gateway of india bomb blast case pota court mumbai judgement

1 Pota.Spl.Case 1 of 2004

IN THE SPECIAL COURT CONSTITUTED UNDER THE PREVENTION OF TERRORISM ACT, 2002 AT GREATER

BOMBAY

POTA SPECIAL CASE NO. 1 OF 2004

The State of Maharashtra ](At the instance of DCB CID., ]Mumbai, vide C.R.No.157/02, ]75/03, 91/03 and 206/03) ] ...Complainant. Versus

1. Sayyed Mohd. Hanif Abdul Rahim] D-7, Salim Chawl, Chimatpada, ] Marol Naka, Andheri (East), ] Mumbai-59. ]

2.Ashrat @ Arshrad Shafiqu Ahmed] Ansari ] Juned Nagar, C.D.Barfiwala Rd,] Andheri (West), Mumbai-58. ]

3.Fehmida w/o Sayyed Mohd. Hanif]... Accused. D-7, Salim Chawl, Chimatpada, ] Marol Naka, Andheri (East), ] Mumbai-59. ]

4.Jahid Yusuf Patne ](A-4 Jahid is tendered Chandresh Upwan, B-Wing, ] pardon by the Court R. No.104, Lodha Complex, ] and thereafter he is Mira Road (E), Dist-Thane. ] examined as PW-2 by

] the prosecution)


5.Mohd. Hasan @ Hasan ] Case against accused Battrywala ] no.5 Mohd. Hasan & Sanjay Nagar, Hill No.3 ] accused No.6 Mohd. Sunder Baug, Kurla (W) ] Rizwan is deemed to Mumbai-400 020. ] have been withdrawn

] as per Clause(a)of6.Mohd. Rizwan @ Razwan ] sub-section (3) of Ladduwala ] section 2 of the Rajiv Gandhi Nagar ] POTA (Repeal) Act, Zopadpatti, Burmacell ] 2004 vide order Kurla (East), ] dated 17/11/2008 Mumbai-400 070. ] passed on Exh.D-116

CORAM : HIS HONOUR THE SPECIAL JUDGE UNDER POTA, 2002 SHRI M.R.PURANIK.(C.R.No.57)

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

Mr. Wahab Khan, Advocate for accused no.1.Mr. Kunjuraman, Advocate for accused no.2. Mr. S.R.Pasbola,Advocate for accused no.3.Mr.Ujjwal Nikam, Special Public Prosecutor for the State/complainant.

J U D G M E N T

1. Accused No.1 Sayyed Mohd. Hanif Abdul

Rehman, accused No.2 Ashrat @ Arshad Shafiq Ahmed

Ansari and accused No.3 Fehmida w/o Sayyed Mohd.


Hanif are facing trial of having committed offences

under sections 120-B r/w sections 302, 307, 427 of

IPC and under sections 3(2), 3(3), 4, 5 and 20 of

Prevention of Terrorism Act, 2002, u/s 3, 4, 5 and

6 of Explosive Substances Act,1908, u/s 3 and 4 of

Prevention of Damage to Public Property Act and u/s

5, 9(b) of Indian Explosives Act, 1884.

2. Prosecution case is as under :

There were series of bomb blasts in Mumbai

City during the period December-2002 to August-2003.

Out of the four such incidents, first was in respect

of unexploded bomb kept below the rear seat in BEST

bus No. MH-01-H 8765 of route No.336 near Seepz Bus

Depot, MIDC, Andheri (East), Mumbai at about 21.40

hrs. on 2.12.2002. Offence to this effect was

registered at MIDC Police Station vide C.R.No.400 of

2002 u/s 120-B, 121-A, 122, 307 r/w 511 of IPC and

u/s 5 of Explosive Substances Act and u/s 3,4, and 9

of Indian Explosives Act on the basis of the FIR


lodged by API Tanaji Jadhav (PW-63).

3. Immediately after the occurrence, officers

of MIDC Police Station, panchas and Bomb Detection

Disposal Squad arrived at Seepz Bus Depot and

thereafter PSI Girish Gode (PW-58) attached to BDDS

put on bomb suit on his person and entered into the

BEST bus. After noticing the suspicious article at

the rear side of the bus, the same was wrapped by

him in another bomb suit and it was taken out of the

BEST bus and the same was kept in open place. In

order to know the ingredients of the suspicious

articles, PSI Girish Gode by way of Cordex Method

and by using small detonator did a small explosion

due to which the cardboard box kept in the cloth bag

was burst and after seeing alarm clock and wires it

was found that Time Bomb was kept in the cloth bag.

Panchanama (Ex-P-407) to the above effect was

prepared by PSI Diwakar Sawant in presence of

panchas Michel Francis D'souza (PW-56) and

Pravinchandra Rathod. The suspected articles were


encircled by sand bags and guards were appointed to

protect the same.

4. A team of National Security Guard was

called from Delhi which arrived on the next day and

it defused the time bomb. The parts of the bomb and

other material consisting 14 gelatine sticks, one

detonator, one battery, one alarm clock, one black

washer, one electric button, pieces of cardboard

box, gray colour torn cloth bag and small pieces of

sutali and plastic rope and other articles were

seized by PSI Diwakar Sawant in presence of panchas

Shri Ramsurat Shukla (PW-57) and Gopinath Joshi vide

panchanama (Ex-P-410).

5. Seized articles were sent to the office of

Forensic Science Laboratory, Kalina, Mumbai on

5.12.2002 and Ex-P-428 is the C.A report to that

effect. Statement of witnesses were recorded by PI


Wagh and thereafter the investigation into said

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

2002.

6. Second incident of bomb blast occurred on

28.7.2003 at about 21.10 hrs in a BEST bus bearing

No.MH-01-H-8246 plying on route No.340 at Karani

Lane, LBS Road Junction, Ghatkopar (West), Mumbai.

As a result of above blast two persons viz. Vilas

Vishnu Mahendrakar and Shivbali @ Hublal Jagardev

Yadav succumbed to the injuries and 60 passengers

became injured. Apart from that the vehicles i.e two

auto-rickshaws and two motor cycles and several

shops in the vicinity got damaged. Due to the above

blast damage was caused to public and private

property worth Rs.16.30 lacs. FIR of the said

incident was lodged by bus conductor Shri Dilip

Wankhede (PW-54) and it was recorded by PSI Shri

D.N.Jadhav of Ghatkopar Police Station and on that

basis offence was registered at Ghatkopar Police


Station vide C.R.No.235 of 2003 u/s 120-B, 302, 307,

326, 324, 427, 34 of IPC and u/s 3 of Explosive

Substances Act and u/s 5 & 9(b) of Indian Explosives

Act as well as u/s 3 of Prevention of Damage to

Public Property Act.

7. Investigation into C.R.No. 235 of 2003 was

carried out by the officers of Ghatkopar Police

station from 28.7.2003 to 31.8.2003. Panchanama of

the scene of offence (Ex-P-380) was prepared by PI

Shri R.C.Patil (PW-47) in presence of panchas. The

rear portion of the BEST bus including the last

bench was completely damaged and only angles were

seen in the rear side body of the bus. Blood stains

were found on the seats of the bus. Pieces of

glasses of the bus were found scattered on the spot.

As a result of the above explosion the BEST bus of

route No. 7 as well as three auto rickshaws, two

motor cycles and one Qualis Jeep and nearby

buildings were also damaged. Pieces of tins, metal


pieces, currency notes and coins, pieces of glasses,

mobiles, walkman, pencil cell were found scattered

on the scene of offence and these articles were

seized. Aluminum pieces of BEST bus and glass

pieces which were scattered on the spot were sent to

FSL, Kalina Mumbai. Blood sample was taken from the

spot. Dead bodies of the two deceased persons were

sent to Rajawadi Hospital where autopsy was

performed by the medical officer. All the injured

persons were admitted in various hospitals and their

statements were recorded by the officers of

Ghatkopar Police Station. Medical certificates of

the injured persons and the postmortem reports of

deceased persons were collected from the hospitals.

8. Third and fourth incident of bomb blast took

place on one and the same day i.e on 25.8.2003 at

Zaveri Bazar near Mumbadevi Temple at Gateway of

India opposite Taj Hotel at noon time. On the

above day at about 12.40 hrs there was powerful bomb


explosion in a motor taxi bearing No.MH-02-R-2022

which was kept waiting at the junction of Dhanaji

Street at Yusufali Road in front of Sagar Juice

Center near Mumbadevi Temple, Mumbai. In the said

blast 36 persons were killed and 138 became injured

and the property worth Rs.95 lacs including 41

vehicles, shops and residential houses were damaged.

Taxi Driver Shri Lalasaheb Tilakdhari Singh (PW-27)

lodged FIR (Ex-P-340) of the above bomb blast to

L.T.Marg Police Station at about 12.45 hrs. which

was recorded by PSI Suryakant Nikewadi (PW-42) and

on that basis offence was registered at L.T.Marg

Police Station vide C.R.No. 201 of 2003 u/s 120-B,

302, 307, 326, 324, 436 and 427 of IPC and u/s 3,4,5

and 6 of Indian Explosives Act. Metal pieces were

scattered and blood stains were splattered on the

spot. While preparing the panchanama, officers of

Forensic Science Laboratory were called on the spot,

who inspected the scene of offence and took sample

of blood mixed soil and metal pieces for the


purpose of analysis. Number plate of the above

damaged taxi was also found lying on the spot.

Licence of the taxi driver, badges, two key bundles,

two diaries were seized which were found kept in the

taxi. As a result of the above blast, the CNG gas

cylinder in the taxi was broken into pieces and

the pieces of the cylinder were thrown on the

terrace of the nearby buildings within the range of

300 meters. Those pieces were collected by PSI

Bajarnag Parab (PW-45) vide panchanama (Ex-P-376).

Other taxis bearing No.MH-01.G-1652, MH-02-R-6831

and MH-02 4421 which were parked on the scene of

offence were also extensively damaged. Two-wheeler

vehicles as well as Santro Car, Maruti Car and

Indica Car bearing No.MH-01-GA-5275, MH-01 Y-5922

and MH-03-S-4785 were also damaged. Four other

taxis bearing No.MH-01-J 2127, MH-01-J-3888, MH-01-H

3327 and MH-01-H129 also got damaged due to the said

blast. There was heap of pieces of glasses of the

vehicles upto 200 meters from the scene of offence.


9. It took near about seven hours for PI Shri

Gopinath Chavan (PW-43) of L.T.Marg Police Station

for preparing spot panchanama of the scene of

offence in C.R.No.201 of 2003 in presence of panchas

Yogesh Chavan (PW-35) and Uday Zaveri. In all eleven

articles consisting licence of the taxi, blood mixed

soil, number plate of the taxi and metal pieces with

blood stains, one railway identity card etc. came to

be seized at the time of preparing spot panchanama

and those were sent to Forensic Science Laboratory

for analysis. Shops of the jewellers bearing shop

Nos.2, 6, 7, 9 and 10 to 36 were also extensively

damaged. The motor Taxi bearing No.MH-R 2022 in

which the bomb was planted was completely burnt and

skeleton of the same was taken in possession of.

Photographs of the scene of offence were taken and

video shooting of the spot was also done.

10. Last bomb explosion of the series occurred

at 13.05 hrs. on 25.8.2003 in a motor taxi bearing


No.MH-02-R-2007 which was parked on the site of Pay

& Park opposite to Hotel Taj at Gate Way of India,

P.J.Ramchandani Marg, Colaba, Mumbai-400 005. In the

said blast as many as 16 persons died on spot and 46

persons got injured. Near about 20 cars were found

parked in the above parking lot and all were

massively damaged. Glasses of the windows of Hotel

Taj which was situated on the opposite side facing

towards sea also got broken and fell on the road.

The motor taxi bearing No. MH-02-R-2007 which was

parked on the spot got burst into the pieces and was

thrown at the distance of near about 32 feet. The

impact of the explosion was so forceful due which

the lamps of the lamp-posts on the spot were broken

and there were cracks to the parapet wall of the sea

near Gate way of India. Crater was also developed

near the scene of offence and the soil and stones

found in the crater were seized under panchanama.

Officers of the Forensic Science Laboratory, Mumbai

were called on the spot after the bomb blast who


inspected the metal pieces as well as soil and

stones. Dust was spread on the nearby vehicles and

the officers of F.S.L., Mumbai took swabs of the

dust for chemical analysis. Damaged motor taxi

bearing No.MH-02-R-2007 was inspected and the

documents of the above taxi i.e insurance paper,

R.C.Book and taxi badge kept therein were seized.

11. It was police constable Shri Camilo Jokim

Reis P.C.No.27423 (PW-14) who was on duty in the

vicinity reached first on the place of offence whose

FIR (Ex-P-309) was recorded at about 13.10 hrs. by

ACP Shri Vinodkumar Sharma (PW-92) and on that basis

offence was registered at Colaba Police Station vide

C.R.No.206 of 2003 u/s 302, 307, 427 r/w 120-B of

IPC and u/s 5 and 9(b) of Explosives Act, u/s 3, 4,

5 and 6 of Explosive Substances Act, u/s 3 of Damage

to Public Property Act and u/s 3 and 4 of POTA Act,

2002. Panchanama of scene of offence (Ex-P-318) was

prepared by ACP Shri Vinodkumar Sharma (PW-92) in


presence of panchas i.e. Mukhtar Abdul Majid Shaikh

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

12. Shri Kartik Pradhan (PW-16) was serving at

Pay & Park Site near Gate way of India who had

issued parking receipt to the taxi driver of damaged

taxi bearing No.MH-02-R-2007. A receipt book (Art.

28) was seized from the possession of Kartik Prahdan

and his statement was also recorded by ACP Shri

Shelar. Kartik Pradhan informed that the above

damaged taxi bearing No. MH-02-R-2007 was parked at

Pay & Park area on the earlier day i.e on 24.8.2003

and counter foil of the parking receipt (Ex-P-316)

to that effect was shown by him which was later on

seized by the IO. He also said that the same taxi

was parked on the site of Pay & Park on 25.8.2003

and parking receipt bearing No.566 dtd. 25.8.2003

(Ex-P-312A) was shown by him and the same was also

seized by the IO. Pieces of CNG gas cylinder were

found scattered at a distance of 250 meters from the


spot and those were taken in possession of.

Photographer Shri Vasudev Kadam (PW-96) took

photographs of the scene of offence. Inquest

panchanamas of the dead bodies of sixteen deceased

persons were drawn and after seeing the dead bodies

of the deceased persons CMO of St.George Hospital,

Dr.Ashok Shinde and Dr.P.R. Ghuse of G.T.Hospital

issued provisional death certificates of the

deceased persons certifying that deceased were died

due to multiple injuries due to bomb blast. The

statements of injured persons were recorded. Their

injury certificates were collected from the

concerned hospitals. Seized articles were sent to

FSL, Mumbai for Chemical analysis.

13. It was taxi driver Shri Shivnarayan Vasudev

Pandey (PW-15) who drove taxi bearing No.MH-02-

R-2007 from the area of Western Suburb to South

Mumbai on 24.8.2003 and 25.8.2003. After the bomb

blast at Gate way of India which occurred on


25.8.2003, taxi driver Shri Shivnarayan Pandey

approached Colaba Police Station and gave

description of the passengers (suspected persons)

who travelled in his taxi on 24.8.2003 and

25.8.2003. He also produced receipt of parking

charges of his taxi MH-02-R-2007 to the officers of

Colaba Police Station which was tallied with the

counter foil of the receipt book (Art.2(28)) which

came to be seized from Kartik Pradhan (PW-16).

Statement of Shivnaryana Pandey was recorded by PI

Shelar (PW-93) of Colaba Police Station.

14. Thus in all 54 persons were killed and 244

persons became injured and the property worth Rs.

1,60,00,000/- was damaged in the above three bomb

blasts. Investigation in the above four C.Rs.

registered at concerned police stations was taken

over by the Crime Branch vide DCB CID C.R.No.157 of

2002 (C.R.No.400/02 of MIDC Police Station), C.R.No.

75 of 2003 (C.R.No.235/03 of Ghatkopar Police


Station), C.R.No.91/03 (C.R.No.201/03 of L.T.Marg

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

of Colaba Police Station).

15. Police Officers of DCB CID of Unit-XI

received secret information regarding the suspicious

behaviour of accused No.2 Ashrat and therefore

accused No.2 Ashrat was apprehended by the team of

the police officers consisting PI Savde, PSI Talekar

(PW-98), PSI Kandalgaonkar (PW-99), PSI Vankoti

(PW-97), PSI Toradmal (PW-51) and the staff members

on 31.8.2003 at about 15.30 hrs. He was thereafter

extensively interrogated by the above police

officers and during interrogation accused No.2

Ashrat admitted his involvement in Ghatkopar BEST

Bus Bomb blast. On the same day at about 20.20 hrs.

he was arrested and arrest memo(Ex-P-385) was

prepared. Personal search of accused no.2 Ashrat was

taken in presence of panchas Mukund Ingrulkar

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


came to be seized in the personal search of accused

no.2 Ashrat:

i) Motor driving licence in the name of

accused no.2 Ashrat Ansari Shafiq Ahmed

Ansari.

ii) Identity Card issued by Janata party

in the name of Arshad Ansari to be a active

member of the party.

iii) Four paper cuttings of Urdu News

Paper.

iv) A white paper chit mentioning some

matter in Urdu language on one side and on

other side the telephone No.6391553 was

mentioned.

v) A white paper chit mentioning the

name of Zahid Yusuf Patni (Accused No.4)

and his e-mail address shaabadahmed@yahoo.

com.

vi) A visiting card of Noor Electricals


owned by S.M.Hanif (Accused No.1) and

A.B.Shaikh and the mobile No.9892077831-

9892451164 of Nasir and land-line

No.28527761 of accused No.1 Hanif were

found mentioned on the overleaf of the

above visiting cards with the names Hanif

and Nasir.

vii) Seven passport size photographs, cash

amount of Rs.2,200/- and other

miscellaneous articles.

The said articles came to be seized from the

possession of accused No.2 Ashrat by PSI Toradmal

(PW-51) in presence of panchas vide seizure memo cum

custody memo (Ex-P-385). Accused No.2 was thereafter

taken to the office of Unit No.XI situated at

Kandivali.

16. Accused No.2 Ashrat was subjected to the

interrogation by the officers of unit No.XI at


Kandivli and he without any hesitation informed

to the police officers that he himself and his

associates i.e Nasir, Hanif (A-1) and Hanif's wife

Fehmida (A-3) prepared bombs and placed the same in

BEST bus of route No.336 on 2.12.2002 at Seepz and

in a BEST bus of route No.340 at Ghatkopar on

28.7.2003. He further spoke that he was ready to

show the place where the remaining material of the

explosives was kept by him. Disclosure statement

(Ex-P-393) to the above effect was prepared and

accused No.2 thereafter led police officers and

panchas towards his house on first floor of the

hutment in Juned Nagar, Juhu Galli, Andheri (West),

Mumbai. Accused entered in the room and produced a

tin box kept below the cot which contained 30

gelatine sticks, 3 alarm clocks, and 8 detonators

and those were seized by PSI Vankoti (PW-97) in

presence of panchas Sunil Bhatia (PW-53) and Sameer

Sayar vide panchanama (Ex.P-393-A).


17. Accused No.2 Ashrat was thereafter taken

back to the office of DCB CID Unit-XI by the police

offices and they were accompanied by panchas. He

thereafter informed the police officers that he

would show them the place where the bombs were

prepared by him and his associates. Accused No.2

thereafter led police officers and panchas towards

the house of accused No.1 Hanif and accused No.3

Fehmida situated at Salim Chawl, room No.D-7, Chimat

Pada, Marol, Andheri (East), Mumbai, where both the

above two accused persons (A-1 and A-3) and their

two daughters Farheen and Sakira were found present.

Accused No.2 Ashrat led police officers and panchas

towards loft of the room where bombs were prepared

by him and his associates. Police officers

thereafter took search of house of accused no.1 and

following documents came to be seized from the

cupboard of the house:

(i) Passport of accused no.1 Hanif

bearing No.Q-548661 dtd. 15.10.80 issued by


Mumbai Passport Office.

(ii) Passport in the name of accused No.1

bearing No.P-468148 dt.11.9.93 issued by

Jeddah Passport office.

(iii) Passport in the name of acused No.3

Fehmida bearing No. A-3581902 dtd. 6.8.97

issued by Mumbai Passport office.

(iv) Passport in the name of Farheen

Mohd. Hanif Sayyed (daughter of A-1 & A-3)

bearing No.A- 3525401 dtd. 6.8.97 issued

by Mumbai passport Office.

(v) Passport in the name of Irfan Hanif

Mohd. Sayyed (Son of A-1 and A-3) bearing

No. A-3527645 dtd. 8.8.97 issued by Mumbai

Passport office.

(vi) Photo identity card of a person

resident of Philton, Dubai, Jumeria.

(vii) Visiting card of Arun Vaswani

mentioning the phone numbers of Chetan,


Ashwin, Masjid, Ashrat Shafiq Ansari,

Shiraj Electricals on the overleaf of the

card.

(viii) Visiting card of Aziz in the name of

Mumbai Motors and the name of Nasir and his

mobile No.9892451164 was found mentioned on

its overleaf.

(ix) Visiting card of Noor Electrical

owned by S.M.Hanif and the name of Nasir

and his mobile No.9892077831 was found

mentioned on its overleaf.

(x) Wallet containing cash of Rs.127/-

and driver badge of Cab bearing No.62652.

18. Accused No.2 thereafter pointed a water tank

adjacent to North-East wall of the home of accused

no.1 and one gunny bag containing some material was

found kept near the water tank. On opening the gunny

bag following articles were found kept therein:

(i) 125 aluminum clips were found kept


in one cloth bag of khaki colour.

(ii) Soldering machine along with plug

and wire.

(iii) 9 alarm clocks in various sizes of

Fangseng Co.

(iv) One clipper of Super Eagle Co.(12

m.m.)

(v) One polyester Filament Yarn role of

white color.

(vi) one solder wire role.

(vii) one polyester Yarn fitting machine

(Super eagle make).

(viii) 16 crackers of red colour.

19. One cardboard box was also found kept on the

mezzanine floor and on opening the same it was found

to contain 117 gelatine sticks and � Nobel Gel - 80

necl Hingni Vardha� was found mentioned on each


stick. One corrugated box was found wrapped in a

cloth and the same was found kept on the water tank

and on opening the same it was found contained 12

electronic detonators. All the above articles were

seized by police in presence of panchas vide

panchanama (Ex.P-394-A) which was concluded at about

2.35 hrs on 1.9.2002. Accused No.1 Hanif, his wife

Fehmida and their daughter Farheen were arrested in

connection with BEST bus bomb explosion case of

Ghatkopar vide C.R.No.75 of 2003 and custody memo to

that effect were prepared. The arrested accused

persons alongwith the seized articles were taken to

the office of DCB CID, Unit XI at Kandivli.

20. After taking some rest on reaching to the

office of Unit No.XI, accused No.1 led police

officers to the place where the gelatine sticks were

hidden by him. He took police officers and panchas

towards Chimat Pada, in a lane near Maheshwari Hotel

and pointed out towards Room No.14 in Salim chawl


which was found locked. Accused No.1 Hanif opened

the lock with the key in his possession and entered

the room. He was followed by police officers and

panchas. Accused No.1 took out yellow colour gunny

bag which was found kept below the cot and 58

gelatine sticks were found contained in the bag and

the said sticks came to be sized vide panchanama

(Ex.P-395A).

21. After arrest of accused Nos.1 to 3 they were

produced before Special Court on 1.9.2003. At that

time accused No.1 made complaint of ill-health and

he was thereafter taken to Bhabha Hospital at Bandra

for medical treatment and after getting discharged

from the hospital he was produced before the Special

Court on 2.9.2003 and he was later on remanded to

police custody till 15.9.2003. Police custody remand

of accused Nos.2 and 3 was already taken on

01.9.2003. It was revealed from the school record of

accused Farheen (daughter of A-1 and A-3) that she


was minor at the time of commission of offence and

therefore she was produced before the Juvenile Court

at Dongri, Mumbai.

22. Investigation into the offence of Ghatkopar

BEST bus bomb blast was being done by ACP Shri

Walishetty (PW-103). During the police custody

remand he interrogated accused Nos. 1 to 3 and

during interrogation accused No.2 Ashrat disclosed

that he himself, accused Hanif, his wife Fehmida and

their daughter Farheen were involved in the offence

of bomb blast. Accused No.2 on 4.9.2003 expressed

his willingness to give confession. The above fact

was apprised by IO Shri Walishetty to Joint C.P.

(Crime) who directed DCP Shri Vinod Lokhande (PW-88)

of Zone-X to record the confession of accused no.2

Ashrat.

23. On 11.9.2003 ACP Walishetty produced accused

No.2 Ashrat before DCP Shri Vinod Lokhande of Zone-


X and at that time DCP Lokhande explained him that

he was not bound to make confession and if he made

the same it could be used against him. The accused

was given 24 hours time for reconsideration of his

decision to make the confession and in the meantime

he was lodged in the lock-up of Bandra-Kurla Complex

Police station. He was produced on the next day i.e

on 12.9.2003 before DCP Lokhande and he was again

apprised by the DCP that he was not bound to make

the confession and if it was made by him, the same

would be used as evidence against him. Upon such

apprisation accused no.2 said that the time given to

him for reconsideration was sufficient and he

reiterated his desire to make the confession.

Confession of accused no.2 Ashrat (part-II of the

confession Ex-501A) was recorded by DCP Lokhande as

per his say. Accused No.2 Ashrat was then produced

before Chief Metropolitan Magistrate on the same day

i.e on 12.9.2003 and his separate statement

confirming his confession was recorded by C.M.M.


Accused no.2 in the above confession gave all

necessary details pertaining to the role played by

him and his associates in the bomb blasts at

Ghatkopar, Mumbadevi and Gateway of India.

24. There were two bomb explosions on 25.8.2003.

The incident of bomb explosion near Mumbadevi Temple

took place at about 12.40 hours on the above day and

prior to that accused no.2 Ashrat communicated to

deceased accused Nasir on his mobile 9892451164

through STD booth of PW-28 Dilip Yagnik on telephone

No. 65389009 that he had kept the goods in the taxi

near Mumbadevi Temple and work will be done. Ex-

P-284 is the print out of the above call.

25. Accused Nasir had purchased SIM card of

Airtel bearing No.9892451164 from a shop i.e Raj

Electronics at Marol. Delivery challan as well as

enrollment form to the above effect which are at Ex-

P-276 and Ex-P-278 respectively were procured by IO.


Accused Nasir also purchased another SIM card of

Airtel bearing No.9892077831 from Karishma

Electronics at Marol and Ex-P-275 is the challan to

the above effect. PW-5 Ashok is the proprietor of

Karishma Electronics and PW-4 Anil is the owner of

the Raj Electronics. Their statements were recorded

by IO.

26. Police officers were in search of wanted

accused Nasir. They got concrete information that

Nasir with his associates was likely to come near

Ruparel College in a Maruti-800 Car with arms,

ammunitions and explosives on 12.9.2003. Thereafter

PSI Sachin Kadam (PW-1), API Ahir, PSI Sabnis and

the other staff members went near Ruparel college at

Matunga (West) on the above day and they laid trap.

A blue colour Maruti 800 Car was found coming there

and it was accused Nasir who was driving the said

car. Police officers asked Nasir to stop the car

but he paid no heed and the persons in the car took


out their revolvers and they started firing towards

police. In retaliation PSI Sachin Kadam (PW-01) was

compelled to open fire upon Nasir and his

associates, as a result of which Nasir and his

associate Hasan Habib sustained injuries. They were

taken to KEM Hospital in mobile van and later on

they were declared dead by the doctors. 92 gelatine

sticks, 8 detonators, 2 alarm clocks and wire cutter

were found in the dickey of Maruti 800 Car bearing

No.BLM 6184. Offence to the above effect was

registered at Shivaji Park Police Station vide LAC

No.487 of 2003 and a separate offence bearing

C.R.No.225 of 2003 was registered in the same police

station about the encounter of wanted accused Nasir

and his associate. Maruti 800 car and the explosives

kept therein were seized by Shivaji Park Police

Station. Two revolvers, mobile, two SIM Cards, two

credit cards, two driving licences, election cards

and some chits were found on the dead body of Nasir

and those articles were seized at the time of


preparing inquest panchanama (Ex-P.254).

27. On 15.9.2003 police custody of accused no.1

Hanif, accused no.2 Ashrat and accused no.3 Fehmida

was extended till 26.9.2003. On 16.9.2003 accused

Hanif and his wife Fehmida expressed their

willingness to give their confessions. Joint C.P.

(Crime) therefore directed DCP Shri Lokhande to

record the confession of accused no.1 Hanif and DCP

Mrs.Archana Tyagi was directed to record the

confession of accused no.3 Fehmida. Part-1 of the

confession (Ex-P-506) of accused No.1 was recorded

by DCP Shri Lokhande (PW-88) on 22.9.2003 and Part-

II of the confession(Ex-P-506A) of the same accused

was recorded on 24.9.2003 after following the due

procedure. Accused No.1 Hanif was then produced

before Chief Metropolitan Magistrate on 25.9.2003

and his separate statement (Ex-P-623) was recorded

by C.M.M. Confession of accused Hanif was thereafter

forwarded by C.M.M to Special court on 26.9.2003


vide covering letter Ex.P-506B.

28. Accused No.3 Fehmida was produced before DCP

Mrs.Archana Tyagi (PW-90) on 22.9.2003 and after

observing the formalities part-I of her confession

(Ex-P-522) was recorded by DCP Mrs.Tyagi. Again she

was produced before DCP Archana Tyagi on 24.9.2003

and after following the procedural formalities Part-

II of her confessional statement Ex-522-A came to be

recorded. Accused No.3 Fehmida was later on produced

before C.M.M. on 25.9.2003 and her separate

statement confirming the contents of the confession

was recorded by C.M.M. and the said statement

alongwith her confession in Part-I and Part-II were

sent by her to the Special Court.

29. During investigation the arrested accused

persons and their associates were found involved in

the commission of the above four offences.

Considering the magnitude of the offences and nature


of the criminal conspiracy hatched by the arrested

and wanted accused persons, Joint C.P.(Crime) Shri

Satyapal Singh appointed ACP Shri Suresh S.

Walishetty as chief Investigating officer to do the

investigation in connection with all the above four

offences of bomb blasts and the officers of the

concerned police stations were directed to assist

Shri Walishetty in the investigation. Accused Nos.1

to 3 were lodged in Mumbai Central Prison.

30. On 1.10.2003 test identification parade of

accused no.1 Hanif, accused No.2 Ashrat and accused

No.3 Fehmida was held at Mumbai Central Prison by

SEO Shri Waman Sapre (PW-52). PW-46 Anil Mulchand

Vishwakarma was the witness in the above parade. who

is a carpenter and on 28.7.2003 he had been to

Andheri (East) for doing work and on the same day

while returning back towards Ghatkopar in BEST bus

of route No.340 he was pushed by a man and a veiled

woman while getting down hurriedly from the BEST bus

and on that count there was quarrel in between PW-46


and the above two passengers. Accused No.2 Ashrat

and Accused No.3 Fehmida were identified by PW-46

Anil Vishwakarma as the persons who had quarrel with

him while getting down from BEST bus at Marol Pipe

Line Stop. Accused No.1 Hanif was however not

identified by the witness. Ex-P-389 is the

memorandum of the TIP prepared by SEO Shri Waman

Sapre. Accused No.3 Fehmida was later on shifted to

Byculla District Prison for woman.

31. On 11.10.2003 TIP of accused nos.1 and 2 was

again held in Mumbai Central Prison by SEO Shri

Waman Sapre in connection with C.R.No.235 of 2003 of

Ghatkopar Police Station. On the same day TIP of

Accused no.3 Fehmida was held in Byculla District

Prison. Dilip Wankhede (PW-54) was the conductor of

BEST bus of route No.340. The above witness has

identified accused no.2 Ashrat saying that it was

the same person who boarded BEST bus of route No.

340 at Andheri Bust Stop alongwith one Burkha clad


lady to whom he issued ticket for Asalpha bus stop.

The same person had taken seat alongwith the burkha

clad lady on the rear side of the bus. PW-54 Dilip

Wankhede has however not identified accused no.1

Hanif, but accused no.3 Fehmida was identified by

him as a burkha clad woman who boarded the BEST bus

of route no.340 at Andheri stop alongwith a person

who had taken BEST bus ticket for Asalpha stop. Ex-

P-391 is the memorandum of the above TIP.

32. On 06.10.2003 the identification parade of

accused No.1 Hanif and accused No.2 Ashrat was held

at Mumbai Central Prison by Special Metropolitan

Magistrate Shri Madhukar Bodke (PW-18) in C.R.No.206

of 2003 registered at Colaba Police Station. Nafiz

Ahmed Khan (PW-19), Shivnarayan Vasudev Pandey

(PW-15) and Ramchandra Shitalprasad Gupta (PW-20)

were the witnesses in the above parade.

33. PW-19 Nafiz Ahmed Khan is the owner of


garment factory situated at Juhu Lane, Samata Nagar,

Andheri (West,) Mumbai. Accused No.2 Ashrat is

residing near his shop since many years. He saw

accused no.1 many times coming to the house of

accused no.2. On 25.8.2003 accused no.1 had been to

the house of accused no.2 and the rickshaw was

wrongly parked by accused no.1 in front of the shop

of PW-19 and on that count there was quarrel in

between accused no.1 and the above witness. PW-19

Nafiz Ahmed Khan has identified accused no.2 in the

parade saying that he was the same person who was

residing adjacent to his shop since long and he was

the friend of accused no.1.

34. PW-15 Shivnarayan Vasudev Pandey is the

owner of the taxi bearing No.MH-01-R 2007 and he

himself is driving the taxi in Mumbai since the year

1982. Accused no.1 Hanif, his wife Fehmida and

their two daughters travelled in the above taxi of

PW-15 Shivnarayan Pandey on 24.8.2003 and 25.8.2003


from Azad galli, Andheri (West) to Colaba. Accused

no.1 had kept one airbag in the dickey of the taxi

and asked the taxi driver to take the taxi towards

Arthur Bunder Road at Colaba and to park the said

taxi in front of Hotel Taj in pay & park site. The

same accused had instructed the witness to stay in

the taxi till the arrival of accused no.1 and his

family members. PW-15 Shivnarayan identified accused

no.1 Hanif in the above parade saying that he was

the same person who put his airbag in the dickey of

the taxi and asked him to take the taxi towards

Arthur Bunder Road at Colaba and park the same in

front of Hotel Taj in pay & park site and should not

leave the taxi till his arrival.

35. PW-20 Ramchandra Shitalprasad Gupta has also

identified accused no.1 Hanif in the above TIP

saying that the same accused alongwith his wife and

two daughters travelled in the taxi of his friend

Shivnarayan Pandey. This witness however did not


identify accused no.2 Ashrat in the above parade.

Ex-P-323 is the memorandum of the above T.I.P. which

was held on 6.10.2003 in Mumbai Central Prison.

36. Accused no.3 Fehmida was shifted to Byculla

prison and her TIP was held on the same day i.e on

6.10.2003 by Special Metropolitan Magistrate Shri

Madhukar Bodke at Byculla District Prison. In the

above parade witnesses Shivnarayan Pandey (PW-15)

identified accused no.3 as a woman who alongwith her

husband and two daughters travelled in his taxi on

25.8.2003 and he was asked to park the taxi at

Gateway of India in pay and park site in front of

Taj Hotel. Witnesses Ramchandra Gupta (PW-20) and

Nafiz Ahmed Khan (PW-19) have also identified

accused no.3 Fehmida in the above parade. Ex-P-324

is the memorandum panchanama of the above TIP.

37. TIP of accused no.1 Hanif and accused no.2

Ashrat was again held in Mumbai Central Prison by


Special Executive Officer Shri Sudhir Surve (PW-59)

in C.R. No. 157 of 2002 of DCB CID on 8.10.2003. In

the above parade Manoj Patil (PW-60) identified

accused no.1 Hanif and accused no.2 Ashrat. Accused

no.1 was identified as a person who was in the queue

in front of him for boarding BEST bus of route No.

312 at about 5.30 p.m. on 2.12.2002 at Seepz Bus

depot and the same person handed over a cloth bag to

accused no.2 Ashrat who later on took seat on the

rear side in the above bus and thereafter accused

no.1 Hanif left the spot.

38. Shri Dilip Masram (PW-62) was the conductor

in the above bus of route No.312. He identified

accused no.2 Ashrat as a person who had a quarrel

with another passenger at Seepz Bus depot and the

quarrel was subsided by him. Same person alongwith

a cloth bag had taken the seat on the rear side of

the bus. This witness (PW-62) has however not

identified accused no.1. Ex-P-415 is the memorandum


pertaining to the above TIP prepared by SEO Shri

Sudhir Surve.

39. PW-28 Dilip Yagnik was working in STD/PCO

Booth of Kantilal Jain situated at 5, Vitthal Wadi,

Zaveri Bazar, Mumbai-400 002. This witness has

identified accused no.2 Ashrat as a person who on

25.8.2003 at about 12.10 hrs. made telephone call

from the above PCO to one Nasir saying that he had

kept the goods in the taxi near Mumbadevi Temple

and work would be done. Witness Harish (PW-30) had

been towards Mumbadevi Temple area on the above day

who wanted to hire taxi to go to his home at

C.P.Tank and on seeing the taxi halted at Zaveri

Bazar, he tried to board the taxi bearing No. MH-01

H-2022 and at that time accused no.2 shouted him

saying that taxi was not empty and the witness was

directed to go ahead and shortly thereafter there

was an explosion in the same taxi. Kunjbihari

Ramprasad Pandey (PW-29) and Kutty Manappa Shetty


(PW-33) are the hawkers doing business at Dhanji

Street Naka. Accused No.2 and Nasir had been to the

area of Dhanji Street Naka at about 6.00 p.m. on

24.8.2003 and they had a quarrel with one motor

cyclist and the quarrel was separated by the above

hawkers. Memorandum panchanama of the TIP (Ex-P-192)

to the above effect was prepared by SEO Shri

Dushyant M. Oza (PW-41) on 9.10.2003 at Mumbai

Central Prison.

40. Accused No.4 Jahid Patne was in Dubai at the

time of the above bomb blasts. He watched news item

on television pertaining to the above bomb blast

incidents in India. When he came to know that

several persons lost their lives and many persons

became injured in the above bomb blasts, he became

restless and was unable to sleep. He was repenting

for his misdeeds. He then went to local Masjid and

apprised Maulana by name Jafar Sahab that he was

repenting for his act of being participated in the


conspiracy of causing bomb blasts in India. He was

told by Maulana that due to his illegal act, the

persons including woman and children of both the

casts (Hindu and Muslim) were killed and it was

against the Muslim religion. Accused No.4 Jahid

thereafter decided to return back to India to

surrender before police. He thereafter returned to

India on 01.10.2003. He was appraised by his family

members that police from Bandra Crime Branch had

been to his house for making inquiries. Then he

along with his elder brother went to the office of

Bandra Crime Branch. Chief IO Shri. Walishetty made

inquiry with A-4 Jahid from whom he received

credible information that Jahid was one of the

conspirators of the offences of bomb blasts. He was

therefore arrested by chief IO Shri. Walishetty on

02/10/2003 in DCB, CID C.R.No.75/2003. On the same

day he was produced before the Special Court which

remanded him to police custody till 17/10/2003 which

was extended upto 30/10/2003.


41. During the course of interrogation accused

no.4 Jahid expressed his willingness on 16.10.2003

to give the confession. On 21.10.2003 he was taken

before DCP of Zone-VII Shri Dhananjay Kamlakar

(PW-12) and on that day Part-I (Ex-P-264) of his

confession was recorded. After following the due

procedure Part-II of the confessional statement (Ex-

P-264A) of the same accused was recorded by DCP Shri

Kamlakar on 23.10.2003 and on the same day he was

produced before C.M.M. Statement of accused no.4 was

recorded by C.M.M. confirming the contents of his

confession and later on statement of the accused no.

4 alongwith his confessional statement was sent to

Special Court.

42. Accused No.4 Jahid was remanded to judicial

custody on 30.10.2003.

43. The officers of DCB, CID, Unit-VII received


reliable information about the involvement of

accused no.5 Batterywala and accused no.6 Ladduwala

in the explosion of bomb blasts at Gateway of India

and Zaveri Bazaar. Both the above two accused

persons were arrested in Ghatkopar area by the

police officers of Unit No.VII on 05/11/2003 and

they were produced before the Special Court on the

same day. Special Court remanded both the accused

persons to police custody till 19/11/2003 which was

further extended till 01/12/2003.

44. During interrogation A-5 Hasan Batterywala

gave information to IO on 10.11.2003 that he would

show the place where the explosives were kept by

him. Memorandum (Ex-297) regarding the above

information was reduced to writing and thereafter

accused no.5 led IO and panchas towards his battery

shop at Kolhapur Garage, L.B.S. Road, Kurla (W),

Mumbai from where he produced 3 gelatine Sticks and

RDX powder weighing 750 gms. which was kept in one


cardboard box. Above articles came to be seized in

presence of panchas vide panchanama (Ex-P-297A).

45. On 13/11/2003 accused no.6 Ladduwala,

informed the IO that he would show the place where

the explosive material was kept by him which was

used while exploding bombs in Zaveri Bazar and at

Gateway of India. In consequence of above

information, 2 detonators came to be seized by IO

from a hut situated at Gulshan Nagar Slum Area near

Shahad Railway Station, Shahad (E), District: Thane

vide panchanama (Ex-P-291A).

46. Accused no.5 Batterywala and Accused No.6

Ladduwala on 14/11/2003 expressed willingness to

record their confession and this fact was apprised

by ACP Shri Walishetty (IO) to Joint C.P. (Crime)

who directed DCP Shri. Amitabh Gupta (PW-89) and DCP

Shri Ankush Shinde (PW-91) to record the confession

of above two accused persons. DCP (Preventive) Shri


Amitabh Gupta (PW-89) recorded part-I (Ex-P-516) of

the confessional statement of accused no.5

Batterywala on 25/11/2003 and part-II of the

confession (Ex-516A) came to be recorded on

27/11/2003 after following the due procedure. On the

same day, accused no.5 Batterywala was produced

before the Chief Metropolitan Magistrate. Part-I of

the confessional statement (Ex-P-532) of accused no.

6 Ladduwala was recorded by DCP Zone-XII Shri Ankush

Shinde on 25/11/2003 and part-II of the confession

(Ex-P-532A) was recorded on 27/11/2003. On the same

day accused no.6 Ladduwala was produced before

C.M.M. Both the accused persons narrated the whole

story before DCP involving themselves and other co-

accused persons in the commission of offence of bomb

blasts.

47. After doing the investigation of all the

four offences it was transpired that accused no.1

Sayyed Mohd. Hanif belonged to terrorist


organization i.e Lashkar-E-Toyaba committed

terrorist activities in Mumbai. He came to India

from Dubai and with the help of his wife accused

no.3 Fehmida, slain terrorist Nasir Ahmed Ansari,

accused No.2 Ashrat, accused No.5 Hasan Batterywala

and accused No.6 Rizwan Ladduwala committed

terrorist acts in Mumbai City by exploding the

bombs. In pursuance of the criminal conspiracy

hatched by accused nos. 1 to 6 and wanted accused

persons, accused No.2 Asrhat planted timer bomb in

BEST Bus bearing No. MH-01 H-8765 at Seepz on

2.12.2002 and the same accused with the help of

accused No.3 Fehmida planted bomb in BEST bus of

route No.340 on 28.7.2003. Accused No.2 on 25.8.2003

also planted bomb in motor taxi bearing No.MH-02

R-2022 near Mumbadevi and it was accused no.1 Hanif

with the assistance of his wife Fehmida (A-3)

planted bomb in motor taxi bearing No. MH-02 R-2007

which was exploded at Gateway of India at about

13.10 hrs on 25.8.2003. As a result of above three


bomb explosions 54 persons were killed and 244

persons sustained injuries and property worth Rs.

1,60,00,000/- was damaged.

48. After procuring the reports of Forensic

Science Laboratory and reports of Joint Controller

of Explosives regarding the examination of seized

material and after getting postmortem reports/

Provisional Cause of Death Certificates of the

deceased persons and the injury reports of the

injured persons and after receipt of the consent of

the Central Government for prosecution of the

accused persons under the provisions of the

Explosive Substances Act, 1908 and after receipt of

the reports from various agencies regarding the

assessment/valuation of the damaged property, the

Chief Investigating Officer ACP Shri. Walishetty

submitted proposal to Government of Maharashtra for

according sanction to prosecute the accused persons

under the provisions of Prevention of Terrorism Act,


2002. After having examined the material placed

along with the proposal, the Government of

Maharashtra on 04/02/2004 pleased to accord sanction

to prosecute accused nos.1 to 6 under section 3, 4,

5(1) and 20 of Prevention of Terrorism Act, 2002.

