Gateway of India Bomb Blast Case POTA Court Mumbai Judgement

1Pota.Spl.
Case1of2004
IN THE SPECIAL COURT CONSTITUTED UNDER THE PREVENTION OF TERRORISM ACT, 2002 AT GREATER BOMBAY POTA SPECIAL CASE NO. 1 OF 2004
The State of Maharashtra (At the instance of DCB CID., Mumbai, vide C.R.No.157/02, 75/03, 91/03 and 206/03) ] ] ] ] ...Complainant.
Versus
1.Sayyed Mohd. Hanif Abdul Rahim]
D-7, Salim Chawl, Chimatpada, ] Marol Naka, Andheri (East), ] Mumbai-59. ] 2.Ashrat @ Arshrad Shafiqu Ahmed] Ansari ] Juned Nagar, C.D.Barfiwala Rd,] Andheri (West), Mumbai-58. ] 3.Fehmida w/o Sayyed Mohd. Hanif]... Accused. D-7, Salim Chawl, Chimatpada, ] Marol Naka, Andheri (East), ] Mumbai-59. ] 4.Jahid Yusuf Patne
tendered
](A-4 Jahid is ] ] ] ]
pardon by the Court and thereafter he is examined as PW-2 by the prosecution)
Chandresh Upwan, B-Wing, R. No.104, Lodha Complex, Mira Road (E), Dist-Thane.
2Pota.Spl.Case1of2004
5.Mohd. Hasan @ Hasan Battrywala Sanjay Nagar, Hill No.3 Sunder Baug, Kurla (W) Mumbai-400 020. 6.Mohd. Rizwan @ Razwan Ladduwala Rajiv Gandhi Nagar Zopadpatti, Burmacell Kurla (East), Mumbai-400 070.
] ] ] ] ] ] ] ] ] ] ] ]
Case against accused no.5 Mohd. Hasan & accused No.6 Mohd. Rizwan is deemed to have been withdrawn as per Clause(a)of sub-section (3) of section 2 of the POTA (Repeal) Act,
2004 vide order dated 17/11/2008 passed on Exh.D-116
CORAM :
HIS HONOUR THE SPECIAL JUDGE UNDER POTA, 2002 SHRI M.R.PURANIK.(C.R.No.57)
DATE
: 27/07/2009 & 06/08/2009

for accused no.1. for accused no.2. for accused no.3. Public Prosecutor for the
Mr. Wahab Khan, Advocate Mr. Kunjuraman, Advocate Mr. S.R.Pasbola,Advocate Mr.Ujjwal Nikam, Special State/complainant.
JUDGMENT
1.
Accused
No.1
Sayyed
Mohd.
Hanif
Abdul
Rehman, accused No.2 Ashrat @ Arshad Shafiq Ahmed Ansari and accused No.3 Fehmida w/o Sayyed Mohd.
Hanif are facing trial of having committed offences under sections 120-B r/w sections 302, 307, 427 of IPC and under sections 3(2), 3(3), 4, 5 and 20 of Prevention of Terrorism Act, 2002, u/s 3, 4, 5 and
6 of Explosive Substances Act,1908, u/s 3 and 4 of Prevention of Damage to Public Property Act and u/s 5, 9(b) of Indian Explosives Act, 1884.
2.
Prosecution case is
as under :
There were series of bomb blasts in Mumbai City during the period December-2002 to August-2003. Out of the four such incidents, first was in respect of unexploded bomb kept below the rear seat in BEST bus No. MH-01-H 8765 of route No.336 near Seepz Bus Depot, MIDC, Andheri (East), Mumbai at about 21.40 hrs. on 2.12.2002. Offence to this effect was
registered at MIDC Police Station vide C.R.No.400 of 2002 u/s 120-B, 121-A, 122, 307 r/w 511 of IPC and u/s 5 of Explosive Substances Act and u/s 3,4, and 9 of Indian Explosives Act on the basis of the FIR
lodged by API Tanaji Jadhav (PW-63). 3.
Immediately after the occurrence, officers
of MIDC Police Station, panchas and Bomb Detection Disposal Squad arrived at Seepz Bus Depot and
thereafter PSI Girish Gode (PW-58)
attached to BDDS
put on bomb suit on his person and entered into the BEST bus. After noticing the suspicious article at the rear side of the bus, the same was wrapped by him in another bomb suit and it was taken out of the BEST bus and order to the same was kept the ingredients in of open place. In the suspicious
know
articles, PSI Girish Gode by way of
Cordex Method
and by using small detonator did a small explosion due to which the cardboard box kept in the cloth bag was burst and after seeing alarm clock and wires it was found that Time Bomb was Panchanama prepared panchas by (Ex-P-407) PSI to kept in the cloth bag. the above in effect presence (PW-56) was of and
Diwakar Francis
Sawant
Michel
D'souza
Pravinchandra Rathod.
The suspected articles were
encircled by sand bags and guards were appointed to protect the same.
4.
team
of
National
Security
Guard
was
called from Delhi which arrived on the next day and it defused the time bomb. The parts of the bomb and other material consisting 14 gelatine sticks, one detonator, one battery, one alarm clock, one black washer, one electric button, pieces of cardboard box, gray colour torn cloth bag and small pieces of sutali and plastic rope and other articles were
seized by PSI Diwakar Sawant in presence of panchas Shri Ramsurat Shukla (PW-57) and Gopinath Joshi vide panchanama (Ex-P-410).
5.
Seized articles were sent to the office of Science Laboratory, Kalina, Mumbai on
Forensic
5.12.2002 and Ex-P-428 is the C.A report to that effect. Statement of witnesses were recorded by PI
Wagh
and
thereafter
the
investigation
into
said
C.R.was taken over by DCB CID vide C.R.No.157 of 2002.
6.
Second incident of bomb blast occurred on
28.7.2003 at about 21.10 hrs in a BEST bus bearing No.MH-01-H-8246 plying on route No.340 at Karani Lane, LBS Road Junction, Ghatkopar (West), Mumbai. As a result of above blast two persons viz. Vilas Vishnu Mahendrakar and Shivbali @ Hublal Jagardev Yadav succumbed to the injuries and 60 passengers
became injured. Apart from that the vehicles i.e two auto-rickshaws and two motor cycles and several
shops in the vicinity got damaged. Due to the above blast damage was caused to lacs. bus public FIR and of private said Dilip
property incident
worth was
Rs.16.30 by
the Shri
lodged
conductor
Wankhede (PW-54) and it was recorded by PSI Shri D.N.Jadhav of Ghatkopar Police Station and on that basis offence was registered at Ghatkopar Police
Station vide C.R.No.235 of 2003 u/s 120-B, 302, 307, 326, 324, 427, 34 of IPC and u/s 3 of Explosive Substances Act and u/s 5 & 9(b) of Indian Explosives Act as well as u/s 3 of Prevention of Damage to Public Property Act.
7.
Investigation into C.R.No. 235 of 2003
was
carried out
by the officers of Ghatkopar Police Panchanama of
station from 28.7.2003 to 31.8.2003.
the scene of offence (Ex-P-380) was prepared by PI Shri R.C.Patil (PW-47) in presence of panchas. The
rear portion of the BEST bus including the last bench was completely damaged and only angles were
seen in the rear side body of the bus. Blood stains were found on the seats of the bus. Pieces of
glasses of the bus were found scattered on the spot. As a result of the above explosion the BEST bus of route No. 7 as well as three auto rickshaws, two motor cycles and one Qualis Jeep and nearby
buildings were
also damaged.
Pieces of tins, metal
pieces, currency notes and coins, pieces of glasses, mobiles, walkman, pencil cell were found scattered
on the scene of offence and these articles were seized. Aluminum pieces of BEST bus and glass
pieces which were scattered on the spot were sent to FSL, Kalina Mumbai. Blood sample was taken from the spot. Dead bodies of the two deceased persons were sent to Rajawadi Hospital where autopsy was
performed by the medical officer. All the injured persons were admitted in various hospitals and their statements were recorded by the officers of
Ghatkopar Police Station. Medical certificates of the injured persons and the postmortem reports of deceased persons were collected from the hospitals.
8.
Third and fourth incident of bomb blast took
place on one and the same day i.e on 25.8.2003 at Zaveri Bazar near Mumbadevi Temple at Gateway of India opposite Taj Hotel at noon time. On the
above day at about 12.40 hrs there was powerful bomb
explosion in a motor taxi bearing No.MH-02-R-2022 which was kept waiting at the junction of Dhanaji Street at Yusufali Road in front of Sagar Juice Center near Mumbadevi Temple, Mumbai. In the said
blast 36 persons were killed and 138 became injured and the property worth Rs.95 lacs including 41
vehicles, shops and residential houses were damaged. Taxi Driver Shri Lalasaheb Tilakdhari Singh (PW-27) lodged FIR (Ex-P-340) of the above bomb blast to L.T.Marg Police Station at about 12.45 hrs. which was recorded by PSI Suryakant Nikewadi (PW-42) and on that basis offence was registered at L.T.Marg Police Station vide C.R.No. 201 of 2003 u/s 120-B, 302, 307, 326, 324, 436 and 427 of IPC and u/s 3,4,5 and 6 of Indian Explosives Act. Metal pieces were scattered and blood stains were splattered on the
spot. While preparing the panchanama, officers of Forensic Science Laboratory were called on the spot, who inspected the scene of offence and took sample of blood mixed soil and metal pieces for the
purpose of analysis. damaged taxi was also
Number plate of the above found lying on the spot.
Licence of the taxi driver, badges, two key bundles, two diaries were seized which were found kept in the taxi. As a result of the above blast, the CNG gas cylinder the in the taxi of the was broken into pieces and were thrown on the
pieces
cylinder
terrace of the nearby buildings within the range of 300 meters. Those pieces were collected by PSI
Bajarnag Parab (PW-45) vide panchanama (Ex-P-376). Other taxis bearing No.MH-01.G-1652, MH-02-R-6831
and MH-02 4421 which were parked on the scene of offence were also extensively damaged. Two-wheeler vehicles as well as Santro Car, Maruti Car and
Indica Car bearing No.MH-01-GA-5275, MH-01 Y-5922 and MH-03-S-4785 were also damaged. Four other
taxis bearing No.MH-01-J 2127, MH-01-J-3888, MH-01-H 3327 and MH-01-H129 also got damaged due to the said blast. There was heap of pieces of glasses of the
vehicles upto 200 meters from the scene of offence.
9.
It took near about seven hours for PI Shri
Gopinath Chavan (PW-43) of L.T.Marg Police Station for preparing spot panchanama of the scene of
offence in C.R.No.201 of 2003 in presence of panchas Yogesh Chavan (PW-35) and Uday Zaveri. In all eleven articles consisting licence of the taxi, blood mixed soil, number plate of the taxi and metal pieces with blood stains, one railway identity card etc. came to be seized at the time of preparing spot panchanama and those were sent to Forensic Science Laboratory for analysis. Shops of the jewellers bearing shop Nos.2, 6, 7, 9 and 10 to 36 were also extensively damaged. The motor Taxi bearing No.MH-R 2022 in
which the bomb was planted was completely burnt and skeleton of the same was taken in possession of. Photographs of the scene of offence were taken and video shooting of the spot was also done. 10. Last bomb explosion of the series occurred
at 13.05 hrs. on 25.8.2003 in a motor taxi bearing
No.MH-02-R-2007 which was parked on the site of Pay & Park opposite to Hotel Taj at Gate Way of India, P.J.Ramchandani Marg, Colaba, Mumbai-400 005. In the said blast as many as 16 persons died on spot and 46 persons got injured. Near about 20 cars were found parked in the above parking lot and all were
massively damaged. Glasses of the windows of Hotel Taj which was situated on the opposite side facing towards sea also got broken and fell on the road. The motor taxi bearing No. MH-02-R-2007 which was parked on the spot got burst into the pieces and was thrown at the distance of near about 32 feet. The impact of the explosion was so forceful due which the lamps of the lamp-posts on the spot were broken and there were cracks to the parapet wall of the sea near Gate way of India. Crater was also developed near the scene of offence and the soil and stones found in the crater were seized under panchanama. Officers of the Forensic Science Laboratory, Mumbai were called on the spot after the bomb blast who
inspected
the
metal
pieces
as
well
as
soil
and
stones. Dust was spread on the nearby vehicles and the officers of F.S.L., Mumbai took swabs of the dust for chemical analysis. was Damaged inspected motor and taxi the
bearing
No.MH-02-R-2007
documents of the above taxi i.e insurance paper, R.C.Book and taxi badge kept therein were seized.
11.
It was police constable Shri Camilo Jokim
Reis P.C.No.27423 (PW-14) who was on duty in the vicinity reached first on the place of offence whose FIR (Ex-P-309) was recorded at about 13.10 hrs. by ACP Shri Vinodkumar Sharma (PW-92) and on that basis offence was registered at Colaba Police Station vide C.R.No.206 of 2003 u/s 302, 307, 427 r/w 120-B of IPC and u/s 5 and 9(b) of Explosives Act, u/s 3, 4,
5 and 6 of Explosive Substances Act, u/s 3 of Damage to Public Property Act and u/s 3 and 4 of POTA Act, 2002. Panchanama of scene of offence (Ex-P-318) was prepared by ACP Shri Vinodkumar Sharma (PW-92) in
presence of panchas i.e. Mukhtar Abdul
Majid Shaikh
(PW-17) and Mohd. Hakim Mohd. Salim Shaikh.
12.
Shri Kartik Pradhan (PW-16) was serving at
Pay & Park Site near Gate way of India who had issued parking receipt to the taxi driver of damaged taxi bearing No.MH-02-R-2007. A receipt book (Art.
28) was seized from the possession of Kartik Prahdan and his statement was also recorded by ACP Shri Shelar. Kartik Pradhan informed that the above
damaged taxi bearing No. MH-02-R-2007 was parked at Pay & Park area on the earlier day i.e on 24.8.2003 and counter foil of the parking receipt (Ex-P-316) to that effect was shown by him which was later on seized by the IO. He also said that the same taxi was parked on the site of Pay & Park on 25.8.2003 and parking receipt bearing No.566 dtd. 25.8.2003 (Ex-P-312A) was shown by him and the same was also seized by the IO. Pieces of CNG gas cylinder were found scattered at a distance of 250 meters from the
spot
and
those Shri of
were
taken
in
possession (PW-96)
of. took
Photographer photographs
Vasudev scene
Kadam of
the
offence.
Inquest
panchanamas of the dead bodies of sixteen deceased persons were drawn and after seeing the dead bodies of the deceased persons CMO of St.George Hospital, Dr.Ashok Shinde and Dr.P.R. Ghuse of G.T.Hospital issued provisional death certificates of the
deceased persons certifying that deceased were died due to multiple injuries due to bomb blast. The statements of injured persons were recorded. Their injury certificates were collected from the
concerned hospitals. Seized articles were sent to FSL, Mumbai for Chemical analysis.
13. Pandey
It was taxi driver Shri Shivnarayan Vasudev (PW-15) who drove taxi bearing No.MH-02-
R-2007 from the area of Western Suburb to South Mumbai on 24.8.2003 and 25.8.2003. After the bomb blast at Gate way of India which occurred on
25.8.2003, approached
taxi
driver
Shri
Shivnarayan Station and
Pandey gave
Colaba
Police
description of the passengers (suspected persons) who travelled He in also his taxi on 24.8.2003 of and
25.8.2003.
produced
receipt
parking
charges of his taxi MH-02-R-2007 to the officers of Colaba Police Station which was tallied with the counter foil of the receipt book (Art.2(28)) which came to be seized from Kartik Pradhan (PW-16).
Statement of Shivnaryana Pandey was recorded by PI Shelar (PW-93) of Colaba Police Station.
14.
Thus in all 54 persons were killed and 244
persons became injured and the property worth Rs. 1,60,00,000/- was damaged in the above three bomb blasts. Investigation in the above four C.Rs.
registered at concerned police stations was taken over by the Crime Branch vide DCB CID C.R.No.157 of 2002 (C.R.No.400/02 of MIDC Police Station), C.R.No. 75 of 2003 (C.R.No.235/03 of Ghatkopar Police
Station),
C.R.No.91/03
(C.R.No.201/03
of
L.T.Marg
Police Station) and C.R.No.86 of 2003 (C.R.No.206/03 of Colaba Police Station).
15.
Police
Officers
of
DCB
CID
of
Unit-XI
received secret information regarding the suspicious behaviour of accused No.2 Ashrat and therefore
accused No.2 Ashrat was apprehended by the team of the police officers consisting PI Savde, PSI Talekar (PW-98), PSI Kandalgaonkar (PW-99), PSI Vankoti
(PW-97), PSI Toradmal (PW-51) and the staff members on 31.8.2003 at about 15.30 hrs. He was thereafter extensively officers and interrogated during by the above accused police No.2
interrogation
Ashrat admitted his involvement in Ghatkopar BEST Bus Bomb blast. On the same day at about 20.20 hrs. he was arrested and arrest memo(Ex-P-385) was
prepared. Personal search of accused no.2 Ashrat was taken in presence of panchas Mukund Ingrulkar
(PW-50) and Shri Vijay Kadam. Following articles
came to be seized in the personal search of accused no.2 Ashrat: i) Motor driving licence in the name of no.2 Ashrat Ansari Shafiq Ahmed
accused Ansari. ii)
Identity Card issued by Janata party
in the name of Arshad Ansari to be a active member of the party. iii) Paper. iv) A white paper chit mentioning some Four paper cuttings of Urdu News
matter in Urdu language on one side and on other side the telephone No.6391553 was
mentioned. v) A white paper chit mentioning the
name of Zahid Yusuf Patni (Accused No.4) and his e-mail address shaabadahmed@yahoo. com. vi) A visiting card of Noor Electricals
owned
by
S.M.Hanif and the
(Accused mobile
No.1)
and
A.B.Shaikh
No.9892077831-
9892451164 of Nasir and land-line No.28527761 found of accused on the No.1 Hanif of were the
mentioned
overleaf
above visiting cards with the names Hanif and Nasir. vii) Seven passport size photographs, cash
amount of Rs.2,200/- and other miscellaneous articles.
The
said
articles
came
to
be
seized
from
the
possession of accused No.2 Ashrat by PSI Toradmal (PW-51) in presence of panchas vide seizure memo cum custody memo (Ex-P-385). Accused No.2 was thereafter taken to the office of Unit No.XI situated at
Kandivali.
16.
Accused
No.2
Ashrat
was
subjected
to
the
interrogation by the
officers of
unit No.XI at
Kandivli and he without any hesitation to the police officers that he himself
informed and his
associates i.e Nasir, Hanif (A-1) and Hanif's wife Fehmida (A-3) prepared bombs and placed the same in BEST bus of route No.336 on 2.12.2002 at Seepz and in a BEST bus of route No.340 at Ghatkopar on
28.7.2003.
He further spoke that he was ready to
show the place where the remaining material of the explosives was kept by him. Disclosure statement (Ex-P-393) accused to the above effect led was prepared officers and and
No.2
thereafter
police
panchas towards his house on first floor of the hutment in Juned Nagar, Juhu Galli, Andheri (West), Mumbai. tin box Accused entered in the room and produced a kept below the cot which contained 30
gelatine sticks, 3 alarm clocks, and 8 detonators and those were seized by PSI Vankoti (PW-97) in
presence of panchas Sunil Bhatia (PW-53) and Sameer Sayar vide panchanama (Ex.P-393-A).
17.
Accused No.2
Ashrat was thereafter taken
back to the office of DCB CID Unit-XI by the police offices and they were accompanied by panchas. thereafter informed the police officers would show them the place where the that bombs He he were
prepared by him and his associates. Accused No.2 thereafter led police officers and panchas towards the house of accused No.1 Hanif and accused No.3
Fehmida situated at Salim Chawl, room No.D-7, Chimat Pada, Marol, Andheri (East), Mumbai, where both the
above two accused persons (A-1 and A-3) and their two daughters Farheen and Sakira were found present. Accused No.2 Ashrat led police officers and panchas bombs were prepared Police officers
towards loft of the room where by him and his associates.
thereafter took search of house of accused no.1 and following documents came to be seized from the
cupboard of the house:

(i)
Passport
of
accused
no.1
Hanif
bearing No.Q-548661 dtd. 15.10.80 issued by
Mumbai Passport Office.

(ii)
Passport in the name of accused No.1 No.P-468148 dt.11.9.93 issued by
bearing
Jeddah Passport office.

(iii)
Passport in the name of acused No.3
Fehmida bearing No. A-3581902 dtd. 6.8.97 issued by Mumbai Passport office.
(iv)
Passport
in
the
name
of
Farheen
Mohd.
Hanif Sayyed (daughter of A-1 & A-3) 3525401 dtd. 6.8.97 issued
bearing No.A-
by Mumbai passport Office.

(v)
Passport in the name of Irfan Hanif Sayyed (Son of A-1 and A-3) bearing dtd. 8.8.97 issued by Mumbai
Mohd.
No. A-3527645
Passport office.
(vi)
Photo
identity
card
of
person
resident of Philton, Dubai, Jumeria.

(vii)
Visiting the
card phone
of
Arun of
Vaswani Chetan,
mentioning
numbers
Ashwin,
Masjid,
Ashrat
Shafiq
Ansari,
Shiraj Electricals on the overleaf of the card.

(viii)
Visiting card of Aziz in the name of
Mumbai Motors and the name of Nasir and his mobile No.9892451164 was found mentioned on its overleaf.
(ix)
Visiting
card
of
Noor
Electrical
owned by S.M.Hanif and the name of Nasir and his mobile No.9892077831 was found
mentioned on its overleaf.

(x)
Wallet containing cash of Rs.127/-
and driver badge of Cab bearing No.62652. 18. Accused No.2 thereafter pointed a water tank
adjacent to North-East wall of the home of accused no.1 and one gunny bag containing some material was found kept near the water tank. On opening the gunny bag following articles were found kept therein:
(i)
125
aluminum
clips
were
found
kept
in one cloth bag of khaki colour.

(ii)
Soldering machine along with plug
and wire.
(iii)
9 alarm clocks in various sizes of
Fangseng Co.
(iv)
One clipper of Super Eagle Co.(12
m.m.)
(v)
One polyester Filament Yarn role of
white color.
(vi) (vii)
one solder wire role. one polyester Yarn fitting machine
(Super eagle make).

