Holding

The conviction of all accused-appellants is affirmed, with the death sentence confirmed for Yakub Abdul Razak Memon (A-1) and commuted to rigorous imprisonment for life for the other ten appellants, based on the evidence including confessions, approver testimony, and recoveries, and life imprisonment means the whole natural life subject to remission and clemency powers.

Summary

On March 12, 1993, a series of 12 bomb explosions occurred in Bombay, killing 257 people and injuring 713, with property damage worth Rs. 27 crores. The conspiracy was hatched by Tiger Memon and Dawood Ibrahim, with Yakub Abdul Razak Memon (A-1) playing a key role. The Designated Court convicted 100 accused, sentencing 11 to death. The Supreme Court considered appeals against conviction and death sentence. The Court held that the confessional statements, approver testimony, recoveries, and other evidence established the guilt of all appellants. The conviction of all accused was affirmed. The death sentence of A-1 was confirmed, while the death sentences of the other ten appellants were commuted to rigorous imprisonment for life, meaning imprisonment for the remainder of their natural lives, subject to remission and clemency powers. The Court also discussed the law on conspiracy, confessions, sentencing, and the roles of police, customs, and coast guards in preventing terrorism.

Issues considered

Whether the impugned judgment was valid under Sections 353, 354, 362, and 363 of the Code of Criminal Procedure?
Whether the prosecution proved the charge of criminal conspiracy beyond reasonable doubt?
Whether the confessional statements recorded under Section 15 of TADA were admissible and sufficient to convict the accused and co-accused?
Whether the grant of pardon to the approver under Section 306 of the Code was valid in a TADA case?
Whether the evidence of the approver required corroboration and was sufficiently corroborated?
Whether the death sentence imposed on the appellants was appropriate, considering aggravating and mitigating circumstances?
Whether the sentence of life imprisonment means imprisonment for the whole natural life?
Whether the procedure for recording confessions by police officers was valid?
Whether the retraction of confessions affected their evidentiary value?
Whether the identification parades conducted by Special Executive Magistrates were valid?
Whether the recoveries and panchnamas were admissible in evidence?
Whether the role of Pakistan, police, customs, and coast guards in the blasts was relevant?

Legislation cited

Arms Act, 1959s. 25(1-A), s. 25(1-B)(a), s. 3, s. 7
Code of Criminal Procedure, 1973s. 100, s. 164, s. 174, s. 21, s. 235, s. 306, s. 307, s. 308, s. 353, s. 354, s. 362, s. 363, s. 432, s. 433, s. 433-A
Constitution of Indias. 161, s. 72
Explosives Act, 1884s. 9-B(1)(a), s. 9-B(1)(b), s. 9-B(1)(c)
Explosive Substances Act, 1908s. 3, s. 4(a), s. 5, s. 6
Indian Penal Code, 1860s. 120-B, s. 201, s. 212, s. 302, s. 307, s. 324, s. 427, s. 435, s. 436
Prevention of Damage to Public Property Act, 1984s. 4
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 15, s. 20, s. 21, s. 3(2)(i), s. 3(3), s. 3(4), s. 5, s. 6

Subjects

Terrorist and Disruptive Activities (PREVENTION) ACT, 1987PENAL CODE, 1860CONFESSIONSENTENCELIFE IMPRISONMENTTERRORISMCONSPIRACYAPPROVERPARDONDEATH SENTENCECODE OF CRIMINAL PROCEDURE, 1973CONSTITUTION OF INDIA, 1950

Judgment

••

1
\.

[2013] 15 S.C.R. 1

YAKUB ABDUL RAZAK MEMON A
v.
THE STATE OF MAHARASHTRA, THROUGH CBI,
BOMBAY
PART-I
(Appeals relating to death sentence) B
(Criminal Appeal No. 1728 of 2007 ETC.)

MARCH 21, 2013.
[P. SATHASIVAM AND DR. 8.S. CHAUHAN, JJ.]
c
TERRORIST AND DISRUPTIVE ACTIVITIES
(PREVENTION) ACT, 1987:

SS. 3(3) of TADA and S. 120-B /PC rlw SS. 3(2)(i), 3(3),3(4),
5 and 6 of TADA - Serial bomb blasts in Bombay in March, 0
1993 - Conviction and death sentence to 11 accused-
appellants by Designated Court - Held: The confessional
statements of accused and co-accused as a/so the evidence
of approver and other prosecution witnesses, the recoveries
made and other evidences, establish the guilt of all accused-
appellants - Their conviction affirmed - The sentence of dea.th E
to first accused-appellant affirmed - Sentence of remaining
ten, accused-appellants commuted to rigorous imprisonment
for life - Life imprisonment means the whole natural life -
Therefore, subject to ss. 432 and 433 of the Code and
clemency powers of President and Governor under Arts. 72 F
and 161 of the Constitution, the ten accused-appellants shall
be imprisoned for life until their death - The executive should
take due consideration of judicial reasoning before exercising
the remission power - Penal Code, 1860 - ss. 120-B, 302,
307, 324, 427, 435, 436, 201 and 212 - Arms Act, 1959 - ss. G
3, 7, 25 (1-A), (1-BO - Explosives Act, 1884 - ss. 9-B (1 )(a)
(b), and (c)-Explosive Substances Act, 1908 - ss. 3, 4(a), 5
and 6 - Prevention of Damage to Public Property, Act, 1984
- s. 4 - Code of Criminal Procedure, 1973 - ss. 432 and 433
1 H
2 SUPREME COURT REPORTS [2013] 15 S.C.R.

A - Constitution of India, 1950 - Arts. 72 and 161.

PENAL CODE, 1860.

s. 120-8 - Criminal conspiracy - Explained - Held. To
bring home the charge of conspiracy within the ambit of s.
B 120-8, it is necessary to establish that there was an
agreement between the parties for doing an unlawful act -
Conspiracy, apart from being a substantive offence and
distinct. from the offence to be committed for which the
conspiracy was entered into, all conspirators are liable for the
C acts of crime of each other which have been committed as a
result of the conspiracy - Conspiracy is a continuing offence
and if any acts or omissions which constitute an offence are
done in India or outside its territory, the conspirators continue
to be the parties to the conspiracy and since part of the acts,
D in the instant case, were done in India, they would obviate the
need to obtain the sanction of the Central Government - All
of them need not be present in India - Conspiracy may be a
general one and a smaller one which may develop in
successive stages -Since conspiracy is hatched in secrecy,
E to bring home the charge of conspiracy, it is relevant to
decide from the facts of the case, conclusively the object
behind it which is the ultimate aim of the conspiracy - Further,
many means might have been adopted to achieve this
ultimate object - The means may even constitute different
F offences by themselves, but as long as they are adopted to
achieve the ultimate object of the conspiracy, they are also
acts of conspiracy - In order to determine whether conspiracy
was hatched, the court is required to view the entire agreement
and to find out as to what, in fact, the conspirators intended
G to do - In the instant case, a common charge of conspiracy
was framed against all the co-conspirators - Court is satisfied
that prosecution has placed sufficient acceptable materials to
prove the charge of conspiracy beyond reasonable doubt -
Evidence Act, 1872 - s. 10.

H
YAKUBABDUL RAZAK MEMON v. STATE OF 3
MAHARASHTRA, THR. CBI , BOMBAY

CONFESSION: A

Evidentiary value of confession - Held: s. 164 of the
Code speaks about recording confessions and statements,
and s. 15 of TADA is a similar provision - If the confessional
statement is properly recorded satisfying the mandatory
8
provision of s. 15 of TADA and the Rules made thereunder,
and if the same is found by court as having been made
voluntarily and truthfully, then the said confession is sufficient
to convict the maker thereof - Whether such confession
requires corroboration or not is a matter for the court to
consider on the basis of facts of each case - Terrorist and C
Disruptive Activities (Prevention) Act, 1987 - s. 15 - Code
of Criminal Procedure, 1973 - s. 164.

Confession as against a co-accused - Held: As a matter
of caution, a general corroboration should be sought for - D
But in cases where the court is satisfied that the probative
value of confession is such that it does not require
corroboration then it may record conviction on the basis of
such confession of co-accused without corroboration - In the
instant case, confessional statements of co-accused persons E
are admissible as primary and substantive evidence against
appellants notwithstanding the amendment by Act 43of1993.

TERRORIST AND DISRUPT/VE ACTIVITIES·
(PREVENTION) ACT, 1987:
F
s. 15 (as amended by Amendment Act 43of1993) rlw s.
21 - The words "or co-accused, abettor, or conspirator" and
the proviso to s. 15(1) were added by way of an amendment
on 22.5.1993 - In the event of un-amended TADA as it stood
prior to 22. 5. 1993 were to apply, there would be a presumption G
of guilt against appellants pursuant to un-amended s. 21,
since confession of other co-accused would implicate them
for the offence of conspiracy - However, the amendment of
1993 did not bring about any change as to the admissibility
and applicability of confession of co-accused - Code of H ·
4 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Criminal Procedure, 1973 - s. 164.

Recording of confession by Police Officer - Held: No
illegality persists in recording a confession u/s 15 of TADA
by an officer supervising the investigation.
B Transmitting of confessional statement - Held: The
requirement of sub-r. (5) o r. 15 of TADA Rules, which
contemplates a confessional statement being sent to Chief
Metropolitan Magistrate or Chief Judicial Magistrate, who, in
turn, will haye to send the same to the Designated Court, is
C not mandatory and is only directory- Terrorist and Disruptive
Activities (Prevention) Rules, 1987- r. 15(5).

Retractions - Held: Where original confession was truthful
and voluntary, court can rely upon such confession to convict
0 the accused in spite of a subsequent retraction and denial in
statement u/s 313 CrPC.

CODE OF CRIMINAL PROCEDURE, 1973:

s. 306 - Grant of pardon and evidentiary value of
E statement of approver - TADA does not preclude
applicability of s. 306 - Therefore, power to grant pardon u/s
306 also applies to cases tried under TADA and there was
no infirmity in the order granting pardon to approver in the
facts and circumstances of the case - Further, the provisions
F of sub-s. (4) of s. 306 have not been violated - In the light of
provisions of s. 133 rlw s. 114 Illus. (b) of Evidence Act,
evidence of an approver needs to be corroborated in material
particulars - In the instant case, it has been so corroborated
by way of primary evidence by prosecution - Terrorist and
G Disruptive Activities (Prevention) Act, 1987 - ss. 7 and 21 -
Evidence Act, 1872 - s. 133 rlw s. 114 Illus. (b).

Chapter XXVll - ss. 353, 354 362 and 363 - Judgment
- Held. Judgment in a criminal case indicates the termination
of the case by an order of conviction or acquittal of the
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 5
MAHARASHTRA, THR. CBI , BOMBAY

accused and judgment is to be rendered in strict adherence A
to the provisions of Chapter XXVI/ of the Code - Every
judgment must contain: (1) the points for determination; (2)
the decision thereon; and (3) the reasons for such decision
- A conviction order is not a 'judgment" as contemplated u/
s 353 and judgment is pronounced only after the award of B
sentence - ·in the case on hand, Designated Court has dealt
with the issue of pronouncing the judgment uls 353(1) (c) in
detail.

s. 235 rlw s. 354(3) - Right of hearing to the accused
on the question of sentence - There is bifurcation of trial as C
an accused has a right of pre-conviction hearing u/s 234 and
secondly right of pre-sentence hearing uls 235 of the Code
-The occasion to apply the provisions of s. 235(2) arises only
after the conviction is recorded - The court, while on the
question of sentence, is in an altogether different domain D
where facts and factors which operate are of an entirely
different order than those which come into play on the
question of conviction - Where the court imposes death
sentence, both s. 235(2) and s. 354(3) assume signal
significance and they must be harmoniously and conjointly E
appreciated and read - Fairness, justice and
reasonableness which constitute the essence of guarantee of
life and liberty epitomised in Art..21 of the Constitution also
pervades the sentencing policy in ss. 235(2) and 354(3) of the
Code - These two provisions virtually assimilate the concept F
of "procedure established by law" within the meaning of Art.
21 of the Constitution -In the instant case, requirements of
pronouncing a judgment uls 353(1)(c) of the Code have been
fully complied with - There is no illegality or irregularity in
the process followed and specifically ulss 353, 354 and 235 G
keeping in mind the magnitude of the task before the
Designated Judge - The pronouncement of judgment was
in compliance with the provisions of the Code and does not
violate any of its provisions - Constitution of India, 1950 - ·
Art. 21.
H
6 SUPREME COURT REPORTS [2013] 15 S.C.R.

A SENTENCE!SENTENCNG:

Balancing of aggravating and mitigating circumstances
- Held: After the new CrPC of 1973, imprisonment for life
would be the rule and a sentence of death an exception -
Amended s. 354(3) of the Code mandates that in me case
8
of sentence of death, the judgment shall state the special
reasons for such sentence - The judiciary with the aid of s.
235(2) ascertained the 'special reasons' pertaining to
criminals as required bys. 354(3) to impose death penalty -
A careful evaluation of aggravating and mitigating
C circumstances pertaining to both criminal and crime is the
approach to ascertain the 'special reasons' for imposing the
extreme penalty on a person - Thus, two cardinal factors: (i)
the penalty imposed must be proportionate to the gravity of
the crime and (ii) the degree of responsibility of the offender
D must be taken into account in determining the sentence for
an individual accused in addition to aggravating and
mitigating circumstances - Code of Criminal Procedure, 1.973
- ss. 235(2) and 354(3)-Terrorist and Disruptive Activities
(Prevention) Act, 1987 - s. 3(2)(i) - Penal Code, 1860 - s.
E 302.
QUANTUM OF SENTENCE:

Complicity of first accused-appellant - Sentence -
Held: First accused- was in a position of authority, particularly,
F he had played a significant role in the context of the blasts,
which is important while determining the sentence - He was
one of the architects of the blasts, without whom the plan would
have never seen the daylight - Besides, he was a/so
entrusted with the task ofhandling the explosive bags and
G for their safe keeping - He was actively involved in hawala
transactions for purpose of facilitating the blasts - Without the
planning of conspirators of which first accused was a party,
the explosives and ammunition required for the execution
would not have entered into the country and as a
H consequence the execution itself would not have materialized
YAKUB ABDUL RAZAK MEMON v. STATE OF 7
MAHARASHTRA, THR. CBI , BOMBAY

- Therefore, it can be concluded that no offence might have A
taken place at all but for the instigation by the absconding
accused and the first accused-appellant -Besides, the
dominant position of first accused is an aggravating factor by
itself as it gives the status of direct responsibility - Under the
established jurisprudence, two factors - (i) a commanding B
position and (ii) a crime of 'utmost gravity' ordinarily merit the
extreme penalty even accounting for the guilty plea and
mitigating factors - This is the 'special reason' which warrants
death penalty to first accused- appellant - Therefore, having
taken into account and weighed the totality of culpability of first C
accused-appellant and all the particular circumstances of the
case, the decision of Designated Court is concurred with and
the sentence of capital punishment to first accused-appellant
is confirmed.

Complicity of other ten co-accused-appellants - D
Sentence - Held: The role played by the other ten accused-
appellants differentiates with that of the first accused-appellant
- First accused-appellant and other absconding accused were
the archers whereas the rest of the accused- appellants were
the arrows in their hands - Though the incident of bomb E
blasts is not a brainchild of these ten accused-appellants, yet
they turned the conspirators' orders into action by executing
the blasts and, as such, they are liable for the consequence
of their acts - It is actually the masterminds strategy which was
executed by these ten subservient minions, as but for the F
masterminds, the blasts shoum have never seen the daylight
- This may not help in complete exoneration of their liability
but the degree of punishment must necessarily reflect this
difference -Keeping in view the aggravating factors and
mitigating circumstances and to differentiate the degree of G
punishment to the fist accused-appellant and other ten
accused-appellants, the ends of justice would be served if the
death sentence of these ten appellants is commuted to
rigorous imprisonment for life - However, the lesser sentence
imposed on these appellants cannot be a precedent in other H
8 SUPREME COURT REPORTS [2013) 15 S.C.R.

A cases and every case must be decided according to its facts
and circumstances.

Life imprisonment as rigorous imprisonment - Held:
"Imprisonment for life" is to be treated as 'rigorous
imprisonment for life''.
8
Life imprisonment - Duration of - Held: Life
imprisonment always means the whole natural life - There
is a misconception that a prisoner serving life sentence has
an indefeasible right to release on completion of either 14
C years or 20 years imprisonment - A convict undergoing life
imprisonment is expected to remain in custody till the end of
his life, subject to any remission granted by appropriate
Government u/s 432 of the Code, which in tum is subject to
the procedural checks mentioned in the said provision and
D to further substantive check in s. 433-A of the Code- Code
of Criminal Procedure, 1973 - ss. 432 and 433-A.

CODE OF CRIMINAL PROCEDURE, 1973:

ss. 432, 433 and 433-A - Power to remit/commute
E sentence - Held: Exercise of power by appropriate
government under sub-s. (1) of s. 432 cannot be automatic
or claimed as a right as this is only an enabling provision and
subject to fulfilment of certain conditions mentioned in Jail
Manual or in statutory rules - Decision to grant remission has
F to be .well informed, reasonable and fair to all concerned -
Constitution of India, 1950 - Arts. 72 and 161.

/DENT/FICA TION:

Test identification parade - Held: s. 20 of TADA rlw s. 21
G of the Code permits Special Executive Magistrate to carry out
such functions as are required in a TADA case and in the
instant case, identification parades were conducted by Special
Executive Magistrates in compliance with provisions of ·
Criminal Manual - Terrorist and Disruptive Activities
H (Prevention) Act, 1987 - s.20 - Criminal Manual -
YAKUB ABDUL RAZAK MEMON v. STATE OF 9
MAHARASHTRA, THR. CBI , BOMBAY

Government Circular, Home Department No. MIS 10541 A
84588 dated 22.4.1955 - Code of Criminal Procedure, 1973
- s. 21.
INVESTIFICATION.·

Recoveries - Panchnama - Mandatory conditions for B
a valid Panchnama, culled out - Circumstances when
Panchnama is inadmissible - Explained - Evidentiary value
of Panchnama - Held: Panchnama can be used as
corroborative evidence when 'Pancha' gives evidence in court
u/s 157 of Evidence Act - It can also be used as evidence of C
recorded transaction so as to refresh the memory of witnesses
u/s 159 of Evidence Act - In the instant case, in view of the
fact that prosecution has led ample corroborative evidence,
Designated Court was fully justified in relying on the
recoveries while accepting the prosecution case - Evidence D
Act, 1872 - ss. 157 and 159 - Code of Criminal Procedure,
1973 - ss. 100 and 174.

TERRORISM:

'Terrorism' - Explained - Held: In spite of several E
international conventions and Multilateral Agreements and
domestic and international legislations to counter terrorism,
it is a major problem that is reoccurring over the globe in
many different forms - There is a dire need to best deal with
it and to make sure to take preventive actions - The Court F
is of the considered view that the procedure/rules s':'ggested
by it in the judgment must have to be adopted while dealing
with the menace.

Role of Pakistan. in blasts - Held: Pakistan has infringed G
the recognized principles of international law which obligate
all states to prevent terrorist attacks emanating from their
territory and inflicting injuries to other states - In the instant
case, accused persons were facilitated by /SI operatives in
Pakistan for training without observing any immigration
H
10 SUPREME COURT REPORTS [2013] 15 S.C.R.

A formalities, and accused received training even from /SI
officials themselves on some occasions - The events unveil
the tolerance and encouragement shown by Pakistan towards
terrorism - International law.

Role of Police Officials - Held: The role of police officials
8
has become more vital owing to frequent terrorist attacks
occurring across the country - If police had been able to
curtail the conveyance of contraband in the country at the
relevant time, the occurrence could have been avoided - In
C the instant case, some of the police personnel themselves
have taken active part in smuggling and transportation of
arms and explosives meant for the plan - Police.

Role of Customs Officials - Held: Customs officials
primarily have a duty to prevent smuggling and ensure that
D everything that enters into or goes out of the country is
brought or sent is strictly in accordance with the provisions of
law-It is shattering to notice that several Customs Officials
played an active role as members of conspiracy and
implemented the plan - A rationally structured and effective
E customs department is needed in order to curtail illegal
imports which can have frightening ramifications upon the
nation's economy and citizens' security - Customs.

Need to improve vigilance in Indian Maritime Zone and
role of Coast Guards - Held: India being a· maritime nation,
F the role of Coast Guards is very vital for shielding the coast
from external attacks - Coast Guards being the strongest link
in the security chain, are bound to be vigilant at sea and
should be in full command of the coast - Only well strategized
coast guards and high morale customs officers can prevent
G any opportunity for terrorists to attack on 01,1r country via our
maritime boundary - Coast Guards.

On 12.03.1993, in a span of about two hours, a series
of 12 bomb explosions took place at twelve different
H locations in Bombay, as a result of which 257 persons
YAKUB ABDUL RAZAK MEMON v. STATE OF 11
MAHARASHTRA, THR CBI , BOMBAY

died and 713 persons were seriously injured, and A
properties worth about Rs. _27 crores were destroyed.
The bombs planted at several other places were diffused.
The investigation revealed that accused 'DI' (AA-1 ), a
resident of Dubai, and accused 'TM' (AA-2) formulated a
conspiracy to commit terrorist acts in the city of Bombay. B
The object of the crime was to incite communal violence
and to overawe and weaken the government, disturb
social harmony and to break up the social, political and
economic order of the country. In conspiratorial meetings
held in furtherance of the object of the crime, c
arrangements were made for sending some of the
accused persons to Pakistan and train them in handling
arms and ammunition, and after such training to. bring
them back to India, for smuggling of firefifhs and
ammunition and explosives like ROX into lndi and their D
landing and trans·portation. Several accuse persons
were involved in preparing vehicle bombs by filling
explosives with time mechanisms in motor vehicles and
parking of the said vehicles at targeted places. Bombs
were planted and hand grenades lobbed at targeted
places. The arrested accused persons made confessions E
and disclosure statements as a result of which a large
number of incriminating articles were recovered. One of
the main conspirators became approver and he was
examined as PW-2. A large number of accused were
involved in the conspiracy and execution thereof. Some F
of them absconded (described as AAs). A total number
of 123 accused were prosecuted out of whom 100 were
convicted by the Designated Court. The instant appeals
were filed by the convicts, who were sentenced to death,
namely, A-1 (the brother of accused AA-2), A-32, A-36, A-
39, A-44, A-10, A-29, A-9, A-11, A-12, and A-16.

Accused A-1 (Appellant in Crl. A. No. 1728 of 2007)
was charged with offences punishable u/s 3(3) of
Terrorists and Disruptive Activities (Prevention) Act, 1987
,.
12 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (TADA) and s. 120-8 IPC read with s. 3(2)(i), (ii), 3(3), (4), 5
and 6 of TADA read with ss. 302, 307, 326, 324, 427, 435,
436, 201 and 212 IPC and ss. 3 and 7 read with ss. 25 (1-
A), (1-B)(a) of the Arms Act 1959. ss/ 98 (1) (a)(b)(c) of the
Explosives Act, 1884, ss. 3, 4(a) (b), 5 and 6 of Explosive
B Substances Act, 1908 and s. 4 of the Prevention of
Damage to Public Property />ct, 1984, for entering into
criminal conspiracy in India and outside India in Dubai
and Pakistan and/or being member of the said criminal
conspiracy whose object was to commit terrorist acts in
c India with the intent to overawe the government of India,
to strike terror in the people, and to adversely affect the
harmony amongst different sections of the people, by
using bombs, dynamites, hand grenades and other
explosive substances like ROX or inflammable
substances or fire arms like AK-56 rifles and other lethal
0
weapons in order to cause death of or injuries to persons
and to damage properties and in pursuance of the said
conspiracy committed the said overt acts (charge head
Firstly). This was the common charge framed against all
E the co-accused. Accused A-1 was also charged with
other offences alleging that he advocated, abetted,
advised, and facilitated the commission of terrorists acts
that resulted in serial bomb blasts in Bombay and its
suburbs on 12.3.1993; arranged finance and arranged air
tickets and made arrangements to enable the co-
F conspirators and accused to undergo weapons training
in Pakistan, purchasing of vehicles and to prepare them
for the purpose of bomb blasts at targeted places,
facilitated smuggling and landing of arms and
ammunitions by AA-2 and his associates for the said
G purpose; being in possession of arms and explosives
smuggled into the country for committing terrorist acts;
and made arrangements for absconding of AA-2 and his
associates and co-conspirators from India. A-1 was
convicted of the offences charged and was sentenced to
H death amongst other terms of imprisonment.
YAKUB ABDUL RAZAK MEMON v. STATE OF 13
MAHARASHTRA, THR. CBI , BOMBAY

Accused A-32, A-36 and A-39 (Appellants in Crl. A. A
Nos. 609-610 of 2008), A-44 (appellant in Crl. A. Nos. 628-
629 of 2008), A-10 and A-29 (appellants in Crl. A. Nos. 637 -
638), -9 (Appellant in Crl. A. No. 365 of 2008), A-11
(appellant in Crl. A. Nos. 864-865 of 2008), A-12 (appellant
in Crl. A. No. 897 of 2008) and A-16 (appellant in Crl. A. B
Nos. 941-942 of 2008), besides having been charged with
common charge of criminal conspiracy under the head
Firstly, were also charged with having committed further
overt acts of receiving training in handling of arms and
ammunitions and explosives in Pakistan, attending c
conspiratorial meetings for committing terrorist acts,
participating in landing and transportation of arms,
ammunition and explosives like ROX, being in
possession of arms and ammunition and explosives
smuggled into India for committing terrorist acts;
D
participating in preparation of vehicle bombs and parking
them at targeted places, taking vans with explosive laden
suitcases to targeted places, planting the bombs at
targeted places, throwing hand grenades at targeted
places, and thereby causing death of several persons,
injuries to many others and damage to properties. These E
appellants were also sentenced to death. They were
further sentenced to various terms of imprisonment.
It was contended for the appellant-A-1 that the
impugned judgment was not a 'judgment' in terms of ss.
F
353, 354, 362 and 363 of the Code of Criminal Procedure,
1973 (the Code), since the reasons for conviction and
sentence were not provided to him along with the order
of conviction and sentence dated 12.9.2006 and
27.7.2007 respectively, and only the 'operative portion'
was read out and after hearing the accused the G
conviction and sentence was imposed, which was
impermissible. It was submitted that in the absence of the
whole judgment, the sentence imposed could not be
sustained; that there was no material to prove that there
was a conspiracy among the accused persons and the H
14 SUPREME COURT REPORTS [2013] 15 S.C.R.

A prosecution failed to prove that A-1 had any knowledge
of any such conspiracy and the bomb blasts on
12.3.1993; that since the prosecution case rested on the
confessional statements of the accused persons and
except A-97 all other had retracted their statements and,
B as such, the conviction and sentence could not be
sustained; that in the absence of any provision in TADA
for pardoning an accused and permitting him to be
approver, and PW-2 not being validly pardoned either
under TADA or the Code, conviction based on his sole
c testimony could not be sustained.
Disposing of the appeals, the Court,
HELD: 1.1. The word "judgment" has not been
defined in IPC, nor even in TADA. The TADA contains: (a)
judgment; and (b) orders. Section 2(9) of the Code of Civil
D Procedure, 1908 defines "judgment" and 0.20, r. 1(1 )(2)
of the Code of Civil Procedure (Madras amendment)
refers "judgment when pronounced" and "judgment to
be signed". In the light of the definition clause, namely,
"judgment" though the same has not been explained in
E the CrPC, the procedure to be followed both in the civil
and criminal cases are all acceptable. [para 21 and 43)
[113-B-E; 126-E-F]
1.2. Judgment in a criminal case indicates the
termination of the case by an order of conviction or
F acquittal of the accused and judgment is to be rendered
in strict adherence to the provisions of Chapter XXVll of
the Code of Criminal Procedure, 1973. Sections 353, 354,
362 and 363 make it clear as to how the judgment is to
be in a criminal trial, language and contents and the
G procedure to be followed in furnishing copy of the
judgment immediately after pronouncement. [para 35 and
43) [123-E; 128-F]
Hori Ram Singh vs. Emperor AIR 1939 PC 43; and
Kuppuswami Rao vs. The King, AIR 1949 PC 1 - referred
H to.
YAKUB ABDUL RAZAK MEMON v. STATE OF 15
MAHARASHTRA, THR. CBI , BOMBAY

1.3. In view of the provisions of s.354 of the Code, it A
is necessary that every judgment must contain: (1) the
points for determination; (2) the decision there~n; and (3)
the reasons for such decision. The reason for the
decision is an important ingredient of a judgment. The
purpose of recording reasons is to facilitate the superior B
court to examine the correctness of the judgment of the
courts below. Compliance with the law in this regard
should not be merely formal but substantial and real, for
it is this part of the judgment alone which enables the
higher court to appreciate the correctness of the C
decision, the parties to feel that the court has fully and
impartially considered their respective cases and the
public to realise that a genuine and sincere attempt has
been made to mete out even-handed justice. Reasons
form the substratum of the decision and their factual
0
accuracy is a guarantee that the court has applied its
mind to the evidence in the case. In Bachan Singh and
Ba/want Singh this Court has held that the judgment shall
state reasons for the sentence awarded and in the case
of sentence of death, the special reasons for such
sentence. [para 31, 36-37] [122-B; 123-F-G; 124-A-E; 125- E
C-E]

Bachan Singh vs. State of Punjab_, AIR 1980 SC 898;
Ba/want Singh vs. State of Punjab AIR 1,976 SC 230 - relied
on F
1.4. It is clear that "judgment" is a formal intimation
of the decision and its contents formally declared in a
judicial way in open court. It is also clear that passing a
sentence without recording the judgment would amount
to illegality. Pronouncing the sentence before completing G
the judgment, that is, before preparing the essential part,
makes the sentence illegal and vitiates the conviction.
[para 42] [128-D-E]

1.5. Right of hearing to the accused on the question H
16 SUPREME COURT REPORTS [2013] 15 S.C.R.

A of sentence is provided u/s 235(2) of the Code. The
purpose of the provision is recognition of new trend in
penology and awarding of sentence taking into
consideration various factors such as the prior criminal
record of the offender, his age, employment, educational
B background, sociological backdrop, family background,
financial position, antecedents, social adjustment,
emotional and mental condition and the prospects of his
returning to normal path in conformity with law. It is in fact
humanist principle of individualising punishment to suit
C the person and his circumstances and, therefore, a
hearing is required before imposition of penalty. [para 27)
[117 -D, F-G]
Santa Singh vs. The State of Punjab 1977 (1) SCR 229
= (1976) 4 SCC 190; Ram Dea Chauhan @ Raj Nath
D Chauhan vs. State of Assam 2001 (3) SCR 669 =AIR 2001
SC 2231; Narpa/ Singh & Ors. vs. State of Haryna, 1977
(2) SCR 901 =AIR 1977 SC 1066; Oagdu & Ors. etc. vs.
State of Maharashtra, 1977 (3) SCR 636 =AIR 1977 SC
1579; Tarlok Singh vs. State of Punjab 1977 (3) SCR 711 =
E AIR 1977 SC 1747; and Kamalakar Nandram Bhavsar &
Ors. vs. State of Maharashtra, AIR 2004 SC 503; Motilal vs.
State of MP. (Now Chhatisgarh 2004 (1) SCR 854 = (2004)
2 sec 469 - referred to.

F Akhtari Bi (Smt) vs. State of MP. 2G01 (2) SCR 626 =
AIR 2001 SC 1528 - relied on.

1.6. The legislative policy discernible from s. 235(2)
read with s. 354(3) is that in fixing the degree of
punishment or making the choice of sentence for various
G offences, including one u/s 302 of IPC, the court should
not confine its consideration "principally" or merely to the
circumstances connected with the particular crime, but
also give due consideration to the circumstances of the
criminal. It is for this reason that court while hearing a
H convict on sentence is required to give a party an
YAKUB ABDUL RAZAK MEMON v. STATE OF 17
MAHARASHTRA, THR. CBI , BOMBAY
opportunity of producing evidente or materials relating A
to the various factors having some bearing on the
question of sentence. Therefore, there is bifurcation of trial
as an accused has a right of pre-conviction hearing u/s
234 and secondly right of pre-sentence hearing u/s 235 of
the Code. [para 31 and 37] [122-D-E; 124-G-H; 125-F-G] B

Allauddin Mian & Ors. Sharif Mian & Anr. vs. State of
Bihar 1989 (2) SCR 498 = AIR 1989 SC 1456 - relied on.

1.7. In Muniappan, this Court has held that the
obligation to hear the accused on the question of C
sentence which is imposed by s.235(2) of the Code is not
discharged by putting a formal question to the accused
as to what he has to say on the question of sentence. The
Judge must make a genuine effort to elicit from the
accused all information which will eventually have a D
bearing on the question of sentence. The occasion to
apply the provisions of s. 235(2) arises only after the
conviction is recorded. The court, while on the question
of sentence, is in an altogether different domain where
facts and factors which operate, are of an entirely E
different order than those which come into play on the
question of conviction. Where the court imposes death
sentence, both s.235(2) and s. 354(3) assume signal
significance and they must be harmoniously and
conjointly appreciated and read. [para 39-40] [126-C-E, F- F
G; 127-8]

Muniappan vs. State of T.N, 1981 (3) SCR 270 =AIR
1981 SC 1220; Rameshbhai Chandubhai Rathod vs. State
of Gujarat, (2009) 5 SCC 740; and Malkiat Singh & Ors. vs.
State of Punjab 1991 (2) SCR 256 = (1991) 4 SCC 341- G
referred to.

1.8. Therefore, fairness, justice and reasonableness
which constitute the essence of guarantee of life and
liberty epitomised in Art. 21 of the Constitution also H
18 SUPREME COURT REPORTS [2013] 15 S.C.R.

A pervades the sentencing policy in ss. 235(2) and 354(3)
of the Code. These two provisions virtually assimilate the
concept of "procedure established by law" within the
meaning of Art. 21 of the Constitution. Thus, a strict
compliance with those provisions in the way it was
El interpreted in Bachan Singh having regard to the
development of constitutional law by this Court is a must
before imposing death sentence. [para 41] [128-B-C]

1.9. Section 353(1) of the Code makes it clear that it
c is incumbent on the part of the Presiding Officer to
deliver the whole of the judgment or by reading out the
operative part of the judgment and explaining the
substance of the judgment in a language which is
understood by the accused or his pleader. [para 43] [128-
D G-H]
1.10. In the instant case, on perusal of the conclusion
in the judgment of the Designated Court with regard to
A-1, it is very much clear that he was apprised regarding
the offences for which he was found to be guilty. While
E A-1 was awarded death sentence, it is clear from the
conclusion that he was apprised that the sentence of
death awarded to him is subject to the confirmation by
the Apex Court and he was also informed that for the said
purpose the Court would be making necessary reference
F to Apex Court within 30 days from the date of completion
of passing of final order. In the same order, the trial court
has also apprised A-1 that it will take some time to
complete the pronouncement of the final order of
conviction and sentence of remaining accused and
G completed the judgment by getting the same transcribed,
corrected and signed. The court also directed the
Sheristedar to handover the 'operative part' of the order
passed on both the days, i.e., 12.09.2006 and 27.07.2007.
[para 45] [132-G-H; 133-A-C]
H
YAKUB ABDUL RAZAK MEMON~v. STATE OF 19
MAHARASHTRA, THR. CBI , BOMBAY
1.11. It is clear that a conviction order is not a A
"judgment" as contemplated u/s 353 and that a judgment
is pronounced only after the award of sentence. In the
case on hand, the Designated Judge pronounced the
operative part of the judgment on 27.7.2007 and explained
the substance of the judgment to the appellant in B
compliance with the requirements of s. 353(1 )(c) of the
Code. A perusal of the final judgment of the Designated
Court shows that he has dealt with the issue of
pronouncing the judgment u/s 353(1) (c) in detail. [para
47] [134-F-H] C

Rama Narang vs. Ramesh Narang & Ors., 1995 (1) SCR
456 = (1995) 2 SCC 513; Lakdey Ashok vs. Government of
A.P., (2009) 6 ALT 677 - referred to.

1.12. Section 354(1 )(c) states that every judgment D
referred to in s. 353 shall specify the offence of which the
accused is convicted and the punishment to which he is
sentenced. In view of the same, the judgment u/s 353(1)(c)
is to be pronounced only after the sentence in a case
where conviction is determined. The process of delivery E
of judgment includes the determination of guilt, or
otherwise, of an accused and in the event of such guilt
being established, also includes the process of
sentencing the accused. In the instant case, the process
of delivery of judgment commenced on 12.09.2006 when F
the court pronounced its verdict on the guilt or otherwise
of specific accused. Whilst doing so, the Designated
Judge explained the offences for which the accused were
being convicted and invited the accused persons to
make their statements with reference to the quantum of G
sentence. It is evident that at this stage, the detailed
1
reasoning may not have been finally communicated to
the accused, but the determination of the court as well
as the broad understanding of the operative part of the
judgment was communicated. [para 52-53] [137-F-H; 138-
B-D] H
20 SUPREME COURT REPORTS (2013] 15 S.C.R.

A 1.13. An analysis of the method followed by the
Designated Judge, demonstrates that the requirements
of pronouncing a judgment u/s 353(1 )(c) of the Code
have been fully complied with. While pronouncing the
operative part of the judgment, the Designated Court
B ensured that the substance of the judgment has been
explained to the appellant in compliance with the
requirement of s. 353. It is also relevant to point out that
the said order dated 27.07.2007 was pronounced in open
court -and signed and dated by the Designated Judge in
c compliance with the requirements of the said section.
Thus, there is no illegality or irregularity in the process
followed and specifically u/ss 353, 354 and 235 keeping
in mind the magnitude of the task before the Designated
Court. This Court, therefore, holds that the
0 pronouncement of the judgment was in compliance with
the provisions of the Code and does not violate any of
its provisions. [para 48 and 54] [136-A-C; 138-E-G]

1.14. It is also clear from the reasoning of the
Designated Court that by adopting the same procedure,
E the Designated Judge conveyed the conclusion with
regard to various charges leveled against other accused
(total convicted accused 100) and also apprised each one
of them, including A-1 as well as their pleaders, the
reasoning and other materials for arriving at such a
F conclusion. He also apprised that because the convicted
accused are 100 in number and the common judgment
is running into thousands of pages, it may require some
time and as soon as the full judgment will be made ready,
the same will be supplied to them free of cost. It does not
G mean that on the date of pronouncing the decision
(decision was pronounced on various dates), the whole
judgment was not ready or it was incomplete. [para 55]
[138-G-H; 139-A-C]

1.15. Regarding the requirement of providing a copy
H
•
YAKUBABDUL RAZAK MEMON v. STATE OF 21
MAHARASHTRA, THR. CBI , BOMBAY
of the judgment in terms of s. 363 of the Code, it is A
significant to note that it was a joint trial of 123 accused
persons. The appellant was apprised of the fact that a
copy of the final judgment would be provided after
completion of the order as regards sentence in respect
of the remaining accused. The process of B
pronouncement of judgment had to be carried out for all
accused and accordingly a copy of the final judgment
could be provided to each of the accused only after the
sentence was pronounced in respect of all the accused
persons. Copy of the final judgment was provided free C
of cost to the appellant (A-1) after the pronouncement of
the orders with respect to each of the accused by the
Designated Court. [para 49-51] [136-D, F-H; 137-B-C]

1.16. As the Code mandates that the accused are
entitled to full/whole judgment, unless the conclusion D
relating to all the convicted accused is read over and
explained to them, opportunity of hearing on sentence
has been provided to them or their respective counsel
and incorporation of both the conclusions relating to
conviction and sentence has been done, the same E
cannot be supplied to the accused. [para 56] [139-C-D]

1.17. Several applications were made to amend the
conviction orders, which were dismissed by the
Designated Court. Neither A-1, nor any of the counsel of
F
accused persons pointed out any amendment that would
attract the provisions of s. 362 of the Code. On the other
hand, there is no alteration/amendment that has been
made in the judgment after its pronouncement. [Para 58]
[140-D-E, F-G]
G
1.18. From the materials placed and after verification
of the decision, this Court is satisfied that the Designated
Court apprised the accused about the contents of the
judgment, and heard all the accused and their pleaders
regarding sentence and, as such, it has complied with the H
22 SUPREME COURT REPORTS [2013] 15 S.C.R.

A requirements of law; and considering the voluminous
nature of work, even if there is mere procedural
irregularity that would not vitiate the trial or the ultimate
conclusion unless the same results in miscarriage of
justice. The impugned judgment and procedure followed
B and adopted by the Designated Court fulfil the mandate
of the Code and there is neither violation of principles of
natural justice nor breach of Arti. 21 of the Constitution.
[para 59] [141-A-D]

Shambhu & Ors. vs. The State AIR 1956 All. 633; Baldeo.
C vs. Deo Narain and Ors. AIR 1954 All. 104; Surendra Singh
& Ors. vs. State of Uttar Pradesh 1954 SCR 330 =AIR 1954
SC 194; Ratia Mohan. vs. The State of Gujarat AIR 1969 Guj.
320; State of Orissa vs. Ram Chander Agarwala & Ors. 1979
(1) SCR 1114 = (1979) 2 SCC 305; Jhari Lal vs. Emperor AIR
D 1930 Pat. 148; State of Punjab and Ors. vs. Jagdev Singh
Talwandi 1984 (2) SCR 50 = (1984) 1 SCC 596; Krishna
Swami vs. Union of India and Ors., 1992 (1) Suppl.
SCR 53 =AIR 1993 SC 1407; K. V. Rami Reddi. vs. Prema
2008 (3) SCR 83 = (2009) 17 SCC 308; Sarojini Ramaswami
E (Mrs.) vs. Union of India & Ors. 1992 (1) Suppl.
SCR 108 = (1992) 4 SCC 506; M. Nagaraj & Ors. vs. Union
.of India and Ors. 2006 (7) Suppl. SCR 336 = (2006) 8 SCC
212; Confederation of ex-Servicemen Associations and
Others vs. Union of India and Ors. 2006 (4)
F Suppl. SCR 872 = (2006) 8 SCC 399; Iqbal Ismail Sodawala
vs. The State of Maharashtra and Others 1975 (1) SCR 710 =
(1975) 3 sec 140 - cited.

Conspiracy:
G 2.1. The law on conspiracy emerges to the effect that
conspiracy is an agreement between two or more
persons to do an illegal act or an act, which is not illegal,
by illegal means. The object behind the conspiracy is to
achieve the ultimate aim of conspiracy. In order to
H achieve the ultimate object, parties may adopt many
YAKUBABDUL RAZAK MEMON v. STATE OF 23
MAHARASHTRA, THR. CBI , BOMBAY

means. Such means may constitute different offences by A
themselves, but so long as they are adopted to achieve
the ultimate object of the conspiracy, they are also acts
of conspiracy. An important facet of the law of
conspiracy is that apart from it being a substantive
offence and distinct from the offence to be committed for B
which the conspiracy was entered into, all conspirators
are liable for the acts of crime of each other which have
been committed as a result of the conspiracy. It is not an
ingredient of the offence that all the parties should agree
to do a single illegal act. It may comprise to commission c
of a number of acts. Each conspirator can be attributed
each others' actions in a conspiracy. Theory of agency
applies and this rule existed even prior to the amendment
of the Penal Code. This is reflected in the rule of evidence
u/s 10 of the Evidence Act. Conspiracy is punishable
0
independent of its fruition. The principle of agency is a
rule of liability and not merely a rule of evidence. It is an
unlawful agreement and not its accomplishment, which
is the gist/essence of the crime of conspiracy. To bring
home the charge of conspiracy within the ambit of s.1208,
IPC, it is necessary to establish that there was an E
agreement between the parties for doing an unlawful act.
In order to determine whether the conspiracy was
hatched, the court is required to view the entire
agreement and to find out in fact what the conspirators
intended to do. [para 61-64, 66 and 81] [142-F-G; 144-E- F
F; 145-D-E; 146-E-F; 151-D-E; 163-8-C, E-F]

Major E.G. Barsay vs. State of Bombay (1962) 2 SCR
195; State of A.P. vs. Kandimalla Subbaiah (1962) 1 SCR
194; State of H.P. vs. Krishan Lal Pardhan (1987) 2 SCC 17 G
- referred to

Regina vs. Murphy (1873) 173 ER 502; Babula/ vs.
Emperor, AIR 1938 PC 130- referred to

2.2. Section 10 of the Evidence Act further provides H
24 SUPREME COURT REPORTS [2013] 15 S.C.R.

A a unique and special rule of evidence to be followed in
cases of conspiracy. As per s.10, the principles agreed
upon unanimously are: (i) There shall be prima facie
evidence affording a reasonable ground for the court to
believe that two or more persons were part of a
B conspiracy to commit a wrongful act or offence; (ii) Once
this condition was fulfilled, anything said, done or written
by any of its members, in reference to their common
intention, will be considered as evidence against other
co-conspirators; (iii) This fact would be evidence for the
c purpose of existence of a conspiracy and that the
persons were a part of such conspiracy. [para 78] [160-
B; 161-C-F]

2.3. It is difficult to establish conspiracy by direct
evidence. Since conspiracy is hatched in secrecy, to
0
bring home the charge of conspiracy, it is relevant to
decide from the facts of the case, conclusively the object
behind it, which is the ultimate aim of the conspiracy.
Further, many means might have been adopted to achieve
this ultimate object. The means may even constitute
E different offences by themselves, but as long as they are
adopted to achieve the ultimate object of the conspiracy,
they are also acts of conspiracy. The conspiracy may be
a general one and a smaller one which may develop in
successive stages. [para 64, 65 and 81] [151-E-G; 163-E]
F
Ajay Aggarwal vs. Union of India, 1993
(3) SCR 543 =AIR 1993 SC 1637 - referred to

2.4. A conspiracy is a continuing offence and
continues to subsist and is committed wherever one of
G 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. A crime is complete as soon as the agreement
is made, but it does not end with the making of the
H agreement. It will continue so long as there are two or
YAKUB ABDUL RAZAK MEMON v. STATE OF 25
MAHARASHTRA, THR. CBI , BOMBAY

more parties to it intending to carry into effect the design. A
The entire agreement must be viewed as a whole and it
has to be ascertained as to what in fact the conspirators
intended to do or the object they wanted to achieve. [para
66 and 68] [152-G-H; 153-A-8; 154-8-C]
B
Sudhir Shanti/a/ Mehta vs. Central Bureau of
Investigation, 2009 (12) SCR 682 = (2009) 8 SCC 1); Yash
Pal Milla/ vs. State of Punjab 1978 (1) SCR 781 =AIR 1977
SC 2433- referred to

2.5. The crime of conspiracy is complete the moment C
there is an agreement in terms of s. 120-A of IPC.
However, where the conspiracy has in fact achieved its
object and resulted in overt acts, all the conspirators
would be liable for all the offences committed in
pursuance of the conspiracy on the basis of the principle D
of agency which is inherent in the agreement which
constitutes the crime of conspiracy. For an offence u/s
1208 IPC, the prosecution need not necessarily prove
that the conspirators expressly agreed to do or cause to
be done the illegal act, the agreement may be proved by E
necessary implication. It is also not necessary that each
member of the conspiracy must know all the details of
the conspiracy. The offence can be proved largely from
the inferences drawn from the acts or illegal omission
committed by the conspirators in pursuance of a F
common design. Conspiracy is a continuing offence, and
if any acts or omissions which constitute an offence are
done in India or outside its territory, the conspirators
continue to be the parties to the conspiracy and since part
of the acts were done in India, they would obviate the G
need to obtain the sanction of the Central Government.
All of them need not be present in India. [para 68 and 311]
[153-G-H; 154-A-8; 376-C-D]

RK. Dalmia vs. Delhi Administration, 1963 SCR 253 =
AIR 1962 SC 1821; Lennart Schussler & Anr. vs. Director of H
26 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Enforcement & Anr., 1970 (2) SCR 760 = (1970) 1 SCC 152;
Shivanarayan Laxminarayan Joshi vs. State of Maharashtra,
(1980) 2 SCC 465 and Mohammad Usman Mohammad
Hussain Maniyar and Another vs. State of Maharashtra, 1981
(3) SCR 68 =AIR 1981 SC 1062; Yogesh@ Sachin Jagdish
B Joshi vs. State of Maharashtra, 2008 (6) SCR 1116 = (2008)
10 SCC 394; Nirmal Singh Kah/on vs. State of Punjab, 1963
SCR 253 = AIR 2009 SC 984, Ram Lal Narang vs. State
(Delhi Admn.), AIR 1979 SC 1791, K. R. Purushothaman vs.
State of Kera/a 2005 (4) Suppl. SCR 498 = (2005) 12 SCC
c 631; State of Maharashtra vs. Som Nath Thapa 1996 (1)
Suppl. SCR 189 =AIR 1996 SC 1744; Kehar Singh & Ors.
vs. State (Delhi Admn.), 1988 (2) Suppl. SCR 24 =AIR 1988
SC 1883; Firozuddin Basheeruddin & Ors. vs. State of Kera/a,
(2001) 7 SCC 596; State (NCT of Delhi) vs. Navjot Sandhu
D @ Afsan Guru 2005 (2) Suppl. SCR 79 = (2005) 11 SCC
600; Ram Narayan Popli vs. Central Bureau of Investigation,
2003 (1) SCR 119 = (2003) 3 SCC 641; Mohd. Khalid vs.
State of West Bengal, 2002 (2) Suppl. SCR 31 = (2002) 7
sec 334 - referred to.
E 2.6. In the case on hand, the first condition for
applying s. 10 of the Evidence Act is satisfied by the
evidence of PWs 1 and 2 (approvers). There are 77
confessions which are voluntary and are corroborated
with other circumstances of the case. These confessions
F contain statements inculpating the makers as well as the
co-accused. The conspiracy might have been started in
Dubai but ultimately it continued in India and a part of the
object was executed in India and even in the
conspiratorial meetings at Dubai, the matter was
G discussed with respect to India and amongst Indian
citizens. [para 77 and 80] [159-F-G; 162-F-G]

2.7. A common charge of conspiracy has been framed
against all the accused persons and in order to bring
home the charge, the prosecution need not necessarily
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 27
MAHARASHTRA,THR.CBl,BOMBAY

prove that the perpetrators expressly agreed to do or A
cause to be done the illegal act, the agreement may be
proved by necessary implication. The cumulative effect
of the proved circumstances should be taken into
account in determining the guilt of the accused rather
than adopting an isolated approach to each of the B
circumstances. [Para 287] [344-A-C]

1.8. This Court is satisfied that the prosecution has
placed sufficient acceptable materials to prove the charge
of conspiracy beyond reasonable doubt. [Para 84] [164- C
F-G]

CONFESSION:

3.1. Section 164 of the Code speaks about recording
confessions and statement and s.15 of TADA is a similar D
provision. The words "or co-accused, abettor or
conspirator' and the proviso in s.15(1) were added by way
of an amendment on 22.5.1993. The amendment was also
with respect to s. 21 of TADA (Presumption as to offences
u/s 3). However, the amendment of 1993 did not bring E
about any change as to the admissibility and applicability
of the confession of the co-accused. In the event of un-
amended TADA, there would be a presumption of guilt
against the appellants pursuant to un-amended s. 21
since confession of other co-accused would implicate
the appellants for the offence of conspiracy. [para 86, 88 F
and 96] [165-B; 168-E; 169-C-D; 178-C-D]

Rabindra Kumar Pal @ Dara Singh vs. Republic of
India 2011 (1) SCR 929 = (2011) 2 SCC 490; Kalawati & Anr.
vs. State of HP. 1953 SCR 546 =AIR 1953 SC 131; Dagdu G
& Ors. vs. State of Maharashtra 1977 (3) SCR 636 = (1977)
3 sec 68; Davendra Prasad Tiwari VS. State of U.P. (1978)
4 SCC 474; Shivappa vs. Stae of Kamataka 1994 (6) Suppl.
SCR 171 = (1995) 2 SCC 76; State through Superintendent
of Police, CBI/SIT vs. Nalini & Ors., 1999 (3) SCR 1 = (1999) H
28 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 5 SCC 253; State of Maharashtra vs. Damu 2000
=
(3) SCR 880 (2000) 6 SCC 269; Bhagwan Singh & Ors. vs.
State of M.P. 2003 (1) SCR 506 = (2003) 3 SCC 21;
Gurjinder Singh vs. State of Punjab (2011) 3 SCC 530;
Surender Kali vs. State of Uttar Pradesh & Ors. 2011 (2)
B SCR 939 = (2011) 4 SCC 80; Kulvinder Singh & Anr. vs.
=
State of Haryana 2011 (4) SCR 817 (2011) 5 SCC 258; and
Inspector of Police, T.N. vs. John David 2011 (7) SCR 354 =
(2011) 5 SCC 509 Ahmed Hussein Vali Mohammed Saiyed
& Anr. vs. State of Gujarat 2009 (8) SCR 719 = (2009) 7 SCC
c 254; Jayawant Dattatray Suryarao vs. State of Mharashtra
=
2001 (5) Suppl. SCR 54 (2001) 10 SCC 109; Ravinder
Singh @ Bittu vs. State of Maharashtra, 2002 (3) SCR 622 =
(2002) 9 sec 55; Mohmed Amin VS. Central Bureau of
Investigation 2008 (16) SCR 155 = (2008) 15 SCC 49;
D Jameel Ahmed & Anr. vs. State of Rajasthan, (2003) 9 SCC
673 - referred to.

State of Rajasthan vs. Ajit Singh 2007 (11) SCR 251 =
(2008) 1 SCC 601; Ganesh Gogoi vs. State of Assam (2009)
7 SCC 404; State (NCT of Delhi) vs. Navjot Sandhu @ Afsan
E Guru para 101 2005 (2) Suppl. SCR 79 = (2005) 11 SCC
600; Harjit Singh vs. State of Punjab (2011) 4 SCC 441;
Virtual Soft Systems Ltd. vs. Commissioner of Income Tax,
Delhi I 2007 (2) SCR 289 = (2007) 9 SCC 665, Sanjay Dutt
vs. State through CBI, Bombay 1994 (3) Suppl.
F SCR 263 = (1994) 5 SCC 410, Hitendra Vishnu Thakur &
Ors. vs. State of Maharashtra & Ors. 1994 (1) Suppl.
SCR 360 = (1994) 4 SCC 602 - cited.

Fairey vs. Southampton County Council (1956) 2 ALL
G ER 843, The Colonial Sugar Refining Co. Ltd. vs. Irving 1905
AC 369, In Re: Athlumney (1898) QB 547 - cited.

3.2. The confessional statement made by a person u/
s 15 of TADA shall be admissible in the trial of a co-
accused for offence committed and tried in the same
H case together with the accused who makes the
•
YAKUB ABDUL RAZAK MEMON v. STATE OF 29
MAHARASHTRA, THR. CBI , BOMBAY

confession. Further, a voluntary and truthful confessional A
statement recorded u/s 15 of the TADA Act requires no
corroboration. [para 368] [457-C-E]

3:3. The position of law on the evidentiary value of
confession is as under:- B

(i) If the confessional statement is properly
recorded satisfying the mandatory provision of
s.15 of TADA and the Rules made thereunder,
and if the same is found by the court as having
been made voluntarily and truthfully then the C
said confession is sufficient to base conviction
on the maker of the confession.

(ii) Whether such confession requires
corroboration or not, is a matter for the court o
to consider on the basis of the facts of each
case.

(iii) With regard to the use of such confession as
against a co-accused, as a matter of caution,
a general corroboration should be sought for E
but in cases where the court is satisfied that
the probative value of the confession is such
that it does not require corroboration then it
may record conviction on the basis of such
confession of the co-accused without F
corroboration. But this is an exception to the
general rule of requiring corroboration when
such confession is to be used against a co-
accused.
G
(iv) The nature of corroboration required both in
regard to the use of confession against the
maker as also against a co-accused is of a
general nature, unless the court comes to the
conclusion that such corroboration should be H
30 SUPREME COURT REPORTS (2013] 15 S.C.R.

A on material facts also because of the facts of
a particular case. The degree of corroboration
so required is that which is necessary for a
prudent man to believe in the existence of
facts mentioned in the confessional statement.
B
(v) The requirement of sub-r. (5) of r.15 of the
TADA Rules which contemplates a
confessional statement being sent to the Chief
Metropolitan Magistrate or the Chief Judicial
Magistrate who, in turn, will have to send the
c same to the Designated Court is not
mandatory and is only directory. However, the
court considering the case of direct
transmission of the confessional statement to
the Designated Court should satisfy itself on
D the facts of each case whether such direct
transmission of the confessional statement
creates any doubt as to the genuineness of
the said confessional statement. [para 105]
[184-G-H; 185-A-H; 186-A-8]
E
Nazir Khan vs. State of Delhi 2003 (2) Suppl. SCR 884
= (2003) 8 sec 461; Sukhwant Singh VS. State, (2003) 8 sec
90; Mohmed Amin vs. Central Bureau of Investigation 2008
(16) SCR 155 = (2008) 15 SCC 49; Mohd. Ayub Dar vs. State
F =
of Jammu and Kashmir 2010 (8) SCR 916 (2010) 9 SCC
312 - referred to

3.4. It is clear that the confessions made by the
appellants are truthful and voluntary and were made
without any coercion. All safeguards enumerated u/s 15
G of TADA and the rules framed thereunder have been duly
complied with while recording the confessions of the
appellants. [para 260] [315-E-F]

3.5. The evidence on record along with the
H confessions of various co-accused amply prove that the
- YAKUBABDUL RAZAK MEMON v. STATE OF 31
MAHARASHTRA, THR CBI , BOMBAY

weapons training was organized with the aid of the A
Government of Pakistan and also clearly shows a very
deep involvement of A-1 in the organization and conduct
of serial bomb blasts in question. [para 125] [205-H; 206-
A]
B
Recording of confessions bv police officers:

3.6. It has been held by this Court that no illegality
persists in recording a confession u/s 15 of TADA by an
officer supervising the investigation. [para 202] [266-C, E]
c
=
S.N. Dube vs. N.B. Bhoir, 2000 (1) SCR 200 (2000) 2
SCC 254; Mohd. Amin vs. CBI, 2008 (16) SCR 155 (2008)=
15 SCC 49; and Lal Singh vs. State of Gujarat 2001 (1) SCR
111 = (2001) 3 sec 221 - relied on.

3.7. PW-189 functioned as DCP for Zone X up till D
August, 1994. He recorded the confessional statement of
96 accused persons in the case. The recorded
confessions were sealed and sent to Chief Metropolitan
Magistrate. He asserted that he had followed the
procedures mentioned in the Rules and instructions E
while making the record of confession of all the accused
whose confession were recorded by him. PW-193 was
posted as DCP in Bombay from April, 1992, up till
December, 1995. He stated that by following the elaborate
procedure, he recorded the confessional statements of F
A-77, A-10, A-14, A-26,A-57, A-96, A-15, A-117 and PW-2.
A perusal of the evidence of both the officers clearly
show that they were aware of the procedure to be
followed before recording the confession of the accused
and how the same is to be recorded. The Designated G
Court was fully justified in relying upon the evidence of
PW-189 and PW-193. [para 195-197, 198-200 and 205]
[263-E, G; 265-E-F; 273-F-G; 274-C]

Retractions:
H
32 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 4.1. Where the original confession was truthful and
voluntary, the Court can rely upon such confession to
convict the accused in spite of a subsequent retraction
and its denial in statement uls 313, CrPC. A confessional
statement given uls 15 shall not be discarded merely for
B the reason that the same has been retracted. [para 134
and 368] [209-D-E; 457-D]

S.N. Dube vs. N.B. Bhoir 2000 (1) SCR 200 = (2000)
2 SCC 254; Manjit Singh vs. CBI, 2011 (1) SCR 997 = (2011)
C 11 SCC 578; State of Tamil Nadu vs. Kutty 2001 (11) Suppl.
SCR 433 = AIR 2001 SC 2778; Mohd. Amin v. CBI, 2008
(16) SCR 155 = (2008) 15 SCC 49; Jameel Ahmed vs. State
of Rajasthan, (2003) 9 SCC 673; State of Maharashtra vs.
Bharat Chaganlal Raghani, 2001 (3) SCR 840 = (2001) 9
SCC 1; and Balbir Singh vs. State of Punjab, AIR 1957 SC
D 216 - relied on

Kalawati vs. State of Himachal 1953 SCR 546 = AIR
1953 SC 131; Parmananda Pegu vs. State of Assam, 2004
(4) Suppl. SCR 1 =AIR 2004 SC 4197, Pyare Lal Bhargava
E vs. State of Rajasthan 1963 Suppl. SCR 689 =AIR 1963 SC
1094, Kehar Singh & Ors. vs. State 1988 (2) Suppl.
SCR 24 =AIR 1988 SC 1883, Babubhai Udesinh Parmar vs.
State of Gujarat (2006) 12 SCC 268; Wariyam Singh vs. State
of UP., 1995 (3) Suppl. SCR 807 = (1995) 6 SCC 458; Lal
F Singh vs. State of Gujarat, 2001 (1) SCR 111=(2001)3 SCC
221; Devender Pal Singh vs. State of NCT of Delhi, 2002 (2)
SCR 767 = (2002) 5 SCC 234; Ravinder Singh vs. State of
Maharashtra, 2002 (3) SCR 622 = (2002) 9 SCC 55; Jameel
Ahmed vs. State of Rajasthan, (2003) 9 SCC 673- referred
G to
4.2. Further, it is evident that in the instant matters,
retractions were not made at the first available
opportunity by the accused persons. After arrest, the
accused persons were produced before the court
H number of times in 1993 and 1994. While the confessions
YAKUB ABDUL RAZAK MEMON v. STATE OF 33
MAHARASHTRA, THR CBI , BOMBAY

were recorded in April and May 1993, retractions were A
made only in May, 1994, i.e. after a gap of 1 year. [para
261] (315-H; 316-A]

4.3. In the instant matters, the Designated Court
rightly relied upon the original confession and discarded B
the subsequent retraction. [para 291] (347-D]

Grant of Pardon u/s 306 of the Code to approver (PW. 2):

5.1. The provisions in TADA clearly show that the
Code of Criminal Procedure, 1973 would apply to all c
cases. Section 4(2) of the Code makes it clear that all the
offences under any ,oth_er law shall be investigated,
inquired into, tried and dealt with according to the
provisions of the Code but subject to specific clause/
reference of the Special Act. It is also clear from s. 5 of o
the Code that in the absence of specific provisions in any
enactment, the provisions of the Code shall govern for
the purpose of investigation, enquiry etc. Section 7(3) of
TADA makes it clear that the provisions of the Code shall,
so far as may be and subject to such modification made E
in the Act, apply to the exercise of powers by the officer
under sub-s. (1 ). [para 190] (253-G; 254-D-E]

5.2. Section 20 of TADA makes it clear that certain
provisions of the Code are automatically applicable and
the Designated Court is free to apply those provisions for F
due adjudication of the cases under the Act. Thus, no
provision of TADA is inconsistent with the provisions of
the Code of Criminal Procedure, 1973, for grant of pardon
as envisaged u/ss 306 to 308. Further, TADA does not
preclude the applicability of s. 306 of the Code. Section G
306(2)(b) is specifically applicable where the offence for
which an accused is being tried is punishable with
imprisonment extending to seven years or more. In the
instant case, the approver was accused of offences
H
34 SUPREME COURT REPORTS [2013] 15 S.C.R.

A which carried the maximum punishment as capital
punishment. [para 190] [256-G-H; 257-A, E]

Harshad S. Mehta & Ors. vs. State of Maharashtra 2001
(2) Suppl. SCR 577 = (2001) 8 SCC 257 ; Lt. Commander
Pascal Fernandes vs. State of Maharashtra & Ors. (1968) 1
8
SCR 695 - relied on

5.3. The object of s. 306 is to tender pardon in cases
where a grave offence is alleged to have been committed
by several persons so that the offence could be brought
C home with the aid of evidence of the person pardoned.
The legislative intent of this provision is, therefore, to
secure the evidence of an accomplice in relation to the
whole of circumstances, within his knowledge, related to
the offence and every other person concerned. This
D Court, therefore, holds that the power to grant pardon ul
s 306 of the Code also applies to the cases tried under
the provisions of TADA and there was no infirmity in the
order granting pardon to the approver (PW-2) in the facts
and circumstances of the case. Further, the provisions
E of sub-s. (4) of s. 306 have not been violated and there
is no illegality in not having examined the approver twice
by the Designated Court. [para 191 and 194] [257-F-H;
258-A; 261-A]

Sardar Iqbal Singh vs. State (Delhi Admn.) 1978 (2)
F
SCR 174 = (1977) 4 SCC 536- relied on

Deposition of approver CPW2):

5.4. PW-2, who turned approver admitted that he
G took training in handling of weapons and ROX in
Pakistan for a period of 10 days along with others. He
admitted that he knew AA-2 and A-1. It was further stated
that all the persons including A-1 were involved in
planning, conspiracy, tra.ining, landing and planting of
bombs. In the cross-examination, he admitted that he
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 35
MAHARASHTRA, THR. CBI, BOMBAY

was involved in the case from the stage of conspiracy till A
planting of bombs and is responsible for the explosions.
He also admitted that he participated in all the stages of
conspiracy till the achievement of the object. [para 148
and 161] [218-F, G-H; 219-A-C; 227-E-F]
B
5.5. A perusal of the entire evidence of PW-2 clearly
shows that at no point of time he acted under pressure
to become an approver. He withstood the lengthy cross-
examination. His testimony runs into hundreds of pages
and he covered all the aspects starting from initial
conspiracy and ending with execution of blasts at C
various places in Bombay on 12.03.1993. This Court is
also satisfied that his confessional statement before the
Deputy Commissioner of Police and his statement before
the Designated Court are not borne out of fear but due
to his conscience and repentance. On the whole, his D
testimony is reliable and acceptable and the Designated
Court rightly relied on his entire statement in support of
the prosecution case. [para 176] [235-D-G]

5.6. In the light of the provisions of s.133 read with E
s.114 Illus (b) of the Evidence Act, the evidence of an
approver needs to be corroborated in material particulars.
In the instant case, the evidence of the approver has been
corroborated in material particulars by way of primary
evidence by the prosecution. [para 181] [237-G-H]
F
Appointment of Special Executive Magistrates
6'.1. Special Executive Magistrates (SEMs) are
appointed by the State Government u/s 21 of the Code
for particular functions on such terms and conditions as G
it may deem fit. They can exercise powers so conferred
upon them by the State as are exercisable by an
Executive Magistrate. The Criminal Manual and the
Government Circular, Home Department, No. MIS.1054/
84588 dated 22nd April, 1955 in clear terms requires that
H
36 SUPREME COURT REPORTS [2013] 15 S.C.R.

A non-judicial Magistrates or Honorary Magistrates such as
a Special Executive Magistrate should preferably conduct
an identification parade and, accordingly, identification
parades in the instant case were conducted by Special
Executive Magistrates in compliance with the provisions
B of the Criminal Manual. [para 207-211] [276-G-H; 277-A, C,
E; 278-A-B]
State of Maharashtra vs. Mohd. Salim Khan 1990 (3)
Suppl. SCR 340 = (1991) 1 SCC 550 - relied on.
c 6.2. Section 20 of TADA read with s. 21 of the Code
permits a Special Executive Magistrate to carry out such
functions as are required in a TADA case and accordingly
in the instant case Special Executive Magistrates, inter
alia, conducted identification parades of the accused
0 persons. The constitutional validity of s. 20 of TADA has
been upheld by this Court in Kartar Singh* wherein this
Court held that Special Executive Magistrates appointed
u/s 21 of the Code can record confessional statements
for offences committed under TADA and perform such
E other functions as directed. [para 213-214] [280-B-D]
*Kartar Singh vs. State of Punjab 1994 (2) SCR 375 =
(1994) 3 sec 569 - relied on
Recoveries:
F Panchnama (Salient features):
7.1 The primary intention behind the Panchnama is
to guard against possible unfair dealings on the part of
the officers entrusted with execution of search and also
G to ensure that anything incriminating which may be said
to have been found in the premises searched was really
found there and was not introduced or planted by the
officers of the search party. The legislative intent was to
control and to check these malpractices of the officers,
by making the presence of independent and respectable
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 37
MAHARASHTRA, THR. CBI tBOMBAY

persons compulsory for search of a place and seizure of A
article. Panchnama is a document having legal bearings
which recqrds evidence and findings that an officer
makes at the scene of an offence/crime and of anywhere
else which may be related to the crime/QUence and from
where incriminating evidence is likely to be:~ollected. The B
document so prepared needs to be. signed by the
investigating officer who prepares the same and at least
by two independent and impartial witnesses called
'Panchas', as also by the party concerned. The witnesses
are required to be not only impartial but also c
'respectable', i.e. a person who is not dis-reputed. [paras
218] [281-G-H; 282-A-D]

Evidentiary value of Panchnama:

7.2. Panchnama can be used as corroborative D
evidence in the court when the 'Pancha' gives evidence
in court of law u/s 157 of the Evidence Act. It can also be
used as evidence of the recorded transaction by seeing
it so as to refresh the memory of the witnesses u/s 159
of Evidence Act. [para 218-219] [282-B, F] E

Provisions relating to Panchnama in the Code:

7.3. The word 'Panchnama' is nowhere stated in the
Code, but it can be construed from the language of
certain provisions under the Code. Sections 100 and 174 F
of the Code mandate the presence of respectable
persons as witnesses at the time of search and
investigation respectively. Section 174 of the Code
enumerates the list of instances where the police officers
are empowered to hold inquests, the proviso to this G
section mandates the inquest to be conducted in the
presence of two or more respectable inhabitants of the
neighbourhood. Clauses (4) to (8) of s.100 stipulate the
procedure with regard to search in the presence of two
or more respectable and independent persons preferably H
38 SUPREME COURT REPORTS [2013] 15 S.C.R.

A from the same locality. The following mandatory
conditions can be culled out from s. 100 of the Code for
a valid Panchnama:

i. All the necessary steps for personal search of
officer (Inspecting officer) and panch
B
witnesses should be taken to create
confitlence in the mind of court as nothing is
implanted and true search has been made and
things seized were found real.

c ii. Search proceedings should be recorded by
the 1.0. or some other person under the
supervision of the panch witnesses.

iii. All the proceedings of the search should be
D
recorded very clearly stating the identity of the
place to be searched, all the spaces which are
searched and descriptions of all the articles
seized, and also, if any sample has been
drawn for analysis purpose that should also
be stated clearly in the Panchanama.
E
iv. The 1.0. can take the assistance of his
subordinates for search of places. If any
superior officers are present, they should also
si9n the Panchanama after the signature of the
F main 1.0.

v. Place, name of the police station, Officer rank
(1.0), full particulars of panch witnesses and
the time of commencing and ending must be
mentioned in the Panchnama.
G
vi. The panchnama should be attested by the
panch witnesses as well as by the concernecl
10.

H vii. Any overwriting, corrections, and errors in the
YAKUB ABDUL RAZAK MEMON v. STATE OF 39
MAHARASHTRA,THR.CBl,BOMBAY

Panchnama should be attested by the A
witnesses.

viii. If a search is conducted without warrant of
court u/s 165 of the Code, the 1.0. must record
reasons and a search memo should be issued.
B
[para 220-222] [282-G-H; 285-B-H; 286-A-C]

Circumstances when the Panchnama is inadmissible:

7.4. The Panchnama will be inadmissible in the court
of law in the following circumstances: c
i. The Panchnama recorded by the 1.0. under his
supervision should not be hit by s.162 of the
Code. The procedure requires the 1.0. to
record the search proceedings as if they were
D
written by the panch witness himself and the
same should not be recorded in the form of
examining witnesses as laid down u/s 161 of
the Code.

ii. The Panchnama must be attested by the panch E
witnesses for it to be valid in the eyes of law.
In case· of a literate panch witness, he must
declare that he has gone through the contents
of Panchnama and it is in tune with wh.at he
has seen in the places searched, whereas for F
illiterate panch witness, the contents should be
read over to him for his understanding and
then the signature should be appended. If the
above said declaration is not recorded, then
the panchnama document will be hit by s.162 G
of the Code. [para 223] [286-D-H; 287-A]

7.5. On any deviation from the procedure, the entire
panchanama cannot be discarded and the proceedings
are not vitiated. If any deviation from the procedure
occurs due to a practical impossibility then that should H
40 SUPREME COURT REPORTS [2013] 15 S.C.R.

A be recorded by the 1.0. in his file so as to enable him to
answer during the time of his examination as a witness
in court. Where there is no availability of panch
witnesses, the 1.0 will conduct a search and seize the
articles without panchas and draw a report of the entire
B such proceedings which is called as a 'Special Report'.
[para 224] [287-8-C]

Pradeep Narayan Madgaonkar and Ors. vs. State of
Maharashtra (1995) 4 SCC 255; Mohd. Hussain Babamiyan
C Ramzan vs. State Of Maharashtra, (1994) Cri.L.J. 1020, and
Pannala/ Damodar VS. State of Maharashtra (1979) 4 sec
526, M. Prabhulal vs. The Assistant Director, Directorate of
=
Revenue Intelligence 2003 (3) Suppl. SCR 958 (2003) 8
sec 449 and Ravindra Shantram Sawan VS. State of
Maharashtra 2002 (3) SCR 881 = (2002) 5 SCC 604;
D Rameshbhai Mohanbhai Kofi and Ors. vs. State of Gujarat
2010 (14) SCR 1 = (2011) 11SCC111 - referred to.

7.6. In the instant case, A-67 in his confessional
statement narrated about various incriminating articles
E and also identified the articles used for preparation of
bomb. PW-282 identified the accused (A-67), who. had
given him two suit cases, which he handed over to police.
The said suit case contained hand grenades and bundles
of wire. PW-541, P.I. DCBelD Unit, deposed about taking
F charge of the incriminating suit cases, AK-56 rifles,
ammunition and hand grenades and keeping the same
in strong room of DCB, CID. [para 229, 232 233 and 237]
[288-D; 290-F; 291-C; 293-G]

7. 7 From the statements of various accused,
G particularly, A-10 and the evidence of PW-282 as well as
PW-541 coupled with the affidavit sworn by PW-541 and
in the light of the principles to b.e followed for a valid
panchnama, this Court is satisfied that though minor
discrepancies are there, on this ground the entire
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 41
MAHARASHTRA, THR. CBI , BOMBAY

prosecution case cannot be destroyed. In view of the fact A
that the prosecution has led ample corroborative
evidence, the Designated Court was fully justified in
relying on those recoveries while accepting the
prosecution case. [para 240] [296-H; 297-A-B]
B
COMPLICITY OF ACCUSED PERSONS:

Appellant-accused A-1 (Crl A. No. 1728 of 2007):

8.1. The .evidence in respect of A-1 is in the nature
of the confessions made by the co-accused persons, the c
testimony of prosecution witnesses, the documentary
evidence on record and the recoveries made. Apart from
the evidence of PW-2, several accused persons in their
confessional statements and other witnesses examined
on the side of the prosecution clearly implicate A-1 and D
his involvement in all the events. [Para 80 and 83] [162-
H; 163-A; 164-C]

8.2. The prosecution heavily relied on the
confessional statements of co-accused persons, namely,
A-10, A-11, A-46, A-67 and A-97, which are admissible as E
primary and substantive evidence against the appellant
(A-1) notwithstanding the amendment by Act 43 of 1993.
[para 98 and 104] [179-8; 184-F]

8.3. The fact that A-1 was constantly present at Al- F
Hussaini building, where the major part of the plans have
been made and executed, is established, and his active
involvement has also emerged from the confessional
statement of A-67 and other evidence on record as to
how he was dealing with the so called men of 'AA-2, G
managing his ill gotten money, booking air tickets and
actively working for confirming them for the conspirators.
Further, there is enough evidence of his meeting with co-
accused and actively working in furtherance of the
conspiracy. Accused 'A-1' need not be present at each H
42 SUPREME COURT REPORTS [2013] 15 S.C.R.

A and every meeting for being held to be a part of the
conspiracy. [para 77] [159-G-H; 160-A-B]

8.4. It has clearly come in the confession of A-67, as
corroborated by A-37 and A-46 as also PWs 37, 282 and
506 that A-1 delivered bags and suit cases to A-67 which
B
cqntained handgrenades and electronic detonators and
subsequently two suit cases were recovered at the
instance of A-67 which contained 105 hand grenades and
150 electronic detonators. In the light of the evidence on
record, it is clear that A-1 was in possession of
c handgrenades and electronic detonators which were
concealed in the jeep and which were delivered to A-67
in three suitcases by A-1 through A-46. [para 118-120]
[197-F; 198-A-C; 199-A-B]

D 8.5. The deposition of PW-2 (approver) reveals
several incriminating circumstances against the appellant
(A-1 ). PW-2 stated that the tickets were given by the
appellant to a co-conspirator which fact has been
corroborated by A-10 in his confessional statement. This
E evidence considered along with the fact that the tickets
were arranged by the appellant (A-1) and he was present
in the meeting of the co-conspirators, i.e., in the meeting
of AA-2 including PW-2 and A-10, clearly establishes his
unity with the object of the conspiracy. [para 177-178]
F [237-A-D]

8.6. The prosecution has established by evidence that
arranging the tickets to Dubai was one of the
responsibilities of A-1. It is very clear that the deposition
of PW-2 to the extent that when PW-2 and other
G conspirators were called by AA-2, A-1was also present
there, who on being asked by the former, handed over
the tickets to a co-conspirator which clearly establishes
the active participation of A-1 in the conspiracy. The fact
that the co-conspirators were called for the meeting in the
H presence of A-1 and were being given instructions by AA·
YAKUB ABDUL RAZAK MEMON v. STATE OF 43
MAHARASHTRA, THR. CBI , BOMBAY

2 about the conspiracy clearly establish the active A
participation of A-1 in the conspiracy. [para 179] [237-A-D]

8.7. Evidence of PW-2 makes it clear that though he
did not mention about the participation of A-1 in all the
meetings, however, he identified A-1 in court and asserted B
that he is the brother of AA-2 and it was he who assisted
his brother at the Al-Hussaini Building for all preparations,
viz., purchasing tickets, getting visas, making
arrangements for the persons who were sent to Pakistan
via Dubai for training in handling and throwing bombs, C
filling ROX in vehicles etc., their stay at Dubai and return
of such persons from Pakistan to Bombay, payments to
various persons who underwent training, which clearly
prove the involvement of A-1 in the conspiracy as well as
in subsequent events and actions along with his brother
0
and other accused. [para 152] [233-A-C]

8.8. Apart from the categorical statement of co-
accused, the prosecution has also examined the
independent witnesses from the travel agencies and
other authorities. Besides, there is ample evidence to E
show that A-1 was incharge of all money transactions and
monitoring the activities of all the persons concerned in
the movement. The prosecution has also established that
A-1 owned a blue Maruti Car which was used for carrying
explosives and detonators one day before the blast took F
place on 12.03.1993. A-1 left for Dubai on 11.03.1993 with
the Indian Passport and thereafter he entered Pakistan
with Pakistani Passport. Though he was not one among
the persons who carried arms and ammunitions used for
the blast but it was he who stood behind them from G
starting till the end, viz., conspiracy, planning and making
all the arrangements for sending certain persons to
Pakistan for training in handling of arms and
ammunitions. [para 249] [302-E-G] c

H
44 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 8.9. A perusal of the Confessions by: the co-
conspirators would show that the appellant (A-1) was
playing a key role in furtherance of the conspiracy. The
evidence along with further material relied on by the
prosecution show that A-1 also played an active role in
B generation and management of funds for achieving the
object behind the conspiracy and in all subsequent
events. [para 250] [303-8]

8.10. This Court is satisfied that the prosecution has
C established all the charges leveled against A-1 and the
Designated Court, after analysing all the materials
including oral and documentary evidence and the
independent witnesses, rightly convicted him. [para 249]
[302-H; 303-A]

D OTHER APPELLANTS-ACCUSED PERSONS:

9. The evidence against all other accused-appellants
is in the form of: (i) their own confessions; (ii)
confessions made by other co-conspirators (co-
E accused); (iii) testimonies of prosecution witnesses
including eye-witnesses; and (iv) documentary evidence.
[para 286] [343-F-H]

Appellants A-32, A-36 and A-39 (Criminal Appeal Nos.
609-610 of 2008):
F
10.1 The evidence on record, namely, the
confessional statements of appellants-A-32 and A-39, the
confessional statements of co-accused A-13, A-23, A-29,
A49, A-52, A-57, A-64, A-94, A-98 and A-100, prosecution
G witnesses, namely PW-2 (approver), PW-5, PW-6 and PW-
13 (eye-witnesses) other witnesses of investigation, recoveri
s, FSL reports, evidence with regard to injured victims a
d deceased persons, it has been sufficiently established that
each of the appellants, namely, A-32, A-36 and A-39 were actively
H involved in the conspiracy of causing blasts in Bombay in a
YAKUB ABDUL RAZAK MEMON v. STATE OF 45
MAHARASHTRA, THR. CBI , BOMBAY

much as they attended conspiratorial meetings and in A
furtherance of the conspiracy they received weapons
training in Pakistan; in the night of 11/12.03.1993, they
participated in filling of ROX in vehicles at the Al-Hussaini
building and; and on 12.03.1993, they threw hand
grenades towards the Fishermen's colony which resulted B
in death of 3 persons and injuring 6 others. [para 258-263,
274 and 279] [310-D; 312-D; 313-F; 316-C; 334-D-H; 335-
A-B]

10.2. A perusal of all the materials clearly shows that C
the prosecution has established all the charges and the
Designated Court rightly convicted them of the same.
[para 281] [337-D]

Appellant-accused A-44: (Criminal Appeal Nos. 628-629
of 2008) D

11.1. The confession ·of the appellant (A-44)
establishes the charges framed against him in the trial.
The fact that he knowingly committed the overt act of
planting the bomb at Hotel Centaur, Juhu, is evident from E
his own confession. [para 290] [346-G]

11.2. The confessional statements of all the co-
accused, viz., A-9, A-10 A-12 and A-15 clearly corroborate
the confessional statement of the appellant (A-44) and
establish that he went along with 'A' (AA) and A-10 in a F
Maruti Van; he witnessed the insertion of pencil
detonators in the suitcases filled with ROX; he planted
the suitcase filled with ROX in Hotel Centaur Juhu; and
that he proceeded to park the scooter filled with ROX at
Zaveri Bazaar. [para 293] [350-C-G] G

11.3. From the perusal of the testimony of PW-17 and
PW-18, the staff of Hotel Centaur Juhe, it is clear that the
witnesses established the identity of the person, who
planted the suitcase in the hotel, as the appellant. H
46 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Further, the prosecution has produced sufficient
evidence against the appellant (A-44) to bring home the
charges framed against him. [para 295 and 305] [352-F-
G; 369-B]

B Appellant-accused A-10 and A-29 (Criminal Appeal Nos.
637-638 of 2008)

12.1. From the confessional statement of A-10 and A-
29, it is evident that both the accused apart from
implicating themselves in various activities along with
C other accused persons, corroborate with each other. It is
also clear that both the appellants were present at the
residence of 'AA-2' and went in a red coloured Maruti van
which was loaded with explosive substances and parked
it in the compound of the Plaza Cinema which later
D exploded killing 1o persons and injuring 36 others. [para
313] [384-F-G]

12.2. Confessional statements of co-accused viz., A-
32, A-46, A-57, A-64, A-100, A-9, A-12, A-15, A-17, A-44, A-
E 96, A-97, A-16, A-23, A-24, A-36, A-39, A-49, A-52, A-77, A-
94 and A-98 substantiate the fact that the appellants, viz.,
A-10 and A-29 were fully aware of the conspiracy and
wilfully participated in performing the conspiratorial acts.
Further, the_ confessions of these co-accused
corroborate the confessional statements of the
F
appellants (A-10 and A-29) in material particulars. [para
315] [396-C-E]

12.3. PW-2, in his deposition, implicates the
appellants. He duly corroborates the confessions of the
G co-accused and the confessions of the appellants
themselves. The deposition of PW-2 has also been
corroborated in material particulars. [para 318] [397-D, H;
398-A]

12.4. PWs-3 and 4, who were the Security Guards on
H
YAKUBABDUL RAZAK MEMON v. STATE OF 47
MAHARASHTRA, THR. CBI , BOMBAY
duty at Plaza Cinema at the relevant time, and had A
witnessed the incident, sufficiently prove involvement of
the appellants. Their depositions also provide
corroboration with the confessional statements of A-10
and A-29 that they parked the Maruti van laden with
explosives in Plaza Cinema compound which caused the B
said explosions causing death of 10 persons and injuries
to 36 people. [para 319 and 322] [398-G; 400-G-H]

12.5. Other Witnesses namely, PW-449, PW-447, PW-
455, PW-448 and PW-450 proved the injuries sustained
by them during the explosion. PW-646, the doctor who C
issued certificates regarding treatment of PW-449 and
PW-407 sufficiently corroborates the fact of injury
suffered by the victims. [para 323] [401-A-B]

12.6. In view of the confessional statements of the D
appellants (A-10 and A-29), the confessional statements
of the other co-accused persons, deposition of
prosecution witnesses, as also the eye-witnesses, viz.,
PWs-3 and 4 along with other witnesses duly examined
by the prosecution, the charges framed against the E
appellants have been duly proved. [para 331] [404-A-B]

Appellant-accused A-9 (Criminal Appeal No.365 of 2008):

13.1. Appellant (A-9) confessed to have facilitated AA·
2 fleeing from India in the morning of 12.3.1993. In the F
night of 11.3.1993 he was present when ROX was being
filled into vehicles and was being kept in suit cases by
other co-accused. He went along with A-10 to drop co-
accused A-12, A-44 and AA who went for planting bombs
in Hotel Sea Rock, Hotel Centaur, Juhu and Hotel Centaur G
Airport. He planted a scooter laden with ROX in Zaveri
Bazar. The appellant consciously joined the_ conspiracy
and committed overt acts in furtherance of the
conspiracy. From a perusal of the entire confession, it is
established that the appellant was fully aware and H
48 SUPREME COURT REPORTS [2013] 15 S.C.R.

A conscious of the overt acts committed by him. The guilt
of the appellant (A-9) is proved from his confession and
it is established that he knew that his actions were wrong
and illegal. [para 338 and 339) [412-C; 413-A-C, H; 414-A,
CJ
8
13.2. The involvement of the appellant (A-9) has also
been disclosed in the confessional statements of co-
accused namely A-10, A-11, A-12, A-15 and A-44. Besides,
the prosecution has relied upon the evidence of
prosecution witnesses namely, PW-29, PW-36; PW 469,
C PW 556, PW2, PWs 51, 82, 452, 299, 651, 81, 554 to
establish the involvement of the appellant (A-9) in the
conspiracy and the consequential acts including the
purchase of scooters used in blasts. The recoveries made
and the FSL Report have been proved. Further the injured
D witnesses and relatives of deceased, namely, PWs 394,
424, 578, 395 and 396 have also deposed. [para 340, 344
and 348] [414-E; 419-F; 425-C-D]

13.3. In view of the confessional statement of the
E appellant (A-9), the confessional statements of other co-
accused persons as also the eye-witnesses PWs-29 and
36, along with other witnesses duly examined by the
prosecution, the charges framed against the appellant (A-
9) have been duly proved. [para 351) [430-B-C]

F Appellant-accused A-11 (Criminal Appeal Nos. 864-865 of
2008):

14.1. From the confessional statement of the
appellant (A-11 ), it is clear that he was a close associate
G of 'AA-2' . He had full knowledge of all the facets of the
conspiracy and played an active part in the landing and
transportation of ROX and other explosives and making
of suitcase and vehicle bombs. He planted a jeep
containing a bomb at Century Bazaar. He was involved
H in all the stages of conspiratorial design. It is thus
YAKUB ABDUL RAZAK MEMON v. STATE OF 49
MAHARASHTRA, THR. CBI , BOMBAY

established from his own confession that he played an A
important and active role in the conspiracy. [para 359)
[441-F-G]

14.2. The other co-accused, namely A-9, A-10, A-12,
A-13, A-15, A-17, A-18, A-23, A-24, A-28, A-29, A-46, A-57, B
A-64, A-73 and A-100 in their confessions u/s 15 of TADA,
have also discussed the role played by the appellant (A-
11) in the conspiracy. [para 365) [445-G]

14.3. Further, evidence of the approver (PW-2), the
eye-witness (PW-15), experts and others clearly implicate C
A-11 to the actual scene of the crime at Century Bazaar
along with linking him to taking part in the entire
conspiracy. The confession made by A-11 himself and
the confessions of the various co-accussed are in
consonance with the other available evidence. It is, D
therefore, established that the appellant (A-11) was an
active member of the conspiracy which led to the blasts
at various places in Bombay and caused many deaths,
injuries and loss to property. The involvement of the
appellant in the entire conspiracy was of great E
importance as he was himself involved in the landing of
arms and ammunitions and even planted the jeep with a
bomb which exploded in Century Bazaar. [para 376-377]
[476-B-F]

14.4. This Court, therefore, holds that the prosecution F
has produced sufficient evidence to bring home the
charges framed against the appellant (A-11 ). [para 378)
[477-B]

Appellant-accused A-12 (Criminal Appeal No. 897 of G
2008):

15.1. Confessional statement of A-12 established that
he was a trusted confidant of AA-2 since he was assisting
him in the crime relating to Hawala transaction and was H
50 SUPREME COURT REPORTS [2013) 15 S.C.R.

A well acquainted with other co-conspirators; he
participated in the landing, transportation and storage of
arms and ammunitions and explosives that was used in
the bomb blasts; he participated in filling of ROX in the
vehicles parked in the garage of Al-Hussaini building; he
B planted the suitcase in Hotel Sea Rock knowing that it
contains ROX and is fitted with time pencil detonator; and
that he parked the scooter laden with black chemical and
fitted with time pencil detonator at Katha Bazaar. [para
386] [491-E-H; 492-A-C]
c 15.2. The involvement of the appellant has also been
disclosed in the confessional statements of the co-
accused A-9, A-10, A-11, A-14 amd A-15. It is clear from
the confession of the appellant (A-12) and the
confessions of other co-accused that the work of filling
D of ROX in vehicles and suitcases was carried out in the
garage of the Al-Hussaini Building. This Court is also
satisfied that sufficient evidence is available on record to
substantiate the fact that the appellant (A-12) participated
in filling ROX in vehicles in the night intervening 11/12 -
E 31993. [para 388 and 396] [492-F; 510-F-G]

15.3. On perusal of the depositions of PWs-8 and 9,
it is clearly established that on 12.03.1993, the appellant
parked the scooter at Katha Bazaar, opposite to
F Matruchhaya Building which later exploded. The
depositions also sufficiently corroborate the confessional
statement made by the appellant that he parked a scooter
laden with explosives at Katha Bazaar. From the evidence
of PW-386 and PW-75, it is clearly discernible that the
G scooter was booked in the fake name. [para 392] [498-F-
G; 503-E]

15.4. The evidence of PWs 23, 462, 28 and 46
establishes the fact that the appellant (A-12) entered into
the Room No. 1840 of Hotel Sea Rock along with the
H luggage and after leaving the same in the said room, he
YAKUBABDUL RAZAK MEMON v. STATE OF 51
MAHARASHTRA, THR. CBI , BOMBAY
went out of the hotel. Thereafter, a big explosion took A
place in the said room. Both PWs-23 and 28 have
identified the appellant (A-12). [para 394] [506-E-F]

15.5. In view of the confessional statement of the
appellant (A-12), the confessional statements of other co-
B
accused persons, as also the eye-witnesses along with
other witnesses duly examined by the prosecution and
recoveries made, the charges framed against the
appellant have been duly proved. [para 400] [512-C-D]

Criminal Appeal Nos. 941-942 of 2008(A-16l c
16.1. The appellant-accused A-16, in his confessional
statement, has given details about his involvement in the
conspiracy. He has given the description of the meetings
that he attended. He also described about the training
D
that took place in Pakistan and other relevant details
about his own involvement as well as that of the other
accused. [para 407] [522-H; 523-A]

16.2. A perusal of the confession by the accused
shows that the appellant was playing a key role in E
furtherance of the conspiracy. The other co-accused
namely, A-10, A-29, A-32, A-36, A-39, A-49, A-52, A-57 A-
64, A-94, A-98 and A-100, in their confessions u/s 15 of
TADA have also discussed the role played by A-16 in the
conspiracy. [para 409] [526-H; 527-A] F

16.3. The evidence of approver (PW-2) and the
confessional statement of A-64 show that A-16
participated in the landing and transportation of arms
and ammunitions and explosives which were smuggled G
into India in February, 1993. PW2 further stated that A-
16 visited Pakistan via Dubai for receiving training in
handling of arms and ammunitions and explosives from
the agents of ISi to commit terrorist acts in India. He
attended conspiratorial meetings during the month of
March 1993 at the residence of '8' and A-96 for making
H
52 SUPREME COURT REPORTS (2013] 15 S.C.R.

A plans to commit terrorist act. He also participated along
with other co-conspirators in loading the explosives like
ROX fitted with time device detonators in various vehicles
during preparation of vehicle bombs in the intervening
night between 11/12-3-1993. He surveyed and conducted
s reconaissence of the Stock Exchange Building and Air
India Building on 10.03.1993 for causing explosions
there. Therefore, it is established that the appellant was
well aware of the conspiracy right from the inception and
also of the consequences of his acts. [para 409, 413-414]
C [533-F; 540-E-H; 541-A]

16.4. It is evidently clear from the participation of A-
16 in all the important events and his presence in the
conspiratorial meetings that he was an integral part of the
conspiracy and knew everything about it. It was not the
D case that he was merely following the instructions. The
testimony of the approver corroborates the confession
of the accused as well as confessions of other co-
accused in all material particulars. The approver was one
of the conspirators and he was a party to all the landings,
E meetings, training and also went to plant the explosives
laden vehicle at the Shiv Sena Bhawan. The account of
the conspiratorial meetings, training and other events is
reliable and fits in to the chain of events which has
already been established by the confessions of various
F accused. [para 415] [541-B-D]

16.5. The evidence of the approver (PW 2), the eye-
witnesses (PW 11, PW 12 and PW 445), the , experts and
other witnesses, namely, PW 363, PW 329, PW 445 clearly
G establish the involvement of A-16 in the explosions that
took place at the Stock Exchange building, Air India
building and the Shiv Sena Bhawan. It is established that
A-16 was an active member of the conspiracy which led
to the blasts at various places in Bombay and caused
many deaths, injuries and loss to property. The
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 53
MAHARASHTRA, THR. CBI , BOMBAY
l
involvement of the appellant in the entire conspiracy A
establishes the critical role played by him in the blast.
[para 430-431) [560-A-B, DJ

16.6. In view of the confessional statement of the
appellant (A-16), the confessional statements of other co- B ·
accused persons, the statement of approver (PW-12) as
also the eye-witnesses along with other witnesses duly·
examined, the prosecution has produced sufficient
evidence against the appellant to bring home the charges
framed against him. [para 432) [560-E]
c
17. After meticulous examination of confessional
statements of the accused and the co-accused, the
recoveries made, and other evidences it establishes
undoubtedly the guilt of all the death convicts. [para 474)
[588-A-B] D

QUANTUM OF SENTENCE:

18.1. It is manifestfrom the bare reading of judgments
on death penalty from 1950 till date that the judiciary has
always exercised its discretion in awarding this extreme E
penalty with great circumspection, caution and restraint.
The dictum in Bachan Singh paraphrases that the duty
cast upon the judges in deciding the appropriate
sentence is a matter of judiciousness and not of law. [para
476] [588-E-F; 589-A] F

Bachan Singh vs. State of Punjab AIR 1980 SC 898 -
relied on

18.2. Section 3(2)(i) of TADA prescribes death or life
imprisonment in alternative as the penalty for a terrorist G
act. It is noticeable from the transformation in the
sentencing policy that the courts were required to look
into each and every case on its own merits, to determine
the appropriate sentence for the offender. [para 477] [589-
D-E] H ..
54 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 18.3. The changes, which the Code has undergone
in the last few decades, clearly indicate that Parliament
is taking note of contemporary criminological thought
and movement. After the new Code of Criminal
Procedure, 1973 which came into force with effect from
B 1st April, 1974, imprisonment for life would be the rule and
a sentence of death an exception. Though TADA is a
special Act, the application of the Code of Criminal
Procedure is permissible to the extent of its consistency
with the Act. [para 478-479] [589-E-F; 590-0]
c Mithu vs. State of Punjab 1983 (2) SCR 690 = (1983) 2
SCC 277; Jagmohan Singh vs. State of UP 1973 (2) SCR
541=(1973)1 sec 20 - referred to.

18.4. Amended s. 354(3) of the Code mandates that
D when the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
the reasons for the sentence awarded, and, in the case
of sentence of death, the special reasons for such
E sentence. As an outcome, the discretion to impose the
sentence of death has been curbed to the extent of
stating the 'special reasons' and judges are left with the
task of discovering the 'special reasons'. [para 479] [590-
E-F, G]
F Dalbir Singh and Ors. vs. State of Punjab 1979
(3) SCR 1059 = (1979) 3 SCC 745 - relied on

Bishnu Deo Shaw vs. State of West Bengal 1979
(3) SCR 355 = (1979) 3 SCC 714; Rajendra Prasad vs. State
=
G of UP 1979 (3) SCR 78 (1979) 3 SCC 646 - referred to.

18.5. Enactment of sub-s.(2) of s. 235 CrPC is an act
of affirming the new trend in penology, which mandates
the courts to consider various factors such as the prior
H criminal record of the offender, his age, employment,
YAKUB ABDUL RAZAK MEMON v. STATE OF 55
MAHARASHTRA, THR. CBI , BOMBAY

educational background, home life, sobriety and social A
adjustment, emotional and mental condition, and the
prospects of his returning to normal path of conformity
with the law etc. in deciding the quantum of sentence. In
this background of standards, the judiciary with the aid
of s. 235(2) ascertained the 'special reasons' pertaining B
to the criminals as required by s.354(3) of the Code to
impose death penalty. The majority view in Bachan Singh,
gave a wider interpretation to the term "special reasons"
by embracing within its ambit both the circumstances
connected with the particular crime and the criminal. c
Upshot of this interpretation is that the 'special reasons'
required for confirming the death sentence u/s 302 or in
the context of this case in s.3(2)(i) of TADA will have to
be identified by balancing the aggravating and mitigating
or extenuating circumstances. [para 485, 486 and 490]
0
[594-D-F; 597-C-D]

18.6. While determining the aggravating
circumstances, relative weight ought to be given to both
criminal and the crime and an identical approach must be
adhered to for ascertaining the mitigating circumstances. E
Since these two aspects are interwoven, it is difficult to
segregate the two to state that all circumstances relating
to crime will be aggravating, likewise that all
circumstances relating to criminal are mitigating. The
aggravating circumstances pertaining to both crime and F
criminal are the reasons, which can be against the
accused; likewise the mitigating circumstances
marshalled from both crime and criminal can be the
reasons in favour of the accused. A careful evaluation of
aggravating and mitigating circumstances pertaining to G
both criminal and crime is the approach to ascertain the
special reasons for imposing the extreme penalty on a
person. Thus, the two cardinal factors, viz., one, the
penalty imposed must be proportionate to the gravity of
the crime and second, the degree of responsibility of the H
56 SUPREME COURT REPORTS [2013] 15 S.C.R.

A offender must be taken into account in determining the
sentence for an individual accused in addition.to
aggravating and mitigating circumstances. [para 491-
493] [597-E-G, H; 598-A-Cl,

B Capital sentence to appellant-accused A-1:

18.7. The appellant-accused A-1 is the younger
brother of 'AA-2', who is one of the masterminds behind
the blasts. A-1 was in a position of authority, particularly,
he had played a significant role in the context of the
C blasts which is important while determining the sentence.
The confessional statements of co-accused establish the
dominating position of A-1 in comparison with other 10
accused-appellants. The following conduct of A-1 along
to the co-conspirator family members may be relevant:-
D
a. The confessional statements of various co-
accused made a mention that 'AA-2' had
instructed them to stay in touch with A-1 for
further instructions. Thus, A-1 assumed the
role of 'AA-2' in India during his absence. As
E
an outcome, 'AA-2' gave the commands to A-
1, who in turn passed them to other accused
thereby signifying the trusted position that A-
1 obtained from 'AA-2', apart from being just a
younger brother.
F
b. A-1 's role was not limited only to the extent of
correspondence between the masterminds
and all other accused but he was also
entrusted with task of handling the explosive
G bags and for their safe keeping.

c. Furthermore, he was actively involved in
hawala transactions for the purpose of
facilitating the blasts on 12.3.1993.

H d. Besides, he acquired tickets both for Dubai
YAKUB ABDUL RAZAK MEMON v. STATE OF 57
MAHARASHTRA, THR CBI , BOMBAY

and Pakistan for transporting the other A
accused-appellants to the respective places
for the purpose of training and coaching them
in envisaging their participation for the blasts
in Bombay.[para 496 and 498] [598-G-H; 599-
A, 8-D] B

18.8. Essentially, A-1 's deeds can't be viewed distinct
from the act of 'AA-2'. Therefore, both owe an equivalent
responsibility for the blasts. They were the architects of
the blasts, without whom the plan would have never seen C
the daylight. From this conduct, A-1 was one of the
'driving sprit' behind the plan of the 1993 blasts, whereas
the other appellants played a far lesser role and thus a
lesser contribution to the crimes resulting from this plan.
To be clearer on the dominant position, the blasts on 12-
3-1993 was at the discretion of the masterminds, as they D
had the effective control over the incident. It is this
effective control over the incident, which is absent in the
role played by rest of the appellants. [para 499] [600-A-
C]
E
16.9. It is true that there is no direct act attributed to
A-1 as far as parking of the explosives filled vehicles in
different localities are concerned. But without the
· planning of conspirators for which A-1 was a party too,
the explosives and ammunition required for the execution F
wouldn't have entered into the country and as a
consequence the execution itself wouldn't have
materialized. Furthermore, it is not conceivable to
envisage that these principal perpetrators will take the
execution in their hands. So they targeted the meek souls G
who were underprivileged and easily impressible to
accomplish their ulterior motive. It is also a proved fact
that the family members of AA-2 including A-1 fled the
country anticipating detention for their illegal acts. Thus,
it can safely be concluded that no offence might have H
58 SUPREME COURT REPORTS [2013] 15 S.C.R.

A taken place at all but for the instigation by the
absconding accused and A-1. Therefore, the dominant
position of the accused is an aggravating factor by itself,
as it gives the status of direct responsibility. [para 501-
502] (600-G-H; 601-A-C]
B
18.10. Following aggravating circumstances emerge
against A-1:

i. A-1 was one of the brains behind the hatching
of larger conspiracy for the Bombay Bomb
c Blasts in 1993.

ii. The dominant position and significant role
played by A-1 is a factor that may aggravate his
punishment.
D iii. The "vulnerability of the victims" and "the
depravity of the crimes" constitute additional
aggravating circumstances.

iv. Crime of terrorism is in itself an aggravating
E circumstance as. it carries a "special
stigmatization" due to the deliberate form of
inhuman treatment it represents and the
severity of the pain and suffering inflicted.

v. A-1 was part of the deliberate choosing of
F
localities like Century Bazaar, Zaveri Bazaar,
Katha Bazaar, Stock Exchange Building etc.
where there was more prospect of public
gathering. The manner of its execution and its
design would put it at the level of extreme
G atrocity and cruelty.(para 503] (601-C-H; 602-
A]
18.11. Following mitigating circumstances were
pleaded on behalf of A-1:
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 59
MAHARASHTRA, THR. CBI , BOMBAY
i. He is a Chartered Accountant by profession A
and a respectable person in the society before
the occurrence of this incident.

ii. There is no overt act committed by the
accused himself. In fact, the act of A-1 B
returning to India unlike other. absconders is
in itself a mitigating circumstance in his
favour.

iii. No criminal antecedent.
c
iv. He suffers from depression since 1996.

v. He had served more than 19 years in jail. [para
504) [602-8-F]

18.12. In the considered opinion, of this Court, the D
lack of prior criminal record is a mitigating factor; other
mitigating circumstances are not at the higher pedestal
to bargain for reduction of sentence. [para 505) [602-F-
G]
E
18.13. Under the established jurisprudence, the two
factors- a commanding position and a crime of 'utmost
gravity' ordinarily - merit the extreme penalty even
accounting for the guilty plea and mitigating factors. This
is the special reason, which warrants death penalty to the F
accused. Therefore, having taken into account and
weighed the totality of A-1 's culpability and all the
particular circumstances of the case, this Court concurs
with the decision of the Designated Court and confirms
the sentence of capital punishment to A-1. [para 506 and G
507) [603-A-C]

LIFE SENTENCE to other appellants-accused A-32, A-36,
A-39, A-44, A-10, A-29, A-9, A-11, A-12 and A-16:

18.14. There is a significant difference in the role H
60 SUPREME COURT REPORTS [2013] 15 S.C.R.

A played by A-1 and the rest of the appellants. A-1 as well
as other absconders were the real conspirators who
hatched the scheme for such a tragic act; whereas the
other 10 appellants i.e A-32, A-36, A-39, A-44, A-10, A-29,
A-9, A-11, A-12 and A-16 were mere subservient
B subordinates whose knowledge and acquaintance might
have been restricted to their counterparts. Thus, A-1 and
all the absconding accused were the archers whereas
rest of the appellants were the arrows in their hands.
[para 500) [600-D-F]
c 18.15. These 10 accused-appellants have traded the
freedom of choice for the freedom to commit atrocities.
Though the incident of bomb blasts is not a brainchild
of these appellants, yet they turned the conspirators'
orders into action by executing the blasts for which they
D are liable for the consequence of their acts. Every person
is responsible for his or her actions and he/she can't
evade the accountability by placing the responsibility on
another person. At the same time, our legal system
mandates that the sentence shall reflect the relative
E significance of the accused's role. [para 509) [603-D-F]

18.16. The following aggravating circumstances
remain the same in respect of the 10 accused-appellants:

1. These 10 accused-appellants underwent
F special training in Pakistan for the purpose of
executing the blasts in India.

2. These accused persons/individuals parked the
vehicles with explosives at different spots as
G directed by their masterminds for the
explosion of bombs.

3. Crime of terrorism is in itself an aggravating
circumstance as it carries a "special
stigmatization" due to the deliberate form of
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 61
MAHARASHTRA, THR. CBI , BOMBAY

inhuman treatment it represents and the A
severity of the pain and suffering inflicted.

4. The "vulnerability of the victims" and "the
depravity of the crimes" constitute additional
aggravating circumstances. B

5. The manner of execution of crime and its
design is at a level of extreme atrocity and
cruelty. [para 510] [603-H; 604-A-D]

18.16. The mitigating circumstance of these C
appellants differ from individual to individual. The
mitigating circumstances can be classified into seven
heads, namely, (i) age, (ii) act of remorse, (iii) no prior
criminal antecedents, (iv) co-operation with the
investigation, (v) family circumstances, (vi) ill health and o
(vii) delay in execution. The first five aspects have been
accepted as mitigating circumstances by the established
practices of this Court. As far as 'ill health' is concerned,
it is not a mitigating but a special circumstance which
may aid in reduction of sentence. The vital distinction E
between the 'special circumstance' and 'mitigating
·circumstance' appears to lie in the fact that the reduction
in penalty is given not owing to any merit- earned on the
part of the accused, but because of compelling 'reasons
of humanity', illustrating a humane approach to F
sentencing in this context. [para 510 and 512] [604-E; 612-
F-H; 613-A]

18.17. Another vital factor stated as mitigating
circumstance in all these appeals is that they have all
been imprisoned for around 20 years and they continue G
to be in jail. Nevertheless, as has been held by the
Constitution Bench in Triveniben*, the sentence can't be
commuted merely on the ground of delay alone. It was
further observed that no absolute or unqualified rule can
be laid down that in every case in which there is a long H
62 SUPREME COURT REPORTS [2013] 15 S.C.R.

A delay in the execution of death sentence, the sentence
must be substituted by life imprisonment. Thus, no
accused can claim as a matter of right to commute his/
her death sentence on the ground of delay in the judicial
process. However, noting the lengthy incarceration
s suffered by the accused over a period of two decades,
as an exceptional scenario, this Court is inclined to
consider the long delay as a mitigating circumstance but
less significance will be attached to it in comparison with
other six circumstances.[para 513] [613-8-E]
c *Triveniben vs. State of Gujarat 1989 (1) SCR 509 =
(1989) 1 sec 678 - referred to

18.18. Furthermore, all these 10 accused-appellants
belong to the lower strata of society, most of whom don't
•
O even have any regular job for their livelihood. Their
personal life was relatively moderate before this incident.
These appellants have fallen prey to the ulterior motive
of the conspirators for accomplishing their hidden
motives, which was to spread terror among the people.
E Such evidence can in no way exonerate or excuse them
for their participation in the commission of crime.
However, it provides a somewhat nuanced picture and
may imply that their participation in the massacres
resulted from misguided notions rather than extremism.
F
Technically, it is these 10 appellants who parked the
explosive filled vehicles in the respective destinations.
However, it is actually the masterminds' strategy, which
was executed by the subservient minions i.e these 10
appellants. This may not help in complete exoneration of
the liability of these 1O appellants but the degree of
G punishment must necessarily reflect this difference. It is
vital to remember that 'but for' the masterminds, this blast
should have never seen the daylight. [para 514-516] [613-
E-G; 614-8-C]

H 18.19. Therefore, to differentiate the degree of
YAKUB ABDUL RAZAK MEMON v. STATE OF 63
MAHARASHTRA, THR. CBI , BOMBAY
punishment to A-1 and other 10 appellants, the ends of A
justice would be served if the death sentence of these ten
appellants be commuted to imprisonment for life. [para
517] (614-D]

18.20. With a note of caution, it is reiterated that it is B
ordinarily expected that two accused convicted of similar
crimes in similar circumstances should not in practice
receive very different sentences, often the differences are
more significant than the similarities, and the mitigating
and aggravating factors dictate different results. C
Therefore, the lesser sentence imposed on these 10
appellants cannot be a precedent in other cases and
every case must be decided according to its facts and
circumstances. (para 518] (614-D-F]

·State of UP. vs. Sanjay Kumar (2012) 8 SCC 537 - D
referred to.

Life Imprisonment is Rigorous Imprisonment:

19.1. There was a misperception that life
imprisonment is distinct from the punishment of rigorous E
or simple imprisonment shown in clause (4) of s. 53 of the
Code of Criminal Procedure. This issue was clarified in
Md. Munna. Therefore, "imprisonment for life" is to be
treated as "rigorous imprisonment for life". [para 520]
(617-F-G; 618-A] F

Md. Munna vs. UO/ and Ors.!Kartick Biswas vs. State of
West Bengal and Ors. 2005 (3) Suppl. SCR 233 = (2005)
7 sec 417 - referred to.

Meaning of Life Imprisonment: G

19.2: Life imprisonment cannot be equivalent to
imprisonment for 14 years or 20 years or even 30 years,
rather it always means the whole natural life. This Court
in Sangeet* has observed that there is misconception that H
64 SUPREME COURT REPORTS [2013] 15 S.C.R.

A a prisoner serving life sentence has an indefeasible right
to release on completion of either 14 years or 20 years
imprisonment. A convict undergoing life imprisonment is
expected to remain in custody till the end of his life,
subject to any remission granted by the appropriate
s Government u/s 432 of the Code, which in turn is subject
to the procedural checks mentioned in the said provision
and to further substantive check in s. 433-A of the Code.
This Court has always clarified that the punishment of a
fixed term of imprisonment so awarded would be subject
c to any order passed in exercise of clemency powers of
the President of India or the Governor of the State, or
remission and commutation guaranteed u/s 432 of the
Code, as the case may be. Further, the power to grant
remissions and to commute sentences is coupled with a
duty to exercise the same fairly, reasonably and in terms
0
of restrictions imposed in several provisions of the Code.
[para 521, 522 and 524] [618-B-C, F; 619-B-D]

*Sangeet and Anr. vs. State of Haryana, 2012 (11) Scale
140; and State of UP. vs. Sanjay Kumar (2012) 8 SCC 537
E - referred to.

19.3. In order to check all arbitrary remissions, the
Code itself provides several conditions. Sub-ss. (2) to (5)
of s.432 of the Code lay down basic procedure for making
F an application to the appropriate Government for
suspension or remission of sentence either by the
convict or someone on his behalf. This Court is of the
view that exercise of power by the appropriate
Government under sub-s. (1) of s.432 of the Code cannot
G be automatic or claimed as a right for the simple reason,
that this is only an enabling provision and the same
would be possible subject to fulfilment of certain
conditions. Those conditions are mentioned either in the
Jail Manual or in statutory rules. This Court, in various
decisions, has held that the power of remission cannot
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 65
MAHARASHTRA, THR. CBI , BOMBAY

be exercised arbitrarily. The decision to grant remission A
has to be well informed, reasonable and fair to all
concerned. The statutory procedure laid down in s. 432
of the Code itself provides this check on the possible
misuse of power by the appropriate Government. [para
523] [618-F-H; 619-A] B

19.4. Therefore, subject to ss. 432 and 433 of the
Code and clemency powers of President and Governor,
as vested by the Constitution under Arts. 72 and 161,
respectively, the appellants- accused A,32, A-36, A-39, A- C
44, A-10, A-29, A-9, A-11, A-12 and A-16 shall be
imprisoned for life until their death. The executive should
take due consideration of judicial reasoning before
excising the remission power. [para 525] [619-D-E]

Death Ref. Case (Crl.l No. 1 'Of 2011 D

19.5. The death reference with regard to A-1 is
confirmed; and for rest of the appellants convicted under
this part, the death sentence is commuted into life
imprisonment. [para 527] [619-H] E
TERRORISM:

20.1. The quantity of ROX that was used in blasts
clearly shows and establishes the fact that the blasts
were intended to tear the economic, moral and social F
fabric of the nation and to induce communal tensions.
The planning, timing and the intensity of the blasts
establish that the blasts were synchronised so as to
cause maximum damage to life and property. [para 377
and 431] [476-F-H; 560-C-D] G
20.2. The term "terrorism" is a concept that is
commonly and widely used in everyday parlance. There
is no particular form of terror and, as such, anything
intended to create terror in the minds of general public
H
66 SUPREME COURT REPORTS [2013] 15 S.C.R.

A in order to endanger their lives and damage to public
property may be termed as a terrorist act and a
manifestation of terrorism. Acts of terrorism can range
from threats to actual assassinations, kidnappings,
airline hijackings, bomb scares, car bombs, building
B explosions, mailing of dangerous materials, computer- •
based attacks and the use of chemical, biological, and
nuclear weapons - weapons of mass destruction
(WMD). Another trend common to both national and
international terrorism is the emergence of terrorist
c groups motivated by religious fanaticism, though
terrorism is abhorred and condemned by all the religions
of the world. Terrorists conduct planned and coordinated
attacks targeting innocent civilians with a view to infuse
terror in the minds of people. India, particularly, has been
D a victim on several occasions. [para 433-434 and 442]
[560-F-G; 561-B; 564-F-H]

20.3. In spite of several international conventions and
Multilateral Agreements and domestic and international
legislations to counter terrorism, it is a major problem that
E is reoccurring over the globe in many different forms. It
is a plague for a nation or society that should be
eradicated. There is a dire need to best deal with it and
to make sure to take preventive actions. In the
considered view of this Court, the following procedures/
F rules must have to be adopted while dealing with it:-

(i) Better governance and law enforcement is the
real need of the hour.

(ii) We must formulate long term as well as short
G term strategies to combat terrorism.

(iii) More advanced technologies must be used for
communication among law enforcement
agencies.
H
YAKUB ABDUL 8fa,ZAK MEMON v. STATE OF 67
MAHARASHTRA, THR. CBI , BOMBAY
(iv) Fighting terrorism would require a long term A
planning and sustained multi-dimensional
action.

(v) There should be proper coordination between
all the agencies with high level of motivation
B
and a quick response system must be
established to tackle the menace immediately.

(vi) Rule of Law must always be upheld and it is
the duty of the constitutional authority to
defend the life and limb of its subjects. [para C
435, 439 and 451] [561-D; 563-D; 576-C-H]

Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra
& Ors. 1994 (1) SuppL SCR 360 = (1994) 4 SCC 602;
Girdhari Parmanand Vadhava vs. State of Maharashtra, 0
1996(6) Suppl. SCR 631=(1996)11SCC179; State through
Superintendent of Police, CBI/SIT vs. Nalini & Ors., 1999
(3) SCR 1 = (1999) 5 SCC 253; Mohd. Khalid vs. State of
West Bengal 2002 (2) Suppl. SCR 31 = (2002) 7 SCC 334;
Nazir Khan & Ors. vs. State of Delhi 2003 (2) Suppl. E
~ SCR 884 = (2003) 8 SCC 461; Madan Singh vs. State of
Bihar 2004 (3) SCR 692 = (2004) 4 SCC 622; People's
Union for Civil Liberties and Anr. vs. Union of India 2003 (6)
Suppl. SCR 860 = (2004) 9 SCC 580 - referred to

Black's law dictionary; The 1937 Convention for the F
Prevention and Punishment of Terrorism; The International
Convention for the Suppression of Terrorist Bombings, 1997;
The United Nations Security Council 2004 Resolution;
League of Nations Convention (1937); and UNSC
Resolution No. 1373 adopted under Chapter VII of the UN G
Charter - referred to.

Role of Pakistan in the Blasts:

20.4. It is devastating to state that Pakistan being a
member of the United Nations, whose primary object is H
68 SUPREME COURT REPORTS [2013] 15 S.C.R.

A to maintain international peace and security, has
infringed the recognized principles under international
law which obligate all states to prevent terrorist attacks
emanating from their territory and inflicting injuries to
other states. As per Para 2 of UNSC Resolution No. 1373
B adopted under Chapter VII of the UN Charter, every State
has the obligations to perform as mentioned in the
judgment. A hoste-State that has the capability to prevent
a terrorist attack but fails to do so will inherently fail in
fulfilling its duty under Article 2(4) since terrorism
c amounts to force by definition. [para 452 and 455] [577-
C, E; 578-8]

20.5. In the relevant scenario, the accused persons
were facilitated by ISi operatives in Pakistan for training
without observing any immigration formalities, which
D means, they had a green channel entry and exit in
Pakistan. Their confessions reveal that the accused
received training from the ISi officials themselves on
some occasions. A large number of convicted accused
and absconders have received training in making of
E bombs by using ROX and other explosives, handling of
sophisticated automatic weapons like AK-56 Rifles and
handling of hand grenades in Pakistan. These events
unveil the tolerance and eni;ouragement shown by
Pakistan towards terrorism. The training received in
F Pakistan materialized in the unfortunate serial blasts in
Bombay on 12.3.1993. A responsible State owes an
obligation not only to another state but also to the
international community as a whole. It is sincerely hoped
that every State will strive towards the same. [para 453,
G 456 and 457] [577-F-G; 579-C-D; 580-G]

Role of Police Officers:

20.6. The role of police officials has become more
vital in the present century owing to the frequent terror
H attacks occurring across the country. It is important to
YAKUB ABDUL RAZAK MEMON v. STATE OF 69
MAHARASHTRA. THR. CBI, BOMBAY

take note of increasing use of explosive devices by the A
terrorists not only because of their high damage potential
but also due to their easy mobility. Thus, the police have
a specific and special role, a duty and a responsibility, to
curb the conveyance of explosives by vigilant patrolling
and search and seizure, if required. Section 20 of the B
Arms Act, 1959 empowers them to ar.rest persons
conveying any arms or ammunitions under suspicious
circumstances. If the Mumbai police officials had been
able to curtail the conveyance of the contraband in
January and February 1993, the occurrence of 12th c
March 1993 could have been avoided. [para 459 and 461]
[581-C-E, G]

20.7. In the instant case, some of the police personnel
themselves have taken active part in smuggling and
transportation of arms and explosives into Bombay with D
the help and assistance of a Customs Officer.· Bribe
money changed hands in this connection and substantial
amounts were seized from some of the police personnel
during investigation. [para 462] [582-A-G)
E
Role of Customs Officers:

20.8. The Customs officials primarily have a duty to
prevent smuggling and ensure that everything that enters
into or goes out of the country is brought or sent strictly
F
in accordance with the provisions of the law. It is
shattering to notice that several customs officers,
including the Commissioners of Customs, played an
active role as members of conspiracy and implemented
the plan. Every kind of smuggling activity is devastating
to the economy, but the smuggling of dangerous arms G
and ammunitions causes wreckage not only to the
economy but also to people's lives. The occurrence of
Bombay Bomb Blasts is an evidence that such incidents
take place along the Indian coastline due to the lack of
H
70 SUPREME COURT REPORTS [2013] 15 S.C.R.

