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Received on : 10122010 Registered on: 10122010 Decided on : 18042013 Duration :02Ys 04Ms 08Days. Exh No
IN THE SESSIONS COURT, AT PUNE. (Presided over by N.P.Dhote,Additional Sessions Judge )
SESSIONS CASE NO 771/2010 State of Maharashtra Through A.C.P., Anti Terrorists Squad, (in C.R No.06/2010). .......... Prosecution
Vs. 1] Mirza Himayat Baig @
Ahmed Baig Inayat Mirza @ Hasan. Age: 32 years. R/o. Kamwada Galli,Junna Bazar, Tal.Beed, Dist. Beed. .......... Accused Absconding Accused
1] Ahmed Siddibappa Zarar @ Yasin Bhatkal.
2] Mohsin Choudhary. 3] Riyaz Ismail Shabadri @
Riyaz Bhatkal. 4] Iqbal Ismail Shabadri @
Iqbal Bhatkal. 5] Fayyaz Kagzi @ Zulfikar Fayyaz Ahmed. 6] Sayyad Zabiuddin Sayyad Zakiuddin @ Zabi Ansari.
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APPEARANCESLd. Special P.P Shri Raja Thakare for Prosecution.Ld. Advocate S/s. A Rehman and Kaynat Shaikh for the Accused.
JUDGMENT (Pronounced on 15th& 18thApril, 2013)
1] Pune, which is situated near the Sahyadri hill
ranges, and is the cultural and educational capital of
Maharashtra State and considered to be a peaceful city.
Earlier, it was also called as pensioners paradise. Now, it
has also become the hub of I.T Industries,Pune never knew
that it would be the target of Terror attack. It got shattered
on 13th February, 2010 due to the powerful explosion at the
German Bakery, situated on the North Main Road,
Koregaon Park area. In the said explosion 17 persons lost
their lives and 58 persons sustained severe to minor
injuries. The German Bakery got completely destroyed and
the adjacent shops were also affected. The investigation by
the police revealed that it was the bomb explosion and a
designed terrorist act. After investigation the Police
machinery submitted the Charge Sheet naming the
aforementioned persons as Accused under various sections
of Indian Penal Code, Unlawful Activities (Prevention) Act,
1967 and Explosive Substances Act, 1908.
2] The Prosecution's case unfolded from the Police
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report is as under:
The German Bakery is situated on the main North
Road of Koregaon Park area in Pune. Nearby there is the
Osho Ashram, where number of foreigners come and they
stay there or in the nearby areas. The German Bakery is
frequented by number of locals and foreigners. On
13022010, at about 18.50 hrs. (6.50p.m.) powerful
explosion took place in the German Bakery. Due to the
said explosion 17 persons including some foreigners lost
their lives and several others sustained serious injuries.
The Police reached on the spot of incident and with the
help of public removed the victims to various hospitals for
treatment. The site came to be cordoned. The Manager of
German Bakery lodged the report with the Bandgarden
Police station and vide C.R. No. 83/2010 the offence came
to be registered under various Sections of I.P.C, Explosive
Substances Act,1908 and Unlawful Activities (Prevention)
Act,1967 by the officer of Bandgarden Police station.
Considering the nature of offence and it's gravity, the
Director General of Police Maharashtra, transferred the
investigation to the Anti Terrorist Squad and Mr. Satav, the
Assistant Commissioner of Police, Anti Terrorist Squad,
Pune, took over the investigation and further registered the
C.R No.6/2010 with the Anti Terrorist Squad Police station,
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Kala Chowky, Mumbai. The Spot panchnama was drawn.
The experts from the forensic science laboratory, C.B.I, New
Delhi and Pune visited the site of explosion and collected
the material/articles for testing. The statements of
witnesses were recorded. The splinters which were
removed by the Doctors from the bodies of victims, were
also sent to the forensic science laboratory. The reports
from the forensic science laboratory opined that the
articles collected from the explosion site showed the traces
of cyclonite RDX, a high explosive, ammonium nitrate and
nitrate ions alongwith petroleum hydrocarbon oil. The
CCTV footage were collected from the System of the
German Bakery and hotel 'O', situated next to it, and
viewed by the Police officers and one suspect was seen in
the said CCTV footage entering the German Bakery,
standing on the counter of German Bakery and leaving the
German Bakery. From the said CCTV footage, it was
noticed that while entering the German Bakery the said
suspect was having two haversack bags on his person, one
in front and another at the back and he was wearing cap
and while he was seen going out of the German Bakery he
was having only one haversack bag. The time displayed in
the said CCTV footage showed that the said suspect had
come to the German Bakery shortly before the explosion.
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Police Inspector Mr. Kadam who had worked in the Anti
Terrorist Squad and Crime Branch at Mumbai and was
having experience in the investigation of such cases was
shown the said CCTV footage and on viewing the same, he
confirmed that the suspect was absconding Accused No.1
Yasin Bhatkal. The investigation revealed that the said
explosion was the planned attack to terrorize the public in
general, cause damage to life and property and to harm the
sovereignty of Nation and so, the investigation was focused
in that direction. It was revealed that the absconding
Accused No.5 Fayyaz Kagzi, absconding Accused No.6
Jabiuddin Ansari and the Accused Himayat Baig
(hereinafter referred as the Accused), were old friends and
were residing in Udgir. On 09052006 and thereafter a
huge cache of arms and ammunitions, including 16 AK47
riffles, 3,200 live cartridges, 43 KG RDX and 50 live
grenades alongwith other articles were seized from
Aurangabad and the case was registered in that regard with
the Anti Terrorist Squad Police station, Kala Chowky,
Mumbai vide LAC3/2006 and 21 Accused persons were
arrested and Charge Sheeted in that connection. The
absconding Accused No.5 Fayaz Kagzi and absconding
Accused No.6 Jabbiuddin Ansari are also the wanted
Accused in the said arms haul Case. The Accused also left
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Beed since then. It was revealed that the arrested and
wanted Accused of the said arms haul case were the
members of Banned Organization simi and Pakistan based
terrorist organization LashkarETaiba. In the year 2008,
the members of Banned Organization Indian Mujahiddin
were arrested from Pune, Mumbai and from other locations
across the country, in connection with the explosion cases
happened in Surat,Ahemadabad, Banglore,Hyderabad, New
Delhi etc. and absconding Accused No.1 Yasin Bhatkal,
absconding Accused No.2 Mohsin Choudhari, absconding
Accused No.3 Riyaz Bhatkal and absconding Accused No.4
Iqbal Bhatkal are also the absconding Accused in those
cases. It was revealed that the Accused was in close
association with the arrested and absconding Accused of
the Indian Mujahiddin module before they fled from Pune.
Investigation revealed that the Accused and the wanted
Accused conspired in 2008 and thereafter, both within and
outside India, to cause the explosion for terrorizing the
people, promote enmity between different groups of religion
prejudicial to the maintenance of peace and harmony,
cause harm to the economy of country and exploit the
communal sentiments and for achieving the said object,
received financial help from the inimical elements across
the border. In March 2008, the Accused visited Colombo
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and met absconding Accused No.5 Fayyaz Kagzi and
absconding Accused No.6 Jabbiuddin Ansari, where the
design to cause further terrorist activities was finalized and
pursuant to the said conspiracy, the Accused got training
from the absconding Accused No.5 Fayaz Kagzi and
absconding Accused No.6 Jabbiuddin Ansari, to assemble
explosive device and cause the explosion. The Accused
received financial assistance to purchase the explosive
devices and for carrying out the activities to achieve the
objective. In pursuance to the conspiracy, the Accused
concealed his identity and stayed at Udgir which is remote
and nondescript place in the State of Maharashtra with
assumed names as Yusuf and Hasan and also used the
Bank Account of his friend Rehan for the purpose of
financial transactions. For the purpose of concealing his
identity the Accused also forged the documents such as
election card, card meant for physically handicapped
person etc. The Accused started an Internet Cafe at Udgir
under the name and style 'Global Internet Cafe'. Pursuant
to the conspiracy to cause the terrorist act at the German
Bakery, Koregaon Park, Pune, the absconding Accused No.1
Yasin Bhatkal, absconding Accused No.2 Mohsin
Choudhari, on instructions from absconding Accused No.3
Riyaz Bhatkal and absconding Accused No.4 Iqbal Bhatkal,
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came to Udgir and met the Accused in the last week of
January, 2010 to discuss and finalize the plan of causing
the explosion. On 31stJanuary, 2010 the Accused conducted
the reconnaissance (recce) of the targeted site and tested
the timing of planting the explosive device. In the first week
of February, 2010 the wanted Accused No.1 Yasin Bhatkal
and the absconding Accused No.2 Mohsin Choudhari
again came to Udgir and met the Accused and gave final
touch to the plan of executing the explosion at German
Bakery, Pune. To execute the explosion, the Accused went
to Mumbai and purchased one Nokia 1100 Mobile phone for
using it as a triggering device. To mislead his presence the
Accused kept his mobile phones in Mumbai with one of his
friend. With the help of explosive substance and other
devices, the bomb came to be assembled at the Global
Internet Cafe, Udgir by the absconding Accused No.1 Yasin
Bhatkal, absconding Accused No.2 Mohsin Choudhari and
Accused. The Accused again went to Mumbai and collected
his mobile phones which were kept with one of his friend
and further, to mislead his presence, traveled to
Aurangabad and kept his mobile phones with his friend at
Aurangabad and traveled back at Udgir. Pursuant to the
conspiracy of causing the explosion on 13022010, the
absconding Accused No.1 Yasin Bhatkal and Accused
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carried the explosive device and reached Pune at Pool Gate
stand and from there they came to Pune Railway station
and from there went to the Central Mall in the auto
rickshaw and from there the absconding Accused Yasin
Bhatkal proceeded towards the German Bakery at
approximately about 17.00 hrs (5.00p.m.) and planted the
bomb which was kept in the haversack bag. The said bomb
exploded at 18.50 hrs (6.50p.m.) by triggering, with the
help of mobile alarm.
3] During the investigation, information was
received that the Accused was coming to Pune on
07092010 at Poolgate bus stop and the trap was laid. To
identify him, the team was having his photograph. At about
3.15 p.m. the Accused was seen at the said bus stop and he
was apprehended and brought to the Anti Terrorist Squad
office, Pune and after making inquiry with him he came to
be arrested. His personal search was conducted in
presence of the panchas, in which two mobile handsets,
out of which one was having sim card, pocket book of Urdu
language, election I card, pouch, small piece of paper, three
passport size coloured photographs, cover and piece of ATM
card, some currency notes and one spectacle was found
which came to be seized under the arrestcumseizure
panchnama. During the interrogation, the Accused stated
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that he will show the remaining explosive substance. His
memorandum statement came to be recorded U/s. 27 of
Evidence Act, in presence of panchas and he led the team
comprising police and panchas to a house at Udgir and
removed the explosive substance (RDX), soldering gun,
soldering wire and wire cutter kept inside the Diwan (cot).
The sniffer dog from the bomb detection team gave
indication that the said substance was explosive. The said
articles were seized and sealed under the seizure
panchnama. The friend of Accused made available two
bags, belonging to the Accused to the police which came to
be seized under the panchnama. From the said bags, some
clothes, passport of Accused, sim card and several other
documents were found and they came to be seized. The
passport of Accused was having the stamp showing that
he had traveled from Chennai to Colombo and viceaversa.
The phone call details of the sim cards found in possession
of the Accused were sought from the concerned service
providers. During the course of investigation the Accused
pointed the shop from where the Nokia 1100 mobile phone
was purchased by him and also the place from where the
haversack bag was purchased from Mumbai and the
memorandum panchnama in that regard was prepared.
The statement of various witnesses were recorded. The
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register of Priyanka Travels by whose bus, the Accused
traveled to Mumbai and the register of Alnoor Guest
house, where the Accused had stay put in Mumbai were
seized under the panchnamas in presence of the panchas.
The bank account statement pertaining to the account
used by the Accused was collected from the concerned
Bank. The CCTV footage of the ATM centers from where the
transactions were made by the Accused from the said
account were also collected from the concerned Banks.
Some of the documents seized from the bag of the Accused
were sent to the concerned offices for verification and it
was revealed that they were forged documents and not
issued by the concerned offices. The specimen handwriting
of the Accused was obtained in presence of panchas and
the bank vouchers and the register of Alnoor Guest House
were sent to the handwriting expert for verification and it
was opined that the handwriting was identical. The
samples removed from the explosive substance seized at
the instance of Accused, was sent to the forensic science
laboratory, Pune and the C.A report confirmed that the
said substance was cyclonite (RDX), petroleum
hydrocarbon oil and charcoal and RDX was the high
explosive.
4] As the Investigating officer found that sufficient
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material was available which connects the Accused persons
with the explosion at German Bakery, he obtained the
Sanctions under the Provisions of Unlawful Activities
(Prevention) Act and Explosive Substances Act and
submitted the Charge Sheet against the Accused on 0412
2010 for the offences Punishable U/s. 120(B), 302, 307,
326, 325,324,427, 153A, 467,468,471, 474, 109, 34 of I.P.C.
and U/s10, 13, 16, 18, 20 and 21 of Unlawful Activities
(Prevention) Act, 1967 and U/s 3,4, and 5 of Explosive
Substances Act, 1908. As most of the Sections under which
the Charge Sheet was filed, were exclusively triable by the
Court of Sessions, the Ld. J.M.F.C (A.C.Court, Pune)
committed the case to this Court by order dated 0612
2010. It would not be out of place to mention that since
beginning the Accused is represented by the experienced
Lawyer of his choice and he was duly served with the copy
of Charge Sheet. The Ld.Spl.P.P Shri Raja Thakre
(hereinafter referred to Ld.Spl.P.P), appeared for the
prosecution and the Ld. Advocate Shri A. Rehman assisted
by Ld. Advocate Shri Kaynat Shaikh (hereinafter referred as
defence Advocate) appeared for the Accused. Both of them
were heard on the point of Charge and by detail order dated
02072011 it was held that primafacie case existed against
the Accused to proceed and accordingly, the Charge for the
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offences Punishable U/s. 120(B), 302, 307, 435, 153(A),
465, 467, 468, 474, of the I.P.C, for the offences Punishable
U/s. 10(a)&(b), 13(1)& 13(2), 16(1)(a), 18 and 20 of the
Unlawful Activities (Prevention) Act, 1967 and for the
offences punishable U/s. 3, 4(a)&(b) and 5 of the Explosive
Substances Act, 1908 came to be framed on 16072011,
vide Exh.17. The Charge was read over and explained to the
Accused, to which he pleaded not guilty and claimed to be
tried.
5] After framing of the Charge, the prosecution
submitted the Application at Exh. 20 praying for exhibiting
43 reports from the government scientific experts as per
the provisions of Section 293 of Cr.P.C. The Ld. defence
Advocate submitted the Say vide Exh.21 to this Application
stating that the reports from the forensic science laboratory
mentioned in the Application from Sr. Nos. 4 to 43 may be
exhibited under Section 293 of Cr.P.C. However, the defence
did not admit the reports of forensic science laboratory
mentioned at Sr. Nos. 1,2 and 3 in the said Application.
Under the provisions of Section 293 of Cr.P.C, the document
purporting to be a report under the hand of government
scientific expert, to whom the section applies, may be used
as evidence in any inquiry, trial, or every proceedings
under the Code. As per sub section 4 of the said section
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any Chemical Examiner or Asst. Chemical Examiner to
government is covered U/s. 293 of Cr.P.C. By using the
provisions of said Section, all the reports from the forensic
science laboratory were admitted in evidence and given
exhibit Nos. 22 to 65 with the liberty to the defence to
make appropriate Application under sub section 2 of
Section 293 of Cr.P.C, if they so desire for examining any
such witness, by order dated 30072010. However, the
prosecution itself had examined the forensic Experts as
P.W.75 and P.W.78 who had prepared the C.A. reports
including the C.A. reports, which are not admitted by the
defence.
6] The prosecution submitted the Application at
Exh.66 U/s. 294 of Cr.P.C calling upon the defence to either
admit or deny certain documents such as spot panchnama,
photographs and videography of the scene of offence,
panchnamas in respect of seizure of hard disk of the
computer of hotel 'O' and the video cassettes from the
German Bakery, sketch of the spot prepared by the survey
officer, Inquest and papers regarding cause of death of
victims, panchnama about seizure of clothes of deceased,
panchanamas in respect of seizure of splinters from the
bodies of injured, certificates of injured persons and the
forwarding letters sent to the forensic science laboratory,
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filed by them in support of the case. The say of defence
was called on this Application and defence submitted their
say vide Exh.67 stating that the Inquest mentioned at Sr.
Nos.9 to 25 and forwarding letters addressed to the forensic
science laboratory mentioned at Sr. Nos.89,90,96 to 129
mentioned in the said Application are not denied and they
may be exhibited. Thus, the Inquest panchnamas and the
papers regarding cause of death of the victims came to be
admitted in evidence and marked as Exh.69 to 85 and the
forwarding letters addressed to the forensic science
laboratory Pune were admitted in evidence and marked as
Exh.87 to 104. Later on, on 20032012 the Ld. defence
Advocate admitted the certificates of the injured persons
which are mentioned from Sr. Nos. 34 to 85 in the
Application at Exh.66. Thus, the certificates of the injured
persons mentioned in the said Application at Exh.66 from
Sr. No. 36 to 38, 43 to 50 and 57 to 82 and 85 were
admitted in evidence and marked as Exh.200 to 234. The
Injury certificates mentioned in Exh.66 at Sr. Nos.
34,35,39 to 42,44,45,48,49 51 to 56,60,83 and 84 were
exhibited prior to 20032012, in the evidence of the
Doctors who are examined as P.W.45 to P.W.50 and they
are marked as Exh.168, 171, 172, 173, 174, 175, 176, 183,
184, 189, 192, 193, 194, 197 and 199. Thereafter on
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02062012 the Ld. defence Advocate admitted the
panchnamas pertaining to seizure of splinters removed
from the bodies of injured persons mentioned from Sr. No.
28 to 33 in the Application at Exh.66. Thus, the said
panchnamas in respect of removal of splinters from bodies
of injured persons were admitted in evidence and marked
as Exh.315 to 320. The panchnamas in respect of removal
of splinters from the injured which is mentioned at Sr. No.
27 in Exh.66 is exhibited in the evidence of P.W.72 and
given Exh.314. On 20082011 the Ld. defence Advocate
have admitted the panchnama in respect of the seizure of
clothes of the deceased which are mentioned at Sr. No. 26
in the Application at Exh.66 and so it was admitted in
evidence and marked as Exh.86.
7] On 20032012 the prosecution submitted
another Application U/s. 294 of Cr.P.C at Exh.66A calling
upon the defence to either admit or deny the genuineness
of the injury certificates and it was contended on behalf of
the prosecution that the injury certificates of six injured
were not mentioned in the earlier Application U/s.294 of
Cr.P.C at Exh.66 due to inadvertence and therefore, this
additional Application was submitted. The defence gave
their say on this additional Application stating that the
same may be exhibited and thus, the injury certificates of
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six injured mentioned in the Application at Exh.66A were
admitted in evidence and marked as Exh.235 to 240.
8] The prosecution submitted the Application at
Exh.68 praying for tendering the evidence of the witnesses
who had received the dead bodies, the injured persons who
were present on the spot of incident and sustained injuries,
by way of Affidavit pursuant to the provisions of Section
296 of Cr.P.C. Reply was given by the defence on this
Application vide Exh.105, stating that no names of formal
witnesses was given by the prosecution, whose evidence
they intend to tender by way of affidavit. It was stated that
under sub section 2 of section 296, any witness whose
Affidavits are submitted, can be summoned for examination
if the Application is made by the defence. The prosecution
submitted the names of the formal witnesses whose
Affidavits they were intending to file as the formal
witnesses, vide Exh.111. The Application filed by the
prosecution to file the Affidavits of the formal witnesses
was allowed by order dated 03092011.
9] In the Charge Sheet six more Accused are
named, and they are shown as absconding. The
prosecution submitted the Application at Exh.106 for
permission to record the evidence in absence of the
absconding Accused under the provisions of Section
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299 of Cr.P.C. The reply was filed by the defence vide
Exh.110 opposing the Application of the prosecution for
recording the evidence U/s. 299 of Cr.P.C. According to the
defence, the Magistrate be directed to lead the evidence as
provided under the said section. Undoubtedly, some of the
sections under which the Charge Sheet has been filed are
triable by the Court of Sessions. The provisions of section
299 of Cr.P.C enables the Court competent to try the offence
complained of, in the absence of wanted Accused, if it is
established that the Accused are wanted and there is no
immediate prospect of arresting them and the provisions of
said section also makes it clear that the deposition of
witnesses recorded in the absence of wanted Accused can
be used in evidence against him/them for the offence with
which he/they are charged, if the deponent is dead or
incapable of giving evidence or cannot be found or his
presence cannot be procured without an amount of delay,
expenses or inconvenience. It is the matter of record that
the Ld. Magistrate, before whom the Charge sheet was
submitted, had issued Proclamation against the
absconding Accused persons U/s. 82 of Cr.P.C and issued
the warrants against them. Alongwith the Application at
Exh.106, the Investigating officer submitted his Affidavit
stating that the Proclamation Orders were given effect in
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accordance with the relevant provisions. In such
circumstances, the said Application was allowed by order
dtd. 15102011 by observing that the evidence recorded in
the matter would be U/s. 299 of Cr.P.C as against the
absconding Accused persons.
10] To establish the Charge, the prosecution
tendered the evidence of 103 witnesses out of which the
evidence of prosecution witness Nos.1 to 41 is tendered by
submitting the affidavits, pursuant to the provisions of
Section 296 of Cr.P.C., being the formal witnesses. The
defence was given opportunity to cross examine the
prosecution witnesses. From the formal witnesses the
defence chose to cross examine only 11 witnesses. In the
evidence, number of documents are brought on record by
the prosecution including the electronic record.
11] During the course of trial, the prosecution
submitted the Application U/s. 294 of Cr.P.C at Exh.385,
calling upon the defence either to admit or deny the
Sanction orders. The say of defence was called on the said
Application and on submission of the Ld. Spl.P.P that the
recitals in the Sanction orders will not be construed as the
admission on the part of Accused, the defence gave their
say on the Application itself stating that the same may be
exhibited. Thus, the three Sanction orders are admitted in
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evidence and marked as Exhs.391,392 and 393. Alongwith
the Charge Sheet, the prosecution have submitted the
map/sketch of the spot of incident. On the said
map/sketch itself the defence had given endorsement that
the same may be exhibited and therefore, the same is
admitted in evidence and marked as Exh.260.
12] After the prosecution closed it's evidence by filing
the evidence closure pursis at Exh.427, the incriminating
circumstances were put to the Accused and his statement
came to be recorded under the provisions of Section 313 of
Cr.P.C. The defence did not examine any witness. The matter
was posted for oral arguments of the parties.
13] Ld. Special P.P and Ld. Advocate for the
Accused made their respective oral submissions. Their
contentions will be considered at the appropriate stages.
The sum and substance of the submissions advanced by
the Ld. Spl.P.P is that the prosecution have successfully
proved beyond reasonable doubt the involvement of
Accused in the crime and the Accused failed to rebut the
mandatory presumption under the Unlawful Activities
(Prevention) Act, 1967. On the other hand, it is submitted
by the Ld. Advocate for the Accused that the Charges are
not proved beyond reasonable doubt. Both the sides cited
the rulings in support of their submissions, which will be
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considered and discussed at proper stage. After hearing the
oral submissions I had gone through the material available
on record and following points arise for my determination.
POINTS FINDINGS
1] Whether the prosecution proved that the explosionhad taken place at the German Bakery, Koregaon Park, Pune, on13022010 in between 18.50 hrs.to 19.00 hrs., due to the use ofexplosive substance and 17persons got killed and 58 personssustained injuries due to the saidexplosion? Yes.
2] Whether the prosecutionproved that the said explosionwas a terrorist act? Yes.
3] Whether the death of 17persons mentioned in the chart is homicidal? Yes.
4] Whether there is valid Sanction for the prosecution under the provisions of Unlawful Activities(Prevention) Act,1967 andExplosive Substances Act,1908 ? Yes.
5] Whether the prosecution proved that the AccusedHimayat Baig is one of thecoconspirator in the saidterrorist act and have thereby
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committed the offencePunishable U/s. 120(B) ofI.P.C.? Yes.
6] Whether the prosecution proved that the Accused Himayat Baigis one of the person responsiblefor the homicidal death of 17 persons and for causing theinjuries to 58 persons due to the said explosion andhave therebycommitted the offences Punishable U/s. 302 and 307 of I.P.C. Yes.
7] Whether the prosecution proved that the Accused Himayat Baigaided/abetted/assisted the operationof unlawful association and the unlawful activity, conspired the same,was member of terrorist gang and committed the terrorist act and have thereby committed the offences Punishable U/s.10 (a)&(b), 13(1)&(2), 16(1)(a),18 and 20 of the Unlawful Activities(Prevention) Act, 1967? Yes.
8] Whether the prosecution proved that the Accused Himayat Baig unlawfully and maliciously possessed the explosive substance and conspired to cause and did cause the above referred explosion by the use of explosive substance and have thereby committed the offences Punishable U/s. 3,4 and 5of the Explosive Substances Act,1908 ? Yes.
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9] Whether the prosecution proved that the Accused Himayat Baig committed forgery of valuablesecurity for the purpose of cheatingand have thereby committed the offences Punishable U/s. 465,467and 468 of I.P.C.? No.
10] Whether the prosecution proved that the Accused Himayat Baig possessed the forged documentsintending to use as genuine andhave thereby committed the offencePunishable U/s. 474 of I.P.C? Yes.
11] Whether the prosecution proved that the Accused Himayat Baig committed mischief by explosive substance with intent to causedamage and have thereby committedthe offence Punishable U/s. 435 ofI.P.C.? Yes.
12] Whether the prosecution proved that the Accused Himayat Baig byspoken words promoted enmitybetween different groups on the ground of religion and did the act prejudicial to maintenance of harmony and thereby committed the offencePunishable U/s.153(A) of I.P.C? Yes.13] What order? The Accused is convicted
as per final order.
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R E A S O N S
14] Before adverting to the points, the admissibility
of the electronic record and that of the news item published
in the news paper is considered so as to avoid repetition.
Evidence in the form of Electronic Record and it's admissibility.
15] Since some of the evidence is in the form of
electronic record and the reference of which will be coming
at different stages, it's authenticity and admissibility is
considered before adverting to another point. The
prosecution has filed on record the phone call details of two
sim cards and the recording made by the CCTV cameras at
the German Bakery and hotel 'O' which is situated next to
it and at the ATM Centers in respect of operating the Bank
account by the Accused. The evidence in the form of
electronic record is admissible under section 65(B) of the
Evidence Act. It will have to be seen as to whether the
evidence in the form of electronic record satisfies the
ingredients of the aforesaid provision of Evidence Act.
Electronic record of C.C.T.V. footage of hotel 'O' and German Bakery
16] P.W.43 Sayyad Khwaja Hamja is the witness
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examined by the prosecution in respect of CCTV footage of
hotel 'O' which is situated next to the German Bakery. In
his evidence he deposed that he had done various courses
in Computer and was completely conversant with the
computer system and was working as I T Manager in hotel
'O'. His duty consist of handling software, hardware,
networking and surveillance aspects. He deposed that there
are three cameras installed at the hotel 'O' and the camera
which is installed outside can capture the whole area till
the German Bakery and the system is installed in the
security office in which the data gets automatically stored
till 9 days and he being the IT manager was the incharge of
the same and without his permission no one can go inside
the system. He further deposed that the police had come
to the hotel 'O' in the night of 13022010 and had seized
the hard disk and the clone of hard disk of the system after
viewing the CCTV footage. It has come in his evidence that
it is possible to know as to which picture was captured and
stored on which day and at what time. He further deposed
that as asked by the police, he prepared the copies of the
particular footage in the CD/DVD and gave them to the
police. He further stated that he gave the authentication
report generated through the system, to the police. He
identified the panchnama at Exh.163 as the same
26
panchnama under which the hard disk, CD/DVD of the
relevant footage and the authentication report were seized
by the Police. He also identified Exh.164 (collectively) as the
same system generated report. He identified the article 3
and 3A as the same hard disk and it's clone respectively
and article 4 CD handed over by him to the police. He
deposed that the said CD/DVD was generated from the
system of hotel 'O' and the system was working in perfect
manner and the certificate in that regard is the part and
parcel of Exh.164 (collectively). His evidence shows that the
CDarticle 4 was played and shown to him on the laptop
and he identified the same. It has come in his evidence
that it was highly impossible to tamper with the system
and whatever recording made therein is stored in encrypted
format. This witness was cross examined by the defence. In
cross it is brought that he had not placed on record the
document to show that he was working as the IT Manager
in hotel 'O'. To this, he volunteered that he had given the
copy of visiting card to the police. However, there is no
suggestion that he was not working in hotel 'O'. Further in
the cross examination itself it is brought that since last 3
years he was working in hotel 'O' and it was his 4th year.
Therefore, non submitting the documents about his
working in hotel 'O' is not at all fatal. The authenticated
27
record of the system is brought on record. This witness
denied the suggestion that the hard disk were not that of
hotel 'O' and stated that on the backside of the hard disk it
is mentioned that it was of hotel 'O'. It is further brought by
the defence that the CCTV cameras were not seized. There
is no requirement under the Law that the cameras are
required to be seized for proving the electronic record. What
is relevant is the stored data/recording, of the system. Non
seizure of the CCTV cameras by no stretch of imagination
will render the electronic record inadmissible. The cross
examination is not of that nature which would damage
the evidence of this witness given for the prosecution. Non
recording of the statement of the owner of hotel 'O' is of no
consequences and will not render the authentication of the
electronic record of hotel 'O' invalid. This witness No.43 is
the responsible person of hotel 'O' and in charge of the
surveillance system of that hotel. The necessary ingredients
required to prove the electronic record are established
through this witness and therefore, the electronic record
seized under the aforesaid panchnama pertaining to hotel
'O' is admissible in evidence.
17] Another electronic record is in respect of seizure
of VCR of Panasonic Company(article9), one video cassette
of Panasonic Company (article10) and one remote control
28
of Panasonic company(article11) from the German Bakery
on 14022012 i.e next day of the explosion. The notes of
evidence shows that the seizure panchnama at Exh.242
under which the said articles were seized, is admitted by
the defence. Perusal of the said panchnama shows that the
said articles were seized from the premises of German
Bakery. The notes of evidence show that since the said
panchnama was admitted by the defence, the panch
witness of the said panchnama was not examined. In his
evidence P.W.103 who is the Investigating officer have
deposed in para 12 that, separate clip came to be prepared
of the relevant footage and article 61 CD was the same
having the relevant clippings. As the said articles are not
disputed by the defence, no formal proof is laid by the
prosecution to establish it's authenticity. Thus, the
contents of the said electronic articles are admissible in
evidence.
18] There is more electronic record seized from the
German Bakery in the form of seven video cassettes and
V.C.R. P.W.58 Soorajsingh Bisht in his evidence have
deposed that on 23022010 he was called by the police at
the German Bakery, where Mr. Gopal Gargi, the Manager of
German Bakery and Police officer Mr. Joshi were present
and in his presence the seven video cassettes which are at
29
article 33(collectively) and one VCR which is at article 34
came to be seized from the 3rd floor of the German Bakery
under the panchnama at Exh.269. He stated that the
Manager of German Bakery told the police that in the said
articles the recording of the CCTV camera installed at the
counter of German Bakery was being done. From his
evidence it is seen that the recording at the counter of the
earlier period was recorded in the said seven video
cassettes. It is clear from para 2 of the deposition of this
witness that the articles were brought in sealed condition
and the labels were having the signature of this witness as
the panch. In the cross examination it is affirmed that in
the said cassettes the recording from the counter was
recorded. Nothing is suggested in the cross examination
that the system was tampered or the recording was not
done on regular basis. This witness identified the said
articles while giving evidence. As can be seen from the
cross examination this witness was working in the office
situated in the premises of German Bakery in the capacity
of Manager and therefore, his presence for the said
panchnama is natural. From this evidence it is established
by the prosecution that the aforesaid articles were seized
from the German Bakery.
30
Electronic Record in respect of Phone call details
19] P.W.79 Jeevak Shiradkar is the Nodal officer
working in Vodafone company since March 2010. In his
evidence he deposed that he is the single point of contact
between the Government agencies and Vodafone company
for Maharashtra and Goa. He deposed that all the systems
of their company are computerized and he was having the
control and access to the system of their company and
without the pass word the tampering with the system is not
possible. He deposed that whenever any Government
agency asks for the information, they provide the same by
getting the print outs from the system and providing the
information from the system is the part of his day to day
official work. He further deposed that he received the letter
from Mumbai Anti Terrorist Squad which is at Exh.346,
asking for the information in respect of mobile number
9637597877 and accordingly he supplied the information
by his letter at Exh.347, alongwith the customer
Application form and the enclosure of the form which are at
Exh.348(collectively). He further deposed that the phone
call details alongwith the certificate at Exh.349 (collectively)
of the said mobile number were supplied by him to the Anti
Terrorist Squad. This witness was cross examined by the
defence. Nothing is brought by the defence that the system
31
was not working properly or there was any tampering with
the system or record. The cross is in general terms such as,
dealer of the phone company verifies the information
provided in the customer application form and thereafter
gives the sim card, the customer is required to sign the
Application form before the dealer. The authority of this
witness and the authenticity of the information supplied by
him is not challenged. Through the evidence of this witness
the phone call details of the said mobile number are duly
proved by the prosecution.
20] P.W.81 Baby John is the Nodal officer with the
Tata Tele Services, Mumbai since 2005. He deposed that
his nature of duty is to provide subscriber's details to the
Law enforcing agencies as per licensing agreement of
Government of India and he being the Nodal officer, is
authorized to access the system for providing subscriber's
detail including the call details whenever asked. He
deposed that no person can access the system without his
authority and for access it is necessary to know the user
I D No. and the password of the system. He deposed that
the information is stored in the system on day to day basis
in regular course of action and it is provided by him after
taking the printout from the system. He further deposed
that in October, 2010, vide letter at Exh.354 the Anti
32
Terrorist Squad had asked the information in respect of one
sim card and the required information was provided vide
letter dated 19102010 alongwith the phone call details,
the certificate and the customer Application form alongwith
it's Annexures, which are at Exh. 355(collectively). In cross
examination it has come that the said information was in
respect of the mobile No.8149308626. If the cross
examination is seen, the said call details are referred to
this witness by the defence in respect of some call I D
addressed and nothing is brought to challenge the
information provided by this witness to the Anti Terrorist
Squad. The authenticity of the phone call details and the
information provided by the letter at Exh.355 is not
challenged. Through the evidence of this witness the phone
call details of the mobile No. 8149308626 are duly proved
by the prosecution.
21] Both the aforesaid witnesses examined by the
prosecution in respect of the phone call details are the
responsible persons from the respective service provider
companies. The Phone call details are in such continuity
that no slightest doubt arises about it's authenticity. The
essential requirement to prove the electronic record, are
fulfilled by the prosecution and thus, the aforesaid phone
call details are admissible in evidence.
33
Electronic Record in respect of CCTV footage of the ATM Centers
22] P.W.54 Radheshyam Chiraniya, is the Branch
Manager, State Bank of India, Mehekar and he deposed
that the State Bank of Hyderabad, State Bank of Bikaner
and Jaipur, State Bank Mysore, State Bank of Travencore
and State Bank of Patiyala etc. are the subsidiary banks of
State Bank of India. In his evidence he deposed that in the
year 2010 he was working at Aurangabad as the ATM
Manager and was the incharge of all the ATM centers of
Aurangabad Zone. He deposed that in every ATM Center
the ATM Machine is kept in which the CCTV cameras are
installed and whenever the amount is withdrawn from the
ATM center the entry with regard to the account number,
ATM card number and the amount withdrawn gets
collected in the EJ log and the time and the date of
withdrawal also gets registered. He further deposed that
the person entering the ATM machine gets captured in the
CCTV cameras installed in the ATM center and the control
of the CCTV hard disk is with the respective Branch
Manager and with ATM Manager and since there is
password protection, the hard disk cannot be tampered by
anyone. He further deposed that pursuant to the letter at
Exh.255 sent by the Anti Terrorist Squad, the CCTV footage
34
and the transactions from EJ log of the ATM centers at
Parbhani and Udgir which were under his jurisdiction, were
supplied vide letter at Exh.256. He deposed that the CCTV
footage is taken from the hard disk which is used in day to
day business in the normal course and were taken out by
the authorized officer. In cross examination the omission to
the effect that the procedure of ATM center deposed by him
in the evidence was not mentioned in his police statement
is brought on record. However, the said omission will not
affect the evidence given by this witness about the
authenticity of the electronic record of the ATM Centers
which were seized by the Anti Terrorist Squad. The other
cross examination also do not affect the evidence of this
witness given in the examinationinchief. It is only brought
in the cross examination that it is not the offence if the
ATM card holder allows the use of his ATM card to his
friend or other person.