(viii)
16 crackers of red colour.
19.
One cardboard box was also found kept on the
mezzanine floor and on opening the same it was found to contain necl 117 gelatine sticks and Nobel Gel - 80
Hingni Vardha
was found mentioned on each
stick. One corrugated box was found wrapped in a cloth and the same was found kept on the water tank
and on opening the same it was found contained 12 electronic detonators. All the above articles were seized by police in presence of panchas vide
panchanama (Ex.P-394-A) which was concluded at about 2.35 hrs on 1.9.2002. Accused No.1 Hanif, his wife Fehmida and their daughter Farheen were connection with BEST bus bomb arrested in case of
explosion
Ghatkopar vide C.R.No.75 of 2003 and custody memo to that effect were prepared. The arrested accused
persons alongwith the seized articles were taken to the office of DCB CID, Unit XI at Kandivli.
20. office
After taking some rest on reaching to the of Unit No.XI, accused No.1 led police
officers to the place where the gelatine sticks were hidden by him. He took police officers and panchas
towards Chimat Pada, in a lane near Maheshwari Hotel and pointed out towards Room No.14 in Salim chawl
which was found locked.
Accused No.1 Hanif opened
the lock with the key in his possession and entered the room. He was followed by police officers and panchas. Accused No.1 took out yellow colour gunny bag which was found kept below the cot and gelatine sticks were 58
found contained in the bag and
the said sticks came to be sized vide panchanama (Ex.P-395A).
21.
After arrest of accused Nos.1 to 3 they were
produced before Special Court on 1.9.2003. At that time accused No.1 made complaint of ill-health and
he was thereafter taken to Bhabha Hospital at Bandra for medical treatment and after getting discharged from the hospital he was produced before the Special Court on 2.9.2003 and he was later on remanded to police custody till 15.9.2003. Police custody remand of accused Nos.2 and 3 was already taken on
01.9.2003. It was revealed from the school record of accused Farheen (daughter of A-1 and A-3) that she
was minor at the time of commission of offence and therefore she was produced before the Juvenile Court at Dongri, Mumbai.
22.
Investigation into the offence of Ghatkopar
BEST bus bomb blast was being done by ACP Shri Walishetty remand he (PW-103). During the police 1 to custody 3 and
interrogated
accused
Nos.
during interrogation accused No.2 Ashrat disclosed that he himself, accused Hanif, his wife Fehmida and their daughter Farheen were involved in the offence of bomb blast. Accused No.2 on 4.9.2003 expressed his willingness to give confession. The above fact
was apprised by IO Shri Walishetty to Joint C.P. (Crime) who directed DCP Shri Vinod Lokhande (PW-88) of Zone-X to record the confession of accused no.2 Ashrat.
23.
On 11.9.2003 ACP Walishetty produced accused Zone-
No.2 Ashrat before DCP Shri Vinod Lokhande of
X and at that time DCP Lokhande explained
him that
he was not bound to make confession and if he made the same it could be used against him. The accused was given 24 hours time for reconsideration of his decision to make the confession and in the meantime he was lodged in the lock-up of Bandra-Kurla Complex Police station. He was produced on the next day i.e on 12.9.2003 before DCP Lokhande and he was again apprised by the DCP that he was not bound to make the confession and if it was made by him, the same
would be used as evidence against him. Upon such apprisation accused no.2 said that the time given to him for reconsideration his desire was to sufficient the and he
reiterated
make
confession.
Confession of accused no.2 Ashrat (part-II of the confession Ex-501A) was recorded by DCP Lokhande as per his say. Accused No.2 Ashrat was then produced before Chief Metropolitan Magistrate on the same day i.e on 12.9.2003 and his separate statement
confirming his confession was recorded by C.M.M.
Accused
no.2
in
the
above
confession
gave
all
necessary details pertaining to the role played by him and his associates in the bomb blasts at
Ghatkopar, Mumbadevi and Gateway of India.
24.
There were two bomb explosions on 25.8.2003.
The incident of bomb explosion near Mumbadevi Temple took place at about 12.40 hours on the above day and prior to that accused no.2 Ashrat communicated to deceased accused Nasir on his mobile 9892451164
through STD booth of PW-28 Dilip Yagnik on telephone No. 65389009 that he had kept the goods in the taxi near Mumbadevi Temple and work will be done. P-284 is the print out of the above call. Ex-
25.
Accused
Nasir
had
purchased
SIM
card
of
Airtel bearing No.9892451164 from a shop i.e Raj Electronics at Marol. Delivery challan as well as enrollment form to the above effect which are at ExP-276 and Ex-P-278 respectively were procured by IO.
Accused Nasir also purchased another SIM card of Airtel bearing No.9892077831 from Karishma
Electronics at Marol and Ex-P-275 is the challan to the above effect. PW-5 Ashok is the proprietor of Karishma Electronics and PW-4 Anil is the owner of the Raj Electronics. Their statements were recorded by IO.
26.
Police
officers
were
in
search
of
wanted
accused Nasir. They got concrete information that Nasir with his associates was likely to come near Ruparel College in a Maruti-800 Car with arms,
ammunitions and explosives on 12.9.2003. Thereafter PSI Sachin Kadam (PW-1), API Ahir, PSI Sabnis and the other staff members went near Ruparel college at Matunga (West) on the above day and they laid trap. A blue colour Maruti 800 Car was found coming there and it was accused Nasir who was driving the said car. Police officers asked Nasir to stop the car
but he paid no heed and the persons in the car took
out their revolvers and they started firing towards police. compelled associates, In retaliation PSI Sachin Kadam (PW-01) was to as open a fire of upon which Nasir Nasir and and his his
result
associate Hasan Habib sustained injuries. They were taken to KEM Hospital in mobile van and later on they were declared dead by the doctors. 92 gelatine sticks, 8 detonators, 2 alarm clocks and wire cutter were found in the dickey of Maruti 800 Car bearing No.BLM 6184. Offence to the above effect was
registered at Shivaji Park Police Station vide LAC No.487 of 2003 and a separate offence bearing
C.R.No.225 of 2003 was registered in the same police station about the encounter of wanted accused Nasir and his associate. Maruti 800 car and the explosives kept therein were seized by Shivaji Park Police
Station. Two revolvers, mobile, two SIM Cards, two credit cards, two driving licences, election cards and some chits were found on the dead body of Nasir and those articles were seized at the time of
preparing inquest panchanama (Ex-P.254).
27.
On 15.9.2003 police
custody of accused no.1
Hanif, accused no.2 Ashrat and accused no.3 Fehmida was extended till 26.9.2003. On 16.9.2003 accused Hanif and his wife Fehmida expressed their
willingness to give their confessions. Joint C.P. (Crime) therefore directed DCP Shri Lokhande to
record the confession of accused no.1 Hanif and DCP Mrs.Archana Tyagi was directed to record the
confession of accused no.3 Fehmida. Part-1 of the confession (Ex-P-506) of accused No.1 was recorded by DCP Shri Lokhande (PW-88) on 22.9.2003 and PartII of the confession(Ex-P-506A) of the same accused was recorded on 24.9.2003 procedure. Accused No.1 after following the due Hanif was then produced
before Chief Metropolitan Magistrate on 25.9.2003 and his separate statement (Ex-P-623) was recorded by C.M.M. Confession of accused Hanif was thereafter forwarded by C.M.M to Special court on 26.9.2003
vide covering letter Ex.P-506B.
28.
Accused No.3 Fehmida was produced before DCP
Mrs.Archana Tyagi (PW-90) on 22.9.2003 and after observing the formalities part-I of her confession (Ex-P-522) was recorded by DCP Mrs.Tyagi. Again she was produced before DCP Archana Tyagi on 24.9.2003 and after following the procedural formalities PartII of her confessional statement Ex-522-A came to be recorded. Accused No.3 Fehmida was later on produced before C.M.M. on 25.9.2003 and her separate
statement confirming the contents of the confession was recorded by C.M.M. and the said statement
alongwith her confession in Part-I and Part-II were sent by her to the Special Court.
29.
During
investigation
the
arrested
accused
persons and their associates were found involved in the commission of the above four offences.
Considering the magnitude of the offences and nature
of the criminal conspiracy hatched by the arrested and wanted accused persons, Joint C.P.(Crime) Shri Satyapal Singh appointed ACP Shri Suresh S.
Walishetty as chief Investigating officer to do the investigation in connection with all the above four offences of bomb blasts and the officers of the concerned police stations were directed to assist
Shri Walishetty in the investigation. Accused Nos.1
to 3 were lodged in Mumbai Central Prison.
30.
On 1.10.2003 test identification parade of
accused no.1 Hanif, accused No.2 Ashrat and accused No.3 Fehmida was held at Mumbai Central Prison by
SEO Shri Waman Sapre (PW-52). PW-46 Anil Mulchand Vishwakarma was the witness in the above parade. who is a carpenter and on 28.7.2003 he had been to
Andheri (East) for doing work and on the same day while returning back towards Ghatkopar in BEST bus of route No.340 he was pushed by a man and a veiled woman while getting down hurriedly from the BEST bus and on that count there was quarrel in between PW-46
and the above two passengers. Accused No.2 Ashrat and Accused No.3 Fehmida were identified by PW-46 Anil Vishwakarma as the persons who had quarrel with him while getting down from BEST bus at Marol Pipe Line Stop. Accused by the No.1 Hanif was however is not the
identified
witness.
Ex-P-389
memorandum of the TIP prepared by SEO Shri Waman Sapre. Accused No.3 Fehmida was later on shifted to Byculla District Prison for woman.
31.
On 11.10.2003 TIP of accused nos.1 and 2 was
again held in Mumbai Central Prison by SEO Shri Waman Sapre in connection with C.R.No.235 of 2003 of Ghatkopar Police Station. On the same day TIP of Accused no.3 Fehmida was held in Byculla District Prison. Dilip Wankhede (PW-54) was the conductor of BEST bus of route No.340. The above witness has identified accused no.2 Ashrat saying that it was the same person who boarded BEST bus of route No.
340 at Andheri Bust Stop alongwith one Burkha clad
lady to whom he issued ticket for Asalpha bus stop. The same person had taken seat alongwith the burkha clad lady on the rear side of the bus. PW-54 Dilip Wankhede has however not identified accused no.1 Hanif, but accused no.3 Fehmida was identified by him as a burkha clad woman who boarded the BEST bus of route no.340 at Andheri stop alongwith a person who had taken BEST bus ticket for Asalpha stop. ExP-391 is the memorandum of the above TIP.
32.
On 06.10.2003 the identification parade of
accused No.1 Hanif and accused No.2 Ashrat was held at Mumbai Central Prison by Special Metropolitan Magistrate Shri Madhukar Bodke (PW-18) in C.R.No.206 of 2003 registered at Colaba Police Station. Nafiz Ahmed Khan (PW-19), Shivnarayan Vasudev Pandey
(PW-15) and Ramchandra Shitalprasad Gupta (PW-20) were the witnesses in the above parade.
33.
PW-19
Nafiz
Ahmed
Khan
is
the
owner
of
garment factory situated at Juhu Lane, Samata Nagar, Andheri (West,) Mumbai. Accused No.2 Ashrat is
residing near his shop since many years. He saw accused no.1 many times coming to the house of
accused no.2. the house of
On 25.8.2003 accused no.1 had been to accused no.2 and the rickshaw was
wrongly parked by accused no.1 in front of the shop of PW-19 and on that count there was quarrel in between accused no.1 and the above witness. PW-19
Nafiz Ahmed Khan has identified accused no.2 in the parade saying that he was the same person who was
residing adjacent to his shop since long and he was the friend of accused no.1.
34.
PW-15
Shivnarayan
Vasudev
Pandey
is
the
owner of the taxi bearing No.MH-01-R 2007 and he himself is driving the taxi in Mumbai since the year 1982. Accused no.1 Hanif, his wife Fehmida and
their two daughters travelled in the above taxi of PW-15 Shivnarayan Pandey on 24.8.2003 and 25.8.2003
from Azad galli, Andheri (West) to Colaba.
Accused
no.1 had kept one airbag in the dickey of the taxi and asked the taxi driver to take the taxi towards Arthur Bunder Road at Colaba and to park the said taxi in front of Hotel Taj in pay & park site. The
same accused had instructed the witness to stay in the taxi till the arrival of accused no.1 and his family members. PW-15 Shivnarayan identified accused no.1 Hanif in the above parade saying that he was
the same person who put his airbag in the dickey of the taxi and asked him to take the taxi towards Arthur Bunder Road at Colaba and park the same in front of Hotel Taj in pay & park site and should not leave the taxi till his arrival.
35.
PW-20 Ramchandra Shitalprasad Gupta has also accused no.1 Hanif in the above TIP
identified
saying that the same accused alongwith his wife and two daughters travelled in the taxi of his friend Shivnarayan Pandey. This witness however did not
identify accused no.2 Ashrat in the above parade. Ex-P-323 is the memorandum of the above T.I.P. which was held on 6.10.2003 in Mumbai Central Prison.
36.
Accused no.3 Fehmida was shifted to Byculla
prison and her TIP was held on the same day i.e on 6.10.2003 by Special Metropolitan Magistrate Madhukar Bodke at Byculla District Prison. Shri In the
above parade witnesses Shivnarayan Pandey (PW-15) identified accused no.3 as a woman who alongwith her husband and two daughters travelled in his taxi on 25.8.2003 and he was asked to park the taxi at Gateway of India in pay and park site in front of Taj Hotel. Nafiz Ahmed Witnesses Ramchandra Gupta (PW-20) and Khan (PW-19) have also identified Ex-P-324
accused no.3 Fehmida in the above parade.
is the memorandum panchanama of the above TIP.
37.
TIP of accused no.1 Hanif and accused no.2
Ashrat was again held in Mumbai Central Prison by
Special Executive Officer Shri Sudhir Surve (PW-59) in C.R. No. 157 of 2002 of DCB CID on 8.10.2003. In the above parade Manoj Patil (PW-60) identified
accused no.1 Hanif and accused no.2 Ashrat. Accused no.1 was identified as a person who was in the queue in front of him for boarding BEST bus of route No. 312 at about 5.30 p.m. on 2.12.2002 at Seepz Bus depot and the same person handed over a cloth bag to accused no.2 Ashrat who later on took seat on the rear side in the above bus and thereafter accused no.1 Hanif left the spot.
38.
Shri Dilip Masram (PW-62) was the conductor He identified
in the above bus of route No.312.
accused no.2 Ashrat as a person who had a quarrel with another passenger at Seepz Bus depot and the quarrel was subsided by him. a cloth bag the bus. Same person alongwith
had taken the seat on the rear side of witness (PW-62) has however not
This
identified accused no.1. Ex-P-415 is the memorandum
pertaining to the above TIP prepared by SEO Shri Sudhir Surve.
39.
PW-28 Dilip Yagnik was working in STD/PCO
Booth of Kantilal Jain situated at 5, Vitthal Wadi, Zaveri Bazar, Mumbai-400 002. This witness has
identified accused no.2 Ashrat as
a person who on
25.8.2003 at about 12.10 hrs. made telephone call from the above PCO to one Nasir saying that he had kept the goods in the and work would be done. taxi near Mumbadevi Temple Witness Harish (PW-30) had
been towards Mumbadevi Temple area on the above day who wanted to hire taxi to go to his home at
C.P.Tank and on seeing the taxi halted at Zaveri Bazar, he tried to board the taxi bearing No. MH-01 H-2022 and at that time accused no.2 shouted him saying that taxi was not empty and the witness was directed to go ahead and shortly thereafter there was an explosion in the same taxi. Kunjbihari
Ramprasad Pandey (PW-29) and Kutty Manappa Shetty
(PW-33) are the hawkers doing business at Dhanji Street Naka. Accused No.2 and Nasir had been to the
area of Dhanji Street Naka at about 6.00 p.m. on 24.8.2003 and they had a quarrel with one motor cyclist and the quarrel was separated by the above hawkers. Memorandum panchanama of the TIP (Ex-P-192) to the above effect was prepared by SEO Shri
Dushyant M. Oza (PW-41) Central Prison.
on 9.10.2003 at Mumbai
40.
Accused No.4 Jahid Patne was in Dubai at the
time of the above bomb blasts. He watched news item on television pertaining to the above bomb blast incidents in India. When he came to know that
several persons lost their lives and many persons became injured in the above bomb blasts, he became restless and was unable to sleep. He was repenting for his misdeeds. He then went to local Masjid and
apprised Maulana by name Jafar Sahab that he was repenting for his act of being participated in the
conspiracy of causing bomb blasts in India.
He was
told by Maulana that due to his illegal act, the persons including woman and children of both the casts (Hindu and Muslim) were killed and it was against the Muslim decided religion. to return Accused back to No.4 Jahid to
thereafter
India
surrender before police.
He thereafter returned to
India on 01.10.2003. He was appraised by his family members that police from Bandra Crime Branch had been to his house for making inquiries. Then he
along with his elder brother went to the office of Bandra Crime Branch. inquiry credible with A-4 Chief IO Shri. Walishetty made Jahid that from Jahid whom was he one received of the
information
conspirators of the offences of bomb blasts.
He was
therefore arrested by chief IO Shri. Walishetty on 02/10/2003 in DCB, CID C.R.No.75/2003. On the same
day he was produced before the Special Court which remanded him to police custody till 17/10/2003 which was extended upto 30/10/2003.
41.
During the course of interrogation accused
no.4 Jahid expressed his willingness on 16.10.2003 to give the confession. before DCP of Zone-VII On 21.10.2003 he was taken Shri Dhananjay Kamlakar
(PW-12) and on that day Part-I (Ex-P-264) of his confession was recorded. After following the due
procedure Part-II of the confessional statement (ExP-264A) of the same accused was recorded by DCP Shri Kamlakar on 23.10.2003 and on the same day he was produced before C.M.M. Statement of accused no.4 was recorded by C.M.M. confirming the contents of his confession and later on statement of the accused no. 4 alongwith his confessional statement was sent to Special Court.
42.
Accused No.4 Jahid was remanded to judicial
custody on 30.10.2003.
43.
The officers of DCB, CID, Unit-VII received
reliable
information
about
the
involvement
of
accused no.5 Batterywala and accused no.6 Ladduwala in the explosion of bomb blasts at Gateway of India and Zaveri were Bazaar. Both in the above two area accused by the
persons
arrested
Ghatkopar
police officers of Unit No.VII on 05/11/2003 and they were produced before the Special Court on the same day. Special Court remanded both the accused
persons to police custody till 19/11/2003 which was further extended till 01/12/2003.
44.
During interrogation A-5 Hasan Batterywala
gave information to IO on 10.11.2003 that he would show the place where the explosives were kept by him. Memorandum (Ex-297) regarding the above
information was reduced to writing and thereafter accused no.5 led IO and panchas towards his battery shop at Kolhapur Garage, L.B.S. Road, Kurla (W), Mumbai from where he produced 3 gelatine Sticks and RDX powder weighing 750 gms. which was kept in one
cardboard box.
Above articles came to be seized in
presence of panchas vide panchanama (Ex-P-297A).
45.
On
13/11/2003
accused
no.6
Ladduwala,
informed the IO that he would show the place where the explosive material was kept by him which was
used while exploding bombs in Zaveri Bazar and at Gateway of India. In consequence of above
information, 2 detonators came to be seized by IO from a hut situated at Gulshan Nagar Slum Area near Shahad Railway Station, Shahad (E), District: Thane vide panchanama (Ex-P-291A).
46.
Accused on
no.5
Batterywala
and
Accused
No.6 to
Ladduwala
14/11/2003
expressed
willingness
record their confession and this fact was apprised by ACP Shri Walishetty (IO) to Joint C.P. (Crime) who directed DCP Shri. Amitabh Gupta (PW-89) and DCP Shri Ankush Shinde (PW-91) to record the confession of above two accused persons. DCP (Preventive) Shri
Amitabh Gupta (PW-89) recorded part-I (Ex-P-516) of the confessional on statement and to of accused part-II be of no.5 the on
Batterywala confession
25/11/2003 came
(Ex-516A)
recorded
27/11/2003 after following the due procedure. On the same day, accused no.5 Batterywala was produced
before the Chief Metropolitan Magistrate. Part-I of the confessional statement (Ex-P-532) of accused no. 6 Ladduwala was recorded by DCP Zone-XII Shri Ankush Shinde on 25/11/2003 and part-II of the confession (Ex-P-532A) was recorded on 27/11/2003. day accused no.6 Ladduwala was On the same before
produced
C.M.M. Both the accused persons narrated the whole story before DCP involving themselves and other coaccused persons in the commission of offence of bomb blasts.
47.
After
doing
the
investigation
of
all
the
four offences it was transpired that accused no.1 Sayyed Mohd. Hanif belonged to terrorist
organization
i.e
Lashkar-E-Toyaba
committed
terrorist activities in Mumbai. He from Dubai and
came to India
with the help of his wife accused
no.3 Fehmida, slain terrorist Nasir Ahmed Ansari, accused No.2 Ashrat, accused No.5 Hasan Batterywala and accused acts No.6 in Rizwan Mumbai of Ladduwala by committed the
terrorist bombs. In
City the
exploding
pursuance
criminal
conspiracy
hatched by persons, BEST Bus
accused nos. 1 to 6 and wanted accused accused No.2 Asrhat planted timer bomb in bearing No. MH-01 H-8765 at Seepz on
2.12.2002 and the same accused with the help of accused No.3 Fehmida planted bomb in BEST bus of route No.340 on 28.7.2003. Accused No.2 on 25.8.2003 also planted bomb in motor taxi bearing No.MH-02 R-2022 near Mumbadevi and it was accused no.1 Hanif with the assistance of his wife Fehmida (A-3)
planted bomb in motor taxi bearing No. MH-02 R-2007 which was exploded at Gateway of India at about 13.10 hrs on 25.8.2003. As a result of above three
bomb
explosions
54
persons
were
killed
and
244
persons sustained injuries and property worth Rs. 1,60,00,000/- was damaged.
48.
After
procuring
the
reports
of
Forensic
Science Laboratory and reports of Joint Controller of Explosives regarding the examination of seized material and after of and getting Death the postmortem Certificates reports reports/ of of the the
Provisional deceased
Cause
persons
injury
injured persons and after receipt of the the Central Government under for the
consent of of of the the
prosecution provisions
accused
persons
Explosive Substances Act, 1908 and after receipt of the reports from various agencies regarding the
assessment/valuation of the damaged property, the Chief Investigating Officer ACP Shri. Walishetty
submitted proposal to Government of Maharashtra for according sanction to prosecute the accused persons under the provisions of Prevention of Terrorism Act,
2002. along
After having examined the material placed with the proposal, the Government of
Maharashtra on 04/02/2004 pleased to accord sanction to prosecute accused nos.1 to 6 under section 3, 4, 5(1) and 20 of Prevention of Terrorism Act, 2002.
49.
After
getting
order
of
sanction
under
section 50 of POTA 2002, IO Shri Walishetty filed chargesheet against accused Nos.1 to 6 under section 120-B r/w sec. 302, 307, 326, 324 IPC, u/s 3, 4, 5 of Explosive Substances Act 1908, u/s 5 and 9(B) of Indian Explosives Act 1884, u/s 3, 4, 5 and 20 of Prevention Shafakat, of Abid, Terrorist Khalid, Act, 2002, and accused Bilal,
Maqsud,
Jahangir,
Samiulla and Rehman are shown as wanted accused in the chargesheet.
50.
On
the
basis
of
the
chargesheet
referred
above, this court
took cognizance of the offences and on the
referred in the cahrgesheet on 5.2.2004
same day copies of the chargesheet were supplied to all the accused persons and thereafter accused nos. 1 to 6 were sent to judicial custody as per sec. 309(2) of Cr.P.C.
51.
On
5.5.2004 and
Investigating Mr.Ujjwal
officer Nikam
Shri made
Walishetty
Spl.P.P.
application Ex-P-2 under section 307 of Cr.P.C. for tendering pardon to accused No.4 Jahid Patne. My Ld. Predecessor request of after making came inquiry to the into the above that
Spl.P.P.
conclusion
evidence of accused no.4 is essential for the just decision of this case and it is therefore necessary to grant him pardon upon condition of his making full and true disclosure of all the facts and
circumstances of the case. Accused No.4 Jahid became ready to comply with the above condition for
accepting the pardon. After showing willingness to the above effect by accused no.4 Jahid Patne he was tendered pardon by this court as per section 307 of
Cr.P.C. and therefore he (PW-2) evidence by the of
was examined as approver After recording his the bail
prosecution. approver (PW-2
Jahid)
application bearing No.23 of 2005 was allowed by this court on 30.9.2005.
52.
After
going
through
the
chargesheet
and
after hearing the Spl.P.P. and counsels appearing for the accused persons, this court on 29.6.2004 pleased to frame the charge(Ex-P-5) against accused persons viz. Sayyed Mohd. Hanif Abdul Rahim (A-1), Ashrat @ Arshad Shafiq Ahmed Ansari (A-2), Fehamida
w/o Sayyed Mohd. Hanif (A-3), Mohd.Hasan Mohd.Anas Shaikh @ Hasan Batterywala (A-4) and Mohd.Rizwan Mohd. Issaq ansari @ Rizwan Ladduwala (A-5) under
section 120-B of IPC, 120-B of IPC r/w sec. 302, 307 and 427 of IPC, 120-B of IPC r/w sec. 3(2) and 3(3), 4, 5(1) and 20 of the Prevention of Terrorism Act, 2002, under sec. 3 and 4 of Damage to Public 6 of
Property Act, 1984, under sec. 3, 4, 5 and
Explosive Substances Act, 1908 and under sec. 5 and 9(B) of Explosives Act, 1884. Accused Nos.4 and 5 have been charged separately under sec. 3 of
Explosive Substances Act, 1908. The charge was read over and explained to the accused persons in their mother tongue to which they pleaded not guilty and their statements denying charges have been recorded separately. The cross-examination of IO,
examination of the accused Nos. 1 to 3 under section 313 of Cr.P.C. and the defence evidence led by them disclose that the defence of accused Nos. 1 to 3 is of false implication.
53.
In response to the application moved by the
prosecution u/s.294 of Cr.P.C. defence have admitted the genuineness of the Cause of Death Certificates, Provisional Death Certificates, Postmortem Notes and Inquest Panchanamas of deceased persons as well as the medical Certificates of the injured persons and therefore these documents have been exhibited. List
of 54 deceased persons is given below whose cause of death certificates are exhibited as under : Sr.No. Name of the deceased Exhibit No. P-19 colly P-20 & P-21 P-8 P-89 P-90 P-91 P-92 P-94 P-95 P-96 P-97 P-98 P-99 P-100 P-101 P-102 P-103 P-104 P-193 P-194 P-195 P-196 P-197 P-198 P-199
1 Vilas Mahindrakar 2 Shivbali Yadav 3 Riyabhai Bharwad 4 Ranchodbhai Bharwad 5 Nagjibhai Bharwad 6 Revabhai Bharwad 7 Iqbal Gani 9 Amarbhai Bharwad 10 Jaysingh Mallah 11 Jagmalbhai Bharwad 12 Krushna Thakur 13 Smt.Salu Yadav 14 Poonabhai Bharwad 15 Hanmanta Yadav 16 Kukabhai 17 Laxmi Yadav 18 Unknown 19 Smt.Lata Jadhav 20 Vinod Jain 21 Sadik Sharif 22 Arvind Maji 23 Anand Dey 24 Parmeshwar Tiwari 25 Dongarshi Palan 26 Babulal Purohit
8 Iqbal (Full name not known) P-93
Sr.No.
Name of the deceased
Exhibit No. P-200 P-201 P-202 P-203 P-204 P-205 P-206 P-207 P-208 P-209 P-210 P-211 P-212 P-213 P-214 P-215 P-216 P-217 P-218 P-219 P-220 P-221 P-222 P-223 P-224 P-225 P-226 P-227
27 Ishta Narayan Tiwari 28 Surendra Pandey 29 Arun Gadgil 30 Gokul Hussain Shaikh 31 Harshbahadur Shyam Singh 32 Umeshchandra Upadhyay 33 Mohd. Islam Ansari 34 Shaikh Ibrahim 35 Mridul Mandal 36 Ramdas Dubey 37 Gorakhnath Sutar 38 Mohini Rakhade 39 Tapan Das 40 Jatashankar Dubey 41 Jitendra Dubey 42 Vishwanath Dhoda 43 Gayatri Verulkar 44 Vinod Bhosale 45 Laxmi Kule 46 Hari Wedekar 47 Sandeep Karwade 48 Mohd. Sohail Vadiwala 49 Surjeet Sasmal 50 Indrajit Ghosh 51 Omnath Dhuria 52 Ramsurat Chauhan 53 Ishwar Bharate 54 Smita Bansode
54.
Exhibit-16 and 17, Exh.80 to 85 and Exh.156
to 191 are the inquest panchanamas of the deceased persons referred above. The genuineness of the
injury certificates of the following persons have not been disputed and therefore those documents have been exhibited; list of which is given below. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. Yogesh Khsirsagar. (Exh.22) Vinayak Kamat. Indramani Pal. Viren Shrinath. Ram Murat Yadav. Ashok Singh. Mukund Panase. Naresh Arora. Raghunath Mulya. Rahul Mane. Kisan Bhikaji. Shivaji Mali. (Exh.23) (Exh.24) (Exh.25) (Exh.26) (Exh.27) (Exh.28) (Exh.29) (Exh.30) (Exh.31) (Exh.32) (Exh.33)
Prakash Chaudhari. (Exh.34) Nishan Das. (Exh.35)
Vilas Harishchandra(Exh.36) Nilam Jadhav. (Exh.37)
Pratap Shivshankar (Exh.38) Mohd.Ibrahim Shaikh(Exh.39)
19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.
Ram Gopal Kedarnath(Exh.40) Mahesh Chaurasia. (Exh.41) Ravinchandra Lotia (Exh.42) Atul Keria. (Exh.43)
Vivek Mahindrakar. (Exh.44) Rahil Khan. Govind Singh. Pratap Jha. (Exh.45) (Exh.46) (Exh.47)
Mohd.Vaseem Abdul Hanid (Exh.48) Haribhai Ramchandra(Exh.49) Gangubai Sadashiv (Exh.50) Pravin Abhimanyu. (Exh.51) Santosh Ambolkar. (Exh.52) Manish Singh. Vasdant Bondre. Dilip Wankhede. (Exh.53) (Exh.54) (Exh.55)
Manohar Matondkar. (Exh.56) Haridev Yadav. Abdul Rehman. Shamji Varma. Baban Bhapkar. (Exh.57) (Exh.58) (Exh.59) (Exh.60)
Kalpesh Vengurlekar(Exh.61) Salim Altaf. Ganpat Ghame. Dyandev Daund. (Exh.62) (Exh.63) (Exh.64)
Anil Vishwakarma. (Exh.65) Rahul Maruti. (Exh.66)
46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72.
Mukeshbhai Kothari (Exh.67) Naresh Arora. Veljibhai Shah. (Exh.68) (Exh.69)
Ramesh Bhanushali (Exh.70) Rajul Kisan Gaikwad(Exh.71) Gopinath Palange. (Exh.72) Parshuram Wadkar. (Exh.73) Oval Khan. Shantaram Gurav. Abdul Khan. Sridhar Naidu. Kalpesh Gala. Sunil Vispute. Ravindra Gupta. Kasiben. Nisha. Mahesh Lakhme. Ramkisan Verma. Ashok Shinde. Vijay Khande. (Exh.74) (Exh.75) (Exh.76) (Exh.77) (Exh.78) (Exh.79) (Exh.P-105) (Exh.P-106) (Exh.P-107) (Exh.P-108) (Exh.P-109) (Exh.P-110) (Exh.P-111)
Prabhakar Kedare. (Exh.P-112) Kisan Chavan. Master Ashwin. (Exh.P-113) (Exh.P-114)
Master Ambadas Chavan (Exh.P0115) Savita Yadav. Suhagi Bibi. (Exh.P-116) (Exh.P-117)
Roshanlal Tiwari. (Exh.P-118)
73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99.
Maniben. Kishor Shinde. Anil Lalwani. Amit. Sikander Tiwari. Rajiv Mahato. Abdul Qayoom. Navin Shrif. Lokesh.
(Exh.P-119) (Exh.P-120) (Exh.P-121) (Exh.P-122) (Exh.P-123) (Exh.P-124) (Exh.P-125) (Exh.P-126) (Exh.P-127) (Exh.P-128)
Ramesh Tayanna Andhrij Fakir Kadir. Arif Sayyad. Anita Sachdeva. Pravin Janu. Ramesh Kitto.
(Exh.P-129) (Exh.P-130) (Exh.P-131) (Exh.P-132) (Exh.P-133) (Exh.P-134)
Ramesh Ghadigaonkar. Daval Nanna.
(Exh.P-135)
Sham Sunder Gowd. (Exh.P-136) Vijay Singh. Raju. (Exh.P-137) (Exh.P-138) (Exh.P-139)
Salauddin Ibrahim Shaikh Gorakh Deshmukh. Haresh Soni. Kamabhai. Shaikh Ibrahim. Sakpal Shivaji. Laxmikant Dubey.
(Exh.P-140) (Exh.P-141) (Exh.P-142) (Exh.P-143) (Exh.P-144) (Exh.P-145)
100. Sudhakar N.Gowda. (Exh.P-228) 101. Firoz Ahmed Sharif (Exh.P-229) 102. Salim Ahmed. (Exh.P-230)
103. Mr.Mohammad Ismael Ansari (Exh.P-231) 104. Mr.Imran Suleman Jariwala. 105. Mr.Ajmal Juber Khan. (Exh.P-232)
(Exh.P-233)
106. Maimoona Ashfaq Chasmawala. (Exh.P-234) 107. Mrs.Rubina Amin Pinwala. (Exh.P-235) 108. Mr.Kapil Dilip Ruparel. (Exh.P-236)
109. Mr.Raju Sawant. (Exh.P-237) 110. Bhavesh Sumanchandra Joshi. (Exh.P-238) 111. Mr.Rintu Das. (Exh.P-239) (Exh.P-240) (Exh.P-241)
112. Mr.Pravinkumar Bhat.
113. Mr.Rakeshlal Shankar Vyas 114. Mr.Sharad Jawar 115. Mr.Mukesh Tolani 116. Mr.Dipak Vadhani
(Exh.P-242) (Exh.P-243) (Exh.P-244) (Exh.P-245)
117. Mr.Vijay Laxmijant Mishra
118. Mr.Sarvedar Dubey (Exh.P-246) 119. Mr.Vinaykumar Dubey (Exh.P-247) (Exh.P-457)
120. Mr.Rupesh Rampad Sasmal
121. Mr.Hukum Singh. (Exh.P-458) 122. Mr.Ram Asure. (Exh.P-459) 123. Mr.Faizan Khan. (Exh.P-460) 124. Mr.Shivkumar. (Exh.P-461) (Exh.P-462) (Exh.P-463)
125. Mr.Arvind Kumar
126. Mr.Pakash Anil Shete
127. Haresh Pujari.
(Exh.P-464)
128. Mr.Maruti Ithape. (Exh.P-465) 129. Mr.Ragu Adhikari (Exh.P-466)
130. Mr.Chandrabhan Pahtida (Exh.P-467) 131. Mr.Anand Gauda. (Exh.P-468) 132. Mr.Shailendra Gupta. (Exh.P-469) (Exh.P-470)
133. Mr.Arun Kumar Rawal.
134. Mr.Agrundar Gupta (Exh.P-471) 135. Mr.Rajaram Krishna Chaguule. (Exh.P-472) 136. Mr.Rakesh Chourasiya. 137. Mr.Sinkan Yadav. (Exh.P-473)
(Exh.P-474)
138. Mr.Keshav Pujari. (Exh.P-475) 139. Mr.Sunil M.Khade. (Exh.P-476) 140. Mr.Hanumant More. (Exh.P-477) 141. Mr.Anilkumar Gupta. (Exh.P-478) 142. Mr.Subrato Mandal. (Exh.P-479) 143. Smt. Santa Sadhan Gharui (Exh.P-480)
144. Mr.Boomanji Pujari (Exh.P-481) 145. Mr.Bhulan Gaud. (Exh.P-482) 146. Mr.Vijay Kate. (Exh.P-483) 147. Smt.Kamla Maurya. (Exh.P-485) 148. Mr.Suleman Abdulla (Exh.P485) 149. Mr.K.M.SDhetty. (Exh.P-486) 150. Smt.Kashiben Lalji (Exh.P-487) 151. Mr.Ramesh Gauda (Exh.P-488)
152. Mr.Premchand Yadav.(Exh.P-489) 153. Mr.Navinbhai Soni (Exh.P-490)
154. Mr.Alpesh More.
(Exh.P-491) (Exh.P-492)
155. Smt.Nori Bniad B.Handria.
156. Mr.Lalsaheb Tolokdha Singh.(Exh.P-493)
55.
During
the
course
of
investigation,
Investigating Officer seized blood stained clothes of injured and deceased persons under common
panchanama Exhibits 15, 18 and 147 to 152. Apart from the above documents, the map of place of
offence of DCB CID CR No.157 of 2002, 2003,
CR. No.75 of
CR No.91 of 2003 and CR No.86 of 2003 have
also not been disputed by the defence, therefore, these documents are marked as Exh.P-13, Ex.P-146 and Ex.P-307A seized respectively. was destroyed Exh.P-14, During and
investigation
RDX
panchanama to that effect prepared on 13/08/2004 has also not been disputed by the accused and therefore it is marked as Exh.P-294 colly.
56.
Prosecution
has
examined
as
many
as
103
witnesses, out of which the role of 43 witnesses is
referred above. Prosecution has also examined 28 witnesses i.e PW-23, PW-25, PW-34, PW-36 and PW-64
to PW-87 on the point that their nearest relatives lost lives in the twin bomb blast dtd. 25.8.2003.
Apart from the above witnesses PW-3 Rajendra Pawar, PW-4 Anil Parmar, PW-5 Ashok Sakpal, PW-6 Manoj
Patil and PW-7 Ghanshyam Dubey have been examined on the point of purchase of SIM cards of Airtel bearing No. 9892451164 and 9892077831 by Nasir and accused no.1 Hanif. PW-11 Jyotsna Officer Chandratre who held Nasir at was TIP the of
Special
Executive of
photographs
slain
terrorist
Colaba
Police Station on 3.1.2004. PW-13 Pandit Bhandalkar has prepared the sketch of the scene of offences in CR No.91 of 2003 and in CR No.206 of 2003. PW-16
Kartik Pradhan had issued parking receipt to taxi driver PW-15 Shivnarayan Pandey pertaining to the parking of his vehicle at Pay and Park in front of
Hotel Taj at Gateway of India, Mumbai on 24.8.2003 and 25.8.2003. PW-48 Sambhaji is examined by
prosecution on the point that he has performed last rites on the dead body of his brother-in-law Vilas who succumbed to the injuries in Ghatkopar blast dtd. 28.7.2003.
57.
PW-21
Amit
Patkar,
PW-22
Salauddin
Shaikh,
PW-24 Ramabhai Bharwad, PW-37 Sonaba, PW-38 Deepak Wadhwani and PW-49 Kalpesh sustained injuries in the above bomb blast. PW-26 PI Rajaram Joshi had drawn PW-28 Dilip
spot panchanama in CR NO.86 of 2003.
Yagnik is examined on the point that he was working in the PCO situated in Zaveri Bazar who had over heard the telephonic communication in between Blood
accused no.2 Ashrat with his associate Nasir.
stained clothes of complainant in CR No.91 of 2003 were seized in presence of PW-39 Jaya Shetty. PW-44 Shyamrao Jedhe was working as ACP of Pydhonie
Division who did part of investigation in CR No.91 of 2003. BEST Bus conductor Shri Sanjay Patil is examined as PW-55 as he has lodged FIR in DCB CID CR
No.157
of
2002.
District
Magistrate,
Mumbai
Dr.Pradeep Vyas is examined as PW-100 to prove the consent Ex.P-565 for lodging prosecution against the accused persons under the provisions of [The]
Explosive Substances Act, 1908 in connection with DCB CID CR No.86 of 2003 and CR No.91 of 2003. The evidence of District Magistrate, Mumbai Suburban
District Shri Sambhaji Zende is recorded as PW-101 to prove the consent (Ex.P-568 colly) for launching prosecution against the accused persons in
connection with DCB CID CR No.157 of 2002 and 75 of 2002. Shri Prakash Hirlekar (PW-102) Dy. Secretary Home Department, Mantralaya, Mumabi is examined to prove the sanction (Ex-P-573) for prosecuting
accused persons
under the provisions of POTA 2002.
Lastly the evidence of chief investigating officer ACP Shri Suresh Walishetty is recorded as PW-103.
58.
PW-1 Sachin Kadam was working as PSI in Unit
No.II of the Crime Branch who was one of the members
of the trap party to apprehend terrorist Nasir who was killed in the encounter on 12.9.2003 near
Ruparel College, Matunga, Mumbai.
Jahid Yusuf Patne
was earlier prosecuted as accused No.4 and after granting him pardon under section 307 of Cr.P.C., he has been examined as approver as PW-2.
59.
PW-14 Police Constable Camillo is examined to
prove the FIR lodged by him at Colaba Police Station in connection of with on the bomb blast and occurred the same at was
Gateway
India
25.8.2003
recorded by PW-92 ACP Vinodkumar Sharma.
60.
PW-15 Shivnarayan Pandey is a taxi driver and
owner of the taxi bearing No. MH-02 R 2007 in which accused No.1, 3 and their daughters travelled from their house at Andheri towards Southern Mumbai on 24.8.2003 and 25.8.2003 and they had planted
explosive material in the same taxi and directed the taxi driver to park the vehicle in Pay and Park
area
in
front of
Hotel Taj
at
the
time
of
the
explosion of the timer bomb. had issued parking receipt
PW-16 Kartik Pradhan to PW-15 Shivnarayan
Pandey pertaining to the parking of his vehicle at Pay & Park in front of Hotel Taj at Gateway of
India, Mumbai on 24.8.03 and 25.8.03. PW-17 Mukhtyar Abdul Majeed Shaikh is the panch witness of the spot panchanama in CR No.86 of 2003. PW-18 Special
Executive Magistrate Shri Madhukar Bodke held TIP of accused No.1 Hanif and accused No.2 Ashrat in Mumbai Central Prison on 6.10.2003 and Nafiz Ahmed Khan, Shivnarayan Pandey and Ramchandra Gupta are
examined as PW-19, PW-15 and PW-20 who identified the above accused persons. TIP of the accused no.2
Ashrat was held in MCP on 9.10.2003 and witnesses Dilip Yagnik, Harish and Popat, Kutty Shivbabu Shetty Mishra, been
Kunjbihari
Pandey
have
examined on the point of identification of the above accused. PW-52 Waman Sapre is examined as Special Executive Officer who held TIP of accused Nos. 1 to
in
Mumbai
Central
Prison
on
1.10.2003
in
connection with Ghatkopar BEST Bus bomb blast and Anil Vishwakarma (PW-46) and Dilip Wankhede (PW-54) were the witnesses in the above parade.
61.
Panchanama of scene of offence in connection
with Ghatkopar BEST Bus blast was prepared by PW-47 PI Ramesh Patil. Bus passenger Vilas Vishnu
Mahindrakar succumbed to the injuries in the above blast dtd. 28.7.2003 and his brother-in-law Sambhaji Sadashiv (PW-48) performed last rites on the dead body of deceased Vilas. injuries in the above One Kalpesh Gala blast whose suffered is
evidence
recorded as PW-49.
62.
PI
of
Crime
Branch,
Social
Service
Shri
Rajaram Joshi has drawn the spot panchanama in CR No.86 of 2003 whose evidence is recorded as PW-26. PW-27 Lalasahab Singh has lodged FIR Police Station pertaining to the to L.T.Marg bomb blast
occurred recorded
in by
Zaveri PW-42
Bazar PSI
on
25.8.2003
which
was Soon
Suryakant
Naikwadi.
before the bomb blast in Zaveri Bazar, accused No.2 Ashrat made communication with wanted accused Nasir through phone in PCO and PW-28 Dilip Yagnik who was working in the to said have PCO over is examined heard the by the above
prosecution
communication. Culprits had planted explosives in a motor taxi bearing No.MH-02 R 2022 in Zaveri Bazar and the taxi was blown at noon time on 25.8.2003 killing several persons. Panchanama of the above taxi Chavan. was prepared in presence of PW-35 Yogesh
Umeshchandra Upadhyay was the driver of the
said taxi who succumbed to the injuries on the spot and his dead body was identified by his father PW-32 Indramani Upadhyay and another taxi driver viz.
PW-31 Pyareshyam Tiwari.
63.
In all 177 Photographs of injured and deceased
persons were taken by photographer Shankar Sawant
who is examined as PW-40. complainant presence of in CR PW-39 No.91 Jaya
Blood stained clothes of of 2003 were and seized the in
Shetty
spot
panchanama in above CR was prepared by PW-43 PI Gopinath Chavan. Part of the investigation in CR
No. 91 of 2003 was conducted by ACP of Pydhonie Division Shri Shyamrao Jedhe whose testimony is
recorded as PW-44.
Gas cylinder kept in motor taxi
in MH-02 R 2022 was blown in the explosion and its pieces were found lying on the terrace of the nearby buildings which were seized by PW-45 API Bajrang Parab.
64. BEST
FIR in DCB CID CR No.157 of 2002 was lodged by bus conductor PW-55 Shri Sanjay Patil on
2.12.2002 and it was recorded by PW-63 PI Tanaji Jadhav. Live bomb was found kept in BEST bus bearing No.MH-01 H 8527 and on that point evidence of
Assistant Security Officer of BEST D'souza is recorded as PW-56.
Shri Michael
Same time bomb was
defused by PSI Shri Girish Gode (PW-58) of BDDS
Squad.
Residues of defused bomb were seized under
panchanama in presence of PW-57 Ramsurat Shukla.
65.
Accused
persons
also
led
defence
evidence.
Accused No.1 Sayyed Mohd.Hanif examined himself on oath as DW-4 and also examined two witnesses i.e
Ex-Commissioner of Police, Mumbai, Shri Ranjitsingh Sharma (DW-5) and Ex-Home Minister of the State Shri Chagan Bhujbal (DW-6). Accused No.5 Mohd.Hasan @ Hasan Batterywala is examined as DW-1 and in support of his evidence he has examined his son Shaikh Mohd. Ismail as DW-2. Accused No.5 Mohd. Hasan Batterywala has also examined ACP Sadashiv Patil as DW-3 to point out that statement of PW-8 Ajmeri Mohd. Ali Shaikh was recorded by him in connection with bomb blast incident in Mumbai dtd. 11.7.2006. Defence has also relied upon as many as 124 exhibits.
66.
Apart from the oral evidence referred above has also placed reliance upon 624
prosecution
documents which have been referred herein above and also produced 140 articles of muddemal property.
67.
I have heard Spl.P.P. Mr.Ujjwal Nikam for the
prosecution. Adv. Wahab Khan is heard on behalf of accused argument no.1 for is Hanif accused heard and Adv.Kunjuraman Ashrat. accused advanced of
no.2 for
Argument No.3
Adv.Pasbola
Fehmida.
Defence counsels for accused Nos. 1 to 3 have also submitted memorandum of arguments.
68.
After having gone through the charge framed
against the accused persons and after hearing the arguments advanced on behalf of the prosecution and on behalf of the defence, following points arise for my determination and I have recorded my findings thereon as per the reasons given below :
POINTS
FINDINGS
1.
Does
prosecution nos.1
prove: to 3,
Accd.No.1 Hanif, PW2 Jahid,deceased and wanted Nasir accused hatched conspiracy at Dubai of in
that PW-2
accused Jahid
(original
accused no.4 who turned to be approver) and Nasir accused month Dubai of alongwith persons deceased wanted in the at or
persons criminal partly the
month
August
August-2002 to do
2002 in the house of Nasir at Dubai and
agreed
caused to be done an illegal act to wit; acts of doing by at
after returning back Accd. No.1 and Nasir to India, they along with Accd.No.2 and 3 held several consp-
terrorist exploding
i.e.
bombs
prominent crowded places in

Mumbai in such a manner so
iracy meetings in the house at of Accd. No.1 for detail bomb
as to cause death of several persons and to cause damage to public and with a private view to
Mumbai out
chalking plan for
properties
doing at in
strike terror in the minds of the people and thereby have
blasts places Thus
crowded Mumbai. of
accused committed
persons an
conspiracy
offence
doing terrorist acts in Mumbai was
punishable
under
section
hatched partly in Dubai and partly in Mumbai.
120-B of IPC?
2.Whether previous sanction
of the Central Govt u/s 188 of Cr.P.C. is necessary for: In the negative. trial of the accused
persons of the offence u/s 120-B of IPC ?
3.
Does
prosecution no.2
prove Ashrat
:
that was
accused found in of
unauthorized hazardous
possession
In the affirmative.
explosive substances in his house at 22.40 hrs. on
31.8.2003 ?
4.
Does
it nos.1 in
prove and 3
that were
accused found
unauthorized of hazardous in
possession explosive
substances
their house R.No.D-7 Salim: Chawl, Chimat Pada on 1.9.2003 at 2.35 hrs.? prove 7.50
In the affirmative.
5.
Does on
it
further at
that
1.9.2003
hrs accused no.1 Hanif was found in of unauthorised: hazardous in a In the affirmative.
possession explosive room bearing
substances by
occupied R.No.14
him Salim
Chawl, Chimat Pada ?
6.
Does
prosecution
prove
that and
accused Nos.1 to 3, deceased of Nasir the in
pursuance
above
criminal conspiracy,planted timer bomb seat in BEST No.312 No.MH-01 Seepz BEST below Bus the rear of route bearing near
In the affirmative.
(336) H-8765
Bus Depot, MIDC, Andheri(E) in the evening of 2.12.2002 with intent to kill maximum number of persons trave-
lling in the above bus and to cause loss to the public and private properties ?
7. that and
Does
prosecution prove Nos.1 Nasir the to 3 in above In the affirmative.
accused deceased of
pursuance criminal
conspiracy,planted:
a timer bomb in a BEST bus of route No. 340 bearing
No. MH-01 H 8246 which was exploded at about 21.10
hrs. on 28.7.2003 at Karani Lane Junction,Ghatkopar(W),
Mumbai causing the death of two 60 persons and injury also
to
passengers
and
causing
damage
to
public:
and private property worth Rs.16.30 lacs ? 8. Does prosecution further prove that accused nos.1 to 3, and deceased of Nasir in
pursuance criminal
the
above In the affirmative.
conspiracy,planted:
timer bomb in a motor taxi bearing No.MH02-R2022 which was kept waiting at the
junction of Dhanji Street, Yusuf Ali Road, in front of Sagar Juice Centre, Near
Mumbadevi Temple, Mumbai on 25.8.2003 at noon time and the powerful bomb kept in the above taxi was exploded at 12.40 of to hrs. 36 138 causing persons persons damage the and and to
death injury also
caused
public properties lacs?
and worth
private Rs.95
9. Whether it is proved by the accused prosecution Nos.1 to 3 that and
deceased Nasir in pursuance of above criminal timer conspibomb in: In the affirmative.
racy,
kept
airbag and airbag was kept in the dickey of motor taxi bearing No.MH02-R2007 which was parked in pay & Park
site opposite Hotel Taj at Gateway of India, P. J.
Ramchandani Marg, Colaba, Mumbai-400 005 on 25.8.2003 and the said at 16 bomb was hours and 46 huge and
exploded killing causing persons damage
13.05 persons
injuries and to
to
causing public
private properties ?
10.
Whether
the
sanction 4.2.2004 of: the valid Yes.
Ex-P-573 accorded
dated by
Government
Maharashtra u/s 50 of POTA 2002 accused to prosecute is
persons
and legal ? What offences if any,: Accused Nos.1 to 3 Nos.1 to 3 have are held guilty of the offences u/s. 120-B, 120-B r/w. Sec.302 of IPC, 120-B r/w. Sec.307 of IPC, 120-B r/w. Sec. 427 of IPC, 120-B of IPC r/w. Sec. 3(2)(a) of POTA 2002, u/s. 3(3) and u/s. 4(b) of POTA 2002, u/s. 5 r/w. Section 9-B of Explosives Act 1884, u/s. 3 and 4 of
11.
accused
committed ?
Explosive Substances
Act 1908, u/s. 3 and 4 of Prevention to of
Damage
Public
Property Act, 1984.

:
12. What order ?
As per final order.
R E A S O N S
69. Since all the above points are closely
connected to each other therefore, it is better to discuss them jointly. Following are the undisputed facts. i) A timer bomb was found in BEST Bus of
route no.336 on 2.12.2002 at SEEPZ BEST Depot. ii) BEST Bus of There was explosion of timer bomb in route no.340 at LBS Road junction,
Ghatkopar (West), Mumbai, as a result of which two

passengers were killed and 60 persons became injured
and public and private property was damaged. iii) Third and fourth bomb blast took
place on one and the same day i.e. on 25.8.2003 at Zaveri Bazar near Mumbadevi Temple and Gateway of India opposite Hotel Taj at noon time. iv) no.MH-02 Timer bomb kept in motor taxi bearing at Zaveri Bazar was exploded on
R-2002
25.08.2003 at 12.40 hours resulting into the death of 36 persons and 138 persons became injured and huge private and public shops property and was damaged houses
including etc. v)
vehicles,
residential
Timer
bomb
planted
in
motor
taxi
bearing no.MH-02 R-2007 parked on the site of Pay & Park, near Gateway of India was exploded on
25.08.2003 at 13.05 hours resulting into the death of 16 persons parked and in 46 the persons said became area injured. also
Vehicles
were
extensively damaged.
EVIDENCE PERTAINING TO THE SCENE OF OFFENCE
70. witness
PW-57 Ramsurat Mataprasad Shukla is a panch of the recovery panchanama (Ex.P-410)
pertaining to the articles which came to be seized at SEEPZ Bus Terminal, Central Road, MIDC, Andheri, Mumbai. According to this witness following articles were seized from the scene of offence. (1) (2) (3) (4) (5) (6) (7) One piece of detonator (Art-30) Gelatine stick (Art-31) Battery @ two wires (Art-32) Green colour polythene bag(Art-33-C) Yellow colour plastic bag (Art-34) White colour polythene bag (Art-35) Electronic switch @ attached two wires (Art-36) (8) (9) (10) (11) (12) (13) (14) Green colour chunni (Art-37) Multi colour cloth (Art-38) Broken cardboard shoes box (Art-39) Piece of white cloth (Art-40) Piece of blue colour cloth (Art-41) Black colour washer (Art-42) Grey colour bag (Art-43)
(15) 71
Piece of string (Sutli) (Art-44)
PW-57 has identified the above articles in The evidence of P.W.57 to
Court when shown to him.
the above effect remained unchallenged by accused no.2 and 3. It is suggested to this witness on behalf of accused no.1 that the seizure panchanama (Ex.P.410) of above articles was already prepared
by police and later on his signature was obtained on the same. This suggestion is denied by the witness.
Accused no.1 has claimed ignorance when the question to the above effect (Que. No.952) was put to him by the Court in his examination u/s. 313 of Cr.P.C.
72.
PW-55 Sanjay Patil has lodged FIR to MIDC
Police Station in connection with planting of timer bomb in BEST bus of route no.336 at SEEPZ Bus Depot. He has testified to the effect that Bomb Disposal Squad from Delhi visited the scene of offence and the bomb was defused by them. sticks, detonator, battery He saw 14 gelatine battery pieces,
cell,
string and cloth on the scene of offence.
All the
three accused persons have declined to cross examine the above witness. P.W.55 pertaining to The unchallenged testimony of the findings of the above
articles on the spot corroborate to the testimony of P.W.57. It is therefore proved that the above 15
articles were found on the spot and those were later on seized by IO in the presence of P.W.57 in
connection with DCB CID CR No.157 of 2002.
73.
PW-47 PI Ramesh Patil of Ghatkopar Police
Station deposed that he received message at 21.10 hrs on 28.7.2003 that there was explosion of bomb in BEST bus of route no.340. Immediately thereafter he alongwith duty officer PSI Jadhav rushed to the spot with two panchas. Rear portion of BEST bus was found completely scattered damaged. and blood Pieces stains were of glasses on were them.
fallen
Detail panchanama to that effect was prepared by him vide Ex.P.-380. Contents of spot panchanama
(reference of which is made in para 7) has been narrated by this witness in detail. It is revealed
from his evidence that one of the panch witnesses of Ex.P-380 i.e Jagdish is no more living and another panch Shri Virendra Singh is not traceable.
Counsels of accused nos.1&2 have declined to crossexamine the above witness. In the cross-examination of Adv.Pasbola, it is stated by PW-47 that he made
inquiry regarding the incident with the passengers of the bus. He himself took both the panchas on the spot who were residing in adjacent area. Evidence of PW-47 has not been challenged by accused no.3.
74. reports
Ex.P-591, of
Ex.P-592
and
Ex.P-606 Laboratory,
are
the
Forensic
Science
Mumbai,
pertaining to the analysis of the articles seized from the of scene the of offence is in that C.R.No.91/2003. Nitrocellulose,
Results
analysis
Nitroglycerine, Ammonium Nitrate and constituents of gelatine were detected on the seized articles. It
is therefore confirmed that the explosives were used in the said blast.
75. the
PW-27 powerful
Lalasahebsingh bomb blast
lodged
FIR in
regarding motor taxi
occurred
bearing no. MH-02-R-2022 at the junction of Dhanji Street on Yusufali Road, near Mumbadevi Temple at noon time on 25.8.2003. According to him at the time of the incident he was proceeding towards Gulalwadi in another taxi and when his taxi was turning near Sagar Juice Centre, one taxi came from front side. He allowed that taxi to pass and when it went little ahead, there was explosion in the said taxi. The
explosion was so loud as he felt that his both the ears became deaf. When he got down from the taxi, he heard shouts as Bachav-Bachav . He saw many persons
suffering cut injuries on their persons and dead bodies were found lying around the taxi. F.I.R. of the above incident was lodged by him at about 12.45 hrs. It is testified by PW-27 Lalasaheb that while
preparing
the
panchanama
of
scene
of
offence,
officers of Forensic Science Laboratory were called on the spot who took samples of blood mixed soil and metal pieces. Accused Nos.1 to 3 have declined to
cross-examine this witness.
76.
PW-43 of
PI
Gopinath of
Chavan offence
deposed (Ex.P-353)
that was
panchanama
scene
prepared by him. It is his evidence that 11 articles were seized from the spot consisting number plate of damaged taxi, blood mixed soil and blood stained metal pieces. PW-45 API Bajrang Parab spoke that pieces of gas cylinders were found scattered in
Bhuleshwar area and those were seized by him vide panchanama Ex.P-376. It is revealed from the
evidence of PW-43 Gopinath Chavan that the injured persons were taken by him to J.J.Hospital and
statements of 19 injured persons were recorded by him. Offences under POTA 2002 was added on
26.8.2003 to CR 201/2003 lodged at L.T.Marg Police
Station
and
further
investigation
was
thereafter
handed over to ACP Shri Shyamrao Jedhe (PW 44).
77. 44)
It is stated by ACP Shri Shyamrao Jedhe (PW that statement of complainant Lalasaheb and
other witnesses were recorded by him.
36 persons
were killed in the above incident and 138 became injured. 77 adjoining shops were damaged and 35
vehicles on the site were burnt. Splinters
removed
from the body of the injured persons were sent to Forensic Science Laboratory.
78. C.A.
Ex.P-372(colly) and Ex.P-373(colly) are the reports pertaining to the analysis of the
articles seized from the scene of offence.
Results
of the analysis showed that RDX Cyclotrimetnylene trinitramine along with petroleum Hydrocarbon oil was detected on the seized articles. It is also
reported by the Assistant Chemical Analyzer that the broken CNG cylinder found at the site indicate added
effect of CNG gas in the blast.
After examining
seized splinters, it is reported by CA that Nitrate (Post explosion residue) iron was and detected manganese thereon. as major
Splinters elements.
contained
After having observed remnants of damaged
motor taxi bearing No.MH-02 R-2022 and site of the blast it was opined by C.A. that the blast has taken place in dickey of the taxi and it was further confirmed by the detection of RDX.
79. Gateway
FIR pertaining to the bomb blast occurred at of India was lodged by police constable
Camilo Reis (PW-14) and the panchanama of the scene of offence (Ex.P.318) was prepared by ACP Shri
Vinodkumar Sharma (PW-92). According to PW-92 ACP Shri Vinodkumar Sharma he was kept in-charge of
Colaba division on 25.8.2003 and he received message on above day at 1.10 p.m. that there was bomb blast at Gateway of India. He immediately rushed to the spot. After examining the scene of offence it was
noticed by him that a crater was developed having dimension of 3.5' to 4' and 1' to 1.5' depth near
parapet wall of the sea.
The officers from the
office of FSL were called on spot who collected samples of metal pieces, blood stained soil and
stone from the
scene of
offence.
Ex.P-540 (colly)
and Ex.P-545 are the reports of FSL pertaining to the examination of the articles which came to be seized from scene of offence in DCB CID CR No.86 of 2003 and it is opined that RDX (Cyclotrimethylene trinitramine) alongwith petroleum was found on the seized articles i.e. metal pieces, rubber pieces, metallic wires, debris, cloth pieces and polythene bags. After having examined the site of the bomb
blast it is opined that high explosive, detonated by detonator might have been used in the blast. broken CNG cylinder found at the site The
indicates
added effect of CNG gas in the blast. The residue and remnants collected at the site showed the
presence of RDX along with petroleum hydrocarbon oil
as tested by chemical and instrumental methods.
80
It
is
not
disputed
that
54
persons
were The
killed in the three bomb blasts referred above. names of the deceased persons and the
Exhibit
numbers of Cause of Death Certificates is mentioned here-in-above (Para-53). 244 persons also suffered
injuries in the above incident of blasts. The names of the injured persons and the Exhibit numbers of their Injury Certificates are mentioned in para-54. Post-mortem Report and Cause of Death Certificates of deceased persons show that the deceased were died due to haemorrhage and shock due to multiple It
injuries with burn injuries in the bomb blasts.
is seen from the Injury Certificates that some of the injured persons were required to take medical treatment as outdoor patient and were discharged on the same day and some of the injured persons were
required to take treatment as indoor patient ranging from 2 to 7 days. Some of the injured suffered 100%
temporary disability. underwent surgery
Most of the injured persons in St. George Hospital,
J.J.Hospital and other private hospitals.
81 to
P.W.23, P.W.25, P.W.87 are on the the
P.W.35, witnesses point
P.W.36, and P.W.64 examined their by the
prosecution
that
nearest
relatives lost their lives in the twin bomb blast dated 25/08/2003. are the witnesses P.W.21, P.W.24, P.W.36, 37 & 38 who deposed about injuries on
their persons in the above bomb blasts.
Arrest of Accused Nos.1 to 3.
82
PSI
Jitendra
Vankoti
(PW-97)
and
PSI
Suryakant Talekar (PW-98) were attached to DCB CID Unit No.XI in the year 2003. It is stated by PW-97
Vankoti that accused no.2 was apprehended by the officers of unit No.XI at Juned Nagar, Juhu Galli at about 4.00 p.m. on 31.8.2003 and thereafter he was
taken in the office of unit No.XI at Kandivali. After having made preliminary inquiry with him it was revealed that he was involved in the BEST bus bomb blast at Ghatkopar (DCB CID CR No.75 of 2003) and therefore he was arrested in connection with the above offence at about 20.20 hrs. on the above day and arrest memo Ex.P-385 was prepared. It is the
evidence of PSI Shri Pramod Toradmal (PW-51) and panch witness Mukund of Ingrulkar no.2 (PW-50) that in the the
personal
search
accused
resulted
seizure of 12 articles (Art. 12A to 12L) consisting visiting card of Noor Electricals (Art.12H) owned by Shri S.M.Hanif (A-1) and A.B.Shaikh. On the overleaf of the above visiting card two mobile numbers of Nasir i.e 9892077831 & 9892451164 are found
mentioned.
The land-line number of accused no.1
Hanif i.e 28527761 is also found mentioned on the overleaf of the visiting card. In one chit i.e Art.
12/G the e-mail address of co-accused Jahid Patne is found mentioned. PW-50 Mukund Ingrulkar has
identified accused no.2 in the court saying that it is the same accused from whose personal search the above articles i.e Art 12/A to 12/L were seized by the police under panchanama Ex.P-385. There is
endorsement of accused no.2 panchanama
at the bottom of the
pertaining to have received the copy of below the
the same and he has made his signature above endorsement.
83
PW-53 Sunil Bhaita is the panch witness in
whose presence accused no.2 Ashrat expressed his willingness to police officers of Kandivali Unit to point out the place where he had concealed the
remaining bomb material. the disclosure statement
According to this witness of accused no.2 to the
above effect was recorded by PSI Vankoti which is placed on record at Ex.P-393. Perusal of the above
disclosure statement shows that it was reduced to writing at about 21.05 hrs on 31.8.2003. This
witness further spoke that accused no.2 Ashrat led
police and panchas in a Gypsy vehicle towards his house situated at Juned Nagar, Juhu Galli, Andheri (West), Mumbai. After crossing the distance of 50
meters from a lane there was a chawl and accused no. 2 led them towards first floor of the chawl where his mother Kamrunissa opened the door. Accused
no.2 took out one tin box below the cot of his bedroom and after opening the said tin box it was found contained 30 gelatine sticks (Art-13), 3 alarm
clocks (Art.14 colly) and 8 detonators. Sample of each of the above articles was taken and the
articles were separately packed in plastic paper and labels were affixed on them and those were seized under panchanama Ex.P-393/A which bears the
signature PSI Vankoti, panchas and Ashrat
accused no.2
The above seizure memo shows that it was
concluded at 22.40 hrs on 31.8.2003. The witness has identified the above articles when shown to him
while recording his evidence.
84
PW-53
Sunil
Bhatia
testified
that
in
his
presence accused no.2 Ashrat disclosed the police officers to point out the place where the bombs were prepared. Evidence on the same line is given by PSI
Suryakant Talekar (PW-98). Disclosure statement to the above effect was prepared by PSI Talekar which bears his signature, signature of both the panch witnesses and signature of accused no.2 which is at Ex.P-394. It is seen from Exh.394 that it was
concluded at 23.50 hrs on 31.8.2003.
85
Both
the
above
witnesses
stated
that
the
police called Gypsy vehicle and accused no.2 Ashrat thereafter led panchas and police towards AndheriKurla Road, Marol Naka and thereafter accused no.2 directed to take the police vehicle towards Chimat Pada. As per his direction the vehicle was halted
near Ashiyana Bungalow where accused no.2, panchas and police alighted from the vehicle and started proceeding towards Salim Chawl situated in Chimat
Pada near Maheshwari Hotel. panchas and police towards
Accused no.2 Ashrat led room no.D-7 at Salim
Chawl and the door of the room was opened by accused no.1 Hanif himself. Accused no.3 Fehmida and her
two daughters Farheen (15) and Sakira (5) were also found present in the room. Fehmida knowing was his wife. nos.1 Accused Hanif told that no.2 PW-98 was PSI already Talekar
Accused and 3.
accused
thereafter took search of the house of accused nos.1 and 3. Search of the cupboard resulted in the
seizure of nine documents consisting passport of accused no.1 Hanif and his family members, identity and visiting cards. One of the visiting cards
mentioned the name of Nasir and his mobile number as 9892451164. The other visiting cards were pertaining to Noor Electricals which was owned by accused no.1 Hanif and the mobile number of Nasir was found
mentioned as 9892077831 on the overleaf of the same card.
86
Evidences
of
panch
witnesses
PW-53
Sunil
Bhatia and PSI Suryakant Talekar (PW-98) revealed that accused no.2 Ashrat pointed out the loft in the house of accused no.1. One water tank was found on the loft and besides that tank there was one gunny bag. On opening the gunny bag it was found contained 125 alluminium clips, clipper machine of Super Eagle Co., one bundle of white polyester filament yarn role, one tightening machine, one soldering machine to which plug and wire were attached, role of
soldering wire, 9 alarm clocks and 16 fire crackers of red colour. The above articles were kept in a small cardboard and labels were affixed thereon. One another carton box was found on the loft and on opening the same 12 detonators were found packed therein. One of the detonators was taken out as
sample and 11 detonators were wrapped in cotton and those were kept in a small carton box. above articles were seized under All the panchanama
Ex.P-394/A which bears signature of PSI Talekar,
panchas and the signatures of accused nos.1 and 2 and it was concluded at 2.35 hrs. on 1.9.2003. The above seized articles are marked as Art.16 colly. to Art.29. PW-53 has identified all the above articles which came to be seized from the house of accused no.l. All the above muddemal articles are duly
packed, labeled and sealed.
87 (PW-99) deposed
PSI Talekar (PW-98), PSI Vijay Kandalgaonkar and that panch witness no.1 Sunil Bhatia (PW-53) his
accused
Hanif
showed
willingness to point out the place where he had concealed some gelatine sticks. Accused no.1
thereafter led the panchas and police towards room no.14, Salim Chawl, which was locked. Accused no.1
opened the room and took out a yellow colour gunny bag which was kept below the cot and it was found contained 58 gelatine sticks on which NECL Hingani Wardha were printed. Nobel- gel 80 One of the
sticks was taken as sample and others were seized
under panchanama Ex.P-395/A which was concluded at 7.50 hrs on 1.9.2003 and it bears signature of PSI Kandalgaonkar, panchas and accused no.1 Hanif.
88
Advocate
Shri
Kunjuraman
appearing
for
accused no.2 has submitted that arrest panchanama of accused no.2 Ex.P-385 It is is totally the that fabricated of and PSI was
concocted Jitendra
document. Vankoti
evidence accused
(PW-97)
no.2
brought from Juned Nagar, Juhu Galli to the office of crime branch at 4.00 p.m on 31.8.2003 and he was
thereafter interrogated. He was arrested at 8.20 p.m on the above day. examination that no It is stated by him in crosspanchanama of any kind was
prepared when accused no.2 was picked up from Juned Nagar. Adv.Kunjuraman has invited attention to the
evidence given by Chief IO Shri Walishetty (PW-103) that the accused no.2 was arrested at Andheri
whereas it is the evidence of police officers PSI Vankoti (PW-97) and PSI Talekar (PW98) that the
accused no.2 was arrested inside the Kandivali Crime Branch Unit. It is thus submitted that there is confusion regarding the arrest of accused no.2.
89
Advocate Kunjuraman has invited attention of
the Court towards news item published in Times of India on 2.9.2003 (Ex.D-76) to the effect that
accused no.2 was arrested on Saturday morning and he was interrogated in the evening. India Today
Magazine (Ex.D-77) reported that on the afternoon of August 30, police officer Shri Maria and his team arrested accused no.2 Ashrat in Juhu. It is pointed
out by Advocate Kunjuraman that Ex.D-77 mentions the date of arrest of accused no.2 as 30th August and the arrest panchanama Ex.P-385 shows the date of arrest as 31.8.2003.
90
Special PP Mr.Nikam has submitted that there
is no discrepancy regarding arrest of accused no.2. According to him the news items relied by the
defence pertaining to the arrest of the accused no.2 cannot be considered as it is hearsay in nature. In
support of the above submission Special PP Mr.Nikam has placed reliance upon the judgment of the Apex Court in a case of Laxmi Raj Shetty Versus State of Tamil Nadu, AIR 1988 SC 1274. It is held by Their
Lordships of the Hon'ble Apex Court in the above matter in para 25 as under: we cannot take judicial notice of the
facts nature
stated in a news item being in the of hearsay secondary evidence,
unless proved by evidence aliunde. A report in newspaper is only hearsay evidence. A
news paper is not one of the documents referred to in S.78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness
attached under section 81 of the Evidence Act to a newspaper report cannot be treated as proof of the facts reported therein.
91
PW-97 PSI Vankoti has stated in his cross-
examination that accused no.2 was brought from Juned
Nagar, Juhu Galli at 4.00 p.m. on 31.8.2003 and for the purpose of interrogation he was taken to the office of Unit-XI of Kandivali. After interrogation he was arrested at 8.20 p.m. It is not disputed that house of accused no.2 Ashrat is situated at the residential address Juned Nagar, C.D.Barfiwala Road, Andheri(West), accused no.2 Mumbai-58. was Thus by it is seen that of
apprehended
the
officers
Unit-XI near the house of accused no.2 and for the purpose of interrogation he was taken in the office of Unit-XI. After interrogation and after
confirming that he was involved in the offences of bomb blasts, he was arrested at 8.20 p.m. Thereafter his personal search was conducted and the articles found in his possession were taken in possession under panchanama Ex-P-385. It is suggested in the
cross-examination of PW-98 PSI Talekar that the then Commissioner of Police and the then Home Minister held press conference on 1.9.2003 and in that press conference it was reported to the media that accused
no.2 Ashrat was arrested on 30.8.2003 and accused nos.1 and 3 were arrested on 31.8.2003 at early hours of morning. Talekar. This suggestion is denied by PSI
92
So far as the arrest of accused nos.1 and 3
is concerned, it is submitted by their Counsels Adv. Wahab Khan and case Adv. that Pasbola accused that nos.1 it and is 3 the were
prosecution
arrested on 1.9.2003, but there was no reason for the then Commissioner of Police Shri R.S.Sharma and the then Dy.Chief Minister Shri Chagan Bhujbal to give a press briefing to the media about the date of arrest of accused nos.1 and 3 on 31.8.2003. said media reporting is brought on record The
by the
defence. Ex-D-76 is the news item published in Times of India on 2.9.2003 in the caption of police I have
confirmed active role of woman in blast .
gone through the news item which is silent about the date of arrest of accused nos.1 and 3.
93
Accused No.1 Hanif in his defence evidence
(DW-4 Ex-102) has stated that he returned home at 7.00 p.m on 30.9.2003. When he alognwith his family members was about to take dinner at that time 20 to 25 policemen entered in his house at 8.00 p.m. and they expressed willingness to take house search. After taking house search the police personnel took passport, bank passbook and other documents
alongwith one album of photographs and except this nothing was seized. Accused no.1 himself and his family members were taken to crime branch office at Andheri. It is further stated by accused no.1 that
he was taken in Bhabha hospital on 1.9.2003 as his blood pressure was raised and after giving discharge from the hospital he was produced before the special court and he was remanded to police custody for 14 days. The above evidence of accused no.1 shows that
he and his family members were apprehended by police at about 8.00 p.m. in his house on 30.9.2003. When
he was admitted in Bhabha Hospital on 1.9.2003 of his ailment of blood pressure, it means that accused no.1 wanted to state that he himself and his family members were apprehended by police at 8.00 p.m on 30.8.2003 and not on 30.9.2003. In the cross-
examination it is stated by accused no.1 Hanif that he was not aware of the date of his arrest when he was produced before the POTA Court on 2.9.2003. He
has denied the suggestion of the Special P.P. that he was arrested by police on 1.9.2003.
94
DW-5
Shri
R.S.Sharma
was
serving
as
the
Commissioner of Police of Mumbai during the period from 31.12.2002 till 14.11.2003. He deposed at
Ex.D-106 that he had occasion to release the press note on 1.9.2003 and the press conference was
attended by he himself and Home Minister Shri Chagan Bhujbal and Jt.C.P.(Crime). Press note was
circulated in that conference and the queries raised in the press conference were replied by DW-5 Shri
R.S.
Sharma.
Ex.D-76
is
news
paper
report
pertaining to the above press note.
After having
gone through the news item Ex.D-76 it is stated by