A moral ethics and misconduct on the part of the officials.
[para 464-466) [583-C-D, E-G]

20.9. From the evidence on record, it is evident that
without the help of the customs officials, the accused
would not be in a position to smuggle the weapons
8
required for the said blasts. A rationally structured and
effective customs department is the need of the hour in
order to curtail illegal imports which can have frightening
ramifications upon the nation's economy and citizens'
C security. [para 468) [587-E-F]

Need to improve vigilance in the Indian Maritime Zone and
role of Coast Guards:

20.10. India being a maritime nation, the role of Coast
0 Guards is very vital for shielding the coast from external
attacks. The coastal belt is surveyed by three teams of
officers firstly, the Indian Navy, which is responsible for
overall seaward security of long coastline. Secondly, the
Coast Guards who guard the Exclusive Economic Zone
E (EEZ) in order to prevent poaching, smuggling and other
illegal activities in the EEZ. Lastly, the customs officials,
who scrutinize and monitor every commodity which
enters the Indian boundaries. The occurrence of Bombay
bomb blasts on 12.3.1993 discloses a deficient
performance of the officials. Coast Guards being the
F strongest link in the security chain are bound to be
vigilant at sea and should be in full command of the
coast. The role of the coast guards is as important as any
military troops. Only well strategized coast guards and
high morale customs officers can prevent any
G opportunity for the terrorists to attack on our country via
our maritime boundary. [para 469, 471 and 473) [586-H;
587-A-B,C,E. G-H]
Case Law Reference:
H AIR 1956 All. 633 cited para 13
YAKUB ABDUL RAZAK MEMON v. STATE OF 71
MAHARASHTRA, THR, CBI , BOMBAY
AIR 1954 All. 104 cited para 14 A
1954 SCR 330 cited para 15
AIR 1969 Guj. 320 cited para 16
1979 (1) SCR 1114 cited para 17
AIR 1930 Pat. 148 cited para 18 B
1984 (2) SCR 50 cited para 19
1992 (1) Suppl. SCR 53 cited para 20
2008 (3) SCR 83 cited para 21
1992 (1) Suppl. SCR 108 cited para 22
c
2006 (7) Suppl. SCR 336 cited para 23
2006 (4) Suppl. SCR 872 cited para 24
1975 (1) SCR 710 cited para 25
D
1995 (1) SCR 456 referred to para 26
2001 (3) SCR 669 referred to para 29
1977 (2) SCR 901 referred to para 30
1977 (3) SCR 636 referred to para 32 E
1977 (3) SCR 711 referred to para 32
AIR 2004 SC 503 referred to para 32
2004 (1) SCR 854 referred to para 32
2001 (2) SCR 626 relied on para 32 F
AIR 1939 PC 43 referred to para 35
AIR 1949 PC 1 referred to para 35
AIR 1980 SC 898 relied on para 37
AIR 1976 SC 230 relied on para 37 G
1989 (2) SCR 498 relied on para 38
1981 (3) SCR 270 referred to para 39

H
72 SUPREME COURT REPORTS [2013] 15 S.C.R.

A
(2009) 5 sec 740 referred to para 40
1991 (2) SCR 256 referred to para 41
(2009) 6 ALT 677 referred to para 47
B (1962) 2 SCR 195 referred to para 61
(1873) 173 ER 502 referred to para 6~
AIR 1938 PC 130 referred to para. 63
(1962) 1 SCR 194 referred to para 63
c 1993 (3) SCR 543 referred to para 66
2009 (12) SCR 682 referred to para 66
1978 (1) SCR 781 referred to para 67
1963 SCR 253 referred to para 68
D 1970 (2) SCR 760 referred to para 68
(1980) 2 sec 465 referred to para 68
1981 (3) SCR 68 referred to para 68
2008 (6) SCR 1116 referred to para 69
E
1963 SCR 253 referred to para 70
AIR 1979 SC 1791 referred to para 70
2005 (4) Suppl. SCR 498 referred to para 71
1996 (1) Suppl. SCR 189 referred to para 72
F
1999 (3) SCR 1 referred to para 73
1988 (2) Suppl. SCR 24 referred to para 73
(2001) 1 sec 596 referred to para 74
G 2005 (2) Suppl. SCR 79 referred to para 74
2003 (1) SCR 119 referred to para 75
2002 (2) Suppl. SCR 31 referred to para 76
2011 (2) SCR 939 referred to para 87
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 73
MAHARASHTRA, THR. CBI , BOMBAY
2011 (4) SCR 817 referred to para 87 A
2011 (7) SCR 354 referred to para 87
2009 (8) SCR 719 referred to para 90
2001 (5) Suppl. SCR 54 referred .to para 91
2002 (3) SCR 622 referred to para 92 B

2008 (16) SCR 155 referred to para 93
(2003) 9 sec 673 referred to para 94
2007 (11) SCR 251 cited para 99
(2009) 7 sec 404 cited para 100
c
2005 (2) Suppl. SCR 79 cited para 101
2007 (2) SCR 289 cited para 102
1994 (3) Suppl. SCR 263 cited para 102
D
1994 (1) Suppl. SCR 360 cited para 102
(1956) 2 ALL ER 843 cited para 102
1905 AC 369 cited para 102
(1898) QB 547 cited para 102 E
2011 (1) SCR 997 relied on para 128
•
1953 SCR 546 relied on para 131
2001 (11) Suppl. SCR 433 relied on para 132
2004 (4) Suppl. SCR 1 relied on para 133 F
1963 Suppl. SCR 689 referred to para 133
1988 (2) Suppl. SCR 24 referred to para 133
1995 (3) Suppl. SCR 807 referred to para 136
2000 (1) SCR 200 relied on para 137 G
2001 (1) SCR 111 referred to para 138
2001 (3) SCR 840 referred to para 139
2002 (2) SCR 767 referred to para 140
H
74 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 2002 (3) SCR 622 referred to para 141
2010 (8) SCR 916 referred to para 146
2001 (2) Suppl. SCR 577 relied on para 146
(1968) 1 SCR 695 relied on para 189
B 1978 (2) SCR 174 relied on para 192
2000 (1) SCR 200 relied on para 202
2001 (1) SCR 111 relied on para 204
1990 (3) Suppl. SCR 340 relied on para 211
c 1994 (2) SCR 375 relied on para 213
(1995) 4 sec 255 referred to para 225
(1994) Cri.L.J. 1020 referred to para 226
(1979) 4 sec 526 referred to para 226
D
2003 (3) Suppl. SCR 958 referred to para 227
2002 (3) SCR 881 referred to para 227
2010 (14) SCR 1 referred to para 228
E 1994 (1) Suppl. SCR 360 referred to para 444
1996 (6) Suppl. SCR 631 referred to para 445
1999 (3) SCR 1 referred to para 447
2002 (2) Suppl. SCR 31 referred to para 447
F 2003 (2) Suppl. SCR 884 referred to para 448
2004 (3) SCR 692 referred to para 449
2003 (6) Suppl. SCR 860 referred to para 450
1983 (2) SCR 690 referred to para 477
G 1973 (2) SCR 541 referred to para 479
1979 (3) SCR 355 referred to para 480
1979 (3) SCR 78 referred to para 481
1979 (3) SCR 1059 relied on para 482
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 75
MAHARASHTRA, THR. CBI , BOMBAY
A
1989 (1) SCR 509 referred to para 513
(2012) a sec 537 referred to para 519
2005 (31 5uppl. SCR 233 referred to para 520
2012 (11) Scale 140 referred to para 524
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1728 of 2007.

From the Judgment & Order dated 25.10.2007 of the
Presiding Officer of the Designated Court, under TADA (P) Act, C
1987 of Bombay Blast Cases.Greater Bombay in Bombay
Blast Case No.1 of 1993.

WITH

Crl. A. No. 609-610/2008, 628-629/2008, 637-638/2008, 365/ D
2008, 864-865/2008, 897/2008, 941-942/2008 and Death Ref.
Case (Crl.) No. 1/2011.

Faisal Farook, Shubail Farook, Rauf Rahim, Priya Puri,
Farhana Shah, Satbir Pilania, Dr. Sushil Balwada for the
Appellant. E

Mukul Gupta, Satyakam, Anubhav Kumar, Anando
Mukherjee, Harsh N. Parekh for the Respondent.

The Judgment of the Court was delivered by
F
P. SATHASIVAM, J. Criminal Appeal No. 1728 of 2007.

1. This appeal and the connected matters have been
directed against the final orders and judgments of conviction
and sentence passed on various dates by the Presiding Officer G
of the Designated Court under Terrorist and Disruptive Activities
(Prevention) Act, 1987 (in short 'the TADA') for Bombay Bomb
Blast Case, Greater Bombay in BBC No. 1 of 1993. These
appeals have been filed under Section 19 of the TADA by the
accused against their conviction and sentence and by the CBI H
76 SUPREME COURT REPORTS [2013) 15 S.C.R.

A for confirmation of the death sentence and against the acquittal
of some of the accused persons.

2. Brief facts:

The case of the prosecution is as follows:
B
(a) Babri Masjid at Ayodhya was demolished on
06.12.1992. After its demolition, violence broke out throughout
the country. In order to take revenge of the said demolition,
Tiger Memon (AA) and Dawood Ibrahim, a resident of Dubai,
C formulated a conspiracy to commit a terrorist act in the city of
Bombay. In pursuance of the said object, Dawood Ibrahim
agreed to send arms and ammunitions from abroad. Tiger
Memon, in association with his men, particularly, the accused
persons, received those arms and ammunitions through sea-
D coasts of Bombay. In continuation of the said conspiracy, Tiger
Memon sent some of the accused persons to Dubai and from
there to Pakistan for training and handling in arms and
ammunitions.

(b) On 12.03.1993, the commercial hub of the country, the
E city of Bombay, witnessed an unprecedented terrorist act
sending shock waves throughout the world. In a span of about
two hours i.e., between 13:33 to 15:40 hours, a series of 12
bomb explosions took place one after the other at the following
twelve places in Bombay, namely, Bombay Stock Exchange,
F Katha Bazaar, Sena Bhavan, Century Bazaar, Mahim
Causeway, Air India Building, Zaveri Bazaar, Hotel Sea Rock,
Plaza Theatre, Juhu Centaur Hotel, Air Port Bay-54 and Air Port
Centaur Hotel. In the abovesaid incident of serial bombings,
257 human lives were lost, 713 persons were seriously injured
G and properties worth about Rs. 27 crores were destroyed. This
was the first ever terrorist attack in the world where ROX
(Research Department Explosive) was used on a large scale
basis after the World War 11.

(c) The aforesaid calculated act of terror was carried out
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 77
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

with utter disregard to human life and dignity. The object of the A
crime was to incite communal violence and to overawe and
weaken the government, disturb social harmony and to break
up the social, political and economic order of the country. This
overt act of violence not only caused physical and mental
damage but also left a psychological impact on society as a B
wholE;l as the lives of several citizens were completely destroyed.

(d) The conspiratorial acts leading to one of the aforesaid
object began on or before 06.01.1993 at a meeting in Hotel
Persian Darbar, Panvel, wherein the following accused persons, C
viz., Md. Ahmed Dosa (AA), Md. Salim Mira Moiddin Shaikh
@ Salim Kutta (A-134), Md. Kasam Lajpuria (A-136),
Ranjitkumar Singh Baleshwar Prasad (A-102) and Md. Sultan
Sayyed (A-90) met and organized the landing of fire arms and
ammunitions and hand grenades which was to take place on
the coast of Dighi Jetty in Raigad District of State of D
Maharashtra on 09.01.1993. On the said date, Md. Dossa (AA)
smuggled and sent a consignment of arms and ammunitions
at Dighi Jetty, Raigad in connivance with Md. Sultan Sayeed
(A-90), who received illegal gratification for the same. The
following persons were also involved in the landing at Dighi E
Jetty, namely, Uttam Shantaram Poddar (A-30), Abdulla Ibrahim
Surti (A-66), Ashok Narayan Muneshwar (A-70), Faki Ali Faki
Ahmed Subedar (A-74), Janardhan Pandurang Gambas (A-81),
Jaywant Keshav Gurav (A-82), Krishna Sadanand Mokal (A-
83), Krishna Tukaram Pingle (A-84), Manohar Mahadeo More F
(A-87), Md. Sultan Sayyed (A-90), Pandharinath Madhukar
Mahadik (A-99), Ramesh Dattatray Mali (A-101), Ranjitkumar
Singh Baleshwar Prasad (A-102), Sayed @ Mujju Ismail
Ibrahim Kadri (A-104), Sayed Ismail Sayed Ali Kadri (A-105),
Srikrishna Yeshwant Pashilkar (A-110), Somnath Kakaram G
Thapa (A-112), Sudhanwa Sadashiv Talwadekar (A-113), Vijay
Krishnaji Patil (A-116), Jamir Sayyed Ismail Kadri (A-133), Md.
Salim Mira Moiddin Shaikh @ Salim Kutta (A-134) and Md.
Kasam Lajpuria (A-136). The said meeting dated 06.01.1993
H
78 SUPREME COURT REPORTS [2013] 15 S.C.R.

A was not a sudden meeting but was pre-arranged and pre-
planned.

(e) On 19.01.1993, another meeting was held at Dubai
wherein Dawood @ Dawood Taklya Mohammed Phanse @
Phanasmiyan (A-14), Dawood Ibrahim and Tiger Memon (both
8
absconding) were present and detailed discussions were held
whereafter Tiger Memon agreed to arrange for landing of arms
and ammunitions and explosives which were to.be sent to India
by sea route for the purpose of committing the aforesaid
terrorist act. Pursuant to the above, between 02-08.02.1993,
C two more such landings of arms and ammunitions, detonators,
hand grenades and explosives like ROX took place at
Shekhadi Coast under Taluka Shrivardhan in Raigad District
through landing agent A-14, Sharif Abdul Gafoor Parkar@
Dadabhai (A-17) (deceased) and Rahim Abbas Karambelkar
D @ Rahim Laundrywala. In the said landing, the following
persons also played an active role, namely, Md. Shoaib
Mohammed Kasam Ghansar (A-9), Asgar Yusuf Mukadam (A-
10), Abdul Gani Ismail Turk (A-11), Parvez Nazir Ahmed Shaikh
(A-12), Dawood @ Dawood Taklya Mohammed Phanse @
E Phanasmiyan (A-14), lmtiyaz Yunusmiya Ghavte (A-15), Md.
Farooq Mohammed Yusuf Pawale (A-16), Sharif Abdul Gafoor
Parkar@ Dadabhai (A-17), Suleman Mohammed Kasam
Ghavate (A-18), Yeshwant Nago Bhoinkar (A-19), Munna @
Mohammed Ali Khan @ Manojkumar Bhavarlal Gupta (A-24),
F Muzammil Umar Kadri (A-25), Raju Laxmichand Jain @ Raju
Kadi (A-26), Rashid Umar Alware (A-27), Sayyed Abdul
Rehman Shaikh (A-28), Shahnawaz Abdul Kadar Qureshi (A-
29), Abdul Aziz Haji Gharatkar (A-34), Ashfaq Kasim Havaldar
(A-38), Khalil Ahmed Sayed Ali Nasir (A-42), Mohammed Rafiq
G @ Rafiq Madi Musa Biyariwala (A-46), Sardar Shahwali Khan
(A-54), Sarfaraz Dawood Phanse (A-55), Shahjahan Ibrahim
Shaikhdare (A-56), Shaikh Ali Shaikh Umar (A-57), Shaikh
Mohammed Ethesham Haji Gulam Rasool Shaikh (A-58),
Sharif Khan Abbas Adhikar (A-60), Sajjad Alam @ Iqbal Abdul
H Hakim Nazir (A-61), Tulsiram Dhondu Surve (A-62), Abu Asim
YAKUB ABDUL RAZAK MEMON v. STATE OF 79
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]

Azmi (A-63), Nasir Abdul Kader Kewal@ Nasir Dakhla (A-64), A
Gulam Hafiz Shaikh @ Baba (A-73), Jaywant Keshave Gurav
(A-82), Liyakat Ali Habib Khan (A-85), Mohmmed Sultan
Sayyed (A-90), Parvez Mohammed Parvez Zulfikar Qureshi (A-
100), Ranjitkumar Singh Baleshwar Prasad (A-102), Somnath
Kakaram Thapa (A-112), Sudhanwa Sadashiv Talwadekar (A- B
113), Shahnawaz Khan s/o Faiz Mohammed Khan (A-128),
Mujib Sharif Parkar (A-131), Mohammed Shahid Nizamuddin
Quresh (A-135) and Eijaz Mohammed Sharif@ Eijaz Pathan
@Sayyed Zakir (A-137).

(f) Between February to March 1993, the following persons
c
were sent to Pakistan via Dubai by Tiger Memon (AA) and
Dawood Ibrahim (AA) for receiving training in handling of fire
arms. use of rocket launchers and explosives, in particular, ROX
for achieving the common object of the conspiracy, namely,
Farooq Mohammed Yusuf Pawale (A-16), Shahnawaz Abdul D
Kadar Qureshi (A-29), Zakir Hussain Noor Mohammed Shaikh
(A-32), Abdul Khan @ Yakub Khan Akhtar Khan (A-36), Firoz
@ Akram Amani Malik (A-39), Nasim Ashraf Shaikh Ali
Barmare (A-49), Salim Rahim Shaikh (A-52), Nasir Abdul
Kader Kewal @ Nasir Dakhla (A-64), Salim Bismilla Khan @ E
Salim Kurla (Dead) (A-65), Faroow lliyas Motorwala (A-75),
Fazal Rehman Abdul Khan (A-76), Gui Mohammed @ Gullu
Noor Mohammed Shaikh (A-77), Mohammed Hanif Mohammed
Usman Shaikh (A-92), Mohammed Rafiq Usman Shaikh (A-
94), Mohammed Sayeed Mohammed lssaq (A-95), Niyaz F
Mohammed @ Islam Iqbal Ahmed Shaikh (A-98), Parvez
Mohammed Parvez Zulfikar Qureshi (A-100), Shaikh Ibrahim
Shaikh Hussain (A-108), Sayed Ismail Sayed Ali Kadri (A-105)
and Usman Man Khan Shaikh (A-115). All the above said
accused persons were received at Dubai Airport by Ayub G
Abdul Razak Memon (AA) and Tahir Mohammed Merchant @
Tahir Taklya (recently deported to India and arrested by the CBI
in the case being No. RC 1(s)/1993).

(g) Another batch, comprising of the following accused H
80 SUPREME COURT REPORTS [2013) 15 S.C.R.

A persons, namely, Shaikh Mohammed Ethesham Haji Gulam
Rasool Shaikh (A-58), Manzoor Ahmed Mohammed Qureshi
(A-88), Shaikh Kasam @ Babula I Ismail Shaikh (A-109),
Sultan-E-Rome Sardar Ali Gui (A-114), Abdul Aziz Abdul Kader
(A-126), Mohammed Iqbal Ibrahim s/o Shaikh Ibrahim (A-127),
B Shahnawaz Khan s/o Fair Mohammed Khan (A-128), Murad
Ibrahim Khan (A-130) and Mohammed Shahid Nizammudin
Qureshi (A-135) went to Pakistan for a similar training, however,
the said training programme was aborted and they had to return
from Dubai.
c (h) In March 1993, a weapons training programme was
also conducted at Sandheri and Borghat at the behest of Tiger
Memon (AA). In the said camp, training was imparted by"Tiger
Memon (AA), Anwar Theba (AA) and Javed Tailor @ Javed
Chikna (AA) to the following persons, namely, Abdul Gani Ismail
D Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12), Bashir Ahmed
Usman Gani Khairulla (A-13), Sharif Abdul Gafoor Parkar @
Dadabhai (A-17), Suleman Mohammed Kasam Ghavate (A-
18), Mohammed Iqbal Mohammed Yusuf Shaikh (A-23), Munna
@ Mohammed Ali Khan @ Manojkumar Bhavarlal Gupta (A-
E 24), Mohammed Main Faridulla Qureshi (A-43), Sardar
Shahwali Khan (A-54), Shaikh Ali Shaikh Umar (A-57), lssaq
Mohammed Hajwani (A-79), Shahnawaz@ Shahjahan
Dadamiya Hajwani (A-106) and Sikander lssaq Hajwani (A-
111 ). After completing the said training programme, A-17 and
F A-79 attempted to destroy the evidence by disposing off the
hand grenades in the Sandheri creek on or about 8th March
1993 to aid and abet the above offenders.

(i) On 04.03.1993, Tiger Memon called for a preparatory
G meeting at the Taj Mahal Hotel which was attended by Javed
Chikna (AA), Mohammed Mushtaq Moosa Tarani (A-44),
Sardar Shahwali Khan (A-54), Shaikh Ali Shaikh Umar (A-57),
Niyaz Mohammed @ Islam Iqbal Ahmed Shaikh (A-98) and
Mohammed Usman Jan Khan (PW-2) (Appro~). They
conducted reconnaissance of some of the targets on
H 04.03.1993 as well as on 05.03.1993.
YAKUB ABDUL RAZAK MEMON v. STATE OF 81
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

U) In order to achieve the said object, vehicles were A
purchased for planting explosives by Tiger Memon, Mohammed
Shafi Zariwala and Munaf Halari (all three absconding). Three
scooters were purchased through Munaf Halari (AA) who was
a close friend of Tiger Memon (AA). Three Commander jeeps
were also purchased through Mohammed Shafi Zariwala (AA) B
and he also bought two Maruti Vans and one Ambassador Car.
Mohammed Shafi Zariwala arranged all these vehicles through
Suleman Mohammed Lakdawala (PW-365). Two Maruti vans
of Blue and Red colour were also purchased through PW-365.

(k) On 07.03.1993, another meeting was held at the house C
of Shafi where Tiger Memon formed separate groups for
reconnaissance of the targets. PW-2, A-64 and A-100 were in
one group which was assigned the task to survey Shiv Sena
Bhawan and Sahar Airport.
D
(I) On 08.03.1993, another meeting was held at the
residence of Babloo where Tiger Memon called Javed Chikna,
lrfan Chougule, Salim Mujahid, Bashir Khan, Babloo and PW-
2 in the flat and selected the following places as targets,
namely, Air India Building, Nariman Point, Bharat Petroleum E
Refinery, Chembur, Share Market near Fountain, Zaveri Bazaar
near Mohammed Ali ~oad and Pydhonie, Five Star Hotels,
Cinema Theatres, Shiv Sena Bhavan, Shivaji Park, Dadar,
Bombay Municipal Corporation Building, V.T., Sahar Airport,
Passport Office, Worli, Mantralaya and others places. F

(m) Again, on 10.03.1993, a meeting was held at the
house of Mobina @ Bayamoosa Bhiwandiwala (A-96) where
PW-2 met Tiger Memon, Javed Chikna, Salim Rahim Shaikh
(A-52), Bashir Khan, Zakir Hussain Noor Mohammed Shaikh
(A-32), Nasir Abdul Kader Kewal @ Nasir Dakhla (A-64), G
Parvez Mohammed Parvez Zulfikar Qureshi (A-100),
Mohammed Main Faridulla Qureshi (A-43), Mohammed Iqbal
Mohammed Yusuf Shaikh (A-23), Sardar Shahwali Khan (A-54),
Bashir Ahmed Usman Gani Khairulla (A-13) and Nasim Ashraf
Shaikh Ali Barmare (A-49). In the second meeting, Tiger H

•
82 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Memon distributed Rs, 5,000/- to each one of them and again
formed the groups. PW-2 also told Tiger Memon about the
survey of Chembur Refinery. The following persons also
participated in the said meeting, namely, Yakub Abdul Razak
Memon (A-1), Essa @Anjum Abdul Razak Memon (A-3), Yusuf
B Abdul Razak Memon (A-4), Abdul Razak Su/email Memon
(dead) (A-5), Hanifa Abdul Razak Memon (A-6), Rahin Yakub
Memon (A-7), Rubeena Sulernan @ Arif Memon (A-8),
Mohammed Shoaib Mohammed Kasam Ghansar (A-9), Asgar
Yusuf Mukadam (A-10), Abdul Gani Ismail Turk (A-11), Parvez
c Nazir Ahmed Shaikh (A-12), Bashir Ahmed Usman Gani
Khairulla (A-13), Md. Farooq Mohammed Yusuf Pawale (A-16),
Mohammed Iqbal Mohammed Yusuf Shaikh (A-23), Shahnawaz
Abdul Kadar Qureshi (A-29), Zakir Hussain Noor Mohammed
Shaikh (A-32), Firoz@ Akram Amani Malik (A-39), Mohammed
Moin Faridulla Qureshi (A-43), Nasim Ashraf Shaikh Ali
0
Barmare (A-49), Sardar Shahwali Khan (A-54 ), Shaikh Ali
Shaikh Umar (A-57), Nasir Abdul Kader Kewal @ Nasir Dakhla
(A-64), Mohammed Rafiq Usman Shaikh (A-94), Mobina @
Bayamoosa Bhiwandiwala (A-96), Niyaz Mohammed@ Islam
Iqbal Ahmed Shaikh (A-98) and Parvez Mohammed Parvez
E Zulfikar Qureshi (A-100).

(n) Another meeting had taken place in the intervening night
between 11/12.03.1993 at Al-Hussaini Building, Dargah Street,
Mahim, in which a final touch to the proposed plan of serial
F bomb blasts was given. The co-conspirators stored explosives
like RDX and fire arms in the garages owned by the Memons'
and their relatives at Al-Hussaini Building and utilized these
garages and open places outside the same for making bombs
during the said night. The following persons were also present
G there at that time and had actively participated in the-work of
filling of RDX in the vehicles and suitcases for the said purpose,
namely, A-9, A-10, A-11, A-12, A-13, A-16, A-23, A-32, A-36,
A-43, A-49, A-52, A-54, A-57, A-64 and A-100.

(o) On 12.03.1993, bombs and other explosive substances
H

•
YAKUB ABDUL RAZAK MEMON v. STATE OF 83
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J ]

were planted at various places by the following persons in the A
following sequence:

Firstly, Mohammed Farooq Mohammed Yusuf Pawale (A-
16), Mohammed Tainur Phansopkar (AA) and lrfan Chougule
planted bomb and caused explosion at Bombay Stock
B
Exchange at 13:30 hrs. wherein 84 persons were killed and 218
persons were injured;

Secondly, Parvez Nazir Ahmed Shaikh (A-12) planted
bomb and caused explosion at Katha Bazaar at 14:15 hrs.
wherein 4 persons were killed and 21 persons were injured; c
Thirdly, Mohammed Usman Jan Khan (PW-2) and
Mohammed Farooq Mohammed Yusuf Pawale (A-16) planted
bomb and caused explm;ion at Lucky Petrol Pump near Shiv
Sena Bhavan wherein 4 persons were killed and 50 persons 0
were injured;

Fourthly, Abdul Gani Ismail Turk (A-11) planted bomb and
caused explosion at Century Bazaar at 14:45 hrs wherein 88
persons were killed and 160 persons were injured;
E
Fifthly, Bashir Ahmed Usman Gani Khairulla (A-13), Zakir
Hussain Noor Mohammed Shaikh (A-32), Abdul Khan @
Yakub Khan Akhtar Khan (A-36), Firoz @Akram Amani Malik
(A-39), Mohammed Main Faridulla Qureshi (A-43), Salim
Rahim Shaikh (A-52) and Ehsan Mohammed Tufel Mohammed F
Qureshi (A-122) threw hand grenades and caused explosions
at Fishermen's colony at Mahim at 14:45 hrs. wherein 3
persons were killed and 6 persons were injured;

Sixthly, Mohammed Farooq Mohammed Yusuf Pawale
(A-16), Mohammed Tainur (AA) and lrfan Chougule planted G
bomb and caused explosion at Air India Building at 15:00 hrs
wherein 20 persons were killed and 84 persons were injured;

Seventhly, Md. Shoaib Mohammed Kasam Ghansar (A-
9) planted bomb and caused explosion at Zaveri Bazaar at H
84 SUPREME COURT REPORTS [2013) 15 S.C.R.

A 15:05 hrs. wherein 17 persons were killed and 57 were injured;

Eighthly, Parvez Nazir Ahmed Shaikh (A-12) planted
bomb and caused explosion at Hotel Sea Rock at 15:10 hrs.

Ninthly, Asgar Yusuf Mukadam (A-10) and Shahnawaz
B Abdul Kadar Qureshi (A-29) planted explosives and caused
explosion at 15:13 hrs at Plaza Cinema wherein 10 persons
were killed and 37 were injured;

Tenthly, Mohammed Mustaq Moosa Tarani (A-44) planted
c bomb and caused explosion at Hotel Centaur, Juhu at 15:20
hrs. which resulted in injury to three persons.

Eleventhly, Mohammed Iqbal Mohammed Yusuf Sheikh
(A-23) and Nasim Ashraf Shaikh Ali Barmare (A-49) planted
bomb and caused explosion at Sahar Airport at 15:30 hrs and;
D
Twelfthly, Anwar Theba (AA) caused explosion at 15:40
hrs at Centaur Hotel, Airpof'i wherein 2 persons were killed and
8 persons were injured.

E In addition to the above, at various other places, viz.,
Naigan Cross Road, Dhanji Street and Sheikh Memon Street
etc., bombs were planted by accused persons which were
defused in time on the basis of information received by the
police. Thus the object behind the said conspiracy was
F achieved and commercial hub of the country, Bombay was
rocked by a series of blasts.

(p) Thereafter, a First Information Report (FIR) was lodged
and pursuant thereto several arrests were made. After the arrest
of Altaf Ali Mustaq Ali Sayed (A-67), he made a disclosure
G under Section 27 of the Evidence Act, 1872 and led Mr. Anil
Prabhakar Mahabole (PW-506), Police Officer and pancha
Suresh Jagaganath Salam (PW-37) to the residence of
Mohammed Hanif from where the following articles were
recovered and taken into possession vide Panchnama Exh.
H 109. A suit case (Article 42) was found containing 65 hand
YAKUB ABDUL RAZAK MEMON v. STATE OF 85
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]
grenades and 100 electronic detonators. In addition, one VIP A
suit case (Article 43) was found containing 40 hand grenades
and 50 electronic detonators. During the examination, only 85
grenades were found in the two suit cases which were marked
as Article 44 (1-84) and one tiand grenade which was sent to
the FSL was marked as Article 45. B

(q) Further, on 12.03.1993, one maroon coloured Maruti
van was found in abandoned condition near Siemens Factory,
Worli bearing No. MFC 1972. When the Police party came to
know about the abandoned vehicle, a search was conducted
and it was seized by the Police Officer, Dinesh P. Kadam (PW- C
371) in the presence of Narayan Datta ram More (PW-46) vide
Panchnama Exh. 190. The seizure included 7 AK-56 rifles, a
plastic bag and 14 magazines which were forwarded to the
FSL. One more plastic bag and four hand grenades were also
recovered from the Van and were sent to the FSL. The FSL D
report Exh. 2439-A establishes that these hana grenades were
capable of causing explosion. During investigation, it was found
that in the above said van, the following persons were sitting,
viz., A-57, Javed Chikna (AA), Bashir Khan and Nasir @
Babloo and were proceeding towards BMC office near V.T. for E
the purpose of killing BJP and Shiv Sena Corporators but they
left the vehicle because of the damage caused to the car during
the explosion at Century Bazaar.

(r) On 26.03.1993, the following items were recovered from
F
Khalil Ahmed Sayed Ali Nasir (A-42), namely, a single 7.62 mm
pistol without magazine (Article 87), a single 7.65 mm pistol
without magazine having body No. 352468 made in
Czechoslovakia marked as Article 88, four empty magazines,
13 cartridges, 7 cartridges of 7.65 mm pistol, 4 KF 7.65 mm
cartridges, 2 SBP 7.65 mm cartridges and 8 cartridges of 7.62 G
mm pistol.

(s) On 26.03.1993, Investigating Officer (PW-506), in the
presence of Lakshan Loka Karkare (PW-45) searched the
house of accused Mujammil Umar Kadri (A-25) at village H
86 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Mhasala, Tai. Shrivardhan and seized certain aricles vide Exh.
158, namely, 13 AK-56 rifles, 26 empty magazines and 3 gunny
bags (Article 86).

(t) During the investigation, on 27.03.1993, at the instance
of accused Ashrafur Rehman Azimulla Shaikh @ Lallu, Shivaji
B Shankar Sawant (PW-524) and Abdul Kadar A. Khan (PW
323) prepared the disclosure Panchanama Exh. 439 in the
presence of Sayyed Badshah Gaus Mohiuddin (PW-85). In
pursuance of the said disclosure Panchanama, the police
recovered hand grenades, white tubes, detonators tied together
C and live cartridges.

(u) On 02.04.1993, at the instance of Mohammed Yunus
Gulam Rasul@ Bola Miya (A-47), Eknath Dattatraya Jadhav
(PW-606), in the presence of PW-34, prepared the disclosure
o Panchnama Exh. 93. In pursuance of the same, the police
seized vide seizure Panchnama Exh. 94 dated 02.04.1993, a
single 7.62 mm assault short rifle without magazine, 30.32
empty rifle, magazines, rounds of 7.62 rifles, Goni, Rexin Bag
and 6 swords from Raziya Manzil near Ram Shyam Theatre,
E Jogeshwari, West.

(v) On 26.04.1993, at the instance of Mohd. Moin Faridulla
Qureshi (A-43), Eknath Dattatraya Jadhav (PW-606), in the
presence of Krishnanad Jacob Alwin (PW-41 ), prepared the
disclosure Panchnama Exh. 133 and in pursuance of the said
F disclosure Panchnama seized 17 hand grenades vide seizure
Panchnama Exh. 134. The said hand grenades were defused
with the help of Bomb Detection and Disposal Squad (BODS).

(w) On 14.04.1993, at the instance of Manoj Kumar
G Bhawarlal Gupta @ Munna (A-24), Ramrao Mahadev Desai
(PW-512), in the presence of Pradeep Atmaram Ire (PW-42),
prepared the disclosure Panchnama Exh. 138 and in pursuance
of the said disclosure Panchnama seized a single .45 pistol
with magazine, thirteen rounds of .45 pistol, a single 7.62 mm
H pistol with magazine, six cartridges, one .38 revolver, nineteen
YAKUB ABDUL RAZAK MEMON v. STATE OF 87
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
cartridges, one single barrel country made revolver and four A
cartridges of .315 bore.

(x) On 25.03.1993, at the instance of Parvez Nazir Ahmed
Shaikh (A-12), Anil Prabhakar Mahabole (PW-506), in the
presence of Padmakar Krishna Bhosle (PW·43)1, prepared the B
disclosure Panchnama Exh. 146 and in pursuance of the said
disclosure Panchnama seized a single revolver No. A-85525,
five cartridges and six more cartridges vide seizure
Panchnama Exh. 479. Besides the aforesaid items, one rexin
pouch, one revolver case and Arms Licence and one permit
in the name of Tiger Memon were also recovered. C

(y) On 02.04.1993, at the instance of Ayub Patel (A-72),
Eknath Dattatraya Jadhav (PW-606), in the presence of PW-
44 prepared the disclosure Panchnama Exh. 154 and in
pursuance of the said disclosure Panchnama seized 13 D
dismantled hand grenades and 3 more hand grenades vide
seizure Panchnama Exh. 155 and marked under various article
numbers.

(z) On 26.03.1993, PW-506, in the presence of Laksham E
Loka Karkare (PW"45}, searched the house of Sharif Parkar
at Sandheri, Dist. Raigad and seized two AK-56 rifles, two
empty magazines of AK-56 and one gunny bag.

(aa) On 01.04.1993, at the instance of Ibrahim Mussa
Chauhan @ Baba (A-41 ), Anil Prabhakar Mahabole (PW- F
506), in the presence of (PW-45), prepared the disclosure
Panchnama Exh. 171 and -seized a single 7.72 mm Assault
short rifle without magazine, 10 empty rifle magazines, 564
cartridges and 25 hand grenades. In addition, a blue coloured
rexin bag was also recovered. G

(ab) On 18.04.1993, at the instance of Ahmed Birya (A-
35), Uttam Khandoji Navghare (PW-545), in the presence of
Manohar Balchandra Tande! (PW-56), prepared the disclosure
Panchnama Exh. 226 and seized six rifles and 12 black H
coloured magazines.
88 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (ac) On 13. 04.1993, at the instance of Salim Rahim
Shaikh (A-52), Shivaji Tukaram Kolekar (PW-526), in the
presence of Sakharam Kishan (PW-35), prepared the
disclosure Panchnama Exh. 101 and seized one pistol of black
colour and 48 intact 7.62 mm cartridges.
8
(ad) On 04.04.1993, at the instance of Ehsan Mohammed
Tufel Mohammed Qureshi (A-122), Prakash Dhanaji
Khanvelkar (PW-513), in the presence of Rohitkumar
Ramsaran Chaurasia (PW-39), prepared the disclosure
C Panchnama Exh. 119 and seized one 7.62 mm pistol with
magazine and 14 intact and two test fired cartridges.

(ae) On 10.04.1993, at the instance of Nasim Ashraf
Shaikh Ali Barmare (A-49), Srirang Vyas Nadgauda (PW-597),
in the presence of Ranjeet Kumar Surender Nath Das (PW-38),
D prepared the disclosure Panchnama Exh. 115 and seized a five
chambered country made revolver.

(af) On 08.04.1993, at the instance of Asif Yusuf Shaikh
(A-107), Ratan Singh Kalu Rathod (PW-600), in the presence
E of Chandrakant Atmaram Vaidya (PW-40), prepared the
disclosure Panchnama Exh. 126 and seized a single 3.62 mm
pistol with magazine as well as 32 cartridges.

(ag) On 05.04.1993, at the instance of Shaikh Aziz (A-21 ),
Vijay D. Meru (PW-561 ), in the presence of Bhaskar Baburao
F Jadhav (PW-57), prepared the disclosure Panchnama Exh. 245
and seized a single .30 US Carbine, 28 cartridges and 3
magazines.

(ah) On 17.04.1993, at the instance of Ahmed Shah Durani
G (A-20), Shivaji Shankar Sawant (PW-524), in the presence of
Mohd. Ayub Mohd. Umer (PW-72), prepared the disclosure
Panchnama Exh. 378 and in pursuance of the said panchnama
seized one AK-56 rifle and two magazines.

(ai) On 09.04.1993, at the instance of Md. Dawood Mohd.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 89
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.)

Yusuf Khan (A-91), PW-522, in the presence of Ashok Kumar A
Hari Vilas Pande (PW-59), prepared the disclosure
Panchnama Exh. 265 and seized 9 empty black colour~d
magazines and 3 AK-56 guns.

(aj) On 22.03.1993, at the instance of Mohammed Shoeb B
Mohammed Kasam Ghansar (A-9), PW-615, in the presence
of Dinesh Dharma Sarvan (PW-53), prepared the disclosure
Panchnama Exh. 216 and seized one folded blacken
cardboard, one folded cardbox explosive, Packer Package Ltd.
Lahore and one Number Plate bearing No. MP-13-D-0380.
c
(ak) On 12.03.1993, after the blast, one Maruti Van
bearing No. MFC-1972 was found abandoned. During the
course of search, xerox copies of registration papers of the said
vehicle in the name of Rubi(la Suleman @ Arif Memon (A-8)
were found which led the police party to the flat Nos. 22, 25 D
and 26 of Memons' at Al Hussaini Building. As the involvement
of Memons' had come to light in the incidents, the said flats
were searched by the Police Officer, namely, Dinesh P. Kadam
(PW-371), in the presence of Uday Narayari'Vasaikar (PW-67)
and vide seizure Panchnama Exh. 337, the police party seized E
the passport of Shabana Memon, five key bunches, two keys
449, rubber slipper of right foot, brown leather chappal of right
foot, pista coloured chappal, carpet pieces, rubber slipper and
a pink piece of scrap.

(al) On 01.05.1993, at the instance of Yusuf Nullwala (A-
F
118), Suresh S. Walishetty (PW-680), in the presence of
Gangaram B. Sawant (PW-265), prepared the disclosure
Panchnama Exh. 1100 and seized one plastic bag of Metro Co.
and 57 intact bullets.
G
(am) During the investigation, the following items were
recovered from the compound of Al Hussaini Building in the
presence of Leoneison Desouza (PW-52), namely, 31 gunny
cloth pieces, 25 black cardboard pieces and 34 blacken
polythene papers. H
90 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (an) Sanjay Dutt (A-117) received three AK-56 rifles and
ammunitions from accused Abu Salem, who visited his
residence along with A-53 and A-41. After sometime, he
returned two AK-56 rifles to co-accused and kept one with him.
He also purchased one .9mm pistol from one Qyaoom, a close
8 associate of Dawood. When the news of his involvement came
to light, he telephoned A-118 to destroy the AK-56 rifle and
the pistol. During the course of investigation, A-117 made a
disclosure statement Exh. 1068 which was recorded as Exh.
1068-A. He led the police party to A-118. A-118 made a
C disclosure statement which was recorded as Exh. 1068-B and
led the police party to Kersi Adejania (A-124). A-124 made a
disclosure statement which is Exh. 1068C and from him one
iron rod and one iron spring were recovered. Thereafter, A"
124 led the police party to A-125. A-125 made a disclosure
which was recorded in Panchnama Exh. 1068D and led the
D police party to A-120 who produced one pistol which is Article
384-D which came to be recovered vide Exh. 1068E drawn
by Suresh S. Wallishetty (PW-680) in the presence of
Shashikaam R.S. (PW-211).

E (ao) On 18.04.1993, at the instance of Noor Mohammed
(A-50), Prakash Dhanaji Khanvelkar (PW-513), in the
presence of PW-33, prepared the disclosure Panchnama Exh.
88 and seized one olive green bag, one khaki bag and a
blackish lamp. During the course of investigation, Shankar
F Sadashiv Kamble (PW-503), in the presence of PW-55,
recovered one rifle from the residence of Abdul Rashid Khan
(AA) at Dreamland Co-op. Society, Marci, Bombay.

(ap) On 07.04.1993, at the instance of Faki Ali Faki
Ahmed Subedar (A-74), PW-588, in the presence of PW-88,
G recovered 12 AK-56 rifles, 36 magazines and cartridges.

(aq) At the instance of Janu Kamiya Vetkoli, PW-588, in
the presence of PW-89, recovered six military coloured bags
containing 9000 rounds and 3 wooden boxes containing 44
H magazines vide Panchnama Exhibit 503. In the Court, the said
YAKUB ABDUL RAZAK MEMON v. STATE OF 91
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]
articles were marked as below:- A

(i) 750 cartridges marked as Article No.296-B;

(ii) 6000 cartridges marked as Article No. 297-(A-i) to
(A-viii);
B
(iii) 549 cartridges marked as Article No. 297 (A-ix(b));

(iv) 750 cartridges marked as Article No. 297 (A-x(b));
and

(v) 850 cartridges marked as Article No. 294-D c
(Colly).

(ar) On 25.05.1993, PW-670 forwarded 12 AK-56 rifles,
80 magazines and 100 cartridges with forwarding letter vide
Exh. 2471 to Chemical Analyser. D
(as) At the instance of Sayeed @ Mujju Ismail Ibrahim
Kadri (A-104), PW-573, in the presence of PW-91, recovered
five plastic jars containing explosives and detonators from the
lavatory in the courtyard of the accused.
E
(at) The accused persons had undertaken firing practice
at Chinchechamal, Dist. Raigad. Nandev P. Mahajan (PW-
587), in the presence of PW-103, seized certain articles,
namely, 3 broken branches, pieces of cardboard, 3 empties,
6 lead pieces and pieces of stones. F
(au) Out of the aforesaid articles, the following articles
were sent to the FSL vide Exh. 2112 i.e., 3 empties, 6 lead
shots, 3 tree branches and pieces of target, stones, cardboard
and 12 empties recovered on 01.04.1993, 02.04.1993 and G
03.04.1993.

(av) At the instance of lssaq Mohammed Hajwani (A-79),
PW-587, in the presence of PW-104, reco'vered 13 hand
grenades and 79 empties from Sandheri Jetty. The articles
were marked in the Court as per the details given below: H
92 SUPREME COURT REPORTS [2013] 15 S.C.R.

A
(i) 12 empties Article 307(v) colly

(ii) 67 empties Article 308-B colly

(iii) One hand grenade Article 309-A (i)
B
(iv) White, yellow and green explosive powder and a cap
which was removed from the hand grenade.

(v) PW-598 defused the hand grenades at Goregaon P.S.
and issued the Defusal Certificate. The carbon copy of the
C Defusal Certificate is marked as Exh. 2055.

(vi) 12 defused hand grenades Article 310-B colly

(vii) On 21.06.1993, Shashinath Raghunath Chavan (PW-
D 676) sent a letter Exh. 2517 to the FSL along with 67 empties
for opinion.

(viii) CA Report dated 05.08.1993 vide M.L. case No. BL
643/93, 447/93, 385/93 and 568/93 through MA No. 382/2000
dated 17.10.2000.
E
(aw) During the course of investigation, Shashikant Eknath
Shinde (PW-519), in the presence of Dilip Manekrao
Dawalekar (PW-65), recovered 57 gunny bags filled with ROX
and gelatine from the Nangla Creek on 02.04.1993. Out of
F 57 bags, 37 were found to be loaded with ROX and the
remaining 20 bags to be loaded with gelatine. A-50, A-24, A-
59, A-69 and A-121 having admitted dumping of the said bags
in the Nangla Creek in their confessional statements.

(ax) Thereafter, 27 criminal cases were registered in
G relation to the said incidents at various police stations in
Bombay City, District Thane and District Raigarh. Upon
completion of the investigation, a single charge sheet was filed
against 189 accused persons including 44 absconding
accused persons on 04.11.1993. Subsequently, further
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 93
MAHARASHTRA, THR. CBI , BOM9AY [P. SATHASIVAM, J.]

investigation of the case was transferred to the Respondent- A
CBI who filed 19 supplementary charge sheets under Section
173(8) of the Code of Criminal Procedure, 1973 (in short 'the
Code') and the trial of 123 accused persons was concluded
on 23.11.2003.
B
3. In order to enquire into the matter and render speedy
justice, a Special Judge (TADA) was nominated and recording
of evidence started in 1995 and the said process was
concluded in the year 2002. Total 687 witnesses were
examined and the Special Court pronounced the judgment on
12.09.2006/27.07.2007 awarding death sentence to 11
c
persons and life sentence and other sentences for the offences
under TADA, the Indian Penal Code, 1860 (in short 'IPC') Arms
Act, 1959 and the Explosives Act, 1884. By way of· impugned
judgment, the trial Court has convicted 100 persons and
acquitted 23 persons of all the charges. The judgment under D
consideration pertains to the trial of 123 accused persons
involved in the said blasts. In cases of death sentence, the
Special Judge referred the matter to this Court for confirmation.
In fo~I,51 appeals have been filed by the accused against their
conv· lion ranging from various sentences upto life E
impriso ment. Against the order of acquittal, the State of
Mahrashlra through CBI has filed 48 appeals.
'
Yakub Abdul Razak Memon (A-1)
F
4. At the first instance, let us consider the charges,
materials placed by the prosecution, defence and details
regarding conviction and sentence insofar as A-1 is concerned.

Charges:
G
The following charges were framed against A-1, namely:

" ..... During the period from December, 1992 to April, 1993
at various places in Bombay, District Raigad and District
Thane in India and outside India in Dubai (U.A.E.)
H
94 SUPREME COURT REPORTS [2013) 15 S.C.R.

A Pakistan, entered into a criminal conspiracy and/or were
members of the said criminal conspiracy whose object
was to commit terrorist acts in India and that you all agreed
to commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
B established, to strike terror in the people, to alienate
sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and
Muslims by using bombs, dynamites, handgrenades and
other explosive substances like ROX or inflammable
c substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or
persons, loss of or damage to and disruption of supplies
of services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed
0
to smuggle fire-arms, ammunitions, detonators,
handgrenades and high explosives like ROX into India
and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
acts and for the said purpose to conceal and store all
E these arms, ammunitions and explosives at such safe
places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose
off the same as need arises. To organize training camps
F in Pakistan and in India to import and undergo weapons
training in handling of arms, ammunitions and explosives
to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, ·abet and knowingly
facilitate the terrorist acts and/or any act preparatory to the
G commission of terrorist acts and to render any assistance
financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary for achieving the
aforesaid objectives of the criminal conspiracy and that on
H 12.03.1993 were successful in causing bomb explosions
YAKUB ABDUL RAZAK MEMON v. STATE OF 95
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
at Stock Exchange Building, Air India Building, Hotel Sea A
Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza
Theatre and in lobbing handgrenades at Macchimar Hindu
Colony, Mahim and at Bay-52, Sahar International Airport B
which left more than 257 persons dead, 713 injured and
property worth about Rs.27 crores destroyed, and
attempted to cause bomb explosions at Naigaum Cross
Road and Dhanji Street, all in the city of Bombay and its
suburbs i.e. within Greater Bombay. And thereby c
committed offences punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120-B of IPC read with
Section 3(2)(i)(ii), 3(3)(4), 5 and 6 of TADA (P) Act, 1987
and read with Sections 302, 307, 326, 324, 427, 435,
436, 201 and 212 of Indian Penal Code and offences D
under Sections 3 and 7 read with Sections 25 (1-A), (1-
B)(a) of the Arms Act, 1959, Sections 9B (1)(a)(b)(c) of
the Explosives Act, 1884, Sections 3, 4(a)(b), 5 and 6 of
the Explosive Substances Act, 1908 and Section 4 of the
Prevention of Damage to Public Property Act, 1984 and
within my cognizance." E

In addition to the abovesaid principal charge of conspiracy,
the appellant was also charged on the following counts:

At head secondly, for commission of the offence under F
Section 3(3) of TADA Act, for in pursuance to the
conspiracy in India, Dubai and Pakistan, during the period
between December, 1992 and April, 1993, having
conspired advocated, abetted, advised and knowingly
facilitated the commission of terrorist acts and acts
G
preparatory to terrorist acts i.e. serial bomb blast in
Bombay and its suburbs on 12.03.1993 by:

(i) arranging finance and managing the disbursement
by generating the same through Mulchand Shah
H
...

96 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Choksi (A-97) and from the firm Mis Tejarat
International owned by Ayub Memon (AA) for
achieving the objective of conspiracy to commit the
terrorist act;

(ii) arranging air tickets through Altaf Ali Mushtaq Ali
B
Sayyed (A-67). East West Travels and others to
enable the co-conspirators and accused in the case
to undergo weapons training in Pakistan and for
having made arrangement for their lodging and
boarding;
c
(iii) purchasing motor vehicles for the purpose of
preparing them for'being used as bombs and for
planting them at important locations in furtherance
of objective of conspiracy to commit terrorist act;
D and

(iv) requesting the discharged Amjad Ali Meharbux and
A-67 to store suitcases containing arms and
ammunitions, handgrenades which were part of
consignment smuggled into India by the absconding
E
accused Tiger Memon and other co-conspirators.

At head thirdly, for commission of the offence under
Section 5 of TADA Act, on the count of unauthorisedly,
within the notified area of Greater Bombay, from
F 03.02.1993 onwards, by being in possession of hand
grenades, detonators which were the part of the
consignment of arms, ammunitions and explosives
smuggled into the country by Tiger Memon and his
associates for committing the terrorist acts.
G
At head fourthly, for commission of the offence under
Section 6 of TADA Act, on the count of unauthorisedly,
within the area of Greater Bombay, with an intent to aid
terrorists, from 03.02.1993 onwards, being in possession
of handgrenades, detonators which were the part of the
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 97
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

consignment of arms, ammunitions and explosives A
smuggled into the country by Tiger Memon and his
associates for committing the terrorist act and thereby
having contravened the provisions of the Arms Act, 1959,
the Explosives Act, 1884, the Explosive Substances Act,
1908 and the Explosives Rules, 2008 by keeping the same B
in his possession and by transporting and distributing the
• same to different persons.

At head fifthly, for commission of the offences under
Sections 3 & 4 read with Section 6 of the Explosive
Substances Act on the count of, from 03.02.1993 onwards,
c
providing premises, having procured, concealed, aided
and abe.tted Tiger Memon and his associates for
smuggling arms, ammunitions and explosives into the
country for commission of terrorist act and also by having
in his possession and control explosive substances like D
handgrenades and detonators with an intent, and by
means thereof, to endanger the lives and for causing
serious damage to property in India and to enable his co-
conspirators to do such acts."
E
5. The appellant (A-1) has been convicted and sentenced
for the above said charges as follows:-

(i) The appellant-A 1 has been convicted and sentenced to
death under Section 3(3) of TADA and Section 120-B of IPC
F
read with the offences mentioned in the said charge. In
addition, the appellant was ordered to pay a fine of Rs. 25, 000/
-. (charge firstly)

(ii) The appellant (A-1) was sentenced to RI for life alongwith
a fine of Rs. 1,00,000/-, in default, to further undergo RI for 2 G
years under Section 3(3) of TADA. (charge secondly)

(iii) The appellant was sentenced to RI for 10 years
alongwith a fine of Rs. 1,00,000/-, in default, to further undergo
RI for 2 years under Section 5 of TADA (charge thirdly)
H
98 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (iv) The appellant was sentenced to RI for 14 years
alongwith a fine of Rs. 1,00,000/-, in default, to further undergo
RI for 2 years under Section 6 of TADA. (charge fourthly)

(v) The appellant was sentenced to RI for 10 years with a
fine of Rs. 50,000/-, in default, to further undergo RI for 1 year
8
under Sections 3 and 4 read with Section 6 of the Explosive
Substances Act, 1908. (charge fifthly).

6. Heard Mr. Jaspal Singh, learned senior counsel for the
appellant and Mr. Gopal Subramanium, learned senior counsel
C duly assisted by Mr. Mukul Gupta, learned senior counsel and
Mr. Satyakam, learned counsel for the respondent-CBI.

0
Contentions raised by A-1:

7. Mr. Jaspal Singh, learned senior counsel, after taking
us through the charges framed against A-1, prosecution
-
witnesses, documents and all other materials raised the
following contentions:-

(i) The impugned judgment is not a "judgment" in terms of
E Sections 353, 354, 362 and 363 of the Code since reasons
for conviction and sentence were not provided to the appellant
(A-1) along with the order of conviction and sentence dated
12.09.2006 and 27.07.2007 respectively. Inasmuch as only
'operative portion' was read out and after hearing the accused
F the conviction arid sentence was imposed, it is not permissible
in law. He further pointed out that as per the "operative portion",
A-1 was convicted and sentenced to death, RI along with fine
for commission of offences mentioned in charges at head firstly
to fifthly. In the absence of the entire judgment in terms of the
G above mentioned provisions, the conviction and sentence
imposed on A-1 cannot be sustained.

(ii) The prosecution mainly relied on the evidence of
Mohammed Usman Jan Khan (PW-2), who turned approver.
According to learned senior counsel, there is no provision for
H pardoning an accused and permitting him to become an
YAKUB ABDUL RAZAK MEMON v. STATE OF 99
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

approver under TADA He further pointed out that neither under A
TADA nor under the Code it can be said that PW-2 has been
validly pardoned. In any event, according to him, his statement
needs to be corroborated and conviction based on his sole
testimony cannot be sustained.
B
(iii) The Special Judge heavily relied on the confessional
statements of A-10, A-11, A-46, A-67 and A-97. Among them,
except A-97 others have retracted their statements. Since the
prosecution case rests entirely upon the confessional
statements of those accused persons, in view of their retraction
statements, the conviction and sentence cannot be sustained.
c
(iv) Several recoveries were made by the prosecution on
the statement of Md. Hanif (PW-282) and in the absence of
strict adherence to the procedure, those recoveries are
inadmissible in evidence. He further pointed out that seizure D
panchnamas were not in accordance with the procedure and,
more particularly, Section 27 of the Indian Evidence Act, 1872.

(v) All the confessional statements are exculpatory and not
inculpatory. In view of the same, the entire statements made
E
are not acceptable.

(vi) There is no material to prove that there was a
conspiracy among the accused persons pursuant to the
demolition of Babri Masjid.
F
(vii) In any event, the prosecution failed to pin point the
specific role of A-1. A-1 had no knowledge of the conspiracy
and of the ultimate bomb blasts on 12.03.1993. Even, the
confessional statements cannot be used against A-1 since the
same were recorded before the amendment of Section 3(5) of G
TADA. Considering the entire evidence against him, the
prosecution failed to point out any specific role, accordingly, the
death sentence is not warranted and other sentences are also
liable to be set aside.
H
100 SUPREME COURT REPORTS [2013) 15 S.C.R.

A Reply by CBI:

8. Mr. Gopal Subramanium, learned senior counsel for the
CBI duly assisted by Mr. Mukul Gupta, learned senior counsel
and Mr. Satyakam, learned counsel met all the points raised
by Mr. Jaspal Singh. He pointed out the following evidence
8
against the appellant (A 1), namely;

(i) confessional statements made by co-accused;

(ii) testimonies of prosecution witnesses; and
c (iii) documentary evidence.

According to him, it is incorrect to state that conviction was
based solely on the evidence of Approver (PW-2). He pointed
out that the prosecution has placed enough materials to
D substantiate "conspiracy" and the ultimate role played by
each one of the accused persons, particularly A-1, in the
commission of offence. He further pointed out that all the
confessions made by the accused, namely, A-10, A-11, A-46,
A-67 and A-97 are admissible, and on the other hand, their
E alleged retractions cannot be accepted. He further pointed out
that apart from the confession of those accused, the prosecution
has established several incriminating materials connecting all
the accused in the commission of offence. He pointed out
various recoveries made against the accused which clearly
F show the seriousness of the matter. Among all the accused
persons, A-1, brother of Tiger Memon, was in-charge of entire
financial management, sending persons to Pakistan via Dubai
for training in arms and ammunitions, securing air-tickets and
travel documents such as passports, visas etc. He further
G pointed out that there was no flaw in the procedure adopted
by the Special Court in delivering the judgment. There is no
merit in the appeal filed by A-1 and prayed for confirmation of
death sentence.

9. We have carefully considered the entire materials, oral
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 101
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
and documentary evidence and the submissions made by A
either side.

Validity of impugned judgment by the Special Court

10. Among various points raised, since the argument
relating to impugned judgment is paramount, we intend to take B
up the said issue at the foremost. Mr. Jaspal Singh, learned
senior counsel for A-1, took us through the impugned judgment
which contains two parts. According to him, in the absence of
. whole judgment for perusal of the accused, the sentence
imposed cannot be sustained. In support of the above claim, C
he relied on Sections 353, 354, 362 and 363 of the Code. He
further pointed out that only 'operative portion' was read out
and after hearing the accused, conviction and sentence was
imposed. As per the operative portion, A-1 was convicted
under Sections 3(3), 5 and 6 of TADA read with Section 120- D
B IPC and Sections 3, 4 and 6 of the Explosive Substances
Act, 1984. He further pointed out that after convicting and
sentencing A-1, the Presiding Officer stated that the reasons
will be given within two months which shows that, admittedly,
the judgment was not ready on the date of the pronouncement. E

11. In view of the above, it is desirable to go through the
relevant provisions of TADA. The TADA contains: (a) judgment;
and (b) orders, admittedly, it is not defined anywhere that what
is meant by judgment/order. It is the claim of the learned senior
counsel for the appellant that if it is not a complete judgment, F
accused cannot be convicted and sentenced. In the absence
of specific provision in TADA with regard to the same, we have
to look into the relevant provisions of the Code. Chapter XXVll
of the Code speaks about 'Judgment'. The relevant provisions
are Sections 353, 354, 362 and 363 which are as under: G

"353. Judgment.-(1 ). The judgment in every trial in any
Criminal Court of original jurisdiction shall be pronounced
in open court by the presiding officer immediately after the
H
102 SUPREME COURT REPORTS [2013] 15 S.C.R.

A termination of the trial or at some subsequent time of which
notice shall be given to the parties or their pleaders.

(a) By delivering the whole of the judgment; or

(b) By reading out the whole of the judgment; or
B
(c) By reading out the operative part of the judgment and
explaining the substance of the judgment in a language,
which is understood by the accused or his pleader.

(2) Where the judgment is delivered under clause (a) of
c sub-section (1 ), the presiding officer shall cause it to be
taken down in short hand, sign the transcript and every
page thereof as soon as it is made ready, and write on it
the date of the delivery of the judgment in open Court.

D (3) Where the judgment or the operative part thereof is
read out under clause (b) or clause (c) of sub-section (1 ),
as the case may be, it shall be dated and signed by the
presiding officer in open court and if it is not written with
his own hand, every page of the judgment shall be signed
E by him.

(4) Where the judgment is pronounced in the manner
specified in clause (c) of sub-section (1), the whole
judgment or a copy thereof shall be immediately made
available for the perusal of the parties or their pleaders free
F
of cost.

(5) If the accused is in custody, he shall be brought up to
hear the judgment pronounced.

G (6) If the accused is not in custody, he shall be required
by the court to attend to hear the judgment pronounced,
except where his personal attendance during the trial has
been dispensed with and the sentence is one of fine only
or he is acquitted:
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 103
MAHARASHTRA, THR. CBI , BOMBAY[P. SATHASIVAM, J]
Provided that, where there are more accused than one, and A
one or more of them do not attend the court on the dale
on which the judgment is to be pronounced, the presiding
officer may, in order to avoid undue delay in the disposal
of the case, pronounce the judgment notwithstanding their
absence. B

(7) No judgment delivered by any Criminal Court shall be
deemed to be invalid by reason only of the absence of any
party or his pleader on the day or from the place notified
for the delivery thereof, or of any omission to serve, or
defect in serving, on the parties or their pleaders, or any C
of them, the notice of such day and place.

(8) Nothing in this section shall be construed to limit in any
way the extent of the provisions of section 465.
D
354. Language and contents of judgment.-(1) Except
as otherwise expressly provided by this Code, every
judgment referred to in section 353, -

(a) Shall be written in the language of the court;
E
(b) Shall contain the point or points for determination, the
decision thereon and the reasons for the decision;

(c) Shall specify the offence (if any) of which, and the
section of the Indian Penal Code (45 of 1860) or other law
F
under which, the accused is convicted and the punishment
to which he is sentenced;

(d) If it be a judgment of acquittal, shall state the offence
of which the accused is acquitted and direct that he be set
at liberty. G

(2) When the conviction is under the Indian Penal Code
(45 of 1860) and it is doubtful under which of two sections,
or under which of two parts of the same section, of that
H
104 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Code the offence falls, the court shall distinctly express the
same, and pass judgment in the alternative.

(3) When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
B
the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence.

(4) When the conviction is for an offence punishable with
imprisonment for a term of one year of more, but the court
c imposes a sentence of imprisonment for a term of less than
three months, it shall record its reasons for awarding such
sentence, unless the sentence is one of imprisonment till
the rising of the court or unless the case was tried
summarily under the provisions of this Code.
D
(5) When any person is sentenced to death, the sentence
shall direct that he be hanged by the neck till he is dead.

(6) Every order under section 117 or sub-section (2) of
section 138 and every final order made under section 125,
E section 145 or section 147 shall contain the point or points
for determination, the decision thereon and the reasons for
the decision.

362. Court not to alter judgment-Save as otherwise
F provided by this Code or by any other law for the time
being in force, no court, when it has signed its judgment
or final order disposing of a case, shall after or review the
same except to correct a clerical or arithmetical error.

363. Copy of judgment to be given to the accused
G and other persons.-(1) When the accused is sentenced
to imprisonment, a copy of the judgment shall, immediately
after the pronouncement of the judgment, be given to him
free of cost.

H (2) On the application of the accused, a certified copy of
YAKUB ABDUL RAZAK MEMON v. STATE OF 105
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J ]

the judgment, or when he so desires, a translation in his A
own language if practicable or in the language of the court,
shall be given to him without delay, and such copy shall,
in every case where the judgment is appeal able by the
accused be given free of cost:
B
Provided that where a sentence of death is passed or
confirmed by the High Court, a certified copy of the
judgment shall be immediately given to the accused free
of cost whether or not he applies for the same.

(3) The provisions of sub-section (2) shall apply in relation C
to an order under section 117 as they apply in relation to
a judgment, which is appealable by the accused.

(4) When the accused is sentenced to death by any court
and an appeal lies from such judgment as of right, the court D
shall inform him of the period within which, if he wishes to
appeal, his appeal should be preferred.

(5) Save as otherwise provided in sub-Section (2), any
person affected by a judgment or order passed by a
Criminal Court shall, on an application made in this behalf E
and on payment of the prescribed charges, be given a
copy of such judgment or order of any deposition or other
part of the record:

Provided that the Court may, if it thinks fit for some special F
reason, give it to him free of cost.

(6) The High Court may, by rules, provide for the grant of
copies of any judgment or order of a Criminal Court to any
person who is not affected by a judgment or order, on
payment, by such person, of such fees, and subject to such G
conditions, as the High Court may, by such rules provide."

12. By drawing our attention to, Section 353(1 )(a)(b)(c), it
is contended by learned senior c9unsel for the appellant that it
is incumbent on the part of the trial Judge to provide the whole H
106 SUPREME COURT REPORTS [2013] 15 S.C.R.

A judgment. In the absence of reasoning and the discussion in
the form of full judgment, it is contended that the conviction and
sentence under various provisions are not permissible. He also
pointed out that in case of death sentence, special reasons
have to be assigned. According to Mr. Jaspal Singh, in terms
B of Section 353 of the Code, the judgment means the whole
judgment signed by the judge. He elaborated that when the
Code permits the Court to hear the accused on sentence, he
must be provided with the whole judgment including the
reasons. According to him, though A-1 was awarded death
c sentence, no special reasons were assigned by the Designated
Court and he was not even furnished the whole judgment. By
highlighting various aspects on the issue, in view of the fact that
the judgment pronounced is not a "full judgment" in terms of the
above said provisions, Mr. Jaspal Singh prayed for remand to
the Special Court to go through all the reasoning and hear
0
afresh on the question of sentence. Though Mr. Gopal
Subramanium met all the submissions relating to the alleged
defect in the impugned judgment, first let us consider the
decisions relied on by Mr. Jaspal Singh in support of the above
proposition.
E
13. In Shambhu & Ors. VS. The State AIR 1956 All. 633,
learned single Judge of the High Court with regard to the words
"judgment" and "order" has held as under:-

F "4. The argument sounds plausible; nevertheless I have no
hesitation in holding it to be untenable. A study of the
provisions of the Code of Criminal Procedure discloses
that the expression of the opinion of the criminal Court on
any matter at issue arrived at after due consideration of
the evidence and of the arguments (if any) falls into two
G
categories : judgments and orders. None-theless neither
of these terms has been defined either in the Code of
Criminal Procedure or the Indian Penal Code.

There is, however, no controversy as to what a "judgment"
H is. As held by the Federal Court in Hori Ram Singh v.
YAKUB ABDUL RAZAK MEMON v. STATE OF 107
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J]

Emperor AIR 1939 PC 43 (A) and Kuppuswami Rao v. A
The King, it is used "to indicate the termination of the case
by an order of conviction or acquittal of the accused", and
to this, by virtue of Section 367(6), Criminal P. C. must be
added orders under Sections 118 or 123 (3), orders which
bear the character of a conviction. Chapter 26 of the Code B
deals exclusively with judgments and on the basis of its
exhaustive provisions there can be no difficulty in
recognising a criminal Court's "judgment"."

14. In Ba/deo. vs. Oeo Narain and Ors. AIR 1954 All. 104,
there was discussion about how the judgment to be in terms c
of the provisions of the Code. The relevant para is as under:

"14 ...... Under Section 367, Criminal P. C. every judgment
must contain:
D
(1) the points for determination;

(2) the decision thereon; and

(3) the reasons for such decision.
E
Where the reasons given by the trial Court are such as
cannot be supported by the evidence on record, they are
not reasons for the decision, out reasons against the
decision. To constitute a legal appreciation of evidence,
the Judgment should be such as to indicate that the Court
has applied its mind to it. Every portion of the Judgment F
of the trial Court seems to indicate non-application of mind
by the Court to the evidence on record. The third
requirement laid down in Section 367, Criminal P. C. viz.,
the reasons for the decision, is an important ingredient of
a Judgment. Compliance with law in this regard should not G
be merely formal but substantial and real, for it is this part
of the judgment alone which enables the higher Court to
appreciate the correctness of the decision, the parties to
feel that the Court has fully and impartially considered their
H
108 SUPREME COURT REPORTS [2013] 15 S.C.R.

A respective cases and the public to realise that. a genuine
and sincere attempt has been made to mete out even-
handed Justice. It is in the way the Court discharges its
duty in this regard that it is able to instil confidence in its
justice and to inspire that respect and reverence in public
B mind which is its due. Reasons form the substratum of the
decision and their factual accuracy is a guarantee that the
Court has applied its mind to the evidence in the case.
Where the statement of reasons turn out to be a mere
hollow pretension of a baseless claim of application of
mind by the Court, the Judgment is robbed of one of its
c most essential ingredients and forfeits its claim to be
termed a Judgment in the eye of law."

15. In Surendra Singh & Ors. vs. State of Uttar Pradesh
AIR 1954 SC 194, this Court has interpreted the word
D "judgment". The following conclusion is relevant which reads as
under:-

"10. In our opinion, a judgment within the meaning of these
sections is the final decision of the court intimated to the
parties and to the world at large by formal "pronouncement"
E
or "delivery" in open court. It is a judicial act which must
be performed in a judicial way. Small irregularities in the
manner of pronouncement or the mode of delivery do not
matter but the substance of the thing must be there : that
can neither be blurred nor left to inference and conjecture
F
nor can it be vague. All the rest - the manner in which it is
to be recorded, the way in which it is to be authenticated,
the signing and the sealing, all the rules designed to secure
certainty about its content and matter - can be cured; but
not the hard core, namely the formal intimation of the
G decision and its contents formally declared in a judicial way
in open court. The exact way in which this is done does
not matter. In some courts the judgment is delivered orally
or read out, in some only the operative portion is
pronounced, in some the judgment is merely signed after
H giving notice to the parties and laying the draft on the table
YAKUB ABDUL RAZAK MEMON v. STATE OF 109
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
for a given number of days for inspection. A

11. An important point therefore arises. It is evident that
the decision which is so pronounced or intimated must be
a declaration of the mind of the court as it is at the time of
pronouncement. We lay on stress on the mode of manner 8
of delivery, as that is not of the essence, except to say that
it must be done in a judicial way in open court. But however
it is done it must be an expression of the mind of the court
at the time of delivery. We say this because that is the first
judicial act touching the judgment which the court performs C
after the hearing. Everything else up till then is done out of
court and is not intended to be the operative act which sets
all the consequences which follow on the judgment in
motion. Judges may, and often do, discuss the matter
among themselves and reach a tentative conclusion. That
is not their judgment. They may write and exchange drafts. D
Those are not the judgments either, however heavily and
often they may have been signed. The final operative act
is that which is formally declared in open court with the
intention of making it the operative decision of the court.
That is what constitutes the "judgment". E

14. As soon as the judgment is delivered, that becomes
the operative pronouncement of the court. The law then
provides for the manner in which it is to be authenticated
and made certain. The rules regarding this differ but they F
do not form the essence of the matter and if there is
irregularity in carrying them out it is curable. Thus, if a
judgment happens not to be signed and is inadvertently
acted on and executed, the proceedings consequent on it
would be valid because of the judgment, if it can be shown G
to have been validly delivered, would stand good despite
defects in the mode of its subsequent authentication."

16. In Ratia Mohan. vs. The State of Gujarat AIR 1969
Guj. 320, the following para is pressed into service:-
H
110 SUPREME COURT REPORTS [2013) 15 S.C.R.

A "9. In this connection, I was referred to a decision In re.
Athipalayan, AIR 1960 Mad 507, where it was held that the
irregularity even in pronouncing the judgment in open Court
and signing and dating the same would amount to an
"illegality vitiating the conviction and sentence passed in the
B case. While saying so, it has been observed thus:-

" ....... it is one of the glorious principles of our criminal
jurisprudence that we do not try or sentence people in
absentia and we do not also convict and sentence people
without judgments being pronounced in open court and
c signed and dated then and there. It may be different in the
continental system of criminal jurisprudence."

It was a case in which a sentence was announced before
judgment, which was the final decision of the court
D intimated to the parties and the world ;;it large by formal
pronouncement of delivery in open court by the trial judge
and signing and dating it simultaneo_usly and thereby
terminating the criminal proceedings finally. In Nathusing
Vridhasing v. Vasantlal B. Shah. 8 Guj LR 496: (AIR 1968
E Guj 210), the question arose whether the order of dismissal
of a complaint under Section 203 of the Criminal
Procedure Code without recording any reasons amounts
to an irregularity or illegality curable under Section 537 of
the Criminal Procedure Code and it was held that the order
F was one in contravention of that provision and such a
breach of the provision renders the order void and
ineffective. It was not curable under Section 537 of the
Criminal Procedure Code. Some observations made by
the Supreme Court in Willie (William) Slaney v. State of
Madhya Pradesh, AIR 1956 SC 116, were quoted to say
G
that "the complainant is entitled to know why his complaint
has been dismissed with a view to consider an approach
to a revisional Court. Being kept in ignorance of the
reasons clearly prejudices his right to move the revisional
Court and where he takes a matter to the revisional Court
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 111
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
renders his task before that Court difficult, particularly in A
view of the limited scope of the provisions of Sections 438
and 439, Code of Criminal Procedure." Those
observations may well apply in the present case
particularly when the accused has a right of appeal
against the order of conviction and sentence passed in B
the case and he would obviously be at a disadvantage to
assail the reasons which were in the mind of the learned
Magistrate and which came out so late as on 6-2-68. The
accused-appellant had a right to know the reasons which
led the learned Magistrate to come to that conclusion. It C
may well happen that after coming to know about the
accused going in appeal, the learned Magistrate may try
to record a proper judgment which otherwise he may later
on do in some other manner. In any event, the learned
Magistrate has clearly contravened the imperative
0
provisions contained in Section 264 of the Criminal
Procedure Code by passing the sentence without
recording the judgment in the case and has that way acted
illegally. Such an illegality cannot be treated as an
irregularity contemplated under Section 537 or an
omission as urged by Mr. Nanavati so as to become E
curable one. Even if it were to be treated as such as
coming within the ambit of Section 537, it can easily be
said that it had occasioned failure of justice in the
circumstances of the case. In any view of the matter, the
order is, therefore, liable to be set aside." F

17. The other decision relied on is State of Orissa vs.
Ram Chander Agarwa/a & Ors. (1979) 2 SCC 305. We have
gone through the factual position and the ratio laid down
therein. Inasmuch as ii is only a general observation, the same G
is not helpful to the case on hand.

18. Another decision relied on is Jhari Lal vs. Emperor
AIR 1930 Pat. 148. While considering Sections 367 and 369
of the Code, the Court held that pronouncing sentence before
H
112 SUPREME COURT REPORTS [2013] 15 S.C.R.

A completing the judgment, that is to say, before preparing the
essential part of it, such as the statement of points for
determination and the reasons for decision makes the sentence
illegal and vitiates conviction.

B 19. In State of Punjab and Ors. vs. Jagdev Singh Talwandi
(1984) 1 sec 596 while considering how the final order/
judgment is to be pronounced, this Court pointed out as under:-

"30. We would like to take this opportunity to point out that
serious difficulties arise on account of the practice
c increasingly adopted by the High Courts, of pronouncing
the final order without a reasoned judgment. It is desirable
that the final order which the High Court intends to pass
should not be announced until a reasoned judgment is
ready for pronouncement. Suppose, for example, that a
D final order without a reasoned judgment is announced by
the High Court that a house shall be demolished, or that
the custody of a child shall be handed over to one parent
as against the order, or that a person accused of a serious
charge is acquitted, or that a statute is unconstitutional or,
E as in the instant case, that a detenu be released from
detention. If the object of passing such orders is to ensure
speedy compliance with them, that object is more often
defeated by the aggrieved party filing a special leave
petition in this Court against the order passed by the High
F Court. That places this Court in a predicament because,
without the benefit of the reasoning of the High Court, it is
difficult for this Court to allow the bare order to be
implemented. The result inevitably is that the operation of
the order passed by the High Court has to be stayed
G pending delivery of the reasoned judgment."

20. The next decision relied on is Krishna Swami vs.
Union of India and Ors., AIR 1993 SC 1407, which is a
Constitution Bench decision. We have gone through the factual
position and the ratio laid down therein. According to us, the
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 113
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

said decision is neither helpful nor applicable to the case on A
hand.

21. The other decision relied on by Mr. Jaspal Singh is
reported in K. V. Rami Reddi. vs. Prema (2009) 17 SCC 308
which arose out of a civil proceeding. It is not in dispute that B
Section 2(9) of the Civil Procedure Code, 1908 defines
"judgment". Order XX Rule 1(1 )(2) of the Civil Procedure Code
(Madras amendment) refers "judgment when pronounced" and
"judgment to be signed". In para 9, this Court has held as under:

"9. Order XX Rule 5 on which great emphasis was laid C
by learned counsel for the appellant says that in suits in
which issues have been framed, the court shall state its
finding or decision with .the reason therefore, upon each
separate issue, unless the finding upon any one or more
of the issues is sufficient for the decision of the suit." D

In the light of the definition clause, namely, "judgment"
though the same has not been explained in the Code, the
procedure to be followed both in the civil and criminal cases
are all acceptable. E
22. By pointing out that when the judgment does not
contain the material case of the prosecution, defence and
discussion on conclusion, according to learned senior counsel,
it not only vitiates the principles of natural justice but also
infringes the right under Article 21 of the Constitution. He heavily F
relied on a Constitution Bench decision of this Court reported
in Sarojini Ramaswami (Mrs.) vs. Union of India & Ors. (1992)
4 SCC 506. In para 141, the Constitution Bench has held as
under:-
G
"141 ..... It is now settled law that the principles of natural
justice are an integral part of constitutional scheme of just
and fair procedure envisaged under Article 14 of the
Constitution."

23. In M. Nagaraj & Ors. vs. Union of India and Ors. H
114 SUPREME COURT REPORTS (2013] 15 S.C.R.

A (2006) 8 SCC 212 which is also a decision of the Constitution
Bench, the following conclusion is pressed into service.

"20 ..... Article 21 of the Constitution provides that no
person shall be deprived of his life and personal liberty
except according to procedure established by law. The
B
Supreme Court by a majority held that "procedure
established by law" means any procedure established by
law made by Parliament or the legislatures of the State.
The Supreme Court refused to infuse the procedure with
principles of natural justice. It concentrated solely upon the
c existence of enacted law. After three decades, the
Supreme Court overruled its previous decision in A.K.
Gopalan and held in its landmark judgment in Maneka
Gandhi v. Union of India that the procedure contemplated
by Article 21 must answer the test of reasonableness. The
D Court further held that the procedure should also be in
conformity with the principles of natural justice. This
example is given to demonstrate an instance of expansive
interpretation of a fundamental right. The expression "life"
in Article 21 does not connote merely physical or animal
E existence. The right to life includes right to live with human
dignity. This Court has in numerous cases deduced
fundamental features which are not specifically mentioned
in Part Ill on the principle that certain unarticulated rights
are implicit in the enumerated guarantees. For example,
F freedom of information has been held to be implicit in the
guarantee of freedom of speech and expression. In India,
till recently, there was no legislation securing freedom of
information. However, this Court by a liberal interpretation
deduced the right to know and right to access information
G on the reasoning that the concept of an open Government
is the direct result from the right to know which is implicit
in the right of free speech and expression guaranteed
under Article 19(1 )(a)."

24. In Confederation of ex-Servicemen Associations and
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 115
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
Others vs. Union of India and Ors. (2006) 8 SCC 399 which A
is also a Constitution Bench judgment, this Court held as
under:-

"61. It cannot be gainsaid that the right to life
guaranteed under Article 21 of the Constitution embraces
B
within its sweep not only physical existence but the quality
of life. If any statutory provision runs counter to such a right,
it must be held unconstitutional and ultra vires Part Ill of the
Constitution .... "

25. Now, let us consider the decisions relied on by Mr. C
Gopal Subramanium, learned senior counsel for the CBI with
regard to the contentions raised. In Iqbal Ismail Sodawala vs.
The State of Maharashtra and Others (1975) 3 SCC 140, this
Court considered almost similar question. It was argued before
the Bench that the allegation of the petitioner therein that the D
judgment in the case under Sections 392 and 397 of IPC
against the petitioner was not pronounced by learned Sessions
Judge but by his Sheristedar. It was urged that the procedure
adopted in this respect by learned Sessions Judge was not in
accordance with law. This submission was not acceptable to E
the Bench. The following observation and conclusion are
relevant:

"6 ... The report of Shri Gupte shows that he dictated
the judgment in the case against the petitioner in open
court. The judgment included, as it must, the concluding F
part relating to the conviction and sentence awarded to the
petitioner. The petitioner who apparently did not know
English was thereafter apprised by the Sheristedar of the
Court of the concluding part of the judgment relating to his
conviction and sentence. Although normally the trial Judges G
should themselves convey the result of the trial to the
accused, the fact that the learned Judge in the present
case did not do so and left it to the Sheristedar would not
introduce an infirmity in the procedure adopted by him. The
Sheristedar in the very nature of things must have translated H
116 SUPREME COURT REPORTS (2013] 15 S.C.R.

A to the petitioner what was contained in the concluding part
of the judgment. It was, in our opinion, the dictation of the
concluding part of the judgment in open court by the
learned Sessions Judge which should in the circumstances
be taken to be tantamount to the pronouncement of the
B judgment.

8. Question then arises as to whether the appellant
can be said to be not properly imprisoned if the trial Judge
had merely dictated the judgment but not signed it because
of its not having been transcribed at the time he
c pronounced it. So far as this aspect is concerned, we find
that Section 537 of the Code of Criminal Procedure
provides, inter alia, that subject to the other provisions of
the Code, no finding, sentence or order passed by a Court
of competent jurisdiction shall be reversed or altered on
D appeal or revision on account of any error, omission or
irregularity in the complaint, summons, warrant,
proclamation order, judgment or other proceedings before
or during trial or in any enquiry or other proceedings under
this Code, unless such error, omission, irregularity has in
E fact occasioned a failure of justice. This section is
designed to ensure that no order of a competent court
should in the absence of failure of justice be reversed or
altered in appeal or revision on account of a procedural
irregularity. The Code of Criminal Procedure is essentially
F a code of procedure and like all procedural law, is
designed to further the ends of justice and not to frustrate
them by the introduction of endless technicalities. At the
same time it has to be borne in mind that it is procedure
that spells much of the difference between rule of law and
G rule by whim and caprice. The object of the Code is to
ensure for the accused a full and fair trial in accordance
with the principles of natural justice. If there be substantial
compliance with the requirements of law, a mere
procedural irregularity would not vitiate the trial unless the
same results in miscarriage of justice. In all procedural
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 117
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

laws certain things are vital. Disregard of the provisions A
in respect of them would prove fatal to the trial and would
invalidate the conviction. There are, however, other
requirements which are not so vital. Non-compliance with
them would amount to an irregularity which would be
curable unless it has resulted in a failure of justice." B

26. The next decision relied on by learned senior counsel
for CBI is reported in Rama Narang vs. Ramesh Narang and
Ors. (1995) 2 SCC 513 wherein it was held that judgment
becomes complete and appealable only after conviction is C
recorded and also sentence is awarded.

27. In view of the above discussion, it is useful to refer the
relevant provision of"the Code with regard to right ofhearing.

Right of hearing under Section 235(2) of the Code D
Right of hearing to the accused on the question of sentence is
provided under Section 235(2) of the ·Code and this provision
was introduced in view of the 48th Report of the Law
Commission of India. Section 235(2) of the Code reads as
under: E

"If the accused is convicted, the Judge shall, unless he
proceeds in accordance with the provisions of Section 360
hear the accused on the question of sentence, and then
pass sentence on him according to law." F
The purpose of adding the provision is recognition of new
trend in penology and awarding of sentence taking into
consideration various factors such as the prior criminal record
of the offender, his age, employment, educational background,
G
sociological backdrop, family background, financial position,
antecedents, social adjustment, emotional and mental condition
and the prospects of his returning to normal path in conformity
with law. It is in fact humanist principle of individualising
punishment to suit the person and his circumstances and,
therefore, a hearing is required before imposition of penalty. H
118 SUPREME COURT REPORTS [2013] 15 S.C.R.

A In order to understand the concept more clearly, it is useful to
refer some of the decisions of this Court directly on the point
in issue.

28. In Santa Singh vs. The State of Punjab, (1976) 4 SCC
B 190, this Court observed:

"The provisions of Section 235(2) are very salutary and
contain one of the cardinal features of natural justice,
namely, that the accused must be given an opportunity to
make a representation against the sentence proposed to
C be imposed on him."

"7. Non-compliance with the requirement of Section 235(2)
cannot be described as mere irregularity in the course of
the trial curable under Section 465. It is much more
D serious. It amounts to by-passing an important stage of the
trial and omitting it altogether, so that the trial cannot be
aid to be that contemplated in the Code. It is a different
kind of trial conducted in a manner different from that
prescribed by the Code. This deviation constitutes
disobedience to an express provision of the Code as to
E
the mode of trial, and as pointed out by the Judicial
Committee of the Privy Council in Subramania Iyer v. King
Emperor (1901) 28 I.A. 257 such a deviation cannot be
regarded as a me're irregularity. It goes to the root of the
matters and the resulting illegality is of such a character
F
that it vitiates the sentence. (Vide Pulukurti Kotayya v. King
Emperor (1947) 74 I.A. 65 and Magga and Anr. v. State
of Rajasthan 1953 Cri.L.J. 892). Secondly, when no
opportunity has been given to the appellant to produce
material and make submissions in regard to the sentence
G to be imposed on him, failure of justice must be regarded
as implicit. Section 465 cannot, in the circumstances, have
any application in a case like the present".

"11 .... This obviously postulates that the accused must be
H given an opportunity of making his representation only
YAKUBABDUL RAZAK MEMON v. STATE OF 119
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J.]
regarding the question of sentence and for this purpose A
he may be allowed to place such materials as he may
think fit but which may have bearing only on the question
of sentence. The statute seeks to achieve a socio-
economic purpose and is aimed at attaining the ideal
principle of proper sentencing in a rational and progressive B
society. The modern concept of punishment and penology
has undergone a vital transformation and the criminal is
now not looked upon as a grave menace to the society
which should be got rid of but as a diseased person
suffering from mental malady or psychological frustration c
due to subconscious reactions and is, therefore, to be
cured and corrected rather than to be killed or destroyed.
There may be a number of circumstances of which the
Court may not be aware and which may be taken into
consideration by the Court while awarding the sentence, D
particularly a sentence of death, as in the instant case. It
will be difficult to lay down any hard and fast rule, but the
statement of objects and reasons of the 1973 Code itself
gives a clear illustration. It refers to an instance where the
accused is the sole bread-earner of the family. In such a
E
case if the sentence of death is passed and executed it
amounts not only to a physical effacement of the criminal
but also a complete socio-economic destruction of the
family which he leaves behind. Similarly there may be
cases, where, after the offence and during the trial, the
accused may have developed some virulent disease or F
some mental infirmity, which may be an important factor
to be taken into consideration while passing the sentence
of death. It was for these reasons that Section 235(2) of
the 1973 Code was enshrined in the Code for the purpose
of making the Court aware of these circumstances so that G
even if the highest penalty of death is passed on the
accused he does not have a grievance that he was not
heard on his personal, social and domestic circumstances
before the sentence was given."
H
120 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 29. In Ram Deo Chauhan@ Raj Nath Chauhan vs. State
of Assam, AIR 2001 SC 2231, this Court examined the issue
at length and held:

"4 ..... The requirement contained in Section 235(2) of the
Code (the obligation of the Judge to hear the accused on
B
the question of sentence) is intended to achieve a purpose.
The said legislative provision is meant for affording benefit
to the convicted person in the matter of sentence. But when
the Sessions judge does not propose to award death
penalty to a person convicted of the offence under Section
c 302 IPC what is the benefit to be secured by hearing the
accused on the question of sentence. However much it is
argued the Sessions Judge cannot award a sentence less
than imprisonment for life for the said offence. If a Sessions
Judge who convicts the accused under Section 302 IPC
D (with or without the aid of other sections) does not propose
to award death penalty, we feel that the Court need not
waste time on hearing the accused on the question of
sentence. We therefore choose to use this occasion for
reiterating the legal position regarding the necessity to
E afford opportunity for hearing to the accused on the
question of sentence is as follows:-

(1) When the conviction is under Section 302 IPC (with or
without the aid of Section 34 or 149 or 1208 of IPC) if the
F Sessions Judge does not propose to impose death
penalty on the convicted person it is unnecessary to
proceed to hear the accused on the question of sentence.
Section 235(2) of the Code will not be violated if the
sentence of life imprisonment (SIC) awarded for that
offence without hearing the accused on the question of
G
sentence.

(2) In all other cases the accused must be given sufficient
opportunity of hearing on the question of sentence.

H (3) The normal rule is that after pronouncing the verdict of
YAKUBABDUL RAZAK MEMON v. STATE OF 121
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]
guilty the hearing should be made on the same day and A
the sentence shall also be pronounced on the same day.

(4) In cases where the Judge feels or if the accused
demands more time for hearing on the question of
sentence (especially when the Judge propose to impose B
death penalty) the proviso to Section 309(2) is not a bar
for affording such time.

(5) For any reason the court is inclined to adjourn the case
after pronouncing the verdict of guilty in grave offences the
convicted person shall be committed to jail till the verdict C
on the sentence is pronounced. Further detention will
depend upon the process of law."

30. In case, such an opportunity of hearing is not provided,
the Appellate Court must remand the case to the trial court on D
a limited issue for re-trial on the question of sentence. (Vide:
Narpal Singh & Ors. vs. State of Haryna, AIR 1977 SC 1066).
However, in exceptional circumstances, where remand is likely
to cause delay, it is open to remedy the prejudice by giving a
hearing to the accused on the question of sentence by the E
Appellate Court. (Vide: Dagdu & Ors. etc. vs. State of
Maharashtra, AIR 1977 SC 1579; Tarlok Singh vs. State of
Punjab, AIR 1977 SC 1747; and Kama/akar Nandram
Bhavsar & Ors. vs. State of Maharashtra, AIR 2004 SC 503).
In case, at the time of trial, there was no objection for not
F
providing sufficient time to the accused or in respect of small
fraction of the mandatory provision of Section 235(2) of the
Code, he cannot be allowed to raise the plea of prejudice of
such non-compliance at Appellate stage. (Vide: Motilal vs.
State of M.P. (Now Chhatisgarh), (2004) 2 SCC 469).
G
31. Thus, in view of the above, it is evident that generally
judgment must be complete and it must have points for
determination, decision thereon and reasons for such a
decision. The basic requirement for such ingredients appears
H
122 SUPREME COURT REPORTS [2013] 15 S.C.R.

A to be that the superior court (appellate/revisional) may be able
to examine as to whether the judgment under challenge has
been rendered in accordance with law and particularly, based
on evidence on record. So, the purpose of recording reasons
is to facilitate the superior court to examine the correctness of
B the judgment of the courts below. So far as the grievance of
the accused/convict that opportunity of hearing was not given
by the court below and, thus, he failed to address the court
appropriately on the issue of sentence, may not have any
substance for the reason that the legislative policy discernible
c under Section 235(2) read with Section 354(3) is that quantum
of punishment is to be determined on considerations and
circumstances not merely connected with a particular crime but
a court is bound to give due consideration to the other
circumstances also of the criminal. It is for this reason that court
D while hearing a convict on sentence is required to give a party
an opportunity of producing evidence or materials relating to
the various factors having some bearing on the question of
sentence. The court, while determining the quantum of sentence,
acts in an altogether different domain in which facts and factors
which operate are of an entirely different order than those which
E come into play on the question of conviction. Therefore, there
is bifurcation of trial as an accused has a right of pre-conviction
hearing under Section 234 and secondly right of pre-sentence
hearing under Section 235 of the Code. For pre-conviction
hearing, the accused must be well informed as to what the exact
F prosecution case is and what evidence have been adduced by
the prosecution to prove its case. It is for the prosecution to
prove its case beyond reasonable doubt, as in case the pivot
of the prosecution is not accepted, a new prosecution case
cannot be made to imperil the defence. The prosecution as well
G as the convict has a right to adduce evidence to show
aggravating grounds to impose severe punishment or
mitigating circumstances to impose a lesser sentence. More
so, appeal is a continuity of trial.

32. In Akhtari Bi (Smt.) vs. State of M.P, AIR 2001 SC
H
YAKUBABDUL RAZAK MEMON v. STATE OF 123
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

1528, this Court explained the nature of appeal observing as A
under:-

"Appeal being a statutory right, the trial court's verdict does
not attain finality during pendency of the appeal and for that
purpose his trial is deemed to be continuing despite B
conviction".

33. Needless to say that Appellate court has a right of
rehearing, re-appreciating the evidence and in exceptional
circumstances even to permit a party to adduce additional
evidence. Therefore, in a case where there has been some c
irregularity in delivering the judgment, it can be cured at the
appellate stage.

34. As against the above mentioned decisions, it is also
useful to refer the following decisions which are directly on the D
point in issue.

35. Judgment indicates the termination of the case by an
order of conviction or acquittal of the accused and judgment is
to be rendered in strict adherence to the provisions of Chapter
XXVll of the Code. (Vide: Hori Ram Singh vs. Emperor AIR E
1939 PC 43; and Kuppuswami Rao vs. The King, AIR 1949
PC 1)

36. In view of the provisions of Section 354 of the Code,
it is necessary that every judgment must contain: F

(1) the points for determination;

(2) the decision thereon; and

(3) th~ reasons for such decision. G
Where the reasons given by the trial Court are such· as
cannot be supported by the evidence on record, they are not
reasons for the decision. To constitute a legal appreciation of
evidence, the judgment should be such as to indicate that the
H
124 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Court has applied its mind to it. Every portion of the judgment
must indicate application of mind by the Court to the evidence
on record. The reason for the decision is an important
ingredient of a judgment. Compliance with the law in this regard
should not be merely formal but substantial and real, for it is
B this part of the judgment alone which enables the higher Court
to appreciate the correctness of the decision, the parties to feel
that the Court has fully and impartially considered their
respective cases and the public to realise that a genuine and
sincere attempt has been made to mete out even-handed
c justice. Reasons form the substratum of the decision and their
factual accuracy is a guarantee that the Court has applied its
mind to the evidence in the case. Where the statement of
reasons turned out to be a mere hollow pretension of a
baseless claim of application of mind by the Court, the
judgment is robbed of one of its most essential ingredients and
0
forfeits its claim to be termed as judgment in the eyes of law.

37. In Bachan Singh vs. State of Punjab, AIR 1980 SC
898, this Court observed:

E "151 ... .. Accordingly, sub-section (3) of Section 354 of the
Cr.P. C. provides:

"When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall
F state the reasons for the sentence awarded, and, in
the case of sentence of death, the special reasons for
such sentence."

"152. In the context, we may also notice Section 235(2) of
G the Code of 1973, because it makes not only explicit, what
according to the decision in Jagmohan Singh vs. State
of UP AIR 1973 SC 947 was implicit in the scheme of
the Code .. but also bifurcates the trial by providing for two
hearings, one at the pre-conviction stage and another at
H the pre-sentence stage .... "
YAKUBABDUL RAZAK MEMON v. STATE OF 125
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J.]

..... By enacting Section 235(2) of the new Code, A
Parliament has accepted that recommendation of the Law
Commission. Although sub-section (2) of Section 235
does not contain a specific provision as to evidence and
provides only for hearing of the accused as to sentence,
yet it is implicit in this provision thatif a request is made B
in that behalf by either the prosecution or the accused, or
by both, the Judge should give the party or parties
concerned an opportunity of producing evidence or
material relating to the various factors bearing on the
question of sentence. c
In this view, we are in accord with the dictum laid down in
Ba/want. Singh vs. State of Punjab AIR 1976 SC 230, wherein
the interpretation of Section 354(3) first came up for
consideration.
D
"4 ..... Under this provision the court is required to state the
reasons for the sentence awarded and in the case of
sentence of death, special reasons are required to be
stated. It would thus be noticed that awarding of the
sentence other than the sentence of death is the general E
rule now and only special reasons, that is to say, special
facts and circumstances in a given case, will warrant the
passing of the death sentence. It is unnecessary nor is it
possible to make a catalogue of the special reasons which
may justify the passing of the death sentence in a case ..... " F
The present legislative policy discernible from Section
235(2) read with Section-354(3) is that in fixing the degree of
punishment or making the choice of sentence for various
offences, including one under Section 302 of IPC, the court
should not confine its consideration "principally" or merely to G
the circumstances connected with the particular crime, but also
give due consideration to the circumstances of the criminal.

38. In Allauddin Mian & Ors. Sharif Mian & Anr. vs. State
of Bihar, AIR 1989 SC 1456, this Court observed: H
126 SUPREME COURT REPORTS (2013] 15 S.C.R.

A "10 ..... The said provision therefore satisfies a dual
purpose; it satisfies the rule of natural justice by according
to the accused an opportunity of being heard on the
question of sentence and at the same time helps the court
to choose the sentence to be awarded. Since the provision
B is intended to give the accused an opportunity to place
before the court all the relevant material having a bearing
on the question of sentence there can be no doubt that the
provision is salutary and must be strictly followed. It is
clearly mandatory and should not be treated as a mere
c formality ..... "

39. In Muniappan vs. State of T.N., AIR 1981 SC 1220,
this Court held that the obligation to hear the accused on the
question of sentence which is imposed by Section 235(2) of
the Code is not discharged by putting a formal question to the
D accused_as to what he has to say on the question of sentence.
The Judge must make a genuine effort to elicit from the
accused all information which will eventually have a
bearing on the question of sentence. All admissible
evidence is before the Judge but that evidence itself often
E furnishes a clue to the genesis of the crime and the motivation
of the criminal. It is the bounden duty of a Judge to cast aside
the formalities of the court scene and approach the question
of sentence from a broad, sociological point of view. The
occasion to apply the provisions of Section 235(2) arises
F only after .the conviction is recorded. What then remains is
the question of sentence in which not merely the accused but
the whole society .has a stake. The court, while on the
question of sentence, is in an altogether different domain
in which facts and factors which operate are of an entirely
G different order than those which come into play on the
question of conviction.

40. In Rameshbhai Chandubhai Rathod vs. State of
Gujarat, (2009) 5 SCC 740, this Court observed that in a case
where the court imposes the death sentence both the aforesaid
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 127
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

provisions, namely, Section 235(2) and Section 354(3) of the A
Code assume signal significance. The constitutional validity of
Section 354(3) was upheld in Bachan Singh (supra) as learned
Judges have said that the legislative policy in sentencing is
discernable from those two sections. In a judgment, both those
two sections supplement each other and in a case where death B
penalty is imposed, both the sections must be harmoniously
and conjointly appreciated and read.

41. Section 235(2), as interpreted by this Court in Bachan
Singh (supra), provides for a "bifurcated trial". It gives the C
accused (i) a right of pre-sentence hearing, on which he can
(ii) bring on record material or evidence which may not be (iii)
strictly relevant to or connected with the particular crime but (iv)
may have a bearing on the choice of sentence. Therefore, it
has to be a regular hearing like a trial and not a mere empty
formality or an exercise in an idle ritual. Even without referring D
to Bachan Singh (supra) in Muniappan (supra), a two-Judge
Bench of this Court, emphasised the importance of hearing the
accused on the question of sentence under Section 235(2) of
the Code and came to the conclusion that the question of
hearing the accused on sentence was not to be discharged E
without putting formal questions to the accused. This Court, in
Malkiat Singh & Ors. vs. State of Punjab (1991) 4 SCC 341,
while explaining the provisions under Section 235(2) of the
Code, held as under.
F
"18 .... Hearing contemplated is not confined merely to oral
hearing but also intended to afford an opportunity to the
prosecution as well as the accused to place before the court
facts and material relating to various factors on the question of
sentence, and if interel'ted by either side, to have evidence G
adduced to show mitigating circumstances to impose a lesser
sentence or aggravating grounds to impose death penalty.
Therefore, sufficient time must be given to the accused or the
prosecution on the question of sentence, to show the grounds
on which the prosecution may plead or the accused may show
that the maximum sentence of death may be the appropriate H
128 SUPREME COURT REPORTS [2013] 15 S.C.R.

A sentence or the minimum sentence of life imprisonment may
be awarded, as the case may be ..... "

Therefore, fairness, justice and reasonableness which
constitute the essence of guarantee of life and liberty
B epitomised in Article 21 of the Constitution also pervades the
sentencing policy in Sections 235(2) and 354(3) of the Code.
Those two provisions virtually assimilate the concept of
"procedure established by law" within the meaning of Article 21
of the Constitution. Thus, a strict compliance with those
C provisions in the way it was interpreted in Bachan Singh (supra)
having regard to the development of constitutional law by this
Court is a must before imposing death sentence.

42. It is clear that "judgment" is a formal intimation of the
decision and its contents formally declare in a judicial way in
D open court. In other words, it is a declaration of the mind of the
Court at the time of pronouncement. It is also clear that passing
sentence without recording the judgment would amount to
illegality. Pronouncing sentence before completing the
judgment, that is, before preparing the essential part makes the
E sentence illegal and vitiates the conviction.

43. We have already adverted to the fact that the word
"judgment" has not been defined in IPC, and even in TADA.
However, the Code, particularly, Sections 353, 354, 362 and
F 363 make it clear that how the judgment is to be in a criminal
trial, language and contents and the procedure to be followed
in furnishing copy of the judgment immediately after
pronouncement. It is also clear that the ultimate decision,
namely, the judgment, shall be pronounced in the open court
after the termination of the trial. Section 353(1) of the Code
G makes it clear that it is incumbent on the part of the Presiding
Officer to deliver the whole of the judgment or by reading out
the operative part of the judgment and explaining the substance
of the judgment in a language which is understood by the
accused or his pleader. We have already referred to the fact
H that the blasts occurred on 12.03.1993. Initially, the charge
YAKUBABDUL RAZAK MEMON v. STATE OF 129
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

sheet was filed by the State of Maharasthra on 04.11.1993 A
relating to 189 persons. Thereafter, CBI was asked to
investigate further on 19.11.1993 and filed 19 supplementary
charge sheets. Finally, on 10.04.1995, order framing charges
was passed. Thereafter, recording of evidence began on
30.06.1995 by examining the first prosecution witness. B
Recording of the evidence continued till 18.10.2000. Thereafter,
the arguments commenced from 09.08.2001 which continued
up to 20.09.2003. After having voluminous record of evidence
both oral and documentary, the Designated Court reserved for
order on 23.11.2003 and the same position continued up till c
12.09.2006. It is relevant to point out that in total 123 persons
were tried as accused, out of which, 23 persons were acquitted
of all the charges and the balance accused were convicted and
sentenced under various charges. The records produced show
that on 12.09.2006, the Designated Court started reading the D
conclusion. On that day, the Court passed the following order
in respect of A-1.

"For the reasons separately recorded the conclusion being
reached of:
E
A-1 Yakub Abdul Razak Memon being found guilty
for offences for which charge at head firstly is framed
against him and for offence under Section 3(3) of TADA
Act for which charge at head secondly is framed against
him and for offence under Section 5 of TADA for which F
charge at head thirdly is framed against him and for
offence under Section 6 of TADA for which charge at head
fourthly is framed against him and for offence punishable
under Sections 3 and 4 read with Section 6 of the
Explosive Act for which charge at head fifthly is framed
G
against him. "

Since at this moment, we are concentrating only on A-1,
we are not extracting the conclusion- reached in respect of other
accused. After recording the above conclusion, the Designated
Court has also recorded the following statements: H
130 SUPREME COURT REPORTS [2013] 15 S.C.R.

A "The said accused were apprised regarding offences for
which they were found to be guilty.

In view of court having reached to such findings A-3, 4, A-
8 who are on bail are taken into custody of this court and
B their bail bonds stand cancelled.

For recording statement of accused who are found guilty
about their say regarding quantum of sentence to be
imposed, the matter stands posted tomorrow."

c 44. On 27.07.2007, the Designated Court again read the
following conclusion in respect of A-1.

"82 a) Accused no. 1 Yakub Abdul Razak Memon out of
remaining 5 accused at trial: is found guilty for the offence
of conspiracy for commission of such acts as found proved
D
from charge firstly framed at trial and punishable under
Section 3(3) of TADA Act, 1987 and Section 120-B of IPC
read with offences mentioned in said charge and on said
count said accused is hereby cpnvicted and sentenced to
suffer punishment of death and for the said purpose is
E ordered to be hanged by the neck till he is dead but subject
to confirmation of same by Hon'ble Apex Court about said
part of sentence and is also ordered to pay a fine of Rs.
25, 0001- (Twenty Five Thousand.)

F (b) is also found guilty for offence punishable under Section
3(3) of TADA Act, 1987 for commission of such acts as
found proved from charge at head secondly framed
against him and on said count said accused is hereby
convicted and sentenced to suffer RI for life and is ordered
G to pay a fine of Rs. 1,00,000/- (One Lakh only) and in
default of payment of fine is ordered to suffer further RI for
a period of 2(two) years.

(c) is also found guilty for offence punishable under Section
5 of TADA for commission of such acts as found proved
H from charge at head thirdly framed against him and on said
YAKUBABDUL RAZAK MEMON v. STATE OF 131
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

counts said accused is hereby convicted and sentenced A
to suffer RI for 10 (ten) years and is ordered to pay a fine
of Rs. 1,00,000/- (One Lakh only) and in default of
payment of fine is ordered to suffer further RI for a period
of 2 (two) years.
B
(d) is also found guilty for offence punishable under Section
6 of TADA for commission of such acts as found proved
from charge at head fourthly framed against him and on
said count said accused is hereby convicted and
sentenced to suffer RI for 14 (fourteen) years and is
ordered to pay a fine of Rs. 1,00,000/- (One Lakh only) and C
in default of payment of fine is ordered to suffer further RI
for a period of 2 (two) years.

(e) is also found guilty for offence punishable under
Sections 3 and 4 read with Section 6 of the Explosives 0
Act for commission of such acts as found proved from
charge at head fifthly framed against him and on said count
said accused is hereby convicted and sentenced to suffer
RI for 10 (ten) years and is ordered to pay a fine of Rs.
50,0001- (Fifty thousand only) and in default of payment of E
fine is ordered to suffer further RI for a period of 1 (one)
year.

(f) however, aforesaid accused being found not guilty of
all ot~er offences for which said accused was charged at
trial vide charges framed at Exh. 4 said accused is F
acquitted for all said offences.

(g) accused entitled for set off in accordance with law for
period for which he was in custody.
G
(h) the substantive sentence awarded to A-1 to run
concurrently.

(i) A-1 is apprised of sentence awarded to him. The said
accused is again apprised that sentence of Death
awarded to him is subject to confirmation of same by H
132 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Hon'ble Apex Court and for said purpose court would be
making necessary reference to Apex Court within 30 days
from the day of completion of passing of final order.

U) The said accused is further apprised that it will take
some time to complete pronouncement of final order of
B
conviction and sentence of remaining accused in this case
and thus complete the judgment by getting same
transcribed, corrected and signed. The said accused is
apprised that a copy of judgment and order will be supplied
to him free of cost after the same is completed and
c corrected in all respect and for said purpose the said
accused will be ordered to be produced before Registrar
of this Court on 26th September 2007 for supplying such
copy subject to same being by then ready.

D (k) the court Sheristedar to handover operative part of
order passed today to A-1.

(I) Registrar to send A-1, A-3,

A-4 and A-8 to Arthur Road Prison along with appropriate
E warrant.

27.07.2007
-Sd/-
(P.D. Kade)
F Presiding Officer
of the Designated Court
(Under TADA (P) Act, 1987)
For Bomb Blast Cases,
Greater Bombay"
G 45. On perusal of the conclusion with regard to A-1, it is
very much clear that he was apprised regarding the offences
for which he was found to be guilty. While A-1 was awarded
death sentence, it is clear from the conclusion that he was
apprised that sentence of death awarded to him is subject to
H
YAKUBABDUL RAZAK MEMON v. STATE OF 133
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

the confirmation by the Apex Court and he was also informed A
that for the said purpose the Court would be making necessary
reference to Apex Court within 30 days from the date of
completion of passing of final order. In the same order, the
Court has also apprised A-1 that it will take some time to
complete the pronouncement of the final order of conviction and B
sentence of remaining accused and completed the judgment
by getting the same transcribed, corrected and signed. The
court also directed the Sheristedar to handover the 'operative
part' of the order passed on both these days, i.e., 12.09.2006
and 27.07.2007. In view of the above, it is useful to refer the c
following decisions on the point.

46. In Rama Narang vs. Ramesh Narang & Ors, (1995)
2 sec 513, it was held as under:

"12 ....... the trial, therefore, comes to an end only after D
the sentence is awarded to the convicted person."

(emphasis supplied)

"13 ....... Thus a judgment is not complete unless the
punishment to which the accused person is sentenced is E
set out therein."

(emphasis supplied)

The Court further held in para 15:
F
"15 ..... Under the provisions of the Code to which we have
already referred there are two stages in a criminal trial
before a Sessions Court, the stage upto the recording of
a convicton and the stage post-conviction upto the
imposition of sentence. A judgment becomes complete G
after both these stages are covered .... "

(emphasis supplied)

47. In Lakdey Ashok vs. Government of A.P., (2009) 6
H
134 SUPREME COURT REPORTS [2013] 15 S.C.R.

A ALT 677 (in Paras 12, 13 and 15) it was hel<;l by the Andhra
Pradesh High Court thatthe 'judgment', as contemplated under
Section 353 is complete only after the order on sentence is
pronounced. The High Court held that:

"It will thus be seen that under the Code after the conviction is
8
recorded, Section 235(2) inter alia provides that a judge shall
hear the accused on the question of sentence and then pass
sentence on him according to law. The trial, therefore, comes
to an end only after the sentence is awarded to the convicted
C person. It will thus be seen from above provisions that after the
court records a conviction, the accused has to be heard on the
question of sentence and it is only after the sentence is
awarded that the judgment becomes complete and can be
appealed against under Section 373 of the CrPC. Under the
provisions of the Code to which we have already referred there
D are two stages in a criminal trial before the sessions court, the
stage up to recording of a conviction and the stage post-
conviction up to the imposition of sentence. A judgment
becomes complete after both these stages are covered."

E

(emphasis supplied)

It is clear that a conviction order is not a "judgment" as
F contemplated under Section 353 and that a judgment is
pronounced only after the award of sentence. In the case on
hand, the Designated Judge pronounced the operative part of
the judgment on 27.07.2007 and explained the substance of
the judgment to the appellant in compliance with the
G requirements of Section 353(1 )(c) of the Code. A perusal of
the final judgment of the Designated Court shows that the
Designated Judge has dealt with the issue of pronouncing the
judgment under Section 353(1 )(c) in detail. In para 5 of Part
46 of the final judgment, the Designated Judge explained the
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 135
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J]

reasons for pronouncing the judgment under Section 353(1 )(c) A
of the Code as follows:-

"5. In the premises aforesaid but in light of 1) events which
had occurred in past at trial, 2) keeping in mind attitude
and conduct of accused as disclosed during course of trial, B
3) mammoth subject matter involved at trial i.e.
charges framed thereon running into 512 with many
of them containing in all 192 sub charges, 4) delicacy
and sensitivity of subject matter involved at trial due to
numerous incidents involved and communal conflict said
to be involved, 5) impact likely to be caused at/even
c
after commencing process of judgment within and
even outside court precincts, 6) impact likely to be
caused at/after declaration of final order, 7) point of
security and safety of concerns attending during course of
proceeding within or even outside precincts of court and D
point of law and order within the City/State/Nation, 8) large
number of 123 accused about whom judgment was
to be declared, 9) necessity of smoothly completing
process of judgement by taking due care to prevenUavoid
occurring of any event causing disturbance, interruptions E
etc. during same vitiating decorum of court, it was proper
to deliver judgement only in accordance with
provision of Sec. 353(1) (c) of Cr.P.C. rather than
adopting any other prescribed mode for delivery of
judgement. Needless to add that following the other F
method was bound to result trend of judgement being
known to accused prior to delivery of same and thus giving
all the chance to unscrupulous accused on bail to flee away
and such accused in custody to create confusion/or indulge
in activities, disrupting ongoing work and thereby defeating G
the process of law. For the same reason it was also felt
necessary to keep judgement computerized and contents
thereof protected by putting password rather than taking
print out of the same."
H
136 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (emphasis supplied)

48. Since we have completely analyzed the method follwed
by the Designated Judge, we are satisfied that the
requirements of pronouncing a judgment under Section
B 353(1 )(c) of the Code have been fully complied with. The above
approach makes it clear that while pronouncing the operative
part of the judgment, the Designated Court ensured that the
substance of the judgment has been explained to the appellant
in compliance with the requirement of Section 353. It is also
relevant to point out that the said order dated 27.07.2007 was
C pronounced in open court and signed and dated by the
Designated Judge in compliance with the requirements of the
said section.

49. Regarding the requirement of providing a copy of the
D judgment immediately as required by the provisions of Section
363, the Designated Judge in para 61 of Part 46 of the final
judgment has dealt with the same as follows:-

"Having regard to the same, the word used "immediately"
in sub-sec. 363 (1) of Cr.P.C. will be required to be
E
interpreted in context of subject matter involved in each of
the case. In short in a case involving such huge subject
matter furnishing of such copy after reasonable time after
completion of passing of final order would never be said
to be an act offending provisions of law or defeating right
F of accused."

50. We have already pointed out that this was a joint trial
of 123 accused persons. It is also brought to our notice that
the copy of the final judgment was provided free of cost to the
G appellant after the pronouncement of the orders with respect
to each of the accused by the Designated Judge. Further, as
is evident from para U) of the order dated 27.07.2007, the
appellant was apprised of the fact that a copy of the final
judgment would be provided after completion of the order as
H regards sentence in respect of the remaining accused.
YAKUBABDUL RAZAK MEMON v. STATE OF 137
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J ]

51. As pointed out earlier, the trial at the Designated Court A
involved 123 accused and findings were recorded for 512
charges and accordingly, the process of pronouncing sentence
in respect of each accused and apprising the accused of the
same could not have been completed in a day. Thus, the
process of pronouncement of judgment had to be carried out B
for all accused since it was a joint trial and accordingly a copy
of the final judgment could be provided to each of the accused
only after the sentence was pronounced in respect of all the
accused persons. The judgment also shows that detailed
hearings on sentencing effectively commenced after all the c
conviction orders were pronounced and counsel for the
appellant/appellants made detailed submissions on it. It is
evident from para 351 onwards of Part 46 of the final judgment
that detailed submissions were made by the counsel by pointing
out mitigating factors that were considered by the Designated D
Judge while sentencing the appellant and other accused at the
trial. It is also cle·ar from the judgment that detailed submissions
were made by the appellant (A-1) during the pre-sentence
hearing and these submissions were considered and,
accordingly, reasons have been recorded by the Designated
E
Judge in Part 46 of the final judgment in compliance with the
requirement of Section 235(2) and Section 353 of the Code. It
is also relevant to mention that Section 354 makes it clear that
'judgment' shall contain the punishment awarded to the
accused. It is therefore, complete only after sentence is
determined. F

52. Section 354(1)(c) states that every judgment referred
to in Section 353 "shall specify the offence of which, and the
section of the Indian Penal Code (45 of 1860), or other law
under which, the accused is convicted and the punishment io G
which he is sentenced. In view of the same, the judgment under
Section 353(1 }(c) is to be pronounced only after the sentence
in a case where conviction is determined. The process of
delivery of judgment includes the determination of guilt, or
otherwise, of an accused and in the event of such guilt being H
138 SUPREME COURT REPORTS [2013] 15 S.C.R.

A established, also includes the process of sentencing the
accused.

53. In our case, it was pointed out that the judgment was
reserved on 23.11.2003. Till 2006, the Court proceeded to
formulate its reasons and make judicial determination of guilt
8
or otherwise in respect of each accused. The process of
delivery of judgment commenced on 12.09.2006 when the Court
pronounced its verdict on the guilt or otherwise of specific
accused. Whilst doing so, the Designated Judge explained the
offences for which the accused were being convicted and
C invited the accused persons to make their statements with
reference to the quantum of sentence. It is evident that at this
stage, the detailed reasoning may not have been finally
communicated to the accused, but the determination of the
Court as well as the broad understanding of the operative part
D of the judgment was communicated. In case there is an
objection on the part of the accused regarding not knowing the
reasons for his conviction, it contextually means that he had not
been made aware as to the specific pieces of evidence or
marshalling of facts which led to his conviction.
E
54. In view of the same, there is no illegality or irregularity
in the process followed and specifically under Sections 353,
354 and 235 keeping in mind the magnitude of the task before
the Designated Judge inasmuch as he was trying 123 accused
F persons and had to deliver a judgment which runs in about
4,300 pages. In view of the above, we hold that the
pronouncement of the judgment was in compliance with the
above said provisions of the Code and does not violate any of
the provisions of the Code as contended by the appellant.

G 55. It is also clear from the reasoning of the Designated
Court that by adopting the same procedure, the Designated
Judge conveyed the conclusion with regard to various charges
leveled against other accused (convicted total accused 100)
and also apprised each one of them including A-1 the
H reasoning and other materials for arriving at such a conclusion
YAKUB ABDUL RAZAK MEMON v. STATE OF 139
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

as well as their pleaders. He also apprised that because the A
convicted accused are 100 in number and the common
judgment is running into thousands of pages, it may require
some time and as soon as the full judgment will be made ready,
the same will be supplied to them free of cost. It does not mean
that on the date of pronouncing the decision (decision was B
pronounced on various dates), the whole judgment was not
ready or incomplete.

56. As the Code mandates that the accused are entitled
to full/whole judgment, unless the conclusion relating to all the C
convicted accused is read over and explained to them,
opportunity of hearing on sentence has been provided to them
or their respective counsel and incorporation of both the
conclusions relating to conviction and sentence has been done,
the same cannot be supplied to the accused. Taking note of
the number of persons involved, witnesses examined, D
documents marked/exhibited which are running into thousands
of pages, unless the full/whole judgment containing all the
details, the same cannot be supplied to the accused. In other
words, the supplied copy of the judgment unless contains the
charges, materials both oral and documentary relied on by the E
prosecution, discussion, ultimate conclusion and the sentence,
the same cannot be treated as full/whole judgment in terms of
the procedure prescribed under the Code. Inasmuch as all
these factual aspects, particularly, the peculiar position about
the number of accused and voluminous oral and documentary F
evidence, the Designated Judge not only apprised the accused
regarding the offences for which they were found to be guilty
but also of the reasoning adopted and the materials relied on
by him.
G
57. It is also relevant to point out that on apprisal of various
offences for which the accused were found to be guilty before
hearing all the accused on sentence, their respective counsel
took time for filing written arguments, in fact, filed written
submissions on various dates conveying their views to the
H
140 SUPREME COURT REPORTS [2013) 15 S.C.R.

A Court. It is also clear that on .consideration of the objections
raised, the accused were awarded sentence and the same
were ultimately conveyed to all the accused. It is not in dispute
that neither the decision relating to ultimate conviction nor the
sentence could be done in one day in respect of all the
B convicted 100 accused. Undoubtedly, it spread over to various
dates and we are satisfied that the Designated Court I
completed its task by passing the impugned orders keeping
in mind the procedural aspects to be followed in terms of the ·
Code (vide Sections 353, 354, 362, 363 etc.) and at the same 1

c time, adhering to the principles of natural justice and the
valuable right of the accused under Article 21 of the Constitution.

Whether the impugned judgment is in violation of Section
362 of the Code.

D 58. It is also brought to our notice that several applications
were made by various accused persons to amend the
conviction orders which were dismissed as meritless by the
Designated Court. In fact, the Designated Court dismissed the
applications for amending the conviction orders of 99 accused
E persons. Learned senior counsel for A-1 relied upon Section
362 and contended that since judgment on sentence had not
been pronounced, the Designated Court could amend the
conviction order to bring all convictions under the IPC instead
of convicting 99 accused persons under TADA. In the light of
F the submissions made, we verified the records and impugned
final judgment, particularly, Part 46 and found that neither A-1
nor any other counsel pointed out the amendment, in particular,
that would attract the provisions of Section 362 of the Code.
On the other hand, as rightly pointed out by the counsel for the
CBI, there is no alteration and amendment that has been made
G in the judgment after its pronouncement as claimed by the
counsel for the appellant.

59. The Code being essentially a code of procedure unlike
all procedural laws is designed to further the ends of justice and
H not to frustrate them by the introduction of endless technicalities.
YAKUB ABDUL RAZAK MEMON v. STATE OF 1'41
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

The object of the Code is to ensure for the accused a full and A
fair trial in accordance with the principles of natural justice. From
the materials placed and after verification of the decision,
apprisal of the accused about the contents of the judgment,
hearing all the accused and their pleaders regarding sentence,
we are satisfied that the Designated Court has complied with B
the requirements of law and we are also satisfied that
considering the voluminous nature of work, even if there is mere
procedural irregularity that would not vitiate the trial or the
ultimate conclusion unless the same results in miscarriage of
justice. We are satisfied that the impugned judgment and c
procedure followed and adopted by the Designated Court fulfill
the mandate of the Code and there is neither violation of
principles of natural justice nor breach of Article 21 of the
Constitution. Even otherwise, taking note of the fact that present
appeals are the only remedy for the appellants, we heard the D
counsel at length, perused and analysed all the oral and
documentary evidence running into several volumes. Every
opportunity was granted to all the counsel and all the issues
were considered without any restriction. Accordingly, we reject
the contention raised by learned senior counsel for the
E
appellant.