49. After getting order of sanction under

section 50 of POTA 2002, IO Shri Walishetty filed

chargesheet against accused Nos.1 to 6 under section

120-B r/w sec. 302, 307, 326, 324 IPC, u/s 3, 4, 5

of Explosive Substances Act 1908, u/s 5 and 9(B) of

Indian Explosives Act 1884, u/s 3, 4, 5 and 20 of

Prevention of Terrorist Act, 2002, and accused

Shafakat, Abid, Khalid, Maqsud, Jahangir, Bilal,

Samiulla and Rehman are shown as wanted accused in

the chargesheet.

50. On the basis of the chargesheet referred

above, this court took cognizance of the offences

referred in the cahrgesheet on 5.2.2004 and on the


same day copies of the chargesheet were supplied to

all the accused persons and thereafter accused nos.

1 to 6 were sent to judicial custody as per sec.

309(2) of Cr.P.C.

51. On 5.5.2004 Investigating officer Shri

Walishetty and Spl.P.P. Mr.Ujjwal Nikam made

application Ex-P-2 under section 307 of Cr.P.C. for

tendering pardon to accused No.4 Jahid Patne. My Ld.

Predecessor after making inquiry into the above

request of Spl.P.P. came to the conclusion that

evidence of accused no.4 is essential for the just

decision of this case and it is therefore necessary

to grant him pardon upon condition of his making

full and true disclosure of all the facts and

circumstances of the case. Accused No.4 Jahid became

ready to comply with the above condition for

accepting the pardon. After showing willingness to

the above effect by accused no.4 Jahid Patne he was

tendered pardon by this court as per section 307 of


Cr.P.C. and therefore he was examined as approver

(PW-2) by the prosecution. After recording the

evidence of approver (PW-2 Jahid) his bail

application bearing No.23 of 2005 was allowed by

this court on 30.9.2005.

52. After going through the chargesheet and

after hearing the Spl.P.P. and counsels appearing

for the accused persons, this court on 29.6.2004

pleased to frame the charge(Ex-P-5) against accused

persons viz. Sayyed Mohd. Hanif Abdul Rahim (A-1),

Ashrat @ Arshad Shafiq Ahmed Ansari (A-2), Fehamida

w/o Sayyed Mohd. Hanif (A-3), Mohd.Hasan Mohd.Anas

Shaikh @ Hasan Batterywala (A-4) and Mohd.Rizwan

Mohd. Issaq ansari @ Rizwan Ladduwala (A-5) under

section 120-B of IPC, 120-B of IPC r/w sec. 302, 307

and 427 of IPC, 120-B of IPC r/w sec. 3(2) and 3(3),

4, 5(1) and 20 of the Prevention of Terrorism Act,

2002, under sec. 3 and 4 of Damage to Public

Property Act, 1984, under sec. 3, 4, 5 and 6 of


Explosive Substances Act, 1908 and under sec. 5 and

9(B) of Explosives Act, 1884. Accused Nos.4 and 5

have been charged separately under sec. 3 of

Explosive Substances Act, 1908. The charge was read

over and explained to the accused persons in their

mother tongue to which they pleaded not guilty and

their statements denying charges have been recorded

separately. The cross-examination of IO,

examination of the accused Nos. 1 to 3 under section

313 of Cr.P.C. and the defence evidence led by them

disclose that the defence of accused Nos. 1 to 3 is

of false implication.

53. In response to the application moved by the

prosecution u/s.294 of Cr.P.C. defence have admitted

the genuineness of the Cause of Death Certificates,

Provisional Death Certificates, Postmortem Notes and

Inquest Panchanamas of deceased persons as well as

the medical Certificates of the injured persons and

therefore these documents have been exhibited. List


of 54 deceased persons is given below whose cause of

death certificates are exhibited as under :

Sr.No. Name of the deceased Exhibit No.

1 Vilas Mahindrakar P-19 colly

2 Shivbali Yadav P-20 & P-21

3 Riyabhai Bharwad P-8

4 Ranchodbhai Bharwad P-89

5 Nagjibhai Bharwad P-90

6 Revabhai Bharwad P-91

7 Iqbal Gani P-92

8 Iqbal (Full name not known) P-93

9 Amarbhai Bharwad P-94

10 Jaysingh Mallah P-95

11 Jagmalbhai Bharwad P-96

12 Krushna Thakur P-97

13 Smt.Salu Yadav P-98

14 Poonabhai Bharwad P-99

15 Hanmanta Yadav P-100

16 Kukabhai P-101

17 Laxmi Yadav P-102

18 Unknown P-103

19 Smt.Lata Jadhav P-104

20 Vinod Jain P-193

21 Sadik Sharif P-194

22 Arvind Maji P-195

23 Anand Dey P-196

24 Parmeshwar Tiwari P-197

25 Dongarshi Palan P-198

26 Babulal Purohit P-199


Sr.No. Name of the deceased Exhibit No.

27 Ishta Narayan Tiwari P-200

28 Surendra Pandey P-201

29 Arun Gadgil P-202

30 Gokul Hussain Shaikh P-203

31 Harshbahadur Shyam Singh P-204

32 Umeshchandra Upadhyay P-205

33 Mohd. Islam Ansari P-206

34 Shaikh Ibrahim P-207

35 Mridul Mandal P-208

36 Ramdas Dubey P-209

37 Gorakhnath Sutar P-210

38 Mohini Rakhade P-211

39 Tapan Das P-212

40 Jatashankar Dubey P-213

41 Jitendra Dubey P-214

42 Vishwanath Dhoda P-215

43 Gayatri Verulkar P-216

44 Vinod Bhosale P-217

45 Laxmi Kule P-218

46 Hari Wedekar P-219

47 Sandeep Karwade P-220

48 Mohd. Sohail Vadiwala P-221

49 Surjeet Sasmal P-222

50 Indrajit Ghosh P-223

51 Omnath Dhuria P-224

52 Ramsurat Chauhan P-225

53 Ishwar Bharate P-226

54 Smita Bansode P-227


54. Exhibit-16 and 17, Exh.80 to 85 and Exh.156

to 191 are the inquest panchanamas of the deceased

persons referred above. The genuineness of the

injury certificates of the following persons have

not been disputed and therefore those documents have

been exhibited; list of which is given below.

1. Yogesh Khsirsagar. (Exh.22)

2. Vinayak Kamat. (Exh.23)

3. Indramani Pal. (Exh.24)

4. Viren Shrinath. (Exh.25)

5. Ram Murat Yadav. (Exh.26)

6. Ashok Singh. (Exh.27)

7. Mukund Panase. (Exh.28)

8. Naresh Arora. (Exh.29)

9. Raghunath Mulya. (Exh.30)

10. Rahul Mane. (Exh.31)

11. Kisan Bhikaji. (Exh.32)

12. Shivaji Mali. (Exh.33)

13. Prakash Chaudhari. (Exh.34)

14. Nishan Das. (Exh.35)

15. Vilas Harishchandra(Exh.36)

16. Nilam Jadhav. (Exh.37)

17. Pratap Shivshankar (Exh.38)

18. Mohd.Ibrahim Shaikh(Exh.39)


19. Ram Gopal Kedarnath(Exh.40)

20. Mahesh Chaurasia. (Exh.41)

21. Ravinchandra Lotia (Exh.42)

22. Atul Keria. (Exh.43)

23. Vivek Mahindrakar. (Exh.44)

24. Rahil Khan. (Exh.45)

25. Govind Singh. (Exh.46)

26. Pratap Jha. (Exh.47)

27. Mohd.Vaseem Abdul Hanid (Exh.48)

28. Haribhai Ramchandra(Exh.49)

29. Gangubai Sadashiv (Exh.50)

30. Pravin Abhimanyu. (Exh.51)

31. Santosh Ambolkar. (Exh.52)

32. Manish Singh. (Exh.53)

33. Vasdant Bondre. (Exh.54)

34. Dilip Wankhede. (Exh.55)

35. Manohar Matondkar. (Exh.56)

36. Haridev Yadav. (Exh.57)

37. Abdul Rehman. (Exh.58)

38. Shamji Varma. (Exh.59)

39. Baban Bhapkar. (Exh.60)

40. Kalpesh Vengurlekar(Exh.61)

41. Salim Altaf. (Exh.62)

42. Ganpat Ghame. (Exh.63)

43. Dyandev Daund. (Exh.64)

44. Anil Vishwakarma. (Exh.65)

45. Rahul Maruti. (Exh.66)


46. Mukeshbhai Kothari (Exh.67)

47. Naresh Arora. (Exh.68)

48. Veljibhai Shah. (Exh.69)

49. Ramesh Bhanushali (Exh.70)

50. Rajul Kisan Gaikwad(Exh.71)

51. Gopinath Palange. (Exh.72)

52. Parshuram Wadkar. (Exh.73)

53. Oval Khan. (Exh.74)

54. Shantaram Gurav. (Exh.75)

55. Abdul Khan. (Exh.76)

56. Sridhar Naidu. (Exh.77)

57. Kalpesh Gala. (Exh.78)

58. Sunil Vispute. (Exh.79)

59. Ravindra Gupta. (Exh.P-105)

60. Kasiben. (Exh.P-106)

61. Nisha. (Exh.P-107)

62. Mahesh Lakhme. (Exh.P-108)

63. Ramkisan Verma. (Exh.P-109)

64. Ashok Shinde. (Exh.P-110)

65. Vijay Khande. (Exh.P-111)

66. Prabhakar Kedare. (Exh.P-112)

67. Kisan Chavan. (Exh.P-113)

68. Master Ashwin. (Exh.P-114)

69. Master Ambadas Chavan (Exh.P0115)

70. Savita Yadav. (Exh.P-116)

71. Suhagi Bibi. (Exh.P-117)

72. Roshanlal Tiwari. (Exh.P-118)


73. Maniben. (Exh.P-119)

74. Kishor Shinde. (Exh.P-120)

75. Anil Lalwani. (Exh.P-121)

76. Amit. (Exh.P-122)

77. Sikander Tiwari. (Exh.P-123)

78. Rajiv Mahato. (Exh.P-124)

79. Abdul Qayoom. (Exh.P-125)

80. Navin Shrif. (Exh.P-126)

81. Lokesh. (Exh.P-127)

82. Ramesh Tayanna Andhrij (Exh.P-128)

83. Fakir Kadir. (Exh.P-129)

84. Arif Sayyad. (Exh.P-130)

85. Anita Sachdeva. (Exh.P-131)

86. Pravin Janu. (Exh.P-132)

87. Ramesh Kitto. (Exh.P-133)

88. Ramesh Ghadigaonkar. (Exh.P-134)

89. Daval Nanna. (Exh.P-135)

90. Sham Sunder Gowd. (Exh.P-136)

91. Vijay Singh. (Exh.P-137)

92. Raju. (Exh.P-138)

93. Salauddin Ibrahim Shaikh (Exh.P-139)

94. Gorakh Deshmukh. (Exh.P-140)

95. Haresh Soni. (Exh.P-141)

96. Kamabhai. (Exh.P-142)

97. Shaikh Ibrahim. (Exh.P-143)

98. Sakpal Shivaji. (Exh.P-144)

99. Laxmikant Dubey. (Exh.P-145)


100. Sudhakar N.Gowda. (Exh.P-228)

101. Firoz Ahmed Sharif (Exh.P-229)

102. Salim Ahmed. (Exh.P-230)

103. Mr.Mohammad Ismael Ansari (Exh.P-231)

104. Mr.Imran Suleman Jariwala. (Exh.P-232)

105. Mr.Ajmal Juber Khan. (Exh.P-233)

106. Maimoona Ashfaq Chasmawala. (Exh.P-234)

107. Mrs.Rubina Amin Pinwala. (Exh.P-235)

108. Mr.Kapil Dilip Ruparel. (Exh.P-236)

109. Mr.Raju Sawant. (Exh.P-237)

110. Bhavesh Sumanchandra Joshi. (Exh.P-238)

111. Mr.Rintu Das. (Exh.P-239)

112. Mr.Pravinkumar Bhat. (Exh.P-240)

113. Mr.Rakeshlal Shankar Vyas (Exh.P-241)

114. Mr.Sharad Jawar (Exh.P-242)

115. Mr.Mukesh Tolani (Exh.P-243)

116. Mr.Dipak Vadhani (Exh.P-244)

117. Mr.Vijay Laxmijant Mishra (Exh.P-245)

118. Mr.Sarvedar Dubey (Exh.P-246)

119. Mr.Vinaykumar Dubey (Exh.P-247)

120. Mr.Rupesh Rampad Sasmal (Exh.P-457)

121. Mr.Hukum Singh. (Exh.P-458)

122. Mr.Ram Asure. (Exh.P-459)

123. Mr.Faizan Khan. (Exh.P-460)

124. Mr.Shivkumar. (Exh.P-461)

125. Mr.Arvind Kumar (Exh.P-462)

126. Mr.Pakash Anil Shete (Exh.P-463)


127. Haresh Pujari. (Exh.P-464)

128. Mr.Maruti Ithape. (Exh.P-465)

129. Mr.Ragu Adhikari (Exh.P-466)

130. Mr.Chandrabhan Pahtida (Exh.P-467)

131. Mr.Anand Gauda. (Exh.P-468)

132. Mr.Shailendra Gupta. (Exh.P-469)

133. Mr.Arun Kumar Rawal. (Exh.P-470)

134. Mr.Agrundar Gupta (Exh.P-471)

135. Mr.Rajaram Krishna Chaguule. (Exh.P-472)

136. Mr.Rakesh Chourasiya. (Exh.P-473)

137. Mr.Sinkan Yadav. (Exh.P-474)

138. Mr.Keshav Pujari. (Exh.P-475)

139. Mr.Sunil M.Khade. (Exh.P-476)

140. Mr.Hanumant More. (Exh.P-477)

141. Mr.Anilkumar Gupta. (Exh.P-478)

142. Mr.Subrato Mandal. (Exh.P-479)

143. Smt. Santa Sadhan Gharui (Exh.P-480)

144. Mr.Boomanji Pujari (Exh.P-481)

145. Mr.Bhulan Gaud. (Exh.P-482)

146. Mr.Vijay Kate. (Exh.P-483)

147. Smt.Kamla Maurya. (Exh.P-485)

148. Mr.Suleman Abdulla (Exh.P485)

149. Mr.K.M.SDhetty. (Exh.P-486)

150. Smt.Kashiben Lalji (Exh.P-487)

151. Mr.Ramesh Gauda (Exh.P-488)

152. Mr.Premchand Yadav.(Exh.P-489)

153. Mr.Navinbhai Soni (Exh.P-490)


154. Mr.Alpesh More. (Exh.P-491)

155. Smt.Nori Bniad B.Handria. (Exh.P-492)

156. Mr.Lalsaheb Tolokdha Singh.(Exh.P-493)

55. During the course of investigation,

Investigating Officer seized blood stained clothes

of injured and deceased persons under common

panchanama Exhibits 15, 18 and 147 to 152. Apart

from the above documents, the map of place of

offence of DCB CID CR No.157 of 2002, CR. No.75 of

2003, CR No.91 of 2003 and CR No.86 of 2003 have

also not been disputed by the defence, therefore,

these documents are marked as Exh.P-13, Exh.P-14,

Ex.P-146 and Ex.P-307A respectively. During

investigation seized RDX was destroyed and

panchanama to that effect prepared on 13/08/2004 has

also not been disputed by the accused and therefore

it is marked as Exh.P-294 colly.

56. Prosecution has examined as many as 103

witnesses, out of which the role of 43 witnesses is


referred above. Prosecution has also examined 28

witnesses i.e PW-23, PW-25, PW-34, PW-36 and PW-64

to PW-87 on the point that their nearest relatives

lost lives in the twin bomb blast dtd. 25.8.2003.

Apart from the above witnesses PW-3 Rajendra Pawar,

PW-4 Anil Parmar, PW-5 Ashok Sakpal, PW-6 Manoj

Patil and PW-7 Ghanshyam Dubey have been examined on

the point of purchase of SIM cards of Airtel bearing

No. 9892451164 and 9892077831 by Nasir and accused

no.1 Hanif. PW-11 Jyotsna Chandratre was the

Special Executive Officer who held TIP of

photographs of slain terrorist Nasir at Colaba

Police Station on 3.1.2004. PW-13 Pandit Bhandalkar

has prepared the sketch of the scene of offences in

CR No.91 of 2003 and in CR No.206 of 2003. PW-16

Kartik Pradhan had issued parking receipt to taxi

driver PW-15 Shivnarayan Pandey pertaining to the

parking of his vehicle at � Pay and Park� in front of

Hotel Taj at Gateway of India, Mumbai on 24.8.2003

and 25.8.2003. PW-48 Sambhaji is examined by


prosecution on the point that he has performed last

rites on the dead body of his brother-in-law Vilas

who succumbed to the injuries in Ghatkopar blast

dtd. 28.7.2003.

57. PW-21 Amit Patkar, PW-22 Salauddin Shaikh,

PW-24 Ramabhai Bharwad, PW-37 Sonaba, PW-38 Deepak

Wadhwani and PW-49 Kalpesh sustained injuries in the

above bomb blast. PW-26 PI Rajaram Joshi had drawn

spot panchanama in CR NO.86 of 2003. PW-28 Dilip

Yagnik is examined on the point that he was working

in the PCO situated in Zaveri Bazar who had over

heard the telephonic communication in between

accused no.2 Ashrat with his associate Nasir. Blood

stained clothes of complainant in CR No.91 of 2003

were seized in presence of PW-39 Jaya Shetty. PW-44

Shyamrao Jedhe was working as ACP of Pydhonie

Division who did part of investigation in CR No.91

of 2003. BEST Bus conductor Shri Sanjay Patil is

examined as PW-55 as he has lodged FIR in DCB CID CR


No.157 of 2002. District Magistrate, Mumbai

Dr.Pradeep Vyas is examined as PW-100 to prove the

consent Ex.P-565 for lodging prosecution against the

accused persons under the provisions of [The]

Explosive Substances Act, 1908 in connection with

DCB CID CR No.86 of 2003 and CR No.91 of 2003. The

evidence of District Magistrate, Mumbai Suburban

District Shri Sambhaji Zende is recorded as PW-101

to prove the consent (Ex.P-568 colly) for launching

prosecution against the accused persons in

connection with DCB CID CR No.157 of 2002 and 75 of

2002. Shri Prakash Hirlekar (PW-102) Dy. Secretary

Home Department, Mantralaya, Mumabi is examined to

prove the sanction (Ex-P-573) for prosecuting

accused persons under the provisions of POTA 2002.

Lastly the evidence of chief investigating officer

ACP Shri Suresh Walishetty is recorded as PW-103.

58. PW-1 Sachin Kadam was working as PSI in Unit

No.II of the Crime Branch who was one of the members


of the trap party to apprehend terrorist Nasir who

was killed in the encounter on 12.9.2003 near

Ruparel College, Matunga, Mumbai. Jahid Yusuf Patne

was earlier prosecuted as accused No.4 and after

granting him pardon under section 307 of Cr.P.C., he

has been examined as approver as PW-2.

59. PW-14 Police Constable Camillo is examined to

prove the FIR lodged by him at Colaba Police Station

in connection with the bomb blast occurred at

Gateway of India on 25.8.2003 and the same was

recorded by PW-92 ACP Vinodkumar Sharma.

60. PW-15 Shivnarayan Pandey is a taxi driver and

owner of the taxi bearing No. MH-02 R 2007 in which

accused No.1, 3 and their daughters travelled from

their house at Andheri towards Southern Mumbai on

24.8.2003 and 25.8.2003 and they had planted

explosive material in the same taxi and directed the

taxi driver to park the vehicle in � Pay and Park�


area in front of Hotel Taj at the time of the

explosion of the timer bomb. PW-16 Kartik Pradhan

had issued parking receipt to PW-15 Shivnarayan

Pandey pertaining to the parking of his vehicle at

� Pay & Park� in front of Hotel Taj at Gateway of

India, Mumbai on 24.8.03 and 25.8.03. PW-17 Mukhtyar

Abdul Majeed Shaikh is the panch witness of the spot

panchanama in CR No.86 of 2003. PW-18 Special

Executive Magistrate Shri Madhukar Bodke held TIP of

accused No.1 Hanif and accused No.2 Ashrat in Mumbai

Central Prison on 6.10.2003 and Nafiz Ahmed Khan,

Shivnarayan Pandey and Ramchandra Gupta are

examined as PW-19, PW-15 and PW-20 who identified

the above accused persons. TIP of the accused no.2

Ashrat was held in MCP on 9.10.2003 and witnesses

Dilip Yagnik, Harish Popat, Shivbabu Mishra,

Kunjbihari Pandey and Kutty Shetty have been

examined on the point of identification of the above

accused. PW-52 Waman Sapre is examined as Special

Executive Officer who held TIP of accused Nos. 1 to


3 in Mumbai Central Prison on 1.10.2003 in

connection with Ghatkopar BEST Bus bomb blast and

Anil Vishwakarma (PW-46) and Dilip Wankhede (PW-54)

were the witnesses in the above parade.

61. Panchanama of scene of offence in connection

with Ghatkopar BEST Bus blast was prepared by PW-47

PI Ramesh Patil. Bus passenger Vilas Vishnu

Mahindrakar succumbed to the injuries in the above

blast dtd. 28.7.2003 and his brother-in-law Sambhaji

Sadashiv (PW-48) performed last rites on the dead

body of deceased Vilas. One Kalpesh Gala suffered

injuries in the above blast whose evidence is

recorded as PW-49.

62. PI of Crime Branch, Social Service Shri

Rajaram Joshi has drawn the spot panchanama in CR

No.86 of 2003 whose evidence is recorded as PW-26.

PW-27 Lalasahab Singh has lodged FIR to L.T.Marg

Police Station pertaining to the bomb blast


occurred in Zaveri Bazar on 25.8.2003 which was

recorded by PW-42 PSI Suryakant Naikwadi. Soon

before the bomb blast in Zaveri Bazar, accused No.2

Ashrat made communication with wanted accused Nasir

through phone in PCO and PW-28 Dilip Yagnik who was

working in the said PCO is examined by the

prosecution to have over heard the above

communication. Culprits had planted explosives in a

motor taxi bearing No.MH-02 R 2022 in Zaveri Bazar

and the taxi was blown at noon time on 25.8.2003

killing several persons. Panchanama of the above

taxi was prepared in presence of PW-35 Yogesh

Chavan. Umeshchandra Upadhyay was the driver of the

said taxi who succumbed to the injuries on the spot

and his dead body was identified by his father PW-32

Indramani Upadhyay and another taxi driver viz.

PW-31 Pyareshyam Tiwari.

63. In all 177 Photographs of injured and deceased

persons were taken by photographer Shankar Sawant


who is examined as PW-40. Blood stained clothes of

complainant in CR No.91 of 2003 were seized in

presence of PW-39 Jaya Shetty and the spot

panchanama in above CR was prepared by PW-43 PI

Gopinath Chavan. Part of the investigation in CR

No. 91 of 2003 was conducted by ACP of Pydhonie

Division Shri Shyamrao Jedhe whose testimony is

recorded as PW-44. Gas cylinder kept in motor taxi

in MH-02 R 2022 was blown in the explosion and its

pieces were found lying on the terrace of the nearby

buildings which were seized by PW-45 API Bajrang

Parab.

64. FIR in DCB CID CR No.157 of 2002 was lodged by

BEST bus conductor PW-55 Shri Sanjay Patil on

2.12.2002 and it was recorded by PW-63 PI Tanaji

Jadhav. Live bomb was found kept in BEST bus bearing

No.MH-01 H 8527 and on that point evidence of

Assistant Security Officer of BEST Shri Michael

D'souza is recorded as PW-56. Same time bomb was


defused by PSI Shri Girish Gode (PW-58) of BDDS

Squad. Residues of defused bomb were seized under

panchanama in presence of PW-57 Ramsurat Shukla.

65. Accused persons also led defence evidence.

Accused No.1 Sayyed Mohd.Hanif examined himself on

oath as DW-4 and also examined two witnesses i.e

Ex-Commissioner of Police, Mumbai, Shri Ranjitsingh

Sharma (DW-5) and Ex-Home Minister of the State Shri

Chagan Bhujbal (DW-6). Accused No.5 Mohd.Hasan @

Hasan Batterywala is examined as DW-1 and in support

of his evidence he has examined his son Shaikh Mohd.

Ismail as DW-2. Accused No.5 Mohd. Hasan Batterywala

has also examined ACP Sadashiv Patil as DW-3 to

point out that statement of PW-8 Ajmeri Mohd. Ali

Shaikh was recorded by him in connection with bomb

blast incident in Mumbai dtd. 11.7.2006. Defence has

also relied upon as many as 124 exhibits.


66. Apart from the oral evidence referred above

prosecution has also placed reliance upon 624

documents which have been referred herein above and

also produced 140 articles of muddemal property.

67. I have heard Spl.P.P. Mr.Ujjwal Nikam for the

prosecution. Adv. Wahab Khan is heard on behalf of

accused no.1 Hanif and Adv.Kunjuraman advanced

argument for accused no.2 Ashrat. Argument of

Adv.Pasbola is heard for accused No.3 Fehmida.

Defence counsels for accused Nos. 1 to 3 have also

submitted memorandum of arguments.

68. After having gone through the charge framed

against the accused persons and after hearing the

arguments advanced on behalf of the prosecution and

on behalf of the defence, following points arise for

my determination and I have recorded my findings

thereon as per the reasons given below :


POINTS

1. Does prosecution prove

that accused nos.1 to 3,

PW-2 Jahid (original

accused no.4 who turned to

be approver) and deceased

Nasir alongwith wanted

accused persons in the

month of August-2002 at

Dubai agreed to do or

caused to be done an illegal

act to wit; of doing

terrorist acts i.e. by

exploding bombs at

prominent crowded places in

Mumbai in such a manner so

as to cause death of several

persons and to cause damage

to public and private

properties with a view to

strike terror in the minds

of the people and thereby

accused persons have

committed an offence

:

FINDINGS

Accd.No.1 Hanif, PW2

Jahid,deceased Nasir

and wanted accused

persons hatched

criminal conspiracy

partly at Dubai in

the month of August

2002 in the house of

Nasir at Dubai and

after returning back

Accd. No.1 and Nasir

to India, they along

with Accd.No.2 and 3

held several consp-

iracy meetings in the

house of Accd. No.1

at Mumbai for

chalking out detail

plan for doing bomb

blasts at crowded

places in Mumbai.

Thus conspiracy of

doing terrorist acts

in Mumbai was


punishable under section

120-B of IPC?

2.Whether previous sanction

of the Central Govt u/s 188

of Cr.P.C. is necessary for

trial of the accused

persons of the offence u/s

120-B of IPC ?


that accused no.2 Ashrat

was found in unauthorized

possession of hazardous

explosive substances in his

house at 22.40 hrs. on

31.8.2003 ?

4. Does it prove that

accused nos.1 and 3 were

found in unauthorized


explosive substances in

:

:

hatched partly in

Dubai and partly in

Mumbai.

In the negative.

In the affirmative.


their house R.No.D-7 Salim

Chawl, Chimat Pada on

1.9.2003 at 2.35 hrs.?

5. Does it further prove

that on 1.9.2003 at 7.50

hrs accused no.1 Hanif was

found in unauthorised


explosive substances in a

room occupied by him

bearing R.No.14 Salim

Chawl, Chimat Pada ?


that accused Nos.1 to 3,

and deceased Nasir in

pursuance of the above

criminal conspiracy,planted

timer bomb below the rear

seat in BEST Bus of route

No.312 (336) bearing

No.MH-01 H-8765 near

Seepz BEST

:

:

In the affirmative.

In the affirmative.

In the affirmative.


Bus Depot, MIDC, Andheri(E)

in the evening of 2.12.2002

with intent to kill maximum

number of persons trave-

lling in the above bus and

to cause loss to the public

and private properties ?


that accused Nos.1 to 3

and deceased Nasir in



a timer bomb in a BEST bus

of route No. 340 bearing

No. MH-01 H 8246 which was

exploded at about 21.10

hrs. on 28.7.2003 at Karani

Lane Junction,Ghatkopar(W),

Mumbai causing the death of

two persons and injury to

60 passengers and also

: In the affirmative.


causing damage to public

and private property worth

Rs.16.30 lacs ?

8. Does prosecution further

prove that accused nos.1 to

3, and deceased Nasir in



timer bomb in a motor taxi

bearing No.MH02-R2022 which

was kept waiting at the

junction of Dhanji Street,

Yusuf Ali Road, in front of

Sagar Juice Centre, Near

Mumbadevi Temple, Mumbai on

25.8.2003 at noon time and

the powerful bomb kept in

the above taxi was exploded

at 12.40 hrs. causing the

death of 36 persons and

injury to 138 persons and

also caused damage to

:

: In the affirmative.


public and private

properties worth Rs.95

lacs?

9. Whether it is proved by

the prosecution that

accused Nos.1 to 3 and

deceased Nasir in pursuance

of above criminal conspi-

racy, kept timer bomb in

airbag and airbag was kept

in the dickey of motor taxi

bearing No.MH02-R2007 which

was parked in � pay & Park�

site opposite Hotel Taj at

Gateway of India, P. J.

Ramchandani Marg, Colaba,

Mumbai-400 005 on 25.8.2003

and the said bomb was

exploded at 13.05 hours

killing 16 persons and

causing injuries to 46

persons and causing huge

damage to public and

private properties ?

:In the affirmative.


10. Whether the sanction

Ex-P-573 dated 4.2.2004

accorded by Government of

Maharashtra u/s 50 of POTA

2002 to prosecute the

accused persons is valid

and legal ?

11. What offences if any,

accused Nos.1 to 3 have

committed ?

:

:

Yes.

Accused Nos.1 to 3

are held guilty of

the offences u/s.

120-B, 120-B r/w.

Sec.302 of IPC, 120-B

r/w. Sec.307 of IPC,

120-B r/w. Sec. 427

of IPC, 120-B of IPC

r/w. Sec. 3(2)(a) of

POTA 2002, u/s. 3(3)

and u/s. 4(b) of POTA

2002, u/s. 5 r/w.

Section 9-B of

Explosives Act 1884,

u/s. 3 and 4 of

Explosive Substances


12. What order ?

:

Act 1908, u/s. 3 and

4 of Prevention of

Damage to Public

Property Act, 1984.

As per final order.

R E A S O N S

69. Since all the above points are closely

connected to each other therefore, it is better to

discuss them jointly.

Following are the undisputed facts.

i) A timer bomb was found in BEST Bus of

route no.336 on 2.12.2002 at SEEPZ BEST Depot.

ii) There was explosion of timer bomb in

BEST Bus of route no.340 at LBS Road junction,

Ghatkopar (West), Mumbai, as a result of which two

passengers were killed and 60 persons became injured


and public and private property was damaged.

iii) Third and fourth bomb blast took

place on one and the same day i.e. on 25.8.2003 at

Zaveri Bazar near Mumbadevi Temple and Gateway of

India opposite Hotel Taj at noon time.

iv) Timer bomb kept in motor taxi bearing

no.MH-02 R-2002 at Zaveri Bazar was exploded on

25.08.2003 at 12.40 hours resulting into the death

of 36 persons and 138 persons became injured and

huge private and public property was damaged

including vehicles, shops and residential houses

etc.

v) Timer bomb planted in motor taxi

bearing no.MH-02 R-2007 parked on the site of Pay &

Park, near Gateway of India was exploded on

25.08.2003 at 13.05 hours resulting into the death

of 16 persons and 46 persons became injured.

Vehicles parked in the said area were also

extensively damaged.


EVIDENCE PERTAINING TO THE SCENE OF OFFENCE

70. PW-57 Ramsurat Mataprasad Shukla is a panch

witness of the recovery panchanama (Ex.P-410)

pertaining to the articles which came to be seized

at SEEPZ Bus Terminal, Central Road, MIDC, Andheri,

Mumbai. According to this witness following articles

were seized from the scene of offence.

(1) One piece of detonator (Art-30)

(2) Gelatine stick (Art-31)

(3) Battery @ two wires (Art-32)

(4) Green colour polythene bag(Art-33-C)

(5) Yellow colour plastic bag (Art-34)

(6) White colour polythene bag (Art-35)

(7) Electronic switch @ attached two wires

(Art-36)

(8) Green colour chunni (Art-37)

(9) Multi colour cloth (Art-38)

(10) Broken cardboard shoes box (Art-39)

(11) Piece of white cloth (Art-40)

(12) Piece of blue colour cloth (Art-41)

(13) Black colour washer (Art-42)

(14) Grey colour bag (Art-43)


(15) Piece of string (Sutli) (Art-44)

71 PW-57 has identified the above articles in

Court when shown to him. The evidence of P.W.57 to

the above effect remained unchallenged by accused

no.2 and 3. It is suggested to this witness on

behalf of accused no.1 that the seizure panchanama

(Ex.P.410) of above articles was already prepared

by police and later on his signature was obtained on

the same. This suggestion is denied by the witness.

Accused no.1 has claimed ignorance when the question

to the above effect (Que. No.952) was put to him by

the Court in his examination u/s. 313 of Cr.P.C.

72. PW-55 Sanjay Patil has lodged FIR to MIDC

Police Station in connection with planting of timer

bomb in BEST bus of route no.336 at SEEPZ Bus Depot.

He has testified to the effect that Bomb Disposal

Squad from Delhi visited the scene of offence and

the bomb was defused by them. He saw 14 gelatine

sticks, detonator, battery cell, battery pieces,


string and cloth on the scene of offence. All the

three accused persons have declined to cross examine

the above witness. The unchallenged testimony of

P.W.55 pertaining to the findings of the above

articles on the spot corroborate to the testimony of

P.W.57. It is therefore proved that the above 15

articles were found on the spot and those were later

on seized by IO in the presence of P.W.57 in

connection with DCB CID CR No.157 of 2002.

73. PW-47 PI Ramesh Patil of Ghatkopar Police

Station deposed that he received message at 21.10

hrs on 28.7.2003 that there was explosion of bomb in

BEST bus of route no.340. Immediately thereafter he

alongwith duty officer PSI Jadhav rushed to the spot

with two panchas. Rear portion of BEST bus was found

completely damaged. Pieces of glasses were

scattered and blood stains were fallen on them.

Detail panchanama to that effect was prepared by him

vide Ex.P.-380. Contents of spot panchanama


(reference of which is made in para 7) has been

narrated by this witness in detail. It is revealed

from his evidence that one of the panch witnesses of

Ex.P-380 i.e Jagdish is no more living and another

panch Shri Virendra Singh is not traceable.

Counsels of accused nos.1&2 have declined to cross-

examine the above witness. In the cross-examination

of Adv.Pasbola, it is stated by PW-47 that he made

inquiry regarding the incident with the passengers

of the bus. He himself took both the panchas on the

spot who were residing in adjacent area. Evidence of

PW-47 has not been challenged by accused no.3.

74. Ex.P-591, Ex.P-592 and Ex.P-606 are the

reports of Forensic Science Laboratory, Mumbai,

pertaining to the analysis of the articles seized

from the scene of offence in C.R.No.91/2003.

Results of the analysis is that Nitrocellulose,

Nitroglycerine, Ammonium Nitrate and constituents of

gelatine were detected on the seized articles. It


is therefore confirmed that the explosives were used

in the said blast.

75. PW-27 Lalasahebsingh lodged FIR regarding

the powerful bomb blast occurred in motor taxi

bearing no. MH-02-R-2022 at the junction of Dhanji

Street on Yusufali Road, near Mumbadevi Temple at

noon time on 25.8.2003. According to him at the time

of the incident he was proceeding towards Gulalwadi

in another taxi and when his taxi was turning near

Sagar Juice Centre, one taxi came from front side.

He allowed that taxi to pass and when it went little

ahead, there was explosion in the said taxi. The

explosion was so loud as he felt that his both the

ears became deaf. When he got down from the taxi, he

heard shouts as � Bachav-Bachav� . He saw many persons

suffering cut injuries on their persons and dead

bodies were found lying around the taxi. F.I.R. of

the above incident was lodged by him at about 12.45

hrs. It is testified by PW-27 Lalasaheb that while


preparing the panchanama of scene of offence,

officers of Forensic Science Laboratory were called

on the spot who took samples of blood mixed soil and

metal pieces. Accused Nos.1 to 3 have declined to

cross-examine this witness.

76. PW-43 PI Gopinath Chavan deposed that

panchanama of scene of offence (Ex.P-353) was

prepared by him. It is his evidence that 11 articles

were seized from the spot consisting number plate of

damaged taxi, blood mixed soil and blood stained

metal pieces. PW-45 API Bajrang Parab spoke that

pieces of gas cylinders were found scattered in

Bhuleshwar area and those were seized by him vide

panchanama Ex.P-376. It is revealed from the

evidence of PW-43 Gopinath Chavan that the injured

persons were taken by him to J.J.Hospital and

statements of 19 injured persons were recorded by

him. Offences under POTA 2002 was added on

26.8.2003 to CR 201/2003 lodged at L.T.Marg Police


Station and further investigation was thereafter

handed over to ACP Shri Shyamrao Jedhe (PW 44).

77. It is stated by ACP Shri Shyamrao Jedhe (PW

44) that statement of complainant Lalasaheb and

other witnesses were recorded by him. 36 persons

were killed in the above incident and 138 became

injured. 77 adjoining shops were damaged and 35

vehicles on the site were burnt. Splinters removed

from the body of the injured persons were sent to

Forensic Science Laboratory.

78. Ex.P-372(colly) and Ex.P-373(colly) are the

C.A. reports pertaining to the analysis of the

articles seized from the scene of offence. Results

of the analysis showed that RDX Cyclotrimetnylene

trinitramine along with petroleum Hydrocarbon oil

was detected on the seized articles. It is also

reported by the Assistant Chemical Analyzer that the

broken CNG cylinder found at the site indicate added


effect of CNG gas in the blast. After examining

seized splinters, it is reported by CA that Nitrate

(Post explosion residue) was detected thereon.

Splinters contained iron and manganese as major

elements. After having observed remnants of damaged

motor taxi bearing No.MH-02 R-2022 and site of the

blast it was opined by C.A. that the blast has taken

place in dickey of the taxi and it was further

confirmed by the detection of RDX.

79. FIR pertaining to the bomb blast occurred at

Gateway of India was lodged by police constable

Camilo Reis (PW-14) and the panchanama of the scene

of offence (Ex.P.318) was prepared by ACP Shri

Vinodkumar Sharma (PW-92). According to PW-92 ACP

Shri Vinodkumar Sharma he was kept in-charge of

Colaba division on 25.8.2003 and he received message

on above day at 1.10 p.m. that there was bomb blast

at Gateway of India. He immediately rushed to the

spot. After examining the scene of offence it was


noticed by him that a crater was developed having

dimension of 3.5' to 4' and 1' to 1.5' depth near

parapet wall of the sea. The officers from the

office of FSL were called on spot who collected

samples of metal pieces, blood stained soil and

stone from the scene of offence. Ex.P-540 (colly)

and Ex.P-545 are the reports of FSL pertaining to

the examination of the articles which came to be

seized from scene of offence in DCB CID CR No.86 of

2003 and it is opined that RDX (Cyclotrimethylene

trinitramine) alongwith petroleum was found on the

seized articles i.e. metal pieces, rubber pieces,

metallic wires, debris, cloth pieces and polythene

bags. After having examined the site of the bomb

blast it is opined that high explosive, detonated by

detonator might have been used in the blast. The

broken CNG cylinder found at the site indicates

added effect of CNG gas in the blast. The residue

and remnants collected at the site showed the

presence of RDX along with petroleum hydrocarbon oil


as tested by chemical and instrumental methods.

80 It is not disputed that 54 persons were

killed in the three bomb blasts referred above. The

names of the deceased persons and the Exhibit

numbers of Cause of Death Certificates is mentioned

here-in-above (Para-53). 244 persons also suffered

injuries in the above incident of blasts. The names

of the injured persons and the Exhibit numbers of

their Injury Certificates are mentioned in para-54.

Post-mortem Report and Cause of Death Certificates

of deceased persons show that the deceased were died

due to haemorrhage and shock due to multiple

injuries with burn injuries in the bomb blasts. It

is seen from the Injury Certificates that some of

the injured persons were required to take medical

treatment as outdoor patient and were discharged on

the same day and some of the injured persons were

required to take treatment as indoor patient ranging

from 2 to 7 days. Some of the injured suffered 100%


temporary disability. Most of the injured persons

underwent surgery in St. George Hospital,

J.J.Hospital and other private hospitals.

81 P.W.23, P.W.25, P.W.35, P.W.36, and P.W.64

to P.W.87 are the witnesses examined by the

prosecution on the point that their nearest

relatives lost their lives in the twin bomb blast

dated 25/08/2003. P.W.21, P.W.24, P.W.36, 37 & 38

are the witnesses who deposed about injuries on

their persons in the above bomb blasts.

Arrest of Accused Nos.1 to 3.

82 PSI Jitendra Vankoti (PW-97) and PSI

Suryakant Talekar (PW-98) were attached to DCB CID

Unit No.XI in the year 2003. It is stated by PW-97

Vankoti that accused no.2 was apprehended by the

officers of unit No.XI at Juned Nagar, Juhu Galli at

about 4.00 p.m. on 31.8.2003 and thereafter he was


taken in the office of unit No.XI at Kandivali.

After having made preliminary inquiry with him it

was revealed that he was involved in the BEST bus

bomb blast at Ghatkopar (DCB CID CR No.75 of 2003)

and therefore he was arrested in connection with the

above offence at about 20.20 hrs. on the above day

and arrest memo Ex.P-385 was prepared. It is the

evidence of PSI Shri Pramod Toradmal (PW-51) and

panch witness Mukund Ingrulkar (PW-50) that the

personal search of accused no.2 resulted in the

seizure of 12 articles (Art. 12A to 12L) consisting

visiting card of Noor Electricals (Art.12H) owned by

Shri S.M.Hanif (A-1) and A.B.Shaikh. On the overleaf

of the above visiting card two mobile numbers of

Nasir i.e 9892077831 & 9892451164 are found

mentioned. The land-line number of accused no.1

Hanif i.e 28527761 is also found mentioned on the

overleaf of the visiting card. In one chit i.e Art.

12/G the e-mail address of co-accused Jahid Patne is

found mentioned. PW-50 Mukund Ingrulkar has


identified accused no.2 in the court saying that it

is the same accused from whose personal search the

above articles i.e Art 12/A to 12/L were seized by

the police under panchanama Ex.P-385. There is

endorsement of accused no.2 at the bottom of the

panchanama pertaining to have received the copy of

the same and he has made his signature below the

above endorsement.

83 PW-53 Sunil Bhaita is the panch witness in

whose presence accused no.2 Ashrat expressed his

willingness to police officers of Kandivali Unit to

point out the place where he had concealed the

remaining bomb material. According to this witness

the disclosure statement of accused no.2 to the

above effect was recorded by PSI Vankoti which is

placed on record at Ex.P-393. Perusal of the above

disclosure statement shows that it was reduced to

writing at about 21.05 hrs on 31.8.2003. This

witness further spoke that accused no.2 Ashrat led


police and panchas in a Gypsy vehicle towards his

house situated at Juned Nagar, Juhu Galli, Andheri

(West), Mumbai. After crossing the distance of 50

meters from a lane there was a chawl and accused no.

2 led them towards first floor of the chawl where

his mother � Kamrunissa� opened the door. Accused

no.2 took out one tin box below the cot of his bed-

room and after opening the said tin box it was found

contained 30 gelatine sticks (Art-13), 3 alarm

clocks (Art.14 colly) and 8 detonators. Sample of

each of the above articles was taken and the

articles were separately packed in plastic paper and

labels were affixed on them and those were seized

under panchanama Ex.P-393/A which bears the

signature PSI Vankoti, panchas and accused no.2

Ashrat The above seizure memo shows that it was

concluded at 22.40 hrs on 31.8.2003. The witness has

identified the above articles when shown to him

while recording his evidence.


84 PW-53 Sunil Bhatia testified that in his

presence accused no.2 Ashrat disclosed the police

officers to point out the place where the bombs were

prepared. Evidence on the same line is given by PSI

Suryakant Talekar (PW-98). Disclosure statement to

the above effect was prepared by PSI Talekar which

bears his signature, signature of both the panch

witnesses and signature of accused no.2 which is at

Ex.P-394. It is seen from Exh.394 that it was

concluded at 23.50 hrs on 31.8.2003.

