of smuggled items of Tiger Memon on 09.02.1993 at Shekhadi coast and thereafter in transportation of the said consignment to Waghani Tower and other places.

ii) He participated in the training of fire arms and ammunitions at Islamabad, Pakistan alongwith his associates during February 1993.

iii) On 02.03.1993, he came back to Dubai where Tiger Memon gave 200 Dirhams to each one of them and administered oath on Quran to take revenge against Hindus for demolition of Babri Masjid and their tyranny perpetrated on them.

(iv) He was present at the residence of Tiger Memon in the night of 11/12.03.1993 alongwith other co-accused when the explosives were being filled in the vehicles which were brought for the said purpose.

410) From the confessional statements made by different co-accused, the following facts emerge:

i) A-16 had gone for training in handling weapons and explosives to Pakistan via Dubai along with other accused.

ii) A-16 was given fake name as ‘Faizal’ which was used in Pakistan while training.

iii) A-16 was fully aware of the conspiratorial design and the plan to cause blasts and destruction in the city of Bombay at a large scale;

iv) A-16 knew that this was an act of retaliation by the conspirators and he was one of them;

v) A-16 had also participated in the landing of explosives and weapons at Shekhadi;

vi) A-16 had attended various meetings between the conspirators;

vii) A-16 was present at the time of filling of RDX/Black chemical in the vehicles at Al Hussaini Building;

viii) A-16 had taken oath on holy Quran that he would cause destruction and loss to the Hindu community as a revenge for what had happened on 06.12.1992 (demolition of Babri Masjid) and in the riots that ensued;

ix) A-16 was responsible for taking the explosives laden vehicle to the Air India Building and the Shiv Sena Bhawan (Lucky Petrol Pump) and causing death and destruction.

From the above, it can easily be inferred that A-16 was fully aware and conscious of the fact that their actions were of such a nature that they had to keep the conspiracy a secret and the activities done by them were grave. Taking of oath on Quran shows their intent and determination to cause damage and destruction. Their sole aim was to terrorise the people of the country by causing massive and extensive damage to the financial capital of the country and to destabilize the Government of India. From the above confession, it is evident that he had no trace of remorse for the actions committed by him. The very fact that when the appellant fled from Bombay, he also suggested A-94 to do the same which shows their incriminating post incident conduct. Hence, it is clear that the appellant was well aware of the consequences of his action and played an important role in the conspiracy. We have already held that a voluntary and truthful confessional statement recorded under Section 15 of TADA requires no corroboration.

Retracted Confessions:

411) It has been contended that all the confessions relied upon against the appellant including his own confession have been retracted and therefore, they are not trustworthy. Since the very same objection has already been considered and rejected, we are not repeating the same once again. The said conclusion is applicable to these appeals also.

Deposition of Prosecution Witnesses:

Deposition of Mohammed Usman Jan Khan (PW-2) (Approver)

412) PW-2, the approver, has also deposed against the appellant. We have gone through the portion relating to A-16. The deposition of PW-2 with regard to the involvement of A-16 is summarized hereinbelow:

(i) He knew Md. Farooq Mohammed Yusuf Pawale as Farooq Pawale (A-16).

(ii) He identified the appellant in the identification parade.

(iii) On 09.02.1993, he met A-16 at the Soda Factory along with other co-accused and went to Waghani Tower where the goods brought in the cars were unpacked by them.

(iv) The gunny bags contained AK-56 rifles, its rounds, hand grenades, pistols, magazines and RDX, i.e, ‘Kala Sabun’. All these items were then kept in the cavities of the jeeps. A box of detonators was also there.

(v) On 10.02.1993, the appellant went to Hotel Persian Darbar along with Tiger Memon.

(vi) The appellant (A-16) also accompanied the approver and other co-accused to Pakistan for training in handling of arms and ammunitions and explosives.

(vii) In the training, they were taught how to operate and use AK-56 rifles, pistols, hand grenades and use of RDX for preparing bomb. They were explained that the RDX could be used for exploding and blowing off the bridges, trains, dams etc. They were also shown timer pencils, detonators of different colours which could ignite RDX bombs from a period of half an hour to five hours and were told how to use them. In the evening time, classes were held and they were explained things on black board and were also instructed about rocket launcher but were not given firing practice of the same.