Conspiracy

60. Chapter VA of IPC speaks about Criminal Conspiracy.
Section 120A defines criminal conspiracy which is as under: F

"120A. Definition of criminal conspiracy.- When two or
more persons agree to do, or cause to be done,-

(1) an illegal act, or
G
(2) an act which is not illegal by illegal means, such an
agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to
commit an offence shall amount to a criminal conspiracy
unless some act besides the agreement is done by one H
142 SUPREME COURT REPORTS [2013] 15 S.C.R.

A or more parties to such agreement in pursuance thereof.

Explanation .-It is immaterial whether the illegal act
is the ultimate object of such agreement, or is merely
incidental to that object."
B Section 1208 speaks about punishment of criminal
conspiracy which is as under:

"1208. Punishment of criminal conspiracy.-(1)
Whoever is a party to a criminal conspiracy to commit an
c offence punishable with death, imprisonment for life or
rigorous imprisonment for a term of two years or upwards,
shall, where no express provision is made in this Code for
the punishment of such a conspiracy, be punished in the
same manner as if he had abetted such offence.
D
(2) Whoever is a party to a criminal conspiracy other than
a criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with
fine or with both."
E
Objects and Reasons of the 1913 Amendment

61. The above mentioned sections were introduced by the
amendment of 1913. It is important to notice the Objects and
F Reasons of the said amendment to understand that the
underlying purpose of introducing Section 120-A was to make
a mere agreement to do an illegal act or an act which is not
illegal by illegal means, punishable.

Objects and Reasons are as follows:
G
"The sections of the Indian Penal Code which deal directly
with the subject of conspiracy are those contained in
ChapterVand Section 121-A of the Code. Under the latter
provision, it is an offence to conspire to commit any of the
offences punishable by Section 121 of the Indian Penal
H
YAKUBABDUL RAZAK MEMON v. STATE OF 143
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

Code or to conspire to deprive the King of sovereignty of A
British India or any part thereof or to overawe by means
of criminal force or show of criminal force the Government
of India or any Local Government and to constitute a
conspiracy under this Section. It is not necessary that any
act or illegal omission should take place in pursuance B
thereof. Under Section 107, abetment includes engaging
with one or more person or persons in any conspiracy for
the doing of a thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the
doing of that thing. In other words, except in respect of the c
offences particularized in Section 121-A conspiracy per se
is not al'I offence under the Indian Penal Code."

"On the other hand, by the common law of England, if two
or more persons agree together to do anyting contrary to
law, or to use unlawful means in the carrying out of an D
object not otherwise unlawful, the persons, who so agree,
commit the offence of conspiracy. In other words,
conspiracy in England may be defined as an agreement
of two or more persons to do an unlawful act or to do a
lawful act by unlawful means, and the parties to such a E
conspiracy are liable to indictment."

"Experience has shown that dangerous conspiracies have
entered into India which have for their object aims other
than the commission of the offences specified in Section F
121-A of the Indian Penal Code and that the existing law
is inadequate to deal with modern conditions. The present
Bill is designed to assimilate the provisions of the Indian
Penal Code to those of the English law with the additional
safeguard that in the case of a conspiracy other than a G
conspiracy to commit an offence some overt act is
necessary to bring the conspiracy within the purview of the
criminal law. The Bill makes criminal conspiracy a
substantive offence, and when such a conspiracy is to
commit an offence punishable with death, or rigourous
H
144 SUPREME COURT REPORTS [2013] 15 S.C.R.

A imprisonement for a term of two years or upwards, and no
express provision is made in the Code, provides a
punishment of the same nature as that which might be
awarded for the abetment of such an offence. In all other
cases of criminal conspiracy the punishment contemplated
B is imprisonment of either description for a term not
exceeding six months or with fine, or with both."

Prior to the amendment of the Code and the introduction
of Sections 120-A and 8, the doctrine of agency was
C applicable to ascertain the liability of the conspirators, however,
conspiracy in itself was not an offence (except for certain
offences). The amendment made conspiracy a.substantive
offence and rendered the mere agreement to commit an
offence punishable. Prior to the amendment, unless an overt
act took place in furtherance of the conspiracy it was not
D indictabla (it would become indictable by virtue of being
abetment). The proposition that the mere agreement constitutes
the offence has been accepted by this Court in several
judgments. Reference may be made to Major E.G. Barsay vs.
State of Bombay (1962) 2 SCR 195 wherein this Court held
E that the the gist of the offence is an agreement to break the
law. The parties to such an agreement will be guilty of criminal
conspiracy, though the illegal act agreed to be done has not
been done. It is not an ingredient of the offence that all the
parties should agree to do a single illegal act. It may comprise
F the commission of a number of acts. The Court has held as
under:-

"31 .... Section 120-A of the Indian Penal Code defines
"criminal conspiracy" and under that definition, "When two
or more persons agree to do, or cause to be done, an
G
illegal act, or an act which is not illegal by illegal means,
such an agreement is designated a criminal
conspiracy."The gist of the offence is an agreement to
break the law. The parties to such an agreement will be
guilty of criminal conspiracy, though the illegal act agreed
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 145
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

to be done has not been done. So too, it is not an A
ingredient of the offence that all the parties should agree
to do a single illegal act. It may comprise the commission
of a number of acts. Under Section 43 of the Indian Penal
Code, an act would be illegal if it is an offence or if it is
prohibited by law. Under the first charge the accused are B
charged with having conspired to do three categories of
illegal acts, and the mere fact that all of them could not be
convicted separately in respect of each of the offences has
no relevancy in considering the question whether the
offence of conspiracy has been committed. They are all c
guilty of the offence of conspiracy to do illegal acts, though
for individual offences all of them may not be liable.

Theory of Agency and Conspiracy

62. An important facet of the Law of Conspiracy is that D
apart from it being a distinct offence, all conspirators are liable
for the acts of each other of the crime or crimes which have
been committed as a result of the conspiracy. This principle has
been recognized right from the early judgment in Regina vs.
Murphy (1873) 173 ER 502. In the said judgment Coleridge J. E
while summing up for the Jury stated as follows:

" ... I am bound to tell you, that although the common design
is the root of the charge, it is not necessary to prove that
these two parties came together and actually agreed in
F
terms to have this common design and to pursue it by
comroeff means, and so to carry it into execution. This is
not necessary, because in many cases of the most clearly
established conspiracies there are no means of proving
any such thing and neither law nor common sense requires
that it should be proved. If you find that these two persons G
pursued by their acts the same object, often by the same
means, one performing one part of an act, so as to
complete it, with a view to the attainment of the object
which they were pursuing, you will be at liberty to draw the
conclusion that they have been engaged in a conspiracy H
146 SUPREME COURT REPORTS [2013] 15 S.C.R.

A to effect that object. The question you have to ask
yourselves is, 'Had they this common design, and did they
pursue it by these common means - the design being
unlawful?' it is not necessary that it should be proved that
these defendants met to concoct this scheme, nor is it
B necessary that they should have originated it. If a
conspiracy be already formed, and a person joins it
afterwards, he is equally guilty. You are to say whether,
from the acts that have been proved, you are satisfied that
these defendants were acting in concertin this matter. If you
c are satisfied that there was concert between them, I am
bound to say that being convinced of the conspiracy, it is
not necessary that you should find both Mr. Murphy and Mr.
Douglas doing each particular act, as after the fact of
conspiracy is already established in your minds, whatever
is either said or done by either of the defendants in
D
pursuance of the common design, is, both in law and in
common sense, to be considered as the acts of both."

63. Each conspirator can be attributed each others actions
in a conspiracy. Theory of agency applies and this rule existed
E even prior to the amendment of the Penal Code in India. This
is reflected in the rule of evidence u/s 10 of the Evidence Act.
Conspiracy is punishable independent of its fruition. The
principle of agency as a rule of liability and not merely a rule of
evidence has been accepted both by the Privy Council as well
F as by this Court. The following judgments are relevant for this
proposition:

(a) Babula/ vs. Emperor, AIR 1938 PC 130, where the
Privy Council held that:

G "if several persons conspire to commit offences, and
commit overt acts in pursuance of the conspiracy (a
circumstance which makes the act of one the act of each
and all the conspirators) these acts are committed in the
course of the same transaction, which embraces the
H conspiracy and the acts done under it. .. "
YAKUB ABDUL RAZAK MEMON v. STATE OF 147
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J]

(b) State of AP. vs. Kandimalla Subbaiah (1962) 1 SCR A
194, where this Court opined that where a number of offences
are committed by several persons in pursuance of a conspiracy
it is usual to charge them with those offences as well as with
the offence of conspiracy to commit those offences, if the
alleged offences flow out of the conspiracy, the appropriate B
form of charge would be a specific charge in respect of each
of those offences along with the charge of conspiracy.

(c) State of H.P. vs. Krishan Lal Pardhan, (1987) 2 SCC
17 where it was held that the offence of criminal conspiracy C
consists of meeting of minds of two or more persons for
agreeing to do or causing to be done an illegal act or an act
by illegal means, and the performance of an act in terms
thereof. If pursuant to the criminal conspiracy the conspirators
commit several offences, then all of them will be liable for the
offences even if some of them had not actively participated in D
the commission of the offences.

(d) In Nalini (supra), this Court explained that conspiracy
results in a joint responsibility and everything said written or
done in furtherance of the common purpose is deemed to have E
been done by each of them. The Court held:

"583. Some of the broad principles governing the law of
conspiracy may be summarized though, as the name
implies, a summary cannot be exhaustive of the principles.
F
1. Under Section 120-A IPC offence of criminal conspiracy
is committed when two or more persons agree to do or
cause to be done an illegal act or legal act by illegal
means. When it is a legal act by illegal means overt act is
necessary. Offence of criminal conspiracy is an exception G
to the general law where intent alone does not constitute
crime. It is intention to commit crime and joining hands with
persons having the same intention. Not only the intention
but there has to be agreement to carry out the object of
the intention, which is an offence. The question for H
148 SUPREME COURT REPORTS [2013] 15 S.C.R.

A consideration in a case is did all the accused have the
intention and did they agree that the crime be committed.
It would not be enough for the offence of conspiracy when
some of the accused merely entertained a wish,
howsoever horrendous it may be, that offence be
B committed.

2. Acts subsequent to the achieving of the object of
conspiracy may tend to prove that a particular accused was
party to the conspiracy. Once the object of conspiracy has
been achieved, any subsequent act, which may be
c unlawful, would not make the accused a part of the I
conspiracy like giving shelter to an absconder.

3. Conspiracy is hatched in private or in secrecy. It is rarely
possible to establish a conspiracy by direct evidence.
D Usually, both the existence of the conspiracy and its objects
have to be inferred from the circumstances and the
conduct of the accused.

4. Conspirators may for example, be enrolled in a chain-
A enrolling B, B enrolling C, and so on; and all will be
E
members of a single conspiracy if they so intend and
agree, even though each member knows only the person
who enrolled him and the person whom he enrols. There
may be a kind of umbrella-spoke enrolment, where a single
person at the center does the enrolling and all the other
F members are unknown to each other, though they know
that there are to be other members. These are theories
and in practice it may be difficult to tell which conspiracy
in a particular case falls into which category. It may
however, even overlap. But then there has to be present
G mutual interest. Persons may be members of single
conspiracy even though each is ignorant of the identity of
many others who may have diverse roles to play. It is not
a part of the crime of conspiracy that all the conspirators
need to agree to play the same or an active role.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 149
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

5. When two or more persons agree to commit a crime of A
conspiracy, then regardless of making or considering any
plans for its commission, and despite the fact that no step
is taken by any such person· to carry out their common
purpose, a crime is committed by each and every one who
joins in the agreement. There has thus to be two B
conspirators and there may be more than that. To prove
the charge of conspiracy it is not necessary that intended
crime was committed or not. If committed it may further
help prosecution to prove the charge of conspiracy.

6. It is not necessary that all conspirators should agree to
c
the common purpose at the same time. They may join with
other conspirators at any time before the consummation
of the intended objective, and all are equally responsible.
What part each conspirator is to play may not be known
to everyone or the fact as to when a conspirator joined the D
conspiracy and when he left.

7. A charge of conspiracy may prejudice the accused
because it forces them into a joint trial and the court may
consider the entire mass of evidence against every E
accused. Prosecution has to produce evidence not only to
show that each of the accused has knowledge of the object
of conspiracy but also of the agreement. In the charge of
conspiracy the court has to guard itself against the danger
of unfairness to the accused. Introduction of evidence F
against some may result in the conviction of all, which is
to be avoided. By means of evidence in conspiracy, which
is otherwise inadmissible in the trial of any other
substantive offence prosecution tries to implicate the
accused not only in the conspiracy itself but also in the
G
substantive crime of the alleged conspirators. There is
always difficulty in tracing the precise contribution of each
member of the conspiracy but then there has to be cogent
and convincing evidence against each one of the accused
charged with the offence of conspiracy. As observed by
H
150 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Judge Learned Hand "this distinction is important today
when many prosecutors seek to sweep within the dragnet
of conspiracy all those who have been associated in any
degree whatever with the main offenders".

8. As stated above it is the unlawful agreement and not
B
its accomplishment, which is the gist or essence of the
crime of conspiracy. Offence of criminal conspiracy is
complete even though there is no agreement as to the
means by which the purpose is to be accomplished. It is
the unlawful agreement which is the gravamen of the crime
c of conspiracy. The unlawful agreement which amounts to
a conspiracy need not be formal or express, but may be
inherent in and inferred from the circumstances, especially
declarations, acts and conduct of the conspirators. The
agreement need not be entered into by all the parties to it
D at the same time, but may be reached by successive
actions evidencing their joining of the conspiracy.

9. It has been said that a criminal conspiracy is a
partnership in crime, and that there is in each conspiracy
E a joint or mutual agency for the prosecution of a common
plan. Thus, if two or more persons enter into a conspiracy,
any act done by any of them pursuant to the agreement
is, in contemplation of law, the act of each of them and they
are jointly responsible therefore. This means that everything
F said, written or done by any of the conspirators in execution
or furtherance of the common purpose is deemed to have
been.said, done or written by each of them. And this joint
responsibility extends not only to what is done by any of
the conspirators pursuant to the original agreement but
also to collateral acts incidental to and growing out of the
G
original purpose. A conspirator is not responsible,
however, for acts done by a co-conspirator after
termination of the conspiracy. The joinder of a conspiracy
by a new member does not create a new conspiracy nor
does it change the status of the other conspirators, and
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 151
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

the mere fact that conspirators individually or in groups A
perform different tasks to a common end does not split up
a conspiracy into several different conspiracies.

10. A man may join a conspiracy by word or by deed.
However, criminal responsibility for a conspiracy requires
B
more than a merely passive attitude towards an existing
conspiracy. One who commits an overt act with knowledge
of the conspiracy is guilty. And one who tacitly consents
to the object of a conspiracy and goes along with other
conspirators, actually standing by while the others put the
conspiracy into effect, is guilty though he intends to take C
no active part in the crime."

(emphasis supplied)

64. The offence under Section 120B is a crime between D
the parties to do a particular act. Association or relation to lead
conspiracy is not enough to establish the intention to kill the
deceased. To make it clear, to bring home the charge of
conspiracy within the ambit of Section 120B, it is necessary to
establish that there was an agreement between the parties for
E
doing an unlawful act. It is difficult to establish conspiracy by
direct evidence.

65. Since conspiracy is hatched in secrecy, to bring home
the charge of conspiracy, it is relevant to decide conclusively
the object behind it from the charges leveled against the F
accused and the facts of the case. The object behind it is the
ultimate aim of the conspiracy. Further, many means might have
been.adopted to achieve this ultimate object. The means may
even constitute different offences by themselves, but as long
as they are adopted to achieve the ultimate object of the G
conspiracy, they are also acts of conspiracy.

66. In Ajay Aggarwal vs. Union of India, AIR 1993 SC
1637, this Court rejected the submission of the accused that
as he was staying in Dubai and the conspiracy was initially
H
152 SUPREME COURT REPORTS (2013] 15 S.C.R.

A hatched in Chandigarh and he did not play an active part in the
commission of the acts which ultimately lead to the incident,
thus, could not be liable for any offence, observing:

"8 ..... Section 120-A of the IPC defines 'conspiracy' to
mean that when two or more persons agree to do, or cause
B
to be done an illegal act, or an act which is not illegal by
illegal means, such an agreement is designated as
"criminal conspiracy". No agreement except an agreement
to commit an offence shall amount to a criminal conspiracy,
unless some act besides the agreement is done by one
c or more parties to such agreement in furtherance thereof.
Section 120-B of the I PC prescribes punishment for
criminal conspiracy. It is not necessary that each
conspirator must know all the details of the scheme nor be
a participant at every stage. It is necessary that they should
D agree for design or object of the conspiracy. Conspiracy
is conceived as having three elements: (1) agreement (2)
between two or more persons by whom the agreement is
effected; and (3) a criminal object, which may be either the
ultimate aim of the agreement, or may constitute the
E means, or one of the means by which that aim is to be
accomplished. It is immaterial whether this is found in the
ultimate objects. The common law definition of 'criminal
conspiracy' was stated first by Lord Denman in Jones
case (1832) that an indictment for conspiracy must "charge
F a conspiracy to do an unlawful act by unlawful means ..... "

The Court, thus, held that an agreement between two or
more persons to do an illegal act or legal act by illegal means
is criminal conspiracy. Conspiracy itself is a substantive offence
and is distinct from the offence to be committed, for which the
G conspiracy was entered into. A conspiracy is a continuing
offence and continues to subsist and is 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 necessiiy. A
H
YAKUBABDUL RAZAK MEMON v. STATE OF 153
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

crime is complete as soon as the agreement is made, but it is A
not a thing of the moment. It does not end with the making of
the agreement. It will continue so long as there are two or more
parties to it intending to carry into effect the design.

(Vide: Sudhir Shanti/al Mehta vs. Central Bureau of 8·
Investigation, (2009) 8 SCC 1)

67. In Yash Pal Mitta/ vs. State of Punjab, AIR 1977 SC
2433, the rule was laid down as follows:

"The very agreement, concert or league is the ingredient C
of the offence. It is not necessary that all the conspirators
must know each and every detail of the conspiracy as long
as they are co-participators in the main object of the
conspiracy. There may be so many devices and
techniques adopted to achieve the common goal of the D
conspiracy and there may be division of performances in
the chain of actions with one object to achieve the real end
of which every collaborator must be aware and in which
each one of them must be interested. There must be unity
of object or purpose but there may be plurality of means
E
sometimes even unknown to one another, amongst the
conspirators. In achieving the goal, several offences may
be committed by some of the conspirators even unknown
to the others. The only relevant factor is that all means
adopted and illegal acts done must be and purported to
F
be in furtherance of the object of the conspiracy even
though there may be sometimes misfire or over-shooting
by some of the conspirators."

68. For an offence under Section 1208 IPC, the
prosecution need not necessarily prove that the conspirators G
expressly agreed to do or cause to be done the illegal act, the
agreement may be proved by necessary implication. It is not
necessary that each member of the conspiracy must know all
the details of the conspiracy. The offence can be proved largely
from the inferences drawn from the acts or illegal omission H
154 SUPREME COURT REPORTS [2013] 15 S.C.R.

A committed by the conspirators in pursuance of a common
design. Being a continuing offence, if any acts or omissions
which constitute an offence are done in India or outside its
territory, the conspirators continuing to be the parties to the
conspiracy and since part of the acts were done in India, they
B would obviate the need to obtain the sanction of the Central
Government. All of them need not be present in India nor
continue to remain in India. The entire agreement must be
viewed as a whole and it has to be ascertained as to what in
fact the conspirators intended to do or the object they wanted
c to achieve. (Vide: R.K. Dalmia vs. Delhi Administration, AIR
1962 SC 1821; Lennart Schussler & Anr. vs. Director of
Enforcement & Anr., (1970) 1 SCC 152; Shivanarayan
Laxminarayan Joshi vs. State of Maharashtra, (1980) 2 SCC
465 and Mohammad Usman Mohammad Hussain Maniyar
and Another vs. State of Maharashtra, Al R 1981 SC 1062)
0
69. In Yogesh @ Sachin Jagdish Joshi vs. State of
Maharashtra, (2008) 10 SCC 394, this Court held:

"25 Thus, it is manifest that the meeting of minds of two
E or more persons for doing an illegal act or an act by illegal
means is sine qua non of the criminal conspiracy but it may
not be possible to prove the agreement between them by
direct proof. Nevertheless, existence of the conspiracy and
its objective can be inferred from the surrounding
F circumstances and the conduct of the accused. But the
incriminating circumstances must form a chain of events
from which a conclusion about the guilt of the accused
could be drawn. It is well settled that an offence of
conspiracy is a substantive offence and renders the mere
agreement to commit an offence punishable, even if an
G
offence does not take place pursuant to the illegal
agreement."

70. In Nirmal Singh Kah/on vs. State of Punjab, AIR 2009
SC 984, this Court following Ram Lal Narang vs. State (Delhi
H Admn}, AIR 1979 SC 1791, held that a conspiracy may be a
YAKUB ABDUL RAZAK MEMON v. STATE OF 155
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
general one and a separate one, meaning thereby, a larger A
conspiracy and a smaller one which may develop in successive
stages.

71. In K.R. Purushothaman vs. State of Kera/a, (2005) 12
SCC 631, this Court held:
B
"11. Section 120-A IPC defines 'criminal conspiracy'.
According to this section when two or more persons agree
to do, or cause to be done (i) an illegal act, or (ii) an act
which is not illegal by illegal means, such an agreement
is designated a criminal conspiracy ...... The existence of C
conspiracy and its objects are usually deduced from the
circumstances of the case and the conduct of the accused
involved in the conspiracy ... "

72. In Stale of Maharashtra vs. Som Natft Thapa, AIR
D
1996 SC 1744, this Court held:

" ... to establish a charge of conspiracy knowledge about
indulgence in either an illegal act or a legal act by illegal
means is necessary. In some cases, intent of unlawful use
being made of the goods or services in question may be E
inferred from the knowledge itself. This apart, the
prosecuf1on has not to establish that a particular unlawful
use was intended ...... The ultimate offence consists of a
chain of actions, it would not be necessary for the
prosecution to establish, to bring home the charge of F
conspiracy, that each of the conspirators had the
knowledge of what the collaborator would do, so long as
it is known that the collaborator would put the goods or
service to an unlawful use."
G
73. In Stale through Superintendent of Police, CBI/SIT vs.
Nalini & Ors, (1999) 5 SCC 253, this Court held:

"...... Offence of criminal conspiracy is an exception to the
general law where intent alone does not constitute crime.
It is intention to commit crime and joining hands with H
156 SUPREME COURT REPORTS (2013] 15 S.C.R.

A persons having the same intention. Not only the intention
but there has to be agreement to carry out the object of
the intention, which is an offence. The question for
consideration in a case is did all the accused have the
intention and did they agree that the crime be committed.
B It would not be enough for the offence of conspiracy when
some of the accused merely entertained a wish,
howsoever horrendous it may be, that offence be
committed ......... \! is not necessary that all conspirators
should agree to the common purpose at the same time.
They may join with other conspirators at any time before
c the consummation of the intended objective, and all are
equally responsible ...... Prosecution has to produce
evidence not only to show that each of the accused has
knowledg.e of the object of conspiracy but also of the
agreement. In the charge of conspiracy the court has to
D guard itself against the danger of unfairness to the
accused ...... There has to be cogent and convincing
evidence against each one of the accused charged with
the offence of conspiracy ....... it is the unlawful agreement
and not its accomplishment, which is the gist or essence
E of the crime of conspiracy. Offence of criminal conspiracy
is complete even though there is no agreement as to the
means by which the purpose is to be accomplished. It is
the unlawful agreement which is the gravamen of the crime
of conspiracy. The unlawful agreement which amounts to
F a conspiracy need not be formal or express, but may be
inherent in and inferred from the circumstances, especially
declarations, acts and conduct of the conspirators. The
agreement need not be entered into by all the parties to ii
at the same time, but may be reached by successive
G actions evidencing their joining of the conspiracy.

The agreement, sine qua non of conspiracy, may be
proved either by direct evidence which is rarely available
in such cases or it may be inferred from utterances,
writings, acts, omissions and conduct of the parties to the
H
YAKUBABDUL RAZAK MEMON v. STATE OF 157
MAH.t;-RASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

conspiracy which is usually done. In view of Section 10 of A
the Evidence Act anything said, done or written by those
who enlist their support to the object of conspiracy and
those who join later or make their exit before completion
of the object in furtherance of their common intention will
be relevant facts to prove that each one of them can B
justifiably be treated as a conspirator."

(See Also: Kehar Singh & Ors. vs. State (Delhi Admn.),
AIR 1988 SC 1883)

74. In Firozuddin Basheeruddin & Ors. vs. State of Kera/a, c
(2001) 7 SCC 596, this Court held:

"Like most crimes, conspiracy requires an act (actus reus)
and an accompanying mental state (mens rea). The
agreement constitutes the act, and the intention to achieve D
the unlawful objective of that agreement constitutes the
required mental state .... .The law punishes conduct that
threatens to produce the harm, as well as conduct that has
actually produced it. Contrary to the usual rule that an
attempt to commit a crime merges with the completed E
offence, conspirators may be tried and punished for both
the conspiracy and the completed crime. The rationale of
conspiracy is that the required objective manifestation of
disposition to criminality is provided by the act of
agreement. Conspiracy is a clandestine activity. Persons
F
generally do not form illegal covenants openly. In the
interests of security, a person may carry out his part of a
cor:ispiracy without even being informed of the identity of
his co-conspirators .......

Conspiracy is not only a substantive crime, it also serves G
as a basis for holding one person liable for the crimes of
others in cases where application of the usual doctrines
of complicity would not render that person liable. Thus, one
who enters into a conspiratorial relationship is liable for
every reasonably foreseeable crime committed by every H
158 SUPREME COURT REPORTS [2013] 15 S.C.R.

A other member of the conspiracy in furtherance of its
objectives, whether or not he knew of the crimes or aided
in their commission. The rationale is that criminal acts
done in furtherance of a conspiracy may be sufficiently
dependent upon the encouragement and support of the
B group as a whole to warrant treating each member as a
causal agent to each act. Under this view, which of the
conspirators committed the substantive offence would be
less significant in determining the defendant's liability than
the fact that the crime was performed as a part of a larger
c division of labour to which the accused had also contributed
his efforts.

Regarding admissibility of evidence, loosened standards
prevail in a conspiracy trial. Contrary to the usual rule, in
conspiracy prosecutions, any declaration by one
D conspirator, made in furtherance of a conspiracy and
during its pendency, is admissible against each -co-
conspirator. Despite the unreliability of hearsay evidence,
it is admissible in conspiracy prosecutions ......... Thus
conspirators are liable on an agency theory for statements
E of co-conspirators, just as they are for the overt acts and
crimes committed by their confreres."

(See also: State (NCT of Delhi) vs. Navjot Sandhu @
Afsan Guru, (2005) 11 SCC 600)
F 75. In Ram Narayan Popli vs. Central Bureau of
Investigation, (2003) 3 SCC 641, this Court held:

"....... The elements of a criminal conspiracy have been
stated to be: (a) an object to be accomplished, (b) a plan
G or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more
of the accused persons whereby, they become definitely
committed to cooperate for the accomplishment of the
object by the means embodied in the agreement, or by any
H effectual means, and (d) in the jurisdiction where the
YAKUB ABDUL RAZAK MEMON v. STATE OF 159
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

statute required an overt act. The essence of a criminal A
conspiracy is the unlawful combination and ordinarily the
offence is complete when the combination is framed. From
this, it necessarily follows that unless the statute so
requires, no overt act need be done in furtherance of the
conspiracy, and that the object of the combination need B
not be accomplished, in order to constitute an indictable
offence. Law making conspiracy a crime is designed to
curb immoderate power to do mischief which is gained by
a combination of the means. The encouragement and
support which co-conspirators give to one another C
rendering_enterprises possible which, if left to individual
effort, would have been impossible, furnish the ground for
visiting conspirators and abettors with condign punishment.
The conspiracy is held to be continued and renewed as
to all its members wherever and whenever any member
of the conspiracy acts in furtherance of the common D
design."

76. In Mohd. Khalid vs. State of West Bengal, (2002) 7
SCC 334, this Court held:
E
"Where trustworthy evidence establishing all links of
circumstantial evidence is available the confession of a co-
accused as to conspiracy even without corroborative
evidence can be taken into consideration."

77. In the present case, the conspiracy might have been F
started in Dubai but ultimately it continued here in India and a
part of the object was executed in India and even in the
conspiratorial meetings at Dubai, the matter was discussed with
respect to India and amongst Indian citizens. Further, as far as
the present accused is concerned, the fact that he was G
constantly present at Al-Hussaini building, where the major part
of the plans have been made and executed, is established,
and his active involvement has also emerged from the evidence
on record as to how he was dealing with the so called men of
Tiger, managing the ill gotten money of Tiger, booking tickets H
160 SUPREME COURT REPORTS [2013) 15 S.C.R.

A and actively working for confirming them for the conspirators.
Further, there is enough evidence of meeting with co-accused
and his actively working in furtherance of the conspiracy. The
present accused need not be present at each and every
meeting for being held to be a part of the conspiracy.
B 78. Section 10 of the Evidence Act further provides a
unique and special rule of evidence to be followed in cases of
conspiracy. Section 1O reads as under:

"10. Things said or done by conspirator in reference
c to common design-Where there is reasonable ground
to believe that two or more persons have conspired
together to commit an offence or an actionable wrong,
anything said, done or written by any one of such persons
in reference to their common intention, after the time when
D such intention was first entertained by any one of them, is
a relevant fact as against each of the persons believed to
so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing
that any such person was a party to it."
E Illustrations

(i) Reasonable ground exists for believing that A has joined
in a conspiracy to wage war against the Government of
India.
F
(ii) The facts that B procured arms in Europe for the
purpose of the conspiracy, C collected money in Calcutta
for a like object, D persuaded persons to join the
conspiracy in Bombay, E published writings advocating the
object in view at Agra, and F transmitted from Delhi to G
G at Kabul the money which C had collected at Calcutta, and
the contents of a letter written by H giving an account of
the conspiracy, are each relevant, both to prove the
existence of the conspiracy, and to prove A' s complicity
in it, although he may have been ignorant of all of them,
H
YAKUBABDUL RAZAK MEMON v. STATE OF 161
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

and although the persons by whom they were done were A
strangers to him, and although they may have taken place
before he joined the conspiracy or after he left it.

It is to be seen that there are three conditions in the
Section. One is, before utilizing the section for admitting B
certain statements of the co-accused from a confessi~n,
there should be a reasonable ground to believe that two
or more persons have conspired together to commit an
offence or an actionable wrong. According to this Section,
only when this ,condition is satisfied in a given case, then C
only the question of utilizing the statement of an accused
against the co-accused can be taken into consideration.
Thus, as per Section 10, the following principles are agreed
upon unanimously:-

1. There shall be prima facie evidence affording a D
reasonable ground for the Court to believe that two
or more persons were part of a conspiracy to
commit a wrongful act or offence;

2. Once this condition was fulfilled, anything said, done E
or written by any of its members, in reference to
their common intention, will be considered as
evidence against other co-conspirators;

3. This fact would be evidence for the purpose of
existence of a conspiracy and that the persons F
were a part of such conspirac)f

79. This Court, in Nalini (supra), observed as under:

(a) Justice Thomas (para 106-113)
G
Theory of Agency, according to him, is the basic principle
which underlines Section 10 of the Evidence Act. He says that
the first condition for application of Section 1O is "reasonable
ground to believe" that the conspirators have conspired together
based on prima facie evidence. If this condition is fulfilled, H
162 SUPREME COURT REPORTS [2013] 15 S.C.R.

A anything said by any of the conspirators becomes substantive
evidence for the purpose of corroboration if the statement is in
reference to their common intention (This is much wider than
its English counterpart which uses the expression in furtherance
of the common object). The arrest of a conspirator will not cut-
B off his connection with the conspiracy.

(b) Justice Wadhwa concurring, (para 575-581)

He was of the opinion that before considering the principle
of Section 10 and applying it to the facts and circumstances, it
C is necessary to ascertain the period of conspiracy because any
statement made before or after the conspiracy is thatched will
not be admissible under the aforesaid section. It would also be
relevant against a person who entered or left the time frame
during the existence of conspiracy.
D
(c) Justice Wadhwa (para 663-665)

Two conditions are to be followed:- firstly, reasonable
ground to believe conspiracy, and secondly, conspiracy is to
commit an offence or an actionable wrong. If both the conditions
E exist, then anything said or done can be used as a relevant fact
against one another, to prove the existence of conspiracy and
that the person was a part to it.

80. In the case on hand, the first condition for applying
F Section 1O of the Evidence Act is satisfied by the evidence of
PWs 1 and 2 (approvers). There are 77 confessions in this
case which are voluntary and are corroborated with the other
circumstances of the case. These confessions contain
statements inculpating the makers as well as the co-accused.
G A common charge of conspiracy was framed against all the co-
conspirators including A-1. This is evident from the charges
framed by the Special Judge which we have already extracted.
On all the aforesaid charges, the appellant was found guilty by
the Designated Court. The evidence in respect of A-1 is in the
H nature of the confessions made by the co-accused persons, the
YAKUB ABDUL RAZAK MEMON v. STATE OF 163
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
testimony of prosecution witnesses and documentary evidence A
on record.

81 . The law on the issue emerges to the effect that
conspiracy is an agreement between two or more persons to
do an illegal act or an act which is not illegal by illegal means. B
The object behind the conspiracy is to achieve the ultimate aim
of conspiracy. In order to achieve the ultimate object, parties
mqy adopt many means. Such means may constitute differen.t
offences by themselves, but so long as they are adopted to
achieve the ultimate object of the conspiracy, they are also acts C
of conspiracy. For an offence of conspiracy, it is not necessary
for the prosecution to prove that conspirators expressly agreed
to do an illegal act, the agreement may be proved by necessary
implication. It is also not necessary that each member of the
conspiracy should know all the details of the conspiracy.
Conspiracy is a continuing offence. Thus, if any act or omission D
which constitutes an offence is done in India or outside its
territory, the conspirators continue to be the parties to the
conspiracy. The conspiracy may be a general one and a smaller
one which may develop in successive stages. It is an unlawful
agreement and not its accomplishment, which is the gist/ E
essence of the crime of conspiracy. In order to determine
whether the conspiracy was hatched, the court is required to
view the entire agreement and to find out as in fact what the
conspirators intended to do.
F
82. Mr. Jaspal Singh, learned senior counsel for A-1,
submitted that from the evidence of PW-2 (Approver), it is
evident that various meetings were held on and from
02.02.1993 till 11.03.1993 at various places in and around
Bombay. By taking us through the entire evidence of PW-2, he G
submitted that neither PW-2 nor any other co-accused nor even
any independent witness/evidence spoken to about the role of
A-1 either being aware of the said meetings or being present
in them or having any knowledge about what conspired in the
said meetings. Though learned senior counsel has vehemently
H
164 SUPREME COURT REPORTS [2013] 15 S.C.R.

A contended that A-1 was neither involved in arranging for landing
of arms and ammunitions nor in conducting surveys and
choosing targets nor in filling vehicles with ROX and arms nor
in the meeting held at Al-Hussaini building, the specific
instances as stated by various prosecution witnesses amply
B prove his involvement.

83. Apart from the evidence of PW-2, several accused
persons in their confessional statements and other witnesses
examined on the side of the prosecution clearly implicate A-1
C and his involvement in all the events which we are going to
discuss under various heads.

84. It also emerged from the prosecution evidence that
conspiratorial meetings were also held on 06.01.1993 at Hotel
Parsian Darbar, Panvel which were attended by A-136, A-90,
D A-102, A-134 and Md. Dosa, (AA), middle of January, 1993
at Dubai attended by A-14 and Tiger Memon (AA) and Dawood
Ibrahim (AA) leading to the landing of arms and ammunitions
at Dighi Jetty and Shekhadi. These meetings formed the
genesis of the conspiracy and it was at these meetings that
E meeting of minds occurred and knowledge was obtained by the
co-conspirators and their intention was expressed to further the
cause of the said conspiracy. Since we have elaborately
discussed the constituents relating to the conspiracy, there is
no need to refer to the same in subsequent appeals before us.
F It is also evident that a common charge of conspiracy was
framed against all the accused persons. In view of the above,
we are satisfied that the prosecution has placed sufficient
acceptable materials to prove the charge of conspiracy beyond
reasonable doubt which we will analyse in the later part of our
G- judgment.
Confession

85. In this heading, we have to consider the confession
made by accused a·nd co-accused persons relied on by the
H prosecution. Before going into the acceptability or otherwise
YAKUBABDUL RAZAK MEMON v. STATE OF 165
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J:]

and merits of the claim made by both the parties relating to the A
confession of the accused and co-accused, it is useful to refer
to the relevant provisions of the Code as well as TADA.

86. Section 164 of the Code speaks about recording of
confession and statement which is as under:- B
"164. Recording of confessions and statements.-(1)
Any Metropolitan Magistrate or Judicial Magistrate may,
whether or not he has jurisdiction in the case, record any
confession or statement made to him in the course of an
investigation under this Chapter or under any other law for C
the time being in force, or at any, time afterwards before
the commencement of the inquiry or trial:

Provided that any confession or statement made under this
sub-section may also be recorded by audio-video o
electronic means in the presence of the advocate of the .
person accused of an offence:

Provided that no confession shall be recorded by a police
officer on whom any power of a Magistrate has been
conferred under any law for the time being in force. E

(2) The Magistrate shall, before recording any such
confession, explain to the person making it that he is not ·
bound to make a confession and that, if he does so, it may
be used as evidence against him; and the Magistrate shall F
not record any such confession unless, upon questioning
the person making it, he has reason to believe that it is
being, made voluntarily.

(3) If at any time before the confession is recorded, the
person appearing before the Magistrate states that he is G
not willing to make the confession, the Magistrate shall not
authorize the detention of such person in police custody.

(4) Any such confession shall be "recorded in the manner
provided in section 281 for recording the examination of H
166 SUPREME COURT REPORTS [2013] 15 S.C.R.

A an accused person and shall be signed by the person
making the confession; and the Magistrate shall make a
memorandum at the foot of such record to the following
effect.

"I have explained to (name) that he is not bound to make
B
a confession and that, if he does so, any confession he
may make may be used. as evidence against him and I
believe that this confession was voluntarily made. It was
taken in my presence and hearing, and was read over to
the person making it and admitted by him to be correct,
c and it contains a full and true account of the statement
made by him.

(Signed)

D A.B.

Magistrate".

(5) Any statement (other than a confession) made under
sub-section (1) shall be recorded in such manner
E hereinafter provided for the recording of evidence as is,
in the opinion of the Magistrate, best fitted to the
circumstances of the case; and the Magistrate shall have
power to administer oath to the person whose statement
is so recorded.
F
(6) The Magistrate recording a confession or statement
under this section shall forward it to the Magistrate by
whom the case is to be inquired into or tried."

87. Insofar as interpretation relating to Section 164 of the
G Code, particularly, recording of the same and procedures to be
adopted, this very Bench in Rabindra Kumar Pal@ Dara Singh
vs. Republic of India (2011) 2 SCC 490 after considering large
number of judgments on the issue laid down the following
principles:
H
YAKUBABDUL RAZAK MEMON v. STATE OF ·157
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
"64 (i) The provisions of Section 164 CrPC must be A
complied with not only in form, but in essence.

(ii) Before proceeding to record the confessional
statement, a searching enquiry must be made from the
accused as to the custody from which he was produced
B
and the treatment he had been receiving in such custody
in order to ensure that there is no scope for doubt of any
sort of extraneous influence proceeding from a source
interested in the prosecution.

(iii) A Magistrate should ask the accused as to why he C
wants to make a statement which surely shall go against
his interest in the trial.

(iv) The maker should be granted sufficient time for
reflection. D
(v) He should be assured of protection from any sort of
apprehended torture or pressure from the police in case
he declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable, E
more so, when such a confession is retracted, the
conviction cannot be based on such retracted judicial
confession.

(vii) Non-compliance with Section 164 CrPC goes to the
F
root of the Magistrate's jurisdiction to record the
confession and ~enders the confession unworthy of
credence.

(viii) During the time of reflection, the accused should be
completely out of police influence: The judicial officer, who G
is entrusted with the duty of recording confession, must
apply his judicial mind to ascertain and satisfy his
conscience that the statement of the accused is not on
account of any extraneous influence on him.
H
168 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (ix) At the time of recording the statement of the accused,
no police or police official shall be present in the open
court.

(x) Confession of a co-accused is a weak type of evidence.
B (xi) Usually the court requires some corroboration from the
confessional statement before convicting the accused
person on such a statement."

[See also Kalawati & Anr. vs. State of H.P. AIR 1953 SC
C 131; Dagdu & Ors. vs. State of Maharashtra (1977) 3 SCC
68; Oavendra Prasad Tiwari vs. State of UP. (1978) 4 SCC
474; Shivappa vs. Stae of Kamataka (1995) 2 SCC 76; Nalini
(supra) (1999) 5 sec 253; State of Maharashtra VS. Oamu
(2000) 6 SCC 269; Bhagwan Singh & Ors. vs. State of M.P.
D (2003) 3 SCC 21; Gurjinder Singh vs. State of Punjab (2011)
3 SCC 530; Surender Kofi vs. State of Uttar Pradesh & Ors.
(2011) 4 SCC 80; Kulvinder 'Singh & Anr. vs. State of
Haryana (2011) 5 SCC 258; and Inspector of Police, T.N. vs.
John David (2011) 5 SCC 509.]

E Law relating to Confessions under TADA

88. Similar provision is there in TADA, namely, Section 15
which reads as under:

15. Certain confessions made to police officers to be
F
taken into consideration.- (1) Nothwithstanding anything
in the Code or in the Indian Evidence Act. 1872, but
subject to the provisions of this section, a confession made
by a person before a police officer not lower in rank than
a Superintendent of Police and recorded by such police
G officer in writing or on any mechanical device like
cassettes, tapes or sound tracks from out of which sounds
or images can be reproduced, shall be admissible in the
trial of such person or [co-accused, abettor or conspirator]
for an offence under this Act or rules made thereunder:
H
YAKUBABDUL RAZAK MEMON v. STATE OF 169
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

Provided that co-accused, abettor or conspirator is A
charged and tried in the same case together with the
accused.

(2) The police officer shall, before recording any
confession under sub-section (1 ), explain to the person B
making it that he is not bound to make a confession and
that, if he does so, it may be used as evidence against
him and such police officer shall not record any such
confession unless upon questioning the person making it,
he has reason to believe that it is being made voluntarily.
c
The bracketed words '[or co-accused, abettor or
conspiractor]' and the proviso in Section 15(1) above were
added by way of an amendment on 22.05.1993. The
amendments to TADA dated 22.05.1993 were not only in
respect of Section 15(1) of TADA but also with respect to D
Section 21 of TADA (Presumption as to Offences under
Section 3). The un-amended Section 21 is reproduced as
under for ready reference:

"21. Presumption as to offences under Section 3. -
E
(1) In a prosecution for an offence under sub-section (1)
of Section 3, if it is proved -

(a) that the arms or explosives or any other s.ubstances
specified in Section 3 were recovered from the
possession of the accused and there is reason to believe F
that such arms or explosives or other substances of similar
nature, were used in the commission of such offence; or

(b) that by the evidence of an expert the fingerprints of the
accused were found at the site of the offence or on G
anything including arms and vehicles used in connection
with the commission of such offence; or

"(c) that a confession has been made by a co-
accused that the accused had committed the
offence; or H
170 SUPREME COURT REPORTS (2013] 15 S.C.R.

A (d) that the accused had made a confession of the
offence to any person other thar:i a police Qfficer

(deleted by Act 43 of 1993)"

The Designated Court shall presume, unless the contrary
B is proved, that the accused had committed such offence.

(2) In a prosecution for an offence under sub-section 3 of
Section 3, if it is proved that the accused rendered any
financial assistance to a person accused of, or reasonably
c suspected of, an offence under that section, the
Designated Court shall presume, unless the contrary is
proved, that such person has committed the offence under
that sub-section."

(emphasis supplied)
D
89. Admissibility of confession against co-accused under
Section 15 of TADA was considered in Nalini (supra). This
Court, while considering the provisions of Section 15 of TADA
and Rule 15 of the Terrorist and Disruptive Activities (P) Rules,
E 1987 (in short 'the Rules') held:

" ..... the confession of one accused as against a co-
accused to be substantive evidence against the latter, and
in the absence of proof to the contrary, the Designated
Court would have full power to base a conviction of the co-
F
accused upon the confession made by another accused"

This Court further held:

"In view of the above discussions, we hold the confessions
G of the accused in the present case to be voluntarily and
validly made and under Section 15 of TADA confession
of an accused is admissible against a co-accused as a
substantive evidence. Substantive evidence, however,
does not necessarily mean substantial evidence. It is the
H quality of evidence that matters. As to what value is to be
YAKUB ABDUL RAZAK MEMON v. STATE OF 171
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

attached to a confession will fall within the domain of A
appreciation of evidence. As a matter of prudence, the
Court may look for some corroboration if confession is to
be used against' a co-accused through that will again be
within the sphere of appraisal of evidence."
B
90. In Ahmed Hussein Vali Mohammed Saiyed & Anr.
vs. State of Gujarat (2009) 7 SCC 254, this Court held that it
is no more res integra that a confession recorded under
Section 15 is a substantive piece of evidence against the
accused and co-accused. However, in case of co-accused, as C
a rule of prudence, the court would look upon corroborative
evidence as well.

91. In Jayawant Oattatray Suryarao vs. State of
Mharashtra, (2001) 10 SCC 109, this Court considered in detail
the evidentiary value and admissibility of a confessional D
statement recorded under Section 15 of TADA and held that it
is a settled legal position that a confessional statement
recorded by a police officer is a substantive evidence and it
can be relied upon in the trial of such person or co-accused,
abettor or conspirator so long as the requirements of Section E
15 and TADA rules are complied with. It was observed:

"60 ..... Confessional statement before the police officer
under Section 15 of the TADA is substantive evidence and
it can be relied upon in the trial of such person or co-
F
accused, abettor or conspirator for an offence punishable
under the Act or the Rules. The police officer before
recording the confession has to observe the requirement
of sub-section (2) of Section 15. Irregularities here and
there would not make such confessional statement
inadmissible in evidence. If the legislature in its wisdom G
has provided after considering the situation prevailing in
the society that such confessional statement can be used
as evidence, it would not be just, reasonable and prudent
to water down the scheme of the Act on the assumption
that the said statement was recorded under duress or was H
172 SUPREME COURT REPORTS [2013] 15 S.C.R.

A not recorded truly by the officer concerned in whom faith
is reposed."

It was further held by this Court that minor irregularities do
not make the confessional statement inadmissible as
B substantive evidence and observed as under:

"50. In this view of settled legal position, confessional
statement is admissible in evidence and is substantive
evidence. It also could be relied upon for connecting the
co-accused with the crime. Minor irregularity would not
c vitiate its evidentiary value ........ "

92. In Ravinder Singh @ Bittu vs. State of Maharashtra,
(2002) 9 SCC 55, this Court, while considering the reliability
of a confession recorded under Section 15 of TADA against
o the maker, as well as the co-accused, held that after State vs.
Nalini, Kalpnath Rai vs. CBI does not reflect the correct position
of law. It was observed:

"13. In Kalpnath Rai v. State (through CBI) it was
observed that the confession made by one accused is not
E substantive evidence against a co-accused. It has only a
corroborative value. In the present case, we are, however,
primarily concerned with the confession made by the
maker i.e. the appellant himself. Besides this confession,
there is also a confession made by co-accused Nishan
F Singh which too implicates the appellant in commission of
the offence of the bomb blast in the train. The observations
made in Kalpnath Rai case were considered in State
through Supdt. of Police, CBI/SIT v. Nalini, a decision by
a three-Judge Bench. "It was held that the confession
G recorded under Section 15 of the TADA Ac.tis to be
considered as a substantive piece of evidence not
only against the maker of it but also against its co-
accused. In this view, the observations in Kalpnath
Rai case do not represent the correct position of
H law." ·
YAKUBABDUL RAZAK MEMON v. STATE OF 173
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]
It was further held that: A

17. It is thus well established that a voluntary and truthful
confessional statement recorded under Section 15 of the
TADA Act requires no corroboration. Here. we are
concerned primarily with the confessional statement of the B
maker. The weight to be attached to the truthful and
voluntary confession made by an accused under Section
15 of the TADA Act came to be considered again in a
recent three-Judge Bench decision in Devender Pal Singtr
v. State of NCT of Delhi. It was held in the majority opinion
that the confessional statement of the accused can be
c
relied upon for the purpose of conviction and no further
corroboration is necessary if it relates to the accused
himself.

18. There can be no doubt that a free and voluntary D
confession deserves the highest credit. It is presumed to
flow from the highest sense of guilt. Having examined the
record, we are satisfied that the confession made by the
appellant is voluntary and truthful and was recorded, as
already noticed, by due observance of all the safeguards E
provided under Section 15 and the appellant could be
convicted solely on the basis of his confession."

93. In Mohmed Amin vs. Central Bureau of Investigation,
(2008) 15 sec
49, it was observed:
F
"28. In Devender Pal Singh case majority of three-Judge
Bench made a reference to Gurdeep Singh case and
Nalini case and held (at SCC pp. 261-62, para 33) that
whenever an accused challenges the voluntary character
of his confession recorded under Section 15(1) of the Act, G
the initial burden is on the prosecution to prove that all the
conditions specified in that section read with Rule 15 of
the Rules have been complied with and once that is done,
it is for the accused to show and satisfy the court that the
confession was not made voluntarily. The Court further held H
174 SUPREME COURT REPORTS [2013] 15 S.C.R.

A that the confession of an accused can be relied upon for
the purpose of conviction and no further corroboration is
necessary if it relates to the accused himself. However, as
a matter of prudence the court may look for some
corroboration if confession is to be used against a co-
B accused though that will be again within the sphere of
appraisal of evidence.

29. In Jameel Ahmed case a two-Judge Bench after
discussing, considering and analysing several precedents
on the subject, including Devender Pal Singh case, culled
c out the following propositions: (Jameel Ahmed case, sec
pp. 689-90, para 35)

"(i) If the confessional statement is properly recorded,
satisfying the mandatory provision of Section 15 of the
D TADA Act and the Rules made thereunder, and if the same
is found by the court as having been made voluntarily and
truthfully then the said confession is sufficient to base a
conviction on the maker of the confession.

(ii) Whether such confession requires corroboration or not,
E
is a matter for the court considering such confession on
facts of each case.

(iii) In regard to the use of such confession as against a
co-accused, it has to be held that as a matter of caution,
F a general corroboration should be sought for but in cases
where the court is satisfied that the probative value of such
confession is such that it does not require corroboration
then it may base a conviction on the basis of such
confession of the co-accused without corroboration. But
G this is an exception to the general rule of requiring
corroboration when such confession is to be used against
a co-accused.

(iv) The nature of corroboration required both in regard to
the use of confession against the maker as also in regard
H
YAKUB ABDUL RAZAK ME MON v. STATE OF 17 5
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
to the use of the same against a co-accused is of a A
general nature, unless the court comes to the conclusion
that such corroboration should be on material facts also
because of the facts of a particular case. The degree of
corroboration so required is that which is necessary for a
prudent man to believe in the existence of facts mentioned B
in the confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the TADA
Rules which contemplates a confessional statement being
sent to the Chief Metropolitan Magistrate or the Chief C
Judicial Magistrate who, in turn, will have to send the same
to the Designated Court is not mandatory and is only
directory. However, the court considering the case of direct
transmission of the confessional statement to the
Designated Court should satisfy itself on facts of each case
whether such direct transmission of the confessional D
statement in the facts of the case creates any doubt as to
the genuineness of the said confessional statement."

30. In Abdulvahab Abdul Majid Shaikh case this Court
rejected the argument raised on behalf of the appellant that E
the confession made by him cannot be treated as voluntary
because the same had been retracted and observed:

"9 .... The police officer was empowered to record
the confession and in law such a confession is
F
made admissible under the provisions of the TADA
Act. The mere fact that A-9 Musakhan @ Babakhan
retracted subsequently is not a valid ground to
reject the confession. The crucial question is
whether at the time when the accused was giving
the statement he was subjected to coercion, threat G
or any undue influence or was offered any
inducement to give any confession. There is nothing
in the evidence to show that there was any coercion,
threat or any undue influence to the accused to
make the confession." H
176 SUPREME COURT REPORTS [2013] 15 S.C.R

A 31. The ratio of the abovenoted judgments is that if a
person accused of an offence under the Act makes a
confession before a police officer not below the rank of
Superintendent of Police and the same is recorded by the
officer concerned in writing or on any mechanical device
B like cassettes, tapes or sound tracks from out of which
sounds or images can be reproduced, then such
confession is admissible in the trial of the maker as also
the co-accused, abettor or conspirator not only for an
offence under the Act but also for offence(s) under other
c enactments, provided that the co-accused, abettor or
conspirator is charged and tried in the same case along
with the accused and the court is satisfied that
requirements of the Act and the Rules have been complied
with. Whether such confession requires corroboration
depends on the facts of the given case. If the court is
D
convinced that the probative value of the confession is such
that it does not require corroboration then the same can
be used for convicting the maker and/or the co-accused
u:ider the Act and/or the other enactments without
independent corroboration."
E
After considering the confessions of the accused in the
aforesaid case, it was held as under:

"81. Therefore, keeping in view the provisions of Section
F 15 of the Act as interpreted by this Court in Gurprit Singh
case, Nalini case, S.N. Dube case, Lal Singh case,
Oevender Pal Singh case and Jameel Ahmed case, we
hold that the appellants are guilty of offence under Section
302 read with Section 120-B IPC and no independent
corroboration is required for sustaining their conviction."
G
94. In Jameel Ahmed & Anr. vs. State of Rajasthan,
(2003) 9 SCC 673 this Court held that Section 30 of the
Evidence Act has no role to play in deciding the admissibil.ity
of a confession recorded under Section 15 of TADA. The Court
H held that:
YAKUB ABDUL RAZAK MEMON v. STATE O~ 177
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

"23 ..... it is relevant to note that Section 15 of the TADA A
Act by the use of non obstante clause has made
confession recorded under Section 15 admissible
notwithstanding anything contained in the Indian Evidence
Act or the Code of Criminal Procedure. It also specifically
provides that the confession so recorded shall be B
admissible in the .trial of a co-accused for offence
committed. and tried' in the same case together with the
accused who makes the confession. Apart from the plain
language of Section 15 vlhich excludes the application of
Section 30 of the Evidence Act, this Court has in many c
judgments in specific terms held that Section 30 of the
Evidence Act has no role to play when the court considers
the confession of an accused made under Section 15 of
the TADA Act either in regard to himself or in regard to
his co-accused."
D
95. In Ahmed Hussein Va/i (supra), this Court, while relying
upon Nalini (supra), held that if the confession made by an
accused is voluntary and true, then it is admissible against the
co-accused as a substantive piece of evidence, and that minor
and curable irregularities in the recording of the confession like E
omission in obtaining the certificate of competent office with
respect to confession do not affect the admissibility of the said
evidence. It was further observed:

"74 .... As far as the admissibility of the confessional F
statement of A-27 is concerned with regard to his co-
accused in this case, it is not vitiated because of the
amendment and it is rightly used as a major evidence for
the trial of his co-accused by the Designated Court. As this
confessional statement was made complying with all the G
procedural essentials as provided for by the TADA Act and
the Rules it can be a valid ground for the conviction when
corroborated with the confessional statement of the other
four accused, namely, A-1, A-2, A-3 and A-20 respectively
which have been made prior to the amendment of the
Act.. .. "
H
178 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 96. The amendment.. by Act 43 of 1993 which came into
force from 22.05.1993 deleted sub-clauses (c) and (d) to sub-
section (1) of Section 21. This Court considered the effect of
amendment in Nalini (supra), and observed as follows:

B "698: .... the effect of the said clauses was that in the event
of the co-accused making confession inculpating the
accused or in the event of the accused himself making an
extra-judicial confession to any person other than a police
officer the legal presumption that the accused had
committed such offence would arise."
c
In the event of un-amended TADA as it stood prior to
22.05.1993 were to apply, there would be a presumption of guilt
against the appellant pursuant to un-amended Section 21 since
confession of other co-accused would implicate the appellant
D for the offence of conspiracy. The amendment of 1993 did not
bring about any change as to the admissibility and applicability
of the confession of the co-accused.

Admissibility of Confessions recorded u/s 15 of TADA
E prior to the amendment
97. Learned senior counsel for A-1 submitted that as the
amendment of Section 15 of TADA under which the said
confessional statements were purported to have been recorded
was brought into effect from 22.05.1993, the said confessional
F statements could not be used to adjudge the appellant guilty
inasmuch as all the said confessional statements were recorded
prior to the date of amendment. He further stated that the said
confessional statements were obtained pursuant to prolonged
police custody of the said accused persons. therefore, the same
G cannot be said to be obtained voluntarily and further cannot be
said to be free from taint and were wholly unreliable. Learned
senior counsel has finally submitted that as the said
confessional statements were recorded prior to the date of
amendment of Section 15 of TADA. the same have to be
H

•
...
YAKUB ABDUL RAZAK MEMON v. STATE OF 179
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

tested against the touchstone of Section 30 of the Indian A
Evidence Act under the general law.

98. The prosecution heavily relied on the confessional
statements of co-accused persons, namely, Asgar Yusuf
Mukadam (A-10), Abdul Gani Ismail Turk (A-11), Mohammed
B
Rafiq @ Rafiq Madi Musa Biyariwala (A-46), Altaf Ali Mustaq
Ali Sayed (A-67) and Mulchand Sampatraj Shah @ Choksi (A-
97). It was submitted by senior counsel for A-1 that all the said
statements were recorded prior to the date of amendment of
TADA Act on 22.05.1993. Till the said amendment, the
statement of an accused person was admissible only against
c
him. However, the amended Section 15 of TADA made the
statement of an accused person admissible in evidence against
a co-accused, an abettor and a conspirator. It was submitted
by learned senior counsel that as the recording of statement
of A-10 was completed on 20.04.1993, A-11on18.04.1993, D
A-46 on 23.04.1993, A-67 on 19.04.1993 and A-97 on
19.05.1993 i.e., before the date on which the said Section 15
of TADA was amended and in the absence of express intention
making the said amendment retrospective, the same will have
to be taken as prospective, as a result whereof, the said E
statements cannot be used against the appellant and cannot
be the basis of adjudging him guilty. It was submitted by
learned senior counsel that law is well settled that an
amendment which is procedural in nature may be applied
retrospectively but an amendment which not only changes the F
procedure but also creates new rights and liabilities has to be
construed to be prospective in nature unless otherwise
provided either expressly or by necessary implication. It was •
further submitted by learned senior counsel that a procedural
amendment that imposes new duties or creates new disabilities G
or obligations in respect of transactions already accomplished
cannot be said to be retrospective in nature. It was urged by
learned senior counsel that as the said confessional
statements were recorded prior to the amendment of TADA,
i.e., on 22.05.1993 and the said Jmendment cannot be said H
180 SUPREME COURT REPORTS [2013] 15 S.C.R.

A to be retrospective in nature, it does not necessarily mean that
the same will have to be totally discarded rather they will have
to be appreciated in the light of Section 30 of the Evidence Act
and can be used to lend assurance to independent materials
collected by the investigating agency but cannot be made the
B sole basis of adjudging the appellant guilty as has purportedly
been done in the instant case.

99. With regard to the same, reliance was placed on the
decision of this Court in State of Rajasthan vs. Ajit Singh
(2008) 1 sec 601, which held as under in paras 15 and 16.
c
"15. It has accordingly been emphasised that the statement
made by the accused could be used one against the other.
Mr Sodhi has however pointed out that the decision in
Jameel Ahmed case had been rendered without noticing
D that the words in Section 15(1) of the Act (which have been
underlined above) that is "or co-accused, abettor or
conspirator" had been inserted in the Act in 1993 and as
such could not be retrospectively applied to an incident of
12-8-1991. He has also referred us to State (NCT of
E Delhi) v. Navjot Sandhu to submit that this issue had been
specifically raised and while noticing the addition made in
1993 it had been observed that a confessional statement
recorded under Section 15 would be sufficient to base a
conviction on the maker of the confession but on the other
proposition whether such a confession could be used
F
against a co-accused was another matter.

16. It is, therefore, clear that the Division Bench in Navjot
Sandhu case clearly repelled the contention raised by the
State counsel that a confession made by an accused could
G be used as against a co-accused ..... "

100. Reliance was also placed on the decision of this
Court in Ganesh Gogoi vs. State of Assam (2009) 7 SCC 404.
Paragraph Nos. 21 and 24 are relevant which read as under:
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 181
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J.]
"21. It appears that in the instant case the charge which A
was framed by the court against the appellant was under
Section 3(5) of the said Act. But such a charge could not
have been framed against him by the court inasmuch as
on the alleged date of occurrence i.e. in September 1991,
Section 3(5) of TADA was not brought on the statute. The B
framing of the charge was thus inherently defective .....

24 ..... It is clear from the perusal of Section 3 and its
interpretation in Hijendra Vishnu Thakur that the requisite
intention is the sine qua non of terrorist activity. That C
intention is totally missing· in this case. It is not there in the
charge and it has also not come in the evidence. Therefore,
both the framing of charges against the appellant under
Section 3(5) and his conviction under Section 3(2)(i) of the
said Act are totally bad in law."
D
101. In State (NCT of Delhi) vs. Navjot Sandhu @ Afsan
Guru (2005) 11 SCC 600, this Court held as under:

"49 ..... It is, however, the contention of the learned Senior
Counsel Shri Gopa/ Subramanium that Section 32(1) can E
be so construed as to include the admissibility of
confessions of the co-accused as well. The omission of
the words in PG..TA "or co-accused, abettor or conspirator"
following the expression "in the trial of such person" which
are the words contained in Section 15(1) of TADA does
not make material difference, according to him. It is his F
submission that the words "co-accused", etc. were
included by the 1993 Amendment of TADA by way of
abundant caution and not because the unamended
section of TADA did not cover the confession of the co-
accused. According to the learned Senior Counsel, the G
phrase "shall be admissible in the trial of such person"
does not restrict the admissibility only against the maker
of the confession. It extends to all those who are being
. tried jointly along with the maker of the confession
provided they are also affected by the confession. The H
182 SUPREME COURT REPORTS [2013] 15 S.C.R.

A learned Senior Counsel highlights the crucial words "in
the trial of such person" and argues that the confession
would not merely be admissible against the maker but
would be admissible in the trial of the maker which may
be a trial jointly with the other accused persons. Our
B attention has been drawn to the provisions of CrPC and·
POTA providing for a joint trial in which the accused could
be tried not only for the offences under POTA but also
for the offences under /PC. We find no difficulty in
accepting the proposition that there could be a joint trial
c and the expression "the trial of such person" may
encompass a trial in which the accused who made the
confession is tried jointly with the other accused. From
that, does it follow that the confession made by one
accused is equally admissible against others, in the
absence of specific words? The answer, in our view,
D
should be in the negative. On a plain reading of Section
32(1), the confession made by an accused before a
police officer shall be admissible against the maker of
the confession in the course of his trial. It may be a joint
trial along with some other accused; but, we cannot
E stretch the language of the section so as to bring the
confession of the co-accused within the fold of
admissibility. Such stretching of the language of law is
not at all warr;anted especially in the case of a law which
visits a person with serious penal consequences [vide the
F observations of Ahmadi, J. (as he then was) in Niranjan
Singh v. Jitendra; SCC at p. 86, which were cited with
approval in Kartar Singh case]. We would expect a more
explicit and transparent wording to be employed in the
section to rope in the confession of the co-accused within
G the net of admissibility on a par with the confession of the
maker. An evidentiary rule of such importance and grave
consequence to the accused could not have been
conveyed in a deficient language. It seems to us that a
conscious departure was made by the framers of POTA
H on a consideration of the pros and cons, by dropping the
YAKUBABDUL RAZAK MEMON v. STATE OF 183
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

words "co-accused", etc. These specific words A
consciously added to Section 15(1) by the 1993
Amendment of TADA so as to cover the confessions of
the co-accused would not have escaped the notice of
Parliament when POTA was enacted. Apparently,
Parliament in its wisdom would have thought that the law B
relating to confession of the co-accused under the
ordinary Jaw of evidence, should be allowed to have its
sway, taking a cue from the observations in Kartar Sin9h
case at para 255. The confession recorded by the police
officer was, therefore, allowed to be used against the c
maker of the confession without going further and
transposing the legal position that was obtained under
TADA. We cannot countenance the contention that the
words "co-accused", etc. were added in Section 15(1) of
TADA, ex majore cautela."
D
102. In Harjit Singh vs. State of Punjab (2011) 4 SCC
441, at para 14, it was held:

"14 ..... However, the submission is not acceptable as it is
a settled legal proposition that a penal provision providing E
for enhancing the sentence does not operate
retrospectively. This amendment, in fact, provides for a
procedure which may enhance the sentence. Thus, its
application would be violative of restrictions imposed by
Article 20 of the Constitution of India ..... " F
Learned senior counsel also placed reliance on the
following decisions, viz.,: Virtual Soft Systems Ltd. vs.
Commissioner of Income Tax, Delhi I (2007) 9 SCC 665,
Sanjay Dutt vs. State through CBI, Bombay (1994) 5 SCC
410, Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra G
& Ors. (1994) 4 SCC 602, Fairey vs. Southampton County
Council (1956) 2 ALL ER 843, The Colonial Sugar Refining
Co. Ltd. vs. Irving 1905 AC 369, In Re: Athlumney (1898) QB
547.
H
184 SUPREME COURT REPORTS [2013) 15 S.C.R.

A 103. The issue of admissibility of confessions recorded
under Section 15 of TADA prior to the amendment on
22.05.1993 has been dealt with in detail by the Designated
Judge in paras 1-8 of Part 3 of the final judgment. The issue of
admissibility against the co-accused of the confessions
B recorded prior to the amendment in Section 15 of TADA was
considered by this Court in Nalini (supra) wherein this Court
concluded that confessions recorded under Section 15 of
TADA are substantive evidence and are accordingly admissible
not only against the maker but also against the co-accused
c charged and tried in the same case together with the accused.
It was further held:

'416. The term "admissible" under Section 15 has to be
given a meaning. When it says that confession is
admissible against a co-accused' it can only mean that it
D is substantive evidence against him as well as against the
maker of the confession."

It was further observed:

"429 ..... Confession of the accused is admissible with the
E
same force in its application to the co-accused who is tried
in the same case. It is primary evidence and not
corroborative."

104. We are in entire agreement with the same.
F Accordingly, we hold that the confession of the co-accused,
namely, A-10, A-11, A-46, A-67 and A-97 are admissible as
primary and substantive evidence against the appellant (A-1)
notwithstanding the amendment by Act 43 of 1993.

G 105. To sum up, it can easily be inferred that the position
of law on the evidentiary value of confession is as under:-

(i) If the confessional statement is properly recorded
satisfying the mandatory provision of Section 15 of
TADA and the Rules made thereunder. and if the
• H same is found by the court as having been made

•
YAKUBABDUL RAZAK MEMON v. STATE OF 1-SS
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
voluntarily and truthfully then the said confession is A
sufficient to base conviction on the maker of the
confession.

(ii) Whether such confession requires corroboration or
not, is a matter for the court to consider on the basis B
of the facts of each case.

(iii) With regard to the use of such confession as
against a co-accused, it has to be held that as a
matter of caution, a general corroboration should be
sought for but in cases where the court is satisfied c
that the probative value of such confession is such
that it does not require corroboration then it may
base conviction on the basis of such confession of
the co-accused without corroboration. But this is an
exception to the general rule of requiring D
corroboration when such confession is to be used
against a co-accused.

(iv) The nature of corroboration required both in regard
to the use of confession against the maker as also
E
in regard to tl'le use of the same against a co-
accused is of a general nature, unless the court
comes to the conclusion that such corroboration
should be on material facts also because of the
facts of a particular case. The degree of
F
corroboration so required is that which is necessary
for a prudent man to believe in the existence of facts
mentioned in the confessional statement.

(v) The requirement of sub-rule (5) of Rule 15 of the
Rules which contemplates a confessional statement G
being sent to the Chief Metropolitan Magistrate or
the Chief Judicial Magistrate who, in turn, will have
to send the same to the Designated Court is not
mandatory and is only directory. However, the court
considering the case of direct transmission of the H
186 SUPREME COURT REPORTS [2013] 15 S.C.R.

A confessional statement to the Designated Court
should satisfy itself on the facts of each case
whether such direct transmission of the
confessional statement creates any doubt as to the
genuineness of the said confessional statement.
B
Since we have elaborately discussed the contention raised
by learned senior counsel relating to the admissibility or
otherwise of the confessional statements, there is no need to
refer to the same in subsequent appeals before us.
c 106. In light of the above principles, let us discuss the
confessions made by the co-accused persons.

(i) Confessional statement of Asgar Yusuf Mukadam (A-
10)
D
Confessional statement of A-10 (Exh. Nos. 858 and 858A)
was recorded by Mr. K.L. Bishnoi (PW-193), the then DCP
which referred to A-1 as under:

(1) "A-1 is the younger brother of Tiger Memon.
E
(2) When A-10 had telephbned at Tiger's residence,
Yakub Memon (A-1) attended the call and asked
him to come and meet him. On 10/11th February,
at his residence, A-1 handed over 3 tickets for
Dubai and 3 passports to A-1 O asking him to pick
F
up Parvez Qureshi (A-100), Farooq (A-16) and
Salim from Midland Hotel, handover the said tickets
and passports to them and drop at the airport by
taxi which was duly performed by the confessing
accused. The next day Tiger asked him to come
G and meet him. When he went to see Tiger, he was
ready to go to Airport. At the airport, Tiger told him
that he should stay in touch with A-1 and in case of
requirement of money he should get the money from
Choksi and give it to him.
H
•

YAKUBABDUL RAZAK MEMON v. STATE OF 187
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J ]

(3) On 13th February, he directed the confessing A
accused to collect Rs. 1 crore from Choksi for him
which was done by the confessing accused with the
help of co-accused Gani (A-11), Parvez (A-12),
Mohd. Hussain, Salim and Anwar (AA).
B
(4) On 17-18th February, Yakub Memon directed the
accused to remain with Rafiq Madi (A-46). Next day
the accused and Rafiq Madi picked up lrfan
Chougule (Absconding) from Mahim and
Shahnawaz and his companion from Bandra C
Reclamation and dropped them at the airport.

(5) On return to Tiger's residence, Yakub directed the
confessing accused to talk to Tiger on phone
(during the telephonic talks Tiger pulled up the
deponent accused for having not contacted him on D
phone).

(6) On 9th March, he directed the confessing accused
to transfer Rs. 25 lakhs by transferring the same
from Tiger's account to lrani's account and transfer
E
Rs. 10 lakhs to the Ohalia's account which was
done by the accused by contacting Choksi (A-97)
on phone.

(7) In the morning, on 10th March, he again' asked the
confessing accused to transfer Rs. 21 lakhs from F
Tiger's account to lrani's account which was duly got
done by the deponent accused by instructing
Choksi (A-97) on phone accordingly."

(ii) Confessional Statement of Abdul Gani Ismail Turk (A- G
11)

Confessional statement of A-11 (Exh. Nos. 818 and 818A)
was recorded by Mr. P.K. Jain (PW-189) which stated as under:

(1) "On 27/28_th Jan, A-1 was present at Al-Hussaini H
188 SUPREME COURT REPORTS [2013] 15 S.C.R.

A building with co-accused Tiger, Anwar, (AA), Rafiq
Madi (A-46), lmtiyaz (A-15), Parvez, Rahim (A-52)
when the said co-accused left for Mhasla after
taking the meals.

(2) On 07 .03.1993, he was present in Al-Hussaini
B
building with Tiger, Shafi, Essa (A-3), Rahim (A-7)
wife of A-1, A.R. Memon (A-5) since deceased,
father of A-1 and Hanifa Memon (A-6), mother of
A-1, when co-accused Gani visited Al-Hussaini."

C (iii) Confessional Statement of Md. Rafiq Moosa
Biyariwala (A-46)

Confessional statement of A-46 (Exh. Nos. 867 and 867 A)
was recorded by Mr. K.L. Bishnoi (PW-193) which referred the
o appellant as follows:

(1) "A-1 is the younger brother of Tiger Memon.

(2) He used to drive Tiger's blue Maruti-800 for
attending business activities.
E
(3) On 8/9th February, he handed over Rs. 50,000/- to
the Rafiq (A-46) which were made over to Altaf
Passportwala by the latter.

(4) On 10/11th February, he got the VIP suitcases
F taken out of the jeep in his garage through Anwar
and he took the same to his house upstairs.

(5) On 13th February, he got the jeep after repairs
brought to Meharbux's residence through the
G accused and Anwar.

(6) Between 14/15th February, he got the brown
coloured round objects from the secret cavities of
the jeep filled into three VIP suitcases which he got
transported away from his garage by red Maruti
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 189
MAHARASHTRA, THR. CBI , BOMBAY [P'. SATHASIVAM, J.)

Van by Altaf (A-67). A

(7) Next day, he handed over Rs. 62,000/- or 63,000/
- to the accused te be given to Altaf.

(8) On 17th February, he handed over 5 passports
and tickets to Anwar for Yeda Yakub and others for B
their departure to Dubai.

(9) Next day, on his directions, the accused dropped
lrfan Chougule, Asgar and Shahnawaz at Airport
for their departure to Dubai. c
(10) On 14th, he was given Rs. 4 lakhs by the accused
after collecting the said amount from Choksi (A-
97)."

(iv) Confessional Statement of Altaf Ali Mustaq Ali D
Sayeed (A-67)

Confessional statement of A-67 (Exh. Nos. 819 and
819A) was recorded which referred the appellant as under:

( 1) "In the presence of Yakub Memon, Amjad (A-68) E
told Altaf that the goods belonging to Yakub are to
be shifted to some other places as these got burnt
in the riots.

(2) Yakub Memon asked accused Altaf Ali about F
whether the bags had been delivered to him by
Amjad.

(3) Yakub Memon arranged for tickets for some co-
accused through accused Altaf Ali by sending
G
money and passport through accused Rafiq Madi.

(4) Yakub Memon sent 3 bags through Rafiq Madi to
accused Altaf Ali for safe keeping. The bags
contained arms/ammunition.
H
190 SUPREME COURT REPORTS (2013] 15 S.C.R.

A (5) Yakub instructed Altaf Ali over phone for sending
the bags to Al-Hussaini Building i.e., residence of
Yakub'Memon and his family members.

(6) Earlier, Yakub Memon had asked Altaf Ali to keep
B the bags since he was giving so much business.
When Altaf Ali told Yakub that he may be
implicated, Yakub replied that he need not worry."

(v) Confessional Statement of Mulchand Sampatraj Shah
@ Choksi (A-97)
c
In his confessional statement, he narrated the role of A-1
as follows:

"It was emerged that Tiger Memon had a hawala account
with him and in the said account, which was opened in
D
November, 1992, a sum of Rs. 1,89,78,000/- was
deposited by A-26 Raju Laxmichand Jain @ Raju Kodi
from November, 1992 to December, 1992. A-26, in his
confessional statement, admitted having deposited the
said amount in the account of Tiger Memon with A-97. A-
E 10 Asgar Yusuf Mukadam has also stated in his
confession about handling some transaction from the said
account."

107. In pursuance of the said disclosure, PW-513, in the
F presence of Pandharinath Ganpat Hanse (PW-70) recovered
two chits i.e., Article Nos. 247 and 247-A from a diary in ·a
pouch (Art. 248) vide panchnama Exh. No. 373 which was
found in the cupboard of Room No. 604, 6th Floor, Rajender
Vihar, Guilder Lane, Grant Road, Bombay. The writings
G mentioned on the said two chits corroborate the figures given
by A-97 in his confessional statement. The amounts depos'1ted/
withdrawn on the said two chits if seen in light of confessional
statements of co-accused, i.e., A-10, A-26 and A-46 were the
amounts deposited/withdrawn by accused Tiger Memon
H through his men on various dates.
YAKUBABDUL RAZAK MEMON v. STATE OF 191
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J ]
108. A perusal of the above recitals in the form of A
confessional statements clearly establish the fact that Tiger had
an account with A-97 in which various amounts totaling to Rs.
161.48 lakhs were deposited by A-26 at the behest of Tiger
Memon (AA) and which was also being controlled by A-1.
B
109. On 12.02.1993, at the time of departure to Dubai,
Tiger Memon told A-10 that he should remain in touch with A-
1 and in case of need of money to A-1, arrange the same from
A-97. Tiger Memon further asked him to bring Rs. 5 lakhs from
A-97 and to pay the same to Sharif Abdul Gafoor Parkar @
Dadabhai (A-17) on account of landing charges. Accordingly,
c
A-10 alongwith Parvez Nazir Ahmed Shaikh (A-12) brought the
money from A-97 and paid it to A-17 at his residence. From
the above, it can safely be inferred that the account maintained
with A-97 by Tiger Memon was being used for meeting the
expenses incurred for achieving the objects of criminal D
conspiracy and A-1 was handling it through other co-
conspirators. Confessional statements of A-10, A-11 and A-46
clearly reveal that the relevant role of collecting money was
played by A-10 at the behest of A-1. In the said context, the
material contained in the confession of A-10 that Tiger Memon E
while leaving for Dubai had told him to remain in touch with A-
1 and having further said that in the event of A-1 requiring any
money then he should collect the same from A-97 clearly
reveals that A-1 himself having not collected the money from
A-97 but he was handling it through other conspirators. The said F
matter is further clear from the confession of A-10 which reveals
that when A-1 told him to bring an amount of Rs. 1 crore from
A-97, the manner in which the said amount was brought by A-
10 by going to the house of A-97 along with A-11, A-12 and
two more persons. The further materials in the confession of G
A-10 regarding the transaction of Rs. 25 lakhs and Rs. 1O lakhs
effected on 09.03.1993 clearly reveals that the account of Tiger
Memon was operated by A-1 through A-10. The same is also
clear after considering the manner in which the transaction had
taken place on 10.03.1993 by A-1.
H
192 SUPREME COURT REPORTS (2013] 15 S.C.R.

A 110. It has come in the confessional statement of A-67 that
A-1 had asked him to book air-tickets for Dubai, and he agreed
to do the same. It has also come in the confession of A-67 that
he had booked around 10-12 tickets for Dubai at the instance
of A-1 and A-46 used to bring Nie money for the same. From
B the above, it is evident that A-67 agreed to book the tickets
for Dubai at the instance of A-1 and for which A-46 used to
bring the cash. Further, from a perusal of the confessional
statement of A-46, it is clear that on 8/9th February, A-1 gave
him Rs. 50,000/- for giving it to A-67 and he accordingly
c delivered the same to him. It has also come in the confession
of A-46 that on 14/15 February, he, alongwith A-10 brought Rs.
4 lakhs from A-97 and gave the same to A-1. On 14/15
February, he was given Rs. 62-63 thousand by A-1 to be
delivered to A-67 which he, accordingly, delivered.

D 111. From the above recital of th13 confessional statement
of A-46, it is evidently clear that out of Rs. 4 lakhs i.e., the
amount which was brought by A-46 and A-10 from A-97 at the
instance of A-1, Rs. 62-63 thousand were given to A-67 by A-
46. It is also clear from the confession of A-67 that it was A-46
E who used to bring the cash for the tickets he was booking for
A-1 for Dubai. Asif Sultan Devji (PW-341) and Massey
Fernandes (PW-311) have deposed about the booking of 12
tickets and 1 ticket respectively at the instance of A-67. A-67,
in his 313 statement had admitted having booked the tickets.
F for Dubai through the said witnesses.

112. Md. Usmah Ahmed Jan Khan (PW-2), the approver,
(about acceptability or reliability, we shall consider it in a
separate heading) categorically stated that A-1, at the instance
G of Tiger Memon, handed over air-tickets to Javed which were
of Parvez Mohmmed Parvez Zulfikar Qureshi (A-100), Salim
Rahim Shaikh (A-52), Md. Farooq Md. Yusuf Pawale (A-16),
Zakir Hussain Noor Mohammed Shaikh (A-32), Salim Mujahid
besides PW-2. It has also come in the confession of A-10 that
on 09.03.1993, at the instance of A-1, A-10 got transferred Rs.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 193
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
25 lakhs from Tiger's account with A-97 to lrani's account and A
Rs. 1O lakhs to Ohalia's account. Even on 10.03.1993, Rs. 21
lakhs were transferred to the account of Irani from Tiger's
account at the instance of A-1 by A-10.

-n 3. The timing of these transfers, if seen in the context B
of activities being carried out contemporaneously, was
transferred for meeting the expenses for achieving the objects
of conspiracy, to meet the expenses incurred for ticketing of
the co-conspirators and also to meet the expenses to be
incurred during that period. As far as Tejarath International is C
concerned, it has come in the evidence of S.P. Udyawar (PW-
441) that at the instance of A-1, in January/March, 1993, he
booked tickets for Dubai for the following persons, viz., Dawood
. '
@ Dawood Taklya Md. Phanse@ Phanasmiyan (A114) Abdul
Razak Memon (A-5), Hanifa Abdul Razak Memon (A-6), Yakub
Abdul Razak Memon (A-1), Rahin Yakub Memon (A-7), Essa D
@ Anjum Abdul Razak Memon (A-3), Yusuf Abdul Razak
Memon (A-4) and Tiger Memon (AA) vide Exh. 1421. PW-441
had categorically stated that the tickets booked by him were
collected by a person from Tejarath International sent by A-1.
Besides this, Exh. 1192 shows booking of tickets for A-49, A- E
98, A-94, A-39 and A-14. Exh. 1192 is a statement of Tejarath
International maintained by the firm of PW-441. The
confessional statement of A-67 to the effect that in the second
week of February, A-1 asked him to book tickets for Dubai,
which he agreed to and he also admitted having booked 15- F
16 tickets for A-1 to Dubai in February 1993 and received
money from A-46 for the same in the second week of February
1993 itself, the time when the co-accused went to Dubai and
then for training to Pakistan. The confessional statement of A-
46 also shows payment of a sum of Rs. 50,000/- on 8/9th G
February and Rs. 62-63,000/- on'14/15th February by A-1 to
be given to A-67. The· admission of A-67 in 313 statement is
also evident from the booking of tickets to Dubai through PW-
341, who was running a travel agency by the name of Mis ABC
H
194 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Travels and Massey Fernandes (PW-311) was working with M/
s Hans Air Services Pvt. Ltd. PW-341 deposed about booking
12 tickets for A-67 and the bills which were marked as under:

"Exh. 1246 - For booking Dubai on 11th February, 1993
B for A-100, A-32, Javed Chikna and Mohd. Tainur
Phansopkar.

Exh. 1247 for 12th February, 1993, for Javed Dawood
Tailor

c Exh. 1248 Emirates Flight for 17th February, for Yeda
Yakub, Anwar Theba, Bashir Ahmed Khan, Nasir Dhakla
(A-64), Gui Mohammed (A-77) and Abdul Ahmed.

D
Exh. 1243 on 11.02.1993 Shahnawaz Abdul Kadar
Qureshi (A-29) and lrfan Chougule." •
114. A-10, in his confession has stated that on 10/11 -
February, A-1 gave three tickets and 3 passports and asked
him to drop A-100 and A-16 to the Airport. It is pertinent to note
here that Exh. 1246 shows the booking of A-100 for Dubai on
E 1) .02.1993. The said booking was done at the behest of A-
67 who did it at the instance of A-1. A-46, in his confession
stated that Javed Chickna (AA) accompanied Tiger to Dubai
on 12.02.1993. Exh. 1247 shows the booking of Javed
Dawood Tailor to Dubai for 12.02.1993 by Emirates.
F Immigration Officer (PW-205) stated that Javed Dawood Tailor
left India by Emirates on 12.02.1993. Further, in the
confessional statement of A-46 it has come that on
17.02.1993, A-1 called Anwar Theba (AA) and handed over 5
passports and 5 tickets. Anwar asked A-46 to drop him and
G others at the Airport for going to Dubai. Accordingly, he
dropped Bashir, Gui Mohammed (A-77), Anwar Theba and
Yeda Yakub. He also saw A-64 at the Airport and all five of them
left for Dubai.-Exh. 1248 shows the booking of these persons
for Dubai on 17.02.1993 by Emirates. Thus, this booking was
H
YAKUBABDUL RAZAK MEMON v. STATE OF 195
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

done by A-67 at the instance of A-1. Immigration Officer (PW- A
221) stated that the above mentioned persons left by Emirates
Airlines. It has come in the confession of A-46 that A-1 had
given him 3 passports and 3 tickets for dropping 3 persons at
the Airport. Accordingly, A-46 and A-10 dropped A-29, lrfan
Chougule and one more person at the Airport. Confessional B
statements of A-36 and A-29 show that he was the person who
traveled with them. A-10 in his confession corroborates with A-
46. Exh. 1243 shows the booking of A-29 and lrfan Chougule
by Air India for going to Dubai. PW-197 stated that lrfan
Chougule left by Air India on 18.02.1993. Passport of A-29 (Exh. c
1731) shows his departure on 18.02.1993. From the above, it
is clear that the tickets booked by A-67 at the behest of A-1
were for the co-accused persons mentioned above, who first
went to Dubai and, subsequently, to Pakistan for weapons
training as revealed in their confessional statements and
D
evidence of PW-2. The above confessional statements by the
co-accused/conspirators would show that A-1 was playing a
key role in furtherance of the above said conspiracy.

115. The funds of Tejarath International were also used for
achieving the object of criminal conspiracy. It has come in the E
evidence of PW-441 that at the instance of A-1, he booked
tickets for Dubai in January/March, 1993 as under:

"~xh. -1421A-1418th January, 1993 (Dawood Phanse)

Exh. - 1422 A-5, A-6, A-4
F

Exh. - 1423 A-7, A-3, A-1 March 1993

Exh. - 1424 Tiger Memon"

PW-441 had categorically stated that the tickets booked G
by him were collected by a person from Tejarath International
sent by A-1. Besides this, Exh. 1192 shows booking of tickets
for A-49, A-98, A-94, A-39 and A-14 which is a statement of
Tejarath International maintained by the firm of PW-441. From
H
196 SUPREME COURT REPORTS [2013] 15 S.C.R.

A the evidence of PW-441, it is clear that A-1 was managing the
affairs of Tejarath International and had booked tickets on its
account with the firm of PW-441. In light of the evidence of PW-
441 about the reservation card of the firm and booking of tickets
by A-1 in the account of Tejarath International coupled with the
B confession of the co-accused, viz., A-14, A-94, A-49 and A-39
regarding their visits to Dubai during the relevant time, it is clear
that A-1 had booked air tickets for the co-conspirators.

116. Vijayanti B. Dembla (PW-313) from East West Travels
had deposed that he had been introduced by Samir Hingora
C (A-53) to Tiger Memon and was organizing tickets for Tiger
since March 1992. He named Nitin K. More (PW-310), who
used to collect tickets on behalf of Tiger Memon. The
prosecution has examined PW-310 and shows that it was A-1
who was booking tickets and would send his employee to
D collect the same from East West Travels. He is a convincing
witness for the fact that A-1 's firm office.was burnt in the riots
and that he had started working from his residence at Al
Hussaini Building. It is relevant to mention that practically there
was no cross examination of the witness.
E
117. It has come in evidence (confessional statements of
A-67 and A-46) that 4 suitcases were kept in the jeep which
was parked in the residential premises of Amhjad Ali Meharbax
(A-68-since discharged) by A-11 and Anwar Theba (AA) at the
F instance of A-1. Subsequently, A-67 took away the suitcases
and kept them in his office at the instance of A-1. Later, A-46
brought three more suitcases and kept them at the office of A-
67. Out of the total seven suitcases, A-67 delievered 5
suitcases to A-1 at Al-Hussaini Building. Thus, two suitcases
G remained in his possession. It has further been disclosed by
A-67 that due to the involvement of A-1 in the matter, he kept
the said suitcases at the residence of Mohammed Hanif (PW-
282).

118. After the arrest of A-67, he made a disclosure under
H
YAKUBABDUL RAZAKMEMON v. STATE OF 197
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

Section 27 of the Evidence Act and led the Police and Pancha A
(PW-37) to the residence of Mohammed Hanif from where the
following articles were recovered and taken into possession
vide Panchnama Exh. 109:

(a) One suitcase (Article 42) was found containing 65 B
handgrenades and 100 electronic detonators.

(b) One VIP suitcase (Article 43) was found containing 40
hand grenades and 50 electronic detonators. During the
examination of Akbar Khan Abu Sama Khan (dead) (PW-37)
in the Court only 85 handgrenades were found in the two C
suitcases which were marked as Article 44 to 84 and one hand
grenade which was sent to the FSL was marked as Article 45.

(c) The incharge of the store room of CID, Crime Branch,
P.I. Pargunde has submitted the details of disposal in respect o
of remaining 20 defused hand grenades to the Court. The
recovered articles were forwarded to the FSL and its report
(Exh. 2439) proves the nature of article recovered.

(d) Out of 150 electronic detonators, one is marked Article
46 (one) to (three) and the remaining 149 were forwarded to E
the Bomb Detection and Disposal Squad (BODS) for defusal.

119. It is clear from the confession of A-67 that 4 bags
were given to him at the first occasion which were containing
ammunitions etc., by discharged accused Amjad Ali Meharbax F
at the instance of A-1. On the second occasion, A-46 had
delivered 3 more suitcases to A-67 and on being asked, A-46
stated that the suitcases were containing round bombs etc.
Thus, A-67, in all had received 7 bags from A-1 which contained
arms/ammunitions etc. A-67, thereafter, returned 5 bags to A- G
1 that included 4 bags which were received on the first
occasion and one of the three bags received on the second
occasion. Thus in all, there remained two bags with A-67 which
were recovered by PW-506. These facts were stated by A-67
in his confessional statement which has since been exhibited
H
198 SUPREME COURT REPORTS [2013] 15 S.C.R.

A and read in evidence as substantive evidence. Moreover, the
confessional statement of A-67 corroborated the evidence of
PW-37, PW-506 and PW-282. A-46, in his confessional
statement, also stated about the delivery of 3 suitcases to A-
67 by A-1, but there is a small discrepancy about the manner
B of receipt of 3 suitcases by A-67 wherein he stated that A-46
had delivered 3 suitcases to A-67. The manner of delivery of 3
suitcases is not of much importance, as it has clearly come in
the confession of A-67 in respect of delivery of bags at the
instance of A-1 and the subsequent recovery of two suitcases
c at the instance of A-67 which contained 105 hand grenades
and 150 electronic detonators.

120. In the confessional statement of A-46, it was
mentioned that on 13.02.1993 he alongwith Anwar Theba (AA)
went to the residence of Amjad Ali Meharbax (since
D discharged). Accordingly, both of them brought the said jeep
to the Al-Hussaini Building and Anwar Theba went up and
handed over the key of the jeep to A-1. On 14/15.02.1993,
when A-46 was present at Al-Hussaini Building alongwith Anwar
Theba (AA), A-1 called Anwar upstairs and after sometime
E Anwar came down alongwith three suitcases. He also brought
the key of a jeep kept inside the garage and Anwar Theba
asked A-46 to unscrew the bolts of the floor of the jeep. A-46
accordingly unscrewed the bolts of the floor and when he was
about to lift the floor, he was asked by A-1 to go to the office
F of A-67. He immediately went to the office of A-67 and when
he found that A-67 was not there, he informed A-1 accordingly.
At that time, A-46 saw that Anwar Theba was filling something
in the said suitcases which was of light green colour and round
in shape. At that time, A-1 asked A-46 to stand outside the
G garage and watch the movements of the people. He was
apparently sent outside by A-1 so that he could not see the
contents which were being filled in the suitcases. He was again
sent by A-1 to see whether A-67 was available. Accordingly,
he went to the office of A-67 and as A-67 was not present, he
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 199
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASlVAM, J]
came back to Al-Hussaini. At that time, he saw A-67 keeping A
the said suitcases in his ~.1aruti Van. In the light of the evidence
on record, it is clear that A-1 was in possession of
handgrenades and electronic detonators which were concealed
in the jeep and which were delivered to A-67 in three suitcases
by A-1 through A-46. B

121. PW-87, who was the driver working for Abd: I Razak
Suleman Memon (A-5), has deposed that A-5 was having four
vechicles, namely, red Maruti Van, blue Maruti Car, white
coloured Maruti Car and one red coloured Maruti 1000. He also
stated that A-5 was staying at 5/6th floor of Al-Hussaini Building C
alongwith his wife, daughter-in-laws and sons, namely, Essa @
Anjum Abdul Razak Memon (Anjumbhai) (A-3), Yusufbhai (A-
4) and Ayubbhai (AA). He also stated about taking his blue
coloured Maruti car to a service station opposite to Paradise
Talkies on 2-3 occasions. He also identified his signatures (Exh. D
Nos. 444. and 445) on the bills (Exh. Nos. 444A and 445A)
respectively. These signatures were affected by him at the time
of taking the car for servicing. The said witness did not fully
support the prosecution and was declared hostile.
E
122. PW-630, who was the Manager of Hind Automobile
and Co., deposed that he had issued Exh. Nos. 444A and 445A
to the Driver who brought the Maruti Car bearing No. MP-09-
H-0672 for servicing on 03.01. 1993 and 23.02. 1993
respectively. He also stated that he had written the name of the F
owner of the car and the car number on the said bills on the
basis of the information given by the Driver who brought the car
for servicing on the said two occasions. It is pertinent to note
here that the driver who brought the vehicle for servicing was
PW-87 as evident from his signatures on Exh .. Nos. 444 and G
445. Exh. Nos. 444A and 445A shows that A-1 was mentioned
as the owner of Vehicle No. MP-09-H-0672.

123. It has been proved that the said Maruti Car of blue
colour was planted at Bombay Stock Exchange which exploded
at 03:30 hrs killing 84 persons, injuring 217 persons and H
200 SUPREME COURT REPORTS [2013] 15 S.C.R.

A causing loss to property worth rupees 5 crores. The number
plate (Article 227) bearing No. MP-09-H-0672 was seized from
the place of occurrence by Vipul Manubhai Vyas, Deputy
Project Manager, Bombay Stock Exchange (PW-86). Engine
No. F/8/BIN703676 and Chassis No. 481528 was seized by
B PW-86 and PW-370 respectively. It is also evident that the
Maruti 800 Car bearing No. MP-09-H-0672 was purchased by
Shafi Zariwala (AA) in the beginning of 1992 through Suleman
Mohammed Lakdawala (PW-365), Shakeel S. Hasan (PW-
366), Roopak Madanlal Malik (PW-628), Atmaram
c Ramchandra (PW-642), Rajkumar Kamal Chand Jain (PW-
649) and this Maruti Car was used to blast the Bombay Stock
Exchange Building. Ultimately, this car was used by Tiger
Memon and A-1 for explosion. This is evident from the evidence
of PWs 87 and 630. It also finds mention in the confessional
D statement of A-46 that A-1 was using a blue coloured Maruti
Car.

124. From the above, the following conduct of the appellant
(A-1) alongwith the co-conspirator family members may be
relevant:-
E
(a) At the time of blast, they all were living together at
Dubai.

(b) After the blasts, the Memons' fled to Pakistan from
Dubai.
F
(c) Their conduct of living together after fleeing from
Bombay and not providing information about these blasts to the
concerned authorities at Indian Embassy prove that the
members of the Memon family were also co-conspirators in
G committing the said bomb blasts. With all the activities going
on at the Al-Hussaini Building, on the eve of blasts, the
members of Memon family were aware of the activities.

(d) They never disclosed the connection of Tiger Memon
H with the blasts to anybody.
YAKUBABDUL RAZAK MEMON v. STATE OF 201
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]

(e) In Pakistan, they had obtained Pakistani Passports and A
National Identity Cards in assumed names.

(f) They had acquired properties, started a business in the
name and style of M/s Home Land Builders, acquired fictitious
qualification certificates, driving licenses etc. to lead a B
comfortable life all of which will show that they have chosen a
. comfortable life in Pakistan after causing blasts in Bombay and
were determined not to return to India in their original identity.

(g) They failed to appear before the Court inspite of issuing
of proclamation and the same being widely published. C

(h) Instead of surrendering, they traveled to Bangkok and
Singapore from Karachi for holidays in assumed names on
Pakistani Passports during April, 1993.
D
(i) They had not taken any steps to surrender before the
Indian authorities or Thailand Authorities on their arrival to
Bangkok and Singapore.

U) Nor they had made any attempt to return to India.
E
(k) Large amount of jewellery and cash was abandoned
by the Memons' at the Al-Hussaini Building when they hurriedly
left Bombay just before the blasts.

Further, recovery from the walls/portions of the lift at the
Al-Hussaini building of ROX remanants on 22.03.1993 F
establishes the case of the prosecution of the activities being
carried out by the appellant and the co-conspirators at the said
place.

125. Apart from the above confessional statements and G
evidence, nine Indian passports and seven Pakistani passports
belonging to the members of Memon's family including the
appellant which were found with A-1 were also seized by H.C.
Singh (PW-474), SP-STF, Delhi, CBI from his person at the
H
202 SUPREME COURT REPORTS [2013] 15 S.C.R.

A time of arrest. A series of other. documents were also seized
from the appellant like a Pakistani Driving Licence, Pakistani
Identity Card, Chits having numbers of Karachi residents,
Address Book, Pakistani Computer Education Certificate and
Pakistani National Tax Number Certificate in favour of Home
B Land Builders. The evidence of Kanjira Parambil (PW-473),
Consulate General of India at Karachi further established that
all the Pakistani Passports (13 in number) including the one
seized from A-1 are passports issued genuinely by the Pakistan
Government. On perusal of the entries in the passports seized
c from the appellant (A-1), the following facts emerge:

(a) Indian Passport No. M-307804 in respect of A-1
establishes that A-1 left Dubai on 17.03.1993 and
there is no arrival stamp of any country available on
the said passport.
D
(b) Pakistani Passport No. AA-763242 in respect of
Yusuf Ahmed Mohammed shows that the said
passport holder left Karachi on 17.04.1993 and
reached Bangkok on the same day. Again, the said
E passport holder left Bangkok on 29.04.1993. The
passport holder left Karachi on 20.06.1994 and
reached Dubai on the same day. Again, the
passport holder left Dubai on 28.06.1994 but there
is no entry stamp showing his arrival at any place.
F After seeing the Pakistani as well as Indian
Passports, it can be seen that Yusuf Ahmed
Mohammed and A-1 are the same persons.

(c) Pakistani Passport No. AA-763651 in respect of
Aftab Ahmed Mohammed (A-2) shows that the
G passport holder left Karachi on 16.04.1993 and
reached Bangkok on 16.04.1993 itself. The said
person left Bangkok on 27.04.1993. There is no
arrival stamp of any country on the said passport.
The said person again left Karachi on 17 06.1994
H and entered Dubai on the same day. The said
YAKUB ABDUL RAZAK MEMON v. STATE OF 203
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]
person left Dubai on 03.07.1994. Again, the said A
person left Karachi on 09.07.1994 and entered
Dubai on 09.07.1994 itself. Again, the said
passport holder left Dubai on 25.08.1994 and
entered India on 25.08.1994 itself.
B
(d) Pakistani Passport No. AA-763650 in respect of
Akhtar Ahmed Mohammed shows that the said
passport holder left Karachi on 16.04.1993 and
reached Bangkok on 16.04.1993 itself. The said
passport holder left Bangkok on 27.04.1993. There C
is no arrival stamp of any country on the said
passport. The said passport holder again left
Karachi on 17.06.1994 and reached Dubai on
17.06.1994 itself. Again, the said passport holder
left Dubai on 25.08.1994 and reached India on
25.08.1994 itself. D

(e) Indian Passport No. C-340734 in respect of Yusuf
Abdul Razak Memon (A-4) shows that the said
person left Bombay on 11 03.1993 and reached
Dubai on 11.03.1993. Further, he left Dubai on E
17.03.1993. However, there is no arrival stamp of
any country on the said passport.

(f) Pakistani Passport No. AA-763654 in respect of
lmran Ahmed Mohammed reveals that the said
F
passport holder left Karachi on 17.04.1993 and
reached Bangkok on the same day. The said
passport holder left Bangkok on 29.04.1993. There
is no arrival stamp of any country on the said
passport. Again, the said passport holder left
Karachi on 20.06.1994 and entered Dubai on G
20.06.1994 itself. The said passport holder left
Dubai on 28.06 1994. There is no arrival stamp of
any country on the passport. Again, the said
passport holder left Karachi on 25.07.1994 and
H
204 SUPREME COURT REPORTS [2013] 15 S.C.R.

A reached Dubai. The said person left Dubai on
10.08.1994 and re-entered Dubai on 11.08.1994.
Again, the passport holder left Dubai on
25.08.1994 and arrived at New Delhi on
25.08.1994. From the Indian Passport of Yusuf
B Abdul Razak Memon and Pakistani passport in
respect of lmran Ahmed Mohammed, it is clear that
lmran Ahmed Mohammed and Yusuf Abdul Razak
Memon are the same persons.

(g) Indian Passport No. C-013120 in respect of Abdul
c Razak Memon (A-5) (dead) shows that the said
person left Dubai on 17.03.1994 and there is no
arrival stamp of any country after that. From the
Indian Passport and Pakistani Passport, it is clear
that Abdul Razak Memon and Ahmed Mohammed
D are the same persons.

(h) Pakistani Passport No. AA-763649 in respect of
Ahmed Mohammed shows that the said passport
holder left Karachi on 25.07.1994 and entered
E Dubai on the same day itself. The said passport
holder left Dubai on 10.08.1994 and re-entered
Dubai on 11.08.1994. Again, the said passport
holder left Dubai on 25.08.1994 and reached India
on 25.08.1994 itself.
F (i) Indian Passport No. C-013796 in respect of Hanifa
Abdul Razak Memon (A-6) shows that she left
Dubai on 17.03.1993 and there is no arrival stamp
of any country on the said passport.

G U) Pakistani Passport No. AA-763645 in respect of
Zainab Ahmed Mohammed shows that she left
Karachi on 25.07.1994 and reached Dubai on the
same day itself. She again left Dubai on
10.08.1994 and re-entered Dubai on 11.08.1994.
H She again left Dubai on 25.08.1994 and entered
YAKUB ABDUL RAZAK MEMON v. STATE OF 205
MAHARASHTRA, THR CBI , BOMBAY [P SATHASIVAM, J.]
India on 25.08.1994 itself. From the Indian passport A
and Pakistani passport, it is clear that Zainab
Ahmed Mohammed and Hanifa Abdul Razak
Memon are Jhe same persons.
-.
(k) Indian Passport No. N-307801 in respect of Rahin 8
Yakub Memon (A-7) shows that she left Bombay on
11.03.1993 and reached Dubai on 11.03.1993
itself. She left Dubai on 17.03.1993 and there is no
arrival stamp of any country on the said passport.

(I) Passport No. T-0-780 in respect of Rahin Yakub C
Memon shows that Rahin Yakub Memon reached
Delhi on 05.09.1994 on the said passport.

(m) Indian Passport No. C-672378 in respect of Rubina
Suleman Memon (A-8) shows that she left Dubai on D
20 .03.1993. There is no arrival stamp of any
country available on the said passport.

(n) Pakistani Passport No. AA-763653 in respect of
Mrs. Mehtab Aftab Ahmed shows that she left
Karachi on 16.04.1993 and reached Bangkok on E
16.04.1993. Again, she left Bangkok on
27.04.1993. There is no arrival stamp of any
country on the said passport.

(o) Pakistani Passport No. AC-001087 in respect of F
Mrs. Mehtab Aftab Ahmed shows that she left
Karachi on 25.07.1994 and entered Dubai on the
same day. She left Dubai on 10 .08.1994 and
entered Dubai on 11.08.1994. Again, she left Dubai
on 25.08.1994 and entered India on 25.08.1994. G
The passport shows that Rubina Suleman Memon
and Mehtab Aftab Ahmed are the same persons.

The above evidence alongwith the confessions of various
co-accused amply prove that the weapons training was
H
206 SUPREME COURT REPORTS [2013] 15 S.C.R.

A organized with the aid of the Government of Pakistan and also
clearly shows a very deep involvement of A-1 in the
organization and conduct of serial bomb blasts in question.

Retractions:
B 126. It has been contended by learned senior counsel that
all the confessions relied upon have been retracted and
therefore, they are not trustworthy and it would not be safe to
place reliance on them. It is also contended that those
statements had been obtained under threat and coercion and
C were not voluntary, as such, those confessional statements
could not be taken to be worthy of reliance. It was submitted
by the prosecution that a voluntary and free confession, even if
later retracted, can be relied upon. It was pointed out that the
retractions were not made at the first available opportunity by
D the accused persons. It was also highlighted that after their
arrest, the accused were brought before the Magistrate's court
several times in 1993 and 1994, however, the retractions were
made many months after recording of the confessions.

E 127. This Court, in Mohd. Amin v. CBI, (2008) 15 SCC
49, considered several TADA cases where confession was
recorded under Section 15 of TADA and later retracted. This
Court was pleased to observe:

"If a person accused of committing an offence under the
F Act challenges his confession on the ground that it was not
made voluntarily, then the initial burden is on the
prosecution to prove that all requirements under Section
15 of the Act and Rule 15 of the Rules have been complied
with. Once this is done, the burden shifts on the accused
G person and it is for him to prove that the confession was
not made voluntarily and that the same is not truthful and if
he adduces evidence during the trial to substantiate his
allegation that the confession was not voluntary then the
court has to carefully scrutinize the entire evidence and
H surrounding circumstances and determine whether or not
YAKUB ABDUL RAZAK MEMON v. STATE OF 207
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]

the confession was voluntary. The confession made under A
Section 15 of the Act cannot be discarded only on the
ground of violation of the guidelines laid down in Kartar
Singh case because the same have not been
incorporated in the Act and/ or the Rules."
B
The court rejecting the contention that confession should
not be relied upon further held in Paragraph 69 that:

"If the confessions of the appellants are scrutinized in the
light of the above enumerated factors, it becomes clear that
the allegations regarding coercion, threat, torture, etc. after C
more than one year of recording of confessions are an
afterthought and products of ingenuity of their advocates.
The statements made by them under Section 313 of CrPC
were also the result of an afterthought because no tangible
reason has been put forward by the defence as to why D
Appellants A-4 to A-8 did not retract their confessions
when they were produced before the Magistrate at
Ahmedabad and thereafter despite the fact that they had
access to legal assistance in more than one way.
Therefore, we hold that the trial court did not commit any E
error by relying upon the confessions of the Appellants A-
4 to A-8 and A-10 and we do not find any valid ground to
discard the confessions of Appellants A-4 toA-8 and A-
10."

128. This Court, in Jameel Ahmed vs. State of Rajasthan, F
(2003) 9 sec 673 held that "it happens very often, it is the
common defence of a person making confessional statement
to deny the same or retract from the same subsequently and
to allege compulsion in making such statement."
G
129. In State of Maharashtra vs. Bharat Chaganlal
Raghani, (2001) 9 SCC 1, this Court, while setting aside the
judgment of acquittal recorded by the Designated TADA Court,
observed as under:
H
208 SUPREME COURT REPORTS (2013] 15 S.C.R.

A "58 ..... There is no denial of the fact that the judicial
confessions made are usually retracted. Retracted
confessions are good confessions if held to have been
made voluntarily and in accordance with the provisions of
law .... Corroboration of the confessional statement is not
B a rule of law but a rule of prudence. Whether in a given
case corroboration is sufficient would depend upon the
facts and circumstances of that case."

130. In Manjit Singh vs. CBI, (2011) 11 SCC 578, this
Court, while considering the question whether retracted
C confessions of co-accused could be relied upon to convict the
accused, held that the retracted statements can be used against
the accused as well as the co-accused provided such
statements were truthful and voluntary when made. In the said
case, the two accused that made confessional statements,
D subsequently retracted from their statements. This Court
observed:

"87. A confessional statement given under Section 15 of
TADA shall not be discarded merely for the reason that
E the same has been retracted .... "

Where the original confession was truthful and voluntary
and has been recorded after strictly following the law and the
prescribed procedure, the subsequent retraction and denial of
such confessional statement in the statement of the accused
F under Section 313 was only as a result of afterthought.

131. In Kalawati vs. State of Himachal AIR 1953 SC 131,
it was said that "the amount of credibility to be attached to a
retracted confession would depend upon the facts and
G circumstances of each case."

132. In State of Tamil Nadu vs. Kutty AIR 2001 SC 2778,
it was held:

" ..... the twin test of a confession is to ascertain whether it
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 209
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J]

was voluntary and true. Once those tests are found to be A
positive the next endeavour is to see whether there is any
other reason which stands in the way of acting on it.
Therefore, retracted confession may form legal basis for
conviction if the court is satisfied the confession was true
and was voluntarily made." B

(See also: Navjot Sandhu (supra).

133. In Balbir Singh vs. State of Punjab, AIR 1957 SC
216, it was held that the rule of practice and prudence requires
a retracted confession to be corroborated by independent C
evidence. (See also: Parmananda Pegu vs. State of Assam,
AIR 2004 SC 4197, Pyare Lal Bhargava vs. State of Rajasthan
Al R 1963 SC 1094, Kehar Singh & Ors. vs. State Al R 1988
SC 1883, Babubhai Udesinh Parmar vs. State of Gujarat
(2006) 12 sec 268). o
134. It is therefore clear that where the original confession
was truthful and voluntary, the Court can rely upon such
confession to convict the accused in spite of a subsequent
retraction and its denial in statement under Section 313. Since
E
we have elaborately discussed the contention with regard to
retraction of statements, there is no need to refer to the same
in respect of other appeals before us.

Corroboration of Confession:
F
135. Further, a contention was raised by learned senior
counsel for the appellant that there was no sufficient
corroboration of the confessional statements made by the
accused. In reply to the above, the prosecution relied upon the
following decisions:- G
136. In Wariyam Singh vs. State of UP, (1995) 6 SCC
458, this Court relied upon the confession made by the
accused for convicting him. The confession was alleged to
have been fabricated. In para 16 of the judgment, it was held
H
210 SUPREME COURT REPORTS [2013] 15 S.C.R.

A that a part of the confession stood corroborated by the
testimony of a witness and, hence, there was no reason to
believe that the confession was fabricated. This Court held that
the allegation of the confession being fabricated was without
any basis and the confession could be taken into account while
B recording conviction.

137. in S.N. Dube vs. NB. Bhoir, (2000) 2 SCC 254, this
Court in para 34 observed that the confessions of two accused
being substantive evidence are sufficient for considering them
and it also received corroboration from the confessions of other
c accused and also general corroboration as regards the other
illegal activities committed by them from the evidence of other
witnesses. On the basis of those confessional statements, this
Court reversed the orders of acquittal passed by the High Court.

D 138. In Lal Singh vs. State of Gujarat, (2001) 3 SCC 221,
this Court upheld the conviction of the accused on the basis of
the confessions. It was held that the Nation has been 'facing
great stress and strain because of misguided militants and
cooperation of the militancy' which was affecting the social
E security, peace and stability. Since the knowledge of the details
of such conspiracies remains with the people directly involved
in it and it is not easy to prove the involvement of all the
conspirators, hence the confessional statements are reliable
pieces of evidence. The Court in para 84 observed:
F "84 ...... Hence, in case of conspiracy and particularly such
activities, better evidence than acts and statements
including that of co-conspirators in pursuance of the
conspiracy is hardly available. In such cases, when there
is confessional statement it is not necessary for the
G prosecution to establish each and every link as
confessional statement gets corroboration from the link
which is proved by the prosecution. In any case, the law
requires establishment of such a degree of probability that
a prudent man may on its b;..sis, believe in the existence
H
YAKUBABDUL RAZAK MEMON v. STATE OF 211
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.)

of the facts in issue. For assessing evidence in such A
cases, this Court in Collector of Customs v. D. Bhoormall
dealing with smuggling activities and the penalty
proceedings under Section 167 of the Sea Customs Act,
1878 observed that many facts relating to illicit business
remain in the special or peculiar knowledge of the person B
concerned in it and held thus: (SCC pp. 553-55, paras 30-
32 and 37)

"30 .... that the prosecution or the Department is not
required to prove its case with mathematical precision to
a demonstrable degree; for, in all human affairs absolute C
certainty is a myth, and-as Prof. Brett felicitously puts it
- 'all exactness is a fake'. El Dorado of absolute proof
being unattainable, the law accepts for it probability as a
working substitute in this work-a-day world. The law does
not require the prosecution to prove the impossible. All that D
it requires is the establishment of such a degree of
probability that a prudent man may, on its basis, believe
in the existence of the fact in issue. Thus, legal proof is
not necessarily perfect proof; often it is nothing more than
a prudent man's estimate as to the probabilities of the E
case.

31. The other cardinal principle having an important
bearing on the incidence of burden of proof is that
sufficiency and weight of the evidence is to be considered
F
- to use the words of Lord Mansfied in Blatch v. Archar
(1774) 1 Cowp 63: 98 ER 969 (Cowp at p. 65) 'according
to the proof which it was in the power of one side to prove,
and 'in the power of the other to have contradicted'."

139. In State of Maharashtra vs. Bharat Chaganla/ G
Raghani, (2001) 9 SCC 1, this Court relied mainly on the
confessional statements of the accused which were also
retracted. It was held that there was sufficient general
corroboration of the confessional statements made by the
H
212 SUPREME COURT REPORTS [2013] 15 S.C.R.

A accused. This Court found sufficient corroboration in the
testimony of the witnesses and the recoveries pursuant to the
statements given by the accused. It was also held that once the
confessional statements were found to have been made
volunta"rily, the test identification parade was not significant. It
B was further held that corroboration is not a rule of law but a rule
of prudence.

140. In Devender Pal Singh vs. State of NCT of Delhi,
(2002) 5 sec 234, this Court was considering, among other
things, whether the accused making the confessional statement
C can be convicted on the basis of the confession alone without
any corroboration. It was held that once it is found that the
confessional statement is voluntary, it is not proper to hold that
the police had incorporated certain aspects in the confessional
statement which were gathered during the investigation
D conducted earlier. It was held that the so-called retraction by
the appellant was made long after he was taken into judicial
custody. It was also observed that:

"51. Where trustworthy evidence establishing all links of
circumstantial evidence is available, the confession of a
E
co-accused as to conspiracy even without corroborative
evidence can be taken into consideration. (See Baburao
Bajirao Patil v. State of Maharashtra.) It can in some
cases be inferred from the acts and conduct of the parties.
(See Shivnarayan Laxminarayan Joshi v. State of
F
Maharashtra)

54. If a case is proved perfectly, it is argued that it is
artificial; if a case has some flaws, inevitable because
human beings are prone to err, it is argued that it is too
G imperfect. One wonders whether in the meticulous
hypersensitivity to eliminate a rare innocent from being
punished, many guilty persons must be allowed to escape.
Proof beyond reasonable doubt is a guideline, not a fetish.
[See lnder Singh v. State (Delhi Admn.)} Vague hunches
H cannot take the place of judicial evaluation.
YAKUB ABDUL RAZAK MEMON v. STATE OF 213
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
"A Judge does not preside over a criminal trial merely to A
see that no innocent man is punished. A Judge also
presides to see that a guilty man does not escape .... Both
are public duties .... " (Per Viscount Simon in Stir/and v.
Director of Public Prosecution quoted in State of UP. v.
Anil Singh, SCC p. 692, para 17 .) B

55. When considered in the aforesaid background, the plea
that acquittal of the co-accused has rendered the
prosecution version brittle, has no substance. Acquittal of·
the co-accused was on the ground of non-corroboration. C
That principle as indicated above has no application to the
accused himself."

141. In Ravinder Singh vs. State of Maharashtra, (2002)
. 9 SCC 55 this Court held that a confession does not require
any corroboration if it relates to the accused himself. It was D
further held that there was enough evidence to provide general
corroboration to the confessional statement. It was further held
that minor contradictions in the statements of the accused were
of no consequence once the confessions were held to be
reliable. E
142. In Jameel Ahmed vs. State of Rajasthan, (2003) 9
sec 673, the position of law was summed up by this Court as
follows:

"35. To sum up our findings in regard to the legal F
arguments addressed in these appeals, we find:

(i) If the confessional statement is properly recorded,
satisfying the mandatory provision of Section 15 of the
TADA Act and the Rules made thereunder, and if the same G
is found by the court as having been made voluntarily and
truthfully then the said confession is sufficient to base a
conviction on the maker of the confession.

(ii) Whether such confession requires corroboration or not,
H
214 SUPREME COURT REPORTS (2013] 15 S.C.R.

A is a matter for the court considering such confession on
facts of each case.

(iii) In regard to the use of such confession as against a
co-accused, it has to be held that as a matter of caution,
a general corroboration should be sought for but in cases
B
where the court is satisfied that the probative value of such
confession is such that it does not require corroboration
then it may base a conviction on the basis of such
confession of the co-accused without corroboratio1>. But
this is an exception to the general rule of requiring
c corroboration when such confession is to be used against
a co-accused.

(iv) The nature of corroboration required both in regard to
the use of confession against the maker as also in regard
D to the use of the same against a co-accused is of a
general nature, unless the court comes to the conclusion
that such corroboration should be on material facts also
because of the facts of a particular case. The degree of
corroboration so required is that which is necessary for a
E prudent man to believe in the existence of facts mentioned
in the confessional statement.'

(v) The requirement of sub-rule (5) of Rule 15 of the TADA
Rules which contemplates a confessional statement being
sent to the Chief Metropolitan Magistrate or the Chief
F
Judicial Magistrate who, in turn, will have to send the same
to the Designated Court is not mandatory and is only
directory. However, the court considering the case of direct
transmission of the confessional statement to the
Designated Court should satisfy itself on facts of each case
G whether such direct transmission of the confessional
statement in the facts of the case creates any doubt as to
the genuineness of the said confessional statement."

143. In Nazir Khan vs. State of Delhi, (2003) 8 SCC 461,
H this court held that the confessional statements made by co-
YAKUBABDUL RAZAK MEMON v. STATE OF 215
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
accused can be used to convict a person, and that it is only as A
a rule of prudence that the Court should look f'f:lr corroboration
elsewhere. It was held that:

"27. Applying the principles which can be culled out from
the principles set out above to the factual scenario, the
B
inevitable conclusion is that the trial court was justified in
its conclusions by holding the accused-appellants guilty.
When an accused is a participant in a big game planned,
he .cannot take the advantage of being ignorant about the
finer details applied to give effect to the conspiracy C
hatched, for example, A-7 is stated to be ignorant of the
conspiracy and the kidnapping. But the factual scenario
described by the co-accused in the statements recorded
under Section 15 of the TADA Act shows his deep
involvement in the meticulous planning done by Umar
Sheikh. He organized all the activities for making D
arrangements for the accused and other terrorists.

144. In Sukhwant Singh vs. State, (2003) 8 SCC 90, this
Court upheld the conviction solely on the basis of the
confession of the co-accused, without any corroboration, that E
too in a situation where the accused himself had not confessed.
The judgment in the case of Jameel Ahmed (supra) was relied
upon. It was held:

"3, In the present case we are aware of the fact that the
appellant has not made any confessional statement nor is F
there any corroboration of the confessional statement of
the co-accused implicating this appellant from any other
independent source but then we have held in the above-
reported case that if the confessional statement of a co-
accu sed is acceptable to the court even without G
corroboration then a confession of a co-accused can be
the basis of conviction of another accused so implicated
in that confession. Therefore the fact that the appellant
herein has not confessed or the confessional statements
H
216 SUPREME COURT REPORTS [2013] 15 S.C.R.

A made implicating him by A-1 and A-2 are not
independently corroborated, will not be a ground to reject
the evidence produced by the prosecution in the form of
confessional statement of co-accused provided the
confession relied against the appellant is acceptable to the
B court."

145. In Mohmed Amin vs. Central Bureau of Investigation,
(2008) 15 sec 49, this Court convicted the accused on the
basis of their confessions and confessional statements of co-
accu sed. It was held that there is no requirement of
C corroboration if the confessions are proved to be made
voluntarily, and the Rules applicable have been complied with.
The following observations are pertinent:

"31. The ratio of the abovenoted judgments is that if a
D person accused of an offence under the Act makes a
confession before a police officer not below the rank of
Superintendent of Police and the same is recorded by the
officer concerned in writing or on any mechanical device
like cassettes, tapes or sound tracks from out of which
E sounds or images can be reproduced, then such
confession is admissible in the trial of the maker as also
the co-accused, abettor or conspirator not only for an
offence under the Act but also for offence(s) under other
enactments, provided that the co-accused, abettor or
conspirator is charged and tried in the same case along
F
with the accused and the court is satisfied that
requirements of the Act and the Rules have been complied
with. Whether such confession requires corroboration
depends on the facts of the given case. If the court is
convinced that the probative value of the confession is such
G that it does not require corroboration then the same can
be used for convicting the maker and/or the co-accused
under the Act and/or the other enactments without
independent corroboration."