23] P.W.55 Santosh Jadhav is the ATM Channel
Manager of State Bank of Hyderabad, Aurangabad Zone
since the year 2011 and the incharge of all the ATM
Centers in the said Zone. He also deposed that the CCTV
cameras are installed at ATM centers and the transaction
done through the ATM machines gets registered in the hard
disk of the computer installed in the ATM machine and the
35
person entering the ATM center gets captured in the CCTV
camera and the images also gets stored in the hard disk.
He deposed that the only authorized person is the Branch
Manager and the ATM officer have access to the hard disk
and the transactions get stored in the hard disk in the
routine course of manner and since it is password
protected it cannot be tampered. His evidence further
shows that in October 2010, he supplied the CCTV footage
from the ATM center at Udgir which were copied on the C.D
from the hard disk. He identified the letter at Exh.259
through which the said footage were supplied to the Anti
Terrorist Squad. His evidence shows that he was the
superior officer to the concerned authorized Manager, who
had taken out the CCTV footage from the hard disk. In
cross examination it has come that the C.D of the CCTV
footage was given by the concerned Branch Manager in a
sealed condition. It is again brought in the cross
examination of this witness that the ATM card of a
particular person can be used with the permission of ATM
card holder. Except this, there is nothing in the cross
examination.
24] As can be seen from the aforesaid two witnesses
from the Banks, they are the senior and responsible
officers of the respective banks and their evidence is not
36
affected by the cross examination done by defence. Through
the evidence of these witnesses the authenticity of
electronic record supplied by them in respect of the ATM
centers is proved and thus the said electronic record is
admissible in evidence.
25] From the evidence discussed in respect of the
electronic record, the prosecution have proved the
authenticity of the CCTV footage seized from the hotel 'O'
and the German Bakery, of the phone call details and of
the CCTV footage seized from the concerned Banks in
respect of ATM Centers, as per the provisions of Law and
thus, the said evidence in the form of electronic record is
admissible in evidence.
About admissibility of news item published in the newspaper.
26] One more aspect which falls for consideration
is the evidenciary value of the news item published in the
newspaper, because the news item pertaining to the
German Bakery explosion published in the news paper is
sought to be relied by the defence Advocate. The said news
item appears to have been reported in newspaper dtd 25
052010 and was initially marked as article 31 in the
evidence of P.W.93 (auto rickshaw driver) and thereafter
37
subject to admissibility, it was given Exh.399 in the
evidence of P.W.102 since the same was referred to the
witness by the prosecution. On the point of admissibility of
the news item published in the newspaper, the Ld.Spl.P.P
cited the Judgment of the Honourable Apex Court in the
case of Laxmiraj Shetty and another V/s. State of
Tamilnadu reported in AIR 1988 S.C. 1274 in which the
aspect of admissibility of the news item published in the
newspaper is considered. The relevant para no. 26 is
reproduced here.
“Para 26: It is now well settled that a statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The Accused should have therefore, produced the persons in whose presence the seizure of the stolen money from appellant No. 2's house at Mangalore was effected or examined the press correspondents in proof of the truth of the contents of the news item. The question as to the admissibility of newspaper reports has been dealt with by this Court in Samant N. Balakrishna V/s George Fernandez, 1969 3 SCR 603. (AIR 1969 Sessions Court 1201). There the question arose whether Shri George Fernandez, the successful candidate returned to Parliament from the Bombay South Parliament Constituency had delivered a speech at Shivaji Park attributed to him as reported in the Maratha, a widely circulated Marathi newspaper in Bombay, and it was said “A Newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a secondhand secondary evidence. It is well known
38
that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible.”
27] In the case in hand, none of the party have
examined the Editor of the newspaper in which the said
news item was published. The contents of the newspaper
item are not proved. In view of the above citation the said
news item is the hearsay evidence and therefore, not
admissible and thus the said news item at article 62/ Exh.
399 is kept out of consideration.
AS TO POINT NO.1
28] It would be proper to have a clear picture about
the spot of incident. At Exh. 260 there is the map/sketch
of the spot of incident. There is a main road running East
West and passing from the Koregaon Park area of Pune. On
the Northern side of the road the German Bakery is
situated. Adjacent to the German Bakery towards East
side is hotel 'O'. The road which passes between German
Bakery and hotel 'O' is called as 'A'lane. Adjacent to the
German Bakery towards West side is the wine shop,
thereafter there is a outlet of Cafe Coffee Day and thereafter
39
is the Niranjan Jwellers. The main entry to the German
Bakery is from the Main road and there is one more gate to
the German Bakery from the 'A'lane. The map/sketch of
the spot is reproduced below from Exh. 260 for better
understanding.
This spot is also described by the Spot Panch P.W.44
Jagdish Nimbalkar in his evidence. It is needless to state
that the spot of incident is not in dispute.
29] As already mentioned, the evidence of P.W.1 to
P.W.41 is given by the prosecution by filing their Affidavits,
under the provisions of Section 296 of Cr.P.C., being the
formal witnesses. Only 11 witnesses, out of these formal
witnesses, were cross examined by the defence and
therefore their evidence is discussed in somewhat detail.
30] P.W.4 to P.W.19, P.W.21, P.W.22, P.W.26, P.W.27,
40
P.W.29, P.W.34, to P.W.41 are the witnesses to whom the
defense chose not to cross examine. So, only gist of their
evidence is taken here. All of them were present in the
vicinity of German Bakery at the time of explosion. In their
evidence Affidavits they have stated about the explosion at
the German Bakery on 13022010 in between 6.50p.m. to
7.00p.m. Most of these witnesses are the persons who have
sustained injuries due to the explosion as they had come to
the German Bakery as the customers. They stated in their
Affidavits about sustaining injuries and about their
admissions to the different hospitals for treatment. As
these witnesses were not called by the defence for cross
examination, their evidence went unchallenged.
31] P.W.1 Smita Kharose, is the owner of German
Bakery. In her evidence Affidavit she has stated that on 13
022010 at about 7.15 p.m she was informed by the
Manager of German Bakery about the explosion and she
reached the spot around 8.45 p.m. and noticed that the
German Bakery was virtually destroyed and the injured
and deceased were removed to the hospitals. She stated
that the estimated damage was around Rs. 15 Lakhs. She
was cross examined by the defence. In the cross
examination it has come that in the German Bakery there
was self service facility for the customers and CCTV camera
41
was installed at the counter of German Bakery. It has also
come that the CCTV Camera was installed at the adjacent
hotel 'O'. The timing of functioning of the German Bakery
is stated to be from 8.00 a.m. to 11.00p.m. Being the owner
of the German Bakery, it is but natural that she reached
the spot after learning about the explosion.
32] P.W.2 Dr. Manasi Jadhav is the Doctor having
her Dental Clinic on the first floor of German Bakery. In
her evidence Affidavit she has stated that in the evening of
13022010 at around 7.00 p.m. while she was present in
her Clinic, she heard loud explosion on the ground floor
and noticed that the German Bakery was completely
destroyed and the customers were severely injured. She
stated that she tried to provide help to the victims and soon
the police, ambulance and fire brigade arrived and removed
the injured to different hospitals. In the cross examination
it has come that the timings of Clinic was from 9.00a.m. to
7.00p.m. She denied the suggestion that she was not
present on the spot. Since this witness was running the
Dental Clinic in the same premises her presence on the
spot is natural and there is no room to doubt her evidence.
32] P.W.3 Shankar Kharose is having his business
by name K.P. Forex Pvt. Limited, in the same building
where the German Bakery is situated and his office timings
42
are stated to be 10.00a.m. to 8.00p.m. In his evidence
Affidavit he has stated that on 13022010 while he was
present in his office, he heard a loud explosion around
7.00p.m and due to the impact of explosion the window
pane adjoining to the entrance door as well as glass on his
office counter were shattered. He stated that after he came
out of the office he noticed lot of commotion and there were
several injured persons shouting for help and the plastic
tin shed outside the German Bakery, the counter inside the
German Bakery and other articles were completely
destroyed. He further stated that the people helped the
victims to go to the hospital and the police, fire brigade
and ambulance had also reached and removed the injured
to the hospital. This witness was not called by the defence
for the cross examination. However, his business
establishment being adjacent to the explosion site, his
evidence is discussed in little detail.
33] P.W.20 Koustubh Mhatre, is one of the person
who sustained the injuries in the said explosion at German
Bakery. In his evidence Affidavit he has stated that at
about 6.45p.m. on 13022010, he went to the German
Bakery with his colleagues, to have some snacks and the
explosion took place in which, he himself and his
colleagues suffered injuries and they were admitted in the
43
hospital. He has further stated that on 08092010 he read
in the news that Himayat Baig (arrested Accused) was
arrested in this case. In his cross examination it is re
iterated that the explosion had taken place within the
premises of German Bakery in the open space. He deposed
that he do not remember whether he had seen the
photographs of the suspect in the paper. He denied that he
signed on the ready made Affidavit prepared by the Police
and also denied that he was not present at the German
Bakery at the time of explosion. The Injury certificate of
this witness is admitted by the defence and the same is at
Exh.232. As regards his evidence that he read the news
about arrest of Accused in this case is concerned, the same
would be hearsay in nature. As regards his presence at the
German Bakery, happening of the explosion and his getting
injured is concerned, it is established.
34] P.W.23 Ramesh Panta is the watchman of
German Bakery. In his evidence Affidavit it is stated that
he stays alongwith the other workers in the same building
where German Bakery is situated and in the evening of
13022010 at about 7.15p.m. while he was getting ready for
reporting to duty he heard a loud explosion and noticed
that the entire tin shed of the German Bakery had broken
and several persons were lying in injured condition. He
44
stated that the gas cylinders were intact. In his cross
examination it has come that the belongings of the persons
who entered the German Bakery were not checked and
since many of the customers were the students they used
to carry the bags and there was no occasion to check the
bags. He stated that the police and fire brigade had come to
the spot and fire brigade had put some water. Being the
watchman of German Bakery his presence at the site is
natural.
35] P.W.24 Shrikrishna Thapa is the witness who
was working in the German Bakery as the Cashier at the
relevant time. In his evidence Affidavit he has stated that
on 13022010 at about 6.50p.m while he was leaving the
German Bakery after giving the Accounts of the day, big
explosion and flames had occurred at the German Bakery
and he sustained injury to his person and he was
hospitalized for treatment. He further stated that the
customers were lying in pool of blood and shouting for help
and they were removed to the hospital. In the cross
examination it is confirmed that there was CCTV camera at
the counter of German Bakery and the persons who come
at the counter were captured in the same. The Injury
certificate of this witness is not disputed by the defence
and the same is at Exh.171. In addition to this, the
45
prosecution have also examined the Doctor who treated
this witness and the said medical certificate was exhibited
in the evidence of Doctor.
36] P.W.25 Ramgopal Karki was working as the
Manager at the German Bakery at the relevant time. In his
evidence Affidavit he has stated that on 13022010 when
he was at his sister's house, he received the information
approximately between 6.45p.m. to 7.00p.m. about the
explosion at German Bakery and so in 20 to 25 minutes he
reached the German Bakery and noticed that the Bakery
had completely blown away and the blood and human flesh
was lying on the floor and the police were present. He has
further stated that on inspection, it was seen that the LPG
Cylinders were intact. It has come that one of the employer
of the German Bakery by name Gokul Bardeva died due to
the injuries sustained by the explosion. In cross
examination done by the defence, he denied that the
compound wall of the German Bakery was 6ft. He admitted
that due to compound wall of 3.5fts and metal sheet
erection of 4fts. on the compound wall, it was not possible
to see from outside, the inside part of Bakery. He denied
that the watchman used to check the belongings of the
customers. It is further confirmed that there was CCTV
camera on the counter of German Bakery. He stated that
46
large number of customers used to visit every day in the
German Bakery. His reaching at the spot is quite probable,
being the Manager.
37] P.W.28 Kedar Gibire is the employee of German
Bakery. In his evidence Affidavit he has stated that in the
evening of 13022010 at about 7.00p.m. to 7.15p.m there
was explosion in German Bakery and all the articles were
destroyed and several persons were injured. In his cross
examination he denied that he was not present on the spot
at the relevant time. As the employee of German Bakery his
presence on the spot is obvious.
38] P.W.30 Hanumant Kute, P.W.31 Kailash Mallav
and P.W. 32 Sameer Shaikh are the auto rickshaw drivers.
In their evidence affidavits they have stated that they park
their auto rickshaw at the rickshaw stand next to the
German Bakery and in the evening at about 7.00p.m. on
13022010 there was big explosion at the German Bakery
in which several persons were severely injured and some of
them died. They stated that the hood of their auto rickshaw
got damaged due to the explosion. These witnesses were
cross examined by the defence. The aspect that they were
the rickshaw drivers and used to park their auto rickshaws
next to German Bakery is affirmed in cross examination. It
is denied that the distance between German Bakery and
47
hotel 'O' was 100fts. Though both these witnesses have
stated that it did not occurred to them that they should go
to the Police station, it is not at all fatal for the prosecution.
In the evidence of other witnesses it has come that the
Police had reached on the spot of incident. Their evidence is
worthy of acceptance.
39] P.W.33 Umesh Pongadwale is the salesman
working in the shop by name Quality General Stores which
is situated next to the German Bakery and in his evidence
Affidavit he has stated that the shop remains open from
8.00 a.m. till 11.00 p.m and further stated that on
13022010 at about 7.00p.m when he was present in the
shop, he heard noise of big explosion at the German
Bakery and he saw that the German Bakery was
completely damaged and the customers and employees of
German Bakery were lying seriously injured. He further
stated that the injured were removed to hospitals in the
ambulance. In cross examination it is confirmed that the
shop Quality General Stores was next to the German
Bakery and since there was no fire there was no occasion
for fire brigade to spray the water. He denied that he was
not present in the shop when the incident had occurred.
His presence at the site is quite natural being working in
the shop situated next to German Bakery.
48
40] On evaluation of the evidence of the aforesaid
formal witnesses, their presence in the vicinity of the spot
of incident cannot be doubted. Though suggestion is given
by the defence that they were not present, it is denied.
Even if, the cross examination of the aforesaid witnesses is
accepted as it is, the evidence given by them is not affected
adversely in any manner. Many of the formal witnesses are
the customers who had visited the German Bakery. Though
in cross examination of these formal witnesses it has come
that their statements were recorded after 2 to 4 days from
the incident, that is not fatal for the prosecution for the
reason that the incident is such that the first priority of the
Police machinery is to remove the victims to the hospitals
for providing medical aid and to make secure the spot of
incident for proper investigation. When there are large
number of witnesses, it is humanly impossible to record
their statements immediately and on the same day. If the
tenor of cross examination of the aforesaid formal
witnesses is seen, it becomes clear that the happening of
incident, damage to the property, injuries to victims and
death of some persons is not disputed by the defence.
P.W.3, P.W.23 and P.W.25 have categorically stated in their
evidence Affidavit that the LPG cylinders of German Bakery
were found to be intact. There is no challenge to this aspect
49
from the side of defence and so, it is completely ruled out
that the said explosion was not the result of explosion of
LPG gas cylinders. In his evidence the Investigating officer
who is P.W.103 has also deposed that the gas cylinders of
the German Bakery were found to be intact.
41] P.W.42 Kishor Sinha Pardeshi is the policeman
working in the Crime Branch as the photographer since the
year 2002. It has come in his evidence that his job is to
take the photographs of the spot of crime, dead bodies and
the Accused persons and for that purpose the Police
Commissionerate has provided the cameras and the
photography equipments and the cameras having the
digital memory card are used by them. He stated that
Vishal Mhetre and Anil Mali were the constables to assist
him and in the night of 13022010, after receiving the
information about the explosion at the German Bakery, he
went there and noticed that his colleagues by name Vishal
Mhetre and Borawke had already reached the spot of
incident and they had snapped the photographs and done
the video shooting of the spot. He further stated that he
had gone at the hospitals where he took the photographs of
dead bodies. It has further come in his evidence that the
photographs and the video shooting pertaining to the said
explosion at German Bakery were uploaded in the
50
computer of their office which was working in proper
condition and the C.Ds. of the said photographs and video
shooting were prepared and they were at article 1, 1A, 2
and 2A. His evidence shows that the said C.Ds were played
on the laptop at the time of his evidence and he identified
the photographs and video shooting contained therein as
that of German Bakery explosion. He was cross examined
by the defence. Though it has come that he was not having
any degree in photography it has come that he had
completed the course in photography. Experience shows
that photography is the matter of practice and no formal
education is required to operate the cameras and the video
shooting camera and even a lay man can operate the same
with little practice. Merely because the memory cards of
cameras and the cameras were not produced before the
Court, the same cannot be the reason to discard his
evidence. His not meeting the owner of German Bakery is
not of any consequence. There is no suggestion that the
photographs and the shooting recorded in the
aforementioned CDs were not in connection with the
German Bakery explosion. From the evidence of this
witness it becomes clear that after the explosion the site of
explosion and the victims were captured in the camera and
video.
51
42] P.W.99 Suhas Nadgauda is the Sr.P.I who was
attached to the Bandgarden Police station, Pune at the
relevant time. In his evidence he has stated that on
13022010 at about 7.00p.m. when he was on patrolling
duty, he received the information about the big explosion at
the German Bakery, Koregaon Park, Pune and so he
immediately reached on the spot with his staff and noticed
that there was tremendous chaos and the dead bodies and
injured were lying and the German Bakery was destroyed.
He deposed that the victims were sent to different hospitals
and when the cashier of German Bakery by name Pravin
Pant came to him and started telling the details, he realized
that he was the witness to the incident and he was asked
to immediately reach Bandgarden Police station and he
also reached at the Bandgarden Police station and
recorded his statement and it was clear that serious offence
was committed and so he submitted the report to the
Station House officer for registering the crime and
accordingly C.R No. 83/2010 was registered under various
sections and the entry was made in the station diary.
43] The evidence of this witness shows that the
Complaint cum FIR was pointed to him and he identified
his signature on the same and the signature of Station
House officer and the complaint and FIR are marked as
52
Exh.390 (collectively). From the evidence it is seen that the
defence had objected to exhibit the entire document as the
Complainant was not available and by keeping open the
objection for argument at the time of final hearing it was
exhibited. Admittedly, Pravin Pant who gave the FIR, is not
examined by the prosecution as he is not available.
However, this P.W.99 is the officer who had signed the FIR.
In my considered view non examination of the Complainant
by no means is fatal for the prosecution because it is
settled position under the law, that the purpose of
report/FIR is to set the criminal law in motion and to
contradict the Complainant. Ultimately, the case would
depend upon the evidence led by the prosecution. Thus
non examination of the Complainant is not fatal.
44] It has further come in the evidence of this
witness P.W.99 that he again went to the spot of incident
and formed different teams for the purpose of recording
statements of injured for preparing Inquest panchnamas
and for other purposes and he was also the part of team.
His evidence shows that on 14022010 the investigation of
the case was transferred to the Anti Terrorist Squad and
thereafter also he was the part of the investigation team.
His evidence shows that he recorded the statement of P.W.1
who is the owner of the German Bakery and seized the
53
clothes of Nine deceased persons under the panchnama at
Exh.86. He has further stated that the experts from the
forensic science laboratory had come on the spot of
incident and collected the articles for examination. It has
also come in his evidence that the blood samples of the
injured and the deceased, splinters found in their bodies
and skins were collected and sent to the Chemical
Laboratory for examination. He was cross examined by
the defence. Nothing material is brought by the defence to
discard the evidence. The suggestions that no articles were
collected from the spot of incident, no blood samples and
splinters were collected and not carrying out the
investigation are denied. It has come that the statement of
this witness was recorded after Nine months. This witness
have explained the delay by stating that as he was the part
of investigation his statement was recorded after he did his
investigation. He stated that fire brigade had not sprinkled
water on the spot of incident. The evidence of this witness
clearly go to establish that immediately after the explosion
he reached the spot of incident and arranged for sending
the victims to the different hospitals, cordoned the spot
and recorded the FIR.
45] The prosecution has brought on record the
medical evidence to prove the injuries suffered by the
54
victims in the said explosion. As already mentioned, all the
injury certificates are admitted by the defence. Since some
of the injury certificates were not admitted at the first
instance, the prosecution had examined five Doctors who
treated the injured persons. Though the injury certificates
are admitted by the defence, it would not be out of place to
discuss the medical evidence available on record.
46] P.W.45 Dr. Lohokare, is the consultant General
Surgeon attached to the Inlac and Budhrani Hospital,
Koregaon Park, Pune. In his evidence it has come that on
13022010 about 13 to 14 patients, injured due to
explosion at the German Bakery were brought for
treatment in the said hospital. According to this witness he
examined patient Vikas Shigwan who was brought at about
23.11 hrs. on 13022010 and he gave the history of
explosion injury at the German Bakery. He described the
injuries present on the person of said patient and stated
that the injury was caused due to Bomb explosion and
endangering to life. The injury certificate of the said patient
at Exh.169 is identified by this witness. In cross
examination it is stated that the injury of the said patient
was not dangerous for his life and there is no procedure to
know that the particular injury is caused only by Bomb
explosion.
55
47] P.W.46 Dr. Saxena is the Consultant plastic
Surgeon attached to the Inlac Budhrani Hospital, Koregaon
Park, Pune. He stated that certain patients who were
injured in the Bomb explosion at German Bakery were
brought to the hospital and he had occasion to examine the
patients by name Krishna Thapa, Santosh Chandwani,
Sumeet Singh, Amrapali Chavan, Vineeta Pathak, and Mrs.
Waltrawo K. He deposed that the said patients were
brought in the hospital on 13022010 in the evening at
different times and they were given treatment. In his
evidence he described the injuries found on the said
patients and stated that the injuries were possible by
Bomb explosion. He identified the injury certificates at
Exh.171 to 176 as of those patients. In cross examination
he has stated that all the details are not mentioned in the
injury certificates and volunteered that the nature of
injuries is very much given in the certificates. In the re
examination this witness stated that the injury certificates
give only the gist of the injuries and the details about the
same are given in the medical papers.
48] P.W.47 Dr. Shinde is the Surgeon and founder
Director of Surya Hospital, Pune. In his evidence he
deposed that two patients by name Uplaksh Tiwari and
Saqr Albadani, who were injured in the Bomb explosion at
56
German Bakery Koregaon Park, Pune were brought to the
hospital on 13022010 at about to 9.00p.m. and 8.30p.m.
respectively and they were examined and given treatment.
In his evidence he described the injuries suffered by the
said patients and stated that they were possible due to
Bomb explosion and were of serious nature. He identified
the injury certificate at Exh.181 and medical papers at Exh.
181A and 181B as that of the said patients. In the cross
examination he stated that though the certificate was not
signed by him, it was issued as per his instructions and
the required details are given.
49] P.W.88 Dr. Balkrishna Agrawal, is the Surgeon
attached to Amit Hospital, Yerwada, Pune. In his evidence
he stated that patient by name Miss. Hiteshi Kamboj and
Kiran Jadhav were brought on 13022010 at 8.00p.m and
7.30p.m. respectively to the hospital for multiple injuries
suffered due to Bomb explosion at German Bakery. He
described the injuries suffered by them and treatment
given to them. He deposed that the injury suffered by Miss.
Kamboj was grievous in nature and the injury suffered by
Kiran Jadhav was simple in nature and possible due to
Bomb explosion. He identified the medical certificates at
Exh.183 and 184 and the medical papers at Exhs.183A
and 184A as that of the said patients. In cross examination
57
he stated that there is no rule to determine that the injury
is caused due to Bomb explosion.
50] P.W.49 Dr. Chetan Puram, is the Orthopedic
Surgeon attached to Sancheti Hospital, Pune. In his
evidence he stated that on 13022010 between 9.30p.m. to
10.00p.m. persons by name Mushtaq Ahemad and Kanaji
Sherkhane were brought to the hospital for injuries
suffered due to the Bomb explosion at German Bakery. He
stated about the treatment given to them and described
the injuries found on their persons and stated that the
injuries were possible due to Bomb explosion. He identified
the injury certificates at Exh.186 and 187 and the medical
papers at Exh.187A as that of the said patients. In cross
examination he stated that the injury to the Tibia Fibula
may cause due to fall.
51] P.W.50 Dr. Pravin Survase, is the Surgery
resident of Sassoon General hospital, Pune. In his evidence
he stated that on 13022010 in between 7.50p.m. to
10.13p.m. the patients by name Bharat Agrawal, Kantilal
Zala, Paras Reemal, Rushabh Agrawal, Sunanda Naik,
Vidya Nayak, Uday Karemvadi and Nagrajan Reddi were
brought to the hospital for injuries sustained in the Bomb
explosion at the German Bakery. He deposed about the
treatment given to the said patients and described the
58
injuries present on their persons. He further deposed that
the injuries were consistent with the explosion injuries. He
identified the Injury certificates at Exh.189 to 198 as that
of the said patients. In cross examination he deposed that
the opinion given by him was not mentioned in the medical
certificates and the medical papers. He denied the
suggestion that none of the patient have suffered the
explosion injuries.
52] Though the aforesaid five Doctor witnesses were
cross examined by the Ld. defence Advocate, the evidence
given by them in respect of sustaining the injuries by the
said patients due to explosion and giving the treatment to
them and issuing the medical certificates is not affected.
The evidence of these Doctors show that while giving
evidence they had brought the original medical papers of
their respective hospitals. It is needless to state that the
treatment given to the patients is not to be reproduced in
the injury certificate and only the injuries are to be
mentioned nor there is any such requirement under the
Law. The medical evidence shows that the injuries to the
victims were caused due to the foreign bodies/projectiles
which got blown due to the explosion. It is crystal clear
from the evidence of these Doctors that all the said
patients were admitted in the evening of 13022010
59
after the time when the explosion had taken place and the
history given was that of injuries due to Bomb explosion
and therefore, by no stretch of imagination it can be said
that the injuries were not caused due to the explosion. The
injuries on some of the patients are simple and the injuries
on some of the patients are grievous. Though it is brought
on record in the cross examination of the Doctors that
there is no rule to determine the injury as the Bomb blast
injury all the patients were brought from the German
Bakery where the explosion had taken place. Though these
Doctor witnesses were cross examined by the Ld. defence
Advocate the injury certificates of said patients were
admitted subsequently by the defence. So, ultimately no
dispute remains about the same. The name of injured,
cause of injury and the exhibit numbers of the Injury
certificate are given below in tabular form. Some of the
injured persons are the witnesses who had given their
evidence Affidavits.
Sr No
Name of injured Cause of injury Exh. Nos.
1 Vikas Shigwan (P.W.22) Blast 169 &169A
2 Krishna Thapa (P.W.24) Blast 71& 171A
3 SantoshChandwani (P.W.12) Blast 172 & 172A
4 Sumit Singh (P.W.40) Blast 173 & 173A
5 Ms. Amrapali Chavan (P.W.21) Blast 174 & 174A
6 Miss.Vineeta Pathak (P.W.39) Blast 175, 175A &
60
240
7 Mrs. Waltrawo K (P.W.41) Blast 176 & 176A
8 Saqr Albadani (P.W.35) Blast 181 & 181B
9 Uplakshya Tiwari (P.W.38) Blast 181 & 181A
10 Miss. Hiteshi Kamboj Blast 183 & 183A
11 Kiran Jadhav (P.W.6) Blast 184 & 184A
12 Mushtaq Ahemad (P.W.29) 186
13 Tanaji Sherkhane (P.W.7) Blast 187 & 187A
14 Bharat Agrawal (P.W.34) Blast 189
15 Kantilal Zala Blast 190 & 202
16 Paras Reemal Blast 191 & 203
17 Rushabh Agrawal 192
18 Sunanda Naik (P.W.8) Blast 193
19 Vidya Nayak (P.W.9) 194
20 Uday Karanwade Blast 195
21 Nagrajan Reddi Blast 196 & 204
22 Ash Erig Ejrali Blast 197
23 Faraz Zalnani Blast 198
24 Chek Wang Blast 199 & 205
25 Bharat Turkia Blast 200
26 Uday Kedambadi (P.W.14) Blast 201
27 Razavi Alireza Blast 205A
28 Lazarus Ashley (P.W.15) Blast 206
29 Vikas Gaurav Blast 207
30 Deepak Bajaj Blast 208
31 Reeta Anap Blast 210 & 211
32 Borna Kananiya Blast 212 & 213
33 Chinmay Jokhla (P.W.18) Blast 214
34 Snehal Dudhabade (P.W.17) Blast 215
35 Smruti Batta (P.W.19) Blast 216
36 Ekta Lulla (P.W.11) Blast 217
61
37 Neeraj Lulla (P.W.10) Blast 218
38 Kunal Bhalla Blast 219
39 Rehmani Jaffar Blast 220
40 Ramesh Satyamurthy Blast 221
41 Shivangi Tyagi Blast 222
42 Natrajan Balsubramanyam(P.W.4)
Blast 223
43 Aditya Anilkumar Blast 224
44 Arinjay Jain (P.W.13) 225
45 Aftab Hussain 226
46 Arun Maddy 227
47 Ajaysingh Thakur (P.W.37) Blast 228
48 Silvester Cordorio (P.W.5) Blast 229
49 Hemant Kapoor Blast 230
50 Jay Budhdha Dev (P.W.16) Blast 231
51 Kaustubh Mhatre (P.W.20) Blast 232
52 Miss.Pratyusha Sarkar(P.W.26) Blast 233
53 Shashank Nagar Blast 234
54 Anap Ganpat 235
55 Anas Sluman Blast 236
56 Vikas Tulsiyani Blast 237
57 Aditya Mehta Blast 238
58 Raju Agrawal Blast 239
With the material on record, the prosecution have clearly
established that the persons mentioned in the aforesaid
chart were injured in the explosion which occurred at
German Bakery, Koregaon Park Pune, on 13022010.
53] The prosecution submitted the Inquest,
Postmortem reports and other related papers in respect of
62
the persons died due to said explosion. As already
mentioned, the defence admitted the genuineness of the
said documents and therefore, they were admitted in
evidence and exhibited. It is needless to state that the facts
admitted need not be proved. Perusal of the said
documents clearly go to show that the victims named in
these documents died due to injuries suffered in the
explosion occurred at the German Bakery. These are the
documents prepared at the relevant time in ordinary
course of nature. The cause of death of the victims
mentioned in these documents is stated below in tabular
form which gives the name of deceased,cause of death and
Exhibit numbers of relevant papers.
Sr No Name of the deceased Cause of death Exhs
1 Ankit Kamlendudhar Hemorrhage & Shock due to explosion Injury
69
2 Kum.Shilpa Goyanka Explosion injury 70
3 Kum.Vinita Gadani Explosion injury 71
4 Kum. Sinduli Piduri Hemorrhage and Shock due to explosion Injury
72
5 Kum.Anandi Dhar Hemorrhage and Shock due to explosion Injury
73
6 Shankar Pansare Hemorrhage and Shock due to punctured Injury over chest
74
7 Vikas Tulsiyani Complication following explosion injuries.
75
8 Anas Suliman(Foreigner)
Septicemia due to explosion injuries
76
9 Kum. Aditi Jindal Complications following explosion injuries
77
63
10 Atul Anap Complications following explosion injuries.
78
11 Amjad Elgo Ahmed(Foreigner)
Multiple burn injuries due to explosion
79
12 Aditya Mehta Complications following explosion injuries.
80
13 Abhishek Saxena Complications following explosion injuries.
81
14 Gokul Nepali Explosion injuries. 82
15 Ms. Nadia Macerini Explosion injuries. 83
16 Sayeed Abdol Khani(Foreigner)
Hemorrhage and Shock due to explosion Injury
84
17 Raju Agarwal Complications following explosion injuries
85
From the above material on record it is unerringly
established by the prosecution that 17 persons died due to
the injuries suffered from the explosion at German Bakery.
54] P.W.72 Santosh Bhore is the panch witness for
the panchnama in respect of seizure of the splinters
removed from the body of injured persons. In his evidence
he stated that on 14022010 at about 3.30p.m. he was
called by the police at the Sancheti Hospital, Pune in
respect of the panchnama for splinters and the Doctor from
the hospital shown one bottle on which the name of the
patient was written and it was having eight splinters and it
was seized by the police under the panchnama at Exh.314.
This witness identified his signature on the said
panchnama and also identified the bottle at article 45 as
64
the same. In cross examination it has come that he was
present in the Sancheti Hospital with his relative patient
and the name of the Doctor was Tembhurne. This shows
that he is the natural witness. He stated that he had not
seen removing the splinters from the body of patients. It is
common experience that no stranger or outsider is allowed
by the Doctors while doing the procedures on the patient
and therefore, his not seeing the act of removing the
splinters from the body of patients will not discard his
testimony. The other panchnamas in respect of seizure of
splinters are admitted by the defence and they are at Exh.
315 to 320. The articles Nos. 46 to 51 are the articles which
were seized under the admitted panchnamas. The evidence
of seizure of splinters from the injured is also corroborated
by the evidence of P.W.99 who is the police officer of the
Bandgarden Police station where the offence was registered
as can be seen from Para 6 of his evidence. Thus, the
evidence on record establishes that the splinters were
removed from the patient's body and they were taken
charge of by the police.
55] P.W.44 Jagdish Nimbalkar is the witness in
whose presence the Spot panchnama was drawn. He is the
Government officer working as Tahsildar. In his evidence he
has stated that he was called by the police at the German
65
Bakery, Koregaon Park, Pune in the morning at 8.00a.m.
on 14022010 for the purpose of preparing the Spot
panchnama and another panch Suhas Soma was also
present there. In his evidence this P.W.44 have described
the spot of incident in great detail which gives the actual
scenario at the spot after the explosion. He stated that the
counter, the shed had fallen down and broken, the
furniture in the premises of German Bakery was broken,
pieces of human bodies and flesh were scattered, the
compound wall was cracked, there was one hole on the
East side wall and there was big pit adjacent to the said
wall of German Bakery, the leather boutique was in broken
condition, the articles of nearby shops were damaged, the
sign board of hotel 'O' was half broken and the glass on the
second floor of the hotel 'O' was cracked. He also deposed
that the persons from the forensic science laboratory had
collected the samples from the spot. The Spot panchnama
at Exh.166 is identified by this witness as the same which
was drawn in his presence. In his evidence he also
identified the articles which are at number 6(collectively),
7(collectively) and 8(collectively), which consist of tin pieces,
pieces of mobile phones, chargers, batteries, pieces of tiles,
metallic parts, pieces of burned clothes, watches, C.Ds etc.
as the same articles which were collected from the spot
66
under the aforesaid spot panchnama in his presence. His
evidence further go to show that the article 1 and 2 which
are the CDs having the pictures of the spot of incident,
which are brought on record in the evidence of P.W.42
(police photographer), were played on the laptop and shown
to him and he deposed that the pictures and video shooting
was that of the spot of incident. He has categorically stated
that the spot of incident was protected by cordoning the
area. Cross examination of this witness shows that major
part of the cross examination is in the nature of
suggestions which are denied by him. He denied that he
acted as the panch on several occasions. This witness
being the Tahsildar, by no means can be said to be under
the influence of police machinery. Nothing is brought in the
cross examination to doubt the evidence of this witness.
The evidence of this witness corroborates the prosecution
case that explosion had taken place at German Bakery in
which there was destruction of property and loss of human
life.
56] P.W.103 Vinod Satav is the witness who was
working as the Asst. Commissioner of Police in the Anti
Terrorist Squad, Pune and who investigated this case. In
his evidence he deposed that after receiving the information
about the explosion at the German Bakery, Koregaon Park,
67
Pune on 13022010 he rushed to the spot of incident with
the staff and P.W.99 was already present with the staff. He
stated that the injured and the dead were sent to different
hospitals. He deposed about the condition of the spot. It
has come in his evidence that on the directions of the
Director General of Police the investigation was handed
over to the Anti Terrorist Squad by the order dated
13022010 which is at Exh.408. He identified the
endorsement and signature on the said order in respect of
receiving the same. He further deposed that after taking
over the investigation he registered the offence with the Anti
Terrorist Squad, Kala Chowky office, Mumbai and sent the
copy of complaint to the Special Court and identified the
report at Exh.409 as the same by which the copy of
complaint was sent. He further deposed about conducting
the Spot panchnama, coming of experts from the forensic
science laboratory and collecting the articles from the spot
for examination, taking in custody the CDs at article 1 and
1A in respect of the photographs and shooting of the spot.