85 Both the above witnesses stated that the

police called Gypsy vehicle and accused no.2 Ashrat

thereafter led panchas and police towards Andheri-

Kurla Road, Marol Naka and thereafter accused no.2

directed to take the police vehicle towards Chimat

Pada. As per his direction the vehicle was halted

near Ashiyana Bungalow where accused no.2, panchas

and police alighted from the vehicle and started

proceeding towards Salim Chawl situated in Chimat


Pada near Maheshwari Hotel. Accused no.2 Ashrat led

panchas and police towards room no.D-7 at Salim

Chawl and the door of the room was opened by accused

no.1 Hanif himself. Accused no.3 Fehmida and her

two daughters Farheen (15) and Sakira (5) were also

found present in the room. Accused Hanif told that

Fehmida was his wife. Accused no.2 was already

knowing accused nos.1 and 3. PW-98 PSI Talekar

thereafter took search of the house of accused nos.1

and 3. Search of the cupboard resulted in the

seizure of nine documents consisting passport of

accused no.1 Hanif and his family members, identity

and visiting cards. One of the visiting cards

mentioned the name of Nasir and his mobile number as

9892451164. The other visiting cards were pertaining

to Noor Electricals which was owned by accused no.1

Hanif and the mobile number of Nasir was found

mentioned as 9892077831 on the overleaf of the same

card.


86 Evidences of panch witnesses PW-53 Sunil

Bhatia and PSI Suryakant Talekar (PW-98) revealed

that accused no.2 Ashrat pointed out the loft in the

house of accused no.1. One water tank was found on

the loft and besides that tank there was one gunny

bag. On opening the gunny bag it was found contained

125 alluminium clips, clipper machine of Super Eagle

Co., one bundle of white polyester filament yarn

role, one tightening machine, one soldering machine

to which plug and wire were attached, role of

soldering wire, 9 alarm clocks and 16 fire crackers

of red colour. The above articles were kept in a

small cardboard and labels were affixed thereon. One

another carton box was found on the loft and on

opening the same 12 detonators were found packed

therein. One of the detonators was taken out as

sample and 11 detonators were wrapped in cotton and

those were kept in a small carton box. All the

above articles were seized under panchanama

Ex.P-394/A which bears signature of PSI Talekar,


panchas and the signatures of accused nos.1 and 2

and it was concluded at 2.35 hrs. on 1.9.2003. The

above seized articles are marked as Art.16 colly. to

Art.29. PW-53 has identified all the above articles

which came to be seized from the house of accused

no.l. All the above muddemal articles are duly

packed, labeled and sealed.

87 PSI Talekar (PW-98), PSI Vijay Kandalgaonkar

(PW-99) and panch witness Sunil Bhatia (PW-53)

deposed that accused no.1 Hanif showed his

willingness to point out the place where he had

concealed some gelatine sticks. Accused no.1

thereafter led the panchas and police towards room

no.14, Salim Chawl, which was locked. Accused no.1

opened the room and took out a yellow colour gunny

bag which was kept below the cot and it was found

contained 58 gelatine sticks on which � Nobel- gel 80

NECL � Hingani Wardha� were printed. One of the

sticks was taken as sample and others were seized


under panchanama Ex.P-395/A which was concluded at

7.50 hrs on 1.9.2003 and it bears signature of PSI

Kandalgaonkar, panchas and accused no.1 Hanif.

88 Advocate Shri Kunjuraman appearing for

accused no.2 has submitted that arrest panchanama of

accused no.2 Ex.P-385 is totally fabricated and

concocted document. It is the evidence of PSI

Jitendra Vankoti (PW-97) that accused no.2 was

brought from Juned Nagar, Juhu Galli to the office

of crime branch at 4.00 p.m on 31.8.2003 and he was

thereafter interrogated. He was arrested at 8.20 p.m

on the above day. It is stated by him in cross-

examination that no panchanama of any kind was

prepared when accused no.2 was picked up from Juned

Nagar. Adv.Kunjuraman has invited attention to the

evidence given by Chief IO Shri Walishetty (PW-103)

that the accused no.2 was arrested at Andheri

whereas it is the evidence of police officers PSI

Vankoti (PW-97) and PSI Talekar (PW98) that the


accused no.2 was arrested inside the Kandivali Crime

Branch Unit. It is thus submitted that there is

confusion regarding the arrest of accused no.2.

89 Advocate Kunjuraman has invited attention of

the Court towards news item published in Times of

India on 2.9.2003 (Ex.D-76) to the effect that

accused no.2 was arrested on Saturday morning and he

was interrogated in the evening. India Today

Magazine (Ex.D-77) reported that on the afternoon of

August 30, police officer Shri Maria and his team

arrested accused no.2 Ashrat in Juhu. It is pointed

out by Advocate Kunjuraman that Ex.D-77 mentions the

date of arrest of accused no.2 as 30th August and

the arrest panchanama Ex.P-385 shows the date of

arrest as 31.8.2003.

90 Special PP Mr.Nikam has submitted that there

is no discrepancy regarding arrest of accused no.2.

According to him the news items relied by the


defence pertaining to the arrest of the accused no.2

cannot be considered as it is hearsay in nature. In

support of the above submission Special PP Mr.Nikam

has placed reliance upon the judgment of the Apex

Court in a case of Laxmi Raj Shetty Versus State of

Tamil Nadu, AIR 1988 SC 1274. It is held by Their

Lordships of the Hon'ble Apex Court in the above

matter in para 25 as under:

� we cannot take judicial notice of the

facts stated in a news item being in the

nature of hearsay secondary evidence,

unless proved by evidence aliunde. A report

in newspaper is only hearsay evidence. A

news paper is not one of the documents

referred to in S.78(2) of the Evidence Act,

1872 by which an allegation of fact can be

proved. The presumption of genuineness

attached under section 81 of the Evidence

Act to a newspaper report cannot be treated

as proof of the facts reported therein.�

91 PW-97 PSI Vankoti has stated in his cross-

examination that accused no.2 was brought from Juned


Nagar, Juhu Galli at 4.00 p.m. on 31.8.2003 and for

the purpose of interrogation he was taken to the

office of Unit-XI of Kandivali. After interrogation

he was arrested at 8.20 p.m. It is not disputed that

house of accused no.2 Ashrat is situated at the

residential address Juned Nagar, C.D.Barfiwala Road,

Andheri(West), Mumbai-58. Thus it is seen that

accused no.2 was apprehended by the officers of

Unit-XI near the house of accused no.2 and for the

purpose of interrogation he was taken in the office

of Unit-XI. After interrogation and after

confirming that he was involved in the offences of

bomb blasts, he was arrested at 8.20 p.m. Thereafter

his personal search was conducted and the articles

found in his possession were taken in possession

under panchanama Ex-P-385. It is suggested in the

cross-examination of PW-98 PSI Talekar that the then

Commissioner of Police and the then Home Minister

held press conference on 1.9.2003 and in that press

conference it was reported to the media that accused


no.2 Ashrat was arrested on 30.8.2003 and accused

nos.1 and 3 were arrested on 31.8.2003 at early

hours of morning. This suggestion is denied by PSI

Talekar.

92 So far as the arrest of accused nos.1 and 3

is concerned, it is submitted by their Counsels Adv.

Wahab Khan and Adv. Pasbola that it is the

prosecution case that accused nos.1 and 3 were

arrested on 1.9.2003, but there was no reason for

the then Commissioner of Police Shri R.S.Sharma and

the then Dy.Chief Minister Shri Chagan Bhujbal to

give a press briefing to the media about the date of

arrest of accused nos.1 and 3 on 31.8.2003. The

said media reporting is brought on record by the

defence. Ex-D-76 is the news item published in Times

of India on 2.9.2003 in the caption of � police

confirmed active role of woman in blast� . I have

gone through the news item which is silent about the

date of arrest of accused nos.1 and 3.


93 Accused No.1 Hanif in his defence evidence

(DW-4 Ex-102) has stated that he returned home at

7.00 p.m on 30.9.2003. When he alognwith his family

members was about to take dinner at that time 20 to

25 policemen entered in his house at 8.00 p.m. and

they expressed willingness to take house search.

After taking house search the police personnel took

passport, bank passbook and other documents

alongwith one album of photographs and except this

nothing was seized. Accused no.1 himself and his

family members were taken to crime branch office at

Andheri. It is further stated by accused no.1 that

he was taken in Bhabha hospital on 1.9.2003 as his

blood pressure was raised and after giving discharge

from the hospital he was produced before the special

court and he was remanded to police custody for 14

days. The above evidence of accused no.1 shows that

he and his family members were apprehended by police

at about 8.00 p.m. in his house on 30.9.2003. When


he was admitted in Bhabha Hospital on 1.9.2003 of

his ailment of blood pressure, it means that accused

no.1 wanted to state that he himself and his family

members were apprehended by police at 8.00 p.m on

30.8.2003 and not on 30.9.2003. In the cross-

examination it is stated by accused no.1 Hanif that

he was not aware of the date of his arrest when he

was produced before the POTA Court on 2.9.2003. He

has denied the suggestion of the Special P.P. that

he was arrested by police on 1.9.2003.

94 DW-5 Shri R.S.Sharma was serving as the

Commissioner of Police of Mumbai during the period

from 31.12.2002 till 14.11.2003. He deposed at

Ex.D-106 that he had occasion to release the press

note on 1.9.2003 and the press conference was

attended by he himself and Home Minister Shri Chagan

Bhujbal and Jt.C.P.(Crime). Press note was

circulated in that conference and the queries raised

in the press conference were replied by DW-5 Shri


R.S. Sharma. Ex.D-76 is a news paper report

pertaining to the above press note. After having

gone through the news item Ex.D-76 it is stated by

this witness that he is unable to say whether the

contents of the news item depicts the correct events.

95 It has come in the evidence of DW-5 Shri

R.S.Sharma that press note dtd. 1.9.2003 Ex.D-107 is

signed by IO Shri Walishetty. After having gone

through Ex.D-107 it is stated by DW-5 that he is

unable to state the exact date on which accused nos.

1 and 3 were arrested. The date of arrest of

accused no.2 is also not mentioned in the above

press note.

96 In the cross-examination taken by Spl.P.P.

Mr.Nikam it is stated by DW-5 Shri R.S.Sharma that

it was confirmed by him from the documents that one

of the accused persons was arrested on 31.8.2003 and

rest of the accused persons were arrested on the


next day. DW-6 the then Home Minister Shri Chagan

Bhujbal has also stated that it was stated in the

press conference that four accused persons were

arrested in bomb blast cases, out of which one was

arrested on earlier day evening and remaining three

were arrested on the same day early in the morning

i.e on 1.9.2003. Thus neither news items Ex.D-76 and

Ex.D-107 nor the evidence of DW-5 R.S.Sharma and

DW-6 Shri Chhagan Bhujbal support the defence of

accused nos.1 and 3 that they were arrested on

31.8.2003.

97 Advocate Kunjuraman has invited attention of

the court to the complaint filed by the elder

brother of accused no.2 Ashrat viz. Mohd.Anjum

Ansari against police officers viz. Shri Walishetty,

Shri Savde, Shri Kandalgaonkar, Shri Vankpoti, Shri

Talekar, Shri Toradmal, Shri Waghmare and

Constables having buckle no.1842, 6474 and 2369 and

against the panch witnesses. Complaint was


registered as M.A. No.46 of 2004 on 31.3.2004 for

initiating criminal proceedings against the above

respondents under section 120-B r/w sec.194, 195,

196, 197, 198, 199 and 200 of IPC r/w sections 5 and

9 of Explosives Act, 1884, r/w sec. 5 of Explosive

Substances Act, r/w 4 and 58 of POTA, 2002 and to

pay compensation of Rs.5 lacs to the complainant and

his family members by respondent nos.2 to 15 for

causing mental agony, grave suffering, defamation

and loss of reputation faced by complainant and his

family members due to fabrication of the recovery

memos prepared by them.

98 Complainant Mohd. Anjum Ansari was examined

on oath as CW-1 and in addition to his evidence he

examined six more witnesses. Complainant Mohd. Anjum

deposed that accused no.2 Ashart is his younger

brother. According to him, disclosure and seizure

panchanama pertaining to seizure of the explosives

from the house of accused no.2 is false. This


witness has not stated that police did not come to

the house of accused no.2 Ashrat on 31.8.2003 and he

was not arrested on that day and nothing was

recovered from his house at his instance.

99 CW-2 Kamrunnisa is the mother and CW-3

Shafique is the father of accused no.2 Ashrat. They

both have stated that accused Ashrat was last seen

by them in the house on 30.8.2003 and according to

Kamrunnisa she lodged complaint on 31.8.2003 to the

effect that Ashrat had left on Sunday and since then

he did not come back. According to CW-3 Shafique,

police had come to his house on 2.9.2003 at about

2.00 p.m and he was ill-treated by the police.

According to this witness, missing complaint was

lodged to D.N.Nagar police station regarding missing

of Ashrat. CW-3 has stated in cross-examination that

he made no complaint to the superior police officer

or to the court regarding the ill-treatment meted

out to him by police. He has admitted that he has


no evidence about the ill-treatment given to him by

police on 2.9.2003.

100 CW-4 Farhad has stated that Ashrat was last

seen by him on 30.8.2003 and it was Saturday.

Police did not come to his house at any time. He

again said that he had been to the house for lunch

and on that day police had come to his house. While

making above statement by CW-4 in court

Adv.Kunjuraman appearing for the complainant

reminded the witness to state the facts before the

court which have been stated by other witnesses.

CW-4 further spoke in the cross-examination that

after watching T.V.news he came to know that his

brother Ashrat was arrested in bomb blast incident.

101 CW-5 Rajib Shafique is the brother of

accused no.2 Ashrat. According to him, police had

not come to his house during the period from

30.8.2003 to 2.9.2003.


102 CW-6 Tabassum is the elder sister of accused

no.2. She deposed that Ashrat was last seen by her

on 30.8.2003 and it was Saturday, thereafter Ashrat

did not come to the house and police approached the

house only on 2.9.2003. She has denied the

suggestion of Spl.P.P. that police had been to her

house on 31.8.2003 and at the instance of accused

no.2 Ashrat, the incriminating articles i.e gelatine

sticks and detonators were seized from the house.

CW-1 Mohd. Anjum has stated in his cross-examination

that he has filed the complaint against the police

officer as per the instructions given by his

advocate.

103 I have gone through the first remand

application Ex-D-81(R.A.35 of 2003) wherein accused

no.2 Ashart, accused no.3 Fehmida and her daughter

Ms.Farheen were produced before Special Court on

1.9.2003 and in the remand application accused no.2


Ashrat was shown arrested at 20.20 hrs on 31.8.2003

and accused no.1 Hanif and his wife accused no.3

Fehmida have been shown arrested on 1.9.2003 at

03.00 hours. I have gone through the remand order

of the POTA Court dt.1.9.2003 wherein it is clearly

mentioned that accused no.2 Ashart admitted before

the court that he was arrested yesterday morning i.e

on 31.8.2003 and accused Fehmida and her daughter

Farheen have submitted before the court that they

were arrested on the morning of 1.9.2003. It is

thus clearly seen from the remand application and

order of the court that it was accused no.2 Ashrat

who himself admitted to have arrested on 31.8.2003.

Arrest-cum-seizure panchanama also specifically

mention that accused Hanif and his wife Fehmida were

arrested on 1.9.2003 in connection with C.R.No.75 of

2003. It is thus clearly established that accused

no.1 and accused no.3 were arrested at about 03.00

hrs. on 1.9.2003 and not on 31.8.2003 and accused

no.2 was arrested on 31.8.2003 at about 20.20 hrs.


Seizure of explosives from the house of accused

nos.1 and 2.

104 Advocate Wahab Khan, Ld.Counsel appearing

for accused no.1 has submitted that evidence brought

on record by the prosecution regarding the seizure

of the explosive substances from the house of

accused nos.1 and 3 inspires no confidence.

According to him prosecution produced no evidence to

show that accused no.1 was possessing two houses in

Salim Chawl, Chimat Pada, Marol Naka, Mumbai. There

is no substance in this contention because the

factum of ownership of the house is irrelevant so

far as the recovery of contraband articles from the

house under section 27 of Evidence Act is concerned.

What is required to be proved is that whether the

house in which the contraband articles are found was

in the possession of the the accused or not. It is

the evidence of PW-98 PSI Talekar and PW-99 PSI


Vijay Kandalgaonkar that R.No.D-7, Salim Chawl,

Chimat Pada, Mumbai was found in possession with

accused no.1 and his family members and R.No.14 in

Salim Chawl, Chimat Pada was also found in

possession with accused no.1. The evidence of both

the above witnesses is supported by the unshaken

testimony of panch witness PW-53 Shri Sunil Bhatia.

It is therefore proved that both the rooms stated

above were found in possession with family of

accused no.1.

105 It is further argued by Adv. Wahab Khan that

no offender will store the explosive articles in the

house where he is residing with family members

especially when the plan of committing terrorist act

is successfully executed. Even though apparently the

above point seems to be attractive but fact remains

that when the plan of causing series of bomb

explosions in the city is not fulfilled then

offender may think of storing the explosive


substances either in the house or some where else in

pursuance of the conspiracy. I therefore do not

attach any weight to the above submission.

106 Adv. Wahab Khan has invited attention of the

court to the evidence of panch witness Sunil

Bhatia(PW-53/27) who said that accused no.1 led

panchas and police in front of R.No.14 of Salim

Chawl and it was found locked. Opposite to R.No.14

there was another room belonging to accused no.1

Hanif and the said room was also locked. Accused

Hanif took out the keys from the neighbouring room

and opened the lock of R.No.14. In this respect it

is submitted that how the key of room no.14 has gone

with the neighbour and the so called neighbour from

whom the accused no.1 took the key has not been

examined by the prosecution. It is therefore

submitted that the evidence led by the prosecution

pertaining to the recovery of explosives from room

no.14 of accused no.1 inspires no confidence. The


above submission of Ld. defence counsel is not

tenable because it is the evidence of PW-53 Sunil

Bhatia and PW-99 Vijay Kandalgaonkar that on opening

the lock of room no.14 accused no.1 Hanif unlocked

his another room which was adjacent to room No.14

and after taking the keys which was kept below the

mattresses on the cot he opened the lock of room no.

14 and then accused no.1 Hanif took out yellow

coloured gunny bag from that room which was found

containing 58 gelatine sticks and those were seized

under panchanama Ex.P-395A. PW-53 has never stated

that accused no.1 Hanif had kept the key of his

another room with the neighbour. Therefore there is

no question of examining any neighbour by the

prosecution. I have carefully scrutinized the

evidence of panch witnesses PW-53 Sunil Bhatia,

PW-98 PSI Suryakant Talekar and PW-99 Vijay

Kandalgaonar and it is found that the testimony of

all the above three witnesses have not been

dislodged in their respective cross-examinations.


The evidence of police officers PW-98 and PW-99 is

well supported by the testimony of panch witness

Sunil Bhatia(PW-53) and all the three witnesses have

thus gave evidence regarding the contents of seizure

panchanama Ex.P-394A and Ex.P-395A. There is no

material on record to cast doubt about the veracity

of the evidence of above three witnesses. Accused

nos. 1 and 3 do not dispute the seizure of

passports, visiting cards and other documents from

their house. They however denied seizure of

explosives on 1.9.2003 vide Ex.P-394/A and 395/A.

After having gone through the oral and documentary

evidence on record, I find that the documents and

explosive substances came to be seized from the

house of accused no.1 i.e room no.D-7 Salim Chawl,

Chimat Pada, Mumbai on 1.9.2003 at about 2.35 hrs.

vide panchanama Ex.P-394/A and explosive substances

i.e 58 gelatine sticks were recovered from the room

no.14 possessed by accused no.1 situated at Salim

Chawl, Chimat Pada, Mumbai vide panchanama Ex.P-395A.


107 Adv. Kunjuraman Ld. Counsel appearing for

accused no.2 Ashrat has submitted that Ex.P-385 is

the seizure memo of the articles from the personal

search of accused no.2 held on 31.8.2003 at 20.35

hrs and soon after five minutes of concluding the

above seizure memo accused no.2 is alleged to have

given information to police regarding the place

(house of accused no.2 situated on the first floor

at Juned Nagar, Juhu Galli, Andheri(West) where the

explosive substances were stored. Accused no2

thereafter led towards his above house and produced

30 gelatine sticks, 3 alarm clocks and 8 detonators

which came to be seized under panchnama Exh.P-393-A

which was concluded at 22.40 hours. According to

Adv. Kunjuraman, panch witnesses of Exh.P-385 and

panchas in Exh.P-393 are different. Disclosure

panchnama Exh.P-393 appears to have been commenced

within 5 minutes from concluding the seizure memo

Exh.P-385 and still IO has selected different


panchas to witness the subsequent search. According

to Adv. Kunjuraman, the panchas in Exh.P-385 should

have been continued to witness seizure in Exh.P-393

and this circumstance throws doubt about the

veracity of both the seizure memos. Special PP Mr.

Nikam replied the above query by submitting that

when the other panchas are made available to the

police, then there is no propriety in continuing the

same panchas to witness the house search of accused

no.2. I find substance in the above submission

because both the seizure memos are different.

Exh.P-385 is the panchanama of the articles which

came to be seized from personal search of accused

no.2 and Exh.P-393 is the panchanama of the seizure

of explosive substances from the house of accused

no.2. Therefore, selection of different panchas for

both the seizure memos cannot be a ground to throw

doubt regarding the genuineness of the above seizure

memos.


108 Advocate Kunjuraman has further argued that

the fact of seizure of explosive substances from the

houses of accused nos. 1 and 2 have not been

mentioned in the first remand application of accused

persons dated 1.9.2003 and therefore the seizure

evidence is doubtful. I have gone through the

remand application Exh.D-81 dated 1.9.2003 and

para-3 on page no.2 of the remand application

specifically mentions that at the instance of the

accused persons contraband articles i.e. 205

gelatine sticks, 20 detonators, 12 alarm clocks

(timer), soldering wire, clipper machine, fire

crackers etc. were recovered. Articles seized

separately from the house of accused no.1 and

accused no.2 are not given in the remand

application, instead total number of gelatine

sticks, detonators, alarms clocks and other articles

seized in the houses of accused nos. 1 to 3 have

been mentioned. According to Special PP Mr. Nikam

mentioning of total number of explosive substances


of various nature recovered from the houses of

accused nos. 1 and 2 is sufficient for seeking

police custody remand of the accused persons. The

Magistrate before whom the accused are produced

makes inquiry whether adequate grounds exists for

remanding the accused to police custody and after

satisfying himself about the grounds, accused are

remanded to police custody as per section 167 of

Cr.P.C. The fact of seizure of explosive substances

from the houses of accused nos. 1 and 2 is mentioned

in the remand application dated 1.9.2003 and

therefore on that basis the accused were remanded to

police custody till 15.9.2003. Special P.P. Mr.

Ujjwal Nikam has therefore submitted that there is

no substance in the above submission of Advocate

Kunjuraman. Accepting the above argument of

Special PP. Mr. Nikam, I am of the view that the

point raised by Adv. Kunjuraman is not sustainable

in law.


109. Advocate Kunjuraman has urged that panch

witness PW 53 Sunil Bhatia has stated in cross-

examination that articles in his presence were not

sealed and therefore it is submitted that seizure of

the articles was not proper. Adv. Wahab Khan,

learned Counsel for accused no.1 has also submitted

that the articles seized vide panchnama Exh.394-A

and 395-A were not sealed and non sealing of the

articles would cast doubt on the prosecution case.

In support of the above submission he placed

reliance on Amarjit Singh V/s. State, 1995 SCC (Cri)

828. I have carefully gone through the evidence of

PW53 Sunil Bhatia so as to find out the above

statement in his evidence, but PW 53 is found not to

have made such a statement in his evidence which is

attributed to him. On the contrary, he has stated

that all the seized articles were packed, labelled

and duly sealed in his presence and label bears the

signature of panchas and police officers. His

cross-examination discloses that while sealing the


articles the red stick was made hot and then it was

pressed on the wrapper. Police used candle and

lighter for giving heat to the red stick. For

sealing the seized articles police used transparent

plastic, cardboard, string, stapler, cello tape,

small cartoon boxes and cotton and the sealing kit

was carried by PI Savde. PSI Talekar (PW98) also

gave evidence of sealing of the seized articles.

Therefore, the above submission of Advocate

Kunjuraman and Advocate Wahab Khan is not tenable.

In the above cited case appellant was found in

possession with revolver with two live cartridges.

Police officer who seized the revolver did not seal

it on the spot. It is thus held by the Hon'ble Apex

Court that the non sealing of the revolver on the

spot was a serious infirmity as the possibility of

tampering could not be ruled out. Thus, the above

citation is not applicable to this case as the

articles were sealed after the seizure.


110 It is further argued by Advocate Kunjuraman

that Juhu Galli house recovery panchnama

Exh.P-393/A was concluded at 22.40 hours on

31.8.2003 and the same two panchas did not go to

their own houses but found loitering around

Kandivali Crime Branch area with an expectation that

their services would again be required by police for

preparing Chimat Pada house panchanama Exh.P-394/A

which was concluded at 2.35 hours on the next day

i.e. On 1.9.2003. Thus, according to defence

Counsel Advocate Kunjuraman the services of panch

witnesses were taken by the police from 20.40 hours

on 31.8.2003 till 2.35 hours of 1.9.2003 and this is

one of the circumstances to cast doubt about the

genuineness of the seizure memos. I find no

substance in the above submission because when

different panchas are taken for two different

panchnamas still objection is being taken by

Advocate Kunjuraman and if same panchas are

continued to witness two different seizure memos


still objection is raised. It is thus seen that the

approach of learned defence Counsel is not

consistent and simply because the same panchas are

selected by the police to witness another seizure

that cannot be the ground to throw doubt about the

genuineness of he seizure memos. Thus, all the

points raised by Advocate Kunjuraman doubting seizure

of explosive substances from the house of accused no.2

vide panchanama Exh.P-393/A are devoid of merit.

111 Evidence of I.O. reveals that the sample of

explosive substances seized by the officers of

Kandivali Unit on 31.8.2003 and 1.9.2003 from the

houses of accused no.1 and 2 were sent to Forensic

Science Laboratory on 15.9.2003 and 9.10.2003 vide

forwarding letter Exh.P-587 and Exh.P-588 and these

forwarding letters bear the endorsement of concerned

clerk Shri Khavanekar working in Forensic Science

Laboratory of having received the above articles on

26.9.2003 and 9.10.2003. Exh.P-595 is the report

dt. 19.11.2003 about the destruction of the


explosives sent by Joint Chief Controller of

Explosives West Circle, Navi Mumbai. Exh.P-591 and

Exh.P-592 are the C.A. Reports pertaining to the

examination of the sample of the explosive articles

seized from the houses of accused nos.1 and 2. Both

the above reports dated 21.10.2003 disclose that

gelatine sticks contained nitrocellulose and

nitroglycerine as well as ammonium nitrate and dust.

Nitrocellulose, nitroglycerine, ammonium nitrate

were also detected on gelatine sticks on which � GEL

80 NECL, Hingni Wardha� were printed. No explosives

were detected in metal clips, alarm clocks,

soldering wires and polyester yarn. It is therefore

proved that the gelatine sticks and detonators which

were seized from the houses of accused nos. 1 and 2

are the hazardous explosive substances.

Grievance of the accused persons regarding violation of procedural safeguards under section 52 of POTA 2002.

112 Advocate Wahab Khan, Advocate Kunjuraman and


Advocate Pasbola, Ld. Counsels appearing for accused

nos.1 to 3 respectively, have submitted that after

the arrest of the accused persons custody memos were

not prepared by the arresting officers and the

accused were not informed their right to consult

legal practitioner. The fact of the arrest of the

accused persons was also not communicated by the

police to their family members or to their

relatives. Thus, there was total violation of

procedural safeguards by the officers of DCB CID

after arrest of the accused persons. For

appreciating the above submission it is necessary to

reproduce here section 52 of Prevention of Terrorism

Act, 2002:

� Section-52 Arrest -(1) Where a police

officer arrests a person, he shall prepare a

custody memo of the person arrested.

(2) The person arrested shall be informed

of his right to consult a legal practitioner

as soon as he is brought to the police

station.

(3) Whenever any person is arrested,


information of his arrest shall be

immediately communicated by the police

officer to a family member or in his

absence to a relative of such person by

telegram, telephone or by any other means and

this fact shall be recorded by the police officer

under the signature of the person arrested.

(4) The person arrested shall be permitted

to meet the legal practitioner representing

him during the course of interrogation of

the accused person:

Provided that nothing in this sub-section

shall entitle the legal practitioner to

remain present throughout the period of

interrogation.�

113 Sub-section (1) of section 52 casts duty

upon the police officer to prepare a custody memo

when a person is arrested. PW.99 spoke that custody

memo of accused no.1 was prepared on the spot, but

no such memo is produced on record. Exh.P-385 is

the custody memo-cum-seizure panchnama of the

articles found in the personal search of accused no.

2 Ashrat which was concluded at about 20.35 hours on


31.8.2003 and it is signed by both the panchas and

PW-51 PSI Toradmal. The said panchnama is also

signed by accused no.2 Ashrat who has made

endorsement of having received copy of the same.

The form of custody memo is not prescribed under

POTA, 2002. DCB CID Unit No.XI has therefore treated

Exh.P-385 as custody memo of accused no.2. I am of

the opinion that no fault can be found in the above

procedure adopted by the officers of DCB CID Unit

No.XI. So far as accused nos. 1 and 3 is concerned,

panch witness PW-53 Sunil Bhatia and PW 99 PSI

Kandalgaonkar have stated in the cross-examination

that no separate arrest panchnamas of the above

accused persons were prepared by police. It is

therefore seen that the officers of Kandivali Unit

have not complied the procedural safeguards given in

Sub section(1) of section 52 of POTA 2002 so far as

accused no.1 and accused no.3 is concerned.

114 PW-103 Shri Suresh Walishetty is the Chief


Investigating Officer. It is stated by him that he

visited the office of Kandivali Unit at 1.00 hours

on 1.9.2003. At about 3.00 hours accused no.1

Hanif, his wife Fehmida and their daughter Farheen

as well as accused no.2 Ashrat were brought by PI

Savde and other staff members to Kandivali Office.

All the above accused were produced before him.

This witness claims to have interrogated the accused

persons when they were produced before him. It is

the evidence of PW-103 Shri Walishetty that he asked

the accused persons to engage advocate of their

choice, but accused no.1 Hanif, accused no.3 Fehmida

and their daughter Farheen declined to engage the

Advocate. Advocate Pasbola, learned Counsel

appearing for accused no.3 has invited the attention

of the Court to Para-152 of the cross-examination of

IO Shri Walishetty who has stated that he did not

remember whether it was mentioned by him in the

station diary that the accused persons declined to

engage Advocate. He claims to have mentioned the


above fact in the crime report. He further spoke

that he did not have documentary evidence to show

that the accused were apprised of their right to

consult the legal practitioner. Advocate Pasbola has

therefore submitted that there is non compliance of

the mandatory provisions of sub-section (2) of

section 52 of POTA 2002. I find it difficult to

sustain the above argument. When IO states on oath

that he interrogated accused nos. 1 to 3 and

apprised their right to consult the legal

practitioner and entry to that effect was made in

the crime report. Simply because copy of the crime

report is not produced by him, that cannot be the

ground to disbelieve the statement of IO pertaining

to the compliance of sub-section (2) of section 52

of POTA 2002.

115 Sub section (3) of Section 52 of POTA 2002

is about giving information by the police officer of

the arrest of the accused to his family members or


in the absence of his family members to his

relative. PW-97 PSI Vankoti has stated that accused

no.2 Ashrat on 31.8.2003 led him and panchas to his

house situated at Juned Nagar, Juhu Galli, Andheri

(West) and mother of accused no.2 viz: Kamarunnisa

and his two sisters i.e. Tabbassum and Nagama were

present in the house. Accused no.2 took out one tin

box from his bedroom and the tin box was found

containing 30 gelatine sticks, 3 alarm clocks and 3

detonators and the said articles were seized under

panchanama Exh.P-393-A. Accused no.2 was already

arrested at about 20.20 hours on the above day. It

is also mentioned in the seizure memo Exh.P-393-A

that the mother and two sisters of accused no.2

Ashrat were present when the above explosives came

to be recovered from his house. Thus, when the

family members of accused no.2 i.e mother and two

sisters were already present in the house at the

time of recovery of explosive substances, therefore,

there is no question of giving separate information


to the family members of the accused about his

arrest. There was thus proper compliance of sub

section(3) of section 52 of POTA,2002 so far as

accused no.2 is concerned.

116 It is admitted position that the then

Commissioner of Police Shri R.S.Sharma and the then

Home minister Shri Chhagan Bhujbal held press

conference on 1.9.2003 and it was attended by the

media persons. It is stated by DW-5 Shri Ranjitsingh

Sharma (Retired C.P.) that press note was circulated

in the above conference and it was addressed by Home

Minister. Press note Ex-D-107 was prepared which is

regarding arrest of accused persons in bomb blast

cases. Ex-D-76 is the news item regarding the

arrest of the accused persons in bomb blast cases

which was published in Times of India on 2.9.2003.

Accused nos.1 to 3 were arrested at about 3.00 hrs

on 1.9.2003 and it is the evidence of IO Shri

Walishetty that at about 12.00 hrs on 1.9.2003 all


the arrested accused persons were taken by him to

Bhabha Hospital for their medical check-up. Since

accused no.1 Hanif complained of chest pain and high

B.P., therefore he was admitted in Bhabha Hospital

and remaining accused were later on produced before

the special court for seeking the remand. It is

therefore made clear that soon after the arrest of

accused persons the press conference was held by the

officers of DCB CID on 1.9.2003 and press note

relating to arrest of accused persons was later on

published in prominent news paper i.e Time of India

on the next day. Media persons also attended the

press conference dtd.1.9.2003. Thus the fact of the

arrest of accused persons was informed to the public

at large through print and electronic media.

Therefore according to me there is proper compliance

of sub-section (3) of section 52 of POTA,2002 so far

as accused nos.1 and 3 is concerned.

117 Accused no.1 Hanif (DW-4) in his evidence


has stated that he was taken to Bhabha Hospital on

1.9.2003 and after giving discharge from the

hospital he was produced before the court and he was

remanded to police custody for 14 days. It has come

in his evidence that he was taken for medical check-

up in the hospital on alternate day. He made no

grievance in his evidence that he was not permitted

by police during the course of interrogation to meet

the legal practitioner. No such grievance is made

by accused nos. 1 to 3 in their examination under

section 313 of Cr.P.C. The net result of the above

discussion is that there is substantial compliance

of the procedural safeguards given under section 52

of POTA 2002.

CONFESSION OF ACCUSED NO.2 ASHRAT

118 It is the evidence of P.W.88 Shri Vinod

Lokhande, Dy. Commissioner of Police, that after

receipt of the order of the Joint Commissioner of

http://P.W.88/


Police (Crime) dated 10/09/2003 of recording

confession of accused no.2 Ashrat he sent letter to

ACP Shri Walishetty directing him to produce the

accused in his office situated at Bandra Kurla

Complex. Accordingly, on 11/09/2003 at 12.00 hours

accused no.2 Ashrat was produced before DCP in his

chamber. Accused was not handcuffed by the escort

party. PW-88 then directed escort party to leave

his chamber. Accused no.2 and DCP Shri Lokhande were

the only two persons in the chamber of DCP.

According to PW-88 initially he gave his

introduction to the accused and questioned the

accused about his family background. Accused was

asked whether he was tortured by police and accused

said 'no'. Accused was also asked by DCP Shri

Lokhande that whether police gave him threat or

inducement or he was pressurized or allured to give

the confession and accused replied in negative.

According to P.W.88 he also asked the accused

whether he was promised by police to make him


approver and accused gave reply in negative. On

making inquiry about the purpose of producing the

accused before DCP it was stated by accused that he

informed the IO that he wanted to give confession

and therefore he was produced by IO before DCP Shri

Lokhande. DCP Shri Lokhande then explained the

accused that he was not bound to give the confession

and if he gave the same it would be used against him

as evidence and accused said that he was knowing the

above legal position.

119 Accused was asked by DCP as to why he was

willing to give confession and accused replied that

he was accepting whatever he had done and he wanted

to know the others as to why there was feeling in

his mind to take the revenge. P.W-88 asked the

accused whether he required presence of his

relatives, friends or Advocate while giving

confessional statement and accused said 'no'. DCP

Shri Lokhande then gave him 24 hours time for


reconsideration. Part-I of the confessional

statement was recorded by DCP Shri Lokhande in the

mother tongue of the accused i.e. In Hindi language

and it was read over and explained to him.

Thereafter, DCP signed part-I of the confessional

statement and obtained signature of the accused

thereon and then directed Sr.P.I of Bandra Police

Station to keep the accused in the lock-up of the

BKC Police Station and produce him at about 1.00 p.m

on 12/09/2003. Part-I of the confessional statement

dt. 11/09/2003 is at Exh.501. Accused was again

produced before DCP Shri Lokhande at 1.30 p.m on

12/09/2003 by PSI Pawar of BKC Police Station. PSI

Pawar and other police personnel were asked by DCP

Shri Lokhande to leave his chamber. Accused was

alone in his chamber. P.W.88 asked the accused

whether the time given to him for reconsideration

was sufficient and accused replied in the

affirmative. It is the evidence of DCP Shri

Lokhande that he then asked whether there was any

http://Sr.P.I/


pressure, inducement, coercion, duress or threat for

the accused to give confession and accused said

'no'. It was again explained to the accused that it

was not binding upon him to give the confession and

if it was given it would be used as evidence against

him and accused said that he knew the above legal

position. DCP Shri Lokhande was convinced that

accused voluntarily became ready to give the

confession and thereafter he started recording

confession of the accused as per his say. After

recording the confession it was read over and

explained to the accused and accused got it

confirmed that it was written as per his version.

Accused Ashrat signed each and every page of the

confession and it was countersigned by DCP Shri

Lokhande. After completing the confession it was

certified by DCP that confession was given

voluntarily by the accused and it was written by him

as per his version and accused admitted to have

recorded it as per his say. Part-II of the


confession is at Exh.501-A.

120 After recording the confession of accused

no.2 the said confession was kept in one envelope

and envelope was sealed. One separate letter was

addressed by DCP Lokhande to the Chief Metropolitan

Magistrate and API Shri Dilip Kale of BKC Police

Station was directed to produce the accused before

the Learned CMM and hand over the sealed envelope

and covering letter to him at the time of the

production of the accused. Copy of the letter

addressed by DCP Lokhande to CMM is at Exh.P-502

121 The gist of the confession given by accused

no.2 Ashrat before DCP Shri Lokhande on 12//09/2003

is as under:

(a) Accused no.2 said that he took education

upto 9th standard and after leaving the school in

the year 1995 he started doing work of hand


embroidery. In the year 2001 he went to Surat where

he worked for 6 months. After the incident of

Godhra carnage there were atrocities on Muslims and

therefore he left Surat and came to Mumbai. He then

met with his schoolmate Jahid Patne, who was

residing at B-104, Chandresh Upvan, Lodha Complex,

Naya Nagar, Mira Road. Jahid was doing job of

operator in one pipe factory in Dubai. Accused no.2

Ashrat said to Zahid Patne that he wanted to take

revenge of atrocities which was being committed on

Muslims in India and abroad. Then Jahid Patne said

him that he would start his mission only after

coming back accused no.1 Hanif to Mumbai.

(b) Accused no.1 Hanif returned India in the

month of September, 2002. He contacted Accused

Ashrat on telephone. Accused no.2 Ashrat was not in

home but after coming to home he was informed by his

family members that Hanif gave his contact number as

28527761 and Ashrat was asked to contact him.


Accordingly, Ashrat contacted Hanif on above said

number. Hanif gave him the address of his house and

asked Accused no.2 Ashrat to see him in his house.

Ashrat reached the house of Hanif in the evening of

29/11/2002. Nasir was already present there. Nasir

disclosed them that they should explode bombs in

Mumbai with a view to take revenge of atrocities on

Muslims. At the instance of Nasir Accused no.2

Ashrat went to the house of Hanif at 4.30 p.m. on

02/12/2002. A plastic bag containing bomb was put in

the cloth bag and then Accused no.2 Ashrat and Hanif

went towards SEEPZ BEST Bus Depot for keeping the

cloth bag containing bomb in the BEST Bus. Time was

set in the bomb as 7.00p.m. Accused no.2 Ashrat

boarded the BEST bus of route no.314 alongwith cloth

bag and Hanif left the bus stop. On the next day it

was found that the above bomb was defused by police.

(c) It was stated by Accused no.2 Ashrat that

Hanif, Nasir and he himself made a plan to explode


bomb in Ghatkopar area. He approached the house of

Hanif at 4.00 p.m. On 27/07/2003 and thereafter 45

minutes Nasir came there. Hanif, Nasir and accused

no.2 had been in the loft of the house of Hanif and

by using 44 gelatine sticks and detonators they

prepared bomb. Nasir asked Ashrat to take accused

no.3 Fehmida with him for placing the bomb in BEST

Bus of Route no.340. Accused no.3 became ready to

accompany Ashrat for the above purpose.

(d) As per the plan Accused no.2 Ashrat and

Fehmida went towards Andheri and boarded BEST Bus of

route no.340. They occupied back seat near window in

the Bus and the cloth bag containing bomb was kept

by them below the seat. They had obtained ticket

for Asalfa, but they got down at Marol Pipe line Bus

Stop. On the next day, they read in newspaper that

two persons were died and 52 became injured in the

incident of bomb blast in BEST Bus at Ghatkopar.


(e) On 17/08/2003 Nasir said Ashrat and Hanif

that henceforth they would explode powerful bombs at

Mumbadevi and Gateway of India. On 23/08/2003 Hanif

asked Ashrat to see him at Andheri. Ashrat

therefore on the next day i.e. 24/8/2003 went to

Grill Market at Andheri where he saw Hanif his wife

and their both the daughters and Nasir. Nasir told

him that they were going towards Gateway of India to

select the place of planting the bomb and he asked

Accused Ashrat that he would see him in the evening.

It is stated by Accused Ashrat that he alongwith

Nasir went to Zaveri Bazar at 4.00p.m. On 24/08/2003

and Nasir selected the place of planting the bomb in

a taxi and that place was in Zaveri Bazar Market.

(f) On 25/08/2003 at 8.30 hours Accused Ashrat

went to the house of Hanif. After sometime Nasir

also came there. Thereafter they came on the road in

front of house of accused Hanif where Maruti Van of

red colour was parked. Nasir took out two boxes


from that van which contained bombs and time was

fixed therein as 1.00 p.m. Thereafter 15 minutes

Hanif alongwith his wife Fehmida and two daughters

came there in autorickshaw. They took one gray

colour air bag from the van and thereafter Hanif and

his family members left the spot. Accused no.2

Ashrat and Nasir took out sky blue colour nylon bag

from the van containing bomb and that bag was kept

in the dickey of the taxi and taxi was taken to

Zaveri Bazar. Accused no.2 Ashrat asked the taxi

driver to take the taxi near the place which was

already selected by him and Nasir. Since there was

no place of parking on that place therefore taxi

driver parked the taxi on the taxi stand. Accused

no.2 Ashrat said taxi driver that the person to whom

the bag was to be given did not come there. He

said the taxi driver that he would come back within

short time as he wanted to purchase some goods.

Accused no.2 left the taxi and he went towards

Charni Road and after crossing the distance of


about 200 meters, he heard the sound of bomb blast.

He was however arrested by police in Juhu Galli on

31/08/2003� .

122 Accused no.2 Ashrat was produced by PI Dilip

Kale before CMM at his residence on 12/09/2003 at

11.30 a.m. and accused was asked whether he was

having any complaint of ill-treatment and he replied

in negative. The statement of Ashrat was recorded

separately by CMM. According to CMM, Part-I of the

confessional statement Exh.501 was read over to the

accused by him and each and every word therein was

admitted by accused saying that the whole statement

was recorded as per his say. He has admitted of

having made signature on Part-I of the confession.

CMM thereafter read out Part-II of the confessional

statement to accused no.2 recorded on 12/09/2003

which is running into 13 pages. Accused no.2

admitted his signature on each and every page of

Part-II of the confession. He has disputed some


portion appearing on page nos. 7,8,9 and 10 of Part-

II of the confession. The disputed portion in page

7 is as under.

� I asked Hanif as to who was Nasir and Hanif

replied that Nasir was agent of Pakistan and

he knows the technique of preparing bomb,

who will teach us the same technique. I

then asked Hanif why he was doing so and

Hanif replied that he is doing everything to

liberate Kashmir. Pakistan wanted that he

should explode bombs at various places in

Mumbai so that Indians should feel insecure

in their country� .

123 Accused no.2 Ashrat has disputed following

portion appearing on page no.8 of his confession.

