Bench: Justice P.Sathasivam and Justice B.S. Chauhan
Appellant: Yakub Abdul Razak Memon
Respondent: The State of Maharashtra, through, CBI, Bombay
Issue
- The present appeal and the appeals related to the matter were filed under Section 19 of the TADA Act, by the appellant and the other accused against the various judgments given by the presiding officers in the matter where the accused were given death sentences in the case of the bomb blast in Bombay in 1993 under the Terrorist and Disruptive Activities (Prevention) Act, 1987.
Facts
• Due to the demolition of Babri Masjid in Ayodhya in 1992, to take revenge a terrorist attack was planned.
• In March 1993, Bombay city witnessed massive bombing at twelve places by the terrorists, and two-hundred and fifty-seven human lives were lost. This attack was the first attack in the world where Research Department Explosive or RDX was used on a very large scale.
• The appellant was convicted and sentenced to death for his involvement in the terrorist attack. The following are the charges under which he was convicted and sentenced to death:
a) Section 3(3) of TADA and Section 120-B of IPC read with the offenses mentioned in the said charge.
b) He was sentenced to RI for life along with a fine of Rs. 1 lakh, in default, to further undergo RI for 2 years under Section 3 (3) of Terrorist Attach and Disruptive Activities (Prevention) Act or TADA.
c) The appellant was sentenced to RI for 10 years along with a fine of Rs. 1 lakh, under Section 5 of TADA.
d) The appellant was sentenced to RI for 14 years along with a fine of Rs. 1 lakh, under Section 6 of TADA.
e) The appellant was also sentenced to RI for 10 years with a fine of Rs. 50,000/- under Sections 3 and 4 read with Section 6 of the Explosive Substances Act, 1908.
• This present appeal was filed by the appellant to the Honorable Supreme Court under section 19 of the TADA Act, against the conviction and the death sentence.
Contentions by the Appellant
• The learned counsel representing the appellant was Mr. Jaspal Singh.
• It was submitted by the appellant's counsel that the impugned judgment is not a "judgment" in terms of Sections 353, 354, 362, and 363 of the Code since reasons for conviction and sentence were not provided to the appellant. In as much as only the 'operative portion' was read out and after hearing the accused the conviction and sentence were imposed, it is not permissible in law. He also submitted that as per the "operative portion", the appellant was convicted and sentenced to death, RI along with a fine for the commission of offenses mentioned in charges. In the absence of the entire judgment in terms of the provisions mentioned, the conviction and sentence imposed on A-1 cannot be sustained.
• The counsel further submitted that prosecution mainly relied on the evidence of Mohammed Usman Jan Khan (PW-2), who turned approver and there is no provision for pardoning an accused and permitting him to become an approver under the TADA Act. He also pointed out that neither under TADA nor under the Code can it be said that PW-2 has been validly pardoned. In any event, according to him, his statement needs to be corroborated and conviction based on his sole testimony cannot be sustained.
• He also submitted that the Special Judge mostly relied on the confessional statements of A-10, A-11, A-46, A-67, and A-97. Among them, except A-97 all the others have retracted their statements. Since the prosecution case rested entirely upon the confessional statements of these accused people and now when they have retracted their statements, hence, the conviction and sentence cannot be sustained.
• The counsel for the appellant further submitted that several recoveries were made by the prosecution on the statement of Md. Hanif (PW-282) and in the absence of strict adherence to the procedure, those recoveries are inadmissible in evidence. He further pointed out that seizure panchnamas were not in accordance with the procedure and, more particularly, Section 27 of the Indian Evidence Act, 1872.
• It was also submitted that all the confessional statements are exculpatory and not inculpatory and keeping this in mind, the entire statements made are not acceptable.
• The counsel also contended that there is nothing to prove that there was a conspiracy among the accused persons pursuant to the demolition of Babri Masjid.
• Finally, the appellant’s counsel also submitted that, in any event, the prosecution failed to pinpoint the specific role of the appellant. The appellant had no idea of the conspiracy and of the bomb blast that took place. Even, the confessional statements cannot be used against the appellant since the same was recorded before the amendment of Section 3(5) of TADA. Considering the entire evidence against him, the prosecution failed to point out any specific role of the appellant, accordingly, the death sentence is not warranted and other sentences are also liable to be set aside.
Contentions by the Respondent
• CBI was the respondent and it was represented by the learned counsel Mr. Gopal Subramanium who was assisted by senior learned counsel Mr. Mukul Gupta and learned counsel Mr. Satyakam.
• The counsel countered all the points made by the appellant's counsel and pointed out the following evidence against the appellant: a) confessional statements made by the co-accused, b) testimonies of prosecution witnesses and c) documentary evidence.
• The Counsel also submitted that it is incorrect to convict the appellant solely based on the evidence of approver and hence pointed out the fact that the prosecution has placed enough material to substantiate conspiracy and the role played by each of the accused and in particular by the appellant in the commission of the offense.
• He further submitted that the confessions made by the other accused are admissible however their alleged retraction of the statements by them cannot be accepted.
• The respondent's counsel also submitted that among all the other accused the appellant who is also the brother of Tiger Memon was in charge of entire financial management, sending persons to Pakistan via Dubai for training in arms and ammunitions, securing air tickets, and travel documents such as passports, visas, etc.
• Lastly, the counsel submitted that there was no flaw in the procedure adopted by the Special Court to deliver the judgment and submitted that there is no merit in the appeal filed by the appellant and prayed for the confirmation of the death sentence.
Judgment
• The Court in this case and other related appeals after a detailed hearing confirmed the death sentence of Yakub Memon and for the others convicted in this matter, their death sentence was commuted to life imprisonment by the Honorable Court.
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