(viii) The appellant (A-16) was present in the meeting at Babloo’s residence which took place on 08.03.1993 wherein the targets for the explosions were selected and finalised.

(ix) Tiger had called A-16 and two other people in a room to talk to them separately.

(x) A-16 was present in the meeting at the residence of Tiger Memon at Al Hussaini Building on 11/12.03.1993.

(xi) PW-2, along with the appellant, took the white coloured Maruti 800 car (laden with RDX) and parked it near the Shiv Sena Bhawan/Lucky Petrol Pump.

(xii) A-16 had altercations with a Hawaldar (Constable) as well as with an employee of the Lucky Petrol Pump regarding the parking of the said car. This fact has been corroborated by the testimony of the prosecution witness.

413) Learned counsel for the appellant placed reliance on para 74 of the deposition of the approver in support of her contention that the accused was only a pawn and was following the directions of his masters. Para 74 reads as under:-

“After talking to Tiger Memon on telephone, Javed Chikna and all of us came downstairs. We met Farooq Pawale (A-16). Javed Chikna instructed Farooq Pawale to take one Maruti Car 800 to Shiv Sena Bhawan, Dadar and park it near Shiv Sena Bhawan, Dadar. Farooq Pawale requested me to accompany him. I accompanied Farooq Pawale in the white coloured Maruti 800 car, I drove the Maruti Car to Shiv Sena Bhawan. The white coloured Maruti 800 car was filled with RDX. We were told to park the white coloured Maruti Car near Shiv Sena Bhawan to blow it up.” A-16 participated in the landing and transportation of arms and ammunitions and explosives which were smuggled into India at Shekhadi in February, 1993. He visited Pakistan via Dubai for receiving training in handling of arms and ammunitions and explosives from the agents of ISI to commit terrorist acts in India. He attended conspiratorial meetings during the month of March 1993 at the residence of Babloo @ Nazir Anwar Shaikh and Mobina @ Baya Musa Bhiwandiwala (A-96) for making plans to commit terrorist act.

414) He also participated along with other co-conspirators in loading the explosives like RDX fitted with time device detonators in various vehicles during preparation of vehicle bombs in the intervening night between 11/12th March, 1993. He surveyed and conducted reconaissence of the Stock Exchange Building and Air India Building on 10.03.1993 for causing explosions there. Therefore, it is established that the appellant was well aware of the conspiracy right from the inception and also of the consequences of his acts.

415) It is evidently clear from the participation of A-16 in all the important events and his presence in the conspiratorial meetings that he was an integral part of the conspiracy and knew everything about it. It was not the case that he was merely following the instructions. The testimony of the approver corroborates the confession of the accused as well as confessions of other co-accused in all material particulars. The approver was one of the conspirators and he was a party to all the landings, meetings, training and also went to plant the explosives laden vehicle at the Shiv Sena Bhawan. The account of the conspiratorial meetings, training and other events is reliable and fits in to the chain of events which has already been established by the confessions of various accused.

Other Witnesses Deposition of Ishwar Haralkar (PW-11)

416) PW-11 was a service man at Lucky Petrol Pump. He deposed that while he was on duty on 12.03.1993, at 2 p.m., the driver (PW-2) of a white coloured Maruti 800 car stopped in front of the service station. He further deposed as follows:

(i) PW-11 refused to allow the driver to park the car there as it had not come for servicing in the station. There was an altercation between PW-11 with the person (A-16) sitting next to the driver. Ultimately, PW-2 parked the said car towards the direction of Shiv Shahi Chawl at the side of petrol pump and left it there. After half an hour, PW-11 heard the sound of a big explosion and saw that the said Maruti Car had exploded. He noticed that there was fire and massive damage to the vehicles standing nearby. The cement roof of the service station blown up and fell on him. He was injured and went to the doctor. He noticed complete damage to the service station and the petrol pump.

(ii) PW-11 identified PW-2 in the identification parade dated 11.05.1993 conducted by the Special Executive Magistrate, Ram S Bhosale (PW-460) and he again identified PW-2 as well as A-16 in the identification parade dated 23.05.1993 conducted by SEM Moreshwar Thakur (PW-469).