this witness that he is unable to say whether the
contents of the news item depicts the correct events.
95
It has come in the evidence of DW-5 Shri
R.S.Sharma that press note dtd. 1.9.2003 Ex.D-107 is signed by IO Shri Walishetty. After having gone
through Ex.D-107 it is stated by DW-5 that he is unable to state the exact date on which accused nos. 1 and 3 were arrested. The date of arrest of
accused no.2 is also not mentioned in the above press note.
96
In the cross-examination taken by Spl.P.P.
Mr.Nikam it is stated by DW-5 Shri R.S.Sharma that it was confirmed by him from the documents that one of the accused persons was arrested on 31.8.2003 and rest of the accused persons were arrested on the
next day. DW-6 the then Home Minister Shri Chagan Bhujbal has also stated that it was stated in the press conference that four accused persons were
arrested in bomb blast cases, out of which one was arrested on earlier day evening and remaining three were arrested on the same day early in the morning i.e on 1.9.2003. Thus neither news items Ex.D-76 and Ex.D-107 nor the evidence of DW-5 R.S.Sharma and DW-6 Shri Chhagan Bhujbal support the defence of accused nos.1 and 3 that they were arrested on
31.8.2003.
97 the
Advocate Kunjuraman has invited attention of court of to the complaint no.2 filed by the elder
brother
accused
Ashrat
viz.
Mohd.Anjum
Ansari against police officers viz. Shri Walishetty, Shri Savde, Shri Kandalgaonkar, Shri Vankpoti, Shri Talekar, Shri Toradmal, Shri Waghmare and
Constables having buckle no.1842, 6474 and 2369 and against the panch witnesses. Complaint was
registered as M.A. No.46 of 2004 on 31.3.2004 for initiating criminal proceedings against the above respondents under section 120-B r/w sec.194, 195, 196, 197, 198, 199 and 200 of IPC r/w sections 5 and 9 of Explosives Act, 1884, r/w sec. 5 of Explosive Substances Act, r/w 4 and 58 of POTA, 2002 and to pay compensation of Rs.5 lacs to the complainant and his family members by respondent nos.2 to 15 for causing mental agony, grave suffering, defamation and loss of reputation faced by complainant and his family members due to fabrication of the recovery memos prepared by them.
98
Complainant Mohd. Anjum Ansari was examined
on oath as CW-1 and in addition to his evidence he examined six more witnesses. Complainant Mohd. Anjum deposed brother. that accused no.2 Ashart is his younger
According to him, disclosure and seizure
panchanama pertaining to seizure of the explosives from the house of accused no.2 is false. This
witness has not stated that police did not come to the house of accused no.2 Ashrat on 31.8.2003 and he was not arrested on that day and nothing was
recovered from his house at his instance.
99
CW-2
Kamrunnisa
is
the
mother
and
CW-3 They
Shafique is the father of accused no.2 Ashrat.
both have stated that accused Ashrat was last seen by them in the house on 30.8.2003 and according to Kamrunnisa she lodged complaint on 31.8.2003 to the effect that Ashrat had left on Sunday and since then he did not come back. According to CW-3 Shafique,
police had come to his house on 2.9.2003 at about 2.00 p.m and he was ill-treated by the police.
According to this witness, missing complaint was lodged to D.N.Nagar police station regarding missing of Ashrat. CW-3 has stated in cross-examination that he made no complaint to the superior police officer or to the court regarding the ill-treatment meted out to him by police. He has admitted that he has
no evidence about the ill-treatment given to him by police on 2.9.2003.
100 seen
CW-4 Farhad has stated that Ashrat was last by him on 30.8.2003 and it was Saturday. He
Police did not come to his house at any time.
again said that he had been to the house for lunch and on that day police had come to his house. making above statement appearing by for CW-4 the in While court
Adv.Kunjuraman
complainant
reminded the witness to state the facts before the court which have been stated by other witnesses. CW-4 further spoke in the cross-examination that
after watching T.V.news he came to know that his brother Ashrat was arrested in bomb blast incident.
101
CW-5
Rajib
Shafique
is
the
brother
of
accused no.2 not come to
Ashrat. his
According to him, police had during the period from
house
30.8.2003 to 2.9.2003.
102
CW-6 Tabassum is the elder sister of accused
no.2. She deposed that Ashrat was last seen by her on 30.8.2003 and it was Saturday, thereafter Ashrat did not come to the house and police approached the house only on 2.9.2003. She has denied the
suggestion of Spl.P.P. that police had been to her house on 31.8.2003 and at the instance of accused no.2 Ashrat, the incriminating articles i.e gelatine sticks and detonators were seized from the house. CW-1 Mohd. Anjum has stated in his cross-examination that he has filed the complaint against the police officer advocate. as per the instructions given by his
103
have
gone
through
the
first
remand
application Ex-D-81(R.A.35 of 2003) wherein accused no.2 Ashart, accused no.3 Fehmida and her daughter Ms.Farheen were produced before Special Court on 1.9.2003 and in the remand application accused no.2
Ashrat was shown arrested at 20.20 hrs on 31.8.2003 and accused no.1 Hanif and his wife accused no.3 Fehmida have been shown arrested on 1.9.2003 at
03.00 hours.
I have gone through the remand order
of the POTA Court dt.1.9.2003 wherein it is clearly mentioned that accused no.2 Ashart admitted before the court that he was arrested yesterday morning i.e on 31.8.2003 and accused Fehmida and her daughter Farheen have submitted before the court that they were arrested on the morning of 1.9.2003. It is
thus clearly seen from the remand application and order of the court that it was accused no.2 Ashrat who himself admitted to have arrested on 31.8.2003. Arrest-cum-seizure panchanama also specifically
mention that accused Hanif and his wife Fehmida were arrested on 1.9.2003 in connection with C.R.No.75 of 2003. It is thus clearly established that accused no.1 and accused no.3 were arrested at about 03.00 hrs. on 1.9.2003 and not on 31.8.2003 and accused no.2 was arrested on 31.8.2003 at about 20.20 hrs.
Seizure of explosives from the house of accused nos.1 and 2.
104
Advocate
Wahab
Khan,
Ld.Counsel
appearing
for accused no.1 has submitted that evidence brought on record by the prosecution regarding the seizure of the explosive nos.1 substances 3 from the no house of
accused
and
inspires
confidence.
According to him prosecution produced no evidence to show that accused no.1 was possessing two houses in There the
Salim Chawl, Chimat Pada, Marol Naka, Mumbai. is no substance in this contention
because
factum of ownership of the house is irrelevant so far as the recovery of contraband articles from the house under section 27 of Evidence Act is concerned. What is required to be proved is that whether the house in which the contraband articles are found was in the possession of the the accused or not. It is the evidence of PW-98 PSI Talekar and PW-99 PSI
Vijay
Kandalgaonkar
that
R.No.D-7,
Salim
Chawl,
Chimat Pada, Mumbai was found in possession with accused no.1 and his family members and R.No.14 in Salim Chawl, Chimat Pada was also found in
possession with accused no.1. The evidence of both the above witnesses is supported by the unshaken testimony of panch witness PW-53 Shri Sunil Bhatia. It is therefore proved that both the rooms stated above were found in possession with family of
accused no.1.
105
It is further argued by Adv. Wahab Khan that
no offender will store the explosive articles in the house where he is residing with family members
especially when the plan of committing terrorist act is successfully executed. Even though apparently the above point seems to be attractive but fact remains that when the in may plan the think of city of causing is not series of bomb then
explosions offender
fulfilled the
storing
explosive
substances either in the house or some where else in pursuance of the conspiracy. I therefore do not
attach any weight to the above submission.
106 court
Adv. Wahab Khan has invited attention of the to the evidence who of panch witness Sunil led
Bhatia(PW-53/27)
said
that
accused
no.1
panchas and police in front of R.No.14 of Salim Chawl and it was found locked. Opposite to R.No.14
there was another room belonging to accused no.1 Hanif and the said room was also locked. Accused
Hanif took out the keys from the neighbouring room and opened the lock of R.No.14. In this respect it
is submitted that how the key of room no.14 has gone with the neighbour and the so called neighbour from whom the accused no.1 took the key has not been examined by the prosecution. It is therefore
submitted that the evidence led by the prosecution pertaining to the recovery of explosives from room no.14 of accused no.1 inspires no confidence. The
above
submission
of
Ld.
defence
counsel
is
not
tenable because it is the evidence of PW-53 Sunil Bhatia and PW-99 Vijay Kandalgaonkar that on opening the lock of room no.14 accused no.1 Hanif unlocked his another room which was adjacent to room No.14 and after taking the keys which was kept below the mattresses on the cot he opened the lock of room no. 14 and then accused no.1 Hanif took out yellow
coloured gunny bag from that room which was found containing 58 gelatine sticks and those were seized under panchanama Ex.P-395A. PW-53 has never stated
that accused no.1 Hanif had kept the key of his another room with the neighbour. Therefore there is no question of I examining have any neighbour by the the
prosecution. evidence PW-98 of
carefully
scrutinized Sunil PW-99
panch
witnesses
PW-53 and
Bhatia, Vijay
PSI
Suryakant
Talekar
Kandalgaonar and it is found that the testimony of all the above three witnesses have not been
dislodged
in their respective cross-examinations.
The evidence of police officers PW-98 and PW-99 is well supported by the testimony of panch witness Sunil Bhatia(PW-53) and all the three witnesses have thus gave evidence regarding the contents of seizure panchanama Ex.P-394A and Ex.P-395A. There is no
material on record to cast doubt about the veracity of the evidence of above three witnesses. nos. 1 and 3 do not dispute the Accused of
seizure
passports, visiting cards and other documents from their house. They however denied seizure of
explosives on 1.9.2003 vide Ex.P-394/A and 395/A. After having gone through the oral and documentary evidence on record, I find that the documents and explosive substances came to be seized from the
house of accused no.1 i.e room no.D-7 Salim Chawl, Chimat Pada, Mumbai on 1.9.2003 at about 2.35 hrs. vide panchanama Ex.P-394/A and explosive substances i.e 58 gelatine sticks were recovered from the room no.14 possessed by accused no.1 situated at Salim
Chawl, Chimat Pada, Mumbai vide panchanama Ex.P-395A.
107
Adv.
Kunjuraman
Ld.
Counsel
appearing for
accused no.2 Ashrat has submitted that Ex.P-385 is the seizure memo of the articles from the personal search of accused no.2 held on 31.8.2003 at 20.35 hrs and soon after five minutes of concluding the above seizure memo accused no.2 is alleged to have given information to police regarding the place
(house of accused no.2 situated on the first floor at Juned Nagar, Juhu Galli, Andheri(West) explosive substances were stored. where the no2
Accused
thereafter led towards his above house and produced 30 gelatine sticks, 3 alarm clocks and 8 detonators which came to be seized under panchnama Exh.P-393-A which was concluded at 22.40 hours. According to Adv. Kunjuraman, panch witnesses of Exh.P-385 and panchas in Exh.P-393 are different. Disclosure
panchnama Exh.P-393 appears to have been commenced within 5 minutes from concluding the seizure memo Exh.P-385 and still IO has selected different
panchas to witness the subsequent search.
According
to Adv. Kunjuraman, the panchas in Exh.P-385 should have been continued to witness seizure in Exh.P-393 and this circumstance throws doubt about the
veracity of both the seizure memos. Nikam replied the above query
Special PP Mr.
by submitting that
when the other panchas are made available to the police, then there is no propriety in continuing the same panchas to witness the house search of accused no.2. because I find substance in the above submission both the seizure memos are different.
Exh.P-385 is the panchanama of the articles which came to be seized from personal search of accused no.2 and Exh.P-393 is the panchanama of the seizure of explosive substances from the house of accused no.2. Therefore, selection of different panchas for
both the seizure memos cannot be a ground to throw doubt regarding the genuineness of the above seizure memos.
108
Advocate Kunjuraman has further argued that
the fact of seizure of explosive substances from the houses of accused nos. 1 and 2 have not been
mentioned in the first remand application of accused persons dated 1.9.2003 and therefore the seizure evidence remand para-3 is doubtful. I have gone through 1.9.2003 the and
application on page
Exh.D-81 of the
dated
no.2
remand
application
specifically mentions that at the instance of the accused gelatine (timer), crackers persons sticks, contraband 20 articles 12 i.e. 205
detonators, wire,
alarm machine,
clocks fire seized and
soldering etc. from were the are instead
clipper
recovered. house not of
Articles accused in
separately accused
no.1
no.2
given
the of
remand gelatine
application,
total
number
sticks, detonators, alarms clocks and other articles seized in the houses of accused nos. 1 to 3 have been mentioned. According to Special PP Mr. Nikam
mentioning of total number of explosive substances
of
various
nature 1 and
recovered 2 is
from
the
houses
of
accused
nos.
sufficient
for
seeking The
police custody remand of the accused persons. Magistrate before whom the accused are
produced
makes inquiry whether adequate grounds exists for remanding the accused to police custody and after satisfying himself about the grounds, accused are remanded to police custody as per section 167 of Cr.P.C. The fact of seizure of explosive substances from the houses of accused nos. 1 and 2 is mentioned in the remand application dated 1.9.2003 and
therefore on that basis the accused were remanded to police custody till 15.9.2003. Special P.P. Mr.
Ujjwal Nikam has therefore submitted that there is no substance in the above submission of Advocate Kunjuraman. Accepting the above argument of
Special PP. Mr. Nikam, I am of the view that the point raised by Adv. Kunjuraman is not sustainable in law.
109.
Advocate
Kunjuraman
has
urged
that
panch
witness PW 53 Sunil Bhatia has stated in crossexamination that articles in his presence were not sealed and therefore it is submitted that seizure of the articles was not proper. Adv. Wahab Khan,
learned Counsel for accused no.1
has also submitted
that the articles seized vide panchnama Exh.394-A and 395-A were not sealed and non sealing of the
articles would cast doubt on the prosecution case. In support of the above submission he placed
reliance on Amarjit Singh V/s. State, 1995 SCC (Cri) 828. I have carefully gone through the evidence of PW53 Sunil Bhatia so as to find out the above
statement in his evidence, but PW 53 is found not to have made such a statement in his evidence which is attributed to him. On the contrary, he has stated
that all the seized articles were packed, labelled and duly sealed in his presence and label bears the signature of panchas and police officers. His
cross-examination
discloses that while sealing the
articles the red stick was made hot and then it was pressed on the wrapper. Police used candle and For
lighter for giving heat to the red stick.
sealing the seized articles police used transparent plastic, cardboard, string, stapler, cello tape,
small cartoon boxes and cotton and the sealing kit was carried by PI Savde. PSI Talekar (PW98) also
gave evidence of sealing of the seized articles. Therefore, the above submission of Advocate
Kunjuraman and Advocate Wahab Khan is not tenable. In the above cited case appellant was found in
possession with revolver with two live cartridges. Police officer who seized the revolver did not seal it on the spot. It is thus held by the Hon'ble Apex
Court that the non sealing of the revolver on the spot was a serious infirmity as the possibility of tampering could not be ruled out. citation is not applicable to Thus, the above case as the
this
articles were sealed after the seizure.
110 that
It is further argued by Advocate Kunjuraman Juhu was Galli house recovery at 22.40 panchnama hours on
Exh.P-393/A
concluded
31.8.2003 and the same two panchas did not go to their own houses but found loitering around
Kandivali Crime Branch area with an expectation that their services would again be required by police for preparing Chimat Pada house panchanama Exh.P-394/A
which was concluded at 2.35 hours on the next day i.e. On 1.9.2003. Thus, according to defence
Counsel Advocate Kunjuraman the services of panch witnesses were taken by the police from 20.40 hours on 31.8.2003 till 2.35 hours of 1.9.2003 and this is one of the circumstances to cast doubt about the genuineness substance different panchnamas Advocate in of the seizure memos. I find no when
the
above are
submission taken for is
because two
panchas still
different taken by are
objection and if
being same
Kunjuraman
panchas
continued to witness two different seizure memos
still objection is raised. It is thus seen that the approach of learned defence Counsel is not
consistent and simply because the same panchas are selected by the police to witness another seizure that cannot be the ground to throw doubt about the genuineness of he seizure memos. Thus, all the
points raised by Advocate Kunjuraman doubting seizure of explosive substances from the house of accused no.2
vide panchanama Exh.P-393/A are devoid of merit. 111 Evidence of I.O. reveals that the sample of substances seized by the officers of
explosive
Kandivali Unit on 31.8.2003 and 1.9.2003 from the houses of accused no.1 and 2 were sent to Forensic Science Laboratory on 15.9.2003 and 9.10.2003 vide forwarding letter Exh.P-587 and Exh.P-588 and these forwarding letters bear the endorsement of concerned clerk Shri Khavanekar working in Forensic Science Laboratory of having received the above articles on 26.9.2003 and 9.10.2003. dt. 19.11.2003 about Exh.P-595 is the report the destruction of the
explosives
sent
by
Joint
Chief
Controller
of
Explosives West Circle, Navi Mumbai.
Exh.P-591 and
Exh.P-592 are the C.A. Reports pertaining to the examination of the sample of the explosive articles seized from the houses of accused nos.1 and 2. Both the above reports dated 21.10.2003 disclose that gelatine sticks contained nitrocellulose and
nitroglycerine as well as ammonium nitrate and dust. Nitrocellulose, nitroglycerine, ammonium nitrate GEL
were also detected on gelatine sticks on which 80 NECL, Hingni Wardha were detected in were printed. clips,
No explosives alarm clocks,
metal
soldering wires and polyester yarn.
It is therefore
proved that the gelatine sticks and detonators which were seized from the houses of accused nos. 1 and 2
are the hazardous explosive substances.
Grievance of the accused violation of procedural section 52 of POTA 2002.
persons regarding safeguards under
112
Advocate Wahab Khan, Advocate Kunjuraman and
Advocate Pasbola, Ld. Counsels appearing for accused nos.1 to 3 respectively, have submitted that after the arrest of the accused persons custody memos were not prepared by the arresting officers and the
accused were not informed their right to consult legal practitioner. The fact of the arrest of the
accused persons was also not communicated by the police to their Thus, family there members was total or to their of
relatives.
violation
procedural safeguards by the officers of DCB CID after arrest of the accused persons. For
appreciating the above submission it is necessary to reproduce here section 52 of Prevention of Terrorism Act, 2002: Section-52 Arrest -(1) Where a police
officer arrests a person, he shall prepare a custody memo of the person arrested. (2) The person arrested shall be informed
of his right to consult a legal practitioner as soon as he is brought to the police
station. (3) Whenever any person is arrested,
information
of
his
arrest
shall
be
immediately communicated by
the
police
officer to a family member or in his absence to a relative of such person by telegram, telephone or by any other means this fact shall be recorded by the under the signature (4) and
police officer
of the person arrested.
The person arrested shall be permitted
to meet the legal practitioner representing him during the course of interrogation of the accused person: Provided that nothing in this sub-section shall entitle remain present the legal practitioner the period to of
throughout
interrogation.
113
Sub-section
(1)
of
section
52
casts
duty
upon the police officer to prepare a custody memo when a person is arrested. PW.99 spoke that custody memo of accused no.1 was prepared on the spot, but no such memo is produced on record. the custody memo-cum-seizure Exh.P-385 is of the
panchnama
articles found in the personal search of accused no. 2 Ashrat which was concluded at about 20.35 hours on
31.8.2003 and it is signed by both the panchas and PW-51 signed PSI by Toradmal. accused The no.2 said panchnama who is has also made
Ashrat
endorsement of having received copy of the same. The form of custody memo is not prescribed under POTA, 2002. DCB CID Unit No.XI has therefore treated Exh.P-385 as custody memo of accused no.2. I am of
the opinion that no fault can be found in the above procedure adopted by the officers of No.XI. DCB CID Unit
So far as accused nos. 1 and 3 is concerned, and PW 99 PSI
panch witness PW-53 Sunil Bhatia
Kandalgaonkar have stated in the cross-examination that no separate arrest panchnamas of the above It is
accused persons were prepared by police.
therefore seen that the officers of Kandivali Unit have not complied the procedural safeguards given in Sub section(1) of section 52 of POTA 2002 so far as accused no.1 and accused no.3 is concerned.
114
PW-103
Shri Suresh Walishetty is the Chief
Investigating Officer. It is stated by him that he visited the office of Kandivali Unit at 1.00 hours on 1.9.2003. At about 3.00 hours accused no.1
Hanif, his wife Fehmida and their daughter Farheen as well as accused no.2 Ashrat were brought by PI Savde and other staff members to Kandivali Office. All the above accused were produced before him.
This witness claims to have interrogated the accused persons when they were produced before him. It is
the evidence of PW-103 Shri Walishetty that he asked the accused persons to engage advocate of their
choice, but accused no.1 Hanif, accused no.3 Fehmida and their daughter Farheen declined to engage the Advocate. Advocate Pasbola, learned Counsel
appearing for accused no.3 has invited the attention of the Court to Para-152 of the cross-examination of IO Shri Walishetty who has stated that he did not remember whether it was mentioned by him in the station diary that the accused persons declined to engage Advocate. He claims to have mentioned the
above fact in the crime report.
He further spoke
that he did not have documentary evidence to show that the accused were apprised of their right to consult the legal practitioner. Advocate Pasbola has therefore submitted that there is non compliance of the mandatory provisions of sub-section (2) of
section 52 of POTA 2002. sustain the above argument. that he interrogated their right
I find it difficult to When IO states on oath nos. consult 1 to the 3 and legal
accused to
apprised
practitioner and entry to that effect was made in the crime report. Simply because copy of the crime report is not produced by him, that cannot be the ground to disbelieve the statement of IO pertaining to the compliance of sub-section (2) of section 52 of POTA 2002.
115
Sub section (3) of Section 52 of POTA 2002
is about giving information by the police officer of the arrest of the accused to his family members or
in
the
absence
of
his
family
members
to
his
relative. PW-97 PSI Vankoti has stated that accused no.2 Ashrat on 31.8.2003 led him and panchas to his house situated at Juned Nagar, Juhu Galli, Andheri (West) and mother of accused no.2 viz: Kamarunnisa and his two sisters i.e. Tabbassum and Nagama were present in the house. Accused no.2 took out one tin
box from his bedroom and the tin box was found containing 30 gelatine sticks, 3 alarm clocks and 3
detonators and the said articles were seized under panchanama Exh.P-393-A. Accused no.2 was already It
arrested at about 20.20 hours on the above day.
is also mentioned in the seizure memo Exh.P-393-A that the mother and two sisters of accused no.2 Ashrat were present when the above explosives came to be recovered from his house. Thus, when the
family members of accused no.2 i.e mother and two sisters were already present in the house at the time of recovery of explosive substances, therefore, there is no question of giving separate information
to
the
family There
members was thus
of
the
accused
about of
his sub
arrest.
proper
compliance
section(3) of section 52 of POTA,2002 so far as accused no.2 is concerned.
116
It
is
admitted
position
that
the
then
Commissioner of Police Shri R.S.Sharma and the then Home minister Shri Chhagan Bhujbal held press
conference on 1.9.2003 and it was attended by the media persons. It is stated by DW-5 Shri Ranjitsingh Sharma (Retired C.P.) that press note was circulated in the above conference and it was addressed by Home Minister. Press note Ex-D-107 was prepared which is
regarding arrest of accused persons in bomb blast cases. Ex-D-76 is the news item regarding the
arrest of the accused persons in bomb blast cases which was published in Times of India on 2.9.2003. Accused nos.1 to 3 were arrested at about 3.00 hrs on 1.9.2003 and it is the evidence of IO Shri
Walishetty that at about 12.00 hrs on 1.9.2003 all
the arrested accused persons were taken by him to Bhabha Hospital for their medical check-up. Since
accused no.1 Hanif complained of chest pain and high B.P., therefore he was admitted in Bhabha Hospital and remaining accused were later on produced before the special court for seeking the remand. It is therefore made clear that soon after the arrest of accused persons the press conference was held by the officers of DCB CID on 1.9.2003 and press note
relating to arrest of accused persons was later on published in prominent news paper i.e Time of India on the next day. Media persons also attended the
press conference dtd.1.9.2003. Thus the fact of the arrest of accused persons was informed to the public at large through print and electronic media.
Therefore according to me there is proper compliance of sub-section (3) of section 52 of POTA,2002 so far as accused nos.1 and 3 is concerned.
117
Accused no.1 Hanif (DW-4) in his evidence
has stated that he was taken to Bhabha Hospital on 1.9.2003 and after giving discharge from the
hospital he was produced before the court and he was remanded to police custody for 14 days. It has come
in his evidence that he was taken for medical checkup in the hospital on alternate day. He made no
grievance in his evidence that he was not permitted by police during the course of interrogation to meet the legal practitioner. No such grievance is made
by accused nos. 1 to 3 in their examination under section 313 of Cr.P.C. The net result of the above
discussion is that there is substantial compliance of the procedural safeguards given under section 52 of POTA 2002.
CONFESSION OF ACCUSED NO.2 ASHRAT
118
It
is
the
evidence
of
P.W.88
Shri
Vinod
Lokhande, Dy. Commissioner of Police, that after receipt of the order of the Joint Commissioner of
Police
(Crime)
dated
10/09/2003
of
recording
confession of accused no.2 Ashrat he sent letter to ACP Shri Walishetty directing him to produce the accused Complex. in his office situated at Bandra Kurla
Accordingly, on 11/09/2003 at 12.00 hours
accused no.2 Ashrat was produced before DCP in his chamber. party. Accused was not handcuffed by the escort PW-88 then directed escort party to leave
his chamber. Accused no.2 and DCP Shri Lokhande were the only two to to persons PW-88 the in the chamber he of gave DCP. his the
According
initially accused and
introduction
questioned
accused about his family background. Accused was asked whether he was tortured by police and accused said 'no'. Accused was also asked gave by him DCP Shri or
Lokhande
that
whether
police
threat
inducement or he was pressurized or allured to give the confession to and P.W.88 accused he replied asked police in the to negative. accused make him
According whether he
also by
was
promised
approver and accused gave reply in negative.
On
making inquiry about the purpose of producing the accused before DCP it was stated by accused that he informed the IO that he wanted to give confession and therefore he was produced by IO before Lokhande. DCP Shri Lokhande then DCP Shri the
explained
accused that he was not bound to give the confession and if he gave the same it would be used against him as evidence and accused said that he was knowing the above legal position.
119
Accused was asked
by DCP
as to why he was
willing to give confession and accused replied that he was accepting whatever he had done and he wanted to know the others as to why there was feeling in his mind to take the revenge. accused whether he required or P.W-88 asked presence while of the his
relatives,
friends
Advocate
giving DCP for
confessional statement and accused said Shri Lokhande then gave him 24 hours
'no'. time
reconsideration.
Part-I
of
the
confessional
statement was recorded by
DCP Shri Lokhande in the
mother tongue of the accused i.e. In Hindi language and it was read over and explained to him.
Thereafter, statement
DCP signed part-I of the confessional obtained signature of the accused
and
thereon and then directed Sr.P.I of Bandra Police Station to keep the accused in the lock-up of the
BKC Police Station and produce him at about 1.00 p.m on 12/09/2003. Part-I of the confessional statement dt. 11/09/2003 is at Exh.501. Accused was again
produced before
DCP Shri Lokhande
at 1.30 p.m on PSI
12/09/2003 by PSI Pawar of BKC Police Station.
Pawar and other police personnel were asked by DCP Shri Lokhande to leave his chamber. alone in his chamber. P.W.88 asked Accused was the accused
whether the time given to him for reconsideration was sufficient It and is accused the replied of in DCP the Shri
affirmative.
evidence
Lokhande that he then asked whether there was any
pressure, inducement, coercion, duress or threat for the accused to give confession and accused said
'no'.
It was again explained to the accused that it
was not binding upon him to give the confession and if it was given it would be used as evidence against him and accused said that he knew the above legal DCP Shri Lokhande became was ready he convinced to give that the
position. accused
voluntarily and
confession
thereafter
started
recording
confession of the accused as per his say. After recording explained the to confession the accused it was and read accused over got and it
confirmed that it was written as per his version. Accused Ashrat signed each and every page of the confession and it was countersigned by DCP Shri
Lokhande. After completing the confession it was certified by DCP that confession was given
voluntarily by the accused and it was written by him as per his version and accused admitted to have recorded it as per his say. Part-II of the
confession is at Exh.501-A.
120
After
recording
the
confession
of
accused
no.2 the said confession was kept in one envelope and envelope was sealed. One separate letter was addressed by DCP Lokhande to the Chief Metropolitan Magistrate and API Shri Dilip Kale of BKC Police Station was directed to produce the accused before the Learned CMM and hand over the sealed envelope and covering of letter the to him at the of time the of the
production
accused.
Copy
letter
addressed by DCP Lokhande to CMM is at Exh.P-502
121
The gist of the confession given by accused
no.2 Ashrat before DCP Shri Lokhande on 12//09/2003 is as under:
(a)
Accused
no.2
said
that
he
took
education
upto 9th standard and after leaving the school in the year 1995 he started doing work of hand
embroidery. In the year 2001 he went to Surat where he worked for 6 months. After the incident of
Godhra carnage there were atrocities on Muslims and therefore he left Surat and came to Mumbai. met with his schoolmate Jahid Patne, He then who was
residing at B-104, Chandresh Upvan, Lodha Complex, Naya Nagar, Mira Road. Jahid was doing job of
operator in one pipe factory in Dubai. Accused no.2 Ashrat said to Zahid Patne that he wanted to take revenge of atrocities which was being committed on Muslims in India and abroad. Then Jahid Patne said him that he would start his mission only after
coming back accused no.1 Hanif to Mumbai.
(b) month
Accused of
no.1
Hanif 2002.
returned He
India
in
the
September,
contacted
Accused
Ashrat on telephone.
Accused no.2 Ashrat was not in
home but after coming to home he was informed by his family members that Hanif gave his contact number as 28527761 and Ashrat was asked to contact him.
Accordingly, Ashrat contacted Hanif on above said number. Hanif gave him the address of his house and asked Accused no.2 Ashrat to see him in his house. Ashrat reached the house of Hanif in the evening of 29/11/2002. Nasir was already present there. Nasir
disclosed them that they should explode bombs in Mumbai with a view to take revenge of atrocities on Muslims. At the instance of Nasir Accused no.2
Ashrat went to the house of Hanif at 4.30 p.m. on 02/12/2002. A plastic bag containing bomb was put in the cloth bag and then Accused no.2 Ashrat and Hanif went towards SEEPZ BEST Bus Depot for keeping the cloth bag containing bomb in the BEST Bus. Time was set in the bomb as 7.00p.m. Accused no.2 Ashrat boarded the BEST bus of route no.314 alongwith cloth bag and Hanif left the bus stop. On the next day it
was found that the above bomb was defused by police.
(c)
It was stated by Accused no.2 Ashrat that
Hanif, Nasir and he himself made a plan to explode
bomb in Ghatkopar area.
He approached the house of
Hanif at 4.00 p.m. On 27/07/2003 and thereafter 45 minutes Nasir came there. Hanif, Nasir and accused
no.2 had been in the loft of the house of Hanif and by using 44 gelatine sticks and detonators they
prepared bomb. Nasir asked Ashrat to take accused no.3 Fehmida with him for placing the bomb in BEST Bus of Route no.340. Accused no.3 became ready to
accompany Ashrat for the above purpose.
(d)
As
per
the
plan
Accused
no.2
Ashrat
and
Fehmida went towards Andheri and boarded BEST Bus of route no.340. They occupied back seat near window in the Bus and the cloth bag containing bomb was kept by them below the seat. They had obtained ticket
for Asalfa, but they got down at Marol Pipe line Bus Stop. On the next day, they read in newspaper that
two persons were died and 52 became injured in the incident of bomb blast in BEST Bus at Ghatkopar.
(e)
On 17/08/2003 Nasir said Ashrat and Hanif
that henceforth they would explode powerful bombs at Mumbadevi and Gateway of India. On 23/08/2003 Hanif asked Ashrat to see him at Andheri. Ashrat
therefore on the next day i.e. 24/8/2003 went to Grill Market at Andheri where he saw Hanif his wife and their both the daughters and Nasir. Nasir told
him that they were going towards Gateway of India to select the place of planting the bomb and he asked Accused Ashrat that he would see him in the evening. It is stated by Accused Ashrat that he alongwith Nasir went to Zaveri Bazar at 4.00p.m. On 24/08/2003 and Nasir selected the place of planting the bomb in a taxi and that place was in Zaveri Bazar Market.
(f)
On 25/08/2003 at 8.30 hours Accused Ashrat
went to the house of Hanif. After sometime Nasir also came there. Thereafter they came on the road in front of house of accused Hanif where Maruti Van of red colour was parked. Nasir took out two boxes
from that van which contained bombs and time was fixed therein as 1.00 p.m. Thereafter 15 minutes Hanif alongwith his wife Fehmida and two daughters came there in autorickshaw. They took one gray
colour air bag from the van and thereafter Hanif and his family members left the spot. Accused no.2
Ashrat and Nasir took out sky blue colour nylon bag from the van containing bomb and that bag was kept in the dickey of the taxi and taxi was taken to Zaveri Bazar. Accused no.2 Ashrat asked the taxi
driver to take the taxi near the place which was already selected by him and Nasir. Since there was
no place of parking on that place therefore taxi driver parked the taxi on the taxi stand. Accused
no.2 Ashrat said taxi driver that the person to whom the bag was to be given did not come there. He
said the taxi driver that he would come back within short time as he wanted to purchase some goods. Accused no.2 left the taxi and he went towards of
Charni Road and after crossing the distance
about 200 meters, he heard the sound of bomb blast. He was however arrested by police in Juhu Galli on 31/08/2003 .
122
Accused no.2 Ashrat was produced by PI Dilip
Kale before CMM at his residence on 12/09/2003 at 11.30 a.m. and accused was asked whether he was having any complaint of ill-treatment and he replied in negative. The statement of Ashrat was recorded separately by CMM. According to CMM, Part-I of the confessional statement Exh.501 was read over to the accused by him and each and every word therein was admitted by accused saying that the whole statement was recorded as per his say. He has admitted of
having made signature on Part-I of the confession. CMM thereafter read out Part-II of the confessional statement to accused no.2 recorded on 12/09/2003 which is running into 13 pages. Accused no.2
admitted his signature on each and every page of Part-II of the confession. He has disputed some
portion appearing on page nos. 7,8,9 and 10 of PartII of the confession. 7 is as under. I asked Hanif as to who was Nasir and Hanif replied that Nasir was agent of Pakistan and he knows the technique of preparing bomb, who will teach us the same technique. then asked Hanif why he was doing so I and The disputed portion in page
Hanif replied that he is doing everything to liberate Kashmir. Pakistan wanted that he
should explode bombs at various places in Mumbai so that Indians should feel insecure in their country .
123
Accused no.2 Ashrat has disputed following
portion appearing on page no.8 of his confession. Nasir said us that this time he would
explode bombs by giving challenge. I asked him why he would give challenge and if such challenge is given then we would be
arrested by police. Nasir then said that he was having associates in abroad who would apprise journalists and media persons the fact of exploding bombs in advance .
124 portion
Accused
no.2 on
has
also
disputed and 10
following of his
appearing
page
no.9
confession. There was already explosion in Ghatkopar area and if again explosion is made in that area then most of the people that area who are residing would in be
Gujaraties
panicked' .
Disputed portion on page no.10. Likewise many persons residing abroad visit Gateway of India and if bomb this place blast is done on minds the
there would be terror in the who
of European and American persons, place. As a result of this,
visit
they would not
visit India and India would international community .
be
defamed
in
the
Rest of the portion appearing in Part-II of the confessional statement which is inculpatory was
admitted by accused no.2 when read over to him by learned C.M.M. Ashrat has admitted his signature appearing on each and every page in Part-II of his confession. Accused n.2 has admitted his role in
the matter of planting bomb in BEST Bus of Route NO. 314 at SEEPZ on 02/12/2002 and keeping the cloth bag containing bomb below rear seat of BEST Bus of Route NO.340 on 28/07/2003 which was exploded at 9.10 p.m at Ghatkopar, and resulting 52 into the death He of has two also
persons
injuring
persons.
admitted to have conspired with accused no.1 Hanif and Nasir to plant the bomb in motor taxis at Zaveri Bazar and Gateway of India at noon time and he himself went to the Zaveri Bazar in the motor taxi on 25/08/2003 in and the kept taxi nylon and left bag the containing spot and
explosives
thereafter
that
taxi
was
blown
in
the
explosion
resulting into the death of several persons and many were injured.
125 accused
Advocate no.2 of
Kunjuraman, has
learned that is
Counsel
for
submitted no.2
confessional and
statement
accused
fabricated
concocted as following facts have not been mentioned in the confession. Accused no.2 has not stated in his confession that the explosive articles were
recovered from his house vide panchnama Exh.393. Accused was actually arrested on 30/08/2003 at 10.30 hours, but it is mentioned in his confession that he was arrested on 31/08/2003 from Juhu Galli. Source of ammunition used in the bomb blasts is not
mentioned in the confession. The place from where the gelatine sticks were obtained and the persons who trained the accused to assemble and to explode bombs are silent in the confession.
126
The above submission of Advocate Kunjuraman
is not sustainable because it is already found by this Court that accused no.2 was arrested near his house on 31/08/2003 at about 8.20 p.m.. not mentioning in to and of his say the date of Therefore as be on a is that
arrest cannot
31.08.2003 circumstance fabricated
confession that the It
confession is true
concocted.
confessional statement of accused no.2 Exh.501-A is silent on the point that explosives were recovered from his house. But, according to me, absence of
such fact in his confessional statement by itself would not discredit his confession. It is also
submitted that the fact of assembling and exploding bombs is not mentioned in the confession. According
to me, what is stated in the confession is more important than what is not stated. 127 It is submitted by Advocate Kunjuraman that DCP Shri Lokhande is silent
the evidence of PW.88 on following points:
a) It is deposed by
DCP Shri Lokhande that
he has not gone through the Criminal Manual while recording the confession of the accused (b) It is stated by him that he does not remember whether he promised to the accused that he would not be sent to the custody of DCB CID in case he refused to give confession. (c ) Evidence of P.W.88 DCP Shri
Lokhande shows that he had not informed the accused that he was competent to record the confession under POTA Act. (d) P.W.88 did not ask the accused the date of his arrest, his period of police custody and whether information of the arrest of the accused was given to his relatives or not. It is thus submitted
that P.W.88 DCP Shri Lokhande made no proper inquiry with the accused before starting to record the
confession and therefore confession of accused no.2 can not be relied upon. 128 because I am not impressed by the above argument the procedural safeguards are given in
section 32 of POTA 2002 and if it is found that one
of the procedural safeguards in section 32 is not followed then and then only it can be said that the confession of accused no.2 was not recorded in free atmosphere. Now, it is to be seen that whether the given in section 32 of POTA
procedural safeguards
2002, has been followed by P.W.88 DCP Shri Lokhande or not.
129 there
It is submitted by Advocate Kunjuraman that is non compliance of sub section (2) of
section 32 of POTA 2002 as DCP gave no warning to the accused that he was not bound to make confession and if he did so the same may be used as evidence against him. I have carefully gone through Part-I
and Part-II of the confession of accused no.2 and it is found in both the Parts of confession that it was specifically asked by DCP Lokhande to the accused that he was not bound to make confession and even if he gives the same it would be used as evidence against him. Certificate recorded by DCP below the
confession also mention similar warning. clearly seen that
It is thus
DCP Shri Lokhande has followed
the procedural safeguard given in sub section (2) of section 32 of POTA 2002.
130
It is found from the evidence of PW88 that DCP Shri Lokhande that he was
accused was asked by
no more in the custody of investigating agency and he was in the custody of P.W.88. Accused was asked by DCP whether he was assaulted or threatened by It was also inquired was by given police any or
police and accused said 'no'. by P.W.88 that or he whether was
accused
inducement
pressurized
allured for giving confession and accused replied in negative. that he Accused gave reply to the question of DCP was not promised by police of becoming
approver. Not only this, the accused that whether
DCP Shri Lokhande asked the presence of his
relatives, friends or Advocate was required at the time of recording his confession and accused stated
that the presence of anyone is not required. After questioning the accused to the above fact he was granted 24 hours time for reconsideration of his decision and when accused was produced before him on 12/09/2003 he was again subjected to questioning and he was asked whether the time granted to him for reflection was found sufficient or not and accused gave reply in the affirmative. It is deposed by DCP Shri Lokhande that after preliminary inquiry he was satisfied that accused had decided voluntarily to give confession and thereafter he started writing confession as per his say. The evidence of P.W.88 DCP Shri Lokhande has not been shaken even slightly in his cross-examination. I, therefore, find that confession of accused no.2 Ashrat was recorded in an atmosphere free from threat or inducement and it was recorded in Hindi language which is mother tongue of the accused. There was thus proper compliance of
sub section (3) of section 32 of POTA 2002.
131
From the evidence of PW-88 DCP Shri Lokhande
and the statement of accused recorded on 12/09/2003 by CMM which is at Exh.501 colly., it is found that after recording the confession of the accused no.2 he was produced before CMM by API Dilip Kale of BKC Police Station within 24 hours. from Exh.501 (colly.) It is also seen
that the entire confession
Part-II was read over and explained by CMM to the accused and the portion disputed by him has been specifically recorded by CMM in his statement. PartII of the confession was recorded on 12/09/2003 and on the same day he was produced before CMM,
therefore, there is proper compliance of sub-section (4) of section 32 of POTA Act. 132 It is found from Exh.501 (colly.) that the
CMM before whom accused was produced on 12/09/2003 recorded the statement of the accused who said that he had no complaint of ill-treatment at the hands of police. Accused was read over his confessional
statement and the comment of the accused regarding
his
confession
has
been
recorded
by
CMM
and
thereafter accused was remanded to police custody. Advocate Kunjuraman has invited attention of the Court to sub-section (5) of section 32 of the POTA 2002 and submitted that after confirmation of the confession by CMM accused was not sent to judicial custody but he was sent to police custody and non observance of mandatory provision of sub-section
(5) of section 32 of the POTA 2002 is the best circumstance to show that the confession of accused was not recorded in free atmosphere. Special PP Mr. Nikam in this respect has submitted that the
provision of sending accused to judicial custody after verification of confession is not mandatory and in this respect the Hon'ble Apex Court in State (N.C.T.) of India V/s. Navjyot Sandhu, reported in 2005 ALL MR (Cri)2805 (S.C) has observed in para-17 that... The lofty purpose behind the mandate that the maker of confession shall be sent to judicial custody by the CJM before whom he
is produced is to provide an atmosphere in which he would feel free to make a complaint against the police, if he so wishes. feeling that he will be free from The the
shackles of police custody after production in the Court will minimize, if not remove, the fear psychosis by which he may be
gripped. in Section
The various safeguards enshrined 32 are meant to be strictly
observed as they relate to personal liberty of an individual. here. provision The as However, we add a caveat enforcement remand merely may at of and on the the the
strict to of
judicial confession
invalidation ground some of
its
non-compliance difficulties arise that
present times. the
practical may
Situations
even
after
confession is made by a person in custody, police custody may still be required for the purpose of further investigation. Sending a
person to judicial custody at that stage may retard further the investigation. to be Sometimes, taken by the the
steps
investigator
with the help of the accused
may brook no delay. An attempt shall however be made to harmonize with this the provision powers in of
Section
32(5)
investigation available to the police.
At
the same time, it needs to be emphasized that the obligation to send the confession maker to judicial custody cannot be lightly disregarded. The police custody cannot be given on mere asking by the police. It
shall be remembered that sending a person who has made the confession to judicial
custody after he is produced before the CJM is the normal rule and this procedural
safeguard should be given its due primacy. The CJM should be satisfied that the that it is
absolutely
necessary
confession
maker shall be restored to police custody for any special reason. sending him back to Such a course of custody could
police
only be done in exceptional cases after due application of mind. such person to Most often, sending judicial custody in
compliance with Section 32(5) soon after the proceedings are recorded by the CJM subject to the consideration of the application by the police after a few days may not make material difference The CJM for has a further duty to
investigation.
consider whether the application is only a ruse to get back the person concerned to
police
custody
in
case
he
disputes
the
confession or it is an application made bona fide in view of the need and urgency
involved.
We are therefore of the view that
the non-compliance with the judicial custody requirement does not per-se vitiate the
confession, though its non-compliance should be one of the important factors that must be borne in mind in testing the
confession. (Emphasis supplied)
133
Relying upon the above observations of the
Hon,ble Apex Court it is submitted by Special PP Mr. Nikam that the further police custody of accused no. 2 was required by IO for making interrogation in respect of the contents of the confession. PP has invited attention of the court Special to the
evidence of PW 103 Investigating Officer in para-23 who deposed that accused no.2 Ashrat was produced before C.M.M. Since the investigation in respect of the case was incomplete and IO wanted to go to the
root of the conspiracy and to verify the volume of the conspiracy, therefore he needed further custody
of accused no.2 Ashrat. Special PP Mr Nikam has submitted produced remanded that before to accused the nos.1 to Court till 3 were and earlier were and
Special custody
they
police
15/09/2003
thereafter police custody remand of all the accused was extended till 26/09/2003 so as to make detail probe by I.O. into the incident of serial bomb
blasts. In all 4 offences were registered pertaining to serial bomb blast i.e. C.R. 400 of 2002
registered at MIDC Police Station, C.R. NO.235 of 2003 registered at Ghatkopar Police Station, C.R. No.201 of 2003 of at 2003 L.T. Marg police at Station and
C.R.NO.206
registered
Colaba
Police
Station. It is therefore clearly seen that there was practical difficulty before IO so as to complete investigation within first 14 days of the police custody remand. He was therefore required to get extension of the police custody remand of the
accused no.2 and the extension was granted by the Special Court till 26/09/2003. Special Court
considering
grounds
putforth
by
IO
for
making
further investigation of the offence the request of the IO for extension of police custody was granted by Special Court, IO wanted to take further steps with the help of the accused pertaining to the
contents of the confession and therefore application of the IO accused for seeking extension of the PC of the bonafide considering the need and
was
urgency involved in the matter. The Special Court gave serious thought to the request of the IO and granted further police custody to accused no.2 till 26/09/2003. I have already held above that there is absolutely no violation of procedural safeguard in section 52 of POTA Act and it is now seen that further police custody of the accused no.2 was
absolutely necessary for doing further investigation and therefore I am of the view that there is no breach of sub-section (5) of section 2002. 32 of POTA
134
Advocate Kunjuraman has further pointed out
that there are five confessional statements of 5 accused persons and all confessions are replicas of each other. All the said confessional statements are carbon copies of each other except the personal
details of concerned accused persons. To appreciate this point, it is to be remembered that the statute has not provided a prescribed form of recording the confessional statement of the accused u/s. 32 of POTA. Form of recording confession of the accused u/s. 164 of Cr.P.C. is given in the Criminal Manual. No such form of is the made available under below in POTA 2002. is of
Confession recorded by
accused not
POTA the
2002 rank
the of
officer
Superintendent
Police.
High
ranking
police
officers are not required to appear before the Court for giving evidence except proving sanction.
Investigating machinery might have prepared form for recording confession and the same appears to have been used by various DCP's in recording confession
of the accused.
What is important to be noted here
is whether the procedural safeguards provided in section 32 of POTA while recording confession of accused has been complied with or not. After having gone through the evidence of P.W.88 it is found that he has followed all the procedural safeguards given in section 32 of POTA. It is obvious that accused
may give similar replies as they have been arrested in one and the same case and they have taken part in the mission in pursuance of the conspiracy.
Therefore it is but natural that they gave similar reply to the questions put to them. Thus, all the points argued by Advocate Kunjuraman to disbelieve the confession of accused no.2 fall short. After
making scrutiny of the evidence of P.W.88 I find that his evidence has not been even slightly shaken in the cross-examination and he has observed all the procedural safeguards given in section 32 of POTA. I therefore, find that accused no.2 voluntarily gave the confession before P.W.88.
135
Accused no.2 appears to have been retracted
his earlier confession dated 12/09/2003 by sending letter to the Court through Jail on 02/04/2004 which is placed on record at Exh.D-5. In the above
retraction it is stated by accused no.2 that when he was produced before DCP Lokhande at that time Chief IO Shri Walishetty was was present near there on and 20 his blank
signature papers. should
obtained
about
He was said by IO Shri Walishetty that he do whatever his DCP will require be him to in do
otherwise
parents
would
involved
bomb
blast case. documents.
Again his signature was taken on 7 According to him, he gave no confession It
and his signatures were taken on blank papers.
is important to note here that the above retraction is made by accused no.2 after more than 6 months from recording his confession dated 12/09/2003.
Thus the retraction of the accused is a result of the legal advice received by him. Accused no.2 did
not
state
in was
his
examination by DCP
u/s.
313
that on
his
signature
obtained
Lokhande
blank
papers and Chief IO Shri Walishetty was present when his confession was being recorded. It is also not
stated by him that he was threatened by IO Shri Walishetty that he will have to act as per the say of the DCP otherwise his parents would be involved in bomb blast case. It was not suggested in the cross-examination of Walishetty(PW-103) that threat to the above effect was given by him to accused no. 2. Even no such suggestion was given in the cross-
examination of DCP Shri Lokhande that he obtained signature of the accused on blank papers. It is thus made clear that retraction Exh.D-5 is
inconsequential and cannot be relied upon and it does not affect the voluntariness of the confession Exh.501-A given by accused no.2 Ashrat.
136
It
is
further
submitted
by
Advocate
Kunjuraman that accused no.2 was arrested in CR No.
75 of 2003 in connection with Ghatkopar
bomb blast
still accused has in his confession admitted his overtacts in connection with the bomb blast of
Gateway of India, Zaveri Bazar
and in a case of When accused other three in
unexploded bomb at SEEPZ Bus Depot. was not of arrested bomb in connection then with
cases
blast
his
confession
connection with those cases can not be said relevant and therefore it cannot be acted
to be upon.
Special PP Mr. Nikam in this respect has submitted that even though Accused no.2 was not arrested in all four offences still he has narrated everything in respect bomb of his blasts involvement registered in at the matter of
serial
MIDC
Police Police
Station, Ghatkopar Police Station, L.T.Marg
Station and Colaba Police Station. Even though he was not arrested in connection with other 3 offenes still he has admitted his involvement in those
matters.
This itself shows the guarantee of the
facts narrated by him in his confessional statement
and in that view of the matter the confession of accused no.2 cannot be excluded from consideration and it can be acted upon. I find force in the Even
above submission of Special P.P. Mr. Nikam.
though accused was not arrested in connection with other three bomb admitted blast his incidents, role in in and still he his as the
voluntarily overtacts series of
narrated cases of
involving bomb
himself was
those
blasts
pursuance
criminal conspiracy hatched in between the accused persons. Therefore, confession of the accused on
that ground cannot be excluded from consideration.
Confession of accused no.3 Fehmida
137
Confession
of
accused
no.3
Fehmida
was
recorded by DCP PW-97 Mrs.Archana Tyagi on 22.9.2003 and 24.9.2003. Gist of the confessional statement of accused no.3 Fehmida is as under : a] It is stated by Fehmida that she
alongwith
her
husband,
son
and
two
daughters
is
residing in room No.D-7 Salim Chawl, Chimat Pada, Andheri(East), Mumbai since last ten years. Her
husband Mohd. Hanif is electrician and he is also earning by driving rickshaw. She said that her
marriage took place with Mohd. Hanif in 1984. After the marriage her husband was doing service as a wardboy in a hospital in Bagdad, Iraq. Again he
went to Saudi Arabia where he worked as electrician during 1992-1998. He returned to India from Dubai After returning to
in the month of September-2002.
India he delivered a letter to accused no.2 Ashrat which was addressed to him by PW-2 Jahid. Thereafter Ashrat and Hanif started meeting frequently. Nasir is the another friend of Hanif whose native is at Hyderabad. On 2.12.2002 at about 4.00p.m Nasir came to the house of Hanif alongwith one big envelope and thereafter house. Hanif and Nasir went on loft of the
Thereafter half an hour Ashrat came there
and then Hanif, Ashrat and Nasir left the house and
returned home at 7.00 p.m. After watching the news on T.V. at 10.00 p.m. they came to know that police got one parcel of bomb in BEST bus and then Hanif became disturbed.
b] July-2003
In Nasir
the came
last to
week her
of
the
month
of one
house
alongwith
parcel and it was kept by Hanif on the loft of his house. On the next day at 4.00 p.m. Ashrat came to
the house of Hanif and after half an hour Nasir also reached there. Hanif, Ashrat and Nasir sat together in loft and thereafter sometime all the three
persons disclosed to both the daughters of Hanif that Hindu people were doing atrocities on Muslims and therefore they wanted to take revenge by
exploding bombs in Mumbai and after hearing this Fehmida and their daughters agreed to help them in their mission. It was thereafter decided that Ashrat should keep a bomb in BEST bus of route no.340 and Fehmida should accompany him in the above bus. As
per the plan Ashrat and Fehmida went towards Andheri station by rickshaw and at about 7.00 p.m. planted a bomb in BEST bus of route No.340 below the last seat of the bus and obtained two tickets for Asalpha from the conductor, but both got down at earlier bus stop i.e. Marol Pipeline bust stop. After reaching home they saw the pictures of bomb explosions and the photos of injured persons on T.V. Nasir thereafter went to his native at Hyderabad. C] After some days Nasir returned from
Hyderabad at night in the house of Hanif and he was possessing 4-5 bags. All those bags were kept by Nasir on the loft of her house. On the next day
Ashrat came to the house of Fehmida. They closed the door and discussed the plan of committing bomb
blasts in a crowded place in Mumbai at Mumbadevi and Gateway of India.
D]
Thereafter 3-4 days Nasir came to the
house of Fehmida and disclosed that he had decided
to explode bombs in Gateway of India and Mumbadevi on 25.8.2003. and Prior both to the one day of 25.8.2003 and
Fehmida
her
daughters
Farheen
Sakira and Nasir hired a taxi saying taxi driver that they wanted to see the tourist places in
Mumbai. On 24.8.2003 they fixed the spot where bomb was to be exploded at Gateway of India. Thereafter
Fehmida, her husband and their two daughters went to Juhu galli in auto-rickshaw where they saw Nasir. Nasir asked Ashrat to see him in the evening and thereafter Ashrat left the spot. Hanif and his
family members were asked by Nasir to stay in Azad galli. After sometime Nasir came there alongwith taxi. Fehmida, Hanif and their two daughters got into that taxi and taxi driver was asked to take the taxi towards Colaba. Nasir asked taxi driver to
park the taxi in front of Hotel Taj in Pay and park area. After taking lunch in Bagdadi Hotel, all the said persons came to Andheri in the same taxi and asked taxi driver to come on the next day to go to
Colaba.
E] members sometime. to
After his
reaching house,
Hanif
and
his there
family after
Nasir
came
Nasir and Hanif went to the loft and Nasir stayed in the house
started preparing bombs.
of Hanif on the night of 24.8.2003 and on the next day early in the morning Hanif and Nasir got up and after taking two bags from the loft, they left the house and returned back after sometime. Ashrat came to her house at about 8.30 a.m. After having a cup of tea Ashrat and Nasir left her house. Fehmida, her husband and their two daughters went towards a lane of Rubi Coach Co. where Nasir and Hanif were found standing with one Maruti car. Nasir took out one bag from red colour Maruti car and handed over it to Hanif and the said bag was placed by Hanif in autorickshaw. Hanif and his family members including wife and daughters by that rickshaw went to Juhu galli. On the way Hanif said to his wife Fehmida
that time of 1.00 p.m was set in the bomb and the same time was fixed in the other bomb which was handed over to Ashrat.
F]
Rickshaw was parked in Barfiwala lane.
Hanif got down from rickshaw and went to fetch a taxi. The airbag containing bomb was taken out from
the rickshaw and it was placed in the dickey of the taxi and the dickey was locked. Taxi was then taken
towards Colaba via Hajiali, Pedder Road and taxi driver was asked to park the taxi in pay and park lot in front of Hotel Taj. While getting down from the taxi, taxi driver was seen chit-chatting with his friend. At that time it was 12.35 hrs and
therefore Hanif asked taxi driver not to waste the time and park the taxi in pay and park lot and be seated in the taxi waiting for themselves who would return within 15 minutes.
G]
Hanif
hired
another
taxi
and
reached
Santacruz
at
about
2.15
p.m.
where
he
contacted
Nasir on PCO. went towards
Thereafter they hired rickshaw and their home at Juhu galli. After
reaching home they saw news of bomb blast on T.V. After two days Ashrat came to their house to whom Hanif gave Rs.2000/-. When Hanif was in the house
on 1.9.2003 police came there and arrested Hanif, Fehmida and their both the daughters. Ashrat
accompanied the police.
Police took search of her
house and they found explosive substances kept in the loft of the house and those were seized .
Evidence recorded Fehmida.
of
DCP Mrs Archana Tyagi, who confession of Accused no.3
138. It emerges from the evidence of DCP
Mrs.Archana Tyagi-Sharma (PW-90) that on 22.9.2003 she received letter (Ex-P-520 )from Jt.C.P.(Crime) Mumbai directing her to record the confession of accused no.3 Fehmida. In pursuance of the above
letter DCP directed IO Shri Walishetty vide letter (Ex-P-521) to produce the accused before her on
22.9.2003 itself. Accordingly API Phadake and the staff members of DCB CID Unit No.IX produced accused Fehmida before DCP at 6.00 p.m. on the above day. It is the evidence of PW-90 that she asked API Phadake and police staff to leave her chamber and instructed guards chamber. not to allow anybody to enter in her
DCP made the accused comfortable by asking
her some questions about her family background. DCP (PW-90) told the accused that she was not connected with the investigation of the case in any manner and DCP then apprised the accused that she was no more in the custody of the DCB CID and she was taken in her personal custody. DCP asked the accused whether
she had any complaint against anybody and accused said 'no'. DCP further asked the accused the reason
of her production before PW-90 and accused said that since she expressed willingness before IO to give the confession and therefore she was produced before
DCP for recording her
confession. DCP then asked
the reason of her giving confession and she replied that she saw the dead bodies and injured persons in the television after the bomb blast and therefore she had decided to make the confession. It was
explained to the accused by DCP that she was not bound to give the confession and if she gives it the same can be used in the court as evidence against her. Thereafter accused said that she was knowing
this legal position and still she wanted to give the confession.
139
PW-90 spoke that accused was asked by her
whether she was induced, coerced or threatened by anybody to give the confession and she replied in the negative. Accused was also asked whether she was promised by anybody that she would be made approver and it was stated by accused that no such promise was given to her. According to DCP the answers given by the accused to her questions made her to realize
that
accused
wanted
to
give
the
confession
voluntarily. She was then informed by DCP that she would be given time for 40 hours for thinking over whether to give confession or not and in the
meantime she would be lodged in the lock up of Chembur Police Station and would be called back
again on 24.9.2003. Accused Fehmida was also asked by PW-90 whether she wanted to engage advocate or
to keep present any of her relative or friend on 24.9.2003 at the time of recording her confessional statement and she declined to have the above
facility. It is stated by PW-90 that she recorded first part of the confession of the accused in her handwriting in the language known to the accused i.e. Hindi language in question and answer form and she then obtained signature of the accused on each
and every page of the confession P-22. which is at Ex-
140.
Accused Fehmida was later on handed over by
DCP to the custody of API Bhujbal of Chembur Police station and he was instructed to take care that
nobody should meet the accused. Sr.PI of Chembur police station was directed by DCP to produce the accused before her on 24.9.2003 at 11.00 a.m. The letter to the above effect addressed to Sr.PI is placed on record as Ex-P-523.
141
Evidence of DCP discloses that as there was
no lock-up for female prisoners in Chembur police station, therefore accused was required to be
shifted in the lock-up of Ghatkopar police station and letter to that effect was sent to Sr.PI of Ghatkopar police station, copy of which is at ExP-524. It is seen from Ex-P-524 that Sr.PI of
Ghatkopar police station was directed by DCP ZoneVI, Mumbai that accused should be kept in separate lock-up and special guard consisting responsible
lady constable be deputed on the lock-up and the guard deputed should be checked up regularly by
Sr.PI and other officers. Sr.PI of Chembur police station was instructed to produce the accused
before DCP at 11.00 hrs on 24.9.2003.
142.
As
per
the
above
direction
accused
no.3
Fehmida was produced before DCP (PW-90)
at about
11.00 hrs on 24.9.2003 by API Bhujbal and staff members. Accused was taken in the chamber of DCP
and API and other staff members were asked to leave the chamber. DCP herself and the accused were the
only two persons in the chamber of PW-90. It was asked to the accused by DCP whether the time granted to her for reflexion was sufficient and accused
replied that she needed no more time for reflexion. It was specifically apprised by DCP to the accused
that she was not bound to make the confession and if it is made by her the same would be used against her as evidence. Few more questions were asked by DCP to the accused to know whether she was threatened or promised by anybody to give the confession and
accused spoke that she was not promised by anybody to make approver and she herself decided voluntarily to give the confession. Ex-P-525 is the copy of the
written appraisal in Hindi language made by DCP to the accused that accused was not bound to give the
confession and if same is given then it would be used as evidence against her. DCP then got herself confirmed that accused had decided to give the
confession voluntarily and she thereafter started recording her confession as per her say of the
accused. Confession was scribed by DCP herself in Hindi language and after completing the same it was read over and explained to the accused and she was asked whether it was recorded as per her say and accused replied that the confession was recorded as per her version. Accused signed each and every page of the confession and DCP also counter signed each
and every page of the confession which is at ExP-522A. DCP thereafter recorded certificate at the bottom of Ex-P-522-A to the effect that she was
satisfied that accused voluntarily before her and it was recorded
made confession by her in the
language of the accused and accused admitted to have recorded the confession as per her version. made separate that note below of the confession PW-90 to the of
effect
the
work
recording
confession
accused Fehmida was started at 11.05 hrs. and it was concluded at 18.45 hrs on 24.9.2003. Since the
working hours of the court was over therefore, it was decided to produce the accused before CMM on the next day i.e on 25.9.2003 in the morning session and
till that time arrangement was made to keep the
accused in the lock-up of Ghatkopar police station.
143.
Ex-P-625
is
the
statement
of
the
accused
recorded by CMM at 11.00 hrs on 25.9.2003. In that statement accused Fehmida has clearly stated that she had no complaint of ill-treatment against police and she gave confession before police as per her own accord. She made it clear that her confession was
not obtained by use of any force and inducement and it was true and correct. Statement Ex-P-625 is
signed by the accused
and on the same day CMM sent
the confessional statement of the accused to Special Court under POTA vide covering letter Ex-P-626. It
is stated in the above covering letter that accused was produced before him by API Bhujbal of Chembur police station alongwith one sealed envelope. He opened the sealed packet and thereafter he asked API Bhujbal and escort party to leave his chamber. CMM thereafter called his steno inside his chamber at about 11.20 a.m. The contents of the confessional statement of Part-I and Part-II were read over and explained by CMM to the accused and she admitted to have signed both the statements. Contents of the Part-I and Part-II of confession were read over to the accused by CMM and accused admitted to have recorded it as per her say and contents of the confession were true and correct.
144.
Adv.
Pasbola
Ld.
Counsel
appearing
for
accused no.3 has submitted that after recording the confession of accused no.3 she was not sent to
judicial custody
and this clearly shows breach of
sec.32(5) of POTA, 2002. Special P.P. Mr. Ujjwal Nikam has submitted in this respect that recording of confession of accused no.3 was completed at
18.45 hrs on 24.9.2003 and on the next day i.e 25.9.2003 at 11.00 hrs accused no.3 was produced before CMM. Statement of accused no.3 was recorded by CMM and thereafter accused no.3 instead of
remanding to judicial custody she was given in the custody of API Bhujbal and the special court
remanded accused no.3 to judicial custody on the next day i.e on 26.9.2003. Accused no.3 should have been sent to judicial custody on 25.9.2003 and not on 26.9.2003. There was delay of one day in taking the accused no.3 in judicial custody. It appears that, the Ld. C.M.M. was not aware of position of remanding the accused to the legal judicial
custody after the verification of the confessional statement of the accused was over as per sec.32(5) of POTA, 2002. Ld. Spl.P.P. Mr.Nikam, on this point has invited the attention of the court to the
observation of the Hon'ble Apex court in Parliament Attack Case that non compliance with the judicial custody requirement does not per se vitiate the
confession. In view of this principle I find that taking accused no.3 in judicial custody on 26.9.2003 instead of 25.9.2003 cannot be a circumstance to vitiate the confession.
145.
It is further submitted by Adv. Pasbola that
PW-90 did not ask question to accused no.3 as to why she wanted to give the confession. She was also not asked whether she would like to engage an advocate or keep her relatives or friends present at the time of recording of her confession. Above argument of Adv. Pasbola shows that he did not go through the evidence of PW-90 carefully. PW-90 has stated in
her evidence that it was asked by her to accused no. 3 the reason of her giving confession and accused replied that she saw the dead bodies and injured persons in the television after the bomb blast and therefore she had decided to give the confession. In reply to another question accused no.3 Fehmida
stated that she did not want to avail the facility of engaging advocate or keeping her relatives or friend present in the chamber of DCP at the time of recording of her confession. DCP Mrs.Archana TyagiSharma has taken every care to see that the
confession of
accused no.3 Fehmida is recorded in
free atmosphere.
146.
It
is
further
pointed
out
by
Adv.Pasbola
that while recording the confession the mandatory questions were not asked by DCP (PW-90) to accused no.3 that when it occurred her first to give the confession before police and as to when she was arrested by police and was lodged during her police
custody remand. According to me the above questions cannot be termed as mandatory questions as they do not find place in sec 32 of POTA. Whatever
procedural safeguards are given in section 32 have been followed by DCP PW-90. Not only this some other important questions have also been put by DCP to accused no.3 so that her confession can be recorded in free atmosphere. She was given more than 40 hours time for reconsideration of her decision. Apart
from the oral appraisal accused no.3 was apprised in writing vide Ex-P-525 that she was not bound to give the confession and if she gives the same it would be used as evidence against her. PW-90 has also
maintained contemporaneous record Ex-P-520 to ExP-526 while recording the confession of accused no.
3. Her evidence has not been discredited in her cross examination.
147.
It was further argued that accused no.3 has her confession on 20.4.2004 which is
retracted
placed
on
record
as
Ex-D-8.
It
is
the
case
of
accused no.3 in her retraction that police had been to her house at about 7.30 p.m on 30.8.2003 and they threw her all the household articles outside the house and the family members of accused nos.1 and 3 were driven out of the house and it was locked. Accused Nos.1, 3 and their family members were taken to the office of Bandra Crime Branch where they were questioned. Since accused no.3 could not reply to any of the question therefore she was slapped by the police officer. Her daughter Farheen was threatened
that she would be made to lie on the ice. Accused no.1 was beaten. Police were forcing the accused to act as per their direction. After some days accused
no.3 was taken twice in the office of DCP where her signature was taken on some papers. It is further mentioned in the retraction Ex-D-8 that she was
threatened in the office of Bandra Crime Branch that her son and daughters would also be involved in bomb blast case if she refused to make signatures on the
papers. It is important to note here that accused no.3 in her examination u/sec. 313 of Cr.P.C. has not stated it any is of the above that allegations the contents and of
therefore
clear
retraction Ex-D-8 is the after thought version of the accused which is made only to with a view to falsify the prosecution story.
148. it is
After having assessed the evidence of PW-90 found that she has observed the correct
procedure in recording the confession of accused no. 3. The procedural safeguards given in section 32 of POTA,2002 have also been observed by her. She has also maintained contemporaneous record pertaining to the confession of accused no.3 and her evidence has not been shaken in her cross examination. At the cost of the repetition I say that the evidence of PW-90 Mrs.Archana Tyagi-Sharma inspires confidence of the court and therefore her evidence is reliable.
Confession of Accused No.1 Hanif recorded by Dy.Commissioner of Police Shri Vinod
Lokhande (PW-88) on 24.9.2003 :