H 146. In Mohd. Ayub Dar vs. State of Jammu and Kashmir,
YAKUB ABDUL RAZAK MEMON v. STATE OF 217
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
(2010) 9 SCC 312, it was held that even though the guidelines A
in Kartar Singh, have not been strictly followed, the confession
of the accused recorded is admissible against him and can be
relied upon solely to convict him. The following observations of
this Court are pertinent:
B
"59. It would, therefore, be clear, as rightly contenrJed by
Shri Rawal that merely because the guidelines in Kartar
Singh v. State of Punjab were not fully followed, that by
itself does not wipe out the confession recorded. We have
already given our reasons for holding that the confession
was recorded by A.K. Suri (PW 2) taking full care and
c
cautions which were required to be observed while
recording the confession.

60. In Ravinder Singh v. State ofME!harashtra it has been
observed in para 19 that if the .confession made by the D
accused is voluntary and truthful and relates to the accused
himself, then no further corroboration is necessary and a
conviction of the accused cara be solely based on it. It has
also been observed that such confessional statement is
admissible as a substantive piece of evidence. It was E
further observed that the said confession need not be
tested for the contradictions to be found in the confession
of the co-accused. It is for that reason that even if the other
oral evidence goes counter to the statements made in the
confession, one's confession can be found to be voluntary F
and reliable and it can become the basis of the conviction.

61. In this case, there is ample corroboration to the
confession in the oral evidence as well as the documentary
evidence in shape of a chit, which is referred to in the said
confession. There is a clear reference that the Persona/ G
Assistant, who was a non-Kashmiri and kept a beard, had
sent a slip inside. Ultimately, that slip was found by the
police, which corroborates the contents in the confession.
In our opinion, that is a sufficient corroboration to the
confession. H
218 SUPREME COURT REPORTS (2013] 15 S.C.R.

A 64. All these cases suggest that the only test which the court
has to apply is whether the confession was voluntary and
free of coercion, threat or _inducement and whether
sufficient caution is taken by the police officer who
recorded the confession. Once the confession passes that
B test, it can become the basis of the conviction. We are
completely convinced that the confession in this case was
free from all the aforementioned defects and was
voluntary."

C 147. In view of the above, it can easily be inferred that with
regard to the use of such confession as against a co-accused,
as a matter of caution, a general corroboration should be
sought for but in cases where the court is satisfied that the
probative value of such confession is such that it does not
require corroboration then it may base conviction on the basis
D of such confession of the co-accused without corroboration. But
this is an exception to the general rule of requiring corroboration
when such confession is to be used against a co-accused.

Deposition of Md. Usman Jan Khan (PW-2) Approver
E
148. In the light of the above principles, it is useful to
analyse the entire evidence of PW-2 not only implicating A-1
but also other accused in respect of the incident that took place
on 12.03.1993. PW-2, who turned approver, is a native of
District Rampur, U.P. However, according to him, he is residing
F at Bombay for the last 28 years. He was working as an Estate
Agent and Property Dealer. He was arrested on 10.05.1993
by the Bombay Police in connection with the Bomb Blasts Case.
He was arrested on the allegations that he was involved in the
conspiracy, landing, planning, training and planting of bombs.
G In his evidence, he admitted that he took training in handling of
weapons in Pakistan for a period of 1O days along with others.
During the training, according to him, they were also imparted
training for handling ROX. For the present, since we are
concerned about the role of A-1 relating to conspiracy, we are
H
YAKUBABDUL RAZAK MEMON v. STATE OF 219
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J]
constrained to refer his evidence relating to the said aspect. A
He admitted that he knew Javed Dawood Tailor (AA) known
as Javed Chikna, Mushtaq @ Ibrahim Abudal Razak Memon
known as Tiger Memon and Yakub Adbul Razak Memon as
Yakub (A 1). While identifying the accused concerned in the
Court, PW-2 identified him in the fourth batr:h consisting of eight B
persons. He further stated that all the accused persons whom
he identified before the Court have worked with him and
admitted that they were together in the bomb blasts. It was
further stated that all the persons including A-1 were involved
in planning, conspiracy, training, landing and planting of bombs. c
According to him, when he met Tiger Memon and others at
Hotel Big Splash on 02.02.1993, he (Tiger Memon) told them
that in communal riots in Bombay and Surat, Muslims have
suffered a lot and Babri Masjid has been demolished and that
restrictions have been put even on "Azaan" and "Namaz". He
D
informed all of them that during the riots their mothers and
sisters have been dishonoured and the Government is not
extending any help to them. So, he wanted to take revenge and
he requested all of them to help him in this regard. When this
meeting was going on, two persons, namely, Yeda Yakub and
Shahid also joined them in the meeting. Tiger Memon also told E
them that he has arranged for arms and explosives from
Pakistan which are coming on that day and he also warned
them that if any person betrays him, he will finish him and his
family.
F
149. He further deposed that on the same day, at about 4
p.m., all of them left for Shekhadi Coast in two Commander
Jeeps. In one Jeep he was traveling along with Tiger Memon,
Javed, Munna, Anwar, Akbar and Karimullah and others were
in the second jeep driven by Shafi. According to him, at G
Shekhadi Coast, three agents of Tiger Memon, namely,
Dadabhai, Dawood Taklya and Rahim Laundriwala along with
30/40 persons from the neighbouring village were present. At
about 11 p .m., one speed boat came near the coast and
passed over 7 military coloured bags containing guns, pistols H
220 SUPREME COURT REPORTS [2013] 15 S.C.R.

A and grenades of green colour having oval shape. The guns
were AK-56 rifles. Tiger Memon distributed AK-56 rifles to
Javed and Anwar and others including PW-2 were given
handgrenades and pistols. PW-2 was also given a pistol. All
the goods were loaded in a truck which was parked there. Tiger
B asked them to proceed towards Waghani Tower. When they
reached Waghani Tower, PW-2 noticed that 2/3 jeeps and a
Maruti Car were parked there. He along with others unloaded
the goods from the truck and brought them to the central room
of Waghani Tower. On Tiger's instructions, he and others
c unpacked the bags. The bags were containing AK-56 rifles,
hand grenades, pistols, round (cartridges), wires (detonators),
magazines and ROX etc. All these items were then kept in the
cavities of the motor jeeps. One box of detonators was kept in
a blue coloured Commander Jeep by Shafi to take to Hotel
Persian Darbar on the instructions of Tiger Memon.
0
150. He also explained about booking of a room in Hotel
Persian Darbar at Panvel on 10.02.1993 in the name of Md.
Usman Khan. On 11.02.1993, Javed Chikna came to his
residence and asked for his passport telling him that 'Tigerbhai'
E has called for it. PW-2 handed over his passport to Javed
Chikna. PW-2 informed the Court that he had obtained the
passport in January, 1987 and his passport No. is B-751254.
At about 1 p.m., he received a call from Javed Chikna informing
him to come prepared for going to Dubai and to meet him at ·
F the Hindustan Soda Factory, Mahim. At about 4 p.m., he met
Javed Chikna at the said place and from there Javed took him
to the Al Hussaini Building. In categorical terms, he asserted
that Tiger Memon resides in the Al-Hussaini Building at Mahim.
On 11.02.1993, when he went there, Tiger Memon and Yakub
G Memon (A-1) were sitting together in the flat. Tiger Memon told
Yakub Memon to give six air tickets to Javed Chikna (AA).
Thereafter, Yakub Memon (A 1) gave six air tickets to Javed
Chikna. PW-2 and Javed Chikna wished "Khuda Hafiz" to Tiger
Memon and left the place. Thereafter, he along with others went
H to the airport to go to Dubai. He reached Dubai at 10.30 p.m.
YAKUBABDUL RAZAK MEMON v. STATE OF 221
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

At Dubai Airport, Ayub Memon (AA) had come to receive them. A
Ayub Memon is the brother of Tiger Memon. This was on
11.02.1993. He also informed the Court that on 13.02.1993,
Tiger Memon and Ayub Memon met them at the Dubai Airport.
Tiger Memon gave seven air tickets of Pakistan Iriternational
Airlines and their passports to Javed Chikna. Tiger Memon B
informed all of them that they need not worry about their journey
to Pakistan. He also informed that one Jafar Saheb will receive
them at the Islamabad Airport and will take care of them. On
reaching Islamabad Airport, Jafar Saheb escorted them and
they were not required to pass through the immigration counter c
and various checks and they came out of the airport with their
luggage without any problem. The Airport Officials salute Jafar
Saheb when he was escorting them out of the Airport. He
further explained that two Jeeps were parked outside the
Airport and from there they were taken to a bunglow. On D
reaching the bungalow, Jafar Saheb collected their passports
and air tickets and each one of them was given a fake name.
He was named 'Nasir'. Likewise, names of others were also
changed. Jafar Saheb instructed them that during their stay in
Pakistan they should call each other by these new names. They
E
stayed in the bungalow for two days i.e. 14th and 15th. Then
on 16th, Jafar Saheb took all of them to a different place and
introduced them to two persons and informed them that these
persons will impart training in arms and ammunitions and left
the place. On the next day, three more persons joined the
training camp and all of them were given training in operating F
fire arms like AK-56 rifles, pistols and they were also shown
how to dismantle and reassen:ible the fire arms. Training in fire
arms was given from 19.02.1993 to 21.02.1993. During this
time, in the night, nine more persons came to the training camp,
viz., Yeda Yakub (AA-11 ), Nasir Dhakla (A-64 ), Anwar Theba G
(AA-8), lrfan Chougule (AA-12), Shahnawaz (A-29), Abdul
Akhtar (A-36), Mohmed Rafiq (A-94), Gullu (A-77) and Bashir
Khan (AA-15). These persons also joined them for training.
According to PW-2, in all, there were 19 persons taking training
at the relevant time. On the next day, Tiger Memon along with H
222 SUPREME COURT REPORTS [2013] 15 S.C.R.

A one Ahmed Sahab arrived at the training camp and stayed
there. In training, they were taught how to operate AK-56 rifles,
pistols, hand grenades and the use of ROX for preparing
bombs. They were given a practical demonstration of an ROX
bomb which was fitted with a half an hour timer pencil detonator.
B · The bomb explosion resulted in a deafening sound followed by
huge black smoke and it blew up stonesand earth. The next day,
Tiger left the camp. On 27.02.1993, they all returned from the
training camp to the bungalow where they were kept on their
arrival at Islamabad. All of them were escorted by Ahmed
c Sahab and Jafarbhai and without any checking they were given
boarding cards and they left Islamabad by a PIA flight and
reached Dubai at about 1.30 to 2 p.m. On reaching Dubai,
Tiger took all of them to a bungalow situated at Al-Rashidia.
After finishing their meals, they discussed the communal riots
in Bombay and Surat where Muslims had suffered. Thereafter,
0
Tiger directed lrfan Chougule (AA-12) to bring the holy Quran
from the other room. Tiger administered oath to all of them by
placing their hands on the holy Quran that they will not disclose
anything about the training in Dubai and Pakistan to any person
E including their family members and about their proposed future
plans and in the event that they were arrested by the Police they
would not disclose their plans and nam.es of their associates.
Thereafter, Tiger Memon distributed 200 Dirhams to each one
of them for shopping etc. Thereafter, they left Dubai in batches
as and when they received their passports and tickets.
F
151. On 04. 03.1993, they reached Sahar Airport, Bombay.
The Disembarkation Card was filled by him in his own
handwriting and he himself signed it. At the airport, he noted
that one Ambassador Car and one Maruti Car had come to
G receive them. He further stated that Tiger Memon and Javed
Chikna sat in the Maruti Car which was driven away by Tiger
Memon. He along with Bashir Khan sat in the Ambassador Car
in which Yakub Memon (A-1) and one more person was sitting.
After reaching Mahim from there, he went to his house at 5 p.m.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 223
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

152. The critical analysis of the evidence of PW-2 makes A
it clear that though he did not mention about the participation
of A-1 in all the meetings, however, he identified A-1 in court
and asserted that he is the brothet--0f Tiger Memon and it was
he who assisted his brother at the AlHussaini Building for all
preparations, viz., purchasing tickets, getting visas, making B
arrangements for the persons who were sent to Pakistan via
Dubai for training in handling and throwing bombs, filling ROX
in vehicles etc., their stay at Dubai and comfortable return of
such persons from Pakistan to Bombay, payments to various
persons who underwent training which clearly prove the c
involvement of A-1 in the conspiracy as well as in subsequent
events and actions along with his brother and other accused.

153. On the very same day, i.e, on 04.03.1993, all of them
met at the Taj Mahal Hotel. In the. hotel, they went to the Coffee
shop, Shamiana. This was around 10.30 to 10.45 p.m. Tiger D
Memon, after discussion with one Farooqbhai took them
towards the Share Market building in his car near Fountain and
showed them the new and the old building of the Share Market.
On the way, Tiger Memon told them to survey the Bombay
Municipal Corporation Building and to check its two entrances. E
After noticing the same from there, they returned to the Taj Mahal
Hotel. After dropping Tiger Memon at his residence i.e. at the
Al-Hussaini Building, Mahim, they took his maruti car and went
to the residence of Sardar Shawali Khan (A-54) at Kurla. Bashir
Khan then administered oath to A-54 stating that whatever they F
will do, they will do for Islam and would take revenge for the
demolition of the Babri Masjid and communal riots.

154. In respect of a question relating to the purpose of the
survey, he answered that the purpose was to shoot down the G
Municipal Councillors of BJP and Shiv Sena parties with AK-
56 rifles by indiscriminately firing upon them. After conducting
the survey, they went to meet Tiger Memon and briefed him and
after that left for their house. He explained that the third meeting
was held on 07 .03.1993 and in that meeting Javed Chikna (AA-
H
224 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 7), Tiger Memon (AA-2), Nasim @Yusuf (A-49), Kalu, Bashir
Electrician (A-13), Main (A-43), Parvez Kelewala (A-100), Nasir
Dhakla (A-64) and he along with Bashir Khan, Salim Rahim
Shaikh, Akram@ Firoz and some persons who were with them
in the training and Sardar Shahwali Khan (A-54) and Lalli were
B also present In the said meeting, Tiger organized separate
groups for surveying targets. The task assigned to his group
was to survey the Sena Bhavan and Sahar Airport. According
to him, as directed by Tiger, after completion of the work, he
and others briefed Tiger.
c 155.0n 08.03.1993, a fourth meeting was held at Babloo's
(AA-18) place between 10 and 10.30 p.m. This meeting was
held at a flat on the terrace portion. After calling them, including
PW-2 inside the flat, Tiger Memon selected the targets. These
targets include Air India Building, Nariman Point, Bharat
D Petroleum Refinery, Chembur, Share Market near Fountain,
Zaveri Bazaar near Mohd. Ali Road and Pydhoni, Five Star
Hotels, Cinema Theatres, Shiv Sena Bhavan, Shivaji Park,
Dadar, Bombay Municipal Corporation Building, V.T., Sahar
Airport, Passport Office, Worli, Mantralaya etc. These were the
E places which were to be attacked by planting bombs, by using
AK-56 rifles and by throwing hand grenades. Tiger Memon
formed separate groups and gave instructions separately.
About the Bombay Municipal Corporation Building, Tiger
Memon also explained to them the entry and exit points of the
F said Building for the purpose of attacking BJP and Shiv Sena
Councillors with AK-56 rifles. After this, they came back to
Mahim and left for their residence.

156. According to PW-2, another meeting was held on
G 10.03.1993 at the Hindustan Soda Factory, Mahim in the
evening. There he met Javed Chikna. At that time, Javed
Chikna informed him that in the evening around 8 p.m. there is
a meeting at Shakil's place at Sandra and directed him to
attend the said meeting. Pursuant to the same, PW-2 reached
Shakil's residence at 8.30 p.m. There he met Tiger Memon,
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 225
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J]
Javed Chikna, Salim Bazarwala, Bashir Khan, Zakir, Nasir A
Dhakla, Parvez Kelewala, Moin, Iqbal, Sardar Shawali Khan,
Bashir Electrician, Mehmood @ Kaloo and Nasim @ Yusuf.
Tiger Memon also distributed Rs.5,000/- to each one of them
in the said meeting. He explained to Tiger about the survey of
the Chembur Refinery. B

157. On the next day i.e., on 11.03.1993, they all gathered
at the Hindustan Soda Factory, Mahim at 8 p.m. At 9.30 p.m.,
they received a phone call from Tiger Memon who directed all
of them to reach the Al-Hussaini building immediately. Pursuant C
to the said direction, all of them including PW-2 went to the fifth
floor of the said building, Le, to Tiger's flat and he noticed
several persons interacting with Tiger. Tiger called him to his
bedroom. There, once again, he explained the survey of the
Chembur Refinery and informed him that there is very tight
security, hence, it will be impossible to carry out the work there. D
On this, Tiger Memon cancelled the plan of Chembur Refinery.
Tiger Memon instructed them that as they have learnt the work
relating to detonators and timer pencils, they should fill RDX in
the vehicles and place detonators and timer pencils in a proper
way. They all agreed to do the same. Tiger Memon handed over E
some detonators and timer pencils to them. Tiger instructed
them to go to the Share Bazaar i.e. Stock Exchange and Air
India Building. Tiger also gave pencils to various persons and
instructed Javed Chikna and Anwar Theba to pay Rs. 5,000/-
to each one of them and also directed that they have to act and F
work according to the directions of Javed Chikna and Anwar
Theba.

158. He further informed the Court that Tiger Memon
conveyed to them that after the blasts in Bombay, there will be G
communal riots, so all of them should leave Bombay and they
can contact him over the telephone. He gave his telephone No.
of Dubai as 27 27 28. Thereafter, Tiger Memon met all of them
and left in a Maruti Car with Anwar (AA-8), Asgar (A-10) and
Shafi. (AA-9). He also stated that in the garage Abdul Akhtar
H
226 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (A-36), Iqbal (A-23), Mein (A-43), Kalu @ Mehmood, Nasim @
Yusuf (A-49) were filling ROX in the dicky of the motor vehicles.
PWs 2 and 6 met Farooq Pawale (A-16) and Javed Chikna
instructed Farooq Pawale to take one maruti car to Shiv Sena
Bhavan, Dadar and park it near there. As directed, PW-2
B accompanied A-16 in a white maruti car and it was he who
drove the maruti car to Shiv Sena Bhavan. He further informed
that one Hawaldar (Constable) was sitting there who was not
allowing us to park the car but with great difficulty he parked
the maruti car near the wall by the side of the service station
c within the campus of petrol pump. The said petrol pump was
Lucky Petrol Pump and it has a common boundry wall with Shiv
Sena Bhavan.

159. He also explained that after reaching the Al-Hussaini
Building, he went to the fifth floor in Tiger's flat. There he saw
D Javed Chikna was distributing hand grenades to some
persons, namely, Salim Bazarwala (A-52), Abdul Akhtar (A-36),
Kalu@ Mehmood, Mein (A-43) and Bashir Electrician (A-13).
They all were given four hand grenades each by Javed Chikna.
He instructed them that they would have to throw these hand
E grenades in Fishermen's Colony at Mahim. He also gave four
hand grenades each to Iqbal (A-23) and Nasim @ Yusuf (A-
49) and directed them to throw the same to Sahar Airport. As
planned, several blasts took place at various places in Bombay.
He contacted Tiger Memon and apprised him of the same and
F as directed left Bombay immediately and reached Calcutta.
From there also, he contacted Tiger but he could not speak to
him. He reached Delhi by train and went back to his village at
Rampur, U.P. He was arrested on 10.05.1993 and on the same
day, he was brought to Bombay. About his statement to DCP
G Bishnoi, he deposed before the Court on 25.06.1993 that the
DCP has correctly recorded his statement. It bears his
signature and is also counter signed by DCP Bishnoi.

160. On 20.09.1993, he wrote a letter to the Joint
Commissioner of Police, Mr. M.N. Singh through the Jail
H Authorities. In this letter, he expressed that he is repenting the
YAKUB ABDUL RAZAK MEMON v. STATE OF 227
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J]
crime committed by him against his country and humanity and A
so he wanted to confess his crime before the Court. At Killa
Court, ACP Babar told him that if he is really repenting what
he has done then he can be made a witness and can be given
pardon if he will tell the truth before the Court. On his statement,
he was produced before the Chief Metropolitan Magistrate. B
The CMM asked him about his involvement in the Bombay
blasts which took place on 12.03.1993. He stated before the
CMM about his involvement in the conspiracy and planting of
bombs and expressed that he is repenting for what he had
done. When the CMM asked him whether he will state the same c
in the Court, PW-2 answered in the affirmative, i.e., Yes. At this,
the CMM offered him pardon and he accepted it. The entire
conversation between the CMM and PW-2 was recorded by
the typist and read over to him. He also expressed that tender
and acceptance of pardon was correctly recorded and it bears
D
his signature. On 28.09.1993, when he was granted pardon in
the Killa Court, he was brought back to the prison and kept in
Ward Nb. 10.

161. In the cross-examination, he admitted that he had
been a resident of Mahim since 1985. With regard to several E
questions put by various counsel, in his cross-examination,' he
admitted that he was involved in the case from the stage of
conspiracy till planting of bombs and is responsible for the
explosions. He also admitted that he participated in all the
stages of conspiracy till the achievement of the object. He F
admitted that the blasts that took place on 12.03.1993 were very
heinous and a serious crime.

162. When he was.produced before the DCP, namely,
Shri K.L. Bishnoi (PW-193) on 25.06.1993, in categorical
G
terms, he explained that the DCP had cautioned him that he
was going to record his confession under Section 15 of TADA
and also warned him that he was not bound to make a
statement before him and that the said statement would be used
against him in the court during the trial.
H
228 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 163 .In respect of a question relating to certain variations
in his earlier statement (Exh. 25A}, he informed the court that
"I cannot say why it is not recorded in my statement Exh. 25A".
Though counsel appearing for the accused pointed out certain
variations/omissions, if we consider the entire statement both
B in the examination-in-chief and his explanation in the cross
examination, we are of the view that those omissions do not
materially affect his statement. In fact, he has admitted that he
narrated the whole story to Mr. Bishnoi and he recorded
whatever was told to him. However, he admitted that certain
C statements have been incorrectly recorded in Exh. 25A.

164. In cross-examination, he reiterated what he had
stated in the examination-in-chief that he came into contact with
Tiger in connection with property dealing through Javed Chikna.
Thereafter, he admitted that he used to meet Tiger at the
D Hindustan Soda Factory where Javed Chikna also used to visit.
He informed the Court that Javed Chikna was a 'dada' and
hatchman of Tiger. He was assured that there was no risk in
participating in the landing of goods which were being smuggled
by Tiger as Tiger was known for managing everyone. According
E to him, the Hindustan Soda Factory at Mahim was a den for all
sorts of anti-social activities which was owned by the brother-
in-law of accused Hanif Kandawala. In the meeting, he agreed
to participate in the conspiracy because Tiger aroused his
religious feelings mentioning about communal riots and
F demolition of the Babri Masjid. He admitted that on 12.03.1993,
he left the Al-Hussaini building in a Maruti Van bearing No.
MFG 1972 in order to attack the Bombay Municipal Corporation
building which was the target entrusted to him and to his team.

165. When he was in custody, he came to know that most
G of other accused have also made confessions like him. He also
admitted that he was aware that they will be caught for the
destruction caused in bomb explosions and the maximum
penalty will be death. Assistant Commissioner of Police, Mr.
Babar had told him in Killa Court that if he agreed to become
H a prosecution witness and make a true and full disclosure of
YAKUB ABDUL RAZAK MEMON v. STATE OF 229
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]

events, he will be granted pardon to which he agreed. A
According to him, he read the Order Exh. 27. The order was
directed to be produced before the Metropolitan Magistrate,
13th Court, Dadar for recording a statement under Section 164.
In para 215 of the cross-examination, in categorical terms, he
admitted "my statement Exh. 25A is correctly recorded except B
small mistakes and so what I deposed before the Court in my
examination-in-chief and recorded on Page 138 in para 88 to
the effect that my statement recorded on 28 .06.1993 and
29.06.1993 is correctly recorded, is correct."

166. In para 233 of his cross-examination, PW-2 has
c
admitted that "the contents of the retraction (Exh-D-2) are not
his statements as it contains language and words of a qualified
person conversant with legal terminology". For another
question, he specifically denied that prior to becoming an
approver, he was trying to extract money from other accused D
persons. He also denied the allegation as incorrect that on
05.10.1993 he expressed his unwillingness to become an
approver and showed his anxiety to join the company of other
accused. He also denied the allegation that while he was in
police custody, the police obtained his signature on blank. E
sheets.

167. With regard to the Al-Hussaini Building, he stated that
there were certain open and closed garages. He described that
the Al-Hussaini building is a multistoried building and Mahim F
Police Station· is situated at a walking distance of one minute
from the said Building. In para-243 of his statement, in
categorical terms, he admitted that "I have participated in all
the stages of conspiracy till Bombay blasts on 12.03.1993 i.e.
in landing of arms and ammunitions and explosives, weapQns G
training at Islamabad, survey of targets chosen for causing
bomb explosions in various meetings held to plan things and
also in planting of motor vehicle bombs near Shiv Sena Bhavan
and in the unsuccessful attempt to attack i.e. preparation by
proceeding towards the goal in a Maruti Van MFC-19]2 to
230 SUPREME COURT REPORTS [2013] 15 S.C.R.

A attack Councillors of BJP and Shiv Sena in B.M.C. Building at
V.T."

168. Regarding weapons training, he mentioned in para
244 that "It is correct to say that for the first time in my life, I
B was given weapon training in handling and operation of AK-
56 rifles, 9 mm pistols, handgrenades and ROX explosives
during the period 17.02.1993 to 27.02.1993. Before this, I have
never operated any fire arm. It is true that I was given a loaded
Pistol at Shekhadi Coast on the night of 02.02.1993 with clear
C instructions to attack any outsider who comes to the landing
site, I did not tell Tiger Memon that I do not know how to operate
Pistol." Regarding training and execution of work, he stated that
"my object was to take training and participate in the acts in
accordance with the instructions of Tiger Memon".

0 169. About his reaction after Bombay blasts, he stated in
his deposition that "on 12.03.1993, after the successful
explosion of bombs, my only desire was to run away and
escape as otherwise if I was arrested by the police, my position
would have been precarious." Regarding landing of '
I-
E ammunitions and explosives, he admitted that arms and I
ammunitions and explosives were landed at Shekhadi in the
intervening night between 02.02.1993 and 03.02.1993 and this
consignment was carried out as per the instructions of Tiger
Memon.
F 170. Regarding filling of ROX and other ammunition, he
stated that the work of filling ROX in the motor vehicles started
after half an hour of Tiger Memon's departure. According to him,
there were about 10-12 motor vehicles like Ambassador cars,
Maruti cars, Commander jeeps and scooters. He explained
G that a motor vehicle bomb can be prepared by loading ROX
explosive in its dicky or at any place in the vehicle and by fixing
it with a timer pencil and that it will explode at the time set in
the Timer Pencil. The time of explosion will deviate and depend
on the temperature. The timer pencil which he was shown in
H the training had a duration ranging from half an hour to five
YAKUB ABDUL RAZAK MEMON v. STATE OF 231
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

hours. He and others were trained in Pakistan to prepare motor A
vehicle bombs.

171. In para 322, he asserted that in his statement before
P.I. Pharande, DCP Bishnoi and P.1. Chavan, he had stated the
truth and made full and true disclosure of all the facts within his B
knowledge. In his statement before these officers, he reiterated
that he had stated all the relevant and important events within
his knowledge. He also admitted that "he was motivated to
participate in this heinous crime by Tiger Memon by arousing
his sentiments by administering oath on holy Quran for taking C
revenge of the demolition of Babri Masjid, riots in Bombay and
Surat in which Muslim people had suffered a lot, destruction
caused in communal riots in Bombay and Surat, restrictions
imposed on 'Azaan' and 'Namaz' and dishonouring of their
family members in riots and Government remaining silent and
hence, he got prepared to participate in the crime to take D
revenge."

172. With regard to the relationship of A-1 with his brother
and others, it was stated by him that "In my statement before
P.1.Chavan I have stated that Yakub Memon, with one more E
person had come to receive us at the Sahar Airport on our
return from Dubai as stated by me before the Court which is
recorded on Page: 108 Para 60 . Similarly, I also stated that I
along with Bashir Khan sat in the Ambassador Car in which
Yakub Memon and one more person were there, as stated by F
me before the Court, but, it is not recorded in my statement
before P.l.Chavan, I can not assign any reason why it is not
recorded by P.1.Chavan." He also reiterated that his
confessional statement was recorded as per his narration and
DCP, Bishnoi (PW-193) used to dictate it to the typist as per G
his say.

173. He is also very well aware of the fact that giving false
evidence in Court is an offence and asserted that he is a law
abiding citizen. In para 364, he fairly accepted that after
recording his statement and after its completion, he signed it H
232 SUPREME COURT REPORTS [2013] 15 S.C.R.

A on all the pages at the bottom and at the end of the statement
before he came out of the office of the DCP. After his signature,
DCP Bishnoi checked up his signature on all the pages and,
thereafter, he also signed the same.

B 174. About his willingness to confess his guilt before the
Court, let us consider whether all the required formalities and
procedures have been complied with by the concerned
investigating officer and the court concerned. The Chief
Investigating Officer, Bomb Blast Case, in his letter dated
C 28.09.1993, addressed to the Chief Metropolitan Magistrate
stated that after the Bombay blast that took place on
12.03.1993, one of the accused, namely, Mohammed Usman
Ahmed Jan Khan (PW-2) who also participated right from the
conspiracy ending with blasts on 12.03.1993 and who had
been arrested has submitted an application from jail on
D 20.09.1993 expressing voluntary readiness and willingness to
confess his guilt before the Court. In the said letter, it was further
stated that during the investigation, it has transpired that a
conspiracy was hatched between the accused persons in
Dubai and in pursuance of the said conspiracy, some of the
E accused persons involved in the blasts were sent to Pakistan
for training in handling ROX explosives, firearms, grenades etc.·
It further transpired during investigation that the said conspiracy
was hatched in order to strike terror in people as well as to
affect adversely the harmony between Hindus and Muslims and
F also to wage war against the Central and the State
Government. In the said letter, it was further stated that except
the participants, nobody had any personal knowledge of how,
when, where and why the criminal conspiracy was hatched and
how all the details were chalked out to perfect the said
G conspiracy, how different acts were carried out with determined
intention of achieving the object of the said conspiracy including
training in Pakistan, how ROX· explosives and other firearms
were smuggled into India, how the ROX laden vehicles were
planted at different places in Bombay and how the bomb blasts
H took place. The officer has further stated that the said accused
YAKUB ABDUL RAZAK MEMON v. STATE OF 233
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

(PW-2) has voluntarily expressed his desire to confess before A
the Court out of repentance. Accordingly, he suggested that
instead of his mere confession, his evidence before the Court
as a prosecution witness would help the prosecution to a great
extent in collecting evidence against such other offenders. He
also noted that inasmuch as the accused is repenting very B
much and is prepared to run the risk of giving a judicial
confession, the said accused would be a very good witness as
an approver if pardon is granted to him by this Court. Hence, it
was urged that it is necessary to tender pardon to the said
accused on the condition of his true and full disclosure of all c
the facts and circumstances within his knowledge so far as
conspiracy hatched in Dubai, training in Pakistan, smuggling
of ROX and landing of the same at Dig hi and Shekhadi coasts,
transportation of ROX to Bombay, filling of the vehicles with
ROX and planting of the same at important places in Bombay
0
on 12.03.1993 and other acts incidental thereto are concerned.
With these particulars and details, the Chief Investigating
Officer prayed before the Court or such other Metropolitan
Magistrate that he may kindly be directed to record his
statement under Section 164 of the Code.
E
175. The said application of the Chief Investigating Officer,
Bombay Bomb Blast case on 28.09.1993 was submitted to the
Court through Special Public Prosecutor Shri Nikam. Shri
Nikam has also produced the warrant issued by the Designated
Court in Misc. Application No. 632 of 1993 in TADA Special F
R.A. No. 34 of 1993. In the said warrant, the Designated Court
directed that the accused Mohammed Usman Jan Khan be
produced and forwarded to the· Court of Chief Metropoitan
Magistrate on 28.09.1993 at 1200 hours with a direction to the
said Court to tender pardon to him on the condition of his true G
and full disclosure of facts pertaining to the Bombay blast
offences within his personal knowledge. Thereafter, after fulfilling
all the formalities, the said accused was first questioned by the
Chief Metropolitan Magistrate, Bombay at 4.15 p.m. The
accused stated that he is aware that he is before the Court of H
234 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Chief Metropolitan Magistrate of Bombay. Thereafter, the Chief
Metropolitan Magistrate showed the accused his handwritten
application dated 20.09.1993 addressed by him from Bombay
Central Prison to Shri M.N.Singh, Joint Commissioner of
Police, Bombay. The accused identified his hand writing and
B his signature. On being confronted with this letter, the accused
stated that the letter was written by him voluntarily. The Chief
Metropolitan Magistrate, thereafter, asked the accused as to
whether he was aware as to why he was being produced before
him. By way of reply, the accused stated that he was involved
c in the Bombay blasts which took place in Bombay on
12.03.1993 along with other persons in a conspiracy and as
he desires to disclose all these things in full detail, he is being
produced before him. The Chief Metropolitan Magistrate further
noted that he was prepared to make all the disclosures in detail.
The accused also replied that he is ready and willing to stand
0
as a witness for prosecution and would make all these
disclosures if pardon is granted to him. The Chief Metropolitan
Magistrate has also recorded that on going through the replies
given by the accused to several queries, he was satisfied that
the accused is ready and willing to give a full and true
E disclosure of all circumstances within his knowledge relating to
Bombay Bomb Blasts Case. The Chief Metropolitan Magistrate
has also carefully perused the report of the Chief Investigating
Officer and was fully satisfied that it is a case of conspiracy and
in pursuance to the said conspiracy, the accused and other
F persons had planted and caused explosion of bombs at various
places in Bombay on 12.03.1993. Therefore, he was satisfied
that the grounds given by the Chief Investigating Officer in his
application were true and correct. After recording the same, on
28 09.1993 itself, he passed an order in view of powers
G conferred on him under Section 306 of the Code and tendered
pardon to the accused-Mohammed Usman Jan Khan (PW-2)
on the condition of his making full and true disclosure of all the
circumstances within his knowledge relating to the blasts which
occurred on 12.03.1993 and also in respect of the offence of
H conspiracy and such other offences connected therewith in the
YAKUB ABDUL RAZAK MEMON v. STATE OF 235
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J.]
commission thereof. The said order has been read over and A
explained to the accused in Hindi and he accepted the tender
of pardon on the aforesaid condition. Pursuant to the same, the
Superintendent, Central Jail, Bombay was directed to keep the
accused (PW-2) in a separate cell under proper surveillance
and to make him available for the purpose of producing him B
before the Metropolitan Magistrate for recording his statement
under Section 164 of the Code as requested by Chief
Investigating Officer. The above mentioned letter of the Chief
Investigating Officer dated 28.09.1993 and the consequential
order passed by the Chief Metropolitan Magistrate dated c
28.09.1993 giving pardon and recording his statement satisfy
the procedure prescribed and there is no flaw with regard to
the grant of pardon and the recording of his statement
thereafter.

176. A perusal of the entire evidence of PW-2 clearly show D
that at no point of time he acted under pressure to become an
approver. It is also clear that after serious thought and due to
repentance, he realized that in such a serious matter it is better
to reveal all the details to the Court. He withstood the lengthy
cross-examination. PW-2's testimony runs into hundreds of E
pages and he covered all the aspects starting from initial
conspiracy and ending with execution of blasts at various
places in Bombay on 12.03.1993. We are also satisfied that
his confessional statement before the Deputy Commissioner
of Police and his statement before the Designated Court are F
not borne out of fear but due to his conscience and repentence.
We are also satisfied that his statement is believable and
merely because at one or two places, he made certain
comments on the omission/addition in the statement recorded
by the Chief Investigating Officer, it does not materially affect G
the statement. On the whole, his testimony is reliable and
acceptable and the Designated Court rightly relied on his entire
statement in support of the prosecution case.
'
177. It was further contended by learned senior counsel
H
236 SUPREME COURT REPORTS [2013] 15 S.C.R.

A that the evidence of the approver does not incriminate the
appellant (A-1 ). The deposition of PW-2 reveals several
incriminating circumstances against the appellant (A-1) which
may be summarized as follows:

(i) PW-2 identifies the appellant in Court.
B
(ii) PW-2 has deposed that on being told by Tiger Memon
(AA), the appellant gave six air tickets to Javed Chikna
(AA) at Al-Hussaini Building on 11.02.1993 for going to
Dubai. PW-2 and Asgar Mukadam (A-10) were also
c present at the flat of Tiger Memon where the appellant
handed over air tickets to Duabi. Further, the fact that three
air tickets were given by the appellant to Javed Chikna
instead of six has been expressely denied by PW-2.

D (iii) These six air tickets were actually used by the accused
persons to undergo training in Pakistan where they went
via Dubai. The appellant was thus instrumental in achieving
the ultimate object of conspiracy by arranging for and
handing over the air tickets to accused persons in the
presence of Tiger Memon.
E
(iv) On return from arms training in Pakistan, PW-2 states
that Tiger Memon (AA), Javed Chikna (AA), Bashir Khan
(AA) and he returned together from Dubai to Bombay on
04.03.1993 by Emirates Flight. At the airport, two cars
F were waiting to receive them and PW-2 sat in an
Ambassador car in which the appellant was also present.

178. PW-2 stated that the tickets were given by the
appellant to a co-conspirator which fact has been corroborated
G by A-10 in his confessional statement. If this evidence is
considered along with the fact that these tickets were arranged
by the appellant (A-1) and he was present in the meeting of the
co-conspirators, i.e., in the meeting of Tiger Memon, PW-2,
Javed Chikna and A-10, it very clearly establishes his unity with
H the object of the conspiracy.
YAKUB ABDUL RAZAK MEMON v. STATE OF 237
MAHARASHTRA, THR CBI , BOMBAY [P SATHASIVAM, J]

179. The prosecution has established by evidence that A
arranging the tickets to Dubai was one of the responsibilities
of A-1. It is very clear that the deposition of PW-2 to the extent
that when PW-2 and other conspirators were called by Tiger
Memon, Yakub Memon was also present there, who on being
asked by Tiger Memon, handed over the tickets to a co- B
conspirator which clearly establishes the active participation of
A-1 in the conspiracy. If it was a conspiracy only known to Tiger
Memon and Yakub Abdul Razak Memon did not share the
object of the conspiracy with the Tiger Memon and other co-
conspirators then Tiger memon would not have met with the co- c
conspirators in the presence of A-1. The fact that the co-
conspirators were called for the meeting in the presence of A-
1 and were being given instructions by Tiger Memon about the
conspiracy in his presence clearly establish the active
participation of A-1 in the conspiracy.
D
180. It has further come in evidence that when PW-2
returned from Dubai along with Tiger Memon and other co-
conspirators, A-1 was present with the car at the airport and
returned to Mahim along with other co-conspirators. In fact, if
A-1 had gone to the airport to receive his brother only, he would E
then have returned in the car with his brother alone. However,
he came back in the car with other co-conspirators which also
show his familiarity with other co-conspirators.

181. It has also been contended by learned senior counsel F
for A-1 that the evidence of an approver is very weak and
reliance has been placed on various decisions of this Court to
that effect. In the light of the provisions of Section 133 read with
Section 114 Illus (b) of the Evidence Act this Court has held
that the evidence of an approver needs to be corroborated in G
material particulars. The evidence of the approver has been
corroborated in material particulars by way of primary evidence
by the prosecution. The following table may summarise the
corroboration provided by various materials and evidence on
record:
H
238 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Sr. Deposition of PW-2 Corroborating Evidence
No.

1 Stay of co-accused and Entries in the Big Splash
Meeting at Hotel Big· Hotel (Register)
Splash by Tiger Memon Confession of co-accused
B
A-24, A-12, A-15, A-29
and A-64.

Employees of Hotel Big
Splash - PWs 141 and
c 304.

2 a) Participation in Isl Confession of co-accused
Landing-Unloading and A-14, A-17, A-64, A-16, A-
loading at Wagni Tower 12, A-29, A-15, PW-108
D and PW-137 (Watchman of
Wagini Tower), PW-145
(panch), PW-588 (1.0.)

b) Participation in llnd Confession of co-accused
landing -Stay at Persian A-64, A-16, A-100, A-24,
E Darbar Hotel-During A-58, A-14, A-17 and A-11
transportation -visit of 2 Art.-1. Entries in Hotel
Customs Officer. Register
by name M.V. Khan. Exh.
20.
F (A-14), A-82 and A-113.

3 Handing over of Tickets PWs-311, 341, 420
by A-1 Confession of A-46, A-67
and A-10.
G
4 Departure to Dubai and Exh. 21-A - Embarkation
from Dubai to Pakistan for Card (Emirates)
training Confession of A-100, A-
52, A-16 and A-32.
Immigration Officers-Bill-
H 1244
YAKUB ABDUL RAZAK MEMON v. STATE OF 239
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J]

5 Assumed names given to t:xs. 1243, 1L44, 1L4f, A
the trainee's co-accused 1245
A-52, A-100, A-32, A-36,
A-49, A-98, A-16, A-64, A-
29.
6 No checking at the time of Passport of A-77, Exh. B
arrival in Pakistan 1730
A-29 Exh. 1731.
A-98 Exh. 648
~

7 No checking at the time of Confession of co-accused
Departure from Pakistan A-39, A49, A-98, A-64, A-
c
52 and A-16.
8 Administration of Oath at Exh. 2487 - Tigers
Dubai by Tiger Memon presence at Dubai.
Exh. 2490 - Ayub's D
Passport.
Confesion of co-accused
A-64, A32, A-36, A-39, A-
49, A-98, A-52 and A-16.
9 Arrival in India Disembarkation Card-Exh. E
22 - Emirates and other
Disembarkation Card and
Immigration Officer.
10 Meeting at Taj Hotel Confession of co-accused
A-44
F

11 Meeting at the residence Confession of co-accused
of accused Mobina on A-32, A-52, A-49, A-13, A-
07. 03.1.993 64 and A-100.
12 Survey of Shiv Sena Confession of co-accused G
Bhavan and Sahar Airport A-100 and A-64.
13 Meeting at the residence Confession of co-accused
of Babloo A-64, 39, 16 and A-98.

H
240 SUPREME COURT REPORTS (2013] 15.S.C.R.

A 14 :::;e1ect1on ot targets vontess1on OT co-accused
A-64, 39, 16 and A-98.
15 Meeing at the residence Confession of co-accused
of Mobina A-52, 64, 100 and A-13.

B 16 Survey of Chembur Confession of co-accused
Refinery A-39.
17 Meeting at the residence Confession of co-accused
of Tiger Memon A-64, 13, 52, 100, 49 and
Distribution of Money A-29.
c 18 Departure of Tiger Memon Exh. 2487-Tiger's
Passport.
Confession of co-accused
A-10 and A-9.

D 19 Filing of ROX Confession of co-accused
A-57, 12, 39, 49, 64, 23
and A-43.
20 Planting at Shiv Sena Confession of A-16, PW-
Bhawan 11 and 12 identified Pw-2
E and A-16.
PW-469-SEM, Tl Parade.
Letter to FSL 2447, 2469.
FSL opinion 2447A, 2448.
21 Distribution of Confession of co-accused
F Handgrenades for throwing A-32, 36, 39, 52, Pws-5
at Mahim and 6 and PW-13.
22 Member of Maruti Van Seizure of Van-Pw-46 and
MFC-1972 with other PW-371.
co-accused
G
23 Presence at Tonk Confession of co-accused
A-20 and A-130.
24 Stay at Hotel Harry Palace- Art. 2
New Delhi in the name of Exh. 3.
H Nasir Khan. Natrai-Howrah Art. 3, Exh. 24.
YAKUB ABDUL RAZAK MEMON v. STATE OF 241
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J]

182. It is further contended by the appellant (A-1) that the A
statement of approver dated 25.06.1993 given to DCP
Bishnoi-(PW-193) was subsequently retracted in terms of a
letter dated 10.12.1993 and, accordingly, should not be relied
upon. The said statement has not been pressed into service
by the prosecution during the course of trial against any B
accused person including the appellant. PW-2 has himself
explained the episode leading to the drafting of the said
retraction and stated that the said statement was drafted at the
instance of one Hanif Kadawala and Samir Hingora. The
witness remained unshaken about the said aspect in the c
deposition. PW-2 was clear that he was told in jail by Hanif
Kadawala and Samir Hingora that unless PW-2 retracts his
statement they would finish him and his family. The following
extracts from the deposition are pertinent in this regard:

Para 142 of the cross-examination of PW-2 D

" ..... (The attention of the witness is drawn to one letter
tendered by Majeed Memon) "This letter has been written
by me at the instance of Hanif and Samir at the time I was
made to write my retraction by them. The letter is marked E
as Exh. D-1. This letter D-1 was got prepared as a rough
note on the basis of which my retraction was finalized on
10. 12. 1993. The application dated 10. 12. 1993 retraction
is marked as D-2. At the time in my examination in chief
on 21.07. 1995 whebn I stated before the court that Exh. F
D-2 was obtained from me by Hanif Kadawala and Samir
Hingora I did not mention that there was another letter or
letters obntained by them like the letter Exh. D-1. Witness
volunteers that there were two/three such letters prepared
and on the basis of all such letters the retraction Exh. D-2 G
was finalized and produced before the Court. I did not read
it but has written Exh. D-1 as dictated to me by Hanif
Kadawala and Samir Hingora. All these letters which were
prepared before the retraction D-1 were in possession of
accused Hanif Kadawala and Samir Hingora. I did not
H
242 SUPREME COURT REPORTS [2013] 15 S.C.R.

A want to die. Today I do not fear deasth. At this stage
witness complains to the Court that his family members
are receiving repeated threats and on Saturday i.e.
29.07.1995 in his jail mulaquat he was informed that the
family is receiving threats he suspects the threats are
B coming from Samir Hingora and Hanif Kadawala. The
witness wants the court to take necessary action."

Para 143

" ... It is not correct to say that no threats have been
C received by my family members and tht I am mentioning
this in the Court falsely." In my statement Exh. 25-A
recorded by DCP Bishnoi there is no mention on names
Hanif Kadawala and Samir Hingora because at that time
I was not concerned with them. Till Friday 28.07.1995 I did
D not tell about these letters like D-1 and others to any
authority or to the court as it was not asked. I had made a
complaint to the court. I have made an oral complaint 15/
20 days of filing the retraction Exh. D-2. I did not make any
complaint t the court as I was with the accused persons in
E jail and I was afraid of them."

Para 91

".... I sign in Hindi and English as per my choice. I can read
write and understand English ...... It is true that his
F application was written by me and is signed by me and it
was forwarded to the court. This application is written in
my hand. This application was not presented by me but it
was presented by hanif Kadawala and Samir Hingora. This
application was obtained from me against my wish. I did
G not complain of this to the court at any time till today. I did
not complaint to the Superintendent Ja'H about this
application that it has been obtained from me by the other
two accused against my wish either orally or in writing.

Para 233
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 243
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J]

"The contents of the retraction D-2 are not mine as it A
contains language and words of a qualified person
conversant with legal terminology. The retraction D-2 was
written by me during the day on 9-12-1993 and was
submitted in the court on 10-12-1993 through the Jailor.
This was written by me when I was with other accused B
persons in the circle. In my Retraction Exhibit D-2 there is
no reference of Samir Hingora nad Hanif kadawala ...... "

Ans: "I did not tell the court because I was kept with the
accused persons and was under their influence and
pressure".
c
Para 234 ... "It will be correct to say that Hanif Kadawala,
Samir Hingora and Abdul Hamid Birya these three
accused persons had filed an application before this court
on affidavit that I am demanding monies from them. I do D
not know what were the contents of the affidavit filed by
these three accused persons before this Couit. I was
informed by these accused persons that they are going to
file such an affidavit in the court before it was filed in the
court on 1-10-1993. The accused Abdul Hamid Birya was E
not in it and he did not tell me that he was going to file such
an affidavit. It is not correct to say that I demanded a huge
sum of money from hanif kadawala and samir hingora for
not becoming an approver. It is not correct to say that I also
told them if they do not give me money I will falsely F
implicate them. It is not true that for these reasons the
accused Hanif kadawala and Samir Hingora filed an
application on oath before this court on 1.10.1993. It is not
correct to say that similarly I have been demanding monies
from other accused persons otherwise I threatened them
G
of falsely implicating them in the case. It is not correct to
say that at the instance of police I was pressurizing the
accused persons to turn approver like me ........ "

In para 235 .... "It is not correct to say that prior to becoming
an approver I was trying to extract money from the other H
244 SUPREME COURT REPORTS [2013] 15 S.C.R.

A accused persons. It is not correct to say that as I did not
get Satisfactory response from the accused persons I
turned to the police expressing my willingness to become
an approver and negotiated terms and conditions with
them. It it not correct to, state that I made deliberate
B mistakes in my letter addressed to Mr. M.N.Singh i.e. Exh.
26 in order to keep my options open. It is not correct to
state that after making an half hearted attempt of becoming
an approver I again started demanding money from the
accused to decide on the names of involvement and non-
involvement in my evidence. It is not correct to state that
c immediately, prior to my evidence in the court and during
my evidence being recorded & I coerced or induced the
accused persons at the instance of police to turn approver
in the case like me and failed. It is not correct to state that
my evidence before the court and attribution of roles of
D
various accused persons is guided by this consideration."

Para 236 ... "It is not correct to state that retraction D-2 was
prepared by me with the assistance of co-accused persons
on my request and willing. It is not correct to state that I
E approached the accused S M Thapa, R K Singh and Mr.
Sayyed of the Customs Department by requesting them
to prepare an effective retraction. It is not correct to state
that retraction D-2 was read over and understood by me
and I willingly signed it in the presence of jailor for dispatch
F to this court."

Para 237 .... "It is correct to state that the co-accused
facing trial in this case were unhappy on my becoming an
approver. It is not correct to say that in order to convince
the accused persons that in reality I have not become an
G
approver and I have mislead the police by writing exhibit
26 in which I have deliberately made three important
mistakes and that the accused should be rest assured that
I am not an approver, I wrote the letter D-1 to be retained
as a documentary proof of the above fact with the
H accused."

•
YAKUB ABDUL RAZAK MEMON v. STATE OF 245
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
Para 238 .... "lt is not correct to state that on 28-9-1993 A
before I signed Exhibit 27 the order was not read over to
me or I read it. It is not correct to state that Hanif kadawala
and Samir Hlngora never threatened me at any time. It is
not correct to state that I did not write anything like D-2
under the threat or influence of Hanif and Samir. It is not B
correct to state that letter Exhibit D-1 is not a preparatory
note."

Para 243 .... "It is not true to say that my confession Exhibit
25-A is involuntary and my retraction Exhibit D-2 is C
voluntary. It is not true to say that my letter Exhibit D-1 is
true expression of events written by me in the said letter
on my own accord and independent of any external
influence. It is not true to say that it is not possible for any
co-accused to repeatedly give threats to other accused
and extract any writings spread over several days. It is not · D
correct to say that accused Hanif kadawala and Samir
Hingora never gave me any threats and never asked me
to write anything against my wish anytime. It is not true to
say that I am making false statement against Hanif and
Samir because they refused to pay monies demanded by E
me.''

183. It has been further contended by the appellant (A-1)
that there are variations in the statement given by PW-2 in
relation to the air tickets to Dubai. PW-2, in his examination- F
in-chief has clearly stated that the appellant (A-1) gave six air
tickets for Dubai to Javed Chikna (AA) on 11.02.1993, on the
instructions of Tiger Memon. This statement has been clarified
by PW-2 in his cross-examination where he confirms that "It did
not happen that Tiger Memon told Yakub Memon to give six air G
tickets to Asgar and Yakub Memon gave six air tickets to
Asgar. The air tickets were given to Javed Chikna by Yakub
Memon as told by Tiger Memon ... "It is wrongly recorded in my
statement Exhibit 25A. I cannot assign any reason why it is so
recorded." Further, PW-2 has clarified his statement and
H
246 SUPREME COURT REPORTS (2013] 15 S.C.R.

A asserted that it was the appellant (A-1) who gave the air tickets.
It is further submitted that there is no contradiction about the
fact that such a meeting amongst the co-conspirators took
place where the appellant (A-1) was present and he was asked
to provide the tickets. The contradiction pointed out by the
B defence does not go to the root of the matter and is not a
material contradiction.

184. In the light of the above discussion, we hold that the
evidence of PW-2 very clearly implicates the appellant (A-1) in
C respect of his involvement in the conspiracy.

Grant of Pardon under Section 306 of the Code to
Mohammed Usman Ahmed Zan Khan/(PW-2)/Approver

185. It was submitted by learned senior counsel for A-1
D that TADA is a complete Code containing provisions for setting
up of Designated Courts, conduct of trials, awarding of
punishment etc. The said Act does not contain any provision
for the grant of pardon as contained in the Code, namely,
Sections 306, 307 and 308. It was submitted by learned senior
E counsel that the power to grant pardon is a substantive power
and not a procedural power, and as such, the same has to be
conferred specifically and cannot be assumed to be an inherent
power of a Court. In the instant case, pardon has been granted
by the Chief Metropolitan Magistrate, Bombay to PW-2 though
there was no specific power of grant of pardon in TADA with
F the Chief Metropolitan Magistrate, and as such, the said pardon
is ultra vires the scheme of TADA and the evidence of the said
persons cannot be relied upon against the appellant.

186. In reply to the above contention, learned senior
G counsel for the CBI placed .reliance on a three-Judge Bench
.
f-

decision of this Court in Harshad S. Mehta & Ors. vs. State of
Maharashtra (2001) 8 SCC 257 wherein an identical objection
was raised, namely, in the absence of specific provisions for
grant of pardon, the Special Court has no power to grant pardon
H under Special Court (Trial of offences relating to prosecutions
YAKUB ABDUL RAZAK MEMON v. STATE OF 247
. MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

in Securities), Act, 1992. Taking note of various provisions of A
the Code, particularly, Chapter XXIV, this Court repelled the
said contention. Chapter XXIV of the Code deals with general
provisons as to inquiries and trials. Sections 306 and 307 of
the Code deal with tender of pardon to an accomplice. Section
306 confers power upon the Magistrate and Section 307 on 8
the Court to which commitment is made. Section 308 provides
for the consequences of not complying with the conditions of
pardon by a person who has accepted tender of pardon made
under Section 306 or Section 307. The relevant provisions of
the Code read as under: c
"306. Tender of pardon to accomplice.-(1) With a view
to obtaining the evidence of any person supposed to have
been directly or indirectly concerned in or privy to an
offence to which this section applies, the Chief Judicial
Magistrate or a Metropolitan Magistrate at any stage of the D
investigation or inquiry into, or the trial of, the offence, and
the Magistrate of the first class inquiring into or trying the
offence, at any, stage of the inquiry or trial, may tender a
pardon to such person on condition of his making a full and
true disclosure of the whole of the circumstances within his E
knowledge relative to the offence and to every other person
concerned, whether as principal or abettor, in the
commission thereof.

(2) This section applies to-
F
(a) Any offence triable exclusively by the Court of
Session or by the Court of a Special Judge
appointed under the Criminal Law Amendment Act,
1952 (46 of 1952).
G
(b) Any offence punishable with imprisonment,
which may extend to seven years or with a more
severe sentence.

H
248 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (3) Every Magistrate who tenders a pardon under sub-
section (1) shall record-

(a) His reasons for so doing;

(b) Whether the tender was or was not accepted by
B the person to whom it was made,

and shall, on application made by the accused, furnish him
with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under
c sub-section (1 )-

(a) Shall be examined as a witness in the court of
the Magistrate taking cognizance of the offence and
in the subsequent trial, if any;
D
(b) Shall, unless he is already on bail, be detained
in custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made
under sub-section (1) and has, been examined under sub-
E section (4), the Magistrate taking cognizance of the
offence shall, without making any further inquiry in the case.

(a) Commit it for trial-

(i) To the Court of Session if the offence is triable
F
exclusively by that court or if the Magistrate taking
cognizance is the Chief Judicial Magistrate;

(ii) To a court of Special Judge appointed under the
Criminal Law Amendment Act 1952 (46 of 1952),
G if the offence is triable exclusively by that court;

(b) In any other case, make over the case to the
Chief Judicial Magistrate who shall try the case
himself.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 249
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

307, Power to direct tender of pardon.-At any time A
after commitment of a case but before Judgment is
passed, the court to which the commitment is made may,
with a view, to obtaining at the trial the evidence of any
person supposed to have been directly or indirectly
concerned in, or privy to, any such offence, tender a pardon B
on the same condition to such person.

308. Trial of person not complying with conditions of
pardon.(1) Where, in regard to a person who has
accepted a tender of pardon made under section 306 or
section 307, the Public Prosecutor certifies that in his C
opinion such person has, either the condition on which the
tender was made, such person may be tried for the offence
in respect of which the pardon was so tendered or for any
other offence of which he appears to have been guilty in
connection with the same matter, and also for the-offence D
of giving false evidence:

Provided that such person shall not be tried jointly with any
of the other accused:
E
Provided further that such person shall not be tried for the
offence of giving false evidence except with the sanction
of the High Court, and nothing contained in section 195
or section 340 shall apply to that offence.

(2) Any statement made by such person accepiing the F
tender of pardon and recorded by a Magistrate under
section 164 or by a court under sub-section (4) of section
306 may be given in evidence against him at such trial.

(3) At suc~trial, the accused shall be entitled to plead that G
he has complied with the condition upon which such tender
was made, in which case it shall be for the prosecution to
prove that the condition has not been complied with.

(4) At such trial the court shall-
H
250 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (a) If it is a Court of Session, before the charge is
read out and explained to the accused;

(b) If it is the court of a Magistrate before the
evidence of the witnesses for the prosecution is
B taken, ask the accused whether he pleads that he
has complied with the conditions on which the
tender of pardon was made.

(5) If the accused does so plead, the court shall record the
plea and proceed with the trial and it shall, before passing
c judgment in the case, find whether or not the accused has
complied with the conditions of the pardon, and, if it finds
that he has so complied, it shall notwithstanding anything
contained in this Code, pass judgment of acquittal.

0 In the case on hand, it was also contended that grant of
pardon being a special power has to be conferred specifically.
After adverting to the above mentioned provisions of the Code
and in the absence of any specific exclusion or bar for the
application for grant of pardon by Special Courts in the Code,
E in Harshad S Mehta (supra), this Court has concluded "but it
does not necessarily follow therefrom that the power to tender
pardon under Sections 306 and 307 has not been conferred
on the Special Court". In para 22, the Court has held as under:

"22. The Special Court may not be a criminal court as
F postulated by Section 6 of the Code. All the same, it is a
criminal court of original jurisdiction. On this count the
doubt, if any, stands resolved by the decision of the
Constitution Bench of this Court in A.R. Antulay v. Ramdas
Sriniwas Nayak. In Antulay case the Constitution Bench
G said that shorn of all embellishment, the Special Court is
a court of original criminal jurisdiction and to make it
functionally oriented some powers were conferred by the
statute setting it up and except those specifically conferred
and specifically denied, it has to function as a court of
H original criminal jurisdiction not being hidebound by the
YAKUBABDUL RAZAK MEMON v. STATE OF 251
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]
terminological status description of Magistrates or a Court A
of Session. Under the Code, it will enjoy all powers which
a court of original criminal jurisdiction enjoys save and
except the ones specifically denied."

187. Posing these questions, the Bench analysed to see B
whether power to grant pardon has been specifically denied to
the Special Court established under the Act. The contention of
the learned senior counsel was that the Act does not postulate
commitment of the case to the Special Court and no provision
having been inserted in the Act to empower the Special Court C
to tender pardon, hence, the impugned order granting pardon
is without jurisdiction. In para 35, the Court has observed as
under:

"35. There cannot be any controversy that there is no
express provision in the Act excluding therefrom the D
applicability of Sections 306 and 307 of the Code. Can it
be said to be so, by necessary implication, is what we
have to determine."

The following conclusions are also relevant:
E
"51. The Code has been incorporated in the Act by
application of the doctrine of legislation by incorporation.
The power to grant pardon has not been denied expressly
or by necessary implication. As earlier stated after
decision in the case of A.R. Antulay it was not necessary F
to make specific provision in the Act conferring power on
the Special Court to grant pardon at trial or pre-trial stage.
The Special Court is a court of original criminal jurisdiction
and has all the powers of such a court under the Code,
including those of Sections 306 to 308 of the Code, the G
same not having been excluded specifically or otherwise.

52. There is no provision in the Act which negates the
power of the Special Court to grant pardon. The Special
Court has power to grant pardon at any stage of the
H
252 SUPREME COURT REPORTS [2013] 15 S.C.R.

A proceedings. The power under Section 307 cannot be
denied merely because no commitment of the case is
made to the Special Court. Learned Solicitor-General, in
our view, rightly contends that the other statutes are only
an external aid to the interpretation and to rely upon the
B omission of a provision which is contained in another
different enactment, it has to be shown that the two Acts
are similar which is not the position here. The scheme of
the two Acts is substantially different as has been earlier
noticed by us. It is also evident from Fernandes case as
c well''.

188. After arriving at such a conclusion, the Bench, in para
55 held as under:

"55. In the present case, we are unable to find either any
D inconsistency or any provision which may indicate
expressly or by necessary implication the exclusion of the
provision of the Code empowering grant of pardon."

After saying so, the Bench concluded as under:

E "62. Our conclusion, therefore, is that the Special Court
established under the Act is a court of exclusive
jurisdiction. Sections 6 and 7 confer on the court wide
powers. It is a court of original criminal jurisdiction and has
all the powers of such a court under the Code including
F those of Sections 306 to 308."

The above conclusion fully supports the stand taken by CBI
and the ultimate decision arrived at by the Designated Court.

189. It was argued by learned senior counsel appearing
G for the CBI that the word 'notwithstanding' appearing in various
provisions of TADA shows that the Code would apply to all
cases unless specifically provided for in the TADA. He placed
reliance on Section 4(2) of the Code which provides as follows:

H "All offences under any other law shall be investigated,
YAKUB ABDUL RAZAK MEMON v. STATE OF 253
MAHARASHTRA, THR CBI , BOMBAY [P SATHASIVAM, J]
inquired into, tried and otherwise dealt with according to A
the same provisions, but subject to any enactment for the
time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with
such offences."
B
The other decision relied upon by learned senior counsel
for the CBI to support his contention that the power of pardon
does exist by necessary implication to cases under TADA is
Lt. Commander Pascal Fernandes vs. State of Maharashtra
& Ors. (1968) 1 SCR 695 in which question relates to tendering C
pardon to a co-accused under Section 8(2) of the Criminal Law
Amendment Act of 1952. A three-Judge Bench of this Court,
even after finding that Special Judge created under the Criminal
Law Amendment Act, 1952 (Act 46 of 1952) is not one
established under the Code held, "For the cases triable by
Special Judges under Criminal Law Amendment Act, a special D
provision is to be found in Section 8(2) of that Act, for tender
of pardon to an accomplice, as part of the procedure and
powers of Special Judges" .......... On the tender of pardon by
the Special Judge the provisions of Sections 339 and 339-A
of the Code will apply". E

190. It was submitted on behalf of the appellant that even
if Section 306 of the Code is held to be applicable, power to
grant pardon could be exercised only by the Designated Judge
and not by the Chief Judicial Magistrate and as in the present F
case the power was exercised by the Chief Metropolitan
Magistrate and not by the Deisgnated TADA Judge, the said
exercise of power was illegal and renders the grant of pardon
bad in law. The above contentions of Mr. Jaspal Singh, learned
senior counsel for A-1 are not acceptable since several G
provisions in TADA clearly show that Code would apply to all
cases. In view of Section 4 of the Code, trial of all offences
under the Indian Penal Code or any other laws including TADA
have to be investigated, enquired into, tried and dealt with
according to the provisons contained in the Code which read
H
as under:
254 SUPREME COURT REPORTS [2013] 15 S.C.R.

A "4.Trial of offences under the Indian Penal Code and
other laws. -(1) All offences under the Indian Penal Code
(45 of 1860) shall be investigated, inquired into, tried, and
otherwise dealt with according to the provisions hereinafter
contained.
B
(2) All offences under any other law shall be investigated,
inquired into, tried, and otherwise dealt with according to
the same provisions, but subject to any enactment for the
time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with
c such offences."

Section 4(2) of the Code makes it clear that all the
offences under any other law shall be investigated, inquired
into, tried and dealt with according to the provisons of the
D Code but subject to specific clause/reference of the
Special Act. It is also clear from Section 5 of the Code that
in the absence of specific provisons in any enactment, the
provisions of the Code shall govern for the purpose of
investigation, enquiry etc. As per Section 2(1 )(b) of the
E TADA, 'Code' means the Code of Criminal Procedure,
1973 (2 of 1974). Section 7(3) of TADA makes it clear that
the provisions of the Code shall, sofaras may be and
subject to such modification made in the Act, apply to the
exercise of powers by the officer under sub-Section 1.
F Section 7(1) of TADA makes it futher clear that
notwithstanding anything contained in the Code or in any
other provision of this Act (TADA), the Central Government,
for proper implementation of the provisions of the Act
confers upon any officer, the power to investigate and
proceed under the Act. As per Section 9, the Central
G
Government or the State Government may, by notification
in the Official Gazette, constitute one or more Designated
Courts for such area or areas or for such class or classes
or group of persons by specifying in the Notification.
Procedure and power for Designated Courts have been
H mentioned in Section 14 of TADA. Section 14(2) makes
YAKUB ABDUL RAZAK MEMON v. STATE OF 255
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
it clear that if any offence is punishable with imprisonment A
for a term not exceeding three years or with fine or with
both, the Designated Court may, notwithstanding anything
contained in sub-Section 1 of Sections 260 or 262 of the
Code, try the offence in a summary way in accordance with
the procedure prescribed in the Code and the provisions B
of Sections 263 to 265 of the Code shall apply to such trial.
Section 14(3) of TADA specifically confers upon the
Designated Court all the powers that can be exercised by
a Court of Sessions under the Code which includes the
power to grant pardon under Section 306 of the Code. c
Section 14 of TADA provides as follows:

"14. Procedure and powers of Designated Courts. -
A Designated Court may take cognizance of any offence,
without the accused being committed to it for trial, upon
receiving a complaint of facts which constitute such D
offence or upon a police report of such facts.

(2) Where an offence triable by a Designated Court is
punishable with imprisonment for a term not exceeding
three years or with fine or with both, the Designated Court E
may, notwithstanding anything contained in sub-section (1)
of Section 260 or Section 262 of the Code, try the offence
in a summary way in accordance with the procedure
prescribed in the Code and the provisions of Sections 263
to 265 of the Code, shall, so far as may be, apply to such F
trial:

Provided that when, in the course of a summary trial under
this sub-section, it appears to the Designated Court that
the nature of the case is such that it is undesirable to try it
in a summary way, the Designated Court shall recall any G
witnesses who may have been examined and proceed to
re-hear the case in the manner provided by the provisions
of the Code for the trial of such offence and the said
provisions shall apply to and in relation to a Designated
Court as they apply to and in relation to a Magistrate: H
256 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Provided further that in the case of any conviction in a
summary trial under this section, it shall be lawful for a
Designated Court to pass a sentence of imprisonment for
a term not exceeding two years.

(3) Subject to the other provisions of this Act, a Designated
8
Court shall, for the purpose of trial of any offence, have
all the powers of a Court of Session and shall try such
offence as if it were a Court of Session so far as may be
in accordance with the procedure prescribed in the Code
for the trial before a Court of Session.
c
(4) Subject to the other provisions of this Act, every case
transferred to a Designated Court under sub-section (2)
of Section 11 shall be dealt with as if such case had been
transferred under Section 406 of the Code to such
D Designated Court.

(5) Notwithstanding anything contained in the Code, a
Designated Court may, if it thinks fit and for reasons to be
recorded by it, proceed with the trial in the absence of the
accused or his pleader and record the evidence of any
E
witness, subject to the right of the accused to recall the
witness for cross-examination.

Section 18 also makes it clear that after taking
congnizance of any offence, if the Designated Court is of the
F opinion that the offence is not triable by it or it shall
notwithstanding that it had no jurisdiction to try such offence,
transfer the case for the trial of such offence to any Court having
jurisdiction under the Code and the Court to which the case is
transferred may proceed with the trial of offence as if it had
G taken cognizance of the offence. Section 20 of the Act makes
it clear that certain provisions of the Code are automatically
applicable and the Designated Court is free to apply those
provisions from the Code for due adjudication of the cases
under the Act. So, from the above, it is clear that no provision
H of TADA is inconsistent with the provisions of the Code of
YAKUB ABDUL RAZAK MEMON v. STATE OF 257
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

Criminal Procedure, 1973, for grant of pardon as envisaged A
under Sections 306 to 308. While upholding the power of the
special courts established under a Special Courts Act to grant
pardon under Section 306 of the Code, this Court, in Harshad
S. Mehta (supra) held thus:
B
"61 .... It is also not possible to accept that it was intended
by necessary implication that the Special Court under the
Act shall not have the power to grant pardon. All powers
of Sections 306 to 308 to the extent applicable and can
be complied are available to the Special Court under the C
Act. The provisions of the Act and the Code can stand
together. There is no inconsistency. The two statutory
provisions can harmoniously operate without causing any
confusion or resulting in absurd consequences and the
scheme of the Code can, without an'y difficulty, fit in the
scheme of the Act.. .. " D

Further, TADA does not preclude the applicability of
Section 306 of the Code. As observed earlier, Section
306(2)(b) is clear in that it is specifically applicable to instances
where the offence for which an accused is being tried is E
punishable with imprisonment extending to seven years or
more. In the instant case, the approver was accused of offences
which carried the maximum punishment as capital punishment.

191. The object of Section 306 is to tender pardon in
F
cases where a grave offence is alleged to have been
committed by several persons so that the offence could be
brought home with the aid of evidence of the person pardoned.
The legislative intent of this provision is, therefore, to secure
the evidence of an accomplice in relation to the whole of
circumstances, within his knowledge, related to the offence G
and every other person concerned. In the light of the above
analysis, we hold that the power to grant pardon under Section
306 of the Code also applies to the cases tried under the
provisions of TADA and there was no infirmity in the order
H
258 SUPREME COURT REPORTS [2013] 15 S.C.R.

A
granting pardon to the approver (PW-2) in the facts and
circumstances of the present case.

192. It is further contended on behalf of the appellant (A-
1) that the deposition of PW-2 cannot be relied upon since the
B procedure laid down in Section 306(4)(a) of the Code was not
followed. In the instance case, the CMM granted pardon to PW-
2 on 28.09.1993 in compliance with the provisions of Section
306. Section 306(4)(a) requires that the Court of Magistrate
taking cognizance of the offence shall examine the witness. In
C the instant case, where appellant has been charged with the
offences under TADA, the Designated Court established under
TADA alone has the jurisdiction to take cognizance of the
offences under TADA. Section 14 of TADA provides that a
Designated Court may take cognizance of any offence, without
D the accused being committed to it for trial, upon receiving a
complaint of facts which constitute such an offence or upon a
police report of such facts. Section 306(5) contemplates
committal of a case by the Magistrate taking cognizance of the
offence to the court of appropriate jurisdiction. In the instant
E case, there did not arise an occasion for the Magistrate to
commit the case to the Designated Court by virtue of above-
said provision contained under Section 14 of TADA whereby
the Designated Court had jurisdiction to take cognizane and
try the offences in TADA. 193) This Court, in Sardar Iqbal
F Singh VS. State (Delhi Admn.) (1977) 4 sec 536 while dealing
with a case where the offence was triable by the Special Judge
who also took cognizance of the offence and like the present
case, no committal proceedings were involved, held as under:

"5. From these provisions it would appear that where a
G person has accepted a tender of pardon under sub-section
(1) of Section 337 at the stage of investigation in a case
involving any of the offences specified in sub-section (2-
B), the prosecution can file the chargesheet either in the
Court of a competent Magistrate or before the Special
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 259
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]

Judge who under Section 8(1) of the Criminal Law A
Amendment Act, 1952 has power to take cognizance of
the offence without the accused being committed to him
for trial. It follows that if the Magistrate takes cognizance
of the offence, the approver will have to be examined as
a witness twice, once in the Court of the Magistrate and B
again. in the Court of the Special Judge to whom the
Magistrate has to send the case for trial, but if the
chargesheet is filed directly in the Court of the Special
Judge, he can be examined once only before the Special
Judge. This means that in a case where the chargesheet c
is filed in the Court of a Magistrate, the accused gets an
opportunity of having the evidence of the approver at the
trial tested against what he had said before the Magistrate;
the accused is denied this opportunity where the
chargesheet is filed in the Court of the Special Judge.
D
Whether the accused will get the advantage of the
procedure which according to the appellant is more
beneficial to the! accused, thus depends on the Court in
which the proceeding is initiated, and, it is contended, if
the choice of forum is left to the prosecution, it will result
E
in discrimination. Mr Sen submits that the only way to avoid
this position is to read sub-sections (1 ), (2) and (2-B) of
Section 337 of the Code and Section 8(1) of the Criminal
Law Amendment Act, 1952 together and to construe them
in a way to require that in every case where an accomplice
is granted pardon, the chargesheet must be filed in the F
Court of a Magistrate.

6. We are unable to accept the contention. It is clear from
the scheme of Section 337 that what is required is that a
person who accepts a tender of pardon must be examined G
as a witness at the different stages of the proceeding.
Where, however, a Special Judge takes cognizance of the
case, the occasion for examining the approver as a
witness arises only once. It is true that in such a case there
would be no previous evidence of the approver aga·inst H
260 SUPREME COURT REPORTS [2013] 15 S.C.R.

A which his evidence at the trial could be tested, which would
have been available to the accused had the proceeding
been initiated in the Court of a Magistrate who under sub-
section (2-B) of Section 337 of the Code is required to
send the case for trial to the Special Judge after examining
B the approver. But we do not find anything in sub-section
(2-B) of Section 337 to suggest that it affects in any way
the jurisdiction of the Special Judge to take cognizance
of an offence without the accused being committed to him
for trial. Sub-section (2-B) was inserted in Section 337 in
c 1955 by Amendment Act 26 of 1955. If by enacting sub-
section (2-B) in 1955 the Legislature sought to curb the
power given to the Special Judge by Section 8(1) of the
Criminal Law Amendment Act, 1952, there is no reason
why the Legislature should not have expressed its intention
clearly. Also, the fact that the approver's evidence cannot
D
be tested against any previous statement does not seem
to us to make any material difference to the detriment of
the accused transgressing Article 14 of the Constitution.
The Special Judge in any case will have to apply the well
established tests for the appreciation of the accomplice's
E
evidence. This Court in Maganlal Chhagganlal (P) Ltd. v.
Municipal Corporation of Greater Bombay held that the
mere availability of two procedures would not justify the
quashing of a provision as being violative of Article 14 and
that "what is necessary to attract the inhibition of the article
F is that there must be substantial and qualitative difference
between the two procedures so that one is really and
substantially more drastic and prejudicial than the other ..
.". In our opinion, there is no such qualitative difference in
the two procedures; whether a witness is examined once
G or twice does not in our opinion make any such substantial
difference here that one of them could be described as
more drastic than the other. The appeal is accordingly
dismissed.

194. In view of the above discussion and the ratio
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 261
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

decidendi of the decisions of this Court, we are of the view that A
the provisions of sub-Section 4 of Section 306 have not been
violated and there is no illegality in not having examined the
approver twice by the Designated Court.

Other witnesses:
B
Evidence ofShri P K. Jain (PW-189)

195. He joined Maharashtra Police in January 1983 as an
Assistant Superintendent of Police. He was promoted as
Superintendent of Police in April 1985. The rank of c
Superintendent was equivalent to the rank of. Deputy
Commissioner of Police (DCP) in Greater Bombay. He is
conversant and well versed with English, Hindi, Marathi and
Punjabi languages and according to him, he is able to speak,
read and write the said four languages. Since January 1993, D
he was posted as DCP, Zone IX, Bombay. In February 1993,
Zone IX of Bombay was re-named as Zone X and he functioned
as DCP for Zone X up till August, 1994. He recorded the
confessional statement of 96 accused persons in this case.
First, he recorded the confessional statement of A-11. He
E
explained before the Court the relevant provisions of TADA for
recording a confession, procedure to be followed etc. He also
deposed before the Court that before recording a confession,
he used to receive a letter of requisition for the same. He also
explained that on each and every occasion, he explained his
position to the accused who intended to make a confession and F
apprised him of the fact that there was no compulsion on the
part of the accused to make a confessional statement and also
informed the Court that he had also explained to the accused
that the confession would be used against him. He further
explained that upon the production of each accused, he verified G
that the accused was not under compulsion and was free from
any pressure either by the investigating agency or by anyone
else. He also informed the Court that after highlighting all the
procedures and satisfying himself, he allowed every accused
to have 48 hours breathing time and asked the accused H
262 SUPREME COURT REPORTS [2013] 15 S.C.R.

A concerned that still if he was desirable to make such a statement
he was free to appear before him in his office. His evidence
also shows that whenever such accused was produced, he
used to verify that no police personnel or anybody else was
present inside his Chamber and recorded his confessional
B statement after closing the door and only after proper
. verification. He also informed the Court that every accused who
has made a statement before him was apprised of the fact of
his position i.e. DCP, Zone X. After making sure that the
accused understood his position and after verifying the
C language, in which he desired to make a statement, recorded
the same in his own handwriting. He also explained that no
accused had raised any complaint/grievance against any
police officer or police in general. He also said that he had
asked all the accused who confessed before him "whether he
was under any fear or pressure or given any inducement for
D making the confession". After completion of his recording in his
own handwriting and after explaining the same to the accused
in the language known to him, he obtained the signature of the
accused on all the pages. After satisfying the accused about
confessional statement made and the procedure followed, he
E used to handover the custody of the said accused to the police
officer concerned. Thereafter, the recorded confessions were
sealed in one envelope and after preparing a covering letter,
the same were sent to Chief Metropolitan Magistrate. According
to him, he also obtained the acknowledgement for receipt of
F the same in the said Court through his subordinate officers. He
also informed the Court that by following the said elaborate
procedure, he recorded the confessional statements of various
accused, viz., A-11, A-67, A-17, A-12 and A-9. He also
informed the Court that he had issued the necessary certificate
G as required under Rule 15 of the Rules. He also issued a
certificate regarding the voluntariness of the confession made
by the accused and the correctness of the record of the same
prepared by him. He also signed below the said certificates.
He also produced and marked the letters of requisition
H received by him from various Investigating officers for recording
YAKUB ABDUL RAZAK MEMON v. STATE OF 263
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

the confession. A

196. In the cross-examination, he specifically informed the
Court that he had not investigated any offence under TADA. He
also clarified that in his Zone i.e. Zone-X, none of the bomb
explosions had occurred and that no case was registered with
B
regard to the same. He also stated that he was not asked to
carry out any investigation in connection with LAC Case No.
389 of 1993 registered with Worli Police Station and according
to him, the area under Worli Police Station does not fall within
the jurisdiction of Zone X.
c
197. With regard to the allegation that confession was
recorded in the Police Station, he explained that he had
recorded the confession in the Chamber of DCP, Zone IV, at
Matunga. According to him, the said office is situated in the
building in which Matunga Police Station is also housed. D
However, he explained that the office of DCP, Zone IV is on
the fourth floor of the said building. For a further query, he also
clarified that Zone IV office is different office then the Matunga
Police Station. He asserted that he had followed the
procedures mentioned in the Rules and instructions while E
making the record of confession of all the accused whose
confession were recorded by him.

Evidence of Shri K.L. Bishnoi (PW-193)

198. According to him, he had joined the Police F
Department in January, 1986 as an Assistant Superintendent
of Police. He was promoted as Superintendent of Police in
January, 1990 and was posted at Latur as Superintendent of
Police. He was posted as DCP in Bombay from April, 1992,
up till December, 1995. He worked in Bombay City in various G
categories. He also informed the Court that the post of
Superintendent of Police in District is equivalent to Deputy
Commissioner of Police (DCP) in Commissionarate area. He
admitted that he had supervised one case registered with Worli
Police Station then under his jurisdiction and one crime H
264 SUPREME COURT REPORTS [2013) 15 S.C.R.

A registered in connection with the serial bomb blasts which had
occurred in the month of March, 1993. He had recorded
confessions of several accused persons arrested in the year
1993 in connection with the offences for which the crimes were
registered in respect of the bomb blasts which had occurred
8 in the month of March, 1993 in Bombay.

199. He explained before the Court the relevant provisions
of TADA for recording a confession, procedure to be followed
etc. He also deposed before the Court that before recording a
confession, he used to receive a letter of requisition for the
C same. He also explained that on each and every occasion he
had explained his position to the accused who intended to
make a confession and had apprised him of the fact that there
is no compulsion on the part of the accused to make a
confessional statement and also informed the Court that he had
D also explained to each accused that the confession would be
used against him and there was no compulsion. to make such
a statement. He further explained that upon production of each
accused, he verified that the accused was not under
compulsion and was free from any pressure either by the
E investigating agency or by anyone else. He also informed the
Court that after highlighting all the procedures and satisfying
himself, he allowed the accused to have 48 hours breathing time
and asked the accused concerned that still if he was desirable
to make such a statement, he was free to appear before him
F in his office. His evidence also shows that whenever such
accused were produced, he would verify that no police
personnel or anybody else was present in his Chamber and
recorded the confessional statements after closing the door and
after proper verification that nobody was there inside. He also
G informed the Court that every accused who made a statement
was apprised of the fact of his position i.e., DCP. After making
sure that the accused understood his position and after verifying
the language in which he desired to make a statement, he
recorded the same in his own handwriting. He was also used
H to tell the respective accused that during the said period of two
YAKUB ABDUL RAZAK MEMON v. STATE OF 265
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
days i.e., 48 hours, he would be kept at other Police Station A
away from the influence of 1.0.

200. He further explained that he used to write the question
after asking the same to the accused and record the answer
to the said question after the same was given by the accused. 8
He further made it clear that he was following the same
procedure while making the record on the typewriter instead
of writing the questions asked, he was dictating the same to
the typist. After recording in the aforesaid manner, he would
read over the whole confessional statement to the accused in
the language known to him. He would also obtain signatures
c
on all the pages of the concerned accused. After satisfying the
accused about the confessional statement made and the
procedure followed, he would handover the custody of the said
accused to the police officer concerned. Thereafter, the
recorded confessions were sealed in one envelope and after D
preparing a covering letter, the same were sent to the Chief
Metropolitan Magistrate. According to him, he also obtained
the acknowledgement for receipt of the same in the said Court
through his subordinate officers. He also informed the Court that
by following the said elaborate procedure, he recorded the E
confessional statements of the following accused, namely, Gui
Mohammed (A-77), Asgar Yusuf Mukadam (A-10), Dawood
Phanse (A-14), Shaikh Ali (A-57), Mobina (A-96), lmtiyaz
Ghavate (A-15), Sanjay Dutt (A-117), Nulwala, Kersi Bapu
Adejania, Mohammed Usman Jan Khan (PW-2) and Raju Kadi F
(A-26).

201. In respect of a question asked regarding whether
during the relevant period he was not only supervising the
investigation of the said case (LAC No. 381 of 1993) but also G
coordinating the investigation, he admitted to the same. In para
584 of his evidence, in reply, he admitted that he had the
recorded confessions of accused A-14, A-10 and Sujat Alam
in a period when he was supervising the investigation of the
case against them. However; he clarified that the public
H
266 SUPREME COURT REPORTS [2013] 15 S.C.R.

A prosecutor has produced and marked an order dated
22.04.1993 passed by the Joint Commissioner of Police.
regarding the overall supervision of investigation of the Bombay
Bomb Blast case being given to the DCB (CID).

B Recording of Confessions by Police Officers:

202. Further, it is contended that confessions recorded
before the Police Officers should be discarded since the same
were recorded by the officers who were also supervising the
investigation. To this, the prosecution pointed out that in the
C instant case, the confessions of the accused have been
recorded after following all the safeguards as enumerated under
Section 15 of TADA and the rules framed thereunder. It is
further pointed out that the appellants have volunteered to
confess their role in the crime and they were aware of the fact
D that they were under no compulsion to make a confession and
that the same could be used against them. Further, this Court,
in S.N. Dube vs. N.B. Bhoir, (2000) 2 SCC 254 negated a
similar contention and held that no illegality or impropriety
persists in recording of a confession by an officer supervising
E the investigation:

"28. The confessions have been held inadmissible mainly
on two grounds. The first ground given by the learned trial
Judge is that the power under Section 15 of the TADA Act
was exercised either mala fide or without proper
F application of mind. The second ground on which they are
held inadmissible is that they were recorded in breach of
Rules 15(2) and 15(3) of the TADA Rules and also in
breach of the requirements of Section 164 and the High
Court Criminal Manual. The learned trial Judge held that
G the TADA Act was applied in this case without any
justification. The permission was granted in that behalf
without any application of mind. According to the trial court
there was no material on the basis of which the TADA Act
could have been invoked at that stage and that most
H probably the said Act was invoked in order to defeat the
YAKUB ABDUL RAZAK MEMON v. STATE OF 267
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
bail application filed by two accused in the High Court. In A
our opinion the trial court was wrong in taking this view.
We have already pointed out earlier that Deshmukh had
collected enough material on the basis of which
reasonable satisfaction could have been arrived at that the
acts committed by the two gangs were terrorist acts. It is B
no doubt true that it was wrongly reported by Deshmukh
that Section 5 was also applicable in this case and that
without proper verification sanction was granted to
proceed under that section also. The applicability of
Section 5 depended upon the existence of a requisite C
notification by the State Government. It was wrongly
reported by Pl Deshmukh in his report that such a
notification was issued and relying upon his statement the
higher officer had given the sanction. Merely on this ground
it cannot be said that Shinde has exercised the power
under Section 15 of the TADA Act mala fide. The learned D
trial Judge has also held that it was not fair on the part of
Shinde to record the confessions as he was also
supervising the investigation. Shinde has clearly stated in
his evidence that he had made attempts to find out if any
other Superintendent of Police was available for recording E
the confessions and as others had declined to oblige him
he had no other option but to record them. We see no
illegality or impropriety in Shinde recording the confessions
even though he was supervising the investigation. One
more flimsy reason given by the trial court for holding that F
the power under Section 15 was exercised mala fide is
that the accused making the confessions were not told that
they had been recorded under the TADA Act. No such
grievance was made by the accused in their statement
under qection 313. On the other hand, it appears from the G
confessions themselves that the accused were made
aware of the fact that those confessions were recorded
under the TADA Act.

H
268 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 203. Further in Mohd. Amin vs. CBI, (2008) 15 SCC 49,
this Court held as under:

"61. The question whether confessions of Appellants A-4
to A-8 and A-10 should be treated as non-voluntary and
held inadmissible on the ground that the same were made
B before the officers who were supervising the investigation
deserves to be considered in the backdrop of the following
facts:

(i) Each of the confessing appellants had volunteered to
c confess his role in the crime.

0i) Their confessions were recorded strictly in accordance
with the manner and procedure prescribed in Section 15
of the Act and Rule 15 of the Rules.
D (iii) In reply to the questions put by Shri A.K. Majumdar and
Shri Harbhajan Ram, each of the confessing appellants
replied that he was aware of the fact that he was under no
compulsion to make confession and that the same can be
used against him and that there was no threat, coercion
E or allurement for making confession.

(iv) When Appellant A-10 was produced before the Chief
Metropolitan Magistrate, Delhi on 25-7-1996, he did state
that he has not made any confessional statement but did
F not utter a word about any threat, coercion, inducement or
allurement by Shri Harbhajan Ram (PW 103) for making
confession.

(v) At the end of the period specified in transit warrants,
all the confessing appellants were produced before the
G Magistrate concerned at Ahmedabad with an application
for their remand to judicial custody. None of them made
any grievance of ill-treatment, torture (physical or mental),
inducement or allurement by the investigating officers or
supervising officers or claimed that he had made
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 269
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

confession under any other type of compulsion. Even when A
they were in judicial custody, none of the appellants made
a grievance that he was tortured, threatened or coerced
by the investigating officers or supervising officers or that
any allurement was given to him to make the confession.
8
(vi) All the confessing appellants were facing trial in a
number of other cases [this is evident from the statement
of PW 100, Mr Satyakant, the then Deputy Inspector
General of Police, CID, Crime (Ext. 430)] in which they
were duly represented by advocates but till the recording C
of the statements under Section 313 CrPC, neither they
nor their advocates made a grievance regarding denial of
legal assistance or alleged that any threat was given to
either of them or they were subjected to physical or mental
torture or that undue influence was exercised by the
investigating officers or the supervising officers or any D
allurement was given for the purpose of making
confession.

62. Both the investigating officers, namely, Shri R.K. Saini
(PW 122) and Shri O.P. Chatwal (PW 123) were subjected E
to lengthy cross-examination. Shri R.K. Saini denied the
suggestion that Appellant A-10 Salimkhan was never
willing to give any confessional statement and his
statement was not recorded. He also denied the
suggestion that Appellant A-1 O had complained to the F
Chief Metropolitan Magistrate that he was ill-treated by the
officers while in custody. In his cross-examination, Shri
O.P. Chatwal (PW 123) categorically denied the
suggestion that Shri A.K. Majumdar had instructed him to
ill-treat the accused. He further stated that none of the
G
accused was ill-treated mentally or physically by CBI. Shri
Chatwal also denied the suggestion that the confessional
statements of the accused were prepared by him and their
signatures were obtained on the same. In reply to another
question, he denied that the accused had sought for the
presence of advocate but the same was declined.
H
•
270 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 63. In their statements, PW 103 Shri Harbhajan Ram and
PW 104 Shri A.K. Majumdar explained the details of the
mode and manner in which confessions of the accused
were recorded. Both of them categorically stated that
before recording confession each of the accused was told
B that he is not bound to make confession and that the same
can be used against him and whether there was any threat,
coercion or allurement for making confession. According
to the two witnesses, each of the accused expressed
unequivocal willingness to confess his role in the crime by
c stating that he knew that the confession can be used
against him, that there was no threat, coercion or
allurement and that he was making confession voluntarily.

64. According to PWs 103 and 104, the statements of the
accused were recorded by the stenographers verbatim
D and each one of them appended signatures after satisfying
that the same was correctly recorded. In reply to the
suggestion made to him in cross-examination that the
accused had been subjected to torture, PW 104
categorically stated that none of the accused was ill-treated
E by him or any other officer/official. The defence had made
suggestion about the nature and extent of supervision
exercised by PW 104 but it was not put to them that either
instructed the investigating officers to torture the accused
and forced them to confess their guilt. In this view of the
F matter, the confessions of Appellants A-4 to A-8 and A-
10 cannot be held inadmissible on the premise that before
recording of confessions they were in police custody and
the statements were recorded by the officers supervising
the investigation."
G
204. Similarly, in Lal Singh vs. State of Gujarat, (2001) 3
SCC 221, this Court was pleased to observe:

"91. The next contention that Rule 15 of the TADA Rules
has not been followed also does not carry any weight. For
H this purpose, we would refer to the evidence of PW 128,
YAKUBABDUL RAZAK MEMON v. STATE OF 271
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]
PW 132 and PW 133. PW 128 Satishchandra A
Rajnar~nlal, who was SP, CBI II, Punjab Cell at New
Delhi in··4992 stated that he registered the offence RC No.
6-Sll/92. He recorded the confessional statements of A-1
Lal Singh, Ext. 620 and A-3 Tahir Jamal, Ext. 618 along
with other accused. Before recording confessional B
statements, he ascertained from every accused whether
they were voluntarily ready to give confessional statements.
Necessary qw?stions were purto them and time was given
to them to think over the matter. After being satisfied that
they were willing to give voluntary confessional statements, c
he recorded their confe.ssional statements. PW 132
Padamchandra Laxmichandra Sharma, who was SP, CBI,
SIC II at the relevant time stated that when he took over
the charge of this case RC No. 6-(S)/92 from Mr
Satishchandra, this case was in the last phase. Deputy SP,
D
CBI, D.P. Singh (PW 136) had produced A-2 Mohd.
Sharief and A-20 Shoaib Mukhtiar before him on 8-7-1993
and 6-2-1994 for recording their voluntary confessional
statements, which are Ext. 650 and Ext. 654 respectively.
Before recording their statements, he warned them of the
consequences of making confessional statements and E.
further gave them time to think over the matter. On being
satisfied that they wanted to give confessional statements,
he recorded their statements. PW 133 Sharadkumar
Laxminarayan, DIG Police, CBI, SIC II Branch, New Delhi
stated that in the year 1992 he was SP in the same branch F
at New Delhi. On 5-11-1992 he was directed by DIG M.L.
Sharma to proceed to Ahmedabad in order to record
statement of A-4 Saquib Nachan under Section 15 of the
TADA Act. On 6-11-1992 after reaching at Ahmedabad,
Saquib Nachan was produced before him. He put G
necessary questions to A-4 Saquib Nachan. Before
recording confessional statement, he ascertained from him
whether he was voluntarily ready to give confessional
statement and warned him that if he made confessional
statement, the same can be used against him. He also H
272 SUPREME COURT REPORTS (2013] 15 S.C.R.

A apprised the accused that he is not bound to make such
statement. When the accused replied that he wanted to
make clean admission of guilt, he recorded the
confessional statement of A-4 Saquib Nachan. From the
above evidence, it is clear that Rule 15 was fully followed
by the witnesses, who recorded the confessional
B
statements of accused.

Observations made in para 23 are also noteworthy:

"23. In view of the settled legal position, it is not possible
c to accept the contention of learned Senior Counsel Mr
Sushi! Kumar that as the accused were in police custody,
the confessional statements are either inadmissible in
evidence or are not reliable. Custodial interrogation in such
cases is permissible under the law to meet grave situation
D arising out of terrorism unleashed by terrorist activities by
persons residing within or outside the country. The learned
counsel further submitted that in the present case the
guidelines suggested by this Court in Kartar Singh were
not followed. In our view, this submission is without any
basis because in the present case confessional statements
E
were recorded prior to the date of decision in the said case
i.e. before 11-3-1994. Further, despite the suggestion
made by this Court in Kartar Singh case, the said
guidelines are neither incorporated in the Act nor in the
Rules by Parliament. Therefore, it would be difficult to
F accept the contention raised by learned counsel for the
accused that as the said guidelines are not followed,
confessional statements even if admissible in evidence,
should not be relied upon for convicting the accused.
Further, this Court has not held in Kartar Singh case that
G if suggested guidelines are not followed then confessional
statement would be inadmissible in evidence. Similar
• contention was negatived by this Court in S.N. Dube v.
N.B. Bhoir by holding that a police officer recording the
confession under Section 15 is really not bound to follow
• H
YAKUB ABDUL RAZAK MEMON v. STATE OF 273
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J]
any other procedure and the rules or the guidelines framed A
by the Bombay High Court for recording the confession by
a Magistrate under Section 164 CrPC; the said guidelines
do not by themselves apply to recording of a confession
under Section 15 of the TADA Act and it is for the court to
appreciate the confessional statement as the substantive B
piece of evidence and find out whether it is voluntary and
truthful. Further, by a majority decision in State v. Nalini the
Court negatived the contentions that confessional
statement is not .a substantive piece of evidence and
cannot be used against the co-accused unless it is c
corroborated in material particulars by other evidence and
the confession of one accused cannot corroborate the
confession of another, by holding that to that extent the
provisions of the Evidence Act including Section 30 would
not be applicable. The decision in Nalini case was D
considered in S.N. Dube case. The Court observed that
Section 15 is an important departure from the ordinary law
and must receive that interpretation which would achieve
the object of that provision and not frustrate or truncate it
and that the correct legal position is that a confession
recorded under Section 15 of the TADA Act is a
E
substantive piece of evidence and can be used against a
co-accused also."

205. A perusal of the evidence of both the officers who
recorded the confession of the accused clearly show that they F
were aware of the procedure to be followed before recording
the confession of the accused and how the same is to be
recorded. We are satisfied that before recording the
confessional statements both the officers apprised the accused
persons who wished to make the same that there is no G
compulsion on their part to make a confessional statement and
thus also apprised them that the confessions would be used
against them. It is also clear from their evidence that both of
them had specifically verified whether such persons were under
coercion, threat or promise at the time of making confession H
274 SUPREME COURT REPORTS [2013] 15 S.C.R.

A and all of them were given adequate time to think it over and
make a confessional statement. It is also clear that after
recording their confession, the same was explained to them in
the language known to them and in token of the same, they put
their signatures and the officers' counter signed the same.
B Though in the cross-examination, both of them have admitted
certain procedural violations, in the case of one or two persons,
however, the verification of their entire evidence and the
confessional statements of the accused concerned clearly show
that there is no flagrant violation of any procedure. We are
c satisfied that the Designated Court was fully justified in relying
upon the evidence of PW-189 and PW-193.

Special Executive Magistrates (SEM):

206. A contention was also raised that the SEMs were not
D Judicial Magistrates and their appointment was not made in
accordance with law. It was contended that the SEMs who
conducted the parades were not eligible to do so and so the
entire evidence is vitiated. It is submitted that the Criminal
Manual of the Bombay High Court in Chapter 1 expressly states
E that non-Judicial Magistrates or Honourary Magistrates should
carry out identification parades. A Special Executive Magistrate
is a non-Judicial Magistrate and is an honorary appointment
by the government. Extracts of the relevant provisions from the
Criminal Manual are provided below:-
F "ldentification Parades

It is not desirable that Judicial Officers should associate
themselves with identification parades. All Civil Judges and
Judicial Magistrates are, therefore, directed that they
G should not participate in identification parades which are
conducted by the police for investigation purµoses.

In this connection, order in the Government Circular, Home
Department, No. MIS. 1054/84588 dated 22nd April,
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 275
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
1955, is reproduced below for the information of the Civil A
Judges and Judicial Magistrates:

In the Judgment delivered by the Supreme Court in
Ramkishan vs. Bombay State AIR 1955 SC 104, it has
been held that the statements made before police officers
by witnesses at the time of identification parades are B
statements to the Police, and as such are hit by Section
162 of the Code of Criminal Procedure, 1898. In view of
that ruling, it is necessary that such parades are not
conducted in the presence of Police Officers. The
alternative is to take the help of the Magistrates or leave C
the matter in the hands of panch witnesses. There would
be serious difficulties in panch witnesses conducting
parades successfully.

In regard to Magistrates, it is not feasible to associate o
Judicial Magistrates with such parades. The only
practicable course, therefore, is to conduct the parades
under Executive Magistrates and Honorary Magistrates
(not doing judicial work). Government is accordingly
pleased to direct that the Police Officers concerned should E
obtain the help of Executive Magistrates and Honorary
Magistrates in holding identification parades." (emphasis
added)

The Criminal Manual requires that a non-judicial Magistrate
(i.e. including an SEM) should preferably conduct identification F
parades of accused persons. The Criminal Manual has
adopted the principles enumerated by Archibold in his treatise
"Criminal Pleading, Evidence and Practice" and states that such
principles would apply mutatis mutandis to identification
parades with suitable variations. These guidelines include: G

(a) Identification parade should appear fair and
precaution must be taken to exclude any suspicion
of unfairness or risk of incorrect identification.
H
276 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (b) Officer concerned with the suspect must not take
part in the parade.

(c) Witnesses should be prevented from seeing the
suspect before he is paraded.

B (d) The suspect should be placed among persons of
similar height, age, weight etc. as far as possible.

(e) Witnesses should be introduced one by one and
should be asked to identify the suspect. Witness
c should be free to touch any person.

(f) If parade takes place in a prison then the prison
officer should be present throughout the parade.

(g) SEM should prepare a parade memorandum
D containing details of the time, place and date of the
parade; details of panch witnesses; names of the
persons standing in the parade; statements made
by identifying witnesses etc.

E The particulars/materials placed by the prosecution show
that the identification parades were carried out in compliance
with the requirements of the Criminal Manual.

207. It was further contended by learned senior counsel for
the accused that the identification parade should not have been
F conducted by the SEM. However, in the light of the provisions
of the Criminal Manual, identification parades should preferably
be conducted by non-Judicial Magistrates (i.e. Special
Executive Magistrates) and that in the instant case identification
parades were conducted by Special Executive Magistrates in
G compliance with the provisions of the Criminal Manual.

208. The Criminal Manual and the Government Circular,
Home Department, No. MIS.1054/84588 dated 22nd April,
1955 in clear terms requires that non-judicial Magistrates or
H Honorary Magistrates such as a Special Executive Magistrate
YAKUB ABDUL RAZAK MEMON v. STATE OF 277
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

should preferably conduct an identification parade and, A
accordingly, identification parades in the instant case were
conducted by Special Executive Magistrates.

Appointment of Special Executive Magistrates

209. It was further contended that Special Executive B
Magistrates are not trained Magistrates and they ought not to
have conducted the proceedings. In this regard the law relating
to the appointment of Special Executive Magistrates may be
pertinent. Special Executive Magistrates (SEMs) are appointed
by the State Government under Section 21 of the Code which c
states as follows:

"21 Special Executive Magistrates: The State
Government may appoint, for such term as it may think fit,
Executive Magistrates, to be known as Special Executive D
Magistrates for particular areas or for the performance of
particular functions and confer on such Special Executive
Magistrates such of the powers as are conferrable under
this Code on Executive Magistrate, as it may deem fit."

Section 21 is thus clear that the State Government can appoint E
SEMs for particular functions on such terms and conditions as
it may deem fit.

210. Section 21 of the Code was enacted pursuant to the
Thirty-Seventh Report of the Law Commission of India which F
recommended creation of a special class of magistrates for
carrying out specific functions. This report also brought forth a
draft of the new section for appointment of Special Magistrates
for particular areas or for particular functions and confer upon
them such powers as are conferrable on an Executive G
Magistrate under the Code. It may be noted that the Forty-First
report of the Law Commission did not approve of the creation
of Special Magistrates. However, the Joint Select Committee
of the Parliament agreed with the Thirty Seventh Report of the
Law Commission and recommended amending the Code to
H
27.8 SUPREME COURT REPORTS [2013] 15 S.C.R.

A provide for creation of a special class of Magistrates to carry
out specific functions, upon whom powers exercised by an
Executive Magistrate can be conferred. Accordingly, Section
21 was enacted.

B 211. Special Executive Magistrates are appointed by the
State Government for a particular purpose and can exercise
powers so conferred upon them by the State as are exercisable
by an Executive Magistrate. It is useful to note that the legality
of Section 21 of the Code which provides for appointment of
C Special Executive Magistrates was also considered by this
Court in State of Maharashtra vs. Mohd. Salim Khan (1991)
1 SCC 550. In this case, the State of Maharashtra appointed
all Assistant Commissioner of Police (ACPs) in the Greater
Bombay area as Special Executive Magistrates. This Court,
while upholding the appointment of ACPs as Special Executive
0
Magistrates held as under:

'The purpose of empowering the State Government to
appoint Special Executive Magistrates was evidently to
meet the special needs of a particular area or to perform
E particular functions in a given area. Such appointments
without adequate powers would be futile and the legislation
without providing such powers would be pointless. It can
be assumed that the Parliament does not indulge in
pointless legislation. Indeed, it has not done so in Section
F 21. A careful analysis of the section indicates very clearly
that the Special Executive Magistrates are also Executive
Magistrates."

Provisions of TADA in this regard:

G 212. Section 20 of TADA provides for certain
modifications to the provisions of the Code. One such
modification was made to Section 21 of the Code which
provides that a Special Executive Magistrate can also be
appointed by the Central Government in addition to the State
H Government as provided for in the Code. Similarly, another
YAKUB ABDUL RAZAK MEMON v. STATE OF 279
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J.]
modification provides that a-Special Executive Magistrate may A
also record statements made under Section 164 of the Code.
Section 20 of TADA provides as follows:

"20. Modified application of certain provisions of the
Code.-(1) Notwithstanding anything contained in the Code
B
or any other laws, every offence punishable under this Act
or any rule made thereunder shall be deemed to be a
cognizable offence within the meaning of clause (c) of
Section 2 of the Code, and "cognizable case" as defined
in that clause shall be construed accordingly.
c
(2) Section 21 of the code shall apply in relation to a case
involving an offence punishable under this Act or any rule
made thereunder subject to the modification that the
reference to "the State Government" therein shall be
construed as a reference to "the Central Government or D
the State Government."

(3) Section 164 of the Code shall apply in relation to a
case involving an offence punishable under this Act or any
rule made thereunder, subject to the modification that the
E
reference in sub section (1) thereof to "Metropolitan
Magistrate or Judicial Magsitrate" shall be construed as
a reference to "Metropolitan Magistrate, Judicial
Magistrate, Executive Magistrate or Special Executive
Magistrate ..... "
F
Section 20 of TADA expressly permits that Section 21 of
the Code applies in relation to an offence punishable under
TADA. Accordingly, a Special Executive Magistrate may be
appointed in a TADA case either by the State Government or
the Central government to perform such functions as the G
government may deem fit. Special Executive Magistrates may
perform such functions as are required in a TADA case. In the
instant case, Special Executive Magistrates conducted
identification parades of arrested accused persons in
H
280 SUPREME COURT REPORTS [2013] 15 S.C.R.

A compliance with the provisions of the Criminal Manual of the
Bombay High Court.

213. Section 20 of TADA read with Section 21 of the Code
permits a Special Executive Magistrate to carry out such
functions as are required in a TADA case and accordingly in
8
the instant case Special Executive Magistrates, inter alia,
conducted identification parades of the accused persons.

214. The constitutional validity of Section 20 of TADA has
been upheld by this Court in Kartar Singh vs. State of Punjab
C (1994) 3 SCC 569 wherein this Court upheld that Special
Executive Magistrates appointed under Section 21 of the Code
can record confessional statements for offences committed
under TADA and perform such other functions as directed. This
Court held as follows:
D
"309. Therefore, merely because the Executive
Magistrates and Special Executive Magistrates are
included along with the other Judicial Magistrates in
Section 164(1) of the Code and empowered with the
authority of recording confessions in relation to the case
E
under the TADA Act, it cannot be said that it is contrary to
the accepted principles of criminal jurisprudence and that
the Executive Magistrates and Special Executive
Magistrates are personam outside the ambit of machinery
for adjudication of criminal cases.
F
316 ...... Therefore, the contention of the learned counsel
that the conferment of judicial functions on the Executive
Magistrates and Special Executive Magistrates is opposed
to the fundamental principle of governance contained in
G Article 50 of the Constitution cannot be countenanced.
Resultantly, we hold that sub-section (3) of Section 20 of
the TADA Act does not offend either Article 14 or Article
21 and hence this sub-section does not suffer from any
constitutional invalidity."
H

•
YAKUB ABDUL RAZAK MEMON v. STATE OF 281
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J.]

In the instant case, which involves offences punishable A
under TADA, Special Executive Magistrate can be appointed
and carry out such functions, including conducting identification
parades, as the government may deem fit. In view of the same,
contentions raised regarding SEMs are liable to be rejected.
B
Recoveries:

215. Mr. Jaspal Singh, learned senior counsel for A-1
submitted that based on the statement of Mohd. Hanif (PW-
282) and other witnesses as well as confessional statements
of accused, several recoveries were made by the prosecution c
and in the absence of strict adherence to the procedure, those
recoveries are inadmissible in evidence. He also pointed out
that seizure panchnama was not in accordance with the
procedure and, more particularly, Section 27 of the Indian
Evidence Act. Now, let us consider how far the prosecution has D
established that the recovered articles/materials were either
used or intended to be used for the Bomb blasts on
12.03.1993 pursuant to the conspiracy hatched. Apart from the
argument of Mr. Jaspal Singh relating to a deficiency in the
panchnama, Mrs. Farhana Shah, learned counsel appearing for E
some of the accused has also raised the same contention.

216. Before going into the merits of the oral and
documentary evidence led in by the prosecution, let us consider
the salient features of a Panchnama and whether the
prosecution witnesses strictly adhered to the procedure
F
contemplated for a valid Panchnama. ·

Panchnama:

217. The primary intention behind the Panchnama is to G
guard against possible tricks and unfair dealings on the part
of the officers entrusted with the execution of the search with
or without warrant and also to ensure that anything incriminating
which may be said to have been found in the premises
searched was really found there and was not introduced or
H
282 SUPREME COURT REPORTS [2013] 15 S.C.R.

A planted by the officers of the search party. The legislative intent
was to control and to check these malpractices of the officers,
by making the presence of independent and respectable
persons compulsory for search of a place and seizure of article.

B Evidentiary value of Panchnama

21 S. Panchnama is a document having legal bearings
which records evidence and findings that an officer makes at
the scene of an offence/crime. However, it is not only the
recordings of the scene of crime but also of anywhere else
C which may be related to the crime/offence and from where
incriminating evidence is likely to be collected. The document
so prepared needs to be signed by the investigating officer who
prepares the same and at least by two independent and
impartial witnesses called 'Panchas', as also by the concerned
D party. The witnesses are required to be not only impartial but
also 'respectable'. 'Respectable' here would mean a person
who is not dis-reputed. One should also check if the witnesses
are in their senses at the time of the panchnama proceedings.
Only majors are to be taken as witnesses as minors' witness
E may not withstand the legal scrutiny.

219. Panchnama can be used as corroborative evidence
in the court when that respectable person gives evidence in the
court of law under Section 157 of the Indian Evidence Act. It
F can also be used as evidence of the recorded transaction by
seeing it so as to refresh their memory u/s 159 of Indian
Evidence Act.

Provisions relating to Panchnama in the Code

G 220. The word 'Panchnama' is nowhere stated in the Code,
but it can be construed from the language of certain provisions
under the code. Sections 100 and 174 of the code mandate
the presence of respectable persons as witnesses at the time
of search and investigation respectively.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 283
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

Section 100: Persons in charge of closed place to A
allow search (1 )Whenever any place liable to search or
inspection under this Chapter is closed, any person
residing in, or being in charge of, such place, shall, on
demand of the officer or other person executing the
warrant, and on production of the warrant, allow him free B
ingress thereto, and afford all reasonable facilities for a
search therein.

(2) If ingress into such place cannot be so obtained, the
officer or other person executing the warrant may proceed
in the manner provided by sub-section (2) of section 47.
c
(3) Where any person in or about such place is reasonably
suspected of concealing about his person any article for
which search should be made, such person may be
searched and if such person is a woman, the search shall D
be made by another woman with strict regard to decency.

(4) Before making a search under this Chapter, the officer
or other person about to make it shall call upon two or more
independent and respectable inhabitants of the locality in
E
which the place to be searched is situated or of any other
locality if no such inhabitant of the said locality is available
or is willing to be a witness to the search, to attend and
witness the search and may issue an order in writing to
them or any of them so to do.
F
(5) The search shall be made in their presence, and a list
of all things seized in the course of such search and of the
places in which they are respectively found shall be
prepared by such officer or other person and signed by
such witnesses; but no person witnessing a search under G
this section shall be required to attend the Court as a
witness of the search unless specially summoned by it.

(6) The occupant of the place searched, or some person
·in his behalf, shall, in every instance, be permitted to attend
H
284 SUPREME COURT REPORTS (2013] 15 S.C.R.

A during the search and a copy of the list prepared under
this section, signed by the said witnesses, shall be
delivered to such occupant or person.

(7) When any person is searched under sub-section (3),
a list of all things taken possession of shall be prepared,
B
and a copy thereof shall be delivered to such person.

(8) Any person who, without reasonable cause, refuses or
neglects to attend and witness a search under this section,
when called upon to do so by an order in writing delivered
c or tendered to him, shall be deemed to have committed
an offence under section 187 of the Indian Penal Code (45
of 1860).

174. Police to inquire and report on suicide, etc. (1)
D When the officer in charge of a police station or some other
police officer specially empowered by the State
Government in that behalf receives information that a
person has committed suicide, or has been killed by
another or by an animal or by machinery or by an accident,
or has died under circumstances raising a reasonable
E
suspicion that some other person has committed an
offence, he shall immediately give intimation thereof to the
nearest Executive Magistrate empowered to hold inquests,
and, unless otherwise directed by any rule prescribed by
the State Government, or by any general or special order
F of the District or Sub-divisional Magistrate, shall proceed
to the place where the body of such deceased person is,
and there, in the presence of two or more respectable
inhabitants of the neighborhood shall make an
investigation, and draw up a report of the apparent cause
G of death, describing such wounds, fractures, bruises, and
other marks of inquiry as may be found on the body, and
stating in what manner, or by what weapon or instrument
(if any), such marks appear to have been inflicted.

H (2) xxx
YAKUB ABDUL RAZAK MEMON v. STATE OF 285
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J.]

(3) xxx A

(4) xxx"

221. Section 100 of the Code was incorporated in order
to build confidence and a feeling of safety and security among
the public. Section 100 clauses (4) to (8) stipulate the B
procedure with regard to search in the presence of two or more
respectable and independent persons preferably from the
same locality. The following mandatory conditions can be culled
out from section 100 of the code for a valid Panchnama:
c
(a) All the necessary steps for personal search of
officer (Inspecting officer) and panch witnesses
should be taken to create confidence in the mind
of court as nothing is implanted and true search has
been made and things seized were found real. D

(b) Search proceedings should be recorded by the 1.0.
or some other person under the supervision of the
panch witnesses.

(c) All the proceedings of the. search should be E
recorded very clearly stating the identity of the place
to be searched, all the spaces which are searched
and descriptions of. all the articles seized, and also,
if any sample has been drawn for analysis purpose
that should also be stated clearly in the F
Panchana ma.

(d) The 1.0. can take the assistance of his
subordinates for search of places. If any superior
officers are present, they should also sign the
Panchanama after the signature of the main 1.0. G

(e) Place, Name of the police station, Officer rank
(1.0), full particulars of panch witnesses and the
time of commencing and ending must be
mentioned in the Panchnama. H
286 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (f) The panchnama should be attested by the panch
witnesses as well as by the concerned 10.

(g) Any overwriting, corrections, and errors in the
Panchnama should be attested by the witnesses.

B (h) If a search is conducted without warrant of court u/
s 165 of the Code, the 1.0. must record reasons
and a search memo should be issued.

222. Section 174 of the Code enumerates the list of
c instances where the police officers are empowered to hold
inquests, the proviso to this section mandates the inquest to
be conducted in the presence of two or more respectable
inhabitants of the neighbourhood.

Circumstances when the Panchnama is inadmissible:
D
223. The Panchnama will be inadmissible in the court of
law in the following circumstances:

(i) The Panchnama recorded by the 1.0. under his
supervision should not be hit by Sec.162 of the
E
Code. The procedure requires the 1.0. to record the
search proceedings as if they were written by the
panch witnesses himself and the same should not
be recorded in the form of examining witnesses as
laid down u/s 161 of the Code.
F
(ii) The Panchnama must be attested by the panch
witnesses for it to be valid in the eyes of law. In case
of a literate panch witness, he must declare that he
has gone through the contents of Panchnama and
G it is in tune with what he has seen in the places
searched, whereas for illiterate panch witness, the
contents should be read over to him for his
understanding and then the signature should be
appended. If the above said declaration is not
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 287
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

recorded, then the panchnama document will be hit A
by Sec.162 of the Code.

224. On any deviation from the procedure, the entire
panchanama cannot be discarded and the proceedings are not
vitiated. If any de!viation from the procedure occurs due to a
B
practical impossibility then that should be recorded by the 1.0.
in his file so as to enable him to answer during the time of his
examination as a witness in the court of law. Where there is no
availability of panch witnesses, the 1.0 will conduct a search and
seize the articles without panchas and draw a report of the entire
such proceedings which is called as a 'Special Report'. C

225. In Pradeep Narayan Madgaonkar and Ors. vs. State
of Maharashtra (1995) 4 SCC 255, this court upheld that the
evidence of the official (police) witnesses cannot be discarded
merely on the ground that they belong to the police force and o
are either interested in the investigating or the prosecuting
agency. But prudence dictates that their evidence needs to be
subjected to strict scrutiny and as far as possible a
corroboration of their evidence in material particulars should be
sought. Their desire to see the success of the case based on E
their investigation and requires greater care to appreciate their
testimony.

226. In Mohd. Hussain Babamiyan Ramzan vs. State Of
Maharashtra, (1994) Cri.L.J. 1020, and Panna/al Damodar vs.
State of Maharashtra (1979) 4 SCC 526, it was held that F
normally, it is expected that the investigating officer will take
independent panch witnesses and if knowingly he has taken
pliable witnesses as panch witnesses then the entire raid would
become suspect and in such a case it would not be possible
to hold that the evidence of police witnesses by themselves G
would be sufficient to base conviction.

227. In M. Prabhulal vs. The Assistant Director,
Directorate of Revenue Intelligence (2003) 8 SCC 449 and
Ravindra Shantram Sawan vs. State of Maharashtra (2002) H
288 SUPREME COURT REPORTS [2013] 15 S.C.R

A 5 sec 604, this Court came to the conclusion that mere non-
examination of the panch witnesses, who are normally
considered as independent witnesses, would not be sufficient
to discard the evidence of the police witnesses, if their evjdence
is otherwise found to be trustworthy.
B
228. In Rameshbhai Mohanbhai Kofi and Ors. vs. State
of Gujarat (2011) 11 SCC 111, this Court held that "Merely
because the panch-witnesses have turned hostile is no ground
to reject their evidence in toto but the same can be accepted
C to the extent that their version was found to be dependable on
a careful scrutiny.

229. Keeping the above principles in mind, let us consider
the recoveries made through prosecution witnesses. Altaf Ali
Mustaq Ali Sayed, (A-67), in his confessional statement
D narrated about various articles and also identified the articles
used for the preparation of bomb. He made his confessional
statement before Mr. P.K. Jain (PW-189), the then DCP, Zone-
X, Bombay. Since we are concerned about the recoveries, we
are not adverting to his entire statement for the present. A-67
E in his confessional statement implicated A-1 at many places.
He informed the officer that A-1 asked him to get the tickets
confirmed for Dubai on short notice since he was working as
a recruiting agent. For this, he assured A-1 that it would be
possible for him to arrange tickets even on short notice.
F Thereafter, when he returned to his office, in the evening, he
received a call from Amjad telling him that as discussed in the
morning with A-1, bags have been sent for keeping the same
with him. After saying so, he brought 4 bags in which one was
a big brown coloured VIP bag, one small and one black
G coloured VIP like bag and two handbags tied together, from a
jeep parked in the compound and handed over the same to
him. The next day, according to him, A-1 telephoned him and
verified whether Amjad had handed over the bags to him. He
answered in the affirmative then he asked to book 4-5 tickets
for Dubai. A-1 also sent the names with money through one
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 289
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]
Rafiq Madi (A-46), who was also a resident of Mahim and A
known to him for the last 10-12 years. He booked 15/16 tickets
for them. Rafiq Madi, who used to bring the money every time,
took the tickets. In his further confession, he stated that after
10-12 days Amjad handed over three bags through Rafiq for
keeping the same with him (A-67), out of them, one was big B
and two were small and A-46 kept them in his office and told
him that Yakub Menon had sent these bags and these were to
be sent along with the persons going abroad. He gave them 5
tickets in the first week of March and all the persons went away
but the bags remained lying there, then he spoke to Yakub C
Memon over phone and asked as to when he will take away
the bags. For this, A-1 replied that he will take away the same
in a couple of days. Oil the same day, in the afternoon, at 2
p.m., A-1 called him and directed him to send those bags to
him since he had nobody with him. Then, at 6 'o' clock, in the
D
evening he put all those bags in his Maruti car and reached
his building. He further explained that among those ' bags, 4
bags were given to him by Amjad and one small bag was given
by Rafiq Madi. He could not give the other 2 bags due to their
being heavy. When he asked the watchman to call Yakub bhai,
at that time, a seNant girl, aged about 10/12 years, came down E
with the keys of garage and put those bags inside the garage
of Yakub bhai. When he returned to his house, he telephoned
Yakub Memon (A-1) that he had given 5 bags to his watchman
and he had put them in his garage.
F
230. Thereafter, he went to Borivali where he heard that
bombs had exploded at several places in Bombay on Friday
i.e. 12.03.1993. After 2-3 days, when he read the newspaper
and came-to know that Yakub Memon and his men were b~hind
the blasts then he got very scared. The other two bags were G
lying in his office. He further stated before the DCP that during
this period, Amjad had gone to Karachi and London on 21/
22nd March. He gave both the bags to Yakub Memon (A-1)
through a Taxi Driver, viz., Mohammed Hanif, who used to
H
290 SUPREME COURT REPORTS [2013] 15 S.C.R

A handle all his parties etc. and told him to keep those bags with
him and return as and when required or when he was asked
for the same. He also stated that the police came to his office
on 26.03.1993, at about 5 'o' clock and inquired about the bags
which Amjad had given to him and he explained to them in
B detail. Later, he realized and believed that the bags kept in his
office by Yakub Memon through Amjad contained gun powder,
arms and ammunitions and he and his men used all that for the
bomb blasts in Bombay.