(iii) The witness also identified the appellant (A-16) in the Court.

417) It has been contended by the counsel for the appellant that the person (A-16) sitting next to the driver got off before the white coloured Maruti 800 car was parked at the side of the Lucky Petrol Pump. On the basis of this, the counsel submitted that A-16 was not responsible for the blast that took place at the Petrol Pump. It is submitted that even though the accused (A-16) was not the last person to leave the car but most certainly he went with the other person who was driving the car (PW-2) to plant the bomb at the said Petrol Pump. It is further submitted that A-16 had to get down from the car only because PW-11 did not permit the parking of the vehicle in front of the said Pump. A-16 had gone along with PW-2 to the place where the incident took place for the purpose of planting the vehicle.

418) It has also been contended on behalf of the appellant that the height of A-16 has not been recorded and so PW-11 is not a reliable witness. It was submitted by the counsel that the witness has stated:

“My statement recorded on 12.03.1993 was read over and explained to me after it came to be recorded and found that it was correctly recorded.

(The attention of the witness is drawn to his statement dated 12.03.1993). In my statement recorded by the Police on 12.03.1993 there is no mention of the height of the person who was sitting by the side of the driver. I cannot assign any reason why it is not recorded. According to me the colour complexion of a person would be important in describing him. In case of the person whom I noticed sitting by the side of the driver in the Maruti Car on 12.03.1993, his colour complexion was important feature and not his shortness.” Therefore, in view of the above statement, the witness was conscious of the fact that the height was not recorded in the earlier statement. It was submitted from the side of the prosecution that for identifying the accused, it was not his height which was important but it was his colour and complexion which was important.

419) The witness has further deposed that the statement was read over to him and he found it to be correct. It cannot be contended by the appellant that merely because the height of the accused was not mentioned in the earlier statement, the witness is unreliable. PW-11 has, in fact, identified the accused A-16 and therefore his testimony is reliable. It was further contended on behalf of the appellant that since PW-11 was an injured witness, the doctor who treated him should have been examined and his non-examination would result in discrediting the witness.

420) The witness has given accurate description of the accused and the approver has identified them. The testimony of the witness is corroborated by the evidence given by the accused, the approver and other witnesses. It is also mentioned in his statement that he did not suffer any bleeding injuries. Since the witness was not seriously injured, there was no need for him to be admitted in a hospital and for the Investigating Officer to examine any doctor in this regard. Hence, the contention of the appellant is without any basis.

Deposition of S.S. Hande (PW-12)

PW-12 was a police constable attached to Dadar Police Station. On 12.03.1993, he along with PC 13196 was on duty at the Shiv Sena Bhawan. He is an eye-witness to the incident. PW-12 deposed as under:

(i) Around 2 p.m., PW-12 had an altercation with A-16 who was sitting next to the driver (PW-2) of white coloured Maruti Car with regard to the parking of car near Shiv Sena Bhawan. The driver (PW-2) took the car away from there and ultimately parked it near the compound wall of service station after some discussion with an employee of the Lucky Petrol Pump. After parking the vehicle, both A-16 and PW-2 left the place.

(ii) He further deposed that after sometime an explosion occurred and there was lot of smoke in the area and many vehicles and buildings were damaged.

(iii) PW-12 identified PW-2 and A-16 in the identification parade dated 23.05.1993 conducted by SEM Moreshwar Thakur (PW-469) who prepared the memorandum Panchnama Exh. 1519 for the same.

(iv) The witness also identified the appellant (A-16) in the Court. It was submitted by the counsel for the appellant that this witness has deposed that A-16 had an altercation with him regarding parking of car. Thereafter, he saw them talking to an employee of the Lucky Petrol Pump. After some time, the person sitting next to the driver got down from the car. Here again, it was contended that A-16 was not there until the car was parked and so he was not responsible for the blast that took place at the Lucky Petrol Pump. In view of the above, it is contended that even though he did not finally park the car, his intention was to cause the blast and he got down from it only because of the altercation. A-16 was an equal participant in the planting of the car at the place of the blast.