149 Accused no.1 Hanif was arrested on 1.9.2003
in connection with C.R.No.235 of 2003 of Ghatkopar Police Station (DCB CID C.R.No.75 of 2003) and he was remanded to police custody by Special Court till 15.9.2003 26.9.2003. Walishetty which was later on extended till
Chief investigating officer Shri Suresh deposed by that accused nos.1 to 3 were
interrogated
him
during
their
police
custody
remand and during the interrogation, accused nos. 1 to 3 and one Nasir were found involved in bomb blast cases. While doing interrogation of accused no.1
Hanif on 4.9.2003, he expressed willingness to give his confession. Therefore, IO Shri Walishetty
apprised this fact to Jt. Commissioner of Police (Crime), Greater Mumbai, who vide his order dtd. 20.9.2003 directed Dy. Commissioner of Police, ZoneX Shri Vinod Lokhande to record the confession of
accused no.1 Hanif.
It is testified by DCP Shri
Lokhande that he received communication to the above effect on 22.9.2003 and on the same day he sent letter to IO Shri Walishetty directing him to
produce accused no.1 Mohd. Hanif in his office on the same day. API Shri Phadake of DCB CID produced
accused no.1 Hanif before DCP Shri Lokhande in his office on 22.9.2003 at 5.00 p.m. It is the evidence of PW-88 Shri Vinod Lokhande that he thereafter
asked API Phadake and other police staff to leave his office keeping accused Hanif alone in the
chamber. He thereafter closed the door of the office and thereby ensured that nobody other than himself and the accused were present in the office.
150
PW-88
Shri
Lokhande
gave
evidence
to
the
effect that accused
was informed by him that he was
no more in the custody of DCB CID. He thereafter made inquiry of the accused asking his name,
parentage and other details. Accused was questioned
whether
he
was
threatened,
tortured,
enticed
or
pressurized by police to give the confession and accused gave reply in the negative. Accused was
asked whether he was promised by police to become an approver or he would be given lesser punishment in case he gave the confession and accused replied in negative. DCP Shri Lokhande spoke that he explained the accused Hanif that he was not bound to make a confession and if he made the same, it would be used as an evidence against him. Even after explaining
to the accused the legal consequences of his giving confession, he did not deviate from his stand. DCP
Shri Lokhande gave 24 hours time to the accused to think over on the point of giving confession and he thereafter directed Sr.PI of BKC Police Station to keep accused no.1 Hanif in the lock-up of their police station under escort. Sr.PI was directed not to allow anybody to see the accused without his (DCP) permission and to produce the accused again before him on 24.9.03 at about 2.00 p.m.
151
It is seen from the evidence of DCP Shri
Lokhande that he interacted with accused Hanif in his mother tongue i.e Hindi language. Questions put to the accused and answers given by him have been recorded in Part-I of the confessional statement which is signed by accused and DCP Shri Lokhande and the same is placed on record at Ex.P-506.
152
DCP
Shri
Lokhande
spoke
that
as
per
his
direction accused was produced before him in his chamber at 2.30 p.m on 24.9.2003 by PSI Bhalerao who was attached to BKC Police Station. He asked PSI
Bhalerao and other police staff to leave his chamber and thereafter DCP Lokhande and the accused remained in the chamber of PW-88. The evidence of Shri
Lokhande discloses that it was ensured by him that except he himself and the accused, there was no other person in his chamber. Accused was asked by
DCP whether the time granted to him was sufficient
for
reconsideration
of
his
decision
to
make
the
confession and accused gave reply in the affirmative and said that he needed no more time for reflection. Accused was again questioned whether he was
threatened, tortured, enticed or promised by the police to make the confession and he said 'no'. He
was again explained that he was not bound to give the confession and if it was given, the same would be used as evidence against him and accused said that he was aware of the above legal position.
After asking few more questions to the accused, DCP Shri Lokhande was convinced that accused Hanif had decided to give the confession voluntarily and
thereafter he recorded the confessional statement of the accused as per his version. After recording the confession it was read over and explained by DCP Shri Lokhande to the accused and accused admitted to have recorded it as per his say. DCP Shri Lokhande
thereafter put his signature below the confession of the accused and obtained signature of the accused on
each and every page and then recorded certificate to the effect that accused Hanif voluntarily gave the confession. made his Evidence of PW-88 shows that he at 19 places and obtained
signature
signature of the accused at 18 places on the second part of the confessional statement which is at
Ex.P-506-A.
153
Gist of the confession of accused no.1 Hanif
is as under: (i) It is stated by accused Hanif that
after leaving college education by him in the year 1982 he worked as Lathe Machine Operator and
salesman at different places. He thereafter got job at Saudi Arabia as catering helper, where he worked till 1984 and returned to India. plying rickshaw on hire in Mumbai. He then started In the month of
June-1985 he got job of helper in a hospital at Bagdad and returned to India from Bagdad in the month of August-1986 and thereafter started doing
work of electrician in Mumbai. He again went Abroad i.e Jeddah on 9.9.92 where he did the job of
electrician till September-1999.
In the month of
August-2000 he started working as electrician in Dubai and after completing contract for two years, he returned to India in the month of September-2002. Since the month of October-2002 he is earning by plying the auto-rickshaw on hire bearing No.MH-02H-2899 which is owned by his brother-in-law.
(ii)
It is stated by accused Hanif in his
confession that when he was working in Dubai he came in contact with Pakistani Nationals i.e Safakat, Abid, Khalidbhai, Samiulla, Bilal and Rehan and two Indians viz: Jahid(PW-2) and Nasir. Accused Hanif
used to see above persons in Masjid at the time of Namaj. There used to be discussion in Masjid about
the atrocities committed on the Muslims in Gujarat. Samiulla showed them CD pertaining to the atrocities on Muslims after Godhra Riot. After viewing the CD,
Hanif said
mere man me gusse ki aag bhdak gai .
(iii)
In the month of August-2002 Hanif,
Jahid and the above Pak Nationals gathered in the house of Nasir at Dubai for taking meal. Thereafter
Pak associates of Hanif motivated Hanif, Jahid and Nasir for doing terrorist acts by exploding bombs at various places in India for taking revenge of Godhra incident. Thereafter Jahid and Nasir responded that
they were ready to act accordingly for which they needed necessary funds and explosives. Abid said them not to worry for Safakat and funds and
explosives. They promised to provide above things to Jahid and Nasir. After discussion it was decided that Hanif, Nasir and Jahid should collectively make effort alongwith bombs their in associates in India places for at The
exploding
prominent
crowded
Mumbai so as to kill maximum number of persons.
above first talk of conspiracy for causing terrorist acts in Mumbai did take place in the house of Nasir
at Dubai in the month of August-2002.
(iv)
Hanif returned India from Dubai in Brother of Jahid was
the month of September-2002. residing in Mumbai.
Hanif delivered him a packet The land-line number of by Jahid to his which home is and each
which was sent by Jahid. Ashrat was given Hanif they to
Hanif
26240267. thereafter
called
Ashrat
frequently
started
meeting
other. Nasir also returned India and in the month of October-2002 he contacted Hanif and said him that he was residing in Sarvoday Nagar, Ghatkopar.
Thereafter 15 to 20 days Nasir again contacted hanif and both planned of exploding time bombs in taxi, BEST bus and trains in Mumbai so as to cause panic in the minds of the people as was conspired in Dubai.
(v)
In
the
last
week
of
the
month
of
November-2002 Nasir came to the house of Hanif and
then Ashrat was also called there.
Nasir disclosed
them that he had brought all the necessary articles of preparing bomb and they would explode bombs in the local train, taxi and BEST buses as per their plan.
(vi)
On 2.12.2002 at about 4.00 p.m Nasir
came to the house of Hanif alongwith one cloth bag which contained bomb made of gelatine sticks, timer and battery. Ashart reached the house of Hanif at 4.30 p.m. The cloth bag containing the bomb was kept on the loft of the house of Hanif. Pointing out the bomb kept in the cloth bag, Hanif said to Ashrat that he would have to keep the said bomb in the BEST bus of route No.312 at SEEPZ Depot. Ashart thereafter left the house at Hanif and 5.15.p.m
alongwith the cloth bag containing bomb so as to keep the same in the BEST bus of route No.312 at SEEPZ Depot. After waiting on the BEST bus stop,
BEST bus of 312 entered in the depot and then Ashrat
with cloth bag in his hand boarded the bus and asked the Hanif to leave the spot. Hanif on the same day
night at 10.30 p.m watched the news on T.V that one live bomb was found in the BEST bus of route No.312. Thereafter Hanif, Ashrat and Nasir came to know In
that bomb kept in the BEST bus was not exploded.
the second week of month of July-2003 Hanif and Nasir had been to Marol to a shop for purchasing prepaid SIM card of Airtel. Nasir purchased the SIM
card in the name of Habib Omar which was bearing No. 9892077831.
(vii)
Nasir and Ashrat came to the house of
Hanif at about 4.00p.m on 27.7.2003 and all the three persons by using gelatine sticks and alarm clocks prepared time bomb for being kept the same in BEST bus of route No.340 on the next day. Ashrat
had been to the house of Hanif in the evening of 28.7.2003. Hanif asked his wife Fehmida to
accompany Ashrat for keeping the time bomb in the
BEST bus of route no.340. exploded at about 21.10
The above time bomb was hrs. resulting into the
death of two persons and 60 persons became injured and property lacs of rupees was damaged. Nasir
thereafter went to his native place at Hyderabad on 29.7.2003. He returned to Mumbai on 16.8.2003 in
red colour Maruti Van and 4 bags were found kept in the dickey of the van and each bag contained 500 gelatine sticks. Nasir directly went to the house
of Hanif at about 10.00 p.m. and kept those four bags of gelatine on the loft of his house. time Nasir said to Hanif that they At that cause
would
powerful blast by using the explosive substances brought by him. On the next day Ashrat was also
called in the house of Hanif and all the three persons planned to cause terrorist acts in Mumbai by exploding bombs in crowded places on 25.8.2003 at Gateway of India and in Zaveri Bazar. Spots of
explosion were fixed by them on 24.8.2003 at Gateway of India and Zaveri Bazar.
(viii)
On 22.8.2003 Nasir and Hanif went Nasir
at Marol to a shop for purchasing SIM Card.
purchased the SIM card of Airtel in the name of Habib Omar and it was bearing no.98902451164. The
said SIM card was handed over by Nasir to Hanif and asked Hanif to discontinue his earlier card. 24.8.2003 Hanif, his wife Fehmida, their On two
daughters and Nasir hired a taxi saying taxi driver that they wanted to see tourist places in Mumbai. On above day Nasir and Hanif fixed a place i.e. Pay and Park site in front to Hotel Taj at Gateway of India, Mumbai for causing bomb blast in taxi at noon time on the next day. Nasir also asked Ashrat to
carry the bag containing explosives in a taxi so as to cause explosion of bomb in Zaveri Bazar at about 1.00 p.m. on 25.8.2003. As per the above plan
accused no.1 Hanif, his wife accused no.3 Fehmida and their both the daughters hired the same taxi from Andheri and airbag containing the time bomb was
kept in the dickey.
Thereafter taxi was taken to
Colaba via Worli Sea-face, Hajiali, Pedder Road and time of 1.00 p.m. was set to the bomb so as to cause explosion in the taxi. Hanif and Fehmida asked the pay and Park site
taxi driver to park the taxi in
in front of Hotel Taj and keep waiting in the taxi till their arrival. Thereafter Hanif and his family
members left the spot and then Hanif contacted Nasir on his mobile no.98902451164. noon time bombs at planted in On the same day at both the taxis of were India
exploded
Zaveri
Bazar
and
Gateway
resulting in the death of several persons and many persons became injured.
154
PW-88 Shri Vinod Lokhande testified that
confession of accused no.1 Hanif was put by him in envelope and envelope was sealed. The sealed
envelope alongwith one covering letter addressed to Chief Metropolitan Magistrate was handed over by him to PSI Shaikh and he was directed to produce accused
and the sealed envelope as well as before CMM. of CMM
covering letter
It is seen from the confidential letter addressed to the Special Court dated
26.9.2003 which is at Exh.P-506-B that accused Hanif was produced before him by PSI Shaikh and a sealed envelope was also handed over to him. CMM
thereafter asked PSI Shaikh and staff members to go outside the chamber and he called his stenographer in his chamber. After opening the sealed envelope
at about 1.45 p.m. on 25.9.2003 he read over the contents of the Part-I of the confession to the accused and accused Hanif admitted that the contents were written correctly and he also admitted his
signature on every page of Part-I of the confession. C.M.M. thereafter read over the contents of Part-II of the confession to accused Hanif and it was stated by accused Hanif that the contents regarding
hatching of the conspiracy in between him, Nasir and Jahid in the house of Nasir at Dubai of committing terrorist acts in Mumbai were not stated by him
before DCP. He has specifically stated that contents from page no.5 onwards starting with the sentence
Mai September 2002 Bharat vapas aate samay..... till the sentence i.e. lane me ek under
construction building ke compound mai taxi ghumakar rokane ko kaha on page no.15 were told by him to
Shri Vinod Lokhande.
155
It was further stated by accused Hanif that
all the contents of Part-II of his confession read over to him on page No.16,17 and 18 were recorded by DCP Shri Lokhande as per his say. It is specifically mentioned in the letter of CMM that accused Hanif admitted of his having made confessional statement before DCP and he further spoke that the same was made by him on his own accord without use of force, threat or any inducement. He admitted the contents of the confession to be true and correct except the fact of hatching conspiracy at Dubai in the house of Nasir. From the letter of the CMM which was
addressed to Special Court dated 26.9.2003 it is clearly seen that all the contents of Part-I and Part-II of confession of accused Hanif was read over by CMM to him and except the fact of hatching
conspiracy in between Jahid, Nasir and Hanif in the house of Nasir at Dubai of doing terrorist acts in Mumbai, all the other contents have been admitted by him. Accused Hanif has admitted his role of
preparing the bombs in his house with the aid of Nasir and Ashrat and keeping the bombs in the BEST bus of route No.312 on 2.12.2002 and in the BEST bus of route no.340 on 28.7.2003. It is also admitted
by him that survey was conducted by him and his associates for planting the bombs in Zaveri Bazar and Gateway of India and after locating the spots, the airbag containing the explosives was kept in the dickey and same was parked on 25.8.2003 in the site of Pay and Park in front of Hotel Taj and taxi driver was asked to seat in the taxi till his
arrival and thereafter at 1.00 p.m. there was blast
in the taxi and several persons died on the spot and many became injured and lacs of property was
damaged.
156
Exhibit-P-623
is
the
statement
of
accused
Hanif which was recorded by CMM, Esplanade, Mumbai in his chamber on 25.9.2003 at about 1.45p.m. This
statement of accused shows that accused Hanif stated before CMM that he had no complaint of ill-treatment against the police. The confessional statement of accused was recorded at his own accord by DCP.
According to the accused some sentences appearing in his confession were not stated by him. It is further stated by accused Hanif that his statement was not obtained by any force, threat or any inducement. Contents of his confessional statement are true and correct except some sentences reference of which is made supra in the letter of CMM addressed to Special Court. Statement Exh.P-623 bears signature of
accused Hanif and CMM.
157
Advocate
Wahab
Khan
Ld.
Counsel
appearing
for accused no.1 Hanif submitted that confession of the accused recorded under sec.32(1) of POTA 2002 is admissible only against the maker and not against the co-accused and this has been observed by Hon'ble Apex Court in para-42 of judgment in State V/s. Navjot Since Sandhu, the reported in 2005 is SCC (Cri) upon 1715. the
above
submission
based
observation of the Hon'ble Apex Court in the above cited case, therefore, it is accepted. It is
further submitted that the minor daughter of accused no.1 which was subsequently discharged was also
arrested by police alongwith accused no.1 and his wife. The minor daughter of accused no.1 was
arrested by DCB CID only with an ulterior motive to put pressure upon accused no.1 Hanif so that he can give confession as desired by the IO. Therefore so called confession of accused no.1 cannot be
considered as his voluntary statement. The above
submission is also not acceptable because accused no.1 Hanif, his wife Fehmida and his both the
daughters travelled from Andheri to Gateway of India in the taxi in which the bag of explosives was kept in the dickey and the same taxi was blown in the blast on 25.8.2003 at about 1.00 p.m. It was primafacie found by IO that daughter of accused no.1 viz: Farheen was also involved in the bomb blast and therefore she was arrested that and and she when was it no she was more was
subsequently connected in
transpired the offence
therefore
discharged as per sec.169 of Cr.P.C.
Accused no.1
Hanif has also admitted before CMM all his overtacts pertaining to his role in the series of bomb blasts. Accused no.1 has disputed some of the
sentences in his confession saying that those were not stated by him. He could have likewise retracted his entire confession before CMM but he did not do so. Accused no.1 Hanif could have stated before CMM that as he was under pressure because of the arrest
of his minor daughter therefore he was constrained to give the confession as desired by the police, but it was stated by accused Hanif in clear terms before CMM that his confession was not obtained by use of force, threat or any inducement. above submission of Adv. Wahab Therefore, the Khan cannot be
accepted as it has no foundation.
158
It is further pointed out by Adv. Wahab Khan
that accused Hanif has retracted his confession by sending letter to the Court which is at Exh.D-7 dtd. 1.4.2004 and therefore such retracted confession
cannot be acted upon.
Special PP Mr. Ujjwal Nikam
submits that accused no.1 Hanif took more than six months time to disown his confession and it was done by him after getting legal advice of his Counsel. Therefore the contents of retracted confession
Exh.D-7 is the outcome of the legal advice received by the accused and therefore said retraction is
liable to be ignored.
159
I have gone through application Ex.D-7 dtd.
1.4.2004 made by accused no.1 Hanif retracting the confession. It is stated in the above application on 30.8.2003 taking
that he returned home at 8.00 p.m. from Mosque. He found police
personnel
search of his house. He asked them the reason of taking search but they gave no reply. He was
handcuffed by one of them. His wife and daughters were taken to the office of Bandra Crime Branch alongwith him. All were asked questions about the
Gateway of India and Zaveri Bazar blasts and they were assaulted. Police Officer Mr.Rakesh Maria
slapped his wife
as a result of which there was His wife and daughters
paining in her right ear.
were taken in Court. As he was not feeling well due to raising of B.P. he was taken in Bhabha Hospital. During police custody remand police officers took his signature on blank papers. When he raised
objection he was threatened by police saying that
his wife and daughters would be made naked in front of him and they would be made to sleep on ice. He
therefore could not reject the demand of the police. On one day he was taken before DCP Shri Lokhande who copied one typed paper in Hindi and asked the
accused to sign the same. Accused was asked that his daughter would be released only after his having made signature on the papers which were already
written. He was later on apprised that his signature was taken on his confessional statement.
160
It is worth to be mentioned here that the
allegations made by accused no.1 in his retraction application Ex.D-7 have not been put by him to IO PW-103 Shri Wallishety in his cross-examination.
Accused no.1 Hanif did not state contents of Ex.D-7 in his examination under section 313 of Cr.P.C. It
is not suggested in cross-examination of DCP Shri Lokhande (PW-88) that he copied down one typed paper and obtained signature of the accused Hanif on that
paper saying that his daughter would be released after his making signature on the hand-written paper i.e confessional statement. Accused no.1 Hnaif was
taken in judicial custody in DCB CID C.R.No.157 of 2002 on 6.12.2003. Thereafter four months he made application Ex.D-7 for retracting the confession. I therefore find force that in accused legal proof made the no.1 submission disowned from form in of his the to his
Spl.P.P.Mr.Nikam confession Advocate after he the
getting gave no
advice in by any
and
substantiate
allegations
him
application Ex.D-7.
161
Accused no.1 Hanif
gave defence evidence as
DW-4. His evidence is silent about his grievance that his wife Fehmida was slapped by police officer Mr.Rakesh Maria as a result of which there was
paining in her right ear.
He also made no whisper
in his evidence to the effect that during his police custody remand police took his signatures on blank
papers
and
on
raising
objection
by
him
he
was
threatened by police that his wife and daughters would be made naked in front of him and they would be made to sleep on ice. At the cost of the
repetition, it is worth to be mentioned that the above serious allegations appearing in Ex.D-7 not been stated by accused no.1 Hanif in have his
examination under section 313 of Cr.P.C. nor in his evidence at Ex.D-102. Accused Hanif spoke in his evidence that he was assaulted by police during his first police custody remand for 14 days. It is a matter of record that after the arrest, accused nos. 1 to 3 were remanded to police custody till
15.9.2003.
After completing first police custody
remand, they were produced before Special Court on 15.9.2003. It is seen from the order of the Special Court passed in Miscellaneous Application No.244 of 2003 (Ex.D-82) in remand application No.35 of 2003 dt. 15.9.2003 that accused nos.1 to 3 were asked by
the court whether they were having any complaint
against police and they answered that they had no such complaint. Accused No.1 Hanif has thus made
baseless allegations against the high ranking police officers in support of his defence. Ex.D-7 is the
outcome of the afterthought version of accused no.1 Hanif with a view to give go bye to his confessional statement which is recorded by PW-88 after following the due procedure.
162
Accused
No.1 that
Hanif he dtd.
has was
admitted read
in
his his
cross-examination confessional
over by
statement
24.9.2003
Chief
Metropolitan Magistrate and the disputed portion in his confession was noted by CMM. statement was recorded by CMM Thereafter his which bears his
signature. When accused no.1 Hanif was under
cross-
examination and while he was admitting his statement recorded by CMM at the same time accused no.2 Ashrat got up in the dock and instructed accused no.1 Hanif to give proper answers after understanding the
questions put to him by Spl.P.P.
My Ld. predecessor
then warned accused no.2 not to interfere with the court procedure. From this event it is revealed that accused conduct no.2 had Ashrat by his above no.1 objectionable Hanif from
restrained
accused
disclosing true facts before the court.
163
Confession
of
accused
no.1
receive
corroboration in all material particulars from the confessional statements of accused nos.3 Fehmida and accused No.2 Ashrat pertaining to the PW-88 no.1 offences who has
registered at four police stations. recorded confession of accused about made
maintained of the the
contemporaneous confession. He
record has
recording
memorandum
below
confession of accused no.1 Hanif (Ex.P-506A) that confession accused was read over and explained to the
and he has admitted to have recorded as per It is also certified by PW-88 DCP Shri
his version.
Vinod Lokhande that he was convinced that accused
no.1 made the confession voluntarily.
PW-88 has
complied with all the procedural safeguards given in sub-section (2) to (5) of section 32 of POTA 2002. Incriminating facts appearing in the confession of accused no.1 about Gateway of India blast are
supported by the testimony of independent witness PW-15 Shri Shivnarayan Pandey. I therefore find that confession truthful. of accused no.1 is voluntary and
164
It is argued by Adv.Wahab Khan Ld.Counsel
appearing for accused no.1 that after recording the confession, accused no.1 was produced before CMM on 26.9.2003 and statement of the accused was recorded by CMM, who had made a note to the effect that substantial part of the confession was disputed by the accused. According to Adv.Wahab Khan, such type of confession looses its sanctity and therefore it cannot be considered by the court. I have gone
through the confidential letter Ex.P.506/B sent by
CMM to the Special Court on 26.9.2003. It is not mentioned by CMM in the said letter that substantial part of the confession was disputed by the accused. From the statement of the accused Ex.P-623 recorded by CMM and from the letter of CMM Ex.P.506-B
addressed to the Spl.Court dtd.26.9.2003 it is found that all the incriminating facts constituting the offences registered at MIDC Police Station,
Ghatkopar Police Station, Colaba Police Station and L.T.Marg Police Station have been admitted by
accused no.1 Hanif. Therefore it cannot be said that the accused has disputed the substantial part of his confession. On the contrary, he has admitted all the
facts constituting
the
offences
alleged
to
have
committed by him.
165 court
Adv.Wahab Khan invited the attention of the to the cross-examination of PW-88 who has
stated that he misunderstood the questions of the cross-examining counsel and whatever answers were
given by him
about the timings were in respect of
accused no.2 and not in respect of accused no.1. According statement to to Adv.Wahab the above Khan, effect PW-88 has made
after
getting
prompting from Spl.P.P.
and therefore evidence of Ld.Spl.P.P. Mr.Nikam
PW-88 inspires no confidence.
submitted that questions put to PW-88 in his crossexamination misunderstood by by Advocate the witness Wahab who Khan has were
recorded
confessions of accused nos. 1 and 2 and therefore he gave answers about the timings pertaining to accused no.2. PW-88 realized his mistake and got it
corrected without any hint by Spl.P.P., therefore this cannot be the circumstance to disbelieve the evidence of PW-88. Fact remains that PW-88 has
recorded confession of both the accused persons i.e accused Therefore regarding no.1 he the Hanif might and have of accused confused the no.2 in Ashrat. timings persons
production
accused
before him.
He has rectified his mistake by giving
clarification. convincing.
Clarification
of
the
witness
is
I am therefore not inclined to accept
the above point urged by Adv.Wahab Khan.
166 did
It is argued by Adv.Wahab Khan that PW-88 not ask the accused while recording his
confession that the confession made by him will be considered under the charges of POTA, 2002 and the same will be admissible under the provisions of POTA and he was authorised to record the confession of accused under section 32 of POTA, 2002. The above
important questions were not put by PW-88 to accused no.1 Hanif and therefore confession of accused no.1 cannot be said to have been recorded properly. There is no substance in the above submission because
questions to the above effect do not find place in any of the sub-sections of section 32 of POTA 2002 and it is already observed by this court the
procedural safeguards given in section 32 of POTA 2002, have been complied with. Therefore, not
putting
the
above
questions
to
the
confessor
by
recording officer cannot be the ground to vitiate the confession.
167 Adv.
Next Wahab
point Khan
stressed is that
by
Ld.defence was
counsel to
there
nothing
obstruct the IO for getting the confession of the accused recorded by Ld. Judicial Magistrate as per section 164 of Cr.P.C. and there is no bar under the POTA,2002 for the same. The above submission is not
sustainable because Section 32 of POTA 2002 is the self contained code of recording the confession of
the accused, Procedural safeguards to be followed by the recording officer are given in sub-section (2) to (5) of section to of avail the 32 , therefore mode there of under is no
propriety confession
general
recording Cr.P.C.
accused
Investigating officer has opted the course provided in POTA 2002, therefore, the above objection
carries no weight.
168
Part-I
and
Part-II
of
the
confession
of
accused no.1 Hanif
disclose that it was explained
to accused Hanif by DCP Shri Lokhande that he was not bound to make any confession and that if he did so, it may of be used as evidence was against in him. the
Confession
the
accused
recorded
language known to him i.e in Hindi language and it was recorded in an atmosphere free from threat.
After recording the confession, accused was produced within 24 hours who before his Chief Metropolitan which is
Magistrate,
recorded
statement
placed on record at Ex.P-623.
Accused Hanif in his On the was not
statement made no grievance against police. contrary he spoke that his statement
obtained by use of force, threat or any inducement. Statement of the accused recorded by CMM on
25.9.2003 which is at Ex.P-623 is signed by accused and counter signed by CMM. Accused made no
complaint of torture before CMM at the hands of
police.
He
was
remanded
to
judicial
custody
on
26.9.2003.
Death of wanted accused Encounter on 12.9.03.
i.e. Nasir in an
169
PSI
Sachin
Kadam
(P.W.1)
was
attached
to
Unit-II of DCB CID in the year 2003. evidence Sabnis, that PSI he and his colleagues
It is his i.e.. PSI
Pawar,
PSI Uttekar, PSI Wani, and by Sr.PI. Dilip
other staff members were called Patil and
they were apprised that a information was
received that the wanted accused in bomb blast case i.e. Nasir is to arrive near Ruparel College in Maruti 800 car which was containing explosives and firearms. On the basis of the above information a trap was laid to apprehend wanted accused Nasir. PI Ahir, PSI Pawar and PSI Sabnis had worn bullet proof jackets, ACP Shri Kamble divided police personnel in two groups.
170
It is stated by PW-1 Sachin Kadam that he
and his colleagues alongwith the informant reached on the spot at 20.50 hours. At about 21.50 hours on 12.9.2003 one Maruti 800 car of blue colour stopped near footpath opposite Rubi Mill. Informant pointed to the driver of the said vehicle saying that it was Nasir. Nasir and other person got down from the vehicle and they started talking with each other and at the same time PI Patil directed police
officers to apprehend Nasir. Nasir and the person accompanied him had taken out their revolvers tucked at their waist and they started firing towards
policemen. It is the evidence of P.W.1 Sachin Kadam that since there was danger to his life and the life of his colleagues, they tried to avoid the bullets fired towards them and in order defend themselves his colleagues started firing towards the two
persons. In the said firing both the persons became injured. PSI Sabnis thereafter contacted mobile van
of Shivaji Park Police Station and after arrival of the mobile van, injured were taken to KEM Hospital where they were declared dead by the doctors.
According to PSI Sachin Kadam, he identified the dead body of Nasir but he was unable to identify the other dead person. After inquiry the name of
other person was found to be Hasan Habib, who was the associate of Nasir.
171. was
Inquest panchanama of the dead body of Nasir prepared. From his pant pocket, one leather
purse was found which contained following articles i.e. cash of Rs.1182/-, credit card of ICICI bank and other credit card of city bank (Pakistan) in the name of Atik-Ur-Rehman, two driving licences having photographs of Nasir, three withdrawal receipts from ICICI bank, three passport size colour photographs of deceased Nasir, one SIM card of Airtel company, one diary in which some of the names were
mentioned, one mobile handset of Nokia of model 3310
having Airtel SIM card and one donation receipt of Rs.1200/-. All the articles were seized vide
panchnama Exh.-P-254 in connection with CR No. 225 of 2003 registered at Shivaji Park Police Station.
172
Two credit cards were found contained in the
wallet which was kept in the pant pocket of deceased Nasir. One of the credit cards was issued by CITY Bank, Pakistan, bearing no. 5081 1751 3642 1014
which was valid up to 06/2003 and it was in the name of Atique-ur-Rehman and other credit card was issued by ICICI Bank, Hyderabad, bearing no. 4731 9662 3917 1259 in the name of Ahmed Sayed Ali Aydee which was valid up to 02/06. Both these credit cards are at Article 70-a and 70-b respectively. It is suggested to this witness in the cross-examination that no such incident did take place on the spot and he has lodged false FIR to that effect at Shivaji Park Police Station at the instance of his superiors.
This suggestion is denied by the witness.
Nothing
has come in the cross-examination of this witness so as to doubt his testimony.
Evidence of Approver P.W.2 Jahid Patne
173
PW 2 Jahid Patne was arraigned as accused At the instance of the IO pardon is tendered to
no.4 in the chargesheet.
and Special P.P. Mr. Nikam,
him as per section 307 of Cr.P.C. and he is then examined as PW-2. deposition of PW2 It that is accused seen no.2 from Ashrat the was
studying alongwith him in Marol Urdu High School at Mumbai. PW-2 has identified accused no.2 Ashrat in court saying that he was his school mate in Marol Urdu High School. Nasir was also known to Jahid. In
this respect Jahid spoke that Nasir is resident of Hyderabad and his school name was Abdul Rehman Ali Aydee. He was also known as Sayed Ali Aydee, Atiqueur-Rehman and Ahmed Sayyed Ali Aydee. According to
PW-2 Jahid, he was in Dubai when Nasir reportedly died in the encounter on 12/09/2003. It is the
evidence of PW-2 that he and Nasir were residing in Dubai and Nasir had shown him credit card of city bank, Pakistan and it was in the name of Atique-urRehman. Article-70/a is the same credit card
which is identified by PW-2 Jahid.
P.w.2 was told
by Nasir that he had been to Pakistan to undergo arms training and training for preparation of bombs.
174
It is testified by PW-2 that when he had
been to Mumbai from Dubai in the month of May 2003 at that time he was shown credit card of ICIC bank, Hyderabad by Nasir and it was Sayyed Ali Aydee. in the name of Ahmed is the same card
Article-70-b
which is identified by PW-2 Jahid and it is bearing no.4731 9662 and 3917 1259. Both came these to credit be cards on
Art-70(a)
Art-70(b)
seized
12.9.2003 from the pant pocket of deceased Nasir. PW-2 Jahid further spoke that Nasir was having two
driving licences (Article-71colly.) one in the name of Abdul Rehman Ali Aydee and second in the name of
Sayyed Ali Aydee and both the driving licences were having photographs of Nasir.
175
It is revealed from the evidence of P.W.2
Jahid that he had gone to Dubai in June-1999 to work as labourer there in Alimco 4 Trading years Establishment. left Dubai He on
worked
for
and
01.10.2003. He used to communicate from Dubai with Nasir at Mumbai P.W.2 on his cell was no. having 9892451164 his cell and no.
9892077831. 5451488
Jahid
at Dubai. According to him, the STD code of
Dubai was 0097150. There is difference of about 1 hours between Dubai timing and India timing. India timing is ahead by 1 hour. It is his evidence that Nasir became known to him since August 2000. He also came in contact with accused no.1 Hanif and wanted accused persons i.e Bilal, Samiulla, Rehman, Aabid
and Naeem. P.W.2 Jahid has identified accused no.1
in
the
Court
sitting
in
the
dock. who
He is
has
also of
identified
accused
no.3
Fahmida
wife
accused no.1. The reason of his identifying accused no.3 Fahmida is that when he had been to India in April 2002 from Dubai, he was asked by accused no.1 Hanif to hand over chocolate parcel to his wife Fahmida and address of his house was given as Marol, Chimat pada, Mumbai. He had accordingly delivered chocolate parcel to Fahmida which was sent by her husband from Dubai.
176
P.W.2 deposed that when he was working at
Dubai, he came in contact with Pak nationals namely Bilal, Samiulla, Rehman, Aabid and Naeem. All these persons used to meet him in Masjid for attending speeches which were followed by Namaj prayer.
According to P.W.2, the persons who used to come in Masjid were addressed speeches regarding the
atrocities committed on Muslims in India and members of the audience were instigated to take revenge of
such atrocities.
177
It
is
testified
by
P.W.2
that
he
joined
Lashker-E-Taiba in the year 2000 as he wanted to take revenge of atrocities on Muslims. Lashker-ETaiba is a Pakistani based terrorist organization established with a view to spread terrorism. It is stated by P.W.2 that the Maulanas in Pakistan, used to address audience in Masjid and C.D.s of such address were played by Samiulla and Bilal in Dubai. After his becoming member of Laskher-E-Taiba he and his colleagues said as to what they were doing in Dubai and they should go to India for doing
something to spread Terror of Muslim religion and the terror was to be spread by causing bomb blast incidents. As a result of this motivation, accused no.1 Hanif and Nasir underwent training for causing bomb blasts. Nasir himself told to P.W.2 Jahid that such training was given to him by Commanders of Laskher-E-Taiba and it consisted preparation of
bombs and handling of firearms.
178
It is seen from the evidence of P.W.2 Jahid
that he had been to India on four occasions from the year 1999 till 01.10.2003. According to him, in the
month of August 2002 he himself, Nasir, accused no.1 Hanif, Samiulla, Bilal, Rehman, Aabid had gathered in the house of accused Nasir in Dubai where they held conspiracy meeting to cause bomb blasts in
Mumbai. His evidence shows that the above plan was executed by Nasir, Hanif (accused no.1) (accused no.2) and Fahmida (accused no.3). Ashraf
179
It is the evidence of P.W.2 Jahid that as
per the conspiracy, the first bomb blast was to be caused at SEEPZ bus Depot in Andheri on 02.12.2002 but the bomb planted in the bus was not exploded and this was informed to him by accused no.1 Hanif. Second bomb explosion was to be caused in Ghatkopar in BEST bus on 28.07.2003 and as per the plan third
and fourth bomb blast incidents were to take place on one and the same day i.e. on 25.08.2003 at Zaveri Bazar and Gateway of India. The above plan was
informed to P.W.2 Jahid by Nasir from time to time. The evidence of P.W.2 discloses that his associates Aabid and others promised that they would provide gelatine sticks, timer and RDX for causing the bomb blasts in Mumbai. Pursuant to the above criminal conspiracy, Hanif and Nasir decided to go to Mumbai from Dubai for causing such terrorist acts. It has come in his evidence that he was informed by Hanif that the plan of causing bomb blast at SEEPZ bus Depot had failed and thereafter he told Hanif to carry the work further. According to this witness, he wanted to convey Hanif to cause big bomb blasts in Mumbai.
180
PW-2 had been to Mumbai in the month of May
2003 to attend the marriage of his brother. It was accused no.2 Ashraf who had come to receive P.W.2
Jahid at Sahar Airport. During that visit, P.W.2 had occasion to see Hanif, Nasir and his other
associates. When he returned to Dubai in the month of July 2003, his associates told him that the
incident like unexploded bomb and small blasts are disappointing and there should be big bomb blasts in Mumbai for which they assured to supply RDX. Such displeasure was expressed to P.W.2 Jahid by his
associates namely Samiulla,Bilal,Rehman, Aabid and Naeem and all these persons were the members of Laskher-E-Taiba.
181
P.W.2 Jahid further spoke that Nasir made
him phone call twice at Dubai from Mumbai at about 9.15 a.m. He received another telephone call from Nasir in the evening at about 5.30p.m on 24.08.2003. Nasir informed P.W.2 through his cell no. 9892451164 that, the work was going on in Mumbai according to the plan. The approximate Indian timing of his
receiving the above calls are 10.45am and 7.00pm. On
25.08.2003 it was informed to P.W.2 Jahid by Nasir that, Hanif and his family members and accused no.2 Ashraf had proceeded on two different spots in
Mumbai for causing bomb blasts and P.W.2 was asked to watch TV news on the night of that day. P.W.2 also informed his associates on phone to watch TV and they all together made call to Nasir on his cell no.9892451164 at 4.30pm (Indian time 6.05pm). After
seeing the news items of bomb blasts in TV, P.W.2 Jahid and his colleagues congratulated Nasir and asked him to thank Ashraf (accd.no.2) and Hanif
(accused no.1) 182 From the evidence of PW-2 Jahid it is
revealed that he returned to India from Dubai on 1.10.2003. know that been to After visiting his house he came to
The officers of Crime Branch, Bandra had his house for making his inquiry.
Immediately on the same day at about 1.00 pm he alongwith his elder brother went to Bandra Crime Branch where chief IO Shri Walishetty made inquiry
of him for two hours and thereafter he was permitted to go to his house. He was again called on the next day for inquiry purposes and after completing the inquiry, he was arrested on 02.10.2003 in connection with C.R.No.235 of 2003 registered at Ghatkopar
Police Station. It is seen from his evidence that during the course of custodial interrogation he
agreed to narrate all the facts pertaining to bomb blasts before the superior Police officers. He was thereafter produced before DCP Shri Dhananjay
Kamlakar (P.W.12) for recording his confession.
183
P.W.12
in
this
respect
deposed
that
he
received letter from Jt.C.P.,Crime dtd.17.10.2003 to record the confession of accused Jahid Yusuf Patane. On 21.10.2003 he directed IO to produce accused
Jahid before him on above day
at 12.30hrs and
accordingly accused Jahid was produced before him on the above day and DCP time by API Phadke of took Crime the
Branch.
P.W.12
Dhananjay
Kamlakar
accused in his chamber and asked escorting party to leave his chamber. After asking some preliminary questions to accused Jahid, Part-I of his confession (Ex.P-264) was recorded by following the procedure. Accused was thereafter given more than 24 hours time for reflection. He was again produced before DCP on 23.10.2003. It is seen from the evidence of P.W.12 that he followed the due procedure given in Sec.32 of POTA, 2002 while recording Part-II of the
confession (Ex.P-264/A) of accused Jahid(PW-2).
184
Accused as
Jahid accused his
Yusuf no.4.
Patani He was was
was
earlier on on
arraigned 01.10.2003
arrested recorded
and
confession
23.10.2003 by DCP P.W.12 Dhananjay Kamlakar. After filing the chargesheet, he was granted pardon by the Court u/s.307 Cr.P.C. on the application of IO and Special approver P.P. as and thereafter For the he is examined reasons, as the
P.W.2.
above
confession of PW-2 Jahid will now be treated as his
previous
statement his
which
can
be
made
use
of 157
to of
corroborate Cr.P.C.
testimony
under
section
It is made clear from the evidence of P.W.2
Jahid that all the facts narrated by him in his evidence find place in his confession dtd.23.10.2003 which is at Exh.P-264/A.
185
Adv. Wahab Khan, Ld. Counsel appearing for
accused no.1 submitted that conduct of IO (P.W.103) in allowing the raises approver to visit his house about on the
01.10.2003
reasonable
suspicion
bonafides of IO. When it is the prosecution case that P.W.2 Jahid was party to the conspiracy of hatching bomb blasts in Mumbai, then how he was allowed to go to his home by IO on 01.10.2003. Kunjuramani, Ld.Counsel appearing for Adv.
accd.no.2
Ashrat has also expressed surprise in allowing P.W.2 Jahid by IO to visit P.W.2 his home was on 01.10.2003 as wanted dtd.
especially accused
when
Jahid
shown
in
Remand
Application
Exh.D-82
15.09.2003. According to me, the above arguments of Counsels of accused no.1 and 2 fall short to raise suspicion about the conduct of IO because P.W.2
Jahid returned from Dubai to India early in the morning of 01.10.2003 and after reaching home he came to know from his family members that Police had been to his house for making inquiry in bomb blast case. He thereafter on the same day at about 1 pm alongwith his elder brother visited the office of Crime branch, Bandra and his inquiry was made for two hours by Chief IO Shri Walishetty. It is the evidence of IO that, the approach of P.W.2 Jahid was cooperative and he agreed to narrate everything in connection with the series of bomb blasts in Mumbai and the inquiry against him was going on, therefore he was allowed to go to his home on same day. As per the direction, Crime Branch, PW-2 Jahid came to the office of Bandra on 2.10.2003 and after
completing the inquiry, it was found that he was party to the criminal conspiracy of series of bomb
blasts in Mumbai and thereafter he was arrested on 2.10.2003. The above justification given by IO of
arresting PW-2 on 2.10.2003 instead of 1.10.2003 is convincing.
186
It is pointed out by Adv. Wahab Khan, Adv.
Kunjuraman and Adv. Pasbola, Ld.Counsels appearing for accused no.1 to 3 that P.W.2 Jahid never visited Dubai and he did not take part in the conspiracy of hatching bomb blasts in Mumbai. Prosecution
therefore could not produce the Passport of P.W.2 Jahid to show that he had been in Dubai at the time of the bomb blasts incident and he returned to India on 01.10.2003. According to SPP Mr.Nikam, there is no substance in above argument as P.W.2 Jahid
produced certain documents i.e. Disembarkation card (Exh.P-267) and work contract executed by P.W.2
Jahid in favour of Alimco Trading Establishment at Saudi Arabia dtd.30.07.2002 to show that he which was is working at in
Exh.P-270(colly)
above
Company
till
he
returned
to
India
on
01.10.2003. Disembarkation card bearing no. 124548 which is at Exh.P-267 bears the seal of Immigration office of Mumbai dtd.01.10.2003. This document
supports the evidence of P.W.2 that he returned to India from Dubai on the above day. Agreement
Exh.P-270 (colly) discloses that it was executed on 30.07.2002 and the duration of the agreement was from 24.06.2002 to 23.06.2005. The agreement bears contract no.A0F3158BG490A and card no. 24731/1. It is submitted by Special PP Mr.Nikam that P.W.2 Jahid has left his job without bothering the legal
consequences of breach of the contract. He came to India on 01.10.2003 as he was repenting for his involvement in bomb blast incidents and above
conduct of the P.W.2 shows that his repentance to crime is genuine and bonafide. Since the above
submission of Ld.Spl.P.P. is based upon documents Ex.P-267 and Ex.P-270, therefore it is accepted.
187
It
is
argued
by
Defence
Counsels
that
Passport is the only legal document to show that a person travelled abroad and returned India. P.W.2 Jahid has stated in cross-examination that passport issued by Regional Passport Authority having the photograph of the passport holder is the document which permits the Indian Citizen to travel abroad and to come back to India. The visa is imposed upon the passport itself. When such passport of PW-2 is
not on record therefore it is submitted that the claim of the PW-2 that he was working in Dubai at the time of bomb blast incidents occurred in the year 2003 and came back to India on 1.10.2003 cannot be relied upon.
188
In
reply
to
the
above
argument
Spl.
PP.
Mr.Nikam has invited attention of the court to the cross-examination of PW-2 Jahid (PW 2/94). PW-2 has stated in his cross-examination that after coming back to India on 1.10.2003 from Dubai he handed his
passport to his father on the same day. Later on he demanded passport to his father, but it was not traceable. He could not get the passport despite the search in the house. He told to his family members
that he will have to deposit the passport in the court as soon of as it is traced/searched. that he had handed Above over
evidence
PW-2
shows
passport to his father and subsequently the passport went missing and inspite of the search it was not traced. There is no ground to disbelieve the above version of PW-2. I therefore hold that non-
production of passport by PW-2 is not sufficient to accept the contention of the defence Counsels that PW-2 Jahid had never gone Abroad i.e at Dubai and therefore there was no question of his returning back to India on 1.10.2003 as the version of PW-2 of visiting supported (Colly). Abroad by and coming back to and India is
documents
Ex.P-267
Ex.P-270
One more important aspect in this respect
which deserves to be mentioned is that the fact of
PW-2 doing job in Dubai in the year 2003 has been admitted by accused statements nos.1,2 and 3 in their and
confessional
Ex.P-506A,
Ex.P-501A
Ex.P-522A respectively.
189.
It is submitted by
Adv.Pasbola that the
evidence of PW-2 Jahid that he came to India to repent cannot be accepted in as much as the moment he was given opportunity to become approver and get pardon, he jumped to it and did not refuse the same. Same point to is also stressed evidence by of Adv.Kunjuraman. PW-2 that he
According watched
him,
the
T.V. Clips of bomb blasts and thereafter he
went to Masjid and disclosed to Maulana Jafar Sahab that he was repenting of for his participation bomb blasts in in
criminal
conspiracy
causing
Mumbai is not reliable because soon after watching of the news it is PW-2 Jahid who congratulated Nasir by making telephone call on his cell in India and also asked him to give thank to accused no.1 Hanif
and accused no.2 Ashrat for their participation in the bomb blasts. It is true that initially PW-2 congratulated accused nos.1 and 2 and Nasir for
their doing terrorist acts in Mumbai as per the conspiracy, but when he frequently saw T.V. clips of the bomb blasts and observed that several persons i.e male and female of both the castes lost their
lives and became injured, he became perturbed and went to Masjid to see Maulana. Maulana spoke him that innocent persons including women, children and aged persons of both the religion are killed in such incidents and bomb blast do not discriminate between Hindus and Muslims and therefore, it is against
their religion. Thereafter he started repenting for the crime committed by him. PW-2 has stated in his
cross-examination that he had discussed with his family members that he was repenting for the crime committed by him. He had also told to the court that jo mere se gunah hua hai uska mai prayaschitta karna chahata hu. He then expressed his
willingness to IO that he wanted to confess the crime committed by him and thereafter his confession came to be recorded by PW-12 DCP Dhananjay Kamlakar on 23.10.2003. In reply to the question asked in
his cross-examination by Adv.Pasbola it is stated by PW-2 that even today he is ready to suffer
punishment which may be imposed upon him for his participation causing in hatching acts in of the conspiracy His of
terrorist
Mumbai.
cross-
examination shows that he did not feel it necessary to engage advocate during remand proceeding because he did not want to escape from the criminal
liability.
190 claims
Adv. Kunjuraman pointed out that PW-2 Jahid to have returned to Mumbai to undergo
punishment for his crime but, after coming to Mumbai instead of confessing his guilt before court he
became approver and got himself escaped from the criminal liability. It is thus submitted by
Adv.Kunjuraman that PW-2 Jahid sent
letter through
jail to Commissioner of Police, Mumbai on 20.2.2004 for begging the pardon and immediately thereafter IO made application of making him approver. It is
therefore submitted that the so called repentance of PW-2 Jahid is not bonafide and IO has used this opportunity to misuse section 307 of Cr.P.C. to
implicate the innocent accused persons in this case.
191
have
gone
through
the
application
(Ex.P-3(colly)) of PW-2 dtd. 20.2.2004 addressed to Commissioner of Police, Mumbai through jail.
Accused has admitted his involvement in all the four offences of bomb blasts occurred at SEEPZ, He
Ghatkopar, Zaveri Bazar and Gateway of India. has expressed
repentance for the sin committed by
him in connection with the bomb blast being member of Lashkar-E-Taiba. disclose conspiracy everything hatched He therefore became ready to pertaining by him and to his the criminal in
associates
Dubai
in
the
matter
of
doing
terrorist
acts
in
Mumbai.
PW-2 Jahid has not prayed for pardon in the
above letter. It is stated by PW-2 Jahid that he never requested either IO or the court that he may be granted pardon on condition of his disclosing everything pertaining to hatching of conspiracy of There is
bomb blasts and execution of the same.
nothing on record to show that PW-2 has made efforts to persuade the IO and PP to become approver so as to avoid the punishment. for the sake the of Even though it is accepted that PW-2 avoided tender to of
argument by
undergo
punishment
accepting
pardon. I find no fault with Spl.P.P. who made him
PW-2 as it is IO and and the above
approver
proposal of the prosecution has been endorsed by the court as per section 307 of Cr.P.C. Thus acceptance of a legal remedy which was made available to PW-2 by the prosecution cannot be a ground to doubt his repentance.
192
The next point urged by Adv. Kunjuraman is
that PW-2 Jahid made no complaint of his Pakistani associates to Dubai police but, he gave evidence against his Indian associates. This shows that
prosecution has played a foul game by making him approver to falsely implicate the innocent accused persons. There is no force in the above submission as PW-2 has made it clear in his cross-examination that he had gone to surrender before Dubai police, but his request of surrender was turned down by Dubai Police saying that the crime was committed in India.
193 PW-2
Adv. being
Kunjuraman approver
has
also
submitted
that
has to
not the of
disclosed hatching same
material of of the doing
information conspiracy
pertaining and
execution
the
terrorist acts in Mumbai. Investigating agency or the prosecution has forced him to adopt the
prosecution story only with a view to implicate the
accused persons in the case. This argument is not sustainable certified in law PW-2 as Special has P.P. has already with the
that
Jahid
complied
conditions on which the tender of pardon was made to him.
194.
Scrutiny of the evidence of PW-2 Jahid make
me to believe that he was party to the conspiracy of doing terrorist acts in Mumbai which was hatched in the house of Nasir in Dubai in the month of
August-2002. Accused No.1 Hanif was also present in the above conspiracy meeting. Confessional
statements of accused nos. 1 to 3 corroborate the evidence given by PW-2 Jahid. He has no ground to
give false evidence against the accused persons as he has no inimical terms with them. Evidence of PW-2 has not been dislodged in his cross-examination. PW-2 Jahid was reported from time to time by accused no.1 Hanif and Nasir about the developments which was being occurred in Mumbai regarding the
completion of their mission of doing bomb blasts in Mumbai. to the I therefore find that PW-2 Jahid was party conspiracy of hatching terrorist acts by
doing bomb blast in crowded places at Mumbai. He has disclosed clear everything the known to him which to him is by made the
from
certificate
given
Spl.P.P. His evidence is therefore found reliable which gets support from the contents of the
confessional statement of accused no.1.
Purchase of Airtel SIM Cards by accused Nasir bearing No.9892451164 and 9892077831:
195.
It is the evidence of PSI Pramod Toradmal
(P.W.51) that accused no.1 on 9.9.2003 disclosed him in presence of panchas that he would show the shop from where he purchased Airtel prepaid SIM Cards of mobile and disclosure statement to the above effect is at Exh.P-274. P.W.3 Rajendra Pawar is the panch
witness of the disclosure statement. and PW-51 PSI Toradmal have
This witness their
identified
signatures on the panchnama (Exh.P-274). According to this witness, he and police persons were taken by accused no.1 Hanif towards a shop viz: Raj It
Electronics which was owned by PW-4 Anil Parmar.
has come in the evidence of PW-4 Anil that he was selling prepaid SIM cards of various companies such as Orange, BPL, Airtel etc. He used to get prepaid
SIM cards of Airtel from the distributor viz: Indu Commercial Corporation, situated at Plot No.8, Shah Industrial Estate, Veera Desai Road, Andheri(West), Mumbai. It is stated by PW-4 Anil Parmar that SIM
card of Airtel bearing No.9892451164 was purchased by him from Indu Commercial Corporation vide
challan/ invoice No.ICC/BCL-D 23239 dtd 31.7.2003 which is in the name of Raj Electronics, Marol and the said delivery challan is placed on record at Exh.P-276. PW-7 Ghanshyam Dubey was working as
salesman in Indu Commercial Corporation and he has
admitted
to
have
signed
the
challan-cum-invoice
bearing No.Ex.P-275 and Exh.P-276.
196
PW-5 Ashok Satra is the owner of Karishma It is testified by him that he was cards which is in his shop at viz: Marol, Karishma Andheri
Electronics. selling SIM
Electronics
situated
(East), Mumbai. He deposed that on 9.9.2003 at about 11.00 hours 4-5 persons had been to his shop and one of them was in veil and other one was police
officer.
The police officer gave him mobile no.
9892077831 and the witness was asked to verify his record and to say whether the SIM card of above number was sold by him. PW-5 Ashok verified the
record and it was found that the above SIM card was purchased by him from Indu Commercial Corporation. It is further stated by this witness that two
persons had been to his shop to purchase the SIM card and after obtaining copy of the driving licence and getting filled in enrollment form, the SIM card
of above number was sold by him.
He has identified
accused no.1 saying that the same person had been to his shop for purchasing the SIM card.
197
It is mentioned in the disclosure statement that PSI accused Toradmal no.1 that Hanif he on 9.9.2003 his
Exh.P-274 informed
alongwith
associate Nasir purchased Airtel prepaid SIM cards bearing Nos.9892451164 and 9892077831 from two shops and those shops were Raj Electronics and Karishma Electronics. At the instance of accused no.1, PW-4
Anil Parmar who is the owner of Raj Electronics produced delivery challan of Indu Commercial
Corporation Exh.P-276 which mentions that SIM card No.9892451164 and other SIM cards were purchased by him from Indu Commercial Corporation and the same was sold by him to one person viz: Habib Omar. Exh.P-280 Prepaid is an Enrollment card form of to Airtel mobile Magic no.
mobile
pertaining
9892451164 and it was purchased by a person viz:
Habib Omar, resident of Shalibanda, Hyderabad. Habib Omar appears to have signed the enrollment form at two places. Accused no.1 Hanif in his defence
evidence (Exh.D-102) has admitted that he was taken by police to some mobile shops in order to verify the purchase of the mobile SIM cards.
198
Accused no.1 in his confession Exh.P-506-A
has admitted that he alongwith Nasir in the month of July 2003 had been to a mobile shop at Marol to Purchase Airtel prepaid card. Nasir while filling the prescribed form mentioned his name as Omar Habib
and he was given SIM card No.9892077831. In
the same confession accused no.1 Hanif spoke that on 22.8.2003 he and Nasir purchased Airtel prepaid card from a mobile shop at Marol and Nasir purchased the card in the name of Habib Omar and the SIM number In
of the card purchased by Nasir was 98902451164.
this respect it is further stated by accused no.1 Hanif that the above SIM card bearing no.9892451164
was given to him by Nasir for his use saying that now he should contact him on the above cell and discontinue his old SIM card. PW-2 Jahid (original
accused no.4 who after tendering pardon is examined as approver) deposed that while he was in Dubai he was using cell No.5451488 and Nasir used to contact him on mobile. Nasir was having two cell numbers
i.e. 9892451164 and 9892077831. From the above oral and documentary evidence it is established that the prepaid SIM cards of Airtel bearing No.9892451164 and 9892077831 were purchased by Nasir in the name of Omar Habib .
Evidence of P.W.15 Shivnarayan Pandey - A Taxi Driver who is alleged to have carried accused nos.1 and 3 in his taxi from Andheri to Scene of offence i.e. Pay and Park lot, Opp. Hotel Taj, Gateway of India on 24.8.2003 and 25.8.2003.
199 PW-15 Shivnarayan Pandey is the most
important witness of the prosecution.
He is the
owner and driver of the motor taxi bearing No.MH-02R-2007. He gave detail evidence with all necessary particulars in respect of explosion of bomb in his taxi at about 1.00 p.m. on 25.8.2003 which was
parked at pay and park lot Opp. Hotel Taj at Gateway of India. His evidence runs into 200 typed pages,
gist of which is as under:
200
It
is
the
evidence
of
PW-15
Shivnarayan
Pandey that he is driving taxi in Mumbai since the year 1982. He is having R.C.Book, insurance, permit
and fitness certificate of the taxi and all these documents are produced on record at Art-1 colly. He drives the taxi for carrying passengers on hire at day time and on night time the taxi is hired by his friend Rammani Mishra.
201
PW-15 is residing at Kandivali and he used He used to to
to park his taxi below Andheri Bridge. come daily in a local train from
Kandivali
Andheri from where he is plying the taxi on hire. On 24.8.2003 at about 10.30 a.m., he had parked his taxi at Andheri Opp. Ambar Oscar Cinema Hall. One
person approached
and asked him that he wanted to
hire his taxi for whole day to see tourist places in Mumbai i.e Hajiali, Hanging Garden, Aquarium,
Gateway of India and Rani Baug.
PW-15 quoted fare bargaining
of Rs.700/- for the whole day and after fare was fixed to Rs.600/-.
The said person sat in
the taxi on the front side beside the driver and asked him to take the taxi to the end of Azad Galli where one bearded person alongwith two women and one small girl aged about 4 years got into the taxi rear side. at
The description of the person who took
seat beside the driver is given by PW-15 as a person aged about 25 to 30 years having height of 5.9'' with whitish complex of medium built.
202
It has come in the evidence of PW-1 PSI
Sachin Kadam that wanted accused Nasir was killed in
the
encounter and
near one
Ruparel wallet
College, his
Matunga pant two
on
12.9.2003 containing
from
pocket driving One
some
articles
including
licences were seized under panchanam Ex-P-254.
of the driving licences was in the name of Mr.Abdul Rehman Ali Aydee s/o Ayesha Sayyed Ali and second driving licence was in the name of Sayeed Abdul Rehman. PW-2 Jahid was knowing Nasir who was doing
job in Dubai. According to PW-2 Jahid Nasir was resident of Hyderabad and he underwent arms training and training of preparation of bombs in Pakistan and he was having 4-5 names i.e Abdul Rehman Ali Aydee, Sayyed Ali Aydee, Atique ur Rehman and Ahmed Sayyed Ali Aydee. Both the above driving licences which
are part of Art-71 (Colly.) and one election card Art-72 in the name of Abdul Rehman bearing No.KGY 2919066 were shown to PW-15 Shivnarayan Pandey and after observing photographs in the above articles it is stated by his taxi PW-15 that the same person had hired
for Rs.600/- on 24.8.2003. This evidence
of PW-15 lead me to conclude that it was deceased Nasir who had hired taxi of PW-15 on 24.8.2003.
203
At the instance of Nasir, PW-15 had taken
his taxi towards Azad Galli on 24.8.2003. Pointing out towards accused nos.1 and 3 in the dock it is stated by PW-15 Shivnarayan that the same persons alongwith two girls sat in the rear side of his taxi at Azad Galli. PW-15 thereafter started taking his taxi towards Colaba. On the way he was required to take the taxi at Sidhivinayak Temple, Hajiali,
Chowpaty and Aquarium so as to enable the passengers to see the above tourist places. Taxi was further
taken towards Regal Circle, Shahid Bhagatsingh Road, Bhid Bhanjan Temple and to Arthur Bunder Road. Nasir asked PW-15 whether he could park the taxi in the compound of Taj Hotel to which he denied. Thereafter PW-15 was paid Rs.200/- and he was asked to park Pay and Park lot opposite Hotel
the taxi in the Taj.
Passengers then left the taxi saying PW-15
that they would come back shortly.
204
Taxi was parked in parking lot in front of
Hotel Taj at about 1.30 p.m. Thereafter 45 minutes approximately passengers (Nasir, accused no.1 and 3 and their both the daughters) came there and they left the spot for lunch and came back at 2.15 p.m. Taxi was thereafter taken out from the parking lot by making payment of parking charges of Rs.10/- by
PW-15 to PW-16 Kartik Pradhan. It was PW-16 Kartik Pradhan who issued parking receipt (Ex.P-316) on behalf of M.C.G.M. Pay and Park Scheme, Taj Circle, Gateway of India to PW-15 for his having parked taxi bearing No.2007 on 24.8.2003 in between 10.35 a.m. to 2.15 p.m. Taxi was thereafter taken towards Azad Galli via V.T. According to PW-15 he left the
passengers
at the corner of Azad Galli, Andheri at
about 3.30 p.m. and the person sitting beside him in front seat (i.e Nasir) made him towards balance fare. payment of Rs.400/-
Evidence of taxi driver
PW-15
shows
that
the
above
passengers
(Nasir,
Accused nos.1 & 3 and their two daughters) travelled in his taxi from 10.30 a.m. to on 3.30 the p.m. on
24.8.2003.
Passenger
sitting
front
seat
(Nasir) asked PW-15 to bring his taxi in Azad Galli at 10.00 a.m on the next day for seeing tourist places.
205
It is revealed from the evidence of PW-15 Pandey that on the next day i.e on
Shivnarayan
25.8.2003 he took taxi in Azad Galli at about 10.00 a.m. where accused no.1 (a person having beard who was sitting on the rear side in the taxi on the earlier day )came there alone who asked taxi driver to take the vehicle inside the compound was of the on.
building
where
construction
going
Thereafter five minutes a lady with two girls and the above person came there with a gray colour
airbag.
He asked PW-15 to open the dickey of the The said person
taxi for keeping the above air bag.
lifted the bag and carefully kept it in the dickey, but dickey could not be closed properly. PW-15 asked him to keep the air bag on the top of the taxi in the carrier, but he told that the bag contained valuable articles and therefore it was not proper to keep it on the carrier of the taxi. spanner and jack as well as gas Stepany, wheel, cylinder were
already kept in the dickey of the taxi and therefore there was no sufficient place for keeping the
airbag. The person having beard (accused no.1) gave consent to PW-15 to keep spanner, stepany and jack inside the taxi so that the airbag can be neatly
kept in the dickey. Dickey of the taxi was locked after having kept the airbag therein. The person
having beard thereafter left the taxi for making phone call at about 10.15 a.m. and returned back within 10 minutes. He occupied the front seat beside driver (PW-15) and his wife and daughters sat in the rear side. They asked PW-15 to take the taxi towards Gateway of India. When taxi was being taken to
Gateway
of
India
person
known
to
PW-15
viz.
Ramchandra Gupta (PW-20) was seen coming from front side and he was called by PW-15 Shivnarayan Pandey. The passenger (accused no.1) sitting in the taxi on
the front seat beside PW-15 told taxi driver not to waste time by indulging in discussion with PW-20 Ramchandra Gupta and said him to go fast to the
place where the taxi was parked on the earlier day. He was repeatedly telling articles were kept in PW-15 that his valuable gray colour bag and
the
therefore PW-15 was asked not to leave the taxi. Taxi was taken to the parking lot in front of Hotel
Taj where attendant (PW-16) of Pay and Parking lot issued parking receipt at about 12.40 hrs bearing no.566 (Ex.P-312A - counter foil of the receipt) which bears date as 25.8.2003 and taxi number as 2007. PW-16 Kartik has stated in his evidence that sometimes number of he the does not write for want full of registration time and
vehicle
therefore
receipt
Ex.P-316 and Ex.P-312/A mention
taxi number as 2007.
He was asked as to why the
time of departure was not noted in parking receipt Ex-P-312/A and the witness replied that since there was there blast in the above taxi on 25.8.2003 therefore was no question of mentioning time of
departure in receipt Ex.P-312/A.
206
It is deposed by PW-15 that after parking
his taxi at parking lot at about 12.45 hrs he had been to nearby urinal to attend natures call. he was informed articles by his customers in the that gray Since their colour