231. In his confessional statement before the recording
C officer, he stated that, at first, A-1 told him that it contained office
documents but later he informed him that it contained weapons
etc. to take revenge against the loss of Muslims in Bombay
riots. Later, he informed A-1 not to implicate him and not to
create any problem for him. On this, A-1 told him to keep those
D two bags for few more days. After this, when Rafiq came to
keep 3 bags with him, he asked him what was contained in
these bags as they were very heavy, at that time, he told him
that the bags contained bullets and grenades etc. for some work
in Bombay. He informed the officer that he had no other role
E except for keeping those bags in his office.

232. The next witness heavily relied upon by the
prosecution is 'Mohammed Hanif Usman Shaikh (PW-282)'.
According to him, he had been residing at Bombay for the last
F 30 years and had been plying a taxi for the last 10 years. He
admitted in his evidence that he knows Altafbhai (Altaf
Passportwala) and he identified Altafbhai in the Court and also
informed his full name as Altaf Ali Mustaq Ali Sayeed. He
further informed the Court that Altafbhai gave him 2 suit cases
G in his office when he had been to the said office at 09:00 p.m.,
on 22.03.1993. Both the said suitcases were given to him in a
closed condition. Altafbhai told him to keep the said suit cases
and informed him that it contained fax machines. Both the said
suitcases were of light brown colour. While describing further,
it was stated that 1 suitcase was of bigger in size while another
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 291
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J]
one was of smaller in size. He further explai~ that since A
Altafbhai was not having place to keep the said suitcases, he
had given the same to him for keeping the same for a few days.
Accordingly, he brought the said suitcases to his house.

233. In continuation of his evidence, he stated that on
B
26.03.1993, at about 10:30 p.m., 4/5 policemen along with
Altafbhai came to his house. On seeing him, Altafbhai told him
to return the bags given by him. Though an objection was
, ra·1sed about the said question, the Designated Court has
rightly clarified that the answer was allowed with the limited
object to show only a fact that Altafbhai had made a statement. c
Thereafter, PW-282 deposed that he took out the bags which
were under the Sofa and gave the same to police persons who
had accompanied Altafbhai (A-67). Since he was not having
the keys, he was unable to produce the same when he was
asked by Police Officer Mahabale. Thereafter, the said officer D
called a mechanic and the mechanic opened both the bags by
preparing the keys for the same. After opening the bags, the
mechanic went away. Both the said bags were found to contain
hand grenades. Both bags also contained wire bundles. T-he
bigger suit case contained 65 hand grenades. The same also E
contained 1O bundles of wire. The smaller suit case contained
40 hand grenades and 5 bundles of wire. He further explained
that the chits were affixed on each of the hand grenades in both
the said bags. The bundles of wire from both the bags were
kept together and wrapped in a paper. The said packet was F
tied by means of a string. A seal was also affixed upon the said
packet. The hand grenades from both the bags were of similar
size. The same were of green colour. Each bundle of wire
contained wires of green, red and yellow colour. The witness
deposed that he had seen the suit-cases before this day. G
Accordingly, the suit cases were marked as Article Nos. 42
and 43 after showing the same to him. He mentioned that he
had seen both the said suitcases in the year 1993 and had
seen both the said suit cases on 22.03.1993. He reiterated that
H
292 SUPREME COURT REPORTS [2013] 15 S.C.R.

A he had seen the said suit cases on the said day in the office
of Altafbhai. Thereafter, the said suitcases were given to him
by Altafbhai. When a specific question was put, namely,
whether Article Nos. 42 and 43 shown to him had any
connection with the suitcases given to him by Altafbhai, he
B answered that the same were the suitcases like these
suitcases. He again reiterated that suitcases Article Nos. 42
and 43 were the suitcases given to him by Altafbhai.

234. In the cross-examination, he mentioned that the hand
grenades from the bigger suitcase were counted in his presence
C and asserted that after counting the same they were found to
be 65 in number. He also reiterated that thereafter 65 labels
were prepared and signatures of panch witnesses were
obtained upon each of the said labels. After affixing of the said
65 labels one by one on each of the said hand grenades, the
D labeled hand grenades were kept in a bigger suit case. He also
asserted that the said labeled hand grenades or any hand
grenade out of them was not removed from the said bigger
suitcase after the same were kept ·1n the same up till the said
bag was removed from his house by the police. Before
E removing the bigger suit case from his house, he stated that
the same was lacked by means of a key which was prepared
by the mechanic for opening the said suitcase. He also stated
that the bigger suitcase was sealed in his presence in such a
manner that contents thereof could not be removed by anybody
F without tampering or breaking the seal affixed on the said suit
case.

235. Regarding the smaller box, he stated that in the same
manner 40 hand grenades were found from the smaller bag and
G after that the same were labeled. The said bag was also locked
by means of a key prepared by the mechanic for opening the
said bag. He also stated that the said bag was also sealed in
such a manner that the contents thereof could not be taken out
without damaging the intact seal affixed to the said bag or
without breaking the said bag. He also stated that none of the
H
YAKUBABDUL RAZAK MEMON v. STATE OF 293
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J.]

labeled hand grenades kept in the said bag was removed after A
the same were kept in the said bag, after labeling and uptill the
said small bag (suitcase) was taken out of his house by the
police.

236. He further stated that in the said night, he had seen B
only 105 hand grenades and out of them 65 hand grenades
were kept in bigger suitcase and 40 hand grenades were kept
in the smaller suit case. Since he disputed the number of hand
grenades, labeling and locking in cross examination, with the
permission of the Court, the Special Public Prosecutor put c
questions regarding happenings at Mahim Police Station in the
month of Feb./March, 1993 and the circumstances in which the
statement of the witness was recorded by the police and the
reason for which he had deposed before the Court. In respect
of a suggestion that he had made such a wrong statement at D
the instance of accused Altafbhai (A-67) and his agents, he
denied the same. Regarding the acceptability or its evidentiary
value regarding the number of hand grenades is to be
discussed in the coming paragraphs.

237. Regarding recoveries, the prosecution also relied on
E
the evidence of 'Ramesh Manohar Parkunde (PW-541)'.
According to him, in the month of March 1993, he was attached
to the DCB. CID, Unit VIII as P.I. He deposed before the Court
that on 24.03.1993, senior P.I. V. S. Kumbhar of DCB, CfD
F
entrusted him with further investigation of C.R. 138 of 1993
registered with L.T. Marg Police Station on 23.03.1993. After
taking charge of the said investigation, he registered C.R. No.
77 of 1993 as a corresponding C.R. No. for the said crime. On
going through the earlier papers of investigation, he noticed a
G
panchnama dated 23.03.1993 affected at L.T. Marg Police
Station. He took charge of the articles recorded in the said
panchnama and kept the same in the Strong Room of DCB,
CID. The said articles were suit cases, AK-56 rifles,
ammunitions and hand grenades etc. He further informed that
H
294 SUPREME COURT REPORTS [2013] 15 S.C.R.

A on 24.03.1993, he visited the place from where the said articles
were seized and made a thorough inquiry regarding the manner
in which the said articles came to the said spots. He further
• stated that on 27.03.1993, he handed over all live hand
grenades seized under Panchnama Exh. 728 to P./. Chaugule
B of B.D.D.S for defusing the same. On the same day, he had
also given him all the detonators seized under the same
panchnama for diffusing. He had requested the said squad for
returning the said hand grenades and detonators after diffusing
the same.
c
238. PW-541 forwarded the seized articles to FSL for
examination by preparing necessary forwarding letter and
described the articles sent therein. On going through the office
copy of the said letter, he explained that on the said day, he
o had sent in all 11 sealed packets to the FSL and out of them 4
articles were sealed gunny bag packets and other 7 were
sealed bags with each packet containing the articles as
described in the said forwarding letter. The said articles were
received on the same day by the FSL and the FSL has given
E the acknowledgement of receipt of the letter and articles. The
letter shown to him containing the said acknowledgement of
FSL is marked as Exh. 1846. According to him, since the said
articles were in large quantity, he had personally taken those
articles to the FSL. On 02.04.1993, he had taken out the said
F articles from the Strong Room. He asserted that the said
articles were found in perfectly sealed labeled and packed
condition in which the same were deposited in the strong room,
ie .. they were in the same condition in which he had received
them. He sent those articles in the same condition to the FSL.
G On 27.04.1993, he received a report from Chemical Analysor
regarding the articles sent by him for examination. In the
absence of any objection by the defence counsel, the Chemical
Analyser report has been admitted in evidence and the same
is marked as Exh. 1847.
H
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Official Journal
of Reportable Supre111e Court Decisions

I,.,, .-1

A conviction order is not a judgment as contemplated u/s. 353
•Cr.P.C. andjudgment is pronounced only after the award of sentence.

Yakub Abdul Raza.k Memon v. State of Maharashtra, Through CBI, Bombay ... 1

"
Role of police and customs officials to combat terrorism,
. discussed.

Yakub Abdul Razak Memon v. State of Maharas,htra; Through CBI, Bombay :.. 1··
,

Life imprisonment means whole natural life.