� Nasir said us that this time he would

explode bombs by giving challenge. I asked

him why he would give challenge and if such

challenge is given then we would be


arrested by police. Nasir then said that he

was having associates in abroad who would

apprise journalists and media persons the

fact of exploding bombs in advance� .

124 Accused no.2 has also disputed following

portion appearing on page no.9 and 10 of his

confession.

� There was already explosion in Ghatkopar

area and if again explosion is made in that

area then most of the people residing in

that area who are Gujaraties would be

panicked'� .

Disputed portion on page no.10.

� Likewise many persons residing abroad visit

Gateway of India and if bomb blast is done on

this place there would be terror in the minds

of European and American persons, who visit the

place. As a result of this, they would not


visit India and India would be defamed in the

international community� .

Rest of the portion appearing in Part-II of the

confessional statement which is inculpatory was

admitted by accused no.2 when read over to him by

learned C.M.M. Ashrat has admitted his signature

appearing on each and every page in Part-II of his

confession. Accused n.2 has admitted his role in

the matter of planting bomb in BEST Bus of Route NO.

314 at SEEPZ on 02/12/2002 and keeping the cloth bag

containing bomb below rear seat of BEST Bus of Route

NO.340 on 28/07/2003 which was exploded at 9.10 p.m

at Ghatkopar, resulting into the death of two

persons and injuring 52 persons. He has also

admitted to have conspired with accused no.1 Hanif

and Nasir to plant the bomb in motor taxis at Zaveri

Bazar and Gateway of India at noon time and he

himself went to the Zaveri Bazar in the motor taxi

on 25/08/2003 and kept nylon bag containing

explosives in the taxi and left the spot and


thereafter that taxi was blown in the explosion

resulting into the death of several persons and many

were injured.

125 Advocate Kunjuraman, learned Counsel for

accused no.2 has submitted that confessional

statement of accused no.2 is fabricated and

concocted as following facts have not been mentioned

in the confession. Accused no.2 has not stated in

his confession that the explosive articles were

recovered from his house vide panchnama Exh.393.

Accused was actually arrested on 30/08/2003 at 10.30

hours, but it is mentioned in his confession that he

was arrested on 31/08/2003 from Juhu Galli. Source

of ammunition used in the bomb blasts is not

mentioned in the confession. The place from where

the gelatine sticks were obtained and the persons

who trained the accused to assemble and to explode

bombs are silent in the confession.


126 The above submission of Advocate Kunjuraman

is not sustainable because it is already found by

this Court that accused no.2 was arrested near his

house on 31/08/2003 at about 8.20 p.m.. Therefore

not mentioning of the date of arrest as on

31.08.2003 in his confession cannot be a

circumstance to say that the confession is

fabricated and concocted. It is true that

confessional statement of accused no.2 Exh.501-A is

silent on the point that explosives were recovered

from his house. But, according to me, absence of

such fact in his confessional statement by itself

would not discredit his confession. It is also

submitted that the fact of assembling and exploding

bombs is not mentioned in the confession. According

to me, what is stated in the confession is more

important than what is not stated.

127 It is submitted by Advocate Kunjuraman that

the evidence of PW.88 DCP Shri Lokhande is silent

on following points:


a) It is deposed by DCP Shri Lokhande that

he has not gone through the Criminal Manual while

recording the confession of the accused (b) It is

stated by him that he does not remember whether he

promised to the accused that he would not be sent to

the custody of DCB CID in case he refused to give

confession. (c ) Evidence of P.W.88 DCP Shri

Lokhande shows that he had not informed the accused

that he was competent to record the confession under

POTA Act. (d) P.W.88 did not ask the accused the

date of his arrest, his period of police custody and

whether information of the arrest of the accused was

given to his relatives or not. It is thus submitted

that P.W.88 DCP Shri Lokhande made no proper inquiry

with the accused before starting to record the

confession and therefore confession of accused no.2

can not be relied upon.

128 I am not impressed by the above argument

because the procedural safeguards are given in

section 32 of POTA 2002 and if it is found that one


of the procedural safeguards in section 32 is not

followed then and then only it can be said that the

confession of accused no.2 was not recorded in free

atmosphere. Now, it is to be seen that whether the

procedural safeguards given in section 32 of POTA

2002, has been followed by P.W.88 DCP Shri Lokhande

or not.

129 It is submitted by Advocate Kunjuraman that

there is non compliance of sub section (2) of

section 32 of POTA 2002 as DCP gave no warning to

the accused that he was not bound to make confession

and if he did so the same may be used as evidence

against him. I have carefully gone through Part-I

and Part-II of the confession of accused no.2 and it

is found in both the Parts of confession that it was

specifically asked by DCP Lokhande to the accused

that he was not bound to make confession and even if

he gives the same it would be used as evidence

against him. Certificate recorded by DCP below the


confession also mention similar warning. It is thus

clearly seen that DCP Shri Lokhande has followed

the procedural safeguard given in sub section (2) of

section 32 of POTA 2002.

130 It is found from the evidence of PW88 that

accused was asked by DCP Shri Lokhande that he was

no more in the custody of investigating agency and

he was in the custody of P.W.88. Accused was asked

by DCP whether he was assaulted or threatened by

police and accused said 'no'. It was also inquired

by P.W.88 that whether accused was given any

inducement or he was pressurized by police or

allured for giving confession and accused replied in

negative. Accused gave reply to the question of DCP

that he was not promised by police of becoming

approver. Not only this, DCP Shri Lokhande asked

the accused that whether the presence of his

relatives, friends or Advocate was required at the

time of recording his confession and accused stated


that the presence of anyone is not required. After

questioning the accused to the above fact he was

granted 24 hours time for reconsideration of his

decision and when accused was produced before him on

12/09/2003 he was again subjected to questioning and

he was asked whether the time granted to him for

reflection was found sufficient or not and accused

gave reply in the affirmative. It is deposed by DCP

Shri Lokhande that after preliminary inquiry he was

satisfied that accused had decided voluntarily to

give confession and thereafter he started writing

confession as per his say. The evidence of P.W.88

DCP Shri Lokhande has not been shaken even slightly

in his cross-examination. I, therefore, find that

confession of accused no.2 Ashrat was recorded in an

atmosphere free from threat or inducement and it was

recorded in Hindi language which is mother tongue of

the accused. There was thus proper compliance of

sub section (3) of section 32 of POTA 2002.


131 From the evidence of PW-88 DCP Shri Lokhande

and the statement of accused recorded on 12/09/2003

by CMM which is at Exh.501 colly., it is found that

after recording the confession of the accused no.2

he was produced before CMM by API Dilip Kale of BKC

Police Station within 24 hours. It is also seen

from Exh.501 (colly.) that the entire confession

Part-II was read over and explained by CMM to the

accused and the portion disputed by him has been

specifically recorded by CMM in his statement. Part-

II of the confession was recorded on 12/09/2003 and

on the same day he was produced before CMM,

therefore, there is proper compliance of sub-section

(4) of section 32 of POTA Act.

132 It is found from Exh.501 (colly.) that the

CMM before whom accused was produced on 12/09/2003

recorded the statement of the accused who said that

he had no complaint of ill-treatment at the hands of

police. Accused was read over his confessional

statement and the comment of the accused regarding


his confession has been recorded by CMM and

thereafter accused was remanded to police custody.

Advocate Kunjuraman has invited attention of the

Court to sub-section (5) of section 32 of the POTA

2002 and submitted that after confirmation of the

confession by CMM accused was not sent to judicial

custody but he was sent to police custody and non

observance of mandatory provision of sub-section

(5) of section 32 of the POTA 2002 is the best

circumstance to show that the confession of accused

was not recorded in free atmosphere. Special PP Mr.

Nikam in this respect has submitted that the

provision of sending accused to judicial custody

after verification of confession is not mandatory

and in this respect the Hon'ble Apex Court in State

(N.C.T.) of India V/s. Navjyot Sandhu, reported in

2005 ALL MR (Cri)2805 (S.C) has observed in para-17

that...

The lofty purpose behind the mandate that

the maker of confession shall be sent to

judicial custody by the CJM before whom he

http://N.C.T/


is produced is to provide an atmosphere in

which he would feel free to make a complaint

against the police, if he so wishes. The

feeling that he will be free from the

shackles of police custody after production

in the Court will minimize, if not remove,

the fear psychosis by which he may be

gripped. The various safeguards enshrined

in Section 32 are meant to be strictly

observed as they relate to personal liberty

of an individual. However, we add a caveat

here. The strict enforcement of the

provision as to judicial remand and the

invalidation of confession merely on the

ground of its non-compliance may present

some practical difficulties at times.

Situations may arise that even after the

confession is made by a person in custody,

police custody may still be required for the

purpose of further investigation. Sending a

person to judicial custody at that stage may

retard the investigation. Sometimes, the

further steps to be taken by the

investigator with the help of the accused

may brook no delay. An attempt shall however

be made to harmonize this provision in

Section 32(5) with the powers of


investigation available to the police. At

the same time, it needs to be emphasized

that the obligation to send the confession

maker to judicial custody cannot be lightly

disregarded. The police custody cannot be

given on mere asking by the police. It

shall be remembered that sending a person

who has made the confession to judicial

custody after he is produced before the CJM

is the normal rule and this procedural

safeguard should be given its due primacy.

The CJM should be satisfied that it is

absolutely necessary that the confession

maker shall be restored to police custody

for any special reason. Such a course of

sending him back to police custody could

only be done in exceptional cases after due

application of mind. Most often, sending

such person to judicial custody in

compliance with Section 32(5) soon after the

proceedings are recorded by the CJM subject

to the consideration of the application by

the police after a few days may not make

material difference for further

investigation. The CJM has a duty to

consider whether the application is only a

ruse to get back the person concerned to


police custody in case he disputes the

confession or it is an application made bona

fide in view of the need and urgency

involved. We are therefore of the view that

the non-compliance with the judicial custody

requirement does not per-se vitiate the

confession, though its non-compliance should

be one of the important factors that must be

borne in mind in testing the

confession.� (Emphasis supplied)

133 Relying upon the above observations of the

Hon,ble Apex Court it is submitted by Special PP Mr.

Nikam that the further police custody of accused no.

2 was required by IO for making interrogation in

respect of the contents of the confession. Special

PP has invited attention of the court to the

evidence of PW 103 Investigating Officer in para-23

who deposed that accused no.2 Ashrat was produced

before C.M.M. Since the investigation in respect of

the case was incomplete and IO wanted to go to the

root of the conspiracy and to verify the volume of

the conspiracy, therefore he needed further custody


of accused no.2 Ashrat. Special PP Mr Nikam has

submitted that accused nos.1 to 3 were earlier

produced before the Special Court and they were

remanded to police custody till 15/09/2003 and

thereafter police custody remand of all the accused

was extended till 26/09/2003 so as to make detail

probe by I.O. into the incident of serial bomb

blasts. In all 4 offences were registered pertaining

to serial bomb blast i.e. C.R. 400 of 2002

registered at MIDC Police Station, C.R. NO.235 of

2003 registered at Ghatkopar Police Station, C.R.

No.201 of 2003 at L.T. Marg police Station and

C.R.NO.206 of 2003 registered at Colaba Police

Station. It is therefore clearly seen that there was

practical difficulty before IO so as to complete

investigation within first 14 days of the police

custody remand. He was therefore required to get

extension of the police custody remand of the

accused no.2 and the extension was granted by the

Special Court till 26/09/2003. Special Court


considering grounds putforth by IO for making

further investigation of the offence the request of

the IO for extension of police custody was granted

by Special Court, IO wanted to take further steps

with the help of the accused pertaining to the

contents of the confession and therefore application

of the IO for seeking extension of the PC of the

accused was bonafide considering the need and

urgency involved in the matter. The Special Court

gave serious thought to the request of the IO and

granted further police custody to accused no.2 till

26/09/2003. I have already held above that there is

absolutely no violation of procedural safeguard in

section 52 of POTA Act and it is now seen that

further police custody of the accused no.2 was

absolutely necessary for doing further investigation

and therefore I am of the view that there is no

breach of sub-section (5) of section 32 of POTA

2002.


134 Advocate Kunjuraman has further pointed out

that there are five confessional statements of 5

accused persons and all confessions are replicas of

each other. All the said confessional statements are

carbon copies of each other except the personal

details of concerned accused persons. To appreciate

this point, it is to be remembered that the statute

has not provided a prescribed form of recording the

confessional statement of the accused u/s. 32 of

POTA. Form of recording confession of the accused

u/s. 164 of Cr.P.C. is given in the Criminal Manual.

No such form is made available in POTA 2002.

Confession of the accused under POTA 2002 is

recorded by the officer not below the rank of

Superintendent of Police. High ranking police

officers are not required to appear before the Court

for giving evidence except proving sanction.

Investigating machinery might have prepared form for

recording confession and the same appears to have

been used by various DCP's in recording confession


of the accused. What is important to be noted here

is whether the procedural safeguards provided in

section 32 of POTA while recording confession of

accused has been complied with or not. After having

gone through the evidence of P.W.88 it is found that

he has followed all the procedural safeguards given

in section 32 of POTA. It is obvious that accused

may give similar replies as they have been arrested

in one and the same case and they have taken part in

the mission in pursuance of the conspiracy.

Therefore it is but natural that they gave similar

reply to the questions put to them. Thus, all the

points argued by Advocate Kunjuraman to disbelieve

the confession of accused no.2 fall short. After

making scrutiny of the evidence of P.W.88 I find

that his evidence has not been even slightly shaken

in the cross-examination and he has observed all the

procedural safeguards given in section 32 of POTA. I

therefore, find that accused no.2 voluntarily gave

the confession before P.W.88.

http://P.W.88/

http://P.W.88/


135 Accused no.2 appears to have been retracted

his earlier confession dated 12/09/2003 by sending

letter to the Court through Jail on 02/04/2004 which

is placed on record at Exh.D-5. In the above

retraction it is stated by accused no.2 that when he

was produced before DCP Lokhande at that time Chief

IO Shri Walishetty was present there and his

signature was obtained near about on 20 blank

papers. He was said by IO Shri Walishetty that he

should do whatever DCP will require him to do

otherwise his parents would be involved in bomb

blast case. Again his signature was taken on 7

documents. According to him, he gave no confession

and his signatures were taken on blank papers. It

is important to note here that the above retraction

is made by accused no.2 after more than 6 months

from recording his confession dated 12/09/2003.

Thus the retraction of the accused is a result of

the legal advice received by him. Accused no.2 did


not state in his examination u/s. 313 that his

signature was obtained by DCP Lokhande on blank

papers and Chief IO Shri Walishetty was present when

his confession was being recorded. It is also not

stated by him that he was threatened by IO Shri

Walishetty that he will have to act as per the say

of the DCP otherwise his parents would be involved

in bomb blast case. It was not suggested in the

cross-examination of Walishetty(PW-103) that threat

to the above effect was given by him to accused no.

2. Even no such suggestion was given in the cross-

examination of DCP Shri Lokhande that he obtained

signature of the accused on blank papers. It is thus

made clear that retraction Exh.D-5 is

inconsequential and cannot be relied upon and it

does not affect the voluntariness of the confession

Exh.501-A given by accused no.2 Ashrat.

136 It is further submitted by Advocate

Kunjuraman that accused no.2 was arrested in CR No.


75 of 2003 in connection with Ghatkopar bomb blast

still accused has in his confession admitted his

overtacts in connection with the bomb blast of

Gateway of India, Zaveri Bazar and in a case of

unexploded bomb at SEEPZ Bus Depot. When accused

was not arrested in connection with other three

cases of bomb blast then his confession in

connection with those cases can not be said to be

relevant and therefore it cannot be acted upon.

Special PP Mr. Nikam in this respect has submitted

that even though Accused no.2 was not arrested in

all four offences still he has narrated everything

in respect of his involvement in the matter of

serial bomb blasts registered at MIDC Police

Station, Ghatkopar Police Station, L.T.Marg Police

Station and Colaba Police Station. Even though he

was not arrested in connection with other 3 offenes

still he has admitted his involvement in those

matters. This itself shows the guarantee of the

facts narrated by him in his confessional statement

http://L.T.Marg/


and in that view of the matter the confession of

accused no.2 cannot be excluded from consideration

and it can be acted upon. I find force in the

above submission of Special P.P. Mr. Nikam. Even

though accused was not arrested in connection with

other three bomb blast incidents, still he

voluntarily admitted his role and narrated his

overtacts involving himself in those cases as

series of bomb blasts was in pursuance of the

criminal conspiracy hatched in between the accused

persons. Therefore, confession of the accused on

that ground cannot be excluded from consideration.

Confession of accused no.3 Fehmida

137 Confession of accused no.3 Fehmida was

recorded by DCP PW-97 Mrs.Archana Tyagi on 22.9.2003

and 24.9.2003. Gist of the confessional statement of

accused no.3 Fehmida is as under :

a] It is stated by Fehmida that she


alongwith her husband, son and two daughters is

residing in room No.D-7 Salim Chawl, Chimat Pada,

Andheri(East), Mumbai since last ten years. Her

husband Mohd. Hanif is electrician and he is also

earning by driving rickshaw. She said that her

marriage took place with Mohd. Hanif in 1984. After

the marriage her husband was doing service as a

wardboy in a hospital in Bagdad, Iraq. Again he

went to Saudi Arabia where he worked as electrician

during 1992-1998. He returned to India from Dubai

in the month of September-2002. After returning to

India he delivered a letter to accused no.2 Ashrat

which was addressed to him by PW-2 Jahid. Thereafter

Ashrat and Hanif started meeting frequently. Nasir

is the another friend of Hanif whose native is at

Hyderabad. On 2.12.2002 at about 4.00p.m Nasir came

to the house of Hanif alongwith one big envelope and

thereafter Hanif and Nasir went on loft of the

house. Thereafter half an hour Ashrat came there

and then Hanif, Ashrat and Nasir left the house and


returned home at 7.00 p.m. After watching the news

on T.V. at 10.00 p.m. they came to know that police

got one parcel of bomb in BEST bus and then Hanif

became disturbed.

b] In the last week of the month of

July-2003 Nasir came to her house alongwith one

parcel and it was kept by Hanif on the loft of his

house. On the next day at 4.00 p.m. Ashrat came to

the house of Hanif and after half an hour Nasir also

reached there. Hanif, Ashrat and Nasir sat together

in loft and thereafter sometime all the three

persons disclosed to both the daughters of Hanif

that Hindu people were doing atrocities on Muslims

and therefore they wanted to take revenge by

exploding bombs in Mumbai and after hearing this

Fehmida and their daughters agreed to help them in

their mission. It was thereafter decided that Ashrat

should keep a bomb in BEST bus of route no.340 and

Fehmida should accompany him in the above bus. As


per the plan Ashrat and Fehmida went towards Andheri

station by rickshaw and at about 7.00 p.m. planted a

bomb in BEST bus of route No.340 below the last seat

of the bus and obtained two tickets for Asalpha from

the conductor, but both got down at earlier bus stop

i.e. Marol Pipeline bust stop. After reaching home

they saw the pictures of bomb explosions and the

photos of injured persons on T.V. Nasir thereafter

went to his native at Hyderabad.

C] After some days Nasir returned from

Hyderabad at night in the house of Hanif and he was

possessing 4-5 bags. All those bags were kept by

Nasir on the loft of her house. On the next day

Ashrat came to the house of Fehmida. They closed the

door and discussed the plan of committing bomb

blasts in a crowded place in Mumbai at Mumbadevi and

Gateway of India.

D] Thereafter 3-4 days Nasir came to the

house of Fehmida and disclosed that he had decided


to explode bombs in Gateway of India and Mumbadevi

on 25.8.2003. Prior to one day of 25.8.2003

Fehmida and her both the daughters Farheen and

Sakira and Nasir hired a taxi saying taxi driver

that they wanted to see the tourist places in

Mumbai. On 24.8.2003 they fixed the spot where bomb

was to be exploded at Gateway of India. Thereafter

Fehmida, her husband and their two daughters went to

Juhu galli in auto-rickshaw where they saw Nasir.

Nasir asked Ashrat to see him in the evening and

thereafter Ashrat left the spot. Hanif and his

family members were asked by Nasir to stay in Azad

galli. After sometime Nasir came there alongwith

taxi. Fehmida, Hanif and their two daughters got

into that taxi and taxi driver was asked to take the

taxi towards Colaba. Nasir asked taxi driver to

park the taxi in front of Hotel Taj in Pay and park

area. After taking lunch in Bagdadi Hotel, all the

said persons came to Andheri in the same taxi and

asked taxi driver to come on the next day to go to


Colaba.

E] After reaching Hanif and his family

members to his house, Nasir came there after

sometime. Nasir and Hanif went to the loft and

started preparing bombs. Nasir stayed in the house

of Hanif on the night of 24.8.2003 and on the next

day early in the morning Hanif and Nasir got up and

after taking two bags from the loft, they left the

house and returned back after sometime. Ashrat came

to her house at about 8.30 a.m. After having a cup

of tea Ashrat and Nasir left her house. Fehmida, her

husband and their two daughters went towards a lane

of Rubi Coach Co. where Nasir and Hanif were found

standing with one Maruti car. Nasir took out one bag

from red colour Maruti car and handed over it to

Hanif and the said bag was placed by Hanif in auto-

rickshaw. Hanif and his family members including

wife and daughters by that rickshaw went to Juhu

galli. On the way Hanif said to his wife Fehmida


that time of 1.00 p.m was set in the bomb and the

same time was fixed in the other bomb which was

handed over to Ashrat.

F] Rickshaw was parked in Barfiwala lane.

Hanif got down from rickshaw and went to fetch a

taxi. The airbag containing bomb was taken out from

the rickshaw and it was placed in the dickey of the

taxi and the dickey was locked. Taxi was then taken

towards Colaba via Hajiali, Pedder Road and taxi

driver was asked to park the taxi in pay and park

lot in front of Hotel Taj. While getting down from

the taxi, taxi driver was seen chit-chatting with

his friend. At that time it was 12.35 hrs and

therefore Hanif asked taxi driver not to waste the

time and park the taxi in pay and park lot and be

seated in the taxi waiting for themselves who would

return within 15 minutes.

G] Hanif hired another taxi and reached


Santacruz at about 2.15 p.m. where he contacted

Nasir on PCO. Thereafter they hired rickshaw and

went towards their home at Juhu galli. After

reaching home they saw news of bomb blast on T.V.

After two days Ashrat came to their house to whom

Hanif gave Rs.2000/-. When Hanif was in the house

on 1.9.2003 police came there and arrested Hanif,

Fehmida and their both the daughters. Ashrat

accompanied the police. Police took search of her

house and they found explosive substances kept in

the loft of the house and those were seized� .

Evidence of DCP Mrs Archana Tyagi, who recorded confession of Accused no.3 Fehmida.

138. It emerges from the evidence of DCP

Mrs.Archana Tyagi-Sharma (PW-90) that on 22.9.2003

she received letter (Ex-P-520 )from Jt.C.P.(Crime)

Mumbai directing her to record the confession of

accused no.3 Fehmida. In pursuance of the above


letter DCP directed IO Shri Walishetty vide letter

(Ex-P-521) to produce the accused before her on

22.9.2003 itself. Accordingly API Phadake and the

staff members of DCB CID Unit No.IX produced accused

Fehmida before DCP at 6.00 p.m. on the above day. It

is the evidence of PW-90 that she asked API Phadake

and police staff to leave her chamber and instructed

guards not to allow anybody to enter in her

chamber. DCP made the accused comfortable by asking

her some questions about her family background. DCP

(PW-90) told the accused that she was not connected

with the investigation of the case in any manner and

DCP then apprised the accused that she was no more

in the custody of the DCB CID and she was taken in

her personal custody. DCP asked the accused whether

she had any complaint against anybody and accused

said 'no'. DCP further asked the accused the reason

of her production before PW-90 and accused said that

since she expressed willingness before IO to give

the confession and therefore she was produced before


DCP for recording her confession. DCP then asked

the reason of her giving confession and she replied

that she saw the dead bodies and injured persons in

the television after the bomb blast and therefore

she had decided to make the confession. It was

explained to the accused by DCP that she was not

bound to give the confession and if she gives it the

same can be used in the court as evidence against

her. Thereafter accused said that she was knowing

this legal position and still she wanted to give the

confession.

139 PW-90 spoke that accused was asked by her

whether she was induced, coerced or threatened by

anybody to give the confession and she replied in

the negative. Accused was also asked whether she was

promised by anybody that she would be made approver

and it was stated by accused that no such promise

was given to her. According to DCP the answers given

by the accused to her questions made her to realize


that accused wanted to give the confession

voluntarily. She was then informed by DCP that she

would be given time for 40 hours for thinking over

whether to give confession or not and in the

meantime she would be lodged in the lock up of

Chembur Police Station and would be called back

again on 24.9.2003. Accused Fehmida was also asked

by PW-90 whether she wanted to engage advocate or

to keep present any of her relative or friend on

24.9.2003 at the time of recording her confessional

statement and she declined to have the above

facility. It is stated by PW-90 that she recorded

first part of the confession of the accused in her

handwriting in the language known to the accused

i.e. Hindi language in question and answer form and

she then obtained signature of the accused on each

and every page of the confession which is at Ex-

P-22.

140. Accused Fehmida was later on handed over by


DCP to the custody of API Bhujbal of Chembur Police

station and he was instructed to take care that

nobody should meet the accused. Sr.PI of Chembur

police station was directed by DCP to produce the

accused before her on 24.9.2003 at 11.00 a.m. The

letter to the above effect addressed to Sr.PI is

placed on record as Ex-P-523.

141 Evidence of DCP discloses that as there was

no lock-up for female prisoners in Chembur police

station, therefore accused was required to be

shifted in the lock-up of Ghatkopar police station

and letter to that effect was sent to Sr.PI of

Ghatkopar police station, copy of which is at Ex-

P-524. It is seen from Ex-P-524 that Sr.PI of

Ghatkopar police station was directed by DCP Zone-

VI, Mumbai that accused should be kept in separate

lock-up and special guard consisting responsible

lady constable be deputed on the lock-up and the

guard deputed should be checked up regularly by


Sr.PI and other officers. Sr.PI of Chembur police

station was instructed to produce the accused

before DCP at 11.00 hrs on 24.9.2003.

142. As per the above direction accused no.3

Fehmida was produced before DCP (PW-90) at about

11.00 hrs on 24.9.2003 by API Bhujbal and staff

members. Accused was taken in the chamber of DCP

and API and other staff members were asked to leave

the chamber. DCP herself and the accused were the

only two persons in the chamber of PW-90. It was

asked to the accused by DCP whether the time granted

to her for reflexion was sufficient and accused

replied that she needed no more time for reflexion.

It was specifically apprised by DCP to the accused

that she was not bound to make the confession and if

it is made by her the same would be used against her

as evidence. Few more questions were asked by DCP to

the accused to know whether she was threatened or

promised by anybody to give the confession and


accused spoke that she was not promised by anybody

to make approver and she herself decided voluntarily

to give the confession. Ex-P-525 is the copy of the

written appraisal in Hindi language made by DCP to

the accused that accused was not bound to give the

confession and if same is given then it would be

used as evidence against her. DCP then got herself

confirmed that accused had decided to give the

confession voluntarily and she thereafter started

recording her confession as per her say of the

accused. Confession was scribed by DCP herself in

Hindi language and after completing the same it was

read over and explained to the accused and she was

asked whether it was recorded as per her say and

accused replied that the confession was recorded as

per her version. Accused signed each and every page

of the confession and DCP also counter signed each

and every page of the confession which is at Ex-

P-522A. DCP thereafter recorded certificate at the

bottom of Ex-P-522-A to the effect that she was


satisfied that accused voluntarily made confession

before her and it was recorded by her in the

language of the accused and accused admitted to have

recorded the confession as per her version. PW-90

made separate note below the confession to the

effect that the work of recording confession of

accused Fehmida was started at 11.05 hrs. and it was

concluded at 18.45 hrs on 24.9.2003. Since the

working hours of the court was over therefore, it

was decided to produce the accused before CMM on the

next day i.e on 25.9.2003 in the morning session and

till that time arrangement was made to keep the

accused in the lock-up of Ghatkopar police station.

143. Ex-P-625 is the statement of the accused

recorded by CMM at 11.00 hrs on 25.9.2003. In that

statement accused Fehmida has clearly stated that

she had no complaint of ill-treatment against police

and she gave confession before police as per her own

accord. She made it clear that her confession was


not obtained by use of any force and inducement and

it was true and correct. Statement Ex-P-625 is

signed by the accused and on the same day CMM sent

the confessional statement of the accused to Special

Court under POTA vide covering letter Ex-P-626. It

is stated in the above covering letter that accused

was produced before him by API Bhujbal of Chembur

police station alongwith one sealed envelope. He

opened the sealed packet and thereafter he asked API

Bhujbal and escort party to leave his chamber. CMM

thereafter called his steno inside his chamber at

about 11.20 a.m. The contents of the confessional

statement of Part-I and Part-II were read over and

explained by CMM to the accused and she admitted to

have signed both the statements. Contents of the

Part-I and Part-II of confession were read over to

the accused by CMM and accused admitted to have

recorded it as per her say and contents of the

confession were true and correct.


144. Adv. Pasbola Ld. Counsel appearing for

accused no.3 has submitted that after recording the

confession of accused no.3 she was not sent to

judicial custody and this clearly shows breach of

sec.32(5) of POTA, 2002. Special P.P. Mr. Ujjwal

Nikam has submitted in this respect that recording

of confession of accused no.3 was completed at

18.45 hrs on 24.9.2003 and on the next day i.e

25.9.2003 at 11.00 hrs accused no.3 was produced

before CMM. Statement of accused no.3 was recorded

by CMM and thereafter accused no.3 instead of

remanding to judicial custody she was given in the

custody of API Bhujbal and the special court

remanded accused no.3 to judicial custody on the

next day i.e on 26.9.2003. Accused no.3 should have

been sent to judicial custody on 25.9.2003 and not

on 26.9.2003. There was delay of one day in taking

the accused no.3 in judicial custody. It appears

that, the Ld. C.M.M. was not aware of the legal

position of remanding the accused to judicial


custody after the verification of the confessional

statement of the accused was over as per sec.32(5)

of POTA, 2002. Ld. Spl.P.P. Mr.Nikam, on this point

has invited the attention of the court to the

observation of the Hon'ble Apex court in Parliament

Attack Case that non compliance with the judicial

custody requirement does not per se vitiate the

confession. In view of this principle I find that

taking accused no.3 in judicial custody on 26.9.2003

instead of 25.9.2003 cannot be a circumstance to

vitiate the confession.

145. It is further submitted by Adv. Pasbola that

PW-90 did not ask question to accused no.3 as to why

she wanted to give the confession. She was also not

asked whether she would like to engage an advocate

or keep her relatives or friends present at the time

of recording of her confession. Above argument of

Adv. Pasbola shows that he did not go through the

evidence of PW-90 carefully. PW-90 has stated in


her evidence that it was asked by her to accused no.

3 the reason of her giving confession and accused

replied that she saw the dead bodies and injured

persons in the television after the bomb blast and

therefore she had decided to give the confession. In

reply to another question accused no.3 Fehmida

stated that she did not want to avail the facility

of engaging advocate or keeping her relatives or

friend present in the chamber of DCP at the time of

recording of her confession. DCP Mrs.Archana Tyagi-

Sharma has taken every care to see that the

confession of accused no.3 Fehmida is recorded in

free atmosphere.

146. It is further pointed out by Adv.Pasbola

that while recording the confession the mandatory

questions were not asked by DCP (PW-90) to accused

no.3 that when it occurred her first to give the

confession before police and as to when she was

arrested by police and was lodged during her police


custody remand. According to me the above questions

cannot be termed as mandatory questions as they do

not find place in sec 32 of POTA. Whatever

procedural safeguards are given in section 32 have

been followed by DCP PW-90. Not only this some other

important questions have also been put by DCP to

accused no.3 so that her confession can be recorded

in free atmosphere. She was given more than 40 hours

time for reconsideration of her decision. Apart

from the oral appraisal accused no.3 was apprised in

writing vide Ex-P-525 that she was not bound to give

the confession and if she gives the same it would be

used as evidence against her. PW-90 has also

maintained contemporaneous record Ex-P-520 to Ex-

P-526 while recording the confession of accused no.

3. Her evidence has not been discredited in her

cross examination.

147. It was further argued that accused no.3 has

retracted her confession on 20.4.2004 which is


placed on record as Ex-D-8. It is the case of

accused no.3 in her retraction that police had been

to her house at about 7.30 p.m on 30.8.2003 and they

threw her all the household articles outside the

house and the family members of accused nos.1 and 3

were driven out of the house and it was locked.

Accused Nos.1, 3 and their family members were taken

to the office of Bandra Crime Branch where they were

questioned. Since accused no.3 could not reply to

any of the question therefore she was slapped by the

police officer. Her daughter Farheen was threatened

that she would be made to lie on the ice. Accused

no.1 was beaten. Police were forcing the accused to

act as per their direction. After some days accused

no.3 was taken twice in the office of DCP where her

signature was taken on some papers. It is further

mentioned in the retraction Ex-D-8 that she was

threatened in the office of Bandra Crime Branch that

her son and daughters would also be involved in bomb

blast case if she refused to make signatures on the


papers. It is important to note here that accused

no.3 in her examination u/sec. 313 of Cr.P.C. has

not stated any of the above allegations and

therefore it is clear that the contents of

retraction Ex-D-8 is the after thought version of

the accused which is made only to with a view to

falsify the prosecution story.

148. After having assessed the evidence of PW-90

it is found that she has observed the correct

procedure in recording the confession of accused no.

3. The procedural safeguards given in section 32 of

POTA,2002 have also been observed by her. She has

also maintained contemporaneous record pertaining to

the confession of accused no.3 and her evidence has

not been shaken in her cross examination. At the

cost of the repetition I say that the evidence of

PW-90 Mrs.Archana Tyagi-Sharma inspires confidence

of the court and therefore her evidence is reliable.


Confession of Accused No.1 Hanif recorded by

Dy.Commissioner of Police Shri Vinod

Lokhande (PW-88) on 24.9.2003 :

149 Accused no.1 Hanif was arrested on 1.9.2003

in connection with C.R.No.235 of 2003 of Ghatkopar

Police Station (DCB CID C.R.No.75 of 2003) and he

was remanded to police custody by Special Court till

15.9.2003 which was later on extended till

26.9.2003. Chief investigating officer Shri Suresh

Walishetty deposed that accused nos.1 to 3 were

interrogated by him during their police custody

remand and during the interrogation, accused nos. 1

to 3 and one Nasir were found involved in bomb blast

cases. While doing interrogation of accused no.1

Hanif on 4.9.2003, he expressed willingness to give

his confession. Therefore, IO Shri Walishetty

apprised this fact to Jt. Commissioner of Police

(Crime), Greater Mumbai, who vide his order dtd.

20.9.2003 directed Dy. Commissioner of Police, Zone-

X Shri Vinod Lokhande to record the confession of


accused no.1 Hanif. It is testified by DCP Shri

Lokhande that he received communication to the above

effect on 22.9.2003 and on the same day he sent

letter to IO Shri Walishetty directing him to

produce accused no.1 Mohd. Hanif in his office on

the same day. API Shri Phadake of DCB CID produced

accused no.1 Hanif before DCP Shri Lokhande in his

office on 22.9.2003 at 5.00 p.m. It is the evidence

of PW-88 Shri Vinod Lokhande that he thereafter

asked API Phadake and other police staff to leave

his office keeping accused Hanif alone in the

chamber. He thereafter closed the door of the office

and thereby ensured that nobody other than himself

and the accused were present in the office.

150 PW-88 Shri Lokhande gave evidence to the

effect that accused was informed by him that he was

no more in the custody of DCB CID. He thereafter

made inquiry of the accused asking his name,

parentage and other details. Accused was questioned


whether he was threatened, tortured, enticed or

pressurized by police to give the confession and

accused gave reply in the negative. Accused was

asked whether he was promised by police to become an

approver or he would be given lesser punishment in

case he gave the confession and accused replied in

negative. DCP Shri Lokhande spoke that he explained

the accused Hanif that he was not bound to make a

confession and if he made the same, it would be used

as an evidence against him. Even after explaining

to the accused the legal consequences of his giving

confession, he did not deviate from his stand. DCP

Shri Lokhande gave 24 hours time to the accused to

think over on the point of giving confession and he

thereafter directed Sr.PI of BKC Police Station to

keep accused no.1 Hanif in the lock-up of their

police station under escort. Sr.PI was directed not

to allow anybody to see the accused without his

(DCP) permission and to produce the accused again

before him on 24.9.03 at about 2.00 p.m.


151 It is seen from the evidence of DCP Shri

Lokhande that he interacted with accused Hanif in

his mother tongue i.e Hindi language. Questions put

to the accused and answers given by him have been

recorded in Part-I of the confessional statement

which is signed by accused and DCP Shri Lokhande and

the same is placed on record at Ex.P-506.

152 DCP Shri Lokhande spoke that as per his

direction accused was produced before him in his

chamber at 2.30 p.m on 24.9.2003 by PSI Bhalerao who

was attached to BKC Police Station. He asked PSI

Bhalerao and other police staff to leave his chamber

and thereafter DCP Lokhande and the accused remained

in the chamber of PW-88. The evidence of Shri

Lokhande discloses that it was ensured by him that

except he himself and the accused, there was no

other person in his chamber. Accused was asked by

DCP whether the time granted to him was sufficient


for reconsideration of his decision to make the

confession and accused gave reply in the affirmative

and said that he needed no more time for reflection.

Accused was again questioned whether he was

threatened, tortured, enticed or promised by the

police to make the confession and he said 'no'. He

was again explained that he was not bound to give

the confession and if it was given, the same would

be used as evidence against him and accused said

that he was aware of the above legal position.

After asking few more questions to the accused, DCP

Shri Lokhande was convinced that accused Hanif had

decided to give the confession voluntarily and

thereafter he recorded the confessional statement of

the accused as per his version. After recording the

confession it was read over and explained by DCP

Shri Lokhande to the accused and accused admitted to

have recorded it as per his say. DCP Shri Lokhande

thereafter put his signature below the confession of

the accused and obtained signature of the accused on


each and every page and then recorded certificate

to the effect that accused Hanif voluntarily gave

the confession. Evidence of PW-88 shows that he

made his signature at 19 places and obtained

signature of the accused at 18 places on the second

part of the confessional statement which is at

Ex.P-506-A.

153 Gist of the confession of accused no.1 Hanif

is as under:

(i) It is stated by accused Hanif that

after leaving college education by him in the year

1982 he worked as Lathe Machine Operator and

salesman at different places. He thereafter got job

at Saudi Arabia as catering helper, where he worked

till 1984 and returned to India. He then started

plying rickshaw on hire in Mumbai. In the month of

June-1985 he got job of helper in a hospital at

Bagdad and returned to India from Bagdad in the

month of August-1986 and thereafter started doing


work of electrician in Mumbai. He again went Abroad

i.e Jeddah on 9.9.92 where he did the job of

electrician till September-1999. In the month of

August-2000 he started working as electrician in

Dubai and after completing contract for two years,

he returned to India in the month of September-2002.

Since the month of October-2002 he is earning by

plying the auto-rickshaw on hire bearing No.MH-02-

H-2899 which is owned by his brother-in-law.

(ii) It is stated by accused Hanif in his

confession that when he was working in Dubai he came

in contact with Pakistani Nationals i.e Safakat,

Abid, Khalidbhai, Samiulla, Bilal and Rehan and two

Indians viz: Jahid(PW-2) and Nasir. Accused Hanif

used to see above persons in Masjid at the time of

Namaj. There used to be discussion in Masjid about

the atrocities committed on the Muslims in Gujarat.

Samiulla showed them CD pertaining to the atrocities

on Muslims after Godhra Riot. After viewing the CD,


Hanif said � mere man me gusse ki aag bhdak gai� .

(iii) In the month of August-2002 Hanif,

Jahid and the above Pak Nationals gathered in the

house of Nasir at Dubai for taking meal. Thereafter

Pak associates of Hanif motivated Hanif, Jahid and

Nasir for doing terrorist acts by exploding bombs at

various places in India for taking revenge of Godhra

incident. Thereafter Jahid and Nasir responded that

they were ready to act accordingly for which they

needed necessary funds and explosives. Safakat and

Abid said them not to worry for funds and

explosives. They promised to provide above things to

Jahid and Nasir. After discussion it was decided

that Hanif, Nasir and Jahid should collectively make

effort alongwith their associates in India for

exploding bombs in prominent crowded places at

Mumbai so as to kill maximum number of persons. The

above first talk of conspiracy for causing terrorist

acts in Mumbai did take place in the house of Nasir


at Dubai in the month of August-2002.

(iv) Hanif returned India from Dubai in

the month of September-2002. Brother of Jahid was

residing in Mumbai. Hanif delivered him a packet

which was sent by Jahid. The land-line number of

Ashrat was given to Hanif by Jahid which is

26240267. Hanif called Ashrat to his home and

thereafter they frequently started meeting each

other. Nasir also returned India and in the month of

October-2002 he contacted Hanif and said him that he

was residing in Sarvoday Nagar, Ghatkopar.

Thereafter 15 to 20 days Nasir again contacted hanif

and both planned of exploding time bombs in taxi,

BEST bus and trains in Mumbai so as to cause panic

in the minds of the people as was conspired in

Dubai.

(v) In the last week of the month of

November-2002 Nasir came to the house of Hanif and


then Ashrat was also called there. Nasir disclosed

them that he had brought all the necessary articles

of preparing bomb and they would explode bombs in

the local train, taxi and BEST buses as per their

plan.

(vi) On 2.12.2002 at about 4.00 p.m Nasir

came to the house of Hanif alongwith one cloth bag

which contained bomb made of gelatine sticks, timer

and battery. Ashart reached the house of Hanif at

4.30 p.m. The cloth bag containing the bomb was kept

on the loft of the house of Hanif. Pointing out the

bomb kept in the cloth bag, Hanif said to Ashrat

that he would have to keep the said bomb in the BEST

bus of route No.312 at SEEPZ Depot. Hanif and

Ashart thereafter left the house at 5.15.p.m

alongwith the cloth bag containing bomb so as to

keep the same in the BEST bus of route No.312 at

SEEPZ Depot. After waiting on the BEST bus stop,

BEST bus of 312 entered in the depot and then Ashrat


with cloth bag in his hand boarded the bus and asked

the Hanif to leave the spot. Hanif on the same day

night at 10.30 p.m watched the news on T.V that one

live bomb was found in the BEST bus of route No.312.

Thereafter Hanif, Ashrat and Nasir came to know

that bomb kept in the BEST bus was not exploded. In

the second week of month of July-2003 Hanif and

Nasir had been to Marol to a shop for purchasing

prepaid SIM card of Airtel. Nasir purchased the SIM

card in the name of Habib Omar which was bearing No.

9892077831.

(vii) Nasir and Ashrat came to the house of

Hanif at about 4.00p.m on 27.7.2003 and all the

three persons by using gelatine sticks and alarm

clocks prepared time bomb for being kept the same in

BEST bus of route No.340 on the next day. Ashrat

had been to the house of Hanif in the evening of

28.7.2003. Hanif asked his wife Fehmida to

accompany Ashrat for keeping the time bomb in the


BEST bus of route no.340. The above time bomb was

exploded at about 21.10 hrs. resulting into the

death of two persons and 60 persons became injured

and property lacs of rupees was damaged. Nasir

thereafter went to his native place at Hyderabad on

29.7.2003. He returned to Mumbai on 16.8.2003 in

red colour Maruti Van and 4 bags were found kept in

the dickey of the van and each bag contained 500

gelatine sticks. Nasir directly went to the house

of Hanif at about 10.00 p.m. and kept those four

bags of gelatine on the loft of his house. At that

time Nasir said to Hanif that they would cause

powerful blast by using the explosive substances

brought by him. On the next day Ashrat was also

called in the house of Hanif and all the three

persons planned to cause terrorist acts in Mumbai by

exploding bombs in crowded places on 25.8.2003 at

Gateway of India and in Zaveri Bazar. Spots of

explosion were fixed by them on 24.8.2003 at Gateway

of India and Zaveri Bazar.


(viii) On 22.8.2003 Nasir and Hanif went

at Marol to a shop for purchasing SIM Card. Nasir

purchased the SIM card of Airtel in the name of

Habib Omar and it was bearing no.98902451164. The

said SIM card was handed over by Nasir to Hanif and

asked Hanif to discontinue his earlier card. On

24.8.2003 Hanif, his wife Fehmida, their two

daughters and Nasir hired a taxi saying taxi driver

that they wanted to see tourist places in Mumbai.