He also deposed that the samples collected from the spot of
incident were sent to the forensic science laboratory for
examination. In his evidence he has stated that the fire
brigade department have submitted the report at Exh.424
stating that no fire had taken place on the spot of incident.
68
In cross examination there is nothing to discard the
evidence of P.W.103 that explosion had taken place at the
German Bakery and he had gone on the spot of incident.
He denied that the fire brigade sprinkled the water on the
spot before he reached. The cross examination of this
witness done in connection with other aspects would be
dealt with at relevant stages.
57] If the cross examination done by the defence of
the formal witnesses and the aforementioned witnesses is
seen, it appears that they wanted to show that the fire
brigade had sprinkled the water on the spot of incident.
Coming of the fire brigade on the spot where such incident
happens is not unnatural because it is one of the essential
services. The report of the fire brigade department is
prepared in the regular course of it's duty and it nowhere
shows that the water was sprinkled within the premises of
German Bakery where the actual explosion had taken
place. It shows that water was used only for cleaning the
road. Even the witnesses have denied that water was
sprinkled in the German Bakery premises. Only in the
evidence of P.W.23 it has come that fire brigade had put
some water. If that statement of P.W.23 is read in the light
of the aforesaid report of fire brigade, the only inference
which comes out is that the water was put on the road only
69
and not in the premises of German Bakery. In any case, it
will not affect the prosecution case in any manner.
58] P.W.91 Balasaheb Barguje is the Police Naik of
the Anti Terrorist Squad who carried the seven sealed
packets to Delhi for giving it to the forensic science
laboratory. In his evidence he identified Exh.374 as the
written directions given to him by P.W.103, Investigating
officer in that regard. His evidence shows that after
submitting the packets he gave the report at Exh.375 and
thereafter on 07042010 he had again gone to Delhi to
collect the report from the forensic science laboratory and
submitted the compliance report at Exh.329. This evidence
is not challenged by the defence.
59] There is forensic evidence brought on record by
the prosecution to show that the explosives were used to
cause the explosion. P.W.75 N.B. Bardhan is the Principal
Scientific officer at the Central forensic science laboratory,
C.B.I, New Delhi and P.W.78 Ravindra Kulkarni is the Asst.
Chemical Analyzer in forensic science laboratory, Pune.
Their evidence goes to show that they had received the
articles/samples in connection with the German Bakery
Bomb explosion in Sealed condition and they examined
the said articles/samples and prepared the reports in that
regard.
70
60] P.W.75 identified the C.A report at Exh.23 as the
same which was prepared by him in respect of the
articles/samples which were collected from the spot of
incident and deposed that the physio, chemical and
instrumental examination confirmed the presence of RDX,
ammonium nitrate and oil in the articles/samples. The C.A
report at Exh.23 corroborates his evidence. He identified
the letter at Exh.330 as the letter by which the articles
/samples were received by the laboratory. Perusal of the
letter at Exh.330 and the C.A report at Exh.23 shows that
they were the same articles/samples which were collected
from the spot of incident and examined. P.W.103 Vinod
Satav also deposed in his evidence that Exh.330 is the
same letter through which he sent the 7 samples for
examination to forensic science laboratory, Delhi and the
C.A report at Exh.23 was received from the said laboratory
in that respect.
61] P.W.78 identified the C.A report at Exh.22 as
the same which was prepared by him in respect of the
articles/samples which were collected from the spot of
incident and deposed that the traces of cyclonite (RDX)
ammonium nitrate, nitrate ions alongwith hydrocarbon oil
was detected in the articles/samples. The C.A report at
Exh.22 corroborates his evidence. He identified the letter at
71
Exh.343 as the letter by which the articles/samples were
received by the laboratory. Perusal of the letter at Exh.343
and the C.A report at Exh.22 shows that they were the
same articles/samples which were collected from the spot
of incident and examined. P.W.103 Vinod Satav also
deposed in his evidence that Exh.343 is the same letter
through which he sent the 7 samples for examination to
forensic science laboratory, Pune and the C.A.report at
Exh.22 was received from the said laboratory in that
respect. The other C.A. reports prepared by this witness or
at the Pune forensic science laboratory, which are at Exhs.
25 to 65, are in respect of the blood, skin, hair samples of
the victims and they are not disputed by the defence since
they do not show the residue of explosives.
62] P.W.75 further deposed that RDX is the high
explosive material used for exploding the Bomb and it may
cause severe destruction to the surrounding objects and
they at their laboratory have the instruments by which they
can detect the high explosive even if it is present in
nanogram level (very very minimum quantity). He further
deposed that after the explosion by use of RDX, the
explosive contents turns into gaseous form, emanating a
large volume of gas and produce a high level temperature
and it is defused in the surroundings in the form of smoke
72
and the smoke which emanates due to the blast get stuck
to the surrounding object in the form of smoke residue
and from the analysis of that residue, the nature of
explosive used can be determined. He further stated that
addition of ammonium nitrate and oil to the explosive
substance increases it's effectiveness of destruction
through explosion effect and inflammable effect. His
evidence shows that the C.A. report at Exh.22 prepared by
P.W.78 was shown to him and he stated that the result of
analysis mentioned is RDX, ammonium nitrate and nitrate
ion alongwith petroleum hydrocarbon oil were detected in
the exhibits received by the said laboratory.
63] P.W.78 further deposed that their laboratory at
Pune is equipped with latest and sophisticated equipments
which can detect the explosives such as RDX at different
concentrations and GCION scan chromatogram can detect
RDX upto the level of Pictogram (very very small quantity),
which is not visible to naked eye. He also deposed that
RDX is the high explosive and ammonium nitrate can also
be used as an explosive and if RDX is mixed with
ammonium nitrate, charcoal, petroleum hydrocarbon oil,
the effectiveness of the explosion is enhanced. He deposed
that whenever the explosion occurs, heat gets generated
and pressure gets developed and material nearby in the
73
vicinity is blown off and they may get stuck to the
surrounding surfaces in a very small amount.
64] Both these witnesses from the forensic science
laboratory were cross examined by the Ld. defence
Advocate. It has come that RDX means Research
Development Explosive. P.W.75 stated that the opinion
given by him in his evidence about the RDX was not
mentioned in his report. It is needless to state that in the
C.A report only the result of analysis of articles/samples is
to be given and therefore, not mentioning the opinion about
the RDX in the C.A report will not make any difference or
will not render the C.A. report useless. In cross this
witness stated as to how the Bomb can be exploded. The
cross examination could not affect the evidence given by
this witness for the prosecution. P.W.78 in his cross
examination stated that it is not necessary to have
petroleum hydrocarbon oil in RDX. Nothing material is
brought in the cross examination of this witness to dent his
evidence given for the prosecution.
65] From the evidence of these two witnesses from
the forensic science laboratory it is clearly established by
the prosecution that the explosion occurred at the German
Bakery, Koregaon Park, Pune in the evening of 13022010
was due to the explosive substances as stated above. In
74
their cross examination it is confirmed that RDX is not
available in open market and so, it is clear that the
explosion was made to cause. From all the evidence
discussed above it is clear that the explosion had caused
at German Bakery on the said date and time and it
resulted in severe destruction to the property and claimed
the life of 17 persons and caused injuries to 58 persons.
Hence, Point No.1 is answered accordingly.
AS TO POINT NO.2
66] Once it is established that the explosion at
the German Bakery was caused due to use of explosive
substances, it is to be seen as to whether it was the
Terrorist activity. The term terrorist Act is defined Under
Section 15 of Unlawful Activities (Prevention) Act,1967. The
relevant part of the said provision is reproduced here.
Terrorist Act Whoever does any act with intent to threaten or likely to threaten the unity, integrity,security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country:
a] by using bombs,dynamite or other explosive substances or inflammable substances or fire arms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause
75
i] death of, or injuries to any person or persons orii] loss of, or damage to, any person or persons oriii].................iv]...............b]...............c]................It would not be out of place to mention some of the
meanings of the word Terrorism as shown in para 47 of the
case Mohammad Khalid V/s State of West Bengal reported
in 2002(7) SCC 334.
Terrorism is the use of threatened use of force designed to bring about political change Brian Jenkins.
Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targetedWalter Lacquer.
Terrorism is the premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience James M Poland.
Terrorism is the unlawful use of threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a government, individuals or groups, or to modify their behavior or politics Vice President's Task Force 1986.
Terrorism is the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population,or any segment thereof, in furtherance of political or social objectives FBI Definition.
76
67] On this point the relevant evidence is that of the
Police officers and the report from the National Security
guard. The Investigating officer of this case, is P.W.103
Vinod Satav. There is no dispute on the aspect that he was
holding the post of Asst. Commissioner of Police in the Anti
Terrorist Squad at the relevant time and was competent
officer to investigate the offence under Unlawful Activities
(Prevention) Act,1967. His evidence shows that pursuant to
the orders of Director General of Police the investigation of
this case was handed over to the Anti Terrorist Squad and
the order in that regard is at Exh.408 and thereafter he
took over the investigation and registered the offence at the
Kala Chowky office of Anti Terrorist Squad, Mumbai and by
report at Exh. 409 he forwarded the copy of complaint to
the Special court, Anti Terrorist Squad. His evidence shows
that PI Hasabnis, PI Joshi and PI Gaikwad were given the
work of viewing the CCTV footage of the vicinity and
separate clip of the relevant footage was copied in the C.D
at article 61. If the cross examination of this witness is
seen, there is no challenge on these aspects.
68] It is further deposed by P.W.103 that by night it
was confirmed that the Bomb explosion was the terrorist
act and after considering the preliminary information and
over all situation and because of use of RDX, in the
77
explosion, it was suspected that the Bomb explosion may
have been executed by the Banned organization like
LashkarEToyba and Indian Mujahiddin and the
investigation was focused in that direction. In the evidence
of this witness the prosecution have brought on record the
Gazette issued by the Government of India dated 1208
2010, 06052008 and 30122004 at Exh. 421
(collectively), banning the organizations by name simI and
Lashkar E Toyba. Being the Government Gazette the same
is admissible in evidence. As regards the said Notification is
concerned, the same is not disputed by the defence. It is
needless to state that in the Schedule given in the Unlawful
Activities (Prevention) Act,1967, the names of Terrorist
organizations are given which includes the said
organizations. Not remembering the date by this witness on
which the Organization Indian Mujahiddin was banned is
of no consequence as he is not the authority to issue the
orders of ban. It is brought on record that at the time of
incident the said Organization Indian Mujahiddin was
banned Organization. In cross it is confirmed that the
Organization LashkarEToyba is Pakistan based
Organization. This witness stated that the members of the
said Organization also operates in India and he cannot tell
as to who is the President or Secretary of the same. In the
78
cross examination it is brought that RDX is not available in
the open market. He stated that he cannot say that the
RDX is only in the exclusive possession of the Army. The
cross examination could not affect the evidence given by
P.W.103 in respect of the Banned Organization and use of
RDX in the explosion at German Bakery.
69] Further, in the evidence of P.W.103 it has come
that Colonel Man from the National Security Guard and Mr.
Gopinath from the Delhi forensic science laboratory had
visited the site on 18022010 and they collected certain
articles from the spot of incident and the said Colonel Man
submitted his report in that regard which is at Exh.425.
The said report is in respect of the said explosion occurred
at German Bakery and the findings of the same are that
the mobile phone is the likely device used as the
mechanism to explode the bomb. There is no challenge to
the said report.
70] P.W.101 is the Senior Police Inspector and was
posted in the Control Room, Pune as the Police Inspector
(Administration) at the time of incident and was one of the
member in the investigating team. This witness alongwith
Police Inspectors Mr. Joshi and Mr. Barge were given the
work of verifying the CCTV footage seized from the hotel 'O'
and the German Bakery, to establish the link of the
79
persons who were present at the relevant time. He deposed
that they synchronized the timings mentioned in the
footage and the persons seen in the footage and on
05032010, noticed one suspect wearing cap and having
two sack bags on his person, out of which one was on his
back and other was at the front side was standing on the
counter of German Bakery and in the CCTV footage of hotel
'O' the said person was seen crossing the road and coming
towards the German Bakery and after some time he was
seen leaving the German Bakery with only one sack bag on
his person. He informed the Sr. officers about the said
footage. While recording the evidence of this witness, article
61 CD having the relevant recording from the footage of
hotel 'O' and the German Bakery was played and showed
to him and he identified the said footage in which the
timing of standing of that suspect at the German Bakery
counter was from 16.46.11 to 16.51 and the timing of that
suspect leaving the German Bakery was 17.29.30. He also
recorded the statement of the witnesses who were present
at the German Bakery soon before the explosion. Cross
examination shows that he visited the spot of incident 45
times and there was no CCTV camera at the entrance of
German Bakery and at the side gate which is opposite to
hotel 'O'. However, there is no dispute that CCTV camera
80
was installed at the counter of German Bakery. It has come
that the CCTV footage which were seized, were seen by
them number of times. He denied that the distance
between German Bakery and hotel 'O' is about 100 fts.
According to this witness the distance between German
Bakery and hotel 'O' may be between 30 to 35 fts. The
omission in the statement given to the Police is only in
respect of the position of bags on the said person wearing
cap and having only one bag while going out. The said
omissions are of no consequences because the statement
is based on the recording which was already stored in the
CCTV. There is nothing in the cross examination to caste
doubt on his evidence.
71] The prosecution have also examined one officer
from Anti Terrorist Squad by name Dinesh Kadam as
P.W.102 to establish this point. It is the contention of Ld.
defence Advocate that this witness is not of the rank of
Asst. Commissioner of Police and so not competent under
the Unlawful Activities (Prevention)Act, 1967 to investigate.
It is submitted by Ld.Spl.P.P that even if the said
contention of defence is accepted for a moment, the
evidence of this witness in respect of the investigation done
by him in the other cases can always be considered since it
would not be the investigation in this case. I find merit in
81
the submission of Ld. Spl.P.P. Presently the only aspect is
whether the explosion was the terrorists act or not and so,
to determine this aspect the evidence of the said witness
can be considered and there is no bar for the same under
the Law. As regards the aspect of investigation done by this
witness in the present case, if any, would be considered at
the appropriate stage.
72] P.W.102 is the Police Inspector from the Anti
Terrorist Squad Mumbai, since May 2010 and prior to that
from the year 2007 he worked with the Crime Branch
Mumbai and prior to that he was in the Anti Terrorist
Squad. His evidence shows that while working so, in the
department, his duty was to investigate the information
received from the Central Intelligence Agencies and to
investigate in respect of the terrorists and the important
Accused persons. His evidence shows that he had assisted
in the investigation of the C.R No. 3/2006 registered with
the Anti Terrorist Squad in connection with the seizure of
large quantity of AK47 riffles, RDX, hand grenades, live
cartridges from Aurangabad and in the said case persons
by name Fayyaz Kagzi and Jabbiuddin Ansari who are the
resident of Beed were the wanted Accused and their search
was done in Beed. He deposed that recently Jabbiuddin
Ansari was arrested. His evidence further shows that he
82
had assisted in the investigation of C.R No.152/2008 which
was registered in connection with the EMails sent to the
various Government offices and the media by the Terrorists
Organizations by name Indian Mujahiddin and in the said
C.R they had arrested in all 21 Accused persons who were
connected with the said Organization and the statements of
the said Accused persons were recorded under the
provisions of Section 18(2) of M.C.O.C.A and the Charge
Sheet was filed against them and against the wanted
persons. He further deposed that it was revealed that the
members of the said organization by name Riyaz Bhatkal,
Iqbal Bhatkal and Yasin Bhatkal were involved in the said
Crime and they searched for the said Accused persons at
various places by obtaining their photographs. He further
deposed that after he joined the Anti Terrorist Squad in
May 2010, considering his experience he was asked to
assist in the investigation pertaining to this case and he
was shown the CCTV footage which were seized during
investigation. He deposed that after viewing the CCTV
footage, he noticed that the person who was carrying two
bags while entering the German Bakery and carrying one
bag while going out at the German Bakery was Yasin
Bhatkal (absconding Accused No.1). He deposed that since
the photograph of Yasin Bhatkal was obtained in the year
83
2008 he was able to identify him on the basis of the said
photograph. It has come in his evidence that on the basis
of information received from the Central Intelligence
Agency, they keep the photographs of the terrorists, collect
the information about the manner of their working, the
places of their functioning and their associates and on the
basis of information received from his sources and the
photographs, he was sure that the said person seen in the
CCTV footage was none but Yasin Bhatkal. Para 20 of his
evidence shows that he had brought with him the photo
album and the information of the various Accused persons
available with them. While giving evidence article 61 CD
pertaining to the relevant CCTV footage of German Bakery
and hotel 'O' was shown to him and he deposed that the
person wearing the cap and having two sack bag standing
at the counter of German Bakery and having only one sack
bag while going out of the German Bakery was Yasin
Bhatkal. In cross examination he deposed that Yasin
Bhatkal is the wanted Accused in the Ahemadabad Bomb
explosion case and also in the present case and is wanted
since 2008. He denied that the person seen in the CCTV
footage was Abdul Samad and not Yasin Bhatkal. It is
suggested by the defence that Yasin Bhatkal was wanted
since 2006. He denied that Abdul Samad was arrested in
84
the present case. His not taking action against the news
paper agency in which the name Abdul Samad is printed
below the photograph of Yasin Bhatkal, in connection with
the present case, cannot be the reason to discard the
evidence of this witness about his identifying the planter of
Bomb as Yasin Bhatkal. The admissibility of the news item
in evidence in already considered at the beginning of this
point. Non recording of the statement of this witness will be
of no benefit to the defence firstly because he identified the
suspect after viewing the CCTV footage, secondly it is the
settled position under the Law that the evidence of witness
cannot be ignored or rejected merely on the ground that his
statement was not recorded by the investigating machinery.
From the evidence of this witness it is established by the
prosecution that the person seen in the CCTV footage of
the German Bakery and hotel 'O' wearing cap and having
the sack bag on his person is Yasin Bhatkal who is
wanted Accused in this case. The evidence of this witness
shows that he has sufficient experience in the
investigations in respect of terrorist organization and the
persons concerned with the said organization. Though
cross examined, the evidence of this witness identifying
Yasin Bhatkal in the CCTV footage has remained
unaffected. Merely because this witness is a police officer,
85
his evidence cannot be discarded. The authenticity and the
admissibility of the CCTV footage is already considered
prior to starting discussion on this point.
73] From the evidence of the aforesaid three
witnesses it becomes clear that just before the explosion at
German Bakery, absconding Accused No.1 Yasin Bhatkal
entered the German Bakery with two sack bags and he left
German Bakery with only one bag. It is unlikely that one
will forget one bag out of the two when both of them are
carried by himself. It is already seen in the evidence of the
watchman examined while considering the Point No.1
(Witness No. 23), that since many customers who used to
visit the German Bakery where the students carrying bags,
there was no occasion for the watchmen to check the bags.
So, it is clear that the bags were not checked while entering
the German Bakery. There is no material to show that
absconding Accused No.1 Yasin Bhatkal had again come to
the German Bakery and took the second bag with him.
This shows that out of two bags one bag was deliberately
left back. No one would do this. It is against the normal
human conduct. Taking place of explosion shortly after the
absconding Accused Yasin Bhatkal left the German Bakery
with only one bag, becomes more relevant. Evidence in
this regard is trustworthy and accepted. It is already
86
established by the prosecution that the explosion at the
German Bakery was due to use of RDX. This clearly goes to
show that the explosives were planted to cause the
explosion. It is already established that due to the said
explosion 17 people died and 58 got injured. The evidence
of P.W.1 that the German Bakery was virtually destroyed
and damaged to the extent of Rs.15 Lakhs was caused is
already considered in Point No.1. Such act are caused only
with the intention to threaten the unity, integrity, security
or sovereignty of nation or with intent to strike terror in the
minds of citizens. From the evidence available on record
discussed up till now, it is clearly established by the
prosecution that the said explosion was a Terrorists Act.
AS TO POINT NO.3
74] While discussing the Point No.1 the Chart
showing the names of the deceased and the cause of their
death is reproduced. As regards the cause of death of the
said 17 persons due to explosion is concerned, there is no
dispute. It is already discussed that the said explosion was
due to use of explosive and the terrorist act. Thus, the
death of said 17 persons is proved to be homicidal death.
Thus Point No.3 is answered accordingly.
87
AS TO POINT NO. 4
75] As the Charge Sheet is also filed for the offences
punishable under the provisions of Unlawful Activities
(Prevention) Act, 1967 and Explosive Substances Act,1908
the obtaining of Sanction under the said Acts, is necessary.
There are three Sanction orders on record at Exh. 391,392
and 393. All the Sanction orders are admitted by defence.
However, at the time of final argument, it is submitted by
Ld. Advocate for defence that the Sanction under the
Unlawful Activities (Prevention) Act, 1967 is given by
authority after the prescribed period of seven days
mentioned in Rule 4 of the Rules framed under the said Act
and therefore the Sanction is bad. He cited the Judgment
in the case of Ashraf Khan @ Babu V/s. State of Gujrath,
2013 ALL S.C.R 198 and the case of Ravi Sharma @ Arjun
V/s. State of Zharkhand and others, in W.P (Cri) No. 91/2012.
To this, it is submitted by Ld.Spl.P.P that admittedly, the
Charge Sheet is submitted after receiving the Sanction
orders and even if there is delay by the competent authority
to issue the Sanction order within the prescribed period,
that would not affect the trial or will not make the Sanction
bad. He cited the Judgment of the Honourable Bombay
High Court passed in Criminal Application No.1256 of 2011,
dtd. 19thDecember,2012 between Mohammed Bilal V/s. The
88
State of Maharashtra and ors.
76] Before dealing with the contentions and the
rulings of the parties, it would be proper to see the
provisions in respect of Sanction in Unlawful Activities
(Prevention) Act, 1967 and the Explosive Substances Act,
1908.
Section 45 of Unlawful Activities ( Prevention) Act, 1967 . Cognizance of offence: 1] No Court shall take cognizance of any offence
i] under Chapter III without the previous sanction of the Central Government or any officer authorized by the Central Government in this behalf.
ii] under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.
2] Sanction for prosecution under Subsection(1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.
The relevant rules under the Unlawful Activities
(Prevention) (Recommendation and Sanction of the
prosecution) Rules, 2008 are as follows:
Rule 3: Time limit for making a recommendation by
89
the Authority The Authority shall, under sub section (2) of Section 45 of the Act, make it's report containing the recommendation to the Central Government or, as the case may be, the State Government within seven working days of the receipt of the evidence gathered by the Investigating officer under the Code.
Rule 4: Time Limit for sanction of prosecution The Central Government or, as the case may be, the State Government shall, under Sub Section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within Seven working days after receipt of the recommendation of the Authority.”
77] From the above provisions it is clear that before
taking cognizance of any offence under Unlawful Activities
(Prevention) Act, 1967 the proper Sanction is necessary.
Perusal of the first authority cited by the Ld. defence
Advocate shows that the case was under the Terrorist and
Disruptive Activities (Prevention) Act. In that case, one of
the aspect was that the FIR under the provisions of TADA
was registered without approval of the District Supdt. of
Police as contemplated U/s.20A(1) of TADA. Admittedly,
the present case is not for the offence under TADA.
Secondly, the Ld. defence Advocate failed to show that there
is similar provision in Unlawful Activities (Prevention) Act,
1967 mandating the prior approval before registering the
offence. However, in the evidence of P.W.103 Vinod Satav,
who is the Investigating officer it has come that on the
90
Orders of the Director General of Police, which is at Exh.
408, the investigation was handed over to the Anti Terrorist
Squad.
78] Perusal of the citation relied upon by the Ld. Spl.
P.P shows that the issue involved in that case was the
same which is raised by the defence in the present case i.e
the prosecution under the Unlawful Activities (Prevention)
Act,1967 was questioned on the ground that the mandatory
provisions and rules were not followed. From para8 of the
ruling cited by prosecution it is clear that in that case
there was delay in recommendation and sanction as
required under Rules 3 and 4. After considering the
observations in the case of Maharashtra V/s. Jagan Nepali
and another, reported in 2011(5) Mah L.J. 386, it is observed
in para 13 as follows:
“Section 45(2) is introduced as a resolution of 2008 amendment, the time limit and sanction from the authority and review are checks and Legislature desired to avoid false prosecution. The measures of the checks are the administrative exigencies, procedural supervision meant to speed up the administrative process after investigation on the basis of which the prosecution has to be launched. Any fall out in adhering the time schedule does not made out a case for breach of either of the compliance of section 45(2). It has to be shown that the delay has led to the denial of right, conferred upon the accused. There is no such situation as the State desired prosecution and it was placed before the authority for review and then needs to be recommended. The defect or irregularity in official compliance has no adverse
91
bearing on the competence of the sanction in terms of Section 45(2) of the said Act.”
Further, the reported citation relied upon by the
Ld. defence Advocate is considered in para 16 of the
Judgment relied upon by the Ld. Spl.P.P. The issue involved
in the said case before the Honourable Bombay High Court
was identical which is raised in this case by the Ld. defence
Advocate and pertain to the same Act. Thus, the Judgment
relied upon by the Ld. Spl.P.P is squarely applicable to the
case in hand. It is nowhere the case that any prejudice is
caused to the arrested Accused due to grant of Sanction
beyond the period prescribed under the Rules.
In the Second Judgment relied upon by the defence,
the Sanction order were passed by the concerned
authorities much after the cognizance of the offence under
the Act was taken by the Ld. Chief Judicial Magistrate and
was issued at the fag end of the Trial and therefore it was
held in that case that the cognizance was not sustainable
in the eye of Law. However, it is not the same in the case in
hand.
79] In the present case the Sanction under the
Unlawful Activities (Prevention) Act, 1967 is at Exh.391.
Perusal of the same shows that it is issued by the Home
Department (Special), Mantralaya, Mumbai and signed by
92
Additional Chief Secretary, (Home) and Secretary InCharge
of Home Department, Government of Maharashtra. It is
clear from subsection 1(i) of the Section 45 quoted above,
that the Central Government can delegate the powers of
granting sanction. Perusal of para 4 of the Sanction order
clearly go to show that the Central Government vide it's
Order No. I/17014/14/07–IS VII, dtd. 08082007
(Notification No. S.O. 1004(E), dated 21st June, 2007) has
authorized the Secretary of the State Government in
Charge of Home Department, Government of Maharashtra
to exercise powers to accord Sanction for taking cognizance
of the offence under Unlawful Activities (Prevention) Act,
1967. However, on this aspect there is no dispute. For
issuing Sanction the only requirement is primafacie
satisfaction of the Sanctioning authority on the basis of
material placed before him. Perusal of the Sanction order
shows that it is issued after fully examining the material
placed before the Sanctioning Authority and considering
the facts and getting satisfied that there is primafacie case
against the Accused. It is clear that the Sanction accorded
under Unlawful Activities (Prevention) Act,1967 is proper
and valid.
80] Section 7 of the Explosive Substances Act, 1908Restriction on Trial of offencesNo Court shall proceed with the Trial of any person for an offence against this Act except
93
with the consent of District Magistrate.
The Sanction orders under the Explosive
Substances Act, 1908 are at Exh.392 and 393. The
Sanction at Exh.392 is issued by the Collector and District
Magistrate, Latur, dated 20112010 and the Sanction order
at Exh.393 is issued by the Collector and District
Magistrate, Pune dated 02122010. As regards the
competency about the issuing authority, there is no
dispute. Perusal of both the said Sanction order shows that
they are duly issued. However, as far as these two sanction
orders under the Explosives Substances Act are concerned,
no grievance is raised by the defence.
81] One of the submission made by Ld. defence
Advocate is that the cognizance is taken before the
Sanction because the Accused was produced before the
Ld. Magistrate prior to grant of sanction. Replying this
submission Ld. Spl. P.P submitted that the Sanction orders
were filed with the Charge Sheet and only thereafter the
cognizance is taken. The Sanction order at Exh.391 and
393 is dated 02122010 and the Sanction order at Exh.392
is dated 20112010. It is not in dispute that the Charge
Sheet is filed on 04122010 alongwith the Sanction orders.
Therefore, it is crystal clear that the Sanction orders were
issued prior to filing of Charge Sheet. As regards the term
94
taking cognizance is concerned, useful reference can be
made to the Judgment of Honourable Bombay High Court
reported in 2005 (1) Bom. C.R. (Cri) 337 in which the
meaning of word 'take cognizance' is dealt with and
relevant authorities on that point are quoted therein. Under
the well settled position in Law, taking cognizance is taking
notice of an offence or application of mind to the case with
the intention of initiating Judicial proceedings against the
offender or taking steps to see whether there is any basis
for initiating Judicial proceedings or the point when a
Magistrate or a Judge first takes Judicial notice of an
offence. Mere production of the Accused for the purpose of
Remand before Magistrate and passing orders on Remand
Application do not come within the term 'taking
cognizance'. At the remand stage the only aspect before the
Magistrate is whether to give Police custody remand or to
send the Accused in the Judicial custody. Production of
the Accused for the purpose of remand, before filing of the
Charge Sheet is the stage at the time of investigation and at
that point of time there is no question of Court taking the
cognizance of the case. Cognizance is not taken of the
Accused but of the offence, which can be done only after
filing the Charge Sheet. Further, the Charge is framed by
this Court after hearing the parties and perusing the case
95
papers and admittedly the Sanction orders were on record.
From this, it is more than clear that the cognizance of the
case was taken only after the Sanction orders were issued.
The cognizance is lawful in all respects. Hence the
contention of the Ld. defence Advocate is liable to be
rejected.
82] For the second time, the contention is raised by
Ld. defence Advocate that no prior permission of Central
Government is sought by the prosecution under Section
188 of Cr.P.C before filing the Charge Sheet as allegedly the
conspiracy was held at Colombo. In respect of jurisdiction
the Ld. defence Advocate have cited the Judgment of the
Honourable Apex Court in the case of Dipankar Dutt
V/s.State of Bihar 2007 Cr.L.J. 4360. In the said case the
issue was to decide the territorial jurisdiction on the basis
of allegations made in the complaint and it was held that
as per the averments in the agreement between the
Accused and some others for criminal conspiracy, could
not have taken place at Patna and if such an agreement
took place, it can be inferred to have taken place only at
Calcutta. The facts of the said case are completely different.
83] The said section pertains to the offence
committed outside India and for trying such offence the
previous sanction of the Central Government is mandatory.
96
This very aspect was raised by the defence Advocate at the
time of framing the Charge and the same has been dealt
with and considering the Judgment in the case of Ajay
Agrawal V/s. Union of India 1993 (3) SCC 609, in which
identical issue in respect of Sanction U/s. 188 of Cr.P.C is
considered, it was rejected The relevant observations made
in the said Judgment is reproduced. It is observed that
“conspiracy is the continuing office and so long as it's
performance continues, it is a continuing offence till it is
executed or rescinded or frustrated by choice or necessity
and being a continuing offence, if any acts or omission
which constitutes an offence are done in India or outside it's
territory the conspirators continuing to be parties to the
conspiracy and since part of the acts were done in India,
they would obviate the need to obtain sanction of the Central
Government U/s. 188 of Cr.P.C. However, if the Charge of
conspiracy framed in this case is seen, it is not only in
respect of conspiracy at Colombo but also in respect of
conspiracy at other places. However, admittedly, the act of
causing explosion pursuant to the conspiracy is executed
in India, at Pune. Hence the contention is liable to be
rejected.
Thus, Point No. 4 is answered accordingly.
97
AS TO POINT NOS. 5 TO 12
84] Since all the points are interlinked they are
taken for discussion together. Before embarking on the
circumstances brought on record by the prosecution to
prove the charges, there are some aspects which require
consideration prior to discussing the circumstances so as
to avoid repetition.
Evidence showing the basis on which the Investigating officer suspected the involvement of Accused.
85] P.W.103 has deposed that he verified the cases
which were registered in connection with the activities of
the terrorists. He deposed that he had done the
supplementary investigation of the case which was
registered in connection with seizure of 16 AK47 riffles,
3,200 live cartridges, 43 Kg. RDX, 50 hand grenades etc.
from Aurangabad in May, 2006 and the persons by name
Samad Khan was the Accused in that case and he had
given the confession statement under the M.C.O.C. Act in
which there was reference of the present Accused Himayat.
In his evidence, the certified copy of the said Confessional
statement is brought on record at Exh.412. While
advancing argument it was submitted by the Ld. defence
Advocate that the Confessional statement is a weak piece of
evidence and therefore, the same may not be relied. It is
98
well settled position under Law that the confessional
statement is the weak piece of evidence and can be
considered only for corroboration. The said confessional
statement by no means can be taken into consideration to
establish the involvement of the Accused in the present
case. He further deposed that the Accused was the wanted
Accused in C.R No.17/2008 which was registered with the
Anti Terrorist Squad under the provisions of Unlawful
Activities (Prevention)Act. As can be seen from the evidence
of this witness on the basis of said circumstance he started
the investigation in respect of Accused. If the cross
examination is seen, this aspect is not at all disputed but
the same is further affirmed.
Arrest of the Accused
86] This aspect is taken for consideration because
the Accused disputed his arrest by the Anti Terrorist Squad
on 07092010. In his statement recorded U/s. 313 of Cr.P.C
it is stated by the Accused that he was arrested on 1908
2010 or prior to that, when he had gone to Latur for
making inquiry about the CET Examination and after
making the inquiry in the evening he came to the Latur
Bus stop for returning to Beed and at that time 5 to 6
persons caught hold of him from the backside on the gun
point and made him to sit in one Sumo Jeep and he was
99
brought to Pune, where he was kept for two days and
tortured and thereafter on 21082010 he was taken to
Mumbai at Kala Chowky and tortured in different ways
including giving currents on the private part and after two
days he was again brought to Pune by Mr. Kadam (P.W.102),
Mr. Sabnis and Mr. Patkar who are from the Anti Terrorist
Squad and he was taken to the German Bakery and was
told that this was the spot of incident. He further stated
that he was again taken to Mumbai and tortured in
different ways and was made to sign on different blank
papers at the bottom of page and he did not signed on any
written paper. He further stated that he was threatened
that his friends, brother in law and brothers would be
implicated and was told that his brother in law and brother
were sitting in the other room and they are being beaten
and his brother in law was going to give divorce to his
sister. He further stated that 2 to 3 times he was taken to
some secluded place by covering his eyes with the cloth
and was told that he will be encountered like Khwaja
Yunus and since he got frightened and scared about his
life, he did whatever he was told to do and after 15 to 20
days he was again brought to Pune and was produced
before the court and at that time he came to know as to in
which case he was implicated. He further stated that he
100
was again taken back to Mumbai and threatened not to tell
anything either in the hospital or in the court. He further
stated that during his custody the police had kept his
mobile phones in switch on mode.
87] Perusal of record shows that no such complaint
was made by Accused before the Ld. Magistrate when he
was produced for remand. There are three remand reports
on record which are dated 08092010, 20092010 and
28092010, which shows that on that dates the Accused
was produced for remand and the Ld. Magistrate passed
orders on those remand reports. Perusal of the said orders
show that no complaint of illtreatment at the hands of
police was made by the Accused to the Ld. remand Court.
Record also shows that the Ld. Advocate who is
representing the Accused in the Trial, had also appeared
for the Accused before the remand Court. However, no
such grievance was made at any point of time before the
Learned Remand Court. Had really the Accused would
have been lifted abruptly on 19082010 and was kept in
illegal custody without being inform to his family members,
in all probabilities his family members would have lodged
missing complaint with the police or taken some steps to
search for him. However, nothing of that sort is done.
88] In his evidence P.W.103 Vinod Satav who is
101
Investigating officer has deposed that on 07092010 when
he was present in his office, he received information from
the D.I.G that Accused was coming to the Pool Gate bus
stop at Pune and accordingly he immediately reached there
with the staff and to identify him, they had the photograph
of Accused. It has further come in his evidence that at
14.00 hrs. they saw the Accused on platform No.3 and he
was apprehended and brought to the Anti Terrorist Squad
office and in the preliminary inquiry made with him, it was
revealed that he was involved in the present case and so
the Accused was arrested on 07092010 and the arrest
cum search panchnama at Exh.252 was prepared and his
arrest was informed to his brother. It has also come in his
evidence that the report at Exh.413 was submitted to the
Bardgarden Police station in respect of his arrest. Perusal
of the said report shows that on 07092010 itself the
information about the arrest of the Accused was given by
this witness to the Bandgarden Police station where the
offence was initially registered. He denied the suggestion
that the Accused was taken in custody at Latur on
19082010 by Anti Terrorist Squad, Aurangabad unit and
was given in his custody on 20082010.