valuable
were
kept
airbag which was put in the dickey, he was reluctant to go to urinal. He thereafter paid Rs.10/- to the
attendant of the parking lot and asked him to look after his taxi and then went to attend call of the nature in 'Sulabh Shauchalaya'. Distance in between
parking lot and 'sulabh shauchalaya' was near about 150 to 200 feet. When he came out of 'sulabh sound of big
shauchalaya' at that time he heard
explosion as a result of which he felt that his both the ears turned deaf. He sat down on the ground and
after sometime he went towards parking lot where his taxi was parked.
207
It is deposed to by PW-15 that he could not
find his taxi on the parking place as there was smoke all around. His taxi was found lying 30 to 32
feet away from the place where it was parked and it was completely damaged. Demeanour of the witness is recorded making by the court of to his the effect that taxi, while PW-15
description
damaged
started weeping in the witness box.
After sometime
he spoke that he saw some dead bodies around the taxi and others were fighting for their lives. thereafter came to the lane behind Hotel Taj. sat at one place for near about 45 minutes He and by
keeping both the eyes closed.
When he found that he
was able to walk, thereafter he approached Colaba Police Station where he narrated the entire
incident. PW-15 has pointed out towards accused no.1 Hanif and accused no.3 Fehmida in the dock saying that both the accused persons travelled in his taxi on both the days and he further said that it was accused no.1 Hanif who had kept his airbag in the dickey of the taxi on 25.8.2003. Accused no.3
Fehmida was in veil
in the dock.
She was asked to
remove her veil and she was later on identified by PW-15 saying that the same lady travelled in his
taxi on 25.8.2003 and she was wearing salwar-kameez with punjabi dupatta. PW-15 has thus identified
accused
nos. 1 and 3 in the court.
208
PW-15
deposed
about
test
identification
parade which was held in Mumbai Central Prison on 6.10.2003. He claims to have attended TIP in the above jail on 6.10.2003 at 12.00hrs and identified He is
accused no.1 out of 14 persons in the row.
suggested in the cross-examination that no TIP was held in Mumbai Central Prison on 6.10.2003 and he
did not identify accused no.1 in the said TIP and this suggestion is denied by PW-15. was examined under sec.313 of Cr.P.C. the court on the above point and Accused No.1 (Ex.P-615) by
he gave reply to
question no.315 that he was identified by PW-15 at the instance of police. During cross-examination
taken by Adv.Wahab Khan on the point of TIP it was said by PW-15 in that dummies the were looking almost
identical
age
and
age
was
approximately
30-35-40. Out of the dummies 9 to 10 were having beard. There was only one door to the identification room and that room had no transparent grill. The above cross-examination of PW-15 has strengthened his evidence on the point of TIP.
209 on
After attending TIP in Mumbai Central Prison 6.10.2003, District PW-15 was later on summoned no.3 to was
Byculla lodged.
Prison
where
accused
TIP of accused no.3 was held on the above
day for which 6 ladies were selected as dummies and
out of those ladies, accused no.3 was identified by PW-15. It has come in the cross-examination of the
witness that he identified lady accused by pointing out the finger. There were in all seven ladies in and the height of The witness about was the
the row including the accused almost further all the ladies Ld. was 5'.
asked
by
defence
counsel
source of his information about the arrest of the lady accused i.e. through news paper, T.V. or any other media and witness replied that he had gone to his native and in his village there is no T.V., news paper and he also does not have radio. The examination of the witness shows that crossthe lady
accused was standing in the row Sr.No.5. that
in the parade at
PW-15 is suggested by the defence counsel he attended TIP nor he identified
neither
accused no.3 in the parade and this suggestion is denied by the witness. In the examination of the accused u/sec. 313 of Cr.P.C. (Ex.P-617) it is
stated by accused no.3 Fehmida in reply to question
no.316
that of
she
was
identified There is
by
PW-15
at
the in the
instance
police.
thus
variance
between the above suggestion given to PW-15 and statement of
accused no.3 made in her examination
under sec. 313 of Cr.P.C.
210
Shivnarayan Pandey (PW-15) has stated that
he was called to Colaba police station on 3.1.2004 at 4.45 p.m. There was one table in the room and
6-7 photographs of male persons were spread on the table, out of which the person he identified the photograph of
who sat in his taxi on front side beside It was
him to come to Colaba from Andheri on 24.8.2003. is thus seen by from his evidence in the that Nasir
identified
PW-15
above
photo
identification parade.
It is already concluded by that
this court relying upon the evidence of PW-15
the person sitting on the front seat of the taxi bearing No. MH-02-R-2007 beside the driver from
Andheri to Gateway of India on 24.8.2003 was Nasir.
211
Regarding the bomb blast incident occurred
at Gateway of India at about 1.00 p.m on 25.8.2003 accused persons have tried to make out the case the cross examination of PW-15 that the in
blast
occurred at Pay and Park lot opp. Hotel Taj at Gateway of India was due to the explosion of the gas cylinder in the taxi of PW-15 and this suggestion is obviously denied by taxi driver Shivnarayan Pandey. This witness is asked question in his cross-
examination that he had fitted sub-standard CNG kit in his taxi from unauthorised person which resulted in its explosion at about 1.00 p.m on 25.8.2003 and this suggestion is denied by PW-15. In this
connection Spl.PP. Mr.Nikam has invited attention of this court to C.A. Report (Ex.P-540 colly) and the evidence of PW-94 ACP Shri Suresh Sonar who deposed that the articles seized from the blast place at Gateway of India vide panchanama Ex.P-318 consisting the pieces of cylinder which was fitted in the taxi bearing No.MH-02-R-2007 were sent to C.A. office for
analysis
on
27.8.2003
vide
forwarding
letter
Ex.P-539 and C.A. Report to the
above effect is at
Ex.P-540(colly). It is seen from the C.A. report Ex.P-540(colly) that the articles i.e metal pieces, rubber pieces, metalic wires, debris, cloth pieces etc. were examined in Forensic Science Laboratory, Vidyanagari, Mumbai and the result of the analysis is that RDX (Cyclotrimethylene Trinitramine)
alongwith petroleum and Hydrocarbon oil was detected on the seized articles. to It is also opined by
Asst.Chemical
Analyzer
Govt.
Forensic
Science
Laboratory that looking at the site of bomb blast it is evident that the high explosive was used. Thus the defence of the accused persons which is put in
the cross-examination of PW-15 that the explosion was the result of the blast of CNG kit fitted in the taxi is negatived. Accused persons have failed to mention the above specific defence in their
examination u/s. 313 of Cr.P.C. 212 Adv. Wahab Khan Ld. counsel appearing for
accused no.1 has submitted that the examination-inchief of PW-15 was recoded in piecemeal and it was not taken at one stroke. This situation is continued so far as every witness is concerned and it was done deliberately so as to enable the prosecution to
allow its officers to tutor the witnesses.
I have
gone through the evidence of PW-15 Shri Shivnaryan Pandey which was commenced on 26.10.2005 and on
that day examination-in-chief of the witness was recorded 15 pages. On the above day the witness was feeling uncomfortable and he was looking here and there with the tension and he was found unable to speak. Considering the above state of health of the
witness, the hearing was adjourned on the next day. Examination-in-chief of the witness was concluded on 27.10.2005. Since Adv.Wahab Ld. counsel appearing for accused nos.1 and 4 was absent on the above day therefore the witness could not be cross-examined by him. Adv. Kunjuraman appearing for accused no.2 was absent. Adv. Pasbola appearing for accused nos.3 and
made
application
on
above
day
to
summon
the
witnesses of Print and Electronic Media and to defer the evidence of PW-15 till the summoned witnesses are examined. After hearing the prosecution and the Ld. defence counsel my Ld. the Predecessor above passed
exhaustive
order
rejecting
application
Ex.D-51 made on behalf of accused nos.3 and 5 and the cross-examination and it was actually on was commenced on
28.10.2005 8.11.2005, 10.11.2005.
continued and it
29.10.2005, concluded on
9.11.2005
The evidence of PW-15 is running into
200 pages therefore same was bound to record it in piecemeal. It is seen that except one long
adjournment the evidence of PW-15 was recorded on day-to-day basis and it is the accused persons who by their application evidence. Ex.D-51 tried to defer
recording of
I therefore find no force
in the above submission of Adv. Wahab Khan. 213. Counsel It of is further urged that by the Ld. gave defence evasive
accused
no.1
PW-15
reply in his cross-examination so far as receipt of Rs.5 lacs is concerned from Shivsena Party. It is therefore submitted that this witness is not telling the truth and on that count his evidence is not believable. There is no material on record to accept the above argument. Witness has fairly admitted in his cross-examination that he received reward of Rs. 5 lacs from Shivsena Party through cheque. Therefore the witness cannot be blamed that he gave evasive reply on the above point.
214
It is also urged that PW-15 in whose taxi the blast occurred has not lodged any
allegedly
complaint at Colaba Police station even though he saw the blast with his naked eyes and no explanation in this regard to is me tendered the above has by the prosecution. is stated the not in
According sustainable
argument clearly to
because
PW-15 he
cross-examination
that
reached
police he was
station at 2.00p.m. soon after the blast and
in
the
police
station
till
to
10.00p.m.
His
statement was recorded within two-three hours of the incident. FIR Ex.P-309 of C.R.No.206 of 2003
registered at Colaba Police station regarding the bomb blast at Gateway of India shows that the
incident did take place at 13.05 hrs and information regarding the blast was given to Colaba Police
station by police constable Camillo Reis buckle No. 27423 at 13.10 hrs. Since this information was first in point of time therefore it was treated as FIR.
After making report of the bomb blast incident by police constable Camillo Reis, there was no question of lodging complaint or report by PW-15. Statement of PW-15 was recorded within 2-3 hours of the
incident by Colaba Police Station. no force in the above submission.
I therefore find
215
It is submitted by Mr. Wahab Khan that the
statement of PW-15 Shivnarayan Pandey was recorded by PI Shelar (PW-93). He has invited attention of
the Court to section 51 of POTA 2002 and pointed out that the investigation in POTA case has to be
carried out by the officer of the rank of Deputy Superintendent of Police or a police officer of an equivalent rank. Since PI Shelar was not of the
above rank therefore there is non compliance of the mandatory provisions of law which vitiates the
investigation. In support of this submission he has pressed into service the observations of the Hon'ble Apex Court in a case State Inspector of Police, Vishakhapatanam Versus Suryashankar 2007 ALL MR (3) 555 SC. In the above cited case respondent was in
the service of South Eastern Railway who was later on promoted as Senior Commercial Inspector and then Chief Commercial Inspector. the Trial Court under of He was held guilty by committed of offence of
having 13(2)
punishable
section
Prevention
Corruption Act, 1988.
Appeal preferred by him was
allowed by the High Court of Judicature of Andhra Pradesh at Hyderabad and the matter was carried to
Hon'ble Apex Court by the State Government by filing criminal appeal bearing no.1335 of 2004 which stood dismissed appeal on 24.8.2006. twofold. Points First involved was in the
were
one
whether
investigation carried out by PW-41 was legal or not and the other point was about the validity of the sanction Section accorded 17 of the by PW-37. Second of proviso of
Prevention
Corruption
Act,
1988 provides that an offence referred to in clause (e) of sub-section (1) of section 13, shall not be investigated without the order of a police officer not below the rank of Superintendent of Police. It
was admitted by PW-41 in his evidence that he had not filed authorisation letter from S.P. CBI for registering the case and carrying out the
investigation.
The Hon'ble Apex Court observed in
Para 16 of the judgment as under: The approach of the learned Special Judge, to say the least, was not correct. functionary passes an order, When a too
that
authorising a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must
act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept The is
unknown in administrative law.
statutory duty to pass
functionaries are enjoined with a written orders
216
The Hon'ble Apex Court in Para-21 of the
judgment observed as under: It is true that only on the basis of the illegal investigation a proceeding may not be
quashed unless miscarriage of justice is shown, but, in this case, as we have noticed hereinbefore. The respondent had suffered miscarriage of justice as the investigation made by PW-41 was not fair
Sanction accorded by PW-37 was also found without
jurisdiction and therefore the Hon'ble Supreme Court pleased to dismiss the appeal.
217
The facts and circumstances of the case in
hand are entirely different from the facts in the above cited case. In the case in hand, there were twin bomb blasts in Mumbai on 25/08/2003. After
receipt of the information of the bomb blast at Gateway of India PW-92 Vinodkumar Sharma, who was working as ACP of Azad Maidan Division rushed to the spot as ACP of Colaba Division in whose jurisdiction the bomb blasts occurred was on leave.
218
PW-92 noticed a crater having dimension of
3.5 feet to 4 feet and 1 feet to 1.5 feet depth, near the parafit wall of the sea. Articles having He also
stains of blood were found scattered there.
noticed damaged cab on the place of incident. He was directed by DCP of Zone-I of to carry out the
investigation.
Complaint
PW-14
Raes,
police
constable was recorded by him and on that basis an offence officers was to registered. conduct He directed the police of the
inquest
panchnamas
deceased persons and to take the injured to St. George Hospital, GT Hospital and Bombay Hospital. Panchnama of scene of offence was prepared by PW-92 himself. were Sample of stone, soil, pieces of metal Pay and Park receipt book was
collected.
seized from PW-16 Kartik.
Rexine pouch which was
found in front seat of damaged taxi bearing no.MH02R-2007 was seized. Certain other steps were also
taken by him and he then recorded the statements of witnesses. PW-15 Shivnarayan Pandey attended the
police station and he then directed PI Shelar to record his statement. PI Shelar has also stated
that statement of PW-15 Pandey was recorded by him as per the direction of ACP Sharma.
219
Initial
steps
in
the
investigation
were
carried out by ACP Sharma who was kept incharge of
Colaba Division for three days.
He alone could not
carry out the entire investigation therefore, he was required to give direction to PI Shelar to record the statement of PW-15. As per the directions of Joint CP (Crime) On 10/09/2003, PW-103 Shri
Walishetty who was posted as ACP (Detection-I) in North West Region, carried out the entire
investigation pertaining to DCB CID CR NO.157/02, 75/2003, 91/2003 and 86/2003 and after concluding investigation filed chargesheet on 05/02/2004.
220
In the present case the entire investigation
was carried out by PW-103 Shri Walishetty who was posted as ACP (Detection-I). Due to constraint of
time PI Shelar was directed by ACP Sharma to record the statement of PW-15 Shivnarayan pandey.
Therefore it cannot be said that the investigation into the case was carried out by PI Shelar. In fact, entire investigation was done by ACP Shri Walishetty PW-103. Thus, the learned defence Counsel cannot
derive any assistance from the above decision of the Apex Court.
221
It is argued that accused no.1, his wife and
their two daughters would not have taken risk by sitting planted. in the taxi in which explosives were
Therefore the evidence of PW-15 inspires Spl.PP
no confidence on the point of probability.
Mr.Nikam has submitted that time was set to the bomb as 1.00 pm which was planted in the dickey of the taxi of PW-15 therefore there was no risk at all
for accused no.1 and his family members to travel in the above taxi from Andheri to Gateway of India till 12.45 hrs. When friend of PW-15 viz. Ramchandra
Gupta was seen coming from front side at Gateway of India and PW-15 started talking with him at that time it was accused no.1 Hanif who directed PW-15 not to waste time as accused no.1 wanted that the bomb should explode gave at desired place. to Spl. the PP.
Mr.Nikam
thus
fitting
reply
above
argument of Adv. Wahab Khan.
222
Adv.
Pasbola
Ld.
counsel
appearing
for
accused no.3 has urged that the evidence of PW-15 regarding the identification of accused no.3 in TIP is doubtful and unreliable. The above submission
is liable to be rejected as it has come in the cross-examination of PW-15 taken by Adv. Pasbola that PW-15 had a talk with the passengers in the taxi (accused nos.1 and 3 and their daughters) on 25.8.2003 near Siddhivinayak Temple. In this respect the witness has made clear in his evidence that while taking the taxi to Colaba, on the way near Siddhivinayak Temple the person sitting beside him said that he was suffering from head-ache and he wanted to have medicine. Taxi was therefore taken to Century Bazar at the junction where fire brigade vehicles were standing and there was one medical shop where taxi was stopped. The person sitting
beside him went to purchase the medicine and came
back
and
thereafter,
the
taxi
was
taken
towards
Colaba. This fact also find place in the confession of accused no.1 Hanif (Ex.P-506/A) and accused no.3 Fehmida (Ex.P-522A). This shows that there was
sufficient time for PW-15 to see and interact with accused nos. 1 and 3 who were in his company even on the earlier day for near about five hours. PW-15 had occasion to observe the accused nos.1 and 3 on
25.8.2003 for more than three hours. PW-15 has no inimical terms with accused nos.1 and 3. Nothing has come in the cross-examination of PW-15 that he has any Axe to grind against accused nos.1 and 3. There is thus absolutely no scope for false identification of accused nos.1 and 3 by PW-15. After having
examined the evidence of PW-15 from all find his evidence reliable and trustworthy.
angles I
Communication
in
between
slain
terrorist
Nasir and Approver PW-2
Jahid.
223
It
transpires
from
the
evidence
of
PW-6
Manoj Patil that he was working as Senior Executive in Airtel Co. in the year 2002. He deposed that if
someone wants to contact Dubai by telephone one has to dial initial digit as 009714 followed by landline phone number of Dubai (U.A.E.) and if one wants to contact to Dubai on mobile he has to dial initial number as 0097150 followed by mobile phone number.
He also spoke that if someone wants to contact from Dubai to Mumbai on mobile, one has to dial country phone number as 0091 followed by mobile phone
number. 224 PW-6 Manoj Patil being a Sr. Executive of
Airtel Co. has admitted his signature on the call details of cell No.9892451164 and 9892077831 which bears the certificate of authorized signatory to the effect that the said information of incoming and outgoing calls of the said mobile numbers were
recorded automatically in the computer.
Printouts
of the above cell number were taken out from the
computer of the Airtel company and the call details are at Ex.P-284(colly) and Ex.P-285(colly). It is
evident from the testimony of PW-2 Jahid that there is difference of about 1 hours between Dubai timing and India timing. The India timing is ahead than
Dubai. It is revealed from the evidence of PW-2 that Nasir had made phone calls to Dubai from Mumbai twice. The first call was made at about 9.15 a.m. and he also received call from Nasir in the evening at 5.30 p.m. Nasir informed him that work was going on according to the plan. It is also stated by this
witness that Nasir contacted him on 24.8.2003 from cell No.9892451164. It is mentioned in the call
details of cell no.9892451164 Ex.P-284 (colly) that Nasir from his cell No. 9892451164 contacted on cell no.00971505451488 at Dubai on 24.8.2003 at about 10.48 hrs and there was conversation in between them for 22 seconds.
225
The evidence of PW-2 discloses that Nasir
informed him at Dubai at 9.30 a.m. that Hanif and his family and Ashrat had proceeded at two different spots according to the plan and he was asked to watch T.V. in the evening on 25.8.2003. Call one
details Ex.P-284(colly) show that there was
outgoing call from calling No.9892451164 to called no.00971505455488 on 25.8.2003 at 10.59 a.m. the testimony of PW-2 to the above effect Thus gets
corroboration by the recital in the call details which is at Ex.P-284 (colly). It is also revealed from the evidence of PW-6 and from call details Ex.P-284(colly) that from 22.8.2003 till 25.8.2003 there were total 8 outgoing calls from cell no. 9892451164 to cell no.5451488 at Dubai. On 25.8.2003 the outgoing call on the above cell number was at 10.59.22 a.m. and SMS was also made from cell no. 9892451164 to Dubai No.5451488. It is thus
established that Nasir maintained contact with PW-2 Jahid for giving time-to-time information about
their mission on earlier day (24.8.2003) and on the
day of twin blasts (25/8/2003) in Mumbai.
Identification of accused no.1 Hanif by the witnesses in the TIP held at Mumbai Central Prison on 6.10.2003.
226
Now I turn my attention to the evidence of
TIP dtd. 6.10.2003 which was held by PW-18 Shri Madhukar Bodke. The sum and substance of evidence of PW-18 is that on 2.10.2003 he was served letter Ex.P-321 requesting him to hold TIP in Mumbai
Central Prison of accused no.1 Hanif and accused no. 2 Ashrat on in 6.10.2003. Mumbai He accordingly at remained p.m.
present
Central
Prison
12.30
After making inquiry with the members of the public, two panchas were selected from them. He was shown identification room by the jailer and he got it confirmed that the place in which the witnesses were sitting room. was 20 not visible from the with identification the suspected
dummies
resembling
persons were produced by the jailer, out of which 12
were
selected.
Both
the
accused
i.e
Hanif
and
Ashrat were taken in identification room and they were asked to take their place in the row of
dummies.
Witnesses
were
asked
whether
they
were
shown photographs of the suspects prior to parade and they gave reply in the negative. Suspects were asked that they could change their clothes if they desired but, they declined. Initially, PW-15
Shivnarayan Pandey was taken in identification room and he was asked to view the parade and identify the suspect. After viewing the parade PW-15 identified accused no.1 Hanif by pointing out finger and reason of identification given by PW-15 is noted in the memorandum Ex.P-323. Thereafter second witness Nafiz Ahmed was called in identification room who has
identified both the accused persons. It is seen from the evidence of PW-18 that he has followed the
correct procedure of holding TIP as laid down in the Criminal Manual.
227 PW-15
I have already held that the evidence of Shivnarayan Pandey regarding the
identification of accused no.1 in the TIP is found reliable as he had ample opportunity to observe
accused no.1 for more than 7-8 hours on both the days i.e on 24.8.2003 and 25.8.2003. Now I turn to assess the evidence of other two witnesses viz.
PW-19 Nafiz Ahmed Khan and PW-20 Ramchandra Gupta so far as their identification of accused persons is concerned.
228
PW-19 Nafiz Ahmed Khan is a businessman and
he is having garment factory at Andheri Juhu Lane, Samta Nagar, Near Gausiya Kirana Store, that on
Andheri(West), Mumbai.
It is his evidence
25.8.2003 at about 10.00 hrs he was standing outside his factory as the tempo loaded with goods was to reach to his factory at relevant time. rickshaw parked near his factory He saw one despite the
congestion of the road.
The rickshaw driver had
taken out one big size airbag of gray colour and he was followed by two ladies and one girl. PW-19
claims to have asked rickshaw driver that he should have parked the rickshaw elsewhere and he replied that he was proceeding towards house of his friend Ashrat who was residing nearby. PW-19 asked
rickshaw driver to park the rickshaw by the side of the road so that there would be no obstruction for the tempo which was to arrive shortly with the
goods.
229
PW-19 spoke that after reaching tempo to the
factory it was unloaded and then he left for Surat by Ahmadabad Passenger Train from Andheri at 12.45 p.m. and returned back at about 8.00 pm on
27.8.2003.
After reading news paper and watching
T.V. on 28.8.2003 he came to know that there was bomb blasts at Gateway of India and Zaveri Bazar, Mumbai on 25.8.2003 and the taxi driver was
survived. He also read statement of taxi driver in
the news paper that he had taken passengers from Azad Lane, Andheri, towards Gateway of India. PW-19 therefore raised suspicion about the person carrying airbag with him on 25.8.2003 at about 10.00 a.m. and who with two ladies and one girl alighted from the rickshaw. PW-19 thereafter reported the above fact to Colaba Police Station.
230
Detail
description
of
the
person
carrying
airbag and the ladies accompanied him is given by PW-19. According to him the person carrying airbag was about 45 years old and the girl was 18 to 19 years old and the lady accompanied him was near about 35 years of age. The lady was having round
face with whitish complexion and pointed nose and her height was 5'.2'' or so. PW-19 has identified accused no.1 in the dock.
231
The above witness was subjected to piercing He could not tell the
cross-examination.
registration number of the auto-rickshaw which was parked in front of his factory on the above day. It
may be noted that PW-19 had been to Surat on the same day and returned back at 8.00pm on 27.8.2003. The news of bomb blast at Gateway of India was already flashed on the same day on T.V. and next day in came the news paper. Witness however says that he to know about the bomb blast occurred at
Gateway of India on 28.8.2003.
It is important to
note here that when the entire world was made known about the occurrence of bomb blasts at Gateway of therefore the
India and Zaveri Bazar through T.V. evidence
of PW-19 that he only came to know about
the bomb blasts at Gateway of India and Zaveri Bazar on 28.8.2003 is not reliable. This witness spoke in
his examination-in-chief that he came to know about the bomb blasts through news paper on 28.8.2003 but in cross-examination it is stated by him that he learnt about the above incident on 27.8.2003. He has further admitted in cross-examination that he had
watched the news in T.V. on 25.8.2003 and 26.8.2003 regarding the blasts occurred on 25.8.2003. This
shows that he came to know about the blast on the very same day. Thus the evidence given by PW-19
about the knowledge of the bomb blast is discrepant and therefore it is not reliable.
232
Cross-examination of PW-19 shows that he had
been to Surat to buy the goods of Denim Fabrics but he did not get the goods as per his requirement. He even did not meet the person from whom he was to purchase the goods. He has admitted that he has no evidence to show that he had been to Surat on
25.8.2003.
233 goods
It is the case of PW-19 that one tempo with was unloaded in his garment factory on
25.8.2003. In this respect witness has stated that he used to make entry in the note-book about the receipt of the goods. He used to maintain record
from Monday to Friday destroyed. Witness
and then the record was to be has stated that it was not
possible for him to produce any document to the receipt of the goods in his
pertaining factory on
25.8.2003.
234
PW-19
made
statement
in
the
cross-
examination that he wrongly spoke before police that he had taken train at Andheri at 1.45 p.m. to go to Surat on 25.8.2003. In this respect he has already stated in his examination-in-chief that he got the train at Andheri to go to Surat on 25.8.2003 at 12.45 p.m. It is thus seen that the version of the
witness is not consistent.
235
From the evidence of PW-19
it is clear
that he had occasion to see two ladies and one girl following 25.8.2003. rickshaw PW-19 driver might across his factory the on
have
observed
above
persons for half or one minute but he gave detail
description
about
the
airbag
possessed
by
the
rickshaw driver and the height, complexion and about the pointed nose of the lady who followed the
rickshaw driver. PW-19 had no sufficient occasion to observe accused no1. and his family on 25.8.2003 at about 10.00 a.m. Therefore I find substance in the argument of Adv. Wahab Khan and Adv. Pasbola that the evidence of PW-19 about the accused no.1 and 3 is doubtful. identification of After having made
deep scrutiny of the evidence of PW-19, I find that his testimony has been and completely shaken in his is
cross-examination
therefore
his
evidence
found not trustworthy.
236.
PW-20 Ramchandra Gupta is examined on the
point that he had identified accused nos. 1 and 3 in the TIP dtd. 6.10.2003 held at Mumbai Central Prison and Byculla District Prison by Special Metropolitan Magistrate Shri Madhukar Bodke. was Ramchandra Gupta
having his Bhelpuri stall behind Hotel Taj on
Mahakavi Bhushan Marg which is on the left side of Regal Cinema. This witness and PW-15 Shivnarayana as the native of both is
Pandey know each other Uttar Pradesh.
According to him PW-15 Shivnarayana
Pandey used to visit his Bhelpuri stall for eating panipuri and bhel.
237
It is stated by PW-20 Ramchadnra that there
was Shravani Somwar on 25.8.2003 and therefore at about 12.15 hrs he was going towards Bhid Bhanjan Mandir which is situated at the junction of Shahid
Bhagatsingh Road and the road leading towards Hotel Taj. While walking on the footpath of Arthur Bunder Road near Syndicate Bank at about 12.35 hrs. he saw that one taxi was halted and one male passenger siting on front seat got down and two ladies and one girl also got down who were sitting at rear side. He thereafter heard voice from taxi as Guptaji . He
thereafter saw his friend Shivnarayan Pandey coming towards him from the taxi. Thereafter both had chit-
chatting and at the same time the passenger who got down from the front seat of the taxi told
Shivnarayan Pandey that he should take the taxi to pay & park area at Gateway of India. passenger was insisting Pandey to go The said early to
parking place near Gateway of India. this Ramchandra Gupta also told
After hearing to go
Mr.Pandey
early as his passenger was insisting. Thereafter PW-20 Ramchandra Gupta went towards Bhid Bhanjan Mandir. When he reached near Regal Cinema, he heard He then saw police vehicles
big sound of explosion.
were proceeding towards the scene of offence. He then came to know that there was explosion of bomb at Gateway of India.
238. Arthur
According to PW-20 he was required to attend Road the Jail at 12.30 p.m He on 6.10.2003 to to
identify
accused
persons.
claims
have
identified a bearded person from amongst 14 persons standing in the row. On the same day at 4.00 p.m.
he remained present in Byculla District Prison and in the parade he identified one lady out of seven. The cross-examination of this witness reveals that out of 14, seven persons in the parade were having beard. He has not made it clear as to which
particular bearded person was identified by him. He gave no evidence to the effect that the person
identified by him was asked his name by PW-20 and the said person stated his name as Hanif . He also
gave no evidence that the lady identified by him was asked her name and she said her name as Fehmida .
PW-20 had occasion to see the passengers in the taxi of PW-15 only for one or two minutes and none of them had any talk with PW-20. Normally, a person
while going on foot cannot observe the passengers travelling in the vehicle except some unusual
incident takes place. PW-20 had only causal glimpse towards the passengers in the taxi and on that basis it is hardly possible to identify same passengers after the gap of 40 days. The evidence of PW-20 so
far as
his having talk with PW-15 Shaivnarayan
Pandey after his parking taxi near Syndicate Bank is found reliable, but his evidence on the point of identification of accused no.1 and 3 in the TIP held on Mumbai Central Prison and Byculla District Prison on 6.10.2003 is not believable. I therefore discard his testimony on the point of identification of
accused nos.1 and 3 in the TIP.
Identification of Accused no.3 Fehmida in T.I.P. dtd. 6.10.2003 held at Byculla District Prison.
239
PW-18 Special Metropolitan Magistrate gave
evidence about the holding of TIP of accused no.3 in Byculla District Prison at about 4.00 p.m on
6.10.2003. one door
It is stated by him that there was only to identification room from where the
persons siting in the witness room could not be visible. The panchas who remained present in Mumbai Central Prison for the TIP of accused nos. 1 and 2
became accused
ready no.3
to in
act
as
panchas
for
the
TIP
of
Byculla
District
Prison.
Jail
officer Mr.Sonavane produced 13 women as dummies out of which 6 were selected which were similar to the face of accused no.3. Witness Shivnarayan Pandey entered in identification room who was asked to view the parade and to identify the woman accused. After viewing the parade he has identified accused no.3 by pointing out his finger who was standing in the row in between dummy nos.4 and 5. disclosed her name as Fehmida. Accused thereafter Since this witness
had sufficient opportunity to observe accused no.3 on 24.8.2003and 25.8.2003 for more than 7-8 hours therefore his evidence about identification of
accused no.3 in TIP cannot be doubted.
240
According to PW-18, Nafiz Ahmed Khan(PW-19)
has also identified accused no.3 Fehmida in the TIP who was standing in between dummy nos.2 and 3. reason for identification given in The
memorandum
Ex.P-324 is that the same lady had alighted from the auto-rickshaw in front of the shop of PW-19 on
25.8.2003. It is already held by this court that PW-19 had no proper opportunity to observe accsued no.3 Fehmida on 25.8.2003 and therefore his evidence on the point of her identification in TIP is not reliable.
TIP of accused nos. 1 and 2 held at Mumbai Central Prison on 8.10.2003.
241
It was Special Executive Officer Shri Sudhir
Surve, who held TIP of Accused nos.1 and 2 in Mumbai Central Prison on 8.10.2003. Shri Sudhir Surve
(PW-59) deposed that he received letter Ex.P-414 requesting him to hold TIP of accused nos.1 and 2 in Mumbai Central Prison and accordingly it was held on 8.10.2003. He reached MCP at 11.00 hrs on the above day. Two panchas were selected from the public. It
Witnesses were Manoj Patil and Dilip Masharam.
was ensured by him that the witnesses could not be seen from the place where the identification parade was to be held. Suspects were brought by jailer and jailer was also asked to arrange for 18 dummies resembling the looking of the suspected persons. Out of 18, 12 dummies were selected by PW-59. Suspects
were asked to stand in the row of the dummies. The first witness who entered in the identification room was Manoj Patil. identification Prior to his entering into the the suspects were asked to
room,
change the clothes if they desired. Witness Manoj Patil was asked whether photographs of the suspects were shown to him and he gave reply in the negative. After viewing the parade PW-60 Manoj Patil
identified both the suspects i.e accused no.1 Hanif and accused no.2 Ashrat. It is stated by PW-59
Sudhir Surve that the
reasons given by PW-60 Manoj
Patil about the identification of the suspects have been mentioned in the memorandum Ex.P-415.
242
Thereafter PW-62 Dilip Motiram Mashram was
taken in identification room and after viewing the parade accused no.2 Ashrat was identified by him for the reasons given in the memorandum. Now, I proceed to assess the evidence of above two witnesses
pertaining to their identification of the suspects. 243 PW-60 Manoj Patil is a building contractor.
On 2.12.2002 he had been to the office of MIDC, Andheri for his work. After completing the work he
was to proceed towards Santacruz and therefore he came to SEEPZ Bus Depot at about 5.30 p.m.
Thereafter 5 to 7 minutes BEST bus of route No.312 arrived at the bus stop and the passengers were standing in the row to enter in the bus. It is stated by this witness that two persons who were standing in the row in front of him were chitchatting with each other. He requested them to
proceed further. Out of the two, one person turned at him and said that if he was in hurry he should
have hired a cab. Then both the persons started
talking to each other and the other passengers in the row became disturbed. The person who was holding the bag boarded the bus and who handed over the bag left the row without boarding the bus.
244
It is further testified by PW-60 that after
boarding the bus it was noticed by him that the person holding the bag took rear side seat of the left side of the bus. PW-60 also got the seat beside him. There was some altercation in between the
person holding the bag and the conductor on the point of change of money.
245
After reaching home PW-60 received message
that his uncle was serious at his native place at Tasgaon, Dist, Sangli. On the same night he
proceeded Tasgaon by bus and returned back in the morning on 4.12.2002. He read news in the news paper about the bomb blast occurred at Ghatkopar and one unexploded bomb was found in bus route no.312. PW-60
said that he immediately remembered the incident of altercation in between one passenger and conductor occurred in bus of route no.312. to MIDC police the station and Then he proceeded gave This information witness was
regarding
above
incident.
summoned to attend TIP held at MCP on 8.10.2003. According to him out of the 14 persons standing in the row he identified accused nos.1 and 2. important to note here that the It is of
reasons
identifying accused nos.1 and 2 have neither been stated by PW-60 Manoj Patil nor by SEO Shri Sudhir Surve in their evidence. The evidence of identifying witness PW-60 Manoj is thus vague and therefore such vague evidence cannot be relied upon. I therefore
discard his testimony for the above reasons.
246
PW-62 Dilip Motiram Mashram was the BEST bus
conductor and he was on duty of BEST bus route No. 312 on 2.12.2002. It is deposed by him that BEST bus bearing registration No.MH-01 H-8765 was halted at
SEEPZ
Bus
Depot
at
route
no.312.
Thereafter
commuters boarded the bus in a queue and nothing took place at the time of commuters boarding the bus. It is denied by him that while commuters were
boarding the bus he was standing on the rear side of the gate of the bus and quarrel was going on in between commuters in his presence. Since this
witness has completely resiled from his previous statement he has been cross-examined by Spl.P.P. PW-62 has denied to have identified accused no.2 Ashrat in the TIP held on 8.10.2003. The evidence of this witness is therefore not useful to the
prosecution.
Identification of accused nos.2 and 3 in the TIP held on 1.10.2003 at Mumbai Central Prison by PW-46.
247
PW-52 Shri Waman Sapre, a Special Executive
Officer held TIP of accused no.1 to 3 on 1.10.2003 at Mumbai Central Prison. PW-52 Waman Sapre deposed
to the effect that he received letter dtd. 30.9.2003 requesting him to hold TIP of accused nos.1 to 3 in Mumbai Central Prison. The date of holding TIP was fixed by him on 1.10.2003. He accordingly visited Mumbai Central Prison on the above date. He selected two panchas from the public and dummies resembling to the looking of accused nos.1 to 3 were also selected from undertrial prisoners. He inspected the identification room and it was found that it was not visible from the room where the witnesses were made to sit. He asked dummies to stand in a row and
thereafter asked the suspects to take their position in the row. they He made inquiry by with the the suspects to the
whether
were
shown
police
identifying witnesses prior to the parade and they replied in the negative.
248
PW-52 deposed that identifying witness Shri
Anil Vishwakarma was taken in the identification room by one of the panchas and he was asked to
identify
the
suspects.
PW-46
stated
that
he
identified one male person out of the 14 persons in the row and one woman was identified out of 7 female in the row. He gave no evidence to the effect that names of such persons (male and female) were asked by SEO Shri Waman Sapre and the witness gave their names as Ashrat and Fehmida. Even though this
witness has identified accused dock but he gave no
nos.2 and 3 in the reasons of their
identifications. On this sole ground his evidence cannot be taken into consideration.
249
Anil
Mulchand
Vishwakarma
(PW-46)
is
the
Carpenter residing at Shivkrupa Society, R.No.304, Pant Nagar, Ghatkopar, Mumbai. had gone to Andheri (East) According to him he for doing work on
28.7.2003 and started returning back to home at 8.00 p.m. by BEST bus of route no.304. BEST bus was full
of passengers when it was boarded by him at Andheri (East). He however found one seat vacant on the last
bench at rear side.
He sat by the side of the
window. At that time one man and woman entered in the bus. The said woman requested him to have a seat near window side. He therefore accommodated the
couple by giving them window side seat. They were having bag and the said bag was kept by them beneath the seat of the bus. When the bus proceeded further
thereafter sometime the said person started pushing him and then PW-46 said him maro and the person replied Bhaisab dhakka mat tere akeleki bus nahi
hai . The talk in between them increased gradually and the woman then beg him pardon saying maph kijiye galati ho gai . bhaisab
Then the man and woman
alighted at Marol Naka stop leaving the bag beneath the seat.
250
After sometime PW-46 got the front seat
and
thereafter he heard sound of big blast from back side of the bus. He alongwith other passengers got down from the bus and he then came to his house. It
is his testimony that he was feeling like deaf as he was unable to hear therefore he was admitted in Rajawadi Hospital as indoor patient and was given
treatment for 10 days. His statement was recorded by police on 29.10.2003 in the hospital itself. Witness has pointed out towards accused no.2 Ashrat in the dock saying that it was the same person who was travelling in the BEST bus alongwith one burkha clad woman on the day of the blast. Accused no.3 was
asked to remove veil from her face and thereafter she was also identified by PW-46 saying that it was the same lady who travelled alongwith accused no.2 in the BEST bus on 28.7.2003.
251
Ex.P-389 is the memorandum prepared by PW-52
Shri Waman Sapre regarding the identification of accused nos.2 and 3 by PW-46 Anil Vishwakarma. reasons given the by identifying two witness PW-46 The of are
identifying
above
accused
persons
recorded in the above memorandum.
252
It is stated in the memorandum Ex.P-389 that
on 28.7.2003 at about 9.00p.m. one person and female in veil were alighting hastily from BEST bus of route no.340 at Marol Pipeline stop. At that time
PW-46 was pushed by them and on that count there was altercation in between the said person and the woman and PW-46. Evidence of PW-46 is silent on the said incident of altercation and pushing of PW-46 by the couple while alighting at Marol bus stop. There is
thus material discrepancy in the recitals of the memo Ex.P-389 and the evidence of PW-46. Evidence of PW-46 lacks in material particulars. His evidence is completely vague and therefore it can hardly be
relied upon. I therefore place no reliance on his testimony.
253
Ex.P-391
is
the
memorandum
prepared
by
Special Executive officer Shri Waman Sapre of the parade held on 11.10.2003 at Mumbai Central Prison
and
Byculla
District
Prison
regarding
the
identification of acused no.2 Ashart and accused no. 3 Fehmida by PW-54 Dilip Wankhede. It is seen from the memo that accused no.2 Ashrat was not identified by PW-54 but accused no.3 Fehmida was identified by him by touching to her body who was standing in between dummy nos.2 and 4. It is therefore necessary to go through the evidence of identifying witness PW-54 Dilip Wankhede.
254
PW-54
bus
conductor
deposed
that
on
28.7.2003 at about 8.15 p.m. he himself and the bus driver took the bus of route no.340 at Andheri where commuters boarded the bus. There were in all 59 commuters in the bus. From the starting one lady in veil occupied the right hand last seat in the bus and when the bus reached at Asalpha bus stop the said lady was not found in her seat. Thereafter there was blast in the bus and in the said blast he became unconscious and he regained consciousness in
Rajawadi Hospital. He was required to take treatment in Rajawadi Hospital for 22 days. This witness has stated in clear terms that he will not be able to identify the lady accused if shown to him. He is
also unable to give the description of the lady accused. According to him, he attended TIP in
Byculla District prison on 11.10.2003 but he could not identify the lady accused. Since the witness has failed to identify accused no.3 Fehmida either in TIP or in court therefore his evidence is hardly of any use to the prosecution.
Identification of accused no.2 in the T.I.P. held on 9.10.2003 at Mumbai Central Prison by PW-28 and PW-30.
255 (PW-41) Special Executive Officer Shri Dushyant Oza deposed that he received letter Ex.P-363 on
5.10.2003 requiring him to hold TIP of accused no.2 in Mumbai Central prison. PW-41 thereafter decided to hold the parade on 9.10.2003 and apprised ACP
Jedhe and API Parab accordingly. He reached Mumbai Central Prison at about 12 hrs. He thereafter
selected two panchas from the public. He requested jailer Shri Jagavar for making arrangement of
dummies. Out of 18, 12 dummies were selected who were having similar features with the suspects. Both the suspects were taken in identification room and they were asked to stand in the row of dummies. Thereafter witness room Dilip by Yagnik was taken in
identification
panch
Rajesh
Kachariya.
Witness was asked to identify the suspect out of the 14 persons standing in the row. Witness Dilip
Yagnik after viewing the parade touched the person who was standing in between dummy nos.4 and 5 and he was accused no.2 Asrhat. The reason given by the witness for identification of accused no.2 Ashrat is noted in the memorandum. Thereafter witness viz. Harish Popat was taken in the identification room and he was asked to identify the suspect out of the 14 persons standing in the row. PW-30 Harish Popat
pointed out a person who was standing in between dummy nos. 9 and 10 and his name as Arshad. was prepared by the said person disclosed
Memorandum to the above effect Executive Officer Shri
Special
Dushyant Oza which is at Ex.P-192. In the light of the above evidence to make of PW-41 Dushyant of the Oza it is of
necessary
scrutiny
evidence
identifying witnesses i.e PW-28 Dilip Yagnik and PW-30 Harish Popat.
256
Dilip Yagnik was serving in STD booth of
Kantilal Jain which was situated at 5, Vitthalwadi, Zaveri Bazar, Mumbai-2 and it is at the distance of three minutes by walk from Mumbadevi temple. He
deposed that there were three instruments in his STD booth bearing No.56389009, 22419096 and 56250089. He alone was working in the STD booth from 9.00a.m. to 5.00p.m. On 25.8.2003 at about 12.15 p.m. one person came in his booth and made call to one Nasirbhai saying Maine Mumbadevi mandir ke paas taxi me mal
bhara hai.
Thodi der me kam ho jayega .
The said
person gave currency note of
Rs.10/- to PW-28 as he
was not having change. He was asked to obtain the change from nearby shop. He again came back after 5-7 minutes and asked the witness to retain currency note of Rs.10/as he did not get the change.
According to the witness, the person calling was aged about 25 to 26 years of fair complexion, slim built and his height was 5'. PW-28 pointed out towards accused no.2 Ashrat sitting in the dock and said that he was the same person who had come to his booth on 25.8.2003 at 12.10 hrs for calling Nasir. It is stated by this witness in clear terms that accused no.2 talked to Nasir on the telephone
instrument of UGS Co. having No.56389009.
257
P.W.28 gave evidence to the effect that at
about 1.00p.m. on 25/08/2003 he heard loud explosion and therefore he closed the shutter due to the fear. Persons in Zaveri Bazar were proceeding towards
Mumbadevi
Temple.
He
immediately
called
to
his
employer and apprised him
about the blast and said Above evidence of
that he was closing the shop.
PW-28 is well corroborated by the recitals in call report of cell no. 9892451164 which is at Ex.P-284 (Colly). It is already held by this court that the above cell number was being used by wanted accused Nasir who is now no more. It is revealed from
Ex.P-284 (colly) that on 25.8.2003 at about 12.13.49 p.m. caller contacted to cell No.9892451164 from the instrument of PCO bearing number 2256389009 and the conversation in between the caller and called party was 89 seconds. The time of communication deposed to by PW-28 in between caller and Nasirbhai is at 12.15 hrs. and the time mentioned in the call details Ex.P-284(colly) is 12.13.49 p.m. Thus the ocular testimony given by PW-28 is fully substantiated with all necessary particulars by the document
Ex.P-284(colly). The testimony of PW-28 does not stand discredited in his cross-examination. It is
worthwhile suggested
to in
note his
here
that
the on
witness behalf
is of
cross-examination
accused no.2 that he joined service at STD booth since last three months in order to join in this case as a false witness. The said ridiculous
suggestion is denied by the witness. It is thus proved that accused no.2 Bazar area at noon time Ashrat had been in Zaveri on 25.8.2003 prior to
occurrence of the blast and apprised wanted accused Nasir at about 12.13p.m. that taxi was parked by him near Mumbadevi Temple with the goods loaded
therein and work will be done shortly. conduct of accused no.2 shows his
The above act of
overt
causing explosion of bomb in Zaveri Bazar area in pursuance of the conspiracy.
258
PW-29 Kunjbihari Pandey is having Bidi shop Pan shop
and PW-33 Kutty Manappa Shetty is having
at Dhanji Street Naka, Mumbai. They deposed that quarrel was going on in between pedestrians and
motorcyclists at about 6.00 p.m. on 24.8.2003.
They
heard quarrel from the distance of 300 meters of their shops and thereafter both went to the place
of quarrel. One motorcyclist and two pedestrians were quarreling each other. The pushed uttered words pedestrian who was
Nasirbhai Gandabhai Andha Ho
Gaya kya, samanewala Admi koi dikhata nahi kya . The person who was on the bike said him thena tum kya karega . gali mat kaun
The pedestrian replied
kiska kya karega yah tumako kal dopahar ko malum padega . Thereafter driver of the motorbike and the
pedestrians indulged in scuffle and it was subsided by PW-29 and PW-33. Thereafter those persons left the spot. On the next day at about 1.00 p.m. there
was blast in the taxi. In the above blast many persons lost their lives and several persons became injured. The witnesses therefore recollected that the pedestrians on who the were earlier quarreling day in with the
motorcyclist
the
evening
might have involved in the blast. Both the witnesses
were required to attend Mumbai Central Prison on 9.10.2003 to identify the suspect. the persons standing in the After viewing both the
parade,
witnesses identified accused no.2 saying that the same person in was the present evening in of the quarrel at which Dhanji
occurred
24.8.2003
Street, Mumbai.
259
The
cross-examination
of
PW-29
discloses
that he went to the place of quarrel within 2-3 minutes. The pedestrians and not that gave threat was was only asked given to in to
motorcyclist
others. the
PW-29
cross-examination
threat
motorcyclist and the said threat had no relation with the incident of bomb blast. Witness gave reply that it was the job of police to find out the
relation and he had merely informed to the police whatever happened. He has further stated that it
was his first time to report the incident of quarrel to police. Except PW-29 Kunjbihari Pandey and PW-33
Kutty Manappa Shetty, no other shopkeepers went to the spot to subside the quarrel. The quarrel of pedestrians with motorcyclist is alleged to have taken place in the evening of 24.8.2003 and accused no.2 was identified by both the above witnesses in the TIP held on 9.10.2003 as a person with the motorcyclist. The said quarreling was a
quarrel
routine matter and therefore there was no special reason for the above witnesses to identify no.2 after the gap of 45 days. The accused two
above
witnesses are having Bidi and Pan shop at Dhanji Street in Mumbai. Their evidence that they left the shops to subside trivial quarrel which was going on at a distance of 300 meters inspire no confidence. I am therefore not inclined to give any weight to evidence pertaining to identification of
their
accused no.2 in the TIP held on 9.10.2003.
260
Both the above witnesses have spoken to have the photographs of Nasir in photo
identified
identification parade held on 3.1.2004. According to defence counsel Adv. Wahab Khan, the provision of holding identification of person on the basis of photograph given in Sec.22 of TADA Act is held in
violative of Art-21 by the Hon'ble Supreme Court
a case Kartar Singh V/s State of Punjab 1994 CRI. L.J. 3139. Majority view of the Hon'ble Supreme
Court on the above point is as under:
Majority view the
If the evidence regarding on the basis of
identification
photograph is to be held to have the same value as the evidence of a test
identification parade.
Gross injustice to
the detriment of the persons suspected may result. Therefore, S.22 would be liable to be struck down being violative of Art.21 .
261
In
view
of
the
above
observation
of
the
Hon'ble Apex Court,the evidence of both the above witnesses on the point of identification of photo of deceased Nasir in photo identification parade held
on 3.1.2004 cannot be considered as submitted by Adv.Wahab Khan, Ld.Counsel appearing for accused no. 1.
Confessions of Accused nos. 1 to 3
262
It
is
transpired
from
the
confession
of
accused no.1 Hanif that while he was doing job at Dubai he came in contact with Pak Nationals i.e Shafakat, Abid, Khalidbhai, Samiulla, Bilal and
Rehan and Indian Nationals i.e PW-2 Jahid and Nasir. Hanif returned India in the month of September-2002 and Nasir came back to India in the to month reside of in
October-2002. Dubai.
Pw-2
Jahid
continued
While returning to India, PW-2 Jahid gave a
letter to Hanif directing him to hand over the same to accsued no.2 Ashrat. Accused no.1 thereafter
contacted Ashart as his phone number was already made known to him by Jahid which is 26240267. contacting
Accused
no.1
Hanif
thereafter
started
Accused no.2 Ashart frequently.
Nasir, Ashrat and
Hanif often used to meet each other in the house of Hanif from October-2002. All the above three
persons held meeting in the house of Hanif at about 5.30p.m. on 29.11.2002 and they again met at the same place on 2.12.2002. Nasir had come to the
house of accused no.1 Hanif at about 4.00 p.m. on 2.12.2002 alongwith a cloth bag containing bomb. Thereafter half an hour Ashrat reached there. On
the same day in the evening as per the plan accused no.1 Hanif and accused no.2 Ashrat reached at SEEPZ Bus Depot alongwith a cloth bag containing bomb and accused no.2 Ashrat boarded BEST bus No.312 and
asked accused no.1 Hanif to go back.
263
Evidence of PW-61 Shankar Revdekar, who was discloses
working as Starter in the SEEPZ Bus Depot
that BEST bus bearing registration No. MH-01 H-8765 was plying on bus route No.312 and later on it was converted into bus route no.336. the FIR of MIDC Police Station It is mentioned in of C.R.No.400/02
which is at Ex.P-404 that a suspicious article was found kept in the cloth bag at the rear side of the BEST bus bearing No.MH-01 H-8765 which was later on detected as live bomb and it was defused by the BDDS squad.
264
It is revealed from confessions of accused
nos. 1 to 3 that accused no.2 Ashrat reached to the house of accused Hanif at about 4.00 p.m. on
27.7.2003 and thereafter half an hour Nasir came there. Then all the three persons i.e Hanif, Ashrat
and Nasir prepared bombs by using gelatine sticks, timer and detonators on the loft of the house of Hanif. At the same time it was decided by them to
keep one of the bombs in the BEST bus of route no. 340.
265
On
the
next
day
in
the
evening
i.e
on
28.7.2003 Ashrat visited Hanif's house.
Accused no.
2 Ashrat and accused no.3 Fehmida who is the wife of
Hanif
left the house with a bag containing bomb and
reached Andheri bus stop where they boarded BEST bus of route no.340. The cloth bag containing bomb was put by them beneath the rear seat of the bus.
Ashrat and Fehmida had taken two tickets of Asalpha village but alighted at Marol Pipeline bus stop and thereafter at about 21.10 hrs. on the same day the bomb was exploded Marg at Karani in Lane, front Lal of Bahadur Telephone
Shastri
Junction
Exchange, Ghatkopar(West), Mumbai-86.
266 Nasir
On the next day i.e 29.7.2003 Ashrat and came to the house of Hanif where they
discussed about the low impact of
the explosion of
the bomb which was kept in the BEST bus of route No. 340. In the same meeting they decided to explode the bombs of great magnitude to cause more damage.
Nasir thereafter went to his native at Hyderabad and returned back to Mumbai on 16.8.2003 in a red
colour Maruti Car in which four bags each containing
500 gelatine sticks were kept.
Nasir reached to the
house of Hanif on above day at about 10.00 p.m. Four bags containing gelatine sticks were kept by him on loft of the house of accused no.1 Hanif. night he stayed in the house of Hanif. On that
On the next
day Nasir called Ashrat to the house of Hanif and all the three persons planned to cause bomb blast at Gateway of India and Mumbadevi. Thus the plan of
causing bomb blasts at above two places was made by Hanif, Ashrat and Nasir in the house of Hanif on 17.8.2003. house of Nasir Hanif bomb on and blasts 22.8.2003 again him two came his to plan the of on
disclosed at above
causing
places
25.8.2003. Thus the date (25.8.2003) of exploding bombs at above two places was fixed on 22.8.2003.
267
On 24.8.2003 Nasir asked Hanif that he (A-1) to
alongwith his wife and their both the daughters
visit Gateway of India in a taxi under the pretext of tourist so as to fix the place of exploding bomb.
Nasir also told Hanif that he had already directed Ashrat to hire a taxi and manage to park it near Mumbadevi Temple for exploding bomb on 25.8.2003.
268
It is transpired from the evidence of PW-15
Shivnarayan Pandey and the confessions of accused nos.1 to 3 Hanif, that on 24.8.2003 Nasir, accused no.1
accused no.3 Fehmida and her two daughters
hired a taxi at Andheri bearing No. MH-02 R-2007 to go to Colaba. Above taxi was owned by PW-15
Shivnarayan Pandey who himself was driving the same. On the way to Colaba they visited tourist places, viz. Hajiali, Chowpaty and Aquarium and thereafter reached to Colaba. PW-15 Shivnarayan Pandey was Pay
asked to park the taxi in front of Hotel Taj at & Park site.
Hanif and his family members and and thereafter
Nasir had a lunch in Bagdadi Hotel they
came to parking place i.e pay & park site in
front of Hotel Taj near Gateway of India which place was fixed by them for exploding bomb. All the above
persons returned to Andheri till 15.30 hrs. and they asked PW-15 Shivnarayan Pandey to come on the next day at about 10.00 hrs to go to Colaba.
269
Nasir came to the house of Hanif at about Nasir and Hanif went to
11.30 p.m. on 24.8.2003.
the loft of his house and prepared two bombs by using 125 gelatine sticks and time was set to both the bombs at 1.00 p.m. of 25.8.2003. Nasir told
Hanif that the above bombs prepared by them were of great magnitude as highly explosive material was used for preparing the same. These two bombs were
kept in two separate bags. One of them was kept in gray colour airbag and another was kept in sky-
blue colour bag and both the bags containing bombs were kept in red colour Maruti car of Nasir.
Accused no.2 Ashrat reached to the house of Hanif at about 8.00 a.m. on 25.8.2003 and again they
discussed about their plan of exploding bombs at Gateway of India and Zaveri Bazar.
270
As per the plan Hanif, his wife Fehmida and
their both the daughters reached to Rubi Coach Co. at Chimatpada in their rickshaw. had already reached near the Nasir and Ashrat with their
factory
Maruti car. Nasir handed over gray colour airbag to Hanif. Nasir apprised Hanif that time of 1.00p.m was set in the bomb which was kept in the gray colour airbag. Hanif thereafter took his auto-rickshaw in Barfiwala Lane and hired the taxi of PW-15
Shivnarayan Pandey from Azad Galli.
Taxi driver was
asked to take the vehicle inside Azad Galli near the building which was under construction where rickshaw of Hanif was parked. The gray colour bag was taken
out by Hanif from the rickshaw and it was put in the dickey of the taxi. Hanif, his wife Fehmida and their daughters got into the rickshaw and they When Bhid driver
proceeded towards Colaba at about 10.30 hrs. the taxi reached at near about Electric 12.35 House hrs, and
Bhanjan
Mandir
taxi
Pandey
gave
call
to
his
friend
Ramchandra
Gupta
coming from front side. He therefore stopped taxi and started chit-chatting with him. At that time accused no.1 Hanif asked the taxi driver not to waste time and take the taxi immediately to the place where it was parked on earlier day. PW-15 Shivnarayan Pandey thereafter parked his taxi at Pay and Park site in front of Hotel Taj at Gateway of India. Parking receipt bearing No.566 which is at mentions that the PW-15 Shivnarayan
Ex.P-312-A
Pandey parked his taxi at parking place at about 12.40 hrs. to abandon PW-15 was directed by accused no.1 not the taxi till their arrival and the
intention of giving such direction to PW-15 was that he should die in the bomb explosion, so that there should not be any eye-witness to the explosion of the bomb in the taxi.
271
Recitals in the confession of accused no.1
Hanif and Fehmida that they had been to Colaba and
visited Gateway of India on 24.8.2003 and 25.8.2003 in a taxi is well supported by the ocular testimony of PW-15 Shivnarayan Pandey and the documents i.e parking receipts Ex.P-316 and Ex.P-312A. PW-15
Shivnarayan Pandey has identified accused nos.1 and 3 in identification parade which was held at Mumbai Central Prison and Byculla District Prison on
6.10.2003 vide memorandum Ex.P.323 and Ex.P-324 as the persons who travelled in his taxi from Andheri to Colaba on 24.8.2003 and 25.8.2003. He has also
identified both the accused in the court saying that the same persons had hired his taxi on 24.8.2003 and 25.8.2003 from Andheri to Gateway of India. deposed by PW-15 Shivnayaran Pandey that It is it was
accused no.1 Hanif who put his gray colour airbag in the dickey of the taxi and the taxi was exploded at parking place at about 1.00 p.m on 25.8.2003. Thus
facts mentioned in confessions of accused nos.1 and 3 are well corroborated by the unshattered testimony of taxi driver PW-15 Shivnarayan Pandey.
Confession of Accused no.2 Ashrat
272
It is stated in the confession (Ex.P-501A)
of accused no.2 Ashrat that on 25.8.2003 he himself and Nasir had been to Asalpha and hired a taxi to go to Zaveri Bazar. The same taxi was initially taken to Chimatpada, Marol. where a red colour Maruti car was parked. Nasir took out one sky-blue colour nylon bag from the Maruti Car and put the same in the dickey of the taxi and Nasir left the spot. Accused
no.2 Ashrat sat in the taxi on the front side beside the driver and asked the taxi driver to take it to Zaveri Bazar. Taxi was reached to Zaveri Bazar at
12.00 hrs. Accused no.2 Ahsrat tried his level best to park the taxi at the place which was already fixed on the earlier day but that place was not made available for parking the taxi. Taxi was therefore parked in the taxi stand. Accused no.2. Ashrat left the taxi saying the taxi driver that he wanted to
purchase some goods.
Ashrat thereafter contacted
Nasir by making him phone call at about 12.10 hrs. and shortly thereafter taxi was blown in the
explosion. Recital in the confession of Ashrat that after parking taxi at taxi-stand in Zaveri Bazar and then he contacted Nasir by making him phone call at 12.10 hrs., stand corroborated by the testimony of PW-28 Dilip Yagnik and the call details Ex.P-284 (colly).
273
From the evidence of PW-28 Dilip Yagnik it
is found that he was serving in STD booth situated at 5, Vitthalwadi, Zaveri Bazar, Mumbai-2. There were three telephone instruments in the said booth and instrument no.56389009 was one of them. It was
accused no.2 Ashrat who on 25.8.2003 at 12.15 hrs. made phone call to Nasirbhai through the above STD booth and said him maine Mumbadevi Mandir ke pas
taxi me mal bhara hai. thodi der me kam ho jayega . There is evidence that Nasir was using cell number
9892451164.
Call
details
Ex.P-284(colly)
of
the
above cell number makes it clear that the above cell number was contacted through telephone instrument No.56389009 at about 12.13.49 p.m. on 25.8.2003.
Thus the above contents of the confession of accused no.2 Ashart of is PW-28 substantiated and the by the ocular Ex.P-284
testimony (colly).
document
274 accused
Adv. no.3
Pasbola has
Ld.
Counsel that
appearing confession
for of
submitted
accused no.3 cannot be taken into consideration as the recording officer did not record his
satisfaction that the confession of accused no.3 was voluntary. placed In support upon of this submission alias he has Jimi
reliance
Bharatbhai
Premchandbhai 3620. In the
V/s State of Gujarat above case the
AIR, 2002 SCC Apex Court
Hon'ble
observed in para 46 as under: in the present case, admittedly Rule 15(3) (b) has not been complied. No memorandum as
required
was
made.
There to
is
also show
no the
contemporaneous
record
satisfaction of the recording officer after writing of confession that the confession
has been voluntarily made. The confession of accused was read no.7 does not even state that it over to him. Thus, confessional cannot be conviction. are excluded
statements are made basis of Once
inadmissible and upholding the
confessional
statements
the conviction cannot be sustained .
275
I have examined the confession of accused
no.3 to see whether it complies with the requirement given in the above paragraph. It is important to note here that no rules have been framed under the Prevention of Terrorism Act, 2002 pertaining to
recording of the confession. Sec.32 of POTA 2002 is the self contained code on the point of recording of confession of the accused. I have already observed
that sub-sections (2) to (5) of Sec.32 of POTA, 2002 have been complied with accused nos.1 to 3 are so far as confession of concerned. The statutory
warning
was
given
to
the
accused
by
recording
officer (PW-90) that accused was not bound to make the confession and if it was given the same would be used as evidence against her. time for more was than 24 hours in Accused was given for reflexion and DCP
confession Mrs.Archana confession
recorded
free who has
atmosphere. has
Tyagi of
(PW-90) no.3
recorded her
accused
recorded
satisfaction below the confession by making separate endorsement to the following effect:I have explained to the accused that she is not bound to make a confession and that, if she does so, any confession that she makes, may be used as evidence against her
and I am satisfied that this confession has been made voluntarily. It has been made before me and in my hearing and has been
recorded by me in the language in which it is made and as verbatim and correct containing also full and true account of the confession made by her''. and
276
It
is
also
seen
from
the
confession
of
accused no.3 Ex.P-522/A that the confession was read over to the accused and she had admitted to have recorded it correctly. DCP Mrs.Archana Tyagi has also maintained contemporaneous record regarding the confession. Thus all the procedural formalities have been observed and complied with by DCP Mrs.Tyagi while recording the confession of accused no.3
Fehmida and therefore confession of the accused no.3 is admissible.
277
Accused nos.1 to 3 have admitted in their about their involvement of preparing
confessions
bombs and placing the same in the BEST bus of route No.312(336) on 2.12.2002 and in BEST bus of route They have also admitted their
no.340 on 28.7.2003.
involvement in the bomb blast occurred at Zaveri Bazar and Gateway of India on 25.8.2003. All
procedural safeguards were followed by the concerned Deputy Commissioners of Police while recording the confessions of accused nos.1 to 3. Facts stated in
the
confessions
receive
sufficient
corroboration I, therefore
from oral and documentary evidence.
hold that the confessions of accused nos.1 to 3 are voluntary and truthful and therefore they can safely be relied upon.
Criminal Conspiracy and Evidence of P.W.2