On above day Nasir and Hanif fixed a place i.e. Pay

and Park site in front to Hotel Taj at Gateway of

India, Mumbai for causing bomb blast in taxi at noon

time on the next day. Nasir also asked Ashrat to

carry the bag containing explosives in a taxi so as

to cause explosion of bomb in Zaveri Bazar at about

1.00 p.m. on 25.8.2003. As per the above plan

accused no.1 Hanif, his wife accused no.3 Fehmida

and their both the daughters hired the same taxi

from Andheri and airbag containing the time bomb was


kept in the dickey. Thereafter taxi was taken to

Colaba via Worli Sea-face, Hajiali, Pedder Road and

time of 1.00 p.m. was set to the bomb so as to cause

explosion in the taxi. Hanif and Fehmida asked the

taxi driver to park the taxi in � pay and Park site�

in front of Hotel Taj and keep waiting in the taxi

till their arrival. Thereafter Hanif and his family

members left the spot and then Hanif contacted Nasir

on his mobile no.98902451164. On the same day at

noon time bombs planted in both the taxis were

exploded at Zaveri Bazar and Gateway of India

resulting in the death of several persons and many

persons became injured.

154 PW-88 Shri Vinod Lokhande testified that

confession of accused no.1 Hanif was put by him in

envelope and envelope was sealed. The sealed

envelope alongwith one covering letter addressed to

Chief Metropolitan Magistrate was handed over by him

to PSI Shaikh and he was directed to produce accused


and the sealed envelope as well as covering letter

before CMM. It is seen from the confidential letter

of CMM addressed to the Special Court dated

26.9.2003 which is at Exh.P-506-B that accused Hanif

was produced before him by PSI Shaikh and a sealed

envelope was also handed over to him. CMM

thereafter asked PSI Shaikh and staff members to go

outside the chamber and he called his stenographer

in his chamber. After opening the sealed envelope

at about 1.45 p.m. on 25.9.2003 he read over the

contents of the Part-I of the confession to the

accused and accused Hanif admitted that the contents

were written correctly and he also admitted his

signature on every page of Part-I of the confession.

C.M.M. thereafter read over the contents of Part-II

of the confession to accused Hanif and it was stated

by accused Hanif that the contents regarding

hatching of the conspiracy in between him, Nasir and

Jahid in the house of Nasir at Dubai of committing

terrorist acts in Mumbai were not stated by him


before DCP. He has specifically stated that contents

from page no.5 onwards starting with the sentence

� Mai September 2002 Bharat vapas aate samay.....�

till the sentence i.e.� lane me ek under

construction building ke compound mai taxi ghumakar

rokane ko kaha� on page no.15 were told by him to

Shri Vinod Lokhande.

155 It was further stated by accused Hanif that

all the contents of Part-II of his confession read

over to him on page No.16,17 and 18 were recorded by

DCP Shri Lokhande as per his say. It is specifically

mentioned in the letter of CMM that accused Hanif

admitted of his having made confessional statement

before DCP and he further spoke that the same was

made by him on his own accord without use of force,

threat or any inducement. He admitted the contents

of the confession to be true and correct except the

fact of hatching conspiracy at Dubai in the house of

Nasir. From the letter of the CMM which was


addressed to Special Court dated 26.9.2003 it is

clearly seen that all the contents of Part-I and

Part-II of confession of accused Hanif was read over

by CMM to him and except the fact of hatching

conspiracy in between Jahid, Nasir and Hanif in the

house of Nasir at Dubai of doing terrorist acts in

Mumbai, all the other contents have been admitted by

him. Accused Hanif has admitted his role of

preparing the bombs in his house with the aid of

Nasir and Ashrat and keeping the bombs in the BEST

bus of route No.312 on 2.12.2002 and in the BEST bus

of route no.340 on 28.7.2003. It is also admitted

by him that survey was conducted by him and his

associates for planting the bombs in Zaveri Bazar

and Gateway of India and after locating the spots,

the airbag containing the explosives was kept in the

dickey and same was parked on 25.8.2003 in the site

of Pay and Park in front of Hotel Taj and taxi

driver was asked to seat in the taxi till his

arrival and thereafter at 1.00 p.m. there was blast


in the taxi and several persons died on the spot and

many became injured and lacs of property was

damaged.

156 Exhibit-P-623 is the statement of accused

Hanif which was recorded by CMM, Esplanade, Mumbai

in his chamber on 25.9.2003 at about 1.45p.m. This

statement of accused shows that accused Hanif stated

before CMM that he had no complaint of ill-treatment

against the police. The confessional statement of

accused was recorded at his own accord by DCP.

According to the accused some sentences appearing in

his confession were not stated by him. It is further

stated by accused Hanif that his statement was not

obtained by any force, threat or any inducement.

Contents of his confessional statement are true and

correct except some sentences reference of which is

made supra in the letter of CMM addressed to Special

Court. Statement Exh.P-623 bears signature of

accused Hanif and CMM.


157 Advocate Wahab Khan Ld. Counsel appearing

for accused no.1 Hanif submitted that confession of

the accused recorded under sec.32(1) of POTA 2002 is

admissible only against the maker and not against

the co-accused and this has been observed by Hon'ble

Apex Court in para-42 of judgment in State V/s.

Navjot Sandhu, reported in 2005 SCC (Cri) 1715.

Since the above submission is based upon the

observation of the Hon'ble Apex Court in the above

cited case, therefore, it is accepted. It is

further submitted that the minor daughter of accused

no.1 which was subsequently discharged was also

arrested by police alongwith accused no.1 and his

wife. The minor daughter of accused no.1 was

arrested by DCB CID only with an ulterior motive to

put pressure upon accused no.1 Hanif so that he can

give confession as desired by the IO. Therefore so

called confession of accused no.1 cannot be

considered as his voluntary statement. The above


submission is also not acceptable because accused

no.1 Hanif, his wife Fehmida and his both the

daughters travelled from Andheri to Gateway of India

in the taxi in which the bag of explosives was kept

in the dickey and the same taxi was blown in the

blast on 25.8.2003 at about 1.00 p.m. It was prima-

facie found by IO that daughter of accused no.1 viz:

Farheen was also involved in the bomb blast and

therefore she was arrested and when it was

subsequently transpired that she was no more

connected in the offence and therefore she was

discharged as per sec.169 of Cr.P.C. Accused no.1

Hanif has also admitted before CMM all his overt-

acts pertaining to his role in the series of bomb

blasts. Accused no.1 has disputed some of the

sentences in his confession saying that those were

not stated by him. He could have likewise retracted

his entire confession before CMM but he did not do

so. Accused no.1 Hanif could have stated before CMM

that as he was under pressure because of the arrest


of his minor daughter therefore he was constrained

to give the confession as desired by the police, but

it was stated by accused Hanif in clear terms before

CMM that his confession was not obtained by use of

force, threat or any inducement. Therefore, the

above submission of Adv. Wahab Khan cannot be

accepted as it has no foundation.

158 It is further pointed out by Adv. Wahab Khan

that accused Hanif has retracted his confession by

sending letter to the Court which is at Exh.D-7 dtd.

1.4.2004 and therefore such retracted confession

cannot be acted upon. Special PP Mr. Ujjwal Nikam

submits that accused no.1 Hanif took more than six

months time to disown his confession and it was done

by him after getting legal advice of his Counsel.

Therefore the contents of retracted confession

Exh.D-7 is the outcome of the legal advice received

by the accused and therefore said retraction is

liable to be ignored.


159 I have gone through application Ex.D-7 dtd.

1.4.2004 made by accused no.1 Hanif retracting the

confession. It is stated in the above application

that he returned home at 8.00 p.m. on 30.8.2003

from Mosque. He found police personnel taking

search of his house. He asked them the reason of

taking search but they gave no reply. He was

handcuffed by one of them. His wife and daughters

were taken to the office of Bandra Crime Branch

alongwith him. All were asked questions about the

Gateway of India and Zaveri Bazar blasts and they

were assaulted. Police Officer Mr.Rakesh Maria

slapped his wife as a result of which there was

paining in her right ear. His wife and daughters

were taken in Court. As he was not feeling well due

to raising of B.P. he was taken in Bhabha Hospital.

During police custody remand police officers took

his signature on blank papers. When he raised

objection he was threatened by police saying that


his wife and daughters would be made naked in front

of him and they would be made to sleep on ice. He

therefore could not reject the demand of the police.

On one day he was taken before DCP Shri Lokhande who

copied one typed paper in Hindi and asked the

accused to sign the same. Accused was asked that his

daughter would be released only after his having

made signature on the papers which were already

written. He was later on apprised that his signature

was taken on his confessional statement.

160 It is worth to be mentioned here that the

allegations made by accused no.1 in his retraction

application Ex.D-7 have not been put by him to IO

PW-103 Shri Wallishety in his cross-examination.

Accused no.1 Hanif did not state contents of Ex.D-7

in his examination under section 313 of Cr.P.C. It

is not suggested in cross-examination of DCP Shri

Lokhande (PW-88) that he copied down one typed paper

and obtained signature of the accused Hanif on that


paper saying that his daughter would be released

after his making signature on the hand-written paper

i.e confessional statement. Accused no.1 Hnaif was

taken in judicial custody in DCB CID C.R.No.157 of

2002 on 6.12.2003. Thereafter four months he made

application Ex.D-7 for retracting the confession. I

therefore find force in the submission of

Spl.P.P.Mr.Nikam that accused no.1 disowned his

confession after getting legal advice from the

Advocate and he gave no proof in any form to

substantiate the allegations made by him in his

application Ex.D-7.

161 Accused no.1 Hanif gave defence evidence as

DW-4. His evidence is silent about his grievance

that his wife Fehmida was slapped by police officer

Mr.Rakesh Maria as a result of which there was

paining in her right ear. He also made no whisper

in his evidence to the effect that during his police

custody remand police took his signatures on blank


papers and on raising objection by him he was

threatened by police that his wife and daughters

would be made naked in front of him and they would

be made to sleep on ice. At the cost of the

repetition, it is worth to be mentioned that the

above serious allegations appearing in Ex.D-7 have

not been stated by accused no.1 Hanif in his

examination under section 313 of Cr.P.C. nor in his

evidence at Ex.D-102. Accused Hanif spoke in his

evidence that he was assaulted by police during his

first police custody remand for 14 days. It is a

matter of record that after the arrest, accused nos.

1 to 3 were remanded to police custody till

15.9.2003. After completing first police custody

remand, they were produced before Special Court on

15.9.2003. It is seen from the order of the Special

Court passed in Miscellaneous Application No.244 of

2003 (Ex.D-82) in remand application No.35 of 2003

dt. 15.9.2003 that accused nos.1 to 3 were asked by

the court whether they were having any complaint


against police and they answered that they had no

such complaint. Accused No.1 Hanif has thus made

baseless allegations against the high ranking police

officers in support of his defence. Ex.D-7 is the

outcome of the afterthought version of accused no.1

Hanif with a view to give go bye to his confessional

statement which is recorded by PW-88 after following

the due procedure.

162 Accused No.1 Hanif has admitted in his

cross-examination that he was read over his

confessional statement dtd. 24.9.2003 by Chief

Metropolitan Magistrate and the disputed portion in

his confession was noted by CMM. Thereafter his

statement was recorded by CMM which bears his

signature. When accused no.1 Hanif was under cross-

examination and while he was admitting his statement

recorded by CMM at the same time accused no.2 Ashrat

got up in the dock and instructed accused no.1 Hanif

to give proper answers after understanding the


questions put to him by Spl.P.P. My Ld. predecessor

then warned accused no.2 not to interfere with the

court procedure. From this event it is revealed that

accused no.2 Ashrat by his above objectionable

conduct had restrained accused no.1 Hanif from

disclosing true facts before the court.

163 Confession of accused no.1 receive

corroboration in all material particulars from the

confessional statements of accused nos.3 Fehmida and

accused No.2 Ashrat pertaining to the offences

registered at four police stations. PW-88 who has

recorded confession of accused no.1 maintained

contemporaneous record about recording of the

confession. He has made memorandum below the

confession of accused no.1 Hanif (Ex.P-506A) that

confession was read over and explained to the

accused and he has admitted to have recorded as per

his version. It is also certified by PW-88 DCP Shri

Vinod Lokhande that he was convinced that accused


no.1 made the confession voluntarily. PW-88 has

complied with all the procedural safeguards given in

sub-section (2) to (5) of section 32 of POTA 2002.

Incriminating facts appearing in the confession of

accused no.1 about Gateway of India blast are

supported by the testimony of independent witness

PW-15 Shri Shivnarayan Pandey. I therefore find that

confession of accused no.1 is voluntary and

truthful.

164 It is argued by Adv.Wahab Khan Ld.Counsel

appearing for accused no.1 that after recording the

confession, accused no.1 was produced before CMM on

26.9.2003 and statement of the accused was recorded

by CMM, who had made a note to the effect that

substantial part of the confession was disputed by

the accused. According to Adv.Wahab Khan, such type

of confession looses its sanctity and therefore it

cannot be considered by the court. I have gone

through the confidential letter Ex.P.506/B sent by


CMM to the Special Court on 26.9.2003. It is not

mentioned by CMM in the said letter that substantial

part of the confession was disputed by the accused.

From the statement of the accused Ex.P-623 recorded

by CMM and from the letter of CMM Ex.P.506-B

addressed to the Spl.Court dtd.26.9.2003 it is found

that all the incriminating facts constituting the

offences registered at MIDC Police Station,

Ghatkopar Police Station, Colaba Police Station and

L.T.Marg Police Station have been admitted by

accused no.1 Hanif. Therefore it cannot be said that

the accused has disputed the substantial part of his

confession. On the contrary, he has admitted all the

facts constituting the offences alleged to have

committed by him.

165 Adv.Wahab Khan invited the attention of the

court to the cross-examination of PW-88 who has

stated that he misunderstood the questions of the

cross-examining counsel and whatever answers were


given by him about the timings were in respect of

accused no.2 and not in respect of accused no.1.

According to Adv.Wahab Khan, PW-88 has made

statement to the above effect after getting

prompting from Spl.P.P. and therefore evidence of

PW-88 inspires no confidence. Ld.Spl.P.P. Mr.Nikam

submitted that questions put to PW-88 in his cross-

examination by Advocate Wahab Khan were

misunderstood by the witness who has recorded

confessions of accused nos. 1 and 2 and therefore he

gave answers about the timings pertaining to accused

no.2. PW-88 realized his mistake and got it

corrected without any hint by Spl.P.P., therefore

this cannot be the circumstance to disbelieve the

evidence of PW-88. Fact remains that PW-88 has

recorded confession of both the accused persons i.e

accused no.1 Hanif and accused no.2 Ashrat.

Therefore he might have confused in timings

regarding the production of the accused persons

before him. He has rectified his mistake by giving


clarification. Clarification of the witness is

convincing. I am therefore not inclined to accept

the above point urged by Adv.Wahab Khan.

166 It is argued by Adv.Wahab Khan that PW-88

did not ask the accused while recording his

confession that the confession made by him will be

considered under the charges of POTA, 2002 and the

same will be admissible under the provisions of POTA

and he was authorised to record the confession of

accused under section 32 of POTA, 2002. The above

important questions were not put by PW-88 to accused

no.1 Hanif and therefore confession of accused no.1

cannot be said to have been recorded properly. There

is no substance in the above submission because

questions to the above effect do not find place in

any of the sub-sections of section 32 of POTA 2002

and it is already observed by this court the

procedural safeguards given in section 32 of POTA

2002, have been complied with. Therefore, not


putting the above questions to the confessor by

recording officer cannot be the ground to vitiate

the confession.

167 Next point stressed by Ld.defence counsel

Adv. Wahab Khan is that there was nothing to

obstruct the IO for getting the confession of the

accused recorded by Ld. Judicial Magistrate as per

section 164 of Cr.P.C. and there is no bar under the

POTA,2002 for the same. The above submission is not

sustainable because Section 32 of POTA 2002 is the

self contained code of recording the confession of

the accused, Procedural safeguards to be followed by

the recording officer are given in sub-section (2)

to (5) of section 32 , therefore there is no

propriety to avail general mode of recording

confession of the accused under Cr.P.C.

Investigating officer has opted the course provided

in POTA 2002, therefore, the above objection

carries no weight.


168 Part-I and Part-II of the confession of

accused no.1 Hanif disclose that it was explained

to accused Hanif by DCP Shri Lokhande that he was

not bound to make any confession and that if he did

so, it may be used as evidence against him.

Confession of the accused was recorded in the

language known to him i.e in Hindi language and it

was recorded in an atmosphere free from threat.

After recording the confession, accused was produced

within 24 hours before Chief Metropolitan

Magistrate, who recorded his statement which is

placed on record at Ex.P-623. Accused Hanif in his

statement made no grievance against police. On the

contrary he spoke that his statement was not

obtained by use of force, threat or any inducement.

Statement of the accused recorded by CMM on

25.9.2003 which is at Ex.P-623 is signed by accused

and counter signed by CMM. Accused made no

complaint of torture before CMM at the hands of


police. He was remanded to judicial custody on

26.9.2003.

Death of wanted accused i.e. Nasir in an Encounter on 12.9.03.

169 PSI Sachin Kadam (P.W.1) was attached to

Unit-II of DCB CID in the year 2003. It is his

evidence that he and his colleagues i.e.. PSI

Sabnis, PSI Pawar, PSI Uttekar, PSI Wani, and

other staff members were called by Sr.PI. Dilip

Patil and they were apprised that a information was

received that the wanted accused in bomb blast case

i.e. Nasir is to arrive near Ruparel College in

Maruti 800 car which was containing explosives and

firearms. On the basis of the above information a

trap was laid to apprehend wanted accused Nasir. PI

Ahir, PSI Pawar and PSI Sabnis had worn bullet proof

jackets, ACP Shri Kamble divided police personnel in

two groups.


170 It is stated by PW-1 Sachin Kadam that he

and his colleagues alongwith the informant reached

on the spot at 20.50 hours. At about 21.50 hours on

12.9.2003 one Maruti 800 car of blue colour stopped

near footpath opposite Rubi Mill. Informant pointed

to the driver of the said vehicle saying that it was

Nasir. Nasir and other person got down from the

vehicle and they started talking with each other

and at the same time PI Patil directed police

officers to apprehend Nasir. Nasir and the person

accompanied him had taken out their revolvers tucked

at their waist and they started firing towards

policemen. It is the evidence of P.W.1 Sachin Kadam

that since there was danger to his life and the life

of his colleagues, they tried to avoid the bullets

fired towards them and in order defend themselves

his colleagues started firing towards the two

persons. In the said firing both the persons became

injured. PSI Sabnis thereafter contacted mobile van


of Shivaji Park Police Station and after arrival of

the mobile van, injured were taken to KEM Hospital

where they were declared dead by the doctors.

According to PSI Sachin Kadam, he identified the

dead body of Nasir but he was unable to identify the

other dead person. After inquiry the name of

other person was found to be Hasan Habib, who was

the associate of Nasir.

171. Inquest panchanama of the dead body of Nasir

was prepared. From his pant pocket, one leather

purse was found which contained following articles

i.e. cash of Rs.1182/-, credit card of ICICI bank

and other credit card of city bank (Pakistan) in the

name of Atik-Ur-Rehman, two driving licences having

photographs of Nasir, three withdrawal receipts from

ICICI bank, three passport size colour photographs

of deceased Nasir, one SIM card of Airtel company,

one diary in which some of the names were

mentioned, one mobile handset of Nokia of model 3310


having Airtel SIM card and one donation receipt of

Rs.1200/-. All the articles were seized vide

panchnama Exh.-P-254 in connection with CR No. 225

of 2003 registered at Shivaji Park

Police Station.

172 Two credit cards were found contained in the

wallet which was kept in the pant pocket of deceased

Nasir. One of the credit cards was issued by CITY

Bank, Pakistan, bearing no. 5081 1751 3642 1014

which was valid up to 06/2003 and it was in the name

of Atique-ur-Rehman and other credit card was issued

by ICICI Bank, Hyderabad, bearing no. 4731 9662 3917

1259 in the name of Ahmed Sayed Ali Aydee which was

valid up to 02/06. Both these credit cards are at

Article 70-a and 70-b respectively. It is suggested

to this witness in the cross-examination that no

such incident did take place on the spot and he has

lodged false FIR to that effect at Shivaji Park

Police Station at the instance of his superiors.


This suggestion is denied by the witness. Nothing

has come in the cross-examination of this witness so

as to doubt his testimony.

Evidence of Approver P.W.2 Jahid Patne

173 PW 2 Jahid Patne was arraigned as accused

no.4 in the chargesheet. At the instance of the IO

and Special P.P. Mr. Nikam, pardon is tendered to

him as per section 307 of Cr.P.C. and he is then

examined as PW-2. It is seen from the

deposition of PW2 that accused no.2 Ashrat was

studying alongwith him in Marol Urdu High School at

Mumbai. PW-2 has identified accused no.2 Ashrat in

court saying that he was his school mate in Marol

Urdu High School. Nasir was also known to Jahid. In

this respect Jahid spoke that Nasir is resident of

Hyderabad and his school name was Abdul Rehman Ali

Aydee. He was also known as Sayed Ali Aydee, Atique-

ur-Rehman and Ahmed Sayyed Ali Aydee. According to

http://P.w.2/


PW-2 Jahid, he was in Dubai when Nasir reportedly

died in the encounter on 12/09/2003. It is the

evidence of PW-2 that he and Nasir were residing in

Dubai and Nasir had shown him credit card of city

bank, Pakistan and it was in the name of Atique-ur-

Rehman. Article-70/a is the same credit card

which is identified by PW-2 Jahid. P.w.2 was told

by Nasir that he had been to Pakistan to undergo

arms training and training for preparation of bombs.

174 It is testified by PW-2 that when he had

been to Mumbai from Dubai in the month of May 2003

at that time he was shown credit card of ICIC bank,

Hyderabad by Nasir and it was in the name of Ahmed

Sayyed Ali Aydee. Article-70-b is the same card

which is identified by PW-2 Jahid and it is bearing

no.4731 9662 3917 1259. Both these credit cards

Art-70(a) and Art-70(b) came to be seized on

12.9.2003 from the pant pocket of deceased Nasir.

PW-2 Jahid further spoke that Nasir was having two


driving licences (Article-71colly.) one in the name

of Abdul Rehman Ali Aydee and second in the name of

Sayyed Ali Aydee and both the driving licences were

having photographs of Nasir.

175 It is revealed from the evidence of P.W.2

Jahid that he had gone to Dubai in June-1999 to work

as labourer in Alimco Trading Establishment. He

worked there for 4½ years and left Dubai on

01.10.2003. He used to communicate from Dubai with

Nasir at Mumbai on his cell no. 9892451164 and

9892077831. P.W.2 Jahid was having his cell no.

5451488 at Dubai. According to him, the STD code of

Dubai was 0097150. There is difference of about 1½

hours between Dubai timing and India timing. India

timing is ahead by 1½ hour. It is his evidence that

Nasir became known to him since August 2000. He also

came in contact with accused no.1 Hanif and wanted

accused persons i.e Bilal, Samiulla, Rehman, Aabid

and Naeem. P.W.2 Jahid has identified accused no.1

http://P.w.2/

http://P.w.2/

http://P.w.2/


in the Court sitting in the dock. He has also

identified accused no.3 Fahmida who is wife of

accused no.1. The reason of his identifying accused

no.3 Fahmida is that when he had been to India in

April 2002 from Dubai, he was asked by accused no.1

Hanif to hand over chocolate parcel to his wife

Fahmida and address of his house was given as Marol,

Chimat pada, Mumbai. He had accordingly delivered

chocolate parcel to Fahmida which was sent by her

husband from Dubai.

176 P.W.2 deposed that when he was working at

Dubai, he came in contact with Pak nationals namely

Bilal, Samiulla, Rehman, Aabid and Naeem. All these

persons used to meet him in Masjid for attending

speeches which were followed by Namaj prayer.

According to P.W.2, the persons who used to come in

Masjid were addressed speeches regarding the

atrocities committed on Muslims in India and members

of the audience were instigated to take revenge of

http://P.w.2/

http://P.w.2/


such atrocities.

177 It is testified by P.W.2 that he joined

Lashker-E-Taiba in the year 2000 as he wanted to

take revenge of atrocities on Muslims. Lashker-E-

Taiba is a Pakistani based terrorist organization

established with a view to spread terrorism. It is

stated by P.W.2 that the Maulanas in Pakistan, used

to address audience in Masjid and C.D.s of such

address were played by Samiulla and Bilal in Dubai.

After his becoming member of Laskher-E-Taiba he and

his colleagues said as to what they were doing in

Dubai and they should go to India for doing

something to spread Terror of Muslim religion and

the terror was to be spread by causing bomb blast

incidents. As a result of this motivation, accused

no.1 Hanif and Nasir underwent training for causing

bomb blasts. Nasir himself told to P.W.2 Jahid that

such training was given to him by Commanders of

Laskher-E-Taiba and it consisted preparation of

http://P.w.2/

http://P.w.2/


bombs and handling of firearms.

178 It is seen from the evidence of P.W.2 Jahid

that he had been to India on four occasions from the

year 1999 till 01.10.2003. According to him, in the

month of August 2002 he himself, Nasir, accused no.1

Hanif, Samiulla, Bilal, Rehman, Aabid had gathered

in the house of accused Nasir in Dubai where they

held conspiracy meeting to cause bomb blasts in

Mumbai. His evidence shows that the above plan was

executed by Nasir, Hanif (accused no.1) Ashraf

(accused no.2) and Fahmida (accused no.3).

179 It is the evidence of P.W.2 Jahid that as

per the conspiracy, the first bomb blast was to be

caused at SEEPZ bus Depot in Andheri on 02.12.2002

but the bomb planted in the bus was not exploded and

this was informed to him by accused no.1 Hanif.

Second bomb explosion was to be caused in Ghatkopar

in BEST bus on 28.07.2003 and as per the plan third

http://P.w.2/

http://P.w.2/


and fourth bomb blast incidents were to take place

on one and the same day i.e. on 25.08.2003 at Zaveri

Bazar and Gateway of India. The above plan was

informed to P.W.2 Jahid by Nasir from time to time.

The evidence of P.W.2 discloses that his associates

Aabid and others promised that they would provide

gelatine sticks, timer and RDX for causing the bomb

blasts in Mumbai. Pursuant to the above criminal

conspiracy, Hanif and Nasir decided to go to Mumbai

from Dubai for causing such terrorist acts. It has

come in his evidence that he was informed by Hanif

that the plan of causing bomb blast at SEEPZ bus

Depot had failed and thereafter he told Hanif to

carry the work further. According to this witness,

he wanted to convey Hanif to cause big bomb blasts

in Mumbai.

180 PW-2 had been to Mumbai in the month of May

2003 to attend the marriage of his brother. It was

accused no.2 Ashraf who had come to receive P.W.2

http://P.w.2/

http://P.w.2/

http://P.w.2/


Jahid at Sahar Airport. During that visit, P.W.2 had

occasion to see Hanif, Nasir and his other

associates. When he returned to Dubai in the month

of July 2003, his associates told him that the

incident like unexploded bomb and small blasts are

disappointing and there should be big bomb blasts in

Mumbai for which they assured to supply RDX. Such

displeasure was expressed to P.W.2 Jahid by his

associates namely Samiulla,Bilal,Rehman, Aabid and

Naeem and all these persons were the members of

Laskher-E-Taiba.

181 P.W.2 Jahid further spoke that Nasir made

him phone call twice at Dubai from Mumbai at about

9.15 a.m. He received another telephone call from

Nasir in the evening at about 5.30p.m on 24.08.2003.

Nasir informed P.W.2 through his cell no. 9892451164

that, the work was going on in Mumbai according to

the plan. The approximate Indian timing of his

receiving the above calls are 10.45am and 7.00pm. On

http://P.w.2/

http://P.w.2/

http://P.w.2/

http://P.w.2/


25.08.2003 it was informed to P.W.2 Jahid by Nasir

that, Hanif and his family members and accused no.2

Ashraf had proceeded on two different spots in

Mumbai for causing bomb blasts and P.W.2 was asked

to watch TV news on the night of that day. P.W.2

also informed his associates on phone to watch TV

and they all together made call to Nasir on his cell

no.9892451164 at 4.30pm (Indian time 6.05pm). After

seeing the news items of bomb blasts in TV, P.W.2

Jahid and his colleagues congratulated Nasir and

asked him to thank Ashraf (accd.no.2) and Hanif

(accused no.1)

182 From the evidence of PW-2 Jahid it is

revealed that he returned to India from Dubai on

1.10.2003. After visiting his house he came to

know that The officers of Crime Branch, Bandra had

been to his house for making his inquiry.

Immediately on the same day at about 1.00 pm he

alongwith his elder brother went to Bandra Crime

Branch where chief IO Shri Walishetty made inquiry

http://on1.10.2003/

http://on1.10.2003/

http://on1.10.2003/

http://on1.10.2003/

http://on1.10.2003/

http://on1.10.2003/

http://P.w.2/

http://P.w.2/

http://P.w.2/

http://accd.no.2/

http://P.w.2/


of him for two hours and thereafter he was permitted

to go to his house. He was again called on the next

day for inquiry purposes and after completing the

inquiry, he was arrested on 02.10.2003 in connection

with C.R.No.235 of 2003 registered at Ghatkopar

Police Station. It is seen from his evidence that

during the course of custodial interrogation he

agreed to narrate all the facts pertaining to bomb

blasts before the superior Police officers. He was

thereafter produced before DCP Shri Dhananjay

Kamlakar (P.W.12) for recording his confession.

183 P.W.12 in this respect deposed that he

received letter from Jt.C.P.,Crime dtd.17.10.2003 to

record the confession of accused Jahid Yusuf Patane.

On 21.10.2003 he directed IO to produce accused

Jahid before him on above day at 12.30hrs and

accordingly accused Jahid was produced before him on

the above day and time by API Phadke of Crime

Branch. P.W.12 DCP Dhananjay Kamlakar took the


accused in his chamber and asked escorting party to

leave his chamber. After asking some preliminary

questions to accused Jahid, Part-I of his confession

(Ex.P-264) was recorded by following the procedure.

Accused was thereafter given more than 24 hours time

for reflection. He was again produced before DCP on

23.10.2003. It is seen from the evidence of P.W.12

that he followed the due procedure given in Sec.32

of POTA, 2002 while recording Part-II of the

confession (Ex.P-264/A) of accused Jahid(PW-2).

184 Accused Jahid Yusuf Patani was earlier

arraigned as accused no.4. He was arrested on

01.10.2003 and his confession was recorded on

23.10.2003 by DCP P.W.12 Dhananjay Kamlakar. After

filing the chargesheet, he was granted pardon by the

Court u/s.307 Cr.P.C. on the application of IO and

Special P.P. and thereafter he is examined as

approver as P.W.2. For the above reasons, the

confession of PW-2 Jahid will now be treated as his


previous statement which can be made use of to

corroborate his testimony under section 157 of

Cr.P.C. It is made clear from the evidence of P.W.2

Jahid that all the facts narrated by him in his

evidence find place in his confession dtd.23.10.2003

which is at Exh.P-264/A.

185 Adv. Wahab Khan, Ld. Counsel appearing for

accused no.1 submitted that conduct of IO (P.W.103)

in allowing the approver to visit his house on

01.10.2003 raises reasonable suspicion about the

bonafides of IO. When it is the prosecution case

that P.W.2 Jahid was party to the conspiracy of

hatching bomb blasts in Mumbai, then how he was

allowed to go to his home by IO on 01.10.2003. Adv.

Kunjuramani, Ld.Counsel appearing for accd.no.2

Ashrat has also expressed surprise in allowing P.W.2

Jahid by IO to visit his home on 01.10.2003

especially when P.W.2 Jahid was shown as wanted

accused in Remand Application Exh.D-82 dtd.


15.09.2003. According to me, the above arguments of

Counsels of accused no.1 and 2 fall short to raise

suspicion about the conduct of IO because P.W.2

Jahid returned from Dubai to India early in the

morning of 01.10.2003 and after reaching home he

came to know from his family members that Police had

been to his house for making inquiry in bomb blast

case. He thereafter on the same day at about 1 pm

alongwith his elder brother visited the office of

Crime branch, Bandra and his inquiry was made for

two hours by Chief IO Shri Walishetty. It is the

evidence of IO that, the approach of P.W.2 Jahid was

cooperative and he agreed to narrate everything in

connection with the series of bomb blasts in Mumbai

and the inquiry against him was going on, therefore

he was allowed to go to his home on same day. As per

the direction, PW-2 Jahid came to the office of

Crime Branch, Bandra on 2.10.2003 and after

completing the inquiry, it was found that he was

party to the criminal conspiracy of series of bomb


blasts in Mumbai and thereafter he was arrested on

2.10.2003. The above justification given by IO of

arresting PW-2 on 2.10.2003 instead of 1.10.2003 is

convincing.

186 It is pointed out by Adv. Wahab Khan, Adv.

Kunjuraman and Adv. Pasbola, Ld.Counsels appearing

for accused no.1 to 3 that P.W.2 Jahid never visited

Dubai and he did not take part in the conspiracy of

hatching bomb blasts in Mumbai. Prosecution

therefore could not produce the Passport of P.W.2

Jahid to show that he had been in Dubai at the time

of the bomb blasts incident and he returned to India

on 01.10.2003. According to SPP Mr.Nikam, there is

no substance in above argument as P.W.2 Jahid

produced certain documents i.e. Disembarkation card

(Exh.P-267) and work contract executed by P.W.2

Jahid in favour of Alimco Trading Establishment at

Saudi Arabia dtd.30.07.2002 which is at

Exh.P-270(colly) to show that he was working in


above Company till he returned to India on

01.10.2003. Disembarkation card bearing no. 124548

which is at Exh.P-267 bears the seal of Immigration

office of Mumbai dtd.01.10.2003. This document

supports the evidence of P.W.2 that he returned to

India from Dubai on the above day. Agreement

Exh.P-270 (colly) discloses that it was executed on

30.07.2002 and the duration of the agreement was

from 24.06.2002 to 23.06.2005. The agreement bears

contract no.A0F3158BG490A and card no. 24731/1. It

is submitted by Special PP Mr.Nikam that P.W.2 Jahid

has left his job without bothering the legal

consequences of breach of the contract. He came to

India on 01.10.2003 as he was repenting for his

involvement in bomb blast incidents and above

conduct of the P.W.2 shows that his repentance to

crime is genuine and bonafide. Since the above

submission of Ld.Spl.P.P. is based upon documents

Ex.P-267 and Ex.P-270, therefore it is accepted.


187 It is argued by Defence Counsels that

Passport is the only legal document to show that a

person travelled abroad and returned India. P.W.2

Jahid has stated in cross-examination that passport

issued by Regional Passport Authority having the

photograph of the passport holder is the document

which permits the Indian Citizen to travel abroad

and to come back to India. The visa is imposed upon

the passport itself. When such passport of PW-2 is

not on record therefore it is submitted that the

claim of the PW-2 that he was working in Dubai at

the time of bomb blast incidents occurred in the

year 2003 and came back to India on 1.10.2003 cannot

be relied upon.

188 In reply to the above argument Spl. PP.

Mr.Nikam has invited attention of the court to the

cross-examination of PW-2 Jahid (PW 2/94). PW-2 has

stated in his cross-examination that after coming

back to India on 1.10.2003 from Dubai he handed his


passport to his father on the same day. Later on he

demanded passport to his father, but it was not

traceable. He could not get the passport despite the

search in the house. He told to his family members

that he will have to deposit the passport in the

court as soon as it is traced/searched. Above

evidence of PW-2 shows that he had handed over

passport to his father and subsequently the passport

went missing and inspite of the search it was not

traced. There is no ground to disbelieve the above

version of PW-2. I therefore hold that non-

production of passport by PW-2 is not sufficient to

accept the contention of the defence Counsels that

PW-2 Jahid had never gone Abroad i.e at Dubai and

therefore there was no question of his returning

back to India on 1.10.2003 as the version of PW-2 of

visiting Abroad and coming back to India is

supported by documents Ex.P-267 and Ex.P-270

(Colly). One more important aspect in this respect

which deserves to be mentioned is that the fact of


PW-2 doing job in Dubai in the year 2003 has been

admitted by accused nos.1,2 and 3 in their

confessional statements Ex.P-506A, Ex.P-501A and

Ex.P-522A respectively.

189. It is submitted by Adv.Pasbola that the

evidence of PW-2 Jahid that he came to India to

repent cannot be accepted in as much as the moment

he was given opportunity to become approver and get

pardon, he jumped to it and did not refuse the same.

Same point is also stressed by Adv.Kunjuraman.

According to him, the evidence of PW-2 that he

watched T.V. Clips of bomb blasts and thereafter he

went to Masjid and disclosed to Maulana Jafar Sahab

that he was repenting for his participation in

criminal conspiracy of causing bomb blasts in

Mumbai is not reliable because soon after watching

of the news it is PW-2 Jahid who congratulated Nasir

by making telephone call on his cell in India and

also asked him to give thank to accused no.1 Hanif


and accused no.2 Ashrat for their participation in

the bomb blasts. It is true that initially PW-2

congratulated accused nos.1 and 2 and Nasir for

their doing terrorist acts in Mumbai as per the

conspiracy, but when he frequently saw T.V. clips of

the bomb blasts and observed that several persons

i.e male and female of both the castes lost their

lives and became injured, he became perturbed and

went to Masjid to see Maulana. Maulana spoke him

that innocent persons including women, children and

aged persons of both the religion are killed in such

incidents and bomb blast do not discriminate between

Hindus and Muslims and therefore, it is against

their religion. Thereafter he started repenting for

the crime committed by him. PW-2 has stated in his

cross-examination that he had discussed with his

family members that he was repenting for the crime

committed by him. He had also told to the court that

� jo mere se gunah hua hai uska mai prayaschitta

karna chahata hu.� He then expressed his


willingness to IO that he wanted to confess the

crime committed by him and thereafter his confession

came to be recorded by PW-12 DCP Dhananjay Kamlakar

on 23.10.2003. In reply to the question asked in

his cross-examination by Adv.Pasbola it is stated by

PW-2 that even today he is ready to suffer

punishment which may be imposed upon him for his

participation in hatching of the conspiracy of

causing terrorist acts in Mumbai. His cross-

examination shows that he did not feel it necessary

to engage advocate during remand proceeding because

he did not want to escape from the criminal

liability.

190 Adv. Kunjuraman pointed out that PW-2 Jahid

claims to have returned to Mumbai to undergo

punishment for his crime but, after coming to Mumbai

instead of confessing his guilt before court he

became approver and got himself escaped from the

criminal liability. It is thus submitted by


Adv.Kunjuraman that PW-2 Jahid sent letter through

jail to Commissioner of Police, Mumbai on 20.2.2004

for begging the pardon and immediately thereafter IO

made application of making him approver. It is

therefore submitted that the so called repentance of

PW-2 Jahid is not bonafide and IO has used this

opportunity to misuse section 307 of Cr.P.C. to

implicate the innocent accused persons in this case.

191 I have gone through the application

(Ex.P-3(colly)) of PW-2 dtd. 20.2.2004 addressed to

Commissioner of Police, Mumbai through jail.

Accused has admitted his involvement in all the four

offences of bomb blasts occurred at SEEPZ,

Ghatkopar, Zaveri Bazar and Gateway of India. He

has expressed repentance for the sin committed by

him in connection with the bomb blast being member

of Lashkar-E-Taiba. He therefore became ready to

disclose everything pertaining to the criminal

conspiracy hatched by him and his associates in


Dubai in the matter of doing terrorist acts in

Mumbai. PW-2 Jahid has not prayed for pardon in the

above letter. It is stated by PW-2 Jahid that he

never requested either IO or the court that he may

be granted pardon on condition of his disclosing

everything pertaining to hatching of conspiracy of

bomb blasts and execution of the same. There is

nothing on record to show that PW-2 has made efforts

to persuade the IO and PP to become approver so as

to avoid the punishment. Even though it is accepted

for the sake of argument that PW-2 avoided to

undergo the punishment by accepting tender of

pardon. I find no fault with PW-2 as it is IO and

Spl.P.P. who made him approver and the above

proposal of the prosecution has been endorsed by the

court as per section 307 of Cr.P.C. Thus acceptance

of a legal remedy which was made available to PW-2

by the prosecution cannot be a ground to doubt his

repentance.


192 The next point urged by Adv. Kunjuraman is

that PW-2 Jahid made no complaint of his Pakistani

associates to Dubai police but, he gave evidence

against his Indian associates. This shows that

prosecution has played a foul game by making him

approver to falsely implicate the innocent accused

persons. There is no force in the above submission

as PW-2 has made it clear in his cross-examination

that he had gone to surrender before Dubai police,

but his request of surrender was turned down by

Dubai Police saying that the crime was committed in

India.

193 Adv. Kunjuraman has also submitted that

PW-2 being approver has not disclosed material

information pertaining to the hatching of the

conspiracy and execution of the same of doing

terrorist acts in Mumbai. Investigating agency or

the prosecution has forced him to adopt the

prosecution story only with a view to implicate the


accused persons in the case. This argument is not

sustainable in law as Special P.P. has already

certified that PW-2 Jahid has complied with the

conditions on which the tender of pardon was made to

him.

194. Scrutiny of the evidence of PW-2 Jahid make

me to believe that he was party to the conspiracy of

doing terrorist acts in Mumbai which was hatched in

the house of Nasir in Dubai in the month of

August-2002. Accused No.1 Hanif was also present in

the above conspiracy meeting. Confessional

statements of accused nos. 1 to 3 corroborate the

evidence given by PW-2 Jahid. He has no ground to

give false evidence against the accused persons as

he has no inimical terms with them. Evidence of PW-2

has not been dislodged in his cross-examination.

PW-2 Jahid was reported from time to time by accused

no.1 Hanif and Nasir about the developments which

was being occurred in Mumbai regarding the


completion of their mission of doing bomb blasts in

Mumbai. I therefore find that PW-2 Jahid was party

to the conspiracy of hatching terrorist acts by

doing bomb blast in crowded places at Mumbai. He has

disclosed everything known to him which is made

clear from the certificate given to him by the

Spl.P.P. His evidence is therefore found reliable

which gets support from the contents of the

confessional statement of accused no.1.

Purchase of Airtel SIM Cards by accused Nasir bearing No.9892451164 and 9892077831:

195. It is the evidence of PSI Pramod Toradmal

(P.W.51) that accused no.1 on 9.9.2003 disclosed him

in presence of panchas that he would show the shop

from where he purchased Airtel prepaid SIM Cards of

mobile and disclosure statement to the above effect

is at Exh.P-274. P.W.3 Rajendra Pawar is the panch


witness of the disclosure statement. This witness

and PW-51 PSI Toradmal have identified their

signatures on the panchnama (Exh.P-274). According

to this witness, he and police persons were taken by

accused no.1 Hanif towards a shop viz: Raj

Electronics which was owned by PW-4 Anil Parmar. It

has come in the evidence of PW-4 Anil that he was

selling prepaid SIM cards of various companies such

as Orange, BPL, Airtel etc. He used to get prepaid

SIM cards of Airtel from the distributor viz: Indu

Commercial Corporation, situated at Plot No.8, Shah

Industrial Estate, Veera Desai Road, Andheri(West),

Mumbai. It is stated by PW-4 Anil Parmar that SIM

card of Airtel bearing No.9892451164 was purchased

by him from Indu Commercial Corporation vide

challan/ invoice No.ICC/BCL-D 23239 dtd 31.7.2003

which is in the name of Raj Electronics, Marol and

the said delivery challan is placed on record at

Exh.P-276. PW-7 Ghanshyam Dubey was working as

salesman in Indu Commercial Corporation and he has


admitted to have signed the challan-cum-invoice

bearing No.Ex.P-275 and Exh.P-276.

196 PW-5 Ashok Satra is the owner of Karishma

Electronics. It is testified by him that he was

selling SIM cards in his shop viz: Karishma

Electronics which is situated at Marol, Andheri

(East), Mumbai. He deposed that on 9.9.2003 at about

11.00 hours 4-5 persons had been to his shop and one

of them was in veil and other one was police

officer. The police officer gave him mobile no.

9892077831 and the witness was asked to verify his

record and to say whether the SIM card of above

number was sold by him. PW-5 Ashok verified the

record and it was found that the above SIM card was

purchased by him from Indu Commercial Corporation.

It is further stated by this witness that two

persons had been to his shop to purchase the SIM

card and after obtaining copy of the driving licence

and getting filled in enrollment form, the SIM card


of above number was sold by him. He has identified

accused no.1 saying that the same person had been to

his shop for purchasing the SIM card.