89] The Panch witness Tushar Pandit is examined as
P.W.53. In his evidence he stated that on 07022010 he
102
was called at the office of Anti Terrorist Squad where
P.W.103 and the Accused Himayat were present and the
personal search of Accused was taken in his presence and
the following articles were found in his personal search.
article No. 13 Nokia Company Mobile Handset.article No. 14 G5 Company Mobile Handset with
sim card of Tata Docomo.article No. 15 One spectacle.article No. 16 Pocket book of Urdu language.article No. 17 I card of Election commission of India.article No. 18 Brown colour pouch.article No. 19 Small piece of Newspaper.article No. 20 3 Passport size colour photographs.article No. 21 Piece of ATM card and cover of ATM
Card.article No. 22 Cash of Rs. 3,020/ in the nature of
Six Currency notes.
This panch witness identified the panchnama at Exh.252
as the same arrestcumpersonal search panchnama which
was prepared at that time and identified his signature at
Sr.No.2 as the Panch. He and P.W.103 identified the
aforesaid articles as the same which were seized from the
personal search of the Accused. He further deposed that
clothes of the Accused were removed and his body was
examined and no injury was found on his person. This
panch witness P.W.53 was cross examined by the Ld.
defence Advocate. He denied that he was the regular panch
of the Police and the said articles were not seized from the
103
possession of the Accused. Non signing on the articles by
the panch witness will not discredit his evidence
particularly when it is corroborated by the panchnama.
The panchnama at Exh.252 fully corroborates the evidence
of this panch witness. The panchnama also shows that the
brother of Accused by name Shahajad Inayat Baig was
informed about the arrest of Accused on his mobile phone
No.9763031186.Though cross examined, there is absolutely
nothing which would create doubt about the testimony of
this panch witness P.W.53. In the Charge Sheet there is the
arrest form duly filledin which shows that Accused was
arrested on 07092010. This evidence of P.W.103 and
P.W.53 corroborated by contemporary documents
establishes beyond reasonable doubt that the Accused was
arrested on 07092010 and the aforesaid articles were
seized from his possession.
90] It is submitted by Ld. defence Advocate that if
at all the Accused was arrested at the Poolgate Bus stop,
the Police could have called the two panchas from the Bus
stand or else the Accused could have been taken to the
nearby Sholapur Bazar police chowky for his personal
search, but instead of doing so, he was directly taken to
the Anti Terrorist Squad office, Pune. Replying to this
contention it is submitted by Ld. Spl.P.P that since the
104
investigation was of the sensitive case involving dangerous
persons, taking the search on the spot would have
attracted lot of members of the public and may have
resulted into panic situation and if he was to be searched
in any event at some other place in Law, it would not have
made any difference had he been searched at the nearby
Police station or the Anti Terrorist Squad Unit office which
is also in Pune itself. He further submitted that nothing
has been said to be planted on the Accused during his
personal search and therefore, the said submission is
purely academic. On this point P.W.103 who is the
Investigating officer have stated in the cross examination
that since the Accused was one of the suspect in this
case, he was taken to the office of Anti Terrorist Squad
where the inquiry was made with him and thereafter the
panchas were called and the panchnama was done. I find
merit in the submissions of Ld. Spl.P.P and it is clear from
the evidence of the Investigating officer that only after
inquiry with the Accused the search was conducted and
nothing wrong is seen in doing that.
91] In his statement U/s.313 of Cr.P.C the Accused
though disputed his arrest on 07092010, have stated that
he was using two mobile phones and only one sim card of
Tata Docomo was seized from him. As seen from the
105
evidence of P.W.53 panch witness in whose presence the
personal search and arrest of Accused was done, it is
categorically stated by him that one mobile phone
(article14) seized from the possession of the Accused was
having the sim card of Tata Docomo company. Exh.252
searchcumarrest panchnama also shows that the sim
card found in article 14 was that of Tata Docomo company
having the mobile number 8149308626. The Investigating
officer, P.W.103 have also stated that mobile phone having
sim card of Tata Docomo was found in the mobile which
was seized from the possession of Accused when he was
apprehended and the phone call details were called. The
evidence of Nodal officer who supplied the phone call
details of the said Mobile number is already discussed
while considering the authenticity of the phone call details.
The phone call details of the aforesaid mobile number are
at Exh.355 (collectively). Perusal of the same do not show
the tower location of Mumbai from 19082010 till his
date of arrest. If the statement given by Accused Under
Section 313 is to be believed that during his custody the
police had kept his mobile phones in switch on mode, then
the tower location of Mumbai would definitely come in the
said phone call details for that period between 19082010
till 07092010, had really he was taken in custody prior to
106
07092010. From this, it becomes clear that the
contentions of the Accused that he was taken in custody
on 19082010 is afterthought. There is one more aspect
which shows that the arrest of the Accused was done on
07092010 and it is that, the said phone call details are
only till 06092010. One of the contention of Ld. defence
Advocate is that from the phone call details at Exh.355
(collectively) it is seen that the tower location of the mobile
phone on 06092010 was Bhavani Peth Pune and
therefore, this shows that he was in police custody. In
absence of any evidence/material to show that in the tower
location of Bhavani Peth only the office of Anti Terrorist
Squad Pune is covered, the said contention has no legs to
stand. It is needless to state that the tower location of
mobile phone cover a considerably large area. That only
shows that on that date also the Accused was in Pune and
therefore, it gives further assurance that he was arrested
on 07092010 and not before that.
92] Further, the Ld. Spl.P.P pointed to Exh. 15
which is the Say given by the defence to the Application at
Exh.14 which was filed by the prosecution for permission to
file Additional documents and stated that in this Say itself
the defence have admitted that the Accused was arrested
on 07092010. Perusal the said say at Exh. 15 shows the
107
following sentence of defence.
“1] It is pertinent to note that the Accused
was arrested on 07092010 by the Police from Mahatma
Gandhi Bus stop, Pune .................................”
93] From the above evidence available on record it
is crystal clear that the Accused was arrested on 0709
2010 and not prior to that as contended by the Accused.
Thus, the claim of Accused that the date of his arrest is
not 07092010, is unacceptable.
Taking of specimen handwriting/signature of the Accused and P.W.94 Rehan.
94] The evidence on record shows that the specimen
handwriting of the Accused and his friend Rehan(P.W.94)
was taken by the Investigating officer. P.W.51 Gokul Shelar
have deposed that on 20092010 he was called at the
Police head quarters, Shivajinagar, Pune by the Anti
Terrorist Squad, where Mr. Satav, (P.W.103), two to four
other persons including Accused were present and in his
presence the specimen handwriting of the Accused, which
included writing of numbers, writing of the matter which
was dictated by P.W.103 by reading the slips of State Bank
of Hyderabad, signatures and name was taken under the
panchnama at Exh.247. He identified the panchnama and
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Exh.246 (collectively) as the same specimen handwriting of
Accused. He also identified the Accused as the same
person whose specimen handwriting was taken in his
presence. In cross it has come that on that date he had
come to the shop for giving the delivery of stationary and
he was called by the police. There is nothing to show that
he was regular panch of the police. Though the questions
pertaining to the Bank slips are asked to this witness by
the Ld. defence Advocate, this witness had no reason to
know the contents of the Bank payinslips. His evidence is
limited only in respect of taking the specimen handwriting
of the Accused. His testimony is not affected by any means
and through this witness the prosecution have established
that the specimen handwriting of the Accused were taken.
95] P.W.52 Yogesh Naik is the panch witness in
respect of taking the specimen handwriting of Rehan
(P.W.94). He deposed that on 20102010 while he was
proceeding from the Modern College, he was called by the
Police in the Anti Terrorist Squad office where the person
by name Rehan Shaikh was present and the specimen
handwriting of that person was taken in his presence
under the panchnama at Exh.250. He identified Exh.249
(collectively) as the same specimen handwriting of Rehan
Shaikh. In cross examination there is nothing to doubt the
109
evidence of this witness. He is not the regular Panch of the
police. The evidence of this witness finds corroboration
from the evidence of P.W.94 Rehan Shaikh where he states
that he was called at the Anti Terrorist Squad office,Pune
where his specimen handwritings were taken.
96] P.W.103, Investigating officer also stated that
the specimen handwriting of Accused and P.W.94 were
taken and identified the panchnama and specimen
handwriting in that respect. Further, in the Remand report
dtd. 28092010 there is reference about taking specimen
handwriting of the Accused. From the aforesaid evidence
available on record, the prosecution have established that
during the course of investigation the specimen
handwriting of the Accused and P.W.94 was taken.
Evidence of Handwriting Expert
97] Since the reference of the documents and
opinion will come at different places, the evidence of the
Handwriting expert is taken up for discussion to avoid
repetition. The evidence on record shows that the
documents seized by the investigating machinery during
the investigation were sent for examination to the
handwriting expert alongwith the specimen handwriting
and signature of the Accused and P.W.94 Rehan and the
110
Expert gave his opinion and report in that regard. P.W.103
Investigating officer have deposed to that effect.
98] P.W.76 Dilip Ahiwale is the Handwriting expert.
His evidence shows that he was appointed as the Asst.
Examiner of Documents in C.I.D., Maharashtra State, Pune
in the year 1980 and after appointment he was placed
under Training for one to one and half year for the subject
of science of handwriting. His evidence shows that he was
having the experience of examining approximately more
than 3Lakh documents and he retired as the Chief State
Examiner of Documents, CID, State of Maharashtra, Pune.
His evidence shows that vide letters at Exh.332 and 333
from the Anti Terrorist Squad, Pune he received the
following documents for examination and opinion.
1] Seven Bank payinslips as questioned documents.(Exh 296,300,304,305 and 309 (collectively)
2] One Guest House Register as questioned document.(article 35)
3] 102 specimen writing sheets.(Exhs. 246 and 249.
4] One Pocket diary containing admitted writings.(article12)
5] One letter dated 11072008 containing admitted writings. ( article53).
His evidence shows that he examined the documents under
various lighting magnifications and under various lighting
111
conditions and marked the Questioned writings and
signatures by referring Alphabet 'Q,' marked the Specimen
writings and signatures by referring Alphabet 'A' and 'B'
and marked the admitted writings by referring Alphabet 'N'.
In his evidence his report at Exh.334 and the reasons for
his opinion at Exh.336 are brought on record and he
identified the same as given by him. He was cross
examined by the defence on the aspects of variations in
the Alphabets written in the documents and he stated that
the variations were natural. It has come in his evidence
that dissimilarities and natural variations are two different
things which can be distinguished by the experienced
person and the reason given by him were illustrative and
not exhaustive. He denied that he had given the opinion
under the influence of Police machinery. There is nothing
in the cross examination which would damage the report
and the opinion given by this witness on the aforesaid
documents examined by him. His evidence remained
unshattered. Evidence of this witness shows that he is
having vast experience in examination of the documents
and he is the expert in science of handwriting. There is no
reason to discard the report and opinion given by him on
the documents sent by the investigating machinery to him
for examination.
112
99] It is submitted by Ld. defence Advocate that the
opinion evidence is a weak piece of evidence and cited the
Judgment reported in 2005 (1) All M.R. 593 in the case of
Abdul V/s. Smt. Khubai wherein it is observed that, the
expert's evidence as to handwriting is opinion evidence and
it can rarely take the place of substantive evidence and
before acting on such evidence, it is usual to see if it is
corroborated either by clear direct evidence or by
circumstantial evidence. The said position is well settled in
Law.
100] It is submitted by Ld. defence Advocate that
when the case is based on circumstantial evidence, the
chain of circumstances is required to be established by the
prosecution and in the case in hand there are missing links
to connect the Accused with the crime. He cited the
following Judgments on the point of circumstantial
evidence.
A.I.R. 1994 S.C 2585.Tasneen V/s The Delhi Administration. A.I.R 2002 S.C. 3206 Ashish V/s. State of M.P.
Perusal of these Judgments show that in the
aforementioned Judgments the principles about the
circumstantial evidence are given as i] The circumstances
from which conclusion of guilt is to be drawn has to be
113
fully established. ii] All the facts so established are
consistent only with the hypothesis of guilt of the Appellant
and they do not exclude any other hypothesis except the
one sought to be proved. iii] The circumstances on which
reliance has been placed are conclusive in nature. It is also
observed that there is motive behind every criminal act
and that is why investigating agency as well as the court,
while examining the complicity of an Accused try to
ascertain as to what was the motive on the part of the
Accused to commit the crime in question. The said
principles are well settled.
Circumstances brought by the prosecution to prove the involvement of the Accused.
1] Residing at Udgir by assumed/false namesTo establish this circumstance the prosecution is
relying on the evidence of P.W.73 Abdul Samad Indori,
P.W.92 Shaikh Gaus, P.W.94 Shaikh Rehan and P.W.95
Shakil Ahemad Laik.
101] P.W.73 is the Cloth Merchant having his
business at Udgir under the name and style “Indore Cotton
Shop”. He deposed that in December, 2009 as he was in
need of Rs. One Lakh for his business, he contacted his
friend from Udgir Khurshid Alam who agreed to help him
and called him at the Qureshi Masjid, Chaubara Road,
114
Udgir where he introduced him with Yusuf Sir as the
person who was having the internet center by the name
Global Internet Cafe in the premises of Udgir Nagar
Parishad. He deposed that Yusuf Sir told him that he will
give the money to Khurshid Alam and accordingly in the
next day morning Khurshid Alam called him and gave Rs.
40,000/ in cash and after two days gave Rs. 60,000/ cash
and with that amount he went to Mumbai for purchasing
goods. He further deposed that he paid Rs. 1,20,000/ in
the installments of three months to Yusuf Sir by going to
his internet cafe and became more friendly with him.He
identified Accused as the same person by name Yusuf Sir.
In cross examination it is not disputed that this witness is
doing business at Udgir. It has come in the cross
examination that he did not see Khurshid Alam taking
money from the Accused. However, this aspect gets diluted
in view of the specific suggestion given to this witness that
he paid Rs. 1,07,000/ to the Accused at one time. Further
suggestion is given that he had given the cheque of Rs.
13,000/ drawn on Jan Kalyan Bank, Udgir to the Accused.
This indicates that this witness and the Accused were
knowing each other well. It has come that he was not
knowing as to who was the owner of the internet cafe.
However, the evidence in respect of knowing the Accused by
115
name Yusuf Sir and going to the Global Internet Cafe for
giving money to the Accused, are not affected in any
manner in the cross examination. It is not the universal
formula that good business man do not take loan. There is
no reason for this witness to depose false.
102] P.W.92 is the resident of Udgir and was
running the classes for the students of 5th to 7th std. under
the name and style “Alsaba Classes” in the White Building,
Azad Nagar, Jalcot Road, Udgir which was taken by him on
rent. In his evidence he deposed that to run his classes he
was having teachers by name Shaikh Ayyaz, Abdul Rahim,
Jalkote Madam, Kadri Madam and Hasan Sir. He identified
the Accused as the said Hasan Sir. According to this
witness he got acquainted with the Accused at the
Chaubara, through Sayyed Inam who was working in the
M.S.E.B and since the Accused told him that he had
acquired the qualification as D.Ed and was having the
knowledge of computer and wanted the place to stay, he
asked the Accused to teach in his classes and reside there.
He further deposed that in March, 2010 the Accused kept
his two bags in the class rooms and from the end of May,
2010 the Accused started teaching in the classes in
between 8.00p.m. to 9.00p.m. He deposed that since the
Accused did not paid the rent towards staying in the class
116
and used to not attend the classes, he told the Accused to
leave the room and the Accused told him that he will go
after Ramzan. He further deposed that for so many days
the Accused had not come and so, his two bags were
brought by him at his house. He further deposed that on
08092010 the policemen had come to his house for
inquiry and the two bags of the Accused were handed over
by him to the police under the panchnama at Exh.264 and
he signed on the same as the token of it's receipt. In cross
examination it is suggested that he had no licence to run
the classes to which he replied that there is no need to take
the licence for conducting the classes of 5th to 7th std. It has
come that there was no agreement for taking the building
on rent. It has come that the register of students is
maintained by him. Admittedly, there is no documentary
evidence to show that the Accused was teaching in the
said classes. However, it is well known that the
unregistered private tutorials seldom issue the
appointment letter to their staff. In his statement recorded
U/s. 313 of Cr.P.C the Accused have stated that he acquired
the educational qualification of B.Ed. from Pune by the
year 2006 and for searching the job he had gone to Latur,
Udgir and Aurangabad. Looking to the educational
qualification of the Accused it becomes clear that he can
117
be provided the job as a teacher and so, even if there is no
documentary evidence about his teaching in the said
classes, there is no reason to discard the evidence of this
witness. Further, the evidence of this witness in respect of
seizure of two bags by the police is corroborated by the
evidence of P.W.56 Umakant Chatnale who is the panch
witness for the said seizure. It would be appropriate to also
consider the evidence of P.W.56 at this juncture.
103] P.W.56 in his evidence have deposed that on 08
092010 while he was passing in front from the Police
station at Udgir, he was called by the policemen and the
person by name Gaus(P.W.92) was present in the Police
station with one black colour brief case and one khaki
colour shoulder bag. He deposed that the khaki colour bag
contain the clothes (article 25) comprising one full sleeves
shirt of yellow colour having checks, one black colour full
sleeves shirt, two light brown colour full pants one Ash
colour half sleeve T shirt, one cream colour half sleeves
sweater, one small pink colour plastic polythene, three
handkerchief,one light blue colour napkin, one toothbrush,
one small Pepsodent tooth paste, one Green colour soap,
soap wrapper having the name Sesa and 1/ Re. coin. He
further deposed that in the black colour brief case there
were several documents and they were separately packed in
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six different envelopes. He identified articles 24 and 26 as
the same bags. He deposed that the panchnama of the said
process was prepared which was read over by him and he
signed it. He also deposed that the labels of his signature
and that of other panch were put on them. He identified
the panchnama at Exh.264 (alongwith Japtipatrak) as the
same panchnama and also identified signature of Mr.
Gaus(P.W.92) on the same in token of receiving the copy. He
identified the documents at articles 27(collectively),
article28(collectively),article29(collectively),article30(collecti
vely), article 31(collectively) and article 32 (collectively) as
the same documents which were found in the black colour
brief case and seized under the said panchnama. From the
cross examination of this panch witness it is seen that he
is the resident of Udgir and works in one Grocery shop and
educated upto 10th std. Non mentioning in the said seizure
panchnama at Exh.264 about this witness passing in front
from the Police station is of no consequence. There is
nothing to suggest that he is the regular panch of the
police. Though there was no lock on both the said bags,
there is nothing which would suggest that the said articles
were not seized from the said two bags. The evidence of this
panch witness is cogent and reliable. The passport at
Exh.422 which is found in the black colour brief case and
119
referred in the said panchnama, is accepted by the Accused
as that of his. Evidence of this panch witness corroborates
the evidence of P.W.92 about seizure of two bags and the
articles found therein belonging to the Accused, by the
police. From the evidence of this witness the prosecution
have established that several documents which are
specifically mentioned in detail in the said panchnama, are
seized from one of the bags of the Accused.
104] According to Ld. defence Advocate there was
no need for P.W.92 to take the bags of Accused to his house
and give it to the police. For this, the answer is already
present in the evidence of P.W.92, wherein he deposed that
since the Accused had not come for so many days he took
his two bags to his home. He did what a prudent man
would do. As the police asked for the said bags, he had no
option but to handover the same to the police. Perusal of
the panchnama at Exh.264 mentions in detail the article
which were seized from the said bag. The panchnama is
also identified by P.W.92 as the same by which the
aforesaid articles were seized by the police from him.
105] P.W.94 is the witness who hails from Beed
which is the native place of Accused and they both are
friends. He got acquainted with the Accused in the year
2006. His evidence shows that the Accused was residing in
120
Udgir and running the Internet cafe. He deposed that he
was working at Pune in Consultancy by name 'Job One,
India' and once he went to Beed, which is his native place,
without informing his working place and so, he was
removed from job and it has further come in his evidence
that, he was searching for job in Pune and contacted
Accused, who called him to Udgir and it was the year 2008.
He further deposed that he started residing with the
Accused in the Jama Masjid at Chaubara and started
working in the Global Internet Cafe, which was started by
the Accused in the premises of Nagar Parishad Udgir in
February,2009 on payment of Rs.1,500/p.m. He further
deposed that for 2 to 4 days the Accused used to go out of
station. He further deposed that Accused used to chat on
the computer alone and whenever there was a phone call,
he used to go at some distance and talk. This part of his
evidence finds no challenge in the cross examination. He
being well acquainted with the Accused, it is not unnatural
that he was with the Accused at Udgir.
106] P.W.95 is the person who got acquainted with
the Accused in June/July, 2007 in the Dars (religious
discourse) arranged at Parbhani. He knows the Accused
by the name Yusuf. He again met the Accused in the year
2008 at Aurangabad in the hostel situated in Usmanpura
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area. His evidence shows that he was also in contact with
the Accused telephonically. In his evidence he deposed
that in the year 2009 Accused called him to Udgir at the
Global Internet Cafe where the Accused introduced him
with Sabeer Patel, Alif, Khurshid Alam and Rehan (P.W.94)
by the name Salman. His evidence further shows that
Rehan (P.W.94) was confronted to him at the time of giving
evidence and he identified him as the same person as
Rehan. He further deposed that Accused used to come and
meet him at Aurangabad. Perusal of the cross examination
of this witness shows that the above aspects are not
challenged.
107] From the evidence of the above referred
witnesses it is abundantly established by the prosecution
that the Accused resided at Udgir for some time in the
Masjid and for some time in the white building by the
assumed names Yusuf and Hasan. Though the said
witnesses were cross examined by the defence, their
testimony remained unshaken. The seizure of two bags in
which one of the document is the Passport of the Accused
Himayat, gives further assurance that the said bags and
the articles belonged to the Accused and they were kept in
the white building, where he was teaching and residing. In
his statement U/s. 313 of Cr.P.C it is stated by the Accused
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that the said two bags were seized from Beed, which is his
native place. However, there is nothing to support the said
contention.
Thus, this circumstance is established by the
prosecution beyond reasonable doubt.
2] Seizure of Explosive substance at the instance of Accused of the same composition which is used in causing explosion in German Bakery.
This is the highly incriminating circumstance
brought by the prosecution against the Accused. It is the
prosecution's case that the explosive material is seized on
the statement made by the Accused. On this point the
prosecution is relying on the evidence of P.W.77 Shrikant
Shetti (panch witness),P.W.80 Laxman Kumare (the
member of Bomb detection and Bomb disposal squad),
P.W.103 Vinod Satav (Investigating officer), P.W.75
N.B.Bardhan (Forensic expert) and P.W.78 Ravindra
Kulkarni (Forensic expert).
108] Before evaluating the evidence of the aforesaid
witnesses in respect of discovery and seizure panchnama,
it would be pertinent to take note of the provisions of
Section 27 of the Evidence Act which reads thus:
How much of information received from accused may be
proved Provided that, when any fact is deposed to as
discovered in consequence of information received from a
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person accused of any offence in the custody of a police
officer, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered, may be proved. The Law on this aspect is well
settled from the Judgment of Pulukuri Kotayya V/s.
Emporer (A.I.R.1947 P.C 67). There are catena of decisions
of the Honourable Higher Courts that 'fact discovered'
includes not only the physical object produced but also the
place from where it is produced and the knowledge of the
Accused as to it's existence.
109] According to P.W.77, he was called by the Anti
Terrorist Squad on 07092010 at about 4.30p.m. while he
had come to take the appointment at the Clinic of Dr.
Sharangpani situated near the Modern College, Pune for
panchnama U/s. 27 of the Evidence Act of the Accused
arrested in the German Bakery Bomb explosion case and
he agreed to act as a panch. He deposed that the Accused
whose face was veiled, P.W.103 Vinod Satav and another
panch by name Koshe were present in the Anti Terrorist
Squad office and after lifting the veil the Accused gave his
name as above and when P.W.103 asked the Accused as to
whether there was any pressure over him, the Accused
said No. His evidence shows that the Accused gave
statement that he will show the place where the material
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used in preparing the Bomb and the material which was
left was kept and the said statement was recorded and was
read over to the Accused and thereafter it was read by him
(panchas) and thereafter the Accused put his signature
and the panchas and the Investigating officer also signed
the memorandum. He identified Exh.341 as the same
memorandum. He further deposed that after the said
memorandum he came to know that they were required to
go to Udgir and P.W.103 communicated for arranging the
Bomb Detection Squad and he himself and the other panch
were asked to take the personal search of the police staff
and accordingly they took the search of police staff and
only normal articles were with the staff. He further deposed
that Accused was asked to take search of the Panchas and
accordingly Accused took search of him and the other
panch. It has further come that the Government vehicle in
which they had gone was also searched before leaving. He
further deposed that in the Government vehicle the
weighing machine, stationary comprising papers, carbon
papers, the envelopes of small and big size, lac, stag etc.
were taken and in the Government vehicle he himself,
Accused, P.W.103, the driver, another panch and another
policeman traveled and the face of the Accused was veiled
having holes at the place of eyes, nose and mouth. He
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further deposed that the vehicle was taken at the instance
of Accused to Latur via Hadapsar and thereafter to Udgir
where they reached around 1.30a.m and at the instance of
the Accused the vehicle was taken to Jalkot road and
stopped and after alighting from the vehicle they all
followed the Accused who showed one house. He deposed
that in the meanwhile P.W.103 made phone call and called
the back up required by him. He further deposed that the
compound of the said house was having one iron gate and
the Accused sounded the latch of gate and gave the call by
saying 'Abdul' and at that time the Bomb Squad and the
sniffer dog was with them. He further deposed that on the
call given by the Accused the lights of the house were
switched on and one person came outside the house and
the Accused lifted his veil and when P.W.103 asked the
name of that person he gave his name as Abdul Sayyad and
he opened the gate. He further deposed that the said
person Abdul was asked by P.W.103 to take their personal
search but he declined to take the search and thereafter
they followed the Accused and entered the house and the
Accused had taken them on first floor of that house from
the stair case which were on the right side of the hall and
there was one room on the first floor and the Accused
opened the latch of the door. He further deposed that there
126
was one wooden double bed and the Accused lifted the ply
of the said double bed and removed one nylon bag which
was kept in one carton of pressure cooker and from that
removed the white colour plastic bag inside which there
was one more carry bag of yellow colour and the Accused
told that the said material was the same material which
was left in connection with the German Bakery and it was
'Barood.' He further deposed that P.W.103 called the main
persons from Bomb Squad who came alongwith the dog
and the dog was made to sniff the material and it wagged
it's tale and barked and it was stated by the members of
Bomb squad that the material was explosive. It has come
that one solder gun, one solder wire, one solder wire cutter
and five pieces of black colour material were found in the
said bag. He further deposed that the said five pieces were
weighed and it was found to be of 1200 grams and from
that P.W. 103 removed 100 grams piece and all the articles
were separately packed in plastic and thereafter in brown
paper (envelopes) and thereafter wrapped and the labels of
their signatures were put on each article and the contents
of the information was also written in the labels. He
deposed that the opening of each envelope was sealed by
lac and the detail panchnama was prepared and was given
to the panchas for reading and after they read and found
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the contents to be true and correct, they both panchas
signed the panchnama and P.W.103 had also signed on the
panchnama and the labels. He deposed that at the instance
of P.W.103, they alongwith the police staff checked the
house. He identified the panchnama at Exh.341A (second
part of memorandum) as the same panchnama and
identified the signatures appearing on it. He also identified
the articles 54 (collectively) hard piece of black colour kept
in yellow colour plastic bag and white colour bag, article
55small portion of the black hard material, article
56(collectively) portion of black material in yellow colour
plastic bag, article 57solder gun, article 58solder wire,
article 59wire cutter and article 60Nylon bag as the same
articles which were seized under the said panchnama. He
identified Accused as the same person who gave the
statement U/s.27of the Evidence Act and at whose instance
the aforesaid articles were discovered.
110] This panch witness was cross examined by the
defence Advocate. In cross examination it has come that in
the memorandum at Exh.341 it is not stated that the
Accused was brought in veil and the memorandum was
read over to the Accused. It has also come that the Accused
had not given his house Number and plot number in the
statement. To the suggestion that in the voluntary
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statement it is not mentioned that the Accused will show
the solder gun, solder wire,and solder cutter, it is answered
that the Accused stated that he will show the remaining
articles and explosives. It has further come that it is not
mentioned in the memorandum that the panchas had
taken the search of the policemen and the Accused was
told to take the search of the panchas and accordingly the
Accused had taken their search. He deposed that he
cannot tell the colour of the said house. He stated that the
house was one plus one having total seven rooms and two
toilets and there was only one person in the house by name
Abdul Sayyed. It has come that the room at the first floor
was not locked and there is no mention in the second part
of memorandum at Exh.341A that there was the carton of
the pressure cooker. He stated that the panchas had not
signed on the writings which the persons from the Bomb
Squad had given to P.W.103. It has come that the signature
of the Abdul Sayyad who was present in the said house and
the signatures of the persons from the Bomb Squad were
not taken on the panchnama at Exh.341A. He stated that
he was unable to tell as to whether the copy of the said
panchnama was given to the said person who was present
in the house. It has come that the solder gun, solder wire
and solder cutter were the articles related to electrical
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equipments. He denied that he was the regular panch of
the police and he had never gone to Udgir and the
aforesaid articles were not seized in his presence. He
denied that the aforesaid memorandum and panchnama
were signed in the office of Anti Terrorist Squad. He denied
that since he was in the catering business he was well
acquainted with the police and he has given false evidence
at the instance of police.
111] P.W.103 have also deposed about recording of
the statement of Accused and going to Udgir with the
Accused, panchas and the staff in the Government vehicle.
He also deposed about seeking the help of Bomb Detection
and Disposal Squad and pointing of the house by the
Accused. He also deposed about opening the gate of the
said house by the person named Abdul Sayyed after the
Accused gave call. He also deposed about climbing the
staircase after entering the said house and removing the
explosive material by the Accused from the storage box of
the bed after opening the panel. He also deposed about
sniffing the explosive material by the dog of Bomb Squad
and giving positive signal. He also deposed about removing
100 grams sample from the explosive material which
weighed 1200 grams. He also deposed that the plastic bag
containing the explosive material were having articles
130
solder gun, solder wire, and wire cutter. He deposed about
separately packing of all the said articles and sealing them
with the lac seal and putting the labels on them having the
signature of panch witnesses. He also deposed about
preparing the panchnama in that regard. He identified the
Memorandum at Exh.341 and seizure panchnama at
Exh.341A and also identified the articles 54 to 60 as the
same which were seized under the said seizure
panchanama. He also deposed about taking search of the
said house. He also deposed about making the entry in the
station diary before leaving the office and after reaching
the office at the time of aforesaid panchnamas at Exh.341
and 341A and identified Exh.414 and 415 as the said
relevant entries. He also deposed that the entries were
made in the log book of the Government vehicle which was
used at the time of aforesaid panchnamas at Exh.341 and
341A and identified as Exh.416 as the same relevant
entries from the log book. He further deposed about the
report given in that regard to the Udgir Police station and
station diary entry made in the Udgir Police station in that
regard. He identified Exh. 418 and 419 as the same.
112] In cross examination he denied that the
Accused never made the statement and the said
memorandum is the false document. He stated that the
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house number, address and the area of place where the
house was situated was not mentioned in the
memorandum and volunteered that since the Accused did
not stated about the same, it was not mentioned therein. It
has come that the statement of the owner of the said house
was not recorded. He also stated that the plastic bags
which were seized were not sent for finger print
examination. He denied that the aforesaid memorandum
and the seizure panchnamas were prepared in the Anti
Terrorist Squad office. He denied the suggestion that no
dog squad was called. It has come that though the names
of the panchas were not mentioned in the station diary
entry at Exh.414, there is reference of presence of two
panchas. He denied that the station diary and log book
entries were subsequently prepared and submitted at the
time of recording evidence.
113] From cross examination of P.W.77 it is seen
that certain aspects stated by him in his evidence are
missing from the memorandum at Exh.341. Let us consider
a hypothetical situation that there is no written
memorandum. If that be so, there would be no question
that certain things stated by the witness are not finding
place in the written memorandum. In a Full Bench
Judgment the Honourable Guvahati High Court, in the
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case of Raju Phukan V/s. State of Assam reported in 2010
Cr.L.J.338, after considering various rulings on the point of
Section 27 of the Evidence Act have held that a Disclosure
statement to be admissible U/s. 27 is not statutorily required
to be reduced into writing, though prudence demands that
such an information should be required into writing in order
to unable the court to know exactly as to what the Accused
is alleged to have stated and the extent to which the
information given by him is admissible. However, in the
present case, to corroborate the evidence of P.W.77 panch
witness and P.W.103 Investigating officer, there is
contemporary written Memorandum at Exh.341. What is
material or relevant is the admissible part of statement
made by the Accused in custody, relating distinctly to the
fact discovered and nothing more. As regards the statement
made by Accused, the witness have stated in his evidence
and it is consistent with the evidence of the Investigating
officer and the Memorandum at Exh.341. Non mentioning
of the aspects such as the Accused was veiled, reading
over of the Memorandum to the Accused, search of the
policemen by Panchas and asking the accused to take their
search in the memorandum at Exh.341 will not affect the
evidenciary value of the same. These aspects cannot be
133
labeled as the omissions or contradictions because the
memorandum at Exh.341is not the previous statement of
P.W.77.There is complete consistency in the evidence in
respect of the statement made by the Accused. Except the
said aspects there is nothing in the cross examination of
both the aforesaid witnesses which would affect their
testimony in respect of the statement made by the Accused
admissible U/s.27 of the Evidence Act.Though it is not
required under the Law that it should be signed by the
Accused making the statement,the Memorandum at
Exh.341is signed by the Accused. Perusal of the
Memorandum at Exh. 341 and second part/seizure
panchnama at Exh.341A shows that it is in such a
continuity that it is in such a continuity that it rules out
the possibility of any insertion in the same.
114] There is further corroboration to the
prosecution's case in respect of discovery of explosive
material at the instance of Accused. P.W.80 is the witness
working in the Latur Squad of Bomb Detection and Bomb
Disposal whose duty consists of detecting suspicious
material like RDX by naked eyes and with the help of
sniffer dog and equipments. He deposed that the Anti
Terrorist Squad Pune, had sought the help of their squad
on 07092010 and accordingly they reached Udgir along
134
with their sniffer dog and along with the Anti Terrorist
Squad went to one house where on the first floor their dog
was made to smell the black sticky substance which was in
the yellow colour carry bag kept in the nylon bag and the
dog gave positive signal. He deposed that the report in that
regard was given by the head of their team Mr. Attar, to the
Anti Terrorist Squad team and Exh.351 is the same report.
In cross examination it is brought that the said report was
not signed by this witness and his statement was not
recorded and he had not signed on any paper on that date.
This witness was not the head of BDDS team but one of the
member of that team and the report is given by the head of
their BDDS team. As can be seen from his evidence the
head of their team Mr. Attar is retired from services. As
they both were working together, it is natural for him to
identify the signature of Mr. Attar. Since this witness was
the part of BDDS team, his testimony becomes relevant.
P.W.103 Investigating officer, in his evidence have deposed
about the said report at Exh.351. Perusal of the said report
shows that it fully corroborates the evidence of this witness
from Bomb Squad. The cross examination could not affect
the testimony given by him. There is nothing to show that
the BDDS is under the control and supervision of the Anti
Terrorist Squad and so there is no reason for them to give
135
false report at the instance of Anti Terrorist Squad. The
evidence of this witness corroborates the evidence of P.W.77
and P.W.103 in respect of seizure of explosive from the
house pointed out by the Accused. From this report at Exh.
351 it is again clear that the explosives were seized from
the building by name White building where the Accused
was residing and teaching and naturally he had access to
that place.
115] One submission of Ld. defence Advocate that
the address of the house is not mentioned in the
Memorandum statement and to this submission, the reply
is already finding place in the evidence of Investigating
officer P.W.103 where he deposed that since the Accused
have not told the house numbers and other details of the
house, it is not mentioned therein. Other submission of
Ld. defence Advocate is that the Accused have not stated
specifically about the wire cutter, soldering wire and
soldering gun in his Memorandum statement but, still they
are seized. Perusal of Exh.341 clearly shows that though
the said three articles are not specifically mentioned, but
there is clear reference about pointing the other
miscellaneous articles with the explosives. Thus, the said
contention is of no consequence.