278 When two or more persons agree to do, or
cause to be done an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. The gist of
offence of criminal conspiracy under section 120-A of IPC is a bare agreement to commit an offence which is made punishable under section 120-B.
Generally conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. It is essential that the offence of conspiracy requires some The kind of physical as to manifestation transmission of of
agreement.
evidence
thoughts sharing unlawful designs may be sufficient
to
prove
the is
conspiracy. a continuing
Offence offence
of
criminal its
conspiracy
and
continuance is a threat to the society against which it was aimed at.
279
It emerges from the evidence of PW-2 Jahid
that he went to Dubai in June-1999 for the purpose of job and returned to India on 1.10.2003. He came in contact with Nasir in a Masjid at Dubai in the month of August-2000. Whenever he used to go to Masjid for offering prayer, he used to meet
Pakistani Nationals i.e Abid and Naeem and According to him,
Bilal, Samiulla, Rehman,
Indians viz. Hanif and Nasir. he himself and Hanif, Nasir,
Rehman, Bilal, Samiulla and Abid were all members of Lashkar-E-Taiba. PW-2 Jahid has joined Lashar-E-
Taiba in the year 2000 because he wanted to take revenge of atrocities on Muslims which were shown in CDs in respect of Gujarat incident. According to him, Lashakr-E-Taiba is a Pakistan based terrorist
organization
established
with
view
to
spread
terrorism. After his becoming member of Lashkar-ETaiba, he was motivated by his associates that he should go to India and do something to spread terror for the religion and the terror was to be spread by causing bomb blasts. Evidence of PW-2 shows that his associates Hanif and Nasir underwent training for causing bomb blasts. The training consisted
preparation of bombs and handing of fire arms. It is stated in clear terms by PW-2 Jahid that he himself, Nasir, hatched Hanif, Samiulla, Bilal, in Rehman the bomb and month blasts Abid of in
criminal at
conspiracy for
August-2002
Dubai
causing
Mumbai. Nasir, Hanif, Ashrat and Fehmida gave effect to the above plan.
280
PW-2 spoke about the plan of causing bomb
blasts in Mumbai. The first bomb blast was to be caused at SEEPZ in Andheri on 2.12.2002. Second bomb blast was to be caused at Ghatkopar in BEST bus on
28.7.2003. Third and fourth blast was agreed to be caused on one and the same day i.e 25.8.2003 at Zaveri Bazar and Gateway of India. PW-2 was
informed by Hanif
that plan of causing bomb blast
at SEEPZ had failed. PW-2 Jahid thereafter told him to carry out the work further by causing big bomb blast explosion. When PW-2 Jahid had been to Mumbai in the month of May-2003 at that time it was accused no.2 Ashart who had come to Sahar Airport to receive him. PW-2 stayed in Mumbai for one month i.e
May-2003 during which he had an occasion to meet Hanif, Nasir and Ashrat. The evidence to the above
effect given by PW-2 does not stand discredited in his cross-examination.
281
PW-2
deposed
that
on
24.8.2003
he
was
contacted twice by Nasir from Mumbai in the morning at about 9.15 a.m and in the evening at 5.30 p.m. and Nasir informed him that the work was going on according to the plan. Nasir was using cell no.
9892451164 and the phone number of Jahid at Dubai was 00971505451488. Ex.P-284(colly) is the print
out of the call details of the cell number of Nasir i.e 9892451164 which is proved by who was working as Sr. PW-6 Manoj Patil at Airtel Co.
Executive
There is difference of about 1 hours between Dubai timing and India timing and India timing is ahead. It is seen from call details Ex.P-284(colly) that there was conversation for near about 22 seconds on 24.8.2003 at about 10.48.28 a.m. and the caller was holder of the cell number 9892451164 who contacted calling number 00971505451488. On the same day
Nasir contacted Jahid at about 6.58.39 p.m.
Nasir
also informed Jahid to watch T.V. in the evening on 25.8.2003. PW-2 Jahid has made it clear in his
evidence that their plan of causing bomb blast in Mumbai was executed by Nasir, of Hanif, Ashrat to and 3
Fehmida.
Confessions
accused
nos.1
corroborate the above evidence of PW-2 Jahid. Thus evidence of PW-2 Jahid stand corroborated by the
recitals
in
Ex.P-284
(colly)
and
confessions
of
accused nos.1 to 3. given to him in
PW-2 had admitted suggestion on behalf of
cross-examination
accused no.3 that as he was repenting for the crime and wanted to suffer punishment therefore he had not engaged any advocate. PW-2 even did not make formal request to the court of tendering him pardon. It is IO and Spl.P.P. who after filing charge-sheet made application to the court for granting conditional pardon to PW-2 as per section 307 of Cr.P.C. 282 Persons who become party to the criminal
conspiracy act secretly without leaving any clue. In the present case, testimony of PW-2 Jahid is the direct evidence of the conspiracy hatched in between him and his associates viz. Nasior, Hanif and
Pakistani Nationals viz. Bilal, Samiulla, Abid and Rehman of causing terrorist acts in Mumbai by
exploding bombs and the said plan was executed by deceased Nasir and accused nos.1 to 3 collectively.
283
After having examined the entire prosecution
evidence and the testimony of PW-2 I find that he was party to the criminal conspiracy initially
hatched in the house of Nasir at Dubai in the month of August, 2002 in between him and deceased Nasir, Accused no.1 Hanif and wanted accused persons of causing bomb blasts in Mumbai. Evidence of PW-2
Jahid receive corroboration in material particulars in the form of confession of accused no.1 to accused no.3 and call details of cell number of Nasir which is at Exh.P-284 (colly) and seizure of hazardous explosive substances from the house of accused nos.1 to 3 vide seizure memos Exh.P-393/A, P-394/A and P-395/A. His evidence has not been shaken in the I find his evidence natural and
cross-examination. reliable.
Sanction to prosecute accused persons under Explosive Substances Act, 1908.
284
Shri Sambhaji Zende (PW-101) was working as
Collector and District Magistrate of Mumbai Suburban District at Bandra with effect from January-2003 to December-2006. received It is testified by him dtd. that he
proposal
(Ex.P-569
colly)
9.1.2004
from Assistant Commissioner of Police, Crime Branch, DCB CID, Mumbai for according sanction under section 7 of Explosive Substances Act, 1908 to prosecute the accused persons. were also sent Copies of the FIR and C.A. reports alongwith the above proposal. He
perused the above documents pertaining to DCB CID C.R.No.157/02 (C.R.No.400/02 of MIDC Police Station) and DCB CID C.R.No.75/03 (C.R.No.235/03 of Ghatkopar Police Station) and had discussion with
Investigating officer ACP Shri Walishetty and he was thereafter committed Explosive convinced an offence that accused the and persons provisions therefore have of he
under Act,1908
Substances
accorded sanction on 22.1.2004 under section 7 of Explosive Substances Act,1908 which is at Ex-
P-568(colly).
285
I.O.
Shri
Walishetty
also sent
another
proposal (Ex-P-566(colly)) to District Magistrate, Mumbai City on 9.1.2004 seeking to accord sanction against the accused persons under section 7 of
Explosive Substances Act, 1908 in connection with C.R.No.206 of 2003 of Colaba Police Station and
C.R.No.201 of 2003 of L.T.Marg Police Station.
286
It
is
the
evidence he was
of
Dr.Pradeep as
Vyas
(PW-100)
that
working
District to
Magistrate, Mumbai City District from 28.8.2002
16.5.2005. He received proposal of IO dtd. 9.1.2004 for according sanction to prosecute the accused
persons under the provisions of Explosive Substances Act,1908. After going through the documents sent along with the with that proposal IO case ACP was and Shri made after having he held was
discussion convinced
Walishetty out for
according
sanction
to
prosecute
the
accused
persons
under
Explosive Substances Act, and he therefore accorded sanction which is placed on record at
Ex.P-565(colly).
In the cross-examination it is
stated by PW-100 that he initially prepared draft sanction order and thereafter it was corrected by him and then he prepared final order.
287
Ex.P-565(colly) is the order of sanction to
prosecute the accused persons accorded under section 7 of Explosive Substances Act, 1908 pertaining to C.R.No.206 C.R.No.201 of of 2003 2003 of of Colaba Police Station and
L.T.Marg
Police
Station.
Column No.3 of the sanction order mentions C.R.No. and registration of the offences under IPC,
Explosive Act 1884, Explosive Substances Act 1908, Prevention of Damage to Public Property Act 1984 and POTA, 2002. However, the above sanction order is silent regarding the penal provisions of Explosive Substances Act, 1908 under which sanction is
accorded to prosecute the accused persons.
Thus
the offences for which prosecution is to be launched has not been mentioned in the above order therefore
the said order is result of non application of mind by sanctioning authority and therefore, I hold that order of sanction Ex.P-565(colly) is not valid and legal.
288
Order of sanction Ex.P-568(colly) which is
pertaining to C.R.No. 400 of 2002 of MIDC Police Station and C.R.No.235 of 2003 of Ghatkopar Police Station is also not free from fault. Sanction order of Ghatkopar Police Station makes mention that
accused persons are liable to be convicted under section 5 r/w section 9(B) of Explosive Act, 1884 and under section 3 of Explosive Substances Act, 1908 and therefore sanction under section 7 of
Explosive Substances Act,1908 is accorded. Sanction Order so far as C.R. of MIDC Police Station is concerned discloses that accused persons are liable
to be convicted under section 5 of Explosives Act, 1884 and under section 3,4 and 9 of Explosive
substances Act, 1908. It is to be noted that there are only seven sections in Explosive Substances Act, 1908 and therefore section 9 of Explosive Substances Act cannot be found in the above Act. pertaining to Penal the
provision
Section
9(B)
contravention of the rules made under section 5 of Explosives Act, 1884 is not mentioned in the order of sanction. Cumulative effect of the sanction
accorded to the offences registered at MIDC Police Station and Ghatkopar Police Station lead me to find that Ex.P-568(colly) is valid and legal so far as the prosecution of the accused persons under section 5 r/w section 9(B) of Explosives Act, 1884 and under section 3 and 4 of Explosive Substances Act, 1908.
289
It
is
mentioned
in
the
order
of
sanction
Ex.P-565(colly) that as per clause (I) of the Govt. of
Art.258 of Constitution of India,
India Home Department in consultation with the Govt. of Maharashtra by its notification dtd. 25.11.1980 had delegated power to the Collector and District
Magistrate to act under section 7 of the Explosive Substances Act, 1908. Therefore the consent given by the District Magistrate, Mumbai Suburban and Mumbai City to prosecute the accused persons is a
sufficient consent in terms of sec. 7 of Explosive Substances Act, 1908.
Sanction accorded by Govt. under section 50 of the Terrorism Act, 2002
of Maharashtra Prevention of
290 Deputy
PW-102
Mr.Prakash Hirlekar Home
was
working
as
Secretary,
Department
from
September-2003 till May-2005. According to him he was authorized to sign the order of the Govt. of Maharashtra under the Maharashtra Govt. Rules of Business. He received proposal on 23.1.2004 from
Chief Investigating Officer ACP Shri Walishetty for according sanction under section 50 of POTA, 2002. Calender of evidence against 6 arrested accused
and wanted accused persons the proposal. He
was also sent alongwith called the chief
thereafter alongwith
Investigating
Officer
investigation
papers. After going through all the investigating papers he found evidence against the accused persons for according sanction. He therefore sent that
proposal to Law & Judiciary Department which was submitted to the Chief Minster. The Chief Minister accorded sanction and order to that effect was
received by Home Department on 3.2.2004. On that basis PW-102 signed the sanction order on 4.2.2004 which is placed on record at Ex.P-573.
291 no.1
Advocate Wahab Khan Ld.Counsel for accused has submitted that PW-102 gave evidence in
cross-examination that he did not remember whether a letter was issued by him to IO calling him for
discussion. regarding Walishetty. the
PW-102
made
no he
noting had
in
his IO
file Shri
discussion
with
In view of the above it is submitted
that version of PW-102 speaks about non application of mind. The above argument is not tenable it is the evidence of PW-102 that he because received
calender of evidence against arrested and wanted accused persons and thereafter he held discussion with IO. After finding prima facie case against the accused persons he sent proposal to Law & Judiciary Department and it was later on submitted to Chief Minister. Chief Minister accorded sanction and the papers were received to the office of PW-102 on 3.2.2004 and on that basis sanction order was signed by him on 4.2.2004. The cross-examination of
PW-102 shows that there was application of mind on each and every that stage there of was the inquiry and after the the
satisfying accused
evidence was
against by
persons
sanction to
accorded the
sanctioning
authority
prosecute
accused
persons.
292
Next point urged by Adv.Wahab Khan is that
the sanctioning authority i.e Chief Minister of the State has not been examined by the prosecution and
therefore sanction cannot be said to have been duly proved. as PW-102 There is no substance in the above point has made it clear in his evidence that he the order of under the
is authorized and competent to sign sanction on behalf of the Govt.
Maharashtra Govt. Rules of Business. POTA 2002 speaks about the previous
Section 50 of sanction of
Central Govt. or, as the case may be, the State Govt. As per the rules of Business of Govt. of is competent to make signature After making due inquiry
Maharashtra, PW-102
on the order of sanction.
into the proposal and after discussing the facts of the case with IO the sanctioning authority was
satisfied that case was made
out to accord the
sanction. I therefore find no infirmity in the order
of sanction.
293
I have gone through the order of sanction.
All the facts constituting the offecnes registered at MIDC Police Police Station Station (C.R.No.400 (C.R.No.235 of of of 2002) 2003), and
Ghatkopar Colaba
Police
Station
(C.R.No.206
2003)
L.T.Marg Police Station (C.R.No.201 of 2003) have been mentioned in detail in the order of sanction.
The role of arrested and wanted accused persons in the commission of the offence is also mentioned in the above order. Govt. of It is stated in the order that having fully examined the
Maharashtra
material placed before it and considering all the facts prima facie case was made out against the
accused persons and therefore it was necessary in the interest of Justice that the accused persons should be prosecuted sanction in the Competent section 50 court of and The
therefore
under
Prevention of Terrorism Act, 2002 is accorded to
prosecute the accused persons under section 120-B of Indian Penal Code r/w section 3,4,5(1) and 20 of the Prevention of Terrorism Act,2002. After having gone through the above evidence it is found that the
sanctioning authority perused investigating papers and by applying mind into all the facts of the case, sanction was accorded to prosecute the accused
persons. Order of sanction is therefore legal and valid. 294 accused Adv.Wahab no.1 Khan Ld. the Counsel point appearing it is for the
raised
that
prosecution case that conspiracy of doing terrorist acts in Mumbai was hatched in Dubai in the month of August-2002. Thus an offence punishable under
section 120-B of IPC was committed by the accused persons in Dubai and therefore prosecution should have obtained previous sanction of the Central Govt. as per section 188 of Cr.P.C. For want of sanction,
court cannot take cognizance of the offence alleged to have been committed by them. No such previous
sanction therefore
is
obtained cannot
by
the
prosecution of
and the
court
take
cognizance
offence and on this count accused are entitled to be acquitted. In support of this submission reliance is placed upon Ajay Agrawal V/s Union of India AIR 1993 SC Pg.1637 . In the above matter Hon'ble Apex Court that offence and continues it is held by the
a conspiracy is continuing to subsist and committed
wherever one of the conspirators does an act or series of acts. So long as its performance
continues, it is a continuing offence till it is executed or rescinded or frustrated by choice or necessity . This proposition does not in any way come to the aid of the defence. On the contrary it
strengthens the prosecution case.
It is found from
the evidence that conspiracy for doing terrorist act was hatched in between accused nos.1 to 3 and
deceased Nasir as well as wanted accused persons and it continued till 25.8.2003 on which the twin blasts did take place in Mumbai and therefore there is no
question of obtaining sanction of Central Govt. as provided in section 188 of Cr.P.C.
295
This of
court
has
held bomb
that
part in
of
the was
conspiracy
causing
blasts
Mumbai
hatched in the house of Nasir at Dubai in the month of August-2002 and part of it was hatched in the
house of accused no.1 Hanif at Mumbai and on that count also the previous sanction of the Central
Govt. as per section 188 of Cr.P.C. is not required.
296
The next point urged by Adv.Wahab Khan is
that prejudice has been caused to the defence as the court did not permit the accused persons to examine some witnesses i.e DCP Shri Gulabrao Pol and
Reporters of Print Media. Accused persons wanted to examine DCP Shri Gulabrao Pol to prove the
confessional statement of one of the accused in POTA Special Case no.1 of 2003. Court issued summons to the above witness and the witness remained present
before the court on 4.9.2008. The document which was to be proved by the defence by examining DCP Shri Gulabrao Pol was not produced on record and
therefore the witness was discharged. Defence made no application to call the document which was to be proved and therefore the fault cannot be found with the court. 297 accused For proving the date of arrest to of the
persons
defence
wanted
examine
reporters/editors of some of the news papers who attended the press conference held by Dy.Chief
Minister Mr.Chagan Bhujbal and the Commissioner of Police Shri R.S. Sharma on the point of date of the arrest of accused persons. The press cuttings which were produced on record by the defence have already been exhibited and on that count court did not find it proper to summon reporters to prove those press cuttings. I am therefore of the opinion that no
prejudice has been caused to the defence as accused themselves have admitted the date of their arrest
before
this
court
when
they
were
produced
for There
seeking their first police custody remand.
is thus no substance in the above submission of the defence.
298
Adv.Wahab
Khan
further
submitted
that
evidence of IO Shri Walishetty was recorded by court in piecemeal manner on 11 dates. It was commenced on 4.2.2007 and was concluded on 23.2.2007. The above
facility was given to IO with a view to get him opportunity to go through all the investigation
papers. IO did not remember the material dates of the improvements done in the investigation and
therefore he was allowed by the court to use the note-sheet (Art-11) prepared by him for giving
evidence copy of which was supplied to defence. Ld. Defence counsel submitted that court cannot allow the witness to use the note-sheet in the light of the mandate of section 172 of Cr.P.C. and 159 of Evidence Act. In support of the above submission
defence has placed reliance upon Siddharth V/s State of Bihar (2006) 1 Supreme Court Cases (Cri) 175. In the said case the entire case diary the police was made available to maintained by the accused.
Referring to section 172 of Cr.P.C. by the Hon'ble Apex Court that
It is observed the court is
empowered to call for such diaries not to use it as evidence, but to use it as aid to find out anything that happened during the investigation of the crime. The police officer may come who is conducting the series the of
investigation
across
information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements is always to kept the in police. the matter The of
confidentiality
criminal investigation and it is not desirable to make available the entire case diary to the accused.
Thus the above observation of the Hon'ble Supreme Court made in para 27 of the judgment of the above cited case does not in any way come to the aid the defence. of
299
It emerges from the evidence on record that
accused no.1 Hanif, PW-2 Jahid, deceased Nasir and wanted accused persons got together in the house of Nasir at Dubai in the month of August-2002 to have a dinner. discussed increasing After taking dinner all the above persons that the atrocities in India. on Muslims Wanted were
day-by-day
accused
persons spoke to Jahid, Nasir and Hanif that there was necessity to have a deluge in India and
therefore
bomb blasts should be undertaken in the
big cities of India. In the said meeting it was decided to explode the bombs in crowded places at Mumbai so as to strike terror in the minds of people and to take the lives of maximum number of persons and to cause damage to public and private
properties.
300
Accused
no.1
Hanif
and
Nasir
returned
to
India from Dubai in the month of September-2002 and October-2002 respectively. PW-2 Jahid continued to reside in Dubai. Accused no.2 Ashrat is the
classmate of PW-2 Jahid.
When accused no.1 Hanif
came back to India in the month of September-2002 he was given one letter by PW-2 Jahid directing him to hand over the same to accused no.2 Ashrat in Mumbai. Hanif accordingly gave that letter to accused no.2 Ashrat. Thereafter Hanif and Ashrat started meeting Nasir was residing
each other frequently in Mumbai.
at Ghatkopar. He contacted accused Hanif on phone in the month of October-2002 and thereafter they held meeting in one hotel at Marol. Later on there used to be frequent meetings of Hanif, Ashrat and Nasir in the house of Hanif. Confessions of accused nos.1
to 3 show that accused no.2 Ashrat and Nasir had been to the house of Hanif and they held meetings in
Hanif's house on 29.11.2002, 2.12.2002, 27.7.2003, 28.7.2003, 16.8.2003, 17.8.2003, 22.8.2003,
24.8.2003 and 25.8.2003. had acquired the
Deceased Nasir and Hanif skill and training of
required
preparing bombs and handling the fire arms. three persons prepared bombs on
All the
the loft of the
house of Hanif by making use of gelatine sticks and detonators and the said bomb was placed by Ashrat and Hanif in the BEST bus of route No.312 at Seepz Bus Depot on 2.12.2002. That bomb was however not Nasir
exploded and it was defused by BDDS Squad. thereafter took accused no.3 Fehmida in
confidence
and asked her to accompany accused no.2 Ashrat for placing the bomb in BEST bus of route no.340 at Andheri on 28.7.2003. Accused no.3 Fehmida
willingly agreed to accompany Ashrat and Ashrat and Fehmida carried the bomb in a cloth bag and placed
the same in the rear seat of BEST bus No.340 which was exploded at about 9.10 p.m. on 28.7.2003 at Karani Lane, near the office of Telephone Exhange,
Ghatkopar resulting into the death of two persons and causing injuries to near about 60 persons. Nasir and Ashrat came to the house of Hanif on 29.7.2003 and they discussed that the bomb exploded in BEST bus of route No.340 was of low intensity. Nasir then apprised Hanif and Ashrat that the wanted accused persons expressed their displeasure about the poor impact of the bomb exploded in BEST bus of route no. 340 and the bomb planted in BEST bus of route No.312 was not exploded. Nasir thereafter declared in the
same meeting that henceforth they would explode the bombs of great magnitude in crowded places in Mumbai for causing more damage by using hazardous explosive substances.
301
Nasir
thereafter
went
to
his
native
at
Hyderabad and came back to Mumbai on 16.8.2003 in a red colour Maruti Car containing gelatine sticks in four-five bags. On the night of 16.8.2003 Nasir
stayed in the house of Hanif and on the next day
Ashrat
was
called
there.
Nasir
on
17.8.2003
disclosed his plan of planting bombs at Zaveri Bazar near Mumbadevi Temple and at Gateway of India so that there should be maximum number of casualties and public and private property in crores of rupees can be damaged. Again there was meeting of the
above three persons in Hanif's house on 22.8.2003 and in that meeting the date of Gateway of India and Zaveri exploding bombs at Bazar was fixed as
25.8.2003. A detail plan was chalked out for keeping the bombs in the dickey of the taxi and parking one of the taxis on the Hotel Taj at pay & park site of India and in front of other taxi
Gateway
containing the bomb was decided to be parked near Mumbadevi Temple. Accused nos.1 to 3 and Nasir
fixed the places of exploding bombs at Gateway of India and Zaveri Bazar. apprise PW-2 Jahid Hanif and Nasir used to
regarding the progress made by
them in the accomplishment of their plan.
302
Taxi of PW-15 Shivnarayan Pandey was hired
by Nasir and Hanif for two days i.e on 24.8.2003 and 25.8.2003. Nasir asked Hanif that he himself and his family members should take the taxi from Andheri to Gateway of India and park the same at lot in front of Hotel Taj. Pay & Park
Accused nos.1 and 3
kept the gray colour airbag containing bomb in the dickey of the taxi on 25.8.2003 and asked taxi
driver i.e PW-15 Shivnarayan Pandey to take the taxi at Gateway of India and park the same at above place. As per the direction of Nasir, Ashrat hired another taxi and a nylon bag containing bomb was kept in the dickey of the said vehicle and taxi
driver was asked to park the taxi near Mumbadevi Temple in Zaveri Bazar. There was no place to park
the taxi near Mumbaidevi Temple and therefore taxi was parked in a taxi stand in Zaveri Bazar at noon time on 25.8.2003. Ashrat said the taxi driver that
he would come shortly as he wanted to purchase some goods and he therefore left the taxi. Soon
thereafter the taxi was blown in the blast in which 36 persons were killed and 138 became injured. 41 vehicles, shops and residential houses were damaged and the damage was to the extent of Rs.95 lacs. Out of the four attempts of causing bomb blasts, three were succeeded and the bomb kept at Seepz Bus Depot could not be exploded and it was defused by the BDDS Squad. In the above three bomb blasts 54 persons were killed and 244 became injured and the property worth Rs.1,60,00,000/- was damaged. From the above events it is proved that conspiracy for doing
terrorist acts in Mumbai was partly hatched at Dubai in the house of Nasir in the month of August-2002 and it was partly hatched in Mumbai in the house of
accused no.1 Hanif where the detail plan was chalked out and it was executed by accused nos. 1 to 3 and Nasir.
303
During the course of investigation accused
no.2 Ashrat was initially arrested on 31.8.2003 at
about
20.20
hrs.
and
in
consequence
of
the
information given by him 30 gelatine sticks, 3 alarm clocks and 8 detonators came to be seized from his house situated at at Juned Nagar, Juhu Galli,
Andheri(West) Ex.P.393A.
about is
22.40hrs the
vide
pancahnama of the
Ex.P-591
C.A.Report
analysis of the above seized gelatine sticks and the result of analysis is that Nitrocellulose,
Nitroglycerine, Ammonium, Nitrate and saw dust were found on the gelatine sticks.
304
On the basis of the information given by
accused no.2 Ashrat, accused nos. 1 and 3 came to be arrested on 1.9.2003 at 03.00 hours and 117 gelatine sticks and other articles i.e soldering machine, 9 alarm clocks, polyester yarn etc. from the house of
accused nos.1 and 3 situated at room No.D-7 Salim Chawl, Chimatpada vide panchanama Ex.P.394A. Accused no.1 also possessed room no.14 in the same area and 58 gelatine sticks came to be seized from that room
vide sticks report
panchanama were is sent that
Ex.P-395A. to C.A
The
seized
gelatine The C.A.
for
analysis.
Nitrocellulose,
Nitroglycerine,
Ammonium, Nitrate and saw dust were found on the gelatine sticks. Thus accused nos.1 to 3 was not
having licence to possess the explosive substances. They were found in unauthorized possession of
hazardous explosive substances and therefore, I hold them guilty of the offence punishable under section 4(b) of The Prevention to Terrorism Act, 2002.
305
Accused nos.1 to 3 in pursuance of criminal
conspiracy of doing terrorist acts in Mumbai have planted 28.7.2003 bomb in BEST was bus of route the No.340 office on of
which
exploded
near
Telephone Exchange at Karani Lane, Ghatkopar, Mumbai at about 9.10 p.m resulting into the death of two They
persons and causing injuries to 60 passengers. have also planted
bombs in motor taxis bearing No.
MH-02 R-2022 and MH-02 R 2007 and exploded those
bombs
at
Zaveri
Bazar
and
Gateway
of
India
on
25.8.2003 resulting into the death of 52 persons and 184 persons suffered injuries in the above blast. In all 54 persons were killed and 244 became injured and property worth Rs.1,60,00,000/- was damaged as a result of doing terrorist acts by accused nos.1 to 3 in pursuance of the criminal conspiracy hatched by them. Clause fourthly of section 300 of IPC squarely apply to this case. 1 to 3 guilty of I, therefore, hold accused nos. the offences punishable under
section 120-B of IPC, 120-B r/w section 302 of IPC, 120-B r/w section 307 of IPC and 120-B r/w 427 of IPC.
306
Accused
nos.1
to were
in
pursuance in
of
the of
criminal
conspiracy
found
possession
explosive substances and they have unlawfully and maliciously caused, by using explosive substances,
an explosion of a nature likely to endanger life or to cause serious injury to property and thereby they
have
committed 9-B of
an
offence
under Act,
section 1884 and
r/w under
section
Explosives
section 3 and 4 of Explosive Substances Act, 1908. 307 Accused nos. 1 to 3 have also conspired to such criminal
do terrorist acts and in pursuance of conspiracy
they did the terrorist acts by exploding
bombs at Ghatkopar in BEST bus of route No.340 on 28.7.2003 and at Zaveri Bazar and Gateway of India on 25.8.2003 at about 1.00 p.m. killing 54 persons and causing injuries to 244 persons. Therefore, I hold them guilty of committing the offences
punishable under section
3(3) and 120-B of IPC r/w.
section 3(2) (a) of The Prevention of Terrorism Act 2002. Since the property worth Rs.1,60,00,000/- has been damaged in consequence of terrorist acts of accused nos.1 to 3 therefore, they are held guilty of the offences under section 3 and 4 of The
Prevention of Damage to Public Property Act, 1984. I answer the points accordingly.
27/07/2009.
(M.R. PURANIK) Judge, Special Court, Under POTA ACT,2002 Greater Bombay is suspended till 4.8.2009 for
Judgment
hearing the offenders
on the question of sentence.
27/07/2009.
(M.R. PURANIK) Judge, Special Court, Under POTA ACT,2002 Greater Bombay no.1 to 3 something they have are on asked whether they the question to of
Accused wanted to say but
sentence,
declined
make any
submission.
I have heard Adv. Wahab Khan and Adv.
Pasbola, learned Counsels for Accused nos. 1 and 3. Advocate Kunjuraman, learned counsel Appearing for accused no.2 has declined to make any submission on the question of sentence. Heard Special PP Mr.
Ujjwal Nikam for the prosecution. Hearing is adjourned to 06/08/2009 for awarding the sentence.
sd/-
04/08/2009.
(M.R. PURANIK) Judge, Special Court, Under POTA ACT,2002 Greater Bombay
PART-II OF THE JUDGMENT