197 It is mentioned in the disclosure statement

Exh.P-274 that accused no.1 Hanif on 9.9.2003

informed PSI Toradmal that he alongwith his

associate Nasir purchased Airtel prepaid SIM cards

bearing Nos.9892451164 and 9892077831 from two shops

and those shops were Raj Electronics and Karishma

Electronics. At the instance of accused no.1, PW-4

Anil Parmar who is the owner of Raj Electronics

produced delivery challan of Indu Commercial

Corporation Exh.P-276 which mentions that SIM card

No.9892451164 and other SIM cards were purchased by

him from Indu Commercial Corporation and the same

was sold by him to one person viz: Habib Omar.

Exh.P-280 is an Enrollment form of Airtel Magic

Prepaid mobile card pertaining to mobile no.

9892451164 and it was purchased by a person viz:


Habib Omar, resident of Shalibanda, Hyderabad. Habib

Omar appears to have signed the enrollment form at

two places. Accused no.1 Hanif in his defence

evidence (Exh.D-102) has admitted that he was taken

by police to some mobile shops in order to verify

the purchase of the mobile SIM cards.

198 Accused no.1 in his confession Exh.P-506-A

has admitted that he alongwith Nasir in the month of

July 2003 had been to a mobile shop at Marol to

Purchase Airtel prepaid card. Nasir while filling

the prescribed form mentioned his name as � Habib

Omar� and he was given SIM card No.9892077831. In

the same confession accused no.1 Hanif spoke that on

22.8.2003 he and Nasir purchased Airtel prepaid card

from a mobile shop at Marol and Nasir purchased the

card in the name of � Habib Omar� and the SIM number

of the card purchased by Nasir was 98902451164. In

this respect it is further stated by accused no.1

Hanif that the above SIM card bearing no.9892451164


was given to him by Nasir for his use saying that

now he should contact him on the above cell and

discontinue his old SIM card. PW-2 Jahid (original

accused no.4 who after tendering pardon is examined

as approver) deposed that while he was in Dubai he

was using cell No.5451488 and Nasir used to contact

him on mobile. Nasir was having two cell numbers

i.e. 9892451164 and 9892077831. From the above oral

and documentary evidence it is established that the

prepaid SIM cards of Airtel bearing No.9892451164

and 9892077831 were purchased by Nasir in the name

of � Omar Habib� .

Evidence of P.W.15 Shivnarayan Pandey - A Taxi Driver who is alleged to have carried accused nos.1 and 3 in his taxi from Andheri to Scene of offence i.e. Pay and Park lot, Opp. Hotel Taj, Gateway of India on 24.8.2003 and 25.8.2003.

199 PW-15 Shivnarayan Pandey is the most

important witness of the prosecution. He is the


owner and driver of the motor taxi bearing No.MH-02-

R-2007. He gave detail evidence with all necessary

particulars in respect of explosion of bomb in his

taxi at about 1.00 p.m. on 25.8.2003 which was

parked at pay and park lot Opp. Hotel Taj at Gateway

of India. His evidence runs into 200 typed pages,

gist of which is as under:

200 It is the evidence of PW-15 Shivnarayan

Pandey that he is driving taxi in Mumbai since the

year 1982. He is having R.C.Book, insurance, permit

and fitness certificate of the taxi and all these

documents are produced on record at Art-1 colly. He

drives the taxi for carrying passengers on hire at

day time and on night time the taxi is hired by his

friend Rammani Mishra.

201 PW-15 is residing at Kandivali and he used

to park his taxi below Andheri Bridge. He used to

come daily in a local train from Kandivali to


Andheri from where he is plying the taxi on hire.

On 24.8.2003 at about 10.30 a.m., he had parked his

taxi at Andheri Opp. Ambar Oscar Cinema Hall. One

person approached and asked him that he wanted to

hire his taxi for whole day to see tourist places in

Mumbai i.e Hajiali, Hanging Garden, Aquarium,

Gateway of India and Rani Baug. PW-15 quoted fare

of Rs.700/- for the whole day and after bargaining

fare was fixed to Rs.600/-. The said person sat in

the taxi on the front side beside the driver and

asked him to take the taxi to the end of Azad Galli

where one bearded person alongwith two women and one

small girl aged about 4 years got into the taxi at

rear side. The description of the person who took

seat beside the driver is given by PW-15 as a person

aged about 25 to 30 years having height of 5.9''

with whitish complex of medium built.

202 It has come in the evidence of PW-1 PSI

Sachin Kadam that wanted accused Nasir was killed in


the encounter near Ruparel College, Matunga on

12.9.2003 and one wallet from his pant pocket

containing some articles including two driving

licences were seized under panchanam Ex-P-254. One

of the driving licences was in the name of Mr.Abdul

Rehman Ali Aydee s/o Ayesha Sayyed Ali and second

driving licence was in the name of Sayeed Abdul

Rehman. PW-2 Jahid was knowing Nasir who was doing

job in Dubai. According to PW-2 Jahid Nasir was

resident of Hyderabad and he underwent arms training

and training of preparation of bombs in Pakistan and

he was having 4-5 names i.e Abdul Rehman Ali Aydee,

Sayyed Ali Aydee, Atique ur Rehman and Ahmed Sayyed

Ali Aydee. Both the above driving licences which

are part of Art-71 (Colly.) and one election card

Art-72 in the name of Abdul Rehman bearing No.KGY

2919066 were shown to PW-15 Shivnarayan Pandey and

after observing photographs in the above articles it

is stated by PW-15 that the same person had hired

his taxi for Rs.600/- on 24.8.2003. This evidence


of PW-15 lead me to conclude that it was deceased

Nasir who had hired taxi of PW-15 on 24.8.2003.

203 At the instance of Nasir, PW-15 had taken

his taxi towards Azad Galli on 24.8.2003. Pointing

out towards accused nos.1 and 3 in the dock it is

stated by PW-15 Shivnarayan that the same persons

alongwith two girls sat in the rear side of his taxi

at Azad Galli. PW-15 thereafter started taking his

taxi towards Colaba. On the way he was required to

take the taxi at Sidhivinayak Temple, Hajiali,

Chowpaty and Aquarium so as to enable the passengers

to see the above tourist places. Taxi was further

taken towards Regal Circle, Shahid Bhagatsingh Road,

Bhid Bhanjan Temple and to Arthur Bunder Road. Nasir

asked PW-15 whether he could park the taxi in the

compound of Taj Hotel to which he denied. Thereafter

PW-15 was paid Rs.200/- and he was asked to park

the taxi in the � Pay and Park� lot opposite Hotel

Taj. Passengers then left the taxi saying PW-15


that they would come back shortly.

204 Taxi was parked in parking lot in front of

Hotel Taj at about 1.30 p.m. Thereafter 45 minutes

approximately passengers (Nasir, accused no.1 and 3

and their both the daughters) came there and they

left the spot for lunch and came back at 2.15 p.m.

Taxi was thereafter taken out from the parking lot

by making payment of parking charges of Rs.10/- by

PW-15 to PW-16 Kartik Pradhan. It was PW-16 Kartik

Pradhan who issued parking receipt (Ex.P-316) on

behalf of M.C.G.M. Pay and Park Scheme, Taj Circle,

Gateway of India to PW-15 for his having parked taxi

bearing No.2007 on 24.8.2003 in between 10.35 a.m.

to 2.15 p.m. Taxi was thereafter taken towards Azad

Galli via V.T. According to PW-15 he left the

passengers at the corner of Azad Galli, Andheri at

about 3.30 p.m. and the person sitting beside him in

front seat (i.e Nasir) made him payment of Rs.400/-

towards balance fare. Evidence of taxi driver


PW-15 shows that the above passengers (Nasir,

Accused nos.1 & 3 and their two daughters) travelled

in his taxi from 10.30 a.m. to 3.30 p.m. on

24.8.2003. Passenger sitting on the front seat

(Nasir) asked PW-15 to bring his taxi in Azad Galli

at 10.00 a.m on the next day for seeing tourist

places.

205 It is revealed from the evidence of PW-15

Shivnarayan Pandey that on the next day i.e on

25.8.2003 he took taxi in Azad Galli at about 10.00

a.m. where accused no.1 (a person having beard who

was sitting on the rear side in the taxi on the

earlier day )came there alone who asked taxi driver

to take the vehicle inside the compound of the

building where construction was going on.

Thereafter five minutes a lady with two girls and

the above person came there with a gray colour

airbag. He asked PW-15 to open the dickey of the

taxi for keeping the above air bag. The said person


lifted the bag and carefully kept it in the dickey,

but dickey could not be closed properly. PW-15 asked

him to keep the air bag on the top of the taxi in

the carrier, but he told that the bag contained

valuable articles and therefore it was not proper to

keep it on the carrier of the taxi. Stepany, wheel,

spanner and jack as well as gas cylinder were

already kept in the dickey of the taxi and therefore

there was no sufficient place for keeping the

airbag. The person having beard (accused no.1) gave

consent to PW-15 to keep spanner, stepany and jack

inside the taxi so that the airbag can be neatly

kept in the dickey. Dickey of the taxi was locked

after having kept the airbag therein. The person

having beard thereafter left the taxi for making

phone call at about 10.15 a.m. and returned back

within 10 minutes. He occupied the front seat beside

driver (PW-15) and his wife and daughters sat in the

rear side. They asked PW-15 to take the taxi towards

Gateway of India. When taxi was being taken to


Gateway of India a person known to PW-15 viz.

Ramchandra Gupta (PW-20) was seen coming from front

side and he was called by PW-15 Shivnarayan Pandey.

The passenger (accused no.1) sitting in the taxi on

the front seat beside PW-15 told taxi driver not to

waste time by indulging in discussion with PW-20

Ramchandra Gupta and said him to go fast to the

place where the taxi was parked on the earlier day.

He was repeatedly telling PW-15 that his valuable

articles were kept in the gray colour bag and

therefore PW-15 was asked not to leave the taxi.

Taxi was taken to the parking lot in front of Hotel

Taj where attendant (PW-16) of Pay and Parking lot

issued parking receipt at about 12.40 hrs bearing

no.566 (Ex.P-312A - counter foil of the receipt)

which bears date as 25.8.2003 and taxi number as

2007. PW-16 Kartik has stated in his evidence that

sometimes he does not write full registration

number of the vehicle for want of time and

therefore receipt Ex.P-316 and Ex.P-312/A mention


taxi number as 2007. He was asked as to why the

time of departure was not noted in parking receipt

Ex-P-312/A and the witness replied that since there

was blast in the above taxi on 25.8.2003 therefore

there was no question of mentioning time of

departure in receipt Ex.P-312/A.

206 It is deposed by PW-15 that after parking

his taxi at parking lot at about 12.45 hrs he had

been to nearby urinal to attend natures call. Since

he was informed by his customers that their

valuable articles were kept in the gray colour

airbag which was put in the dickey, he was reluctant

to go to urinal. He thereafter paid Rs.10/- to the

attendant of the parking lot and asked him to look

after his taxi and then went to attend call of the

nature in 'Sulabh Shauchalaya'. Distance in between

parking lot and 'sulabh shauchalaya' was near about

150 to 200 feet. When he came out of 'sulabh

shauchalaya' at that time he heard sound of big


explosion as a result of which he felt that his both

the ears turned deaf. He sat down on the ground and

after sometime he went towards parking lot where his

taxi was parked.

207 It is deposed to by PW-15 that he could not

find his taxi on the parking place as there was

smoke all around. His taxi was found lying 30 to 32

feet away from the place where it was parked and it

was completely damaged. Demeanour of the witness is

recorded by the court to the effect that while

making description of his damaged taxi, PW-15

started weeping in the witness box. After sometime

he spoke that he saw some dead bodies around the

taxi and others were fighting for their lives. He

thereafter came to the lane behind Hotel Taj. and

sat at one place for near about 45 minutes by

keeping both the eyes closed. When he found that he

was able to walk, thereafter he approached Colaba

Police Station where he narrated the entire


incident. PW-15 has pointed out towards accused no.1

Hanif and accused no.3 Fehmida in the dock saying

that both the accused persons travelled in his taxi

on both the days and he further said that it was

accused no.1 Hanif who had kept his airbag in the

dickey of the taxi on 25.8.2003. Accused no.3

Fehmida was in veil in the dock. She was asked to

remove her veil and she was later on identified by

PW-15 saying that the same lady travelled in his

taxi on 25.8.2003 and she was wearing salwar-kameez

with punjabi dupatta. PW-15 has thus identified

accused nos. 1 and 3 in the court.

208 PW-15 deposed about test identification

parade which was held in Mumbai Central Prison on

6.10.2003. He claims to have attended TIP in the

above jail on 6.10.2003 at 12.00hrs and identified

accused no.1 out of 14 persons in the row. He is

suggested in the cross-examination that no TIP was

held in Mumbai Central Prison on 6.10.2003 and he


did not identify accused no.1 in the said TIP and

this suggestion is denied by PW-15. Accused No.1

was examined under sec.313 of Cr.P.C. (Ex.P-615) by

the court on the above point and he gave reply to

question no.315 that he was identified by PW-15 at

the instance of police. During cross-examination

taken by Adv.Wahab Khan on the point of TIP it was

said by PW-15 that dummies were looking almost

identical in age and the age was approximately

30-35-40. Out of the dummies 9 to 10 were having

beard. There was only one door to the identification

room and that room had no transparent grill. The

above cross-examination of PW-15 has strengthened

his evidence on the point of TIP.

209 After attending TIP in Mumbai Central Prison

on 6.10.2003, PW-15 was later on summoned to

Byculla District Prison where accused no.3 was

lodged. TIP of accused no.3 was held on the above

day for which 6 ladies were selected as dummies and

http://Cr.P.C/


out of those ladies, accused no.3 was identified by

PW-15. It has come in the cross-examination of the

witness that he identified lady accused by pointing

out the finger. There were in all seven ladies in

the row including the accused and the height of

almost all the ladies was 5'. The witness was

further asked by Ld. defence counsel about the

source of his information about the arrest of the

lady accused i.e. through news paper, T.V. or any

other media and witness replied that he had gone to

his native and in his village there is no T.V., news

paper and he also does not have radio. The cross-

examination of the witness shows that the lady

accused was standing in the row in the parade at

Sr.No.5. PW-15 is suggested by the defence counsel

that neither he attended TIP nor he identified

accused no.3 in the parade and this suggestion is

denied by the witness. In the examination of the

accused u/sec. 313 of Cr.P.C. (Ex.P-617) it is

stated by accused no.3 Fehmida in reply to question


no.316 that she was identified by PW-15 at the

instance of police. There is thus variance in

between the above suggestion given to PW-15 and the

statement of accused no.3 made in her examination

under sec. 313 of Cr.P.C.

210 Shivnarayan Pandey (PW-15) has stated that

he was called to Colaba police station on 3.1.2004

at 4.45 p.m. There was one table in the room and

6-7 photographs of male persons were spread on the

table, out of which he identified the photograph of

the person who sat in his taxi on front side beside

him to come to Colaba from Andheri on 24.8.2003. It

is thus seen from his evidence that Nasir was

identified by PW-15 in the above photo

identification parade. It is already concluded by

this court relying upon the evidence of PW-15 that

the person sitting on the front seat of the taxi

bearing No. MH-02-R-2007 beside the driver from

Andheri to Gateway of India on 24.8.2003 was Nasir.


211 Regarding the bomb blast incident occurred

at Gateway of India at about 1.00 p.m on 25.8.2003

accused persons have tried to make out the case in

the cross examination of PW-15 that the blast

occurred at Pay and Park lot opp. Hotel Taj at

Gateway of India was due to the explosion of the gas

cylinder in the taxi of PW-15 and this suggestion is

obviously denied by taxi driver Shivnarayan Pandey.

This witness is asked question in his cross-

examination that he had fitted sub-standard CNG kit

in his taxi from unauthorised person which resulted

in its explosion at about 1.00 p.m on 25.8.2003 and

this suggestion is denied by PW-15. In this

connection Spl.PP. Mr.Nikam has invited attention of

this court to C.A. Report (Ex.P-540 colly) and the

evidence of PW-94 ACP Shri Suresh Sonar who deposed

that the articles seized from the blast place at

Gateway of India vide panchanama Ex.P-318 consisting

the pieces of cylinder which was fitted in the taxi

bearing No.MH-02-R-2007 were sent to C.A. office for


analysis on 27.8.2003 vide forwarding letter

Ex.P-539 and C.A. Report to the above effect is at

Ex.P-540(colly). It is seen from the C.A. report

Ex.P-540(colly) that the articles i.e metal pieces,

rubber pieces, metalic wires, debris, cloth pieces

etc. were examined in Forensic Science Laboratory,

Vidyanagari, Mumbai and the result of the analysis

is that RDX (Cyclotrimethylene Trinitramine)

alongwith petroleum and Hydrocarbon oil was detected

on the seized articles. It is also opined by

Asst.Chemical Analyzer to Govt. Forensic Science

Laboratory that looking at the site of bomb blast it

is evident that the high explosive was used. Thus

the defence of the accused persons which is put in

the cross-examination of PW-15 that the explosion

was the result of the blast of CNG kit fitted in the

taxi is negatived. Accused persons have failed to

mention the above specific defence in their

examination u/s. 313 of Cr.P.C.

212 Adv. Wahab Khan Ld. counsel appearing for


accused no.1 has submitted that the examination-in-

chief of PW-15 was recoded in piecemeal and it was

not taken at one stroke. This situation is continued

so far as every witness is concerned and it was done

deliberately so as to enable the prosecution to

allow its officers to tutor the witnesses. I have

gone through the evidence of PW-15 Shri Shivnaryan

Pandey which was commenced on 26.10.2005 and on

that day examination-in-chief of the witness was

recorded 15 pages. On the above day the witness was

feeling uncomfortable and he was looking here and

there with the tension and he was found unable to

speak. Considering the above state of health of the

witness, the hearing was adjourned on the next day.

Examination-in-chief of the witness was concluded on

27.10.2005. Since Adv.Wahab Ld. counsel appearing

for accused nos.1 and 4 was absent on the above day

therefore the witness could not be cross-examined by

him. Adv. Kunjuraman appearing for accused no.2 was

absent. Adv. Pasbola appearing for accused nos.3 and


5 made application on above day to summon the

witnesses of Print and Electronic Media and to defer

the evidence of PW-15 till the summoned witnesses

are examined. After hearing the prosecution and the

Ld. defence counsel my Ld. Predecessor passed

exhaustive order rejecting the above application

Ex.D-51 made on behalf of accused nos.3 and 5 and

the cross-examination was actually commenced on

28.10.2005 and it continued on 29.10.2005,

8.11.2005, 9.11.2005 and it was concluded on

10.11.2005. The evidence of PW-15 is running into

200 pages therefore same was bound to record it in

piecemeal. It is seen that except one long

adjournment the evidence of PW-15 was recorded on

day-to-day basis and it is the accused persons who

by their application Ex.D-51 tried to defer

recording of evidence. I therefore find no force

in the above submission of Adv. Wahab Khan.

213. It is further urged by the Ld. defence

Counsel of accused no.1 that PW-15 gave evasive


reply in his cross-examination so far as receipt of

Rs.5 lacs is concerned from Shivsena Party. It is

therefore submitted that this witness is not telling

the truth and on that count his evidence is not

believable. There is no material on record to accept

the above argument. Witness has fairly admitted in

his cross-examination that he received reward of Rs.

5 lacs from Shivsena Party through cheque. Therefore

the witness cannot be blamed that he gave evasive

reply on the above point.

214 It is also urged that PW-15 in whose taxi

allegedly the blast occurred has not lodged any

complaint at Colaba Police station even though he

saw the blast with his naked eyes and no explanation

in this regard is tendered by the prosecution.

According to me the above argument is not

sustainable because PW-15 has clearly stated in

cross-examination that he reached to the police

station at 2.00p.m. soon after the blast and he was


in the police station till 9 to 10.00p.m. His

statement was recorded within two-three hours of the

incident. FIR Ex.P-309 of C.R.No.206 of 2003

registered at Colaba Police station regarding the

bomb blast at Gateway of India shows that the

incident did take place at 13.05 hrs and information

regarding the blast was given to Colaba Police

station by police constable Camillo Reis buckle No.

27423 at 13.10 hrs. Since this information was first

in point of time therefore it was treated as FIR.

After making report of the bomb blast incident by

police constable Camillo Reis, there was no question

of lodging complaint or report by PW-15. Statement

of PW-15 was recorded within 2-3 hours of the

incident by Colaba Police Station. I therefore find

no force in the above submission.

215 It is submitted by Mr. Wahab Khan that the

statement of PW-15 Shivnarayan Pandey was recorded

by PI Shelar (PW-93). He has invited attention of


the Court to section 51 of POTA 2002 and pointed out

that the investigation in POTA case has to be

carried out by the officer of the rank of Deputy

Superintendent of Police or a police officer of an

equivalent rank. Since PI Shelar was not of the

above rank therefore there is non compliance of the

mandatory provisions of law which vitiates the

investigation. In support of this submission he has

pressed into service the observations of the Hon'ble

Apex Court in a case State Inspector of Police,

Vishakhapatanam Versus Suryashankar 2007 ALL MR (3)

555 SC. In the above cited case respondent was in

the service of South Eastern Railway who was later

on promoted as Senior Commercial Inspector and then

Chief Commercial Inspector. He was held guilty by

the Trial Court of having committed offence

punishable under section 13(2) of Prevention of

Corruption Act, 1988. Appeal preferred by him was

allowed by the High Court of Judicature of Andhra

Pradesh at Hyderabad and the matter was carried to


Hon'ble Apex Court by the State Government by filing

criminal appeal bearing no.1335 of 2004 which stood

dismissed on 24.8.2006. Points involved in the

appeal were twofold. First one was whether

investigation carried out by PW-41 was legal or not

and the other point was about the validity of the

sanction accorded by PW-37. Second proviso of

Section 17 of the Prevention of Corruption Act,

1988 provides that an offence referred to in clause

(e) of sub-section (1) of section 13, shall not be

investigated without the order of a police officer

not below the rank of Superintendent of Police. It

was admitted by PW-41 in his evidence that he had

not filed authorisation letter from S.P. CBI for

registering the case and carrying out the

investigation. The Hon'ble Apex Court observed in

Para 16 of the judgment as under:

� The approach of the learned Special Judge,

to say the least, was not correct. When a

functionary passes an order, that too


authorising a person to carry out a public

function like investigation into an

offence, an order in writing was required

to be passed. A statutory functionary must

act in a manner laid down in the statute.

Issuance of an oral direction is not

contemplated under the Act. Such a concept is

unknown in administrative law. The statutory

functionaries are enjoined with a duty to pass

written orders�

216 The Hon'ble Apex Court in Para-21 of the

judgment observed as under:

� It is true that only on the basis of the

illegal investigation a proceeding may not be

quashed unless miscarriage of justice is shown, but,

in this case, as we have noticed hereinbefore. The

respondent had suffered miscarriage of justice as

the investigation made by PW-41 was not fair�

Sanction accorded by PW-37 was also found without


jurisdiction and therefore the Hon'ble Supreme Court

pleased to dismiss the appeal.

217 The facts and circumstances of the case in

hand are entirely different from the facts in the

above cited case. In the case in hand, there were

twin bomb blasts in Mumbai on 25/08/2003. After

receipt of the information of the bomb blast at

Gateway of India PW-92 Vinodkumar Sharma, who was

working as ACP of Azad Maidan Division rushed to the

spot as ACP of Colaba Division in whose jurisdiction

the bomb blasts occurred was on leave.

218 PW-92 noticed a crater having dimension of

3.5 feet to 4 feet and 1 feet to 1.5 feet depth,

near the parafit wall of the sea. Articles having

stains of blood were found scattered there. He also

noticed damaged cab on the place of incident. He was

directed by DCP of Zone-I to carry out the

investigation. Complaint of PW-14 Raes, police


constable was recorded by him and on that basis an

offence was registered. He directed the police

officers to conduct inquest panchnamas of the

deceased persons and to take the injured to St.

George Hospital, GT Hospital and Bombay Hospital.

Panchnama of scene of offence was prepared by PW-92

himself. Sample of stone, soil, pieces of metal

were collected. Pay and Park receipt book was

seized from PW-16 Kartik. Rexine pouch which was

found in front seat of damaged taxi bearing no.MH02-

R-2007 was seized. Certain other steps were also

taken by him and he then recorded the statements of

witnesses. PW-15 Shivnarayan Pandey attended the

police station and he then directed PI Shelar to

record his statement. PI Shelar has also stated

that statement of PW-15 Pandey was recorded by him

as per the direction of ACP Sharma.

219 Initial steps in the investigation were

carried out by ACP Sharma who was kept incharge of


Colaba Division for three days. He alone could not

carry out the entire investigation therefore, he was

required to give direction to PI Shelar to record

the statement of PW-15. As per the directions of

Joint CP (Crime) On 10/09/2003, PW-103 Shri

Walishetty who was posted as ACP (Detection-I) in

North West Region, carried out the entire

investigation pertaining to DCB CID CR NO.157/02,

75/2003, 91/2003 and 86/2003 and after concluding

investigation filed chargesheet on 05/02/2004.

220 In the present case the entire investigation

was carried out by PW-103 Shri Walishetty who was

posted as ACP (Detection-I). Due to constraint of

time PI Shelar was directed by ACP Sharma to record

the statement of PW-15 Shivnarayan pandey.

Therefore it cannot be said that the investigation

into the case was carried out by PI Shelar. In fact,

entire investigation was done by ACP Shri Walishetty

PW-103. Thus, the learned defence Counsel cannot


derive any assistance from the above decision of the

Apex Court.

221 It is argued that accused no.1, his wife and

their two daughters would not have taken risk by

sitting in the taxi in which explosives were

planted. Therefore the evidence of PW-15 inspires

no confidence on the point of probability. Spl.PP

Mr.Nikam has submitted that time was set to the bomb

as 1.00 pm which was planted in the dickey of the

taxi of PW-15 therefore there was no risk at all

for accused no.1 and his family members to travel in

the above taxi from Andheri to Gateway of India till

12.45 hrs. When friend of PW-15 viz. Ramchandra

Gupta was seen coming from front side at Gateway of

India and PW-15 started talking with him at that

time it was accused no.1 Hanif who directed PW-15

not to waste time as accused no.1 wanted that the

bomb should explode at desired place. Spl. PP.

Mr.Nikam thus gave fitting reply to the above


argument of Adv. Wahab Khan.

222 Adv. Pasbola Ld. counsel appearing for

accused no.3 has urged that the evidence of PW-15

regarding the identification of accused no.3 in TIP

is doubtful and unreliable. The above submission

is liable to be rejected as it has come in the

cross-examination of PW-15 taken by Adv. Pasbola

that PW-15 had a talk with the passengers in the

taxi (accused nos.1 and 3 and their daughters) on

25.8.2003 near Siddhivinayak Temple. In this respect

the witness has made clear in his evidence that

while taking the taxi to Colaba, on the way near

Siddhivinayak Temple the person sitting beside him

said that he was suffering from head-ache and he

wanted to have medicine. Taxi was therefore taken to

Century Bazar at the junction where fire brigade

vehicles were standing and there was one medical

shop where taxi was stopped. The person sitting

beside him went to purchase the medicine and came


back and thereafter, the taxi was taken towards

Colaba. This fact also find place in the confession

of accused no.1 Hanif (Ex.P-506/A) and accused no.3

Fehmida (Ex.P-522A). This shows that there was

sufficient time for PW-15 to see and interact with

accused nos. 1 and 3 who were in his company even on

the earlier day for near about five hours. PW-15 had

occasion to observe the accused nos.1 and 3 on

25.8.2003 for more than three hours. PW-15 has no

inimical terms with accused nos.1 and 3. Nothing has

come in the cross-examination of PW-15 that he has

any Axe to grind against accused nos.1 and 3. There

is thus absolutely no scope for false identification

of accused nos.1 and 3 by PW-15. After having

examined the evidence of PW-15 from all angles I

find his evidence reliable and trustworthy.

Communication in between slain terrorist

Nasir and Approver PW-2 Jahid.


223 It transpires from the evidence of PW-6

Manoj Patil that he was working as Senior Executive

in Airtel Co. in the year 2002. He deposed that if

someone wants to contact Dubai by telephone one has

to dial initial digit as 009714 followed by land-

line phone number of Dubai (U.A.E.) and if one wants

to contact to Dubai on mobile he has to dial initial

number as � 0097150� followed by mobile phone number.

He also spoke that if someone wants to contact from

Dubai to Mumbai on mobile, one has to dial country

phone number as � 0091� followed by mobile phone

number.

224 PW-6 Manoj Patil being a Sr. Executive of

Airtel Co. has admitted his signature on the call

details of cell No.9892451164 and 9892077831 which

bears the certificate of authorized signatory to the

effect that the said information of incoming and

outgoing calls of the said mobile numbers were

recorded automatically in the computer. Printouts

of the above cell number were taken out from the

http://U.A.E/


computer of the Airtel company and the call details

are at Ex.P-284(colly) and Ex.P-285(colly). It is

evident from the testimony of PW-2 Jahid that there

is difference of about 1½ hours between Dubai timing

and India timing. The India timing is ahead than

Dubai. It is revealed from the evidence of PW-2 that

Nasir had made phone calls to Dubai from Mumbai

twice. The first call was made at about 9.15 a.m.

and he also received call from Nasir in the evening

at 5.30 p.m. Nasir informed him that work was going

on according to the plan. It is also stated by this

witness that Nasir contacted him on 24.8.2003 from

cell No.9892451164. It is mentioned in the call

details of cell no.9892451164 Ex.P-284 (colly) that

Nasir from his cell No. 9892451164 contacted on cell

no.00971505451488 at Dubai on 24.8.2003 at about

10.48 hrs and there was conversation in between them

for 22 seconds.

225 The evidence of PW-2 discloses that Nasir


informed him at Dubai at 9.30 a.m. that Hanif and

his family and Ashrat had proceeded at two different

spots according to the plan and he was asked to

watch T.V. in the evening on 25.8.2003. Call

details Ex.P-284(colly) show that there was one

outgoing call from calling No.9892451164 to called

no.00971505455488 on 25.8.2003 at 10.59 a.m. Thus

the testimony of PW-2 to the above effect gets

corroboration by the recital in the call details

which is at Ex.P-284 (colly). It is also revealed

from the evidence of PW-6 and from call details

Ex.P-284(colly) that from 22.8.2003 till 25.8.2003

there were total 8 outgoing calls from cell no.

9892451164 to cell no.5451488 at Dubai. On 25.8.2003

the outgoing call on the above cell number was at

10.59.22 a.m. and SMS was also made from cell no.

9892451164 to Dubai No.5451488. It is thus

established that Nasir maintained contact with PW-2

Jahid for giving time-to-time information about

their mission on earlier day (24.8.2003) and on the


day of twin blasts (25/8/2003) in Mumbai.

Identification of accused no.1 Hanif by the witnesses in the TIP held at Mumbai Central Prison on 6.10.2003.

226 Now I turn my attention to the evidence of

TIP dtd. 6.10.2003 which was held by PW-18 Shri

Madhukar Bodke. The sum and substance of evidence of

PW-18 is that on 2.10.2003 he was served letter

Ex.P-321 requesting him to hold TIP in Mumbai

Central Prison of accused no.1 Hanif and accused no.

2 Ashrat on 6.10.2003. He accordingly remained

present in Mumbai Central Prison at 12.30 p.m.

After making inquiry with the members of the public,

two panchas were selected from them. He was shown

identification room by the jailer and he got it

confirmed that the place in which the witnesses were

sitting was not visible from the identification

room. 20 dummies resembling with the suspected

persons were produced by the jailer, out of which 12


were selected. Both the accused i.e Hanif and

Ashrat were taken in identification room and they

were asked to take their place in the row of

dummies. Witnesses were asked whether they were

shown photographs of the suspects prior to parade

and they gave reply in the negative. Suspects were

asked that they could change their clothes if they

desired but, they declined. Initially, PW-15

Shivnarayan Pandey was taken in identification room

and he was asked to view the parade and identify the

suspect. After viewing the parade PW-15 identified

accused no.1 Hanif by pointing out finger and reason

of identification given by PW-15 is noted in the

memorandum Ex.P-323. Thereafter second witness Nafiz

Ahmed was called in identification room who has

identified both the accused persons. It is seen from

the evidence of PW-18 that he has followed the

correct procedure of holding TIP as laid down in the

Criminal Manual.


227 I have already held that the evidence of

PW-15 Shivnarayan Pandey regarding the

identification of accused no.1 in the TIP is found

reliable as he had ample opportunity to observe

accused no.1 for more than 7-8 hours on both the

days i.e on 24.8.2003 and 25.8.2003. Now I turn to

assess the evidence of other two witnesses viz.

PW-19 Nafiz Ahmed Khan and PW-20 Ramchandra Gupta so

far as their identification of accused persons is

concerned.

228 PW-19 Nafiz Ahmed Khan is a businessman and

he is having garment factory at Andheri Juhu Lane,

Samta Nagar, Near Gausiya Kirana Store,

Andheri(West), Mumbai. It is his evidence that on

25.8.2003 at about 10.00 hrs he was standing outside

his factory as the tempo loaded with goods was to

reach to his factory at relevant time. He saw one

rickshaw parked near his factory despite the

congestion of the road. The rickshaw driver had


taken out one big size airbag of gray colour and he

was followed by two ladies and one girl. PW-19

claims to have asked rickshaw driver that he should

have parked the rickshaw elsewhere and he replied

that he was proceeding towards house of his friend

Ashrat who was residing nearby. PW-19 asked

rickshaw driver to park the rickshaw by the side of

the road so that there would be no obstruction for

the tempo which was to arrive shortly with the

goods.

229 PW-19 spoke that after reaching tempo to the

factory it was unloaded and then he left for Surat

by Ahmadabad Passenger Train from Andheri at 12.45

p.m. and returned back at about 8.00 pm on

27.8.2003. After reading news paper and watching

T.V. on 28.8.2003 he came to know that there was

bomb blasts at Gateway of India and Zaveri Bazar,

Mumbai on 25.8.2003 and the taxi driver was

survived. He also read statement of taxi driver in


the news paper that he had taken passengers from

Azad Lane, Andheri, towards Gateway of India. PW-19

therefore raised suspicion about the person carrying

airbag with him on 25.8.2003 at about 10.00 a.m. and

who with two ladies and one girl alighted from the

rickshaw. PW-19 thereafter reported the above fact

to Colaba Police Station.

230 Detail description of the person carrying

airbag and the ladies accompanied him is given by

PW-19. According to him the person carrying airbag

was about 45 years old and the girl was 18 to 19

years old and the lady accompanied him was near

about 35 years of age. The lady was having round

face with whitish complexion and pointed nose and

her height was 5'.2'' or so. PW-19 has identified

accused no.1 in the dock.

231 The above witness was subjected to piercing

cross-examination. He could not tell the


registration number of the auto-rickshaw which was

parked in front of his factory on the above day. It

may be noted that PW-19 had been to Surat on the

same day and returned back at 8.00pm on 27.8.2003.

The news of bomb blast at Gateway of India was

already flashed on the same day on T.V. and next day

in the news paper. Witness however says that he

came to know about the bomb blast occurred at

Gateway of India on 28.8.2003. It is important to

note here that when the entire world was made known

about the occurrence of bomb blasts at Gateway of

India and Zaveri Bazar through T.V. therefore the

evidence of PW-19 that he only came to know about

the bomb blasts at Gateway of India and Zaveri Bazar

on 28.8.2003 is not reliable. This witness spoke in

his examination-in-chief that he came to know about

the bomb blasts through news paper on 28.8.2003 but

in cross-examination it is stated by him that he

learnt about the above incident on 27.8.2003. He has

further admitted in cross-examination that he had


watched the news in T.V. on 25.8.2003 and 26.8.2003

regarding the blasts occurred on 25.8.2003. This

shows that he came to know about the blast on the

very same day. Thus the evidence given by PW-19

about the knowledge of the bomb blast is discrepant

and therefore it is not reliable.

232 Cross-examination of PW-19 shows that he had

been to Surat to buy the goods of Denim Fabrics but

he did not get the goods as per his requirement. He

even did not meet the person from whom he was to

purchase the goods. He has admitted that he has no

evidence to show that he had been to Surat on

25.8.2003.

233 It is the case of PW-19 that one tempo with

goods was unloaded in his garment factory on

25.8.2003. In this respect witness has stated that

he used to make entry in the note-book about the

receipt of the goods. He used to maintain record


from Monday to Friday and then the record was to be

destroyed. Witness has stated that it was not

possible for him to produce any document pertaining

to the receipt of the goods in his factory on

25.8.2003.

234 PW-19 made statement in the cross-

examination that he wrongly spoke before police that

he had taken train at Andheri at 1.45 p.m. to go to

Surat on 25.8.2003. In this respect he has already

stated in his examination-in-chief that he got the

train at Andheri to go to Surat on 25.8.2003 at

12.45 p.m. It is thus seen that the version of the

witness is not consistent.

235 From the evidence of PW-19 it is clear

that he had occasion to see two ladies and one girl

following rickshaw driver across his factory on

25.8.2003. PW-19 might have observed the above

persons for half or one minute but he gave detail


description about the airbag possessed by the

rickshaw driver and the height, complexion and about

the pointed nose of the lady who followed the

rickshaw driver. PW-19 had no sufficient occasion to

observe accused no1. and his family on 25.8.2003 at

about 10.00 a.m. Therefore I find substance in the

argument of Adv. Wahab Khan and Adv. Pasbola that

the evidence of PW-19 about the identification of

accused no.1 and 3 is doubtful. After having made

deep scrutiny of the evidence of PW-19, I find that

his testimony has been completely shaken in his

cross-examination and therefore his evidence is

found not trustworthy.

236. PW-20 Ramchandra Gupta is examined on the

point that he had identified accused nos. 1 and 3 in

the TIP dtd. 6.10.2003 held at Mumbai Central Prison

and Byculla District Prison by Special Metropolitan

Magistrate Shri Madhukar Bodke. Ramchandra Gupta

was having his Bhelpuri stall behind Hotel Taj on


Mahakavi Bhushan Marg which is on the left side of

Regal Cinema. This witness and PW-15 Shivnarayana

Pandey know each other as the native of both is

Uttar Pradesh. According to him PW-15 Shivnarayana

Pandey used to visit his Bhelpuri stall for eating

panipuri and bhel.

237 It is stated by PW-20 Ramchadnra that there

was Shravani Somwar on 25.8.2003 and therefore at

about 12.15 hrs he was going towards Bhid Bhanjan

Mandir which is situated at the junction of Shahid

Bhagatsingh Road and the road leading towards Hotel

Taj. While walking on the footpath of Arthur Bunder

Road near Syndicate Bank at about 12.35 hrs. he saw

that one taxi was halted and one male passenger

siting on front seat got down and two ladies and one

girl also got down who were sitting at rear side. He

thereafter heard voice from taxi as � Guptaji� . He

thereafter saw his friend Shivnarayan Pandey coming

towards him from the taxi. Thereafter both had chit-


chatting and at the same time the passenger who got

down from the front seat of the taxi told

Shivnarayan Pandey that he should take the taxi to

pay & park area at Gateway of India. The said

passenger was insisting Pandey to go early to

parking place near Gateway of India. After hearing

this Ramchandra Gupta also told Mr.Pandey to go

early as his passenger was insisting. Thereafter

PW-20 Ramchandra Gupta went towards Bhid Bhanjan

Mandir. When he reached near Regal Cinema, he heard

big sound of explosion. He then saw police vehicles

were proceeding towards the scene of offence. He

then came to know that there was explosion of bomb

at Gateway of India.

238. According to PW-20 he was required to attend

Arthur Road Jail at 12.30 p.m on 6.10.2003 to

identify the accused persons. He claims to have

identified a bearded person from amongst 14 persons

standing in the row. On the same day at 4.00 p.m.


he remained present in Byculla District Prison and

in the parade he identified one lady out of seven.

The cross-examination of this witness reveals that

out of 14, seven persons in the parade were having

beard. He has not made it clear as to which

particular bearded person was identified by him. He

gave no evidence to the effect that the person

identified by him was asked his name by PW-20 and

the said person stated his name as � Hanif� . He also

gave no evidence that the lady identified by him was

asked her name and she said her name as � Fehmida� .

PW-20 had occasion to see the passengers in the taxi

of PW-15 only for one or two minutes and none of

them had any talk with PW-20. Normally, a person

while going on foot cannot observe the passengers

travelling in the vehicle except some unusual

incident takes place. PW-20 had only causal glimpse

towards the passengers in the taxi and on that basis

it is hardly possible to identify same passengers

after the gap of 40 days. The evidence of PW-20 so


far as his having talk with PW-15 Shaivnarayan

Pandey after his parking taxi near Syndicate Bank is

found reliable, but his evidence on the point of

identification of accused no.1 and 3 in the TIP held

on Mumbai Central Prison and Byculla District Prison

on 6.10.2003 is not believable. I therefore discard

his testimony on the point of identification of

accused nos.1 and 3 in the TIP.

Identification of Accused no.3 Fehmida in T.I.P. dtd. 6.10.2003 held at Byculla District Prison.

239 PW-18 Special Metropolitan Magistrate gave

evidence about the holding of TIP of accused no.3 in

Byculla District Prison at about 4.00 p.m on

6.10.2003. It is stated by him that there was only

one door to identification room from where the

persons siting in the witness room could not be

visible. The panchas who remained present in Mumbai

Central Prison for the TIP of accused nos. 1 and 2


became ready to act as panchas for the TIP of

accused no.3 in Byculla District Prison. Jail

officer Mr.Sonavane produced 13 women as dummies out

of which 6 were selected which were similar to the

face of accused no.3. Witness Shivnarayan Pandey

entered in identification room who was asked to view

the parade and to identify the woman accused. After

viewing the parade he has identified accused no.3 by

pointing out his finger who was standing in the row

in between dummy nos.4 and 5. Accused thereafter

disclosed her name as Fehmida. Since this witness

had sufficient opportunity to observe accused no.3

on 24.8.2003and 25.8.2003 for more than 7-8 hours

therefore his evidence about identification of

accused no.3 in TIP cannot be doubted.

240 According to PW-18, Nafiz Ahmed Khan(PW-19)

has also identified accused no.3 Fehmida in the TIP

who was standing in between dummy nos.2 and 3. The

reason for identification given in memorandum


Ex.P-324 is that the same lady had alighted from the

auto-rickshaw in front of the shop of PW-19 on

25.8.2003. It is already held by this court that

PW-19 had no proper opportunity to observe accsued

no.3 Fehmida on 25.8.2003 and therefore his evidence

on the point of her identification in TIP is not

reliable.

TIP of accused nos. 1 and 2 held at Mumbai Central Prison on 8.10.2003.

241 It was Special Executive Officer Shri Sudhir

Surve, who held TIP of Accused nos.1 and 2 in Mumbai

Central Prison on 8.10.2003. Shri Sudhir Surve

(PW-59) deposed that he received letter Ex.P-414

requesting him to hold TIP of accused nos.1 and 2 in

Mumbai Central Prison and accordingly it was held on

8.10.2003. He reached MCP at 11.00 hrs on the above

day. Two panchas were selected from the public.

Witnesses were Manoj Patil and Dilip Masharam. It


was ensured by him that the witnesses could not be

seen from the place where the identification parade

was to be held. Suspects were brought by jailer and

jailer was also asked to arrange for 18 dummies

resembling the looking of the suspected persons. Out

of 18, 12 dummies were selected by PW-59. Suspects

were asked to stand in the row of the dummies. The

first witness who entered in the identification room

was Manoj Patil. Prior to his entering into the

identification room, the suspects were asked to

change the clothes if they desired. Witness Manoj

Patil was asked whether photographs of the suspects

were shown to him and he gave reply in the negative.

After viewing the parade PW-60 Manoj Patil

identified both the suspects i.e accused no.1 Hanif

and accused no.2 Ashrat. It is stated by PW-59

Sudhir Surve that the reasons given by PW-60 Manoj

Patil about the identification of the suspects have

been mentioned in the memorandum Ex.P-415.


242 Thereafter PW-62 Dilip Motiram Mashram was

taken in identification room and after viewing the

parade accused no.2 Ashrat was identified by him for

the reasons given in the memorandum. Now, I proceed

to assess the evidence of above two witnesses

pertaining to their identification of the suspects.

243 PW-60 Manoj Patil is a building contractor.

On 2.12.2002 he had been to the office of MIDC,

Andheri for his work. After completing the work he

was to proceed towards Santacruz and therefore he

came to SEEPZ Bus Depot at about 5.30 p.m.

Thereafter 5 to 7 minutes BEST bus of route No.312

arrived at the bus stop and the passengers were

standing in the row to enter in the bus. It is

stated by this witness that two persons who were

standing in the row in front of him were chit-

chatting with each other. He requested them to

proceed further. Out of the two, one person turned

at him and said that if he was in hurry he should

have hired a cab. Then both the persons started


talking to each other and the other passengers in

the row became disturbed. The person who was holding

the bag boarded the bus and who handed over the bag

left the row without boarding the bus.