116] As regards the seizure of articles No. 54 to 60
136
is concerned, there is complete consistency in the evidence
of P.W.77 and P.W.103 and it is also corroborated by the
seizure panchnama at Exh.341A. It has come in the
evidence that the articles were sealed by the lac seal
separately and labels of their signatures were put on them.
The seizure panchnama is identified by them and they also
identified the article Nos. 54 to 60. On the aspect of seizure
also, the cross examination could not dent the prosecution
evidence brought on record. There is suggestion that the
statement of house owner is not recorded and the said
person Abdul is not examined. Non examination of the
house owner from where the discovery is made at the
instance of Accused is not the requirement under the Law.
However, in the cross examination P.W.103, Investigating
officer have deposed that the said house was taken on rent
by Shaikh Gaus who is P.W.92. Further, non examination
of the said person Abdul who had opened the gate of the
house is not fatal for the prosecution, because what counts
is the quality of evidence and not the quantity. It is the
prosecution's choice as to which witness they should
examine. To go one step further, under the position in law,
the recovery/discovery can also be established through the
evidence of the Investigating officer alone if the same is
found to be cogent and trustworthy.
137
117] One submission of the Ld. defence Advocate is
that no panchnama is drawn for the search of the vehicle in
which they had traveled and for the search of the
Policemen taken by the Panch. In his evidence P.W.77 has
categorically deposed that the Government vehicle in which
they had gone was searched and they panchas also took
the search of the police staff and the Accused also took the
search of the panch witnesses. His evidence is trustworthy
and no corroboration is required.
118] By giving the suggestion to P.W.103
Investigating officer about the destruction of RDX seized at
Aurangabad in the year 2006, the defence wanted to
suggest that the explosives are planted on the Accused. It
is deposed by P.W.103 that to his information the 43 Kg.
RDX which was seized in May 2006, in the city of
Aurangabad was destroyed under the orders of concerned
Court and in reexamination the prosecution has placed on
record the copy of Court's order and the copy of
panchnama to show that the said RDX has been destroyed.
Since the said copy is not the certified copy it is only
marked as article 24. In the recross examination taken by
the Ld. defence Advocate there is no suggestion that article
24 was not in respect of destruction of the said RDX.
119] One of the submission of the Ld. defence
138
Advocate is that the building owner was not called at the
time of seizure of articles at the instance of the Accused
and so the Investigating officer failed in his duty. As
referred earlier P.W.103, in his evidence have stated that
said house was taken on rent by Shaikh Gaus who is P.W.
92. As seen earlier, in his evidence P.W.92 Shaikh Gaus
have stated that he had taken on rent the house by name
White building. In the report at Exh.351 given by the
BDDS to the Investigating officer and in the report at Exh.
418 given by the P.I Milind Gaikwad of the Anti Terrorist
Squad to the Sr. P.I of Udgir Police station for the purpose
of making the station diary entry, there is reference of the
White building as the place from where the aforesaid
articles are seized. In his evidence P.W.103 have identified
the said reports. In these circumstances, not calling of the
owner of the building or not examining him as a witness is
immaterial. What is material or relevant is the knowledge of
the Accused about the articles and the place where they
are kept.
120] One submission of Ld. defence Advocate is that
P.W.77 have given contradictory statement which create
doubt about his going with the police party. The said
submission is without any basis and only made for the
sake of argument. Since there is no previous statement of
139
this witness,there is no question of giving any contradictory
statement. He is the panch witness for memorandum and
seizure panchnama. The evidence of P.W.77 is consistent
and do not create slightest doubt. There is absolutely no
material to show that he is the regular panch of the police.
121] One of the submission of the Ld. defence
Advocate is that the RDX may have been planted on the
Accused Himayat. None of the material or circumstances
give rise to such an assumption. The evidence on record
have clearly established that the Accused was arrested on
07092010 in the afternoon at Pune. The memorandum
statement is of the same day after his arrest and pursuant
to that the discovery of articles 54 to 60 is effected in the
intervening night of 7th and 8th September,2010. This clearly
shows that the discovery at the instance of the Accused is
immediate after his arrest pursuant to his disclosure. In
the evidence of P.W.103 he has clearly deposed that the
RDX seized at Aurangabad is destroyed and that part of
evidence went unchallenged. It is the own contention of
defence that the RDX is not available in the open market
but only with the Military. Admittedly, the Anti Terrorist
Squad is in no way concerned with the Military or also is
not in such a position so that they can influence the
Military and procure the RDX. There are contemporary
140
documents brought on record by P.W.103 in the form of
station diary entries made before leaving the office at the
time of Memorandum statement and after coming back to
the office after the seizure. Non mentioning of the panchas
name, the house number and about the BDDS team in the
station diary entry is no reason to presume that the station
diary entries are subsequently made. It is needless to state
that only in brief the gist of the duty performed by the
policemen is to be written in the station diary entry. There
is also the entries made in the log book of the Government
vehicle which was used in the travel, which is brought on
record. Further, in the evidence of P.W.103, the report given
to the Udgir Police station and the entry made in the
station diary of the Udgir Police station in connection with
the seizure of the aforesaid articles 54 to 60, are brought
on record vide Exh.418 and 419 respectively. Perusal of all
these documents clearly go to show that they are prepared
in the normal course of official work. The first Remand
report dtd. 08092010 filed by P.W.103 before the Ld.
Magistrate also speaks of seizure of the said articles at the
instance of the Accused. Further, it is already seen in the
evidence of P.W.92 Shaikh Gaus that the Accused was
teaching computer and residing in the White building
which he (P.W.92) had taken on rent. Therefore, it is clear
141
that the Accused was having access to the said white
building. As seen from the evidence available on record,
particularly Exh.418 , 419 and 351, the seizure of article 54
to 60 are made from this White building at the instance of
the Accused.
122] One of the submission of Ld. defence Advocate
is that the carton in which the said plastic bags containing
article 54 to 60 were kept is not seized and the nylon bag
was not sent for the finger print expert. To this it is
submitted by the Ld. Spl P.P that the finger prints can be
lifted only from the glossy objects and not from the Nylon
bag. The plastic bags in which the said articles were kept
are admittedly seized. Non seizure of the carton in which
they are kept would not affect the seizure because if
everything is required to be seized then the wooden cot
(Diwan) from which the said articles were removed by the
Accused will also be required to be seized. What is material
is the explosive articles. Further, in view of the oral as well
as documentary evidence available on record, not sending
the nylon bag to the fingerprint expert is immaterial and
not fatal for the prosecution;'.
123] Further, in his evidence P.W.103 have deposed
that the explosive substance which was seized at the
instance of arrested Accused from Udgir was sent to the
142
forensic science laboratory vide report at Exh.344, for
examination and the C.A. report in that respect was
received and Exh.24 was the same report, wherein it is
mentioned that the explosive substance was RDX,
petroleum hydrocarbon oil and charcoal. He further stated
that the material collected from the spot of incident was
already referred to the forensic science laboratory Pune and
Delhi and their C.A reports were at Exh.22 and 23. He
further deposed that as per the said C.A reports at Exh.
22, 23 and 24 the contents of explosive were the same. On
this point there is no cross examination by the defence.
Perusal of the said report at Exh.344 shows that 50 grams
material/explosive which was seized at the instance of
Accused was sent to the forensic science laboratory, Pune
by P.W.103.
124] P.W.78 is the forensic expert. Some part of his
evidence is considered while discussing the point relating
to happening of the incident. He is working as the Asst.
Chemical Analyzer since last 26 years and deposed that
the samples are received by their Laboratory in sealed
conditions alongwith forwarding letter and they are
accepted only after verifying the seals. He deposed that
after the samples are examined they sent the same to the
concerned Police station under the seal of their laboratory.
143
He identified article 56 as the same material which he
examined and also identified the wrapper in which it was
sent to the laboratory and identified the case No. as MP
363/2010. He deposed that the sample was received in
sealed condition and the seal was intact as per the
specimen. His evidence shows that the C.A. report at Exh.
24 was in respect of article 56. He confirmed that the
contents of C.A. report as true and correct. Perusal of the
C.A. report at Exh. 24 shows that the letter number of
Exh.344 is mentioned therein. Further, his evidence shows
that the C.A report at Exh. 24 pertaining to seizure of the
explosive at the instance of Accused and the C.A report at
Exh.22 pertaining to the articles seized from the spot of
incident, were confronted to him and he deposed that both
the reports show that similar type of explosive was detected
in both the samples. Perusal of the cross examination of
this witness shows that there is virtually nothing on this
aspect. It would not be an exaggeration to say that the
evidence of this forensic expert went unchallenged in this
respect.
125] P.W.75 is also the forensic expert. His evidence
to some extent is also considered while discussing the point
in respect of happening of the incident. His evidence
further shows that the report at Exh.22 pertaining to the
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articles seized from the spot of incident, was confronted to
him and he stated that the result of analysis mentioned is
RDX, ammonium nitrate and nitrate ion alongwith
petroleum hydrocarbon/oil were detected in the exhibits
received by the said laboratory. Evidence of this witness
becomes relevant, being the expert and he confirms the
findings recorded by P.W.78 who is also the forensic expert
in C.A report at Exh.22 and Exh.24 prepared by him. In
the cross examination there is nothing which would dent
or affect the evidence of this witness, as it is on general
terms.
125] The aforesaid scientific/forensic evidence
corroborates the evidence of P.W77, P.W.80 and P.W.103
that the explosive substance was seized at the instance of
Accused. From the evidence of these expert witnesses it is
established that RDX is the high explosive and if mixed
with ammonium nitrate, charcoal, petroleum hydrocarbon
oil, the effectiveness of explosion gets enhanced. Their
evidence further establishes that the explosives used in
causing the explosion at the German Bakery, Pune and the
explosives seized at the instance of Accused is similar.
Their evidence remained unshaken in the cross
examination. Evidence on record also shows that the
explosive seized at the instance of Accused was sealed with
145
lac seal on the spot of seizure and the seal was found
intact when it reached the laboratory and so the possibility
of tampering is also ruled out completely. Further, the
evidence on record also firmly establishes that the place
from where article 56 to 60 were seized, was accessible to
the Accused.
126] Another aspect which falls for consideration is
whether it can be said that the explosive substance was in
possession of Accused. It would not be out of place to
examine the meaning of word “possession”. The Three
Judge Bench of the Honourable Apex Court in the case of
Superintendent V/s. Anil Kumar, reported in 1979(4)
S.C.C.274, had the occasion to interpret the word
possession. The relevant Para 13,14,15 and 16 from the
said Judgment reproduced here.
Para 13 'Possession' is a polymorphous term which may have different meanings in different contexts. It is impossible to work out a completely logical and precise definition of 'possession' uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered too much from origin it is that of 'possession'. Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence. 12th Edition, 1966) caused by the fact that possession is not purely a legal concept. 'Possession' implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention. It involves power of control and intent to control. (See Dias and Hughes,ibid).
146
Para 14 According to Pollock and Wright “when a person is in such a relation to a thing that, so far as regard the thing he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him or in any receptacle belonging to him and under his control, he is in physical possession of the thing.”
Para 15 While recognizing that 'possession' is not a purely legal concept but also a matter of fact; Salmond (12th
Edition, page 52) describes 'possession in fact' as a relationship between a person and a thing. According to the learned author the test for determining 'whether a person is in possession of anything is whether he is in general control of it'.
Para 16 In Gunwantlal (ibid), this Court, while noting that the concept of possession is not easy to comprehend, held that, in the context of Section 25 (a) of the Arms Act, 1959, the possession if a firearm must have, firstly, the element of consciousness or knowledge of that possession in the person charged with such offence, and secondly, he has either the actual physical possession of the firearm, or where he has not such physical possession, he has nonetheless a power or control over that weapon. It was further recognized that whether or not the accused had such control or dominion to constitute his possession of the firearm, is a question of fact depending on the facts of each case. In that connection, it was observed: “In any disputed question of possession, specific facts admitted or proved will alone establish the existence of the de facto relation of control or the dominion of the person over it necessary to determine whether that person was or was not in possession of the thing in question.”
128] The Ld. defence Advocate cited four Judgments
on the Point of discovery U/s. 27 of the Evidence Act. The
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First Judgment is of Honourable Kerla High Court in the
case of Abu V/s State of Kerala reported in 2010 Cr.L.J
2324. Perusal of the same shows that in that case the
seizure of explosive was not pursuant to the memorandum
statement given by the Accused therein but the same was
on the basis of reliable information which was received by
the police that the explosives were unlawfully stocked.
Secondly, the Trial Court had recorded the finding that the
prosecution failed to establish that the Accused therein
kept explosive substance for any unlawful object. Thirdly,
there was discrepancy in the number of the articles
mentioned in the search list and number of articles
received by the laboratory. Fourthly, the quantity of sample
dispatched to C.A was not mentioned in the certificate.
Fifthly, it was held that there was no link evidence to show
that the sample tested by the Chemical Analyzer was the
sample taken out under the search list. Sixthly, no question
U/s. 313 was put to the Accused therein that any
explosive substance was seized from his possession. In this
Judgment in respect of word 'possession' it is observed,
“The word 'possession' no doubt has different shades of meaning and it is quite elastic in it's connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods.”
148
The Second Judgment is in the case of Aslam V/s.
Government of N.C.T reported in A.I.R. 2003 S.C. 3547.
Perusal of the same shows that the raid was conducted by
the police team on the workshop where arms and
ammunitions were found. All the panchas in that case did
not supported the prosecution. The evidence of policeman
was found to be highly artificial and improbable. The
Accused therein was seen entering the workshop at 10.00
a.m. and the raid was conducted at 11.00 a.m. It was held
that though the police were in uniform, the Accused would
become apprehensive but, nothing that sort happened.
One of the Accused in that case was convicted for seizure
of revolver pursuant to Memorandum statement by the
Trial Court and it was observed by the Honourable Apex
Court that the recovery had been after 8 months and that
too from the open space and not from a closed or concealed
place.
The third Judgment is in the case of Bahadul V/s.
State of Orissa reported in A.I.R. 1979 S.C. 1262. Perusal of
the same shows that in the case therein the only evidence
against the Accused was the confession and removal of
Tangia from beneath the cot without there being any
statement U/s. 27 of Evidence Act.
The forth Judgment is in the case of Raju V/s. State
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of Maharashtra reported in 2008 All M.R (Cri) 2632. Perusal
of the same shows that the prosecution case was accepted
and it was observed that in a case which is based on
circumstantial evidence, the Court would also have to be
mindful of the fundamental principle of law that it is for the
prosecution to establish all the links in the case which
connect the Accused to the offence beyond reasonable
doubt, more over in a case founded on circumstantial
evidence, all the circumstances must be consistent with the
guilt of the Accused.
129] The legal position given in the aforesaid
Judgments is well settled. However, the facts and
circumstances of the aforesaid cases are vastly different
from the facts and circumstances of this case. In the case
in hand, there is Memorandum in respect of statement
given by the Accused which is written down in presence of
panchas and pursuant to the said statement the Accused
led to one house at Udgir and removed the explosive
material and other articles kept in the plastic bags, from
inside the box of the cot/Diwan by lifting the ply and this
itself shows that the articles 54 to 60 were in a concealed
position and not open/visible/accessible to any one.
Though the said room where the cot/Diwan was kept was
not locked but, the same does not assume any importance
150
because the articles were not openly kept in the room but
were hidden inside the cot/Diwan. It is already seen from
the evidence of P.W.92 that the Accused had the access
in the said house as he was teaching and residing in that
house. Pointing the explosive articles from such a
concealed place shows the exclusive knowledge of the
Accused about the same. One keeps the articles in such a
concealed place only to have control and possession over
the same. From this, the only irresistible conclusion gets
culled out is that the Accused was in conscious possession
of the explosive material. The circumstance in respect of
Memorandum statements and seizure of the explosive
material pursuant to the Memorandum statement was put
to the Accused in the statement U/s.313 of Cr.P.C. Except
denial there is no explanation given by him in that regard.
It is submitted by Ld. defence Advocate that it was for the
prosecution to establish as to from where the Accused
procured the said explosive material and from where the
Accused got training to assemble the bomb and therefore,
the Accused cannot be linked with the incident. This
submission do not impress me for the reason that it would
be the exclusive knowledge of the Accused as to from where
the explosive material is procured and from where he learnt
to assemble the Bomb. Under the provisions of Section 106
151
of the Evidence Act when any fact is especially within the
knowledge of any person, the burden of proving that fact is
upon him. From the evidence on record, the prosecution
have proved beyond reasonable doubt that the explosive
substance was in conscious possession of the Accused and
the same was seized at his instance. There is nothing to
show that the Accused was having any licence or
authorization to possess the explosive substance. Thus,
this circumstance is fully established against the Accused.
From the evidence of P.W.92 Shaikh Gaus it is clear that
one of the teacher was by name Abdul Rahim in his Al
Saba Classes and therefore, coming out and opening the
gate of the house by the person named Abdul is quite
natural. Further in the seizure panchnama at Exh.341A
the name of the person who opened the gate is also
mentioned at Abdul Rahim.
Thus, this circumstance is proved by the prosecution
beyond reasonable doubt.
3] Using/operating the Bank Account of another person
To prove this circumstance the prosecution is relying
on the evidence of P.W.94 Shaikh Abdul Rehan, P.W.68
Govind Somani, P.W.69 Suresh Deshmukh, P.W.70
Dattatraya Kalaskar P.W.71 Martand Patil and the
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documentary evidence brought on record in the evidence
of the said witnesses.
130] P.W.94 is the same witness who hails from
Beed which is the native place of the Accused and is his
friend. According to him, when he was working in the
Consultancy by name Job One India in the year 2008, he
was having the Bank Account in the Bank of Hyderabad,
Mondha, Beed and was having ATM card of the said Bank
Account. He deposed that the Accused asked his ATM card
and so he gave it to him and the said Bank account and
the ATM card was used by Accused and all the transactions
in the said account were done by the Accused. In cross
examination it has come that he used to go to the house of
Accused in Beed and in the year 2008 his friendship with
the Accused became strong and since the Accused
demanded the ATM card, he gave it to him. It has further
come in the cross examination that his said account and
the ATM card was used by the Accused and he (himself)
was not depositing any amount in the said Account.
131] P.W.68 is the Branch Manager of State Bank of
Hyderabad Parbhani Branch and in his evidence he
deposed that pursuant to the letter at Exh.294 received
from the Anti Terrorist Squad he supplied the original
credit voucher of the Account vide letter at Exh.295. The
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original voucher at Exh.296 is identified by this witness as
the same. Perusal of the said document show that it
pertains to Account No. 62058905660. In cross the said
exhibits are not challenged and it is affirmed that the
account mentioned in the said voucher was of Beed Bank.
The only aspect which is brought in cross examination is
that there is no signature in the said voucher of the person
depositing the amount.
132] P.W.69 is the Account's Manager of State
Bank of Hyderabad, Shahaganj Branch, Aurangabad and in
his evidence he deposed that pursuant to the letter at Exh.
298 received from the Anti Terrorist Squad he supplied the
original pay in slip of the Account vide letter at Exh. 299.
The original payinslip at Exh.300 is identified by this
witness as the same. Perusal of the said document show
that it pertains to Account No. 62058905660. In cross the
said exhibit is not challenged. The only aspect which is
brought in cross examination is that any person can
deposit the amount in the account of another person and
he will not be able to tell as to who had deposited the
amount in the said account through the said payinslip.
133] P.W.70 is the Manager of State Bank of
Hyderabad, Old Jalna Branch and in his evidence he
deposed that pursuant to the letter at Exh. 302 received
154
from the Anti Terrorist Squad, his branch supplied the
original pay in slips of the Account vide letter at Exh.303.
The two original payinslip at Exh.304 (collectively) are
identified by this witness as the same. Perusal of the said
documents show that it pertains to Account No.
62058905660. In cross the said exhibits are not
challenged. The only aspect which is brought in cross
examination is that any person can deposit the amount in
the account of another person and the amount cannot be
withdrawn from the account except the account holder. It
is further stated by him that the signature on both the pay
inslips were different. In reexamination he deposed that
amount can be withdrawn from the account by the person
in whose name the debit card is issued or the person who
possesses the debit card and also the pin number.
134] P.W.71 is the Manager of State Bank of
Hyderabad, Mondha Branch, Beed and in his evidence he
deposed that pursuant to the letters at Exh. 306 and 307
received from the Anti Terrorist Squad his branch supplied
the three payinslips, the statement of Account and the
Account opening form alongwith it's enclosures i.e
Electricity Bill and certificate of the Maharashtra State
Technical Board vide letter at Exh.308. The three original
payinslip at Exh.309 (collectively), the Bank Account
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statement at Exh.310 and the Account opening form at
Exh.311 and the Enclosures of the said form at article 44
collectively are identified by this witness as the same
documents supplied by the Branch to the Anti Terrorist
Squad. Perusal of the said documents show that it pertains
to Account No. 62058905660. In cross the said exhibits are
not challenged. The only aspect which is brought in cross
examination is that the name of Account holder mentioned
in the three payinslips at Exh.309 (collectively) is
mentioned as Shaikh Abdul Rehan (P.W.94). It has further
come in the cross examination that it is not mentioned in
the Bank account's statement at Exh.310 as to who has
withdrawn the amount and he cannot tell as to who had
deposited the amount in the account through the said pay
inslips. In reexamination it is brought that all the
transactions mentioned in the statement of Account at
Exh.310 are done by using the ATM. In recross
examination it is brought that no complaint regarding
misuse of the said account was received.
135] P.W.94 is the friend of Accused and so have no
reason to state falsely against him. Cross examination of
this witness have further confirmed about using his Bank
account by the Accused. Through the witnesses from the
Bank the prosecution have brought in evidence the various
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vouchers/payinslips, the Bank account statement and
the original account opening Application form of Bank
Account No. 62058905660. The aforesaid witnesses from
the Banks are the high ranking and responsible officers
and they have no reason to give false information. In cross
examination their evidence in respect of the said
documents has remained unchallenged. Perusal of the said
documents clearly go to show that they were used in the
regular course of Bank transaction. The Account number
on all the said bank documents is one and the same.
Exh.311 shows that the said account was in the name of
Rehan (P.W.94). The bank account statement at Exh.310 is
also of the same account. The opinion given by the
Handwriting expert show that the handwriting on the Bank
payinslips and the specimen handwriting of the Accused
match with each other. So, the evidence of Handwriting
expert corroborates the evidence of P.W.94 Rehan Shaikh
that the Accused used his Bank account. There is further
corroboration to establish this circumstance and that is in
the nature of the CCTV footage of various ATMs situated at
Udgir and Parbhani, which were seized from the respective
Banks. The admissibility of the same is already considered.
The evidence of P.W.103 show that the footage of the ATM
Center seized under the panchnama at Exh.253 and
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preserved in article 23A and 23B CDs were shown to him
while recording his evidence and he identified the Accused
in the footage. It is further deposed by P.W.103 that the
entries in the Bank Account statement at Exh.310 are
corresponding with the dates on which the Accused had
withdrawn the money from the ATM Centers. There is
sufficient and cogent evidence on record to prove this
circumstance. To add to this in the statement U/s.313 of
Cr.P.C while answering the Question Nos.378 and 505, the
Accused have admitted that he got acquainted with Rehan
in the year 2009 and as he was in need, for some period he
used the ATM card of Rehan with his permission.
According to the Ld. defence Advocate, it is not the crime to
use anybody's Account with his permission. There is no
doubt about it. The fact in issue is whether the Accused
used the Bank account of Rehan or not and not whether it
is crime. Thus this circumstance is proved beyond
reasonable doubt.
4] Visit to Colombo and thereafter deposit of substantial amount in the Bank account operated by Accused.
It is the prosecution's case that the Accused had
visited Colombo as the part of conspiracy and he got the
funding to execute the conspiracy. To establish this
circumstance,the prosecution is relying on the evidence of
158
P.W. 103 Investigating officer, the passport and the bank
documents.
136] It is already seen while discussing the
circumstance of Accused residing in Udgir with the
assumed/false names, that two bags of the Accused
having several documents were seized by the police under
the panchnama at Exh.264. One of the article found in the
black colour brief case is the Passport (Exh.422). In the
said panchnama there are details at Sr. No. 45 in respect of
the passport. As can be seen from the cross examination it
is not disputed by the defence that the said Passport is that
of the Accused. The Passport at Exh.422 shows that
Accused had gone to Colombo from Chennai on 0703
2008 and returned on 24032008. In his evidence P.W.103
Investigating officer have deposed that the Accused had
gone to Colombo and after his return from Colombo there
were deposits of Rs.73,000/, Rs.18,500/ and Rs.30,000/
on 29062008, 20122008 and 20012010 in the Bank
Account which was used by the Accused. The Bank
Account statement at Exh.310, corroborate the evidence
that there are deposits of the aforesaid amount in the
Account used by Accused. It is already established that the
said account is in the name of Rehan (P.W.94), but was
used by the Accused. From the cross examination it is clear
159
that the visit of the Accused to Colombo is not disputed.
Even, in his statement U/s.313 of Cr.P.C, the Accused have
admitted that he had visited Colombo. Though P.W.103
admitted of not going to Colombo for investigation, in his
cross examination the copy of letter sent to the Interpol is
brought on record at Exh.423.Perusal of the same shows
that the information was sought about the stay of Accused
alongwith absconding Accused Fayyaz Kagzi in Colombo
and about the arrival and departure of the said
absconding Accused from/to Pakistan. The letter is having
outward number and shows that it is issued by the Deputy
Commissioner of Police, Anti Terrorist Squad, Mumbai.
This shows that P.W.103 had taken steps to investigate
about the Colombo visit of the Accused. When the Accused
was put the question (Q264) in the statement U/s.313 of
Cr.P.C about his visit to Colombo, he stated that he had
gone there for doing job but due to language problem he
could not get the job. Further, while replying to the last
question (Q526) in the statement, he stated that he had
gone to Colombo for selling the clothes and perfumes
which he had purchased from Mumbai and to do job in the
Mall or in big shop. Two different answers are given by the
Accused in respect of his visit to Colombo. The said
explanation by no means appear probable.
160
Generally, Colombo is not the preferred destination for
business or jobs. However, from the evidence available on
record it is established that the Accused had gone to
Colombo and after his return there was substantial deposit
in the bank account used by him. Since the Accused was
operating the said Account he only can give the explanation
in that regard. Except denial there is no explanation.
Thus, this circumstance is proved beyond reasonable
doubt.
5] Association with the absconding Accused persons and the mind set of Accused influenced by the ideology of terrorism and having perverted notions about religion. To establish this circumstance the prosecution is
relying on the evidence of P.W.73 Abdul Samad Indori,
P.W.87 Aspak Khan, P.W.94 Rehan Shaikh, P.W.95 Shaikh
Laik and P.W.97 Mohammad Ansari.
137] P.W.73 is the same witness who is the cloth
merchant from Udgir and knows the Accused by name
Yusuf Sir. It has come in his evidence that when once he
had gone to the Internet Cafe of the Accused to return the
money, the Accused introduced him to one person as his
friend from Pune but, the name of the said friend was not
told and after the Bomb explosion at the German Bakery
161
the news was being shown over the television in which
apart from name of Accused, another person by name
Mohsin Chaudhari was shown as one of the suspect and he
was the same person to whom the Accused had introduced
him in the Global Internet Cafe. On this point the cross
examination is in para 11. Though the witness could not
give the date and month on which he had seen the said
news on the television, he stated that it was after the
month of Ramzan. Not remembering the date of German
Bakery Bomb explosion by this witness cannot be said to
be fatal for the prosecution. He admitted that he was not
acquainted with Mohsin Choudhari. He denied the
suggestion that he had not seen Accused with Mohsin
Choudhri in the Global Internet Cafe and further denied
the suggestion that he was deposing at the instance of
police. Except this, there is nothing in the cross
examination which would make his testimony unreliable.
138] P.W.87 is the witness who had taken education
of B.Ed from the Azam Campus Pune, where the Accused
had also taken the education. He deposed that in the
college, Accused was his senior and residing in the hostel.
He identified the Accused. He deposed that Accused used
to talk of 'Jehad' and provocative in connection with Gujrat
riots and taking such steps which would take revenge of
162
the same and about killing the people belonging to other
religion who have killed the Muslims and to cause the
Bomb explosion. He further deposed that even after
completing the studies, the Accused used to contact him
over the phone. In cross it is admitted that he did not
tendered any documentary evidence to show that he
studied in the Azam Campus and was residing in the
hostel. There appears to be omission in his police
statement which is not proved through the Investigating
officer, about his stay in the hostel. However, it has come in
the cross examination that he was doing B.Ed in Azam
Campus in the academic year 20042005. His not
complaining to the Principal about the provocative talk by
the Accused is not sufficient to doubt his testimony for the
reason that normally such things are not reported by the
friends or known persons, unless it becomes necessary. He
denied the suggestion that the Accused was not talking in
the said manner. The Accused in the statement U/s.313
stated that this witness was his junior in the college. It is
submitted by Ld. defence Advocate that this witness
admitted that he do not know the meaning of Jehad.
Though he admitted the same, he categorically deposed
about the manner in which the Accused used to talk.
Being in the same college, Accused talking with him in that
163
manner is not improbable. Evidence of this witness is not
affected by the cross examination.
139] P.W.94 is the same witness whose bank
account and ATM card is used by the Accused. In his
evidence it has come that Mudatsir, Jabiuddin Ansari and
Dr. Sohail are the friends of Accused and the person by
name Abu Jindal who is arrested by the Delhi police is the
same person by name Jabiuddin Ansari. He further
deposed that he saw the Accused together with the said
persons. It has come in his evidence that in the year 2006,
when the arms and ammunitions were seized from the
Aurangabad city, at that point of time his cousin brother
Ezaz Abdul and Jabbiuddin Ansari had absconded and
Jabbiuddin Ansari was arrested in the said seizure of arms
and ammunitions. It has further come in his evidence that
when he attended the Durs (Religious discourse) held in
the year 2007 in Beed at the house of Burhan, that time
Accused, Zakir, Dr. Atik, Hafiz and other persons were
present and there was discussion about the atrocity on the
Muslims and about the incident of Babri Masjid and Gujrat
Riots and it was discussed that all should come together
and fight against the atrocity and the instructions in that
regard were given by Accused and others. He further
deposed that while he was residing with the Accused they
164
used to talk about atrocities on Muslims and on the
aforementioned topic. It has further come in his evidence
that when he and the Accused were returning from
Hyderabad in March 2010, the Accused showed one video
clip from his mobile phone in which the people were seen
taking the training in Afghanistan and Accused said that
they should also take such type of training. In cross
examination he deposed that Jehad means to control
oneself and also means to fight back against the atrocities
on religion. It is suggested that since this witness was
aware about the incident of demolition of Babri Masjid,
there was no question of Accused discussing about the
same. It has come that Jabiuddin was the resident of Beed
and used to do electric work. It is submitted by Ld. defence
Advocate that in the evidence of this witness it has come
that he along with the Accused went to Hyderabad in
December 2009 and they came back to Udgir from
Hyderabad in March 2010 and so there is no question for
Accused being in Pune in February 2010. Perusal of the
evidence of the witness do not show that from December
2009 till March 2010 Accused was altogether with this
witness in Hyderabad. In the cross examination of this
witness the picture gets clear wherein the witness have
deposed that he do not remember the exact date on which
165
the Accused had come to Hyderabad and it was in the
month of March. This goes to show that after going to
Hyderabad in December 2009, Accused came back and
again went to Hyderabad in March 2010. It is clearly
brought in the cross examination that since this witness
had no place of his own at Udgir he stayed with the
Accused. Being the person staying with the Accused for
considerable period it is not unnatural that the said kind
of talk was done by the Accused. It is submitted by Ld.
defence Advocate that merely because the Accused knows
the persons named by this witness, do not make him as a
Accused. However, the evidence of these witnesses clearly
show the association of Accused with the absconding
Accused persons. Further, from the evidence of these
witnesses it becomes clear as to what sort of talk the
Accused used to do repeatedly. It is only brought by the
defence that Zaki, Dr. Sohail and Burhan are the
respectable persons. One of the submission of the Ld.
defence Advocate is that when the Accused Jabbiuddin
Ansari, Fayaz Kagzi and Yasin Bhatkal are wanted since
long, how come they will be in touch with the Accused. It is
clear from the evidence of Investigating officer that the
aforesaid Accused persons are wanted. To be absconding
means remaining away from the clutches of police. That
166
does not mean that the absconding Accused persons also
stop meeting each other or their activities. The cross
examination do not create any dent to the evidence of this
witness.
140] P.W.95 is the witness who knows the Accused
by name Yusuf. He deposed that he met the Accused in
June or July 2007 at the Dars in Parbhani and thereafter
had the occasion to meet the Accused in the year 2008 at
Aurangabad and at that time the Accused said that the
atrocities are being committed on Muslims and they should
do Jehad and take revenge and the students should be
gathered and it was his responsibility to give training to
them and in case the arms and ammunitions are required,
he can arrange for the same. He further deposed that on
telephone also Accused used to talk of Jehad. It has come
in his evidence that since the Accused used to talk of
Jehad he started avoiding him. His evidence further show
that when in the year 2009 he had gone to the Global
Internet Cafe at Udgir, the Accused had introduced him
with the persons by name Sabir Patel, Rehan (P.W.94), Alif
and Khurshid Alam, by the name Salman and when he
asked Accused the reason of introducing him by the name
Salman, Accused told him that he was working for L.E.T in
which the real name is not to be disclosed. He further
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deposed that later on he learnt that L.E.T means Lashkar
ETaiba. In cross examination suggestion is given that
when he was introduced to others by the Accused as
Salman, he had not objected and to this suggestion the
witness have stated that since the Accused was known to
him, he kept silent. The aspect of Accused telling him
about his working with L.E.T is the omission in his police
statement which is not proved through the Investigating
officer Not reporting by this witness about the talk of the
Accused to the police cannot be termed as unnatural as
normally people do not complain against the known
persons about such talks.
141] P.W.97 Mohammad Ansari is the native of Beed
which is also the native place of Accused. He deposed that
he has many friends in Beed including the Accused and
once Accused introduced him with his friends by name
Fayaz Kagzi and Jabbiuddin Ansari. He deposed that in
May 2006, some boys from Beed were taken in custody in
connection with seizure of RDX and fire arms found at
Aurangabad, and at that point of time, the Accused, Fayaz
Kagzi and Jabbiuddin Ansari were absconding from Beed.
He further deposed that Accused used to always talk about
Godhra incident of Gujrath, demolition of Babri Masjid,
atrocities on Muslims and Jehad. He deposed that
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according to Accused the word Jehad means to take
revenge. In cross examination it is reaffirmed that he is
native of Beed and the persons by name Fayyaj Kagzi and
Jabbiuddin Ansari are also the resident of Beed. He denied
the suggestion that no talk as aforesaid was being done by
the Accused with him. Not knowing the mobile numbers
of Accused Himayat will not render his testimony doubtful.
142] From the evidence of the aforesaid witnesses it
is seen that they were all known to Accused by one way or
the other. From the evidence of all the aforesaid witnesses,
it is clear that the Accused used to talk provocative with
them. Nothing is brought by the defence as to why the said
witnesses will state false against Accused. According to Ld.
defence Advocate Jehad is a religious word so using it by
the Accused is not wrong. How one interpret the meaning
of word is upto that person. Evidence of the aforesaid
witness show that the word Jehad was used by the
Accused in the sense of taking revenge. What is established
from the evidence of these witnesses is that the Accused is
having the extreme or dangerous opinion about the religion
and revengeful mindset and was in association of the
absconding Accused persons having criminal antecedents.
Thus, this circumstances is proved by the
prosecution beyond reasonable doubt.
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6] Going to Mumbai on the ticket booked in another's name and residing at the lodge in assumed name shortly before the incident. On this point the prosecution is relying on the
evidence of P.W.73 Abdul Samad Indori, P.W.64 Gopal
Chamkure, P.W.67 Maniyar Ezaz Mehmood Jahami, P.W.60
Amit Veera and P.W.63 Mohammad Ali Gotekar.