Hearing the Offenders and Prosecution on the question sentence the of
Advocate for
Pasbola, accused no.3
Ld.
Counsel that
appearing
submits
case of accused no.3 does not fall under the caption of rarest of the rare case .
He further submits that the balance has to be struck between aggravating circumstances and mitigating circumstances. The role of
accused no.3 was not dominant in the matter of hatching conspiracy and not execution the fit to
thereof. case for
Therefore this is awarding capital
sentence
accused no.3 Fehmida.
Advocate
Pasbola
has
invited
attention of the Court to paragraphs 248, 249 and 250 of the Judgment in Parliament Attack Case reported in 2005 Supreme Court Cases (Cri) 1715. The relevant paragraphs are as under: 248. We are also not impressed by
the findings of the High court that by reason of the words occurring in Section or thing 3(1) (as a
part of the clause thing other
does any act or
by using bombs, dynamite or explosive substances or
firearms, etc.), the of a terrorist to a act
definition need not act be or
restricted
physical
using explosives, etc. The observation of the High court that the actions of Afzal in procuring explosives and chemicals and
participating in the preparation of explosives would be action
amounting to doing of a thing using explosives , cannot be supported on any principle of interpretation.
Moreover,it rests on a finding that
the
accused
Afzal
and
Shaukat
participated in the preparation of explosives for which there is no evidentiary support. Even their
confession (which is now eschewe form consideration) does not say that.
249.
The net result of the above
discussion is that the conspiracy to commit terrorist acts attracts punishment under sub-section (3) of Section 3. The accused Afzal who is found to be a party to the conspiracy is therefore liable to be punished under that provisions. Having regard to the nature, potential and magnitude of the
conspiracy with all the attendant consequences and the disastrous
events that followed, the maximum sentence of life imprisonment is the appropriate punishment to be given to Mohd. Afzal under Section 3(3) of POTA for conspiring to
commit the terrorist act. Accordingly, we convict and
sentence him.
250. 3(2)
The conviction under Section of POTA is set aside. The
conviction under Section 3(5) of POTA is also set aside because
there is no evidence that he is a member of a terrorist gang or a terrorist organisation, once the
confessional statement is excluded. Incidentally, we may mention that even going by the confessional
statement, it is doubtful whether the membership of a terrorist gang or organisation is established.
Relying upon the above observation
of the Hon'ble Apex Court, it is submitted by Adv.Pasbola that accused no.3 is found guilty of being a party to the criminal
conspiracy of causing in She Mumbai is from
bomb blasts occurred till 25.8.2003. section r/w
2.12.2002
therefore
convicted of
under
120-B
r/w
section 302
IPC, 120-B
section 307 of IPC and under section 3(3) and 4(b) of POTA 2002. that accused No.3 doing 120-B terrorist of IPC in It is submitted
cannot be held guilty of act by applying of section is and
as
theory
agency case
negatived
Navjyot
Sandhu's
therefore the capital punishment cannot be awarded to her.
4 above accused
There is hardly any substance in the submission. no.3 is In the present under case
convicted
section
3(3) of POTA 2002 of being a party to the criminal conspiracy of hatching terrorist
acts in Mumbai. She no.2 route
accompanied accused BEST bus of and no.1 also for
while planting bomb in No.340 her on 28.7.2003
accompanied
husband
accused
selecting the place of exploding the bomb at Gateway of India on 24.8.2003 and
parking the taxi loaded with explosives at Pay & Park Site in front of Hotel Taj at Gateway of India on 25.8.2003. She has thus committed terrorist act defined in
section 3(1)(a) of POTA 2002 under section 3(2)(a) of POTA
punishable 2002 and
therefore she is convicted accordingly. She has also committed an offence punishable
under section 3(3) of POTA and therefore she is held guilty of being party to the conspiracy. Paragraph Nos. 248,249 and 250 in Parliament Attack Case therefore cannot come to any aid to accused no.3.
It is further submitted by Advocate
Pasbola that accused no.3 comes from lower strata of society. She is having two minor daughters. Her husband is also held guilty in this case by the court. If accused nos.1 and 3 are awarded capital sentence, then
their
children
would
render
orphan.
Accused no.3 is illiterate and pardanaseen lady who is dominated by her husband. She did act as per the command of her husband and she was led in the conspiracy at the instance of her husband. Thus whatever she did was as per the direction of her
husband. She is financially dependent upon accused no.1 who is the only earning member of her taken by family. Aid of accused no.3 was persons for planting
co-accused
bombs in BEST bus and motor taxi so that suspicion should not be raised by public. It is thus submitted that applicant did not do overt act at her own accord and free will and therefore she is entitled to get lesser above punishment. effect is The argument to the
not
sustainable
because
there is evidence on record to the effect that accused no.3 on her own accord and
free will had accompanied accused no.2 for planting bomb in BEST bus of route no.340 and accompanied her husband for exploding the bomb at Gateway of India which was
planted in motor taxi. She did the above overt acts knowing thereof. fully Therefore well it the cannot
consequences
be said that she has just acted as per the dictates of her husband.
It is argued by Adv.Pasbola that the
Hon'ble Apex Court in Bachan Singh's case (1980 SCC (Cri) 580) held that if the
accused acts under duress or domination of the other persons then that for can be a the
mitigating
circumstance
awarding
appropriate sentence. was led into
Since accused no.3 by her husband
conspiracy
therefore she may not be awarded capital sentence. In support of the above
submission Adv.Pasbola has placed reliance upon following citations: i) Bachan Sing V/s State of Punjab 1 980 ii) SCC (Cri) 580
Ediga Anamma V/s State of Andhra Pradesh 1974 SCC (Cri) 479
iii)
Subhash Chander V/s Krishanlal and Others 2001 SCC (Cri) 735
iv)
Mohd. Chaman Delhi) 2001
V/s State (NCT of SCC (Cri) 278
v)
Prakash Dhawal Khairnar (Patil) V/s State of Maharashtra 2002
Supreme Court Cases (Cri) 281.
Advocate
Wahab
Khan
Ld.Counsel
appearing for accused no.1 submits that the court has discretion in the matter of 51 the
imposing sentence. yeas old. He is
Accused no.1 is ready to undergo
imprisonment to the whole of his life and will not pray for his pre-matured release on any count and he will also not pray
either for parole or furlough. He is ready
to give undertaking to that effect. If he is sentenced to imprisonment for whole of his life, then there would be no question of his repeating the crime. Accused no.1 is having clean record. Earlier he was not
arrested in any case. He is Indian citizen and not a foreign national. Some Pakistnai Nationals polluted his mind by showing him
CDs of Gujarat atrocities when he was at Dubai for earning purposes. He was
misguided by Pakistani Nationals. He is in custody during since the more than period five years was and no
above
there
complaint from jail about his misbeaviour. His conduct during trial was also normal as he is having faith in the system. Accused
no.1 is having minor daughter who should not be deprived of of leading a dignified also held
life. Wife
accused no.1 is
guilty in the present case. Considering the
circumstances submitted that
referred accused
above no.1 may
it not
is be
awarded death sentence.
Advocate
Kunjuraman
Ld.
Counsel
appearing for accused no.2 declined to make any submission on the question of sentence.
Special
P.P.
Mr.Ujjwal
Nikam
has
submitted that Court has to record special reasons for awarding death sentence as per sub section (3) of section 354 of Cr.P.C. Special which manner reasons from are case questions to the case. of facts and is be
vary of
Mode
committing aspect
offence needs to
important
which
considered by the court while awarding the sentence. 1 to 3 In the present case accused nos. and deceased Nasir and wanted
accused persons hatched criminal conspiracy
in the month of August-2002 for doing bomb blasts in Mumbai City and in pursuance of the conspiracy they have planted bombs in BEST buses and motor taxis in Mumbai and thereby they have killed 54 innocent Accused cruel
persons and injured 244 persons. persons have exhibited extreme
attitude while planting bombs in BEST buses and motor taxis. They have shown total
disregard for human life.
They have also
enjoyed the act of killing of 54 innocent persons and therefore the present case is rarest of rare case which invites the
capital punishment. Accused nos.1 to 3 by their limit extreme of brutality have crossed According the to
shamelessness.
Special P.P. Mr.Nikam, this is not a case of killing of by of 54 the 54 persons but and to it is a
massacre persons
innocent accused
undefended fulfill the
object of Lashkar-E-Taiba and therefore the capital punishment is warranted. Special
P.P. Mr.Nikam has pointed out the recitals in the confessional statement of no.1 Hanif which reads as under: bomb blast kar ke Hindustan ko khokhala kar denge. accused
Accused
persons
thus
wanted
to
wage
war
against India by doing bomb blasts in the crowded Country. places They of Prime cities in the at
have
planted
bombs
Gateway of India and in Zaveri Bazar with a view to increase death tall of the innocent persons so as create panic in the minds of the people. the night After watching T.V. news on of 28.7.2003, accused saying no.1 that
expressed
displeasure
Ghatkopar ke bam me jyada log maare nahi gaye . Accused persons therefore decided
to explode powerful bombs at Mumbadevi and
Gateway of India. The above two spots were fixed by them after doing survey of various locations in Mumbai. Accused no.3 Fehmida
accompanied her husband accused no.1 Hanif on 24.8.2003 for fixing the spot of
planting bomb at Gateway of India and also accompanied parking the him taxi on the next day while R-2007
bearing
No.MH-02
loaded with explosives at pay and park lot in front of Hotel Taj at Gateway of India on 25.8.2003. She also accompanied accused no.2 bomb Ashrat in on 28.7.2003 of while no. planting 340 at
BEST
bus
route
Andheri which was exploded at Karani lane, Ghatkopar at about 21.10 hrs on 28.7.2003. It is thus submitted by Spl.P.P. Mr.Nikam that accused nos. 1 to 3 knew consequences of their acts which were the result of deep rooted conspiracy hatched by them with the aid of Pakistani nationals. It would be
therefore
mockery
of
justice
if
death
sentence is not awarded to the offenders.
10
Spl.P.P.
has
pressed in
into
service of his
following argument. (a)
citations
support
Machi
Singh
V/s 470
State
of
Punjab
(1983) 3 SCC (b)
ADV Ram V/s MUKNA And Others 2005 SCC (Cri) 1635
(c)
Sevaka Perumal & Another V/s State of Tamilnadu 1991 SCC (Cri) 724.
(d)
Devender Pal Singh V/s State of NCT of Delhi & Another 2002 SCC (Cri) 978.
(e)
State
through
Superintendent
of
Police, CBI/SCI V/s Nalini & Others 1999 CC(Cri) 691 (f) Bachan Singh V/s State of Punjab 1980 SCC (Cri) 580.
The following guidelines emerge from Bachan Singh's (i) case:The extreme penalty of death need
not be inflicted except in gravest cases of extreme culpability. (ii) the Before opting for the death penalty circumstances to be of the into offender also
require
taken
consideration
along with the circumstances of the crime. (iii) death Life imprisonment is the rule and sentence must is be an exception. only an when Death life
sentence
imposed to
imprisonment
appears
be
altogether
inadequate punishment having regard to the relevant circumstances of the crime and
provided, and only provided the option to impose sentence of imprisonment for life
cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant
circumstance. (iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn up
and
in
doing have a
so to
the be
mitigating full to be the
circumstances weightage struck and
accorded has
just the
balance
between
aggravating
and
mitigating circumstances before the option is exercised.
11
In
order
to
apply
the
above
guidelines following questions may be asked and answered which are given in Machhi
Singh & Others V/s State of Punjab AIR 1983 Supreme Court 957. (a) the Is crime there something renders uncommon about of
which
sentence
imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime
such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating
circumstances which speak in favour of the offender?
12
Special upon
P.P.
Mr.Nikam 59
has of
placed case
reliance
paragraph
the
Devender Pal Singh
V/s State of NCT of
Delhi and Another 2002 SCC (Cri) 978, there was explosion of bomb in a car on 11.9.1993 and in the said blast 9 persons died and several persons including the President of Indian Youth Congress(I) sustained injuries and The several Hon'ble vehicles Apex were Court also damaged. in
observed
paragraph 59 as under: As the factual scenario of the
present case shows, at least nine persons died, several persons were injured, were a
number of vehicles caught fire and destroyed on acts. The in conception account of the
perpetrated
dastardly acts were diabolic and cruel in execution. described
Terrorists
who are
sometimes
as
death merchants
have no respect for lose their
human life. Innocent persons lives because Any
of mindless killing by them. for such persons would
compassion
frustrate the purpose of enactment of TADA, and would amount to misplaced and
unwarranted sympathy. Death sentence is the most appropriate sentence in the case at
hand, and learned trial Judge has rightly awarded it .
13
In a case Sevaka Perumal & Another
V/s State of Tamil Nadu 1991 Supreme Court Cases (Cri) 724, it is observed by the
Hon'ble Apex Court
as under:
Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine confidence in the efficacy the of law, public and under do not
society cannot long serious threats. If
endure
the courts
protect the injured, the injured would then resort to private vengeance. It is,
therefore, the duty of every court to award proper sentence having regard to the nature
of the
offence and the
manner in
which it was executed or committed etc.
14 Mukna
In another case i.e. & Others 2005 Supreme
Adu
Ram V/s Cases
Court
(Cri) 1635, it is opined by
the Hon'ble
Apex Court that the courts are required to mould the sentencing The system of to meet the
challenges. who
contagion social
lawlessness and lay it
undermine
order
ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentences. It is further
observed that sentencing process be stern where it should be, and tempered with mercy where it warrants to be. Considering the facts and circumstances of the case, the Hon'ble Apex court also observed as under: it will be a mockery of justice to permit these appellants to escape the
extreme penalty of law when such evidence the lesser
faced
with
and such cruel acts. To give punishment for the
appellants would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such
cases, he understands and appreciates the language of deterrence more than the
reformative jargon .
15
In
the
same
judgment
the
Hon'ble
Apex Court observed in paragraph 16 that any liberal or attitude taking by too of imposing meagre view in
sentences merely on
sympathetic of
account
lapse
time
respect of such offences will be resultwise counterproductive in the long run and
against societal interest which needs to be cared for and strengthened by a string of deterrence system. inbuilt in the sentencing
16
have
gone
through
the
rulings
cited by Advocate Pasbola Ld. Counsel for accused no.3. In Khairnar V/s State a case Prakash Dhawal of Maharashtra 2002
Supreme Court Cases (Cri) 281, accused had killed children brother joint his brother, of brother's wife as and his
because was not
frustration, the Apex
partitioning The Hon'ble
alleged Court
property.
observed that it will be difficult to hold that it is rarest of rare case as
accused was not a menace to the society and he was not continuing threat to the
society.
17
In other case Ediga Anamma V/s State
of Andhra Pradesh 1974 Supreme Court Cases (Cri) 479, the accused, the married woman of 24, was flogged out of her husband's
house by her father-in-law and was living with her parents along with her only child.
She
got
entangled who
with
middle had
aged
widower,
simultaneously
affairs
with another young woman
the deceased.
With the reckless passion of the jealous mistress, she killed her opponent as well as the little baby of the deceased with a chisel. the She also disfigured the face of which was found burnt.
victim
Considering the facts and circumstances of this case, the Hon'ble Apex Court dissolved the death sentence by substituting that accused life was
imprisonment
observing
subjected to expulsion from
conjugal home
and she was the mother of young boy and social and personal factors of the accused were less harsh.
18 State
In (NCT
another of
case
Mohd.
Chaman
V/s
Delhi)
2001
Supreme
Court
Cases (Cri) 278, accused was held guilty of
committing the offences under section 376 and 302 of IPC. He was 30 years old who
had committed rape upon a girl aged about one and half years. In the process of
committing rape injuries inflicted on liver and other parts of the victim resulted in her death. The Trial court imposed death
sentence upon the accused but, the Hon'ble Apex Court observed that appellant cannot be said to be such a dangerous person that to spare his life will endanger to
community. Capital sentence imposed against the accused was set aside.
19
In a case i.e Subhash Chander V/s and others 2001 Supreme Court
Kishan Lal
Cases (Cri) 735, there was enmity between two families. down Members while of deceased were family at held
gunned
they
asleep
night. Trial Court and High Court
four accused persons guilty of the offence under section 302, 307, 148, 450 r/w sec. 149 and 120-B of IPC. Trial Court awarded death general facts sentence but, the and High Court on of life
conspectus commuted
consideration to
the
sentence
imprisonment. The Hon'ble Apex court held despite having of by some death High reservations sentence court, to about life
commutation imprisonment exercised
discretion not be
by
High
Court In the
need same
interfered with .
case the
Hon'ble Apex Court also observed that when two views are possible about the quantum of sentence, a view which favours the grant of life in comparison with death is generally accepted. equated The above four cases cannot be the facts and circumstances
with
with the case in hand as the offences in those cases were committed out of personal
rivalry and for satisfying sexual lust.
20 Fehmida
It is submitted that accused no.3 is having a minor child and
therefore she may not be awarded capital sentence but, the Hon'ble Apex Court in a case of State CBI through SIT V/s Superintendent Nalini & of
Police,
Others
observed that merely because accused no.1 Nalini is a woman and a mother of child who was born while she was in custody be the ground not to award the cannot extreme
penalty to her.
21
In
the
present
case
accused
no.1
Hanif underwent handling bombs. for same fire
training in Pakistan of arms and preparation of
He used that knowledge and skill the bombs and at explode Mumbai the on
preparing in a
crowded
places
2.12.2002, 28.7.2003 and 25.8.2003 with the assistance accused of his as wife accused no.3 and
no.2
well
as
deceased
Nasir.
Only two persons were died in the explosion of the bomb which took place in BEST bus of route no.340 of Ghatkopar persons on 28.7.2003. to
Therefore
accused
decided
explode powerful bombs so as to cause the death of maximum obtained persons. Deceased sticks Nasir from
therefore
gelatine
Hyderabad in 4-5 bags, each bag contained 500 sticks and by the use of those sticks time bombs at were Zaveri prepared Bazar and which were of
exploded India on
Gateway
25.8.2003.
Accused
persons
have
exhibited extreme brutality in taking lives of 54 innocent persons and causing injuries to 244 persons by exploding the bombs.
They did not do the above acts as a result of emotional outburst but, there act was
well designed and preplanned. shown total the disregard act of for
They have life by
human of
enjoying persons.
killing
innocent
It is therefore rightly submitted
by Special P.P.Mr.Nikam that this is not a case of killing of 54 persons but, it is a massacre of 54 innocent persons who were helpless. Participation of accused no.3 in
causing bomb blast was not the result of her helplessness on account of dominance of her husband but it was her well designed action with free-will. Since the accused
persons are blood- thirsty, therefore there is no scope for their reformation and rehabitation. circumstances Taking lives Therefore are of present 54 no in mitigating this case. and
innocent/helpless
undefended
persons and causing injuries to
244 persons and damaging the property worth Rs.1,60,00,000/by exploding bombs at
crowded places in Mumbai is a most cruel act for which sentence of imprisonment for life would the be quite inadequate. and After
weighing
aggravating
mitigating
circumstances of the case, I am of the view that this is the classic example of rarest of the rare case. The incident of bomb
blasts which resulted in heavy casualties had shaken the collective conscience of the society, capital will only be is satisfied awarded if to the the
punishment
offenders. I therefore award death sentence to accused nos.1 to 3 for their committing mass doing murders of 54 innocent in pass persons by I
terrorist proceed
acts to
Mumbai. the
therefore order.
following
O R D E R 1 Accused No.1 Sayyed Mohd. Hanif
Abdul Rahim aged about 47 years, accused
no.2 Ashrat @ Arshad Shafiqu Ahmed Ansari aged about 33 years and accused no.3
Fehmida w/o Sayyed Mohd. Hanif aged about 45 years are convicted of the offence
punishable under section 120-B of IPC for hatching criminal conspiracy of causing
bomb blasts in Mumbai and are sentenced to death and to pay fine of Rs.5,000/- each failing to which they shall suffer R.I. for two years.
They are convicted of the offence 120-B r/w section
punishable under section
302 of IPC and are sentenced to death and to pay fine of Rs.5,000/- each failing to which they shall suffer R.I. for two years.
They
are
also
convicted
of
the
offence punishable under section 120-B of IPC r/w section 307 of IPC and are
sentenced to imprisonment for life and to pay fine of Rs.5000/- each and in default to suffer further R.I. for three years.
Accused nos. 1 to 3 are convicted of
the offence punishable under section 120-B r/w section 427 of IPC and are sentenced to suffer R.I. for two years.
5 of the
Accused nos.1 to 3 are held guilty offence punishable under section
120-B of IPC r/w section 3 (2) (a) of the Prevention of Terrorism Act 2002 and are sentenced to death and to pay fine of Rs. 50,000/- each in default to suffer R.I. for three years.
6 offence
They
are
also
convicted section
of 3(3)
the of
punishable
under
The Prevention of Terrorism Act 2002 and
are sentenced to imprisonment for life and to pay fine of Rs.5,000/- each in default to suffer R.I. for two years.
7 offence
They are further convicted of the punishable under section 4(b) of
The Prevention of Terrorism Act 2002 and are sentenced to imprisonment for life
and to pay fine of Rs.1 lac each and in default of payment of fine to suffer R.I. for three years.
Accused nos.1 to 3 are convicted of
the offence under section 5 r/w section 9-B of Explosives Act 1884 and are sentenced
to suffer R.I for two years.
They are held guilty of the offence under section Act 3 1908 of and The are
punishable Explosive
Substances
sentenced to imprisonment for life.
10
They
are
also
held
guilty
of
the The are
offence punishable under section 4 of Explosive Substances Act 1908 and
sentenced to suffer R.I. for 20 years.
11
Accused Nos. 1 to 3 are convicted of
the offence punishable under section 3 of The Prevention of Damage to Public Property Act 1984 and are sentenced to suffer R.I. for five years and to pay fine of Rs.
1,000/- each and in default of payment of fine to suffer further R.I for six months.
12
Accused Nos.1 to 3 are convicted of
the offence punishable under section 4 of The Prevention of Damage to Public Property Act 1984 and are sentenced to suffer R.I. for seven years and to pay fine of Rs.
2,000/- each and in default of payment of fine to suffer further R.I for six months.
13
Accused nos. 1 to 3 are acquitted of
the offences punishable under section 120-B r/w section 5(1) of The Prevention of
Terrorism Act 2002 and under section 20 of The Prevention of Terrorism Act 2002.
14
They
are
also
acquitted
of
the
offences punishable under sections 5 and 6 of The Explosive Substances Act 1908.
15
Substantive
sentences
shall
run
consecutively.
16 since
Accused nos.1 and 3 are in custody 1.9.2003 and accused no.2 is in
custody since 31.8.2003 therefore they are given benefit of set off as per section 428
of Cr.P.C.
17
Accused nos.1 to 3 who are sentenced
to death, for committing the offences under sections 120-B, 120-B r/w section 302 of IPC and under section 120-B r/w section 3 (2) (a) of The Prevention of Terrorism Act 2002, shall each be hanged by the neck till they are dead.
18
Convicted persons (Accused Nos. 1 to
3) be committed to jail custody as per subsection (2) of section 366 of Cr.P.C.
19 to the
Proceedings of the case be submitted Hon'ble High Court as per sub-
section (1) of section 366 of Cr.P.C. for confirmation of the death sentence.
20
Order
regarding
the
disposal
of
seized
muddemal
property A
is
passed
separately at Annexure
sd/(M.R. PURANIK) Judge, Special Court, Under POTA ACT,2002 Greater Bombay
06/08/2009
dbm/ssb
IN
THE SPECIAL COURT CONSTITUTED UNDER THE PREVENTION OF TERRORISM ACT, 2002 AT GREATER BOMBAY
PART-I OF THE JUDGMENT IN POTA SPECIAL CASE NO. 1 OF 2004
The State of Maharashtra (At the instance of DCB CID., Mumbai, vide C.R.No.157/02, 75/03, 91/03 and 206/03)
] ] ] ]Complainant.
Versus Sayyed Mohd. Hanif Abdul Rahim and others. ] ]accused.
Dated: 6th August, 2009
Pota Spl.Case 1/04
ANNEXURE-A
ORDER REGARDING DISPOSAL OF MUDDEMAL PROPERTY
Following
articles
of
seized
muddemal
property be disposed of in the manner shown below after the expiry of one year.
i)
Following articles of Muddemal property be destroyed
Articles No.2, 2/A, 4/A, 9/A, 9/B, 9/C, 10, 12, Art No. 12/A to 12/J, Part of 12/L Wallet
14/A, 14/B, 15 (Colly.), 15/A (colly.), Part of 16 (colly.) colour 3 visiting 17 cards, (colly), identity Part of card, Art black No.18
wallet,
(colly.)(cardboard and label), (colly.)(cardboard and label), (colly.)(cardboard and label),
Part of Art.No.19 Part of Art No.20 21 (colly), 22
(colly), Part of 23 (colly.) (White cardboard and label), Part of Art No. 24 (colly.) wrapper bearing label, Art.No.25 (colly), Art.No.26 colly) Art.27
colly.
Art.No.30,
Art.No.30-A
to
Art.No.30-C,
Art.No.32, Art.No.32A Art.No.33/A to 33/D wrapper, label green colour polythene bag & another wrapper, Art.No.34 Art.No.36. Art.No.34-A&B, No.36-A&B Art.No.35, Art.No.35-A&B, Art.37-A&B
Art.No.37
and
Art.No.38, Art.38-A&B, Art.39 and Art.No.39A to E Art.No.40, Art.No.40-A&B, Art. No.41,Art. No.41-A&B Art.No.42, Art. No.42-A&B, Art.No.43, Art.No.43-A&B Art.No.44(colly), Art.No.44-A&B, Art.47 to Art-65
Part of Art.69 i.e. 2 SIM cards, Art.No.-70-70/A, 70/B, Part of Art.No.71 (colly) two driving
licences, 3 ATM slips, 6 paper chits, one diary & one black wallet, Art.No.79(colly), twicely marked article Nos.19, Art.No.20, Art.No.22, Art.No.27,
Art.No.32, Art.NO.35 and Art. No.45.
ii)
Following articles be returned persons named hereunder. Article No.1 Regzine taxi be packet returned
to
the
containing to PW-15
papers
of
motor
Mr.Shivnarayan Pandey, Art.No.3 Video cassette, Art.
4 (colly) be returned to DCB CID, Mumbai, Art.No 11 and Art. No.11/A be returned to PW-32 Indramani
Upadyay Part of Art. No. 16(colly) i.e one passport, be returned to Ms. Farheen, daughter of accused no.1 and 3.
iii)
Muddemal Articles to be preserved. Article No.5 to Art.No.8, Art.No.45, Art.
No.77 and Art. No.78 be preserved till the decision of Writ Petition No. 2539/2008 and Appeal NO.4 of 2009 filed by State against Accused Batterywala and Ladduwala. iv) Following Muddemal property to be confiscated to the Government
Article No.12K, Part of Art. No.12L i.e one currency note of Rs.10, Part of Art.No.16(colly)i.e Rs.127, Part of Art. No.71(colly) i.e one note of Rs.100 and Rs.1182, two passports of accused no.1 Mohd. Hanif and one passport of accused no.3 Fehmida and one cab badge of accused no.1 be confiscated to
Govt. v) Following items of Muddemal property besold in public auction and sale proceeds thereof be deposited to the Government. Article No.14(colly), Part of Art.No.18 (colly.) i.e Soldering machine, Part of Art.No. 19(colly) i.e 8 Alarm clocks, Part of Art.No.20 clipper machine, Part of Art.No.23 i.e tightening machine Part of Art.No.24 i.e one alarm clock, Part of Art. No.33 i.e one alarm clock and part of Art.No.69 i.e one Nokia mobile phone.
vi) 29
Article No.13, 13/A/B, 28 (colly), Art.No. (colly), Art No.31 & 31/A/B, Art No.67 and
Article No. 68 be handed over to the office of Commissioner of Police for disposal according to law. sd/(M.R.PURANIK) Judge, Special Court, Under POTA Act, 2002, Greater Bombay 06/08/2009