244 It is further testified by PW-60 that after

boarding the bus it was noticed by him that the

person holding the bag took rear side seat of the

left side of the bus. PW-60 also got the seat beside

him. There was some altercation in between the

person holding the bag and the conductor on the

point of change of money.

245 After reaching home PW-60 received message

that his uncle was serious at his native place at

Tasgaon, Dist, Sangli. On the same night he

proceeded Tasgaon by bus and returned back in the

morning on 4.12.2002. He read news in the news paper

about the bomb blast occurred at Ghatkopar and one

unexploded bomb was found in bus route no.312. PW-60


said that he immediately remembered the incident of

altercation in between one passenger and conductor

occurred in bus of route no.312. Then he proceeded

to MIDC police station and gave information

regarding the above incident. This witness was

summoned to attend TIP held at MCP on 8.10.2003.

According to him out of the 14 persons standing in

the row he identified accused nos.1 and 2. It is

important to note here that the reasons of

identifying accused nos.1 and 2 have neither been

stated by PW-60 Manoj Patil nor by SEO Shri Sudhir

Surve in their evidence. The evidence of identifying

witness PW-60 Manoj is thus vague and therefore such

vague evidence cannot be relied upon. I therefore

discard his testimony for the above reasons.

246 PW-62 Dilip Motiram Mashram was the BEST bus

conductor and he was on duty of BEST bus route No.

312 on 2.12.2002. It is deposed by him that BEST bus

bearing registration No.MH-01 H-8765 was halted at


SEEPZ Bus Depot at route no.312. Thereafter

commuters boarded the bus in a queue and nothing

took place at the time of commuters boarding the

bus. It is denied by him that while commuters were

boarding the bus he was standing on the rear side of

the gate of the bus and quarrel was going on in

between commuters in his presence. Since this

witness has completely resiled from his previous

statement he has been cross-examined by Spl.P.P.

PW-62 has denied to have identified accused no.2

Ashrat in the TIP held on 8.10.2003. The evidence of

this witness is therefore not useful to the

prosecution.

Identification of accused nos.2 and 3 in the TIP held on 1.10.2003 at Mumbai Central Prison by PW-46.

247 PW-52 Shri Waman Sapre, a Special Executive

Officer held TIP of accused no.1 to 3 on 1.10.2003

at Mumbai Central Prison. PW-52 Waman Sapre deposed


to the effect that he received letter dtd. 30.9.2003

requesting him to hold TIP of accused nos.1 to 3 in

Mumbai Central Prison. The date of holding TIP was

fixed by him on 1.10.2003. He accordingly visited

Mumbai Central Prison on the above date. He selected

two panchas from the public and dummies resembling

to the looking of accused nos.1 to 3 were also

selected from undertrial prisoners. He inspected the

identification room and it was found that it was not

visible from the room where the witnesses were made

to sit. He asked dummies to stand in a row and

thereafter asked the suspects to take their position

in the row. He made inquiry with the suspects

whether they were shown by the police to the

identifying witnesses prior to the parade and they

replied in the negative.

248 PW-52 deposed that identifying witness Shri

Anil Vishwakarma was taken in the identification

room by one of the panchas and he was asked to


identify the suspects. PW-46 stated that he

identified one male person out of the 14 persons in

the row and one woman was identified out of 7 female

in the row. He gave no evidence to the effect that

names of such persons (male and female) were asked

by SEO Shri Waman Sapre and the witness gave their

names as Ashrat and Fehmida. Even though this

witness has identified accused nos.2 and 3 in the

dock but he gave no reasons of their

identifications. On this sole ground his evidence

cannot be taken into consideration.

249 Anil Mulchand Vishwakarma (PW-46) is the

Carpenter residing at Shivkrupa Society, R.No.304,

Pant Nagar, Ghatkopar, Mumbai. According to him he

had gone to Andheri (East) for doing work on

28.7.2003 and started returning back to home at 8.00

p.m. by BEST bus of route no.304. BEST bus was full

of passengers when it was boarded by him at Andheri

(East). He however found one seat vacant on the last


bench at rear side. He sat by the side of the

window. At that time one man and woman entered in

the bus. The said woman requested him to have a seat

near window side. He therefore accommodated the

couple by giving them window side seat. They were

having bag and the said bag was kept by them beneath

the seat of the bus. When the bus proceeded further

thereafter sometime the said person started pushing

him and then PW-46 said him � Bhaisab dhakka mat

maro� and the person replied � tere akeleki bus nahi

hai� . The talk in between them increased gradually

and the woman then beg him pardon saying � bhaisab

maph kijiye galati ho gai� . Then the man and woman

alighted at Marol Naka stop leaving the bag beneath

the seat.

250 After sometime PW-46 got the front seat and

thereafter he heard sound of big blast from back

side of the bus. He alongwith other passengers got

down from the bus and he then came to his house. It


is his testimony that he was feeling like deaf as he

was unable to hear therefore he was admitted in

Rajawadi Hospital as indoor patient and was given

treatment for 10 days. His statement was recorded by

police on 29.10.2003 in the hospital itself. Witness

has pointed out towards accused no.2 Ashrat in the

dock saying that it was the same person who was

travelling in the BEST bus alongwith one burkha clad

woman on the day of the blast. Accused no.3 was

asked to remove veil from her face and thereafter

she was also identified by PW-46 saying that it was

the same lady who travelled alongwith accused no.2

in the BEST bus on 28.7.2003.

251 Ex.P-389 is the memorandum prepared by PW-52

Shri Waman Sapre regarding the identification of

accused nos.2 and 3 by PW-46 Anil Vishwakarma. The

reasons given by identifying witness PW-46 of

identifying the above two accused persons are

recorded in the above memorandum.


252 It is stated in the memorandum Ex.P-389 that

on 28.7.2003 at about 9.00p.m. one person and female

in veil were alighting hastily from BEST bus of

route no.340 at Marol Pipeline stop. At that time

PW-46 was pushed by them and on that count there was

altercation in between the said person and the woman

and PW-46. Evidence of PW-46 is silent on the said

incident of altercation and pushing of PW-46 by the

couple while alighting at Marol bus stop. There is

thus material discrepancy in the recitals of the

memo Ex.P-389 and the evidence of PW-46. Evidence of

PW-46 lacks in material particulars. His evidence is

completely vague and therefore it can hardly be

relied upon. I therefore place no reliance on his

testimony.

253 Ex.P-391 is the memorandum prepared by

Special Executive officer Shri Waman Sapre of the

parade held on 11.10.2003 at Mumbai Central Prison


and Byculla District Prison regarding the

identification of acused no.2 Ashart and accused no.

3 Fehmida by PW-54 Dilip Wankhede. It is seen from

the memo that accused no.2 Ashrat was not identified

by PW-54 but accused no.3 Fehmida was identified by

him by touching to her body who was standing in

between dummy nos.2 and 4. It is therefore necessary

to go through the evidence of identifying witness

PW-54 Dilip Wankhede.

254 PW-54 a bus conductor deposed that on

28.7.2003 at about 8.15 p.m. he himself and the bus

driver took the bus of route no.340 at Andheri where

commuters boarded the bus. There were in all 59

commuters in the bus. From the starting one lady in

veil occupied the right hand last seat in the bus

and when the bus reached at Asalpha bus stop the

said lady was not found in her seat. Thereafter

there was blast in the bus and in the said blast he

became unconscious and he regained consciousness in


Rajawadi Hospital. He was required to take treatment

in Rajawadi Hospital for 22 days. This witness has

stated in clear terms that he will not be able to

identify the lady accused if shown to him. He is

also unable to give the description of the lady

accused. According to him, he attended TIP in

Byculla District prison on 11.10.2003 but he could

not identify the lady accused. Since the witness has

failed to identify accused no.3 Fehmida either in

TIP or in court therefore his evidence is hardly of

any use to the prosecution.

Identification of accused no.2 in the T.I.P. held on 9.10.2003 at Mumbai Central Prison by PW-28 and PW-30.

255 Special Executive Officer Shri Dushyant Oza

(PW-41) deposed that he received letter Ex.P-363 on

5.10.2003 requiring him to hold TIP of accused no.2

in Mumbai Central prison. PW-41 thereafter decided

to hold the parade on 9.10.2003 and apprised ACP


Jedhe and API Parab accordingly. He reached Mumbai

Central Prison at about 12 hrs. He thereafter

selected two panchas from the public. He requested

jailer Shri Jagavar for making arrangement of

dummies. Out of 18, 12 dummies were selected who

were having similar features with the suspects. Both

the suspects were taken in identification room and

they were asked to stand in the row of dummies.

Thereafter witness Dilip Yagnik was taken in

identification room by panch Rajesh Kachariya.

Witness was asked to identify the suspect out of the

14 persons standing in the row. Witness Dilip

Yagnik after viewing the parade touched the person

who was standing in between dummy nos.4 and 5 and he

was accused no.2 Asrhat. The reason given by the

witness for identification of accused no.2 Ashrat is

noted in the memorandum. Thereafter witness viz.

Harish Popat was taken in the identification room

and he was asked to identify the suspect out of the

14 persons standing in the row. PW-30 Harish Popat


pointed out a person who was standing in between

dummy nos. 9 and 10 and the said person disclosed

his name as Arshad. Memorandum to the above effect

was prepared by Special Executive Officer Shri

Dushyant Oza which is at Ex.P-192. In the light of

the above evidence of PW-41 Dushyant Oza it is

necessary to make scrutiny of the evidence of

identifying witnesses i.e PW-28 Dilip Yagnik and

PW-30 Harish Popat.

256 Dilip Yagnik was serving in STD booth of

Kantilal Jain which was situated at 5, Vitthalwadi,

Zaveri Bazar, Mumbai-2 and it is at the distance of

three minutes by walk from Mumbadevi temple. He

deposed that there were three instruments in his STD

booth bearing No.56389009, 22419096 and 56250089. He

alone was working in the STD booth from 9.00a.m. to

5.00p.m. On 25.8.2003 at about 12.15 p.m. one person

came in his booth and made call to one Nasirbhai

saying � Maine Mumbadevi mandir ke paas taxi me mal


bhara hai. Thodi der me kam ho jayega� . The said

person gave currency note of Rs.10/- to PW-28 as he

was not having change. He was asked to obtain the

change from nearby shop. He again came back after

5-7 minutes and asked the witness to retain currency

note of Rs.10/- as he did not get the change.

According to the witness, the person calling was

aged about 25 to 26 years of fair complexion, slim

built and his height was 5½'. PW-28 pointed out

towards accused no.2 Ashrat sitting in the dock and

said that he was the same person who had come to his

booth on 25.8.2003 at 12.10 hrs for calling Nasir.

It is stated by this witness in clear terms that

accused no.2 talked to Nasir on the telephone

instrument of UGS Co. having No.56389009.

257 P.W.28 gave evidence to the effect that at

about 1.00p.m. on 25/08/2003 he heard loud explosion

and therefore he closed the shutter due to the fear.

Persons in Zaveri Bazar were proceeding towards


Mumbadevi Temple. He immediately called to his

employer and apprised him about the blast and said

that he was closing the shop. Above evidence of

PW-28 is well corroborated by the recitals in call

report of cell no. 9892451164 which is at Ex.P-284

(Colly). It is already held by this court that the

above cell number was being used by wanted accused

Nasir who is now no more. It is revealed from

Ex.P-284 (colly) that on 25.8.2003 at about 12.13.49

p.m. caller contacted to cell No.9892451164 from the

instrument of PCO bearing number 2256389009 and the

conversation in between the caller and called party

was 89 seconds. The time of communication deposed to

by PW-28 in between caller and Nasirbhai is at 12.15

hrs. and the time mentioned in the call details

Ex.P-284(colly) is 12.13.49 p.m. Thus the ocular

testimony given by PW-28 is fully substantiated with

all necessary particulars by the document

Ex.P-284(colly). The testimony of PW-28 does not

stand discredited in his cross-examination. It is


worthwhile to note here that the witness is

suggested in his cross-examination on behalf of

accused no.2 that he joined service at STD booth

since last three months in order to join in this

case as a false witness. The said ridiculous

suggestion is denied by the witness. It is thus

proved that accused no.2 Ashrat had been in Zaveri

Bazar area at noon time on 25.8.2003 prior to

occurrence of the blast and apprised wanted accused

Nasir at about 12.13p.m. that taxi was parked by him

near Mumbadevi Temple with the � goods� loaded

therein and work will be done shortly. The above

conduct of accused no.2 shows his overt act of

causing explosion of bomb in Zaveri Bazar area in

pursuance of the conspiracy.

258 PW-29 Kunjbihari Pandey is having Bidi shop

and PW-33 Kutty Manappa Shetty is having Pan shop

at Dhanji Street Naka, Mumbai. They deposed that

quarrel was going on in between pedestrians and


motorcyclists at about 6.00 p.m. on 24.8.2003. They

heard quarrel from the distance of 300 meters of

their shops and thereafter both went to the place

of quarrel. One motorcyclist and two pedestrians

were quarreling each other. The pedestrian who was

pushed uttered words � Nasirbhai Gandabhai Andha Ho

Gaya kya, samanewala Admi koi dikhata nahi kya� .

The person who was on the bike said him � gali mat

thena tum kya karega� . The pedestrian replied � kaun

kiska kya karega yah tumako kal dopahar ko malum

padega� . Thereafter driver of the motorbike and the

pedestrians indulged in scuffle and it was subsided

by PW-29 and PW-33. Thereafter those persons left

the spot. On the next day at about 1.00 p.m. there

was blast in the taxi. In the above blast many

persons lost their lives and several persons became

injured. The witnesses therefore recollected that

the pedestrians who were quarreling with the

motorcyclist on the earlier day in the evening

might have involved in the blast. Both the witnesses


were required to attend Mumbai Central Prison on

9.10.2003 to identify the suspect. After viewing

the persons standing in the parade, both the

witnesses identified accused no.2 saying that the

same person was present in the quarrel which

occurred in the evening of 24.8.2003 at Dhanji

Street, Mumbai.

259 The cross-examination of PW-29 discloses

that he went to the place of quarrel within 2-3

minutes. The pedestrians gave threat only to

motorcyclist and not others. PW-29 was asked in

cross-examination that the threat was given to

motorcyclist and the said threat had no relation

with the incident of bomb blast. Witness gave reply

that it was the job of police to find out the

relation and he had merely informed to the police

whatever happened. He has further stated that it

was his first time to report the incident of quarrel

to police. Except PW-29 Kunjbihari Pandey and PW-33


Kutty Manappa Shetty, no other shopkeepers went to

the spot to subside the quarrel. The quarrel of

pedestrians with motorcyclist is alleged to have

taken place in the evening of 24.8.2003 and accused

no.2 was identified by both the above witnesses in

the TIP held on 9.10.2003 as a person quarreling

with the motorcyclist. The said quarrel was a

routine matter and therefore there was no special

reason for the above witnesses to identify accused

no.2 after the gap of 45 days. The above two

witnesses are having Bidi and Pan shop at Dhanji

Street in Mumbai. Their evidence that they left the

shops to subside trivial quarrel which was going on

at a distance of 300 meters inspire no confidence. I

am therefore not inclined to give any weight to

their evidence pertaining to identification of

accused no.2 in the TIP held on 9.10.2003.

260 Both the above witnesses have spoken to have

identified the photographs of Nasir in photo


identification parade held on 3.1.2004. According to

defence counsel Adv. Wahab Khan, the provision of

holding identification of person on the basis of

photograph given in Sec.22 of TADA Act is held

violative of Art-21 by the Hon'ble Supreme Court in

a case Kartar Singh V/s State of Punjab 1994 CRI.

L.J. 3139. Majority view of the Hon'ble Supreme

Court on the above point is as under:

� Majority view � If the evidence regarding

the identification on the basis of

photograph is to be held to have the same

value as the evidence of a test

identification parade. Gross injustice to

the detriment of the persons suspected may

result. Therefore, S.22 would be liable to

be struck down being violative of Art.21� .

261 In view of the above observation of the

Hon'ble Apex Court,the evidence of both the above

witnesses on the point of identification of photo of

deceased Nasir in photo identification parade held


on 3.1.2004 cannot be considered as submitted by

Adv.Wahab Khan, Ld.Counsel appearing for accused no.

1.

Confessions of Accused nos. 1 to 3

262 It is transpired from the confession of

accused no.1 Hanif that while he was doing job at

Dubai he came in contact with Pak Nationals i.e

Shafakat, Abid, Khalidbhai, Samiulla, Bilal and

Rehan and Indian Nationals i.e PW-2 Jahid and Nasir.

Hanif returned India in the month of September-2002

and Nasir came back to India in the month of

October-2002. Pw-2 Jahid continued to reside in

Dubai. While returning to India, PW-2 Jahid gave a

letter to Hanif directing him to hand over the same

to accsued no.2 Ashrat. Accused no.1 thereafter

contacted Ashart as his phone number was already

made known to him by Jahid which is 26240267.

Accused no.1 Hanif thereafter started contacting

Accused no.2 Ashart frequently. Nasir, Ashrat and


Hanif often used to meet each other in the house of

Hanif from October-2002. All the above three

persons held meeting in the house of Hanif at about

5.30p.m. on 29.11.2002 and they again met at the

same place on 2.12.2002. Nasir had come to the

house of accused no.1 Hanif at about 4.00 p.m. on

2.12.2002 alongwith a cloth bag containing bomb.

Thereafter half an hour Ashrat reached there. On

the same day in the evening as per the plan accused

no.1 Hanif and accused no.2 Ashrat reached at SEEPZ

Bus Depot alongwith a cloth bag containing bomb and

accused no.2 Ashrat boarded BEST bus No.312 and

asked accused no.1 Hanif to go back.

263 Evidence of PW-61 Shankar Revdekar, who was

working as Starter in the SEEPZ Bus Depot discloses

that BEST bus bearing registration No. MH-01 H-8765

was plying on bus route No.312 and later on it was

converted into bus route no.336. It is mentioned in

the FIR of MIDC Police Station of C.R.No.400/02


which is at Ex.P-404 that a suspicious article was

found kept in the cloth bag at the rear side of the

BEST bus bearing No.MH-01 H-8765 which was later on

detected as live bomb and it was defused by the BDDS

squad.

264 It is revealed from confessions of accused

nos. 1 to 3 that accused no.2 Ashrat reached to the

house of accused Hanif at about 4.00 p.m. on

27.7.2003 and thereafter half an hour Nasir came

there. Then all the three persons i.e Hanif, Ashrat

and Nasir prepared bombs by using gelatine sticks,

timer and detonators on the loft of the house of

Hanif. At the same time it was decided by them to

keep one of the bombs in the BEST bus of route no.

340.

265 On the next day in the evening i.e on

28.7.2003 Ashrat visited Hanif's house. Accused no.

2 Ashrat and accused no.3 Fehmida who is the wife of


Hanif left the house with a bag containing bomb and

reached Andheri bus stop where they boarded BEST bus

of route no.340. The cloth bag containing bomb was

put by them beneath the rear seat of the bus.

Ashrat and Fehmida had taken two tickets of Asalpha

village but alighted at Marol Pipeline bus stop and

thereafter at about 21.10 hrs. on the same day the

bomb was exploded at Karani Lane, Lal Bahadur

Shastri Marg Junction in front of Telephone

Exchange, Ghatkopar(West), Mumbai-86.

266 On the next day i.e 29.7.2003 Ashrat and

Nasir came to the house of Hanif where they

discussed about the low impact of the explosion of

the bomb which was kept in the BEST bus of route No.

340. In the same meeting they decided to explode the

bombs of great magnitude to cause more damage.

Nasir thereafter went to his native at Hyderabad and

returned back to Mumbai on 16.8.2003 in a red

colour Maruti Car in which four bags each containing


500 gelatine sticks were kept. Nasir reached to the

house of Hanif on above day at about 10.00 p.m. Four

bags containing gelatine sticks were kept by him on

loft of the house of accused no.1 Hanif. On that

night he stayed in the house of Hanif. On the next

day Nasir called Ashrat to the house of Hanif and

all the three persons planned to cause bomb blast at

Gateway of India and Mumbadevi. Thus the plan of

causing bomb blasts at above two places was made by

Hanif, Ashrat and Nasir in the house of Hanif on

17.8.2003. Nasir on 22.8.2003 again came to the

house of Hanif and disclosed him his plan of

causing bomb blasts at above two places on

25.8.2003. Thus the date (25.8.2003) of exploding

bombs at above two places was fixed on 22.8.2003.

267 On 24.8.2003 Nasir asked Hanif that he (A-1)

alongwith his wife and their both the daughters to

visit Gateway of India in a taxi under the pretext

of tourist so as to fix the place of exploding bomb.


Nasir also told Hanif that he had already directed

Ashrat to hire a taxi and manage to park it near

Mumbadevi Temple for exploding bomb on 25.8.2003.

268 It is transpired from the evidence of PW-15

Shivnarayan Pandey and the confessions of accused

nos.1 to 3 that on 24.8.2003 Nasir, accused no.1

Hanif, accused no.3 Fehmida and her two daughters

hired a taxi at Andheri bearing No. MH-02 R-2007 to

go to Colaba. Above taxi was owned by PW-15

Shivnarayan Pandey who himself was driving the same.

On the way to Colaba they visited tourist places,

viz. Hajiali, Chowpaty and Aquarium and thereafter

reached to Colaba. PW-15 Shivnarayan Pandey was

asked to park the taxi in front of Hotel Taj at � Pay

& Park� site. Hanif and his family members and

Nasir had a lunch in Bagdadi Hotel and thereafter

they came to parking place i.e pay & park site in

front of Hotel Taj near Gateway of India which place

was fixed by them for exploding bomb. All the above


persons returned to Andheri till 15.30 hrs. and they

asked PW-15 Shivnarayan Pandey to come on the next

day at about 10.00 hrs to go to Colaba.

269 Nasir came to the house of Hanif at about

11.30 p.m. on 24.8.2003. Nasir and Hanif went to

the loft of his house and prepared two bombs by

using 125 gelatine sticks and time was set to both

the bombs at 1.00 p.m. of 25.8.2003. Nasir told

Hanif that the above bombs prepared by them were of

great magnitude as highly explosive material was

used for preparing the same. These two bombs were

kept in two separate bags. One of them was kept in

gray colour airbag and another was kept in sky-

blue colour bag and both the bags containing bombs

were kept in red colour Maruti car of Nasir.

Accused no.2 Ashrat reached to the house of Hanif at

about 8.00 a.m. on 25.8.2003 and again they

discussed about their plan of exploding bombs at

Gateway of India and Zaveri Bazar.


270 As per the plan Hanif, his wife Fehmida and

their both the daughters reached to Rubi Coach Co.

at Chimatpada in their rickshaw. Nasir and Ashrat

had already reached near the factory with their

Maruti car. Nasir handed over gray colour airbag to

Hanif. Nasir apprised Hanif that time of 1.00p.m was

set in the bomb which was kept in the gray colour

airbag. Hanif thereafter took his auto-rickshaw in

Barfiwala Lane and hired the taxi of PW-15

Shivnarayan Pandey from Azad Galli. Taxi driver was

asked to take the vehicle inside Azad Galli near the

building which was under construction where rickshaw

of Hanif was parked. The gray colour bag was taken

out by Hanif from the rickshaw and it was put in the

dickey of the taxi. Hanif, his wife Fehmida and

their daughters got into the rickshaw and they

proceeded towards Colaba at about 10.30 hrs. When

the taxi reached near Electric House and Bhid

Bhanjan Mandir at about 12.35 hrs, taxi driver


Pandey gave call to his friend Ramchandra Gupta

coming from front side. He therefore stopped taxi

and started chit-chatting with him. At that time

accused no.1 Hanif asked the taxi driver not to

waste time and take the taxi immediately to the

place where it was parked on earlier day. PW-15

Shivnarayan Pandey thereafter parked his taxi at Pay

and Park site in front of Hotel Taj at Gateway of

India. Parking receipt bearing No.566 which is at

Ex.P-312-A mentions that the PW-15 Shivnarayan

Pandey parked his taxi at parking place at about

12.40 hrs. PW-15 was directed by accused no.1 not

to abandon the taxi till their arrival and the

intention of giving such direction to PW-15 was that

he should die in the bomb explosion, so that there

should not be any eye-witness to the explosion of

the bomb in the taxi.

271 Recitals in the confession of accused no.1

Hanif and Fehmida that they had been to Colaba and


visited Gateway of India on 24.8.2003 and 25.8.2003

in a taxi is well supported by the ocular testimony

of PW-15 Shivnarayan Pandey and the documents i.e

parking receipts Ex.P-316 and Ex.P-312A. PW-15

Shivnarayan Pandey has identified accused nos.1 and

3 in identification parade which was held at Mumbai

Central Prison and Byculla District Prison on

6.10.2003 vide memorandum Ex.P.323 and Ex.P-324 as

the persons who travelled in his taxi from Andheri

to Colaba on 24.8.2003 and 25.8.2003. He has also

identified both the accused in the court saying that

the same persons had hired his taxi on 24.8.2003 and

25.8.2003 from Andheri to Gateway of India. It is

deposed by PW-15 Shivnayaran Pandey that it was

accused no.1 Hanif who put his gray colour airbag in

the dickey of the taxi and the taxi was exploded at

parking place at about 1.00 p.m on 25.8.2003. Thus

facts mentioned in confessions of accused nos.1 and

3 are well corroborated by the unshattered testimony

of taxi driver PW-15 Shivnarayan Pandey.


Confession of Accused no.2 Ashrat

272 It is stated in the confession (Ex.P-501A)

of accused no.2 Ashrat that on 25.8.2003 he himself

and Nasir had been to Asalpha and hired a taxi to go

to Zaveri Bazar. The same taxi was initially taken

to Chimatpada, Marol. where a red colour Maruti car

was parked. Nasir took out one sky-blue colour nylon

bag from the Maruti Car and put the same in the

dickey of the taxi and Nasir left the spot. Accused

no.2 Ashrat sat in the taxi on the front side beside

the driver and asked the taxi driver to take it to

Zaveri Bazar. Taxi was reached to Zaveri Bazar at

12.00 hrs. Accused no.2 Ahsrat tried his level best

to park the taxi at the place which was already

fixed on the earlier day but that place was not made

available for parking the taxi. Taxi was therefore

parked in the taxi stand. Accused no.2. Ashrat left

the taxi saying the taxi driver that he wanted to


purchase some goods. Ashrat thereafter contacted

Nasir by making him phone call at about 12.10 hrs.

and shortly thereafter taxi was blown in the

explosion. Recital in the confession of Ashrat that

after parking taxi at taxi-stand in Zaveri Bazar and

then he contacted Nasir by making him phone call at

12.10 hrs., stand corroborated by the testimony of

PW-28 Dilip Yagnik and the call details Ex.P-284

(colly).

273 From the evidence of PW-28 Dilip Yagnik it

is found that he was serving in STD booth situated

at 5, Vitthalwadi, Zaveri Bazar, Mumbai-2. There

were three telephone instruments in the said booth

and instrument no.56389009 was one of them. It was

accused no.2 Ashrat who on 25.8.2003 at 12.15 hrs.

made phone call to Nasirbhai through the above STD

booth and said him � maine Mumbadevi Mandir ke pas

taxi me mal bhara hai. thodi der me kam ho jayega� .

There is evidence that Nasir was using cell number


9892451164. Call details Ex.P-284(colly) of the

above cell number makes it clear that the above cell

number was contacted through telephone instrument

No.56389009 at about 12.13.49 p.m. on 25.8.2003.

Thus the above contents of the confession of accused

no.2 Ashart is substantiated by the ocular

testimony of PW-28 and the document Ex.P-284

(colly).

274 Adv. Pasbola Ld. Counsel appearing for

accused no.3 has submitted that confession of

accused no.3 cannot be taken into consideration as

the recording officer did not record his

satisfaction that the confession of accused no.3 was

voluntary. In support of this submission he has

placed reliance upon Bharatbhai alias Jimi

Premchandbhai V/s State of Gujarat AIR, 2002 SCC

3620. In the above case the Hon'ble Apex Court

observed in para 46 as under:

� in the present case, admittedly Rule 15(3)

(b) has not been complied. No memorandum as


required was made. There is also no

contemporaneous record to show the

satisfaction of the recording officer after

writing of confession that the confession

has been voluntarily made. The confession of

accused no.7 does not even state that it

was read over to him. Thus, confessional

statements are inadmissible and cannot be

made basis of upholding the conviction.

Once confessional statements are excluded

the conviction cannot be sustained� .

275 I have examined the confession of accused

no.3 to see whether it complies with the requirement

given in the above paragraph. It is important to

note here that no rules have been framed under the

Prevention of Terrorism Act, 2002 pertaining to

recording of the confession. Sec.32 of POTA 2002 is

the self contained code on the point of recording of

confession of the accused. I have already observed

that sub-sections (2) to (5) of Sec.32 of POTA, 2002

have been complied with so far as confession of

accused nos.1 to 3 are concerned. The statutory


warning was given to the accused by recording

officer (PW-90) that accused was not bound to make

the confession and if it was given the same would be

used as evidence against her. Accused was given

time for more than 24 hours for reflexion and

confession was recorded in free atmosphere. DCP

Mrs.Archana Tyagi (PW-90) who has recorded

confession of accused no.3 has recorded her

satisfaction below the confession by making separate

endorsement to the following effect:-

� I have explained to the accused that she

is not bound to make a confession and that,

if she does so, any confession that she

makes, may be used as evidence against her

and I am satisfied that this confession has

been made voluntarily. It has been made

before me and in my hearing and has been

recorded by me in the language in which it

is made and as verbatim and correct and

containing also full and true account

of the confession made by her''.

276 It is also seen from the confession of


accused no.3 Ex.P-522/A that the confession was read

over to the accused and she had admitted to have

recorded it correctly. DCP Mrs.Archana Tyagi has

also maintained contemporaneous record regarding the

confession. Thus all the procedural formalities have

been observed and complied with by DCP Mrs.Tyagi

while recording the confession of accused no.3

Fehmida and therefore confession of the accused no.3

is admissible.

277 Accused nos.1 to 3 have admitted in their

confessions about their involvement of preparing

bombs and placing the same in the BEST bus of route

No.312(336) on 2.12.2002 and in BEST bus of route

no.340 on 28.7.2003. They have also admitted their

involvement in the bomb blast occurred at Zaveri

Bazar and Gateway of India on 25.8.2003. All

procedural safeguards were followed by the concerned

Deputy Commissioners of Police while recording the

confessions of accused nos.1 to 3. Facts stated in


the confessions receive sufficient corroboration

from oral and documentary evidence. I, therefore

hold that the confessions of accused nos.1 to 3 are

voluntary and truthful and therefore they can safely

be relied upon.

Criminal Conspiracy and Evidence of P.W.2

278 When two or more persons agree to do, or

cause to be done an illegal act, or an act which is

not illegal by illegal means, such an agreement is

designated a criminal conspiracy. The gist of

offence of criminal conspiracy under section 120-A

of IPC is a bare agreement to commit an offence

which is made punishable under section 120-B.

Generally conspiracy is hatched in secrecy and it

may be difficult to adduce direct evidence of the

same. It is essential that the offence of conspiracy

requires some kind of physical manifestation of

agreement. The evidence as to transmission of

thoughts sharing unlawful designs may be sufficient


to prove the conspiracy. Offence of criminal

conspiracy is a continuing offence and its

continuance is a threat to the society against which

it was aimed at.

279 It emerges from the evidence of PW-2 Jahid

that he went to Dubai in June-1999 for the purpose

of job and returned to India on 1.10.2003. He came

in contact with Nasir in a Masjid at Dubai in the

month of August-2000. Whenever he used to go to

Masjid for offering prayer, he used to meet

Pakistani Nationals i.e Bilal, Samiulla, Rehman,

Abid and Naeem and Indians viz. Hanif and Nasir.

According to him, he himself and Hanif, Nasir,

Rehman, Bilal, Samiulla and Abid were all members of

Lashkar-E-Taiba. PW-2 Jahid has joined Lashar-E-

Taiba in the year 2000 because he wanted to take

revenge of atrocities on Muslims which were shown in

CDs in respect of Gujarat incident. According to

him, Lashakr-E-Taiba is a Pakistan based terrorist


organization established with a view to spread

terrorism. After his becoming member of Lashkar-E-

Taiba, he was motivated by his associates that he

should go to India and do something to spread terror

for the religion and the terror was to be spread by

causing bomb blasts. Evidence of PW-2 shows that his

associates Hanif and Nasir underwent training for

causing bomb blasts. The training consisted

preparation of bombs and handing of fire arms. It is

stated in clear terms by PW-2 Jahid that he himself,

Nasir, Hanif, Samiulla, Bilal, Rehman and Abid

hatched criminal conspiracy in the month of

August-2002 at Dubai for causing bomb blasts in

Mumbai. Nasir, Hanif, Ashrat and Fehmida gave effect

to the above plan.

280 PW-2 spoke about the plan of causing bomb

blasts in Mumbai. The first bomb blast was to be

caused at SEEPZ in Andheri on 2.12.2002. Second bomb

blast was to be caused at Ghatkopar in BEST bus on


28.7.2003. Third and fourth blast was agreed to be

caused on one and the same day i.e 25.8.2003 at

Zaveri Bazar and Gateway of India. PW-2 was

informed by Hanif that plan of causing bomb blast

at SEEPZ had failed. PW-2 Jahid thereafter told him

to carry out the work further by causing big bomb

blast explosion. When PW-2 Jahid had been to Mumbai

in the month of May-2003 at that time it was accused

no.2 Ashart who had come to Sahar Airport to receive

him. PW-2 stayed in Mumbai for one month i.e

May-2003 during which he had an occasion to meet

Hanif, Nasir and Ashrat. The evidence to the above

effect given by PW-2 does not stand discredited in

his cross-examination.

281 PW-2 deposed that on 24.8.2003 he was

contacted twice by Nasir from Mumbai in the morning

at about 9.15 a.m and in the evening at 5.30 p.m.

and Nasir informed him that the work was going on

according to the plan. Nasir was using cell no.


9892451164 and the phone number of Jahid at Dubai

was 00971505451488. Ex.P-284(colly) is the print

out of the call details of the cell number of Nasir

i.e 9892451164 which is proved by PW-6 Manoj Patil

who was working as Sr. Executive at Airtel Co.

There is difference of about 1½ hours between Dubai

timing and India timing and India timing is ahead.

It is seen from call details Ex.P-284(colly) that

there was conversation for near about 22 seconds on

24.8.2003 at about 10.48.28 a.m. and the caller was

holder of the cell number 9892451164 who contacted

calling number 00971505451488. On the same day

Nasir contacted Jahid at about 6.58.39 p.m. Nasir

also informed Jahid to watch T.V. in the evening on

25.8.2003. PW-2 Jahid has made it clear in his

evidence that their plan of causing bomb blast in

Mumbai was executed by Nasir, Hanif, Ashrat and

Fehmida. Confessions of accused nos.1 to 3

corroborate the above evidence of PW-2 Jahid. Thus

evidence of PW-2 Jahid stand corroborated by the


recitals in Ex.P-284 (colly) and confessions of

accused nos.1 to 3. PW-2 had admitted suggestion

given to him in cross-examination on behalf of

accused no.3 that as he was repenting for the crime

and wanted to suffer punishment therefore he had not

engaged any advocate. PW-2 even did not make formal

request to the court of tendering him pardon. It is

IO and Spl.P.P. who after filing charge-sheet made

application to the court for granting conditional

pardon to PW-2 as per section 307 of Cr.P.C.

282 Persons who become party to the criminal

conspiracy act secretly without leaving any clue.

In the present case, testimony of PW-2 Jahid is the

direct evidence of the conspiracy hatched in between

him and his associates viz. Nasior, Hanif and

Pakistani Nationals viz. Bilal, Samiulla, Abid and

Rehman of causing terrorist acts in Mumbai by

exploding bombs and the said plan was executed by

deceased Nasir and accused nos.1 to 3 collectively.


283 After having examined the entire prosecution

evidence and the testimony of PW-2 I find that he

was party to the criminal conspiracy initially

hatched in the house of Nasir at Dubai in the month

of August, 2002 in between him and deceased Nasir,

Accused no.1 Hanif and wanted accused persons of

causing bomb blasts in Mumbai. Evidence of PW-2

Jahid receive corroboration in material particulars

in the form of confession of accused no.1 to accused

no.3 and call details of cell number of Nasir which

is at Exh.P-284 (colly) and seizure of hazardous

explosive substances from the house of accused nos.1

to 3 vide seizure memos Exh.P-393/A, P-394/A and

P-395/A. His evidence has not been shaken in the

cross-examination. I find his evidence natural and

reliable.

Sanction to prosecute accused persons under Explosive Substances Act, 1908.


284 Shri Sambhaji Zende (PW-101) was working as

Collector and District Magistrate of Mumbai Suburban

District at Bandra with effect from January-2003 to

December-2006. It is testified by him that he

received proposal (Ex.P-569 colly) dtd. 9.1.2004

from Assistant Commissioner of Police, Crime Branch,

DCB CID, Mumbai for according sanction under section

7 of Explosive Substances Act, 1908 to prosecute the

accused persons. Copies of the FIR and C.A. reports

were also sent alongwith the above proposal. He

perused the above documents pertaining to DCB CID

C.R.No.157/02 (C.R.No.400/02 of MIDC Police Station)

and DCB CID C.R.No.75/03 (C.R.No.235/03 of Ghatkopar

Police Station) and had discussion with

Investigating officer ACP Shri Walishetty and he was

thereafter convinced that accused persons have

committed an offence under the provisions of

Explosive Substances Act,1908 and therefore he

accorded sanction on 22.1.2004 under section 7 of

Explosive Substances Act,1908 which is at Ex-


P-568(colly).

285 I.O. Shri Walishetty also sent another

proposal (Ex-P-566(colly)) to District Magistrate,

Mumbai City on 9.1.2004 seeking to accord sanction

against the accused persons under section 7 of

Explosive Substances Act, 1908 in connection with

C.R.No.206 of 2003 of Colaba Police Station and

C.R.No.201 of 2003 of L.T.Marg Police Station.

286 It is the evidence of Dr.Pradeep Vyas

(PW-100) that he was working as District

Magistrate, Mumbai City District from 28.8.2002 to

16.5.2005. He received proposal of IO dtd. 9.1.2004

for according sanction to prosecute the accused

persons under the provisions of Explosive Substances

Act,1908. After going through the documents sent

along with the proposal and after having held

discussion with IO ACP Shri Walishetty he was

convinced that case was made out for according


sanction to prosecute the accused persons under

Explosive Substances Act, and he therefore accorded

sanction which is placed on record at

Ex.P-565(colly). In the cross-examination it is

stated by PW-100 that he initially prepared draft

sanction order and thereafter it was corrected by

him and then he prepared final order.

287 Ex.P-565(colly) is the order of sanction to

prosecute the accused persons accorded under section

7 of Explosive Substances Act, 1908 pertaining to

C.R.No.206 of 2003 of Colaba Police Station and

C.R.No.201 of 2003 of L.T.Marg Police Station.

Column No.3 of the sanction order mentions C.R.No.

and registration of the offences under IPC,

Explosive Act 1884, Explosive Substances Act 1908,

Prevention of Damage to Public Property Act 1984 and

POTA, 2002. However, the above sanction order is

silent regarding the penal provisions of Explosive

Substances Act, 1908 under which sanction is


accorded to prosecute the accused persons. Thus

the offences for which prosecution is to be launched

has not been mentioned in the above order therefore

the said order is result of non application of mind

by sanctioning authority and therefore, I hold that

order of sanction Ex.P-565(colly) is not valid and

legal.

288 Order of sanction Ex.P-568(colly) which is

pertaining to C.R.No. 400 of 2002 of MIDC Police

Station and C.R.No.235 of 2003 of Ghatkopar Police

Station is also not free from fault. Sanction order

of Ghatkopar Police Station makes mention that

accused persons are liable to be convicted under

section 5 r/w section 9(B) of Explosive Act, 1884

and under section 3 of Explosive Substances Act,

1908 and therefore sanction under section 7 of

Explosive Substances Act,1908 is accorded. Sanction

Order so far as C.R. of MIDC Police Station is

concerned discloses that accused persons are liable


to be convicted under section 5 of Explosives Act,

1884 and under section 3,4 and 9 of Explosive

substances Act, 1908. It is to be noted that there

are only seven sections in Explosive Substances Act,

1908 and therefore section 9 of Explosive Substances

Act cannot be found in the above Act. Penal

provision Section 9(B) pertaining to the

contravention of the rules made under section 5 of

Explosives Act, 1884 is not mentioned in the order

of sanction. Cumulative effect of the sanction

accorded to the offences registered at MIDC Police

Station and Ghatkopar Police Station lead me to find

that Ex.P-568(colly) is valid and legal so far as

the prosecution of the accused persons under section

5 r/w section 9(B) of Explosives Act, 1884 and under

section 3 and 4 of Explosive Substances Act, 1908.

289 It is mentioned in the order of

sanction Ex.P-565(colly) that as per clause (I) of

Art.258 of Constitution of India, the Govt. of


India Home Department in consultation with the Govt.

of Maharashtra by its notification dtd. 25.11.1980

had delegated power to the Collector and District

Magistrate to act under section 7 of the Explosive

Substances Act, 1908. Therefore the consent given by

the District Magistrate, Mumbai Suburban and Mumbai

City to prosecute the accused persons is a

sufficient consent in terms of sec. 7 of Explosive

Substances Act, 1908.

Sanction accorded by Govt. of Maharashtra under section 50 of the Prevention of Terrorism Act, 2002

290 PW-102 Mr.Prakash Hirlekar was working as

Deputy Secretary, Home Department from

September-2003 till May-2005. According to him he

was authorized to sign the order of the Govt. of

Maharashtra under the Maharashtra Govt. Rules of

Business. He received proposal on 23.1.2004 from


Chief Investigating Officer ACP Shri Walishetty for

according sanction under section 50 of POTA, 2002.

Calender of evidence against 6 arrested accused

and wanted accused persons was also sent alongwith

the proposal. He thereafter called chief

Investigating Officer alongwith the investigation

papers. After going through all the investigating

papers he found evidence against the accused persons

for according sanction. He therefore sent that

proposal to Law & Judiciary Department which was

submitted to the Chief Minster. The Chief Minister

accorded sanction and order to that effect was

received by Home Department on 3.2.2004. On that

basis PW-102 signed the sanction order on 4.2.2004

which is placed on record at Ex.P-573.

291 Advocate Wahab Khan Ld.Counsel for accused

no.1 has submitted that PW-102 gave evidence in

cross-examination that he did not remember whether a

letter was issued by him to IO calling him for


discussion. PW-102 made no noting in his file

regarding the discussion he had with IO Shri

Walishetty. In view of the above it is submitted

that version of PW-102 speaks about non application

of mind. The above argument is not tenable because

it is the evidence of PW-102 that he received

calender of evidence against arrested and wanted

accused persons and thereafter he held discussion

with IO. After finding prima facie case against the

accused persons he sent proposal to Law & Judiciary

Department and it was later on submitted to Chief

Minister. Chief Minister accorded sanction and the

papers were received to the office of PW-102 on

3.2.2004 and on that basis sanction order was signed

by him on 4.2.2004. The cross-examination of

PW-102 shows that there was application of mind on

each and every stage of the inquiry and after

satisfying that there was evidence against the

accused persons sanction was accorded by the

sanctioning authority to prosecute the accused


persons.

292 Next point urged by Adv.Wahab Khan is that

the sanctioning authority i.e Chief Minister of the

State has not been examined by the prosecution and

therefore sanction cannot be said to have been duly

proved. There is no substance in the above point

as PW-102 has made it clear in his evidence that he

is authorized and competent to sign the order of

sanction on behalf of the Govt. under the

Maharashtra Govt. Rules of Business. Section 50 of

POTA 2002 speaks about the previous sanction of

Central Govt. or, as the case may be, the State

Govt. As per the rules of Business of Govt. of

Maharashtra, PW-102 is competent to make signature

on the order of sanction. After making due inquiry

into the proposal and after discussing the facts of

the case with IO the sanctioning authority was

satisfied that case was made out to accord the

sanction. I therefore find no infirmity in the order


of sanction.

293 I have gone through the order of sanction.

All the facts constituting the offecnes registered

at MIDC Police Station (C.R.No.400 of 2002)

Ghatkopar Police Station (C.R.No.235 of 2003),

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

L.T.Marg Police Station (C.R.No.201 of 2003) have

been mentioned in detail in the order of sanction.