143] P.W.73 is the same witness doing cloth
business at Udgir and who knows Accused by the name
Yusuf Sir. For his cloth business he purchase the clothes
from Mumbai and travel to Mumbai by the bus of Priyanka
Travels from Latur which belong to his friend Ezaz Maniyar
(P.W.67). In his evidence he deposed that on 6th February,
2010 he had gone to Mumbai by the Priyanka Travels and
reached Mumbai in the morning on 7th February,2010 and
went to the Alnoor lodge situated at Mohamadali Road,
Crawford Market, Mumbai, where he stay put whenever he
go to Mumbai and after making the relevant entry in the
register he was allotted the bed. He deposed that he
received the phone from the Accused in between 11.00a.m.
to 12.00 noon asking him to book one ticket for Mumbai
and so he phoned Ezaz Maniyar (P.W.67) and asked him to
book one ticket in his name and told that Accused was
going to travel on that ticket and he gave the number of
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Accused to said Ezaz Maniyar. He further deposed that in
the morning of 8th February,2010 he went to receive the
Accused and they both came to Alnoor lodge and the
Accused wrote his name in the register. The witness
identified the entry at Exh.322 from the register at article
35, as the entry in his name and identified the signature
at Exh.281 from the register at article 35, as that of the
Accused. In cross examination it has come that whenever
he go to Mumbai the Munim of his shop manage the
business. His going to Mumbai by Priyanka Travels is not
challenged. Not remembering the amount paid for the bus
ticket by the witness is no reason to hold that he had not
traveled as deposed. The witness had volunteered that, the
bus fare keep on fluctuating and no one keep the ticket for
so many days. It is confirmed that the tickets dated 6th and
7th February, 2010 were booked in his name. He
volunteered that for the ticket dated 7th February,2010 he
had given the number of Accused. It is brought that about
12 hour's time is required for travel by the Bus from Latur
to Mumbai and viceaversa. Though the entry in the
register of Alnoor lodge is not in the handwriting of this
witness, the signature is made by him, as seen from the
cross examination. He denied the suggestion that no ticket
was booked by him for the Accused and the Accused did
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not traveled on the ticket dtd. 07022010.
144] P.W.64 is the panch witness in whose
presence the register at article 39 of the Priyanka Travels,
Latur is seized under the panchnama. This witness is
having the Pan stall in front of the Priyanka Travels, Latur
and he was called by the Anti Terrorist Squad Police on
16092010 at the said Priyanka Travels at about 8.30p.m.
and in his presence the Green colour register at article 39
was seized and kept in the packet upon which the label of
their (panchas) signature was put, under the panchnama
at Exh.283. He identified the said register and the
panchnama. It has come in his evidence that Ezaz Maniyar
(P.W.67) was present at that time. He denied that the
panchnama was already written and he signed at the
instance of police. There is virtually nothing in the cross
examination to doubt his testimony.
145] P.W.67 is the owner of the Priyanka Travels
having it's office at Ashok hotel, Main Road, Latur. In his
evidence he deposed that from his said Travel office, the
booking for journey from Latur to Bombay and Latur to
Pune is done, either telephonically or personally and the
travel bus goes to Mumbai from Latur every night at
10.00p.m. and it takes time of 12 to 13 hours to reach
Mumbai. He further deposed that the same bus leaves
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Mumbai at 8.00 p.m. for Latur. It has come in his evidence
that Samad Indori (P.W.73) is his regular client. He deposed
that on 16092010 the officer from the Anti Terrorist
Squad had come for inquiry with two panchas and after
verifying the entries in the article 39 register, the officers
seized the register under the panchnama. He identified
article 39 as the same register and deposed that the entry
dated 6th February, 2010 (article 39/1) and the entry dated
7th February, 2010 (article 39/2) were in the name of
Samad Indori (P.W. 73). He specifically deposed that
another person had traveled in place of Samad Indori (P.W.
73) on 7th February, 2010 because it was not possible for a
person to come back at Latur and again go to Mumbai on
7th February, 2010. As regards the correction in the entry
dated 7th February, 2010 he deposed that earlier the said
entry was in the name of another person and thereafter on
telephonic instructions from Samad Indori (P.W. 73) the
entry was made in his name. In cross examination it is not
disputed that he is running the Travel business and
deposed that the identity proof of the traveler is not
verified in his office. Since the register at article 39 is
seized, non seizure of the carbon copy of ticket is not
material. It is confirmed that Samad Indori (P.W.73)
traveled in his bus on many occasions and therefore, the
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omission in the police statement that P.W. 73 was the
regular customer is not material. This shows the
acquaintance of this witness with P.W.73. It is reiterated
that P.W.73 had phoned from Mumbai on 7th February,2010
and booked the ticket for his friend. It is confirmed that
P.W. 73 did not traveled by his travel bus on 7th February,
2010. He denied the suggestion that no tickets were booked
by P.W.73 on 6th and 7th February, 2010 and he was
deposing falsely. The evidence of this witness remained
unshattered in cross examination.
145] P.W.60 is the panch witness for seizure of the
register from the Alnoor Guest house,Crawford Market,
Mumbai. He deposed that on 13092010 in between
4.15p.m. to 4.30p.m. when he was going from the Crawford
Market, he was called by the policemen of Anti Terrorist
Squad for acting as a panch and accordingly he went with
them to the Alnoor Guest house situated at the distance of
23 minutes and the police seized the register from the
Manager of the said Guest house. He identified the article
35 as the same register and the panchnama Exh.274 under
which it was seized. In cross examination he deposed that
he cannot say as to how many floors the said Guest house
was. Since this witness is only in respect of seizure of the
register, it is not expected from him to know the floors of
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the Guest house unless he surveys the same and there is
nothing to show that he had the occasion to go on each
floor of the Guest house. He also stated the name of the
Guest house Manager. There is nothing to show that he is
the regular panch of the police. From his evidence the
seizure of register from the Alnoor Guest house is
established.
147] P.W.63 is the Manager of said Alnoor Guest
house and since he is residing in the Guest house he is
always available in the Guest house. He deposed that on
the ground floor of the said Guest house, there is a
dormitory, having 30 beds and from the 1st floor till 3rd
floor, there are 24 rooms. He further deposed that after the
customer comes to the Guest house, his complete
information such as name, address, Phone number, ID
Card No., the place from where he had come and the place
where he is supposed to go, timing of his arrival and
signature is taken. He identified article 35 as the same
register of the Alnoor Guest house which were seized by
the police. He identified Accused as the same customer
who had signed against the Entry No. 1129 dtd.
08022010 at Exh.281 appearing in the article 35 register.
In cross examination it is clearly stated by this witness that
initially they used to not take the copy of I Card of the
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customers. Therefore, it is obvious that the I Card number
is not mentioned against the entry at Exh.281. He admitted
that number of customers come to the Guest house and
there is no reason to keep in mind the customers. However,
he volunteered that the mobile number is mentioned in the
entry. He clarified that if the customer is not having the
proof of his identity, he is asked to bring the person who
knows him and in the present matter there was reference of
the customer from Latur by name Samad Indori (P.W.73).
Though he had not given the description of the customer in
his statement and he had no reason to keep in mind the
customer and that the entry at Exh.281 was in the name
of Mohammad Yusuf Mohammad Issaq, it is established
from the evidence of this witness that the said article 35
was the register of the said Guest house maintained in the
regular course of business.
148] Further, there is the evidence of Handwriting
expert who is examined as P.W.76 to whom the documents
seized in this case were sent for opinion. His evidence is
already considered and accepted. His evidence show that
one of the document was the register at article 35 which is
of the said Alnoor Guest house and the signature at
Exh.281 was marked as Q20 and the specimen signature
of the Accused was marked as A13 to A18 by him and he
176
gave the opinion vide report at Exh. 344 and reasons at
Exh.336 that, they are written by one and the same
person. Further, in the entry at Exh. 281 in Article 35
which is the register of Alnoor Guest house and in the
entry marked as Article 39/2 in the Article 39 which is the
register of Priyanka Travels, the same mobile number i.e
8149308626, is mentioned which was found in possession
of the Accused at the time of arrest. From the evidence
brought on record, the prosecution have clearly established
beyond reasonable doubt that Accused came to Mumbai
on 08022010 on the ticket booked by P.W.73 and checked
in the Alnoor Guest House situated at Crawford Market,
Mumbai, in the assumed name as Yusuf. The Defence
remained unsuccessful in making dent in the prosecution
evidence.
Thus, this circumstance is proved by the prosecution
beyond reasonable doubt.
7] Purchasing unaccounted mobile handset from Mumbai, shortly before the incident. On this point the prosecution is relying on the
evidence of P.W.88 Mohommad Ilias Mansoori and P.W.102
Dinesh Kadam.
149] P.W.88 is the owner of mobile phone shop. In
his evidence he deposed that he is in the business of selling
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new and old mobile phones under the name and style
Goodluck situated at Shop No.35, Manish Market M.R.A
Marg, Mumbai and his shop timings are from 12.00 noon
to 9.00p.m. It has come in his evidence that on 16092010,
Anti Terrorist Squad Police had come for inquiry to his
shop in respect of purchase of one mobile phone. He
deposed that Accused had come to his shop at about
2.00p.m. in the month of February,2010 and asked for old
Nokia mobile phone of 1100 model and as the said models
were available in his shop, he had shown them to the
Accused and after checking the alarms of the mobile
phones, he purchased one mobile phone for Rs. 750/ and
left. He deposed that the police made inquiry with him in
that regard and he had given the description of that
person. There is no dispute that Accused was not known
to this witness and therefore, the question of identifying the
Accused assumes importance. His evidence shows that he
was called to Yerawada Jail, Pune on 03102010 for Test
Identification Parade in which he identified Accused
amongst the nine persons who were standing in the queue.
He further deposed that after the Test Identification Parade
his statement was recorded. He identified the letter at
Exh.367,as the same which was given to him for coming to
the Test Identification Parade.Further, while giving evidence
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he identified the Accused as the same person who
purchased the aforesaid model of mobile phone from his
shop. In cross examination it has come that he do not
have the licence for his business and since last 10 years he
was doing the business in Mumbai. He categorically
deposed that his said business was conducted
unauthorizedly. It has come in the cross that there is no
reason to keep in mind the description of each and every
customer and further stated that if the customer is of
typical type or behavior, it is possible that his appearance
is captured in mind. He clarified that the dealership is for
the new phones and not for the old phones and so, not
having dealership will not render his testimony unreliable
because it has come in his evidence that the old models of
mobile phone were shown to the Accused. Non issuing of
the receipt or any document is not sufficient to discard
his evidence because his evidence is found to be reliable.
The Accused choosing the Manish Market to purchase the
mobile phone to see that the purchase transaction remains
unaccounted, is quite possible. In the cross examination it
has come that it was 8th February 2010 when the said
mobile phone was sold by him. Since this date is brought
on record by the defence in cross, it cannot be said to be
the omission from his statement. It is already established
179
by the prosecution that on 8th February 2010 Accused was
in Mumbai. He denied that the Accused was shown to him
in the office of Anti Terrorist Squad. He also gave the
position on which the Accused was standing in queue at
the time of Test Identification Parade. Not remembering the
colour of clothes which the Accused was wearing cannot
be said to be fatal.
150] The Test Identification Parade memorandum is
at Exh.369. It is admitted in evidence pursuant to the
provisions of Sec.291A of Cr.P.C and the defence had also
gave no objection for exhibiting the same. The Ld. defence
Advocate cited the Judgment reported in 2012 All M.R.(Cri)
3238 in which the Test Identification Parade was conducted
in breach of guidelines and no weight was given to the
substantive evidence and the entire evidence of prosecution
in respect of identification of Accused and identification of
stolen articles was found to be highly doubtful in nature. It
is not so in the present case. Perusal of the Test
Identification Parade memorandum shows that it was
conducted by the Tahsildar, Pune City in presence of two
panchas and the same is held as per the prescribed
procedure. It is needless to state that the object of Test
Identification Parade is to lend corroboration to the
identification of the Accused by the witness in the court.
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151] This witness had given the description of the
Accused to the police. It has come in his evidence that if
the customer is of typical type or behavior it is possible to
capture his appearance. Though cross examined by the
defence, his testimony remained unshaken. Nothing is
shown that he had the reason to depose false. His evidence
shows that the phone was purchased in the afternoon and
the Accused sorted three mobile phones and checked the
alarms. Therefore, it is clear that the Accused must be
present in the shop for sufficient time. It is not that this
witness had only a fleeting glance of the Accused. In such
circumstances, this witness had sufficient opportunity to
keep in mind the appearance of the Accused. Therefore,
the identification of the Accused by this witness do not
create any doubt in mind and is found to be trustworthy.
From the evidence of this witness, it is clearly established
by the prosecution that the Accused purchased the
unaccounted mobile of Nokia 1100 from Manish Market
Mumbai, on 8th February,2010 i.e five days prior to the
incident.
152] P.W.102 is the Police Inspector in the Anti
Terrorist Squad Mumbai. He is the officer who identified
wanted Accused Yasin Bhatkal in the CCTV footage. In his
evidence he deposed that after he joined Anti Terrorist
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Squad in May 2010, the investigation of German Bakery
was going on and considering his experience he was asked
to assist in the investigation. His evidence shows that the
Accused pointed the said shop of P.W.88 in Manish Market,
Mumbai as the place from where he purchased the mobile
phone and the shop in Sabu Siddiqui lane from where he
purchased the haversack bag. In his evidence, the
Memorandum panchnama in that regard is brought on
record at Exh.400. Further, the copies of station diary
entry and log book entry in connection with the said
discovery are brought on record at Exh.401 and 402. Only
after pointing out the shop by the Accused the statement of
P.W.88 was recorded and so it is not that, Police were
knowing the shop of P.W.88 in advance. It is submitted by
Ld. defence Advocate that, this witness had no authority to
do the investigation in this case as he was not of the rank
of Dy.S.P./A.C.P, as mandated under the provisions of
Unlawful Activities (Prevention)Act,1967. There is no dispute
about the said provision. However, admittedly, the Chief
Investigation officer is P.W.103 who is the officer of the rank
which the Law mandates. This very aspect is deposed by
P.W.102 in cross examination. There is nothing to show
that any prejudice is caused to the Accused in respect of
P.W.102 accompanying him at the time of pointing out the
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mobile shop from where he had purchased the mobile
phone and the shop from where he had purchased the
haversack bag. In the crime of such a wide magnitude, the
Chief Investigating officer is bound to take the assistance
of the other officers working under him. However, even if
this part of investigation in respect of memorandum
panchnama at Exh.400 done by P.W.102 is ignored or
discarded, the evidence of P.W.88 is quite cogent and
reliable and sufficient to establish this circumstance
against the Accused.
This circumstance is proved by the prosecution
beyond reasonable doubt. This circumstance assumes
importance and becomes relevant because mobile phone
is used as the triggering device to explode the Bomb at the
German Bakery.
8] Use of mobile phone as the triggering device to cause the explosion at German Bakery To establish this circumstance the relevant evidence is
that of forensic expert, Investigating officer, report from
National Security Guards, P.W.98 Gopal Atkare and
P.W.100 Suhas Padwalkar.
153] The evidence of P.W.75, who is the Ballistic
Expert with robust experience in the field of Ballistic and
who examined several cases of explosion and whose
183
evidence is considered at the time of discussing Point No.1,
have answered the question put to him by the defence as to
how the Bomb can be exploded. He deposed that the Bomb
can be exploded only when it is stimulated by the external
energy like electrical energy, flame, heat or friction. He
stated that not necessarily heat can be caused by electrical
instrument and it depends on the type of Bomb supposed
to be initiated. In reexamination he deposed that in most
of the explosion cases, timer device has been used for the
purpose of explosion of improvised explosive device and in
number of cases remote control device is also used for
initiation of improvised explosive device.
154] P.W.98 Gopal Atkare is another witness in
whose presence the samples/articles were collected from
the spot of incident on 18022010. He stated that he was
called by the police at German Bakery Koregaon Park,
Pune and Colonel Man, P.W.99Nadgauda, T Suresh and
Mr. Gopinath were present and they lifted the articles from
the spot of incident and they were packed in plastic bags
and the seals of Panchas signatures were put on them. He
stated of drawing panchnama in that regard and identified
Exh.388 as the same panchnama. He identified the articles
63 (collectively) which consists the broken piece of sim
card, sim metal cover, camera view cover, mother board
184
chip, mother board clip ring, metal chips, memory card,
parts of circuit board, aluminum container part, back side
of cell phone, piece of bag chains, mother board of cell
phone, cell phone connected socket wire, metal pieces,
piece of bag, 9 volt battery piece, 9 volt battery head pin,
container pieces, small pieces of bag and pieces of canvass
as the same articles which were collected from the spot of
incident. In cross examination there is nothing to show
that he was the regular panch of the Police or he was not
present on the spot. He denied the suggestion that the
panchnama was written in the Bandgarden Police station.
The evidence of this witness clearly establishes that the
experts had visited the spot of incident and collected the
aforesaid articles for examination. The evidence of this
panch witness is corroborated by the evidence of P.W.99
Nadgauda who was the Sr. Police Inspector of the
Bandgarden Police station, as seen from para No.8 of his
evidence and the evidence of P.W.103 who is the
Investigating officer, as can be seen from para 10 of his
evidence.
155] It is submitted by Ld. defence Advocate that
two spot panchnamas are prepared in the present case and
twice the articles were collected from the spot as there was
no need to do so. This submission is misconceived. The
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spot panchnama is only which is drawn on 14022010.
The incident is such that everything was damaged and
scattered due to explosion. In such a situation it is not
possible or easy to collect the samples from the spot in one
go. The samples required for the forensic examination are
normally collected by the experts and it is clear from the
evidence of the panch witness and the officers that on
18022010 the experts from outside Pune had come and
they collected the samples. Nothing is shown by the
defence that any prejudice was caused to the Accused by
collecting the articles from the spot of incident for second
time on 18022010. Therefore, the said contention is liable
to be rejected.
156] P.W.103, the Investigating officer, in his
evidence have deposed that on 18022010, Colonel Man,
from the National Security Guards and Mr. Gopinath, from
the Hyderabad forensic science laboratory visited the spot
of incident and removed/collected certain articles under
the panchnama at Exh.388 and they told that to cause the
Bomb explosion mobile phone is used as a triggering
instrument and 9 volt battery is also used and in the
articles which were collected by them were indication of the
same. In the cross examination it is brought that the
statements of Colonel Man and Mr. Gopinath were not
186
recorded. They being not the witnesses and being the
experts, recording of their statement is not at all necessary.
The suggestion that no mobile phone is used as a triggering
device to cause the Bomb explosion is denied. Except this,
there is nothing in the cross examination on this point.
Further, the report issued by Colonel Man is brought on
record by the prosecution at Exh.425. Perusal of the same
shows that it is the official communication duly issued and
it is in respect of the German Bakery explosion. It bears
the outward number and the date of issue and also the
endorsement about it's receipt by the office of D.I.G, Anti
Terrorist Squad, Pune. There is no slightest doubt about it's
authenticity. It is also not challenged by the defence. The
relevant part from the said report mentioned under the
caption 'Technical assessment' and subcaption
'Mechanism' is reproduced below:
f] Mechanism Likely remote controlled (likely a mobile phone) as only parts of the mobile phone have been recovered and no parts of any other initiating mechanism has been recovered. Also recovery of these parts from the crater clearly indicate that these parts belonged to the circuit of initiating mechanism which on detonation has pushed these parts deep into the crater. Parts of the mobile phone belonging to the guests cannot be pushed into the crater, hence the investigation leads to the possibility of use of mobile phone as initiating mechanism.
157] P.W.100 Suraj Padvalkar is the witness having
187
mobile repairing shop in the Sagar Archade, Good Luck
Square, Deccan, Pune. He is having the experience of 12
years in the work of repairing mobiles. His certificate about
completing the mobile repairing course successfully in first
class is placed on record at Exh.395. He deposed that he
was having knowledge about different components of
mobile phones and as requested by the Anti Terrorist
Squad for identifying the component of mobile, he went to
the forensic science laboratory Pune where the half burnt
mobile parts were kept on table and he identified one
plastic back cover of mobile phone of Nokia 1100 Model and
accordingly informed P.W.103 Mr. Satav. He identified
article 63A which is the back cover of mobile phone as the
same back cover of Nokia 1100 model identified by him at
that time. According to him, the Nokia 1100 model was
having torch light, battery back up, loud alarm and ring
tones. It would not be out of place to mention that this
article 63A is from the article 63 which were collected from
the spot of incident on 18022010. In cross examination it
has come that the phone parts of different companies were
kept on the table in forensic science laboratory and it was
not written on article 63A that it was of Nokia 1100 model
nor there was any mark to show that it belonged to Nokia
company. Evidence of this witness shows that by pointing
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the notches of article 63A, this witness demonstrated by
showing the fresh piece/ back cover of fresh Nokia Mobile
and stated that it is identical to that of article 63A. In cross
examination it has been stated by this witness that on the
basis of notches at article 63A, he is saying that it is of
Nokia 1100 model. From the cross examination it is seen
that there is no challenge to the experience of this witness
in the field of handling and repairing mobile phones. It is
not unnatural for any person to identify a particular object
on the basis of his experience. There is no challenge or
suggestion in the cross examination that the notches of
back cover of all the mobile phones, irrespective of the
company are identical. It is quite possible that on the basis
of considerable experience at his command, this witness
identified article 63A as that of Nokia 1100 Model. There is
nothing to show that this witness was under the influence
of police or puppet in the hands of police. The evidence of
this witness is very natural and nothing is there to
disbelieve him. His evidence that the backside of mobile
phone at article 63A is that of Nokia 1100 model, is
accepted.
Thus, this circumstance is proved by prosecution
beyond reasonable doubt.
158] From the above evidence and material on
189
record, it becomes crystal clear that the explosion at
German Bakery is caused by using the mobile phone as a
triggering device. In this fact situation or circumstance, the
purchase of mobile phone of Nokia 1100 by the Accused
from Mumbai by unaccounted transaction assumes
importance and become relevant.
9] Keeping the Mobile phones with others in Mumbai and Aurangabad, prior to the incident of explosion at German Bakery, to mislead the presence. It is already seen that the Accused had come to
Mumbai on 08022010 on the travel ticket issued in the
name of Samad Indori (P.W.92) and checkedin the Al
noor Guest House,Crawford Market, Mumbai and
purchased the unaccounted mobile phone from Manish
Market, Mumbai. To prove that the Accused kept his
mobile phone in the custody of his friends the prosecution
is relying on the evidence of P.W.97 Mohammad Ansari and
P.W.95 Shakil Ahemad.
159] P.W.97 is the same witness whose some part of
evidence is considered in the circumstance about the
association of the Accused and the mind set. He is from
Beed and resides in Mumbai. In his evidence he deposed
that on 08022010 Accused gave a missed call on his
mobile phone and so, he called him back and Accused
190
asked him to come at hotel Gulshan Irani situated near
Manish Market, on M.R.A Marg, Mumbai and so, he went
there at 9.00p.m and the Accused came to him in hurried
manner and gave two mobile phones to him and told him
that he had taken loan and people were troubling him for
the same and therefore, he was keeping his mobile phone
with him and told that he will take back the mobile phones
after 23 days. He further deposed that Accused told him
to keep the mobile phones in operation mode. He further
deposed that thereafter on 11022010 Accused came to his
room and took back his mobile phones and told that he
was going to Aurangabad and when asked him to stop as
the next day was holiday, the Accused told him that he was
having some urgent work and he was going to Aurangabad
and so he accompanied the Accused till the Bus and
Accused left by one private Luxury Bus. In the cross
examination it is not disputed that this witness is from
Beed and studied with the Accused in same school. Since
the mobile phones were merely handed over by Accused to
this witness, there is no reason for the witness to know or
keep in mind the mobile numbers of the Accused. It is not
expected that this witness should know as to where the
Accused had stay put in Mumbai between 8th and 11th
February, 2010 as his meeting with the Accused was very
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brief just to hand over and take back the mobile phones. It
is pertinent to note that the entry at Exh.281 in the
article 35 register of the Alnoor Guest house shows
that in the evening of 08022010 the Accused had
checkedout from the guest house. This go to show that the
Accused left Mumbai in the night of 8th February,2010. In
the cross it is brought that this witness accompanied
Accused at Dadar to see him off, from where the Accused
had gone to Aurangabad and reached there in the morning
of next day i.e 12102010. This shows that the Accused
had again come to Mumbai and collected his mobile
phones. The cross examination have in fact given force or
backingto the prosecution's case that on 11th February,
2010 Accused left Mumbai by bus for Aurangabad.
160] P.W.95 is the witness who got acquainted with
the Accused in the Dars (religious discourse) at Parbhani
in June/July 2007 and knows the Accused by name Yusuf.
Some part of his evidence is considered while dealing with
the circumstance of the Accused residing in Udgir by
assumed name. In his evidence it has come that he was in
contact with the Accused telephonically whenever Accused
used to come at Aurangabad. He deposed further that on
12022010 Accused came to Aurangabad and met him
and told that he was required to return the money to some
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persons and the said persons were troubling him by
making phone calls and therefore, he wanted to keep his
two mobile phones with him and further asked him to keep
the mobile phones functioning and also told that in case
anyone calls on the mobile phones, he should tell them
that he had gone out. He further deposed that the Accused
further told him that in case the mobile phone received
missed call, he should call back on the said number and
tell that he had gone out and thereafter the Accused left. In
the cross examination it is brought on record that since the
Accused came to him and requested to keep the mobile
phones he kept with him. Again, not knowing the mobile
number of Accused by this witness is quite natural because
the mobile phones were only given to keep with this
witness. Due to the saving of mobile numbers in mobile
phones people are not in the habit of keeping in mind the
mobile numbers of all the persons they know. In the cross
examination the aspect of the Accused keeping his mobile
phones with this witness is not seriously challenged. From
the evidence of this witness it is established that on 1202
2010 the Accused had come to him at Aurangabad and
handed over his mobile phones to him and left.
161] From the evidence of the aforesaid witnesses,
the prosecution have established that in Mumbai Accused
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had kept his mobile phones with his friend P.W.97 and
from there he came to Aurangabad and again kept his
mobile phones with his friend P.W.95, prior to the incident.
Thus, this circumstance is proved by the prosecution
beyond reasonable doubt.
10] Seen with the planter of Bomb in Pune shortly before the explosion.
To prove this circumstance the prosecution is relying
on the evidence of P.W.90 Ranjit More and P.W.93 Shivaji
Gaware. The crucial evidence is that of P.W.93.
162] P.W.90 is the witness who was present in the
German Bakery just before the explosion, with his
girlfriend. He proved to be lucky. After the explosion the
messages were flashed on the mobile phones and so this
witness went to the office of Crime Branch where he was
shown the CCTV footage of German Bakery in which he
identified himself, his girlfriend and the person carrying
two bags on his person and wearing a cap. It has come in
his evidence that for placing the order he had gone to the
counter of the German Bakery and by taking the order
came to the Bakda (Bench). He deposed that he remember
that there was one boy standing behind him near the
counter and he was having two bags. To the question put to
him by the Ld. Spl.P.P as to how could he was able to keep
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the said person in mind, he deposed that before going to
the counter for placing order, he kept his bag on the Bakda
and he was wondering as to how that person had come to
place the order along with two bags. While recording the
evidence this witness was shown the article 61 C D having
the relevant clippings of German Bakery and hotel 'O' and
he identified himself standing alongwith his girlfriend at
the counter and behind him the boy wearing cap having
two bags on his person and identified the said boy going
outside the German Bakery with only one bag. In cross
examination it has come that he was present at the
German Bakery for 30 to 35 minutes and the Bomb
explosion had occurred after he left. This much time is
sufficient to keep in mind the circumstance. The colour of
the cap which the said boy was wearing and the colour of
bags which the said boy was having on his person is
brought on record by the defence as light green cap, light
green bag and black bag. It is brought that in his statement
before the police he had not stated that after the boy left
German Bakery, he was having only one bag. The same
cannot be termed as omission as the said aspect was told
by him only after viewing the CCTV footage and nowhere
claimed that he saw the said boy personally while leaving
with one bag. There is absolutely nothing in the cross
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examination to caste doubt on his credibility. His evidence
is corroborated by the CCTV footage which are recorded in
the regular course of functioning.
163] P.W.93 is the Auto rickshaw driver who ply his
auto rickshaw in Pune city in the areas of Koregaon Park
where the German Bakery is situated, Pune Station, Camp
and Yerwada. In his evidence he deposed that on 1302
2010 at around 4.00p.m. when he was present in his auto
rickshaw opposite hotel Sagar near the Pune Railway
station, two boys out of which one was tall with fair
complexion and wearing cap and was having two bags
hanging on his person, one in the front and the other on
the back side and the other boy was of average height
having normal complexion, had come to him and hired his
auto rickshaw for going to the Rajneesh Ashram in the area
of Koregaon Park and so, he carried them in the auto
rickshaw and after traveling at some distance the said two
boys asked him to stop the rickshaw near the Central Mall
and when he told that Koregaon Park was ahead they said
that they wanted to get down at that place and so he
stopped his auto rickshaw and both of them got down from
the Auto rickshaw and paid him the tariff. He identified the
Accused as the same person who was accompanying the
person wearing cap and having two bags on his person,
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who traveled in his auto rickshaw on13022010. While
recording his evidence CD at article 61 having relevant
CCTV footage from the German Bakery and hotel 'O' was
shown to him and from the recording, he identified the
person wearing cap and having sack bags on his person as
the same person to whom he had dropped in his auto
rickshaw with Accused. His evidence show that after
looking to the news item having the photograph of one
suspect in the German Bakery Bomb explosion which was
published in the newspaper dated 25052010, he
remembered that the person seen in the photograph was
the same to whom he had dropped in his auto rickshaw on
the day of explosion and so he went to the Police station on
27052010 and gave the information and the police
recorded his statement. His evidence further show that
pursuant to the letter at Exh.379 he was called at Yerwada
Central Prison for the purpose of Test Identification Parade
on 03102010 and accordingly he went there and amongst
the nine persons standing in one line, he identified
Accused as the same person to whom he had dropped in
his auto rickshaw alongwith the person wearing cap and
carrying sack bags. In cross examination it is not disputed
that he is the rickshaw driver. It has come that during one
day he ferry 30 to 40 passengers in his auto rickshaw. It is
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true that normally there can be no reason for the auto
rickshawalas to keep in mind the identification of the
passengers. However, in cross examination this witness
deposed that in case any special thing happens, the face of
passenger remains in memory. It has also come in the
cross examination that the police had made the Appeal to
the public for giving information in connection with the
Bomb explosion. Therefore, his going to the Police station
after seeing the photograph of the suspect in German
Bakery Blast case, printed in newspaper is quite natural
and probable. It has come in the cross that there is no auto
rickshaw stand in front of hotel Sagar which is situated in
front of Pune Railway station. However the witness have
deposed that the auto rickshaw do stand there for a minute
or two. It is common knowledge that in the cities and
particularly in big cities like Pune, the auto rickshaws halt
even at the places where there is no earmarked rickshaw
stands. It is tried to be brought that there are more than
one way from Pune Railway station for going to Rajnish
Ashram (Koregaon Park) and the witness was asked as to
why he had taken the said two persons from another route.
To this, the witness deposed that there is no much
difference in the route suggested by the defence and the
root by which he had taken them. It is usual that the
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autorickshawalas or taxiwalas take the passengers to their
destination by the longer route to fetch more fare. It is also
usual and normal that the autorickshaw walas read the
newspapers in the autorickshaws while at halt, therefore, it
is quite natural that this witness came across the news
item published in the the paper. Non seizure of the
newspaper which this witness read on 25052010, by no
means is fatal for the prosecution as in any case, it would
not be admissible in evidence. This witness not going to the
Bandgarden Police station but, going to the Anti Terrorist
Squad office is also not strange because in the cross
examination itself it has come that the Appeal was made by
the police to the public to give the information regarding
the Bomb explosion. When such appeal is made to the
public in general by the police machinery, the contact
address and the phone numbers are also published. As
regards going to the police station after two days after
seeing the photograph in the newspaper, the explanation
has come in the examination in chief itself where he
deposed that since he could not gather the courage to go to
the police immediately on 25052010, he went to the Police
on 27052010 after thinking. He denied that the
photograph of the Accused was shown to him prior to the
Test Identification Parade. He denied that since he ply the
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auto rickshaw and having good relations with police, he
deposed at the instance of police.
164] According to the defence, this P.W. 93 is the
got up witness. Admittedly, the news item in respect of
German Bakery explosion case with the photograph of the
suspect was published in the newspaper dated 25052010.
The appearance given by this witness in respect of one of
the passengers amongst two, was wearing cap and having
two sack bags on his person which makes the appearance
remarkable and different from the appearance of people we
generally see around us. The said two passengers engaged
his rickshaw for going to Osho Ashram but, asked him to
drop them before their destination and they got down at
Central Mall. The time at which he dropped the said
passengers was the day time. While talking to them at the
time of hiring the auto rickshaw and thereafter taking
money after they got down from the auto rickshaw, this
witness had the opportunity to see the facial features of
those passengers. All this clearly go to show that there was
no fleeting glance of the said passengers by this witness
but he had the opportunity to see them properly. In these
Circumstances, his identification of the Accused creates no
doubt. His identification in the court is corroborated by the
previous identification in the Test Identification Parade. The
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Test Identification Parade memorandum is already on
record at Exh.369 and while considering the evidence of
P.W.88 from whose shop the mobile phone is purchased by
Accused, it is observed that the Test Identification Parade
was held in accordance with the guidelines. Though
entitled to call the officer who had conducted the Test
Identification Parade for the purpose of cross examination
under the provisions of Section 291A of Cr.P.C, the same is
not done by the defence and so, the Test Identification
Parade memorandum remains unchallenged. Not showing
the clippings to this witness at the Anti Terrorist Squad
office when he had gone there after reading the newspaper
is not fatal because this witness had gone there only after
seeing the photograph of the suspect published in the
newspaper. The aspect that this witness ply the auto
rickshaw in the areas told by him in the examinationin
chief has also remained unchallenged. Further, the
Accused is arrested much after the date on which this
witness had gone to the Anti Terrorist Squad office and
gave the information and his statement was recorded.
Therefore, the submission that P.W.93 is the got up witness
has no force. There is no reason for this witness to depose
false. Though cross examined by the defence, the evidence
of this witness has remained unshaken. The evidence of
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this witness is accepted.
165] P.W.103 Vinod Satav, who is the Investigating
officer of this case have also deposed that on 27052010
P.W.93 had come to his office after the news was published
in the newspaper dated 25052010. While considering the
Point No.2, his evidence to the effect that separate clips of
the CCTV footage of hotel 'O' and German Bakery were
prepared and the relevant clippings were in article 61 CD is
already considered. The defence wanted to suggest as can
be seen from the cross examination of the witnesses that
since there was the wall at the compound of German
Bakery it was not possible that the persons on the road
would get captured in the CCTV Cameras of hotel 'O'. For
this, the evidence of P.W. 43 who was the I T Manager of
hotel 'O' (which is considered under the head authenticity
of the electronic record), is relevant. In his evidence it has
clearly come that the CCTV cameras installed at hotel 'O'
are having the capacity to capture the image situated at
the distance of 100 fts and they are the Zoom in cameras
and the said CCTV cameras cover the complete view of the
road and it covers one side of German Bakery which has
the rickshaw stand. Thus,the said submission of the
defence melts down to insignificance.
166] P.W.96 Shaikh Nazir is the witness from Udgir
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who know the Accused by name Hasan and got acquainted
with him in October 2009. In his evidence he deposed that
at the instance of Accused he had come to Pune on 31st
January, 2010 to attend the program of the launch of
party by name Popular Front of India and the Accused
had left for some time and came back in the evening. The
evidence of this witness except showing that he was
knowing the Accused by name Hasan, do not appear to be
material in establishing the case of prosecution. In cross
examination he deposed that on 13022010 he had gone to
Aurangabad for giving the examination of the lab
technician which was to be held on 14022010 and further
deposed that the Accused met him in between 8.30p.m. to
9.30p.m. He further deposed that in between 5.00p.m. to
6.00p.m he phoned the Accused and Accused told him
that he was in reception. He further deposed that the said
reception was at Aurangabad but he had not gone there
and further deposed that he had gone to the place of
reception but the reception was over. From this cross
examination it is submitted by Ld. defence Advocate that
on the day of explosion the Accused was at Aurangabad in
reception and so, it is not possible that the Accused had
come to Pune with the absconding Accused just before the
explosion. If the cross examination of this witness is
203
considered, he does not appear to be reliable witness. The
phone call details of the mobile phones used by the
Accused are on record at Exh.355(collectively) and
349(collectively). Perusal of the phone call details at
Exh.355 do not show that there was any incoming call on
the phone in between 5.00p.m. to 6.00 p.m. on 13022010.