Gateway of India Bomb Blast Case POTA Court Mumbai Judgement

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Gateway of India Bomb Blast Case POTA Court Mumbai Judgement

Uploaded by

Copyright:

Available Formats

1Pota.Spl.

1.Sayyed Mohd. Hanif Abdul Rahim]

2004 vide order dated 17/11/2008 passed on Exh.D-116

: 27/07/2009 & 06/08/2009

lodged by API Tanaji Jadhav (PW-63). 3.

Immediately after the occurrence, officers

thereafter PSI Girish Gode (PW-58)

articles, PSI Girish Gode by way of

The suspected articles were

C.R.was taken over by DCB CID vide C.R.No.157 of 2002.

Second incident of bomb blast occurred on

Investigation into C.R.No. 235 of 2003

by the officers of Ghatkopar Police Panchanama of

station from 28.7.2003 to 31.8.2003.

Pieces of tins, metal

Third and fourth incident of bomb blast took

above day at about 12.40 hrs there was powerful bomb

purpose of analysis. damaged taxi was also

Number plate of the above found lying on the spot.

vehicles upto 200 meters from the scene of offence.

It took near about seven hours for PI Shri

at 13.05 hrs. on 25.8.2003 in a motor taxi bearing

It was police constable Shri Camilo Jokim

presence of panchas i.e. Mukhtar Abdul

(PW-17) and Mohd. Hakim Mohd. Salim Shaikh.

Shri Kartik Pradhan (PW-16) was serving at

Shivnarayan Station and

Thus in all 54 persons were killed and 244

Police Station) and C.R.No.86 of 2003 (C.R.No.206/03 of Colaba Police Station).

(PW-50) and Shri Vijay Kadam. Following articles

accused Ansari. ii)

Identity Card issued by Janata party

mentioned. v) A white paper chit mentioning the

S.M.Hanif and the

amount of Rs.2,200/- and other miscellaneous articles.

informed and his

He further spoke that he was ready to

Ashrat was thereafter taken

towards loft of the room where by him and his associates.

cupboard of the house:

bearing No.Q-548661 dtd. 15.10.80 issued by

Mumbai Passport Office.

Passport in the name of accused No.1 No.P-468148 dt.11.9.93 issued by

Jeddah Passport office.

Passport in the name of acused No.3

by Mumbai passport Office.

resident of Philton, Dubai, Jumeria.

Shiraj Electricals on the overleaf of the card.

Visiting card of Aziz in the name of

mentioned on its overleaf.

Wallet containing cash of Rs.127/-

in one cloth bag of khaki colour.

Soldering machine along with plug

9 alarm clocks in various sizes of

One clipper of Super Eagle Co.(12

One polyester Filament Yarn role of

one solder wire role. one polyester Yarn fitting machine

(Super eagle make).

16 crackers of red colour.

One cardboard box was also found kept on the

was found mentioned on each

which was found locked.