The role of arrested and wanted accused persons in

the commission of the offence is also mentioned in

the above order. It is stated in the order that

Govt. of Maharashtra having fully examined the

material placed before it and considering all the

facts prima facie case was made out against the

accused persons and therefore it was necessary in

the interest of Justice that the accused persons

should be prosecuted in the Competent court and

therefore sanction under section 50 of The

Prevention of Terrorism Act, 2002 is accorded to


prosecute the accused persons under section 120-B of

Indian Penal Code r/w section 3,4,5(1) and 20 of the

Prevention of Terrorism Act,2002. After having gone

through the above evidence it is found that the

sanctioning authority perused investigating papers

and by applying mind into all the facts of the case,

sanction was accorded to prosecute the accused

persons. Order of sanction is therefore legal and

valid.

294 Adv.Wahab Khan Ld. Counsel appearing for

accused no.1 raised the point that it is the

prosecution case that conspiracy of doing terrorist

acts in Mumbai was hatched in Dubai in the month of

August-2002. Thus an offence punishable under

section 120-B of IPC was committed by the accused

persons in Dubai and therefore prosecution should

have obtained previous sanction of the Central Govt.

as per section 188 of Cr.P.C. For want of sanction,

court cannot take cognizance of the offence alleged

to have been committed by them. No such previous


sanction is obtained by the prosecution and

therefore court cannot take cognizance of the

offence and on this count accused are entitled to be

acquitted. In support of this submission reliance is

placed upon Ajay Agrawal V/s Union of India AIR 1993

SC Pg.1637 . In the above matter it is held by the

Hon'ble Apex Court that � a conspiracy is continuing

offence and continues to subsist and committed

wherever one of the conspirators does an act or

series of acts. So long as its performance

continues, it is a continuing offence till it is

executed or rescinded or frustrated by choice or

necessity� . This proposition does not in any way

come to the aid of the defence. On the contrary it

strengthens the prosecution case. It is found from

the evidence that conspiracy for doing terrorist act

was hatched in between accused nos.1 to 3 and

deceased Nasir as well as wanted accused persons and

it continued till 25.8.2003 on which the twin blasts

did take place in Mumbai and therefore there is no


question of obtaining sanction of Central Govt. as

provided in section 188 of Cr.P.C.

295 This court has held that part of the

conspiracy of causing bomb blasts in Mumbai was

hatched in the house of Nasir at Dubai in the month

of August-2002 and part of it was hatched in the

house of accused no.1 Hanif at Mumbai and on that

count also the previous sanction of the Central

Govt. as per section 188 of Cr.P.C. is not required.

296 The next point urged by Adv.Wahab Khan is

that prejudice has been caused to the defence as the

court did not permit the accused persons to examine

some witnesses i.e DCP Shri Gulabrao Pol and

Reporters of Print Media. Accused persons wanted to

examine DCP Shri Gulabrao Pol to prove the

confessional statement of one of the accused in POTA

Special Case no.1 of 2003. Court issued summons to

the above witness and the witness remained present


before the court on 4.9.2008. The document which was

to be proved by the defence by examining DCP Shri

Gulabrao Pol was not produced on record and

therefore the witness was discharged. Defence made

no application to call the document which was to be

proved and therefore the fault cannot be found with

the court.

297 For proving the date of arrest of the

accused persons defence wanted to examine

reporters/editors of some of the news papers who

attended the press conference held by Dy.Chief

Minister Mr.Chagan Bhujbal and the Commissioner of

Police Shri R.S. Sharma on the point of date of the

arrest of accused persons. The press cuttings which

were produced on record by the defence have already

been exhibited and on that count court did not find

it proper to summon reporters to prove those press

cuttings. I am therefore of the opinion that no

prejudice has been caused to the defence as accused

themselves have admitted the date of their arrest


before this court when they were produced for

seeking their first police custody remand. There

is thus no substance in the above submission of the

defence.

298 Adv.Wahab Khan further submitted that

evidence of IO Shri Walishetty was recorded by court

in piecemeal manner on 11 dates. It was commenced on

4.2.2007 and was concluded on 23.2.2007. The above

facility was given to IO with a view to get him

opportunity to go through all the investigation

papers. IO did not remember the material dates of

the improvements done in the investigation and

therefore he was allowed by the court to use the

note-sheet (Art-11) prepared by him for giving

evidence copy of which was supplied to defence. Ld.

Defence counsel submitted that court cannot allow

the witness to use the note-sheet in the light of

the mandate of section 172 of Cr.P.C. and 159 of

Evidence Act. In support of the above submission


defence has placed reliance upon Siddharth V/s State

of Bihar (2006) 1 Supreme Court Cases (Cri) 175. In

the said case the entire case diary maintained by

the police was made available to the accused.

Referring to section 172 of Cr.P.C. It is observed

by the Hon'ble Apex Court that the court is

empowered to call for such diaries not to use it as

evidence, but to use it as aid to find out anything

that happened during the investigation of the crime.

The police officer who is conducting the

investigation may come across the series of

information which cannot be divulged to the accused.

He is bound to record such facts in the case diary.

But the entire case diary is made available to the

accused, it may cause serious prejudice to others

and even affect the safety and security of those who

may have given statements to the police. The

confidentiality is always kept in the matter of

criminal investigation and it is not desirable to

make available the entire case diary to the accused.


Thus the above observation of the Hon'ble Supreme

Court made in para 27 of the judgment of the above

cited case does not in any way come to the aid of

the defence.

299 It emerges from the evidence on record that

accused no.1 Hanif, PW-2 Jahid, deceased Nasir and

wanted accused persons got together in the house of

Nasir at Dubai in the month of August-2002 to have a

dinner. After taking dinner all the above persons

discussed that the atrocities on Muslims were

increasing day-by-day in India. Wanted accused

persons spoke to Jahid, Nasir and Hanif that there

was necessity to have a deluge in India and

therefore bomb blasts should be undertaken in the

big cities of India. In the said meeting it was

decided to explode the bombs in crowded places at

Mumbai so as to strike terror in the minds of people

and to take the lives of maximum number of persons

and to cause damage to public and private


properties.

300 Accused no.1 Hanif and Nasir returned to

India from Dubai in the month of September-2002 and

October-2002 respectively. PW-2 Jahid continued to

reside in Dubai. Accused no.2 Ashrat is the

classmate of PW-2 Jahid. When accused no.1 Hanif

came back to India in the month of September-2002 he

was given one letter by PW-2 Jahid directing him to

hand over the same to accused no.2 Ashrat in Mumbai.

Hanif accordingly gave that letter to accused no.2

Ashrat. Thereafter Hanif and Ashrat started meeting

each other frequently in Mumbai. Nasir was residing

at Ghatkopar. He contacted accused Hanif on phone in

the month of October-2002 and thereafter they held

meeting in one hotel at Marol. Later on there used

to be frequent meetings of Hanif, Ashrat and Nasir

in the house of Hanif. Confessions of accused nos.1

to 3 show that accused no.2 Ashrat and Nasir had

been to the house of Hanif and they held meetings in


Hanif's house on 29.11.2002, 2.12.2002, 27.7.2003,

28.7.2003, 16.8.2003, 17.8.2003, 22.8.2003,

24.8.2003 and 25.8.2003. Deceased Nasir and Hanif

had acquired the required skill and training of

preparing bombs and handling the fire arms. All the

three persons prepared bombs on the loft of the

house of Hanif by making use of gelatine sticks and

detonators and the said bomb was placed by Ashrat

and Hanif in the BEST bus of route No.312 at Seepz

Bus Depot on 2.12.2002. That bomb was however not

exploded and it was defused by BDDS Squad. Nasir

thereafter took accused no.3 Fehmida in confidence

and asked her to accompany accused no.2 Ashrat for

placing the bomb in BEST bus of route no.340 at

Andheri on 28.7.2003. Accused no.3 Fehmida

willingly agreed to accompany Ashrat and Ashrat and

Fehmida carried the bomb in a cloth bag and placed

the same in the rear seat of BEST bus No.340 which

was exploded at about 9.10 p.m. on 28.7.2003 at

Karani Lane, near the office of Telephone Exhange,


Ghatkopar resulting into the death of two persons

and causing injuries to near about 60 persons. Nasir

and Ashrat came to the house of Hanif on 29.7.2003

and they discussed that the bomb exploded in BEST

bus of route No.340 was of low intensity. Nasir then

apprised Hanif and Ashrat that the wanted accused

persons expressed their displeasure about the poor

impact of the bomb exploded in BEST bus of route no.

340 and the bomb planted in BEST bus of route No.312

was not exploded. Nasir thereafter declared in the

same meeting that henceforth they would explode the

bombs of great magnitude in crowded places in Mumbai

for causing more damage by using hazardous explosive

substances.

301 Nasir thereafter went to his native at

Hyderabad and came back to Mumbai on 16.8.2003 in a

red colour Maruti Car containing gelatine sticks in

four-five bags. On the night of 16.8.2003 Nasir

stayed in the house of Hanif and on the next day


Ashrat was called there. Nasir on 17.8.2003

disclosed his plan of planting bombs at Zaveri Bazar

near Mumbadevi Temple and at Gateway of India so

that there should be maximum number of casualties

and public and private property in crores of rupees

can be damaged. Again there was meeting of the

above three persons in Hanif's house on 22.8.2003

and in that meeting the date of exploding bombs at

Gateway of India and Zaveri Bazar was fixed as

25.8.2003. A detail plan was chalked out for keeping

the bombs in the dickey of the taxi and parking one

of the taxis on the � pay & park site� in front of

Hotel Taj at Gateway of India and other taxi

containing the bomb was decided to be parked near

Mumbadevi Temple. Accused nos.1 to 3 and Nasir

fixed the places of exploding bombs at Gateway of

India and Zaveri Bazar. Hanif and Nasir used to

apprise PW-2 Jahid regarding the progress made by

them in the accomplishment of their plan.


302 Taxi of PW-15 Shivnarayan Pandey was hired

by Nasir and Hanif for two days i.e on 24.8.2003 and

25.8.2003. Nasir asked Hanif that he himself and his

family members should take the taxi from Andheri to

Gateway of India and park the same at � Pay & Park

lot� in front of Hotel Taj. Accused nos.1 and 3

kept the gray colour airbag containing bomb in the

dickey of the taxi on 25.8.2003 and asked taxi

driver i.e PW-15 Shivnarayan Pandey to take the taxi

at Gateway of India and park the same at above

place. As per the direction of Nasir, Ashrat hired

another taxi and a nylon bag containing bomb was

kept in the dickey of the said vehicle and taxi

driver was asked to park the taxi near Mumbadevi

Temple in Zaveri Bazar. There was no place to park

the taxi near Mumbaidevi Temple and therefore taxi

was parked in a taxi stand in Zaveri Bazar at noon

time on 25.8.2003. Ashrat said the taxi driver that

he would come shortly as he wanted to purchase some

goods and he therefore left the taxi. Soon


thereafter the taxi was blown in the blast in which

36 persons were killed and 138 became injured. 41

vehicles, shops and residential houses were damaged

and the damage was to the extent of Rs.95 lacs. Out

of the four attempts of causing bomb blasts, three

were succeeded and the bomb kept at Seepz Bus Depot

could not be exploded and it was defused by the BDDS

Squad. In the above three bomb blasts 54 persons

were killed and 244 became injured and the property

worth Rs.1,60,00,000/- was damaged. From the above

events it is proved that conspiracy for doing

terrorist acts in Mumbai was partly hatched at Dubai

in the house of Nasir in the month of August-2002

and it was partly hatched in Mumbai in the house of

accused no.1 Hanif where the detail plan was chalked

out and it was executed by accused nos. 1 to 3 and

Nasir.

303 During the course of investigation accused

no.2 Ashrat was initially arrested on 31.8.2003 at


about 20.20 hrs. and in consequence of the

information given by him 30 gelatine sticks, 3 alarm

clocks and 8 detonators came to be seized from his

house situated at Juned Nagar, Juhu Galli,

Andheri(West) at about 22.40hrs vide pancahnama

Ex.P.393A. Ex.P-591 is the C.A.Report of the

analysis of the above seized gelatine sticks and the

result of analysis is that Nitrocellulose,

Nitroglycerine, Ammonium, Nitrate and saw dust were

found on the gelatine sticks.

304 On the basis of the information given by

accused no.2 Ashrat, accused nos. 1 and 3 came to be

arrested on 1.9.2003 at 03.00 hours and 117 gelatine

sticks and other articles i.e soldering machine, 9

alarm clocks, polyester yarn etc. from the house of

accused nos.1 and 3 situated at room No.D-7 Salim

Chawl, Chimatpada vide panchanama Ex.P.394A. Accused

no.1 also possessed room no.14 in the same area and

58 gelatine sticks came to be seized from that room


vide panchanama Ex.P-395A. The seized gelatine

sticks were sent to C.A for analysis. The C.A.

report is that Nitrocellulose, Nitroglycerine,

Ammonium, Nitrate and saw dust were found on the

gelatine sticks. Thus accused nos.1 to 3 was not

having licence to possess the explosive substances.

They were found in unauthorized possession of

hazardous explosive substances and therefore, I hold

them guilty of the offence punishable under section

4(b) of The Prevention to Terrorism Act, 2002.

305 Accused nos.1 to 3 in pursuance of criminal

conspiracy of doing terrorist acts in Mumbai have

planted bomb in BEST bus of route No.340 on

28.7.2003 which was exploded near the office of

Telephone Exchange at Karani Lane, Ghatkopar, Mumbai

at about 9.10 p.m resulting into the death of two

persons and causing injuries to 60 passengers. They

have also planted bombs in motor taxis bearing No.

MH-02 R-2022 and MH-02 R 2007 and exploded those


bombs at Zaveri Bazar and Gateway of India on

25.8.2003 resulting into the death of 52 persons and

184 persons suffered injuries in the above blast.

In all 54 persons were killed and 244 became injured

and property worth Rs.1,60,00,000/- was damaged as a

result of doing terrorist acts by accused nos.1 to 3

in pursuance of the criminal conspiracy hatched by

them. Clause fourthly of section 300 of IPC squarely

apply to this case. I, therefore, hold accused nos.

1 to 3 guilty of the offences punishable under

section 120-B of IPC, 120-B r/w section 302 of IPC,

120-B r/w section 307 of IPC and 120-B r/w 427 of

IPC.

306 Accused nos.1 to 3 in pursuance of the

criminal conspiracy were found in possession of

explosive substances and they have unlawfully and

maliciously caused, by using explosive substances,

an explosion of a nature likely to endanger life or

to cause serious injury to property and thereby they


have committed an offence under section 5 r/w

section 9-B of Explosives Act, 1884 and under

section 3 and 4 of Explosive Substances Act, 1908.

307 Accused nos. 1 to 3 have also conspired to

do terrorist acts and in pursuance of such criminal

conspiracy they did the terrorist acts by exploding

bombs at Ghatkopar in BEST bus of route No.340 on

28.7.2003 and at Zaveri Bazar and Gateway of India

on 25.8.2003 at about 1.00 p.m. killing 54 persons

and causing injuries to 244 persons. Therefore, I

hold them guilty of committing the offences

punishable under section 3(3) and 120-B of IPC r/w.

section 3(2) (a) of The Prevention of Terrorism Act

2002. Since the property worth Rs.1,60,00,000/- has

been damaged in consequence of terrorist acts of

accused nos.1 to 3 therefore, they are held guilty

of the offences under section 3 and 4 of The

Prevention of Damage to Public Property Act, 1984.

I answer the points accordingly.


(M.R. PURANIK) Judge,

27/07/2009. Special Court, Under POTA ACT,2002

Greater Bombay

Judgment is suspended till 4.8.2009 for

hearing the offenders on the question of sentence.



Greater Bombay

Accused no.1 to 3 are asked whether they

wanted to say something on the question of

sentence, but they have declined to make any

submission. I have heard Adv. Wahab Khan and Adv.

Pasbola, learned Counsels for Accused nos. 1 and 3.

Advocate Kunjuraman, learned counsel Appearing for

accused no.2 has declined to make any submission on

the question of sentence. Heard Special PP Mr.

Ujjwal Nikam for the prosecution. Hearing is

adjourned to 06/08/2009 for awarding the sentence.

sd/-




Greater Bombay


PART-II OF THE JUDGMENT

Hearing the Offenders and the Prosecution on the question of sentence

1 Advocate Pasbola, Ld. Counsel

appearing for accused no.3 submits that

case of accused no.3 does not fall under

the caption of � rarest of the rare case� .

He further submits that the balance has to

be struck between aggravating circumstances

and mitigating circumstances. The role of

accused no.3 was not dominant in the matter

of hatching conspiracy and execution

thereof. Therefore this is not the fit

case for awarding capital sentence to

accused no.3 Fehmida.

2 Advocate Pasbola has invited


attention of the Court to paragraphs 248,

249 and 250 of the Judgment in Parliament

Attack Case reported in 2005 Supreme Court

Cases (Cri) 1715. The relevant paragraphs

are as under:

248. We are also not impressed by

the findings of the High court that

by reason of the words � or thing�

occurring in Section 3(1) (as a

part of the clause � does any act or

thing� by using bombs, dynamite or

other explosive substances or

firearms, etc.), the definition

of a terrorist act need not be

restricted to a physical act or

using explosives, etc. The

observation of the High court that

the actions of Afzal in procuring

explosives and chemicals and

� participating in the preparation

of explosives would be action

amounting to doing of a thing using

explosives� , cannot be supported on

any principle of interpretation.

Moreover,it rests on a finding that


the accused Afzal and Shaukat

participated in the preparation of

explosives for which there is no

evidentiary support. Even their

confession (which is now eschewe

form consideration) does not say

that.

249. The net result of the above

discussion is that the conspiracy

to commit terrorist acts attracts

punishment under sub-section (3) of

Section 3. The accused Afzal who is

found to be a party to the

conspiracy is therefore liable to

be punished under that provisions.

Having regard to the nature,

potential and magnitude of the

conspiracy with all the attendant

consequences and the disastrous

events that followed, the maximum

sentence of life imprisonment is

the appropriate punishment to be

given to Mohd. Afzal under Section

3(3) of POTA for conspiring to

commit the terrorist act.

Accordingly, we convict and


sentence him.

250. The conviction under Section

3(2) of POTA is set aside. The

conviction under Section 3(5) of

POTA is also set aside because

there is no evidence that he is a

member of a terrorist gang or a

terrorist organisation, once the

confessional statement is excluded.

Incidentally, we may mention that

even going by the confessional

statement, it is doubtful whether

the membership of a terrorist gang

or organisation is established.

3 Relying upon the above observation

of the Hon'ble Apex Court, it is submitted

by Adv.Pasbola that accused no.3 is found

guilty of being a party to the criminal

conspiracy of causing bomb blasts occurred

in Mumbai from 2.12.2002 till 25.8.2003.

She is therefore convicted under section

120-B r/w section 302 of IPC, 120-B r/w


section 307 of IPC and under section 3(3)

and 4(b) of POTA 2002. It is submitted

that accused No.3 cannot be held guilty of

doing terrorist act by applying section

120-B of IPC as theory of agency is

negatived in Navjyot Sandhu's case and

therefore the capital punishment cannot be

awarded to her.

4 There is hardly any substance in the

above submission. In the present case

accused no.3 is convicted under section

3(3) of POTA 2002 of being a party to the

criminal conspiracy of hatching terrorist

acts in Mumbai. She accompanied accused

no.2 while planting bomb in BEST bus of

route No.340 on 28.7.2003 and also

accompanied her husband accused no.1 for

selecting the place of exploding the bomb

at Gateway of India on 24.8.2003 and


parking the taxi loaded with explosives at

Pay & Park Site in front of Hotel Taj at

Gateway of India on 25.8.2003. She has thus

committed � terrorist act� defined in

section 3(1)(a) of POTA 2002 punishable

under section 3(2)(a) of POTA 2002 and

therefore she is convicted accordingly. She

has also committed an offence punishable

under section 3(3) of POTA and therefore

she is held guilty of being party to the

conspiracy. Paragraph Nos. 248,249 and 250

in Parliament Attack Case therefore cannot

come to any aid to accused no.3.

5 It is further submitted by Advocate

Pasbola that accused no.3 comes from lower

strata of society. She is having two minor

daughters. Her husband is also held guilty

in this case by the court. If accused nos.1

and 3 are awarded capital sentence, then


their children would render orphan.

Accused no.3 is illiterate and pardanaseen

lady who is dominated by her husband. She

did act as per the command of her husband

and she was led in the conspiracy at the

instance of her husband. Thus whatever she

did was as per the direction of her

husband. She is financially dependent upon

accused no.1 who is the only earning member

of her family. Aid of accused no.3 was

taken by co-accused persons for planting

bombs in BEST bus and motor taxi so that

suspicion should not be raised by public.

It is thus submitted that applicant did not

do overt act at her own accord and free

will and therefore she is entitled to get

lesser punishment. The argument to the

above effect is not sustainable because

there is evidence on record to the effect

that accused no.3 on her own accord and


free will had accompanied accused no.2 for

planting bomb in BEST bus of route no.340

and accompanied her husband for exploding

the bomb at Gateway of India which was

planted in motor taxi. She did the above

overt acts knowing fully well the

consequences thereof. Therefore it cannot

be said that she has just acted as per the

dictates of her husband.

6 It is argued by Adv.Pasbola that the

Hon'ble Apex Court in Bachan Singh's case

(1980 SCC (Cri) 580) held that if the

accused acts under duress or domination of

the other persons then that can be a

mitigating circumstance for awarding the

appropriate sentence. Since accused no.3

was led into conspiracy by her husband

therefore she may not be awarded capital

sentence. In support of the above


submission Adv.Pasbola has placed reliance

upon following citations:

i) Bachan Sing V/s State of Punjab 1

980 SCC (Cri) 580

ii) Ediga Anamma V/s State of Andhra

Pradesh 1974 SCC (Cri) 479

iii) Subhash Chander V/s Krishanlal and

Others 2001 SCC (Cri) 735

iv) Mohd. Chaman V/s State (NCT of

Delhi) 2001 SCC (Cri) 278

v) Prakash Dhawal Khairnar (Patil)

V/s State of Maharashtra 2002

Supreme Court Cases (Cri) 281.

7 Advocate Wahab Khan Ld.Counsel

appearing for accused no.1 submits that the

court has discretion in the matter of

imposing sentence. Accused no.1 is 51

yeas old. He is ready to undergo the

imprisonment to the whole of his life and

will not pray for his pre-matured release

on any count and he will also not pray

either for parole or furlough. He is ready


to give undertaking to that effect. If he

is sentenced to imprisonment for whole of

his life, then there would be no question

of his repeating the crime. Accused no.1 is

having clean record. Earlier he was not

arrested in any case. He is Indian citizen

and not a foreign national. Some Pakistnai

Nationals polluted his mind by showing him

CDs of Gujarat atrocities when he was at

Dubai for earning purposes. He was

misguided by Pakistani Nationals. He is in

custody since more than five years and

during the above period there was no

complaint from jail about his misbeaviour.

His conduct during trial was also normal as

he is having faith in the system. Accused

no.1 is having minor daughter who should

not be deprived of leading a dignified

life. Wife of accused no.1 is also held

guilty in the present case. Considering the


circumstances referred above it is

submitted that accused no.1 may not be

awarded death sentence.

8 Advocate Kunjuraman Ld. Counsel

appearing for accused no.2 declined to make

any submission on the question of sentence.

9 Special P.P. Mr.Ujjwal Nikam has

submitted that Court has to record special

reasons for awarding death sentence as per

sub section (3) of section 354 of Cr.P.C.

Special reasons are questions of facts

which vary from case to case. Mode and

manner of committing the offence is

important aspect which needs to be

considered by the court while awarding the

sentence. In the present case accused nos.

1 to 3 and deceased Nasir and wanted

accused persons hatched criminal conspiracy


in the month of August-2002 for doing bomb

blasts in Mumbai City and in pursuance of

the conspiracy they have planted bombs in

BEST buses and motor taxis in Mumbai and

thereby they have killed 54 innocent

persons and injured 244 persons. Accused

persons have exhibited extreme cruel

attitude while planting bombs in BEST buses

and motor taxis. They have shown total

disregard for human life. They have also

enjoyed the act of killing of 54 innocent

persons and therefore the present case is

rarest of rare case which invites the

capital punishment. Accused nos.1 to 3 by

their extreme brutality have crossed the

limit of shamelessness. According to

Special P.P. Mr.Nikam, this is not a case

of killing of 54 persons but it is a

massacre of 54 innocent and undefended

persons by the accused to fulfill the


object of Lashkar-E-Taiba and therefore the

capital punishment is warranted. Special

P.P. Mr.Nikam has pointed out the recitals

in the confessional statement of accused

no.1 Hanif which reads as under:

� bomb blast kar ke Hindustan ko khokhala

kar denge.�

Accused persons thus wanted to wage war

against India by doing bomb blasts in the

crowded places of Prime cities in the

Country. They have planted bombs at

Gateway of India and in Zaveri Bazar with a

view to increase death tall of the innocent

persons so as create panic in the minds of

the people. After watching T.V. news on

the night of 28.7.2003, accused no.1

expressed displeasure saying that

� Ghatkopar ke bam me jyada log maare nahi

gaye� . Accused persons therefore decided

to explode powerful bombs at Mumbadevi and


Gateway of India. The above two spots were

fixed by them after doing survey of various

locations in Mumbai. Accused no.3 Fehmida

accompanied her husband accused no.1 Hanif

on 24.8.2003 for fixing the spot of

planting bomb at Gateway of India and also

accompanied him on the next day while

parking the taxi bearing No.MH-02 R-2007

loaded with explosives at pay and park lot

in front of Hotel Taj at Gateway of India

on 25.8.2003. She also accompanied accused

no.2 Ashrat on 28.7.2003 while planting

bomb in BEST bus of route no. 340 at

Andheri which was exploded at Karani lane,

Ghatkopar at about 21.10 hrs on 28.7.2003.

It is thus submitted by Spl.P.P. Mr.Nikam

that accused nos. 1 to 3 knew consequences

of their acts which were the result of deep

rooted conspiracy hatched by them with the

aid of Pakistani nationals. It would be


therefore mockery of justice if death

sentence is not awarded to the offenders.

10 Spl.P.P. has pressed into service

following citations in support of his

argument.

(a) Machi Singh V/s State of Punjab

(1983) 3 SCC 470

(b) ADV Ram V/s MUKNA And Others 2005

SCC (Cri) 1635

(c) Sevaka Perumal & Another V/s State

of Tamilnadu 1991 SCC (Cri) 724.

(d) Devender Pal Singh V/s State of NCT

of Delhi & Another 2002 SCC (Cri)

978.

(e) State through Superintendent of

Police, CBI/SCI V/s Nalini & Others

1999 CC(Cri) 691

(f) Bachan Singh V/s State of Punjab

1980 SCC (Cri) 580.

The following guidelines emerge from Bachan

Singh's case:-

(i) The extreme penalty of death need


not be inflicted except in gravest cases of

extreme culpability.

(ii) Before opting for the death penalty

the circumstances of the offender also

require to be taken into consideration

along with the circumstances of the crime.

(iii) Life imprisonment is the rule and

death sentence is an exception. Death

sentence must be imposed only when life

imprisonment appears to be an altogether

inadequate punishment having regard to the

relevant circumstances of the crime and

provided, and only provided the option to

impose sentence of imprisonment for life

cannot be conscientiously exercised having

regard to the nature and circumstances of

the crime and all the relevant

circumstance.

(iv) A balance sheet of aggravating and

mitigating circumstances has to be drawn up


and in doing so the mitigating

circumstances have to be accorded full

weightage and a just balance has to be

struck between the aggravating and the

mitigating circumstances before the option

is exercised.

11 In order to apply the above

guidelines following questions may be asked

and answered which are given in Machhi

Singh & Others V/s State of Punjab AIR 1983

Supreme Court 957.

(a) Is there something uncommon about

the crime which renders sentence of

imprisonment for life inadequate and calls

for a death sentence?

(b) Are the circumstances of the crime

such that there is no alternative but to

impose death sentence even after according

maximum weightage to the mitigating


circumstances which speak in favour of the

offender?

12 Special P.P. Mr.Nikam has placed

reliance upon paragraph 59 of the case

Devender Pal Singh V/s State of NCT of

Delhi and Another 2002 SCC (Cri) 978, there

was explosion of bomb in a car on 11.9.1993

and in the said blast 9 persons died and

several persons including the President of

Indian Youth Congress(I) sustained injuries

and several vehicles were also damaged.

The Hon'ble Apex Court observed in

paragraph 59 as under:

� As the factual scenario of the

present case shows, at least nine persons

died, several persons were injured, a

number of vehicles caught fire and were

destroyed on account of the perpetrated

acts. The dastardly acts were diabolic

in conception and cruel in execution.

� Terrorists� who are sometimes described


as � death merchants� have no respect for

human life. Innocent persons lose their

lives because of mindless killing by them.

Any compassion for such persons would

frustrate the purpose of enactment of TADA,

and would amount to misplaced and

unwarranted sympathy. Death sentence is the

most appropriate sentence in the case at

hand, and learned trial Judge has rightly

awarded it� .

13 In a case Sevaka Perumal & Another

V/s State of Tamil Nadu 1991 Supreme Court

Cases (Cri) 724, it is observed by the

Hon'ble Apex Court as under:

� Undue sympathy to impose inadequate

sentence would do more harm to the justice

system to undermine the public

confidence in the efficacy of law, and

society cannot long endure under

serious threats. If the courts do not

protect the injured, the injured would then

resort to private vengeance. It is,

therefore, the duty of every court to award

proper sentence having regard to the nature


of the offence and the manner in

which it was executed or committed etc.�

14 In another case i.e. Adu Ram V/s

Mukna & Others 2005 Supreme Court Cases

(Cri) 1635, it is opined by the Hon'ble

Apex Court that the courts are required to

mould the sentencing system to meet the

challenges. The contagion of lawlessness

who undermine social order and lay it

ruins. Protection of society and stamping

out criminal proclivity must be the object

of law which must be achieved by imposing

appropriate sentences. It is further

observed that sentencing process be stern

where it should be, and tempered with mercy

where it warrants to be. Considering the

facts and circumstances of the case, the

Hon'ble Apex court also observed as under:

� it will be a mockery of justice to

permit these appellants to escape the


extreme penalty of law when faced with

such evidence and such cruel acts. To give

the lesser punishment for the

appellants would be to render the justicing

system of this country suspect. The common

man will lose faith in courts. In such

cases, he understands and appreciates the

language of deterrence more than the

reformative jargon� .

15 In the same judgment the Hon'ble

Apex Court observed in paragraph 16 that

any liberal attitude by imposing meagre

sentences or taking too sympathetic view

merely on account of lapse of time in

respect of such offences will be resultwise

counterproductive in the long run and

against societal interest which needs to be

cared for and strengthened by a string of

deterrence inbuilt in the sentencing

system.

16 I have gone through the rulings


cited by Advocate Pasbola Ld. Counsel for

accused no.3. In a case Prakash Dhawal

Khairnar V/s State of Maharashtra 2002

Supreme Court Cases (Cri) 281, accused had

killed his brother, brother's wife and

children because of frustration, as his

brother was not partitioning the alleged

joint property. The Hon'ble Apex Court

observed that it will be difficult to hold

that it is � rarest of rare case� as

accused was not a menace to the society and

he was not continuing threat to the

society.

17 In other case Ediga Anamma V/s State

of Andhra Pradesh 1974 Supreme Court Cases

(Cri) 479, the accused, the married woman

of 24, was flogged out of her husband's

house by her father-in-law and was living

with her parents along with her only child.


She got entangled with a middle aged

widower, who simultaneously had affairs

with another young woman � the deceased.

With the reckless passion of the jealous

mistress, she killed her opponent as well

as the little baby of the deceased with a

chisel. She also disfigured the face of

the victim which was found burnt.

Considering the facts and circumstances of

this case, the Hon'ble Apex Court dissolved

the death sentence by substituting life

imprisonment observing that accused was

subjected to expulsion from conjugal home

and she was the mother of young boy and

social and personal factors of the accused

were less harsh.

18 In another case Mohd. Chaman V/s

State (NCT of Delhi) 2001 Supreme Court

Cases (Cri) 278, accused was held guilty of


committing the offences under section 376

and 302 of IPC. He was 30 years old who

had committed rape upon a girl aged about

one and half years. In the process of

committing rape injuries inflicted on liver

and other parts of the victim resulted in

her death. The Trial court imposed death

sentence upon the accused but, the Hon'ble

Apex Court observed that appellant cannot

be said to be such a dangerous person that

to spare his life will endanger to

community. Capital sentence imposed against

the accused was set aside.

19 In a case i.e Subhash Chander V/s

Kishan Lal and others 2001 Supreme Court

Cases (Cri) 735, there was enmity between

two families. Members of deceased family

gunned down while they were asleep at

night. Trial Court and High Court held


four accused persons guilty of the offence

under section 302, 307, 148, 450 r/w sec.

149 and 120-B of IPC. Trial Court awarded

death sentence but, the High Court on

general conspectus and consideration of

facts commuted the sentence to life

imprisonment. The Hon'ble Apex court held

� despite having some reservations about

commutation of death sentence to life

imprisonment by High court, discretion

exercised by High Court need not be

interfered with� . In the same case the

Hon'ble Apex Court also observed that when

two views are possible about the quantum of

sentence, a view which favours the grant of

life in comparison with death is generally

accepted. The above four cases cannot be

equated with the facts and circumstances

with the case in hand as the offences in

those cases were committed out of personal


rivalry and for satisfying sexual lust.

20 It is submitted that accused no.3

Fehmida is having a minor child and

therefore she may not be awarded capital

sentence but, the Hon'ble Apex Court in a

case of State through Superintendent of

Police, CBI SIT V/s Nalini & Others

observed that merely because accused no.1

Nalini is a woman and a mother of child who

was born while she was in custody cannot

be the ground not to award the extreme

penalty to her.

21 In the present case accused no.1

Hanif underwent training in Pakistan of

handling fire arms and preparation of

bombs. He used that knowledge and skill

for preparing the bombs and explode the

same in a crowded places at Mumbai on


2.12.2002, 28.7.2003 and 25.8.2003 with the

assistance of his wife accused no.3 and

accused no.2 as well as deceased Nasir.

Only two persons were died in the explosion

of the bomb which took place in BEST bus of

route no.340 of Ghatkopar on 28.7.2003.

Therefore accused persons decided to

explode powerful bombs so as to cause the

death of maximum persons. Deceased Nasir

therefore obtained gelatine sticks from

Hyderabad in 4-5 bags, each bag contained

500 sticks and by the use of those sticks

time bombs were prepared which were

exploded at Zaveri Bazar and Gateway of

India on 25.8.2003. Accused persons have

exhibited extreme brutality in taking lives

of 54 innocent persons and causing injuries

to 244 persons by exploding the bombs.

They did not do the above acts as a result

of emotional outburst but, there act was


well designed and preplanned. They have

shown total disregard for human life by

enjoying the act of killing of innocent

persons. It is therefore rightly submitted

by Special P.P.Mr.Nikam that this is not a

case of killing of 54 persons but, it is a

massacre of 54 innocent persons who were

helpless. Participation of accused no.3 in

causing bomb blast was not the result of

her helplessness on account of dominance of

her husband but it was her well designed

action with free-will. Since the accused

persons are blood- thirsty, therefore there

is no scope for their reformation and re-

habitation. Therefore no mitigating

circumstances are present in this case.

Taking lives of 54 innocent/helpless and

undefended persons and causing injuries to

244 persons and damaging the property worth

Rs.1,60,00,000/- by exploding bombs at


crowded places in Mumbai is a most cruel

act for which sentence of imprisonment for

life would be quite inadequate. After

weighing the aggravating and mitigating

circumstances of the case, I am of the view

that this is the classic example of rarest

of the rare case. The incident of bomb

blasts which resulted in heavy casualties

had shaken the collective conscience of the

society, will only be satisfied if the

capital punishment is awarded to the

offenders. I therefore award death sentence

to accused nos.1 to 3 for their committing

mass murders of 54 innocent persons by

doing terrorist acts in Mumbai. I

therefore proceed to pass the following

order.

O R D E R

1 Accused No.1 Sayyed Mohd. Hanif

Abdul Rahim aged about 47 years, accused


no.2 Ashrat @ Arshad Shafiqu Ahmed Ansari

aged about 33 years and accused no.3

Fehmida w/o Sayyed Mohd. Hanif aged about

45 years are convicted of the offence

punishable under section 120-B of IPC for

hatching criminal conspiracy of causing

bomb blasts in Mumbai and are sentenced to

death and to pay fine of Rs.5,000/- each

failing to which they shall suffer R.I. for

two years.

2 They are convicted of the offence

punishable under section 120-B r/w section

302 of IPC and are sentenced to death and

to pay fine of Rs.5,000/- each failing to

which they shall suffer R.I. for two years.

3 They are also convicted of the

offence punishable under section 120-B of

IPC r/w section 307 of IPC and are


sentenced to imprisonment for life and to

pay fine of Rs.5000/- each and in default

to suffer further R.I. for three years.

4 Accused nos. 1 to 3 are convicted of

the offence punishable under section 120-B

r/w section 427 of IPC and are sentenced to

suffer R.I. for two years.

5 Accused nos.1 to 3 are held guilty

of the offence punishable under section

120-B of IPC r/w section 3 (2) (a) of the

Prevention of Terrorism Act 2002 and are

sentenced to death and to pay fine of Rs.

50,000/- each in default to suffer R.I. for

three years.

6 They are also convicted of the

offence punishable under section 3(3) of

The Prevention of Terrorism Act 2002 and


are sentenced to imprisonment for life and

to pay fine of Rs.5,000/- each in default

to suffer R.I. for two years.

7 They are further convicted of the

offence punishable under section 4(b) of

The Prevention of Terrorism Act 2002 and

are sentenced to imprisonment for life

and to pay fine of Rs.1 lac each and in

default of payment of fine to suffer R.I.

for three years.

8 Accused nos.1 to 3 are convicted of

the offence under section 5 r/w section 9-B

of Explosives Act 1884 and are sentenced

to suffer R.I for two years.

9 They are held guilty of the offence

punishable under section 3 of The

Explosive Substances Act 1908 and are


sentenced to imprisonment for life.

10 They are also held guilty of the

offence punishable under section 4 of The

Explosive Substances Act 1908 and are

sentenced to suffer R.I. for 20 years.

11 Accused Nos. 1 to 3 are convicted of

the offence punishable under section 3 of

The Prevention of Damage to Public Property

Act 1984 and are sentenced to suffer R.I.

for five years and to pay fine of Rs.

1,000/- each and in default of payment of

fine to suffer further R.I for six months.

12 Accused Nos.1 to 3 are convicted of

the offence punishable under section 4 of

The Prevention of Damage to Public Property

Act 1984 and are sentenced to suffer R.I.

for seven years and to pay fine of Rs.


2,000/- each and in default of payment of

fine to suffer further R.I for six months.

13 Accused nos. 1 to 3 are acquitted of

the offences punishable under section 120-B

r/w section 5(1) of The Prevention of

Terrorism Act 2002 and under section 20 of

The Prevention of Terrorism Act 2002.

14 They are also acquitted of the

offences punishable under sections 5 and 6

of The Explosive Substances Act 1908.

15 Substantive sentences shall run

consecutively.

16 Accused nos.1 and 3 are in custody

since 1.9.2003 and accused no.2 is in

custody since 31.8.2003 therefore they are

given benefit of set off as per section 428


of Cr.P.C.

17 Accused nos.1 to 3 who are sentenced

to death, for committing the offences under

sections 120-B, 120-B r/w section 302 of

IPC and under section 120-B r/w section 3

(2) (a) of The Prevention of Terrorism Act

2002, shall each be hanged by the neck till

they are dead.

18 Convicted persons (Accused Nos. 1 to

3) be committed to jail custody as per sub-

section (2) of section 366 of Cr.P.C.

19 Proceedings of the case be submitted

to the Hon'ble High Court as per sub-

section (1) of section 366 of Cr.P.C. for

confirmation of the death sentence.

20 Order regarding the disposal of


seized muddemal property is passed

separately at Annexure � A�

sd/-


Special Court,06/08/2009 Under POTA ACT,2002 Greater Bombay

dbm/ssb


IN THE SPECIAL COURT CONSTITUTED UNDER THE PREVENTION OF TERRORISM ACT, 2002

AT GREATER BOMBAY

PART-I OF THE JUDGMENT

IN

POTA SPECIAL CASE NO. 1 OF 2004

The State of Maharashtra ](At the instance of DCB CID., ]Mumbai, vide C.R.No.157/02, ]75/03, 91/03 and 206/03) ]Complainant.

Versus

Sayyed Mohd. Hanif Abdul ] Rahim and others. ]accused.

Dated: 6 th August, 2009

Pota Spl.Case 1/04


ANNEXURE-A

ORDER REGARDING DISPOSAL OF MUDDEMAL PROPERTY

Following articles of seized muddemal

property be disposed of in the manner shown below

after the expiry of one year.

i) Following articles of Muddemal property be destroyed

Articles No.2, 2/A, 4/A, 9/A, 9/B, 9/C, 10,

12, Art No. 12/A to 12/J, Part of 12/L Wallet

14/A, 14/B, 15 (Colly.), 15/A (colly.), Part of 16

(colly.) 3 visiting cards, identity card, black

colour wallet, 17 (colly), Part of Art No.18

(colly.)(cardboard and label), Part of Art.No.19

(colly.)(cardboard and label), Part of Art No.20

(colly.)(cardboard and label), 21 (colly), 22

(colly), Part of 23 (colly.) (White cardboard and

label), Part of Art No. 24 (colly.) wrapper bearing

label, Art.No.25 (colly), Art.No.26 colly) Art.27


colly. Art.No.30, Art.No.30-A to Art.No.30-C,

Art.No.32, Art.No.32A Art.No.33/A to 33/D wrapper,

label green colour polythene bag & another wrapper,

Art.No.34 Art.No.34-A&B, Art.No.35, Art.No.35-A&B,

Art.No.36. No.36-A&B Art.No.37 and Art.37-A&B

Art.No.38, Art.38-A&B, Art.39 and Art.No.39A to E

Art.No.40, Art.No.40-A&B, Art. No.41,Art. No.41-A&B

Art.No.42, Art. No.42-A&B, Art.No.43, Art.No.43-A&B

Art.No.44(colly), Art.No.44-A&B, Art.47 to Art-65

Part of Art.69 i.e. 2 SIM cards, Art.No.-70-70/A,

70/B, Part of Art.No.71 (colly) two driving

licences, 3 ATM slips, 6 paper chits, one diary &

one black wallet, Art.No.79(colly), twicely marked

article Nos.19, Art.No.20, Art.No.22, Art.No.27,

Art.No.32, Art.NO.35 and Art. No.45.

ii) Following articles be returned to the persons named hereunder.

Article No.1 Regzine packet containing

papers of motor taxi be returned to PW-15

Mr.Shivnarayan Pandey, Art.No.3 Video cassette, Art.


4 (colly) be returned to DCB CID, Mumbai, Art.No 11

and Art. No.11/A be returned to PW-32 Indramani

Upadyay Part of Art. No. 16(colly) i.e one passport,

be returned to Ms. Farheen, daughter

of accused no.1 and 3.

iii) Muddemal Articles to be preserved.

Article No.5 to Art.No.8, Art.No.45, Art.

No.77 and Art. No.78 be preserved till the decision

of Writ Petition No. 2539/2008 and Appeal NO.4 of

2009 filed by State against Accused Batterywala and

Ladduwala.

iv) Following Muddemal property to be confiscated to the Government

Article No.12K, Part of Art. No.12L i.e one

currency note of Rs.10, Part of Art.No.16(colly)i.e

Rs.127, Part of Art. No.71(colly) i.e one note of

Rs.100 and Rs.1182, two passports of accused no.1

Mohd. Hanif and one passport of accused no.3 Fehmida

and one cab badge of accused no.1 be confiscated to


Govt.

v) Following items of Muddemal property besold

in public auction and sale proceeds thereof

be deposited to the Government.

Article No.14(colly), Part of Art.No.18

(colly.) i.e Soldering machine, Part of Art.No.

19(colly) i.e 8 Alarm clocks, Part of Art.No.20

clipper machine, Part of Art.No.23 i.e tightening

machine Part of Art.No.24 i.e one alarm clock, Part

of Art. No.33 i.e one alarm clock and part of

Art.No.69 i.e one Nokia mobile phone.

vi) Article No.13, 13/A/B, 28 (colly), Art.No.

29 (colly), Art No.31 & 31/A/B, Art No.67 and

Article No. 68 be handed over to the office of

Commissioner of Police for disposal according to

law.

sd/- (M.R.PURANIK)

Judge, Special Court, Under POTA Act, 2002, Greater Bombay

06/08/2009

gateway of india bomb blast case pota court mumbai judgement

Documents