Perusal of phone call details at Exh. 349(collectively) do not
show any call either outgoing or incoming between
5.00p.m. to 6.00p.m on 13022010. Therefore, had really
this witness phoned and talked to the Accused,there would
have been the entry of incoming call in the phone call
details. Absence of such entry in the phone call details,
falsifies the evidence of this witness. In such circumstances
the entire evidence of this witness should be discarded and
is discarded.
167] From the evidence of P.W.102, it has already
been established by the prosecution that the person
wearing cap seen entering the German Bakery with two
bags, seen at the counter of German Bakery and leaving
German Bakery with only one bag in the CCTV footage is
none other but, absconding Accused Yasin Bhatkal.
Through the evidence of P.W.90 and P.W.101 it is
established by the prosecution that the said relevant CCTV
footage in which Accused Yasin Bhatkal is seen, is that of
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13022010 and just prior to the explosion. Through the
evidence of P.W.93 the prosecution have further established
that the Accused was seen with absconding Accused
Yasin Bhatkal in Pune shortly before the explosion.
Thus, this circumstance is proved by the prosecution
beyond reasonable doubt.
168] It is submitted by Ld. defence Advocate that
there is no reason to cause the explosion at the German
Bakery and if at all the Accused wanted to cause explosion
they would have done it at the Central Mall where they got
down from the auto rickshaw. For this the answer lies in
the evidence of P.W.103 who is the Investigating officer. It
has come in his evidence that the German Bakery is in the
area of Koregaon Park, Pune and nearby there is a place for
offering prayers for the Jews which is called as Chabad
House and nearby there is a Osho Ashram and at both
these places the foreigners come in large number who also
come to German Bakery. It is well known that in the malls,
no entry is given without security check and the bags are
not permitted inside and therefore, such place would never
be selected by any one to commit such crime for the reason
that they would be caught even before entering the
premises. Admittedly German Bakery is not the place like
mall and it has clearly come in the evidence of security
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guard who is examined as a witness, that they do not check
the belongings of the customers. For all these reasons it is
obvious that the German Bakery is selected as the target.
169] It is further contended by Ld. defence Advocate
that judicial note be taken of the aspect that the DIG,
A.T.S, Pune Region had given the statement to the media
that the Accused had not come to Pune on 13022010. In
cross examination P.W.103 have deposed that he was not
aware that such statement was made by the then D.I.G Mr.
Ravindra Kadam to Media. He denied that due to such
statement, he was transferred to Gadchiroli. The contention
of the Ld. defence Advocate is liable to be rejected firstly for
the reason that it is not such a aspect of which judicial
notice can be taken and secondly, whether the Accused
had come to Pune on the said date is to be decided only on
the basis of evidence on record and not on the basis of
media reporting.
11] Accused looking tired in the night of 13022010.The Prosecution's further case is that after the
explosion the Accused had collected his both mobile
phones from his friend from Aurangabad and at that time
he was looking exhausted. It is already discussed that the
Accused had kept his mobile phones with P.W.95 Shakil
Ahemad at Aurangabad on 12022010 and told him to
206
keep his mobile phones in functioning mode and he should
call back in case the phone receives the miss call and also
to receive the phone calls and tell that he had gone out.
170] Further, in his evidence P.W.95 deposed that in
between 10.00p.m. to 10.30p.m. Accused came to him and
took both his mobile phones and at that time he was
appearing to be tired and when he asked the Accused as to
why he was looking tired, Accused told him that he had
come traveling on the bike from long distance. In cross
examination he deposed that by the S.T. bus the distance
between Pune and Aurangabad may be covered in 5 to 6
hour's time and by 'Volvo' the time of 4 hours may
consume. He deposed that since he had not traveled the
said distance by motorcycle, he cannot tell as to how much
time would be consumed in traveling between the said two
cities on bike. In cross it is brought on record that in the
police statement he stated that the Accused had come to
him on 13022010 at about 10.00p.m. From this cross
examination it is firmly established that the Accused had
come to this witness for collecting his mobile phones in the
night of 13022010 between 10.00p.m. to 10.30p.m. He
denied the suggestion that the Accused had not come to
him for collecting the mobile phones.
171] It is further submitted by Ld. defence Advocate
207
that the evidence of P.W.81 who is the Nodal officer of Tata
Docomo, shows that in the evening of 13022010, phone
call was made from the mobile used by the Accused
(8149308626) and the phone call details show the location
as the Aurangabad switch and so, the prosecution case
gets demolished that the Accused was in Pune on
13022010. In cross examination of P.W.81 it is brought
that from mobile No.8149308626, phone call was made on
mobile No.9028131619 at 17.54.49 hrs. from the
Aurangabad switch. The said evidence of P.W.81 is based on
the phone call details at Exh.355(collectively). When the
prosecution by examining P.W.95 have established that the
Accused had kept both his mobile phones with him on
12022010 and they were taken back in between 10.00p.m.
to 10.30p.m. on 13022010, the record of phone call
details is not sufficient to disprove the case of prosecution
that the Accused was not in Pune on 13022010. It has
categorically come in the evidence of P.W.95 that the
Accused told him to receive the calls and also to call back
if missed calls are received on his mobile phones. It is
quite possible that P.W.95 may have followed the said
instructions given by the Accused. It is already observed
above that the evidence of P.W.95 remained unaffected
though cross examined by the defence.
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172] From the evidence of P.W.95 it is established by
the prosecution that the Accused had come to him
between 10.00p.m. to 10.30p.m. on 13022010 and at that
time he was looking tired and told him that he had come
from long distance on the motorcycle. When the distance
between Pune to Aurangabad can be covered in 4 hours by
the Volvo bus, the said distance in all probability can be
covered in less than four hour's time by motorcycle. It has
already come while discussing point No.1 that the explosion
had occurred at the German Bakery in between 6.50p.m. to
7.00p.m and the Accused was seen with the wanted co
accused Yasin Bhatkal by autorickshawala (P.W.93) around
4.00p.m. Looking to these timings, evidence of this witness
further gets fortified.
Thus, the prosecution have established this
circumstance beyond reasonable doubt.
12] Using sim cards issued in the name of other persons In his evidence P.W.103, Investigating officer have
deposed that it was revealed that Accused used the identity
cards of different persons and obtained phone sim cards.
To establish this circumstance, the prosecution is relying
on the evidence of P.W.86 Ajmat Khan, the phone call
details at Exhs.355 (collectively) and 349 (collectively), the
panchnama in respect of seizure of articles at the time of
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arrest of the Accused, the panchnama in respect of seizure
of two bags belonging to the Accused, having various
articles, P.W.82 Vanmala Avrale, P.W.83 Ramrao Nautakke,
P.W.84 Sanjay Biradar, P.W.85 Mukund Kulkarni and
P.W.89 Vilas Garibe.
173] P.W.86 is the resident of Udgir having his shop
under the name and style 'Mobile Campus' in the Udgir
Nagar Parishad. According to him at the time of Christmas
festival in the year 2009, there was offer for getting sim
card of Tata Docomo company and the person by name
Sabir Mamu who is known to him had come with the
Accused to his shop and he was told that Accused was in
need of the sim card and so he gave one sim card alongwith
the form to them and after half an hour, they brought the
form after filling it. This witness deposed that when he saw
the form, the information was filled in and the photograph
which was pasted on the form was not of Accused and so
he told Sabir Mamu about the same. He further deposed
that by keeping faith on Sabir Mamu, he accepted the form.
This witness identified Accused as the same person who
accompanied Sabir Mamu to his shop and submitted the
sim card application form having photograph of different
person. He further deposed that on 10092010 the police
had come for inquiry in respect of the sim card alongwith
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the Xerox copy of the Application form, meant for getting
the sim card and the said form was of Tata Docomo
company having the stamp of his shop. In cross
examination it is not disputed that he was doing the
business of sim card. It is well known that the service
providers introduce the schemes for selling the sim card of
their company to the public through the regular shop
keepers/ traders. Since the Application form submitted by
the customer contains the required information and also
the photograph, it is not unnatural that this witness did
not maintained the register in respect of giving sim cards to
the customers. It has come that he was not knowing the
Accused but since Sabir Mamu was with the Accused, he
gave the sim card and accepted the form. Many a times by
keeping faith on the known persons, the transactions are
done with the persons who are not known. In cross it has
clearly come that since last many years this witness was
knowing Sabir Mamu. It has also come in the evidence of
this witness that he had seen the Accused in the Global
Internet Cafe. The cross examination done by the defence
could not affect the evidence of this witness given for the
prosecution. From this witness the prosecution have
established that he had given the sim card of Tata Docomo
company to the Accused by accepting the Customer
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Application form having photograph and information of
different person. It is pertinent to note that at the time of
arrest of Accused and his personal search, the sim card of
Tata Docomo company is seized and the phone call details
of the same are at Exh.355(collectively), which shows that
the said sim card was registered in the name of Mukund B
Kulkarni (P.W.85).
174] The said Mukund B Kulkarni is also
examined by the prosecution as P.W.85. He deposed that
on 29102010 the Police had come to him for inquiry in
respect of sim card issued in his name but, used by
another person and the police pointed the copy of
Application form having his name and information, meant
for sim card of Tata Docomo company and Xerox copy of his
election card. He deposed that he never filled the
Application form for getting the sim card of Tata Docomo
company and never gave his photograph and xerox copy of
election card to any person. He deposed that he was not
aware as to how the same had come in possession of police.
In cross examination it has come that in his statement
before police he had stated that he had given his election
card to his brother Mahesh for getting the xerox copy. His
evidence that he never filled the customer Application form
for getting the sim card of Tata Docomo company remained
212
undisturbed.
175] P.W.82 is the resident of Udgir and in the year
2010 as she wanted to purchase the mobile phone for her
father, she had gone to the shop by name 'Mobile Campus'
situated in the Nagar Parishad, Udgir and submitted the
election I card and photo of her father. She deposed that
the sim card which was provided to her did not started
functioning and so, she had gone to the said shop where
she was told that it will start working in 23 days and when
thereafter she went to the shop because the sim card did
not started working, she was told that there was theft in
the shop and she did not received the election I card and
photo of her father. Her evidence shows that on 26092010
the Anti Terrorist Squad officer went to her for inquiry and
pointed the Xerox copy of her father's election I card. She
identified article 31/3 as the same Xerox copy of her
election I card. In the panchnama at Exh.264 in respect of
seizure of various documents from the bag belonging to
Accused, at Sr. No.49 there is a reference about seizure of
this article 31/3. Her evidence further shows that she was
confronted with P.W.86 Ajmat Khan and she identified him
as the shop keeper from where she got the sim card. Thus,
her evidence becomes relevant. Cross examination shows
that she did not reported to the police against the shop
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keeper. It appears that for the first time she deposed
about the theft in the said shop. Her evidence about going
to the mobile shop and submitting the election I card and
photo of her father for getting the sim card is not affected
by the cross examination. Not reporting the matter to the
police against the shop keeper can be no reason to discard
her evidence.
176] P.W.83 is the agricultural Supervisor and in
connection with his work he was required to go at Udgir.
His Pan card was lost and since he came to know that Pan
card was made available at the 'Global Internet', Udyog
Bhavan Nagar Parishad, Udgir he went there and paid
Rs.250/, and submitted the passport size photo and xerox
of election I card for the purpose of getting Pan card issued
in his name. It has come that he was told by the person
called Najeeb who was present there to come after 10 to 12
days and when he had gone to collect his Pan card, he was
told that it would be ready in 4 to 5 days and when he
again went there to collect the same, the said person was
not there. He deposed that on 26092010 the Anti Terrorist
Squad Police came to him for inquiry and showed the xerox
copy of his I Card and he identified the same. He deposed
that article 31/4 was the same xerox copy of his election I
card. In the panchnama at Exh.264 in respect of seizure of
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various documents from the bag belonging to Accused, at
Sr.No.52 there is a reference about seizure of this article
31/4.Thus, evidence of this witness becomes relevant. In
cross examination he stated that he did not lodge the
complaint with the police in respect of missing of the Pan
card. The only omission in his statement is in respect of
the name Global. It has come that no receipt was issued to
him for payment of Rs. 250/ at the Global Internet. Not
lodging the complaint for not getting the Pan card from the
internet cafe is not strange or unnatural because the
amount paid by him was very small.
177] P.W.84 is the Library Asst. residing at Udgir. In
September, 2009 he decided to get the Pan card and for
that purpose visited the Global Internet situated in Nagar
Parishad, Udgir since he came across the advertisement
published in that regard. There he paid Rs. 200/ and gave
the xerox copy of election I card and one photograph for
getting the Pan card. However, he did not receive the Pan
card. He identified the Accused as one of the person
present in the said Internet cafe. He deposed that on
26092010 the Anti Terrorist Squad police had come to
him for inquiry and showed the Xerox copy of his election I
card and he identified the same which he had submitted in
the said Internet Cafe. He identified article 31/5 as the
215
copy of his election I card. In the panchnama at Exh.264 in
respect of seizure of various documents from the bag
belonging to Accused, at Sr. No.51 there is a reference
about seizure of this article 31/5.He deposed that his
photograph and xerox copy of his election I card which he
had submitted in the said Global Internet Cafe may have
been misused. Thus, the evidence of this witness becomes
relevant. In cross he deposed that no receipt was taken by
him towards the payment of Rs. 200/ made at the Internet
Cafe. Since the amount paid by him was not much, not
lodging the complaint against the internet cafe is not
unnatural. He admitted that he had no transaction with
Accused. Not remembering the date on which he had given
money, xerox copy of election I card and photograph in the
internet cafe, is natural.
178] From the above evidence it is clearly
established by the prosecution that the documents which
the aforesaid witnesses had submitted for getting the sim
card or Pan card were found from the bag belonging to the
Accused which were seized by the police under the
panchnama at Exh.264. This cannot be a co incident that
the documents of the all said witnesses were found in the
bag belonging to the Accused. It has already come in the
circumstance No.1 that Accused was having the Internet
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Cafe at Udgir by the name 'Global Internet Cafe' Evidence
of all the aforesaid witnesses becomes relevant. There is no
explanation by the Accused in this regard. The only
irresistible conclusion which comes out is that the xerox
copy of documents of the said witnesses were retained by
the Accused for obtaining various sim cards.
This circumstance is proved by the prosecution
beyond reasonable doubt.
12] Having in possession the forged documents.
Further, it is deposed by P.W.103, the Investigating
officer that the documents such as certificate of handicap
person, caste certificate, ration card, certificate of residence
and driving licence which were found in one of the bag
belonging to the Accused were sent for verification to the
concerned agencies and the said documents were found to
be forged. The panchnama in respect of seizure of various
documents from the bags belonging to the Accused is at
Exh.264 and perusal of the same shows that the aforesaid
documents were found in one of the bag belonging to the
Accused, seized from P.W. 92 Shaikh Gaus, in whose
tutorials the Accused was teaching.There is evidence of
two panch witnesses P.W. 57 Abhijit Dalvi and P.W. 59
Mobin Shaikh to show that the documents which were
217
seized from one of the bag belonging to the Accused and
kept separately in envelopes, were opened in presence of
these panch witnesses. The evidence P.W.57 shows that
four packets were opened in his presence under the
Panchnama at Exh.266 and the evidence of P.W.59 shows
that one packet was opened in his presence under the
Panchnama at Exh.277. Both the said panch witnesses
identified the Panchnamas and the documents. If the cross
examination of these panch witnesses is seen, nothing is
there to show that they were the regular panchas of the
police. Prosecution evidence cannot be discarded merely
because all the packets were not opened at the same time.
To establish this circumstance, the prosecution is
relying on the evidence of P.W.61 Renukadas Dhanorkar,
P.W.62 Mahesh Deshmukh, P.W.65 Prabhoday Mulay and
P.W.66 Vyankati Nilawad.
179] P.W.61 is the Superintendent, Social Welfare
Department, Zilla Parishad, Nanded. From his department
the I Card is issued for physically handicap persons and
the register in that regard is maintained in regular course
of business in their office. The article 31/1 blue colour
Identity card was sent to him for verification by the Anti
Terrorist Squad vide letter at article 37 and after
verification he submitted the letter at Exh.276 to the Anti
218
Terrorist Squad stating that the said article 31/1 was not
issued by their office and the stamp and the signatures on
the same did not match with the record of their office. In
the panchnama at Exh.264 in respect of seizure of various
documents from the bag belonging to Accused, at Sr. No.46
there is reference about seizure of this article 31/1.Non
seizure of the register from their office is of no
consequence. Cross examination of this witness could not
affect his evidence.
180] P.W.62 is the Inspector of Motor vehicle, RTO
Ambejogai and the Anti Terrorist Squad made inquiry
about the Blank Forms meant for issuing the driving
licence having the stamp of Deputy RTO, Ambejogai. This
witness verified the stamps on the said Blank forms which
are article 31/2 and found that the stamps did not match
with the stamps of their office and accordingly he informed
the Anti Terrorist Squad by a letter at Exh.279. In the
panchnama at Exh.264 in respect of seizure of various
documents from the bag belonging to Accused, at Sr. No.55
there is a reference about seizure of this article 31/2. In
cross he denied that the printed forms for getting licence
are supplied by putting the stamp of their office. He
admitted that Blank form is of no use. Though this witness
have not taken the training for making the stamps he
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stated that by working daily in the office he can make out
the difference between the stamp of their office and other
stamps. From the evidence of this witness it is established
that the stamps on the blank forms of RTO at article 31/2
are not genuine.
181] P.W.65 is the Tahsildar of Beed since
24092010. In December 2010 he received two letters from
the Anti Terrorist Squad Pune inquiring about the caste
certificate of Accused and about the Xerox copy of one
Ration card. This witness verified the genuineness of the
said documents from his office record and found that both
the said documents were not issued by their office as there
was no entry in their office record in respect of the said
documents. He informed the Anti Terrorist Squad
accordingly by letters at Exh.285 and 286. The caste
certificate is at article 28/1 and the xerox copy of Ration
card is at article 28/2 which are referred in the panchnama
at Exh.264 in respect of seizure of various documents from
the bag belonging to Accused. At Sr. No.1 and 26 there is a
reference about seizure of these two articles. In cross he
stated that no complaint of misuse of said caste certificate
was received by their office. From cross examination it is
seen that on the said ration card the ration was taken from
the ration shop No.26, situated at Juna Bazar, Beed. Non
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seizure of the stamp of the office of this witness, is not
necessary as the verification of the documents was to be
done on the basis of office record. He denied that the ration
card was genuine. From the evidence of this witness it is
established that the caste certificate issued in the name of
Accused and the ration card issued in the name of his
family are not issued by their office. Merely because the
ration is taken on the false document, the same do not
become genuine.
182] P.W.66 is the Chief officer of Municipal Council,
Beed. The Domicile certificate is issued from his office. The
Anti Terrorist Squad inquired from his office about the
Domicile certificate at article 28/3 and after verifying the
office record, he informed by letter at Exh.290, that the
said Domicile certificate was not issued by the Municipal
Council Beed. In the panchnama at Exh.264 in respect of
seizure of various documents from the bag belonging to
Accused, at Sr. No.25 there is a reference about seizure of
this article. In cross examination he stated that no
complaint was received by their office in respect of said
Domicile certificate. Non seizure of register of his office
would not affect his evidence since he informed in writing
about the genuineness of the said Domicile certificate and
being the Government officer, there is no reason for him to
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state false. From the evidence of this witness it is
established that the Domicile certificate at article 28/3
found in the bag of Accused was the false document.
183] It is submitted by Ld. defence Advocate that
there is no evidence that the forged documents were
prepared by the Accused within the jurisdiction of this
court and therefore, in view of provisions of Section 177 of
Cr.P.C he cannot be tried for the offence of forgery. As per
the said Section, every offence shall ordinarily be inquired
into and tried by a Court within whose local jurisdiction it
was committed. This contention was also raised by the
defence at the time of framing Charge and the same was
considered in the light of decision of the Honourable Apex
Court in the case of Purushottamdas V/s. State of West
Bengal, reported in AIR 1961 Supreme Court 1589, though
the said observations pertains to the old Cr.P.C (1898),
wherein it is observed that, the Court having jurisdiction to
try the offence of conspiracy has also jurisdiction to try an
offence constituted by the overt acts which are committed in
pursuance of the conspiracy beyond it's jurisdiction. It is
further observed that Section 177 simply says that ordinarily
every offence would be tried by a Court within the local
limits of whose jurisdiction it was committed. It does not say
that it would be tried by such Court except in the cases
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mentioned in Sections 179 to 185 and 188 or in cases
specially provided by any other provisions of Law. It leaves
the place of trial open. Its provisions are not peremptory.
184] Admittedly, the false documents are found in
the bag belonging to the Accused. simply because the date
on the said false documents is prior to the date of offence
it cannot be conclusively said that they were forged on that
date only and at the place mentioned in the documents.
Document can be forged today by putting previous date.
The evidence on record have established that the Accused
had kept with himself the false documents. Hence the
submission is rejected.
185] From the evidence of all the aforesaid witnesses
it is crystal clear that the Accused was having the false
documents in his possession and he had kept them in his
bag which was seized by the police from P.W. 92 Shaikh
Gaus under the panchnama at Exh.264. Except denial
there is no explanation from the Accused as to how he
came in possession of the said false documents. It is
submitted by Ld. defence Advocate that the prosecution did
not send the said documents to the handwriting expert. In
view of the evidence given by the various government
officers in respect of the said documents, not sending the
documents to handwriting expert is immaterial.
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Thus, this circumstance is proved by the prosecution
beyond reasonable doubt.
186] The prosecution, by laying cogent evidence,
have established that the Accused stayed in Udgir in
assumed names, explosive substance was found in
possession of the Accused, the Accused operated the bank
account of another person, the Accused visited Colombo
and thereafter substantial amount came to be deposited in
the bank account operated by him, the Accused was in
association with the absconding Accused and he was
influenced by the ideology of terrorism, the Accused went
to Mumbai on the bus ticket booked in another's name and
resided in the lodge at Mumbai in assumed name shortly
before the incident, the Accused purchased unaccounted
mobile handset from Mumbai shortly before the incident,
the use of mobile phone as the triggering device in causing
the explosion at the German Bakery, the Accused keeping
his mobile phones with others in Mumbai and Aurangabad
shortly before the explosion at the German Bakery to
mislead his presence, the Accused seen with the
absconding Accused No.1 Yasin Bhatkal who planted the
explosive in the German Bakery shortly before the
explosion, the tired appearance of the Accused in the night
of 13022010, i.e the date on which the explosion took
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place at German Bakery, the Accused used the mobile sim
cards issued in the name of other persons and the Accused
possessing the forged documents. All the circumstances are
proved beyond reasonable doubt. Though the defence had
cross examined the witnesses, nothing material is brought
on record to discard the above circumstances. Taken
together, all the circumstances becomes relevant to
establish the involvement of Accused in the crime.
Conspiracy
187] One of the primary Charge against the Accused
is that of Conspiracy. Section 120(B) of I.P.C is the
provision which provides for punishment for Criminal
conspiracy. Definition of Criminal Conspiracy is given in
Section 120(A) of I.P.C which reads thus:
When two or more persons agree to do, or cause to be done 1] an illegal act, or
2] an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
The Law in respect of the evidence required to
establish the offence of conspiracy is well settled. It would
be proper to refer some of the Judgments of the
225
Honourable Apex Court in that regard.
Mohammad Khalid V/s. State of Bengal, (2002)7 S.C.C 334. In para 17 it is observed thus: ................ Law making conspiracy a crime, is design to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which coconspirator gives to one another rendering enterprises possible which, if left to individual efforts would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all it's members where ever and whenever any member of the conspiracy acts in furtherance of the common design. For an offence punishable under section 120 (B), prosecution need not necessarily prove that the perpetrators expressly agree to do or caused to be done illegal act, the agreement may be proved by necessary implication............... In para 18 it is observed thus:
“ No doubt in case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who have alleged to conspire and the said agreements should be for doing an illegal act or for doing illegal means an act which itself may not be illegal, therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely availalble, therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the Accused. In para 21 it is observed thus:
Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view, Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by
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either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, with the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference.”
In the case of State N.C.T. of Delhi V/s. Navjyot
Sandhu, reported in 2005 (11) S.C.C. 600 the Law on
conspiracy is considered. The relevant paragraphs are
reproduced below.
In Yashpal Mittal V/s. State of Punjab ( 1977 (4) SCC 540). Goswami J speaking for a threeJudges Bench analysed the legal position relating to criminal conspiracy. At pages 610611, the Learned Judge observed that “ the very agreement, the concert of league is the ingredient of the offence” and that “it is not necessary that all the conspirators must know each and every detail of the conspiracy”. It was then observed that “ there must be unity of object or purpose but there may be plurality of means, sometimes even unknown to one another amongst the conspirators”. Dr. Sri Hari Singh Gour in his well known 'Commentary on Penal Law of India' (Vol. 2, 11th Edn. Page 1138) summed up the legal position in the following words:
“In order to constitute a single general conspiracy there must be a common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all it's secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a
227
few, some may drop out and some may join at a later stage, but, the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be general plan to accomplish the common design by such means as may from time to time be found expedient.
Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and it's objects have to be inferred from the circumstances and the conduct of the accused (Per Wadhwa J in Nalini's case (supra) at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and “the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.” G.N.Roy J. in Tanibeeri Pankaj Kumar (1997 (7) SCC 665), observed that this Court should not allow the suspicion to take the place of legal proof. As pointed out by Fazal Ali J in V.C Shukla V/s State (1980 (2) SCC 665) “ in most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence”. In this context, the observations in the case Noor Mohammad Yusuf Momin V/s. State of Maharashtra ( AIR 1971 SC 885) are worth nothing.
“In most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors constitute relevant material.”
A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy.
228
The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused.(vide Esher Singh V/s State of A.P.2004(1) SCC 585)
One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.”
188] The Ld. defence Advocate cited the following
rulings on the point of circumstantial evidence and
conspiracy. State of U.P. V/s. Sukhbasi, A.I.R 1985 S.C.
1224. In that case it is observed that,
“there was no iota of evidence to establish that the three Accused prior to the commission of the offences had conspired together with the Accused Ashokkumar and got forged from him the ruqqa in the name of Kripalsing Munim to secure an entry into the house of the deceased. There was nothing to show that the Accused Ashokkumar had been associating with the other Accused. Further, it is observed that, in a case which the evidence is of circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established, should not only be consistent with the guilt of the accused but they must be entirely incompatible with the innocence of the Accused and must exclude every reasonable hypothesis consistent with
229
his innocence.”
Topandas V/s. State of Bombay, 1956 Criminal L.J. 138. In that case it is observed that by the terms of the definition itself, there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one persons alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. If therefore, four named individuals were charged with having committed the offence U/s. 120(B) Penal Code and three out of these four were acquitted of the Charge, the remaining Accused, who was Accused No.1 in the case before us, could never be held guilty of the offence of criminal conspiracy.
Sanjeevkumar V/s. State of H.P. A.I.R. 1999 S.C. 782. In that case it was held that “there was no iota of material to establish the alleged agreement between the Accused Sanjeevkumar and Accused Kamlesh. In the absence of such evidence, the mere fact that Sanjeevkumar was the nephew of Kamlesh cannot be held to be sufficient to lead to an inference of conspiracy........ .
John Pandiyan V/s. State, 2010 (13) Scale 13. In this case several Judgments on the aspect of conspiracy are considered. The relevant para is reproduced thus: Other celebrated decisions on the question of conspiracy are Yashpal Mittal V. State of Punjab 1977 (4) SCC 540) as also the State of Himachal Pradesh V. Krishan Lal Pradhan and Ors. 1987 (2) SCC 17). It has been held in Mohd Khalid V. State of West Bengal 2002 (7) SCC 334) and in Mohammed Usman Mohd. Hussain Maniyar V.State of Maharashtra 1981 (2) SCC 443) that the agreement amongst the conspirators can be inferred by necessary implication. All these cases together came to be considered in State of NCT of Delhi V. Navjot Sandhu @ Afsan Guru 2005 (11) SCC 600] where
230
even the celebrated Judgments of V.C. Shukla V. State 1980 (2) SCC 665] came to be considered wherein it was observed by Fazal Ali J: “In most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence”.
C.B.I V/s. V. C.Shukla, A.I.R. 1998 S.C. 1406. In this case the prosecution was not able to prove that one of the two Accused was party to conspiracy and it was held that the Charge of conspiracy cannot stand against other Accused as in a conspiracy there must be two parties.
State of M.P. V/s. Paltan Mallah, A.I.R. 2005 S.C. 733. In this case it was observed that overall evidence given by prosecution would only show that some agitation had been going on against management of the Industries and deceased was spearheading many of these agitations and this by itself would not prove prosecution's case of conspiracy. Further, it was observed that no bills proving purchase of foreign made weapons from Nepal were recovered from any of the Accused persons and visit to Nepal by the Accused persons and recovery of a Bill do not advance prosecution case to prove criminal conspiracy alleged against them.
189] From the aforesaid rulings following position
emerges in respect of conspiracy.
i] Gist of the conspiracy is in the agreement.ii] Conspiracy can be proved from inference found on solid facts established by reliable evidence.iii] Direct evidence may not be available always.iv] It is not necessary that all the conspirators must
231
know each other and every detail of conspiracy.v] It is not necessary that all the conspirator should participate from beginning to the end of conspiracy.vi] Conspiracy is a continuing offence and continues to be committed so long as the combination persists.
190] Coming to the case in hand, it is proved that
the explosion at the German Bakery was the terrorist act,
the association of the Accused with the absconding
Accused, the Accused seen with absconding Accused No.1
Yasin Bhatkal who planted the explosive in the German
Bakery, shortly before the explosion and the Accused
possessing explosive substance of the like nature which is
used to cause the explosion at the German Bakery goes to
the root in establishing the involvement of the Accused in
the crime. These circumstances furnishes cogent evidence
pointing the involvement of Accused in the crime. His
purchasing unaccounted mobile phone from Mumbai,
though mobile phone is easily available anywhere assumes
significance because the explosion is caused by use of
mobile phone as the triggering device. The Accused did so
many things to mislead his identity. His keeping the
mobile phones used by him with his friends, his using the
bank account standing in the name of another person, his
possessing the false documents and using the mobile sim
cards issued in the name of others becomes relevant U/s.8
232
of Evidence Act. All the above conduct of the Accused are
most unnatural and has close nexus with the relevant fact
in issue. It is established that all the said acts were
conscious act of the Accused. All the said conduct of the
Accused shows his culpable mind. His subsequent state of
body/mind, after the explosion also becomes relevant
U/s.14 of the Evidence Act. He has the revengeful attitude
and dangerous ideas about the religion. The circumstances
cannot be viewed separately and by no standard of common
sense/understanding be termed as innocent acts. The
conduct of Accused point to his guilt and involvement in
the conspiracy. All the circumstances taken together forms
a complete chain which links him with the incident of
explosion at German Bakery. The only defence is that of
false implication being a Muslim. The evidence available on
record is such that by no stretch of imagination it is
possible to hold that the evidence is fabricated to implicate
him falsely. Many of the witnesses are the persons who
know the Accused, though in assumed name and there is
nothing to show that even a single witness have any grudge
or enmity with the Accused or they had any motive to
depose falsely against the Accused. Absence of any
plausible explanation from the Accused in respect of the
circumstances brought by the prosecution against him
233
becomes one more circumstance against the Accused. One
of the contention of the Ld. defence Advocate is that he had
no motive to commit the crime or to be the part of the
conspiracy. In this regard it would not be out of place to
refer the observations of the Honourable Apex Court made
in para 17 in the case of 1992 A.I.R 1175 Mulakhraj V/s.
Satish Kumar .......... “In cases of circumstantial evidence
motive bears important significance. Motive always locks up
in the mind of the accused and some time it is difficult to
unlock. People do not act wholly without motive. The failure
to discover the motive of an offence does not signify it's non
existence. The failure to prove motive is not fatal as a matter
of law. Proof of motive is never an indispensable for
conviction. When facts are clear it is immaterial that no
motive has been proved. Therefore, absence of proof of
motive does not break the link in the chain of circumstances
connecting the accused with the crime, nor militates against
the prosecution case.” In the present case, from the proved
circumstances it is clear that the motive was to undermine
the faith of public in good governance and create the
atmosphere of fear and insecurity in the minds of citizens
of this country and disturb the fine fabric of society and it
is done by causing the explosion at the German Bakery.
The circumstances brought on record by the prosecution
234
shows that the Accused did everything to carry out the
object of conspiracy of causing the terrorist act by
explosion at German Bakery. The circumstances taken
together or considered cumulatively, unerringly point to the
involvement of the Accused in the crime and are consistent
with his involvement in the conspiracy.
191] Even if the contention of Ld. Defence Advocate
is accepted that it is not proved that the mobile phone used
to trigger the explosion at German Bakery is one and the
same which is purchased by the Accused, all the other
circumstances are so impeccable that they are consistent
with the hypothesis of guilt of the Accused. No other
hypothesis is possible. Viewed from any angle, the only
presumption or inference which comes out is that the
Accused had a close nexus with the absconding Accused
persons and they all hatched the conspiracy to cause terror
attack by killing innocent people by use of explosive. The
act of the Accused is nothing less than furthering the act
of terrorism. The circumstances against the Accused
clearly show that the acts of the Accused are consistent
with the functioning of the members of banned
organization as deposed by P.W.103 in his evidence where
he says that while studying the functioning of banned
organizations such as SIMI, Indian Mujahiddin, LashkarE
235
Toyba, it was revealed that their members function by
hiding their personality, they make the use of pseudonym,
prepare false documents, do the financial transactions
clandestinely, create false evidence and function in such a
way that they appear to be at one place where they actually
are not present. The cumulative effect of the proved
circumstances have unerringly established that the
Accused was the member to the conspiracy to cause the
terrorist act pursuant to which, the explosion at the
German Bakery, Pune is caused which killed 17 persons
and injured 58 persons. The circumstantial evidence
brought on record by the prosecution is cogent and
sufficient to prove that the Accused is one of the co
conspirator in the conspiracy to cause the terrorist act and
kill innocent people and caused damage to the property of
others. The punishment for the offence of conspiracy is the
same, as if he had abetted such offence.
Other Offences Under the Indian Penal Code.
191] One of the Charge is under Section 302 of
I.P.C. The offence of murder is defined in Section 300 of
I.P.C. It reads thus: Except in the cases hereinafter excepted
culpable homicide is murder, if the act by which the death is
done with the intention of causing death or
Secondly if it is done with the intention of causing such bodily injury as the offender knows to be likely to
236
cause the death of the person to whom the harm is caused or
Thirdly If it is done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death or
Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
It would not be out of place to refer the observations
of the Honourable Apex Court in the case of State (N.C.T of
Delhi) V/s. Navjyot Sandhu, (Parliament attack case)
reported in 2005 (11) SCC 600 made in reference to the
offence of murder and conspiracy. It is held thus:
The conspiracy to commit the offence of murder in the course of execution of conspiracy is well within the scope of conspiracy to which the Accused Afzal was a party. Therefore, he is liable to be punished under Section 120B read with Section 302 I.P.C. The punishment applicable is the one prescribed under Section 109I.P.C. In view of the phraseology of Section 120B “be punished in the same manner as if he had abetted such offence”. Section 109 I.P.C lays down that “if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, a person abetting the offence shall be punished with the punishment provided for the offence”. Thus the conspirator ,
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even though he may not have indulged in the actual criminal operations to execute the conspiracy, becomes liable for the punishment prescribed under Section 302 I.P.C.
The evidence on record clearly establishes that the
explosion at the German Bakery was the result of
conspiracy. It is already seen that 17 people died homicidal
death due to the explosion injuries. The aspect of homicidal
death is not at all disputed. The conspiracy to cause the
explosion and kill the innocent people in the course of
execution of conspiracy comes within the scope of
conspiracy to which the Accused was a party. Causing the
explosion at the public place i.e German Bakery, clearly
shows the intention to cause death or to cause bodily
injury as would in all probability cause death. If the
illustration 'D' to Section 300 of I.P.C. is seen, it is clear
that even if there is no particular person as the target to
kill, the offence is made out. Thus, the Accused is also
liable for punishment for the offence of Murder.
192] One of the Charge is under Section 307 of I.P.C. It reads thus:
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to Ten years and shall also be liable to fine and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life or to
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such punishment as is herein before mentioned.
Causing explosion with the use of explosive in the
public place by any angle, attribute the knowledge that by
the said act the people will die. While considering the Point
No.1 it is seen that 58 people sustained injuries due to the
explosion. However, they survived luckily. Merely because
they survived do not mean that they were not likely to die
due to the explosion. It is needless to state that causing
injury is not necessary to attract the offence punishable
under this section. Causing explosion by using the
explosives clearly shows the intention to kill and also
attributes the knowledge that by such act, death is likely to
be caused. The analogy applicable for the offence of
murder would also be applicable for this offence Punishable
U/s. 307 of I.P.C. Thus, the essential ingredients of this
section are established and the Charge for the said Section
is proved against the Accused beyond the reasonable
doubt.