Yakub Abdul Razak Memon v. State of Maharashtra, Through CBI, Bombay ... 1

. 1~r''artt1J11wtrnmim1*Hr¥J?£W.Millm$&
~~~~~~~~~~~~~~~~~~~~~~-'-~~.~
YAKUB ABDUL RAZAK MEMON v. STATE OF 295
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

239. Apart from the above mentioned evidence of PW- A
541, who is an officer incharge of the muddemal property, since
20 hand grenades were found less while recording his
evidence, he filed an affidavit dated 11.10.1999 before the
Designated Court which reads as under:
"In the Court of Designated TADA(P) Ac, BBC, Gr. Mumbai B
h
BBC No. 1/93
The State of Maharashtra/CBI, STF ... Appellant
vs. c
Dawood !bra.him Kaskar & Others. . .... Accused
AFFIDAVIT
.I. Ramesh Manohar Pargunde, 52 yrs Sr. Inspector of D
Police, Kherwadi Police Station, Mumbai, do hereby
solemnly affirm and say as under:-
2. That I am filing this affidavit with a view to explaining the
shortage of 20 hand grenades in muddemal property of
this case. E
3. I say that I was incharge of the store of muddemal
property of Crime Bracnh, CID,. Mumbai in the year 1993.
On 22.05.1993, the Police Inspector of Worli Police Station
had deposited 105 hand grenades and 150 detonators,
which were seized in connection with LAC No. 389/93 of F
Worli Police Station, Mumbai in DCB, CID CR No. 112/
93.
4. I say that I was informed that 20 hand grenades were
found less in the muddemal property while recording the
evidence of this case. I was, therefore, asked to check up G
the record of the above store of Crime Branch. I have
personally checked and verified the said record. I say that
5 handgrenades were lying in the strong room of Crime
Branch, CID. I say that inadvertently the said 5 hand
grenades were not deposited in the Court when the said H
296 SUPREME COURT REPORTS (2013] 15 S.C.R.

A muddemal property was produced before the Court. I say
that the prosecution may be permitted to produce the said
5 hand grenades for which a separate application is being
moved before this Hon'ble Court.
5. I say that I have verified the other record of the Crime
B Branch and found that the remaining hand grenades were
given to the various authorities as per the orders of the
superiors.
a) Six hand grenades given to Intelligence Bureau by
Pl, BODS on 10.06.1993.
c
b) One hand grenade was given to DCP CB,
Hyderabad.
c) Eight hand grenades have been given to the
Ballistic Expert of Austria and Britain, as the said
D experts were called upon to opine on the origin of
the said hand grenade
I say that whatever stated in Para No. 3 and 4 is as
pert.he record available in the office and whatever stated
in Para No. 5 (a, b & c) is true as per my personal
E
knowledge and as per the available records and I believe
the same to be true.
Solemnly affirm.
This 11th day of October, 1999.
F
Deponent
(R.M. Pargunde)
Identified by me
Spl. Public Prosecutor
G
CBI, STF Mumbai"
240. The statements of various accused, particularly, A-
1O and the evider:ice of PW-282 as well as PW-541 coupled
with the affidavit sworn by PW-541 and in the light of the
H principles to be followed for a valid ;:anchnama which we have
YAKUB ABDUL RAZAK MEMON v. STATE OF 297
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J ]
discussed earlier, we are satisfied that though minor A
discrepancies are there, according to us, on this ground we
cannot destroy the entire prosecution case. In view of the fact
that the prosecution has led ample corroborative evidence,
which we have discussed in the earlier paragraphs, we are of
the view that the Designated Court was fully justified in relying B
on those recoveries while accepting the prosecution case.
Final Analysis relating to A-1

241. From the total appreciation of the evidence as
produced by the prosecution in support of the case against A- C
1, an offence of conspiracy is clearly made out. The evidence
in respect of A-1 is in the nature of confessions made by the
co-accused persons, the testimonies of the prosecution
witnesses and documentary evidence on record and
recoveries. D
(a) A1O in his confessions has categorically stated that A-
1 is the younger brother of Tiger Memon. It was A-1 who
attended many telephone calls at the Tiger's residence. On 10/
11.02.1993, A-1 handed over three tickets to Dub<1i and three
passports to A 10 asking him to pick up A-100, A-16 and Salim E
from Midland Hotel and handover the tickets and passports to
them and also directed to drop them at the airport by taxi, all
of which, was duly done by A-10. He further stated that at the
airport, Tiger told them that he should keep in touch with A-1
and in case of any requirement of money he should get the F
money from Choksi (A-97). On 13th February, A-1 directed A-
1O to collect Rs. 1 crore from Choksi (A-97) for him. A-1 O
collected the said money along with co-accued Abdul Gani (A-
11 ), Parvez (A-12), Md. Hussain, Salim and Anwar Theba (AA).
On 17/18th February, A-1 directed A-10 to remain with Rafiq G
Madi (A-46). On the next day, A-10 and A-46 picked up lrfan
Chougule (AA) from Mahim and Shahnawaz (A-29) and his
companion from Sandra Reclamation and dropped them at th~
Airport. It was A-1 who directed A-10 to transfer rupees 25
lakhs from Tiger's account to Irani's account and also to transfer H
298 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Rs. 10 lakhs to Ohalia's account which was duly done by A-
10. The timing of these transfers if seen in the context of
activities being carried out contemporaneously was for meeting
the expenses for achieving the objects of conspiracy, to meet
the expenses incurred for admitting of co-conspirators and also
B to meet the expenses to be incurred during the abscontion
period.

(b) In the same way, A-11, in his confession specifically
stated that on 27th/28th January A-1 was present at Al-Hussaini
Building with other co-accused, i.e., A-46, A-15, A-12, A-52.
C On 07.03.1993, A-11 was present at Al Hussaini Building along
with Tiger, Shafi, Essa (A-3), A-7, A-5 and A-6.

(c) (A-46), in his confession referred to the role of A-1
apart from mentioning that he is the younger brother of Tiger
D Memon. He further confessed that he used to drive Tiger's blue
Maruti-800 for attending to all business activities. On 8th or 9th
February, he handed over Rs. 50,000/- to him which was in turn
given to Altaf Passportwala. Between 14/15th February, Anwar
filled up brown coloured substance in three VIP suitcases from
E the secret cavity of the jeep at the instructions of A-1 in his
presence. Next day, A-1 gave Rs. 62,000/- to Rs. 63,000/- to
him to be given to A-67. On 17th February, A-1 handed over
five passports and tickets to Anwar for Yeda Yakub and others
for their departure to Dubai. The next day, on the directions of
A-1, A-46 dropped lrfan Chougule (AA}, Asgar Yusuf Mukadam
F
(A-10) and Shahnawaz at the Airport for their departure to
Dubai. On 14th, he was given Rs. 4 lakhs by A-1 after collecting
the said amount from Choksi A-97.

(d) A-67 in his confession referred to the role of A-1. A-1
G asked A-67 about the bags that have been delivered to him
by Ajmal. It was A-1 who arranged for tickets for some ten
accused through him by sending money etc. A-1 sent three
bags through A-46 to accused A-67 for safe keeping of the
same which contained arms and ammunitions. A-1 instructed
IH A-67 over phone for sending the bags to Al-Hussaini i.e.
YAKUB ABDUL RAZAK MEMON v. STATE OF 299
MAHARASHTRA, THR. CBI, BOMeAY [P. SATHASIVAM, J.]

residence of Memon's family. Earlier, A-1 had asked A-67 to A
keep the' bags. When Ac67 told A-1 that he may be implicated,
A-1 replied that he need not worry.

(e) The confessional statement of A-97 clearly establishes
that Tiger had an account with him in which various amounts B
totaling about Rs.161.48 lakhs were deposited by A-26 at the
behest of Tiger Memon (AA) which was also controlled by A-1.
It is relevant to mention that on 12.02.1993, at the time of
departure to Dubai, Tiger told A-1 O that he should remain in
contact with A-1 and should bring money for him from A-97 in
case A-1 needed money. From the above, it could safely be C
inferred that the account maintained with A-97 by Tiger Memon
was being used for meeting the expenses incurred for achieving
the objects of criminal conspiracy and A-1 was handling it
through the o!her co-conspirators.
D
242. Confessional statements of A-10, A 11 and A-46
clearly reveal that the relevant role of collecting money was
played by A-10 at the behest of A-1. In the said context, the
·material contained in the confession of A-10 that while leaving
for Dubai, Tiger Memon told him to remain in touch with A-1 E
and having further told that in the event of A-1 requiring any
money A-10 should collect the same from A-97 clearly reveals
that A-1 himself having not collected the money from A-97 but
he was using A-10 for the said purpose and was actively
involved in day-to-day activities. The same is further clear in the
F
confession of A-10 which reveals that after A-1 having told him
. /
to bring about an amount of Rs. 1 lakh from A-97, the manner
in which the said amount was brought by A-10 by going to the
house of A-97 along with A-11, A-12 and two more persons.

243. Apart from the above evidence, Asif Sultan Devji G
(PW-341) and Massey Fernandes (PW-311) have deposed
about booking of 12 tickets and 1 ticket respectively at the
instance of A-67. It is relevant to note that A-67 in his statement
under Section 313 of the Code has admitted having booked
the tickets for Dubai through the said witnesses. H
300 SUPREME COURT REPORTS (2013) 15 S.C.R.

A 244.PW-2, Approver had categorically stated that A-1, at
the instance of Tiger, gave air tickets to Javed which were of
A-100, A-52, A-60, A-32 besides for himself.

245. It has also come in the evidence of S. P. Udayavar
(PW-441) that at the instance of A-1, in January and March,
8
1993, he booked tickets for Dubai vide Exh. 1421. PW-441 had
categorically stated that the tickets booked by him were
collected by a person from Tejarath International sent by A-1.
All the above details clearly show that the tickets booked by
A-67 and others at the behest of A-1 were for the co-accused,
C who went to Dubai and, subsequently, to Pakistan for weapons
training as revealed in their confessional statements and
evidence of PW-2. All this information emanated not only from
the accused in their confessional statements but also from the
persons who were. in charge of issuance of tickets at the travel
D agencies and Airport. In the light of evidence of PW-441 about
booking of tickets by A-1 in the account of Tejarath International
coupled with the confession of co-accused A-14, A-94, A-49
and A-39 regarding their visits to Dubai during the relevant time,
establish that A-1 had booked air tickets for the co-conspirators
E mentioned above. The examination of Vijayanti 8. Dembla
(PW-313) and Nitin K More (PW-310) establishes that ii was
A-1 who was booking tickets and used to send his employee
to collect them from East West Travels. The examination further
reveals that the office of his firm was burnt in the riots and he
F started working from his residence at the Al-Hussaini Building.

246. It is also seen from the confession of A-67 that A-1
had given him four bags on the first occasion which were
containing ammunitions. On the second occasion, A-46 had
G delivered three more suit cases to A-67 and upon being asked
by him, A-46 stated that the suit cases were containing round
bombs etc. Thus, A-67, in all had received 7 bags from A-1
through A-46 which containing arms/ammunition etc. A-67;
thereafter, returned five bags to A-1 that included four bags
which were received on the first occasion and one of the three
H
YAKUB ABDUL RAZAK MEMQN v. STATE OF 301
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

received on the second occasion. The above confessional A
statement of A-67 corroborated the evidence of Akbar Khan
Abusama Khan (A-37). A-46 in his confessional statement also
stated about the delivery of three suit cases to A-67 by A-1.
Thol!Qh some discrepancies are there, in the light of the
abundant materials, if we read the entire confessional statement B
of A-67, those were not of much importance.

247. It is further seen that in all important meetings with
Tiger Memon, particularly, at the residence Al-Hussaini, A-1
used to interact with him. It is further clear that the confessional
statement ofA-67 corroborated the evidence of PW-37, PW- C
506 and PW-282. It has also come in evidence that A-1 was
in possession of handgrenades and electronic detonators which
were concealed in the jeep and-which were delivered to A-67
in three suit cases by A-1 through A-46. It is also seen from
the evidence of PW-87, driver working for A-5 and PW-630 D
Manager of Hind Automobile and Company that the Maruti Car
bearing No. MP-09-H-0672 belonged to A-1 and the evidence
also establishes that he is the owner of the said vehicle which
was involved in the said bomb blast. It has been proved that
the said maruti car.of blue colour was planted at Bombay Stock E
Exchange which exploded at 0330 hours killing 84 persons,
injuring 270 persons and causing loss of property worth Rs. 5
crores. The· number plate (Art. 227) bearing MP-09-H-0672 was
seized from the place of occurrence by Deputy Manager,
"Bombay Stock Exchange (PW-82). Engine No. and Chassis F
No. were seized by PW-86 and PW-370 respectively. The said
maruti car was purchased by Shafizarimal in the beginning of
the year 1992 through Sulaiman Mohammed Lakdawala (PW-
365) and thereafter, it was changed fom hand to hand and this
car was used to blast Bombay Stock Exchange building. This G
car was used by Tiger Memon and A-1 for explosion. This is
evident from the evidence of PWs 87 and 630.

248. We have already noted that the confessions of A-10,
A-11, A-46 and A-97 ar.e voluntary confessions and the same
H
302 SUPREME COURT REPORTS [2013) 15 S.C.R.

A have been properly recorded by recording officers and the
same being not liable to be discarded. Merely because
confession of A-1 is not on record, i.e., the said accused having
not made a confession, the same cannot be cons_idered as a
factor for terming other evidence led by the' prosecution as a
B weak type of evidence.

249. The material portion in the confessions of A-10, A-
11 and A-46 clearly reveal the relevant role of collecting money
paid by the said accused at the behest of A-1 . The oral and
documentary evidence led in by the prosecution clearly prove
C that A-1 was not only associated with his brothers and other
accused but had also participated in the conspiracy. Several
co-accused, particularly, A-10, A-11, A-46 and A-97 in their
confessional statements unequivocally referred to the role of A-
1 and his participation in all aspects. The prosecution has also
D proved recoveries of incriminating articles like hand grenades
etc., and also for the purchase of air tickets, getting passports ·
and visa's for the persons who went to Pakistan via Dubai for
training in handling of arms and ammunitions. Apart from the
categorical statement of co-accused, the prosecution has also
E examined the independent witnesses from the travel agencies
and other authorities. Apart from this, there are ample evidence
to show that he was incharge of all money transactions and
monitoring the activities of all the persons concerned in the
movement. The prosecution has also established that A-1 owns
F a blue Maruti Car which was used for carrying explosives and
detonators one day before the blast took place on 12.03.1993.
A-1 left for Dubai on 11.03.1993 with the Indian Passport and
thereafter he entered Pakistan with Pakistani Passport. Though
he was not one among the persons who carried arms and
G ammunitions used for the blast but ii was he who stood behind
them from starting 1111 the end, viz., conspiracy, planning and
making all the arrangements for sending certain persons to
Pakistan for training in handling of arms and ammunitions. We
are satisfied that the prosecution has established all the charges
H leveled against A-1 and the Desginated Court, after analysing
YAKUB ABDUL RAZAK MEMON v. STATE OF 303
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J]
\\
all the materials including oral and documentary evidence and A
the independent witnesses, rightly convicted him.

250. A perusal of the above confessions by the co-
conspirators would show that the appellant (A-1) was playing
a key role in furtherance of the above said conspiracy. The B
above evidence along with further material relied on by the
prosecution show that A-1 also played an active role in
generation and management of funds for achieving the object
behind the conspiracy and in all subsequent events.

Criminal Appeal Nos. 609-610 of 2008 c
Zakir Hussain Noor Mohd. Shaikh (A-32)
Abdul Khan @ Yakub Khan Akhtar Khan (A-36) &
Firoz @ Akram Amani Malik (A-39) .... APPELLANT(S)
vs.
State of Maharashtra, Through ..... Respon~ent(s) D
STF, CBI, Bombay
*********

251. Mr. Priyadarshi Manish, learned counsel appeared
for the appellants (A-32, A-36 and A-39) and Mr. Gopal E
Subramanium, learned senior counsel, duly assisted by Mr.
Mukul Gupta, learned senior counsel and Mr. Satyakam,
learned counsel for the respondent.

252. The present appeals are directed against the fii)al F
judgment and order of conviction and sentence dated
04.12.2006 and 24.07.2007 respectively whereby the
appellants (A-32, A-36 and A-39) have been convicted and
sentenced to death by the Designated Court under TADA for
the Bombay Bomb Blast Case, Greater Bombay in B.B.C. G
No.1/1993.

Charges:

253. The following common charge of conspiracy was
framed against all the co-conspirators including the appellants H
304 SUPREME COURT REPORTS [2013) 15 S.C.R.

A herein. The relevant portion of the said charge is reproduced
hereunder:

"During the period from December, 1992 to April, 1993
at various places in Bombay, District Raigad and District
Thane in India and outside India in Dubai (UA.E.) Pakistan,
B
entered into a criminal conspiracy and/or were members
of the said criminal conspiracy whose object was to
commit terrorist acts in India and that you all agreed to
commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
c established, to strike terror in the people, to alienate
Sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and
Muslims by using bombs, dynamites, handgrenades and
other explosives substances like ROX or inflammable
D substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or
persons, loss of, damage to and disruption of supplies of
services essential to the life of the community, and to
E achieve the objectives of the conspiracy, you all agreed
to smuggle fire-arms, ammunitions, detonators,
handgrenades and high explosives like ROX into India
and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
F acts and for the said purpose to conceal and store all
these arms, ammunitions and explosives at such safe
places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose
G off the same as need arises. To organize training camps
in Pakistan and in India to import and undergo weapons
training in handling of arms, ammunitions and explosives
to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, abet and knowingly
H facilitate the terrorist acts and/or any act preparatory to the
YAKUBABDUL RAZAK MEMON v. STATE OF 305
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

commission of terrorist acts and to render any assistance A
financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary for achieving the
aforesaid objectives of the criminal conspiracy and that on
12.03.1993 were successful in causing bomb explosions B
at Stock Exchange Building, Air India Building, Hotel Sea
Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza
Theatre and in lobbing handgrenades at Macchimar Hindu C
Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and
property worth about Rs. 27 crores destroyed, and
attempted to cause bomb explosions at Naigaum Cross
Road and Dhanji Street, all in the city of Bombay and its
0
suburbs i.e. within Greater Bombay and thereby
committed offences punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120(B) of Indian Penal
Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of
TADA (P) Act, 1987 and read with Sections 302, 307,
326, 324, 427, 435, 436, 201 and 212 of Indian Penal E
Code and offences under Sections 3 and 7 read with
Sections 25 (1A), (1 B)(a) of the Arms Act, 1959, Sections
9B(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3,
4(a)(b), 5 and 6 of the Explosive Substances Act, 1908
and Section 4 of the Prevention of Damage to Public F
Property Act, 1984 and within my cognizance."

In addition to the abovesaid principal charge of conspiracy,
the appellants were also charged on the following counts:

At head Secondly; Each of the appellants (A-32, A-36 G
& A-39) committed an offence punishable under Section
3(3) of TADA by doing the following acts:

(i) They received training in handling of arms,
H
306 SUPREME COURT REF'ORTS [2013] 15 S.C.R.

A ammunition and explosives in Pakistan along with
co-conspirators.

(ii) They attended meetings at the residences of Nazir
Ahmed Shaikh @ Babloo (AA) and Mobina @
Baya Musa Bhiwandiwala (A-96) where plans for
B
committing terrorist acts were discussed and
chalked out.

(iii) They participated in preparation of vehicle bombs
on the night of 11.03.1993 at Al-Hussaini building.
c
At head Thirdly; Each of the appellants along with other
co-accused went to Mahim Slope on 12.03.1993 in a
Maruti Van bearing registration no. MP-13-0-385, and
threw hand grenades on the hutments, which exploded
causing death of three persons and injuries to six persons
D
and damage to property worth Rs.50,000/- and thereby
committed an offence punishable under Section 3(2)(i)(ii)
of TADA read with Section 149 !PC.

At head Fourthly; Each of the appellants along with other
E co-accused persons formed unlawful assembly as
mentioned above, while throwing the hand grenades at the
said hutments at Mahim Causeway, which resulted into
death, injuries and damage to properties and thereby
committed an offence p\.mishable under Section 148 !PC.
F
At head Fifthly; Each of the appellants, by causing the
death of three persons as mentioned above by throwing
hand grenades, committed an offence punishable under
Section 302 read with Section 149 IPC.
G At head Sixthly; Each of the appellants, by causing the
aforesaid explosion by throwing hand grenades which
resulted into injuries to various persons, committed an
offence punishable under Section 307 read with Section
149 IPC.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 307
MAHARASHT~. THR. CBI, BOMBAY [P SATHASIVAM, J.]

At head Seventhly; Each of the appellants, by causing A
the aforesaid explosion by throwing hand grenades, which
resulted into injuries, committed an offence punishable
under Section 324 read with Section 149 IPC.

At head Eighthly; Each of the appellants, by causing the
8
aforesaid explosion by throwing hand grenades, which
resulted into damage to the properties worth Rs.50,000/-
committed an offence punishable under Section 436 read
with Section 149 IPC.

At head Ninthly; A-39, by causing the aforesaid C
explosion by throwing hand grenades, along with other co-
accused persons at Mahim Causeway, which resulted into
death, injuries and destruction of properties, also
committed an offence punishable under Sections 3, 4 read
with Section 6 of the Explosive Substances Act, 1908 D
read with Section 149 IPC.

254. The charges mentioned above were proved against
all the appellants (A-32, A-36 and A-39). The appellants have
been convicted and sentenced for the above said charges as
E
under:

Conviction and Sentence

(i) The appellants have been sentenced to death under
Section 3(3) of TADA and Section 120-B of IPC read with the F
offences _mentioned in the said charge. In addition, the
appellants were also ordered to pay a fine of Rs. 25,000/- each.
(charge firstly)

(ii) A-36 and A-39 have also been sentenced to suffer RI
for 10 years while A-32 has been sentenced to RI for 14 years G
for the offence punishable under Section 3(3) of TADA. The
appellants were also ordered to pay a fine of Rs.25,000/- each.
(charge secondly)

(iii) The appellants have been sentenced to death for the H
308 SUPREME COURT REPORTS [2013) 15 S.C.R.

A offence punishable under Section 3(2)(i)(ii) of TADA read with
Section 149 of IPC and were also ordered to pay a fine of
Rs.25,000/- each. (charge thirdly)

(iv) The appellants were also sentenced to RI for three
years under Section 148 of IPC. (charge fourthly).
8
(v) The appellants have been further sentenced to RI for
life under Section 302 read with Section 149 of IPC
accompanied with a fine of Rs. 25,000/- each, in default, to
further undergo RI for 6 months. (charge fifthly).
c
(vi) The appellants were sentenced to RI for 14 years under
Section 307 read with Section 149 of IPC accompanied with
a fine of Rs.10,000/- each, in default, to further undergo RI for
3 months. (charge sixthly).
D (vii) The appellants were sentenced to RI for 2 years under
Section 324 read with Section 149 of IPC. (charge
seventh ly).

(viii) The appellants were sentenced to RI for 10 years
E accompanied with a fine of Rs.5,000/- each, in default, to further
undergo RI for 1 month under Section 436 read with Section
149 of IPC. (charge eighthly).

(ix) A-39 has been sentenced to RI for 10 years
F accompanied with a fine of Rs.5,000/- each, in default, to further
undergo RI for 1 month, under Sections 3, 4 read with Section
6 of Explosive Substances Act, 1908 read with Section 149
IPC. (charge ninthly).

Evidence:
G
255. The evidence against the appellants is in the nature
of their own confessions, confessions made by oth!ijr co-
accused, the testimonies of prosecution witnesses, including
eye witnesses and documentary evidence on record. A brief
H account of the evidence brought on record in respect of each
YAKUB ABDUL RAZAK MEMON v. STATE OF 309
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

of the appellant is as under. A

256. Mr. Manish, learned counsel for the appellants, after
taking us through the relevant materials submitted that the
appellants joined the company of Tiger Memon and had gone
to Dubai and Pakistan due to circumstance and by force. He B
also submitted that they had no intention to go to Dubai and to
attend weapons training at Islamabad. Their main aim was to
secure some job at Dubai. He also pointed out that though they
participated in the smuggling activities of the Tiger Memon
group, they had no intention to involve in the terrorist act as C
claimed by the prosecution. According to the counsel, though
the prosecution has relied on their own confessional statements
inasmuch as all of them have retracted from their statements,
there is no need to give importance to those confessions. He
also prayed that considering their poverty and also that at the
relevant time they were in search of some job for their livelihood, D
the death sentence imposed by the Special Court is not
warranted. On the other hand, learned senior counsel for the
CBI, after taking us through their confessional statements,
confessional statements of other co-accused, the evidence of
PW-2 (Approver), eye-witnesses and recoveries as well as the E
loss of lives and damage to properties submitted that the
Special Court was justified in awarding capital punishment.

Conspiracy:
F
257. The appellants have attended several conspiratorial
meetings including the meeting at the residence of Babloo (AA)
where targets were selected and at the Al-Hussaini building
where ROX and other explosive materials were filled up in
vehicles and suitcases in pursuance of the said terrorist act.
The participation of the appellants (A-32, A-36 and A-39) in G
these meetings is a physical manifestation of the agreement.
The agreement to commit an illegal act can also be inferred
from the acts committed by the appellants, viz., receiving training
in Pakistan, participating in filling ROX in vehicles in the
H
310 ·SUPREME COURT REPORTS [2013] 15 S.C.R.

A intervening night between 11/12.03.1993 and throwing of hand
grenades at the Fishermen's Colony at Mahim on 12.03.1993
causing death of 3 persons and injuring 6 others. The object
behind the conspiracy is the ultimate aim of the conspiracy and
many means may be adopted to achieve this ultimate object.
B The means may even constitute different offences by
themselves, but as long as they are adopted to achieve the
ultimate object of the conspiracy, they are also acts of
conspiracy. Since we have elaborately discussed the issue
relating to conspiracy in the earlier part of our judgment, there
c is no need to refer to the same once again.

Confessional Statements:

Confessional Statement of Zakir Hussain Noor Mohd.
Shaikh (A-32)
D
258. Confessional statement of A-32 under Section 15 of
TADA has been recorded on 16.05.1993 (11:25 hrs.) and
19.05.1993 (17:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. In his confession, he made the
E following assertions:

(i) He knew Javed Chikna (AA) 'very well'.

(ii) He travelled to Dubai on 11.02.1993 along with
other co-accused and they were received by Ayub
F Memon (AA), brother of Tiger Memon, at Dubai
Airport.

(iii) He met Tiger Memon at a flat in Dubai and did not
protest when he was told by Javed Chikna that he
had come for training in handling arms and making
G
bombs.

(iv) He left for Islamabad from Dubai by a Pakistan
International Airlines flight.

H (v) They were taken out of the Islamabad Airport
YAKUB ABDUL RAZAK MEMON v. STATE OF 311
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]

without any checking. A

(vi) He was renamed as 'Shakir' and other co-accused
were also given fake names when they were in
Pakistan.
B
(vii) Tiger Memon also joined them in training at
Pakistan and stayed with them for two days.

(viii) He was trained in firing AK-56 rifle, preparation of
bombs using ROX (black soap), using detonator
and to throw hand grenades. c
(ix) After ret.urn fn;im Pakistan, he along with A-36, A-
39 and other conspirators met in a flat where Tiger
Memon brought a copy of holy Quran and everyone
including him, took oath to keep the training in
D
Pakistan a secret and that after reaching Bombay
they would take revenge. Tiger Memon .also
delivered a lecture on communal riots in Bombay.

(x) On 07.03.1993, he attended the meeting in the
house of Babloo (AA) in Bombay where Tiger E
Memon ordered them to cause riots.

(xi) On 10.03.1993, after the meeting in the house of
Mobina @ Bayamoosa Bhiwandiwala (A-96), he
along with A-39 and· other co-accused went to F
survey Bharat Petroleum Refinery as a prospective
target for blasts.

(xii) On the same day, Tiger Memon told them to throw
hand grenades at Fishermen's colony at Mahim.
G
(xiii) EiJCh of the appellants (A-32, A-36 & A-39) filled
ROX in vehicles at the Al-Hussaini building on the
night of 11.03.1993.

(xiv) On 12.03.1993, at 2:30 p.m., A-32, A-36 and A-39
H
312 SUPREME COURT REPORTS [2013] 15 S.C.R.

A along with Bashir (A-13), Mahmood, Salim
Dandekar and Moin (A-43) left Al-Hussaini building;
thereafter, they all threw hand grenades at
Fishermen's Colony at Mahim. He threw two hand
grenades and saw mirny people getting injured.

B Reference to A-36 and A-39

(i) A-36 and A-39 joined the training camp in Pakistan.

(ii) A-36 and A-39 also took oath on holy Quran to keep
c the fact about receiving training in Pakistan a secret
and to take revenge after their return to Bombay.

(iii) A-36 and A-39 participated in filling RDX at Al-
Hussaini Building and in throwing hand grenades
at Fishermen's Colony at Mahim.
D
Confessional Statement of Abdul Khan Akhtar @ Yakub
Khan Akhtar Khan (A-36)

Confessional statement of A-36 under Section 15
E of TADA has been recorded on 19.05.1993 (17:40
hrs.) and 21.05.1993 (18:20 hrs.) by Shri Krishan
Lal Bishno (PW-193), the then DCP, Zone 111,
Bombay. In his confession, he made the following
assertions:-
F (i) He knew Shahnawaz Qureshi (A-29) very well and
also knew that he was a well-known criminal.

(ii) He went to Dubai in February, 1993 along with
Shehnawaz and lrfan Chougule (AA) and met Gullu
G @ Gui Mohd. (A-77) at Dubai Airport. They were
received by Ayub Memon (AA), brother of Tiger
Memon, at the Airport.

(iii) He met Tiger Memon at Dubai, and thereafter, left
for Pakistan to receive training in use of arms and
H
YAKUBABDUL RAZAK MEMON v. STATE OF 313
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]

explosives. A

(iv) He along with A-32 were given training in handling
AK-56 rifles, pistols, detonators, safety fuse, hand
grenades, rocket launchers, use of RDX in making
bombs and petrol bombs.
B
(v) After return from Pakistan, he along with other co-
accused took oath on holy Quran to keep the
training in Pakistan a secret and to wage 'Jehad'.

(vi) In the intervening night between 11/12.03.1993, he c
and other co-accused, filled ROX in vehicles at the
Al-Hussaini building.

(vii) On 12.03.1993, he along with A-32, A-39, Bashir
(A-13), Moin (A-43), Mehmud and Salim drove to
Fishermen's colony at Mahim and threw hand D
grenades.

Reference to A-32 and A-39

(i) A-32 and A-39 took training in Pakistan
E
(ii) A-32 and A-39 took oath on holy Quran to wage
Jehad in Bombay.

(iii) A-32 and A-39 threw hand grenades at Fishermen's
coloriy at Mahim. F

. Confessional Statement of Feroz @ Akram Amani Malik
(A-39)

Confessional statement of A-39 under Section 15 of
TADA has been recorded on 19.04.1993 (22:30 hrs.) and G
23.04.1993 (20:50 hrs.) by Mr. P.O. Pawar (PW-185), the then
DCP, Zone V, Bombay. In his confessional statement, he made
the following assertions:-

H
314 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (i) He deposed that he was the brother-in-law of co-
accused Fazal Abdul Rehman (A-76). He left for
Dubai on 08.02.1993 along with Niyaz Mohd. @
Aslam Iqbal Ahmed Shaikh (A-98).

(ii) He and other co-accused were received by Ayub
B
Memon (AA), brother of Tiger Memon, at Dubai
Air~ort. He also met Nasim Ashraf Shaikh Ali
Barmare (A-49) at Dubai.

(iii) He left for Pakistan from Dubai in a PIA flight along
c with other co-accused where a person took them
out of the Islamabad Airport without any immigration
check.

(iv) He was renamed as 'Akram' in Pakistan and he
D received weapons training along with others where
they were trained to assemble guns and throw
bombs.

(v) Tiger Memon attended training in Pakistan and told
the co-accused that they have to blast bombs at
E Bombay.

(vi) When they returned to Dubai, he and other co-
accused took oath on holy Quran to keep the
training in Pakistan a secret.
F
(vii) On 10.03.1993, he along with PW-2 went in a car
to Shiv Sena Bhawan and a petrol pump nearby to
survey .the prospective targets. He also went to
Chernbur Refinery along with PW-2 to survey the
target.
G
(viii) On 12.03.1993, he along with A-32, A-36, Bashir
(A-13) Main, (A-43), Salim and Mahmud threw hand
grenades at the Fishermen's Colony at Mahim.

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 315
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Reference to A-32 and A-36 A

(i) A-32 and A-36 joined A-39 for training in Pakistan.

(ii) A-39 went along with A-32 to surv~y the Chembur
Refinery.
B
(iii) A-32 and A-36 also threw hand grenades at the
Fishermen's Colony at Mahim.

259. On perusal of the confessional statements made by
the appellants, it is established that the appellants:
' c
(a) attended training camp in Pakistan;

(b) took oath on holy Quran to do Jehad;

(c) attended meetings at the residence of Babloo (AA)
0
and Mobina; and

(d) threw hand grenades at Fishermen's Colony at
Mahim.

260. It is also clear that the confessions made by the E
appellants are truthful and voluntary and were made without any
coercion. All safeguards enumerated under Section 15 of
TADA and the rules framed thereunder have been duly
complied with while recording the 9onfessions of the appellants.

Retraction Statements

261. It is contended by learned counsel for the appellants
that the above mentioned confessions should not be relied upon
since they were subsequently retracted by A-32 and A-39 and
the denial of the voluntariness of the confessional statement G
made by A-36 has been recorded by the Designated Court in
the statement under Section 313 of the Code. In the instant
case, it was brought to our notice that retractions were not
made at the first available opportunity by the accused persons.
After arrest, the accused persons were produced before the H
316 SUPREME COURT REPORTS [2013) 15 S.C.R.

A Court number of times in 1993 and 1994. While the confessions
were recorded in April and May 1993, retractions have been
made only in May, 1994, i.e. after a gap of 1 year. Since we
have elaborately discussed the contention raised by learned
counsel with regard to the same in the main appeal, there is
B no need to refer the same once again.

Confessional Statements of co-accused:

Confessional Statement of Bashir Ahmed Usman Gani
Khairulla (A-13)
c
262. Confessional statement of A-13 under Section 15 of
TADA has been recorded on 16.05.1993 (10:30 hrs.) and
18.05.1993 (17:15 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. The prosecution submits that
0 the confession of A-13 is pertinent since he was one of the co-
accused who accompanied the appellants to the Fishermen's
colony at Mahim on 12.03.1993. His confession corroborates
the confessions of the appellants in material aspects.

Reference to A-32
E .
(i) A-32 attended a conspiratorial meeting on
10.03.1993 at the residence of Mobina.

(ii) On 11.03.1993, at 11.00 p.m., A-32 took him to the
house of Tiger Memon at the Al-Hussaini building.
F
(iii) He along with A-32, A-39, A-36, Saleem, Mehmood
and Main went to throw hand grenades at Mahim
Slope Cause-way on 12.03.1993.

G Reference to A-36

(i) A-36 actively participated in preparation of vehicle
bombs by using ROX at Al-Hussaini Building
compound in the intervening night between 11 /
12.03.1993.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 317
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

(ii) In the morning of 12.03.1993, A-36 was present at A
Al-Hussaini building to execute his job of throwing
hand grenades as assigned by Tiger Memon.

(iii) He along with A-36, A-32, A-39, Saleem Dandekar
and Mehmood went to Mahim Slope Cause-way
8
and threw hand grenades at hutments.

Reference to A-39

He along with A-39, A-32, A-36, Saleem, Mehmood and
Moin threw hand grenades at Mahim Slope way. c
Confessional Statement of Mohd. Farooq Mohd. Yusuf
Pawale (A-16)

Confessional statement of A-16 under Section 15 of TADA
has been recorded oh 20.05.1993 (16:30 hrs.) and 22.05.1993 D
(16:45 hrs.) by Sanjay Pandey (PW-492), the then DCP, Zone-
VIII, Bombay. In his confessional statement, he made the
following assertions with regard to the appellants:-

Reference to A-32 E
A-32 attended training in handling arms and explosives in
Pakistan.

Reference to A-39
F
He attended the meeting held by Tiger Memon on
07.03.1993 in which Tiger informed that he was going to cause
riots in Bombay.

Confessional Statement of Mo.hd. Iqbal Mohd. Yusuf
Shaikh (A-23) G
Confessional statement of A-23 under Section 15 of TADA
has been recorded on 20.05.1993 (10:00 hrs.) and 22.05.1993
(10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then
DCP, Zone Ill, Bombay. He made the following assertions:- H
318 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (i) In the intervening night between 11/12.03.1993, A-
32 filled the vehicles with ROX along with other co-
accused at Al-Hussaini building.

(ii) On 12.03.1993, A-36 filled the vehicles with ROX
B along with other co-accused at Al-Hussaini building.

Confessional Statement of Shahnawaz Abdul Kadar
Qureshi (A-29)

Confessional statement of A-29 under Section 15 of TADA
c has been recorded on 18.05.1993 (18:30 hrs.) and 21.05.1993
(14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then
DCP, Zone Ill, Bombay. In his confessional statement, he made
the following assertions with regard to the appellants:-

Reference to A-32
D
(i) A-32 was present in the training camp in Pakistan
when he and others reached there.

(ii) A-32 was present at Al-Hussaini Building in the flat
E of Tiger Memon along with Tiger, Shafi, Anwar,
Bashir Muchhad, Nasim, Parvez and Sardar Khan.

(iii) A-32 received Rs.5,000/- from Tiger Memon

Reference to A-36
F
(i) A-36 was present in the training camp in Pakistan
when he and others reached there.

(ii) A-36 received training in handling of arms and
explosives in Pakistan.
G
(iii) A-36 returned from Dubai along with him, Feroz,
Zakir a:nd Mohd. Rafiq.

(iv) A-36 was present at Al-Hussaini Building compound
on the night of 11.03.1993 along with Tiger, Shafi,
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 319
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]
Anwar, Bashir Muchhad, Nasim, Parvez, Zakir and A
Sardar Khan where vehicle bombs were prepared.

(v) On 12.03.1993, at about 12:30 noon, A-36 was
present in the flat of Tiger Memon at Al-Hussaini
Building along with Javed Chikna, Bashir Muchhad, B
Bashir Mahimwala, Shafi, Usman, Salim Dandekar,
Anwar and Zakir.

(vi) A-36 received Rs.5,000/- from Tiger Memon.

Reference to A-39 c
(i) A-39 was present in the training camp in Pakistan
when he and others reached there.

(ii) A-39 returned from Dubai along with him and A-29
Zakir, Abdul, Akhtar and Mohd. Rafiq. D

Confesional Statement of Nasim Ashraf Sherali Barmare
(-49)

Confessional statement of A-49 under Section 15 of
TADA has been recorded on 16.05.1993 (09:30 hrs.) and E
18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then
DCP, Zone 111, Bombay. He made the following assertions:-

Reference to A-32
F
(i) A-32 participated in the weapons training in
Pakistan.

(ii) A-32 was present at the Al-Hussaini building in the
morning of 12.03.1993.
G
Reference to A-36

(i) A-36 participated in the training in Pakistan and
after training returned to India via Dubai.

H
320 SUPREME COURT REPORTS [2013) 15 S.C.R.

A (ii) A-36 was involved in filling of ROX in the vehicles
on the night of 11.03.1993.

Reference to A-39

A-39 also received weapons training in Pakistan.
B
Confessional Statement of Salim Rahim Shaikh (A-52)

Confessional statement of A-52 under Section 15 of
TADA has been recorded on 15.04.1993 and 18.04.1993 by
Mr. P.O. Pawar (PW-185), the then DCP, Zone V, Bombay. He
c made the following assertions:-

Reference to A-32

(i) On 11.02.1993, A-32 along with other co-accused
o persons left Bombay and reached Dubai.

(ii) On 12.02.1993, A-32 along with others stayed in a
building opposite to the Hotel Al-Khaleez in Dubai
where Tiger Memon met them.

E (iii) On 13.02.1993, A-32 along with other co-accused
attended the meeting in the same building in which
Javed Chikna and Tiger Memon talked abo~t the
communal riots in Bombay and Gujarat.

F (iv) On 14.02.1993, A-32 along with other co-accused
left Dubai and reached Islamabad where they were
taken to the training camp for training in firing arms,
handling LMG rifles, throwing of hand grenades,
use of ROX, detonators and timer pencils.

G (v) On 11.03.1993, A-32 was seen at the residence of
Tiger Memon assisting in loading of vehicles with
ROX for causing bomb blasts.

(vi) On 12.03.1993, he along with other persons
H boarded the Maruti Car driven by him (A-32) in
YAKUBABDUL RAZAK MEMON v. STATE OF 321
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
which 30 hand grenades were kept and they took A
it to the Mahim Slopeway, Koliwada where he along
with others threw hand grenades at Fishermen's
Colony causing blasts.

Reference to A-39
B
(i) A-39 was present in the training camp in Pakistan
where they were imparted training in use of arms
and explosives.

(ii) On 11.03.1993, A-39 (referred to as 'Akram') was c
seen at the residence of Tiger Memon at the Al-
fiussaini building along with other accused persons
where vehicles were being loaded with ROX.

(iii) A-39 along with other conspirators boarded the
Maruti Car to Mahim Slopeway, Koliwada and threw D
hand grenades. After that, he took over the bag of
remaining hand grenades and the pistol given to
him earlier and left the vehicle near Bandra
Reclamation.
E
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)

Confessional statement of A-57 under Section 15 of
TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri
Krishan Lal Bishnoi (PW-193), the then DCP, Zone Ill, Bombay.
F
He made the following assertions:-

Reference to A-32

(i) A-32 took out rifles from the sack and cleaned them.

(ii) A-32 carried food for other co-conspirators at the G
Al-Hussaini building.

Reference to A-39

(i) A-39 was a member of the meeting addressed by H
322 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Tiger Memon, where he was asked to take revenge
against the killings of Muslims in Bombay and
Surat.

(ii) He along with others were paid Rs.5,000/- by Tiger
Memon in the said meeting.
B
Confessional Statement of Nasir Abdul Ka<lar Kewal @
Nasir Dhakla (A-64)

Confessional statement of A-64 under Section 15 of
c TADA has been recorded on 22.01.1995 and 24.01.1995 by
HC Singh (PW-474), the then Superintendent of Police, CBI/
SPE/STF, New Delhi. A-64 made the following assertions:

Reference to A-32

D (i) A-32 was present at Dubai when A-64 and others
reached there.

(ii) A-32 attended conspiratorial meetings at Dubai.

(iii) A-32 received training in use of arms and
E explosives in Pakistan.

Reference to A-39

(i) A-39 went to Pakistan by a PIA Flight and received
F training.

(ii) A-39 attended a conspiratorial meeting on
10.03. 1993 at the residence of Mobina.

(iii) A-39, along with other co-accused, on being asked
by Tiger Memon whether they were prepared,
replied in the affirmative.

(iv) A-39 actively participated in preparation of vehicle
bombs at the Al-Hussaini Building on the night of
YAKUB ABDUL RAZAK MEMON v. STATE OF 323
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J]

11.03.1993 by using RDX which had landed at A
Shekhadi.

Confessional Statement of Mohd. Rafiq Usman Shaikh
(A-94)

Confessional statement of A-94 under Section 15 of B
TADA has been recorded on 14.05.199'J (18:30) and
16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then
DCP, Zone Ill, Bombay. He made the following assertions:-

Reference to A-32 c
On 10.03.1993, A-32 accompanied with Niaz @ Aslam,
Usman (PW-2) and Feroz (A-39) went to meet Tiger Memon
in a white Maruti Car to a building behind Bhabha Hospital. In
the said meeting, Tiger enquired as to who knows driving etc.
In the said meeting, he also distributed Rs.5,000/- to each one D
of them.

Reference to A-36

A-36 received training in arms in Pakistan. Training was E
also given in handling of pistols, rifles, hand grenades, rocket
launchers and preparation of RDX bombs.

Reference to A-39

(i) A-39 received training in arms in Pakistan. Training F
was also given in handling of pistols, rifles, hand
grenades, rocket launchers and making of RDX
bombs.

(ii) On 10.03.1993, A-39 along with Nasim @ Aslam, G
Usman, Rafiq and Zakir went to meet Tiger Memon
in a white Maruti Car to a building behind Bhabha
Hospital where Tiger enquired as to who knows
driving etc. In the said meeting, Tiger also

H
324 SUPREME COURT REPORTS [2013] 15 S.C.R.

A distributed Rs. 5,000/- to each one of them.

Confessional Statement of Niyaz Mohd. @ Aslam Iqbal
Ahmed Shaikh (A-98)

Confessional statement of A-98 under Section 15 of
B TADA has been recorded on 17.05.1993 (14:30 hrs.) and
20.05.1993 (11 :30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone 111, Bombay. He made the following
assertions:-

c Reference to A-32

(i) A-32 received training in handling of different types
of arms and ammunitions, ·hand grenades and
making of bombs by using RDX.

D (ii) On 01.03.1993, after all others also reached Dubai,
A-32, at the instance of Tiger Memon, took oath
after placing his hands on holy Quran. He also
heard about the speech given by Tiger regarding
the riots in Bombay.
E
Reference to A-36

(i) A-36 received training in handling of different types
of arms and ammunitions, hand grenades and
making of bombs by using RDX.
F
(ii) On 01.03.1993, A-36 along with other conspirators,
at the instance of Tiger Memon, took oath in Dubai
after placing his hands on holy Quran. A-36 also
heard about the speech given by Tiger regarding
G the riots in Bombay.

Reference to A-39

(i) On 08.02.1993, A-39 along with Niyaz proceeded
to Dubai. At the airport, he was received by Ayub
H
YAKUBABDUL RAZAK MEMON v. STATE OF 325
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Memon and stayed with Tahir. A

(ii) A-39 received training in handling of different types
of arms and ammunitions, hand grenades and
making of bombs by using ROX. During training, his
assumed name was 'Akram'. B
(iii) On 01.03.1993, after all others also reached Dubai,
A-39, at the instance of Tiger, took oath after
placing his hands on Quran. He also heard about
the speech given by Tiger regarding the riots in
Bombay. c
Confessional Statement of Mohd. Parvez Zulfikar Qureshi
(A-100)

Confessional statement of A-100 under Section 15 of
TADA has been recorded on 15.04.1993 (23:30 hrs.) and D
17.04.1993 (17:00 hrs.) by Sanjay Pandey (PW 492), the then
DCP, Zone-VIII, Bombay. He made the following assertions:-

Reference to A-32
E
(i) A-32 participated in the training of fire arms and
ammunitions in Pakistan along with his associates
during February, 1993.

(ii) On 02.03.1993, A-32 came back to Dubai, where
Tiger Memon gave 200 Dirhams to each one of F
them and administered oath on Quran to take
revenge against Hindus for demolition of Babri
Masjid and their tyranny perpetrated on them.

(iii) A-32 was present at the residence of Tiger Memon G
at Al-Hussaini building on the night of 11.03.1993
along with other co-accused.

Reference to A-39

A-39 participated in the training of. fire arms and H
326 SUPREME COURT REPORTS [2013] 15 S.C.R. _.

A ammunitions at Islamabad, Pakistan along with his associates
during Feb. 1993.

263. A perusal of the confessional statements of all the
above accused viz, A-13, A-23, A-29, A-49, A-52, A-57, A-64,
B A-94, A-98 and A-100 clearly establish the fact that the
appellants i.e , A-32, A-36 and A-39 were present at Al-
Hussaini Building in the night inteNening 11 /12.03.1993 and
actively participated in filling of ROX in the cavities of vehicles
which were later planted at various targets in Bombay causing
C irreparable damage to life and property. It is also sufficiently
established that they went to Pakistan via Dubai and received
training in handling of arms and ammunitions at the hands of
Tiger Memon and all of them also took oath on holy Quran to
take revenge for the riots in Bombay and to keep the training
in Pakistan a secret. It is also sufficiently proved that in
D pursuance of the said conspiracy, all the appellants herein threw
hand grenades in Fishermen's Colony at Mahim on 12.03.1993
causing death of 3 persons and injuring 6 others.

Deposition of Prosecution Witnesses:
E
Deposition of Mohammed Usman Ahmed Zan Khan (PW-
2) (Approver)

264. PW-2 deposed as under:-

F Reference to A-32

(i) He knew A-32 as 'Zakir' and identified him in the
court.

(ii) He accompanied A-32 and other co-accused
G persons to Dubai in February, 1993.

(iii) Ayub Memon (AA), brother of Tiger Memon,
received them at Dubai Airport and Tiger Memon
also visited them at Dubai.
H
• YAKlJB ABDl,JL RAZAK MEMON v. STATE OF • 327
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
(iy) In Dubai, A-32 informed PW-2 and other co~ A
accused persons that Tiger Memon had asked
them to come to Dubai Airport. All the accused
persons, including A-32; then boarded a flight to
Islamabad, Pakistan. ·

(v) On reaching Islamabad, all the accused· persons B
including A-32, were taken out of the Airport without
any immigration check.

(vi) In Pakistan, all of them received training in use of
ROX, pencil detonators, guns and hand grenades. C

(vii) On return to Dubai, all the accused persons met at
a flat where Tiger Memon was also present. In this
conspiratorial meeting, they discussed about the
riots in Bombay and took oath on holy Quran to take
0
'~ ~ revenge and not to disclose the secret of the training
I in Pakistan to anyone .. ·

(viii) On 08.03.1993, several accused persons including
, ) · .A-32 met at.the residence of Babloo (AA) where
targets were selected by Tiger Memon .. · E

· (ix) A-32 attended another meeting on 10.03.1993, at
. Sandra .where he met Tiger Memon and other co-
.accused and they discussed about the targets and
, . A-32 gave his report o'ii Chembur Refinery. F

(x) (PW-2 along with A-32 conducted the survey of
· : Sha.rat Petroleum Refinery as a possible target of
-blasts.

Reference to A-36 G
·1
(i) · A-36 also joined training in Pakistan.

(ii) . A-36 attended the meeting at the Al-Hussaini
building on 11.03 ..1993 where targets were
H
328 , SUPREME COURT REPORTS [2013] 15 S.C.R.

A discussed .. :
-- !•"•" r::;
(iii) - A-36 received four hand grenades from Javed
Chikna (AA) on 12.03.1993 and was instructed to
·throw the same at Fishermen's colony at Mahim .
.-
B Reference to A-39

(i) A-39 joined training in Pakistan

--- · - (ii) - In Dubai, A-39 also took oath on holy .auran along
- with other co:accused at. the instance of Tiger
c · Meinori to keep the training in Pakistan a secret.
-
(iii) - A-39 was present in the meeting at .Shakeel's place
_on· 07 .03.1993 where Tiger. Memcin" discussed
abouttargets. _ <· · ·. . -· , · '
fo , ' , ' •,.

(iv) · On 11.03.1993, A-39 along with other co-accused
persons went to survey Bharat Refinery as a
prospective target.
: 'l - . _..,. . '\).'
j' '. ..
,.. 265 .. A perusal· of the deposition of PW-2 clearly
E , establishes and fully corroborates the confessions of the
appellants in all material particulars that the appellants played
an active and. crucial role in' achieving the object of the
conspiracy. It further corroborates the fact that they traveled to
Pakistan and_ received training in' handling of arms and
F ammunitions, explosive substances and throwing of hand
grenades. They attended meetings at Dubai and in India and
also tci6k oath on holy Quran to take revenge. They participated
in filling ROX in vehicles which were used to cause explosions
at targets and hurled hand grenades at innocent people in
G Fishermen's colony at Mahim, on 12.03.1993>

Deposition· of Laxman Patil• (PW-5)

. PW-5 is a resident of the Fishermen's ColonY'and is an
eye-witness to the incident. He witnessed the incident while he
H
YAKUBABDUL RAZAK MEMON v. STATE OF 329
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
was waiting on the road. A . ·

(i) He identified A-52, A-32, A-36, A-13 and A-43 in
court.

(ii) He participated in the identification parade dated
15.05.1993 conducted at Mahim Police Station by B
Special Executive Magistrate (PW-469).

(iii) He also identified the car bearing No. MP-13-D-
385 in which the appellants came to Mahim
slopeway in order to throw hand grenades. c
.•
Deposition of Santosh Patil (PW-6)

PW-6 deposed as follows:

(i) He is a resident of Fishermen's Colony at Mahim. D
He witnessed the said incident while he was
waiting near Municipal School at Mahim Slope.

(ii) He deposed that the appellants came in .a Maruti
Van to the said Colony and the number of the said
vehicle was MP 385. E

(iii) He identified A-52, A-32, A-36, A-13, A-43 and A-
39 in the Identification Parade conducted in the
Court on 20.09.1995.
F
(iv) He also identified A-32, A-36 and A-39 in the
identification parade dated 15.05.1993 conducted
at Mahim Police Station by Special Executive
Magistrate, PW-469.

Deposition of Shashikant Shetty (PW 13) G

PW-13 is an eye-witness and a resident of Mahim
Fishermens' Colony. He deposed as under:-

(i) He came out of his house after hearing the sound H
330 SUPREME COURT REPORTS (2013] 15 S.C.R.

A of explosion.

(ii) He identified A-52, A-32, A-36, A-39, A-13 and A-
43 in Court.

(iii) He participated in the identification parade dated
B 15.05.1993, conducted at Mahim police station by
Special Executive Magistrate PW-469.

(iv) He identified the Maruti Van in which the accused
persons came to Fishermen's Colony as MP-D-
C 13-385.

(v) PW-13 lodged the First Information Report in
respect of the explosions at Fishermen's Colony.

· 266. From the depositions of PWs-5, 6 and 13, the eye-
D witnesses, the identification of the appellants as those persons
Who threw hand grenades towards Fishermen's Colony at
Mahim on 12.03.1993 has been established. They also
identified the Maruti Van bearing No. MP-D-13-385 as the
vehicle in which the appellants came to the place of incident
E and fled away. Depositions of the said witnesses fully establish
the charge in respect of the incident at Fishermen's colony
against the appellants.

Investigation, Recoveries and FSL Report:
F 267. On 12.03.1993, Shantaram Gangaram Hire (PW-
562), Police Officer, visited the blast site i.e., Fishermen's
colony at Mahim and prepared spot panchnama (Exh. 1942)
in the presence of panch witnesses Dayaram Timbak Akare
and Mahendra Sadanand Mehre. PW 562, in the presence of
G Tamore (PW-330) and experts collected the articles from the
blast site vide Panchnama Exh. No. 1221 which were sent to
the Forerisic Science Laboratory ("FSL") for opinion. The FSL
Report Exh. 1943 proved remnants to be explosives and part
of hand grenades.
H
YAKUB ABDUL RAzAK MEMON v. STATE OF 331
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

Evidence with regard to injured victims and deceased: A

268. It is seen from the records that in July, 1993, Achyut
Shamrao Pawal (PW-542), Police Inspector, collected the injury
certificates of the following injured persons, namely, Mr.
Gurudutt Agaskar, Ms. Rajashri Agaskar and Ms. Sheetal
B
Kenihas from Bhaba Hospital which amply prove that they
sustained injuries during the blast. Injured Shashikant Shetty
(PW-13) and Sheetal Keni (PW-412) also proved to have
sustained injuries during the blast. Dr. Wadekar (PW-641) and
Dr. Krishna Kumar (PW-640) were the doctors who have
proved the injury certificates issued to PW-13 and Sheetal Keni
c
(PW-412) which are Exh. Nos. 2374 and 2372 respectively.

269. Gajanan Tare (PW-413) (husband of the deceased
Guiab Tare) and Karande (PW-414) (nephew of the deceased
Hira Dhondu Sawant) claimants of two bodies, have proved the . D
death of Mrs. Guiab Tare (wife of PW-413) and Smt. Hira
Dhondu Sawant (PW 414's aunt)' in the said incident. Dr. Pujari
(PW-482) and Gangadhar Uppe (PW-480) have established
the cause of death to be the injuries received on 12.03.1993.
Achyut Shamrao Pawal (PW-542) also proved the death of 3 E
'
persons at Fishermen's Colony in the said incident.

Vehicle used for committing the act:

270. The prosecution has brought to our notice that the
vehicle used by the appellants for traveling to Fishermen's F
Colony was purchased by Shafi (AA) which has been proved
through the following witnesses:

Deposition of Kailash Govind Rao Baheti (PW 342)

He deposed as follows:- G

"On 18.01.1993 I had received a telephone call given by
Shakil Hasham from Bombay. Shakil requested me. to book
one red coloured Maruti Van in the name of Asif Darvesh
resident of M.G. Road, Indore and anOther new Maruti Van
332 SUPREME COURT REPORTS [2013] 15 S.C.R.

A of blue colour in the name of Shri Kasam Ahmed residing
at Indira Nagar, Ujjain. He also requested me to register
both the Maruti Van at Indore and send the same to
Bombay. He also told me that the payments of the same
would be made at Bombay to the driver.'/ quoted a price
B of Rs.1,69,000/- per vehicle inclusive of registration and
transport charges. I was having red coloured Maruti Van
brought by me from Mis Bhatia & Company, Gurgaon,
Haryana and blue coloured Maruti Van brought from Vipul
Motors, Faridabad, Haryana, in my stock. I had brought
c both the said vehicles by making advance payment. After
receipt of booking from Shakil Hasham for red and blue
coloured brand new Maruti Vans, I informed the details of
the purchasers to Mis Bhatia Company and M/s Vipul
Motors. After receipt of the said letters and bills from both
the said companies in the name of purchasers who wanted
D
red and blue Maruti Vans I sent papers of both the Vans
for registration to RTO. The blue coloured Maruti Van was
registered in the name of Kasam Ahmed at Ujjain RTO.
The blue coloured Maruti Van could not be registered at
Indore due to lack of E-Form necessary for registration.
E Thereafter, I sent both the said Vans to Bombay to Shakil
Hasham. Shakil Hasham received the delivery and paid
Rs.3,38,000/- to my drivers. My drivers gave the said
amount to me. I made the necessary entries in my office
record for sending the said Vans to Bombay to Shakil
F Hasham after purchasing the same for the parties told by
him. The RTO Authority at Ujjain had given registration
Number MP-13-0-0385 to "blue coloured Maruti Van.
Today I am not remembering the engine number and
chassis number of the said Maruti Van.""
G
Depostion of Shakeel Suleman Hasham (PW-366)

He deposed that he had asked PW-342 to arrange for two
Maruti Vans (red and blue) in February, 1993. Both the vans
H were purchased in Madhya Pradesh and the blue Maruti Van
YAKUB ABDUL RAZAK MEMON v. STATE OF 333
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]

was registered in Ujjain with the registration number MP-13- A
D-0385. It is submitted that this number and the said blue Maruti
Van has been identified by PWs-5, 6. and 13 in their
depositions as the vehicle which was involved in the said
incident at Fishermen's Colony. PW 366 further deposed:
B
"In the same month (February, 1993) I had also arranged
for one blue coloured and another red coloured Maruti
Vans also registered at Madhya Pradesh for Suleman
Lakdawala. The said vehicles were registered at Madhya
Pradesh, Indore, in the name of the purchasers given to C
me by Suleman Lakdawala. I had given the work of
registration to one Kailash Baheti of Indore. Both the said
vans were insured by Insurance Agent Rakesh Tiwari
before giving the same to Su1leman Lakdawala. Both the
said vehicles had arrived from Indore. I had sent the same
to the petrol pump of Suleman and asked him to take the D
delivery from the said drivers Who had brought the delivery
of the said vehicles. Accordingly, he took the delivery by
making payment to the drivers."

The said vehicles were insured through Vijay A. Tamore E
(PW-338).

Evidence of travel to Dubai for training in Pakistan:

271. The Immigration Officer, Asmita Ashish Bhosale (PW-
215) proved the Embarkation card ('X'-314') that was F
submitted at the Sahar Airport on 11.02.1993 by A-32 who was
flying to Dubai. The Immigration Officer, Vishambhar Yadavrao
Milke (PW-212) proved the Disembarkation card given by A-
32 at the time of arrival in Bombay from Dubai on 03.03.1993.
The depositions of PWs-215 and 212 establish that A-32 left G
India on 11.02.1993 for Dubai and returned on 03.03.1993.
These depositions further corroborate the confessional
statement of A-32 wherein he admitted to flying to Dubai on
11.02.1993 and returned on 03.03.1993.
H
334 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 272. The Immigration Officer, Chandrakant Gangaram
Sawant (PW-244) proved the Disembarkation card given to him
by A-39 while flying to Dubai from Bombay on 08.02.1993. It is
submitted that the deposition of PW-244 corroborates the
confessional statement of A-39 wherein he stated that he left
B for Dubai on 08.02.1993 from Bombay.

273. The Immigration Officer, Ajay Krishnaji Lonaare (PW-
209) proved the Disembarkation card ('X-306') submitted by
A-36 at the time of his arrival from Dubai to Bombay on
C 03.03.1993. This deposition further corroborates the
confessional statement of A-36 wherein he stated that he
returned from Dubai on 03.03.1993.

274. The evidence on record, particularly, as discussed
above, sufficiently establish that each of the appellants, namely,
D A-32, A-36 and A-39 were actively involved in the conspiracy
of causing blasts in Bombay in the following manner:

(i) The appellants attended conspiratorial meeting at
Dubai on 01.03.1993 where they took oath on holy
Quran to keep their training in Pakistan a secret.
E
(ii) On 08.03.1993, the appellants (A-32 and A-39)
attended conspiratorial meeting at Babloo's
residence.

F (iii) On 10.03.1993, the appellant (A-32) attended
conspiratorial meeting at Mobina's residence.

(iv) On 11/12.03.1993, the appellants (A-36 and A-39)
attended conspiratorial meeting at the Al-Hussaini
building.
G
{v) The appellants received weapons training in
Pakistan;

(vi) On 11/12.03.1993, the appellants participated in
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 335
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]
filling of ROX in vehicles at the Al-Hussaini building A
and;

(vii) On 12.03.1993, the appellants threw hand
grenades towards the Fishermen's colony which
resulted in death of 3 persons and injuring 6 others. B

275. It is contended by Mr. Manish that the appellant (A-
32) was working as a floor mechanic prior to 1992 December
riots, and since then he was jobless and was lured to go to
Dubai as it attracts a large number of Indian mechanics,
plumbers, electricians, etc. and he willingly went to Dubai not C
knowing that he was to attend a training camp in Pakistan. It is
further contended that he was forced to go to Pakistan since
his passport was taken from him in Dubai, and accordingly, he
had no choice but to follow the instructions. He thus did not
willingly participated in the conspiracy but was forced to carry D
out conspiratorial acts.

276. As against this argument, learned senior counsel for
the CBI pointed out that this line of defence has never been
urged by the appellant before the trial Court. It is further pointed E
out that had there been any compulsion, the appellant could have
opted out of the conspiracy upon his return from Dubai, which
he did not do. Further, on a holistic reading of the entire body
of evidence, it is clear that from the very beginning, the
appellants have willingly participated in the successful execution F
of the object of conspiracy. The argument of coercion is a
belated argument and necessarily a product of afterthought. It
is further contended on behalf of the appellant (A-32) that the
reasons for his 'involvement in the conspiracy were (i) money,
(ii) provocation, and (iii) riots. It is further contended that there
is no record anywhere that someone will take care of the family G
of the appellant (A-32) after the blasts. In such a situation,
appellant would not have willingly participated in such a
conspiracy without having thought about his family. In reply,
learned senior counsel for the CBI contended that he was fully
conscious of the conspiratorial acts and willingly participated H
336 SUPREME COURT REPORTS [2013] 15 S.C.R

A in the conspiracy. The loss, if any, suffered by the appellant
during the riots does not justify his terrorist act of killing innocent
people. The fact that appellant (A-32) was fully conscious of his
acts is further established from his conduct subsequent to the
incident, wherein he traveled to Karnataka immediately after
B the blasts in order to evade arrest.

277. The fact that appellant (A-32) was actively involved
in the conspiratorial acts is clear from his own confession
wherein he has stated that after their return to Dubai from
C Pakistan, he along with other co-conspirators took oath on holy
Quran that they will take revenge for the Bombay riots and will
not disclose the training in Pakistan to anyone.

278. All the aforesaid acts clearly establish the fact that
the appellants knowingly and willingly participated in the
D conspiratorial acts and were fully aware and conscious of the
fact that they were participating in a conspiracy with a grave
design.

279. It is further contended by the counsel for the appellants
E that the Al-Hussaini building is located in a densely populated
area within a few hundred meters of Mahim Police Station and
it is strange that neither the statement of the security guard was
recorded nor any of the neighbours saw anyone filling RDX in
vehicles in the intervening night between 11/12.03.1993.
Therefore, learned counsel for the appellants vehemently
F contended that the prosecution story is fabricated and no
reliance can be placed on it. But it is amply clear from the
materials on record, the confessional statements of the
appellants and other co-accused, deposition of prosecution
witnesses and the testimony of the Approver (PW-2) that ROX
G was filled in vehicles which were parked in the garages at A/-
Hussaini building. The aforesaid acts were the result of a
conspiracy and were carried out in a covert manner in the night
at the Al Hussaini Building.

H 280 It is further contended by the appellant (A-32) that
YAKUB ABDUL RAZAK MEMON v. STATE OF 337
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

there are material inconsistencies between his confession and A
that of A-39 that A-32 went to Mahim on 12.03.1993 in a blue
Maruti car while A-39 stated that he went in a white Maruti car
to Mahim. In our considered view, these are minor
inconsistencies which do not go to the root of the matter since
both the abovesaid accused have admitted to have gone to B
Mahim on the fateful day in a Maruti car.

281. It is further contended by the counsel for the appellants
that PW-5 is not an independent witness but is an interested
witness since his brother-in-law and sister-in-law sustained
injuries in the blast at Mahim. In the light of the materials placed,
c
we hold that the testimony of PW-5 is convincing and even the
credibility of the witness has not been shaken in the cross-
examination. The testimony of Laxman Patil (PW-5) is further
corroborated by the testimony of Santosh Patil (PW-6). A
perusal of all the above materials clearly shows that the D
prosecution has established all the charges and the
Designated Court rightly convicted them for the same.

Criminal Appeal Nos. 628-629 of 2008
Mohammed Mushtaq Moosa Tarani (A-44) ..... Appellant E
vs.
State of Maharashtra, Through ..... Respondent
STF, CBI Bombay
*********
F
282. Mr. Priyadarshi Manish learned counsel appeared for
the appellant (A-44) and Mr. Gopal Su~ramanium, learned
senior counsel, duly assisted by Mr. Mukul Gupta, learned
senior counsel and Mr. Satyakam, learned counsel for the
respondent G

283. The instant appeals are directed against the final
judgment and order of conviction and sentence dated
27.09.2006 and 18.07.2007 respectively, whereby the
appellant has been convicted and sentenced to Death by the
H
338 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Designated Court under TADA for the Bombay Bomb Blast
Case, Greater Bombay in BBC No. 1/1993.

Charges:

284. A common charge of conspiracy was framed against
B all the co-conspirators including the appellant (A-44). The
relevant portion of the said charge is reproduced hereunder:-

"During the period from December, 1992 to April, 1993
at various places in Bombay, District Raigad and District
c Thane in India and outside India in Dubai (UA.E.) Pakistan,
entered into a criminal conspiracy and/or were members
of the said criminal conspiracy whose object was to
commit terrorist acts in India and that you all agreed to
commit following illegal acts, namely, to commit terrorist
D acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate
Sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and
Muslims by using bombs, dynamites, handgrenades and
other explosives substances like ROX or inflammable
E
substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
or as likely to cause d~ath of or injuries to any person or
persons, loss of, damage to and disruption of supplies of
services essential to the life of the community, and to
F
achieve the objectives of the conspiracy, you all agreed
to smuggle fire--arms, ammunitions, detonators,
handgrenades and high explosives like ROX into India
and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
G acts and for the said purpose to conceal and store all
these arms, ammunitions and explosives at such safe
places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose
H off the same as need arises. To organize training camps
YAKUB ABDUL RAZAK MEMON v. STATE OF 339
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]
in Pakistan and in India to import and undergo weapons A
training in handling of arms, ammunitions and explosives
to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, abet and knowingly
facilitate the terrorist acts and/or any act preparatory to the
commission of terrorist acts and to render any assistance s
financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary for achieving the
aforesaid objectives of the criminal conspiracy and that on
12.03.1993 were successful in causing bomb explosions c
at Stock Exchange Building, Air India Building, Hotel Sea
Rock at Sandra, Hotel Centaur at Juhu, Hotel Centaur at
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, f"laza
Theatre and in lobbing handgrenades at Macchimar Hindu D
Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and
property worth about Rs. 27 crores destroyed, and
attempted to cause bomb explosions at Naigaum Cross
Road and Dhanji Street, all in the city of Bombay and its
suburbs i.e. within Greater Bombay and thereby E
committed offences punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120(B) of Indian Penal
Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of
TADA (P) Act, 1987 and read with Sections 302, 307,
326, 324, 427, 435, 436, 201 and 212 of Indian Penal F
Code and offences under Sections 3 and 7 read with
Sections 25 (1A), (1 B)(a) of the Arms Act, 1959, Sections
9B(1}(a}(b}(c) of the Explosives Act, 1884, Sections 3,
4(a)(b), 5 and 6 of the Explosive Substances Act, 1908
and Section 4 of the Prevention of Damage to Public G
Property Act, 1984 and within my cognizance."

In addition to the above-said principal charge of conspiracy
framed at head firstly, the appellant (A-44) was also charged
on other counts which are as under:
H
340 SUPREME COURT REPORTS [2013] 15 S.C.R.

A At head secondly; The appellant (A-44) committed an
offence punishable under Section 3(3) of TADA by
committing following overt acts:

a) He attended a meeting with co-conspirators at
B Hotel Taj Mahal; and

b) He surveyed Stock Exchange Building and
Bombay Municipal Corporation Building, along with
co-accused for the purpose of committing terrorist
acts by planting bombs.
c
At head thirdly; On 12.03.1993, the appellant (A-44)
planted a suitcase filled with ROX in Room No.3078 of
Hotel Centaur, Juhu Tara Road, Mumbai, which exploded,
causing injuries to three persons and loss of property to
D the tune of Rs.2.1 crore, thereby committing an offence
punishable under Section 3(2)(ii) of TADA

At head fourthly; The appellant (A-44), by causing the
aforesaid explosion in Hotel Centaur, Juhu Tara Road,
Mumbai, which resulted into injuries to three persons,
E committed an offence punishable under Section 307 of
IPC

At head fifthly; The appellant (A-44), by causing the
aforesaid explosion, which resulted into injuries to three
F persons, committed an offence punishable under Section
324 of IPC.

At head sixthly; The appellant (A-44), by causing the
aforesaid explosion, which resulted in damage of property,
by using explosive material, committed an offence
G
punishable under Section 436 of IPC.

At head seventhly; On 12 03.1993, the appellant (A-44)
planted an explosive laden scooter bearing No. MH-05-
TC-16 at Shaikh Memon Street with an intent to cause
H death and destruction of properties by explosion and
YAKUB ABDUL RAZAK MEMON v. STATE OF 341
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
thereby committed an offence punishable under Section A
3(3) of TADA.

At head eighthly; The appellant (A-44), by planting the
aforesaid explosive laden scooter also committed an
offence punishable under Section 307 of IPC
B
At head ninthly; The appellant (A-44), by planting the
aforesaid explosive laden scooter with the knowledge that
it was likely to cause damage to the properties, committed
an offence punishable under Section 435 read with
Section 511 of IPC. c
At head tenthly; The appellant (A-44), by planting the
aforesaid explosive laden scooter committed an offence
punishable under Section 436 of IPC.

At head eleventhly; The appellant (A-44), by planting the D
aforesaid explosive laden suitcase in Hotel Centaur, Juhu
Tara Road, Which caused damage to the properties,
committed an offence punishable under Section 3 of the
Explosive Substances Act, 1908 and;
E
At head twelfthly; The appellant (A-44), by planting the
aforesaid explosive laden suitcase and by possessing the
ROX in the said suitcase unauthorisedly committed an
offence punishable under Section 4(a)(b) of the Explosive
Substances Act, 1908. F

285. The Designated Judge found the appellant guilty on
all the aforesaid charges. The appellant has been convicted
and sentenced for the above said charges as follows:

Conviction and Sentence: G

(i) The appellant (A-44) has been sentenced to death
under Section 3(3) of TADA (P) Act, 1987 and
Section 120-B of IPC read with the offences
mentioned in the said charge. In addition, the H
342 SUPREME COURT REPORTS [2013] 15 S.C.R.

A appellant was also ordered to pay a fine of Rs. 25,
0001-. (charge firstly)

(ii) He has been sentenced to RI for 12 years along
with a fine of Rs. 50,000/-, in default, to further
undergo RI for one year for the commission of
B
offence under Section 3(3) of TADA. (charge
secondly)

(iii) He has been sentenced to RI for life along with a
fine of Rs. 25,000/-, in default, to further undergo RI
c for 6 months for the commission of offence under
Section 3(2)(ii) of TADA. (charge thirdly)

(iv) He has been sentenced to RI for life along with a
fine of Rs. 25,000/-, in default, to further undergo RI
D for 6 months for the commission of offence under
Section 307 of IPC. (charge fourthly)

(v) He has been sentenced to RI for 3 years for the
commission of offence under Section 324 of IPC.
(charge fifthly)
E
(vi) He has been sentenced to RI for 1O years along
with a fine of Rs. 1,00,000/-, in default, to further
undergo RI for 3 years for the commission of
offence under Section 436 of IPC. (charge sixthly)
F
(vii) He has been sentenced to RI for life along with a
fine of Rs. 50,0001-, in default, to further undergo RI
for 1 year for the commission of offence under
Section 3(3) of TADA. (charge seventhly)

G (viii) He has been sentenced to RI for 10 years along
with a fine of Rs. 50,000/-, in default, to further
undergo RI for 1 year for the commission of offence
under Section 307 of IPC. (charge eighthly)

(ix) He has been sentenced to RI for 31/2 (three and a
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 343
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

half) years along with a fine of Rs. 25,000/-, in A
default, to further undergo RI for 6 months for the
commission of offence under Sections 435 read
with 511 of !PC. (charge ninthly)

(x) He has been sentenced to RI for 5 years along with
B
a fine of Rs. 12,500/-, in default, to further undergo
RI for 3 months for the commission of offence under
Section 436 read with Section 511 of IPC. (charge
tenthly)

(xi) He has been sentenced to RI for 7 years along with c
a fine of Rs. 25,000/-, in default, to further undergo
RI for 6 months for commission of offence under
Section 3 of the Explosive Substances Act, 1908.
(charge eleventhly)
D
(xii) He has been sentenced to RI for 7 years along with
a fine of Rs. 25,000/-, in default, to further undergo
RI for 6 months, for the commission of offence under
Section 4(b) of the Explosive Substances Act,
1908. (charge twelfthly)
E
Evidence

286. The evidence against the appellant (A-44) is in the
form of:-
F
(i) his own confession;

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

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

(iv) documentary evidence.

H
344 SUPREME COURT REPORTS [2013] 15 S.C.R.

A CONSPIRACY:
287. As mentioned above, a common charge of
conspiracy has been framed against all the accused persons
and in order to bring home the charge, the prosecution need
not necessarily prove that the perpetrators expressly agreed to
B do or cause to be done the illegal act, the agreement may be
proved by necessary implication. The cumulative effect of the
proved circumstances should be taken into account in
determining the guilt of the accused rather than adopting an
isolated approach to each of the circumstances. Since we have
C elaborately discussed the issue relating to conspiracy in the
earlier part of our judgment, there is no need to refer the same
once again.

Confessional Statement of the appellant - Mohammed
Mushtaq Moosa Tarani (A-44)
D
288. The prosecution pointed out the involvement of the
appellant (A-44) in the conspiratorial acts which is evident from
his own confession recorded under Section 15 of TADA on
26.05.1993 and 28.05.1993 at 18.30 hrs by Shri K.L. Bishnoi
E (PW-193), the then DCP, Zone 111, Bombay. The said
confessional statement is summarized hereinbelow:

(i) Since 1991, the appellant (A-44) had developed
good friendship with Tiger Memon and he knew that
F Tiger Memon was a notorious 'goonda'.

(ii) On 05.03.1993, the appellant (A-44), along with his
friend Md. Farooq Mohammed Yusuf Pawale (A-
16), met Tiger Memon and other co-conspirators at
Taj Mahal Hotel where Tiger Memon told them that
G they have to take revenge for the damage suffered
by Muslims during the riots and called for their help.

(iii) Thereafter, the appellant and others, viz., A-16, PW-
2, Bashir Ahmed Usman Gani Khairulla (A-13),
H Javed Chikna agreed to help Tiger Memon. The
V'AKUB ABDUL RAZAK MEMON v. STATE OF 345
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

appellant, along with Tiger Memon and others, went A
to survey the BMC building and the Stock
Exchange building.

(iv) On 06.03.1993, the appellant along with PW-2 and
A-13 went to survey the BMC building, BJP and B
Shiv Sena office and also showed them the entry
and exit gates of the said buildings.

(v) On the same day, after surveying the targets, the
appellant met A-16 and told him about what
transpired during the day and about the plans of c
Tiger Memon, on which, A-16 told the appellant not
to worry and do whatever has been directed by
Tiger Memon.

(vi) On 11.03.1993, the appellant reached Al-H4ssaini D
building and on the instructions of TigeI Memon
understood his job from Anwar. Thereafter, Anwar
instructed the appellant to carry a suitcase filled with
RDX to Hotel Centaur, Juhu on 12.03.1993 and
plant the same in the reserved room. E
(vii) On 12.03.1993, the appellant went to Anwar's
house and thereafter both of them boarded a
Maroon coloured car driven by Asgar. Yusuf
Mukadam (A-10). Anwar took out pencil detonators
from his pocket and inserted them in the three F
suitcases filled with RDX. Thereafter, the appellant
was dropped by Anwar on the·way and he (A-44)
took a taxi and reached Hotel Centaur.

(viii) On reaching the hotel, the appell<)nt kept the bag G
filled with explosives in Room No. 3078 and came
back to the Al-Hussaini building where he informed
Anwar that he had planted the bag containing bomb
at Hotel Centaur, Juhu in Room No. 3078.
H
346 SUPREME COURT REPORTS [2013) 15 S.C.R.

A (ix) On Anwar's instructions, the appellant drove a
scooter filled with ROX and parked the same at
Zaveri Bazaar.

(x) The appellant, thereafter, met A-16 and informed
B everything to him on which A-16 told him that he
should not worry and nothing would happen as the
appellant has done the job for their community and
'Allah' would help him.

C 289. On perusal of the aforesaid confessional statement
of the appellant (A-44), the following facts emerge:

(i) The appellant was an old associate of Tiger
Memon;

0 (ii) The appellant was fully aware of Tiger Memon's
character and that he was a 'goonda';

(iii) The appellant had participated in the conspiratorial
meeting with Tiger and his co-conspirators;

E (iv) In the said meeting, the appellant agreed to help the
Tiger Memon in the object of the conspiracy; anp

(v) Pursuant to the said agreement, the appellant
performed several acts, namely, reconnaissance of
targets, planting of suitcase laden with ROX and
F
scooter bomb at the targets.

290. The confession-of the appellant (A-44) establishes the
charges framed against him in the trial. The fact that the
appellant (A-44) knowingly committed the overt act of planting
G the bomb at Hotel Centqur, Juhu, is evident from his own
confession. He himself informed Anwar that he had planted the
bag containing bomb at Hotel Centaur, Juhu. The appellant (A·
44) was fully conscious of the gravity and diabolic nature of his
act which is apparent from his confession wherein he stated
1
H tnat after committing the. overt acts he himself informed
YAKUBABDUL RAZAK MEMON v. STATE OF 347
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

everything to A-16 who consoled him by saying that 'Allati' would A
help him as he has done all this for his community.

Retraction Statement:

291. Mr. Manish, learned counsel for the appellant (A-44)
contended that the above-mentioned confession of the appellant B
dated 26.05.1993 and 28.05.1993 should not be relied upon
since it was sought to be retracted by the appellant on
07.06.1994. In reply, learned senior counsel for the CBI
submitted that a voluntary and free confession, even if retracted
subsequently, can be relied upon. It is also relevant to point out C
that the retraction allegedly made by the appellant also fails to
pin-point the reason behind failure to make complaint to the
authorities or police officers or any other authority including the
court regarding his signatures being obtained on blank papers
and/or the papers containing some typed material and the D
reason to effect the said signatures. In this case, the
Designated Court rightly relied upon the original confession and
discarded the subsequent retraction. Since we have elaborately
discussed the admissibility or otherwise of the retraction
statements in the earlier part of our judgment, there is no need E
to refer the same once again.

Confessional Statements of co-accused:

292. Apart from his own confession, the involvement of the
appellant has also been disclosed in the confessional F
statements of the following co-accused. The legality and
acceptability of the confessions of the co-accused has been
considered by us in the earlier part of our discussion. The said
confessions insofar as they refer to the appellant (A-44) are
summarized hereinbelow: G

Confessional Statement of Md. Shoaib Mohammed
Kasam Ghansar (A-9)

Confessional statement of A-9 under Section 15 of TADA
H
348 SUPREME COURT REPORTS [2013] 15 S.C.R.

A has been recorded on 19.04.1993 and 22.04.1993 by Shri P.K.
Jain, the then DCP, Zone X, Bombay. A brief summary of the
statement with reference to the appellant is as follows:-

(i) When A-9 along with Parvez Nazir Ahmed Shaikh
(A-12) and Asgar Yusuf Mukadam (A-10) reached
B
the house of Anwar, a boy of fair color with curly hair,
wearing coat and pant, also came along with him.

(ii) After Anwar inserted the pencil detonators in the
bags, the boy with curly hair was dropped and was
c asked to go to Hotel Centaur, J uhu and to plant the
bag at the designated place and come back.

(iii) At the Al-Hussaini building, first, the boy with curly
hair came back and then Anwar came back
followed by Parvez (A-12).
D
(iv) In the afternoon of 12.03.1993, on the instructions
of Anwar, A-44 drove the scooter filled with black
chemical and parked the same at Zaveri Bazaar.

E Confessional Statement of Asgar Yusuf Mukadam (A-10)
Confessional statement of A-10 under Section 15 of
TADA has been recorded on 20.04.1993 and 23.04.1993 at
18:00 hrs by Shri K.L. Bishnoi (PW-193), the then DCP, Zone
F 111, Bombay. A brief summary of the confessional statement of
A-1 O with reference to the appellant (A-44) is as follows:

(i) When A-10 reached the house of Anwar, he came
down along with a boy and all of them sat in a car.
In the car, Anwar took out pencil detonators from
G his pocket and inserted the same in the bags.
Thereafter, Anwar instructed the boy (whom he
referred to as Mushtaq) to get down with the bag
and plant the same at the designated place.

(ii) When A-10 reached Al-Hussaini after dropping
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 349
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Anwar and others, the appellant (A-44) also A
reached there. Thereafter, as instructed by Anwar,
A-44 drove a scooter filled with ROX and parked
the same at Zaveri Bazaar.

Confessional Statement of Parvez Nazir Ahmed Shaikh B
(A-12)

Confessional statement of A-12 under Section 15 of
TADA has been recorded on 18.04.1993 and 20.04.1994 at
06:50 hrs. by Shri P.K. Jain (PW-189), the then DCP, Zone X,
Bombay. A brief summary of the statement with reference to C
the appellant (A-44) is as follows:

(i) When A-12 along with A-10 and A-9 reached the
house of Anwar, they met a person with curly hair
whose name was Mushtaq. Mustaq and Anwar sat D
in a car, and thereafter, Anwar opened the bags
and inserted pencil detonators which he was
carrying.

(ii) When A-12 reached the Al-Hussaini building after
planting the suitcase at Hotel Sea Rock, the E
appellant (A-44) had also reached there.

Confessional Statement of lmtiyaz Yunus Miyan Ghavate
(A-15)
F
Confessional statement of A-15 under Section 15 of
TADA has been recorded on 07 .05.1993 and 09:05.1993 by
Shri K.L. Bishnoi, (PW-193), the then DCP, Zone Ill, Bombay.
A brief summary of the said statement with reference to the
appellant is as follows:
G
(i) When A-15 reached the residence of Anwar, the
appellant had also come there. He had curly hair
and fair complexion and was wearing a black
coloured coat. ·
H
350 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (ii) A-10 came there in a maroon coloured Maruti Van
and the appellant along with Anwar and others sat
in the van and left the place.

(iii) When the appellant came to the Al-Hussaini
B Building, he was holding his coat in his hand.
Thereafter, Anwar Jnstructed him to plant the
scooter filled with ROX.

293. A perusal of the confessional statements of all the
above accusec, viz., A-9, A-10 A-12 and A-15 clearly establish
C the fact that it corroborates the confessional. statement of the
appellant (A-44). The above-said confessions of the co-
accused further establish the following facts:-

(i) The appellant (A-44) was seen in the company of
o the Anwar (AA);

(ii) The appellant went along with Anwar (AA) and
Asgar Yusuf Mukadam (A-10) in a Maruti Van.

(iii) The appellant witnessed the insertion of pencil
E detonators in the suitcases filled with ROX;

(iv) The appellant planted the suitcase filled with ROX
in Hotel Centaur Juhu;

(v) The appellant returned to the Al-Hussaini building
F and reported the successful planting of the suitcase
bomb to Anwar; and

(vi) On the instructions of Anwar (AA), the appellant
proceeded to park the scooter filled with ROX at
G Zaveri Bazaar.

Deposition of Prosecution Witnesses:

Deposition of Ravindra Sitaram Vichare (PW-17)

H 294. The deposition of PW-17 was recorded on
YAKUB ABDUL RAZAK MEMON v. STATE OF 351
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J ]

20.11.1995. The relevant material in his evidence is as follows:- A

(i) He deposed that at the relevant time, he was
working as a bellboy at Hotel Centaur, Juhu.

(ii) On 12.03.1993, around 11 :45 am, one guest got
down from the motor taxi and was carrying a light B
blue coloured briefcase type bag.

(iii) He took the bag from the hands of the guest and
kept it in the Baggage Section.

(iv) After sometime, the guest came to the Baggage
c
Section and picked up his bag and enquired about
the lift for going to the room.

(v) He showed the way towa.rds the lift to the guest.
D
(vi) At around 3:00/3:30 p.m., when he was in the lobby
of the Hotel, there was a loud sound of explosion.

(vii) He identified the appellant (A-44) before the court
in the dock as the person who came to the Hotel
on 12.03.1993. E

(viii) He also identified the appellant in the idenfification
parade dated 07.06.1993 conducted by Special
Executive Magistrate, Vaman D. Sapre (PW-249)
at Santacruz Police Station. F

Deposition of Milind Purushottam Kamble (PW-18)

The deposition of PW-18 was recorded on 22.11.1995
and he deposed that:
G
(i) At the relevant time, he was working as an
attendant in the House Keeping Department of
Hotel Centaur, Juhu.

H
352 SUPREME COURT REPORTS (2013] 15 S.C.R.

A (ii) On 12.03.1993, the appellant (A-44) enquired from
him about the location of Room No. 3078 in the
Hotel.

(iii) Floor SupeNisor, who was also present with PW-
18, pointed out towards Room No. 3078.
B
(iv) He saw the appellant (A-44) entering into Room
No. 3078 with a light blue color suitcase.

(v) Thereafter, the appellant (A-44) came out of the
c room and left saying that he is going to the
restaurant to meet someone and will return shortly.
At that time, he was not carrying the blue suitcase.

(vi) He identified the appellant (A-44) before the Court
in the dock as the person who kept the suitcase in
D Room No. 3078.

(vii) He also identified the appellant (A-44) in the
identification parade held on 07.06.1993 conducted
by the Special Executive Magistrate, Vaman D.
E Sapre (PW-249).

(viii) He also identified Article No. 9 (coat), Article No.
1O (black pant) and Article No. 11 (white shirt)
being clothes worn by the appellant (A-44) on
12.03.1993 when he visited the Hotel.
F
295. From the perusal of the testimony of PWs-17 and 18,
it is clear that the witnesses. established the identity of the
person, who planted the suitcase in the hotel, as the appellant.
They very well proved how the appellant went to the room where
G the blast took place. The presence of witnesses in the hotel at
the time when the appellant went to the hotel for planting the
suitcase has been fully established. The witnesses have
withstood the lengthy cross-examination and established.
themselves as credible and reliable witnesses.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 353
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J]

Deposition of Nitin Sumitran (PW-260) A

The deposition of PW-260 was recorded on 13.01.1998.
He deposed that:

(i) At the relevant time, he was working as a
receptionist at Hotel Centaur, Juhu. B

(ii) On 08.03.1993, a male person, aged about 30 to
35 years, approached the Front Desk and told that
he was having a reservation in the name of one Mr.
Sanjeev Rai and that he had come to make an C
advance payment of Rs.5,000/- towards reservation
of the room.

Deposition of Sanjay Manohar Dalvi (PW-261)

The deposition of PW-261 was recorded on 13.01.1998. D
He deposed that at the relevant time, he was working as the
Front Office Cashier and he confirmed that a room was booked
at Hotel Centaur, Juhu by one Mr. Sanjeev Rai on 08.03.1993
and he issued a receipt of Rs.5,000/- (Exh. 1093) as advance
payment towards the room rent. E

Deposition of Cedric Merwyn Creado (PW-262)

The deposition of PW-262 was recorded on 13.01.1998.
He deposed that:
F
(i) At the relevant time, he was working as a Front
Office Receptionist and on 11.03.1993, a male
person came to the desk and enquired for a room.

(ii) He asked him as to whether he has any prior G
reservation, on which, he replied that he was having
a reservation in the name of Sanjeev Rai.

(iii) He gave him a registration card which he returned
after filling the same.
H
354 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (iv) On verification of the card, he found that the name
was mentioned as 'Gyanchandani Lalit' and the
address was 501, Bel Air Apartment, Linking Road,
Bandra, Bombay. As the booking was made in the
name of Sanjeev Rai, he asked him as to why he
B has written a different name on which he replied that
since people know him by this name that is why he
had mentioned the said name.

(v) He deleted the name and re-wrote the name as
Sanjeev Rai on the Registration Card. A corrected
C reservation slip (Exh. 1096) was also prepared by
the Hotel staff.

(vi) Thereafter, PW-262 allotted Room No. 3078 to him
and gave him the keys of the room.
D
Deposition of Titus Peter Paul Pinto (PW-102)

The deposition of PW-102 was recorded on 27.09.1996.
PW-102 is a resident of Bel Air Apartment since 1963 and he
E is the Secretary of the said Cooperative Housing Society. He
deposed that there is no flat bearing No. 501 in the said
Apartment. He further deposed that no occupant by the name
of Sanjeev Rai or Gyanchandani Lalit was living at the relevant
time in that building.
F
Deposition of Ravindra Mahadev Kolte (PW-322)

The deposition of PW-322 was recorded on 27 .04.1998.
He deposed that:

G (i) At the relevant time, he was working as an
Assistant Security Officer at Hotel Centaur, Juhu. He
also described about the scene of the blast.

\ti) Three persons were injured in the blast on
12.03.1993 at 15:30 hrs. in Room No. 3078.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 355
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
(iii) The ceiling and flooring of the said room were A
completely destroyed and the occupant of the said
room was not present in the room at the time of
blast.

(iv) He also made a complaintwhich was registered as B
C.R. No. 155/1993.

Deposition of Jaisingh Shivajirao Patil, Police Officer, (PW-
544)

The deposition of PW-544 was recorded on 10.12.1999. c
In his deposition, he deposed that:-

(i) He inspected the scene of the blast in the presence
of panch witness Tiyadath R. Nair (PW-438) and
prepared a spot panchnama Exh. No. 1414.
D
(ii) He also prepared a panchnama dated 15.03.1993
of four sealed sample packets containing debris
collected by the experts from FSL marked as Exh.
No. 1859 in the presence of Sadashiv M.
Pattanshetti (PW-549). E

(iii) He also proved that he recorded FIR being C.R. No.
155/1993 marked as Exh. No. 1208.

(iv) The aforesaid articles which were seized by him
were sent to the forensic lab for examination. F

(v) FSL Reports (Exh. Nos. 2604 and 2605) show the
presence of traces of High Explosive substance,
viz., ROX on these articles.
G
Deposition of Sridhar M. Pandit (PW-355)

At the relevant time, he was working as GM (Technical),
Hotel Corporation of India. He deposed that he inspected the
site of the explosion and the estimated damage at Hotel
Centaur, Juhu came to the tune of Rs. 2.1 crores. H
356 SUPREME COURT REPORTS [2013] 15 S.C.R.

A D-aposition of Ketan Kantilal Shah (PW-433)

He was the guest staying at the Hotel at the relevant time
and has proved the injuries sustained by him on account of the
explosion in the Hotel on 12.03.1993.

B Deposition of Vaman Dhondu Sapre, Special Executive
Magistrate (PW-249)

He is the person who conducted TIP on 07.06.1993 at
Santacruz Police Station in which the appellant (A-44) was
c identified by PWs-17 and 18 and has proved the TIP
panchnama Exh. No. 1071 dated 07.06.1993.

Deposition of Ramesh Pandurang Bhasare (PW-74)

He is a panch witness who was running a cigarette-bidi
D stall at Zaveri Bazaar at the relevant time and he deposed as
under:

(i) The appellant (A-44) made a statement in the office
of Crime Branch on 19.05.1993.
E (ii) There·after, the appellant (A-44) led the 'POiice party
and panchas to a Footwear Shop at Khambekar
Street and took out the keys from a pit like portion
on the roof.

F (iii) The police party was further taken to Room No. 12
of a building opposite to Building No. 160 which
was locked.

(iv) The appellant opened the lock with the keys which
he had taken out from the pit.
G
(v) Thereafter, from a cupboard, the appellant (A-44)
took out a black coat, black pant, white shirt and
two keys marked as Article 258-B(i).

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 357
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

(vi) The police party recovered the aforesaid articles A
vide discovery panchnama marked as Exhibit 389.

The eye witness at the hotel has also identified the above
cloth as the same which was worn by the appellant (A-44) at
the time of planting of suitcase bomb .. B
Evidence in respect of the unexploded scooter parked in
front of DP Jewellers at Zaveri Bazaar:

Deposition of Shashikant Ramkumar Shukla (PW-26).

296. PW-26 is an eye witness to the incident who
c
witnessed the parking of the said scooter by the appellant (A-
44) in front of the shop of D.P. Jewellers, Zaveri Bazaar. He
deposed that:

(i) At the relevant time, he was the owner of a cutlery D
shop at Vithalwadi Naka, Zaveri Bazaar.
~'

(ii) On 12.03.1993, he saw the appellant (A-44)
quarelling with a car driver in front of D.P. Jewellers,
Zaveri Bazaar for parking space. He forcibly E
parked the grey coloured scooter with Registration
No. MH-05-TC 16 and left the place on the pretext
of offering namaz at 'Juma Masjid'.

(iii) On 16.03.1993, he learnt that the scooter parked
in front of the shop of D.P. Jewellers, Zaveri Bazaar F
contained explosives.

(iv) Thereafter, he went to Lokmanya Tilak Marg Police
Station to see the scooter which was taken into
custody by the police. There, he met Pl Subhash G
Jadhav who recorded his statement and showed
him two scooters. He identified the scooter which
was parked in front of the shop of D.P. Jewellers
at Zaveri Bazaar.
H
358 SUPREME COURT REPORTS [2013) 15 S.C.R. ·

A (v) He also identified the appellant (A-44) before the
court in the dock as the person who had parked the
scooter

(vi) He also identified the appellant (A-44) in the
Identification Parade dated 04.06.1993 conducted
B
by Sharad Vichare. Special Executive Magistrate,
(PW-459).

Deposition of Shantaram Sakharam Sigwan (PW-27) (eye-
witness).
c
PW-27 is a salesman working at Shop No. 263, Shaikh
Memon Street, Zaveri Bazaar. He deposed that:

(i) He saw the appellant (A-44) arguing with a car
driver to park his scooter in front of D.P. Jewellers.
D
After forcibly parking his grey scooter No. MH-05-
TC-16, the appellant left on the pretext of offering
namaz at 'Juma Masjid'.

(II) On 12.03.1993, an explosion took place in front of
E the shop of Narayandas Jewellers and there was
panic in the locality and all the shop keepers closed
their shops and everyone left for their home.

(iii) On 16.03.1993, he learnt from a feriwala that the
police have seized a scooter which was parked in
F
front of the shop of D.P. Jewellers.

(iv) He. thereafter, went to the police station and noticed
that a grey scooter bearing Registration No. MH-
05-TC-16 was parked in the compound of the
G police station.

(v) He identified the scooter and Pl Jadhav Tecorded
his statement.

(vi) He also identified the appellant (A-44) before the
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 359
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

court in the dock as the person who had parked the A
scooter.

(vii) PW-27 also identified the appellant (A-44) in the
TIP conducted on 04.06.1993 by Sharad S.
Vichare, Special Executive Magistrate, (PW-459) B
and Memorandum Panchnama Exh. No. 1461 was
prepared for the same.

297. The eye witnesses discussed above clearly
established the following facts:
c
(i) the appellant (A-44) came on a scooter at the
relevant time.

(ii) the appellant (A-44) had a sort of quarrel with a car
driver with regard to parking.
D
(iii) the appellant (A-44) tried to forcibly park the said
scooter, which drew the attention of the witnesses,

(iv) the appellant (A-44) left the place on the pretext of
offering namaz. E
(v) the identity of the appellant (A-44) is fully
established and he has been identified by both the
witnesses in TIP.

Deposition of Subhash Dattaram Jadhav (PW-547) F

At the relevant time, PW-547 was working as Pl with LT
Marg Police Station. He deposed that:

(i) He received a message that an unclaimed scooter
has been found parked in front of DP Jewellers at G
Zaveri Bazaar.

(ii) He visited Zaveri Bazaar along with Panch Witness
Shambhu K. Dwadiga (PW-451).
H
360 SUPREME COURT REPORTS [20.13] 15 S.C.R.

A (iii) He inspected the scooter and noticed that there
were black spots outside the dicky of the scooter
which was locked. He further deposed that the
handle of the scooter was free.

(iv) Since blast had already occurred in Bombay, he got
B
suspicious and, accordingly, sent a message to the
control room for sending Bomb Detection and
Disposal Squad (BODS).

(v) Meanwhile, he cordoned off the area where the
c scooter was parked and sand bags were placed
around the scooter and two panch witnesses,
namely, Shri Shambhu (PW-451) and Shri
Prasanna were also called.

D (vi) Nand Kumar Chaugule (PW-444), an officer of
BODS, reached the spot along with his team and
inspected the vehicle.

(vii) PW-444 found that there was a layer of brownish
oily substance at the top, and thereafter, a layer of
E blackish oily substance and below the blackish
substance, again one brownish layer was present
in the dicky. He also noticed that the said cakes
were also containing some pallets.

F (viii) PW-547 further deposed that PW-444 took away
three metallic tubes and one pipe with holes from
the said three layers. The materials recovered were
sealed in packets, and thereafter, wrapped in a
brown paper.
G (ix) PW-444 prepared a spot panchnama dated
15.03.1993 and instructed the police constable to
take the scooter to LT Marg Police Station.

(x) On 10.06.1993, SI Dastagir Ghavandi (PW-552)
H handed over two keys seized by him during
YAKUB ABDUL RAZAK MEMON v. STATE OF 361
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

investigation of C.R. No. 155/1993. A

(xi) On the same day, he called Vijay Ramji Wala (PW-
454 }, Supervisor and Mr. Ajit Vanjari (PW-651) of
Vasan Automobiles and in the presence of the two
panchas, he gave the said two keys to PW-454 to 8
check whether the same fits in the lock of the
scooter which was parked in front of D.P. Jewellers.
PW-454 was able to apply the keys to the said
scooter.

(xii) He then drew a panchnama which is marked as C
Exh. No. 1868 stating that the keys found matched
with all the three locks of the scooter, i.e., dicky lock,
steering lock and the helmet-box lock.

The deposition of PW-547 has proved that: D
(i) A scooter was reported abandoned in front of D.P.
Jewellers at Zaveri Bazaar.

(ii) The condition in which the scooter was found
aroused suspicion. E
(iii) PW-444 was called from BODS who successfully
diffused the bomb fitted in the front side dicky of the
scooter. (the substance subsequently was found to
be ROX)
F
(iv) The witness, in front of the independent witnesses,
also checked that the keys recovered at the
instance of the appellant fitted in the scooter.

Deposition of Nandkumar Anant Chaugule (PW-444). G
The deposition of PW-444 was recorded on 05/
06.10.1998. At the time of the incident, he was the lncharge,
Senior Inspector of Poflce;-Bsmb__Oe1e.fJion ·and Disposal
Squad of CID Intelligence, B6mbay. He deposed that:
H
362 SUPREME COURT REPORTS [2013) 15 S.C.R.

I
A (i) On 15.03.1993, he received information through his
operator that a scooter has been found lying in
suspicious condition opposite to D.P. Jewellers,
Zaveri Bazaar. He went to Zaveri Bazaar and
inspected the scooter. The dicky of the scooter was
B opened by SI Pandre with the help of hook and
rope.

(ii) The dicky of the said scooter contained a black
substance with timer device inserted in the same.
The remaining part of the dickey contained three or
c more polythene bags of brownish color material.

(iii) Thereafter, the timer was pulled out by SI Pandre
by means of a small fishing hook tied with a rope.
He further deposed that he separated the detonator
D from the timer pencil and made the same ineffective
and handed over the same to the Police Officers
at LT Marg Police Station.

(iv) The other officers from the BODS removed the
black and brown material from the front dickey of
E
the scooter and gave the same to the police officers
of LT Marg police station.

(v) From the physical appearance of the said black
material, he gathered that the same was ROX and
F from the physical appearance of brown material, he
gathered that the same was· nitroglycerin, both
being high explosive substances.

Deposition of Dhananjay Raghunath Daund (PW-532)
G The deposition of PW-532 was recorded on 02.12.1999.
At the relevant time, he was a PSI attached with the Worli Police
Station. He deposed that: ·

(i) He arrested the appellant (A-44) on 18.05.1993
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 363
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
and handed him over to Pl Shri Ghavandi (PW- A
552); 'J.O. in C.R. No. 155/1993.

(ii) In the presence of Ramesh Pandurang Bhasare
(PW-74), two keys of a Bajaj Scooter entangled in
a ring were recovered vide disclosure and seizure
B
Panchnama (Exh. No. 389) at the instance of the
appellant who led the police party to Kwality
Footwear shop, Khambekar Street.

(iii) He handed over the said keys to Pl Ghavande (PW-
552). c
The owner of the scooter was traced through examination
of the following witnesses:

Deposition of Sreeram Jeetram Vasan (PW-81)
D
298. PW-81 was the sub-Dealer of scooters carrying on
business in the name of Mohan Automobiles. He deposed that:

(i) He used to purchase scooters from Vasan
Automobiles and sell the same to customers. E
(ii) He knows a person by the name Sayed Farid
Sayed Abdul Wahab @ Farid Bhai (PW-298) who
is also a sub-dealer for Bajaj Auto Ltd. and is
carrying on business under the name Nisha Sales
and Services. F

(iii) In the month of February and March, 1993, he sold
22 Bajaj Chetak Scooters and 2 Kinetic Honda
Scooters to PW-298 out of the lot of 40 scooters
purchased by him from Vasan Automobiles. G

(iv) On 18.03.1993, when he went to the office of the
Crime Branch, he identified the three scooters,
which were sold by hirfr to Nisha Sales and
Services on 14.02.1993, 04.03.1993 and
H
364 SUPREME COURT REPORTS [2013] 15 S.C.R

A 11.03.1993 and he further produced the notes Exh.
Nos. 424, 424-A and 424-B respectively of the said
scooters to Inspector Homi Irani.

Deposition of Sayeed Abdul Sattar (PW-82)
B PW-82 was working with Munaf Halari (AA). He had
helped him in getting loan through his friend Rahid Shaikh. He
deposed that:

(i) On 10.03.1993, Munaf (AA) contacted him for
c purchase of 213 Bajaj Scooters stating that he
required the same for his foreign delegation.

(ii) On the same day, around 6 p.m., they took delivery
of 2 scooters of blue and stone colour bearing
registration Nos. MH-04-Z-261 and MH-05-TC-29,
D respectively, from Asgar Ali Tahir Ali Masalawala,
Scooter Dealer, (PW 299).

(iii) Next day, i.e, on 11.03.1993, Munaf (AA) took
delivery of the third scooter_ bearing Registration
E No. MH-05-TC 16 and asked PW-82 to arrange for
documents for the registration of the said scooters
and got two Xerox copies of Ration Card from
Abdul Aziz, an RTO agent. Munaf (AA) collected the
documents from him on 12.03.1993.
F
(iv) When he asked Munaf (AA) to repay the loan,
M unaf told him to forget about it since the scooters
have been purchased by Tiger Memon and that
Tiger Memon has used the same for the, bomb
blast.
G
(v) Munaf Halari also cautioned him not to disclose this
to anyone, else Tiger Memon will shoot him and his
family rflembers.

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 365
· MAHARASHTRA, THR CBI, BOMBAY (P SATHASIVAM, J.]

(vi) He identified the scooters in Court through their A
registration numbers.

Deposition of Govind Bechan Baria (PW-452)

At the relevant time, PW-452 was working with Excellent
Petroleum Company situated at J.J. Junction. He deposed that: B

(i) Munaf Halari (AA) had requirement of 3 scooters
and he had approached him on 10.03.1993 for the
same.

.(ii) He suggested to him that he should go to the
c
Scooter Dealer, Asgar Ali Tahir Ali Masalawala
(PW 299).

(iii) PW-299 referred Munaf (AA) to Sayed Farid Abdul
Wahab @ Farid Bhai (PW 298), Scooter Dealer D
who was working under the name of Nisha Sales
and Services.

Deposition of Ajit Vithalrao Vanjari (PW-651)

PW-651, at the relevant time, was working as a Sales E
Manager with M/s Vasan Automobiles. He deposed that he had
sold 25 Bajaj Chetak Scooters to Mohan Automobiles.

Deposition of Sambhali S. Hargude (PW-325)
F
PW-325 was the Sub-inspector on station house duty on
15.03.1993. He deposed that:

(i) He received information about the scooter bearing
Registration No. MH-05-TC-16 parked at Zaveri
Bazaar through Police Havaldar Shri Kumbhar G
posted at the Shaikh Memon Street chowki.

(ii) In the dickey of the said scooter, the iron pieces
mixed with a black coloured substance were found.
H
366 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (iii) The dickey was also containing a timer pencil
inserted at the centre of the said black substance.

(iv) The bomb squad defused the said bomb by
dismantling the timer pencil.

B Deposition of Vijay Ramji Wala (PW-454)

PW-454 was a Service Provider at Mis Vasan
Automobiles, Kalyan. He deposed that on being asked to
inspect the scooter with the help of the keys given to him at the
c LT Marg Police Station, he discovered that the said keys
belonged to the said scooter. He was not sure about the
registration number of the scooter. He, however, said that it was
either MH-05-TC-15 or MH-05-TD-16. He then deposed that it
was MH-05-TC-16.
D It is relevant to point out that the keys which were
recovered at the instance of the appellant (A-44) belonged to
the same scooter which was planted by the appellant at Zaveri
Bazaar and was laden with highly explosive substances.

E 299. From the evidence discussed above, it is established
that:

(i) The appellant (A-44) actively participated in the
conspiracy;
F (ii) He was an old associate of Tiger Memon;

(iii) He agreed with the object of conspiracy in the
meeting held at Hotel Taj Mahal and performed
several overt acts pursuant to the said agreement;
G
(iv) He associated himself with Tiger Memon (AA) and
on his instructions with Anwar (AA).

(v) He was seen taking instructions and being lh
association with Anwar (AA) by several co-
H conspirators.
YAKUB ABDUL RAZAK MEMON v. STATE OF 367
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]
(vi) In his presence, detonators were fitted in the A
suitcases filled with ROX.

(vii) He planted one such suitcase laden with ROX in
Room No. 3078 of Hotel Centaur, Juhu which
exploded injuring 3 persons and causing damage B
to the property to the tune of Rs.2.1 O crores;

(viii) He parked a scooter laden with ROX in front of the
shop of DP Jewellers, Zaveri Bazaar;

(ix) He threw the keys of the room on the roof of a c
Footwear shop where he hid the clothes he was
wearing at the time of commission of offence and
also the keys of the scooter which he had parked
at Zaveri Bazaar to avoid detection by police; and
D
(x) He went to his friend Md. Farooq Mohammed
Yusuf Pawale (A-16) and told him everything who,
in turn, supported him by saying that 'Allah' would
help him as he has done this for his community.

300. It is contended on behalf of the appellant (A-44) that E
no TIP was conducted in reality. It is pointed out by the
prosecution that in the instant case, after the arrest of the
appellant, identification parade was conducted on 04.06.1993
by Sharad S. Vichare, Special Executive Magistrate (PW-459)
wherein PWs-27 and 26 identified the appellant as the person F
who had parked the scooter filled with ROX at Zaveri Bazaar.
It is further submitted that on 07.06.1993, TIP was conducted
by Vaman D. Sapre, Special Executive Magistrate (PW-249)
wherein PWs-17 and 18 identified the appellant as the person
who had visited the Hotel Centaur, Juhu and planted the G
suitcase in Room No. 3078 bf the Hotel. It is further submitted
that the said parade was duly conducted in the presence of
panch witnesses and memorandum panchnamas were also
prepared for the same.

301. It is further contended on behalf of the appellant (A- H
368 SUPREME COURT REPORTS (2013] 15 S.C.R.

A 44) that Nandkumar Anant Chaugule (PW-444), an officer of
BODS, forcibly opened the lock of the dickey so the question
of opening the dickey with the keys recovered by PW-454 from
the roof of the footwear shop does not arise.

B 302. Further, the prosecution submitted that the appellant
(A-44), after his arrest on 18.05.1993, made a disclosure
statement on 19.05.1993 and led the police party to Kwality
Footwear shop at Khambekar street, and thereafter, he took
the keys from its roof and further led the police party to Room
C No. 12 of the building opposite the shop. It is further stated that
the appellant then opened the lock of the room with the same
keys and went inside the room and two keys of Bajaj Scooter
and other articles were recovered from a cupboard. Thereafter,
the said keys were handed over to the 10 who gave the same
to PW-547. In order to complete the link, PW-547 called Vijay
D Ramji Wala (PW-454) who is a Supervisor at M/s Vasan
Automobiles to check whether the keys were of the same
scooter which was parked by the appellant at Zaveri Bazaar.
Thereafter, PW-454 inserted the keys in all the three locks of
the scooter and the same tallied with the locks. Thus it was
E proved that the keys recovered at the instance of the appellant
belonged to the scooter laden with ROX recovered from Zaveri
Bazaar.

303. It is also contended on behalf of the appellant (A-44)
F that the handwriting in which the booking was made in the hotel
was not confirmed during investigation. We are unable to
accept the contention raised since on perusal of the entire
evidence as produced by the prosecution, it is established that
the appellant planted the suitcase laden with ROX in Room No.
G 3078 of Hotel Centaur, Juhu. We are satisfied that sufficient
evidence has been brought on record by the prosecution to
show that the said room was booked by the conspirators in a
fake name for which payment was also deposited in advance.

304. It is further contended by the appellant that PW-2
H (Approver) has not named the appellant in his deposition. The
YAKUB ABDUL RAZAK MEMON v. STATE OF 369
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

prosecution pointed out that this does not have any bearing on A
the prosecution case.

305. We are satisfied that the prosecution has produced
sufficient evidence against the appellant (A-44) to bring home
the charges framed against him.
B
Criminal Appeal Nos. 637-638 of 2008

Asgar Yusuf Mukadam (A-10) and
Shahnawaz Abdul Kadar Qureshi (A-29) ........ Appellant(s)

versus
c
The State of Maharashtra
Thr. CBl-STF, Bombay ........ Respondent(s)

306. Ms. Farhana Shah, learned counsel appeared for the o
appellants (A-10 and A-29} and Mr. Gopal Subramanium,
learned senior counsel, duly assisted by Mr. Mukul Gupta,
learned senior counsel and Mr. Satyakam, learned counsel for
the respondent.

307. The above-said appeals are directed against the final E
judgment and order of conviction and sentence dated
18.09.2006 and 19.07.2007 respectively, whereby the
appellants (A-10 and A-29) have been sentenced to death by
the Designated Court under TADA for the Bombay Bomb Blast
Case, Greater Bombay in B.B.C. No. 1/1993. F

Charges:

308. A common charge of conspiracy was framed against
all the co-conspirators including the appellants (A-10 and A-29). G
The relevant portion of the said charge is reproduced
hereunder:

"During the period from December, 1992 to April, 1993
at various places in Bombay, District Raigad and District
H
370 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Thane in India and outside India in Dubai (UA.E.) Pakistan,
entered into a criminal conspiracy and/or were members
of the said criminal conspiracy whose object was to
commit terrorist acts in India and that you all agreed to
commit following illegal acts, namely, to commit terrorist
B acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate
Sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and
Muslims by using bombs, dynamites, handgrenades and
c other explosives substances like ROX or inflammable
·substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or
persons, loss of, damage to and disruption of supplies of
services essential to the life of the community, and to
D
ar:;hieve the objectives of the conspiracy, you all agreed
to smuggle fire-arms, ammunitions, detonators,
handgrenades and high explosives like ROX into India
and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
E acts and for the said purpose to conceal and store all
these arms, ammunitions and explosives at such safe
places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose
F off the same as need arises. To organize training camps
in Pakistan and in India to import and undergo weapons
training in handling of arms, ammunitions and explosives
to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, abet and knowingly
G facilitate the terrorist acts and/or any act preparatory to the
commission of terrorist acts and to render any assistance
financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit a11y
other illegal acts as were necessary for achieving the
H aforesaid objectives of the criminal conspiracy and that on
YAKUB ABDUL RAZAK MEMON v. STATE OF 371
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
12.03.1993 were successful in causing bomb explosions A
at Stock Exchange Building, Air India Building, Hotel Sea
Rock at Sandra, Hotel Centaur at Juhu, Hotel Centaur at
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza
Theatre and in lobbing handgrenades at Macchimar l:iindu B
Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and
property worth about Rs. 27 crores destroyed, and
attempted to cause bomb explosions at Naigaum Cross
Road and Dhanji Street, all in the city of Bombay and its c
suburbs i.e. within Greater Bombay and thereby
committed offences punishable under. Section 3(3) of
TADA (P) Act, 1987 and Section 120(B) of Indian Penal
Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of
TADA (P) Act, 1987 and read with Sections 302, 307,
0
326, 324, 427, 435, 436, 201 and 212 of Indian Penal
Code and offences under Sections 3 and 7 read with
Sections 25 (1A), (1 B)(a) of the Arms Act, 1959, Sections
98(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3,
4(a)(b), 5 and 6 of the Explosive Substances Act, 1908 E
and Section 4 of the Prevention of Damage to Public
Property Act, 1984 and within my cognizance."

In addition to the aforesaid principal charge of conspiracy
framed at head firstly, the appellants (A-10 and A-29) were also
charged on other common counts which are summarized as F
under:

At head secondly; the appellants (A-1 O and A-29),
abetted and knowingly and intentionally facilitated the
commission of terrorist acts and acts preparatory to G
terrorist acts by participating in the landing and
transportation of arms, ammunition and explosives at
Shekadi on 3rd and 7th February, 1993; by participating
in the conspiratorial meetings at the residence of Nazir
Ahmed Anwar Shaikh (AA) and Baya Moosa
H
372 SUPREME COURT REPORTS [2013) 15 S.C.R.

A Bhiwandiwala (A-96) to chalk out the plans for commission
of terrorist acts and by participating in the preparation of
vehicle bombs at Al-Hussaini Building and collecting
money from the co-accused Mulchand Shah for
disbursement to various accused persons who were
B involved in criminal conspiracy and thereby committed an
offence punishable under Section 3(3) of TADA.

At head thirdly; the appellants (A-10 and A-29), planted
an explosive laden Maruti Van in the compound of Plaza
Cinema on 12.03.1993, which exploded causing death of
c 10 persons, injuring 36 others and further damage to
property worth Rs. 87 lakhs and thereby committed
offences punishable under Section 3(2)(i) of TADA

At head fourthly; the appellants (A-10 and A-29), by
D causing the aforesaid explosion caused death of 10
persons and thereby committed an offence punishable
under Section 302 IPC read with Section 34 IPC.

At head fifthly; the appellants (A-10 and A-29), by
causing the aforesaid explosion, caused hurt to 36
E persons and thereby committed an offence punishable
under Section 307 IPC read with Section 34 IPC.

At head sixthly; the appellants (A-10 and A-29), by
causing the aforesaid explosion, caused grievous hurt to
F 16 persons and thereby committed an offence punishable
under Section 326 IPC read with Section 34 IPC.

At head seventhly; the appellants (A-10 and A-29), by
causing the aforesaid explosion, voluntarily caused hurt to
27 persons and thereby committed an offence punishable
G
under Section 324 IPC read with Section 34 IPC.

At head eighthly; the appellants (A-1 O and A-29), by
causing the aforesaid explosion, caused damage to
properties and thereby having committed an offence
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 373
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
punishable under Section 435 IPC read with Section 34 A
IPC.

At head ninthly; the appellants (A-1 O and A-29), by
causing the aforesaid explosion, caused damage to the
property used as dwelling house and for custody of B
property and thereby having committed an offence
punishable under Section 436 IPC read with Section 34
IPC.

At head tenthly; the appellants (A-1 O and A-29), by
causing the aforesaid explosion committed an offence C
punishable under Section 3 of the Explosive Substances
Act, 1908.

At head eleventhly; the appellants (A-1 O and A-29), by
causing the aforesaid explosion, committed an offence o
punishable under Section 4(b) of the Explosive
Substances Act, f908.

At head twelfthly; the appellants (A-10 and A-29) by
possessing ROX in the said Maruti Van, which was used
for causing the aforesaid explosion, committed an offence E
punishable under Section 9B(1 )(b) of the Explosives Act,
1884.

At head thirteenthly; the appellant (A-10), abetted and
knowingly facilitated explosions at Hotel Sea Rock, Hotel F
Centaur and Airport Centaur and thereby committed an
offence punishable under Section 3(3) of TADA.

At head fourteenthly; the appellant (A-10), travelled in
the van MFC-1972 with the explosive laden suitcases and
thereby committed the offences punishable under Sections G
3 and 4 read with Section 6 of the Explosive Substances
Act, 1908.

309. The Designated Judge found the appellants guilty on
all the aforesaid charges. The appellants have been convicted H
374 SUPREME COURT REPORTS [2013] 15 S.C.R..

A and sentenced for the above said charges as follows:

Conviction and Sentence:

(i) The appellants have been sentenced to death under
Section 3(3) of TADA and Section 120-B of IPC read with the
B offences mentioned in the said charge. In addition, the
appellants were also ordered to pay a fine of Rs. 25,000/- each.
(charge firstly)

(ii) The appellants (A-10 and A-29) were convicted and
c sentenced to RI for 9 years and 10 years respectively along with
a fine of Rs.50,000/- each, in default, to further undergo RI for
1 year for commission of offence under Section 3(3) of TADA.
(charge secondly)

D (iii) The appellants have been sentenced to death, subject
to confirmation of the same by this Court, along with a fine of
Rs.25,000/- each, for the offence punishable under Section
3(2)(i) of TADA. (charge thirdly)

(iv) The appellants have been sentenced to death, subject
E to confirmation of the same by this Court, along with a fine of
Rs 25,000/- each, for the offence punishable under Section 302
of IPC read with Section 34 of IPC. (charge fourthly)

(v) The appellants have been sentenced to RI for life along
F with a fine of Rs. 50,000/- each, in default, to further undergo
RI for 1 year, for the offence punishable under Section 307 of
IPC read with Section 34 of IPC. (charge fifthly)

(vi) The appellants have been sentenced to RI for 10 years
along with a fine of Rs. 50,000/- each, in default, to further
G undergo RI for 1 year, for the offence punishable under Section
326 of IPC read with Section 34 of IPC (charge sixthly)

(vii) The appellants have been sentenced to RI for 3 years
for the offence punishable under Section 324 of IPC read with
H Section 34 IPC. (charge seventhly)
YAKUB ABDUL RAZAK MEMON v. STATE OF 375
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

(viii) The appellants have been sentenced to RI for 7 years A
along with a fine of Rs. 50,000/- each, in default, to further
undergo RI for 1 year, for the offence punishable under Sections
435 and 436 of IP"C read with Section 34 IPC. (charges
eighthly & ninthly)
B
(ix) The appellants have been sentenced to RI for 10 years
along with a fine of Rs. 25,000/- e,ach, in default, to further
undergo RI for 6 months, for the offence
\
punishable under
Section 3 of the Explosive Substances Act, 1908. (charge
tenthly)
c
(x) The appellants have been sentenced _to RI for 7 years
along with a fine of Rs 25,000/- each, in default, to further
undergo RI for 6 months, for the offence punishable under
Section 4(b) of the Explosive Substances Act, 1908. (charge
eleventhly) D

(xi) The appellants have been sentenced to RI for 2 years
for the offence punishable under Section 9B(1 )(b) of the
Explosives Act, 1884. (charge twelfthly)

(xii) The appellant (A-10) has been sentenced to RI for 7 E
years along with a fine of Rs. 25,000/-, in default, to further
undergo RI for 6 months, for the offence punishable under
Section 3(3) of TADA. (charge thirteenthly)

(xiii) The appellant (A-10) has been sentenced to RI for 5 F
years along with a fine of Rs 25,000/-, in default, to further
undergo RI for 6 months, for the offence punishable under
Sections 3 and 4 read with Section 6 of the Explosive
Substances Act, 1908. (charge fourteenthly)

Evidence: G

310. The evidence against the appellants (A-10 and A-29)
is in the form of:-

(i) their own confessions;
H
376 SUPREME COURT REPORTS [2013) 15 S.C.R.

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

(iii) testimonies of prosecution witnesses; and

(iv) documentary evidence.
B
Conspiracy

311. The object behind the conspiracy is the ultimate aim
of it and many means may be adopted to achieve this ultimate
C object. The crime of conspiracy is complete the moment there
is an agreement in terms of Section 120-A of IPC. However,
where the conspiracy has in fact achieved its object and
resulted in overt acts, all the conspirators in terms of the law
explained hereinabove would be liable for all the offences
committed in pursuance of the conspiracy on the basis of the
D principle of agency which is inherent in the agreement which
constitutes the crime of conspiracy. Since we
have elaborately discussed the issue relating to conspiracy in
the earlier part of our judgment, there is no need to refer the
same once again.
E
Confessional Statements:

Confessional Statement of Asgar Yusuf Mukadam (A-10)

312. Confessional statement of A-10 under Section 15 of
F TADA has been recorded on 23.04.1994 (18:00 hrs) by Shri
Krishan Lal Bishnoi (PW-193), the then DCP, Zone Ill, Bombay.
A brief summary of the confessional statement of A-1 O is
reproduced hereunder:

G (i) He was working in the office of Tiger Memon (AA)
and his job was to maintain an account of the
Hawala money and the money received in the
smuggling of gold and silver.

(ii) Due to riots in December, 1992, the office of Tiger
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 377
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Memon (AA) was closed which resumed on 17th A
December after the riots subsided. Again, on 6th
January, 1993, his office was closed as the riots had
resurfaced.

(iii) Anwar (AA) and Shafi (AA) always used to be by
B
the side of Tiger Memon (AA). The smuggled silver
used to be purchased by Raju Laxmichand Jain @
Raju Kodi (A-26).

(iv) The money received by Tiger Memon (AA) in the
above transactions was kept in a 'Hathi account' c
maintained by Tiger with Mulchand Sampatraj Shah
@ Choksi (A-97). Whenever Tiger needed money
he would either withdraw it himself or through A-10

(v) In January, 1993, A-10 had come to know from
D
Anwar that Tiger was go1ng to smuggle arms and
ammunitions, explosive (Kala Sabun) and hand
grenades.

(vi) On 10th/11th February, Yakub Abdul Razak Memon
(A-1) directed A-10 to meet him in the evening. At E
about 6:30-7:00 p.m., A-10 visited the residence of
A-1 at which time 3 tickets and 3 passports of
Parvez Mohammed Parvez Zulfikar Qureshi (A-
100), Md. Farooq Mohammed Yusuf Pawale (A-16)
and Salim Phansopkar were handed over to him F
and he was asked to pick them up from Midland
Hotel and then drop them at the Airport for their
journey to Dubai. Accordingly, A-10 carried ciut the
said instructions and dropped the aforesaid three
persons at the Airport after handing over their G
passports and tickets. The said tickets were for
Dubai.

(vii) Next day, A-10 went to the Tiger's residence on his
instructions. There he saw Anwar Theba (AA), Shafi
H
378 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (AA), and A-12 standing outside the building.
Thereafter, he met Tiger Memon and escorted him
to the Airport where Rafiq Madi and Javed Chikna
(AA) also arrived. Tiger left for Dubai along with
Javed Chikna instructing A-10 to remain in contact
B with A-1 and in case of requirement of money to A-
1 to get the same from A-97. A-10 was also told
by Tiger that Sharif Abdul Gafoor Parkar @
Dadabhai (A-17) was to be paid Rs. 5 lacs against
the landing and that the same should be paid to
him.
c
(viii) After Tiger's departure, A-10 along with co-accused
(A-12) collected Rs. 5 lacs from A-97 and handed
over the said amount to A-17 at his residence in
Juhu.
D
(ix) Next day, A-1 O was instructed over the phone by
A-1 to collect Rs. 1 crore from A-97 for him. A-10,
with the help of the other co-accused, collected the
said amount from A-97 and gave it to A-1.
E (x) On A-1's instructions, on 17th or 18th February, A-
10 along with other co-accused, viz., Mohammed
Rafiq @ Rafiq Madi Musa Biyariwala (A-46) picked
up lrfan Chougule (AA) from Paramount Hotel and
A-29 and his companion from Bandra Reclamation
F and dropped them at the Airport.

(xi) On 9th March, A-1 directed A-10 to transfer Rs. 25
lacs from Tiger's account to Irani's account and also
Rs. 10 lacs to Ohalia's account and the same was
G done by contacting Choksi (A-97) over the phone.

(xii) In the morning of 10th March, A-10 transferred Rs.
21 lacs from Tiger's account to lrani's account by
contacting Choksi (A-97) over the phone on the
instructions of A-1.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 379
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]

(xiii) On 11th March, A-10, following the instructions of A
Tiger, picked up 2 VIP bags, 2 rexine shoulder bags
and one briefcase from the garage at 'Tiger's
residence and carried them to Room No. 17 of the
Haj Committee House near Crawford Market. Co-
accused Parvez (A-12) also accompanied him. The B
key of the room was given by Tiger Memon.

(xiv) On the instructions of Shafi, A-10 took a new
scooter from his residence and left it at the
residence of Tiger.
c
(xv) On 11th March 1993, at about 11 p.m., following
the instructions of Tiger, A-1 O took two briefcases
and went to the residence of Mobina @
Bayamoosa Bhiwandiwala (A-96) in Tiger's Maruti
Van bearing No. MFC-1972, collected Tiger's D
passport and ticket and reached the Airport along
with his relative Md. Shoaib Md. Kasam Ghansar
(A-9). There, A-9 checked-in his luggage and got
the boarding pass issued. The remaining briefcase,
passport and ticket were given to Tiger by A-10 on E
his arrival at the Airport at about 3.45 am. At the
time of departure, Tiger instructed A-1 O to follow the
instructions of Anwar.

(xvi) On returning to Tiger's residence, A-10 met co-
accused Javed Chikna, Shafi, Gani, Parvez, Bashir, F
Usman and several others. He also saw one new
Ambassador Car, one blue coloured Commander
Jeep, 2 Maruti-800 cars (one blue and one white),
3 new Bajaj Scooters and 2 old Bajaj Scooters, all
of which were parked there laden with black G
coloured chemical.

(xvii) While returning from the Al-Hussaini building along
with A-9 and A-12, A-10 handed over the plastic
bags which contained empty boxes of the said H
380 SUPREME COURT REPORTS [2013) 15 S.C.R.

A chemical to the attending staff of the garbage
vehicle at Sandra Reclamation. Then, A-10
...collected 3 VIP bags from Tiger's garage and at
that time A-9 and A-12 were also with him. They
picked up Anwar from his residence in a vehicle.
B One more boy, namely, Mushtaq (A-44) also came
along with Anwar. Anwar placed aluminium like
pencils in the chemical contained in all the 3 bags.
On Anwar's direction, A-10 took the vehicle to
Linking road and dropped Mushtaq (A-44), and
c also dropped Parvez and Anwar on the way with
one VIP bag each and reached the Al-Hussaini
Buildlng, Mahim around 11 :45-12:00 o' clock at
night.

(xviii) At the Al-Hussaini Building, Anwar Theba (AA), A-
D 44 and A-12 joined A-10 within an hour. A-10 saw
that Anwar picked up aluminum rod like pencils
which were lying on the back seat of the vehicle and
inserted them one by one in all the five scooters
which were parked there.
E
(xix) Further, A-10 saw that on the instructions of Anwar
Theba (AA). A-15, A-12, A-44 and a boy known to
Javed Chikna took out the scooters one by one and
left the place.
F (xx) A-10 also saw that Anwar had individually briefed
all of them about parking the. said scooters.

(xxi) A-10 was asked by Anwar whether A-9 could drive
a scooter and when he answered in the affirmative,
G Anwar asked A-10 to direct A-9 to park one scooter
near Zaveri Bazaar. Following the said instructions,
A-9 left with the fifth scooter.

(xxii) A-10 further noticed that at about 1:45 p.m., Usman
arrived with a new red coloured Maruti Van in which
H
.,,.'\,J

YAKUBABDUL RAZAK MEMON v. STATE OF 381
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

two VIP bags were kept by the boys of Javed A
Chikna. A-1 O was given the keys of the said vehicle
by Anwar while those of Maruti Van bearing MFC-
1972 were given by Anwar to Javed Chikna.

(xxiii) A-1 O was directed by Anwar and Javed Chikna to B
park the said Maruti Van near the Plaza Cinema.
On refusal by A-10 as he was scared, he was
directed to take A-29 along with him. A-10 and A-
129 took the red Maruti Van and parked it in the
parking lot of the Plaza Cinema at about 2: 15 p.m.
c
(xxiv) After" sometime, A-1 O heard the sound of a bomb
blast while boarding a taxi hired at Dadar T.T. Both
A-10 and A-29 arrived at Crawford Market where
they both parted ways. After roaming around for 15-
20 minutes in the market, he then took a local train D
from Churchgate and reached home.

Confessional Statement of Shahnawaz Abdul Kadar
Qureshi (A-29)

Confessional statement of A-29 under Section 15 of D
- TADA has been recorded on 18.05.1993 and 21.05.1993 by
Shri Krishan Lal Bishnoi (PW-193), the then DCP, Zone Ill,
Bombay. A brief summary of his confession is reproduced
hereunder:
E
(i) A-29 was a resident of Nargis Dutt Nagar
Zhopadpatti, Sandra Reclamation Road, opposite
the Telephone Exchange Sandra (W), Bombay.

(ii) A-29 was acquainted with Javed Chikna and
F
Usman of Mahim since the last 3-4 years.

(iii) A-29 participated in the landing of smuggled goods
at Shekhadi along with Javed Chikna, Shafi, Riyaz,
Munna, Karimulla, Akbar, Anwar, Parvez, lmtiyaz,
Yeda Yakoob, Dadabhai and others. G
382 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (iv) In the evening of 01.02.1993, Javed Chikna asked
A-29 to accompany him to bring the smuggled
goods of Tiger Bhai. He along with Javed, Usman,
Nasir Dhakla and Shafi left in a.blue coloured
Commander Jeep. On the way, they met Riyaz
B along with 3 boys, namely, Munna, Karimulla and
Akbar who were in a Maruti Van near a Hotel. Shafi
and Munna discussed something and' the Maruti
Van followed their jeep.

(v) A-29 was acquainted with Tiger, who met there
c along with Anwar Theba (AA), A-12 and A-15. Tiger
arranged for their stay in the hotel.

(vi) A-29 attended a meeting in a hotel on the way to
Shekhadi, in which Tiger informed all the persons
D that he was bringing weapons to take revenge
against Hindus.

(vii) A-29 actively participated in the unloading,
reloading and opening of packets containing
smuggled arms and ammunitions and explosives at
E
the Waghani Tower.

(viii) A-29 travelled in a jeep containing arms etc. from
Waghani Tower to Bombay along with Bashir
Ahmed Usman Gani Khairulla (A-13) and Akbar.
F
(ix) A-29, at the instance of Javed, gave his own
passport as well as of his friend Abdul Akhtar to
Usman.

(x) A-29 reached Dubai along with lrfan Chaugule and
G Abdul Akhtar. They met Gui Mohammed @ Gullu.
Noor Mohammed Shaikh (A-77) at the Dubai
Airport and were received by Ayub Memon. Anwar,
Haji Yakoob, Nasir Dhakla, Bashir Muchhad and
Mohd. Rafiq had already reached Dubai and met
H them at the place of their stay. Tiger Mernon also
YAKUB ABDUL RAZAK MEMON v. STATE OF 383
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

met them there. A

(xi) A-29 attended conspiratorial meetings in Dubai
with Tiger Memon and others.

(xii) A-29 went to Pakistan from Dubai alongwith Yakub
Yeda, Bashir Muchhad, Anwar, Nasir Dhakla, Gui B
Mohd., Mohammed Rafiq and lrfan Chougule for
receiving training in arms and ammunitions. No
. immigration formalities were observed at the
Airport while travelling to Pakistan.
c
(xiii) A-29 received training in handling of revolver, AK-
47, AK-56 rifles, hand grenades and making of
bombs with black chemical powder (RDX) and
pencil bomb timer devices. The training was given
by Paki5taf1fArmy Officers for about 10 days. Tiger D
Memo'n also attended the said training.

(xiv) After the training, A-29 returned to Dubai along with
others without completing any immigration
formalities in the same manner.
E
(xv) In Dubai, at the instance of Tiger Memon, he along
with others took an oath by putting their hands on
the holy Quran that they would take revenge for the
atrocities committed on the community and would
indulge in Jehad for Islam and they would not F
disclose anything about the training to any one and
in the event of their arrest they would not disclose
anything about others to the police.

(xvi) A-29 returned to Bombay from Dubai along with
Nasim, Feroz Abdul Akhtar and Mohd. Rafiq.
G

(xvii) On the night of 11.03.1993, A-29 went to the flat of
Tiger Memon and received Rs. 5,000/- from hin;i.
He also noticed that a number of boys wefe
H
384 SUPREME COURT REPORTS (2013] 15 S.C.R.

A already present there.

(xviii) On 12.03.1993, A-29 was present in the Al-
Hussaini building along with Javed Chikna, Bashir
Muchhad, Bashir Mahimwala, Usman, Salim
Dandekar, Zakir, Abdul Akhtar, Anwar, Shafi and
B
3-4 unknown boys. In his presence, Usman came
there with one bag full of handgrenades. Javed
Chikna distributed 3 to 4 hand grenades each to
the boys standing there.

C (xix) Two VIP suitcases were kept by Anwar in a red
Maruti Van. A-29 was told by Anwar that the vehicle
was filled with bombs and directed him to go along
with A-10 and leave the vehicle at Plaza Cinema.
Thereafter, he along with A-1 O took the vehicle and
D reached Plaza Cinema at about 1:45 or 2:00 p.m.
The security guards at Plaza Cinema asked
something to A-1 O and he parked the vehicle in one
corner and came out from there, took a taxi and
came to Bhendi Bazar side.
E
(xx) After the bomb blast, A-29 fled to Rampur and was
later arrested by police from Indore.

313. From the above, it can easily be inferred that both
the accused, viz., A-10 and A-29, apart from implicating
F themselves in various activities along with other accused
persons, corroborate with each other. It is also clear that both
the appellants were present at Tiger's residence and went in a
red coloured Maruti Van which was loaded with explosive
substances and parked it in the compound of the Plaza Cinema
G which later exploded killing 10 persons and injuring 36 others.

Confessional Statements of co-accused:

Confessional Statement of Zakir Hussain Noor Mohd.
Shaikh (A-32)
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 385
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

314. Confessional statement of A-32 under Section 15 of A
TADA has been recorded on 16.05.1993 (11:25 hrs) and
19.05.1993 (17:30 hrs) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. In the above said confessional
statement, the following references have been made to the
appellants (A-1 O and A-29): B

(l) On 11.02.1993, A-10 went to the Sahar Airport with
Zakir Hussain, Saleem Dandekar, Parvez at the
instance of Javed Chikna and handed over to them
their passports and tickets for Dubai.
c
(ii) A-29 went to Pakistan by a PIA flight for the
purpose of training.

(iii) A-29 attended conspiratorial meeting on
10.03.1993 at the residence of Mobina (A-96). o
(iv) A-29 actively participated in the preparation of
vehicle bombs in the Al-Hussaini building
compound in the intervening night between 11 /
12.03.1993 by using ROX which had landed at
Shekhadi. E

Confessional Statement of Mohammed Rafiq @ Rafiq
Madi Musa Biyariwala (A-46)

Confessional statement of A-46 under Section 15 of F
TADA has been recorded on 21.04.1993 (19:00 hrs) and
24.04.1993 (21:25 hrs) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. In the a_b.Qvesaid confessional
statement, the following references have been made to the
appellants:
G
(i) A-10 worked in the office of Tiger Memon.

(ii) On 12th February, 1993, A-10 accompanied Tiger
Memon and other co-accused and went to the
airport wherefrom Tiger and other co-accused left H
386 SUPREME COURT REPORTS (2013] 15 S.C.R.

A for Dubai.

(iii) On 18th February, A-10 along with A-46 picked up
lrfan Chougule and other co-accused persons and
dropped them at the Airport rfter handing over to
B them their passports and tickets to Dubai.

(iv) On 17th February, 1993, A-29 was dropped by the
said accused and Anwar along with other accused
persons for their departure to Dubai.

c Confessional Statement of Shaikh Ali Shaikh Umar (A-57)
Confessional statement of A-57 under Section 15 of
TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri
Krishan Lal Bishnoi (PW-193), the then DCP, Zone Ill, Bombay.
In the abovesaid confessionaL statement, the following
0 references have been made to the appellants:

(i) A-10 worked in the office of Tiger Memon.

(ii) A-10 drove the explosives laden red Maruti Van
E along with A-29 from the Al-Hussaini Building on
12.03.1993.

(iii) A-29 was present when Anwar Theba (AA) kept
two ROX laden suitcases in the dickey of a red
coloured Maruti Van and he (A-29) along with A-
F 57 kept two packets of 'Kala Sabun' in the dickey
of the said Van. He further stated that the said van
was taken by A-10 and A-29 accompanied by A-
57 himself.

G Confessional Statement of Nasir Abdul Kadar Kewal @
Nasir Dhakla (A-64)

Confessional statement of A-64 under Section 15 of
TADA has been recorded on 22.01.1995 and 24.01.1995 by

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 387
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
Shri HC Singh (PW-474), the then Superintendent of Police, A
CBl/SPE/STF, New Delhi. In the abovesaid confessional
statement, the following references have been made to the
appellants:

(i) A-1 O was present at the Al-Hussaini Building B
compound in the intervening night between 111,b/
12th March, 1993 when ROX was being filled in
vehicles.

(ii) A-29 participated in the first as well as second
landing at Shekhadi. C

(iii) A-29 was present in Dubai when A-64 and others
went there and attended conspiratorial meetings in
Dubai.
D
(iv) A-29 went to Pakistan by a PIA flight for training.

(v) A-29 attended conspiratorial meeting on
10.03.1993 at the residence of Mobina.

(vi) A-29 actively participated in preparation of vehicle E
bombs at the Al-Hussaini Building compound in the
intervening night between 11112.03.1993 by using
ROX which had landed at Shekhadi.

Confessional Statement of Parvez Mohammed Parvez
Zulfikar Qureshi (A-100) F

Confessional statement of A-100 under Section 15 of
TADA has been recorded on 15.04.1993 (22:30 hrs.) and
17.04.1993 (17:00 hrs.), by Sanjay Pandey (PW-492), the then
DCP, Zone-VIII, Bombay. In the above said confessional G
statement, the following references have been made to the
appellants:

(i) A-29 participated in the training of fire arms and
ammunitions at Islamabad, Pakistan along with his
associates during February, 1993. H
388 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (ii) A-29 was present at the residence of Tiger Memon
in the intervening night between 11/12.03.1993
along with other co-accused.

Confessional Statement of Mohammed Shoaib
Mohammed Kasam Ghansar (A-9)
8
Confessional statement of A-9 under Section 15 of TADA
has been recorded on 19.04.1993 (13:1 O hrs.) and 22.04.1993
(00:30 hrs.) by Shri Prem Krishna Jain (PW-189), the then
DCP, Zone X, Bombay. In the above said confessional
C statement, the following references have been made to the
appellant (A-10):

(i) A-9 and A-1 O are both from the same village, i.e.
Karda in District Ratnagiri.
D (ii) A-9's elder sister is married to A-1 O's elder brother, .
Anwar.

(iii) A-10 told him that he works for Tiger and does the
business of Hawala and smuggling of gold and
E silver.

(iv) A-9 obtained the boarding pass used by Tiger on
11.03.1993 at the request of A-10.

(v) A-10 was at the Airport to see off Tiger Memon
F before the blasts and he arranged for his boarding
pass.

(vi) A-10 and A-9 came back to the Al-Hussaini
building after dropping Tiger on 11.03.1993. At that
G time, co-accused persons were filling chemicals in
·the vehicles as told to him (A-9) by A-10.

(vii) A-10 was driving the Maruti Van on 12.03.1993 and
he dropped the co-accused sitting in the Van at a
taxi stand to go to Hotel Sea-Rock, Sandra and
H Centaur Hotel near Airport.
YAKUB ABDUL RAZAK MEMON v. STATE OF 389
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

(viii) A-10 gave a scooter to A-9 for parking the same A
at Zaveri Bazaar intersection.

(ix) A-9 met A-10 on 13.03.1993 after the blasts.

Confessional Statement of Parvez Nazir Ahmed Shaikh
B
(A-12)

Confessional statement of A-12 under Section 15 of
TADA has been recorded on 18.04.1993 (14:00 hrs.) and
21.04.1993 (06:50 hrs.) by Prem Krishna Jain (PW-189), the
then DCP, Zone X, Bombay. In the above said confessional C
statement, the following references have been made with
regard to A-1 O:

(i) A-10 was working in the office of Tiger Memon.

(ii) A-12 was also working in Tiger's office along with D
A-10 and other associates to help him in Hawala
transactions as well as in the landing of smuggled
silver.

(iii) On 15th/16th February, 1993, A-10 along with A- E
12 went to the residence of Tiger where they along
with others were paid Rs.10,000/- by Shafi.

(iv) On 11th March, 1993, at noon, A-10 and A-12 were
given two small suitcases, two hand bags and one
big suitcase by Tiger Memon which were taken by F
them to room No.17 of Musafirkhana in which one
bag was containing AK-56 rifles while the other was
containing hand grenades.

(v) On the night of 11th March, A-10 was assisting G
Gani and others in the filling of black soap into the
secret cavities of the vehicles.

(vi) At the time of leaving for home, A-10 along with A-
12 and A-9 were given 5 plastic bags in which the
H
390 SUPREME COURT REPORTS [2013] 15 S.C.R

A chemicals were kept which were thrown by them
into the wastage van of BMC.

(vii) A-10 along with A-12 and A-9 carried three
suitcases in a van to the residence of Anwar. From
there, Anwar and A-44 joined them. Anwar inserted
B
three timer pencils in each of the said suitcases.

(viii) Afterthe blast, on 13.03.1993, A-10 metA-12 and
A-9 and received the keys of the scooter which was
planted by A-12 at Katha Bazaar.
c
Confessional Statement of lmtiaz Yunusmiyan Ghavate
(A-15)

Confessional statement of A-15 under Section 15 of
TADA has been recorded on 07.05.1993 (12:30 hrs.) and
D 09.05.1993 (13:30 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. In the above said confessional
statement, the following references have been made with
regard to A-10:

E (i) While working for Tiger, A-15 delivered money to
various people on the instructions of A-10.

(ii) A-10 was managing the delivery of Hawala money
in India.
F (iii) Tiger with A-10 and other co-accused persons was
also involved in selling smuggled silver.

(iv) A-10 was seated in the Maruti Van No. MFC 1972
in the morning of 12.03.1993 along with A-15.
G
Confessional Statement of Sharif Abdul Gafoor Parkar @
Dadabhai (A-17)

Confessional statement of A-17 under Section 15 of
TADA has been recorded on 18.04.1993 (00: 15 hrs.) and
H 20.04.1993 (02:50 hrs.) by Prem Krishna Jain (PW-189), the
YAKUB ABDUL RAZAK MEMON v. STATE OF 391
, MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

then DCP, Zone X, Bombay. In the above said confessional A
statement, a reference has been made to A-10 that he gave
Rs. 5 lakhs to A-17 for the landing work.

Confessional Statement of Mohd. Mushtaq Musa Tarani
(A-44) B

Confessional statement of A-44 under Section 15 of
TADA has been recorded on 26.05.1993 (16:55 hrs.) and
22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. In the abovesaid confessional
statement, the following references have been made with C
regard to A-10:

(i) On 12.03.1993, A-1 O was driving a maroon
coloured car which was carrying A-44 and other
accused involved in planting bombs. D

(ii) A-44 again met A-10 around noon on 12.03.1993
at Tiger's house.

Confessional Statement of Baya Musa Bhiwandiwala @
Mobina (A-96) E
Confessional statement of A-96 under Section 15 of
TADA has been recorded on 30.04.1993 (18:00 hrs.) and
02.05.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. In the above said confessional
F
statement, the following references have been made to A-10:

(i) A"10 worked for Tiger.

(ii) A-1 O took the tickets for Tiger to Dubai from
Mobina's residence on 11.03.1993. G

Confessional Statement of Mulchand Sampatraj Shah @
Choksi (A-97)

Confessional statement of A-97 has been recorded ·on
14.05.1993 (20:55 "hrs,) and 18.05.1993 (16:15 hrs.). by Vinod H
392 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Balwant Lokhande (PW-183), the then DCP, Airport Zone. In
the abovesaid confessional statement, the following references
have been made to A-10:

(i) A-10 @ Munna opened Tiger Memon's Hathi
account with A-97.
B
(ii) A-10 (Munna) had been routinely operating Tiger
Memon's Hathi Account with A-97.

(iii) All dealings with A-10 were done on the
c instructions of Tiger Memon.

Confessional Statement of Mohd. Farooq Mohd. Yusuf
Pawale (A-16)

Confessional statement of A-16 under Section 15 of
D TADA has been recorded on 20.05.1993 (16:30 hrs.) and
22.05.1993 (16:45 hrs.) by Sanjay Pandey (PW-492), the then
DCP, Zone-VIII, Bombay. In the above said confessional
statement, the following references have been made to A-29:

(i) On 08.02.1993, A-16 along with others (including
E
A-29) went to the spot of landing and assisted Tiger
in landing of smuggled items containing 84 bags
and in their transport to Bombay.

(ii) A-29 attended the training of dismantling and
F handling of fire arms and bombs including chemical
bombs as well as hand grenades in Pakistan and,
thereafter, went to Dubai along with others.

Confessional Statement of Mohd. Iqbal Mohd. Yusuf
G Shaikh (A-23)

Confessional statement of A-23 under Section 15 of
TADA has been recorded on 20.05.1993 (10:00 hrs.) and
22.05.1993 (10:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. In the above said confessional
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 393
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

statement, a reference has been made to A-29 that he was A
present at Tiger's house on the day of the blast.

Confessional Statement of Munna @ Mohammed Ali
Khan @ Manojkumar Bhanwar Lal Gupta (A-24)

Confessional statement of A-24 has been recorded on B
30.04.1993 (16:15 hrs.) and 09.05.1993 (19:00 hrs.) by Sanjay
Pandey (PW-492), the then DCP, Zone Ill, Bombay. In the above
said confessional statement, a reference has been made to A-
29. It was disclosed that A-29 actively participated in the landing
and transportation of smuggled goods from Shekhadi coast to C
Waghani Tower where the packets containing arms and
ammunitions and explosives were opened under the supervision
of Tiger Memon.

Confessional Statement of Abdul Khan @ Yakub Khan
0
Akhtar Khan (A-36)

Confessional statement of A-36 under Section 15 of TADA
has been recorded on 19.05.1993 (17:40 hrs.) and 21.05.1993
(18:20 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then
DCP, Zone Ill, Bombay. In the above said confessional E
statement, the following references have been made to A-29:

(i) A-36 knew A-29 for many years.

(ii) A-29 took A-36 to Dubai for training.
F
(iii) Tiger told A-29 in Dubai that his ticket to Bombay
was ready and that he should leave.

(iv) A-29 loaded ROX in the vehicles on 11.03.1993.

Confessional Statement of Feroz @ Akram Amani Malik G
(A-39)

Confessional statement of A-39 under Section 15 of TADA
has been recorded on 19.04.1993 (22:30 hrs.) and 23.04.1993
(20:50 hrs.) by Mr. P.O. Pawar (PW-185), the then DCP, Zone H
394 SUPREME COURT REPORTS [2013] 15 S.C.R.

A V, Bombay. In the above said confessional statement, A-39
refers to A-29 that he received training in Pakistan.

Confessional Statement of Nasim Ashraf Shaikh Ali
Barmare (A-49)

B Confessional statement of A-49 under Section 15 of
TADA has been recorded on 16.05.1993 (9:30 hrs) and
18.05.1993 by Shri Krishna Lal Bishnoi (PW-193), the then
DCP, Zone 111, Bombay. In the above said confessional
statement, the following references have been made to A-29:
c
(i) A-29 joined Nasim Barmare in Pakistan and
received training in arms and ammunitions.

(ii) In Dubai, they all were given inflammatory speech
by Tiger Memon to take revenge against the
D atrocities upon the Muslims.

(iii) A-29 left Dubai along with other co-accused.

Confessional Statement of Salim Rahim Shaikh (A-52)
E Confessional statement of A-52 under Section 15 of
TADA has been recorded on 15.04.1993 and 18.04.1993 by
Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. In
the above said confessional statement, the following. references
have been made to A-29:
F
(i) A-29 was one of the nine persons who underwent
training in Pakistan. They were given training in use
of hand-grenades, RDX and detonators.

(ii) On 06.03.1993, after comin~ to Bombay, all the
G
persons (including A-29) underwent training in
Pakistan and met at the residence of Tiger Memon
in Sandra to discuss about the bomb blasts.

(iii) Tiger gave Rs. 5,000/- to each person in another
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 395
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J ]
meeting at his flat next day where the persons who A
had gone for training were also present.

(iv) On the night of 11.03.1993, A-52 saw several
persons at Tiger's flat at the Al-Hussaini building
including A-29.
B
Confessional Statement of Gui Mohd. @ Gullu Noor
Mohd. Shaikh (A-77)

Confessional statement of A- 77 under Section 15 of
TADA has been recorded on 17.04.1993 (14:10 hrs.) and c
19.04.1993 (18:00 hrs.) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. In the abovesaid confessional
statement, the following references have been made to A-29:

(i) A-77 met A-29 in a Hotel room in Dubai.
D
(ii) A-29 came to Pakistan with them for training.

Confessional Statement of Mohd. Rafiq Usman Shaikh
(A-94)

Confessional statement of A-94 under Section 15 of E
TADA has been recorded on 14.05.1993 (18:30 hrs.) and
16.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then
DCP, Zone Ill, Bombay. In the above said confessional
statement, the following references have been made to A-29:
F
(i) A-29 was in Dubai with other co-accused.

(ii) Tiger gave tickets to A-29 to fly to Bombay from
·Dubai.

Confessional Statement of Niyaz Mohd. @ Aslam Iqbal G
Ahmed Shaikh A-98

Confessional statement under Section 15 of TADA has
been recorded on 17.05.1993 (14:30 hrs.) and 20.05.1993
(11 :30 hrs.) by Shri Krishan Lal Bishnoi (PW-193), the then H
396 SUPREME COURT REPORTS [2013] 15 S.C.R.

A DCP, Zone Ill, Bombay. In the above said confessional
statement, the following references have been made to A-29:

(i) A-29 joined him for training in Pakistan.

(ii) On 01.03.1993, after others also reached Dubai,
B the co-accused (A-29), who had taken training in
Pakistan at the instance of Tiger, took oath after
placing his hands on holy Quran. He also heard
about the speech given by Tiger regarding the riots
in Bombay.
c
315. A perusal of all the aforesaid confessional statements
substantiate the fact that the appellants, viz., A-1 O and A-29
were fully aware of the conspiracy and willfully participated in
performing the conspiratorial acts. Further, the confessions of
0 co-accused, viz., A-32, A-46, A-57, A-64, A-100, A-9, A-12, A-
15, A-17, A-44, A-96, A-97, A-16, A-23, A-24, A-36, A-39, A-
49, A-52, A-77, A-94 and A-98 corroborate the confessional
statements of the appellants (A-1 O and A-29) in material
particulars.

E 316. It is also clear that the confessions made by the
appellants as well as by co-accused are truthful and voluntary
and were made without any coercion. All safeguards
enum~rated under Section 15 of TADA and the rules framed
thereunder have been duly complied with while recording the
F confessions of the appellants.

Retraction .Statements:

317. Ms. Farhana Shah, learned counsel for the appellants
contended that the confessional statements of the appellants
G and the confessional statements of the co-accused persons
relied upon by the prosecution against them were retracted
si.Jbsequently, and therefore, it is not safe to base conviction
on the said confessional statements under Section 15 of
TADA. In reply to the above contention, learned senior counsel
H for the CBI submitted that where the original confession was
YAKUB ABDUL RAZAK MEMON v. STATE OF 397
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]

truthful and voluntary and has been recorded after strictly A
following the prescribed procedure, the subsequent retraction
and denial of such confession under Section 313 statement by
the accused is nothing but is a result of an afterthought. Since
the very same objection had already been considered in the
earlier part of our judgment, we are not inclined to repeat the B
same once again. The said conclusion is applicable to these
appeals also.

Deposition of Prosecution Witnesses:

Evidence of Mohammed Usman Jan Khan (PW-2) C
(Approver)

318. PW-2, in his deposition, implicates the appellants and
withstood the lengthy cross examination. He deposed as
follows: D
(i) PW-2 identified A-10 and A-29.

(ii) The appellants (A-10 and A-29) worked with him in
the conspiracy which led to the blasts in Bombay
and they were involved in planning, conspiracy, E
training, landing as well as in blasting of bombs.

(iii) A-29 participated in the landing of arms and
ammunitions at Shekhadi.

(iv) On 11.02.1993, when he went to meet Tiger F
Memon at Al-Hussaini building, A-10 took him to
the Tiger's flat at 5th floor.

(v) A-29 participated in the training in Pakistan.

(vi) G
When he (PW-2) returned after surveying the
Chembur Refinery on 11.03.1993, he noticed
several boys with Tiger Memon including the
appellants at that time.

The said witness duly corroborates the confessions of the H
398 SUPREME COURT REPORTS [2013] 15 S.C.R.

A co-accused and the confessions of the appellants themselves.
In the present case, the deposition of PW-2 has also been
corroborated in material particulars. It has been contended by
the counsel for the appellants that there are contradictions in
the statement of PW-2 in respect of the presence of A-10 as
B to whether he was standing downstairs or in the hall of the 5th
floor. On a perusal of the entire evidence of PW-2, it can be
inferred that when PW-2 came to the Al-Hussaini building, Tiger
Memon was in the flat which was on the fifth floor along with
various accused including the appellants. Thereafter, PW-2
c described about a meeting where Tiger explained the
modalities of the blasts and he came down using the stairs
when A-10 was standing downstairs.

319. It is further contended by the counsel for the appellants
that there are certain contradictions regarding the air tickets
D given to A-10 and regarding introducing A-32 to A-10 at Hotel
Midland with respect to Exhibit 25. It is relevant to mention that
Exhibit 25 was not the document which was pressed into
service by the prosecution. PW-2 proposed to make full and
true disclosure of all the facts and on the said promise he was
E granted pardon. Both the statement and the deposition were
made under different statutes under the law and are not
comparable with each other. The approver has withstood the
rigorous cross examination and the prosecution has also
corroborated the deposition of the approver by adequate
F evidence which further affords credibiley to his deposition

Evidence of Sanjay Salunke (PW-3) and Sanjay Mangesh
Salaskar (PW-4)

PWs-3 and 4, who were the Security Guards on duty at
G Plaza Cinema at the relevant time have also witnessed the
incident and have deposed as follows:

(i) On 12.03.1993, at about 2.15 p.m., one_ Red
coloured Maruti Van had been inside Plaza Cinema
H Theatre compound from the main gate and was
YAKUB ABDUL RAZAK MEMON v. STATE OF 399
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

parked in scooter parking area. A

(ii) There was an altercation between PW-4 and the
driver of the said van regarding parking of the van
in the scooter parking area.

(iii) Seeing this, PW-3, alongwith two other security B
guards, approached towards them and explained
the correct parking area for the same. Thereafter,
the persons in the Maruti Van parked it in the car
parking area.
c
(iv) After about 45 minutes to 1 hour, there was a big
explosion in the car parking area. The whole area
was shaken and PW-3 noticed that the said red
coloured Maruti Van parked there was totally
damaged. The other motor vehicles in the said area
D
also caught fire and several persons were injured
and a situation of panic emerged among the
persons who had come to the theater.

(v} Other Security Guards, viz., Mr. Singh and Mr.
Manchekar were also injured and, subsequently, E
Mr. Singh died due to the injuries suffered by him
in the incident.

(vi) PW-3 had taken his colleague Security Guard PW-
4, who suffered a back injury and two three more F
injured persons to Sion Hospital and the said
persons were admitted in the hospital after
examination.

(vii) On the way to Sion Hospital, PW-4 told PW-3 that
the person.s with whom they had altercation and G
who had come in a red coloured Maruti Van were
responsible for the said incident as some thing had
gone wrong in the said red coloured Maruti Van.

H
400 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (viii) PW-3 and PW-4 identified A-10 in the court as the
driver of the said red coloured Maruti van.

(ix) PW-3 and PW-4 identified A-29 as the person who
was sitting by the side of the driver i.e., A-10.

B 320. Ms. Farhana Shah, learned counsel for the appellants
contended that PW-3 was an employee of one Hindustan
Security Force and not of Plaza Cinema as stated by him in
his deposition. Further, it was contended on behalf of the
appellants that the said witness had not specifically described/
C stated about the height of A-10 and thus it is a material
omission. It was also contended that his 'general' description
of the kurta-pyjama worn by the accused at the time of the said
incident and not explaining the details thereof is also a material
omission. Thus, it was argued that in view thereof, the
o identification of A-10 by PW-3 is doubtful.
321. PW-3 was an employee of Hindustan Security Force
which was engaged for providing security guards to Plaza
Cinema and he was 'deputed' and was on 'duty' as a Security
Guard at Plaza Cinema. Further, he has never stated in his
E deposition that he was an 'employee of Plaza Cinema'. A-10
has been correctly identified by PW-3 in the court at the time
of his deposition and also in the test identification parades
dated 21.03.1993 and 25.04.1993, conducted by SEM, PW-
462 and in parade dated 14.05.1993 conducted by SEM PW-
F 469. Thus, the identification has been duly established by the
eye witnesses.

322. Further, the depositions of PWs-3 and 4 sufficiently
prove the incident and involvement of the appellants. The said
G depositions also provide corroboration with the above said
confessional statements of A-10 and A-29 that they parked the
Maruti van laden with explosives in Plaza Cinema compound
which caused the said explosions causing death of 1O persons
and injuries to 36 people.
H
YAKUB ABDUL RAZAKMEMON v. STATE OF 401
MAHARASHTRA, THR. CBI, BOMBAY {P. SATHASIVAM, J.]
Other Witnesses: A

323. Kashiram Kubal (PW-449), Piyara Singh (PW-447),
Mohan Mayekar (PW-455), Dattatreya Pawar (PW-448) and
Ramesh Lad (PW-450) proved the injuries sustained by them
during the explosion. Dr. Rajaram Bhalerao (PW-646), a doctor 8
at Hinduja Hospital who issued certificates regarding treatment
of PW-449 and PW-407 sufficiently corroborates the fact of
injury suffered by the victims. Vinayak A. Mayekar (PW-456),
who was the brother of the deceased Vishram Mayekar, who
died due to head and chest injuries sustained in the explosion C
at Plaza Theatre proved the death of the said victim and also
deposed about the charge being taken by him of the dead body
on 13.03.1993 from KEM Hospital. Ramesh Barasingh (PW-
457), son of the deceased Kisan Barasingh, who died due to
scalp injury sustained in the explosion at Plaza Theatre proved
the death of the said victim and also deposed about the charge D
being taken by him of the dead body on 13.03.1993 from KEM
Hospital. This fact is further corroborated by the deposition of
Dr. Walter Vaz (PW-476), who certified the deaths and its cause
of the above said victims.
E
324. Ramesh Naik (PW-305), the Supervisor of Plaza
Cine House deposed regarding hearing a loud explosion on
12.03.1993, at about 03:14 p.m., and saw that the cars parked
in the parking area caught fire and a red Maruti Van was
completely destroyed, a big crater was formed, compound wall F
was collapsed, watchman and other staff were injured and
further inspected and ascertained the .damage of Rs. 50 lakhs
and loitged a complaint with PW-551 of Mahim Police Station.
Further, he visited Sion and KEM Hospital and found that
watchman Singh and project operators Shinde and Vasta had G
succumbed to their injuries.

325. Ramesh Tulsiram Kolhe (PW-551), an Officer from
Mahim Police Station who recorded the complaint of the above,
i.e., Ramesh Naik (PW-305) proved the said document. He
further deposed that on 13.03.1993, he registered accidental H
402 SUPREME COURT REPORTS [2"013] 15 S.C.R.

A death of Shinde, Vasta, Nissar, Siddiqui and sent a letter to
Coroner for effecting post-mortem etc. under panchnama Exh.
1894 and took charge of brass articles penetrated in the body
of PW-449 brought from Hinduja Hospital by PC Kamble. PW-
551 also deposed about the Accidental Death Reports
B prepared by him in respect of the deceased persons.

326. Nivrutti S. Kokare (PW-557), was the officer who
inspected the scene of offence and prepared the inspection
panchnama in the presence of witnesses vide Panchnama Exh.
1918 regarding the crater being formed in the area of car
C parking, collapse of northern compound wall, burnt vehicles etc.
He also took charge of 4 to 5 broken parts of the said red
Maruti Van and the number plate bearing No. MAM 962
amongst other things.

D 327. It is contended on behalf of the appellants with respect
to the deposition of PW-305 that on 12.03.1993, despite
arrival of so many policemen at the place of explosion, there
was no Panchnama prepared on the said date and it came to
be prepared only the next day. Further, with respect to the
E deposition of Narsingh Sherkhane (PW-556), it i.s contended
that the said API of the Bombay Police prepared the
Panchnama only on 14.03.1993 whereas the offence was
committed on 12.03.1993, and therefore, there has been delay
in recording Panchnama which is a serious lapse in the
F procedure. It is brought to our notice that the Police had
cordoned off and sealed the said area so as to ensure that the
scene of crime was not tampered with. Moreover, after several
explosions in the city, there was a state of panic and law and
order situation which the Police were required to handle as a
G priority.
328. It is further contended by Ms. Farhana Shah on behalf
of the appellants that no efforts were made by the prosecution
or PW-557 to trace the ownership of the said Maruti Van. It is
further contended with respect to PW-557 that, on inspection
H of the scene of offence and after effecting the seizure of articles
YAKUB ABDUL RAZAK MEMON v. STATE OF 403
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J]
therefrom, he did not mention the articles seized and certain A
details while drawing up the panchnama and thus his deposition
cannot be relied upon. A perusal of the deposition of PW-557
reveals that he has duly inspected the scene of crime and
carefully drawn up the panchnama (Exh. 1918) mentioning all
the details. He has mentioned the details of all the articles B
seized by him therein, more particularly, the broken parts of the
said Maruti van and the number plate bearing no. MFC 1972.
Further, it is amply clear from the depositions of PWs-3 and 4