421) Learned counsel for the appellant has placed para No. 5 in which the accused has been identified by the witness and paragraph No. 8 where the distinguishing marks on the face of the accused have been described by the witness. This supports the case of the prosecution that the eye-witness has correctly identified the accused and, therefore, the accused can be placed at the scene of crime on the date and time of the incident. However, the counsel has not pointed out para No. 312 from the statement of PW-2 which reads as “I told Farooq Pawale to get down and go ahead and engage a Taxi for us, as stated in my evidence before the Court.” It is thus established that the testimony of the witness is reliable and also the fact that the accused had gone to the site of the explosion along with PW-2 in the car in which the explosion took place. The evidence given by PWs 11 and 12 corroborate the evidence given by the accused himself and the approver.

422) Learned counsel for the appellant also submitted that PWs 11, 12 and 2 have given different versions of the story which are contradictory and thus their statements cannot be relied on. The statements of all the witnesses and the confession of the accused, if read as a whole, do not give any contradictory or conflicting account, in fact, they corroborate each other.

Deposition of Jagannath B. Patil (PW-668)

PW-668 was a Police Officer who visited the said Petrol Pump after the blast in the presence of two panch witnesses Sudhakar Kadam and Kallapa. He drew a panchnama and seized ten Articles, viz., Articles 549-A (colly) to 558-A (colly) in and around the site of explosion. These articles included burnt pieces of tar, burnt pieces of wood and mud from the ditch created due to the explosion. PW-668 also collected samples/Articles vide Panchnama Exh. 2460 in the presence of Panch Witness Kiran Padhrinath Deshmukh (PW-666). A Panchnama was prepared in respect of articles taken by the Assistant Chemical Analysers from the site of the blast near Shiv Sena Bhavan in Dadar.

Deposition of Anil Kumar V. Kamat (PW-669)

PW-669 was the person who sent articles like burnt pieces of bones, skull, branches of trees, etc. to the FSL for its opinion and has also deposed about the injuries to the persons and the deaths of the persons on account of explosion at Lucky Petrol Pump. The reports sent by the FSL confirm the traces of RDX which were present in the objects collected from the scene of the blast.

Deposition of Fazal Fruitwala (PW-363)

PW-363 was a Car Broker. In July, 1990, Salim Abdul Gani Gazi (AA) had approached him for purchasing a new white coloured Maruti 800 car. PW- 363 inquired with Shakil Hasam of Auto Links. He informed Salim Gani that the car was available. As asked by Shakil Suleman on 12.07.1990, the delivery order was taken from M/s Sai Service Station. The car was in the name of the original purchaser Sultan Ali. On the same day, at 7 p.m., Salim Gani had paid Rs. 1,40,000/- inclusive of brokerage. PW-363 had asked Salim Gani to take delivery from Daman Stockyard. After deducting the brokerage, PW-363 sent the price of the car to Shakeel Hasam. The vehicle, i.e., the white Maruti Car used for the explosion was purchased by Salim Abdul Gani Gazi (AA) in July, 1990 through PW-363 and Shakeel S. Hasam (PW-366). The car was given Registration No. MH-03-A-2143. The registration of the car was done under a fictitious name which is proved by the evidence of PW-329 who was a postman in the concerned locality.

Deposition of Sadanand S. Paradkar (PW-329)

PW-329 was a Postman and was in the service of Ghatkopar Rajawadi Post Office in the year 1993. It was deposed by him that Garodia Nagar did not have any building by name of Manohar Apartment and, hence, there was no question of any person by name Sultan Ali residing in Flat No. 8, on the second floor of the said building. His deposition proves that the registration of the car was done under a false identity.

Deposition of Sudhakar D. Kadam (PW-445)

PW-445 was a petrol-filler at the Lucky Petrol Pump. On 12.03.1993, at 5 p.m., he went to the petrol pump as he was posted in the second shift, i.e., from 5 p.m. to 12 a.m. He found that the atmosphere was smoky; the roof of the service station was missing; the petrol pump was partly burnt and the articles and parked vehicles were partly or fully burnt. There was a big hole on the 2nd floor wall of the building. He further deposed that damage was also caused to the buildings behind the petrol pump and things in its vicinity. He also gave the information regarding the situation of petrol pump and its vicinity in the presence of panchas. He further deposed that the police had correctly drawn the Panchnama Exh. 1431 dated 12.03.1993.

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:

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, Uttam,

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