193] One of the Charge is under Section 435 of
I.P.C. The section reads thus:
Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, damage to any property to the amount of one hundred rupees or onwards for (where the property is agricultural produce ten rupees or upwards) shall be
239
punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
The term mischief is defined in Section 425 of I.P.C. which read thus:
“Whoever, with intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or to any person cause the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief.”
While considering Point No.1 it is seen that P.W. 1
have stated that she incurred the damages of Rs. 15 Lakhs
due to the explosion at the German Bakery. The evidence
on record clearly established that there was destruction of
the property and obviously, there is wrongful loss. The
explosion is due to use of explosive substance. Causing of
explosion at the public place clearly attributes knowledge
that wrongful loss or damage to the public or property will
be caused. Being one of the member of conspiracy to cause
terrorist act such knowledge is attributable to the Accused.
Thus, the essential ingredients of this section are
established and the Charge for the said Section is proved
against the Accused beyond the reasonable doubt.
194] One of the Charge is under Section 153A (b) of
I.P.C. The Section reads thus: Promoting enmity between different groups on grounds of religion, race,place of birth, residence, language etc. and doing acts prejudicial to
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maintenance of harmony i] Whoever – a] by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on ground of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony, or feelings of enmity, hay trade or ill will between different religions, ratials, language or regional groups or castes or communities or b] commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities and which disturbes or likely to disturb the public tranquility or c] ................. shall be punished with imprisonment which may extend to three years or with fine or with both.
While considering the circumstance of mind set of the
Accused it has come in so many words from the witnesses
that the Accused used to talk of taking revenge of Babri
Masjid, Gujrat riots and used to talk of coming together for
taking revenge against the people belonging to other
religion. Such type of open talk is nothing but promoting
enmity between different religion. The said act of the
Accused squarely falls under this Section. Thus, the
essential ingredients of this section are established and the
Charge for the said Section is proved against the Accused
beyond the reasonable doubt.
195] There are Charges under Sections 465,467,468
and 474 of I.P.C. These are the offences relating to the
documents. Section 465 is the punishment for forgery.
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Forgery is defined under Section 463 of I.P.C. which says
that forgery means to make any false document with intent
to cause damage or injury to the public or to any person or
to support any claim or to cause any person to part with
property or to enter into any express or implied contract or
with intent to commit fraud or that fraud may be
committed. Section 467 is in respect of forgery of valuable
security, Will etc. Section 468 is in respect of forgery for
purpose of cheating. The evidence available on record do
not show that the Accused himself had forged the
documents which were found in his bag. It is fairly
submitted by Ld. Special P.P that there is no evidence to
show that the Accused himself had forged the documents
and used them. He submitted that only Section 474 is
made out against the Accused. Admittedly, the only
evidence in respect of forgery is that the forged documents
such as caste certificate, handicap certificate, domicile
certificate and copy of ration card were found in one of the
bag belonging to the Accused. Through the evidence of
various government officers it is established that the said
documents are not genuine and are false. The said
documents are of such a nature which are purported to be
made by the public servant in his official capacity. Section
474 makes possession of the forged document with intent
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that the same shall be used fraudulently or dishonestly as
genuine as offence. There is no explanation by the Accused
as to for what purpose he was possessing the aforesaid
forged documents. From the circumstances proved by the
prosecution it is clear that with intent to use them as
genuine the Accused had kept the forged document with
him. Thus, the essential ingredients of section 474 are
proved against the Accused and the charge for said section
is proved beyond reasonable doubt. The essential
ingredients for the offence Under Section 465, 467,468 are
not proved by the prosecution against the Accused.
Offences under Unlawful Activities (Prevention) Act, 1967. 196] As some of the words have come in most of the
sections, their definition given in the Act is necessary to be
seen.
Terrorist Gang The term Terrorist gang is defined U/s. 2 (l) of the Act
which reads thus:Terrorist gang means any association, other than terrorist organization, whether systematic or otherwise, which is concerned with , or involved in terrorist act.
Terrorists Organization.The term 'Terrorist organization' is defined U/s 2(m) of
the Act which reads thus: Terrorist organization means an organization listed in the Schedule or an organization operating under the same name as an organization so listed.
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Unlawful associationThe term 'Unlawful Association' is defined U/s 2(p) of
the Act which reads thus: i] which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity or ii] which has for its object any activity which is punishable under section 153A or section 153B of the Indian Penal Code ( 45 of 1860) or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity.
197] One of the Charge is under Section 10 (a) & (b)
of the Unlawful Activities ( Prevention) Act, 1967. The said
Section read thus:
Penalty for being member of an unlawful association, etc: Where an association is declared unlawful by a notification issued under section 3 which has become effective under sub Section (3) of that section
a] A person who i] is and continued to be a member of such association orii] takes part in meeting of such association or,
iii] contributes to, or receives or solicits any contribution for the purpose of such association or,iv] in any way assists the operation of such association shall be punishable with imprisonment for a term which may extend to two years and shall also be liable to fine and,b] A person, who is or continues to be a member of such association or voluntarily does an act aiding or promoting in any manner the objects of such association and in other case is in possession of any unlicensed fire arms,ammunition,explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of
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human life or grievous injury to any person or causes significant damage to any propertyi] and if such act has resulted in the death of any person, shall be punishable with death, or imprisonment for life and shall also be liable to fine;ii] in any other case, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
It is submitted by Ld. defence Advocate that there is
no evidence to show that the Accused is the member of
unlawful association. If the contents of above Section are
seen, even assisting or aiding or promoting the object of
such association is an offence. While considering Point
No.2 as to whether the explosion is the terrorist act, the
evidence of police officers is considered wherein it is
established that the planter of the explosive in the German
Bakery is the absconding Accused Yasin Bhatkal, who is
the member of banned organization. The organizations
which are banned are mentioned in the Schedule given at
the end of the Act and P.W.103, the Investigating officer
also deposed about the same. The evidence on record have
clearly established that the explosive capable of causing
mass destruction was found in possession of Accused.
Further, the evidence on record goes to show that the
Accused was seen with the planter of explosive, shortly
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before the explosion in which 17 persons lost their lives.
The circumstances clearly establishes that the Accused
assisted and voluntarily aided the operation of unlawful
association. Thus, the essential ingredients of this section
are established and the Charge for the said Section is
proved against the Accused beyond reasonable doubt.
198] One of the Charge is under Section 13(1)& (2)
of Unlawful Activities (Prevention) Act, 1967. The said
Section reads thus:
Punishment for Unlawful activities 1] Whoever a] Take part in or commits, or
b] advocates abets, advices or incites the commission of any unlawful activity, shall be punishable for a term which may extend to Seven years, and shall also be liable to fine.2] Whoever, in any way, assists any unlawful activity of any association declared unlawful under section 3, after the notification by which it has been so declared has become effective under subsection (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.
The term 'unlawful activity' is defined in Section 2 (O)
of he Unlawful Activities (Prevention) Act, 1967. which reads
thus:
'Unlawful Activity' in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words either spoken or written or by signs or by
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visible representation or otherwise.)i] which is intended or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession or,ii] which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India oriii] which causes or is intended to cause disaffection against India.
While considering the point No.2 it is seen that the
explosion is the activity of banned organization. In cross
examination of P.W.103 the Investigating officer, it has
come that LET is the Pakistan based Organization. The
evidence of P.W.103 further shows as to how the members
of banned organization function. Further, the
circumstances established against the Accused are
consistent with the functioning of the banned organization.
The evidence on record have clearly established that
Accused not only advocated abetted and incited the
commission of the unlawful activities but also took active
part in giving effect to the unlawful activity of causing the
explosion at the German Bakery, the object of which can be
nothing but to cause disaffection against India. The
notification imposing ban on the organizations is brought
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on record. Further, the banned organizations are
mentioned in the Schedule of the Act. Thus, the essential
ingredients of this section are established and the Charge
for the said Section is proved against the Accused beyond
reasonable doubt.
199] One of the Charge is under Section 16 (1)(a) of
the Unlawful Activities (Prevention) Act, 1967. The said
Section read thus:
Punishment for terrorist act (1) Whoever commits a terrorist act shall a] If such act has resulted in the death of any person be punishable with death or imprisonment for life and shall also be liable to fine.
It is submitted by Ld. Spl.P.P that under Section 43
(E) of Unlawful Activities (Prevention) Act, 1967, if the Arms
or explosives are recovered from the possession of Accused
and there is reason to believe that such arms or explosives
were used in the commission of such offence, presumption
is required to be drawn that the Accused has committed
such offence. Ld. defence Advocate submitted that under
the Criminal Law, no presumption can be raised against
the Accused and cited the Judgment in the case of
Harendra V/s. State of Assam reported in AIR 2008 S.C.
2467. Perusal of the said Judgment shows that it is
pertaining to the offence of murder and the presumption
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referred therein was under Section 114 of Evidence Act and
it was observed that “the Court may or may not raise a
presumption that an official act having been done was not in
due course of business, but, in a criminal case, no
presumption should be raised which does not have any
origin in any statute but would cause great prejudice to the
Accused. It is further observed that wherever Parliament
intended to lay a different standard of proof in relation to the
certain offences or certain pattern of crime, it did so and in
such a case subject to establishing some primary fact, the
burden of proof has been caste on the Respondent s and
there are a large number of statutes where the doctrine of
'reverse burden' has been applied. Save and accept those
cases where the Parliamentary statutes apply the doctrine of
reverse burden, the Courts should not employ the same
which per se would only be violative of universal declaration
of human rights but also the fundamental rights of an
accused as envisaged under article 21 of Constitution of
India. The said legal position is well settled.
200] Section 43 (E) of the Unlawful Activities
( Prevention) Act, 1967 shows that the presumption is
having the origin in the statute itself. The Section reads
thus: 43E Presumption as to offences under Section 15 In
a prosecution for an offence under section 15, if it is proved
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a] that the arms or explosives or any other substances specified in the said section were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature were used in the commission of such offence, or
b] that by the evidence of the expert the fingerprints of the accused or any other definitive evidence suggesting the involvement of the accused in the offence were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence
the Court shall presume, unless the contrary is shown, that the accused has committed such offence.
Perusal of the said provision shows that once the
aspect of possession of explosives is established, and it is
shown that similar nature of substance is used in
commission of offence, the mandatory presumption comes
into play. The Ld. Spl.P.P cited the Judgment in the case
of M. Narsingha Rao V/s. State of A.P reported in A.I.R 2001
S.C. 318 on the point of discretionary presumption and
mandatory presumption. In para 13 of this Judgment it is
observed that the expression 'may presume' and 'shall
presume' are defined in Section 4 of the Evidence Act and
the presumption falling under the formal category are
compendiously known as 'factual presumptions' or
'discretionary presumptions' and those falling under the
latter as 'legal presumptions' or 'compulsory presumptions'.
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As can be seen from the aforesaid provisions of Section 43
(E) of Unlawful Activities (Prevention) Act, 1967, the
presumption is the compulsory presumption as the word
used is 'shall presume'. It is cogently established by the
prosecution that the Explosive (RDX) is found in possession
of Accused. Except denial there is no explanation by the
Accused on the aspect of possessing the explosive
substance. There is reason to believe that the said explosive
is used in the explosion caused at German Bakery Pune
because the forensic evidence brought on record by the
prosecution have established that the explosive substance
used in causing the explosion at German Bakery and the
explosive substance seized at the instance of Accused is of
similar nature. Therefore, the presumption U/s. 43 of
Unlawful Activities (Prevention) Act, 1967 gets attracted
against the Accused. Thus, the essential ingredients of this
section are established and the Charge for the offence of
terrorist act is proved against the Accused beyond
reasonable doubt.
201] One of the Charge is under Section 18 of the
Unlawful Activities (Prevention) Act, 1967. The said Section
read thus:
Punishment for conspiracy etc Whoever conspires or attempts to commit, or advocates,abets, advises or [incites,directs or knowingly facilitates] the commission of, a
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terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
The aspect of conspiracy is already discussed while
dealing with the charge U/s. 120B of I.P.C. The
circumstances against the Accused clearly establishes that
he is one of the coconspirator to cause the Terrorist Act.
There is no difference in the word conspiracy appearing in
Section 120(B) of I.P.C and appearing in this Section. Thus,
the essential ingredients of this section are established and
the Charge for the said Section is proved against the
Accused beyond reasonable doubt.
202] One of the Charge is under Section 20 of the
Unlawful Activities (Prevention) Act, 1967. The said Section
read thus:
Punishment for being member of terrorist gang or organization
Any person who is a member of a terrorist gang, or a terrorist organization, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
The definition of Terrorist gang is already quoted. It
means any association concerned with or involved in
Terrorist act. It is proved that the Accused associated with
the absconding accused who planted the explosives. The
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association of the Accused with the absconding Accused is
nothing but the gang. Thus, the essential ingredients of
this section are established and the Charge for the said
Section is proved against the Accused beyond reasonable
doubt.
Offences under the Explosive Substances Act,1908
203] One of the Charge is under Section 3 of the
Explosive Substances Act,1908 The said Section read thus:
Section 3: Punishment for causing explosion likely to endanger life or property – Any person who unlawfully and maliciously causes by
a] any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with imprisonment for life or with rigorous imprisonment of either description which shall not be less than Ten years and shall also be liable to fine.
b] any special category explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death, or rigorous imprisonment for life, and shall also be liable to fine.
It is established by the prosecution that the explosion
at the German Bakery was caused by using research
development explosives (RDX). Further, the similar kind of
explosive is seized from the possession of the Accused.
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Under the definition 2(b) of Explosive Substances Act,1908
RDX comes in “special category explosive substance”. It is
already established that the Accused is one of the member
of the conspiracy to cause the terrorist act which was given
effect by causing explosion at the German Bakery. From
the circumstances proved by the prosecution, the
participation of the Accused in causing the said explosion
which resulted in loss of lives is proved. The act of the
accused falls within the ambit of sub section (b) of Section
3 of the Explosive Substance Act and this Charge is proved
against the Accused beyond reasonable doubt.
204] One of the Charge is under Section 4(a) & (b)
of the Explosive Substances Act,1908 The said Section
read thus:
Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property Any person who unlawfully and maliciously
a] does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property or
b] makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endager ife, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India shall, whether any explosion does or does not take place and whether any injury to person or
254
property has been actually caused or not, be punishedi] in the case of any explosive substance, with
imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine
ii] in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
The seizure of Special category explosive substance
from the possession of Accused is established. The said
possession is admittedly unlawful as the Accused had no
licence to keep it and the composition is the same as used
in causing the explosion at German Bakery. The quantity
of explosive found in possession of the Accused is such that
it is clear that it was kept maliciously with the intention to
endanger the life. Thus, the essential ingredients of this
section are established and the Charge for the said section
is proved against the Accused beyond reasonable doubt.
205] One of the Charge is under Section 5 of the
Explosive Substances Act,1908 The said Section read thus:
Punishment for making or possessing explosives under suspicious circumstances Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance under such circumstances as to give rise to a reasonable suspicion that he is not making iot or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his
255
possession or under his control for a lawful object, be punished
a] in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine. b] in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
The seizure of special explosive substance weighing
1200 grams from the possession of the Accused has been
established beyond reasonable doubt and there is
absolutely no explanation for possessing the same. By no
stretch of imagination it can be said to have been possessed
for a lawful object. There is no authorization or licence
with the Accused to possess the explosive. The forensic
evidence have established the use of same kind of special
explosive substance in causing the explosion at German
Bakery. All this give rise to a reasonable suspicion that the
special category explosive was not possessed by the
Accused for any lawful object. Thus, the essential
ingredients of this section are established and the Charge
for the said section is proved against the Accused beyond
reasonable doubt.
206] From the evidence adduced by the prosecution,
the charges punishable under sections 120(B),302,307,
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435,153(A),474 of Indian Penal Code 1860, under sections
10(a) & (b), 13(1)&(2), 16(1)(a), 18, 20 of Unlawful Activities
(Prevention) Act, 1967 and under sections 3,4(a)&(b),5 of
Explosive Substances Act, 1908 are proved beyond
reasonable doubt, the Accused is convicted for all the
aforementioned offences. The Accused is acquitted for the
offences under sections 465, 467 and 468 of Indian Penal
Code. As the offences which are proved against the
Accused, invite severe punishment, it is necessary to hear
the Accused on the point of sentence. The Accused is
informed about this and some time is given to him for
making submissions on the quantum of sentence. The
matter is adjourned to 18042013 for hearing the parties
on the point of sentence.
Date: 15042013 ( N.P. Dhote)Addl. Sessions Judge,Pune.
207] Heard Ld. Spl.P.P Shri Raja Thakre and Ld.
Advocate for Defence Mr. A Rehman and the Accused Mirza
Himayat Baig @ Ahmed Baig Inayat Mirza @ Hasan @
Yusuf on the point of sentence. It is to be noted that there
are five offences for which the Accused may be visited with
the death sentence. The offence U/s. 16 and 10 of
Unlawful Activities (Prevention) Act, 1967, offences U/s.
257
302, 120(B) of the I.P.C and Section 3 of the Explosive
Substances Act 1908 are punishable with death or
imprisonment for life.
208] The Accused stated that he belongs to poor
family and a teacher by profession and he had no intention
to kill anyone and was never absconding. He submitted
that he believe in Allah and the judicial system of this
country. He submitted that he has no concern with the
crime in hand and has been falsely implicated in this case
by the Anti Terrorist Squad. He has given two pages in
writing in which he has stated the aforementioned
submissions and also commented on the merit of the case.
According to him, the circumstances are not proved against
him.
209] It is submitted by Ld. Defence Advocate that
as per the settled position in law the mitigating
circumstances and aggravating circumstances are to be
weighed and thereafter the quantum of punishment is to
be decided. He submitted that the Accused neither had
gone to the German Bakery, nor had planted the Bomb. It
is further submitted that the Accused had no motive and
intention to commit the crime and there is no direct
evidence that the Accused manufactured the bomb. It is
further submitted that the Accused is of young age,
258
qualified as B.A. D.Ed. and a teacher and belong to poor
family having old parents, two brothers and two sisters. It
is further submitted that there is no previous conviction on
the Accused and he is not responsible for the incident. It
is submitted that leniency be shown to the Accused. He
cited following seven rulings
i] A.I.R. 1983 S.C. 957(1), ii] 2010 Cr.L.J 905 (S.C),
iii] 2009(6) S.C.C. 498, iv] 1999 (3) S.C.C.19,
v] 2011 Cr.L.J 1639(S.C), vi] 2003(7) S.C.C.141,
vii] 1996 Cr..L.J 4308.
210] On the other hand it is submitted by Ld.
Spl.P.P that the case in hand is of terrorist activity
committed by conspiracy and using the special category
substance (RDX) due to which 17 persons including some
foreign nationals are killed and the Accused is found
guilty for the various sections. He submitted that the
explosive substance was seized from the possession of
Accused. He submitted that in the facts and circumstances
of the case, the age, profession and the family background
of the Accused cannot become the mitigating
circumstances. He submitted that the Accused is
preaching and advocating the objects of banned
organizations. He submitted that case falls under the
259
category of rarest of rare case and only capital punishment
is appropriate punishment for the Accused. He cited the
following rulings.
i] 1994 (2) SCC 220. ii] unreported case of the
Honourable Apex Court in Devendrapal singh Bhullar V/s.
State of N.C.T., Delhi, delivered on 12042013.
211] It is needless to state that the extreme
punishment of death sentence can only be awarded in
rarest of rare case, as per the provisions of section 354(3) of
Cr.P.C,1973, when the conviction is for the offence
punishable with death or in the alternative with
imprisonment for life or imprisonment for a term of years,
the Judgment shall state the reasons for sentence awarded
and in the case of sentence of death, the special reasons for
such sentence. The landmark Judgments in the field of
sentencing are of the Honourable Apex Court in the case of
Bacchansing V/s. State of Punjab, A.I.R. 1980, S.C 898
and in the case of Machchising V/s. State of Punjab,
A.I.R 1983 S.C. 957. Even the submissions of both the
sides revolved around the said two landmark Judgments. It
would be proper to consider the relevant observations made
in the aforesaid two Judgments.
212] In Bachchansing's case following guidelines
260
are laid down
(a) The extreme penalty of death may be inflicted in gravest cases of extreme culpability;
(b) While imposing death sentence the circumstances of the offender are also require to be taken into consideration alongwith the circumstances of the crime;
(c) Death sentence be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime; and
(d) Extreme penalty can be imposed after striking the balance between aggravating and mitigating circumstances found in the case.
Aggravating circumstances include:
(a) If the murder has been committed after previous planing and involves extreme brutality; or
(b) If the murder involves exceptional depravity,
Mitigating circumstances include:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would
261
not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be
reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case the accused believed that he was more justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
213] In Machchising's case following additional
guidelines are laid down.
(1) When the murder is committed in extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e. g. murder by hired assassin for money or reward; or coldblooded murder for gains of a person visavis whom the murderer is in a dominating position or in a position of trust; or murder is
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committed in the course for betrayalof the motherland.
(3) When murder of a member of Scheduled Caste or minority community etc., is committed not for personal reason but in circumstances which arouse social wrath; or in cases of “bride burning” or “dowry deaths”or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or large number of
persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person visavis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community”.
214] Further in the case of Dhananjay Chaterjee @
Dhana V/s State of West Bengal, 1994(2) S.C.C 626
following are the observations made by Honourable Apex
Court in para 15.
“In our opinion, the measure of punishmentin a given case must depend upon the atrocity of thecrime, the conduct of the criminal and the defencelessand unprotected stated of the victim. Imposition of
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appropriate punishment is the manner in which the courts respond to the society's cry for justice againstthe criminals Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights ofthe criminal but also the rights of the victim ofcrime and the society at large while consideringimposition of appropriate punishment.”
215] Further, it would not be out of place to take
note of the observations made by the Honourable Apex
Court in the case of Devendrapalsing Bhullar V/s State
of N.C.T of Delhi in W.P. (Cri) D. No. 16039/2011
delivered on 12th April, 2013. Though, the said case was
for commuting the death sentence to life imprisonment due
to the long delay in executing the death sentence, the
observations are in respect of terrorism and therefore, are
relevant.
8] Even after the judgments in Bachan Singh’s case
and Machhi Singh’s case, Jurists and human rights activists
have persisted with their demand for the abolition of death
penalty and several attempts have been made to persuade
the Central Government to take concrete steps in this regard.
It is a different story that they have not succeeded because
in recent years the crime scenario has changed all over the
world. While there is no abatement in the crimes committed
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due to personal animosity and property disputes, people
across the world have suffered on account of new forms of
crimes. The monster of terrorism has spread its tentacles in
most of the countries. India is one of the worst victims of
internal and external terrorism. In the last three decades,
hundreds of innocent lives have been lost on account of the
activities of terrorists, who have mercilessly killed people by
using bullets, bombs and other modern weapons. While
upholding the constitutional validity of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (TADA) in Kartar
Singh v. State of Punjab (1994) 3 SCC 569, this Court took
cognizance of the spread of terrorism in the world in general
and in India in particular, in the following words:
“ From the recent past, in many parts of the world,
terrorism and disruption are spearheading for one reason or
another and resultantly great leaders have been
assassinated by suicide bombers and many dastardly
murders have been committed. Deplorably, determined youth
lured by hardcore criminals and underground extremists
and attracted by the ideology of terrorism are indulging in
committing serious crimes against the humanity. In spite of
the drastic actions taken and intense vigilance activated, the
terrorists and militants do not desist from triggering
lawlessness if it suits their purpose. In short, they are
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waging a domestic war against the sovereignty of their
respective nations or against a race or community in order to
create an embryonic imbalance and nervous disorder in the
society either on being stimulated or instigated by the
national, transnational or international hardcore criminals
or secessionists etc. Resultantly, the security and integrity of
the countries concerned are at peril and the law and order in
many countries is disrupted. To say differently, the logic of
the cult of the bullet is hovering the globe completely robbing
off the reasons and rhymes. Therefore, every country has
now felt the need to strengthen vigilance against the spurt in
the illegal and criminal activities of the militants and
terrorists so that the danger to its sovereignty is averted and
the community is protected.
Thus, terrorism and disruptive activities are a
worldwide phenomenon and India is not an exception.
Unfortunately in the recent past this country has fallen in the
firm grip of spiralling terrorists' violence and is caught
between the deadly pangs of disruptive activities. As seen
from the Objects and Reasons of the Act 31 of 1985,
“Terrorists had been indulging in wanton killings, arson,
looting of properties and other heinous crimes mostly in
Punjab and Chandigarh” and then slowly they expanded
their activities to other parts of the country i.e. Delhi,
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Haryana, U.P. and Rajasthan. At present they have
outstretched their activities by spreading their wings far and
wide almost bringing the major part of the country under the
extreme violence and terrorism by letting loose
unprecedented and unprovoked repression and disrup
tion unmindful of the security of the nation, personal liberty
and right, inclusive of the right to live with human dignity of
the innocent citizens of this country and destroying the
image of many glitzy cities like Chandigarh, Srinagar, Delhi
and Bombay by strangulating the normal life of the citizens.
Apart from many skirmishes in various parts of the country,
there were countless serious and horrendous events
engulfing many cities with bloodbath, firing, looting, mad
killing even without sparing women and children and
reducing those areas into a graveyard, which brutal
atrocities have rocked and shocked the whole nation.
Everyday, there are jarring pieces of information through
electronic and print media that many innocent, defenceless
people particularly poor, politicians, statesmen, government
officials, police officials, army personnel inclusive of the
jawans belonging to Border Security Force have been
mercilessly gunned down. No one can deny these stark facts
and naked truth by adopting an ostrich like attitude
completely ignoring the impending danger. Whatever may be
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the reasons, indeed there is none to deny that.”
39]........ Time and again, (Machhi Singh’s case, Ediga
Anamma’s case, Sher Singh’s case and Triveniben’s case), it
has been held that while imposing punishment for murder
and similar type of offences, the Court is not only entitled,
but is duty bound to take into consideration the nature of the
crime, the motive for commission of the crime, the magnitude
of the crime and its impact on the society, the nature of
weapon used for commission of the crime, etc.. If the murder
is committed in an extremely brutal or dastardly manner,
which gives rise to intense and extreme indignation in the
community, the Court may be fully justified in awarding the
death penalty. If the murder is committed by burning the
bride for the sake of money or satisfaction of other kinds of
greed, there will be ample justification for awarding the
death penalty. If the enormity of the crime is such that a
large number of innocent people are killed without rhyme or
reason, then too, award of extreme penalty of death will be
justified. ........................
40] We are also of the view that the rule enunciated in
Sher Singh’s case, Triveniben’s case and some other
judgments that long delay may be one of the grounds for
commutation of the sentence of death into life imprisonment
cannot be invoked in cases where a person is convicted for
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offence under TADA or similar statutes. Such cases stand
on an altogether different plane and cannot be
compared with murders committed due to personal
animosity or over property and personal disputes. The
seriousness of the crimes committed by the terrorists
can be gauged from the fact that many hundred
innocent civilians and men in uniform have lost their
lives. At times, their objective is to annihilate their
rivals including the political opponents. They use
bullets, bombs and other weapons of mass killing for
achieving their perverted political and other goals or
wage war against the State. While doing so, they do
not show any respect for human lives. Before killing
the victims, they do not think even for a second about
the parents, wives, children and other near and dear
ones of the victims. The families of those killed suffer
the agony for their entire life, apart from financial
and other losses.
216] Now, let me examine whether the case in hand
falls under the category of rarest of rare case on the
aforesaid principles and after considering the mitigating
and aggravating circumstances.
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Mitigating Circumstances.
1] 33 years of age.2] Teacher by profession.3] No previous conviction.4] Poor family background.
Aggravating circumstances.
In the present case all aggravating circumstances are
present and they are summarized as follows:
1] Proved circumstances show that the terrorist act is done after planning or hatching the conspiracy.
2] The terrorist act is committed by using explosive substance.
3] Proved circumstances show that the Accused possessed the special explosive substance (RDX). This shows that the Accused acted as the custodian of the explosive.
4] Proved circumstances show that the Accused actively participated in causing the terrorist act which resulted in the death of 17 persons and causing injury to 58 persons.
5] Proved circumstances show that all the acts of the Accused were hidden or clandestine and calculated. This shows that he is fully trained in giving effect to such dastardly act by misleading his presence.
6] The crime of which the Accused is the part and parcel is of utmost gravity.
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7] The Accused did not show any remorse at any point of time.
8] The choice of locality/place i.e German Bakery, Koregaon Park, which is the crowded place and the time to cause the terrorist act is such that when there are more prospects of the public gathering and it is such a place where the foreigners came in large numbers since they come to stay in nearby Osho Ashram. This shows that such place is chosen for the explosion which would ensure maximum loss of the life including that of foreigners and property.
9] The motive behind the crime is to strike terror in the people of this country and to threaten the security of the country.
10] The persons who got killed and got injured were not even known to the Accused and they all were innocent people. None of them were having any enmity with him.
11] The proved circumstances shows that the manner of terrorist act was diabolic in nature.
12] Crime of terrorism is in itself an aggravating circumstance as observed by the Honourable Apex Court in para 503(4) in the case of Yakub Memon V/s. State of Maharashtra in Criminal Appeal No. 1728/2007.
13] The crime is such, which has shaken the collective conscious of the society.
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217] If the above referred aggravating and mitigating
circumstances are considered against each other, it is clear
that the aggravating circumstances are far more weighty as
compared to the mitigating circumstances. The mitigating
circumstances gets completely shadowed by the aggravating
circumstances. The crime in question is not arising out of
any personal enmity or from the property dispute or of like
nature. The balance of aggravating and mitigating
circumstances do not tilt in favour of the Accused. Perusal
of the authorities cited by the Ld. Defence Advocate show
that they are the cases for the offence of murder and were
held not to come under the category of rarest of rare cases.
It is rightly submitted by Ld. Spl.P.P that none of the case
cited by the Ld. Defence Advocate is pertaining to the
offence of Terrorist Act. The said cases pertains to the
offence of murder committed out of family feud, out of love
affair, out of kidnapping and murder for ransom, out of
dispute over small house, out of money invested in
lottery/money circulation scheme, out of rivalry and out of
outcasting from participation in the affairs of the
community. The facts and circumstances of the said cases
are totally different. What is to be looked is the aggravating
and mitigating circumstances while awarding the sentence.
218] The submissions made by the Accused are on
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the merits and demerits of the case and so, have no
bearing at this stage of the case. The court has already
come to the conclusion that the Accused was the part of
the same conspiracy which was executed by way of
explosion at the German Bakery. There is nothing to show
that the Accused was under the honest and bonafide belief
that he was morally justified in committing terrorist act
which killed 17 persons and injured 58 persons.There is no
material to show that the Accused was under any duress
or domination to commit the crime. Proved circumstances
show that the Accused voluntarily indulged in conspiracy
and the terrorist act. The evidence on record shows that
the Accused is greatly influenced by the ideology of
terrorism and he is held guilty for the conspiracy. There are
no chances of his reformation. From the proved
circumstances it is established that the Accused also
participated in the heinous terrorist act of causing the
Bomb Blast leaving several innocent Indians and foreign
nationals dead and injured leaving the injured victim to live
miserable remaining life and also miserable lives of the
families of the victims who were killed. Undoubtedly, the
present crime is grave and also against the humanity and
committed to undermine the image and security of the
country. As the Accused is citizen of this country there is
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betrayal of motherland due to his involvement in the crime.
The crime is committed by the use of explosive which, by
all means attributes the knowledge about the destruction it
would cause. As seen from the proved circumstances the
Accused did everything in a calculated manner and he is
also the threat for the society. From the proved
circumstances, the offence falls under the category of
rarest of rare case. In view of the proved facts and
circumstances of the case and taking into consideration
the observations made by the Honourable Apex Court in
the aforementioned Judgments, the only punishment
which the Accused deserves is that of death penalty.
Hence, by answering the points, I proceed to pass the
following order.
ORDER
1] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 16(1)(a) of the Unlawful Activities
(Prevention) Act, 1967 and sentenced to death and to pay
fine of Rs. 500/ (Five hundred only), in default to pay fine,
to undergo imprisonment for one month. The Accused be
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hanged by the neck till he is dead.
2] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 10(b) of the Unlawful Activities
(Prevention) Act, 1967 and sentenced to death and to pay
fine of Rs. 500/ (Five hundred only), in default to pay fine,
to undergo imprisonment for one month. The Accused be
hanged by the neck till he is dead.
3] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 10(a) of the Unlawful Activities
(Prevention) Act, 1967 and sentenced to suffer
Imprisonment for two years and to pay fine of Rs. 500/
(Five hundred only), in default to pay fine, to undergo
imprisonment for one month.
4] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 18 of the Unlawful Activities
(Prevention) Act, 1967 and sentenced to suffer
imprisonment for life and to pay fine of Rs. 500/ (Five
hundred only), in default to pay fine, to undergo
imprisonment for one month.
5] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
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punishable under section 20 of the Unlawful Activities
(Prevention) Act, 1967 and sentenced to suffer
imprisonment for life and to pay fine of Rs. 500/ (Five
hundred only), in default to pay fine, to undergo
imprisonment for one month.
6] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 13(1)(b) of the Unlawful Activities
(Prevention) Act, 1967 and sentenced to suffer
imprisonment for Seven years and to pay fine of Rs. 500/
(Five hundred only), in default to pay fine, to undergo
imprisonment for one month.
7] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 13(2) of the Unlawful Activities
(Prevention) Act, 1967 and sentenced to suffer
imprisonment for Five years.
8] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 120B of Indian Penal Code and
sentenced to death and to pay fine of Rs. 500/ (Five
hundred only), in default to pay fine, to undergo
imprisonment for one month. The Accused be hanged by
the neck till he is dead.
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9] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 302 read with 120B of Indian
Penal Code and sentenced to death and to pay fine of Rs.
500/ (Five hundred only), in default to pay fine, to
undergo imprisonment for one month. The Accused be
hanged by the neck till he is dead.
10] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 307 read with 120B of Indian
Penal Code and sentenced to suffer imprisonment for life
and to pay fine of Rs. 500/ (Five hundred only), in default
to pay fine, to undergo imprisonment for one month.
11] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 435 read with 120B of Indian
Penal Code and sentenced to suffer imprisonment for
Seven years and to pay fine of Rs. 500/ (Five hundred
only), in default to pay fine, to undergo imprisonment for
one month.
12] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 153A of Indian Penal Code and
sentenced to suffer imprisonment for Three years.
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13] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 474 of Indian Penal Code and
sentenced to suffer imprisonment for Seven years and to
pay fine of Rs. 500/ (Five hundred only), in default to pay
fine, to undergo imprisonment for one month.
14] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is acquitted for the offences
punishable under sections 465, 467 and 468 of the Indian
Penal Code.
15] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 3(b) of Explosive Substances
Act,1908 read with section120B of Indian Penal Code and
sentenced to death and to pay fine of Rs. 500/ (Five
hundred only), in default to pay fine, to undergo
imprisonment for one month. The Accused be hanged by
the neck till he is dead.
16] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 4(a)&(b) of Explosive Substances
Act,1908 and sentenced to suffer rigorous imprisonment for
life and to pay fine of Rs. 500/ (Five hundred only), in
default to pay fine, to undergo imprisonment for one
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month.
17] The Accused Mirza Himayat Baig @ Ahmed Baig
Inayat Mirza @ Hasan @ Yusuf is convicted for the offence
punishable under section 5 of Explosive Substances
Act,1908 and sentenced to suffer rigorous imprisonment for
life and to pay fine of Rs. 500/ (Five hundred only), in
default to pay fine, to undergo imprisonment for one
month.
18] All these sentences shall run concurrently.
19] The Record & Proceeding and the Muddemal
property be preserved for the trial of the absconding
Accused.
20] The Proceedings shall be submitted to the
Honourable High Court and sentence of death shall not be
executed, until it is confirmed by the Honourable High
Court.
Pune. ( N.P.Dhote)Date:18042013 Addl. Sessions Judge, Pune.
I affirm that the contents of this P.D.F file Judgment are the same word for word as per the original Judgment.
Name of the Stenographer : Sou. S.U.Duraphe Stenographer H.G.
Judgment signed by P.O.on 22042013Judgment uploaded on: 29042013
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