that the said Maruti van came inside the Plaza Cinema, they
having seen the accused in the said van and it has been c
significantly proved that the appellants were inside the van and
that it is the said van which caused the explosion. It has already
been proved that the two Maruti Vans, one of blue and the other
of red colour were purchased by Mohd. Shafi Jariwala (AA)
from Suleman Lakdawala (PW-365) and Kailash Baheti (PW-
0
342). Further, the number of blue Maruti Van is MH-13-0-385
but the number of red coloured Maruti was not known as it was
not registered. The delivery of both these vans was given by
PW-366 which was supplied by PW-365, who in turn delivered
these vans to Shafi Jariwala.
E
329. It is contended on behalf of the appellants that no
evidence has been brought on record to corroborate that the
appellants had any driving licence. To this, prosecution pointed
out that A-1 O has been duly and properly identified as the driver
of the said Maruti van by the eye-witnesses, viz., PWs-3 and F
4. It has also been revealed by him in his own confessional
statement as well as in the confessional statements of other co-
accu sed that he drove the car to Plaza Cinema.
Notwithstanding the absence of driving licence, it has been
established that A-1 O was driving the car. G

330. Chordekar (PW-361) has proved the damage caused
to the MTNL (public property). FSL Reports Exhs. 1952 to 1955
show the traces of R.DX explosives. Rajkumar Nagdawne (PW-
563) vide letter had sent the articles collected from the scene
of offence and other places to FSL for opinion. H
404 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 331. In view of the above said confessional statements of
the appellants (A-10 and A-29), the confessional statements of
the other co-accused persons, deposition of prosecution
witnesses, as also the eye-witnesses, viz., PWs-3 and 4 along
with other witnesses duly examined by the prosecution, the
B charges framed against the appellants have been duly proved.

Criminal Appeal No.365 of 2008

MMohammed Shoeb Mohammed
Kasam Ghansar (A-9) ..... Appellant(s)
c
vs

Th·e State of Maharashtra,
Through STF,CBI Mumbai .... Respondent(s)

D **********

332. Ms. Farhana Shah, learned counsel appeared for the
appellant (A-9) and Mr. Gopal Subramanium, learned senior
counsel, duly assisted by Mr. Mukul Gupta, learned senior
E counsel and Mr. Satyakam, learned counsel for the respondent.

333. The present appeal is directed against the final
judgment and order of conviction and sentence dated
14.09.2006 and 19.07.2007 respectively, whereby the
appellant has been convicted and sentenced to death by the
F Designated Court under TADA for the Bombay Bomb Blasts
Case, Greater Bombay in B.B.C. No. 1/1993.

Charges:

G 334. A common charge of conspiracy was framed against
all the co-conspirators including the appellant (A-9). The relevant
portion of the charge is reproduced hereunder:-

"During the period from December, 1992 to April, 1993
at various places in Bombay, District Raigad and District
H Thane in India and outside India in Dubai (UA.E.) Pakistan,
YAKUB ABDUL RAZAK MEMON v. STATE OF 405
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

entered into a criminal conspiracy and/or were members A
of the said criminal conspiracy whose object was to
commit terrorist acts in India and .that you all agreed to
commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate B
Sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and
Muslims by using bombs, dynamites, handgrenades and
other explosives substances like RDX or inflammable
substances or fire-arms like AK-56 rifles, carbines, pistols c
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or
persons, loss of, damage to and disruption of supplies of
services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed
0
to smuggle fire-arms, ammunitions, detonators,
handgrenades and high explosives like ROX into India
and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
acts and for the said purpose to conceal and store all
these arms, ammunitions and explosives at such safe E
places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose
off the same as need arises. To organize training camps
in Pakistan and in India to import and undergo weapons F
training in handling of arms, ammunitions and explosives
to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, abet and knowingly
facilitate the terrorist acts and/or any act preparatory to the
commission of terrorist acts and to render any assistance G
financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary for achieving the
aforesaid objectives of the criminal conspiracy and that on
12.03.1993 were successful in causing bomb explosions H
406 SUPREME COURT REPORTS [2013] 15 S.C.R.

A at Stock Exchange Building, Air India Building, Hotel Sea
Rock at Bandra, Hotel Centaur at Juhu, Hotel Centaur at
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza
Theatre and in lobbing handgrenades at Macchimar Hindu
B Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and
property worth about Rs. 27 crores destroyed, and
attempted to cause bomb explosions at Naigaum Cross
Road and Dhanji Street, all in the city of Bombay and its
c suburbs i.e. within Greater Bombay and thereby
committed offences punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120(B) of Indian Penal
Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of
TADA (P) Act, 1987 and read with Sections 302, 307.
326, 324, 427, 435, 436, 201 and 212 of Indian Penal
D
Code and offences under Sections 3 and 7 read with
Sections 25 (1A), (1 B)(a) of the Arms Act, 1959, Sections
9B(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3,
4(a)(b), 5 and 6 of the Explosive Substances Act, 1908
and Section 4 of the Prevention of Damage to Public
E Property Act, 1984 and within my cognizance."

In addition to the above said charge of conspiracy, the
appellant (A-9) has also been charged for commission of the
following offences:
F
At head secondly; the appellant (A-9) committed
an offence punishable under Section 3(3) of TADA
by doing the following overt acts:

(i) Participated in landing of arms and explosives at
G Shekhadi Coast, Raigad District along with co-
conspirators on the 3rd and 7th of February, 1993;

(ii) facilitated the escape of Tiger Memon (AA) by
fetching his ticket and passport from the house of
H. Mobina (A-96) and by obtaining his boarding pass
YAKUB ABDUL RAZAK MEMON v. STATE OF 407
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

on the morning of 12.03.1993, at Sahar Airport; A
and

(iii) actively participated in preparation of vehicle
bombs in the night intervening 11th/12th March,
1993 at Al-Hussaini Building.
8
At head thirdly; on 12.03.1993, the appellant (A-
9), parked a scooter laden with explosives and
fitted with a time device detonator in Zaveri Bazaar,
which exploded killing 17 persons, injuring 57
persons and causing loss of property to the tune of C
Rs.1.20 crores and thereby committed an offence
under Section 3(2)(i)(ii) of TADA.

At head fourthly; for the aforesaid act mentioned
in charge thirdly, the appellant (A-9) committed an D
offence punishable under Section 302 IPC.

At head fifthly; for the aforesaid act mentioned in
charge thirdly, the appellant (A-9), committed an
offence punishable under Section 307 IPC by
injuring 57 persons. E

At head sixthly; the appellant (A-9), by causing the
aforesaid explosion which resulted in grievous hurt
to 9 persons committed an offence punishable
under Section 326 IPC. F

At head seventhly; the appellant (A-9), by causing
the aforesaid explosion and voluntarily causing hurt
to 48 persons committed an offence punishable
under Section 324 IPC.
G
At head eighthly; the appellant (A-9), by causing
the aforesaid explosion, which resulted into damage
to the properties worth Rs. 1.2 crores committed an
offence punishable under Section 435 IPC.
H
408 SUPREME COURT REPORTS [2013] 15 S.C.R.

A At head ninthly; the appellant (A-9), by causing
the aforesaid explosion, which resulted into damage
to the properties worth Rs. 1.2 crores committed an
offence punishable under Section 436 IPC.

At head tenthly; the appellant (A-9), by causing
B
the aforesaid explosion at Zaveri Bazaar which
resulted into death, injuries and destruction of
properties, also committed an offence punishable
under Section 3 of the Explosive Substances Act,
1908.
c
At head eleventhly; the appellant (A-9), by
causing the aforesaid explosion at Zaveri Bazaar
which resulted into death, injuries and destruction
of properties, also committed an offence
D punishable under Section 4(b) of the Explosive
Substances Act, 1908.

At head twelfthly; the appellant (A-9), in pursuance
of the conspiracy and in contravention of rules
made under Section 5 of the Explosives Act, 1884
E
without licence having possessed and used ROX,
committed an offence punishable under Section 9-
B (1)(b) of the said Act.

At head thirteenthly; the appellant (A-9), in
F pursuance of the said conspiracy, on 12.03.1993,
in the afternoon, having abetted and knowingly
facilitated terrorist act i.e. the explosion at Centaur
Hotel Juhu, Centaur Hotel at Airport and Hotel Sea
Rock at Bandra committed by the co-conspirator
G i.e. Mohammed Mushtaq Moosa Tarani (A-44),
Parvez Nazir Ahmed Shaikh (A-12) and Anwar
Theba (AA) by planting explosive laden suitcases
in the rooms of the said hotels respectively and
yourself by accompanying them and A-10 in a Maruti
H Van bearing No. MFC-1972 on their way for
YAKUBABDUL RAZAK MEMON v. STATE OF 409
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
planting the said suitcases in the said hotels with A
intent to commit the terrorist act, committed an
offence punishable under Section 3(3) of TADA.

At head fourteenthly; the appellant (A-9), for the
aforesaid act mentioned in charge thirteenthly, B
committed an offence punishable under Sections 3
and 4 read with Section 6 of the Explosive
Substances Act, 1908.

335. The Designated Judge found the appellant (A-9) guilty ~

on all the aforesaid charges except the charge of participating '-'
in landing. The appellant (A-9) has been convicted and
sentenced for the above said charges as follows:

Conviction and Sentence:

(i) The appellant was found guilty for the offence of D
conspiracy for commission of such acts as found
proved from charge firstly framed at trial and
punishable under Section 3(3) of TADA and
Section 120-B of I PC read with the offences
mentioned in the said charge and on the said count E
the appellant has been sentenced to suffer RI for
life along with a fine of Rs.25,000/-.(charge firstly)

(ii) The appellant has been sentenced to RI for 5 years
along with a fine of Rs. 25,000/- for the offence F
punishable under Section 3(3) of TADA. (charge
secondly)

(iii) The appellant has been sentenced to death along
with a fine of Rs.25,000/- for the offence punishable G
under Section 3(2)(i) of TADA. (charge thirdly)

(iv) The appellant has been sentenced to death along
with a fine of Rs 25,000/- for the offence punishable
under Section 302 IPC. (charge fourthly)
H
410 SUPREME COURT REPORTS [2013) 15 S.C.R.

A (v) The appellant has been sentenced to RI for life
along with a fine of Rs. 50,000/- for the offence
punishable under Section 307 IPC. (charge fifthly)

(vi) The appeUant has been sentenced to RI for 10
8 years along with a fine of Rs. 50,000/- for the
offence punishable under Section 326 I PC.
(charge sixthly)

(vii) The appellant has been sentenced to RI for 3 years
for the offence punishable under Section 324 IPC.
c (charge seventhly)

(viii) The appellant has been sentenced to RI for 7 years
along with a fine of Rs. 50,000/- for the offence
punishable under Section 435 IPC. (charge
D eighthly)

(ix) The appellant has been sentenced to RI for 7 years
along with a fine of Rs. 50,000/- for the offence
punishable under Section 436 IPC. (charge
ninthly)
E
(x) The appellant has been sentenced to RI for 10
years along with a fine of Rs. 25,000/- for the
offence punishable under Section 3 of the
Explosive Substances Act, 1908. (charge tenthly)
F
(xi) The appellant has been sentenced to RI for 7 years
along with a fine of Rs 25,000/- for the offence
punishable under Section 4(b) of the Explosive
Substances Act, 1908. (charge eleventhly)
G (xii) The appellant has been sentenced to RI for 2 years
for the offence punishable under Section 98(1)(b)
of the Explosives Act, 1884. (charge twelfthly)

(xiii) The appellant has been sentenced to RI for 7 years
H along with a fine of Rs. 25,000/- for the offence
YAKUB ABDUL RAzAK MEMON v. STATE OF 411
MAHARASHTRA, THR. CBI, BOMBAY [P. SA"fHASIVAM, J.]
punishable under Section 3(3) of TADA. (charge A
thirteenthly)

(xiv) The appellant has been sentenced to RI for 5 years
along with a fine of Rs. 25,000/c for the offence
punishable under Sections 3 and 4 read with B
Section 6 of the Explosive Substances Act, 1908.
(charge fourteenthly)

Evidence:

336. The evidence against the appellant is in the form of:- C

(i) _ his own confession;

(ii) confessions made by other co-conspirators; (co-
accused);
D
(iii) testimonies of prosecution witnesses; and

(iv) documentary evidence on record.

Conspiracy
E
337. As mentioned above, a common charge of
conspiracy has been framed against all the accused persons
and in order to bring home the charge, the prosecution need
not necessarily prove that the perpetrators expressly agreed to
do or cause-to be done the illegal act, the agreement may be F
proved by n~cessary implication. Since we have elaborately
discussed the issue relating to conspiracy in the earlier part of .
our judgment, there is no need to refer to the same once again.

Confessional Statement of the appellant - Mohammed
Shoeb Mohammed Kasam Ghansar (A-9) G

338. Confessional statement of the appellant (A-9) under
Section 15 of TADA has been recorded on 19.04.1993 and
22.04.1993, by Shri P.K. Jain, the then DCP, Zone X, Bombay.
H
412 SUPREME COURT REPORTS [2013] 15 S.C.R.

A The following facts emerge from the said confessional
statement:

(i) In the night of 11.03.1993, on being asked by
Asgar Yusuf Mukadam (A-10), the appellant went
to Sahar Airport along with him and got a boarding
B
card issued for Tiger Memon.

(ii) The appellant (A-9) asked A-10 that '\.vhat to do if
anyone catches me", at this, A-10 answered to tell
that "it (boarding card) belongs to my brother".
c
(iii) Tiger Memon left India in the morning of
12.03.1993, at 4 a.m., and the appellant (A-9) and
A-10 saw him leaving the Airport for Dubai.

(iv) The appellant (A-9) was present at the Al-Hussaini
D
building on the night of 11.03.1993 after dropping
Tiger Memon at the Airport, and was also present
when ROX was being filled into the vehicles by other
co-accused persons including Abdul Gani Ismail
Turk (A-11), Parvez Nazir Ahmed Shaikh (A-12),
E Mohd. Shafi (AA) and Anwar Theba (AA).

(v) The appellant (A-9), along with A-10 and A-12,
disposed of six big plastic bags in a wastage van
of BMC at Sandra Reclamation Road. These bags
F were handed over to them by Anwar Theba (AA)
at the Al-Hussaini Building.

(vi) On 12.03.1993, the appellant (A-9), accompanied
A-1 O and went to the residence of A-12 in order to
pick him up and, thereafter, they went to the Al-
G Hussaini Building in a Maruti Van.

(vii) 3 VIP Bags were collected by A-12 and A-10 from
the garage at the Al-Hussaini building and then they
along with the appellant (A-9) went to the residence
H of Anwar Theba (AA) to pick him up.
YAKUB ABDUL RAZAK MEMON v. STATE OF 413
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J]

(viii) On 12.03.1993, the appellant (A-9) was present in A
the Van at the time of insertion of timer pencil
detonators in the black chemical (ROX) kept in the
3 VIP suit cases by Anwar Theba (AA).

(ix) On 12.03.1993, the appellant (A-9) was also B
present with A-10 in the van used for dropping the
co-accused, namely, A-12, A-44 and Anwar Theba
(AA) who went for planting bombs in Hotel Sea
Rock, Hotel Centaur Juhu and Hotel Centaur Airport
respectively.
c
(x) The appellant (A-9), thereafter, returned to the Al-
Hussaini building with A-10. A-12, A-44 and Anwar
Theba (AA) also returned to the said building after
planting the bombs at the targets which exploded
later. He noticed that three new scooters were 0
parked at Al-Hussaini compound. He was present
when Mustaq (A-44) left with one of the new
scooters.

(xi) On the very same day, i.e., 12.03.1993, on the
E
instruction of A-10, the appellant (A-9) planted a
scooter laden with ROX in front of a jewellery shop
at Zaveri Bazaar as per the instructions of A-10.
Anwar Theba (AA) had inserted timer pencil
detonators in the black chemical (ROX) filled in
F
dicky of the scooter. The appellant (A-9) had the
knowledge that the scooter was carrying bomb as
told to him by A-10.

(xii) After planting the scooter laden with ROX, the
appellant (A-9) went to a Masjid and begged for G
forgiveness for his sins. He also threw the keys of
the scooter in a drain near Bus Stop No. 4 at Mohd.
Ali Road.

339. From a perusal of the entire confession, it is
H
414 SUPREME COURT REPORTS [2013] 15 S.C.R.

A established that the appellant was fully aware and conscious
of the overt acts committed by him. The above stated facts are
established from the admission of his guilt that after planting
the bomb at Zaveri Bazaar, he begged for forgiveness for his
sins from 'Allah' (the Almighty God) and that even at the time
B of getting the boarding pass of Tiger Memon, he was conscious
and cautious that he was facilitating, aiding and abetting a
terrorist in fleeing from the country, and accordingly, the
appellant enquired from A-1 O at the Airport as to 'what will
happen if anyone catches him'. The guilt of the appellant (A-9)
c is proved from his confession and it is established that he knew
that his actions were wrong and illegal. The appellant
consciously joined the conspiracy and committed overt acts in
furtherance of the conspiracy. He was well aware of the
consequences of his actions and the actions of other co-
D conspirators.

Confessional Statements of co-accused:

340. Apart from his own confession, the involvement of the
appellant (A-9) has also been disclosed in the confessional
E statements of the following co-accused. The legality and
acceptability of the confessions of the co-accused has been
considered by us in the earlier part of our discussion. The said
confessions insofar as they refer to the appellant are
summarized hereinbelow:

F Confessional Statement of Asgar Yusuf Mukadam (A-10)

Confessional statement of A-10 under Section 15 of
TADA has been recorded on 20.04.1993 and 23.04.1993
(18:00 hrs.), by Shri K.L. Bishnoi, the then DCP, Zone 111,
G Bombay. The following facts emerge from the abovesaid
confession with regard to the appellant (A-9):

(i) In the night of 11.03.1993, the appellant booked the
luggage of Tiger Memon and obtained his boarding
card at the Airport for his departure to Dubai.
H
YAKUBABDUL RAZAK MEMON v. STATE OF 415
MAHARASlil'fRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
(ii) The appellant (A-9), accompanied by A-10 and A- A
12, dispos1:1d of the plastic bags in a wastage van
of BMC which contained the empty boxes of
explosives.

(iii) The appellant (A-9), accompanied by A-10 and A-
B
12, picked up three VIP bags loaded with
·explosives from the garage at the Al-Hussaini
building and took them to the residence of Anwar
Theba (AA) where Anwar fitted the detonators in
these suitcases and thereafter, the bags were taken
away by A-12, A-44 and Anwar Theba (AA) to Hotel C
Sea Rock, Hotel Centaur Juhu and Hotel Centaur
Airport respectively.

(iv) The appe11ant (A-9), on being asked by A-10, drove
the scooter laden with explosives on the instructions D
of Anwar Theba {AA) and parked it at a crowded
place in Zaveri Bazaar which later exploded killing
17 persons and injuring 57 others.

Confessional Statement of Abdul Gani Ismail Turk (A-11)
E
Confessional statement of A-11 under Section 15 of
TADA has been recorded on 15.04.1993 and 18.04.1993 by
Shri P.K. Jain, the then DCP, Zone Ill, Bombay. A-11, in his
confession, has stated that the appellant (A-9) was present at
Al-Hussaini Building in the night of 11.03.1993 along with other F
co-accused, namely, Bashir Ahmed Usman Gani Khairulla (A-
13), Parvez Nazir Ahmed Shaikh (A-12), Md. Shafi, Anwar
Theba (AA), Javed Chikna (AA) and he· filled the chemical
(black soap) in the vehicles which were to be planted as bombs.
He further stated as follows: G
" ..... After sometime Shafi, Anwar, Javed Chikna, Bashir,
Parvez, Shoeb and 10/12 boys assembled there. All
people came in the garage of Al-Hussaini Building and all

H
416 SUPREME COURT REPORTS (2013) 15 S.C.R.

A of them filled chemical @ black soap in a number of
vehicles .... "

Confessional Statement of Parvez Nazir Ahmed Shaikh
(A-12)
B Confessional statement of A-12 under Section 15 of
TADA has been recorded on 18.04.1993 and 21.04.1993
(06.50 hrs):by Shri P.K. Jain, the then DCP. Zone Ill, Bombay.
The following facts emerge from the abovesaid confession with
regard to the appellant (A-9):
c
(i) The appellant (A-9) was present at the Al-Hussaini
building on the night of 11.03.1993 along with other
co-conspirators when the work of filling_ the black
chemical (ROX) into the vehicles to be planted as
D bombs in Bombay was being done. The said black
chemical was brought from Shekhadi which was
landed on 03.02.1993.

(ii) The chemical was packed iil cardboard boxes and
pieces of iron were also added to it
E
(iii) In the morning of 12.03.1993, on the instructions of
Anwar Theba (AA). the appellant (A-9), alon9 with
A-10 and A-12, threw 5-6 plastic bags in a wastage
van of BMC at Sandra which contained the empty
F cardboard boxes of the explosives.

(iv) A-12 further stated as follows:

"And then at about 10.30 o' clock, Asgar came back to
my house with Shoaib in the same red coloured van and
G we three came at Al-Hussaini. From there, we reached to
the house of Anwar taking the three Suit cases (big
briefcase) which were kept in the garage, by Maruti van,
where we met Anwar and Mushtaq whose hair were curly.
They both came and sat in the car, before starting the car
H Anwar opened the j)ag and pierced the article just like
YAKUB ABDUL RAZAK MEMON v. STATE OF 417
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

pencil into the chemical and closed the bags." A

(v) The appellant (A-9), along with A-10, came to the
house of A-12 on 13.03.1993 and discussed about
the blasts that had occurred on 12.03.1993.

Confessional Statement of lmtiyaz Yunusmiyan Ghavate B
(A-15)

Confessional statement of A-15 under Section 15 of
TADA has been recorded on 07.05.1993 and 09.05.1993
(13.30 hrs.), by Shri K.L. Bishnoi (PW-193), the then DCP, Zone C
Ill, Bombay. The following facts emerge from the confessional
statement of A-15:

(i) The appellant (A-9) was seated in the maroon
coloured Maruti Van along with A-10 and A-12 on D
12.03.1993 and all of them drove to the house of
Anwar Theba (AA) to collect the three suitcases.

(ii) On 12.03.1993, A-9, along with A-10, came to the
Al-Hussaini Building in a Maruti Van.
E
(iii) In the presence of the appellant (A-9), Anwar Theba
(AA) inserted timer pencil detonators in the dicky
of scooters laden with explosives which were later
planted as bombs.

(iv) The appellant drove a scooter laden with explosives F
and fitted with pencil detonators on 12.03.1993.

Confessional Statement of Mohd. Mushtaq Moosa Tarani
(A-44)
G
Confessional statement of A-44 under Section 15 of
TADA has been recorded on 26.05.1993 and 22.05.1993
(10.00 hrs.), by Shri K.L. Bishnoi (PW-193), the then DCP, Zone
Ill, Bombay. In his confessional statement, he stated that on
12.03.1993, A-9 and A-15 came to the residence of Anwar
Theba (AA) in a Maroon coloured car driven by A-10. H
418 SUPREME COURT REPORTS [2013) 15 S.C.R.

A 341. The aforesaid confessional statements of co-accused
persons, viz., A-10, A-11, A-12, A-15 and A-44 duly
corroborate the confessional statement of A-9 in all material
aspects. From the above, it is established that:

(i) The appellant (A-9) was actively involved in the
B
conspiracy;

(ii) The appellant was present at the Al-Hussaini
building in the night of 11.03.1993 and filled ROX
in vehicles;
c
(iii) The appellant went to various places with A-10 and
A-12 and also picked up three suitcases filled with
ROX from the garage of the Al-Hussaini building in
which detonators were inserted by Anwar Theba
0 (AA) in order to plant the same at various places
in the city.

(iv) The appellant was traveling in the car in which A-
10, A-12, A-44 and Anwar Theba (AA) were also
present.
E
(v) The appellant participated in various conspiratorial
acts like aiding, abetting and in fleeing of Tiger
Memon out of the country.

(vi) The appellant was fully aware that the
F
aforementioned accused persons were carrying
suitcase bombs for planting the same at Hotel Sea
Rock, Hotel Centaur, Juhu and at Hotel Centaur,
Airport.
G (vii) The appellant parked the scooter at the junction of
Sheikh Memon Street and Mirza Street at Zaveri
Bazaar which exploded at about 03:05 p.m. killing
17 persons and injuring 57 others;

H (viii) After parking the scooter, the appellant (A-9) threw
YAKUBABDUL RAZAK MEMON v. STATE OF 419
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
the keys of the scooter into a gutter to avoid A
detection and went to a mosque to beg forgiveness
for his sins.

342. It is also clear that the confessions made by co-
accused persons are truthful and voluntary and were made B
without any coercion. All safeguards enumerated under Section
1.5 of TADA and the rules framed thereunder have been duly
complied with while recording the confessions of the appellants.

Retraction Statements:
c
343. Ms. Farhana Shah, learned counsel for the appellant
(A-9) contended that the confessional statement of the
appellant as well as of co-accused persons relied upon by the
prosecution against the appellant (A-9) were retracted
subsequently, and therefore, it is not safe to base the conviction D
on the said confessional statements under Section 15 of
TADA. Since the very same objection raised in the connected
appeals was considered and rejected, we are not once again
repeating the same. The said conclusion is applicable to this
appeal also.
E
Depositions of Prosecution Witnesses:

344. The prosecution has relied upon the evidence of
several prosecution witnesses to establish the involvement of
the appellant (A-9) in the conspiracy. The relevant facts emerge F
from the deposition of witnesses incriminating the appellant
have been enumerated below:

Eye-witnesses:

Deposition of Badrinath Bishansingh Sharma (PW-29) G

· (i) PW-29 is a hawker at Zaveri Bazaar. He is an eye-
witness to the bla.st. He testified that on
12.03.1993, he saw a person trying to park a
scooter in front of the shop of Narayandas Jewellers H
420 SUPREME COURT REPORTS [2013] 15 S.C.R.

A at Zaveri Bazaar which fell down. PW-29 offered to
help him in lifting the scooter but the appellant (A-
9) refused to take any help.

(ii) He remembered the colour of the scooter as grey
and noted its number on a cigarette pack. The said
B
packet was handed over to the police on
18.03.1993 which was seized by seizure
Panchnama Exh. No. 1878 proved by Nisar Ahmed
Kankarbhai Shaikh (PW-550). PW-29 also
identified the said cigarette packet.
c
(iii) He also described about the site of the blast and
stated that several persons were killed and injured
in the blast including himself who got injured in his
right leg.
D
(v) PW-29 identified the appellant (A-9) in the
identification parade held at Sacred Hearts School,
Worli on 25.03.1993 as the person who parked the
said scooter on 12.03.1993 at Zaveri Bazaar.
E (vi) PW-29 again identified the appellant (A-9) on
13.05.1993 in the identification parade held at the
office of CID in Crawford Market.

A perusal of the deposition establishes the fact that the
F appellant (A-9) parked the scooter laden with explosives at
Zaveri Bazaar. Ms. Farhana Shah, learned counsel for the
appellant (A-9) contended that PW-29 is an unreliable witness
and his deposition should be discarded since he did not
disclose the number of the scooter or inform anyone until he
G had seen the appellant even after five days of the blasts on
12.03.1993. It is relevant to point out that PW-29 was also
injured in the said blast and thereafter, he went to his house.
The police had cordoned off the area. On the sixth day after
the blasts, PW-29 came to the market and informed the police
H that he could identify the person who had parked the scooter
YAKUB ABDUL RAZAK MEMON v. STATE OF 421
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

at Zaveri Bazaar. PW-29 actually identified the appellant in the A
Test Identification Parade conducted on 25.03.1993 and
13.05.1993 as the person who parked the scooter at Zaveri
Bazaar.

Deposition of Amit Champalal Acharya (PW-36) B
(i) PW-36, who is an Estate Agent, is an eyewitness
to the incident.

(ii) When he was standing in front of the shop of
Narayandas Jewellers on the fateful day, a C
scooterist (A-9), lost his balance while parking his
scooter in front of the shop and fell down. One
passerby tried to help him but he refused angrily.

(iii) He further testified that the scooterist (A-9) left D
hurriedly after parking the scooter. This further
shows that he was aware that there was a bomb
inside the scooter which could explode anytime.

(iv) He identified the appellant (A-9) in the identification
parade held on 13.05.1993 at the office of CID in E
Crawford Market.

Ms. Farhana Shah, learned counsel contended on behalf
of the appellant (A-9) that the deposition of this witness should
be discarded since PW-36 failed to identify the appellant in the
F
court when he was given opportunity twice. The prosecution
submits that non-identification of A-9 in the Court would not
make the deposition of PW-36 unreliable as he did identify the
appellant (A-9) in the identification parade held on 13.05.1993.
The identification parade took place shortly after the blasts but
the identification in court took place only on 12.01.1996, which G
is almost after three years, thus it is possible that due to
passage of time PW-36 was unable to identify the appellant
before the court. The prosecution further submits that this does
not impeach the deposition made by PW-36 since his evidence
is sufficiently corroborated by the deposition of PW-29 in all H
422 SUPREME COURT REPORTS [2013] 15 S.C.R.

A material aspects. The prosecution has brought to our notice that
the identification parade dated 25.03.1993 was conducted at
Sacred Hearts High School by Ram S. Bhosale (PW-460), who
conducted the parade in compliance with the provisions of the
Code. PW-460 also recognized Exh.1471, i.e., memorandum
B panchnama prepared during the parade. PW-460 further stated
that no police official was present in the parade room at the
time of the parade and that the appellant (A-9) was brought into
the parade room wearing a cover (chadar) so as not to reveal
his identity.

C Deposition of Moreshwar Gopal Thakur (PW-469)

Special Executive Magistrate (PW-469) conducted the
identification parade in respect of A-9. Exh. 1510 is the
memorandum of the TIP dated 13.05.1993. The following
D information is available in the said memorandum:-

(i) TIP memorandum records that a TIP was
conducted by SEM Shri Thakur (PW-460) on
13. 05.1993.
E (ii) The first witness - PW-29 identified the appellant
as the person who parked the scooter at Zaveri
Bazaar on 12.03.1993.

(iii) The second witness - PW-36 also identified the
F appellant as the person who parked the scooter at
Zaveri Bazaar on 12.03.1993.

Evidence with regard to recovery of the keys of the
Scooter:

G Deposition of Narsingh Tukaram Sherkhan (PW-556)

345. PW-556, a police officer, recorded the Disclosure
Statement made by the appellant on 21.03.1993 to the following
effect:
H
YAKUBABDUL RAZAK MEMON v. STATE OF 423
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J]

The appellant (A-9) said to the officer: A

"Come with me, I will show you the place, where J had
thrown the keys of the scooter, after I parked the said Bajaj
Scooter laden with explosives"

The said statement was recorded vide Disclosure memo B
Exh.199 in the presence of Panch Witnesses. Pursuant to the
said disclosure, the appellant (A-9) led the police party and the
same was recorded in the Panchnama (Exh. 200) to the
following effect:
c
"Upon making the statement by the accused in pursuance
of the aforesaid panchnama, we the panchas, Police party
and the accused Mohammed Shoeb Mohammed Kasam
Ghansar, Muslim, aged 30 years sat in the police jeep
Number MH-01,M-364 and as per the instruction of the D
accused,',the jeep Driver of P. N. 1938 Mahim Police
Station drove the jeep by L. J. Road, Tilak Bridge, Dadar
T.T., Ambedkar Road, Ibrahim Rahimatulla Road, Bhendi
Bazar and after the jeep reached at Johar chowk via
Mohammed Ali Road the accused asked the Jeep Driver
E
to halt the vehicle Qeep) and thereupon the jeep driver
halted the jeep. Thereafter the accused person, we the
panchas and the police party got down from the jeep.
Thereafter, as per the instruction of the accused, we the
panchas, police party crossed the Mohammed Ali
Road·and came to the open space in front of the office of F
'Time Travel & Tour' on the Western side foot path and on
coming at the said place, pointed at a gutter on Mohammed
Ali Road, situated on the opposite side of the 'Time Travel
& Tour' and the accused also pointed that the key was
thrown therein. The said gutter is at a distance of 10 feet G
from the said office. On the said gutter there are two
cement lids and below the same there is a cement grille.
In the presence of us, the panchas, distance was
measured from the said gutter which distance from the
Electric pole MHL 53 is 12 feet. H
424 SUPREME COURT REPORTS [2013] 15 S.C.R.

A The accused push aside the cement lid on the said gutter
and dipped his hand in the said gutter and removed a
below described key from the silt of the gutter when the
police in the presence of us, the panchas, observed the
key removed by the accused, the description of the said
B key is as follows.

There are two keys in one steel ring and on one side of
both the said keys, 'Bajaj' has been inscribed in English
and below the same '2-112' has been inscribed and on
the another side the letters K. V. P. has been inscribed in
c English and the same were smeared with the earth."

It is brought to our notice by the prosecution that these
were the keys of the scooter used in the blast at Zaveri Bazaar
and this recovery, therefore, also established the fact that the
D appellant (A-9) had parked the scooter at Zaveri Bazaar on
12.03.1993 and threw the keys in the gutter after parking the
same. The prosecution submitted that the appellant further led
the police party to recover his passport and driving licence.

E Deposition of Kamalakar Kashinath Deo (PW-51)

The evidence of PW-556 is further corroborated with the
evidence of panch witness Kamalakar Kashinath Deo (PW-51)
wherein he stated that the appellant (A-9) had made a voluntary
statement in his presence on 21.03.1993 and disclosed the
F location of the keys of the scooter.

346. It has been contended on behalf of the appellant that
the deposition of PW-51 should not be relied upon since the
gutter from where the keys were recovered had a manhole, and
G therefore, the investigating agency has planted the keys. To this,
the prosecution pointed out that PW-51 is a panch witness and
has identified the appellant as the person who offered to take
the police party to the place where the keys of the scooter had
been thrown by him and were infact recovered from the said
H gutter after duly oper1ing the manhole. It is further nointerl out
YAKUB ABDUL RAZAK MEMON v. STATE OF 425
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

that PW-51 withstood the rigorous cross-examination and is a A
credible witness.

347. It has also been contended on behalf of the appellant
that the evidence of PW-556 is unreliable due to various
contradictions. It is pointed out by the prosecution that there is B
no contradiction in the deposition of PW-556 and on going
through the same, we feel that the contradictions pointed out
on behalf of the appellant (A-9) were minor contradictions and
they do not go to the root of the matter so as to discredit the
testimony of the witness.
c
Evidence with regard to purchase of scooter:

348. The prosecution pointed out that the scooter which
was planted by the appellant (A-9) along with two other scooters,
was purchased by Munaf Halari (AA), who was a close friend D
of Tiger Memon. The said purchase was done in the following
manner:

(i) Munaf Halari approa1;;hed Abdul Sattar (PW-82) for
the purchase of these scooters under an assumed
name. E

(ii) PW-B2Jook-Munaf Halari to Govind Baria (PW-452)
and PW-452 in-turn directed them to Asgar Ali
Masalewala (PW-299).
F
(iii) Munaf Halari paid an amount of Rs. 70,000/- in
cash to PW-299 and took the delivery of two Bajaj
scooters on 10.03.1993, and the 3rd scooter was
delivered to Munaf Halari on the following day.

(iv) PW-299 is a sub-agent of PW-298 who in-turn had G
purchased the scooters from M/s. Mohan
Automobiles as deposed by Shriram Jitram Vasan
(PW-81).

H
426 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (v) PW-81 stated that he purchased the scooter from
Ajit Vanjari (PW-651) of Mis. Vasan Automobiles.

Deposition of Sayeed Abdul Sattar (PW-82)

PW-82, who was an employee of Munaf Halari (AA),
B stated that two new scooters were purchased on 11.03.1993
from the garage of PW-299 in Chor Bazar, Bombay and one
of them was of blue color. The delivery of the third scooter was
given on the next day. He identified two out of the three
scooters purchased, in court.
c
Deposition of Govind Bechan Baria (PW-452)

(i) PW-452 worked at a petrol pump where Munaf
Halari used to park his vehicle and that is how he
knew Munaf Halari.
D
(ii) PW-452 deposed that Munaf Halari, along with two
other persons, approached him to purchase new
scooters on 10.03.1993 and that the witness
referred them to Asgar Ali Masalewala (PW-299).
E
Deposition of Asgar Ali Tahir Ali Masalewala (PW-299)

(i) PW 299 carried on the business of sale/purchase
of scooters.

F (ii) On 10.03.1993, Akhtar came to PW-299 with a
request to purchase scooters. PW-299 obtained
the delivery of scooters from a dealer, viz., Nisha
Sales and gave the scooters to Akhtar and his two
companions.
G
(iii) The request for µurchase of a third scooter was
made on 10.03.1993. On 11.03.1993, he obtained
the third scooter from the abovesaid dealer and
passed it on to Akhtar and his two companions.

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 427
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

Deposition of Shriram Jitram Vasan (PW-81) A

(i) PW-81 is a scooter sub-dealer (he used to
purchase scooters from Vasan Auto and sell the
same to customers) and prepares scooter
purchase challans in the name of Mohan Auto.
B
(ii) PW-81 sold 22 scooters to Nisha Sales in early
days of 1993 three of which were of stone, blue
and cosmic colour respectively.

(iii) PW-81 identified the remaining two of the three c
scooters sold to Nisha Sales in Court.

Deposition of Ajit Vitthalrao Vanjari (PW-651)

(i) PW-651 was an employee at Vasan Auto.
D
(ii) He recognized the challans issued in respect of
purchase of Bajaj Scooters for delivery to Mis
Mohan Auto in 1993.

The prosecution pointed out that the above depositions
and the documents clearly establish the chain of purchase of
E
scooters used in the blasts on 12.03.1993.

Investigation, Recoveries and FSL Reports:

349. The place of incident, i.e., where the blast took place F
at Zaveri Bazaar was inspected by Narayan Yedu Rajguru (PW-
554) vide panchnama Exh. 1908. The panchnama described
the effect of the explosion and vide this panchnama debris and
other articles were seized by the 1.0. from the place of
occurrence. PW-554 also took samples from the place of G
occurrence in the presence of FSL Experts vide panchnama
Exhibit 1909.

Deposition of Narayan Yedu Rajguru (PW-554)

In his deposition dated 29.12.1999, he deposed that: H
428 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (i) He reached the site within 15 minutes of the blast.

(ii) He prepared a panchnama Exh.1908 in the
presence of panch witnesses and seized the
articles/blast debris etc.
B (iii) He also proved this panchnama in court.

(iv) He deposed that the Forensic expert had also
collected the samples from the blast site on
13.03.1993 and a panchnama (Exh. 1909) was
c prepared in the presence of panel'! witnesses.

(v) The panchnama was proved by the witness.

(vi) The said panchnama records the burnt scooter at
the blast site.
D
The seized articles were sent to the FSL for examination
vide Exh. Nos. 1910 and 1911. The FSL Reports pertaining to
the examination of these samples are Exh. Nos. 1883, 1884
and 1885 which show the presence of residual high explosive
E ROX in the samples forwarded for examination.

Evidence with regard to Injured Victims and the Relatives
of the Deceased:

350. Nisar Ahmed Kankarbhai Shaikh (PW-550) has
F proved the deaths and injuries caused to various persons due
to the said explosion. The following injured witnesses have also
deposed regarding the injuries received by them on account
of explosion at Zaveri Bazaar:

(i) Ramchandra Raghunath Deshmukh (PW-394)
G
was injured by a glass splinter that hit him on his
back, tearing his shirt and causing a wound.

(ii) Shivari B Garg (PW-424) was also injured by 15
to 20 glass splinters which struck him with great
H force causing multiple bleeding injuries near his left
YAKUB ABDUL RAZAK MEMON v. STATE OF 429
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J]

eye, left side of forehead, Jeft hand and chest. A

(iii) Arjun Padurang Devde (PW-578) received
injuries on the left side of his waist. He had to
remain in the hospital for 8-9 days as the injuries
were sustained due to some foreign particles which B
had pierced into his waist. It is pertinent to mention
that metallic pieces (Article 485) were extracted
from his body which were seized by Ashok Ganpat
Dabhade (PW-558) vide panchnama Exhibit 1925.

The following doctors have proved the injury certificates C
(Exh. Nos. 2364 and 2355) with regard to PWs-394 and 424:

(i) Dr. Durgaprasad Mahavir Vyas (PW-634) and;

(ii) Dr. Vijaykumar Purshotam Ved (PW-637).
D
The following witnesses have proved the ADR/lnquest
panch0amas in respect of the victims who died in the explosion:
I
(i) Sudhir Prabhakar Aspat (PW-569) and;
I E
Qii) Feroz Rajahamed Patel (PW-576) and PW-558.

T~e following witnesses have proved the death of their
relatives in the explosion:

(i) . Vinayak Dattatray Chavan (PW-395) deposed F
with regard to the death of his sister, brother-in-law
and nephew, who died due to injuries sustained in
the blast that took place at Zaveri Bazaar on
12.03.1993 and;

(ii) Radheshyam Mangalchand Poddar (PW-396) G
deposed about the death of his son due to the blast
that took place at Zaveri Bazaar.

The prosecution has also established the damage caused
to various properties due to the bomb blast at Zaveri Bazaar H
430 SUPREME COURT REPORTS (2013) 15 S.C.R.

A from the panchnama Exh. No. 1908 as also by the deposition
of PW-554. It also stands established that the damage was due
to the explosion caused with the help of ROX explosives.

351. In view of the above said confessional statement of
B the appellant (A-9), the confessional statements of other co-
accused persons as also the eye-witnesses PWs-29 and 36,
along with other witnesses duly examined by the prosecution,
the contentions raised by learned counsel for the appellant
regarding his participation in the conspiracy, landing,
C conspiratorial meetings as well as the filling of ROX during the
intervening night, are meritless as the charges framed against
the appellant (A-9) have been duly proved.

Criminal Appeal Nos. 864-865 of 2008

0 Abdul Gani Ismail Turk (A-11) ... Appellant(s)

versus

The State of Maharashtra
Through STF, CBI Bombay ... Respondent
E
********

352. Ms. Farhana Shah, learned counsel appeared for the
appellant and Mr. Gopal Subramanium,-Jearned senior counsel,
duly assisted by Mr. Mukul Gupta, learned senior counsel and
F Mr. Satyakam, learned counsel for the respondent.

353. These appeals have been filed against the final
judgment and order of conviction and sentence dated
19.09.2006 and 18.07.2007 respectively, whereby the
G appellant has been convicted and sentenced to death by the
Designated Court under TADA Bombay Bomb Blast Case,
Greater Bombay in BBC No. 1/ 1993.

Charges:

H 354. A common charge of conspiracy was framed against
YAKUB ABDUL RAZAK MEMON v. STATE OF 431
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]

all the co-conspirators including the appellant (A-11 ). The A
relevant portion of the charge is reproduced hereunder:-

"During the period from December, 1992 to April, 1993
at various places in Bombay, District Raigad and District
Thane in India and outside India in Dubai (UA.E.) Pakistan,
B
entered into a criminal conspiracy and/or were members
of the said criminal conspiracy whose object was to
commit terrorist acts in India and that you all agreed to
commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government'qs by law
established, to strike terror in the people, to alienate
c
Sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and
Muslims by using bombs, dynamites, handgrenades and
other explosives substances like ROX or inflammable
substances or fire-arms like AK-56 rifles, carbines, pistols D
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or
persons, loss of, damage to and disruption of supplies of
services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed E
to smuggle firecarms, ammunitions, detonators,
handgrenades and high explosives like RDX into India
and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
acts and for the said purpose to conceal and store all F
these arms, ammunitions and explosives at such safe
places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose
off the same as need arises. To organize training camps G
in Pakistan and in India to import and undergo weapons
training in handling of arms, ammunitions and explosives
to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, abet and knowingly
H
432 SUPREME COURT REPORTS [2013] 15 S.C.R.

A facilitate the terrorist acts and/or any act preparatory to the
commission of terrorist acts and to render any assistance
financial or otherwise for accomplishing the object of the
conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary for achieving the
B aforesaid objectives of the criminal conspiracy and that on
12.03.1993 were successful in causing bomb explosions
at Stock Exchange Building, Air India Building, Hotel Sea
Rock at Sandra, Hotel Centaur at Juhu, Hotel Centaur at
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
c at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza
Theatre and in lobbing handgrenades at Macchimar Hindu
Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and
property worth about Rs. 27 crores destroyed, and
attempted to cause bomb explosions at Naigaum Cross
D
Road and Dhanji Street, all in the city of Bombay and its
suburbs i.e. within Greater Bombay and thereby
committed offences punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120(8) of Indian Penal
Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of
E TADA (P) Act, 1987 and read with Sections 302, 307,
326, 324, 427, 435, 436, 201 and 212 of Indian Penal
Code and offences under Sections 3 and 7 read with
Sections 25 (1A), (1 B)(a) of the Arms Act, 1959, Sections
98(1 )(a)(b)(c) of the Explosives Act, 1884, Sections 3,
F 4(a)(b), 5 and 6 of the Explosive Substances Act, 1908
and Section 4 of the Prevention of Damage to Public
Property Act, 1984 and within my cognizance."

In addition to the abovesaid principal charge of conspiracy,
G the appellant was also charged on other counts which are
summarized as under:

At head Secondly:- The accused committed an offence
punishable under Section 3 (3) of TADA (P) Act 1987 by
committing the following overt acts:
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 433
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

(a) He participated in the landing of arms and A
explosives at Shekhadi in February 1993.

(b) He attended meetings at the house of Babloo
and Mobina to make plans for committing terriorist
acts. B
(c) He received training in handling of arms,
explosives at village Sandheri and Borghat.

(d) He participated in preparation of vehicle bombs
in the night of 11th/12th March 1993. c
At head Thirdly:- He planted the explosive laden Jeep
No. MP-09-S-0070 in front of Udipi Hotel in Century Bazar,
Worli on 12.3.1993, which exploded causing death of 88
persons, injuries to 159 persons and loss of properties
D
worth Rs. 2.41 crores and, thereby, committed an offence
punishable under Section 3(2)(i)(ii) of TADA.

At head Fourthly:- By causing the above mentioned
explosion which resulted into death of 88 persons, he
committed an offence punishable under Section 302 IPC. E

At head Fifthly:- By causing the above mentioned
explosion which resulted into injuries to 159 persons, he
committed an offence punishable under Section 307 IPC.

At head Sixthly:- By causing the aforesaid explosion F
which resulted into grievous injuries to 53 persons, he
committed an offence punishable under Section 326 IPC.

At head Seventhly:- By causing the above said
explosion which resulted into injuries to 106 persons, he G
• committed an.offence punishable under Section 324 IPC.

At head Eighthly:- By causing the aforesaid explosion
which resulted into damage to properties worth Rs. 2.5
crores, he committed an offence punishable under Section
H
434 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 435 IPC.

At head Ninthly:- By causing the aforesaid explosion, he
also committed an offence punishable under Section 436
IPC.
B At head Tenthly:- By causing the aforesaid explosion
which resulted into death, injuries and damage to the
properties, he committed an offence punishable under
Section 3 of the Explosive Substances Act, 1908.

c At head Eleventhly:- By causing the aforesaid
explosions by possessing explosive substances, he
committed an offence punishable under Section 4(a)(b) of
the Explosive Substances Act, 1908. ~-

At head Twelfthly:- By possessing the explosives without
D valid licence that caused the aforesaid explosions, he
committed an offence punishable under Section 9B (1) (b)
of the Explosives Act, 1884.

At head Thirteenthly:- By causing the aforesaid
E explosion which resulted into damage to the public
properties, he committed an offence punishable under
. Section 4 of the Prevention of Damage to Public Property
Act, 1984.

F Conviction and Sentence:

355. On all the aforesaid charges the appellant was found
guilty except for charges (b) and (c) a.t head secondly by the
Designated Judge. The appellant (A-11) has been convicted
and sentenced as under:
G
(i) to suffer punishment of death along with a fine of
Rs.25,000/- under Section 3(3) of TADA and
Section 120-B of IPC read with the offences
mentioned in the said charge. (charge firstly).
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 435
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]

(ii) to suffer RI for 10 years along with a fine of A
Rs.50,000/-, in default, to further undergo RI for 1
year for the offence punishable under Section 3(3)
of TADA (charge secondly).

(iii) to suffer punishment of death along with a fine of B
Rs.25,000/- for the offence punishable under
Section 3(2)(i) of TADA (charge thirdly).

(iv) to suffer punishment of death along with a fine of
Rs.25,000/- for the offence punishable under
Section 302 IPC (charge fourthly). c
(v) to suffer RI for life along with a fine of Rs.25,000/-,
in default, to further undergo RI for 6 months for the
offence punishable under Section 307 IPC (charge
fifthly). D
(vi) to suffer RI for 14 years along with a fine of
Rs.25,000/-, in default, to further undergo RI for six
months for the offence punishable under Section
326 IPC (charge sixthly).
E
(vii) to suffer RI for 2 years for the offence punishable
under Section 435 IPC (charge eighthly).

(viii) to suffer RI for 7 years along with a fine of
Rs.25,000/-, in default, to further undergo RI for 6
F
months for the offence punishable under Section
436 IPC (charge ninthly).

(ix) to suffer RI for 1O years along with a fine of
Rs.25,000/-, in default, to further undergo RI for 6
months for the offence punishable under Section 3 G
of the Explosive Substances Act, 1908 (charge
tenthly).

(x) to suffer RI for 7 years along with a fine of
Rs.25,000/·, in default, to further undergo RI for 6 H
436 SUPREME COURT REPORTS [2013] 15 S.C.R.

A months for the offence punishable under Section
4(b) of the Explosive Substances Act, 1908
(charge eleventhly).

(xi) to suffer RI for 2 years for the offence punishable
B under Section 98( 1)(b) of the Explosives Act, 1884
(charge twelfthly).

(xii) to suffer RI for 5 years along with a fine of
Rs.25,000/-, in default, to further undergo RI for 6
months for the offence punishable under Section 4
c of the Prevention of Damage to Public Property
Act, 1984 (charge thirteenthly).

Evidence:

356. The evidence against the appellant (A-11) is in the
0 form of:-

(i) his own confession;

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

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

(iv) documentary evidence.
F
Conspiracy

357. As mentioned above, a common charge of
conspiracy was framed against all the accused persons and
in order to bring home the charge, the prosecution need not
G necessarily prove that the perpetrators expressly agreed to do
or cause to be done the illegal act, the agreement may be
proved by necessary implication. Since we have elaborately
discussed the issue relating IQ conspiracy in the earlier part of
our judgment, there is no need to refer to the same once again.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 437
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J]

Confessional Statement of the appellant - Abdul Gani A
Ismail Turk (A-11)

358. Confessional statement of the appellant (A-11) under
Section 15 of TADA has been recorded on 15.04.1993, by Shri
Prem Krishna Jain (PW-189), the then DCP, Zone X, Bombay. B
The following facts emerge from the confession of the appellant:

(i) He knew that Tiger was a smuggler but he still
joined him and used to perform the work of delivery/
bringing of Hawala money.
c
(ii) He knew that Asgar Yusuf Mukadam (A-10), lmtiyaz
Yunus Miyan Ghavate (A-15), Mohammed Rafiq@
Rafiq Madi Musa Biyariwala (A-46), Anwar (AA),
Parvez Nazir Ahmed Shaikh (A-12) and the fact that
they wer€ working with Tiger. D
(iii) He used to bring money from Mulchand Sampatraj
Shah @ Choksi (A-97) of Zaveri Bazaar.

(iv) He took part in landings of silver at Mhasla,
Shekhadi where Jeeps of Raju Laxmichand Jain @ E
Raju Kodi (A-26) were used for transportation.

Iv) On 27/28 January, on being called by Shafi, he
visited the Al-Hussaini Building, where Tiger, Anwar
Theba (AA), Mohammed Rafiq @ Rafiq Madi Musa
F
Biyariwala (A-46), lmityaz Yunus Miyan Ghavate (A-
15), Parvez Nazir Ahmed Shaikh (A-12), Yakub
Abdul Razak Memon (A-1) and his wife were also
present.

(vi) On 27/28 January, 1993, he left for Mhasla G
alongwith Tiger, Anwar Theba (AA), lmtiyaz Yun us
Miyan Ghavate (A-15), Shafi, Mohammed Rafiq@
Rafiq Madi Musa Biyariwala (A-46) and Parvez
Nazir Ahmed Shaikh (A-12) and from there he went
to Shekhadi. H
'/''
,1
i
i 438 SUPREME COURT REPORTS [2013) 15 S.C.R.
I
\i
'I A (vii) As there was no landing for 2-3 days, he stayed at
I
ji
Hotel Vaisava alongwith co-accused. · ··

(viii) He· stayed along with others at Hotel Big Splash,
:I
;)
Alibaugh on 31.01:1993 where other gang
' members also joined them.
ii B
.\j '
,i! (ix) On 02/03.02.1993, late at night, he alongwith co-
'i accused lmtiyaz Yun us Miyan. Ghavate (A-15) and
I
( other 4-5 persons went to '{'Jaghani Tower by jeep.

c (x) He had seen 70-80 boxes of black coloured
·chemical, 250 - 500 hand grenades, 15-20 big
pistols, 60-70 big rifles, electronic wires, magazines
, and rounds when the boxes were brought to the
· Tower by Tiger Memon and his men. Those items
o/ were also checked by Tiger: ·

(x~ All the smuggled contraband was loaded in the
jeeps, tempo and van after their packing in the
.presence of the appellant (A-11 ).

·E (xii) The jeep of Raju Kodi (A-26) was also used for
transportation of arms and ammunitions and ROX
explosives.

·. (xiii) He also.brought one such jeep of Raju Kodi to
Bombay via Khandala and left it at Anwar's
F '(
residence as per Tiger's instructions and dropped
the other co-accused at Bandra before leaving the
vehicle. ·, ·' · ·"" ·

(xiv) He came to know about the object of smuggling of
...., • . - •• ·'t -, - •
G arms and ammunitions from the conversation of co-
accused. He knew that this was being done to take
revenge for the suffering of Muslims in the riots.
:..----- .,
(xv). He visited A-.15's residence and as per the
H instructions of Anwar Ti.~ha (AA), hA · -~ ..r• · ....
YAKUB ABDUL RAZAK MEMO!\: v STATE OF 439
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

jeep to the residence of Amjad and handed over 3 A
bags containing wire bundles and bullets to him. He
(A-11) parked the jeep there.

(xvi) He visited Tiger Memon's (AA) house after
04.02.1993 and accompanied him to the house of
8
Anwar Theba (AA) and met Suleman Mohammed
K.asam Ghavate (A-18) and Sayyed Abdul Rehman
Shaikh (A-28), who had a tempo with them.

(xvii) He received Rs. 1 lakh from Tiger Memon to be
paid to Dawood @ Dawood Taklya Mohammed C
Phanse@ Phanasmiyan (A-14). He also received
instructions to bring 'black soap' and to go along
with Suleman Mohammed Kasam Ghavate (A-18)
and Sayyed Abdul Rehman Shaikh (A-28) using a
tempo available with them. He knew that the 'black D
soap' was the same material which was brought at
Tower on 03.02.1993.

(xviii) He left for Mhasla along with Suleman Mohammed
Kasam Ghavate (A-18) and Sayyed Abdul Rehman E
Shaikh (A-28) for the said purpose.

(xix) He reached Mhasla in the morning and as
instructed, contacted Dawood Taklya (A-14) and
paid Rs. 1 lakh to him.
F
(xx) He loaded 59 bags in the tempo and left for
Bombay. On the way, he met Tiger Memon.

(xxi) On 07.03.1993, he accompanied Tiger and Shafi
(AA) to Sandra and then went to the residence of
Mobina (A-96) as per Tiger's instructions. G

(xxii) At Mobina's place, he gave his scooter to Shafi.
Other persons also went to the residence of Mobina.

(xxiii) On 08.03.1993, he accompanied Tiger Memon to H
440 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Mobina's residence.

(xxiv) He accompanied Shafi to Jogeshwari in a
Commander Jeep. He had seen Shafi with a bag
in which 2 rifles, 4-6 hand-grenades and some
rounds were kept.
B
(xxv) He then accompanied Shafi to the residence of
Mobina (A-96).

(xxvi) He went to Mahad in a Jeep along with 3 other co-
C accused, out of them, one was Bashir Ahmed
Usman Gani Khairulla (A-13) and waited at Hotel
Vasava for Tiger as per his instructions. Tiger
Memon, Javed Chikna (AA), Sharif Abdul Gafoor
Parkar @ Oadabhai (A-17), Sardar Shawali Khan
0 (A-54) and three other persons came there after
sometime.

(xxvii) In his presence, Tiger threw hand-grenades and
imparted training in firing to the co-accused at
Sandheri.
E
(xxviii) He accompanied the co-accused to Sandheri and
waited till they did firing practice.

(xxix) He also accompanied the co-accused to Bombay
and dropped them at Mahim slope. The Jeep was
F
parked at Shahnaz Hotel and keys of the jeep were
given to Tiger's parents.

(xxx) He knew about the planting of suitcases in the
hotels and the filling of ROX by the co-accused.
G
(xxxi) He knew that Maruti van was used for carrying
ROX filled suit cases for planting the same in hotels.
This van was also used for throwing of empty gunny
bags and boxes etc. immediately after they were
emptied.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 441
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J]

(xxxii)He participated in the filling of ROX in the vehicles A
along with the other co-accused persons. One
Jeep, two Maruti cars, one Maruti van, one
Ambassador car and 5 scooters were filled with
ROX under the supervision of Tiger Memon (AA)
and Javed Chikna (AA). B

(xxxiii) He accompanied Shafi to his residence and they
brought 2 new scooters to the Al-Hussaini building.
He again brought one more scooter with Shafi.

(xxxiv) Timer pencils were inserted by the co-accused C
Anwar Theba (AA) and 2 others in the ROX which
was filled in the vehicles in his presence.

(xxxv) He planted the ROX-laden Commander Jeep at
Passport office, Worli, Bombay. o
(xxxvi) He had knowledge about the smuggling of
chemicals and weapons for taking revenge and
also about the consequences on account of use of
ROX.
E
359. From the above confession, it is clear that the
appellant (A-11) was a close associate of Tiger Memon. He
had full knowledge of all the facets of the conspiracy and played
an active part in the landing and transportation of ROX and
other contrabands and making of suitcase and vehicle bombs. F
He planted a jeep containing a bomb at Century Bazaar. He
was involved in all the stages of conspiratorial design. It is thus
established from his own confession that he played an important
and active role in the conspiracy.

360. Ms. Farhana Shah, learned counsel for the appellant G
(A-11) contended that a perusal of his confession shows that
he was only an employee (driver) of Tiger Memon and was
. used only for transportation of goods and had no role in the
conspiracy. It was submitted by the prosecution that he (A-11)
knew that Tiger Memon was a criminal and he also used to t.<Jke H
442 SUPREME COURT REPORTS [2013] 15 S.C.R.

A delivery on behalf of Tiger Memon in the hawala transactions
and also participated in the smuggling of silver ignots. On 27/
28 January, he went to take delivery of arms and ammunitions
and explosives along with other accused. When the landing was
delayed by 2-3 days, he stayed in a hotel along with others. The
B appellant (A-11) has admitted in his confession that he had
seen 70 - 80 boxes of black coloured chemical, 250 - 500
hand-grenades, 15-20 big pistols, 60-70 big rifles, electronic
wires, magazines and rounds at the time of landing that took
place on 02/03.03.1993 at Waghani Tower. From the
c confessional statement of the appellant (A-11 ), it can be
concluded that he was an integral part of the conspiracy and
was a very close associate of Tiger Memon and not merely an
innocent servant who knew nothing about the actions of his
maste~. It is also evident from the fac' that in his confessional
statement, he has stated that he knew the object of the
0
smuggling of arms and ammunitions, which in his words was
"to take revenge of the suffering of Muslims".

361. It has also been contended on behalf of the appellant
that Section 15 of TADA has not been complied with and the
E warning required to be given was not given. However, a perusal
of the same shows that the officer had asked the appellant (A-
11) if he was aware that the confession to be made by him can
be used as evidence against him in the Court. The accused
had answered the aforesaid question in affirmative. The
F questions that were asked while recording the first part of the
confession were:

"whether he has any complaint against anybody?

Ans. No.
G
Q. Whether anyone has put any kind of pressure on you
to make this confessional statement?

Ans. No.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 443
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J )

Q. Whether you have been given any kind of allurement or A
threat?

Ans. No.

Q. Do you want to make your confessional statement/
statement willingly? B

Ans. Yes.

Q. Whether you understand that you are not bound to make
this statement/confessional statement?
c
Ans. Yes.

Q. Whether you understand that it may be produced in the
court as an evidence against you in case you confess?
D
Ans. Yes.·

Q. After this you will be kept at place other than the custody
of Tapasi Officer. Whether you know this?

Ans. Yes. E

Q. Do you still desire to make a confession ?

Ans. Yes.

Q. I do not wish to record your statement forcibly or under F
any pressure and I, therefore, give you time of 48 hours to
think over the same. During this you will be kept at place
other than the custody of Tapasi Officer. Whether have you
understood this?

Ans. Yes." G

Before recording the second part of the confession, the
officer asked the following questions to the appellant. The
·questions and answers are quoted below:
H
444 SUPREME COURT REPORTS [2013] 15 S.C.R.

A "Q. On 15.4.93, you were produced before me and on that
day you were given time of 48 hours to think over before
recording the statement. That time limit has been expired,
have you thought it over?

Ans. Yes.
B
Q. Whether you are under any pressure or you have been
given any threat or allurement to make this confessional
statement?

c Ans. No.

Q. Whether you know that, if you make any confession,
then it may be produced in the court as an evidence
against you?

D Ans. Yes."

The above quoted conversation shows that the appellant
(A-11) had been given due warning by the officer recording the
statement that his statement can be used against him. He had
E also been asked if there was any coercion or threat due to which
he was giving his confessional statement. The questions and
answers establish that the confession made by the appellant
(A-11) was voluntary.

362. It has also been contended by the side of the
F ·appellant that a part of the confession was made after two
months and, hence, it is a manipulated confession. This
contention of the appellant (A-11) is devoid of any merit. The
second confession has been discarded by the trial court and
the prosecution has also not pressed into service that
G confession before this Court.

363. Learned counsel for the appellant (A-11) has further
contended that the confession of the appellant (A-11) was
recorded in the odd hours of the night. It is pointed out by the
H prosecution that this fact could be elicited from the officer
YAKUB ABDUL RAZAK MEMON v. STATE OF 445
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]

recording the confession, who was the best person to answer A
the query. It was also highlighted that it was not as a matter of
routine that the confessions were recorded late at night and only
a few confessions have been recorded in the late hours which
could have been explained by the recording officer, if he was
given an opportunity to explain in the cross examination. B

364. The said confession was sought to be retracted on
11.01.1994. It is pointed out by the side of the prosecution that
the material contained in the retraction statement is vague. It
does not give any details or particulars. The said retraction C
statement fails to pin point the reason behind the failure of
concerned accused to make any complaint to the authority-
higher police officers or any other authority including Court
regarding his signatures being obtained on blank papers and/
or the papers containing some typed material and the reason
behind himself being forced to effect the said signatures. It may D
also be noted that retraction was not made at the first available
opportunity by the accused person. After arrest, the accused
persons were brought before the court number of times in 1993
and 1994 and the retraction was made many months after
making of the confession. From the above discussion, it is E
established thaMhe confession of the appellant (A-11) was
truthful and voluntary. It has also been demonstrated that the
requirements of Section 15 of TADA have been complied with.
Hence the confession of the appellant (A-11) is admissible as
substantive evidence. F

Confessional Statement of co-accused:

365. A perusal of the above confession of the appellant
(A-11) shows that he was playing a key role in furtherance of
the abovesaid conspiracy. The other accused, in their G
confessions under Section 15 of TADA, have also discussed
the role played by !he appellant (A-11) in the conspiracy.

Confessional statement of Mohammed Shoaib
Mohammed Kasam Ghansar (A-9) H
446 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Confessional statement of A-9 under Section 15 of TADA
has been recorded on 19.04.1993 and 22.04.1993 by Prem
Krishna Jain (PW 189), the then DCP, Zone X, Bombay. In the
abovesaid confessional statement, the reference to the
appellant (A-11) is as follows:
B
"We, thereafter, came at Al- Hussaini Building of Tiger by
red coloured Maruti van. He took the car inside after
dropping me at the gate and took me inside after ten
minutes and offered me a chair to sit. At that time Gani,
Parvez, Shafi, Anvar were present there and 5/6 more
c persons were working in garage."

(emphasis supplied)

Confessional statement of Asgar Yusuf Mukadam (A-10)
D Confessional statement of A-10 under Section 15 of TADA
has been recorded on 23.04. 1994 (18:00 hrs), by Shri Krishan
Lal Bishnoi (PW-193), the then DCP, Zone 111, Bombay. In his
confessional statement, the reference to the appellant (A-11)
is as follows:
E
(i) His confession establishes that the appellant (A-11)
was a close associate of Tiger Memon and used
to assist him in hawala transactions by accepting
delivery and receipt of funds. He also used to assist
F Tiger in the landing of smuggled items and their
transportation to various places.

(ii) A-11, alongwith other co-accused, assisted the
accused (A-10) in collecting Rs. 1 crore from
Choksi (A-97) for Yakub Abdul Razak Memon. (A-
G 1)

(iii) Following the departure of Tiger, he was seen
present alongwith other co-accused; viz., Javed
Chikna (A-12), Shafi, Parvez, Bashir, Usman etc.
H at Tiger's residence where various vehicles loaded
YAKUBABDUL RAZAK MEMON v. STATE OF 447
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J]

with ROX were parked which were used for causing A
bomb blast

Confessional statement of Parvez Nazir Ahmed Shaikh
(A-12)

Confessional statement of A-12 under Section 15 of TADA B
has been recorded on 18.04.1993 (14:00 hrs) and 21.04.1993
(06:50 hrs) by Prem Krishna Jain (PW 189), the then DCP,
Zone X, Bombay. The references made by him with regard to
the appellant (A-11) are as follows:
c
(i) A-11 introduced A-12 to Tiger Memon.

(ii) A-11 worked in the Tiger's office at Dongri and
introduced A-12 to Tiger for employment in his
office.
D
(iii) A-11 used to attend Hawala transactions of Tiger
alongwith other associates and also used to help
him in his landing operations at Shekhadi Coast

(iv) A-11 went to Shekhadi Coast alongwith other
E
associates to help Tiger in the landing of arms and
ammunitions and explosives, which was delayed
and effected on 03.02.1993, and transported the
said material to the Tower and then to Bombay with
the help of the vehicles containing secret cavities
for the said purpose. F

(v) A-11 also assisted Tiger alongwith other associates
in landing at Shekhadi in the second week of
Febuary, 1993 and transportation of the
consignments to the Tower and thereafter to G
Bombay.

(vi) A-11 was present in the Al Hussaini building even
after the departure of Tiger Memon.

H
448 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (vii) On the night of 11.03.1993, A-11 filled the chemical
into the vehicles parked in the garage at the Al-
Hussaini Building.

366. It has been contended by learned counsel for the
appellant that from the confession of A-12, it can be inferred
B that the appellant (A-11) was working as a driver of Tiger
Memon. In view of the fact that A-12 has given details about
the presence and involvement of the appellant (A-11) in the
conspiracy and also about his participation in the act of loading
chemicals into the vehicles, it cannot be denied that he was not
C an integral part of the conspiracy. The fact that A-11 was
working in close association with Tiger Memon and was
entrusted with the task of driving the jeep shows the trust
reposed in him by Tiger Memon. It is just because of the said
trust, the position of responsibility commanded by the appellant
D in the conspiratorial design followed. He played an important
and significant role. It cannot be said that A-12 has not given
details of any overt act done by A-11. A-12 has, in fact, given
significant details about the involvement of A-11 in the landings
that took place and in the movement of vehicles in which
E cavities were made. A-11 was present in the Al Hussaini
building even after the departure of Tiger Memon in the early
hours of 12.03.1993. This fact establishes that there was no
coercion and threat and the appellant (A-11) was working in
pursuance of the object of the conspiracy out of his own free
F will and volition.

Confessional statement of Bashir Ahmed Usman Gani
Khairulla (A-13)

Confessional statement of A-13 under Section 15 of TADA
G has been recorded on 16.05.1993 and 18.05.1993, by Shri
Krishan Lal Bishnoi (PW-193), the then DCP, Zone 111, Bombay.
The reference to the appellant (A-11) in the said confession has
emerged as under:-

(i) A-11 participated in the firing practice at Sandheri.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 449
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J]

(ii) He was asked by Tiger to take out one gun along A
with its rounds and hand-grenades for training
purpose at Sandheri.

Confessional statement of'lmtiaz Yunus Miya Ghavate (A-
15) B
Confessional statement of A-15 under Section 15 of
TADA has been recorded on 07.05.1993 (12:30 hrs) and
09.05.1993 (13:30 hrs) by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. In his confessional statement,
the following facts have emerged: C

(i) A-11 was a close associate of Tiger Memon and
worked in his office.

(ii) A-11 had gone to receive Tiger Memon at the
D
Airport on the night of 23rd/ 24th January 1993 and
then took him to his residence.

(iii) He participated inJhe landing and transportation of
smuggled arms and ammunitions at Shekhadi.
E
(iv) He transported the arms and explosives from
Waghani Tower to Bombay in a Jeep.

Confessional statement of Sharif Abdul Gafoor Parkar @
Dadabhai (A-17)
F
Confessional statement of A-17 under Section 15 of TADA
has been recorded on 18.04.1993 and 20.04.1993, by Prem
Krishna Jain (PW 189): the then DCP, Zone X, Bombay. He
referred to the role of A-11 as follows:-
G
(i) On 07.02.1993, the appellant (A-11), along with
other co-accused (A-18 and A-28), visited the
residence of co-accused A-14, and paid Rs. 1 lakh
to him. He also brought gunny bags in a Tempo.

(ii) A-17 stated that they were given a total of Rs. 15 H
450 SUPREME COURT REPORTS [2013] 15 S.C.R.

A lakhs which included Rs. 1 lakh which was given
through the appellant (A-11 ). This money was
distributed amongst the various Custom officers,
Police officers, Trawlervala, labourers and some
money was also spent for the truck and other
B miscellaneous expenses.

(iii) The appdllant (A-11) brought other co-accused in
a Jeep. From the Jeep, handgrenades and rifles
were taken out for firing at Varad Ghat beyond
Mahad.
c
(iv) The appellant (A-11) was present along with A-17
at the foot-hill when co-accused were doing the
firing practice.

D Confessional statement of Suleman Mohd. Kasam
Ghavate (A-18)

Confessional statement of A-18 under Section 15 of TADA
has been recorded on 18.04.1993 (13:00 hrs) and 01.05.1993
E (20:30 hrs), by Sanjay Pandey (PW-492), the then DCP, Zone-
VIII, Bombay. The following facts have emerged from the
confessional statement of A-18:-

(i) On 05.02.1993, the appellant (A-11) accompanied
A-18 and A-28 and went to Mhasla in a Tempo
F bearing No. MMP- 4799 and on 06.02.1993 he met
Dawood Taklya (A-14) and Dadabhai (A-17) at
Mhasla. He helped in loading 59 to 63 packets in
the tempo. He also associated with transporting of
those bags.
G
(ii) At the instance of Tiger Memon, A-11 along with A-
18 returned to Mhasla from Panvel. They again.
went to Bomba·y along with the son of Dawood
Taklya (A-14).
H (iii) On 08.02.1993 or 09.02.1993, he met A-18 at
YAKUBABDUL RAZAK MEMON v. STATE OF 451
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Mahad when he was with Tiger and others. A

(iv) He was also present at Mhasla Tower alongwith
others.

Confessional statement of Mohd. Iqbal Mohd. Yusuf
Shaikh (A-23) B

Confessional statement of A-23 under Secti~5 of TADA
has been recorded on 20.05.1993 (10:00 hrs) and~"""- ·: 5.1993
(10:00 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then
DCP, Zone Ill, Bombay. The following facts have emerged from C
his confessional statement:

(i) The appellant (A-11) has been referred to as 'a man
of Tiger'.

(ii) The appellant (A-11) took A-23 and others to the D
hills where he (A-11) took out the arms and
ammunitions (a gun, two hand grenades, and a bag
of bullets of the gun) and Tiger imparted training in
throwing hand grenades and firing with AK-56 rifle.
E
Confessional statement of Manoj Kumar Bhanwar Lal
Gupta (A-24)

Confessional statement of A-24 under Section 15 of
TADA has been recorded on 30.04.1993 (16:15 hrs) and
09.05.1993 (19:00 hrs) by Sanjay Pandey (PW- 492), the then F
DCP, Zone-VIII, Bombay. The following facts have emerged in
his confessional statement:-

(i) A-11 participated in the first landing at Shekhadi.

(ii) At Shekhadi, the packets were opened and G
reloaded in the truck. There were AK- 56 rifles,
hand-grenades, pistols, cartridges in the packets.

(iii) A-24 also participated in the second landing at
Shekhadi along with other people (he has not H
452 SUPREME COURT REPORTS (2013) 15 S.C.R.

A named the people present in the second landing).

Confessional statement of Syed Abdul Rehman
Kamruddin Syed (A-28)

Confessional statement of A-28 under Section 15 of TADA
B has been recorded on 23.04.1993 (17:00 hrs) and 01.05.1993
(23:30 hrs) by Sanjay Pandey (PW-492), the then DCP, Zone-
VIII, Bombay. The following facts emerge from his confessional
statement:-

C (i) A-28 knew Tiger, Anwar, Rafique Madi, Haji Yakub
and Gani (A-11 ).

(ii) On 05.02.1993, the appellant (A-11 ), along with A-
18 and A-28, proceeded in a vehicle from Mahim
to Mhasala.
D
(iii) At Mhasala, he met A-14 and A-17, who got 55-60
gunny bags loaded in their temp-0.

(iv) Tiger sent A-11 and A-28 to Persian Darbar.

E Confessional statement of Shahnawaz Abdul Kadar
Qureshi (A-29)

Confessional statement of A-29 under Section 15 of TADA
has been recorded on 18.05.1993 (18:30 hrs) and 21.05.1993
F (14:45 hrs) by Shri Krishan Lal Bishnoi (PW-193), the then
DCP, Zone 111, Bombay. The statement of A-29 further
corroborates the fact that A-11 participated in the landing that
took place at Shekhadi. From the statement, it is further
established that Gani (A-11) had driven the jeep which was
G carrying the smuggled goods.

Confessional statement of Mohd. Rafique Musa Miariwala
@ Rafiq Madi (A-46)

Confessional statement of A-46 under Section 15 of TADA
H has been recorded on 21.04.1993 (19:00 hrs) and 23.04.1993
YAKUB ABDUL RAZAK MEMON v. STATE OF 453
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]
'
(21:25 hrs), by Shri Krishan Lal Bishnoi (PW-193), the then A
DCP, Zone Ill, Bombay. The following references have been
made in the said confession regarding the appellanf

(i) A-11 worked in the office of Tiger Memon.

(ii) A-11 was one of the staff members of Tiger Memon B
attending his Dongri office for assistance in his
business activities including his landing operations
of smuggled goods.

(iii) A-11, along with A-46 and other associates, c
assisted Tiger Memon in the landing at Shekhadi
which took place on 03.02.1993 after the delay of
2-3 days and then arranged for transport along with
A-17 and others for its services at the Tower.
D
(iv) A-11 reached the Tower in a Commander Jeep
and exchanged his vehicle with A-46.

Confessional statement of Sahikh Ali Shaikh Urnar (A-57)

Confessional statement of A-57 under Section 15 of TADA E
has been recorded on 19.04.1993 (12:00 hrs) by Shri Krishan
Lal Bishnoi (PW-193), the then DCP, Zone Ill, Bombay. The
reference to the appellant in the said confession is as follows:-

(i) In the first week of February, when Javed Chikna
(AA) took A-57 and A-77 to the house of Tiger F
Memon, A-11 was present there along with other
co-accused.

(ii) A-11 was seen on 10.03.1993 after a meeting took
place in a flat at Sandra. G
(iii) A-11 was present in the flat of Tiger Memon at the
Al Hussaini building on the night of 11.03.1993 and
then in the garage where the filling was being done.

H
454 SUPREME COURT REPORTS [2013] 15 S.C.R.
!

A Confessional statement of Nasir Abdul Kadar Kewal @
Nasir Dhakla (A-64)

Confessional statement of A-64 under Section 15 of
TADA has been recorded on 22.01.1995 and 24.01.1995, by
B Shri HC Singh (PW- 474), the then Superintendent of Police,
CBl/SPE/STF, New Delhi. The references to the appellant (A-
11) in the said confession are as follows:
(i) In the last week of January, when A-64 went to meet
Tiger Memon, A-11 was present there along with
C other co-accused.
(ii) He obseNed that A-11, Javed Chikna, Shafi, Anwar
Theba and Rafiq Madi used to visit the residence
of Tiger Memon.
o (iii) The appellant was seen driving a blue coloured
Maruti car in which Tiger Memon had gone to Hotel
Persian Darbar to meet the other conspirators.
(iv) While going to Shekhadi, on the way, the accused
stopped at a place, where A-11 brought a black
E coloured bag which contained five AK-47/AK-56
rifles, revolver, magazines and cartridges.
(v) The appellant participated in the first landing at
Shekhadi.
F (vi) A-11 also participated in the second landing at
Shekhadi.
(vii) He was present at the Al-Hussaini Building
compound during the preparation of vehicle bombs
by using ROX in the night of 11/12.03.1993 which
G had landed at Shekhadi.

Confessional statement of Gulam Hafiz s/o Suleman
Shaikh @ Baba (A-73)

Confessional statement of A-73 under Section 15 nf
H
YAKUBABDUL RAZAK MEMON v. STATE OF 455
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

TADA has been recorded on 15.05.1993 (22:05 hrs) and A
17.05.1993 (01:45 hrs) by Vinod Balwant Lokhande, the then
DCP, Airport Zone, Bombay. The references to the appellant
in the said confession are to be found as under:

(i) The appellant (A-11) was present at Mhasla Tower B
along with Tiger and others in a Jeep. They had
also brought a truck which was loaded with goods
which contained bombs, rifles and cartridges.

(ii) He was present while unloading contraband from
a truck into a tempo and jeep at Mhasla Tower. C

Confessional statement of Mohd. Parvez Zulfikar Qureshi
(A-100)

Confessional statement of A-100 under Section 15 of
TADA has been recorded on 15.04.1993 (23:30 hrs) and D
17.04.1993 (17:00 hrs), by Shri Sanjay Pandey (PW 492), the
then DCP, Zone-VIII, Bombay. The references to the appellant
in the said confession are as follows:

(i) He was present at the residence of Tiger Memon E
in the night of 11/12.03.1993 along with other co-
accused.

(ii) The appellant was loading 'goods' in the Jeep.

Thus, it is very well established that the appellant was F
aware of the consequences of his action and played an
important role in the conspiracy.

367. From the confessional statements of the above co-
accused, the following facts are established: G
(i) The appellant was a very close associate and
trusted confidant of Tiger Memon.

(ii) The appellant worked in the office of Tiger Memon
H
456 SUPREME COURT REPORTS (2013] 15 S.C.R.

A and was entrusted with the tasks which could only
be assigned to trusted and responsible persons.

(iii) The appellant played an active role in the hawala
transactions of Tiger Memon.
B (iv) The appellant used to collect money from Choksi
(A-97) of Zaveri Bazaar.

(v) The appellant collected Rs. 1 lakh from Choksi (A-
97) for Yakub Memon (A-1).
c (vi) The appellant was involved in the episode of landing
of arms and ammunitions and explosives at
Shekhadi Coast.

(vii) The appellant was present at Waghani Tower where
D the said articles were shifted in a tempo and jeep.

(viii) The appellant participated in the landing which took
place at Mhsala and was also entrusted with the duty
of transportation of the smuggled goods.
E
(ix) The appellant was present in the garage of the Al-
Hussaini Building in the inteNening night between
11/12.03.1993.

(x) The appellant was actively involved in the work of
F filling of chemical in the vehicles for their use as
bombs.

(xi) On 23/24.01.1993, the appellant had gone to the
Airport to receive Tiger Memon.

G (xii) The appellant attended conspiratorial meetings.

(xiii) The appellant was a participant in the training
programme conducted at Sandheri by Tiger
Memon.
H

,.
YAKUB ABDUL RAZAK MEMON v. STATE OF 457
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

(xiv) The appellant was present in the Al-Hussaini A
building even after the departure of Tiger Memon.

(xv) The appellant was one of the most active member
of the conspiracy and was a part of it from the
stage of inception to the final stage of execution of B
the terrorist activities.

(xvi) The appellant participated in the conspiracy from
planning to execution at various stages.

Retracted Confessions: c
368. We have already held that the confessional statement
made by a person under Section 15 of TADA shall be
admissible in the trial of a co-accused for offence committed
and tried in the same case together with the accused who D
makes the confession. A confessional statement given under
Section 15 shall not be discarded merely for the reason that
the same has been retracted. Further, a voluntary and truthful
confessional statement recorded under Section 15 of the
TADA Act requires no corroboration. Since the very same
objection raised in the connected appeals was considered E
earlier, we are not once again repeating the same. The said
conclusion is applicable to these appeals also.

Deposition of Prosecution Witnesses:
F
Deposition of Mohammed Usman Jan Khan (PW-2)
(Approver)

369. In the deposition of PW-2, the following statements
are relevant:
G
(i) PW-2 deposed that he knew A-11. He identified
the appellant in the Court.

(ii) He mentioned that Tiger Memon along with other
co-accused was waiting for the appellant to come
H
458 SUPREME COURT REPORTS [2013] 15 S.C.R.

A with his Commander Jeep after the landing had
taken place at Shekhadi.

(iii) On reaching Nagothane Petrol Pump, Shafi took
the co-accused to the South Indian Hotel at the
Petrol Pump where the witness saw the appellant
B
(A-11) sitting with Tiger along with Anwar Theba
(AA), Munna, Karimullah, Ethesham, Akbar. Then
they all had lunch in the hotel.

(iv) He also deposed about the landing of AK-56 rifles,
c rounds, hand grenades, pistols, magazines and
ROX i.e. "Kala Sabun".

(v) He also gave details of their stay at Hotel Persian
Darbar where the appellant (A-11) was also
D present.

(vi) On the same day, i.e., on 10.02.1993, at about
7:30 p.m., Tiger Memon came to Hotel Persian
Darbar with A-16. Tiger Memon went to the room
of the witness and told Shafi to shift the box which
E they had brought from their Jeep to the Jeep of the
appellant (A-11 ).

(vii) PW-2 also told about the meeting which took place
at the house of Shakil, and thereafter, the meeting
F with the appellant (A-11) outside Lucky Hotel.

370. Learned counsel for the appellant submitted that A-
11 had no involvement in the conspiracy and was used as a
driver to transport goods and people from one place to another
and also that the presence of A-11 in the important
G conspiratorial meetings has not been mentioned by the
approver. It is pointed out by the prosecution that the charges
against the appellant have been fully established by the
admissible and reliable evidence on record. It is also stated
that it is not necessary that the approver ought to speak about
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 459
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

each and every aspect of the prosecution case. It is not the case A
of the appellant that the approver present an inherently
contradictory facts than the one proved by the prosecution. It
is also pointed out that A-11 has admitted that he was present
when the chemical (black soap/ RDX) was being filled in the
vehicles, viz., one jeep, 2 Maruti cars, one Maruti Van, one B
Ambassador and 5 scooters. He further stated as under:

"While filling the chemical, firstly a layer of chemical was
filled and then pieces of iron were spreaded over and
again a layer of chemical was filled and pressed. I also C
had done some work. Something like pencil was pierced
into the chemical when the work of filling the chemical was
over and before we left taking the vehicle in the morning.
This work of piercing the pencil into was done by Anvar
and some other 1-2 boys."
D
Further, when a question was put to him as to why these
arms and ammunitions were brought and what was the motive
behind the conspiracy, he answered that this was to avenge
the loss suffered by Muslims during the riots and he further
admitted to be knowing the consequences of the actions, i.e., E
the destruction that would take place due to their actions.

Deposition of

Shekhar Shukra Devadiga (PW-15) (eye-witness)
F
PW-15 has deposed as under:-

(i) He had seen A-11 parking the Jeep at Century
Bazaar on 12.03.1993.

(ii) He identified A-11 in the Test Identification Parade G
held on 14.05.1993 by Moreshwar Gopal Thakur,
Special Executive Magistrate, (PW-469) for which
Memorandum Exhibit 1512 was prepared.

(iii) He again identified A-11 in the Court and said that H
460 SUPREME COURT REPORTS [2013] 15 S.C.R.

A he had observed A-11 very carefully prior to
identifying him.

(iv) He identified the appellant (A-11) as the person
who brought the blue jeep and parked it in front of
his shop which subsequently exploded.
B
(iv) He deposed that other than identifying the appellant
(A-11) in Court and seeing him on the day of the
blast, he had never seen him before.

c Regarding the evidence given by PW-15, learned counsel
for the appellant (A-11) has contended that the eye witness had
left the city after the blast and, hence, he was not reliable. In
reply to the said contention, it is rightly pointed out that this is
normal human conduct. Further, it has come on record that
0 many persons left the city immediately after the blasts. The
people who were injured or who had witnessed the blasts were
very scared and horrified by the incident. Similar explosions
were caused at various places in the city. So the people of the
city were frightened and went to their native places. The said
E conduct of the witness does not render his testimony doubtful.

Deposition of Moreshwar Gopal Thakur, Special
Executive Magistrate, (PW-469)

PW-469, the Special Magistrate, deposed on 01.02.1999.
F He stated that he conducted the Test Identification parade on
14.05.1993 for PW-15 for the identification of A-11. The
eyewitness (Shri Shreedharan Govindan and Shri Shekhara
Shukara Devadiga (PW-15)) identified the appellant (A-11) as
the person who parked the blue jeep near Century Bazaar,
G Worli. The witness also proved Exhibit 1512 which was the
identification parade panchnama.

Deposition of Maharajpuram Subramaniyam Seshadri
(PW-327)

H At the relevant time, PW-327 was the Deputy General
YAKUB ABDUL RAZAK MEMON v. STATE OF 461
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J ]

Manager, Quality Control, Mahindra & Mahindra Company. He A
deposed as under:

(i) The bumper (Article No.406) was of a Commander
Jeep. The said article was proved to be a part of
front bumper of Mahindra Jeep, Commander hard 8
top model shown to him by Inspector Gaikwad at
the office of Police at Crawford Market.

(ii) He also proved his report being Exhibit No. 655
and gave the same to Police officer Gaikwad.
c
Deposition of Anilkumar Vithal Kamat (PW 669)

At the relevant time, PW-669 was the Inspector of Police.
He deposed as under:

(i) He seized 11 articles from the place of occurrence D
in the presence of FSL Experts and prepared a
Panchnama Exhibit 2466. This panchnama
contains the details of collection of samples by
Chemical Analyser and the chassis and engine
number of fully burnt cars. E

(ii) One engine was also seized from the place of
occurrence. He also stated that the investigation
carried out so far by him provided reasonable
ground to believe the involvement of A-11.
F
(iii) He arrested the appellant.

(iv) He obtained the custody of the appellant (A-11) on
12.05.1993 from the Designated Court.
G
(v) He interrogated the appellant (A-11) and put him for
identification parade.

Deposition of Fatehsingh Sohanrao Gaekwad (PW-543)

At the relevant time, PW-543 was working with the DCB, H
462 SUPREME COURT REPORTS (2013] 15 S.C.R.

A CID. His deposition was recorded on 09.12.1999. He also
proved the death of various persons in the said blasts. He
deposed that:

(i) He recorded the statement of the appellant (A-11)
in August 1993 under Section 108 of Customs Act,
B
1962 in respect of damage done to the property
due to bomb blast.

(ii) He sought the order of sanction for prosecution of
the appellant (A-11 ), who had already been
c arrested by him along with other accused.

It has been contended by learned counsel for the appellant
that PW-543 had made a mistake and had admitted the same
in paragraph 21, so it can be inferred that they were acting
0 negligently and they have not adhered to the provisions of the
Code. PW-543 admitted as under:

"Though I had formally arrested the said 11 accused
persons, the said persons being in judicial custody, I had
not taken custody of the same and hence, I had not drawn
E any arrest panchnama while formally showing them to be
arrested in C.R. No. 1 1 7/93. My earlier statement of
myself having formally arrested the said 11 accused
persons before applying for grant of sanction is incorrect
statement. I made the said mistake of fact while giving the
F said answer."

It is pointed out by the prosecution that this mistake was
a bonafide one which the officer corrected at the earliest
opportunity. He h;;is also admitted the same in his deposition.
G The error made by him was an honest human error which cannot
be said to have caused any prejudice to the appellant (A-11 ).
From the admission of the officer, it can be conclusively inferred
that the investigation was not manipulated and the officers were
careful in the work done by them.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 463
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

Deposition of Mahesh Yashwarnt Athavale (PW-611) A

At the relevant time, PW-611 was attached with the Dadar
Police Statton as a P.S.I. He inspected the scene of offence.
On 24.03.2000, he deposed before the Court as under:

(i) A Panchnama was drawn by him being Exhibit No. B
1182 at the site regarding the prevailing situation
and ascertaining the damage in the presence of
panch witness Gaurishankar Rajnarayan Oza (PW-
307).
c
(ii) The said Panchnama was in respect of the
inspection of the site of explosion and the seizure
of bumper of the vehicle bearing No. MP-09-S-
0070 (Article No.-406).
D
(iv) The panchnama also records that a crater 11 feet
long (south to north), 14 ft, 9 inches long (east to
west) and (5ft, 9 inches deep) was found after
explosion at Century Bazaar, Worli.

(v) The windows of the nearby buildings were broken E
and extensive damage was caused in and around
the blast site.

(vi) Many vehicles were damaged and two cars were
fully burnt.
F
(vii) The said Panchnama was also proved by PW-307.

It was submitted on behalf of the appellant that the
complainant has described the scene of explosion but he has
not mentioned the name of anyone as the accused, so his G
complaint and testimony are not reliable and admissible. It is
submitted that merely because the complaint does not carry the
name of the accused, it would not lose its significance.

H
464 SUPREME COURT REPORTS (2013] 15 S.C.R.

A Deposition of Hari Shridhar Bhangale (PW-306)

PW-306 was a Constable attached with the Dadar Police
Station. At the relevant time, he was posted at Police Chowky
near Century Bazaar along with Police Naik Keny. He deposed
B before the court that:-

(i) He heard a loud explosion at the side of Rarnodia
Mansion on Annie Beasant Road.
(ii) He also felt a jolt while in chowky.
c (iii) He saw dense smoke billowing and he rushed to
the place of explosion.
(iv) At the place of explosion, he found that a big ditch/
crater was formed and that other buildings, BEST
buses, motor taxis and several cars on the said
D road got damaged and many persons sustained
injuries and had succumbed to death and were lying
nearby the spot.
(VJ He had taken 25 injured persons to Poddar
E Hospital.

Investigation, Recoveries and FSL Reports:

371. Various articles were sent to FSL vide Exhibit Nos.
1850, 1852 and 2423 for opinion and the reports of FSL were
F marked as Exhibit Nos. 1851, 1853, 2424, 2467 and 2468.
FSL reports show the traces of ROX in the said articles which
are as follows:
(i) Exhibit 1850 is a letter to the FSL dated
17.07.1993 from CID requesting information about
G percentage/purity of ROX found on forwarded
articles and components of explosives used.
(ii) Exhibit 1851 is the reply of the FSL dated
22.07.1993 to CID stating that percentage of ROX
H could be provided.
YAKUB ABDUL RAZAK MEMON v. STATE OF 465
MAljARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

(iii) Exhibit 1852 is a letter to FSL dated 08.08.1993 A
from CID requesting confirmation whether the
engine sent for examination belonged to the
exploded Mahindra Jeep No. MP-09-S-0070.

(iv) Exhibit 1853 is the reply letter of FSL stated that a B
high explosive device would have been placed
near the engine and the gear box.

(v) Exhibit 2423 is a letter from Police dated
15.03.1993 to the Chemical Analyser, Bombay
sending substances used in Century Bazar bomb c
blast and requesting for an opinion on the nature
of the bomb used.

(vi) Exhibit 2424 is a letter from Police dated
15.03.1993 requesting FSL's opinion on samples D
collected from the blast site.

(vii) · Exhibit 2466 is a panchnama containing the details
of collection of samples by chemical analyser.
Chemical Analyser has noted the chassis and
engine number of fully burnt cars. E

(viii) Exhibit 2467 is a FSL report dated 26.03.1993
giving Engine number (DQ 16230) and Chassis
number (CDR 75 0 DP-2WD-HT-DQ1620). The
report clarified that ROX was detected as an F
explosive from amongst the substances recovered
by Police at blast site.

(ix) Exhibit 2468 is FSL report dated 23.03.1993 which
confirmed the presence of ROX as explosive.
G
Witness describing the Blast and Damage:

Deposition of Anjani Bhanu Gorule (PW-388)
--
372. Her deposition was recorded on 05.08.1998. She
deposed oas under: H
466 SUPREME COURT REPORTS (2013] 15 S.C.R.

A (i) On 12.03.1993, at 2:30 p.m., while doing
household work on the first floor of her house at
Nehru Nagar, Rahivashi Sangh, Century Bazaar,
Bombay-18, she heard the sound of a loud
explosion and she was thrown on the ground floor.
B
(ii) She became unconscious. However, after gaining
consciousness, she found herself and her relative
Sunanda Tambe, who had been in her house on the
said day, in Poddar Hospital.

c (iii) She sustained burn injuries to her right leg, fracture
to left leg and minor injuries to her person due to
piercing of splinters and she remained in the
hospital for four days.

0 Deposition of Mrs. Sunita Rajendra Walvekar (PW-389)

In her deposition dated 05.08.1998, she stated that at
about 2 p.m., she had been to beauty parlour on second floor
of Ramodia Mansion. She further deposed that:

E (i) Around 2:30 to 2:35 p.m., she heard the sound of
a huge explosion.

(ii) As she was sitting near the window, something
struck on her head and left hand which caused
bleeding to her.
F
(iii) She found that shattered glass had pierced her
hand. She removed the same and wrapped the
injury with her clothes (pallu of saree) and came out
of Ramodia Mansion.
G
(iv) She found that the entire atmosphere was full of
black smoke.

(v) Her brother took her to KEM Hospital where she
was treated for 11 days.
H
YAKUBABDUL RAZAK MEMON v. STATE OF 467
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
Deposition of Jayant Anant Sawant (PW-390) A

He deposed in the Court on 05.08.1998 as follows:

(i) On 12.03.1993, at about 2.45 p.m., while he was
at his Typing and Xerox Centre situated opposite
to Passport Office on A.B. Road, he heard a loud B
explosion from the side of Century Bazaar.

(ii) He was thrown away at a distance of 15 feet from
the place where he was.

(iii) He sustained injuries on his right cheek due to
c
striking of glass splinters and sustained bleeding
injury on his right forearm along with swelling.

(iv) He also sustained injury on his right thigh.
D
(v) He went to KEM Hospital along with 2/3 persons
who also had sustained injuries.

(vi) He was admitted in the said hospital and the glass
splinters from his cheek and thigh were removed.
E
(vii) A piece of iron rod was removed from his forearm
and plastic surgery was conducted on his right
cheek.

(viii) He remained as an indoor patient in KEM Hospital F
for one month.

(ix) One Chedda accompanied him and some more
injured persons were admitted at KEM Hospital for
treatment while others were discharged after the
treatment. G

Other Evidences:

373. PWs-644, 638 and 632-Doctors have issued the Injury
H
468 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Certificates Exhibit Nos. 2379, 2366 and 2350 for the injuries
sustained by PW-388, PW-389 and PW-390 respectively.

Deposition of Dr. Shivkumar Dhanjuram Jaiswal (PW-644)

PW-644 is a doctor attached to MA Poddar Hospital. He
B deposed regarding the Certificate issued by him and entry of
casualty Register. His deposition reveals that PW 388 was
brought to hospital on 12.03.1993 and was having 3 injuries
and in his opinion the same were involving risk to her life and
had also given history of injuries being sustained due to bomb
C blast. The Medical certificate of Anjani Manu Borale (PW-388)
certifying that she was brought to MA Poddar Hospital on
12.03.1993 due to burns during the bomb blast has been
proved by the witness.

0 Deposition of Dr. Vidya Shirvaikar (PW-638)

The witness proved the Medical certificate of Sunita
Walvekar (PW-389) dated 12.03.1993 which had been marked
as Exhibit 2366 certifying that she was treated in the out-patient
department of KEM Hospital, Pare! for Contused Lacerated
E Wound (CLW) on face below eye.

Deposition of Dr. Parag Laxman Mhatre (PW 632)

PW-632 proved Exh. No. 2350, the Medical certificate of
F Jayant Sawant dated 12.03.1993 certifying that the said victim
was treated in the out-patient department of KEM Hospital,
Pare! for Contused Lacerated Wound (CLW) on face.

374. A total of 88 people died in the blast that took place
at Century Bazaar. PWs-391 and 393 proved the death of two
G of the victims in Century Bazaar blast as follows:

(i) Vilas Baliram Gamre (PW-391) deposed as a
witness regarding the death of his father. While
travelling in BEST bus, his father Baliram Gamre
H succumbed to injuries on 12.03.1993 at about 2:30
YAKUB ABDUL RAZAK MEMON v. STATE OF 469
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

to 2:45 p.m. due to bomb blast occurred at Century A
Bazaar.

(ii) Ashalata Prakash Phatak {PW-393) proved the
death of her husband, Prakash Gopal Pathak, in the
blast that took place at Century Bazaar. B

The doctors, who examined the dead bodies of various
persons died on account of the blasts, have also deposed
regarding the injuries received by the deceased persons.

(i) Dr. Walter George Vaz (PW-476) on 03.05.1999 C
described the reasons for the death of the victims
in the blast and proved the death certificates
namely, Exhibit Nos. 1584, 1585 and 1587 which
were countersigned by him regarding cause of
death of John Thomas, Kisan Barshinge and D
Vishram Mayekar respectively after they were
examined by Dr. Baxi, Dr. Pis ' ,11, Dr. lnamdar
respectively. He also proved h;,; certificate
regarding opinion given by him for the cause of
c'·~ath of Prakash Pathak after examining his dead
b ·'y.

(ii) Dr. Anand Pandurangraj Desai {PW-477) proved
the certificates countersigned by him regarding
opinion given by him for cause of death of Baliram
Gamre, Niyati Acharya and Mamta Surendra after
examining their dead bodies.

Deposition of Kishore Laxman Sawant (PW-568)

PW-568 proved the Accidental Death Reports (ADRs)
prepared by him in respect of the dead persons in the blast.
The PSI of Dadar Police Station at KEM hospital had
registered ADR Nos. 25/93, 34/93 and 37/93 regarding
accidental death of Balimar Gamre, Kum. Niyati Acharya and
470 SUPREME COURT REPORTS (2013] 15 S.C.R.

A Prakash Pathak respectively. After the bodies were identified
by their relatives, they were sent to Coroner's Court through
officers of Coroner's Court. In the same manner, with the help
of other police officers, he had registered 34 accidental deaths
reported at KEM Hospital. The said persons succumbed to
B death due to the bomb explosion which occurred at Century
Bazaar.

Deposition of Shashikant Ramachandra Raut (PW-309)

PW-309 proved the damage caused by the explosion. The
C Panchnama El<hibit 1186 dated 15.04.1998 was drawn by the
police officer Shri Agarkar in his presence and in the presence
of co-panch on 13.03.1993 at 2.30 p.m. This panchnama was
regarding the places visited by them and especially the damage
caused to Century Bazaar Building.
D
Deposition of Devji Nanji Jogadia (PW-580)

PW-580 proved the damage to the Passport Office. At the
relevant time, he was the Superintendent of.Adminstration at
Passport Office, Bombay.
E
(i) Due to the explosion that occurred on 12.03.1993
in front of Ramodia Mansion, opposite to Passport
Office, glass panes, window frames, furniture and
doors of the Passport office Building were
F damaged.

(ii) For carrying out the repairs, an expenditure of Rs.
3,29,908/- was incurred which was paid by Ministry
of External Affairs and the quotation of M/s
Mahindra & Company was accepted for the same.
G
Deposition of PWs-583 and 647 proved the damage
caused to BEST Buses-Public properties.

(i) Sadanand Yashwant Padgaonkar (PW-583)
H was the Assistant General Manager, BEST Office,
YAKUB ABDUL RAZAK MEMeN-v. STATE OF 471
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Colaba. On 12.03.1993, he found one single A
decker bus in completely burnt condition lying at the
spot of Century Bazaar blast. He also reported
seeing 4 damaged buses being brought to
workshop at Dadar and ordered repair of the said
damaged buses and replacement of the bus lying B
at Century Bazaar which was also brought to the
workshop. In the month of August, 1993, he
received the statement sent by the Officer of the
Engineering Department of BEST informing that the
total expenditure of Rs.13,93,000/- had been c
incurred for the above stated work.

(ii) Pradeep R Karandikar (PW-647), who was an
Assistant Engineer in the Street Lighting
Department of BEST deposed that as per the
record the total cost was assessed as under: D

(a) One BEST electric light pole of value Rs.12,000/-
was vanished;

(b) 3 lanterns of value Rs.4,000/- were damaged; and
E
(c) BEST had sustained a loss of Rs .. 16,294/- due to
the blast that occurred at Century Bazaar.

Deposition of Jayvant Rahdeo Salvi (PW-316)
F
· At the relevant time, PW-316 was the Colony Officer, G-
Ward South for BMC and proved the damage caused to the
properties belonging to BMC (public property).

(i) The pipelines in the Century Bazaar which were
supplied by BMC were damaged due to the said G
explosion.

(ii) The said damage was assessed to the tune of Rs.
45,000/- by Assistant Engineer, Water Works, G-
South Ward of BMC.
H
472 SUPREME COURT REPORTS r2013] 15 S.C.R.

A Deposition of Hemant Dattatray Parab (PW-579)

At the relevant time, PW-579 was a Fire Officer in the
, Worli Fire Station and proved the damage caused in general.
In his deposition dated 08.02.2000, he deposed that:
B (i) After attending and inspecting passport office on
12.03.1993, he prepared the fire report Exhibit
2006 and Exhibit 2007 on 13.03.1993 regarding
the damage caused to the said site and the fire
spread in the said area;
c (ii) 29 vehicles on the road, 6 RCC Buildings and one
shed were under fire which was extinguished by
them.
Evidence with regard to the vehicle (Jeep) used in the
o Blast:
375. Three commander jeeps were purchased by
Mohammed Shafi Zariwala (AA). The following are the
Registration numbers of the same:-
(i) MP 09-S 0070
E
(ii) MP 09-S 0080
(iii) MP 09-S 0082
The first jeep was used for the blast at Century Bazaar,
F Worli. The other two jeeps were found abandoned and were
seized by the police. Shafi Zariwala (AA) purchased all these
vehicles through PWs-365 and 366 and bookings were done
by PW-195, an employee of Mis. Wasan Motors, who were also
dealers of jeeps. PW-627 of Mis. Wasan Motors received the
G cash payment.
Deposition of Nilesh G Parekh (PW-195)
PW-195 is a Salesman of Mis. Wasan Motors. He deposed
that:
H (i) In January, 1993, Shakeel Suleman Hasham (PW-
YAKUBABDUL RAZAK MEMON v. STATE OF 473
'MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

366) of Auto Links booked 3 Mahindra A
Commander Jeeps in the names of Altaf Hussain,
Aslam Shaikh and Jamal Ahmed of Indore. The
delivery of the said jeeps, i.e., Article Nos. 378/379
was taken. through his representative on two
different dates in the month of January 1993. B
(ii\ About ten days after the blast on 12.03.1993, the
Jeep (Article 378) bearing registration No. MP-09-
S-0082 was shown to him at MRA Marg Police
Station.
c
(iii) After 3 to 4 days, he also saw the blazer-blue
coloured Jeep (Article 379) bearing registration no.
MP-09-0-3043 at the office of Crime Branch.
(iv) He inspected the said jeeps and found that one
additional cavity box and aluminium sheet flooring D
was prepared.
(v) On 22.01.1993, the Jeep, bearing Engine No. DQ
16217, Chassis No.16217 and Temporary
Registration No. DMR-8322 was sold by M/s
E
Wasan Motors.
(vi) Exhibit 865 is the order form of 3 jeeps purchased
by Shakee1: i.e., first blazer blue coloured jeep
purchased for Altaf Hussain of M.G. Road, Indore,
M.P. with temporary registration No. DMR-8322, F
Chassis no. DQ-16217, second blazer blue
coloured jeep purchased for Aslam Shaikh of M.G.
Road, Indore, M.P. with temporary registration No.
DMR-8323, Chassis no. DQ-16140 and a third
blazer blue coloured jeep purchased for Jamal G
Ahmed of M.G. Road, Indore, M.P. with chassis no.
DQ-16230.

Deposition of Navnit Dhanpatrai Saini (PW-627)

At the relevant time, PW-627 was working as a Sales H
474 SUPREME COURT REPORTS [2013] 15 S.C.R

A Executive with Mis Wasan Automobiles at Chembur. In his
deposition dated 11.04.2000, he deposed as under:

(i) On 20.01.1993, as asked by PW 195, he met at
his residence at Bibijan Terrace, Byculla.
B (ii) He alongwith PW-366 went to Patel Petrol Pump
and received Rs.4.73 lakhs from PW-365 as an
advance for two Mahindra Commander Jeeps
which he wanted to book.

c (iii) Thereafter, he deposited the said amount with PW-
195. On 21.01.1993, as instructed by PW 195, he
along with sub-broker PW-366 had gone to PW-
365 and placed an order for one more Mahindra
Hard Top Commander Jeep and paid Rs.2.36 lakhs
o in cash and he had given the same to PW 195.

Deposition of Kailash Baheti (PW-342)

PW-342 was carrying on the business as an Auto
Consultant under the name and style of "Baheti Consultant". In
E his deposition, he deposed that on 22.02.1993, he received
the papers for registration of 3 Mahindra Commander Jeeps
at Indore. On the next day, after receiving a call from Bombay
regarding the registration papers of the jeeps, he handed over
the documents and necessary charges to Mahesh Tiwari, RTO
F Agent. The officer registered the said jeeps at RTO, Indore.
PW-342 gathered from the sale certificates that all the said
jeeps were purchased from Mis Wasan Automobiles at
Bombay and he deposed that one of the purchasers of the
jeeps was Jamal Ahmed who was residing at M.G. Road,
G Indore and other purchasers were also residents of M.G. Road,
Indore.

Deposition of Shakeel Suleman Hasham (PW-366)

PW-366 was carrying his business under the name and
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 475
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J]

style of Mis Auto Links. In his deposition dated 09.07.1998, he "A.-
disclosed that before giving the delivery of the said three jeeps
to PW 365, he got them insured through Insurance agent
Rakesh Tiwari (PW-338). He also got them registered at Indore,
M·adhya Pradesh through one Kailash Bindav. The delivery of
the said three jeeps was taken by the concerned party directly B
from the showroom of M/s Wasan Automobiles.

Deposition of Suleman Mohd. Lakdawala (PW-365)

PW-365 was running his own Petrol Pump at Byculla, under
the ·name and style of Mis Patel Brothers since 1988. Besides c
the said Petrol pump business, he was also carrying the
business of sale and purchase of motor vehicles. In his
statement dated 09.07.1998, he stated that in the month of
January/February 1993, he arranged for the purchase of three
new Commander Jeeps. The jeeps were bearing registration D
numbers of M.P. They were purchased through PW-366 from
a
Wasan Automobiles for price of Rs. 7 lakhs. The amount was
paid by Shafi Zariwala (AA) and delivery of the jeeps was taken
by Shafi who brought them to his petrol pump.
E
Deposition of Rakesh Tiwari (PW-338)

PW-338 was an Insurance Agent. Sometime, in between,
22-01-1993 and 25-01-1993, at the instance of PW-366 of
Auto Links, he insured 3 Commander Jeeps and 2 Maruti Vans
with National Insurance Company. He gave the policy F
certificates to PW-366, who paid him the necessary charges.
Exhibit 1236 colly is the cover notes of policies prepared as
per the information given by PW-366.

Mukhtar lmdad Ahmed (PW-281)
G
PW-281 deposed that he had been asked by the Shafi
(AA) to prepare cavities in the Jeep. The cavities were to be
prepared under the front seat by covering the lower portion of
the front left side seat of the jeep.
H
476 SUPREME COURT REPORTS [4013] 15 S.C.R.

A 376. The evidence of the approver, the eye-witness,
experts and others clearly implicate A-11 to the actual scene
of the crime at Century Bazaar along with linking him to taking
part in the entire conspiracy. The confession made by A-11
himself and the confessions of the various co-accussed which
B have been discussed above are in consonance with the other
available evidence. Hence, it is established that the appellant
(A-11) was an active member of the conspiracy which led to
the blasts at various places in Bombay and caused many
deaths, injuries and loss to property.
c 377. The appellant (A-11) in his confessional statement
admitted having planted the Jeep at Century Bazaar. It is clear
from his own confession along with the confessions of co-
accused and other witnesses that he himself drove the jeep and
left it there along with the bomb. It is also clear that he was
D aware of the entire conspiracy and was very close to A-1. He
actively participated in landings, smuggling of arms and
ammunitions, making of bombs and planting the bomb at
Century Bazaar. The evidence given by the doctors and the
family members of the deceased shows the extent of suffering
E that was inflicted by A-11 and the other accused in pursuance
of the said conspiracy. The quantity of ROX that was used in
blasts clearly shows and establishes the fact that the blasts
were intended to tear the economic, moral and social fabric of
the nation and to induce communal tensions. The planning,
F timing and the intensity of the blasts establish that the blasts
were synchronised so as to cause maximum damage to life
and property and the involvement of the appellant in the entire
conspiracy was of great importance as he was himself involved
in the landing of arms and ammunitions and even planted the
G jeep with a bomb which exploded in Century Bazaar.

378. In view of the above, we hold that the prosecution has
produced sufficient evidence to bring home the charges framed
against him.

H
YAKUBABDUL RAZAK MEMON v. STATE OF 477
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Criminal Appeal No. 897 of 2008 A

Parvez Nazir Ahmed Shaikh (A-12) ..... Appellant(s)

versus

The State of Maharashtra Thr. ........ Respondent(s) B
CBl-STF, Mumbai

379. Ms. Farhana Shah, learned counsel appeared for the
appellant (A-12) and Mr. Gopal Subramanium, learned senior
counsel, duly assisted by Mr. Mukul Gupta, learned senior C
counsel and Mr. Satyakam, learned counsel for the respondent.

380. The instant appeal is directed against the final
judgment and order of conviction and sentence dated
21.09.2006 and 18.07.2007 respectively, whereby the
appellant has been convicted and sentenced to death by the D
Designated Court under TADA for the Bombay Bomb Blasts
Case, Greater Bombay, BBC Case No. 1/1993.

Charges:
E
381. A common charge of conspiracy was framed against
all the co-conspirators including the appellant (A-12). The
relevant portion of the said charge is reproduced hereunder:-

"During the period from December, 1992 to April, 1993 F
at various places in Bombay, District Raigad and District
Thane in India and outside India in Dubai (UA.E.) Pakistan,
entered into a cr"1minal conspiracy and/or were members
of the said criminal conspiracy whose object was to
commit terrorist acts in India and that you all agreed to G
commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate
Sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and H
478 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Muslims by using bombs, dynamites, handgrenades and
other explosives substances like RDX or inflammable
substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or
B persons, loss of, damage to and disruption of supplies of
services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed
to smuggle fire-arms, ammunitions, detonators,
handgrenades and high explosives like RDX into India
c and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
acts and for the said purpose to conceal and store all
these arms, ammunitions and explosives at such safe
places and amongst yourselves and with your men of
confidence till its use for committing terrorist acts and
D
achieving the objects of criminal conspiracy and to dispose
off the same as need arises. To organize training camps
in Pakistan and in India to import and undergo weapons
training in handling of arms, ammunitions and explosives
to commit terrorist acts. To harbour and conceal terrorists/
E co-conspirators, and also to aid, abet and knowingly
facilitate the terrorist acts and/or any act preparatory to the
commission of terrorist acts and to render any assistance
financial or otherwise for accomplishing the object of the
conspiracy to commit terrori~' acts, to do and commit any
F other illegal acts as were necessary for achieving the
aforesaid objectives of the criminal conspiracy and that on
12.03.1993 were successful in causing bomb explosions
at Stock Exchange Building, Air India Building, Hotel Sea
Rock at Sandra, Hotel Centaur at Juhu, Hotel Centaur at
G Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza
Theatre and in lobbing handgrenades at Macchimar Hindu
Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and
H property worth about Rs. 27 crores destroyed, and
YAKUB ABDUL RAZAK MEMON v. STATE OF 479
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]
attempted to cause bomb explosions at Naigaum Cross A
Road and Dhanji Street, all in the city of Bombay and its
suburbs i.e. within Greater Bombay and thereby
committed offences punishable under Section 3(3) of
TADA (P) Act, 1987 and Section 120(B) of Indian Penal
Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of B
TADA (P) Act, 1987 and read with Sections 302, 307,
326, 324, 427, 435, 436, 201 and 212 of Indian Penal
Code and offences under Sections 3 and 7 read with
Sections 25 (1A), (1 B)(a) of the Arms Act, 1959, Sections
9B(1)(a)(b)(c) ·Of the Explosives Act, 1884, Sections 3, c
4(a)(b), 5 and 6 of the Explosive Substances Act, 1908
and Section 4 of the Prevention of Damage to Public
Property Act, 1984 and within my cognizance."

In addition to the abovesaid principal charge of conspiracy,
the appellant was also charged on the following counts: D

At head secondly; He abetted and knowingly and
intentionally facilitated the commission of terrorist
acts and acts preparatory to terrorist acts by doing
the following overt acts: E
(i) He along with co-conspirators participated in the
landing and transportation of arms, ammunition and
explosives at Shekhadi on 3rd and 7th February,
1993;
F
(ii) He participated in training in handling and use of
arms, ammunition and handgrenades on the
outskirts of village Sandheri and Borghat;

(iii) He along with co-conspirators participated in G
preparation of vehicle bombs in the night of 11th/
12th March, 1993 at Al-Hussaini Building;

(iv) He participated in the transportation of arms,
ammunition, handgrenades and electric detonators
from Jogeshwari to Musafirkhana with co-accused H
480 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Ashrafur Rehman Azimulla Sheikh @ Lalloo and
Smt. Ruksana Mohammed Shafi Zariwala and
thereby having committed an offence punishable
under Section 3(3) of the TADA.

At head thirdly; He drove scooter bearing
B
registration no. MP-14-B-5349, laden with ROX
explosives and fitted with time device detonator and
parke'd the said vehicle at Katha Bazaar, opposite
Maturchhaya Building, PS Pydhonie, Bombay
which exploded resulting in death of 4 persons,
c injuring 21 others and causing loss of properties
worth Rs. 37 lakhs and thereby committed offences
punishable under Section 3(2)(i) and (ii) of TADA.

At head fourthly; For the aforesaid act mentioned
D in charge thirdly, the appellant has committed an
offence punishable under Section 302 IPC.

At head fifthly; For the aforesaid act mentioned
in charge thirdly, the appellant committed an
offence punishable under Section 307 IPC by
injuring 21 persons.

At head sixthly; The appellant (A-12), by causing
the aforesaid explosion, which resulted in grievous
hurt to 10 persons, committed an offence
F punishable under Section 326 IPC.

At head seventhly; The appellant (A-12), by
causing the aforesaid explosion and voluntarily
causing hurt to 11 persons, committed an offence
G punishable under Section 324 IPC.

At head eighthly; The appellant (A-12), by
causing the aforesaid explosion, caused damage
to properties worth Rs. 37 lakhs, committed an
offence punishable under Section 435 IPC.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 481
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

At head ninthly; The appellant (A-12), by causing A
the aforesaid explosion, caused damage to the
property used as dwelling house and as places for
custody of property committed an offence
punishable under Section 436 IPC.
B
At head tenthly; The appellant (A-12), by causing
the aforesaid explosion, committed an offence
punishable under Section 3 of the Explosive
Substances Act, 1908.

At head eleventhly; The appellant (A-12), by C
causing the aforesaid explosion, ·~mmitted an
offence punishable under Section 4 (a)(b) of the
Explosive Substances Act, 1908.

At head twelfthly; The appellant (A-12), by o
possessing ROX without licence which was filled in
the above mentioned scooter, which was used for
causing the aforesaid explosion, committed an
offence punishable under Section 9B(1 )(b) of the
Explosives Act, 1884.
E
At head thirteenthly; The appellant (A-12),
planted an explosive laden suitcase in Room No.
1840 of Hotel Sea Rock on 12th March, 1993,
which exploded causing damage to the property to
the tune of Rs. 9 crores and thereby committed an F
offence punishable under Section 3(2)(ii) of TADA.

At head fourteenthly; The appellant (A-12), by
causing the aforesaid explosion committed an
offence punishable under Section 307 IPC. G
At head fifteenthly; The appellant (A-12), by
causing the aforesaid explosion in Hotel Sea Rock
by using explosives committed an offence
punishable under Section 436 IPC.
H
482 SUPREME COURT REPORTS [2013] 15 S.C.R.

A At head sixteenthly; The appellant (A-12) by
causing the aforesaid explosion 1n Hotel Sea Rock
which resulted in damage to the properties worth
Rs. 9 crores, committed an offence punishable
under Section 3 of the Explosive Substances Act,
B 1908.

At head seventeenthly; The appellant (A-12), by
causing the aforesaid explosion in Hotel Sea Rock
committed an offence punishable under Section 4
(a)(b) of the Explosive Substances Act, 1908.
c
At head eighteenthly; The appellant (A-12), by
possessing explosives without licence, committed
an offence punishable under Section 98 (1)(b) of
the Explosives Act, 1884.
D
382. The Designated Judge found the appellant guilty on
all the aforesaid charges. The appellant has been convicted
and sentenced for the above said charges as follows:

Conviction and Sentence:
E
(i) The appellant has been convicted and sentenced
to death under Section 3(3) of TADA and Section
120-8 of IPC read with the offences mentioned in
the said charge. In addition, the appellant was
F ordered to pay a fine of Rs. 25, 0001-. (charge
firstly)

(ii) The appellant was further found guilty for the offence
punishable under Section 3(3) of TADA for
commission of such acts as found proved from
G clauses 'a' and 'c' from charge at head secondly
framed against him and on said count the appellant
(A-12) was convicted and sentenced to suffer RI for
12 years and is ordered to pay a fine of Rs.50,000/
-, in default of payment of fine, was ordered to suffer
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 483
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]
further RI for a period of 1 year. (charge secondly) A

(iii) The appellant was further found guilty for the offence
punishable under Section 3(2}(i) of TADA for
commission of such acts as found proved from
charge at head thirdly framed against him and on
B
said count he was convicted and sentenced to
suffer punishment of death, subject to confirmation
of the same by this Court, and is also ordered to
pay a fine of Rs.25,000/-. (charge thirdly)

(iv) The appellant was further found guilty for the offence c
punishable under Section 302 IPC for commission
of such acts as found proved from charge at head
fourthly framed against him and on the said count
he was convicted and sentenced to suffer
punishment of death, subject to confirmation of the D
same by this Court, and is also ordered to pay a
fine of Rs.25,000/-. (charge fourthly)

(v) The appellant was further found guilty for the offence
punishable under Section 307 IPC for commission
E
of such acts as found proved from charge at head
fifthly framed against him and on the said count he
was convicted and sentenced to suffer RI for life
and is ordered to pay a fine of Rs.25,000/-, in
default of payment of fine, he was ordered to suffer
further RI for a period of 6 months. (charge fifthly) F

(vi) The appellant was further found guilty for the offence
punishable under Section 324 IPC for commission
of such acts as found proved from charge at head
seventhly framed against him and on the said count G
he was convicted and sentenced to suffer RI for 3
years. (charge seventhly)

(vii) The appellant was further found guilty for the offence
punishable under Section 435 !PC for commission
H
484. SUPREME COURT REPORTS [2013] 15 S.C.R.

A of such acts as found proved from charge at head
eighthly framed against him and on the said count
he was convicted and.sentenced to suffer RI for 7
•years and was ordered to pay a fine of Rs.25,000/
-, in default of payment of fine, he was ordered to
B suffer further RI for a period of 6 months. (charge
. eighthly)

(viii) The appellant (A-12) was further found guilty for the
offence punishable under Section 436 IPC for
commission of such acts as found prove<!_ from
c charge at heady ninthly framed against him and on
the said count he was convicted and sentenced to
suffer RI for 5 years and was ordered to pay a fine
/of Rs. 25,000/-, in default, to further undergo RI for
a period of 6 months. (charge ninthly)
D
(ix) The appellant was further found guilty for the offence
punishabie under Section 3 of the Explosiye
Substances Act, 1908 for commission of such acts
as found proved from charge at head tenthly framed
E against him and on the said count he was convicted
and sentenced to suffer RI for 1O years and was
. ordered to pay a fine of Rs.25,000/-, in default of
payment of fine, he was ordered to suffer further RI
· for a period of six months. (charge tenthly)
F .. (x) r The appellant was further found guilty for the offence
punishable under Section 4(b) of the Explosive
Substances Act,· 1908 for comm!ssion of such acts
as found proved from charge at head eleventhly
· framed against him and on the said count he was
convicted and sentenced to euffer RI for 7 years and
. is ordered to pay a fine of Rs.25,000/-, in default
of payment of fine, he was ordered to suffer further
RI for a period of 6 months. (charge eleventhly)

H (xi) The: appella~t was further found guilty for the offence
YAKUB ABDUL RAZAK MEMON v. STATE OF 485
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]
punishable under Section 98(1 )(b) of the_ A
Explosives Act, 1884 for commission of such acts
as found proved from charge at head twelfthly
framed against him and on the said count he was
convicted and sentenced to suffer RI for two years.
(charge twelfthly) B

(xii) The appellant was further found guilty for the offence
punishable under Section 3(2)(ii) of TADA for
commission of such acts as found proved from
charge at head thirteenthly framed against him and
on the said count he was convicted and sentenced
c
to suffer RI for life and was ordered to pay a fine of
Rs.1,00,000/-, in default of payment of fine, was
ordered to suffer further RI for a period of 3 years.
(charge thirteenthly)
D
(xiii) The appellant was further found guilty for the offence
punishable under Section 307 IPC for commission
of such acts as found proved from charge at head
fourteenthly framed against him and on the said
count he was convicted and sentenced to suffer RI E
for 10 years and was ordered to pay a fine of
Rs.1,00,000/-, in default of payment of fine, was
ordered to suffer further. RI for a period of 3 years.

(charge fourteenthly)
F
(xiv) The appellant (A-12) was further found guilty for the
offence punishable under Section 436 !PC for
commission of such acts as found proved from
charge at head fifteenthly framed against him and
on the said count he was convicted and sentenced G
to suffer RI for 10 years and was ordered to pay a
fine of Rs.1,00,000/-, in default of payment of fine,
was ordered to suffer further RI for a period of 3
years. (charge fifteenthly)
H
486 SUPREME COURT REPORTS [2013] 15 S:C.R.

A (xv) The appellant (A-12) was further found guilty for the
offence punishable under Section 3 of the Explosive
Substances Act, 1908 for commission of such acts
as found proved from charge at head sixteenthly
framed against him and on the said count he was
B convicted and sentenced to suffer RI for 7 years and
was ordered to pay a fine of Rs.25,000/-, in default
of payment of fine, was ordered to suffer further RI
for a period of 6 months. (charge sixteenthly)

(xvi) The appellant was further found guilty for the offence
c punishable under Section 4(b) of the Explosive
Substances Act, 1908 for commission of such acts
as found proved from charge at head seventeenthly
framed against him and on the said count, he was
convicted and sentenced to suffer RI for 7 years and
D was ordered to pay a fine of Rs.25,000/-, in default
of payment of fine, was ordered to suffer further RI
for a period of 6 months. (charge seventeenthly)

(xvii) The appellant was further found guilty for the offence
E punishable under Section 98(1 )(b) of the Explosives
Act, 1884 for commission of such acts as found
proved from charge at head eighteenthly framed
against him and on the said count he was convicted
and sentenced to suffer RI for two years. (charge
F eighteenthly)

Evidence:

383. The evidence against the appellant (A-12) is in the
form of:-
G
(i) his own confession;
•
(ii) confessions made by other co-conspirators; (co-
accused);

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 487
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
(iii) testimonies of prosecution witnesses including eye A
witnesses; and

(iv) documentary evidence.

Conspiracy:
B
384. As mentioned above, a common charge of
conspiracy has been framed against all the accused persons
and in order to bring home the charge, the cumulative effect of
the proved circumstances should be taken into account in
determining the guilt of the accused rather than-adopting an c
isolated approach to each of the circumstance, Since we have
elaborately discussed the issue relatirig -fo conspiracy in the
earlier part of our judgment, there is no need to refer the same
once again.

Confessional Statement of Parvez Nazir Ahmed Shaikh D
(A-12)

385. Confessional statement of A-12 under Section 15 of
TADA has been recorded on 18.04.1993 (14:00 hrs.) and
21.04.1993 (06:50 hrs.), by Shri Prem Krishna Jain (PW-189), E
the then DCP, Zone X, Bombay. The facts emerge from his
confessional statement are as under:

(i) The appellant (A-12) was introduced to Tiger by
Abdul Gani Ismail Turk (A-11)c
F
(ii) The appellant (A-12) was told by A-11 that his (A-
12) job was to bring and deliver the Hawala money.
Tiger Memon told the appellant to work with honesty.

(iii) In Tiger's 5'1'fice, the appellant (A-12) came across G
Asgar Yusuf Mukadam (A-10), Shafi (AA), Rafiq
Madi (A-46), Anwar Theba (AA), lmtiyaz
Yunusmiyan Ghavate (A-15), Salim Rahim Shaikh
(A-52), Mohd. Hussian, Mohammed Mushtaq
Moosa Tarani (A-44) and Haneef (A-40) and also
H
488 SUPREME COURT REPORTS [2013] 15 S.C.R.

A came to know that Tiger was a smuggler of silver.

(iv) In the last week of January, 1993, the appellant (A-
12) accompanied A-15 to the Tiger's residence
from where they, along with Tiger and other
associates, left for Shekhadi for landing of
B
smuggled items.

(v) The landing took place after three days. Meanwhile,
the appellant (A-12) and others stayed at Vesava
Hotel at Mahad and also at Hotel Big Splash,
c Alibaug.

(vi) On the 4th day, landing took place at Shekhadi. The
appellant and some other boys were asked to wait
for A-11 at the Tower. Thereafter, Tiger Memon
D came there along with a motor lorry which was
loaded with goods. All the boxes in the lorry were
unloaded at the Tower. The appellant and others
opened the boxes and found that they were
containing hand grenades, bullets, revolvers and
wire bundles. Thereafter, some goods were loaded
E
in the cavities of the Jeeps and the remaining
goods were loaded in the lorry.

(vii) The appellant (A-12) along with Nasir Abdul Kader
Kewal @ Nasir Dhakla (A-64), drove a Jeep and
F stayed at Khandala as instructed by Tiger. A-64 left
for Bombay as his daughter was sick. Tiger
instructed the appellant (A-12) to stay there and told
him that Suleman Mohammed Kasam Ghavate (A-
18) will come in the morning. Accordingly, A-18 and
G A-15 came to Khandala and all of them left for
Bombay.

(viii) At the time of opening of goods at the Tower, Tiger
showed a pencil like item to all ofthem and told that
it was worth Rs.25,000/- and he could blow one
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 489
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Hotel Oberoi with it. A

(ix) In the second week of February, 1993, the appellant
again went with Tiger Memon and other accused
persons to Shekhadi coast and was present there
at the time when the goods were unloaded and re- 8
loaded in the tempo. Thereafter, he went to the
Tower along with other accused persons.

(x) On 15th/16th February, 1993, the appellant along
with A-1 O went to the Tiger's residence at Al-
H ussaini Building where Shafi distributed C
Rs.10,000/- to everyone present there.

(xi) On 11th March, on the instructions of Tiger, the
appellant along with A-10, carried two suitcases,
two hand bags and one big suitcase to Room No. o
17 of Musafir-khana where he found that one bag
was containing AK-56 rifles and another bag was
having hand grenades in it. Thereafter, they went to
the house of Shafi.

(xii) The appellant (A-12) and Shafi then went to Shafi's E
sister-in-law's house at Jogeshwari in a jeep where
wife of Shafi (Rukhsana) (A-103) was also present.
Shafi kept 2 AK-56 rifles and some hand grenades
in one bag and pistols in another bag.
F
(xiii) The appellant (A-12) and others carried both the
bags and left in a Jeep and Shafi dropped them at
Mahim and asked them to go to his house.
Thereafter, they went to the house of Shafi and left
both the bags there. G

(xiv) The appellant (A-12) drove Shafi's scooter and
reached Al-Hussaini Building.

(xv) At Al-Hussaini Building, the appellant saw that the
accused persons were filling the black coloured H
490 SUPREME COURT REPORTS [2013] 15 S.C.R.

A chemical into the cars, scooters and Jeeps which
was smuggled on 03.02.1993 at Shekhadi,.

(xvi) The appellant also assisted the co-accused
persons in filling RDX in vehicles.
B (xvii) The appellant, A-10 and Shoaib were asked by
Anwar Theba (AA) to dispose off 516 plastic bags
containing the empty cardboard boxes in which
black soap was packed.

(xviii) On return to Tiger's residence, the appellant along
with Asgar and Shoaib picked up three suitcases
which were kept in the garage and reached Anwar's
residence in a red coloured Van where they met
Anwar Theba (AA) and Mushtaq (A-44). A-15 also
D joined them later.

(xix) Anwar Theba (AA) and Mushtaq (A-44) sat in the
Van and left towards Link Road. On the way, Anwar
Theba (AA) opened the bags and inserted the
pencil like articles into the chemical filled therein
E and then closed the same.

(xx) After reaching Link Road, Anwar Theba (AA)
instructed A-12 to take one bag and keep it in
Room No. 1840 of Hotel Sea Rock.
F
(xxi) Accordingly, the appellant kept the said explosive-
laden bag in the said room and reached the Al-
Hussaini Building and handed over the keys of the
said room to Anwar.

G (xxii) Thereafter, Anwar handed over an old blue
coloured Bajaj Scooter to the appellant and asked
him to park it in Katha Bazaar. Before leaving,
Anwar Theba (AA) further inserted the said pencil
into the black chemical which was filled in the
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 491
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

scooter. The appellant parked the scooter at Katha A
Bazaar and took away the keys of the scooter with
himself.

(xxiii) On 12.03.1993, When Asgar and Shoaib came to
the house of the appellant (A-12), he then handed
B
over the keys of the scooter which he had parked
at Katha Bazaar to Asgar.

(xxiv) He knew that the explosions were for taking
revenge for demolition of Babri Masjid against
Hindus. He knew that the explosion would cause C
huge loss to human lives and properties and he
intentionally committed this mistake.

386. On perusal of the aforesaid confessional statement,
the followings facts emerge: D
(i) The appellant (A-12) was a trusted confidant of
Tiger Memon since he was assisting him in crime
relating to Hawala transaction and was well
acquainted with other co-conspirators;
E
(ii) He participated in the landing of arms and
ammunitions and explosives and was fully aware of
the nature and capacity of such material which is
clear from the demonstration given by Tiger and as
stated by the appellant (A-12) that a pencil like thing F
was good enough to blow the Oberoi Hotel;

(iii) He participated in the transportation and storage of
such material;

(iv) He participated in filling of RDX in the vehicles G
parked in the garage of Al-Hussaini building;

(v) He planted the suitcase in Hotel Sea Rock knowing
that it contains RDX and is fitted with time pencil
H
492 SUPREME COURT REPORTS [2013) 15 S.C.R.

A detonator: and

(vi) He parKed the scooter laden with black chemical
and fitted with time pencil detonator at Katha
Bazaar.

B Retraction Statement:

387. It was contended on behalf of the appellant (A-12) that
since he subsequently retracted from his own confession dated
11.01.1994, the same cannot be relied upon. Since we have
c elaborately discussed the admissibility or otherwise of the
retraction statements in the earlier part of our judgment, there
is no need to refer the same once again. The said conclusion
will be applicable to this appeal also.

Confessional Statements of co-accused:
D
388. Apart from his own confession, the involvement of the
appellant has also been disclosed in the confessional
statements of the following co-accused. The legality and
acceptability of the confessions of the co-accused has been
E considered by us in the earlier part of our discussion. The said
confessions insofar as they refer to the appellant are
summarized hereinbelow:

Confessional Statement of Mohammed Soaib
F Mohammed Kasam Ghansar (A-9)

Confessional statement of A-9 under Section 15 of TADA
has been recorded on 19.04.1993 (13:10 hrs.) and 22.04.1993
(00:30 hrs.), by Prem Krishna Jain (PW-189), the then DCP,
Zone X, Bombay. A-9 with reference to A-12 has stated as
G under:

(i) The appellant (A-12) was working for Tiger Memon
and he used to visit his shop occasionally.

(ii) The appellant (A-12) along with other accused
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 493
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
persons was working in the garage at Al-Hussaini. A

(iii) A-12 and A-10, on the ir)structions of Anwar Theba
(AA), threw away six big plastic bags in the
wastage van of BMC.

(iv) In the morning of 12.03.1993, A-12 and A-10 B
brought out three VIP bags from the garage at Al-
Hussaini Building and put them in the Van and left
for the residence of Anwar.

(v) Anwar Theba (AA) inserted pencil of steel into the C
blackish chemical inside the bags and then the
appellant was dropped near a taxi and was asked
to go to Hotel Sea Rock with a bag.

(vi) The appellant came back to the Al-Hussaini
0
building.

(vii) After the blast, A-10 and A-9 went to the house of
the appellant on 13.03.1993.

Confessional Statement of Asgar Yusuf Mukadam (A-10) E
Confessional statement of A-1 O under ·Section 15 of
TADA has been recorded on 23.04.1994 (18:00 hrs.), by Shri
Krishan Lal Bishnoi (PW-193), the then DCP, Zone Ill, Bombay.
A-10 with reference to the appellant has stated as under:
F
(i) The appellant was dealing with Hawala money.

(ii) The appellant was present at Tiger's residence.

(iii) A-1 O and A-12 took Rs. 5 lakhs from Choksi (A-
97) and gave it to Sharif Abdul Gafoor Parkar @ G
Dadabhai (A-17).

(iv) The appellant assisted him in collecting Rs. 1 crore
from Choksi (A-97) for Yakub Abdul Razak Memon
(A-1). H
494 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (v) The appellant accompanied him to the Tiger's
residence and shifted two VIP bags, one hand bag
and one briefcase from Tiger's residence to Room
No.17 of the Haj Committee House, near Crawford
Market.
B
(vi) The appellant accompanied him (A-10) to the house
of Shafi and took a new scooter from his residence.

(vii) The appellant (A-12) along with other co-accused
persons was present at the Al-Hussaini building in
c the night intervening between 11/12th March and
was loading black chemical in the vehicles.

(viii) A-10 and A-12 disposed off the plastic bags in
which the empty boxes of chemicals were kept.
D
(ix) The appellant was present along with him when
Anwar Theba (AA) inserted aluminum like pencils
into the chemical filled in the suitcases.

(x) The appellant was dropped by the accused (A-10)
E on the instructions of Anwar Theba (AA} with one
of the said VIP bag.

(xi) The appellant (A-12) came back to Al-Hussaini
building, thereafter, as per the instructions of Anwar,
he drove one scooter loaded with ROX to park it
F
at the designated place.

Confessional Statement of Abdul Gani Ismail Turk (A-11)

Confessional statement of A-11 under Section 15 of
G TADA has been recorded on 15.04.1993 (22:35 hrs.) and
18.04.1993, by Shri Prem Krishna Jain (PW-189), the then
DCP, Zone X, Bombay. A-11 with reference to the appellant
has stated that:

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 495
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

(i) The appellant (A-12) was present at the residence A
of Tiger Memon on or about 27/28th January along
with co-accused Shafi, Yakub Abdul Razak Memon
(A-1), Rahim Yakub Memon, Rafiq Madi (A-46) and
lmtiyaz Yunusmiyan Ghavate (A-15), whereafter, all
of them (except Yakub and his wife) left for Mhasla/ B
Shekhadi.

(ii) The appellant (A-12) was present at Al-Hussaini on
11.03.1993 and was filling chemical @ black soap
in the vehicles along with the co-accused.
c
Confessional Statement of Dawooq @ Dawood Taklya
Mohammed Phanse @ Phanasmiyan (A-14)

Confessional statement of A-14 under Section 15 of
TADA has been recorded on 17.04.1993, by Shri P.K. Jain, D
the then DCP, Zone 111, Bombay. A-14 with reference to the
appellant stated that the appellant along with Tiger Memon and
others came to Shekhadi for landing of arms.

Confessional Statement of lmtiaz Yunusmiyan Ghavate
~~ E
Confessional statement of A-15 under Section 15 of
TADA has been recorded on 07.05.1993 (12:30 t)rs.) and
09.05.1993 (13:30 hrs.), by Shri Krishan Lal Bishnoi (PW-193),
the then DCP, Zone Ill, Bombay. A-15 with reference to the F
appellant stated the following:

(i) The appellant worked in the office of Tiger Memon.

(ii) The appellant participated in the Ian.ding at
Shekhadi. G

(iii) The appellant arrived at Anwar's house iB the
morning of 12.03,1993 along with A-10.

(iv) Thereafter, the appellant reached Al-Hussaini
H
496 SUPREME COURT REPORTS [2013] 15 S.C.R.

A building.

(v) The appellant drove a scooter filled with black
coloured soap like chemical at the instance of
Anwar Theba (AA).
B 389. On perusal of the aforesaid confessions of the co-
accused, it is clearly discernable that the appellant knowingly
participated in doing the following overt acts:

(i) The appellant was a trusted confident of Tiger
c Memon since he was assisting him in crime relating
to Hawala transactions and was well acquainted
with other co-conspirators.

(ii) The appellant participated in the landing of arms
and ammunitions and explosives and was fully
D
aware of the nature and capacity of such material.

(iii) The appellant participated in transportation and
storage of such material.

E (iv) The appellant was involved in filling of ROX in the
vehicles parked in the garage of the Al-Hussaini
building.

(v) The appellant planted suitcase in Hotel Sea Rock
knowing that it contains ROX and is fitted with time
F pencil detonator.

(vi) The appellant parked the scooter laden with black
chemical on the instructions of Anwar.

G 390. It is also clear that the confessions made by the
appellants are truthful and voluntary and were made without any
coercion. All safeguards enumerated under Section 15 of
TADA and the rules framed thereunder have been duly
complied with while recording the confessions of the appellants.

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 497
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

Deposition of Prosecution Witnesses: A

Blast at Katha Bazaar

Deposition of Laxman Dhondu Posture (PW-8)

391. PW-8 was working as a peon in the office of Chemical B
Corporation, Katha Bazaar. He is an eyewitness to the incident
and has deposed as under:

(i) The appellant parked the scooter on the road in
front of the Matruchayya Building at Katha Bazaar. c
It was this scooter in which the bomb exploded.

(ii) PW-8 identified the appellant before the court in the
dock as the person who parked the said scooter.

(iii) PW-8 identified the appellant in the identification D
parade conducted by Moreshwar Thakur (PW-469),
Special Executive Magistrate, on 13.05.1993, in
Sitaram Building.

(iv) PW-8 further deposed that his employer's scooter
E
was also parked next to the scooter parked by the
appellant which was blown into pieces.

Deposition of Abdulla Ibrahim Shaikh (PW-9)

PW-9 was a driver working with one Mr. Mehra, whose F
office was on the third floor of AGH Chambers which is opposite
to Matruchayya building:

(i) PW-9 deposed that on 12.03.1993, a boy was
trying to park a scooter adjacent to his employer's
car. G

(ii) PW-9 told the driver of the scooter not to park it
there since it would be difficult for him to take out
his car.
H
498 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (iii) PW-9 further deposed that on this the driver of the
scooter told him that he will leave in a while and
parked his scooter there itself.

(iv) While parking the scooter, the appellant even lost
B his balance and was about to fall on the car then
he helped the driver of the scooter to park it.

(v) PW-9 stated that after sometime he heard the
sound of a big explosion and saw that his car was
completely burnt.
c
(vi) PW-9 identified the appellant (A-12) before the
Court as the boy who parked the said scooter
which exploded.

(vii) PW-9 also identified the appellant in the
D
identification parade conducted on 21.03.1993 at
4.30 p.m. by PW-462 at Sacred Heart School.

392. On perusal of the depositions of PWs-8 and 9, it is
clearly established that on 12.03.1993, the appellant parked the
E scooter at Katha Bazaar, opposite to Matruchhaya Building
which later exploded. The appellant was duly identified by PWs
8 & 9 before the Court and also during the identification parade
conducted by the Special Executive Magistrate. The above
depositions also sufficiently corroborate the confessional
F statement made by the appellant that he parked a scooter laden
with explosives at Katha Bazaar.

Deposition of Vasant Ganpat Kamble (PW-462)

At the relevant time, PW-462 was the Special Executive
G Magistrate (SEM) who conducted the Test Identification Parade
for the identification of the appellant. He deposed as under:

(i) He conducted the Test Identification Parade on
21.03.1993 for PW-9.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 499
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

(ii) He further deposed that PW-9 duly identified the A
appellant (A-12).

(iii) The witness proved the panchnama of the parade
which was prepared by him and is marked as Exh.
1478.
B
Deposition of Moreshwar Thakur (PW-469)

At the relevant time, PW-469 was the Special Executive
Magistrate who conducted the Test Identification Parade for the
identification of the appellant-A-12. He deposed as under: c
(i) PW-469 conducted the Test Identification Parade
on 13.05.1993 at Sitaram Building in the presence
of two panchas and also prepared a panchnama for
the said parade.
D.
(ii) PWs-8 and 9 identified the appellant as the person
who parked the scooter at Katha Bazaar.

(iii) PW-469 in his deposition proved the panchnama.

Deposition of Suresh Satappa Walishetty (PW-680) E

PW-680 was the Investigating Officer at the relevant time
in the case pertaining to blast at Katha Bazaar:

(i) He deposed that the appellant made a statement F
before him that he was willing to make a voluntary
disclosure which was reduced into writing by him.

(ii) The appellant (A-12) led the police party to Room
No. 63 on the ground floor of Railway Quarters from
where he took out a white shirt from a trunk and G
handed over the same to the police. On inspection
by the police, it was found that it contained black
stains on both the sleeves.

(iii) He deposed that he drew a recovery panchnama of H
500 SUPREME COURT REPORTS [2013] 15 S.C.R.

A the entire event.

(iv) He deposed that on 31.05.1993, the appellant
made another disclosure statement and led the
police party and got his driving licence bearing No.
MH-01-93-5023 issued on 17.02.1993 recovered
B
from the house of his friend Mohd. Taufiq
Naulakhiya resident of Hussain Rattan Chawl. The
panchnamas for the entire event were also
prepared.
c (v) Vide covering letter dated 28.06.1993, PW-680
sent the said shirt to the Chemical Analyzer.

(vi) The report of the Chemical Analyser dated
16.07.1993 was received by him.
0 (vii) He also deposed that one Raju Kadi (A-26) made
a voluntary confession and led the police party to
his shop and he took out a packet from a cupboard
and handed over the same to the police party who
opened it and found that it contained a registration
E certificate of Bajaj Scooter bearing No. MP-14-B-
5349, Chassis No. M0-5-178695.

(viii) He deposed that he prepared two panchnamas of
the entire event.
F
The report of the Chemical Analyzer confirms the presence
of the highly explosive ROX (Cyclonite) on the shirt recovered
by the police party at the instance of the appellant (A-12). Thus
it can safely be inferred that the appellant was present at the
time of filling ROX in the vehicles and during the said process
G he had soiled his shirt.

Deposition of Sanjay Laxman Kadam (PW-530)

PW-530 was the API and had assisted PW-680 in the
H interrogation of the appellant on 31.05.1993. PW-530 confirms
YAKUB ABDUL RAZAK MEMON v. STATE OF 501
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J]

and corroborates the fact of the appellant (A-12) making a A
voluntary statement and, thereafter, leading the police party to
the house of his friend Mohd. Taufiq from where his driving
licence was recovered.

Deposition of Abdul Rauf (PW-525) B
PW-525 was a police officer at Pydhonie, Police Station
at the relevant time. He deposed that he inspected the place
of occurrence in the presence of panch witnesses. He further
deposed as under:
c
(i) He seized chassis of a scooter and a part of the
scooter which had burnt on the spot. The chassis
bore the No. M0-5-178695.

(ii) He seized the number plate of the scooter bearing
D
No. MP 1B 5349.

(iii) He also seized glass splinters and ashes from the
spot.

(iv) He deposed that he seized pieces of cloth and E
earth soaked with oil lying on the spot.

(v) He also drew a spot panchnama which was proved
by him.

Deposition of Ramesh G. Thakur (PW-64) F

PW-64, an electrician working in Andheri, has deposed as
a witness. The following facts have been established from his
statement:

(i) He is a panch witness. G

(ii) In his presence, A-26 made a voluntary statement.

(iii) A-26 led the po~ce party and the panch witness to
his shop. H
502 SUPREME COURT REPORTS [2013) 15 S.C.R.

A (iv) In his presence, the police party pursuant to
disclosure recovered the registrati.on papers of
Bajaj scooter.

Deposition of Shantilal Gandhi (PW-386)
B PW-386 was involved in the preparation of ornaments of
gold and owned a stall in Zaveri Bazaar. He deposed to the
following effect~

(i) He is a resident of Ratlam and after staying th~re
c he came to Bombay and worked at Zaveri Bazaar.

(ii) He knows A-26 since 1983.

(iii) Between 15-20th April, 1992 he went to Ratlam by
train and before leaving, he met A-26.
D
(iv) A-26 told him that since Kumbhmela was going on
in M.P., he would get 50% off on purchase of
scooters.

(v) A-26 gave him Rs.20,000/- to purchase a scooter
E from Ratlam, M.P. in the name of P.B. Mali.

(vi) He purchased the scooter for Rs.19,000/- from
Ratlam in the name of P.B. Mali and gave his
residential address as 53; tlatiram Darwaja.
F
(vii) The Registration No. of the scooter was MP-14-B-
5349.

(viii) He then booked the scooter by train to A:25 from
Ratlam.
G
Upon perusal of the evidence of PW-386, it is clearly
established that he purchased the -scooter at the behest of A-
26 from Ratlam, II/IP in the fake name of P.B. Mali and A-2~
paid the money for the said purchase. PW-386 also sent the
H registration papers to him which were subsequently recovered
YAKUB ABDUL RAZAK MEMON v. STATE OF 503
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.)
· -frooo his shop vide disclosure statement made by A-26. A

Deposition of Pratapram Buraji Mali (PW-75)

He had his own business of making gold and silver
ornaments and so also in the Share Market. He deposed as
under: B

(i) He knew Raju Kodi (A-26) for the last ten years.

(ii) He had seen Raju Kodi driving a blue coloured
scooter .of Bajaj Company.
c
(iii) He had not booked any scooter in his name.

On perusal of the aforesaid deposition, it is clearly
discernible that the scooter was booked in the fake name which
fact is also established from the dep9sition of PW-75. D

Other Witnesses:

Depositions of Dharmendra Ratilal Parekh (PW-423) and
Sadashiv Ganpat Ranmale (PW-429)
E
393. The above witnesses deposed about taking claim of
the dead body of their brothers who succumbed to the injuries
sustained during the blast at Katha Bazaar.

Deposition of Dr. Madhavrao Lalasaheb Lankeshwar
(PW-478) F

PW-478 deposed about the fact that Hiten Ratilal Parikh,
brother of PW-423 died. on account of burn injuries sustained
by him. PW-478 also issued Medical Certificate explaining the
cause of the death. G
Deposition of Vijay Harishchandra Kelvekar (PW-479)

PW-479 deposed about the fact that Baburao Ganpat
Ranmale, brother of PW-429, died on account of burn injuries
H
504 . SUPREME COURT REPORTS· [2013] 15 S.C.R.

A sustained by him. He also issued Medical Certificate
explaining the cause of the death. .. · . ,.. · 1•·
.·
Deposition of Faizan Khan (PW-372)

PW-372 deposed that Gulabi House ·awned by his
B company was damaged. He deposed thafthe damage
estimate.d to the tune of Rs.25,000/-..

Dep_osition of Dinanath Ramchand Ramani (PW-373)
•
PW-373 deposed that h·as an office at Vyapar Bhavan he
C and due to the explosion at Katha Bazaar the glass panes of
the windows in the bathroom and. balcony were damaged.

Depositions 'of Suresh. Shamrao Jathar (PW-617),
Mahes,hwar Diwakar Datt Sharma (PW-616) and A.nil
D Baburao Gorakshakar (PW-618)
I
All the abovesaid witnesses have proved the damage
, caused to the public property on account of explosion at Katha
Bazar.

· E ·. Deposition .of Namdeo Yashwant Gale (PW-430)
· · · ·" r~ i ; / · · · ,.. ·' ' .. ,
· PW-430 deposed that sustained injuries on his leg and he
forehead due to which he became unconscious and was
iadmitted in.GT Hospital.; c.:1•. ,, : ;. : .. , ._ r •. :·;·
'
F Explosion at Hotel Sea Rock: . ~·; ·.·
:,_::~ ~::~1 (' -",' .:-__..-·d:·· ,_, ~;-_.\p,. ...J.,
1
• -'-: ·• " : · ::-; i : ._, _.,
. Deposition
. '
--.·
.'
of
. -
Premchand
,- '
-.-·--
. -· '. Pandhari
.. - .· '
Nath
. - . ·- Garud.
---~----~.,
,'. . "''·(PW-23)
-. -~

~-;---- . .--.'. ··-; '.
, .
_______ ,_~~_::,~--,~-/
--
;
. ---394. PW-23 was working as an attendant in.the House
'G Keeping Department of the said H_otel. He' deposed as under:
.. ' . : ., ~--'~. '. ·-' .:._,,. ,;~ -··; ;- - _,_,_, ..... _._, ....
(i) A guest (A-12), carrying a biscuit coloured suitcase
1 and a black shoulder bag checked in Room No.
· 1840 at'?tiou_t 12:15 hrs. /' • ·· ,

H (ii) The guest (A-12) wa~ r.--nriq difficulty
YAKUB ABDUL RAZAK MEMON v. STATE OF 505
MAHARASHtRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

the lock of the room so he assisted him in opening A
the door.

(iii) The appellant asked him not to disturb as he was
exhausted and wanted to sleep.

(iv) Around 3 p.m., he heard a loud explosion due to B
which the said room was completely damaged and
the lift also stopped working.

(v) PW-23 identified the appellant before the Court in
the dock. C
(vi) He also identified the appellant in the Test
Identification Parade conducted by Vasant Kamble
(PW-462) on 21.03.1993.

Deposition of Vasant Kamble (PW-462) D

(i) He is the SEM who conducted !-he TIP on
21.03.1993 for the identification of A-12 at Sacred
Hearts School.

(ii) A Panchnama of the parade was also prepared by E
him which is marked as Exh. 1478 and he also
proved the same.

Deposition of Suresh K. Singh (PW-28)
F
At the relevant time, PW-28 was working as a bell boy in
the said hotel.

(i) On 12.03.1993, he offered help to the appellant (A-
12) to carry his biscuit coloured suitcase and black
coloured bag but he refused to take any help. G

(ii) After 10/15 minutes, he saw the appellant leaving
the hotel without luggage.

(iii) He identified the appellant (A-12) in the H
506 SUPREME COURT REPORTS (2013) 15 S.C.R.

A
Identification Parade dated 07 .05.1993 conducted
by Almedia, Special Executive Magistrate at
Sandra Police Station in the presence of panch
witness.

B Deposition of Suresh Kumar Champalal Bhandari (PW-
467)

(i) He was the panch witness of the parade conducted
by the SEM.
c (ii) He deposed that PWs-28 and 23 duly identified the
appellant (A-12) in the Identification Parade
conducted by SEM

(iii) He deposed that a panchnama was prepared for
D the parade.

The above said evidence establishes the fact that the
appellant (A-12) entered into the Room No. 1840 along with
the luggage and after leaving the same in the said room, he
E went out of the hotel. Thereafter, a big explosion took place in
the said room. Both PWs-23 and 28 have identified the
appellant (A-12).

Deposition of Ms. Darive Nicholas Henriques (PW-279)

F PW-279 was the Front Office Receptionist at Hotel Sea
Rock at the relevant time and deposed that a person by name
Domnic D'Souza came to the hotel along with one more person
to make an advance payment for Mr. Advani's reservation on
08.03.1993.

G Deposition of Johnwin George Manavalan (PW-280)

PW-280 was working as a Cashier at Hotel Sea Rock and
deposed of having accepted Rs.7,000/- on 08.03.1993
towards advance payment for reservation of the said room
H commencing from 11.03.1993, in the name of Mr. Advani. He
YAKUB ABDUL RAZAK MEMON v. STATE OF 507
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
further deposed that he issued receipt for 1he same. , A

Deposition of Valery D'Souza (PW-620) .

PW-620 was a Reservation Assistant at Hotel Sea Rock
at the relevant time and deposed that on 08.03.1993;· a person
had come to confirm the check in of one Mr. Advani on B
11.03.1993. She deposed that the said person deposited
Rs.7,000/- with the cashier and completed the ~reservation
formalities. -

Deposition of Lorraine Gonsalves (PW-495) c
A receptionist at Hotel Sea Rock testified as follows:

(i) One person came to the desk and told that he'Ti.as.
a booking in the name of Mr. Advani for Gorakhpur
Metal Company. D

(ii) He gave the booking number.

(iii) He also produced the receipt for advance payment.

(iv) He was given a registration card in which he filled E
108, Napean Sea Road, as his address.

(v) After completing all the formalities, she allotted
Room No. 1840 and handed over the keys of the
said room to him. F
Deposition of Dr. Manoj Jagatraj Virani (PW-107)

He was a doctor and residing at 100 AA, Sea View
Bungalow. He deposed that no person by name Dominic
D'Souza or Advani stayed at 108 Napean Sea Road. ·G

On perusal of the aforesaid evidence, it is established that
Room No. 1840 was booked in a fictitious name.

H
508 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Deposition of Dominic Anthony Martis (PW-333)

At the relevant time, PW-333 was working as a Security
Assistant at Hotel Sea Rock and deposed about the explosion
and damage caused due to it. He proved his complaint which
culminated into a first information report about the said incident.
8
Deposition of Rajan Mayandy Natarajan (PW-437)

He was also a Security Officer at Hotel Sea Rock and he
deposed about the scene after the blast. He further deposed
c about the inspection of the site conducted by PSI Bhagwan and
proved the panchnama drawn by him.

Dastagir Mohamad Gavandi (PW-552)

PW-552 was a police officer and he deposed as under:
D
(i) He inspected the site.

(ii) PSI Bhagwan collected 7 to 8 samples from the
room by drawing panchnama in the presence of
panch witnesses.
E
(iii) On 14.03.1993, he along with PW-531 again went
to the Hotel with FSL experts who took some
samples and handed over them to PW-531 vide
panchnama Exh. 1826.
F
(iv) On 19.03.1993, he sent three sealed packets vide
covering letter to Chemical Analyzer through PW-
531.

(v) The chemical analyser report was received on
G 29.03.1993.

The report of the Chemical Analyser in this regard is clear
that the samples sent for examination contained traces of high
explosive ROX (Cyclonite) and nitrite.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 509
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Deposition of Bhaurao Takekar (PW-531) A

PW-531 was a police officer and deposed that on
14.04.1993 he went to the Hotel along with Mandlik and Karnik,
FSL experts and inspected the said room. The FSL experts
collected samples and handed over to him. He deposed that 8
he drew a panchnama and handed over the seized articles to
PW-552. He further deposed that he handed over three sealed
packets to FSL for opinion vide covering letter Exh. 1897.

Deposition of Ashok Hotchand Motwani (PW-419)
c
PW-419 was a Project Manager at Hotel Sea Rock and
deposed about the monetary loss/damage caused to the hotel
building owing to the explosion.

Other Recoveries at the behest of the appellant:
D
Deposition of Padmakar Bhosale (PW-43)

395. PW-43 is a hawker near Gandhi Market. He deposed
that:
E
(i) The appellant made a voluntary statement that he
was in possession of the licence and the revolver
of the Tiger Memon which he has kept in a black
coloured pouch in a house.

(ii) The appellant led the police party and the panchas F
to Railway Quarters, Andheri.

(iii) The appellant took them behind his house and took
out a black coloured pouch from the cavity of a
fallen tree which contained a revolver loaded with
G
six rounds and five loose rounds were also found,
out of which, three were similar in number and two
had different numbers inscrib('!d on it.

(iv) The police party seized the same and a panchnama
was drawn by PW-506. H
510 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Deposition of Anil Prabhakar Mahabole (PW-506)

PW-506 was posted at Matunga Police Station as API. He
deposed as under:

(i) The appellant expressed his willingness to make a
B voluntary statement.

(ii) He called for two panchas.

(iii) He recorded the statement of the appellant (A-12)
by drawing the panchnama.
c
(iv) Ttie appellant (A-12) led the police party and the
panchas to Railway quarters.

(v) The appellant (A-12) then took the police party
o behind his house and from the cavity of a fallen tree
pulled out a pouch.

(vi) The said pouch contained one old cobra brand
loaded revolver and five loose live cartridges.

E 396. It is contended by the counsel for the appellant (A-
12) that there is no eye-witness to the incident of filling of ROX
and as such the said incident has not been proved by the
prosecution. It is clear from the confession of the appellant (A·
12) and the confessions of other co-accused that the work of
F filling of ROX in vehicles and suitcases was carried out in the
garage of the Al-Hussaini Building. We are also satisfied that
sufficient evidence is available on record to substantiate the
fact that the appellant (A-12) participated in filling ROX in
vehicles in the night intervening 11th/12th March, 1993.
G
397. It is contended on behalf of the appellant that PW-8
saw a person parking the said scooter at Katha Bazaar from
the window of his office which is at a distance of about 15-20
meters from the road and therefore, his statement should not
H be relied upon. It is further contended on behalf of the appellant
YAKUB ABDUL RAZAK MEMON v. STATE OF 511
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.)
(A-12} that the doctor who treated PW-8 of the injuries A
sustained by him in the blast has not been examined by the
prosecution to corroborate the evidence of PW-8. The said
contentions are also liable to be rejected since the scooter of·
PW-B's employer was parked close to the scooter parked by
the appellant (A-12). It is normal human behaviour to look out B
for one's own vehicle or employer's vehicle and accordingly,
PW-8 was attentive and had a clear sight of the scooter. Thus,
there was no difficulty in seeing the appellant parking the
scooter which later exploded. Further, PW-8 has correctly
identified· the appellant (A-12} before the Court during the dock c
proceedings and also in the Test Identification Parade. In
addition to the same, it is relevant to mention that PW-8 has
been extensively cross-examined by the defence on the point
that he was injured and he took treatment at Dr. Shah's Clinic
and he withstood the cross-examination without being shaken. D
Therefore, the credibility of the evidence of PW-8 is not affected
whatsoever.

398. It is contended on behalf of the appellant (A-12} that
PW-530 had not obtained the signatures of panch witnesses
upon the licence and/or that he had not recorded the E
Registration number of the vehicle in the Station Diary and that
the panch witness was not a local panch witness and was from
a place more than 100 kms. away. This submission is also
liable to be rejected since PW-530 clearly explained the
. circumstances in which he had taken the said panch for the F
· panchnama, i.e., the persons who were fetched by staff from
Crawford Market. PW-530 in his deposition stated that the
driving licence being a plastic card, he could not obtain the
signatures on the same and the details of the driving licence
having already been mentioned in the panchnama, he had not G
pasted the label of the signature of Panch witness upon the
same and that he had mentioned in the Station Diary the
purpose of his visit and the persons accompanying him.
'
399. Finally, it is contended on behalf of the appellant (A- H
512 SUPREME COURT R~PORTS (2013] 15 S.C.R.

A 12) that the· testimony of PW-28 should be disregarded since
he failed to identify the appellant (A-12) before the Court. This
contention of learned counsel is also liable to be rejected since
PW-28 had correctly identified the appellant (A-12) during the
test identification parade dated 07 .05 .1993 and he failed to
B identify him before the Court possibly because his testimony
was recorded after about 2 years and 9 months, i.e. on
21.12.1995.

400. In view of the above said confessional statement of
the appellant (A-12), the confessional statements of other co-
C accused persons, as also the eye-witnesses along with other
witnesses duly examined by the prosecution and recoveries
made, the charges framed against the appellant have been duly
proved.

D Criminal Appeal Nos. 941-942 of 2008

Mohammed Farooq Mohammed
Yusuf Pawale (A-16) ........ Appellant(s)

versus
E
The State of Maharashtra thr. ........ Respondent(s}
CBl-STF. Bombay

401. Ms. Farhana Shah. learned counsel appeared for the
F appellant and Mr. Gopal Subramanium, learned senior counsel,
duly assisted by Mr. Mukul Gupta, learned senior counsel and
Mr. Satyakam, learned counsel for the respondent.

402. The present appeals are directed against the final
judgment and order of conviction and sentence dated
G 09.10.2006 and 25.07.2007 respectively, whereby the
appellant has been convicted and sentenced to death by the
Designated Judge in the Bom)Jay Bomb Blast Case, Greater
Bombay in BBC No. 1/1993.

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 513
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

Charges: A

403. A common charge of conspiracy was framed against
all the co-conspirators including the appellant (A-16). The
relevant portion of the same is reproduced hereunder:

"During the period from December, 1992 to April, 1993 B
at various places in Bombay, District Raigad and District
Thane in India and outside India in Dubai (UA.E.) Pakistan,
entered into a criminal conspiracy and/or were members
of the said criminal conspiracy whose object was to
commit terrorist acts in India and that you all agreed to C
commit following illegal acts, namely, to commit terrorist
acts with an intent to overawe the Government as by law
established, to strike terror in the people, to alienate
Sections of the people and to adversely affect the harmony
amongst different sections of the people, i.e. Hindus and D
Muslims by using bombs, dynamites, handgrenades and
other explosives substances like ROX or inflammable
substances or fire-arms like AK-56 rifles, carbines, pistols
and other lethal weapons, in such a manner as to cause
or as likely to cause death of or injuries to any person or E
persons, loss of, damage to and disruption of supplies of
services essential to the life of the community, and to
achieve the objectives of the conspiracy, you all agreed
to smuggle fire-arms, ammunitions, detonators,
handgrenades and high explosives like ROX into India F
and to distribute the same amongst yourselves and your
men of confidence for the purpose of committing terrorist
acts and for the saitl purpose to conceal and store all
these arms, ammunitions and explosives at such safe
places and amongst yourselves and with your men of G
confidence till its use for committing terrorist acts and
achieving the objects of criminal conspiracy and to dispose
off the same as need arises. To organize training camps
in Pakistan and in India to import and undergo weapons
training in handling of arms, ammunitions and explosives
H
514 SUPREME COURT REPORTS [2013] 15 S.C.R.

A to commit terrorist acts. To harbour and conceal terrorists/
co-conspirators, and also to aid, abet and knowingly
facilitate the terrorist acts and/or any act preparatory to the
commission of terrorist acts and to render any assistance
financial or otherwise for accomplishing the object of the
B conspiracy to commit terrorist acts, to do and commit any
other illegal acts as were necessary for achieving the
aforesaid objectives of the criminal conspiracy and that on
12.03.1993 were successful in causing bomb explosions
at Stock Exchange Building, Air India Building, Hotel Sea
c Rock at Sandra, Hotel Centaur at Juhu, Hotel Centaur at
Santacruz, Zaveri Bazaar, Katha Bazaar, Century Bazaar
at Worli, Petrol Pump adjoining Shiv Sena Bhavan, Plaza
Theatre and in lobbing handgrenades at Macchimar Hindu
Colony, Mahim and at Bay-52, Sahar International Airport
which left more than 257 persons dead, 713 injured and
D
property worth about Rs. 27 crores destroyed, and
attempted to cause bomb explosions at Naigaum Cross
Road and Dhanji Street, all in the city of Bombay and its
suburbs i.e. within Greater Bombay and thereby
committed offences punishable under Section 3(3) of
E TADA (P) Act, 1987 and Section 120(8) of Indian Penal
Code read with Sections 3(2)(i)(ii), 3(3), 3(4), 5 and 6 of
TADA (P) Act, 1987 and read with Sections 302, 307,
326, 324, 427, 435, 436, 201 and 212 of Indian Penal
Code and offences under Sections 3 and 7 read with
F Sections 25 (1A), (1B)(a) of the Arms Act, 1959, Sections
9B(1)(a)(b)(c) of the Explosives Act, 1884, Sections 3,
4(a)(b), 5 and 6 of the Explosive Substances Act, 1908
and Section 4 of the Prevention of Damage to Public
Property Act. 1984 and within my cognizance.·
G
In addition to the aforesaid principal charge of conspiracy,
A-16 was also charged on other counts which are summarized
as follows:

At head secondly; He committed an offence
H
YAKUBABDUL RAZAK MEMON v. STATE OF 515
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
punishable under Section 3(3) of TADA by A
committing the following overt acts.

(a) He participated in the landing and transportation
of arms, ammunitions and explosives which Were
smuggled into India at Shekhadi in February, 1993.
B
(b) He visited Pakistan via Dubai for receiving.·
training in handling of arms, ammunitions and
explosives from the agents of ISi to commit terrorist
acts in India.
c
(c) He attended the conspiratorial meetings during
the month of March 1993 at the residence of Babloo
@ Nazir Anwar Shaikh and Mobina @ Baya Musa
Bhinwandiwala for making plans to commit terrorist "
act. D
(d) He participated along with co-conspirators in
loading the explosives like ROX fitted with time
device detonators in various vehicles and in the
preparation of vehicle bombs in the intervening
night of 11 /12 March, 1993. E

(e) He surveyed and conducted reconaissence of
the Stock Exchange Building and Air India Building
on 10.03.1993 for causing explosions there at the
instructions of Tiger Memon. F
At head. thirdly; He, along with PW-2 drove
explosive laden Maruti Car No. MH-03-A-2143 and
parked the same at Lucky Petrol Pump near Shiv
Sena Bhavan, Dadar, Bombay which exploded and
caused death to four persons and injury to 50 G
persons and causing loss of property worth Rs.
21,20.900/- and thereby committed an offence
punishable under Section 3(2)(i)(ii) of TADA.

At head fourthly; The appellant (A-16), by causing H
516 SUPREME COURT REPORTS [2013] 15 S.C.R.

A the aforesaid explosion which resulted in the death
of 4 persons, committed an offence punishable
under Section 302 IPC.

At head fifthly; The appellant (A-16), by causing
the aforesaid explosion which resulted in the injury
B
to 50 persons, committed an offence punishable
under Section 307 l.P.C

At head sixthly; The appellant (A-16), by causing
the aforesaid explosion, which resulted in grievous
c hurt to 1 O persons, committed an offence
punishable under Section 326 IPC.

At head seventhly; The appellant (A-16), by
causing the aforesaid explosion, which resulted into
injury to 40 persons committed an offence
D
punishable under Section 324 IPC.

At head eighthly; The appellant (A-16), by causing
the aforesaid explosion which resulted into damage
to properties worth Rs. 22 lakhs, committed an
E offence punishable under Section 435 IPC.

At head ninthly; The appellant (A-16), by causing
the aforesaid explosion, committed an offence
punishable under Section 436 IPC.
F
At head tenthly; The appellant (A-16), by causing
the aforesaid explosion, which resulted into death,
injury and damage to property as mentioned has
committed an offence punishable under Section 3
of the Explosive Substances Act, 1908.
G
At head eleventhly; The appellant (A-16), by
causing the aforesaid explosion and possessing
ROX explosives in the said car committed an
offence punishable under Section 4(a)(b) of the
H Explosive Substances Act, 1908.
YAKUB ABDUL RAZAK MEMON v. STATE OF 517
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J]

At head twelfthly; The appellant (A-16), by A
possessing ROX without licence committed an
offence punishable under Section 9B(1 )(b) of the
Explosives Act, 1884.

At head thirteenthly; The appellant (A-16), along B
with co-conspirators drove explosive laden
Ambassador Car No. MH-20-TR-622 fitted with
detonators and parked the said vehicle at the
Tunnel Road, Air India building in front of the rear
gate of Bank of Oman Limited at Air India Building C
which exploded and caused death to 20 persons
and injured 84 persons and loss of properties to the
tune of Rs. 2.15 crores and thereby committed an
offence punishable under Section 3(2)(i)(ii) of
TADA
D
At head fourteenthly;The appellant (A-16), by
causing the aforesaid explosion at Air India Building
which resulted in death, committed an offence
punishable under Section 302 IPC.
E
At head fifteenthly; The appellant (A-16), by
causing the aforesaid explosion which resulted in
the injury of 84 persons committed an offence
punishable under Section 307 IPC.

At head sixteenthly; The appellant (A-16), by F
causing the aforesaid explosion which resulted in
the grievous injury to 36 persons committed an
offence punishable under Section 326 IPC.

At head seventeenthly; The appellant (A-16), by G
causing the aforesaid explosion which resulted in
the injury of 49 persons committed an offence
punishable under Section 324 IPC.

At head eighteenthly; The appellant (A-16), by
H
518 SUPREME COURT REPORTS [2013] 15 S.C.R.

A causing the aforesaid explosion which resulted in
the damage of property committed offence
punishable under Section 435 IPC.

At head nineteenthly; The appellant (A-16), by
causing the aforesaid explosion committed an
B
offence punishable under Section 436 IPC.

At head twentiethly; The appellant (A-16), by
causing the aforesaid explosion which resulted in
the death, injury and damage to the property as
c mentioned above has committed an offence
punishable under Section 3 of the Explosive
Substances Act, 1908.

At head twenty-firstly; The appellant (A-16), by
D causing the aforesaid explosion committed an
offence punishable under Section 4(a)(b) of the
Explosive Substances Act, 1908.

At head twenty-secondly; The appellant (A-16),
by possessing the ROX explosives in the above
E mentioned vehicle without licence, committed an
offence punishable under Section 9B(1)(b) of the
Explosives Act, 1884.

At head twenty-thirdly; The appellant (A-16), by
F causing the aforesaid explosion which resulted in
the damage of public property i.e., Air India Building
committed an offence punishable under Section 4
of the Preventive Damage to Public Property Act,
1984.
G 404. The Designated Court found the appellant guilty on
all the aforesaid charges after considering the evidence brought
on record by the prosecution. The appellant has been convicted
and sentenced for the above said charges as follows:

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 519
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]

Conviction and Sentence: A

(i) The appellant has been convicted and sentenced
to death under Section 3(3) of TADA and Section
120-B of IPC read with the offences mentioned in
the said charge. In addition, the appellant was
B
ordered to pay a fine of Rs. 25, 0001-.

(charge firstly)

(ii) The appellant was found guilty for the offence
punishable under Section 3(3) of TADA and c
sentenced to suffer RI for 12 years and is ordered.
to pay a fine of Rs.25,000/-, in default, he was
ordered to suffer further RI for a period of 1 year.
(charge secondly)

(iii) The appellant was sentenced to death, subject to D
confirmation of the same by this Court, for the
offence punishable under Section 3(2)(i) of TADA
and Section 302 of IPC respectively, and is also
ordered to pay a fine of Rs.25,000/-. (charges
thirdly & fourthly) E

(iv) The appellant has been sentenced to RI for life for
the offer:ce punishable under Section 307 IPC.
(charge fifthly)

(v) The appellant has been sentenced to suffer RI for F
10 years along with a fine of Rs. 25,000/- for the
offence punishable under Section 326 IPC.
(charge sixthly)

(vi) The appellant has been sentenced to suffer RI for G
3 years along with a fine of Rs. 10,000/- for the
offence punishable under Section 324 IPC.
(charge seventhly)

H
520 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (vii) The appellant has been sentenced to suffer RI for
7 years and 10 years for the offence punishable
under Sections 435 and 436 IPC respectively along
with a fine of Rs. 25,000/-, in default, to further
undergo RI for 6 months. (charges eighthly &
B ninthly)

(viii) The appellant has been sentenced to suffer RI for
10 years along with a fine of Rs. 5,000/-, in default,
to further undergo RI for 6 months for the offence
punishable under Section 3 of the Explosive
c Substances Act, 1908. (charge tenthly)

(ix) The appellant has been sentenced to suffer RI for
7 years along with a fine of Rs. 5,000/-, in default,
to further undergo RI for 6 months for the offence
D punishable under Section 4(b) of the Explosive
Substances Act, 1908. (charge eleventhly)

(x) The appellant has been sentenced to suffer RI for
1 year for the offence punishable under Section 9-
B(1 )(b) of the Explosives Act, 1884. (charge
E
twelfthly)

(xi) The appellant has been sentenced to death along
with a fine of Rs. 25,000/, in default, to further
undergo RI for 3 years for the offence punishable
F under Section 3(2)(i) of TADA. (charge
thirteenthly)

(xii) The appellant has been sentenced to death, subject
to confirmation of the same by this Court, along with
a fine of Rs. 25,000/- for the offence punishable
G
under Section 302 IPC. (charge fourteenthly)

(xiii) The appellant has been sentenced to RI for life for
the offence punishable under Section 307 IPC.
(charge fifteenthly)
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 521
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J]

(xiv) The appellant has been sentenced to suffer RI for A
10 years along with a fine of Rs. 25, 000/- for the
offence punishable under Section 326 IPC.
(charge sixteenthly)

(xv) The appellant has been sentenced to suffer RI for B
3 years along with a fine of Rs. 10,000/- for the
offence punishable under Section 324 IPC.
(charge seventeenthly)

(xvi) The appellant has been sentenced to suffer RI for
7 years and 1O years for the offence punishable c
under Sections 435 and 436 of IPC respectively
along with a fine of Rs. 25,000/-, in default, to
further undergo RI for 6 months. (charges
eighteenthly & nineteenthly)
D
(xvii) The appellant has been sentenced to suffer RI for
10 years along with a fine of Rs. 5,000/-, in default,
to further undergo RI for 1 year under Section 3 of
the Explosive Substances Act, 1908. (charge
twentiethly)
E
(xviii) The appellant has been sentenced to suffer RI for
7 years along with a fine of Rs. 5,000/-, in default,
to further undergo RI for 1 year for the offence
punishable under Section 4(b) of the Explosive
Substances Act, 1908. (charge twenty-firstly) F

(xix) The appellant has been sentenced to suffer RI for
1 year for the offence punishable under Section 9-
B( 1)(b) of the Explosives Act, 1884. (charge
twenty-secondly) G
(xx) The appellant has been sentenced to suffer RI for
5 years along with a fine of Rs. 25,000/-, in default,
to further undergo RI for 6 months for the offence
punishable under Section 4 of Prevention of
H
522 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Damage to Public Property Act, 1984. (charge
twenty-thirdly).

Evidence:

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

(i) his own confession;

(ii) confessions made by other co-conspirators; (co-
accused);
c
(iii) testimonies of prosecution witnesses including eye
witnesses; and

(iv) documentary evidence.
D
Conspiracy:

406. As mentioned above, a common charge of
conspiracy has been framed against all the accused persons
and in order to bring home the charge, the cumulative effect of
E the proved circumstances should be taken into account in
determining the guilt of the accused rather than adopting an
isolated approach to each of the circumstances. Since we have
elaborately discussed the issue relating to conspiracy in the
earlier part of our judgment, there is no need to refer the same
F once again.

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

407. Confessional statement of A-16 under Section 15 of
G TADA has been recorded on 20.05.1993 (16:30 hrs.) and
22.05.1993 (16:45 hrs.), by Sanjay Pandey (PW-492), the then
DCP, Zone VIII, Bombay. The appellant, in his confessional
statement, has given details about his involvement in the
conspiracy. He has given the description of the meetings that
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 523
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J]
he attended. He also described about the training that took A
place in Pakistan and other relevant details about his own
involvement as well as that of the other accused. We have been
taken through his entire confession. The following facts emerge
from his confessional statement:
B
(i) He resided at Balmiya Lane, Pamkar Chaw\, Room
No. 8, Wanjewadi, Mahim, Bombay and worked as
a driver at Anees Travels, Mahim.

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

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

. , (iv) Next clay, i.e., on 08/09th February, 1993, he
accompanied Usman to Bharat Training School
"····
where he saw Javed Chikna, Nasir Dakhla and
Parvez. Two blue coloured jeeps arrived there after F
about half an hour. Javed Chikna sat in one jeep
and A-16, Shaikh Ali, Parvez, Nasir Dhak\a and
~.
Usman sat in another jeep which stopped atVashi.
"· He got down at that time and saw that Munna,
Bashir, Anwar Theba (AA) and tw~r persons G
were sitting in other jeep. He ident1 1ed Anwar and
Bashir because they used to visit Javed Chikna.
Usman told him the name of Munna.

(v) He along with Munna, Anwar and other co-accused
H
524 SUPREME COURT REPORTS [2013] 15 S.C.R.

A assisted Bhai @ Tiger Memon in the landing of 84
bags. He mentioned that it was dark and they were
prohibited from lighting even a matchstick. This
shows that the bags contained explosive material
and they did not want to take any risk.
B
(vi) He was given a plastic bag containing two pistols
for his safety by Tiger after that they searched for
the tempo which was carrying their material.

(vii) On 10.02. 1993, he along with 5 other persons left
c Bombay and reached Dubai.

(viii) On 13.02. 1993, he along with six other co-accused
persons was sent to Islamabad, Pakistan by Tiger
Memon.
D (ix) On 16.02. 1993, he was taken to the training spot
where he was given seven days' training in
dismantling and handling of arms, use of bombs,
hand grenades and chemical bombs. He further
stated:
E
"Next day we were given training in dismantling and
re-assembling the rifles and pistols and the use of
the bombs. Second day, we were given physical
training and handling of pistol and rifle. We were
F also given training in firing."

(x) On 27.02. 1993, he was taken back to Islamabad
and on 01.03. 1993 to Dubai.

(xi) In the evening on 03.03. 1993, he along with 5
G others, returned to Bombay from Dubai.

(xii) On 07.03. 1993, he attended a meeting along with
lrfan and other accused persons at Khar in which
Tiger told that he was going to cause riots in
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 525
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J]

Bombay and asked him to work with Salim Mujahid A
and lrfan.

(xiii) On 10.03.1993, he collected one white safari suit
for himself, a blue coloured suit for lrfan and a
biscuit coloured suit for Salim.
B
(xiv) On the same day, A-16, lrfan and Salim wearing
their respective suits surveyed Air India Building,
Nariman Point in a red Maruti 1000 car driven by
the appellant (A-16). The appellant stopped the car,
came out and saluted the said two companions. c
Then he took them to the Saudi Consultate and
Maker Tower. At about 1:30 p.m., they visited the
Stock Exchange Building where he parked the car
in the parking lot. lrfan got down earlier, while Salim
got down at the parking place. On objection being D
raised by the watchman, A-16 took the vehicle out
of the parking lot.

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

(xvi) On 12.03.1993, he was paid Rs. 5,000/- by Javed
Chikna who handed over to him a white F
Ambassador Car to park it at the spot near Air
India Building which was earlier surveyed by them.
He also took one pistol and rounds from Javed
which he hid in his shirt.
G
(xvii) A-16, who was wearing a white Safari Suit, took the
Ambassador Car and left it near the Bank of Oman
near Air India Building.

(xviii) At that time, he was picked up by /rfan Chougu/e
along with Salim Rahim Shaikh (A-52), who was in H
526 SU,PREME COURT REPORTS [2013] 15 S.C.R.

A a blue coloured Maruti Car and he was, thereafter,
dropped at Sachivalaya (Secretariat).

(xix) He handed over the pistol and rounds
(ammunitions) to A-52.
B
(xx) He was taken by Usman in a Maruti 800 Car to
Sena Bhavan Junction where Usman parked the
car at the nearby Petrol Pump.

(xxi) In the evening, he told Bashir (A-13) that he had
c parked one vehicle near Air India Building which
caused the blast.

(xxii) Next day, he came to know that the Memon's
Building (Al Hussaini) was raided by the Police.

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

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

G Confessional Statements of other co-accused:

409. A perusal of the above confession by the accused
shows that the appellant was playing a key role in furtherance
of the abovesaid conspiracy. The other accused, in their
H confessions under Section 15 of TADA have also discussed
YAKUB ABDUL RAZAK MEMON v. STATE OF 527
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J]

the role played by A-16 in the conspiracy. The confessions of A
the co-accused persons are as follows:-

Confessional Statement of Asgar Yusuf Mukadam (A-10)

Confessional statement of A-10 under Section 15 of
TADA has been recorded on 23.04.1993 (18:00 hrs.) by Shri B
Krishan Lal Bishnoi (PW-193), the then DCP, Zone Ill, Bombay.
The said accused has stated that the appellant (A-16) along
with Parvez Nazir Ahmed Shaikh (A-12) and Salim Rahim
Shaikh (A-52) left for Dubai on 10/11 th February, 1993 when
he (A-16) was picked up along with the said two associates C
by A-10 from Midland Hotel and were dropped at the Airport
This statement corroborates with the confession of the
appellant, who too had stated that he went to Dubai on
10.02.1993.
D
Confessional Statement of Shahnawaz Abdul Kadar
Qureshi (A-29)

Confessional statement of A-29 under Section 15 of
TADA has been recorded on 18.05.1993 (18:30 hrs.) and on
21.05.1993 (14:45 hrs.) by Shri Krishan Lal Bishnoi (PW-193), E
the then DCP, Zone 111, Bombay. The said accused referred to
the role of the appellant (A-16) as follows:

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

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

Confessional Statement of Zakir Hussain Noor G
Mohammed Shaikh (A-32)

Confessional statement of A-32 under Section 15 of
TADA has been recorded on 16.05.1993 (1125 hrs.) and
19.05.1993 (1730 hrs.) by Krishan Lal Bishnoi (PW-193), the H
528 SUPREME COURT REPORTS [2013] 15 S.C.R.

A then DCP, Zone 111, Bombay. The said accused referred to the
role of the appellant (A-16) as follows:

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

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

(iii) During his stay in Pakistan, A-16 was renamed as
'Faizal' and the accused were not allowed to use
their actual names.
c (iv) On 03.03.1993, Farooq, Parvez, Salim Mujahid,
Salim Dandekar, lrfan and A-32 left Dubai at 1 p.m.
and came to Bombay.

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

Confessional Statement of Feroz @ Akram Amani Malik
(A-39)
G
Confessional statement of A-39 under Section 15 of
TADA has been recorded on 19.04.1993 (22:30 hrs.) and on
23.04.1993 (20:50 hrs.) by Mr. P.O. Pawar (PW-185), the then
DCP, Zone V, Bombay. The said accused referred to the role
H of the appellant (A-16) as follows:
YAKUB ABDUL RAZAK MEMON v. STATE OF 529
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]

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

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

The confessional statement of A-39 establishes that the
conspirators were well aware of the motive of the conspiracy
and had become a part of it and were also fully aware of the
consequences of their actions. The training which was imparted C
to them was for the purpose of causing destruction in Bombay.
It is conclusively established from this confession that all the
accused who went for training in Pakistan were fully aware of
the conspiracy and its motive.
D
Confessional Statement of Nasim Ashraf Sherali Barmare
(A-49)

Confessional statement of A-49 under Section 15 of
TADA has been recorded on 16.05.1993 (09:30 hrs.) and on
18.05.1993 by Shri Krishan Lal Bishnoi (PW-193), the then E
DCP, Zone 111, Bombay. The said accused referred to the role
of the appellant (A-16) and said that A-16 joined him with his
assumed name as 'Faizal' in Pakistan and received training
in using pistols, AK-56 rifles, machine guns, hand grenades,
ROX, detonators, pencil timers etc. F

Confessional Statement of Salim Rahim Shaikh (A-52)

Confessional statement of A-52 under Section 15 of
TADA has been recorded on 15.04.1993 and on 18.04.1993
by Mr. P.D. Pawar (PW-185), the then DCP, Zone V, Bombay. G
The said accused also referred to the involvement of the
appellant (A-16) in the conspiracy at various stages. From the
statement of A-52, the following facts emerge regarding the
appellant which are as follows:
H
530 SUPREME COURT REPORTS [2013] 15 S.C.R.

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

(ii) On 12.02.1993, he along with others stayed in a
building opposite to Hotel Al-Khaleez where Tiger
Memon met them.
B
(iii) On 13.02.1993, he along with the appellant
attended the meeting in the same building in which
Javed Chikna and Tiger Memon talked about the
communal riots of Bombay and Gujarat
c
(iv) On 14.02.1993, he along with other accused left
Dubai and reached Islamabad where they were
taken to the training camp and were given training
in firing arms, handling LMG rifles, throwing of hand
D grenades, use of ROX, detonators and timer
pencils. He further stated as follows:

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

(v) A-52 also stated that they were told about 'black
soap named ROX'.

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

"Tiger also came there on the seventh day of our
training. He also took training. He told all of us
"Take good training, you have to do good work in
H Bombay as per this training." During the last two
YAKUB ABDUL RAZAK MEMON v. STATE OF 531
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

days, the training of hand grenades with weight, A
without weight and with detonators was given. We
were also told about black soaps named ROX.
Time pencil was also shown. The red coloured
pencil used to burst in 15 minutes and the white
coloured pencil used to burst in one hour and the B
green coloured pencil used to burst in 2 and a half
hours. We threw that pencils by using detonators."
(Emphasis supplied)

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

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

(viii) On 03.03.1993, he along with the appellant and
other co-accused left Dubai and reached Bombay.
E
(ix) After returning from Dubai, on the 3rd day, the
conspirators met at the house of Babloo. All those
who received training in Pakistan were present in
the meeting. In this meeting, it was decided that the
blasts in Bombay would be caused after Ramzan. F

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

(xi) On 11.03.1993, at night, A-16 along with other co- G
accused was present in the garage of the Al-
Hussaini building, i.e. at the residence of Tiger
Memon where the vehicles were loaded with ROX
for causing bomb blasts.
H
532 SUPREME COURT REPORTS [2013] 15 S.C.R.

A This confession further proves the fact of training in
Pakistan and that the accused went to Pakistan via Dubai. It
also proves the extent of training that was given. The taking of
oath on holy Quran has also been proved. It also establishes
the motive of the conspirators which was to cause destruction
B and havoc in achieving their ultimate goal. He also stated about
the meetings that took place at the house of Babloo and at a
flat in Sandra after the conspirators returned from Dubai. He
also proved that the appellant (A-16) was present in the Al
Hussaini Building when the vehicle bombs were being
c prepared.
Confessional Statement of Shaikh Ali Shaikh Umar (A-57)

Confessional statement of A-57 under Section 15 of
TADA has been recorded on 19.04.1993 (12:00 hrs.) by Shri
D Krishan Lal Bishnoi (PW-193), the then DCP, Zone Ill, Bombay.
A-57 went to meet Javed Chikna on 08/09.02 .1993 at the Soda
Factory. He said that at that time, Usman, Nasir, Farooq and
some other people were also present there. This incident was
related to meeting before the landing at Shekhadi.
E
Confessional Statement of Nasir Abdul Kadar Kewal @
Nasir Dhakla (A-64)

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

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

(ii) On the way to Shekhadi, the accused stopped at a
place where ·Abdul Gani had brought a black
coloured bag which contained five AK-47/AK-56
H
I
'

YAKUB ABDUL RAZAK MEMON v. STATE OF 533
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

rifles, revolver, magazines and cartridges. A

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

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

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

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

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

Confessional Statement of Md. Rafiq Usman Shaikh (A-
94)

Confessional statement of A-94 under Section 15 of H
534 SUPREME COURT REPORTS (2013] 15 S.C.R.

A TADA has been recorded on 14.05.1993 (18:30 hrs.) and on
16.05.1993 by Krishan Lal Bishnoi (PW-193), the then DCP,
Zone 111, Bombay. The said accused referred to the role of the
appellant (A-16) as follows:

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

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

(iii) A-16 also told A-94 that he had parked the white
Ambassador Car which was laden with ROX/
explosives at Air India Building.
D
(iv) A-94 and A-16 were arrested by the police. A-94,
in his confession stated that the police had come
to his house along with the appellant.

Confessional Statement of Niyaz Mohammed @ Aslam
E Iqbal Ahmed Shaikh (A-98)

Confessional statement of A-98 under Section 15 of
TADA has been recorded on 17.05.1993 (14:30 hrs.) and on
20.05.1993 (11 :30 hrs.) by Krishan Lal Bishnoi (PW-193), the
F then DCP, Zone l!I. Bombay. The said accused referred to the
role of the appellant (A-16) as follows:

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

"The training included P.T. and exercise from 7:00-
H 8:00 hrs and from 9:00 a.m. to 1 :00 p.m.
YAKUB ABDUL RAZAK MEMON v. STATE OF 535
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

dismantling, reassembling and manner of firing of A
pistols AK-56 rifles, LMG etc. After 3-4 days, seven
boys had also joined whose names were Javed
Chikna alias Ali, Usman alias Nasir, Farooq alias
Faizal, Zabir alias Shakir, Salim alias Mujahid,
Parvez alias Qureshi and Salim Driver alias lrfan. B
They had their training together with us .....

During the training period they also gave the
training in hand grenades, ROX, detonators, safety
fuse, Electric Detonators and Timer Pencil. They. C
told us on black-board about making of a bomb by
using ROX. After 1-2 days there came a bearded
person with Ahmedbhai. All the other boys were
calling that bearded man as Tiger. He got the
details of the training for 2 days."
D
(ii) On 01.03.1993, after reaching Dubai, A-16, who
had gone for training at the instance of Tiger took
an oath by placing his hands on Quran. A speech
was given by Tiger regarding the riots in Bombay
and about taking revenge. E

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

Confessional Statement of Mohd. Parvez Zulfikar Qureshi
(A-100) G

Confessional statement of A-100 under Section 15: of
TADA has been recorded on 15.04.1993 (23:30 hrs.) and on
17.04.1993 (17:00 hrs.), by Sanjay Pandey (PW-492), the then
H
536 SUPREME COURT REPORTS [2013] 15 S.C.R.

A DCP, Zone VIII, Bombay. The said accused referred to the role
of the appellant (A-16) as follows:

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

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

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

(iv) He was present at the residence of Tiger Memon
in the night of 11112.03.1993 alongwith other co-
accused when the explosives were being filled in
E the vehicles which were brought for the said
purpose.

410. From the confessional statements made by different
co-accused, the following facts emerge:
F
(i) A-16 had gone for training in handling weapons and
explosives to Pakistan via Dubai along with other
accused.

(ii) A-16 was given fake name as 'Faizal' which was
G used in Pakistan while training.

(iii) A-16 was fully aware of the conspiratorial design
and the plan to cause blasts and destruction in the
city of Bombay at a large scale;
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 537
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

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

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

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

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

(viii) A-16 had taken oath on holy Quran that he would
c
cause destruction and loss to the Hindu community
as a revenge for what had happened on
06.12.1992 (demolition of Babri Masjid) and in the
riots that ensued;
D
(ix) A-16 was responsible for taking the explosives
laden vehicle to the Air India Building and the Shiv
Sena Bhawan (Lucky Petrol Pump) and causing
death and destruction.
E
From the above, it can easily be inferred that A-16 was
fully aware and conscious of the fact that their actions were of
such a nature that they had to keep the conspiracy a secret and
the activities done by them were grave. Taking of oath on Quran
shows their intent and determination to cause damage and
F
destruction. Their sole aim was to terrorise the people of the
country by causing massive and extensive damage to the
financial capital of the country and to destabilize the
Government of India. From the above confession, it is evident
that he had no trace of remorse for the actions committed by G
him. The very fact that when the appellant fled from Bombay,
he also suggested A-94 to do the same which shows their
incriminating post incident conduct. Hence, it is clear that the
appellant was well aware of the consequences of his action and
played an important role in the conspiracy. We have already
H
538 SUPREME COURT REPORTS [2013] 15 S.C.R.

A held that a voluntary and truthful confessional statement
recorded under Section 15 of TADA requires no corroboration.

Retracted Confessions:

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

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

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

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

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

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

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

H (v) On 10.02.1993, the appellant went to Hotel Persian
YAKUB ABDUL RAZAK MEMON v. STATE OF 539
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
Darbar along with Tiger Memon. A

(vi) The appellant (A-16) also accompanied the
approver and other co-accused to Pakistan for
training in handling of arms and ammunitions and
explosives. B
(vii) In the training, they were taught how to operate and
use AK-56 rifles, pistols, hand grenades and use
of ROX for preparing bomb. They were explained
that the ROX could be used for exploding and
blowing off the bridges, trains, dams etc. They c
were also shown timer pencils, detonators of
different colours which could ignite ROX bombs
from a period of half an hour to five hours and were
told how to use them. In the evening time, classes
were held and they were explained things on black 0
board and were also instructed about rocket
launcher but were not given firing practice of the
same.

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

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

(x) A-16 was present in the meeting at the residence
o(Tiger Memon at Al Hussaini Building on 11 /
12.03.1993.
G
(xi) PW-2, along with the appellant, took the white
coloured Maruti 800 car (laden with ROX) and
parked it near the Shiv Sena Bhawan/Lucky Petrol
Pump.

(xii) A-16 had altercations with a Hawaldar (Constable) H
540 SUPREME COURT REPORTS [2013] 15 S.C.R.

A as well as with an employee of the Lucky Petrol
Pump regarding the parking of the said car. This
fact has been corroborated by the testimony of the
prosecution witness.

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

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

G 414. He also participated along with other co-conspirators
in loading the explosives like ROX fitted with time device
detonators in various vehicles during preparation of vehicle
bombs in the intervening night between 11/12th March, 1993.
He surveyed and conducted reconaissence of the Stock
H Exchange Building and Air India Building on 10.03.1993 for

_,
YAKUB ABDUL RAZAK MEMON v. STATE OF 541
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

causing explosions there. Therefore, it is established that the A
appellant was well aware of the conspiracy right from the
inception and also of the consequences of his acts.

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

Other Witnesses

Deposition of lshwar Haralkar (PW-11)

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

(i) PW-11 refused to allow the driver to park the car F
there as it had not come for servicing in the station.
There was an altercation between PW-11 with the
person (A-16) sitting next to the driver. Ultimately,
PW-2 parked the said car towards the direction of
Shiv Shahi Chawl at the side of petrol pump and G
left it there. After half an hour, PW-11 heard the
sound of a big explosion and saw that the said
Maruti Car had exploded. He noticed that there was
fire and massive damage to the vehicles standing
nearby. The cement roof of the service station blown
H
542 SUPREME COURT REPORTS [2013] 15 S.C.R.

A up and fell on him. He was injured and went to the
doctor. He noticed complete damage to the service
station and the petrol pump.

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

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

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

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

"My statement recorded on 12.03.1993 was read over and
explained to me after it came to be recorded and found
that it was correctly recorded. (The attention of the witness
is drawn to his statement dated 12.03.1993). In my
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 543
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
statement recorded by the Police on 12.03.1993 there is A
no mention of the height of the person who was sitting by
the side of the driver. I cannot assign any reason why it is
not recorded. According to me the colour complexion of a
person would be important in describing him. In case of
the person whom I noticed sitting by the side of the driver B
in the Maruti Car on 12.03.1993, his colour complexion
was important feature and not his shortness."

Therefore, in view of the above statement, the witness was
conscious of the fact that the height was not recorded in the C
earlier statement. It was submitted from the side of the
prosecution that for identifying the accused, it was not his height
which was important but it was his colour and complexion which
was important.

419. The witness has further deposed that the statement D
was read over to him and he found it to be correct. It cannot
be contended by the appellant that merely because the height
of the accused was not mentioned in the earlier statement, the
witness is unreliable. PW-11 has, in fact, identified the accused
A-16 and therefore his testimony is reliable. It was further E
contended on behalf of the appellant that since PW-11 was an
injured witness, the doctor who treated him should have been
examined and his non-examination would result in discrediting
the witness.
F
420. The witness has given accurate description of the
accused and the approver has identified them. The testimony
of the witness is corroborated by the evidence given by the
accused, the approver and other witnesses. It is also mentioned
in his statement that he did not suffer any bleeding injuries.
Since the witness was not seriously injured, there was no need G
for him to be admitted in a hospital and for the Investigating
Officer to examine any doct.or in this regard. Hence, the
contention of the appellant is without any basis.

H
544 SUPREME COURT REPORTS [2013] 15 S.C.R.

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

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

(i) Around 2 p.m., PW-12 had an altercation with A-
16 who was sitting next to the driver (PW-2) of white
coloured Maruti Car with regard to the parking of
car near Shiv Sena Bhawan. The driver (PW-2) took
C the car away from there and ultimately parked it
near the compound wall of service station after
some discussion with an employee of the Lucky
Petrol Pump. After parking the vehicle, both A-16
and PW-2 left the place.
D
(ii) He further deposed that after sometime an
explosion occurred and there was lot of smoke in
the area and many vehicles and buildings were
damaged.
E (iii) PW-12 identified PW-2 and A-16 in the
identification parade dated 23.05.1993 conducted
by SEM Moreshwar Thakur (PW-469) who
prepared the memorandum Panchnama Exh. 1519
for the same.
F
(iv) The witness also identified the appellant (A-16) in
the Court.

It was submitted by the counsel for the appellant that this
witness has deposed that A-16 had an altercation with him
G regarding parking of car. Thereafter, he saw them talking to an
employee of the Lucky Petrol Pump. After some time, the
person sitting next to the driver got down from the car. Here
again, it was contended that A-16 was not there until the car
was parked and so he was not responsible for the blast that
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 545
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]
took place at the Lucky Petrol Pump. In view of the above, it is A
contended that even though he did not finally park the car, his
intention was to cause the blast and he got down from it only
because of the altercation. A-16 was an equal participant in the
planting of the car at the place of the blast.
B
421. Learned counsel for the appellant has placed para
No. 5 in which the accused has been identified by the witness
and paragraph No. 8 where the distinguishing marks on the
face of the accused have been described by the witness. This
supports the case of the prosecution that the eye-witness has
correctly identified the accused and, therefore, the accused can C
be placed at the scene of crime on the date and time of the
incident. However, the counsel has not pointed out par~ No. 312
from the statement of PW-2 which reads as "I told Farooq
Pawale to get down and go ahead and engage a Taxi for us,
as stated in my evidence before the Court." It is thus D
established that the testimony of the witness is reliable and also
the fact that the accused had gone to the site of the explosion
along with PW-2 in the car in which the explosion took place.
The evidence given by PWs 11 and 12 corroborate the
evidence given by the accused himself and the approver. E

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

Deposition of Jagannath B. Patil (PW-668)
G
PW-668 was a Police Officer who visited the said Petrol
Pump after the blast in the presence of two panch witnesses
Sudhakar Kadam and Kallapa. He drew a panchnama and
seized ten Articles, viz., Articles 549-A (colly) to 558-A (colly)
in and around the site of explosion. These articles included H
546 SUPREME COURT REPORTS [2013] 15 S.C.R.

A burnt pieces of tar, burnt pieces of wood and mud from the ditch
created due to the explosion. PW-668 also collected samples/
Articles vide Panchnama Exh. 2460 in the presence of Panch
Witness Kiran Padhrinath Deshmukh (PW-666). A Panchnama
was prepared in respect of articles taken by the Assistant
s Chemical Analysers from the site of the blast near Shiv Sena
Bhavan in Dadar.

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

PW-669 was the person who sent articles like burnt pieces
C of bones, skull, branches of trees, etc. to the FSL for its opinion
and has also deposed about the injuries to the persons and
the deaths of the persons on account of explosion at Lucky
Petrol Pump. The reports sent by the FSL confirm the traces
of ROX which were present in the objects collected from the
o scene of the blast.
Deposition of Fazal Fruitwala (PW-363)

PW-363 was a Car Broker. In July, 1990, Salim Abdul
Gani Gazi (AA) had approached him for purchasing a new white
E coloured Maruti 800 car. PW-363 inquired with Shakil Hasam
of Auto Links. He informed Salim Gani that the car was
available. As asked by Shakil Suleman on 12.07.1990, the
delivery order was taken from Mis Sai Service Station. The car
was in the name of the original purchaser Sultan Ali. On the
F same day, at 7 p.m., Salim Gani had paid Rs. 1,40,000/-
inclusive of brokerage. PW-363 had asked Salim Gani to take
delivery from Daman Stockyard. After deducting the brokerage, •
PW-363 sent the price of the car to Shakeel Hasam. The
vehicle, i.e., the white Maruti Car used for the explosion was
G purchased by Salim Abdul Gani Gazi (AA) in July, 1990 through
PW-363 and Shakeel S. Hasam (PW-366). The car was given
Registration No. MH-03-A-2143. The registration of the car was
done under a fictitious name which is proved by the evidence
of PW-329 who was a postman in the concerned locality.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 547
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]

Deposition of Sadanand S. Paradkar (PW-329) A

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

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

Injured Witnesses:
F
423. It was pointed out that around 50 people suffered
injuries due to the explosion which took place at the Shiv Sena
Bhawan/Lucky Petrol Pump.

The following witnesses have deposed about the injuries G
suffered by them on account of the explosion at the Lucky Petrol
Pump on 12.03.1993:

(i) Sudhir Shankar Chandrorkar (PW-408) -
sustained bleeding injuries due to the pieces of iron
which had pierced into his body at various places. H
548 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (ii) Lallan S. Pandey (PW-409) - suffered various
bleeding injuries and his left leg had to be
amputated from the thigh region, and

(iii) Ankush K. Sawant - (PW-308) - suffered
bleeding injuries due to striking of plastic splinter
B
on his left thigh.

The following doctors have deposed with respect to the
injuries suffered by the aforestated injured witnesses:

c (i) Dr. Vijay Madhav Deshmukh - (PW-631) - He
is the person who prepared the Medical Certificate
for PW-408.

(ii) Dr. sunil Raghunath Rai - (PW-633) - He is the
person who prepared the Medical Certificates for
D PWs 409 and 308.

The said witnesses (doctors) proved to have issued the
medical certificates Exh. 2348 in respect of the above
mentioned injuries.
E
The following claimants have claimed the dead bodies of
their son (Shri John Thomas) and cousin sister (Smt. Mamta
Surendra Pilankar) respectively who died on account of the
explosion at Lucky Petrol Pump:
F (i) Thomas ltiyavira Modabamkunnel - (PW-427)
and;

(ii) Nitin Vasant Parkar - PW-410

G Four persons died in the blast that took place at Shiv Sena
Bhawan. Kishore L. Sawant PW-568 - has prepared the
Accidental Death Reports (ADRs) in respect of the two
deceased persons.

(ii) Exh. 1967 - ADR No. 19/93 in respect of death of
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 549
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, JJ
Smt. Marnia Surendra Pilankar, cousin sister of Shri A
Nitin Vasant Parkar (PW-410).

(iii) Exh. 1971 - ADR No. 42/93 in respect of death of
Shri John Thomas, son of Shri Thomas ltiyavira
Modabamkunnel (PW-427).
B
The doctors who prepared the Death Report Certificates
in respect of the deceased are:

(i) Dr. Walter G. Vaz (PW-476) - prepared the death
certificate of John Thomas son of Thomas ltiyavira c
Modabamkunnel (PW-427);

(ii) Dr. Anand P. Desai (PW-477) - prepared the
death certificate of Marnia Surendra Pilankar who
was the cousin sister of Nitin V. Parkar (PW-410).
D
The articles seized from the scene of the blast that took
place at Shiv Sena Bhawan were sent to the Forensic Science
Laboratory for opinion vide Exh. 2447 and Exh. 2469. The FSL
Reports received in respect of the said letters are Exh. 2447-
A and Exh. 2448. The reports prove that the articles found at E
the scene contained traces of Highly Explosive substance
'RDX'. It was further found that the clothes were stained with
human blood and had traces of RDX as well. The aforesaid
evidence establishes the fact that the appellant planted the
vehicle bomb at the site of the explosion and massive damage F
was caused to life and property due to his actions.

Witnesses regarding the incident at the Air India Building:

Deposition of Vilas Vyankatesh Kulkarni (~W-10)
G
424. He is an eye-witness to the incident. He deposed with
respect to the explosion at Air India Building and the
Ambassador car which exploded causing damage.

(i) He was the owner of MAFCO Farm Fair Shop. On
H
550 SUPREME COURT REPORTS [2013] 15 S.C.R

A 12.03.1993, at about 12 noon, while going to his
shop, he noticed a white coloured ambassador car
bearing No. MH -9622 parked abutting the footpath
and opposite to the footpath at the rear gate of Bank
of Oman. In the tunnel, the driver alighted from the
B car and locked it. He stood ne"ar the car and at the
same time noticed another Contessa Car entering
the tunnel from the eastern side in reversed
position.
(ii) He also saw a blue coloured Maruti-800 car
c stopped 5 to 6 feet away from him and the person
sitting by the side of the driver called the driver of
the white coloured Ambassador. They then left
together in a blue coloured Maruti 800 car.
(iii) Around 2:40 to 2:45 p.m., PW-10 reported hearing
D
a deafening sound from the Air India Building. He
saw the white Ambassador car 5 to 6 feet up in the
air. He also noticed black smoke rising from the
tunnel and heard falling of glass pieces. After 15
minutes, he saw a big crater formed at the place
E where the white coloured Ambassador Car was
parked.
(iv) He also reported that many people were injured and
died in the said incident. His shop was also badly
F damaged and his employees, viz., Ganesh and
Joginder sustained minor injuries.
(v) He identified A-16 in the identification parade dated
09.04.1993 conducted by the SEM (PW-462) and
again he identified A-16 in the identification parade
G dated 14.05.1993 conducted by the SEM PW-469.
(vi) He also identified the photographs of the appellant
which were marked as Article Nos. 7 and 8 in the
parade dated 15.06.1993 conducted by SEM PW-
469.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 551
MAHARASHTRA, THR CBI, BOMBAY (P. SATHASIVAM, J.)
425. It was submitted by the counsel for the appellant (A- A
16) after reading paragraph Nos. 7, 8 and 14 of his deposition
that witness was not able to identify the accused even after
giving more chances to identify the accused. It was furher
contended that there being only one eye-witness, who also
could not identify the accused, hence, there is no other eye-· B
witness in the case. It is pointed out that the witness had wrongly
identified A-16. It is submitted that the witness understood his
mistake and informed that he had wrongly identified the
accused. It is relevant to mention that the incident took place
on 12.03.1993 and the identification was held in the court on c
11.10.1995, i.e., after a period of two years, and therefore, the
witness could not identify A-16. This cannot be taken to
discredit the other facts which have been accurately described
by him. The witness had identified the appellant when the
parade was conducted by the SEM, however, it is only due to
D
lapse of time that he could not identify the accused again.

Deposition of Fuldas Yadav Bhoye (PW-321)

PW-321 was a PSI with Cuffe Parade Police Station at
the time of the incident. He deposed regarding the damage E
caused to life and property at the scene of the blast. He
deposed as follows:

(i) On 12.03.1993, at 3 p.m., he along with Pl
Chaudhary and other staff had been to the Air India
Building. He found two cars burning in front of the
F
Bank of Oman. ·

(ii) He further stated in his deposition that the entire
atmosphere was surrounded with dense smoke
and a crater of size Bx7 feet had been created in G
the porch.

(iii) The flooring of the first underground floor also had
a similar crater and the second underground floor
H
552 SUPREME COURT REPORTS [2013) 15 S.C.R.

A was visible through the craters that had been
formed.

(iv) The building of the Bank of Oman had been fully
destroyed and there was substantial damage to the
B offices of Air India, Mauritius and Singapore
Airlines.

(v) He further deposed that three cars bearing
registration numbers BLL-904, MH-01-M-5039 and
BLN-2933 and motor taxi bearing registration no.
c MMT-3075 were completely burnt, leaving behind
only the chassis.

(vi) The cars parked on the porch of Air India building
were also damaged.
D
(vii) Six dead bodies were removed and sent to the JJ
Hospital with the help of firemen.

(viii) The injured were taken to GT Hospital and the
Bombay Hospital.
E
Deposition of N. Venkatramni (PW-376)

He was the Engineer-in-charge of Air India Building
situated at Nariman Point, Bombay. He found that there was
F extensive damage caused to Air India Building after the blast
that occurred in front of the said building. He along with other
engineers inspected the site. They appointed specialized
valuers 'M/s Sunil Vora & Associates' for ascertaining the
damage caused to the building. The valuers visited the building
in April 1993 and gave a report estimating the damage to be
G to the tune of Rs. 1 crore 51 lakhs.

Deposition of Abbas Husseini Rangwala (PW-377)

He was working with the Bank of Oman at the time of the
H incident. He deposed as folk'"•r
YAKUBABDUL RAZAK MEMON v. STATE OF 553
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]
(i) On 12.03.1993, at 2.40 p.m., he heard a big sound A
like bomb explosion and the ceiling and glass
panels fell down. The furniture was damaged,
computers worth Rs. 10 lakhs were damaged, air
conditioning system was totally damaged and two
vehicles belonging to the bank which were parked B
in the tunnel were fully damaged causing loss of Rs.
6 lakhs.

(ii) The bank lost about Rs. 2 lakhs 96 thousand due
to sudden interruption in banking operations.
c
(iii) Twelve employees of the bank were injured, out of
which 2 ladies succumbed to death. In addition, 3-
4 customers of the Bank were also injured. Three
persons from RBI sustained injuries and later
succumbed to death. D
(iv) The Bank appointed M/s Bhatavedekar & Co.,
specialised 'valuers, to ascertain the damage
caused. The report of the valuers assessed the
damage to be to the tune of Rs. 50 lakhs.
E
Other witnesses:

426. The number of injured people in the blast which took
place at the Air India Building was 84 and 20 people had died
in the said incident. The following injured persons have F
deposed as witnesses who were present inside the Air India
building when the blast took place:

(i) Purshottam Narhar Karmarkar (PW-404)

(ii) Madhav Pundalik Patkar (PW-405) G
(iii) Sadashiv Gopal Pendse (PW-407)

Their deposition may be summarized as under:

(i) At 2.45 p.m., while waiting for lift in the lobby of Air H
554 SUPREME COURT REPORTS [2013] 15 S.C,R.

A India building, they heard the sound of a big
explosion which was followed by a black out.

(ii) The false ceiling of the lobby collapsed and fell on
them.

B (iii) PW-404 sustained injury in his leg.

(iv) PWs 405 and 407 sustained multiple injuries from
splinter glasses also. They were frightened and
immediately left the building.
c (v) Glass splinters pierced on the right side of the body
of PW-405 who was later admitted in Bombay
Hospital and discharged on 18.03.1993. PW-404
and PW-407 were admitted in the casualty ward of
JJ Hospital and were later shifted to the Hinduja
D Hospital. PW-404 was discharged on 22/23rd
March, 1993 and 3-4 days after that PW-405 was
discharged.

The testimonies of these witnesses proves the fact that the
E impact of the blast was massive, causing exponential loss to
life and property. These people were present at the scene of
the incident and received injuries due to the blast which
occurred at the Air India Building. The people inside the building
were also hurt by the blast and huge loss was caused to the
F property.

Deposition of Dr. Sanjay Rajendra Agarwala (PW-653)

He was the doctor at Hinduja Hospital and deposed
regarding the injuries sustained by PW-404 who was admitted
G in the said hospital on 13.03.1993. He deposed that the victim
had seven to eight injuries; his major injuries included a fracture
of left elbow sustained in bomb blast occurred on 12.03.1993.
He had to be operated on and was treated and discharged on
24.03.1993. He was again admitted on 02.05.1993 and was
H discharged on 05.05.1993 after treatment and removal of
YAKUB ABDUL RAZAK MEMON v. STATE OF 555
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J]
foreign body 'granuloma' from the ring finger of his right hand A
and the metacarpel region of neck.

Deposition of Dr. Rajaram Amrut Bhalerao (PW-646)

He was the doctor at Hinduja Hospital and has deposed
regarding PW-407 who was brought to the casualty centre of B
the said hospital on 13.03.1993. He deposed that the injured
was having one major injury towards right side of the neck and
multiple abrasions on the neck and face and had suffered loss
of blood.
c
Deposition of Dr. Rajkumar Patil (PW-635)

He was the doctor at Bombay Hospital and has deposed
regarding PW-405. He deposed that the injured witness was
brought to the Bombay Hospital on 12.03.1993 and examined D
by one Dr. Gupta. He was admitted in a place where
arrangements were made for victims of bomb blasts that had
occurred at the Bombay Stock Exchange, Air India Building and
Zaveri Bazaar. Dr. Patil reported that PW-405 had been treated
at the hospital and was discharged on 19.03.1993.
E
Depositions of Sandeep Prakash Bafna (PW-194) and
Prakash Sanchalal Bafna (PW-247)

At the relevant time, both were working with Hindustan
Motors and Hero Honda Motors respectively. In the month of
F
January, 1993, Gulam Rasool (A-58) of Ujjain (M.P.) had taken
the delivery of an Ambassador car for Rs. 1,84,466/- from
Hindustan Motors whose temporary Registration No. was MH-
20-TR-622. This booking was made through 'Sulebhai'
(Suleman .Lakdawala (PW-365)) of Petrol Pump at Byculla and G
Shakeel Suleman of Auto Links. PW-194 (dentified the
photograph (Article 377-A) of Gulam Rasool in the identification
parade held at Police Head Quarters conducted by SEM Sbri
Vichare (PW-24 7) and also identified the photograph (Article
382-B) in an identification parade held at the office of DCB,
CID conducted by SEM PW-469. Thus, the place.from where H
556 SUPREME COURT REPORTS [2013] 15 S.C.R.

A the car was purchased was located and the witness identified
the person who had bought the car.

Deposition of Suleman Lakdawala (PW-365)

PW-365 deposed that Shafi Zariwala (AA) told him that
B he required three new Commander Jeeps bearing Registration
Number of Gujarat State during February/March 1993. PW-365
contacted Shakeel Suleman Hasham, who informed that the
cars with Registration No. of Madhya Pradesh were available.
Shafi (AA) agreed to buy those cars. Suleman Lakdawala also
C arranged for one white ambassador car for Shafi. This would
further be established by the evidence of PW-366.

Deposition of Shakeel Suleman Hashan (PW-366)

In his deposition, he stated that he (PW-366) introduced
0
PW-365 with the car agency by name 'Kailash Agencies'. PW-
365 taken the said car from the said agency and delivered it
to Shafi Zariwala (AA).

Deposition of Mukhtar lmdad Ahmed PW-281
E
PW-281 deposed that he had been asked by Shafi (AA}
to prepare cavities in between the rear seat and fuel tank of
the white Ambassador car bearing Registration No. MH-20-
TR-622. It is pointed out that it was this car which was used to
F cause the explosion outside the Air India building. It is further
pointed out that all these witnesses prove that the car which
was used by the appellant for the blast was bought by the other
co-accused. It has been established that Shafi Zariwala was a
close associate of Tiger Memon. The depositions of these
witnesses establish the link between all the evidence leading
G to the appellant (A-16) and the incident of explosion that took
place on 12.03.1993.

Deposition of Ashok Budhavale (PW-614)

H PW-614 was working in the Worli Police Station as an API
YAKUB ABDUL RAZAK MEMON v. STATE OF . 557
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
in the year 1993. It was contended that the police officer did A
not remember whether he had made entries in the station
diaries while taking the accused out for TIP and while bringing
them back. It was also contended that his senior officer Pl
Pharande had not given him any written orders for taking the
accused out of the custody and so the TIP is vitiated as the B
procedure was not followed. It is relevant to note regarding the
entries to be made in the diary that the officer had deposed
that he did not recollect whether he had made the entry or not
and with respect to the communication between the API and
the Pl, it is pointed out that the API had received oral C
instructions from his superior and there was no requirement of
any written orders. ·

Deposition of Madhukar Baburao Gathade (PW-535)

In the year 1993, he was attached as a Pl with DCB, CID, D
Unit IX. In his deposition, he mentioned that· he did not
remember as to how many letters of sanctions were sent to him
by the District Magistrate. The counsel for the appellant
submitted that he did not grant any sanction a/"ld even if he did,
the sanction was not granted on due application of mind by the E
District Magistrate. It is pointed out that the deposition of the
witness was made on 06.12.1999, i.e., six and a half years
after the incident. It is not possible for all the witnesses to
remember all the details of all the events that took place during
the trial. It is further submitted that the investigating officer had
F
written a letter to the District Magistrate explaining the
circumstances in which his sanction was sought to prosecute
under the provisions of the Explosive Substances Act.

Deposition of Ramalingam Nadar (PW-349)
G
PW-349 acted as a panch witness in the search that was
conducted at the house of A-16. It was submitted by the counsel
for the appellant that the witness dicj not know English and the
statement and panchnama were recorded in English and the
driving licence was also in the English language. It is pointed H
558 SUPREME COURT REPORTS [2013] 15 S.C.R.

A out that the witness deposed that the document was explained
to him in Hindi and he found the contents to be true. The
contention of the counsel for the appellant stands negatived.

Deposition of Nagesh Lahar (PW-356)

B PW-356 was working with Unit-I of DCB, CID and went to
the house of A-16 when the search was made. It was submitted
by the counsel for the appellant that no personal search of the
members of the raiding party was conducted by the panch
witness when they went to search the house of A-16. The
C witness deposed that a personal search was conducted;
however, he did not record it in the panchnama due to oversight.
He deposed that he did not realize that it had to be recorded
till the time he was questioned for it.

D Deposition of Rajan Dhoble (PW-585)

In the year 1993, he was attached with DCB, CID, Unit-I
as a PL The counsel for the appellant submitted that the same
person was acting as a witness in investigation taking place
at two places of incident, i.e., Air India Building and the Stock
E Exchange and, hence, was not a reliable witness. It is pointed
out by the other side that there is no prohibition that a Police
Inspector cannot investigate two matters at the same time.

Evidence of Witness regarding the incident at the Stock
F Exchange:

Deposition of Ashok Kamble (PW-24)

427. PW-24 was a Security Guard at the Bombay Stock
Exchange Building. He is an eye-witness to the incident. His
G deposition revealed that on 10.03.1993, the appellant along with
other accused persons had entered the Stock Exchange
Building for parking the said red coloured Maruti 1000 car. PW-
24 identified A-16 in the Court at the time of his deposition as
well as in the TIP dated 11.05.1993 and 08.06.1993 conducted
H by SEMs PW-458 and PW-469 respectively. In view of the
YAKUB ABDUL RAZAK MEMON v. STATE OF 559
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J]

above, it was submitted that the deposition of PW-24 A
establishes that the appellant had been to the Stock Exchange
·Building prior to the blasts for the purpose of surveying the
targets.

Deposition of Brijmohan Mehra (PW-458) B
PW-458 was the SEM who conducted the TIP with regard
to the accused A-16 for PW-24. It was submitted by the counsel
for the appellant that the SEM was neither aware of the
guidelines nor he had seen the Rules framed by the High Court
of Judicature of Bombay regarding the precautions to be taken C
by a person conducting the TIP. It is relevant to note that the
Government of Maharashtra had not issued as such any
guidelines but had given the draft memorandum for Identification
Parade. Therefore, it is established that the procedure which
was required to be followed was known to the SEM and he had D
conducted it in accordance with the same.

428. A perusal of the entire evidence above establishes
the guilt of the appellant (A-16). The confession of the appellant
gives the detail of all the important events that took place during
E
the time when the conspiracy was in its nascent stage. The
appellant (A-16) was involved in the landing of arms and
ammunitions and explosives; he went to Pakistan for training
in using arms and making explosives; attended crucial
conspiratorial meetings; went to survey the targets; was also
F
present in the meeting when the targets were being finalized;
and in addition to all these actions, he planted explosives laden
vehicles at two locations and went to survey the third location.

429. All these events have been narrated by the co-
accused also and the presence of the appellant has been G
narrated in the confessions of many co-accused including the
ones who were an integral part of the plan. The evidence given
by the approver and eye-witnesses also corroborate the fact
that the appellant had planted explosives at two locations and
had surveyed the third place. H
560 SUPREME COURT REPORTS (2013] 15 S.C.R

A 430. The evidence of the approver, the eye-witnesses,
experts and other witnesses above clearly establish the
involvement of A-16 in the explosions that took place at the
Stock Exchange building, Air India building and the Shiv Sena
Bhawan. It is established that A-16 was an active member of
B the conspiracy which led to the blasts at various places in
Bombay and caused many deaths, injuries and loss to property.

431. The evidence given by the doctors and the family
members of the deceased show the extent of suffering that was
C inflicted by A-16 and the other accused in pursuance of the
conspiracy. The quantity of RDX that was used in the blasts
clearly shows and establishes the fact that the blasts were
intended to tear the economic, moral and social fabric of the
nation and to induce communal tensions. The involvement of
the appellant in the entire conspiracy establishes the critical role
D played by him in the blast.

432. In view of the above said confessional statement of
the appellant (A-16), the confessional statements of other co-
accused persons, as also the eye-witnesses along with other
E witnesses duly examined, the prosecution has produced
sufficient evidence against the appellant to bring home the
charges framed against him.

TERRORISM:

F 433. The term "terrorism" is a concept that is commonly
and widely used in everyday parlance and is derived from the
Latin word "Terror" which means the state of intense fear and
submission to it. There is no particular form of terror, hence,
anything intended to create terror in the minds of general public
G in order to endanger the lives of the members and damage to
public property may be termed as a terrorist act and a
manifestation of terrorism. Black's law dictionary defines
terrorism as "the use of threat or violence to intimidate or cause
panic, esp. as a means of affecting political conduct" (8th
H edition, page 1512).
YAKUB ABDUL RAZAK MEMON v. STATE OF 561
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.)

434. Terrorism is a global phenomenon in today's world A
and India is one of the worst victims of terrorist acts. Terrorism
has a long history of being used to achieve political, religious
and· ideological objectives. Acts of terrorism can range from
threats to actual assassinations, kidnappings, airline hijackings,
bomb scares, car bombs: building explosions, mailing of B
dangerous materials, computer-based attacks and the use of
chemical, biological, and nuclear weapons-weapons of mass
destruction (WMD).

435. The fight against terrorism requires a concerted and
multifaceted strategy at both the domestic and international c
levels and should involve a legal order which itself needs to be
updated and elaborated upon and should hence be turned into
a practical tool. There exist several domestic and international
legislations to counter terrorism. The Terrorist and Disruptive
Activities (Prevention) Act, 1985 (Act 31 of 1985) which D
received the assent of the President on May 23, 1985 and was
published in the Gazette of India, Extra., Part 11, Section 1,
dated May 23, 1985, came into force on May 24, 1985 in the
whole of India f9r a period of two years. The Statement of
Objects and Reasons of the said Act reads as follows: E

"Prefatory Note - St-atement of Objects and
Reasons.- Terrorists had been indulging in wanton
killings, arson, looting of properties and other heinous
crimes mostly in Punjab and Chandigarh. Since the 10th F
May, 1985, the terrorists have expanded their activities to
other parts of the country, i.e. Delhi, Haryana, Uttar
Pradesh and Rajasthan as a result of wliich several
innocent lives have been lost and many suffered serious
injuries. In planting of explosive devices in trains, buses G
and public places, the object to terrorise, to create fear and
panic in the minds of citizens and to disrupt communal
peace and harmony is clearly discernible. This is a new
and overt phase of terrorism which requires to be taken
serious note of and dealt with effectively and expeditiously.
H
562 SUPREME COURT REPORTS [2013] 15 S.C.R.

A The alarming increase in disrup_tive activities is also a
matter of serious concern."

436. The Bill as introduced sought to make provisions for
combating the menace of terrorists and disruptionists, inter alia,
B to-

(a) provide for deterrent punishment for terrorist acts and
disruptive activities;

(b) confer on the Central Government adequate powers to
c make such rules as may be necessary or expedient for the
prevention of, and for coping with, terrorist acts and
disruptive activities; and

(c) provide for the constitution of Designated Courts for the
speedy and expeditious trial of offences under the
D proposed legislation.

437. The said Act No. 31 of 1985 was due to expire on
May 23, 1987 and in order to combat and cope with terrorist
and disruptive activities effectively and to strengthen it further,
E the Terrorist and Disruptive Activities (Prevention) Act, 1987
(Act 28 of 1987) was enacted. Since both the Houses of
Parliament were not in session and it was necessary to take
immediate action, the President promulgated the Terrorist and
Disruptive Activities (Prevention) Ordinance, 1987 (2 of 1987)
F on May 23, 1987 which came into force w.e.f. May 24, 1987.
However, this Act repealing the Ordinance, received the assent
of the President of India on September 3, 1987 and was
published in the Gazette of India, Extra., Part II, Section 1,
dated September 3, 1987. The scheme of the Act 31of1985
G and Act 28 of 1987 as reflected from their preambles is the
same. The scheme of the special provisions of these two Acts
were/are "for the prevention of, and for coping with, terrorist and
disruptive activities and for matters connected therewith or
incidental thereto".

H
YAKUB ABDUL RAZAK MEMON v. STATE OF 563
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]

International Conventions A

438. There also exist several International Conventions,
which aim to suppress terrorism and define terrorist acts. The
League of Nations took the initiative to formulate the first Global
Convention on Preventing Terrorism and, accordingly, adopted B
the 1937 Convention for the Prevention and Punishment of
Terrorism, which defined "acts of terrorism" as:

"Criminal acts directed against a State and intended or
calculated to create a state of terror in the minds of
particular persons, a group of persons or the general C
public."

439. More recently, several International Conventions and
Multilateral Agreements have been entered into by States to
curb global terrorism. The International Convention for the D
Suppression of Terrorist Bombings, 1997 defines the offence
of "terrorist bombing" as follows:

"Article 2.1 - Any person commits an offence within the
meaning of this Convention if that person unlawfully and
intentionally delivers, places, discharges or detonates an E
explosive or other lethal device in, into or against a place
or public use, a State or government facility, a public
transportation system or an infrastructure facility:

a) With the intent to cause death or serious bodily injury; F
or

b) With the intent to cause extensive destruction of such a
place, facility or system, where such a destruction results
in or is likely to result in major economic loss."
G
440. The United Nations Security Council in its 2004
Resolution denounced "terrorist acts" as follows:

"criminal acts, including against civilians. committed with
H
564 SUPREME COURT REPORTS [2013] 15 S.C.R

A the intent to cause death or serious bodily injury, or taking
of hostages, with the purpose to provoke a state of terror
in the general public or in a group of persons or particular
persons, intimidate a population or compel a government
or an international organization to do or to abstain from
B doing any act, which constitute offences within the scope
of and as defined in the international conventions and
protocols relating to terrorism, are under no circumstances
justifiable by considerations of a political, philosophical,
ideological, racial, ethnic, religious or other similar nature."
c India's Contribution in Combating Terrorism
441. India has played a major part in strengthening
international consensus against terrorism in UN, Non-Aligned
Movement (NAM) and South Asian Association for Regional
D Cooperation (SAARC). India is a party to major international
conventions against terrorism and has also incorporated them
in domestic legislation. These conventions and treaties
condemn terrorist acts and expressly state the grave concern
posed by terrorism.
E
Terror Attacks

442. Another trend common to both national and
international terrorism is the emergence of terrorist groups
motivated by religious fanaticism. Whenever the perpetrators
F are motivated by religious fanaticism or had secular goals and
beliefs, they become susceptible to the idea of sacrificing their
own life for carrying out the will of God, or Allah or in waging a
'holy war'. It is important to note here that terrorism is abhorred
and condemned by all the religions of the world. Terrorists
G conduct planned and coordinated attacks targeting innocent
civilians with a view to infuse terror in the minds of people. India,
particularly, has been a victim on several occasions. An
indicative list of recent terrorist attacks on India as furnished
by learned senior counsel for the CBI is provided below:
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 565
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J_J

s. Date of Place of Attack No. of No. of A
No. Attack Bomb Persons
Blasts killed
1. 12.03.1993 Bombay 13 257
2. 14.02.1998 Coimbatore 13 46 B
3. 13.12.2001 New Delhi - 9
4. 25.09.2002 Akshardham - 29
5. 06.12.2002 Mumbai - 2
(Ghatkopar) c
6. 25.08.2003 Mumbai - 50
(Zaveri Bazaar)
7. 29.10.2005 Delhi 3 60
8. 11.07.2006 Mumbai - 209 D
(Local trains)
9. 25.08.2007 Hyderabad 2 42
10. 23.11.2007 Lucknow, - 18
Varanasi,
Faizabad E
11. 13.05.2008 Jaipur 9 63
12. 25.07.2008 Bangalore 9 2
13. 26.07.2008 Ahmedabad 21 56
14. 13.09.2008 Delhi 5 30
F
15. 26.11.2008 Mumbai . - 172
16. 13.02.2010 Pune - 17
17. 13.07.2011 Mumbai 3 26
G
18. 07.09.2011 Delhi (outside 1 12
Delhi High Court)
19. 13.02.2012 Delhi (Israeli Injured Persons
Embassy Official's 4
car) H
566 SUPREME COURT REPORTS [2013) 15 S.C.R.

A 443. Terrorist attacks are not only limited to India but
several terrorist attacks have also been taken place in
countries around the world. Following is a list of select terrorist
attacks outside India:

s. Date of Place of Attack No. of No. of
B No. Attack Bomb Persons
Blasts killed

1. 11.09.2001 NY and 4 Nearly
Washington DC, 3000
c USA

2. 12.10.2002 Bali, Indonesia 3 202

3. 11.03.2004 Madrid, Spain 10 191
D
4. 07.07.2005 London, England 4 52

Supreme Court oflndia on Terrorism:
444. The Supreme Court of India has also explained the
E term 'terrorism' in a series of cases. Provided below are
summaries of key cases on terrorism. In Hitendra Vishnu
Thakur & Ors. vs. State of Maharashtra & Ors., (1994) 4 SCC
602, one of the key questions for consideration of this Court
was in relation to the applicability of Section 3(1} of TADA. This
F Court held that while offences mentioned in Section 3 of TADA
may overlap with offences mentioned in other statutes, a charge
under Section 3 should be made where the offence was
committed with the intention as envisaged in Section 3. This
Court further observed:
G
"7. 'Terrorism' is one of the manifestations of increased
lawlessness and cult of violence. Violence and crime
constitute a threat to an established order and are a revolt
against a civilised society. 'Terrorism' has not been
defined under TADA nor is it possible to give a
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 567
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

precise definition of 'terrorism' or lay down what A
constitutes 'terrorism'. It may be possible to describe
it as use of violence. when its most important result
is not merely the physical and mental damage of the
victim but the prolonged psychological effect it
produces or has the potential of producing on the B
society as a whole. There may be death, injury, or
destruction of property or even deprivation of
individual liberty in the process but the extent and
reach of the intended terrorist activity travels beyond
the effect of an ordinary crime capable of being c
punished under the ordinary penal law of the land
and its main objective is to overawe the Government
or disturb harmony of the society or "terrorise"
people and the society and not only those directly
assaulted, with a view to disturb even tempo, peace D
and tranquillity of the society and create a sense of
fear and insecurity. A 'terrorist' activity does not merely
arise by causing disturbance of law and order or of public
order. The fall out of the intended activity must be such that
it travels beyond the capacity of the ordinary law
E
enforcement agencies to tackle it under the ordinary penal
law. Experience has shown us that 'terrorism' is
generally an attempt to acquire or maintain power or
control by intimidation and causing fear and
helplessness in the minds of the people at large or
any section thereof and is a totally abnormal F
phenomenon ..... " (emphasis supplied)

445. Girdhari Parmanand Vadhava vs. State of
Maharashtra, (1996) 11 SCC 179 relates to kidnapping of a
boy for ransom and on non-payment of the same, the accused G
persons tortured and killed the boy. The Designated Court
convicted the accused and awarded life sentence. While
adjudicating the appeal, it was contended by counsel for the
accused persons before this Court that kidnapping is not a
terrorist activity within the meaning of the provisions of TADA. H
568 SUPREME COURT REPORTS [2013] 15 S.C.R.

A This Court, while affirming the conviction and that the offence
committed was a terrorist act, held as under:

"39. A crime even if perpetrated with extreme brutality may
not constitute "terrorist activity" within the meaning of
Section 3(1) of TADA. For constituting "terrorist
B
activity" under Section 3(1) of TADA, the activity must
be intended to strike terror in people or a section of
the people or bring about other consequences
referred to in the said Section 3(1 ). Terrorist activity
is not confined to unlawful activity or crime
c committed against an individual or individuals but it
aims at bringing about terror in the minds of people
or section of people disturbing public order, public
peace and tranquillity, social and communal
harmony, disturbing or destabilising public
D administration and threatening security and integrity
of the country .....

..... It is the impact of the crime and its fallout on the
society and the potentiality of such crime in
E producing fear in the minds of the people or a
section of the people which makes a crime, a terrorist
activity under Section 3(1) of TADA. In our view, in the
facts of the case, the learned Designated Judge has rightly
convicted the accused for offences under Section 3(1) of
F TADA besides convicting each of them under Section 120-
B and Section 302 read with Section 120-B of the IPC."

(emphasis supplied)

446. In State through Superintendent of Police, CBI/SIT
G vs. Nalini & Ors., (1999) 5 SCC 253, this Court, while
adjudicating the convictions of several accused persons in the
case for assassination of Mr. Rajiv Gandhi, former Prime
Minister of India, spelt out the ingredients of an offence under
Section 3(1) of TADA as follows:
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 569
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J]

"650 ....... A perusal of the provision (Section 3(1 )); A
extracted above, shows that it embodies the principle
expressed in the maxim "actus non facit reum, nisi mens
sit rea"; both "mens rea" and a criminal act ar!l the
ingredients of the definition of "terrorist act". The
mens rea required is the intention (i) to overawe the B
Government as by law established; or (ii) to strike
terror in the people or any section of the people; or
(iii) to alienate any section of the people; or (iv) to
adversely affect the harmony amongst different
sections of the people. The actus reus should comprise c
of doing any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances o.r
firearms or other lethal weapons or poisons or noxious
gases or other chemicals or by any other substances
(whether biological or otherwise) of a hazardous nature in
D
such a manner-as to cause, or as is likely to cause, death
of, or injuries'to, any person or persons or loss of, or
damage to, or destruction of, property or disruption of any
supplies or services essential to the life of the community,
or detaining any person and threatening to kill or injure
such persons in order to compel the Government or any E
other person to do or abstain from doing any act."

(emphasis supplied)

447. In Mohd. Khalid vs. State of West Bengal, (2002) 7 F
SCC 334, while affirming the decision in appeal, this Court held
that it is difficult to define terrorism in precise terms and
acknowledged that terrorism is a threat to global peace and
security. This Court further observed as under:

"42 ......... It is not possible to define the expression G
'terrorism' in precise terms. It is derived from the word
'terror'. As the Statement of Objects and Reasons leading
to enactment of the TADA is concerned, reference to the
Terrorist and Disruptive Activities (Prevention) Act, 1985
(hereinafter referred to as the 'Old Act') is necessary. It H
570 SUPREME COURT REPORTS [2013] 15 S.C.R.

A appears that the intended object of the said Act was to
deal with persons responsible for escalation of terrorist
activities in many parts of the country. It was expected that
ii would be possible to control the menace within a period
of two years, and life of the Act was restricted to the period
B of two years fro the date of its commencement. But
noticing the continuance of menace, that too on a larger
scale TADA has been enacted. Menace of terrorism is
not restricted to our country, and it has become a
matter of international concern and the attacks on the
c World Trade Center and other places on 11th
September, 2001 amply show it. Attack on the
Parliament on 13th December, 2001 shows how grim
the situation is, TADA is applied as an extreme measure
when police fails to tackle with the situation under the
ordinary penal law. Whether the criminal act was
D
committed with an intention to strike terror in the people
or section of people would depend upon the facts of each
case."

(emphasis supplied)
E
448. Nazir Khan & Ors. VS. State of Delhi, (2003) 8 sec
461 pertains to prosecution of accused persons involved in
kidnapping of foreign nationals and killing of police officers
during combat. While the mastermind of this terrorist operation
f' was subsequently released by the government in exchange for
passengers held as hostages in the hijacked Indian Airlines
Flight IC 814, the other accused persons were tried for offences
punishable under the IPC and TADA. This Court, while hearing
their appeals, challenging the judgment of Designated TADA
G Court, which had awarded death and life sentences to certain
accused persons, made detailed observations about the nature
of terrorist activities and attempted to define terrorism and l;leld
as under:

"13 .... As noted at the outset, it is not possible to
H precisely define "terrorism". Finding a definition of
YAKUB ABDUL RAZAK MEMON v. STATE OF 571
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J.]

"terrorism" has haunted countries for decades. A first A
attempt to arrive at an internationally acceptable definition
was made under the League of Nations, but the convention
drafted in 1937 never came into existence. The UN
Member States still have no agreed-upon definition.
Terminology consensus would, however, be necessary for B
a single comprehensive convention on terrorism, which
some countries favour in place of the present twelve
piecemeal conventions and protocols. The lack of
agreement on a definition of terrorism has been a major
obstacle to meaningful international countermeasures. c
Cynics have often commented that one State's "terrorist"
is another State's "freedom fighter". If terrorism is defined
strictly in terms of attacks on non-military targets, a number
of attacks on military installations and soldiers' residences
could not be included in the statistics. In order to cut D
through the Gordian definitional knot, terrorism expert A.
Schmid suggested in 1992 in a report for the then UN
Crime Branch that it might be a good idea to take the
existing consensus on what constitutes a "war crime" as
a point of departure. If the core of war crimes - deliberate
E
attacks on civilians, hostage-taking and the killing of
prisoners - is extended to peacetime, we could simply
define acts of terrorism as "peacetime equivalents of war
crimes". (emphasis added)

-~1-4.. League of Nations Convention (1937): F
~-----
"All criniliial acts directed against a State along with
intended or calculated to create a state of terror in the
minds of particular persons or a group of persons or the
general public."
G
(GA Res. No. 51/210: Measures to eliminate international
terrorism)

1. Strongly condemns all acts, methods and practices of
terrorism as criminal and unjustifiable, wherever and by H
572 SUPREME COURT REPORTS [2013] 15 S.C.R.

A whomsoever committed.

2. Reiterates that criminal acts intended or calculated to
provoke a state of terror in the general public, a group of
persons or particular persons for political purposes are in
any circumstances unjustifiable, whatever the
B
considerations of a political, philosophical, ideological,
racial, ethnic, religious or other nature that may be invoked
to justify them.

3. Short legal definition proposed by A.P. Schmid to the
c United Nations Crime Branch (1992):

Act of Terrorism = Peacetime Equivalent of War Crime

4. Academic Consensus Definition:

D "Terrorism is an anxiety-inspiring of repeated violent action,
employed by (semi-) clandestine individuals, groups or
State actors, for idiosyncratic, criminal or political reasons,
whereby - in contrast to assassination - the direct
targets of violence are not the main targets. The immediate
E human victims of violence are generally chosen randomly
(targets of opportunity) or selectively (representative or
symbolic targets) from a target population, and serve as
message generators. Threat-and violence-based
communication processes between terrorist (organization),
F (imperilled) victims, and main targets are used to
manipulate the main target [audience(s)], turning it into a
target of terror, a target of demands, or a target of attention,
depending on whether intimidatio"n, coercion, or
propaganda is primarily sought." (Schmid, 1988)
G Definitions

15. Terrorism by nature is difficult to define. Acts of
terrorism conjure emotional responses in the victims
(those hurt by the violence and those affected by the fear)
H as well as in the practitioners. Even the US Government
YAKUB ABDUL RAZAK MEMON v. STATE OF 573
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

cannot agree on one single definition of uniform and A
universal application. The old adage, "One man's terrorist
is another man's freedom fighter'' is still alive and well.
Listed below are several definitions of terrorism used by
the Federal Bureau of Investigation:
B
Terrorism is the use or threatened use of force designed
to bring about political change. Brian Jenkins

Terrorism constitutes the illegitimate use of force to
achieve a political objective when innocent people are
targeted. Walter Laqueur c
Terrorism is the premeditated, deliberate, systematic
murder, mayhem, and threatening of the innocent to create
fear and intimidation in order to gain a political or tactical
advantage, usually to influence an audience. D
James M. Poland

Terrorism is the unlawful use or threat of violence against
persons or property to further political or social objectives.
It is usually intended to intimidate or coerce a government, E
individuals or groups, or to modify their behavior or politics.
Vice-President's Task Force, 1986

Terrorism is the unlawful use of force or violence against
persons or property to intimidate or coerce a government,
F
the civilian population, or any segment thereof, in
furtherance of political or social objectives.

FBI definition"

(emphasis supplied) G

449. In Madan Singh vs. State of Bihar, (2004) 4 SCC
622 this Court upheld the conviction and sentence awarded by
the Designated Court in respect of accused persons who had
killed several police officers in combat. While affirming that the
offence committed was rightly charged under Section 3 of H
574 SUPREME COURT REPORTS [2013] 15 S.C.R.

A TADA, this Court observed in detail in respect of terrorist
activities and held as follows:

"19. Terrorism is one of the manifestations of increased
lawlessness and cult of violence. Violence and crime
constitute a threat to an established order and are a revolt
B
against a civilised and orderly society .....

. . . ..It may be possible to describe it as use of violence
when its most important result is not merely the physical
and mental damage of the victim but the prolonged
c psychological effect it produces or has the potential of
producing on the society as a whole. There may be death,
injury, or destruction of property or even deprivation of
individual liberty in the process but the extent and reach
of the intended terrorist activity travels beyond the effect
D of an ordinary crime capable of being punished under the
ordinary penal law of the land and its main objective is to
overawe the Government or disturb the harmony of the
society or "terrorise" people and the society and not only
those directly assaulted, with a view to disturb the even
E tempo, peace and tranquillity of the society and create a
sense of fear and insecurity."

450. In People's Union for Civil Liberties and Anr. vs.
Union of India, (2004) 9 SCC 580, the constitutional validity
of various provisions of the Prevention of Terrorism Act, 2002
F ("POTA") were challenged. While upholding the constitutionat
validity of POTA, this Court discussed domestic and
international authorities on terrorism and observed that:

"6. In all acts of terrorism, it is mainly the
G psychological element that distinguishes it from other
political offences, which are invariably accompanied
with violence and disorder. Fear is induced not
merely by making civilians the direct targets of
violence but also by exposing them to a sense of
H insecurity ..... .
YAKUB ABDUL RAZAK MEMON v. STATE OF 575
MAHARASHTRA, THR CBI, BOMBAY [P. SATHASIVAM, J.]
8. All these terrorist strikes have certain common features. A
They could be very broadly grouped into three:

1. Attack on the institution of democracy, which is the very
basis of our country (by attacking Parliament, Legislative
Assembly etc.). And the attack on economic system by
8
targeting economic nerve centres.

2. Attack on symbols of national pride and on security/
strategic installations (e.g. Red Fort, military installations
· and camps, radio stations etc.).
c
3. Attack on civilians to generate terror and fear psychosis
among the general populace. The attack at worshipping
places to injure sentiments and to whip communal
passions. These are designed to position the people
against the Government by creating a feeling of insecurity. 0
9. Terrorist acts are meant to destabilise the nation
by challenging its sovereignty and integrity, to raze
the constitutional principles that we hold dear, to
create a psyche of fear and anarchism among
common people, to tear apart the secular fabric, to E
overthrow democratically elected government, to
promote prejudice and bigotry, to demoralise the
security forces, to thwart the economic progress and
development and so on. This cannot be equated
with a usual law and order problem within a State. F
On the other hand, it is inter-State, international or cross-
border in character. Fight against the overt and covert acts
of terrorism is not a regular criminal justice endeavour.
Rather, it is defence of our nation and its citizens. It is a
challenge to the whole nation and invisible force of G
lndianness that binds this great nation together. Therefore,
terrorism is a new challenge for law enforcement. By
indulging in terrorist activities organised groups or
individuals, trained, inspired and supported by
fundamentalists and anti-Indian elements are trying to H
576 SUPREME COURT REPORTS [2013] 15 S.C.R.

A destabilise the country. This new breed of menace was
hitherto unheard of. Terrorism is definitely a criminal act,
but it is much more than mere criminality. Today the
Government is charged with the duty of protecting the unity,
integrity, secularism and sovereignty of India from
B terrorists, both from outside and within the borders. To face
terrorism we need new approaches, techniques; weapons,
expertise and of course new laws. In the abovesaid
circumstances Parliament felt that a new anti-terrorism law
is necessary for a better future. This parliamentary resolve
c is epitomised in POTA.

451. Terrorism is a major problem that is reoccurring over
the globe in many different forms. In short, terrorism is a plague
for a nation or society that should be eradicated. There is a dire
need to best deal with it and to make sure to take preventive
actions so that other groups and people are not motivated to
make themselves heard through various acts of terrorism. In our
considered view, the following procedures/rules must have to
be adopted while dealing with it:-

E (i) Better governance and law enforcement is the real
need of the hour.

(ii) We must formulate long term as well as short term
strategies to combat terrorism.

F (iii) More advanced technologies must be used for
communication among law enforcement agencies.

(iv) Fighting terrorism would require a long term
planning and sustained multi-dimensional action.
G
(v) There should be proper coordination between all
the agencies with high level of motivation and a
quick response system must be established to
tackle the menace immediately.

H (vi) Rule of Law must always be upheld and it is the duty
YAKUB ABDUL RAZAK MEMON v. STATE OF 577
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
of the constitutional authority to defend the life and A
limb of its subjects.

India being a secular State, such religious
fanaticism which resulted in such terrorist acts
should not be allowed to destroy the very basic B
structure of our Constitution. Unless every one of us
put our sincere efforts to fight terrorism, we will not
be able to curb this menace.

Role of Pakistan in the Blasts:
c
452. It is devastating to state that Pakistan being a
member of the United Nations, whose primary object is to
maintain international peace and security, has infringed the
recognized principles under international law which obligate all
states to prevent terrorist attacks emanating from their territory
0
and inflicting injuries to other states. This duty to prevent acts
of terrorism stems from the basic principle of sovereignty, which
entails both rights and obligations. Under the 'Universal
Neighbouring Principles', it is well established that the rights
of one state end where the territory of another state begins. An
obvious source of this obligation lies in Article 2(4) of the UN E
Charter, which embodies the customary law of "prohibiting
states from using or threatening to use force against another
state". A host-state that has the capability to prevent a terrorist
attack but fails to do so will inherently fail in fulfilling its duty
under Article 2(4) since terrorism amounts to force by definition. F

453. In the relevant scenario, the accused arrived in
Pakistan for training and they were received by ISi operatives
who took them out of the airport without observing any
immigration formalities. Meaning thereby, they had a green G
channel entry and exist in Pakistan. Another confession reveals
that they received training from the ISi officials themselves on
some occasions. These events unveil the tolerance and
encouragement shown by Pakistan towards terrorism.
H
578 SU!"REME COURT REPORTS [2013] 15 S.C.R.

A 454. An effective anti-terrorism campaign will require a
substantial strengthening of the international regime of state
responsibility. Presently, there are several documents adopted
under the aegis of the UN and various multilateral treaties
emphatically promote all states to work together urgently to
8 bring to justice the perpetrators, organizers or those harbouring
the perpetrators, organizers and sponsors will also be held
accountable.

455. In the light of the Para 2 of the UNSC Resolution No.
1373 adopted under Chapter VII of the UN Charter, every State
C has the following obligations to perform:-

(a) Every State should refrain from providing any form of
support, active or passive, to entities or persons involved
in terrorist acts, including by suppressing recruitment of
D members of terrorist groups and eliminating the supply of
weapons to terrorists.

(b) Take necessary steps to prevent the commission of
terrorist acts, including by provision of early warning to
other States by exchange of information.
E
(c) Deny safe haven to those who finance, plan, support,
or commit terrorist acts, or provide safe heavens.

(d) Prevent those who finance, plan, facilitate or commit
F terrorist acts from using their respective territories for those
purposes against other States or their citizens.

(e) Every such person supporting terrorist acts should be
brought to justice and it must be ensured that, in addition
to any other measures taken against them, the punishment
G awarded duly reflects the seriousness of such terrorist
acts.

(f) Afford one another the greatest measure of assistance
in connection with criminal investigations or criminal
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 579
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
proceedings including assistance in obtaining evidence in A
their possession necessary for the proceedings.

(g) Prevent the movement of terrorists or terrorist groups
by effective border controls and controls on issuance of
identity papers and travel documents, and thorough
B
measures for preventing counterfeiting, forgery or
fraudulent use of identity papers and travel documents.

456. With regard to the facts available in the case at hand,
fhe role attributed by the neighbouring State can be
·summarized as under:- c
(1) A large number of convicted accused and
absconders have received training in making of
bombs by using ROX and other explosives,
handling of sophisticated automatic weapons like 0
AK-56 Rifles and handling of hand grenades in
Pakistan.

(2) A-92, A-95, A-108 and A-115 received weapons
training in Pakistan in January, 1993. During the
. same period, five absconding accused persons E
also received training in Pakistan. Confessional
statements of A-92, A-95, A-115 and A-134 prove
these facts.

(3) The arrangement for their training was made by F
Dawood Ibrahim (AA), Anees Ibrahim, Mohd.
Dossa, A-136 and Salim Bismillah Khan (since
deceased).

(4) PW-1 and PW-2 in their depositions before the
Court and A-16, A-29, A-32, A-36, A-39, A-49, A- G
52, A-64, A-77, A-94, A-98 and A-100 in their
confessional statements have stated that during
February 1993 the accused persons were sent, in
batches, from Bombay to Dubai and Dubai to
Islamabad, where they were given training by ISi/ H
580 SUPREME COURT REPORTS [2013] 15 S.C.R.

A Army Personnel in different camps.

(5) The above said persons were taken to Dubai from
where they were taken to Islamabad Airport and
were received by ISi operatives, who took them out
of the Islamabad Airport without observing any
B
immigration formalities after completion of training.

(6) No immigration formalities were observed when
they left Islamabad for Dubai.

c (7) Some of the passports seized during investigation
carry two arrival stamps of Dubai but the details of
their journey during the intervening period are not
reflected in the passports.

(8) Pakistan took precautions not to bring its
D involvement on record.

(9) A-58, A-88, A-109, A-114,'A-126, A-127, A-128, A-
129, A-130 and A-135 were taken to Dubai for
sending them to Pakistan but arrangements could
E not be made for their training in Pakistan. Hence,
they had to return from Dubai.

457. A careful reading of the confessional statements of
convicted accused exposes that large number of accused
F including the absconders received training in making of bombs
by using ROX and other explosives, handling of sophisticated
automatic weapons like AK-56 Rifles and handling of hand
grenades in Pakistan which was organized and methodically
carried out by Dawood Ibrahim (AA}, Anees Ibrahim, Mohd
Dossa and Salim Bismillah Khan (since deceased). The
G training received in Pakistan materialized in the unfortunate
serial blasts in Bombay, India on 12th March 1993. A
responsible state owes an obligation not only to another state
but also to the international community as a whole. We sincerely
hope that every State will strive towards the same.
H
YAKUBABDUL RAZAK MEMON v. STATE OF 581
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
Role of Police Officers: A

458. In· a civilized era, every country is governed by Rule
of Law and the primary concern of the Rule of law is promotion
of human rights of the people and protection of their civil,
political, social, economic and cultural rights. The Constitution B
of our country has entrusted substantial duty to the impartial
police department for safeguarding and upholding rule of law;
whose essential duty is to preserve peace and maintain order
in the society.

459. The role of police officials has become more vital in c
the present century owing to the frequent terror attacks occurring
across the country. Terrorism is spreading across the border
and there is increasing reliance on explosive devices to spread
terror. It is important to take note of inc;reasing use of explosive
devices by the terrorists not only because of their high damage D
potential but also due to their easy mobility. Explosive devices
can be manufactured, transported, handled and fitted with a
variety of unsuspecting objects multiplying their potential
manifold. Thus, the police have a specific and special role, a
duty and a responsibility, to curb the conveyance of explosives E
by vigilant patrolling and search and seizure, if required.
Section 20 of the Arms Act, 1959 empowers them to arrest
persons conveying any arms or ammunitions under suspicious
circumstances.
F
460. Unfortunately, in the present case the police officers
themselves have taken active part in sniu!:jgling and
transportation of arms and explosives in Bombay.

461. The twin duties of police are prevention of crime and
maintenance of law and order. If crimes are prevented in time, G
the human rights of the people will be protected to a large extent.
If the Bombay police officials had been able to curtail the
conveyance of the contraband in January and February 1993,
the occurrence of 12th March 1993 could have been avoided.
H
582 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 462. With regard to the facts and circumstances of the
case in hand, the role played by police personnel of different
ranks can be summarized as under:-

(1) A-116, who was Sub. Inspector lncharge of
B Shreevardhan Police Station and had jurisdiction
over Shekhadi and Dighi Jetty, where illegal
landings of arms and explosives took places and
7 Constables, viz., A-101, A-70, A-110, A-99, A-83,
A-84 and A-87, posted in the same Police Station,
connived and took active part in smuggling of arms
c and explosives at Dighi Jetty on 09.01.1993.

(2) Confessions of A-30, A-82, A-134 and A-136 as
also the depositions of PW-94, PW-97, PW-158,
PW-159, PW-160, PW-161, PW-162 and PW-167
D prove their role in the said landing and
transportation of smuggled arms etc.

(3) A-116, alongwith 7 Constables intercepted the
convoy carrying smuggled contraband, on the night
E of 09.01.1993. A-116 held negotiations with A-134
and A-136 with the help and assistance of A-30 and
Customs Officer Gurav (A-82) and permitted them
to proceed after retaining five silver bricks as
security against the payment of Rs. 10 lacs.
F (4) The bribe amount was paid later on, to A-116, who
released the five silver bricks ..

(5) The said bribe amount was distributed among all
the Police Personnel on two occasions to Mahasala
G Police Station, Shrivardan Police Station and Borali
Outpost.

(6) Substantial amounts have been seized from each
of the above noted Police Personnel during
investigation.
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 583
MAHARASHTRA, THR CBI, BOMBAY [P SATHASJVAM, J]

(7) A-14 and A-17, in their confessions, have also A
deposed about the payment of bribe amount to A-
116 for allowing the said landings.

463. As mentioned earlier, the police officials are the
foundation for the existence of the rule of Jaw; if they collapse
B
the whole system indeed breaks down. Hence, they have
sensitive responsibility to defend the safety and security of the
people at all times. Law empowers them with numerous powers
to prevent and control crimes like terrorism affecting internal
security. They should always remember that when they fail in
their duty they eventually fail the society as a whole. c
Role of Customs Officers:

464. The Customs officials primarily have a duty to prevent
smuggling and ensure that everything that enters into or goes
D
out of the country is brought or sent strictly in accordance with
the provisions of the Jaw for the time being in force. They are
entrusted with powers of search and seizure and conduct of on-
spot investigations. But when the officer of customs enters into
or acquiesces in any agreement to abstain from doing or
E
permits, conceals or connives at any act whereby any fraudulent
import is affected, it can have a disastrous effect on country's
security.

465. It is shattering to notice that all grades of customs
officers, including the Commissioners of Customs played an F
active role as members of conspiracy and implemented the
plan. Every kind of smuggling activity is devastating to the
economy, but the smuggling of dangerous arms and
ammunitions causes wreckage not only to the economy but also
to people's Jives. G

466. The occurrence of Bombay Bomb Blasts brings us
to the reality that such incidents take place along the Indian
coastline irrespective of the numerous laws and safeguards
provided due to the lack of moral ethics and misconduct on the
H
584 SUPREME COURT REPORTS [2013) 15 S.C.R.

A part of the officials.

467. Custom being a significant source of government
revenue, the officers of Customs Department must perform their
respective duties honestly and diligently. Any act or omission
B on their part can have devastating consequences. The role
played by the Customs Officers in pursuance of the conspiracy
can be summarized as under:-

(1) A-82, A-90, A-102, A-112 and A-113, who were the
Customs Officers at the relevant time in Bombay
c and Alibaug, have played an active role as
members of the conspiracy.

(2) A-112 attended a meeting with Mohd. Dossa (AA}
in Hotel President, Bombay about 6 to 8 months
D prior to the bomb blasts and discussed their
smuggling plans.

(3) Confessions of A-82, A-90 and A-113 as also
confessions of co-accused A-134, A-136, A-14, A-
17 and A-30 prove the role played by the Customs
E officers in the conspiracy.

(4) On 06.01.1993, A-102 and A-90, with some other
customs staff members, attended a meeting at
Hotel Parsian Darbar, Panvel with Mohd. Dossa
F (AA), A-134 and A-136, where the Customs
Officers agreed to charge Rs. 7 to 8 lacs from
Mohd. Dossa group for each landing.

(5) On 08.01.1993, A-102 and A-90 were informed by
A-134 and Firoz Abdul Rashid Khan that landing
G would take place in the night. [Firoz Abdul Rashid
Khan was absconding and has since been arrested
on 06.02.201 OJ

(6) A-82 played an important role in negotiations with
H Police Officers and A-11 R and seven (',-,nst""'~~
YAKUB ABDUL RAZAK MEMON v. STATE OF 585
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
when they intercepted the convoy carrying A
smuggled contraband on 09.01.1993. A-82 even
permitted A-30 to drive a customs jeep when they
went for negotiations.

(7) Collector Customs (PW-470), on receipt of
B
information from ORI, through a DO letter dated
25.01.1993, conveyed to all the Customs Officers
(accused) and others that the ISi Syndicates located
in Middle East may try to smuggle contrabands and
arms along with silver bricks in the districts of
Bombay, Raigarh and Thane and instructed them C
to be more vigilant. PW-470 also gave instructions
to A-112 and A-102 in this regard.

(8) PW-172, Customs Inspector, received information
of landing of silver at Mhasala on 29th, 30th and D
31st Jan. 1993. He conveyed this information to A-
112 for taking suitable action.

(9) A-112 deliberately kept a 'nakabandi' at the wrong
place i.e. Puranphata and Dehanphata leaving one
E
route open for the accused persons to carry the
smuggled arms and explosives without any check.

(10) When the subordinate Customs Officers suggested
to keep 'nakabandi' at proper place i.e. junction of
Sai Mobra-Mangaon Road and Mahasala- F
Goregaon Road, A-112 informed them that he had
specific information that Tiger Memon would bring
the contraband goods from that route only. PW-172
had not told A-112 that landing would be organized
by Tiger Memon. G
(11) Landing of arms and explosives did take place on
the night of 2nd and 3rd Feb. 1993. Tiger Memon
and other accused participated in the landing.

(12) When the landing was being done, PW-171 H
586 SUPREME COURT REPORTS [2013] 15 S.C.R.

A (another Addi. Collector of Customs) received
information about it and conveyed the same over
phone to A-112. On getting information from PW-
171, A-112 sent a misleading wireless message to
Marine & Preventive, Srivardhan to keep a vigil at
B Banko!, which is miles away from the place of
landing.

(13) When landing of arms and explosives was in
progress at Shekhadi on the night of 02.02.1993,
A-90 and A-82 reached the place of landing and
c met A-14 and Tiger Memon. They enquired from
Tiger Memon whether the landing was for weapons.
Tiger Memon replied in negative.

(14) Another landing took place on the night of 7th and
D 8th Feb. 1993. A large quantity of arms and
explosives were smuggled during this landing also.
Tiger Memon and other accused participated in this
landing.

(15) A-14, A-17 and A-30 have also spoken about the
E
payment of illegal gratifications to Customs Officers
for the landings.

468. From the above, it will not be an overstatement to
state that if not for the help of the customs officials, they would
F not be in a position to smuggle the weapons required for the
said blasts. A rationally structured and effective customs
department is the need of the hour in order to curtail illegal
imports which can have frightening ramifications upon the
nation's economy and citizens' security. Corruption among
G public servants indicates a failure of our system where pursuit
of personal gratification subdues public interest.

Lack of vigilance in the Indian Maritime Zone and
Indifference on the part of Coast Guards:

H 469. India being a maritime nation, the role of coast guards
YAKUB ABDUL RAZAK MEMON v. STATE OF 587
MAHARASHTRA, THR. CBI, BOMBAY [P SATHASIVAM, J]

is very vital for shielding the coast from external attacks. The A
coastal belt is surveyed by three teams of officers firstly, the
Indian Navy who is responsible for overall seaward security of
long coastline. Secondly, the coast guards who guard the
Exclusive Economic Zone (EEZ) in order to prevent poaching,
smuggling and other illegal activities in the EEZ. Lastly, the B
customs officials, who scrutinize and monitor every commodity
which enters the Indian boundaries.

4 70. This triple-layered security system is created primarily
to guard the Indian Coastline from maritime terrorism, piracy
and to keep out foreign intruders. Hence, it is the paramount
c
duty of all these officials to be vigilant, heedful and attentive to
each activity which occurs in the sea and on the shore. However,
the occurrence of Bombay Bomb Blasts on 12th March 1993
discloses the deficient performance of the officials.
D
471. Similarly, the Indian Coast Guard (ICG) was set up in
1978 as a paramilitary branch of the Indian Armed Forces
primarily for surveillance of the India's Exclusive Economic Zone
to prevent poaching, smuggling and other illegal activities in the
zone. The Coast Guards being the strongest link in the security E
chain are bound to be vigilant at sea and should .be in full
command of the coast.

472. For the same, they are empowered to search and
seize ships suspected of illegal activities. Besides, Section 14
F
of the Coast Guard Act, 1978 gives the ample scope for coast
guards to assist the customs and other authorities in anti-
smuggling operations necessary for protection of our long
coastline.

473. As the perception of war is changing we should not G
overlook the role and the significance of the coast guards and
the customs officials in combating terrorism. The role of the
coast guards is as important as any military troops. Only well
strategized coast guards and high morale customs officers can
H
588 SUPREME COURT REPORTS [2013] 15 S.C.R.

A prevent any opportunity for the terrorists to attack on our country
via our maritime boundary.

Quantum of Sentence:

474. After meticulous examination of confessional
B statements of the accused and the co-accused, the recoveries
made, and other evidences it establishes undoubtedly the guilt
of all the death convicts.

475. Before we deliberate and decide upon the role played
C by each of the appellants and their respective sentence, certain
reference to the contextual developments over the epochs with
regard to death sentence would be timely, which will assist us
in determining the sentence in this case.

Evolvement of Law Relating to Death Sentence:
0
476. The constitutional validity of the death sentence has
been brought under scrutiny from time to time to test the
rationality of the death sentence with the emerging civilization.
Though death penalty as a punishment is not abolished as yet,
E significant amendments have been brought in for limiting the
usage of the punishment. It is manifest from the bare reading
of judgments on death penalty from 1950 to till date that the
judiciary has always exercised its discretion in awarding this
extreme penalty with great circumspection, caution and
F restraint. The nature of this discretion bestowed on judges has
been considered and reflected in the most celebrated Bachan
Singh case (supra) in the following terms:-

" 165 .... Cognizant of the past experience of the
administration of death penalty in India, Parliament, in its
G
wisdom thoµght it best and safe to leave the imposition of
this gravest punishment in gravest cases of murder, to the
judicial discretion of the courts which are manned by
persons of reason, experience and standing in the
profession. The exercise of this sentencing discretion
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 589
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]

cannot be said to be untrammelled and unguided. Jt is A
exercised judicially in accordance with well-recognized
principles crystallized by judicial decisions, directed along
the broad contours of legislative policy towards the
signposts enacted in Section 354(3)."
B
The dictum in Bachan Singh case paraphrases that the duty
casted upon the judges in deciding the appropriate sentence
is a matter of judiciousness and not of law.

477. Earlier, Section 3(2) of the TADA Act, 1985 stipulated
mandatory death sentence for a terrorist act, which results in C
death. The challenge to this provision was mounted on the ratio
of Supreme Court decision in Mithu vs. State of Punjab, (1983)
2 SCC 277 in which their Lordships struck down Section 303
of the IPC as unconstitutional, which provided for compulsory
imposition of death sentence. As a result, the corresponding D
provision of TADA Act had also provided for the alternative
sentence of life imprisonment thus bringing the provision in line
with the provision of 302 of IPC. Section 3(2)(i) of TADA now
prescribes death or life imprisonment in alternative as the
penalty for a terrorist act. It is noticeable from the above E
transformation in the sentencing policy that the courts were
required upon to look into each and every case on its own
merits, to determine the appropriate sentence for the offender.

478. While so, the Code of Criminal Procedure signposts
F
the court as to its application. The changes, which the Code
has undergone in the last few decades, clearly indicate that
Parliament is taking note of contemporary criminological thought
and movement. For clarification, though TADA Act, 1987 is a
special act the application of the Code of Criminal Procedure
is permissible to the extent of its consistency with the act. G

479. The very first case where the constitutional validity of
capital punishment was vehemently discussed and decided
was in Jagmohan Singh VS. State of UP (1973) 1 sec 20.
This case was decided when the Code of Criminal Procedure, H
590 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 1898 (for short the old Code) was in force. Section 367(5) of
the old Code provided that if an accused person is convicted
of an offence punishable with death, but he is sentenced to a
punishment other than death, the Court was required to state
the reason why a sentence of death was not passed.
B
Section 367(5) of the old Code reads as follows:-

"If the accused is convicted of an offence punishable
with death, and the court sentences him to any
punishment other than death, the court shall in its
c judgment state the reason why sentence of death
was not passed."

Therefore, all the death penalty cases until 1973 were
decided according to the principle that death sentence was the
o rule and life imprisonment was the exception. However, after
the new Code of Criminal Procedure, 1973 which came into
force with effect from 1st April, 1974, the principle took a
converse turn and it was stated that imprisonment for life would
be the rule and a sentence of death was an exception.

E Amended section 354(3) of the Code reads as follows:-

"When the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or
imprisonment for a term of years, the judgment shall state
F the reasons for the sentence awarded, and, in the case of
sentence of death, the special reasons for such sentence."

The Code effectively reversed the position as it existed
under the old Code and also placed a rider that if a sentence
G of death is awarded, the court should record special reasons
for awarding the same. As an outcome, the discretion to
impose the sentence of death has been curbed to the extent
of stating the 'Special reasons'. Presently, judges are left with
the task of discovering the 'Special reasons'.

H 480. What are these 'Special Reasons' and does the
YAKUB ABDUL RAZAK MEMON v. STATE OF 591
MAHARASHTRA, THR CBI, BOMBAY [P SATHASIVAM, J.]

provisions of the Code help us in discovery of these special A
reasons? A reference to Bishnu Deo Shaw vs. State of West
Bengal (1979) 3 SCC 714 case would be helpful to understand
what actually are these special reasons refers to.

Justice Chinnappa Reddy penning the judgment said as
B
follows:

"26 .... Section 361 and Section 354(3) have both entered
the Statute Book at the. same time and they are part of the
emerging picture of acceptance by the Indian Parliament .
of the new trends in criminology. We will not, therefore, be C
wrong in assuming that the personality of the offender as
revealed by his age, character, antecedents and other
circumstances and the tractability of the offender to reform
must necessarily play the most prominent role in
determining the sentence to be awarded. Special reasons D
must have some relation to these factors."

It was further stated:

"27 Criminal justice is not a computer machine. It deals
with complex human problems and diverse human beings. E
It deals with persons who are otherwise like the rest of us,
who work and play, who laugh and mourn, who love and
hate, who yearn for affection and approval, as all of us do,
who think, learn and forget. Like the rest of us they too are
the creatures of circumstance. Heredity, environment, home F
neighbourhood, upbringing, school, friends, associates,
even casual acquaintances, the books that one reads,
newspapers, radio and TV, the economics of the
household, the opportunities provided by circumstances
and the calamities resulting therefrom, the success and G
failure of one's undertakings, the affairs of the heart,
ambitions and frustrations, the ideas and ideologies of the
time, these and several other ordinary and extra-ordinary
incidents of life contribute to a person's personality and
influence his conduct. Differently shaped and differently H
592 SUPREME COURT REPORTS [2013) 15 S.C.R.

A circumstanced individuals react differently in given
situations. A Judge has to balance the personality of the
offender with the circumstance, the situations and the
reactions and choose the appropriate sentence to be
imposed. A judge must try to answer a myriad questions
B such as was the offence committed without premeditation
or was it after due deliberation? What was the motive for
the crime? Was it for gain? Was it the outcome of a village
feud? Was it the result of a petty, drunken, street brawl, or
a domestic bickering between a hapless husband and a
c helpless wife? Was it due to sexual jealousy? Was the
murder committed under some stress, emotional or
otherwise? What is the background of the offender? What
is his social and economic status? What is the level of his
education or intelligence? Do his actions betray a
particularly callous indifference towards the welfare of
D
society or, on the other hand, do they show a great concern
for humanity and are in fact inspired by sum concern? Is
the offender so perpetually and constitutionally at war with
society that there is no hope of ever reclaiming him from
being a menace to society? Or is he a person who is
E patently amenable to reform? Well, may one exclaim with
Prof. Vrij "What audacity is involved in these three tasks :
to interpret life, explain an act, predict the latest inclination
of a human mind."

F 'Special reasons', we may, therefore say, are reasons
which are special with reference to the. offender, with
reference to constitutional and legislative directives and
with reference to the times, that is, with reference to
contemporary ideas in the fields of Criminology and
G connected sciences. Special reasons are those which
lead inevitably to the conclusion that the offender is beyond
redemption, having due regard to his personality and
proclivity, to the legislative policy of reformation of the
offender and to the advances made in the methods of
H treatment etc.
YAKUB ABDUL RAZAK MEMON v. STATE OF 593
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
481. In brief, Justice Reddy said that 'Special Reasons' A
necessary for imposing death sentence must relate, not to the
crime as such but to the criminal. In the same line of thought in
Rajendra Prasad vs. State of UP (1979) 3 SCC 646,' this
Court, by majority judgment, observed:

"83 .... 'Special reasons' necessary for imposing death B
penalty must relate, not to the crime as such but to the
criminal. The crime may be shocking and yet the criminal
may not deserve death penalty. The crime may be less
shocking than other murders and yet the callous criminal,
e.g. a lethal economic offender, may be jeopardizing C
societal existence by his act of murder. Likewise, a
hardened murderer or dacoit or armed robber who kills'
and relishes killing and raping and murdering to such an
extent that he is beyond rehabilitation within a reasonable
period according to current psycho-therapy or curative D
techniques may deserve the terminal sentence. Society
survive.s by security for ordinary life. If officers enjoined to
defend the peace are treacherously killed to facilitate
perpetuation of murderous and often plunderous crimes
social justice_ steps in to demand penalty dependent on the E
totality of circumstances."

482. Subsequent decision, Da/bir Singh and Ors. vs.
State of Punjab (1979) 3 SCC 745 also endorsed this view.

483. Now, we have a clue as to what these Special F
Reasons are. The next question that arises is:- Is there a
comprehensive provision in the criminal procedure code, which
enunciates the mechanism for collection and presentation of the
social and personal data of the culprit to the extent required to
decide the verdict on sentence? G

484. There were no provisions as such until the Law
Commission recommended in its 48th report observing that:-

"It is now being increasingly recognized that rational and
H
594 SUPREME COURT REPORTS [2013] 15 S.C.R.

A consistent sentencing policy requires the removal of
several deficiencies in the present system. One such
deficiency is the lack of comprehensive information as to
characteristics and background of the offender.
The aim of sentencing:- Themselves abscure becomes
B all the more so in the absence of information on which the
correctional process is to operate. The public as well as
the courts themselves are in dark about judicial approach
in this regard.
We are of the view that the taking of evidence as to the
c circumstances relevant to sentencing should be
encouraged and both the prosecution and the accused
should be allowed to co-operate in the process."
485. By enacting Sub-section (2) of 235, the Parliament
has actually acceded to the recommendations of the Law
0
Commission. Enactment of this provision is an act of affirming
the new trend in penology, which mandates the courts to
consider various factors such as the prior criminal record of the
offender, his age, employment, educational background, home
life, sobriety and social adjustment, emotional and mental
E condition, and the prospects of his returning to normal path of
conformity with the law etc ... in deciding the quantum of
sentence.
486. In this background of standards, the judiciary with the
F aid of Section 235(2) ascertained the 'Special Reasons'
pertaining to the criminals as required by Section 354(3) of the
Code to impose death penalty. Subsequently, the constitutional
validity of Section 302 and the sentencing procedure embodied
in sub-section (3) of Section 354 of the Code was challenged
before a Constitution Bench in Bachan Singh (supra) wherein
G the need for reconsideration of Jagmohan Singh (supra), was
felt necessitated due to subsequent events and changes in law.
In addition, a query was raised whether dictum in Rajendra
Prasad (supra) that "special reasons" necessary for imposing
death penalty must relate not to the crime as such, but to the
H criminal was warranted by the law or not.
YAKUB ABDUL RAZAK MEMON v. STATE OF 595
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J]

487. The principal questions, which were considered, in A
this case are:

I. Whether death penalty provided for the
offence of murder in Section 302, Indian Penal
Code is unconstitutional. B
II. If the answer to the foregoing question be in
the negative, whether the sentencing
procedure provided in Sec, 354(3) of the
Cr.P.C., 1973 (Act 2of1974) is unconstitutional
on the ground that it invests the Court with c
unguided and untrammelled discretion and
al1ows death sentence to be arbitrarily or
freakishly imposed on a person found guilty of
murder or any other capital offence punishable
under the Indian Penal Code with death or, in D
the alternative, with imprisonment for life.

Ill. Whether the "special reasons" necessary for
imposing the death penalty should relate to the
criminal alone or even the crime. E
488. The first main question was answered in negative,
indicating that the constitutional validity of death penalty was
upheld in the line of Jagmohan Singh (supra). The second
question regarding the unguided and untrammelled discretion
vested upon the judges to impose death sentence or F
imprisonment for life was answered in the following words:-

"161. A study of the propositions set out above, will show
that, in substance, the authority of none of them has been
affected by the legislative changes since the decision in G
Jagmohan's case. According to the then extant CrPC both
the alternative sentences provided in Section 302, Penal
Code are normal sentences, and the Court can, therefore,
after weighing the aggravating and mitigating
circumstances of the particular case, in its discretion, H
596 SUPREME COURT REPORTS (2013] 15 S.C.R.

A impose either of those sentences. This postulate has now
been modified by Section 354(3) which mandates the
Court convicting a person for an offence punishable with
death or, in the alternative with imprisonment for life or
imprisonment for a term of years, not to impose the
B sentence of death on that person unless there are "special
reasons" - to be recorded - for such sentence ..... "

489. Accordingly, the second question was answered.
With regard to the third question regarding what constitutes
C "special reasons", the majority view clarified that the expression
"special reasons" will be in reference to the crime as well as
the criminal thereby overruling Rajendra Prasad (supra) and
Bishnu Dea Shaw (supra). It reads as follows:

"201. With great respect, we find ourselves unable to agree
D to this enunciation. As we read Sections 354(3) and
235(2) and other related provisions of the Code of 1973,
it is quite clear to us that for making the choice of
punishment or for ascertaining the existence or absence
of "special reasons" in that context, the Court must pay due
E regard both to the crime and the criminal. What is the
relative weight to be given to the aggravating and
mitigating factors, depends on the facts and circumstances
of the particular case. More often than not, these two
aspects are so intertwined that it is difficult to give a
F separate treatment to each of them. This is so because
'style is the 'man'. In many cases, the extremely cruel or
beastly manner of the commission of murder is itself a
demonstrated index of the depraved character of the
perpetrator. That is why, it is not desirable to consider the
G
circumstances of the crime and the circumstances of the
criminal in two separate water-tight compartments. In a
sense, to kill is to be cruel and therefore all murders are
cruel. But such cruelty may vary in its degree of culpability.
And it is only when the culpability assumes the proportion
of extreme depravity that "special reasons" can legitimately
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 597
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J]

be said to exist" A

"163 ..... The present legislative policy discernible from
Section 235(2) read with Section 354(3) is that in fixing
the degree of punishment or making the choice of sentence
for various offences, including one under Section 302, B
Penal Code, the Court should not confine its consideration
"principally" or merely to the circumstances connected with
particular crime, but also give due consideration to the
circumstances of the criminal."

490. As a consequence, the majority view in Bachan Singh c
(supra), gave a wider interpretation to the term "special reasons"
by embracing within its ambit both the circumstances
connected with the particular crime and the criminal. Upshot of
this interpretation is that the 'special reasons' required for
confirming the death sentence under Section 302 or in the D
context of this case in Section 3(2)(i) of TADA will have to be
identified by balancing the aggravating and mitigating or
extenuating circumstances.

491. While determining the aggravating circumstances E
relative weight ought to be given to both criminal and the crime
and an identical approach must be adhered to for ascertaining
the mitigating circumstances. Since these two aspects are
interwoven, it is difficult to segregate the two to state that all
circumstances relating to crime will be aggravating, likewise
F
all circumstances relating to criminal are mitigating. From the
above conspectus, it is clear that the aggravating
circumstances pertaining to both crime and criminal are the
reasons, which can be against the accused; likewise the
mitigating circumstances marshaled from both crime and
G
criminal can be the reasons in favour of the accused.

492. For instance, the manner of commission of murder
may not be brutal or diabolic or pre-meditated. This can be
construed as a mitigating circumstance pertaining to crime and
not the criminal. Hence, a careful evaluation of aggravating and H
598 SUPREME COURT REPORTS [2013] 15 S.C.R.

A mitigating circumstances pertaining to both criminal and crime
is the approach to ascertain the special reasons for imposing
the extreme penalty on a person.

493. Thus, the two cardinal factors, viz., one, the penalty
imposed must be proportionate to the gravity of the crime and
8
second, the degree of responsibility of the offender must be
taken into account in determining the sentence for an individual
accused in addition to aggravating and mitigating
circumstances.

C 494. Now, straightaway we shall determine the sentence
for the appellants within the boundaries prescribed by law,
bearing in mind the purpose of punishment and taking into
account all circumstances influencing the degree of severity
(mitigating and aggravating circumstances) and, in particular
D the degree of criminal responsibility.

495 For convenience, we shall discuss Yakub Abdul
Razak Memon's appeal discretely as against the other 10
appellants.
E Criminal Appeal No. 1728 of 2007

Yakub Abdul Razak Memon (A-1)

Before we shall enumerate the aggravating and mitigating
F circumstances for consideration on sentencing, we ought to find
the degree of responsibility of A-1 for the occurrence of blasts
on 12th March, 1993 in comparison with other appellants. Our
legal system has always emphasized that the sentence shall
reflect the relative significance of the accused's role.

G 496. A-1 is the younger brother of Tiger Memon, (AA), who
is one of the masterminds behind the blasts. A-1 was in a
position of authority, particularly, had played a significant role
in the context of the blasts which is important while determining
the sentence. The confessional statements of co-accused
H discussed in earlier part of judgment under A-1 's appeal
YAKUB ABDUL RAZAK MEMON v. STATE OF 599
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

establish the dominating position of the appellant in comparison A
with other 10 appellants.

·497. At the cost of repetition, we may reiterate the conduct
of A-1, which may be very relevant for ascertaining his dominant
position in commission of the crime.
B
498. The following conduct of the appellant (A-1) along with
the co-conspirator family members may be relevant:-

a) The confessional statements of various co-accused
make a me_ntion that Tiger Memon has instructed c
them to stay in touch with A-1 for further instruction.
Meaning thereby, A-1 assumed the role of Tiger
Memon in India during his absence. As an outcome,
Tiger Memon gave the commands to A-1, who in
turn had passed them to other accused thereby
0
signifying the trusted position that A-1 has obtained
from Tiger Memon, apart from being just a younger
brother.

b) Moreover, A-1 's role was limited not only to the
extent of correspondence between the E
masterminds and all other accused but he was also
entrusted with task of handling the explosive bags
and for their safe keeping, which is again revealed
in the confessional statements of various co-
accused persons. F

c) Furthermore, he was actively involved in hawa/a
transactions for the purpose of facilitating the blasts
on 12th March 1993.

d) Besides, he acquired tickets both for Dubai and G
Pakistan for transporting the appellants to the
respective places for the purpose of training and
coaching them in envisaging their participation for
the blasts in Bombay.
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600 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 499. Essentially, A-1 's deeds can't be viewed distinct from
the act of Tiger Memon, hence, both owe an equivalent
responsibility for the blasts. They were the architects of the
blasts, without whom the plan would have never seen the
daylight. From this conduct, it is not hyperbole to state that, he
B was one of the 'driving sprit' behind the plan of the 1993 blasts,
whereas the other appellants played a far lesser role and thus
a lesser contribution to the crimes resulting from this plan. To
be clearer on the dominant position, the blasts on 12th March,
1993 was at the discretion of the masterminds, meaning
c thereby, they had the effective control over the incident. It is this
effecti.ve control over the incident, which is absent in the role
played by rest of the appellants.

500. Hence, there is a significant difference in the role
played by A-1 and the rest of the appellants. It is difficult to rule
D out with certainty that if the absconding accused were to be
brought to trial, they might have thrown further light at the role-
played by A-1. Since A-1 as well as other absconders were
the real conspirators who hatched the scheme for such a tragic
act, the other 10 appellants i.e A-32, A-36, A-39, A-44, A-10,
E A-29, A-9, A-11, A-12 and A-16 were mere subservient
subordinates whose knowledge and acquaintance might have
been restricted to their counterparts. If we say it in a
metaphoric style, A-1 and all the absconding accused
were the archers whereas rest of the appellants were the
F arrows in their hands.

501. We are mindful of the fact that there is no direct act
attributed to A-1 as far as parking of the explosives filled vehicle
in different localities are concerned. But we should recollect,
G that if, not for the planning of conspirators for which A-1 was a
party too, the explosives and ammunition required for the
execution wouldn't have entered into our country and as a
consequence the exectition itself wouldn't have materialized.
Furthermore, it is not conceivable to envisage that these
principal perpetrators will take the execution in their hands. So
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 601
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J ]

they targeted the meek souls who were underprivileged and A
easily impressible to accomplish their ulterior motive. It is also
' fact that the Memon's family members including A-1
a proved
have fled the country anticipating detention for their illegal acts.

502. From this, it can safely be concluded that no offence
B
might have taken place at all but for the instigation by the
absconding accused and A-1. Hence the dominant position of
the accused is an aggravating factor by itself, as it gives the
status of direct responsibility.

503. The following aggravating circumstances as against C
A-1 can be culled out:-

Aggravating Circumstances:

1. A-1 was one of the brains behind the hatching of
larger conspiracy for the Bombay Bomb Blasts in
0
1993.

2. The dominant position and significant role played
by A-1 is a factor that may aggravate his
punishment. E

3. The "vulnerability of the victims" and "the depravity
of the crimes" constitute additional aggravating
circumstances.

4. Crime of terrorism is in itself an aggravating F
circumstance as it carries a "special stigmatization"
due to the deliberate form of inhuman treatment it
represents and the severity of the pain and suffering
inflicted.
G
5. He was part of the deliberate choosing of localities
like Century Bazaar, Zaveri Bazaar, Katha Bazaar,
Stock Exchange Building etc. where there was
more prospect of public gathering. The manner of
H
602 SUPREME COURT REPORTS [2013] 15 S.C.R.

A its execution and its design would put it at the level
of extreme atrocity and cruelty.

Mitigating Circumstances:

504. Mr. Jaspal Singh, learned senior counsel submitted
B the following as the mitigating circumstances to reduce the
severity of the sentence of A-1.

He is a Chartered Accountant by profession and a
respectable person in the society before the
c occurrence of this incident.

Learned senior counsel emphasized more on the
point that this is a fabricated case and A-1 was
merely inflicted in this trial on the sole ground of
being the brother of Tiger Memon, who is the
D
absconding accused in this case. As a
consequence, there is no overt act committed by
the accused himself. In fact, the act of A-1 returning
to India unlike other absconders is in itself a
mitigating circumstance in his favour.
E
No criminal antecedent.

He suffers from depression since 1996.

Lastly, he had served more than 19 years in jail.
F
505. In our considered opinion, the argument of learned
senior counsel that A-1 was inflicted in this trial only on the sole
ground of being the brother of Tiger Memon does not impress
us, as the evidence shows the contrary. We accept the
G contention of learned senior counsel and treat the lack of prior
criminal record as a mitigating factor; other ascertained
mitigating circumstances are not at the higher pedestal to
bargain for reduction of sentence .
•
506. Now, the task is vested upon us to determine
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 603
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

appropriate sentence for an accused who was in the A
commanding position and was involved in crimes of the utmost
gravity. Under the established jurisprudence, these two factors-
a commanding position and a crime of 'utmost gravity' ordinarily
merit the extreme penalty even accounting for the guilty plea and
mitigating factors. This is the special reason, which warrants s
death penalty to the accused.

507. For the foregoing reasons, having taking into account
and weighed the totality of A-1 's culpability and all the particular
circumstances of the case, we concur with the decision of the
Designated Court and confirm the sentence of capital C
punishment to A-1 and the appeal is disposed of accordingly.

508. We shall now discuss the appeals filed by rest of the
appellants sentenced to capital punishment by the Designated
Court. D

509. The above said appellants have traded the freedom
of choice for the freedom to commit atrocities. The discussion
relating to Yakub Abdul Razak Memon (A-1) amply differentiates
the role played by these 10 appellants with A-1. Though the E
incident of bomb blasts is not a brainchild of these 10 appellants
yet they turned the conspirators' orders into action by executing
the blasts for which they are indisputably liable for the
consequence of their acts. Every person is responsible for his
or her actions and they can't evade the accountability by placing
the responsibility to another person. At the same time, our legal F
system mandates that the sentence shall reflect the relative
significance of the accused's role.

510.The following are the aggravating circumstances with
regard to the above said appellants:- G

Aggravating circumstances

1. They underwent special training in Pakistan for the
purpose of executing the blasts in India.
H
604 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 2. These accused persons/individuals parked the
vehicles with explosives at different spots as
directed by their masterminds for the explosion of
bombs.

3. Crime of terrorism is in itself an aggravating
B
circumstance as it carries a "special stigmatization"
due to the deliberate form of inhuman treatment it
represents and the severity of the pain and suffering
inflicted.

c 4. The "vulnerability of the victims" and "the depravity
of the crimes" constitute additional aggravating
circumstances.

5. The manner of its execution and its design is at a
D level of extreme atrocity and cruelty.

Though the aggravating circumstances remains the same
for all the 10 appellants, but their mitigating circumstance differ
from individual to individual. Therefore, we shall catalog the
mitigating circumstances independently for each accused.
E
511. The following factors may be relevant while
ascertaining the mitigating circumstances:-

Criminal Appeal Nos. 609-610 of 2008
F Learned counsel for the appellants submitted that all the
three appellants (A-32, A-36 and A-39) have been in custody
since their arrest except A-39, who was granted interim bail on
medical grounds to look after his mother who was seriously ill.
As on date, the appellants have served more than 19 years each
G in jail. According to learned counsel, during the above said entire
period, there is no complaint against the appellants either by
the jail authorities or by the escort party as and when they were
granted permission to go for medical treatment and lo their
respective homes in order to attend marriage, sickness, other
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 605
MAHARASHTRA, THR CBI , BOMBAY [P SATHASIVAM, J.)
functions and death of their near and dear ones. Learned A
counsel further submitted that the appellants being the first time
offenders have already incarcerated more than 19 years in
custody and they must be considered and be given a chance
of reformation to be in society. It was further pointed out that
A-32 has completed his Graduation (Bachelor of Commerce) B
from Yeshwantrao Chavan Maharashtra Open University,
Nashik while in jail which itself indicates the prospect of his
reformation and rehabilitation. As far as A-36 is concerned, he
belongs to the lower strata of the society. He used to make and
sell brooms to eke out his livelihood and is suffering from a c
cardiac ailment. Insofar as A-39 is concerned, learned counsel
submitted that he is the one, who was granted interim bail by
the Designated Court in order to look after his ailing mother.
After considering his application being Bail Application No. 5
of 2005, learned Judge granted him bail and he was on interim
0
bail for about 4 'h months. In a nutshell, their mitigating
circumstances can be summarized as under:-

Mitigating Circumstances (A-32):

1. At the time of arrest, he was 21 years of age. E
2. He shows remorse for his role in the blast.

3. Lack of prior criminal record.

4. He cooperated in the investigation. F
5. He suffers from Bone Tb, Arthritis, which severely
affected his right shoulder and arm bone; he further
suffers from paralysis, which has affected right side
of his face. He has developed glands in his testicles
and developed ailment at cervical vertebrata. He G
has been suffering from cervical vertebrata. On the
whole he has been suffering from illness for the past
8 years and has been operated twice during the
said period.
H
606 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 6. Family circumstances: He has sick parents and
mentally retarded brother to look after.

7. He was a mechanic by profession.

8. He is in custody since 18.04.1993.
B
A36's Mitigating Circumstances:

1. AMhe time of arrest, he was 32 years of age.

2. He shows remorse for his role in the blast.
c
3. Lack of prior criminal record.

4. He co-operated in the investigation.

5. He suffers from cardiac ailment.
D
6. Family circumstances: He has old mother, wife and
three children to look after.

7. Before the blasts, he was earning his livelihood by
E making and selling broom in the market.

8. He is in custody since 18.04.1993.

A39's Mitigating Circumstances:

F 1. He shows remorse for his role in the blast.

2. Lack of prior criminal record.

3. He co-operated in the investigation.

4. He suffers from psychiatry problem and was treated
G
for.the same while in custody.

5. Family circumstances: He is unmarried and has old
mother to look after.

H 6. He used to work for the relief camps setup for

-
YAKUB ABDUL RAZAK MEMON v. STATE OF 607
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J.]
helping persons affected by riots. A

7. He is in custody since 1993

Criminal Appeal Nos. 628-629 of 2008

Learned counsel for the appellant (A-44) submitted that the B
sentence awarded by the Designated Court is very harsh and
he is in custody for more than 19 years, hence, he deserves to
be released for the period already undergone. It was also
submitted that there is neither any complaint against the
appellant nor misuse of any facilities granted to him by the c
Designated Court. According to the counsel, the period already
undergone must be considered and he be released from jail
as he intends to lead a life of a good and reformed person. It
was further submitted that he has to look after his family
especially his two daughters who are yet to be married and one 0
son whom he intends to pursue for higher studies. It was also
brought to our notice that before the incident, he was earning
his livelihood by selling readymade garments. The abovesaid
submission can be summarized as under:-

A44's Mitigating Circumstances: E

1. At the time of arrest, he was 37 years of age.

2. He shows remorse for his role in the blasts.

3. Lack of prior criminal record. F

4. He co-operated in the investigation.

5. He used to sell readymade garments in the streets.

6. He is in custody since 19.05.1993. G

Criminal Appeal Nos. 637-638 of 2008

With regard to sentence, Ms. Farhana Shah, learned
counsel for the appellants (A-10 and A-29) submitted that both H
608 SUPREME COURT REPORTS [2013] 15 S.C.R.

A of them are in judicial custody for more than 19 years. She also
pointed out that the sentence awarded to them is very harsh
and they should be given a chance to be in society as
reformation is more important than being a deterrent and also
that they deserve to be released for the period already
B undergone.

She further pointed out that Asgar Yousuf Mukadam (A-
10) has completed his Graduation while in custody which shows
that he should be given a chance of reformation which he would
lose in case he is incarcerated in prison. It was further
C submitted that the accused persons are not hardened habitual
criminals and they deserve to get a chance for reformation and
rehabilitation. It was also pointed out that even during the entire
period of judicial custody there is neither any report of misuse
of the permissions/facilities granted to them nor there is any
D adverse report from the jail authorities. In a nutshell, their
mitigating circumstances can be summarized as under:-

A10's Mitigating Circumstances:

1. At the time of arrest, he was aged about 31 years.
E
2. He shows remorse for his role in the blasts.

3. Lack of prior criminal record.

4. He co-operated in the investigation.
F
5. Family circumstances: He is unmarried and has old
parents to look after.

6. He used to work as an Accountant of Tiger Memon
G (AA).

7. He acted under extreme duress because he was
under substantial domination of the main
conspirator.

H 8. He is in custody since 12 .03.1993.
YAKUB ABDUL RAZAK MEMON v. STATE OF 609
MAHARASHTRA, THR. CBI, BOMBAY [P. SATHASIVAM, J.]
A29's Mitigating Circumstances: A

1. He is an illiterate person.

2. He shows remorse for his role in the blasts.

3. Lack of prior criminal record. B

4. He co-operated in the investigation.

5. Family circumstances: He has a young child and
wife to look after.
c
6. He is in custody since 1993

Criminal Appeal No. 365 of 2008

Ms. Farhana Shah, learned counsel for the appellant (A-
9) submitted that the appellant has been in custody since his D
arrest on 17.03.1993. According to her, during his entire period
of custody for more than 19 years, there is not even a single
complaint against him neither any misuse of the permissions
granted nor any attempt to flee away from justice. She further
pointed out that the appellant was granted permission to visit E
home on number of occasions in order to meet his ailing
mother and to attend the marriage of his brother but he never
misused the same at any point of time.

In addition to the same, learned counsel pointed out that F
though he was convicted and sentenced to death, he completed
his Graduation from Yeshwantrao Chavan Maharashtra Open
University, Nashik while in jail which shows that there is chance
of reformation in him and the appellant is not a hardened
criminal, hence, he deserves to lead a normal life to serve his G
a1ied sick mother who is bed-ridden and waiting for his return.

A9's Mitigating Circumstances:

1. He shows remorse for his role in the blasts.
H
610 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 2. Lack of prior criminal record.

3. He co-operated in the investigation.

4. Family circumstances: He is unmarried and has old
parents and siblings to look after.
B
5. He was a salesman in a shopping center.

6. He is .in custody since 17.03.1993.

Criminal Appeal Nos. 864-865 of 2008
c
With regard to sentence, Ms. Farhana Shah, learned
counsel for the appellant (A-11) has submitted that the
appellant has served more than 19 years in jail since his arrest
on 18.03.1993. She further pointed out that during the entire
D period of 19 years, there is neither any complaint against him
nor misuse of any permissions granted nor any attempt to
abscond/flee away from justice. It is further pointed out that the
appellant has been sent home on a number of occasions for
attending the marriage of his children, last rites, visit his ailing
E wife, etc. but he never misused the same, hence, he may be
given a chance to lead a normal life along with his family
members. Before the date of incident, he was earning his
livelihood by driving a taxi.

A11 's Mitigating Circumstances:
F
1. At the time of arrest, he was aged about 44 years.

2. He shows remorse for his role in the blast.

3. Lack of prior criminal record.
G
4. He co-operated in the investigation.

5. Family circumstances: He has aged parents and
two unmarried daughters to look after.
H 6. He used to be a taxi driver.
YAKUB ABDUL RAZAK MEMON v. STATE OF 611
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J ]

7. He is in custody since 18.03.1993. A

Criminal Appeal No. 897 of 2008
With regard to sentence, Ms. Farhana Shah, learned
counsel for the appellant submitted that the appellant (A-12) has
undergone more than 19 years in custody since his arrest on B
20.03.1993. She also pointed out that there is neither any
complaint against him nor misuse of any facility granted to him
and he has n.ever made any attempt to flee away from justice.
She also pointed out that even during the pendency of this
appeal, this Court granted him permission on two occasions C
to visit his home and graveyard at the time of death of his father
and mother.
In addition to the same, learned counsel also pointed out
that though he was convicted and sentenced to death, he has
completed his Graduation from Yeshwantrao Chavan D
Maharashtra Open University, Nashik which shows that
reformation theory can be applied in his case. Further, it was
pointed out that he is not a hardened criminal, hence, he
deserves to get a chance to lead a normal life. With these
materials, learned counsel prayed for leniency in his sentence. E
A12's Mitigating Circumstances:
1. At the time of arrest, he was aged about 25 years.
2. He completed his graduation in jail.
3. He shows remorse for his role in the blasts. F
4. Lack of prior criminal record.
5. He co-operated in the investigation.
6. Family circumstances: He has old parents, wife and
a son to look after. G
7. He used to be a mechanic.
8. He is in custody since 20.03.1993.
Criminal Appeal Nos. 941-942 of 2008
Ms. Farhana Shah, learned counsel for the appellant (A- H
612 SUPREME COURT REPORTS [2013] 15 S.C.R.

A 16) submitted that the appellant is in custody for more than 19
years and he deserves to be released for the period already
undergone. She also pointed out that there is neither any
complaint against him nor misuse of any facility granted by the
Designated Court. She further pointed out that the appellant is
B suffering from mental disorder and he was under treatment of
J.J. Hospital and Thane Mental Hospital during the entire period
of trial. He is still under treatment and, as advised by the
doctors, is surviving on medicines. His mental condition is not
stable. In support of the above claim, learned counsel has
c submitted his medical reports for perusal of this Court.
A-16's Mitigating Circumstances:
1. He shows remorse for his role in the blasts.
2. Lack of prior criminal record.
D 3. He co-operated in the investigation.
4. He is undergoing psychiatric treatment for the last
9 years and was admitted to the prison hospital for
15 months.
5. Family circumstances: He has old mother, wife and
E three children to look after.
6. He was earning his livelihood by making and selling
brooms in the market.
7. He is in custody since 24.03.1993.
F 512. At the outset, we can classify these mitigating
circumstances into seven heads, namely, age, act of remorse,
no prior criminal antecedents, co-operation with the
investigation, family circumstances, ill health and delay in
execution. The first five aspects have been accepted as
G mitigating circumstances by the established practices of this
Court. As far as 'ill health' is concerned, it is not a mitigating
but a special circumstance which may aid in reduction of
sentence. The vital distinction between the 'special
circumstance' and 'mitigating circumstance appears to lie in the
H fact that the reduction in penalty is given not owing to any merit
YAKUB ABDUL RAZAK MEMON v. STATE OF 613
MAHARASHTRA, THR CBI , BOMBAY [P. SATHASIVAM, J.]

earned on the part of the accused, but because of compelling A
'reasons of humanity', illustrating a humane approach to.
sentencing in this context.
513. Another vital factor stated as mitigating circumstance
in all these petitions is that they have all been imprisoned for
around 20 years and they continue to be in jail; hence the B
defence counsel submitted that on humanitarian grounds,
sentence of all the death convicts must be reduced to
imprisonment for life. Nevertheless, it is settled law by a
Constitution Bench in Triveniben vs. State of Gujarat (1989) 1
SCC 678 that sentence can't. be commuted merely on the c
ground of delay alone. It was further observed that no absolute
or unqualified rule can be laid down that in every case in which
there is a long delay in the execution of death sentence, the
sentence must be substituted by the sentence of life
imprisonment. Thus no accused can claim as a matter of right 0
to commute his/her death sentence on the ground of delay in
the judicial process. However, noting the lengthy incarceration
suffered by the accused over a period of two decades, as an
exceptional scenario, we are inclined to consider the long delay
as a mitigating circumstance but less significance will be E
attached to them in comparison with other six circumstances.
514. Furthermore, as we have 'already narrated, all the
above said 1O appellants belong to th€ lower strata of society,
most of whom don't even have any regular job for.their livelihood.
In brief, their personal life was relatively moderate before this F
incident. Subsequently, these appellants have fallen prey to the
ulterior motive of the conspirators for accomplishing their hidden
motives, which was to spread terror among the people. Such
evidence can in no way exonerate or excuse them for their
participation in the commission of crime. However, it provides G
a somewhat nuanced picture and may imply that their
participation in the massacres resulted from misguided notions
rather than extremism.
515. Recalling that the sentence should directly reflect the
role of the accused in the crime, we made an attempt to H
614 SUPREME COURT REPORTS [2013] 15 S.C.R.

A evaluate the significance of these mitigating circums;ances
respectively and their repercussions on the quantum of
sentence on these 1O appellants.
516. Technically, it is these 1O appellants who parked the
explosive filled vehicles in the respective destinations, however,
B if we do lift the veil it is actually the masterminds strategy, which
was executed by the subservient minions i.e these 1 O
appellants. This may not help in complete exoneration of the
liability of these 10 appellants but the degree of punishment
must necessarily reflect this difference. It is vital to remember
c that 'but for' the masterminds, this blast should have never seen
the daylight.
517. Accordingly, to differentiate the degree of punishment
to A-1 and other 10 appellants, we contemplate that the ends
of justice would be served if the death sentence of these ten
D appellants be commuted to imprisonment for life.
518. With a note of caution, we reiterate that it is ordinarily
expected that two accused convicted of similar crimes in similar
circumstances should not in practice receive very different
sentences, often the differences are more significant than the
E similarities, and the mitigating and aggravating factors dictate
different results. Therefore, the lesser sentence imposed on
these 1Oappellants cannot be a precedent in other cases and
every case must be decided according to their facts and
circumstances.
F 519. In view of the above, it is apt to quote a decision of
this Court in State of UP. vs. Sanjay Kumar (2012) 8 SCC
537, to understand the sentencing policy having regard to the
nature of the offence and the manner in which it was executed
or committed etc. The following paragraphs are relevant:-
G "21. Sentencing policy is a way to guide judicial
discretion in accomplishing particular sentencing.
Generally, two criteria, that is, the seriousness of the crime
and the criminal history of the accused, are used to
prescribe punishment. By introducing more uniformity and
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 615
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

consistency into the sentencing process, the objective of A
. the policy, is to make it easier to predict sentencing
outcomes. Sentencing policies are needed to address
concerns in relation to unfettered judicial discretion and lack
of uniform and equal treatment of similarly situated
convicts. The principle of proportionality, as followed in B
various judgments of this Court, prescribes that, the
punishments should reflect the gravity of the offence and
also the criminal background of the convict. Thus, the
graver the offence and the longer the criminal record, the
more severe is the punishment to be awarded. By laying c
emphasis on individualised justice, and shaping the result
of the crime to the circumstances of the offender and the
needs of the victim and community, restorative justice
eschews uniformity of sentencing. Undue sympathy to
impose inadequate sentence would do more harm to the
0
public system to undermine the public confidence in the
efficacy of law and society could not long endure under
serious threats.
22. Ultimately, it becomes the duty of the courts to
award proper sentence, having regard to the nature of the E
offence and the manner in which it was executed or
committed, etc. The courts should impose a punishment
befitting the crime so that the courts are able to accurately
reflect public abhorrence of the crime. It is the nature and
gravity of the crime, and not the criminal, which are F
germane for consideration of appropriate punishment in
a criminal trial. Imposition of sentence without considering
its effect on social order in many cases may be in reality,
a futile exercise.
23. The survival of an orderly society demands the G
extinction of the life of a person who is proved to be a
menace to social order and security. Thus, the courts for
the purpose of deciding just and appropriate sentence to
be awarded for an offence, have to delicately balance the
aggravating and mitigating factors and circumstances in H .

J
616 SUPREME COURT REPORTS [2013] 15 S.C.R.

A which a crime has been committed, in a dispassionate
manner. In the absence of any foolproof formula which may
provide a basis for reasonable criteria to correctly assess
various circumstances germane for the consideration of
the gravity of the crime, discretionary judgment, in relation
B to the facts of each case, is the only way in which such
judgment may be equitably distinguished. The Court has
primarily dissected the principles into two different
compartments-one being the "aggravating
circumstances" and, the other being the "mitigating
c circumstance". To balance the two is the primary duty of
the court. The principle of proportionality between the crime
and the punishment is the principle of "just deserts" that
serves as the foundation of every criminal sentence that
is justifiable. In other words, the "doctrine of proportionality"
has valuable application to the sentencing policy under the
D
Indian criminal jurisprudence. While determining the
quantum of punishment the court always records sufficient
reasons. (Vide Sevaka Perumal v. State of TN. AIR 1991
SC 1463 Ravji v. State of Rajasthan AIR 1996 SC 787,
State of M.P. v. Ghanshyam Singh AIR 2003 SC 3191,
E Dhananjoy Chatterjee v. State of WB. AIR 2004 SC
3454, Rajendra Pralhadrao Wasnik v. State of
Maharashtra AIR 2012 SC 1377 and Brajendrasingh v.
State of M.P. AIR 2012 SC 1552)
24 .. ... The aforesaid judgments make it crystal clear that
F
this Court has merely found out the via media, where
considering the facts and circumstances of a particular
case, by way of which it has come to the conclusion that
it was not the "rarest of rare cases", warranting death
penalty, but a sentence of 14 years or 20 years, as
G referred to in the guidelines laid down by the States would
be totally inadequate. The life imprisonment cannot be
equivalent to imprisonment for 14 years or 20 years,
rather it always meant as the whole natural life. This Court
has always clarified that the punishment so awarded
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 617
MAHARASHTRA, THR. CBI , BOMBAY [P. SATHASIVAM, J.]

would be subject to any order passed in exercise of the A
clemency powers of the President of India or the Governor
of the State, as the case may be. Pardons, reprieves and
remissions are granted in exercise of prerogative power.
There is no scope of judicial review of such orders except
on very limited grounds, for example, non-application of B
mind while passing the order; non-consideration of
relevant material; or if the order suffers from arbitrariness.
The power to grant pardons and to commute sentences
is coupled with a duty to exercise the same fairly and
reasonably. Administration of justice cannot be perverted c
by executive or political pressure. Of course, adoption of
uniform standards may not be possible while exercising
the power of pardon. Thus, such orders do not interfere
with the sovereign power of the State. More so, not being
in contravention of any statutory or constitutional
D
provision, the orders, even if treated to have been passed
under Article 142 of the Constitution do not deserve to
be labelled as unwarranted. The aforesaid orders have
been passed considering the gravity of the offences in
those cases that the accused would not be entitled to be E ..
considered for premature release under the guidelines
issued for that purpose i.e. under the Jail Manual, etc.
or even under Section 433-A CrPC."
Life Imprisonment Means Rigorous Imprisonment:
520. There was a misperception that life imprisonment is F
distinct from the punishment of rigorous or simple imprisonment
shown in clause (4) of Section 53 of the Code of Criminal
Procedure. This issue was clarified in Md. Munna vs. UOI and
Ors./Kartick Biswas vs. State of West Bengal and Ors. (2005)
7 sec 417; it was held: G
"10 ..... lmprisonment for life is a class 'of punishment
different from ordinary imprisonment which could be of two
descriptions, namely, "rigorous" or "simple". It was
unnecessary for the Legislature to specifically mention that
the imprisonment for life would be rigorous imprisonment H
618 SUPREME COURT REPORTS [2013] 15 S.C.R.

A for life as it is imposed as punishment for grave offences."
Therefore, "imprisonment for life" is to be treated as
"rigorous imprisonment for life".
Meaning of Life Imprisonment:
B 521. Life imprisonment cannot be equivalent to
imprisonment for 14 years or 20 years or even 30 years, rather
it always means the whole natural life. This Court has always
clarified that the punishment of a fixed term of imprisonment
so awarded would be subject to any order passed in exercise
C of clemency powers of the President of India or the Governor
of the State, or remission and commutation guaranteed under
Section 432 of the Code as the case may be.
522. As observed in State of Uttar Pradesh vs. Sanjay
Kumar, (2012) 8 SCC 537, there is no scope of judicial review
0 of such orders except on very limited grounds such as the non-
application of mind while passing the order, non-consideration
of relevant material, or if the order suffers from arbitrariness.
The power to grant remissions and to commute sentences is
coupled with a duty to exercise the same fairly, reasonably and
E in terms of restrictions imposed in several provisions of the
Code.
523. In order to check all arbitrary remissions, the Code
itself provides several conditions. Sub-sections (2) to (5) of
Section 432 of the Code lay down basic procedure for making
F an application to the appropriate Government for suspension
or remission of sentence either by the convict or someone on
his behalf. We are of the view that exercise of power by the
appropriate Government under sub-section (1) of Section 432
of the Code cannot be automatic or claimed as a right for the
G simple reason, that this is only an enabling provision and the
same would be possible subject to fulfillment of certain
conditions. Those conditions are mentioned either in the Jail
Manual or in statutory rules. This Court, in various decisions,
has held that the power of remission cannot be exercised
arbitrarily. In other words, the decision to grant remission has
H
YAKUB ABDUL RAZAK MEMON v. STATE OF 619
MAHARASHTRA, THR. CBI , BOMBAY [P SATHASIVAM, J.]

to be well informed, reasonable and fair to all concerned. The A
statutory procedure .laid down in Section 432 of the Code itself
provides this check on the possible misuse of power by the
appropriate Government.
524. As rightly observed by this Court in Sangeet and Anr.
vs. State of Haryana, 2012 (11) Scale 140, there is B
misconception that a prisoner serving life sentence has an
indefeasible right to release on completion of either 14 years
or 20 years imprisonment. A convict undergoing life
imprisonment is expected to remain in custody till the end of
his life, subject to any remission granted by the appropriate C
Government under Section 432 of the Code, which in turn is
subject to the procedural checks mentioned in the said
provision and to further substantive check in Section 433-A of
the Code.
525. Therefore, pursuant to Sections 432 and 433 of the D
Code and clemency powers of President and Governor, as
vested by the Constitution under Articles 72 and 161
respectively, the accused persons, viz., A-32, A-36, A-39, A-
44, A-10, A-29, A-9, A-11, A-12 and A-16 shall be imprisoned
for life until their death and the appeals are disposed off on the. E
above terms. We may add a footnote to the above conviction
that the executive should take due consideration of judicial
reasoning before excising the remission power.
526. For convenience, we have reproduced the conclusion
arrived at in respect of all the appeals dealt with under this part F
in Annexure 'A' appended hereto.
Death Ref. Case (Crl.l No. 1 of 2011
State of Maharashtra through CBI ..... Appellant (s)
vs. G
Yakub Abdul Razak Memon & Ors ..... Respondent(s)
527. In view of the conclusion arrived at in respect of the
above said appeals filed by the appellants herein, we confirm

H
620 SUPREME COURT REPORTS [2013] 15 S.C.P.

A the death reference with regard to Yakub Abdul Razak Memon
(A-1) and commute the death sentence into life imprisonment
for rest of the appellants convicted under this part. The Death
Reference is disposed of accordingly.

B Rajendra Prasad Appeals disposed of.

Annexure 'A'
s Criminal Accused Name Sentence Award No
No Appeal and Number. Designated by
Court Supreme
Court
c
1 1728/2007 Yakub Abdul Razak Death Confirmed
Memon (A-1) Sentence
2. 609-610/2008 Zakir Hussain Noor Death
Mohd. Shaikh (A-32) Sentence
Abdul Khan @ Yakub
D Khan Akhtar Khan
(A-36)
Firoz @ Akram Amani
Malik (A-39)
3 628-629/2008 Mohammed Mushtaq Death Commuted
E Moosa Tarani (A-44) Sentence Life
4 637-638/2008 Asgar Yusuf Mukadam Death Imprison-
(A-10) and Sentence men!
Shahnawaz Abdul
Kadar Qureshi (A-29)
F 5 365/2008 Mohammed Shoeb Death
Mohammed Sentence·
Kasam Ghansar (A-9)
6 864-865/2008 Abdul Gani Ismail Death
Turk(A-11) Sentence

G 7 897/2008 Parvez Nazir Ahmed Death
Shaikh (A-12) Sentence
8 941-942/2008 Mohd. Farooq Death
Mohammed Yusuf Sentence
Pawale (A-16)

H